Endangered and Threatened Wildlife and Plants; Determination of Endangered or Threatened Status for Four Plants From Southwestern California and Baja California, Mexico

SUMMARY: The Fish and Wildlife Service (Service) determines endangered

status for one plant Monardella linoides ssp. viminea (willowy

monardella) throughout its historic range in southwestern California

and northwestern Baja California, Mexico, and threatened status for

three plants: Acanthomintha ilicifolia (San Diego thornmint), Dudleya

stolonifera (Laguna Beach dudleya), and Hemizonia conjugens (Otay

tarplant) throughout their historic ranges in southwestern California

and northwestern Baja California, Mexico, under the Endangered Species

Act of 1973, as amended (Act). These four species occur in coastal sage

scrub, chaparral, and grassland habitats and are threatened by a

variety of factors including urban and agricultural development,

competition from nonnative plant species, off-road vehicle use, mining,

grazing, and trampling by hikers. This rule implements the Federal

protection and recovery provisions afforded by the Act for these four

plant species.

DATES: This rule is effective on November 12, 1998.

ADDRESSES: The complete file for this rule is available for public

inspection, by appointment, during normal business hours at the U.S.

Fish and Wildlife Service, Carlsbad Field Office, 2730 Loker Avenue

West, Carlsbad, California 92008.

FOR FURTHER INFORMATION CONTACT: Dr. Gary D. Wallace, Botanist (see

ADDRESSES section) (telephone 760/431-9440; FAX 760/431-9624).

SUPPLEMENTARY INFORMATION:

Background

Acanthomintha ilicifolia (San Diego thornmint), Monardella linoides

ssp. viminea (willowy monardella), and Hemizonia conjugens (Otay

tarplant) occur in San Diego County, California, and northwestern Baja

California, Mexico. Dudleya stolonifera (Laguna Beach liveforever) is

restricted to the San Joaquin Hills of Orange County, California. These

species occur in coastal sage scrub, grasslands on clay soils, or in a

mosaic of sage scrub, chaparral, and riparian scrub habitats.

Typically, areas with Mediterranean climates such as southern

California have numerous rare, locally endemic (native) species (Cody

1986). Southern California has the highest concentration of locally

endemic plant species in the United States (Gentry 1986) and currently

has one of the highest human population growth rates in the country.

From 1950 to 1990, the human population of San Diego County increased

by 349 percent, and the population of Orange County increased by 1,015

percent (California Department of Finance 1993). Most of these

increases occurred within or near sites historically occupied, in part,

by coastal sage scrub. Between 1990 and 2015, the number of occupied

housing units in San Diego County is expected to increase by 45 percent

(City of San Diego and U.S. Fish and Wildlife Service 1996a).

By the 1980's, nearly 90 percent of the entire coastal sage scrub

ecosystem in California had been lost (Westman 1981a, 1981b). In San

Diego County, 95 percent of the native perennial grasslands and nearly

60 percent of the coastal sage scrub have been eliminated as a result

of urban and agricultural development (Oberbauer and Vanderweir 1991,

San Diego Association of Governments 1995). About 220,000 acres of

coastal sage scrub remain in San Diego County (U.S. Fish and Wildlife

Service, in litt. 1996).

Habitat destruction or modification adversely affects species

native to this area by reducing population densities and contributing

to habitat fragmentation. Rapid urbanization and agricultural

conversion in Orange and San Diego Counties has already eliminated or

reduced populations of the four plant species addressed in this final

rule. The trend of habitat loss and fragmentation is expected to

continue as the population of southern California expands. These

species are also adversely affected by the invasion of nonnative

plants, off-road vehicle (ORV) use, increased erosion, grazing, and

trampling by humans.

Populations of these four species in Baja California are also

threatened by land use practices. For example, Bowler (1990) and

Oberbauer (1992) reported that coastal scrub vegetation in northern

Baja California is being grazed, burned to increase grass production,

and rapidly converted to row-crop agriculture or condominiums,

campgrounds and resort housing. Rea and Weaver (as cited in Atwood

1990) also noted that coastal sage scrub in Baja California ``* * * has

been seriously degraded by burning, grazing, and conversion to

vineyards during the past two decades.''

Discussion of the Four Species

Acanthomintha ilicifolia (San Diego thornmint) was first described

by Asa Gray (1872) as Calamintha ilicifolia, based on a specimen

collected from ``California, probably lower California.'' Gray (1878)

subsequently renamed the species Acanthomintha ilicifolia. This species

is an annual aromatic herb of the mint family (Lamiaceae). Members of

this genus have paired leaves and several sharply spined bracts

(modified leaves) below whorled flowers. Acanthomintha ilicifolia can

be distinguished from other members of the genus by its flower, which

has hairless anthers and style. The tubular, two-lipped corollas

(petals) are white with rose markings on the lower lip.

Acanthomintha ilicifolia usually occurs on heavy clay soils in

openings within coastal sage scrub, chaparral and native grassland of

coastal San Diego County and in isolated populations south to San Telmo

in northern Baja California, Mexico (Beauchamp 1986; Reiser 1996; U.S.

Fish and Wildlife Service, unpubl. data). Acanthomintha ilicifolia is

frequently associated with gabbro soils which are derived from igneous

rock and also occurs in calcareous marine sediments.

About 40 percent of 52 historic populations of Acanthomintha

ilicifolia in the United States have been extirpated (i.e., no longer

exist). Currently, there are about 150,000-170,000 individuals in 32

populations in the United States, ranging from San Marcos east to

Alpine and south to Otay Mesa in San Diego County (California Native

Natural Diversity Data Base (CNDDB) 1997, Reiser 1996, Roberts 1997a).

This species occupies an estimated 156 hectares (ha) (400 acres (ac)).

About 60 percent of the reported individuals are concentrated in four

populations (Sycamore Canyon, Slaughterhouse Canyon, and two

populations on Viejas Mountain). At least nine sites are known to have

recently supported A. ilicifolia in Baja California, Mexico. The

current status of this species in Mexico is uncertain.

Of the 32 extant populations of Acanthomintha ilicifolia, 11 are

considered major populations (i.e., supporting over 3,000 individuals

each). Four of these major populations are located within the Multiple

Species Conservation Program (MSCP) planning subregion of southern San

Diego

[[Page 54939]]

County, California. Two of these, Sabre Springs (private ownership) and

Sycamore/Slaughterhouse canyons (San Diego County ownership) are

adequately conserved by the MSCP (City of San Diego and U.S. Fish and

Wildlife Service 1996b). Another population, Asphalt Inc. (private

ownership) is in the MSCP outside the Multiple Habitat Preserve Area

(MHPA) but will receive significant conservation benefits within the

Metro-Lakeside-Jamul segment of the MSCP of the County of San Diego.

The last of these four populations, Otay Lakes Northeast (private

ownership) is not adequately protected. The remaining seven major

populations are located either north or east of the MSCP subregion

(CNDDB 1997, Roberts 1997a). Of these seven major populations, four are

located within lands managed by the Forest Service (on Viejas and Poser

mountains). The three remaining major populations and the majority of

the smaller populations are on lands managed by private landowners.

Dudleya stolonifera (Laguna Beach liveforever) was first described

by Reid Moran (1949) based on a specimen he collected in 1948 from

Aliso Canyon in Orange County. Dudleya stolonifera is a succulent

perennial member of the stonecrop family (Crassulaceae) and has basal

rosettes of flat, oblong, bright green leaves arising from a woody

base. Its flowers have bright yellow-green petals that are fused near

their base. Dudleya stolonifera is distinguished by its branching

stolons (horizontal stems that root at the nodes) and lateral

vegetative branches that arise from the basal rosette (Moran 1977).

Dudleya stolonifera is found only in the vicinity of Laguna Beach

(Orange County) on steep cliffs in canyons. Dudleya stolonifera is

primarily restricted to weathered sandstone rock outcrops on cliffs in

microhabitats within coastal sage scrub or chaparral.

This species is known from only 6 populations, which collectively

contain up to 10,000 individuals. Four of the six populations

collectively contain over 95 percent of all known individual plants.

Two populations of Dudleya stolonifera have been reduced by urban

development. The westernmost portion and the main portion of the Aliso

Gorge population have been eliminated. Approximately half of the Canyon

Acres population of D. stolonifera has been cleared by the landowner

(CNDDB 1997).

The range of Dudleya stolonifera lies entirely within the

boundaries of the Central/Coastal subregion of the State's Natural

Communities Conservation Planning (NCCP) area. One of the four major

populations is within the lands designated as a preserve within the

Central/Coastal subregion. This population is on a State ecological

preserve predating the NCCP program. The other three major populations,

representing about 70 percent of the individuals of this species, are

found on private lands managed by nonparticipating landowners. One

minor population is within lands designated as a preserve within the

Central/Coastal subregion.

Hemizonia conjugens (Otay tarplant) was first described by David D.

Keck (1958) based on a specimen collected by L.R. Abrams in 1903 from

river bottom land in the Otay Valley area of San Diego. Hemizonia

conjugens, a glandular, aromatic annual in the sunflower family

(Asteraceae), has a branching stem from 5 to 25 centimeters (cm) (2.0

to 9.8 inches (in)) in height and deep green or gray-green leaves

covered with soft, shaggy hairs. The yellow flower heads are composed

of 8-10 ray flowers and 13-21 disk flowers with hairless or sparingly

downy corollas (petals). The phyllaries (bracts, or modified leaves,

below the flower head) are keeled with short-stalked glands and large,

stalkless, flat glands near the margins. Hemizonia conjugens occurs

within the range of Hemizonia fasciculata and Hemizonia paniculata

(Tanowitz 1982). Hemizonia conjugens can be distinguished from these

species in having 8-20 ray flowers.

Three of the 25 historic localities of Hemizonia conjugens in the

United States are considered to be extirpated (Hogan 1990; Sandy Morey,

Coordinator for the Endangered Plant Program, California Department of

Fish and Game (CDFG), in litt. November 1994). It is likely, however,

that other unreported populations have also been eliminated as about 70

percent of the suitable habitat for this species within its known range

has been developed or is under cultivation. Hemizonia conjugens

currently has a limited distribution near Otay Mesa in southern San

Diego County, California; there is one known population near the United

States border in Baja California, Mexico (Sandy Morey, Endangered

Plants Program Coordinator, CDFG, in litt. 1994; CDFG 1994, Reiser

1996, CNDDB 1997, Roberts 1997b).

Hemizonia conjugens distribution is highly correlated with the

distribution of clay soils or clay subsoils (Sandy Morey, in litt.

November 1994). This species is typically found in clay soils on slopes

and mesas within native and mixed (native and nonnative) grassland or

open coastal sage scrub habitats. The majority of H. conjugens

populations are associated with native grasslands, mixed grasslands

(i.e., native grassland interspersed with nonnative grass species such

as Bromus diandrus (ripgut grass), Bromus madritensis (foxtail chess),

and Hordeum murinum (hare barley)) and open, grassy coastal sage scrub.

About 11,930 ha (30,310 ac) of land with clay soils or clay

subsoils are situated within the general range of Hemizonia conjugens

in San Diego County (City of San Diego and U.S. Fish and Wildlife

Service 1997). Clay soils are heavy (dense) and favor grassland

development. It is likely that much of this area was once vegetated

with native grassland and open and grassy coastal sage scrub, which

provided suitable habitat for H. conjugens. About 4,200 ha (10,600 ac)

(about 37 percent) of this area has been urbanized and about 4,155 ha

(10,555 ac) (about 37 percent) has been cultivated. Although the

cultivated lands could be restored to natural habitat capable of

supporting H. conjugens, these areas do not currently support this

species and are not likely to support the species in the foreseeable

future based on proposed land use. Thus, only about 3,415 ha (8,530 ac)

of habitat with the appropriate soils are currently available to the

species. This represents about 30 percent of the historically available

area (City of San Diego and U.S. Fish and Wildlife Service 1997). Fewer

than 250 ha (650 ac) of areas with appropriate soil types are known to

be occupied by H. conjugens.

Hemizonia conjugens, like many annual species, can vary

significantly in numbers of individuals from one year to the next due

to a variety of factors, including rainfall, timing of rainfall, and

temperature. In the 22 extant populations in California, there may be

as many as 300,000 individuals under favorable conditions (CNDDB 1997,

Roberts 1997b); however, the number of individuals in any given year is

probably considerably less. Without knowledge of the species'

demography, seedbank and seedbank dynamics, estimations of effective

population size are impossible. Until its rediscovery in Baja

California in 1977, this species was considered potentially extinct in

California as a result of extensive development within its range

(Tanowitz 1978).

Of the 22 extant populations of Hemizonia conjugens in California,

12 are considered major populations (i.e., having more than 1000

individuals). The largest population complex, Horseshoe Bend-Gobblers

Knob (Rancho San Miguel), supports about 200,000 individuals, more than

65 percent of all

[[Page 54940]]

known plants. Although all individuals in the Rancho San Miguel complex

have been reported as Hemizonia conjugens, variations in soil

substrates suggest that about 23,000 individuals may be Hemizonia

paniculata (OGDEN 1992a, Stone 1994, San Diego Gas and Electric 1995,

Roberts 1997b). The five largest populations of Hemizonia conjugens

(Horseshoe Bend-Gobblers Knob (Rancho San Miguel), Rice Canyon, Poggi

Canyon, Proctor Valley, and Dennery Canyon) support about 94 percent of

all reported individuals (OGDEN 1992a; Stone 1994; San Diego Gas and

Electric 1995; Morey, in litt. 1994; City of San Diego and U.S. Fish

and Wildlife Service 1996b; Roberts 1997b). Of the 17 remaining

populations 7 are reported to support from 1,000 to 6,000 individuals

each, and 10 support fewer than 1,000 individuals each. All populations

of this species in the United States are on private lands.

Hemizonia conjugens appears to tolerate mild levels of disturbance

such as light grazing (Dr. Barry Tanowitz, University of California,

Santa Barbara, in litt. 1977; Hogan 1990). Such mild disturbances

create sites necessary for germination (Tanowitz, in litt. 1977);

however, the species is otherwise threatened by activities such as

development and intensive agriculture.

Monardella linoides ssp. viminea was first described by Edward L.

Greene (1902) as Monardella viminea based on a specimen collected by

George Vasey in 1880. Greene (1906) later proposed the combination

Monardella viminea. Munz (1935) reduced this taxon to the rank of

variety as Monardella linoides ssp. viminea. Abrams (1951) published

the currently accepted combination of Monardella linoides ssp. viminea.

Monardella linoides ssp. viminea is a perennial herb in the mint

family (Lamiaceae) with a woody base and aromatic foliage. The leaves

of this species are linear to lanceolate (lance-shaped). Greenish-

white, often rose-tipped bracts are below dense terminal heads of pale

white to rose-colored flowers. This species can be distinguished from

other members of the genus by its glaucous (waxy) green, hairy stems

and its conspicuously gland-dotted bracts.

Monardella linoides ssp. viminea often grows in sandy washes and

floodplains and is frequently associated with Eriogonum fasciculatum

(California buckwheat), Platanus racemosa (sycamore), Quercus agrifolia

(coast live oak), Artemisia californica (California sagebrush), and

Baccharis sarothroides (coyotebush) (Scheid 1985). Monardella linoides

ssp. viminea primarily inhabits washes in coastal sage scrub or

riparian scrub habitats.

Populations of Monardella linoides ssp. viminea, which are

concentrated in the Miramar area of San Diego County, extend south into

Baja California, Mexico. This species was previously known from 27

occurrences in the United States. Approximately 6,000 individuals of M.

linoides ssp. viminea from 20 occurrences are thought to currently

exist in the United States (Reiser 1996, CNDDB 1997). All populations,

with the exception of 2 populations of approximately 200 individuals

each (Cedar Canyon and Marron Valley) occur between Penasquitos Canyon

and Mission Gorge in San Diego County. Fifteen populations have fewer

than 100 plants, and 6 of these populations contain fewer than 15

individuals. Most populations occur on Federal land at Marine Corps Air

Station, Miramar, including one of the largest populations. About 1,700

individuals were reported at that locale in 1994 (R.G. Fahey,

Lieutenant Commander, CEC, U.S. Navy, in litt. 1995). One population

occurs near Arroyo Jatay in northern Baja California, Mexico.

Previous Federal Actions

Federal government action on the four plant species considered in

this rule began with section 12 of the Act, which directed the

Secretary of the Smithsonian Institution to prepare a report on those

plants considered to be endangered, threatened, or extinct. This report

(House Document No. 94-51) was presented to Congress on January 9,

1975, and included Acanthomintha ilicifolia, Dudleya stolonifera,

Monardella linoides ssp. viminea, and Hemizonia conjugens as

endangered. The Service published a notice on July 1, 1975 (40 FR

27823) of its acceptance of the report of the Smithsonian Institution

as a petition (under section 4(c)(2) of the Act, but now covered under

section 4(b)(3)) and of the Service's intention to review the status of

the plant species named in the report. On June 16, 1976, the Service

proposed to determine approximately 1,700 vascular plant species,

including A. ilicifolia, D. stolonifera, H. conjugens, and M. linoides

ssp. viminea, to be endangered species (41 FR 24523) as defined by

section 4 of the Act. General comments received in response to the 1976

proposal were summarized in an April 26, 1978, notice (43 FR 17909).

The Act amendments of 1978 required that all proposals over two

years old be withdrawn. A one-year grace period was given to those

proposals already more than two years old. In a December 10, 1979

notice (44 FR 70796), the Service published a notice of withdrawal of

the outstanding portion of the June 16, 1976, proposal, including the

four species considered in this listing.

The Service published an updated Notice of Review of plants on

December 15, 1980 (45 FR 82480). This notice included Acanthomintha

ilicifolia, Dudleya stolonifera, Hemizonia conjugens, and Monardella

linoides ssp. viminea as category 1 candidates (i.e., those species for

which substantial information on biological vulnerability and threats

is available to support preparation of listing proposals).

The 1982 amendments to the Act required that all petitions pending

on October 13, 1982, be treated as having been newly submitted on that

date (section 2(b)(1)). The 1975 Smithsonian report, including the four

subject species, was accepted as a petition. The Service is required to

determine within 12 months of the receipt of a petition (section

4(b)(3)(B)) whether the petitioned action is not warranted, is

warranted, or is warranted but precluded by other pending listing

actions of higher priority (section 4(b)(3)(B)(iii)). On October 13,

1983, the Service found that the petitioned listing of these species

was warranted but precluded and published the notification of this

finding on January 20, 1984 (49 FR 2485). A warranted but precluded

petition must be recycled (section 4(b)(3)(C)(1)), and the finding was

reviewed annually from October of 1984 through 1992.

On November 28, 1983, the Service published (48 FR 53640) a

supplement to the 1980 Notice of Review. This supplement treated

Acanthomintha ilicifolia, Monardella linoides ssp. viminea, and

Hemizonia conjugens as category 2 candidates (i.e., species for which

data in the Service's possession indicated listing was possibly

appropriate but for which substantial information on biological

vulnerability and threats were not known or on file to support

preparation of proposed rules). Dudleya stolonifera was not included as

either a category 1 or category 2 candidate in the 1983 Notice of

Review.

In the September 27, 1985 revised Notice of Review for plants (50

FR 39526), Dudleya stolonifera was included as a category 1 species,

and Acanthomintha ilicifolia, Hemizonia conjugens, and Monardella

linoides ssp. viminea were included as category 2 species. Enough data

were subsequently gathered to include A. ilicifolia as a category 1

species in the February 21, 1990, Notice of Review (50 FR 45242).

[[Page 54941]]

On December 14, 1990, the Service received a petition dated

December 5, 1990, from Mr. David Hogan of the San Diego Biodiversity

Project, to list Hemizonia conjugens as endangered. The petition also

requested designation of critical habitat. On January 7, 1991, the

Service received another petition from Mr. Hogan, dated December 30,

1990, to list Acanthomintha ilicifolia as endangered. This petition

also requested designation of critical habitat. Acanthomintha

ilicifolia and H. conjugens were included in the Smithsonian

Institution's Report of 1975 that had been accepted as a petition. The

Service, therefore, regarded Mr. Hogan's petitions to list these two

species as second petitions.

In the September 30, 1993 Notice of Review revision (58 FR 51144),

Dudleya stolonifera and Acanthomintha ilicifolia remained as category 1

candidate species, and Hemizonia conjugens and Monardella linoides ssp.

viminea remained as category 2 candidate species. The Service made a

final ``not warranted'' finding on the 1975 petition with respect to A.

ilicifolia, M. linoides ssp. viminea, and 863 other species in the

December 9, 1993, Federal Register (58 FR 64828). This finding was

based on the lack of data relating to current threats throughout a

significant portion of the species' ranges (i.e., one of the five

factors described within the proposed rule under 50 CFR 424.11). These

species were retained in category 2 on the basis that they may be

subject to extinction or endangerment from loss of habitat or from

other human-caused changes to their environment (58 FR 64840). Use of

the category 2 designation was discontinued in the February 28, 1996,

Notice of Review (61 FR 7596).

In 1994, the Service obtained complete data that adequately

described those factors that placed Acanthomintha ilicifolia and

Monardella linoides ssp. viminea at risk of extinction. The Service

ultimately responded to the Smithsonian and Hogan petitions by

publishing a proposed rule to list Acanthomintha ilicifolia, Dudleya

stolonifera, Hemizonia conjugens, and Monardella linoides ssp. viminea

as endangered in the Federal Register on August 9, 1995 (60 FR 40549).

On April 10, 1995, a moratorium on final listings was imposed by

Congress. Until the moratorium was lifted on April 26, 1996, the

Service was not allowed to complete any final listing actions.

The Service published Listing Priority Guidance for Fiscal Years

1998 and 1999 on May 8, 1998 (63 FR 25502). The guidance clarifies the

order in which the Service will process rulemakings giving highest

priority (Tier 1) to processing emergency rules to add species to the

Lists of Endangered and Threatened Wildlife and Plants (Lists); second

priority (Tier 2) to processing final determinations on proposals to

add species to the Lists, processing new proposals to add species to

the Lists, processing administrative findings on petitions (to add

species to the Lists, delist species, or reclassify listed species),

and processing a limited number of proposed or final rules to delist or

reclassify species; and third priority (Tier 3) to processing proposed

or final rules designating critical habitat. Processing of this final

rule is a Tier 2 action.

Summary of Comments and Recommendations

In the August 9, 1995, proposed rule (60 FR 40549) and associated

notifications, all interested parties were requested to submit factual

reports or information that might contribute to the development of a

final rule. The comment period closed on October 9, 1995. Appropriate

State agencies, County governments, Federal agencies and other

interested parties were contacted and requested to comment. Public

notices announcing the publication of the proposed rule were published

in the San Diego Union Tribune in San Diego County on August 11, 1995,

and the Orange County Register on August 16, 1995. No request for a

public hearing was received.

A total of 20 written comments was received. Four commenters did

not address the proposed listing action directly, or support or oppose

the listing of these species. Ten commenters supported the listing, and

6 commenters opposed the proposed listing; however, only 8 of the 16

commenters supporting or opposing the listing addressed all 4 species.

Information from a number of these comments has been incorporated into

the final rule. The Service's responses to each of 12 relevant issues

raised in these comments are as follows.

Issue 1: One commenter expressed concern that the proposed listing

of these plants appeared to be in response to litigation and not

objective science. This comment apparently is in reference to a court

settlement with the California Native Plant Society to render decisions

on 159 category 1 plant species by March 31, 1996. This same commenter

also expressed concern that there was inadequate staff resources to

properly analyze data relevant to the decision-making process. The

commenter cited ``significant deficiencies'' in the database upon which

the Service relied to determine if these species should be listed.

Service Response: The Service disagrees that there are significant

deficiencies in the data used in the decision-making process for the

four species listed in this rule. The commenter did not supply any data

that would have changed the Service's finding.

The court settlement with the California Native Plant Society did

influence the timing of the review of the current status of Dudleya

stolonifera and Hemizonia conjugens; however, Acanthomintha ilicifolia

and Monardella linoides ssp. viminea were not part of the original

lawsuit settlement. The Service determined that these species would

likely qualify for listing as endangered species as early as 1976 (see

``Previous Federal Action'' section of this rule). Actions of higher

priority precluded a review of the status of these species for nearly

two decades. The lawsuit settlement prompted the Service to review D.

stolonifera and H. conjugens and 157 other species as high priority

actions. The lawsuit, however, did not require any specific action with

regard to the 159 species, only that the conservation status of each

species be resolved through publication of a ``not warranted'' finding

or a proposed rule to list the species. A review of the data in the

Services' files and data obtained during 1992 and 1993 demonstrated

that A. ilicifolia and M. linoides ssp. viminea also needed protection

under the Act and resulted in publication of a proposed rule to list

these species in 1995.

The Service acknowledges that botanical staff resources were

limited at the time the settlement was concluded in 1991, and this

limitation resulted in delays. In addition, Congress imposed a listing

moratorium from April 10, 1995, through April 26, 1996, which precluded

the Service from rendering final listing decisions. Subsequent to the

lifting of the moratorium, the Service had inadequate staff and funding

to process the backlog of final listing actions (243 proposed species)

that accumulated because of the moratorium; other listing activities

(petition findings, new proposals of candidates species, and

withdrawals) were delayed, as well. In response, the Service adopted

guidelines for the processing of listing actions.

Issue 2: One commenter claimed that the proposed rule both ignored

important existing population data and lacked sufficient population

data to support a listing of Acanthomintha ilicifolia, Hemizonia

conjugens, and Monardella linoides ssp. viminea. The

[[Page 54942]]

commenter noted that, although the proposed rule claimed that there

were 20 extant populations of A. ilicifolia, the MSCP data base

contains 41 populations. The commenter stated that the MSCP localities

for the southwestern quarter of San Diego County alone is twice the

previous Service estimate for the entire U.S. range. One commenter

claimed to have supplied the CDFG with data on the status of 25

populations of H. conjugens. The commenter asserted that the estimate

of 15 extant populations of H. conjugens in the proposed rule is an

underestimate and an indication that the Service did not use all

available data in its analysis. The commenter also noted that the

Service failed to provide an estimate for the number of individuals of

H. conjugens.

Service Response: In preparation of the MSCP database maps,

``points'' were applied to represent species localities. A point may

describe information ranging from an individual plant, a population, or

an undefined number of individuals, unless specifically defined. A

cluster of points may represent colonies or individuals in proximity

that are not necessarily discrete populations. ``Points'' are also

known to represent isolated or fragmented populations that have been

significantly reduced, or in some cases, are recently extirpated

localities. Differences in numbers of ``points'' between the MSCP

database (based on unpublished data supplied by OGDEN in 1996) and

figures used in the proposed rule (based on a variety of sources)

result from differences in defining populations.

Thirty-nine Acanthomintha ilicifolia ``points'' are reported in the

most recent MSCP database (City of San Diego and U.S. Fish and Wildlife

Service 1996b; U.S. Fish and Wildlife Service, unpubl. data). The

Service has determined that these 39 ``points'' or point locations

constitute 15 of the 32 currently known extant populations of A.

ilicifolia in the U.S. The remaining 17 populations are located outside

of the MSCP planning area. A number of populations of A. ilicifolia

were not known at the time the proposed rule was prepared. However,

these new localities face the same threats as previously known

populations, therefore, the status of the species has not significantly

improved.

The Natural Heritage Division of CDFG has reported Rancho San

Miguel (Horseshoe Bend-Gobblers Knob) as supporting four separate

occurrences of Hemizonia conjugens (CNDDB 1997). The MSCP database

represents these populations with 20 ``points.'' Because of their

proximity and similarity in habitat, the Service is treating ``points''

in this complex as a single extended population for purposes of this

document. A single extended population of H. conjugens is recognized by

the Service and CDFG within the Otay River Valley. This population is

represented by 43 ``points'' within the MSCP database. A recent survey

of this population located only 10 individual plants (Stone 1994). A

discussion regarding population estimates for Hemizonia conjugens has

been included under the ``Discussion of the Four Species'' section of

this rule. The Service is currently aware of 22 extant populations of

H. conjugens, 7 more than were known in 1994. Although the number of

known sites has increased, the majority of the new localities are also

threatened; therefore, the status of the species has not significantly

improved.

The commenter did not supply substantive information regarding

Monardella linoides ssp. viminea; however, the species' distribution is

fairly well-known. Although other populations may eventually be found,

the Service considers the data available to be sufficient. Only 5 of

the 20 extant populations have at least 100 individuals. The Service

believes this reduction in numbers and distribution of M. linoides ssp.

viminea combined with threats to the remaining populations (urban

development, sand and gravel mining, ORVs, fire, trampling, trash

dumping, and erosion) support the listing of this species as

endangered.

Issue 3: One commenter claimed that the Service was obliged to

survey thoroughly for the three San Diego County species before

reaching a final decision regarding the listing of the three species.

The commenter noted that the proposed rule indicated that Acanthomintha

ilicifolia is frequently associated with gabbro clay soils and occurs

in calcareous marine sediments. Data compiled for the MSCP indicate

that the majority of these areas occur east of substantial development

within the subregion and that many of these areas have not been

systematically surveyed for A. ilicifolia. The commenter argued that

these areas should be thoroughly surveyed before a final decision can

be reached. The commenter also questioned the known status of A.

ilicifolia, Hemizonia conjugens, and Monardella linoides ssp. viminea,

in Baja California, Mexico, claiming that the Service has not

demonstrated that thorough surveys have been conducted in these areas.

Service Response: The Service concludes, as detailed in the

``Background'' and ``Summary of Factors Affecting the Species''

sections of this rule, that sufficient biological data exist to warrant

listing of the three plant species under the Act. Although the Service

acknowledges that additional populations of these rare plant species

may be discovered in San Diego County, California, it is likely that

these populations would be subject to the same threats that currently

place known populations at risk. For example, existing data indicate

that Monardella linoides ssp. viminea primarily occurs in washes at low

elevations along the coast. The species is unlikely to be found at the

higher elevations along the eastern boundary of the MSCP subregion

where appropriate habitat is uncommon. Additional unreported

populations of this species would likely be situated in areas subject

to urbanization and related impacts.

The general distribution limits of Hemizonia conjugens are fairly

well-understood. Significant populations of this species are not likely

to occur at higher elevations along the eastern border of the MSCP due

to a lack of preferred habitat (mesas and rolling hills with clay soils

or clay subsoils). Although additional populations may be located

within the range of H. conjugens, these populations would likely be

threatened given the current nature and extent of fragmentation,

cultivation, and proposed urbanization throughout the range of the

species.

Of the three San Diego taxa, only Acanthomintha ilicifolia has

significant favorable habitat occurring along the eastern boundary of

the MSCP and Multiple Habitat Conservation Plan (MHCP) subregions.

Recent discoveries indicate that additional significant populations of

this species may occur in the vicinity of Alpine and Sycamore Canyon.

The Service has considered this information in listing this species as

threatened rather than endangered as proposed. Nevertheless, the

majority of historic populations of A. ilicifolia were in western San

Diego County, California, and nearly half have been extirpated. Data

within the Service's files indicate that much of the undeveloped

habitat within the range of this species is likely to be urbanized, or

to be in proximity to urbanization in the foreseeable future.

Although the flora of northwestern Baja California has received

less scrutiny than that of Alta California, several botanists (notably

Reid Moran formerly of the San Diego Natural History Museum) have made

extensive surveys in coastal areas between Tijuana and El Rosario,

Mexico. There are numerous collections of plants from Mexico in the

herbaria of the Rancho

[[Page 54943]]

Santa Ana Botanic Garden in Claremont, California, and the San Diego

Natural History Museum in San Diego, California. All localities cited

within the proposed rule are based on collection records. Although it

is possible that other populations of all three species exist in

coastal Baja California, all three species are restricted to specific

habitats or have very restricted ranges. Hemizonia conjugens is known

only from a single locality east of Tijuana (La Presa) and is not

expected to occur farther than 16 kilometers (km) (10 miles (mi)) south

of the U.S. border. This area has been subject to substantial urban and

agricultural impacts (Direccion de Planeacion del Desarrollo Urbano y

Ecologica and San Diego Association of Governments (SANDAG) 1996).

Acanthomintha ilicifolia and Monardella linoides ssp. viminea are more

broadly distributed in Baja California. The preferred habitat for these

species, however, is limited and found in isolated patches.

Issue 4: One commenter claimed that the Service was applying

unreliable data and selective anecdotal speculation regarding threats

to these plants in Baja California, Mexico.

Service Response: The threats to the flora of northwestern Baja

California are well-documented and extensively discussed in recent

publications (Bowler 1990, RECON 1991b, Oberbauer 1992). Habitat

between Tijuana and Ensenada, Mexico, and in the vicinity of San

Quintin, MX is being converted to urban, recreational and agricultural

development (Oberbauer 1992). Impacts of expanding cultivation and

urbanization are also evidenced through satellite imagery of the

vicinity of Tijuana and La Presa (Direccion de Planeacion del

Desarrollo Urbano y Ecologica and San Diego Association of Governments

(SANDAG) 1996). This area includes the only known population of H.

conjugens in Baja California, Mexico.

Monardella linoides ssp. viminea and Acanthomintha ilicifolia both

occur in the vicinity of San Quintin. Satellite imagery documents that

about 49,500 ha (124,000 ac) of coastal plain in this region had been

converted to cultivation and urbanization by 1974 (U.S. Fish and

Wildlife Service, unpubl. data). The San Quintin kangaroo rat

(Dipodomys gravipes), a coastal lowland-associated species endemic to

the Baja California, Mexico, from San Telmo to El Rosario, is nearly

extinct as a result of this change in land use (Best 1983). More recent

satellite imagery (Earth Satellite Corporation 1994) documented

approximately 5,450 ha (13,600 ac) of additional habitat conversion on

the coastal plain and adjacent foothills by January 1994.

Issue 5: One commenter stated that the Service failed to establish

minimum viable population size for Hemizonia conjugens, Acanthomintha

ilicifolia, and Monardella linoides ssp. viminea. Without an estimate

of the minimum viable population size and distribution, ``* * * the

public is unable to determine what the Service believes constitutes a

population size and distribution threatening or endangering the

continued existence of these species * * *''.

Service Response: A minimum viability population analysis may be

useful for developing a recovery plan for some species (Shaffer 1990),

but is not necessary to determine whether a species should be listed. A

minimum viability population analysis does not address existing and

foreseeable threats to species that are key factors in determining

whether a species should be listed under the Act (see ``Summary of

Factors Affecting the Species'' section of this rule).

Issue 6: One commenter stated that the Service did not correctly

analyze the degree of threat to Hemizonia conjugens, Acanthomintha

ilicifolia, and Monardella linoides ssp. viminea inferred from past and

projected population growth in San Diego County. Although the Service

has relied on SANDAG estimates that the number of occupied housing

units in San Diego County would increase 69 percent between 1990 and

2015, the commenter noted that the May 1995 draft EIR/EIS for the San

Diego MSCP predicted that the San Diego metropolitan area will increase

by only 18 percent between 1990 and 2005. The commenter stated that

population growth in residential and commercial development in San

Diego County has ``significantly slowed since 1990'' and suggested that

the earlier SANDAG figure significantly overstates the current best

estimates for growth.

Service Response: Population growth estimates by SANDAG represent

the best available population growth estimates for the region and are

used extensively by local County and municipal jurisdictions in local

and regional planning. Because the Service does recognize that growth

projections are dynamic, we have incorporated the most recently

available figures on population growth into this rule. The August 1996

final EIR/EIS for the MSCP estimates a population increase of 21

percent for the population of the City of San Diego from 1990 to 2005

(City of San Diego and U.S. Fish and Wildlife Service 1996a). The

projected growth for the same area from 1990 to 2015 is 42 percent. The

cited document also reveals that population growth is projected to

increase 50 percent in the San Diego region from 2.5 million people to

3.8 million people. Occupied housing units are estimated to increase 45

percent in San Diego County from 1990 to 2015. Although these numbers

are lower than the earlier SANDAG estimates, they clearly indicate that

the region will be subject to significant population growth, which is

likely to contribute to the further decline of the three plant species

and their habitats.

Issue 7: One commenter questioned the accuracy of the reference

(Oberbauer and Vanderweir 1991) cited by the Service for purposes of

documenting and analyzing the loss of historic native grasslands in the

San Diego Region.

Service Response: The Service has determined that Oberbauer and

Vanderweir (1991) based their conclusions on data gathered utilizing

acceptable scientific methods.

Issue 8: One commenter claimed that the listing proposal did not

present an adequate discussion and analysis, with the exception of the

California gnatcatcher, on the protections afforded Acanthomintha

ilicifolia, Hemizonia conjugens, and Monardella linoides ssp. viminea

from other federally listed species. The commenter specifically

requested that the Service analyze the protections afforded by the

listings of Arctostaphylos glandulosa ssp. crassifolia (Del Mar

manzanita), Baccharis vanessae (Encinitas baccharis), Chorizanthe

orcuttiana (Orcutt's spineflower), Corethrogyne filaginifolia var.

linifolia (Del Mar aster), Dudleya blochmaniae ssp. brevifolia (short-

leaved dudleya), Navarretia fossalis (spreading navarretia), Pogogyne

abramsii (San Diego mesa mint), P. nudiuscula (Otay mesa mint),

Riverside fairy shrimp (Streptocephalus wootoni), Harbison's Dunne

skipper (Euphyes vestris harbisoni), Thorne's hairstreak butterfly

(Mitoura thornei), arroyo toad (Bufo microscaphus californicus),

California red-legged frog (Rana aurora daytonii), least Bell's vireo

(Vireo bellii pusillus), Pacific pocket mouse (Perognathus longimembris

pacificus), and Stephens' kangaroo rat (Dipodomys stephensii).

Service Response: The proposal to list Corethrogyne filaginifolia

var. linifolia (Del Mar aster) and Dudleya blochmaniae ssp. brevifolia

(short-leaved dudleya) was withdrawn on October 7, 1996 (61 FR 52402).

These species confer no Federal protections on Acanthomintha

ilicifolia, Hemizonia conjugens, or Monardella linoides ssp. viminea.

Additionally, the ranges of the

[[Page 54944]]

two withdrawn species do not overlap those of the species listed in

this rule. Harbison's Dunne skipper (Euphyes vestris harbisoni) and

Thorne's hairstreak butterfly (Mitoura thornei) are not listed nor have

these species ever been proposed for Federal listing. Therefore, these

two butterfly species confer no protection on the plants listed in this

rule. Although the Stephens' kangaroo rat (Dipodomys stephensii) is

listed as an endangered species, the range of the Stephens' kangaroo

rat is not known to overlap with any of the four plant species listed

in this rule. None of the other 11 federally listed species mentioned

by the commenter are found in the same habitat as the 4 species

addressed in this rule; therefore, protections for those listed species

do not confer any direct protection to the four species being listed by

this rule. An analysis of potential protection indirectly conferred on

these plants from the other listed species has been expanded in Factor

D of the ``Summary of Factors Affecting the Species'' section of this

rule.

Issue 9: Two respondents claimed that the Service failed to analyze

the expected impact of a listing on the regional NCCP habitat

conservation programs, or expressed concern that the listings would

result in a negative impact on these programs. One commenter alleged

that the action of listing three of the plant species could preclude

approval of the MSCP and, therefore, result in jeopardy to the species'

continued existence.

Service Response: The Service actively supports multispecies

planning efforts to avoid or reduce the need for future listing actions

within designated planning areas. However, the Service is required to

determine whether a species is endangered or threatened based solely on

the applicability of the five factors listed under section 4(a)(1) of

the Act. Significant populations of three species (Acanthomintha

ilicifolia, Dudleya stolonifera, and Monardella linoides ssp. viminea)

listed in this rule are outside the geographical limits of approved or

nearly completed multispecies conservation plan areas (MSCP or Central/

Coastal NCCP), or are not under the jurisdiction of these plans.

Acanthomintha ilicifolia is considered adequately conserved within

jurisdictions with approved subarea plans in the MSCP subregion and,

therefore, no additional mitigation is required to protect the species

within these jurisdictions. About 55 percent of the United States

populations (and about 65 percent of the major populations), however,

are outside the MSCP subregion.

The distribution of Dudleya stolonifera lies entirely within the

Central/Coastal NCCP subregion of Orange County. The species is

considered a ``covered species'' (species that will be adequately

conserved by the plan's proposed preservation and management) under the

Central/Coastal NCCP with respect to planned activities carried out by

participating landowners because protection of the species is assured

under the plan on lands owned and managed by such landowners. However,

only one of four major populations of D. stolonifera within the

Central/Coastal NCCP is on land owned by a participating landowner. The

plan does not extend coverage or ensure protection of this species on

lands owned by nonparticipating landowners in the subregion.

The entire U.S. distributions of Hemizonia conjugens and Monardella

linoides ssp. viminea occur within the MSCP subregion. Nearly 80

percent of the populations of M. linoides ssp. viminea, however, are

found on Marine Corps Air Station, Miramar lands not under jurisdiction

of the MSCP, and, although H. conjugens is a covered species under the

MSCP, the potential impacts of projects that are not subject to the

jurisdiction of the MSCP (see Factor D of the ``Summary of Factors

Affecting the Species'' section of this rule) are very important to the

long-term survival of this species. The listing of H. conjugens and M.

linoides ssp. viminea will not adversely affect jurisdictions with

approved subarea plans under the MSCP because these species are

``covered'' under the MSCP, and therefore no additional mitigation is

required to protect the species in these jurisdictions. Thus, the

listing of Acanthomintha ilicifolia, Dudleya stolonifera, and

Monardella linoides ssp. viminea will not have a negative impact on the

MSCP and Central/Coastal NCCP because the Service has determined that

populations of these species covered by these plans will be adequately

protected by the participating jurisdictions and/or participating

landowners; no additional mitigation will be required of these

participants. The significant threats faced by species outside of the

geographical or regulatory jurisdictions of the approved plans warrant

the listing of these species.

Issue 10: One commenter stated the Service should not add Dudleya

stolonifera to the endangered species list because one of the threats

cited was competition from nonnative plant species. The commenter

stated that competition is a natural process, and therefore ``* * *

nature is doing its own eliminating.'' By attempting to protect the

species, the Service was only prolonging the inevitable.

Service Response: The Service is required to determine whether any

species is endangered or threatened based on the applicability of the

five factors listed under section 4(a)(1) of the Act, including ``* * *

other natural or manmade factors affecting their continued existence.''

Competition from nonnative plants often results from, and is

accelerated by, human activities such as disturbance of natural habitat

and fragmentation of natural habitat. The Service does not consider

competition from nonnative plants a natural process, and therefore such

competition constitutes a threat under the Act.

Issue 11: The Service must comply with Executive Order No. 12630

and conduct a takings analysis for each species before reaching any

final decisions.

Service Response: Executive Order 12630, Government Actions and

Interference with Constitutionally Protected Property Rights, requires

that a Takings Implications Assessment (TIA) be conducted in connection

with final rulemakings that may affect the value or use of private

property. The Attorney General has issued guidelines to the Department

of the Interior (Department) regarding TIAs. The Attorney General's

guidelines state that TIAs are to be prepared after, rather than

before, an agency makes a restricted discretionary decision. The Act

requires the Service to make listing determinations based solely upon

the best scientific and commercial data available. Economic

considerations may not be used in listing determinations. If the

Service determines that the final rule for listing any of these species

may affect the use or value of private property, a TIA will be prepared

for the rule(s).

Issue 12: One commenter supported the listing of Acanthomintha

ilicifolia and Hemizonia conjugens and suggested that the genetic

differences among populations of patchily distributed edaphic

specialists could affect preservation strategies and priorities.

Service Response: The Service agrees that genetic differences among

patchily distributed populations are a relevant concern in designing

conservation strategies. Determination of genetic differences and their

effects on conservation strategies and priorities will be addressed in

recovery plan development after the species are listed.

[[Page 54945]]

Peer Review

The Service routinely has solicited comments from parties

interested in, and knowledgeable of, species which have been proposed

for listing as threatened or endangered species. The July 1, 1994, Peer

Review Policy (59 FR 34270) established the formal requirement that a

minimum of three independent peer reviewers be solicited to review the

Service's listing decisions. During the August 9, 1995, to October 9,

1995, comment period, the Service solicited the expert opinions of

three biologists having recognized expertise in botany and/or

conservation biology to review the proposed rule. The Service received

comments from two of the three reviewers within the comment period.

Both concurred with the Service on factors relating to the taxonomy of

the species and biological and ecological information (E. Bauder in

litt. 1995, M. Dodero in litt. 1995).

Summary of Factors Affecting the Species

After a thorough review and consideration of all information

available, the Service has determined that Monardella linoides ssp.

viminea should be classified as an endangered species, and

Acanthomintha ilicifolia, Dudleya stolonifera, and Hemizonia conjugens

should be classified as threatened species. Procedures found in section

4 of the Act and regulations implementing the listing provisions of the

Act (50 CFR part 424) were followed. A species may be determined to be

endangered or threatened due to one or more of the five factors

described in section 4(a)(1). The threats and their application to

Acanthomintha ilicifolia A. Gray, (San Diego thornmint), Dudleya

stolonifera Moran (Laguna Beach liveforever), Hemizonia conjugens D.D.

Keck (Otay tarplant), and Monardella linoides A. Gray ssp. viminea

(Greene) Abrams (willowy monardella) are as follows and summarized in

Table 1.

Table 1.--Summary of Threats

--------------------------------------------------------------------------------------------------------------------------------------------------------

Off-road

Trampling Alien plant vehicles Urbanization Mining Alteration Overutilization

grazing species (ORV) of hydrology

--------------------------------------------------------------------------------------------------------------------------------------------------------

Acanthomintha ilicifolia........................... X X X X X

Dudleya stolonifera................................ X X X X

Hemizonia conjugens................................ X X X X

Monardella linoides ssp. viminea................... X X X X X X X

--------------------------------------------------------------------------------------------------------------------------------------------------------

A. The Present or Threatened Destruction, Modification, or Curtailment

of Their Habitat or Range

The rapid urbanization of coastal southern California imminently

threatens the four species in this final determination. Many of the

same factors threatening Acanthomintha ilicifolia, Hemizonia conjugens,

and Monardella linoides ssp. viminea in the United States (urban and

agricultural development) also threaten these species in Baja

California, Mexico.

Of the 52 historically known populations of Acanthomintha

ilicifolia in the United States, 20 have been extirpated by residential

or commercial developments. In addition, ORV activity and trampling by

cattle and humans have contributed to the decline of this species. For

example, one population (Sabre Springs) in Poway has declined by about

60 percent as a result of these factors (Bauder, McMillan, and Kemp

1994, CNDDB 1997). Five populations are currently directly threatened

by development (OGDEN 1992b, OGDEN 1992d, Enviromine 1994, CNDDB 1997).

Although existing and proposed development largely avoids direct

impacts, in many cases the development footprint is immediately

adjacent or in proximity to A. ilicifolia populations (Michael Brandman

Associates 1990, RECON 1991a, OGDEN 1992b, OGDEN 1992c, OGDEN 1992d,

OGDEN 1995, Bauder, McMillan, and Kemp 1994, Sweetwater Environmental

Biologists 1994, T. & B. Planning Consultants 1994, Shapouri and

Associates 1995, City of San Diego 1995a, City of San Diego and U.S.

Fish and Wildlife Service 1996a, 1996b, 1997; U.S. Fish and Wildlife

Service, in litt. 1996). Consequently, habitat is degraded and risks

from nonnative plant replacement, trampling, fragmentation, and

isolation increase (See Factor E of the ``Summary of Factors Affecting

the Species'' section of this rule). Sixty percent of all individuals

are, or will be situated in proximity to development after

implementation of currently approved or proposed development (Roberts

1997a).

Four occurrences of Acanthomintha ilicifolia are on lands managed

by the City of San Diego (Mission Trails Park, Los Penasquitos Park,

and Sycamore Canyon Park) (Bauder, McMillan, and Kemp 1994; CNDDB

1997). Each of these four occurrences receives some level of protection

by the City of San Diego, because A. ilicifolia is a ``covered

species'' under the MSCP.

One population of Acanthomintha ilicifolia is on land managed by

The Nature Conservancy (McGinty Mountain) and four populations occur on

the Cleveland National Forest (Viejas Mountain and Poser Mountain).

These populations, however, are vulnerable to habitat degradation

resulting from illegal dumping, trampling, erosion and ORV activity

(Bauder, McMillan, and Kemp 1994). Roads adjacent to populations in the

vicinity of McGinty Mountain and Penasquitos Canyon provide easy access

for foot traffic and ORV use.

The status of Acanthomintha ilicifolia and its habitat in

northwestern Baja California, Mexico, is not well-documented. The

species is known to occur as far south as Las Escobas near San Quintin,

Mexico, but its distribution in Mexico is spotty (Reid Moran, pers.

comm. 1992). The San Diego Natural History Museum has herbarium

specimens of A. ilicifolia from nine localities in Baja California,

Mexico; however, little information is available on numbers of

individuals or specific threats. One population near Tecate, Mexico is

threatened by an adjacent clay mining operation (Tom Oberbauer, Senior

Planner, San Diego County, pers. comm. 1992). This northern region

represents one of the most severely impacted areas in Baja California,

and many of the same factors (urban and agricultural development) that

have affected the status of this species in the United States also

threaten the species in Mexico.

Three of the 25 known historic locations of Hemizonia conjugens are

considered to be extirpated (Hogan 1990, S. Morey in litt. 1994, CNDDB

1997). In addition, about 70 percent of the potentially suitable

habitat for this species has been cleared for agriculture and

urbanization (City of San Diego and U.S. Fish and Wildlife Service

1997). About 40 percent of all remaining individuals will be eliminated

by currently approved and proposed

[[Page 54946]]

development projects (Morey, in litt. 1994; OGDEN 1992a, OGDEN 1992c,

San Diego Gas and Electric 1995, Tetra Tech 1996, CNDDB 1997). These

impacts have been considered by the Service through development of the

MSCP. Of the remaining populations after implementation of these

various developments, about 90 percent will be situated adjacent to, or

within the immediate vicinity of, urban development and recreation

areas (Roberts 1997b). These plants will be threatened by the secondary

effects of encroaching development (e.g., nonnative plant species

replacement, isolation, and fragmentation). Management provided through

the MSCP and on San Diego National Wildlife Refuge lands, however, will

help alleviate these effects for projects subject to the MSCP.

The four largest populations (Horseshoe Bend, Rice Canyon, Dennery

Canyon, and Proctor Valley) of Hemizonia conjugens support 90 percent

of all individuals. At Horseshoe Bend, the largest population (about 65

percent of all individuals) will be impacted by a residential-

commercial development project (Rancho San Miguel), utilities, and

State Route 125 (OGDEN 1992a, San Diego Gas and Electric 1995, Tetra

Tech 1996). These impacts will result in loss of about 60 percent of

the individuals and most of the occupied habitat in the Rancho San

Miguel complex. The remaining portion of the Horseshoe Bend population,

which constitutes about 35 percent of the known individuals of the

species, will be conserved as part of the MSCP. Direct impacts to the

Rice Canyon population (about 15 percent of all individuals) have been

for the most part avoided. The remaining population, however, is

isolated and in proximity to urban development. It is likely that this

population will decline significantly in the foreseeable future (Morey,

in litt. 1994; CNDDB 1997, Roberts 1997b). A third major population is

located in the vicinity of Dennery Canyon. The majority of this

population will be conserved in open space (City of San Diego 1995b,

City of San Diego and U.S. Fish and Wildlife Service 1996b). A

significant portion of the potential habitat within the population,

however, was impacted by grading in the spring of 1997 for a

residential-commercial project (Cal Terraces) (U.S. Fish and Wildlife

Service, in litt. 1997). This project resulted in preservation of 1.2

ha (3 ac) out of 7 ha (17.5 ac) of suitable habitat on the project

site. The fourth largest population (Proctor Valley) is partially

within an approved development (OGDEN 1992c, City of San Diego and U.S.

Fish and Wildlife Service 1996b, City of San Diego and U.S. Fish and

Wildlife Service 1997).

Several populations of Hemizonia conjugens have also been affected

by ORV activity on Otay Mesa. For example, about 12 ha (30 ac) of

suitable and occupied habitat at Dennery Canyon have been severely

impacted by ORV activities (B. McMillan, U.S. Fish and Wildlife

Service, pers. comm. 1997). Implementation of the MSCP requires that

these effects be alleviated.

Several other major populations of Hemizonia conjugens will be

largely conserved (Wolf Canyon, Otay Valley, Old Salt Creek, Jamacha

Hills); however, these populations will be adjacent to, or in proximity

to recreation or future development (OGDEN 1992c, City of San Diego and

U.S. Fish and Wildlife Service 1996b, Roberts 1997b). In addition,

populations that are conserved through the development process may be

affected by Federal and State activities not subject to the MSCP,

including State transportation projects (California Department of

Transportation), border fencing, ORV activity, and new facilities

(Immigration and Naturalization Service), and airport expansion

(Federal Aviation Administration). For example, one alternative for

State Route 125 may affect as much as 23 ha (57 ac) of H. conjugens

habitat. State Route 905 passes through suitable habitat and expansion

of this highway will likely reduce the extent of this habitat. At least

five populations of H. conjugens on Otay Mesa are at risk from United

States Immigration and Naturalization Service Border Patrol (Border

Patrol) activities due to the proximity of the U.S.-Mexican border. ORV

activity relating to Border Patrol activities has impacted and

potentially significantly reduced one major population (Spring Canyon)

(B. McMillan, pers. comm. 1997). These activities also impact

considerable suitable but currently unoccupied habitat on private land

on Otay Mesa. Another population may be impacted by a proposed Border

Patrol field station on Otay Mesa. To some degree those populations

covered under the MSCP will still be subject to the effects of habitat

fragmentation, ORV activity, and disturbance described previously in

this rule.

Monardella linoides ssp. viminea was previously known from 27

occurrences in the United States, 7 of which have been extirpated by

transportation projects and industrial development. Of the 5 remaining

occurrences with at least 100 individuals, none are currently

protected. The remaining populations of M. linoides ssp. viminea are

threatened by urban development, sand and gravel mining, ORV activity,

trampling, trash dumping, and erosion. One of the largest populations

(2,000 to 3,000 individuals) is located partially on private property,

partially on Federal land managed by the Navy, and partially on city-

owned property (Sycamore Canyon City Park). This population has been

damaged by ORVs and fire, factors that also threaten the other

remaining populations of this species. Two populations on Marine Corps

Air Station, Miramar land have been partially destroyed by road

construction. The other two large populations of M. linoides ssp.

viminea are on private property. One of these (approximately 340

individuals) is threatened by sand and gravel mining. The other

population, with approximately 200 individuals, is on property proposed

for development. Habitat for this species in Los Penasquitos City

Regional Park is degraded by stream erosion, trash dumping, and the

invasion of nonnative species. Another population in San Clemente Park,

owned by the City of San Diego, was reported to have approximately 60

plants in the early 1980's, but contained fewer than 35 plants in 1987

(CNDDB 1997).

Approximately 8,000 to 10,000 individuals of Dudleya stolonifera

are spread among 6 locations. Urban development and associated edge

effects (see ``Discussion of the Four Species'' and Factor E of the

``Summary of Factors Affecting the Species'' sections of this rule)

threaten several populations of D. stolonifera. Although the entire

range of this species is within the boundaries of the Central/Coastal

NCCP, three of the major populations representing 70 percent of the

species are found on private lands managed by nonparticipating

landowners. The population at the type locality (site of collection of

the specimen used to describe the species) for D. stolonifera is

directly adjacent to residential development in Aliso Canyon (Orange

County) and is declining due to increased shading and competition from

nonnative plants (F. Roberts, U.S. Fish and Wildlife Service, pers.

obs.). This population is also threatened by fuel modification (Marsh

1992), which includes modifying existing habitat to reduce the

immediate risk of fire (e.g., thinning vegetation, fire breaks,

disking, and mowing).

[[Page 54947]]

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

All four species addressed in this rule may be threatened with

vandalism and/or collection. Simply listing a plant species can

precipitate commercial or scientific interest, both legal and illegal,

which can threaten the species through unauthorized and uncontrolled

collection for both commercial and scientific purposes. The listing of

species as endangered or threatened publicizes their rarity and may

make them more susceptible to collection by researchers or curiosity

seekers (Mariah Steenson pers. comm. 1997, M. Bosch, U.S. Forest

Service in litt. 1997). Plants are particularly vulnerable to

vandalism, and rare or listed plants may be viewed as targets by

vandals who view their presence as a threat to future land use. Dudleya

stolonifera is known to be in cultivation, and is threatened by

overcollection. All species of Dudleya are vulnerable to collection and

D. stolonifera is listed as a CITES Appendix I species (Ayensu and

DeFilipps 1978). Field-collected specimens of D. stolonifera have been

found in southern California nurseries and are likely to be harvested

for private collections (Kei Nakai, horticulturalist, in litt. 1978,

and pers. comm. 1992). A Smithsonian report on endangered and

threatened plants in the United States considers all species of Dudleya

vulnerable to collection (Ayensu and DeFilipps 1978). Monardella

linoides ssp. viminea is also known to be in cultivation, and the

listing of this species could result in increased interest and possible

illegal collection. Collection has not been documented for the other

species in this rule.

C. Disease or Predation

Herbivory may threaten some populations of the plants contained in

this rule. For example, failure of the Acanthomintha ilicifolia

transplants at Quail Gardens was attributed primarily to rabbit

predation (Don Miller, Quail Gardens, pers. comm. 1992). One population

of Dudleya stolonifera appears to have increased in size significantly

after cattle grazing was eliminated (U.S. Fish and Wildlife Service,

unpubl. data, 1997). Threats from predation are not known to be a

factor for Hemizonia conjugens and Monardella linoides ssp. viminea.

D. The Inadequacy of Existing Regulatory Mechanisms

Existing regulatory mechanisms that could provide some protection

for these species include--(1) the Act in cases where these species

occur in habitat occupied by a listed species; (2) conservation

provisions under the Federal Clean Water Act; (3) listing under the

California Endangered Species Act (CESA); (4) the California

Environmental Quality Act (CEQA); (5) implementation of conservation

plans pursuant to the California NCCP program; (6) land acquisition and

management by Federal, State, or local agencies or by private groups

and organizations; (7) local laws and regulations; and (8) enforcement

of Mexican laws.

Federal Endangered Species Act

The Act may already afford protection to sensitive species if they

coexist with species already listed as threatened or endangered under

the Act. A number of federally listed species occur within the range of

the four plants discussed in this final rule. Protection afforded by

these species, however, is minimal due to lack of overlapping habitat

requirements.

The coastal California gnatcatcher is listed as a threatened

species under the Act, and it occurs in some of the areas occupied by

these four plant species. Significant populations of these plants,

however, occur in riparian scrub, chaparral, or grassland areas and,

therefore, do not benefit from conservation required for the California

gnatcatcher. For example, the open space on one development was

designed to conserve the majority of the California gnatcatchers within

the project boundary; however, only 40 percent of the Hemizonia

conjugens on the project site is conserved as a result of this design

(Tetra Tech 1996, City of San Diego and U.S. Fish and Wildlife Service

1996b). In another example, the Service consulted with the U.S. Army

Corps of Engineers (Corps) on the California gnatcatcher in regard to a

development proposal in the City of Carlsbad. The consultation included

a review of impacts to Acanthomintha ilicifolia. However, direct

benefits to the species were minimal (U.S. Fish and Wildlife Service,

in litt. February 22, 1996).

Several other listed species occur within the vicinity of the

species listed here but are largely restricted to vernal pools

(Pogogyne abramsii (San Diego mesa mint), Pogogyne nudiuscula (Otay

mesa mint), Riverside fairy shrimp (Streptocephalus wootoni), San Diego

fairy shrimp (Branchinecta sandiegoensis) and San Diego button-celery

(Eryngium aristulatum var. parishii)); riparian habitats (arroyo toad

(Bufo microscaphus californicus), California red-legged frog (Rana

aurora daytonii), and least Bell's vireo (Vireo bellii pusillus));

sandy coastal terraces (Pacific pocket mouse (Perognathus longimembris

pacificus)); or southern maritime chaparral (Arctostaphylos glandulosa

ssp. crassifolia, Baccharis vanessae, Chorizanthe orcuttiana, and

Verbesina dissita (big-leaved crown beard)). These habitats are

generally not occupied by any of the species in this final rule. Only

one out of six populations of Dudleya stolonifera occurs with Verbesina

dissita.

Conservation Agreements

Conservation agreements with other Federal agencies may reduce the

decline of some species so that listing as threatened or endangered is

no longer necessary. Conservation agreements with other Federal

agencies, however, would not appreciably benefit most of the species in

this rule. One of the four species, Dudleya stolonifera, is not known

to occur on Federal lands. Although Hemizonia conjugens is not

currently known from Federal lands, there may be potential habitat for

this species on Federal land on Otay Mesa. Several large populations of

Acanthomintha ilicifolia occur on Federal lands; however, these

populations account for only a small number of the existing populations

(5 of 32 populations). While a conservation agreement with the Forest

Service could provide for the long-term conservation of these few

populations, it is unlikely that such an agreement would preclude the

overall decline of the species.

About 20 percent of Monardella linoides ssp. viminea populations

occur on private land. The distribution of this species, characterized

by small populations, is extremely restricted. The majority of the

individual plants in the United States occur on Federal lands. These

lands are presently under control of the U.S. Marine Corps. At this

time there are no conservation agreements for this species with the

U.S. Marine Corps. The Service is currently reviewing the Draft

Integrated Natural Resource Management Plan for the Marine Corps Air

Station Miramar. No significant protection measures are outlined in the

draft beyond periodic monitoring. It is not clear what, if any,

specific protection measures will be adopted for this species in the

final version of the plan.

Conservation Provisions Under the Clean Water Act

Monardella linoides ssp. viminea could potentially be affected by

projects requiring a permit from the Corps under section 404 of the

Clean Water Act. However, there are no specific provisions that

adequately conserve rare

[[Page 54948]]

or candidate plant species. Although the other species listed in this

rule are not within habitat subject to Corps jurisdiction, inclusion of

these species in projects reviewed by the Corps may result in

consultation with the Service through interrelated and interdependent

effects. But this seldom results in significant conservation benefits

to upland species, such as Acanthomintha ilicifolia (U.S. Fish and

Wildlife Service, in litt. February 22, 1996).

State Laws and Regulation

Under provisions of the Native Plant Protection Act (chapter 10

section 1900 et seq. of the California Fish and Game Code) and CESA

(chapter 1.5 section 2050 et seq. of the Fish and Game Code), the

California Fish and Game Commission listed Acanthomintha ilicifolia

(1982), Hemizonia conjugens (1979), and Monardella linoides ssp.

viminea (1979) as endangered (CDFG 1996). Dudleya stolonifera was

listed as threatened by CDFG in 1987. Although both statutes prohibit

the ``take'' of State-listed plants (chapter 10 section 1908 and

chapter 1.5 section 2080), populations of three of the four species

have continued to decline. For example, one project in San Diego,

California, resulted in the elimination of a major population of H.

conjugens (CDFG 1994, CNDDB 1997) subsequent to the State listing of

the species. Although conditions of the State consultation required

that 5 ha (12 ac) of H. conjugens habitat be acquired to mitigate the

loss of the population, this has not occurred.

California Senate Bill 879, passed in 1997 and effective January 1,

1998, requires individuals and entities to obtain 2081(b) incidental

take permits to take listed species; however, the draft of proposed

regulations to implement Senate Bill 879 would except the prohibition

of take of listed plant species from major categories of activities,

including take incidental to agricultural operations, approved timber

harvest operations, mining assessment work, public works projects, and

removal or destruction of plants from building sites on private lands.

The extent to which the amended State Statute will afford protection to

State-listed plant species is uncertain at this time.

Acanthomintha ilicifolia has benefitted from State listing. Since

the species was listed in 1982, direct impacts to the species from

development projects have been reduced. The configuration of remaining

populations, however, is not conducive to long-term conservation; in

many cases the development footprint is immediately adjacent or in

proximity to A. ilicifolia populations. Consequently, habitat is

degraded and risks from nonnative plant replacement, trampling,

fragmentation, and isolation increase (See Factor A of the ``Summary of

Factors Affecting the Species'' section of this rule).

The majority of the known populations of Acanthomintha ilicifolia,

Dudleya stolonifera, and Hemizonia conjugens occur on privately-owned

land. Actions on private lands that may significantly affect biological

resources, including the plants listed in this rule, require review

under CEQA. The CEQA requires that significant biological impacts be

addressed. Local lead agencies empowered to uphold and enforce the CEQA

have made determinations that have affected, or will adversely affect,

these species and their habitats.

The CEQA requires that a project proponent publicly disclose the

potential environmental impacts of proposed projects. The public agency

with the primary authority or jurisdiction over the project is

designated as the lead agency and is responsible for conducting review

of the project and consulting with other agencies concerned with

resources affected by the project. Required biological surveys are

sometimes inadequate and mitigation measures used to condition project

approvals are sometimes experimental and do not always adequately

guarantee protection of sustainable populations of the species

considered in this rule. Section 15065 of the CEQA guidelines requires

a finding of significance if a project has the potential to ``reduce

the number or restrict the range of a rare or endangered plant or

animal.'' CEQA decisions are also subject to overriding social and

economic considerations, which allows the CEQA lead agency to approve a

project with significant adverse effects on a listed plant species

where the agency concludes that overriding considerations justify

approval of the project.

As a case in point, a CEQA document reporting biological surveys

conducted on a large parcel east of Chula Vista indicated the

approximate location of Hemizonia conjugens within the project site,

but included no data on relative population size (OGDEN 1992b).

Regarding a separate project near the Sweetwater Reservoir, the CEQA

document disclosed that proposed development associated with a project

would result in significant declines to the largest known population of

H. conjugens and result in preservation of less than 30 percent of the

individuals within the project area (OGDEN 1992a, Tetra Tech, Inc.

1996). Later coordination with the State and Service increased

preservation within the proposed project. In another example, a project

on west Otay Mesa was proposed that effectively would have eliminated

the majority of H. conjugens habitat within the project area (City of

San Diego 1993). Nonetheless, statements of overriding considerations

were developed, and these projects were approved.

Transplantation and relocation projects are frequently used to

compensate for the loss of rare plant species under CEQA. Hall (1987)

documents several attempts at transplanting Acanthomintha ilicifolia,

Hemizonia conjugens and Monardella linoides ssp. viminea. In one

transplantation project for A. ilicifolia, maintenance and monitoring

was scheduled for a period of 5 years. Subsequently, all records of the

project were lost and the new property owner claimed no responsibility

for the project. This site was destroyed by trash dumping and ORV use

(Hall 1987). One year after 45 individuals of M. linoides ssp. viminea

were transplanted by the California Department of Transportation, only

four had survived (Hall 1987, Kreager 1988). Of the 53 transplantation,

relocation or reintroduction projects reviewed, only 15 percent were

considered to be fully successful. None of these successful projects

included A. ilicifolia, H. conjugens, or M. linoides ssp. viminea.

Transplantation has not yet been demonstrated to provide for the long-

term viability of any of the four species listed in this rule.

Regional Planning Efforts

In 1991, the State of California established the NCCP program to

address conservation needs of natural ecosystems throughout the State.

The focus of the current planning program is the coastal sage scrub

community in southern California, although other vegetation communities

are being addressed in an ecosystem approach. Acanthomintha ilicifolia,

Dudleya stolonifera, Hemizonia conjugens, and Monardella linoides ssp.

viminea are currently covered under the MSCP and the Central/Coastal

Subregional NCCP/Habitat Conservation Plan (Central/Coastal NCCP) of

Orange County, California, and are being considered for inclusion as

covered species under the MHCP.

The Central/Coastal NCCP of Orange County was approved in July of

1996. Only one of the four species (Dudleya stolonifera) occurs within

the Central/

[[Page 54949]]

Coastal NCCP. The entire range of this species lies within this

subregion, and it is considered a ``covered species,'' but only on

lands owned or controlled by participating landowners. ``Covered

species'' are those species that will be adequately conserved by a

plan's proposed preservation and management to provide long-term

preservation within a Habitat Conservation Planning Area or NCCP

subregion. Three of the four major populations of Dudleya stolonifera,

including about 70 percent of all individuals and one minor population,

are situated on lands managed by nonparticipating landowners within the

Central/Coastal NCCP and, therefore, are not under the jurisdiction of

the plan.

Since the publication of the proposed rule, the MSCP regional

planning effort in southwestern San Diego County, has been finalized

and submitted to the Service as part of several applications for

section 10(a)(1)(B) incidental take permits for 85 species, including

Acanthomintha ilicifolia, Hemizonia conjugens, and Monardella linoides

ssp. viminea. The Service and the City of San Diego have jointly

prepared a Recirculated Environmental Impact Statement, Issuance of

Take Authorizations for Threatened and Endangered Species due to urban

Growth within the (MSCP) planning area. This document, released on

August 30, 1996, and finalized in December 1996, assesses the effects

of land-use decisions that will be made by local jurisdictions to

implement the plan and the effects of issuing the incidental take

permit for the 85 species. A permit was issued to the City of San Diego

in July, 1997, and to the County of San Diego in March 1998. A decision

on permit issuance is expected for Chula Vista within the next year.

The MSCP sets aside preservation areas and provides for monitoring and

management for the 85 covered species addressed in the permit

application, including Acanthomintha ilicifolia, Hemizonia conjugens,

and Monardella linoides ssp. viminea.

Four of the 11 major populations (3,000 plants or more) of

Acanthomintha ilicifolia within the United States occur within the MSCP

subregion (Roberts 1997a). The Service believes that three of these

four populations will be conserved by the MSCP. This species is also

included on the list of narrow endemics under the MSCP, which requires

jurisdictions to specify and implement measures in their subarea plan

to avoid or minimize impacts to all populations (including 3 additional

major populations). Significant populations of A. ilicifolia, however,

are located outside the MSCP subregion, including four major

populations that occur on lands managed by the Forest Service, and one

additional major population that occurs east of the MSCP subregion. The

MHCP planning area contains a single major population of A. ilicifolia.

The MHCP, which will include the Carlsbad Habitat Management Plan (HMP)

program, is still in the early developmental phase, and thus it is

uncertain if and what level of protection will be provided for A.

ilicifolia.

All of the United States populations of Hemizonia conjugens occur

within the MSCP subregion. Nine of the 12 major populations, supporting

about 35 percent of the individuals, will be adequately conserved by

the MSCP. This species is on the MSCP list of narrow endemics, which

requires jurisdictions to specify and implement measures in their

subarea plan to avoid or minimize impacts. The MSCP also requires

management of this species to address edge effects.

However, several other large populations, comprising about 80

percent of individuals, occur within the Chula Vista Subarea Planning

Area of the MSCP. The Chula Vista Subarea Plan has not been submitted

to the Service for approval. In addition, Hemizonia conjugens likely

will continue to be subject to significant impacts from projects and

activities not subject to the MSCP (e.g., Border Patrol activities,

State and Federal transportation projects (e.g., State Route 125 and

Interstate 905), Federal Aviation Administration projects, Department

of Defense activities, utility lines, and pipelines).

Although about 95 percent of the United States range of Monardella

linoides ssp. viminea occurs within the MSCP subregion, only about 20

percent occurs outside Marine Corps Air Station, Miramar. Therefore,

the majority of the populations are not subject to MSCP jurisdiction.

At least one additional small population occurs within the Poway

Habitat Conservation Plan area. This species likely will continue to be

subject to significant impacts from activities not subject to the MSCP

(e.g., sand and gravel mining, State and Federal transportation

projects, Department of Defense activities, pipelines and utility

lines).

Land Acquisition and Management

Land acquisition and management by State or local agencies or by

private groups and organizations have contributed to the protection of

some localities containing the species included in this rule. These

efforts, as discussed below, are inadequate, however, to assure the

long-term survival of these four species. Nine of the 32 populations of

Acanthomintha ilicifolia are on public lands (Penasquitos Park and

Mission Trails Regional Park) or on lands managed by the Forest

Service, including six major populations; however, these populations

account for only about 30 percent of the known individual plants.

Populations on Federal land (Cleveland National Forest) have been

negatively affected by grazing, and illegal dumping (Winter 1991,

Bauder, McMillan, and Kemp 1994). Two of the six populations, including

one major population, of Dudleya stolonifera are within preserves

(Laguna Laurel Ecological Preserve and Irvine Coast Wilderness Regional

Park). The three other major populations of this species are on private

land. Several small populations of Monardella linoides ssp. viminea

occur on Penasquitos Preserve; however, the majority of plants in this

species occurs outside preserve lands. Nine major populations of

Hemizonia conjugens will be conserved under the MSCP.

The four plant species also occur in ``dedicated'' open space

frequently in association with development projects. These areas are

often specifically set aside for conservation as required by local and

County project approvals or the CEQA, and are managed by private

organizations, individuals, corporations, or local jurisdictions. Open

space dedications, however, do not necessarily incorporate the

principles of conservation biology. As a result, many are poorly

configured or too small to ensure long-term preservation of these

species (see Factor E of the ``Summary of Factors Affecting the

Species'' section of this rule). County open space designations within

General Development Plans are subject to amendments and, therefore,

cannot be considered as permanent conservation.

Local Laws, Regulations, and Ordinances

The four species in this rule have been identified as sensitive

under various local laws, regulations, and ordinances. However,

development projects continue to be approved and implemented with

designs that do not preserve populations or habitat for the species

listed in this rule, or that contribute to further isolation and

fragmentation of populations.

Mexican Laws

The ranges of Acanthomintha ilicifolia, Hemizonia conjugens, and

Monardella linoides ssp. viminea extend

[[Page 54950]]

into northern Baja California, Mexico. Mexico has laws that could

provide protection to rare plants; however, enforcement of these laws

is lacking (Joe Quiroz, The Nature Conservancy, Pers. Comm. 1991).

On July 29, 1983, Dudleya stolonifera was included in Appendix I of

the Convention on International Trade in Endangered Species of Wild

Fauna and Flora (CITES). CITES is a treaty established to prevent

international trade that may be detrimental to the survival of plants

and animals. Generally, both import and export permits are required

from the importing and exporting countries before an Appendix I species

may be shipped, and Appendix I species may not be exported for

primarily commercial purposes. But plants that are certified by the

Service as artificially propagated in accordance with CITES conference

resolutions may be exported for commercial purposes with only CITES

export documents from the exporting country. CITES permits may not be

issued if the export will be detrimental to the survival of the species

or if the specimens were not legally acquired. CITES does not regulate

take or domestic trade.

E. Other Natural or Manmade Factors Affecting Their Continued Existence

Dudleya stolonifera and Monardella linoides ssp. viminea are

threatened with extinction by virtue of their small population sizes.

Chance events, such as floods, fires, or drought, can substantially

reduce or eliminate small populations and increase the likelihood of

extinction. For example, in October 1993, a wildfire burned about

10,400 ha (26,000 ac) of the San Joaquin Hills in Orange County. Three

of the six populations of D. stolonifera were within the burned area.

The two smaller populations were significantly affected by the fire and

potentially eliminated.

In addition, small populations are threatened by inbreeding

depression. Small populations can have significantly lower germination

rates than larger populations of the same species due to high levels of

homozygosity (Menges 1990). Furthermore, Acanthomintha ilicifolia and

Hemizonia conjugens are annuals that undergo large population

fluctuations from year to year. Annuals may not have a persistent seed

bank or may be unable to recolonize areas of suitable habitat due to

dispersal barriers such as intervening development. These populations

are particularly vulnerable to local extirpations.

The San Diego Water Authority periodically discharges as much as 3

million gallons of water into dry water courses that support Monardella

linoides ssp. viminea on Marine Corps Air Station, Miramar lands (Susan

Wynn, U.S. Fish and Wildlife Service, pers. comm. 1997). Water

discharge outside the rainy season would affect this species by

disrupting dispersal and by possibly eliminating mature plants.

Although recent coordination between the Water Authority and the Navy

has reduced the likelihood of these events, the threat remains.

Nonnative grass and forb species have invaded many of southern

California's plant communities. Their presence and abundance is

generally an indirect result of habitat disturbance by development,

mining, grazing, disking, and alteration of hydrology. The invasion of

both native and nonnative wetland plant species as a result of altered

drainage patterns threatens habitat for Monardella linoides ssp.

viminea (Scheid 1985).

The effects of competition with nonnative species is most

problematic immediately adjacent to urban areas and in habitat isolated

or fragmented by development (Alberts et al., 1991). Acanthomintha

ilicifolia is particularly sensitive to nonnative competition, and this

factor has contributed to significant decline in many populations of

this species (Bauder, McMillan, and Kemp 1994). Although more tolerant

of nonnative competition, Hemizonia conjugens populations are also

depressed by presence of dense populations of nonnative species (S.

Morey, in litt. 1994, CNDDB 1997). Grazing negatively affects A.

ilicifolia by increasing erosion, contributing to soil compaction, and

introducing a variety of nonnative grasses that exclude A. ilicifolia

from areas of otherwise suitable habitat (Winter 1991). Several

populations of Dudleya stolonifera are threatened by trampling and the

invasion of nonnative plant species (Marsh 1992).

The Service has carefully assessed the best scientific and

commercial information available regarding the past, present, and

future threats faced by these four species in determining to make this

rule final. Much of the remaining habitat for these species is

degraded. Based on this evaluation, the Service determines Monardella

linoides ssp. viminea to be in danger of extinction throughout all or a

significant portion of its range. This species persists in small,

isolated populations surrounded by urban or agricultural development.

This species is in danger of extinction throughout all or a portion of

its range due to habitat alteration and destruction resulting from

urban, recreational, and agricultural development; fuel modification;

trampling from recreational activities; inadequacy of regulatory

mechanisms; and competition from exotic plant species. Additionally,

although populations of this species occur within the MSCP subregion of

San Diego County, California, the majority of M. linoides ssp. viminea

populations occur on Marine Corps Air Station, Miramar lands that are

not subject to the MSCP.

For reasons discussed below, the Service finds that Dudleya

stolonifera, Hemizonia conjugens, and Acanthomintha ilicifolia are

likely to become endangered within the foreseeable future throughout

all or a significant portion of their ranges. Dudleya stolonifera and

H. conjugens for the most part persist as small, isolated populations

surrounded by urban or agricultural development.

Dudleya stolonifera is at risk as a result of urban proximity,

recreational activities, potential overcollection, and exotic

competition. Because of the limited number and area of the populations,

D. stolonifera is also at risk from fire and fire management related

activities. Although the entire range of D. stolonifera is within the

Central/Coastal NCCP subregion, most of the populations are not within

the preserve area. Preserve design, however, will reduce the likelihood

that significant habitat altering projects will be proposed that

substantially impact these populations. The species also is situated in

rugged terrain which offers some protection from urbanization.

The range of Hemizonia conjugens is restricted to a single planning

subregion (MSCP) in the United States. Although the species continues

to be threatened by approved and proposed urban development, ORV, and

trampling, about 65 percent of the major populations will be preserved

through the MSCP. The Service has determined that the protection

afforded from MSCP preservation has reduced the likelihood of

extinction of this species in the foreseeable future. However, the

species is significantly threatened by activities that are not subject

to MSCP jurisdiction (e.g., State Route 125, Immigration and

Naturalization Service (INS) activities). Therefore, the Service has

determined that threatened is the appropriate designation for this

species.

Acanthomintha ilicifolia populations are threatened by habitat

degradation and impacts from trampling, ORV activity, nonnative plants,

fragmentation, and isolation either directly or indirectly due to the

proximity to development of protected areas. Although the number of

populations of A. ilicifolia has declined,

[[Page 54951]]

about 65 percent of the remaining major populations occur within the

MSCP subregion, and six of these populations will be conserved by the

MSCP. An additional major population may be protected by the MHCP, and

four major populations are on lands managed by the Forest Service.

Therefore, the Service has determined that threatened is the

appropriate designation for this species.

Critical Habitat

Critical habitat is defined in section 3 of the Act as the specific

areas within the geographical area occupied by a species, at the time

it is listed in accordance with the Act, on which are found those

physical or biological features essential to the conservation of the

species and that may require special management considerations or

protection; and specific areas outside the geographical area occupied

by the species at the time it is listed, upon determination that such

areas are essential for the conservation of the species.

``Conservation'' means the use of all methods and procedures needed to

bring the species to the point at which listing under the Act is no

longer necessary.

Section 4(a)(3) of the Act, as amended, and the Service's

implementing regulations (50 CFR 424.12) require that, to the maximum

extent prudent and determinable, the Secretary designate critical

habitat at the time a species is listed as endangered or threatened.

Service regulations (50 CFR 424.12(a)(1)) state that designation of

critical habitat is not prudent when (1) the species is threatened by

taking or other human activity, and identification of critical habitat

can be expected to increase the degree of threat to the species, and/or

(2) such designation of critical habitat would not be beneficial to the

species.

Section 7(a)(2) of the Act requires Federal agencies to consult

with the Service to ensure that any action authorized, funded, or

carried out by such agency, does not jeopardize the continued existence

of a federally listed species or does not destroy or adversely modify

designated critical habitat. The requirement that Federal agencies

refrain from contributing to the destruction or adverse modification of

critical habitat in any action authorized, funded or carried out by

such agency (agency action) is in addition to the section 7 prohibition

against jeopardizing the continued existence of a listed species; and

it is the only mandatory legal consequence of a critical habitat

designation. The Service's implementing regulations (50 CFR part 402)

define ``jeopardize the continuing existence of'' and ``destruction or

adverse modification of'' in very similar terms. To jeopardize the

continuing existence of a species means to engage in an action ``that

reasonably would be expected to reduce appreciably the likelihood of

both the survival and recovery of a listed species.'' Destruction or

adverse modification of habitat means an ``alteration that appreciably

diminishes the value of critical habitat for both the survival and

recovery of a listed species in the wild by reducing the reproduction,

numbers, or distribution of that species.'' Common to both definitions

is an appreciable detrimental effect to both the survival and recovery

of a listed species. An action that appreciably diminishes habitat for

recovery and survival may also jeopardize the continued existence of

the species by reducing reproduction, numbers, or distribution because

negative impacts to such habitat may reduce population numbers,

decrease reproductive success, or alter species distribution through

habitat fragmentation.

For a listed plant species, an analysis to determine jeopardy under

section 7(a)(2) would consider loss of the species associated with

habitat impacts. Such an analysis would closely parallel an analysis of

habitat impacts conducted to determine adverse modification of critical

habitat. As a result, an action that results in adverse modification

also would almost certainly jeopardize the continued existence of the

species concerned. Because habitat degradation and destruction is the

primary threat to these species, listing them will ensure that section

7 consultation occurs, and potential impacts to the species and their

habitat are considered, for any Federal action that may affect these

species. In many cases, listing also ensures that Federal agencies

consult with the Service even when Federal actions may affect

unoccupied suitable habitat where such habitat is essential to the

survival and recovery of the species. This is especially important for

plant species where consideration must be given to the seed bank

component of the species, and associated pollinators and dispersal

agents, which are not necessarily visible in the habitat throughout the

year. In practice, the Service consults with Federal agencies proposing

projects in areas where there is potentially suitable but unoccupied

habitat, particularly when the species was known to recently occur

there or in similar nearby areas, or the area is known to harbor seed

banks.

Apart from section 7, the Act provides no additional protection to

lands designated as critical habitat. Designating critical habitat does

not create a management plan for the areas where the listed species

occurs; does not establish numerical population goals or prescribe

specific management actions (inside or outside of critical habitat);

and does not have a direct effect on areas not designated as critical

habitat.

Critical habitat would provide no benefit to the species addressed

in this rule on non-Federal lands (i.e., private, State, County or City

lands) beyond that provided by listing. Critical habitat provides

protection on non-Federal lands only if there is Federal involvement (a

Federal nexus) through authorization or funding of, or participation,

in a project or activity on non-Federal lands. In other words,

designation of critical habitat on non-Federal lands does not compel or

require the private or other non-Federal landowner to undertake active

management for the species or to modify any activities in the absence

of a Federal nexus. Possible Federal agency involvement or funding that

could involve the species addressed in the rule on non-Federal lands

include the Corps through section 404 of the Clean Water Act, the

Federal Department of Housing and Urban Development, Federal Aviation

Administration, the INS, and the Federal Highway Administration.

Federal involvement, if it does occur, will be addressed regardless of

whether critical habitat is designated because interagency coordination

requirements such as the Fish and Wildlife Coordination Act (FWCA) and

section 7 of the Act are already in place. When a plant species is

listed, activities occurring on all lands subject to Federal

jurisdiction that may adversely affect the species would prompt the

requirement for consultation under section 7(a)(2) of the Act,

regardless of whether critical habitat has been designated.

While a designation of critical habitat on private lands would only

affect actions where a Federal nexus is present and would not confer

any additional benefit beyond that already provided by section 7

consultation because virtually any action that would result in an

adverse modification determination would also likely jeopardize the

species, a designation of critical habitat on private lands could

result in a detriment to the species. This is because the limited

effect of a critical habitat designation on private lands is often

[[Page 54952]]

misunderstood by private landowners whose property boundaries could be

included within a general description of critical habitat for a

specific species. Landowners may mistakenly believe that critical

habitat designation will be an obstacle to development and impose

restrictions on their use of their property. Unfortunately, inaccurate

and misleading statements reported through widely popular medium

available worldwide, are the types of misinformation that can and have

led private landowners to believe that critical habitat designations

prohibit them from making use of their private land when, in fact, they

face potential constraints only if they need a Federal permit or

receive Federal funding to conduct specific activities on their lands.

These types of misunderstandings, and the fear and mistrust they create

among potentially affected landowners, make it very difficult for the

Service to cultivate meaningful working relationships with such

landowners and to encourage voluntary participation in species

conservation and recovery activities. Without the participation of

landowners in the recovery process, the Service will find it very

difficult to recover species that occur on non-Federal lands.

A designation of critical habitat on private lands could actually

encourage habitat destruction by private landowners to rid themselves

of the perceived endangered species problem. Listed plants have limited

protection under the Act, particularly on private lands. Section

9(a)(2) of the Act, implemented by regulations at 50 CFR section 17.61

(endangered plants) and 50 CFR 17.71 (threatened plants) prohibits (1)

removal and reduction of listed plant species to possession from areas

under Federal jurisdiction, or their malicious damage or destruction on

areas under Federal jurisdiction; or (2) removal, cutting, digging up,

or damaging, or destroying any such species in knowing violation of any

State law or regulation including State criminal trespass laws.

Generally, on private lands, collection of, or vandalism to, listed

plants must occur in violation of State law to be a violation of

section 9 of the Act. The Service is not aware of any State law in

California that generally regulates or prohibits the destruction or

removal of federally listed plants on private lands (see section 9

discussion under ``Available Conservation Measures'' section of this

rule). Thus, a private landowner concerned about perceived land

management conflicts resulting from a critical habitat designation

covering his property would likely face no legal consequences if the

landowner removed the listed species or destroyed its habitat. For

example, in the spring of 1998, a Los Angeles area developer buried one

of the only three populations of the endangered Astragalus brautonii in

defiance of efforts under the CEQA to negotiate mitigation for the

species (T. Thomas, U.S. Fish and Wildlife Service). The designation of

critical habitat involves the publication of habitat descriptions and

mapped locations of the species in the Federal Register, increasing the

likelihood of potential search and removal activities at specific

sites.

The Service acknowledges that in some situations critical habitat

designation may provide some value to the species by notifying the

public about areas important for the species conservation and calling

attention to those areas in special need of protection. However, when

this limited benefit is weighed against the detriment to plant species

associated with the widespread misunderstanding about the effects of

such designation on private landowners and the environment of mistrust

and fear that such misunderstanding can create, the Service concludes

that the detriment to the species from a critical habitat designation

covering non-Federal lands outweighs the educational benefit of such

designation and that such designation is, therefore, not prudent. The

information and education process can more effectively be handled by

working directly with landowners and communities during the recovery

planning process and by the section 7 consultation and coordination

where the Federal nexus exists. The use of these existing processes

will impart the same knowledge to the landowners that critical habitat

designation would, but without the confusion and misunderstandings that

may accompany a critical habitat designation.

For similar reasons, the Service also concludes that there would be

no additional benefits to the species covered in this rule beyond the

benefits conferred by listing from a designation of critical habitat on

Federal lands. In the case of each of these plant species, the existing

occurrences of the species are known by the DOD and the U.S. Forest

Service and any action that would result in adverse modification would

almost certainly result in likely jeopardy to the species, so that a

designation of critical habitat on Federal lands would not confer any

additional benefit on the species. On the other hand, particularly on

National Forest System lands, a designation of critical habitat could

increase the threats to these species from vandalism and collection

similar to the threats identified in response to listing a species

(Oberbauer 1992, Beauchamp in litt. 1997). Simply listing a species can

precipitate commercial or scientific interest, both legal and illegal,

which can threaten the species through unauthorized and uncontrolled

collection for both commercial and scientific purposes. The listing of

species as endangered or threatened publicizes their rarity and may

make them more susceptible to collection by researchers or curiosity

seekers (Mariah Steenson pers. comm. 1997, M.Bosch, U.S. Forest Service

in litt. 1997). For example, the Service designated critical habitat

for the mountain golden heather (Hudsonia montana), a small shrub not

previously known to be commercially valuable or particularly

susceptible to collection or vandalism. After the critical habitat

designation was published in the Federal Register, unknown persons

visited a Forest Service wilderness area in North Carolina where the

plants occurred and, with a recently published newspaper article and

maps of the plant's critical habitat designation in hand, asked about

the location of the plants. Several plants the Service had been

monitoring were later found to be missing from unmarked Service study

plots. (Nora Murdock, U.S. Fish and Wildlife Service, pers. comm.

1998).

The Service has weighed the lack of overall benefits of critical

habitat designation beyond that provided by listing as threatened or

endangered, along with the benefits of public notification against the

detrimental effects of the negative public response and

misunderstanding of what critical habitat designation means and the

increased threats of illegal collection and vandalism, and has

concluded that critical habitat designation is not prudent for

Acanthomintha ilicifolia (San Diego thornmint), Monardella linoides

ssp. viminea (willowy monardella), Hemizonia conjugens (Otay tarplant),

and Dudleya stolonifera (Laguna Beach liveforever). The specific

reasons why designation of critical habitat is not prudent for each of

these species are addressed in the following discussion.

Dudleya stolonifera

Dudleya stolonifera occurs within the Central/Coastal NCCP.

However, only one of the six known populations and one minor population

are considered to be adequately conserved on lands designated as a

preserve. Three of the four major Dudleya stolonifera

[[Page 54953]]

populations, representing approximately 70 percent of the known

individuals, occur on private lands whose owners are not participating

in the Central/Coastal NCCP process. Federal involvement on these lands

is unlikely because they do not involve wetland areas or any other

activity associated with Federal agencies. If, in the future, there is

Federal involvement through permitting or funding, such as through the

Federal Highway Administration, then interagency coordination and

consultation required by section 7 would be in effect if such actions

may affect this species, once listed. As previously discussed, an

analysis to determine jeopardy under section 7(a)(2) would consider

loss of individual plants associated with habitat impacts. Such an

analysis would closely parallel any analysis of habitat impacts

conducted to determine adverse modification of critical habitat. A

jeopardy finding would be equivalent to a finding of adverse

modification of critical habitat. Therefore, there would be no

additional conservation benefit to the species from designation of

critical habitat beyond that provided by the species' listing.

All species of Dudleya are vulnerable to collection (Ayensu and

DeFilipps 1978). D. stolonifera is listed as a CITES Appendix I species

(see discussion under Factor D). Simply listing this species under the

Act would publicize the rarity of the plants and could make them

attractive to researchers, curiosity seekers or collectors of rare

plants. Field collected specimens have been reported in nursery trade

(Kei Nakai in litt. and discussion under Factor B of the ``Summary of

Factors Affecting the Species'' section of this rule), most likely

because of its attractiveness and accessibility, as well as taxonomic

interest; Publication of precise maps and descriptions of critical

habitat would likely increase the degree of threat to this species from

collection or vandalism and habitat degradation associated with such

collection and vandalism, and would likely contribute to its decline.

Therefore, the Service finds that critical habitat is not prudent

for Dudleya stolonifera at this time because such designation would

increase the risk of illegal collection and may increase the risk of

vandalism. Furthermore, the Service believes that no benefit over that

provided by listing would result from identification of critical

habitat on the non-Federal lands where this species occurs, and

designation would likely be detrimental for the reasons discussed

above. The identification of critical habitat would not increase

management or conservation efforts on State or private lands and could

impair those efforts. The Service believes that conservation of this

species on private lands can best be addressed by working directly with

landowners and communities during the recovery planning process and

through the interagency coordination and consultation processes of

section 7 should there be any future unforeseen Federal involvement.

Acanthomintha ilicifolia

Acanthomintha ilicifolia occurs on Federal and private lands, both

inside and outside areas covered by the MSCP. Four of the eleven major

populations are on Federal (Forest Service) lands. The Forest Service

is aware of the occurrences and habitat of the species on their lands.

The Cleveland National Forest consults with the Service under section 7

for activities related to other listed species in the area and would be

subject to similar requirements as a result of this listing.

Designation of critical habitat would not necessarily require the

Forest to increase or change their commitment or management efforts for

this species, only to avoid adverse modification of such critical

habitat.

Four populations are on private lands within the MSCP planning

subregion, and landowners and regional governments are aware of these

occurrences. Three of these populations are considered adequately

conserved; the fourth of these may be protected by the MHCP in the

future. The remaining major populations are on private lands outside of

the MSCP planning area where no Federal involvement is anticipated. If,

in the future, there is Federal involvement through permitting or

funding, such as through the Federal Highway Administration, section 7

consultation would be required if such action may affect the species,

once listed. As previously discussed, an analysis to determine jeopardy

under section 7(a)(2) would consider loss associated with habitat

impacts. Such an analysis would closely parallel any analysis of

habitat impacts conducted to determine adverse modification of critical

habitat and would result in identical section 7 findings. A jeopardy

finding would be equivalent to a finding of adverse modification of

critical habitat.

The Service finds that critical habitat is not prudent for

Acanthomintha ilicifolia at this time because such designation would

provide no benefit over that provided by listing on privately owned

lands where this species occurs. Landowners where the species occur are

aware of its presence and status. Critical habitat designation on these

private lands would not change the way those lands are managed or

require specific management actions to take place, and could be

detrimental because of potential landowner misunderstandings about the

real effects of critical habitat designation on private lands. The

species is currently known and managed on Federal lands; no change in

management would occur as a result of critical habitat designation and

all activities that may affect the species on these Federal lands would

be subject to section 7 consultation. The Service believes that the

conservation of this species on private lands can best be addressed by

working directly with landowners and communities during the recovery

planning process and through the interagency coordination and

consultation processes of section 7 for those activities with Federal

agency involvement.

Hemizonia conjugens

Hemizonia conjugens occurs on private lands, all of which are

situated within the MSCP subregion. If there is future Federal

involvement such as through actions funded, permitted or conducted by

the Federal Highway Administration, Federal Aviation Administration, or

Border Patrol activities, then section 7 consultation would be required

if the activities may affect the species, once listed. As previously

discussed, an analysis to determine jeopardy under section 7(a)(2)

would consider loss associated with habitat impacts. Such an analysis

would closely parallel any analysis of habitat impacts conducted to

determine adverse modification of critical habitat and result in

identical section 7 findings. A jeopardy finding would be equivalent to

a finding of adverse modification of critical habitat.

Private lands support all known populations of Hemizonia conjugens

in the United States. Nine major populations, which support about 35

percent of the individuals, will be adequately conserved by the MSCP.

The Service is unable to state at this time if the three remaining

major populations will be adequately conserved under MSCP, because the

subarea plan for the area containing the largest population (Chula

Vista) has not yet been approved by the Service.

The Service has determined that the protection provided by MSCP

preservation has reduced the likelihood of extinction of this species

in the foreseeable future. But the species is threatened by activities

not subject to MSCP jurisdiction, such as State

[[Page 54954]]

transportation projects (California Department of Transportation),

border fencing, ORV activity, new facilities (Immigration and

Naturalization Service), and airport expansion (Federal Aviation

Administration). Any of these effects associated with a Federal nexus

will be subject to section 7 consultation, as previously discussed. All

existing sites are either currently known by the landowners, or the

appropriate landowners will be notified prior to publication of this

rule. The Service believes that the conservation of this species on

private lands can best be addressed by working directly with landowners

and communities during the recovery planning process, and through the

interagency coordination and consultation processes of section 7 for

those activities with Federal agency involvement. Therefore, the

Service finds that critical habitat is not prudent for Hemizonia

conjugens at this time because such designation would not be of benefit

to the species. The Service believes that no benefit over that provided

by listing would result from identification of critical habitat on

privately owned land where this species occurs, and it could be

detrimental because of potential landowner misunderstandings about the

real effects of critical habitat designation on private lands.

Monardella linoides ssp. viminea

The entire U.S. distribution of Monardella linoides ssp. viminea

occurs within the MSCP subregion. However, nearly 80 percent of the

populations of M. linoides ssp. viminea are found on Marine Corp Air

Station, Miramar lands that are not under jurisdiction of the MSCP. One

of the largest populations (2,000 to 3,000 individuals) is located

partially on private property, partially on Federal land managed by the

Navy, and partially on City-owned property (Sycamore Canyon City Park).

The DOD is aware of the species' presence, consults with the Service

under section 7 for activities related to other listed species in the

area and would be subject to these same requirements when this species

is listed. Likewise, because of this plant's riparian habitat, the

Corps is aware of the occurrences and habitat of this plant and the

requirement for consultation under section 7 of the Act prior to

issuance of permits under section 404 of the Clean Water Act.

Designation of critical habitat would not increase the commitment of

management efforts of the DOD or the Corps. At this time there are no

conservation agreements for this species; however, the Service is

currently reviewing the Draft Integrated Natural Resource Management

Plan for the Marine Corps Air Station, Miramar. Although the draft does

not provide specific protection measures, it does include periodic

monitoring, and with input from the Service, more specific conservation

measures may be added into the final version of the plan.

The Service has determined that the populations of Monardella

linoides ssp. viminea covered by the MSCP will be adequately protected

by the participating jurisdictions and landowners. This species likely

will continue to be impacted by activities not subject to the MSCP, but

those activities are potentially subject to section 7 consultation

(e.g., sand and gravel mining, State and Federal transportation

projects, Department of Defense activities, pipelines and utility

lines). On non-Federal lands, where about 20 percent of the populations

of Monardella linoides ssp. viminea exist, critical habitat would

provide no additional benefits above that provided by listing because

it would not require any special management actions, and there is not

likely to be any future Federal involvement. The existing sites are

either currently known by the landowners, or the affected landowners

will be notified prior to publication of this rule. On Federal lands,

and on non-Federal lands where a Federal nexus exists, section 7

consultation would be required for any action that may affect the

species, once listed. As previously discussed, an analysis to determine

jeopardy under section 7(a)(2) would consider loss associated with

habitat impacts. Such an analysis would closely parallel any analysis

of habitat impacts conducted to determine adverse modification of

critical habitat and result in identical section 7 findings. A jeopardy

finding would be equivalent to a finding of adverse modification of

critical habitat.

Monardella linoides ssp. viminea is found in cultivation, and the

listing of this species could result in increased interest and illegal

collection. Listing of plant species can generate publicity, which may

precipitate commercial and scientific interest in the species (M.

Steenson pers. comm. 1997, M. Bosch in litt. 1997). This interest can

threaten the species through illegal collection and by excessive

trampling of plants by individuals interested in seeing rare plants.

Publication of precise maps and descriptions of critical habitat would

increase the degree of threat to this species from collection or

vandalism and could contribute to its decline (see Factor B of the

``Summary of Factors Affecting the Species'' section of this final rule

for additional discussion of collection threats).

Therefore, the Service finds that critical habitat is not prudent

for Monardella linoides ssp. viminea at this time because such

designation would not be of benefit to the species, and could increase

the threat of illegal collection. The Service believes that no benefit

over that provided by listing would result from identification of

critical habitat on privately owned land where this species occurs. The

Service believes that the conservation of this species can best be

addressed by working directly with landowners and communities during

the recovery planning process, and through the interagency coordination

and consultation processes of section 7 for those activities with

Federal agency involvement.

Given all of the above considerations, the Service finds that

designation of critical habitat for Dudleya stolonifera, Acanthomintha

ilicifolia, Hemizonia conjugens, and Monardella linoides ssp. viminea

is not prudent at this time.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Act include recognition, recovery actions,

requirements for Federal protection, and prohibitions against certain

activities. Recognition through listing results in public awareness and

conservation actions by Federal, State, local, and private agencies,

groups, and individuals. The Act provides for possible land acquisition

from willing sellers and cooperation with the States and requires that

recovery actions be carried out for all listed species. The protection

required of Federal agencies and the prohibitions against certain

activities involving listed plants are discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to

evaluate their actions with respect to any species that is proposed or

listed as endangered or threatened and with respect to its critical

habitat, if any is being designated. Regulations implementing this

interagency cooperation provision of the Act are codified at 50 CFR

part 402. Section 7(a)(4) of the Act requires Federal agencies to

confer with the Service on any action that is likely to jeopardize the

continued existence of a species proposed for listing or result in

destruction or adverse modification of proposed critical habitat. If a

species is listed subsequently, section 7(a)(2) requires Federal

agencies to ensure that activities they authorize, fund, or carry out

are not likely to jeopardize the

[[Page 54955]]

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 must enter into

formal consultation with the Service. Section 7(a)(1) requires Federal

agencies to use their authorities to conserve listed species.

Federal agencies expected to have involvement with Monardella

linoides ssp. viminea include the Army Corps of Engineers and the

Environmental Protection Agency due to their permit authority under

section 404 of the Clean Water Act. Because M. linoides ssp. viminea

occurs on Marine Corps Air Station, Miramar, the Marine Corps will

likely be involved through military activities or potential transfer of

excess Federal lands. The Forest Service has jurisdiction over several

populations of Acanthomintha ilicifolia. Monardella linoides ssp.

viminea and Hemizonia conjugens may be affected by projects funded in

whole, or in part, by the Federal Highway Administration. Additionally,

H. conjugens is expected to be affected by INS projects and Federal

Aviation Agency projects on Otay Mesa.

The Act and its implementing regulations set forth a series of

general prohibitions and exceptions that apply to all endangered or

threatened plants. All prohibitions of section 9(a)(2) of the Act,

implemented by 50 CFR 17.61 (endangered plants) and 17.71 (threatened

plants), apply. These prohibitions, in part, make it illegal for any

person subject to the jurisdiction of the United States to import or

export, transport in interstate or foreign commerce in the course of a

commercial activity, sell or offer for sale in interstate or foreign

commerce, or remove and reduce the species to possession from areas

under Federal jurisdiction. In addition, for plants listed as

endangered, the Act prohibits the malicious damage or destruction on

areas under Federal jurisdiction and the removal, cutting, digging up,

or damaging or destroying of such plants in knowing violation of any

State law or regulation, including State criminal trespass law. Section

4(d) of the Act allows for the protections provided for endangered

species to be extended to threatened species through regulation, and 50

CFR 17.71 extends prohibitions for endangered plants, with one

exception, to plants listed as threatened. Seeds from cultivated

specimens of threatened plant species are exempt from these

prohibitions provided that their containers are marked ``Of Cultivated

Origin.'' Certain exceptions to the prohibitions apply to agents of the

Service and State conservation agencies.

The Act and 50 CFR 17.62, 17.63, and 17.72 also provide for the

issuance of permits to carry out otherwise prohibited activities

involving endangered or threatened plants under certain circumstances.

Such permits are available for scientific purposes, economic hardship

purposes, and to enhance the propagation or survival of the species.

For threatened plants, permits are also available for botanical or

horticultural exhibition, educational purposes, economic hardships, or

special purposes consistent with the purpose of the Act.

It is the policy of the Service, published in the Federal Register

on July 1, 1994 (59 FR 34272), to increase public understanding of the

prohibited acts that will apply under section 9 of the Act. Two of the

four species in this rule are known to occur on lands under the

jurisdiction of the Forest Service or the DOD (Marine Corps).

Collection of listed plants or activities that would damage or destroy

listed plants on these lands is prohibited without a Federal endangered

species permit. Such activities on non-Federal lands would constitute a

violation of section 9 of the Act if activities were conducted in

knowing violation of California State law or regulation, or in

violation of California State criminal trespass law.

The Service believes that, based upon the best available

information, the following actions will not result in a violation of

section 9, provided these activities are carried out in accordance with

existing regulations and permit requirements:

(1) Activities authorized, funded, or carried out by Federal

agencies (e.g., grazing management, agricultural conversions,

wetland and riparian habitat modification, flood and erosion

control, residential development, recreational trail development,

road construction, hazardous material containment and cleanup

activities, prescribed burns, pesticide/herbicide application,

pipelines or utility lines crossing suitable habitat,) when such

activity is conducted in accordance with any reasonable and prudent

measures given by the Service in a consultation conducted under

section 7 of the Act;

(2) Casual, dispersed human activities on foot or horseback

(e.g., bird watching, sightseeing, photography, camping, hiking);

(3) Activities on private lands that do not require Federal

authorization and do not involve Federal funding, such as grazing

management, agricultural conversions, flood and erosion control,

residential development, road construction, and pesticide/herbicide

application when consistent with label restrictions;

(4) Residential landscape maintenance, including the clearing of

vegetation around one's personal residence as a fire break.

The Service believes that the following might potentially result in

a violation of section 9; however, possible violations are not limited

to these actions alone:

(1) Unauthorized collecting of the species on Federal lands;

(2) Application of pesticides/herbicides in violation of label

restrictions;

(3) Interstate or foreign commerce and import/export without

previously obtaining an appropriate permit. Permits to conduct

activities are available for purposes of scientific research and

enhancement of propagation or survival of the species.

The Act and 50 CFR 17.62 and 17.63 for endangered plants and 17.72

for threatened plants provide for the issuance of permits to carry out

otherwise prohibited activities involving endangered and threatened

plants under certain circumstances. Such permits are available for

scientific purposes and to enhance the propagation or survival of the

species. For threatened plants, permits are also available for

botanical or horticultural exhibition, educational purposes, or special

purposes consistent with the purposes of the Act.

Questions regarding whether specific activities would constitute

violations of section 9 should be directed to the Field Supervisor of

the Service's Carlsbad Field Office (see ADDRESSES section). Requests

for copies of the regulations concerning listed plants (50 CFR 17.61

and 17.71) and general inquiries regarding prohibitions and permits may

be addressed to the U.S. Fish and Wildlife Service, Ecological

Services, Endangered Species Permits, 911 N.E. 11th Avenue, Portland,

Oregon, 97232-4181 (telephone 503/231-2063; facsimile 503/231-6243).

National Environmental Policy Act

The Fish and Wildlife Service has determined that Environmental

Assessments and Environmental Impact Statements, as defined under the

authority of the National Environmental Policy Act of 1969, need not be

prepared in connection with regulations adopted pursuant to section

4(a) of the Endangered Species Act of 1973, as amended. A notice

outlining the Service's reasons for this determination was published in

the Federal Register on October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

This rule does not contain any information collection requirements

for which the Office of Management and Budget (OMB) approval under the

[[Page 54956]]

Paperwork Reduction Act, 44 U.S.C. 3501 et seq. is required. An

information collection related to the rule pertaining to permits for

endangered and threatened species has OMB approval and is assigned

clearance number 1018-0094. This rule does not alter that information

collection requirement. For additional information concerning permits

and associated requirements for threatened species, see 50 CFR 17.32.

References

A complete list of all references cited in this final rule is

available upon request from the Carlsbad Field Office (see ADDRESSES

section).

Author: The primary authors of this final rule are Fred M. Roberts,

Jr. and Gary D. Wallace, Ph.D. (see ADDRESSES section; telephone 760/

431-9440).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, amend part 17, subchapter B of chapter I, title 50 of

the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Section 17.12(h) is amended by adding the following, in

alphabetical order under FLOWERING PLANTS, to the List of Endangered

and Threatened Plants, to read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Species

-------------------------------------------------- Historic range Family Status When Critical Special rules

Scientific name Common name listed habitat

--------------------------------------------------------------------------------------------------------------------------------------------------------

FLOWERING PLANTS:

* * * * * * *

Acanthomintha ilicifolia...... San Diego U.S.A. (CA) Mexico Lamiaceae................. T 649 NA NA

thornmint.

* * * * * * *

Dudleya stolonifera........... Laguna Beach U.S.A. (CA)....... Crassulaceae.............. T 649 NA NA

liveforever.

* * * * * * *

Hemizonia conjugens........... Otay tarplant.... U.S.A. (CA) Mexico Asteraceae................ T 649 NA NA

* * * * * * *

Monardella linoides ssp. Willowy U.S.A. (CA) Mexico Lamiaceae................. E 649 NA NA

viminea. monardella.

* * * * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: September 29, 1998.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 98-26858 Filed 10-9-98; 8:45 am]

BILLING CODE 4310-55-P