[Federal Register Volume 70, Number 239 (Wednesday, December 14, 2005)]
[Rules and Regulations]
[Pages 74112-74136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23694]
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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. coachellae (Coachella Valley
Milk-Vetch); Final Rule
Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 /
Rules and Regulations
[[Page 74112]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AT74
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Astragalus lentiginosus var. coachellae (Coachella
Valley 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), herein
address the designation of critical habitat for Astragalus lentiginosus
var. coachellae (Coachella Valley milk-vetch) under the Endangered
Species Act of 1973, as amended (Act). In total, we are designating
zero acres of critical habitat for Astragalus lentiginosus var.
coachellae. We identified 17,746 ac (7,182 ha) of local, County, State,
Federal, and private lands containing features essential to the
conservation of A.l. var. coachellae in Riverside County. However, all
habitat with essential features is located within areas to be conserved
and managed by the draft Coachella Valley MSHCP/NNCP or within areas
conserved within the Coachella Valley Preserve System under the
Coachella Valley fringe-toed HCP, and therefore is excluded or exempted
from critical habitat under section 4(b)(2) or 3(5)(A) of the Act.
DATES: This rule becomes effective on January 13, 2006.
ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this final rule, will be
available for public inspection, by appointment, during normal business
hours at the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley
Road, Carlsbad, California 92011. You may obtain copies of the final
rule and economic analysis from this address or by calling (760) 431-
9440, or from our Internet site at http://carlsbad.fws.gov.
FOR FURTHER INFORMATION CONTACT: Mr. Jim Bartel, Field Supervisor,
Carlsbad Fish and Wildlife Office (see ADDRESSES section).
SUPPLEMENTARY INFORMATION:
Designation of Critical Habitat Provides Little Additional Protection
to Species
In 30 years of implementing the Act, the Service has found that the
designation of statutory critical habitat provides little additional
protection to most listed species, while consuming significant amounts
of available conservation resources. The Service's present system for
designating critical habitat has evolved since its original statutory
prescription into a process that provides little real conservation
benefit, is driven by litigation and the courts rather than biology,
limits our ability to fully evaluate the science involved, consumes
enormous agency resources, and imposes huge social and economic costs.
The Service believes that additional agency discretion would allow our
focus to return to those actions that provide the greatest benefit to
the species most in need of protection.
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
While attention to and protection of habitat is paramount to
successful conservation actions, we have consistently found that, in
most circumstances, the designation of critical habitat is of little
additional value for most listed species, yet it consumes large amounts
of conservation resources. Sidle (1987) stated, ``Because the Act 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 470 species, or 37.5
percent of the 1,253 listed species in the U.S. under the jurisdiction
of the Service, have designated critical habitat.
We address the habitat needs of all 1,253 listed species through
conservation mechanisms such as listing, section 7 consultations, the
Section 4 recovery planning process, the Section 9 protective
prohibitions of unauthorized take, Section 6 funding to the States, and
the Section 10 incidental take permit process. The Service believes
that it is these measures that may make the difference between
extinction and survival for many species.
We note, however, that the August 6, 2004, Ninth Circuit judicial
opinion, Gifford Pinchot Task Force v. United States Fish and Wildlife
Service, found our definition of adverse modification was invalid. In
response to the decision, the Director has provided guidance to the
Service based on the statutory language. In this rule, our analysis of
the consequences and relative costs and benefits of the critical
habitat designation is based on application of the statute consistent
with the 9th Circuit's ruling and the Director's guidance.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically imperiled species, and final listing determinations on
existing proposals are all significantly delayed.
The accelerated schedules of court-ordered designations coupled
with the need to avoid the risks associated with noncompliance with
judicially imposed deadlines, have left the Service with limited
ability to provide for adequate public participation or to ensure a
defect-free rulemaking process before making decisions on listing and
critical habitat proposals. This in turn fosters a second round of
litigation in which those who fear adverse impacts from critical
habitat designations challenge those designations. The cycle of
litigation appears endless, is very expensive, and in the final
analysis provides relatively little additional protection to listed
species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects and the cost of requesting and responding to
public comment, and in some cases the costs of compliance with the
National Environmental Policy Act (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
Astragalus lentiginosus var. coachellae is found on loose wind-
blown sands in dunes and flats, and in
[[Page 74113]]
sandy alluvial washes in the northern Coachella Valley area spanning
roughly from the sandy alluvial washes just east of Cabezon to the
dunes off Washington Avenue, north and west of Indio in Riverside
County, California. At the time A. l. var. coachellae was listed under
the Act in 1998, we were aware that 90 percent of this taxon's
occurrences were located within 3 mi (5 km) of Interstate 10 from north
of Indio to Cabezon (Barrows 1987; CNDDB 1996). A majority of these
occurrences were discovered in and around Snow Creek, Whitewater River
downstream from the percolation ponds, Mission and Morongo Creeks, the
Willow Hole Reserve, the Big Dune south of Interstate Highway 10 (I-
10), and the Coachella Valley Preserve (Coachella Valley Association of
Governments unpublished data 2004). The largest populations of up to
several thousand plants were found prior to listing in the Big Dune
area south of I-10, including several thousand plants that were
discovered again in 2005 (USFWS unpublished data 2005). Other areas
containing large populations that were known prior to listing that
contain from several hundred to a thousand plants include the Willow
Hole reserve area, Snow Creek area, and Coachella Valley Preserve
(Coachella Valley Association of Governments unpublished data 2004).
There also exists a disjunct Astragalus lentiginosus var.
coachellae population that was known at the time of listing. This
population is located approximately 50 miles (80 km) east of the
Coachella Valley in the Chuckwalla Valley near the City of Desert
Center. This population has only been found in a limited extent on and
near a sandy roadside berm along a 5-mile (8-km) stretch of Highway
177, northeast of the City of Desert Center. The Palen Dunes, located
approximately 3 miles (5 km) south of Highway 177, contain sandy soils
that appear suitable for A. l. var. coachellae. However, it is
uncertain whether the plant occurs in this area since surveys are
limited to only one unsuccessful survey attempt in 1998 (Bureau of Land
Management, unpublished data 2001a).
Please refer to the final listing rule published in the Federal
Register on October 6, 1998 (63 FR 53596), for a detailed discussion on
the taxonomic history and description of this taxon. It is our intent
in this document to reiterate and discuss only those topics directly
relevant to the development and designation of critical habitat or
relevant information obtained since the final listing.
The primary threat to Astragalus lentiginosus var. coachellae and
its habitat is the extensive and growing urban development in the
Coachella Valley (63 FR 53596), including residential, commercial, and
agricultural development. Urbanization has both direct and indirect
adverse effects on A. l. var. coachellae. Urbanization directly
destroys suitable and occupied habitat onsite, and indirectly degrades
suitable and occupied habitat by blocking the fluvial (water) and
eolian (wind) transport of sand from sand source areas to downwind
areas of suitable habitat. Other threats to Astragalus lentiginosus
var. coachellae and its habitat include the obstruction of sand
transport and competition by dense populations of invasive exotic
plants, such as Saharan mustard (Brassica tournefortii) and
Mediterranean grass (Schismus barbatus), and direct mortality by off-
highway vehicle (OHV) use (63 FR 53596).
Previous Federal Actions
The following section summarizes the Federal actions that occurred
since the rule listing this species as endangered was published in the
Federal Register on October 6, 1998. Please refer to the final listing
rule (63 FR 53596) for a discussion of Federal actions that occurred
prior to the species Federal listing.
At the time of listing we determined that designation of critical
habitat was ``not prudent'' (63 FR 53596). On November 15, 2001, the
Center for Biological Diversity and the California Native Plant Society
filed a lawsuit against Secretary of the Interior and the Service
challenging our ``not prudent'' determinations for eight plant species
listed as endangered or threatened, including Astragalus lentiginosus
var. coachellae (Center for Biological Diversity, et al. v. Norton, No.
01 CV 2101, S.D. Cal.). A second lawsuit asserting the same challenge
was filed on November 21, 2001, by the Building Industry Legal Defense
Foundation (Building Industry Legal Defense Foundation v. Norton, No.
01 CV 2145, S.D. Cal.). The parties in both cases agreed to remand the
critical habitat determinations for the eight plant species at issue to
the Service for reconsideration. On July 1, 2002, the Court directed us
to reconsider our not prudent determination and submit to the Federal
Register for publication a proposed critical habitat designation, if
prudent, for Astragalus lentiginosus var. coachellae on or before
November 30, 2004, and to submit to the Federal Register for
publication of a final critical habitat designation on or before
November 30, 2005. The proposed rule to designate critical habitat for
Astragalus lentiginosus var. coachellae was signed on November 30,
2004, and published in the Federal Register on December 14, 2004 (69 FR
74468).
Summary of Comments and Recommendations
During the initial 60-day public comment period for the proposed
designation of critical habitat (69 FR 74468), we contacted all
appropriate State, local and Federal agencies, elected officials,
scientific organizations, and other interested parties, via mail and/or
fax, and invited them to submit comments and/or information concerning
the proposed rule. We also published newspaper notices on December 17,
2004, in the Desert Sun, Palm Springs, CA; Press-Enterprise, Riverside,
CA; San Diego Union-Tribune, San Diego, CA; Orange County Register,
Santa Ana, CA; and in the Los Angeles Times, Los Angeles, CA, inviting
public comment. The initial comment period ended February 14, 2005. We
did not receive any requests for a public hearing prior to the
published deadline.
A second comment period was open from September 27, 2005, to
October 27, 2005 (70 FR 56434), announcing the availability of the
September 2005 draft economic analysis (DEA) of critical habitat
designation for Astragalus lentiginosus var. coachellae as prepared by
Northwest Economic Associates and reopening the comment period for the
proposed rule. All comments and new information have been incorporated
into this final rule as appropriate.
During the first comment period, we received four comments,
including a joint letter from two non-profit organizations, a letter
from a county agency, a water agency, and a local mining business. All
four comment letters disagreed with the size and area proposed critical
habitat: three of the letters requested the reduction of critical
habitat and one letter requested the expansion of critical habitat to
more areas.
During the second comment period, we received one comment letter on
the draft economic analysis from an environmental organization. The
commenter, who also commented during the first comment period,
disagreed with excluding areas from critical habitat and requested that
we include sand source areas in critical habitat. The commenter also
claimed that the economic analysis grossly overestimated the costs
associated with
[[Page 74114]]
conserving Astragalus lentiginosus var. coachellae.
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited independent opinions from four
knowledgeable individuals who have expertise with the species, with the
geographic region where the species occurs, and/or with the principles
of conservation biology. The purpose of such review is to ensure that
the designation is based on scientifically sound data, assumptions, and
analyses, including input of appropriate experts and specialists.
Of the four individuals contacted, two responded. The two peer
reviewers that responded generally supported the proposal and provided
us with additional information, clarifications, and suggestions to
improve the final critical habitat designation. One reviewer
recommended expanding the critical habitat designation to include lands
within the draft Coachella Valley Multiple Species Habitat Conservation
Plan and Natural Community Conservation Plan (MSHCP/NCCP) that were
proposed for exclusion. This recommendation was based on the fact that
the draft Coachella Valley MSHCP/NCCP has yet to be approved and that
effective conservation efforts for Astragalus lentiginosus var.
coachellae are, therefore, still unproven. The other peer reviewer did
not comment on whether critical habitat should be expanded or reduced,
but recommended the Service provide more explanation for our
determinations for including or excluding certain areas from designated
critical habitat. Both peer reviewers discussed the importance of
including important sand source areas as critical habitat because they
are important for providing and transporting sediment containing new
sands to downstream and downwind sandy areas containing PCEs, even
though these areas do not contain PCEs that support populations of this
taxon. Both reviewers suggested ways to improve the clarity of both the
rule and our decision-making process.
We reviewed all comments, including comments received from the
public and peer reviewers during the comment periods, for substantive,
relevant issues and new data regarding critical habitat and Astragalus
lentiginosus var. coachellae. Peer reviewer comments are summarized and
addressed separately in the following section. Public comments are
grouped into three general issue categories relating to critical
habitat and the draft economic analysis and addressed in the Public
Comments section below.
Peer Review Comments
(1) Comment: A peer reviewer requested we clarify how critical
habitat may provide legal protection to a federally listed plant on
non-Federal lands. Specifically, they sought more information on
several matters, including: (1) Whether non-Federal landowners were
contacted about the proposed critical habitat designation and inquired
about their perspective of the proposal; (2) whether non-Federal
landowners are currently under any agreement with State, Federal, or
local governments for the conservation of this taxon; (3) an assessment
of how the proposed designation may open the Service to litigation for
designating critical habitat on non-Federal lands and increase
vandalism to plants on non-Federal lands.
Our Response: First, although some habitat containing features
essential to the conservation of Astragalus lentiginosus var.
coachellae were determined to occur on non-Federal lands, these lands
were excluded from critical habitat designation because of their
inclusion in the preferred alternative reserve design in the draft
Coachella Valley MSHCP/NCCP (CVMC 2004).
Second, we did not contact all non-Federal landowners whose
property contained habitat with features essential to the conservation
of this taxon. However, we did inform the public about the proposed
critical habitat designation through several local newspapers and with
a letter to elected officials and several local, State, Tribal, and
Federal agencies working in the Coachella Valley. We also are currently
working with non-Federal landowners whose property contains habitats
with features essential to the conservation of this taxon on the draft
Coachella Valley MSHCP/NCCP to conserve habitat for this taxon.
Third, it is not within the scope of a critical habitat designation
to determine whether a designation of critical habitat on non-Federal
lands will make the Service more vulnerable to litigation. As required
under section 4(b)(1)(A) of the Act, we use the best scientific data
available to determine areas that contain habitat with features
essential to the conservation of the species. Ownership of lands being
proposed as critical habitat is relevant to the Secretary's
consideration under 4(b)(2) of the Act of relevant factors such as the
economic impacts to landowners of designating such lands as critical
habitat. We also share concerns that designating critical habitat may
lead to an increase in vandalism of Astragalus lentiginosus var.
coachellae, as stated in our rule to list the species on October 6,
1998 (63 FR 53596). However, we anticipate that vandalism to this taxon
may not increase since we are working with non-Federal landowners on
the draft Coachella Valley MSHCP/NCCP and excluding lands that contain
habitat with features essential to the conservation of the species from
critical habitat. Furthermore, the draft Coachella Valley MSHCP/NCCP is
also proposing to protect reserve areas containing A. l. var.
coachellae with fencing and other forms of enforcement. These types of
actions under a comprehensive management plan offer more protections
for federally listed plants, such as A. l. var. coachellae, on non-
Federal lands than a critical habitat designation.
(2) Comment: A peer reviewer emphasized the importance of
protecting various types of habitat, including: (1) Currently
unoccupied habitat; (2) currently unoccupied habitat that was
historically occupied; (3) potential habitat downwind and downstream of
current populations; and (4) source sand areas that provide future
habitat in downwind and down-drainage areas. Another reviewer stated
that it was unclear in the proposed rule whether these areas were
included as critical habitat.
Our Response: First, the Act defines critical habitat as ``specific
areas within the geographical area occupied by the species, at the time
it is listed * * * 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.'' We
have identified all areas within the geographic range of the species
that are known to be occupied, contain features essential to the
conservation of Astragalus lentiginosus var. coachellae, and that may
require special management considerations or protection. It is not our
current policy to include all areas that could potentially provide
suitable habitat or are not known to be occupied, even if they were
historically occupied. Second, we agree with the reviewer that sand
source areas are important for the conservation of A. l. var.
coachellae. However, we have determined that the presence of active
sand dunes (primary constituent element (PCE) 1) is an essential
feature, and we have designated them as a PCE (see Primary Constituent
Elements for a detailed discussion). Therefore, Federal actions that
affect the sand transport system will indirectly affect critical
habitat. Because there is already a regulatory
[[Page 74115]]
mechanism within this designation, it is not necessary to designate the
sand source areas themselves. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases.
(3) Comment: A peer reviewer stated that one of the benefits of
designating critical habitat is that it helps in identifying extant
populations of Astragalus lentiginosus var. coachellae when initiating
Section 7 consultations.
Our Response: We agree with the reviewer that there is an
educational benefit of designating critical habitat because it
identifies areas that contain features essential to the conservation of
the species that may require special management protection or
considerations, and this may provide information to Federal agencies
required to consult with us on their actions.
(4) Comment: The same peer reviewer stated that another benefit of
designating critical habitat is identifying unoccupied areas that may
be important areas for supporting Astragalus lentiginosus var.
coachellae populations in the future.
Our Response: We agree with the reviewer that unoccupied areas may
be important for the recovery of the taxon by supporting future
Astragalus lentiginosus var. coachellae populations. However, it is not
the intent of the Act to designate critical habitat throughout a
taxon's entire range, including areas that potentially could be
occupied. We have identified areas known to be occupied at the time of
listing and known to be currently occupied that contain habitat with
features essential to the conservation of this taxon.
(5) Comment: A peer reviewer stated that it is beneficial to
exclude areas from critical habitat if the area is already protected
through the Federal or local government ownership as well as through
private reserves.
Our Response: We agree with the reviewer. A critical habitat
designation will not afford as much protection for an area containing
habitat with features essential to the conservation of Astragalus
lentiginosus var. coachellae as would be afforded under Federal, State,
Tribal, or local ownership provided the property is managed for the
conservation of this taxon. Also, under the definition of critical
habitat, we can only include lands in critical habitat if the essential
features may require special management considerations or protection.
Thus, we have excluded all areas containing features essential to the
conservation of this taxon due to their inclusion within conservation
areas that are or will be conserved and managed by Federal and local
governments (see section titled Application of Section 3(5)(A) and
Exclusions Under Section 4(b)(2) of the Act for a more detailed
discussion).
(6) Comment: A peer reviewer stated that designating only small
tracts of land as critical habitat may not be beneficial because of the
movement of suitable habitat through time due to wind and flooding,
thus resulting in these areas becoming unsuitable.
Our Response: First, as discussed above in Comment 5, we
have excluded in this final rule all areas that were proposed as
critical habitat. Second, the reason only small tracts of lands were
originally proposed as critical habitat was because larger adjacent
areas with habitat containing features essential to conservation of
this taxon were either excluded from the designation because they are
proposed for protection under the draft Coachella Valley MSHCP/NCCP. We
believe that these conservation practices will garner more conservation
benefits than a critical habitat designation (see section titled
Application of Section 3(5)(A) and Exclusions Under Section 4(b)(2) of
the Act for a more detailed discussion).
(7) Comment: A peer reviewer stated that there is value in the
process for determining critical habitat because it has allowed for an
assessment of areas with habitat that contain features essential to the
conservation of the taxon, even though not all these areas are being
proposed because they are being addressed in other management plans.
Our Response: We agree with the reviewer and have discussed this
later in the rule (see Relationship of Critical Habitat to the Pending
Coachella Valley Multiple Species Habitat Conservation Plan and Natural
Community Conservation Plan and Natural Community Conservation Plan
(MSHCP/NCCP) for a detailed discussion).
(8) Comment: A peer reviewer stated that there are many occurrences
of Astragalus lentiginosus var. coachellae on sites that are ``cut
off'' from sand sources by intervening land uses. The peer reviewer
suggests that the rule would be more clear if it described how long
these sites might be expected to support viable populations and whether
these occurrences can be meaningful to long-term conservation for the
plant, and whether management efforts could help protect these
populations.
Our Response: We agree with the reviewer that there are occurrences
of Astragalus lentiginosus var. coachellae that are now isolated from
the sand transport system and ``cut off'' from the sand sources that
maintain suitable habitat for this plant. The long-term viability of
these occurrences is reduced because there is little to no potential
that the natural ecological processes that maintain the habitat for A.
l. var. coachellae will return. The length of time that these isolated
occurrences will remain into the future depends upon a variety of site-
specific factors such as the degree of isolation from the sand
transport system, size and scale of the development that is blocking
the downstream movement of sediment, and the rate of sand loss around
the plant population. Management efforts may substitute for the natural
ecological processes by mechanically transferring sand to areas ``cut
off'' from sand sources. These management practices are discussed below
(see section titled Special Management Considerations or Protection).
(9) Comment: A peer reviewer questioned why there were no Agua
Caliente Reservation lands included within critical habitat if there
are significant populations on these lands.
Our Response: We recognize that important populations exist on Agua
Caliente Reservation lands in the Big Dune area. However, we determined
that these areas did not contain features essential to the conservation
of this taxon because the ecological processes that maintain suitable
habitat in this area from the Whitewater River sand transport system
have been compromised by development in Cathedral City. New eolian
sands are prevented by development from replenishing the Big Dune area.
We have determined that without these ecological processes the long-
term prospect of Astragalus lentiginosus var. coachellae populations in
this area is reduced.
(10) Comment: A peer reviewer stated that we should include a
discussion on the best and worst case scenarios for Astragalus
lentiginosus var. coachellae protections once the draft Coachella
Valley MSHCP/NCCP is finalized.
Our Response: The impacts and conservation measures provided for
Astragalus lentiginosus var. coachellae under the draft Coachella
Valley MSHCP/NCCP will be analyzed as part of a section 7 consultation
for the issuance of a section 10(a)(1)(B) permit to the Coachella
Valley Association of Governments (CVAG) and local jurisdictions. The
Service has not completed the section 7 consultation for this section
10 permit at this time. However, we are confident that CVAG will reach
a successful conclusion to its MSHCP/NCCP development process
[[Page 74116]]
and successfully conserve habitat for Astragalus lentiginosus var.
coachellae to meet the requirements outlined in section 10(a)(1)(B) of
the Act. The draft MSHCP/NCCP proposes to conserve 19,321 ac (7,819 ha)
of modeled A. l. var. coachellae habitat in their Conservation Areas
that includes large core habitat areas and other important conservation
areas, such as sand sources and sand transport corridors. Other goals
include: (1) Protecting other important conservation areas to allow for
population fluctuation and promote genetic diversity; (2) protecting
necessary ecological processes, including the sand transport systems,
that will be beneficial in maintaining the PCEs in the areas containing
features essential for the conservation of A. l. var. coachellae; (3)
maintaining biological corridors and linkages among all conserved
populations to the maximum extent feasible; and (4) ensuring
conservation of habitat quality through biological monitoring and
adaptive management actions. Therefore, we have excluded under section
4(b)(2) of the Act all lands containing features essential for the
conservation of A. l. var. coachellae within the Coachella Valley
MSHCP/NCCP plan area (see section titled Pending Coachella Valley
Multiple Species Habitat Conservation Plan and Natural Community
Conservation Plan MSHCP/NCCP for a more detailed discussion).
(11) Comment: A peer reviewer stated that we should include a
discussion on what options the Service has for conservation of
Astragalus lentiginosus var. coachellae if the draft Coachella Valley
MSHCP/NCCP is never finalized.
Our Response: In the absence of an approved Coachella Valley MSHCP/
NCCP, Astragalus lentiginosus var. coachellae would continue to receive
means for protection and be provided a program for its conservation
under the Act. Under section 4 of the Act, the Service would develop
and implement a recovery plan for A. l. var. coachellae, although there
are currently no plans by the Service to fund or finish preparing a
recovery plan. However, implementation of a recovery plan by
landowners, Federal agencies, and other parties is voluntary. Section
7(a)(1) of the Act calls for Federal agencies (including the Department
of the Interior), in consultation with and assistance from the
Secretary of the Interior, to utilize their authorities in furtherance
of the purposes of the Act. Section 7(a)(2) of the Act requires Federal
agencies to ensure that any Federal action would not likely jeopardize
the continued existence of the species or result in the destruction or
adverse modification of critical habitat. Section 9 of the Act includes
prohibitions on the removal and reduction to possession; maliciously
damaging or destroying, or removing, cutting, digging up, or damaging
or destroying in knowing violation of any state law; or in violation of
a state criminal trespass law of A. l. var. coachellae on Federal
lands.
The Bureau of Land Management (BLM) continues to manage Astragalus
lentiginosus var. coachellae under the California Desert Conservation
Act and other authorities, including section 7 of the Act. We have made
significant progress in completing the Coachella Valley MSHCP/NCCP and
we believe that the plan would provide a greater level of conservation
to A. l. var. coachellae than would sections 4, 7, and 9 of the Act by
themselves. The plan provides for the conservation of core habitat
areas and other conserved habitats that would benefit the species,
protects necessary ecological processes and biological corridors and
linkages, implements monitoring and management programs, and restricts
activities that result in adverse impacts to this plant.
(12) Comment: A peer reviewer stated that we should include a
discussion on the Service's authority (if any) to monitor compliance of
the Coachella Valley MSHCP/NCCP and ensure that conservation measures
for Astragalus lentiginosus var. coachellae are implemented as proposed
in the draft plan.
Our Response: Section 10(a)(2)(B) of the Act specifies that an
incidental take permit ``shall contain such terms and conditions as the
Secretary deems necessary or appropriate to carry out the purposes of
this paragraph, including, but not limited to, such reporting
requirements as the Secretary deems necessary for determining whether
such terms and conditions are being complied with.'' The draft
Coachella Valley MSHCP/NNCP includes monitoring and reporting
requirements that will be incorporated into any permit issued under the
plan.
(13) Comment: The same peer reviewer also stated that the Service
should describe any proposed monitoring or adaptive management in the
draft plan that might ensure adequate remedial work that will be done
if needed.
Our Response: The draft Coachella Valley MSHCP/NCCP follows an
adaptive management approach that involves development of objectives,
conceptual models of system dynamics, a monitoring program, and changes
to management based on monitoring results. The facets are interrelated
and their integration will test assumptions systematically in order to
adapt and learn.
(14) Comment: A peer reviewer stated that the Service's analysis of
the benefits of excluding lands covered under the draft Coachella
Valley MSHCP/NCCP did not present a cogent argument for why the
benefits of excluding critical habitat within the draft Coachella
Valley MSHCP/NCCP outweigh the benefits of inclusion.
Our Response: We believe that our argument for excluding non-
Federal lands within the draft Coachella Valley MSHCP/NCCP emphasizes
the point that benefits of a comprehensive management plan that covers
a federally listed plant on non-Federal lands will garner more
conservation benefits than designating critical habitat (see section
titled Relationship of Critical Habitat to the Pending Coachella Valley
Multiple Species Habitat Conservation Plan and Natural Community
Conservation Plan and Natural Community Conservation Plan (MSHCP/NCCP)
for a more detailed discussion).
Comments From the State
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.'' No
comments were received from the State regarding the proposal to
designate critical habitat for the Astragalus lentiginosus var.
coachellae.
Comments Related to the Process of Designating Critical Habitat
(15) Comment: One commenter stated that the Service failed to cite
any scientific evidence supporting our decision to exclude certain
areas with habitat containing features essential to the conservation of
the taxon from the critical habitat designation.
Our Response: Section 4(b)(2) of the Act allows us to consider the
economic, national security, and any other relevant impact of
specifying any particular area as critical habitat. An area may be
excluded from critical habitat if it is determined 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. As outlined in
the proposed rule, we determined the benefits of exclusion outweigh the
benefits of including lands covered by the draft Coachella Valley
MSHCP/NCCP. We have also clarified our determination that exclusion of
[[Page 74117]]
these areas will not result in extinction of the species (see section
titled Relationship of Critical Habitat to the Pending Coachella Valley
Multiple Species Habitat Conservation Plan and Natural Community
Conservation Plan and Natural Community Conservation Plan (MSHCP/NCCP)
for a more detailed discussion).
(16) Comment: A commenter contended that Habitat Conservation Plans
(HCPs: In this case the draft Coachella Valley MSHCP/NCCP) have very
different goals for species conservation than critical habitat
designations. HCPs allow for take of covered species, reducing species
numbers that are already in crisis of extinction even further and
further reducing listed species opportunity for recovery. Whereas, a
critical habitat designation and protection are meant to promote
recovery of the species (section 3(3) and 3(5) of the Act; F.3d 434 and
the August 6, 2004, Ninth Circuit judicial opinion, Gifford Pinchot
Task Force v. United State Fish and Wildlife Service). Furthermore,
under the Act, ``essential habitat'' and ``unoccupied areas'' that are
critical to the species survival and recovery have no legal definition
and therefore no legal standing under the law. As a result, the
commenter contended that by not designating critical habitat as
required, the Service is an abdication of responsibility to follow the
law.
Our Response: The Service has operated under the Secretary's
discretion to exclude areas from critical habitat if the benefits of
such exclusion outweigh the benefits of its inclusion. Section 4(b)(2)
of The Act states ``the Secretary shall designate critical habitat, and
make revisions thereto, under subsection (a)(3) on the basis of the
best scientific data available and after taking into consideration the
economic impact, and any other relevant impact, of specifying any
particular area as critical habitat. The Secretary may exclude any area
from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species concerned.''
The Service's exclusion of areas containing features essential to
the conservation of Astragalus lentiginosus var. coachellae from
critical habitat is based on the inclusion of these areas within
conservation areas of a nearly approved HCP. The benefits to A. l. var.
coachellae that are garnered from a HCP outweigh the benefits of
including these areas as designated critical habitat and applying
another regulatory hardship on HCP participants for lands that are
already or will conservation benefits for A. l. var. coachellae.
(17) Comment: A commenter stated that there is a benefit of having
designated critical habitat in excluded areas should the draft
Coachella Valley MSHCP/NCCP and Coachella Valley Fringe-Toed Lizard HCP
falter in their conservation mandate.
Our Response: If these HCPs were to fail in their conservation
mandate, it would be possible for the Service to re-propose these areas
for critical habitat designation. However, the Service has determined
that the benefits of designating critical habitat in these areas do not
outweigh the benefits of excluding these areas from designation while
these lands are covered under either the Coachella Valley MSHCP or the
Coachella Valley Fringe-Toed Lizard HCP, and therefore have excluded
these areas from designation.
(18) Comment: One commenter expressed their concern that any
designation of critical habitat within the draft Coachella Valley
MSHCP/NCCP Plan Area may jeopardize the participation by various cities
in the Plan.
Our Response: It is our determination that maintaining partnerships
in the planning process for the Coachella Valley MSHCP/NCCP will
provide a greater conservation benefit to Astragalus lentiginosus var.
coachellae than designating critical habitat on lands under these
partners' auspices and potentially losing their participation in the
Plan.
(19) Comment: A commenter stated that the proposed critical habitat
included only one of twenty-six Astragalus lentiginosus var. coachellae
locations recorded in the California Natural Diversity Database
(CNDDB). They also stated that it is unclear if the remaining locations
are within lands excluded from the designation, and commented that all
lands with habitat essential to the conservation of the taxon should be
included as critical habitat. They also stated excluding critical
habitat would hurt the recovery potential of the taxon.
Our Response: Ten of twenty-eight CNDDB records (there are 28
records rather than 26 as stated in the comment) were captured within
areas that we have determined contain features essential to the
conservation of this taxon. In determining these areas, it is important
not only to look at quantity of locations that were captured, but also
the quality of the locations that were captured. Several of the CNDDB
records are in habitats that are severely degraded due to significant
disturbance from nearby development. Additionally, in determining areas
containing essential features, we compiled a larger dataset of
Astragalus lentiginosus var. coachellae locations than just the CNDDB
records. It is evident from our data that we have captured a majority
of the high quality locations within areas possessing features
essential to the conservation of this taxon. High-quality locations
include those sites with PCEs and are within areas still functioning as
part of one of the three major sand transport systems in the Coachella
Valley. We believe we captured locations that have the best prognosis
for long-term survival and are the areas essential to the conservation
of the taxon. Our proposed rule for critical habitat designation of A.
l. var. coachellae clearly mapped areas that were being proposed as
critical habitat as well as areas that were proposed for exclusion. We
do not believe that it should have been confusing to determine as to
whether the CNDDB records were located either within proposed areas,
excluded areas, or areas not containing features essential to the
conservation of A. l. var. coachellae.
We also do not believe that all areas containing features essential
to the conservation of Astragalus lentiginosus var. coachellae should
be designated critical habitat if they are within areas that are
already receiving or will very likely receive management benefits to
this taxon (see section titled Application of Section 3(5)(A) and
Exclusions Under Section 4(b)(2) of the Act for a more detailed
discussion). On the same note, we do not believe that excluding
critical habitat based on existing or pending habitat conservation
plans would set back the recovery potential of A. l. var. coachellae
since these plans provide more conservation benefits than would be
provided by designating these areas as critical habitat. As a result,
we believe that the long-term partnerships that are formed by agreeing
to habitat conservation plans or other conservation plans that provide
conservation benefits to A. l. var. coachellae work more effectively
toward promoting the recovery of this taxon than would a critical
habitat designation.
(20) Comment: One commenter stated that the critical habitat
designation suffers from a lack of habitat connectivity.
Our Response: We recognize that habitat connectivity is an
important aspect of a critical habitat designation because this allows
for gene flow
[[Page 74118]]
between populations and recolonization of areas with endangered or
extirpated populations. We used the best available scientific data to
develop the criteria used to delineate critical habitat boundaries
associated with both recent occurrences and occurrences known at the
time of listing (see Criteria Used To Identify Critical Habitat). We
recognize that designation of critical habitat may not include all of
the habitat areas that may eventually be determined to be necessary for
the recovery of the species. For these reasons, critical habitat
designations do not signal that habitat outside the designation is
unimportant or may not be required for recovery.
Comments Related to Site-Specific Areas and Unoccupied Areas Identified
for Possible Inclusion
(21) Comment: One commenter requested that unoccupied areas
identified in the proposed rule as being important to maintain fluvial
and eolian processes be included as part of the final critical habitat
designation.
Our Response: See response to Comment 2 above.
(22) Comment: A commenter stated that not all Coachella Valley
Water District (CVWD) lands were excluded from the critical habitat
designation, possibly due to the Service's use of outdated parcel data.
Similarly, another commenter stated that we should remove all Granite
Construction Company property from critical habitat designation and
suggested that its inclusion may be due to errors in parcel data.
Our Response: We excluded all CVWD lands from critical habitat
because of their participation and anticipated signatory status in the
draft Coachella Valley MSHCP/NCCP planning process (see Discussion in
Relation of Critical Habitat to the Pending Coachella Valley Multiple
Species Habitat Conservation Plan/Natural Communities Conservation Plan
(MSHCP/NCCP)). The inclusion of CVWD property within the critical
habitat designation was an artifact of our mapping process during the
proposed rule for describing legal boundaries for areas with habitat
containing features essential for the conservation of this taxon. The
mapping process for the proposed rule overlaid a 100m by 100m grid on
areas containing essential features to create an outer boundary that
was used to describe the legal Universal Transverse Mercator (UTM)
coordinates. In some areas, this process captured excluded Water
District lands containing essential features for the conservation of
this taxon. We changed our mapping procedure for the final designation
and abandoned use of the grid system. Instead, the legal UTM
coordinates for the boundary of the critical habitat followed precisely
with the boundary of the areas containing essential features. As a
result, all CVWD lands containing features essential for the
conservation of this taxon were excluded from critical habitat
designation pursuant to section 4(b)(2) of the Act.
Granite Construction Company lands were also included within the
legal maps for the same reasons. After the change in our mapping
process for the final designation, Granite Construction Company lands
are no longer in critical habitat because they do not contain habitat
with features essential to the conservation of this taxon.
(23) Comment: Two commenters requested that BLM lands north of the
percolation ponds be removed from critical habitat because it is not
suitable habitat. One of these commenters also requested that all
remaining BLM lands within the draft Coachella Valley MSHCP/NCCP Plan
be excluded from critical habitat because the BLM's California Desert
Conservation Area Plan Amendment (CDCAPA) for the Coachella Valley
already requires BLM to manage their lands consistent with the
Coachella Valley MSHCP/NCCP.
Our Response: We agree with the commenter and all BLM lands that
were proposed as critical habitat are excluded from designation in this
final rule based on BLM's commitment under their CDCAPA to manage their
lands consistent with the draft Coachella Valley MSHCP once it is
completed (see section titled Relationship of Critical Habitat to the
Pending Coachella Valley Multiple Species Habitat Conservation Plan and
Natural Community Conservation Plan and Natural Community Conservation
Plan (MSHCP/NCCP) for a more detailed discussion).
(24) Comment: One commenter stated that the Astragalus lentiginosus
var. coachellae population located north of Desert Center also be
included as critical habitat since it represents an important
peripheral population. The commenter also discusses other peripheral
populations that were not included.
Our Response: Although the Astragalus lentiginosus var. coachellae
population in Desert Center appears unusual because it is so disjunct
from the main center of the taxon's range, we do not have any
information indicating that this population has special demographic,
ecological, or genetic significance. It is not the intent of the Act to
include every population throughout a species' range within critical
habitat. The commenters did not provide information indicating the
significance of the Desert Center population or what other peripheral
populations should have been included within critical habitat.
(25) Comment: A commenter requested clarification on the area of
proposed critical habitat in Unit 1 outside the bounds of the
Whitewater Floodplain Conservation Area (southeast of the Conservation
Area).
Our Response: This area has been determined to not contain features
essential to the conservation of Astragalus lentiginosus var.
coachellae and has been removed from critical habitat.
Comments Related to the Draft Economic Analysis
(26) Comment: A commenter stated that the draft economic analysis
(DEA) should have included an analysis of benefits, such as maintaining
natural flood control processes along waterways, amenity values, open
space, flood/drought mitigation, and detoxification and decomposition
of wastes.
Our Response: In the context of a critical habitat designation, the
primary purpose of the rulemaking (i.e., the direct benefit) is to
designate areas in need of special management that contain the features
that are essential to the conservation of listed species.
The designation of critical habitat may result in two distinct
categories of benefits to society: (1) Use; and (2) non-use benefits.
Use benefits are simply the social benefits that accrue from the
physical use of a resource. Visiting critical habitat to see endangered
species in their natural habitat would be a primary example. Non-use
benefits, in contrast, represent welfare gains from ``just knowing''
that a particular listed species' natural habitat is being specially
managed for the survival and recovery of that species. Both use and
non-use benefits may occur unaccompanied by any market transactions.
A primary reason for conducting this analysis is to provide
information regarding the economic impacts associated with a proposed
critical habitat designation. Section 4(b)(2) of the Act requires the
Secretary to designate critical habitat based on the best scientific
data available after taking into consideration the economic impact, and
any other relevant impact, of specifying any particular area as
critical habitat. Economic impacts can be both positive and negative
and by definition,
[[Page 74119]]
are observable through market transactions.
Where data are available, this analysis attempts to recognize and
measure the net economic impact of the proposed designation. For
example, if the fencing of a species' habitat to restrict motor
vehicles results in an increase in the number of individuals visiting
the site for wildlife viewing, then the analysis would recognize the
potential for a positive economic impact and attempt to quantify the
effect (e.g., impacts that would be associated with an increase in
tourism spending by wildlife viewers). In this particular instance,
however, the economic analysis did not identify any credible estimates
or measures of positive economic impacts that could offset some of the
negative economic impacts analyzed earlier in this analysis.
Under Executive Order 12866, OMB directs Federal agencies to
provide an assessment of both the social costs and benefits of proposed
regulatory actions. OMB's Circular A-4 distinguishes two types of
economic benefits: direct benefits and ancillary benefits. Ancillary
benefits are defined as favorable impacts of a rulemaking that are
typically unrelated, or secondary, to the statutory purpose of the
rulemaking. In the context of critical habitat, the primary purpose of
the rulemaking (i.e., the direct benefit) is the potential to enhance
conservation of the species. The published economics literature has
documented that social welfare benefits can result from the
conservation and recovery of endangered and threatened species. In its
guidance for implementing Executive Order 12866, OMB acknowledges that
it may not be feasible to monetize, or even quantify, the benefits of
environmental regulations due to either an absence of defensible,
relevant studies or a lack of resources on the implementing agency's
part to conduct new research. Rather than rely on economic measures,
the Service believes that the direct benefits of the proposed rule are
best expressed in biological terms that can be weighed against the
expected cost impacts of the rulemaking.
We have accordingly considered, in evaluating the benefits of
excluding versus including specific area, the biological benefits that
may occur to a species from designation (see below, Exclusions Under
section 4(b)(2) of the Act), but these biological benefits are not
addressed in the economic analysis.
(27) Comment: The same commenter objected to the attribution of
conservation costs that benefit multiple sympatric species solely to
Astragalus lentiginosus var. coachellae in the DEA.
Our Response: The DEA discusses other relevant regulations and
protection efforts for other listed species that include Astragalus
lentiginosus var. coachellae and its habitat. In general, the analysis
errs conservatively in order to make certain the economic effects have
not been missed. It treats as ``coextensive'' other Federal and State
requirements that may result in overlapping protection measures (e.g.,
California Environmental Quality Act) for the plant. The economic
analysis distributes the cost of conserving A. l. var. coachellae
habitat equally among the number of other listed species likely to co-
exist with A. l. var. coachellae as indicated by the historical
consultations. None of the past A. l. var. coachellae consultations
focused solely on A. l. var. coachellae but rather on other listed and
sensitive species co-occurring in the area. Within a biological opinion
or HCP that covers several species, we are unable to accurately
segregate out the cost for an individual species from the rest of the
species covered in the biological opinion or HCP.
(28) Comment: The same commenter stated that the DEA does not make
a distinction between the costs of listing the species under the Act
versus designating critical habitat.
Our Response: The economic analysis is intended to assist the
Secretary in determining whether the benefits of excluding particular
areas from the designation outweigh the biological benefits of
including those areas in the designation. Also, this information allows
us to comply with direction from the U.S. 10th Circuit Court of Appeals
that ``co-extensive'' effects should be included in the economic
analysis to inform decision-makers regarding which areas to designate
as critical habitat (New Mexico Cattle Growers Association v. U.S. Fish
and Wildlife Service (248 F.3d 1277)).
This analysis identifies those potential activities believed to be
most likely to threaten Astragalus lentiginosus var. coachellae and its
habitat and, where possible, quantifies the economic impact to avoid,
mitigate, or compensate for such threats within the boundaries of the
critical habitat designation. Where critical habitat is being proposed
after a species is listed, some future impacts may be unavoidable,
regardless of the final designation and exclusions under section
4(b)(2). However, due to the difficulty in making a credible
distinction between listing and critical habitat effects within
critical habitat boundaries, this analysis considers all future
conservation-related impacts to be co-extensive with the designation.
(29) Comment: A commenter contended that pre-designation impacts
are attributed to the listing of the species and not critical habitat,
and therefore should not be included in the DEA.
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. coachellae. The
Act defines critical habitat to mean those specific areas that are
essential to the conservation of the species. The Act also 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 the Act to mean 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, that 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.
(30) Comment: A commenter questioned the framework for quantifying
conservation-related costs in the DEA of critical habitat for
Astragalus lentiginosus var. coachellae for flood control projects,
local transportation projects, California Department of Transportation
(Caltrans) mitigation, and all other projects within the boundaries of
the draft Coachella Valley MSHCP/NCCP as these projects and the costs
associated with them are covered under the draft Coachella Valley
MSHCP/NCCP.
Our Response: As described in Section 8.6.2 of the DEA, the post-
designation Coachella Valley MSHCP/NCCP costs captured by the DEA
include management, monitoring, and administration of the Coachella
Valley MSHCP/NCCP reserve system. These costs are calculated and
allocated based on the rate of projected development within the units.
Other non-development related activities also contribute funds toward
the management, monitoring and management of the Coachella Valley
MSHCP/NCCP. As described in Section 6.1.2.2 of the DEA, CVAG, the joint
[[Page 74120]]
powers authority functioning as lead agency for the preparation of the
draft Coachella Valley MSHCP/NCCP, is expected to contribute
approximately $1 million toward management, monitoring, and
administration of the Coachella Valley MSHCP/NCCP for transportation
projects. The costs related to these transportation projects are not
captured in the estimated Coachella Valley MSHCP/NCCP costs.
Furthermore, as described in Sections 6.1.2.3 and 8.1.1.2 of the DEA,
the costs captured in the DEA for Caltrans mitigation and flood control
are related to land acquisitions, and land acquisition costs were not
captured in the estimated Coachella Valley MSHCP/NCCP costs. The
Coachella Valley MSHCP/NCCP costs estimated in the DEA include
management, monitoring, and administration of the Coachella Valley
MSHCP/NCCP reserve system.
(31) Comment: The same commenter questioned the use of cost
information from the draft Coachella Valley MSHCP/NCCP in the DEA since
the Coachella Valley MSHCP/NCCP is not yet finalized and will not be
prior to final designation of critical habitat for Astragalus
lentiginosus var. coachellae.
Our Response: As described in Section 1.3 of the DEA, estimates of
post-designation effects are based on activities that are ``reasonably
foreseeable,'' including, but not limited to, activities that are
currently authorized, permitted, or funded, or for which proposed plans
are currently available to the public. The draft Coachella Valley
MSHCP/NCCP falls under this latter category. While in draft form,
planning and development of the Coachella Valley MSHCP/NCCP began 12
years ago in 1994, and it is anticipated that the Coachella Valley
MSHCP/NCCP will become permitted by year-end 2005. Furthermore, as
described in response to Issue 1, considering the Coachella Valley
MSHCP/NCCP costs captured by the DEA are separate from the estimated
non-development-related costs, there are no double counting issues.
(32) Comment: A commenter questioned the consistency in the
allocation of habitat conservation plan-related costs to Astragalus
lentiginosus var. coachellae in the DEA. In particular, the commenter
questioned why conservation costs to develop the Agua Caliente Band of
Cahuilla Indians HCP were not allocated to costs of critical habitat
for Astragalus lentiginosus var. coachellae.
Our Response: As described in Section 3.4 of the DEA, a draft HCP
proposing coverage for 24 species, including Astragalus lentiginosus
var. coachellae, has been developed for the Agua Caliente Indian
Reservation. In the proposed rule, we did not identify habitat on Agua
Caliente Tribal lands as containing features essential for the
conservation of the Astragalus lentiginosus var. coachellae, thus, no
pre or post-designation costs are estimated on Tribal lands as
associated with the critical habitat designation.
(33) Comment: A commenter questioned the relevancy of some of the
development-related Astragalus lentiginosus var. coachellae
conservation costs described in Table 13. Specifically, the commenter
questioned the inclusion of costs that do not directly or indirectly
benefit A. l. var. coachellae.
Our Response: As described in Section 5.1 of the DEA, the section 7
consultation history involving Astragalus lentiginosus var. coachellae
and development projects was reviewed. The consultation history for A.
l. var. coachellae provides the types of conservation activities
incurred by developers for conserving A. l. var. coachellae and its
habitat. The costs associated with these consultations are not included
in the DEA as these projects occurred in areas not identified in the
proposed CHD. However, the information on the conservation activities
is provided for background information on conservation efforts for the
species and its habitat. Furthermore, while the commenters do not cite
specific examples of costs included in the analysis that do not
directly or indirectly benefit A. l. var. coachellae, this analysis
does not include conservation costs for activities that do not benefit
A. l. var. coachellae.
(34) Comment: A commenter questioned the DEA's derivation of the
``not allocated'' pre-designation costs of conserving Astragalus
lentiginosus var. coachellae incurred by development in essential
habitat in Table 15 of the DEA.
Our Response: The commenter is correct; Section 5.1.4 and Table 15
in the DEA are incorrect. Based on the consultation history for
Astragalus lentiginosus var. coachellae, there have been five informal
consultations and one formal consultation where the project proponent
was required to implement A. l. var. coachellae conservation efforts.
However, because these projects occurred in areas not identified in the
proposed critical habitat designation, costs associated with these
consultations are not included in this analysis. While the text and
table in Section 5.1.4 of the DEA describe and estimate pre-designation
costs for these projects, the remaining tables and text appropriately
do not include these impacts. The final economic analysis will update
Section 5.1.4 and Table 15 to exclude these costs; however, the final
results of the report are not changed by this comment.
(35) Comment: A commenter asserted that the methodology used to
quantify development impacts in the DEA is questionable as it assumes
that habitat will be destroyed and it does not examine the ability of
habitat to be acquired.
Our Response: Section 2.2.2.1 of the DEA describes the model
applied to estimate impacts to development. The draft Coachella Valley
MSHCP/NCCP has proposed implementation of a one-time mitigation fee for
future development within the boundaries of the Coachella Valley MSHCP/
NCCP. These funds will be used by the County to finance the future
acquisition of lands for the Coachella Valley MSHCP/NCCP reserve and
are captured by the DEA (Section 5.2.1). The DEA assumes that
development is allowed in habitat areas if appropriate mitigation fees
paid. That is, this open city modeling approach assumes that land is
not lost to development, but instead that development occurs with
mitigation, for example, preserving habitat outside the footprint of
the development project. It is uncertain which specific areas
containing essential features may be developed during the forecast
period and when those areas may be developed. By assuming that all
future development is allowed in habitat areas with appropriate
mitigation fees, the DEA captures the cost to development projects of
protecting the plant and its habitat.
(36) Comment: A commenter requested clarification on whether the
Whitewater River/Thousand Palms Flood Control project is covered under
the draft Coachella Valley MSHCP/NCCP, if it is on hold due to lack of
funding, or if it is moving forward.
Our Response: As described in Section 8.2.1 of the DEA,
``Currently, the flood control project has been delayed due to a lack
of funding for the project. Therefore, at this time it is not possible
to determine what, if any, additional measures may be required due to
the proposed project redesign. However, the flood control project is a
``Covered Activity'' in the draft Coachella Valley MSHCP.''
(37) Comment: A commenter questioned the ``not allocated'' pre-
designation costs in Table 27 of the DEA of conserving Astragalus
lentiginosus var. coachellae incurred by the BLM in areas containing
features essential to the conservation of A. l. var. coachellae.
[[Page 74121]]
Our Response: The commenter identified a mistake in Table 27 of the
DEA. These costs occurred in areas not identified in the proposed
critical habitat designation and should not be included in this Table.
The remaining tables and text in the DEA appropriately do not include
these impacts. The final economic analysis will update Table 27 to
exclude these costs; however, the final results of the report are not
changed by this comment.
(38) Comment: A commenter stated the cost model used in the DEA to
estimate the administrative cost of section 7 consultation is highly
inflated.
Our Response: As described in Section 2.2 of the DEA, the cost
model is based on a survey of Federal agencies and Service Field
Offices across the country and the costs are believed to be
representative of the typical range of costs of the section 7
consultation process. Throughout the development of the DEA,
stakeholders were asked whether the range of estimated consultation
costs was reasonable. In the case that stakeholders anticipated higher
or lower costs, this improved information would be applied in the DEA.
No stakeholders indicated, however, that the range of costs applied in
the DEA was inappropriate.
(39) Comment: A commenter stated that the cost estimates of species
conservation as provided in the DEA conflict with the cost estimated in
the draft Coachella Valley MSHCP/NCCP. Therefore, either the DEA or the
draft Coachella Valley MSHCP/NCCP contains errors in its impact
estimates.
Our Response: Section E.S.5 of the draft Coachella Valley MSHCP/
NCCP summarizes the costs of implementing the plan, including non-
acquisition program administration costs, Monitoring Program,
Management Program, and Adaptive Management Costs, and land acquisition
and land improvement costs. The draft Coachella Valley MSHCP/NCCP
estimates these costs will total almost $1.5 billion during the first
75 years of implementing the Coachella Valley MSHCP/NCCP. This impact
estimate, however, is not directly comparable to that in the DEA as the
policy actions being analyzed are different. The draft Coachella Valley
MSHCP/NCCP estimates the cost of acquiring and managing its reserve
area and conservation actions for the multiple species covered under
the plan. Further, the geographic scope of the draft Coachella Valley
MSHCP/NCCP and the areas designated as critical habitat for Astragalus
lentiginosus var. coachellae are different.
(40) Comment: A commenter questioned the use of ``low income
farmers'' as an example of a group that may be adversely affected by
species conservation in Section 1.1 of the DEA. The commenter stated
that no Federal nexus exists for farming activity and therefore farming
is exempt from any regulation by the Endangered Species Act.
Our Response: As described in Appendix A of the DEA, approximately
39 ac (16 ha ) of private lands in Units 1 and 2 are classified as
agriculture land and were included in proposed critical habitat. While
the number of agriculture acres was negligible in the proposed rule,
and actually not designated as critical habitat in the final rule, the
use of farmers as an example of a group of individuals that could be
impacted in Section 1.1 of the DEA is simply for illustrative purposes
and is considered appropriate. In addition, while a Federal nexus may
not exist for farming activities, the DEA quantifies coextensive
effects. As defined in Section 1.2, the DEA estimates impacts
associated with overlapping protective measures of other Federal,
State, and local laws that aid habitat conservation in the areas
proposed for designation.
(41) Comment: A commenter requested that a more equitable input-
output model be used to evaluate the regional economic effects in the
DEA.
Our Response: As described in Section 1.1.2.2 of the DEA, it was
assumed that development is not restricted by critical habitat
designation, but that developers will instead mitigate their activities
through mitigation fee payments to address Astragalus lentiginosus var.
coachellae conservation concerns. Therefore, regional economic impacts
are not expected as a result of A. l. var. coachellae conservation
efforts.
(42) Comment: A commenter mentioned that critical habitat for
plants has no jurisdiction on private lands that lack a federal nexus
and that the DEA does not address this issue.
Our Response: As described in Section 2.2.2 of the DEA, the
critical habitat designation for Astragalus lentiginosus var.
coachellae or any other threatened or endangered species has the
potential to impose costs on private individuals or groups of
individuals if there is a connection or nexus between private
activities and Federal actions. For example, if a Federal permit is
required before developers can begin construction or if there is
Federal funding for a private activity, then it is possible that the
provisions of the Act, including critical habitat designation, may
potentially restrict private actions if the action results in a section
7 consultation. This analysis appropriately identifies and analyzes
economic impacts on activities that may occur on private lands within
the proposed critical habitat areas. Furthermore, the DEA is not
limited to only those activities with a Federal nexus. As described in
Section 1.1, the DEA quantifies costs associated with measures taken to
protect the species and its habitat, not just section 7-related costs.
(43) Comment: A commenter stated Section 4.3.2 of the DEA must be
modified to clarify that benefits are limited to areas where Astragalus
lentiginosus var. coachellae and fringe-toed lizard are sympatric, not
through the whole range of A. l. var. coachellae.
Our Response: This comment clarifies statements in the DEA on page
46. This comment does not change the results of the report.
Summary of Changes From the Proposed Rule
In developing the final designation of critical habitat for
Astragalus lentiginosus var. coachellae, we reviewed peer and public
comments received on the proposed designation of critical habitat
published on December 14, 2004 (69 FR 74468) and draft economic
analysis published on September 27, 2005 (70 FR 56434); conducted
further evaluation of lands proposed as critical habitat; updated our
mapping parcel data; and were more precise with our mapping.
We modified our mapping process in the final rule from the proposed
rule to remove 675 ac (272 ha) of Service's Refuge lands and private
lands that were inadvertently proposed as critical habitat. These lands
were either already excluded from critical habitat under section
4(b)(2) of the Act or did not contain features essential for the
conservation of Astragalus lentiginosus var. coachellae. In the
proposed rule, we used a process that overlaid a grid on areas
containing features essential for the conservation of A. l. var.
coachellae in order to produce legal Universal Transverse Mercator
(UTM) coordinates that represented the critical habitat boundaries.
This gridding process extended the legal boundaries beyond the
boundaries of the areas containing essential features and consequently
included private lands that did not contain essential features or
included private lands and Service Refuge lands that contained
essential features, but were intended to be excluded under section
4(b)(2) of the Act. For the final designation, we have abandoned the
use of the gridding process and have based
[[Page 74122]]
the legal coordinates precisely on the boundaries of the areas
containing essential features. Based on this mapping modification, we
removed all proposed private and Service Refuge lands (675 ac (272 ha))
from critical habitat.
In addition to the non-Federal lands that were excluded pursuant to
section 4(b)(2) of the Act based on their coverage under the draft
Coachella Valley MSHCP/NCCP, we have also excluded BLM lands that were
proposed as critical habitat. BLM is an official cooperator with the
Coachella Valley MSHCP/NCCP and has committed to manage their lands
consistent with the MSHCP/NCCP under their California Desert
Conservation Area Plan Amendment for the Coachella Valley that was
signed in 2002 (see section titled Pending Coachella Valley Multiple
Species Habitat Conservation Plan and Natural Community Conservation
Plan (MSHCP/NCCP for a more detailed discussion).
We have also determined that BLM and Service Refuge (Coachella
Valley National Wildlife Refuge) lands within the Coachella Valley
Preserve System do not meet the definition of critical habitat under
section 3(5)(A) of the Act since these lands may not require special
management considerations due to their inclusion and management within
the Coachella Valley Preserve System under the Coachella Valley Fringe-
Toed Lizard HCP. Both the BLM and the Service entered into an MOU with
the Coachella Valley Fringe-Toed Lizard HCP in 1986 that defined their
roles and responsibilities for managing their lands within the
Coachella Valley Preserve System. Conservation measures outlined in the
Coachella Valley Fringe-Toed Lizard HCP also benefit Astragalus
lentiginosus var. coachellae since it has similar habitat requirements
as the Coachella Valley fringe-toed lizard for sandy soils. Based on
this HCP and MOU, we have not included 3,527 ac (1,427 ha) of Service
Refuge lands from Unit 3 and 128 ac (52 ha) of BLM lands from all three
units (see section titled Relationship of Critical Habitat to Federal
Lands within the Coachella Valley Fringe-Toed Lizard HCP--Application
of Section 3(5)(A) of the Act for a more detailed discussion). Table 1
reflects the changes made in this final rule and outlines the total
area containing habitat with features essential to the conservation of
A. l. var. coachellae, areas excluded from final critical habitat under
the pending Coachella Valley MSHCP/NCCP or not included based on the
approved Coachella Valley Fringe-Toed Lizard HCP, and total area
designated as final critical habitat.
TABLE 1.--Total Area Containing Habitat With Essential Features, Areas Excluded From Final Critical Habitat
Under the Pending Coachella Valley MSHCP/NCCP, and Areas Not Included as Critical Habitat Within the Coachella
Valley Preserve System Under the Coachella Valley Fringe-Toed Lizard HCP, and Total Area Designated as Final
Critical Habitat for Astragalus lentiginosus var. coachellae (ac/ha)
----------------------------------------------------------------------------------------------------------------
Total area Area not included Total area
containing habitat Area excluded under under Coachella designated as
Critical habitat unit with essential pending Coachella Valley Fringe-Toed final critical
features Valley MSHCP/NCCP Lizard HCP habitat
----------------------------------------------------------------------------------------------------------------
1. Whitewater River System..... 8,210 ac........... 8,188 ac.......... 22 ac............. 0 ac.
(3,323 ha)......... (3,314 ha)......... (9 ha)............. (0 ha).
2. Mission Creek/Morongo Wash 4,699 ac........... 4,607 ac.......... 92 ac............. 0 ac.
System. (1,901 ha)......... (1,864 ha)......... (37 ha)............ (0 ha).
3. Thousand Palms System....... 4,837 ac........... 1,296 ac.......... 3,541 ac.......... 0 ac.
(1,958 ha)......... (525 ha)........... (1,433 ha)......... (0 ha).
----------------------
Total...................... 17,746 ac......... 14,091 ac......... 3,655 ac.......... 0 ac.
(7,182 ha)......... (5,703 ha)......... (1,480 ha)......... (0 ha).
----------------------------------------------------------------------------------------------------------------
In the proposed rule we requested comment on the potential
inclusion of unoccupied sand source areas downwind and downstream of
suitable habitat. We received feedback from three commenters, all of
whom supported including these areas in the critical habitat
designation as areas containing habitat with features essential to the
conservation of the taxon. We acknowledge the importance of sand to
this species in the Primary Constituent Elements section and have
determined that inclusion of the sand sources areas in the final
critical habitat designation is not essential to the conservation of
the species as these areas are both unoccupied and unsuitable for
Astragalus lentiginosus var. coachellae. Finally, the draft Coachella
Valley MSHCP/NCCP is proposing to protect sand source areas in a way
that will benefit A. l. var. coachellae.
Our Primary Constituent Elements have been revised to reflect only
features essential for the conservation of Astragalus lentiginosus var.
coachellae on lands that are occupied by this taxon and on which we are
designating critical habitat. The Primary Constituent Elements in the
proposed rule included features that occurred only on lands that are
not expected to ever be occupied by A. l. var. coachellae (sand source
areas), and which we do not consider to be essential to the
conservation of this species.
We have included a discussion in the Section 7 Consultation section
that explains the relationship between critical habitat and BLM
activities that are covered under their California Desert Conservation
Area Plan.
We changed the land ownership data in GIS for the final rule. We
determined that the ownership data provided by the CVAG is superior to
the State ownership data that was used in the proposed rule because it
is a region-specific dataset that is currently being used in land
management planning for the Coachella Valley region. This changed the
land ownership classification for areas in the proposed rule that were
thought to be State Lands Commission lands. These lands were
reclassified in the final rule as either private or CVWD lands under
the CVAG's dataset. Because of our section 4(b)(2) exclusion
determinations
[[Page 74123]]
for this designation, lands under these ownerships were excluded from
critical habitat designation.
Critical Habitat
Critical habitat is defined in section 3 of the Act as--(i) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographical 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, as defined under section 3 of the Act means
to use and the use of all methods and procedures which are necessary to
bring any endangered species or threatened species to the point at
which the measures provided pursuant to the Act are no longer
necessary. Such methods and procedures include, but are not limited to,
all activities associated with scientific resources management such as
research, census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given ecosystem
cannot be otherwise relieved, may include regulated taking.
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. Section 7 is a
purely protective measure and does not require implementation of
restoration, recovery, or enhancement measures.
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 using the best scientific
data available, habitat areas that provide essential life cycle needs
of the species (i.e., areas on which are found the primary constituent
elements, as defined at 50 CFR 424.12(b)).
Habitat occupied at the time of listing 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).) Accordingly, when the best available scientific data
do not demonstrate that the conservation needs of the species require
additional areas, we will not designate critical habitat in areas
outside the geographical area occupied by the species at the time of
listing. An area currently occupied by the species but was not known to
be occupied at the time of listing will likely, but not always, be
essential to the conservation of the species and, therefore, typically
included in the critical habitat designation.
The Service's 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 the associated Information Quality Guidelines issued by the
Service, provide criteria, establish procedures, and provide guidance
to ensure that decisions made by the Service represent the best
scientific data available. They require Service biologists to the
extent consistent with the Act and with the use of the best scientific
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 the associated Information Quality Guidelines
issued by the Service.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available information
at the time of the action. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.
Methods
As required by section 4(b)(1)(A) of the Act, we use the best
scientific data available in determining areas that are essential to
the conservation of Astragalus lentiginosus var. coachellae. This
includes information from our own documents, including the final rule
listing the taxon as endangered (63 FR 53596), recent biological
surveys, reports, aerial photos, and other documentation. We also used
the habitat model developed by the Coachella Valley Mountain
Conservancy (CVMC) for the proposed Coachella Valley MSHCP/NCCP (CVMC
2004), as a starting point for identification of areas with habitat
that contain features essential to the conservation of this taxon and
compared it to data from other plant surveys.
We have also reviewed available information that pertains to the
habitat requirements of this species. We used published historical
surveys for Astragalus lentiginosus var. coachellae and ecological
descriptions of the Sonoran Desert (Abrams 1944, Munz and Keck 1959,
Shreve and Wiggins 1964, Turner and Brown 1982, Holland 1986) to
describe the range of environmental conditions in which the plant
existed prior to current landscape changes that have resulted in the
loss of the species' habitats. We used data in
[[Page 74124]]
reports submitted during section 7 consultations and by biologists
holding section 10(a)(1)(A) recovery permits to evaluate the habitat
model developed for the plant (Sanders and Thomas Olsen Associates
1996, Service unpublished Geographic Information System (GIS) data). We
also used agency and academic reports to describe the sand transport
systems (Lancaster et al 1993, Griffiths et al. 2002) and used reports
about related varieties of Astragalus lentiginosus to describe its
ecology and phenology (Beatley 1974, Forseth et al. 1984, and Pavlik
1985). Finally, we used information and materials submitted during the
public comment period for the proposed critical habitat rule.
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 designate as critical
habitat that were within the geographic area occupied by the species at
the time of listing, we are required to base critical habitat
determinations on the best scientific data available and to consider
those physical and biological features (primary constituent elements
(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.
The primary constituent elements essential to the conservation of
Astragalus lentiginosus var. coachellae are derived from the physical
and biological features that are essential to the conservation of this
taxon as described below.
Space for Individual and Population Growth Within the Eolian (Wind-
Blown) Sand Transport System
Astragalus lentiginosus var. coachellae has a limited distribution.
The majority of populations are found in the Coachella Valley area,
mostly in and around Snow Creek, Whitewater River, Mission and Morongo
Creeks, Willow Hole, Big Dune, and Coachella Valley Preserve areas
(Bureau of Land Management, unpublished data 2001b). There are also
several historic and recent records southeast of the Coachella Valley
in the Chuckwalla Valley, along approximately a 5-mile portion of
Highway 177 northeast of Desert Center (Bureau of Land Management,
unpublished data 2001a).
Astragalus lentiginosus var. coachellae populations in the
Coachella Valley are strongly affiliated with active, stabilized, and
shielded sandy substrates (Holland 1986, Sanders and Thomas Olsen
Associates 1996). This taxon is primarily found on loose eolian (wind
transported) and rarely on alluvial (water transported) sands that are
located on dunes or flats, and along disturbed margins of washes
(Barneby 1964). The highest densities of A. l. var. coachellae have
been found in locations containing large deposits of eolian sand,
including Snow Creek (Sanders and Thomas Olsen Associates 1996), Big
Dune, and Willow Hole areas (Bureau of Land Management, unpublished
data 2001b).
The sandy substrates that provide suitable habitat for Astragalus
lentiginosus var. coachellae are extremely dynamic in terms of spatial
mobility and tendency to change back and forth from active to
stabilized (Lancaster 1995). This has significant consequences for A.
l. var. coachellae because their population densities vary with
different types of sandy substrates. For instance, the greatest
densities of plants have been recorded on dune and hummock habitats,
such as Big Dune, Snow Creek and Willow Hole, whereas smaller densities
of plants have been recorded on stabilized sand fields (Bureau of Land
Management, unpublished GIS data 2001b). Conserving a wide variety of
sandy substrate types is important for the conservation of A. l. var.
coachellae because of the dynamics of the eolian sand transport
processes.
Active dunes are generally characterized as barren expanses of
moving sand where perennial shrub species are sparse. These dunes may
intergrade with stabilized or partially stabilized dunes, which have
similar sand accumulations and formations, but are stabilized by
evergreen or deciduous shrubs, scattered low annuals, and perennial
grasses.
Active sand fields are similar to active dunes, but are
characterized as smaller sand accumulations that are not of sufficient
depth to form dune formations. These may be characterized as hummocks
forming behind individual shrubs or clumps of vegetation.
Stabilized sand fields are similar to active sand fields, but
contain sand accumulations that are stabilized by vegetation or are
armored. Armoring is the process where the wind picks up and moves
small sand grains, and leaves behind larger sand grains forming an
``armor'' that prevents wind from moving additional smaller particles
trapped below (Sharp and Saunders 1978). The stabilized sand fields in
the latter case are temporary, becoming active when the armor is
disturbed over large areas, or new blow sand is deposited from upwind
fluvial depositional areas.
Astragalus lentiginosus var. coachellae is also found in shielded
sand dunes and fields. These areas have similar sand formations as
compared to active and stabilized sand dunes and fields, except that
sand source and transport systems that would normally replenish these
areas have been interrupted or shielded by human development.
Astragalus lentiginosus var. coachellae also occurs in localized
patches of eolian sand or in active washes that are, in some cases,
fairly distant from large dunes or sand field areas. Some of these
localized patches of eolian sands are characterized as ephemeral sand
accumulations lacking dune formation. This type of habitat generally
occurs at the western end of the Coachella Valley where wind velocities
are highest (Sharp and Saunders 1978).
Astragalus lentiginosus var. coachellae fruiting bodies are
inflated, an apparent adaptation for being dispersed by wind.
Protecting wind transport corridors between A. l. var. coachellae
populations from obstruction is important for allowing inflated fruit
pods to disperse to other areas and promote gene flow among
populations. Protecting these corridors is also important for allowing
pollinators to reach different populations and presumably assist in
also maintaining gene flow. Finally, some of the fine sands blowing
across the corridor are deposited and occasionally accumulate and serve
as ephemeral habitat.
Primary Constituent Elements for Astragalus lentiginosus var.
coachellae
Based on our current knowledge of the life history, biology, and
ecology of the species and the requirements of the habitat to sustain
the essential life history functions of the species, we have determined
that Astragalus lentiginosus var. coachellae's primary constituent
elements are:
1. Active sand dunes, characterized as large accumulations of
moving sand with sparse perennial shrub cover that are contained within
one of the three major sand transport systems (Whitewater River,
Mission Creek and
[[Page 74125]]
Morongo Wash, and Thousand Palms sand transport systems), that provide
soil conditions for the growth of Astragalus lentiginosus var.
coachellae.
2. Stabilized or partially stabilized sand dunes containing
evergreen or deciduous shrubs, scattered low annuals, or perennial
grasses that are contained within one of the three major sand transport
systems (Whitewater River, Mission Creek and Morongo Wash, and Thousand
Palms sand transport systems) and providing soil conditions for
individual population growth of Astragalus lentiginosus var.
coachellae.
3. Active or stabilized sand fields containing smaller sand
accumulations than dunes and are often characterized as hummocks
forming on leeward sides of shrubs that are contained within one of the
three major sand transport systems (Whitewater River, Mission Creek and
Morongo Wash, and Thousand Palms sand transport systems) and providing
soil conditions for individual growth of Astragalus lentiginosus var.
coachellae. Stabilized fields are similar to active fields but contain
sands stabilized by vegetation or that are armored.
4. Shielded sand fields or dunes that are contained within one of
the three major sand transport systems (Whitewater River, Mission Creek
and Morongo Wash, and Thousand Palms sand transport systems) and
providing soil conditions for individual growth of Astragalus
lentiginosus var. coachellae. These habitat features are similar to
active or stabilized sand fields or dunes, except the sand source is no
longer able to replenish these areas with new sand due to anthropogenic
factors.
5. Active washes containing fluvial sand deposits that are
contained within one of the three major sand transport systems
(Whitewater River, Mission Creek and Morongo Wash, and Thousand Palms
sand transport systems) and providing soil conditions for individual
growth of Astragalus lentiginosus var. coachellae.
6. Ephemeral non-sandy areas within the sand transport system where
mass movements of sand by eolian processes can occur and that are
contained within one of the three major sand transport systems
(Whitewater River, Mission Creek and Morongo Wash, and Thousand Palms
sand transport systems) and providing soil conditions for individual
growth of Astragalus lentiginosus var. coachellae.
Unoccupied Areas Identified for Possible Inclusion
The Act has different standards for designation of critical habitat
in occupied and unoccupied habitat. For areas occupied by the species,
these are `` (i) the specific areas on which are found those physical
and biological features essential to the conservation of the species
and that may require special management considerations or protection.
For areas not occupied, a determination is required that the entire
area is essential for the conservation of the species before it can be
included in critical habitat. Congress has also cautioned the Service
to be ``exceedingly circumspect'' in designating unoccupied areas as
critical habitat.
Our proposed rule included a section containing Unoccupied Areas
Identified for Possible Inclusion, for which we requested comment
regarding whether all, only a portion, or none of these areas should be
included in the designation. Astragalus lentiginosus var. coachellae's
PCEs are dependent on sand being continually replenished from sand
source areas upwind and upstream of where it occupies. Those areas
identified for possible inclusion included sand source areas (mountain
drainages) for each Unit that function to provide fluvial sediment
containing sands to fluvial depositional areas where wind transports
the sands to areas that support the taxon's PCEs. Areas identified for
specific review included mountain drainages in the San Bernardino and
San Jacinto mountains for Unit 1, mountain drainages in the eastern San
Bernardino and Little San Bernardino mountains for Unit 2, and mountain
drainages in the Indio Hills west of Thousand Palms Canyon for Unit 3.
For a more detailed discussion on the function of these sand source
areas see Areas Containing the Fluvial and Eolian Processes That
Generate Suitable Habitat in the proposed designation of critical
habitat for A. l. var. coachellae (69 FR 74468). We also requested
comment on whether the draft Coachella Valley MSHCP/NCCP would provide
for sufficient sand transport to maintain A. l. var. coachellae, and
whether there are threats to sand source areas that would be addressed
by designating them as critical habitat.
Although peer review and public comment were generally favorable
towards including the unoccupied sand source areas in the final
critical habitat designation, we are only designating areas actually
occupied at the time of listing in 1998. We have determined that the
presence of active sand dunes (PCE 1) is an essential feature, and we
have designated them as a PCE. We believe that the PCEs adequately
describe the essential function of the seed source areas in occupied
areas. Further, we believe the draft Coachella Valley MSHCP/NCCP will
adequately address the issue of protecting the function of these sand
source areas so that they continue to replenish sands to protected
sandy habitat areas in the Coachella Valley.
Criteria Used To Identify Critical Habitat
We are designating critical habitat on lands that we have
determined were occupied at the time of listing, are currently known to
be occupied, contain the primary constituent elements essential for the
conservation of Astragalus lentiginosus var. coachellae, and may be in
need of special management considerations or protection
We reevaluated the proposed designations based on public comment,
peer review of the proposed rule, the economic analysis of the proposed
rule, the public comments on that analysis, and other available
information, to ensure that the designation accurately reflects habitat
with the PCEs that is essential to the conservation of Astragalus
lentiginosus var. coachellae. All areas identified in the model are
within the historical and current ranges of A. l. var. coachellae and
contain the PCEs described above. Rather than designate every area
containing PCEs, we designated only those areas which available
evidence suggests those areas support the numbers and distribution of
A. l. var. coachellae conservation. Areas for which the evidence
available at this time was less certain were not included in this
designation, although we believe these areas to be important to the
species and may include them in future recovery plans. We designated
critical habitat for A. l. var. coachellae in areas that are necessary
to advance at least one of the following conservation criteria:
(1) The conservation of areas representative of the geographic
distribution of the species since species that are protected across
their ranges have lower chances of extinction (Soule and Simberloff
1986; Pavlik 1996; Noss et al. 1999);
(2) The conservation of areas representative of the ecological
distribution of the species. Astragalus lentiginosus var. coachellae is
associated with various sandy soil types and vegetation communities.
Maintaining the full range of varying habitat types and characteristics
for a species is necessary because it would include the full extent of
the physical and biological conditions necessary for the species (Noss
et al. 2002).
[[Page 74126]]
(3) The conservation of areas necessary to allow movement of pollen
and seeds between areas representative of the geographic and ecological
distribution of Astragalus lentiginosus var. coachellae.
(4) The conservation of areas that still function within one of
three major sand transport systems within the geographic range of this
taxon in the northern Coachella Valley. These three systems named for
the purposes of this rule are the Whitewater River, Mission Creek/
Morongo Wash, and Thousand Palms sand transport systems. The sand
transport systems are very important for sustaining the various types
of sandy habitats required by Astragalus lentiginosus var. coachellae
in the Coachella Valley. The eolian sands in the valleys originate in
the drainage basins in the surrounding mountains. Major precipitation
and flooding episodes erode sediment from the hillslopes and carry it
downstream through the fluvial systems. Fine-grained sediments are
deposited in either bajadas (alluvial fans) or depositional areas that
form the supply of sand for the eolian sand transport system.
In cases where more occupied areas were present than were needed
for the conservation of the geographic or ecological distribution of
the species, we gave priority to areas which were would be receiving
protection under the draft Coachella Valley MSHCP/NCCP.
Astragalus lentiginosus var. coachellae is one of the species
proposed for coverage by the proposed Coachella Valley MSHCP/NCCP. A
spatially explicit habitat model for the plant in the Coachella Valley
spanning from Cabezon to Thousand Palms was created to assist in the
design of preserves and to evaluate the potential benefits of the
MSHCP/NCCP on A. l. var. coachellae (Coachella Valley Mountain
Conservancy (CVMC) 2004). We used this habitat model to assist us in
identifying specific areas to designate as critical habitat for the A.
l. var. coachellae. The model was developed with occurrence data for A.
l. var. coachellae (Bureau of Land Management, unpublished data 2001b).
Environmental variables associated with the occurrence locations were
identified and maps containing those variables were combined with GIS
land use and habitat information to create the model. Eight types of
habitats were used in the model: (1) Margins of active dunes, (2)
active shielded desert dunes, (3) stabilized desert dunes, (4)
stabilized sand fields, (5) stabilized shielded sand fields, (6)
ephemeral sand fields, (7) active sand fields, and (8) mesquite
hummocks.
Because the model has not been refined with any field data since it
was developed (CVMC 2004), we reviewed the validity of the
environmental variables used to create the model with occurrence data
and information about the plant's ecology. We found records for
Astragalus lentiginosus var. coachellae in all of the natural
communities used to create the model. The areas we determined contain
essential features for the conservation of this taxon include a mosaic
of these habitat types, as well as intervening areas of ephemeral
habitat to allow for the transport of wind-dispersed seed pods and
eolian sands between locations containing large areas of habitat.
Habitat with essential features for the conservation of Astragalus
lentiginosus var. coachellae was mapped using GIS and refined using
topographical and aerial map coverages. We excluded areas containing
features essential for the conservation of this taxon that were covered
under legally operative or nearly completed habitat conservation plans
(HCPs) pursuant to section 4(b)(2) of the Act. Section 10(a)(1)(B) of
the Act authorizes us to issue permits for the take of listed animal
species incidental to otherwise lawful activities. An incidental take
permit application must be supported by an HCP that identifies
conservation measures that the permittee agrees to implement for the
species to minimize and mitigate the impacts of the requested
incidental take. We encourage HCP applicants to also incorporate
measures to provide for the conservation of listed plant species. We
often exclude non-Federal public lands and private lands that are
covered by an existing operative HCP and executed implementation
agreement (IA) under section 10(a)(1)(B) of the Act from designated
critical habitat because the benefits of exclusion outweigh the
benefits of inclusion as discussed in section 4(b)(2) of the Act.
In the final rule, we described the legal Universal Transverse
Mercator (UTM) coordinates, North American Datum 27, of the critical
habitat boundaries by recording coordinates along actual boundaries of
the areas containing features essential to the conservation of
Astragalus lentiginosus var. coachellae. This is in contrast to the
proposed critical habitat rule where we overlaid a 100-meter by 100-
meter grid on areas containing essential features to determine the
critical habitat boundaries that were described as the legal UTM
coordinates. The 100-meter gridding process in the proposed rule was
used to provide a more easily describable boundary for habitat
boundaries that are often non-linear. However, we abandoned using this
process because it created confusion by inadvertently capturing areas
outside of areas containing features essential to the conservation of
this taxon or areas that were originally excluded pursuant to section
4(b)(2) of the Act as described above.
When determining critical habitat boundaries, we made every effort
to avoid including within the boundaries of the map contained within
this final rule developed areas such as buildings, paved areas, and
other structures that lack primary constituent elements for Astragalus
lentiginosus var. coachellae. The scale of the maps prepared under the
parameters for publication within the Code of Federal Regulations may
not reflect the exclusion of such developed areas. Any such structures
and the land under them inadvertently left inside critical habitat
boundaries shown on the maps of this final rule have been excluded by
text in the proposed rule and are not designated as critical habitat.
Therefore, Federal actions limited to these areas would not trigger
section 7 consultation, unless they affect the species and/or primary
constituent elements in adjacent critical habitat.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the primary
constituent elements contained with the identified habitat 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 this taxon for inclusion in the
designation pursuant to section 3(5)(A) of the Act. Secondly, we
evaluate lands defined by those features to assess whether they may
require special management considerations or protection. Threats to
Astragalus lentiginosus var. coachellae's PCEs include direct and
indirect effects of residential and commercial development and exotic
plant species.
Areas containing features essential to the conservation of
Astragalus lentiginosus var. coachellae may require special management
due to threats posed by urban development that are not designed to
avoid direct destruction of A. l. var. coachellae's PCEs and that
obstruct eolian sand transport to areas that contain the PCEs. On
private lands, urban and golf course developments destroy plants and
occupied habitat directly. Large housing and golf course
[[Page 74127]]
developments may also affect the localized wind and flooding regimes by
reducing wind movement by the structures and landscaping and by
changing the flooding and drainage patterns. Occupied habitats
downstream and downwind of these developments, dependent upon the
continuous replenishment of loose unconsolidated sands for their long-
term existence, may be degraded by the alteration, blockage, and
reduction in their supply of sand. In addition, some areas may require
special management due to other types of development that are also not
designed to avoid direct impacts to Astragalus lentiginosus var.
coachellae's PCEs and that obstruct eolian sand transport to areas that
contain the PCEs. On public lands, the construction and operation of
sand and gravel mining, dams, and percolation ponds in western
Coachella Valley can directly impact plants and occupied habitat and
decrease the amount of fluvial transported sediments to deposition
areas downstream occupied habitats. For example, the percolation ponds
constructed on BLM areas resulted in the direct loss of plants and
occupied habitat and may have altered the transport of sand to
downstream occupied habitats. Astragalus lentiginosus var. coachellae
is threatened by the lack of minimization measures in project designs
for operation and maintenance of these facilities that reduce both
direct impacts to A. l. var. coachellae and its habitat and indirect
impacts to sand transportation downstream and downwind from these
facilities to occupied habitats. Finally, some areas may require
special management due to other threats posed by invasive exotic plants
to Astragalus lentiginosus var. coachellae's PCEs. On both private and
public lands in the Coachella Valley region, the major invasive exotic
plant species include Saharan mustard (Brassica tournefortii),
Mediterranean grass (Schismus barbatus), and Russian thistle (Salsola
tragus). The invasion of these exotic species is likely having indirect
effects on Astragalus lentiginosus var. coachellae's PCEs by reducing
wind velocity near ground level and stabilizing loose sediments that
are a major component of the PCEs. The reduction in sand movement
reduces the quality of the PCEs (loose-sandy habitat) that support A.
l. var. coachellae populations and obstructs eolian sand transport to
downwind areas containing PCEs. Further, the reduction in sand movement
may reduce the amount of scarification that is often necessary to
germinate A. l. var. coachellae's seeds.
Final Critical Habitat Designation
We determined that approximately 17,746 ac (7,182 ha) of habitat
that was known to be occupied at the time of listing and is known to be
currently occupied and contains features essential to the conservation
of Astragalus lentiginosus var. coachellae exist in Riverside County,
California (Table 1). All 17,746 ac (7,182 ha) are within areas that
are conserved or will soon be conserved under HCPs, including 3,655 ac
(1,479 ha) that is already conserved within the Coachella Valley
Preserve System under the approved Coachella Valley Fringe-Toed Lizard
HCP and 14,091 ac (5,703 ha) that will very likely be conserved under
the Coachella Valley MSHCP/NCCP. On the basis of our evaluation of the
conservation measures afforded to A. l. var. coachellae under the
Coachella Valley Fringe-Toed Lizard HCP, we have concluded that the
Federal lands within the Coachella Valley Preserve System that contain
features essential to conservation of this taxon do not meet the
definition of critical habitat under section 3(5)(A) of the Act because
they may not require special management considerations. In addition, on
the basis of our evaluation of the conservation measures that will very
likely be afforded to A. l. var. coachellae under the draft Coachella
Valley MSHCP/NCCP, we have concluded that the benefit of excluding the
lands covered by this MSHCP/NCCP outweighs the benefit of including
them as critical habitat (see section titled Application of Section
3(5)(A) and Exclusions Under Section 4(b)(2) of the Act for a more
detailed discussion), and therefore are excluding these lands from
critical habitat designation pursuant to section 4(b)(2) of the Act. As
a result, we are not designating any areas containing features
essential to the conservation of A. l. var. coachellae as critical
habitat in this final rule.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7 of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. Such
alterations include, but are not limited to: ``Alterations adversely
modifying any of those physical or biological features that were the
basis for determining the habitat to be critical.'' We are currently
reviewing the regulatory definition of adverse modification in relation
to the conservation of the species.
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. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with
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 may include reasonable
and prudent alternatives or reasonable and prudent measures 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)). Until such
time as a proposed designation is finalized, any reasonable and prudent
alternatives or reasonable and prudent measures included 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 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
[[Page 74128]]
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 are likely to adversely modify or destroy proposed
critical habitat.
Federal activities that may affect the Astragalus lentiginosus var.
coachellae or its critical habitat will require section 7 consultation.
Activities on private or State lands requiring a permit from a Federal
agency, such as a permit from the U.S. Army Corps of Engineers under
section 404 of the Clean Water Act, a section 10(a)(1)(B) permit from
the Service, or some other Federal action, including funding (e.g.,
Federal Highway Administration or Federal Emergency Management Agency
funding), will also continue to be subject to the section 7
consultation process. Federal actions not affecting listed species or
critical habitat and actions on non-Federal and private lands that are
not federally funded, authorized, or permitted do not require section 7
consultation.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may 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. coachellae. Federal activities that, when carried out, may
adversely affect critical habitat for the A. l. var. coachellae
include, but are not limited to:
(1) Activities that inhibit downstream sediment transport and the
replenishment of sands to areas of occupied habitat, and thus degrading
the PCEs, such as active sand dunes or fields, in areas containing
features essential for the conservation of Astragalus lentiginosus var.
coachellae. An example of such activity includes sand and gravel mining
within stream channels;
(2) Activities that block downwind transport of eolian sands to
areas of suitable habitat, and thus degrading the PCEs, such as active
sand dunes or fields, in areas containing features essential for the
conservation of Astragalus lentiginosus var. coachellae. Examples of
such activities include any type of development or the planting of
tamarisk rows that obstruct near surface winds carrying eolian sands;
(3) Activities that foster invasion of exotic weeds in areas
containing features essential to the conservation of Astragalus
lentiginosus var. coachellae (e.g., roads, landscaping, soil
disturbance) that may outcompete A. l. var. coachellae for valuable
resources and may stabilize sands in upwind areas and prevent them from
being transported to areas containing features essential for the
conservation of A. l. var. coachellae.
Both designated critical habitat Units are known to be occupied by
Astragalus lentiginosus var. coachellae. Federal agencies already
consult with us on activities in areas currently occupied by the taxon
or if the taxon may be affected by the action to ensure that their
actions do not jeopardize the continued existence of the A. l. var.
coachellae.
On December 24, 2002, we issued a Biological Opinion on the BLM's
California Desert Conservation Area Plan Amendment (CDCAPA) for the
Coachella Valley . At issue was the proposed amendment to the 1980 BLM
California Desert Conservation Area Plan (CDCA Plan).
Congress designated the CDCA with Section 601 of the Federal Land
Policy and Management Act (FLPMA) of 1976. To provide for management of
recreational use, as well as to resolve other resource and public land
use conflicts, FLPMA also directed the Secretary of the Interior to
``prepare and implement a comprehensive, long-range plan for
management, use, development, and protection of the public lands within
the CDCA.'' The CDCA Plan was signed in January 1980, and this document
now serves as the primary document that describes the basic management
principles that the BLM uses for managing their portion of the CDCA.
The CDCA Plan has undergone numerous minor amendments over the past 25
years, including major amendments to divide it into five eco-regions/
planning areas. The Coachella Valley is one of five bioregional
planning areas under the CDCA Plan. Amendments to this plan for each
bioregion address unique biological resource issues that are applicable
to a given area, and prescribe management actions that address local
land use needs. To more effectively and consistently manage their
portion of the public lands within the CDCA, the BLM developed a land
zoning system that provided specific land management prescriptions.
Under this zoning strategy, different areas are assigned to one of four
multiple-use classes (MUC). The MUC assignment is based on the
considered sensitivity of resources and kinds of uses occurring in each
geographic area.
Under their CDCAPA for the Coachella Valley, the BLM proposes seven
interim measures to protect federally listed species, including
Astragalus lentiginosus var. coachellae. These interim measures were
developed to conserve species during development of the Coachella
Valley MSHCP/NCCP. These interim measures that are relevant to A. l.
var. coachellae include: (1) The BLM will only consider land exchanges
or disposals involving threatened or endangered species habitat if they
benefit the species; and (2) the BLM will not allow any new activities
that may adversely affect A. l. var. coachellae on BLM lands within the
conservation areas of the draft Coachella Valley MSHCP/NCCP. In
addition, the BLM will manage for maintenance of hydrologic regime and
sand sources for all known populations and habitat of A. l. var.
coachellae on BLM lands.
Overall, the CDCAPA for the Coachella Valley bioregion provided
general guidance that can either benefit or adversely affect the
conservation of federally listed species, including Astragalus
lentiginosus var. coachellae, depending on location and project type
relative to their Multiple-Use Class activity guidelines. However,
future activities and projects will still need to receive site-specific
environmental review and section 7 consultation.
Application of Section 3(5)(A) 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
[[Page 74129]]
for the conservation of the species are not, by definition, critical
habitat. Similarly, areas within the geographic area occupied by the
species that do not require special management also are not, by
definition, critical habitat. To determine whether an area requires
special management, we first determine if the essential features
located there 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 provisions
outlined in sections 3(5)(A) and 4(b)(2) of the Act to evaluate those
specific areas that we proposed for designation as critical habitat.
Lands we have found that do not meet the definition of critical habitat
under section 3(5)(A), and lands excluded pursuant to section 4(b)(2)
include those covered by the following types of plans if they provide
assurances that the conservation measures they outline will be
implemented and effective: (1) Legally operative HCPs that cover the
species, (2) draft HCPs that cover the species and have undergone
public review and comment (i.e., pending HCPs), (3) Tribal conservation
plans that cover the species, (4) State conservation plans that cover
the species, and (5) National Wildlife Refuge System Comprehensive
Conservation Plans. Table 1 contains a summary of areas containing
features essential to the conservation of Astragalus lentiginosus var.
coachellae that do not meet the definition of critical habitat as well
as areas containing essential features that are being excluded from
critical habitat in this rule.
Relationship of Critical Habitat to Federal Lands Within the Coachella
Valley Fringe-Toed Lizard HCP--Application of Section 3(5)(A) of the
Act
We are not including areas containing features essential to the
conservation of Astragalus lentiginosus var. coachellae in portions of
all three units that are contained within Federal lands (BLM and
Service Refuge lands) within the boundaries of the Coachella Valley
Preserve System in the Coachella Valley fringe-toed lizard HCP under
section 3(5)(A) of the Act. On April 21, 1986, the Service approved and
issued a Section 10(a)(1)(B) incidental take permit under the Act for
the Coachella Valley fringe-toed lizard under the Coachella Valley
Fringe-Toed Lizard HCP and IA. The HCP called for the establishment of
three separate preserves for the conservation of the Coachella Valley
fringe-toed lizard: (1) The Coachella Valley Preserve; (2) the Willow
Hole-Edom Hill Preserve; and (3) the Indian Avenue Preserve within the
Whitewater River floodplain, which are collectively known as the
Coachella Valley Preserve System. Acquisition and maintenance of the
Coachella Valley Preserve System was the basis for the issuance of the
Service's section 10(a) permit to allow the incidental take of the
Coachella Valley fringe-toed lizard on private lands. The Coachella
Valley Preserve System is managed cooperatively by the major landowners
within each Preserve, including the BLM, the Service, the CDFG, and The
Nature Conservancy. These major landowners signed an IA in 1986 that
defined their roles and responsibilities in the management of the
Coachella Valley Preserve System, which was later amended in 1991 to
include the CDPR as a major landowner. Another amendment on August 3,
1999 transferred management responsibilities by the TNC to the Center
for Natural Lands Management (CNLM). The Coachella Valley Preserve
System was designed to capture habitats closely associated with the
Coachella Valley fringe-toed lizard, including primarily loose,
unstabilized, windblown sand. These habitats encompass several of the
PCEs important for the conservation of Astragalus lentiginosus var.
coachellae, including active sand dunes, stabilized or partially
stabilized sand dunes, active or stabilized sand fields, and shielded
sand fields that are contained within the Thousand Palms sand transport
system.
Even though Astragalus lentiginosus var. coachellae is not a
covered species under the Coachella Valley Fringe-Toed Lizard HCP, it
receives conservation benefits from the management of the Coachella
Valley Preserve System due to the protections afforded to the habitats
associated with the Coachella Valley fringe-toed lizard that are also
associated with Astragalus lentiginosus var. coachellae. In May 1995,
the BLM prepared the Coachella Valley Preserve System Management Plan
and Decision Record (CVPS Management Plan) that provided guidance for
managing the Coachella Valley Preserve System. The proposed CVPS
Management Plan was available for public review in October 1994. The
CVPS Management Plan discussed management actions that were designed to
conserve other sand-dependent sensitive species, including Astragalus
lentiginosus var. coachellae (which was a Federal candidate species at
the time). These management actions included, acquisition of suitable
habitat for the Coachella Valley fringe-toed lizard, law enforcement,
install and maintain boundary fencing and signs, research effective
methods for removing exotic invasive weeds, such as Russian thistle
(Salsola tragus) and mustard (Brassica tournefortii), and research
techniques for enhancing sand deposition into the preserves.
In order for the Secretary to determine that an area is adequately
managed and does not require special management, the Secretary must
evaluate existing management and find that it provides (1) a
conservation benefit to the species; (2) reasonable assurances for
implementation; and (3) reasonable assurances that conservation efforts
will be effective. The Secretary has reviewed the management plan and
actions for the Coachella Valley Preserve System and has determined
that the Preserve System is adequately managed for Astragalus
lentiginosus var. coachellae, and therefore does not need special
management. Therefore, all areas within BLM and Service Refuge lands
[[Page 74130]]
containing features essential for the conservation of A. l. var.
coachellae within the boundaries of the Coachella Valley Preserve
System are not included in this final critical habitat designation
pursuant to section 3(5)(A) of the Act. Finally, rather than not
including the other non-Federal landowners within the Coachella Valley
Preserve System in critical habitat, these lands are excluded from
critical habitat pursuant to section 4(b)(2) of the Act because of
their intent to be signatories to the draft Coachella Valley MSHCP/
NCCP.
Relationship of Critical Habitat to Pending Habitat Conservation
Plans--Exclusions Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act requires us to consider other relevant
impacts, in addition to economic impacts, when designating critical
habitat. Section 10(a)(1)(B) of the Act authorizes us to issue permits
for the take of listed wildlife species incidental to otherwise lawful
activities. Development of an HCP is a prerequisite for the issuance of
an incidental take permit pursuant to section 10(a)(1)(B) of the Act.
An incidental take permit application must be supported by an HCP that
identifies conservation measures that the Permittee agrees to implement
for the species to minimize and mitigate the impacts of the permitted
incidental take. Although take of plant species is not prohibited under
the Act, and therefore cannot be authorized under an incidental take
permit, plant species are included on the permit in recognition of the
conservation benefits provided to them under the HCP and for the
purposes of the No Surprises assurances.
HCPs vary in size and may provide for incidental take coverage and
conservation management for one or many federally listed species.
Additionally, more than one applicant may participate in the
development and implementation of an HCP. Large regional HCPs expand
upon the basic requirements set forth in section 10(a)(1)(B) of the Act
because they reflect a voluntary, cooperative approach to large-scale
habitat and species conservation planning. Many of the large regional
HCPs in southern California have been, or are being, developed to
provide for the conservation of numerous federally listed species and
unlisted sensitive species and the habitat that provides for their
biological needs. These HCPs are designed to proactively implement
conservation actions to address future projects that are anticipated to
occur within the planning area of the HCP. However, given the broad
scope of these regional HCPs, not all projects envisioned to
potentially occur may actually take place.
In developing critical habitat designations, the Service has
analyzed habitat conservation planning efforts to determine if the
benefits of excluding them from critical habitat outweigh the benefits
of including them in designated critical habitat. In reviewing HCPs,
the Service has assessed the potential impacts of critical habitat
designation on lands covered by HCPs on future partnerships, the status
of HCP efforts and progress made in developing and implementing such
plans, and their relationship to the conservation of species. In
certain circumstances, the Service has determined that an HCP not yet
completed may be considered for exclusion from critical habitat
designation pursuant to section 4(b)(2) of the Act.
Pending Coachella Valley Multiple Species Habitat Conservation Plan and
Natural Community Conservation Plan (MSHCP/NCCP)
We re-affirmed our December 14, 2004, proposed rule exclusion of
non-Federal lands containing features essential for the conservation of
Astragalus lentiginosus var. coachellae within the draft Coachella
Valley MSHCP/NCCP's plan area under section 4(b)(2) of the Act (69 FR
74468). In addition, we have determined that BLM lands within the draft
Coachella Valley MSHCP/NCCP that are outside of the Coachella Valley
Preserve System warrant exclusion from the critical habitat designation
due to their official participation in the draft Coachella Valley
MSHCP/NCCP planning process and commitment under their CDCAPA to manage
their lands consistent with the Coachella Valley MSHCP/NNCP once it is
completed.
The draft Coachella Valley MSHCP/NCCP has been in development from
the mid-1990s to present. Since 1997, the planning process has
proceeded under the auspices of a Memorandum of Understanding governing
the preparation of the MSHCP/NCCP entered into by the following
entities: CVAG; the cities of Cathedral City, Coachella, Desert Hot
Springs, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs, and
Rancho Mirage; County of Riverside; the Service; California Department
of Fish and Game (CDFG); BLM; U.S. Forest Service; and the National
Park Service. Later, the Caltrans, CVWD, Imperial Irrigation District,
Riverside County Flood Control and Water Conservation District,
Riverside County Regional Parks and Open Space District, Riverside
County Waste Management District, California Department of Parks and
Recreation (CDPR), and Coachella Valley Mountains Conservancy also
joined in preparation of the Plan. The parties later amended the
Planning Agreement to also address the requirements of the NCCP Act and
prepare a NCCP pursuant to California Fish and Game Code Section 2810.
As stated in their CDCAPA for the Coachella Valley, BLM has committed
95% of their public land base within the conservation areas of the
MSHCP/NCCP to be managed consistent with the MSHCP/NCCP. The MSHCP/NCCP
area proposes to encompass approximately 1,131,000 ac (457,700 ha) in
Riverside County. The MSHCP/NCCP is proposing to provide 747,000 ac
(302,300 ha) of conservation areas that will provide conservation
benefits for 52 federally listed and sensitive species, including A. l.
var. coachellae, over the life of the permit (75 years). The
Permittees' funding program proposes funding from a variety of
potential sources, including, but not limited to: (1) Local development
mitigation fees; (2) fees on the importation of waste into landfills
and transfer stations in Riverside County; (3) transportation project
mitigation; (4) regional infrastructure project mitigation; and (5)
Eagle Mountain Landfill Environmental Mitigation Trust Fund. CVAG has
demonstrated a sustained commitment to develop the MSHCP/NCCP to comply
with section 10(a)(1)(B) of the Act, the California Endangered Species
Act, and the State's NCCP program. On November 5, 2004, the Service
published a Notice of Availability of a Final Environmental Impact
Statement/Environmental Impact Report (EIS/EIR) for the MSHCP/NCCP.
All areas containing features essential for the conservation of
Astragalus lentiginosus var. coachellae are contained within the
proposed preferred alternative reserve design of the draft Coachella
Valley MSHCP/NCCP. CVAG estimates there are 36,398 ac (14,730 ha) of
modeled habitat for A. l. var. coachellae habitat within the draft
Coachella Valley MSHCP/NCCP plan area. The draft MSHCP/NCCP proposes to
conserve 19,321 ac (7,819 ha) of modeled A. l. var. coachellae habitat
in their Conservation Areas that includes large core habitat areas and
other important conservation areas, such as sand sources and sand
transport corridors. Core habitat areas include: Snow Creek/Windy Point
Conservation Area; Whitewater Floodplain Conservation Area; Willow Hole
[[Page 74131]]
Conservation Area; and Thousand Palms Conservation Area. Other goals
include: (1) Protecting other important conservation areas to allow for
population fluctuation and promote genetic diversity; (2) protecting
necessary ecological processes, including the sand transport systems,
that will be beneficial in maintaining the PCEs in the areas containing
features essential for the conservation of A. l. var. coachellae; (3)
maintaining biological corridors and linkages among all conserved
populations to the maximum extent feasible; and (4) ensuring
conservation of habitat quality through biological monitoring and
adaptive management actions.
CVAG carefully considered all available and occupied habitats for
Astragalus lentiginosus var. coachellae in developing their
conservation strategy for this species. CVAG concluded that the
habitats within the proposed Conservation Areas would provide long-term
protection for self-sustaining populations of this taxon because of the
following factors: (1) Conserved habitat areas are large enough to
increase the likelihood for maintaining self-sustaining populations of
A. l. var. coachellae and incorporate key habitat elements for the
species; (2) potential adverse effects within Conservation Areas would
not eliminate or significantly impact any core populations; (3)
potential development would not adversely impact the necessary
ecological processes (such as sand source and transport system) needed
to maintain currently viable habitat, and (4) lands in the MSHCP/NCCP
reserve system would be managed and monitored (CVMC 2004). The Service
evaluated the Conservation Areas for A. l. var. coachellae, and based
on our analysis and the best scientific data available, recognized that
the Conservation Areas also contained the physical and biological
features essential to the conservation of the species.
In light of the Service's confidence that CVAG will reach a
successful conclusion to its MSHCP/NCCP development process and
successfully conserve habitat for Astragalus lentiginosus var.
coachellae, we have identified and excluded under section 4(b)(2) of
the Act all lands (14,091 ac (5,703 ha)) containing features essential
for the conservation of A. l. var. coachellae within the Coachella
Valley MSHCP/NCCP plan area, including non-Federal lands covered by the
MSHCP/NCCP and Federal lands managed consistent with the MSHCP/NCCP. We
believe that CVAG has made significant progress in the development of
its MSHCP/NCCP to meet the requirements outlined in section 10(a)(1)(B)
of the Act.
(1) Benefits of Inclusion
Overall, we believe that there is minimal benefit from designating
critical habitat for Astragalus lentiginosus var. coachellae within the
draft Coachella Valley MSHCP/NCCP because, as explained above, these
lands are being proposed to be managed for the conservation of this
taxon.
A benefit of including an area within a critical habitat
designation is the protection provided by section 7(a)(2) of the Act
that directs Federal agencies to ensure that their actions do not
result in the destruction or adverse modification of critical habitat.
The designation of critical habitat may provide a different level of
protection under section 7(a)(2) of the Act for Astragalus lentiginosus
var. coachellae that is separate from the obligation of a Federal
agency to ensure that their actions are not likely to jeopardize the
continued existence of the endangered species. Under the Gifford
Pinchot decision, critical habitat designations may provide greater
benefits to the recovery of a species than was previously believed, but
it is not possible to quantify this benefit at present. However, the
protection provided is still a limitation on the harm that occurs as
opposed to a requirement to provide a conservation benefit. We are in
the final stages of completing a section 7 consultation on the issuance
of the section 10(a)(1)(B) permit for the Coachella Valley MSHCP/NCCP
for which A. l. var. coachellae is a covered species. The section
10(a)(1)(B) permit includes plants in recognition of the conservation
value of the HCP and to provide ``No Surprises'' to Permittees, even
though the take prohibition does not apply to plants.
If designated, primary constituent elements in this area would be
protected from destruction or adverse modification by Federal actions
using a conservation standard based on the Ninth Circuit Court's
decision in Gifford Pinchot. This requirement would be in addition to
the requirement that proposed Federal actions avoid likely jeopardy to
the species' continued existence. However, since all areas containing
features essential for the conservation of the Astragalus lentiginosus
var. coachellae are occupied, consultation for activities which may
adversely affect the species would be required, even without the
critical habitat designation.
Another potential benefit of designation would be to signal the
importance of these lands to the conservation of Astragalus
lentiginosus var. coachellae to Federal agencies and to the public. In
Sierra Club v. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001),
the Fifth Circuit Court of Appeals stated that the identification of
habitat containing the features essential to the conservation of the
species can provide informational benefits to the public, State and
local governments, scientific organizations, and Federal agencies. The
court also noted that heightened public awareness of the plight of
listed species and their habitats may facilitate conservation efforts.
The inclusion of an area as critical habitat may focus and contribute
to conservation efforts by other parties by clearly delineating areas
of high conservation values for certain species. However, we believe
that this educational benefit has largely been achieved for A. l. var.
coachellae. The public outreach and environmental impact reviews
required under the National Environmental Policy Act for the draft
Coachella Valley MSHCP/NCCP provided significant opportunities for
public education regarding the conservation of the areas occupied by A.
l. var. coachellae. There would be little additional informational
benefit gained from including these lands as critical habitat because
of the level of information that has been, and continues to be, made
available to the public as part of the regional planning effort.
Additionally, we believe the value of the Conservation Areas to provide
protection and enhancement of habitat for Astragalus lentiginosus var.
coachellae within the draft Coachella Valley MSHCP/NCCP is well
established among State and local governments, and Federal agencies
even without the designation of critical habitat.
The inclusion of the identified 14,091 ac (5,703 ha) of land as
critical habitat would provide some additional Federal regulatory
benefits for the species consistent with the conservation standard
based on the Ninth Circuit Court's decision in Gifford Pinchot. A
benefit of inclusion would be the requirement of a Federal agency to
ensure that their actions on these non-Federal lands do not likely
result in jeopardizing the continued existence of the species or result
in the destruction or adverse modification of critical habitat. This
additional analysis to determine destruction or adverse modification of
critical habitat is likely to be small because the lands are not under
Federal ownership and any Federal agency proposing a Federal action on
the 11,877 ac (4,807 ha) of non-Federal lands would likely consider
[[Page 74132]]
the conservation value of these lands as identified in the draft
Coachella Valley MSHCP/NCCP and take the necessary steps to avoid
jeopardy or the destruction or adverse modification of critical
habitat.
As discussed below, however, we believe that designating any lands
within the Coachella Valley MSHCP/NCCP as critical habitat would
provide little additional educational and Federal regulatory benefits
for the species. Because the excluded areas are occupied by the
species, there must be consultation with the Service over any action
which may result in adverse effects to these populations on Federal
lands or on lands with a Federal nexus. The additional educational
benefits that might arise from critical habitat designation have been
largely accomplished through the public review and comment of the
environmental impact documents which accompanied the development of the
Coachella Valley MSHCP/NCCP.
For 30 years prior to the Ninth Circuit Court's decision in Gifford
Pinchot, the Fish and Wildlife Service equated the jeopardy standard
with the standard for destruction or adverse modification of critical
habitat. However, in Gifford Pinchot the court noted the government, by
simply considering the action's survival consequences, was reading the
concept of recovery out of the regulation. The court, relying on the
CFR definition of adverse modification, required the Service to
determine whether recovery was adversely affected. The Gifford Pinchot
decision arguably made it easier to reach an ``adverse modification''
finding by reducing the harm, affecting recovery, rather than the
survival of the species. However, there is an important distinction:
Section 7(a)(2) limits adverse effects to the species and its
designated critical habitat through either a jeopardy or destruction or
adverse modification analyses. It does not require positive
improvements or enhancement of the species status. Thus, any management
plan which considers enhancement or recovery as the management standard
will almost always provide more benefit than the critical habitat
designation. This is particularly true for management plans that
include plants on non-Federal lands because plants do not receive
protection stemming from the take prohibitions under the Act on non-
Federal lands.
(2) Benefits of Exclusion
As mentioned above, the draft Coachella Valley MSHCP/NCCP proposes
to provide for the conservation of the PCEs for Astragalus lentiginosus
var. coachellae by: (1) Protecting important ecological processes that
maintain the PCEs for A. l. var. coachellae; (2) maintaining biological
corridors and linkages among all conserved populations to the maximum
extent feasible; and (3) ensure conservation of habitat quality through
biological monitoring and adaptive management actions, such as
controlling exotic invasive weeds that may degrade the PCEs. The draft
Coachella Valley MSHCP/NCCP therefore proposes to provide for the
protection of PCEs, and address special management needs. Designation
of critical habitat would therefore not provide as great a benefit to
the species as the positive management measures in the plan.
The benefit of excluding lands within nearly completed HCPs from
critical habitat designation includes relieving landowners,
communities, and counties of any additional regulatory burden that
might be imposed by a critical habitat designation consistent with the
conservation standard based on the Ninth Circuit Court's decision in
Gifford Pinchot. Many HCPs, particularly large regional HCPs take many
years to develop and, upon completion, become regional conservation
plans that are consistent with the recovery objectives for listed
species that are covered within the plan area. Additionally, many of
these HCPs provide conservation benefits to unlisted, sensitive species
and federally listed plants that do not receive protections on non-
Federal lands not subject to a Federal nexus. Imposing an additional
regulatory review after an HCP is nearly completed solely as a result
of the designation of critical habitat may undermine conservation
efforts and partnerships in many areas. In fact, it could result in the
loss of species' benefits if participants abandon the voluntary HCP
process because the critical habitat designation may result in
additional regulatory requirements than faced by other parties who have
not voluntarily participated in species conservation. Designation of
critical habitat within the boundaries of nearly approved HCPs could be
viewed as a disincentive to those entities currently developing HCPs or
contemplating them in the future. Another benefit from excluding these
lands is to maintain the partnerships developed among several partners
in the Coachella Valley including CVAG; the cities of Cathedral City,
Coachella, Desert Hot Springs, Indian Wells, Indio, La Quinta, Palm
Desert, Palm Springs, and Rancho Mirage; County of Riverside; CVWD,
Imperial Irrigation District, Riverside County Flood Control and Water
Conservation District, Riverside County Regional Parks and Open Space
District, Riverside County Waste Management District, CDPR; Coachella
Valley Mountains Conservancy; CDFG; Caltrans; BLM; U.S. Forest Service;
the National Park Service; and us to complete and implement the
Coachella Valley MSHCP/NCCP. Instead of using limited funds to comply
with administrative consultation and designation requirements which
cannot provide protection beyond what is currently in place, the
partners could instead use their limited funds for the conservation of
this species.
A related benefit of excluding lands within HCPs from critical
habitat designation is the unhindered, continued ability to seek new
partnerships with future HCP participants including States, Counties,
local jurisdictions, conservation organizations, and private
landowners, which together can implement conservation actions that we
would be unable to accomplish otherwise. If lands within nearly
completed HCP plan areas are designated as critical habitat, it would
likely have a negative effect on our ability to establish new
partnerships to develop HCPs, particularly large, regional HCPs that
involve numerous participants and address landscape-level conservation
of species and habitats. By excluding these lands, we preserve our
current partnerships and encourage additional conservation actions in
the future. This is especially important for federally listed plants
that do not receive take prohibitions under the Act on non-Federal
lands. By including measures to conserve plants and habitat in an HCP,
non-Federal participants are voluntarily agreeing to conserve plants
that would not otherwise receive protections with a critical habitat
designation. Further, imposing additional regulatory burdens on HCP
participants with regard to a listed plant could discourage them from
including plants as covered species and providing conservation benefits
for them.
Furthermore, an HCP or NCCP/HCP application must itself be
consulted upon. While this consultation will not look specifically at
the issue of adverse modification to critical habitat, unless critical
habitat has already been designated within the proposed plan area, it
will determine if the HCP jeopardizes the species in the plan area. In
addition, Federal actions not covered by the HCP in area that may
affect occupied by listed species would still require consultation
under section 7 of
[[Page 74133]]
the Act. HCP and NCCP/HCPs typically provide for greater conservation
benefits to a covered species than section 7 consultations because HCPs
and NCCP/ HCPs assure the long-term protection and management of a
covered species and its habitat, and funding for such management
through the standards found in the 5 Point Policy for HCPs (64 FR
35242) and the HCP ``No Surprises'' regulation (63 FR 8859). Such
assurances are typically not provided by section 7 consultations that,
in contrast to HCPs, often do not commit the project proponent to long-
term special management considerations or protections. Thus, a
consultation typically does not accord the lands it covers the
extensive benefits a HCP or NCCP/HCP provides. The development and
implementation of HCPs or NCCP/HCPs provide other important
conservation benefits, including the development of biological
information to guide the conservation efforts and assist in species
conservation, and the creation of innovative solutions to conserve
species while allowing for development.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
We have reviewed and evaluated the exclusion of 14,091 ac (5,703
ha) of lands within the nearly completed Coachella Valley MSHCP/NCCP
plan area from critical habitat designation for Astragalus lentiginosus
var. coachellae; and based on this evaluation, we find that the
benefits of exclusion, which include potentially avoiding increased
regulatory costs that could result from including those lands in this
designation of critical habitat, ensuring the willingness of existing
partners to continue active conservation measures, maintaining the
ability of attracting new partners, and directing limited funding to
conservation actions with partners, of the lands containing features
essential to the conservation of A. l. var. coachellae within the draft
Coachella Valley MSHCP/NCCP outweigh the benefits of inclusion, which
include limited educational and regulatory benefits that are largely
otherwise provided for under the draft MSHCP/NCCP, of these lands as
critical habitat. The benefits of inclusion of these 14,091 ac (5,703
ha) of lands as critical habitat are lessened because of the
significant level of conservation that is proposed to be provided for
A. l. var. coachellae under the draft Coachella Valley MSHCP/NCCP,
including the conservation of PCEs, protection of important ecological
processes that maintain PCEs, maintenance of biological corridors and
linkages among all conserved populations to the maximum extent
feasible, and conservation of habitat quality through biological
monitoring and adaptive management actions that may improve PCEs.
In contrast, the benefits of excluding 11,877 ac (4,807 ha) of non-
Federal lands covered by their likely signatory status to the draft
Coachella Valley MSHCP/NCCP and 2,214 ac (896 ha) of BLM lands based on
their commitment under their CDCAPA for the Coachella Valley to manage
their lands consistent with the draft Coachella Valley MSHCP/NCCP and
official participation in the draft Coachella Valley MSHCP/NCCP
planning process from critical habitat designation are increased
because of the high level of cooperation by the participants in the
Coachella Valley MSHCP/NCCP to conserve this taxon. This partnership
exceeds any conservation value provided by a critical habitat
designation, particularly for federally listed plants, which do not
receive protection stemming from take prohibitions on non-Federal lands
under the Act.
(4) Exclusion Will Not Result in Extinction of the Species
In the proposed designation of critical habitat for Astragalus
lentiginosus var. coachellae published on December 14, 2004 (69 FR
74468), we excluded all non-Federal lands containing essential features
for the conservation of A. l. var. coachellae from the proposed
designation under Section 4(b)(2) of the Act because of their
relationship to the draft Coachella Valley MSHCP/NCCP. In this final
designation, we continue to believe that the exclusion of non-Federal
lands as well as BLM lands (14,091 ac (5,703 ha)) in all three Units
will not result in extinction of A. l. var. coachellae since all areas
containing essential features for the conservation of A. l. var.
coachellae are being proposed for conservation and management that will
benefit this taxon pursuant to the draft Coachella Valley MSHCP/NCCP.
The draft Coachella Valley MSHCP/NCCP includes specific conservation
objectives, avoidance and minimization measures, and management for the
draft Coachella Valley MSHCP/NCCP that exceed any conservation value
provided as a result of a critical habitat designation.
The jeopardy standard of section 7 and routine implementation of
habitat conservation through the section 7 process also provide
assurances that the species will not go extinct. The exclusion leaves
this protection unchanged from what would exist if the excluded areas
were designated as critical habitat.
Critical habitat is being designated for Astragalus lentiginosus
var. coachellae in other areas that will be accorded the protection
from adverse modification by Federal actions using the conservation
standard based on the Ninth Circuit Court's decision in Gifford
Pinchot. These factors acting in concert with the other protections
provided under the Act, lead us to find that exclusion of these 14,091
ac (5,703 ha) within the draft Coachella Valley MSHCP/NCCP will not
result in extinction of A. l. var. coachellae.
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific 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 potential
economic effects of the proposed Astragalus lentiginosus var.
coachellae critical habitat designation (Northwest Economics Associates
2005). The draft analysis was made available for public review on
September 27, 2005 (70 FR 56434). We accepted comments on the draft
analysis until October 27, 2005.
The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the designation of critical
habitat for the Astragalus lentiginosus var. coachellae. 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 co-extensive 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.
[[Page 74134]]
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.
There is no economic impact within the final designation because
the Service has not designated any lands as critical habitat for
Astragalus lentiginosus var. coachellae.
A copy of the final economic analysis and supporting documents are
included in our administrative file and may be obtained by contacting
the Carlsbad office (see ADDRESSES section).
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 it 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 in
the section titled Economic Analysis, 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, based on the best
scientific 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 (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. In our proposed rule,
we withheld our determination of whether this designation would result
in a significant effect as defined under SBREFA until we completed our
draft economic analysis of the proposed designation so that we would
have the factual basis for our determination.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). 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 considered the
types of activities that might trigger regulatory impacts under this
designation as well as 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 this designation of critical habitat for Astragalus
lentiginosus var. coachellae will affect a substantial number of small
entities, we considered the number of small entities affected within
particular types of economic activities (e.g., residential, industrial,
and commercial development). We considered each industry or category
individually to determine if certification is appropriate. In
estimating the numbers of small entities potentially affected, we also
considered whether their activities have any Federal involvement; some
kinds of activities are unlikely to have any Federal involvement and so
will not be affected by the designation of critical habitat.
Designation of critical habitat only affects activities conducted,
funded, permitted, or authorized by Federal agencies; non-Federal
activities are not affected by the designation.
Typically, when proposed critical habitat designations are made
final, Federal agencies must consult with us if their activities may
affect designated critical habitat. Consultations to avoid the
destruction or adverse modification of critical habitat would be
incorporated into the existing consultation process. Our analysis
determined that costs involving conservation measures for Astragalus
lentiginosus var. coachellae would be incurred for activities involving
residential, commercial, and industrial development (land subdivision
companies); transportation (Caltrans, CVAG, or Riverside County
Transportation Commission); Federal land (BLM, U.S. Forest Service, and
the Service); other public (CDFG and CDPR) or conservation (TNC and
CNLM) land management; water supply (Mission Springs Water District and
CVWD); flood control (CVWD and Riverside County Flood Control and Water
Conservation District agencies); implementation of the draft Coachella
Valley MSHCP/NCCP; and wind energy projects (private businesses and
individuals). However, since no critical habitat is being designated,
no consultations would be necessary.
In our economic analysis of the proposed designation, we evaluated
the potential economic effects on small business entities resulting
from conservation actions related to the listing of this species and
designation of its critical habitat. Because zero acres of critical
habitat are being designated, there would be no additional costs to
small businesses, and, thus, this rule would not result in a
``significant effect'' for small businesses in Riverside County,
California. As such, we are certifying that this rule will 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 as well as the fact that this rule is a zero designation of
critical habitat, 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.
[[Page 74135]]
Executive Order 13211
On May 18, 2001, the President issued an Executive Order (E.O.
13211) on regulations that significantly affect energy supply,
distribution, and use. Executive Order 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
This final rule to designate critical habitat for Astragalus
lentiginosus var. coachellae is not a significant regulatory action
under Executive Order 12866, and it 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, 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; AFDC 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 who receive Federal
funding, assistance, permits or 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 we are designating zero acres of
critical habitat. Consequently, we do not believe that critical habitat
designation would significantly or uniquely affect small government
entities. As such, a Small Government Agency Plan is not required.
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for Astragalus lentiginosus var.
coachellae. Critical habitat designation does not affect landowner
actions that do not require Federal funding or permits, nor does it
preclude development of habitat conservation programs or issuance of
incidental take permits to permit actions that do require Federal
funding or permits to go forward. Because we are designating zero acres
of critical habitat for Astragalus lentiginosus var. coachellae, this
rule does not pose significant takings implications.
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
critical habitat designation with appropriate State resource agencies
in California. The designation of zero acres of critical habitat in
areas currently occupied by Astragalus lentiginosus var. coachellae
would have no impact on State and local governments and their
activities. The process of identifying habitat with features essential
to the conservation of the species may have some benefit to these
governments in that these areas essential to the conservation of the
species are more clearly defined, and the primary constituent elements
of the habitat necessary to the survival 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 meets the requirements of sections 3(a) and 3(b)(2)
of the Order. We have designated zero acres of critical habitat in
accordance with the provisions of the 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 Astragalus lentiginosus var.
coachellae.
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 NEPA in connection
with designating critical habitat under the Endangered Species Act of
1973, as amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This assertion was upheld in the courts of the
[[Page 74136]]
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 the Department
of Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. We have determined that no
tribal lands occupied at the time of listing contain the features
essential for the conservation and no tribal lands that are unoccupied
are essential for the conservation of the Astragalus lentiginosus var.
coachellae.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from the Field Supervisor, Carlsbad Fish and
Wildlife Office (see ADDRESSES section).
Author(s)
The primary authors of this package are the Carlsbad Fish and
Wildlife Office staff.
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 set forth below:
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), in the List of Endangered and Threatened Plants,
revise the entry for ``Astragalus lentiginosus var. coachellae'' under
``FLOWERING PLANTS'' to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
---------------------------------------------------- Historic range Family Status When listed Critical habitat Special
Scientific name Common name rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Astragalus lentiginosus var. Coachella Valley U.S.A. (CA)....... Fabaceae.......... E 647 17.96(a) (No areas NA
coachellae. milk-vetch. designated)
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.96, amend paragraph (a) by adding an entry for
Astragalus lentiginosus var. coachellae in alphabetical order under
Family Fabaceae to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Fabaceae: Astragalus lentiginosus var. coachellae (Coachella
Valley Milk-Vetch)
Pursuant to section 4(b)(2) of the Act, we have excluded all areas
determined to meet the definition of critical habitat under section
3(5)(A) of the Act for Astragalus lentiginosus var. coachellae.
Therefore, no specific areas are designated as critical habitat for
this species.
* * * * *
Dated: November 30, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-23694 Filed 12-13-05; 8:45 am]
BILLING CODE 4310-55-P