Endangered and Threatened Wildlife and Plants; Final Rule Designating Critical Habitat for Ambrosia pumila (San Diego ambrosia)

Federal RegisterNov 30, 2010

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2009-0054; MO 92210-0-0009-B4]

RIN 1018-AW20

Endangered and Threatened Wildlife and Plants; Final Rule Designating Critical Habitat for Ambrosia pumila (San Diego ambrosia)

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), are designating critical habitat for

Ambrosia pumila

(San Diego ambrosia) under the Endangered Species Act of 1973, as amended. Approximately 783 acres (317 hectares) are being designated as critical habitat for

A. pumila

in Riverside and San Diego counties, California.

DATES:

This rule becomes effective on December 30, 2010.

ADDRESSES:

The final rule, final economic analysis, and map of critical habitat will be available on the Internet at

http://www.regulations.gov

at Docket No. FWS-R8-ES-2009-0054. 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, Suite 101, 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, 6010 Hidden Valley Road, Suite 101, Carlsbad, CA 92011; 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

We intend to discuss only those topics directly relevant to the designation of critical habitat for

Ambrosia pumila

under the Endangered Species Act of 1973 (Act), as amended (16 U.S.C. 1531

et seq.

), in this final critical habitat designation. For more information on the taxonomy, biology, and ecology of

A. pumila,

refer to the final listing rule published in the

Federal Register

on July 2, 2002 (67 FR 44372), the proposed critical habitat designation published in the

Federal Register

on August 27, 2009 (74 FR 44238), and the Notice of Availability (NOA) of the draft economic analysis (DEA) published in the

Federal Register

on May 18, 2010 (75 FR 27690).

New Information on Species' Description, Life History, Ecology, Habitat, and Geographic Range and Status

We received no new information pertaining to the description, life history, ecology, or habitat of

Ambrosia pumila

following the 2009 proposed critical habitat designation (74 FR 44238, August 27, 2009). However, we did receive and analyze new information related to the distribution and status of

A. pumila,

which is described below.

Geographic Range and Status

As described in the proposed rule,

Ambrosia pumila

is distributed in southern California from northwestern Riverside County, south through western San Diego County, to northwestern Baja California, Mexico (CNDDB 2010). It is generally found at or below elevations of 1,600 feet (ft) (487 meters (m)) in Riverside County, and 600 ft (183 m) in San Diego County (CNDDB 2010). Since publication of the proposed rule in the

Federal Register

on August 27, 2009 (74 FR 44238), we became aware of two additional occurrences of this species, both of which fall within the previously known geographic range of the species. One occurrence (Subunit 3B) is in the City of Temecula in Riverside County near the western end of 1st Street, just west of Murrieta Creek. This occurrence is believed to have been present at the time of listing because plants with clonal growth patterns tend to be long-lived (Watkinson and White 1985, pp. 44-45; Tanner 2001, p. 1980). Although stems may die and portions of the rhizome may disintegrate over time, except under extreme conditions, enough of the rhizome survives from one growing season to the next to support continued growth of an individual plant. Additionally, because the plants produce very few if any seeds, the ability of the plant to disperse into and colonize previously unoccupied areas is diminished. The second occurrence is located just west of Lake Hodges in the western portion of central San Diego County, on and adjacent to the west side of the Crosby National Golf Club. This occurrence was included in the listing rule, but was thought to have been possibly extirpated since the species was listed. This occurrence is now known to be extant.

Previous Federal Actions

Ambrosia pumila

was listed as an endangered species on July 2, 2002 (67 FR 44372). Designation of critical habitat was found to be prudent in the proposed (64 FR 72993; December 29, 1999) and final listing rules, but was deferred due to budgetary constraints and higher listing priorities. The Center for Biological Diversity filed a complaint in the U.S. District Court for the Southern District of California on December 19, 2007, challenging the Service's failure to designate critical habitat for four endangered plants, including

A. pumila

(

Center for Biological Diversity

United States Fish and Wildlife, et al.,

Case No. 07- CV-2378 NLS). The April 11, 2008, settlement agreement stipulates that the Service shall submit a determination as to whether it is prudent to designate critical habitat for

A. pumila,

and if prudent, submit a proposed critical habitat designation to the

Federal Register

for publication by August 20, 2009, and submit a final critical habitat designation to the

Federal Register

for publication by before August 19, 2010. By order dated August 3, 2010, the district court approved a modification to the settlement agreement that extends to November 19, 2010, the deadline for submission of a final revised critical habitat designation to the

Federal Register

. The proposed critical habitat designation published in the

Federal Register

on August 27, 2009 (74 FR 44238).

Summary of Changes From Proposed Rule To Designate Critical Habitat

In our 2009 proposed rule (74 FR 44247, August 27, 2009), we proposed approximately 802 acres (ac) (324 hectares (ha)) as critical habitat in 7 units with 8 subunits in Riverside and San Diego Counties, California. We reevaluated our data in conjunction with information received during the comment period and information obtained after the publication of the 2009 proposed rule. Based on this reevaluation, we changed our proposal to approximately 1,140 ac (461 ha) in 7 units, which collectively consist of 13 subunits (75 FR 27690, May 18, 2010). In this final critical habitat rule, we are designating approximately 783 ac (317 ha) as critical habitat in 6 units with 13 subunits, reflecting the exclusion of approximately 329 ac (133 ha) based on consideration of relevant impacts under section 4(b)(2) of the Act. All land designated as critical habitat in this final rule was included in the 2009 proposed rule (74 FR 44247, August 27, 2009) or the Notice of Availability

(NOA) for the Draft Economic Analysis (DEA) (75 FR 27690, May 18, 2010). Changes between this designation and the 2009 proposed designation are described below and in Table 1.

(1) In the proposed rule and the NOA, we considered lands covered under the Western Riverside County Multiple Species Habitat Conservation Plan (Western Riverside County MSHCP) in Subunits 1A and 1B, Unit 2 and Subunit 3B for exclusion under section 4(b)(2) of the Act. We have analyzed each of the areas considered for exclusion under the Western Riverside County MSHCP and determined that the benefits of exclusion outweigh the benefits of inclusion of approximately 118 ac (48 ha) of land in Unit 2 covered by the Western Riverside County MSHCP. We also determined that exclusion of this area will not result in extinction of the species. Therefore, we excluded this area from this critical habitat designation under section 4(b)(2) of the Act. For a complete discussion of the benefits of inclusion and exclusion, see Exclusions Under Section 4(b)(2) of the Act section below.

(2) In the proposed rule as modified by the NOA, we considered lands in Units 5A and 6 owned by or under the jurisdiction of the City of San Diego within the City of San Diego Subarea Plan under the Multiple Species Conservation Program (City of San Diego MSCP Subarea Plan) for exclusion under section 4(b)(2) of the Act. We have analyzed each of the areas considered for exclusion under the City of San Diego MSCP Subarea Plan and determined that the benefits of exclusion outweigh the benefits of inclusion of approximately 160 ac (65 ha) of land in Unit 6 covered by the City of San Diego MSCP Subarea Plan. Exclusion of this area will not result in extinction of the species. Therefore, we excluded this area from this critical habitat designation under section 4(b)(2) of the Act (

see

Exclusions Under Section 4(b)(2) of the Act section below).

(3) In the proposed rule as modified by the NOA, we considered lands in Subunit 5B and Unit 7 (Subunits 7A, 7B and 7C) owned by or under the jurisdiction of the County of San Diego within the County of San Diego Subarea Plan under the MSCP (County of San Diego MSCP Subarea Plan) for exclusion under section 4(b)(2) of the Act. We have analyzed each of the proposed areas within the County of San Diego MSCP Subarea Plan area and determined that the benefits of exclusion outweigh the benefits of inclusion of approximately 52 ac (21 ha) of land in Subunit 5B covered by the County of San Diego MSCP Subarea Plan that are conserved and managed under the Crosby at Rancho Santa Fe Habitat Management Plan. We also determined that exclusion of this area will not result in extinction of the species. Therefore, we excluded this area from this critical habitat designation under section 4(b)(2) of the Act (

see

Exclusions Under Section 4(b)(2) of the Act section below).

(4) The boundaries of Subunits 4A, 4B, and 4C have been modified to remove habitat that is not suitable for

Ambrosia pumila

according to data received after the proposed rule was published, and to remove widened portions of State Route 76 where habitat is no longer suitable for

A. pumila

(

see

Criteria Used To Identify Critical Habitat section below).

(5) To prepare final critical habitat maps, we overlay maps of those lands we are excluding from this critical habitat designation on polygons that are delineated using physical and biological features. This process often leaves small fragments of a proposed critical habitat unit or subunit that are not excluded but that, by themselves, may not be considered essential. We evaluated these areas and removed from the final designation habitat fragments remaining after areas are excluded that were not considered essential. As a result, the sum of the areas designated and excluded is slightly reduced in this final critical habitat designation compared to the size of the total proposed designation due to removal of small artifacts or fragments created by the exclusion process.

Table 1—A Comparison of the Areas Identified as Containing Features Essential to the Conservation of Ambrosia pumila in the 2009 Proposed Critical Habitat Designation and This Final Critical Habitat Designation

Location

2009 Proposed critical habitat

Acres

Hectares

Excluded under

section 4(b)(2)

Acres

Hectares

2010 Final critical

habitat

Acres

Hectares

Unit 1: Santa Ana River watershed

112

Subunit 1A: Alberhill (Lake Street)

Subunit 1B: Nichols Road

Unit 2: Skunk Hollow Vernal Pool watershed

118

Unit 3: Santa Margarita River watershed

Subunit 3A: Santa Gertrudis Creek

Subunit 3B: Murrieta Creek

Unit 4: San Luis Rey River watershed

126

Subunit 4A: Calle de la Vuelta

15*

Subunit 4B: Olive Hill Road

23*

Subunit 4C: Jeffries Ranch

33*

Subunit 4D: Gird/Monserate Hill

21**

Unit 5: San Dieguito River watershed—Lake Hodges

294

119

249

101

Subunit 5A: Lake Hodges East (Via Rancho Pkwy)

Subunit 5B: Lake Hodges West (Crosby Estates)

279

113

228

Unit 6: San Diego River watershed—Mission Trails Regional Park

198

160

Unit 7: Sweetwater River watershed

215

Subunit 7A: Jamul Drive

Subunit 7B: San Diego National Wildlife Refuge

133

Subunit 7C: Steele Canyon Bridge

Total

1,146

461

329

133

783

317

Values in this table may not sum or may differ slightly from values in the proposed rule and NOA due to rounding.

* Modified to remove habitat that is not suitable for

Ambrosia pumila.

** This number is different than the number given in the NOA due to a typographical error in the NOA.

Critical Habitat

Critical habitat is defined in section 3(5)(A) of the Act as:(1) The specific areas within the geographical area occupied by the 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 (2) specific areas outside the geographical area occupied by the 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(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—regulated taking.

Critical habitat receives protection under section 7(a)(2) of the Act through the prohibition against Federal agencies 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 physical and 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; that is, areas on which are found the primary constituent elements (PCEs) laid out in the appropriate quantity and spatial arrangement essential to the conservation of the species. Under section 3(5)(A)(ii) of the Act, the Secretary 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 he/she determines that those areas are essential for the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the

Federal Register

on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge.

Habitat is often dynamic, and species may naturally move within an area or from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all habitat areas that may eventually be determined necessary for recovery of the species, based on scientific data not now available. 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. Federal activities that may affect areas outside of critical habitat are still subject to review under section 7 of the Act if they may affect

Ambrosia pumila

. The prohibitions of section 9 of the Act applicable to listed plant species also continue to apply both inside and outside of designated critical habitat.

Areas that support occurrences of the species, but are outside the critical habitat designation, will continue to be subject to conservation actions we implement under section 7(a)(1) of the Act. In these areas, the species is 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 new information available to these planning efforts calls for a different outcome.

Physical and Biological Features

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas occupied by the species at the time of listing to propose as critical habitat, we consider those physical and biological features that are essential to the conservation of the species that may require special management considerations or protection. We consider the physical and biological features to be the PCEs laid out in the appropriate quantity and spatial arrangement essential 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 historical, geographical, and ecological distributions of a species.

Little is known about the specific characteristics of

Ambrosia pumila

habitat. Therefore, the PCEs for this species are based on our assessment of the ecosystem settings in which the species has most frequently been detected. The physical and biological features essential to the conservation of

A. pumila

are derived from studies of this species' habitat, ecology, and life history as described below, in the Background section of the proposed critical habitat designation published in the

Federal Register

on August 27, 2009 (74 FR 44238), and in the final listing rule published in the

Federal Register

on July 2, 2002 (67 FR 44372).

Space for Individual and Population Growth and for Normal Behavior

Clonal Growth—Rhizome Spread and New Aerial Stems

Individual

Ambrosia pumila

plants spread by slender underground rhizomes to produce a group of genetically identical aerial (above-ground) stems—a clone. Growing rhizomes extend underground beyond the extent of the aerial stems into adjacent suitable habitat, and rhizomes of adjacent plants likely intermingle to a degree. The distance rhizomes extend beyond the standing aerial stems is difficult to measure because of the difficulty in unearthing an intact rhizome system.

The number and spatial distribution of the aerial stems of

Ambrosia pumila

patches can differ from one growing season to the next (Martin 2005, p. 3; City of San Diego 2008a, p. 1). For example, a study that monitored

A. pumila

in 2000 and 2005 observed patches of

A. pumila

differing in shape and size (up to several square meters), with some patches not producing any stems in 2005 (some of the patches that did not produce stems in 2005 were observed to produce stems in 2008 (Martin 2005, p. 8; A. Folarin 2008, pers. comm.)). Differences in patch size and shape may be due to differences in available moisture or competition from other plants (Martin 2005, p. 3; City of San Diego 2008a, p. 1). Based on these and other observations, we conclude that the rhizome system of a group of

A. pumila

stems likely occupies a greater underground area than that occupied by the aerial stems at any given time, and aerial stems may be produced only when and where conditions are appropriate. Thus, habitat occupied by

A. pumila

extends beyond that seen to be occupied by the aerial stems, and area designated as critical habitat must extend beyond the area seen to be occupied by standing aerial stems to encompass the estimated limits of the underground rhizome system.

Germination of Seeds and Spread of Seedlings

It is unknown to what extent and with what frequency

Ambrosia pumila

reproduces by seeds. Based on genetic studies described below, at least some low rate of sexual reproduction has occurred. We are not aware of any research that would provide the information needed to assess the species' germination and seedling needs.

Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements

Water

Specific water needs of the species are unknown.

Ambrosia pumila

is adapted to the dry conditions which occur annually throughout its range (Keck 1959, p. 1103; Munz 1974, p. 112; Dudek 2000, Appendix A; CNLM 2008, p. 18). Service biologists have observed fresh (not desiccated) aerial stem shoots after small amounts of precipitation and after annual vegetation in the area had desiccated (A. Folarin 2008, pers. comm.), implying that either

A. pumila

requires less water than other grassland plants, that the underground perennial rhizome system has some capacity to store enough water to sustain growth, or both. Additionally, we believe that periodic flooding may be necessary at some stage of the plant population's life history (such as seed germination, dispersal of seeds and rhizomes) or to maintain some essential aspect of its habitat, because native occurrences of the plant are always found on river terraces or within the watersheds of vernal pools.

Light

Ambrosia pumila

is limited to open or low-growing plant communities, which implies that the species is not shade tolerant (Dudek 2000, pp. 18-19).

Ambrosia pumila

stems amid taller vegetation obtain adequate sunlight by growing taller and more slender compared to those in more open areas (Dudek 2000, p. 19), which implies the species is not shade tolerant.

Soil

Ambrosia pumila

is found primarily on sandy loam or clay soils including (but not limited to) the Placentia (sandy loam), Diablo (clay), and Ramona (sandy loam) series (Dudek 2000, Appendix A; CNDDB 2010).

Ambrosia pumila

is rarely found growing on other substrate types (such as gravel).

Chemical soil attributes and other abiotic and biotic characteristics have been measured and documented for

Ambrosia pumila

occurrences at Skunk Hollow (Riverside County), Mission Trails Regional Park, and San Diego National Wildlife Refuge (San Diego County) (Dudek 2000, Appendix A; CNLM 2008, pp. 6-7, 12, and 18), including pH, percent organic matter, soil moisture, and elemental composition. These measurements did not provide consistent results across the range of the species; thus, we are unable to make generalizations as to needs of the species as far as soil attributes are concerned.

Temperature

We have no information on the tolerance of

Ambrosia pumila

to climatic extremes. Temperature is thought to potentially play a role in inducing (or prohibiting) seed germination (Johnson 1999, p. 5), although there is limited information at this time as to how often this species currently reproduces via seed.

Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring

As stated in the “Life History” section of the proposed rule, little is known about the nature and frequency of sexual reproduction in

Ambrosia pumila.

Occurrences are consistently found on the upper terraces of rivers and other waterways; consequently, periodic flooding of these waterways likely plays or likely has played a role in the life history of the plant. For example, Johnson (1999, p. 5) postulated that

A. pumila

seeds may require soaking in flood waters or scarification as they are churned about with debris in flood waters to germinate. Additionally, floods may disperse

A. pumila

rhizomes and seeds (Dudek 2003, p. P-332) and create space for new stems by removing or limiting the growth of competitors.

Presuming

Ambrosia pumila

is wind pollinated, as discussed in the “Life

History” section of the proposed rule, the species requires sufficient airflow through inflorescences to pick up and carry pollen (McGlaughlin and Friar 2007, p. 329). This is another reason (in addition to not being shade-tolerant) that

A. pumila

may require habitat containing primarily low-growing plants—low-growing plants do not block or dramatically reduce airflow to plants of

A. pumila'

s stature, which is generally less than 12 inches (30 centimeters) tall (McGlaughlin and Friar 2007, p. 329).

Ambrosia pumila

is presumed to be self-compatible (an individual can produce viable seed with its own pollen), but this aspect of the species' reproductive strategy has not been well-examined. In a recent study, another

Ambrosia

species previously thought to be self-compatible was found not to be self-compatible (Friedman and Barrett 2008, p. 4). If

A. pumila

likewise is not self-compatible, genetically distinct individuals in close proximity to one another may be crucial to maintaining sexual reproduction in the species (McGlaughlin and Friar 2007, p. 329).

Habitats Protected From Disturbance or Representative of the Historical, Geographical, and Ecological Distributions of the Species

Ambrosia pumila

occurs most frequently on upper terraces of rivers with flat or gently sloping areas of 0 to 42 percent slopes.

A. pumila

occurrences are found near, but not directly adjacent to, the river channels and along other drainages in western Riverside County, western San Diego County, and northwestern Baja California, Mexico (Beauchamp 1986, p. 94; Johnson

et al.

1999, p. 1; McGlaughlin and Friar 2007, p. 321; CNDDB 2008). These areas are or likely have been associated with a natural flood disturbance regime. The species is primarily associated with native and nonnative grassland and ruderal communities, and openings in coastal sage scrub (Johnson

et al.

1999, p. 1; Dudek 2000, p. 18; Dudek 2003, p. P-330; CNDDB 2010). In Riverside County,

A. pumila

occurs in ruderal and nonnative grassland communities adjacent to creeks and other smaller drainages (for example, Temescal (Alberhill) Creek and Santa Gertrudis Creek) (Dudek 2003, p. P-326; CNDDB 2010).

Ambrosia pumila

also occurs in nonnative grassland community adjacent to and within the watershed of Skunk Hollow vernal pool in Riverside County (Dudek 2003, p. P-326; CNDDB 2010). In San Diego County,

A. pumila

is more often found adjacent to larger waterways (for example, San Luis Rey River, San Diego River, and Sweetwater River), although the species is also often found associated with smaller drainages and washes (CNDDB 2010).

Occurrences in Riverside County are found further inland and at higher elevations than in San Diego County. For example, the occurrence at Skunk Hollow in Riverside County is 1,350 ft (411 m) above sea level, while the occurrences at Mission Trails Regional Park and San Diego National Wildlife Refuge in San Diego County are about 315 ft and 360 ft (96 m and 110 m) above sea level, respectively (CNLM 2008, p. 7)).

The documented range of

Ambrosia pumila

in Mexico at the time of listing extended from Cabo Colonet south to Lake Chapala in north-central Baja California. We have no information regarding additional occurrences in Mexico, or the physical and biological features essential to the conservation of the species there.

Primary Constituent Elements for Ambrosia pumila

Under the Act and its implementing regulations at 50 CFR 424.12, we are required to identify the specific areas within the geographical area occupied by a species, at the time it is listed, on which are found those physical or biological features determined to be essential to the conservation of the species and that may require special management considerations or protection. The essential physical and biological features are those PCEs laid out in the appropriate spatial arrangement and quantity determined to be essential to the conservation of the species. Because not much is known about the specific needs and characteristics of this species, the PCEs are based on observed characteristics of the habitats in which the species is most often found. All areas designated as critical habitat for

A. pumila

were occupied at the time the species was listed, occur within the species' historical geographic range, and contain sufficient PCEs to support at least one life-history function.

Based on the above needs and our current knowledge of the life history, biology, and ecology of

Ambrosia pumila,

and the characteristics of the areas where the species is known to occur, we identified two PCEs for

A. pumila:

1. Sandy loam or clay soils (regardless of disturbance status), including (but not limited to) the Placentia (sandy loam), Diablo (clay), and Ramona (sandy loam) soil series that occur near (up to several hundred meters from but not directly adjacent to) a river, creek, or other drainage, or within the watershed of a vernal pool, and that occur on an upper terrace (flat or gently sloping areas of 0 to 42 percent slopes are typical for terraces on which

Ambrosia pumila

occurrences are found).

2. Grassland or ruderal habitat types, or openings within coastal sage scrub, on the soil types and topography described in PCE 1, that provide adequate sunlight, and airflow for wind pollination.

Based on our current knowledge of the needs of the species, we believe the need for space for individual and population growth and normal behavior is met by PCE 2, and areas for reproduction, water, light, and soil are provided by PCEs 1 and 2. These areas provide nutrients, moisture, and proximity to water features that provide periodic flooding presumed necessary for the plant's persistence.

In designating this critical habitat, we intend to conserve the physical and biological features considered essential to support the life-history functions of the species. All units and subunits designated here as critical habitat contain sufficient PCEs in the appropriate quantity and spatial arrangement to provide for one or more of the life-history functions of

Ambrosia pumila.

Special Management Considerations or Protection

When designating critical habitat, we assess whether the occupied areas contain the physical and biological features that are essential to the conservation of the species, and whether these features may require special management considerations or protection. The area designated as critical habitat will require some level of management to address the current and future threats to the physical and biological features essential to the conservation of the species. In all units, special management will be required to ensure that the habitat is able to provide for the growth and reproduction of the species.

Records indicate that

Ambrosia pumila

historically was known from over 50 locations in San Diego and Riverside counties, but the number of extant occurrences has been dramatically reduced because much of the species' habitat has been impacted by human activities (Burrascano and Hogan 1997, p. 7; Dudek 2000, p. 17; CNDDB 2010). A detailed discussion of threats to

A. pumila

and its habitat can be found in the final listing rule (67 FR 44372, July 2, 2002). The features essential to the conservation of

A. pumila

require special management

considerations or protection to reduce the following threats, among others:

• Habitat destruction caused by urban development, including highway and utility corridor construction and maintenance, highway expansion, and development of recreational facilities (such as golf courses and campgrounds). These activities can destroy the PCEs by removing or compacting soil, making habitat unsuitable for

Ambrosia pumila.

• Soil compaction caused by the creation and use of trails by hikers, horses, and vehicles.

Ambrosia pumila

appears to be tolerant to some level of disturbance caused by trail creation and use; it is often found in the disturbed areas along margins of dirt trails. However, it is found less often in trailways, implying that although the appropriate soil type might be present, soil compaction can alter soil physical characteristics such that the soil can no longer support plant growth (PCE 1).

• Habitat alteration caused by invasion of nonnative plant species that may, if present in large enough numbers, change the plant assemblage or cover density to the extent that

Ambrosia pumila

plants can no longer receive adequate sunlight and airflow (PCE 2).

• Alteration of hydrological and floodplain dynamics, such as channelization and water diversions, (an additional threat not discussed in the listing rule), which can change the frequency of flooding in occupied areas or eliminate natural periodic flooding presumed necessary for the plant's long-term persistence (PCE 1).

Special management considerations or protection are required within critical habitat areas to address these threats. Management activities that could ameliorate these threats include fencing

Ambrosia pumila

occurrences and providing signage to discourage encroachment by hikers, horses, and off-road vehicle users; control of nonnative plants using methods shown to be effective (for examples, see CNLM 2008); guiding the design of development projects to avoid impacts to

A. pumila

habitat; and restoring and maintaining natural hydrology and floodplain dynamics of waterways associated with

A. pumila

occurrences where feasible. These management activities will help protect the PCEs for the species by reducing soil compaction (PCE 1), lowering the density of nonnative plants thereby maintaining the appropriate community structure (PCE 2), and maintain periodic flooding of

A. pumila

habitat where possible (PCE 1).

Criteria Used To Identify Critical Habitat

As required by section 4(b) of the Act, we used the best scientific and commercial data available in determining areas within the geographical area occupied at the time of listing that contain the features essential to the conservation of

Ambrosia pumila.

We are designating critical habitat in areas that we consider to have been occupied by the species at the time of listing and that continue to be occupied today, and that contain the PCEs laid out in the appropriate quantity and spatial arrangement essential to the conservation of the species (

see

the “

Geographic Range and Status

” section of the proposed critical habitat rule (74 FR 44241, August 27, 2009) for more information). We are not designating any areas outside the geographical range occupied at the time of listing. All units and subunits contain the PCEs of

A. pumila

habitat.

We also reviewed available information that pertains to the habitat requirements of this species, although

A. pumila

has not been well-studied and little is known about its breeding system or habitat requirements and characteristics. Additionally, some data from different information sources conflict, further complicating the task of discerning species' habitat requirements. We used sources of information, such as reports submitted to the Service during section 7 consultations and other project reviews, and by biologists holding section 10(a)(1)(A) recovery permits; research published in peer-reviewed articles; research presented in academic theses and agency reports; regional Geographic Information System (GIS) coverages; and data collected in the field by Service biologists.

Ambrosia pumila

was first detected after listing of the species in two of the areas we are designating as critical habitat. We concluded these areas were occupied at the time the species was listed because individuals of species with a clonal growth habit like

A. pumila

are usually long-lived (Watkinson and White 1985, pp. 44-45; Tanner 2001, p. 1980). The occurrence at the intersection of State Route 76 and Olive Hill Road in San Diego County (Subunit 4B) was found during a general survey for

A. pumila

in 2006 (CNDDB 2010). The occurrence near the intersection of State Route 76 and Gird Road in San Diego County (Subunit 4D) was mapped during a survey for a State Route 76 road widening project (GIS data provided to the Service by California Department of Transportation in 2009; USFWS 2008). To our knowledge, these two areas had not been adequately, if at all, surveyed for

A. pumila

prior to discovery, and we have no reason to believe the plant was imported, or had dispersed into these areas from other locations after listing because the plants produce very few if any seeds and, consequently, the ability of the plant to disperse into and colonize previously unoccupied areas is diminished. It is unlikely that the species would be able to disperse great distances and colonize new areas (

see

Index Map below). We believe that the occurrences identified since listing were in existence for many years and were only recently detected due to increased awareness of this species.

We are also designating critical habitat in some areas where Ambrosia pumila was thought to be extirpated and where an occurrence exists that was not considered viable at the time of listing. We conducted surveys of historical occurrences as part of the background research for this rule. Based on information provided by a local biological consultant, we were able to verify one occurrence east of Lake Hodges in San Diego County that was previously thought to be extirpated because it had not been seen since 1999. During our development of the proposed rule, we were unable to verify this site because the available records contained minimal site location information. However, our recent survey (2009) of the site east of Lake Hodges in San Diego County found a viable, relatively large

A. pumila

occurrence and we determined this site meets the definition of critical habitat (

see

criteria below). All units and subunits contain the physical and biological features believed to be essential to the conservation of this species.

As required by section 4(b)(1)(A) of the Act, we used the best scientific and commercial data available in trying to determine areas that contain the physical and biological features that are essential to the conservation of

Ambrosia pumila,

and that may require special management considerations or protection.

After identifying the PCEs, we followed these steps to delineate critical habitat:

(1) We identified all extant, natural occurrences of

Ambrosia pumila,

which consist of those known to exist at the time of listing, and those subsequently detected that we believe existed at the time of listing. We compiled data from the following sources to create our database of

A. pumila

occurrences: (1) Data used in the 2002 listing rule for

A. pumila

(67 FR 44372, July 2, 2002); (2)

the current CNDDB element occurrence data report for

A. pumila

and accompanying GIS references (CNDDB 2010, pp. 1-50); (3) data from the on-line Consortium of California Herbaria and accompanying Berkeley Mapper GIS records (Consortium of California Herbaria 2010); (4) the Western Riverside County Multiple Species Habitat Conservation Plan (Western Riverside County MSHCP) species GIS database; and (5) the Carlsbad Fish and Wildlife Office's (CFWO) internal GIS species database, which includes the species data used for the San Diego Multiple Species Conservation Program (MSCP) and the San Diego Multiple Habitat Conservation Plan (MHCP), reports from section 7 consultations, and Service observations of

A. pumila

(CFWO internal species GIS database). We used these data to delineate GIS polygons around

A. pumila

occurrences.

First, we reviewed the data that we compiled to ensure its accuracy. We checked each data point to ensure it represented a site documented by a herbarium voucher or reported observation of

Ambrosia pumila

and was not a duplicate occurrence in the database. Any duplicates detected were removed from the database. Secondly, we checked each data point to ensure that it was correctly mapped. Data points that did not match the description for the original herbarium collection or observation were remapped in the correct location, if possible. We removed occurrences where the location could not be determined from available data or site visits. Third, we determined occupancy status. For areas where we have past occupancy data for

A. pumila,

we assumed the area remained occupied unless: (1) Multiple surveys for the species did not find

A. pumila;

(2) the site was significantly disturbed (for example, developed) since the last observation of the species; or (3) records lacked specific location information, and field surveys carried out in conjunction with this critical habitat determination could not locate the occurrence.

(2) We determined there are no specific areas outside the geographical area occupied by

Ambrosia pumila

at the time it was listed that are essential for the conservation of the species. Information obtained during the Service's research in connection with this action indicates that the geographical area occupied by the species at the time it was listed provides sufficient resources for the conservation of the species. For example, McGlaughlin and Friar (2007, p. 329) conducted an analysis of genetic diversity within and among populations of

A. pumila

and determined that the existing occurrences could support recovery of the species. We do not have sufficient information regarding the specific needs of the species to determine if any areas outside the geographical area occupied by

Ambrosia pumila

at the time it was listed are essential for the conservation of the species.

(3) We removed areas where

Ambrosia pumila

occurs in habitat of low quality for growth and propagation (such as paved areas, or relatively small urban lots surrounded by residential development and continuously subjected to impacts of urbanization such as mowing or foot and vehicle traffic). For example, we did not include one occurrence in the City of El Cajon on a site composed of two residential lots less than half an acre in size, one mowed and landscaped, the other with highly disturbed and compacted soil. Although occupied, we did not consider these locations for critical habitat because they likely do not contribute to the long-term conservation of the species. We made this determination using site descriptions in the CNDDB, satellite imagery, and by talking with Service biologists, other researchers, and land managers familiar with the areas in question.

(4) Using data from studies that mapped the aerial stems of

Ambrosia pumila,

we estimated the distance the rhizome system likely extends beyond aerial stems clusters by calculating the average distance between aerial stems clusters within a CNDDB occurrence polygon. An occurrence is defined by CNDDB as an occupied habitat area separated by 0.25 mi (0.40 km) or more from the next nearest occupied habitat area. Using this method we estimated the average distance of underground rhizome expansion beyond the above-ground aerial stems as approximately 1,181 ft (260 m). Therefore, we expanded the outer boundary of the above-ground extent of each CNDDB occurrence polygon by 1,181 ft (260 m) to account for the underground rhizome system extending beyond the area occupied by visible stems. We believe this distance adequately captures the extent of individual occurrences.

(5) We removed any areas within the boundary mapped in step (4) above where vegetation type was not grassland, ruderal, or coastal sage scrub, using the vegetation types in our GIS database and personal observations by Service biologists and other researchers or land managers.

When determining the critical habitat boundaries, we made every effort to map precisely only the areas that contain the PCEs and provide for the conservation of

Ambrosia pumila.

However, we cannot guarantee that every fraction of critical habitat contains the PCEs due to the mapping scale we use to identify critical habitat boundaries. We made every attempt to avoid including developed areas such as lands underlying buildings, paved areas, and other structures that lack PCEs for

A. pumila.

The scale of maps prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed areas. Any developed structures and the land under them inadvertently left inside critical habitat boundaries shown on the maps of this final critical habitat designation are excluded by text in this rule and are not designated as critical habitat. Therefore, Federal actions involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific actions may affect the species or PCEs in adjacent critical habitat.

Critical Habitat Designation

We are designating 783 ac (317 ha) of critical habitat for

Ambrosia pumila

in 6 units that include 13 subunits. The critical habitat areas outlined in Table 2 and described below constitute our best assessment of areas occupied at the time of listing that contain the PCEs laid out in the appropriate quantity and spatial arrangement essential to the conservation of the species that may require special management considerations or protection. We are not designating any areas outside the geographic area occupied by the species at the time of listing because we determined that occupied lands within the species' known geographical range are sufficient for the conservation of

A. pumila.

Each unit and subunit include suitable habitat that will allow for population growth and growth of individual plants represented by aerial stems and the associated rhizome system.

Table 2—Area Estimates (Acres) (Hectares) and Land Ownership for Ambrosia pumila Final Critical Habitat

Unit #: Unit name (CNDDB element occurrence number)

Federally owned land

Acres

Hectares

State or local government-owned land

Acres

Hectares

Privately-owned land

Acres

Hectares

Total area

Acres

Hectares

RIVERSIDE COUNTY

Unit 1: Santa Ana River watershed

112

1A. Alberhill (58)

1B. Nichols Road (44)

Unit 3: Santa Margarita River watershed

Subunit 3A: Santa Gertrudis Creek

Subunit 3B: Murrieta Creek

Subtotal:

154

189

SAN DIEGO COUNTY

Unit 4: San Luis Rey River watershed

4A. Calle de la Vuelta (43)

4B. Olive Hill Road (16)

4C. Jeffries Ranch (45)

4D. Gird/Monserate Hill (n/a)

Unit 5: San Dieguito River watershed

129

121

249

101

5A. Lake Hodges East (Via Rancho Pkwy) (14)

Subunit 5B: Lake Hodges West (Crosby Estates)

113

115

228

Unit 6: San Diego River watershed—Mission Trails Regional Park

Unit 7: Sweetwater River watershed

146

215

Subunit 7A: Jamul Road

7B. SDNWR (48)

118

133

7C. Steele Canyon Bridge (34)

Subtotal

146

164

284

115

594

240

Total

146

199

438

178

783

316

Values in this table may not sum due to rounding.

Critical Habitat Units

Presented below are brief descriptions of all subunits included in the final critical habitat designation and reasons why they meet the definition of critical habitat for

Ambrosia pumila.

The subunits are listed in order geographically north to south and east to west.

Unit 1: Santa Ana River Watershed

Unit 1 is located in western Riverside County and consists of two subunits totaling approximately, 26 ac (11 ha) of State or local government-owned land, and 85 ac (35 ha) of private land for a total of approximately 112 ac (45 ha) (values do not sum due to rounding).

Subunit 1A: Alberhill

Subunit 1A is located near Alberhill, north of Lake Elsinore and just west of Interstate Highway 15 in Riverside County, California. This subunit is near the northern base of Alberhill Mountain, and near the intersection of Lake Street and Temescal Canyon Road. Subunit 1A consists of approximately 23 ac (10 ha) of County-owned land, and 18 ac (7 ha) of privately owned land for a total of approximately 41 ac (17 ha). The approximately 23 ac (10 ha) of County-owned land in Subunit 1A are conserved and currently managed by the Western Riverside County Regional Conservation Authority; transfer of ownership by the County of Riverside to the Western Riverside County Regional Conservation Authority is planned for the near future. This conserved area is not yet receiving active management. This subunit was occupied at the time of listing and remains occupied and, like all other extant occurrences, we also believe this subunit is essential to the conservation of this species because of its contribution to the genetic diversity of the species (McGlaughlin and Friar 2007, p. 329; see Genetics section of the proposed rule (74 FR 44241, August 27, 2009)). Subunit 1A contains the physical and biological features essential to the conservation of

Ambrosia pumila,

including sandy loam or clay soils located on an upper terrace of a water source, which provide nutrients, moisture, and potentially periodic flooding presumed necessary for the plant's persistence (PCE 1); and coastal sage scrub vegetation, which allows adequate sunlight and airflow for

A. pumila

(PCE 2). The PCEs in this subunit require special management considerations or protection to address threats from nonnative plant species in situations where nonnative species are outcompeting

A. pumila

for resources, and from human encroachment and development. Please see the Special Management Considerations or Protection section of this rule for a discussion of the threats to

A. pumila

habitat and potential management considerations.

Subunit 1B: Nichols Road

Subunit 1B is located about 2.1 mi (3.5 km) southeast of Subunit 1A (Alberhill), on the north and south sides

of Nichols Road, in Riverside County, California. This subunit is near the southeastern base of Alberhill Mountain, just west of Durant Road and Temescal Creek. Subunit 1B consists of approximately 3 ac (1 ha) of State or local government-owned land, and 67 ac (27 ha) of privately owned land for a total of approximately 70 ac (29 ha) (values do not sum due to rounding). No lands in Subunit 1B are conserved or managed for biological resources. This subunit was occupied at the time of listing and remains occupied, and is essential to the conservation of this species because this subunit (along with Subunit 1A) represents the northernmost occurrences of this species, which is geographically situated to potentially assist this species expand its range northward. Like all other extant occurrences, this subunit is also essential to the conservation of this species because of its contribution to the genetic diversity of the species (McGlaughlin and Friar 2007, p. 329; see Genetics section of the proposed rule (74 FR 44241, August 27, 2009)). However, due to impacts from unauthorized grading and disking, and a permitted road realignment project,

Ambrosia pumila

within this subunit may be in imminent danger of extirpation. Subunit 1B contains physical and biological features that are essential to the conservation of

A. pumila,

including sandy loam or clay soils located on an upper terrace of a water source, which provide nutrients, moisture, and periodic flooding presumed necessary for the plant's persistence (PCE 1), and ruderal habitat type, which allows adequate sunlight and airflow for

A. pumila

(PCE 2). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from nonnative plant species in situations where nonnative species are outcompeting

A. pumila

for resources, and from activities (grading, construction, human encroachment) that occur in the area. Please see the Special Management Considerations or Protection section of this rule for a discussion of the threats to

A. pumila

habitat and potential management considerations.

Unit 3: Santa Margarita River Watershed

Unit 3 is located in western Riverside County and consists of two subunits totaling approximately, 8 ac (3 ha) of State or local government-owned land, and 69 ac (28 ha) of private land for a total of 77 ac (31 ha).

Subunit 3A: Santa Gertrudis Creek

Subunit 3A is located about 1 mile (1.6 km) southwest of Unit 2, along the San Diego Aqueduct, south of the intersection of Chandler and Suzi Roads and north of Santa Gertrudis Creek in Riverside County. Subunit 3A consists of approximately 8 ac (3 ha) of State-owned land and 25 ac (10 ha) of privately owned land for a total of approximately 33 ac (13 ha). No lands in Subunit 3A are conserved or managed for biological resources. This unit was occupied at the time of listing and remains occupied, and like all other extant occurrences, is essential to the conservation of this species because of its contribution to the genetic diversity of the species (McGlaughlin and Friar 2007, p. 329; see Genetics section of the proposed rule (74 FR 44241, August 27, 2009)). Subunit 3A contains physical and biological features that are essential to the conservation of

Ambrosia pumila,

A. pumila

(PCE 2). The physical and biological features essential to the conservation of the species in this unit may require special management considerations or protection to address threats from nonnative plant species in situations where nonnative species are outcompeting

A. pumila

for resources, human encroachment, and utility maintenance activities. Please see the Special Management Considerations or Protection section of this rule for a discussion of the threats to

A. pumila

habitat and potential management considerations.

Subunit 3B: Murrieta Creek

Subunit 3B is located in the City of Temecula in southwestern Riverside County, California. This subunit is near the western end of 1st Street, just west of Murrieta Creek. Subunit 3B consists of approximately 44 ac (18 ha) of privately owned land. No lands in Subunit 3B are conserved or managed for biological resources. This subunit meets the definition of critical habitat for this species because of its contribution to the genetic diversity of the species (McGlaughlin and Friar 2007, p. 329; see Genetics section of the proposed rule (74 FR 44241, August 27, 2009)). Subunit 3B contains physical and biological features that are essential to the conservation of

Ambrosia pumila,

including sandy loam or clay soils located on an upper terrace of a water source, which provide nutrients, moisture, and periodic flooding presumed necessary for the plant's persistence (PCE 1), and nonnative grassland habitat type, which allows adequate sunlight and airflow for

A. pumila

for resources, from human foot and vehicle traffic that may occur in the area, and from development. Please see the Special Management Considerations or Protection section of this rule for a discussion of the threats to

A. pumila

habitat and potential management considerations.

Unit 4: San Luis Rey River Watershed

Unit 4 is located in northwestern San Diego County and consists of four subunits of approximately 17 ac (7 ha) of State or local government-owned land and approximately 74 ac (30 ha) of privately owned land, for a total of approximately 91 ac (37 ha).

Subunit 4A: Calle de la Vuelta

Subunit 4A is located near junction of State Route 76 and Calle de la Vuelta in unincorporated San Diego County. Subunit 4A consists of approximately 0.8 ac (0.3 ha) of State or local government-owned land and 14 ac (6 ha) of privately owned land, for a total of approximately 15 ac (6 ha). No lands in Subunit 4A are conserved or managed for biological resources. This subunit was occupied at the time of listing and, like all other extant occurrences, we also believe this subunit is essential to the conservation of this species because of its contribution to the genetic diversity of the species (McGlaughlin and Friar 2007, p. 329; see Genetics section of the proposed rule (74 FR 44241, August 27, 2009)). Subunit 4A contains physical and biological features that are essential to the conservation of

Ambrosia pumila,

including sandy loam or clay soils located on an upper terrace of a water source, which provide nutrients, moisture, and periodic flooding presumed necessary for the plant's persistence (PCE 1), and ruderal vegetation, which allows adequate sunlight and airflow for

A. pumila

(PCE 2). The PCEs in this subunit may require special management considerations or protection to address threats from nonnative plant species in situations

where nonnative species are outcompeting

A. pumila

for resources, human encroachment, road maintenance activities, and future widening of State Route 76. Please see the Special Management Considerations or Protection section of this rule for a discussion of the threats to

A. pumila

habitat and potential management considerations.

Subunit 4B: Olive Hill Road

Subunit 4B is located on the west side of State Route 76, south of Olive Hill Road in unincorporated San Diego County. Subunit 4B consists of approximately 16 ac (6 ha) of State or local government-owned land and approximately 8 ac (3 ha) of privately owned land, for a total of approximately 23 ac (9 ha) (values do not sum due to rounding). No lands in Subunit 4B are conserved (a portion of Subunit 4B is within the Groves mitigation preserve, managed by the California Department of Transportation (Caltrans); this area has not yet been conserved). The occurrence in this subunit was erroneously considered extirpated at the time of listing, but has since been found to be extant. Like all other extant occurrences, we also believe this subunit is essential to the conservation of this species because of its contribution to the genetic diversity of the species (McGlaughlin and Friar 2007, p. 329; see Genetics section of the proposed rule (74 FR 44241, August 27, 2009)). Subunit 4B contains physical and biological features that are essential to the conservation of

Ambrosia pumila,

including sandy loam or clay soils located on an upper terrace of a water source, which provide nutrients, moisture, and flooding presumed necessary for the plant's persistence (PCE 1), and grassland vegetation which allow adequate sunlight and airflow for

A. pumila

(PCE 2). The PCEs in this subunit may require special management considerations or protection to address threats from nonnative plant species in situations where nonnative species are outcompeting

A. pumila

habitat and potential management considerations.

Subunit 4C: Jeffries Ranch

Subunit 4C is located approximately 0.7 mi (1 km) southwest of Bonsall Bridge, adjacent to the south side of State Route 76 in the City of Oceanside, San Diego County. Subunit 4C consists of approximately 0.1 ac (0.05 ha) of State or local government-owned land and approximately 33 ac (13 ha) of privately owned land for a total of approximately 33 ac (13 ha). No lands in Subunit 4C are conserved. This subunit was occupied at the time of listing and, like all other extant occurrences, we believe this subunit is essential to the conservation of this species because of its contribution to the genetic diversity of the species (McGlaughlin and Friar 2007, p. 329; see Genetics section of the proposed rule (74 FR 44241, August 27, 2009)). Subunit 4C contains physical and biological features that are essential to the conservation of

Ambrosia pumila,

including sandy loam or clay soils located on an upper terrace of a water source, which provide nutrients, moisture, and periodic flooding presumed necessary for the plant's persistence (PCE 1), and nonnative grassland vegetation, which allows adequate sunlight and airflow for

A. pumila

(PCE 2). The PCEs in this subunit may require special management considerations or protection to address threats from nonnative plant species in situations where nonnative species are outcompeting

A. pumila

for resources, human encroachment, road and utility maintenance activities, future widening of State Route 76, and potential development. Please see the Special Management Considerations or Protection section of this rule for a discussion of the threats to

A. pumila

habitat and potential management considerations.

Subunit 4D: Gird/Monserate Hill

Subunit 4D is located in the Fallbrook area of northern San Diego County, California. This subunit is adjacent to the north side of State Route 76, almost equidistant from Gird Road (to the west) and Monserate Hill Road (to the east). Subunit 4D consists of 0.7 ac (0.3 ha) of State-owned land and 20 ac (8 ha) of privately owned land, for a total of 21 ac (9 ha) (values do not sum due to rounding). No lands in Subunit 4D are conserved or managed for biological resources. This subunit was occupied at the time of listing and, like all other extant occurrences, we believe this subunit is also essential to the conservation of this species because of its contribution to the genetic diversity of the species (McGlaughlin and Friar 2007, p. 329; see Genetics section of the proposed rule (74 FR 44241, August 27, 2009)). Subunit 4D contains physical and biological features that are essential to the conservation of

A. pumila,

including sandy loam or clay soils located on an upper terrace of a water source, which provide nutrients, moisture, and periodic flooding presumed necessary for the plant's persistence (PCE 1); and nonnative grassland vegetation, which allows adequate sunlight and airflow for

A. pumila

(PCE 2). The PCEs in this subunit may require special management considerations or protection to address threats from nonnative plant species in situations where nonnative species are out-competing

A. pumila

for resources, from human encroachment that may occur in the area, and from development and road maintenance. Please see the Special Management Considerations or Protection section of this rule for a discussion of the threats to

A. pumila

habitat and potential management considerations.

Unit 5: San Dieguito River Watershed—Lake Hodges

Unit 5 is located in central San Diego County and consists of two subunits comprised of approximately 129 ac (52 ha) of State or local government-owned land and approximately 121 ac (49 ha) of privately owned land, for a total of approximately 249 ac (101 ha) (values do not sum due to rounding). This total does not include a portion of Subunit 5B (52 ac (21 ha)) that we have excluded from this designation under section 4(b)(2) of the Act (

see

the Exclusions under Section 4(b)(2) of the Act section of this rule).

Subunit 5A: Lake Hodges East (Via Rancho Pkwy)

Subunit 5A is located on the west side of Interstate 15, just north of Lake Hodges and south of Via Rancho Parkway in San Diego County. Subunit 5A consists of approximately 16 ac (6 ha) of State or local government owned land and approximately 5 ac (2 ha) of privately owned land, for a total of approximately 21 ac (9 ha) (values do not sum due to rounding). No lands in Subunit 5A are conserved or managed for biological resources. This subunit was occupied at the time of listing and, like all other extant occurrences, we also believe this subunit is essential to the conservation of this species because of its contribution to the genetic diversity of the species (McGlaughlin and Friar 2007, p. 329; see Genetics section of the proposed rule (74 FR 44241, August 27, 2009)). Subunit 5A contains physical and biological features that are essential to the conservation of

Ambrosia pumila,

including sandy loam or clay soils located on an upper terrace of a water

source, which provide nutrients, moisture, and periodic flooding presumed necessary for the plant's persistence (PCE 1), and nonnative grassland vegetation, which allows adequate sunlight and airflow for

A. pumila

(PCE 2). The PCEs in this unit may require special management considerations or protection to address threats from nonnative plant species in situations where nonnative species are outcompeting

A. pumila

for resources, human encroachment, utility maintenance activities, and potential development. Please see the Special Management Considerations or Protection section of this rule for a discussion of the threats to

A. pumila

habitat and potential management considerations.

Subunit 5B: Lake Hodges West—Crosby Estates

Subunit 5B is located just west of Lake Hodges in the western portion of central San Diego County, California. This subunit is on and adjacent to the west side of the Crosby National Golf Club. Subunit 5B consists of approximately 113 ac (46 ha) of State or local government owned land, 115 ac (47 ha) of privately owned land for a total of approximately 228 ac (92 ha) (values do not sum due to rounding). This subunit meets the definition of critical habitat for this species because of its contribution to the genetic diversity of the species (McGlaughlin and Friar 2007, p. 329; see Genetics section of the proposed rule (74 FR 44241, August 27, 2009)). Subunit 5B contains physical and biological features that are essential to the conservation of

Ambrosia pumila,

including sandy loam or clay soils located on an upper terrace of a water source, which provide nutrients, moisture, and periodic flooding presumed necessary for the plant's persistence (PCE 1), and nonnative grassland habitat type, which allows adequate sunlight and airflow for

A. pumila

for resources, from human encroachment that may occur in the area, and from golf course maintenance. Please see the Special Management Considerations or Protection section of this rule for a discussion of the threats to

A. pumila

habitat and potential management considerations.

Unit 6: San Diego River Watershed—Mission Trails Regional Park

Unit 6 is located in Mission Trails Regional Park in the City of San Diego. Unit 6 consists of approximately 6 ac (3 ha) of State or local government owned land, and approximately 32 ac (13 ha) of privately owned land, for a total of 38 ac (15 ha) (values do not sum due to rounding). This total does not include a portion of Unit 6 (160 ac (65ha)) that we have excluded from this designation under section 4(b)(2) of the Act (

see

the Exclusions under Section 4(b)(2) of the Act section of this rule). This unit was occupied at the time of listing and remains occupied, and like all other extant occurrences, is essential to the conservation of this species because of its contribution to the genetic diversity of the species (McGlaughlin and Friar 2007, p. 329; see Genetics section of the proposed rule (74 FR 44241, August 27, 2009)). Unit 6 contains physical and biological features that are essential to the conservation of

A. pumila,

including sandy loam or clay soils located on an upper terrace of a water source, which provide nutrients, moisture, and periodic flooding presumed necessary for the plant's persistence (PCE 1), and nonnative grassland habitat type, which allows adequate sunlight and airflow for

A. pumila

for resources, and human encroachment. Please see the Special Management Considerations or Protection section of this rule for a discussion of the threats to

A. pumila

habitat and potential management considerations.

Unit 7: Sweetwater River Watershed

Unit 7 is located in southwestern San Diego County and consists of three subunits containing approximately 146 ac (60 ha) of federally owned land (San Diego National Wildlife Refuge), approximately 13 ac (5 ha) of State or local government owned land, and approximately 57 ac (23 ha) of privately owned land, for a total of approximately 215 ac (87 ha) (values do not sum due to rounding).

Subunit 7A: Jamul Road

Subunit 7A is located southeast of the City of El Cajon at and near junction of Jamul Road and Steele Canyon Road, on the north and south sides of Jamul Road. Subunit 7A consists of approximately 3 ac (1 ha) of State or local government owned land, and approximately 36 ac (15 ha) of privately owned land, for a total of approximately 39 ac (16 ha). No lands in Subunit 7A are conserved or managed for biological resources. This subunit was occupied at the time of listing and remains occupied. This subunit, like all other extant occurrences, is essential to the conservation of this species because of its contribution to the genetic diversity of the species (McGlaughlin and Friar 2007, p. 329; see Genetics section of the proposed rule (74 FR 44241, August 27, 2009)). Subunit 7A contains physical and biological features that are essential to the conservation of

A. pumila,

including sandy loam or clay soils located on an upper terrace of a water source, which provide nutrients, moisture, and periodic flooding presumed necessary for the plant's persistence (PCE 1), and nonnative grassland habitat type, which allows adequate sunlight and airflow for

A. pumila

for resources, alterations of site hydrology, and off-highway vehicle use. Please see the Special Management Considerations or Protection section of this rule for a discussion of the threats to

A. pumila

habitat and potential management considerations.

Subunit 7B: San Diego National Wildlife Refuge (SDNWR)

Subunit 7B is located on the San Diego National Wildlife Refuge, south of Sweetwater River between Rancho San Diego Golf Course and the hills to the south, and on the north and south sides of a dirt trail adjoining the end of Par Four Drive in unincorporated San Diego County. Subunit 7B consists of approximately 118 ac (48 ha) of Federal land owned and managed by the Service, and approximately 15 ac (6 ha) of privately owned land, for a total of approximately 133 ac (54 ha). No private lands in Subunit 7B are conserved or managed for biological resources. This subunit was occupied at the time of listing and, like all other extant occurrences, we also believe this subunit is essential to the conservation of this species because of its contribution to the genetic diversity of the species (McGlaughlin and Friar 2007, p. 329 see Genetics section of the proposed rule (74 FR 44241, August 27, 2009)). Subunit 7B contains physical

and biological features that are essential to the conservation of

A. pumila,

including sandy loam or clay soils located on an upper terrace of a water source, which provide nutrients, moisture, and periodic flooding presumed necessary for the plant's persistence (PCE 1), and nonnative grassland vegetation, which allows adequate sunlight and airflow for

A. pumila

(PCE 2). The PCEs in this subunit may require continued management and protection on federally owned lands to address threats from nonnative plant species in situations where nonnative species are outcompeting

A. pumila

for resources, and human encroachment. Please see the Special Management Considerations or Protection section of this rule for a discussion of the threats to

A. pumila

habitat and potential management considerations.

Subunit 7C: Steele Canyon Bridge

Subunit 7C is located mainly on the east side of State Route 94 on a slope between a concrete-lined ditch and a fence adjacent and parallel to State Route 94, approximately 0.7 mi (1.1 km) southeast of Subunit 7B, in unincorporated San Diego County. A small portion of the subunit is located on the opposite side of State Route 94 just south of Steele Canyon Bridge in a split-rail exclosure. Subunit 7C consists of approximately 28 ac (11 ha) of federally owned land managed by the Service, approximately 10 ac (4 ha) of State or local government owned land, and approximately 6 ac (2 ha) of privately owned land, for a total of approximately 44 ac (18 ha) (values do not sum due to rounding). No private or state/local government owned lands in Subunit 7C are conserved or managed for biological resources. This subunit was occupied at the time of listing and, like all other extant occurrences, we also believe this subunit is essential to the conservation of this species because of its contribution to the genetic diversity of the species (McGlaughlin and Friar 2007, p. 329; see Genetics section of the proposed rule (74 FR 44241, August 27, 2009)). Subunit 7C contains physical and biological features that are essential to the conservation of

Ambrosia

pumila,

including sandy loam or clay soils located on an upper terrace of a water source, which provide nutrients, moisture, and flooding presumed necessary for the plant's persistence (PCE 1), and nonnative grassland vegetation, which allows adequate sunlight and airflow for

A. pumila

for resources, and human encroachment. Please see the Special Management Considerations or Protection section of this rule for a discussion of the threats to

A. pumila

habitat and potential management considerations.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. Decisions by the 5th and 9th Circuit Courts of Appeals have invalidated our definition of “destruction or adverse modification” (50 CFR 402.02) (

see Gifford

Pinchot

Task

Force

Fish

and

Wildlife

Service,

378 F. 3d 1059 (9th Cir 2004) and

Sierra

Club

Fish

and

Wildlife

Service

et al.,

245 F.3d 434, 442F (5th Cir 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the Federal action, the affected critical habitat would remain functional (or retain the current ability for the PCEs to be functionally established) to serve its intended conservation role for the species (Service 2004a, p. 3).

Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us in most cases. As a result of this consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:

(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or designated critical habitat; or

(2) A biological opinion for Federal actions that are likely to adversely affect listed species or designated critical habitat.

An exception to the concurrence process referred to in (1) above occurs in consultations involving National Fire Plan projects on lands managed by the U.S. Bureau of Land Management (BLM) or the U.S. Forest Service (USFS). However, none of the lands we are designating as critical habitat are located on BLM or USFS lands.

If we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species or destroy or adversely modify critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. We define “Reasonable and prudent alternatives” at 50 CFR 402.02 as alternative actions identified during consultation that:

• Can be implemented in a manner consistent with the intended purpose of the action,

• Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,

• Are economically and technologically feasible, and

• Would, in the Director's opinion, avoid jeopardizing the continued existence of the listed species or destroying or adversely modifying its critical habitat.

Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

When we issue a biological opinion concluding that a project is not likely to jeopardize a listed species or adversely modify its critical habitat but may result in incidental take of listed animals, we provide an incidental take statement that specifies the impact of such incidental taking on the species. We then define “Reasonable and Prudent Measures” considered necessary or appropriate to minimize the impact of such taking. Reasonable and prudent measures are binding measures the action agency must implement to receive an exemption to the prohibition against take contained in section 9 of the Act. These reasonable and prudent measures are implemented through specific “Terms and Conditions” that must be followed by the action agency or passed along by the action agency as binding conditions to an applicant. Reasonable and prudent measures, along with the terms and conditions that implement them, cannot alter the basic design, location, scope, duration, or timing of the action under consultation and may involve only minor changes (50 CFR 402.14). The Service may provide the action agency with additional conservation recommendations, which are advisory and not intended to carry binding legal force.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies may sometimes need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.

Federal activities that may affect

Ambrosia

pumila

or its designated critical habitat will require section 7 consultation under the Act. Activities on State, tribal, local, or private lands requiring a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act or a permit under section 10(a)(1)(B) of the Act from the Service) or involving some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency) will also be subject to the section 7 consultation process. Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded, authorized, or permitted, do not require section 7 consultations.

Application of the “Adverse Modification” Standard

The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species, or would retain its current ability for the primary constituent elements to be functionally established. Activities that may destroy or adversely modify critical habitat are those that alter the physical and biological features to an extent that appreciably reduces the conservation value of critical habitat for

Ambrosia pumila.

Generally, the conservation role of the

A. pumila

critical habitat units is to support viable occurrences in appropriate habitat areas.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.

Activities that, when carried out, funded, or authorized by a Federal agency, may adversely affect critical habitat and therefore should result in consultation for

Ambrosia pumila

include, but are not limited to, the following:

(1) Actions that would alter the configuration of the water sources associated with

Ambrosia pumila

habitat or the upper terraces where

A. pumila

habitat is found. Such activities could include, but are not limited to, water impoundment, stream channelization, water diversion, water withdrawal, and development activities. These activities could alter the biological and physical features that provide the appropriate habitat for

A. pumila

by altering or eliminating flooding events that this species may rely on for dispersal, seed germination, and control of competitors; reducing or increasing the availability of groundwater that may result in a shift of habitat type to a community unsuitable for

A. pumila

(shrub- or tree-dominated habitat, which would inhibit exposure to needed sunlight and airflow); or causing increased erosion that could remove soils appropriate for

A. pumila

growth.

(2) Activities that cover or remove soils appropriate for

A. pumila

growth such as development, plowing or grading, or activities that change the characteristics of soils so that

A. pumila

growth is impeded, such as soil compaction due to hiking and off-highway vehicle use.

Exemptions Under Section 4(a)(3) of the Act

No lands meet the criteria for being exempted from the designation of critical habitat for

Ambrosia pumila

pursuant to section 4(a)(3) of the Act.

Exclusions Under Section 4(b)(2) of the Act

Application of Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that the Secretary must designate and revise critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, 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, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the legislative history is clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.

In the following paragraphs we address a number of general issues that are relevant to our analysis under section 4(b)(2) of the Act.

Under section 4(b)(2) of the Act, we may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. In considering whether to exclude a particular area from the designation, we must identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and determine whether the benefits of exclusion outweigh the benefits of inclusion. If based on this analysis, we make this determination, then we can exclude the area only if such exclusion would not result in the extinction of the species.

When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus; the educational benefits of mapping essential habitat for recovery of the listed species; and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat. The designation of critical habitat may strengthen or reinforce some of the provisions in other State and Federal laws, such as the California Environmental Quality Act (CEQA) or the National Environmental Policy Act (NEPA). These laws analyze the potential for projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.

When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in long-term conservation; the continuation, strengthening, or encouragement of partnerships that result in conservation of listed species; or implementation of a management plan that provides equal to or more conservation than a critical habitat designation would provide. Specifically, when evaluating a conservation plan we consider, among other factors:

(1) Whether the plan is complete and provides a benefit for the species by conserving and managing the features

essential for the conservation of the species;

(2) Whether the plan provides conservation strategies and measures consistent with currently accepted principles of conservation biology; and

(3) Whether there is a reasonable expectation that the conservation management strategies and actions will be implemented for the foreseeable future, and effective based on past practices, written guidance, or regulations.

After evaluating the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to determine whether the benefits of exclusion outweigh those of inclusion. If we determine that they do, we then determine whether exclusion would result in extinction. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.

In the case of

Ambrosia pumila,

the areas proposed and ultimately designated as critical habitat do not include any tribal lands or tribal trust resources or DOD lands. However, this designated critical habitat does include some lands covered by HCPs, specifically, the Western Riverside County MSHCP, the City of San Diego MSCP Subarea Plan, and the County of San Diego MSCP Subarea Plan.

The information provided above applies to the following discussions of exclusions under section (4)(b)(2) of the Act.

Ambrosia pumila

is covered under the Western Riverside County MSHCP, the County of San Diego MSCP Subarea Plan, and the City of San Diego MSCP Subarea Plan. After considering the following areas under section 4(b)(2) of the Act, we are exercising our discretion to exclude from critical habitat designation: Subunit 2 within the Western Riverside County MSHCP; a portion of Subunit 5B within the County of San Diego MSCP Subarea Plan area and conserved and managed under the Crosby at Rancho Santa Fe Habitat Management Plan; and a portion of Subunit 6 within the City of San Diego MSCP Subarea Plan. As described in the following exclusion analyses for the three HCPs, we made this determination because we believe that the value of the excluded lands for

A. pumila

conservation will be preserved for the foreseeable future by existing protective actions and they are appropriate for exclusion under the “other relevant factor” provisions of section 4(b)(2) of the Act. We concluded that the benefits of excluding these areas from critical habitat outweigh the benefits of including the areas. With regard to the remaining portions of essential habitat covered by the Western Riverside County MSHCP, the City of San Diego MSCP Subarea Plan, and the County of San Diego MSCP Subarea Plan, we concluded that the benefits of inclusion outweigh the benefits of exclusion; therefore we are not exercising our discretion to exclude these lands from critical habitat designation. Brief descriptions of each plan and lands excluded from critical habitat covered by each plan are described below. The areas where we determined the benefits of exclusion outweigh the benefits of inclusion are listed in Table 3. Additional details on these areas can be found in the proposed critical habitat rule (74 FR 44238, August 27, 2009) and the NOA (75 FR 27690, May 18, 2010).

Table 3—Areas Excluded From Ambrosia Pumila Critical Habitat Designation Under Section 4(b)(2) of the Act

Subunit

Excluded under section 4(b)(2) of the Act

Acres

Hectares

Western Riverside County MSHCP

2. Skunk Hollow

118

County of San Diego MSCP Subarea Plan (The Crosby at Rancho Santa Fe Habitat Management Plan)

5B. Lake Hodges west—Crosby estates

City of San Diego MSCP Plan

6. Mission Trails Regional Park

160

Total

329

133

Values in this table may not sum due to rounding.

Western Riverside County Multiple Species Habitat Conservation Plan (Western Riverside County MSHCP)

We determined that approximately 298 ac (121 ha) of land in Subunits 1A and 1B, Unit 2, and Subunits 3A and 3B that are within the Western Riverside County MSHCP planning area meet the definition of critical habitat under the Act (approximately 9 ac (3 ha) in Subunit 1A are not covered by the Western Riverside County MSHCP as a result of a legal settlement reached between certain landowners and the County of Riverside in 2004 exempting the landowners from the HCP (Murdock Settlement, 2004)). In making our final decision with regard to these lands, we considered several factors including our relationships with participating jurisdictions and other stakeholders, existing consultations, conservation measures and management that are in place on these lands, and impacts to current and future partnerships. Under section 4(b)(2) of the Act, we have determined to exercise our delegated discretion to exclude 118 ac (48 ha) of land within Unit 2 from this final critical habitat designation. We are including 189 ac (76 ha) of land within Subunits 1A, 1B, 3A, and 3B in this critical habitat designation (including approximately 9 ac (3 ha) in Subunit 1A not covered by the Western Riverside County MSHCP). As described in our analysis below, we reached this conclusion by weighing the benefits of exclusion against the benefits of including each area in the final critical habitat designation.

The Western Riverside County MSHCP is a regional, multijurisdictional HCP encompassing approximately 1.26 million ac (510,000 ha) of land in western Riverside County. The Western Riverside County MSHCP addresses 146

listed and unlisted “covered species,” including

Ambrosia

pumila.

The Western Riverside County MSHCP includes a multispecies conservation program designed to minimize and mitigate the expected loss of habitat and associated incidental take of covered species, while allowing development to occur. On June 22, 2004, the Service issued a single incidental take permit (Service 2004b, TE-088609-0) under section 10(a)(1)(B) of the Act to 22 permittees under the Western Riverside County MSHCP to be in effect for a period of 75 years (Service 2004, TE-088609-0). We concluded in our biological opinion (Service 2004b, p. 342) that implementation of the plan, as proposed, was not likely to jeopardize the continued existence of

pumila.

Our determination was based on our conclusion that 62 percent of

pumila

suitable habitat and at least 2 (Nichols Road (Subunit 1B) and Skunk Hollow (Unit 2)) of the 3 extant occurrences known at that time would be protected or remain within the Western Riverside County MSHCP Conservation Area (lands conserved under the Western Riverside County MSHCP). We also noted that the surveys required by the HCP (

see

Narrow Endemic Plant Species survey area discussed below) could result in newly discovered occurrences of

pumila.

These potentially new occurrences would be conserved by being added to the Western Riverside County MSHCP Conservation Area.

The Western Riverside County MSHCP, when fully implemented, will establish approximately 153,000 ac (61,917 ha) of new conservation lands (Additional Reserve Lands) to complement the approximate 347,000 ac (140,426 ha) of preexisting natural and open space areas (Public/Quasi-Public (PQP) lands). These PQP lands include those under ownership of public or quasi-public agencies, primarily the United States Forest Service (USFS) and Bureau of Land Management (BLM), as well as permittee-owned or controlled open-space areas managed by the State of California and Riverside County. Collectively, the Additional Reserve Lands and PQP lands form the overall Western Riverside County MSHCP Conservation Area. The configuration of the 153,000 ac (61,916 ha) of Additional Reserve Lands (ARL) is not mapped or precisely delineated (“hard-lined”) in the Western Riverside County MSHCP. Instead, the ARL are textual descriptions of habitat conservation necessary to meet the conservation goals for all covered species within the bounds of the approximately 310,000-ac (125,453-ha) Criteria Area and is determined as implementation of the Western Riverside County MSHCP takes place.

Three species-specific conservation objectives are included in the Western Riverside County MSHCP for

Ambrosia

pumila.

The first objective is to conserve at least 21,800 ac (8,822 ha) of occupied or suitable habitat for the species. This objective can be attained through acquisition or other dedications of land assembled from within the Criteria Area (

i.e.,

the ARL) or Narrow Endemic Plant Species Survey Area and through coordinated management of existing PQP. We mapped a “Conceptual Reserve Design” that illustrates existing PQP lands and predicts the geographic distribution of the ARL based on our interpretation of the textual descriptions of habitat conservation necessary to meet Western Riverside County MSHCP conservation goals. Our Conceptual Reserve Design is the Service's estimate of one possible future configuration of 153,000 ac (61,916 ha) of ARL in conjunction with the existing PQP lands, including approximately 21,800 ac (8,822 ha) of “suitable”

A. pumila

habitat that will be conserved to meet the goals and objectives of the plan (Service 2004b, p. 73). Preservation and management of approximately 21,800 ac (8,822 ha) of suitable

A. pumila

habitat under the Western Riverside County MSHCP will contribute to conservation and ultimate recovery of this species.

The second species-specific conservation objective included in the Western Riverside County MSHCP for

Ambrosia

pumila

is to include within the Conservation Area at least two of the three occupied locations identified at the time the Western Riverside County MSHCP was permitted.

Ambrosia

pumila

is threatened in the plan area primarily by habitat loss due to urbanization, flood control activities, and nonnative species competition (Service 2004b, pp. 334-342). The Western Riverside County MSHCP is designed to remove or reduce threats to this species as the plan is implemented by placing large blocks of occupied and unoccupied habitat into preservation throughout the Conservation Area. The two areas identified for inclusion in the Conservation Area are the occurrences at the Barry Jones (Skunk Hollow) Wetland Mitigation Bank (in Unit 2), and the occurrence near Temescal Creek at Nichols Road (in Subunit 1B).

The third species-specific conservation objective included in the Western Riverside County MSHCP for

Ambrosia

pumila

is the requirement of surveys for

A. pumila

as part of the project review process for public and private project proposals where suitable habitat is present within a defined Narrow Endemic Plant Species survey area (

see

Narrow Endemic Plant Species Survey Area Map, Figure 6-1 of the Western Riverside County MSHCP, Volume I in Dudek 2003). For locations with positive survey results, 90 percent of those portions of the property that provide long-term conservation value for the species will be avoided; when it is demonstrated the conservation objectives for the species under the HCP are met, avoided areas will be evaluated to determine whether they will be open for development or considered for inclusion into the MSHCP Conservation Area (

see

Additional Survey Needs and Procedures; Western Riverside County MSHCP, Volume 1, section 6.3.2 in Dudek 2003). The Western Riverside County MSHCP anticipated inclusion of a third occurrence, near Temescal Creek east of Lake Street (in Subunit 1A), into the MSHCP Conservation Area in accordance with its Narrow Endemics Policy (Dudek 2003, pp. P-327-P-328). This area has been conserved but is not currently managed to benefit

A. pumila

and its habitat.

Below is a brief analysis of the relative benefits of inclusion and exclusion of Unit 2, which we have exercised our discretion to exclude from critical habitat designation and our analysis of the relative benefits of inclusion and exclusion of Subunits 1A, 1B, 3A and 3B which we have not exercised our discretion to exclude from critical habitat designation.

Benefits of Inclusion—Western Riverside County MSHCP

The principal benefit of including an area in a critical habitat designation is the requirement of Federal agencies to ensure actions they fund, authorize, or carry out are not likely to result in the destruction or adverse modification of any designated critical habitat, the regulatory standard of section 7(a)(2) of the Act under which consultation is completed. Federal agencies must consult with the Service on actions that may affect critical habitat and must avoid destroying or adversely modifying critical habitat. Federal agencies must also consult with us on actions that may affect a listed species and refrain from undertaking actions that are likely to jeopardize the continued existence of such species. The analysis of effects to critical habitat is a separate and different analysis from that of the effects to the species. Therefore, the difference in outcomes of these two analyses represents the regulatory benefit of critical habitat. For some species (including

Ambrosia pumila

), and in some locations, the outcome of these

analyses will be similar, because effects to habitat will often also result in effects to the species. However, the regulatory standard is different, as the jeopardy analysis investigates the action's impact on the survival and recovery of the species, while the adverse modification analysis focuses on the action's effects on the designated habitat's contribution to conservation. This will, in many instances, lead to different results and different regulatory requirements. Thus, critical habitat designations may provide greater benefits to the recovery of a species than would listing alone.

Critical habitat may provide a regulatory benefit for

Ambrosia

pumila

when there is a Federal nexus present for a project that might adversely modify critical habitat. A Federal nexus generally exists where land is federally owned, or where actions proposed on non-Federal lands require a Federal permit or Federal funding. In the absence of a Federal nexus, the regulatory benefit provided through Section 7 consultation under the Act does not exist. Clearly, any activities affecting designated critical habitat on Federal land would trigger a duty to consult under Section 7. In contrast, the potential for a Federal nexus for activities proposed on non-Federal lands varies widely and depends on the particular circumstances of each case. Nevertheless, because the breadth of potential Federal actions that may trigger a duty to consult under Section 7 is quite broad, we cannot say with certainty that future development of, or activities on non-Federal lands will always lack a Federal nexus. However, where there is no discernable Federal nexus on non-Federal lands we propose to designate as critical habitat, we consider the regulatory benefit of designation of those non-Federal lands to be small.

Any protections provided by critical habitat that are redundant with protections already in place on lands proposed for designation also reduce the benefits of inclusion in critical habitat. Protections provided by HCPs or other conservation and management, may prevent the destruction or adverse modification of habitat to the same or greater extent as would the consultation provisions under section 7(a) of the Act for critical habitat.

None of the land in Unit 2 is Federal land. The majority of Unit 2 is within the Barry Jones (Skunk Hollow) Wetland Mitigation Bank on privately owned lands owned and managed by Center for Natural Lands Management (CNLM) and protected by a conservation easement held by the California Department of Fish and Game. Two smaller portions of this unit are adjacent to the Barry Jones (Skunk Hollow) Wetland Mitigation Bank, one to the east on Johnson Ranch and Metropolitan Water District lands, and the other to the west on lands conserved as part of the Rancho Bella Vista HCP. All land in Unit 2 is conserved under conservation easement and actively managed by CNLM in accordance with the Western Riverside County MSHCP. We consider the likelihood of a Federal nexus for activities occurring on lands in Unit 2 to be remote. It is possible that the Army Corps of Engineers may take jurisdiction over portions of Unit 2 if a project were to occur in that area; however, the probability of project impacts in Unit 2 is slight because the area is conserved and managed and thus protected from direct development impacts. Because Unit 2 is already permanently conserved and managed to benefit

Ambrosia pumila,

the regulatory benefit of designating this area as critical habitat would be redundant with the protections already in place. Because the existence of a future Federal nexus in Unit 2 is remote and the protections afforded by designation would be redundant with protections already in place, we believe the regulatory benefit of designation of Unit 2 is negligible and not significant.

Similar to Unit 2, none of the land in Units 1 and 3 is federally owned, and we consider the likelihood of a future Federal nexus in Units 1 and 3B to be remote. There is a potential that Federal funds may be applied to future projects related to the San Diego Aqueduct in Subunit 3A (

see

Comment 14 in the Summary of Comments and Recommendations section below); however the probability of a project with a Federal nexus occurring in Subunit 3A is uncertain. The absence of a discernable Federal nexus in Unit 1 and Subunit 3B, and the uncertainty regarding a future Federal nexus in Subunit 3A reduce the potential regulatory benefits of designation of these areas.

In contrast to Unit 2, Subunits 1B, 3A, and 3B are not currently protected or managed under the Western Riverside MSHCP for the benefit of

A. pumila

and its essential habitat. Subunit 1A is largely conserved, but it is not currently managed to protect the species and its habitat.

As summarized above, under the Western Riverside County MSHCP on lands within the Narrow Endemic Plant Species survey area with positive survey results for

Ambrosia

pumila,

impacts to 90 percent of portions of the property that provide long-term conservation value for the species are to be avoided until it is demonstrated that the conservation objectives for the species have been met, at which time avoidance is no longer be required (

see

Protection of Narrow Endemic Plant Species; Western Riverside County MSHCP, Volume 1, section 6.1.3, in Dudek 2003). Also, projects proposed in areas within the Western Riverside County MSHCP Criteria Area (Criteria Area) are to be implemented through the Joint Project Review Process to ensure that the requirements of the Western Riverside County MSHCP permit and the Implementing Agreement are properly met and are protecting essential habitat for

A. pumila

(Western Riverside County MSHCP, Volume 1, section 6.6.2 in Dudek 2003, p. 82).

Portions of Subunits 1A, 1B, and 3B are within the Narrow Endemic Plant Species Survey Area or the Criteria Area under the Western Riverside County MSHCP, and we anticipate that these areas will eventually be protected and managed under the plan. As noted above, a large portion of Subunit 1A is already conserved, but it is not actively managed for the benefit of

Ambrosia pumila.

Because none of these areas are both conserved and managed, they remain vulnerable to threats from nonnative species, human encroachment and development related impacts as discussed above in the Special Management Considerations or Protection section. We recognize that the regulatory benefit of designating Subunits 1A, 1B, and 3B is partially redundant with existing and anticipated protection (conservation) and management of these areas under the Western Riverside County MSHCP; however because such protection is not yet fully in place, we believe there is some regulatory benefit to designation of these areas. Subunit 3A is neither within the Narrow Endemic Plant Species survey area or the Criteria Area and is not targeted for conservation and management under the Western Riverside County MSHCP. As a result, the regulatory benefit provided by the designation of critical habitat within Subunit 3A would not be redundant with conservation measures outlined in the plan. We conclude that the regulatory benefit of designating Subunits 1A, 1B and 3B is partially redundant with the anticipated protection of these areas under the Western Riverside County MSHCP, while the regulatory benefit of designating Subunit 3A would not be redundant with conservation provided under the plan. However, because the likelihood of a future Federal nexus on any of these lands is remote we consider

the regulatory benefit of designation of the entirety of Units 1 and 3 to be small and not significant.

Designating critical habitat also can be beneficial because the process of proposing critical habitat provides the opportunity for peer review and public comment on lands we propose to designate as critical habitat, our criteria to assess those lands, potential impacts from the proposal, and information on the taxon itself. We believe the designation of critical habitat may generally provide previously unavailable information to the public. Public education regarding the potential conservation value of an area may also help focus conservation and management efforts on areas of high conservation value for certain species. Information about

Ambrosia

pumila

and its habitat that reaches a wide audience, including parties concerned about and engaged in conservation activities, is valuable because the public may not be aware of documented (or undocumented)

A. pumila

occurrences that have not been conserved or are not being managed.

Because Unit 2 is already permanently conserved and actively managed for the benefit of

Ambrosia pumila,

we believe there is little educational benefit to designation of this area. The education benefit of designation is somewhat lower for Subunits 1A and 1B because educational information regarding the importance of the

pumila

occurrences in these two areas to the conservation of the species has been presented to the public during development and implementation of the Western Riverside County MSHCP. However, this critical habitat rule provides more specific information regarding the entire habitat area in Subunits 1A and 1B (not just the above-ground portions of the occurrences) that we consider essential to the conservation of the species. Therefore, we believe the education benefit to including Subunits 1A and 1B in this designation is still significant.

Subunits 3A and 3B were unknown at the time the Western Riverside County MSHCP was finalized, and therefore educational information regarding the

Ambrosia pumila

occurrences in Subunits 3A and 3B was not presented to the public during development and implementation of the Western Riverside County MSHCP. Designating as critical habitat for

Ambrosia pumila

Subunits 3A and 3B will identify these specific areas as essential for the conservation and recovery of

Ambrosia

pumila

and in doing so, provide an educational component that is a significant benefit to the conservation of this species. The educational information contained in this rule provides information that can be used by the public to learn about

A. pumila

and its essential habitat in Subunits 3A and 3B and that can refine the broader conservation goals for

A. pumila

under the Western Riverside County MSHCP by focusing conservation on the specific areas essential for the recovery of the species.

The designation of

Ambrosia

pumila

critical habitat may also strengthen or reinforce some of the provisions in other State and Federal laws, such as the California Environmental Quality Act (CEQA) or the National Environmental Policy Act (NEPA). These laws analyze the potential for projects to significantly affect the environment. In Riverside County, the additional protections associated with critical habitat may be beneficial in areas not currently conserved. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws. In the case of CEQA, this could be a benefit, since CEQA may require additional review of projects that may affect critical habitat and protection of essential habitat if its destruction would constitute a significant environmental effect. However, this benefit is a minor benefit in the case of NEPA, because NEPA does not require project proponents to protect sensitive habitat. The potential ancillary benefits under other laws of critical habitat designation would be higher in Subunits 1A, 1B, 3A, and 3B where the species and its habitat are not currently conserved. The benefits would be negligible in Unit 2 because

pumila

and its essential habitat are protected and managed.

In summary, we believe that the regulatory benefit of designating critical habitat under section 7(a) of the Act is small in Subunits 1A, 1B, and 3B because the likelihood of a future Federal nexus in these areas is remote. There is a higher potential for a Federal nexus in Subunit 3A, but it is still uncertain. Overall, we believe the regulatory benefit of designation of Subunits 1A, 1B, 3A and 3B is not significant. We believe that the educational benefit of designation is significant in Subunits 1A, 1B, 3A, and 3B because these areas are not conserved and managed and designation may help focus conservation efforts for this species under the Western Riverside County MSHCP on these specific essential habitat areas. There are also potential ancillary benefits under other laws that would result from designation of Subunits 1A, 1B, 3A, and 3B. In Unit 2, which is conserved and managed, we believe the benefits of critical habitat designation are not significant. The regulatory benefit of designation in Unit 2 is likely redundant with protection provided by the conservation and management of the area, and because this area is already conserved and managed, the public education and ancillary benefits are also insignificant in Unit 2. We conclude that among lands proposed as critical habitat that are covered by the Western Riverside County MSHCP, the educational benefit of designation in Subunits 1A, 1B, 3A, and 3B is significant, and the regulatory and ancillary benefits of designating these areas are small and not significant. The regulatory, educational and ancillary benefits of designating Unit 2 as critical habitat are negligible.

Benefits of Exclusion—Western Riverside County MSHCP

We believe benefits could be realized by forgoing designation of critical habitat for

Ambrosia

pumila

on lands covered by the Western Riverside County MSHCP including:

(1) Continuance and strengthening of our effective working relationships with all Western Riverside County MSHCP jurisdictions and stakeholders to promote conservation of

Ambrosia pumila,

its habitat, and 145 other species covered by the HCP and their habitat;

(2) Allowance for continued meaningful collaboration and cooperation in working toward protecting and recovering this species and the many other species covered by the HCP, including conservation benefits that might not otherwise occur;

(3) Encouragement for local jurisdictions to fully participate in the Western Riverside County MSHCP; and

(4) Encouragement of additional HCP and other conservation plan development in the future on other private lands for this and other federally listed and sensitive species, including incorporation of protections for plant species which is voluntary because the Act does not prohibit take of plant species.

The Western Riverside County MSHCP provides substantial protection and management for

Ambrosia

pumila

and the physical and biological features essential to the conservation of the species, and addresses conservation issues from a coordinated, integrated perspective rather than a piecemeal, project-by-project approach (as would occur under sections 7 of the Act or smaller HCPs), thus resulting in coordinated landscape-scale

conservation that can contribute to genetic diversity by preserving covered species populations, habitat, and interconnected linkage areas that support recovery of

Ambrosia pumila

and other listed species. It is important that we encourage participation in such plans and encourage voluntary coverage of listed plant species in such plans. Additionally, many landowners perceive critical habitat as an unfair and unnecessary regulatory burden given the expense and time involved in developing and implementing complex regional and jurisdiction-wide HCPs, such as the Western Riverside County MSHCP. Exclusion of Western Riverside County MSHCP lands would help preserve the partnerships we developed with the County of Riverside and other local jurisdictions in the development of the HCP, and foster future partnerships and development of future HCPs, and in particular HCPs that include protections for listed plants, such as

pumila.

In summary, we believe excluding land covered by the Western Riverside County MSHCP from critical habitat could provide the significant benefit of maintaining existing regional HCP partnerships and fostering new ones.

Weighing Benefits of Exclusion Against Benefits of Inclusion—Western Riverside County MSHCP

We reviewed and evaluated the benefits of inclusion and the benefits of exclusion for all lands owned by or under the jurisdiction of Western Riverside County MSHCP permittees as critical habitat for

Ambrosia

pumila.

The benefits of including conserved and managed lands in the critical habitat designation are small. All of the approximately 118 ac (48 ha) of land in Unit 2 at the Barry Jones (Skunk Hollow) Wetland Mitigation Bank are already conserved and managed. Therefore we do not believe critical habitat designation for

A. pumila

will provide significant regulatory, educational or ancillary benefits for this area. In contrast to Unit 2, the designation as critical habitat of essential habitat for

Ambrosia pumila

in Subunits 1A, 1B, 3A, and 3B will provide a significant educational benefit and may also result in small regulatory and ancillary benefits for

pumila

and its essential habitat. None of these subunits are currently both conserved and managed to benefit

pumila

(a large portion of Subunit 1A is conserved, but not actively managed), the broad conservation goals for this species under the Western Riverside County MSHCP do not explicitly require and assure protection of the specific lands included in Subunits 1A, 1B, and 3B, and the plan does not identify the lands in Subunit 3A for conservation. Therefore designation of these units will provide a significant educational benefit by focusing attention on the specific lands within Western Riverside County MSHCP that are essential for the species' recovery so that conservation efforts are directed toward those areas. We also anticipate a potential regulatory benefit from designation in the unlikely circumstance that a Federal nexus exists in connection with activities on these lands and some ancillary benefit from other laws such as CEQA and NEPA from designating these areas as critical habitat.

Excluding Subunits 1A, 1B, Unit 2, and Subunits 3A and 3B from critical habitat designation will further our existing partnerships with permittees under the Western Riverside County MSHCP and encourage future voluntary conservation efforts for this species by relieving landowners of the any additional regulatory burden stemming from designation. We consider this a significant benefit of excluding these lands.

In summary, we find that excluding from critical habitat areas that are receiving long-term conservation and management for the purpose of protecting

Ambrosia pumila

(Unit 2) will preserve our partnership with the County of Riverside and other permittees in the Western Riverside County MSHCP and encourage the conservation of lands associated with development and implementation of future HCPs. These partnership benefits are significant and outweigh the small potential regulatory, educational, and ancillary benefits of including Unit 2 in critical habitat for

A. pumila.

We find that including lands as critical habitat that are not yet receiving long-term conservation and management (Subunits 1A, 1B, 3A, and 3B) will provide additional regulatory protection under section 7(a) of the Act if there is a Federal nexus, and will provide a significant educational benefit by focusing conservation efforts by the Western Riverside County MSHCP permittees on conservation and management of these specific essential habitat areas for

A. pumila

and educating the public about importance of these areas for the conservation of this species. Designation may also result in some ancillary benefits under other laws. Therefore, designating these areas as critical habitat for

A. pumila

will provide significant educational as well as some regulatory and ancillary benefits to the species. While we acknowledge that excluding these areas under section 4(b)(2) of the Act would provide a significant benefit to the partnership that we have with the County of Riverside and other permittees under the Western Riverside MSHCP, we believe that the significant educational along with the potential regulatory and ancillary benefits to conservation of the species and its essential habitat in Subunits 1A, 1B, 3A, and 3B of including these lands as critical habitat outweighs the benefit of exclusion. Therefore we have not exercised our delegated discretion to exclude these areas.

Exclusion Will Not Result in Extinction of the Species—Unit 2, Western Riverside County MSHCP

We determined that exclusion of 118 ac (48 ha) of land in Unit 2 within the Western Riverside County MSHCP planning area from the final critical habitat designation for

Ambrosia pumila

will not result in extinction of the species. This area is permanently conserved and managed to provide a benefit to

A. pumila

and its habitat. The jeopardy standard of section 7 of the Act provides assurances the species will not go extinct as a result of exclusion from critical habitat designation where habitat is occupied by

A. pumila

or other federally listed species. Therefore, based on the above discussion, we have determined to exercise our delegated discretion to exclude approximately 118 ac (48 ha) of land in Unit 2 owned by or under the jurisdiction of Western Riverside County MSHCP permittees from this critical habitat designation.

San Diego Multiple Species Conservation Program (MSCP)—City and County of San Diego MSCP Subarea Plans

We determined that approximately 207 ac (84 ha) of habitat in Subunit 5A and Unit 6 within the City of San Diego MSCP Subarea Plan, and approximately 488 ac (198 ha) of habitat in Subunits 5B, 7A, 7B, and 7C within the County of San Diego MSCP Subarea Plan meet the definition of

Ambrosia

pumila

critical habitat under the Act. In making our decision with regard to designating lands within these two subarea plans as critical habitat, we considered several factors, including our relationship with the participating MSCP jurisdictions, our relationship with other MSCP stakeholders, non-covered activities, existing consultations, conservation measures in place that benefit

A. pumila,

and impacts to current and future partnerships. We recognize that

A. pumila

conservation efforts required under the City and County of San Diego MSCP Subarea Plans will continue regardless of whether covered areas are

designated as critical habitat. Under section 4(b)(2) of the Act, we have decided to exercise our delegated discretion to exclude approximately 160 ac (65 ha) of non-Federal land in Unit 6 covered by the City of San Diego MSCP Subarea Plan, and approximately 52 ac (21 ha) of non-Federal land in Subunit 5B covered by the County of San Diego MSCP Subarea Plan from this critical habitat designation. The remaining approximately 228 ac (92 ha) of land in Subunit 5B in the County of San Diego MSCP Subarea Plan area and the remaining 38 ac (15 ha) of land covered by the City of San Diego MSCP Subarea Plan in Unit 6, and all lands covered by the City of San Diego MSCP Subarea Plan in Subunit 5A (9 ac (4 ha)), and all lands covered by the County of San Diego MSCP Subarea Plan in Subunits 7A, 7B, and 7C (215 ac (87 ha)) are being designated as critical habitat for

A. pumila.

The MSCP is a subregional HCP made up of several subarea plans that has been in place for more than a decade. The subregional plan area encompasses approximately 582,243 ac (235,626 ha) (MSCP 1998, pp. 2-1, and 4-2 to 4-4) and provides for conservation of 85 federally listed and sensitive species (“covered species”) through the existing preserve lands and establishment and management of approximately 171,920 ac (69,574 ha) of preserve lands within the Multi-Habitat Planning Area (MHPA) (City and County) and Pre-Approved Mitigation Areas (PAMA) (County of San Diego). The MSCP was developed in support of applications for incidental take permits for several federally listed species by 12 participating jurisdictions and included many other stakeholders in southwestern San Diego County. Under the umbrella of the MSCP, each of the 12 participating jurisdictions is required to prepare a subarea plan that implements the goals of the MSCP within that particular jurisdiction.

Ambrosia

pumila

was evaluated in the MSCP subregional plan, the City of San Diego MSCP Subarea Plan, and the County of San Diego MSCP Subarea Plan.

Upon completion of preserve assembly, approximately 171,920 ac (69,574 ha) of the 582,243 ac (235,626 ha) MSCP plan area will be preserved (MSCP 1998, pp. 2-1 and 4-2 to 4-4). The MSCP identifies areas where mitigation activities should be focused to assemble its preserve areas (

i.e.,

MHPA and PAMA). Those areas of the MSCP preserve that are already conserved, as well as those areas that are designated for inclusion in the preserve under the plan, are referred to as the “preserve area” in this critical habitat designation. When the preserve is completed, the public sector (

i.e.,

Federal, State, and local government, and general public) will have contributed 108,750 ac (44,010 ha) (63 percent) to the preserve, of which 81,750 ac (33,083 ha) (48 percent) was existing public land when the MSCP was established and 27,000 ac (10,927 ha) (16 percent) will have been acquired. At completion, the private sector will have contributed 63,170 ac (25,564 ha) (37 percent) to the preserve as part of the development process, either through avoidance of impacts or as compensatory mitigation for impacts to biological resources outside the preserve. Currently and in the future, Federal and State governments, local jurisdictions and special districts, and managers of privately owned lands will manage and monitor their lands in the preserve for species and habitat protection (MSCP 1998, pp. 2-1 and 4-2 to 4-4).

Private lands within the MHPA (City and County of San Diego) and PAMA (County of San Diego) are subject to special restrictions on development, and lands that are dedicated to the preserve must be permanently protected and managed to conserve the covered species. Public lands owned by the cities, county, State of California, and the Federal Government that are identified for conservation under the MSCP must also be protected and permanently managed to conserve the covered species. Numerous processes are incorporated into the MSCP that allow Service oversight of the MSCP implementation. For example, the MSCP imposes annual reporting requirements, provides for Service review and approval of proposed subarea plan amendments and preserve boundary adjustments, and for Service review and comment on projects during CEQA review process. We also chair the MSCP Habitat Monitoring Subcommittee (MSCP 1998, pp. 5-11 to 5-23). Each MSCP subarea plan must account annually for the progress it is making in assembling conservation areas and show that preserve assembly is in rough step with the development allowed in each jurisdiction. We receive annual reports that detail the habitat acreage lost and conserved within the subareas by project and cumulatively. This accounting process ensures habitat conservation proceeds in rough proportion to habitat loss and in compliance with the MSCP subarea plans and the plans' associated implementing agreements.

The City of San Diego MSCP Subarea Plan and the County of San Diego MSCP Subarea Plan contain requirements to monitor and adaptively manage

Ambrosia pumila

habitats and provide for the conservation of this species. The framework and area-specific management plans are required to be comprehensive and address a broad range of management needs at the preserve and species levels intended to reduce the threats to covered species and thereby contribute to recovery. These plans are to 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 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, p. 49-97).

City of San Diego MSCP Subarea Plan

In addition to the protections described above, the City of San Diego MSCP Subarea Plan requires preservation of over 90 percent of the occurrence of

Ambrosia pumila

at Mission Trails Regional Park, additional impact avoidance and other measures required under the MSCP narrow endemic species policy, and area-specific management directives designed to maintain long-term survival in the planning area (Service 1997, pp. 104-105; Dudek 2000, p. 28). Under the City of San Diego MSCP Subarea Plan, impacts to narrow endemic plants, including

A. pumila,

inside the MHPA will be avoided, and outside the MHPA will be protected as appropriate by management, enhancement (for example, removing nonnative species), restoration, or transplantation to areas identified for preservation (City of San Diego 1997, pp. 105-106; Service 1997, p. 15). These measures help protect

Ambrosia pumila,

whether located on lands targeted for preserve status within the MHPA or located outside of the MHPA in the City of San Diego MSCP Subarea Plan area. Within the MHPA, the narrow endemic policy for the City of San Diego MSCP Subarea Plan requires

in situ

conservation of

A. pumila

or mitigation to ameliorate any habitat loss.

Below is a brief analysis of the benefits of inclusion and exclusion of a portion of Unit 6 which we have

exercised our delegated discretion to exclude from critical habitat designation under section 4(b)(2) of the Act and our analysis of the relative benefits of inclusion and exclusion of the remaining portion of Unit 6 and the portions of Subunit 5A covered under the City of San Diego MSCP Subarea Plan which we have not exercised our delegated discretion to exclude from critical habitat designation.

Benefits of Inclusion—City of San Diego MSCP Subarea Plan

As discussed above in our section 4(b)(2) analysis of lands within the Western Riverside County MSHCP, the principal benefit of including an area in a critical habitat designation is the requirement of Federal agencies to ensure actions they fund, authorize, or carry out are not likely to result in the destruction or adverse modification of any designated critical habitat, the regulatory standard of section 7(a)(2) of the Act under which consultation is completed. Federal agencies must consult with the Service on actions that may affect critical habitat and must avoid destroying or adversely modifying critical habitat. Federal agencies must also consult with us on actions that may affect a listed species and refrain from undertaking actions that are likely to jeopardize the continued existence of such species. The analysis of effects to critical habitat is a separate and different analysis from that of the effects to the species. Therefore, the difference in outcomes of these two analyses represents the regulatory benefit of critical habitat. For some species (including

Ambrosia pumila

), and in some locations, the outcome of these analyses will be similar, because effects to habitat will often also result in effects to the species. However, the regulatory standard is different, as the jeopardy analysis investigates the action's impact to survival and recovery of the species, while the adverse modification analysis investigates the action's effects to the designated habitat's contribution to conservation. This will, in many instances, lead to different results and different regulatory requirements. Thus, critical habitat designations may provide greater benefits to the recovery of a species than would listing alone.

Critical habitat may provide a regulatory benefit for

Ambrosia pumila

when there is a Federal nexus present for a project that might adversely modify critical habitat. A Federal nexus generally exists where land is federally owned, or where actions proposed on non-Federal lands require a Federal permit or Federal funding. In the absence of a Federal nexus, the regulatory benefit provided through Section 7 consultation under the Act does not exist. Clearly, any activities affecting designated critical habitat on Federal land would trigger a duty to consult under Section 7. In contrast, the potential of a Federal nexus for activities proposed on non-Federal lands varies widely and depends on the particular circumstances of each case. Nevertheless, because the breadth of potential Federal actions that may trigger a duty to consult under Section 7 is quite broad, we cannot say with certainty that future development of, or activities on non-Federal lands will always lack a Federal nexus. However where there is no discernable Federal nexus on non-Federal lands we propose to designate as critical habitat, we consider the regulatory benefit of designation of those non-Federal lands to be small.

Any protections provided by critical habitat that are redundant with protections already in place also reduce the benefits of inclusion in critical habitat. Other protections, such as may be provided by HCPs or conservation and management, may prevent the destruction or adverse modification of habitat to the same or greater extent as would the consultation provisions under section 7(a) of the Act for critical habitat.

None of the land in Subunit 5A or Unit 6 is federally owned. In Subunit 5A, which lies adjacent to Interstate 15, there is the potential of Federal funding for future projects related to the interstate (

see

Comment 14 in the Summary of Comments and Recommendations section below). However the probability of a project with a Federal nexus occurring in Subunit 5A is uncertain. We are not aware of any current or potential future Federal nexus on the lands in Unit 6.

A portion of Unit 6, 160 ac (65 ha) lies within the Mission Trails Regional Park and is conserved and managed in accordance with the City of San Diego MSCP Subarea Plan and the City of San Diego Mission Trails Regional Park San Diego Ambrosia Management Plan (Dudek 2000), which includes ongoing monitoring (City of San Diego 2000, 2001, 2003, 2006, and 2008b) and management, including building and maintaining fencing and rerouting or closing trails to protect plants (Dudek 2000, pp. 29-30). Because this 160 ac (65 ha) portion of Unit 6 is already permanently conserved and managed to benefit

Ambrosia pumila,

we believe the regulatory benefit of designating this area as critical habitat is redundant with the protections already in place. As noted above, there is also little likelihood of a future Federal nexus in the conserved portion of Unit 6. The lack of a discernable Federal nexus combined with the redundancy of Federal protections afforded by designation with those already in place in this area, render the regulatory benefit of designating the conserved portion of Unit 6 negligible and insignificant.

In contrast to the 160 ac (65 ha) conserved and managed portion of Unit 6, neither the remaining portion of Unit 6 nor Subunit 5A is currently conserved and managed under the City of San Diego MSCP Subarea Plan.

As discussed above, the City of San Diego MSCP Subarea Plan provides for protection of

Ambrosia pumila

habitat considered necessary for survival and recovery of the species. Areas that we have identified as essential for the conservation of

A. pumila

(portion of Subunit 5A and Unit 6) that occur with the MHPA are targeted for conservation under the City of San Diego MSCP Subarea Plan, and as noted above, a 160 ac (65 ha) portion of Unit 6 is already conserved and managed. Also, under the City of San Diego MSCP Subarea Plan, impacts to narrow endemic plants, including

A. pumila,

inside the MHPA must be avoided. Outside of the MHPA

pumila

may be afforded protection as appropriate by management, enhancement (such as removing nonnative species), or restoration (City of San Diego 1997, pp. 105-106; Service 1997, p. 15).

The portion of Unit 6 that is not conserved and a portion of Subunit 5A are both within the MHPA, and we anticipate that these areas may eventually be conserved under the City of San Diego MSCP Subarea Plan. However, the areas are not currently conserved or managed and remain more vulnerable to threats, including competition from non-native plant species and human encroachment as discussed above in the Special Management Considerations or Protection section. That portion of Subunit 5A within the City of San Diego MSCP Subarea Plan area, but outside of the MHPA, will also be protected to the extent practicable under the City of San Diego MSCP Subarea Plan, but the plan allows for the transplantation of

Ambrosia pumila

individuals to areas identified for preservation under the subarea plan's narrow endemic policy if impacts outside of the MHPA cannot be avoided. We recognize that the regulatory benefit of designating Subunit 5A, and in particular that portion of Subunit 5A within the MHPA, and the currently unconserved portion of Unit 6 is partially redundant

with the anticipated conservation and management of these areas under the City of San Diego MSCP Subarea Plan. However, because such protections are not yet in place, and are not certain to occur, we believe there is some regulatory benefit to designation of these areas notwithstanding the existing and anticipated protections under the City of San Diego MSCP Subarea Plan. Because the likelihood of a future Federal nexus on Subunit 5A is uncertain and on Unit 6 is remote, we believe this regulatory benefit is small and not significant.

Designating critical habitat also can be beneficial because the process of proposing critical habitat provides the opportunity for peer review and public comment on lands we propose to designate as critical habitat, our criteria to assess those lands, potential impacts from the proposal and information on the taxon itself. We believe the designation of critical habitat may generally provide previously unavailable information to the public. Public education regarding the potential conservation value of an area may also help focus conservation and management efforts on areas of high conservation value for certain species. Information about

Ambrosia

pumila

and its habitat that reaches a wide audience, including parties concerned about and engaged in conservation activities, is also valuable because the public may not be aware of documented (or undocumented)

A. pumila

occurrences that have not been conserved or are not being managed.

Because the 160 ac (65 ha) portion of Unit 6 is already permanently conserved and is actively managed for the benefit of

Ambrosia pumila,

there is little educational benefit to designation of this area.

Designating as critical habitat for

Ambrosia pumila

Subunit 5A and the portions of Unit 6 that are not conserved will identify areas essential for the conservation and recovery of

pumila

and in doing so, provide an educational component that is a significant benefit to the conservation of

A. pumila.

The educational information contained in this rule provides information that can be used by the public to learn about

A. pumila

and its essential habitat in the currently unconserved portion of Unit 6 and in Subunit 5A and that can refine the broader conservation goals for

A. pumila

under the City of San Diego MSCP Subarea Plan by focusing conservation on the specific areas essential for the recovery of the species.

The designation of

Ambrosia

pumila

critical habitat may also strengthen or reinforce some of the provisions in other State and Federal laws, such as CEQA or NEPA. These laws analyze the potential for projects to significantly affect the environment. In the City of San Diego, the additional protections associated with critical habitat would be beneficial in areas not currently conserved. Critical habitat signals the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws. In the case of CEQA, this could be a benefit, since CEQA may require protection of essential habitat if its destruction would constitute a significant environmental effect. However, this benefit is a minor benefit in the case of NEPA, because NEPA does not require project proponents to protect sensitive habitat. The potential ancillary benefits under other laws of critical habitat designation would be higher in the currently unconserved portion of Unit 6 and in Subunit 5A because

A. pumila

and its habitat are not protected and managed in these areas. The ancillary benefits of designation would be negligible in the 160 ac (65 ha) conserved portion of Unit 6 because the species and its essential habitat in that area are protected and managed.

In summary, we believe that the regulatory benefit of designating critical habitat under section 7(a) of the Act is small in Subunit 5A and in the portion of Unit 6 that is not conserved and managed. The likelihood of a future Federal nexus in the unconserved portion of Unit 6 is remote; there is a higher potential for a Federal nexus in Subunit 5A, but it is still uncertain. While the regulatory benefit of designation in these areas is only partially redundant with existing protections for

Ambrosia pumila

provided under the City of San Diego MSCP Subarea Plan, the regulatory benefit is lower because of the uncertainty of a future Federal nexus for activities that could adversely affect essential habitat for

A. pumila

on these lands. We believe that the regulatory benefit of designation in Subunit 5A and in the unconserved and unmanaged portion of Unit 6 is not significant. We consider the educational benefit of designation of Unit 5A and the unconserved and unmanaged portion of Unit 6 to be significant because designation will help focus conservation efforts for this species under the City of San Diego MSCP Subarea Plan on these specific essential habitat areas and educate the public about the importance of these areas for the conservation of this species. There are also potential ancillary benefits under other laws that would result from designation of Subunit 5A and the portion of Unit 6 that is not conserved or managed. In the 160-ac (65-ha) portion of Unit 6 that is conserved and managed, we believe the benefits of critical habitat designation are not significant. The regulatory benefit of designation in this area is redundant with protection provided by the conservation and management of the area, and because this area is already conserved and managed, the public education and ancillary benefits are also insignificant. We conclude that among lands proposed as critical habitat that are covered by the City of San Diego MSCP Subarea Plan, the educational benefit of designation of Subunit 5A and the portion of Unit 6 that is not conserved and managed is significant, and the regulatory and ancillary benefits of designating these areas are small and not significant. The regulatory, educational and ancillary benefits of designating the 160 ac (65-ha) conserved portion of Unit 6 as critical habitat are negligible.

Benefits of Exclusion—City of San Diego MSCP Subarea Plan

We believe benefits would be realized by forgoing designation of critical habitat for

Ambrosia

pumila

on lands covered by the City of San Diego MSCP Subarea Plan including:

(1) Continuance and strengthening of our effective working relationships with all MSCP jurisdictions and stakeholders to promote conservation of

Ambrosia

pumila

and its habitat;

(2) Allowance for continued meaningful collaboration and cooperation in working toward protecting and recovering this species and the many other species covered by the Subarea plan, including conservation benefits that might not otherwise occur;

(3) Encouragement for local jurisdictions to fully participate in the MSCP; and

The City of San Diego MSCP Subarea Plan provides substantial protection and management for

Ambrosia

pumila

occur under sections 7 and 9 of the Act or smaller HCPs); therefore, it is important that we encourage participation in such plans and encourage voluntary coverage of listed plant species in such plans. Many landowners perceive critical habitat as an unfair and unnecessary regulatory burden given the expense and time involved in developing and implementing complex regional and jurisdiction-wide HCPs, such as the City of San Diego MSCP Subarea Plan. Exclusion of the City of San Diego MSCP Subarea Plan lands from critical habitat would help preserve the partnerships we developed with the City of San Diego in the development of the MSCP and the City of San Diego MSCP Subarea Plan, and foster future partnerships and development of future HCPs, and in particular HCPs that include protections for listed plants, such as

pumila.

In summary, we believe excluding land covered by the City of San Diego MSCP Subarea Plan from critical habitat will provide the significant benefit of maintaining existing regional HCP partnerships and fostering new ones.

Weighing Benefits of Exclusion Against Benefits of Inclusion—City of San Diego MSCP Subarea Plan

We reviewed and evaluated the benefits of inclusion and benefits of exclusion for all lands within the City of San Diego MSCP Subarea Plan (approximately 207 ac (84 ha)) as critical habitat for

Ambrosia

pumila.

The benefits of including conserved and managed lands in the critical habitat designation are small. Approximately 160 ac (65 ha) of land in Unit 6 are conserved and managed. We do not believe critical habitat designation for

A. pumila

will provide significant regulatory, educational or ancillary benefits for this area. In contrast, the designation as critical habitat of essential habitat for

A. pumila

in Subunit 5A and the unconserved portion of Unit 6 will provide a significant educational benefit and may provide some regulatory and ancillary benefits for the species and its habitat. Neither of these areas is currently conserved and managed to benefit

A. pumila.

Therefore designation of these areas will provide a significant educational benefit by focusing conservation efforts under the City of San Diego MSCP Subarea Plan on habitat for

A. pumila,

both within and outside the MHPA, that is essential for the recovery of the species. We also anticipate some regulatory benefit from designation of Subunit 5A and the unconserved portion of Unit 6 in the unlikely circumstance that a Federal nexus exists in connection with activities on these lands and some ancillary benefit from other laws such as CEQA and NEPA.

Excluding the portion of Subunit 5A covered under the City of San Diego MSCP Subarea Plan and all of Unit 6 from critical habitat designation will further our existing partnerships with permittees under the City of San Diego MSCP Subarea Plan and encourage future voluntary conservation efforts for this species by relieving landowners of any additional regulatory burden stemming from designation. We consider this a significant benefit of excluding these lands.

In summary, we find that the benefits of excluding lands from critical habitat that are receiving long-term conservation and management for the purpose of protecting

Ambrosia pumila

(160 ac (65 ha) in Unit 6) will preserve our partnership with the City of San Diego and other permittees of the MSCP and encourage the conservation of lands associated with development and implementation of future HCPs. These partnership benefits are significant and outweigh the small potential regulatory, educational, and ancillary benefits of including those lands as critical habitat for

A. pumila.

We find that including lands as critical habitat that are not yet receiving long-term conservation and management (Subunit 5A and portions of Unit 6 that are not conserved) will provide additional regulatory protection under section 7(a) of the Act if there is a Federal nexus and will provide a significant educational benefit by focusing conservation efforts by the City of San Diego under the City of San Diego MSCP Subarea Plan on conservation and management of these specific essential habitat areas for

pumila

and educating the public about the importance of these areas for the conservation of this species. Designation may also result in some ancillary benefits under other laws. Therefore, designating these areas as critical habitat for

A. pumila

will provide significant educational as well as some regulatory and ancillary benefits to the species. While we acknowledge that excluding these areas under section 4(b)(2) of the Act would provide a significant benefit to the partnership that we have with the City of San Diego and other permittees under the MSCP, we believe that the significant educational benefit along with the potential regulatory and ancillary benefits to conservation of the species and its essential habitat in Subunit 5A and in the unconserved portion of Unit 6 of including these lands as critical habitat outweighs the benefits of exclusion. Therefore we have not exercised our delegated discretion to exclude these areas.

Exclusion Will Not Result in Extinction of the Species—Portions of Unit 6, City of San Diego MSCP Subarea Plan

We determined that exclusion of 160 ac (65 ha) of land in Unit 6 within the City of San Diego MSCP Subarea Plan planning area from the final critical habitat designation for

Ambrosia pumila

will not result in extinction of the species. This area is permanently conserved and managed to provide a benefit to

A. pumila

and its habitat. The jeopardy standard of section 7 of the Act provides assurances that the species will not go extinct as a result of exclusion from critical habitat designation where habitat is occupied by

A. pumila

or other federally listed species. Therefore, based on the above discussion, we have determined to exercise our delegated discretion to exclude approximately 160 ac (65 ha) of land in Unit 6 covered under the City of San Diego MSCP Subarea Plan.

County of San Diego MSCP Subarea Plan

In addition to the protections described above under the

“San Diego Multiple Species Conservation Program

(

MSCP)—City and County of San Diego's Subarea Plans”

section, the County of San Diego MSCP Subarea Plan dictates that all occurrences (including any newly discovered occurrences) of

pumila

will be protected by impact avoidance measures required under the County's Biological Mitigation Ordinance (BMO; County of San Diego 1997, p. 11). Narrow endemic plants, including

pumila,

are conserved under the BMO using a process that: (1) Requires avoidance to the maximum extent feasible, (2) restricts encroachment into a population not already conserved to a maximum of 20 percent if total avoidance is not feasible, and (3) requires in-kind mitigation at 1-to-1 to 3-to-1 ratios for impacts if avoidance and minimization of impacts would preclude reasonable use of the property (County of San Diego 1997, p. 11; USFWS 1998, p. 12). Thus, the narrow endemic species policy for the County of San Diego MSCP Subarea plan requires

in situ

conservation of

A. pumila

or mitigation to ameliorate any habitat loss.

Below is a brief analysis of the relative benefits of inclusion and exclusion of that portion of Subunit 5B which we have exercised our delegated discretion to exclude from critical habitat designation under section 4(b)(2)

of the and our analysis of the relative benefits of inclusion and exclusion of the remaining portion of Unit 5B and all of Unit 7 which we have not exercised our delegated discretion to exclude from critical habitat designation.

Benefits of Inclusion—County of San Diego MSCP Subarea Plan

As discussed above in our section 4(b)(2) analysis of lands within the Western Riverside County MSHCP, the principle benefit of including an area in a critical habitat designation is the requirement of Federal agencies to ensure actions they fund, authorize, or carry out are not likely to result in the destruction or adverse modification of any designated critical habitat, the regulatory standard of section 7(a)(2) of the Act under which consultation is completed. Federal agencies must consult with the Service on actions that may affect critical habitat and must avoid destroying or adversely modifying critical habitat. Federal agencies must also consult with us on actions that may affect a listed species and refrain from undertaking actions that are likely to jeopardize the continued existence of such species. The analysis of effects to critical habitat is a separate and different analysis from that of the effects to the species. Therefore, the difference in outcomes of these two analyses represents the regulatory benefit of critical habitat. For some species (including

Ambrosia

pumila

Critical habitat may provide a regulatory benefit for

Ambrosia

pumila

when there is a Federal nexus present for a project that might adversely modify critical habitat. A Federal nexus generally exists where land is federally owned, or where actions proposed on non-Federal lands require a Federal permit or Federal funding. In the absence of a Federal nexus, the regulatory benefit provided through Section 7 consultation under the Act does not exist. Clearly, any activities affecting designated critical habitat on Federal land would trigger a duty to consult under Section 7. In contrast, the potential of a Federal nexus for activities proposed on non-Federal lands varies widely and depends on the particular circumstances of each case. Nevertheless, because the breadth of potential Federal actions that may trigger a duty to consult under Section 7 is quite broad, we cannot say with certainty tha

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