[Federal Register Volume 63, Number 197 (Tuesday, October 13, 1998)]
[Rules and Regulations]
[Pages 54956-54971]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26859]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AD60
Endangered and Threatened Wildlife and Plants; Endangered or
Threatened Status for Three Plants from the Chaparral and Scrub of
Southwestern California
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) determines
endangered status pursuant to the Endangered Species Act of 1973, as
amended (Act), for two plants, Berberis nevinii (Nevin's barberry) and
Fremontodendron mexicanum (Mexican flannelbush) and threatened status
for one plant, Ceanothus ophiochilus (Vail Lake ceanothus) throughout
their respective historic ranges in southwestern California and
northwestern Estado de Baja California, Mexico. These species are
associated with scrub and chaparral plant communities and are, in some
cases, endemic to specific types of clay soils.
These species are threatened by one or more of the following
factors: destruction, degradation and fragmentation of habitat by
urbanization; encroachment by exotic plant species, disruption of
normal fire cycles; off-highway vehicle (OHV) use, hybridization, and
the inadequacy of existing regulatory mechanisms. This rule implements
the Federal protection and recovery provisions afforded by the Act for
these species. These plant species were proposed for listing on October
2, 1995 (60 FR 51433). Another species proposed as threatened on that
date, Nolina interrata (Dehesa beargrass), is withdrawn in this same
Federal Register part, to be published on the same day as this final
rule.
DATES: Effective November 12, 1998.
ADDRESSES: The complete file for this rule is available for 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: Loren Hays, Chief Branch of Listing
and Recovery or Dr. Gary D. Wallace, Botanist at the above address
(telephone 760/431-9440; facsimile 760/431-9624).
SUPPLEMENTARY INFORMATION:
Background
Berberis nevinii (Nevin's barberry) and Ceanothus ophiochilus (Vail
Lake ceanothus) occur in restricted, localized populations in the
interior foothills of Los Angeles, Riverside and San Bernardino
Counties in California; Fremontodendron mexicanum occurs in
[[Page 54957]]
restricted and localized populations from the interior foothills of San
Diego County and northwestern Baja California, Mexico. Berberis nevinii
is found in chaparral and alluvial scrub associated with rocky slopes
and sediments and sandy washes (Boyd 1987, Mistretta 1989a). Ceanothus
ophiochilus is found in chamise chaparral, often in association with
specific soil types. Fremontodendron mexicanum is known from closed-
cone coniferous forest dominated by Cupressus forbesii (Tecate cypress)
and chaparral.
Chaparral habitats of the interior foothill region of southern
California are dense shrub associations of moderate height dominated by
Adenostoma fasciculatum (chamise), Ceanothus sp. (California lilac),
Rhamnus ilicifolia (red berry), Arctostaphylos sp. (manzanita), Quercus
berberidifolia (California scrub oak), Rhus ovata (sugar bush), Malosma
laurina (laurel sumac), Heteromeles arbutifolia (toyon), Eriogonum
fasciculatum (California buckwheat), and Salvia mellifera (black sage)
(Holland 1986). Chaparral plant communities are adapted to nutrient
poor soils, cool wet winters, and hot dry summers.
Most chaparral species are adapted to periodic wildfire. In some
species, only the seeds survive fires and these may require fire to
germinate (Keeley 1991). Other species persist by resprouting from the
burned stumps of the plants. A too frequent occurrence of fires can
burn young or resprouting shrubs before they become reproductively
mature, thus depleting or exhausting the seed bank (Zedler et al.
1983). Sustained fire prevention can result in senescent (extreme
aging) plant communities that may not survive the eventual and
unpredictable fires to reproduce vegetatively (Boyd 1991). Within these
senescent chaparral communities, high fuel loads of plant material
build up in the absence of fire, which often results in unnaturally hot
fires that may kill plants and destroy the seed banks of some species.
However, these species may repopulate historically occupied areas if a
natural fire regime is restored.
Chaparral occurs on many different soil types, but Ceanothus
ophiochilus, and often, Fremontodendron mexicanum typically occur in
clay soils derived from gabbro (mineral) or metavolcanic bedrock (Boyd
1991, Oberbauer 1991, California Natural Diversity Data Base (CNDDB)
1997). Clay soils have unique physical and chemical properties that
contribute to the disproportionately large number of rare plants found
on this substrate, as compared to other soil types. For that reason,
clay soils are an important component of floristic plant diversity in
the region. The Vail Lake area of Riverside County has a large complex
of unique habitats on clay soils formed from gabbro bedrock. Such
habitats support many sensitive or endangered plant and animal species,
including C. ophiochilus and Berberis nevinii (Metropolitan Water
District (MWD) 1991).
Alluvial scrub, found in certain floodplain systems in southern
California, comprises an open vegetation community of drought-deciduous
and evergreen shrubs (Smith 1980, Hanes et al. 1989). Alluvial scrub is
characterized by porous, infertile soils subject to periodic intense
flooding and erosion associated with the outwash environment (Hanes et
al. 1988). This vegetation type includes life-forms of desert and
coastal affinities such as Rhamnus crocea (California redberry),
Lepidospartum squamatum (scalebroom), Cercocarpus betuloides (mountain
mahogany), Eriogonum fasciculatum (California buckwheat), and
occasionally Juniperus californica (California juniper) (Hanes et al.
1988). Urbanization and industrial development are eliminating this
plant community (Smith 1980).
Population centers for Berberis nevinii and Ceanothus ophiochilus
are located near Vail Lake in southwestern Riverside County. One of the
two largest known populations of B. nevinii occurs in this area
adjacent to the type locality of C. ophiochilus (Boyd 1987, CNDDB
1997). The other large population of B. nevinii is in San Francisquito
Canyon on the Angeles National Forest in Los Angeles County (Boyd et
al. 1989). The majority of B. nevinii plants found outside the Vail
Lake and Angeles National Forest sites occur as isolated populations in
San Bernardino and Los Angeles Counties. Small populations of C.
ophiochilus occur just south of Vail Lake in the Agua Tibia Wilderness
of the Cleveland National Forest. Fremontodendron mexicanum is found
only in southern San Diego County, California, and northwestern Estado
de Baja California, Mexico.
Discussion of the Three Plant Species
Ceanothus ophiochilus (Vail Lake ceanothus), a member of the
buckthorn family (Rhamnaceae), was described by Steve Boyd, Timothy
Ross, and Laurel Arnseth based on a collection made by the authors in
March 1989 west of Vail Lake in Riverside County, California (Boyd et
al. 1991). This classification of the species is accepted in the most
recent taxonomic treatment of the genus (Schmidt 1993).
Ceanothus ophiochilus is a rounded, divaricately branched (widely
forked) shrub, 1.2-1.5 meters (m) (4-5 feet (ft)) tall. The leaves are
opposite, thick, 3-7 m (0.1-0.3 inch (in)) long and less than 2.5 mm
(0.1 in) wide. The stipules are corky. The fruits are 3-3.5 millimeters
(mm) (0.1 inch (in)) in diameter, and usually hornless. Ceanothus
ophiochilus lacks a burl and recovers after fire by means of seed
germination. Ceanothus ophiochilus is differentiated from other species
of Ceanothus in the area by its opposite, narrow leaves, pale green
color below, blue flowers, and hornless fruits. This species grossly
resembles Adenostoma fasciculatum (chamise), the codominant shrub in
its habitat. Ceanothus ophiochilus flowers from mid-February to March
and the seed capsules mature from about May to mid-June (Boyd et al.
1991, Schmidt 1993).
Ceanothus ophiochilus is restricted to dry habitats on ridgetops
and north to northeast facing slopes in chamise chaparral. It occurs on
shallow soils formed from ultra-basic parent materials or deeply
weathered gabbro, both of which are phosphorus deficient (Boyd et al.
1991). Nutrient poor soils may be critical for the species to maintain
reproductive isolation (Boyd et al. 1991). Ceanothus ophiochilus
appears to hybridize with the locally common C. crassifolius in places
where the two species occur together.
Ceanothus ophiochilus is found at three sites in southwestern
Riverside County. These populations are scattered along borders of
creeks and dry canyons, sometimes on gabbro soils (Shaffer 1993). One
population of 3,000-5,000 plants occupies about 8 hectares (ha) (20
acres (ac)) within a 16 ha (40 ac) area of seemingly suitable habitat
(Boyd 1991) on privately owned land at Vail Lake. There are some hybrid
individuals in this population (Boyd et al. 1991). The remaining two
populations exist on land managed by the Forest Service, where over
4,000 plants exist in a 12 ha (30 ac) area of the Agua Tibia Wilderness
Area. The two populations in the Agua Tibia Wilderness occupy about 50
percent of the known occupied habitat of the species and contain a
significant number of individuals, and the Vail Lake population
includes the other 50 percent of the known occupied habitat and plants.
Both Agua Tibia populations appear to contain hybrid plants. A portion
of one of these populations consists of plants that are too young to
determine the degree of hybridization taking place (Shaffer 1993; Steve
Boyd, Rancho Santa Ana Botanical Garden, pers. comm. 1995).
[[Page 54958]]
Although all three populations contain some individuals that
evidently are not pure Ceanothus ophiochilus, the Service continues to
recognize their importance to the long-term survival of the species.
Hybridization is a natural phenomenon common among the species of
Ceanothus (Schmidt 1993). Conservation of the hybrid plants will be
addressed in the recovery plan for C. ophiochilus.
Berberis nevinii (Nevin's barberry), a member of the barberry
family (Berberidaceae), was described by Asa Gray (1895) based on a
collection made by Joseph Nevin in 1892 on the east side of the San
Fernando Valley near Los Angeles. Berberis nevinii has been treated as
Mahonia nevinii (Fedde 1901) and Odostemon nevinii (Abrams 1910).
Recent authorities follow Gray's treatment (Munz 1974, Williams 1993).
Berberis nevinii is a rhizomatous evergreen shrub 1-4 m (3-12 ft)
tall. The pinnately compound leaves (featherlike arrangement of the
leaflets) are gray-green with serrate, spine-tipped margins. The
flowers, clustered in loose racemes, have six yellow petals arranged in
two series. The berries are juicy, yellowish to red, 6-8 mm (less than
0.3 in) long with brownish seeds. This species flowers from March
through April. Berberis nevinii is distinguished from other members of
the genus by its nearly flat, narrow, serrate, pinnately veined leaves,
few flowered racemes, and reddish fruits (Williams 1993).
Berberis nevinii is found in two habitat types: gravelly wash
margins in alluvial scrub (Niehaus 1977, Boyd 1987), and on coarse
soils in chaparral (Boyd 1987). This species typically is found between
300 and 650 m (900 and 2,000 ft) in elevation.
Historically, the range of this species probably consisted of fewer
than 30 scattered occurrences. At least seven populations have been
extirpated, probably due to factors associated with urbanization
(California Department of Fish and Game (CDFG) 1991). The species'
native range currently extends from the foothills of the San Gabriel
Mountains of Los Angeles County to near the foothills of the Peninsular
Ranges of southwestern Riverside County. The total number of
individuals is reportedly fewer than 1,000 (Boyd 1987), but may be
fewer than 500 (CNDDB 1997, MWD 1991). The largest remaining cluster of
native populations, which collectively contain about 200 individuals,
occurs in Riverside County in the Vail Lake/Oak Mountain area. Most of
these populations are on private lands in the Vail Lake region,
although a few individuals occur on Bureau of Land Management (BLM)
lands north of Vail Lake and in the Cleveland National Forest southeast
of Vail Lake (Boyd et al. 1989). In Los Angeles County, another
population of 130-250 individuals occurs on an alluvial terrace and on
steep slopes in San Francisquito Canyon, Angeles National Forest (Boyd
et al. 1989, CNDDB 1997). Another site was recently discovered on the
Angeles National Forest (Gary Wallace, U.S. Fish and Wildlife Service,
pers. obs. 1998). Two other native populations are small, with fewer
than 10 individuals, and occur on private lands (Boyd 1987, CNDDB
1997).
The range of Berberis nevinii has been extensively surveyed, and
additional populations are not likely to occur in the Vail Lake area
(Boyd et al. 1989). Searches for B. nevinii, based on Boyd's (1987)
habitat parameters, revealed no additional plants on the San Bernardino
National Forest (Mistretta 1989b; Melody Lardner, Botanist, San
Bernardino National Forest, in litt. 1993).
Fremontodendron mexicanum, a member of the cacao family
(Sterculiaceae), was first described by Anstruther Davidson (1917)
based on a collection sent to him by Kate Sessions. Macbride (1918)
applied the name Fremontia mexicana to the species. Harvey (1943)
followed this nomenclature in his revision of the genus. The taxon was
reduced to a variety of Fremontia californica by Jepson (1925) and to a
subspecies of Fremontodendron californicum by Murray (1982); however,
Munz (1974), Kelman (1991), and Whetstone and Atkinson (1993) have all
recognized Davidson's combination. The genus name Fremontia was not
conserved because Fremontodendron has priority.
Fremontodendron mexicanum is a small tree or shrub 1.5-6 m (5-19
ft) tall with evergreen, palmately (leaflets radiating from one
point)lobed leaves 25-50 mm (1-2 in) wide. The flowers are up to about
69 mm (2.7 in) wide and lack petals. The showy orange to dark yellow
sepals are sometimes reddish toward the bases. Fremontodendron
mexicanum is distinguished from F. californicum by its orange sepals
with basal pits generally lacking long hairs, and shiny black, glabrous
(smooth) seeds that lack caruncles (outgrowths) (Kelman 1991). Native
populations of this species occur primarily in closed-cone coniferous
forest and southern mixed chaparral, often in association with
metavolcanic soils (Oberbauer 1991, Reiser 1996) at elevations between
300 and 1,000 m (900 to 3,000 ft).
Fewer than 10 historical, native locations have been reported for
Fremontodendron mexicanum in the United States. Several of these
reports were based on misidentified or cultivated specimens. Apparently
at least two historical populations of F. mexicanum have been
extirpated; these were located at Boundary Monument near the coast and
in the Jamul Mountains, both in San Diego County. Reliable distribution
records for the species indicate that it is currently only known from
Cedar Canyon on Otay Mountain in southern San Diego County and at
Arroyo Seco, north of San Quintin, Estado de Baja California, Mexico
(Wiggins 1980). This species has not been relocated during surveys of
other historical localities (Ogden Environmental and Energy Services,
Inc. 1992; Reiser 1996). BLM manages most of the Cedar Canyon
population. Other historical sites the Service considers to have
potential for currently supporting or reestablishing populations of F.
mexicanum are divided in ownership between the BLM and private
landowners (CNDDB 1997).
The total number of remaining plants of Fremontodendron mexicanum
in the United States is estimated to be fewer than 100 individuals
(Beauchamp, in litt. 1993, CNDDB 1997). Two additional native
historical populations are reported from Mexico; however, one
population has not been observed recently, and the other, Arroyo Seco,
may have been extirpated by a substantial flood (Reiser 1996). Reports
of this species in Monterey and Kern Counties (Kelman 1991) are based
on single specimens lacking conclusive characters.
A reported occurrence for Los Angeles County (Kelman 1991) was
likely based on a garden escapee and has not been relocated. Similarly,
reports of this species in Orange and southwestern Imperial Counties
(Whetstone and Atkinson 1993; Shevock, pers. comm. 1997) are based on
specimens from plants of probable cultivated origin, or are unverified.
Several other recent occurrences have been reported in San Diego County
and in Los Angeles County, California; however, these occurrences
likely represent planted individuals readily available in the nursery
trade, or misidentifications (Reiser 1996, CNDDB 1997). However, even
if one or more of these populations prove to be native F. mexicanum,
because the flora of California is fairly well-known, this species
would be a rare element at these sites and would not likely represent a
substantial population.
[[Page 54959]]
Previous Federal Action
Federal government action on the three plant species contained in
this rule began as a result of 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 in the
United States. This report, designated as House Document No. 94-51, and
presented to Congress on January 9, 1975, recommended Berberis nevinii
and Fremontodendron mexicanum for endangered status. The Service
published a notice in the Federal Register on July 1, 1975 (40 FR
27823) of its acceptance of the report as a petition within the context
of section 4(c)(2) of the Act (now section 4(b)(3)(A)), and of the
Service's intention to review the status of the plant species named in
it, including B. nevinii and F. mexicanum. On June 16, 1976, the
Service published a proposal in the Federal Register (41 FR 24523) to
list approximately 1,700 vascular plant species as endangered species
pursuant to section 4 of the Act. Berberis nevinii and F. mexicanum
were included in the June 16, 1976 Federal Register notice.
General comments received in relation to the 1976 proposal were
summarized in an April 26, 1978, Federal Register notice (43 FR 17909).
Although the 1978 amendments to the Act required that all proposals
over 2 years old be withdrawn, a 1-year grace period was given to those
proposals already more than 2 years old. On December 10, 1979, Federal
Register (44 FR 70796), the Service published a notice of withdrawal
for the portion of the June 16, 1976 proposal that had not been made
final, along with four other proposals that had expired. The Service
published an updated notice of review of plants in the Federal Register
on December 15, 1980 (45 FR 82479). This notice included B. nevinii and
F. mexicanum as category 1 candidate species. Category 1 candidates
were those species for which the Service had sufficient information on
biological vulnerability and threats to support listing proposals, but
the preparation of a proposal was precluded by higher priority species.
Section 4(b)(3)(B) of the Act, as amended in 1982, requires the
Secretary to make findings on pending petitions within 12 months of
their receipt. Section 2(b)(1) of the Act, as amended in 1982 further
required that all petitions pending on October 13, 1982, be treated as
having been newly submitted on that date. This was the case for
Berberis nevinii and Fremontodendron mexicanum, the 1975 Smithsonian
report having received the status of a petition. On October 13, 1983,
the Service found that the petitioned listing of these species was
warranted, but precluded by other pending listing actions, in
accordance with section 4(b)(3)(B)(iii), of the Act. Notification of
this finding was published in the Federal Register on January 20, 1984
(49 FR 2485). Such a finding requires the petition to be recycled
annually, pursuant to section 4(b)(3)(C)(i) of the Act. The finding was
reviewed each October, annually and the status of these two species was
retained in the September 27, 1985 (50 FR 39526), the February 21,
1990, (55 FR 6184), the September 30, 1993 (58 FR 51143) and the
February 28, 1996, (61 FR 7596) review of plant taxa.
On September 16, 1991, the Service received a petition dated
September 13, 1991, from Mr. Steve Boyd of Rancho Santa Ana Botanic
Garden, to list Ceanothus ophiochilus as an endangered species (Boyd
1991). The Service evaluated the petition and published a 90-day
finding in the Federal Register on August 10, 1992 (57 FR 37513), that
substantial information was presented and that the requested action may
be warranted. The species was included as a category 2 candidate
species in the September 30, 1993, notice of review (50 FR 51144).
Category 2 candidate species were those species for which information
in the possession of the Service indicated that a proposal to list the
species as endangered or threatened was possibly appropriate, but
sufficient data on biological vulnerability and threats were not
currently available to support proposed rules.
On October 2, 1995, the Service published in the Federal Register
(60 FR 51443) a proposal to list Berberis nevinii and Fremontodendron
mexicanum as endangered and Ceanothus ophiochilus and Nolina interrata
(Dehesa beargrass) as threatened. The proposal to list N. interrata was
withdrawn and is addressed in a document published concurrently in the
proposed rule section of this same Federal Register part. Publication
of the proposed rule to list B. nevinii, C. ophiochilus, and F.
mexicanum constituted the 12-month petition finding for these species.
The processing of this final rule follows the Service's final
listing priority guidance for fiscal years 1998 and 1999 published on
May 8, 1998, in the Federal Register (63 FR 25502). The guidance
clarifies the order in which the Service will process rulemakings. The
guidance calls for giving highest priority to the handling of emergency
actions (Tier 1) and second highest priority to resolving the listing
status of species included in outstanding proposed listing actions
(Tier 2). This final rule falls under Tier 2 of the guidance. The three
species in this rule face high magnitude threats. This rule has been
updated to reflect changes in information concerning distribution,
status and threats. However, this additional information was not of a
nature that it altered the Service's decision to list the three
species.
Summary of Comments and Recommendations
In the October 2, 1995, proposed rule (60 FR 51443) and associated
notifications, all interested parties were asked to submit factual
reports or information that might contribute to the development of a
final rule. Appropriate Federal and State agencies, county and city
governments, scientific organizations, and other interested parties
were contacted and asked to comment. Individual newspaper notices of
the proposed rule were published in the San Diego Union-Tribune and the
Riverside Press-Enterprise on October 20, 1995. The 45-day comment
period for the proposed rule closed on November 16, 1995. A public
hearing was requested during the comment period, but the Service's
ability to hold the hearing was precluded by severe funding constraints
in effect between November 1995 and April 1996. The party requesting
the hearing subsequently submitted written comments to the Service
during the comment period. On June 4, 1997, a letter was sent to the
party inquiring as to their wishes regarding the previous request for a
public hearing. No response was received by the Service.
During the comment period, the Service received four letters
concerning the proposed rule, including one from a Federal agency, one
from a State agency, and two from individuals or groups. One respondent
expressed support for the listing proposal, one opposed it, and two
were neutral. Additional information and clarification provided by one
commenter have been incorporated into this final rule. Relevant
comments have been organized into specific issues. These issues and the
Service's response to each are summarized as follows:
Issue 1: One commenter claimed that Ceanothus ophiochilus was a
relictual (relic) species, formerly more common than at the present
time and that the species likely will continue to persist, barring any
new threats to its existence.
Service Response: It is not feasible, using current information, to
determine
[[Page 54960]]
if Ceanothus ophiochilus is a relict species (a species from an earlier
era that is surviving in a changed environment) or the extent of its
prehistoric distribution. The listing status of this species is not
based on its evolutionary history, but rather on current and future
threats to its continued existence. Major threats to the species are
presented by the modification, destruction, degradation, and
fragmentation of its habitat due to urbanization and off-road vehicle
use.
Issue 2: One commenter suggested that the Service has resisted
efforts to provide the protection needed for Ceanothus ophiochilus and
Berberis nevinii, readily available through the creation of a
conservation bank at Vail Lake. Another commenter suggested acquiring
the portion of the Vail Lake planned community that contains the
Ceanothus ophiochilus population.
Service Response: The Service actively participated in discussions
regarding the creation and implementation of a conservation bank for
listed species and sensitive habitats at Vail Lake in 1995. In Spring
1995, the landowner of the Vail Lake Planned Community Area offered the
Riverside County Habitat Conservation Agency (RCHCA) an option to
acquire about 6,000 acres as part of a conservation bank, and a draft
conservation agreement was prepared (Jeff David and Associates 1995).
However, the option for this property expired in September of 1995 and
all of the parcels have recently been sold (M. Shaughnessy, U.S. Fish
and Wildlife Service, pers. comm. 1997). Protection of these two
species through land purchases, conservation agreements, and other
recovery strategies will be addressed in the recovery plan for these
species.
Issue 3: One commenter contended that the threats specified in the
proposed rule are unlikely to become real in the area containing the
Vail Lake population of Ceanothus ophiochilus.
Service Response: The Service has recently received notification of
filing for a conditional use permit for the recreational vehicle (RV)
park parcel immediately adjacent to the parcel that supports the
Ceanothus ophiochilus population. The close proximity of human
activities increases the likelihood and frequency of accidental fires,
the introduction of exotic species, and associated adverse impacts. In
addition, as is indicated above, all of the parcels in the Vail Lake
planned community supporting C. ophiochilus have been sold. Development
of the parcels containing C. ophiochilus, and the associated habitat
disturbances, remain a threat to the continued existence of the
species.
Issue 4: One commenter suggested that additional populations of
Ceanothus ophiochilus will be discovered.
Service Response: No new populations have been reported since the
populations in the Agua Tibia Wilderness were found in 1993. At that
time, several additional areas of potential habitat were searched by
staff of the Cleveland National Forest without locating additional
populations (Kirsten Winter, Botanist, Cleveland National Forest, in
litt. 1995).
Issue 5: One commenter stated that none of the three species, which
are all listed as endangered by the State of California under the
California Endangered Species Act (CESA), is currently known to occur
on State Park lands. However, if they were found to occupy State Park
lands, California Environmental Quality Act (CEQA) would require
consideration of impacts from proposed actions.
Service Response: CEQA applies to virtually all projects, whether
on State or private lands. Under CEQA, the impacts of projects on
listed species must be considered, not only on State Park lands but
also on any non-Federal lands.
Issue 6: One commenter, noting that the proposed rule stated that
Berberis nevinii is available for cultivation in the nursery trade,
questioned how a species in cultivation could be endangered.
Service Response: One of the provisions of the Act (section 2(b))
includes providing ``a means whereby the ecosystems upon which
endangered species and threatened species depend may be conserved, to
provide a program for the conservation of such endangered species and
threatened species.'' The preservation of a species is ultimately
successful through the long-term persistence of natural populations in
native habitats. Introductions of cultivated specimens into native
habitats may alter natural gene frequencies and thereby affect the
survival potential of the species.
Issue 7: One commenter stated that listing Ceanothus ophiochilus
and Berberis nevinii improperly denigrates other methods of
conservation, such as the efforts and authority of the California
Department of Fish and Game, as well as other State and local laws and
practices addressing biological resources, such as CEQA. The commenter
also noted the broader scope of the California Endangered Species Act
(CESA) as compared to the Federal Act with respect to plants on private
property.
Service Response: A detailed discussion regarding these and other
programs has been incorporated into the final rule under ``Summary of
Factors Affecting the Species.'' Although the Native Plant Protection
Act (NPPA) and CESA both prohibit the ``take'' of State-listed plants
(chapter 10 sec. 1908 and chapter 1.5, sec 2080), these statutes do not
adequately protect against the taking of such plants by means of
habitat modification or land use change by the landowner. After CDFG
notifies a landowner that a State-listed plant grows on their property,
the CDFG Code requires only that the landowner notify the agency ``at
least 10 days in advance of changing the land use to allow salvage of
such plant'' (chapter 10, sec. 1913). The requirement for the issuance
of take permits for endangered plants under section 2081 of CESA is
currently under review (Ann Malcomb, California Department of Fish and
Game, pers. comm. 1998). CEQA guidelines require that once significant
effects are identified, the lead agency has the option to either
require mitigation for effects through changes in the project or to
decide that the ``overriding social and economic considerations'' will
make mitigation infeasible (California Public Resources Code,
Guidelines, section 15093). In the latter case, significant
environmental damage may result from an approved project, including the
destruction of endangered plant species. Protection of listed plant
species under CEQA is, therefore, dependent upon the discretion of the
lead agency. The Service, therefore, finds the current regulations to
be inadequate.
Issue 8: One commenter suggested that because Fremontodendron
mexicanum was reported from the Descanso District of the Cleveland
National Forest, that further surveys are needed to locate the species.
Service Response: Surveys have not located Fremontodendron
mexicanum on the Cleveland National Forest. All previous reported
localities on the Forest were found to support the widespread
Fremontodendron californicum (Kirsten Winter, U.S. Forest Service,
pers. comm. 1997).
Peer Review
In accordance with interagency policy published in the Federal
Register on July 1, 1994 (59 FR 34270), the Service solicited the
expert opinions of three independent specialists regarding pertinent
scientific or commercial data and assumptions relating to the taxonomy,
population models, and supportive biological and ecological information
for the species under consideration for listing. The purpose of
[[Page 54961]]
such review is to ensure listing decisions are based on scientifically
sound data, assumptions, and analyses, including input of appropriate
experts and specialists. Despite this effort, no responses were
received from the specialists solicited by the Service.
Summary of Factors Affecting the Species
After a thorough review and consideration of all information
available, the Service has determined that Ceanothus ophiochilus should
be classified as a threatened species, and Berberis nevinii and
Fremontodendron mexicanum should be classified as endangered species.
Procedures found at section 4 of the Act (16 U.S.C. 1531) and
regulations (50 CFR part 424) promulgated to implement the listing
provisions of the Act were followed. A species may be determined to be
an endangered or threatened species due to one or more of the five
factors described in section 4(a)(1). These factors and their
application to Ceanothus ophiochilus Boyd, Ross and Arnseth (Vail Lake
ceanothus), Berberis nevinii Gray (Nevin's barberry), and
Fremontodendron mexicanum Davidson (Mexican flannelbush) are as
follows:
A. The present or threatened destruction, modification, or curtailment
of their habitat or range
The Service finds that the three species listed in this rule are
imperiled by various activities, including urbanization and off-road
vehicle use, that result in habitat modification, destruction,
degradation, and fragmentation. The specific soil and/or hydrological
requirements of these plant species naturally limit their distribution
to clay soils formed from gabbro and alluvial or sedimentary based
substrates (sandy washes and terraces) within the chaparral or scrub
plant communities. Rey-Vizgirdas (1994) places the loss of alluvial
scrub habitats at over 90 percent based on an estimate of presettlement
conditions. Most of the alluvial scrub habitat in the San Fernando and
San Gabriel valleys has been eliminated by urban development, road
widening, flood control measures or habitat degradation from extensive
recreational use (CDFG 1991). Urban development and mining have
generally impacted these habitat types more directly than other
activities within the chaparral community, the terrain being more
accessible than the typically rugged, steep, boulder-covered terrain of
the surrounding chaparral.
Much of southwestern Riverside County is expected to be converted
to urban development within the decade (Monroe et al. 1992, California
Department of Finance 1993). The Vail Lake area, where both Ceanothus
ophiochilus and Berberis nevinii occur, is included in a community
plan. Development in the area was planned and approved by the County
and allows subdivision of parcels into 20 ac (9 ha) lots (Boyd 1991,
Shaffer 1993). In 1995, the owner of the property offered the Riverside
County Habitat Conservation Agency (RCHCA) an option to acquire a
portion of the Vail Lake planned community for a conservation bank.
However, the option to purchase the property expired, and the parcels
were subsequently sold (M. Shaughnessy, pers. comm. 1997). It is
expected that individual landowners are likely to convert the existing
habitat to gardens, lawns and pastures. This development will fragment
remaining habitat, introduce invasive plants that compete with the
species considered in this rule, contribute to combustible fuel loads,
and degrade the habitat as a result of conversion to later successional
stages of plant communities (Boyd 1991). In addition, fire management
strategies for developed areas, including fire suppression measures and
brush clearance requirements, alter the natural fire processes to which
natural plant communities are adapted and which they require for long-
term survival.
Populations of Berberis nevinii occurring in alluvial scrub
habitats of Los Angeles County have been heavily impacted (CNDDB 1997).
A note on a specimen of B. nevinii collected in 1932 stated that there
were only about 100 plants known, all east of San Fernando Road, and
that their numbers were likely to decrease. Wolf (1940) cites
urbanization and brush fires as causes of the hastened rate of
extinction of this species in the area near San Fernando (Los Angeles
County). Several sites apparently containing B. nevinii in this area
have been destroyed by the extensive urbanization of the eastern San
Fernando Valley. These sites, however, were not included in the CNDDB
because of inadequate data. Only two of the seven native occurrences of
B. nevinii in Los Angeles County noted by CNDDB (1997) are extant. A
new occurrence of a single plant was recently found in a canyon on the
south slope of the San Gabriel Mountains (G. Wallace, pers. comm.
1998). The occurrence, of questionable origin because it was near an
old nursery, consisted of a single plant on a parcel with an approved
tentative tract map; this site was recently cleared.
The majority of the 16 native occurrences for Berberis nevinii,
which are all located in the vicinity of Vail Lake in western Riverside
County (CNDDB 1997), consist of five or fewer plants. Urban development
in the Vail Lake area threatens the largest group of occurrences of B.
nevinii, and most of these occurrences at Vail Lake would likely be
eliminated by development (Jeff David and Associates 1995). Parcels
recently sold at Vail Lake contain about 15 of the 16 occurrences
(CNDDB 1997) and apparently contain more than 150 of the approximately
200 plants of B. nevinii in western Riverside County. An application
for a conditional-use permit has been filed for one of the parcels that
has both B. nevinii and another federally listed plant species,
Dodecahema leptoceras (slender-horned spineflower). This parcel is also
adjacent to a parcel that supports Ceanothus ophiochilus.
Highway projects may impact Berberis nevinii directly and
indirectly. A proposal to widen State Route 79 to four lanes may
directly impact some populations of B. nevinii, as well as promote
development in the area (Monroe et al. 1992), leading to additional
indirect impacts. Of the two occurrences of Berberis nevinii on private
land near Redlands, San Bernardino County, one site supporting as many
as six plants has been damaged as a result of off-road vehicles and
horseback riding (CNDDB 1997). The other site in this county,
supporting a single plant, is threatened by a predominance of annual
grasses (CNDDB 1997).
The Vail Lake planned community is also the site of one of three
populations of Ceanothus ophiochilus. The grading of fire breaks has
reportedly destroyed some of the C. ophiochilus population at Vail Lake
and a portion of the populations in the Agua Tibia Wilderness on the
Cleveland National Forest (Boyd et al. 1989; Boyd 1991; Susan Cochrane,
CDFG, in litt. 1993).
The only confirmed, extant native occurrence for Fremontodendron
mexicanum in the United States is located in Cedar Canyon on Otay
Mountain in southern San Diego County near the Mexican border (CNDDB
1997). About 50 percent of the habitat occupied or potentially suitable
for restoration of F. mexicanum populations exists on lands
administered by the BLM as an Area of Critical Environmental Concern
(ACEC) and a Research Natural Area (RNA). The remaining portion of this
habitat is located within the privately owned Otay Ranch, on lands
zoned as natural open space (Ogden Environmental and Energy Services,
Inc. 1992; Tom Oberbauer, pers. comm. 1998).
The Cedar Canyon ACEC and RNA were designated for the preservation
of
[[Page 54962]]
Fremontodendron mexicanum by BLM in their 1994 South Coast Resource
Management Plan. The ACEC is a right-of-way avoidance area, which is
not available for mineral material sales or livestock grazing, and is
closed to motorized vehicle use. Natural conditions are maintained in
the ACEC/RNA, where possible, by allowing ordinary physical and
biological processes to operate without human intervention. Some
management activities are authorized to maintain the unique features
for which the ACEC/RNA was designated. BLM has not yet completed the
proposed acquisition of an additional 280 ac (113 ha) to add to the
existing 705 ac of the ACEC and RNA (Bureau of Land Management 1994;
Julia Dougan, Area Manager, Bureau of Land Management, pers. comm.
1997).
Although urbanization and associated habitat loss and further
habitat fragmentation are no longer significant direct threats to
Fremontodendron mexicanum, the single known population is vulnerable to
a variety of threats. This species is likely susceptible to adverse
genetic effects because of the low number of individuals in the
population, which is estimated to be below 100 (Barrett & Kohn 1991).
Another primary threat to the Cedar Canyon population, and thereby
to the species, is from altered fire regimes as a result of various
human-caused fires. Fremontodendron mexicanum is associated with
closed-cone coniferous forest dominated by Cupressus forbesii and with
mixed chaparral. Both of these vegetation types are susceptible and
adapted to naturally occurring fires. Fires that occur at longer or
shorter intervals than the natural cycle or during reproductive seasons
may imperil the species.
The BLM has made commitments to protect the population in the Cedar
Canyon ACEC, however, the agency does not control a significant portion
of the habitat in the lower end of Cedar Canyon and does not control
some additional areas to the northeast of the canyon. Despite BLM's
efforts it has not been possible to control the human foot-traffic
through Cedar Canyon. Human foot traffic presents a significant threat
as a source of accidental fires. A single catastrophic fire could
potentially eliminate all or most of the Fremontodendron mexicanum
population. A fire can occur too soon after an earlier fire resulting
in the killing of young plants prior to their producing seeds. A fire
can also occur at a time when litter and biomass accumulation has
reduced or eliminated seedling establishment and kill all of the mature
plants. Either of these types of fire occurrences could drastically
reduce or eliminate the seed bank for this species and kill mature
plants that might otherwise survive less severe fires. In the extreme
circumstance an uncontrolled fire of sufficient intensity could
potentially drive the species to extinction.
The establishment of the ACEC and RNA on BLM lands and the
implementation of a comprehensive management plan that includes an
appropriate fire management plan has the potential to significantly
reduce the threats to this species, which are threats generally
associated with urbanization, and other direct and indirect causes of
habitat destruction and fragmentation on BLM lands. The BLM will
consider the use of controlled fire in its management plan for the
Cedar Canyon ACEC (Bureau of Land Management 1994; J. Dougan, pers.
comm. 1997). An equivalent fire management plan and restoration of a
natural fire regime would enhance occupied and potential habitat for F.
mexicanum habitat on Otay Ranch.
B. Overutilization for commercial, recreational, scientific, or
educational purposes
No evidence exists to indicate that overutilization is currently a
factor in the decline of the three species listed in this rule,
although all three are vulnerable to both collection and vandalism.
Simply listing a plant species can precipitate commercial or scientific
interest 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 the listed species more susceptible to collection
by researchers or curiosity seekers (Mariah Steenson pers. comm. 1997,
M. Bosch, U.S. Forest Service in litt. 1997). Both Fremontodendron
mexicanum and Berberis nevinii exist in the nursery trade. Although
seeds and cuttings for nursery stock are occasionally gathered from
natural populations (Susan Jett, Nursery Manager, Rancho Santa Ana
Botanic Garden, in litt. 1997), seed and cuttings for the species in
this rule are reportedly usually derived from existing cultivars
(variety) (Elena Benge, Tree of Life Nursery, San Juan Capistrano,
California, pers. comm. 1995). The Cleveland National Forest has
received requests from two botanical gardens for permits to collect
Ceanothus ophiochilus, although no horticultural collections are
permitted (Winter, in litt. 1995). Access to most of the remaining
occurrences of all three species is limited by private property
boundaries and/or inaccessible, rugged terrain.
Vandalism is considered a threat to Ceanothus ophiochilus and
Berberis nevinii because some interests may view the presence of
sensitive species as an obstacle to development (Mitchell Beauchamp,
Pacific Southwest Biological Services, in litt. 1993). This type of
threat exists for all occurrences of these plants on privately owned
land.
C. Disease or Predation
Disease or predation are not known to be factors affecting the
plant species listed in this rule.
D. The Inadequacy of Existing Regulatory Mechanisms
Existing regulatory mechanisms that could provide some protection
for these species in the United States include: (1) Federal laws and
regulations, including the National Environmental Policy Act (NEPA),
the Endangered Species Act, in those cases where these species occur in
habitat occupied by other listed species, and section 404 of the
Federal Clean Water Act; (2) State laws, including the Native Plant
Protection Act (NPPA), the California Endangered Species Act (CESA),
the California Environmental Quality Act (CEQA), and section 1603 of
the California Fish and Game Code; (3) regional planning efforts
pursuant to the California Natural Community Conservation Planning
Program (NCCP); (4) land acquisition and management by Federal, State,
or local agencies, or by private groups and organizations; and (5)
local land use processes and ordinances.
Federal Laws and Regulations
The National Environmental Policy Act (NEPA) (42 U.S.C. 4321 to
4347) requires disclosure of the environmental effects of projects
within Federal jurisdiction. NEPA requires that each of the project
alternatives recommend ways to ``protect, restore and enhance the
environment'' and ``avoid and minimize any possible adverse effects,''
when implementation poses significant adverse impacts. The NEPA does
not, however, require that the lead agency select an alternative with
the least significant impact to the environment, nor does it prohibit
implementing a proposed action in an environmentally sensitive area (40
CFR 1500 et seq.).
The Act may incidentally afford protection to the species under
consideration in this rule if these species co-exist with species
already listed as threatened or endangered under the Act. The Least
Bell's vireo
[[Page 54963]]
(Vireo bellii pusillus), coastal California gnatcatcher (Polioptila
californica californica), southwestern willow flycatcher (Empidonax
traillii extimus), arroyo toad (Bufo microscaphus californicus),
slender-horned spineflower (Dodecahema leptoceras), and Santa Ana River
woolly star (Eriastrum densiflorum ssp. sanctorum) are listed as
endangered or threatened under the Act and occur within the same
geographical area as the species listed in this rule. These species,
however, are not found in the same habitat as the plant species listed
in this rule. Though Berberis nevinii is known to occur in alluvial fan
scrub, which is also known to be occupied by D. leptoceras, and E.
densiflorum ssp. sanctorum, these species are not known from any
specific site where B. nevinii also occurs. A portion of the range of
B. nevinii overlaps an area of the historical range of the San
Bernardino kangaroo rat (Dipodomys merriami parvus), a federally listed
endangered species. The rediscovery of the San Bernadino kangaroo rat
in this portion of its historical range could afford some incidental
protection to B. nevinii in those areas.
Section 404 of the Clean Water Act, administered by the U.S. Army
Corps of Engineers (Corps), may provide for some conservation or
protection of Berberis nevinii populations along alluvial features.
Alluvial scrub habitats, which historically supported B. nevinii, have
been reduced in extent by over 90 percent due to urban and agricultural
development (Rey-Vizgirdas 1994). The impacts to these habitats must be
considered under CEQA or NEPA and may be regulated, in part, by the
permitting processes of the Corps under section 404 of the Clean Water
Act. Under section 404, the Corps regulates the discharge of fill
material into waters of the United States, which includes navigable and
isolated waters, headwaters, and adjacent wetlands. Section 404
regulations require that applicants obtain an individual permit for
projects to place fill material affecting greater than 1.2 ha (3 ac) of
waters of the United States. Nationwide Permit 26 (33 CFR part 330,
revised on December 20, 1996 (61 FR 65916) was established by the
Department of the Army to facilitate authorization of discharges of
fill into isolated waters (including wetlands and vernal pools) that
cause the loss of less than 1.2 ha (3 ac) of waters of the United
States, and that cause minimal individual and cumulative environmental
impacts. Projects that qualify for authorization under Nationwide
Permit 26 and that affect less than 0.1 ha (0.33 ac) of isolated
waters, including wetlands, may proceed but the permittee must submit a
report to the Corps within 30 days of completion of the work.
Evaluation of the impacts of such projects through the section 404
permit process is, therefore, precluded.
Because the majority of the distributions of these species occur in
upland (nonwetland) habitat or in isolated and fragmented parcels, it
is unlikely that actions affecting the species will require section 404
permits. In addition, emergency flood control measures may circumvent
compliance with these statutes. For example, as part of emergency
measures, vegetation stripping occurred in Riverside and San Bernardino
Counties throughout the potential range of Berberis nevinii after
flooding subsided in the spring of 1993.
State Laws and Regulation
Although State laws at times may provide a measure of protection to
the species, these laws are not adequate to protect the species in all
cases. Numerous activities do not fall under the purview of State laws,
such as certain Federal projects and projects falling under State
statutory exemptions. For example, under CEQA where overriding social
and economic considerations can be demonstrated, a project proposal may
go forward even where adverse impacts to a species are significant.
Pursuant to the Native Plant Protection Act (NPPA) (chapter 10
section 1900 et seq. of the CDFG Code) and the California Endangered
Species Act (CESA) (chapter 1.5, sec. 2050 et seq. of the CDFG Code),
the California Fish and Game Commission listed Berberis nevinii and
Ceanothus ophiochilus as endangered. Although NPPA and CESA prohibit
the ``take'' of State-listed plants (chapter 10 sec. 1908 and chapter
1.5, sec 2080), these statutes inadequately protect against the taking
of such plants through habitat modification or land use change by the
landowner. Under the NPPA, the California Department of Fish and Game
will notify a landowner that a State-listed plant grows on his or her
property. Pursuant to the CDFG Code, where the taking is otherwise in
compliance with State law, the landowner is only required to notify the
agency. This notification is required ``at least 10 days in advance of
changing the land use to allow salvage of such plant'' (chapter 10,
sec. 1913). The requirement for the issuance of take permits for
endangered plants under section 2081 of CESA is currently under review
(A. Malcomb, pers. comm. 1998).
The California Environmental Quality Act (CEQA) (Public Resources
Code, section 21000 et seq.) pertains to projects on non-Federal lands
and requires that a project proponent publicly disclose the potential
environmental impacts of proposed projects. The public agency with
primary authority or jurisdiction over the project is designated as the
lead agency. The lead agency is responsible for conducting a review of
the project and consulting with the other agencies concerned with the
resources affected by the project. 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'' including those that are eligible for listing under NPPA
and CESA. Under CEQA, impacts to State-listed plants are considered
significant and must be addressed. Once significant effects are
identified, the lead agency is faced with two options. These options
are to either require mitigation for effects through changes in the
project or to decide that the ``overriding social and economic
considerations'' make such mitigation infeasible (Title 14, California
Code of Regulations, section 15093). In the cases where overriding
social and economic considerations are found, projects may be approved
that cause significant environmental damage, such as the destruction of
endangered plants. Protection of listed plant species under CEQA is,
therefore, to some extent dependent upon the discretion of the lead
agency.
Regional Planning Efforts
The Service is working with Riverside and San Bernardino Counties
to create multispecies habitat conservation plans under section 10 of
the Act that may benefit Ceanothus ophiochilus and Berberis nevinii.
San Bernardino County and Riverside County have signed planning
agreements with local, State and Federal agencies including the
Service. Although this planning processes is ongoing and the protection
to be provided for these species is yet to be established, such
multispecies plans can provide significant protection to both species.
In the spring of 1995, as previously noted, the landowner of the
Vail Lake Planned Community Area offered the Riverside County Habitat
Conservation Agency (RCHCA) an option to acquire about 6,000 ac,
including the C. ophiochilus population, as part of a conservation bank
(Jeff David and Associates 1995). The option expired in September 1995,
and all of these remaining parcels were recently sold.
[[Page 54964]]
Subsequent to this a conditional use permit was requested for one of
the parcels containing Dodecahema leptoceras, a federally listed
endangered species (M. Shaughnessy, pers. comm. 1997). This parcel
contains an RV park and is adjacent to the parcel where the population
of C. ophiochilus is located. This population comprises about one-half
of the known individuals of C. ophiochilus.
Fremontodendron mexicanum was addressed under the Multiple Species
Conservation Program in southwestern San Diego County, but it was not
covered under the take authority due to insufficient distribution data
and unknown level of conservation (County of San Diego 1996).
Local Land Use Processes and Ordinances
Land-use planning decisions at the local level are made on the
basis of environmental review documents prepared in accordance with
CEQA or the National Environmental Policy Act (NEPA), which may not
fully consider ``foreseeable future'' or ``cumulative'' impacts to
nonlisted species and their habitat. As with section 404 permits
described above, the Service's comments through the NEPA and CEQA
review processes are only advisory.
E. Other Natural or Manmade Factors Affecting Their Continued
Existence.
Berberis nevinii, Ceanothus ophiochilus and Fremontodendron
mexicanum are component species of chaparral, or related habitats, that
are subject to natural fire regimes. These habitat types show evidence
of time-dependent, self-regulating fire cycles under natural conditions
(Minnich 1995). Many plant species have evolved survival responses to
fire either through stump-sprouting after a fire or by germination of
fire resistant seeds (obligate seeders).
Increases in human activity in a fire prone area are generally
accompanied by an increased incidence of local accidental fires, but
less frequent natural fires. Either of these conditions can be
detrimental to the persistence of those species that evolved under
natural fire cycle regimes (Zedler et al. 1983, Dunn 1987).
Fire management practices, often associated with increased
urbanization, may alter fire frequency, fire intensity, season of
occurrence, and location of fires. If the altered fire frequency
pattern falls outside the range of ``normal'' natural fire cycles for a
species, the species composition within the habitat may be altered,
(Minnich et al. 1995) or species may be eliminated from the habitat
(Zedler et al. 1983, Dunn 1985). Under those circumstances, the plant
community will be adversely affected in the long term (Dunn 1987,
Minnich et al. 1995, Zedler 1995).
During fire events, or as part of a fire protection program
associated with nearby urban development, bulldozers may be used to
clear fire breaks through vegetation to stop the advance of a fire.
Fire breaks may increase erosion on slopes and introduce invasive
nonnative species that may slow chaparral recovery. Introduction of
nonnative species can also provide rapid buildup of potential fuel
load, increasing the chance of a short interval between fires, to the
detriment of native species (Zedler 1995).
Frequent fires could eliminate obligate seeding species (species
able to survive in one environment) of the Genus Ceanothus (Zedler et
al. 1983, Zedler 1995). Ceanothus ophiochilus is an obligate seeder and
does not reproduce vegetatively after a fire, although it is dependent
on occasional fires for seed germination (Boyd et al. 1991). Seedlings
of C. ophiochilus appearing after the 1989 fire in the Agua Tibia
Wilderness illustrated this pattern of post-fire seed germination. That
fire apparently fell within the limits of the natural fire regime of
this species. Under high frequency fire regimes, older plants are
eliminated, while younger plants not having had time to reach
reproductive maturity and are unable to set seeds, depleting the
existing seed bank. This sequence results in population declines and
extirpation (Zedler et al. 1983). Increased incidences of fire will
probably accompany increased development in the Lake Vail area.
The effects of an altered fire regime on Berberis nevinii are not
known. Berberis nevinii is able to stump sprout; however, vegetative
propagation has been unsuccessful in cultivation (Mistretta 1989a).
Berberis nevinii propagates by seed in nature, but seed production is
sporadic and fertility is often low (Boyd 1987). Much of the area south
of Vail Lake burned in 1996 (Darin Banks, Rancho Santa Ana Botanic
Garden, in litt. 1997). The actual effect on B. nevinii in the area
will not be immediately assessable, but future data collection may
provide additional information on the species' fire survival
mechanisms.
Because Fremontodendron mexicanum is known from one small
population in the United States, with perhaps fewer than 100
individuals remaining, it continues to be vulnerable to extinction
caused by random events, such as hot, slow-burning fires or fires that
occur too frequently. Although F. mexicanum also has evolved in
association with natural fire cycles, alteration of fire patterns can
significantly affect the viability of this species by destroying plants
and the seed bank, thereby reducing the genetic diversity of the
species. A single fire event could severely impact the chance for
recovery of this species.
The management plan for the Cedar Canyon ACEC will include the use
of fire as part of the management strategy (J. Dougan, pers. comm.
1997) and likely will include restrictions on access. A fire management
plan reflective of a natural fire regime in the Cedar Canyon ACEC is
expected to benefit F. mexicanum. This management plan is yet to be
completed and thus has not been implemented. Other areas of occupied or
potential habitat for reestablishment of F. mexicanum are zoned as
natural open space and are within the privately owned Otay Ranch. The
future management and protection associated with this designation will
likely reduce the threats of urbanization and off-road vehicle traffic.
Genetic variability may be reduced in small populations of limited
distribution (Barrett and Kohn 1991). A single event or series of
events can effectively reduce a species to below recoverable numbers.
Proactive recovery efforts to lessen the threat of such random events
typically involve the establishment of reserves that permanently
protect and manage populations of the species of concern.
Hybrid individuals have been reported in all of the populations of
Ceanothus ophiochilus. The population at Vail Lake is spatially more
isolated from other Ceanothus species but reportedly contains some
hybrid individuals (Boyd et al. 1991). Two populations, located nearby
in the Agua Tibia Wilderness Area, reportedly contain more hybrid
individuals with closely associated C. crassifolius. Various estimates
of the percentage of hybrids in the Agua Tibia populations ranging from
1 to 10 percent were reported by Shaffer (1993). One population in the
Agua Tibia Wilderness is estimated to contain 50 percent hybrids (Boyd
and Banks 1995). The persistence of hybrids may be facilitated by
disturbance of natural fire cycles or artificial clearing.
Hybridization and introgression have been documented in other rare
plants and may lead to their elimination (Rieseberg 1991, Rhymer and
Simberloff 1996, Rieseberg and Swensen 1996). Hybridization can reduce
reproductive fitness and adversely affect random genetic drift (Barrett
and Kohn 1991).
[[Page 54965]]
The degree of introgression among individuals of the various
populations of Ceanothus ophiochilus has not yet been determined.
Most individuals of Berberis nevinii are concentrated in the Vail
Lake area of Riverside County (CNDDB 1997). The species' low
reproductive success rate (Mistretta 1989a) and disjunct distribution
decrease its ability to recover from random detrimental events. Barrett
and Kohn (1991) maintain that characteristics such as low reproductive
success may be the result of random genetic drift. This effect is
amplified in small isolated populations.
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by these species in determining to issue this
final rule. Based on this evaluation, the preferred action is to list
Berberis nevinii, as endangered. Seventeen of the twenty-one native
occurrences recorded by the CNDDB (1997) are imperiled by urban
development, especially in western Riverside County, where parcels in
the planned community development containing most of the plants known
from the area have recently been sold. Only one significant native
occurrence remains in Los Angeles County, and another consists of a
single plant. Five other occurrences in Los Angeles County, and several
not recorded by CNDDB (1997), have been extirpated by development or
habitat modification such as that for flood control. The largest
remaining group of occurrences are found around Vail Lake in
southwestern Riverside County. Development of the site would likely
remove most of the known specimens. Any specimens not directly
destroyed as a result of development would be indirectly affected
through increased competition from invasive exotic species and,
possibly, from altered fire regimes. Although the specific impacts of
an altered fire frequency are not fully understood, it is expected that
they would likely be detrimental to this species (Zedler et al. 1993).
The Service finds that the preferred action is to list
Fremontodendron mexicanum, as endangered. The only known, extant
occurrence in Cedar Canyon on Otay Mountain is imperiled by altered
fire regimes. It is likely that this species will also be indirectly
affected by nearby urbanization and increased competition from exotic
species. In addition, the specific details regarding the protections
and management of the Cedar Canyon ACEC and the natural open space of
the portion of Cedar Canyon on Otay Ranch are not presently known.
There is also substantial, uncontrolled foot traffic through the
canyon, and a consequential threat of deliberately set fires.
The Service finds that Ceanothus ophiochilus is likely to become
endangered within the foreseeable future throughout all or a
significant portion of its range if identified threats are not reduced
or eliminated. Threats to this species include habitat destruction,
alteration, fragmentation, and degradation from urban development, as
well as alteration of fire regimes; the species is fire-dependent for
successful proliferation, and disruption of the natural fire regime can
disrupt or eliminate seedling establishment.
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) must necessarily consider the 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. The outcome of such analysis is that
any action that is found to result in adverse modification of critical
habitat, would almost certainly be found to also jeopardize the
continued existence of the species concerned. Habitat degradation and
destruction are the primary threats to these species. The listing of
these species will ensure that section 7 consultation will occur.
During consultation any potential impacts to the species and their
habitats for any Federal action that may affect these species will be
considered. Federal actions may also affect suitable but unoccupied
habitat important to the survival and recovery of the species. In many
cases, the listing of a species will ensure that Federal agencies
consider the importance of such habitat to the listed species and
consult with the Service where such habitat is impacted
[[Page 54966]]
and determined to be important 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,
particularly for annuals, which are not necessarily visibly present in
the habitat throughout the year. Because a significant portion of a
plant's vegetative structure may not be in evidence during cursory
surveys, a determination of whether a species is actually occupying
suitable habitat is only reliable when done during the growing season.
Therefore, such areas would need to be adequately addressed in any
consultation for these species.
Apart from section 7, the Act does not provide any 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 designation 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 U.S. Immigration and Naturalization
Service and the Federal Highway Administration. Where a Federal nexus
exists, those actions will be addressed, regardless of whether critical
habitat is designated, through the interagency coordination
requirements such as the Fish and Wildlife Coordination Act (FWCA) and
section 7 of the Act that are already in place. Consequently, in the
event these described plant species become listed, any activity with a
Federal nexus that may adversely affect these species would prompt the
requirement for consultation under section 7(a)(2) of the Act,
regardless of whether critical habitat has been designated.
A designation of critical habitat on private lands may have
detrimental effects upon a species. The limited effect of a critical
habitat designation on private lands is often misunderstood by private
landowners whose property boundaries are included within a general
description of critical habitat for a specific species. Landowners may
believe that critical habitat designation will be an obstacle to the
land's development and thus often mistakenly fear that such
designations will become an imposition on the use and enjoyment of
their property. In many cases, despite considerable Service outreach
efforts to the contrary, the reporting and circulation of inaccurate
and misleading anecdotal information within the media has led private
landowners to believe that critical habitat designations will prevent
them from making private use of their lands. In fact, such designation
will affect only those activities requiring a Federal permit or
receiving Federal funding.
A designation of critical habitat on private lands may actually
encourage habitat destruction by private landowners seeking to avoid
endangered species problems. 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 17.61 (endangered plants) and
50 CFR 17.71 (threatened plants) only 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, then, on private lands, collection of, or vandalism to,
listed plants must occur in violation of state law to be a violation of
section 9. 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. Thus, private landowners
concerned about perceived land management conflicts resulting from a
critical habitat designation encompassing their property would likely
face no legal consequences were they to remove the listed species or
destroy its habitat. An unfortunate example of this occurred recently
within the general area where the plants addressed in this rule are
found, where persons have intentionally destroyed known federally
listed plant habitat at a work site (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. Such publication reasonably increases the likelihood
of unwanted notice and potential search and removal activities at
specific sites.
The Service acknowledges that in some situations critical habitat
designation may provide some limited value to the species by notifying
the public about areas important for the species conservation and by
calling attention to those areas in special need of protection.
However, such limited values must be weighed against the reasonably
anticipated detrimental effects to the species. In the present case
because of the widespread misunderstanding about the effects of such
designation on private landowners, and the environment of mistrust and
fear that such misunderstanding often create, the Service concludes
that the detriment to the species from a critical habitat designation
covering non-Federal lands would outweigh the educational benefit of
such designation. The information and education process is more
effectively handled by working directly with landowners and communities
during the recovery planning process and through the section 7
consultation and coordination process where a Federal nexus exists. The
more effective utilization of these existing processes will impart the
same knowledge to the landowners that critical habitat designation
would, absent the resultant confusion and misunderstandings often
accompanying 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 BLM and the U.S. Forest
Service. Also any action that would result in adverse modification
would almost certainly result in likely jeopardy to the species.
Therefore, a designation of critical habitat on these Federal lands
would confer no additional benefit on the species. To the contrary,
particularly on National Forest System lands, a designation of critical
habitat is anticipated to increase the threats to these species from
vandalism and collection. Threats of a similar nature to those
previously identified are likely to result in response to the listing
of a species (Oberbauer 1992, Beauchamp in litt. 1997). Simply listing
[[Page 54967]]
a species can precipitate both legal and illegal commercial or
scientific collection interest. Such interest 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 the species more
susceptible to collection by researchers or curiosity seekers (Mariah
Steenson pers. comm. 1997, M. Bosch, U.S. Forest Service in litt.
1997). The Service has been able to document a recent incident where,
following the publication of critical habitat designation in the
Federal Register, unidentified persons visited a Forest Service
wilderness area where listed plants were located and specifically asked
directions to the location of the plants in question. Several plants
were later found to be missing from the 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 virtue of listing as
threatened or endangered, 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. The Service
therefore, finds that critical habitat designation is not prudent for
Berberis nevinii, Fremontodendron mexicanum and Ceanothus ophiochilus.
More specific reasons why designation of critical habitat is not
prudent for each of these species is addressed in the following
discussion.
Berberis nevinii
Berberis nevinii occurs on both Federal and private lands in
Riverside, San Bernardino and Los Angeles Counties. A large population
occurs in San Francisquito Canyon on the Angeles National Forest in Los
Angeles County (Boyd et al. 1989). A few individuals occur on BLM lands
north of Vail Lake and in the Cleveland National Forest southeast of
Vail Lake (Boyd et al. 1989). Both the BLM and the Forest Service are
aware of the occurrences and habitat of this species on their lands;
these agencies consult 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 Forests to increase
or change their commitment or management efforts for this species, only
to avoid adverse modification of such critical habitat.
On private lands, urban development in the Vail Lake area of
Riverside County threatens the largest group of occurrences of B.
nevinii. Most of the occurrences at Vail Lake would likely be
eliminated by planned development in the area that was approved by
Riverside County and allows subdivision of parcels into 20-ac lots
(Boyd 1991, Shaffer 1993, Jeff David and Associates 1995).
Federal involvement on the private lands where this species occurs
is not anticipated, although a proposal to widen State Route 79 to four
lanes may impact some populations. If listed, any future Federal
involvement through permitting or funding such as through the Federal
Highway Administration or the Corps through section 404 of the Clean
Water Act, would trigger the interagency coordination and consultation
requirements of section 7 where such actions are found to affect this
species. An analysis to determine jeopardy under section 7(a)(2) would
necessarily consider the loss of individual plants associated with
habitat impacts. Therefore, there would be no additional conservation
benefit to the species from designation of critical habitat beyond that
provided by the species' listing.
The threat of vandalism on both Federal and private lands exists
for this species. The very limited protections of section 9(a)(2) of
the Act renders plants particularly vulnerable to unrestricted
collection, vandalism or other damage. Generally, on private lands, a
section 9 violation requires evidence that collection of listed plants
occurred without the consent of the landowner or in knowing violation
of a state law, and that vandalism to plants occurred in violation of
some existing state law such as criminal trespass. On Federal lands, to
make a charge of section 9 violation, the Service would need to prove
malicious intent and that the damage to plants and their habitat was
deliberate. It is very difficult to prove criminal intent, particularly
if the damage is the result of recreational activity such as off-road
vehicle activity, hiking or camping. Vandalism is considered a threat
to Berberis nevinii because some interests may view the presence of
sensitive species as an obstacle to development (Mitchell Beauchamp,
Pacific Southwest Biological Services, in litt. 1993).
Berberis nevinii also exists in the nursery trade. Seeds and
cuttings for nursery stock are occasionally gathered from natural
populations (Susan Jett, Nursery Manager, Rancho Santa Ana Botanic
Garden, in litt. 1997), although many seeds and cuttings are also
derived from existing cultivars (Elena Benge, Tree of Life Nursery, San
Juan Capistrano, California, pers. comm. 1995). Access to most of the
remaining occurrences is limited by private property boundaries and/or
inaccessible, rugged terrain. However, simply listing this species may
precipitate increased interest that could result in collections of wild
specimens in the event their locations were made widely known.
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.
The Service concludes 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 would likely be detrimental for the
reasons mentioned above. The identification of critical habitat would
not increase management or conservation efforts on 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.
The Service has weighed the general lack of benefit beyond that
provided by virtue of listing as threatened or endangered against the
detrimental effects of the increased threat of illegal collection and
vandalism and the potential for private landowner misunderstandings
about the effects of critical habitat designation on private lands, and
concludes that critical habitat for Berberis nevinii is not prudent at
this time because of an expected increase in the degree of threat to
this species from vandalism and collection and an overall lack of
benefit.
Fremontodendron mexicanum
Reliable distribution records for Fremontodendron mexicanum
indicate that it is currently known only from Cedar Canyon on Otay
Mountain in southern San Diego County, California and at Arroyo Seco,
north of San Quintin, Estado de Baja California, Mexico (Wiggins 1980).
BLM manages most of the Cedar Canyon population; about 50 percent of
the habitat occupied or suitable for restoration of F. mexicanum
populations exists on lands administered by the BLM as an Area of
[[Page 54968]]
Critical Environmental Concern (ACEC) and a Research Natural Area
(RNA). The remaining occupied or potential habitat is located on the
privately owned Otay Ranch and has been zoned as natural open space
(Ogden Environmental and Energy Services, Inc. 1992; Tom Oberbauer,
pers. comm. 1998).
Federal involvement on the private lands where this species occurs
is not anticipated. If listed, any future Federal involvement through
permitting or funding, such as through Immigration and Naturalization
Service, Border Patrol activities or the Corps through section 404 of
the Clean Water Act, would trigger interagency coordination and
consultation, where such actions are found to affect this species. An
analysis to determine jeopardy under section 7(a)(2) would consider
loss of individual plants associated with habitat impacts. Therefore,
there would be no additional conservation benefit to the species from
designation of critical habitat beyond that provided by the species'
listing.
The BLM is specifically managing for Fremontodendron mexicanum on
their lands. The agency 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 BLM
to increase or change their commitment or management efforts for this
species, which are considerable, but would only add the requirement
that the agency avoid adverse modification of such critical habitat.
Because the BLM now provides considerable management for
Fremontodendron mexicanum on their lands, and will be subject to the
standards of section 7 consultation upon final listing, the Service
finds that no additional benefits would be provided to the species
above those provided by the actual listing.
Fremontodendron mexicanum exists in the nursery trade. Seeds and
cuttings for nursery stock are occasionally gathered from natural
populations (Susan Jett, Nursery Manager, Rancho Santa Ana Botanic
Garden, in litt. 1997), although seeds and cuttings are also derived
from existing cultivars (Elena Benge, Tree of Life Nursery, San Juan
Capistrano, California, pers. comm. 1995). However, simply listing this
species is expected to precipitate increased interest that could result
in collections of wild specimens if their locations were made widely
known. Publication of precise maps and descriptions of critical habitat
would likely increase the degree of threat to this species from
collection and habitat degradation associated with such collection, and
would likely contribute to its decline.
The threat of vandalism on both Federal and private lands exists
for this species. The very limited protection of section 9(a)(2) of the
Act, render plants particularly vulnerable to unrestricted collection,
vandalism or other damage.
The Service concludes that no benefit over that provided by listing
would result from identification of critical habitat for
Fremontodendron mexicanum and such designation would likely be
detrimental for the reasons discussed above. The BLM is implementing
considerable management for this species on its lands, and the
designation of critical habitat would not change current management
efforts. The identification of critical habitat would not increase
management or conservation efforts on private lands. The Service
believes that conservation of this species on both private and Federal
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.
In making this determination the Service has weighed the value of
any benefits provided by critical habitat designation and compared that
measure of value to that reasonably expected by the virtue of the
species being listed as threatened or endangered. The Service has
appropriately weighted the detrimental effects of the increased threat
of illegal collection and vandalism, as well as the potential for
private landowner misunderstandings about the effects of critical
habitat designation on private lands. In light of this evaluation, the
Service concludes that critical habitat for Fremontodendron mexicanum
is not prudent at this time because of an expected increase in the
degree of threat to this species from vandalism and collection and an
overall lack of benefit.
Ceanothus ophiochilus
Ceanothus ophiochilus occurs at three sites on both private and
Federal lands in southwestern Riverside County, California. One
population of 3,000-5,000 plants occupies seemingly suitable habitat on
privately owned land at Vail Lake. The remaining two populations exist
on land managed by the Cleveland National Forest, where over 4,000
plants exist in the Agua Tibia Wilderness Area. The two populations in
the Agua Tibia Wilderness occupy about 50 percent of the known occupied
habitat of the species and contain a significant number of individuals,
and the Vail Lake population includes the other 50 percent of the known
occupied habitat and plants. The Forest Service is aware of the
occurrences and habitat of this species on its lands and consults with
the Service under section 7 for activities related to other listed
species in the area. The Forest Service would be subject to similar
requirements as a result of this listing. Designation of critical
habitat would not necessarily require the Forest Service to increase or
change its commitment or management efforts for this species, only to
avoid adverse modification of such critical habitat.
On private lands, urban development in the Vail Lake area is a
threat. Planned development in the area was approved by Riverside
County and allows subdivision of parcels into 20 ac (9 ha) lots (Boyd
1991, Shaffer 1993). All of the parcels in the Vail Lake planned
community supporting Ceanothus ophiochilus have been sold. The Service
has recently received notification of filing for a conditional use
permit for the RV park parcel immediately adjacent to the parcel that
supports the C. ophiochilus population.
The Service is working with Riverside County to create a
multispecies habitat conservation plan under section 10 of the Act that
may benefit Ceanothus ophiochilus. Riverside County has signed planning
agreements with local, State and Federal agencies including the
Service. While the specific protections that such a plan could provide
are not yet available, this multispecies plan may provide significant
protection for C. ophiochilus.
Other than potential planning under section 10 of the Act, Federal
involvement on the private lands where this species occurs is not
anticipated. If listed, any future Federal involvement through
permitting or funding, such as through the Federal Highway
Administration or the Corps through section 404 of the Clean Water Act,
would trigger the interagency coordination and consultation
requirements of section 7 where such actions are found to affect this
species. An analysis to determine jeopardy under section 7(a)(2) would
consider loss of individual plants associated with habitat impacts.
Therefore, there would be no additional conservation benefit to the
species from designation of critical habitat beyond that provided by
the species' listing.
The threat of vandalism on both Federal and private lands exists
for this species. The very limited protection of section 9(a)(2) of the
Act, renders plants particularly vulnerable to unrestricted collection,
vandalism or other damage.
[[Page 54969]]
Vandalism is considered a threat to Ceanothus ophiochilus because
some interests may view the presence of sensitive species as an
obstacle to development (Mitchell Beauchamp, Pacific Southwest
Biological Services, in litt. 1993). As previously noted, a rather
unfortunate example of this occurred recently where persons have
intentionally destroyed known federally listed plant locations at a
work site in southern California (T. Thomas, U.S. Fish and Wildlife
Service in litt.). This type of threat exists for all occurrences of
these plants on privately owned land.
Collection is not believed to be a significant threat to Ceanothus
ophiochilus at this time. However, simply listing this species could
precipitate increased interest that could result in collections both
legal and illegal of wild specimens if their locations were made widely
known. 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.
The Cleveland National Forest has received requests for permits to
collect Ceanothus ophiochilus, although no horticultural collections
have been permitted (Winter, in litt. 1995).
The Service concludes that no benefit over that provided by listing
would result from identification of critical habitat for Ceanothus
ophiochilus and such designation would likely be detrimental for the
reasons previously mentioned. The identification of critical habitat
would not increase management or conservation efforts on private lands.
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. The Service has
weighed the general lack of benefit beyond that provided by virtue of
listing as threatened or endangered against the detrimental effects of
the increased threat of illegal collection and vandalism and the
potential for private landowner misunderstandings about the effects of
critical habitat designation on private lands, and concludes that
critical habitat for Ceanothus ophiochilus is not prudent at this time
because of an expected increase in the degree of threat to this species
from vandalism and collection and an overall lack of benefit.
In conclusion, the Service, for each of these species has weighed
the value of any benefit provided by virtue of being listed as
threatened or endangered. The Service has compared that value to the
detrimental effects of the increased threat of collection and vandalism
and the potential for private landowner misunderstandings about the
effects of critical habitat designation on private lands. The Service
finds, in light of such factors, that designation of critical habitat
for Berberis nevinii, Ceanothus ophiochilus and Fremontodendron
mexicanum is not prudent at this time because of an expected increase
in the degree of threat to these species from vandalism and collection
and an overall lack of benefit.
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
practices. Recognition through listing results in public awareness and
conservation actions by Federal, State, and local agencies, private
organizations and individuals. The Act provides for possible land
acquisition 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)(2) requires Federal agencies to ensure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of a species or 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. Federal agencies
expected to have involvement with section 7 regarding Berberis nevinii,
Fremontodendron mexicanum, and Ceanothus ophiochilus include the U.S.
Forest Service, BLM, and the Immigration and Naturalization Service
Border Patrol through their management activities and, for B. nevinii,
the Army Corps of Engineers through its permit authority under section
404 of the Clean Water Act. These agencies either administer lands
containing these species or authorize, fund, or otherwise conduct
activities that may affect these species.
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
apply. Section 4(d) of the Act allows for the provision of such
protection to threatened species through regulation. This protection
may apply to Ceanothus ophiochilus in the future if such regulations
are promulgated. Seeds from cultivated specimens of threatened plants
are exempt from these regulations provided that their containers are
marked ``Of Cultivated Origin.'' Certain exceptions to the provisions
also apply to agents of the Service and State conservation agencies.
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. All three
of the species in this rule are known to occur on lands under Federal
jurisdiction. Collection, damage, or destruction of listed species on
Federal lands is prohibited except as authorized under section 7 or
section 10(a)(1)(A) of the Act. Such activities on non-Federal lands
would constitute a violation of section 9 if 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, and
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
[[Page 54970]]
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.
Berberis nevinii and Fremontodendron mexicanum are considered
attractive and are currently in commercial trade. Intrastate commerce
(commerce within a State) of listed plant species is not prohibited
under the Act; however, interstate and foreign commerce (sale or
offering for sale across State or international boundaries), will
require a Federal endangered species permit. Other than possible
interstate commerce by the public that will be affected by this
listing, the Service is not aware of any other activities being
conducted by the public that will be affected by this proposal and
result in a violation of section 9. Questions regarding whether
specific activities will constitute a violation of section 9 should be
directed to the Field Supervisor of the Carlsbad Field Office (see
ADDRESSES section).
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 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 and horticultural exhibition,
educational purposes or special purposes consistent with the purposes
of the Act. It is anticipated that trade permits will be sought and
issued for all three of the plant species considered in this rule; two
of these species, Berberis nevinii and Fremontodendron mexicanum, are
currently in commercial trade.
Requests for copies of regulations on listed plants and inquiries
regarding them may be addressed the U.S. Fish and Wildlife Service,
Ecological Services, Endangered Species Permits, 911 N.E. 11th Avenue,
Portland, Oregon, 97232-4181 (telephone 503/231-2063, FAX 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 Act. A notice outlining the Service's reasons for this
determination was published in the Federal Register on October 25, 1983
(48 FR 49244).
Required Determinations
This rule does not contain any information collection requirements
for which the Office of Management and Budget (OMB) approval under the
Paperwork Reduction Act of 1995, 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 Cited
A complete list of all references cited in this rule are available
upon request from the Carlsbad Field Office (see ADDRESSES above).
Author: The primary authors of this document are Dr. Gary D.
Wallace, and the staff of the Carlsbad Field Office (see ADDRESSES
section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, the Service amends 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
Scientific name Common name listed habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Flowering Plants
* * * * * * *
Berberis nevinii................. Nevin's barberry.... U.S.A. (CA)........ Berberidaceae...... E 648 NA NA
* * * * * * *
Ceanothus ophiochilus............ Vail Lake ceanothus. U.S.A. (CA)........ Rhamnaceae......... T 648 NA NA
* * * * * * *
Fremontodendron mexicanum........ Mexican flannelbush. U.S.A. (CA), Mexico Sterculiaceae...... E 648 NA NA
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 54971]]
Dated: September 29, 1998.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-26859 Filed 10-9-98; 8:45 am]
BILLING CODE 4310-55-P
