Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Berberis nevinii, 5552-5580 [07-472]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 72, Number 24 (Tuesday, February 6, 2007)]
[Proposed Rules]
[Pages 5552-5580]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-472]



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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 Berberis nevinii (Nevin's barberry); Proposed Rule

Federal Register / Vol. 72, No. 24 / Tuesday, February 6, 2007 / 
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU84


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for Berberis nevinii (Nevin's barberry) 
under the Endangered Species Act of 1973, as amended (Act). The 
proposal includes approximately 417 acres (ac) (169 hectares (ha)) of 
land in Riverside County, California, that meet the definition of 
critical habitat for B. nevinii. Of this, we propose to exclude 385 ac 
(156 ha) of non-Federal land from the final designation under section 
4(b)(2) of the Act, leaving a proposed final designation of 32 ac (13 
ha) of Federal land.

DATES: We will accept comments from all interested parties until April 
9, 2007. We must receive requests for public hearings, in writing, at 
the address shown in the ADDRESSES section by March 23, 2007.

ADDRESSES: If you wish to comment on the proposed rule, you may submit 
your comments and materials identified by RIN 1018-AU84, by any of the 
following methods:
    (1) You may send comments by electronic mail (e-mail) to 
fw8cfwocomments@fws.gov. Include ``RIN 1018-AU84'' in the subject line.
    (2) You may fax your comments to Jim Bartel, Field Supervisor, 
Carlsbad Fish and Wildlife Office at 760-431-9624.
    (3) You may mail or hand-deliver your written comments and 
information to Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife 
Office, 6010 Hidden Valley Road, Carlsbad, CA 92011.
    (4) You may submit your comments at the 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 
(telephone 760-431-9440).

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office at the address or telephone number listed 
under ADDRESSES. Persons who use a telecommunications device for the 
deaf (TDD) may call the Federal Information Relay Service (FIRS) at 
800-877-8339, 7 days a week, 24 hours a day.

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 the benefit of designation will outweigh 
any threats to the species due to designation;
    (2) Specific information on the amount and distribution of Berberis 
nevinii habitat; what habitat or habitat features are essential to the 
conservation of this species and why; and which areas occupied at the 
time of listing containing these features should be included in the 
critical habitat designation, and which areas not occupied at the time 
of listing but currently occupied should be included in the final 
designation, and why;
    (3) The geographical extent, number of plants, and/or reproductive 
status of native Berberis nevinii occurrences, particularly those in 
the Loma Linda Hills area (vicinity of San Timoteo Canyon and Scott 
Canyon) in San Bernardino County and those in western Riverside County 
(including in the vicinity of Vail Lake, the Agua Tibia Mountain 
foothills (Cleveland National Forest), in the Soboba Badlands east of 
the San Jacinto Wildlife Area, the Jurupa Hills area, and near 
Temecula);
    (4) Specific information on three historical Berberis nevinii 
records from Los Angeles County, two from the Arroyo Seco near Pasadena 
(CNDDB element occurrence 8 and 9) and one from the Big Tejunga Wash 
near San Fernando (CNDDB element occurrence 10), such as whether the 
species still exists in this area and where;
    (5) Whether any areas not currently known to be occupied by 
Berberis nevinii, but essential to the conservation of the species, 
should be included in the designation;
    (6) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (7) Information that demonstrates a species-specific pollinator-
plant relationship for Berberis nevinii; information on seed dispersal 
mechanisms and dispersal distance for Berberis nevinii; whether seed 
banks exist for this species and, if so, for how long and under what 
conditions; and whether such information should be applied to or 
considered a primary constituent element for the species;
    (8) Our proposed exclusion of Berberis nevinii habitat covered 
under the approved Western Riverside County Multiple Species Habitat 
Conservation Plan (MSHCP) and whether the benefits of excluding these 
areas outweigh the benefits of their inclusion under section 4(b)(2) of 
the Act (see Relationship of Critical Habitat to Approved Habitat 
Conservation Plans (HCPs)--Exclusion Under Section 4(b)(2) of the Act 
for details on the Western Riverside County MSHCP). If the Secretary 
determines the benefits of including these lands outweigh the benefits 
of excluding them, they will not be excluded from final critical 
habitat;
    (9) Additional information regarding management plans covering 
lands managed by the Bureau of Land Management (BLM) on Oak Mountain 
and by the United States Forest Service (USFS) on Cleveland National 
Forest, and whether these plans provide specific management for 
Berberis nevinii such that consideration of exclusion of these lands 
under section 4(b)(2) of the Act would be appropriate;
    (10) Any foreseeable economic, national security, or other 
potential impacts resulting from the proposed designation and, in 
particular, any impacts on small entities; and
    (11) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). Please include ``Attn: RIN 1018-AU84'' 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 
comments must be received by the date specified in the DATES section in 
order to be considered.

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    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 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.

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, 483 species, or 37 percent of the 1,311 listed species 
in the United States under the jurisdiction of the Service, have 
designated critical habitat. We address the habitat needs of all 1,311 
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 these measures may make the difference between extinction and 
survival for many species.
    In considering exclusions of areas proposed for designation, we 
evaluate 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 court 
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. 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 designating 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 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 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

    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 the biology and ecology of Berberis nevinii, refer to 
the final listing rule published in the Federal Register on October 13, 
1998 (63 FR 54956).

Species Description

    Berberis nevinii is a 3 to 13 foot (ft) (1 to 4 meter (m)) tall 
rhizomatous,

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evergreen shrub in the barberry family (Berberidaceae) that is endemic 
to southern California. This species naturally occurs in scattered 
locations, ranging from the foothills of the San Gabriel Mountains in 
northern Los Angeles County, south and east to the Loma Linda Hills in 
southern San Bernardino County, and south to near the foothills of the 
Peninsular Ranges of southwestern Riverside County (63 FR 54958; 
California Natural Diversity Database (CNDDB) 2006). Berberis nevinii 
generally occurs between 900 and 2,000 ft (300 and 650 m) in elevation 
(63 FR 54958), with scattered occurrences found outside this elevation 
range (California Native Plant Society (CNPS) 2001, p. 96; CNDDB 2006). 
This species generally grows on sandy soils in low-gradient washes, 
alluvial terraces, and canyon bottoms, along gravelly wash margins, or 
on coarse soils on steep, generally north-facing slopes in association 
with the following plant communities: alluvial scrub, cismontane (e.g., 
chamise) chaparral, coastal sage scrub, oak woodland, and/or riparian 
scrub or woodland (Boyd 1987, pp. 2, 7; Boyd 1989, pp. 6-8; 63 FR 
54958; CNPS, 2001, p. 96; CNDDB 2006). While it is typically found 
growing on soils of sedimentary origin (Boyd 1987, p. 3), B. nevinii is 
also found on clay soils originating from gabbro bedrock and in 
association with metasedimentary substrates and springs or seeps (Soza 
2003).

Species Distribution

    Berberis nevinii appears never to have been common, even within its 
limited range (Neihaus 1977, p. 2; Mistretta and Brown 1989, p. 7). Its 
historic distribution probably consisted of fewer than 30 scattered 
occurrences in Los Angeles, San Bernardino, and Riverside Counties (63 
FR 54958), and possibly San Diego County (Neihaus 1977, p. 1; Reiser 
2001, unpaginated; CNDDB 2006). This species was first discovered in 
1882 in the San Fernando Valley near Los Angeles (Gray 1895, p. 69; 
Wolf 1940, unpaginated). This was likely one of the most extensive 
occurrences of the species consisting of approximately 100 plants 
scattered over 1 to 2 miles (1.6 to 3.2 kilometers (km)) of gravel 
washes southeast of the City of San Fernando (Wolf 1940, unpaginated). 
However, the species is presumed extirpated from this location (Boyd 
1987, p. 3).
    Berberis nevinii was introduced into horticulture around 1920 (Wolf 
1940, unpaginated) and was subsequently planted at numerous sites 
throughout the species' range (Boyd 1987, p. 2; Boyd and Banks 1995, 
unpaginated; Reiser 2001, unpaginated). The availability of B. nevinii 
in the nursery trade and the introduction of cultivated specimens into 
native habitats have contributed to confusion regarding the species'' 
native range. Table 1 summarizes our current understanding of B. 
nevinii's occurrence, origin, and status, by county, for records in the 
CNDDB (2006). Additional occurrence records not in the CNDDB, and 
therefore not included in Table 1, are discussed below.

 Table 1.--Known Occurrences of Berberis Nevinii in the California Natural Diversity Database (2006) and Status
                                                  by County \1\
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                                                   Extant,      Extant,
              County                 Extant,\2\   cultivated    unknown     Extirpated    Unknown     Other \5\
                                       native       origin       origin        \3\       Status \4\
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Los Angeles.......................            1            4            1            4            3            1
San Bernardino....................            2            0            0            2            0            0
Riverside.........................           16            1            1            0            0            1
San Diego.........................            0            1            0            0            0            1
                                   -----------------------------------------------------------------------------
    Total.........................           19            6            2            6            3            3
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\1\ Other records that are not in the California Natural Diversity Database (CNDDB) are discussed below.
\2\ Extant = still existing.
\3\ Extirpated = no longer existing.
\4\ Possibly extirpated or unknown status.
\5\ Location questionable and/or may be the same as another CNDDB record.

    As stated in the final listing rule (63 FR 54956, October 13, 
1998), the majority of native Berberis nevinii occurrences were located 
in two geographic areas: In the vicinity of Vail Lake and Oak Mountain 
in western Riverside County (16 occurrences collectively consisting of 
200 to 250 individuals) and in San Francisquito Canyon on the Angeles 
National Forest in Los Angeles County (130 to 250 individuals) (63 FR 
54957 and 54958). The majority of B. nevinii plants in the Vail Lake/
Oak Mountain area were located on private lands, with a few plants on 
BLM lands north of Vail Lake and on the Cleveland National Forest 
southeast of Vail Lake (63 FR 54958). At the time of listing, two other 
native occurrences were known from private lands in the Loma Linda 
Hills area in southern San Bernardino County, one consisting of single 
large individual and the other consisting of seven individuals (Boyd 
1987, pp. 5, 7; CNDDB 1997); in addition, a single naturally-occurring 
plant was known from Lopez Canyon in the foothills of the San Gabriel 
Mountains on the Angeles National Forest in Los Angeles County (63 FR 
54958). Other B. nevinii occurrences were known or suspected to be of 
cultivated origin, and were located primarily on private lands.
    We are aware of several occurrences of Berberis nevinii that have 
been identified since the final listing rule (63 FR 54956, October 13, 
1998). One occurrence is at the mouth of Cobal Canyon at the south base 
of the San Gabriel Mountains in Los Angeles County; it consists of 
three plants adjacent to a fire road in the Claremont Hills Wilderness 
Park (CNDDB 2006). The location of these individuals and the presence 
of other introduced plant species nearby has led to speculation that B. 
nevinii was planted here (Soza and Boyd 2000, p. 4). We are also aware 
of several occurrences in western Riverside County from the vicinity of 
Vail Lake/Oak Mountain, the Soboba Badlands, Jurupa Hills, and the 
Temecula area that have been identified since the species was federally 
listed. Of these, two occurrences in the Jurupa Hills and two 
occurrences in the Temecula area have presumably been extirpated due to 
residential or agricultural development. The Soboba Badlands 
occurrence, east of the San Jacinto Wildlife Area, is presumed extant, 
as are those in the vicinity of Vail Lake and Oak Mountain (Service 
2004, p. 331).

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    In total, we are aware of 32 records of Berberis nevinii in the 
vicinity of Vail Lake and Oak Mountain that were documented by multiple 
observers between 1987 and 1990 (Service 2004, p. 331). These records 
were compiled in association with the Western Riverside County Multiple 
Species Habitat Conservation Plan (MSHCP) (MSHCP records). According to 
location descriptions, some MSHCP records appear to be duplicates of 
CNDDB records, although they are not always mapped the same (Service 
GIS data 2006). Many of the MSHCP records overlap spatially and others 
are recorded in close proximity to each other, making it difficult to 
determine if each record is a distinct occurrence of the species or 
separate observations of a single occurrence (Service 2004, pp. 330-
331). Accompanying data, such as number of plants, origin (native 
versus cultivated), and habitat information, is generally lacking, 
making it difficult to accurately quantify the number of distinct 
occurrences or plants in the Vail Lake area. We are seeking additional 
information to clarify and verify these occurrences, as well as those 
mentioned in the preceding paragraph (see Public Comments Solicited 
section).
    At least six extant occurrences in Los Angeles, Riverside, and San 
Diego Counties are of cultivated origin or are thought to be outplanted 
individuals originating from another part of the species' range (CNDDB 
2006; Table 1). The largest of these is in San Francisquito Canyon on 
the Angeles National Forest. This location is in the Liebre Mountains, 
a northwestern extension of the San Gabriel Mountains, which extends 
the species' overall range to the north and west in Los Angeles County. 
At the time of the final listing rule (63 FR 54956, October 13, 1998), 
we believed Berberis nevinii to be naturally occurring in San 
Francisquito Canyon. We are now aware that this species was planted in 
the bottom of the canyon in 1929 following a flood. Moreover, one of 
the individuals used in the planting originated as a seedling in the 
San Fernando Valley in Los Angeles County (Payne 1945) where the 
species is thought to no longer occur (Niehaus 1977, p. 1; Boyd 1987, 
p. 3; CNDDB 2006). Berberis nevinii appears to have naturalized 
(established as a part of the flora of a locale other than their place 
of origin; i.e., nonnative) within San Francisquito Canyon, spreading 
beyond the canyon floor where it was planted (Payne 1945) to the canyon 
slopes (Soza and Boyd 2000, p. 2; Soza and Fraga 2003, p. 1). We are 
unaware of any evidence indicating that this species naturally occurred 
in San Francisquito Canyon prior to it being planted there in 1929. 
However, Boyd (Soza and Boyd 2000, p. 3) noted that oaks in the canyon 
appear to pre-date the flood, which indicates that not all vegetation 
was scoured from the site by floodwaters and if B. nevinii naturally 
occurred in the canyon prior to this event, some individuals may have 
survived. The San Francisquito Canyon occurrence has been estimated at 
130 to 200 plants in the past (Soza and Boyd 2000, p. 2; CNDDB 2006), 
but recent surveys estimate the population at 91 plants after a fire 
burned through the entire occurrence in 2002 (Soza and Fraga 2003, p. 
2).
    No native occurrences of Berberis nevinii have been located in San 
Diego County (Reiser 2001, unpaginated). A report of this species in 
the desert foothills of Anza-Borrego near Ranchita (San Felipe Wash) in 
Eastern San Diego County remains unconfirmed (Niehaus 1977, p. 1; 
Reiser 2001, unpaginated; CNDDB 2006). Isolated plants or small stands 
(groupings of individuals) of B. nevinii may occur in the little 
explored foothills at the northern edge of the Agua Tibia Wilderness 
Area, potentially into San Diego County (Reiser 2001, unpaginated), as 
it occurs nearby in southern Riverside County (Boyd and Banks 1995, 
unpaginated; CNDDB 2006). At least two occurrences of B. nevinii in San 
Diego County are likely of cultivated origin: Torrey Pines State Park 
(Reiser 2001, unpaginated) and near the base of Mount Palomar on the La 
Jolla Indian Reservation (Boyd 1987, p. 3; Reiser 2001, unpaginated; 
CNDDB 2006).
    At least seven occurrences of Berberis nevinii have been extirpated 
(63 FR 54958), including six records in the 2006 CNDDB (Table 1) and 
potentially others from the eastern San Fernando Valley that were not 
included in the CNDDB because of inadequate data (63 FR 54961). 
Berberis nevinii has been extirpated from several historic locations in 
Los Angeles and San Bernardino Counties, including the San Fernando 
Valley and Pacoima Wash area (CNDDB 2006), the confluence of San 
Francisquito Canyon and Santa Clara River (Boyd 1987, p. 2), and north 
of the City of Claremont (CNDDB 2006). We are unable to ascertain 
whether two of the three historic records from the Arroyo Seco near 
Pasadena and one 1904 record from Big Tejunga Wash are extant and/or 
accurately mapped. A historic record of B. nevinii from south of Rim 
Forest in the San Bernardino Mountains in San Bernardino County is 
suspected to be of cultivated origin and is apparently extirpated (Boyd 
1987, p. 2). In the Loma Linda Hills area of southern San Bernardino 
County, two historic occurrences of B. nevinii from side canyons off 
San Timoteo Canyon appear to have been impacted by fire-related and/or 
landowner activities within the last 10 years (Latch 1997; Sanders 
2006). One occurrence, which consisted of a single large clonal 
individual, has been extirpated (Sanders 2006). The other occurrence 
has been reduced from seven individuals to perhaps only one or two 
(Latch 1997; Sanders 2006); we are unsure if the remaining plant(s) are 
located in southern San Bernardino County or extreme northern Riverside 
County. We are seeking additional information to clarify and verify 
these occurrences (see Public Comments Solicited section).
    The total number of Berberis nevinii may be fewer than 500 from all 
known sites; about half are naturally occurring individuals and over 
half are on private lands (CNDDB 2006; 63 FR 54958). The majority of 
occurrences consist of five or fewer plants, with many consisting of 
only one or two large (old) individuals (CNDDB 2006). Potential habitat 
within the species' range has been fairly extensively botanically 
explored and/or surveyed (Boyd 1987, p. 3), including surveys of 
potential habitat on the San Bernardino National Forest in 1988 and 
1989, which yielded no new occurrences (Mistretta 1989, unpaginated). 
Additional survey efforts for B. nevinii likely will not yield new 
large occurrences of the species. However, the discovery of new 
occurrences within the last 15 to 20 years (e.g., from Lopez Canyon in 
Los Angeles County and from western Riverside County) suggests that 
individual plants and small stands remain to be found (Boyd 1987, p. 3; 
Boyd and Banks 1995, unpaginated; Soza and Boyd 2000, p. 4). Potential 
habitat for B. nevinii may occur on the Angeles National Forest on the 
south slope of the San Gabriel and Liebre Mountains (Soza and Boyd 
2000, p. 4), potentially from Pacoima to Lopez Canyon, within the 
vicinity of San Antonio Wash, and within Cajon Canyon (Soza 2003, based 
on expertise of Boyd, Rancho Santa Ana Botanic Garden); on the San 
Bernardino National Forest in the Crafton Hills area and on the west 
side of the San Jacinto Mountains (Soza 2003); on the Cleveland 
National Forest in the front range of the Agua Tibia/Palomar Mountains, 
including the northern edge of the Agua Tibia Wilderness (Boyd and 
Banks 1995, unpaginated; Reiser 2001, unpaginated; Soza 2003); and 
south and

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east of Vail Lake (e.g., Temecula Creek drainage, the hills between 
Temecula Creek and Wilson Creek), and the canyons draining Big Oak 
Mountain north of Vail Lake (Boyd et al. 1989, p. 16; Soza 2003).
    To summarize, native, extant occurrences of Berberis nevinii 
include a single individual in Lopez Canyon in the San Gabriel 
Mountains on the Angeles National Forest in Los Angeles County (CNDDB 
2006); a single individual on private land in Scott Canyon in the Loma 
Linda Hills south of Redlands in San Bernardino County (Boyd 1987, pp. 
5, 7); one or two individuals on private land in a side canyon off San 
Timoteo Canyon near the San Bernardino/Riverside County line (referred 
to herein as the San Timoteo Canyon occurrence) (Boyd 1987, pp. 5, 7; 
Latch 1997; Sanders 2006); an unknown number of individuals in the 
Soboba Badlands east of the San Jacinto Wildlife Area (Service 2004, p. 
331); and other scattered occurrences in Riverside County, including 
the largest remaining and most significant group of native occurrences 
in the Vail Lake/Oak Mountain area in southern Riverside County 
(Service 2004, p. 331; CNDDB 2006). This latter site has many scattered 
stands of B. nevinii, each with one or more individuals, collectively 
consisting of about 200 to 250 plants (Boyd et al. 1989, p. 14; 63 FR 
54958). The majority of the individuals in the Vail Lake/Oak Mountain 
area are located on private land to the south of the lake, with the 
largest stand on the Vail Lake peninsula (formerly a ridge separating 
Kolb Creek and Temecula Creek prior to the flooding of Vail Lake). Two 
plants on Big Oak Mountain north of Vail Lake are on BLM lands, and 
five plants occur southeast of Vail Lake on the Cleveland National 
Forest, close to the Agua Tibia Wilderness Area (herein referred to as 
the Cleveland National Forest occurrence) (63 FR 54956; CNDDB 2006).

Species Reproduction

    There appears to be little to no regeneration by seed occurring at 
most Berberis nevinii sites, and low seed set (including plants bearing 
fruit without seed) and lack of viable seed has been noted over the 
years by both botanists and horticulturalists trying to obtain seed for 
propagation, even from within larger occurrences (Wolf 1940; Boyd 1987, 
pp. 3, 44, 56; Mistretta and Brown 1989, pp. 4-5; Mistretta 1994, p. 
186). According to Mistretta (1994, p. 187) and O'Brien (2001, p. 19), 
unpublished molecular studies from the early 1990s revealed almost no 
genetic diversity within B. nevinii, with one exception at Vail Lake, 
suggesting that the species has been subjected to a series of 
population bottlenecks that may have led to severe inbreeding 
depression and reproductive failure (Mistretta 1994, p. 187). However, 
Mistretta (2006) cautioned against drawing conclusions from this study 
because the techniques used, which were state-of-the-art at the time, 
require far more conjecture in determining relationships, especially at 
the population level, than newly-developed techniques. On the other 
hand, cultivators of B. nevinii have long observed an apparent lack of 
morphological differences between individual plants, even young 
seedlings (O'Brien 2001, p. 19), which may also indicate low genetic 
variation within the species.
    We know of only a few native occurrences where regeneration by seed 
may have occurred in the recent past. As noted by Nishida in Boyd 
(1987, p. 62), the largest stand of Berberis nevinii located on the 
Vail Lake peninsula consists of approximately 111 individuals of 
various sizes, including a seedling, which suggests a range of ages and 
past reproduction. Another occurrence on the peak located north of Vail 
Lake (referred to as ``Big'' Oak Mountain; Boyd et al. 1989, p. 1) 
consists of two plants: a very old one and a substantially smaller one 
at some distance to the northeast (Wallace 2006) (hereinafter, we also 
refer to this peak as ``Big Oak Mountain,'' whereas ``Oak Mountain'' 
refers to the general area to the north and west of Vail Lake). 
Additionally, fruit with seed was noted at the B. nevinii occurrence on 
Cleveland National Forest to the southeast of Vail Lake in 2006 
(Wallace 2006). The San Timoteo Canyon occurrence also contained 
individuals of several size (age) classes (Boyd 1987, pp. 51-52); 
however, regeneration by seed probably has not occurred at this site in 
many decades, and this occurrence has been at least partially destroyed 
(Sanders 2006).
    Regeneration by seed has been noted at a few naturalized (i.e., 
nonnative) stands of Berberis nevinii. The San Francisquito Canyon site 
appears to have one of the most vigorous naturally regenerating 
occurrences of the species, as indicated by a wide range of ages of 
mature individuals, the presence of numerous seedlings and immature 
plants (Boyd 1987, p. 7; Mistretta and Brown 1989, p. 10; Soza and Boyd 
2000, p. 2), and fruits containing seed (Boyd 1987, p. 7). Reproduction 
has also been observed at the Palomar site in San Diego County, a site 
presumed to be of cultivated origin (Boyd 1987, pp. 3, 73). The role 
that naturalized occurrences will have in conservation of the species 
is not known at this time. The San Francisquito Canyon occurrence may 
at some point be determined to play a recovery role because it is one 
of only three occurrences for the species that we know has more than 20 
individuals (CNDDB 2006), it is one of only a few occurrences with any 
evidence of reproduction by seed, and it may contain the only 
verifiable remnant of the extirpated San Fernando Valley population.
    According to the California Department of Fish and Game (CDFG) 
(2005, p. 272), ``the lack of reproduction and recruitment at most 
sites, and the very low number of individuals at most populations [of 
Berberis nevinii] in the absence of fire are indicative of fire 
responsive species.'' Fire is a normal occurrence in chaparral 
communities, and chaparral species, including B. nevinii, which is 
known to stump sprout (i.e., generate new growth from burnt stumps) 
following fire (Soza and Fraga 2003, p. 2; Sanders 2006), are resilient 
and/or adapted to such perturbations (Keeley 1991, p. 84; Tyler 1996, 
p. 2182. However, the specific response of B. nevinii to changes to the 
natural fire regime (fire frequency, intensity, and/or timing), such as 
has occurred or may occur in southern California's chaparral/shrublands 
due to increased urbanization, are not fully understood (63 FR 54964, 
54965).
    The final listing rule (63 FR 54956, October 13, 1998) identified 
urbanization, off-road vehicle use, brush fires, recreation, and 
roadway projects (e.g., widening) as factors contributing to the 
imperilment and/or extirpation of Berberis nevinii from within parts of 
its native range (63 FR 54961). The alluvial scrub communities within 
the San Fernando and San Gabriel valleys have been greatly modified, 
damaged, or destroyed, including several sites where B. nevinii 
presumably had occurred. Other threats to the long-term survival of the 
species, as identified in the final listing rule, include the 
introduction of invasive, nonnative plants that compete with native 
species and contribute to combustible fuel loads, and fire management 
strategies that alter natural fire processes (63 FR 54961).

Previous Federal Actions

    Berberis nevinii was listed as endangered by the State of 
California in January 1987, and federally listed as endangered on 
October 13, 1998 (63 FR 54956). In the final listing rule, we 
determined that the designation of critical habitat was not prudent 
because the designation would not be beneficial

[[Page 5557]]

to the conservation of the species. On August 10, 2004, the Center for 
Biological Diversity and the CNPS filed a lawsuit in U.S. Federal 
Court, Northern District of California against the Secretary of the 
Interior challenging the not prudent determination of critical habitat 
for B. nevinii and four other plant species that occur in southern 
California (Center for Biological Diversity et al. v. Gale Norton, 
Secretary of the Department of the Interior, C-04-3240 JL). On December 
21, 2004, a U.S. District Court Judge signed an order granting a 
stipulated settlement agreement between the parties. The Service agreed 
to propose critical habitat for B. nevinii, if prudent, on or before 
January 30, 2007, and finalize the designation on or before January 30, 
2008. We are hereby withdrawing our previous not prudent determination 
of critical habitat for B. nevinii. We have reconsidered our not 
prudent finding, and now believe that identification of primary 
constituent elements and essential areas (critical habitat designation) 
may provide educational information to individuals, local and State 
governments, and other entities. We also do not have any documentation 
that over-collection has increased significantly since the species was 
listed. We now believe that the benefits of identifying essential 
habitat for B. nevinii outweigh the potential risk of over-collection 
and thus we are now proposing critical habitat for this species.
    A recovery plan for Berberis nevinii has not yet been completed. 
For more information on previous Federal actions concerning B. nevinii, 
refer to the final listing rule published in the Federal Register on 
October 13, 1998 (63 FR 54956).

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 that 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.
    Critical habitat receives protection under section 7(a)(2) 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(a)(2) 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(a)(2) 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. Areas outside of the 
geographic area occupied by the species at the time of listing may only 
be included in critical habitat if they 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 that 
was 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), 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 and commercial 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

[[Page 5558]]

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 used the best 
scientific data available in determining areas that contain the 
features essential to the conservation of Berberis nevinii. This 
included information from the following sources: (1) Final listing rule 
(63 FR 54956, October 13, 1998); (2) CNDDB (2006); (3) California 
Native Species Field Survey Forms submitted to the CDFG; (4) herbarium 
collection records from the Consortium of California Herbaria and 
Rancho Santa Ana Botanic Garden; (5) Western Riverside County MSHCP; 
(6) botanical assessments and inventories of southern California; (7) 
management documents and survey/monitoring reports for B. nevinii on 
U.S. Forest Service land; (8) technical reports prepared by the Rancho 
Santa Ana Botanic Garden; (9) communications from species experts; (10) 
aerial photography; and (11) regional Geographic Information System 
(GIS) layers for land ownership, soils, and vegetation (California 
Wildlife Habitat Relationships (CWHR) System). We also used information 
collected by Service biologists who conducted site visits to Big Oak 
Mountain (CNDDB element occurrence 38) and the Cleveland National 
Forest (CNDDB element occurrence 31).
    We have also reviewed available information that pertains to the 
habitat requirements of Berberis nevinii. There is limited information 
on habitat requirements for this species, but the primary sources are: 
(1) CNDDB (2006); (2) California Native Species Field Survey Forms 
submitted to CDFG; (3) habitat parameters compiled by Boyd (Rancho 
Santa Ana Botanic Garden) based on the results of a field survey by 
Nishida (Rancho Santa Ana Botanic Garden technical report No. 3 (1987, 
p. 7)); (4) botanical assessment of the Vail Lake property for the 
Riverside County Planning Department (1989) and of Cleveland National 
Forest (1995); (5) monitoring data and reports for the Angeles National 
Forest (Soza and Boyd 2000 and Soza and Fraga 2003); (6) information 
from regional GIS layers for soils, vegetation, and percent slope 
values; and (7) information received from local species experts, 
including descriptions of suitable habitat by the USFS (Soza 2003) that 
were based on the expertise and extensive field experience of Boyd 
(Rancho Santa Ana Botanic Garden). A variety of other peer-reviewed and 
non-peer-reviewed articles were reviewed for background information on 
plant ecology, natural history, and biology, as well as plant response 
to fire and other disturbances in California shrubland (e.g., 
chaparral) communities.

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 or biological features (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.
    The specific primary constituent elements required for Berberis 
nevinii are derived from the biological needs of the species as 
described in the final listing rule (63 FR 54956, October 13, 1998), as 
well as information contained in this proposed rule.

Space for Growth and Reproduction

    Berberis nevinii has a limited natural distribution; it typically 
occurs in small stands (less than 20 individuals, and often only one or 
two) in scattered locations in Los Angeles, San Bernardino, and 
Riverside Counties, with the largest native occurrence (as defined by 
CNDDB) consisting of several stands and totaling about 134 individuals 
to the south of Vail Lake in Riverside County (Boyd 1987; CNDDB 2006). 
Within these areas, B. nevinii requires appropriate soils, topography, 
cover, and drainage within the landscape to provide space, food, water, 
air, light, minerals, or other nutritional or physiological 
requirements for individual and population growth and reproduction.
    Characterizing Berberis nevinii habitat is difficult due to the 
varied soils, bedrock substrates, and topography on which this species 
naturally occurs. Additionally, this species is known to tolerate a 
wide range of environmental conditions in cultivation (Mistretta and 
Brown 1989, p. 6). Berberis nevinii typically occurs at elevations from 
900 to 2,000 ft (300 to 650 m) (63 FR 54958), but most native 
occurrences and the naturalized San Francisquito population are between 
1,400 and 1,700 ft (427 to 518 m) in elevation (Boyd 1987, p. 2; CNDDB 
2006). One native occurrence on the Big Oak Mountain summit north of 
Vail Lake in Riverside County is at approximately 2,700 ft (823 m) 
elevation, and scattered naturalized occurrences are found outside the 
900 to 2,000-foot (300 to 650 m) elevation range (Boyd 1987, pp. 42, 
75; CNDDB 2006). Berberis nevinii has been found in varied topography 
from nearly flat sandy washes, terraces, benches, and canyon floors to 
gravelly wash margins, steeply-sloped banks of drainages, steep rocky 
slopes, ridges, and mountain summits (CNDDB 2006).
    Based on 1987 field surveys by Nishida, native Berberis nevinii 
occurring on slopes in Scott Canyon and south of Vail Lake were found 
in areas with slopes of 35 to 70 percent slope (Boyd 1987, pp. 7, 45, 
62, 65, 68). Other B. nevinii plants occurring on slopes in the Vail 
Lake/Oak Mountain area generally occupy areas of less than 70 percent 
slope, based on Service GIS data (2006). Naturalized (i.e., nonnative) 
occurrences are known to grow on steeper slopes (e.g., 85 to 120 
percent slope) in San Francisquito Canyon (Boyd 1987, p. 7, based on 
field surveys by Nishida). Berberis nevinii generally occurs on north, 
northeast, or northwest-facing slopes; however, exceptions to this have 
been noted, including several occurrences, both native and naturalized, 
found on south and west-facing slopes (Boyd 1987, pp. 7, 40, 77; Boyd 
et al. 1989, p. 24; Soza and Boyd 2000, p. 22; CNDDB 2006).
    Berberis nevinii is found on a variety of soils and bedrock 
substrates. Native occurrences appear to be strongly associated with 
alluvial soils or soils derived from nonmarine sedimentary based 
substrates, especially sandy arkose (sandstone derived from granitic 
material) (Boyd 1987, p. 7; Boyd and Banks 1995, unpaginated; Soza and 
Boyd 2000, p. 25). Most of the plants at Vail Lake are found in small 
stands on Temecula arkose soils around the southern end of the lake, 
with scattered individuals in the ``badlands'' to the southeast and 
southwest (Boyd and Banks 1995, unpaginated). Several small, isolated 
stands on the south flank of Big Oak Mountain are associated with 
metasedimentary substrates and springs or seeps (Boyd et al. 1989, p. 
14; Soza 2003), and two plants at the Big Oak Mountain summit occur on 
heavy adobe/gabbro type soils with high water-holding capacity formed 
from metavolcanic geology (Mesozoic basic

[[Page 5559]]

intrusive rock) (Soza 2003). The Cleveland National Forest occurrence 
is found at the contact between sedimentary (arkose) and 
metasedimentary substrates (Boyd and Banks 1995, unpaginated). Berberis 
nevinii has also been found growing on Pelona schist outcrops and 
granitic knolls (Boyd 1987, p. 7; Soza and Boyd 2000, p. 22).
    Overlying occurrence polygons with NRCS soils data, native Berberis 
nevinii occurrences appear to be associated with the following soil 
series: Riverwash at the Lopez Canyon site in Los Angeles County; sandy 
loam of the Saugus series in Scott Canyon and coarse sandy loam of the 
Metz series from the San Timoteo Canyon location in San Bernardino 
County; and at least 17 different soil series in the Vail Lake/Oak 
Mountain area in Riverside County, including Monserate sandy loams; 
Hanford coarse sandy loams; fine sandy loams of the Arlington and 
Greenfield, Pachappa, and Cajalco series; Cajalco rocky fine sandy 
loams; rocky loams of the Lodi and Las Posas series; and loams of the 
Las Posas, San Timoteo, and San Emigdio series (Service GIS data 2006). 
Additional soil series found within mapped B. nevinii occurrences 
include gullied land and riverwash primarily south of Vail Lake, and 
badland to the north and southeast of Vail Lake. Occurrences north of 
Vail Lake on the south slopes of Big Oak Mountain and its summit are 
mapped primarily as Auld clay, 8 to 15 percent slopes, Cajalco rocky 
fine sandy loam, 15 to 50 percent slopes, eroded, and Las Posas loam 
and rocky loam, 8 to 15 percent slopes, eroded. The B. nevinii site on 
the Cleveland National Forest south of Vail Lake is mapped as gullied 
land and coarse sandy loam of the Hanford series, 8 to 15 percent 
slopes, eroded (Service GIS data 2006).
    Native occurrences of Berberis nevinii are generally found growing 
in well-drained soils, and are known from xeric slopes and rock 
outcrops. According to Lenz and Dourley (1981, as cited in Mistretta 
and Brown 1989, p. 5), B. nevinii is considered a drought-tolerant 
species, but it will also accept large amounts of water in cultivation 
without apparent damage. Observations of native occurrences suggest 
that, within its general habitat, B. nevinii may be associated with 
more mesic microhabitats. Niehaus (1977, p. 2) noted that B. nevinii 
occurs mostly at the margins of dry washes in or below the foothill 
zone, but is not present in the driest portion of a wash. At some 
sites, B. nevinii is associated with species such as Lepidospartum 
squamatum and Prunus ilicifolia that require groundwater (Niehaus 1977, 
p. 2). Many of the plants in the Vail Lake area are growing on mesic 
north or northwest facing slopes. Several stands are in canyons 
draining the south flank of Big Oak Mountain and are associated with 
springs or seepages (Boyd et al. 1989, p. 14). The two plants on the 
summit of Big Oak Mountain are on clay soils with a high water-holding 
capacity. In the late spring and early summer, this site may receive 
greater moisture in the form of condensation from intrusion of marine 
air (Soza 2003).
    Berberis nevinii occurs in association with the following plant 
communities: alluvial scrub, cismontane (e.g., chamise) chaparral, 
coastal sage scrub, oak woodland, and/or riparian scrub or woodland 
(Boyd 1987, pp. 2, 7; Boyd 1989, pp. 6-8; 63 FR 54958; CNPS 2001, p. 
96; CNDDB 2006). Native B. nevinii in Lopez Canyon, Scott Canyon, and 
San Timoteo Canyon, as well as many of those found in the Vail Lake/Oak 
Mountain area, occur within the California Wildlife Habitat 
Relationships (CWHR) landcover described as coastal scrub or mixed 
chaparral (Service GIS data 2006). Berberis nevinii is occasionally 
found in coastal oak woodland in the Vail Lake/Oak Mountain area, 
characterized by open to dense stands of the large evergreen coast live 
oak (Quercus agrifolia) in close association with surrounding scrub 
vegetation (Boyd et al. 1989, p. 7). In the Vail Lake area, this 
woodland type is found primarily in sandy washes, benches, and canyons 
on north-facing slopes, near ephemeral stream channels, and/or 
associated with springs (Boyd et al. 1989, pp. 7-8). The San 
Francisquito site, where B. nevinii has apparently naturalized, also 
has some coastal oak woodland, and Q. agrifiolia is locally common 
south of B. nevinii in the canyon bottom at the Lopez Canyon site (Soza 
and Boyd 2000, pp. 23, 26). Several stands in the Vail Lake area occur 
within the CWHR landcover described as valley foothill riparian, and 
several occurrences are also partly characterized as annual grassland 
(Service GIS data 2006). The Scott Canyon site is described as having 
an abundance of annual grasses (Boyd 1987, pp. 44-48, CNDDB 2006).
    Extant, native occurrences of Berberis nevinii are often found in 
association with one or more of the following chaparral and coastal 
sage scrub species: Eriogonum fasciculatum, Artemisia californica, 
Adenostoma fasciculatum, Rhus ovata, R. trilobata, or R. integrifolia, 
Salvia mellifera, Sambucus mexicana, Prunus ilicifolia, Rhamnus crocea, 
and  Quercus berberidifolia (Boyd 1987, p. 2; CNDDB 2006). Several 
native occurrences are associated with coastal oak woodland or 
riparian/alluvial scrub vegetation, such as Quercus agrifolia, Populus 
fremontii, Salix laevigata, Platanus racemosa, Baccharis glutinosa, 
and/or Lepidospartum squamatum (CNDDB 2006). Boyd (1987, p. 2) has 
noted that certain desert floral elements such as Encelia farinosa, 
Chrysothamnus nauseosus, Artemisia tridentata, Chilopsis linearis, 
Yucca schidigera, Opuntia parryii, and Atriplex canescens are often 
characteristic of the general area and many of the specific sites where 
B. nevinii occurs in the vicinity of Vail Lake. The presence of 
typically desert floral elements likely reflects the transitional 
nature of these sites between the cismontane area to the west and the 
Colorado Desert to the east (Boyd et al. 1989, p. 4).
    Several observers have noted that seedlings and immature Berberis 
nevinii tend to occur in areas with some measure of protection, either 
in the shade or cover of another plant (Boyd 1987, pp. 77-78, based on 
field surveys by Nishida; Mistretta and Brown 1989, p. 10). This 
suggests the need for some fire-free period to allow for canopy growth. 
However, Nishida (Boyd et al. 1987, p. 77) noted that mature 
individuals were located in areas where they were exposed to full 
sunlight, and Reiser (2001, unpaginated) noted that this species 
frequently towers above associated subshrubs. Based on observations in 
the field, Nishida suggested that seedlings may be shade tolerant, but 
that as B. nevinii matures, it may require more sunlight (Mistretta and 
Brown 1989, Attachment: ``Report on the Population and Ecological Data 
of Mahonia nevinii'' by Joy Nishida, p. 1). A similar shade/sunlight 
requirement has been noted for several other resprouting chaparral 
shrub species, where seedlings and saplings are found mostly in the 
shade of other plants and seldom in the open, but recruitment into the 
shrub population appears to require the later development of a canopy 
gap, such as may be created by a fire event (Keeley 1992, p. 1206).
    We have little information about pollinators, seed dispersal 
mechanisms, or the reproductive biology of this species. Berberis 
nevinii has perfect (hermaphroditic) yellow flowers clustered in loose 
racemes that bloom from March through April, and fleshy, yellowish-red 
to red berries with plump, brown seeds that are present from May to 
July (Wolf 1940, unpaginated; Munz 1974, p. 245; Neihaus 1977, p. 1; 
Morris 2006). Species-specific information on pollinators is lacking, 
but B. nevinii may

[[Page 5560]]

be pollinated by bee species. According to Mussen (2002), California's 
native Berberis species are ``visited (and probably pollinated) by 
honey bees'' (Apis mellifera), and according to the U.S. Department of 
Agriculture (2006), native Berberis species ``provide significant 
forage for native bees.'' We also do not know if B. nevinii is able to 
self-fertilize, as the genus Berberis contains species that are both 
self-compatible and self-incompatible (Anderson et al. 2001, p. 227). 
Seed dispersal by both birds and mammals is widespread within the genus 
Berberis (Young and Young 1992, p. 52; Vines 1960, pp. 271-273), and 
thus is likely within B. nevinii. Wolf (1940, unpaginated) noted that 
the abundant fruits of B. nevinii are eaten by various bird species. 
Seasonal rains flowing through washes and channel drainages may also 
disperse seed of B. nevinii located in these areas (Roof 1968, p. 22; 
Mistretta and Brown 1989, p. 6; Soza and Boyd 2000, p. 3). However, due 
to the lack of specific information on habitat requirements for B. 
nevinii related to pollination and seed dispersal, we were unable to 
fully incorporate these potential areas into our identification of 
essential habitat for the species.
    Berberis nevinii does not appear to reproduce by vegetative means 
(rootsprout) to any great extent (Mistretta and Brown 1989, p. 5; Boyd 
2006); in other words, it does not regularly produce clones 
(genetically identical direct descendants) that are well separated from 
the parent individual through the process of rooting at nodes in the 
rhizome, as is the case with some other members of the genus Berberis. 
One potential exception is an (extirpated) occurrence south of Redlands 
in San Bernardino County, which appeared to be reproducing only by 
vegetative spread (Sanders 2006). Because vegetative reproduction 
appears to be uncommon, Mistretta and Brown (1989, p. 5) concluded that 
perpetuation of the species is likely dependent on its occasional 
production of viable seed.

Landscape Ecology and Population Demographics of Berberis nevinii

    Many extant occurrences of Berberis nevinii are associated with 
chaparral or coastal sage scrub. Fire is a natural occurrence in 
southern California shrublands, and plants occurring in these 
vegetation communities are resilient and/or adapted to these types of 
disturbances (Keeley 1991, p. 84; Tyler 1996, p. 2182). Postfire 
regeneration mechanisms among California shrubland species can 
generally be described as obligate seeding, obligate sprouting, or 
facultative sprouting (Kelly and Parker 1990, p. 114). Obligate seeders 
are typically killed by fire and rely entirely on seeds for 
regeneration. Most have locally dispersed seeds that persist in the 
soil seed bank until dormancy is broken by an environmental stimulus, 
such as intense heat (Keeley 1991, p. 82). Obligate sprouters, on the 
other hand, are rarely killed by fire, but rather resprout from roots, 
lignotubers, or epicormic buds (Kelly and Parker 1990, p. 114). These 
species have seeds that do not require fire for germination, but 
require fire-free periods for recruiting new seedlings (Keeley 1991, p. 
82). In some species, postfire regeneration occurs by both sprouts and 
seeds, and fire-caused mortality is variable (facultative sprouters) 
(Kelly and Parker 1990, p. 114).
    Berberis nevinii is known to regenerate by stump sprouting 
following fire (Soza and Fraga 2003, p. 2; Sanders 2006; Mistretta and 
Brown 1989, p. 5). Mature individuals often possess a basal burl 
(Mistretta and Brown 1989, p. 5), a swelling at the junction of roots 
and stems that allows a plant to sprout from the base and regenerate 
after a fire that kills above-ground vegetation. The germination 
response of B. nevinii to fire is not known. According to Soza and Boyd 
(2003, p. 2), Soza (2006), and the USFS (2005, p. 237), post-fire 
surveys on the Angeles and Cleve