[Federal Register Volume 70, Number 110 (Thursday, June 9, 2005)]
[Rules and Regulations]
[Pages 33774-33795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11315]
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Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Astragalus lentiginosus var. piscinensis (Fish Slough Milk-
Vetch); Final Rule
Federal Register / Vol. 70, No. 110 / Thursday, June 9, 2005 / Rules
and Regulations
[[Page 33774]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AJ09
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Astragalus lentiginosus var. piscinensis (Fish
Slough Milk-Vetch)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
designating critical habitat for the federally threatened Astragalus
lentiginosus var. piscinensis (Fish Slough milk-vetch) pursuant to the
Endangered Species Act of 1973, as amended (Act). In total,
approximately 8,007 acres (ac) (3,240 hectares (ha)) fall within the
boundary of the critical habitat designation. The critical habitat is
located in Mono and Inyo Counties, California.
DATES: This rule becomes effective on July 11, 2005.
ADDRESSES: All comments and materials received during the comment
periods, and supporting documentation used in preparation of the
proposed and final rules, will be available for public inspection, by
appointment, during normal business hours at the Ventura Fish and
Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93003
(telephone number 805/644-1766). The final rule, economic analysis, and
map will also be available via the Internet at http://ventura.fws.gov/.
FOR FURTHER INFORMATION CONTACT: Field Supervisor, Ventura Fish and
Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93003
(telephone 805/644-1766; facsimile 805/644-3958).
SUPPLEMENTARY INFORMATION
Designation of Critical Habitat Provides Little Additional Protection
to Species
In the 30 years of implementing the Act (16 U.S.C. 1531 et seq.),
we have found that the designation of statutory critical habitat
provides little additional protection to most listed species, while
consuming significant amounts of available conservation resources. Our
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. We believe 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 473 species or 37 percent
of the 1,264 listed species in the U.S. under the jurisdiction of the
Service have designated critical habitat.
We address the habitat needs of all 1,264 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. We believe that it is
these measures that may make the difference between extinction and
survival for many species.
We note, however, that two courts found our definition of adverse
modification to be invalid (March 15, 2001, decision of the U.S. Court
of Appeals for the Fifth Circuit, Sierra Club v. U.S. Fish and Wildlife
Service et al., F.3d 434, and the August 6, 2004, Ninth Circuit
judicial opinion, Gifford Pinchot Task Force v. U.S. Fish and Wildlife
Service). In response to these decisions, we are reviewing the
regulatory definition of adverse modification in relation to the
conservation of the 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 us 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 us with little
ability to prioritize our 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 to sue relative to critical habitat, and to comply
with the growing number of adverse court orders. As a result, listing
petition responses, our 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
us 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 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 the
National Environmental Policy Act of 1969 (NEPA). 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.
Background
Our intent is to discuss only those topics directly relevant to the
final designation of critical habitat in this rule. For more
information on Astragalus lentiginosus var. piscinensis, refer to the
final listing rule for the taxon that was published in the Federal
Register on October 6, 1998 (63 FR 53596), or the proposed designation
of critical habitat for the taxon published on June 4, 2004 (69 FR
31552).
In the proposed critical habitat designation, we stated that it was
unlikely that Astragalus lentiginosus var. piscinensis was present on a
privately owned parcel in Township 6, South Range 33 East, section 18
and did not propose designating the parcel as critical habitat.
However, we have determined that 8 individuals of the
[[Page 33775]]
listed plant taxon were present on or immediately adjacent to this
parcel in 1992, and 1 individual was present in 2000. For more
information, see the ``Criteria Used to Identify Critical Habitat''
section of this final rule.
Also, after the proposed rule was published, we received several
documents that pertain to the Five Bridges Aggregate Pit that is
operated by the Desert Aggregates company, and these documents are
described in the ``Summary of Changes'' section of this final rule.
Previous Federal Action
On June 4, 2004, we published a proposed rule to designate
approximately 8,490 ac (3,435 ha) of land in Mono and Inyo Counties,
California, as critical habitat for Astragalus lentiginosus var.
piscinensis (69 FR 31552). In the proposed rule, we included a detailed
summary of the previous Federal actions completed prior to publication
of the proposal. The comment period associated with the proposed rule
closed on August 3, 2004. On December 28, 2004, we published a notice
of availability of the draft economic analysis (DEA) for the
designation of critical habitat for A. l. var. piscinensis, and
reopened the comment period for the proposed rule and DEA (69 FR
77703). This second comment period closed on January 27, 2005.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for Astragalus lentiginosus var.
piscinensis in the proposed rule published on June 4, 2004 (69 FR
31552). We also contacted appropriate Federal, State, and local
agencies, one Tribe, scientific organizations, and other interested
parties and invited them to comment on the proposed rule. During the
comment period that opened on June 4, 2004, and closed on August 3,
2004, we received 11 comment letters directly addressing the proposed
critical habitat designation: 5 from peer reviewers, 2 from
environmental groups, 4 from companies or individuals, and none from
local, State, or Federal agencies or Tribes.
During the comment period that opened on December 28, 2004, and
closed on January 27, 2005, we received four comment letters addressing
the proposed critical habitat designation and the DEA. Of these latter
comments, one was from a peer reviewer, one was from an environmental
group, and two were from a company or individual. None were from local,
State, or Federal agencies, or Tribes. For those letters received
during both comment periods, five commenters supported the designation
of critical habitat for A. l. var. piscinensis and one opposed the
designation. Seven entities responded with comments or information, but
did not express support or opposition to the proposed critical habitat
designation. Comments received during both comment periods are
addressed in the following summary and incorporated into the final rule
as appropriate. We did not receive any requests for a public hearing.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited expert opinions from nine knowledgeable
individuals with scientific expertise that included familiarity with
Astragalus lentiginosus var. piscinensis or the habitat the taxon
requires, the geographic region in which the taxon occurs, and
conservation biology principles. We received responses from six peer
reviewers. The peer reviewers generally concurred with our methods and
conclusions and provided additional information, clarifications, and
suggestions to improve the final critical habitat rule.
We reviewed all comments received from the peer reviewers and the
public for substantive issues and new information regarding critical
habitat for the Astragalus lentiginosus var. piscinensis, and
incorporated them into the final rule as appropriate.
Peer Review Comments
Issue 1: Hydrology
Comment 1: One peer reviewer noted that changes in aquifer
conditions have the potential to adversely affect the quality of
habitat upon which the endemic plant and animal species depend in Fish
Slough. Another peer reviewer noted that many of the threats affecting
Astragalus lentiginosus var. piscinensis habitat have also caused the
extinction, or decreases in the abundance and distribution, of several
other species occupying springs in the southwestern United States.
Our Response: We recognize that the threats affecting or
potentially affecting Astragalus lentiginosus var. piscinensis include
many of the same factors that have caused the extinction or reduction
in the distribution and abundance of other species that occupy riparian
and wetland habitats in the southwestern United States. We agree that
changes in hydrologic conditions have the potential to affect the
quality of the alkaline habitat that A. l. var. piscinensis depends
upon. We have, therefore, included a primary constituent element (PCE)
in this final rule that reflects the hydrologic conditions needed by
the species to provide suitable periods of soil moisture and chemistry
for A. l. var. piscinensis germination, growth, reproduction, and
dispersal.
Comment 2: Two peer reviewers expressed concerns that ground water
pumping activities outside, or near the boundary of, the proposed
critical habitat unit may adversely affect the water table or spring
discharge in Fish Slough, and therefore, affect the quality of habitat
in Fish Slough.
Our Response: We agree that ground water pumping activities could
potentially affect the character of wetland or riparian habitat in Fish
Slough. A portion of the Five Bridges Aggregate Pit was included in the
southern portion of the proposed critical habitat unit. The expansion
of the pit will occur in multiple phases and include ground disturbance
and the pumping of ground water (Secor International Incorporated and
Lilburn Corporation 2004). One documented occurrence (California
Natural Diversity Data Base 2004) of Astragalus lentiginosus var.
piscinensis occurs within 1,600 to 4,600 feet (ft) (488 to 1,402 meters
(m)) of phase 1 of the planned expansion project. If the pumping
activities alter the soil moisture and chemistry of the area where A.
l. var. piscinensis occurs, then germination, growth, reproduction, and
dispersal of the species could be adversely affected. Our concern
regarding the pumping activity is highlighted by the fact that meadows
depending on ground water exist in, and immediately adjacent to, phases
1 and 2 of the proposed mine expansion. Past pumping activity has been
identified as a factor affecting the soil moisture and plant
communities in these habitats (Secor International Incorporated and
Lilburn Corporation 2004). We will periodically review monitoring data
to determine if ground water pumping is affecting the local water
table.
Comment 3: One peer reviewer noted it can be difficult to attribute
the current hydrologic conditions in a given area to specific
anthropogenic activities, climate, or other environmental factors
because they may occur during different time frames. Another reviewer
noted it is not possible, at the present time, to specifically identify
the factor(s) that are responsible for the decline in the spring
discharge in the Fish Slough area that has occurred since the early
1920s.
Our Response: We agree that some factors influencing the habitats
or
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species in Fish Slough have occurred on a short-term temporal scale,
while other factors have occurred over a longer period of time. We also
agree it is sometimes difficult to attribute specific activities or
factors to particular changes in the hydrologic conditions at Fish
Slough. We did not attempt to attribute the decline in spring discharge
in Fish Slough to specific activities or factors. We believe a
combination of activities or factors, including anthropogenic
activities, climate, and environmental factors, are likely to affect
the hydrology of Fish Slough and the alkaline habitat occupied by
Astragalus lentiginosus var. piscinensis. We fully support activities
that are designed to, and result in, collection of additional data that
can be used to understand the hydrologic and geologic features that
promote the creation and maintenance of alkaline habitat upon which A.
l. var. piscinensis depends. Such data will create a greater
opportunity to proactively manage the critical habitat unit described
in this final rule, and thereby manage for the conservation of A. l.
var. piscinensis.
Comment 4: One peer reviewer noted that the proposed rule appeared
to have contradictory text when it suggested Astragalus lentiginosus
var. piscinensis was adversely affected by reduced water availability
(that may be associated with ground water pumping activities in areas
adjacent to Fish Slough), and by an overabundance of water (resulting
from storage of water behind a berm near Fish Slough Lake).
Our Response: Activities affecting the amount, distribution, and
character of alkaline habitat that Astragalus lentiginosus var.
piscinensis depends upon have the potential to affect the taxon. Some
land management activities in Fish Slough have created increased levels
of soil moisture in particular areas, and this species cannot tolerate
excessive levels of inundation. In other instances, reductions in the
amount of water discharging from springs have likely reduced the
acreage or affected the chemistry of alkaline habitat that historically
occurred in Fish Slough. Both of these changes have likely affected A.
l. var. piscinensis because there may be less habitat for the taxon to
occupy, or the chemistry of that habitat may no longer be optimum for
it. Astragalus lentiginosus var. piscinensis occupies a relatively
narrow ecological niche, and the taxon can be adversely affected by
either too much or too little water.
Comment 5: One peer reviewer suggested that the findings described
in a report prepared by MHA Environmental Consulting, Inc. (MHA 2001)
should be described in greater detail in the final rule. These findings
suggest that ground water levels and spring discharges could decline in
Fish Slough as a result of particular pumping activities outside the
critical habitat unit.
Our Response: MHA (2001) provided a preliminary hydrologic model
that described the groundwater flow system in the Tri-Valley area. The
Tri-Valley area includes Benton, Hammil, and Chalfant Valleys, which
are located 2 to 30 miles (mi) (5 to 48 kilometers (km)) east and
northeast of Fish Slough. Intensive ground water pumping activities in
the Hammil-Chalfant Valley area have occurred, and water levels have
declined over the last 10 to 20 years, suggesting that pumping
activities are depleting the amount of groundwater underneath the
wells. Because the surface elevation decreases from Benton Valley in
the north to Chalfant Valley in the south, and because Fish Slough is
lower in elevation than all three of these valleys, groundwater tends
to move in a southerly or southwesterly direction toward Fish Slough or
toward Chalfant Valley east of Fish Slough. Therefore, there may be a
potential for water diversion activities in Chalfant and Hammil Valleys
to adversely affect the amount of water that discharges from springs in
Fish Slough (MHA 2001). Alternatively, it may also be possible that
pumping activities in these two valleys affect the hydrostatic pressure
within the local aquifer and thereby influence the water table in Fish
Slough.
Astragalus lentiginosus var. piscinensis occupies alkaline soils
that form as a result of spring discharge in Fish Slough. If
groundwater pumping activities east or northeast of Fish Slough affect
spring discharge or the hydrostatic pressure in Fish Slough, there may
be a potential that the soil moisture or chemistry conditions in
habitat where A. l. var. piscinensis occurs could be altered. If these
changes were to occur, plant reproduction or persistence could be
adversely affected.
Issue 2: Grazing
Comment 6: One peer reviewer stated that controlling livestock
grazing in upland areas is necessary to minimize the trampling of
potential food resources that may be used by native bee species. The
reviewer also stated that grazing in habitat used by bee species should
not occur before, during, or after the period when host plants bloom.
Our Response: We would agree with the peer reviewer that grazing
could affect the habitat used by insect species that pollinate
Astragalus lentiginosus var. piscinensis, but that would depend on the
number of cattle involved. The Los Angeles Department of Water and
Power (LADWP) has issued a lease to one individual that intermittently
turns out a limited number of cattle and horses in Fish Slough on some
of the lands that agency owns. The number of cattle, and length of time
they are authorized to be in Fish Slough, has been reduced in recent
years in an effort to reduce the potential that A. l. var. piscinensis
is trampled or its habitat adversely affected. At the present level of
grazing within the area designated for A. l. var. piscinensis, any
impacts to pollinators would likely be minor. We have also encouraged
LADWP to complete a management plan for the grazing allotment that
would provide specific prescriptions that describe how grazing-related
effects to A. l. var. piscinensis and associated habitat could be
minimized.
Comment 7: One peer reviewer asked if we had used statistical tests
to determine if there was a significant difference in the abundance of
Astragalus lentiginosus var. piscinensis in grazed and ungrazed plots.
Our Response: We have not employed statistical methods to determine
if the abundance of Astragalus lentiginosus var. piscinensis in grazed
and ungrazed plots is significantly different. This type of analysis is
beyond the scope of this rule making in that it does not identify or
evaluate areas to be considered as critical habitat for A. l. var.
piscinensis.
Issue 3: Delineation of the Proposed Unit Boundary
Comment 8: One peer reviewer suggested that the proposed critical
habitat boundary may be too small to ensure the conservation of
Astragalus lentiginosus var. piscinensis because the source areas that
are likely to provide the water that discharges in Fish Slough are
outside the critical habitat unit. Another reviewer felt that
delineating a larger critical habitat unit to include the aquifer
contributing to the springs and near-surface ground water in Fish
Slough was not warranted at this time. This reviewer stated that
insufficient information is available to identify the precise location
of the source(s) of the water that promote the presence of the alkaline
habitat upon which A. l. var. piscinensis depends.
Our Response: We considered delineating a critical habitat unit
boundary that includes the source areas that provide water to Fish
Slough such as: (1) Casa Diablo Mountain area northwest of Fish Slough;
(2) the nearby Tri-Valley east and northeast of Fish Slough; or (3) a
combination of these
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two areas (Bureau of Land Management (BLM) 1984; MHA 2001). We
determined that information on the location of the source(s) of the
water that sustain the alkaline habitat upon which Astragalus
lentiginosus var. piscinensis depends is not available at the present
time. As a result, we did not include the above mentioned areas in the
critical habitat unit. We encourage local land managers and entities
with expertise in hydrology to collect additional data that would more
precisely determine the location of the source(s) of the water that
discharge in Fish Slough and sustain A. l. var. piscinensis habitat. We
believe this information is necessary to proactively manage this listed
plant for its conservation.
Comment 9: One peer reviewer questioned why the area south of the
McNally Canals was included in the proposed critical habitat unit when
the proposed rule stated this area contained little suitable habitat
for Astragalus lentiginosus var. piscinensis. The individual also
recommended that we specifically refer to a particular McNally Canal
(north vs. south) when referring to the drainage canal network.
Our Response: We recognize there are two artificial ditches in the
southern portion of the proposed critical habitat unit, the North and
South McNally Canals, and have provided text in this final rule that
specifically refers by name to one or both of the canals. We have
reviewed recent information that suggests that habitat quality in this
area has been degraded by past pumping and water spreading activities,
grazing, or agricultural activities (Pavlik 1998, 1999; The Twining
Laboratories and ESR, Inc. 2004). We have determined that the area
south of the southern McNally Canal is unoccupied and is not essential
for the conservation of Astragalus lentiginosus var. piscinensis. We
have, therefore, not included the area south of the southern McNally
Canal in the designated critical habitat unit (see Summary of Changes
from the Proposed Rule section).
Even though the mine expansion area, south of the southern McNally
Canal, is not essential to the conservation of the taxon, we note that
ground water pumping in the area where future mining activities are
scheduled to occur is likely to create a cone of depression for ground
water (Secor International Incorporated and Lilburn Corporation 2004).
If such an effect occurs, we are concerned that the pumping may affect
the PCEs (e.g., alkaline soils, plant communities, and hydrologic
conditions) in the portion of the designated critical habitat unit
directly adjacent to the mine expansion area.
Comment 10: One peer reviewer believes our rationale for including
a 3,281 ft (1,000 m) wide upland area around the habitat occupied by
Astragalus lentiginosus var. piscinensis requires additional support
because we based it on a study done in Germany. The reviewer stated
that the study results may not be applicable to Fish Slough because the
two areas have different habitats, climate, and host plant composition.
Our Response: When we delineated the perimeter of the proposed
critical habitat unit, we assessed the significance of the information
collected by Steffan-Dewenter and Tscharntke (2000) in Germany. We were
influenced by their findings that showed that alteration and
fragmentation of habitat used by pollinator species can lead to reduced
levels of plant pollination. After we published the proposed rule in
the Federal Register, another journal article was published that stated
``pollination services provided by native bee communities in California
strongly depended on the proportion of natural upland habitat within 1-
2.5 km of the farm site'' (Kremen et al. 2004). We conclude that
alteration and fragmentation of habitat used by bee species is also
likely to result in reduced levels of pollination in Astragalus
lentiginosus var. piscinensis. This is because a reduction in the
number of pollinators in an area is likely to reduce the number of bees
that could potentially be available to pollinate A. l. var.
piscinensis.
In the proposed rule, we noted that successful reproduction for
Astragalus lentiginosus var. piscinensis requires bee pollination. The
specific bee species that pollinate the plant have not been identified,
but at a minimum, include bumblebees (Bombus sp.) in the family Apidae
(Mazer and Travers 1992). Bumblebees may forage many kilometers from a
colony (Heinrich 1979), and the distance they will fly to forage is not
unique. European honeybees (Aphis mellifer) are also known to have an
ability to forage a similar distance (Beekman and Ratnieks 2000). We
have, therefore, been conservative in defining a 3,281 ft (1,000 m)
wide boundary around the habitat occupied by A. l. var. piscinensis.
The conservation of this upland area in Fish Slough is essential to
ensure that alteration and fragmentation of habitat used by pollinator
species does not occur, so that adequate levels of Astragalus
lentiginosus var. piscinensis pollination and seed formation can
continue. We also note that none of the agencies owning land within the
critical habitat unit have expressed any concern regarding the 3,281 ft
(1,000 m) wide upland area around the alkaline habitat occurring in the
critical habitat unit.
Comment 11: One peer reviewer recommended that the unit boundary be
redrawn to reflect local topographic differences, i.e., expand its
boundary to the west, and narrow it to the east. This recommendation
was based on the assumption that bee pollinators are less likely to fly
up steep slopes, and the watershed to the west of where Astragalus
lentiginosus var. piscinensis occurrences is larger. Therefore, it is
likely to have a greater influence on the surface hydrology that may
affect the plant's alkaline habitat.
Our Response: The final rule designating critical habitat for
Astragalus lentiginosus var. piscinensis has retained a unit boundary
that has a symmetrical shape because we are not aware of data
suggesting that likely A. l. var. piscinensis pollinators would be
unable to fly up the relatively short (280 ft (85 m) high) ridge east
of where the plant occurs. We agree that surface topography is less
steep west of where A. l. var. piscinensis occurs, and there is a
larger topographic area in this direction that could potentially affect
the surface water hydrology of Fish Slough. The available hydrologic
data do not suggest that surface water inflows or human activities
within the 1.5 mi (2.4 km) distance referred to in the peer reviewer's
comment letter affect the character of the alkaline habitat occupied by
the plant species. Therefore, we are not able to identify the benefit
that might be associated with shifting the unit boundary to the west,
and have retained the original configuration of the unit boundary in
the final rule.
Issue 4: Miscellaneous Topics
Comment 12: One peer reviewer suggested that new studies should be
completed to identify the taxonomic identity and habitat requirements
of the insects that pollinate Astragalus lentiginosus var. piscinensis.
Habitat essential to conserve A.l. var. piscinensis could then be
defined more precisely. Another reviewer advocated new studies that
could provide a greater understanding of the hydrology of the Fish
Slough area.
Our Response: We welcome any additional data to characterize the
hydrology that affects Fish Slough and the ecology of the insect
species that pollinate Astragalus lentiginosus var. piscinensis.
However, we cannot delay our decision to allow for the
[[Page 33778]]
development of additional data, and have used the best available
scientific data in our critical habitat designation.
Comment 13: A peer reviewer suggested we should have organized
particular portions of the proposed rule in a different manner than was
presented. The reviewer also suggested we conduct additional
statistical analyses to identify and determine the significance of
particular relationships between species abundance and environmental
factors, or trends in plant numbers. He questioned why we summarized
data on population trends for Astragalus lentiginosus var. piscinensis
in 5-year increments (i.e., 1991-1996 and 1997-2002), and asked if the
overall trend in the available population data was consistent with
trends in particular plots that have been monitored.
Our Response: The format and organization of the proposed rule
followed the procedural guidance for the preparation of rules
established by the Service and the Federal Register. We appreciate the
peer reviewer's suggestions, and will consider his comments as new
rules are developed in the future.
We agree it would be beneficial to conduct additional statistical
analyses to identify and determine the significance of particular
relationships between species abundance and environmental factors, or
trends in plant numbers. These types of analyses are routinely done
during a status review for a listed species but are not commonly done
during a rule making process for critical habitat. In this case, the
additional analysis suggested would not help identify areas for the
critical habitat designation. To provide readers with an indication of
how the abundance of Astragalus lentiginosus var. piscinensis has
changed over time, and because data were available for a 12-year
period, we chose to summarize population trend data for A. l. var.
piscinensis in two time periods of equal duration, i.e., 1991-1996 and
1997-2002.
Comment 14: One peer reviewer suggested that, instead of providing
personal communications between Service staff and other individuals, we
should provide information contained within peer-reviewed journals.
Our Response: We agree with the standard practice of providing
information that is contained within published documents when these are
available. Some of the information described in the proposed rule,
e.g., population survey data that were collected by staff from the BLM
or LADWP, was cited as a personal communication because this
information only exists in tabular form in agency files and does not
exist as a publication or formal report. The Act requires that we use
the best available scientific data, but does not require that we only
use data in published documents. Also, our Policy on Information
Standards Under the Endangered Species Act, published in the Federal
Register on July 1, 1994 (59 FR 34271), section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (P.L. 106-
554; H.R. 5658) and our associated Information Quality Guidelines,
provide criteria, establish procedures, and provide guidance to ensure
that our decisions represent the best scientific and commercial data
available.
Comment 15: Two peer reviewers supported our inclusion of upland
areas outside of, but adjacent to, where Astragalus lentiginosus var.
piscinensis occurs as these areas are likely to be used by insect
species that pollinate it. One peer reviewer suggested that the PCE
involving upland areas be modified to provide a stronger emphasis on
the need to proactively manage pollinator species, surface water
hydrology, and nonnative plant species by including an upland buffer.
Our Response: We agree that the upland areas likely contain the
burrows and cover sites that are used by the insect species that
pollinate Astragalus lentiginosus var. piscinensis, and are essential
for the conservation of this species. Although we agree with the peer
reviewer's suggestion that multiple factors in the upland portion of
the designated critical habitat unit require special management, we did
not designate the upland area as a buffer. The upland area has one or
more of the PCE's for Astragalus lentiginosus var. piscinensis and is
essential to the conservation of the species.
Public Comments
We reviewed all comments received from the public for substantive
issues and new information regarding critical habitat for the
Astragalus lentiginosus var. piscinensis, addressed them in the
following summary, and incorporated them into the final rule as
appropriate.
Issue 1: Biological Justification and Methodology
Comment 16: One commenter disagreed with a suggestion in the
proposed rule that water diversion activities have taken place at the
Five Bridges Aggregate Pit. The commenter instead characterized the
groundwater table as high in this area, and the mine is required to
pump water from the current operating pit, but this water is pumped
into on-site recharge basins. Therefore, the ground water is recharged,
not diverted. The same commenter also inferred that the Service assumed
that mining company staff did the pumping, and the commenter stated
that staff from the LADWP did the pumping.
Our Response: We continue to believe that groundwater in the
vicinity of the mining activities has been diverted because ground
water has been moved from one location to another. Our statement is
based on the fact that water was pumped from sumps that were
constructed near the pits where gravel was mined, and then conveyed to
another location that was several hundred to a few thousand meters from
the location where water was collected. It is possible that the
diverted water is recharged at the point where it is released after it
is diverted.
We do not state in the proposed rule which entity conducted the
water diversion activities that adversely affected riparian vegetation
down-gradient of the mine. We only stated that pumping took place and
riparian vegetation was adversely affected.
Comment 17: One commenter requested that the critical habitat
boundary be delineated to include the entire historic range of
Astragalus lentiginosus var. piscinensis.
Our Response: The critical habitat unit delineated in this final
rule includes all of the known locations that were occupied by
Astragalus lentiginosus var. piscinensis at the time of listing.
Comment 18: One commenter requested we extend the deadline for
submitting comments.
Our Response: Our first comment period was open for 60 days, from
June 4, 2004, until August 3, 2004. We reopened the comment period on
December 28, 2004, for an additional 30 days when we published a notice
of availability of the DEA for the designation of critical habitat for
Astragalus lentiginosus var. piscinensis (69 FR 77703). This gave the
public an opportunity to review and comment on the DEA and proposed
rule concurrently. This second comment period closed on January 27,
2005. Unfortunately, our ability to accept comments and work with
stakeholders regarding the critical habitat designation for A. l. var.
piscinensis is limited by a deadline imposed by a court order.
Comment 19: One commenter noted that the long-term effect of
designating critical habitat was beneficial, particularly because a
large portion of
[[Page 33779]]
the local economy in the Fish Slough area relies on biological
resources and scenery that attracts tourists to the area.
Our Response: We recognize that one of the predominate sources of
income for businesses in the town of Bishop and the Owens Valley area
is derived from outdoor recreational activities and ecotourism. We note
that the protection of Astragalus lentiginosus var. piscinensis and its
habitat is beneficial for a variety of reasons, including the
conservation of biological resources, an environment that people use
and enjoy, and a local growing economy.
Comment 20: A commenter that operates a grazing lease in Fish
Slough suggested that cattle grazing activities are compatible with
stable populations of Astragalus lentiginosus var. piscinensis, based
on the number of plants that were observed in ``zones'' surveyed in
1992 (Novak 1992), and again in 2000.
Our Response: To show how the number of Astragalus lentiginosus
var. piscinensis plants has varied through time, we presented data that
were collected in monitoring plots on LADWP-owned land, as compared to
the number of individuals within particular zones. We believe the plot
data provide a more precise and robust assessment of how plant numbers
have changed over time because the plots are sampled on an annual
basis. These plots are designed to quantify the number of individuals
in a repeatable manner and in well-defined, discrete areas.
When data collected from one grazed plot are compared between 1991-
1996 and 1997-2002, these data suggest that the abundance of Astragalus
lentiginosus var. piscinensis within this plot increased. During this
same period, the number of A. l. var. piscinensis individuals decreased
in two other plots where grazing occurred, and in two plots where
grazing did not occur. We, therefore, believe the plot data do not
provide definitive proof that grazing activities are compatible with
stable populations of A. l. var. piscinensis. Within the zones referred
to in the comment letter, the number of A. l. var. piscinensis
individuals in the ungrazed zones has decreased in three zones and
increased in one zone.
Comment 21: One commenter suggested that the Fish Slough Area of
Critical Environmental Concern (ACEC) should be replaced with an area
that is managed under a habitat conservation plan (HCP).
Our Response: HCPs cannot serve as a viable substitute for an ACEC
because they exist for different reasons and are meant to serve
different functions. An ACEC is a special land use classification that
is designated by the BLM on lands they manage. HCPs, developed within
the context of the Endangered Species Act, are documents that are
completed when a non-Federal entity anticipates that incidental take of
a listed animal species is likely to occur as a result of a project
they propose. Because Astragalus lentiginosus var. piscinensis is a
listed plant taxon, and the LADWP and California Department of Fish and
Game (CDFG) have not determined their activities in Fish Slough are
likely to result in the take of a listed animal, e.g., Owens pupfish
(Cyprinodon radiosus), the development of a HCP is not warranted or
appropriate at this time.
Comment 22: A commenter noted that the proposed rule did not
attempt to summarize all of the demographic data for all of the
monitoring plots that occur on land owned by BLM and LADWP, creating a
bias because some data are presented in the proposed rule and some are
not.
Our Response: Rules in the Federal Register that propose critical
habitat are not intended to serve as a mechanism for reviewing all of
the demographic data that may pertain to a species (e.g., the number of
adult and juveniles that may be present at select locations across a
species' range). We believe such a synthesis is more appropriate in a
document that would evaluate the taxon's status, or that the
demographic data be used to develop strategies that are designed to
provide alternative management scenarios that will benefit the species.
The process for designating critical habitat for listed species focuses
on identifying those habitat-related features that are essential for
the species' conservation, and we used the data that were appropriate
to this task.
Comment 23: One commenter suggests cattle grazing is repeatedly and
wrongfully referred to as a factor that adversely affects Astragalus
lentiginosus var. piscinensis.
Our Response: The proposed rule does not suggest that all cattle
grazing, no matter how light or intense, would adversely affect
Astragalus lentiginosus var. piscinensis. Moderate to intense levels of
livestock grazing have been documented to adversely affect at least one
other Astragalus taxon in southern California (e.g., Astragalus
monoensis (Sugden 1985)), and we believe it is likely that A. l. var.
piscinensis would be adversely affected if moderate to large numbers of
cattle were allowed to graze in Fish Slough. Such adverse effects would
arise if listed plants were eaten by cattle, habitat used by pollinator
species were trampled or crushed, or the amount of habitat that could
be occupied by A. l. var. piscinensis was reduced. We have not
discounted the possibility, however, that light levels of cattle
grazing may be benign.
Comment 24: A commenter suggested that the designation of critical
habitat for Astragalus lentiginosus var. piscinensis implies that we
are disproportionately preoccupied with the management of a single
taxon.
Our Response: Though this critical habitat designation process is
limited to a single taxon, we agree that the management objectives for
Fish Slough should consider all of the plant and animal communities in
this area. We continue to support this general principle as it is
described in the Owens Basin Wetland and Aquatic Species Recovery Plan,
Inyo and Mono Counties, California (Service 1998). The recovery plan
suggests a conservation area management plan for Fish Slough should be
completed. We believe the development of such a plan would maximize the
opportunity to manage all of the resources in Fish Slough in a more
productive manner. Thus far, we have not developed a plan with the BLM
or CDFG due to a lack of funds.
Comment 25: A commenter noted that the proposed rule emphasized the
need to ``ensure an adequate supply of pollinators.'' They asked how
many pollinators are required to sustain Astragalus lentiginosus var.
piscinensis, what the distribution of these insects needed to be, and
what the requirements of these insects were.
Our Response: Quantitative data that specifically pertain to the
items listed by the commenter are not available for the species that
pollinate Astragalus lentiginosus var. piscinensis. Such data are
rarely available, and we have used the best available scientific data
in our critical habitat designation. We believe the references cited in
the rules proposing and designating critical habitat for A. l. var.
piscinensis are directly applicable to the taxon and the needs of its
pollinators, and provide a solid foundation for identifying the
geographic boundary and PCEs that relate to the critical habitat unit.
Comment 26: A commenter suggested that additional information was
needed to more effectively manage Astragalus lentiginosus var.
piscinensis and its habitat to understand how herbivory by native
animals and water tables affected the taxon. They also thought it was
important to identify the factors that caused the mortality, or
affected the recruitment of, juvenile A. l. var. piscinensis
individuals.
Our Response: We agree that acquisition of such data would be
extremely useful, and improve the
[[Page 33780]]
ability of land managers to conserve the listed plant taxon. We
believe, however, that processes that historically occurred, e.g.,
water table fluctuations that may result from earthquakes, or herbivory
by native animals, are normal and should continue, and that management
of the Fish Slough area should focus on the restoration of natural
ecosystem processes and functions.
Issue 2: Legal and Procedural
Comment 27: A commenter challenged statements in the proposed rule
that the designation of critical habitat is of little additional value
for most listed species.
Our Response: Although the designation of critical habitat does
not, in and of itself, restrict human activities within an area or
mandate any specific management or conservation actions, it does help
focus Federal, Tribal, State, and private conservation and management
efforts in such areas. A critical habitat designation benefits species
conservation primarily by identifying important areas and describing
the features within those areas that are essential to conservation of
the species, thereby alerting public and private entities to the areas'
importance. In addition, designating critical habitat may also provide
some educational or informational benefits.
Issue 3: Economic Issues
Comment 28: One commenter noted that many of the conservation
efforts quantified in the DEA benefit multiple species, as well as
unique alkaline meadows and significant scenic and cultural values.
They stated it is not appropriate to allocate the total cost of
conserving all of these biological resources to Astragalus lentiginosus
var. piscinensis. Costs of consultations and conservation measures
should be prorated by species that benefit from the critical habitat
designation and other conservation actions.
Our Response: To the extent possible, the economic analysis
distinguishes costs related specifically to Astragalus lentiginosus
var. piscinensis conservation where multiple species are subject of a
single conservation effort or section 7 consultation. In the case that
another species clearly drives a project modification or conservation
effort, the associated costs are appropriately not attributed to A. l.
var. piscinensis.
In the case of administrative consultation costs, the DEA applies a
standard cost model used to estimate a range of administrative costs of
consultation (see Exhibit 4-1 in the DEA). These costs are considered
representative of the potential range of costs typically experienced
for a consultation regarding a single species. That is, the cost model
assumes that consultations involving more than one species typically
involve higher administrative costs. Accordingly, although
consultations described in the DEA may involve multiple species, the
administrative costs as estimated by applying this cost model are
considered to be predictive of those costs due specifically to the
designation of critical habitat for Astragalus lentiginosus var.
piscinensis.
Comment 29: One commenter felt that including the cost of managing
the Fish Slough ACEC in the DEA overstates costs associated with
critical habitat designation for Astragalus lentiginosus var.
piscinensis. Every direct cost of managing the ACEC, except the
propagation of A. l. var. piscinensis, benefits a number of species and
should therefore not be considered critical habitat designation costs.
Our Response: As mentioned above, for each consultation and
conservation effort, the DEA attempts to identify costs specifically
related to Astragalus lentiginosus var. piscinensis. In some instances,
however, it is not possible to determine the relative contribution of
the multiple causative factors to the implementation of a conservation
effort. For example, management of the Fish Slough ACEC by the BLM,
including posting signage to mark the presence of sensitive species,
and prescribed burns to control vegetation, is undertaken to benefit
all Fish Slough resources, including A. l. var. piscinensis. In these
instances, the DEA presents the full cost of the conservation effort.
Importantly, however, the DEA only includes the costs of these efforts
within the proposed critical habitat designation for A. l. var.
piscinensis. That is, it is assumed that ACEC management efforts
outside of the proposed critical habitat designation are not undertaken
to benefit A. l. var. piscinensis, and are therefore not included in
the DEA.
Comment 30: Another commenter stated that the DEA should include a
rigorous analysis of the continued status of the Fish Slough as an
ACEC. This commenter stated that the Astragalus lentiginosus var.
piscinensis critical habitat designation constitutes a shift to a
single species management objective rather than a multi-species
management plan, and the designation will only increase the
administrative and management burden of the ACEC area.
Our Response: The DEA quantifies economic effects of the critical
habitat designation for Astragalus lentiginosus var. piscinensis, along
with the economic effects of protective measures taken as a result of
the listing of A. l. var. piscinensis or other Federal, State, and
local laws that aid habitat conservation in the areas proposed for
critical habitat. This information is intended to assist the Secretary
in determining whether the benefits of excluding particular areas from
the designation outweigh the benefits of including those areas. It is,
therefore, beyond the scope of the DEA to include an analysis of the
benefit of preserving the Fish Slough region as an ACEC managed by the
BLM.
Comment 31: A commenter stated that a cumulative economic analysis
should be developed to reflect the potential that critical habitat
could be proposed or designated for the other 22 species identified in
the Owens Basin recovery plan; i.e., the DEA should include evaluation
of cumulative impacts of additional designations.
Our Response: The Act does not require us to conduct assessments to
quantify the cumulative cost of designating critical habitat in one
general area. Also, we do not believe it is reasonable to calculate the
potential cost of designating critical habitat for 22 species
identified in the recovery plan because almost all of these species
have not been listed as threatened or endangered, and we only designate
critical habitat for listed species. Furthermore, for the three species
that are listed and covered under the Owens Basin recovery plan, only
one other species besides Astragalus lentiginosus var. piscinensis has
designated critical habitat, i.e., the Owens tui chub (Gila bicolor
snyderi) (August 5, 1985, 50 FR 31592), and there are no current plans
to propose critical habitat for the Owens pupfish (Cyprinodon radiosus)
as it was listed in 1967, which is before critical habitat amendments
were added to the Act (August 5, 1985, 50 FR 31592). The southwestern
willow flycatcher (Empidonax traillii extimus) does occur in Owens
Valley, and critical habitat for the taxon has been proposed (October
12, 2004, 69 FR 60705); an economic analysis will be prepared in
conjunction with this listing process, and an estimate of the cost
associated with the proposed critical habitat will be prepared. Also,
we have already considered the costs of conducting other management
activities; see Comment 29.
Comment 32: Another commenter states the DEA failed to provide a
balanced assessment of economic benefits and costs in relation to the
proposed critical habitat designation.
Our Response: Section 4(b)(2) of the Act requires the Secretary to
designate critical habitat based on the best scientific data available,
after taking into
[[Page 33781]]
consideration the economic impact, and any other relevant impact, of
specifying any particular area as critical habitat. Our approach for
estimating economic impacts includes both economic efficiency and
distributional effects. The measurement of economic efficiency is based
on the concept of opportunity costs, which are the value of goods and
services foregone in order to comply with the effects of the
designation (e.g., lost economic opportunity associated with
restrictions on land use). Where data are available, the economic
analyses do attempt to measure the net economic impact. For example, if
the fencing of Astragalus lentiginosus var. piscinensis habitat to
restrict motor vehicles results in an increase in the number of
individuals visiting the site for wildlife viewing, then the analysis
would attempt to net out the positive, offsetting economic impacts
associated with their visits (e.g., impacts that would be associated
with an increase in tourism spending). However, while this scenario
remains a possibility, no data was found that would allow for the
measurement of such an impact, nor was such information submitted
during the public comment period.
Most of the other benefit categories submitted by the commenter
reflect broader social values, which are not the same as economic
impacts. While the Secretary must consider economic and other relevant
impacts as part of the final decision-making process under section
4(b)(2) of the Act, the Act explicitly states that it is the
government's policy to conserve all threatened and endangered species
and the ecosystems upon which they depend. Thus, we believe that
explicit consideration of broader social values for the species and its
habitat, beyond the more traditionally defined economic impacts, is not
necessary as Congress has already clarified the social importance. As a
practical matter, we note the difficulty in being able to develop
credible estimates of such values as they are not readily observed
through typical market transactions. In sum, we believe that society
places the utmost value on conserving any and all threatened and
endangered species and the habitats upon which they depend, and thus
the required considerations under section 4(b)(2) of the Act occur in
light of this basic premise.
Comment 33: One commenter stated that indirect costs associated
with reductions in grazing opportunity should not be included in the
DEA. The reductions in grazing, along with installation and maintenance
of the grazing exclosure in Fish Slough, have already been instituted
and are therefore not affected by critical habitat designation. The
commenter further notes that these conservation efforts are independent
landowner decisions and not a mandate under the Act and should,
therefore, not be considered in the DEA. The cost of this conservation
effort should not be included as a post-designation cost.
Our Response: The DEA assesses not only the direct economic effects
of the critical habitat designation, but also the economic effects of
protective measures taken as a result of the listing of Astragalus
lentiginosus var. piscinensis or other Federal, State, and local laws
that also aid habitat conservation in the areas proposed for critical
habitat designation. The reductions in grazing were a result of
conversations regarding management of the Fish Slough between the
lessee of the grazing lands, LADWP (the landowner), and the other
managing agencies of the Fish Slough (BLM and CDFG). This reduction in
grazing activity was undertaken to benefit the multiple resources of
the Fish Slough, including A. l. var. piscinensis, and is therefore
included in the DEA.
Comment 34: The DEA seems to imply that the LADWP will bear all the
costs of maintaining the 80-ac (32-ha) grazing exclosure. The lessee
has been responsible for much of the costs of maintenance, materials,
and labor. The following components should be added to predesignation
impacts: Fencing of the LADWP lease in cooperation with the lessee,
with materials furnished by LADWP; and the lessee's cost of the
installment of approximately 3.5 mi (5.6 km) of perimeter and cross
fencing between 1990 and 1994 for better livestock control and
vegetation management.
Our Response: As detailed in sections 4.1.2 and 4.2.2 of the DEA,
impacts to livestock grazing activities are expected to be incurred by
both the LADWP for fencing and fence maintenance, and the lessee for
precluding particular acres of lands from grazing activities. In the
case that the lessee provides the labor to maintain the exclosure,
costs to the lessee associated with Astragalus lentiginosus var.
piscinensis conservation efforts is underestimated. The DEA, however,
only quantifies impacts of A. l. var. piscinensis conservation efforts
occurring from the time of the species' listing in 1998 through 20
years from the final critical habitat designation in 2005. Impacts
incurred by the lessee between 1990 and 1994 are, therefore, not
included in the DEA.
Comment 35: A commenter stated that, following construction of the
grazing exclosure, the lessee found it necessary to develop a whole
ranch vegetation management plan to match vegetation requirements with
the health requirements of the livestock. This effort cost $15,000 to
$20,000 in consultant fees and meetings. In addition, the lessee had to
lease additional facilities to ship, receive, and handle livestock
during the period when Astragalus lentiginosus var. piscinensis
flowers. These increased production costs for the ranch operation
should also be included in the analysis.
Our Response: Lone Tree Cattle Company was contacted following the
public comment period for the DEA to discuss expected increased
production costs as a result of Astragalus lentiginosus var.
piscinensis conservation efforts on its grazing lease. As a result of
this communication, the revised economic analysis includes additional
economic impacts to Lone Tree Cattle Company. An additional $15,000 to
$20,000 is added to the assessment of pre-designation costs to account
for the development of a vegetation management plan. The costs of
implementing the vegetation management are speculative at this time as
the plan has not yet been adopted, and BLM review of the plan is the
subject of a future hearing by the Department of the Interior (DOI)'s
Office of Hearing and Appeals. Additionally, the grazing lessee
acquired an additional lease specifically to avoid grazing on the Fish
Slough ACEC during periods when A. l. var. piscinensis blooms. This
resulted in increased costs to the grazing operation of $7,600 to
$11,000 for purchase of materials for fencing and corral construction,
and $500 per year for the cost of the additional lease. Potential labor
costs of construction and maintenance of fencing and corrals on the new
lease is unknown, but are also expected to increase costs to the
lessee's grazing operation (Ken Zimmerman, Lone Tree Cattle Company,
pers. comm. 2005).
Comment 36: Section 3.2.2 of the DEA should caveat that
restrictions on grazing in Fish Slough are pending a hearing with the
DOI, Office of Hearing and Appeals, to address the appropriateness of
the increased permit restrictions. Further, the lessee is currently
grazing 60 head of cattle, not 40, as stated in the DEA.
Our Response: The revised economic analysis will reflect the
information in the comment letter. The DEA estimates the value per acre
of lost grazing land based on the economically viable utilization of
these lands. That is, the number of head of cattle currently grazed is
divided by the total acreage
[[Page 33782]]
available for grazing and multiplied by the value per head of cattle to
determine the value per acre of grazing land. This is then applied to
the 80 ac (32 ha) of land lost to grazing due to the construction of
the cattle exclosure to protect Astragalus lentiginosus var.
piscinensis. The DEA incorrectly stated that the lessee grazed 40 head
instead of the current 60 head. This changes the economically viable
number of head per acre from 0.02 to 0.03. Therefore, the lost head per
year on the 80 ac (32 ha) of land lost to grazing increases from 1.6 to
2.4 head. Applying the value per head of cattle of $1,114, as discussed
in section 4.1.2 of the DEA, this correction results in a change of
annual losses to the lessee of $2,760, as opposed to the $1,780
previously reported in the DEA.
Comment 37: The Five Bridges Aggregate Pit is located in the
southern portion of Fish Slough and is subject to active mining
operations. Plans to expand the pit have resulted in a requirement to
conduct groundwater monitoring activities. The monitoring activities
will be completed, regardless of the proximity of the pit to the
critical habitat designation. A commenter suggested that because the
groundwater monitoring will benefit a number of species, the costs of
the monitoring activities should be accordingly prorated. Additionally,
a reduction in groundwater levels will affect the production of
downstream mining activities and downstream water extraction; costs
should also be prorated to account for these human benefits.
Our Response: Our major concern regarding the potential affect of
the mining activity and a proposed expansion of the pit on Astragalus
lentiginosus var. piscinensis was the affect of future mining on
groundwater levels within Fish Slough. Establishment of a groundwater
monitoring system using existing and new wells was undertaken, in part,
to ensure sensitive species, including A. l. var. piscinensis, would
not be subject to fluctuating groundwater levels.
The DEA acknowledges that multiple factors contribute to the need
for mitigation of groundwater effects of the mine operations, including
California Environmental Quality Act (CEQA) compliance, California
Surface Mining and Reclamation Act compliance, and general
consideration of the Fish Slough ACEC. The DEA considers not only the
direct economic effects of the critical habitat designation, but also
the economic effects of protective measures taken as a result of the
listing of Astragalus lentiginosus var. piscinensis or other Federal,
State, and local laws that aid habitat conservation in the areas
proposed for critical habitat designation. The costs of groundwater
monitoring are accordingly included in the DEA, with the recognition
that this conservation effort would likely be undertaken absent
consideration for the A. l. var. piscinensis and its habitat. Of note,
however, the final rule excludes from critical habitat designation the
area of the Five Bridges Aggregate Pit proposed for designation because
this area is not occupied by A. l. var. piscinensis and is not
considered essential to the conservation of the taxon.
Comment 38: One commenter requested that the data used for
calculation of costs should be included in the DEA so that the methods
can be evaluated.
Our Response: The source of each economic impact as described in
the DEA is cited within the text or as a footnote to the text. In
general, costs of conservation efforts were gathered by using budgetary
information from participating agencies, by consulting market data, and
by extrapolating from the costs of similar past activities. Standard
methods for inflating past costs and discounting future costs were
employed in order to compare economic impacts occurring in different
time periods.
Comment 39: A commenter stated that the use of the term ``volunteer
routes'' in the DEA is inappropriate, and highlighted that these routes
are illegal and are an increasing problem in the area. The comment
offered that these routes should be identified as ``illegal routes''
throughout the DEA.
Our Response: The BLM uses the term ``volunteer routes'' to
describe those routes created through the use of illegal motorized off-
highway vehicles (OHV) off of designated routes. The DEA acknowledges
the illegality of this activity but uses the term for consistency in
describing BLM management of the region.
Comment 40: One commenter stated that the DEA should highlight that
the LADWP is a municipality with fee title to the lands in which
agricultural and ranch leases are administered. This should be made
clear, as the public often believes LADWP lands to be public lands.
Our Response: The revised economic analysis will clarify this
point.
Comment 41: A commenter stated that he spent a number of hours
searching for accreditations and references of Industrial Economics,
Inc., the group that prepared the DEA for the Service, but was unable
to establish its credentials.
Our Response: Industrial Economics, Incorporated (IEc), founded in
1981, is an 80-person economic and policy consultancy that provides
analytic services to government decision-makers and regulators, trade
associations, private entities, and international organizations. IEc
has prepared economic analyses of critical habitat designations for
more than 60 species. Particular to this analysis, IEc has expertise in
analyses of the regional and national economic effects of environmental
regulation, including significant experience analyzing issues related
to water use and management, grazing, and wildlife management in the
western United States.
Comment 42: One commenter stated it is not appropriate to include
``pre-designation'' cost estimates as part of the economic analysis
associated with the critical habitat designation, because these costs
are associated with the listing of Astragalus lentiginosus var.
piscinensis, and not with the critical habitat designation process for
the species.
Our Response: The primary purpose of the economic analysis is to
estimate the potential economic impacts associated with the designation
of critical habitat for Astragalus lentiginosus var. piscinensis. The
Act defines critical habitat to mean those specific areas that are
essential to the conservation of the species, and defines conservation
to mean the use of all methods and procedures necessary to bring any
endangered species or threatened species to the point at which the
measures of the Act are no longer necessary. Thus, we interpret that
the economic analysis should include all of the economic impacts
associated with the conservation of the species, which may include some
of the effects associated with listing because the species was listed
prior to the proposed designation of critical habitat. We note that the
Act generally requires critical habitat to be designated at the time of
listing, and had we conducted an economic analysis at that time, the
impacts associated with listing would not be readily distinguishable
from those associated with critical habitat designation.
The DEA discusses other relevant regulations and protection efforts
for other listed species that included Astragalus lentiginosus var.
piscinensis and its habitat. In general, the analysis errs
conservatively in order to make certain that economic effects have not
been missed. It treats as ``co-extensive'' other Federal and State
requirements that may result in overlapping protection measures (e.g.,
CEQA) for A. l. var. piscinensis. In some cases, however, non-habitat-
related regulations
[[Page 33783]]
will limit land uses activities within critical habitat in ways that
will directly or indirectly benefit A. l. var. piscinensis or its
habitat (e.g., local zoning ordinances). These impacts were not
considered to be ``co-extensive'' with A. l. var. piscinensis listing
or designation for two reasons. First, such impacts would occur even if
A. l. var. piscinensis was not listed. Second, we must be able to
differentiate economic impacts solely associated with the conservation
of A. l. var. piscinensis and its habitat in order to understand
whether the benefit of excluding any particular area from A. l. var.
piscinensis critical habitat outweighs the benefit of including the
area.
Comment 43: A commenter requested that the DEA be reissued and
amended to include cost estimates that reflect the economic value of
biological attributes that may be beneficial, i.e., nitrogen fixation
services. The commenter stated that while it may not be possible to
calculate a precise economic value for ecosystem functions such as
nitrogen fixation, ecosystem functions and services should at least be
mentioned as a benefit of species conservation.
Our Response: We recognize that the various functions of an
ecosystem have value, but we are unable to put an economic value on
such biological attributes. We believe that the benefits of proposed
critical habitat are best expressed in biological terms that can be
weighed against the expected costs impacts of the rulemaking. We must
remember that the critical habitat economic analysis helps the
Secretary decide whether to exclude areas, and whether the benefits of
exclusion outweigh the benefits of inclusion. So, we are looking at the
burden on the public of the regulation, and whether any areas have a
disproportionate burden. We balance these burdens against the benefits
of including that area--including the benefits of the area to the
species and the benefits of the species' existence and conservation. We
do this in the section 4(b)(2) discussion in our rules.
Comments From States
Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for her failure to adopt
regulation consistent with the agency's comments or petition.'' We did
not receive any comments from CDFG or any other State agency.
Therefore, we have not developed a written justification that pertains
to section 4(i) of the Act.
Summary of Changes From the Proposed Rule
One area that was included in the proposed rule for Astragalus
lentiginosus var. piscinensis was not included in the final critical
habitat designation. This area consists of the 483 ac (195 ha) area
south of the southern McNally Canal; this land is not privately owned,
and instead belongs to the LADWP. After we published the proposed rule,
we acquired a variety of documents that pertain to the Five Bridges
Aggregate Pit (mistakenly called the ``Desert Aggregate Mine'' in the
proposed rule), which is operated by the Desert Aggregates company in
the 483 ac (195 ha) parcel. The County of Inyo issued a Draft and Final
Environmental Impact Report in April and July, 2004, respectively, in
response to a proposal by Desert Aggregates to expand mining operations
(Secor International Incorporated and Lilburn Corporation 2004; Lilburn
Corporation 2004). In 2004, the County of Inyo issued a conditional use
permit that authorizes various activities associated with the mine
expansion. The expansion of the mine will include new ground-disturbing
activities in areas that have not been previously mined, and dewatering
activities that facilitate extraction of sand and gravel deposits
(Secor International Incorporated and Lilburn Corporation 2004).
Dewatering activities at the mine historically have been done by
constructing a perimeter ditch adjacent to a pit to be excavated,
constructing a sump to collect water from the perimeter ditch, and
pumping groundwater from the ditch or sump as the local water table
intersected the ditch or sump. In the past, the water pumped from the
sump was discharged into a ditch that is immediately north of, and
parallel to, the Owens River. Desert Aggregates estimates that ground
water extraction rates during previous mining activities ranged from
approximately 80,000 to 500,000 gallons per day (302,832 to 1,892,705
liters per day) (Secor International Incorporated and Lilburn
Corporation 2004). Future dewatering activities at the mine will be
similar to those done in the past, except that water pumped from sumps
will be directed to recharge basins that will be constructed during
different phases of the mine expansion project. The recharge basins
will be located at various locations on the mine property.
Habitat surveys that were carried out in conjunction with the
aforementioned environmental impact reports provide documentation on
the character of habitat within the 483-ac (195-ha) parcel south of the
southern McNally Canal. Future mining activities within the parcel are
likely to result in the elimination of up to 48-ac (19-ha) of alkaline
meadow habitat (Secor International Incorporated and Lilburn
Corporation 2004). The habitat surveys indicate that Astragalus
lentiginosus var. piscinensis does not occur in this alkaline meadow
habitat, these meadows are drier than other meadows that are occupied
by A. l. var. piscinensis, and habitat quality within the remaining
portion of the 483-ac (195-ha) parcel has been degraded by historical
pumping and water spreading practices, livestock grazing, or
agricultural activities (Pavlik 1998, 1999; The Twining Laboratories
and ESR Inc. 2004).
The 483-ac (195-ha) parcel south of the southern McNally Canal
lacks three of the four PCEs that are used to identify critical
habitat, e.g., the arid nature of the soils throughout the parcel
suggests the groundwater table is more than 19 to 60 in (48 to 152 cm)
below the land surface (PCE 1), the plant associations that co-occur
with Astragalus lentiginosus var. piscinensis are absent (PCE 2), and
the available documentation suggest that the hydrologic conditions that
provide suitable periods of soil moisture and chemistry for A. l. var.
piscinensis germination, growth, reproduction, and dispersal do not
exist (PCE 4). Astragalus lentiginosus var. piscinensis does not occupy
the 483-ac (195-ha) parcel, and the habitat in this area is highly
degraded by a number of previous land management activities. These
factors, in combination, have led us to conclude that the 483-ac (195-
ha) parcel south of the southern McNally Canal is not essential to the
conservation of A. l. var. piscinensis, and it is therefore not
included in this final critical habitat designation.
Critical Habitat
Critical habitat is defined in section 3 of the Act 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
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listing under the Act is no longer necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 requires consultation on
Federal actions that are likely to result in the destruction or adverse
modification of critical habitat. The designation of critical habitat
does not affect land ownership or establish a refuge, wilderness,
reserve, preserve, or other conservation area. Such designation does
not allow government or public access to private lands.
To be included in a critical habitat designation, the habitat
within the area occupied by the species must first have features that
are ``essential to the conservation of the species.'' Critical habitat
designations identify, to the extent known and using the best
scientific and commercial data available, habitat areas that provide
essential life cycle needs of the species (i.e., areas on which are
found the primary constituent elements (PCEs), as defined at 50 CFR
424.12(b)).
Occupied habitat may be included in critical habitat only if the
essential features thereon may require special management or
protection. Thus, we do not include areas where existing management is
sufficient to conserve the species. As discussed below, such areas may
also be excluded from critical habitat pursuant to section 4(b)(2).
Our regulations state that, ``The Secretary shall designate as
critical habitat areas outside the geographical area presently occupied
by a species only when a designation limited to its present range would
be inadequate to ensure the conservation of the species'' (50 CFR
424.12(e)). Accordingly, when the best available scientific and
commercial data do not demonstrate that the conservation needs of the
species so require, we will not designate critical habitat in areas
outside the geographic area occupied by the species.
Our Policy on Information Standards Under the Endangered Species
Act, published in the Federal Register on July 1, 1994 (59 FR 34271),
and section 515 of the Treasury and General Government Appropriations
Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and our
associated Information Quality Guidelines, provide criteria, establish
procedures, and provide guidance to ensure that our decisions represent
the best scientific and commercial data available. They require Service
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 is generally the listing
package for the species. Additional information sources include the
recovery plan for the species, articles in peer-reviewed journals,
conservation plans developed by States and counties, scientific status
surveys and studies, biological assessments, or other unpublished
materials and expert opinion or personal knowledge. All information is
used in accordance with the provisions of section 515 of the Treasury
and General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658) and our associated Information Quality Guidelines.
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 conservation 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 the conservation
of the species.
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 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, HCPs, or other species
conservation planning efforts if new information available to these
planning efforts calls for a different outcome.
Methods
As required by section 4(b)(2) of the Act, we used the best
scientific and commercial information available in determining areas
that are essential to the conservation of Astragalus lentiginosus var.
piscinensis. This included information from our own documents on this
plant and related taxa, and documentation provided by staff from BLM
and LADWP. We considered information contained within BLM (1984); Odion
et al. (1991); Ferren (1991a); Mazer and Travers (1992); Danskin
(1998); and MHA (2001), in addition to other peer-reviewed journal
articles, book excerpts, and unpublished biological documents regarding
A. l. var. piscinensis, similar species, and more generalized issues of
conservation biology. We also conducted two site visits to Fish Slough.
We met and routinely corresponded with staff from the BLM, LADWP, and
CDFG to solicit their views on various management aspects involving A.
l. var. piscinensis. We also participated in several discussions with
botanical and hydrologic experts familiar with Fish Slough, and factors
that are likely to affect the habitat that A. l. var. piscinensis
occupies.
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 are required to base critical habitat determinations on the
best scientific and commercial data available and to consider those
physical and biological features (PCEs) 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, and rearing (or development) of offspring; and habitats
that are protected from disturbance or are representative of the
historic geographical and ecological distributions of a species.
All areas designated as critical habitat for Astragalus
lentiginosus var. piscinensis are within the species' historical range
and contain one or more of the biological and physical features (PCEs)
identified as essential for the conservation of the species. The PCEs
essential to the conservation of A. l. var. piscinensis habitat are
based on specific components that are described below.
Space for Individual and Population Growth and for Normal Behavior
The alkaline flats where Astragalus lentiginosus var. piscinensis
occurs are typically dominated by a Spartina--Sporobolis (cordgrass--
dropseed) plant association. Astragalus lentiginosus var. piscinensis
may also occur where a
[[Page 33785]]
sparse amount of Chrysothamnus albidus (rabbit-brush) exists in the
transition zone between Spartina-Sporobolis and Chrysothamnus albidus-
Distichlis (rabbit-brush-saltgrass) plant associations. Sawyer and
Keeler-Wolf (1995) classify the alkaline habitats where A. l. var.
piscinensis occurs as a cordgrass series or saltgrass series.
Astragalus lentiginosus var. piscinensis is frequently sympatric with
Ivesia kingii (alkali ivesia). The higher elevation areas where A. l.
var. piscinensis is absent consist of dry shadscale scrub communities
that are dominated by various species of Atriplex spp. (saltbush).
Food, Water, Air, Light, Minerals or Other Nutritional or Physiological
Requirements
The presence of water is essential to the development and
maintenance of alkaline soils and habitat upon which Astragalus
lentiginosus var. piscinensis depends. The alkaline soils in Fish
Slough where alkali flat, alkali scrub, and meadow habitats occur are
generally classified as aquatic torriorthents-aquent complex with 0 to
2 percent slope. These alkaline soils develop as mineral-rich, shallow
ground water rises under capillary action to the surface by the high
evaporation rates which prevail in the Fish Slough area. As this water
evaporates at the soil surface, its solute load precipitates, creating
a veneer of white salts and minerals. The alkaline habitat that A. l.
var. piscinensis occupies is likely to have a water table that
fluctuates between 19 to 60 inches (in) (48 to 152 centimeters (cm))
below the land surface (Odion et al. 1991). In areas where water tables
are more than 6.6 ft (2.0 m) deep, capillary action is insufficient to
promote and maintain the development of alkaline soils (Odion et al.
1991). A comparison of the distribution of alkaline habitat that exists
in Fish Slough today with aerial photographs taken in 1950 suggests the
geographic extent of alkaline habitat in Fish Slough has decreased over
time (Anne Halford, BLM, pers. comm. 2004).
Between May 1999 and October 2001, a variety of in situ and
experimental studies were conducted to evaluate the relationship
between photosynthetic rates, growth rates, fecundity, and survivorship
of Astragalus lentiginosus var. piscinensis as depth to a water table
varied (Murray and Sala 2003). Data from these studies suggest that
elevated water tables are likely to adversely affect these variables if
local water tables are less than 13.8 to 15.7 in (35 to 40 cm) below
the land surface. Therefore, water tables that rise too close to the
land surface and the root zone of A. l. var. piscinensis may be
detrimental to individual plants that are subjected to saturated soils
for a prolonged period of time.
Fish Slough is a wetland in an otherwise arid landscape. The
average annual rainfall in the town of Bishop is 5.0 in (12.7 cm). The
average annual evapo-transpiration rates in alkaline meadows or
alkaline scrub habitats in the greater Owens Valley area, which are
most similar to the habitat type occupied by Astragalus lentiginosus
var. piscinensis, range between 18.5 to 40.5 in (47.0 to 102.9 cm) and
15.2 to 23.6 in (38.6 to 59.9 cm), respectively (Danskin 1998). Because
the low annual rainfall and high annual evapo-transpiration rates in
the Bishop area create an arid environment, it is essential that a
substantial and sustained amount of surface and groundwater exists to
maintain the wetland and riparian habitats that are present in Fish
Slough.
The sources of water that discharge from springs in Fish Slough
have not yet been conclusively identified. Available data indicate that
Fish Slough water is derived from the Casa Diablo Mountain area (BLM
1984; MHA 2001), the Tri-Valley area, or a combination of the two areas
(MHA 2001). The Casa Diablo Mountain area reaches a maximum elevation
of 7,913 ft (2,412 m) and is located 9.5 mi (15.3 km) northwest of Fish
Slough. The area between Fish Slough and Casa Diablo Mountain is
locally referred to as the Volcanic Tableland. The geology of the
Volcanic Tableland predominantly consists of the Bishop Tuff, which has
a welded ash and tuff surface veneer. Underneath the surface veneer, a
thicker, more permeable layer is present in the Volcanic Tableland. The
lower unit of the tuff is extensively fractured and faulted, and some
areas are more permeable than windblown sand (Department of Water
Resources 1964). These fractures act as conduits that convey
groundwater from higher elevation areas with greater levels of
precipitation to the lower elevation Fish Slough area where low amounts
of precipitation predominate.
The Tri-Valley area is bounded on the east by the White Mountains,
which reach an elevation of up to 14,245 ft (4,342 m), and to the west
by a ridge that separates it from Fish Slough. This ridge is less than
280 ft (85 m) higher than the valley floor. The high elevation of the
White Mountains promotes the precipitation deposition. This water then
percolates into alluvial fans at the base of the mountains, and
ultimately enters the coarse alluvium that is present on the floors of
Benton, Hammil, and Chalfant Valleys. Because the surface elevation
decreases from Benton Valley in the north to Chalfant Valley in the
south, and because Fish Slough is lower in elevation than all three of
these valleys, groundwater tends to move in a southerly or
southwesterly direction toward Fish Slough or toward Chalfant Valley
east of Fish Slough. A number of fault lines are present in the Fish
Slough and Volcanic Tableland area (MHA 2001), and these features
likely affect the presence, distribution, and volume of groundwater
present in the local area (Andy Zdon, TEAM Engineering and Management,
Inc., pers. comm. 2004).
Distribution of many alkaline-tolerant plant species is largely
determined by a combination of environmental factors, predominantly
soil moisture and salinity. These two factors in combination may affect
the physiology of adult and immature plants, seed germination, and
seedling survival. Mazer and Travers (1992) suggest that seed
germination and successful establishment of Astragalus lentiginosus
var. piscinensis seedlings are infrequent events, and that sufficient
rainfall is necessary to promote seed germination and survivorship of
young plants. The suite of environmental factors that determine where
A.l. var. piscinensis occurs is also likely to determine the
composition of the broader plant community of which A.l. var.
piscinensis is a part. Changes in soil moisture and salinity are likely
to influence not only the abundance and presence of A.l. var.
piscinensis but also to affect the persistence and character of the
Spartina-Sporobolis plant association in which A.l. var. piscinensis
occurs.
Sites for Breeding, Reproduction, and Rearing (or Development) of
Offspring
Mazer and Travers (1992), in examining the pollination ecology of
Astragalus lentiginosus var. piscinensis, found that A.l. var.
piscinensis is dependent on insects for flower pollination and
fertilization, and the taxon is not capable of producing fruits in the
absence of pollinators. Thus, the presence of pollinator populations is
essential to the conservation of the species. Bumblebees in the family
Apidae were observed to pollinate A.l. var. piscinensis flowers on
three occasions. Bees in the family Megachilidae are also believed to
be important pollinator insects for A. brauntonii (Fotheringham and
Keeley 1998), and various bee taxa in this family may occur in and
adjacent to Fish Slough. Unless a specific endemic
[[Page 33786]]
bee species is responsible for flower pollination, it is possible that
multiple bee species pollinate the flowers of A.l. var. piscinensis
(Terry Griswold, Utah State University, pers. comm. 2003).
Bumblebees usually nest in abandoned rodent burrows or bird nests
(Thorp et al. 1983), and bees in the family Megachilidae also nest in
underground rodent burrows or in dry woody material. The alkaline
nature of the habitat occupied by Astragalus lentiginosus var.
piscinensis makes it unlikely that burrowing rodents are present in
such areas, and therefore it is unlikely that these pollinators live
there. We believe insect pollinators are more likely to nest in upland
habitats adjacent to alkaline areas because nesting and cover sites for
various species of mice, kangaroo rats, and pocket mice are more likely
to be common there (T. Griswold, pers. comm. 2003), and these plants
are likely pollinated by bees in the surrounding uplands. Thus, we have
determined that inclusion of currently unoccupied upland habitat within
3,280 ft (1,000 m) of the alkaline habitat occupied by A.l. var.
piscinensis that provides nesting and cover sites for pollinators is
essential to the conservation of A.l. var. piscinensis.
Studies to quantify the distance that bees will fly to pollinate
their host plants are limited in number, but the few that exist show
that some bees will routinely fly 328 to 984 ft (100 to 300 m) to
pollinate plants. Studies by Steffan-Dewenter and Tscharntke (2000)
have demonstrated that it is possible for bees to fly at least 3,280 ft
(1,000 m) to pollinate flowers, and at least one study suggests that
bumblebees may forage many kilometers from a colony (Heinrich 1979).
There are a few studies that provide insight into how alterations
to habitat used by bees may affect the host plants they visit. Studies
by Steffan-Dewenter and Tscharntke (2000) indicate that if pollinator
habitat within 3,280 ft (1,000 m) of some host plants is eliminated,
seed set of some plant species may be decreased by as much as 50
percent. One study that was done in California noted that ``pollination
services provided by native bee communities in California strongly
depended on the proportion of natural upland habitat within 1-2.5 km of
the farm site'' (Kremen et al. 2004). Additional studies also suggest
that the degradation of habitat used by pollinator species is likely to
adversely affect the abundance of the species they pollinate
(Jennersten 1988; Rathcke and Jules 1993).
The area we are designating as critical habitat provides some or
all of the habitat components and the physical and hydrologic
attributes that are essential for the conservation of Astragalus
lentiginosus var. piscinensis. Based on the best available information
at this time, the PCEs for A.l. var. piscinensis include, but are not
limited to:
(1) Alkaline soils that occur in areas with little or no slope, and
which overlay a groundwater table that is 19 to 60 in (48 to 152 cm)
below the land surface;
(2) Plant associations dominated by Spartina-Sporobolis, or where a
sparse amount of Chrysothamnus albidus occurs in the transition zone
between Spartina-Sporobolis and Chrysothamnus albidus-Distichlis plant
associations;
(3) The presence of pollinator populations for Astragalus
lentiginosus var. piscinensis; and
(4) Hydrologic conditions that provide suitable periods of soil
moisture and chemistry for Astragalus lentiginosus var. piscinensis
germination, growth, reproduction, and dispersal.
All of the PCEs outlined above do not have to occur simultaneously
within the unit to constitute critical habitat for Astragalus
lentiginosus var. piscinensis. We determined these PCEs based on the
best available scientific and commercial information, including
professional studies and reports that pertain to its habitat and
ecology, and the hydrological conditions that are relevant to the
quality of habitat in Fish Slough.
Criteria Used To Identify Critical Habitat
The criteria used to identify the critical habitat unit for
Astragalus lentiginosus var. piscinensis include the known range of the
taxon, the alkaline habitat where the taxon and its associated flora
occur, the upland areas within 1,000 m (3,280 ft) of the alkaline soils
that are occupied by the taxon, and the hydrologic features that are
essential to promote the plant's survival and persistence.
A number of botanical surveys have been completed in most of the
alkaline habitats in the greater Owens Valley area, and Astragalus
lentiginosus var. piscinensis has not been found outside of Fish Slough
(Paula Hubbard, LADWP, pers. comm. 2003). Considering this, we conclude
that the geographic range of A.l. var. piscinensis is limited to those
disjunct occurrences within a 6.0-mi (9.6-km) stretch of alkaline
habitat that borders aquatic habitat in Fish Slough in Inyo and Mono
Counties, California. Because the taxon occurs within a relatively
limited area, and the alkaline habitat within the taxon's range forms a
relatively continuous feature in the landscape, we are designating a
single critical habitat unit that is not separated into smaller,
separate units. The critical habitat unit being designated for A.l.
var. piscinensis includes virtually all of the locations where the
taxon has been documented to occur.
With the exception of one small area described below, the entire
geographic area that is or was known to be occupied by the Astragalus
lentiginosus var. piscinensis is being designated as critical habitat
because the taxon occupies a small geographic area, and that area is
occupied by plants that are likely to function as one cohesive
population. These areas are all considered essential to the
conservation of the species, in accordance with section 3(5)(C) of the
Act.
In the proposed critical habitat rule, we determined that one
privately-owned, 49-acre (20-ha) parcel (which is different than the
48-ac (19-ha) alkaline meadow within the 483-ac (195-ha) parcel south
of the southern McNally Canal) within the historic range of Astragalus
lentiginosus var. piscinensis was not essential for its conservation.
That parcel is in Township 6 South, Range 33 East, section 18 of U.S.
Geological Survey quadrangle map titled ``Fish Slough.'' In the
proposed rule, we stated it was highly unlikely that this area was
currently occupied by the taxon. After the proposed rule was published,
we discovered that the area contained eight individuals in 1992, and
one individual in 2000; these numbers represent less than one percent
of the total number of A.l. var. piscinensis that were documented to
occur in the 1992 and 2000 surveys that were done for the taxon.
Because the 49-acre (20-ha) privately owned parcel contains less than 1
percent of the total number of A.l. var. piscinensis that are known to
occur, it has little alkaline soil habitat, and the parcel is not a
location where habitat enhancement activities are likely to occur
within the foreseeable future, we continue to find that the parcel is
not essential to conservation of the taxon and it is not included in
the final critical habitat designation.
We are also not designating the area south of the southern McNally
Canal, and which is owned by the LADWP, as critical habitat because
A.l. var. piscinensis does not occupy it, , the habitat is highly
degraded and is not suitable for recolonization or restoration
activities, and does not provide pollinator habitat that would
contribute in any significant way to the conservation of nearby
occurrences.
The critical habitat unit is designed to encompass a large enough
area to
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support existing ecological processes that may be essential to the
conservation of Astragalus lentiginosus var. piscinensis. Some upland
areas adjacent to the alkaline habitat where A.l. var. piscinensis
occurs could potentially be restored to create additional habitat for
the taxon. Upland areas within 3,280 ft (1,000 m) of the alkaline
habitat also provide nest sites and cover for pollinators, and are
important to help minimize the potential of introducing new nonnative
plant species that may adversely affect A.l. var. piscinensis, and to
control nonnative plant species already present. Because these areas
are essential for conservation of the species, we have included them in
the designated critical habitat unit in accordance with section
3(5)(A)(ii) of the Act.
Determining the geographic boundary of the critical habitat unit
for Astragalus lentiginosus var. piscinensis would be relatively
straightforward if the unit boundary was based only on the presence of
alkaline soils, the Spartina-Sporobolis plant association where A. l.
var. piscinensis is found, and an upland zone inhabited by the plant's
pollinators. We believe, however, that the long-term maintenance and
conservation of A. l. var. piscinensis is ultimately dependent on the
maintenance of the hydrologic system that promotes the development and
persistence of the alkaline soils and plant communities that A. l. var.
piscinensis is associated with. We believe that adverse changes in the
hydrology of Fish Slough may reduce or eliminate those physical
features essential for the species' conservation.
Delineating a critical habitat unit for Astragalus lentiginosus
var. piscinensis that includes the hydrologic system that supports it
poses a challenge because the source(s) of the water that issues from
the springs in Fish Slough is not precisely known, and the location of
the groundwater flow paths between these sources and the spring
orifices in Fish Slough have not yet been determined. Our current
understanding of how pumping activities in Chalfant and Hammil Valleys
affects spring discharge rates or the local aquifer in Fish Slough is
not sufficient to clearly illustrate these cause and effect
relationships.
Because we believe the protection of the hydrologic conditions that
supports the formation and maintenance of alkaline soils is essential
to conserve occupied and suitable unoccupied habitat for Astragalus
lentiginosus var. piscinensis, we have identified these hydrologic
conditions as a PCE in the ``Primary Constituent Element'' section of
this final rule.
When determining critical habitat boundaries, we made every effort
to avoid the designation of developed areas such as buildings, paved
areas, and other structures that lack PCEs for Astragalus lentiginosus
var. piscinensis. Any such structures inadvertently left inside
critical habitat boundaries are not considered part of the critical
habitat unit. This also applies to the land on which such structures
sit directly. Therefore, Federal actions limited to these areas would
not trigger section 7 consultations, unless they affect the species
and/or primary constituent elements in adjacent critical habitat.
A brief discussion of the area designated as critical habitat is
provided in the unit description below. Additional detailed
documentation concerning the essential nature of this area is contained
in our supporting record for this rulemaking.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the physical
and biological features determined to be essential for conservation may
require special management considerations or protection. As we
undertake the process of designating critical habitat for a species, we
first evaluate lands defined by those physical and biological features
essential to the conservation of the species for inclusion in the
designation pursuant to section 3(5)(A) of the Act. Secondly, we then
evaluate lands defined by those features to assess whether they may
require special management considerations or protection.
In 1982, BLM established the Fish Slough ACEC in an effort to
provide protection for the federally endangered Owens pupfish, several
rare plant taxa including Astragalus lentiginosus var. piscinensis, and
the wetland and riparian habitats upon which these species depend. The
Fish Slough ACEC has three zones (BLM 1984). The designated critical
habitat unit is predominantly located within Zone 1 of the ACEC,
includes a very small portion of Zone 2, and also extends slightly
beyond the southern boundary of the ACEC. The land in Zone 1 is owned
by BLM, CDFG, LADWP, and one private landowner. The portion of the
designated critical habitat unit in Zone 2, or in the area immediately
south of the ACEC, is owned by BLM or LADWP. A management plan for the
ACEC was finalized in 1984, but the plan has not been revised since it
was completed.
Previously identified threats to Astragalus lentiginosus var.
piscinensis include the presence of roads, effects related to the use
of OHV, effects related to cattle grazing, and effects from herbivory
by native vertebrates and insects (Service 1998). A potential threat to
A. l. var. piscinensis not previously identified in other documents
includes competition with, or displacement by, nonnative plant species
(P. Hubbard, LADWP, pers. comm. 2003). The modification of wetland
habitats that results from groundwater pumping or water diversion
activities altering the surface and underground hydrology of Fish
Slough is also a threat to the species (Service 1998).
The suite of threats affecting Astragalus lentiginosus var.
piscinensis is complex. The establishment of the Fish Slough ACEC has
helped provide some benefit for A. l. var. piscinensis by coordinating
the activities of staff from BLM, LADWP, and CDFG on various land
management challenges that exist in the local area. Because the long,
narrow configuration of the slough is bounded by upland habitat, the
amount of alkaline habitat that can be occupied by A. l. var.
piscinensis is limited. Ferren (1991b) summarizes threats to botanical
resources at Fish Slough, noting that those threats related to the
enhancement of fisheries (construction of ponds, impoundments, roads,
and ditches) may have had the greatest effect on the Fish Slough
ecosystem because they modified the hydrological conditions that
historically occurred in Fish Slough.
In the central portion of the slough, Fish Slough Lake appears to
have expanded in size between 1944 and 1981. This increase may be due
to natural geologic subsidence, the construction of Red Willow Dam, or
the construction of water impoundments by beavers. The increase in
aquatic habitat has likely resulted in the loss of alkaline habitat for
Astragalus lentiginosus var. piscinensis as soils near the lake are now
saturated for greater portions of the year (Ferren 1991c). Some
earthquake events in Chalfant Valley appear to have resulted in
decreases in spring discharge or changes in local water table levels
(Brian Tillemans, LADWP, pers. comm. 2000), thereby making it more
difficult to clearly understand the nature of the local aquifer.
Modifications to the slough environment from changes in the local
hydrology are not well understood or easily reversed. These factors, in
combination with essential data gaps that include, but are not limited
to, a more thorough understanding of the ecology and habitat
requirements of the species, have made it difficult for local land
managers to understand and reverse the decline in the number of A. l.
var. piscinensis within the ACEC over
[[Page 33788]]
the past decade. A downward trend in the species' abundance during the
past decade suggests that, despite the ongoing efforts by the relevant
land management agencies, additional factors need to be addressed to
reverse the decline in the status of A. l. var. piscinensis.
We believe that the designated critical habitat unit may require
special management considerations to maintain the identified primary
constituent elements. These include the potential need to respond to
the following:
(1) Activities that have the potential to change the hydrology of
Fish Slough and adversely affect the survivorship, seed germination,
growth, or photosynthesis of Astragalus lentiginosus var. piscinensis,
unless such activities are designed and have the effect of recreating
the historic environmental conditions that existed in Fish Slough;
(2) Activities that have the potential to adversely affect the
suitability of alkaline areas that could provide habitat for Astragalus
lentiginosus var. piscinensis including, but not limited to, OHV use,
levels of cattle grazing that could result in increased soil
compaction, road construction and maintenance activities, and water
diversion activities;
(3) Activities that have the potential to modify the species
composition, character, or persistence of the native plant associations
that are associated with Astragalus lentiginosus var. piscinensis;
(4) Activities that could adversely affect the insect pollinators
that inhabit the native upland desert scrub community that is adjacent
to alkaline habitats in Fish Slough, including, but not limited to,
livestock grazing at levels that would increase soil compaction, use of
heavy-wheeled vehicles or OHVs (including motorcycles and all terrain
vehicles), pesticide use, and incompatible recreational activities; and
(5) Management activities, particularly those that involve cattle
grazing and road maintenance, which have the potential to introduce new
nonnative plant species that may compete with or displace Astragalus
lentiginosus var. piscinensis.
Critical Habitat Designation
We are designating one unit as critical habitat for the Astragalus
lentiginosus var. piscinensis. The critical habitat area described
below constitutes our best assessment at this time of the areas
essential for the conservation of the A. l. var. piscinensis containing
the essential physical and biological features that may require special
management considerations or protection.
The single critical habitat unit for Astragalus lentiginosus var.
piscinensis encompasses approximately 8,007 ac (3,240 ha). Within the
designated unit, the city of Los Angeles owns four separate parcels
that total 2,440 ac (987 ha). CDFG owns a single 166 ac (67 ha) parcel
in the designated critical habitat unit. The remaining land within the
unit is owned by BLM and comprises 5,401 ac (2,186 ha). The approximate
size of the different land ownership areas within the designated
critical habitat unit is shown in Table 1. Lands managed by BLM and
LADWP comprise 68 and 30 percent of the total unit, respectively, with
State lands comprising approximately 2 percent.
Table 1.--Approximate Areas in Acres (ac) (Hectares (ha)) of Designated Critical Habitat for Astragalus lentiginosus var. piscinensis by Land Ownership
--------------------------------------------------------------------------------------------------------------------------------------------------------
Critical habitat unit name City of Los Angeles State of California Federal (BLM) Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fish Slough unit................ 2,440 ac (987 ha) 166 ac (67 ha) 5,401 ac (2,185 ha) 8,007 ac (3,240 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
The land within the critical habitat unit contains at least ninety-
nine percent of the known occurrences of A. l. var. piscinensis, and we
consider these occurrences to be essential to the conservation of the
listed taxon. The critical habitat unit also contains (1) the alkaline
habitat occupied by this taxon, (2) the Spartina-Sporobolis plant
association and Chrysothamnus albidus that is present in the transition
zone between the Spartina-Sporobolis and Chrysothamnus albidus--
Distichlis plant associations, and (3) some of the hydrologic features
that we believe are necessary to promote the persistence and successful
recruitment of the species. The critical habitat unit also includes
unoccupied upland areas that provide cover sites for insect
pollinators.
The unit boundary overlaps the boundary of Inyo and Mono Counties
in California. The northernmost boundary of the designated Fish Slough
critical habitat unit is located approximately 3,444 ft (1,050 m) north
of Northeast Spring in the northern portion of Fish Slough. The
southern boundary of the designated critical habitat unit abuts, and is
in direct contact with, the southern McNally Canal. The eastern and
western boundaries of the unit are parallel to, overlap, or are
adjacent to the eastern and western boundaries of Zone 1 of BLM's Fish
Slough ACEC, respectively.
Section 7 Consultation
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 proposed or designated, and to ensure that
actions they fund, authorize, or carry out are not likely to destroy or
adversely modify critical habitat. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. We are currently reviewing the regulatory definition of
adverse modification in relation to the conservation of the species.
Section 7(a)(4) of the Act 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 agency in eliminating conflicts that may
be caused by the proposed action. We may issue a formal conference
report if requested by a Federal agency. Formal conference reports on
proposed critical habitat contain an opinion that is prepared according
to 50 CFR 402.14, as if critical habitat were designated. We may adopt
the formal conference report as the biological opinion when the
critical habitat is designated, if no substantial new information or
changes in the action alter the content of the opinion (see 50 CFR
402.10(d)). The conservation recommendations in a conference report are
advisory.
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
[[Page 33789]]
or adversely modify its critical habitat. If a Federal action may
affect a listed species or its critical habitat, the responsible
Federal agency (action agency) must enter into consultation with us.
Through this consultation, the action agency ensures that their 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 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.
Federal activities that may affect Astragalus lentiginosus var.
piscinensis 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 (Corps) under section 404 of the Clean Water Act, a section
10(a)(1)(B) permit from the Service, or some other Federal action,
including funding from Federal agencies (e.g., Federal Highway
Administration or Natural Resources Conservation Service), will also 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 evaluate and
describe 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 may also jeopardize the continued existence of the Astragalus
lentiginosus var. piscinensis. Federal activities that, when carried
out, may adversely affect critical habitat for the A. l. var.
piscinensis include, but are not limited to:
(1) Activities that disturb or degrade the character of alkaline
soils or hydrology necessary to support wetlands in Fish Slough;
(2) Activities that have the potential to introduce nonnative plant
species to Fish Slough or promote the spread of nonnative plant species
present in the local area.
(3) Activities that alter the character of the native plant
associations that co-occur with Astragalus lentiginosus var.
piscinensis;
(4) Activities that adversely affect insect pollinators that
facilitate viable seed production in Astragalus lentiginosus var.
piscinensis;
(5) Activities on Federal or private lands that require permits
from Federal agencies or use Federal funding;
(6) Sale or exchange of lands by a Federal agency to a non-Federal
entity; and
(7) Promulgation and implementation of a land use plan by a Federal
agency, such as the BLM, which may alter management practices for
critical habitat.
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section
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. Therefore, areas within the
geographic area occupied by the species that do not contain the
features essential for the conservation of the species are not, by
definition, critical habitat. Similarly, areas within the geographic
area occupied by the species containing features essential for the
conservation of the species that do not require special management
considerations or protection also are not, by definition, critical
habitat. To determine whether essential features within an area require
special management, we determine if the essential features generally
require special management to address applicable threats. If those
features do not require special management, or if they do in general
but not for the particular area in question because of the existence of
an adequate management plan or for some other reason, then the area
does not require special management.
We consider a current plan to provide adequate management or
protection if it meets three criteria: (1) The plan is complete and
provides a conservation benefit to the species (i.e., the plan must
maintain or provide for an increase in the species' population, or the
enhancement or restoration of its habitat within the area covered by
the plan); (2) the plan provides assurances that the conservation
management strategies and actions will be implemented (i.e., those
responsible for implementing the plan are capable of accomplishing the
objectives, and have an implementation schedule or adequate funding for
implementing the management plan); and (3) the plan provides assurances
that the conservation strategies and measures will be effective (i.e.,
it identifies biological goals, has provisions for reporting progress,
and is of a duration sufficient to implement the plan and achieve the
plan's goals and objectives).
Further, section 4(b)(2) of the Act states that critical habitat
shall be designated, and revised, on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, 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 that the benefits of 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.
In our critical habitat designations, we use both the provisions
outlined in sections 3(5)(A) and 4(b)(2) of the Act to evaluate those
specific areas that we are considering including in a proposal to
designate critical habitat as well as for those areas that are formally
proposed for designation as critical habitat. Lands we have found do
not meet the definition of critical habitat under section 3(5)(A) or
have excluded pursuant to section 4(b)(2) include those covered by the
following types of plans if they provide assurances that the
[[Page 33790]]
conservation measures they outline will be implemented, effective, and
cover the species: (1) Legally operative HCPs; (2) draft HCPs that have
undergone public review and comment (i.e., pending HCPs); (3) Tribal
conservation plans; (4) State conservation plans; and (5) National
Wildlife Refuge System Comprehensive Conservation Plans.
Pursuant to section 4(b)(2) of the Act, we must consider relevant
impacts in addition to economic ones. We determined that the lands
within the designation of critical habitat for Astragalus lentiginosus
var. piscinensis are not owned or managed by the U.S. Department of
Defense, there are currently no HCPs for A. l. var. piscinensis, and
the designation does not include any Tribal lands or trust resources.
In addition, there are no State conservation plans covering the plant.
We anticipate no impact to national security, Tribal lands,
partnerships, or HCPs from this critical habitat designation. Based on
the best available information, including the prepared economic
analysis, we believe that the critical habitat unit is essential for
the conservation of this species. Our economic analysis indicates an
overall low cost resulting from the designation. Therefore, we have
found no areas for which the benefits of exclusion outweigh the
benefits of inclusion, and so have not excluded any areas from this
designation of critical habitat for A. l. var. piscinensis based on
economic impacts. As such, we have considered but not excluded any
lands from this designation based on any relevant impacts.
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial information
available and to consider the economic and other relevant impacts of
designating a particular area as critical habitat. We may exclude areas
from critical habitat upon a determination that the benefits of such
exclusions outweigh the benefits of specifying such areas as critical
habitat. We cannot exclude such areas from critical habitat when such
exclusion will result in the extinction of the species concerned.
Following the publication of the proposed critical habitat
designation, we conducted an economic analysis to estimate the
potential economic effect of the designation. The DEA was made
available for public review on December 28, 2004 (69 FR 77703). We
accepted comments on the DEA until January 27, 2005.
The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the designation of critical
habitat for Astragalus lentiginosus var. piscinensis. This information
is intended to assist the Secretary in making decisions about whether
the benefits of excluding particular areas from the designation
outweigh the benefits of including those areas in the designation. This
economic analysis considers the economic efficiency effects that may
result from the designation, including habitat protections that may be
coextensive with the listing of the species. It also addresses
distribution of impacts, including an assessment of the potential
effects on small entities and the energy industry. This information can
be used by the Secretary to assess whether the effects of the
designation might unduly burden a particular group or economic sector.
This analysis focuses on the direct and indirect costs of the rule.
However, economic impacts to land use activities can exist in the
absence of critical habitat. These impacts may result from, for
example, local zoning laws, State and natural resource laws, and
enforceable management plans and best management practices applied by
other State and Federal agencies. Economic impacts that result from
these types of protections are not included in the analysis as they are
considered to be part of the regulatory and policy baseline.
The economic analysis addresses the effects of Astragalus
lentiginosus var. piscinensis conservation efforts on activities
occurring on lands proposed for designation. The analysis measures lost
economic efficiency associated with indirect costs of reduced grazing
opportunities, and direct costs of species and habitat conservation
activities, monitoring and reporting on the status of water diversion
activities associated with mining activities, cattle exclosure
construction and maintenance costs, and the cost of signage for OHV
routes of travel.
Estimated pre-designation costs (occurring from the time of the
listing of Astragalus lentiginosus var. piscinensis to final
designation of critical habitat, i.e., 1998-2004) range from $778,000
to $845,000. Total post-designation costs are estimated to be
approximately $895,000, or $45,000 on an annualized basis over the 20-
year post-designation analysis period. Approximately 92 percent of the
post-designation costs will be borne by BLM. These expenditures will
involve resource management activities such as enforcement of OHV
recreation guidelines, habitat restoration activities, prescribed
burns, public outreach, etc.
A copy of the final economic analysis with supporting documents are
included in our administrative record and may be obtained by contacting
the U.S. Fish and Wildlife Service, Branch of Endangered Species (see
ADDRESSES section), or by downloading the document from the Internet
at: http://ventura.fws.gov/.
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 final rule easier to understand, including answers to
questions such as the following: (1) Are the requirements in the final
rule clearly stated? (2) Does the final rule contain technical jargon
that interferes with the clarity? (3) Does the format of the final rule
(grouping and order of the sections, use of headings, paragraphing, and
so forth) aid or reduce its clarity? (4) Is the description of the
notice in the SUPPLEMENTARY INFORMATION section of the preamble helpful
in understanding the final rule? (5) What else could we do to make this
final rule easier to understand?
Send a copy of any comments on how we could make this final 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 this address: [email protected].
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues,
but will not have an annual effect on the economy of $100 million or
more or affect the economy in a material way. Due to the tight timeline
for publication in the Federal Register, the Office of Management and
Budget (OMB) has not formally reviewed this rule. As explained above,
we prepared an economic analysis of this action. We used this analysis
to meet the requirement of section 4(b)(2) of the Act to determine the
economic consequences of designating the specific areas as critical
habitat. We also used it to help determine whether to exclude any area
from critical habitat, as provided for under section 4(b)(2), if we
determine that the benefits of such exclusion outweigh the benefits of
specifying such area as part of the critical habitat, unless we
determine,
[[Page 33791]]
based on the best scientific and commercial data available, that the
failure to designate such area as critical habitat will result in the
extinction of the species.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (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
effect 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 an agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. SBREFA amended the RFA to require
Federal agencies to provide a statement of factual basis for certifying
that the rule will not have a significant economic impact on a
substantial number of small entities. SBREFA also amended the RFA to
require a certification statement.
Small entities include small organizations, such as independent
nonprofit organizations; small governmental jurisdictions, including
school boards and city and town governments that serve fewer than
50,000 residents; as well as small businesses. Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than $11.5
million in annual business, and agricultural businesses with annual
sales less than $750,000. 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. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities (e.g., housing
development, grazing, oil and gas production, timber harvesting). We
apply the ``substantial number'' test individually to each industry to
determine if certification is appropriate. However, the SBREFA does not
explicitly define ``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 an area.
In some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities conducted,
funded, or permitted by Federal agencies. Some kinds of activities are
unlikely to have any Federal involvement and so will not be affected by
critical habitat designation. In areas where the species is present,
Federal agencies already are required to consult with us under Section
7 of the Act on activities they fund, permit, or implement that may
affect Astragalus lentiginosus var. piscinensis. Federal agencies also
must consult with us if their activities may affect critical habitat.
Designation of critical habitat, therefore, could result in an
additional economic impact on small entities due to the requirement to
reinitiate consultation for ongoing Federal activities.
The final economic analysis (May 2005) was based on acreages from
the proposed rule and predicts potential costs of the proposed
designation to several industry sectors (agricultural production,
livestock grazing, recreation, commercial mining, groundwater
exportation, and resource management activities in the ACEC where the
species occurs). Based on this economic analysis, pre-designation costs
range from $778,000 to $845,000. The majority of the pre-designation
costs, 59 percent, are associated with resource management efforts
within the Fish Slough ACEC, including modifications of impoundments
and fish barriers, prescribed burning, invasive plant species control,
and enforcement of OHV restrictions.
An addendum to the final economic analysis (memorandum dated May
26, 2005) provides information on the economic impacts of the final
critical habitat as described in the final rule. Pre-designation costs
remain unchanged from the final EA. Post-designation costs are
approximately $895,000, or $45,000 on an annualized basis over the 20-
year post-designation analysis period. The following components
comprise post-designation costs: (1) Direct annual costs of species and
habitat conservation activities ($41,000 per year, primarily borne by
BLM); (2) Direct costs of cattle exclosure maintenance and
constructions ($500 per year, borne by LADWP); (3) Direct cost of
additional lease and increased property taxes borne by grazing lessee
($540 per year, borne by a private rancher); (4) Indirect costs of
reduced grazing opportunities ($2,670 per year, borne by a private
rancher); and (5) Direct costs of signage for OHV routes of travel
($500 per year, borne by BLM).
Of the forecast post-designation costs, 92 percent are associated
with the implementation of projects specifically intended to benefit
the species and habitat (prescribed burns, control of invasive plant
species, plant propagation and out planting, and public outreach). Of
the remaining 8 percent of post-designation costs, approximately 7
percent is associated with exclusion of cattle grazing activities, and
1 percent is associated with signage of open routes for OHV use. No
impacts to small entities within the agricultural production industry
are expected to result from this designation. Likewise, no impacts to
small businesses that benefit from either recreational fishing or OHV
recreation in Fish Slough are expected. Thus, the only anticipated
costs to small entities are increased costs for one rancher. Based on
these data, we have determined that this designation would not affect a
substantial number of small entities. As such, we are certifying that
this designation of critical habitat would not result in a significant
economic impact on a substantial number of small entities.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C 801 et
seq.)
Under SBREFA, this rule is not a major rule. Our detailed
assessment of the economic effects of this designation is described in
the economic analysis. Based on the effects identified in the economic
analysis, we believe that this rule will not have an annual effect on
the economy of $100 million or more, will not cause a major increase in
costs or prices for consumers, and will not have significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of U.S.-based enterprises to compete with
foreign-based enterprises. Refer to the final economic analysis for a
[[Page 33792]]
discussion of the effects of this determination.
Executive Order 13211
On May 18, 2001, the President issued Executive Order 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 final rule to
designate critical habitat for Astragalus lentiginosus var. piscinensis
is not expected to significantly affect energy supplies, distribution,
or use. 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
et seq.), we make the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or 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). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance; or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply; nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments because it will not produce a Federal mandate
of $100 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments. As such, a Small Government Agency Plan is
not required.
Federalism
In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with DOI and Department of Commerce policy, we
requested information from, and coordinated development of, this final
critical habitat designation with appropriate State resource agencies
in California. The designation of critical habitat in areas currently
occupied by Astragalus lentiginosus var. piscinensis imposes no
additional restrictions to those currently in place and, therefore, has
little incremental impact on State and local governments and their
activities. The designation may have some benefit to these governments
in that the areas essential to the conservation of the species are more
clearly defined, and the primary constituent elements of the habitat
necessary to the conservation of the species are specifically
identified. While making 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 consultations to occur).
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We are designating critical habitat in accordance
with the provisions of the Endangered Species Act. This final 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 the Astragalus lentiginosus var.
piscinensis.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act. 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
It is our position that, outside the Tenth Circuit, we do not need
to prepare environmental analyses as defined by the National
Environmental Policy Act of 1969 in connection with designating
critical habitat under the Endangered Species Act of 1973, as amended.
We published a notice outlining our reasons for this determination in
the Federal Register on October 25, 1983 (48 FR 49244). This assertion
was upheld in the courts of the Ninth Circuit (Douglas County v.
Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698
(1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and DOI'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
[[Page 33793]]
no Tribal lands essential for the conservation of the Astragalus
lentiginosus var. piscinensis. Therefore, we have not designated
critical habitat for the A. l. var. piscinensis on Tribal lands.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from the Ventura Fish and Wildlife Office (see
ADDRESSES section).
Author(s)
The authors of this package are staff from the Ventura Fish and
Wildlife Office staff (see ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as follows:
PART 17--[AMENDED]
0
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.
0
2. In Sec. 17.12(h), revise the entry for Astragalus lentiginosus var.
piscinensis 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 lentiginosus var. Fish Slough milk- U.S.A. (CA)........ Fabaceae........... T............... 647 17.96(a) NA
piscinensis. vetch.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.96, amend paragraph (a) by adding an entry for
Astragalus lentiginosus var. piscinensis in alphabetical order under
Family Fabaceae to read as follows:
Sec. 17.96 Critical habitat--Plants.
(a) Flowering plants.
* * * * *
Family Fabaceae: Astragalus lentiginosus var. piscinensis (Fish
Slough milk-vetch)
(1) The critical habitat unit is depicted for Inyo and Mono
Counties, California, on the map below.
(2) The PCEs of critical habitat for Astragalus lentiginosus var.
piscinensis consist of:
(i) Alkaline soils that occur in areas with little or no slope, and
which overlay a groundwater table that is 19 to 60 in (48 to 152 cm)
below the land surface;
(ii) Plant associations dominated by Spartina-Sporobolis, or where
a sparse amount of Chrysothamnus albidus occurs in the transition zone
between Spartina-Sporobolis and Chrysothamnus albidus-Distichlis plant
associations;
(iii) The presence of pollinator populations for Astragalus
lentiginosus var. piscinensis; and
(iv) Hydrologic conditions that provide suitable periods of soil
moisture and chemistry for Astragalus lentiginosus var. piscinensis
germination, growth, reproduction, and dispersal.
(3) Critical habitat does not include the land upon which are found
existing features and structures, such as buildings, roads, parking
lots, and other paved surfaces, or areas not containing one or more of
the primary constituent elements.
(4) Critical Habitat Map Unit.
(i) Map Unit 1: Fish Slough unit, Inyo and Mono Counties,
California. From USGS 1:24,000 quadrangle maps Chidago Canyon and Fish
Slough, California. Lands bounded by the following UTM Zone 11, NAD
1927 coordinates (E, N): 373700, 4149500; 373800, 4149800; 373800,
4150300; 373900, 4150700; 373900, 4151400; 374000, 4151800; 374100,
4152400; 374200, 4152700; 374400, 4153000; 374500, 4153100; 374800,
4153200; 375000, 4153300; 375100, 4153500; 375200, 4153700; 375400,
4154000; 375700, 4154200; 375800, 4154200; 376100, 4154300; 376500,
4154200; 376700, 4154100; 377000, 4153900; 377200, 4153600; 377300,
4153400; 377400, 4153100; 377400, 4152400; 377300, 4151900; 377200,
4151600; 377300, 4150200; 377200, 4149900; 377100, 4149700; 377000,
4149500; 377300, 4149100; 377400, 4148900; 377500, 4148200; 377500,
4147700; 377400, 4147100; 377300, 4146400; 377200, 4145800; 377100,
4145600; 377000, 4145300; 377000, 4145200; 376900, 4144600; 376900,
4144300; 376900, 4144200; 376800, 4144000; 376800, 4143800; 376900,
4143700; 377100, 4143600; 377500, 4143000; 377500, 4142600; thence to
377466; 4142464, where the boundary intersects the south McNally Canal.
Thence westerly along the south McNally Canal to 375331, 4141934;
thence northwest and following coordinates: 375200, 4142000; 375000,
4142200; 374800, 4142500; 374700, 4142900; 374600, 4143500; 374500,
4144000; 374600, 4144400; 374700, 4144600; 374700, 4145600; 374800,
4145900; 374900, 4146300; 374900, 4146900; 374800, 4147300; 374700,
4147500; 374400, 4147800; 374000, 4148600; 373800, 4149200; and
returning to 373700, 4149500.
(ii) Excluding land bounded by 375700, 4143400; 375700, 4142900;
376300, 4142900; and 376300, 4143400; and returning to 375700, 4143400.
(iii) Note: Map of the critical habitat unit follows.
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[GRAPHIC] [TIFF OMITTED] TR09JN05.000
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* * * * *
Dated: June 1, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-11315 Filed 6-8-05; 8:45 am]
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