[Federal Register Volume 69, Number 66 (Tuesday, April 6, 2004)]
[Proposed Rules]
[Pages 18018-18035]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7695]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AI78
Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for Astragalus jaegerianus (Lane
Mountain milk-vetch)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to designate
critical habitat pursuant to the Endangered Species Act of 1973, as
amended (Act), for Astragalus jaegerianus (Lane Mountain milk-vetch).
Approximately 29,522 acres (ac) (11,947 (ha)) of land fall within the
boundaries of the proposed critical habitat designation. Proposed
critical habitat is located in the Mojave Desert in San Bernardino
County, California.
Critical habitat identifies specific areas that are essential to
the conservation of a listed species, and that may require special
management considerations or protection. If this proposal is made
final, section 7(a)(2) of the Act requires that Federal agencies ensure
that actions they fund, authorize, or carry out are not likely to
result in the destruction or adverse modification of critical habitat.
The regulatory effect of the critical habitat designation does not
extend beyond those activities funded, permitted, or carried out by
Federal agencies. State or private actions, with no Federal
involvement, are not affected.
Section 4 of the Act requires us to consider economic, national
security, and other relevant impacts when specifying any particular
area as critical habitat. We will conduct an analysis of the economic
impacts of designating these areas, in a manner that is consistent with
the ruling of the 10th Circuit Court of Appeals in N.M. Cattle Growers
Assn v. USFWS. We hereby solicit data and comments from the public on
all aspects of this proposal, including data on economic and other
impacts of the designation. We may revise this proposal prior to final
designation to incorporate or address new information received during
the comment period.
DATES: We will accept comments until June 7, 2004. Public hearing
requests must be received by May 21, 2004.
ADDRESSES: If you wish to comment, you may submit your comments and
materials concerning this proposal by any one of several methods:
1. You may submit written comments and information to the Field
Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife
Service, 2493 Portola Road, Suite B, Ventura, CA, 93003.
2. You may also send comments by electronic mail (e-mail) to
[email protected]. In the event that our internet connection is not
functional, please submit your comments by the alternate methods
mentioned above.
3. You may hand-deliver comments to our Ventura Fish and Wildlife
Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B,
Ventura, CA 93003.
All comments and materials received, as well as supporting
documentation used in preparation of this proposed rule, will be
available for public inspection, by appointment, during normal business
hours at the above address.
FOR FURTHER INFORMATION CONTACT: Connie Rutherford, Ventura Fish and
Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road,
Suite B, Ventura, CA 93003 (telephone (805) 644-1766; facsimile (805)
644-3958).
SUPPLEMENTARY INFORMATION:
[[Page 18019]]
Designation of Critical Habitat Provides Little Additional Protection
to Species
In 30 years of implementing the Endangered Species Act, the Service
has found that the designation of statutory critical habitat provides
little additional protection to most listed species, while consuming
significant amounts of available conservation resources. The Service's
present system for designating critical habitat has evolved since its
original statutory prescription into a process that provides little
real conservation benefit, is driven by litigation and the courts
rather than biology, limits our ability to fully evaluate the science
involved, consumes enormous agency resources, and imposes huge social
and economic costs. The Service believes that additional agency
discretion would allow our focus to return to those actions that
provide the greatest benefit to the species most in need of protection.
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
While attention to and protection of habitat is paramount to
successful conservation actions, we have consistently found that, in
most circumstances, the designation of critical habitat is of little
additional value for most listed species, yet it consumes large amounts
of conservation resources. Sidle (1987) stated, ``Because the ESA can
protect species with and without critical habitat designation, critical
habitat designation may be redundant to the other consultation
requirements of section 7.'' Currently, only 445 species or 36 percent
of the 1,244 listed species in the United States under the jurisdiction
of the Service have designated critical habitat. We address the habitat
needs of all 1,244 listed species through conservation mechanisms such
as listing, section 7 consultations, the section 4 recovery planning
process, the section 9 protective prohibitions of unauthorized take,
section 6 funding to the States, and the section 10 incidental take
permit process. The Service believes that it is these measures that may
make the difference between extinction and survival for many species.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically imperiled species, and final listing determinations on
existing proposals are all significantly delayed.
The accelerated schedules of court ordered designations have left
the Service with almost no ability to provide for adequate public
participation or to ensure a defect-free rulemaking process before
making decisions on listing and critical habitat proposals due to the
risks associated with noncompliance with judicially-imposed deadlines.
This in turn fosters a second round of litigation in which those who
fear adverse impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless, is very
expensive, and in the final analysis provides relatively little
additional protection to listed species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects and the cost of requesting and responding to
public comment, and in some cases the costs of compliance with NEPA,
all are part of the cost of critical habitat designation. None of these
costs result in any benefit to the species that is not already afforded
by the protections of the Act enumerated earlier, and they directly
reduce the funds available for direct and tangible conservation
actions.
Public Comments Solicited
We intend any final action resulting from this proposal to be as
accurate and as effective as possible. Therefore, comments or
suggestions from the public, other concerned governmental agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule are hereby solicited. Comments
particularly are sought concerning:
(1) The reasons why any habitat should or should not be determined
to be critical habitat as provided by section 4 of the Act, including
whether the benefit of designation will outweigh any threats to the
species due to designation, specifically, any lands being considered
under a conservation plan;
(2) With specific reference to the recent amendments to sections
4(b)(2) of the Act, we request information regarding impacts to
national security associated with proposed designation of critical
habitat;
(3) Specific information on the amount and distribution of
Astragalus jaegerianus habitat, and what habitat is essential to the
conservation of the species and why;
(4) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat;
(5) Any foreseeable economic or other potential impacts resulting
from the proposed designation--in particular, any impacts on small
entities; and
(6) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments.
If you wish to comment, you may submit your comments and materials
concerning this proposal by any one of several methods (see ADDRESSES
section). In the event that our internet connection is not functional,
please submit your comments by the alternate methods mentioned above.
Please submit Internet comments in ASCII file format and avoid the use
of special characters or any form of encryption. Please also include
``Attn: [RIN 1018-AI78]'' in your e-mail subject header and your name
and return address in the body of your message. If you do not receive a
confirmation from the system that we have received your Internet
message, contact us directly by calling our Ventura Fish and Wildlife
Office at phone number 805-644-1766. Please note that the Internet
address ``[email protected]'' will be closed out at the termination
of the public comment period.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home addresses from the rulemaking record, which we will honor to
the extent allowable by law. There also may be circumstances in which
we would withhold from the rulemaking record a respondent's identity,
as allowable by law. If you wish us to withhold your name and/or
[[Page 18020]]
address, you must state this prominently at the beginning of your
comment. However, we will not consider anonymous comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the above
address.
Background
We listed Astragalus jaegerianus (Lane Mountain milk-vetch) as
threatened on October 6, 1998 (63 FR 53596) due to threats of
increasing habitat loss and degradation. It is our intent, in this
proposed rule, to reiterate and discuss only those topics directly
relevant to the development and designation of critical habitat or
relevant information obtained since the final listing. Please refer to
our final listing rule for a more detailed discussion of the plant's
taxonomic history and physical description.
Astragalus jaegerianus (Lane Mountain milk-vetch) is a member of
the pea family (Fabaceae) that is restricted in its range to a portion
of the west Mojave Desert that is north of Barstow, in San Bernardino
County, California. The plant overwinters as a taproot. The stems often
grow in a zigzag pattern, usually up through low bushes, referred to in
this proposed rule as host shrubs.
This species can be considered a hemicryptophyte (partially
hidden), because it is usually often found growing within the canopy of
a host shrub. Like other species of Astragalus, the roots of A.
jaegerianus contain nodules that fix nitrogen. Gibson et al. (1998)
postulate that A. jaegerianus may have a mutually beneficial
relationship with the host shrub, wherein the host shrub provides
trellis-like support for A. jaegerianus, and benefits from higher
levels of soil nitrogen derived from the litter and roots of A.
jaegerianus.
Presumably, as with other perennial species in the Mojave Desert,
the plant begins regrowth in the late fall or winter, once sufficient
soil moisture is available. Individuals go dormant in the late spring
or summer when soil moisture has been depleted (Bagley 1999). Blooming
typically occurs in April and May. However, if climatic conditions are
unfavorable, the plants may dessicate prior to flowering or setting
seed. Therefore, substantial contributions to the seedbank may occur
primarily in climatically favorable years.
Production of pods and the number of seeds per pod can be highly
variable, both in the field and in greenhouse conditions. Seed pods can
contain as many as 18 seeds, but more typically 4 to 14 seeds (Sharifi
et al. 2003). In the field, seeds that do not germinate during the
subsequent year become part of the seed bank. Seed germination rates in
the field may resemble the low germination rate of 5 percent that is
observed in germination trials of unscarified (outer cover is broken)
seed (Sharifi in litt. 2004).
Seeds collected from Astragalus jaegerianus range in size from 1.5
to over 5.0 milligrams in weight (Sharifi in litt. 2003). The
relatively large size of these seed compared to many desert annual
species would make them an attractive food source to ants and other
large insects, small mammals, and birds (Brown et al. 1979). These
animal species would also be the most likely vectors to disperse A.
jaegerianus seeds within and between populations. Sharifi (pers. comm.
2004) confirmed the presence of A. jaegerianus seeds within native ant
coppices.
Limited observations on Astragalus jaegerianus pollinators were
carried out in 2003 (Kearns 2003). Observations were made on two plants
in one population for seven days. Although 30 different insect species
were observed visiting flowers in the area, only 4 visited A.
jaegerianus flowers. The most frequent pollinator was Anthidium
dammersi, a solitary bee in the megachilid family (Megachilidae).
Anthidium dammersi occurs in the Mojave and Colorado deserts of
California, Nevada, and Arizona (Kearns 2003), and will fly up to 0.6
mi (1 km) away from their nest; although if floral resources are
abundant, they will decrease their flight distances accordingly (Doug
Yanega, University of California Riverside, pers. comm. 2003). Kearns
(2003) found that the Anthidium individuals he inspected carried pollen
primarily from phacelia (Phacelia distans) (82 percent of individuals)
and Astragalus jaegerianus (64 percent). The three occasional visitors
to A. jaegerianus were a hover fly (Eupeodes volucris), a large
anthophrid bee (Anthophora sp.), and the white-lined sphinx moth (Hyles
lineata). The extent to which Astragalus jaegerianus relies on these
and other pollinators to achieve seed set is not yet known. However, in
a greenhouse experiment, 25 percent of pollinated A. jaegerianus
flowers set seed, while only 5 percent of nonpollinated flowers set
seed (Sharifi pers. comm. 2004).
Although the aboveground portion of the plant dies back each year,
individuals of Astragalus jaegerianus persist as a perennial rootstock
through the dry season. The perennial rootstock may also allow
Astragalus jaegerianus to survive occasional dry years, while longer
periods of drought might be endured by remaining dormant (Beatley in
Bagley 1999). In another federally listed species, Osterhout milk-vetch
(Astragalus osterhoutii), which occurs in sagebrush steppe habitat in
Colorado, individuals have remained dormant for up to 4 years (Dawson
in litt. 1999).
Although a substantial Astragalus jaegerianus seedbank most likely
exists, establishment of new individuals may not occur with great
frequency, and may pose a large bottleneck for the continued
persistence of the species. In addition to the low seed germination
rates discussed earlier, several other observations contribute to this
theory. First, we have some indication that individuals may have a long
life span; in one long-term plot, individuals have been tracked for a
period of 13 years. Out of a total of 9 individuals, 1 has persisted
over a period of 13 years, 1 has persisted 12 years, 1 has persisted 10
years, 1 has persisted 6 years, 1 has persisted 5 years, and 2 have
persisted 3 years (Rutherford in litt. 2004). Secondly, very few
seedlings have been observed. During the extensive surveys of 2001,
approximately 2 percent of the 4,964 individuals observed were thought
to be seedlings (Charis 2002). However, the actual number of seedlings
may have been even lower, because resprouts from established
individuals were most likely mistaken for seedlings (Sharifi pers.
comm. 2004). Because the population of Astragalus jaegerianus in any
given year is comprised primarily of established individuals,
maintaining the seed bank ensures that the populations are replenished
with new individuals.
After the early collections in 1939 and 1941, the plant was not
collected again until it was rediscovered in 1985 at the sites referred
to as Brinkman Wash, Montana Mine, and Paradise Wash. Throughout the
1990s, hundreds more plants were located in these areas (Lee and Ro
Consulting Engineers 1986, Brandt et al. 1993, Prigge 2000a) in surveys
sponsored by the Department of the Army's (Army) National Training
Center at Fort Irwin (NTC). Surveys in 1999 established that the
Brinkman Wash--Montana Mine site supports one large continuous
population (Prigge et al. 2000a). In 1992, the third and southernmost
population was found 9 mi (14 km) to the south, on Coolgardie Mesa, a
few miles west of Lane
[[Page 18021]]
Mountain; this site closely approximates the type locality.
Extensive surveys funded by the Army were conducted in 2001 (Charis
2002). The 2001 surveys contributed greatly to our knowledge of the
overall distribution and abundance of Astragalus jaegerianus in the
three populations. In addition, a fourth population was located during
these surveys on NTC lands in an area referred to as Goldstone.
Approximately 20 percent of this population is on lands leased by the
Army to the National Aeronautics and Space Administration (NASA) for
tracking facilities. Much of the most recent information included in
this proposed rule is taken from the Army survey report (Charis 2002).
Individuals of Astragalus jaegerianus are concentrated in four
geographically distinct areas. In this rule, a population refers to a
concentration of Astragalus individuals, a population site refers to
the land that supports the population, and a unit refers to specific
sites that are being considered for critical habitat designation. The
four populations of A. jaegerianus are arrayed more or less linearly
along a 20-mile-long axis that trends in a northeasterly-to-
southwesterly direction. The names of the four populations, from
northeast to southwest, and land ownership are as follows--the
Goldstone population occurs on NTC, lands including a portion leased to
NASA; the Brinkman Wash-Montana Mine population occurs entirely on NTC
lands; the Paradise Wash population occurs primarily on Army lands,
with a small portion of the remaining population occurring on Bureau
lands intermixed with private lands along the southwestern fringe of
the population; the Coolgardie population occurs primarily on Bureau-
managed lands, with a number of small privately owned parcels scattered
within.
Based on the information available, including historic records and
current location information, there is nothing to suggest that
Astragalus jaegerianus was ever more widespread than currently known.
The Army surveys in 2001 (Charis 2002) included reconnaissance surveys
on habitat that appeared suitable but outside the known range of A.
jaegerianus, including the Mount General area near Barstow and in the
Alvord Mountains 20 mi (32 km) to the east. In addition, since 1996,
rare plant surveys have been conducted on the Naval Air Weapons Station
at China Lake 6 miles (4.8 km) to the northwest of the known
distribution (Charis 2002; Silverman in litt. 2003). None of these
other surveys have resulted in the location of any other populations.
Astragalus jaegerianus is most frequently found on shallow soils
derived from Jurassic or Cretaceous granitic bedrock. A small portion
of the individuals located to date occur on soils derived from diorite
or gabbroid bedrock (Charis 2002). In one location on the west side of
the Coolgardie site, plants were found on granitic soils overlain by
scattered rhyolitic cobble, gravel, and sand. Soils tend to be
shallower immediately adjacent to milk-vetch plants than in the
surrounding landscape; at the Montana Mine site, rotten, highly
weathered granite bedrock was reached within 2 in (6 cm) of the soil
surface near A. jaegerianus plants (Fahnestock 1999). The topography
where A. jaegerianus most frequently occurs is on low ridges and rocky
low hills where bedrock is exposed at or near the surface and the soils
are coarse or sandy (Prigge 2000b; Charis 2002). Most of the
individuals found to date occur between 3,100 and 4,200 feet (ft) (945
to 1,280 meters (m)) in elevation (Charis 2002). At lower-lying
elevations, the alluvial soils appear to be too fine to support A.
jaegerianus, and at higher elevations the soils may not be developed
enough to support A. jaegerianus (Prigge 2000b; Charis 2002).
Prigge (pers. comm. 2003) examined and found no relationship
between the abundance and distribution of Astragalus jaegerianus and
levels of micronutrients or heavy metals, such as selenium, in the
soil. Another focus of pending research will be on measuring
transpiration rates and gas exchange rates for A. jaegerianus; these
rates would be an indicator as to whether the taproots of A.
jaegerianus are tapping into a water source stored within fractured
granite bedrock, thus allowing it to utilize water not available to
other plants within the community (Prigge et al. 2002).
At the landscape level, the plant community within which Astragalus
jaegerianus occurs can be described as Mojave mixed woody scrub
(Holland 1998), Mojave creosote bush scrub (Holland 1988; Cheatham and
Haller 1975; Thorne 1976), or creosote bush series (Sawyer and Keeler-
Wolf 1995). These broad descriptions, however, are lacking in detail
that is useful in describing the communities where A. jaegerianus is
found. While creosote bush (Larrea tridentata) is present in the
landscape, its presence and abundance is not as extensive in the
specific areas where A. jaegerianus occurs, presumably because these
soils are shallower than optimal depth for creosote bush.
Data gathered from the four sites that support Astragalus
jaegerianus populations have been more useful in describing the plant
community that A. jaegerianus grows in. Common to all four sites is the
remarkably high diversity of desert shrub species, while the relative
frequency of these species varies slightly from site to site. The shrub
species that occur in the highest densities at A. jaegerianus sites
include turpentine bush (Thamnosma montana), white bursage (Ambrosia
dumosa), Mormon tea (Ephedra nevadensis), Cooper goldenbush (Ericameria
cooperi var. cooperi), California buckwheat (Eriogonum fasciculatum
var. polifolium), brittlebush (Encelia farinosa or E. actoni), desert
aster (Xylorrhiza tortifolia), goldenheads (Acamptopappus
spherocephalus), spiny hop-sage (Grayia spinosa), cheesebush
(Hymenoclea salsola), winter fat (Kraschenninikovia lanata), and paper
bag bush (Salazaria mexicana).
Astragalus jaegerianus utilizes a variety of species as host
shrubs. Individuals of A. jaegerianus are rarely observed on bare
ground, and more frequently within dead shrubs, leading to speculation
that the milk-vetch may have outlived its host shrub. Host shrubs may
also be important in providing appropriate microhabitat conditions for
A. jaegerianus seed germination and seedling establishment (Charis
2003).
At the Brinkman-Montana Mine site, Prigge et al. (2000b) showed
that the difference between host shrub preference by Astragalus
jaegerianus and the frequency with which these shrubs occurred in the
plant community was statistically significant, indicating that some
shrubs are more suitable as hosts than others. During Army surveys in
2001, host shrubs were noted for 4,899 individuals of A. jaegerianus.
Six shrub species (Thamnosma montana, Ambrosia dumosa, Eriogonum
fasciculatum var. polifolium, Ericameria cooperi var. cooperi, Ephedra
nevadensis) and dead shrubs accounted for 75 percent of the host shrub
records.
The cumulative total number of Astragalus jaegerianus individuals
found from all surveys to date is approximately 5,800 (Charis 2002).
Charis (2002) attempted to extrapolate the total number of individuals
by factoring in the amount of intervening suitable habitat between
transects in confirmed occupied habitat, along with an
``observability'' factor ranging from 30 percent to 70 percent; this
results in estimations of the total number of individuals ranging from
20,524 to 47,890. The actual number of individuals observed during the
surveys
[[Page 18022]]
at the four population sites during the climatically favorable year of
2001 are as follows--Goldstone, 555; Brinkman Wash-Montana Mine, 1,487;
Paradise Wash, 1,667; Coolgardie, 2,014 (Charis 2002). Low numbers of
individuals observed in prior and subsequent years (2000, 2002, and
2003) suggest that this species may well follow the pattern of other
perennial desert species that rely on favorable climatic conditions
that do not occur with any predictable frequency (Beatley 1974, Kearns
2003; B. Prigge, pers. comm. 2003).
The longterm viability of Astragalus jaegerianus depends on
numerous variables, including life history characteristics (e.g.,
longevity), population characteristics (e.g., rates of recruitment and
mortality), and carrying capacity of the habitat. The need to maintain
high-quality habitat for A. jaegerianus is important to its long-term
persistence. Aside from the sandy granidiorite soils and the mixed
desert scrub community which have been described in the previous
sections, we believe that the other characteristics important to ensure
the maintenance of the ecologic processes within A. jaegerianus habitat
include habitat of sufficient size and quality to maintain pollinators;
and habitat of sufficient size and quality to maintain seed dispersal
mechanisms.
At the time Astragalus jaegerianus was listed as endangered in
1998, threats to the species included dry wash mining, recreational
off-highway vehicle use, military maneuvers on Army lands at NTC and
NTC expansion lands, and the lack of regulatory mechanisms that would
offer formal protection for the species or its habitat. Stochastic
extinction (extinction from random natural events) is also a concern,
and could result from such events as flooding (that could wash
substantial amounts of the seedbank into unsuitable habitat), prolonged
drought (that could reduce the abundance of viable seed in the seed
bank), or unforeseen events including wildfire, wildfire suppression
activities, or pipeline breaks or repairs.
Since the final rule was published, new information concerning the
status of Astragalus jaegerianus and the nature of its threats is
available. The 2001 surveys have provided better information on the
distribution of the species. The extent of the three populations that
were previously known has been greatly expanded, and the fourth
population (Goldstone) was discovered during these surveys. Also, the
size of the populations as represented by the number of individuals
that can be observed in a favorable climatic year is now known to be
larger than was thought at the time of listing. In addition, a
substantial change occurred in land management--on January 11, 2002,
President George W. Bush signed the Fort Irwin Military Lands
Withdrawal Act of 2001 (Pub. L. 107-107) into law. This legislation
withdrew approximately 110,000 ac (44,516 ha) of land, formerly managed
by the Bureau, for military use. Subsequent surveys and geographic
information system (GIS) analysis indicated that the proposed expansion
area covers 118,674 ac (48,026 ha). Military use of the withdrawn lands
will not begin until compliance with the National Environmental Policy
Act (NEPA) and a consultation pursuant to section 7(a)(2) of the Act
with the Service have been completed.
Two of the four populations of Astragalus jaegerianus (Brinkman
Wash--Montana Mine, Paradise Wash populations) occur almost entirely on
withdrawn lands within the NTC expansion. The Army is proposing to
establish two conservation areas for A. jaegerianus. The first
conservation area will comprise 2,470 ac (1,000 ha) at the Goldstone
site. The second conservation area, referred to as Paradise Valley
Conservation Area, will comprise 4,302 ac (1,741 ha) along the
southwestern boundary of NTC. Therefore, all of one and a portion of a
second population of the three populations on NTC lands are in areas
that will be placed in conservation areas.
Finally, since the early 1990s, the Bureau has acted as the lead
agency in developing the West Mojave Plan (WMP); the planning area for
this multiagency effort covers 9,360,000 ac (3,787,900 ha) of the
western Mojave Desert. These lands include approximately 3,300,000 ac
(1,335,477 ha) of lands administered by the Bureau, 3,000,000 ac
(1,214,070 ha) of private lands, and 102,000 ac (41,278 ha) of State
lands. The remaining lands lie within areas administered by the
Department of Defense and National Park Service; these agencies are not
formally part of the WMP. The draft environmental impact report/
statement (EIR/S) for the WMP was published in May 2003. As part of the
Bureau's preferred alternative, they propose to establish two
conservation areas for Astragalus jaegerianus. The first conservation
area, referred to as the West Paradise Conservation Area, will comprise
1,243 ac (503 ha), and will be contiguous with the Army's Paradise
Valley Conservation Area along the southwestern boundary of NTC. This
area is currently designated as land-use class L by the Bureau, which
denotes limited use. The second is the Coolgardie Mesa Conservation
Area (CMCA); it will comprise approximately 13,354 ac (5,404 ha) at the
Coolgardie site. This area is currently designated as land-use class M
by the Bureau, which denotes moderate use. Both conservation areas
would be managed to maintain habitat for A. jaegerianus with the
following proposed management prescriptions: Implement a minerals
withdrawal, require a 5 to 1 mitigation ratio for land-disturbing
projects, and limit total ground disturbance to 1 percent. Once the WMP
is finalized, the County of San Bernardino will be the lead entity in
preparing a draft Habitat Conservation Plan (HCP) that will address
conservation measures that will be proposed for private lands within
the area covered by the WMP.
The Bureau has also recently completed a consultation with the
Service for a route designation project in the western Mojave Desert
area. The project includes a proposal to reduce the number of roads
within the proposed CMCA that are designated as open to travel; other
roads will be proposed for closure and restoration (Service 2003a).
The impacts from military activities within the boundaries of NTC
on Astragalus jaegerianus and its habitat will vary, depending on the
type of terrain and the level and frequency of use. The Army (Charis
2003) anticipates the following types of impacts--individuals of A.
jaegerianus could be killed or damaged through direct contact with
wheeled and tracked vehicles, construction, digging and earth-moving
activities, temporary bivouacs, helicopter landings, the movement of
soldiers on foot, and other activities in the project area. Habitat for
A. jaegerianus could be affected by substantially reducing or
eliminating host plants within the project area, soil erosion and
compaction, and the loss of cryptobiotic soil crusts that help
stabilize the soil surface and assist with water transport to plant
roots. Army (Charis 2003) anticipates that in ``high-intensity'' use
areas, up to 100 percent of individuals and habitat could be lost; in
``moderate-intensity'' use areas, up to 60 percent of individuals could
be lost; in ``low-intensity'' use areas, up to 20 percent of
individuals and habitat could be lost; and in proposed conservation
areas, the only loss of individuals or habitat expected to occur is
from straying military vehicles or personnel. Windblown dust that has
been loosened from the soil surface due to military activities may also
affect A. jaegerianus by inhibiting photosynthesis and transpiration in
individuals, altering suitable germination sites, and altering
[[Page 18023]]
the effectiveness of pollinator visits and of seed dispersal by
wildlife species.
Other nonmilitary activities may also occur within NTC. Recently, a
fiber-optic cable was installed through the Goldstone population.
Although the installation consisted of trenching through Astragalus
jaegerianus habitat, no individuals were affected (Service 2003b).
Other activities not related to military training, such as road
construction or maintenance activities, may be also be proposed in the
future by the Army.
Previous Federal Action
The final rule listing A. jaegerianus as an endangered species was
published on October 6, 1998 (63 FR 53596).
On November 15, 2001, our decision not to designate critical
habitat for Astragalus jaegerianus and seven other plant and wildlife
species was challenged in Southwest Center for Biological Diversity and
California Native Plant Society v. Norton (Case No. 01-CV-2101-IEG
(S.D.Cal.). On July 1, 2002, the court ordered the Service to
reconsider its not prudent determination, and propose critical habitat,
if prudent, for the species by September 15, 2003, and a final critical
habitat designation, if prudent, no later than September 15, 2004.
However, the Service exhausted the funding appropriated by Congress to
work on critical habitat designations in 2003 prior to completing the
proposed rule. On September 8, 2003, the court issued an order
extending the publication date of the proposed critical habitat
designation for A. jaegerianus to April 1, 2004, and the final
designation to April 1, 2005. In light of Natural Resources Defense
Council v. U.S. Department of the Interior, 113 F.3d 1121 (9th Cir.
1997), and the diminished threat of overcollection, the Service has
reconsidered its decision and has determined that it is prudent to
designate critical habitat for the species.
Critical Habitat
Section 3(5)(A) of the Act defines critical habitat as--(i) the
specific areas within the geographic 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 (I) essential to the conservation of
the species and (II) that may require special management considerations
or protection; and (ii) specific areas outside the geographic area
occupied by a species at the time it is listed, upon a determination
that such areas are essential for the conservation of the species.
``Conservation'' means the use of all methods and procedures that are
necessary to bring an endangered or a threatened species to the point
at which listing under the Act is no longer necessary.
The designation of critical habitat does not affect land ownership
or establish a refuge, wilderness, reserve, preserve, or other
conservation area. It does not allow government or public access to
private lands. Under section 7 of the Act, Federal agencies must
consult with us on activities they undertake, fund, or permit that may
affect critical habitat and lead to its destruction or adverse
modification. However, the Act prohibits unauthorized take of listed
species and requires consultation for activities that may affect them,
including habitat alterations, regardless of whether critical habitat
has been designated. We have found that the designation of critical
habitat provides little additional protection to most listed species.
To be included in a critical habitat designation, habitat must be
either a specific area within the geographic area occupied by the
species on which are found those physical or biological features
essential to the conservation of the species (primary constituent
elements, as defined at 50 CFR 424.12(b)) and which may require special
management considerations or protections, or be specific areas outside
of the geographic area occupied by the species which are determined to
be essential to the conservation of the species. Section 3(5)(C) of the
Act states that not all areas that can be occupied by a species should
be designated as critical habitat unless the Secretary determines that
all such areas are essential to the conservation of the species. Our
regulations (50 CFR 424.12(e)) also state that, ``The Secretary shall
designate as critical habitat areas outside the geographic area
presently occupied by the species only when a designation limited to
its present range would be inadequate to ensure the conservation of the
species.''
Regulations at 50 CFR 424.02(j) define special management
considerations or protection to mean any methods or procedures useful
in protecting the physical and biological features of the environment
for the conservation of listed species. When we designate critical
habitat, we may not have the information necessary to identify all
areas that are essential for the conservation of the species.
Nevertheless, we are required to designate those areas we consider to
be essential, using the best information available to us. Accordingly,
we do not designate critical habitat in areas outside the geographic
area occupied by the species unless the best available scientific and
commercial data demonstrate that those areas are essential for the
conservation needs of the species.
Section 4(b)(2) of the Act requires that we take into consideration
the economic impact, the impact on national security, and any other
relevant impact of specifying any particular area as critical habitat.
We may exclude areas from critical habitat designation when the
benefits of exclusion outweigh the benefits of including the areas
within critical habitat, provided the exclusion will not result in
extinction of the species.
Our Policy on Information Standards Under the Endangered Species
Act, published in the Federal Register on July 1, 1994 (59 FR 34271),
provides criteria, establishes procedures, and provides guidance to
ensure that our decisions represent the best scientific and commercial
data available. It requires our biologists, to the extent consistent
with the Act and with the use of the best scientific and commercial
data available, to use primary and original sources of information as
the basis for recommendations to designate critical habitat. When
determining which areas are critical habitat, a primary source of
information should be the listing package for the species. Additional
information may be obtained from a recovery plan, articles in peer-
reviewed journals, conservation plans developed by States and counties
or other entities that develop HCPs, scientific status surveys and
studies, biological assessments, or other unpublished materials and
expert opinion or personal knowledge.
Section 4 of the Act requires that we designate critical habitat on
the basis of what we know at the time of designation. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery.
Areas that support populations, but are outside the critical
habitat designation, 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 determined on the basis of the best available information
at the time of the action. Federally funded or permitted
[[Page 18024]]
projects affecting listed species outside their designated critical
habitat areas may still result in jeopardy findings in some cases.
Similarly, critical habitat designations made on the basis of the best
available information at the time of designation will not control the
direction and substance of future recovery plans, habitat conservation
plans, or other species conservation planning efforts if new
information available to these planning efforts calls for a different
outcome.
Relationships to Sections 3(5)(A) and 4(b)(2) of the Act
Section 3(5)(A) of the Act defines critical habitat as the specific
areas within the geographic area occupied by the species on which are
found those physical and biological features (I) essential to the
conservation of the species and (II) which may require special
management considerations or protection. As such, for an area to be
designated as critical habitat for a species it must meet both
provisions of the definition. In those cases where an area does not
provide those physical and biological features essential to the
conservation of the species, it has been our policy not to include them
in designated critical habitat. Likewise, if we believe that an area
determined to be biologically essential has an adequate conservation
management plan that covers the species and provides for adaptive
management sufficient to conserve the species, then special management
and protection are not needed. Therefore, these areas do not meet the
second provision of the definition and are also not proposed as
critical habitat. Examples of conservation management plans that we
consider when designating critical habitat include Habitat Conservation
Plans (HCPs) for nonmilitary areas.
Further, section 4(b)(2) of the Act states that critical habitat
shall be designated, and revised on the basis of the best scientific
data available after taking into consideration the economic impact, the
impact on national security, and any other relevant impact of
specifying any particular area as critical habitat. An area may be
excluded from critical habitat if it is determined, following an
analysis, that the benefits of such exclusion outweigh the benefits of
specifying a particular area as critical habitat, unless the failure to
designate such area as critical habitat will result in the extinction
of the species. Consequently, we may exclude an area from designated
critical habitat based on economic impacts, or other relevant impacts
such as preservation of conservation partnerships and national
security.
In our critical habitat designations we have used both the
provisions outlined in sections 3(5)(A) and 4(b)(2) of the Act to
evaluate those specific areas proposed for designation as critical
habitat and those areas which are subsequently finalized (i.e.,
designated). We have applied the provisions of these sections of the
Act to lands essential to the conservation of the subject species to
evaluate and either exclude from final critical habitat or not include
in proposed critical habitat. Lands in which we have either excluded
from or not included in critical habitat based on those provisions
include those covered by: (1) Legally operative HCPs that cover the
species, and provide assurances that the conservation measures for the
species will be implemented and effective; (2) draft HCPs that cover
the species, have undergone public review and comment, and provide
assurances that the conservation measures for the species will be
implemented and effective (i.e., pending HCPs); (3) Tribal conservation
plans that cover the species and provide assurances that the
conservation measures for the species will be implemented and
effective; (4) State conservation plans that provide assurances that
the conservation measures for the species will be implemented and
effective; and (5) Fish and Wildlife Service Comprehensive Conservation
Plans that provide assurances that the conservation measures for the
species will be implemented and effective.
As discussed above, the Bureau is leading the development of the
WMP; the WMP includes the federal action of amending the Bureau's
California Desert Conservation Area Plan and the development of a
habitat conservation plan for non-federal lands within the planning
area. Conservation of A. jaegerianus is a key factor that is being
considered in the development of the WMP. We have been providing
technical assistance to the Bureau to ensure that the WMP provides for
protection and management of habitat essential for the conservation of
this species. In addition, the Bureau's proposed amendments to the
California Desert Conservation Area Plan will be subject to
consultation under section 7 of the Act. As part of the WMP, the Bureau
is proposing to establish the Coolgardie Mesa and West Paradise
Conservation Areas, to implement management actions that will
contribute toward the conservation of the species, and to modify
current activities within these areas so that such activities will not
impair the conservation of the species. The County of San Bernardino is
the lead agency for preparing the specific portion of the habitat
conservation plan that would be in effect for this portion of the
planning area. The habitat conservation plan may not contain specific
measures to conserve A. jaegerianus on private lands; however, both
components of the WMP target these lands for acquisition and subsequent
management for the conservation of the species. We will conduct an
economic analysis that includes potential economic effects of the
actions proposed in the WMP, and we will consider the results of the
economic analysis and the adequacy of the WMP in the conservation of A.
jaegerianus in our final critical habitat determination.
The Sikes Act Improvement Act of 1997 (Sikes Act) requires each
military installation that includes land and water suitable for the
conservation and management of natural resources to complete, by
November 17, 2001, an Integrated Natural Resources Management Plan
(INRMP). An INRMP integrates implementation of the military mission of
the installation with stewardship of the natural resources found there.
Each INRMP includes an assessment of the ecological needs on the
installation, including the need to provide for the conservation of
listed species; a statement of goals and priorities; a detailed
description of management actions to be implemented to provide for
these ecological needs; and a monitoring and adaptive management plan.
We consult with the military on the development and implementation of
INRMPs for installations with listed species.
Section 318 of the fiscal year 2004 National Defense Authorization
Act (Pub. L. 108-136) amended the Act to address the relationship of
INRMPs to critical habitat. We are proposing to designate Army lands on
NTC as critical habitat for Astragalus jaegerianus. Although NTC has an
INRMP in place, it does not address A. jaegerianus and it does not
include the withdrawn lands where much of the critical habitat for A.
jaegerianus is located. The Army is amending its existing INRMP to
address the conservation of A. jaegerianus throughout its lands,
including the expansion area. However, we cannot exclude Army lands
from this proposed critical habitat designation under this amendment to
the Act because the amended INRMP has not been completed and we have
not had the opportunity to determine if the INRMP provides a benefit to
A. jaegerianus. We will consider the INRMP if it is completed prior to
our final designation
[[Page 18025]]
of critical habitat, or at a later date, if the Service has sufficient
funding to undertake a proposed withdrawal of critical habitat.
Military lands may also be excluded from critical habitat
designation based on section 4(b)(2) of the Act. As discussed above, an
area may be excluded from critical habitat if it is determined,
following an analysis of relevant impacts including the impact to
national security, that the benefits of such exclusion outweigh the
benefits of specifying a particular area as critical habitat, unless
the failure to designate such area as critical habitat will result in
the extinction of the species. Currently, the Army had proposed a
combination of conservation measures and military training over A.
jaegerianus sites. When we conduct the 4(b)(2) analysis prior to
finalizing this designation, we will fully consider the final plans for
the expansion areas, the economic analysis, and any comments received
from the Army on this proposal.
Methods
As required by the Act and regulations (section 4(b)(2) and 50 CFR
424.12) we used the best scientific information available to determine
areas that contain the physical and biological features that are
essential for the survival and recovery of Astragalus jaegerianus. This
information included data from our files that we used for listing the
species; geologic maps (California Geologic Survey 1953), recent
biological surveys and reports, particularly from the Army surveys of
2001 (Charis 2002); additional information provided by the Army, the
Bureau of Land Management, and other interested parties; and
discussions with botanical experts. We also conducted multiple site
visits to all three units that are being proposed for designation.
The longterm probability of the survival and recovery of Astragalus
jaegerianus is dependent upon the protection of existing population
sites, and the maintenance of ecologic functions within these sites,
including connectivity within and between populations within close
geographic proximity to facilitate pollinator activity and seed
dispersal mechanisms, and the ability to maintain these areas free of
major ground-disturbing activities. The areas we are proposing to
designate as critical habitat provide some or all of the habitat
components essential for the conservation of A. jaegerianus.
In our delineation of the critical habitat units, we selected areas
to provide for the conservation of Astragalus jaegerianus at the four
sites where it is known to occur. All four sites are essential because,
as cited earlier, Astragalus jaegerianus exhibits life history
attributes, including variable seed production, low germination rates,
and habitat specificity in the form of a dependence on a co-occurring
organism (host shrubs), that make it particularly vulnerable to
extinction (Keith 1998, Gilpin and Soule 1986). We believe the proposed
designation is of sufficient size to maintain landscape scale processes
and to minimize the secondary impacts resulting from human occupancy
and human activities occurring in adjacent areas. We mapped the units
with a degree of precision commensurate with the available information,
the size of the unit, and the time allotted to complete this proposal.
We anticipate that the boundaries of the three mapping units may be
refined based on additional information received during the public
comment period.
Of principle importance in the process of delineating the proposed
critical habitat units are data in a geographic information system
(GIS) format provided by the Army depicting the results of field
surveys for Astragalus jaegerianus conducted in 2001 by the Army
(Charis 2002). These data consisted of three files depicting the
locations of transects that were surveyed for A. jaegerianus, the
locations of A. jaegerianus individuals found during the surveys, and
minimum convex polygons (MCP) calculated to represent the outer bounds
of A. jaegerianus populations (Charis 2002).
For mapping proposed critical habitat units, we proceeded through a
multi-step process. First, we started with the MCPs that had been
calculated by the Army (Charis 2002). We then expanded these boundaries
outward from the edge of each of the 4 populations by a distance of
0.25 mi (0.4 km). We did this to include Astragalus jaergerianus
individuals that are part of these essential populations, but were not
noted during surveys. The basis for determining that these additional
land areas are occupied are as follows: (1) This habitat has the
appropriate elevational range, and includes the Primary Constituent
Elements (PCEs) (See Primary Constituent Elements section below), i.e.
granitic soils, and plant communities that support host plants that A.
jagerianus requires; (2) Botanists involved in the Army surveys stated
that ``the estimate of [A. jagerianus] distribution is a minimum''
(SAIC 2003); and that additional individuals of A. jaegerianus most
likely occurred on the fringes of the MCPs. (Wertenberger in litt.
2003); (3) mapping errors during the 2001 surveys indicated that the
location of individuals did not match up precisely with the location of
the transect boundaries (Charis 2002); (4) limited surveys were
conducted in 2003, and despite the unfavorable climatic conditions for
A. jaegerianus, 13 additional individuals were located outside the MCPs
(SAIC 2003). Three of the four areas where new plants were found were
within the 0.25 mi (0.4 km) boundary; and (5) this 0.25 mi (0.4 km)
distance is commensurate in scale with the distance between transects
where individuals were found and the distance between individuals along
one transect, and it is well within the distance that can be traversed
by pollinators and seed dispersers.
We next removed areas on the margins of the critical habitat units
where we determined, by referring to digital raster graphic maps, the
topography is either too steep or the elevation too high to support
additional Astragalus jaegerianus individuals. This boundary
modification involved editing the eastern and southeastern edge of the
Coolgardie Unit and a cirque-shaped sliver from the central portion of
the southern boundary of the Goldstone-Brinkman Unit.
For the Goldstone and Brinkman-Montana populations, expansion of
the MCP boundaries by 0.25 mi (0.4 km) left a narrow corridor (about
0.125 mi (0.2 km)) between the revised population boundaries. We chose
to bridge the gap between the two populations by incorporating the
intervening habitat that is within the geographic area occupied by the
species between the Goldstone and Brinkman-Montana populations and
occupied as seed banks into a single critical habitat unit. We did this
for several reasons: the intervening habitat between the two MCPs
contains the PCEs with the appropriate elevational range, granitic
soils, and plant communities (based on topographic maps, geologic maps,
and aerial photos) that Astragalus jaegerianus requires, there were no
obvious geographic barriers between the two MCPs; the distance between
the two closest A. jaegerianus individuals across the gap of the two
MCPs was smaller than the distance between individuals within the MCPs;
and the distance between the two MCPs was small enough that it could be
easily traversed by a pollinator with a potential flight distance of
0.6 mi (1 km), or a seed disperser such as certain small mammals and
birds. These granitic soils and plant community also provide habitat
for the pollinators that visit A. jaegerianus flowers that results in
the production of seed, habitat for seed
[[Page 18026]]
dispersers (birds, small mammals, and large insects) that carry seed
between the coppices of suitable host shrubs, and as long-term storage
for the soil seedbank of A. jaegerianus.
For the Paradise population, we removed a small portion of habitat
(47 ac (19 ha)) from the eastern edge of the MCP (5,497 ac (2,225 ha)),
thereby eliminating a small cluster of three individuals and the
surrounding suitable habitat from the proposed critical habitat unit.
We did this for two reasons: the distance between this small cluster of
three individuals and the other 1,487 individuals mapped within the MCP
was greater than the distance between other clusters of individuals
within the MCP, and this cluster of individuals was not adjacent to, or
providing connectivity to, any other known population of A.
jaegerianus.
Finally, the boundaries of the critical habitat units were modified
slightly in the process of creating the legal descriptions of the
critical habitat units. This process consisted of overlaying the
critical habitat units with grid lines spaced at 100-m intervals; the
grid lines following the Universal Transverse Mercator (UTM) coordinate
system ties to the North American Datum of 1927. Vertices defining the
critical habitat boundary polygon were then moved to the closest vertex
on the 100-m UTM grid lying inside of the critical habitat boundary.
Vertices not necessary to define the shape of the boundary polygon were
deleted. Changing the boundaries in this fashion serves two purposes:
(1) It creates a list of coordinates that is easier for the public to
use when looking at USGS 7.5 minute topographic maps and, (2) it
minimizes the number of coordinates necessary to define the shapes of
the critical habitat units.
In selecting areas of proposed critical habitat, we typically make
an effort to avoid developed areas, such as roads and buildings at
NASA's Goldstone facilities, and that are unlikely to contribute to the
conservation of Astragalus jaegerianus. However, we did not map
critical habitat in sufficient detail to exclude patches of habitat
within the larger areas being mapped that are unlikely to contain the
primary constituent elements essential for the conservation of A.
jaegerianus. Land within the boundaries of the mapped units upon which
are located facilities, such as buildings, roads, parking lots,
communication tower pads, and other paved areas, does not and will not
contain any of the primary constituent elements. In addition, old
mining sites where the soil profile and topography have been so altered
that no native vegetation can grow also do not and will not contain any
of the primary constituent elements. Federal actions limited to these
areas, therefore, would not trigger a section 7 consultation, unless
they affect the species and/or primary constituent elements in adjacent
critical habitat.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to propose as critical
habitat, we consider those physical and biological features (primary
constituent elements) that are essential to the conservation of the
species and that may require special management considerations or
protection. These include, but are not limited to space for individual
and population growth, and for normal behavior; food, water, air,
light, minerals or other nutritional or physiological requirements;
cover or shelter; sites for breeding, reproduction, or rearing of
offspring, germination, or seed dispersal; and habitats that are
protected from disturbance or are representative of the historic
geographical and ecological distributions of a species.
Much of what is known about the specific physical and biological
requirements of Astragalus jaegerianus is described in the Background
section of this proposal and in the final listing rule. The proposed
critical habitat is designed to provide sufficient habitat to maintain
self-sustaining populations of Astragalus jaegerianus throughout its
range and to provide those habitat components essential for the
conservation of the species. These habitat components provide for: (1)
Individual and population growth, including sites for germination,
pollination, reproduction, pollen and seed dispersal, and seed bank;
(2) sites for the host plants that provide structural support for A.
jaegerianus; (3) intervening areas that allow gene flow and provide
connectivity or linkage within segments of the larger population; and
(4) areas that provide basic requirements for growth, such as water,
light, and minerals.
The conservation of Astragalus jaegerianus is dependent upon a
number of factors, including the protection and management of existing
population sites and habitat and the maintenance of normal ecological
functions within these sites, including connectivity between groups of
plants within close geographic proximity to facilitate gene flow among
the sites by pollinator activity and dispersal of seeds. Some of the
factors associated with the observed and potential distribution of this
species include the following: A portion of seeds will likely germinate
if germination requirements of scarification and moisture are met
within a germination time frame for the species; germination patterns
likely reflect the distribution of the seed bank in the soils; and
distribution patterns of standing plants may, in large part, reflect
the distribution pattern of requisite climatic conditions for a
particular year, while in other areas, standing plants may not be
visible but persist as dormant taproots for a number of years.
Including habitat surrounding the known populations outward for a
distance of 0.25 mi (0.4 km) would ensure inclusion of most of the
population.
Based on our knowledge to date, the primary constituent elements of
critical habitat for Astragalus jaegerianus consist of:
(1) Shallow soils (between 3,100 and 4,200 ft (945 to 1,280 m) in
elevation) derived primarily from Jurassic or Cretaceous granitic
bedrock, and less frequently on soils derived from diorite or gabbroid
bedrock and at one location on granitic soils overlain by scattered
rhyolitic cobble, gravel, and sand.
(2) The host shrubs (between 3,100 and 4,200 ft (945 to 1,280 m) in
elevation) within which Astragalus jaegerianus grows, most notably
Thamnosma montana, Ambrosia dumosa, Eriogonum fasciculatum ssp.
polifolium, Ericameria cooperi var. cooperi, Ephedra nevadensis, and
Salazaria mexicana that are usually found in mixed desert shrub
communities.
We selected critical habitat areas to provide for the conservation
of Astragalus jaegerianus at the only four sites where they are known
to occur. We are not proposing any critical habitat units that do not
contain plants.
Special Management Considerations
Within the geographic area occupied by the species, for an area to
be designated as critical habitat it must contain those physical or
biological features essential to the conservation of the species that
may require special management considerations or protection. The
Goldstone-Brinkman unit may require special management considerations
or protection due to the threats to the species and its habitat posed
by invasions of non-native plants such as Sahara mustard (Brassica
tournefortii) that may take over habitat for the species; habitat
fragmentation that detrimentally affects plant-host plant (composition
and structure of the desert scrub community) and plant-
[[Page 18027]]
pollinator interactions, leading to a decline in species reproduction
and increasing susceptibility to non-native plant invasion; and
vehicles that cause direct and indirect impacts, such as excessive
dust, to the plant. Habitat for Astragalus jaegerianus in the
Goldstone-Brinkman unit has been fragmented to a minor extent. We
anticipate that in the future, habitat fragmentation will increase,
that changes in composition and structure of the plant community may be
altered by the spread of non-native plants, and that the direct and
indirect effects of dust may increase. All of these threats would
render the habitat less suitable for A. jaegerianus, and special
management may be needed to address them. At this time, special
management considerations under 3(5)(a) of the Act do warrant proposing
this unit as critical habitat, but if circumstances change these areas
may be designated in the final rule.
The Paradise unit may require special management considerations or
protection due to the threats to the species and its habitat posed by
invasions of non-native plants such as Sahara mustard (Brassica
tournefortii) that may take over habitat for the species; habitat
fragmentation that detrimentally affects plant-host plant (composition
and structure of the desert scrub community) and plant-pollinator
interactions, leading to a decline in species reproduction and
increasing susceptibility to non-native plant invasion; vehicles that
cause direct and indirect impacts, such as excessive dust, to the
plant. Habitat for Astragalus jaegerianus in the Paradise unit has been
fragmented to a minor extent. We anticipate that in the future, habitat
fragmentation may increase, that changes in composition and structure
of the plant community may be altered by the spread of non-native
plants, and that the direct and indirect effects of dust may increase.
All of these threats would render the habitat less suitable for A.
jaegerianus, and special management may be needed to address them. At
this time, special management considerations under 3(5)(a) of the Act
do warrant proposing this unit as critical habitat, but if
circumstances change these areas may be designated in the final rule.
The Coolgardie unit may require special management considerations
or protection due to the threats to the species and its habitat posed
by invasions of non-native plants such as Sahara mustard (Brassica
tournefortii) that may take over habitat for the species; habitat
fragmentation that detrimentally affects plant-host plant (composition
and structure of the desert scrub community) and plant-pollinator
interactions, leading to a decline in species reproduction and
increasing susceptibility to non-native plant invasion; vehicles that
cause direct and indirect impacts, such as excessive dust, to the
plant; and limited mining activities that can lead to changes in
essential habitat conditions (e.g., decreases in plant cover, and
increases in non-native species). Habitat for Astragalus jaegerianus in
the Coolgardie unit has been fragmented to a moderate extent from
current and historical mining and from off-road vehicle use, and non-
native species have been introduced into the area. We anticipate that
in the future, habitat fragmentation may increase, and that changes in
composition and structure of the plant community may be altered by the
continued spread of non-native plants. All of these threats would
render the habitat less suitable for A. jaegerianus, and special
management may be needed to address them. At this time, special
management considerations under 3(5)(a) of the Act do warrant proposing
this unit as critical habitat, but if circumstances change these areas
may be designated in the final rule.
Proposed Critical Habitat Designation
The proposed critical habitat areas described below constitute our
best assessment at this time of the areas needed for the species'
conservation. The three areas being proposed as critical habitat are
all within an area that is north of the town of Barstow in the Mojave
Desert in San Bernardino County, California, are currently occupied,
and contain the primary constituent elements that sustain the
Astragalus jaegerianus.
The following general areas are proposed as critical habitat (see
legal descriptions for exact critical habitat boundaries).
Unit 1: Goldstone-Brinkman
Unit 1 consists of approximately 9,906 ac (4,008 ha), with 9,502 ac
(3,845 ha) of the lands managed by the Army on NTC. Of the Army land,
996 ac (403 ha) are leased to NASA (Goldstone Tracking Station). The
Army is proposing to designate approximately 1,300 ac (526 ha) as the
Goldstone Conservation Area. The rest of the unit consists of 211 ac
(85 ha) of state land, and 193 ac (78 ha) of private land. This unit is
essential because it supports two of the four populations of Astragalus
jaegerianus--the Goldstone and Brinkman Wash--Montana Mine populations.
In 2001 surveys, 555 and 1,487 individuals were observed, respectively,
in these two populations. The land within this unit supports the PCEs
for the species--granitic soils and plant community that are necessary
for the growth, reproduction, and establishment of A. jaergerianus
individuals. This unit also includes an essential narrow 0.125 mi (0.2
km) corridor between the two populations that contains the appropriate
granitic soils and plant community to support A. jaegerianus, and
supports pollinators and seed dispersers between the two populations.
This unit is the northeasternmost of the three units.
Unit 2: Paradise
Unit 2 consists of approximately 6,828 ac (2,763 ha). Of this,
5,755 ac (2,329 ha) is on Army lands on NTC, and approximately 466 ac
(189 ha) on adjacent Federal lands managed by the Bureau of Land
Management (Bureau). The Army is proposing to designate approximately
4,800 ac (1,943 ha) of this site as the East Paradise Valley
Conservation Area. The Bureau is also proposing to designate an area of
approximately 1,000 ac (405 ha), which includes some private
inholdings, at this site as part of the East Paradise Valley
Conservation Area. This unit is essential because it supports the
Paradise population, only one of four populations of Astragalus
jaegerianus; in 2001 surveys, 1,667 individuals were observed in this
population. The land within this unit supports the granitic soils and
plant community that are necessary for the growth, reproduction, and
establishment of A. jaegerianus individuals. These granitic soils and
plant community also provide habitat for the pollinators that visit A.
jaegerianus flowers that results in the production of seed, habitat for
seed dispersers (birds, small mammals, and large insects) that carry
seed between the coppices of suitable host shrubs, and as long-term
storage for the soil seedbank of A. jaegerianus.
Unit 3: Coolgardie
Unit 3 consists of approximately 12,788 ac (5,175 ha), primarily on
Federal lands managed by the Bureau. Approximately the same amount of
land (9,161 ac (3,707 ha)) is within the Bureau's proposed Coolgardie
Mesa Conservation Area (CMCA) and overlaps to a great extent with the
proposed Coolgardie critical habitat unit. Parcels of private land are
scattered throughout this unit and total approximately 3,627 ac (1,467
ha). Some portion of these parcels most likely will be acquired by the
Bureau and added to the CMCA. This unit is essential because it
supports one of only four populations of Astragalus jaegerianus. In
2001 surveys,
[[Page 18028]]
2,014 plants were observed in this population. The land within this
unit supports the granitic soils and plant community that are necessary
for the growth, reproduction, and establishment of A. jaegerianus
individuals; proposed critical habitat does not include the ``donut
hole'' in the center of the unit, which does not contain the
appropriate granitic soils. These granitic soils and plant community
also provide habitat for the pollinators that visit A. jaegerianus
flowers that results in the production of seed, habitat for seed
dispersers (birds, small mammals, and large insects) that carry seed
between the coppices of suitable host shrubs, and as long-term storage
for the soil seedbank of A. jaegerianus.
The approximate areas of proposed critical habitat by land
ownership are shown in Table 1.
Table 1.--Approximate Areas, Given in Acres (ac) \1\ and Hectares (ha) of Proposed Critical Habitat For Astragalus jaegerianus by Land Ownership
--------------------------------------------------------------------------------------------------------------------------------------------------------
Department of Defense Bureau of Land State lands
Unit name lands (Federal) Management (Federal) commission Private lands Totals
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Goldstone-Brinkman.............. 9,502 ac (3,845 ha)... 0 ac (0 ha)........... 211 ac (85 ha)....... 193 ac (78 ha)....... 9,906 ac (4,008 ha)
2. Paradise........................ 5,755 ac (2,329 ha)... 466 ac (189 ha)....... 0 ac (0 ha).......... 607 ac (246 ha)...... 6,828 ac (2,763 ha)
3. Coolgardie...................... 0 ac (0 ha)........... 9,074 ac (3,672 ha)... 0 ac (0 ha).......... 3,714 ac (1503 ha)... 12,788 ac (5,175 ha)
Totals......................... 15,257 ac (6,174 ha).. 9,627 ac (3,896 ha)... 211 ac (85 ha)....... 4,427 ac (1,792 ha).. 29,522 ac (11,947 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Approximate acres have been converted to hectares (1 ac = 0.4047 ha). Fractions of acres and hectares have been rounded to the nearest whole number.
Totals are sums of units.
Effects of Critical Habitat Designation
Section 7(a) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out do
not destroy or adversely modify critical habitat to the extent that the
action appreciably diminishes the value of the critical habitat for the
survival and recovery of the species. Individuals, organizations,
States, local governments, and other non-Federal entities are affected
by the designation of critical habitat only if their actions occur on
Federal lands, require a Federal permit, license, or other
authorization, or involve Federal funding.
Section 7(a) of the Act requires Federal agencies, including the
Service, 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 designated or proposed. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402. Section 7(a)(4) requires Federal agencies
to confer with us on any action that is likely to jeopardize the
continued existence of a proposed species or result in destruction or
adverse modification of proposed critical habitat. Conference reports
provide conservation recommendations to assist the action agency in
eliminating conflicts that may be caused by the proposed action. The
conservation recommendations in a conference report are advisory.
We may issue a formal conference report, if requested by the
Federal action agency. Formal conference reports include an opinion
that is prepared according to 50 CFR 402.14, as if the species was
listed or critical habitat designated. We may adopt the formal
conference report as the biological opinion when the species is listed
or critical habitat designated, if no substantial new information or
changes in the action alter the content of the opinion (see 50 CFR
402.10(d)).
If a species is listed or critical habitat is designated, 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 such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency must enter into
consultation with us. Through this consultation, we would ensure that
the permitted actions do not destroy or adversely modify critical
habitat.
When we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide reasonable and prudent alternatives to the
project, if any are identifiable. ``Reasonable and prudent
alternatives'' are defined at 50 CFR 402.02 as alternative actions
identified during consultation that can be implemented in a manner
consistent with the intended purpose of the action, that are consistent
with the scope of the Federal agency's legal authority and
jurisdiction, that are economically and technologically feasible, and
that the Director believes would avoid the destruction or adverse
modification of critical habitat. Reasonable and prudent alternatives
can vary from slight project modifications to extensive redesign or
relocation of the project. Costs associated with implementing a
reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where critical
habitat is subsequently designated, and the Federal agency has retained
discretionary involvement or control over the action or such
discretionary involvement or control is authorized by law.
Consequently, some Federal agencies may request reinitiation of
consultation or conference with us on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat or adversely modify or destroy proposed critical
habitat.
Activities that, when carried out, funded, or authorized by a
Federal agency, may directly or indirectly affect critical habitat
include, but are not limited to:
(1) Activities that would disturb the upper layers of soil,
including disturbance of the soil crust, soil compaction, soil
displacement, and soil destabilization. These activities include, but
are not limited to, livestock grazing, fire management, and
recreational use that would include mechanical disturbance such as
would occur with tracked vehicles, heavy-wheeled vehicles, off-highway
vehicles (including motorcycles), and mining activities, such as ``club
mining'' with drywashers and sluices.
(2) Activities that appreciably degrade or destroy the native
desert scrub communities, including but not limited to livestock
grazing, clearing, discing,
[[Page 18029]]
fire management, and recreational use that would include mechanical
disturbance such as would occur with tracked vehicles, heavy-wheeled
vehicles, off-highway vehicles (including motorcycles), and mining
activities such as ``club mining'' with drywashers and sluices.
(3) The application or runoff of chemical or biological agents into
the air, onto the soil, or onto native vegetation, including substances
such as pesticides, herbicides, fertilizers, tackifiers, obscurants,
and chemical fire retardants.
Activities that may destroy or adversely modify critical habitat
include those that alter the primary constituent elements to an extent
that the value of critical habitat for both the survival and recovery
of Astragalus jaegerianus is appreciably reduced. We note that such
activities may also jeopardize the continued existence of the species.
We recognize that the proposed designation of critical habitat may
not include all of the habitat areas that may eventually be determined
to be necessary for the recovery of the species. For this reason, we
want to ensure that the public is aware that critical habitat
designations do not signal that habitat outside the proposed
designation is unimportant or may not be required for recovery. Areas
outside the proposed critical habitat designation will continue to be
subject to conservation actions that may be implemented under section
7(a)(1) of the Act and to the regulatory protections afforded by the
section 7(a)(2) jeopardy standard and the prohibitions of section 9 of
the Act. Critical habitat designations made on the basis of the best
available information at the time of designation will not control the
direction and substance of future recovery plans, habitat conservation
plans, or other species conservation planning efforts if new
information available to these planning efforts calls for a different
outcome.
Activities on Federal lands that may affect Astragalus jaegerianus
or its critical habitat will require section 7 consultation. Activities
on private or State lands requiring a permit from a Federal agency,
such as a permit from the U.S. Army Corps of Engineers under section
404 of the Clean Water Act or any other activity requiring Federal
action (i.e., funding, authorization), will also continue to be subject
to the section 7 consultation process. Federal actions not affecting
listed species or critical habitat, and actions on non-Federal and
private lands that are not federally funded, authorized, or permitted,
do not require section 7 consultation.
Section 4(b)(8) of the Act requires us to briefly describe and
evaluate in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat would be those that alter the primary constituent elements to
the extent that the value of critical habitat for the conservation of
Astragalus jaegerianus is appreciably reduced. We note that such
activities may also jeopardize the continued existence of the species.
Designation of critical habitat could affect the following agencies
and/or actions:
(1) Military-related and construction activities of the Army on its
lands or lands under its jurisdiction, including those lands leased to
NASA;
(2) Activities of the Bureau of Land Management on its lands or
lands under its jurisdiction;
(3) The release or authorization of release of biological control
agents by Federal agencies, including the Bureau of Land Management,
the Army, and the U.S. Department of Agriculture; and
(4) Habitat restoration projects on private lands receiving funding
from Federal agencies, such as from the Natural Resources Conservation
Service.
As discussed previously in this rule, we are consulting with both
the Army and the Bureau on activities that are being proposed on their
lands. We are consulting with the Army on its proposed addition of
training lands on NTC (Charis 2003). We are also consulting with the
Bureau as the lead Federal agency for the proposed West Mojave Plan
(Bureau 2003).
Where federally listed wildlife species occur on private lands
proposed for development, any habitat conservation plans submitted by
the applicant to secure an incidental take permit, pursuant to section
10(a)(1)(B) of the Act, would be subject to the section 7 consultation
process. The Superior-Cronese Critical Habitat Unit for the desert
tortoise (Gopherus agassizii), a species that is listed as threatened
under the Act, overlaps in range with Astragalus jaegerianus in a
portion of the Brinkman-Montana, Paradise, and Coolgardie populations
of the species. Although we anticipate that most of the activities
occurring on private lands within the range of A. jaegerianus will
eventually be included under the umbrella of the HCP to be prepared by
the County of San Bernardino, there may be activities proposed for
private lands that either need to be completed prior to the approval of
the WMP's HCP, or there may be a proposed activity that is not covered
by the HCP, and therefore may require a separate habitat conservation
plan.
If you have questions regarding whether specific activities will
likely constitute destruction or adverse modification of critical
habitat, contact the Field Supervisor, Ventura Fish and Wildlife Office
(see ADDRESSES section). Requests for copies of the regulations on
listed wildlife and inquiries about prohibitions and permits may be
addressed to the U.S. Fish and Wildlife Service, Portland Regional
Office, 911 NE 11th Avenue, Portland, OR 97232 (telephone 503/231-6131;
facsimile 503/231-6243).
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section
4(b)(2) of the Act
We have not excluded any lands from this proposed designation
pursuant to sections 3(5)(A), 4(a)(3), and 4(b)(2) of the Act. Although
the Bureau has published the draft EIR/S for the West Mojave Plan and
we anticipate the final plan may be published in fall 2004, the
attendant draft HCP has yet to be prepared. The proposed designation
includes a portion of Fort Irwin, an Army installation. The Army has
proposed to establish two conservation areas and an additional area
that would be subject to light use (i.e., foot traffic only); however,
the integrated natural resource management plan for this portion of the
installation has not been finalized. We expect to work with the Army on
the development of the integrated natural resource management plan for
Fort Irwin in the coming months. We may consider excluding these lands
from critical habitat in the final designation pursuant to these
sections of the Act.
Economic Analysis
An analysis of the economic impacts of proposing critical habitat
for the Astragalus jaegerianus is being prepared. We will announce the
availability of the draft economic analysis as soon as it is completed,
at which time we will seek public review and comment. At that time,
copies of the draft economic analysis will be available for downloading
from the Internet at http://ventura.fws.gov, or by contacting the
Ventura Fish and Wildlife Office directly (see ADDRESSES section).
Peer Review
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we will solicit the expert
opinions of at least
[[Page 18030]]
three appropriate and independent specialists regarding this proposed
rule. The purpose of such review is to ensure that our critical habitat
designation is based on scientifically sound data, assumptions, and
analyses. We will send these peer reviewers copies of this proposed
rule immediately following publication in the Federal Register. We will
invite these peer reviewers to comment, during the public comment
period, on the specific assumptions and conclusions regarding the
proposed designation of critical habitat.
We will consider all comments and information received within the
60-day comment period on this proposed rule as we prepare our final
rulemaking. Accordingly, the final determination may differ from this
proposal.
Public Hearings
The Endangered Species Act provides for one or more public hearings
on this proposal, if requested. Requests must be received within 45
days of the date of publication of the proposal in the Federal
Register. Such requests must be made in writing and be addressed to the
Field Supervisor (see ADDRESSES section). We will schedule public
hearings on this proposal, if any are requested, and announce the
dates, times, and places of those hearings in the Federal Register and
local newspapers at least 15 days prior to the first hearing.
Clarity of the Rule
Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand, including answers to
questions such as the following--(1) Are the requirements in the
proposed rule clearly stated? (2) Does the proposed rule contain
technical jargon that interferes with the clarity? (3) Does the format
of the proposed rule (grouping and order of the sections, use of
headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the
description of the notice in the SUPPLEMENTARY INFORMATION section of
the preamble helpful in understanding the notice? (5) What else could
we do to make this proposed rule easier to understand?
Send a copy of any comments that concern how we could make this
proposed rule easier to understand to--Office of Regulatory Affairs,
Department of the Interior, Room 7229, 1849 C Street, NW., Washington,
DC 20240. You may e-mail your comments to: [email protected].
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order (EO) 12866, this action was
submitted to the Office of Management and Budget (OMB); however they
declined to review the proposed rule. We will submit the final rule to
OMB for their review. OMB makes the final determination under Executive
Order 12866.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. SBREFA amended the
Regulatory Flexibility Act to require Federal agencies to provide a
statement of the factual basis for certifying that a rule will not have
a significant economic impact on a substantial number of small
entities. SBREFA also amended the Regulatory Flexibility Act to require
a certification statement. Based on the information that is available
to us at this time, we are certifying that this proposed designation of
critical habitat will not have a significant economic impact on a
substantial number of small entities. The following discussion explains
our rationale.
According to the Small Business Administration (SBA), small
entities include small organizations, including any independent
nonprofit organization that is not dominant in its field, and small
governmental jurisdictions, including school boards and city and town
governments that serve fewer than 50,000 residents, as well as small
businesses. The SBA defines small businesses categorically and has
provided standards for determining what constitutes a small business at
13 CFR parts 121-201 (also found at http://www.sba.gov/size/), which
the Regulatory Flexibility Act requires all Federal agencies to follow.
To determine if potential economic impacts to these small entities are
significant, we consider the types of activities that might trigger
regulatory impacts under this rule as well as the types of project
modifications that may result.
The Regulatory Flexibility Act does not explicitly define either
``substantial number'' or ``significant economic impact.''
Consequently, to assess whether a ``substantial number'' of small
entities is affected by this designation, this analysis considers the
relative number of small entities likely to be impacted in the area.
Similarly, this analysis considers the relative cost of compliance on
the revenues/profit margins of small entities in determining whether or
not entities incur a ``significant economic impact.'' Only small
entities that are expected to be directly affected by the designation
are considered in this portion of the analysis. This approach is
consistent with several judicial opinions related to the scope of the
Regulatory Flexibility Act. (Mid-Tex Electric Co-Op, Inc. v. F.E.R.C.
and American Trucking Associations, Inc. v. EPA).
Designation of critical habitat only affects activities conducted,
funded, or permitted by Federal agencies; non-Federal activities are
not affected by the designation if they lack a Federal nexus. In areas
where the species is present, Federal agencies funding, permitting, or
implementing activities are already required to avoid jeopardizing the
continued existence of the Astragalus jaegerianus through consultation
with us under section 7 of the Act. If this critical habitat
designation is finalized, Federal agencies must also consult with us to
ensure that their activities do not destroy or adversely modify
designated critical habitat.
Should a federally funded, permitted, or implemented project be
proposed that may affect designated critical habitat, we will work with
the Federal action agency and any applicant, through section 7
consultation, to identify ways to implement the proposed project while
minimizing or avoiding any adverse effect to the species or critical
habitat. In our experience, the vast majority of such projects can be
successfully implemented with at most minor changes that avoid
significant economic impacts to project proponents.
In the case of Astragalus jaegerianus, our review of the
consultation history for this plant and other information currently
available to us indicates that the proposed designation of critical
habitat is not likely to have a significant impact on any small
entities or classes of small entities. We could identify no small
entities that would be affected by this designation. Therefore, we are
certifying that the proposed designation of critical habitat for
Astragalus
[[Page 18031]]
jaegerianus will not have a significant economic impact on a
substantial number of small entities, and an initial regulatory
flexibility analysis is not required. This determination will be
revisited after the close of the comment period and revised, if
necessary, in the final rule.
As required under section 4(b)(2) of the Act, we will conduct an
analysis of the potential economic impacts of this proposed critical
habitat designation and will make that analysis available for public
review and comment before finalizing this designation. However, court
deadlines require us to publish this proposed rule before the economic
analysis can be completed.
This discussion is based upon the information regarding potential
economic impact that is available to us at this time. This assessment
of economic effects may be modified prior to final rulemaking based
upon development and review of the draft economic analysis prepared
pursuant to section 4(b)(2) of the ESA and Executive Order 12866. This
analysis is for the purpose of compliance with the Regulatory
Flexibility Act and does not reflect our position on the type of
economic analysis required by New Mexico Cattle Growers Assn. v. U.S.
Fish & Wildlife Service 248 F.3d 1277 (10th Cir. 2001).
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))
In the draft economic analysis, we will determine whether
designation of critical habitat will cause (a) any effect on the
economy of $100 million or more, (b) any increases in costs or prices
for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions in the economic analysis, or
(c) any significant adverse effects on competition, employment,
investment, productivity, innovation, or the ability of U.S.-based
enterprises to compete with foreign-based enterprises.
Executive Order 13211
On May 18, 2001, the President issued an Executive Order (E.O.
13211) on regulations that significantly affect energy supply,
distribution, and use. Executive Order 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
This proposed rule to designate critical habitat for the Astragalus
jaegerianus, as described above, is not expected to significantly
affect energy supplies, distribution, or use. There are no transmission
power lines identified on the proposed designated habitat, or energy
extraction activities (Bureau of Land Management 1980). Therefore, this
action is not a significant energy action and no Statement of Energy
Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings.
(a) Under the Unfunded Mandates Reform Act, if a rule will produce
a Federal mandate of $100 million or greater in any one year, a
statement must be prepared and a summary of that statement included in
the rulemaking. In general, a Federal mandate is a provision in
legislation, statute or regulation that would impose an enforceable
duty upon State, local, tribal governments, or the private sector and
includes both ``Federal intergovernmental mandates'' and ``Federal
private sector mandates.'' These terms are defined in 2 U.S.C. 658(5)-
(7). If the economic analysis being prepared to analyze the economic
impacts of this designation indicates that the rule will produce a
Federal mandate of $100 million or more in any year, a statement will
be prepared and this proposed rule will be supplemented with a summary
of that statement published in the notice announcing availability of
the proposed economic analysis.
(b) This proposed rule will not ``significantly or uniquely''
affect small governments. A Small Government Agency Plan is not
required. State lands constitute a very small amount, only 0.7%, of the
total proposed designation. Given the distribution of this species,
small governments will not be uniquely affected by this proposed rule.
Small governments will not be affected at all unless they propose an
action requiring Federal funds, permits, or other authorization. Any
such activity will require that the involved Federal agency ensure that
the action is not likely to adversely modify or destroy designated
critical habitat. However, as discussed above, Federal agencies are
currently required to ensure that any such activity is not likely to
jeopardize the species, and no further regulatory impacts from this
proposed designation of critical habitat are anticipated. We will
examine any potential impacts to small governments in our economic
analysis, and revise our determination if necessary.
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference With Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for Astragalus jaegerianus. This
preliminary assessment concludes that this proposed rule does not pose
significant takings implications. However, we have not yet completed
the economic analysis for this proposed rule. Once the economic
analysis is available, we will review and revise this preliminary
assessment as warranted.
Federalism
In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. As discussed above, the designation of critical habitat in
areas currently occupied by Astragalus jaegerianus would have little
incremental impact on State and local governments and their activities.
This is because the proposed critical habitat occurs to a great extent
on Federal lands managed by the Department of Defense and the Bureau of
Land Management, and less than 2 percent occurs on private lands that
would involve State and local agencies.
The proposed designation of critical habitat may have some benefit
to State and local governments in that the areas essential to the
conservation of these species are more clearly defined, and the primary
constituent elements of the habitat necessary to the survival of the
species are identified. While this definition and identification does
not alter where and what federally sponsored activities may occur, it
may assist these local governments in long-range planning rather than
waiting for case-by-case section 7 consultation to occur.
Civil Justice Reform
In accordance with Executive Order 12988, the Department of the
Interior's Office of the Solicitor has determined that this rule does
not unduly burden the judicial system and does meet the requirements of
sections 3(a) and 3(b)(2) of the Order. We are proposing to designate
critical habitat in accordance with the provisions of the Endangered
Species Act. The rule uses standard property descriptions and
identifies the primary constituent elements within the designated areas
to assist the public in understanding the habitat needs of Astragalus
jaegerianus.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This proposed rule does not contain new or revised information
collection for which OMB approval is required under the Paperwork
Reduction Act.
[[Page 18032]]
Information collections associated with certain Act permits are covered
by an existing OMB approval and are assigned clearance No. 1018-0094,
Forms 3-200-55 and 3-200-56, with an expiration date of July 31, 2004.
Detailed information for Act documentation appears at 50 CFR part 17.
This rule 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
We have determined that an Environmental Assessment and/or an
Environmental Impact Statement as defined by the National Environmental
Policy Act of 1969 need not be prepared in connection with regulations
adopted pursuant to section 4(a) of the Endangered Species Act, as
amended. A notice outlining our reason for this determination was
published in the Federal Register on October 25, 1983 (48 FR 49244).
This proposed rule does not constitute a major Federal action
significantly affecting the quality of the human environment.
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) and the Department of the 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. We have determined that there are no Tribal lands
essential for the conservation of Astragalus jaegerianus. Therefore,
designation of critical habitat for A. jaegerianus has not been
proposed on Tribal lands.
References Cited
A complete list of all references cited herein, as well as others,
is available upon request from the Ventura Fish and Wildlife Office
(see ADDRESSES section).
Author
The primary author of this proposed rule is Constance Rutherford,
Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493
Portola Road, Suite B, Ventura, California 93003 (805/644-1766).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, the Service hereby proposes to amend part 17,
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.12(h), revise the entry for ``Astragalus
jaegerianus'' under ``FLOWERING PLANTS,'' to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
FLOWERING PLANTS
* * * * * * *
Astragalus jaegerianus........... Lane Mountain milk- U.S.A. (CA)........ Fabaceae---Pea..... E 647 17.96(a) NA
vetch.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. In Sec. 17.96(a), add critical habitat for Astragalus
jaegerianus, in alphabetical order under Family Fabaceae to read as
follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Fabaceae: Astragalus jaegerianus (Lane Mountain milk-vetch)
(1) Critical habitat units are depicted for San Bernardino County,
California, on the maps below.
(2) Critical habitat consists of the mixed desert scrub community
within the range of Astragalus jaegerianus that is characterized by the
following primary constituent elements:
(i) Shallow soils derived primarily from Jurassic or Cretaceous
granitic bedrock, and less frequently soils derived from diorite or
gabbroid bedrock and at one location granitic soils overlain by
scattered rhyolitic cobble, gravel, and sand.
(ii) The highly diverse mixed desert scrub community that includes
the host shrubs within which Astragalus jaegerianus grows, most
notably: Thamnosma montana, Ambrosia dumosa, Eriogonum fasciculatum
ssp. polifolium, Ericameria cooperi var. cooperi, Ephedra nevadensis,
and Salazaria mexicana.
(3) Critical Habitat Map Units.
(i) Map Unit 1: Goldstone-Brinkman.
San Bernardino County, California. From USGS 1:24,000 quadrangle
maps Paradise Range and Williams Well. Lands bounded by UTM zone 11
NAD27 coordinates (E,N): 511200; 3897700: 511400; 3898100; 511600;
3898400: 511800; 3898600: 515900; 3898600: 516400; 3898500: 516800;
3898400: 516900; 3898300: 517300; 3898500: 517500; 3898600: 517600;
3898700: 517500; 3899100: 517500; 3900100: 517600; 3900200: 518400;
3900600: 519000; 3900600: 519600; 3900500: 520000; 3900300: 520200;
3900100: 521400; 3898700: 521500; 3898500: 521500; 3898300: 521400;
3897900: 521300; 3897800: 521100; 3897700: 519400; 3897700: 518600;
3897800: 518400; 3897600: 518100; 3897400: 517900; 3897300: 517800;
3897100: 517300; 3896600: 517400; 3896500: 517700; 3895900: 517700;
3895300: 517600; 3894700: 517500; 3894500: 517400; 3894400: 517000;
3894100: 516900; 3894000: 517300; 3893800: 517800; 3893500: 518100;
3893300: 518200; 3893200: 518200; 3892900: 518000; 3892600: 517500;
3892100: 517300; 3892100: 517100; 3892200: 516800; 3892400: 515800;
3893100: 515600; 3893300: 515500; 3893200:
[[Page 18033]]
514000; 3892200: 513600; 3892200: 512900; 3892600: 512500; 3893000:
512400; 3893200: 512500; 3893800: 512600; 3894400: 512700; 3894900:
512800; 3895000: 514400; 3896100: 514600; 3896200: 514700; 3896200:
515000; 3896100: 515100; 3896600: 512800; 3896500: 511900; 3896600:
511700; 3896700: 511400; 3897100: 511200; 3897400: returning to 511200;
3897700.
(ii) Map Unit 2: Paradise.
San Bernardino County, California. From USGS 1:24,000 quadrangle
map Williams Well. Lands bounded by UTM zone 11 NAD27 coordinates
(E,N): 504000; 3895000: 504400; 3895200: 505100; 3895500: 505800;
3895500: 506200; 3895400: 506600; 3895300: 506800; 3895100: 507500;
3893900: 507600; 3894000: 508400; 3894700: 508800; 3895000: 509300;
3895400: 509500; 3895500: 509900; 3895500: 510000; 3895400: 510200;
3895100: 510600; 3894400: 510700; 3894200: 510800; 3893900: 510900;
3893500: 510900; 3893000: 510800; 3892500: 510500; 3891200: 510400;
3891000: 510200; 3890800: 509700; 3890500: 507800; 3889400: 507600;
3889300: 507500; 3889300: 507100; 3889400: 506700; 3889800: 506400;
3890300: 506200; 3891000: 506000; 3891800: 505900; 3892200: 505600;
3892400: 504900; 3892900: 504500; 3893300: 504300; 3893600: 503900;
3894300: 503900; 3894800: returning to 504000; 3895000.
(iii) Map Unit 3: Coolgardie.
San Bernardino County, California. From USGS 1:24,000 quadrangle
maps Lane Mountain and Mud Hills. Lands bounded by UTM zone 11 NAD27
coordinates (E,N): 495800; 3884400: 496400; 3884800: 497200; 3885200:
497400; 3885300: 497900; 3885500: 498300; 3885600: 499100; 3885700:
500500; 3885900: 501200; 3886000: 502000; 3886100: 502700; 3886200:
503400; 3886300: 503900; 3886200: 504400; 3886000: 504800; 3885800:
505000; 3885700: 505100; 3885600: 505300; 3885400: 505400; 3885200:
505100; 3884300: 505100; 3880800: 504900; 3880300: 504800; 3880100:
504600; 3879700: 504400; 3879600: 503900; 3879400: 503500; 3879300:
503000; 3879200: 502400; 3879100: 502100; 3879100: 502000; 3878900:
502000; 3878800: 501900; 3878600: 501100; 3878500: 500400; 3878400:
499700; 3878300: 499600; 3878300: 499300; 3878400: 498600; 3878600:
498400; 3878800: 498100; 3879900: 498000; 3880300: 497800; 3881000:
496300; 3881600: 496100; 3881800: 496000; 3882200: 495800; 3883000:
495700; 3883500: 495600; 3883900: 495600; 3884000: returning to 495800;
3884400.
Excluding: 498800; 3883700: 498900; 3883600: 499000; 3883400:
499400; 3882600: 499500; 3882100: 499500; 3882000: 499600; 3881800:
500000; 3881600: 500900; 3881100: 501400; 3880800: 501500; 3880800:
502100; 3881000: 502000; 3881100: 501800; 3882400: 501800; 3882800:
501700; 3882900: 501300; 3883400: 501000; 3883800: 500500; 3883800:
499100; 3883900: returning to 498800; 3883700.
(iv) Note: Maps for Units 1, 2, and 3 follow:
BILLING CODE 4310-55-P
[[Page 18034]]
[GRAPHIC] [TIFF OMITTED] TP06AP04.026
[[Page 18035]]
Dated: March 30, 2004.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-7695 Filed 4-5-04; 8:45 am]
BILLING CODE 4310-55-C