Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Berberis nevinii (Nevin's barberry), 8412-8440 [08-523]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

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



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

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

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

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


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

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

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

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

SUPPLEMENTARY INFORMATION:

Background

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

Species Description and Reproduction

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

Species Distribution

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

[[Page 8413]]

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

Previous Federal Actions

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

Summary of Comments and Recommendations

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

Peer Review

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

Peer Reviewer Comments

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

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

Public Comments

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

[[Page 8415]]

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

[[Page 8416]]

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

[[Page 8417]]

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

[[Page 8418]]

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

Summary of Changes from Proposed Rule

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

Critical Habitat

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

[[Page 8419]]

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

Primary Constituent Elements (PCEs)

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

Space for Growth and Reproduction

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

[[Page 8420]]

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

Additional soil series found within mapped B. nevinii occurrences 
include gullied land and riverwash primarily south of Vail Lake, and 
badlands to the north and southeast of Vail Lake. Occurrences north of 
Vail Lake on the south slopes of Big Oak Mountain and its summit are 
mapped primarily as Auld clay, 8 to 15 percent slopes; Cajalco rocky 
fine sandy loam, 15 to 50 percent slopes, eroded; and Las Posas loam 
and rocky loam, 8 to 15 percent slopes, eroded. Based on the revised 
location inform