98-26858. Endangered and Threatened Wildlife and Plants; Determination of Endangered or Threatened Status for Four Plants From Southwestern California and Baja California, Mexico

[Federal Register Volume 63, Number 197 (Tuesday, October 13, 1998)]
[Rules and Regulations]
[Pages 54938-54956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26858]



[[Page 54937]]

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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Determinations of 
Endangered or Threatened Status; Final Rules and Withdrawal of Proposed 
Rule

Federal Register / Vol. 63, No. 197 / Tuesday, October 13, 1998 / 
Rules and Regulations

[[Page 54938]]



DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD38


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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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 [phone]; FAX [phone]).

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).

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    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 [phone]; 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