53596 Federal Register / Vol. 63, No. 193 / Tuesday, October 6, 1998 / Rules and Regulations a dependent child), and, in the case of ENVIRONMENTAL PROTECTION DEPARTMENT OF THE INTERIOR a child applying for or in receipt of AGENCY pension in his or her own behalf Fish and Wildlife Service (hereinafter in this section referred to as 40 CFR Part 52 a surviving child), of any person with 50 CFR Part 17 whom such child is residing who is [ME014±6994c; A±1±FRL±6172±8] RIN 1018±AB75 legally responsible for such child’s support. Approval and Promulgation of Air Endangered and Threatened Wildlife (b) Obligation to report changes in Quality Implementation Plans; Maine; and Plants; Determination of factors affecting entitlement. Any Source Surveillance Regulation Endangered or Threatened Status for individual who has applied for or Five Desert Milk-vetch Taxa From receives pension must promptly notify AGENCY: Environmental Protection California the Secretary in writing of any change Agency (EPA). AGENCY: Fish and Wildlife Service, affecting entitlement in any of the ACTION: Withdrawal of direct final rule. Interior. following: ACTION: Final rule. (1) Income; SUMMARY: On August 11, 1998, the EPA SUMMARY: The U.S. Fish and Wildlife (2) Net worth or corpus of estate; published a proposed rule (63 FR Service (Service) determines (3) Marital status; 42784) and a direct final rule (63 FR endangered status pursuant to the (4) Nursing home patient status; 42726) approving Maine’s Chapter 117 Endangered Species Act of 1973, as ‘‘Source Surveillance Regulation.’’ The (5) School enrollment status of a child amended, (Act) for three plants— 18 years of age or older; or EPA is withdrawing this final rule due Astragalus jaegerianus (Lane Mountain to adverse comments and will milk-vetch), Astragalus lentiginosus var. (6) Any other factor that affects summarize and address the comments coachellae (Coachella Valley milk- entitlement to benefits under the received in a subsequent final rule vetch), and Astragalus tricarinatus provisions of this part. (based upon the proposed rule cited (triple-ribbed milk-vetch); and (c) Eligibility verification reports. (1) above). threatened status for two plants, For purposes of this section the term Astragalus lentiginosus var. piscinensis DATES: This withdrawal of the direct eligibility verification report means a (Fish Slough milk-vetch), and final rule will be effective October 6, form prescribed by the Secretary that is Astragalus magdalenae var. peirsonii used to request income, net worth, 1998. (Peirson’s milk-vetch). Many taxa in the dependency status, and any other ADDRESSES: Copies of the documents genus Astragalus, including the taxa information necessary to determine or relevant to this action are available for covered by this rule, are endemic to verify entitlement to pension. public inspection during normal habitats with specific substrate or (2) The Secretary shall require an business hours, by appointment at the hydrologic conditions and are, eligibility verification report under the Office of Ecosystem Protection, U.S. therefore, naturally limited in following circumstances: Environmental Protection Agency, distribution by the availability of (i) If the Social Security Region I, One Congress Street, 11th habitat. The five taxa in this rule occur Administration has not verified the floor, Boston, MA and the Bureau of Air in specific habitats within the three beneficiary’s Social Security number Quality Control, Department of deserts of California; the Sonoran, Mojave, and Great Basin deserts. and, if the beneficiary is married, his or Environmental Protection, 71 Hospital Astragalus jaegerianus occurs in her spouse’s Social Security number; Street, Augusta, ME 04333. (ii) If there is reason to believe that granitic soils in San Bernardino County; FOR FURTHER INFORMATION CONTACT: the beneficiary or his or her spouse may A. lentiginosus var. coachellae occurs in have received income other than Social Anne E. Arnold, (617) 565–3166. the dune system of the Coachella Valley in Riverside County; A. lentiginosus var. Security during the current or previous List of Subjects in 40 CFR Part 52 calendar year; or piscinensis grows in moist alkaline flats Environmental protection, Air near the border of Inyo and Mono (iii) If the Secretary determines that counties; A. tricarinatus occurs in an eligibility verification report is pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, canyon slopes and washes in Riverside necessary to preserve program integrity. and San Bernardino counties and A. Particulate matter, Reporting and (3) An individual who applies for or magdalenae var. peirsonii occurs recordkeeping requirements, Sulfur receives pension as defined in § 3.3 of primarily on dunes in Imperial County. this part shall, as a condition of receipt oxides. These five plant taxa are threatened or continued receipt of benefits, furnish Authority: 42 U.S.C. 7401 et seq.. by one or more of the following— the Department of Veterans Affairs an Dated: September 28, 1998. mining, urban development, off- eligibility verification report upon John P. DeVillars, highway vehicle (OHV) use and request, recreational development, pipeline Regional Administrator, Region I. (d) If VA requests that a claimant or maintenance, alteration of a wetland [FR Doc. 98–26789 Filed 10–5–98; 8:45 am] beneficiary submit an eligibility ecosystem, and low recruitment verification report but he or she fails to BILLING CODE 6560±50±P possibly due to rabbit herbivory or do so within 60 days of the date of the altered soil hydrology following fishery VA request, the Secretary shall suspend enhancement activities. Military the award or disallow the claim. training, and cattle grazing are potential threats. Two of the taxa are known from (Authority: 38 U.S.C. 1506) fewer than 200 individuals during the [FR Doc. 98–26781 Filed 10–5–98; 8:45 am] last decade. They are vulnerable to BILLING CODE 8320±01±P extinction from random natural events Federal Register / Vol. 63, No. 193 / Tuesday, October 6, 1998 / Rules and Regulations 53597 or unplanned activities that can destroy spp.). Descriptions of Mojave and discovery in 1992 (Connie Rutherford, a substantial portion of remaining Sonoran Desert plant communities can Service, pers. comm. 1996). At the individuals. This rule implements the be found in Rowlands et al. (1982), northern sites, A. jaegerianus occurs on protection and recovery provisions Thorne (1982), Thorne (1986), Vasek lands managed by the Department of afforded by the Act for these plants. and Barbour (1988), and Burk (1988). Defense (DOD) at the National Training DATES: This rule is effective on The sagebrush-dominated communities Center (NTC) of Fort Irwin, and on November 5, 1998. of the Great Basin Desert are described adjacent lands managed by the Bureau ADDRESSES: The complete file for this by Young et al. (1986) and Holland and of Land Management (BLM). At the rule is available for inspection, by Keil (1990). southernmost site, near Lane Mountain, plants are known to occur on BLM appointment, during normal business Discussion of the Five Taxa hours at the U.S. Fish and Wildlife lands, although Lane Mountain Mesa is Service, Ventura Field Office, 2493 Astragalus jaegerianus (Lane a patchwork of public and private lands. Mountain milk-vetch) was described by Portola Road, Suite B, Ventura, At the northern sites, Astragalus Philip A. Munz (1941) based on a California, 93003. jaegerianus has been found most often specimen he collected ’’. * * * 2 miles in shrub associations where Mormon tea FOR FURTHER INFORMATION CONTACT: south of Jay Mine, about 12 miles south (Ephedra nevadensis) or Cooper Diane Steeck, Botanist, at the above of Goldstone * * *’’ in San Bernardino goldenbush (Ericameria cooperi) are the address (telephone 805/644–1766). County, in April 1941. This species has dominant or subdominant shrub species SUPPLEMENTARY INFORMATION: been consistently recognized by within the larger creosote bush/white Background botanists in floristic treatments (Munz bursage (Larrea tridentata/Ambrosia and Keck 1959, Munz 1974, Spellenberg dumosa) community (Brandt et al 1993). The genus Astragalus, in the pea 1993). At all sites, Astragalus jaegerianus family (Fabaceae), is well represented in Astragalus jaegerianus is a wispy plants are almost exclusively found North America with close to 400 perennial that is somewhat woody at the growing up through shrubs or, species. In California, the genus is base, with stems 30 to 50 centimeters occasionally, through clumps of dead highly diversified in the deserts and (cm) (12 to 20 inches (in)) long, that bunchgrass (Brandt et al 1993; C. surrounding desert ranges. Astragalus often grow in a zigzag pattern, usually Rutherford, pers. comm. 1996). On the jaegerianus (Lane Mountain milk- up through low bushes. Leaves have 7 NTC, Astragalus jaegerianus grows in vetch), Astragalus lentiginosus var. to 15 silvery pubescent linear leaflets, 5 granitic soils that are more coarse, at coachellae (Coachella Valley milk- to 25 millimeters (mm) (0.2 to 1.0 in) least on the surface, than surrounding vetch), Astragalus lentiginosus var. long. The flowers, 5 to 15 per stalk, are soils (Brandt et al 1993). piscinensis (Fish Slough milk-vetch), cream to purple, or lighter with veins of Threats to Astragalus jaegerianus Astragalus magdalenae var. peirsonii a deeper color. The keel petals are less include habitat destruction from dry (Peirson’s milk-vetch), and Astragalus than 10 mm (0.4 in) long. Fruits are wash gold mining, other mining tricarinatus (triple-ribbed milk-vetch) pencil-shaped, linear, smooth, and activities (materials lease mining), rock are adapted to habitats with specific pendant, 16 to 25 mm (0.6 to 1.0 in) and mineral collecting, off-highway substrate or hydrologic conditions in the long. vehicle (OHV) activity, and potentially three deserts that occur in California. After the early collections in 1939 and from increasing fire frequency and any The southernmost desert, the Sonoran 1941, the plant was not collected again associated fire suppression activities. At (or Colorado) Desert, includes the until it was rediscovered in 1985 about the time the proposed rule was being southeastern corner of California and 8 kilometers (km) (5 miles (mi)) north of prepared, military vehicle maneuvers the Coachella Valley, and extends the presumed type locality. A total of 87 occurred in the plant’s habitat. Since southward into Mexico. The Sonoran plants were counted (Mark Bagley, John that time, the military has installed Desert occurs at elevations primarily Chesnut, and Mary DeDecker, in litt. protective fencing; however, trespass by below 600 meters (m) (2,000 feet (ft)), 1985). Intensive surveys over the next military vehicles remains a potential where a diverse mixture of cacti and seven years led to the discovery of a few threat until the efficacy of the fencing succulent plants comprise a significant additional small populations. The most can be determined. In addition, an component of the vegetation. To the recently discovered population, located expansion of the NTC at Fort Irwin onto north of the Sonoran Desert lies the a few miles west of Lane Mountain, surrounding BLM lands has been Mojave Desert, with a transitional zone closely approximates the type locality proposed. Although the location of the between these deserts occurring within (Connie Rutherford, U.S. Fish and expansion has not yet been chosen, the bounds of Joshua Tree National Wildlife Service (Service), in litt. 1992; locations that support A. jaegerianus are Park. The Mojave Desert, at elevations Brandt et al. 1993). being considered. Few individuals primarily between 600 and 1,200 m Currently, Astragalus jaegerianus is combined with the proximity of the (2,000 and 4,000 ft), is characterized by known from four general sites. Three of species to roads and active mining areas the presence of Joshua trees (Yucca the sites occur within an area of about in both the northern and Lane Mountain brevifolia) scattered within creosote 35 square km (14 sq mi) and the plants sites, and to private lands and dwellings bush (Larrea tridentata) scrub. The within each site are widely scattered. at the Lane Mountain site, make A. Great Basin Desert covers most of Fewer than 130 plants have been jaegerianus vulnerable to unplanned, Nevada as well as portions of Utah, located at these three sites in the last potentially destructive, human Idaho, and Oregon. In California, the decade, although repeated searches of activities. In the proposed rule, sheep Great Basin Desert extends from the suitable habitat have been made (J. grazing was considered a minor threat. Oregon border southward along the east Chestnut, M. Bagley, and M. DeDecker, Sheep grazing no longer occurs on the side of the Sierra Nevada range, where in litt. 1985; Brandt et al. 1993; C. lands where A. jaegerianus grows (Tom it intergrades with the Mojave Desert in Rutherford, in litt. 1995). The fourth Eagen, BLM, pers. comm. 1996). southern Owens Valley. The Great Basin site, near Lane Mountain, is located Astragalus lentiginosus was first Desert, at elevations above 1,200 m about 14 km (9 mi) to the south. No described by Sir William Jackson (4,000 ft), is characterized by the more than 30 plants have been found at Hooker (1831) based on a specimen dominance of sagebrush (Artemisia the Lane Mountain site since its collected by David Douglas in the ‘‘. . . 53598 Federal Register / Vol. 63, No. 193 / Tuesday, October 6, 1998 / Rules and Regulations subalpine ranges of the Blue Mountains located within 5 km (3 mi) of Interstate the sand habitats of the Coachella [Oregon] of North-West America.’’ The 10 from north of Indio to Cabazon Valley. Populations of A. lentiginosus species has been placed in three (Barrows 1987, CNDDB 1996, K. var. coachellae have been altered by different genera—Tragacantha Barrows, in litt. 1996). About 20 to 25 development of wind energy parks and lentiginosa (Kuntze 1891), Phaca percent of the occurrences of A. degraded by OHV use (Barrows 1987; K. lentiginosa (Piper 1906), and Cystium lentiginosus var. coachellae are Barrows, pers. comm. 1996). Initially, A. lentiginosum (Rydberg 1913). However, protected in the three preserves of the lentiginosus var. coachellae may these segregate genera have not been Coachella Valley Preserve System. The respond favorably to low-levels of sustained in the literature and this largest preserve protects populations of artificial disturbance, but its long-term species is currently recognized as A. lentiginosus var. coachellae in the response in these situations is unknown Astragalus lentiginosus (Barneby 1945, southeastern part of its range and two (Stevens and Pearson 1984; BLM, in litt. Munz and Keck 1959, Munz 1974, other preserves in the central range of 1992; Pearson in litt. 1993). Spellenberg 1993). The epithet this taxon also support populations. The Astragalus lentiginosus var. lentiginosus means ‘‘freckled’’ and Coachella Valley Preserve System, piscinensis (Fish Slough milk-vetch) refers to its mottled fruit or pod. jointly owned and managed by the BLM, was described by Barneby (1977) based Astragalus lentiginosus var. The Nature Conservancy (TNC), on a collection made by Mary DeDecker coachellae (Coachella Valley milk- California Department of Fish and Game in 1974, from BLM Spring, Fish Slough, vetch) was described by Rupert Barneby (CDFG), California Department of Parks northwest of Bishop. Spellenberg (1993) in Shreve and Wiggins (1964) based on and Recreation, and the Service, was retained this variety in his treatment of a 1913 collection by Alice Eastwood established in 1986 to conserve habitat Astragalus. The plant is a prostrate near Palm Springs, Riverside County. for the federally threatened Coachella perennial, with few-branching stems Prior to publication of this variety, Valley fringe-toed lizard (Uma that are up to 1 m (3 ft) long and are Barneby (1945) had included this taxon inornata), and other taxa endemic to the covered with stiff appressed hairs. The under A. lentiginosus var. coulteri. habitats of the Coachella Valley. None of leaflets are reduced to only 1 to 2 pairs Subsequently, Barneby determined that the plants in the northwestern part of laterally, with a greatly elongated variety coulteri was based upon material the range of A. lentiginosus var. terminal leaflet. The lavender flowers that was quite different, resulting in the coachellae are currently protected, are arranged in loose but short 5-to 12- description of the variety coachellae. although acquisition of habitat in this flowered racemes. The fruits are papery, The recent treatment by Spellenberg region is being considered by the strongly inflated with a complete (1993) supports Barneby’s treatment. Coachella Valley Mountains septum, and are covered with appressed Astragalus lentiginosus var. Conservancy (K. Barrows, pers. comm. hairs. coachellae is an erect winter annual or 1996). About 75 to 80 percent of the Astragalus lentiginosus var. short-lived perennial, 20 to 30 occurrences of A. lentiginosus var. piscinensis is restricted to a 6-mile centimeters (cm) (8 to 12 in) tall and coachellae are located on unprotected stretch of alkaline flats paralleling Fish covered with white-silky hairs. The lands. Of those, about 7 percent are on Slough, a desert wetland ecosystem in flowers are deep pink-purple, in a loose lands owned by Southern California Inyo and Mono counties, California. It or dense 13-to 25-flowered raceme (an Edison, about 7 percent are on lands grows in seasonally moist alkaline flats inflorescence in which stalked flowers owned by the Agua Caliente Indian that support a cordgrass-dropseed are arranged singly along a central Reservation, and the remainder are (Spartina-Sporobolis) association and is stem). The two-chambered fruits are privately owned. absent from nearby lower areas that are strongly inflated. Population sizes vary widely from seasonally flooded (Ferren 1991a; Astragalus lentiginosus var. year to year, depending on Wayne Ferren, University of California coachellae is found on loose wind- environmental conditions, making at Santa Barbara, in litt. 1992). blown or alluvial sands on dunes or assessment of total numbers of Appropriate alkali habitat covers less flats in the Coachella Valley, Riverside individual plants difficult. At sites than 219 ha (540 ac) of the slough and County, California. Barneby (1964) where Astragalus lentiginosus var. portions of this area do not currently described this taxon as ‘‘. . . apparently coachellae was monitored in 1995, support A. lentiginosus var. piscinensis, confined to Coachella Valley . . . ,’’ densities varied from 1.25 plants per for unknown reasons (Ferren 1991, although in 1973, he identified hectare (ha) (.67 plants per acre (ac)) to Odion et al. 1991). specimens collected from an area about 60 plants per ha (24 plants per ac) At the time this taxon was proposed, 80 km (50 mi) to the east, near Desert (Sanders and Thomas Olsen Associates the total number of plants at Fish Center, as A. lentiginosus var. 1995). One of the largest known Slough was thought to be about 700. In coachellae (specimens located at the remaining sites for this taxon occurs in 1992, during intensive surveys of all herbarium of Rancho Santa Ana Botanic the north, near Snow Creek Road. In potential habitat of Astragalus Garden; Gary D. Wallace, Service, pers. 1995, this area supported about 60 lentiginosus var. piscinensis within Fish comm. 1996). Currently, populations are plants per ha (24 plants per ac), the Slough, about 3,200 individuals were known only from the Coachella Valley greatest densities of A. lentiginosus var. found widely scattered or grouped over between Cabazon and Indio (California coachellae found during 1995 surveys approximately 212 ha (530 ac) (Patti Natural Diversity Database (CNDDB) (Barrows 1987, Sanders and Thomas Novak, Los Angeles Department of 1996; Katie Barrows, Coachella Olsen Associates 1995). Water and Power (LADWP), in litt. Mountains Conservancy, in litt. 1996). The primary threat to Astragalus 1992). This first complete, intensive, The historical abundance of lentiginosus var. coachellae is habitat survey for this species was conducted Astragalus lentiginosus var. coachellae destruction due to the extensive urban over several days and covered all in the Coachella Valley is unknown. development occurring in the Coachella suitable alkali habitat at Fish Slough. Twenty to twenty-five ‘‘occurrences’’ of Valley. Urbanization destroys During the survey, several of the A. lentiginosus var. coachellae have populations by direct conversion of the previously monitored sites were found been recorded as extant within the past land on which they occur and by to be much greater in extent than had decade (CNDDB 1996; K. Barrows, in altering or reducing the source and been previously known. However, one litt. 1996) and 90 percent of these are transport of blow sands that maintain site that had supported six plants in Federal Register / Vol. 63, No. 193 / Tuesday, October 6, 1998 / Rules and Regulations 53599 earlier visits failed to support any, and changes have resulted in expansion of The Service is unaware of any another previously recorded site emergent wetland vegetation and information that A. magdalenae var. showed a substantial decline—44 plants conversion of alkali flat habitats which peirsonii occurs elsewhere in the Gran in 1983, 29 in 1985, and 8 in 1992. The support A. lentiginosus var. piscinensis Desierto, and could not locate any four-fold increase in the total number of to other vegetation types (Ferren 1991b; information on size of populations that plants encountered in the 1992 survey Ferren in litt. 1992). Trampling and occur in the Gran Desierto. Although does not suggest an increase or decrease grazing by cattle, and associated Wiggins (1980) included San Felipe, in in population size, but provides the first ecological changes, also potentially central Baja California, within the range comprehensive data on the species-wide threaten this taxon. of this taxon, no collections of variety abundance of A. lentiginosus var. Astragalus magdalenae var. peirsonii peirsonii could be located from that piscinensis. Over 60 percent of this (Peirson’s milk-vetch) was originally region. Botanists preparing a flora for population is located in the northern described as A. peirsonii by Munz and the area have located other varieties of portion of the slough on land owned by McBurney from two collections A. magdalenae from the dunes of the the LADWP and approximately 35 (cotypes) from sand dunes west of Yuma San Felipe area, but not variety peirsonii percent of known A. lentiginosus var. in Imperial County, California (Munz (Jon Rebman, San Diego Museum of piscinensis plants grow in the central 1932). One specimen was collected by Natural History Herbarium, pers. comm. zone of the slough on lands owned and Munz and Hitchcock in 1932, while the 1996). A report of A. magdalenae var. managed by both BLM and LADWP. other was collected by Frank Peirson, peirsonii occurring in the dunes west- About 5 percent are in scattered patches for whom the taxon was named, in southwest of the Salton Sea in Imperial downstream as far as McNally Canal, 1927. Astragalus peirsonii was variously County, California, remains but Fish Slough is narrow at its included with A. crotalariae var. unconfirmed (CDFG, Natural Diversity southern end, with little suitable habitat piscinus (Jepson 1936) and A. niveus Database record 1996). (P. Novak, in litt. 1992; W. Ferren, in (Barneby 1944), before its affiliation Within San Diego County, Astragalus litt. 1992). with A. magdalenae was clarified magdalenae var. peirsonii has not been In 1991, LADWP constructed a 32 ha (Barneby 1958). seen for several decades (M. Astragalus magdalenae var. peirsonii (80 ac) cattle exclosure at the northern Beauchamp, Pacific Southwest is a stout, short-lived perennial reaching end of the slough. In 1992, over 95 Biological Services, pers. comm. 1996). 20 to 70 cm (8 to 27 in) high. The stems percent of the Astragalus lentiginosus Surveys in 1978 failed to locate the and leaves are covered with fine silky var. piscinensis plants in the northern variety in the Borrego Valley where it zone were within the exclosure. Other hairs and the leaves are 5 to 15 cm (2 was originally collected (Spolsky 1978), than the area encompassed by the to 6 in) long, with 3 to 13 small oblong and a portion of the dune habitat in exclosure in the north end of Fish leaflets. The flowers are dull purple, Borrego Valley is currently used as a Slough, lands under LADWP arranged in 10- to 17-flowered racemes county landfill (Jim Dice, CDFG, pers. management that support this taxon are and the resulting pods are 2 to 3.5 cm comm. 1996). A major landowner in the grazed (Paula Hubbard, LADWP, pers. (0.8 to 1.4 in) long, inflated, with a area, the California Department of Parks comm. 1996). Grazing is not permitted triangular beak. The variety peirsonii is and Recreation, does not have any in the habitat of A. lentiginosus var. separated from two other varieties of A. information or reports of this taxon piscinensis on lands managed by BLM, magdalenae based on the number of occurring in Anza Borrego Desert State in the central zone of the slough. leaflets, the length of the peduncles, and Current threats to Astragalus the length and diameter of the fruits. Park (Paul Johnson, Anza Borrego Desert lentiginosus var. picinensis include a With a length of 4.5 to 5.5 mm (0.2 in), State Park, pers. comm. 1996). lack of recruitment in the central zone A. magdalenae var. peirsonii has the The only location where the Service population of Fish Slough, trampling largest seeds of any Astragalus in North could confirm that Astragalus and grazing by cattle, modification of America (Barneby 1964). magdalenae var. peirsonii is extant in wetlands, and alteration of slough Astragalus magdalenae var. peirsonii the United States is on the Algodones hydrology. A long-term threat may be grows in the Sonoran Desert, on the Dunes, an active dune system located the expansion of Fish Slough Lake, slopes and hollows of windblown southeast of the Salton Sea and which may be due to natural geologic dunes. According to Munz and Keck extending south about 2.5 km (1.5 mi) processes or the existence of Red (1959) and Barneby (1964), it is known into Baja California (Westec 1977, BLM Willow Dam, resulting in increased from the Borrego Valley, in San Diego 1987). In 1977, a survey of the sensitive inundation of soils and loss of suitable County, and the Algodones Dunes, in plant taxa of the Algodones Dunes alkali habitat for this taxon (W. Ferren Imperial County, which extend just showed that A. magdalenae var. 1991c, W. Ferren, in litt. 1992). south of the International Border into peirsonii was distributed in what can be Historical alterations of the Fish Slough northeastern Baja California (Westec considered one extensive population of ecosystem to enhance fisheries appear 1977). Since the proposed rule was scattered colonies spanning the length to have caused similar increases in published, the Service has also become of the dune system, primarily along its seasonally flooded habitats, which are aware of collections of A. magdalenae western side. The Algodones Dunes are less suitable for A. lentiginosus var. var. peirsonii from the Gran Desierto in a linear dune system, approximately 64 piscinensis. Modifications include Sonora, Mexico. The specimens from km (40 mi) long and 8 km (5 mi) wide, creation of dams and weirs in the main Sonora were all collected south and supporting several species of plants and slough channel, construction of a dirt southeast of the Sierra Pinacate lava animals that occur only in dune systems road through milk-vetch habitat, and field in the southern Gran Desierto over in the Sonoran Desert (Westec 1977, soil compaction and trail creation by a 15-year period (Richard Felger, BLM 1987). Managed by the BLM, the cattle. These activities have altered the Drylands Institute, pers. comm. 1996; J. Algodones Dunes, also known as the slough hydrology by causing an increase Rebman, San Diego Museum of Natural Imperial Sand Dunes Recreation Area, in permanently flooded habitats, History, pers. comm. 1996; Alan are the most intensively used OHV artificial ponding, alteration in drainage Romspert, California Desert Studies recreation area in California’s deserts, patterns, and changes in seasonal Center, pers. comm. 1996; Gary D. attracting several hundred thousand flooding of milk-vetch habitat. These Wallace, Service, pers. comm. 1996). OHV users each year (BLM 1987). 53600 Federal Register / Vol. 63, No. 193 / Tuesday, October 6, 1998 / Rules and Regulations

The primary threat to Astragalus cm (1.3 to 2.7 in) long, with 17 to 20 Canyon that supported fewer than 10 magdalenae var. peirsonii is destruction leaflets that are silvery strigose on the plants was bulldozed during of individuals and dune habitat from upper surface. The flowers are white or maintenance for a gas pipeline (Barrows OHV use and the recreational pale cream-colored, arranged in loose 6- 1987b). No plants have been found at development associated with it. to 17-flowered racemes. The fruit is that site since 1984, although searches Approximately 75 percent of the narrow, 2 to 4 cm (0.8 to 1.6 in) long, were conducted in 1987, 1992, and 1994 Algodones Dune system is open to glabrous and distinctly three-ribbed. (Barrows 1987b, Carol Jacobsen, in litt. motorized vehicle use (BLM 1987) and Astragalus tricarinatus grows in 1993, Mathews 1994). A. tricarinatus between 75 and 80 percent of all known sandy and gravelly soils in dry washes, also occurs 3 to 4 km (2 mi) farther colonies of A. magdalenae var. peirsonii at the base of canyon slopes, and on down Big Morongo Canyon and within in 1977 are within those areas. The steep scree slopes of decomposed the mouths of two tributary canyons. In greatest concentration of colonies was granite (Barrows 1987b, Sanders and 1992 botanists surveyed this region and located in the central dunes, within a 4- Thomas Olsen Associates 1995). counted 70 plants in 5 groupings mile radius of the southern end of Although A. tricarinatus is a short-lived scattered along a 2 to 3 km (1 to 2 mi) Gecko Road (Westec 1977), an area that perennial, its numbers fluctuate stretch of canyon floor (C. Jacobsen, in has since been more fully developed for significantly from year to year and the litt. 1993). In 1993, 33 plants were recreational use (BLM 1987). Surveyors species may not be present above- counted along this same stretch (Roland in 1977 reported that no seedlings of ground in drought years (Barrows DeGouvenian, BLM, in litt. 1993) and in any of the sensitive plant taxa, 1987b; Robin Kobaly, BLM, pers. comm. 1994 a total of 20 plants in 5 patches including A. magdalenae var. peirsonii, 1996). were found there (Mathews 1994). could be found in areas receiving heavy According to Munz and Keck (1959) In spring of 1995, the Four Corners OHV use (Westec 1977), and large areas the range of Astragalus tricarinatus Pipeline Company conducted receiving intensive OHV use showed a extends from Morongo and Whitewater substantial earth-moving activities along virtually complete loss of all plant cover Pass, located at the north end of the this stretch of Big Morongo Canyon to (Bury and Luckenback 1983). By 1990, Coachella Valley, south to the Orocopia realign segments of a crude oil pipeline colonies of mature A. magdalenae var. Mountains. During the last 2 decades, A. that had been exposed during winter peirsonii plants could not be located in tricarinatus has been located in four storms in 1992–1993 (Service 1995). In areas of heavy OHV use and colonies areas—in the north at Big Morongo 1996, weather conditions appeared poor located in areas receiving moderate Canyon and its tributary canyons; at two for growth of Astragalus tricarinatus. OHV use had lower reproductive nearby locations at Whitewater Canyon BLM staff conducted limited surveys success and poorer health than and Mission Creek; and at a disjunct and found no plants in the canyon, in comparable populations located in areas location about 40 miles to the south in either disturbed or undisturbed areas (R. closed to OHVs (ECOS 1990). Agua Alta Canyon. Kobaly, pers. comm. 1996). Approximately 9,300 ha (23,000 ac), The occurrence of Astragalus Astragalus tricarinatus is threatened or 18 percent, of the Algodones Dunes tricarinatus in Agua Alta Canyon was by maintenance activities for the crude has been closed to motorized vehicle discovered in 1985 by Jon Stewart and oil pipeline which runs through its use since 1972 (BLM 1987). In 1994, consisted of only one plant. The taxon habitat at Big Morongo Canyon and by most of this closed area and an had not been seen during previous vehicle use in the canyons. Its limited extension to the north, a total of 13,060 explorations of this canyon wash nor number of individuals make it ha (32,240 ac) or about 25 percent of the has it been seen since, although the site especially vulnerable to unanticipated dune system, was designated the North was searched the following two years events, such as pipeline leaks, breaks, or Algodones Dunes Wilderness (CDPA (Jon Stewart, in litt. 1985; J. Stewart, emergency repairs. pers. comm., 1996). In the north, 1994; T. Finger, BLM, pers. comm. Previous Federal Action 1996). The wilderness, a linear section Whitewater Canyon is the type locality of the northern dunes, is bounded by an for A. tricarinatus and specimens were Federal action on one of these plants area designated for intensive OHV use collected there in the 1940s, 1960s and began as a result of section 12 of the to the north and by Highway 78 and an mid 1980s (A. Sanders, herbarium of Act, which directed the Secretary of the intensively-used OHV area to the south. University of California at Riverside, Smithsonian Institution to prepare a Approximately 20–25 percent of the pers. comm. 1996). A search of the east report on those plants considered to be known colonies of Astragalus ridge of Whitewater Canyon over several endangered, threatened, or extinct in the magdalenae var. peirsonii occur in the days in 1995 failed to locate a United States. This report, designated as wilderness area (Westec 1977). population there, although a single House Document No. 94–51, was Astragalus tricarinatus (triple-ribbed immature plant was discovered in presented to Congress on January 9, milk-vetch) was described by Asa Gray alluvial sands from the wash (A. 1975, and recommended Astragalus (1876) based on a specimen collected by Sanders, pers. comm., 1996). The jaegerianus for endangered status. The Charles C. Parry at Whitewater Canyon, Mission Creek occurrence is also known Service published a notice in the July 1, Riverside County in 1876. Per Axel from only one plant, discovered during 1975, Federal Register (40 FR 27823), of Rydberg (1927) transferred this species 1995 surveys for this taxon (Sanders and its acceptance of the report as a petition to the segregate genus Hamosa, as H. Thomas Olsen Associates 1995). within the context of section 4(c)(2) of tricarinata. This combination was not Although A. tricarinatus has the the Act (petition provisions are now widely accepted and the species potential to occur in other canyons found in section 4(b)(3)) and of the continues to be listed as A. tricarinatus within its range, populations of greater Service’s intention thereby to review the in floristic treatments (Jepson 1936, than one plant are currently known only status of the plant taxa named therein, Munz and Keck 1959, Shreve and from Big Morongo Canyon and may including Astragalus jaegerianus. The Wiggins 1964, Munz 1974, Spellenberg occur at Whitewater Canyon. Service published a proposal in the June 1993). Astragalus tricarinatus at Big 16, 1976, Federal Register (41 FR Astragalus tricarinatus is a short-lived Morongo Canyon is within the Big 24523) to determine approximately erect perennial, reaching 5 to 25 cm (2 Morongo Preserve, managed by the 1,700 vascular plant species to be to 10 in) in height. Leaves are 7 to 20 BLM. In 1984 one site in Big Morongo endangered species pursuant to section Federal Register / Vol. 63, No. 193 / Tuesday, October 6, 1998 / Rules and Regulations 53601

4 of the Act. Astragalus jaegerianus was Notification of this finding was Summary of Comments and included in the June 16, 1976, Federal published on January 20, 1984 (49 FR Recommendations Register document. 2485). The Act requires that following In the May 8, 1992, proposed rule and General comments received in regard such a warranted but precluded finding, associated notifications, all interested to the 1976 proposal were summarized the petition be recycled pursuant to parties were requested to submit factual in the April 26, 1978, Federal Register section 4(b)(3)(C)(i). The finding was reports or information that might (43 FR 17909). The Act Amendments of reviewed in October of 1984, 1985, contribute to the development of a final 1978 required that all proposals over 1986, 1987, 1988, 1989, 1990, and 1991. rule. A 60-day comment period closed two years old be withdrawn. A one-year Publication of the proposed rule on July 7, 1992. A final determination grace period was given to those constituted the warranted finding for on the proposal was delayed by other proposals already more than two years the petitioned taxa. listing priorities, a limited budget, and old. In the December 10, 1979, Federal On May 8, 1992, the Service the Federal moratorium on final listing Register (44 FR 70796), the Service published a proposed rule in the published a notice of withdrawal of the Federal Register (57 FR 19844) to list actions. Due to the amount of time that June 6, 1976, proposal, along with four seven Astragalus taxa, including the five had passed since the proposed rule was other proposals that had expired. taxa addressed in this rule. Astragalus published, the Service opened a second The Service published an updated jaegerianus and A. magdalenae var. comment period for 45 days on Notice of Review for plants in the peirsonii were included in the proposal September 3, 1996 (61 FR 46430). December 15, 1980 Federal Register (45 on the basis of new information Appropriate State and Federal agencies, FR 82480). This notice included gathered during surveys performed in County governments, scientific Astragalus jaegerianus, A. lentiginosus 1990 and 1991 that resulted in their organizations, and other interested var. coachellae, A. lentiginosus var. elevation to category 1 candidate status. parties were contacted and requested to piscinensis, and A. magdalenae var. Astragalus tricarinatus was included in comment. During the comment periods peirsonii as category 1 candidate species the proposal after a review of existing newspaper notices were published in (species for which information in the information indicated that the species the Palm Springs Desert Sun (June 4, Service’s possession was sufficient to should be elevated to category 1 1992; October 5, 1996), the Imperial support proposals for listing). On candidate status and that listing was Valley Press (May 28, 1992; October 3, November 28, 1983, the Service warranted. The taxa included in the 1996), the San Bernardino Sun (June 2, published in the Federal Register a proposed rule but not addressed in this 1992; October 7, 1996), the Barstow supplement to the Notice of Review (48 document, A. lentiginosus var. micans Desert Dispatch (October 3, 1996), and FR 53640), in which A. jaegerianus and and A. lentiginosus var. sesquimetralis, the Inyo Register (May 29, 1992; October A. magdalenae var. peirsonii were are being withdrawn and are addressed 2, 1996), inviting public comments on included as category 2 candidate species in a separate document published the proposed rule. (species for which information in the concurrently in the proposed rule Peer Review Service’s possession indicated listing section of this issue of the Federal may be appropriate, but for which Register. In accordance with the interagency additional information was needed to The processing of this final rule Peer Review Policy published on July 1, support a proposed rule). The plant conforms with the Service’s Final 1994 (59 FR 34270), the Service notice was again revised on September Listing Priority Guidance for Fiscal Year solicited the expert opinions of three 27, 1985 (50 FR 39526), and on February (FY) 1998 and 1999, published in the independent specialists regarding 21, 1990 (55 FR 6184). In both of these Federal Register on May 8, 1998 (63 FR pertinent scientific or commercial data notices, both varieties of Astragalus 25502). The guidance clarifies the order and assumptions relating to the lentiginosus were included as category 1 in which the Service will process taxonomy, population estimations, and candidate species, while A. jaegerianus rulemakings. The guidance calls for supportive biological and ecological and A. magdalenae var. peirsonii were giving highest priority to handling information for taxa under included as a category 2 candidate emergency situations (Tier 1), the consideration for listing. The purpose of species. Astragalus tricarinatus was second highest priority (Tier 2) includes such review is to ensure listing included in the February 21, 1990, actions to—resolve the listing status of decisions are based on scientifically notice for the first time as a category 2 the outstanding proposed listings, sound data, assumptions, and analyses, candidate (the use of candidate process new proposals to add species to including input of appropriate experts categories has subsequently been the lists, and process administrative and specialists. Two specialists discontinued by the Service (55 FR petition findings on petitions to list, responded and their comments on the 7596)). delist, and reclassify species. This final biology, population numbers and sizes, Section 4(b)(3)(B) of the Act requires rule for five desert milk-vetch species and threats, have been incorporated into the Secretary to make certain findings from California falls under Tier 2. The this rule and the concurrently published on pending petitions within 12 months species discussed in this rule face high withdrawal. of their receipt. Section 2(b)(1) of the magnitude threats to their continued During the two comment periods, the 1982 amendments further requires that existence. Tier 3 includes processing of Service received comments from 23 all petitions pending on October 13, critical habitat designations. parties addressing the listing of the 7 1982, be treated as having been newly Comments received during the taxa included in the proposed rule. submitted on that date. This was the original comment period and the re- Twelve commenters supported some or case for Astragalus jaegerianus because opening of the public comment period all of the proposed action, six the 1975 Smithsonian report had been in September 1996 (61 FR 46430) for the commenters opposed some or all of the accepted as a petition. On October 13, proposed rule have resulted in new proposed action, and five commenters 1983, the Service found that the information that has been incorporated provided information or raised issues petitioned listing of this species was into this final rule and the concurrently about which they were concerned. warranted, but precluded by other published withdrawal for two of the Technical information provided by pending listing actions, in accordance species originally proposed for listing in commenters has been incorporated into with section 4(b)(3)(B)(iii) of the Act. 1992. this rule where appropriate. Comments 53602 Federal Register / Vol. 63, No. 193 / Tuesday, October 6, 1998 / Rules and Regulations have been organized into specific issues. Service Response: The Service intentions of the current managing These issues and the Service’s response acknowledges that agricultural discing committee for the Fish Slough ACEC, to each issue are summarized as follows. is not currently known to be a threat to the threats facing the limited number of Issue 1: Two commenters were this taxon. Vehicle use has, and individuals of A. lentiginosus var. concerned that the listing of varieties is continues to result in the loss of some piscinensis are important enough to improper and constitutes a misuse of habitat for Astragalus lentiginosus var. warrant its listing as threatened. the Act. One of these commenters piscinensis south of BLM Spring, on the A draft Owens Basin Wetland and elaborated that since subspecies contain east side of the Slough, where a road Aquatic Species Recovery Plan was the same genetic makeup as the species currently bisects one population (BLM, produced by the Service in 1996 that with a slight variation, ‘‘(i)f we save the in litt. 1993; Diane Steeck, Service, pers. addressed Astragalus lentiginosus var. species as a whole, we will have the obs. 1996) and there has been some piscinensis, two endangered fish genetic basis from which the subspecies OHV use of the area noted in the west- species, and selected species of concern. evolved.’’ central area of the Slough as recently as Public and agency comment on this Service Response: Section 3(16) of the 1992 (P. Novak, in lit. 1992). The soil plan was solicited during two public Act states that ‘‘(t)he term ‘species’ compaction and topographical changes comment periods—August 26, 1996, to includes any subspecies of fish or caused by roads can alter flooding and October 25, 1996, and January 13, 1997, wildlife or plants . . . which interbreeds draining of slough habitats, resulting in to April 14, 1997. The Service is when mature.’’ In response to concerns changes in length of seasonal currently revising the recovery criteria from the Smithsonian Institution that inundation to which the milk-vetch is and discussion of A. lentiginosus var. the definition included subspecies but subjected. Mazer and Travers (1992) and piscinensis to more accurately reflect not varieties, the Service discussed in a Novak (in litt. 1992) have documented the current knowledge of the species’ Federal Register notice published on substantial herbivory of the flowers and status and the activities needed to April 26, 1978 (43 FR 17912), the fruit of A. lentiginosus var. piscinensis ensure its protection and recovery in the common use of both terms by botanists, at Fish Slough. Fish Slough ecosystem. Additional and concluded that plants named as The Service recognizes the efforts of discussions of Astragalus lentiginosus ‘‘varieties’’ are essentially subspecies all agencies involved in the var. piscinensis are included under the and, therefore, ‘‘species’’ as defined in establishment of the Fish Slough ACEC ‘‘Summary of Factors Affecting the the Act. and those cooperating in the Species’’ section of this final rule. management of the ACEC. However, the Issue 4: Two commenters in 1992 Issue 2: Two commenters asserted suite of factors that threaten Astragalus suggested that livestock grazing is that insufficient data are presented in lentiginosus var. piscinensis are compatible with maintaining the proposal on which to base the listing complex. Because of the long narrow populations of Astragalus lentiginosus of these plants. One of these configuration of the Slough, bounded by var. piscinensis and one commenter, in commenters believed that not enough uplands on both sides, the specific 1996, stated that the Service did not information was presented about the alkali wetland habitat required by A. provide adequate evidence to support biology of the species and that lentiginosus var. piscinensis is limited. the conclusion that grazing was a threat information concerning the types of Human activities or natural changes in to this taxon. In 1996, one of the parties OHV activity that threaten the taxa the landscape that cause an increase in used data collected by biologists from should be described more thoroughly. the area of seasonal flooding of alkali the grazed and ungrazed areas on Service Response: Section 4 of the Act habitat have decreased the habitat LADWP lands to conclude that, from directs the Service to use the best suitable for this taxon, which tolerates 1991 to 1996, ‘‘(t)he areas grazed by scientific and commercial data available seasonally moist, but not flooded soils. livestock show an 8 percent increase in in preparation of proposed and final Monitoring conducted by the BLM vetch [sic] populations.’’ and ‘‘(t)he rules. After reviewing new information suggests a lack of recruitment in one ungrazed area shows a 42 percent available since the original proposal was population of A. lentiginosus var. reduction in vetch [sic] numbers.’’ published and reevaluating existing piscinensis in the central region of Fish Service Response: The LADWP information, the Service is withdrawing Slough. The reasons for this are as yet gathered population trend data from 5 the proposals to list two of the taxa unexplained, but may include rabbit plots (radius 3.6 m (11.8 ft)) in the Fish included in the proposed rule. For the herbivory or larger landscape changes Slough ecosystem from 1991 to 1996 five taxa being listed in this final rule, (alterations in soil hydrology or (LADWP, in litt. 1996; Paula Hubbard, the Service has presented adequate chemistry) that result in a decline in LADWP, pers. comm. 1996). Two plots detail to indicate the types of activities habitat suitability. are located in the cattle exclosure in that threaten these taxa and to discuss The Service recognizes the efforts of north Fish Slough and have been their biology. Readers wishing the LADWP to protect Astragalus inaccessible to cattle since 1991, one additional detailed information should lentiginosus var. piscinensis from the plot is north of this exclosure in a refer to the documents cited in the text. direct effects of trampling in the north pasture that receives cattle use, and two Issue 3: Two commenters expressed region of the Slough by constructing a more are in the middle region of Fish the opinion that the listing of Astragalus fenced exclosure, and commends the Slough, north of BLM Spring, in an area lentiginosus var. piscinensis is efforts of the BLM and LADWP to also used by cattle. unnecessary because sufficient monitor the status of the plant. The The monitoring data indicate that the protection from grazing and OHV use Service also recognizes that conflicts total number of plants in the three plots was provided by the multi-agency that arise in the management of the from the grazed area consisted of 16 management of the Fish Slough Area of Slough have not been easily resolved in seedlings, 24 mature plants, 0 immature Critical Environmental Concern (ACEC). the past and that the past modifications plants in 1991 and 14 seedlings, 25 One commenter stated that no data of the slough environment have caused mature plants, 4 immature plants in exists documenting that the species is changes in the hydrology that are not 1996. Plots in the ungrazed exclosure threatened by OHV use, agricultural well understood nor easily returned to supported 56 seedlings, 72 mature discing, predation by rabbits, and their original condition. The Service plants, 0 immature plants in 1991 and groundwater pumping. maintains that despite the best 0 seedlings, 83 mature plants, 1 Federal Register / Vol. 63, No. 193 / Tuesday, October 6, 1998 / Rules and Regulations 53603 immature plant in 1996. In arriving at number of monitoring plots in both Issue 6: One commenter speculated the stated percentage increases and grazed and ungrazed areas to help that the proposed rule had been declines the commenter used counts of clarify the relationship between cattle promulgated to fulfill the requirements total plants. Typically, when biologists grazing and population dynamics of A. of a settlement resulting from the suit analyze simple changes in the sizes of lentiginosus var. piscinensis. The filed against the Service by the plant populations, they focus on Service remains concerned about the California Native Plant Society (CNPS). changes in the number of mature effects of cattle grazing on the alkali Service Response: The procedures for individuals (plants of reproductive size wetland habitat that supports A. designating species as threatened or or age). Seedlings are typically not lentiginosus var. piscinensis, including endangered are outlined in section grouped with mature plants because it the potential for grazing to cause 4(a)(1) of the Act and promulgated is common for many more seedlings to changes in the composition of the plant regulations (50 CFR part 424). As emerge initially than will survive to community or maintain changes that discussed in detail in the ‘‘Background’’ reproduce. have already occurred, and the potential section of this rule, Federal action on In the data described above, from for the creation of cattle trails to alter several of these taxa began as early as 1991 to 1996 the combined number of the topography and change drainage 1975. The proposed rule did, in fact, mature Astragalus lentiginosus var. patterns. comply with the terms and conditions piscinensis plants increased by 1 in the Issue 5: One commenter suggested of the settlement stemming from the grazed plots (from 24 to 25 plants, a 4 that listing Astragalus lentiginosus var. CNPS suit. While the CNPS lawsuit percent increase) and increased by 11 coachellae would be unnecessary if a settlement may have accelerated the rate individuals in the ungrazed plots (from conservation plan for that species could at which species were proposed for 72 to 83 plants, a 15 percent increase). be developed, perhaps by incorporating listing, the suit did not address final These data show a slight increase in it into the management of the existing determinations, nor did it change the numbers of mature plants in grazed Coachella Valley Preserve. standards by which species are plots and a larger increase in the Service response: The Coachella evaluated for potential listing. Issue 7: Two commenters expressed number of mature individuals in Valley Preserve System, established ungrazed plots from 1991 to 1996. concern over potential land use primarily to protect the Coachella Several aspects of the data illustrate the restrictions where listed species occur. Valley fringe-toed lizard (Uma need for a longer monitoring period One of these commenters stated that the inornata), contains populations of before drawing conclusions, however. listing of these plants ’’. . . would result Astragalus lentiginosus var. coachellae First, in both grazed and ungrazed areas in large acreage throughout the west on three preserve lands in the south and the multiple plots failed to show being ‘‘locked up’’ to preserve these central range of this taxon. No consistent trends; that is, of the two forbs or weeds.’’ The other commenter populations in the northern range of A. ungrazed plots, one showed an increase believed that the Service’s true intent is lentiginosus var. coachellae are in the number of mature plants from ’’. . . full control over land management currently protected. Within the last two 1991 to 1996, the other a decrease. A activities . . .’’ on private, as well as similar situation occurred in the grazed years, the Coachella Valley Association public lands. plots. The small number of plots of Governments and the Coachella Service Response: Listing of plant sampled make the data very susceptible Valley Mountains Conservancy have species under the Act triggers the to site differences that may result from begun a planning process to address protective measures of section 9 of the environmental conditions other than conflicts between conservation needs Act, including prohibiting the grazing. Secondly, numbers of plants and economic development within a collection, destruction, or damaging of within a single plot fluctuated from year 4500sq km (1,850 sq mi) area that these species on any area if it is in to year; that is, none of the five plots includes the Coachella Valley and knowing violation of any State law (see showed a consistently increasing or surrounding region in Riverside County. the ‘‘Available Conservation Measures’’ consistently declining trend. In this The expected result of this process, a section of this rule for a complete situation, using only two years of data Coachella Valley Multispecies Habitat discussion). In addition, the Act from the data set (for example, Conservation Plan (CVMSHCP), will requires that Federal agencies, in considering only the years 1991 and address conservation needs for 12 consultation with the Service, insure 1996) can lead to erroneous species that are listed or proposed for that activities they authorize, fund, or conclusions. These data suggest that listing, 21 candidate species, and 17 carry out are not likely to jeopardize the population growth is occurring in the additional species of concern. continued existence of any listed north Fish Slough Area and north of Astragalus lentiginosus var. coachellae species, or destroy or adversely modify BLM Springs in both grazed and is to be addressed in the plan. its critical habitat, if any is designated. ungrazed areas. This potential growth is The Service recognizes the Thus for any activity on private land important, since recruitment has not importance of such a planning process requiring Federal action (such as a been observed in one area in the central for the Coachella Valley and is section 404 permit under the Clean zone of the Slough that BLM has participating through the Scientific Water Act (33 U.S.C. 1251–1376)) that monitored since 1991. Advisory Committee, as are other may affect listed species, the Federal The Service concludes that data agencies responsible for resource action agency is required to enter into collected by LADWP do not protection in the area. The planning the section 7 consultation process with conclusively demonstrate that process is in its initial stages, however, the Service. Astragalus lentiginosus var. piscinensis and its funding is not secured, nor is a These protections afforded to plants plants located in plots in the grazed product yet available that can be listed under the Act do not ‘‘lock up’’ areas fared any better or worse than implemented. Thus, development of the private land. Conservation measures those in the ungrazed exclosures during CVMSHCP does not provide current and recovery planning for these species the past five years. If cattle grazing will protection for Astragalus lentiginosus rarely include recommendations for continue in habitat for A. lentiginosus var. coachellae and is not sufficient to land acquisition or easements involving var. piscinensis at Fish Slough, the preclude the need to list the species at private landowners. These efforts would Service recommends increasing the this time. be undertaken with the cooperation of 53604 Federal Register / Vol. 63, No. 193 / Tuesday, October 6, 1998 / Rules and Regulations the landowners. In most cases, private Rights.’’ The Attorney General has removal of vegetation as surface soils landowners are not precluded from issued guidelines to the Department of are mined. Mining that falls under the utilizing their land in the manner the Interior (Department) regarding definition of ‘‘casual use’’ also can originally intended. TIAs. The Attorney General’s guidelines destroy the habitat of A. jaegerianus in Issue 8: One commenter questioned state that TIAs used to analyze the the Lane Mountain area. ‘‘Casual use’’ whether the listing of these plants could potential for Fifth Amendment taking mining is small scale recreational be justified in light of the numerous claims are to be prepared after, rather mining that can be carried out by a species already listed and the thousands than before, an agency makes a claim holder without submission of any more that are candidates for listing, and restricted discretionary decision. In plan or notice to BLM. In 1993, questioned what benefit there would be enacting the Act, Congress required the Coolgardie Mesa experienced a sharp to mankind in saving these species. The Department to list a species based solely increase in recreational gold mining. commenter pointed out that because upon scientific and commercial data. Within a few miles of the Lane ‘‘the law of the land is survival of the The Service may not withhold a listing Mountain population of A. jaegerianus, fittest,’’ certain species were not meant decision based upon economic the BLM recorded 300 to 400 people to survive forever and a niche vacated concerns. Therefore, any TIA that may mining within a 2.5 sq km (1 sq mi) area by one species would be taken over by be required for a listing action would be during a single weekend. Joshua trees another. prepared only after the final (Yucca brevifolia) and other vegetation Service Response: In enacting the Act determination to list a species has been were uprooted and destroyed in this in 1973, Congress recognized that made. process (T. Eagen, pers. comm. 1996). ‘‘various species of fish, wildlife, and The BLM has since developed plants in the United States have been Summary of Factors Affecting the Species guidelines to limit activities that fall rendered extinct as a consequence of under the definition of ‘‘casual use’’ economic growth and development Section 4 of the Act and regulations mining. Under the new definition, untempered by adequate concern and (50 CFR part 424) promulgated to ‘‘casual use’’ mining is limited to the conservation.’’ It further stated ‘‘these implement the listing provisions of the use of non-mechanized tools and cannot species of fish, wildlife, and plants are Act set forth the procedures for adding result in the destruction of perennial of aesthetic, ecological, educational, species to the Federal lists of vegetation. This still permits the digging historical, recreational, and scientific endangered and threatened species. A of mining pits and soil surface value to the Nation and its people.’’ species may be determined to be an disturbance that degrade habitat and endangered or threatened species due to Although it is true that extinction is a could impact A. jaegerianus. Past one or more of the five factors described natural process, it is human-caused disturbance has also resulted in an in section 4(a)(1). These factors and extinction that the Act is attempting to increase in non-native annual grasses in minimize. A number of studies have their application to Astragalus the area (T. Eagen, pers. comm. 1996) estimated rates of extinction throughout jaegerianus Munz (Lane Mountain milk- and this ongoing small scale disturbance geologic time and, more recently, since vetch), A. lentiginosus Douglas ex Hook. provides new opportunities for further the influence of European man. The var. coachellae Barneby (Coachella invasions of these highly competitive studies indicate that rates of extinction Valley milk-vetch), A. lentiginosus species. The sites where A. jaegerianus over the past 200 years are unparalleled Douglas ex Hook. var. piscinensis occurs on BLM land to the north, while in human history, and extinction rates Barneby (Fish Slough milk-vetch), A. not currently under claim, are available are continuing to increase (Reid and magdalenae Greene var. peirsonii for claim, should mining interest renew Miller 1989, Raven 1993). The Service (Munz & McBurney in Munz) Barneby in that area (J. Aardahl, BLM, pers. concludes that proceeding with this (Peirson’s milk-vetch) and A. comm. 1997). Additional discussion of listing action is within the intent of the tricarinatus A. Gray (triple-ribbed milk- mining regulations can be found under Act. vetch) are as follows: Issue 9: One commenter stated that Factor D of the ‘‘Summary of Factors the Service must prepare an A. The Present or Threatened Affecting the Species Section’’ of this Environmental Impact Statement (EIS) Destruction, Modification, or rule. and a Takings Implication Assessment Curtailment of Its Habitat or Range. To the north, Astragalus jaegerianus before issuing a final rule. All five taxa are threatened by loss of is also threatened by proliferation of Service response: For the reasons set habitat due to one or more of the OHV trails/tracks and cross country out in the National Environmental following factors—mining, urbanization vehicle travel associated with decorative Policy Act (NEPA) section of this in the form of commercial and rock extraction, the potential for other document, the Service has determined residential development, motorized mining exploration, and general that the rules issued pursuant to section vehicle recreation and unauthorized recreation. Although the extraction 4(a) of the Act do not require the motor vehicle use, pipeline activity is by permit through BLM, preparation of an EIS. In Pacific Legal maintenance activities, and loss of permit violations, including cross Foundation v. Andrus, 657 F.2d 829 habitat due to modifications of a country vehicle travel and rock (6th Circuit 1981), and subsequent wetland ecosystem. extraction outside the bounds of the cases, the Federal courts have held that Astragalus jaegerianus is threatened permitted area occurred numerous times an EIS is not required for listing under by dry wash gold mining at the Lane in 1995–1996, within and adjacent to A. the Act. The Sixth Circuit decision Mountain site and potentially by a jaegerianus habitat (T. Eagen, pers. noted that preparing an EIS on listing materials lease mining operation at one comm. 1996). At least one of the actions does not further the goals of northern site on BLM lands. The populations of A. jaegerianus in the NEPA or the Act. majority of Lane Mountain Mesa, where north is already bisected by a road Takings Implications Assessments A. jaegerianus occurs, and all of the (Bagley, in litt. 1985), and other roads/ (TIAs) are prepared pursuant to the adjacent Coolgardie Mesa, are covered trails adjacent to the population are a requirements of Executive Order 12630, by mining claims (BLM in litt. 1992; T. concern. Recreational vehicle activity is ‘‘Government Actions and Interference Eagen, pers. comm. 1996). Dry wash also causing a proliferation of tracks with Constitutionally Protected Property gold mining operations result in through potential habitat just south of Federal Register / Vol. 63, No. 193 / Tuesday, October 6, 1998 / Rules and Regulations 53605 the northern populations. At the Lane The historical loss of populations of enhancement of fisheries (construction Mountain site, tracks have been seen Astragalus lentiginosus var. coachellae of ponds, impoundments, roads, and near A. jaegerianus habitat. The area is is not known. Since 1986, two ditches) have resulted in the greatest laced with roads, and the majority of occurrences and part of a third, located losses to this taxon’s specific alkali this small population occurs within adjacent to roads on private land in the habitats. Because of the long narrow about 100 m (300 ft) of a road, with southern part of this taxon’s range, have configuration of the Slough, bounded by some plants within 5 m (15 ft) of the been repeatedly graded and curbs have uplands on both sides, this alkali road (C. Rutherford, pers. comm. 1996). been laid over portions of what was wetland habitat is limited in extent. In Within habitat for Astragalus previously suitable habitat. Although the west-central zone of Fish Slough, jaegerianus on DOD lands, military they have not been resurveyed, these Fish Slough Lake is expanding, perhaps maneuvers at the NTC at Fort Irwin, or sites are degraded to the extent that they due to natural geologic subsidence and/ National Guard training in 1992, may are unlikely to support viable or construction of Red Willow Dam, have destroyed plants (Steve Ahmann, populations of A. lentiginosus var. resulting in loss of suitable habitat for NTC, in litt. 1993). Following this coachellae. A fourth occurrence, in the A. lentiginosus var. piscinensis as the incident and the publication of the same region, was found to support no soils become increasingly saturated for proposed rule, the military constructed plants in 1987, although suitable habitat greater portions of the year (Ferren a wire fence to restrict vehicle access still remained at the site. By 1996, this 1991c; W. Ferren, in litt. 1992). Other from 260 ha 650 ac in 1993, which site had been converted to a truck stop impoundments created in the past, some includes all of the A. jaegerianus plants and suitable habitat had been for the protection of endangered fish known on military lands (S. Ahmann, in eliminated (Barrows 1987; K. Barrows, habitat, have similarly altered the local litt. 1993). No breaches of the fence have in litt. 1996; K. Barrows, pers. comm. hydrology (BLM 1984; Ferren 1991; occurred in the past 2 years, although a 1996). BLM in litt. 1993). military vehicle breached the fence Urbanization and development, like Astragalus magdalenae var. peirsonii three years ago (Ahmann, pers. comm. that occurring in the Coachella Valley, is currently known to be extant in the 1996). The military currently uses these result in both direct loss of populations United States only within the fenced lands only for compass and the restriction of populations to Algodones Dunes, where it is threatened orienteering exercises. Impacts to this fragments of suitable habitat. As areas by increasing habitat loss from OHV use taxon from military training may are increasingly developed, these and associated recreational increase following the expansion of the habitat fragments, especially those development. Approximately 75 percent NTC at Fort Irwin. Although the size adjacent to roads, may be degraded by of the dune system, supporting 75 to 80 and location of the expansion has not vehicle use or roadside maintenance percent of the colonies of A. been decided, it may encompass several activities and are often subsequently magdalenae var. peirsonii, as mapped in hundred square miles of BLM lands paved over or landscaped. Secondary 1977, are open to OHV recreation within including those which support A. impacts to Astragalus lentiginosus var. the Imperial Sand Dunes Recreation jaegerianus. coachellae associated with increased Area (Westec 1977, BLM 1987). Between Astragalus lentiginosus var. urbanization include habitat damage 1977 and 1985, OHV use in the Imperial coachellae (Coachella Valley milk- from OHV use. OHV use has eliminated Sand Dunes Recreation Area increased vetch) is currently known from fewer plants from a portion of one population by over 60 percent (BLM 1987). With than 25 occurrences in the Coachella in the northern part of the range of this Valley. Habitat destruction in the variety where a commercial OHV rental the rising popularity of all-terrain Coachella Valley began with the operation exists. Plants are now found vehicles and the expanding human introduction of agriculture over a only on the margins of this site (K. population in southern California, use is century ago, but urbanization has Barrows, pers. comm. 1996). expected to more than double from 1985 accelerated greatly in the past 40 years. Astragalus lentiginosus var. to the year 2000 (BLM 1987). The most In the 20 years from 1970 to 1990, the piscinensis is currently restricted to a recent figures available from the BLM human population of the Coachella 10-km (6-mi) stretch of alkaline flats show that in 1996 the number of Valley more than doubled from under paralleling Fish Slough on lands owned recorded visits at the recreation area 100,000 to over 215,000 people. In the and managed by the LADWP and BLM. rose to over 430,000, an increase of 15 next 20 years the human population of In 1984, BLM established an ACEC on percent from 1994 (BLM, in litt., 1996). the Coachella Valley is expected to these lands to protect the federally Of the dune-restricted plant taxa, again double, reaching a total of almost endangered Owens pupfish (Cyprinodon Astragalus magdalenae var. peirsonii 500,000 people by the year 2010 radiosus) and the entire wetland appears to be the most vulnerable to (Coachella Valley Association of ecosystem. This ACEC encompasses the destruction by OHVs. Its small stature Governments, in litt. 1997). Significant range of A. lentiginosus var. piscinensis. provides little obstacle to riders dune habitats that once occurred along The ACEC is jointly managed by BLM, (Romspert and Burke 1978, ECOS 1990); the southwest edge of the Coachella the Service, CDFG, University of the brittle nature of its single stem Valley, at the base of the Santa Rosa California Natural Reserve System causes plants to break, rather than bend, Mountains, now support cities such as (NRS), and LADWP. Because of the when hit by a vehicle (ECOS 1990); and Rancho Mirage and Palm Desert availability of water and wetland a lack of lateral roots may reduce its (Barrows 1987). Increased urbanization vegetation at Fish Slough, the area has ability to remain anchored and survive of the area has altered available habitat sustained extensive human-related uses, vehicle-induced damage (Romspert and in the valley both through direct beginning with cattle grazing in the Burke 1978). In addition, seedling conversion of land and through 1860s. Additional discussion of cattle establishment in A. magdalenae var. alterations in the sand transport system impacts can be found under Factor E of peirsonii occurs in winter and spring responsible for the creation and the ‘‘Summary of Factors Affecting the (Romspert and Burke 1978), which are maintenance of the region’s sand Species’’ section of this rule. Ferren also the most popular periods for habitats (Barrows 1987; A. Sanders, (1991b) summarized impacts to recreational riding on the dunes. BLM pers. comm. 1996; K. Barrows, in litt. botanical resources at Fish Slough, estimates that an average winter 1996). noting that those related to the weekend in the year 2000 will draw 53606 Federal Register / Vol. 63, No. 193 / Tuesday, October 6, 1998 / Rules and Regulations about 7,000 OHV recreationalists to the magdalenae var. peirsonii in the dune shielded from the construction zone by dunes (BLM 1987). system. This region of dunes was also a protective fencing, and the topsoil Although the condition of Astragalus Wilderness Study Area (WSA) in the scraped from the site was stockpiled magdalenae var. peirsonii has not been 1970s and 1980s. When the BLM and later replaced (Service 1994; Ted documented throughout the dune recommended against designating this Rado, consultant, pers. comm. 1996). system since 1977, the condition of its WSA as wilderness in 1989, it cited four However, the project, originally dune habitat has been declining. In reasons for its recommendations— scheduled for October 1994, was not 1977, biologists noted that no seedlings (1)‘‘* * * the long tradition of motor carried out until April 1995, the period of any of the sensitive plant taxa could vehicle use;’’ (2) ‘‘* * * the projected when plants are flowering but before be found in the dune areas receiving continued demand for OHV use;’’ (3) fruits have matured. Any damage to high OHV use, although seedlings were ‘‘* * * the WSA’s potential for energy plants during this period would have abundant in other regions of the dunes and mineral development;’’ and (4) resulted in diminished seed production (Westec 1977). In 1990, biologists ‘‘* * * the similarity of the area to a by the population that year. Astragalus monitoring the dunes noted that no nearby WSA recommended for tricarinatus population sizes fluctuate seedlings or colonies of adult plants of wilderness.’’ (BLM 1989). While OHV widely from year to year and may A. magdalenae var. peirsonii could be use is expected to increase throughout depend on the persistence of a soil found in these high use areas (ECOS the recreation area, OHV use in the seedbank during years when weather 1990). The 1990 study compared former southern WSA is expected to limitations are unfavorable for growth or colonies of A. magdalenae var. peirsonii increase faster than the overall rate, reproduction. Due to poor growing located in areas closed to OHVs to those tripling from 1985 to the year 2000 conditions for this taxon throughout the in areas receiving moderate OHV use. (BLM 1987). In addition, these Canyon in 1996, the effect of this Biologists found that plants in moderate projections from BLM’s 1987 Recreation pipeline realignment on A. tricarinatus use areas had poorer health and lower Area Management Plan did not consider in Big Morongo Canyon has not yet been reproductive success than those in areas the increase in dispersed camping that determined (R. Kobaly, BLM, pers. closed to OHVs. In one comparison, 40 is occurring along the railroad tracks comm. 1996). percent of the sampled individuals and canal road that bound the central Astragalus tricarinatus is threatened located in the closed area reproduced, dunes on their east and west side (A. by maintenance activities for the crude while no individuals located in the area Schoeck, BLM, pers. comm. 1997). oil pipeline which runs through its open to OHVs reproduced (ECOS 1990). Camping in these areas facilitates quick, habitat at Big Morongo Canyon and by As OHV use of the dunes increases, the easy access to the central ‘‘limited use’’ vehicle use in the canyons. Its limited amount of dune habitat experiencing dunes for OHV use (D. Steeck and T. number of individuals make it ‘‘moderate’’ impacts will continue to Thomas, Service, pers. obs. 1997). especially vulnerable to unanticipated expand. These results suggest that OHV Construction of a bridge over the All events, such as pipeline leaks, breaks, or use has a detrimental effect on American Canal in the southern portion emergency repairs. populations beyond that due to the of the Algodones Dunes, planned for B. Overutilization for Commercial, direct crushing of individuals. Factors 1997 but as yet not constructed, will Recreational, Scientific, or Educational such as sand compaction, disruption of also increase ease of access to the Purposes hydrologic factors, or changes in central dunes, and may thereby Overutilization has not been community composition may also be encourage additional OHV use (Service, responsible for the decline of A. documented for the five taxa discussed in litt. 1996). The Service concludes that magdalenae var. peirsonii in areas used in this final rule. However, rare taxa the trend for habitat conditions of A. by OHVs (ECOS 1990). have, at times, become vulnerable to While loss of colonies and declines in magdalenae var. peirsonii in the central, collecting by curiosity seekers as a reproductive success and health of limited use, zone of the dunes is one of result of increased publicity following Astragalus magdalenae var. peirsonii continuing decline. publication of a listing proposal. The have been documented in areas Astragalus tricarinatus is known to be extremely limited number of Astragalus receiving high and moderate levels of extant only in Big Morongo Canyon. jaegerianus and A. tricarinatus make OHV use, a 20,000-ha (50,000-ac) This canyon bottom has been disturbed them vulnerable to scientific collectors. central section of the dunes has been by pipeline maintenance activities The potential for collection of these designated ‘‘limited use’’ under the several times in the last decade and plants upon publication of this final California Desert Conservation Area these activities are likely to continue. rule may increase. Plan (BLM 1980). According to this One occurrence of fewer than 10 A. C. Disease or Predation plan, the ‘‘limited use’’ designation is tricarinatus plants at the north end of designed to protect sensitive resource the canyon was graded during Disease is not known to be a factor for values, while allowing multiple use. maintenance of a gas pipeline access any of the taxa. Evidence exists that However, Astragalus magdalenae var. road in 1985 and has not been seen native herbivores may exert a peirsonii colonies in these areas may since, despite searches (Barrows 1987b; substantial effect on reproduction of decline if present trends continue. C. Jacobsen, in litt. 1993; Mathews individual plants of Astragalus Because the area is on a dune system, 1994). In 1995, the Four Corner’s lentiginosus var. piscinensis. It is the ‘‘limited use’’ designation prohibits Pipeline Company excavated and unclear whether gradual increases in the construction of roads or realigned three segments of a crude oil soil saturation are reducing plant vigor campgrounds within its boundaries, but pipeline that extended through habitat in the central zone of Fish Slough, does not include any restriction on OHV for A. tricarinatus in Big Morongo making them more vulnerable to attack use of the area. In 1988, BLM Canyon and had been exposed by by native herbivores. Whatever the constructed a campground at the south streambed scouring (Service 1994). One causes, infestations of vegetative parts end of Gecko Road, just 3/4 mile north section of the realignment extended and root systems by phloem-sucking of the boundary of the ‘‘limited use’’ through a site that had supported 20 A. insects and red ants, respectively, and zone and adjacent to the highest tricarinatus plants in 1992. Plants high rabbit herbivory have all been concentration of colonies of A. present at the time of construction were reported for individuals of A. Federal Register / Vol. 63, No. 193 / Tuesday, October 6, 1998 / Rules and Regulations 53607 lentiginosus var. piscinensis in the address management of the Algodones are subject to CEQA. Protection of A. central zone of Fish Slough (Mazer and Dune system on an ecosystem basis for lentiginosus var. coachellae has not Travers 1992; BLM, in litt. 1993; the conservation of its wildlife and been adequately considered in the LADWP, in litt. 1996). Ferren (1991a) botanical resources, the BLM and CDFG CEQA process. For instance, projects are observed rabbit feces adjacent to developed a habitat management plan sometimes approved when biological individuals of A. lentiginosus var. (HMP) for the Algodones Dunes in 1987. surveys have not been conducted at the piscinensis that had been virtually The plan included a monitoring appropriate time of year to locate this stripped of leaves, flowers, and seeds. program to track the effects of the 1988 taxon (K Barrows, pers. comm. 1997). Mazer and Travers (1992) found that construction of Roadrunner The biology of the taxon may also result plants in the central western zone of campground and the subsequent in it being missed or the extent of its Fish Slough suffered high herbivory increase in OHV use on the wildlife and distribution severely underestimated if levels when compared to plants in the vegetation in the central dunes. In the surveys are carried out in years of low north section of the Slough. By August, HMP, the BLM also agreed to establish rainfall, or other times when plants may sampled plants in the central zone of monitoring transects for sensitive occur at very low densities. In addition, the Slough had 80 percent of their plants, including A. magdalenae var. development of lands in the Coachella branches grazed by rabbits or rodents, peirsonii, in all land use classes and Valley may have an indirect effect on A. while in the north zone of the Slough monitor them every other year until lentiginosus var. coachellae by blocking fewer than 20 percent of branches of trends were established. Little of the transport of sands throughout the sampled plants had been grazed. It is monitoring specific to sensitive plant Valley. These indirect, cumulative unknown whether the reduced species has been carried out (N. Nicolai, effects could result in large-scale reproduction of A. lentiginosus var. BLM, pers. comm. 1996, J. Dice, CDFG, changes to the sand habitats of the piscinensis caused by native herbivores pers. comm. 1997). At the Service’s Coachella Valley, but are not often results in lowered recruitment, or request for distribution and abundance addressed on an individual project whether native herbivores may be data, the BLM provided only sensitive basis. responsible for the low recruitment seen plant monitoring data from 1990, and The taxa in this rule may already in certain areas by preferentially feeding the baseline studies conducted in 1977 receive some habitat protection from the on seedlings. In addition to herbivory by and 1978. Act where their ranges overlap those of rodents and rabbits, in 1996, plants of In Mexico, the Gran Desierto, where species already listed under the Act. A. lentiginosus var. piscinensis Astragalus magdalenae var. peirsonii The range of Astragalus lentiginosus appeared to have been killed by red occurs, was designated a UNESCO var. coachellae overlaps with that of the ants, probably through damage to the Biosphere Reserve in 1993. Although Coachella Valley fringe-toed lizard. The root system (LADWP in litt. 1996). this designation recognizes the unique three preserves set aside for the lizard resource values of the area, actual support populations of A. lentiginosus D. The Inadequacy of Existing enforcement of conservation laws will var. coachellae, but this represents only Regulatory Mechanisms be dictated by the availability of the 20 to 25 percent of the occurrences of Existing regulatory mechanisms that limited resources of the Mexican this taxon. Over 75 percent of the may provide some protection for these government. The status of A. occurrences of this plant are located on taxa include—(1) the California magdalenae var. peirsonii in Mexico is unprotected sites on private or tribal Endangered Species Act (CESA), (2) the not well documented. lands. California Environmental Quality Act CEQA requires a full disclosure of The range of Astragalus jaegerianus (CEQA), (3) the Federal Endangered potential environmental impacts of overlaps with that of the desert tortoise Species Act, in those cases where these proposed projects. The public agency (Gopherus agassizii) on some portions taxa occur in habitat occupied by other with primary authority or jurisdiction of DOD lands at Fort Irwin and on some listed species, (4) the Clean Water Act, over the project is designated as the lead BLM lands. However, the distribution of (5) the Federal Land Policy and agency and is responsible for A. jaegerianus is very localized and Management Act, and (6) regional conducting a review of the project and areas too small or fragmented to support planning efforts. consulting with other agencies viable tortoise populations could Pursuant to the Native Plant concerned with the resources affected support significant numbers of the Protection Act (chapter 10 section 1900 by the project. Section 15065 of the plant. Overlapping range with the et seq. of the California Fish and Game CEQA Guidelines requires a finding of tortoise does not provide adequate Code) and CESA (chapter 1.5 section significance if a project has the potential protection for A. jaegerianus. Astragalus 2050 et seq. of the Fish and Game Code), to ‘‘reduce the number or restrict the magdalenae var. peirsonii and A. the California Fish and Game range of a rare or endangered plant or tricarinatus do not co-occur with any Commission listed Astragalus animal.’’ If significant effects are taxa already listed under the Act. magdalenae var. peirsonii as identified, the lead agency has the Astragalus lentiginosus var. endangered in 1979. California Senate option to require mitigation for effects piscinensis occurs within the Fish Bill 879, passed in 1997 and effective through changes in the project or to Slough ecosystem, a wetland supporting January 1, 1998, requires individuals to decide that overriding considerations the Owens pupfish (Cyprinodon obtain a section 2081(b) permit from make mitigation infeasible. In the latter radiosus), a federally listed endangered CDFG to take a listed species incidental case, projects may be approved that species. The listing of the Owen’s to otherwise lawful activities, and cause significant environmental pupfish under the Act has provided requires that all impacts be fully damage, such as destruction of additional recognition of the need to mitigated and all measures be capable of endangered species and their habitats. protect the Fish Slough ecosystem, and successful implementation. Astragalus Protection of species through CEQA is, in that way has indirectly benefitted A. magdalenae var. peirsonii is currently therefore, dependent upon the lentiginosus var. piscinensis. known only from public lands under discretion of the lead agency. Conversely, impoundments and other BLM management, however, and these Of the taxa included in this proposed manipulations of the spring system of CESA provisions do not apply to rule, only Astragalus lentiginosus var. the slough, created in part to provide Federal agencies. In an attempt to coachellae occurs on private lands that habitat for the pupfish, have resulted in 53608 Federal Register / Vol. 63, No. 193 / Tuesday, October 6, 1998 / Rules and Regulations the loss of alkali meadow habitat of A. be submitted at times when the plants species, 21 candidate species, and 17 lentiginosus var. piscinensis. are not present above-ground, BLM additional species of concern to the Management emphasis on only one must frequently base its response on Service. However, the planning process species or group of related species (e.g. existing knowledge of where plants are is in its initial stages and its funding is endangered fishes) will not provide located, or were located in the past, not secured, nor is a product yet adequate protection to all sensitive rather than on field surveys to available that can be implemented. species in the wetland system and, as in determine if a site supports this species. Thus, the inclusion of A. lentiginosus this case, may be detrimental to the The options that are available to the var. coachellae in the CVMSHCP survival or recovery of co-occurring Service and the BLM in response to a planning process is not sufficient to species. The occurrence of federally project are limited, unless an action may preclude the need to list the species at listed fish species in Fish Slough does jeopardize the continued existence of this time. not provide adequate protection for A. the listed species pursuant to section 7 E. Other Natural or Human-caused lentiginosus var. piscinensis in its of the Act. Astragalus jaegerianus Factors Affecting Their Continued adjacent wetland habitat. currently receives minimal regulatory Existence Under section 404 of the Clean Water protection in areas where mining Act, the U.S. Army Corps of Engineers activity is occurring. A potential threat to Astragalus (Corps) regulates the discharge of fill Astragalus jaegerianus is included jaegerianus is habitat destruction from into waters of the United States, within the planning area of the West emergency fire suppression activities in including navigable waters, wetlands, Mojave Coordinated Management Plan, response to wildfires occurring at Lane and other waters (33 CFR parts 320– a multi-agency effort to coordinate Mountain Mesa. An increase in fire 330). The Clean Water Act requires resource information and provide frequency has been documented for the project proponents to obtain a permit general resource management direction nearby Superior Dry Lake area (T. from the Corps prior to undertaking in the west Mojave Desert. Unresolved Eagen, pers. comm. 1997) and the Lane many activities (e.g., grading, discharge issues stalled the planning team’s Mountain Mesa area is experiencing of soil or other fill material, etc.) that progress in 1996. The planning effort similar increases in human activity (the would result in the filling of wetlands has since been reinitiated, with a ignition source) and nonnative annual subject to the Corps’ jurisdiction. The modified objective and fewer species to plant species (the significant fuel habitat of Astragalus lentiginosus var. be addressed. Although A. jaegerianus source) (T. Eagen, pers. comm. 1996). piscinensis is seasonally moist alkaline is one of the included taxa, the planning Although the population of A. flats adjacent to Fish Slough and is a process is not yet at a stage that will jaegerianus has not been burned jurisdictional wetland under the provide it protection. recently, the existence of fewer than 30 purview of section 404. Some protection Astragalus lentiginosus var. plants at this site make it extremely from wetland fill activity, such as the piscinensis occurs within Zone 1 of an vulnerable to emergency fire construction of new dams, may be ACEC on public lands managed by the suppression activities or similar afforded by the regulatory process. BLM, and on lands owned by the unplanned events. However, unless a population of A. LADWP. A joint management committee Lack of recruitment is a potential lentiginosus var. piscinensis were composed of representatives of the threat to Astragalus lentiginosus var. directly within the footprint of the fill LADWP, BLM, the Service, CDFG, and piscinensis. BLM has been monitoring area, impacts of the project on the the University of California Natural this taxon in the central-eastern zone of species, e.g., changes in hydrology, may Reserve System provide guidance on Fish Slough since 1992 and has not be considered. Fluctuating water management issues. Although the observed no recruitment in the area levels behind the dams at Fish Slough management committee is making during that time (BLM, in litt. 1993, are not subject to regulation under progress in addressing the needs of the 1996; Anne Halford, BLM, pers. comm. section 404, but can result in sensitive plants and animals in the Fish 1996). Two potential explanations for undesirable changes in the hydrologic Slough ecosystem, the changes in this are high rabbit/rodent herbivory of characteristics of the habitat of A. slough hydrology resulting from existing seedlings and changes in soil hydrology lentiginosus var. piscinensis, a primary dams and, potentially, from natural or chemistry that make the area less threat to the species. Protections causes (Ferren 1991c), are complex and hospitable for seedlings. Alterations in afforded to wetland areas under section will not be easily resolved. The Service the extent and timing of soil saturation 404 of the Clean Water Act are not concludes that the existence of the Fish have occurred in several areas of the sufficient to preclude listing the species. Slough ACEC and management slough due to past hydrologic Currently, the majority of Astragalus committee do not preclude the need to modifications, most recently for the jaegerianus sites are either covered by list A. lentiginosus var. piscinensis at enhancement of endangered fish habitat. mining claims, or are available for this time. Astragalus lentiginosus var. claims for mineral extraction. The BLM Astragalus lentiginosus var. piscinensis is subject to grazing from has only limited authority under the coachellae occurs within the bounds of livestock. The Fish Slough area was first Federal Land Policy and Management the Coachella Valley Multispecies grazed by cattle in the 1860s, and Act (FLPMA) to control surface mining Habitat Conservation Planning grazing currently occurs on all LADWP once claims are made. The policy of (CVMSHCP) area. This planning process lands that support A. lentiginosus var. FLPMA, as expressed by regulation, is being coordinated by the Coachella piscinensis except for those within the grants individuals a statutory right to Valley Association of Governments and northern 32-ha 80-ac exclosure (P. mine certain Federal lands (43 CFR the Coachella Valley Mountains Hubbard, pers. comm. 1996). Data on 3809.0–6). Although mining projects are Conservancy to address a 4500 sq km plant numbers, collected from plots in required to submit a Plan of Operations (1,850 sq mi) area that includes the grazed and ungrazed areas of Fish (for projects over 2 ha (5 ac) in size) or Coachella Valley and surrounding Slough from 1991 to 1996, suggest that a Notice of Operations (for projects region in Riverside County. The plan is some recruitment of new individuals under 2 ha (5 ac), including exploratory expected to address conservation needs into the population is occurring in both mining), the BLM has only 15 days in for 12 species that are listed or proposed the grazed and ungrazed sample areas. which to respond. Since the notices may for listing as endangered or threatened The sampled plots are few (three grazed Federal Register / Vol. 63, No. 193 / Tuesday, October 6, 1998 / Rules and Regulations 53609 plots and two ungrazed plots) and from random natural events (e.g., by a species, at the time it is listed in numbers of plants within the plots flooding that could wash substantial accordance with the Act, on which are fluctuated substantially over the amounts of the seedbank into unsuitable found those physical or biological sampling period without clear habitat) or unforeseen events (e.g., features (I) essential to the conservation increasing or declining trends. wildfire suppression activities, pipeline of the species and (II) that may require Grazing by livestock alters the breaks, leaks, or repairs). Because these special management considerations or composition of the plant community three taxa are in danger of extinction protection; and (ii) specific areas over time by reducing or eliminating throughout all or a significant portion of outside the geographical area occupied those species that cannot tolerate their ranges, they meet the definition of by a species at the time it is listed, upon trampling and by enabling those that endangered under the Act. a determination that such areas are can to increase in abundance. Other taxa Both Astragalus magdalenae var. essential for the conservation of the that were not previously part of the peirsonii and A. lentiginosus var. species. ‘‘Conservation’’ means the use native plant community may be piscinensis were originally proposed for of all methods and procedures needed introduced and flourish under the endangered status. Since the proposed to bring the species to the point at disturbance caused by grazing and may rule was published, the northern which listing under the Act is no longer reduce or eliminate native taxa through portion of Algodones Dunes habitat that necessary. competition for resources. The Service supports A. magdalenae var. peirsonii Section 4(a)(3) of the Act, as considers cattle grazing a potential was formally designated as wilderness amended, and implementing regulations threat until more conclusive evidence is in 1994 under the California Desert (50 CFR 424.12) require that, to the available. Additional discussion of Protection Act. This wilderness is maximum extent prudent and cattle grazing can be found in this permanently closed to motorized- determinable, the Secretary designate document in the Service’s ‘‘Response to vehicle use. Since publication of the critical habitat at the time the species Comments’’ section of this final rule proposed rule, the Service has also are determined to be endangered or (see Issue 4). become aware of collections of A. threatened. Service regulations (50 CFR Astragalus tricarinatus is vulnerable magdalenae var. peirsonii from the Gran 424.12(a)(1)) state that designation of to crushing by motorized vehicles in Big Desierto in Sonora, Mexico. The critical habitat is not prudent when one Morongo Wash. Although access to the specimens from Sonora were all or both of the following situations bottom of the canyon is gated, botanists collected from the southern Gran exist—(1) the species is threatened by conducting surveys for A. tricarinatus in Desierto over a 15-year period (Richard taking or other human activity, and 1994 noted motor vehicle tracks within Felger, Drylands Institute, pers. comm. identification of critical habitat can be several feet of the plants. While some of 1996; J. Rebman, San Diego Museum of expected to increase the degree of such the vehicle activity may have been Natural History, pers. comm. 1996; Alan threat to the species, or (2) such associated with pipeline maintenance, Romspert, California Desert Studies designation of critical habitat would not other vehicle use may have been Center, pers. comm. 1996; Gary D. be beneficial to the species. recreational (Mathews 1994). Due to the Wallace, Service, pers. comm. 1996). Section 7(a)(2) of the Act requires limited number of individuals (less than While this taxon remains vulnerable to Federal agencies to consult with the 100 known plants), A. tricarinatus the OHV use occurring over most of its Service to ensure that any action remains extremely vulnerable to loss of dune habitat, the Service believes that authorized, funded, or carried out by plants due to OHVs, maintenance the dispersed nature of its colonies and such agency, does not jeopardize the operations, and unforseen events the wilderness designation reduce the continued existence of a federally listed relating to the pipeline (e.g., pipeline potential for immediate extinction. species or destroy or adversely modify breaks or leaks) that could cause local Therefore, a designation of threatened is designated critical habitat. The population extirpation and potentially appropriate for this taxon. Astragalus requirement that Federal agencies must lead to extinction of the species. lentiginosus var. piscinensis is not destroy or adversely modify critical The Service has carefully assessed the threatened by hydrologic modification habitat in any action authorized, funded best scientific and commercial of its wetland ecosystem, and reduced or carried out by such agency (agency information available regarding the past, recruitment that may be due to past action) is in addition to the section 7 present, and future threats faced by alteration of habitat or rabbit/rodent prohibition against jeopardizing the these taxa in determining to make this herbivory. A significant portion of the continued existence of a listed species; rule final. Based on new information northern population is protected by an and it is the only mandatory legal that has come to light since these taxa exclosure, reducing the threat from consequence of a critical habitat were proposed and based on grazing. In addition, the lands on which designation. The Service’s reevaluation of existing data, the it occurs receive specific management implementing regulations (50 CFR part Service’s preferred action is to list consideration due to its inclusion in an 402) define ‘‘jeopardize the continuing Astragalus jaegerianus, A. tricarinatus, ACEC. The Service determines that, existence of’’ and ‘‘destruction or and A. lentiginosus var. coachellae as while this taxon may not be in adverse modification of’’ in very similar endangered, and A. lentiginosus var. immediate danger of extinction, it is terms. To jeopardize the continuing piscinensis and A. magdalenae var. likely to become endangered in the existence of a species means to engage peirsonii as threatened. The three foreseeable future throughout all or a in an action ‘‘that reasonably would be endangered taxa face the following significant portion of its range, thus a expected to reduce appreciably the threats—habitat alteration and threatened designation is appropriate. likelihood of both the survival and destruction resulting from construction, Critical habitat is not being designated recovery of a listed species.’’ urban development, mining, pipeline for these five taxa for reasons discussed Destruction or adverse modification of maintenance, and OHV activity; and the in the following section. habitat means an ‘‘alteration that inadequacy of existing regulatory appreciably diminishes the value of mechanisms. The low numbers and Critical Habitat critical habitat for both the survival and small population sizes of A. jaegerianus Critical habitat is defined in section 3 recovery of a listed species in the wild and A. tricarinatus make them of the Act as: (i) The specific areas by reducing the reproduction, numbers, particularly vulnerable to extinction within the geographical area occupied or distribution of that species.’’ 53610 Federal Register / Vol. 63, No. 193 / Tuesday, October 6, 1998 / Rules and Regulations

Common to both definitions is an occupied by the species. Furthermore, section 7 consultation because virtually appreciable detrimental effect to both the Service has not yet made a any action that would result in an the survival and recovery of a listed determination as to how much habitat is adverse modification determination species. An action that appreciably required for recovery. Designating all or would also likely jeopardize the species, diminishes habitat for recovery and a portion of unoccupied habitat under a designation of critical habitat on survival may also jeopardize the these circumstances seems private lands could result in a detriment continued existence of the species by inappropriate and contrary to to the species. This is because the reducing reproduction, numbers, or Congressional intent. The Service limited effect of a critical habitat distribution because negative impacts to believes the issue of conserving and designation on private lands is often such habitat may reduce population managing potentially suitable misunderstood by private landowners numbers, decrease reproductive success, unoccupied habitat is best addressed whose property boundaries could be or alter species distribution through during the recovery planning process as included within a general description of habitat fragmentation. biologists learn more about these critical habitat for a specific species. For a listed plant species, an analysis species and are able to work directly Landowners may mistakenly believe to determine jeopardy under section with affected landowners on how to best that critical habitat designation will be 7(a)(2) would consider loss of the manage these habitats. an obstacle to development and impose species associated with habitat impacts. Apart from section 7, the Act provides restrictions on their use of their Such an analysis would closely parallel no additional protection to lands property. In some cases, members of the an analysis of habitat impacts designated as critical habitat. public may believe critical habitat conducted to determine adverse Designating critical habitat does not designation to be an attempt on the part modification of critical habitat. As a create a management plan for the areas of the government to confiscate their result, an action that results in adverse where the species occurs; does not private property. Unfortunately, modification also would almost establish numerical population goals or inaccurate and misleading statements certainly jeopardize the continued prescribe specific management actions reported through widely popular existence of the species concerned. (inside or outside of critical habitat); medium available worldwide, are the Listing these species will ensure that and does not have a direct effect on types of misinformation can and have section 7 consultation occurs and areas not designated as critical habitat. led private landowners to believe that potential impacts to the species and Critical habitat would provide no critical habitat designations prohibit their habitat are considered for any benefit to the species addressed in this them from making use of their private Federal action that may affect these rule on non-Federal lands (i.e., private, land when, in fact, they face potential species. In many cases, listing also State, County or City lands) beyond that constraints only if they need a Federal ensures that Federal agencies consult provided by listing. Critical habitat permit or receive Federal funding to provides protection on non-Federal with the Service even when Federal conduct specific activities on their lands only if there is Federal actions may affect unoccupied suitable lands. These types of involvement (a Federal nexus) through habitat where such habitat is essential to misunderstandings, and the fear and authorization or funding of, or the survival and recovery of the species. mistrust they create among potentially participation in a project or activity on This is especially important for plant affected landowners, make it very non-Federal lands. In other words, species where consideration must be difficult for the Service to cultivate designation of critical habitat on non- given to the seed bank component of the meaningful working relationships with species, which are not necessarily Federal lands does not compel or such landowners and to encourage visible in the habitat throughout the require the private or other non-Federal voluntary participation in species year. A significant portion of their landowner to undertake active conservation and recovery activities. vegetative structure may not be in management for the species or to modify Without the participation of landowners evidence during cursory surveys; any activities in the absence of a Federal in the recovery process, the Service will occupancy of suitable habitat can only nexus. Possible Federal agency find it very difficult to recover species be reliably determined during the involvement or funding that could that occur on non-Federal lands. growing season. In practice, the Service involve the species addressed in the usually consults with Federal agencies rule on non-Federal lands include the A designation of critical habitat on proposing projects in areas where the BLM, DOD, and the Corps. Federal private lands could actually encourage species was known to recently occur or involvement, if it does occur, will be habitat destruction by private to harbor known seed banks. addressed regardless of whether critical landowners to rid themselves of the Specific areas outside the habitat is designated because perceived endangered species problem. geographical area occupied by a species interagency coordination requirements Listed plants have limited protection are included in the Act’s definition of such as the Fish and Wildlife under the Act, particularly on private ‘‘critical habitat.’’ Critical habitat can be Coordination Act (FWCA) and section 7 lands. Section 9(a)(2) of the Act, designated for suitable, but unoccupied, of the Act are already in place. When implemented by regulations at 50 CFR habitat of listed species. However, the these plant species are listed, activities section 17.61 (endangered plants) and Act indicates that critical habitat ‘‘shall occurring on all lands subject to Federal 50 CFR 17.71 (threatened plants) not include the entire geographical area jurisdiction that may adversely affect prohibits—(1) removal and reduction of which can be occupied by the these species would prompt the listed plant species to possession from threatened or endangered species’’ requirement for consultation under areas under Federal jurisdiction, or their except when determined by the section 7(a)(2) of the Act, regardless of malicious damage or destruction on Secretary. In the case of the species whether critical habitat has been areas under Federal jurisdiction; or (2) addressed in this final rule, the Service designated. removal, cutting, digging up, or does not know specifically why some While a designation of critical habitat damaging or destroying any such areas that seem suitable are unoccupied. on private lands would only affect species in knowing violation of any Designating all potentially suitable areas actions where a Federal nexus is present State law or regulation including state could, therefore, encompass ‘‘the entire and would not confer any additional criminal trespass laws. Generally, on geographical area’’ which can be benefit beyond that already provided by private lands, collection of, or Federal Register / Vol. 63, No. 193 / Tuesday, October 6, 1998 / Rules and Regulations 53611 vandalism to, listed plants must occur of critical habitat could increase the Astragalus jaegerianus, A. lentiginosus in violation of State law to be a violation threats to these species from vandalism var. coachellae, A. lentiginosus var. of section 9. The Service is not aware of and collection similar to the threats piscinensis, A. magdalenae var. any state law in California that generally identified in response to listing a peirsonii, and A. tricarinatus. More regulates or prohibits the destruction or species (Oberbauer 1992, Beauchamp in specific details why designation of removal of federally listed plants on litt. 1997). Simply listing a species can critical habitat is not prudent for each private lands. Vandalism is a potential precipitate commercial or scientific of these species is addressed in the threat to the five taxa listed in this rule. interest, both legal and illegal, which following discussion. In the general area where the plants can threaten the species through Astragalus jaegerianus addressed in this rule are found, a unauthorized and uncontrolled development and construction company collection for both commercial and Astragalus jaegerianus occurs on was documented to have deliberately scientific purposes. The listing of lands managed by the BLM and the bulldozed known federally listed plant species as endangered or threatened DOD. Because so few plants are known locations at a work site. (T. Thomas, publicizes a species’ rarity and may to occur, it is likely that any activity that Service). The designation of critical make the species more susceptible to would be considered an adverse habitat requires the publication of collection by researchers or curiosity modification of critical habitat would precise habitat descriptions and mapped seekers (Mariah Steenson pers. comm. also likely jeopardize the continued locations of the species in the Federal 1997, M.Bosch, U.S. Forest Service in existence of the species; thus, a critical Register, increasing the likelihood of litt. 1997). For example, the Service has habitat designation would provide no collection and vandalism, including documented an incident where, advantage or additional conservation potential search and removal activities following the publication of critical benefit in this instance. However, A. at specific sites. habitat designation in the Federal jaegerianus occurs in desert shrublands The Service acknowledges that in Register, unidentified persons visited a that appear no different from some situations critical habitat Forest Service wilderness area where surrounding, unoccupied habitat. There designation may provide some value to listed plants were located and asked is no easily observable difference in the species by notifying the public about directions to the location of the plants dominant vegetation type, landform, areas important for species’ in question. Several plants were later soil, or hydrologic characteristics, to conservation and calling attention to found to be missing from the Service distinguish occupied habitat of A. those areas in special need of study plots (Nora Murdock, Service, jaegerianus from surrounding protection. However, when this limited pers. comm. 1998). unoccupied or unsuitable habitat. For benefit is weighed against the potential Because public lands such as BLM this reason, the designation of critical threat of collection and vandalism lands are open for public use, this threat habitat could potentially benefit this associated with the designation of exists whenever maps of listed plant species by formally delineating for the critical habitat, the Service concludes locations are made known to the public, Federal agencies those areas occupied that the possible detriment to the as required for critical habitat by the species or that the Service deems species from a critical habitat designation. Critical habitat designation critical to its survival and recovery, thus designation outweighs the possible also makes plant species more ensuring that consultation will take conservation benefit of such designation vulnerable to vandals who would place when a federally authorized and that such designation is therefore destroy occurrences of plants and other activity (such as military maneuvers or not prudent. The information and protected species in order to avoid mining) occurs in critical habitat. While notification process can more effectively perceived or potential land management this small benefit may exist, it is offset be accomplished by working directly conflicts. The potential threat of by the potential negative effects of with landowners and communities vandalism and collection would likely designating critical habitat. Known during the recovery planning process be exacerbated by publication of populations of A. jaegerianus total only and by the section 7 consultation and descriptions and maps of critical habitat a few hundred plants. A critical habitat coordination process when a Federal in the Federal Register. The Service map that delineated occupied habitat nexus exists. The use of these existing concludes that the absence of any areas would increase the potential for processes will provide the same level of additional conservation benefit from a overcollecting by amateur and unethical conservation benefit to the species that designation of critical habitat for the professional botanists, especially since the designation of critical habitat would, plant species covered by the rule known one of the populations is easily but without the confusion and to occur on Federal lands, and the likely accessible from a road. Increases in misunderstandings associated with detriment from such designation collection of rare plant species critical habitat designation. resulting from increased threats of following publications discussing the For similar reasons, the Service also collection and vandalism renders a species’ rarity have been documented concludes that there would be no designation of critical habitat for the (Gary Wallace, Service, pers. comm. additional benefits to the species plants not prudent. 1997; Nora Murdock, Service, pers. covered in this rule beyond the benefits The Service has weighed the lack of comm. 1998). The threat of vandalism conferred by listing from a designation overall benefits of critical habitat on Federal lands exists for this species. of critical habitat on Federal lands. In designation beyond that provided by The Service finds that critical habitat the case of each of these plant species, listing species as threatened or designation would provide little the existing occurrences of the species endangered along with the benefits of conservation benefit over that provided are known by the BLM and DOD; and public notification against the by listing where this species occurs. any action that would result in adverse detrimental effects of the negative Federal agencies where the species modification of critical habitat would public response and misunderstanding occurs on their lands are aware of its almost certainly result in likely jeopardy of what critical habitat designation presence and status. Critical habitat to the species, so that a designation of means and the increased threats of designation on these lands would not critical habitat on Federal lands would illegal collection and vandalism, and necessarily change the way those lands not confer any additional benefit on the has concluded that critical habitat are managed or require that specific species. On the other hand a designation designation is not prudent for management actions take place. All 53612 Federal Register / Vol. 63, No. 193 / Tuesday, October 6, 1998 / Rules and Regulations activities that may affect the species on planning effort, a designation of critical critical habitat would not provide A. these Federal lands would be subject to habitat would not provide any benefit lentiginosus var. piscinensis any section 7 consultation. The Service through increased awareness or through additional recognition, or increased believes that the conservation of this consultation with the Service. The protection through consultation, beyond species on Federal lands can best be Service determines that designation of that provided by its listing. In 1991, addressed by working directly with the critical habitat for this taxon will LADWP constructed a 32 ha (80 ac) agencies during the recovery planning provide it no additional conservation cattle exclosure at the northern end of process and the interagency benefits beyond those provided by its the slough. In 1992, over 95 percent of coordination and consultation processes listing, and that the designation could the A. lentiginosus var. piscinensis of section 7 for those activities with lead to acts of collection or vandalism. plants in the northern zone were within Federal agency involvement. In Therefore, the risks associated with a the exclosure. Other than the area conclusion, the Service has weighed the designation of critical habitat outweigh encompassed by the exclosure in the general lack of benefit beyond that the possible benefits of designating north end of Fish Slough, lands under provided by listing as endangered critical habitat. Designation of critical LADWP management that support this against the detrimental effects of the habitat is, therefore, not prudent. taxon are grazed (Paula Hubbard, increased threat of vandalism and the LADWP, pers. comm. 1996). Grazing is Astragalus lentiginosus var. piscinensis potential for misunderstandings by the not permitted in the habitat of A. public about the effects of critical Astragalus lentiginosus var. lentiginosus var. piscinensis on lands habitat designation on Federal lands, piscinensis is restricted to a 6-mile managed by BLM, in the central zone of and concludes that critical habitat is not stretch of alkali flat habitat and the the slough. The Service recognizes the prudent for Astragalus jaegerianus. transition zones to alkali scrub efforts of the LADWP to protect A. paralleling Fish Slough, in Inyo and lentiginosus var. piscinensis from the Astragalus lentiginosus var. coachellae Mono Counties, California. These direct effects of trampling in the north Astragalus lentiginosus var. habitat types form a ring around the region of the Slough by constructing a coachellae is currently known from seasonally and permanently flooded fenced exclosure and commends the fewer than 25 occurrences in the wetland areas of the slough itself. Over efforts of the BLM and LADWP to Coachella Valley. About 75 to 80 60 percent of this population is located monitor the status of the plant. Critical percent of the known occurrences of in the northern portion of the slough on habitat designation on these lands Astragalus lentiginosus var. coachellae land owned by the LADWP and would not change the way those lands are located on private lands. The approximately 35 percent of known A. are managed or require that specific primary threat to A. lentiginosus var. lentiginosus var. piscinensis plants grow management actions take place. Because coachellae is habitat destruction due to in the central zone of the slough on this taxon is very narrowly distributed, the extensive urban development lands owned and managed by both BLM any activity that would be significant occurring in the Coachella Valley. and LADWP. About 5 percent are in enough to be considered an adverse Urbanization destroys populations by scattered patches downstream as far as modification of critical habitat would direct conversion of the land on which McNally Canal, but Fish Slough is also likely jeopardize the continued they occur and by altering or reducing narrow at its southern end, with little existence of the species. For these the source and transport of blow sands suitable habitat (P. Novak, in litt. 1992; reasons, the Service determines that that maintain the sand habitats of the W. Ferren, in litt. 1992). designation of critical habitat for this Coachella Valley. As discussed above, The alkali flat and alkali scrub habitat taxon is not prudent because it would widespread misunderstanding exists in in the Fish Slough ecosystem were well- provide no additional benefit to the the public sector about the regulatory mapped by 1991 (Ferren 1991a ) and the species beyond that conferred by listing. effect of a designation of critical habitat. distribution of Astragalus lentiginosus On these lands, a designation of critical var. piscinensis was mapped by BLM Astragalus magdalenae var. peirsonii habitat could lead to increased and LADWP in 1992, during surveys in BLM manages all of the Algodones vandalism; and because plants on which all potential habitat was Dunes, the location of the only private lands have few protections searched. The habitat types in which A. confirmed extant populations of under section 9 of the Act, acts of take lentiginosus var. piscinensis grows are Astragalus magdalenae var. peirsonii in or vandalism would be difficult to visually different in dominant species the United States. Given the sensitivity prosecute. Where the taxon does occur than the surrounding upland habitat of the sand dune habitat of this species on Federal lands or where Federal and are limited in extent. The lands on to physical disturbance and the limited involvement may occur on non-Federal which A. lentiginosus var. piscinensis distribution and reliance of A. lands, actions that could adversely occurs receive specific management magdalenae var. peirsonii to a specific affect this taxon would be subject to consideration due to its inclusion in an habitat type, the biological threshold for consultation under section 7 of the Act. ACEC. The entire range of this taxon is ‘‘jeopardy’’ and ‘‘destruction or adverse In some cases, delineating areas as encompassed within the Fish Slough modification’’ is essentially identical. critical habitat may provide a benefit to ACEC under multi-agency management That is, any action that would impact the taxon by increasing awareness of its that includes BLM and the LADWP and the habitat of this species to the degree location and by triggering additional this, combined with its proximity to a of causing destruction or adverse consultations under section 7 that BLM Resource Area office, have modification (i.e., appreciably otherwise might not occur if the Federal provided A. lentiginosus var. diminishing the value of the area for agencies are unaware of population piscinensis substantial recognition by both the survival and recovery of the locations. The locations of A. BLM staff. As a result of this taxon species) would also jeopardize the lentiginosus var. coachellae on Federal occurring partially on lands managed by continued existence of the species (i.e., land are being tracked and additional the BLM, section 7 consultations are reduce appreciably the likelihood of surveys are being conducted as part of probable. Because the habitat of this both the survival and recovery of a the planning process for the Coachella taxon is distinctive and the Fish Slough listed species in the wild by reducing Valley Multispecies Habitat area is a management area of specific the reproduction, numbers, or Conservation Plan. Due to this active concern to the BLM, a designation of distribution of that species). Federal Register / Vol. 63, No. 193 / Tuesday, October 6, 1998 / Rules and Regulations 53613

Approximately 180 sq mi of the critical habitat beyond that provided by public awareness and conservation Algodones Dunes are open to OHV listing against the detrimental effects of actions by Federal, State, and local access and 30 sq mi of dunes are the increased threat of vandalism and agencies, private organizations, and ‘‘closed’’ to OHV use. The Service’s the potential for misunderstandings of individuals. The Act provides for review of aerial photography of critical habitat by the public, and possible land acquisition and Algodones Dunes indicates that the concludes that critical habitat is not cooperation with the States and requires most intensive OHV use and the prudent for A. magdalenae var. that recovery actions be carried out for resulting destruction of plant habitat peirsonnii. all listed species. The protection required of Federal agencies and the occurs in about 1/3 of the open area. Astragalus tricarinatus Given the public’s misperception about prohibitions against certain activities critical habitat and greater access to the As of January 1997, Astragalus involving listed plants are discussed, in dunes by OHV users (see Factor A of the tricarinatus is known to be extant along part, below. ‘‘summary of factors Affecting the approximately 2 to 3 km (1 to 2 mi) of Section 7(a) of the Act, as amended, Species’’ section of this rule), it seems Big Morongo Canyon and its tributary requires Federal agencies to evaluate likely that a designation of critical canyons. Collections of this taxon exist their actions with respect to any species habitat could lead to acts of vandalism. from three other canyons within its that is proposed or listed as endangered The Service believes that if critical range, however at two sites, only a or threatened and with respect to its habitat is designated for Astragalus single plant was found. At Big Morongo critical habitat, if any is being magdalenae var. peirsonii, in any Canyon, this taxon is found on lands designated. Regulations implementing portion of the dune system, such action managed by the BLM and included this interagency cooperation provision may provoke deliberate incidents of within a preserve. Any Federal action of the Act are codified at 50 CFR 402. vandalism by OHV users. The public’s that occurs in the wash habitat of this Section 7(a)(4) requires Federal agencies misperception that critical habitat species will require consultation with to confer with the Service on any action essentially limits or nullifies use of the Service through the section 7 that is likely to jeopardize the continued public lands may serve to encourage guidelines. Because A. tricarinatus existence of a species proposed for acts of vandalism. The threat of occurs in only a few locations, any listing or result in destruction or vandalism on Federal lands exists for Federal action significant enough to be adverse modification of proposed this species. considered adverse modification of critical habitat. If a species is critical habitat would also likely subsequently listed, section 7(a)(2) The Service finds that critical habitat jeopardize the continued existence of requires Federal agencies to ensure that designation would provide little this species, thus there is no additional activities they authorize, fund, or carry conservation benefit over that provided conservation benefit to designating out are not likely to jeopardize the by listing where this species occurs. The critical habitat. The habitat map that continued existence of a listed species Service acknowledges that critical would be required for designation of or to destroy or adversely modify its habitat designation, in some situations, critical habitat would delineate critical habitat. If a Federal action may may provide limited additional benefit occupied habitat areas, and would affect a listed species or its critical to a species by identifying areas increase the potential for overcollecting habitat, the responsible Federal agency important for the conservation of the by amateur and unethical professional must enter into formal consultation with species and calling attention to those botanists, especially since one of the the Service. areas in special need of protection. The populations is easily accessible from a Four of the five taxa occur wholly or BLM is already aware of the presence of road. Increases in collection of rare primarily on Federal lands managed by Astragalus magdalenae var. peirsonii plant species following publication of the BLM or the DOD. Three of the taxa and its status. Critical habitat articles discussing their rarity has been occur partially or wholly within areas designation on these lands would not documented in the past (Gary Wallace, designated as ACECs, one species necessarily change the way those lands Service, pers. comm. 1997). The Service occurs within a wind energy are managed or require that specific determines that the negative effects of development corridor, and one species management actions take place. All designating critical habitat outweigh occurs within a recreation area. BLM activities that may affect the species on any potential benefits of its designation. activities that could potentially affect these Federal lands would be subject to For these reasons, the Service these taxa and their habitats include section 7 consultation. Thus, with the determines that designation of critical review of mining operation plans and listing of A. magdalenae var. peirsonii, habitat for this taxon is not prudent minerals leasing, geothermal energy activities occurring on all lands under because it would provide no additional leasing, permitting of grazing, alteration Federal jurisdiction or ownership that benefit to the species beyond that of dams and hydrologic conditions at may adversely affect A. magdalenae var. conferred by its listing, and the Fish Slough, the permitting of pipeline peirsonii would prompt the same designation of critical habitat would maintenance, wind energy development standard for consultation pursuant to increase the potential for acts of and associated rights-of-way in the section 7(a)(2) of the Act and the vandalism due to the public’s Coachella Valley, and the development implementing regulations pertaining misperceptions about critical habitat. of recreational facilities and thereto regardless of whether critical Therefore, designation of critical habitat improvement of access in the Imperial habitat has been designated. The Service for A. tricarinatus is not prudent. Dunes Recreation Area. The BLM is believes that the conservation of this currently developing a Habitat species on Federal lands can best be Available Conservation Measures Conservation Plan for the desert tortoise addressed by working directly with the Conservation measures provided to in the western Mojave Desert that BLM during the recovery planning species listed as endangered or includes the entire range of Astragalus process and the interagency threatened under the Act include jaegerianus. Specific actions have not coordination and consultation processes recognition, recovery actions, been identified at this time. The DOD of section 7. In conclusion, the Service requirements for Federal protection, and training activities conducted at the NTC has weighed the general lack of prohibitions against certain activities. at Fort Irwin could potentially affect conservation benefit of designating Recognition through listing results in Astragalus jaegerianus. Specific actions 53614 Federal Register / Vol. 63, No. 193 / Tuesday, October 6, 1998 / Rules and Regulations on DOD lands have not been identified and ongoing activities within the Permits to conduct activities are at this time. species’ range. Four of the taxa in this available for purposes of scientific The Act and its implementing rule are known to occur on lands under research and enhancement of regulations set forth a series of general the jurisdiction of the BLM, with one propagation or survival of the species. prohibitions and exceptions that apply also occurring on lands under the The Act and 50 CFR 17.62 and 17.63 to all threatened and endangered plants. jurisdiction of the DOD. Collection, for endangered plants and 17.72 for All prohibitions of section 9(a)(2) of the damage, or destruction of individuals of threatened plants provide for the Act, implemented by 50 CFR 17.61 for these species on Federal lands is issuance of permits to carry out endangered plants, and at 50 CFR 17.71 prohibited, although in appropriate otherwise prohibited activities for threatened plants apply. These cases a Federal endangered species prohibitions, in part, make it illegal for permit may be issued to allow involving endangered and threatened any person subject to the jurisdiction of collection. Such activities on non- plants under certain circumstances. the United States to import or export, Federal lands would constitute a Such permits are available for scientific transport in interstate or foreign violation of section 9 if conducted in purposes and to enhance the commerce in the course of a commercial knowing violation of California State propagation or survival of the species. activity, sell or offer for sale in interstate law or regulations, including violation For threatened plants, permits are also or foreign commerce, remove and of State criminal trespass law. The available for botanical or horticultural reduce to possession these species from Service believes that, based upon the exhibition, educational purposes, or areas under Federal jurisdiction. In best available information, the following special purposes consistent with the addition, for plants listed as actions will not result in a violation of purposes of the Act. endangered, the Act prohibits the section 9, provided these activities are Questions regarding whether specific malicious damage or destruction on carried out in accordance with existing activities would constitute violations of areas under Federal jurisdiction and the regulations and permit requirements: section 9 should be directed to the Field removal, cutting, digging up, or (1) Activities authorized, funded, or Supervisor of the Service’s Carlsbad damaging or destroying of such plants carried out by Federal agencies (e.g., Field Office (see ADDRESSES section). in knowing violation of any State law or grazing management, agricultural Requests for copies of the regulations regulation, including State criminal conversions, wetland and riparian concerning listed plants (50 CFR 17.61 trespass law. Section 4(d) of the Act habitat modification, flood and erosion and 17.71) and general inquiries allows for the provision of such control, residential development, regarding prohibitions and permits may protection to threatened species. This recreational trail development, road be addressed to the U.S. Fish and protection may apply to Astragalus construction, hazardous material lentiginosus var. piscinensis and A. Wildlife Service, Ecological Services, containment and cleanup activities, Endangered Species Permits, 911 N.E. magdalenae var. peirsonii in the future prescribed burns, pesticide/herbicide 11th Avenue, Portland, Oregon, 97232– if regulations are promulgated. Seeds application, pipelines or utility lines 4181 (telephone 503/231–2063; from cultivated specimens of threatened crossing suitable habitat,) when such facsimile 503/231–6243). plant species are exempt from these activity is conducted in accordance with prohibitions provided that their any reasonable and prudent measures National Environmental Policy Act containers are marked ‘‘Of Cultivated given by the Service in a consultation Origin.’’ Certain exceptions apply to conducted under section 7 of the Act; The Fish and Wildlife Service has agents of the Service and State (2) Casual, dispersed human activities determined that Environmental conservation agencies. on foot or horseback (e.g., bird Assessments and Environmental Impact The Act and 50 CFR 17.62, 17.63, and watching, sightseeing, photography, Statements, as defined under the 17.72 also provide for the issuance of camping, hiking); authority of the National Environmental permits to carry out otherwise (3) Activities on private lands that do Policy Act of 1969, need not be prohibited activities involving not require Federal authorization and do prepared in connection with regulations endangered and threatened plant not involve Federal funding, such as adopted pursuant to section 4(a) of the species under certain circumstances. grazing management, agricultural Endangered Species Act of 1973, as Such permits are available for scientific conversions, flood and erosion control, amended. A notice outlining the purposes and to enhance the residential development, road Service’s reasons for this determination propagation or survival of the species. construction, and pesticide/herbicide was published in the Federal Register For threatened plants, permits also are application when consistent with label on October 25, 1983 (48 FR 49244). available for botanical or horticultural restrictions; exhibition, educational purposes or (4) Residential landscape Paperwork Reduction Act special purposes consistent with the maintenance, including the clearing of This rule does not contain any purposes of the Act. It is anticipated vegetation around one’s personal information collection requirements for that few trade permits would ever be residence as a fire break. sought or issued because these species The Service believes that the which the Office of Management and are not common in cultivation or in the following might potentially result in a Budget (OMB) approval under the wild. violation of section 9; however, possible Paperwork reduction Act, 44 U.S.C. It is the policy of the Service, violations are not limited to these 3501 et seq. is required. An information published in the Federal Register on actions alone: collection related to the rule pertaining July 1, 1994, (59 FR 34272) to identify (1) Unauthorized collecting of the to permits for endangered and to the maximum extent practicable at species on Federal lands; threatened species has OMB approval the time a species is listed those (2) Application of pesticides/ and is assigned clearance number 1018– activities that would or would not be herbicides in violation of label 0094. This rule does not alter that likely to constitute a violation of section restrictions; information collection requirement. For 9 of the Act. The intent of this policy (3) Interstate or foreign commerce and additional information concerning is intended to increase public awareness import/export without previously permits and associated requirements for of the effect of this listing on proposed obtaining an appropriate permit. threatened species, see 50 CFR 17.32. Federal Register / Vol. 63, No. 193 / Tuesday, October 6, 1998 / Rules and Regulations 53615

References Cited recordkeeping requirements, Authority: 16 U.S.C. 1361–1407; 16 U.S.C. A complete list of all references cited Transportation. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 625, 100 Stat. 3500, unless otherwise noted. herein is available upon request, from Regulation Promulgation the Ventura Field Office (see ADDRESSES 2. Amend section 17.12(h) by adding above). Accordingly, the Service amends part the following, in alphabetical order Author. The primary author of this 17, subchapter B of chapter I, Title 50 under FLOWERING PLANTS, to the List final rule is Diane Steeck, Ventura Field of the Code of Federal Regulations, as of Endangered and Threatened Plants to Office, U.S. Fish and Wildlife Service, set forth below: read as follows: 2493 Portola Road, Suite B, Ventura, California 93003 (805/644–1766). PART 17Ð[AMENDED] § 17.12 Endangered and threatened plants. List of Subjects in 50 CFR Part 17 * * * * * 1. The authority citation for part 17 Endangered and threatened species, continues to read as follows: (h) * * * Exports, Imports, Reporting and

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

******* FLOWERING PLANTS

******* Astragalus Lane Mountain milk- U.S.A. (CA) ...... Fabaceae ...... E 647 NA NA jaegerianus. vetch.

******* Astragalus Coachella Valley U.S.A. (CA) ...... Fabaceae ...... E 647 NA NA lentiginous var. milk-vetch. coachellae.

******* Astragalus Fish Slough milk- U.S.A. (CA) ...... Fabaceae ...... T 647 NA NA lentiginous var. vetch. piscinensis.

******* Astragalus Peirson's milk-vetch U.S.A. (CA) ...... Fabaceae ...... T 647 NA NA magdalenae var. peirsonii.

******* Astragalus Triple-ribbed milk- U.S.A. (CA) ...... Fabaceae ...... E 647 NA NA tricarinatus. vetch.

Dated: September 29, 1998. Jamie Rappaport Clark, Director, U.S. Fish and Wildlife Service. [FR Doc. 98–26734 Filed 10–5–98; 8:45 am] BILLING CODE 4310±55±P