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CFR Citation: 50 CFR Part 17

RIN ID: RIN 1018-AU84

FWS ID: [FWS-R8-ES-2008-0011; 92210-1117-0000-B4]

NOTICE: Part II

DOCUMENT ACTION: Final rule.

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

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

DOCUMENT 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.

SUMMARY: Interior Department, Fish and Wildlife Service,

SUPPLEMENTAL INFORMATION

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 slenderbranched rhizomes while others, including B. nevinii, have short stoutbranched 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 nowextirpated 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 ``nonrefractory seed'' (fireresister) syndrome (White 2007, p. 1). Shrubs with this life history strategy have seeds that do not require fireassociated cues for germination and generally recruit into chaparral in the absence of fire, potentially requiring long firefree 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 firefree 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 toofrequent 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, toofrequent fire can lead to the conversion of native shrublands to weedy annual grasslands (D'Antonio and Vitousek 1992, pp. 7475; 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 55545556).

In the proposed critical habitat rule (72 FR 5552; February 6, 2007), we inadvertently failed to mention an
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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 [[Page 8414]]
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 LandsExclusions 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 NonFederal 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 (http://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 shortbranched 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
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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 longterm 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, projectbyproject approach as would be achieved through multiple sitebysite, 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 nonFederal 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 LandsExclusions 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.

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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 selfincompatible 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 longterm 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 longterm 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 followup 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 nonjeopardy 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 sitespecific 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 federallylisted 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
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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 casebycase 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 landas 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 lakelevel 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
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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. 106554; 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 peerreviewed 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. 55585561). 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)
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elevation, and scattered naturalized occurrences are found outside the 900to 2,000foot (300 to 650m) 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, steeplysloped 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 northwestfacing slopes; however, exceptions to this have been noted, including several occurrences, both native and naturalized, found on south and westfacing 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: