Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Monardella linoides ssp. viminea (Willowy Monardella), 65662-65683 [06-9095]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 71, Number 216 (Wednesday, November 8, 2006)]
[Rules and Regulations]
[Pages 65662-65683]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-9095]



[[Page 65661]]

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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Monardella linoids ssp. viminea (Willowy Monardella); Final 
Rule

Federal Register / Vol. 71, No. 216 / Wednesday, November 8, 2006 / 
Rules and Regulations

[[Page 65662]]


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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 Monardella linoides ssp. viminea (Willowy 
Monardella)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for Monardella linoides ssp. viminea 
(willowy monardella) under the Endangered Species Act of 1973, as 
amended (Act). In total, approximately 73 acres (ac) (30 hectares (ha)) 
fall within the boundaries of the critical habitat, all in San Diego 
County, California.

DATES: This rule becomes effective on December 8, 2006.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, will be 
available for public inspection, by appointment, during normal business 
hours, at the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley 
Road, Carlsbad, CA 92011 (telephone 760-431-9440). The final rule, 
economic analysis, and map of critical habitat will also be available 
via the Internet at https://www.fws.gov/carlsbad/.

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

SUPPLEMENTARY INFORMATION:

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, only 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 originally proposed for 
designation, we evaluated the benefits of designation in light of 
Gifford Pinchot Task Force v. United States Fish and Wildlife Service 
(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 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 timeframe 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.
    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

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of compliance with the National Environmental Policy Act (NEPA) (42 
U.S.C. 4321 et seq.). These costs, which are not required for many 
other conservation actions, directly reduce the funds available for 
direct and tangible conservation actions.

Background

    In this document, it is our intent to discuss only those topics 
directly relevant to the development and designation of critical 
habitat or relevant information obtained since the final listing. For 
more information on the biology and ecology of Monardella linoides spp. 
viminea, refer to the final listing rule published in the Federal 
Register on October 13, 1998 (63 FR 54938), and the proposed critical 
habitat rule published in the Federal Register on November 9, 2005 (70 
FR 67956).

Previous Federal Actions

    Previous Federal actions for Monardella linoides ssp. viminea can 
be found in the proposed critical habitat rule published on November 9, 
2005 (70 FR 67956). 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, and, if prudent, publish a proposed critical habitat 
rule for M. l. ssp. viminea in the Federal Register on or before 
October 30, 2005, and publish a final critical habitat rule on or 
before October 30, 2006. The proposed rule was published November 9, 
2005 (70 FR 67956). This final rule complies with the June 2, 2003, 
settlement agreement.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for Monardella linoides ssp. viminea 
during two comment periods, one associated with the publication of the 
proposed critical habitat rule on November 9, 2005 (70 FR 67956), and 
the second associated with the publication of a notice of availability 
for the draft economic analysis (DEA) of the proposed critical habitat 
designation, published in the Federal Register on June 1, 2006 (71 FR 
31137). We contacted appropriate Federal, State, and local agencies; 
scientific organizations; and other interested parties and invited them 
to comment on the proposed rule and the DEA.
    During the first comment period that opened on November 9, 2005, 
and closed on January 9, 2006, we received six comments directly 
addressing the proposed critical habitat designation, four from peer 
reviewers and two from organizations or individuals. We did not receive 
any requests for a public hearing. During the comment period that 
opened on June 1, 2006, and closed on July 3, 2006, we received one 
additional comment addressing the proposed critical habitat designation 
and/or the DEA.
    Overall, two commenters supported the designation of critical 
habitat for Monardella linoides spp. viminea and none opposed the 
designation. Five letters included comments or information, but did not 
express support or opposition to the proposed critical habitat 
designation. Comments received were grouped into general issue 
categories relating to the proposed critical habitat designation and 
the DEA and are addressed in the following summary and incorporated 
into the final rule as appropriate.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from six knowledgeable individuals 
with scientific expertise that included familiarity with the species, 
the geographic region in which the species occurs, and conservation 
biology principles. We received responses from four peer reviewers. The 
peer reviewers generally disagreed with our decision not to treat the 
southern populations of the species as a separate subspecies, our 
decision to exempt areas from critical habitat under section 4(a)(3) of 
the Act, and our proposal to exclude areas from critical habitat under 
section 4(b)(2) of the Act. Additionally, peer reviewers provided 
information, clarifications, and suggestions to improve the final 
critical habitat rule, particularly the primary constituent elements 
(PCEs). We address peer reviewer comments in the following summary and 
incorporated them into the final rule as appropriate.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding critical 
habitat for the Monardella linoides spp. viminea, and we address them 
in the following summary.

Peer Reviewer Comments

    (1) Comment: Three peer reviewers commented on the taxonomic 
identification of Monardella linoides spp. viminea. These comments 
emphasized that M. l. spp. viminea should be split into two species 
with the southern population designated as a new species, M. stoneana, 
based on Elvin and Sanders (2003).
    Our Response: We are aware of the taxonomic change and split 
proposed by Elvin and Sanders (2003). The Service evaluated this 
information and concluded that, although the authors may be correct in 
their assessment of these populations, they did not provide adequate 
supportive evidence in their paper (Bartel and Wallace 2004). We have 
concluded that, until a more comprehensive taxonomic paper is published 
that examines all of the relevant taxa or the genus Monardella at a 
broader scale, we will continue to use the taxonomic identification of 
Monardella linoides spp. viminea as identified in the final listing 
rule.
    (2) Comment: Three peer reviewers recommended that the Service 
analyze all canyons occupied by the species for inclusion as critical 
habitat, including the upper watershed portions of Unit 1 (Sycamore 
Canyon), Unit 2 (Sycamore, West Sycamore, San Clemente Canyon, Rose, 
Elanus, and Spring Canyons), and Unit 4 (San Clemente Canyon), 
regardless of Service policy on exclusions and exemptions.
    Our Response: Section 4 of the Act requires that we designate 
critical habitat based on the best scientific or commercial information 
available. Therefore, all habitat known to be occupied and potentially 
occupied by the subspecies was analyzed to determine which areas may 
contain the features that are essential to the conservation of 
Monardella linoides spp. viminea. Habitat occupied at the time of 
listing may be included in critical habitat only if the essential 
features required by the species may require special management or 
protection. We do not include areas where existing management is 
sufficient to conserve the species.
    Section 4(b)(2) of the Act directs us to consider the economic 
impact, national security impact, and any other relevant impacts of 
specifying any particular area as critical habitat. An area may be 
excluded from critical habitat if it is determined that the benefits of 
exclusion outweigh the benefits of specifying a particular area as 
critical habitat, unless the failure to designate such an area as 
critical habitat will result in the extinction of the species. As 
discussed in the proposed rule (70 FR 67956), we have determined that 
the benefits of excluding non-Federal lands covered by the San Diego 
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Species Conservation Plan (MSCP) outweigh the benefits of including 
non-Federal lands as critical habitat. We have included a more detailed 
analysis of the benefits of this habitat conservation plan (HCP) in 
this final rule under the Conservation Partnerships on Non-Federal 
Lands section below.
    Additionally, section 4(a)(3) of the Act prohibits the Service from 
designating as critical habitat any lands or other geographic areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an Integrated Natural Resources Management 
Plan (INRMP) prepared under Section 101 of the Sikes Act (16 U.S.C. 
670a), if the Secretary of the Interior determines, in writing, that 
such plan provides a benefit to the species for which critical habitat 
is proposed for designation. As discussed in the proposed rule, the 
lands at Marine Corps Air Station (MCAS) Miramar are covered by an 
approved INRMP that identifies sensitive natural resources, including 
Monardella linoides spp. viminea, and imposes conservation requirements 
and monitoring and management actions to protect the species. 
Therefore, the INRMP provides a benefit to M. l. spp. viminea. For more 
information, see the Relationship of Critical Habitat to Military 
Lands--Application of Section 4(a)(3) section below for a detailed 
discussion.
    (3) Comment: Three peer reviewers commented on the lack of primary 
constituent elements (PCEs) applying to Unit 7 (Marron Valley), Unit 8 
(Otay Lakes), and Unit 9 (Cedar Canyon).
    Our Response: We appreciate the peer reviewers' comments regarding 
the ecology of Units 7, 8, and 9 (Marron Valley, Otay Lakes, and Cedar 
Canyon, respectively), and have amended the information in the PCEs as 
they relate to Monardella linoides spp. viminea. Specifically, we added 
boulders, stones and cracks of bedrock in rocky gorges to describe the 
growing substrate needed for growth, reproduction, and dispersal in the 
southern range of M. l. spp. viminea. For more information see the 
Primary Constituent Elements section below.
    (4) Comment: One peer reviewer recommended the addition of 
``unaltered ephemeral wash ecosystem with no development'' to the PCEs.
    Our Response: PCE 2 includes ephemeral drainages as a habitat 
requirement for the subspecies. The importance of a natural hydrologic 
regime needed to maintain washes, sandbars, and rocky gorges where 
Monardella linoides ssp. viminea grows was also discussed in the Water 
and Physiological Requirements section of the proposed critical habitat 
rule (70 FR 67956) and in the final listing rule (63 FR 54938).
    (5) Comment: One peer reviewer recommended the addition of 
``continuous ephemeral wash habitat between plants in the upper-most 
and lower-most reaches'' to the list of PCEs.
    Our Response: The ephemeral wash habitat between known occurrences 
is important for the conservation of Monardella linoides ssp. viminea 
and was one of the criteria used to identify proposed critical habitat 
for this species. The importance of this area was also discussed in the 
Primary Constituent Elements section of the proposed rule. We 
appreciate the comment and have clarified this point in this final 
rule. For more information, see the Criteria Used To Identify Critical 
Habitat section below.
    (6) Comment: One peer reviewer recommended the addition of 
``pollinators and sufficient habitat for pollinators to survive'' to 
the list of PCEs.
    Our Response: As stated in the proposed critical habitat rule, we 
are unaware of any studies documenting specific pollinators of 
Monardella linoides ssp. viminea. We did not determine the area needed 
to maintain pollinators to be essential in the proposed or this final 
critical habitat designation.
    (7) Comment: One peer reviewer commented that part of Unit 2 (San 
Clemente Canyon part of the Sycamore, West Sycamore, San Clemente 
Canyon, Rose, Elanus, and Spring Canyons), below I-15, might not be 
essential habitat because the canyon is now a perennial stream due to 
alterations in the hydrological system.
    Our Response: According to recent survey information, the stream 
flowing through this canyon still functions as an ephemeral stream, 
although the ground water may be higher in this area than other 
locations along the stream. Occurrences in this part of Unit 2 were 
present at the last survey in 2002 (Kassebaum, 2006, p. 3).
    (8) Comment: One peer reviewer recommended that the Service 
renegotiate with the plaintiffs to produce a new proposed designation 
of critical habitat that splits Monardella linoides spp. viminea into 
two species and have peer review occur earlier in the proposal stage.
    Our Response: We believe we used the best available information in 
the development of the proposed critical habitat rule. With the 
exception of comments received regarding the taxonomic identification 
of the southern population of Monardella linoides spp. viminea (see our 
response to comment 1), we did not receive information during 
the comment periods to suggest that the information used in the 
development of the proposal was flawed. Since the Service continues to 
recognize the taxonomic identification of M. l. spp. viminea as 
presented in the final listing rule, the areas we determined to be 
essential to the conservation of the subspecies would have been the 
same as those outlined in the proposed critical habitat rule, 
regardless of the taxonomic issue.
    (9) Comment: One peer reviewer commented that the Service should 
recheck data for Elanus Canyon, because the INRMP indicates that the 
subspecies does not occur in this canyon.
    Our Response: We received no information to refute the INRMP. 
Comments received in response to publication of the proposed critical 
habitat rule from MCAS Miramar (Pharris 2006, p. 1) indicate that the 
information in their INRMP regarding occupied habitat on their land is 
up-to-date and correct, including information that the species occurs 
in Elanus Canyon.
    (10) Comment: One peer reviewer provided additional information on 
the benefits of the MCAS Miramar's INRMP. Besides Monardella linoides 
spp. viminea being managed under a level II conservation effort, MCAS 
Miramar has developed a long-term monitoring plan including monitoring 
and a habitat enhancement project to be initiated in 2006.
    Our Response: We appreciate the additional information regarding 
MCAS Miramar's ongoing management and monitoring actions for the 
subspecies and have included the new information in this final rule. 
For more information see the Relationship of Military Lands to Critical 
Habitat--Application of Section 4(a)(3) section below.
    (11) Comment: One peer reviewer commented that the source reference 
for survey data on lands owned by the City of San Diego and under 
private ownership outlined in Table 1 of the proposed rule was 
incorrectly referenced to GIS data from MCAS Miramar.
    Our Response: We appreciate the correction and have provided the 
corrected citations. Private lands in Sycamore Canyon (pre-2000), City 
of San Diego lands in the West Sycamore Canyon (pre-2000), and State 
lands in Otay Lakes (2000) had incorrect references to the GIS layer 
provided by MCAS (no date). The correct references are CNDDB (2005) for 
the private lands

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in Sycamore Canyon (pre-2000), and GIS layer from the Service (2000) 
for the City of San Diego lands in the West Sycamore Canyon (pre-2000) 
and State lands in Otay Lakes (2000).
    (12) Comment: One peer reviewer recommended that the Service review 
current California Department of Fish and Game Natural Diversity 
Database (CNDDB) and herbarium specimens at Rancho Santa Ana Botanic 
Garden, University of California (UC)-Riverside, UC-Irvine, and the San 
Diego Natural History Museum to identify any additional occurrences 
before finalizing critical habitat boundaries.
    Our Response: We reviewed the most current CNDDB records (2006) and 
herbarium specimens from the four organizations listed above and found 
four new or expanded records for this species that were submitted to 
CNDDB after the publication of the proposed rule (70 FR 67956). These 
records were recorded for Monardella stoneana (occurrence numbers 1, 2, 
7, and 9), which we consider as Monardella linoides spp. viminea (see 
response to comment 1). Each of the four new occurrences are 
within areas identified as habitat essential for the conservation of M. 
l. spp. viminea in the proposed rule. Therefore, this new information 
does not change the final critical habitat designation.
    (13) Comment: One peer reviewer commented that the final rule 
should clearly state that the consequence of the Gifford Pinchot 
decision reflects the Director of the Service's guidance and that this 
guidance should be spelled out clearly.
    Our Response: The Service has provided clarification of the 
consequence of the Gifford Pinchot decision in this final rule. For 
more information, see Application of the Jeopardy and Adverse 
Modification Standards for Actions Involving Effects to Monardella 
linoides spp. viminea and Its Critical Habitat section below.
    (14) Comment: One peer reviewer recommended deleting paragraphs 
that describe section 3(5)(A) of the Act since that section is not 
applicable to the rule.
    Our Response: We have not included the paragraphs describing 
section 3(5)(A) of the Act in this final rule because no habitat was 
determined not to meet the definition of critical habitat under section 
3(5)(A) of the Act.
    (15) Comment: One peer reviewer recommended that the explanation of 
the new Section 4(a)(3)(b) should quote the statute instead of 
paraphrasing, and should explain what constitutes a ``benefit'' under 
the law or Service guidelines.
    Our Response: In this final rule, we quote the statute and provide 
clarification of what constitutes a benefit under section 4(a)(3)(b) 
(see section titled Relationship of Military Lands to Critical 
Habitat--Application of Section 4(a)(3)). As stated below, MCAS 
Miramar's INRMP will benefit the species by providing species 
management under a level II conservation effort that includes avoiding 
or minimizing the effect of planning action on endangered species and 
wetlands. In addition to the station-wide population census, MCAS 
Miramar has a long-term monitoring plan in place, and has planned a 
habitat enhancement project to be implemented in 2006.
    (16) Comment: One peer reviewer commented that the Service has not 
made a clear statement about the determination of habitat being 
exempted on MCAS Miramar. The Service has shown a benefit, because the 
core of the northern population is located on the base, but the Service 
should show that Monardella linoides spp. viminea is adequately 
protected.
    Our Response: We believe the level II conservation effort 
adequately protects the subspecies. Additionally, the MCAS Miramar 
conducts a station-wide population census under a long-term monitoring 
plan and has initiated a habitat enhancement project that will benefit 
the species. Refer to section entitled Relationship of Military Lands 
to Critical Habitat--Application of Section 4(a)(3) for more 
information on this exemption.
    (17) Comment: One peer reviewer recommended adding a summary table 
that shows acres of occupied habitat broken down by acres protected, 
planned for protection, and acres not targeted for protection.
    Our Response: A summary table outlining this information is 
provided in Table 1 of the draft economic analysis (DEA) of the 
proposed critical habitat designation for willowy monardella (CRA 
International 2006). In this final rule, we have provided acreages for 
occupied areas exempted from proposed critical habitat and excluded 
from final critical habitat based on benefits provided by MCAS 
Miramar's IRNMP, the San Diego County MSCP, and the Bureau of Land 
Management's (BLM) Otay Mountain wilderness designation. For more 
information, see Relationship of Military Lands to Critical Habitat--
Application of Section 4(a)(3) section below for a detailed discussion.
    (18) Comment: One peer reviewer commented that our conclusion that 
``any management plan will almost always provide more benefit than the 
critical habitat designation'' is not reasonable.
    Our Response: As stated in the Supplementary Information section of 
the proposed critical habitat rule, section 7(a)(2) of the Act limits 
adverse effects to the species either through jeopardy or destruction 
or adverse modification of its habitat where there is a Federal nexus. 
It does not affect purely State or private actions on State or private 
land, nor does it require positive habitat improvements or enhancement 
of the species' status. Thus, the Service believes that any management 
plan that has enhancement or recovery as the management standard will 
almost always provide more benefit than the designation of critical 
habitat.
    (19) Comment: One peer reviewer commented that the Service and BLM 
should work together to prepare a fire suppression plan for the 
wilderness area (Otay Mountain) that would minimize the likelihood of 
fire suppression activities destroying plants. The peer reviewer also 
recommended adding a discussion of how designation of critical habitat 
could help accomplish the development of such a plan.
    Our Response: The Service agrees that development of a fire 
suppression plan could minimize impacts to Monardella linoides spp. 
viminea plants and other sensitive species and their habitats, and 
looks forward to working with BLM to prepare a fire suppression plan 
for the wilderness area (Otay Mountain). Because occupied habitat for 
M. l. spp. viminea on Otay Mountain is well known to BLM, designation 
of critical habitat would not appreciably improve identification of the 
species and its habitat. Moreover, the designation of critical habitat 
would not impose any requirement on BLM to develop a fire suppression 
plan. The Service will carefully consider the impacts of fire 
suppression plans on the species and its habitat on Otay Mountain in 
future consultations with BLM under section 7 of the Act.

Public Comments Related to Distribution and Status

    (20) Comment: One commenter indicated that Monardella linoides ssp. 
viminea still occurs in Carroll Canyon, because the Environmental 
Impact Report for the Carroll Canyon Business Park states that not all 
plants were to be removed. The commenter also thought that harvested 
plants from Carroll Canyon were going to be planted back to Rose Canyon 
in addition to other options, but not at Lopez Canyon because that 
canyon already had its own source of local plants, grown from seed, 
which are being re-established.

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    Our Response: The Service's biological opinion for the Carroll 
Canyon Business Park states that all plants, estimated to total 122 in 
number, would be removed from Carroll Canyon, and that these plants 
should be considered for transplantation to Lopez Canyon (USFWS 2003, 
pp. 7 and 8). Rose Canyon was not part of the proposed action for the 
Carroll Canyon Business Park consultation. The final sites for 
transplantation will depend on the outcome of genetic testing currently 
underway (USFWS 2003, p. 7).
    (21) Comment: One commenter indicated that Murphy Canyon may still 
have Monardella linoides ssp. viminea outside of MCAS Miramar.
    Our Response: As stated in the proposed rule, we are aware of only 
two documented occurrences of the subspecies in Murphy Canyon, both 
located on MCAS Miramar (CNDDB 1997, occurrence numbers 15 and 30; 
CNDDB 2001, occurrence numbers 15 and 30). However, the subspecies has 
not been documented there since 2002, and is believed to have been 
extirpated (Kassebaum 2005).
    (22) Comment: One commenter indicated that Cemetery Canyon contains 
suitable habitat, and it should be designated as unoccupied critical 
habitat.
    Our Response: Monardella linoides spp. viminea is believed to have 
been extirpated from Cemetery Canyon prior to the species' listing in 
1998 (CNDDB 2001, occurrence number 3; Elvin and Sanders 2003, p. 428). 
This site is documented as having an altered drainage pattern (CNDDB 
2001), and is, therefore, unlikely to contain the PCEs required by this 
species. Thus, Cemetery Canyon is not considered to have habitat with 
features essential to the conservation of this subspecies. 
Additionally, we feel there is sufficient habitat designated for 
critical habitat without designating Cemetery Canyon; the habitat of 
all known populations is already protected or will be designated as 
critical habitat.
    (23) Comment: One commenter suggested that overgrazing, not fire, 
may have caused the loss of Monardella linoides ssp. viminea in the 
vicinity of Otay Lake.
    Our Response: The statement in the proposed critical habitat rule 
regarding the fire at Otay Lake was intended to demonstrate that, 
although severe fire could be detrimental to the plant, Monardella 
linoides spp. viminea is adapted to fire and survey observations 
support this (City 2004). We do not have any information to suggest 
that overgrazing may have caused the loss of the subspecies in the 
vicinity of Otay Lake.
    (24) Comment: One commenter suggested that hydrology changes and 
lack of weed management caused the decline of Monardella linoides spp. 
viminea observed in Sycamore Canyon, rather than drought as mentioned 
in the proposed rule.
    Our Response: The statement in the proposed critical habitat rule 
that drought may have contributed to the subspecies' decline in 
Sycamore Canyon is based on survey reports written by the City of San 
Diego (City). According to these reports, observations from the yearly 
surveys suggest that rainfall patterns have influenced the population 
at Sycamore Canyon (City 2002, p. 3; City 2003, p. 3; City 2004, p. 3). 
Observations included other sites, but the greatest numbers of dormant 
or dead plants were found at the Sycamore Canyon survey site in 2002. 
While changes in hydrology or lack of weed management may have affected 
the species in Sycamore Canyon, the survey reports did not contain any 
information relating the subspecies' decline to these potential 
impacts.
    (25) Comment: Three commenters suggested that Monardella linoides 
spp. viminea should be split into two species with the southern 
population being designated as a new species, based on Elvin and 
Sanders (2003).
    Our Response: Please refer to our response to comment  1.

Public Comments Related to Protection Provided by Critical Habitat

    (26) Comment: One commenter disagreed with the statement that 
designating critical habitat provides little additional protection to 
species, based on an article in BioScience (Taylor et al. 2005, pp. 
360-367) that indicates otherwise.
    Our Response: As discussed in the Supplementary Information section 
and other sections of this rule, we believe that, in most cases, 
various conservation mechanisms provide greater incentives and 
conservation benefits than does the designation of critical habitat. 
These include the section 4 recovery planning process, section 6 
funding to the States, and cooperative programs with private and public 
landholders and Tribal nations. Critical habitat designation can 
provide an additional level of species protection by focusing 
specifically on the impacts to habitat loss, and can address cumulative 
effects of habitat loss in certain circumstances, but this protection 
can only be provided if there is a Federal nexus for agencies that are 
planning actions that may impact the designated critical habitat. It is 
our experience that landowners generally react negatively to having 
their property designated as critical habitat, and they are less 
inclined to cooperate in the conservation of the species in question as 
a consequence. Conversely, cooperative conservation efforts in the 
absence of critical habitat often provide greater conservation benefits 
to the species.

Comments Related to Exclusions and Exemptions From Critical Habitat

    (27) Comment: One commenter stated that critical habitat should be 
designated on all extant populations regardless of an existing HCP or 
INRMP. Additionally, the commenter stated that INRMPs do not provide 
adequate protection since political pressure can allow impacts that are 
not anticipated.
    Our Response: Refer to our responses to comments 2, 
10, and 15. Our experience under the MCAS Miramar 
INRMP is that the Marine Corps has demonstrated a continuing commitment 
to implement the plan.

Summary of Changes From Proposed Rule

    In preparing the final critical habitat designation for Monardella 
linoides spp. viminea, we reviewed and considered comments from peer 
reviewers and the public on the proposed designation of critical 
habitat published on November 9, 2005 (70 FR 67956), as well as public 
comments on the DEA published on June 1, 2006 (71 FR 31137). As a 
result of comments received on the proposed rule and the DEA, and a 
reevaluation of the proposed critical habitat boundaries, we made 
changes to our proposed designation, as follows:
    (1) The PCEs were modified to include the range in variability of 
habitat for all known populations of Monardella linoides spp. viminea. 
The modifications in this final rule include adding a description of 
habitat with essential features in the southern portion of the range of 
M. l. spp. viminea to the sections entitled Space for Individual and 
Population Growth and Normal Behavior, Water and Physiological 
Requirements, and Primary Constituents for Monardella linoides spp. 
viminea. PCE 1 was revised to include boulders and stones and cracks of 
bedrock in rocky gorges to describe the growing substrate needed for 
growth, reproduction, and dispersal of M. l. spp. viminea in the 
southern portion of its range. PCE 2 was revised to include rocky 
gorges to describe the drainages needed to maintain the necessary 
dynamic habitat processes for the southern range of M. l. spp. viminea. 
PCE 3 was revised to include the

[[Page 65667]]

chaparral habitat type to describe the adjacent habitat that allows for 
adequate sunlight for nutrient uptake for photosynthesis in the 
southern range of M. l. spp. viminea.
    (2) We re-evaluated areas determined to contain habitat with 
essential features in Unit 1 (Sycamore Canyon), and removed areas that 
did not contain the PCEs for the subspecies. These revisions resulted 
in the removal of the 1 ac of land owned by the Padre Dam Municipal 
Water District, and the removal of 42 ac (17 ha) of private land, 
reducing the final critical habitat acreage for Unit 1 from 115 ac (47 
ha) to 73 ac (30 ha).

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 pursuant to 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. 
Conservation is a process which contributes to improving the status of 
the species. Individual actions may still be considered conservation 
even though in and of themselves they do not remove the species' need 
for protection under the Act.
    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 geographical 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, 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 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).) Areas outside of the geographic areas occupied by the 
species at the time of listing may be included in critical habitat only 
if we determine that such areas are essential for the conservation of 
the species. Accordingly, 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 
would be 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), and 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 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.

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 designate as critical 
habitat, we consider those physical or biological features (primary 
constituent elements, PCEs) that are essential to the conservation of

[[Page 65668]]

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.
    The known primary constituent elements required for Monardella 
linoides spp. viminea are derived from the biological needs of the M. 
l. spp. viminea as described below and in the proposed critical habitat 
designation published in the Federal Register on November 9, 2005 (70 
FR 67956).

Primary Constituent Elements for Monardella linoides spp. viminea

    Under our regulations, we are required to identify the known 
physical and biological features (PCEs) essential to the conservation 
of the Monardella linoides spp. viminea. All areas considered for 
designation as critical habitat for M. l. spp. viminea were within the 
geographical areas occupied by the species at the time it was listed 
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 subspecies and the requirements of the habitat to 
sustain the essential life history functions of the subspecies, we have 
determined that the Monardella linoides spp. viminea's PCEs are:
    (1) Coarse, rocky, sandy alluvium on benches, stabilized sandbars, 
channel banks, sandy washes, and/or among boulders and stones, and/or 
in cracks of bedrock in rocky gorges 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 that periodically scour riparian 
vegetation and redistribute alluvial material by eroding and developing 
stream channels, benches, sandbars, and rocky gorges, thus maintaining 
the necessary dynamic habitat processes for Monardella linoides spp. 
viminea; and
    (3) Coastal sage, riparian scrub, or chaparral with an open and 
semi-open canopy and little or no herbaceous understory situated along 
ephemeral drainages and adjacent floodplains to ensure that Monardella 
linoides spp. viminea receives adequate sunlight for nutrient uptake 
for photosynthesis.
    This designation is designed for the conservation of those areas 
containing PCEs necessary to support the life history functions that 
were the basis for the proposal. Because not all life history functions 
require all the PCEs, not all critical habitat will contain all the 
PCEs.
    Units are designated 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, while some units 
contain only a portion of the PCEs necessary to support the species' 
particular use of that habitat. Where a subset of the PCEs is present 
at the time of designation, this rule protects those PCEs and thus the 
conservation function of the habitat.

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 Monardella linoides 
spp. viminea. This includes data in the final rule listing the species 
as endangered (published in the Federal Register on October 13, 1998 
(63 FR 54938)), reports submitted during section 7 consultations, 
research published in peer-reviewed articles and agency reports, and 
regional Geographic Information System (GIS) coverages. We have also 
reviewed available information that pertains to the habitat 
requirements of the subspecies. The material included data in reports 
submitted during section 7 consultations; research published in peer-
reviewed articles and agency reports; and regional Geographic 
Information System (GIS) coverages. We designated no areas outside the 
geographical area occupied by the species at the time of listing.
    We used the following criteria to identify habitat that contains 
the features essential to Monardella linoides spp. viminea: (1) Areas 
known to be occupied at the time of listing or known to be currently 
occupied; and (2) ephemeral washes and drainage areas associated with 
documented occurrences.
    When determining critical habitat boundaries, we made every effort 
to avoid including developed areas such as buildings, paved areas, and 
other structures that lack PCEs for the Monardella linoides spp. 
viminea within the boundaries of critical habitat. 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 of this final rule 
have been excluded by text in the rule and are not designated as 
critical habitat. Therefore, Federal actions limited to these areas 
would not trigger section 7 consultation, unless they affect the 
species or adjacent critical habitat.
    We are designating critical habitat in areas that we determined 
were occupied at the time of listing, and that contain sufficient 
primary constituent elements (PCEs) to support life history functions 
essential for the conservation of the species. Lands were designated 
based on sufficient PCEs being present to support life processes of 
Monardella linoides spp. viminea. Some lands contain all PCEs and 
support multiple life processes. Some lands contain only a portion of 
the PCEs necessary to support M. l. spp. viminea's particular use of 
that habitat.
    Section 10(a)(1)(B) of the Act authorizes us to issue permits for 
the take of listed animal species incidental to otherwise lawful 
activities. An incidental take permit application must be supported by 
a habitat conservation plan (HCP) that identifies conservation measures 
that the permittee agrees to implement for the species to minimize and 
mitigate the impacts of the requested incidental take. Often HCPs also 
incorporate conservation measures to benefit listed plant species 
although take of plant species is not prohibited under the Act. We 
often exclude non-Federal public lands and private lands that are 
covered by an existing operative HCP and executed implementation 
agreement (IA) under section 10(a)(1)(B) of the Act from designated 
critical habitat where we determine that the benefits of exclusion 
outweigh the benefits of inclusion as discussed in section 4(b)(2) of 
the Act.
    A brief discussion of each area designated as critical habitat is 
provided in the unit descriptions below. Additional detailed 
documentation concerning the essential nature of these areas is 
contained in our supporting record for this rulemaking.

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 (63 FR 54938), threats to 
Monardella linoides ssp. viminea include habitat alteration resulting 
from

[[Page 65669]]

urban development, sand and gravel mining, human activities (i.e., off-
road vehicle (ORV) use and trampling), and invasion of nonnative 
species. These activities could impact the PCEs determined to be 
essential for conservation of M. l. ssp. viminea, and thus require 
special management considerations or protections.
    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 (2006, p. 4) attribute the disappearance of terraces in 
Lopez Canyon to increased erosion associated with urban runoff from 
upstream development. 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). 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. Such reductions in downstream water 
flow may result 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). 
Special management may be required to reduce impacts to M. l. ssp. 
viminea habitat resulting from alterations in the hydrologic regime 
associated with development in the local watershed. Such management may 
include 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.
    Alteration of the hydrologic regime can also lead to an increase in 
native and nonnative plant species throughout riparian areas where 
Monardella linoides 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 2006, p. 39). 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, in which more drought tolerant plants 
could expand into M. l. ssp. viminea habitat and create unnaturally 
high canopy cover or dense riparian vegetation, rendering the habitat 
unsuitable for M. l. ssp. viminea. Invasive species control may be 
required to maintain an open or semi-open canopy of coastal sage and 
riparian scrub with minimal herbaceous understory, as is required for 
M. l. ssp. viminea (PCE 3) to persist.
    Human activities (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 for 
Monardella linoides ssp. viminea habitat. For example, heavy trampling 
may erode or denude stream banks and washes, thereby reducing or 
eliminating available habitat (PCE 1). Special management (i.e., bank 
replacement or stabilization) and prohibitions against ORV use during 
the rainy season may be required to maintain the substrate and reduce 
impacts to M. l. ssp. viminea habitat resulting from human use within 
the local watershed.

Critical Habitat Designation

    The areas described below constitute our best assessment of areas 
occupied at the time of listing that meet the definition of critical 
habitat. Table 1 outlines the area determined to meet the definition of 
critical habitat, including the area excluded from the final critical 
habitat designation, and the one area designated as final critical 
habitat for Monardella linoides spp. viminea.

Table 1.--Amount of Land Determined To Meet the Definition of Critical Habitat, Amount of Land Excluded From the
 Final Critical Habitat Designation, and Amount of Land Designated Critical Habitat for Monardella linoides spp.
                                                     Viminea
----------------------------------------------------------------------------------------------------------------
                                       Land meeting the      Land excluded or
          Geographic area               definition of         exempted  from             Critical habitat
                                       critical habitat      critical habitat
----------------------------------------------------------------------------------------------------------------
Unit 1 Sycamore Canyon............  73 ac (30 ha)........  0 ac (0 ha).........  73 ac (30 ha)
Unit 2 MCAS Miramar...............  1,863 ac (754 ha)....  1,863 ac (754 ha)*..  0 ac (0 ha)
Unit 3 Sycamore, West Sycamore and  207 ac (84 ha).......  207 ac (84 ha) \1\..  0 ac (0 ha)
 Spring Canyons.
Unit 4 San Clemente Canyon........  9 ac (4 ha)..........  9 ac (4 ha) \1\.....  0 ac (0 ha)
Unit 5 Elanus Canyon..............  13 ac (5 ha).........  13 ac (5 ha) \1\....  0 ac (0 ha)
Unit 6 Lopez Canyon...............  77 ac (31 ha)........  77 ac (31 ha) \1\...  0 ac (0 ha)
Unit 7 Marron Valley..............  42 ac (17 ha)........  42 ac (17 ha) \1\...  0 ac (0 ha)
Unit 8 Otay Lakes.................  146 ac (59 ha).......  146 ac (59 ha) \1\..  0 ac (0 ha)
Unit 9 Otay Mountain..............  67 ac (27 ha)........  67 ac (27 ha) \2\...  0 ac (0 ha)
                                   -----------------------------------------------------------------------------
    Totals........................  2,497 ac (1,011 ha)..  2,424 ac (981 ha)...  73 ac (30 ha)
----------------------------------------------------------------------------------------------------------------
*Exempted from critical habitat under section 4(a)(3) of the Act in the proposed rule (70 FR 67956).
\1\ Excluded from final critical habitat under section 4(b)(2) based on the San Diego MSCP.
\2\ Excluded from final critical habitat under section 4(b)(2) based on the BLM's Wilderness designation and
  Memorandum of Understanding (MOU) with the MSCP.

    Below, we present a brief description of the area included in the 
final designation and reasons why this area meets the definition of 
critical habitat for Monardella linoides spp. viminea.

Unit 1: Sycamore Canyon

    Unit 1 consists of 73 ac (30 ha) in the Sycamore Canyon area and 
supports one of the largest occurrences of Monardella linoides ssp. 
viminea (CNDDB 2001). This unit was known to be occupied at the time of 
listing and is currently known to be occupied. Unit 1 contains all of 
the PCEs identified for M. l. ssp. viminea and represents 1 of the 10 
specific areas in San Diego County that support this species and 1 of 
only 15

[[Page 65670]]

occurrences of M. l. ssp. viminea (see proposed critical habitat 
designation for more information on species distribution; 70 FR 67956). 
Given the restricted range and low numbers of occurrences, this unit is 
necessary to minimize the risk of extinction from random events and 
urban development. In Unit 1, habitat with features essential to the 
conservation of Monardella linoides ssp. viminea may require special 
management to minimize impacts by nonnative invasive weeds; fire; 
indirect and direct effects of development, including altered 
hydrology; and recreational activities. The majority of lands within 
Unit 1 are in an area proposed to be set aside as an on-site preserve 
to benefit M. l. ssp. viminea conservation in this section of Sycamore 
Canyon.
    All of Unit 1 is located on private lands within the City of 
Santee. These private lands are the site of the being proposed for the 
Fanita Ranch development project. Fanita Ranch is currently developing 
an HCP that will serve as the foundation for the City of Santee's 
subarea plan under the MSCP. As stated in the proposed critical habitat 
rule (70 FR 67956), we would have considered excluding this area from 
the final designation if we had received a proposed or approved HCP 
that provides benefits for Monardella linoides ssp. viminea, or had 
entered into an approved conservation agreement with Fanita Ranch that 
provides assurances of adequate conservation measures to be implemented 
by Fanita Ranch to protect and manage for the species on their lands. 
We did not receive an HCP or enter into a conservation agreement, and, 
thus, we are not excluding lands owned by Fanita Ranch from this final 
designation of critical habitat.

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. In our 
regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. 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.'' However, recent decisions by the 5th and 9th Circuit 
Court of Appeals have invalidated this definition. Pursuant to current 
national policy and the statutory provisions of the Act, destruction or 
adverse modification is determined on the basis of whether, with 
implementation of the proposed Federal action, the affected critical 
habitat would remain functional (or retain the current ability for the 
primary constituent elements to be functionally established) to serve 
the intended conservation role for 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 species proposed for listing or result in destruction or adverse 
modification of proposed critical habitat. This is a procedural 
requirement only. However, once a proposed species becomes listed, or 
proposed critical habitat is designated as final, the full prohibitions 
of section 7(a)(2) apply to any Federal action. The primary utility of 
the conference procedures is to maximize the opportunity for a Federal 
agency to adequately consider proposed species and critical habitat and 
avoid potential delays in implementing their proposed action as a 
result of the section 7(a)(2) compliance process, should those species 
be listed or the critical habitat designated.
    Under conference procedures, the Service may provide advisory 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The Service may 
conduct either informal or formal conferences. Informal conferences are 
typically used if the proposed action is not likely to have any adverse 
effects to the proposed species or proposed critical habitat. Formal 
conferences are typically used when the Federal agency or the Service 
believes the proposed action is likely to cause adverse effects to 
proposed species or critical habitat, inclusive of those that may cause 
jeopardy or adverse modification.
    The results of an informal conference