[Federal Register Volume 78, Number 30 (Wednesday, February 13, 2013)]
[Rules and Regulations]
[Pages 10449-10497]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03109]
[[Page 10449]]
Vol. 78
Wednesday,
No. 30
February 13, 2013
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; Designation of Critical
Habitat for Astragalus lentiginosus var. coachellae (Coachella Valley
Milk-Vetch); Final Rule
Federal Register / Vol. 78 , No. 30 / Wednesday, February 13, 2013 /
Rules and Regulations
[[Page 10450]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2011-0064; 4500030114]
RIN 1018-AX40
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Astragalus lentiginosus var. coachellae (Coachella
Valley Milk-Vetch)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for Astragalus lentiginosus var. coachellae (Coachella
Valley milk-vetch) under the Endangered Species Act of 1973, as
amended. In total, approximately 9,603 acres (3,886 hectares) in the
Coachella Valley area of Riverside County, California, fall within the
boundaries of this critical habitat designation.
DATES: This rule becomes effective on March 15, 2013.
ADDRESSES: This final rule and the associated final economic analysis
are available on the Internet at http://www.regulations.gov. Comments
and materials received, as well as supporting documentation used in
preparing this final rule, are available for public inspection, by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley
Road, Suite 101, Carlsbad, CA 92011; telephone 760-431-9440; facsimile
760-431-5901.
The coordinates or plot points or both from which the maps included
in the regulation are generated are included in the administrative
record for this critical habitat designation and are available at
http://www.fws.gov/carlsbad/GIS/CFWOGIS.html, http://www.regulations.gov at Docket No. FWS-R8-ES-2011-0064, and at the
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT). All additional tools or supporting information developed for
this critical habitat designation are also available at the Fish and
Wildlife Service Web site and Field Office set out above, and may also
be included in the preamble and/or at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S.
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010
Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone 760-431-
9440; facsimile 760-431-5901. If you use a telecommunications device
for the deaf (TDD), call the Federal Information Relay Service (FIRS)
at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. This is a final rule to designate
critical habitat for Astragalus lentiginosus var. coachellae. Under the
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.)
(Act), any species that is determined to be an endangered or threatened
species requires critical habitat to be designated, to the maximum
extent prudent and determinable. Designations and revisions of critical
habitat can only be completed by issuing a rule.
We listed Astragalus lentiginosus var. coachellae as an endangered
species on October 6, 1998 (63 FR 53596). On August 25, 2011, we
published in the Federal Register a proposed critical habitat
designation for A. l. var. coachellae (76 FR 53224). Section 4(b)(2) of
the Act states that the Secretary shall designate 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 any particular area as critical
habitat.
The critical habitat areas we are designating in this rule
constitute our current best assessment of the areas that meet the
definition of critical habitat for Astragalus lentiginosus var.
coachellae. Here we are designating approximately 9,603 ac (3,886 ha),
in 4 units as critical habitat for the taxon.
We have prepared an economic analysis of the designation of
critical habitat. In order to consider economic impacts, we have
prepared an analysis of the economic impacts of the critical habitat
designation. We announced the availability of the draft economic
analysis (DEA) in the Federal Register on May 16, 2012 (77 FR 28846),
allowing the public to provide comments on our analysis. We considered
all comments and information received from the public during the
comment period, incorporated the comments as appropriate, and completed
the final economic analysis (FEA) concurrently with this final
determination.
Peer review and public comment. We sought comments from independent
specialists to ensure that our designation is based on scientifically
sound data and analyses. We invited three knowledgeable individuals
with scientific expertise to review our technical assumptions,
analysis, and whether or not we had used the best available
information. We received responses from two peer reviewers, who
generally concurred with our methods and conclusions and provided
additional information, clarifications, and suggestions to improve this
final rule. Information we received from peer review is incorporated in
this final revised designation. We also considered all comments and
information received from the public during the comment period.
Previous Federal Actions
The following section summarizes the previous Federal actions since
Astragalus lentiginosus var. coachellae was listed as an endangered
species on October 6, 1998 (63 FR 53596); please refer to the final
listing rule for a discussion of Federal actions that occurred prior to
the taxon's listing.
At the time of listing, we determined that designation of critical
habitat was ``not prudent'' (63 FR 53596). On November 15, 2001, the
Center for Biological Diversity and the California Native Plant Society
filed a lawsuit against the Secretary of the Interior and the Service
challenging our not prudent determinations for eight plant taxa,
including Astragalus lentiginosus var. coachellae (Center for
Biological Diversity, et al. v. Norton, case number 01-cv-2101 (S.D.
Cal.)). A second lawsuit asserting the same challenge was filed on
November 21, 2001, by the Building Industry Legal Defense Foundation
(Building Industry Legal Defense Foundation v. Norton, case number 01-
cv-2145 (S.D. Cal.)). On May 9, 2002, all parties agreed to consolidate
the suits and remand the critical habitat determinations for the eight
plant taxa at issue to the Service for reconsideration. On July 1,
2002, the Court directed us to reconsider our not prudent determination
and if we determined that designation was prudent, submit to the
Federal Register for publication a proposed critical habitat
designation for A. l. var. coachellae by November 30, 2004, and to
submit to the Federal Register for publication a final rule designating
critical habitat by November 30, 2005. The proposed rule to designate
critical habitat for A. l. var. coachellae published in the Federal
Register on December 14, 2004 (69 FR 74468). The final rule designating
critical habitat for A. l. var. coachellae published in the Federal
Register on December 14, 2005 (70 FR 74112).
The Center for Biological Diversity filed a lawsuit on January 14,
2009,
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claiming the Service failed to designate adequate critical habitat for
Astragalus lentiginosus var. coachellae (Center for Biological
Diversity v. Kempthorne, case number ED-cv-09-0091 VAP (AGRx) (C.D.
Cal.)). In a settlement agreement dated November 14, 2009, we agreed to
reconsider the critical habitat designation for A. l. var. coachellae.
The settlement required the Service to submit a proposed revised
critical habitat designation for A. l. var. coachellae to the Federal
Register by August 18, 2011, and submit a final revised critical
habitat designation to the Federal Register by February 14, 2013. The
proposed revised critical habitat designation was delivered to the
Federal Register on August 17, 2011, and published on August 25, 2011
(76 FR 53224). A notice announcing the availability of the draft
economic analysis for the proposed revised critical habitat designation
was published in the Federal Register on May 16, 2012 (77 FR 28846).
This final rule complies with the terms of the settlement agreement.
Background
It is our intent to discuss in this final rule only those topics
directly relevant to the revision of critical habitat for Astragalus
lentiginosus var. coachellae under the Act (16 U.S.C. 1531 et seq.).
For more information on the taxonomy, biology, and ecology of A. l.
var. coachellae, please refer to: the final listing rule published in
the Federal Register on October 6, 1998 (63 FR 53596); the first rule
proposing designation of critical habitat published in the Federal
Register on December 14, 2004 (69 FR 74468); the subsequent critical
habitat final rule published in the Federal Register on December 14,
2005 (70 FR 74112); and the recent proposed rule to designate critical
habitat published in the Federal Register on August 25, 2011 (76 FR
53224). Additionally, more information on the taxon can be found in the
A. l. var. coachellae 5-year review (Service 2009).
Except when referencing statutory language, we refer to Astragalus
lentiginosus var. coachellae as a taxon in this document because it is
not a species itself, but rather a variety of the species Astragalus
lentiginosus. Information on the associated draft economic analysis for
the proposed rule to designate revised critical habitat was published
in the Federal Register on May 16, 2012 (77 FR 28846).
To ensure clarity of habitat discussions in the remainder of this
rule, in the following paragraphs we have included a description of the
sand transport system that sustains the sand formations that form the
basis of A. l. var. coachellae habitat in the Coachella Valley.
Sand Transport System
Most of the sand in the northern Coachella Valley is derived from
drainages within the Indio Hills, the San Bernardino Mountains, the
Little San Bernardino Mountains, and the San Jacinto Mountains. This
sand is moved into and through the valley by the sand transport system.
The sand transport system consists of two main parts: (1) The fluvial
(water) portion (headwaters, tributaries, and the stream channels
within the various drainages surrounding Coachella Valley) and (2) the
aeolian (wind) portion (predominantly westerly and northwesterly winds
moving through the valley) (Griffiths et al. 2002, pp. 5-7). The
fluvial and aeolian portions of the systems are capable of moving sand
until the velocity of the water or wind decreases to a point that sand
is deposited.
Fluvial Portion of the Sand Transport System
The water that forms the basis of the fluvial portion of the sand
transport system in the Coachella Valley enters the system as
precipitation during storm events (Griffiths et al. 2002, p. 5). These
storm events cause flash flooding, which facilitates the erosion that
generates sediment, and moves that sediment downstream in ephemeral
streams and washes and eventually into the aeolian transport corridor.
Most flooding events only transport small amounts of sediment to the
valley floor; flooding events large enough to move large amounts of
sediment are very infrequent (for example, the last large flooding
event on the Whitewater River occurred in 1938) (Griffiths et al. 2002,
p. 5).
Fluvial sand transport areas are stream channels that convey
sediment downstream to fluvial sand depositional areas. In the portions
of the Coachella Valley containing Units 1, 2, and 3, very little
erosion of parent rock or sediment deposits takes place in fluvial
transport areas compared to areas upstream where the sediment is
generated. In Unit 4, sediment is generated in the same area where
fluvial sand transport occurs. Fluvial transport channels include
portions of the lower reaches of San Gorgonio River and Snow Creek
(Unit 1), Whitewater River (Unit 2), Mission Creek and Morongo Wash
(Unit 3), and unnamed channels through the alluvial valley floor
deposits (relatively flat areas (< 10 percent slope)) at the base of
the Indio Hills (Unit 4). Fluvial sand transport areas do not provide
habitat for Astragalus lentiginosus var. coachellae and are not
considered to be within the geographical area occupied by the taxon at
the time of listing.
Fluvial sand depositional areas are broad, flat, depositional
plains or channel terraces where sediment carried by fluvial sand
transport channels is deposited (Griffiths et al. 2002, p. 5). During
larger flood events, sediment can be deposited on bajada (large,
coalescing alluvial fans) surfaces as floodplain deposits. There are
four main fluvial sand depositional areas in the Coachella Valley: (1)
In the Snow Creek/Windy Point area, which receives sediment from the
San Gorgonio River and Snow Creek (Unit 1); (2) in the Whitewater
Floodplain area, which receives sediment from the Whitewater River
(Unit 2); (3) in the Willow Hole area, which receives sediment from
Mission Creek and Morongo Wash (Unit 3); and (4) in the Thousand Palms
area, which receives sediment from washes that move sediment from the
alluvial deposits at the base of the Indio Hills (Unit 4). The fluvial
sand depositional areas associated with Units 1, 2, and 3 do provide
habitat for Astragalus lentiginosus var. coachellae, are currently
occupied, and were within the geographical area occupied by the taxon
at the time of listing. The fluvial sand depositional areas associated
with Unit 4 are not known to provide habitat for the taxon, and are not
considered to be within the geographical area occupied by the taxon at
the time of listing.
Aeolian Portion of the Sand Transport System
The aeolian portion of the sand transport system begins where the
fluvial portion of the system ends. Northerly and northwesterly winds
pick up sand-sized grains of sediment accumulated in fluvial sand
depositional areas, and carry them south/southeast through the valley
and into aeolian depositional areas where they form sand fields and
dunes (Griffiths et al. 2002, p. 7).
Aeolian sand source areas are the portions of the fluvial
depositional areas that are subject to wind erosion. Winds erode these
sediment accumulations and carry sand across aeolian sand transport
areas. Between flooding events, which replenish the sediment in fluvial
sand depositional areas, sand available for aeolian transport can be
depleted by wind erosion. Aeolian sand source areas provide habitat for
Astragalus lentiginosus var. coachellae, are currently occupied, and
were within the geographical area occupied by the taxon at the time of
listing.
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Sand eroded from the aeolian sand source areas is blown into and
across the aeolian sand transport areas. Sand may accumulate in aeolian
transport areas when ample sand is available in upwind source areas;
conversely, aeolian transport areas may be depleted of sand when sand
is lacking upwind. Aeolian sand transport areas provide habitat for
Astragalus lentiginosus var. coachellae, are currently occupied, and
were within the geographical area occupied by the taxon at the time of
listing.
Sand carried by wind through the aeolian sand transport areas is
deposited when the velocity of the wind decreases sufficiently. This
occurs mainly where wind is slowed by vegetation (for example, honey
mesquite in the Willow Hole area), other objects, or geological
features. In general, sand formations (for example, sand dunes and sand
fields) persist in aeolian sand depositional areas, whereas sand
accumulations in transport areas are more ephemeral. Aeolian sand
depositional areas provide habitat for Astragalus lentiginosus var.
coachellae, and support the highest numbers of the taxon within the
geographical area occupied by the taxon currently and at the time of
listing.
The fluvial and aeolian processes discussed above have been
disrupted in many areas by development, alteration of stream flow, and
the proliferation of nonnative plants. These threats to the persistence
of Astragalus lentiginosus var. coachellae habitat are discussed
further in the Special Management Considerations or Protection section
below.
The sandy substrates suitable for Astragalus lentiginosus var.
coachellae are dynamic in terms of spatial mobility and tendency to
change back and forth from active to stabilized (Lancaster 1995, p.
231). This has significant consequences for A. l. var. coachellae
because the plant's population densities differ on different types of
sandy substrates, and the dynamics of the fluvial and aeolian sand
transport processes create the variety of substrate types that support
occurrences of the taxon.
Dynamics of sandy substrates in the Coachella Valley are controlled
by two main factors: (1) The supply of sand-sized sediment released,
transported, and deposited by the fluvial system (water-transported);
and (2) the rate of aeolian (windblown) transport (Griffiths et al.
2002, pp. 4-8). The latter is affected primarily by wind fetch (the
length of unobstructed area exposed to the wind).
As discussed above, most of the suitable sandy habitats in the
Coachella Valley are generated from several drainage basins in the San
Bernardino, Little San Bernardino, and San Jacinto Mountains and the
Indio Hills (Lancaster et al. 1993, pp. i-ii; Griffiths et al. 2002, p.
10). Sediment is eroded and washed from hill slopes and channels in the
local hills and alluvial sand deposits in the Thousand Palms area (Unit
4), and is transported downstream in stream channels and within
alluvial fans during infrequent flood events (Lancaster et al. 1993, p.
28; Griffiths et al. 2002, p. 7). Fluvial sand transport is the
dominant mechanism that moves sediment into fluvial sand depositional
areas in the Coachella Valley (Griffiths et al. 2002, p. 7). The
largest sand depositional area in the Coachella Valley is in the
Whitewater River floodplain, northwest of the City of Palm Springs
(Griffiths et al. 2002, p. 5).
The San Gorgonio Pass is between the two highest peaks in southern
California: San Gorgonio Mountain (11,510 feet (ft) (3,508 meters (m)))
to the north and San Jacinto Mountain (10,837 ft (3,303 m)) to the
south. Westerly winds funneling through San Gorgonio Pass are the
dominant mechanism by which aeolian sands are transported from bajadas
and fluvial sand depositional areas to aeolian sand deposits in the
Coachella Valley (Sharp and Saunders 1978, p. 12; Griffiths et al.
2002, p. 1). Astragalus lentiginosus var. coachellae is associated with
various types of sand formations that are formed by these aeolian sand
deposits (Sanders and Thomas Olsen Associates 1996, p. 3).
Summary of Changes From Proposed Rule
In the notice announcing the availability of the draft economic
analysis for public review (77 FR 28846, May 16, 2012), we made a
correction to the proposed revised critical habitat for Astragalus
lentiginosus var. coachellae as identified and described in the
preamble to the proposed rule published in the Federal Register on
August 25, 2011 (76 FR 53224). The correction was to the description of
Unit 1 (76 FR 53240). We proposed 316 acres (ac) (128 hectares (ha)) of
tribal land (Morongo Band of Mission Indians) and 1,791 ac (725 ha) of
private land as critical habitat in Unit 1. Of this area, we
characterized 156 ac (63 ha) of tribal land and 1 ac (0.4 ha) of
private land as being covered under the Western Riverside County
Multiple Species Habitat Conservation Plan (Western Riverside County
MSHCP), due to an incorrect interpretation of GIS data. These lands are
within the boundaries of the Western Riverside County MSHCP, but they
are inholdings (that is, they are not covered by or subject to the
provisions of the Western Riverside County MSHCP or any other habitat
conservation plan). All other acreages reported in the proposed rule
are correct to the best of our knowledge, and the boundaries of the
proposed revised critical habitat remain the same as described in the
proposed rule. No part of the proposed critical habitat for A. l. var.
coachellae is covered by the Western Riverside County MSHCP.
Since publication of the proposed revised critical habitat rule for
Astragalus lentiginosus var. coachellae in the Federal Register on
August 25, 2011 (76 FR 53224), we have received new GIS parcel data
describing land ownership in the Coachella Valley. Because we used this
new data to generate acreages for the final rule, acreages in the final
rule may not match proposed critical habitat acreages for all land
ownership categories (see Table 1). The new data also allowed us to
remove roads from the acreages calculated for this final rule (critical
habitat does not include manmade structures (such as buildings,
aqueducts, runways, roads, and other paved areas) and the land on which
they are located). The acreage of lands designated as critical habitat
and lands excluded from the critical habitat designation (please see
the Exclusions section for a discussion of the lands excluded from the
designation under section 4(b)(2) of the Act) still sum to the total
acreage of lands proposed as critical habitat, minus the area occupied
by roads. A total of 255 ac (103 ha) of roads have been removed from
this designation.
Critical Habitat
Background
Critical habitat is defined in section 3(5)(A) of the Act as:
(1) The specific areas within the geographical area occupied by the
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
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the use of all methods and procedures that are necessary to bring an
endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, 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 requests Federal agency
funding or authorization for 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 a reasonable and prudent alternative to avoid destruction
or adverse modification of critical habitat.
Under section 3(5)(A)(i) of the Act's definition of critical
habitat, areas within the geographical area occupied by the species at
the time it was listed are included in a critical habitat designation
if they contain physical or biological features (1) which are essential
to the conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical and biological features within an area, we focus on the
principal biological or physical constituent elements (primary
constituent elements such as roost sites, nesting grounds, seasonal
wetlands, water quality, tide, soil type) that are essential to the
conservation of the species. Primary constituent elements are those
specific elements of the physical or biological features that provide
for a species' life-history processes and are essential to the
conservation of the species.
Under section 3(5)(A)(ii) of the Act's definition of critical
habitat, 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. For example, an area currently occupied by the species
but that was not occupied at the time of listing may be essential for
the conservation of the species and may be included in the critical
habitat designation. We designate critical habitat in areas outside the
geographical area occupied by a species only when a designation limited
to its range would be inadequate to ensure the conservation of the
species.
The geographical area occupied by Astragalus lentiginosus var.
coachellae at the time it was listed (1998) that contains the physical
or biological features essential to the conservation of the species
that may require special management considerations or protection
includes ``the Coachella Valley between [the cities of] Cabazon and
Indio'' (63 FR 53598). We are designating these areas under section
3(5)(A)(i) of the Act's definition of critical habitat. At the time of
listing, the fluvial sand transport areas were not occupied (nor are
they occupied today); however, we have identified fluvial sand
transport areas as essential for the conservation of A. l. var.
coachellae under section 3(5)(A)(ii) of the Act's definition of
critical habitat, i.e.,''[s]pecific 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.''
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.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. 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 area is unimportant or may not be needed
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) prohibitions described in section 9 of the Act.
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 or Biological Features
In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act
and regulations
[[Page 10454]]
at 50 CFR 424.12, in determining which areas within the geographical
area occupied by the species at the time of listing to designate as
critical habitat, we consider the physical or biological features
essential to the conservation of the species and which 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 historical, geographical, and ecological
distributions of a species.
We derive the specific physical or biological features essential to
Astragalus lentiginosus var. coachellae from studies of this taxon's
habitat, ecology, and life history as described in the Critical Habitat
section of the proposed critical habitat rule published in the Federal
Register on August 25, 2011 (76 FR 53224), 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 5-year review for A. l. var. coachellae signed on
September 1, 2009 (Service 2009). We have determined that A. l. var.
coachellae requires the following physical or biological features:
Space for Individual and Population Growth and for Normal Behavior
Astragalus lentiginosus var. coachellae has a limited geographical
and ecological distribution. Within its limited range, A. l. var.
coachellae requires space for the essential geomorphological processes
on which it depends, including natural fluvial (water) and aeolian
(wind) transport and deposition of sandy substrates (see the Habitat
section of the proposed critical habitat rule for A. l. var. coachellae
for more detailed discussion of fluvial and aeolian sand transport in
Coachella Valley (76 FR 53226)). Protection of aeolian and fluvial
processes is crucial to maintain habitat for A. l. var. coachellae.
These processes are responsible for transporting and depositing sand
that is the foundation of habitat for A. l. var. coachellae.
Disruption, redirection, or curtailment of these processes can result
in a lack of adequate amounts of sand to produce the different
formations that support habitat (for example, active dunes and sand
fields). Protecting aeolian sand transport corridors between A. l. var.
coachellae occurrences is also important for the dispersal of the
species' windblown fruits into temporally unoccupied habitat to
reestablish reproductive occurrences (metapopulation structure).
Astragalus lentiginosus var. coachellae can produce fruit and viable
seed at very low rates without the aid of insect pollinators, but is
dependent upon insect pollinators to generate the amount of seed
typically produced by individuals of the taxon (Meinke et al. 2007, p.
37; also see comment number 7 in the Summary of Comments and
Recommendations section below). Protecting aeolian sand transport
corridors also provides space for pollinator movement between
occurrences, which is important for the long-term maintenance of
occurrences. Therefore, based on the information above, we identify
areas supporting aeolian sand transport corridors that provide space
for seed dispersal and pollinator movement, to be physical or
biological features essential to the conservation of this taxon.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Astragalus lentiginosus var. coachellae is primarily found on
various types of sand formations including active sand dunes,
stabilized or partially stabilized dunes, active sand fields,
stabilized sand fields, shielded sand dunes and fields, ephemeral sand
fields, and alluvial sand deposits on floodplain terraces of active
washes. Each of these sand deposit formations provides habitat for A.
l. var. coachellae to varying degrees (see Habitat section of the
proposed critical habitat rule for A. l. var. coachellae for further
discussion of sand formations that support the taxon (76 FR 53226)).
The taxon also requires moving water and air to transport sand from
areas where the sand originates to occupied habitat areas (depositional
areas) (precipitation occurs mostly during large winter storms and
intense summer thunderstorms (Griffiths et al. 2002, p. 5)). Astragalus
lentiginosus var. coachellae can be found in abundance on shielded sand
fields, and the A. l. var. coachellae plants in these areas are
important for the conservation of the taxon. However, we do not
consider shielded habitat to contain the physical or biological
features essential to the conservation of the taxon because these areas
are permanently cut off from the sand transport system. Shielded areas,
although they currently contain sand formations, will eventually lose
these formations as the winds remove sand over time. Therefore, based
on the information above, we identify the other above-mentioned sand
formations (active sand dunes, stabilized or partially stabilized
dunes, active sand fields, stabilized sand fields, ephemeral sand
fields, and alluvial sand deposits on floodplain terraces of active
washes) to be a physical or biological feature essential to the
conservation of this taxon.
The specific physiological and soil nutritional needs of Astragalus
lentiginosus var. coachellae are not known at this time. The taxon
shows variation in productivity and life-history patterns that appear
to coincide with local variations in precipitation (wetter years result
in higher levels of seed germination (for example, Barrows 1987, p. 2))
and variations across its range (plants in the northwestern portion of
the range where rainfall is higher are more likely to grow larger and
survive into their second year or longer (Meinke et al. 2007, p. 25)).
However, the specific optimal soil moisture range for the taxon is
unknown.
Additionally, the taxon does not grow in some areas that appear to
contain suitable habitat. For example, Astragalus lentiginosus var.
coachellae grows on some portions of the alluvial sand deposits on
floodplain terraces of Morongo Wash, but not others, and it does not
grow in the bed of the wash when the bed is dry even though the bed
contains sandy substrates (J. Avery, USFWS Biologist, pers. obs. 2004-
2009). These apparent inconsistencies may be due to microsite
differences (such as nutrient availability, soil microflora or
microfauna, soil texture, or moisture). Research is needed to determine
the specific nutritional and physiological requirements of A. l. var.
coachellae.
Sites for Reproduction
Astragalus lentiginosus var. coachellae plants, like most plants,
do not require areas for breeding or reproduction other than the areas
they occupy and any area necessary for pollinators and seed dispersal.
Reproduction sites accommodate all phases of the plant's life history.
Seeds likely require certain soil conditions to germinate (for example,
moisture and nutrient levels within a certain range or close proximity
to the soil surface), but as discussed above, we do not yet know what
those requirements are. In addition, wind is important for the
dispersal of the windblown fruits into
[[Page 10455]]
temporally unoccupied habitat (metapopulation structure) of A. l. var.
coachellae.
The primary visitors of Astragalus lentiginosus var. coachellae
appear to be nonnative honeybees (Apis mellifera) (Meinke et al. 2007,
p. 36). These bees appear to be flexible in their choice of nesting
sites. For example, bee nests were found in discarded tires, in Tamarix
spp. trees, and under a bridge near A. l. var. coachellae occurrences
(Meinke et al. 2007, p. 36).
Native solitary bees, which may be the natural pollinators of
Astragalus lentiginosus var. coachellae, utilize several plant species
as pollen and nectar sources (Karron 1987, p. 188). Maintaining
adequate populations of these bees within or near A. l. var. coachellae
occurrences, as well as between A. l. var. coachellae occurrences,
likely depends on the presence of a variety of native plants in
sufficient numbers. We do not know, however, why native bees have not
yet been observed pollinating A. l. var. coachellae. Until specific
pollinators for A. l. var. coachellae are identified, we are unable to
consider protection of those pollinators' specific habitat explicitly
via this critical habitat designation. Therefore, based on the
information above, we identify aeolian sand transport corridors as
providing space needed for pollen and seed dispersal and pollinator
movement to be a physical or biological feature essential to the
conservation of this taxon.
Habitats Protected From Disturbance or Representative of the
Historical, Geographical, and Ecological Distributions of the Taxon
Astragalus lentiginosus var. coachellae is strongly associated with
active, stabilized, ephemeral, and shielded sandy substrates in the
Coachella Valley (Sanders and Thomas Olsen Associates 1996, p. 3;
Barrows and Allen 2007, p. 323). This taxon is primarily found on loose
aeolian (wind transported) or fluvial (water transported) sands that
form dunes or sand fields and along margins of sandy washes (Sanders
and Thomas Olsen Associates 1996, p. 3). Please see the Background
section above for a description of the sand transport system.
In order to maintain adequate replenishment of sands into aeolian
sand depositional areas, it is important that sand-transport corridors
between fluvial and aeolian sand depositional areas remain unobstructed
for wind passage. The strong wind energy in this region can also erode
sands from wash margins and suitable A. l. var. coachellae habitat,
temporally shifting A. l. var. coachellae habitat into other areas, and
thereby allowing the taxon to be dispersed and to colonize new areas or
recolonize previously occupied areas. As a result, it is also necessary
to protect sufficient space to allow for these dynamic aeolian sand
deposits to shift in their distribution. Therefore, based on the
information above, we identify the fluvial and aeolian portions of the
sand transport system that provide habitat protected from disturbance
or representative of the historical, geographical, and ecological
distributions of the taxon to be a physical or biological feature
essential to the conservation of this taxon.
Primary Constituent Element for Astragalus lentiginosus var. coachellae
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of Astragalus lentiginosus var. coachellae within the
geographical area occupied at the time of listing, focusing on the
features' primary constituent elements (PCEs). Primary constituent
elements are those specific elements of the physical or biological
features that provide for a species' life-history processes.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the taxon's
life-history processes, we determine that the primary constituent
element specific to Astragalus lentiginosus var. coachellae is:
Sand formations associated with the sand transport system in
Coachella Valley, California. These sand formations have the following
features:
(a) They are active sand dunes, stabilized or partially stabilized
sand dunes, active or stabilized sand fields (including hummocks
forming on leeward sides of shrubs), ephemeral sand fields or dunes,
and fluvial sand deposits on floodplain terraces of active washes.
(b) They are found within the fluvial sand depositional areas, and
the aeolian sand source, transport, and depositional areas of the sand
transport system.
(c) They comprise sand originating in the hills surrounding
Coachella Valley and alluvial deposits at the base of the Indio Hills,
which is moved into the valley by water (fluvial transport) and through
the valley by wind (aeolian transport).
We consider the fluvial sand depositional areas and the aeolian
sand source, transport, and depositional areas of the sand transport
system described in (b) to be within the geographical area occupied by
Astragalus lentiginosus var. coachellae at the time the taxon was
listed, whereas the fluvial sand transport areas referenced in (c) are
considered to be outside the geographical area occupied by the taxon at
the time of listing or currently. The sand formations provide substrate
components and conditions suitable for growth. The aeolian sand
transport corridor also provides space for seed dispersal and
pollinator movement needed to maintain sand movement and genetic
diversity of the taxon.
With this designation of critical habitat, we identify the physical
or biological features essential to the conservation of the taxon,
focusing on the identification of the features' primary constituent
element sufficient to support the life-history processes of the taxon.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features that are essential to the conservation of
the species and that may require special management considerations or
protection. The features essential to the conservation of this taxon
may require special management considerations or protection to reduce
the following threats: direct and indirect effects of development
(urban and recreational), nonnative plant species, unauthorized off-
highway vehicle (OHV) impacts, mining and other activities or
structures that may cause alteration of stream flow, and groundwater
pumping.
Development
The Coachella Valley continues to attract increasing numbers of
people and associated urban development. Urban and recreational
development can impact Astragalus lentiginosus var. coachellae directly
by converting suitable, often-occupied, habitat to structures,
infrastructure, landscaping, or other nonnatural ground cover that does
not support the growth of the taxon. Structures and landscaping can
also impact A. l. var. coachellae habitat indirectly by altering local
aeolian and fluvial regimes. Such alterations can result in degraded A.
l. var. coachellae habitat downstream or downwind of developed areas by
inhibiting the movement of loose, unconsolidated sands needed for the
formation and maintenance of suitable habitat vital to the growth and
reproduction of the taxon. If the sand transport system is
[[Page 10456]]
altered, sand cannot be moved through the valley effectively to replace
sand lost from the system downstream/downwind as a result of ongoing
fluvial and aeolian processes.
Special management considerations or protection of the essential
physical or biological features within critical habitat areas are
needed to address the threats posed to Astragalus lentiginosus var.
coachellae habitat by urban and recreational development. Management
actions that could ameliorate these threats include, but are not
limited to: Protection of lands that support suitable habitat and
associated sand transport systems and siting future development such
that disruption of fluvial and aeolian sand transport processes is
minimized and deposition areas are preserved. These management actions
will protect the essential physical or biological features for the
taxon by decreasing the direct loss of habitat to development and by
helping to maintain the sand transport system and sand deposition areas
that together provide the sand formations that are necessary components
of A. l. var. coachellae habitat.
Preserving large areas of suitable habitat with intact wind and
depositional regimes and preserving areas vital to the maintenance of
the sand transport system are important to maintain existing habitat
and prevent further habitat loss. Preserving a variety of different
habitat types (for example, sand dunes, sand fields) throughout the
range of the taxon should help maintain the genetic and demographic
diversity (individuals in different age classes at any given time) of
Astragalus lentiginosus var. coachellae.
Designing and orienting structures, infrastructure, and landscaping
such that they minimize the blockage of sand movement will also help to
prevent the disruption of the sand transport system and further habitat
loss. For example, orienting a building so that the face of the
building is at an oblique angle with the prevailing wind direction may
allow more sand to move around the building than would occur if the
face of the building were at a right angle with the direction of
windblown sand movement. Planning development such that structures and
landscaping are located outside of areas vital to sand transport will
also help lessen the degradation of Astragalus lentiginosus var.
coachellae habitat.
Nonnative Plants
Invasive nonnative plant species, such as Brassica tournefortii
(Saharan mustard), Schismus barbatus (Mediterranean grass), and Salsola
tragus (Russian-thistle), can impact Astragalus lentiginosus var.
coachellae habitat by stabilizing loose sediments and reducing
transport of sediment to downwind areas, thus making habitat unsuitable
for A. l. var. coachellae. Additionally, Tamarix spp. (salt cedar) can
create wind breaks in the aeolian transport system and is used to
decrease the movement of sand, for example, onto railroad tracks and
infrastructure right-of-ways in the Coachella Valley. Dense cover of
nonnative taxa may also impede the natural wind dispersal of the mature
fruits of A. l. var. coachellae. This will curtail natural reproduction
within a given site and natural dispersal to repopulate temporally
unoccupied sites.
Management activities that could ameliorate these threats include,
but are not limited to: Active removal of nonnative plant species and
targeted herbicide application (provided herbicides can be shown not to
negatively impact Astragalus lentiginosus var. coachellae plants or
seeds). These management activities will protect the essential physical
or biological features for the taxon by helping to control nonnative
plants, which can degrade Astragalus lentiginosus var. coachellae
habitat.
Unauthorized Off-Highway Vehicle (OHV) Impacts
Unauthorized OHV use may impact Astragalus lentiginosus var.
coachellae habitat by making substrate conditions unsuitable for growth
through the alteration of the sand transport system, changes in plant
community composition, and disruption of the substrate, which can cause
soils to lose moisture and may also impact soil microflora or
microfauna (USFWS 2008, p. 8766). The native plant community associated
with A. l. var. coachellae habitat allows for sand movement and does
not inhibit dispersal. Disturbance from OHV use can affect the plant
composition of the native plant community. Management activities that
could ameliorate the threat of unauthorized OHV use include fencing and
signage of habitat areas to assist in educating the public and engaging
local authorities to improve the enforcement of laws prohibiting OHV
unauthorized use. Control of unauthorized OHV use in habitat occupied
by A. l. var. coachellae has recently improved through the efforts of a
local law enforcement task force in habitat areas including lands
managed by the Bureau of Land Management (BLM) in the Willow Hole
(depositional area in Unit 3) and Snow Creek (depositional area in Unit
1) areas, although OHV use remains on many privately owned lands.
Alteration of Stream Flow
The construction and operation of water percolation ponds, sand and
gravel mines, and, to a lesser degree, dikes and debris dams can
negatively impact Astragalus lentiginosus var. coachellae habitat if
they prevent the fluvial transport of sand to habitat areas through
diversion, channelization, or damming (Griffiths et al. 2002, pp. 13,
23). For example, the percolation ponds constructed on BLM and
Coachella Valley Water District lands in the Whitewater River
floodplain have substantially altered the transport of sand to habitat
areas downstream and downwind, resulting in the severe degradation of
sand and loss of A. l. var. coachellae habitat in these areas
(Griffiths et al. 2002, pp. 6, 42).
Management activities that could ameliorate the threats posed to
Astragalus lentiginosus var. coachellae habitat by alteration of stream
flow include, but are not limited to: Working with concerned parties to
find and implement alternatives that allow for the removal or
reconfiguration of existing barriers to fluvial sand transport,
restoring sand transport to a more natural state, and working with
concerned parties to design and implement future projects to maximize
conservation/restoration of natural sand transport. These management
activities will protect the essential physical or biological features
for the taxon by helping to maintain the sand transport system that
provides the sand that creates the sand formations that form the basis
of A. l. var. coachellae habitat.
Groundwater Pumping
Hummocks (local accumulations of sand that form when sand
accumulates around, and is held in place by, shrubs or clumps of
vegetation) formed by Prosopis spp. (mesquite, which has deep tap roots
to reach groundwater, and is thus adversely impacted when the
groundwater table is lowered beyond the reach of its roots) and other
shrubs contribute to the creation and stabilization of sand dunes and
sand fields by anchoring dunes and making them less vulnerable to wind
erosion. Windblown sand accumulates in areas where wind speed is
reduced (by topographical features, rocks, shrubs, or other objects)
near the ground (Fryberger and Ahlbrandt 1979, p. 440). Prosopis
glandulosa var. torreyana (honey mesquite) is the native mesquite in
western Riverside County. The shrubs in the hummock help to stabilize
and support sand deposits around the
[[Page 10457]]
hummock, which support Astragalus lentiginosus var. coachellae
occurrences and its sand dune and field habitat. These shrubs, unlike
nonnative plants used as windbreaks as discussed above, do not degrade
A. l. var. coachellae habitat by substantially blocking movement of
sand to habitat areas downwind. The mesquite shrubs in the Banning
Fault/Willow Hole area are senescent and appear to be dying, likely due
to ongoing artificial lowering of groundwater levels in the subbasin to
provide water for human use (Mission Springs Water District 2008, p. 4-
97). Similar mesquite hummocks that existed historically have already
been lost in and near the Thousand Palms Reserve (in the Thousand Palms
Conservation Area), likely due to groundwater withdrawals (based on
water well log data, field observation, and aerial photos) (J. Avery,
pers. obs. 2006). Loss of the anchoring mesquite shrubs will lead to
the loss of the associated hummocks over time by the erosion of sand
deposits, therefore affecting A. l. var. coachellae habitat created or
maintained by the trapping of sand.
Management activities that could ameliorate the threats posed to
Astragalus lentiginosus var. coachellae habitat by groundwater pumping
include, but are not limited to: Subsurface irrigation of existing
mesquite plants, and the planting, restoring, and irrigating of
mesquite where needed; and removal of extensive tamarisk, which can
compete with A. l. var. coachellae for groundwater, along railroad
rights-of-way, water courses, oases, etc. These management activities
will protect the essential physical or biological features for A. l.
var. coachellae by helping to maintain much of the extant mesquite
hummocks within the range of the taxon and by restoring an undetermined
acreage of historical mesquite hummocks that maintain (or will
maintain) portions of A. l. var. coachellae habitat.
In summary, threats to Astragalus lentiginosus var. coachellae
habitat include urban and recreational development, nonnative plant
species, OHV impacts, alteration of stream flow, and groundwater
pumping. We find that the areas designated as critical habitat within
the geographical area occupied by the taxon at the time of listing
contain the physical or biological features essential to the
conservation of A. l. var. coachellae and that these features may
require special management considerations or protection. Special
management considerations or protection may be required to eliminate,
or reduce to a negligible level, the threats affecting each unit or
subunit and to preserve and maintain the essential features that the
critical habitat units and subunits provide to A. l. var. coachellae.
Additional discussions of threats facing individual sites are provided
in the individual unit descriptions in the Critical Habitat Designation
section below.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific and commercial data available to designate critical habitat.
We reviewed available information pertaining to the habitat
requirements of the 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--are necessary to ensure the
conservation of the species. We relied on information in articles in
peer-reviewed journals, the Coachella Valley MSHCP/NCCP, survey reports
and other unpublished materials, and expert opinion or personal
knowledge. We also used the model developed by the Coachella Valley
Mountains Conservancy (CVMC) to help identify Astragalus lentiginosus
var. coachellae habitat (CVMC 2004). Finally, we used information from
the proposed (69 FR 74468; December 14, 2004) and final (70 FR 74112;
December 14, 2005) critical habitat rules, the current 5-year status
review (Service 2009), the proposed revised critical habitat rule (76
FR 53224; August 25, 2011), and other information in our files.
We are designating critical habitat in areas within the
geographical area occupied by the species at the time of listing in
1998. We also are designating specific areas outside the geographical
area occupied by A. l. var. coachellae at the time of listing, because
we have determined that such areas are essential for the conservation
of the taxon. These areas support sand transport processes that are
vital to maintaining suitable habitat, and therefore are essential for
the conservation of the taxon.
Our use of a habitat model to help identify Astragalus lentiginosus
var. coachellae habitat was supported by a peer reviewer who stated,
``Because A. l. var. coachellae is reliant on specialized,
dynamic, habitat where not only the habitat must be preserved but
the processes which create the habitat must be preserved[,]
prediction of this habitat may be easier than documenting it.
Because much of the habitat which is currently occupied by A. l.
var. coachellae may only be occupied by seed in the soil seed bank
and not [by an] easily identifiable vegetative form[,] the
predictive power of a model is similarly important.'' (Knaus, 2011,
p. 1)
Suitable habitat may be occupied by the taxon even if no plants
appear above-ground for several years. Astragalus lentiginosus var.
coachellae populations survive seasonal and annual drought periods
through dormant seeds in the soil (seed bank) as well as root crowns.
Consequently, the number of standing plants at any given time is only a
limited indication of population size (Meinke et al. 2007, p. 39). It
is not known how long A. l. var. coachellae seeds remain viable, but
studies on A. l. var. micans demonstrate that buried seeds may remain
viable for at least 8 years (Pavlik and Barbour 1988, p. 233). A study
including Astragalus lentiginosus var. salinus found that more than 94
percent of seeds remained viable after being buried in the soil for 6
years (Ralphs and Cronin 1987, p. 794). Therefore, we also considered
areas to be occupied where suitable habitat did not contain aboveground
individuals, but likely contain seed banks and dormant root crowns of
A. l. var. coachellae.
We also determined which areas outside the geographical area
occupied by the taxon at the time of listing that provide for the
fluvial transport of sand from areas where sediment is generated to
fluvial depositional areas occupied by Astragalus lentiginosus var.
coachellae are essential for the conservation of A. l. var. coachellae
because they maintain A. l. var. coachellae habitat (see steps 1, 2,
and 3 under Areas Outside the Geographical Area Occupied at the Time of
Listing section below).
We defined the boundaries of each unit using the steps outlined
below:
Areas Within the Geographical Area Occupied at the Time of Listing
(1) Potential suitable habitat for Astragalus lentiginosus var.
coachellae was first identified using areas included in the Coachella
Valley Mountains Conservancy (CVMC) species distribution model for the
taxon (CVMC 2004). The CVMC model was developed using survey data for
A. l. var. coachellae (Bureau of Land Management, unpublished data
2001), habitat variables, and expert opinion, and was created to assist
in the design of preserves and to evaluate the potential benefits of
the (then) proposed Coachella Valley MSHCP/NCCP for the plant (CVMC
2004). Environmental variables associated with A. l. var. coachellae
occurrence locations were identified, and maps containing those
[[Page 10458]]
variables were combined with Geographic Information Systems (GIS) land
use and habitat data to create the model. Eight types of habitats were
used in the model: (1) Margins of active dunes, (2) active shielded
desert dunes, (3) stabilized desert dunes, (4) stabilized sand fields,
(5) stabilized shielded sand fields, (6) ephemeral sand fields, (7)
active sand fields, and (8) mesquite hummocks. The habitat types used
to create the model represented conditions that result from the dynamic
process of sand movement in the Coachella Valley floor; these habitat
types are found in fluvial sand depositional areas and aeolian sand
source, transport, and depositional areas (see Habitat section above
for a detailed discussion of these habitat types). During our analysis
for the 2005 critical habitat designation for A. l. var. coachellae, we
reviewed the validity of the environmental variables used to create the
model with occurrence data and information about the plant's ecology.
We found documentation of A. l. var. coachellae occurrences in all of
the natural communities used to create the model, and concluded that
the model was reasonably capable of identifying suitable habitat for A.
l. var. coachellae. We mapped the modeled habitat using GIS software,
and refined the map to include only areas that we estimate contain the
physical or biological features essential to the conservation of the
taxon.
(2) We analyzed lands covered by the Coachella Valley MSHCP/NCCP,
and determined that Astragalus lentiginosus var. coachellae habitat
within the plan's Conservation Areas sufficiently provides for the
conservation of the taxon within areas covered by the Coachella Valley
MSHCP/NCCP (Conservation Areas are a group of specific areas in which
the bulk of the habitat conservation mandated by the HCP is to take
place). We have determined that the modeled A. l. var. coachellae
habitat outside of the Conservation Areas does not contain the physical
or biological features essential to the conservation of the taxon
because these areas exist as small, disjunct patches, other larger
areas where sand transport has been blocked, or they do not contain
documented occurrences of the taxon.
The modeled Astragalus lentiginosus var. coachellae habitat areas
that are covered by the Coachella Valley MSHCP/NCCP and are within the
Conservation Areas are connected to the fluvial portion of the sand
transport system. The PCE is found in these modeled habitat areas
(fluvial sand transport within Conservation Areas is discussed in Areas
Outside the Geographical Area Occupied at the Time of Listing section
below). Modeled A. l. var. coachellae habitat areas that are covered by
the Coachella Valley MSHCP/NCCP but are outside of the Conservation
Areas may contain the PCE, but for reasons discussed above, we do not
consider these areas to meet the definition of critical habitat for A.
l. var. coachellae. Therefore, in areas covered by the Coachella Valley
MSHCP/NCCP, we confined the critical habitat designation to lands
within the Conservation Areas.
(3) We added areas not covered under the Coachella Valley MSHCP/
NCCP, but that have been determined by biologists familiar with the
taxon, its habitat, and its distribution, to contain the physical or
biological features essential to the conservation of the taxon (see the
2011 proposed critical habitat rule (76 FR 53224 (August 25, 2011)) for
further discussion regarding these areas). The biologists used aerial
map coverages, Service GIS data, and personal knowledge to determine
these areas.
Areas Outside the Geographical Area Occupied at the Time of Listing
We determined that designating only those areas within the
geographical area occupied at the time of listing (also identified as
the occupied fluvial and aeolian depositional areas and intervening
areas needed for aeolian sand transport, pollen and seed dispersal, and
pollinator movement) would not sufficiently provide for the
conservation of Astragalus lentiginosus var. coachellae because
movement of sand from areas where sediment is generated into areas
where the taxon grows is vital to the maintenance of habitat for the
taxon. For sufficient fine-grained sands to reach the aeolian system on
the valley floor and support Astragalus lentiginosus var. coachellae,
it is necessary to protect major fluvial channels that transport sand
from the surrounding drainage basins as well as bajadas and
depositional areas. The Coachella Valley Multiple Species Habitat
Conservation Plan/Natural Community Conservation Plan (Coachella Valley
MSHCP/NCCP) identifies the protection of the above-mentioned
geomorphological processes, including sand transport, as a conservation
goal for several taxa, including A. l. var. coachellae. It will be
impossible to conserve or recover this taxon if fluvial sand transport
sites and processes are lost. Therefore, we determined that certain
fluvial sand transport areas are essential for the conservation of A.
l. var. coachellae and should be designated as critical habitat
regardless of the fact that these areas are outside the geographical
area occupied by A. l. var. coachellae at the time the species was
listed. We used the following steps to determine which portions of the
fluvial sand transport system are essential for the conservation of A.
l. var. coachellae:
Units 1, 2, and 3
(1) We used aerial imagery to determine where the main stream
channels conveying sand to the fluvial sand depositional areas in Units
1, 2, and 3 (San Gorgonio River, Whitewater River, Snow Creek, Mission
Creek, and Morongo Wash) are located, and used GIS software to draw
polygons that define the extent of these streams.
We considered only the lower reaches of main stream channels
(fluvial sand transport areas) that move sediment from the base of the
surrounding mountains and hills into the fluvial depositional areas on
the valley floor to be essential for the conservation of the taxon. If
the lower reaches of any of these main stream channels are lost, sand
transport to portions of the occupied Astragalus lentiginosus var.
coachellae habitat downstream and downwind will be lost as well. This
has occurred where a sand mining operation located in the San Gorgonio
River channel cut off delivery of sand from upstream areas, and reduced
delivery of sand to the San Gorgonio River fluvial depositional areas
by an estimated 14 percent (Griffiths et al. 2002, p. 21). Hence, a
single project in a fluvial sand transport area could potentially
hinder the movement of sand needed to maintain A. l. var. coachellae
habitat.
To determine the upstream extent of the fluvial sand transport
areas, we used GIS data to determine where the ground slope of the main
stream channels becomes greater than 10 percent. Griffiths et al.
(2002) found that the majority of the sand reaching the valley floor
areas in Units 1, 2, and 3 is generated (eroded from parent rock) in
portions of the mountain drainages where the ground slope is greater
than 10 percent. We have identified the portions of main stream
channels with a ground slope of less than 10 percent as sand transport
areas (areas where sand is transported from the base of surrounding
mountains and hills, but little sand is generated).
Unit 4
(2) The sand transport system moving sand into and through the
Thousand Palms area (which contains Unit 4) differs from the system
moving sand into and through Units 1, 2, and 3. In Unit 4, water moving
through unnamed
[[Page 10459]]
washes erodes and moves sand from alluvial deposits at the base of the
Indio Hills. Thus, both generation of sand and fluvial transport of
sand into fluvial depositional areas occurs on these alluvial deposits.
The occupied areas in Unit 4 depend on large flooding events to wash
sands stored in channels on the alluvial valley floor deposits into
fluvial sand depositional areas where the sand can be moved by aeolian
processes. Therefore, for Unit 4, rather than using the 10 percent
slope line to delineate fluvial sand transport areas as we did for
Units 1, 2, and 3 (the areas supporting sand generation and fluvial
sand transport in Unit 4 are less than 10 percent slope), we used
aerial imagery to determine the extent of the alluvial deposits where
the sand is stored, and used our GIS software to create a GIS polygon
to encompass this area. We proposed this area in Unit 4 as critical
habitat for Astragalus lentiginosus var. coachellae because the area
and the fluvial sand transport processes it supports are vital to
maintaining sand formations in the occupied portions of Unit 4 that
form the basis of A. l. var. coachellae habitat in that unit.
Final Critical Habitat Designation
In this revised critical habitat designation for Astragalus
lentiginosus var. coachellae, we selected areas based on the best
scientific data available that possess those physical or biological
features essential to the conservation of the taxon and that may
require special management considerations or protection and other areas
essential for the conservation of A. l. var. coachellae. 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
physical or biological features for Astragalus lentiginosus var.
coachellae. 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. 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 may affect adjacent critical habitat.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in the preamble
of this document. We will make the coordinates or plot points or both
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R8-ES-2011-0064, on our Internet
sites http://www.fws.gov/carlsbad/GIS/CFWOGIS.html, and at the Carlsbad
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT above).
We are designating as critical habitat lands that we have
determined are within the geographical area occupied at the time of
listing and contain sufficient elements of the physical or biological
features to support life-history processes essential to the
conservation of the taxon, and lands outside of the geographical area
occupied at the time of listing that we have determined are essential
for the conservation of Astragalus lentiginosus var. coachellae.
We are designating four units as critical habitat for Astragalus
lentiginosus var. coachellae. The critical habitat areas described
below constitute our best assessment at this time of areas that meet
the definition of critical habitat. Those four units are: (1) San
Gorgonio River/Snow Creek System, (2) Whitewater River System, (3)
Mission Creek/Morongo Wash System, and (4) Thousand Palms System. Table
1 shows acres of land proposed as critical habitat in the 2011 proposed
revised critical habitat rule for A. l. var. coachellae (76 FR 53224),
acres of land excluded from this critical habitat designation under
section 4(b)(2) of the Act (see Exclusions Based on Other Relevant
Impacts section below for detailed discussion of exclusions), and acres
of land designated as critical habitat for A. l. var. coachellae as a
result of this revised critical habitat rule for all four units. We are
designating 7,550 ac (3,055 ha) in accordance with section 3(5)(A)(i)
of the Act (specific areas within the geographical area occupied by the
taxon at the time of listing) and 2,053 ac (831 ha) in accordance with
section 3(5)(A)(ii) of the Act (specific areas outside the geographical
area occupied by the taxon at the time of listing).
BILLING CODE 4310-55-P
[[Page 10460]]
[GRAPHIC] [TIFF OMITTED] TR13FE13.013
[[Page 10461]]
[GRAPHIC] [TIFF OMITTED] TR13FE13.014
[[Page 10462]]
[GRAPHIC] [TIFF OMITTED] TR13FE13.015
[[Page 10463]]
[GRAPHIC] [TIFF OMITTED] TR13FE13.016
[[Page 10464]]
[GRAPHIC] [TIFF OMITTED] TR13FE13.017
[[Page 10465]]
[GRAPHIC] [TIFF OMITTED] TR13FE13.018
BILLING CODE 4310-55-C
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat, for Astragalus lentiginosus
var. coachellae below.
Unit 1: San Gorgonio River/Snow Creek System
Unit 1 consists of 1,172 ac (474 ha) of Federal land, 61 ac (25 ha)
of private land, and 102 ac (41 ha) of local government-owned land in
the Coachella Valley, Riverside County. Unit 1 contains approximately
238 ac (96 ha) of unoccupied fluvial sand transport area associated
with the San Gorgonio River and Snow Creek drainages. These areas are
being designated under section 3(5)(A)(ii) of the Act, because they are
specific areas outside the geographical area occupied by the species at
the time of listing and are essential for the conservation of the
species. The remainder of Unit 1 consists of approximately 1,097 ac
(444 ha) of occupied suitable habitat extending approximately from the
eastern edge of the community of Cabazon to just west of Whitewater
River, and is approximately bound by State Route 111 to the north and
the foot of the San Jacinto Mountains to the south. These areas are
being designated under section 3(5)(A)(i) of the Act, because they are
within the geographical area occupied by the species at the time of
listing and contain those physical or biological features essential to
the conservation of the species. In total, Unit 1 consists of 1,335 ac
(540 ha) of land.
Unoccupied fluvial sand transport areas in this unit contain active
washes associated with San Gorgonio River and Snow Creek, which carry
substrates created by fluvial erosion of the surrounding hills to
occupied fluvial deposition areas in Unit 1 on the valley floor
(Griffiths et al. 2002, pp. 10-11). The unoccupied areas in Unit 1 are
essential for the conservation of Astragalus lentiginosus var.
coachellae because they support the fluvial sand transport process
crucial to the maintenance of the sand formations that form the
foundation of A. l. var. coachellae habitat in the occupied areas of
Unit 1.
Occupied habitat areas of Unit 1 constitute one of the four main
habitat areas supporting Astragalus lentiginosus var. coachellae
(Coachella Valley MSHCP/NCCP, p. 9-21) and contain the physical or
biological features essential to the conservation of A. l. var.
coachellae, including active sand dunes, sand fields, and stabilized
and partially stabilized sand fields that provide substrate components
and conditions suitable for the growth of A. l. var. coachellae
(Coachella Valley MSHCP/NCCP 2008, Table 10-1a) and areas over which
unobstructed aeolian sand transport can occur. The essential features
in Unit 1 may require special management considerations or protection
to address threats from nonnative invasive plants and unauthorized OHV
activity in the occupied areas and threats from alteration of stream
flow in the unoccupied areas that impact habitat in the occupied areas.
Please see the Special Management Considerations or Protection section
of this rule for a discussion of the threats to A. l. var. coachellae
habitat and potential management considerations.
The physical or biological features in the occupied areas in Unit 1
are also essential to the conservation of Astragalus lentiginosus var.
coachellae because they support the westernmost occurrences of the
taxon. Because of their geographic location, these plants and their
habitat receive more rainfall than occurrences and suitable habitat
farther east, which allows many individuals to survive more than one
year, grow larger, and produce more seed, all of which promote the
stability and reduce the chance of extirpation of the occurrences in
this unit (Meinke et al. 2007, p. 33). Also, due to strong winds moving
through this area from the west to east, the occupied habitat in Unit 1
likely acts as a source of seed (and hence, a source of genetic
diversity) for areas of suitable habitat to the southeast (Meinke et
al. 2007, p. 40). Unit 1 likely also contributes to the maintenance of
genetic diversity in other occupied areas through the movement of
pollinators (Meinke et al. 2007, p. 37).
Unit 2: Whitewater River System
Unit 2 consists of 1,955 ac (791 ha) of Federal land; 19 ac (8 ha)
of private land; and 176 ac (71 ha) of local government-owned land in
the Coachella Valley, Riverside County. Unit 2 contains approximately
554 ac (224 ha) of unoccupied fluvial sand transport areas associated
with the Whitewater River watershed. These areas are being designated
under section 3(5)(A)(ii) of the Act because they are specific areas
outside the geographical area occupied by the species at the time of
listing and are essential for the conservation of the taxon. The
remainder of Unit 2 consists of approximately 1,596 ac (646 ha) of
occupied suitable habitat and is approximately bound by State Route 111
to the west, the Southern Pacific Railroad to the north and east, and
dense urban development in the cities of Palm Springs and Cathedral
City to the south. These areas are being designated under section
3(5)(A)(i) of the Act because they are within the geographical area
occupied by the species at the time of listing and contain those
physical or biological features essential to the conservation of the
species. In total, Unit 2 consists of 2,150 ac (870 ha) of land.
[[Page 10466]]
Unoccupied fluvial sand transport areas in this unit contain active
washes associated with Whitewater River, which carry substrates created
by fluvial erosion of the surrounding hills to occupied fluvial
deposition areas in Unit 2 on the valley floor (Griffiths et al. 2002,
pp. 10-11). The unoccupied areas in Unit 2 are essential for the
conservation of Astragalus lentiginosus var. coachellae because they
contain portions of the Whitewater River that support the fluvial sand
transport process crucial to the maintenance of the sand formations
that form the foundation of A. l. var. coachellae habitat in the
occupied areas of Unit 2.
Occupied habitat areas of Unit 2 constitute one of the four main
habitat areas supporting Astragalus lentiginosus var. coachellae
(Coachella Valley MSHCP/NCCP, p. 9-21) and contain the physical or
biological features essential to the conservation of A. l. var.
coachellae, including active and ephemeral sand fields and stabilized
and partially stabilized sand fields that provide substrate components
and conditions suitable for the growth of A. l. var. coachellae
(Coachella Valley MSHCP/NCCP 2008, Table 10-1a) and areas over which
unobstructed aeolian sand transport can occur. The essential features
in Unit 2 may require special management considerations or protection
to address threats from nonnative plants, urban development, alteration
of stream flow, unauthorized OHV activity in the occupied depositional
areas, and threats from alteration of stream flow that impact habitat
in occupied areas. Please see the Special Management Considerations or
Protection section of this rule for a discussion of the threats to A.
l. var. coachellae habitat and potential management considerations.
The physical or biological features in the occupied areas in Unit 2
are also essential to the conservation of Astragalus lentiginosus var.
coachellae because they serve as a corridor between the habitat and
occurrences to the west in Unit 1 and the habitat and occurrences to
the east in Unit 3. Although Unit 2 does not serve as a substantial
source of aeolian sand to Unit 3 relative to the onsite fluvial sand
transport areas in Unit 3 (Mission Creek and Morongo Wash), it may
serve as a corridor for gene flow by means of pollen and seed dispersal
between Units 1, 2, and 3 due to dispersal of seeds from Unit 1 into
Unit 2 and from Unit 2 into Unit 3, combined with movement of
pollinators among the three units (Meinke et al. 2007, p. 37).
Unit 3: Mission Creek/Morongo Wash System
Unit 3 consists of 502 ac (203 ha) of Federal land, 1,497 ac (606
ha) of private land, and 268 ac (108 ha) of local government-owned land
in the Coachella Valley, Riverside County. Unit 3 contains
approximately 1,055 ac (427 ha) of unoccupied fluvial sand transport
area associated with the Mission Creek watershed and a portion of the
Morongo Wash watershed (north of Pierson Boulevard). These areas are
being designated under section 3(5)(A)(ii) of the Act because they are
specific areas outside the geographical area occupied by the species at
the time of listing and are essential for the conservation of the
taxon. The remainder of Unit 3 consists of approximately 1,211 ac (490
ha) of occupied habitat and includes sand deposits on the floodplain
terraces of Morongo Wash south of Pierson Boulevard, and fluvial
depositional areas and aeolian transport and depositional areas
approximately bound (clockwise from the western boundary) by Little
Morongo Road, 18th Avenue, Palm Drive, 20th Avenue, Artesia Road, and
Mihalyo Road, in or near the City of Desert Hot Springs. These areas
are being designated under section 3(5)(A)(i) of the Act, because they
are within the geographical area occupied by the species at the time of
listing. In total, Unit 3 consists of 2,313 ac (936 ha) of land.
Unoccupied fluvial sand transport areas in this unit contain active
washes associated with Mission Creek and Morongo Wash (north of Pierson
Boulevard), which carry substrates created by fluvial erosion of the
surrounding hills to occupied fluvial deposition areas in Unit 3 on the
valley floor (Griffiths et al. 2002, pp. 10-11). The unoccupied areas
in Unit 3 are essential for the conservation of Astragalus lentiginosus
var. coachellae because they contain portions of Mission Creek and
Morongo Wash that support the fluvial sand transport process crucial to
the maintenance of the sand formations that form the foundation of A.
l. var. coachellae habitat in the occupied areas of Unit 3.
Occupied habitat areas of Unit 3 constitute one of the four main
habitat areas supporting Astragalus lentiginosus var. coachellae
(Coachella Valley MSHCP/NCCP, pp. 9-21-9-22) and contain the physical
or biological features essential to the conservation of A. l. var.
coachellae including stabilized and partially stabilized sand dunes,
active and ephemeral sand fields, stabilized and partially stabilized
sand fields, fluvial sand deposits on floodplain terraces of active
washes (certain areas of Morongo Wash), and mesquite hummocks that
provide substrate components and conditions suitable for the growth of
A. l. var. coachellae (Coachella Valley MSHCP/NCCP 2008, Table 10-1a).
Unit 3 also contains areas over which unobstructed aeolian sand
transport can occur. The essential features in Unit 3 may require
special management considerations or protection to address threats from
nonnative plants, urban development, OHV use in the occupied floodplain
terrace areas, and threats from alteration of stream flow that impact
habitat in occupied areas. Please see the Special Management
Considerations or Protection section of this rule for a discussion of
the threats to A. l. var. coachellae habitat and potential management
considerations.
The physical or biological features in occupied areas in Unit 3 are
also essential to the conservation of Astragalus lentiginosus var.
coachellae because they support the northernmost extent of the taxon's
range and large occurrences containing high densities of the taxon.
Each of these factors contributes to the overall genetic diversity of
A. l. var. coachellae (Meinke et al. 2007, p. 35) and the maintenance
of genetic diversity via the movement of seeds and pollinators (Meinke
et al. 2007, p. 37). The large numbers of individuals also likely
contribute numerous seeds to the soil seed bank. Unit 3 also contains
the only area where A. l. var. coachellae is known to occur in large
numbers on floodplain terraces of an active wash (Morongo Wash).
Unit 4: Thousand Palms System
Unit 4 consists of 3,670 ac (1,485 ha) of Federal land, and 182 ac
(74 ha) of private land in the Coachella Valley, Riverside County. Unit
4 contains approximately 206 ac (83 ha) of unoccupied lands supporting
fluvial sand transport and fluvial deposition (this unit contains
alluvial sand deposition areas that are not occupied) associated with
drainages originating in the Indio Hills. These areas are being
designated under section 3(5)(A)(ii) of the Act because they are
specific areas outside the geographical area occupied by the species at
the time of listing and are essential for the conservation of the
species. The remainder of Unit 4 consists of approximately 3,646 ac
(1,475 ha) of occupied habitat area in the Thousand Palms Preserve
along Ramon Road. These areas are being designated under section
3(5)(A)(i) of the Act because they are within the geographical area
occupied by the
[[Page 10467]]
species at the time of listing and contain those physical or biological
features essential to the conservation of the species. In total, Unit 4
consists of 3,851 ac (1,559 ha) of land.
Unoccupied areas in this unit contain active ephemeral washes that
carry substrates from alluvial deposits to alluvial fan areas where
they can be transported to occupied habitat areas via wind (Lancaster
et al. 1993, p. 28). The unoccupied areas in Unit 4 are essential for
the conservation of Astragalus lentiginosus var. coachellae because
they contain alluvial sand deposits that support the fluvial and
aeolian sand transport processes crucial to the maintenance of the sand
formations that form the foundation of A. l. var. coachellae habitat in
the occupied areas of Unit 4.
Occupied habitat areas of Unit 4 constitute one of the four main
habitat areas supporting Astragalus lentiginosus var. coachellae
(Coachella Valley MSHCP/NCCP, p. 9-22) and contain the physical or
biological features essential to the conservation of A. l. var.
coachellae, including active dunes, active sand fields, and mesquite
hummocks that provide substrate components and conditions suitable for
the growth of A. l. var. coachellae (Coachella Valley MSHCP/NCCP 2008,
Table 10-1a), and areas over which unobstructed aeolian sand transport
can occur. The essential features in the occupied portion of Unit 4 may
require special management considerations or protection to address
threats from nonnative plants. According to Meinke et al. (2007, p.
18), this area supports infestations of Brassica tournefortii (Saharan
mustard); researchers observed thousands of acres of A. l. var.
coachellae habitat inundated with dense populations of this nonnative
plant species. Existing suburban development may require active
management measures (for example, collection of sand from developed
areas for redistribution within the wind movement corridor). The
expansion of new urban development in areas supporting fluvial sand
transport and deposition is also a threat to the essential features in
this unit that may require special management considerations or
protection, as are unauthorized OHV activity and a proposed flood
control project that could disrupt or permanently destroy the sand
transport system in the Thousand Palms area by diverting drainages that
provide sand to occupied areas during large flooding events. Please see
the Special Management Considerations or Protection section of this
rule for a discussion of the threats to A. l. var. coachellae habitat
and potential management considerations.
The physical or biological features in the occupied areas of Unit 4
are also essential to the conservation of the species because they
support occurrences containing large numbers of the taxon that
contribute to the overall genetic diversity of Astragalus lentiginosus
var. coachellae (Meinke et al. 2007, p. 35) and because they are
located in the southeasternmost portion of the taxon's range that is
hydrologically independent and physically isolated from the other
units. As such, this unit is important to help buffer excessive losses
in other parts of the range.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action 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 which 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 Courts 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, 442 (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 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) 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, or
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
[[Page 10468]]
control over the action (or the agency's discretionary involvement or
control is authorized by law). Consequently, Federal agencies sometimes
may 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 physical or
biological features to an extent that appreciably reduces the
conservation value of critical habitat for Astragalus lentiginosus var.
coachellae. 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. For A. l. var. coachellae, this includes
supporting the sand formations that form the basis of the taxon's
habitat and the areas over which the associated sand transport
processes that sustain these sand formations occur.
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.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for Astragalus lentiginosus var. coachellae. These
activities include, but are not limited to:
(1) Actions that would interrupt the fluvial or aeolian transport
of sand to areas occupied by A. l. var. coachellae. Such actions would
lead to the degradation of the sand formations that form the basis of
A. l. var. coachellae habitat by blocking sand from replenishing
occupied areas where the sand is being removed by aeolian processes.
(2) Actions that would damage or kill plants that trap sand and
create sand formations that support A. l. var. coachellae (such as
hummocks that contain Prosopis glandulosa var. torreyana (honey
mesquite)). These include actions that lower the groundwater table
below the reach of root systems of plants such as P. g. var. torreyana,
which results in the death of the plants, and the loss of the sand
formations to wind erosion.
(3) Actions that alter waterways. Such actions could decrease the
amount or alter the deposition location of sand entering the sand
transport system, and thus reduce the amount of sand available for A.
l. var. coachellae habitat.
(4) Actions that contribute to the introduction or proliferation of
nonnative plants, such as Brassica tournefortii (Saharan mustard) and
trees planted as windbreaks. Such actions may interfere with the
movement of sand, which would prevent sand from moving downwind and
contributing to the sand formations that form the basis of A. l. var.
coachellae habitat.
(5) Actions such as development and landscaping that cover or
remove substrate. Such actions convert suitable A. l. var. coachellae
habitat to groundcover that does not support the taxon.
(6) Actions such as OHV use that disrupt substrates. Such actions
can cause sufficient alteration of sand formations supporting A. l.
var. coachellae occurrences to make the habitat unsuitable to support
the taxon.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act 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 integrated natural resources management plan (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.''
There are no Department of Defense lands that meet the definition
of critical habitat and, as a result, no lands have been exempted under
section 4(a)(3)(B)(i) of the Act.
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 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.
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate 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.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area
[[Page 10469]]
would receive from the protection from destruction or adverse
modification as a result of actions with a Federal nexus; the
educational benefits of mapping essential habitat for recovery of the
listed species; and any benefits that may result from a designation due
to State or Federal laws that may apply to critical habitat.
When identifying the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan that provides
equal to or more conservation than a critical habitat designation would
provide.
In the case of Astragalus lentiginosus var. coachellae, the
benefits of critical habitat include public awareness of A. l. var.
coachellae presence and the importance of habitat protection, and in
cases where a Federal nexus exists, increased habitat protection for A.
l. var. coachellae due to the protection from destruction or adverse
modification of critical habitat. In practice, a Federal nexus exists
only on Federal land or for projects undertaken, funded, or requiring
authorization by a Federal agency.
When we evaluate the existence of a conservation plan, we consider
a variety of factors, including but not limited to, whether the plan is
finalized; how it provides for the conservation of the essential
physical or biological features; whether there is a reasonable
expectation that the conservation management strategies and actions
contained in a management plan will be implemented into the future;
whether the conservation strategies in the plan are likely to be
effective; and whether the plan contains a monitoring program or
adaptive management to ensure that the conservation measures are
effective and can be adapted in the future in response to new
information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction. If exclusion of an area from critical habitat will result
in extinction, we will not exclude it from the designation.
Based on the information provided by entities seeking exclusion, as
well as any additional public comments received, we evaluated whether
certain lands in critical habitat Units 1 through 4 were appropriate
for exclusion from this final designation pursuant to section 4(b)(2)
of the Act. The Secretary is exercising his discretion to exclude
several areas from critical habitat designation for Astragalus
lentiginosus var. coachellae. Table 2 below provides approximate areas
(ac, ha) of lands that meet the definition of critical habitat but are
excluded under section 4(b)(2) of the Act in this final critical
habitat rule.
Table 2--Area Excluded From Critical Habitat Designation by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Area meeting the definition of Area excluded from critical
critical habitat habitat
Unit Specific area ---------------------------------------------------------------
acres hectares acres hectares
----------------------------------------------------------------------------------------------------------------
1............................. Coachella Valley 1,898 768 1,898 768
MSHCP/NCCP.
Morongo Band of 313 127 313 127
Mission Indians
Lands.
Unit 1 total.... 2,212 895 2,212 895
2............................. Coachella Valley 4,558 1,844 4,558 1,844
MSHCP/NCCP.
Agua Caliente 579 234 579 234
Band of
Cahuilla
Indians Lands.
Unit 2 total.... 5,137 2,078 5,137 2,078
3............................. Coachella Valley 5,491 2,222 5,491 2,222
MSHCP/NCCP.
4............................. Coachella Valley 3,193 1,292 3,193 1,292
MSHCP/NCCP.
Subtotal Coachella Valley MSHCP/NCCP............ 15,140 6,127 15,140 6,127
Subtotal Tribal lands........................... 893 361 893 361
Total........................................... 15,874 6,413 15,874 6,413
----------------------------------------------------------------------------------------------------------------
We believe these areas are appropriate for exclusion under the
``other relevant factor'' provisions of section 4(b)(2) of the Act
because:
(1) Their value for conservation will be preserved into the future
by existing protective actions.
(2) Exclusion of these areas could help preserve the partnerships
we developed with local stakeholders and encourage the establishment of
future conservation and management of habitat for Astragalus
lentiginosus var. coachellae and other sensitive taxa.
(3) Exclusion of these areas could help preserve our partnerships
with tribes and foster future dialog and cooperative actions as well as
development of habitat management plans on tribal lands.
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 (Industrial Economics, Inc. (IEc)
2012). The draft analysis, dated May 11, 2012, was made available for
public review and comment from May 16 through June 15, 2012 (77 FR
28846; May 16, 2011). Following the close of the comment period, a
final economic analysis (FEA) (dated January 29, 2013) of the potential
economic effects of the designation was developed taking into
consideration the public comments and any new information (IEc 2013).
The intent of the FEA is to quantify the economic impacts of all
potential conservation efforts for Astragalus lentiginosus var.
coachellae; some of these costs will likely be incurred regardless of
whether we designate critical habitat (baseline). The economic impact
of the 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 (for
example, 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
[[Page 10470]]
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. The analysis looks retrospectively at
baseline impacts incurred since the species was listed, and forecasts
both baseline and incremental impacts likely to occur with the
designation of critical habitat.
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. Decisionmakers 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 retrospectively at costs that
have been incurred since 1998 (63 FR 53596, October 6, 1998), 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 a 20-year analysis period
reflects the maximum amount of time under which future activities and
economic impacts associated with the designation can be reliably
projected, given available data and information. The FEA quantifies
economic impacts of Astragalus lentiginosus var. coachellae
conservation efforts associated with the following categories of
activity: (1) Residential, commercial, and industrial development; (2)
water management and use; (3) transportation activities; (4) energy
development; (5) sand and gravel mining; and (6) Tribal activities.
The economic analysis includes high- and low-end estimates of
incremental costs. Both estimates include the incremental impacts
associated with addressing adverse modification in section 7
consultation. The high-end estimate also includes project modification
costs associated with development in the City of Desert Hot Springs and
railroad upgrades not covered by the Coachella Valley MSHCP/NCCP, as
well as potential administrative costs incurred by the Agua Caliente
Band of Cahuilla Indians. These costs are only included in the high
estimate because of uncertainty over whether Desert Hot Springs will
develop within the 100-year floodplain and whether railroad upgrades
are likely, and because a public comment submitted by the Agua Caliente
Band of Cahuilla Indians suggests that development may not occur within
proposed revised critical habitat. As a result, the low-end impacts
consist solely of administrative costs, except those that may be
incurred by the Agua Caliente Band of Cahuilla Indians (IEc 2013, p. 4-
2).
Implementation of conservation activities for residential,
commercial, and industrial development is the largest cost category in
the high-end estimate of incremental impacts. All of these costs are
projected to occur in the unoccupied portion of Unit 3, within the City
of Desert Hot Springs. Proponents of transportation activities, such as
road and bridge construction and maintenance, are likely to experience
the next largest impacts after residential, commercial, and industrial
development. No incremental project modification costs are estimated
for water management activities. Although two water districts,
Metropolitan Water District of Southern California and the Desert Water
Agency, may experience incremental impacts for projects occurring in
unoccupied, fluvial habitat, characteristics of potential projects and
specific project modifications that could be recommended for projects
are uncertain. Project modification costs therefore could not be
estimated. The FEA does not estimate any incremental project
modification costs for energy projects, because these projects are
located within occupied habitat, where we cannot reasonably
differentiate between actions that avoid jeopardy to the species and
actions needed solely to avoid destruction or adverse modification of
critical habitat, and because the construction and development of new
wind energy facilities is a covered activity under the MSHCP/NCCP. No
incremental project modification costs are anticipated for mining
activities.
The FEA also does not anticipate any incremental project
modification costs on Agua Caliente Band of Cahuilla Indians lands
because the proposed revised critical habitat on those lands is
occupied habitat, where we cannot reasonably differentiate between
actions that avoid jeopardy to the species and actions needed solely to
avoid destruction or adverse modification of critical habitat. The
Morongo Band of Mission Indians do not anticipate economic activity
within proposed revised critical habitat on Morongo Band of Mission
Indians lands, because these areas are located entirely within the
floodplain; therefore, the FEA does not estimate any incremental
project modification costs for Tribal activities. The total incremental
impacts are estimated to be $270,000 to $880,000 ($24,000 to $77,000
annualized) in present-value terms using a 7 percent discount rate over
the next 20 years (2012 to 2032) in areas proposed as revised critical
habitat (IEc 2012, pp. ES-2-ES-3, ES-7-ES-9).
Our economic analysis did not identify any disproportionate costs
that are likely to result from the designation. Consequently, the
Secretary has determined not to exercise his discretion to exclude any
areas from this designation of critical habitat for Astragalus
lentiginosus var. coachellae based on economic impacts.
A copy of the FEA with supporting documents is available at http://www.fws.gov/carlsbad/GIS/CFWOGIS.html, http://www.regulations.gov at
Docket No. FWS-R8-ES-2011-0064, and at the Carlsbad Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT).
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 Department of Defense (DOD) where a
national security impact might exist. In preparing this final rule, we
have determined that the lands meeting the definition of critical
habitat for Astragalus lentiginosus var. coachellae are not owned or
managed by the Department of Defense, and, therefore, we anticipate no
impact on national security. Consequently, the Secretary is not
exercising 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
[[Page 10471]]
consider any social impacts that might occur because of the
designation.
Land and Resource Management Plans, Conservation Plans, or Agreements
Based on Conservation Partnerships
When we evaluate whether a current land management or conservation
plan (HCPs as well as other types) provides adequate management or
protection, we consider a variety of factors, including but not limited
to, whether the plan is finalized; how it provides for the conservation
of the essential physical or biological features; whether there is a
reasonable expectation that the conservation management strategies and
actions contained in a management plan will be implemented into the
future; whether the conservation strategies in the plan are likely to
be effective; and whether the plan contains a monitoring program or
adaptive management to ensure that the conservation measures are
effective and can be adapted in the future in response to new
information.
We believe that the Coachella Valley Multiple Species Habitat
Conservation Plan and Natural Community Conservation Plan (Coachella
Valley MSHCP/NCCP) provides adequate management or protection for the
taxon, and, to continue and strengthen our conservation partnerships
with the plan's participants and to foster additional partnerships, the
Secretary is exercising his discretion to exclude lands covered by this
plan that provide for the conservation of Astragalus lentiginosus var.
coachellae. Details of our analysis for this plan are described below.
Exclusions Under Section 4(b)(2) of the Act--Coachella Valley MSHCP/
NCCP
The Coachella Valley MSHCP/NCCP is a large-scale,
multijurisdictional habitat conservation plan encompassing about 1.1
million ac (445,156 ha) in the Coachella Valley of central Riverside
County. The Coachella Valley MSHCP/NCCP is also a ``Subregional Plan''
under the State of California's Natural Community Conservation Planning
(NCCP) Act, as amended. An additional 69,000 ac (27,923 ha) of tribal
reservation lands distributed within the plan area boundary are not
included in the Coachella Valley MSHCP/NCCP. The Coachella Valley
MSHCP/NCCP addresses 27 listed and unlisted ``covered species,''
including Astragalus lentiginosus var. coachellae. On October 1, 2008,
the Service issued a single incidental take permit (TE-104604-0) under
section 10(a)(1)(B) of the Act to 19 permittees under the Coachella
Valley MSHCP/NCCP for a period of 75 years. Participants in the
Coachella Valley MSHCP/NCCP include eight cities (Cathedral City,
Coachella, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs,
and Rancho Mirage); the County of Riverside, including the Riverside
County Flood Control and Water Conservation District, Riverside County
Parks and Open Space District, and Riverside County Waste Management
District; the Coachella Valley Association of Governments; Coachella
Valley Water District; Imperial Irrigation District; California
Department of Transportation; California State Parks; Coachella Valley
Mountains Conservancy; and the Coachella Valley Conservation Commission
(the created joint powers regional authority). The Coachella Valley
MSHCP/NCCP was designed to establish a multiple-species habitat
conservation program that minimizes and mitigates the expected loss of
habitat and incidental take of covered species, including A. l. var.
coachellae (USFWS 2008, pp. 1-207, and Appendix A, pp. 10-50).
The permit covers incidental take resulting from habitat loss and
disturbance associated with urban development and other proposed
covered activities. These activities include public and private
development within the plan area that requires discretionary and
ministerial actions by permittees subject to consistency with the
Coachella Valley MSHCP/NCCP policies. An associated Management and
Monitoring Program is also included in the Coachella Valley MSHCP/NCCP
and identifies specific management actions for the conservation of
Astragalus lentiginosus var. coachellae.
Approximately 36,398 ac (14,730 ha) of modeled habitat for
Astragalus lentiginosus var. coachellae occurs in the Coachella Valley
MSHCP/NCCP Plan Area (Coachella Valley MSHCP/NCCP 2008, p. 9-25). Under
the Coachella Valley MSHCP/NCCP, approximately 15,706 ac (6,356 ha) of
modeled A. l. var. coachellae habitat will be lost to development. To
mitigate this loss, the Coachella Valley MSHCP/NCCP will preserve 7,176
ac (2,904 ha) of modeled habitat for the taxon in perpetuity. Another
4,497 ac (1,820 ha) are anticipated to be conserved through
complementary and cooperative efforts by Federal and State agencies and
nongovernmental organizations. Additionally, 7,707 ac (3,118 ha) of A.
l. var. coachellae modeled habitat within the Plan Area were preserved
prior to completion of the Coachella Valley MSHCP/NCCP (acres which
coincidentally occur on three Coachella Valley fringe-toed lizard (Uma
inornata) reserves in the Coachella Valley Preserve System). These
lands and the 11,650 ac (4,715 ha) of lands yet to be conserved under
the Coachella Valley MSHCP/NCCP will total 19,357 ac (7,833 ha) of A.
l. var. coachellae modeled habitat within the Coachella Valley MSHCP/
NCCP Reserve System.
As habitat areas are acquired under the Coachella Valley MSHCP/
NCCP, they are legally protected within the Reserve System and the
direct impacts of development are precluded. All areas covered under
the Coachella Valley MSHCP/NCCP that meet the definition of critical
habitat for A. l. var. coachellae fall within the Conservation Areas of
the HCP. The Conservation Areas of the Coachella Valley MSHCP/NCCP are
predetermined areas that provide habitat for species covered under the
plan; these areas are designed to conserve natural communities,
ecological processes, and biological corridors and linkages between
major habitat areas. The Coachella Valley MSHCP/NCCP Reserve System
will be assembled from land conserved within these Conservation Areas.
This protection, as well as implementation of the avoidance,
minimization, and mitigation measures and management and monitoring
programs identified in the Coachella Valley MSHCP/NCCP, will reduce
impacts to this taxon compared to what would have occurred otherwise.
Benefits of Inclusion--Coachella Valley MSHCP/NCCP
Regulatory Benefits (Endangered Species Act)
The principal benefit of including an area in a critical habitat
designation is the requirement of Federal agencies to ensure actions
they fund, authorize, or carry out are not likely to result in the
destruction or adverse modification of any designated critical habitat,
the regulatory standard of section 7(a)(2) of the Act under which
consultation is completed. Federal agencies must consult with the
Service on actions that may affect critical habitat and must avoid
destroying or adversely modifying critical habitat. Federal agencies
must also consult with us on actions that may affect a listed species
and refrain from undertaking actions that are likely to jeopardize the
continued existence of such species. The analysis of effects to
critical habitat is a separate and different analysis from that of the
effects to the species. Therefore, the difference in outcomes of these
two analyses represents the regulatory benefit of critical habitat. The
regulatory standards are different, as the jeopardy analysis
[[Page 10472]]
investigates the action's impact on the survival and recovery of the
species, while the adverse modification analysis focuses on the
action's effects on the designated habitat's contribution to
conservation. This will, in many instances, lead to different results
and different regulatory requirements. Thus, critical habitat
designations may provide greater benefits to the recovery of a species
than would listing alone.
For some species (including Astragalus lentiginosus var.
coachellae), and in some locations (in particular, those occupied by
the taxon), the outcome of these analyses will be similar, because
effects to habitat will often also result in effects to the species and
it is often difficult or impossible to differentiate between actions
that avoid jeopardy to the species and actions needed solely to avoid
destruction or adverse modification of critical habitat. However, much
of the land considered for exclusion from this critical habitat
designation is not occupied by the taxon (areas supporting fluvial sand
transport processes). In these areas, impacts to critical habitat will
not result in direct impacts to A. l. var. coachellae plants.
Therefore, the outcome of an adverse modification analysis in these
areas would differ from the outcome of a jeopardy analysis.
Critical habitat may provide a regulatory benefit for Astragalus
lentiginosus var. coachellae when there is a Federal nexus present for
a project that might adversely modify critical habitat. A Federal nexus
generally exists where land is federally owned, or where actions
proposed on non-Federal lands require a Federal permit or Federal
funding. In the absence of a Federal nexus, the regulatory benefit
provided through section 7 consultation under the Act does not exist.
Any activities over which a Federal agency has discretionary
involvement or control affecting designated critical habitat on Federal
land would trigger a duty to consult under section 7. However, no
Federal lands are covered under the Coachella Valley MSHCP/NCCP.
The potential for a Federal nexus for activities proposed on non-
Federal lands varies widely and depends on the particular circumstances
of each case. Nevertheless, because the breadth of potential Federal
actions that may trigger a duty to consult under section 7 is quite
broad, we cannot say with certainty that future development of, or
activities on, non-Federal lands will always lack a Federal nexus. In
some portions of the lands identified as critical habitat for
Astragalus lentiginosus var. coachellae that are covered under the
Coachella Valley MSHCP/NCCP, a Federal nexus seems possible despite the
areas in question not being on Federal lands. The unoccupied fluvial
sand transport areas of the essential habitat covered under the
Coachella Valley MSHCP/NCCP may fall within the jurisdiction of the
U.S. Army Corps of Engineers (Corps) pursuant to section 404 of the
Clean Water Act. Therefore, we expect there will be a Federal nexus for
projects in the fluvial sand transport areas, as projects that impact
these areas may require Corps permits. Also, highway or railroad
improvement projects on lands adjacent to Interstate Highway 10 or the
Southern Pacific railway line that are covered by the Coachella Valley
MSHCP/NCCP may have a Federal nexus via the U.S. Department of
Transportation. Thus, designation of these areas as critical habitat
for A. l. var. coachellae could provide a regulatory benefit. However,
where there is no discernible Federal nexus on lands covered under the
Coachella Valley MSHCP/NCCP that we've identified as critical habitat
for A. l. var. coachellae, we consider the regulatory benefit of
designation of those non-Federal lands to be small.
If protections provided by critical habitat designation are
redundant with protections already in place on lands identified as
areas that meet the definition of critical habitat for Astragalus
lentiginosus var. coachellae, the benefits of inclusion in critical
habitat are reduced. All areas that meet the definition of critical
habitat covered under the Coachella Valley MSHCP/NCCP fall within the
Conservation Areas of the HCP. Within the Conservation Areas,
protections afforded Astragalus lentiginosus var. coachellae and its
habitat by the Coachella Valley MSHCP/NCCP include, for example,
requiring permittees to comply with applicable avoidance, minimization,
and mitigation measures and land-use adjacency guidelines (standards
delineated for land uses adjacent to or within Conservation Areas
necessary to avoid or minimize edge effects), and conservation of
suitable habitat and those areas supporting the geomorphologic
processes sustaining the sand formations in those areas (sand transport
system) (Coachella Valley MSHCP/NCCP 2008, Section 4 and Section
9.2.2).
Protective measures required by the Coachella Valley MSHCP/NCCP for
the conservation of Astragalus lentiginosus var. coachellae habitat in
the Conservation Areas are similar to protections that we would require
through consultation provisions under section 7(a)(2) of the Act for A.
l. var. coachellae critical habitat. Adding another layer of regulatory
protections by designating critical habitat on lands in the
Conservation Areas of the Coachella Valley MSHCP/NCCP, therefore, will
not likely add any protection for the taxon. In some rare cases, the
amount or type of protection required by a consultation under section
7(a)(2) of the Act to address impacts to critical habitat could differ
from the protective measures provided by the Coachella Valley MSHCP/
NCCP; however, we do not know under what circumstances this would
occur, if ever. For these reasons, we believe the protections provided
by the Coachella Valley MSHCP/NCCP in the Conservation Areas
substantially diminish any regulatory benefits of designating critical
habitat on these lands.
Educational Benefit
Designating critical habitat also can be beneficial because the
process of proposing critical habitat provides the opportunity for peer
review and public comment on lands we propose to designate as critical
habitat, our criteria used to identify those lands, potential impacts
from the proposal, and information on the taxon itself. The designation
of critical habitat may generally provide previously unavailable
information to the public. Public education regarding the potential
conservation value of an area may also help focus conservation and
management efforts on areas of high conservation value for certain
species. Information about Astragalus lentiginosus var. coachellae and
its habitat that reaches a wide audience, including parties concerned
about and engaged in conservation activities, is valuable because the
public may not be aware of documented (or undocumented) A. l. var.
coachellae occurrences and unoccupied areas supporting sand transport
processes that have not been conserved or are not being managed.
However, the educational benefits of designating critical habitat
for Astragalus lentiginosus var. coachellae are small and largely
redundant to those derived through conservation efforts currently being
implemented in the private and permittee-owned or controlled lands
covered under the Coachella Valley MSHCP/NCCP. As described above, the
process of developing the Coachella Valley MSHCP/NCCP has involved
several partners including (but not limited to) the eight participating
local jurisdictions, Riverside County,
[[Page 10473]]
California Department of Fish and Game, and Federal agencies. The
educational benefits of critical habitat designation derived through
informing Coachella Valley MSHCP/NCCP partners and other members of the
public of areas important for the long-term conservation of A. l. var.
coachellae have already been and continue to be achieved through
development and implementation of the Coachella Valley MSHCP/NCCP. We,
therefore, believe that the educational benefits of designating
critical habitat for A. l. var. coachellae on lands covered under the
Coachella Valley MSHCP/NCCP are small.
Educational benefits of designating critical habitat for Astragalus
lentiginosus var. coachellae are also largely redundant to those
derived through the publication of the previous proposed and final
critical habitat rules for A. l. var. coachellae. These documents
discuss A. l. var. coachellae biology and habitat requirements, the
location of areas containing the physical or biological features
essential to the conservation of the taxon, and the importance of areas
supporting sand transport processes needed to maintain suitable habitat
for the taxon. Because this information was made available to the
public in these documents, we believe there is little educational
benefit of designating critical habitat for A. l. var. coachellae.
Regulatory Benefit (Other State, Local, and Federal Laws)
The designation of critical habitat for some species may also
strengthen or reinforce some of the provisions in other State and
Federal laws, such as the California Environmental Quality Act (CEQA).
These laws analyze the potential for projects to significantly affect
the environment. To date, the local jurisdictions have not required
additional measures associated with critical habitat for any species in
their discretionary approval processes (for example, pursuant to CEQA),
and are unlikely to do so in the future. This potential benefit is,
therefore, negligible in the Coachella Valley.
In summary, we believe that the regulatory benefit through section
7(a)(2) of the Act of designating critical habitat is small on non-
Federal lands covered under the Coachella Valley MSHCP/NCCP and
occupied by Astragalus lentiginosus var. coachellae because the
likelihood of a future Federal nexus in these areas is small, and
because the existing protections afforded the taxon and its habitat by
the Coachella Valley MSHCP/NCCP likely diminish any regulatory benefits
that might be gained. The regulatory benefit of designation is likely
higher in unoccupied fluvial sand transport areas, due to the greater
possibility for a Federal nexus (via permits required for impacts to
``Waters of the United States'' by the Corps). However, the benefits of
inclusion are similarly diminished in the fluvial sand transport areas
by the protections provided by the Coachella Valley MSHCP/NCCP.
Additionally, we believe the educational benefits of designating
critical habitat for A. l. var. coachellae on lands covered by the
Coachella Valley MSHCP/NCCP are small due to stakeholder involvement in
the design and implementation of the Coachella Valley MSHCP/NCCP and
publication of relevant information in the previous proposed and final
critical habitat rules in 2004 and 2005. There are no potential
ancillary benefits under other laws that would result from designation
of non-Federal lands in the Coachella Valley.
Benefits of Exclusion--Coachella Valley MSHCP/NCCP
We believe conservation benefits would be realized by forgoing
designation of critical habitat for Astragalus lentiginosus var.
coachellae on lands covered by the Coachella Valley MSHCP/NCCP,
including: (1) Continuance and strengthening of our effective working
relationships with all Coachella Valley MSHCP/NCCP jurisdictions and
stakeholders to promote conservation of the A. l. var. coachellae, its
habitat, and 26 other taxa covered by the HCP and their habitat; (2)
allowance for continued meaningful collaboration and cooperation in
working toward protecting and recovering this taxon and the many other
taxa covered by the HCP, including conservation benefits that might not
otherwise occur; (3) encouragement for local jurisdictions to fully
participate in the Coachella Valley MSHCP/NCCP; and (4) encouragement
of additional HCP and other conservation plan development in the future
on other private lands for this and other federally listed and
sensitive taxa.
In the case of Astragalus lentiginosus var. coachellae in the
Coachella Valley, the partnership and commitment by the permittees of
the Coachella Valley MSHCP/NCCP resulted in lands being conserved and
managed for the long term that will contribute to the recovery of the
taxon.
We developed a close partnership with the permittees of the
Coachella Valley MSHCP/NCCP through the development of the HCP, which
incorporates protections (conserved lands) and management for
Astragalus lentiginosus var. coachellae, its habitat, the fluvial sand
transport areas, and the physical or biological features essential to
the conservation of this taxon. Additionally, many landowners perceive
critical habitat as an unfair and unnecessary regulatory burden given
the expense and time involved in developing and implementing complex
regional and jurisdiction-wide HCPs, such as the Coachella Valley
MSHCP/NCCP (as discussed further in Comment 15 below in the Summary of
Comments and Recommendations section of this rule). Exclusion of
Coachella Valley MSHCP/NCCP lands could help preserve the partnerships
we developed with the County of Riverside, Coachella Valley Association
of Governments, and other local jurisdictions in the development of the
HCP, foster future partnerships and development of future HCPs, and
encourage the establishment of future conservation and management of
habitat for A. l. var. coachellae and other sensitive taxa.
The Coachella Valley MSHCP/NCCP provides substantial protection and
management for Astragalus lentiginosus var. coachellae, the fluvial
sand transport areas, and the physical or biological features essential
to the conservation of the taxon. It also addresses conservation issues
from a coordinated, integrated perspective rather than a piecemeal,
project-by-project approach (as would occur under section 7 of the Act
or through smaller HCPs), thus resulting in coordinated landscape-scale
conservation that can contribute to genetic diversity by preserving
covered species populations, habitat, and interconnected linkage areas
that support recovery of A. l. var. coachellae and other listed taxa.
Also, because impacts to plant species do not require an incidental
take permit, protections that plants receive under HCPs related to
covered activities without a Federal nexus are benefits that most
likely would not be realized otherwise. Additionally, in order for the
conservation anticipated by the Coachella Valley MSHCP/NCCP to be fully
realized, it is vital that permittees continue to work with the Service
during the implementation process to ensure the goals of the plan are
met despite unanticipated issues that are likely to arise given the
scope and complexity of the plan. Therefore, it is important that we
encourage full participation in such plans and encourage voluntary
coverage of listed plant taxa in such plans.
In summary, we believe excluding land covered by the Coachella
Valley MSHCP/NCCP from critical habitat will
[[Page 10474]]
provide the significant benefit of maintaining existing regional HCP
partnerships and fostering new ones.
Weighing Benefits of Exclusion Against Benefits of Inclusion--Coachella
Valley MSHCP/NCCP
We reviewed and evaluated the exclusion of approximately 15,140 ac
(6,127 ha) of land within the boundaries of the Coachella Valley MSHCP/
NCCP from our revised designation of critical habitat, and we
determined the benefits of excluding these lands outweigh the benefits
of including them. The regulatory benefits of including the portion of
these lands occupied by Astragalus lentiginosus var. coachellae in the
designation are small because of the unlikelihood of a Federal nexus.
The regulatory benefits of including the portion of these lands not
occupied by the taxon (areas supporting fluvial sand transport
processes) are greater due to the possibility of a Federal nexus
through the Corps. However, these benefits are reduced by the existence
of protections provided through the Coachella Valley MSHCP/NCCP that
are mostly redundant to the regulatory protections that would be
achieved through designation of critical habitat. The educational
benefits of including lands covered under the Coachella Valley MSHCP/
NCCP are small in occupied areas and unoccupied areas.
We believe the benefits of excluding lands covered by the Coachella
Valley MSHCP/NCCP from critical habitat are more significant. Exclusion
of these lands from critical habitat will help preserve the
partnerships we have developed with local jurisdictions and project
proponents through the development and ongoing implementation of the
Coachella Valley MSHCP/NCCP and aid in fostering future partnerships
for the benefit of listed species. Designation of lands covered by the
Coachella Valley MSHCP/NCCP may discourage other partners from seeking,
amending, or completing HCCP/NCCP plans that cover Astragalus
lentiginosus var. coachellae and other listed taxa. Designation of
critical habitat does not require that management or recovery actions
take place on the lands included in the designation. The Coachella
Valley MSHCP/NCCP, however, will provide for significant conservation
and management of A. l. var. coachellae and its habitat and help
achieve recovery of this species through habitat enhancement and
restoration, functional connections to adjoining habitat, and
monitoring efforts. Additional HCPs or other management plans
potentially fostered by this exclusion would also help to recover this
and other federally listed species. Therefore, in consideration of the
relevant impact to current and future partnerships, as summarized in
the Benefits of Exclusion--Coachella Valley MSHCP/NCCP section above,
we determined the significant benefits of exclusion outweigh the
benefits of critical habitat designation.
Exclusion Will Not Result in Extinction of the Species--Coachella
Valley MSHCP/NCCP
We determined that the exclusion of 15,140 ac (6,127 ha) of land
within the boundaries of the Coachella Valley MSHCP/NCCP from the
designation of critical habitat for Astragalus lentiginosus var.
coachellae will not result in extinction of the taxon. Protections
afforded the taxon and its habitat by the Coachella Valley MSHCP/NCCP
provide assurances that the taxon will not go extinct as a result of
excluding these lands from the critical habitat designation. The
jeopardy standard of section 7 of the Act will also provide protection
in occupied areas when there is a Federal nexus. Therefore, based on
the above discussion, the Secretary is exercising his discretion to
exclude 15,140 ac (6,127 ha) of land within the boundaries of the
Coachella Valley MSHCP/NCCP from this final critical habitat
designation.
Exclusions Under Section 4(b)(2) of the Act--Tribal Lands
In accordance with the Secretarial Order 3206, ``American Indian
Tribal Rights, Federal-Tribal Trust Responsibilities, and the
Endangered Species Act'' (June 5, 1997); the President's memorandum of
April 29, 1994, ``Government-to-Government Relations with Native
American Tribal Governments'' (59 FR 22951); Executive Order 13175; and
the relevant provision of the Departmental Manual of the Department of
the Interior (512 DM 2), we believe that fish, wildlife, and other
natural resources on tribal lands are better managed under tribal
authorities, policies, and programs than through Federal regulation
wherever possible and practicable. Based on this philosophy, we believe
that, in most cases, designation of tribal lands as critical habitat
provides very little additional benefit to federally listed species.
Conversely, such designation is often viewed by tribes as an
unwarranted and unwanted intrusion into tribal self-governance, thus
compromising the government-to-government relationship essential to
achieving our mutual goals of managing for healthy ecosystems upon
which the viability of threatened and endangered species populations
depend. We take into consideration our partnerships and existing
conservation actions that tribes have implemented or are currently
implementing when conducting our analysis under section 4(b)(2) of the
Act in this final revised critical habitat designation. We also take
into consideration conservation actions that are planned as part of our
ongoing commitment to the government-to-government relationship with
tribes. Section 4(b)(2) of the Act allows the Secretary to exclude
areas from critical habitat based on economic impacts, impacts to
National security, or other relevant impacts if the Secretary
determines that the benefits of such exclusion outweigh the benefits of
designating the area as critical habitat. However, an exclusion cannot
occur if it will result in the extinction of the species concerned.
We determined approximately 893 ac (361 ha) of lands owned by or
under the jurisdiction of two Tribes meet the definition of critical
habitat under the Act. These tribal lands are found within Units 1 and
2, and are owned by or under the jurisdiction of the Morongo Band of
Mission Indians and the Agua Caliente Band of Cahuilla Indians. In
making our final decision with regard to these tribal lands, we
considered the factors listed above. Under section 4(b)(2) of the Act,
the Secretary is exercising his discretion to exclude approximately 893
ac (361 ha) of land comprised of all reservation lands from this final
revised critical habitat designation (this is all of the tribal land
proposed as critical habitat for A. l. var. coachellae). As described
in our analysis below, this conclusion was reached after considering
the relevant impacts of specifying these areas as critical habitat.
For our 4(b)(2) balancing analysis we considered our partnership
with the Agua Caliente Band of Cahuilla Indians and analyzed the
benefits of including and excluding those lands within the Agua
Caliente Band of Cahuilla Indians Reservation boundary that meet the
definition of critical habitat. The Agua Caliente Indian Reservation
consists of approximately 31,500 acres of land in a checkerboard of
parcels found primarily in the City of Palm Springs, and the Cities of
Cathedral City and Rancho Mirage, and unincorporated Riverside County,
California. This area includes approximately 579 ac (234 ha) that meet
the definition of Astragalus lentiginosus var. coachellae critical
habitat in Unit 2, all of which are within the Agua Caliente Band of
Cahuilla Indians
[[Page 10475]]
Reservation boundary. The Agua Caliente Band of Cahuilla Indians has
worked with our office to develop a draft HCP that includes A. l. var.
coachellae as a covered taxon, and includes conservation measures for
the taxon and its habitat. Although the Agua Caliente Band of Cahuilla
Indians notified us in a letter dated October 6, 2010, that they
suspended their pursuit of a Section 10(a) permit for their draft HCP
(ACBCI 2010a, p. 1), they consider the draft plan to be a Tribal-
approved, final document and implement it as such for land-use planning
on all Reservation lands. The Tribe is continuing to implement the
conservation strategies outlined in the document, and has expressed
their intention to continue to do so (Park 2011, p. 1; pers. com. J.
McBride, 2012) and protect and manage natural resources within their
jurisdiction (ACBCI 2010b, p. ES-1; Park 2011, p. 1).
The Tribe is implementing numerous provisions aimed specifically at
protecting Astragalus lentiginosus var. coachellae habitat (ACBCI
2010b, pp. 2-3, 4-32, 4-53, 4-67, 4-106)), including in areas meeting
the definition of critical habitat for the taxon. Conservation
objectives for A. l. var. coachellae include avoidance, minimization,
and/or mitigation of impacts to active or ephemeral sand fields within
the Section 6 Target Acquisition Area (most of the Agua Caliente Band
of Cahuilla Indians lands that meet the definition of critical habitat
for A. l. var. coachellae are within the Section 6 (Township 4 South,
Range 5 East) Target Acquisition Area, which contains the sand
formations that form the basis of A. l. var. coachellae habitat (see
Primary Constituent Element for Astragalus lentiginosus var. coachellae
section above)). Within the Section 6 Target Acquisition Area,
acquisition or dedication of lands to the Habitat Preserve and
management in perpetuity is targeted to occur for mitigation of impacts
to covered species (including A. l. var. coachellae). The Tribe
anticipates conservation of at least 177 acres within the Section 6
Target Acquisition Area, and acquisition of a minimum of 640 acres of
habitat for conservation in other areas that are potentially suitable
to support the taxon. We anticipate that these provisions and others
aimed at avoiding direct and indirect impacts to the taxon and
avoiding, minimizing, or mitigating impacts to its habitat, sand
sources, and sand transport will play an important role in conserving
the taxon and preventing adverse alteration of A. l. var. coachellae
habitat.
We determined approximately 313 ac (127 ha) of lands owned by or
under the jurisdiction of the Morongo Band of Mission Indians meet the
definition of critical habitat under the Act for Astragalus
lentiginosus var. coachellae. For our section 4(b)(2) balancing
analysis we considered our partnership with the Tribe and analyzed the
benefits of including and excluding those lands within the Morongo Band
of Mission Indians Reservation boundary that meet the definition of
critical habitat.
The Morongo Band of Mission Indians (formerly the Morongo Band of
Cahuilla Mission Indians of the Morongo Reservation) Reservation
consists of over 35,000 ac of land on the western end of the Coachella
Valley. This area includes approximately 313 ac (12 ha) that meet the
definition of Astragalus lentiginosus var. coachellae critical habitat
in Unit 1. Almost all (97 percent) of these Tribal lands identified as
essential for the conservation of A. l. var. coachellae are fluvial
sand transport areas not occupied by the taxon. The Morongo Band of
Mission Indians has not completed a management plan that specifically
provides for conservation of processes contributing to the maintenance
of A. l. var. coachellae habitat. However, the Tribe has land
designations and management policies and practices that contribute to
the conservation of the fluvial sand transport areas identified as
essential habitat for A. l. var. coachellae (Martin 2011, pp. 1-2).
For example, human impacts will be limited in the areas meeting the
definition of critical habitat due to their significant value to the
Tribe in their natural state, and because they are subject to natural
hazards, minimizing their development value. Also, the Morongo Band of
Mission Indians have instituted an ordinance limiting recreational OHV
use to areas where such activities will not impact fluvial sand
transport or habitat areas. Additionally, the Morongo Environmental
Protection Department--Resource Conservation program has implemented
nonnative species removal projects throughout Morongo Band of Mission
Indians lands with consultation from the Inland Empire Resource
Conservation District and the Natural Resources Conservation Service
(U.S. Department of Agriculture). Over 65 percent of the Morongo Band
of Mission Indians lands are listed as ``Open Space/Conservation
element areas'' in the Morongo Band of Mission Indians General Plan,
including active ephemeral washes that contribute to the San Gorgonio
River fluvial sand transport system and large areas unobstructed by
development, that contain suitable habitat with intact wind and
depositional regimes. We anticipate that the Morongo Band of Mission
Indians' dedication to maintaining natural resources and minimizing
impacts to those resources on their lands will contribute greatly to
the conservation of A. l. var. coachellae, its habitat, and sand
transport processes on the Morongo Band of Mission Indians Reservation.
Most of the lands that meet the definition of critical habitat
within the Morongo Band of Mission Indians Reservation are areas
supporting the fluvial transport of sand carried by the San Gorgonio
River into areas occupied by major occurrences of Astragalus
lentiginosus var. coachellae. Lands that meet the definition of
critical habitat within the Agua Caliente Indian Reservation are all
areas with sand formations that form the basis of suitable habitat for
A. l. var. coachellae. Activities on lands that meet the definition of
critical habitat within these tribal reservations could affect the
taxon directly and also affect sand transport processes. Therefore, we
want to foster strong partnerships with these Tribes and work
cooperatively toward conservation of A. l. var. coachellae.
Benefits of Inclusion--Tribal Lands
Regulatory Benefits (Endangered Species Act)
The principal benefit of including an area in a critical habitat
designation is the requirement of Federal agencies to ensure actions
they fund, authorize, or carry out are not likely to result in the
destruction or adverse modification of any designated critical habitat,
the regulatory standard of section 7(a)(2) of the Act under which
consultation is completed. Federal agencies must consult with the
Service on actions that may affect critical habitat and must avoid
destroying or adversely modifying critical habitat. Federal agencies
must also consult with us on actions that may affect a listed species
and refrain from undertaking actions that are likely to jeopardize the
continued existence of such species. The analysis of effects to
critical habitat is a separate and different analysis from that of the
effects to the species. Therefore, the difference in outcomes of these
two analyses represents the regulatory benefit of critical habitat. The
regulatory standards are different, as the jeopardy analysis
investigates the action's impact on the survival and recovery of the
species, while the adverse modification analysis focuses on the
action's effects on the designated habitat's contribution to
[[Page 10476]]
conservation. This will, in many instances, lead to different results
and different regulatory requirements. Thus, critical habitat
designations may provide greater benefits to the recovery of a species
than would listing alone, especially in instances when critical habitat
has been designated where the species does not occur.
Critical habitat may provide a regulatory benefit for Astragalus
lentiginosus var. coachellae when there is a Federal nexus present for
a project that might adversely modify critical habitat. On tribal
reservations there is a Federal nexus through the Bureau of Indian
Affairs (BIA) for projects that could adversely modify critical
habitat. Therefore, there may be a regulatory benefit of including the
tribal lands in the designation, as some projects on tribal lands
identified as essential habitat within Units 1 and 2 may require
consultation with the Service.
However, if protections provided by critical habitat are redundant
with protections already in place, the benefits of inclusion in
critical habitat are reduced. As discussed above, although the Agua
Caliente Band of Cahuilla Indians are no longer pursuing a Section
10(a) permit for their draft HCP (ACBCI 2010a, p. 1), the Tribe is
continuing to implement the conservation strategies outlined in the
document, and plans to continue doing so (Park 2011, p. 1; pers. com.
J. McBride, 2012). The protections afforded sand transport processes
and Astragalus lentiginosus var. coachellae habitat by these
conservation strategies provide for avoidance, minimization, and
mitigation of impacts to A. l. var. coachellae habitat, and habitat
conservation and management (see above discussion of conservation
objectives on Agua Caliente Band of Cahuilla Indians lands for more
detail). Morongo Band of Mission Indians also provides protection for
sand transport processes and A. l. var. coachellae habitat through
Tribal ordinances, management activities, protections provided in the
Tribe's General Plan, and the fact that the Tribe considers Tribal
lands meeting the definition of critical habitat to be of significant
value in their natural state. The regulatory benefits of designating
critical habitat for A. l. var. coachellae on Agua Caliente Band of
Cahuilla Indians and Morongo Band of Mission Indians lands are reduced
by these protections, which are to some extent redundant to the
regulatory protections provided by critical habitat designation. We
expect that the avoidance and minimization of impacts to, and
conservation of, A. l. var. coachellae habitat that would likely result
from consultation under section 7 of the Act on designated Tribal lands
where there is a Federal nexus would be similar to the protections
already put in place by the Tribes. Therefore, we anticipate the
regulatory benefit of including the tribal lands in the designation to
be small.
Educational Benefit
Designating critical habitat also can be beneficial because the
process of proposing critical habitat provides the opportunity for peer
review and public comment on lands we propose to designate as critical
habitat, our criteria used to identify those lands, potential impacts
from the proposal, and information on the taxon itself. We believe the
designation of critical habitat may generally provide previously
unavailable information to the public. Public education regarding the
potential conservation value of an area may also help focus
conservation and management efforts on areas of high conservation value
for certain species. Information about Astragalus lentiginosus var.
coachellae and its habitat that reaches a wide audience, including
parties concerned about and engaged in conservation activities, is
valuable because the public may not be aware of documented (or
undocumented) A. l. var. coachellae occurrences and unoccupied areas
supporting sand transport processes that have not been conserved or are
not being managed.
Due to the existence of survey data and development of the Agua
Caliente Band of Cahuilla Indians' draft HCP, stakeholders in the
region are likely aware of the existence of A. l. var. coachellae on
the portions of Agua Caliente Band of Cahuilla Indians lands proposed
as critical habitat and the importance of these areas to the
conservation of the taxon. Morongo Band of Mission Indians lands in
Unit 1 consist entirely of areas not occupied by A. l. var. coachellae
that support fluvial sand transport processes crucial to maintaining
the sand formations in Unit 1 upon which the taxon depends. During the
development of the proposed revised critical habitat rule, we met with
representatives from the Morongo Band of Mission Indians and the BIA to
inform them of the proposal. As a result of this meeting and further
interactions with tribal representatives and the BIA, we believe the
importance of the fluvial sand transport areas on Morongo Band of
Mission Indians lands to the conservation of A. l. var. coachellae has
been amply communicated to those with the most direct influence over
the management of these areas. The public and local stakeholders have
also been made aware of the importance of these areas to A. l. var.
coachellae conservation through the development and implementation of
the Coachella Valley MSHCP/NCCP. We, therefore, believe there is no
significant educational benefit to including Tribal lands in the
designation.
Educational benefits of designating critical habitat for Astragalus
lentiginosus var. coachellae are also largely redundant to those
derived through the publication of the previous proposed and final
critical habitat rules for A. l. var. coachellae. These documents
discuss A. l. var. coachellae biology and habitat requirements, the
location of areas containing the physical or biological features
essential to the conservation of the taxon, and the importance of areas
supporting sand transport processes needed to maintain suitable habitat
for the taxon. Because this information was made available to the
public in these documents, we believe there is little educational
benefit of designating critical habitat for A. l. var. coachellae.
Regulatory Benefit (Other State, Local, and Federal Laws)
The designation of critical habitat for some species may also
strengthen or reinforce some of the provisions in other State and
Federal laws, such as the California Environmental Quality Act (CEQA).
These laws analyze the potential for projects to significantly affect
the environment. To date, the local jurisdictions have not required
additional measures associated with critical habitat in their
discretionary approval processes (for example, pursuant to the
California Environmental Quality Act), and are unlikely to do so in the
future. This potential benefit is, therefore, negligible in the
Coachella Valley.
In summary, we believe there would likely only be a minimal
regulatory benefit of Astragalus lentiginosus var. coachellae critical
habitat designation on Agua Caliente Band of Cahuilla Indians and
Morongo Band of Mission Indians lands, and no significant educational
benefits.
Benefits of Exclusion--Tribal Lands
We believe significant benefits would be realized by forgoing
designation of critical habitat on reservation lands managed by the
Agua Caliente Band of Cahuilla Indians and the Morongo Band of Mission
Indians. These benefits include:
(1) Continuance and strengthening of our effective working
relationships with all tribes to promote conservation of
[[Page 10477]]
Astragalus lentiginosus var. coachellae and its habitat;
(2) Allowance for continued meaningful collaboration and
cooperation in working toward recovering this species, including
conservation benefits that might not otherwise occur; and
(3) Encouragement of this and other tribes to complete management
plans for this and other federally listed and sensitive species and
habitats, and engage in collaboration and cooperation with the Service
and other organizations and individuals interested in conservation of
the taxon, its habitat, and other biota of mutual interest.
We believe that fish, wildlife, and other natural resources on
tribal lands are better managed under tribal authorities, policies, and
programs than through Federal regulation wherever possible and
practicable. We are committed to ongoing meaningful collaboration and
cooperation with all the affected tribes. For land on the Morongo Band
of Mission Indians Reservation, which is not currently covered by an
HCP, we will continue to work with BIA and the Tribe to develop species
and habitat management plans to promote Astragalus lentiginosus var.
coachellae conservation. For land on the Agua Caliente Band of Cahuilla
Indians Reservation, where development and natural resources are being
managed in accordance with the Tribe's conservation strategies, which
include protections for A. l. var. coachellae, we will continue to work
with the Tribe as they implement these strategies.
Critical habitat designation is often viewed by tribes as an
unwarranted and unwanted intrusion into tribal self-governance, thus
compromising the government-to-government relationship essential to
achieving our mutual goals of managing for healthy ecosystems upon
which the viability of threatened and endangered species populations
depend. For example, in comments submitted during the public comment
periods, the Morongo Band of Mission Indians, the Agua Caliente Band of
Cahuilla Indians, and the U.S. Bureau of Indian Affairs indicated
designation of critical habitat for Astragalus lentiginosus var.
coachellae on tribal lands would negatively impact tribal relations.
Both affected tribes submitted comments indicating they were opposed to
critical habitat designation or believed their lands should be
excluded. Exclusion of tribal reservation lands from critical habitat
will help preserve the partnerships we have developed, reinforce those
relationships we are building with tribes, and foster future
partnerships and development of future management plans. Therefore, we
believe excluding tribal reservation lands from critical habitat
provides the significant benefit of maintaining and strengthening
existing conservation partnerships and fostering new ones.
Weighing Benefits of Exclusion Against Benefits of Inclusion--Tribal
Lands
We reviewed and evaluated the benefits of inclusion and the
benefits of exclusion of Agua Caliente Band of Cahuilla Indians
reservation lands and Morongo Band of Mission Indians reservation lands
as critical habitat for Astragalus lentiginosus var. coachellae.
Including these areas in the critical habitat designation for A. l.
var. coachellae may provide some additional protection under section
7(a)(2) of the Act when there is a Federal nexus, although we expect
any benefits to be small, because they would be at least partially
redundant to existing protections provided by the Tribes. We do not
anticipate educational benefits or ancillary regulatory benefit from
other laws such as CEQA from designating these areas as critical
habitat.
The benefits of excluding Agua Caliente Band of Cahuilla Indians
reservation lands and Morongo Band of Mission Indians reservation lands
from critical habitat are significant. Exclusion of these lands from
critical habitat will help preserve the partnerships we have developed
and reinforce those we are building with the Tribes, and exclusion will
foster future partnerships and development of management plans. As
discussed above, both Tribes are implementing measures that further the
conservation of Astragalus lentiginosus var. coachellae habitat and
land supporting sand transport processes needed to maintain that
habitat. Damaging our partnerships with the Tribes could have the
effect of dissuading the Tribes from continuing these conservation
efforts. Agua Caliente Band of Cahuilla Indians, Morongo Band of
Mission Indians, and BIA emphasized through comment letters provided
during the public comment period their belief that designation of
critical habitat on tribal lands undermines tribal sovereign
governmental authority and interferes with the cooperative government-
to-government trust relationship between the tribes and the United
States. We have excluded tribal lands from previous critical habitat
designations, which has provided the benefit of strengthening our
partnerships with tribal interests in the past, and we are committed to
working with our tribal partners to further the conservation of
Astragalus lentiginosus var. coachellae and other endangered and
threatened species. Therefore, in consideration of the relevant impact
to our government-to-government relationship with tribes and our
current and future conservation partnerships, we determined the
significant benefits of exclusion outweigh the benefits of critical
habitat designation.
In summary, we find that the exclusion of Agua Caliente Band of
Cahuilla Indians and Morongo Band of Mission Indians reservation lands
from this final critical habitat designation will preserve our
partnerships with tribes and foster future dialog and cooperative
actions as well as development of habitat management plans. These
partnership benefits are significant and outweigh the potential
regulatory benefits and any small educational benefits of including
these portions of Unit 1 and Unit 2 in critical habitat for Astragalus
lentiginosus var. coachellae.
Exclusion Will Not Result in Extinction of the Species--Tribal Lands
We determined that the exclusion of 893 ac (361 ha) of Agua
Caliente Band of Cahuilla Indians and Morongo Band of Mission Indians
reservation land from the revised designation of Astragalus
lentiginosus var. coachellae critical habitat will not result in
extinction of the taxon for the following reasons. First, the jeopardy
standard of section 7 of the Act and routine implementation of
conservation measures through the section 7 process due to occupancy of
Astragalus lentiginosus var. coachellae will provide protection to the
taxon on Agua Caliente Band of Cahuilla Indians and Morongo Band of
Mission Indians lands occupied by the taxon where there is a Federal
nexus. Also, on the Morongo Band of Mission Indians lands, most of
which support fluvial sand transport processes, the Tribe's intention
to maintain the areas in their natural state will help ensure the
movement of sand into occupied areas will continue unimpeded.
Additionally, both Tribes provide protection for the taxon, its
habitat, and the processes supporting its habitat via the avenues of
conservation discussed above. Therefore, based on the above discussion,
the Secretary is exercising his discretion to exclude approximately 893
ac (361 ha) of Agua Caliente Band of Cahuilla Indians and Morongo Band
of Mission Indians reservation land from this revised critical habitat
designation.
[[Page 10478]]
Summary of Comments and Recommendations
We requested comments or information from the public on the
proposed revised designation of critical habitat for Astragalus
lentiginosus var. coachellae during two comment periods. 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. The first comment period, associated with the
publication of the proposed revised rule (76 FR 53224), opened on
August 25, 2011, and closed on October 24, 2011. The Service published
a notice announcing the publication of the proposed revised critical
habitat designation in The Press-Enterprise on September 2, 2011. We
also requested comments on the proposed revised critical habitat
designation and associated draft economic analysis during a comment
period that opened May 16, 2012, and closed on June 15, 2012 (a notice
announcing the availability of the draft economic analysis for the
proposed revised critical habitat designation was published in the
Federal Register on May 16, 2012 (77 FR 28846)). We received one
request for a public hearing. The public hearing was conducted on May
31, 2012, in Palm Springs, California. No comments were received during
the public hearing.
During the first comment period, we received 17 comment letters
directly addressing the proposed revised critical habitat designation.
During the second comment period, we received three comment letters
addressing the proposed revised critical habitat designation or the
draft economic analysis. All substantive information provided during
comment periods has either been incorporated directly into this
designation or addressed below. Comments received were grouped into
five general issues specifically relating to the proposed revised
critical habitat designation for Astragalus lentiginosus var.
coachellae and are addressed in the following summary and incorporated
into the final rule as appropriate.
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinions from two experts in plant
biology and one expert in the geomorphology of the Coachella Valley,
all of whom are knowledgeable individuals with scientific expertise
that included familiarity with the geographic region in which
Astragalus lentiginosus var. coachellae occurs and the geological
processes that sustain its habitat. We received responses from two peer
reviewers.
We reviewed all comments received from the two peer reviewers for
substantive issues and new information regarding critical habitat for
Astragalus lentiginosus var. coachellae. In general, the peer reviewers
supported the methods used to determine the proposed revised critical
habitat boundaries, but disagreed with our decision not to propose the
hills and mountains where sediment is generated via water erosion, and
disagreed with the potential for any exclusions in the final
designation. The peer reviewers also provided additional information,
clarification, and suggestions to improve the final critical habitat
rule. Peer reviewer comments, additional information, clarification,
and suggestions are addressed in the following summary and incorporated
into the final rule as appropriate.
Peer Reviewer Comments
Comment 1: One peer reviewer expressed strong support for the geo-
biological approach we used to identify critical habitat for Astragalus
lentiginosus var. coachellae.
Another peer reviewer expressed support of our use of modeled
habitat to identify critical habitat for Astragalus lentiginosus var.
coachellae.
Response to Comment 1: We appreciate the peer reviewers' comments.
We believe the methods used to produce the revised critical habitat
designation are well-supported and both peer reviewers generally agreed
on the validity of our methods.
Comment 2: One peer reviewer pointed out that there may be higher
quality GIS data available now than were available at the time the
model was generated, and that there might be relevant GIS data
available now that did not exist or was not accessible when the model
was generated. The peer reviewer stated that the modeled habitat we
used for this analysis ``should be presented as a dynamic perspective
of habitat which may change in the future''--in other words, that we
should clearly state that the data informing the model that serve as
part of the basis for this critical habitat designation may change over
time.
Response to Comment 2: Any future improvements in the quality of
the data available to inform habitat models of the type used in part to
identify critical habitat for Astragalus lentiginosus var. coachellae
may be used to create future models to guide future actions for the
conservation of the taxon. However, discussions of these potential
improvements are beyond the scope of this critical habitat rule.
Comment 3: One peer reviewer expressed concern that we did not
propose sand source areas in the hills and mountains surrounding the
Coachella Valley, where sediment is generated via water erosion (areas
having 10 percent slope or more) on the basis of presumed redundancy of
transport channels and eroding uplands (which, according to the
reviewer, could be reduced with inappropriate development). The
reviewer urged us to make certain that the critical habitat designation
includes all possible sand source areas, especially in light of the
degree of existing impairment of the sand supply system. Additionally,
the reviewer stated that if specific areas of critical habitat are
subsequently excluded by the Secretary under section 4(b)(2) of the
Act, protection of all possible source areas will become that much more
urgent.
Response to Comment 3: The extensive areas in the hills and
mountains that are ten percent slope or greater and generate sediment
via erosion are important, but including all possible sand source areas
in the critical habitat designation is not essential for the
conservation of Astragalus lentiginosus var. coachellae. We have
determined that the areas supporting fluvial sand transport processes
(i.e., main stream channels in Units 1, 2, and 3; and alluvial deposits
containing multiple washes in Unit 4) are essential for the
conservation of A. l. var. coachellae because without these areas, sand
would not be moved from the base of hills and mountains into the areas
occupied by A. l. var. coachellae, which would result in serious
degradation of A. l. var. coachellae habitat. We therefore did not
propose areas with ten percent slope or greater as critical habitat for
the taxon (see Criteria Used To Identify Critical Habitat section above
for more discussion).
Comment 4: One peer reviewer expressed concern regarding the
exclusions we considered in the proposed rule. The peer reviewer urged
caution regarding exclusions that might, according to the reviewer,
compromise the sand supply system. The peer reviewer also was not
convinced that the Coachella Valley MSHCP/NCCP provides adequate levels
of funding, implementation, and oversight of management actions
required to maintain or improve habitat for Astragalus lentiginosus
var. coachellae (for example, removal of nonnative
[[Page 10479]]
plants, modifications to groundwater availability, and mesquite
restoration).
Response to Comment 4: Please see the Exclusions section above for
our explanation of why we do not expect the exclusions we have made in
this critical habitat designation to compromise the sand transport
system. In that section, we also discuss implementation of the
Coachella Valley MSHCP/NCCP and why we believe the HCP adequately
provides for the conservation of Astragalus lentiginosus var.
coachellae and its habitat.
Comment 5: One peer reviewer feels that redundancy is an important
aspect of building a robust system for the protection of biological
resources, and that the Service should contribute to this redundancy by
including areas in this critical habitat designation that are already
receiving protection under HCPs. This peer reviewer pointed out the
need for redundancy of protections if we are interested in building
robust systems of conservation and was concerned that protections
afforded Astragalus lentiginosus var. coachellae through the Coachella
Valley fringe-toed lizard HCP could be lost if the fringe-toed lizard
is delisted.
Response to Comment 5: We also agree that redundancy of protections
can be beneficial. However, the lands acquired under the Coachella
Valley fringe-toed lizard HCP have been subsumed into and are managed
as part of the Coachella Valley MSHCP/NCCP reserve system, which we
believe adequately provides for the protection of Astragalus
lentiginosus var. coachellae and its habitat regardless of the listing
status of the Coachella Valley fringe-toed lizard. Part of the
incentive for land managers to participate in the HCP process is the
prospect of streamlining regulatory oversight of development and
conservation planning. Critical habitat designated for a plant does not
always add an extra regulatory layer (for example, when there is no
Federal nexus triggering section 7 consultation). However, land
managers may view designation of critical habitat as adding an extra
layer of costly and time-consuming regulatory procedure. This
perception may dissuade some land managers in other areas from
considering HCPs worth pursuing for other species. Designation of
critical habitat for a plant within an operable established HCP could
jeopardize future conservation actions by other potential applicants by
reducing the perceived value of the HCP process for stakeholders.
Comment 6: One peer reviewer stated that the Service should
determine what we would like to propose as critical habitat before
soliciting opinions. The reviewer stated that because a large portion
of the proposed critical habitat may be excluded, those reviewing the
proposal cannot have a concrete idea of how many acres will be included
and where these acres exist, which, according to the reviewer, makes it
very difficult to judge the merits of the proposal.
This peer reviewer also requested we clarify the fact that all
Tribal lands that were proposed as critical habitat for Astragalus
lentiginosus var. coachellae were also considered for exclusion from
the designation.
Response to Comment 6: We provided the acreage of areas being
considered for exclusion from the critical habitat designation in the
proposed critical habitat rule for Astragalus lentiginosus var.
coachellae. We do not know at the time the proposal is published,
which, if any, of these areas will be excluded from the final
designation because we rely in part on comments received during the
comment period following publication of the proposed rule to determine
which areas being considered for exclusion in fact warrant exclusion
from the designation. We did not indicate lands being considered for
exclusion on the maps in the proposed rule.
In the Exclusions section above, we have clarified the fact that
all Tribal lands that were proposed as critical habitat for Astragalus
lentiginosus var. coachellae were also considered for exclusion from
the designation.
Comment 7: One peer reviewer asserted that much more is known about
the pollination and reproductive biology of other desert Astragalus
taxa at Ash Meadows NWR, and that this information could be of use in
Coachella Valley. The reviewer recommended the Pavlik and Barbour
(1986) report (Biological Conservation 46 (1988), pp. 217-242) for
further information.
This peer reviewer also asserted that we were incorrect when we
stated in the proposed critical habitat rule that Mazer and Travers
found Astragalus lentiginosus var. piscinensis to be incapable of
autogamy (the reviewer sited Mazer and Travers 1992, p. 91). The
reviewer points out that Mazer and Travers (1992) reported A. l. var.
piscinensis to have produced selfed seed at very low levels, which is
consistent with the finding of Meinke et al. (2007) that A. l. var.
coachellae produces selfed seed at very low levels. The reviewer goes
on to state that they observed low levels of selfed seed set in A. l.
var. variabilis in greenhouse studies.
The reviewer also stated that percentages and sample sizes would
better summarize data from the pollinator exclusion study of Meinke et
al. (2007, p. 36), and provided references for our soil seed bank
viability discussion including Ziemkiewicz and Cronin (1987) (Journal
of Rangeland Management 34(2): pp. 94-97) and Ralphs and Cronin (1987)
(Weed Science 35: pp. 792-795).
Response to Comment 7: We appreciate the peer reviewer's
suggestions and the information provided. We have incorporated this
information into the appropriate sections of this rule.
Comment 8: One peer reviewer noted that much of the work cited in
the proposed critical habitat rule is unpublished. This reviewer
suggested that perhaps the Service should consider incentivizing
publication in a peer-reviewed journal.
Response to Comment 8: We appreciate the peer reviewer's suggestion
and will continue to encourage publication of results in peer-reviewed
research journals.
Comment 9: One peer reviewer suggested that Table 2 in the proposed
rule could be improved by presenting the amount of occupied and modeled
lands organized by political categories used in Table 2 of the proposed
rule, then listing all of the exclusions, and then presenting what
remains as proposed critical habitat. The reviewer stated that it would
add greater transparency to know what may be required to ensure for the
continued existence of the taxon, and what is actually being protected
if this information were in one place.
This peer reviewer suggested the proposed critical habitat rule
could also be improved by providing better maps. In these maps, the
reviewer feels it would be very valuable to include the considered
exclusions and land ownership, particularly Federal lands because of
the differences in protection provided to plants by the Act on Federal
versus non-Federal lands.
Response to Comment 9: We appreciate the peer reviewer's
suggestions. We have organized the land ownership table in this
critical habitat final rule as suggested (see Table 1). We will
consider adding greater detail to maps included in critical habitat
rules, but the printing standards of the Federal Register are not
compatible with detailed features that would show parcel-level land
ownership data. We constructed the critical habitat units using
Geographic Information System (GIS). The resulting critical habitat GIS
shapefiles are available by request from
[[Page 10480]]
the Carlsbad Field Office (see FOR FURTHER INFORMATION CONTACT).
Comment 10: One peer reviewer pointed out that application of
herbicide may affect the soil seed bank and suggested we conduct a
study which explores the effects of various herbicides on the seed bank
of Astragalus lentiginosus var. coachellae prior to implementing any
management activities involving herbicide.
Response to Comment 10: We appreciate the peer reviewer's concern
and have edited the appropriate section of this final critical habitat
rule to address the potential for herbicides to adversely impact the
soil seed bank. Potential impacts from herbicides will be considered
during implementation of management activities affecting Astragalus
lentiginosus var. coachellae.
Comment From Tribal Interests
Comment 11: The Agua Caliente Band of Cahuilla Indians asserted
that the protections afforded by their draft 2010 Tribal Habitat
Conservation Plan (draft 2010 Tribal HCP) are equal to those expected
to be provided by a critical habitat designation. Agua Caliente Band of
Cahuilla Indians listed the goals for conserving Astragalus
lentiginosus var. coachellae as outlined in the draft 2010 Tribal HCP
and described the measures put forth in the draft 2010 Tribal HCP aimed
at conserving A. l. var. coachellae habitat. They also included
language from the draft 2010 Tribal HCP describing tribal lands on the
Coachella Valley floor and the fluvial sand transport process areas and
planned mitigation for development impacts in these areas.
The Agua Caliente Band of Cahuilla Indians also described their
relationship with the Service by stating, ``The Tribe has, for the past
14 years, been a consistent partner with the Service to develop and
implement a series of increasingly detailed and sophisticated Tribal
HCPs that provide protection to endangered and sensitive species on the
Reservation. It is important to note that the Tribe has always acted in
good faith and chose to develop these plans which include strict
provisions for conservation.'' According to the Agua Caliente Band of
Cahuilla Indians, the Secretary's decision to include or exclude tribal
lands from the critical habitat designation should be based on the
adequacy and value of the tribal/Federal partnership, not on the formal
approval of the draft Tribal Habitat Conservation Plan. They state that
this position is supported by the Secretary's exclusion of Agua
Caliente Band of Cahuilla Indians lands from the critical habitat
designation for Peninsular bighorn sheep.
Further, Agua Caliente Band of Cahuilla Indians state they would
have a disincentive to continue enforcing the draft 2010 Tribal HCP
with respect to Astragalus lentiginosus var. coachellae if critical
habitat is designated on Agua Caliente Band of Cahuilla Indians lands.
And without enforcement of the draft HCP, ``conservation on the
Reservation will proceed in an incomplete and piecemeal fashion, using
section 7 consultations where there is a Federal nexus, and no fee
collection or mitigation on fee land,'' according to the Agua Caliente
Band of Cahuilla Indians.
Although they have not finalized the draft 2010 Tribal HCP and
secured a permit under section 10(a)(1)(B) of the Act, Agua Caliente
Band of Cahuilla Indians state that because they have been enforcing
the terms of the draft 2010 Tribal HCP and continue to maintain their
relationship with the Service, Agua Caliente Band of Cahuilla Indians
lands should be excluded from the critical habitat designation for A.
l. var. coachellae.
Additionally, Agua Caliente Band of Cahuilla Indians expressed
support for exclusion of tribal lands from the designation under
section 4(b)(2) of the Act, because such an exclusion would be in
keeping with Secretarial Order 3206 (June 5, 1997) entitled, ``American
Indian Tribal Rights, Federal-Tribal Trust responsibilities, and the
Endangered Species Act'' (discussed in the Exclusions Under Section
4(b)(2) of the Act--Tribal Lands section above).
In summary, Agua Caliente Band of Cahuilla Indians supports
exclusion of tribal lands from this critical habitat designation and
reliance on the draft 2010 Tribal HCP to avoid ``additional,
unnecessary regulatory burden'' they feel would result from designation
of critical habitat on their lands.
Response to Comment 11: We understand that the Agua Caliente Band
of Cahuilla Indians considers the draft Tribal HCP to be a Tribal-
approved, final document and implements it as such for land-use
planning on all Reservation lands. We have taken their dedication to
implementing their draft Tribal HCP and resulting conservation efforts
for Astragalus lentiginosus var. coachellae and its habitat as well as
other taxa and biological resources, their continuing partnership with
the Service, and issues of tribal self-governance and government-to-
government relations into consideration when comparing the benefits of
including Agua Caliente Band of Cahuilla Indians lands to the benefits
of excluding those lands. Based on the results of this evaluation, the
Secretary is exercising his discretion to exclude all Agua Caliente
Band of Cahuilla Indians lands from this final revised critical habitat
designation (see Exclusions Under Section 4(b)(2) of the Act--Tribal
Lands section above).
Comment 12: The Morongo Band of Mission Indians requested that
their lands be excluded from the critical habitat designation for
Astragalus lentiginosus var. coachellae. In support of this request,
the Morongo Band of Mission Indians provided descriptions of land
designations and management policies and practices they assert will
preserve and limit impacts to biological resources including fluvial
sand transport processes on Morongo Band of Mission Indians lands. They
also described nonnative plant removal projects and a tribal ordinance
aimed at controlling OHV use on Morongo Band of Mission Indians lands.
They argued that although they have not completed a management plan
that specifically provides for conservation of A. l. var. coachellae,
the policies and practices they have implemented contribute to the
conservation and continuance of fluvial sand transport and thus
eliminate the need for designation of proposed Morongo Band of Mission
Indians lands.
The Morongo Band of Mission Indians also provided a discussion of
tribal self-governance and the protocols of a government-to-government
relationship under Secretarial Order 3206, stating that ``* * *
Congressional and Administrative policies should continue to promote
tribal self-government, self-sufficiency, and self-determination,
recognizing and endorsing the fundamental rights of Morongo to set our
own priorities and make decisions affecting our resources and
distinctive ways of life. Morongo Band of Mission Indians has the
ability and resources to manage [Morongo Band of Mission Indians lands
proposed as critical habitat for Astragalus lentiginosus var.
coachellae] and implement reasonable and prudent alternatives to avoid
destruction or adverse modifications to fluvial sand transport in
[these areas].''
Response to Comment 12: We have taken the Morongo Band of Mission
Indians' contributions to the conservation of biological resources on
their lands, their continuing partnership with the Service, as well as
issues of tribal self-governance and government-to-government relations
into consideration when comparing the benefits of including Tribal
lands to the benefits of excluding those lands. Based on the results of
this evaluation, the Secretary is exercising his discretion to exclude
all Morongo Band of Mission
[[Page 10481]]
Indians lands from this final revised critical habitat designation (see
Exclusions Under Section 4(b)(2) of the Act--Tribal Lands section
above).
Comment 13: The U.S. Bureau of Indian Affairs (BIA) expressed their
support of comments submitted by Agua Caliente Band of Cahuilla Indians
and Morongo Band of Mission Indians regarding the proposed critical
habitat for Astragalus lentiginosus var. coachellae and requested that
Agua Caliente Band of Cahuilla Indians and Morongo Band of Mission
Indians lands be excluded from the final critical habitat designation
for the taxon. The BIA considers designation of critical habitat on
Indian lands as an infringement upon and taking of Indian assets by a
fellow trustee (the Service). They outlined a number of Federal
policies and congressional actions relevant to Indian tribes regarding
the Endangered Species Act, which they feel support their request that
Agua Caliente Band of Cahuilla Indians and Morongo Band of Mission
Indians lands be excluded.
The BIA also asserted that Agua Caliente Band of Cahuilla Indians
and Morongo Band of Mission Indians lands should be excluded because
designating critical habitat on these lands would jeopardize
partnerships between the Service and both tribes. According to the BIA,
excluding Agua Caliente Band of Cahuilla Indians and Morongo Band of
Mission Indians lands from the critical habitat designation would allow
voluntary partnerships to continue, which they feel would have a long-
term benefit for Astragalus lentiginosus var. coachellae.
Response to Comment 13: We evaluated the benefits of exclusion of
all reservation lands from this final revised critical habitat
designation. Maintaining and fostering partnerships and good working
relationships with tribes are benefits of exclusion and are supported
by Secretarial Order 3206. Consistent with Secretarial Order 3206 and
Executive Order 13175, we also believe tribal lands are better managed
under tribal authorities, policies, and programs than through Federal
regulation wherever possible and practicable. We found the benefits of
excluding Morongo Band of Mission Indians lands and Agua Caliente Band
of Cahuilla Indians lands to be greater than the benefits of including
these lands in the critical habitat designation (see Exclusions Under
Section 4(b)(2) of the Act--Tribal Lands section above for a detailed
discussion). Therefore, the Secretary is exercising his discretion to
exclude Agua Caliente Band of Cahuilla Indians and Morongo Band of
Mission Indians reservation lands from this final revised critical
habitat designation.
We recognize and value our relationships with both tribes and will
continue to work cooperatively with them to conserve federally listed
species on their lands.
Comment 14: The BIA asserted that it is justified and appropriate
to automatically remove lands from a critical habitat designation that
are subsequently brought into Trust by a tribe upon incorporation into
the Tribal management plan.
Response to Comment 14: The revision of a designation of critical
habitat either by the inclusion or exclusion of any specific area is
required to be accomplished through a rulemaking process by which the
revisions are proposed for public review and comment, and then a final
rule is issued following consideration of all comments and best
available scientific information. Revisions to critical habitat cannot
be automatic.
Comments From HCP Administrators and Permittees
Comment 15: One commenter stated opposition to the Service's
proposed critical habitat designation for Astragalus lentiginosus var.
coachellae on approximately 158 ac (64 ha) within Western Riverside
County MSHCP boundaries. The commenter provided reasoning in support of
their opposition.
Response to Comment 15: The 158 ac (64 ha) to which the commenter
refers is not covered under the Western Riverside County MSHCP. The
Service was in error when we stated in the proposed critical habitat
rule that this area was covered under the Western Riverside County
MSHCP; this area is actually Morongo Band of Mission Indians land. We
corrected this error in the Federal Register notice announcing the
availability of the draft Economic Analysis for the proposed revised
critical habitat designation published on May 16, 2012 (77 FR 28849),
and we explain the error in the Summary of Changes from Proposed Rule
section above. No lands covered under the Western Riverside County
MSHCP have been proposed or designated as critical habitat for
Astragalus lentiginosus var. coachellae. The commenter's issue is
therefore moot.
Comment 16: One commenter provided a description of the Coachella
Valley MSHCP/NCCP and explained how the Coachella Valley MSHCP/NCCP is
expected to add approximately 175,000 ac to an existing 550,000 ac of
public and private conserved land to create a reserve system of 725,000
ac, and they explained how the MSHCP funds ongoing management and
biological monitoring and establishes an endowment to continue
management and monitoring in perpetuity. The commenter stated that the
MSHCP has been and continues to be successful in conserving land to
protect Astragalus lentiginosus var. coachellae and other species and
summarized the number of acres conserved within the sand transport
system by MSHCP partners since 1996 and by the Coachella Valley
Conservation Commission since the MSHCP was permitted. According to the
commenter, areas within the sand transport system are considered a
conservation priority for the Coachella Valley Conservation Commission,
which administers the local implementation of the Coachella Valley
MSHCP/NCCP.
The commenter asserted that any designation of critical habitat on
land under the jurisdiction of Coachella Valley MSHCP/NCCP permittees
is unnecessary and counterproductive to the goal of implementing a
comprehensive, landscape-level approach to conservation in the region.
The commenter stated that critical habitat designations represent a
species-by-species and project-by-project implementation of the Act
that fails to provide the landscape-level conservation, with attendant
management and monitoring, that is necessary to preserve sensitive
species and the natural systems upon which they depend.
The commenter asserted that the Coachella Valley MSHCP/NCCP
stakeholders have demonstrated the depth of their commitment to the
success of the MSHCP and stated that the addition of another layer of
regulation through this critical habitat designation after the
stakeholders have demonstrated their dedication to the MSHCP would
damage the Service's partnership with MSHCP stakeholders and create a
disincentive for participation in the MSHCP.
This commenter's recommendation that lands covered under the
Coachella Valley MSHCP/NCCP be excluded from the critical habitat
designation for Astragalus lentiginosus var. coachellae was supported
by a second commenter. The second commenter also stated that excluding
these lands would not compromise the policies and programs aimed at
protecting and restoring the taxon, and that there is no advantage
either for the agencies, landowners, and citizens committed to the
environmental health of the Coachella Valley or for A. l. var.
coachellae in including these areas in the critical habitat
designation.
[[Page 10482]]
Additionally, the second commenter stated that, as a Coachella
Valley MSHCP/NCCP permittee, the Riverside County Flood Control and
Water Conservation District is subject to applicable MSHCP provisions
including the requirement to contribute mitigation to assist in
achieving the regional conservation objectives identified in the MSHCP,
which includes a number of specific regional objectives to ensure long-
term conservation of Astragalus lentiginosus var. coachellae. The
commenter went on to state that Riverside County Flood Control and
Water Conservation District projects within the proposed revised
critical habitat areas are subject to a Joint Project Review process
required for projects that are located within Conservation Areas, and
that these projects are also subject to review by the Service as
described in the MSHCP. Compliance with the MSHCP by the Riverside
County Flood Control and Water Conservation District and other
Coachella Valley MSHCP/NCCP permittees ensures that the species will be
conserved on a regional basis as intended when the Service authorized
the final MSHCP, according to the commenter.
Two more commenters also supported the recommendation that lands
covered by the Coachella Valley MSHCP/NCCP should be excluded from the
critical habitat designation for Astragalus lentiginosus var.
coachellae.
Both the third and fourth commenters expressed concern with the
proposed designation of critical habitat on lands covered under the
Coachella Valley MSHCP/NCCP, particularly those lands owned and managed
by the Riverside County Flood Control and Water Conservation District
and the Coachella Valley Water District. The third commenter's issues
included their belief that designating critical habitat on lands
covered under the Coachella Valley MSHCP/NCCP will--
Provide negligible, if any, benefits to Astragalus
lentiginosus var. coachellae;
Negate any benefits to the MSHCP permittees from their
efforts to provide regional conservation for A. l. var. coachellae and
invest in establishing a regional habitat-based long-term conservation
program; and
Run counter to statements made in the Implementing
Agreement for the Coachella Valley MSHCP/NCCP (commenter cited Section
14.11 of the Coachella Valley MSHCP/NCCP Implementing Agreement and
Section 6.8 of the Coachella Valley MSHCP/NCCP).
The fourth commenter stated that the Coachella Valley Water
District, another permittee of the Coachella Valley MSHCP/NCCP, has
provided a commitment to the success of the MSHCP, including
establishing constructed habitat, restoring and enhancing existing
habitat, conserving 7,000 ac of Coachella Valley Water District lands
(including over 1,800 ac of its land within the Whitewater River
floodplain that provides habitat for Astragalus lentiginosus var.
coachellae) and a $3.58 million contribution to an endowment fund for
monitoring and adaptive management. This commenter also briefly
described the permittees' responsibilities under the Coachella Valley
MSHCP/NCCP, stating that the approach to conservation that the
permittees have committed to under the MSHCP has been vetted and
approved by the Service and California Department of Fish and Game. The
commenter asserted that Coachella Valley Water District's commitment to
the success of the Coachella Valley MSHCP/NCCP is also demonstrated by
their active participation in the development and implementation of the
MSHCP and their ongoing cooperation with partners and wildlife
agencies.
The fourth commenter expressed concern that the proposed critical
habitat designation puts in question the Service's commitment to the
Coachella Valley MSHCP/NCCP objectives and implementation, and that
designating critical habitat on lands covered under the Coachella
Valley MSHCP/NCCP will jeopardize the ultimate success of the MSHCP.
Designating critical habitat on lands covered by the Coachella
Valley MSHCP/NCCP would create duplicative and redundant regulatory
efforts, according to both the third and fourth commenters (this issue
is discussed further in Response to Comment 18 below). For this reason
and those outlined above, the third commenter requested that lands
within the Coachella Valley MSHCP/NCCP boundaries be excluded from the
final critical habitat designation for Astragalus lentiginosus var.
coachellae, and the fourth commenter requested that the Service
terminate efforts to adopt a revised critical habitat designation for
A. l. var. coachellae.
The third and fourth commenters also asserted that designating
critical habitat on lands covered by the Coachella Valley MSHCP/NCCP
would create a duplicative and redundant regulatory burden, which they
suggest could delay efficient and timely operation and maintenance of
water and flood control infrastructure on lands covered by the
Coachella Valley MSHCP/NCCP.
The third commenter stated that these potential delays could
jeopardize public health and safety. This commenter stated that the
inclusion of existing flood control facilities within the final
critical habitat area would trigger the section 7 consultation process
for any Riverside County Flood Control and Water Conservation District
maintenance, repair, replacement, and rehabilitation activities. The
commenter expressed concern that this may prevent or delay maintenance
of these flood control facilities and thereby pose a potential threat
to public health and safety. Therefore, the commenter stated that the
existing Cabazon Channel, Chino Canyon Levee, Whitewater River Levee,
Mission Creek Channel, and Desert Hot Springs Channel Line E facilities
should be excluded from the final revised critical habitat designation
for Astragalus lentiginosus var. coachellae.
The fourth commenter asserted that this critical habitat
designation is unwarranted, redundant, and counterproductive
considering the success they assert has already been achieved
conserving critical habitat for Astragalus lentiginosus var. coachellae
through the Coachella Valley MSHCP/NCCP.
Response to Comment 16: We have considered the aforementioned
commenters' concerns. In exercising his discretion to exclude areas
from critical habitat under section 4(b)(2) of the Act, the Secretary
weighed the benefits of exclusion against the benefits of inclusion. We
did not exclude areas based on the existence of management plans or
other conservation measures; however, we acknowledge that the existence
of a plan may reduce the benefits of inclusion of an area in critical
habitat to the extent the protections provided under the plan are
largely redundant with conservation benefits of the critical habitat
designation. Thus, in some cases, the benefits of exclusion in the form
of sustaining and encouraging partnerships that result in on-the-ground
conservation of listed species may outweigh the benefits of inclusion.
Based on the discussion in the Exclusions Under Section 4(b)(2) of the
Act--Coachella Valley MSHCP/NCCP section above, the Secretary is
exercising his discretion to exclude all lands covered by the Coachella
Valley MSHCP/NCCP from this final revised critical habitat designation.
Comment 17: One commenter asserted that because the City of Desert
Hot Springs is currently requiring all
[[Page 10483]]
projects within Coachella Valley MSHCP/NCCP Conservation Areas to
undergo the Joint Project Review process, and is actively working to
formally bring their entire city into the MSHCP through a Major
Amendment, excluding all land under the jurisdiction of the City of
Desert Hot Springs from the critical habitat designation for Astragalus
lentiginosus var. coachellae is warranted.
Response to Comment 17: The City of Desert Hot Springs did not
submit comments on the proposed critical habitat designation during
either public comment period and did not request exclusion from this
designation. We are proceeding with this designation based on the
current conditions and participants of the Coachella Valley MSHCP/NCCP
in awareness and consideration of changes in participation of Desert
Hot Springs.
Comment 18: One commenter asserted that many necessary public
infrastructure projects, including flood control and the regional
transportation network, must involve Federal land to some degree, and
virtually all of the Federal land in the area in question is
administered by BLM, whose 2002 BLM California Desert Conservation Area
Plan Amendment for the Coachella Valley already requires BLM actions to
be consistent with the Coachella Valley MSHCP/NCCP. According to the
commenter, including Federal land in the critical habitat designation
is redundant and counterproductive to the conservation partnership that
currently exists between BLM, State and Federal wildlife agencies, and
local jurisdictions. The commenter asserted that Federal lands must,
therefore, be excluded from the critical habitat designation.
This commenter's recommendation that Federal lands be excluded from
the critical habitat designation for Astragalus lentiginosus var.
coachellae was supported by two other commenters. The second commenter
also asserted that excluding these lands would not compromise the
policies and programs aimed at protecting and restoring the taxon, and
that there is no advantage either for the agencies, landowners, and
citizens committed to the environmental health of the Coachella Valley
or for A. l. var. coachellae in including these areas in the critical
habitat designation. The third commenter stated that designation of
critical habitat on Federal land within the Coachella Valley MSHCP/NCCP
plan area would create an additional layer of regulation impacting
efficient and timely operation and maintenance of critical water and
flood control infrastructure on Coachella Valley Water District lands
within the plan area.
Response to Comment 18: We acknowledge that the BLM participates in
the management of certain Conservation Areas or portions of
Conservation Areas within the reserve system of the Coachella Valley
MSHCP/NCCP and provides conservation of biological resources in
accordance with the California Desert Conservation Area Plan Amendment
for the Coachella Valley. We appreciate and commend the efforts of the
BLM to work with the Coachella Valley MSHCP/NCCP permittees and to
conserve federally listed species on their lands.
The Secretary has the discretion to exclude an area from critical
habitat under section 4(b)(2) of the Act after taking into
consideration the economic impact, the impact on national security, and
any other relevant impact if he determines that the benefits of such
exclusion outweigh the benefits of designating such area as critical
habitat, unless he determines that the exclusion would result in the
extinction of the species concerned. Based on the record before us, the
Secretary is not exercising his discretion to exclude the BLM lands,
and we are designating these lands as critical habitat for Astragalus
lentiginosus var. coachellae.
Comment 19: One commenter stated that Unit 3 of the proposed
critical habitat contains the existing Mission Creek Channel and Unit 2
contains the existing Chino Canyon and Whitewater River Levees.
According to the commenter, the channel and levees are existing manmade
features and structures that do not contain the primary constituent
element essential to the conservation of Astragalus lentiginosus var.
coachellae.
Response to Comment 19: The Secretary is exercising his discretion
to exclude lands covered under the Coachella Valley MSHCP/NCCP from
this critical habitat designation under section 4(b)(2) of the Act.
Because Riverside County Flood Control and Water Conservation District
is a permittee of the Coachella Valley MSHCP/NCCP, Mission Creek
Channel and Chino Canyon and Whitewater River Levees have been excluded
from this designation.
Comments Regarding Wind Energy
Comment 20: One commenter stated that although Unit 2 of the
proposed critical habitat is characterized as unoccupied in the
proposed rule, it contains significant wind energy installations and
potential solar energy installations.
Response to Comment 20: Throughout the proposed and final revised
critical habitat rules, we use the term ``unoccupied'' to refer to
areas that, to our knowledge, are not occupied by the target taxon, in
this case Astragalus lentiginosus var. coachellae. We do not intend the
term ``unoccupied'' to imply that an area is not occupied by manmade
structures. It seems the commenter was referring to the entirety of
Unit 2 as being characterized as unoccupied, which is incorrect; only
the fluvial sand transport areas (the Whitewater River channel) of Unit
2 are characterized as unoccupied. To our knowledge, there are no wind
energy installations in the unoccupied fluvial sand transport areas of
Unit 2.
Comment 21: Five commenters expressed concern that designating
critical habitat on lands occupied by wind energy projects would
conflict with Federal and California State policies aimed at promoting
alternative energy by potentially introducing unknown regulatory
burdens and restrictions on the operation of wind energy facilities.
Of these five commenters, four also stated that suitable Astragalus
lentiginosus var. coachellae habitat is found in abundance on wind
energy sites along with the aeolian and fluvial sand transport that
occurs in these areas. All four commenters explained that wind- and
water-borne sands are able to flow freely in between wind turbines,
creating suitable habitat for the taxon. Two of these commenters go on
to assert that approximately 90 percent of the area occupied by wind
power facilities is suitable for A. l. var. coachellae and sand
transport. One commenter also asserted that wind energy is a long-term
land use that does not disturb soils or destroy individual plants in
the course of daily or yearly operations.
These four commenters also describe how measures in place to
protect wind power facilities from vandalism also provide protection
for Astragalus lentiginosus var. coachellae (for example, ``Our wind
project is completely fenced off and patrolled against trespassing and
illegal dumping. This eliminates off-road vehicles, trash dumping and
illegal landscape disposal from this habitat area.'').
For the above reasons, these five commenters asserted that lands
containing wind energy facilities should be excluded from the final
critical habitat designation for Astragalus lentiginosus var.
coachellae. Four of these commenters go on to recommend the specific
areas that should be excluded: The disturbance footprint of
[[Page 10484]]
existing roads, wind turbines, foundations, transformers, pole lines,
underground and overhead lines, meteorological towers, communication
facilities, fences and gates, storage yards, and electrical substations
and interconnects.
Response to Comment 21: The Service appreciates any protections
that may be provided the taxon and its habitat on wind energy
facilities.
The area the commenters referred to in their comment, bounded by
Interstate 10 to the west and Indian Canyon Road to the east, has
multiple landowners. Some of these landowners are permittees of the
Coachella Valley MSHCP/NCCP, others, such as the BLM (a Federal
agency), are not. The Secretary has the discretion to exclude an area
from critical habitat under section 4(b)(2) of the Act after taking
into consideration the economic impact, the impact on national
security, and any other relevant impact if he determines that the
benefits of such exclusion outweigh the benefits of designating such
area as critical habitat, unless he determines that the exclusion would
result in the extinction of the species concerned. In exercising his
discretion to exclude areas from critical habitat under section 4(b)(2)
of the Act, the Secretary weighed the benefits of exclusion against the
benefits of inclusion, and is exercising his discretion to exclude all
lands covered under the Coachella Valley MSHCP/NCCP from this final
revised critical habitat designation (see Response to Comment 16 and
Exclusions Under Section 4(b)(2) of the Act--Coachella Valley MSHCP/
NCCP section above for more detailed discussion). Any lands covered
under the Coachella Valley MSHCP/NCCP containing wind power facilities
are, therefore, excluded from this critical habitat designation.
Based on the record before us, the Secretary is not exercising his
discretion to exclude lands in the area in question that are not
covered by the Coachella Valley MSHCP/NCCP, such as BLM lands, and we
are designating these lands as critical habitat for Astragalus
lentiginosus var. coachellae.
However, when determining critical habitat boundaries within this
final rule, despite our efforts to avoid including developed areas such
as lands covered by buildings, pavement, and other structures because
such lands lack the physical or biological features for Astragalus
lentiginosus var. coachellae, 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. 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 may affect the adjacent critical habitat. So
although some of the lands containing wind energy facilities have been
designated as critical habitat for A. l. var. coachellae (those lands
not covered under the Coachella Valley MSHCP/NCCP), those areas that
are covered by pavement or structures are not included in the
designation and are excluded by text.
Because the areas in question are occupied by Astragalus
lentiginosus var. coachellae, and any project in these areas with a
Federal nexus would require consultation with the Service under section
7 of the Act to address potential impacts to the taxon, the economic
analysis for the critical habitat designation did not predict project
modification costs to wind energy interests due to the designation of
critical habitat, only administrative costs of adding adverse
modification analyses to these future section 7 consultations.
Comments From Other Interested Parties
Comment 22: One commenter expressed strong support for our
designation of critical habitat for Astragalus lentiginosus var.
coachellae, in particular because of the documented population declines
of A. l. var. coachellae (some up to 77 percent according to the
commenter) and the general lack of successful recruitment (the
commenter cited USFWS 2009).
This commenter went on to observe that the proposed critical
habitat appears to include most of the extant locations for Astragalus
lentiginosus var. coachellae and appears to include the sand transport
corridors, sand formations, and alluvial areas that remain viable in
the Coachella Valley area, and that these areas are essential to
maintaining the unique habitat upon which A. l. var. coachellae
depends.
Response to Comment 22: We appreciate the commenter's support of
our proposed designation.
Comment 23: One commenter stated that none of the areas proposed
for critical habitat should be considered for exclusion from the final
designation. This commenter also strongly recommended we utilize the
Service's ``policy for evaluation of conservation efforts when making
listing decisions'' (PECE) (68 FR 15100) when considering exclusions
from the final critical habitat designation. Although the policy was
developed in the context of listing rather than designation of critical
habitat, the commenter asserted that the criteria apply equally well to
determining the benefits of any conservation plan in the context of
considering exclusions.
Response to Comment 23: Section 4(b)(2) of the Act requires the
Secretary to designate critical habitat after taking into consideration
the economic impacts, national security impacts, and any other relevant
impacts of specifying any particular area as critical habitat. An area
may be excluded from critical habitat if it is determined that the
benefits of exclusion outweigh the benefits of designating a particular
area as critical habitat, unless the failure to designate will result
in the extinction of the species. The exclusions in this final rule are
supported under section 4(b)(2) of the Act. After analyzing the
benefits of inclusion and exclusion of proposed critical habitat on
lands covered by the Coachella Valley MSHCP/NCCP and on Agua Caliente
Band of Cahuilla Indians and Morongo Band of Mission Indians
reservation lands, we determined that the benefits of exclusion
outweigh the benefits of inclusion for all of these areas (see
Exclusions Under Section 4(b)(2) of the Act--Coachella Valley MSHCP/
NCCP and Exclusions Under Section 4(b)(2) of the Act--Tribal Lands
sections above). Service biologists continue to work with the
permittees of the Coachella Valley MSHCP/NCCP, the Morongo Band of
Mission Indians, and the Agua Caliente Band of Cahuilla Indians to
ensure the conservation of Astragalus lentiginosus var. coachellae and
its habitat.
The PECE Policy outlines specific criteria by which conservation or
management actions and programs are evaluated for use in making listing
determinations under the Act. However, the PECE Policy explicitly
states that the Policy is not to be used for evaluating conservation or
management actions for critical habitat designations. More
appropriately, with regard to critical habitat, these actions and
programs should be considered under section 4(b)(2) of the Act, and, if
the Secretary wants to exercise his discretion to exclude an area from
a critical habitat designation, evaluated through the balancing
analysis under section 4(b)(2) of the Act to determine if the benefits
of excluding the specific areas covered by them from critical habitat
outweigh the benefits of including them in the designation.
Comment 24: One commenter urged us to determine whether the various
[[Page 10485]]
conservation and management plans in the Coachella Valley manage for
recovery of Astragalus lentiginosus var. coachellae. The commenter
expressed concern that many habitat conservation plans allow what the
commenter sees as substantial destruction of habitat such that even
with mitigation, they result in a net loss of habitat and thus do not
ensure recovery of covered species.
The commenter goes on to state that:
``In invalidating a 1986 regulation that collapsed the
definition of adverse modification with jeopardy, the Ninth Circuit
concluded that the regulation `finds that adverse modification to
critical habitat can only occur when there is so much critical
habitat lost that a species' very survival is threatened,' which
would `drastically narrow the scope of protection commanded by
Congress under the ESA.' (Gifford Pinchot Task Force v. United
States Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004).
This and other court decisions demonstrate that critical habitat
must receive a greater degree of protection than is typically
provided by HCPs or other management plans. Given this disparity, we
ask that when determining whether to exclude essential habitat based
on an HCP, FWS makes a determination as to whether the HCP will
ensure recovery of the species, which for [Astragalus lentiginosus
var. coachellae*], which is limited by habitat, would mean
increasing the amount of habitat over time.''
*(The commenter refers to `flycatcher' here; we presume the
commenter intended to refer to Astragalus lentiginosus var.
coachellae.)
Response to Comment 24: We appreciate the commenter's concerns
regarding the long-term recovery of Astragalus lentiginosus var.
coachellae. However, the Secretary is vested with broad discretion
under section 4(b)(2) in evaluating whether the benefits of excluding
an area from critical habitat designation outweigh the benefits of
designating the area, so long as exclusion of an area will not result
in extinction of a species. We consider a number of factors in a
section 4(b)(2) analysis, including (but not limited to) the
protections afforded for a species and its essential habitat under an
HCP, whether there are conservation partnerships that would be
encouraged by designation of, or exclusion from, critical habitat,
particularly partnerships that include voluntary protections for listed
plant species in an HCP or other management plan, and the economic,
regulatory, and educational impacts of including a particular area as
critical habitat. Please see the Exclusions section for further
discussion.
We found the benefits of excluding lands that are covered under the
Coachella Valley MSHCP/NCCP to be greater than the benefits of
including these lands. Please see the Exclusions under Section 4(b)(2)
of the Act--Coachella Valley MSHCP/NCCP section above for a detailed
discussion. The Service views the partnerships we share with permittees
of the HCP and local landowners and managers as having greater
potential to provide for the recovery of the taxon than designation of
critical habitat in areas covered under the HCP, which could damage
these partnerships and thus reduce potential for recovery.
Comment 25: One commenter requested that we provide evidence that
designating critical habitat in addition to any HCPs or other
management plans would do any harm. The commenter asserts that real
evidence of harm from critical habitat designation, such as a landowner
abandoning a plan or even threatening to take such action, is lacking,
and that the Service does not have or require such data to support this
conclusion.
Response to Comment 25: We have received comment letters from some
of the Coachella Valley MSHCP/NCCP permittees, the Coachella Valley
Conservation Commission, the Agua Caliente Band of Cahuilla Indians,
the Morongo Band of Mission Indians, and the Bureau of Indian Affairs
in response to the proposed rule to designate critical habitat for
Astragalus lentiginosus var. coachellae, all stating that the
partnerships that we share with these entities will be damaged by
designation of critical habitat on tribal lands or lands covered under
the Coachella Valley MSHCP/NCCP. We consistently receive similar
comments from HCP stakeholders and other partners in response to rules
proposing critical habitat designation on lands covered by HCPs and
other areas where conservation of biological resources is carried out
in conjunction with the Service via partnerships. We believe these
communications are sufficient evidence of the potential to damage
partnerships and diminish conservation efforts of partners by adding a
real or perceived regulatory burden of critical habitat designation.
Comment 26: One commenter is concerned that we did not include all
of the extant locations where Astragalus lentiginosus var. coachellae
is documented to occur and a robust identification of the sand sources
required to sustain the taxon's habitat over time. The commenter
requested that we consider all of the areas identified in the five-year
review for A. l. var. coachellae to support the taxon or provide a
justification for why they were not included.
In particular, the commenter asked that we consider adding areas
where numerous plants have been documented to occur between Units 2, 3,
and 4 between Rancho Mirage and Thousand Palms and in Indian Wells near
Highway 111, and elsewhere.
Response to Comment 26: The commenter did not define ``robust
identification.'' We do indicate what areas surrounding the Coachella
Valley contribute sand required to sustain Astragalus lentiginosus var.
coachellae habitat in both the proposed revised critical habitat rule
and this final revised rule, and we believe that more detailed
discussion of these areas is outside of the scope of these rules. In
both the proposed and final revised rules, we have outlined our methods
and reasoning for not proposing all areas occupied by the taxon (see
Criteria Used To Identify Critical Habitat section above).
Comment 27: One commenter asked that we consider all sand source
areas identified in the 2004 critical habitat proposal as part of this
critical habitat designation or provide a justification for why they
are not included.
Response to Comment 27: We provided an explanation of the methods
and reasoning behind our decision not to propose the hills and
mountains where sediment is generated via water erosion (fluvial sand
source areas) in Units 1, 2, and 3 as critical habitat for Astragalus
lentiginosus var. coachellae in the Criteria Used To Identify Critical
Habitat section above, as well as in our response to peer reviewer
comment number 3.
Comment 28: One commenter expressed concern that, while the Agua
Caliente Band of Cahuilla Indians are continuing to implement the draft
HCP, there is no information on the adequacy of the draft HCP or the
permanence of the Tribe's commitment to maintain its provisions.
The commenter also stated that because the Morongo Band of Mission
Indians has not completed a management plan, there are no assured
protections or management actions in place, and the partnerships'
effectiveness is questionable.
The commenter goes on to assert that exclusion of these Tribal
lands from this critical habitat designation would set a precedent that
is unfair to Tribes that actually have plans in place that are either
HCPs or functional equivalents, and incentivize inaction rather than
encouraging Tribes to actually work with the Service on tangible
conservation benefits. Balancing in favor of exclusion of Tribal lands
from critical habitat designations appears to the commenter to be
politically
[[Page 10486]]
motivated rather than based on on-the-ground facts.
Response to Comment 28: In accordance with the Secretarial Order
3206, ``American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act'' (June 5, 1997); the
President's memorandum of April 29, 1994, ``Government-to-Government
Relations with Native American Tribal Governments'' (59 FR 22951);
Executive Order 13175; and the relevant provision of the Departmental
Manual of the Department of the Interior (512 DM 2), we believe that
fish, wildlife, and other natural resources on tribal lands are better
managed under tribal authorities, policies, and programs than through
Federal regulation wherever possible and practicable. Based on this
philosophy, we believe that, in most cases, designation of tribal
reservation lands as critical habitat provides very little additional
benefit to threatened and endangered species. Conversely, such
designation is often viewed by tribes as unwarranted and an unwanted
intrusion into tribal self-governance, thus compromising the
government-to-government relationship essential to achieving our mutual
goal of managing for healthy ecosystems upon which the viability of
threatened and endangered species populations depend.
The exclusion of Agua Caliente Band of Cahuilla Indians and Morongo
Band of Mission Indians reservation lands is likewise based on the
importance of the government-to-government relationship with these
Tribes, our conservation partnership with the Tribes, and their current
management of tribal lands, as described in Martin (2011, pp. 1-2),
Park (2011, pp. 1-11) and ACBCI (2010b).
Please see the Exclusions Under Section 4(b)(2) of the Act--Tribal
Lands section of this final rule for additional discussion.
Comment 29: One commenter expressed concern that we have not
considered whether nonparticipating agencies or special districts have
the potential to interfere with the Coachella Valley MSHCP/NCCP
permittees' ability to achieve the HCP's conservation goals and
objectives, and that we have not provided an analysis of potential
threats from noncovered activities to achieving the conservation goals
of the Coachella Valley MSHCP/NCCP. The commenter feels that a
legitimate balancing test must take these factors into account.
Response to Comment 29: Lands that are not under the jurisdiction
of the permittees of the Coachella Valley MSHCP/NCCP have not been
excluded from this critical habitat designation and are, therefore,
subject to the provisions of section 7 of the Act. We have not analyzed
the potential for interference of nonpermittee entities with the
implementation of the Coachella Valley MSHCP/NCCP because we believe
such issues, if they arise, can be anticipated and managed by
communicating and working with our partners in the Coachella Valley
area.
Comment 30: One commenter stated that permittees of the Coachella
Valley MSHCP/NCCP should be relieved of critical habitat obligations as
long as the plan is properly functioning, but that nonpermittees within
the plan area should obtain no such benefits. The commenter asserted
that giving nonparticipants a ``free ride'' is an incentive not to
participate in large-scale HCP/NCCPs.
Response to Comment 30: To our knowledge, we have not excluded any
nontribal lands not explicitly covered by the Coachella Valley MSHCP/
NCCP from this critical habitat designation.
Comments Regarding the Economic Analysis
Comment 31: One peer reviewer asserted that the economic impact
assessment under section 4(b)(2) of the Act must take into account the
large decline in land values that has occurred since 2005, especially
in desert regions of California.
Response to Comment 31: Presumably, the peer reviewer anticipated
that the DEA would estimate the costs of the designation in terms of
lost development opportunities, measured in terms of reduced land
values. In fact, the analysis takes a slightly different approach. As
described in Section 4.2 of the FEA, incremental project modifications
resulting from the designation are unlikely in most areas, with the
exception of unoccupied portions of Unit 3 in the City of Desert Hot
Springs. Because the City does not yet have an approved HCP, we assume
that, if development occurs in this area and a Federal nexus exists,
project modification costs would be attributable to the designation. As
a proxy for the cost of such project modifications, we use the per-
housing-unit mitigation fee currently required under the Coachella
Valley MSHCP/NCCP. This value, as of 2012, is $1,254 per unit in low-
density residential developments and $5,600 per acre of commercial and
industrial development. The MSHCP/NCCP mitigation fees, obtained
directly from the Coachella Valley Association of Governments,
represent the best available information regarding the unit cost of
efforts to protect the plant.
Comment 32: One commenter stated that in the event that the
Riverside County Flood Control and Water Conservation District flood
control systems are not excluded from the critical habitat designation
from Astragalus lentiginosus var. coachellae, the Service's economic
analysis of the revised critical habitat designation for A. l. var.
coachellae will need to evaluate the potential direct and indirect
adverse impacts to the existing Cabazon Channel, Chino Canyon Levee,
Whitewater River Levee, Mission Creek Channel, and Desert Hot Springs
Channel Line E facilities and surrounding areas that include but are
not limited to: (1) Increased costs associated with species surveys and
section 7 consultation process; (2) increased risk that the flood
control systems may fail to provide the full measure of protection to
the public as a result of lengthy section 7 consultation process and
implementation of any mitigation requirements (e.g., avoidance,
minimization, onsite/offsite compensatory, etc.) imposed through that
process; (3) increased costs (e.g., increased flood insurance rates,
etc.) imposed on the local community through the National Flood
Insurance Program as a result of not meeting FEMA requirements; (4)
potential damages to the communities that may result if critical
maintenance activities are delayed; (5) additional costs associated
with duplicate mitigation requirements; (6) potential conflicts between
mitigation requirements and the associated existing flood control
facilities; (7) the costs associated with amending the Coachella Valley
MSHCP/NCCP; and (8) the consequential costs if the final rule negates
the successful implementation of the Coachella Valley MSHCP/NCCP.
Response to Comment 32: The Secretary is exercising his discretion
to exclude all lands covered under the Coachella Valley MSHCP/NCCP,
including Riverside County Flood Control and Water Conservation
District lands, from this critical habitat designation (see Exclusions
Under Section 4(b)(2) of the Act--Coachella Valley MSHCP/NCCP section
above).
Comment 33: Four commenters expressed concern regarding potential
economic impacts the designation of critical habitat could have on wind
energy firms located within the critical habitat designation.
Response to Comment 33: Because the areas in question are occupied
by Astragalus lentiginosus var. coachellae and any project in these
areas with a Federal nexus would require consultation with the Service
under
[[Page 10487]]
section 7 of the Act to address potential impacts to the taxon, the
economic analysis for the critical habitat designation did not predict
project modification costs to wind energy interests due to the
designation of critical habitat, only the administrative costs of
adding adverse modification analyses to these future section 7
consultations. We, therefore, conclude that potential economic impacts
to these wind energy interests will be small.
Comment 34: One commenter stated that because the costs estimated
in the DEA are low, there is no basis for economic exclusion of any of
the areas proposed as critical habitat for Astragalus lentiginosus var.
coachellae.
Response to Comment 34: Based on the information presented in the
Economic Analysis, the Secretary is not exercising his discretion to
exclude any areas from this designation based on economic impacts (see
Exclusions Based on Economic Impacts section above for more detailed
discussion).
Comment 35: One commenter expressed appreciation for the Service's
clear separation of postdesignation baseline costs from the incremental
future costs of designation in the DEA.
Response to Comment 35: We thank the commenter for their review and
comments.
Comment 36: A comment provided on the DEA states that because the
majority of the proposed critical habitat falls within the plan area of
the Coachella Valley MSHCP/NCCP, section 7 consultation costs should be
significantly streamlined. The comment suggests that, as a result, the
DEA overestimates administrative impacts from the proposed revised
designation.
Response to Comment 36: The DEA relies on the best available
information on administrative costs, compiled from interviews with
Service staff, action agency staff, and private consultants. Although
consultation costs may be streamlined for projects covered by the
Coachella Valley MSHCP/NCCP that have a Federal nexus, each Federal
action still requires consultation with the Service if the action may
affect listed species or critical habitat. Therefore, to avoid
underestimating the potential impacts of the designation, the DEA
assumes the level of effort required for these consultations will be
similar to effort associated with consultations undertaken for
activities not covered by an HCP.
Comment 37: One commenter asserts that the DEA fails to provide
supporting data to justify the cost of section 7 consultations.
Response to Comment 37: As described in Exhibit 2-2 of the DEA, the
consultation cost model is based on data gathered from three Service
field offices (including a review of consultation records and
interviews with field office staff), telephone interviews with action
agency staff (for example, BLM, Forest Service, U.S. Army Corps), and
telephone interviews with private consultants who perform work in
support of permittees. In the case of Service and Federal agency
contacts, we determined the typical level of effort required to
complete several different types of consultations (hours or days of
time), as well as the typical General Schedule (GS) level of the staff
member performing this work. In the case of private consultants, we
interviewed representatives of firms in California and New England to
determine the typical cost charged to clients for these efforts (for
example, biological survey, preparation of materials to support a
Biological Assessment). The model is periodically updated with new
information received in the course of data collection efforts
supporting economic analyses and public comment on more recent critical
habitat rules. In addition, the GS rates are updated annually.
Comment 38: One commenter states that incremental costs associated
with the City of Desert Hot Springs are highly unlikely. This commenter
states that costs are estimated for the development of lands located
within the floodplain, which the City is unlikely to develop.
Additionally, the commenter suggests that consultation may be unlikely
because the City of Desert Hot Springs will soon be a permittee of the
Coachella Valley MSHCP/NCCP. Therefore, the commenter asserts that
future incremental costs are inflated.
Response to Comment 38: The DEA accounts for the uncertainty
associated with the potential for development within the floodplain by
excluding these costs from the low estimate and including them in the
high estimate. Our interview with City officials suggested that they
would prefer to avoid development within the floodplain. However,
because the City has no official restrictions preventing such
development, such development is possible. Development projections for
this area are based on Southern California Association of Governments
growth forecasts. Until the City of Desert Hot Springs becomes a
permittee of the Coachella Valley MSHCP/NCCP via a major amendment,
these costs are considered incremental to the baseline. Because this
amendment had not yet been finalized as of the time of the economic
analysis, incremental costs are estimated. In addition, section 7
consultation is still required for activities with a Federal nexus that
are not covered under the Coachella Valley MSHCP/NCCP and may affect
listed species or critical habitat, and, as a result, the potential for
incremental impacts will still exist after the City of Desert Hot
Springs becomes a permittee.
Comment 39: One commenter states that the low estimate of
administrative impacts, as described on Page 4-2 of the DEA, is not
clearly attributed.
Response to Comment 39: Section 4.8 of the DEA describes in detail
the methodology used to estimate incremental administrative costs. The
methodology involves projecting the consultation history from the past
18 years forward. In particular, Exhibit 4-5 presents the projected
number of consultations by economic activity and critical habitat unit.
This exhibit notes which projected consultations--only those occurring
on the Agua Caliente Reservation--are excluded from the low estimate.
All other consultations are included in both the low and high
estimates.
Comment 40: According to a comment submitted by the Agua Caliente
Band of Cahuilla Indians, the DEA incorrectly identifies the Tribal
Habitat Conservation Plan (THCP) as a draft plan.
Response to Comment 40: The Tribal Habitat Conservation Plan of the
Agua Caliente Band of Cahuilla Indians is considered a ``draft'' plan
because the Service has not issued an incidental take permit associated
with this document under section 10(a)(1)(B) of the Endangered Species
Act. Text has been added to the Final Economic Analysis (FEA) to
clarify this assertion. Additionally, the FEA notes that the Tribe
considers this plan a Tribal-approved, final document and implements it
as such for land-use planning on all Reservation lands, despite having
withdrawn the request for a section 10(a)(1)(B) incidental take permit.
Comment 41: According to a comment submitted by the Agua Caliente
Band of Cahuilla Indians, the DEA incorrectly states the size of the
Agua Caliente Indian Reservation.
Response to Comment 41: The acreage reported in the DEA is taken
from the following reference: Tiller, Veronica E. Velarde. ``Tiller's
Guide to Indian Country: Economic Profiles of American Indian
Reservations.'' Bow Arrow Publishing Company, 2005 (364). Based on
updated information provided by the Tribe in this comment, the FEA
corrects the acreage of the Reservation to 31,500 acres.
[[Page 10488]]
Comment 42: One comment submitted by the Agua Caliente Band of
Cahuilla Indians states that in paragraph 160, the DEA incorrectly
identifies the Tribe as the party that engaged in consultation with the
Service for three previous projects.
Response to Comment 42: The text has been revised in the FEA to
correctly indicate that the Bureau of Indian Affairs, and not the
Tribe, engaged directly in consultation with the Service for past
projects occurring on Agua Caliente Reservation land.
Comment 43: One commenter states that the DEA fails to include
consideration of benefits resulting from the designation of critical
habitat. In particular, this commenter suggests that the DEA fails to
quantify ancillary benefits including the protection and improvement of
water quality; preservation of natural habitat to benefit other
species; and prevention of development in flood-prone areas, despite
existing economic literature monetizing these benefits. This commenter
suggests that these benefits should be assessed and quantified where
possible or otherwise included in a detailed qualitative analysis.
Response to Comment 43: The primary purpose of this critical
habitat designation is to support the conservation of Astragalus
lentiginosus var. coachellae. As described in Chapter 5 of the DEA,
quantification and monetization of this conservation benefit requires
information on the incremental change in the probability of
conservation resulting from the designation. Such information is not
available, and, as a result, monetization of the primary benefit of
critical habitat designation is not possible.
Other ancillary benefits of the designation may include: Increased
residential property values adjacent to preserved habitat; increased
recreational opportunities; preservation of habitat for other species;
and improvements in water quality, among others. Although economic
literature does exist that monetizes similar benefits, these studies
are necessarily site-specific. For example, using benefits transfer
techniques to estimate changes in residential property value based on
the existing economic literature would require knowledge of the
characteristics of the specific lands preserved as a result of the
designation of critical habitat, including proximity to residential
properties and the amount of existing open space in the area. Without
knowing where lands will be preserved (for example, through mitigation
fees) as a result of this designation, it is impossible to estimate
such benefits. Similarly, quantifying benefits associated with improved
water quality would require information regarding baseline water
quality, hydrologic and chemical modeling to estimate changes in water
quality, and risk analysis to determine avoided human health risk based
on changes to water quality. These types of analyses are beyond the
scope of the DEA. As a result, benefits associated with the designation
of critical habitat are discussed qualitatively.
Comment 44: One commenter expresses concern that the designation of
critical habitat may impact routine maintenance and operations of the
Colorado River Aqueduct on Metropolitan Water District of Southern
California (MWD) lands. These activities may include aqueduct
inspection and cleaning, replacement and rebuilding of infrastructure,
and maintenance of patrol and access roads. Additionally, the comment
mentions an upcoming mine pit reclamation project on MWD lands that may
be affected by the designation of critical habitat.
Response to Comment 44: As of the time of publication of the DEA,
we were unable to confirm with MWD the types of activities ongoing or
planned for these lands. However, in information subsequently provided,
MWD states that routine maintenance and operations of the Colorado
River Aqueduct do not require the involvement of a Federal agency. As a
result, activities associated with the Colorado River Aqueduct are
unlikely to have a nexus for section 7 consultation. Incremental
impacts are therefore not anticipated to result from these activities.
The mine pit reclamation project may have a Federal nexus for
consultation through the U.S. Army Corps of Engineers Clean Water Act
section 404 permitting process. The FEA has been revised to incorporate
new information on MWD activities in these areas, as provided in the
public comment and the information received subsequent to the
submission of the DEA. Administrative impacts are estimated for these
MWD activities in the FEA.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
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
an 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 the rule will not
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 lentiginosus var. coachellae 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. 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
[[Page 10489]]
$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.,
residential, commercial, and industrial development; water management
and use; transportation activities; energy development; sand and gravel
mining; and Tribal activities). 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 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 lentiginosus var. coachellae. 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 lentiginosus var. coachellae and the designation of critical
habitat. The analysis is based on the estimated impacts associated with
the rulemaking as described in Chapters 1 through 4 and Appendix A of
the analysis and evaluates the potential for economic impacts related
to: (1) Residential, commercial, and industrial development; (2) water
management and use; (3) transportation activities; (4) energy
development; (5) sand and gravel mining; and (6) Tribal activities.
Estimated incremental impacts of this critical habitat designation
consist primarily of additional administrative cost of considering
adverse modification during section 7 consultation and incremental
project modification costs resulting from activities not covered under
the Coachella Valley MSHCP/NCCP. The Service and the action agency are
the only entities with direct compliance costs associated with this
critical habitat designation, although small entities may participate
in section 7 consultation as a third party. It is, therefore, possible
that the small entities may spend additional time considering critical
habitat during section 7 consultation for Astragalus lentiginosus var.
coachellae. The FEA indicates that the incremental impacts potentially
incurred by small entities are limited to development activities.
The FEA estimates annualized project modification costs of
approximately $52,000 in Unit 3, and annualized third party
administrative costs ranging from $156 to $263, depending on whether a
consultation is formal or informal and whether the project location is
considered occupied or unoccupied, distributed across all four units.
Because information on the number of projects or developers likely to
be affected is not available, the FEA assumes that a single developer
bears all costs associated with growth in proposed revised critical
habitat. Under this assumption, $52,260 in incremental costs would
accrue to one developer per year. Assuming the average small entity has
annual revenues of approximately $5.1 million, this annualized impact
represents approximately one percent of annual revenues. The assumption
that all costs accrue to one developer likely overstates the impact
significantly; thus, we estimate incremental impacts to small
developers of less than one percent of annual revenues.
The FEA also concludes that none of the governmental entities with
which the Service might consult on Astragalus lentiginosus var.
coachellae for water management and use, transportation, mining, energy
development, or Tribal activities meet the definitions of small as
defined by the Small Business Administration (SBA) (IEc 2012, p. A-4-A-
5); therefore, impacts to small governmental entities due to
transportation and habitat management activities are not anticipated.
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 Astragalus lentiginosus var. coachellae 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.
The economic analysis finds that none of these criteria are
relevant to this analysis. Thus, based on information in the economic
analysis, energy-related impacts associated with Astragalus
lentiginosus var. coachellae 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
et seq.), 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
[[Page 10490]]
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because it would not produce a Federal mandate
of $100 million or greater in any year; that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The FEA concludes incremental impacts may occur due to
administrative costs of section 7 consultations for development,
transportation, and flood control projects activities; however, these
are not expected to significantly affect small governments. Incremental
impacts stemming from various species conservation and development
control activities are expected to be borne by the Federal Government,
State agencies, local water and flood control districts, and wind
energy and mining companies that are not considered small governments.
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 E.O. 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we analyzed the potential takings implications of
designating critical habitat for Astragalus lentiginosus var.
coachellae in a takings implications assessment. As discussed above,
the designation of critical habitat affects only Federal actions.
Although private parties that receive Federal funding, assistance, or
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. The takings
implications assessment concludes that this designation of critical
habitat for Astragalus lentiginosus var. coachellae 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), this rule
does not have significant Federalism effects. A federalism impact
summary statement is not required. In keeping with Department of the
Interior and Department of Commerce policy, we requested information
from, and coordinated development of, this critical habitat designation
with appropriate State resource agencies in California. We did not
receive comments from State agencies. The designation of critical
habitat in areas currently occupied by Astragalus lentiginosus var.
coachellae may impose nominal additional regulatory restrictions to
those currently in place and, therefore, is expected to have little
incremental impact on State and local governments and their activities.
The designation may have some benefit to these governments in that the
areas that contain the physical or biological features essential to the
conservation of the 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 local governments in long-range planning (rather than having
them wait for case-by-case section 7 consultations 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 Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it 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 identifies the elements of physical or biological
features essential to the conservation of the Astragalus lentiginosus
var. coachellae within the designated areas to assist the public in
understanding the habitat needs of the species. The designated areas of
critical habitat are presented on maps, and the rule provides several
options for the interested public to obtain more detailed information,
if desired.
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
[[Page 10491]]
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 Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951), E.O. 13175, 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.
In the proposed revisions to critical habitat published in the
Federal Register on August 25, 2011 (76 FR 53224), we proposed
approximately 316 ac (128 ha) in Unit 1 within the boundary of the
Morongo Band of Mission Indians Reservation, and 580 ac (235 ha) in
Unit 2 within the boundary of the Agua Caliente Band of Cahuilla
Indians Reservation, as critical habitat for Astragalus lentiginosus
var. coachellae. We worked directly with the tribes to determine
economic and other burdens expected to result from critical habitat
designation on tribal lands, and as a result of information exchanged
and in consideration of impacts to our government-to-government
relationship with tribes and our current and future conservation
partnerships, the Secretary is exercising his discretion to exclude all
lands within tribal reservation boundaries meeting the definition of
critical habitat for Astragalus lentiginosus var. coachellae from this
final revised designation under section 4(b)(2) of the Act (see
Exclusions Under Section 4(b)(2) of the Act--Tribal Lands section
above).
References Cited
A complete list of all references cited is available on the
Internet at http://www.regulations.gov and upon request from the
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
Author(s)
The primary authors of this rulemaking are the staff members of the
Carlsbad Fish and Wildlife Office.
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; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.12(h) by revising the entry for ``Astragalus
lentiginosus var. coachellae'' under Flowering Plants in the List of
Endangered and Threatened Plants to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
[[Page 10492]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Astragalus lentiginosus var. Coachella Valley U.S.A. (CA)........ Fabaceae........... E 647 17.96(a) NA
coachellae. milk-vetch.
* * * * * * *
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.96(a) by revising the entry for ``Astragalus
lentiginosus var. coachellae (Coachella Valley milk-vetch)'' under
Family Fabaceae to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Fabaceae: Astragalus lentiginosus var. coachellae (Coachella
Valley milk-vetch)
(1) Critical habitat units are depicted for Riverside County, on
the maps below.
(2) Within these areas, the primary constituent element of the
physical or biological features essential to the conservation of
Astragalus lentiginosus var. coachellae consists of sand formations
associated with the sand transport system in Coachella Valley,
California. These sand formations have the following features:
(i) They are active sand dunes, stabilized or partially stabilized
sand dunes, active or stabilized sand fields (including hummocks
forming on leeward sides of shrubs), ephemeral sand fields or dunes,
and fluvial sand deposits on floodplain terraces of active washes.
(ii) They are found within the fluvial sand depositional areas, and
the aeolian sand source, transport, and depositional areas of the sand
transport system.
(iii) They comprise sand originating in the hills surrounding
Coachella Valley and alluvial deposits at the base of the Indio Hills,
which is moved into the valley by water (fluvial transport) and through
the valley by wind (aeolian transport).
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
March 15, 2013.
(4) Critical habitat map units. Data layers defining map units were
created using a base of U.S. Geological Survey 7.5' quadrangle maps.
Critical habitat units were then mapped using Universal Transverse
Mercator (UTM) zone 11, North American Datum (NAD) 1983 coordinates.
The maps in this entry, as modified by any accompanying regulatory
text, establish the boundaries of the critical habitat designation. The
coordinates or plot points or both on which each map is based are
available to the public at the Service's Internet site, http://www.fws.gov/carlsbad/GIS/CFWOGIS.html, http://www.regulations.gov at
Docket No. FWS-R8-ES-2011-0064, and at the field office responsible for
this designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
BILLING CODE 4310-55-P
(5) Note: Index map of four critical habitat units designated for
Astragalus lentiginosus var. coachellae follows:
[[Page 10493]]
[GRAPHIC] [TIFF OMITTED] TR13FE13.008
(6) Unit 1: San Gorgonio River/Snow Creek System.
(i) Note: Map of Unit 1 follows:
[[Page 10494]]
[GRAPHIC] [TIFF OMITTED] TR13FE13.009
(7) Unit 2: Whitewater River System.
(i) Note: Map of Unit 2 follows:
[[Page 10495]]
[GRAPHIC] [TIFF OMITTED] TR13FE13.010
(8) Unit 3: Mission Creek/Morongo Wash System.
(i) Note: Map of Unit 3 follows:
[[Page 10496]]
[GRAPHIC] [TIFF OMITTED] TR13FE13.011
(9) Unit 4: Thousand Palms System.
(i) Note: Map of Unit 4 follows:
[[Page 10497]]
[GRAPHIC] [TIFF OMITTED] TR13FE13.012
* * * * *
Dated: February 1, 2013.
Michael J. Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 2013-03109 Filed 2-12-13; 8:45 am]
BILLING CODE 4310-55-C