Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Acanthomintha ilicifolia, 50454-50496 [E8-19194]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 73, Number 166 (Tuesday, August 26, 2008)]
[Rules and Regulations]
[Pages 50454-50496]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-19194]



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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 Acanthomintha ilicifolia (San Diego thornmint); Final Rule

Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2007-0007; 92210-1117-0000-B4]
RIN 1018-AU86


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Acanthomintha ilicifolia (San Diego thornmint)

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 Acanthomintha ilicifolia (San Diego 
thornmint) under the Endangered Species Act of 1973, as amended (Act). 
In total, approximately 671 acres (ac) (272 hectares (ha)) of land in 
San Diego County, California, fall within the boundaries of the 
critical habitat designation.

DATES: This rule becomes effective on September 25, 2008.

ADDRESSES: The final rule, final economic analysis, and map of critical 
habitat are available on the Internet at https://www.regulations.gov. 
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 (see 
ADDRESSES); telephone 760-431-9440; facsimile 760-431-5901. 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 designation of critical habitat for Acanthomintha ilicifolia in 
this final rule. For more information on the taxonomy, biology, and 
ecology of A. ilicifolia, refer to the final listing rule published in 
the Federal Register on October 13, 1998 (63 FR 54938), and the 
proposed critical habitat rule published in the Federal Register on 
March 14, 2007 (72 FR 11946). We did not receive any new information 
pertaining to the species description, life history, distribution, 
ecology, or habitat of A. ilicifolia following the publication of the 
proposed designation of critical habitat for this species; therefore, 
please refer to the documents listed above for a complete detailed 
discussion of this species.
    Acanthomintha ilicifolia is an annual member of the mint family in 
the genus Acanthomintha. This plant ranges in height from 2 to 6 inches 
(in) (5 to 15 centimeters (cm)) and has white, two-lipped, tubular 
flowers with rose-colored markings on the lower lip (Jokerst 1993, p. 
713). Members of this genus have paired leaves and several sharp, spiny 
bracts (modified leaves) below whorled flowers. Acanthomintha 
ilicifolia can be distinguished from other members of the genus by its 
flower, which has hairless anthers and style.
    Acanthomintha ilicifolia usually occurs on heavy clay soils in open 
areas surrounded by shrubby vegetation. These openings are generally 
found within coastal sage scrub, chaparral, and native grassland of 
coastal San Diego County and south to San Telmo in northern Baja 
California, Mexico (Beauchamp 1986, p. 175; Reiser 2001, pp. 3-5). 
Acanthomintha ilicifolia is frequently associated with gabbro soils, 
which are derived from igneous rock, and gray calcareous clays derived 
from soft calcareous sandstone (Oberbauer and Vanderwier 1991, pp. 208-
209). This species is endemic to San Diego County, California, and 
northwestern Baja California, Mexico, and grows on open clay lenses 
described as friable, meaning that these soils have a loose, crumbly 
texture.

Previous Federal Actions

    On August 10, 2004, the Center for Biological Diversity and 
California Native Plant Society challenged our failure to designate 
critical habitat for this species as well as four other plant species 
(Center for Biological Diversity v. Norton, C-04-3240 JL (N. D. Cal.)). 
In a settlement agreement dated December 21, 2004, we agreed to submit 
for publication in the Federal Register a proposed designation of 
critical habitat, if prudent and determinable, on or before February 
28, 2007, and a final determination by February 28, 2008. We published 
a proposed critical habitat designation for Acanthomintha ilicifolia in 
the Federal Register on March 14, 2007 (72 FR 11946). As part of that 
2007 proposed designation, we determined that it was prudent to 
designate critical habitat for this species (72 FR 11946; March 14, 
2007). We accepted public comments on the proposed designation for 60 
days, ending May 14, 2007.
    On November 27, 2007, we published a notice announcing the 
availability of the draft economic analysis (DEA) and reopening the 
public comment period on the proposed rule (72 FR 66122). This comment 
period closed on December 27, 2007. In light of new information 
received, we requested an extension of the due date of the final 
critical habitat rule. On April 16, 2008, the extension request was 
granted allowing us to open an additional comment period. On May 13, 
2008, we opened a third comment period on the DEA and the proposed 
rule. This comment period closed on June 12, 2008 (73 FR 27483). Please 
refer to the ``Previous Federal Actions'' section of the proposed 
critical habitat rule for Acanthomintha ilicifolia, which published in 
the Federal Register on March 14, 2007 (72 FR 11946), for a discussion 
of additional Federal actions that occurred prior to the proposed 
designation of critical habitat for this species. This final rule 
complies with the December 21, 2004, settlement agreement and April 16, 
2008, extension.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for Acanthomintha ilicifolia in the 
proposed rule that published on March 14, 2007 (72 FR 11946), and in 
the notice of availability of the draft EA published in the Federal 
Register on November 27, 2007 (72 FR 66122). We received significant 
information during the second comment period; therefore, we opened a 
third comment period on the proposed rule and the draft EA. The third 
comment period opened on May 13, 2008, and closed June 12, 2008 (73 FR 
27483). We contacted appropriate Federal, State, and local agencies; 
scientific organizations; and other interested parties and invited them 
to comment on the proposed rule and the draft EA.
    During the comment period that opened on March 14, 2007, and closed 
on May 14, 2007, we received two comments directly addressing the 
proposed critical habitat designation. One comment was from a Federal 
agency and the other was from a non-governmental organization. During 
the second comment period open from November 27, 2007 to December 27, 
2007, we received four comment letters. Of these latter comments, one 
was from a Federal agency, one was from a local government, one was 
from a peer

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reviewer, and one was from an organization. We did not receive any 
additional comments during the third comment period. All comments 
received were grouped into general issue categories relating to the 
proposed designation of critical habitat for Acanthomintha ilicifolia, 
and are addressed in the following summary and incorporated into this 
final rule as appropriate. We did not receive requests for a public 
hearing or comments on the draft EA.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from five knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region where the species occurs, and 
conservation biology principles. We received a response from one peer 
reviewer. The peer reviewer agreed with our characterization of the 
known physical and biological features for Acanthomintha ilicifolia.
    We reviewed all comments we received from the peer reviewer and the 
public for substantive issues and new information regarding critical 
habitat for Acanthomintha ilicifolia. The comments are addressed in the 
following summary.

Peer Reviewer Comments

    Comment 1: The peer reviewer concurred with our characterization of 
the known physical and biological features that are essential to the 
conservation of this species based on extensive research on 
Acanthomintha ilicifolia. Additionally, the peer reviewer highlighted 
several areas of interest that have not been studied at this time, but 
may provide more information on the physical and biological features 
essential for the survival of A. ilicifolia. The topics that the peer 
reviewer indicated require further research include population 
genetics, pollinator studies, and additional soil studies. The peer 
reviewer stated that additional population genetics studies of A. 
ilicifolia could show that some populations display greater genetic 
diversity, or that some genetic characters are contained in only one or 
two populations. Additionally, the peer reviewer indicated that studies 
are needed to determine habitat requirements for pollinators and to 
understand the effect that habitat fragmentation may have on A. 
ilicifolia.
    Our Response: We agree with the peer reviewer's assessment of 
information needs for Acanthomintha ilicifolia. We used the best 
available scientific and commercial data to designate critical habitat 
for this species. The peer reviewer's comments support the designation, 
and the peer reviewer did not identify any significant data that we did 
not consider. We look forward to working with stakeholders, 
researchers, and other organizations to study the important issues 
identified by the peer reviewer. The California Department of Fish and 
Game is funding a study on the pollinators of A. ilicifolia. This and 
other future projects will help us to better understand the 
conservation needs of this species.
    Comment 2: The peer reviewer applauded and reiterated the 
importance of our inclusion of newly discovered populations of 
Acanthomintha ilicifolia in the proposed critical habitat. The peer 
reviewer also commented that our criterion for population stability is 
reasonable and further tracking of population dynamics may help refine 
this criterion. The peer reviewer supported our inclusion of up to 500 
ft (152 m) of habitat adjacent to mapped occurrences where the habitat 
is contiguous with occupied habitat and supports the physical and 
biological features essential to the conservation of this species. The 
peer reviewer indicated these areas capture unmapped clay soil patches, 
minimize the effects of fragmentation, and help alleviate our lack of 
specific knowledge regarding pollinators for this species by minimizing 
the encroachment of irrigated areas that support nonnative insect fauna 
(which may compete with native insect pollinators or affect the 
hydrology that supports A. ilicifolia).
    Our Response: We appreciate the peer reviewer's positive evaluation 
of our criteria used to identify critical habitat.
    Comment 3: The peer reviewer commented that we should not exclude 
the area within the pending Encinitas subarea plan under the Multiple 
Habitat Conservation Plan (MHCP) as proposed. The peer reviewer 
indicated this plan has not progressed towards completion at a timely 
rate and that until a conservation plan has been developed, we should 
designate the area as critical habitat.
    Our Response: Following the publication of the proposed rule, we 
reevaluated the City of Encinitas' pending habitat conservation plan 
(HCP) subarea plan under the MHCP in San Diego County, California. We 
concluded that, at this time, the City of Encinitas' subarea plan is 
not complete and progress on the completion has slowed. However, the 
majority of subunit 1C is part of the Manchester Avenue Mitigation Bank 
and is actively managed for Acanthomintha ilicifolia (Spiegelberg 2005, 
p. 1-33). Preservation and management of the Manchester Avenue 
Mitigation Bank is independent of the completion of the City of 
Encinitas' subarea plan. We determined that the benefits of excluding 
the lands within the Manchester Avenue Mitigation Bank outweigh the 
benefits of including these lands in a critical habitat designation and 
that their exclusion will not result in extinction of this species. 
Therefore, we excluded 70 ac (28 ha) of subunit 1C under section 
4(b)(2) of the Act (see ``Exclusions Under Section 4(b)(2) of the Act'' 
section of this final rule for a detailed discussion of this 
exclusion), and we designated the remaining 9 ac (4 ha) of private 
lands outside the Manchester Avenue Mitigation Bank as critical 
habitat.

Public Comments

    Comment 4: One commenter stated that at a minimum, all occupied 
habitat needs to be designated as critical habitat. The commenter 
stated the definitions of ``recovery'' and ``conservation'' are 
synonymous, and therefore, any critical habitat designation must 
include all areas the Service finds essential to the conservation 
(i.e., recovery) of the species. This commenter reiterated that 
Acanthomintha ilicifolia is widely scattered in a discontinuous 
distribution, and stated that this type of distribution can lead to a 
high level of within-species genetic diversity. The commenter stated 
that it is essential to conserve within-species diversity represented 
by occurrences on varying soil types as well as geographically distinct 
populations. The commenter stated that within-species diversity helps 
species preserve their ability to respond to diseases, climate change, 
pollution, and other current and future threats. The commenter 
concluded that in the face of uncertainty, designation of all occupied 
habitat, regardless of ownership, is legally necessary to conserve this 
species.
    Our Response: We agree with the commenter that the term 
conservation is defined in the Act as using all methods and procedures 
necessary to bring any listed species to the point at which the 
measures provided under the Act are no longer necessary (i.e., 
recovery). The provisions within section 4 of the Act require the 
Secretary to determine whether a species is endangered or threatened 
based on threats to the species, and therefore, recovery is linked to 
the alleviation of threats to the species.

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    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 capture all areas essential to the conservation 
of Acanthomintha ilicifolia as required by the Act. The areas 
delineated as critical habitat in this final rule: (1) Support 
populations that occur on rare or unique habitat within the species' 
range; (2) support the largest known populations of A. ilicifolia; and 
(3) support the most stable populations of A. ilicifolia. Further, this 
final designation identifies threats to the physical and biological 
features essential to the conservation of the species within each 
subunit and identifies special management considerations or protection 
needed to alleviate those threats and thereby will contribute to the 
recovery of A. ilicifolia. Although there is no recovery plan for this 
species, we believe that recovery for A. ilicifolia can be achieved 
through the implementation of conservation measures to protect the 
physical and biological features on the areas occupied by this species 
that meet the definition of critical habitat (see the ``Special 
Management Considerations or Protection'' section for details about the 
type of management needed for this species).
    The commenter stated that we need to include all occupied habitat 
in order to conserve the species' geographic and genetic diversity. 
Species and plant communities that are protected across their ranges 
are expected to have lower likelihoods of extinction (Soule and 
Simberloff 1986; Scott et al. 2001, pp. 1297-1300); our criteria 
identified multiple locations across the entire range of the species as 
essential habitat to prevent range collapse. Genetic variation in 
plants can result from the effects of population isolation and 
adaptation to locally distinct environments (Lesica and Allendorf 1995, 
pp. 754-757; Fraser 2000, pp. 49-51; Hamrick and Godt 1996, pp. 291-
295); and our criteria identified populations that occur on rare or 
unique habitat within the species' range in order to capture the range 
of plant communities, soil types, and environmental gradients in which 
Acanthomintha ilicifolia is found to preserve the genetic variation 
that may result from adaptation to local environmental conditions, as 
documented in other plant species (e.g., see Hamrick and Godt 1996, pp. 
299-301; Millar and Libby 1991, pp. 150, 152-155). Locations that 
possess unique ecological characteristics are those that represent the 
full range of environmental variability where A. ilicifolia have 
evolved, and, therefore, are likely to promote the adaptation of this 
species to different environmental conditions. We believe we captured 
the within-species diversity that the commenter is referring to by 
including areas that support populations on rare or unique habitat 
types, the largest known populations of A. ilicifolia, and the most 
stable populations of A. ilicifolia. At this time, no one has 
investigated the genetic structure of this species; however, if such 
genetic studies are conducted for this species in the future, we may 
revise this critical habitat designation if we determine that this 
final designation does not adequately represent the species' range of 
genetic diversity.
    Our designation relies on the best available scientific information 
to capture the geographic range of the species. The commenter did not 
specifically identify any geographically distinct populations that we 
did not capture in our designation. Our criteria do not capture 
populations where we had information indicating that the habitat had 
been lost to development and, therefore, the populations were likely 
extirpated. Furthermore, our criteria limited the designation to areas 
where we had data indicating the location of a known population and 
demographic or specific habitat data to assess its importance to the 
overall conservation of this species. As described above, our 
designation includes areas that support populations of Acanthomintha 
ilicifolia on rare or unique habitat types, the largest known 
populations of A. ilicifolia, and the most stable populations of A. 
ilicifolia, thereby capturing species' diversity. We determined that 
designating these areas, each of which was occupied at the time of 
listing and contains the physical and biological features essential to 
the conservation of A. ilicifolia fulfills the plant's biological needs 
and is adequate to conserve this species (for a more detailed 
discussion see the ``Criteria Used To Identify Critical Habitat'' 
section). We concluded that there are no areas outside the geographical 
area occupied by the species at the time of listing essential to the 
conservation of the species and, therefore, consistent with section 
3(5)(c) of the Act, we did not include the entire geographical area 
currently occupied by this species.
    We recognize that our designation does not encompass all known 
occurrences of this species; however, we believe that our criteria and 
the designation are adequate to provide for the conservation and 
recovery of this species throughout its extant range. Although there is 
no recovery plan for this species, we believe that recovery for A. 
ilicifolia can be achieved through the implementation of conservation 
measures to protect the physical and biological features in the areas 
occupied by this species that meet the definition of critical habitat 
(see the ``Special Management Considerations or Protection'' section 
for details about the type of management needed for this species).
    The commenter expressed concern that the proposed designation may 
not capture all areas necessary to allow Acanthomintha ilicifolia to 
respond to diseases, climate change, pollution, and other current and 
future threats. As stated above, the designation identifies all known 
threats to the physical and biological features essential to the 
conservation of the species in each individual subunit and identifies 
special management considerations or protection needed to alleviate 
those threats. We recognize these threats may change in the future; 
however, we base our critical habitat designations on the information 
available at the time of the designation and do not speculate as to 
what areas may be found essential if better information became 
available or what areas may become essential over time. The commenter 
did not include any specific data on future threats to the features 
essential to this species nor are we aware of any studies that include 
additional information that we did not consider. Should additional data 
become available concerning future threats, we may revise this critical 
habitat designation if it is determined that the designation did not 
capture an area essential to the conservation of the species based on 
the identification of additional threats.
    Comment 5: One commenter stated that the Act specifically allows 
critical habitat designations to include areas both within and outside 
the geographical area occupied by the species at the time it is listed 
as well as currently unoccupied habitat in order to capture all areas 
essential to the recovery of listed species. The commenter continued to 
state that the proposed designation of critical habitat

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for Acanthomintha ilicifolia fails to meet the government's legal 
requirements to promote recovery of A. ilicifolia.
    Our Response: We agree with the commenter that the Act does provide 
the flexibility to include areas within the designation that were not 
occupied at the time a species was listed (including currently 
unoccupied habitat) if those areas are determined to be essential to 
the conservation of the species. We evaluated all known occurrences of 
Acanthomintha ilicifolia for inclusion in our proposed critical habitat 
designation and identified two subunits in the proposed rule, 3E and 
4D, for inclusion in the designation that were not known to be occupied 
at the time the species was listed. We now consider subunits 3E and 4D 
to be occupied at the time of listing. Even though these occurrences 
were not discovered until after the species was listed in 1998, over 
1,000 plants were recorded at each of these sites when they were first 
discovered. We believe the large population size indicates that the 
occurrences were established for several years because the seeds of A. 
ilicifolia do not disperse in large numbers and any new population of 
A. ilicifolia would likely start out small and take several years to 
reach a population size greater than 1,000 plants. In our proposed 
rule, we did not identify any areas outside the geographical area 
occupied by A. ilicifolia as essential for the conservation of this 
species. As discussed in response to comment 4, we believe our proposed 
rule and this final designation of critical habitat meet the 
requirements of the Act and are consistent with 50 CFR 424.12(e). We 
are not designating any areas outside the geographical area occupied by 
this species as we believe this designation is adequate to ensure the 
conservation of the species.
    We recognize the designation of critical habitat may not include 
all habitat areas that may eventually be determined to be necessary for 
the species' recovery. Critical habitat designations do not signal that 
habitat outside the designation is unimportant or may not be required 
for recovery. Areas outside the critical habitat designation will 
continue to be subject to conservation actions implemented under 
section 7(a)(1) of the Act and regulatory protections afforded by the 
section 7(a)(2) jeopardy standard and the prohibitions of section 9 of 
the Act. Critical habitat designations based on the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.
    Comment 6: One commenter stated that the proposed exclusions, which 
if finalized will exclude over 67 percent of occupied habitat, violate 
the principles of the Act, and are not legal because excluding areas 
from a critical habitat designation will not promote the recovery of 
this species as is required by the Act. The commenter noted that, 
because all the units identified in the proposed rule are described as 
requiring special management considerations to conserve the primary 
constituent elements, that all units must be designated.
    Our Response: Section 4(a)(3)(A) of the Act generally mandates that 
the Secretary designate any habitat which is considered to be critical 
habitat, as defined in section 3(5)(A), concurrently with listing and 
provides that such designations may be revised thereafter as 
appropriate. Section 4(b)(2) of the Act further requires that in making 
critical habitat designations, the Secretary take into account the 
economic impact, the impact on national security, and any other 
relevant impact of specifying any particular area as critical habitat. 
The Secretary may exclude any area from critical habitat if he 
determines that the benefits of exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless he 
determines that the failure to designate such area as critical habitat 
will result in the extinction of the species concerned. Therefore, 
consistent with the Act, we must consider the relevant impacts of 
designation on those areas that are determined to meet the definition 
of critical habitat using the best scientific data available prior to 
finalizing a critical habitat designation.
    After determining all areas that meet the definition of critical 
habitat under section 3(5)(A) of the Act, we considered the economic 
impact, the impact on national security, and other relevant impacts of 
specifying any particular area as critical habitat. In this final 
designation, we recognize that designating critical habitat in areas 
where we have partnerships with landowners that have led to 
conservation and management of Acanthomintha ilicifolia on non-Federal 
lands has a relevant perceived impact to those landowners and a 
relevant impact to future partnership and conservation efforts on non-
Federal lands. Based on these relevant impacts, we evaluated the 
benefits of designating those particular areas as critical habitat 
against the benefits of excluding the areas from the designation, and 
we determined that the benefits of excluding a portion of subunits 1A 
and 1C and all of subunits 1B, 2A, 2B, 2C, 2D, 3A, 3B, 4A, 4B, 4C, and 
4D outweigh the benefits of including these areas in the final critical 
habitat designation and that the exclusion of these areas will not 
result in extinction of this species. Therefore, these exclusions are 
in full compliance with the Act. We also concluded that the 
conservation and management that will occur on the non-Federal lands we 
are excluding will contribute to the recovery of this species even 
though the Act does not require that areas excluded from a critical 
habitat designation contribute to recovery of a species, but rather 
that the benefits analysis demonstrate that the benefits of exclusion 
outweigh the benefits of inclusion and that the exclusion will not 
result in the extinction of the species. For a complete analysis and 
discussion of the exclusions, please refer to the ``Exclusions Under 
Section 4(b)(2) of the Act'' section below.
    Comment 7: One commenter specifically questioned the ability of the 
San Diego Multiple Habitat Conservation Program (MHCP) and the San 
Diego Multiple Species Conservation Program (MSCP) to prevent 
extinction of this species, therefore questioning our determination 
that excluding these areas would not lead to the extinction of 
Acanthomintha ilicifolia. The commenter stated that habitat 
conservation plans (HCPs), like the MHCP and MSCP, are often 
ineffective conservation vehicles. The commenter listed three studies 
and stated that the studies conclude that species covered by multiple-
species HCPs may be less likely to be recovered than those outside such 
HCPs. The commenter goes on to state that the MHCP and MSCP are in 
relatively early stages of implementation and are untested. The 
commenter states there are substantial questions as to whether these 
HCPs will provide sufficient habitat or species conservation for A. 
ilicifolia. The commenter stated that designating critical habitat in 
areas covered by the MHCP and MSCP would not undermine those HCPs and 
that the additional protection that a critical habitat designation 
provides would be especially beneficial if project proponents in those 
areas elect not to follow the guidelines set forth in the HCPs, 
suggesting that designating critical habitat would provide a useful and 
needed ``safety net.'' The commenter requested that we reconsider

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our proposed exclusion of non-Federal lands covered by the MHCP and 
MSCP.
    Our Response: We reevaluated our proposed exclusions of non-Federal 
land covered by the MHCP and MSCP. Although the commenter grouped the 
two HCPs together, we evaluated the proposed exclusion of each HCP 
separately in relation to the comments.
    We reevaluated our proposed exclusion of non-Federal land covered 
by the MHCP under the approved Carlsbad Habitat Management Plan (HMP) 
and the draft Encinitas subarea plan. The MHCP is a framework plan that 
has been in place for 5 years and is structured to be implemented 
through the approval of individual, constituent subarea plans.
    The City of Carlsbad received an incidental take permit based on 
the Carlsbad HMP, an individual subarea plan under the MHCP framework 
plan on November 9, 2004. All 59 ac (24 ha) of land that meet the 
definition of critical habitat within the boundaries of the Carlsbad 
HMP are already conserved under the Carlsbad HMP. In addition to the 
two areas that we proposed as critical habitat in the Carlsbad HMP, 
there are other populations of A. ilicifolia that are conserved under 
the subarea plan. Not all areas placed in conservation are actively 
managed under the plan at this time; however, we believe the Carlsbad 
HMP conserves A. ilicifolia within its boundaries. According to the 
Service's biological opinion for the Carlsbad HMP, coverage of 
Acanthomintha ilicifolia under this plan is contingent upon compliance 
with the conservation measures outlined in the HMP (i.e., a funded 
management plan in place) and the completion of the San Marcos subarea 
plan under the MHCP. However, we did not identify any lands in San 
Marcos that meet the definition of critical habitat as described in the 
``Criteria Used to Identify Critical Habitat'' section. As a result, we 
analyzed the exclusion of subunits 1A and 1B in more detail and 
concluded that exclusion is appropriate because the essential habitat 
under the Carlsbad HMP is conserved. Management plans were developed 
and are being implemented for conserved lands in both of these 
subunits, although some management differs between these two areas 
because these management plans were developed over different periods of 
time (i.e., the management plan for subunit 1A was developed after the 
Carlsbad HMP was completed, whereas the management plan for lands 
within subunit 1B was developed prior to development of the Carlsbad 
HMP). Regardless, conservation and management of A. ilicifolia in these 
subunits is occurring and we believe it is contributing to the 
conservation of the species.Overall, the extent of habitat preservation 
and management that has taken place through implementation of the 
Carlsbad HMP since it was permitted in 2004 is significant, and 
demonstrates the City of Carlsbad's commitment to fully implement this 
HCP.
    A detailed accounting of preservation, conservation, and management 
requirements of the Carlsbad HMP can be found in the ``Exclusions Under 
Section 4(b)(2) of the Act'' section. The comprehensive framework of 
the subarea plan and area-specific management plans developed as areas 
are preserved under the subarea plan contain requirements to conserve 
and adaptively manage Acanthomintha ilicifolia habitats and provide for 
the conservation of this species' primary constituent elements (PCEs), 
thereby contributing to the recovery of this species. The Carlsbad HMP 
provides for management and monitoring for A. ilicifolia at several 
sites, including habitat in subunit 1A that is currently actively 
managed by the Center for Natural Lands Management. Activities that 
benefit A. ilicifolia in subunit 1A include mapping and census 
projects, removal of nonnative invasive species, and the restoration of 
areas degraded by past human use (Tierra Data, Inc. 2005, p. 34-63; 
Carlsbad HMP 2004, p. D-97). Land in subunit 1B was permanently 
preserved prior to the creation of the HMP. Management of the conserved 
land in subunit 1B is the responsibility of the homeowners' 
associations who own the open space in this subunit. These lands are 
signed and fenced and considered part of Carlsbad's habitat preserve.
    The Encinitas subarea plan under the MHCP is not complete, and 
significant progress has not occurred towards its completion. 
Therefore, we are not excluding from the final designation essential 
habitat within the draft Encinitas subarea plan.
    We also reevaluated our proposed exclusion of non-Federal land 
covered by approved subarea plans under the MSCP. The MSCP is a 
framework plan that has been in place for 10 years. Both the City and 
the County of San Diego received incidental take permits for their 
individual subarea plans under the MSCP framework plan. Approximately 
948 ac (383 ha) of land that meet the definition of critical habitat 
are within the City and County subarea plan boundaries under the MSCP. 
The MSCP subarea plans provide for the conservation of Acanthomintha 
ilicifolia through the establishment of preserve lands within the 
Multi-Habitat Planning Area (MHPA) (City) and Pre-Approved Mitigation 
Areas (PAMA) (County). In 10 years of implementing the subarea plans, 
approximately 787 ac (319 ha), or 83 percent, of lands that meet the 
definition of critical habitat are conserved. Although some areas 
placed in conservation are not yet fully managed under the plans, we 
believe the subarea plans under the MSCP will conserve essential 
habitat of A. ilicifolia within the subarea plan boundaries. The extent 
of habitat preservation and management that has taken place through 
implementation of the MSCP subarea plans is significant, and 
demonstrates the City's and County's commitments to fully implement 
their subarea plans.
    The commenter indicated concern that species may more likely 
recover outside of HCPs and questioned the habitat and species 
conservation provided by the MSCP for Acanthomintha ilicifolia. The 
subarea plans under the MSCP contain requirements to monitor and 
adaptively manage A. ilicifolia habitats and provide for the 
conservation of this species' PCE. The framework and area-specific 
management plans required under the subarea plans are comprehensive and 
address a broad range of management needs at the preserve and species 
levels that are intended to reduce the threats to covered species and 
thereby contribute to the recovery of the species. These plans include 
the following: (1) Fire management; (2) public access control; (3) 
fencing and gates; (4) ranger patrol; (5) trail maintenance; (6) 
visitor/interpretive and volunteer services; (7) hydrological 
management; (8) signage and lighting; (9) trash and litter removal; 
(10) access road maintenance; (11) enforcement of property and/or 
homeowner requirements; (12) removal of invasive species; (13) 
nonnative predator control; (14) species monitoring; (15) habitat 
restoration; (16) management for diverse age classes of covered 
species; (17) use of herbicides and rodenticides; (18) biological 
surveys; (19) research; and (20) species management conditions (MSCP 
1998).
    Eight major populations of Acanthomintha ilicifolia are included 
within preserve lands under the approved MSCP subarea plans, each of 
which will be conserved from 80 to 100 percent, with 85 percent overall 
coverage. A detailed accounting of preservation, conservation, and 
management requirements can be found in the ``Exclusions Under Section 
4(b)(2) of the Act'' section. In sum, all but 89 ac (36 ha) of the 
total 948 ac (383 ha)

[[Page 50459]]

of lands that meet the definition of critical habitat within the MSCP 
plan area are conserved or otherwise assured of conservation. 
Consistent with the narrow endemics requirements of the MSCP, the 
remaining 89 ac (36 ha) will be surveyed for A. ilicifolia prior to any 
development occurring on these lands. Under the City of San Diego's 
subarea plan, impacts to narrow endemic plants, including A. 
ilicifolia, inside the MHPA will be avoided and outside the MHPA will 
be protected by: (1) Avoidance; (2) management; (3) enhancement; and/or 
(4) transplantation to areas identified for preservation (City of San 
Diego 1997, p. 105-106; Service 1997, p. 15). Under the County of San 
Diego's subarea plan, narrow endemic plants, including A. ilicifolia, 
will be conserved under the Biological Mitigation Ordinance using a 
process that: (1) Requires avoidance to the maximum extent feasible; 
(2) allows for a maximum 20 percent encroachment into a population if 
total avoidance is not feasible; and (3) requires mitigation at the 1:1 
to 3:1 (in kind) for impacts if avoidance and minimization of impacts 
would result in no reasonable use of the property (County of San Diego 
(BMO) 1997, p. 11; Service 1998, p. 12). These measures will ameliorate 
any habitat loss within the 89 ac (36 ha) of lands that are not 
currently preserved or otherwise assured of conservation under the 
MSCP, by requiring in situ conservation or mitigation of impacts to A. 
ilicifolia and its habitat. Although some losses may occur to this 
species, the preservation, conservation, and management of A. 
ilicifolia required under the City and County MSCP subarea plans 
ensures the long-term conservation of this species and its habitat 
within the plan areas.
    We evaluated the relevant impacts of designating critical habitat 
within areas covered by the City and County MSCP subarea plans and 
determined that the benefits of excluding non-Federal lands covered by 
the MSCP outweigh the benefits of specifying those areas as critical 
habitat and determined that excluding these lands will not lead to the 
extinction of Acanthomintha ilicifolia. Therefore, we excluded all non-
Federal lands covered by the City and County subarea plans under the 
MSCP from this final designation (please see ``Exclusions Under Section 
4(b)(2) of the Act'' section below for a detailed analysis).
    The commenter also expressed concern that HCPs are ineffective 
conservation vehicles. We respectfully disagree. Numerous processes are 
incorporated into HCPs that provide for Service oversight of 
implementation to ensure compliance with the provisions to protect 
Acanthomintha ilicifolia. For example, the MSCP imposes annual 
reporting requirements and provides for Service review and approval of 
proposed subarea plan amendments and preserve boundary adjustments and 
for Service review and comment on projects during the California 
Environmental Quality Act review process. The Service also chairs the 
MSCP Habitat Management Technical Committee and the Monitoring 
Subcommittee (MSCP 1998, p. 5-11--5-23). The Carlsbad HMP also 
incorporates many processes to ensure the Service an active role in 
implementation of the HCP. For example, Habitat Management Plans, 
reviewed and approved by the Service, must be developed for each 
preserve area within the Carlsbad HMP, and monitoring and management 
objectives must be established for each preserve. Progress towards 
meeting these objectives is measured through the submission of annual 
reports. There are also regular coordination meetings between the 
Service and the City of Carlsbad to discuss on-going conservation 
issues. Both the MSCP subarea plans and the Carlsbad HMP must account 
annually for the progress they are making in assembling conservation 
areas. The Service must receive annual reports that include, both by 
project and cumulatively, the habitat acreage destroyed and conserved 
within the HCPs. This accounting process ensures that habitat 
conservation proceeds in rough proportion to habitat loss and in 
compliance with the MSCP subarea plans and, the Carlsbad HMP, and the 
plans' associated implementing agreements.
    The commenter did not provide copies of the citations that they 
stated conclude that multi-species HCPs are not likely to contribute to 
the recovery of listed species, nor did the commenter identify any 
examples of projects that may not comply with the Carlsbad HMP or the 
City and County MSCP subarea plans by impacting Acanthomintha 
ilicifolia. In light of our summary above, we continue to believe that 
implementation of the Carlsbad HMP and the City and County MSCP subarea 
plans will benefit A. ilicifolia recovery, and we believe there is 
adequate oversight of these plans to ensure compliance.
    Comment 8: One commenter supported our exclusion of lands covered 
by the MSCP and requested that we exclude proposed critical habitat 
areas within the pending North County MHCP in San Diego County. The 
commenter stated that the designation of critical habitat in these 
areas may have a negative effect on entities pursuing the MHCP and 
deter the completion of the plan.
    Our Response: At this time, the HCP for northern San Diego County 
(North County MHCP) is being developed and a draft plan is not 
available for public review. We understand the commenters' concern that 
a designation of critical habitat in areas that may be addressed in the 
future by the North County MHCP may have a negative effect on entities 
pursuing the HCP and deter its completion. This concern is consistent 
with our discussion of conservation partnerships in the ``Exclusions 
Under Section 4(b)(2) of the Act'' section of this final rule. However, 
we also recognize that there is a regulatory and recovery benefit to 
designating critical habitat in areas that are not protected through 
existing management or conservation plans. Exclusions under section 
4(b)(2) of the Act must be considered on a case-by-case basis. Because 
a draft of the northern San Diego County MHCP has not been released for 
public comment or formally evaluated by the Service, it is not clear 
that this framework plan will adequately address the conservation and 
recovery needs of Acanthomintha ilicifolia. Nor is it clear which areas 
will actively develop subarea plans under the North County MHCP. 
Therefore, we cannot presently determine that the regulatory and 
recovery benefits of a critical habitat designation in these areas 
would be minimized by the measures provided under this future plan. 
Therefore, we did not exclude lands that may be covered under this plan 
from critical habitat (the portion of subunit 1A owned by the County of 
San Diego). However, if this designation is revised in the future, we 
will re-evaluate for potential exclusion areas conserved under the 
plan. In the meantime, we are committed to continue working with all 
partners to the North County MHCP to minimize any additional regulatory 
burden attributable to this critical habitat designation.
    Comment 9: One commenter questioned discussion in the proposed rule 
concerning critical habitat designations and public perceptions, 
stating that we did not present any empirical or quantitative evidence 
to support our claim that landowners fear a decline in property value 
due to real or perceived restrictions on land-use options and that 
participants in pending HCPs or other conservation plans may abandon 
the planning process in part due to perceived additional regulatory 
compliance with a critical habitat designation. The commenter noted 
that the MSCP and MHCP and their

[[Page 50460]]

respective subarea plans were presumably approved only after a public 
education program that would have explained the consequences of having 
listed species on private property. The commenter further stated that 
if the MSCP and MHCP function as promised by the proposed rule, 
critical habitat designation should create few or no additional burdens 
for permittees and finally that the Service inappropriately considers 
an exclusion as an ``either-or'' situation with regard to HCP 
implementation. The commenter stated that critical habitat and habitat 
conservation plans can coexist.
    Our Response: The proposed designation cites several studies that 
have examined the issue of conservation of threatened and endangered 
species on private lands to support our discussion of the impacts to 
non-Federal landowners (Wilcove et al. 1996; Bean 2002; Conner and 
Mathews 2002; James 2002; Koch 2002; Brook et al. 2003). As discussed 
in detail in the ``Conservation Partnerships on Non-Federal Lands'' 
section below, at least 80 percent of endangered or threatened species 
occur either partially or solely on private lands (Crouse et al. 2002). 
Although many non-Federal landowners derive satisfaction from 
contributing to listed species recovery, many private landowners are 
wary of the possible consequences of attracting endangered species to 
their property. Mounting evidence suggests that some regulatory actions 
by the Federal Government, while well-intentioned and required by law, 
can (under certain circumstances) have unintended negative consequences 
for the conservation of species on private lands (Wilcove et al. 1996; 
Bean 2002; Conner and Mathews 2002; James 2002; Koch 2002; Brook et al. 
2003). Many landowners fear a decline in their property value due to 
real or perceived restrictions on land-use options where threatened or 
endangered species are found (Main et al. 1999; Brook et al. 2003). 
According to some researchers, the designation of critical habitat on 
private lands significantly reduces the likelihood that landowners will 
support and carry out conservation actions (Main et al. 1999; Bean 
2002; Brook et al. 2003). Such voluntary conservation actions may be 
particularly important for listed plant species that are not subject to 
the take prohibition under section 9 of the Act or the incidental take 
permitting requirements of section 10(a)(1)(B) of the Act. For this 
reason, we actively encourage participants developing HCPs under 
section 10 of the Act to include measures that address the conservation 
of listed plant species in their plans even though such measures are 
not required. Designating critical habitat for plant species on lands 
voluntarily protected in an HCP or other conservation management plan 
could undermine our efforts. Therefore, we believe the judicious use of 
excluding specific areas of non-federally owned lands from critical 
habitat designations can contribute to species recovery and provide a 
superior level of conservation than critical habitat alone.
    Furthermore, our proposed critical habitat designations often draw 
significant public comment on the real and perceived impacts of the 
designation to Federal and non-Federal landowners. We received 
significant comments on multiple rules concerning impacts to private 
and non-Federal lands covered by HCPs and other land management 
conservation plans, including comment on this rule stating that the 
designation of critical habitat in areas covered by HCPs may have a 
negative effect on entities pursuing an HCP and may deter the 
completion of pending subarea plans under either the MSCP or MHCP (see 
Comment 8). As discussed in response to Comment 7 above and in the 
``Conservation Partnerships on Non-Federal Lands'' section below, we 
continue to recognize that designating critical habitat in areas where 
we have partnerships with landowners that have led to conservation or 
management of listed species on non-Federal lands has a relevant 
perceived impact to landowners and a relevant impact to future 
partnership and conservation efforts on non-Federal lands.
    Finally, we agree with the commenter that implementing a signed and 
permitted HCP is not an ``either-or'' situation when determining 
whether to designate an area that meets the definition of critical 
habitat as critical habitat. Rather, as stated in section 4(b)(2) of 
the Act, the Secretary shall designate critical habitat, or make 
revisions thereto, on the basis of the best available data and after 
(emphasis added) taking into consideration the economic impact, the 
impact on national security, and any other relevant impact, of 
specifying any particular area as critical habitat. The Secretary may 
exclude an area from critical habitat if he determines that the 
benefits of such exclusion outweigh the benefits of specifying such 
area as part of the critical habitat. We agree with the commenter that 
designation of an area covered by an HCP should create few or no 
additional regulatory burdens for permittees, and our analyses of the 
benefits of including areas covered by an HCP demonstrates how the 
regulatory benefit of inclusion is small. And while we agree that 
critical habitat and habitat conservation plans can coexist, we 
recognize that the designation has a relevant real impact to future 
partnerships and conservation efforts on non-Federal lands and a 
perceived impact to those landowners already in partnership with us. We 
consider that impact in weighing the benefits of inclusion against the 
benefits of exclusion on a case-by-case basis to determine if exclusion 
of those lands is appropriate.
    Comment 10: One commenter objected to the discussion in the 
proposed rule concerning the inundation of lawsuits relative to 
critical habitat and suggested that litigation would be unnecessary or 
unsuccessful if the Service complied with the law. The commenter 
suggested that policymakers make choices that avoid compliance with the 
Act's critical habitat requirements and underfund species and habitat 
conservation programs, starving the Service of funds and staff. The 
commenter concluded that compliance with the law would be a more 
fiscally, biologically, and legally responsible choice.
    Our Response: We removed the discussion of litigation-driven 
workload from this final rule. We believe this final rule is 
scientifically sound and compliant with the Act and our implementing 
regulations.
    Comment 11: One commenter indicated that portions of subunit 1A are 
developed or used for agriculture and do not have the potential to 
support Acanthomintha ilicifolia. The commenter provided a map 
depicting the areas they believe do not support this species and 
requested that we remove these lands from critical habitat.
    Our Response: We reassessed the areas described by the commenter. 
We removed the lands in subunit 1A that do not contain the PCE, 
including active agricultural fields, navigational aids associated with 
McClellen-Palomar Airport, a dirt maintenance road, and development 
areas in the City of Carlsbad. We remapped the boundary of subunit 1A, 
and verified that the revised subunit contains the features essential 
to the conservation of species which may require special management 
considerations or protection. As a result of the changes described 
above, we removed 26 ac (11 ha) that do not support A. ilicifolia and 
do not contain the PCE, resulting in 62 ac (25 ha) designated as 
critical habitat within subunit 1A.
    Comment 12: One commenter provided information on the management of 
lands owned by the

[[Page 50461]]

Center for Natural Lands Management (CNLM). The commenter indicated 
that portions of subunits 1A and 1C are owned by the CNLM, and are 
managed and monitored for Acanthomintha ilicifolia on an annual basis. 
Funding for the perpetual management of these sites is obtained from a 
monetary endowment. The CNLM prepared a Property Analysis Record (PAR) 
to determine how much money is needed to manage and monitor A. 
ilicifolia on these lands. The commenter indicated that the CNLM 
reduces the threats to A. ilicifolia by managing weeds, erecting 
fences, closing trails, and distributing educational literature to the 
public. Additionally, the commenter indicated that high school students 
are involved with annual monitoring for this species and that an 
entomologist is working to determine potential pollinators for A. 
ilicifolia on lands in subunit 1C.
    Our Response: We appreciate the detailed information provided by 
the commenter, and we incorporated this information as appropriate into 
the final rule.

Comments From Other Federal Agencies

    Comment 13: The U.S. Forest Service (USFS) commented that laws, 
regulations, policies, and current Land Management Plan (LMP) direction 
currently in place provide protection at least equivalent to the 
protection that critical habitat designation would provide. The agency 
stated that the LMP in place at the Cleveland National Forest (CNF) 
incorporates management direction that provides sufficient protection 
and management for Acanthomintha ilicifolia and its habitat, and that 
the section 7 consultation on the LMP resulted in the Service coming to 
a similar conclusion, resulting in the issuance of a non-jeopardy 
biological opinion. Additionally, the Cleveland National Forest (CNF) 
has a Species Management Guide for A. ilicifolia that provides for 
exclusion of grazing, recreation, development, and soil disturbance 
(USFS 1991). The USFS commented that due to management and conservation 
standards, there should not be any reason to adversely modify the 
habitat's primary constituent elements for A. ilicifolia on the CNF. 
Furthermore, they commented that 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 designation would unnecessarily add to their analysis burden 
by requiring CNF to make a determination of effect regarding critical 
habitat when consulting under section 7 of the Act. The USFS 
acknowledged their responsibility to conserve and recover listed 
species and that they will continue to provide necessary management, 
regardless of critical habitat designation.
    Our Response: We determined that the lands identified on the CNF 
contain the physical and biological features essential to the 
conservation of Acanthomintha ilicifolia and meet the definition of 
critical habitat (see ``Criteria Used to Identify Critical Habitat'' 
section below). We acknowledge that the LMP for CNF will benefit A. 
ilicifolia and its habitat, and that the CNF has completed many of the 
actions outlined in the 1991 Management Guide (USFS 1991) to avoid and 
minimize impacts to A. ilicifolia. The LMP contains general provisions 
for conservation of this species and the Management Guide suggests 
specific management and conservation actions that should address known 
threats to this species on USFS lands. However, the LMP is a guidance 
document and does not require or assure funding for management actions 
outlined in the plan. Additionally, the LMP does not preclude projects 
from occurring outside of the framework of the plan that could 
negatively impact areas designated as critical habitat.
    The Secretary has the discretion to 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 specifying such area, unless he 
determines that the exclusion would result in the extinction of the 
species concerned. We considered the request from the USFS 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 already completed consultation 
under Section 7(a)(2) of the Act on the LMP.
    As part of our section 7 consultation with the USFS on the LMP, the 
USFS 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 
Acanthomintha ilicifolia. Since critical habitat has not been 
previously proposed or designated for this species, it is anticipated 
that consultation with the USFS regarding the LMP will be reinitiated. 
However, because the USFS has already consulted with us on potential 
impacts to the species related to 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 case.
    Based on the record before us, we elected not to exclude these 
lands and are designating lands identified on the CNF that meet the 
definition of critical habitat and are essential to the conservation of 
Acanthomintha ilicifolia. We will continue to consider on a case-by-
case basis in future critical habitat rules whether to exclude specific 
lands from such designation when we determine that the benefits of such 
exclusion outweigh the benefits of their inclusion.
    Comment 14: One commenter indicated that the critical habitat 
proposal, if finalized, may adversely affect the Federal Aviation 
Administration's (FAA's) and San Diego County's ability to continue to 
operate McClellan-Palomar Airport in a safe and efficient manner 
because navigational aides (e.g., lights, maintenance road to access 
navigational aides) are within the area proposed as subunit 1A.
    Our Response: As stated above in our response to comment 11 above, 
we removed the lands in subunit 1A that do not contain the PCE, 
including all active agricultural fields, lands containing navigational 
aides associated with McClellen-Palomar Airport, a dirt maintenance 
road, and development areas in the City of Carlsbad. We remapped the 
boundary of subunit 1A, and we have verified that this area meets the 
definition of critical habitat. Based on currently available 
information, we believe that we have removed all existing navigational 
aides from the designated critical habitat. Additionally, we do not 
believe that regular maintenance of any navigational aides that we are 
currently unaware of, but have been inadvertently included in the 
designation, will adversely modify critical habitat. We are committed 
to working with the FAA and staff of McClellen-Palomar Airport to 
ensure that the designation of critical habitat does not impact the 
future safe and efficient operation of the airport.

[[Page 50462]]

Summary of Changes From the Proposed Rule

    In our March 14, 2007, proposed rule we identified 1,936 acres (ac) 
(783 hectares (ha)) of essential habitat for Acanthomintha ilicifolia 
in four units and seventeen subunits (72 FR 11946). At that time we 
proposed to exclude 1,302 ac (527 ha) under section 4(b)(2) of the Act 
(72 FR 11946; March 14, 2007). As we continued work on the proposed 
designation, we made two types of changes that affected the total area 
considered to meet the definition of critical habitat (what we will 
refer to as ``essential habitat''). First, we corrected simple mapping 
errors; for example, in one case we tallied a single piece of land 
twice in calculating the total number of acres thought to be essential 
habitat. Second, we removed areas that did not qualify as essential 
habitat either because they were developed and degraded or because they 
did not contain the PCE and were not otherwise considered essential. 
Table 1 depicts the changes made to the proposed rule published on 
March 14, 2007, and indicates how much area was removed (or added as 
was the case for some of the corrections) for each of the two reasons 
discussed above. As we continued work on the designation, we notified 
the public of new information we were using to make changes to the 
critical habitat (72 FR 66122, November 27, 2007; 73 FR 27483, May 13, 
2008). However, Table 1 and this discussion focus on the changes from 
the March 14, 2007, proposed rule (72 FR 11946) to this final rule. The 
details related to these changes are explained below.

      Table 1--Areas Proposed as Critical Habitat (72 FR 11946, March 14, 2007), Area Removed or Added as a
            Correction, Area Removed as Non-Essential Habitat, and Final Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
                                  Essential  habitat                         Area removed
                                   in  the March 14,   Area  subtracted   because it was not  Essential  habitat
  Critical habitat unit/subunit     2007  proposed      or  added as a     essential habitat   as  of this final
                                        rule *           correction *              *                rule *
----------------------------------------------------------------------------------------------------------------
Unit 1: Northern San Diego
 County:
    1A. Palomar Airport.........  88 ac (36 ha).....  ..................  26 ac (11 ha).....  62 ac (25 ha).
    1B. Southeast Carlsbad......  73 ac (29 ha).....  ..................  16 ac (6 ha)......  57 ac (23 ha).
    1C. Manchester..............  92 ac (37 ha).....  ..................  13 ac (5 ha)......  79 ac (32 ha).
Unit 2: Central San Diego
 County:
    2A. Los Pe[ntilde]asquitos    63 ac (25 ha).....  ..................  ..................  63 ac (25 ha).
     Canyon.
    2B. Sabre Springs...........  52 ac (22 ha).....  Subtracted: 0 ac    ..................  52 ac (21 ha).
                                                       (1 ha).
    2C. Sycamore Canyon.........  306 ac (124 ha)...  ..................  ..................  306 ac (124 ha).
    2D. Slaughterhouse Canyon...  77 ac (31 ha).....  ..................  ..................  77 ac (31 ha).
Unit 3: Viejas Mountain and
 Poser Mountain:
    3A. Viejas Mountain.........  33 ac (13 ha).....  ..................  1 ac (<1 ha)......  32 ac (13 ha).
    3B. Viejas Mountain.........  208 ac (84 ha)....  ..................  15 ac (6 ha)......  193 ac (78 ha).
    3C. Viejas Mountain.........  318 ac (128 ha)...  ..................  42 ac (16 ha).....  276 ac (112 ha).
    3D. Viejas Mountain.........  82 ac (33 ha).....  ..................  ..................  82 ac (33 ha).
    3E. Poser