2001 Federal Register, 66 FR 27901; Centralized Library: U.S. Fish & Wildlife Service

[Federal Register: May 21, 2001 (Volume 66, Number 98)]
[Rules and Regulations]
[Page 27901-27908]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21my01-17]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF61

Endangered and Threatened Wildlife and Plants; Final Rule for
Endangered Status for Astragalus pycnostachyus var. lanosissimus
(Ventura marsh 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), determine
endangered status for Astragalus pycnostachyus var. lanosissimus
(Ventura marsh milk-vetch) pursuant to the Endangered Species Act (Act)
of 1973, as amended. Historically known from a three-county region in
coastal southern California, A. pycnostachyus var. lanosissimus was
believed extinct until its rediscovery in 1997. The only known extant
population of this recently rediscovered plant occurs in Ventura
County, California, on less than 1 acre of degraded dune habitat that
was previously used for disposal of petroleum wastes. The most
significant current threats to A. pycnostachyus var. lanosissimus are
direct destruction of this population from proposed soil remediation,
residential development, and associated activities. This taxon is also
threatened by unanticipated human-caused and natural events that could
eliminate the single remaining population. Competition from nonnative
invasive plant species is an additional threat. This action will extend
the Act's protection to this plant.

EFFECTIVE DATE: This rule is effective June 20, 2001.

ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours at the Ventura Fish and
Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road,
Suite B, Ventura, California 93003.

FOR FURTHER INFORMATION CONTACT: Rick Farris or Lois Grunwald, Ventura
Fish and Wildlife Office, at the address above (telephone 805/644-1766;
facsimile 805/644-3958).

SUPPLEMENTARY INFORMATION:

Background

Astragalus pycnostachyus var. lanosissimus (Ventura marsh milk-
vetch) was first described by Per Axel Rydberg (1929) as Phaca
lanosissima from an 1882 collection by S.B. and W.F. Parish made from
``La Bolsa,'' probably in what is now Orange County, California. The
combination A. pycnostachyus var. lanosissimus was assigned to this
taxon by Philip Munz and Jean McBurney in 1932 (Munz 1932).
Astragalus pycnostachyus var. lanosissimus is a herbaceous
perennial in the pea family (Fabaceae). It has a thick taproot and

multiple erect, reddish stems, 40 to 90 centimeters (cm) (16 to 36
inches (in)) tall, that emerge from the root crown. The pinnately
compound leaves are densely covered with silvery white hairs. The 27-39
leaflets are 5 to 20 millimeters (mm) (0.2 to 0.8 in) long. The
numerous greenish-white to cream colored flowers are in dense clusters
and are 7 to 10 mm (0.3 to 0.4 in) long. The calyx teeth are 1.2 to 1.5
mm (0.04 in) long. The nearly sessile, single-celled pod is 8 to 11 mm
(0.31 to 0.43 in) long (Barneby 1964). The blooming time has been
recorded as July to October (Barneby 1964); however, the one extant
population was observed in flower in June 1997. This variety is
distinguished from A. pycnostachyus var. pycnostachyus by the length of
calyx tube, calyx teeth, and peduncles. It is distinguished from other
local Astragalus species by its size, perennial habit, size and shape
of fruit, and flowering time.
The type locality is ``La Bolsa,'' where the plant was collected in
1882 by S.B. and W.F. Parish (Barneby 1964). Based on the labeling of
other specimens collected by the Parishes in 1881 and 1882, Barneby
(1964) suggested that this collection may have come from the Ballona
marshes in Los Angeles County. However, Critchfield (1978) believed
that ``La Bolsa'' could easily have referred to Bolsa Chica, a coastal
marsh system located to the south in what is now Orange County. He
noted that Orange County was not made a separate county from Los
Angeles until 1889, 7 years after the Parish's collection was made. In
the five decades following its discovery, Astragalus pycnostachyus var.
lanosissimus was collected from about four locations in Los Angeles and
Ventura counties, three of which are near one another. In Los Angeles
County it was collected from near Santa Monica in 1882, the Ballona
marshes just to the south in 1902, and ``Cienega'' in 1904, also likely
near the Ballona wetlands. In

[[Page 27902]]

Ventura County it was collected in 1901 and 1925 from Oxnard and in
1911 from Ventura, a city adjacent to Oxnard. By 1964, Barneby (1964)
believed that it had certainly been extirpated from Santa Monica
southward, noting that there was still the possibility it survived in
Ventura County (although he knew of no locations at that time). The
species was briefly rediscovered in 1967 by R. Chase, who collected a
single specimen growing by a roadside between the cities of Ventura and
Oxnard. Subsequent searches uncovered no other living plants at that
location, although some mowed remains discovered on McGrath State Beach
lands, across the road from the collection site, were believed to
belong to this taxon (information on herbarium label from specimen
collected by R.M. Chase, 1967). Floristic surveys and focused searches
conducted in the 1970s and 1980s at historic locations failed to locate
any A. pycnostachyus var. lanosissimus, and the plant was presumed
extinct (Isley 1986; Spellenberg 1993; Skinner and Pavlik 1994) until
June 12, 1997, when a population of the plant was rediscovered by U.S.
Fish and Wildlife Service (Service) biologist Kate Symonds, in a
degraded coastal dune system near Oxnard, California.
Almost nothing is known of the habitat requirements of Astragalus
pycnostachyus var. lanosissimus. All but two of the known collections
of this taxon were made prior to 1930. Specimen labels from these
collections and original published descriptions contain virtually no
habitat information. The related variety, Astragalus pycnostachyus var.
pycnostachyus, is found in or at the high edge of coastal saltmarshes
and seeps. The newly discovered population of A. pycnostachyus var.
lanosissimus occurs in a sparsely vegetated low area, at an elevation
of about 10 meters (30 feet), in a site previously used for disposal of
petroleum waste products (Impact Sciences, Inc. 1997). Dominant shrub
species at the site are Baccharis pilularis (coyote brush), Baccharis
salicifolia (mule fat), Salix lasiolepis (arroyo willow), and the
nonnative Myoporum laetum (myoporum) (Impact Sciences, Inc. 1997). The
population itself occurs with sparse vegetative cover provided
primarily by Baccharis pilularis, Baccharis salicifolia, a nonnative
Carpobrotus sp. (seafig), and a nonnative annual grass, Bromus
madritensis ssp. rubens (red brome). Soils are reported to be loam-silt
loams (Impact Sciences, Inc. 1997). Soils were likely transported from
other locations as a cap for the disposal site once it was closed. The
Service is not aware of records on the origin of the soil used to cap
the waste disposal site; however, because of the costs of transport,
the soil source is likely of local origin.
The population of Astragalus pycnostachyus var. lanosissimus
consisted of about 374 plants total in 1997, of which 260 were small
plants, thought to have germinated in the last year. Fewer than 65
plants in the population produced fruit in 1997 (Impact Sciences, Inc.
1997). The plants are growing in an area of less than 1 acre, with one
outlying plant located 10 to 20 meters (30-60 feet) from the main group
in 1997 (D. Steeck, Service, pers. obs. 1997). In 1998, surveys
revealed 192 plants. In 1999, Service efforts went into placing
hardware cloth cages around a sample of plants. This experimental
caging was initiated due to severe herbivory, apparently by small
mammals. An estimate of between 30 and 40 plants produced flowers in
1999, believed to be fewer than half of those blooming in 1998 (D.
Steeck in litt. 1999).
The land on which the only known population of Astragalus
pycnostachyus var. lanosissimus grows is privately owned and a project
to decontaminate the soils and construct a housing development on the
site has been proposed (Impact Sciences, Inc. 1998). Limited efforts to
assist with the conservation of the species have been initiated by the
project proponent, the Service, the State, and other cooperators. The
project proponent has successfully grown plants in a remote greenhouse
facility. Several plants were excavated from the natural population and
potted, and several plants were started from seed gathered from the
natural population. In addition, we cooperated with the California
Department of Fish and Game in making conservation seed collections
from the site. This seed was divided into a seed storage collection and
a seed bulking project at the Rancho Santa Ana Botanic Gardens.

Previous Federal Action

Federal actions on this taxon began as a result of section 12 of
the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.)
(Act), which directed the Secretary of the Smithsonian Institution to
prepare a report on those plants considered to be endangered,
threatened, or extinct in the United States. This report (House
Document No. 94-51) was presented to Congress on January 9, 1975, and
Astragalus pycnostachyus var. lanosissimus was included on List C,
among those taxa believed possibly extinct in the wild. The Service
published a notice in the July 1, 1975, Federal Register (40 FR 27823)
of its acceptance of the report as a petition within the context of
section 4(c)(2) (petition provisions are now found in section 4(b)(3))
of the Act and its intention to review the status of the plant taxa
named therein.
On June 16, 1976, the Service published a proposed rule in the
Federal Register (41 FR 24523) to determine approximately 1,700
vascular plant species to be endangered species pursuant to section 4
of the Act. This list, which included Astragalus pycnostachyus var.
lanosissimus, was assembled on the basis of comments and data received
by the Smithsonian Institution and the Service in response to House
Document No. 94-51 and the July 1, 1975, Federal Register publication.
General comments received in relation to the 1976 proposal were
summarized in an April 26, 1978, Federal Register publication (43 FR
17909). In 1978, amendments to the Endangered Species Act required that
all proposals more than 2 years old be withdrawn. A 1-year grace period
was given to those proposals already more than 2 years old. In a
December 10, 1979, notice (44 FR 70796), the Service withdrew the
portion of the June 16, 1976, proposal that had not been made final,
along with four other proposals that had expired. A. pycnostachyus var.
lanosissimus was included in that withdrawal notice.
We published an updated candidate notice of review for plants on
December 15, 1980 (45 FR 82480). This notice included Astragalus
pycnostachyus var. lanosissimus in a list of category 1 candidate
species that were possibly extinct in the wild. These category 1
candidates would have been given high priority for listing if extant
populations were confirmed.
The Service maintained Astragalus pycnostachyus var. lanosissimus
as a category 1 candidate in subsequent notices published on November
28, 1983 (48 FR 53640), September 27, 1985 (50 FR 39526), and February
21, 1990 (55 FR 6184). The Service published a notice (58 FR 51144) on
September 30, 1993, in which taxa whose existence in the wild was in
doubt, including A. pycnostachyus var. lanosissimus, were moved to
Category 2. On February 28, 1996, we published a Notice of Review in
the Federal Register (61 FR 7596) that discontinued the designation of
category 2 species as candidates, including those taxa thought to be
extinct. Thus, A. pycnostachyus var. lanosissimus was excluded from
this and subsequent notices of review. In

[[Page 27903]]

1997, A. pycnostachyus var. lanosissimus was rediscovered and a review
of the taxon's status indicated that a proposed rule was warranted.
We published a proposed rule to list Astragalus pycnostachyus var.
lanosissimus as endangered in the Federal Register on May 25, 1999 (64
FR 28136). We have updated this rule to reflect any changes in
information concerning distribution, status, and threats since the
publication of the proposed rule.

Summary of Comments and Recommendations

In the May 25, 1999, proposed rule (64 FR 28136), we requested
interested parties to submit factual reports or information that might
contribute to development of a final rule. We contacted appropriate
Federal agencies, State agencies, county and city governments,
scientific organizations, and other interested parties and requested
information and comments. We published a newspaper notice inviting
public comment in the Los Angeles Times on June 3, 1999.
During the comment period we received comments from 4 individuals,
agencies, or group representatives concerning the proposed rule. Two
commenters supported the proposal, one was neutral, and one was opposed
to the proposal. Comments provided additional information that, along
with other clarifications, has been incorporated into the
``Background'' or ``Summary of Factors'' sections of this final rule.
Opposing comments and our responses are summarized as follows:
Comment 1: The proposed rule failed to meet any listing criteria as
defined by the Act.
Response 1: We disagree. The arguments presented in the Summary of
Factors Affecting the Species section of the rule have been supported
by the peer review process as well as our internal legal and biological
reviews for compliance with the Act.
Comment 2: The proposed rule utilized outdated and incomplete data,
and failed to include information about the horticultural experiments
conducted in central California.
Response 2: The data used in determining the status of Astragalus
pycnostachyus var. lanosissimus was current and complete at the time
the proposed rule was written. Experimental horticultural activities
involving the removal of some plants and seeds from the natural
population and their propagation in a greenhouse facility have been
initiated, and we believe that such activities may prove to be useful
in conserving the plant species. However, these initial experiments
have shown limited success, and the ability to maintain populations
necessary for the recovery of A. pycnostachyus var. lanosissimus has
not been demonstrated.
Comment 3: There are no additional benefits for the species by
listing it.
Response 3: Federal listing will provide additional protection for
the species through Federal regulations and recovery efforts.
Additional protection will potentially be provided through the
consultation process for projects which may affect the species that are
funded, permitted, or carried out by a Federal agency as required by
section 7 of the Act. In addition, Federal listing of a species
generally provides for recognition and additional funding, by our
agency as well as others, for the conservation and recovery of the
species. Although our recovery planning process typically occurs after
the species has been federally listed, the State listing of this
species has served to advance the process of identifying appropriate
recovery actions. We currently do not know what population size and
habitat areas are needed to support the continued existence of this
species. However, specific recovery objectives and criteria to delist
the species in the future, including targets for population/habitat
sizes, will be developed during the formal recovery planning process.
This process will involve species experts, scientists, and interested
members of the public, in accordance with the interagency policy on
recovery plans under the Act, published on July 1, 1994 (59 FR 34272).

Peer Review

In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited the expert opinions of three peer reviewers
regarding pertinent scientific or commercial data and assumptions
relating to population status and biological and ecological information
for Astragalus pycnostachyus var. lanosissimus. Only one reviewer
responded. This reviewer provided supporting information for the
listing of the species and described the information included in the
rule as factually correct to the best of his knowledge.

Summary of Factors Affecting the Species

Section 4 of the Endangered Species Act and regulations (50 CFR
part 424) promulgated to implement the listing provisions of the Act
set forth the procedures for adding species to the Federal lists. A
species may be determined to be an endangered or threatened species due
to one or more of the five factors described in section 4(a)(1). These
factors and their application to Astragalus pycnostachyus var.
lanosissimus are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range

Astragalus pycnostachyus var. lanosissimus is believed to have been
extirpated from all but one of the general areas from which it has been
collected. In Los Angeles County, this taxon was collected in the late
1800s and early 1900s from Santa Monica, Ballona Marsh, and ``Cienega''
(probably near Ballona Marsh). These coastal areas are now urbanized
within the expansive Los Angeles metropolitan area. About 90 percent of
the Ballona wetlands, once encompassing almost 2000 acres, have been
drained, dredged, and developed into the urban areas of Marina del Rey
and Venice (Critchfield 1978; Friends of Ballona Wetlands 1998).
Ballona Creek, the primary freshwater source for the wetland, had been
straightened, dredged, and channelized by 1940 (Friesen, et al. 1981).
Despite periodic surveys of what remains at the Ballona wetlands, A.
pycnostachyus var. lanosissimus has not been collected there since the
early 1900s (Gustafson 1981; herbarium labels from collections by H. P.
Chandler and by E. Braunton, 1902, housed at U.C. Berkeley Herbaria).
Barneby (1964) believed that A. pycnostachyus var. lanosissimus was
extirpated from all areas south of Santa Monica by the mid-1960s. In
1987, botanists searched for A. pycnostachyus var. lanosissimus at
previous collection locations throughout its range in coastal habitats,
including Bolsa Chica in Orange County and on public lands around
Oxnard in Ventura County, without success (F. Roberts, Service, in.
litt. 1987; R. Burgess, CNPS, in. litt. 1987; T. Thomas, Service, pers.
comm. 1997). Point Mugu Naval Air Weapons Station, in southern Ventura
County, may have potential habitat. Detailed surveys have not been
conducted there; however, A. pycnostachyus var. lanosissimus was not
found during cursory surveys of the base, and this taxon has never been
collected there.
The single known population of Astragalus pycnostachyus var.
lanosissimus occurs near the city of Oxnard, in a degraded backdune
community. From 1955 to 1981 the land on which it occurs was used as a
disposal site for oil field wastes (Impact Sciences, Inc. 1998). In
1998, the City of Oxnard published a Final Environmental Impact Report
(FEIR) for

[[Page 27904]]

development of this site (Impact Sciences, Inc. 1998). The proposal for
the site includes remediation of soils contaminated with hydrocarbons,
followed by construction of 364 homes and a 6-acre lake on a total of
91 acres, including the land on which A. pycnostachyus var.
lanosissimus grows. The proposed soil remediation would involve
excavation and stockpiling of the soils, followed by soil treatment and
redistribution of the soils over the site (Impact Sciences, Inc. 1998),
destroying the A. pycnostachyus var. lanosissimus population that was
identified on the site late in the planning process. In order to
mitigate for this loss, the project included provisions for seed
collection and horticultural propagation, and transplantation of
greenhouse seedlings and plants collected from the wild to off-site
locations.
The proposed project, as described in the FEIR, would adversely
affect the only known population of A. pycnostachyus var. lanosissimus,
resulting in the likely extinction of this taxon in the wild. On July
27, 1999, the California Department of Fish and Game (CDFG) signed a
Memorandum of Understanding (MOU) with the project proponent to
establish a permanent rare plant preserve on site and provide for
experimental off-site mitigation (see Appendix E, CDFG 2000). The
intent of the MOU was to increase protections to the milk-vetch beyond
that in the original project description. However, implementing the MOU
would still result in intensive habitat disturbance during soil
remediation, up to the edge of the extant stand of A. pycnostachyus
var. lanosissimus. Under the MOU, when the project is complete there
will be a 5-acre preserve surrounded by urban land use.
The small size of the preserve and its proximity to future urban
and suburban uses makes it subject to the effects of nonnative,
invasive plant and animal species, increased water supply due to
suburban irrigation runoff, and chemicals such as herbicides,
pesticides, and fertilizers (see Conservation Biology Institute 2000,
CDFG 2000 and references therein). Independently or in combinations,
these factors present difficult management challenges which, if not
adequately addressed, could lead to the elimination of A. pycnostachyus
var. lanosissimus from the site. Nonnative plant and animal species are
competitors and predators, respectively, that can directly reduce
survival of native plants, and they can also upset the invertebrate
(pollinator) and vascular plant associations upon which native plants
depend (Conservation Biology Institute 2000). The limited information
available about possible specific effects of competition and predation
on the Ventura marsh milk-vetch is described in CDFG (2000). While the
life-history requirements of the Ventura marsh milk-vetch are not well
understood, any factor that substantially alters the hydrology of the
site, such as increases or decreases in urban/suburban runoff, is
likely to make the site unsuitable for this wetland species (see the
discussion of hydrology and small preserves in Conservation Biology
Institute (2000)). Likewise, increased levels of chemicals arriving via
runoff or drift can be expected in small preserves and can harm native
species. Specific predictions about the effects of chemicals such as
herbicides and pesticides on the proposed milk-vetch preserve would be
speculative at this point, but given the proximity of the preserve to
future suburban and urban uses, increases in pesticides or herbicides
can be expected. These increases could harm the milk-vetch directly, or
alter the pollinator or plant associations upon which it depends.
Fuel management is also a concern for small preserves in urban or
suburban areas; the fire hazard at the wildland-urban interface is
receiving national and local attention (Federal Fire Policy 2001,
Ventura County 2001). In this part of California much of the native and
some of the nonnative vegetation is flammable. Currently the local fire
department requires 100 feet of vegetation modification for fire safety
(Ventura County 2001). If the proposed development design required that
100 feet of fuel modification was necessary in the preserve, it would
reduce the size of the core preserve to 1.9 acres. Finally, attempts to
grow this species elsewhere in the wild have failed, or require
constant intervention (Mary Meyer, March 2000 In litt.; Wayne Ferren,
August 2000 In litt.). Thus, the preserve, as designed, does not
adequately address the biological needs of the species, relies on
unproven management measures, and will not insure protection of the
site.

B. Overuse for Commercial, Recreational, Scientific, or Educational
Purposes

Overutilization is not known to be a problem for Astragalus
pycnostachyus var. lanosissimus at present. Soon after this taxon was
discovered, the project proponent installed a fence around the
population, which appears to have been effective in minimizing
unauthorized visitation.

C. Disease or Predation

A sooty fungus was found on the leaves of Astragalus pycnostachyus
var. lanosissimus in late summer, 1997, as leaves began to senesce and
the plants entered a period of dormancy (Impact Sciences, Inc. 1997; T.
Yamashita, Sunburst Plant Disease Clinic, pers. comm. 1998). The
effects of the fungus on the population are not known, but it is
possible that the fungus attacks senescing leaves in great number only
at the end of the growing season. The plants appeared robust when in
flower in June 1997, matured seed by October 1997, and were regrowing
in March 1998, after a period of dormancy, without obvious signs of the
fungus (D. Steeck, Service, pers. obs. 1997, 1998, 1999).
The seeds of Astragalus pycnostachyus var. lanosissimus in 1997
were heavily infested with seed beetles (Bruchidae: Coleoptera). In a
seed collection made for conservation purposes, the Service found that
while most fruits in 1997 partially developed at least 4 seeds, seed
predation reduced the average number of undamaged seeds to only 1.8 per
fruit (D. Steeck, Service, and M. Meyer, CDFG, unpublished data).
Apparently heavy seed predation by seed beetles and weevils has been
reported among other members of the genus Astragalus (Platt et al.
1974; Lesica 1995). The effects of seed predation on the population and
its variability from year to year are not known at this time.
The introduced nonnative milk snail (Otala lactea) was observed
causing damage to the foliage of Astragalus pycnostachyus var.
lanosissimus in 1998 and 1999 concurrent with a dramatic decline in
seedling plants (D. Steeck, Service pers. comm. 1999).
Severely pruned plants were observed in 1999, which was attributed
to small mammal herbivory (D. Steeck field notes 1999).

D. The Inadequacy of Existing Regulatory Mechanisms

The California Fish and Game Commission listed Astragalus
pycnostachyus var. lanosissimus as endangered under the Native Plant
Protection Act (NPPA) (chapter 1.5 sec. 1900 et seq. of the California
Fish and Game Code) and the California Endangered Species Act (CESA)
(chapter 1.5 sec. 2050 et seq.) on April 6, 2000. California Senate
Bill 879, passed in 1997 and effective January 1, 1998, requires
individuals to obtain a section 2081(b) permit from CDFG to take a
listed species incidental to otherwise lawful activities, and requires

[[Page 27905]]

that all impacts be fully mitigated and all measures be capable of
successful implementation. However, past attempts to mitigate impacts
to rare plant populations have often failed (Howald 1993), and it is
unclear how well these requirements will provide for the long-term
conservation of State-listed plants.
The California Environmental Quality Act (CEQA) requires a full
public disclosure of the potential environmental impacts of proposed
projects. The public agency with primary authority or jurisdiction over
the project is designated as the lead agency, and is responsible for
conducting a review of the project and consulting with the other
agencies concerned with the resources affected by the project. Section
15065 of the CEQA Guidelines requires a finding of significance if a
project has the potential to ``reduce the number or restrict the range
of a rare or endangered plant or animal.'' Species that can be shown to
meet the criteria for State listing, such as Astragalus pycnostachyus
var. lanosissimus, are considered under CEQA (CEQA Section 15380). Once
significant effects are identified, the lead agency must require
mitigation for effects through changes in the project unless the agency
decides that overriding social or economic considerations make
mitigation infeasible. In the latter case, projects may be approved
that cause significant environmental damage, such as destruction of
endangered species. Protection of listed species through CEQA,
therefore, is ultimately left to the discretion of the agency involved.
The Coastal Zone Management Act of 1972 is a Federal statute that
allowed for the establishment of the California Coastal Act (CCA) of
1976. CCA established a coastal zone. In Ventura County, the site of
the only known extant population of Astragalus pycnostachyus var.
lanosissimus occurs in the California Coastal Zone (Impact Sciences,
Inc. 1998). As required by CCA, Ventura County has developed a Coastal
Land Use Plan. It currently designates the area occupied by A.
pycnostachyus var. lanosissimus as Open Space, and amendments of the
Coastal Land Use Plan will be required for approval of a residential
development on this property. Land use decisions made by local agencies
in the Coastal Zone are appealable to the California Coastal
Commission. Although the Coastal Zone designation and CEQA require that
unique biological resources, such as A. pycnostachyus var.
lanosissimus, be considered in the planning process, any protection
offered by these regulatory mechanisms is ultimately at the discretion
of the local and State agencies involved and, therefore, does not
assure protection for, or preclude the need to list, this taxon.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Astragalus pycnostachyus var. lanosissimus is threatened with
extinction from unanticipated human activities and natural events by
virtue of the very limited number of individuals in, and the small area
occupied by, the only known extant population. A wildfire in the summer
before seeds have matured, a plane crash (the taxon is under the
extended center flight line of the Oxnard airport and a crash occurred
on the site in 1995 (Murphy in litt. 1997), and other natural or
unanticipated human-caused events could eliminate the existing
population and result in the extinction of this taxon from the wild.
The single known population of this taxon is also threatened by
competition with nonnative plant species. Cortaderia selloana (pampas
grass), Carpobrotus sp., and Bromus madritensis ssp. rubens are
invasive nonnative plant species that occur at the site (Impact
Sciences, Inc. 1997). Carpobrotus sp. in particular, are competitive,
succulent species with the potential to cover vast areas in dense
clonal mats. Bromus madritensis ssp. rubens grew in high densities
around some mature individuals of Astragalus pycnostachyus var.
lanosissimus in 1998, and seedlings were germinating among patches of
Carpobrotus and Bromus in 1998 (D. Steeck, pers. obs. 1998). Seedling
survival rates in these areas have not yet been determined. As
explained under factor A, managing nonnative plants and animals and
other threats to native species is difficult in small preserves
(Conservation Biology Institute 2000, CDFG 2000). Carpobrotus and
Bromus can compete directly with the milk-vetch and may also alter the
microenvironment so seriously that they alter the invertebrate
(pollinator) and vascular plant associations upon which the milk-vetch
depends (see discussion of nonnative predators and competitors on the
site in CDFG (2000)). In addition, the life history and biology of
Astragalus pycnostachyus var. lanosissimus is not well known, owing to
its only recent rediscovery. It will be many years before we understand
what factors influence seedling germination and the production of
viable seeds in the wild.
Astragalus pycnostachyus var. lanosissimus is also threatened by
activities in occupied habitat associated with planning for land use at
the site. For example, the project proponents have conducted at least
two excavations in the population to examine the soils in which the
plants occur (D. Steeck, pers. obs. 1997) and to examine the root
structure of an adult plant (R. Smith, R.A. Smith and Associates, pers.
comm. 1998). In April 1998 the project proponents dug up and
transported three plants out of Ventura County to a greenhouse in
central California in a preliminary attempt at transplanting them. In
addition to the direct removal of reproducing individuals from the
population, exploratory excavations within the population can
potentially alter the hydrology of the micro-site where the plants are
found, reduce seedling establishment by burying or removing seeds and
seedlings from the soil, and injure plant roots.
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by this taxon in determining this final rule.
Residential and commercial development have resulted in the loss and
alteration of this taxon's coastal habitat and are the most likely
cause of population extirpation historically. Loss and alteration of
habitat from soil remediation activities and proposed residential
development threaten the only known extant population. Other threats
include competition from nonnative plant species and unanticipated
human activities and natural events which could diminish or destroy the
very small extant population. Existing regulatory mechanisms are
inadequate to protect this taxon. Because Astragalus pycnostachyus var.
lanosissimus is in danger of extinction throughout all or a significant
portion of its range, it fits the Act's definition of endangered.

Critical Habitat

Critical habitat is defined in section 3 of the Act as--(i) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
consideration or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. ``Conservation'' means the use of all methods and
procedures needed to bring the species to the point at which listing
under the Act is no longer necessary.

[[Page 27906]]

Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, we designate critical habitat at the time the species
is determined to be endangered or threatened. Our regulations (50 CFR
424.12(a)(1)) state that designation of critical habitat is not prudent
when one or both of the following situations exist--(1) the species is
threatened by taking or other activity and the identification of
critical habitat can be expected to increase the degree of threat to
the species or (2) such designation of critical habitat would not be
beneficial to the species.
In the proposed rule, we indicated that designation of critical
habitat for Astragalus pycnostachyus var. lanosissimus was not prudent
because we believed that designation of critical habitat would not
provide any additional benefit beyond that provided through listing as
endangered. We came to that conclusion because the plant occurs only on
private land with no known Federal nexus, because the designation of
critical habitat would not invoke the protection afforded under section
9, and because, in this case, with no permit requirement, section 10 is
not applicable. In addition, the private landowner and all appropriate
non-Federal agencies were aware of the Federal status of this species
and its location on private land.
After further consideration, and in light of recent court rulings
regarding critical habitat designations, we believe that Astragalus
pycnostachyus var. lanosissimus may benefit from critical habitat
designation. For example, critical habitat designation may educate and
inform the public and help focus conservation efforts through future
Federal, State, and local planning efforts and the public, by
identifying the habitat needs and crucial areas for Astragalus
pycnostachyus var. lanosissimus. Therefore, we now believe that
critical habitat designation may be prudent for Astragalus
pycnostachyus var. lanosissimus.
Critical habitat is not determinable (50 CFR 424.12(a)(2)) when one
or both of the following situations exist--(1) Information sufficient
to perform required analyses of the impacts of the designation is
lacking, or (2) the biological needs of the species are not
sufficiently well known to permit identification of an area as critical
habitat. Almost nothing is known of the habitat requirements of
Astragalus pycnostachyus var. lanosissimus. All but two of the known
collections of this taxon were made prior to 1930. Specimen labels from
these collections and original published descriptions contain virtually
no habitat information. The newly discovered population of A.
pycnostachyus var. lanosissimus occurs at a site previously used for
disposal of petroleum waste products (Impact Sciences, Inc. 1997), on
soils that were likely transported from other locations as a cap for
the disposal site once it was closed. The original source of these
soils is not known. As a result of this lack of information about the
habitat needs of the species, we believe that the biological needs of
the species are not sufficiently well known to permit designation of an
area as critical habitat, and find that critical habitat for A.
pycnostachyus var. lanosissimus is not determinable at this time.
Our regulations (50 CFR 424.17(b)(2)) require that, when we make a
``not determinable'' finding, we designate critical habitat within two
years of the publication date of the original proposed listing rule,
unless the designation is found to be not prudent. However, our listing
budget is currently insufficient to allow us to immediately complete
all of the listing actions required by the Act. Listing the Ventura
marsh milk-vetch without designation of critical habitat will allow us
to concentrate our limited resources on higher-priority critical
habitat and other listing actions, while allowing us to invoke
protections needed for the conservation of this species without further
delay. We will make a determination regarding critical habitat in the
future at such time when our available resources and priorities allow.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened under the Endangered Species Act include recognition,
recovery actions, requirements for Federal protection, and prohibitions
against certain activities. Recognition through listing encourages
public awareness and results in conservation actions by Federal, State,
and local agencies, private organizations, and individuals. The Act
provides for possible land acquisition from willing sellers and
cooperation with the States and requires that recovery actions be
carried out for all listed species. The protection required of Federal
agencies and the prohibitions against certain activities involving
listed plants are discussed, in part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any action that is likely to jeopardize the
continued existence of a species proposed for listing or result in
destruction or adverse modification of proposed critical habitat. If a
species is listed subsequently, section 7(a)(2) of the Act requires
Federal agencies to ensure that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of the
species or destroy or adversely modify its critical habitat. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into formal consultation with the
Service. The single known extant population of Astragalus pycnostachyus
var. lanosissimus occurs on privately owned land. While currently there
are no direct Federal authorizations needed for remediation of the
contaminated soils of the site, Federal involvement could potentially
arise from this situation in the future.
The listing of Astragalus pycnostachyus var. lanosissimus as
endangered will provide for the development of a recovery plan for this
taxon. Such a plan will bring together Federal, State, and local
efforts for the conservation of this taxon. The plan will establish a
framework for agencies to coordinate activities and to cooperate with
each other in conservation efforts. The plan will set recovery
priorities and describe site-specific management actions necessary to
achieve the conservation of this taxon.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered
plants. With respect to Astragalus pycnostachyus var. lanosissimus, all
prohibitions of section 9(a)(2) of the Act, implemented by 50 CFR 17.1
for endangered plants, apply. These prohibitions, in part, make it
illegal for any person subject to the jurisdiction of the United States
to import or export, transport in interstate or foreign commerce in the
course of a commercial activity, sell or offer for sale in interstate
or foreign commerce, or remove and reduce the species to possession
from areas under Federal jurisdiction. In addition, for plants listed
as endangered, the Act prohibits the malicious damage or destruction on
areas under Federal jurisdiction and the removal, cutting, digging up,
or damaging or destroying of such endangered plants in knowing
violation

[[Page 27907]]

of any State law or regulation, including State criminal trespass law.
Certain exceptions to the prohibitions apply to agents of the Service
and State conservation agencies.
The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of
permits to carry out otherwise prohibited activities involving
endangered plant taxa under certain circumstances. Such permits are
available for scientific purposes and to enhance the propagation or
survival of the species. Requests for copies of the regulations on
listed species and inquiries about prohibitions and permits may be
addressed to the U.S. Fish and Wildlife Service, Endangered Species
Permits, 911 NE 11th Avenue, Portland, Oregon 97232-4181 (503/231-2063,
facsimile 503/231-6243).
It is the policy of the Service, published in the Federal Register
on July 1, 1994 (59 FR 34272), to identify to the maximum extent
practicable at the time a species is listed those activities that would
or would not be likely to constitute a violation of section 9 of the
Act. The intent of this policy is to increase public awareness of the
effect of the listing on proposed and ongoing activities within the
taxon's range. Astragalus pycnostachyus var. lanosissimus is not
located on areas currently under Federal jurisdiction. Collection,
damage, or destruction of this species on Federal lands is prohibited
(although in appropriate cases a Federal endangered species permit may
be issued to allow collection for scientific or recovery purposes).
Such activities on areas not under Federal jurisdiction constitutes a
violation of section 9 if conducted in knowing violation of State law
or regulations, or in violation of State criminal trespass law.
Questions regarding whether specific activities would constitute a
violation of section 9 should be directed to the Field Supervisor of
the Service's Ventura Fish and Wildlife Office (see ADDRESSES section).

National Environmental Policy Act

The Fish and Wildlife Service has determined that Environmental
Assessments, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with regulations adopted pursuant to section 4(a) of the Endangered
Species Act of 1973, as amended. A notice outlining the Service's
reasons for this determination was published in the Federal Register on
October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

This rule does not contain any new information collection
requirements for which the Office of Management and Budget (OMB)
approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is
required. Any information collection related to the rule pertaining to
permits for endangered and threatened species has OMB approval and is
assigned clearance number 1018-0094. This rule does not alter that
information collection requirement. For additional information
concerning permits and associated requirements for threatened species,
see 50 CFR 17.32.

References Cited

A complete list of all references cited herein is available upon
request from the Ventura Fish and Wildlife Office (see ADDRESSES
section).

Author

The primary authors of this notice are Diane Steeck and Tim Thomas,
U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office (see
ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
record keeping requirements, Transportation.

Regulation Promulgation

Accordingly, the Service hereby amends part 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as set forth
below:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Section 17.12(h) is amended by adding the following, in
alphabetical order under the families indicated, to the List of
Endangered and Threatened Plants to read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family Status When Critical Special
Scientific name Common name listed habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants

* * * * * * *
Astragalus pycnostachyus var. Ventura marsh milk- U.S.A. (CA)........ Fabaceae--Pea...... E 708 NA NA
lanosissimus. vetch.

* * * * * * *
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[[Page 27908]]

Dated: May 14, 2001.
Marshall P. Jones, Jr.,
Acting Director, Fish and Wildlife Service.
[FR Doc. 01-12663 Filed 5-18-01; 8:45 am]
BILLING CODE 4310-55-P