[Federal Register Volume 76, Number 97 (Thursday, May 19, 2011)]
[Rules and Regulations]
[Pages 29108-29129]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-12330]
[[Page 29107]]
Vol. 76
Thursday,
No. 97
May 19, 2011
Part IV
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; Final Revised
Designation of Critical Habitat for Astragalus Jaegerianus (Lane
Mountain Milk-Vetch); Final Rule
Federal Register / Vol. 76, No. 97 / Thursday, May 19, 2011 / Rules
and Regulations
[[Page 29108]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2009-0078; MO 99210-0-0009]
RIN 1018-AW53
Endangered and Threatened Wildlife and Plants; Final Revised
Designation of Critical Habitat for Astragalus Jaegerianus (Lane
Mountain Milk-Vetch)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
designating revised critical habitat for Astragalus jaegerianus (Lane
Mountain milk-vetch) under the Endangered Species Act of 1973, as
amended (Act). In total, approximately 14,069 acres (ac) (5,693
hectares (ha)) of land in 2 units located in the Mojave Desert in San
Bernardino County, California, fall within the boundaries of the
revised critical habitat designation.
DATES: This rule becomes effective on June 20, 2011.
ADDRESSES: The final rule and the associated final economic analysis,
and map of critical habitat are available on the Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2009-0078, and http://www.fws.gov/ventura/. Comments and materials received, as well as
supporting documentation used in the preparation of this final rule,
are available for public inspection, by appointment, during normal
business hours, at the U.S. Fish and Wildlife Service, Ventura Fish and
Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93003;
telephone 805-644-1766; facsimile 805-644-3958.
FOR FURTHER INFORMATION CONTACT: Diane Noda, Field Supervisor, U.S.
Fish and Wildlife Service, Ventura Fish and Wildlife Office (see
ADDRESSES). If you use a telecommunications device for the deaf (TDD),
call the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics directly relevant to
the development and designation of revised critical habitat for
Astragalus jaegerianus under the Act (16 U.S.C. 1531 et seq.). For more
information on the biology and ecology of A. jaegerianus, refer to the
final listing rule published in the Federal Register on October 6, 1998
(63 FR 53596), the previous proposed critical habitat that published in
the Federal Register on April 6, 2004 (69 FR 18018), and the proposed
revised designation of critical habitat that published in the Federal
Register on April 1, 2010 (75 FR 16404). Information on the associated
draft economic analysis (DEA) for the proposed rule to designate
revised critical habitat was published in the Federal Register on
November 3, 2010 (75 FR 67676).
Species Description, Life History, Distribution, Ecology, and Habitat
We received no new information pertaining to the description, life
history, or distribution of Astragalus jaegerianus following the
proposed revised designation (April 1, 2010; 75 FR 16404). These
subjects are summarized in the final listing rule that published in the
Federal Register on October 6, 1998 (63 FR 53596), and the proposed
revised designation of critical habitat that published in the Federal
Register on April 1, 2010 (75 FR 16404). However, we did receive and
analyze new information related to population dynamics, ecology, and
habitat of A. jaegerianus primarily from two long-term monitoring
reports (U.S. Army: Fort Irwin 2009, 2010) and from research recently
conducted on the effects of long-term drought on A. jaegerianus and its
host shrubs (Huggins et al. 2010). In addition, we are clarifying
information on recent genetic studies that was briefly mentioned in the
proposed revised critical habitat designation. This new information is
described below.
New Information
Population Dynamics
Two reports have become available since the proposed revised
critical habitat designation was prepared. As part of their Integrated
Natural Resources Management Plan (INRMP) responsibilities, the Army
established 40 study plots in 2005 to study the demographics of
Astragalus jaegerianus and submits annual monitoring reports to the
Service. Ten study plots were established in each of the four
populations of Astragalus jaegerianus. This species is an herbaceous
perennial that typically dies back at the end of each growing season,
and persists through the dry season as a taproot; this taproot may also
allow A. jaegerianus to survive occasional dry years, while longer
periods of drought might be endured by remaining dormant. ``Above-
ground'' refers to those individuals that can be observed each year on
the basis of their herbaceous growth. Information summarized from the
2010 annual monitoring report indicates that, while the total number of
A. jaegerianus individuals observed above-ground within the plots has
decreased compared to 2005 levels, the number of individuals has
increased annually since 2007 (Hessing 2010, p. 4). Study plot surveys
in 2005 documented 224 individuals; in 2007, the total number of
individuals observed in the study plots was 4 plants; in 2010, the
total number of individuals was 152. Of these 152 plants, 120 were
individuals that were observed the previous year, 26 were new recruits,
and 6 were resprouts.
Another ongoing population demography study conducted at permanent
survey plots at the Montana Mine and Goldstone sites showed that
Astragalus jaegerianus populations have declined in number of
individuals, and in 2009 are less than 13 percent of their population
size in 1999 (Sharifi et al. 2010, p. 4). The rate of mortality has
generally slowed in the last 2 years, although at one subplot, the rate
has increased recently compared with earlier years. Little to no
observed recruitment is thought to be the result of low seedling
survival and a depleted seed bank (Sharifi et al. 2010, pp. 11-12).
Recruitment is probably episodic and requires two or more uncommon
conditions such as: A large seed bank, precipitation greater than 8
inches (in) (200 millimeter (mm)) per year and frequently spaced (rain
events approximately four times a month), and a subsequent wet year or
summer precipitation (Sharifi et al. 2009, p. 10).
Ecology and Habitat
Huggins et al. (2010) reported on changes in host shrub canopy over
a time period from 1999 to 2009 in the same areas where populations
have been monitored by Sharifi et al. (2010) (see above). A drought
began in the Mojave Desert (and much of the western States) in 1999,
according to various researchers (Cook et al. 2004, p. 1016; Breshears
et al. 2005, p. 15144; Hereford et al. 2006, p. 19). Such droughts have
been documented to result in population diebacks and drought pruning of
perennial desert shrubs (for example, see Hamerlynck and McAuliffe
2008). Host shrubs for Astragalus jaegerianus have been documented to
have experienced a 10 percent decrease in volume and cover between 1999
and 2009, and shrub mortality has been high (Huggins et al. 2010, pp.
123-124). Such deterioration in shrub canopy cover results in increased
ground temperature and light intensity within the host shrub, and
[[Page 29109]]
likely indirectly affects the establishment and survival of A.
jaegerianus. This hypothesis was supported by the observation that
survival of A. jaegerianus was higher in host shrubs with more intact
canopies. The authors opine that continuing drought in the Mojave
Desert will lead to local extirpations of this species (Huggins et al.
2010, p. 127).
Genetics
Recent genetic analysis of Astragalus jaegerianus using AFLP
(amplification fragment length polymorphism) markers showed that the
species exhibits levels of genetic variation that are more consistent
with species that are geographically widespread with large populations
and numerous individuals, with each population exhibiting a high level
of genetic variation and significant population structure across the
range of the species (Walker and Metcalf 2008, pp. 158-177). The
observation of these results in A. jaegerianus, a species with a
restricted range and few numbers of individuals, leads the authors to
opine that the species has or is currently undergoing population
contraction. In addition, the authors found that the level of genetic
differentiation between the eastern half and the western half of the
Coolgardie population was significant, and they recommended these two
areas be recognized as separate populations.
In summary, we have considered new information as described above,
and have incorporated it into this rule; none of it has altered our
analysis of how to designate critical habitat for this species. With
respect to the recommendation that two populations of Astragalus
jaegerianus be recognized on Coolgardie Mesa, we acknowledge that there
may be two genetically distinct populations; however, because they are
geographically contiguous, it does not alter our delineation of the
critical habitat unit in this area.
Previous Federal Actions
The final rule listing Astragalus jaegerianus as an endangered
species was published on October 6, 1998 (63 FR 53596). On November 15,
2001, our decision not to designate critical habitat for A. jaegerianus
and seven other plant and wildlife species at the time of listing was
challenged in Southwest Center for Biological Diversity and California
Native Plant Society v. Norton (Case No. 01-CV-2101-IEG (S.D. Cal.). On
July 1, 2002, the court ordered the Service to reconsider its not
prudent determination, and propose critical habitat, if prudent, for
the species by September 15, 2003, and issue a final critical habitat
designation, if prudent, no later than September 15, 2004. In light of
Natural Resources Defense Council v. U.S. Department of the Interior,
113 F.3d 1121 (9th Cir. 1997), and the diminished threat of
overcollection, the Service reconsidered its decision and determined
that it was prudent to propose critical habitat for the species.
However, the Service exhausted the funding appropriated by Congress to
work on critical habitat designations in 2003 prior to completing the
proposed rule. On September 8, 2003, the court issued an order
extending the date for issuance of the proposed critical habitat
designation for A. jaegerianus to April 1, 2004, and the final
designation to April 1, 2005.
On April 6, 2004 (69 FR 18018), we published a proposed critical
habitat designation that included 29,522 ac (11,947 ha) in 4 units in
San Bernardino County, California. On April 8, 2005 (70 FR 18220), we
published our final designation of critical habitat for Astragalus
jaegerianus. Because we excluded all proposed acreage from the
designation, the final designation included zero (0) ac (0 ha).
On December 19, 2007, the 2005 critical habitat determination was
challenged by the Center for Biological Diversity (Center for
Biological Diversity v. United States Fish and Wildlife Service et al.,
Case No. CV-07-08221-JFW-JCRx). In a settlement agreement accepted by
the court on June 27, 2008, we agreed to reconsider the critical
habitat designation for Astragalus jaegerianus. The settlement
stipulated that we submit a proposed revised critical habitat rule for
A. jaegerianus to the Federal Register for publication on or before
April 1, 2010, and submit a final revised determination on the proposed
critical habitat rule to the Federal Register for publication on or
before April 1, 2011; the proposed critical habitat rule was published
on April 1, 2010 (75 FR 16404). On November 3, 2010, the document
making available the draft economic analysis and reopening the public
comment period for the proposed revised critical habitat designation
was published in the Federal Register (75 FR 67676). On December 28,
2010, the court granted an extension for the submission of the final
revised critical habitat determination to the Federal Register on or
before May 16, 2011. This final revised critical habitat designation
complies with the June 27, 2008, and December 28, 2010, court orders.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
revised designation of critical habitat for Astragalus jaegerianus
during two comment periods. The first comment period associated with
the publication of the proposed revised critical habitat designation
(75 FR 16404) opened on April 1, 2010, and closed June 1, 2010. We also
requested comments on the proposed revised critical habitat designation
and associated draft economic analysis during a second comment period
that opened November 3, 2010, and closed on December 3, 2010 (75 FR
67676). We did not receive any requests for a public hearing. We also
contacted appropriate Federal, State, and local agencies; scientific
organizations; and other interested parties and invited them to comment
on the proposed revised rule and draft economic analysis during these
comment periods.
During the first comment period, we received seven comment letters
directly addressing the proposed revised critical habitat designation.
During the second public comment period, we received 14 comment letters
directly addressing the proposed revision of critical habitat for this
species or the draft economic analysis; 1 of these consisted of an
informal ``petition,'' with approximately 870 signatures, to the Bureau
of Land Management (Bureau) regarding management of the Coolgardie
area, and 1 of the comments was from a party that previously commented
in the first comment period. All substantive information provided
during comment periods has either been incorporated directly into this
final determination or addressed below. Comments received were grouped
into five general categories specifically relating to the proposed
revised critical habitat designation for Astragalus jaegerianus, and
are addressed in the following summary and incorporated into the final
revised critical habitat designation as appropriate.
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinions from four knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which it occurs, or conservation
biology principles pertinent to the species. We received responses from
one of the four peer reviewers.
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We reviewed all comments received from the peer reviewer for
substantive issues and new information regarding critical habitat for
Astragalus jaegerianus. Peer reviewer comments are addressed in the
following summary and incorporated into the final rule as appropriate.
Peer Reviewer Comments
Comment 1: The peer reviewer noted that protection of existing
habitat is essential because, as with other Astragalus taxa, this
species may have very narrow habitat requirements, and translocation
may have a low probability of long-term success. The reviewer also
noted that the most frequent pollinator of A. jaegerianus, Anthidium
dammersi, is a solitary bee that nests in the ground, likely in close
proximity to A. jaegerianus plants. Ground-nesting bees are highly
sensitive to activities that may compact soil, as the nests may be
damaged or destroyed, such as may occur with off-highway vehicles
(OHVs), military vehicles, construction or mining equipment, and
livestock grazing. The reviewer concludes that the designation is
scientifically sound and essential to protect the viability of A.
jaegerianus populations.
Our Response: We appreciate the peer reviewer's comments. As
discussed in the Methods section below, we took into consideration all
available information concerning habitat requirements, as well as the
needs of pollinators and seed dispersers, in delineating critical
habitat for this species.
Comment 2: The peer reviewer commented that, because much of the
genetic diversity in Astragalus jaegerianus is partitioned among
populations, it is important to designate each of the [sites for]
existing populations as critical habitat. We also received a comment
from one of the researchers that conducted the genetic analysis (Walker
and Metcalf 2008). He corrected our characterization of the results of
the genetics analysis in the proposed revised critical habitat
designation as follows: While DNA sequencing techniques detected no
variation between individuals of A. jaegerianus, the use of AFLP
genetic markers, which screen the whole genome, showed that genetic
variation was high among the individuals tested. Even though the
results are more typical of species that are geographically widespread
with large populations and numerous individuals, the observation of
these results in A. jaegerianus, a species with a restricted range and
few individuals, leads the authors to opine that the species has or is
currently undergoing population contraction (Walker and Metcalf 2008 p.
172).
Our Response: We appreciate the clarification on the results of the
genetic analyses. We acknowledge the importance of maintaining genetic
diversity within the species, and have designated all areas where
Astragalus jaegerianus occurs as critical habitat, with the exception
of those areas on Fort Irwin that have been exempted under 4(a)(3)(b)
of the Act. Because all areas where the species occurs were already
included in the proposed critical habitat designation, no changes were
made based on the information obtained from the genetic studies.
Federal Agency Comments
Comment 3: The Bureau provided an update on the status of lands
conservation efforts within the Coolgardie and Paradise Areas of
Critical Environmental Concern (ACECs), as per the prescriptions in the
West Mojave Plan (WMP) (Bureau 2010, in litt.). In particular, they
noted that:
No project permits were issued in this area in 2010
(Prescription (P) 26);
No grazing has been authorized (P27);
An additional 7 miles (mi) (11 kilometers (km)) of post
and cable barrier fence was installed in 2010 and routes were reclaimed
in the southwest corner of the Coolgardie ACEC and Rainbow Basin (P28),
and route rehabilitation and signing will continue in 2011;
The Department of Defense (DOD) intends to transfer
management of lands they have acquired for conservation within the ACEC
boundaries to the Bureau in 2011 (P29);
Mining claimholders are being contacted to determine if
any of these claims could be surrendered (P30); and
The Bureau has installed post and cable fencing to prevent
access to Coolgardie Mesa from Rainbow Basin (P31).
In addition, the Bureau reports that ranger patrols have increased in
the Coolgardie Mesa area with additional funding provided by the DOD.
Our Response: We appreciate receiving these comments and note the
Bureau's continuing efforts to implement conservation measures for this
species.
State Agency Comments
Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for his failure to adopt
regulations consistent with the agency's comments or petition.'' In
2004, we contacted the California Department of Fish and Game (CDFG)
concerning the previous 2004 proposed critical habitat designation;
however, the agency chose not to submit comments on the proposed
critical habitat designation for Astragalus jaegerianus. The State
notified us that submitting comments on the proposed critical habitat
designation was a low priority for them because they are participants
in the WMP planning process, and have previously commented on the
conservation measures that were proposed for A. jaegerianus in the
draft WMP (CDFG 2003, in litt., pp. 71-72). Furthermore, many of the
private parcels that would be subject to State environmental
regulations have been or are being purchased by DOD and transferred to
the Bureau for inclusion in the Coolgardie and Paradise ACECs. Because
of this action, the State's concern over private lands issues has been
greatly diminished in this area. We contacted the CDFG again in 2010
concerning our most recent proposed revised critical habitat
designation; the State provided no comments.
Public Comments
Comment 4: One commenter was concerned that the public did not have
adequate notification concerning the proposed revised critical habitat
designation and that there should have been a meeting with all
concerned parties.
Our Response: The Service conducted outreach by notifying
appropriate elected officials, local jurisdictions, interested parties,
and members of the public that had been identified during the previous
critical habitat designation process in 2004-2005. We also published a
legal notice in the Barstow Dispatch on April 7, 2010, concerning the
proposed revised critical habitat designation and the first open
comment period; published a news release; and posted information on the
Ventura Fish and Wildlife Office Web site as well as on
www.Regulations.gov. The second comment period was similarly noticed by
a news release and postings on our office's Web site and
www.Regulations.gov. In addition, we received no requests for a public
hearing from members of the public when the proposed revised critical
habitat designation was published. We believe we have provided
sufficient opportunity for public comment with two open comment periods
totaling 90 days.
Comment 5: Several commenters expressed concern over the amount of
acreage that was being ``set aside'' and how this would affect the high
desert community and their freedom to enjoy the desert. One commenter
thought that
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these lands could not be enjoyed by future generations because they are
locked away from motorized travel.
Our Response: As discussed in the Background of the Critical
Habitat section of this rule, 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
the government or public to access private lands, or require
implementation of restoration, recovery, or enhancement measures by
private landowners. Designation of critical habitat only affects
activities authorized, funded, or carried out by Federal agencies. Some
kinds of activities are unlikely to have any Federal involvement, and
so, will not be affected by critical habitat designation (see Effects
of Critical Habitat Designation section below). We anticipate that the
Bureau will continue to allow access to and manage vehicle use and
other recreational activities within this area according to the
provisions of the WMP amendment to the CDCA (California Desert
Conservation Area) Plan. The critical habitat designation does not
affect private lands or other non-Federal lands unless a Federal agency
proposes to authorize, fund, or carry out an activity on those lands.
Comment 6: One commenter questioned whether private landowners
would be ``excluded'' from the area.
Our Response: Private landowners are not excluded and may still
access their lands that fall within a critical habitat designation. As
discussed above, the designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area, and it does not alter, in any manner,
landowners' access to their lands. In addition, it does not require
private landowners to implement restoration, recovery, or enhancement
measures. See Effects of Critical Habitat Designation section below and
the 2010 DEA for additional information on the implications of critical
habitat designation to private landowners.
Comment 7: One commenter requested that we expand the habitat of
Astragalus jaegerianus because it is the ``primary food of many species
and has potential medical benefits for humans.''
Our Response: We have designated all areas where Astragalus
jaegerianus is known to exist outside of Fort Irwin as critical
habitat. Based on numerous surveys, we do not expect to find additional
occurrences outside of the designated area; also, given the species'
specific ecological needs, we cannot reasonably expect to expand the
area that it inhabits. The commenter did not provide information
documenting the use of A. jaegerianus as a source of food or medicine,
and at this time, we have no information to indicate that A.
jaegerianus is the primary food of any species, although it may have
some, as yet undetermined, medical value to humans.
Comment 8: Several commenters noted that they enjoy panning for
gold in the open desert or working small mining claims in the
Coolgardie Mesa area and do not wish to see the area closed.
Our Response: The designation of critical habitat for Astragalus
jaegerianus will not result in closure of any areas. As we have noted
previously, it will not affect non-Federal lands, unless a Federal
agency is proposing to authorize, fund, or carry out an action on that
land. Although the designation of critical habitat may require the
Bureau to reassess its land use plans, recreational activities such as
panning for gold are not expected to negatively affect land use within
the area. Under the casual use provisions of the CDCA Plan, individuals
may continue to pan for gold. In general, we do not expect that such
use, which is conducted on a fairly small scale, will compromise the
function of critical habitat for A. jaegerianus; consequently, at this
time, we do not anticipate requesting that the Bureau reassess the
provisions of the CDCA Plan with regard to this activity.
Sites where mining claims have been worked previously are unlikely
to support the primary constituent elements (PCEs) of critical habitat
because they are typically located in pockets of deeper soils where
Astragalus jaegerianus does not grow. Because Astragalus jaegerianus
occurs only under specific habitat conditions, we expect that the
Bureau is unlikely to alter the use of those claims.
We note, however, that one of the purposes of the designation of
critical habitat is to provide for the conservation of listed species.
If we, or the Bureau, identified an area within critical habitat that
contained the PCEs and was threatened by mining activities, we would
work with the Bureau and claimants to attempt to conserve the critical
habitat values of that area. After the close of the comment period for
this rule, we received information that ``prybar mining'' had been
observed at one site on Coolgardie Mesa adjacent to known Astragalus
jaegerianus plants (Silverman 2011 in litt.). Unlike the traditional
gold panning or drywash methods of mining, this method uses a prybar to
break apart rock outcrops; such outcrops are found adjacent to shallow-
soiled areas where Astragalus jaegerianus grows. We have notified the
Bureau regarding this information and will work with them to evaluate
potential impacts to the species.
Comment 9: One commenter notes that ``nothing lasts forever'' and
that we should use our resources to ``recultivate'' rather than
preserving our world as a museum.
Our Response: We recognize that the natural world is one of change.
Astragalus jaegerianus is, however, threatened by human activities and
the designation of critical habitat is one tool we can use to reduce or
eliminate those threats. Our goal in conserving A. jaegerianus is not
to create a static museum display, but to conserve the species and the
ecosystem upon which it depends. We acknowledge that this ecosystem may
change to the point that it no longer supports this species; however,
our goal is to ensure that the changes are effected by the natural
world, and not human activities.
Comment 10: One commenter described the level of unauthorized OHV
use that they have observed on Coolgardie Mesa, and notes that this use
has killed several individuals of Astragalus jaegerianus. The commenter
notes that this unauthorized use has increased from 2001 to 2010, and
that a fence constructed by the Bureau has eliminated one area of
extensive unauthorized use, but that the use has shifted to nearby
areas.
Our Response: We acknowledge that unauthorized off-highway use of
areas occupied by Astragalus jaegerianus continues. We will continue to
work with the Bureau to attempt to manage off-highway vehicle use
within the area of critical habitat so public land users have access to
Coolgardie Mesa in a manner that will facilitate the conservation of A
jaegerianus.
Comment 11: One commenter notes he has never encountered a Bureau
ranger or other law enforcement officer on Coolgardie Mesa and
anticipates that the Bureau or Service will install a fence to prevent
access to public lands.
Our Response: The Service is aware that the Bureau cannot maintain
a constant law enforcement presence in the Coolgardie Mesa area; and we
continue to work with the Bureau to attempt to increase the public's
compliance with existing land-use regulations. We understand that the
Bureau will continue to install fencing along designated open routes of
travel to prevent unauthorized off-road vehicle use. To the best of our
knowledge, the Bureau has no intention of installing a fence around the
boundaries of critical
[[Page 29112]]
habitat, and the Service has no authority to install such a fence.
Comment 12: One commenter urged the Service to think about how the
potential development of large-scale solar and wind projects in the
desert could affect Astragalus jaegerianus, and questioned whether more
critical habitat should be set aside given these future losses of
desert habitat.
Our Response: Because extensive surveys have been conducted for
Astragalus jaegerianus, including in areas outside the known geographic
range of the species, we have a high level of certainty that A.
jaegerianus does not occur in other areas of the Mojave Desert.
Therefore, we anticipate that large-scale solar and wind energy
projects across the Mojave Desert and future losses of desert habitat
that may occur will not affect A. jaegerianus.
With respect to the geographic area within the Mojave Desert where
Astragalus jaegerianus occurs, management of this habitat was discussed
in the April 1, 2010, proposed revised critical habitat designation (75
FR 16404). Congress passed the Energy Policy Act of 2005; subsequently,
the Bureau issued step-down orders that address more specifically how
to implement the Energy Policy Act of 2005 (for example, Order No. 3283
(DOI 2009a pp. 1-2) and Order No. 3285 (DOI 2009b pp. 1-3)). In
addition, the Bureau has issued its own guidelines for implementing
these policies and orders on Bureau lands. For instance, in 2008, the
Bureau issued Instruction Memorandum (IM) 2009-043, the Wind Energy
Development Policy, which includes guidelines for the development of
wind energy projects within designated ACECs (Bureau 2008, p. 2). No
alternative energy projects have been permitted or proposed within
areas we are designating as critical habitat for A. jaegerianus,
although the Bureau has received expressions of interest from wind
energy companies that are seeking sites for wind energy development.
Comment 13: One commenter reported seeing Astragalus jaegerianus
outside of the area included in the proposed revised critical habitat
designation, and included photos showing plants growing adjacent to OHV
trails.
Our Response: We examined the photos and determined the subject
plants are not Astragalus jaegerianus, but a species of larkspur
(Delphinium) in the buttercup family (Ranunculaceae).
Comment 14: One commenter stated that the proposed revised critical
habitat designation failed to include adequate critical habitat to
protect and conserve all known extant occurrences of Astragalus
jaegerianus.
Our Response: As per guidance on determining critical habitat, we
took into consideration all known extant occurrences of Astragalus
jaegerianus (see previous April 6, 2004, proposed critical habitat
designation (69 FR 18018), and the April 1, 2010, proposed revised
critical habitat designation (75 FR 16404). All known occurrences of A.
jaegerianus are included in our final critical habitat designation,
with the exception of lands within Fort Irwin, which are exempted under
section 4(a)(3) of the Act due to an approved INRMP that benefits the
conservation of the species. See the Exemptions section below.
Comment 15: One commenter asserts that the proposed revised
critical habitat designation ignored the recovery goal of critical
habitat because we did not include unoccupied habitat for recovery of
the species (as per Gifford Pinchot Task Force v. U.S. Fish and
Wildlife Service 378 F.3d 1059, 1069-70 (9th Circuit 2004) ruling). The
commenter also refers to an analysis of listed species with and without
critical habitat that indicates species with critical habitat are more
likely to be recovering than species that lack the designation (and
cites Taylor et al. 2005). The commenter suggests we should have used
robust models for conservation design (and cites Burgman et al. 2001)
to estimate additional areas important for recovery of the species.
Our Response: A critical habitat designation does not need to
include habitat unoccupied at the time of listing for recovery of the
species. We can include such habitat areas if we determine that those
lands are essential for the conservation of the species. However, in
this case, we did not designate any areas outside the geographical area
occupied by the species because: (1) We believe the size of the
occupied areas are sufficient for the conservation of the species, and
(2) based on extensive surveys for the species, these areas best
represent what is needed for the conservation of the species.
With respect to the comment that species with critical habitat are
more likely to be recovering than species that lack the designation, we
note that in Taylor et al. (2005), the authors opine that this may be
the case because, in practice, land managers have often given
significant protection to critical habitats. In the case of Astragalus
jaegerianus, we note that the Bureau had already developed
recommendations to establish ACECs on Coolgardie Mesa and Paradise, and
provide conservation-oriented management prescriptions in the draft
WMP, prior to the publication of our previous 2004 proposed critical
habitat designation.
With respect to using robust models for conservation design, we
acknowledge it would be useful to have sufficient biological
information to construct such a model. In this case, however, because
we do not have the level of detail necessary to develop the type of
model used in Burgman et al. (2001), we are using the best available
scientific information to identify critical habitat, as described in
the Methods section.
Comment 16: One commenter stated that the critical habitat
designation should be based on conservation biology principles and
include sufficient lands to maintain connectivity and reduce
fragmentation between populations (as cited in the literature, e.g.,
Debinski, and Holt 2000, Noss et al. 1997, Honnay and Jacquemyn 2006),
especially since intervening habitat is important for pollinators.
Furthermore, genetic studies on Astragalus jaegerianus indicate an
already limited gene flow between populations, and further isolation
may decrease genetic variation and ability of the species to adapt to
environmental variation (Noss et al. 1997).
Our Response: We agree that principles of conservation biology
(including maintaining gene flow between populations) are useful to
consider in identifying critical habitat. We have acknowledged their
importance in our discussion under the Physical and Biological Features
and Methods sections in this final revised critical habitat designation
and the April 1, 2010, proposed revised critical habitat designation
(75 FR 16404), and have used the best scientific information available
in the development of this designation. The critical habitat
designation in and of itself will do nothing one way or the other to
affect the degree of fragmentation between populations.
Comment 17: One commenter stated that it is important to include
currently unoccupied habitat for the species in the critical habitat
designation because of the potential effects of climate change on
temperature and precipitation, even if these are not well-understood.
Our Response: While climate change modeling has been undertaken for
the Great Basin and Sonoran Desert regions (for example, see Redmond
2010), very little modeling has been conducted for the Mojave Desert
region to date. Recent studies, however, have discussed the effects of
drought on desert shrubs
[[Page 29113]]
including localized diebacks and drought-pruning (for example, see
Breshears et al. 2005, pp. 15144-15148; Hereford et al. 2006, pp. 13-
34; Haymerlynck and Huxman 2009, pp. 582-585; and McAuliffe and
Haymerlynck 2010, pp.885-896). Huggins et al. (2010, pp. 120-128)
studied the effects of recent drought on host shrubs that support
Astragalus jaegerianus and found higher survival rates of A.
jaegerianus in host shrubs with more intact canopies, providing the
first evidence that recent drought conditions in the Mojave Desert
could be indirectly affecting the survivorship of A. jaegerianus.
However, based on the best available scientific information, we are
unable to predict at this time additional areas that could support A.
jaegerianus in the future.
Comment 18: One commenter stated that the Service should not
exclude areas that are covered by the Bureau's WMP from the critical
habitat designation by using the logic that they do not need ``special
management'' or through an exclusion through section 4(b)(2) of the
Act; by definition, these areas qualify as critical habitat.
Our Response: Our revised final critical habitat designation
includes all Bureau lands that are included in the WMP.
Comment 19: One commenter notes that Fort Irwin does not seem to be
affected by the designation of critical habitat.
Our Response: In 2004, Congress amended the Act to exempt DOD-
managed lands from critical habitat designations if the military
installation has an INRMP that is determined to provide a benefit to
the species. Fort Irwin has such a plan that the Service has reviewed
and approved. We acknowledge that military training at Fort Irwin will
result in the loss of habitat for Astragalus jaegerianus; however, the
Army has also established two areas, totaling 6,772 ac (2,741 ha),
where all training will be prohibited to protect this species. In
another area, comprising 3,700 ac (1,497 ha), all vehicular traffic
will be restricted to a limited number of roads to protect A.
jaegerianus.
Comments Related to the Draft Economic Analysis
Comment 20: One commenter stated that the economic analysis needs
to include all habitat currently occupied by Astragalus jaegerianus,
including lands on Fort Irwin, and not rely on the ``flawed'' proposed
revised critical habitat designation as the basis for the analysis.
Our Response: The DEA includes a discussion of all geographic areas
occupied by the species; the areas occupied by the species on Fort
Irwin are not included in the designation because they are exempted
through section 4(a)(3)(b) of the Act.
Comment 21: One commenter stated that the DEA incorrectly asserts
that, ``[a]ll Federal land is managed for purposes of Astragalus
jaegerianus conservation according to the WMP.'' The comment notes
that, while some of the areas proposed for critical habitat are within
ACECs designated by the WMP, these areas still allow some level of OHV
use, causing habitat fragmentation and opportunities for illegal OHV
use in the areas designated as critical habitat.
Our Response: The final EA has been amended to state that all
Bureau lands are managed according to the WMP for the purposes of
Astragalus jaegerianus conservation. The objective of the WMP is to
provide a conservation strategy for sensitive plant and animal species,
including A. jaegerianus. The DEA does not assert that the management
of the proposed critical habitat area according to the WMP precludes
all OHV use within the boundaries of the proposed critical habitat
area. Specifically, Section 3.2.2 of the DEA describes that vehicle
routes within the proposed critical habitat area are classified under
the WMP as open, closed, or limited, and all OHV-users must comply with
the road designations. Section 3.2.2 further describes that because of
damage related to unauthorized use, the Bureau has fenced portions of
the West Paradise ACEC and the Coolgardie Mesa ACEC. As noted in the
final EA, however, ``Vehicle use will not be altogether precluded, due
to the need to provide access to the private lands and mining claims.''
The DOD is not permitting any activities on DOD lands within the
boundaries of the ACECs, since the intent of their acquisition is to
transfer them to the Bureau.
Comment 22: A comment provided on the DEA states that there is some
development pressure, particularly with regard to wind energy
development, on private parcels within the ACEC areas until these
parcels are acquired to consolidate public land ownership.
Our Response: As described in Section 3.1 of the DEA, the private
parcels within the proposed designation are primarily homesteads
interspersed within the ACECs. No development activities, such as wind
energy projects, have been subject to section 7 consultation under the
Act regarding the Astragalus jaegerianus on these private lands. While
it is possible that such projects may be proposed in the future, only
those projects subject to a Federal nexus (i.e., projects permitted,
funded, or carried out by a Federal agency) may result in section 7
consultation with the Service. No such consultations have occurred for
any projects on private lands in A. jaegerianus habitat to date. The
probability of future wind energy projects being proposed on private
lands within the proposed critical habitat area is uncertain; however,
we do not anticipate any development of wind energy in the area. See
also response to Comment 12 above and the Energy Supply, Distribution,
or Use section below.
Comment 23: Multiple comments state that any restrictions placed
upon the proposed critical habitat area will result in losses to miners
and OHV users. One of these comments further states that recreationists
contribute millions of dollars to the regional economy. Another comment
asserts the DEA does not correctly assess the effect of restrictions on
certain land-use activities on local, regional, and national economies.
Our Response: Section 3.2 of the DEA describes that land use
activities, such as mining and OHV recreation, are currently restricted
within the proposed critical habitat area, even absent critical habitat
designation. The Federal lands in the proposed critical habitat area
(79 percent of the proposed critical habitat) are managed for
Astragalus jaegerianus conservation according to the WMP, which has
limited access to the habitat area through closing some vehicle routes
and fencing ACECs containing A. jaegerianus habitat. Section 3.3.1 of
the DEA describes that, due to the existing management of habitat
threats through the WMP, critical habitat for A. jaegerianus is not
expected to result in additional conservation measures for the species
on Federal lands. Section 3.3.2 of the DEA further describes that the
private land uses within proposed critical habitat (small scattered
parcels containing homesteads) are not likely to trigger section 7
consultation or the California Environmental Quality Act (CEQA)
requirements and, therefore, critical habitat designation of these
lands is not anticipated to restrict land-use activities. Thus, the DEA
does not expect critical habitat to generate any additional
restrictions on land-use activities that will result in impacts to the
local, regional, or national economies.
Comment 24: A comment provided on the DEA suggests that, if there
are no economic costs associated with the critical habitat designation
due to the existing conservation measures for the
[[Page 29114]]
species, it is likely that there is no need for the designation. The
comment further states that the designation must result in some
economic impacts due to project delays and costs of consultation with
the Service.
Our Response: Even though there were no economic costs identified
in the final EA associated with the critical habitat designation due to
existing conservation measures for the species, the areas proposed for
designation meet the definition of critical habitat, and therefore are
included in the designation.
Section 3.3.1 of the DEA describes that critical habitat
designation is not expected to result in additional section 7
consultations. The section also notes that any future consultations
considering Astragalus jaegerianus will experience some incremental
administrative costs to consider potential adverse modification of
critical habitat. Due to the continued management of the critical
habitat area by the Bureau according to the WMP, however, the DEA
anticipates only a single, informal consultation with the Bureau
regarding the pending land transfer between the DOD and the Bureau. The
Bureau does not anticipate consulting with the Service on other land
management activities, and no consultations are forecast to occur for
activities on private lands. Thus, the DEA concludes that the
incremental administrative costs of consultation associated with the
critical habitat designation are most likely to be negligible; the DEA
did not predict any project delays.
Comment 25: One comment asserts that the DEA fails to calculate the
benefits of the critical habitat designation, stating that all types of
benefits should be assessed and quantified or, where quantification is
inappropriate or too speculative, should be described qualitatively to
allow for a comparison of costs to benefits.
Our Response: As described in Section 3.4 of the DEA, critical
habitat designation is not expected to generate: (1) Additional
conservation efforts for Astragalus jaegerianus; (2) changes in
economic activity; or (3) changes to land management. Absent any
changes in the above, no incremental economic benefits are forecast to
result from the designation of critical habitat.
We believe the commenter is referring to benefits with respect to
broader social values, which are not the same as economic impacts.
While the Secretary must consider economic and other relevant impacts
as part of the final decisionmaking process under section 4(b)(2) of
the Act, the Act explicitly states that it is the government's policy
to conserve all threatened and endangered species and the ecosystems
upon which they depend. Thus we believe that explicit consideration of
broader social values for the species and its habitat, beyond the more
traditionally defined economic impacts, is not necessary, because
Congress has already clarified the social importance of the species and
its habitat. As a practical matter, we note the difficulty in being
able to develop credible estimates of such values as they are not
readily observed through typical market transactions. In sum, we
believe that society places the utmost value on conserving any and all
threatened and endangered species and the habitats upon which they
depend and thus we need only to consider whether the economic impacts
(both positive and negative) are significant enough to merit exclusion
of any particular area without causing the species to go extinct.
Comment 26: A comment provided on the DEA states that the document
should explain the differences between the October 2004 DEA of the
previous proposed critical habitat designation for Astragalus
jaegerianus and the 2010 DEA of the proposed revised critical habitat
designation. The 2004 analysis quantified both pre-designation
(occurring from the time of listing to final critical habitat
designation) and post-designation impacts, estimating $5.84 million to
$13.01 million in post-designation impacts. The 2010 DEA, however, does
not quantify any impacts. The comment further asserts that there must
be some economic impact associated with fencing areas, effects on
military activities, relocating OHV use, and precluding mining and
energy projects.
Our Response: Section 1.3 of the DEA describes the differences
between the 2005 Economic Analysis (which is the final version of the
October 2004 DEA referenced in this comment) and the 2010 DEA of the
revised proposed critical habitat.
First, the 2005 Economic Analysis and the 2010 DEA apply different
analytic frameworks. The 2005 Economic Analysis quantified impacts of
all Astragalus jaegerianus conservation in the areas being proposed as
critical habitat, regardless of whether the conservation efforts were
occurring due to critical habitat designation or other baseline
regulations or conservation plans. As a result, the impacts quantified
in the 2005 Economic Analysis include impacts due to such baseline
protections as Federal listing of A. jaegerianus, implementation of the
West Mojave Plan, and DOD conservation efforts for A. jaegerianus at
the National Training Center at Fort Irwin (NTC). The 2010 DEA,
however, focuses on those impacts resulting incrementally from critical
habitat designation, as described in Chapter 2. That is, we do not
include impacts of A. jaegerianus conservation occurring due to the
implementation of baseline protections, plans, or regulations. Thus,
impacts of activities such as fencing, limiting OHV activity, mining,
and energy projects are not quantified in the 2010 DEA, as they are
expected to occur regardless of the critical habitat designation.
Second, the proposed critical habitat area considered in the 2005
Economic Analysis was more than double the proposed critical habitat
area being considered in the 2010 DEA. The primary reason for the
difference in scope is that the Service's 2010 proposed revised
critical habitat designation exempted 16,462 ac (6,662 ha) located
within DOD's National Training Center at Fort Irwin from critical
habitat designation. Because this area is exempt from critical habitat
designation, no impacts of critical habitat are expected to occur on
these lands.
Summary of Changes From the Proposed Revised Rule and Previous Critical
Habitat Designation
In our final revised critical habitat rules, we typically provide a
Summary of Changes that compares the final revised critical habitat
designation with the previously proposed revised critical habitat
designation as well as with previously designated critical habitat.
However, we designated zero (0) ac (0 ha) in our previous designation.
Therefore, we are also providing comparison between the previously
proposed critical habitat designation from April 6, 2004 (69 FR 18018),
the proposed revised critical habitat designation from April 1, 2010
(75 FR 16404), and this final revised critical habitat designation.
There are no changes from the April 1, 2010, proposed revised critical
habitat designation and this final revised critical habitat
designation. This final revised critical habitat designation compares
with the previous April 6, 2004, proposed designation (69 FR 18018) as
follows:
(1) In 2004, we proposed 9,627 ac (3,896 ha) of Bureau lands and
4,427 ac (1,792 ha) of private lands. Currently we are designating
9,888 ac (4,002 ha) of Bureau lands and 2,899 ac (1,169 ha) of private
lands.
(2) In 2004, we proposed 211 ac (85 ha) of lands inaccurately
identified as
[[Page 29115]]
State lands. In this revised designation we are not including, through
exemption under section 4(a)(3) of the Act, 211 ac (85 ha) of the NTC
lands covered under the Army's INRMP. The land was inaccurately
identified as State Lands in our 2004 proposed critical habitat rule.
(3) In this revised designation we are including 1,282 ac (519 ha)
of lands that were formerly in private ownership but have been acquired
by the DOD for the purposes of conservation of Astragalus jaegerianus.
These lands are not contiguous with the NTC and are not covered under
the Army's INRMP.
(4) We are not designating through exemption under section 4(a)(3)
of the Act, 16,462 ac (6,662 ha) of the NTC lands covered under the
Army's INRMP.
Below, table 1 compares the acreage by land ownership included in
the previous 2004 proposed critical habitat designation and the
previous 2005 final critical habitat designation, with what we proposed
in the 2010 revision and are including in this final revised critical
habitat designation.
Table 1--Comparison of Acreages Included in Previous and Current Rulemaking Actions for Astragalus jaegerianus
----------------------------------------------------------------------------------------------------------------
2005 final 2010 proposed
2004 proposed revision to the revised critical 2011 final revised
Name of critical habitat unit designation of critical habitat habitat critical habitat
critical habitat designation (70 FR designation (75 FR designation
(69 FR 18018) 18220) 16404)
----------------------------------------------------------------------------------------------------------------
Goldstone-Brinkman............. 9,906 ac (4,008 ha) Excluded (all) 0 10,394 ac (4,206 10,394 ac (4,206
ac (0 ha). ha) exempted due ha) exempted due
to INRMP on NTC to INRMP on NTC
lands. lands.
Paradise....................... 6,828 ac (2,763 ha) Excluded (all) 0 A portion exempted A portion exempted
ac (0 ha). due to INRMP on due to INRMP on
NTC lands, 6,068 NTC lands, 6,068
ac (2,456 ha); a ac (2,456 ha); a
portion included portion included
964 ac (390 ha). 964 ac (390 ha).
Coolgardie..................... 12,788 ac (5,175 Excluded (all) 0 13,105 ac (5,303 13,105 ac (5,303
ha). ac (0 ha). ha) included. ha) included.
Totals..................... 29,522 ac (11,947 0 ac (0 ha)....... 14,069 ac (5,693 14,069 ac (5,693
ha). ha). ha).
----------------------------------------------------------------------------------------------------------------
Note: Land areas may not sum due to rounding.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) 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
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
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 that are necessary to bring
an 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 otherwise be relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies insure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not 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 the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner seeks or requests Federal
agency funding or authorization of an action that may affect a listed
species or critical habitat, the consultation requirements of section
7(a)(2) of the Act would apply, but even in the event of a destruction
or adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
For inclusion in a critical habitat designation, the habitat within
the geographical area occupied by the species at the time it was listed
must contain physical and biological features (PBFs) which are
essential to the conservation of the species and which may require
special management considerations or protection. Critical habitat
designations identify, to the extent known using the best scientific
and commercial data available, those PBFs that are essential to the
conservation of the species (such as space, food, cover, and protected
habitat), focusing on the principal biological or physical constituent
elements (primary constituent elements) within an area that are
essential to the conservation of the species (such as roost sites,
nesting grounds, seasonal wetlands, water quality, tide, soil type).
Primary constituent elements are the elements of PBFs that, when laid
out in the appropriate quantity and spatial arrangement to provide for
a species' life-history processes, are essential to the conservation of
the species.
Under the Act, we can designate critical habitat in areas outside
the geographical area occupied by the species at the time it is listed,
upon a determination that such areas are essential for the conservation
of the species. According to regulations at 50 CFR 424.12, we designate
critical habitat in areas outside the geographical area presently
occupied by a species only when a designation limited to its present
range would be inadequate to ensure the conservation of the species.
When the best available scientific data do not demonstrate that the
[[Page 29116]]
conservation needs of the species require such additional areas, we
will not designate critical habitat in areas outside the geographical
area occupied by the species. An area currently occupied by the species
but that was not occupied at the time of listing may, however, be
essential to the conservation of the species and may be included in the
critical habitat designation.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality
Guidelines, provide criteria, establish procedures, and provide
guidance to ensure that our decisions are based on the best scientific
data available. They require our 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 we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species and
any previous designation of critical habitat. Additional information
sources may include the recovery plan, 5-year reviews 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.
Habitat is dynamic, and species may move from one area to another
over time. Climate change will be a particular challenge for
biodiversity because the interaction of additional stressors associated
with climate change and current stressors may push species beyond their
ability to survive (Lovejoy 2005, pp. 325-326). The synergistic
implications of climate change and habitat fragmentation are the most
threatening facet of climate change for biodiversity (Hannah et al.
2005, p. 4). Current climate change predictions for terrestrial areas
in the Northern Hemisphere indicate warmer air temperatures, more
intense precipitation events, and increased summer continental drying
(Field et al. 1999, pp. 1-3; Hayhoe et al. 2004, p. 12422; Cayan et al.
2005, p. 6; Intergovernmental Panel on Climate Change 2007, p. 1181).
Climate change may lead to increased frequency and duration of severe
storms and droughts (Golladay et al. 2004, p. 504; McLaughlin et al.
2002, p. 6074; Cook et al. 2004, p. 1015).
Some efforts have been made to predict the effects of climate
change in the Western States region (see Redmond 2010). However,
predictions of climatic conditions for smaller subregions, such as the
Mojave Desert in California, remain uncertain. It is unknown at this
time if climate change in the Mojave Desert in California will result
in a warmer trend with localized drying, higher precipitation events,
or other effects. Thus, the information currently available on the
effects of global climate change and increasing temperatures does not
make sufficiently precise estimates of the location and magnitude of
the effects. Nor are we currently aware of any climate change
information specific to the habitat of Astragalus jaegerianus that
would indicate what areas may become important to the species in the
future. Therefore, we are unable to determine what additional areas, if
any, may be appropriate to include in the final revised critical
habitat for this species to respond to potential effects of climate
change.
We specifically requested information from the public on the
currently predicted effects of climate change on Astragalus jaegerianus
and its habitat, and we have included a discussion of potential effects
of the current drought on host shrubs and indirect effects on A.
jaegerianus (Huggins et al. 2010, pp. 120-128). Should drought
conditions continue in the Mojave Desert, regardless of whether it is
caused by climate change or other short-term weather variation, it may
affect the long-term persistence of A. jaegerianus. We recognize that
critical habitat designated at a particular point in time may not
include all of the habitat areas that we may later determine are
necessary for the recovery of the species. For these reasons, a
critical habitat designation does not signal that habitat outside the
designated critical habitat area is unimportant or may not be required
for recovery of the species.
Areas that are important to the conservation of the species, both
inside and outside the critical habitat designation, will continue to
be subject to: (1) Conservation actions implemented under section
7(a)(1) of the Act, (2) regulatory protections afforded by the
requirement in section 7(a)(2) of the Act for Federal agencies to
insure their actions are not likely to jeopardize the continued
existence of any endangered or threatened species, and (3) the
prohibitions of section 9 of the Act if actions occurring in these
areas may affect the species. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. These
protections and conservation tools will continue to contribute to
recovery of this species. 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 (HCPs), or other species
conservation planning efforts if new information available at the time
of these planning efforts calls for a different outcome.
Physical and Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied at the time of listing to propose as
critical habitat, we consider the physical and biological features 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:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historic, geographical, and ecological
distributions of a species.
We derive the specific PBFs required for Astragalus jaegerianus
from studies of this species' habitat, ecology, and life history as
described in the Critical Habitat section of the proposed revised rule
to designate critical habitat published in the Federal Register on
April 1, 2010 (75 FR 16404), and in the information presented below.
Additional information can be found in the final listing rule published
in the Federal Register on October 6, 1998 (63 FR 53596), and the
previous proposed critical habitat designation (69 FR 18018; April 6,
2004).
The revised critical habitat is designed to provide sufficient
habitat to maintain self-sustaining populations of
[[Page 29117]]
Astragalus jaegerianus throughout its range and to provide those
habitat components essential for the conservation of the species. We
have determined for the revised critical habitat that A. jaegerianus
requires the following PBFs: (1) Habitat for individual and population
growth, including sites for germination, pollination, reproduction,
pollen and seed dispersal, and seed banks; (2) sites for the host
plants that provide structural support for A. jaegerianus; (3)
intervening areas that allow gene flow and provide connectivity or
linkage within segments of the larger population; and (4) areas that
provide basic requirements for growth, such as water, light, and
minerals.
Primary Constituent Elements for Astragalus jaegerianus
Under the Act and its implementing regulations, we are required to
identify the PBFs essential to the conservation of Astragalus
jaegerianus in areas occupied at the time of listing, focusing on the
features' PCEs. We consider PCEs to be the elements of the PBFs that
are essential to the conservation of the species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine that the PCEs specific to
Astragalus jaegerianus are:
(1) Shallow soils at elevations between 3,100 and 4,200 feet (ft)
(945 to 1,280 meters (m)) derived primarily from Jurassic or Cretaceous
granitic bedrock, and less frequently on soils derived from diorite or
gabbroid bedrock, or on granitic soils overlain by scattered rhyolitic
cobble, gravel, and sand.
(2) Host shrubs at elevations between 3,100 and 4,200 ft (945 to
1,280 m). The primary host shrubs include but are not limited to:
Thamnosma montana (turpentine bush), Ambrosia dumosa (burro bush),
Eriogonum fasciculatum ssp. Polifolium (California buckwheat),
Ericameria cooperi var. cooperi (golden bush), Ephedra nevadensis
(Mormon tea), and Salazaria mexicana (paperbag bush) that are usually
found in mixed-desert-shrub communities.
With this designation of critical habitat, we intend to identify
the PBFs essential to the conservation of the species, through the
identification of the appropriate quantity and spatial arrangement of
the PCEs sufficient to support the life-history processes of the
species. All units and subunits designated as critical habitat are
currently occupied by Astragalus jaegerianus and contain the PCEs in
the appropriate quantity and spatial arrangement sufficient to support
the life-history needs of the species.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain the features that are essential to the conservation
of the species and may require special management considerations or
protection.
A detailed discussion of threats affecting the PBFs essential to
the conservation of Astragalus jaegerianus, and that may require
special management considerations or protection, can be found in the
previous proposed critical habitat designation of April 6, 2004 (69 FR
18018), and the 5-year review (Service 2008, pp. 1-21). In summary,
these threats include surface mining, unauthorized OHV recreation,
military training activities, competition with nonnative species, and
habitat fragmentation. In addition, the Bureau has received interest
from wind energy companies that are seeking sites for wind energy
development, although no specific plans for the areas occupied by
Astragalus jaegerianus are currently being considered for any energy
development projects.
The areas included in this revised critical habitat designation
will require some level of management to address the current and future
threats to Astragalus jaegerianus and to maintain the PBFs essential to
the conservation of the species. In units that were occupied at the
time of listing and are currently occupied, special management will be
needed to ensure that designated habitat is able to provide areas for
germination, pollination, reproduction, and sites for the host plants
that provide structural support for A. jaegerianus; intervening areas
that allow gene flow and provide connectivity or linkage within
segments of the larger population; and areas that provide basic
requirements for growth, such as water, light, and minerals.
There will be impacts from military activities on Astragalus
jaegerianus and its habitat at NTC. We will not discuss these impacts
any further, because areas where A. jaegerianus occurs on NTC are being
exempted (see Exemptions section below). Army-owned lands in the
Paradise and Coolgardie units that are not part of the NTC were
purchased for A. jaegerianus conservation and will not be impacted by
military activities.
The designation of critical habitat does not imply that lands
outside of critical habitat do not play an important role in the
conservation of Astragalus jaegerianus. Activities with a Federal nexus
that may affect those areas outside of critical habitat, such as
surface mining, off-highway vehicle recreation, land transfer programs,
and military training activities, are still subject to review under
section 7 of the Act, if they may affect A. jaegerianus. The
prohibitions of section 9 of the Act applicable to plants also continue
to apply both inside and outside of designated critical habitat. With
respect to plants, section 9 of the Act includes among its prohibitions
the import or export of listed species, the removal to possession or
malicious damage or destruction of species on areas under Federal
jurisdiction, or the removal, damage, or destruction of species in
violation of State law (16 U.S.C. 1538(a)(2)).
Criteria Used To Identify Critical Habitat
As required by section 4(b)(1)(A) of the Act, we used the best
scientific and commercial data available to designate critical habitat.
We reviewed available information pertaining to the habitat
requirements of this species. In accordance with the Act and its
implementing regulation at 50 CFR 424.12(e), we considered whether
designating additional areas--outside those currently occupied as well
as those occupied at the time of listing--is necessary to ensure the
conservation of the species. We are not designating any areas outside
the geographical area occupied by the species because occupied areas
are sufficient for the conservation of the species.
The material we used to determine critical habitat for Astragalus
jaegerianus included the 1998 final listing rule (63 FR 53596; October
6, 1998), the 2004 proposed critical habitat designation (69 FR 18018;
April 6, 2004), data in reports submitted during section 7
consultations and by biologists holding section 10(a)(1)(A) recovery
permits, research published in peer-reviewed articles and presented in
academic theses and agency reports, the 5-year review for A.
jaegerianus (Service 2008, pp. 1-21), Army surveys of 2001 (Charis
2002, pp. 1-85), and regional geographic information system (GIS)
coverages. We analyzed this information to develop criteria for
identifying areas that contain the PCEs in the appropriate quantity and
spatial arrangement essential to the conservation of the A. jaegerianus
that may require special management considerations or protection, or
that are essential for the conservation of A. jaegerianus. Extensive
surveys funded by the Army were conducted in 2001 (Charis 2002).
[[Page 29118]]
The 2001 surveys were conducted under optimal growing conditions for
the species and contributed greatly to our knowledge of the overall
distribution and abundance of A. jaegerianus.
We are designating all habitat occupied by Astragalus jaegerianus
during the extensive Army surveys conducted in 2001, other than those
lands exempted under section 4(a)(3) of the Act (see discussion in
Exemptions section below). Because the species is long-lived and the
2001 surveys were conducted under optimal conditions, we believe the
survey results capture the fullest expression of A. jaegerianus and
provide an accurate representation of habitat occupied by the species.
Methods
As required by section 4(b) of the Act and 50 CFR 424.12, we used
the best scientific information available in determining which areas
within the geographic area occupied by the species at the time of
listing contain the features essential to the conservation of
Astragalus jaegerianus, and which areas outside the geographic area
occupied at the time of listing are essential for the conservation of
the species. We reviewed information used to prepare the 2004 proposed
critical habitat rule (69 FR 18018; April 6, 2004); the 5-year review
(Service 2008, pp. 1-21); published peer-reviewed articles; data from
our files that we used for listing the species; geologic maps
(California Geologic Survey 1953); recent biological surveys and
reports, particularly from the Army surveys of 2001 (Charis 2002, pp.
1-85); additional information provided by the Army, the Bureau, and
other interested parties; and discussions with botanical experts. We
also conducted site visits to all three known general geographic areas
that are occupied and are considered essential to the conservation of
the species.
The long-term probability of the survival and recovery of
Astragalus jaegerianus is dependent upon: The protection of existing
population sites; the maintenance of ecologic functions within these
sites, including connectivity within and between populations in close
geographic proximity to one another (to facilitate pollinator activity
and seed dispersal mechanisms); and keeping these areas free of major
ground-disturbing activities. The areas we are proposing to designate
as critical habitat provide all of the features essential for the
conservation of A. jaegerianus.
In our delineation of the proposed critical habitat units in 2004,
we initially selected three areas to provide for the conservation of
Astragalus jaegerianus that comprise the four specific population sites
where it is known to occur. As discussed under the ``Current
Distribution'' section of the April 1, 2010 proposed revised critical
habitat rule (75 FR 16404), at the time of listing, A. jaegerianus was
known to occur from Brinkman Wash and Montana Mine (the populations at
these two sites were subsequently determined to be contiguous and thus
are considered one population), Paradise Wash, and Coolgardie; due to
our understanding of the lifespan of the species, we also conclude that
the Goldstone site was occupied at the time of listing even though this
was not confirmed until 3 years subsequent to listing. All four
populations are important because A. jaegerianus exhibits life-history
attributes, including variable seed production, low germination rates,
and habitat specificity in the form of a dependence on a co-occurring
organism (host shrubs), that make it vulnerable to extinction (see
previous rules (69 FR 18018 and 70 FR 18220) and Gilpin and Soule 1986,
p. 33; Keith 1998, p. 1080). We believe the 2004 proposed critical
habitat designation (69 FR 18018) is of sufficient size to maintain
landscape-scale processes and to minimize the secondary impacts
resulting from human occupancy and human activities occurring in
adjacent areas. We mapped the units with a degree of precision
commensurate with the best available information and the size of the
unit.
Of principle importance in the process of delineating the proposed
critical habitat units are data in a GIS format provided by the Army,
depicting the results of Army field surveys for Astragalus jaegerianus
conducted in 2001 (Charis 2002, pp. 1-85). These data consisted of
three files depicting the locations of transects that were surveyed for
A. jaegerianus, the locations of A. jaegerianus individuals found
during the surveys, and minimum convex polygons (MCP) calculated to
represent the outer bounds of A. jaegerianus populations (Charis 2002,
pp. 1-85).
For mapping proposed critical habitat units, we proceeded through a
multi-step process. First, we started with the MCPs that had been
calculated by the Army (Charis 2002, pp. 1-85) based on the presence of
documented individuals. We then expanded these boundaries outward from
the edge of each of the four populations by a distance of 0.25 mi (0.4
km). We did this to include Astragalus jaegerianus individuals that are
part of these populations, but were not noted during surveys. The basis
for determining that these additional land areas are occupied is as
follows:
(1) This habitat has the appropriate elevational range, and
includes the granitic soils and plant communities that support host
plants required by A. jaegerianus;
(2) botanists involved in the Army surveys stated that ``the
estimate of [A. jaegerianus] distribution is a minimum'' (SAIC 2003,
pp. 1-2), and that additional individuals of A. jaegerianus most likely
occurred on the fringes of the MCPs (SAIC 2003, pp. 1-2);
(3) this 0.25-mi (0.4-km) distance is commensurate in scale with
the distance between transects where individuals were found and the
distance between individuals along one transect, and it is well within
the distance that can be traversed by pollinators and seed dispersers;
(4) mapping errors during the 2001 surveys indicated that the
location of individuals did not match up precisely with the location of
the transect boundaries (Charis 2002 pp. 36-37); and
(5) limited surveys were conducted in 2003, and despite the
unfavorable climatic conditions for A. jaegerianus, 13 additional
individuals were located outside the MCPs (SAIC 2003 pp. 1-2). Three of
the four areas where new plants were found were within the 0.25-mi
(0.4-km) distance around the MCPs.
We next removed areas on the margins of the resultant polygons
where we determined, by referring to digital raster graphic maps, the
topography is either too steep or the elevation too high to support
additional Astragalus jaegerianus individuals. This boundary
modification involved editing the eastern and southeastern edge of the
Coolgardie MCP and a cirque-shaped sliver from the central portion of
the southern boundary of the Brinkman-Montana MCP.
For the Goldstone and Brinkman-Montana populations, expansion of
the MCP boundaries by 0.25 mi (0.4 km) left a narrow corridor (about
0.125 mi- (0.2 km-) wide) between the revised polygons. We chose to
bridge the gap between the two polygons by incorporating the
intervening habitat that is within the geographic area occupied by the
species between the Goldstone and Brinkman-Montana polygons into a
single critical habitat unit, called the Goldstone-Brinkman unit. We
did this for several reasons: The intervening habitat between the two
MCPs contains the PCEs with the appropriate elevational range, granitic
soils, and plant communities (based on topographic maps, geologic maps,
and aerial photos) that Astragalus jaegerianus requires; there were no
[[Page 29119]]
obvious physical barriers between the two MCPs; the distance between
the two closest A. jaegerianus individuals across the gap of the two
MCPs was smaller than the distance between individuals within the MCPs;
and the distance between the two MCPs was small enough that it could be
easily traversed by a pollinator with a potential flight distance of
0.6 mi (1 km), or a seed disperser such as certain small mammals and
birds. Granitic soil and the plant community in the intervening area
between the two polygons also provide habitat for the pollinators that
visit A. jaegerianus flowers, as well as habitat for seed dispersers
(birds, small mammals, and large insects) that carry seed between the
coppices of suitable host shrubs, and the area functions as long-term
storage for the soil seedbank of A. jaegerianus.
Finally, the boundaries of the critical habitat units were modified
slightly in the process of creating the legal descriptions of the
critical habitat units. This process consisted of overlaying the
critical habitat units with grid lines spaced at 100-m intervals; the
grid lines following the Universal Transverse Mercator (UTM) coordinate
system ties to the North American Datum of 1927. Vertices defining the
critical habitat boundary polygon were then moved to the closest vertex
on the 100-m UTM grid lying inside of the critical habitat boundary.
Vertices not necessary to define the shape of the boundary polygon were
deleted. Changing the boundaries in this fashion serves two purposes:
(1) It creates a list of coordinates that is easier for the public to
use when looking at USGS 7.5-minute topographic maps, and (2) it
minimizes the number of coordinates necessary to define the shapes of
the critical habitat units.
When determining critical habitat boundaries within this final
rule, we made every effort to avoid including developed areas such as
lands covered by buildings, pavement, and other structures because such
lands lack PBFs for Astragalus jaegerianus. The scale of the maps we
prepared under the parameters for publication within the Code of
Federal Regulations may not reflect the exclusion of such developed
lands. In addition, old mining sites, where the soil profile and
topography have been altered such that no native vegetation can grow,
also do not and likey will not contain any of the PBFs for A.
jaegerianus in the future. Any such lands inadvertently left inside
critical habitat boundaries shown on the maps of this final rule have
been excluded by text in the rule and are not designated as critical
habitat. Therefore, a Federal action involving these lands will not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the PBFs in the adjacent critical habitat.
For the proposed revised critical habitat designation of April 1,
2010 (75 FR 16404), we made no changes to the boundaries of the
critical habitat units that were proposed in 2004 (69 FR 18018), other
than to exempt DOD lands on Fort Irwin that are included in the INRMP
(see Exemptions section below). Other changes between the previous 2004
proposed critical habitat designation and the 2010 proposed revised
critical habitat designation address changes and corrections in the
acreage attributed to various landowners; these changes are detailed in
the Summary of Changes From the Proposed Revised Rule and Previous
Critical Habitat Designation section above.
We are designating as critical habitat lands that we have
determined are occupied at the time of listing and contain sufficient
PBFs to support life-history processes essential for the conservation
of Astragalus jaegerianus and for which special management may be
required.
Two units are being designated based on sufficient elements of PBFs
being present to support Astragalus jaegerianus life processes. Both
units contain all of the identified elements of PBFs and support
multiple life processes; the Paradise Unit supports a portion of the
Paradise population, and the Coolgardie Unit supports all of the
Coolgardie population.
Final Revised Critical Habitat Designation
We are designating two units as critical habitat for Astragalus
jaegerianus. The critical habitat areas described below constitute our
best assessment at this time of areas that meet the definition of
critical habitat. Those two units are: (1) Paradise, and (2)
Coolgardie. Table 2 shows the land ownership and approximate area of
each critical habitat unit. Both units are within an area that is north
of the town of Barstow in the Mojave Desert in San Bernardino County,
California, were occupied at the time of listing, are currently
occupied, and contain the PCEs that sustain A. jaegerianus. We are
exempting the previously proposed Goldstone-Brinkman unit and a large
portion of the previously proposed Paradise unit (from the 2004
proposed critical habitat rule (69 FR 18018)) because NTC now has a
Service-approved INRMP that benefits the species. Please see discussion
in Exemptions section below for a description of the importance of
these exempted areas to A. jaegerianus.
Table 2--Designated Critical Habitat Units for Astragalus jaegerianus
[Areas estimates reflect all land within critical habitat unit boundaries.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bureau of Land
Unit name Army lands (Federal) Management (Federal) State lands Private lands Totals
--------------------------------------------------------------------------------------------------------------------------------------------------------
Paradise........................... 318 ac (129 ha)....... 409 ac (166 ha)....... 0 ac (0 ha).......... 237 ac (96 ha)....... 964 ac (390 ha).
Coolgardie......................... 964 ac (390 ha)....... 9,479 ac (3,836 ha)... 0 ac (0 ha).......... 2,662 ac (1,077 ha).. 13,105 ac (5,303 ha).
Totals......................... 1,282 ac (519 ha)..... 9,888 ac (4,002 ha)... 0 ac (0 ha).......... 2,899 ac (1,173 ha).. 14,069 ac (5,693 ha).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Approximate acres have been converted to hectares (1 ac = 0.4047 ha). Fractions of acres and hectares have been rounded to the nearest whole
number. Totals are sums of units. Area sizes may not sum due to rounding.
We present brief descriptions of both units, and reasons why they
meet the definition of critical habitat for Astragalus jaegerianus
below.
Paradise Unit
The Paradise unit consists of approximately 7,032 ac (2,846 ha). We
are designating critical habitat for Astragalus jaegerianus on 964 ac
(390 ha). Of this, 318 ac (129 ha) is Army-owned land adjacent to the
NTC (off Fort Irwin), 237 ac (96 ha) is privately owned land located
adjacent to the NTC, and approximately 409 ac (166 ha) is on adjacent
Federal lands managed by
[[Page 29120]]
the Bureau. The remaining 6,068 acres (2,456 ha) within this unit are
on Army lands at NTC subject to the INRMP and have been exempted under
section 4(a)(3) of the Act (see Exemptions section below).
As part of the plan amendments to the CDCA, the Bureau in 2005
designated an area of approximately 1,000 ac (405 ha) as part of the
West Paradise Valley Conservation Area. It generally overlaps with the
964 ac (390 ha) in this designation of critical habitat. The boundary
of the West Paradise Valley Conservation Area encompasses some Army
lands not on NTC and some private inholdings. This unit contains the
PBFs essential to the conservation of the species. The unit supports a
portion of the Paradise population which is one of the four populations
of Astragalus jaegerianus. In 2001, approximately 1,667 individuals
were observed in this population. The land within this unit supports
the granitic soils (PCE 1) and host shrubs (PCE 2) that are necessary
for the growth, reproduction, and establishment of A. jaegerianus
individuals. These granitic soils and host shrubs also provide habitat
for (1) the pollinators that visit A. jaegerianus flowers that result
in the production of seed; (2) seed dispersers (birds, small mammals,
and large insects) that carry seed between the coppices of suitable
host shrubs; and (3) sites for long-term storage for seedbank of A.
jaegerianus.
The Paradise unit may require special management considerations or
protection due to the threats to the species and its habitat posed by:
Invasions of nonnative plants such as Sahara mustard (Brassica
tournefortii) and other plant species that may take over habitat for
the species; habitat fragmentation that detrimentally affects plant-
host plant and plant-pollinator interactions (i.e., composition and
structure of the desert scrub community), leading to a decline in
species reproduction and increasing susceptibility to nonnative plant
invasion; and vehicles that cause direct and indirect impacts, such as
excessive dust, to the plant. Habitat for Astragalus jaegerianus in the
Paradise unit has been fragmented to a minor extent. We anticipate
that, in the future, habitat fragmentation may increase, composition
and structure of the plant community may be altered by the spread of
nonnative plants, and direct and indirect effects of dust may increase.
All of these threats would render the habitat less suitable for A.
jaegerianus, and special management may be needed to address them.
Coolgardie Unit
The Coolgardie unit consists of approximately 13,105 ac (5,303 ha),
primarily on Federal lands managed by the Bureau. The designated
Coolgardie critical habitat unit overlaps to a great extent with the
Bureau's Coolgardie Mesa Conservation Area (CMCA). Of this acreage,
approximately 9,479 ac (3,836 ha) are managed by the Bureau, and
approximately 964 ac (390 ha) were formerly in private ownership, but
have been acquired by the Army since 2005 for the purposes of
conservation of Astragalus jaegerianus. These lands are not contiguous
with the NTC and are not covered under the Army's INRMP. Parcels of
private land are scattered throughout this unit and total approximately
2,662 ac (1,077 ha). Some of these parcels may be acquired by the
Bureau and added to the CMCA. This unit supports one of only four
populations of A. jaegerianus. In 2001, surveyors observed 2,014 plants
in this population.
The land within this unit contains the PBFs essential to the
conservation of the species and supports the granitic soils (PCE 1) and
host shrubs (PCE 2) that are necessary for the growth, reproduction,
and establishment of Astragalus jaegerianus individuals. It should be
noted that the proposed critical habitat does not include the ``donut
hole'' in the center of the unit, where granitic soils are absent.
Within the proposed unit, the granitic soils and host shrubs: (1)
Provide habitat for the pollinators that visit A. jaegerianus flowers
and result in the production of seed; (2) provide habitat for seed
dispersers (birds, small mammals, and large insects) that carry seed
between the coppices of suitable host shrubs; and (3) provide for long-
term seedbank storage for A. jaegerianus.
The Coolgardie unit may require special management considerations
or protection due to the threats to the species and its habitat posed
by: Invasions of nonnative plants such as Sahara mustard (Brassica
tournefortii) and other plant species that may take over habitat for
the species; habitat fragmentation that detrimentally affects plant-
host plant and plant-pollinator interactions (composition and structure
of the desert scrub community), leading to a decline in species
reproduction and increasing susceptibility to nonnative plant invasion;
vehicles that cause direct and indirect impacts, such as excessive
dust, to the plant; and limited mining activities that can lead to
changes in habitat conditions (e.g., decreases in plant cover, and
increases in nonnative species). Habitat for Astragalus jaegerianus in
the Coolgardie unit has been fragmented to a moderate extent from
current and historical mining and from off-road vehicle use, and non-
native species have been introduced into the area. We anticipate that
in the future, habitat fragmentation may increase, and composition and
structure of the plant community may be altered by the continued spread
of nonnative plants. Due to increased recreational pressure, off-road
vehicle use has increased in the past 4 years. All of these threats
would render the habitat less suitable for A. jaegerianus, and special
management may be needed to address them.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out is
not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action that is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit Court of Appeals have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442F (5th
Cir. 2001)), and we do not rely on this regulatory definition when
analyzing whether an action is likely to destroy or adversely modify
critical habitat. Under the statutory provisions of the Act, we
determine destruction or adverse modification on the basis of whether,
with implementation of the proposed Federal action, the affected
critical habitat would continue to serve its intended conservation role
for the species.
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. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33
[[Page 29121]]
U.S.C. 1251 et seq.) or a permit from the Service under section 10 of
the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, Tribal, local, or private lands that are not federally funded
or authorized, do not require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) of the Act through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying 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 we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies may sometimes need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the PBFs to an
extent that appreciably reduces the conservation value of critical
habitat for Astragalus jaegerianus. As discussed above, the role of
critical habitat is to support life-history needs of the species and
provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Examples of activities that, when authorized, funded, or carried
out by a Federal agency, may affect critical habitat and therefore
should result in consultation for Astragalus jaegerianus include, but
are not limited to:
(1) Activities that would disturb the upper layers of soil,
including disturbance of the soil crust, soil compaction, soil
displacement, and soil destabilization. These activities include, but
are not limited to, military-related and construction activities of the
Army on its lands or lands under its jurisdiction not covered by an
INRMP; activities of the Bureau on its lands or lands under its
jurisdiction, including livestock grazing, fire management, and
recreational use; and habitat restoration projects on private lands
receiving funding from Federal agencies, such as from the Natural
Resources Conservation Service (NRCS), that would include mechanical
disturbance such as would occur with tracked vehicles, heavy-wheeled
vehicles, vehicles used in restoration projects (e.g., rippers or
discers), off-highway vehicles (including motorcycles), and mining
activities, such as ``club mining'' with drywashers and sluices. These
activities could alter soil conditions in ways that would affect the
germination of seed, the growth of individual plants, and successful
reproduction, and result in direct or cumulative adverse effects to
these individuals and their life cycles.
(2) Activities that appreciably degrade or destroy the native
desert scrub communities that support host shrubs, including but not
limited to military-related and construction activities of the Army on
its lands or lands under its jurisdiction not covered by an INRMP;
activities of the Bureau on its lands or lands under its jurisdiction,
including livestock grazing, fire management, and recreational use; and
habitat restoration projects on private lands receiving funding from
Federal agencies, such as from the NRCS that would include mechanical
disturbance such as would occur with tracked vehicles, heavy-wheeled
vehicles, vehicles used in restoration projects (e.g., rippers or
discers), off-highway vehicles (including motorcycles), and mining
activities such as ``club mining'' with drywashers and sluices. These
activities could alter the plant communities, particularly the host
shrubs and habitat for pollinators, in ways that would affect the
germination of seed, the growth of individual plants, and successful
reproduction, and result in direct or cumulative adverse effects to
these individuals and their life cycles.
(3) Activities that would appreciably degrade the normal metabolic
processes in individual plants through aerial application of chemical
compounds, such as the application or runoff of chemical or biological
agents into the air, onto the soil, or onto native vegetation,
including substances such as pesticides, herbicides, fertilizers,
tackifiers, obscurants, and chemical fire retardants used by the
Bureau, the Army, NRCS, and the Animal and Plant Health Inspection
Service, in the control of nonnative plant and animal species,
firefighting, military training activities, and restoration activities.
These activities could interfere with normal plant metabolic processes
such as gas exchange in leaf tissues, and water and mineral uptake in
root tissues. In addition, aerial spraying can affect reproduction
through a reduction in successful pollen transfer; pollinator
availability may also be affected, which, could in turn affect seed
set.
As discussed previously in the revised proposed rule (75 FR 16404),
we completed consultation with both the Army and the Bureau on
activities that were being proposed on their lands. We consulted with
the Army on its proposed addition of training lands on the NTC (Charis
2003; Service 2005); see
[[Page 29122]]
discussion below under ``Approved INRMPs''. We also consulted with the
Bureau as the lead Federal agency on the plan amendments to the CDCA
plan (Bureau 2005; Service 2005); for a complete discussion of actions
and conservation measures undertaken through this consultation, please
refer to the revised proposed critical habitat designation (75 FR
16404).
Where Federally listed wildlife species occur on private lands
proposed for development, any habitat conservation plans submitted by
the applicant to secure an incidental take permit, under section
10(a)(1)(B) of the Act, would be subject to the section 7 consultation
process. The Superior-Cronese Critical Habitat Unit for the desert
tortoise (Gopherus agassizii), a species that is listed as threatened
under the Act, overlaps with the distribution of Astragalus jaegerianus
in a portion of the Paradise population of the species. We anticipate
that most of the activities occurring on private lands within the range
of A. jaegerianus will eventually be included under the umbrella of the
HCP to be prepared by the County of San Bernardino. However, there may
be activities proposed for private lands that either need to be
completed prior to the approval of the HCP, or there may be a proposed
activity that is not covered by the HCP and, therefore, may require a
separate habitat conservation plan.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Amendment of 1997 (Sikes Act) (16 U.S.C.
670a) required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an INRMP by November 17, 2001. An INRMP integrates
implementation of the military mission of the installation with
stewardship of the natural resources found on the base. Each INRMP
includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
We consult with the military on the development and implementation
of INRMPs for installations with listed species. We analyzed INRMPs
developed by military installations located within the range of the
critical habitat designation for Astragalus jaegerianus to determine if
they are exempt under section 4(a)(3) of the Act. The following areas
are DOD lands with completed, Service-approved INRMPs within the
revised critical habitat designation.
Approved INRMPs
Army lands within the boundaries of the NTC at Fort Irwin are
subject to an INRMP for 2006-2011 (NTC 2005), which includes management
guidelines in place that provide a benefit for Astragalus jaegerianus.
As part of the Army's consultation on the proposed expansion of
training lands at NTC (Service 2005), the Army established the 4,300-ac
(1,740-ha) East Paradise Conservation Area on NTC. This area contains
approximately 80 percent of the East Paradise population of A.
jaegerianus. The Army established the 3,700-ac (1497-ha) Brinkman Wash
Restricted Access Area (no-dig zone) on NTC. This area contains 1,872
ac (758 ha) of A. jaegerianus habitat and approximately 51 percent of
the Montana Mine population of A. jaegerianus. The Army also maintains
the 2,471-ac (1,000-ha) Goldstone Conservation Area. The Army's INRMP
management guidelines provide a benefit to A. jaegerianus through the
following measures: the Army will prohibit off-road activity; they will
reduce threats to A. jaegerianus caused by dust through the application
of soil binders. They will also collect and store site-specific seed
from host plants to restore closed routes and other disturbed areas
within A. jaegerianus habitat. Contingent on funds, the Army will
perform intensive nonnative species control and eradication efforts at
conservation areas, if such species are found there. We will continue
to monitor the status of the INRMP to ensure that it adequately
addresses management guidelines for A. jaegerianus.
In the April 6, 2004, proposed critical habitat designation (69 FR
18018), the Army had not yet completed its INRMP and, therefore, was
not exempted under section 4(a)(3)(B) of the Act. However, the Army was
excluded under section 4(b)(2) of the Act for reasons of national
security and because existing management plans provided a benefit to
Astragalus jaegerianus. The Army's INRMP was approved in 2006, and
includes management actions that the Secretary has determined benefit
A. jaegerianus. With our current exemption of all areas within the
Army's NTC (see ``Relationships to Sections 4(a)(3) of the Act''
section), the entire 10,394-ac (4,206-ha) Goldstone-Brinkman unit has
been exempted from revised critical habitat designation. Similarly,
almost all (6,068 ac (2,456 ha) of 7,032 ac (2,846 ha)) of the Paradise
Unit on NTC has been exempted from designation as revised critical
habitat. Army lands outside the NTC are not subject to the INRMP and,
therefore, not exempted. The 2006 INRMP is due to be revised in 2011;
the Army is currently reviewing the draft INRMP for 2011-2016. It
contains all the same measures for A. jaegerianus as the existing INRMP
(Everly 2011 in litt.).
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that the identified lands
are subject to the NTC at Fort Irwin INRMP, and that conservation
efforts identified in the INRMP will provide a benefit to Astragalus
jaegerianus occurring in habitats within, or adjacent to, the NTC at
Fort Irwin INRMP. Therefore, lands within this installation are exempt
from critical habitat designation under section 4(a)(3) of the Act.
Approximately 16,462 ac (6,662 ha) of A. jaegerianus habitat are not
included in this revised critical habitat designation because of this
exemption.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat 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
[[Page 29123]]
any particular area as critical habitat. The Secretary may exclude an
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. In making that
determination, the statute on its face, as well as the legislative
history, are clear that the Secretary has broad discretion regarding
which factor(s) to use and how much weight to give to any factor.
Under section 4(b)(2) of the Act, the Secretary may exclude an area
from designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we must
identify the benefits of including the area in the designation,
identify the benefits of excluding the area from the designation, and
determine whether the benefits of exclusion outweigh the benefits of
inclusion. If the analysis indicates that the benefits of exclusion
outweigh the benefits of inclusion, the Secretary may exercise his
discretion to exclude the area only if such exclusion would not result
in the extinction of the species.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we prepared a draft economic analysis of the
proposed critical habitat designation and related factors (Industrial
Economics Incorporated (IEC) 2010, pp. 1-44). The draft analysis, dated
September 30, 2010, was made available for public review on November 3,
2010, and the comment period for the draft analysis and proposed
revised designation of critical habitat was opened for an additional 30
days, extending through December 3, 2010 (75 FR 67676). Following the
close of the comment period, a final analysis (dated March 1, 2011) of
the potential economic effects of the designation was developed taking
into consideration the public comments and any new information (IEC
2011).
The intent of the final economic analysis (FEA) is to quantify the
economic impacts of all potential conservation efforts for Astragalus
jaegerianus; some of these costs will likely be incurred regardless of
whether we designate critical habitat (baseline). The economic impact
of the final critical habitat designation is analyzed by comparing
scenarios both ``with critical habitat'' and ``without critical
habitat.'' The ``without critical habitat'' scenario represents the
baseline for the analysis, considering protections already in place for
the species (e.g., under the Federal listing and other Federal, State,
and local regulations). The baseline, therefore, represents the costs
incurred regardless of whether critical habitat is designated. The
``with critical habitat'' scenario describes the incremental impacts
associated specifically with the designation of critical habitat for
the species. The incremental conservation efforts and associated
impacts are those not expected to occur absent the designation of
critical habitat for the species. In other words, the incremental costs
are those attributable solely to the designation of critical habitat
above and beyond the baseline costs; these are the costs we consider in
the final designation of critical habitat. Conservation measures
implemented under the baseline (without critical habitat) scenario are
described qualitatively within the FEA, but economic impacts associated
with these measures are not quantified. Economic impacts are only
quantified for conservation measures implemented specifically due to
the designation of critical habitat (i.e., incremental impacts).
The FEA also addresses how potential economic impacts are likely to
be distributed, including an assessment of any local or regional
impacts of habitat conservation and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. The FEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decision-makers can use this information to assess whether
the effects of the designation might unduly burden a particular group
or economic sector. Finally, the FEA looks qualitatively at costs that
have been incurred since 1998 (year of the species' listing) (63 FR
53596), and considers those costs that may occur in the 20 years
following the designation of critical habitat, which was determined to
be the appropriate period for analysis because limited planning
information was available for most activities to forecast activity
levels for projects beyond a 20-year timeframe. The FEA quantifies
incremental economic impacts of Astragalus jaegerianus conservation
efforts associated with the following categories of activity:
recreational OHV use, recreational surface mining, and wind energy
development. It also assessed possible indirect impacts to economic
activities as the result of possible applications of the CEQA, and
regulatory uncertainty or delay associated with consultations with the
Service.
The FEA estimates that no economic impacts from additional
conservation measures are likely to result from the designation of
critical habitat. The main reason for this conclusion is that
approximately 79 percent of the designated critical habitat is Federal
land that is either being managed for Astragalus jaegerianus
conservation by the Bureau under the guidance of the California Desert
Conservation Area Plan, as modified by the West Mojave Plan, or is
being held by the DOD. Because the DOD acquired these lands as
mitigation for the expansion of Fort Irwin, it will not permit any
ground-disturbing activities on them. Ultimately, the DOD will transfer
the lands to the Bureau, and the Bureau will manage them as part of the
Coolgardie Mesa and West Paradise Areas of Critical Environmental
Concern. The Service, DOD, and the Bureau do anticipate section 7
consultation on the land transfer, but expect that the consultation
will be informal and not require a formal biological opinion under
section 7 of the Act. An additional reason that no economic impacts are
likely to result from the designation of critical habitat is that the
private lands (remaining 21 percent of designation interspersed in a
checkerboard fashion among the Bureau ACECs lands) occur in a remote
region where access, development, and construction are limited. Also
land-use activities specifically within ACECs are limited. These
private lands are being targeted through the WMP for acquisition by
Federal agencies from willing sellers to eventually become part of one
of the two ACECs. No section 7 consultations have occurred regarding
activities on private lands within the area since the listing of the
desert tortoise in 1990. The federally threatened desert tortoise
occurs throughout the area that we have proposed as critical habitat;
critical habitat for the desert tortoise also completely overlaps the
areas designated as revised critical habitat for A. jaegerianus.
Consequently, based on discussions with land managers and the lack of
consultations on private lands in this area since the listing of the
desert
[[Page 29124]]
tortoise, we do not anticipate any land use changes that will result in
future consultations.
Our economic analysis identified that there could be
``insignificant additional administrative costs to conduct the adverse
modification analysis for those projects with a Federal nexus''; no
attempt was made to quantify the administrative costs associated with
this designation. As a result, there are no disproportionate costs that
are likely to result from the designation. Consequently, the Secretary
has determined not to exert his discretion to exclude any areas from
this designation of critical habitat for Astragalus jaegerianus based
on economic impacts.
A copy of the FEA with supporting documents may be obtained by
contacting the Ventura Fish and Wildlife Office (see ADDRESSES) or by
downloading from the Internet at http://www.regulations.gov.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the DOD where a national security impact
might exist. In preparing this final rule, we have determined that
there are lands within the designation of critical habitat for
Astragalus jaegerianus that are owned by the DOD. These lands were
acquired as mitigation for the expansion of Fort Irwin, and the DOD
will not permit any ground-disturbing activities on them. Ultimately,
the DOD will transfer the lands to the Bureau, and the Bureau will
manage them as part of the Coolgardie Mesa and West Paradise ACEC. The
Service, DOD, and the Bureau anticipate consultation on the land
transfer, but expect that the consultation would be informal and not
require a formal biological opinion under section 7 of the Act. No
military operations or training for national security occurs on these
lands. Consequently, the Secretary has determined not to exert his
discretion to exclude any areas from this final designation based on
impacts on national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether the
landowners have developed any HCPs or other management plans for the
area, or whether there are conservation partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at any Tribal issues, and consider the government-to-
government relationship of the United States with Tribal entities. We
also consider any social impacts that might occur because of the
designation.
In preparing this final rule, we have determined that there are
currently no HCPs or other management plans for Astragalus jaegerianus,
and the final designation does not include any Tribal lands or trust
resources. We anticipate no impact on Tribal lands, partnerships, or
HCPs from this critical habitat designation. Accordingly, the Secretary
has determined not to exert his discretion to exclude any areas from
this final designation based on other relevant impacts.
Table 3 below provides approximate areas (ac, ha) of lands that
meet the definition of critical habitat but are exempt from designation
under section 4(a)(3) of the Act. Table 3 also provides our reasons for
the exemption.
Table 3--Exemptions From the Critical Habitat Designation for Astragalus jaegerianus by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Areas meeting the
Basis for definition of
Unit Specific area exclusion/ critical habitat Areas exempted in
exemption in acres acres (hectares)
(hectares)
----------------------------------------------------------------------------------------------------------------
Goldstone-Brinkman............. National Training Exemption under 10,394 ac (4,206 10,394 ac (4,206
Center, Fort Irwin section 4(a)(3) ha). ha) exempted due
Integrated Natural of the Act. to INRMP* on
Resources NTC** lands.
Management Plan.
Paradise....................... National Training Exemption under 6,068 ac (2,456 6,068 ac (2,456
Center, Fort Irwin section 4(a)(3) ha). ha) exempted due
Integrated Natural of the Act. to INRMP on NTC
Resources lands.
Management Plan.
Total...................... ................... .................. 16,462 ac (2,456 16,462 ac (2,456
ha). ha).
----------------------------------------------------------------------------------------------------------------
*INRMP = Integrated Natural Resources Management Plan.
**NTC = National Training Center.
Required Determinations
Regulatory Planning and Review--Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
rule is not significant and has not reviewed this rule under Executive
Order 12866 (Regulatory Planning and Review). OMB bases its
determination upon the following criteria:
(1) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(2) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(3) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(4) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must 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 (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. The SBREFA amended
the RFA to require Federal agencies to provide a certification
statement of the factual basis for certifying that a rule will not
[[Page 29125]]
have a significant economic impact on a substantial number of small
entities. In this final rule, we are certifying that the critical
habitat designation for Astragalus jaegerianus will not have a
significant economic impact on a substantial number of small entities.
The following discussion explains our rationale.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations, small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (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 on these small entities are significant, we consider the types
of activities that might trigger regulatory impacts under this rule, as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities (e.g.,
recreational OHV use and recreational mining). We apply the
``substantial number'' test individually to each industry to determine
if certification is appropriate. However, the SBREFA does not
explicitly define ``substantial number'' or ``significant economic
impact.'' Consequently, to assess whether a ``substantial number'' of
small entities is affected by this designation, this analysis considers
the relative number of small entities likely to be impacted in an area.
In some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities authorized,
funded, or carried out by Federal agencies. Some kinds of activities
are unlikely to have any Federal involvement and so will not be
affected by critical habitat designation. In areas where the species is
present, Federal agencies already are required to consult with us under
section 7 of the Act on activities they authorize, fund, or carry out
that may affect Astragalus jaegerianus. Federal agencies also must
consult with us if their activities may affect critical habitat.
Designation of critical habitat, therefore, could result in an
additional economic impact on small entities due to the requirement to
reinitiate consultation for ongoing Federal activities (see Application
of the ``Adverse Modification Standard'' section).
In our final economic analysis of the critical habitat designation,
we evaluated the potential economic effects on small business entities
resulting from conservation actions related to the listing of
Astragalus jaegerianus and the designation of critical habitat. The
analysis is based on the estimated impacts associated with the
rulemaking as described in Section 3.5 of the analysis and evaluates
the potential for economic impacts related to: (1) Recreational OHV
use; (2) recreational surface mining; and (3) wind energy development.
In this case, the analysis discusses that, because there are no
incremental impacts resulting from the critical habitat designation,
there are no impacts on small entities.
In summary, we considered whether this designation would result in
a significant economic effect on a substantial number of small
entities. Based on the above reasoning and currently available
information, we concluded that this rule would not result in a
significant economic impact on a substantial number of small entities.
Therefore, we are certifying that the designation of critical habitat
for A. jaegerianus will not have a significant economic impact on a
substantial number of small entities, and a regulatory flexibility
analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration.
This final revised critical habitat designation for Astragalus
jaegerianus, as described above, is not expected to significantly
affect energy supplies, distribution, or use. There are no transmission
power lines identified on the designated critical habitat, or energy
extraction activities (Bureau of Land Management 1980). In addition,
according to the FEA, no future wind energy developments will be
permitted within the Paradise Unit due to the DOD concerns regarding
use of the air space (IEC 2011). Further, reserve-level management of
the ACECs for Astragalus jaegerianus conservation in both proposed
units indicate it is unlikely that wind energy developments will be
permitted by the Bureau within the critical habitat designation (IEC
2011, Section 3.2.4).
Thus, based on information in the economic analysis, energy-related
impacts associated with Astragalus jaegerianus conservation activities
within critical habitat are not expected. As such, the designation of
critical habitat 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), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments,'' with
two exceptions. First, it excludes ``a condition of Federal
assistance.'' Second, 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
[[Page 29126]]
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 that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments and a small Government Agency Plan is not
required. State lands were not included in this revised critical
habitat designation. Given the distribution of this species, small
governments will not be uniquely affected by this rule. Small
governments will not be affected at all unless they propose an action
requiring Federal funds, permits, or other authorization. Any such
activity will require that the involved Federal agency ensure that the
action is not likely to adversely modify or destroy designated critical
habitat. However, as discussed above, Federal agencies are currently
required to ensure that any such activity is not likely to jeopardize
the species, and no further regulatory impacts from this revised
designation of critical habitat are anticipated. Consequently, we do
not believe that the critical habitat designation would significantly
or uniquely affect small government entities. As such, a Small
Government Agency Plan is not required.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
critical habitat for Astragalus jaegerianus in a takings implications
assessment. 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. The takings implications assessment
concludes that this designation of critical habitat for A. jaegerianus
does not pose significant takings implications for lands within or
affected by the designation.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), the rule
does not have significant Federalism effects. A Federalism assessment
is not required. In keeping with Department of the Interior policy, we
requested information from, and coordinated development of, this
critical habitat designation with appropriate State resource agencies
in California. We solicited, but did not receive, comments from the
CDFG and have noted this in the Summary of Comments and Recommendations
section of the rule. As discussed above, the designation of critical
habitat in areas currently occupied by Astragalus jaegerianus would
have little incremental impact on State and local governments and their
activities. This is because the proposed revised critical habitat
occurs to a great extent on Federal lands managed by the DOD and the
Bureau, and less than 2 percent occurs on private lands that would
involve State and local agencies. The designation may have some benefit
to these governments, in that the areas that contain the PBFs essential
to the conservation of these species are more clearly defined, and the
elements of the features of the habitat necessary to the conservation
of the species are specifically identified. This information does not
alter where and what Federally sponsored activities may occur. However,
it may assist these local governments in long-range planning (rather
than having them wait for case-by-case section 7 consultation to
occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the regulation meets the applicable standards set forth in sections
3(a) and 3(b)(2) of the Order. We are designating critical habitat in
accordance with the provisions of the Act. This final rule uses
standard property descriptions and identifies the elements of PBFs
essential to the conservation of Astragalus jaegerianus within the
designated areas to assist the public in understanding the habitat
needs of the species.
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 of 1995 (44
U.S.C. 3501 et seq.). 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 (42 U.S.C. 4321, et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the 9th Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
[[Page 29127]]
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 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We determined that there are no Tribal
lands occupied by Astragalus jaegerianus at the time of listing that
contain the features essential for conservation of the species, and no
Tribal lands unoccupied by A. jaegerianus that are essential for the
conservation of the species. Therefore, the designation of critical
habitat for A. jaegerianus will not affect Tribes or Tribal lands.
Data Quality Act
In developing this rule we did not conduct or use a study,
experiment, or survey requiring peer review under the Data Quality Act
(Pub. L. 106-554).
References Cited
A complete list of all references cited herein is available on the
Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2009-
0078 and upon request from the Field Supervisor, Ventura Fish and
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Author
The primary authors of this rulemaking are the staff of the Ventura
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
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. 17.96, amend paragraph (a) by revising the critical habitat
designation for ``Astragalus jaegerianus (Lane Mountain milk-vetch),''
under the family Fabaceae, to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Fabaceae: Astragalus jaegerianus (Lane Mountain milk-vetch)
(1) Critical habitat units are depicted for San Bernardino County,
California, on the map below.
(2) Critical habitat consists of the mixed desert scrub community
within the range of Astragalus jaegerianus that is characterized by the
following primary constituent elements:
(i) Shallow soils at elevations between 3,100 and 4,200 ft (945 to
1,280 m) derived primarily from Jurassic or Cretaceous granitic
bedrock, and less frequently on soils derived from diorite or gabbroid
bedrock, or on granitic soils overlain by scattered rhyolitic cobble,
gravel, and sand.
(ii) Host shrubs at elevations between 3,100 and 4,200 ft (945 to
1,280 m). The primary host shrubs include, but are not limited to:
Thamnosma montana (turpentine bush), Ambrosia dumosa (burro bush),
Eriogonum fasciculatum ssp. Polifolium (California buckwheat),
Ericameria cooperi var. cooperi (golden bush), Ephedra nevadensis
(Mormon tea), and Salazaria mexicana (paperbag bush) that are usually
found in mixed desert shrub communities.
(3) Critical habitat does not include manmade structures
(including, but not limited to, buildings, aqueducts, runways, roads,
and other paved areas) and the land on which they are located existing
within the legal boundaries on the effective date of this rule and not
containing one or more of the PCEs.
(4) Critical habitat map units. These critical habitat units were
mapped using Universal Transverse Mercator (UTM), Zone 10, North
American Datum (NAD) 1983 (UTM NAD 83) coordinates. These coordinates
establish the vertices and endpoints of the boundaries of the units.
(5) Coolgardie Unit: San Bernardino County, California. From USGS
1:24,000 quadrangle maps Lane Mountain and Mud Hills, San Bernardino
County, California.
(i) Land bounded by the following UTM Zone 10, NAD83 coordinates
(E, N): 495500, 3884300; 495700, 3884600; 496400, 3885100; 497100,
3885400; 497300, 3885500; 497700, 3885700; 498000, 3885800; 498200,
3885800; 498900, 3885900; 500400, 3886100; 501100, 3886200; 501800,
3886300; 502500, 3886400; 503300, 3886500; 503600, 3886500; 503900,
3886400; 504100, 3886300; 504600, 3886100; 504900, 3886000; 505100,
3885900; 505200, 3885700; 505300, 3885500; 505400, 3885400; 505300,
3885200; 505100, 3884600; 505100, 3881000; 505000, 3880900; 504700,
3880200; 504600, 3879900; 503900, 3879600; 503800, 3879500; 503600,
3879500; 503000, 3879400; 502400, 3879300; 502000, 3879200; 501900,
3878900; 501900, 3878800; 501200, 3878700; 500400, 3878600; 499700,
3878500; 499600, 3878400; 499400, 3878500; 499100, 3878600; 498700,
3878700; 498400, 3878800; 498300, 3879000; 498200, 3879400; 497800,
3880900; 497700, 3881200; 496400, 3881700; 496200, 3881800; 496100,
3881800; 496000, 3882000; 495600, 3883700; 495500, 3884100; returning
to 495500, 3884300; excluding land bounded by: 498800, 3883900; 499200,
3883200; 499300, 3882900; 499500, 3882100; 499800, 3881900; 501200,
3881100; 501700, 3881100; 501900, 3881200; 501900, 3881300; 501800,
3882000; 501700, 3882600; 501600, 3883100; 501200, 3883600; 500900,
3883900; 500200, 3884000; 499000, 3884000; returning to 498800,
3883900.
(ii) Note: Map of Coolgardie Unit is provided at paragraph (6)(ii)
of this entry.
(6) Paradise Unit: San Bernardino County, California. From USGS
1:24,000 quadrangle map Williams Well, San Bernardino County,
California.
(i) Land bounded by the following UTM Zone 10, NAD83 coordinates
(E, N): 509089 3890369; 507600, 3889500; 507400, 3889400; 507300,
3889500; 506900, 3889600; 506800, 3889700; 506400, 3890300; 506300,
3890400; 506000, 3891600; 505900, 3892000; 505800, 3892300; 505500,
3892600; 504900, 3893000; 504600, 3893200; 504500, 3893300; 504000,
3894100; 503800, 3894400; 503700, 3894800; 503800, 3895100; 503857,
3895157; 503873, 3895157; 503874, 3894353; 504678, 3894353; 504679,
3893549; 505510, 3893550; 505512, 3892977; 505912, 3892974; 505909,
3892573; 506314, 3892571; 506314, 3891767; 506804, 3891767; 506804,
3891244; 506820, 3890426; 508454, 3890415; returning to 509089,
3890369.
[[Page 29128]]
(ii) Note: Map of Coolgardie and Paradise Units follows:
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[[Page 29129]]
* * * * *
Dated: April 28, 2011.
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-12330 Filed 5-18-11; 8:45 am]
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