[Federal Register: June 4, 2004 (Volume 69, Number 108)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for Astragalus lentiginosus var.
piscinensis (Fish Slough Milk-vetch)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat pursuant to the Endangered Species Act of
1973, as amended (Act), for the federally threatened Astragalus
lentiginosus var. piscinensis (Fish Slough milk-vetch). We propose to
designate approximately 8,490 acres (ac) (3,435 hectares (ha)) of land
in Mono and Inyo Counties, California.
We hereby solicit data and comments from the public on all aspects
of this proposal, including data on economic and other effects of the
designation. We may revise this proposal prior to final designation to
incorporate or address new information received during public comment
DATES: We will accept comments until August 3, 2004. Public hearing
requests must be received by July 19, 2004.
ADDRESSES: If you wish to comment, you may submit your comments and
materials concerning this proposal by any one of several methods:
1. You may send written comments and information to the Field
Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife
Service, 2493 Portola Road, Suite B, Ventura, CA 93003.
2. You may send your comments by electronic mail (e-mail) to
firstname.lastname@example.org. For directions on how to submit electronic
filing of comments, see the ``Public Comments Solicited'' section below
for file format and other information about electronic filing.
3. You may hand-deliver written comments and information to our
Ventura Fish and Wildlife Office, at the above address, or fax your
comments to (805) 644-3958.
All comments and materials received, as well as supporting
documentation used in the preparation of this proposed rule, will be
available for public inspection, by appointment, during normal business
hours at the above address.
FOR FURTHER INFORMATION CONTACT: Diane Noda, Field Supervisor, Ventura
Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola
Road, Suite B, Ventura, CA 93003 (telephone 805/644-1766; facsimile
Public Comments Solicited
It is our intent that any final action resulting from this proposal
will be as accurate as possible. Therefore, we solicit comments or
suggestions from the public, other concerned governmental agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule. On the basis of public comment, during
the development of the final rule we may find that areas proposed are
not essential, are appropriate for exclusion under section 4(b)(2), or
not appropriate for exclusion, and in all of these cases, this
information would be incorporated into the final designation. We
particularly seek comments concerning:
(1) The reasons why any areas should or should not be determined to
be critical habitat as provided by section 4 of the Act, including
whether the benefits of designation will outweigh any threats to the
taxon resulting from the designation;
(2) Specific information on the amount and distribution of
Astragalus lentiginosus var. piscinensis and its habitat, and which
habitat or habitat components are essential to its conservation and
(3) Land use designations and current or planned activities in or
adjacent to the area proposed and their relationship to the proposed
(4) Current or planned water withdrawals or diversions in or
adjacent to the area proposed and their relationship to the proposed
(5) Any foreseeable economic or other potential impacts resulting
from the proposed designation of critical habitat, in particular, any
impacts on small entities and to the water user community;
(6) Methodologies that we might use, pursuant to section 4(b)(2) of
the Act, to determine if the benefits of excluding an area from
critical habitat outweigh the benefits of designating the area as
(7) Whether our approach to critical habitat designation could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments;
(8) Additional information that can be used to characterize or more
completely understand the regional aquifer that supports aquatic or
riparian habitat in Fish Slough, or how local ground water pumping
activities affect the hydrology of Fish Slough; and
(9) Information or comment on the merits of the proposed 1,000
meter wide upland area surrounding the alkaline soils, including the
need or value of including all or part of this area to ensure an
adequate supply of pollinators, manage for control of invasive species,
and include sites that could be restored to alkaline soils and
reoccupied by Astragalus lentiginosus var. piscinensis.
If you wish to comment, you may submit your comments and materials
concerning this proposal by any one of several methods (see ADDRESSES
section). Please submit electronic comments in ASCII file format and
avoid the use of special characters and any form of encryption. Please
also include Attn: ``RIN 1018-AJ09'' and your name and return address
in the body of your message. If you do not receive a confirmation from
the system that we have received your internet message, contact us
directly by calling our Ventura Fish and Wildlife Office at phone
number (805) 644-1766. Please note that the e-mail address ``
email@example.com'' will be closed out at the termination of the public
Our practice is to make comments, including names and home
addresses of respondents, available for public review during normal
business hours. Individual respondents may request that we withhold
their home address from the rulemaking record and we will honor such
requests to the extent allowable by law. There also may be
circumstances in which we would withhold from the rulemaking record a
respondent's identity, as allowable by law. If you wish us to withhold
your name and/or address, you must state this prominently at the
beginning of your comment. We will not, however, consider anonymous
comments. We will make all submissions from organizations or
businesses, and from individuals identifying themselves as
representatives or officials of organizations or businesses, available
for public inspection in their entirety. Comments and materials
received will be available for public inspection, by appointment,
during normal business hours at the above address.
Designation of Critical Habitat Provides Little Additional Protection
In 30 years of implementing the Act, we have found that the
designation of statutory critical habitat provides little additional
protection to most listed species while consuming significant amounts
of available conservation resources. Our present system for designating
critical habitat has evolved since its original statutory prescription
into a process that provides little real conservation benefit, is
driven by litigation and the courts rather than biology, limits our
ability to fully evaluate the science involved, consumes enormous
agency resources, and imposes huge social and economic costs. We
believe that additional agency discretion would allow our focus to
return to those actions that provide the greatest benefit to the
species most in need of protection.
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
While attention to and protection of habitat is paramount to
successful conservation actions, we have consistently found that, in
most circumstances, the designation of critical habitat is of little
additional value for most listed species yet consumes large amounts of
conservation resources. Sidle (1987) stated ``Because the ESA can
protect species with and without critical habitat designation, critical
habitat designation may be redundant to the other consultation
requirements of section 7.'' Currently, only 445 species or 36 percent
of the 1,244 listed species in the United States under the jurisdiction
of the Service have designated critical habitat. We address the habitat
needs of all 1,244 listed species through conservation mechanisms such
as listing, section 7 consultations, the Section 4 recovery planning
process, the Section 9 protective prohibitions of unauthorized take,
the Section 6 funding to the states, and the Section 10 incidental take
permit process. We believe that it is these measures that may make the
difference between extinction and survival for many species.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected us to an ever-increasing series of court orders and court-
approved settlement agreements, compliance with which now consumes
nearly the entire listing program budget. This leaves us with little
ability to prioritize our activities to direct scarce listing resources
to the listing program actions with the most biologically urgent
species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, our own proposals to list critically
imperiled species, and final listing determinations on existing
proposals are all significantly delayed.
The accelerated schedules of court-ordered designations have left
us with almost no ability to provide for adequate public participation
or to ensure a defect-free rulemaking process before making decisions
on listing and critical habitat proposals due to the risks associated
with noncompliance with judicially-imposed deadlines. This in turn
fosters a second round of litigation in which those who fear adverse
impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless, is very
expensive, and in the final analysis provides relatively little
additional protection to listed species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects and the cost of requesting and responding to
public comment, and in some cases the costs of compliance with the
National Environmental Policy Act (NEPA); all are part of the cost of
critical habitat designation. None of these costs result in any benefit
to the species that is not already afforded by the protections of the
Act enumerated earlier, and they directly reduce the funds available
for direct and tangible conservation actions.
Astragalus lentiginosus Douglas ex Hook. var. piscinensis Barneby
(Fish Slough milk-vetch), was described by Barneby (1977). The type
specimen was collected from BLM Spring in the central portion of Fish
Slough 8 miles (mi) (13 kilometers (km)) north of the town of Bishop,
California. Spellenberg (1993) retained this variety in his treatment
of Astragalus, which was published in the most recent edition of The
Jepson Manual of Higher Plants of California. The genus Astragalus is
in the pea family (Fabaceae).
Astragalus lentiginosus var. piscinensis is a prostrate perennial,
with few-branching stems that are up to 39 inches (in) (1 meter (m)) in
length and covered with stiff, appressed hairs. Leaflets, flowers, and
fruits are described in the final listing rule (63 FR 53596).
The Service listed Astragalus lentiginosus var. piscinensis as
threatened under the Act on October 6, 1998 (63 FR 53596). Please refer
to our final listing rule for a more detailed discussion of the
species' taxonomic history and description. A. l. var. piscinensis is
not listed by the State of California as a rare, threatened, or
endangered taxon, and is not a state candidate for listing as
threatened or endangered.
Status and Distribution
The entire known range of Astragalus lentiginosus var. piscinensis
is restricted to a 6 mi (9.7 km) long area of alkaline habitat that
parallels Fish Slough, a wetland oasis in Inyo and Mono Counties,
California. Fish Slough is located in the northern end of the Owens
Valley area, along the eastern edge of the Sierra Nevada Mountains in
central California. The Fish Slough area is approximately 4,200 feet
(ft) (1,280 m) in elevation. Alkaline habitat at Fish Slough is
characterized by soil that has a sandy or silty texture and a white
appearance. This alkaline habitat forms a ring around the seasonally
and permanently flooded wetland habitat in the slough itself. The
alkali flat and alkali scrub habitats in the Fish Slough ecosystem were
mapped in 1991 (Ferren 1991a). Approximately 540 ac (219 ha) of
alkaline habitat were present in Fish Slough when this mapping effort
was completed. For reasons that are not precisely known, A. l. var.
piscinensis does not inhabit the entire alkaline habitat present in
Fish Slough (Ferren 1991a; Odion et al. 1991).
A comparison of the distribution of alkaline habitat that exists in
Fish Slough today with aerial photographs taken in 1950 suggests the
geographic extent of alkaline habitat in Fish Slough has decreased over
time (Anne Halford, Bureau of Land Management, pers. comm. 2004). There
has not been an effort to precisely map the boundary of the alkaline
areas in the photographs, but some of the areas that previously
possessed alkaline soil would now be mapped as xeric uplands that would
not be likely to support Astragalus lentiginosus var. piscinensis.
In 1992, staff from the Los Angeles Department of Water and Power
(LADWP) and Bureau of Land Management (BLM) performed the first
comprehensive survey to locate all of the Astragalus lentiginosus var.
piscinensis in Fish Slough (Novak 1992). The survey documented
approximately 3,200 widely-scattered individuals within a 530-ac (214-
ha) area. This survey also demonstrated that multiple sites that had
been occupied by A. l. var. piscinensis in the 1980s and 1991 were
larger in geographic extent than previously suspected. One site where
six plants were documented in the 1980s and 1991 had no plants in 1992.
Another site experienced a decline in the number of observed plants
from 44 in 1983 to 8 in 1992. The areas where A. l. var. piscinensis
occurred in 1992 were resurveyed in 2000, and it was determined that
the overall number of mature plants declined from the 3,200 individuals
in 1992 to 1,543 plants in 2000 (A. Halford, pers. comm. 2004). The
2000 survey did not result in the discovery of any new, additional
patches of A. l. var. piscinensis, and the overall distribution of the
taxon in 2000 was similar to what was observed in 1992.
Fish Slough can be divided into northern, central, and southern
areas. Sixty percent of the known Astragalus lentiginosus var.
piscinensis plants occur in the northern portion of the slough on land
owned by the LADWP. In 1991, LADWP staff constructed an 80-ac (32-ha)
cattle exclosure in the northern portion of Fish Slough; in 1992, over
95 percent of the A. l. var. piscinensis plants documented in the
northern portion of Fish Slough were within this exclosure.
Approximately 35 percent of the known A. l. var. piscinensis plants
occur in the central portion of the slough on lands owned and managed
by the BLM or the LADWP. The remaining 5 percent of the known plants
occur as scattered patches in the southern portion of the slough
located north of the McNally Canal. This land is owned by the BLM or
the LADWP. The area south of McNally Canal contains little habitat
suitable for A. l. var. piscinensis (Novak 1992).
Staff from the LADWP and the BLM collect population trend data for
Astragalus lentiginosus var. piscinensis in five monitoring plots on
land owned by the LADWP. Two monitoring plots are located in the 80-ac
(32-ha) cattle exclosure, where grazing has not occurred since 1991.
The other three monitoring plots are subject to grazing. One grazed
plot is north of the cattle exclosure, and the other two are in the
central portion of Fish Slough near BLM Spring. Monitoring of the five
plots occurred annually between 1991 and 2002 (Paula Hubbard, LADWP,
pers. comm. 2003; A. Halford, pers. comm. 2003), except for one plot
near BLM Spring in 1995, and for the plot north of the cattle exclosure
in 1996. When trend data were collected, there was an effort to
quantify the number of seedlings, immature plants, and mature plants in
Data collected from LADWP plots provide insight into how the
abundance of Astragalus lentiginosus var. piscinensis has varied over
time at specific sites. An average of 33 plants was present in ungrazed
plot 1 between 1991 and 1996, but this declined by 61 percent to an
average of 13 plants between 1997 and 2002. Similarly, in ungrazed plot
2, an average of 104 plants was present between 1991 and 1996; this
declined by 52 percent to an average of 50 plants between 1997 and
2002. In the grazed plot north of the cattle exclosure (plot 3), an
average of 41 plants was present between 1991 and 1996, while the
average present between 1997 and 2002 was 48 (an increase of 17
percent). In grazed plot 4, north of BLM Spring, an average of 15
plants was present between 1991 and 1996; this number declined by 53
percent to an average of 7 plants between 1997 and 2002. In grazed plot
5, north of BLM Spring, an average of 7 plants were present in the plot
between 1991 and 1996; this number declined by 86 percent to an average
of 1 plant between 1997 and 2002. If data from all plots (i.e., grazed
and ungrazed) are considered together, the average number of plants in
the plots declined by approximately 41 percent between the two periods.
The number of immature plants observed within a plot has exceeded the
number of mature plants in that plot for only one plot (grazed plot 3)
during the monitoring period, and this only occurred twice. The number
of seedlings present in different plots has varied over time, with the
greatest number of seedlings occurring in the northern portion of the
slough in ungrazed plot 2 and grazed plot 3. The plant census data
collected within and outside the cattle exclosure suggest that the
decline in A. l. var. piscinensis within the monitoring plots may be
caused by one or more factors that may not relate directly to grazing
activities, and suggest that low numbers of cattle in an area may not
necessarily have an adverse effect on A. l. var. piscinensis.
Staff from the BLM also monitor changes in the abundance of
Astragalus lentiginosus var. piscinensis at five plots established in
1997 or 1998 on lands under their jurisdiction. Three of the plots are
near the middle of Fish Slough. The number of A. l. var. piscinensis in
two of these plots declined from 14 plants in 1997 to 3 plants in 2003,
and from 47 plants in 1998 to 5 plants in 2003. At the third plot near
the middle of Fish Slough, the number of plants has varied between 19
and 22 individuals during a 7-year period. At the two plots near BLM
Spring, the number of A. l. var. piscinensis has remained relatively
constant between 1997 and 2003, with one plot having between 39 and 46
individuals, and the other plot having between 6 and 8 plants. The only
plot where a substantial number of young individuals were seen between
1997 and 2003 was located near BLM spring.
Previously identified threats to Astragalus lentiginosus var.
piscinensis include the presence of roads, effects related to the use
of motorized off-road vehicles, effects related to cattle grazing, and
herbivory by native vertebrates and insects (USFWS 1998). A potential
threat to A. l. var. piscinensis not previously identified in other
documents includes competition with, or displacement by, non-native
plant species (P. Hubbard, pers. comm. 2003). The modification of
wetland habitats which results from ground water pumping or water
diversion activities that alter the surface and underground hydrology
of Fish Slough are also a threat to the taxon (USFWS 1998).
The use of motorized off-road vehicles and the presence of roads
have affected habitat occupied by Astragalus lentiginosus var.
piscinensis. Approximately 19 mi (30.6 km) of roads exist within 3,280
ft (1,000 m) of the alkaline habitats within Fish Slough. South of BLM
Spring, on the east side of the slough, a road bisects one cluster of
the listed plants, and off-road vehicle use in the central portion of
the slough has been documented (Novak 1992). Soil compaction and
topographic changes resulting from road presence and off-road vehicle
activity can affect soil moisture regimes in Fish Slough, and
potentially result in changes in seasonal inundation patterns that may
adversely affect A. l. var. piscinensis.
Roads through upland areas in Fish Slough also create increased
levels of human visitation that would otherwise be unlikely if roads
were absent. Roads have been associated with negative impacts that
alter the biotic integrity of both terrestrial and aquatic habitats
(Trombulak and Frissell 2000). A growing body of published literature
indicates that vehicular traffic along road networks in terrestrial
habitats increases the likelihood that non-native plant seeds will be
introduced into areas
where they were previously absent (Wace 1977; Schmidt 1989; Lonsdale
and Lane 1994). Some of the non-native plant species in Fish Slough
(e.g., five hook bassia (Bassia hyssopifolia)) are identified as pest
plants of ecological concern (CalEPPC 1999) and have the potential to
invade and degrade the quality of alkaline habitats and compete with
Astragalus lentiginosus var. piscinensis.
The BLM does not permit grazing on lands they administer in Fish
Slough. With the exception of the 80-ac (32-ha) cattle exclosure in the
northern portion of Fish Slough, lands under LADWP management that
support Fish Slough milk-vetch are grazed (P. Hubbard, pers. comm.
2003). The LADWP has not completed a management plan that provides
specific prescriptions to guide grazing activities in Fish Slough.
Currently, there are approximately 40 head of cattle and up to 8 horses
in Fish Slough between late summer and March annually (P. Hubbard,
pers. comm. 2003). The LADWP schedules grazing activities so cows are
absent from the slough during the milk-vetch growing season.
We believe that moderate to intense levels of cattle grazing in
Fish Slough could result in a number of adverse effects. For example,
the composition of the local plant community could be altered by
reducing or eliminating species that cannot tolerate trampling and
increasing the abundance of plant species that are tolerant to
trampling. Other taxa that were not previously part of the native plant
community may be introduced as a result of grazing activities (e.g.,
introduction of seeds of non-native species from supplemental feed that
is not weed seed free). The regular presence of cattle in an area could
result in the creation of cattle trails that are devoid of vegetation,
and therefore reduce the amount of habitat that could be occupied by
Astragalus lentiginosus var. piscinensis. Trampling by livestock can
also reduce the number of burrows or other nesting sites available for
bee pollinators (Sugden 1985), and actions that concentrate the
presence of cattle in a particular location (e.g., placement of salt
licks) may lead to an increased likelihood that individual A. l. var.
piscinensis plants could be trampled.
Native herbivores may exert a substantial effect on the
reproductive output of individual Astragalus lentiginosus var.
piscinensis plants. Infestations of root systems by phloem-sucking
insects and high rates of rabbit herbivory have been reported for A. l.
var. piscinensis individuals that were present in the central portion
of Fish Slough (Mazer and Travers 1992). Ferren (1991a) observed rabbit
feces adjacent to individuals that had been stripped of leaves,
flowers, and seeds, and assumed these plants had been browsed or
otherwise adversely affected by rabbits. Mazer and Travers (1992) found
that plants in the central portion of Fish Slough experienced high
herbivory levels when compared to plants in the northern portion of the
slough. Some plants in the center of the slough had 80 percent of their
branches grazed by rabbits or rodents, while in the northern portion of
the slough fewer than 20 percent of the branches of some plants had
been grazed. Herbivory of A. l. var. piscinensis by rodents and insects
has also been noted during the aforementioned surveys of long-term
monitoring plots (P. Hubbard, pers. comm. 2003). A large percentage of
A. l. var. piscinensis seeds in Fish Slough may be perforated by holes
that are created by weevils or wasps. In addition, gopher activity and
ant colonies under previously live plants have been noted during
monitoring activities. It is not known if herbivory of A. l. var.
piscinensis plants is responsible for low recruitment levels of the
listed plant taxon.
Investigations into the condition and viability of Astragalus
lentiginosus var. piscinensis seeds suggest that a large fraction of
its viable seeds will germinate under laboratory conditions, but that a
large proportion of seeds may be parasitized. Of the 2,901 seeds
collected from 35 plants in Fish Slough on September 10, 2000, 1,039
seeds (36 percent) were found to have been parasitized by one or more
insect species (Wall 2001). The identity of the insects has not been
determined, but may include a weevil (Joy Fatooh, BLM, in litt. 2003),
or a wasp (Wall 2001). Parasitism of a seed is believed to always
result in damage to the seed embryo (Joy Fatooh, BLM, in litt. 2002).
The proliferation of non-native plant species in Fish Slough has
the potential to adversely affect Astragalus lentiginosus var.
piscinensis. Non-native salt cedar (Tamarix ramosissima), five hook
bassia, Russian thistle (Salsola iberica), and pepperweed (Lepidium
latifolium) would compete with A. l. var. piscinensis for available
space, nutrients, and water if the different species had overlapping
distributions. The presence of pepperweed in Fish Slough is especially
problematic since that species is able to colonize and rapidly spread
into a variety of habitat types, including alkaline areas where A. l.
var. piscinensis is present (P. Hubbard, pers. comm. 2003). Currently,
dense concentrations of non-native plant species are not found with A.
l. var. piscinensis. Recognizing that non-native competition could be a
problem, LADWP, BLM, and California Department of Fish and Game (CDFG)
staff systematically work to control the spread of non-native plant
species in Fish Slough.
Natural changes in, or human-induced modifications of, aquatic
habitat in Fish Slough may reduce the number of Astragalus lentiginosus
var. piscinensis. A long-term threat to the milk-vetch may include the
expansion of Fish Slough Lake. The increased size of the lake may be
due to natural geologic processes (e.g., earthquakes), or human-caused
actions (e.g., the construction of Red Willow Dam, a small earthen
berm). Expansion of Fish Slough Lake from natural processes or human-
caused actions has resulted in increased soil inundation, expansion in
the distribution of emergent wetland vegetation, and loss of suitable
alkaline habitat for Fish Slough milk-vetch (Ferren 1991c). Beavers
(Castor canadensis) have been observed in Fish Slough Lake and the
Northwest Springs area, and their presence sometimes results in changes
in local soil moisture conditions as they construct ponds. The
construction of a beaver dam near one of the aforementioned long-term
monitoring plots on land owned by the LADWP (ungrazed plot 1) appears
to coincide with decreases in the number of A. l. var. piscinensis
plants that were counted (P. Hubbard, pers. comm. 2004).
The creation of earthen dams, fish barriers, and weirs that
facilitate water flow measurements has also likely affected Astragalus
lentiginosus var. piscinensis. The dams and fish barriers have been
built for a variety of purposes, including habitat enhancement for
waterfowl, creation of sport fish habitat, and management activities
that were designed to benefit native fish. These activities have also
altered the slough hydrology by increasing the size of permanently
flooded habitats, modifying surface water drainage patterns, and
increasing the length of time that A. l. var. piscinensis habitat is
inundated or subject to elevated soil moisture conditions. Each of
these effects creates conditions that are less suitable or unsuitable
for A. l. var. piscinensis. No new dams have been built in Fish Slough
since 1980. Staff from the BLM and CDFG have removed two dams and are
analyzing the potential to remove Red Willow Dam, now the single
largest water control structure remaining in Fish Slough.
Water diversion activities associated with mining operations may
also affect the hydrology near the southern end of Fish Slough. The
Desert Aggregate Mine is situated near the southernmost portion of Fish
Slough on lands owned by the LADWP and is 0.75 mi (1.2 km) south of the
southernmost known occurrence of Astragalus lentiginosus var.
piscinensis. The mine was specifically developed at a site with coarse,
permeable gravels and the transmissivity (a measure of the ease at
which ground water can move through the aquifer) of the area around the
mine is relatively high (Danskin 1998). Ground water pumping activities
at pits at the mine in 1986 or 1987 adversely affected riparian
vegetation to the extent that large areas of vegetation south and down-
gradient of the mine and Fish Slough died as water tables declined (P.
Hubbard, pers. comm. 2003; Sally Manning, County of Inyo, pers. comm.
2003). The effect of ground water pumping on alkaline habitats around
the mine was not documented and so it is unknown if alkaline habitats
near the mine were also adversely affected. Mining activities nearest
to Fish Slough have been completed.
Three major spring areas are present in Fish Slough. Northeast
Spring and Northwest Springs are located in the northern portion of the
slough, and BLM Spring is present in the east-central portion of the
slough. Staff from the LADWP has quantified the amount of water passing
through Fish Slough for several decades. The volume of water moving
through Fish Slough at one monitoring site declined from 148-152 cubic
feet per second (cfs) (4,191-4,304 liters per second (lps)) in the
early 1920s to 84-96 cfs (2,379-2,718 lps) in the early 1960s. This
reduction in water flow is larger than the annual variability in water
volume that can be accounted for by seasonal variation in evaporative
losses and transpiration by local phreatophytes (Pinter and Keller
1991). The cause for the decrease in water flow through the slough
between the 1920s and the 1960s has not been conclusively identified,
but may be related to increased ground water pumping in the Chalfant
Valley 2 mi (3.2 km) northeast of Fish Slough (Pinter and Keller 1991;
Analysis of water table levels in a number of wells in Chalfant and
Hammil valleys east or northeast of Fish Slough confirms that there is
an incremental decrease in the potentiometric surface (i.e., height of
the water table) between these valleys and Fish Slough. This decrease
suggests that ground water is moving down gradient from Chalfant and
Hammil valleys to the Fish Slough area (MHA 2001).
The Tri-Valley Groundwater Management District (District) in Mono
County was established in 1989, in part, to review and approve
proposals to export water from the District. The District includes
Chalfant, Hammil, and Benton valleys. California landowners may extract
as much ground water as they can put to beneficial use, and no permit
is required to pump ground water (DWR 1996). Between 1999 and 2001, the
District considered a proposal by United States Filter Water Resources,
Inc. to pump and export 13,700 acre-feet (16.9 billion liters) of
ground water per year (MHA 2001). If the project had been approved as
initially proposed, captured water would have been conveyed in a closed
pipe and diverted to a location south and down-gradient of Fish Slough.
The project was ultimately abandoned, in part, because of environmental
concerns for Fish Slough. The District will continue to consider
applications to export water, however, as projects to do so are
Lack of recruitment is a potential threat to Astragalus
lentiginosus var. piscinensis. Staff from the BLM and the LADWP has
monitored this taxon from 1992 to 2002, observing that only a few young
plants matured and persisted during that time (A. Halford, pers. comm.
2003; P. Hubbard, pers. comm. 2003). Two possible explanations for the
lack of recruitment are high rabbit/rodent herbivory of seedlings and
changes in soil hydrology or chemistry that make the habitat less
suitable for seed germination and plant growth.
Previous Federal Action
On October 6, 1998, the Service published a final rule in the
Federal Register (63 FR 53596), which determined endangered status for
three plant taxa and threatened status for two plant taxa, including
Astragalus lentiginosus var. piscinensis. Please refer to the final
rule listing the taxon for information on previous Federal actions
prior to October 6, 1998. In the final rule listing A. l. var.
piscinensis, the Service determined that endangered status for this
taxon was not warranted because a significant portion of the listed
plant occurrences in northern Fish Slough were protected by a cattle
exclosure, thereby reducing threats from grazing and trampling. In
addition, the land where the taxon occurred was receiving specific
management consideration at the time the final rule was published due
to its inclusion in a special management unit administered by the BLM.
The Service determined that, while this taxon may not have been in
immediate danger of extinction, it was likely to become endangered in
the foreseeable future throughout all or a significant portion of its
range, and listing as threatened was warranted.
At the time Astragalus lentiginosus var. pinscinensis was listed,
we determined that designation of critical habitat was not prudent
because the potential benefits were outweighed by the potential
negative effects of designating critical habitat. We believed that
designation of critical habitat could result in increased threats of
illegal collection and vandalism and the designation would not compel
or require a private or other non-Federal landowner to undertake active
management for the taxon or to modify proposed project activities in
the absence of a Federal nexus.
On November 15, 2001, the Center for Biological Diversity and the
California Native Plant Society filed a lawsuit in the U.S. District
Court for the Southern District of California challenging our
determination not to designate critical habitat for eight desert
plants, including Astragalus lentiginosus var. pinscinensis (Center for
Biological Diversity et al. v. Norton, No. 01 CV 2101). On July 1,
2002, the Court ordered the Service to reconsider its not prudent
determination and propose critical habitat, if prudent, for A. l. var.
pinscinensis on or before November 15, 2003. On September 9, 2003, the
court issued a subsequent order that required the Service to publish a
proposed critical habitat designation for A. l. var. pinscinensis by
June 1, 2004.
We have reconsidered our evaluation of the threats posed by
vandalism in the not prudent determination, and now determine that the
threats to Astragalus lentiginosus var. pinscinensis from specific
instances of vandalism are limited, if not speculative. Accordingly, we
withdraw our previous determination that the designation of critical
habitat is not prudent for A. l. var. pinscinensis and determine that
the designation of critical habitat is prudent. At this time, we have
sufficient information necessary to identify specific areas as
essential to the conservation of this plant taxon and are therefore
proposing critical habitat (see ``Methods'' section below for a
discussion of information used in our reevaluation).
Section 3(5)(A) of the Act defines critical habitat as--(i) the
specific areas within the geographic area occupied by a species, at the
time it is listed in accordance with the Act, on which are
found those physical or biological features (I) essential to the
conservation of the species and (II) that may require special
management considerations or protection; and (ii) specific areas
outside the geographic area occupied by a species at the time it is
listed, upon a determination that such areas are essential for the
conservation of the species. ``Conservation'' means the use of all
methods and procedures that are necessary to bring an endangered or a
threatened species to the point at which listing under the Act is no
The designation of critical habitat does not affect land ownership
or establish a refuge, wilderness, reserve, preserve, or other
conservation area. It does not allow government or public access to
private lands. Under section 7 of the Act, Federal agencies must
consult with us on activities they undertake, fund, or permit that may
affect critical habitat and lead to its destruction or adverse
modification. However, the Act prohibits unauthorized take of listed
species and requires consultation for activities that may affect them,
including habitat alterations, regardless of whether critical habitat
has been designated. We have found that the designation of critical
habitat provides little additional protection to most listed species.
To be included in a critical habitat designation, habitat must be
either a specific area within the geographic area occupied by the
species on which are found those physical or biological features
essential to the conservation of the species (primary constituent
elements, as defined at 50 CFR 424.12(b)) and which may require special
management considerations or protection, or be specific areas outside
of the geographic area occupied by the species which are determined to
be essential to the conservation of the species. Section 3(5)(C) of the
Act states that not all areas that can be occupied by a species should
be designated as critical habitat unless the Secretary determines that
all such areas are essential to the conservation of the species. Our
regulations (50 CFR 424.12(e)) also state that, ``The Secretary shall
designate as critical habitat areas outside the geographic area
presently occupied by the species only when a designation limited to
its present range would be inadequate to ensure the conservation of the
Regulations at 50 CFR 424.02(j) defines special management
considerations or protection to mean any methods or procedures useful
in protecting the physical and biological features of the environment
for the conservation of listed species. When we designate critical
habitat, we may not have the information necessary to identify all
areas which are essential for the conservation of the species.
Nevertheless, we are required to designate those areas we consider to
be essential, using the best information available to us. Accordingly,
we do not designate critical habitat in areas outside the geographic
area occupied by the species unless the best available scientific and
commercial data demonstrate that unoccupied areas are essential for the
conservation needs of the species.
Section 4(b)(2) of the Act requires that we take into consideration
the economic impacts, the effect on national security, and any other
relevant impact, of specifying any particular area as critical habitat.
We may exclude areas from critical habitat designation when the
benefits of exclusion outweigh the benefits of including the areas
within critical habitat, provided the exclusion will not result in
extinction of the species.
Our Policy on Information Standards Under the Endangered Species
Act, published in the Federal Register on July 1, 1994 (59 FR 34271),
provides criteria, establishes procedures, and provides guidance to
ensure that our decisions represent the best scientific and commercial
data available. It requires our biologists, to the extent consistent
with the Act and with the use of the best scientific and commercial
data available, to use primary and original sources of information as
the basis for recommendations to designate critical habitat. When
determining which areas are critical habitat, a primary source of
information should be the listing package for the species. Additional
information may be obtained from a recovery plan, articles in peer-
reviewed journals, conservation plans developed by States and counties,
scientific status surveys and studies, biological assessments, or other
unpublished materials and expert opinion or personal knowledge.
Section 4 of the Act requires that we designate critical habitat on
the basis of what we know at the time of designation. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available information
at the time of the action. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.
As required by the section 4(b)(2) of Act and regulations at 50 CFR
424.12, we used the best scientific information available to determine
areas that contain the physical and biological features that are
essential for the conservation of Astragalus lentiginosus var.
piscinensis, and that may require special management considerations or
protection. This includes information from our own documents, including
the data from the final rule listing the taxon as threatened (66 FR
27901), recent biological surveys, reports and aerial photos,
documentation provided by staff from the BLM and the LADWP, and
discussions with botanical and hydrologic experts. We also conducted
two site visits to Fish Slough, and met with staff from the BLM, the
LADWP, and CDFG to solicit their views on various management aspects
involving A. l. var. piscinensis.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to propose as critical
habitat, we consider those physical and biological features (primary
constituent elements) that are essential to the conservation of the
species and that may require special management considerations or
protection. These include, but are not limited to: Space for individual
and population growth, and for normal behavior; food, water, air,
light, minerals or other nutritional or physiological requirements;
cover or shelter; sites for reproduction, germination, or seed
dispersal; and habitats that are protected from disturbance or are
representative of the
known historic, geographic, and ecological distributions of a species.
The proposed critical habitat unit has been delineated to provide
sufficient habitat to maintain a self-sustaining population of
Astragalus lentiginosus var. piscinensis in Fish Slough and includes
those habitat components essential for the conservation of the taxon.
These habitat components provide for: (1) Individual and population
growth, including sites for germination, pollination, reproduction,
pollen and seed dispersal, and seed dormancy; (2) areas that allow gene
flow and provide connectivity or linkage between different locations
within Fish Slough; and (3) areas that provide basic requirements for
growth, such as water, light, and minerals.
The presence of water is essential to the development and
maintenance of alkaline soils and habitat upon which Astragalus
lentiginosus var. piscinensis depends. The alkaline soils in Fish
Slough where alkali flat, alkali scrub, and meadow habitats occur are
generally classified as aquic torriorthents-aquent complex with 0-2
percent slope. These alkaline soils develop as mineral-rich, shallow
ground water rises under capillary action to the surface by the high
evaporation rates which prevail in the Fish Slough area. As this water
evaporates at the soil surface, its solute load precipitates, creating
a veneer of white salts and minerals. The alkaline habitat that A. l.
var. piscinensis occupies is likely to have a water table that
fluctuates between 19-60 in (0.5-1.5 m) below the land surface (Odion
et al. 1991). In areas where water tables are more 2 m (6.6 ft) deep,
capillary action is insufficient to promote and maintain the
development of alkaline soils (Odion et al. 1991).
Between May 1999 and October 2001, a variety of in situ and
experimental studies were conducted to evaluate the relationship
between photosynthetic rates, growth rates, fecundity, and survivorship
of Astragalus lentiginosus var. piscinensis as depth to a water table
varied (Murray and Sala, 2003). Data from these studies suggest that
elevated water tables are likely to adversely affect these variables if
local water tables are less than 35-40 cm (13.8-15.7 in) below the land
surface. Therefore, water tables that rise too close to the land
surface and the root zone of A. l. var. piscinensis may be detrimental
to individual plants that are subjected to saturated soils for a
prolonged period of time.
Fish Slough is a wetland in an otherwise arid landscape. The
average annual rainfall in the town of Bishop is 5.0 in (12.7
centimeters (cm)). The average annual evapo-transpiration rates in
alkaline meadows or alkaline scrub habitats in the greater Owens Valley
area which are most similar to the habitat type occupied by Astragalus
lentiginosus var. piscinensis range between 18.5-40.5 in (47.0-102.9
cm) and 15.2-23.6 in (38.6-59.9 cm), respectively (Danskin 1998).
Because the low annual rainfall and high annual evapo-transpiration
rates in the Bishop area create an arid environment, it is essential
that a substantial and sustained amount of surface and ground water
exists to maintain the wetland and riparian habitats that are present
in Fish Slough.
The sources of the water that discharge from springs in Fish Slough
have not yet been conclusively identified. Available data indicate that
Fish Slough water is derived from the Casa Diablo Mountain area (BLM
1984; MHA 2001), the Tri-Valley area, or a combination of the two areas
(MHA 2001). The Casa Diablo Mountain area reaches a maximum elevation
of 7,913 ft (2,412 m) and is located 9.5 mi (15.3 km) northwest of Fish
Slough. The area between Fish Slough and Casa Diablo Mountain is
locally referred to as the Volcanic Tableland. The geology of the
Volcanic Tableland predominantly consists of the Bishop Tuff, which has
a welded ash and tuff surface veneer. Underneath the surface veneer, a
thicker, more permeable layer is present in the Volcanic Tableland. The
lower unit of the tuff is extensively fractured and faulted, and some
areas are more permeable than wind-blown sand (DWR 1964). These
fractures act as conduits that convey ground water from higher
elevation areas with greater levels of precipitation to the lower
elevation Fish Slough area where low amounts of precipitation
predominate. The Tri-Valley area is bounded on the east by the White
Mountains, which reach an elevation of up to 14,245 ft (4,342 m), and
to the west by a ridge that separates it from Fish Slough. This ridge
is less than 280 ft (85 m) higher than the valley floor. The high
elevation of the White Mountains promotes the deposition of
precipitation. This water then percolates into alluvial fans at the
base of the mountains, and ultimately enters the coarse alluvium that
is present on the floors of Benton, Hammil, and Chalfant valleys.
Because the surface elevation decreases from Benton Valley in the north
to Chalfant Valley in the south, and because Fish Slough is lower in
elevation than all three of these valleys, ground water tends to move
in a southerly or southwesterly direction toward Fish Slough or toward
Chalfant Valley east of Fish Slough. A number of fault lines are
present in the Fish Slough and Volcanic Tableland area (MHA 2001) and
these features likely affect the presence, distribution, and volume of
ground water present in the local area (Andy Zdon, MHA Environmental
Consulting, Inc., pers. comm. 2004).
The alkaline flats where Astragalus lentiginosus var. piscinensis
occurs are typically dominated by a Spartina--Sporobolis (cordgrass--
dropseed) plant association. A. l. var. piscinensis may also occur
where a sparse amount of Chrysothamnus albidus (rabbit-brush) exists in
the transition zone between Spartina--Sporobolis and Chrysothamnus
albidus--Distichlis (rabbit-brush--saltgrass) plant associations.
Sawyer and Keeler-Wolf (1995) classify the alkaline habitats where A.
l. var. piscinensis occurs as a cordgrass series or saltgrass series.
Astragalus lentiginosus var. piscinensis is frequently sympatric with
Ivesia kingii (alkali ivesia). The higher elevation areas where A. l.
var. piscinensis is absent consist of dry shadscale scrub communities
that are dominated by various species of Atriplex spp. (saltbush).
Distribution of many alkaline-tolerant plant species is largely
determined by a combination of environmental factors, predominantly
soil moisture and salinity. These two factors in combination may affect
the physiology of adult and immature plants, seed germination, and
seedling survival. Mazer and Travers (1992) suggest that seed
germination and successful establishment of Astragalus lentiginosus
var. piscinensis seedlings are infrequent events, and that sufficient
rainfall is necessary to promote seed germination and survivorship of
young plants. The suite of environmental factors that determine where
Astragalus lentiginosus var. piscinensis occurs is also likely to
determine the composition of the broader plant community of which A. l.
var. piscinensis is a part. Changes in soil moisture and salinity are
likely to influence not only the abundance and presence of A. l. var.
piscinensis but also to affect the persistence and character of the
Spartina--Sporobolis plant association in which A. l. var. piscinensis
Upland areas adjacent to the alkaline habitat where Astragalus
lentiginosus var. piscinensis currently exists are also important
because some of these areas historically possessed alkaline habitat
that no longer exists. The long-term success of the conservation of
Astragalus lentiginosus var. piscinensis may depend upon efforts to
restore the extent and character of the alkaline
habitat that historically existed. Inclusion of currently unoccupied
upland habitat within the proposed critical habitat unit will therefore
include the areas that are necessary to promote the conservation of the
listed plant taxon. This need is identified in the recovery plan for
the taxon (Owens Basin Wetland and Aquatic Species Recovery Plan Inyo
and Mono Counties, California (USFWS 1998)).
Mazer and Travers (1992) examined various aspects that relate to
the pollination ecology of Astragalus lentiginosus var. piscinensis.
They found that A. l. var. piscinensis is dependant on insects for
flower pollination and fertilization and the taxon is not capable of
producing fruits in the absence of pollinators. Bumblebees (Bombus
spp.) in the family Apidae were observed to pollinate A. l. var.
piscinensis flowers on three occasions. Bees in the family Megachilidae
are believed to be important pollinator insects for Astragalus
brauntonii (Fotheringham and Keeley 1998), and various bee taxa in this
family may occur in and adjacent to Fish Slough. With other milk-vetch
species such as A. cibarius and A. utahensis, large bees in the
families Anthophoridae and Apidae carry large pollen loads from plant
to plant, while a variety of smaller beetle and fly species carry
smaller pollen loads. These smaller insects are, therefore, likely to
have a smaller potential for pollinating Astragalus plants (Green and
Bohart 1975). Unless a specific endemic bee species is responsible for
flower pollination, it is possible that multiple bee species pollinate
the flowers of A. l. var. piscinensis (Terry Griswold, Utah State
University, pers. comm. 2003).
Studies to quantify the distance that bees will fly to pollinate
their host plants are limited in number, but the few that exist show
that some bees will routinely fly 100 to 500 m (328 to 984 ft) to
pollinate plants. Studies by Steffan-Dewenter and Tscharntke (2000)
have demonstrated that it is possible for bees to fly at least 1,000 m
(3,280 ft) to pollinate flowers, and at least one study suggests that
bumblebees may forage many kilometers from a colony (Sudgen 1985).
Studies by Steffan-Dewenter and Tscharntke (2000) also indicate that if
pollinator habitat within 1,000 m of some host plants is eliminated,
seed set of some plant species may be decreased by as much as 50
percent. Additional studies suggest that the degradation of pollinator
habitat is likely to adversely affect the abundance of pollinator
species (Jennersten 1988; Rathcke and Jules 1993).
Bumblebees usually nest in abandoned rodent burrows or bird nests
(Thorpe et al. 1980), and bees in the family Megachilidae also nest in
underground rodent burrows or in dry woody material. The alkaline
nature of the habitat occupied by Astragalus lentiginosus var.
piscinensis makes it unlikely that burrowing rodents are present in
such areas. We believe insect pollinators are more likely to nest in
upland habitats adjacent to alkaline areas because nesting and cover
sites for various species of mice, kangaroo rats, and pocket mice are
more likely to be common there (T. Griswold, pers. comm. 2003).
The upland areas adjacent to occurrences of Astragalus lentiginosus
var. piscinensis are likely to include cover and nest sites for a
variety of insects necessary for the pollination of this taxon. Surveys
have not been conducted to specifically identify which species are
responsible for the fertilization of A. l. var. piscinensis flowers
but, at a minimum, they likely include a variety of ground-nesting bee
taxa. Studies have demonstrated that it is possible for bees to fly
1,000 m (3,280 ft) or more to pollinate flowers. The bees that have
been observed on A. l. var. piscinensis include taxa that routinely
nest in underground burrows. We believe that rodent burrows are less
likely to be common in alkaline habitats and so we have concluded that
the bee pollinators that visit A. l. var. piscinensis are more likely
to use rodent burrows in upland shrub scrub plant communities within
100-1,000 m (328-3,280 ft) of the alkaline habitat occupied by the
listed plant taxon.
The maintenance of natural conditions in upland areas adjacent to
the alkaline habitat where Astragalus lentiginosus var. piscinensis
occurs is important because the presence of roads and use of motorized
vehicles have a substantial potential to introduce non-native plant
species. These upland areas may act as reservoirs for invasive plant
species and facilitate their invasion into the more mesic habitat
occupied by Fish Slough milk-vetch. Some species such as Lepidium
latifolium and Salsola iberica can survive in soils that vary in
texture and moisture. Proactive management of upland habitats at Fish
Slough is necessary to preclude the establishment of invasive non-
native plant species that could displace A. l. var. piscinensis and
that such control should not be limited to the areas immediately
adjacent to alkaline habitats.
The area we are proposing to designate as critical habitat provides
some or all of the habitat components and the physical and hydrologic
attributes that are essential for the conservation of Astragalus
lentiginosus var. piscinensis. Based on the best available information
at this time, the primary constituent elements of critical habitat for
A. l. var. piscinensis include, but are not limited to:
(1) Alkaline soils that occur in areas with little or no slope, and
which overlay a ground water table that is 19-60 in (0.5-1.5 m) below
the land surface;
(2) Plant associations dominated by Spartina--Sporobolis, or where
a sparse amount of Chrysothamnus albidus occurs in the transition zone
between Spartina--Sporobolis and Chrysothamnus albidus--Distichlis
(3) Upland areas within 1,000 m (3,280 ft) of the alkaline soils
described in (1), that support sites where the listed plant's
pollinator populations are likely to nest or obtain cover, that require
minimal disturbance and active management to limit the establishment of
non-native plant taxa, and portions of which may be suitable for
restoration and recolonization by Astragalus lentiginosus var.
(4) Hydrologic conditions that provide suitable periods of soil
moisture and chemistry for Astragalus lentiginosus var. piscinensis
germination, growth, reproduction, and dispersal.
All of the primary constituent elements outlined above do not have
to occur simultaneously within the unit to constitute critical habitat
for Astragalus lentiginosus var. piscinensis. We determined the primary
constituent elements of critical habitat for A. l. var. piscinensis
based on the best available scientific and commercial information,
including professional studies and reports that pertain to its habitat
and ecology and the hydrological conditions that are relevant to the
quality of habitat in Fish Slough. These documents include, but are not
limited to, BLM (1984); Odion et al. (1991); Ferren (1991a); Mazer and
Travers (1992); Danskin (1998); and MHA (2001).
Criteria Used To Identify Critical Habitat
The criteria that have been used to identify the proposed critical
habitat unit for Astragalus lentiginosus var. piscinensis include the
known range of the taxon, the alkaline habitat where the taxon and its
associated flora occurs, the upland areas within 1,000 m (3,280 ft) of
the alkaline soils that are occupied by the taxon, and the hydrologic
features that are essential to promote the survival and persistence of
A number of botanical surveys have been completed in most of the
alkaline habitats in the greater Owens Valley area and Astragalus
lentiginosus var. piscinensis has not been found outside of Fish Slough
(P. Hubbard, pers. comm. 2003). Mary DeDecker, the botanist who
collected the type specimen of A. l. var. piscinensis, traveled
extensively throughout the greater Owens Valley area and Inyo and Mono
Counties collecting botanical specimens for her herbarium collection.
Because her collection does not contain specimens of A. l. var.
piscinensis collected outside of Fish Slough (Michael Denslow, Rancho
Santa Ana Botanic Garden, pers. comm. 2004), it is unlikely that Fish
Slough milk-vetch occurs outside of that area surrounding the Fish
Slough oasis. Considering this, we conclude that the geographic range
of A. l. var. piscinensis is limited to those disjunct occurrences
within a 6 mi (9.7 km) stretch of alkaline habitat that borders aquatic
habitat in Fish Slough in Inyo and Mono Counties, California. Because
the taxon occurs within a relatively limited area and the alkaline
habitat within the taxon's range forms a relatively continuous feature
in the landscape, we are proposing a single critical habitat unit which
is not separated into smaller, separate units. The critical habitat
unit being proposed for A. l. var. piscinensis includes virtually all
of the known locations of the taxon.
According to a recovery plan that includes Astragalus lentiginosus
var. piscinensis (USFWS 1998), all remaining habitat of the taxon needs
to be conserved. Virtually the entire geographic area which currently
is and potentially can be occupied by the taxon is being proposed as
critical habitat. This is being done because these areas are all
considered essential to the conservation of the species, in accordance
with Section 3(5)(C) of the Act. We have determined, however, that one
privately-owned, 49-acre (20-ha) parcel within the historic range of A.
l. var. piscinensis is not essential for its conservation. That parcel
is in Township 6 South, Range 33 East, section 18 of U.S. Geological
Survey quadrangle map titled Fish Slough. It is highly unlikely that
this area is currently occupied by the taxon and it has little alkaline
soil habitat. In addition, there is no chance that the taxon will be
re-introduced on this property. Therefore, the parcel is not essential
to conservation of the taxon, and is not included in the proposed
The critical habitat units are designed to encompass a large enough
area to support existing ecological processes that may be essential to
the conservation of Astragalus lentiginosus var. piscinensis. Some
upland areas adjacent to the alkaline habitat where A. l. var.
piscinensis occurs could potentially be restored to allow the taxon to
re-occupy historically-occupied areas. Upland areas within 1,000 meters
of the alkaline habitat also provide nest sites and cover for
pollinators, and are important to help minimize the potential to
introduce new non-native plant species that may adversely affect A. l.
var. piscinensis and to control non-native plant species already
present. Because these areas are essential for conservation of the
taxon, we have included them in the proposed critical habitat unit in
accordance with section 3(5)(A)(ii) of the Act.
Determining the geographic boundary of the critical habitat unit
for Astragalus lentiginosus var. piscinensis would be relatively
straightforward if the unit boundary was based only on the presence of
alkaline soils, the Spartina--Sporobolis plant association where Fish
Slough milk-vetch is found, and an upland zone inhabited by the plant's
pollinators. We believe, however, that the long-term maintenance and
recovery of A. l. var. piscinensis is ultimately dependent on the
maintenance of the hydrologic system that promotes the development and
persistence of the alkaline soils and plant communities that A. l. var.
piscinensis is associated with. We believe that adverse changes in the
hydrology of Fish Slough would reduce or eliminate those physical
features essential for the conservation of the taxon.
Delineating a critical habitat unit for Astragalus lentiginosus
var. piscinensis that includes the hydrologic system that supports this
taxon poses significant challenges because the source(s) of the water
that issues from the springs in Fish Slough is not precisely known and
the location of the ground water flow paths between these sources and
the spring orifices in Fish Slough have not yet been determined. Our
current understanding of how pumping activities in Chalfant and Hammil
valleys affects spring discharge rates or the local aquifer in Fish
Slough is not sufficient to clearly illustrate these cause and effect
Because we believe the protection of the hydrologic conditions that
supports the formation and maintenance of alkaline soils is essential
to conserve occupied and suitable unoccupied habitat for Astragalus
lentiginosus var. piscinensis, we have identified these hydrologic
conditions as a primary constituent element in the ``Primary
Constituent Element'' section of this proposed rule even though they
may depend upon sources outside the proposed critical habitat unit
Delineating Critical Habitat
To delineate the critical habitat unit for Fish Slough milk-vetch,
we used a computerized Geographic Information System to overlay various
themes that included the known occurrences of Astragalus lentiginosus
var. piscinensis and the primary constituent elements (see Primary
Constituent Element section above). To map the distribution of A. l.
var. piscinensis, we used information in the California Department of
Fish and Game's Natural Diversity Database (CNDDB 2004) and plant
distribution data from Novak (1992). These two information sources
provide a comparable assessment of the locations of A. l. var.
The upland boundaries of alkaline soils in Fish Slough as depicted
in Ferren (1991a) were then digitized. We digitized the boundaries of
aquatic habitats and meadows mapped in this Ferren (1991a) and included
these within the boundary of the proposed critical habitat unit. These
two habitats do not provide suitable habitat for Astragalus
lentiginosus var. piscinensis; however, they are included within the
proposed unit because the precise boundaries of alkaline habitat in
Fish Slough vary on an annual basis, and small-scale conversions of
wetland habitat to alkaline flat habitat are likely to occur from time
to time. In addition, as this ecosystem is dynamic, we believe that
areas of alkaline soils may convert to wetland habitat. The mapped
boundary based on alkaline soils also corresponds closely with the
distribution of the Spartina--Sporobolis and Chrysothamnus albidus--
Distichlis plant associations which are associated with A. l. var.
piscinensis. The alkaline habitat occupied by A. l. var. piscinensis is
a visually obvious feature of Fish Slough. It is present at elevations
above the low-lying flooded aquatic habitat in Fish Slough and below
the elevated and drier areas dominated by coarse alluvial soils lacking
a white alkaline appearance. The alkaline habitat occupied by the taxon
is dominated by a Spartina--Sporobolis plant association (Odion et al.
1991); the taxon may also occur where a sparse amount of Chrysothamnus
albidus occurs in the transition zone between Spartina--Sporobolis and
Chrysothamnus albidus--Distichlis plant associations. Collectively,
these plant associations form the plant community of which A. l. var.
piscinensis is a part, and are therefore
included in the proposed critical habitat unit in this rule. The higher
elevation areas where A. l. var. piscinensis is absent consist of dry
shadscale scrub communities that are dominated by various species of
Atriplex spp. (saltbush).
Because we have concluded that upland area within 1,000 m (3,280
ft) of the alkaline habitats occupied by Astragalus lentiginosus var.
piscinensis is essential for the taxon's conservation, we delineated a
boundary that includes this distance as measured from the outer edge of
the area that includes occurrences of A. l. var. piscinensis, alkaline
soils, and the Spartina--Sporobolis plant association or transition
zone between Spartina--Sporobolis and Chrysothamnus albidus--Distichlis
plant associations. This boundary delineates the perimeter of the
proposed critical habitat unit.
To provide a legal description of the critical habitat boundary, a
final modification to the boundary described in the proceeding
paragraphs was made. The proposed critical habitat unit boundary
conforms to a Universal Transverse Mercator (UTM) North American Datum
1927 (NAD 27) coordinate system grid with a cell size of 100 m by 100
m. For the modification, those points which define the boundaries of
our initial polygon were moved to an adjacent point lying on the UTM
grid of 100-meter cells. Defining critical habitat boundaries to be
coincident with points on a UTM grid is consistent with current
practice and is intended to simplify interpretation of the coordinates
while diminishing the number of coordinates necessary to define a
This proposed unit thus includes the following: Locations where
pollinators are most likely to nest or obtain cover; some, but not all,
of the surface and subsurface hydrologic features that are necessary to
maintain the soils that are necessary for Astragalus lentiginosus var.
piscinensis germination, growth, reproduction, and dispersal; an area
where the successful exclusion of non-native plant species must take
place in order to safeguard the status of the taxon; the plant
communities that are associated with A. l. var. piscinensis; locations
where the current normal year-to-year variations in surface water are
likely to create new alkaline habitat; and the locations where the
taxon occurred historically and could possibly be restored with active
management. The critical habitat unit proposed constitutes our best
assessment of that area essential to the conservation of A. l. var.
Manmade features within the boundaries of the mapped unit, such as
buildings, roads, parking lots, and other paved areas, do not contain
any of the primary constituent elements for Astragalus lentiginosus
var. piscinensis. Federal actions limited to these areas, therefore,
would not trigger a section 7 consultation, unless they affect the
taxon and/or its primary constituent elements in adjacent critical
habitat. In proposing to designate critical habitat, we made an effort
to avoid the inclusion of such features in proposed critical habitat;
however, critical habitat is not mapped in sufficient detail to exclude
all developed areas, or other lands unlikely to contain the primary
Special Management Considerations or Protection
In 1982, the BLM established the Fish Slough Area of Critical
Environmental Concern (ACEC) in an effort to provide protection for the
federally endangered Owens pupfish (Cyprinodon radiosus), several rare
plant taxa including Astragalus lentiginosus var. piscinensis, and the
wetland and riparian habitats upon which these species depend. The
listing of the Owens pupfish under the Act provides additional
recognition of the need to protect the Fish Slough ecosystem and has
indirectly provided some benefit to A. l. var. piscinensis by raising
the level of management attention that is devoted to Fish Slough.
Conversely, the creation of impoundments and other manipulations of
spring systems in the slough which have been done to manage pupfish
have likely affected the suitability of alkaline meadow habitat that
could be occupied by A. l. var. piscinensis by increasing the length of
inundation in certain areas. A management plan for the ACEC was
finalized in 1984, and the plan has not been revised since it was
completed. Astragalus lentiginosus var. piscinensis was not a listed
taxon when the ACEC management plan was completed.
The Fish Slough ACEC has three zones (BLM 1984). Zone 1 is
approximately 7,961 ac (3,221 ha) in size and is located within the
southeastern portion of the ACEC. Zone 1 encompasses all but the
southern-most occurrences of Astragalus lentiginosus var. piscinensis.
The proposed critical habitat unit is predominantly located within Zone
1 of the ACEC, but also extends slightly beyond the boundary of this
zone to the south and west. The land in this zone is owned by the BLM,
CDFG, LADWP, and one private land owner. Zones 2 and 3 of the ACEC are
located in the Volcanic Tableland area west or northwest of Zone 1, and
collectively measure 27,964 ac (11,317 ha) in size. Zone 2 was included
within the ACEC because this area includes the surface water drainage
up-gradient of Fish Slough, and the area was deemed necessary to
protect the quality and quantify of surface and ground water that
enters Fish Slough. Zone 3 was included within the ACEC because this
area is thought to include an aquifer that affects the hydrology of
A joint management committee composed of representatives of the
LADWP, BLM, the Service, and CDFG provides guidance on ACEC management
issues. The committee meets at least once a year to discuss land
management activities or new developments that have the potential to
adversely affect Astragalus lentiginosus var. piscinensis or other
regionally endemic species or their habitats. The annual meeting
provides a forum that fosters communication, cooperation, and the
coordination of activities among the different committee members.
The suite of factors that affect Astragalus lentiginosus var.
piscinensis is complex. The establishment of the Fish Slough ACEC has
helped provide some benefit for A. l. var. piscinensis by coordinating
the activities of staff from the BLM, LADWP, and CDFG on various land
management challenges which exist in the local area. Because the long,
narrow configuration of the slough is bounded by upland habitat, the
amount of alkaline habitat that can be occupied by A. l. var.
piscinensis is limited. Ferren (1991b) summarizes threats to botanical
resources at Fish Slough, noting that those related to the enhancement
of fisheries (construction of ponds, impoundments, roads, and ditches)
may have had the greatest effect on the Fish Slough ecosystem. In the
central portion of the slough, Fish Slough Lake appears to have
expanded in size between 1944 and 1981. This increase may be due to
natural geologic subsidence, the construction of Red Willow Dam, or the
construction of water impoundments by beavers. The increase in aquatic
habitat has likely resulted in the loss of alkaline habitat for A. l.
var. piscinensis as soils near the lake are now saturated for greater
portions of the year (Ferren 1991c). Some earthquake events in Chalfant
Valley appear to have resulted in decreases in spring discharge or
changes in local water table levels (Brian Tillemans, LADWP, pers.
comm. 2000), thereby making it more difficult to clearly understand the
nature of the local aquifer. Conflicts that arise in the management of
Fish Slough are not easily resolved, and modifications to the slough
environment from changes in the
local hydrology are not well understood or easily reversed. These
factors, in combination with essential data gaps that include, but are
not limited to, a more thorough understanding of the ecology and
habitat requirements of the listed plant taxon have made it difficult
for local land managers to understand and reverse the decline in the
number of A. l. var. piscinensis within the ACEC over the past decade.
The trend in the taxon's abundance during the past decade suggests
that, despite the ongoing efforts of the relevant land management
agencies, additional factors need to be addressed to reverse the
decline in the status of A. l. var. piscinensis.
In 1998, the Service completed the Owens Basin Wetland and Aquatic
Species Recovery Plan Inyo and Mono Counties, California (USFWS 1998).
The document describes the natural history and threats that pertain to
Astragalus lentiginosus var. piscinensis and describes only those
general recovery actions necessary for its delisting. If implementation
of the recovery tasks described in the recovery plan proceeds as
scheduled, the recovery and delisting of A. l. var. piscinensis is
expected to take at least 15 years.
Because Astragalus lentiginosus var. piscinensis is not listed by
the state of California as a rare, threatened, or endangered taxon, and
is not a candidate for state listing as threatened or endangered, the
CDFG does not have an agency management plan that provides
prescriptions designed to conserve or actively manage this taxon. The
agency is, however, signatory to the 1984 Fish Slough ACEC management
Under section 404 of the Clean Water Act (CWA), the U.S. Army Corps
of Engineers (Corps) regulates the discharge of fill into waters of the
United States, including navigable waters, wetlands, and other waters
(33 CFR parts 320-330). The CWA requires project proponents to obtain a
permit from the Corps prior to undertaking activities that would result
in the filling of wetlands subject to the Corps' jurisdiction. These
activities include grading, discharge of soil or other fill material,
etc. Habitat for Astragalus lentiginosus var. piscinensis consists of
alkaline flats adjacent to jurisdictional wetlands under the purview of
section 404 of the CWA. Some protection from wetland fill activity,
such as the construction of new impoundments or diversion structures,
may be afforded by the Corps' regulatory process; however, unless a
population of A. l. var. piscinensis is present within the footprint of
the fill area or zone of construction activities, the impacts of the
project on the taxon (e.g., changes in surface or ground water
hydrology that affect the character and persistence of alkaline
habitat) may not be considered.
Special management considerations or protection may be needed to
maintain the physical and biological features as well as the primary
constituent elements essential to the conservation of Astragalus
lentiginosus var. piscinensis within the unit being proposed as
critical habitat. As noted in the ``Critical Habitat'' section,
``special management considerations or protection'' is a term that
originates in section 3(5)(A) of the Act under the definition of
critical habitat. We believe that the proposed critical habitat unit
may require special management considerations or protections due to the
threats outlined below.
(1) Activities that have the potential to change the hydrology of
Fish Slough and adversely affect the survivorship, seed germination,
growth, or photosynthesis of Astragalus lentiginosus var. piscinensis,
unless such activities are designed and have the effect of recreating
the historic environmental conditions that existed in Fish Slough.
(2) Activities that have the potential to adversely affect the
suitability of alkaline areas that could provide habitat for Astragalus
lentiginosus var. piscinensis including, but not limited to, off-road
vehicle use, levels of cattle grazing which could result in increased
soil compaction, and road construction and maintenance activities.
(3) Activities that have the potential to modify the species
composition, character, or persistence of the native plant associations
that are associated with Astragalus lentiginosus var. piscinensis.
(4) Activities that could adversely affect the insect pollinators
that inhabit the native upland desert scrub community that is adjacent
to alkaline habitats in Fish Slough including, but not limited to,
livestock grazing at levels which would increase soil compaction, use
of heavy-wheeled vehicles or off-road vehicles (including motorcycles
and all terrain vehicles), pesticide use, and incompatible recreational
(5) Management activities, particularly those that involve cattle
grazing and road maintenance, that have the potential to introduce new
non-native plant species that may compete with or displace Astragalus
lentiginosus var. piscinensis.
Relationship to Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that critical habitat shall be
designated, and revised, on the basis of the best available scientific
data available after taking into consideration the economic impact, the
effect on national security, and any other relevant impact, of
specifying any particular area as critical habitat. An area may be
excluded from critical habitat if it is determined, following an
analysis, that the benefits of such exclusion outweigh the benefits of
specifying a particular area as critical habitat, unless the failure to
designate such area as critical habitat will result in the extinction
of the species. Consequently, we may exclude an area from designated
critical habitat based on economic impacts, effects on national
security, or other relevant impacts such as preservation of
conservation partnerships, if we determine the benefits of excluding an
area from critical habitat outweigh the benefits of including the area
in critical habitat, provided the action of excluding the area will not
result in the extinction of the species. In this proposed rule we have
not excluded any lands on the basis of economic impacts.
Further, we conducted an evaluation of other potential impacts that
may result from this designation, including those to national security,
partnerships with local jurisdiction in the development of habitat
conservation plans, conservation agreements, and management plans, as
well as Tribal nations. We determined that the lands within the
designation of critical habitat for Astragalus lentiginosus var.
piscinensis are not owned or managed by the Department of Defense,
there are currently no habitat conservation plans or other management
plans for A. l. var. piscinensis, and the designation does not include
any Tribal lands or trust resources. As such, we have not excluded any
lands from this proposed critical habitat designation based on
potential impacts to these factors.
Proposed Critical Habitat Designation
We propose to designate a single critical habitat unit for
Astragalus lentiginosus var. piscinensis that encompasses approximately
8,490 ac (3,435 ha). Within the proposed unit, the city of Los Angeles
owns four separate parcels that total 2,923 ac (1,183 ha) in area. The
CDFG owns a single 166 ac (67 ha) parcel in the proposed critical
habitat unit. The remaining land within the proposed unit is owned by
the BLM and comprises 5,401 ac (2,185 ha). The
approximate size of the different land ownership areas within the
proposed critical habitat unit is shown in Table 1. Lands managed by
the BLM and LADWP comprise 64 and 34 percent of the total proposed
unit, respectively, with State lands comprising approximately 2
Table 1.--Approximate Areas in Acres (ac) and Hectares (ha) of Proposed Critical Habitat for Astragalus
lentiginosus var. piscinensis by Land Ownership \1\
City of Los State of
Critical habitat unit name Angeles California Federal (BLM) Total
Fish Slough unit................ 2,923 ac.......... 166 ac............ 5,401 ac.......... 8,490 ac
(1,183 ha)........ (67 ha)........... (2,185 ha)........ (3,435 ha)
\1\ Approximate acres have been converted to hectares (1 ha = 2.47 ac).
The proposed Fish Slough critical habitat unit described below
constitutes our best assessment at this time of the area that is
essential for the conservation of Astragalus lentiginosus var.
piscinensis and includes Federal, State, and City lands. The land
within the proposed critical habitat unit contains all of the known
occurrences of A. l. var. piscinensis, alkaline habitat occupied by
this taxon, and the upland areas that provide cover sites for insect
pollinators and require special management to control non-native plant
species. The land within the proposed unit also includes the Spartina--
Sporobolis plant association and Chrysothamnus albidus which is present
in the transition zone between the Spartina--Sporobolis and
Chrysothamnus albidus--Distichlis plant associations. The unit also
includes some of the hydrologic features that we believe are necessary
to promote the persistence and successful recruitment of the listed
This unit boundary overlaps the boundary of Inyo and Mono counties
in the state of California. The northern-most boundary of the proposed
Fish Slough critical habitat unit is located approximately 3,444 ft
(1,050 m) north of Northeast Spring in the northern portion of Fish
Slough. The southern boundary of the proposed unit is approximately 510
ft (155 m) north of the Owens River near an area that is labeled ``Five
Bridges'' on the Fish Slough U.S. Geological Survey 1:24,000 scale
topographic quadrangle. The eastern and western boundaries of the
proposed unit are parallel to, overlap, or are adjacent to the eastern
and western boundaries of Zone 1 of the BLM's Fish Slough ACEC,
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7 of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened and with respect to its
critical habitat, if any is proposed or designated. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402. Section 7(a)(4) of the Act requires
Federal agencies to confer with us on any action that is likely to
jeopardize the continued existence of a proposed species or result in
destruction or adverse modification of proposed critical habitat.
Conference reports provide conservation recommendations to assist the
agency in eliminating conflicts that may be caused by the proposed
action. The conservation recommendations in a conference report are
advisory. If a species is listed or critical habitat is designated,
section 7(a)(2) requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. Through this consultation, the
action agency ensures that the permitted actions do not destroy or
adversely modify critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide reasonable and prudent alternatives to the
project, if any are identifiable. ``Reasonable and prudent
alternatives'' are defined at 50 CFR 402.02 as alternative actions
identified during consultation that can be implemented in a manner
consistent with the intended purpose of the action, that are consistent
with the scope of the Federal agency's legal authority and
jurisdiction, that are economically and technologically feasible, and
that the Director believes would avoid destruction or adverse
modification of critical habitat. Reasonable and prudent alternatives
can vary from slight project modifications to extensive redesign or
relocation of the project. Costs associated with implementing a
reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where critical
habitat is subsequently designated and the Federal agency has retained
discretionary involvement or control over the action or such
discretionary involvement or control is authorized by law.
Consequently, some Federal agencies may request reinitiation of
consultation or conference with us on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat or adversely modify or destroy proposed critical
We may issue a formal conference report if requested by a Federal
agency. Formal conference reports on proposed critical habitat contain
an opinion that is prepared according to 50 CFR 402.14, as if critical
habitat were designated. We may adopt the formal conference report as
the biological opinion when the critical habitat is designated, if no
substantial new information or changes in the action alter the content
of the opinion (see 50 CFR 402.10(d)).
Activities on Federal lands that may affect Astragalus lentiginosus
var. piscinensis or its critical habitat will require section 7
consultation. Activities on private or State lands requiring a permit
from a Federal agency, such as a permit from the Army Corps under
section 404 of the Clean Water Act, a section 10(a)(1)(B) permit from
the Service, or some other Federal action, including funding (e.g.,
Federal Highway Administration or Federal Emergency Management Agency
funding), will also continue to be subject to the section 7
consultation process. Federal actions not affecting listed species or
critical habitat and
actions on non-Federal and private lands that are not federally funded,
authorized, or permitted do not require section 7 consultation.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat include those that appreciably reduce the value of critical
habitat to Astragalus lentiginosus var. piscinensis. We note that such
activities may also jeopardize the continued existence of the species.
To properly portray the effects of critical habitat designation, we
must first compare the section 7 requirements for actions that may
affect critical habitat with the requirements for actions that may
affect a listed species. Section 7 prohibits actions funded,
authorized, or carried out by Federal agencies from jeopardizing the
continued existence of a listed species or destroying or adversely
modifying the listed species' critical habitat. Actions likely to
``jeopardize the continued existence'' of a species are those that
would appreciably reduce the likelihood of the species' survival and
recovery. Actions likely to ``destroy or adversely modify'' critical
habitat are those that would appreciably reduce the value of critical
habitat to the listed species.
Common to both definitions is an appreciable detrimental effect on
both survival and recovery of a listed species. Given the similarity of
these definitions, actions likely to destroy or adversely modify
critical habitat would often result in jeopardy to the species
concerned when the area of the proposed action is occupied by the
Federal agencies already consult with us on activities in areas
currently occupied by the species to ensure that their actions do not
jeopardize the continued existence of the species. These actions
include, but are not limited to:
(1) Activities that disturb or degrade the character of alkaline
soils or hydrology necessary to support wetlands in Fish Slough.
(2) Activities that have the potential to introduce new non-native
plant species to Fish Slough or promote the spread of non-native plant
species that are already present in the local area.
(3) Activities that alter the character of the native plant
associations that co-occur with Astragalus lentiginosus var.
(4) Activities that adversely affect insect pollinators that
facilitate viable seed production in Astragalus lentiginosus var.
(5) Activities on Federal lands (e.g., BLM) or private lands that
require permits from Federal agencies (e.g., the U.S. Army Corps of
Engineers) or use Federal funding (e.g., dollars provided by the
Natural Resource Conservation Service).
(6) Sale or exchange of lands by a Federal agency to a non-Federal
(7) Promulgation and implementation of a land use plan by a Federal
agency such as the BLM that may alter management practices for critical
Activities that may destroy or adversely modify critical habitat
include those that alter the primary constituent elements to an extent
that the value of critical habitat for the conservation of Astragalus
lentiginosus var. piscinensis is appreciably reduced. We note that such
activities may also jeopardize the continued existence of the taxon.
If you have questions regarding whether specific activities will
constitute destruction or adverse modification of critical habitat,
contact the Field Supervisor, Ventura Fish and Wildlife Office (see
ADDRESSES section). Requests for copies of the regulations on listed
wildlife and plants and inquiries about prohibitions and permits may be
addressed to the U.S. Fish and Wildlife Service, Branch of Endangered
Species, 911 N.E. 11th Ave, Portland, OR 97232 (telephone 503/231-2063;
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial data
available and to consider the economic and other relevant impacts of
designating a particular area as critical habitat. We may exclude areas
from critical habitat upon a determination that the benefits of such
exclusions outweigh the benefits of specifying such areas as critical
habitat. We cannot exclude such areas from critical habitat when such
exclusion will result in the extinction of the species.
An analysis of the economic impacts of proposing critical habitat
for the Astragalus lentiginosus var. piscinensis is being prepared. We
will announce the availability of the draft economic analysis as soon
as it is completed, at which time we will seek public review and
comment. At that time, copies of the draft economic analysis will be
available for downloading from the Internet at http://ventura.fws.gov,
or by contacting the Ventura Fish and Wildlife Office directly (see
In accordance with our policy published on July 1, 1994 (59 FR
34270), we will solicit the expert opinions of at least three
appropriate and independent specialists regarding this proposed rule.
The purpose of such review is to ensure that our critical habitat
designation is based on scientifically sound data, assumptions, and
analyses. We will send these peer reviewers a copy of the proposed rule
immediately following publication in the Federal Register. We will
invite these peer reviewers to comment, during the public comment
period, on the specific assumptions and conclusions regarding the
proposed designation of critical habitat.
All comments and information received during the 60-day comment
period on this proposed rule will be considered as we prepare our final
rulemaking. Accordingly, the final designation may differ from this
The Act provides for one or more public hearings on this proposal,
if requested. Requests must be received within 45 days of the date of
publication of the proposal in the Federal Register. Such requests must
be made in writing and be addressed to the Field Supervisor, Ventura
Fish and Wildlife Office (see ADDRESSES section). We will schedule
public hearings on this proposal, if any are requested, and announce
the dates, times, and places of those hearings in the Federal Register
and local newspapers at least 15 days prior to the first hearing.
Clarity of the Rule
Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand, including answers to
questions such as the following:
(1) Are the requirements in the proposed rule clearly stated?
(2) Does the proposed rule contain technical jargon that interferes
with the clarity?
(3) Does the format of the proposed rule (grouping and order of the
sections, use of headings, paragraphing, etc.) aid or reduce its
(4) Is the description of the notice in the SUPPLEMENTARY
INFORMATION section of the preamble helpful in understanding the
(5) What else could we do to make this proposed rule easier to
Send a copy of any comments on how we could make this proposed rule
easier to understand to: Office of Regulatory Affairs, Department of
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You
may e-mail your comments to this address: Exsec@ios.doi.gov.
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues,
but it is not anticipated to have an annual effect on the economy of
$100 million or more or affect the economy in a material way. The
Office of Management and Budget (OMB) has not reviewed this proposed
rule, but intends to review the final rule.
We are preparing a draft economic analysis of this proposed action.
We will use this analysis to meet the requirement of section 4(b)(2) of
the Act to determine the economic consequences of designating the
specific areas as critical habitat and excluding any area from critical
habitat if it is determined that the benefits of such exclusion
outweigh the benefits of specifying such areas as part of the critical
habitat, unless failure to designate such area as critical habitat will
lead to the extinction of the Astragalus lentiginosus var. piscinensis.
This draft economic analysis will be made available for public review
and comment before we finalize this designation. At that time, copies
of the analysis will be available for downloading from the Ventura Fish
and Wildlife Office's Internet Web site at http://ventura.fws.gov or by
contacting the Ventura Fish and Wildlife Office directly (see ADDRESSES
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the Regulatory Flexibility Act (RFA) to require Federal agencies to
provide a statement of the factual basis for certifying that the rule
will not have a significant economic impact on a substantial number of
At this time, the Service lacks the available economic information
necessary to provide an adequate factual basis for the required RFA
finding. Therefore, the RFA finding is deferred until completion of the
draft economic analysis prepared pursuant to section 4(b)(2) of the ESA
and E.O. 12866. This draft economic analysis will provide the required
factual basis for the RFA finding. Upon completion of the draft
economic analysis, the Service will publish a notice of availability of
the draft economic analysis of the proposed designation and reopen the
public comment period for the proposed designation for an additional 60
days. The Service will include with the notice of availability, as
appropriate, an initial regulatory flexibility analysis or a
certification that the rule will not have a significant economic impact
on a substantial number of small entities accompanied by the factual
basis for that determination. The Service has concluded that deferring
the RFA finding until completion of the draft economic analysis is
necessary to meet the purposes and requirements of the RFA. Deferring
the RFA finding in this manner will ensure that the Service makes a
sufficiently informed determination based on adequate economic
information and provides the necessary opportunity for public comment.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2))
In the draft economic analysis, we will determine whether
designation of critical habitat will cause (a) any effect on the
economy of $100 million or more; (b) any increases in costs or prices
for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions; or (c) any significant
adverse effects on competition, employment, investment, productivity,
innovation, or the ability of U.S.-based enterprises to compete with
Executive Order 13211
On May 18, 2001, the President issued an Executive Order (E.O.
13211) on regulations that significantly affect energy supply,
distribution, and use. Executive Order 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
This proposed rule to designate critical habitat for Astragalus
lentiginosus var. piscinensis is considered a significant regulatory
action under Executive Order 12866 in that it may raise novel legal and
policy issues. However we do not anticipate that the proposed
designation of critical habitat for this taxon will significantly
affect energy supplies, distribution, or use because there are no
pipelines, distribution facilities, power grid stations, etc. within
the boundaries of proposed critical habitat. Therefore, we do not
believe that this action is a significant energy action and no
Statement of Energy Effects is required. We will further examine any
potential effect in our economic analysis of this proposal.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute or regulation
that would impose an enforceable duty upon State, local, tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. (At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement.) ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance; or (ii) a
duty arising from
participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities who receive Federal
funding, assistance, permits or otherwise require approval or
authorization from a Federal agency for an action may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Furthermore, to the extent that
non-Federal entities are indirectly impacted because they receive
Federal assistance or participate in a voluntary Federal aid program,
the Unfunded Mandates Reform Act would not apply; nor would critical
habitat shift the costs of the large entitlement programs listed above
on to State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments. The term ``small governmental jurisdiction''
means governments of cities, counties, towns, townships, villages,
school districts, or special districts, with a population of less than
fifty thousand (U.S.C. title 5, part I, chapter 6, section 601). The
lands being proposed for critical habitat designation are owned by the
City of Los Angeles, the State of California, and the Federal Bureau of
Land Management. None of these government entities fit the definition
of ``small governmental jurisdiction''. As such, a Small Government
Agency Plan is not required. We will, however, further evaluate this
issue as we conduct our economic analysis and as appropriate, review
and revise this assessment as warranted.
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for Astragalus lentiginosus var.
piscinensis. This preliminary assessment concludes that this proposed
rule does not pose significant takings implications; however, we have
not yet completed the economic analysis for this proposed rule. Once
the economic analysis is available, we will review and revise this
preliminary assessment as warranted.
In accordance with Executive Order 13132, this rule does not have
significant federalism effects. A federalism assessment is not
required. In keeping with Department of the Interior policies, we
requested information from and coordinated development of this proposed
critical habitat designation with appropriate State resource agencies
in California. The proposed designation of critical habitat in areas
currently occupied by Astragalus lentiginosus var. piscinensis imposes
no additional significant restrictions beyond those currently in place
and, therefore, has little incremental impact on State and local
governments and their activities.
The proposed designation of critical habitat may have some benefit
to the State and local resource agencies in that the areas essential to
the conservation of this species are more clearly defined, and the
primary constituent elements of the habitat necessary to the
conservation of this species are specifically identified. While this
definition and identification does not alter where and what federally
sponsored activities may occur, it may assist local governments in
long-range planning (rather than waiting for case-by-case section 7
consultations to occur).
Civil Justice Reform
In accordance with Executive Order 12988, the Department of the
Interior's Office of the Solicitor has determined that this rule does
not unduly burden the judicial system and does meet the requirements of
sections 3(a) and 3(b)(2) of the Order. We are proposing to designate
critical habitat in accordance with the provisions of the Endangered
Species Act. The rule uses standard property descriptions and
identifies the primary constituent elements within the designated areas
to assist the public in understanding the habitat needs of the
Astragalus lentiginosus var. piscinensis.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This proposed rule does not contain new or revised information
collection for which OMB approval is required under the Paperwork
Reduction Act. Information collections associated with certain Act
permits are covered by an existing OMB approval and are assigned
clearance No. 1018-0094, Forms 3-200-55 and 3-200-56, with an
expiration date of July 31, 2004. Detailed information for Act
documentation appears at 50 CFR 17. This rule will not impose
recordkeeping or reporting requirements on State or local governments,
individuals, businesses, or organizations. An agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
National Environmental Policy Act
We have determined that an Environmental Assessment and/or an
Environmental Impact Statement as defined by 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, as
amended. A notice outlining our reason for this determination was
published in the Federal Register on October 25, 1983 (48 FR 49244).
This proposed rule does not constitute a major Federal action
significantly affecting the quality of the human environment.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of 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. We have determined that
there are no Tribal lands essential for the conservation of Astragalus
lentiginosus var. piscinensis. Therefore, designation of critical
habitat for A. l. var. piscinensis has not been proposed on Tribal
A complete list of all references cited in this proposed rule is
available upon request from the Ventura Fish and Wildlife Office (see
The primary author of this notice is Douglas Threloff in the
Ventura Fish and Wildlife Office staff (see ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
record keeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations as set forth below:
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. In Sec. 17.12(h), revise the entry for ``Astragalus
lentiginosus var. piscinensis,'' under ``FLOWERING PLANTS,'' to read as
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
------------------------------------------------------ Historic range Family Status When Critical Special
Scientific name Common name listed habitat rules
* * * * * * *
Astragalus lentiginosus var. Fish Slough milk- U.S.A. (CA)........ Fabaceae-Pea....... T 647 17.96(a)....... NA
* * * * * * *
3. In Sec. 17.96, amend paragraph (a) by adding an entry for
Astragalus lentiginosus var. piscinensis in alphabetical order under
Family Fabaceae to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Fabaceae: Astragalus lentiginosus var. piscinensis (Fish
(1) The critical habitat unit is depicted for Inyo and Mono
Counties, California, on the map below.
(2) The primary constituent elements of critical habitat for
Astragalus lentiginosus var. piscinensis consist of:
(i) Alkaline soils that occur in areas with little or no slope, and
which overlay a ground water table that is 19-60 in (0.5-1.5 m) below
the land surface;
(ii) Plant associations dominated by Spartina--Sporobolis, or where
a sparse amount of Chrysothamnus albidus occurs in the transition zone
between Spartina--Sporobolis and Chrysothamnus albidus--Distichlis
(iii) Upland areas within 1,000 m (3,280 ft) of the alkaline soils
described in (1), that support sites where the listed plant's
pollinator populations are likely to nest or obtain cover, that require
minimal disturbance and active management to limit the establishment of
non-native plant taxa, and portions of which may be suitable for
restoration and recolonization by Astragalus lentiginosus var.
(iv) Hydrologic conditions that provide suitable periods of soil
moisture and chemistry for Astragalus lentiginosus var. piscinensis
germination, growth, reproduction, and dispersal.
(3) Critical habitat does not include existing features and
structures, such as buildings, roads, parking lots, and other paved
surfaces or areas not containing one or more of the primary constituent
(4) Critical Habitat Map Unit.
(i) Map Unit 1: Fish Slough critical habitat unit, Inyo and Mono
Counties, California. From USGS 1:24,000 quadrangle maps Chidago Canyon
and Fish Slough, California. Lands bounded by UTM Zone 11, NAD 1927
coordinates (E, N): 375800, 4154200, 376100, 4154300; 376500, 4154200;
376700, 4154100; 377000, 4153900; 377200, 4153600; 377300, 4153400;
377400, 4153100; 377400, 4152400; 377300, 4151900; 377200, 4151600;
377300, 4150200; 377200, 4149900; 377100, 4149700; 377000, 4149500;
377300, 4149100; 377400, 4148900; 377500, 4148200; 377500, 4147700;
377400, 4147100; 377300, 4146400; 377200, 4145800; 377100, 4145600;
377000, 4145300; 377000, 4145200; 376900, 4144600; 376900, 4144300;
376900, 4144200; 376800, 4144000; 376800, 4143800; 376900, 4143700;
377100, 4143600; 377500, 4143000; 377500, 4142600; 377400, 4142200;
377100, 4141800; 376500, 4141600; 376100, 4141700; 376000, 4141700;
375600, 4141800; 375200, 4142000; 375000, 4142200; 374800, 4142500;
374700, 4142900; 374600, 4143500; 374500, 4144000; 374600, 4144400;
374700, 4144600; 374700, 4145600; 374800, 4145900; 374900, 4146300;
374900, 4146900; 374800, 4147300; 374700, 4147500; 374400, 4147800;
374000, 4148600; 373800, 4149200; 373700, 4149500; 373800, 4149800;
373800, 4150300, 373900, 4150700; 373900, 4151400; 374000, 4151800;
374100, 4152400; 374200, 4152700; 374400, 4153000; 374500, 4153100;
374800, 4153200; 375000, 4153300; 375100, 4153500; 375200, 4153700;
375400, 4154000; 375700, 4154200; 375800, 4154200; and returning to
(ii) Excluding: 375700, 4143400; 375700, 4142900; 376300, 4142900;
376300, 4143400; returning to 375700, 4143400.
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[GRAPHIC] [TIFF OMITTED] TP04JN04.001
Dated: May 27, 2004.
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-12658 Filed 6-3-04; 8:45 am]
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