[Federal Register: September 25, 2007 (Volume 72, Number 185)]
[Rules and Regulations]
[Page 54377-54384]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25se07-18]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018--AU77
Endangered and Threatened Wildlife and Plants; Prudency
Determination for the Designation of Critical Habitat for Trichostema
austromontanum ssp. compactum
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of final determination.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have
reconsidered whether designating critical habitat for Trichostema
austromontanum ssp. compactum, a plant, is prudent. We listed this
taxon as threatened under the Endangered Species Act of 1973, as
amended (Act), in 1998; at that time, we determined that designation of
critical habitat was not prudent, because designation would increase
the degree of threat to the taxon and would not benefit the taxon. As a
consequence of a settlement agreement, we withdrew our previous not-
prudent determination, and agreed to reevaluate the prudency of
designating critical habitat. However, based on our review and
evaluation of the best scientific and commercial information available,
we believe that designation of critical habitat continues to be not
prudent for T. a. ssp. compactum.
DATES: This rule becomes effective on October 25, 2007.
ADDRESSES: Comments and materials we receive, as well as supporting
documentation used in the preparation of this determination, will be
available for public inspection, by appointment,
[[Page 54378]]
during normal business hours, at the Carlsbad Fish and Wildlife Office,
6010 Hidden Valley Road, Carlsbad, CA 92011 (telephone 760-431-9440).
The final determination will also be available via the Internet at
http://www.fws.gov/carlsbad.
FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad
Fish and Wildlife Office, telephone, 760-431-9440; facsimile, 760-431-
9624.
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics directly relevant to
the final prudency determination. For more information on biology,
ecology, and taxonomy of Trichostema austromontanum ssp. compactum,
refer to the final rule listing this taxon as threatened published in
the Federal Register on September 14, 1998 (63 FR 49006), and the
notice of proposed prudency determination for the designation of
critical habitat for this taxon published in the Federal Register on
September 26, 2006 (71 FR 56094).
Taxonomy and Description
Trichostema austromontanum ssp. compactum, a member of the
Lamiaceae (mint family), was described by F. Harlan Lewis (1945, pp.
275-303) based on specimens collected in 1941 by M. L. Hilend in
Riverside County, California. The taxon occurs on the margins of a
single vernal pool (Bauder 1999, p. 13; Fraga and Wall 2007, p. 11).
Trichostema austromontanum ssp. compactum is a compact, soft-villous
(with long, shaggy hairs) annual plant, approximately 4 inches (10
centimeters) tall, with short internodes (stem segments between leaves)
(Lewis 1945, pp. 284-386, Lewis 1993, p. 732), elliptic leaves, and
blue flowers in a five-lobed corolla. The two stamens are blue. The
fruit consists of four smooth, basally joined nutlets. This taxon
flowers from July to November (Fraga and Wall 2007, pp. 2-5).
Threats
For a discussion of the threats to this species please refer to the
final rule listing this taxon as threatened (September 14, 1998; 63 FR
49006), our July 28, 2006, 5-year review (available at http://
www.fws.gov/carlsbad), and the notice of proposed prudency
determination for the designation of critical habitat for this taxon
published in the Federal Register on September 26, 2006 (71 FR 56094).
Previous Federal Actions
On September 13, 2004, the Center for Biological Diversity (CBD)
and California Native Plant Society (CNPS) challenged our failure to
designate critical habitat for this taxon and five other plant species
(Center for Biological Diversity, et al. v. Gale Norton, Secretary of
the Department of the Interior, et al., ED CV-04-1150 RT (SGLx) C. D.
California). The CBD and CNPS alleged that we failed to provide
evidence in the final listing rule supporting our determination that
designation of critical habitat would not be beneficial to the species,
and that we failed to establish how the publication of critical habitat
maps would increase the threat to the species. Without reaching any
conclusions on the merits of the previous decision, we agreed to submit
for publication in the Federal Register a withdrawal of our previous
not-prudent determination, and a proposed designation of critical
habitat, if prudent and determinable, on or before September 20, 2006,
and a final rule by September 20, 2007. On September 26, 2006, we
published a notice proposing a new not-prudent determination for the
designation of critical habitat for Trichostema austromontanum ssp.
compactum, and announced the opening of a 60-day public comment period
on the proposed determination (71 FR 56094). This notice of final
determination complies with the April 14, 2005, settlement agreement.
For a discussion of the Federal actions that occurred prior to the
2006 proposed determination, please refer to the ``Previous Federal
Actions'' section in the final rule listing this taxon as threatened
(September 14, 1998; 63 FR 49006), and the notice of proposed prudency
determination for the designation of critical habitat for this taxon
published in the Federal Register on September 26, 2006 (71 FR 56094).
Summary of Comments and Recommendations
We requested written comments from the public during a 60-day
comment period on the notice of proposed prudency determination for the
designation of critical habitat for Trichostema austromontanum ssp.
compactum on September 26, 2006 (71 FR 56094). We also contacted
appropriate Federal, State, and local agencies; scientific
organizations; and other interested parties and invited them to comment
on the proposed determination.
During the comment period that opened on September 26, 2006, and
closed on November 27, 2006, we received four comments directly
addressing the proposed determination: three from peer reviewers and
one joint comment letter from the Center for Biological Diversity and
the Native Plant Conservation Campaign. In the following summary, we
have addressed the comments we received; we have also incorporated
these comments into the prudency determination as appropriate. We did
not receive any requests for a public hearing.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited expert opinions from four knowledgable individuals
with scientific expertise that included familiarity with the species,
the geographic region in which the species occurs, and conservation
biology principles. We received responses from three of the peer
reviewers. The peer reviewers generally concurred with our methods and
found our information to be accurate. Peer review comments are
addressed in the following summary and incorporated into this final
prudency determination as appropriate.
Peer Reviewer Comments
1. Comment: The proposed prudency determination stated that
Trichostema austromontanum ssp. compactum is distributed on the
northwestern edge of its vernal pool habitat and that the plants flower
in July and August. One peer reviewer commented that the plant is found
most frequently along the northern margin but that the plant is also
distributed on the northeastern and eastern edge of the vernal pool as
well as the northwestern edge. The commenter also stated that the peak
bloom for this species may be in July and August, but that the plant
was also found in flower from July through November of 2006.
Our Response: We have incorporated this information on the
distribution and flowering period of this taxon into the ``Taxonomy and
Description'' section of this final prudency determination.
2. Comment: The peer reviewers had differing opinions about our
assertion that the publication of critical habitat could bring more
visitors to the location where the plant grows. Two peer reviewers
agreed that the best way to protect the species is to reduce traffic to
the area and lower its visibility. However, one peer reviewer stated
that the publication of critical habitat maps would not significantly
increase visitation to the area because this taxon is not a showy
plant, is not sought after by hobbyists or professional botanists, and
is unlikely to draw casual visitors.
Our Response: We continue to conclude that designation of critical
habitat is not prudent at this time.
[[Page 54379]]
Direct threats associated with unregulated visitation to the area have
apparently decreased as a result of management actions initiated by the
California Department of Parks and Recreation (CDPR). While this taxon
may not be sought after by a large number of hobbyists or professional
botanists, the vernal pool occupied by the taxon was impacted by
recreation and plants were lost to trampling prior to the installation
of barriers by the CDPR. Since the ecosystem where Trichostema
austromontanum ssp. compactum grows is vulnerable to disturbance, and
is the only known location where this unique ecosystem is found within
the San Jacinto Mountains, all possible actions should be taken to
protect this ecosystem from further degradation and disturbance. We
believe that the act of designating critical habitat could bring
additional visitors to the area because its location would be published
with explicit geographic coordinates. An increase in visitation would
increase the degree of threat to the taxon from trampling and would
directly contradict the efforts of the CDPR to restrict visitation to
this area and conserve this species.
3. Comment: One peer reviewer stated that the Service should
provide quantifiable and verifiable examples of where past designations
of critical habitat, or other actions that publicize the location of a
listed species, have resulted in damage to a species or its habitat
from tremendous increases in visitation and trampling.
Our Response: The District Superintendent of the Inland Empire
District of California State Parks (CDPR) has expressed concern to us
that the critical habitat designation process may place this plant at
increased risk via increased visitation (Watts 2006). Prior to its
listing under the Act, Trichostema austromontanum ssp. compactum was
impacted by trampling associated with recreational use of its habitat.
In recent years, this threat has been reduced by conservation measures
implemented by the CDPR, which include installing barriers, removing
signs, and removing the location of this area from maps of the park.
Because these measures have been successful in reducing threats to the
taxon, we believe that any action that contravenes these measures can
be expected to increase threats to the taxon. We believe that
publication of specific locations and maps associated with a critical
habitat designation for this taxon, with the attendant publicity that a
designation would likely generate, can be expected to increase interest
in the area where the taxon is found because of the interest that the
public and scientific community have in rare, threatened, and
endangered species, and in unique ecosystems. We believe that this
interest could lead to increased visitation to the only area where T.
a. ssp. compactum is found, thereby increasing the threat of trampling
to this species.
We know of one specific example of a case where the designation of
critical habitat resulted in higher visitation to an area and higher
collection pressure. In the prudency determination for the rock gnome
lichen (66 FR 51445; October 9, 2001), we cited the case of another
federally listed North Carolina mountain plant for which critical
habitat was designated; the taxon was severely impacted by collectors
immediately after the critical habitat maps were published. This
collection happened even though this plant was not previously known to
be desired by rare plant collectors and had never been offered for sale
in commercial trade. For the rock gnome lichen itself (66 FR 51445;
October 9, 2001), we documented that after the species was listed, an
illegal collection occurred at a location within a National Park, and
another population outside the Park was vandalized for unknown reasons
(the lichens were scraped off the rock to form graffiti). Thus,
although Trichostema austromontanum ssp. compactum may not be sought
after by a large number of hobbyists or professional botanists at
present, critical habitat designation could increase interest and lead
to increased visitation.
Due to the rarity of Trichostema austromontanum ssp. compactum and
its fragile nature, we do not want to increase the threats to it by
drawing attention to its location. In years when climatic conditions
are unfavorable to the taxon, only a few individuals may be present at
any one time or location and it would be relatively easier for a small
amount of activity to destroy the majority of the plants. In another
study of an endangered plant, demographic modeling results indicated
that when the effects of trampling and bad climatic conditions were
coupled, extinction was accelerated (Maschinski et al. 1997). The fact
that CDPR has invested money and effort to minimize the visibility of
this area to recover this species and its unique habitat indicates that
CDPR shares our concern about impacts associated with increased
visitation to the area.
4. Comment: One peer reviewer agreed that the only way to protect
Trichostema austromontanum ssp. compactum was to reduce traffic to the
area and to lower its public visibility; however, the peer reviewer
stated that critical habitat should be designated because a future
Federal project may impact this area. While acknowledging that a
Federal project in this area appears unlikely, this peer reviewer gave
examples of three California State Parks where unexpected projects with
a Federal nexus have been proposed: the power line through Anza-Borrego
State Park (Sunrise Powerlink Project); the toll road through San
Onofre State Park; and the expansion of the border fence (US/Mexico
Border Infrastructure Project) in Border Field State Park. The peer
reviewer stated that none of these projects were foreseen, but the
presence of critical habitat could provide additional protection on
State lands against unforeseen Federal projects.
Our Response: The locations of the State Parks cited by the peer
reviewer may have contributed to the ``unforeseen'' projects being
proposed in those areas. For example, Border Fields State Park is
directly on the United States/Mexico border and San Onofre State Park
is adjacent to residential development and Interstate 5; the proximity
of these parks to existing infrastructure may make these parks more
vulnerable to the expansion of existing infrastructure. Also, the
alignment for the Sunrise Powerlink Project through Anza-Borrego State
Park is proposed within an existing utility easement.
On the basis of a review of current infrastructure and regional
planning efforts and projections, the area occupied by Trichostema
austromontanum ssp. compactum is not adjacent to existing or proposed
urban development or large-scale infrastructure, nor is it traversed by
any existing or planned utility easements. Also, the steep terrain
surrounding the State Park (on Mount San Jacinto) makes future utility
and infrastructure projects unlikely. In addition, as discussed in the
``Benefits to the Species from Critical Habitat Designation'' section
of the proposed determination, the specific area where this plant is
found is a designated State of California Natural Preserve, which means
that protection and management of sensitive resources is the highest
priority for this area. As a result of these factors, we do not foresee
any future Federal projects that would result in destruction or adverse
modification of the habitat for this taxon.
However, if a Federal project was proposed that could negatively
impact Trichostema austromontanum ssp. compactum, a section 7
consultation would be required. The designation of critical habitat
would benefit the species by ensuring that a Federal project would
[[Page 54380]]
not result in the destruction or adverse modification of the critical
habitat. However, because of the low likelihood of a project with a
Federal nexus occurring in the taxon's habitat, we believe that the
increased threat to the plant due to potential increased human
visitation outweighs the benefits of designating critical habitat for
this taxon (see ``Prudency Determination'' section below for a detailed
discussion).
5. Comment: One peer reviewer commented that an alternate location
with suitable habitat should be sought so that an introduced population
could be created and sustained.
Our Response: In the preparation of this determination, we asked
individuals knowledgeable about the area where Trichostema
austromontanum ssp. compactum is found if they knew of any additional
vernal pool habitat where another population may currently exist or
where a population could be introduced. No additional vernal pool
habitat is known to occur within or adjacent to San Jacinto State Park.
Public Comments
6. Comment: One commenter disagreed with our statement in the
proposed determination that information on the location of Trichostema
austromontanum ssp. compactum and its habitat is no longer available on
the internet and provided links to two Web sites containing postings on
rare plant habitat. The commenter also stated that interested parties
could easily access additional information on the location on internet-
accessible herbarium databases.
Our Response: We acknowledge that information regarding the
location of the taxon and its habitat is available; however, the
location information has never been presented to the public at the
level it would be through the publicity that accompanies the
publication of a critical habitat rule. One of the Web sites the
commenter cited provides aerial maps and information about user-
specified locations. However, the location information provided on the
Web site is somewhat general and would likely be difficult to use to
find the area where the taxon occurs. Also, the information on the Web
site states that there is no official State Park map because the area
is a wildlife preserve and the Park tries to limit the number of
visitors. The second Web site that the commenter provided contains
general information about the species and only regional and county-
level information about the location of the area occupied by this
taxon. As noted by the commenter, online herbaria also provide textual
information about the location of this species. However, location
information provided by these types of databases is often general.
Also, these online herbarium databases do not include mapped
information and are not likely visited by the public at large.
Therefore, currently available location information is limited and
unlikely to be sought out by the general public. The designation of
critical habitat, however, would result in a single document--including
precise information about the species, where it is found, and a map
with geographic coordinates--being published in the Federal Register. A
primary purpose of the Federal Register is to make information readily
accessible to the public, in a form that is easy to understand,
regarding decisions made by the Federal government.
7. Comment: One commenter stated that possible increases in the
number of visitors to the area where Trichostema austromontanum ssp.
compactum grows following designation of critical habitat could be
minimized through a variety of mechanisms after designation.
Our Response: The commenter did not provide any suggestions of the
type of mechanisms that could be used to minimize visitation following
the publication of critical habitat maps.
8. Comment: One commenter stated that the analysis for the prudency
determination does not address the issue of global climate change. The
commenter stated that species like Trichostema austromontanum ssp.
compactum are vulnerable to the effects of global climate change
because of their small population size and their location at high
altitudes (Parmesan 2006).
Our Response: The article cited by the commenter (Parmesan 2006)
reviews several cases where climate change has resulted in shifts in
species' phenology, distribution, and in some cases extinction or
extirpation. We are not currently aware of any species-specific
information indicating that global climate change is a potential threat
for Trichostema austromontanum ssp. compactum, nor did the commenter
provide any species-specific information. At this time, we do not know
how climate change will affect T. a. ssp. compactum. Currently, the
habitat where this taxon is found is isolated and a function of the
local topography. If changes in climate shift the timing or the amount
of precipitation or the amount of evaporation at this location, T. a.
ssp. compactum could be affected; however, we do not currently have
information on how and to what extent the taxon might be affected.
Furthermore, including an attempt to address any potential impacts of
global climate change to T. a. ssp. compactum would not alter our
critical habitat prudency analysis in this situation. An analysis of
such a potential threat would not change our conclusion that the
identification of critical habitat for T. a. ssp. compactum can be
expected to increase the degree of threat from trampling, and that any
benefits resulting from a designation are outweighed by that expected
increase in human threat to the taxon.
9. Comment: One commenter stated that critical habitat allows for a
set of checks and balances that support rare species conservation under
unforeseen future changes in management.
Our Response: If a Federal project was proposed that could
negatively impact Trichostema austromontanum ssp. compactum, a section
7 consultation would be required. The designation of critical habitat
would benefit the species by ensuring that a Federal project would not
result in the destruction or adverse modification of the designated
critical habitat. However, because of the low likelihood of a project
with a Federal nexus occurring in the taxon's habitat, we believe that
the increased threat to the plant due to potential increased human
visitation outweighs the benefits of designating critical habitat for
this taxon (see ``Prudency Determination'' section below for a detailed
discussion). In addition, we do not foresee any changes in management
that would result in destruction or adverse modification of the habitat
for this taxon, based on: (1) The considerable management effort that
CDPR has already undertaken to conserve T. a. ssp. compactum; (2)
CDPR's commitment to work with us, California Department of Fish and
Game, California Native Plant Society and Rancho Santa Ana Botanic
Garden to establish a long-term conservation strategy for this taxon;
and (3) the fact that specific area where this plant is found is a
designated State of California Natural Preserve, which means that
protection and management of sensitive resources is the highest
priority for this area.
Summary of Changes From the Proposed Prudency Determination
We made changes in this final prudency determination on the basis
of public or peer review comments and information received during the
open comment period. Specifically we:
1. Added information related to the distribution and time of
flowering for the species (see response to Comment 1 and the
``Background'' section);
[[Page 54381]]
2. Added information about the need for future Federal projects to
consult under section 7(a)(2) of the Act (see response to Comment 4);
and
3. Clarified the suggestion that no information is available on the
internet relating to the location where this species occurs (see
response to Comment 6).
These revisions added clarity and specificity to the rule; however
we did not change our determination that the designation of critical
habitat is not prudent at this time.
Prudency Determination
Background
Section 4(a)(3) of the Act and implementing regulations (50 CFR
424.12) require that, to the maximum extent prudent and determinable,
we designate critical habitat at the time a species is determined to be
endangered or threatened. Regulations under 50 CFR 424.12(a)(1) state
that the designation of critical habitat is not prudent when one or
both of the following situations exist: (1) The species is threatened
by taking or other human activity and the identification of critical
habitat can be expected to increase the degree of threat to the
species; or (2) such designation of critical habitat would not be
beneficial to the species.
In our September 14, 1998 final listing rule (63 FR 49006), we
determined that a designation of critical habitat could increase the
degree of threat to Trichostema austromontanum ssp. compactum, and that
such designation also would not be beneficial to the taxon. In the
final listing rule (63 FR 49019) we stated:
(1) Trichostema austromontanum ssp. compactum occurs only in a
wilderness area on State [CDPR] lands with little potential for Federal
involvement. Trails, signage, map notations, and references to the
habitat area have been removed by the State to reduce impacts to this
highly localized taxon;
(2) Designation of critical habitat would have little benefit to
this taxon and would not increase the commitment or management efforts
of the State; and
(3) Designation of critical habitat likely would be detrimental to
this taxon because publishing maps and descriptions of the exact
locality identifies the site as a unique area. Such a distinction may
encourage recreational use of the area and negatively impact the taxon.
Pursuant to the Court's April 14, 2005, stipulated settlement
agreement and order, and as announced in our September 26, 2006,
proposed not-prudent determination (71 FR 56094), we have withdrawn our
previous not-prudent determination. Consistent with the requirements of
the Act and our aforementioned settlement agreement and order, we are
now finalizing our new determination of not prudent for Trichostema
austromontanum ssp. compactum. The determination involves a weighing of
the expected increase in threats associated with a critical habitat
designation against the benefits gained by a critical habitat
designation. An explanation of this ``balancing'' evaluation follows.
We listed Trichostema austromontanum ssp. compactum under the Act
on the basis of threats of trampling associated with recreational
activities and low numbers of individual plants. Before the CDPR took
steps to minimize the visibility of the sensitive habitat that supports
T. a. ssp. compactum, there was a clearly marked trail to the location.
The area was used for many different types of recreational uses. These
activities impacted the sensitive vegetation in the area by trampling
live plants and creating multiple footprints in the wet soil around the
margin of the vernal pool, further impacting habitat through soil
compaction and alteration of hydrology (Hamilton 1983, pp. 75-88; 63 FR
49006). Since listing, the CDPR has continued to implement management
actions designed to reduce visitation to this area. It has removed
reference to the area from its trail maps and signs, and removed all
markers for trails to this area in order to reduce recreational use.
Although the only known location was publicly available in the past,
the currently available location information is limited and unlikely to
be sought out by the general public. In contrast, the public notice
requirements of the Act, including publication of precise site location
information and a map in the Federal Register and the publicity that
accompanies the publication of a critical habitat rule, are intended to
make information readily accessible to the general public in a form
that is easy to understand.
The CDPR has continued its efforts to address the threats from
trampling by further excluding recreational users from the area. In
2000, CDPR erected a barrier on the trail to the area to exclude horses
and pack animals from this sensitive area. In 2002, they designated the
vernal pool and the surrounding area as a Natural Preserve (CDPR 2002
p. 62). A Natural Preserve is a State designation that prioritizes
resource protection within the area over recreational use and,
therefore, measures can be taken to ensure the long-term survival of
Trichostema austromontanum ssp. compactum. Recent visits to the site by
the Service suggest that there has been a decrease in equestrian use of
the area as a result of the barrier installed along the trail (Snapp-
Cook 2006; Wallace 2003, 2005).
As part of the process of determining the prudency of designating
critical habitat for Trichostema austromontanum ssp. compactum, we met
with CDPR to discuss management activities now being conducted for this
taxon. Ongoing and past actions that CDPR has initiated, partially due
to the listing of this taxon, appear to be adequate to protect and
maintain the plant's habitat. On a 2006 field visit to the site, we
only found minimal signs of human use at the vernal pool, reflected in
a worn trail passing the upper boundary of the vernal pool. However, we
did not see evidence of more damaging activities such as trash or fire
pits that would be associated with camping, nor hoof prints or horse
manure that would be associated with equestrian use (Snapp-Cook 2006).
This observation contrasted with the condition of the site prior to the
CDPR implementing management actions for this plant and the condition
of the site described at the time of listing (Hamilton 1983; 63 FR
49006). We were able to observe T. a. ssp. compactum around the margins
of the vernal pool and none of the plants showed any signs of damage
from trampling on that particular site visit.
To support the effectiveness of the management measures that CDPR
has put in place, a formal study to monitor the recreation use of the
area is needed. The Service has recently helped the State of California
secure funding to conduct a study to determine the condition of the
population and the effectiveness of the management by CDPR. Funding has
also been secured to survey and sign the legal boundaries of the
established Natural Preserve so the regulations of the Natural Preserve
can be enforced. In addition, a seed banking program that includes
collection of seeds, a conservation strategy, and a monitoring program
will be established. Through this funding, we are committed to work
with CDPR, California Department of Fish and Game, California Native
Plant Society and Rancho Santa Ana Botanic Garden to establish a long-
term conservation strategy for Trichostema austromontanum ssp.
compactum. These conservation actions were previously recommended in a
research project that focused on T. a. ssp. compactum (Bauder 1999, p.
38), and should provide additional protection and help conserve this
taxon.
[[Page 54382]]
While the primary threat to Trichostema austromontanum ssp.
compactum--trampling--appears to have been minimized, little
information exists on the status of the taxon. To obtain all available
information on this taxon, we initiated a 5-year status review in
accordance with section 4 of the Act. We published a notice announcing
the initiation of this 5-year review and the opening of the first 60-
day comment period in the Federal Register on July 7, 2005 (70 FR
39327). We published another notice reopening the comment period for an
additional 60 days in the Federal Register on November 3, 2005 (70 FR
66842). As part of our review, we evaluated the federally listed status
of this taxon based on the threats to the plant and its habitat, and
recommended that no change be made to the listing status until a few
specific conservation actions under way by the CDPR have been
concluded. The completed 5-year review for this taxon is available upon
request from the Field Supervisor, Carlsbad Fish and Wildlife Office
(see ADDRESSES section) or for downloading from the following Web site:
http://www.fws.gov/carlsbad.
Increased Threat to the Taxon by Designating Critical Habitat
The process of designating critical habitat can be expected to
increase human threats to Trichostema austromontanum ssp. compactum by
increasing the visibility of this plant and its location. Along with
maps published in the Federal Register, a critical habitat designation
generally results in the news media publishing articles in local
newspapers and/or special interest Web sites, usually with maps of the
critical habitat and photos of the rare species. This type of publicity
could generate increased interest in the species by both the public and
the scientific community. In this particular case, T. a. ssp. compactum
occurs within a State Park with a high rate of visitation. We are
concerned that the publication of maps outlining the only location of
this rare taxon will result in increased visitation to the area.
Trichostema austromontanum ssp. compactum is small and hard to see
because it blends in with other short herbaceous plants on the ground.
Careful and detailed training is needed to identify this taxon. It is
likely that people visiting the critical habitat would not find the
plant and, in the act of looking for it, disturb its sensitive habitat.
In addition, because this area has been designated as a Natural
Preserve and CDPR manages the area to minimize recreational use, no
signed trails or observation areas are in place that could allow for
interested persons to observe the plant from a non-intrusive location.
Thus, even well-meaning and informed visitors may cause significant
damage by inadvertently trampling these tiny plants and adversely
affecting the habitat.
The District Superintendent of the Inland Empire District of
California State Parks has expressed concern to the Service that the
critical habitat designation process may place this plant at increased
risk via increased visitation (Watts 2006). Our publication of a
critical habitat map identifying the location and subsequent publicity
of this action would be counter to conservation actions taken by CDPR
to make the area less visible. Prior to these actions to minimize
recreational impacts to this taxon, it was apparent that the plant was
in danger of going extinct as a consequence of impacts associated with
visitation to the areas and recreational use of the taxon's habitat.
The small size and delicate structure of this plant make it especially
vulnerable to trampling by people and animals (Lewis 1945, pp. 284-386;
Hamilton 1996). Adverse impacts to this taxon associated with
visitation to the area and recreational use of this taxon's habitat led
to the listing of Trichostema austromontanum ssp. compactum. The
actions undertaken by CDPR once these concerns were evident began to
reverse the negative impacts to the taxon from recreational activities.
Following the listing of this plant, CDPR continued to provide measures
that were designed to recover it. These actions primarily consisted of
removing the location of the taxon's habitat from information available
to the public at this State Park. It is important that these and
further conservation efforts continue so that this taxon no longer
requires the protections afforded it under the Act. We believe that
identification of critical habitat for this taxon would again provide
specific information to the public about the taxon's location,
undermining the conservation efforts and progress achieved by CDPR, and
can be expected to increase the degree of threat to this plant from
human activity.
In addition to increasing threats to this taxon and countering past
and ongoing conservation actions by the State of California,
designating critical habitat for this plant would not support our
ongoing partnership with CDPR. Most federally listed species in the
United States will not recover without the cooperation of non-Federal
landowners. Stein et al. (1995, p. 400) found that only about 12
percent of listed species were found almost exclusively on Federal
lands (i.e., 90 to 100 percent of their known occurrences restricted to
Federal lands) and that 50 percent of federally listed species are not
known to occur on Federal lands at all. Given the distribution of
listed species with respect to land ownership, conservation of listed
species in many parts of the United States is dependent upon working
partnerships with a wide variety of entities and the voluntary
cooperation of many non-Federal landowners (Wilcove and Chen 1998, p.
1407; Crouse et al. 2002, p. 720; James 2002, p. 271). Building
partnerships and promoting voluntary cooperation of landowners are
essential to understanding the status of species on non-Federal lands
and are necessary to implement recovery actions such as reintroducing
listed species, habitat restoration, and habitat protection. Therefore,
to achieve the conservation of Trichostema austromontanum ssp.
compactum, it is necessary to maintain our partnership with CDPR, and
to support CDPR's conservation efforts, including the efforts to
minimize the availability of information regarding the plant's
location.
Benefits to the Species From Critical Habitat Designation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. Decisions
by the 5th and 9th Circuit Court of Appeals have invalidated our
definition of ``destruction or adverse modification'' (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378
F. 3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife
Service et al., 245 F.3d 434, 442F (5th Cir. 2001)), and we do not rely
on this regulatory definition when analyzing whether an action is
likely to destroy or adversely modify critical habitat. Under the
statutory provisions of the Act, we determine destruction or adverse
modification on the basis of whether, with implementation of the
proposed Federal action, the affected critical habitat would remain
functional (or retain the current ability for the PCEs to be
functionally established) to serve its intended conservation role for
the species.
The regulatory effect is significantly limited in this case. First,
it only applies where there is a Federal nexus--if there is no Federal
nexus, designation itself does not restrict actions that destroy or
adversely modify critical habitat.
[[Page 54383]]
Second, it only limits destruction or adverse modification of critical
habitat. By its nature, the prohibition on adverse modification is
designed to ensure those areas that contain the physical and biological
features essential to the conservation of the species or unoccupied
areas that are essential to the conservation of the species are not
eroded. Critical habitat designation alone, however, does not require
specific steps toward recovery.
In regard to the question of a Federal nexus, we are not aware of
any proposed projects (with or without a Federal nexus) that would
negatively impact Trichostema austromontanum ssp. compactum and its
habitat, nor are any projects expected (see Response to Comment 4
above). The San Jacinto Mountains have been botanically explored for
more than 100 years and only one population of this taxon has been
found. Because of its association with vernal pool margins, other areas
of suitable habitat likely do not exist in this mountain range. The
Mount San Jacinto State Park Wilderness is protected from uses that
would degrade or destroy natural resources. The specific area where
this plant is found is designated by the State of California as a
Natural Preserve, which means that protection and management of
sensitive resources is the highest priority for this area. It is
unlikely that a future project with a Federal nexus will occur within
the habitat for this taxon because the habitat is within a Natural
Preserve in a State Park, and no changes in land-use are planned for
the foreseeable future. In fact, the Service has not engaged in any
section 7 consultations for T. a. ssp. compactum since its listing in
1998.
However, if a federally funded or authorized project with potential
to impact this taxon or its habitat did occur, a section 7 consultation
would be required. We anticipate that any Federal project that involves
grading, digging, or construction that would impact the watershed of
the vernal pool where this plant occurs would trigger a section 7
consultation because it would either directly or indirectly impact this
taxon. Under section 7(a)(2) of the Act, project impacts would be
analyzed and a determination would be made as to whether or not the
project would jeopardize the continued existence of the taxon. The
designation of critical habitat would ensure that a Federal project
would not result in the destruction or adverse modification of the
designated critical habitat. However, in the absence of critical
habitat, areas that support Trichostema austromontanum ssp. compactum
will continue to be subject to conservation actions implemented under
section 7(a)(1) of the Act and to the regulatory protections afforded
by the section 7(a)(2) jeopardy standard, as appropriate. Federally
funded or permitted projects affecting listed species outside
designated critical habitat areas may still result in jeopardy
findings. In this case, we believe that impacts to the taxon and its
habitat associated with any Federal project would be adequately
assessed and modified, if necessary, to address the conservation needs
of this plant through application of the jeopardy standard under
section 7(a)(2) of the Act, particularly since this taxon occurs at a
single location.
Another potential benefit to Trichostema austromontanum ssp.
compactum from designating critical habitat is that such a designation
serves to educate landowners, State and local governments, and the
public regarding the potential conservation value of an area.
Generally, providing this information helps focus and promote
conservation efforts by other parties by clearly delineating areas of
high conservation value for the affected species. In this circumstance,
the landowner (CDPR) is well aware of the areas important to T. a. ssp.
compactum, and is actively implementing measures to conserve this
taxon. Furthermore, designation of critical habitat for T. a. ssp.
compactum will likely undermine the conservation efforts by CDPR and
cause harm to T. a. ssp. compactum. The designation of critical habitat
often generates increased interest in a species and inspires people to
study the species and visit the habitat. As discussed above, T. a. ssp.
compactum is small and blends in with other short herbaceous plants.
Thus, someone attempting to learn more about this plant and its habitat
by visiting the site without proper training is likely to harm members
of the population in the process. Therefore, we do not find that there
is any benefit to the taxon derived from educating landowners, State
and local governments, and the public regarding the potential
conservation value of areas that would be designated as critical
habitat.
Increased Threat to the Species Outweighs the Benefits of Critical
Habitat Designation
Upon reviewing the available information, we have determined that
the designation of critical habitat can be expected to increase the
degree of threat from human activity to Trichostema austromontanum ssp.
compactum, and that this expected increase in the degree of threat
outweighs the benefits of designating critical habitat for this taxon.
As discussed above, the designation of critical habitat may result in
negative effects to the habitat because the dissemination of location
information could be expected to result in increased trampling of the
plant and its habitat. The unique area where the plant occurs was
adversely impacted by a higher level of recreational use in the past.
We believe that publication of specific locations and maps associated
with a critical habitat designation for this taxon, with the attendant
publicity that a designation would likely generate, can be expected to
increase interest in the area where the taxon is found because of the
interest that the public and scientific community have in rare,
threatened, and endangered species, and in unique ecosystems. The
sensitive nature of this taxon makes it vulnerable to even a slight
increase in the amount of trampling. In a drought year, this species
may have less than 100 flowering individuals and a limited amount of
activity could damage the majority of the population. The CDPR has
implemented measures to decrease visitation and thereby decrease
impacts to the area occupied by T. a. ssp. compactum, and these
measures have proven successful in reducing impacts. Designation of
critical habitat will undermine the conservation actions that CDPR has
already put into place for this taxon. The sensitive nature of this
taxon makes it vulnerable to even a slight increase in the amount of
trampling. In a drought year, this species may have less than 100
flowering individuals and a limited amount of activity could damage the
majority of the population. These ongoing conservation actions appear
to have minimized the primary threat to this taxon and we believe that
designation of critical habitat would reverse these efforts and
increase the threat of trampling to this plant.
Furthermore, we have determined that there is no overall benefit of
critical habitat designation to T. a. ssp. compactum because: (1) The
regulatory benefit of a critical habitat designation for this taxon is
unlikely to be realized because we do not foresee any future projects
(either federal or non-federal) that will negatively impact this taxon;
(2) the general educational benefits afforded by critical habitat
designation are minimal for this particular taxon; and (3) designation
of critical habitat would undermine ongoing conservation efforts and
hinder our partnership with CDPR. Therefore, based on our determination
that critical habitat designation would increase the degree of threats
to T. a. ssp. compactum and,
[[Page 54384]]
at best, provide nominal benefits for this taxon, we find that the
increased threat to T. a. ssp. compactum from the designation of
critical habitat far outweighs any benefit of designation.
Prudency Determination
Pursuant to the Court's April 14, 2005, stipulated settlement
agreement and order, and as announced in our proposed not-prudent
determination (71 FR 56094), we have withdrawn our previous not-prudent
determination. On the basis of our review of the best scientific and
commercial information available, we again find that designation of
critical habitat is not prudent for Trichostema austromontanum ssp.
compactum. We came to this determination after weighing the potential
increased threats associated with identifying specific areas as
critical habitat against the benefits gained by a critical habitat
designation. We have determined that the designation of critical
habitat can be expected to increase the degree of threat to this taxon
from human activity and would undermine the conservation actions that
CDPR has already put into place for this taxon. These ongoing
conservation actions appear to have minimized the primary threat to T.
a. ssp. compactum, and as discussed above, we believe that designation
of critical habitat may reverse these efforts and increase the threat
of trampling to this taxon. Furthermore, we have determined that there
are minimal benefits of critical habitat designation for T. a. ssp.
compactum. We have concluded that, even if some benefit from
designation may exist, the increased threat to the plant from human
activity far outweighs any potential benefit to the taxon. We have,
therefore, determined that it is not prudent to designate critical
habitat for T. a. ssp. compactum at this time.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This determination does not contain any new collections of
information that require approval by OMB under the Paperwork Reduction
Act. This determination will not impose recordkeeping or reporting
requirements on State or local governments, individuals, businesses, or
organizations. An agency may not conduct or sponsor, and a person is
not required to respond to, a collection of information unless it
displays a currently valid OMB control number.
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.)
It is our position that, outside the Tenth Federal Circuit, we do
not need to prepare environmental analyses as defined by the NEPA in
connection with designating critical habitat under the Endangered
Species Act of 1973, as amended. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This assertion was upheld in the courts of the
Ninth Circuit Court of Appeals (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996).]
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. Because we have determined
that designation of critical habitat for Trichostema austromontanum
ssp. compactum is not prudent, and because T. a. ssp. compactum and its
habitat do not occur on Tribal lands, no Tribal lands will be affected
by this determination.
References Cited
A complete list of all references cited in this finding is
available upon request from the Field Supervisor, Carlsbad Fish and
Wildlife Office (see ADDRESSES section).
Author
The primary author of this document is staff of the Carlsbad Fish
and Wildlife Office (see ADDRESSES section).
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: September 14, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E7-18678 Filed 9-24-07; 8:45 am]
BILLING CODE 4310-55-P