Vol. 78 Wednesday, No. 30 February 13, 2013

Part IV

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Astragalus lentiginosus var. coachellae (Coachella Valley Milk- Vetch); Final Rule

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DEPARTMENT OF THE INTERIOR Road, Suite 101, Carlsbad, CA 92011; scientific expertise to review our telephone 760–431–9440; facsimile technical assumptions, analysis, and Fish and Wildlife Service 760–431–5901. If you use a whether or not we had used the best telecommunications device for the deaf available information. We received 50 CFR Part 17 (TDD), call the Federal Information responses from two peer reviewers, who [Docket No. FWS–R8–ES–2011–0064; Relay Service (FIRS) at 800–877–8339. generally concurred with our methods 4500030114] SUPPLEMENTARY INFORMATION: and conclusions and provided additional information, clarifications, RIN 1018–AX40 Executive Summary and suggestions to improve this final Why we need to publish a rule. This rule. Information we received from peer Endangered and Threatened Wildlife is a final rule to designate critical review is incorporated in this final and Plants; Designation of Critical habitat for Astragalus lentiginosus var. revised designation. We also considered Habitat for Astragalus lentiginosus var. coachellae. Under the Endangered all comments and information received coachellae (Coachella Valley Milk- Species Act of 1973, as amended (16 from the public during the comment Vetch) U.S.C. 1531 et seq.) (Act), any species period. that is determined to be an endangered AGENCY: Fish and Wildlife Service, Previous Federal Actions Interior. or threatened species requires critical The following section summarizes the ACTION: Final rule. habitat to be designated, to the maximum extent prudent and previous Federal actions since SUMMARY: We, the U.S. Fish and determinable. Designations and Astragalus lentiginosus var. coachellae Wildlife Service (Service), designate revisions of critical habitat can only be was listed as an endangered species on critical habitat for Astragalus completed by issuing a rule. October 6, 1998 (63 FR 53596); please lentiginosus var. coachellae (Coachella We listed Astragalus lentiginosus var. refer to the final listing rule for a Valley milk-vetch) under the coachellae as an endangered species on discussion of Federal actions that Endangered Species Act of 1973, as October 6, 1998 (63 FR 53596). On occurred prior to the taxon’s listing. amended. In total, approximately 9,603 August 25, 2011, we published in the At the time of listing, we determined acres (3,886 hectares) in the Coachella Federal Register a proposed critical that designation of critical habitat was Valley area of Riverside County, habitat designation for A. l. var. ‘‘not prudent’’ (63 FR 53596). On California, fall within the boundaries of coachellae (76 FR 53224). Section November 15, 2001, the Center for this critical habitat designation. 4(b)(2) of the Act states that the Biological Diversity and the California Native Plant Society filed a lawsuit DATES: This rule becomes effective on Secretary shall designate critical habitat against the Secretary of the Interior and March 15, 2013. on the basis of the best available scientific data after taking into the Service challenging our not prudent ADDRESSES: This final rule and the consideration the economic impact, determinations for eight plant taxa, associated final economic analysis are national security impact, and any other including Astragalus lentiginosus var. available on the Internet at http:// relevant impact of specifying any coachellae (Center for Biological www.regulations.gov. Comments and particular area as critical habitat. Diversity, et al. v. Norton, case number materials received, as well as supporting The critical habitat areas we are 01–cv–2101 (S.D. Cal.)). A second documentation used in preparing this designating in this rule constitute our lawsuit asserting the same challenge final rule, are available for public current best assessment of the areas that was filed on November 21, 2001, by the inspection, by appointment, during meet the definition of critical habitat for Building Industry Legal Defense normal business hours, at the U.S. Fish Astragalus lentiginosus var. coachellae. Foundation (Building Industry Legal and Wildlife Service, Carlsbad Fish and Here we are designating approximately Defense Foundation v. Norton, case Wildlife Office, 6010 Hidden Valley 9,603 ac (3,886 ha), in 4 units as critical number 01–cv–2145 (S.D. Cal.)). On Road, Suite 101, Carlsbad, CA 92011; habitat for the taxon. May 9, 2002, all parties agreed to telephone 760–431–9440; facsimile We have prepared an economic consolidate the suits and remand the 760–431–5901. analysis of the designation of critical critical habitat determinations for the The coordinates or plot points or both habitat. In order to consider economic eight plant taxa at issue to the Service from which the maps included in the impacts, we have prepared an analysis for reconsideration. On July 1, 2002, the regulation are generated are included in of the economic impacts of the critical Court directed us to reconsider our not the administrative record for this critical habitat designation. We announced the prudent determination and if we habitat designation and are available at availability of the draft economic determined that designation was http://www.fws.gov/carlsbad/GIS/ analysis (DEA) in the Federal Register prudent, submit to the Federal Register CFWOGIS.html, http:// on May 16, 2012 (77 FR 28846), for publication a proposed critical www.regulations.gov at Docket No. allowing the public to provide habitat designation for A. l. var. FWS–R8–ES–2011–0064, and at the comments on our analysis. We coachellae by November 30, 2004, and Carlsbad Fish and Wildlife Office (see considered all comments and to submit to the Federal Register for FOR FURTHER INFORMATION CONTACT). All information received from the public publication a final rule designating additional tools or supporting during the comment period, critical habitat by November 30, 2005. information developed for this critical incorporated the comments as The proposed rule to designate critical habitat designation are also available at appropriate, and completed the final habitat for A. l. var. coachellae the Fish and Wildlife Service Web site economic analysis (FEA) concurrently published in the Federal Register on and Field Office set out above, and may with this final determination. December 14, 2004 (69 FR 74468). The also be included in the preamble and/ Peer review and public comment. We final rule designating critical habitat for or at http://www.regulations.gov. sought comments from independent A. l. var. coachellae published in the FOR FURTHER INFORMATION CONTACT: Jim specialists to ensure that our Federal Register on December 14, 2005 Bartel, Field Supervisor, U.S. Fish and designation is based on scientifically (70 FR 74112). Wildlife Service, Carlsbad Fish and sound data and analyses. We invited The Center for Biological Diversity Wildlife Office, 6010 Hidden Valley three knowledgeable individuals with filed a lawsuit on January 14, 2009,

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claiming the Service failed to designate formations that form the basis of A. l. transport areas do not provide habitat adequate critical habitat for Astragalus var. coachellae habitat in the Coachella for Astragalus lentiginosus var. lentiginosus var. coachellae (Center for Valley. coachellae and are not considered to be Biological Diversity v. Kempthorne, case within the geographical area occupied Sand Transport System number ED–cv–09–0091 VAP (AGRx) by the taxon at the time of listing. (C.D. Cal.)). In a settlement agreement Most of the sand in the northern Fluvial sand depositional areas are dated November 14, 2009, we agreed to Coachella Valley is derived from broad, flat, depositional plains or reconsider the critical habitat drainages within the Indio Hills, the San channel terraces where sediment carried designation for A. l. var. coachellae. The Bernardino Mountains, the Little San by fluvial sand transport channels is settlement required the Service to Bernardino Mountains, and the San deposited (Griffiths et al. 2002, p. 5). submit a proposed revised critical Jacinto Mountains. This sand is moved During larger flood events, sediment can habitat designation for A. l. var. into and through the valley by the sand be deposited on bajada (large, coalescing coachellae to the Federal Register by transport system. The sand transport alluvial fans) surfaces as floodplain August 18, 2011, and submit a final system consists of two main parts: (1) deposits. There are four main fluvial revised critical habitat designation to The fluvial (water) portion (headwaters, sand depositional areas in the Coachella the Federal Register by February 14, tributaries, and the stream channels Valley: (1) In the Snow Creek/Windy 2013. The proposed revised critical within the various drainages Point area, which receives sediment habitat designation was delivered to the surrounding Coachella Valley) and (2) from the San Gorgonio River and Snow Federal Register on August 17, 2011, the aeolian (wind) portion Creek (Unit 1); (2) in the Whitewater and published on August 25, 2011 (76 (predominantly westerly and Floodplain area, which receives FR 53224). A notice announcing the northwesterly winds moving through sediment from the Whitewater River availability of the draft economic the valley) (Griffiths et al. 2002, pp. 5– (Unit 2); (3) in the Willow Hole area, analysis for the proposed revised critical 7). The fluvial and aeolian portions of which receives sediment from Mission habitat designation was published in the the systems are capable of moving sand Creek and Morongo Wash (Unit 3); and Federal Register on May 16, 2012 (77 until the velocity of the water or wind (4) in the Thousand Palms area, which FR 28846). This final rule complies with decreases to a point that sand is receives sediment from washes that the terms of the settlement agreement. deposited. move sediment from the alluvial deposits at the base of the Indio Hills Background Fluvial Portion of the Sand Transport System (Unit 4). The fluvial sand depositional It is our intent to discuss in this final areas associated with Units 1, 2, and 3 rule only those topics directly relevant The water that forms the basis of the do provide habitat for Astragalus to the revision of critical habitat for fluvial portion of the sand transport lentiginosus var. coachellae, are Astragalus lentiginosus var. coachellae system in the Coachella Valley enters currently occupied, and were within the under the Act (16 U.S.C. 1531 et seq.). the system as precipitation during storm geographical area occupied by the taxon For more information on the taxonomy, events (Griffiths et al. 2002, p. 5). These at the time of listing. The fluvial sand biology, and ecology of A. l. var. storm events cause flash flooding, depositional areas associated with Unit coachellae, please refer to: the final which facilitates the erosion that 4 are not known to provide habitat for listing rule published in the Federal generates sediment, and moves that the taxon, and are not considered to be Register on October 6, 1998 (63 FR sediment downstream in ephemeral within the geographical area occupied 53596); the first rule proposing streams and washes and eventually into by the taxon at the time of listing. designation of critical habitat published the aeolian transport corridor. Most in the Federal Register on December 14, flooding events only transport small Aeolian Portion of the Sand Transport 2004 (69 FR 74468); the subsequent amounts of sediment to the valley floor; System critical habitat final rule published in flooding events large enough to move The aeolian portion of the sand the Federal Register on December 14, large amounts of sediment are very transport system begins where the 2005 (70 FR 74112); and the recent infrequent (for example, the last large fluvial portion of the system ends. proposed rule to designate critical flooding event on the Whitewater River Northerly and northwesterly winds pick habitat published in the Federal occurred in 1938) (Griffiths et al. 2002, up sand-sized grains of sediment Register on August 25, 2011 (76 FR p. 5). accumulated in fluvial sand 53224). Additionally, more information Fluvial sand transport areas are depositional areas, and carry them on the taxon can be found in the A. l. stream channels that convey sediment south/southeast through the valley and var. coachellae 5-year review (Service downstream to fluvial sand depositional into aeolian depositional areas where 2009). areas. In the portions of the Coachella they form sand fields and dunes Except when referencing statutory Valley containing Units 1, 2, and 3, very (Griffiths et al. 2002, p. 7). language, we refer to Astragalus little erosion of parent rock or sediment Aeolian sand source areas are the lentiginosus var. coachellae as a taxon deposits takes place in fluvial transport portions of the fluvial depositional areas in this document because it is not a areas compared to areas upstream where that are subject to wind erosion. Winds species itself, but rather a variety of the the sediment is generated. In Unit 4, erode these sediment accumulations species Astragalus lentiginosus. sediment is generated in the same area and carry sand across aeolian sand Information on the associated draft where fluvial sand transport occurs. transport areas. Between flooding economic analysis for the proposed rule Fluvial transport channels include events, which replenish the sediment in to designate revised critical habitat was portions of the lower reaches of San fluvial sand depositional areas, sand published in the Federal Register on Gorgonio River and Snow Creek (Unit available for aeolian transport can be May 16, 2012 (77 FR 28846). 1), Whitewater River (Unit 2), Mission depleted by wind erosion. Aeolian sand To ensure clarity of habitat Creek and Morongo Wash (Unit 3), and source areas provide habitat for discussions in the remainder of this unnamed channels through the alluvial Astragalus lentiginosus var. coachellae, rule, in the following paragraphs we valley floor deposits (relatively flat areas are currently occupied, and were within have included a description of the sand (< 10 percent slope)) at the base of the the geographical area occupied by the transport system that sustains the sand Indio Hills (Unit 4). Fluvial sand taxon at the time of listing.

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Sand eroded from the aeolian sand Valley are generated from several of the Western Riverside County source areas is blown into and across drainage basins in the San Bernardino, MSHCP, but they are inholdings (that is, the aeolian sand transport areas. Sand Little San Bernardino, and San Jacinto they are not covered by or subject to the may accumulate in aeolian transport Mountains and the Indio Hills provisions of the Western Riverside areas when ample sand is available in (Lancaster et al. 1993, pp. i–ii; Griffiths County MSHCP or any other habitat upwind source areas; conversely, et al. 2002, p. 10). Sediment is eroded conservation plan). All other acreages aeolian transport areas may be depleted and washed from hill slopes and reported in the proposed rule are correct of sand when sand is lacking upwind. channels in the local hills and alluvial to the best of our knowledge, and the Aeolian sand transport areas provide sand deposits in the Thousand Palms boundaries of the proposed revised habitat for Astragalus lentiginosus var. area (Unit 4), and is transported critical habitat remain the same as coachellae, are currently occupied, and downstream in stream channels and described in the proposed rule. No part were within the geographical area within alluvial fans during infrequent of the proposed critical habitat for A. l. occupied by the taxon at the time of flood events (Lancaster et al. 1993, p. var. coachellae is covered by the listing. 28; Griffiths et al. 2002, p. 7). Fluvial Western Riverside County MSHCP. Sand carried by wind through the sand transport is the dominant Since publication of the proposed aeolian sand transport areas is deposited mechanism that moves sediment into revised critical habitat rule for when the velocity of the wind decreases fluvial sand depositional areas in the Astragalus lentiginosus var. coachellae sufficiently. This occurs mainly where Coachella Valley (Griffiths et al. 2002, p. in the Federal Register on August 25, wind is slowed by vegetation (for 7). The largest sand depositional area in 2011 (76 FR 53224), we have received example, honey mesquite in the Willow the Coachella Valley is in the new GIS parcel data describing land Hole area), other objects, or geological Whitewater River floodplain, northwest ownership in the Coachella Valley. features. In general, sand formations (for of the City of Palm Springs (Griffiths et Because we used this new data to example, sand dunes and sand fields) al. 2002, p. 5). generate acreages for the final rule, persist in aeolian sand depositional The San Gorgonio Pass is between the acreages in the final rule may not match areas, whereas sand accumulations in two highest peaks in southern proposed critical habitat acreages for all transport areas are more ephemeral. California: San Gorgonio Mountain land ownership categories (see Table 1). Aeolian sand depositional areas provide (11,510 feet (ft) (3,508 meters (m))) to The new data also allowed us to remove habitat for Astragalus lentiginosus var. the north and San Jacinto Mountain roads from the acreages calculated for coachellae, and support the highest (10,837 ft (3,303 m)) to the south. this final rule (critical habitat does not numbers of the taxon within the Westerly winds funneling through San include manmade structures (such as geographical area occupied by the taxon Gorgonio Pass are the dominant buildings, aqueducts, runways, roads, currently and at the time of listing. mechanism by which aeolian sands are and other paved areas) and the land on The fluvial and aeolian processes transported from bajadas and fluvial which they are located). The acreage of discussed above have been disrupted in sand depositional areas to aeolian sand lands designated as critical habitat and many areas by development, alteration deposits in the Coachella Valley (Sharp lands excluded from the critical habitat of stream flow, and the proliferation of and Saunders 1978, p. 12; Griffiths et al. designation (please see the Exclusions nonnative plants. These threats to the 2002, p. 1). Astragalus lentiginosus var. section for a discussion of the lands persistence of Astragalus lentiginosus coachellae is associated with various excluded from the designation under var. coachellae habitat are discussed types of sand formations that are formed section 4(b)(2) of the Act) still sum to further in the Special Management by these aeolian sand deposits (Sanders the total acreage of lands proposed as Considerations or Protection section and Thomas Olsen Associates 1996, p. critical habitat, minus the area occupied below. 3). The sandy substrates suitable for by roads. A total of 255 ac (103 ha) of Astragalus lentiginosus var. coachellae Summary of Changes From Proposed roads have been removed from this are dynamic in terms of spatial mobility Rule designation. and tendency to change back and forth In the notice announcing the Critical Habitat from active to stabilized (Lancaster availability of the draft economic 1995, p. 231). This has significant analysis for public review (77 FR 28846, Background consequences for A. l. var. coachellae May 16, 2012), we made a correction to Critical habitat is defined in section because the plant’s population densities the proposed revised critical habitat for 3(5)(A) of the Act as: differ on different types of sandy Astragalus lentiginosus var. coachellae (1) The specific areas within the substrates, and the dynamics of the as identified and described in the geographical area occupied by the fluvial and aeolian sand transport preamble to the proposed rule species, at the time it is listed in processes create the variety of substrate published in the Federal Register on accordance with the Act, on which are types that support occurrences of the August 25, 2011 (76 FR 53224). The found those physical or biological taxon. correction was to the description of Unit features Dynamics of sandy substrates in the 1 (76 FR 53240). We proposed 316 acres (a) Essential to the conservation of the Coachella Valley are controlled by two (ac) (128 hectares (ha)) of tribal land species, and main factors: (1) The supply of sand- (Morongo Band of Mission Indians) and (b) Which may require special sized sediment released, transported, 1,791 ac (725 ha) of private land as management considerations or and deposited by the fluvial system critical habitat in Unit 1. Of this area, protection; and (water-transported); and (2) the rate of we characterized 156 ac (63 ha) of tribal (2) Specific areas outside the aeolian (windblown) transport (Griffiths land and 1 ac (0.4 ha) of private land as geographical area occupied by the et al. 2002, pp. 4–8). The latter is being covered under the Western species at the time it is listed, upon a affected primarily by wind fetch (the Riverside County Multiple Species determination that such areas are length of unobstructed area exposed to Habitat Conservation Plan (Western essential for the conservation of the the wind). Riverside County MSHCP), due to an species. As discussed above, most of the incorrect interpretation of GIS data. Conservation, as defined under suitable sandy habitats in the Coachella These lands are within the boundaries section 3 of the Act, means to use and

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the use of all methods and procedures elements (primary constituent elements guidance to ensure that our decisions that are necessary to bring an such as roost sites, nesting grounds, are based on the best scientific data endangered or threatened species to the seasonal wetlands, water quality, tide, available. They require our biologists, to point at which the measures provided soil type) that are essential to the the extent consistent with the Act and pursuant to the Act are no longer conservation of the species. Primary with the use of the best scientific data necessary. Such methods and constituent elements are those specific available, to use primary and original procedures include, but are not limited elements of the physical or biological sources of information as the basis for to, all activities associated with features that provide for a species’ life- recommendations to designate critical scientific resources management such as history processes and are essential to habitat. research, census, law enforcement, the conservation of the species. When we are determining which areas habitat acquisition and maintenance, Under section 3(5)(A)(ii) of the Act’s should be designated as critical habitat, propagation, live trapping, and definition of critical habitat, we can our primary source of information is transplantation, and, in the designate critical habitat in areas generally the information developed extraordinary case where population outside the geographical area occupied during the listing process for the pressures within a given ecosystem by the species at the time it is listed, species. Additional information sources cannot be otherwise relieved, may upon a determination that such areas may include the recovery plan for the include regulated taking. are essential for the conservation of the species, articles in peer-reviewed Critical habitat receives protection species. For example, an area currently journals, conservation plans developed under section 7 of the Act through the occupied by the species but that was not by States and counties, scientific status requirement that Federal agencies occupied at the time of listing may be surveys and studies, biological ensure, in consultation with the Service, essential for the conservation of the assessments, other unpublished that any action they authorize, fund, or species and may be included in the materials, or experts’ opinions or carry out is not likely to result in the critical habitat designation. We personal knowledge. destruction or adverse modification of designate critical habitat in areas Habitat is dynamic, and species may critical habitat. The designation of outside the geographical area occupied move from one area to another over critical habitat does not affect land by a species only when a designation time. We recognize that critical habitat ownership or establish a refuge, limited to its range would be inadequate designated at a particular point in time wilderness, reserve, preserve, or other to ensure the conservation of the may not include all of the habitat areas conservation area. Such designation species. that we may later determine are does not allow the government or public The geographical area occupied by necessary for the recovery of the to access private lands. Such Astragalus lentiginosus var. coachellae species. For these reasons, a critical designation does not require at the time it was listed (1998) that habitat designation does not signal that implementation of restoration, recovery, contains the physical or biological habitat outside the designated area is or enhancement measures by non- features essential to the conservation of unimportant or may not be needed for Federal landowners. Where a landowner the species that may require special recovery of the species. Areas that are requests Federal agency funding or management considerations or important to the conservation of the authorization for an action that may protection includes ‘‘the Coachella species, both inside and outside the affect a listed species or critical habitat, Valley between [the cities of] Cabazon critical habitat designation, will the consultation requirements of section and Indio’’ (63 FR 53598). We are continue to be subject to: (1) 7(a)(2) of the Act would apply, but even designating these areas under section Conservation actions implemented in the event of a destruction or adverse 3(5)(A)(i) of the Act’s definition of under section 7(a)(1) of the Act, (2) modification finding, the obligation of critical habitat. At the time of listing, regulatory protections afforded by the the Federal action agency and the the fluvial sand transport areas were not requirement in section 7(a)(2) of the Act landowner is not to restore or recover occupied (nor are they occupied today); for Federal agencies to insure their the species, but to implement a however, we have identified fluvial actions are not likely to jeopardize the reasonable and prudent alternative to sand transport areas as essential for the continued existence of any endangered avoid destruction or adverse conservation of A. l. var. coachellae or threatened species, and (3) modification of critical habitat. under section 3(5)(A)(ii) of the Act’s prohibitions described in section 9 of Under section 3(5)(A)(i) of the Act’s definition of critical habitat, the Act. Federally funded or permitted definition of critical habitat, areas i.e.,’’[s]pecific areas outside the projects affecting listed species outside within the geographical area occupied geographical area occupied by the their designated critical habitat areas by the species at the time it was listed species at the time it is listed, upon a may still result in jeopardy findings in are included in a critical habitat determination that such areas are some cases. These protections and designation if they contain physical or essential for the conservation of the conservation tools will continue to biological features (1) which are species.’’ contribute to recovery of this species. essential to the conservation of the Section 4 of the Act requires that we Similarly, critical habitat designations species and (2) which may require designate critical habitat on the basis of made on the basis of the best available special management considerations or the best scientific and commercial data information at the time of designation protection. For these areas, critical available. Further, our Policy on will not control the direction and habitat designations identify, to the Information Standards Under the substance of future recovery plans, extent known using the best scientific Endangered Species Act (published in habitat conservation plans (HCPs), or and commercial data available, those the Federal Register on July 1, 1994 (59 other species conservation planning physical or biological features that are FR 34271)), the Information Quality Act efforts if new information available at essential to the conservation of the (section 515 of the Treasury and General the time of these planning efforts calls species (such as space, food, cover, and Government Appropriations Act for for a different outcome. protected habitat). In identifying those Fiscal Year 2001 (Pub. L. 106–554; H.R. physical and biological features within 5658)), and our associated Information Physical or Biological Features an area, we focus on the principal Quality Guidelines provide criteria, In accordance with sections 3(5)(A)(i) biological or physical constituent establish procedures, and provide and 4(b)(1)(A) of the Act and regulations

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at 50 CFR 424.12, in determining which the different formations that support although they currently contain sand areas within the geographical area habitat (for example, active dunes and formations, will eventually lose these occupied by the species at the time of sand fields). Protecting aeolian sand formations as the winds remove sand listing to designate as critical habitat, transport corridors between A. l. var. over time. Therefore, based on the we consider the physical or biological coachellae occurrences is also important information above, we identify the other features essential to the conservation of for the dispersal of the species’ above-mentioned sand formations the species and which may require windblown fruits into temporally (active sand dunes, stabilized or special management considerations or unoccupied habitat to reestablish partially stabilized dunes, active sand protection. These include, but are not reproductive occurrences fields, stabilized sand fields, ephemeral limited to: (metapopulation structure). Astragalus sand fields, and alluvial sand deposits (1) Space for individual and lentiginosus var. coachellae can produce on floodplain terraces of active washes) population growth and for normal fruit and viable seed at very low rates to be a physical or biological feature behavior; without the aid of insect pollinators, but essential to the conservation of this (2) Food, water, air, light, minerals, or is dependent upon insect pollinators to taxon. other nutritional or physiological generate the amount of seed typically The specific physiological and soil requirements; produced by individuals of the taxon nutritional needs of Astragalus (3) Cover or shelter; (Meinke et al. 2007, p. 37; also see lentiginosus var. coachellae are not (4) Sites for breeding, reproduction, or comment number 7 in the Summary of known at this time. The taxon shows rearing (or development) of offspring; Comments and Recommendations variation in productivity and life-history and section below). Protecting aeolian sand patterns that appear to coincide with (5) Habitats that are protected from transport corridors also provides space local variations in precipitation (wetter disturbance or are representative of the for pollinator movement between years result in higher levels of seed historical, geographical, and ecological occurrences, which is important for the germination (for example, Barrows distributions of a species. long-term maintenance of occurrences. 1987, p. 2)) and variations across its We derive the specific physical or Therefore, based on the information range (plants in the northwestern biological features essential to above, we identify areas supporting portion of the range where rainfall is Astragalus lentiginosus var. coachellae aeolian sand transport corridors that higher are more likely to grow larger from studies of this taxon’s habitat, provide space for seed dispersal and and survive into their second year or ecology, and life history as described in pollinator movement, to be physical or longer (Meinke et al. 2007, p. 25)). the Critical Habitat section of the biological features essential to the However, the specific optimal soil proposed critical habitat rule published conservation of this taxon. moisture range for the taxon is in the Federal Register on August 25, unknown. 2011 (76 FR 53224), and in the Food, Water, Air, Light, Minerals, or Additionally, the taxon does not grow information presented below. Other Nutritional or Physiological in some areas that appear to contain Additional information can be found in Requirements suitable habitat. For example, the final listing rule published in the Astragalus lentiginosus var. Astragalus lentiginosus var. coachellae Federal Register on October 6, 1998 (63 coachellae is primarily found on various grows on some portions of the alluvial FR 53596), and the 5-year review for A. types of sand formations including sand deposits on floodplain terraces of l. var. coachellae signed on September active sand dunes, stabilized or partially Morongo Wash, but not others, and it 1, 2009 (Service 2009). We have stabilized dunes, active sand fields, does not grow in the bed of the wash determined that A. l. var. coachellae stabilized sand fields, shielded sand when the bed is dry even though the requires the following physical or dunes and fields, ephemeral sand fields, bed contains sandy substrates (J. Avery, biological features: and alluvial sand deposits on floodplain USFWS Biologist, pers. obs. 2004– terraces of active washes. Each of these 2009). These apparent inconsistencies Space for Individual and Population sand deposit formations provides may be due to microsite differences Growth and for Normal Behavior habitat for A. l. var. coachellae to (such as nutrient availability, soil Astragalus lentiginosus var. varying degrees (see Habitat section of microflora or microfauna, soil texture, coachellae has a limited geographical the proposed critical habitat rule for A. or moisture). Research is needed to and ecological distribution. Within its l. var. coachellae for further discussion determine the specific nutritional and limited range, A. l. var. coachellae of sand formations that support the physiological requirements of A. l. var. requires space for the essential taxon (76 FR 53226)). The taxon also coachellae. geomorphological processes on which it requires moving water and air to depends, including natural fluvial transport sand from areas where the Sites for Reproduction (water) and aeolian (wind) transport and sand originates to occupied habitat areas Astragalus lentiginosus var. deposition of sandy substrates (see the (depositional areas) (precipitation coachellae plants, like most plants, do Habitat section of the proposed critical occurs mostly during large winter not require areas for breeding or habitat rule for A. l. var. coachellae for storms and intense summer reproduction other than the areas they more detailed discussion of fluvial and thunderstorms (Griffiths et al. 2002, p. occupy and any area necessary for aeolian sand transport in Coachella 5)). Astragalus lentiginosus var. pollinators and seed dispersal. Valley (76 FR 53226)). Protection of coachellae can be found in abundance Reproduction sites accommodate all aeolian and fluvial processes is crucial on shielded sand fields, and the A. l. phases of the plant’s life history. Seeds to maintain habitat for A. l. var. var. coachellae plants in these areas are likely require certain soil conditions to coachellae. These processes are important for the conservation of the germinate (for example, moisture and responsible for transporting and taxon. However, we do not consider nutrient levels within a certain range or depositing sand that is the foundation of shielded habitat to contain the physical close proximity to the soil surface), but habitat for A. l. var. coachellae. or biological features essential to the as discussed above, we do not yet know Disruption, redirection, or curtailment conservation of the taxon because these what those requirements are. In of these processes can result in a lack of areas are permanently cut off from the addition, wind is important for the adequate amounts of sand to produce sand transport system. Shielded areas, dispersal of the windblown fruits into

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temporally unoccupied habitat coachellae habitat, temporally shifting in (b) to be within the geographical area (metapopulation structure) of A. l. var. A. l. var. coachellae habitat into other occupied by Astragalus lentiginosus var. coachellae. areas, and thereby allowing the taxon to coachellae at the time the taxon was The primary visitors of Astragalus be dispersed and to colonize new areas listed, whereas the fluvial sand lentiginosus var. coachellae appear to be or recolonize previously occupied areas. transport areas referenced in (c) are nonnative honeybees (Apis mellifera) As a result, it is also necessary to protect considered to be outside the (Meinke et al. 2007, p. 36). These bees sufficient space to allow for these geographical area occupied by the taxon appear to be flexible in their choice of dynamic aeolian sand deposits to shift at the time of listing or currently. The nesting sites. For example, bee nests in their distribution. Therefore, based sand formations provide substrate were found in discarded tires, in on the information above, we identify components and conditions suitable for Tamarix spp. trees, and under a bridge the fluvial and aeolian portions of the growth. The aeolian sand transport near A. l. var. coachellae occurrences sand transport system that provide corridor also provides space for seed (Meinke et al. 2007, p. 36). habitat protected from disturbance or dispersal and pollinator movement Native solitary bees, which may be representative of the historical, needed to maintain sand movement and the natural pollinators of Astragalus geographical, and ecological genetic diversity of the taxon. lentiginosus var. coachellae, utilize distributions of the taxon to be a With this designation of critical several plant species as pollen and physical or biological feature essential habitat, we identify the physical or nectar sources (Karron 1987, p. 188). to the conservation of this taxon. biological features essential to the Maintaining adequate populations of conservation of the taxon, focusing on these bees within or near A. l. var. Primary Constituent Element for the identification of the features’ coachellae occurrences, as well as Astragalus lentiginosus var. coachellae primary constituent element sufficient between A. l. var. coachellae Under the Act and its implementing to support the life-history processes of occurrences, likely depends on the regulations, we are required to identify the taxon. presence of a variety of native plants in the physical or biological features Special Management Considerations or sufficient numbers. We do not know, essential to the conservation of Protection however, why native bees have not yet Astragalus lentiginosus var. coachellae been observed pollinating A. l. var. within the geographical area occupied at When designating critical habitat, we coachellae. Until specific pollinators for the time of listing, focusing on the assess whether the specific areas within A. l. var. coachellae are identified, we features’ primary constituent elements the geographical area occupied by the are unable to consider protection of (PCEs). Primary constituent elements species at the time of listing contain those pollinators’ specific habitat are those specific elements of the features that are essential to the explicitly via this critical habitat physical or biological features that conservation of the species and that may designation. Therefore, based on the provide for a species’ life-history require special management information above, we identify aeolian processes. considerations or protection. The sand transport corridors as providing Based on our current knowledge of features essential to the conservation of space needed for pollen and seed the physical or biological features and this taxon may require special dispersal and pollinator movement to be habitat characteristics required to management considerations or a physical or biological feature essential sustain the taxon’s life-history protection to reduce the following to the conservation of this taxon. processes, we determine that the threats: direct and indirect effects of primary constituent element specific to development (urban and recreational), Habitats Protected From Disturbance or nonnative plant species, unauthorized Representative of the Historical, Astragalus lentiginosus var. coachellae is: off-highway vehicle (OHV) impacts, Geographical, and Ecological mining and other activities or structures Distributions of the Taxon Sand formations associated with the sand transport system in Coachella that may cause alteration of stream flow, Astragalus lentiginosus var. Valley, California. These sand and groundwater pumping. coachellae is strongly associated with formations have the following features: Development active, stabilized, ephemeral, and (a) They are active sand dunes, shielded sandy substrates in the stabilized or partially stabilized sand The Coachella Valley continues to Coachella Valley (Sanders and Thomas dunes, active or stabilized sand fields attract increasing numbers of people Olsen Associates 1996, p. 3; Barrows (including hummocks forming on and associated urban development. and Allen 2007, p. 323). This taxon is leeward sides of shrubs), ephemeral Urban and recreational development primarily found on loose aeolian (wind sand fields or dunes, and fluvial sand can impact Astragalus lentiginosus var. transported) or fluvial (water deposits on floodplain terraces of active coachellae directly by converting transported) sands that form dunes or washes. suitable, often-occupied, habitat to sand fields and along margins of sandy (b) They are found within the fluvial structures, infrastructure, landscaping, washes (Sanders and Thomas Olsen sand depositional areas, and the aeolian or other nonnatural ground cover that Associates 1996, p. 3). Please see the sand source, transport, and depositional does not support the growth of the Background section above for a areas of the sand transport system. taxon. Structures and landscaping can description of the sand transport (c) They comprise sand originating in also impact A. l. var. coachellae habitat system. the hills surrounding Coachella Valley indirectly by altering local aeolian and In order to maintain adequate and alluvial deposits at the base of the fluvial regimes. Such alterations can replenishment of sands into aeolian Indio Hills, which is moved into the result in degraded A. l. var. coachellae sand depositional areas, it is important valley by water (fluvial transport) and habitat downstream or downwind of that sand-transport corridors between through the valley by wind (aeolian developed areas by inhibiting the fluvial and aeolian sand depositional transport). movement of loose, unconsolidated areas remain unobstructed for wind We consider the fluvial sand sands needed for the formation and passage. The strong wind energy in this depositional areas and the aeolian sand maintenance of suitable habitat vital to region can also erode sands from wash source, transport, and depositional areas the growth and reproduction of the margins and suitable A. l. var. of the sand transport system described taxon. If the sand transport system is

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altered, sand cannot be moved through tragus (Russian-thistle), can impact remains on many privately owned the valley effectively to replace sand Astragalus lentiginosus var. coachellae lands. lost from the system downstream/ habitat by stabilizing loose sediments Alteration of Stream Flow downwind as a result of ongoing fluvial and reducing transport of sediment to and aeolian processes. downwind areas, thus making habitat The construction and operation of Special management considerations unsuitable for A. l. var. coachellae. water percolation ponds, sand and or protection of the essential physical or Additionally, Tamarix spp. (salt cedar) gravel mines, and, to a lesser degree, biological features within critical habitat can create wind breaks in the aeolian dikes and debris dams can negatively areas are needed to address the threats transport system and is used to decrease impact Astragalus lentiginosus var. posed to Astragalus lentiginosus var. the movement of sand, for example, coachellae habitat if they prevent the coachellae habitat by urban and onto railroad tracks and infrastructure fluvial transport of sand to habitat areas recreational development. Management right-of-ways in the Coachella Valley. through diversion, channelization, or actions that could ameliorate these Dense cover of nonnative taxa may also damming (Griffiths et al. 2002, pp. 13, threats include, but are not limited to: impede the natural wind dispersal of 23). For example, the percolation ponds Protection of lands that support suitable the mature fruits of A. l. var. coachellae. constructed on BLM and Coachella habitat and associated sand transport This will curtail natural reproduction Valley Water District lands in the systems and siting future development within a given site and natural dispersal Whitewater River floodplain have such that disruption of fluvial and to repopulate temporally unoccupied substantially altered the transport of aeolian sand transport processes is sites. sand to habitat areas downstream and minimized and deposition areas are Management activities that could downwind, resulting in the severe preserved. These management actions ameliorate these threats include, but are degradation of sand and loss of A. l. var. will protect the essential physical or not limited to: Active removal of coachellae habitat in these areas biological features for the taxon by nonnative plant species and targeted (Griffiths et al. 2002, pp. 6, 42). decreasing the direct loss of habitat to herbicide application (provided Management activities that could development and by helping to herbicides can be shown not to ameliorate the threats posed to maintain the sand transport system and negatively impact Astragalus Astragalus lentiginosus var. coachellae sand deposition areas that together lentiginosus var. coachellae plants or habitat by alteration of stream flow provide the sand formations that are seeds). These management activities include, but are not limited to: Working necessary components of A. l. var. will protect the essential physical or with concerned parties to find and coachellae habitat. biological features for the taxon by implement alternatives that allow for Preserving large areas of suitable helping to control nonnative plants, the removal or reconfiguration of habitat with intact wind and which can degrade Astragalus existing barriers to fluvial sand depositional regimes and preserving lentiginosus var. coachellae habitat. transport, restoring sand transport to a areas vital to the maintenance of the more natural state, and working with sand transport system are important to Unauthorized Off-Highway Vehicle concerned parties to design and maintain existing habitat and prevent (OHV) Impacts implement future projects to maximize further habitat loss. Preserving a variety Unauthorized OHV use may impact conservation/restoration of natural sand of different habitat types (for example, Astragalus lentiginosus var. coachellae transport. These management activities sand dunes, sand fields) throughout the habitat by making substrate conditions will protect the essential physical or range of the taxon should help maintain unsuitable for growth through the biological features for the taxon by the genetic and demographic diversity alteration of the sand transport system, helping to maintain the sand transport (individuals in different age classes at changes in plant community system that provides the sand that any given time) of Astragalus composition, and disruption of the creates the sand formations that form lentiginosus var. coachellae. substrate, which can cause soils to lose the basis of A. l. var. coachellae habitat. Designing and orienting structures, moisture and may also impact soil Groundwater Pumping infrastructure, and landscaping such microflora or microfauna (USFWS 2008, that they minimize the blockage of sand p. 8766). The native plant community Hummocks (local accumulations of movement will also help to prevent the associated with A. l. var. coachellae sand that form when sand accumulates disruption of the sand transport system habitat allows for sand movement and around, and is held in place by, shrubs and further habitat loss. For example, does not inhibit dispersal. Disturbance or clumps of vegetation) formed by orienting a building so that the face of from OHV use can affect the plant Prosopis spp. (mesquite, which has the building is at an oblique angle with composition of the native plant deep tap roots to reach groundwater, the prevailing wind direction may allow community. Management activities that and is thus adversely impacted when more sand to move around the building could ameliorate the threat of the groundwater table is lowered than would occur if the face of the unauthorized OHV use include fencing beyond the reach of its roots) and other building were at a right angle with the and signage of habitat areas to assist in shrubs contribute to the creation and direction of windblown sand educating the public and engaging local stabilization of sand dunes and sand movement. Planning development such authorities to improve the enforcement fields by anchoring dunes and making that structures and landscaping are of laws prohibiting OHV unauthorized them less vulnerable to wind erosion. located outside of areas vital to sand use. Control of unauthorized OHV use Windblown sand accumulates in areas transport will also help lessen the in habitat occupied by A. l. var. where wind speed is reduced (by degradation of Astragalus lentiginosus coachellae has recently improved topographical features, rocks, shrubs, or var. coachellae habitat. through the efforts of a local law other objects) near the ground enforcement task force in habitat areas (Fryberger and Ahlbrandt 1979, p. 440). Nonnative Plants including lands managed by the Bureau Prosopis glandulosa var. torreyana Invasive nonnative plant species, of Land Management (BLM) in the (honey mesquite) is the native mesquite such as Brassica tournefortii (Saharan Willow Hole (depositional area in Unit in western Riverside County. The mustard), Schismus barbatus 3) and Snow Creek (depositional area in shrubs in the hummock help to stabilize (Mediterranean grass), and Salsola Unit 1) areas, although OHV use and support sand deposits around the

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hummock, which support Astragalus negligible level, the threats affecting l. var. coachellae may only be occupied by lentiginosus var. coachellae occurrences each unit or subunit and to preserve and seed in the soil seed bank and not [by an] and its sand dune and field habitat. maintain the essential features that the easily identifiable vegetative form[,] the These shrubs, unlike nonnative plants predictive power of a model is similarly critical habitat units and subunits important.’’ (Knaus, 2011, p. 1) used as windbreaks as discussed above, provide to A. l. var. coachellae. do not degrade A. l. var. coachellae Additional discussions of threats facing Suitable habitat may be occupied by habitat by substantially blocking individual sites are provided in the the taxon even if no plants appear movement of sand to habitat areas individual unit descriptions in the above-ground for several years. downwind. The mesquite shrubs in the Critical Habitat Designation section Astragalus lentiginosus var. coachellae Banning Fault/Willow Hole area are below. populations survive seasonal and senescent and appear to be dying, likely annual drought periods through due to ongoing artificial lowering of Criteria Used To Identify Critical dormant seeds in the soil (seed bank) as groundwater levels in the subbasin to Habitat well as root crowns. Consequently, the provide water for human use (Mission As required by section 4(b)(2) of the number of standing plants at any given Springs Water District 2008, p. 4–97). Act, we use the best scientific and time is only a limited indication of Similar mesquite hummocks that commercial data available to designate population size (Meinke et al. 2007, p. existed historically have already been critical habitat. We reviewed available 39). It is not known how long A. l. var. lost in and near the Thousand Palms information pertaining to the habitat coachellae seeds remain viable, but Reserve (in the Thousand Palms requirements of the species. In studies on A. l. var. micans demonstrate Conservation Area), likely due to accordance with the Act and its that buried seeds may remain viable for groundwater withdrawals (based on implementing regulation at 50 CFR at least 8 years (Pavlik and Barbour water well log data, field observation, 424.12(e), we considered whether 1988, p. 233). A study including and aerial photos) (J. Avery, pers. obs. designating additional areas—outside Astragalus lentiginosus var. salinus 2006). Loss of the anchoring mesquite those currently occupied as well as found that more than 94 percent of shrubs will lead to the loss of the those occupied at the time of listing— seeds remained viable after being buried associated hummocks over time by the are necessary to ensure the conservation in the soil for 6 years (Ralphs and erosion of sand deposits, therefore of the species. We relied on information Cronin 1987, p. 794). Therefore, we also affecting A. l. var. coachellae habitat in articles in peer-reviewed journals, the considered areas to be occupied where created or maintained by the trapping of Coachella Valley MSHCP/NCCP, survey suitable habitat did not contain sand. reports and other unpublished aboveground individuals, but likely Management activities that could materials, and expert opinion or contain seed banks and dormant root ameliorate the threats posed to personal knowledge. We also used the crowns of A. l. var. coachellae. Astragalus lentiginosus var. coachellae model developed by the Coachella We also determined which areas habitat by groundwater pumping Valley Mountains Conservancy (CVMC) outside the geographical area occupied include, but are not limited to: to help identify Astragalus lentiginosus by the taxon at the time of listing that Subsurface irrigation of existing var. coachellae habitat (CVMC 2004). provide for the fluvial transport of sand mesquite plants, and the planting, Finally, we used information from the from areas where sediment is generated restoring, and irrigating of mesquite proposed (69 FR 74468; December 14, to fluvial depositional areas occupied by where needed; and removal of extensive 2004) and final (70 FR 74112; December Astragalus lentiginosus var. coachellae tamarisk, which can compete with A. l. 14, 2005) critical habitat rules, the are essential for the conservation of A. var. coachellae for groundwater, along current 5-year status review (Service l. var. coachellae because they maintain railroad rights-of-way, water courses, 2009), the proposed revised critical A. l. var. coachellae habitat (see steps 1, oases, etc. These management activities habitat rule (76 FR 53224; August 25, 2, and 3 under Areas Outside the will protect the essential physical or 2011), and other information in our Geographical Area Occupied at the biological features for A. l. var. files. Time of Listing section below). coachellae by helping to maintain much We are designating critical habitat in We defined the boundaries of each of the extant mesquite hummocks areas within the geographical area unit using the steps outlined below: within the range of the taxon and by occupied by the species at the time of Areas Within the Geographical Area restoring an undetermined acreage of listing in 1998. We also are designating Occupied at the Time of Listing historical mesquite hummocks that specific areas outside the geographical (1) Potential suitable habitat for maintain (or will maintain) portions of area occupied by A. l. var. coachellae at Astragalus lentiginosus var. coachellae A. l. var. coachellae habitat. the time of listing, because we have was first identified using areas included In summary, threats to Astragalus determined that such areas are essential in the Coachella Valley Mountains lentiginosus var. coachellae habitat for the conservation of the taxon. These Conservancy (CVMC) species include urban and recreational areas support sand transport processes distribution model for the taxon (CVMC development, nonnative plant species, that are vital to maintaining suitable 2004). The CVMC model was developed OHV impacts, alteration of stream flow, habitat, and therefore are essential for using survey data for A. l. var. and groundwater pumping. We find that the conservation of the taxon. the areas designated as critical habitat Our use of a habitat model to help coachellae (Bureau of Land within the geographical area occupied identify Astragalus lentiginosus var. Management, unpublished data 2001), by the taxon at the time of listing coachellae habitat was supported by a habitat variables, and expert opinion, contain the physical or biological peer reviewer who stated, and was created to assist in the design features essential to the conservation of of preserves and to evaluate the A. l. var. coachellae and that these ‘‘Because A. l. var. coachellae is reliant on potential benefits of the (then) proposed features may require special specialized, dynamic, habitat where not only Coachella Valley MSHCP/NCCP for the the habitat must be preserved but the management considerations or processes which create the habitat must be plant (CVMC 2004). Environmental protection. Special management preserved[,] prediction of this habitat may be variables associated with A. l. var. considerations or protection may be easier than documenting it. Because much of coachellae occurrence locations were required to eliminate, or reduce to a the habitat which is currently occupied by A. identified, and maps containing those

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variables were combined with discussed in Areas Outside the regardless of the fact that these areas are Geographic Information Systems (GIS) Geographical Area Occupied at the outside the geographical area occupied land use and habitat data to create the Time of Listing section below). Modeled by A. l. var. coachellae at the time the model. Eight types of habitats were used A. l. var. coachellae habitat areas that species was listed. We used the in the model: (1) Margins of active are covered by the Coachella Valley following steps to determine which dunes, (2) active shielded desert dunes, MSHCP/NCCP but are outside of the portions of the fluvial sand transport (3) stabilized desert dunes, (4) stabilized Conservation Areas may contain the system are essential for the conservation sand fields, (5) stabilized shielded sand PCE, but for reasons discussed above, of A. l. var. coachellae: fields, (6) ephemeral sand fields, (7) we do not consider these areas to meet Units 1, 2, and 3 active sand fields, and (8) mesquite the definition of critical habitat for A. l. hummocks. The habitat types used to var. coachellae. Therefore, in areas (1) We used aerial imagery to create the model represented conditions covered by the Coachella Valley determine where the main stream that result from the dynamic process of MSHCP/NCCP, we confined the critical channels conveying sand to the fluvial sand movement in the Coachella Valley habitat designation to lands within the sand depositional areas in Units 1, 2, floor; these habitat types are found in Conservation Areas. and 3 (San Gorgonio River, Whitewater fluvial sand depositional areas and (3) We added areas not covered under River, Snow Creek, Mission Creek, and aeolian sand source, transport, and the Coachella Valley MSHCP/NCCP, but Morongo Wash) are located, and used depositional areas (see Habitat section that have been determined by biologists GIS software to draw polygons that above for a detailed discussion of these familiar with the taxon, its habitat, and define the extent of these streams. habitat types). During our analysis for its distribution, to contain the physical We considered only the lower reaches the 2005 critical habitat designation for or biological features essential to the of main stream channels (fluvial sand A. l. var. coachellae, we reviewed the conservation of the taxon (see the 2011 transport areas) that move sediment validity of the environmental variables proposed critical habitat rule (76 FR from the base of the surrounding used to create the model with 53224 (August 25, 2011)) for further mountains and hills into the fluvial occurrence data and information about discussion regarding these areas). The depositional areas on the valley floor to the plant’s ecology. We found biologists used aerial map coverages, be essential for the conservation of the documentation of A. l. var. coachellae Service GIS data, and personal taxon. If the lower reaches of any of occurrences in all of the natural knowledge to determine these areas. these main stream channels are lost, communities used to create the model, sand transport to portions of the Areas Outside the Geographical Area occupied Astragalus lentiginosus var. and concluded that the model was Occupied at the Time of Listing reasonably capable of identifying coachellae habitat downstream and suitable habitat for A. l. var. coachellae. We determined that designating only downwind will be lost as well. This has We mapped the modeled habitat using those areas within the geographical area occurred where a sand mining operation GIS software, and refined the map to occupied at the time of listing (also located in the San Gorgonio River include only areas that we estimate identified as the occupied fluvial and channel cut off delivery of sand from contain the physical or biological aeolian depositional areas and upstream areas, and reduced delivery of features essential to the conservation of intervening areas needed for aeolian sand to the San Gorgonio River fluvial the taxon. sand transport, pollen and seed depositional areas by an estimated 14 (2) We analyzed lands covered by the dispersal, and pollinator movement) percent (Griffiths et al. 2002, p. 21). Coachella Valley MSHCP/NCCP, and would not sufficiently provide for the Hence, a single project in a fluvial sand determined that Astragalus lentiginosus conservation of Astragalus lentiginosus transport area could potentially hinder var. coachellae habitat within the plan’s var. coachellae because movement of the movement of sand needed to Conservation Areas sufficiently sand from areas where sediment is maintain A. l. var. coachellae habitat. provides for the conservation of the generated into areas where the taxon To determine the upstream extent of taxon within areas covered by the grows is vital to the maintenance of the fluvial sand transport areas, we used Coachella Valley MSHCP/NCCP habitat for the taxon. For sufficient fine- GIS data to determine where the ground (Conservation Areas are a group of grained sands to reach the aeolian slope of the main stream channels specific areas in which the bulk of the system on the valley floor and support becomes greater than 10 percent. habitat conservation mandated by the Astragalus lentiginosus var. coachellae, Griffiths et al. (2002) found that the HCP is to take place). We have it is necessary to protect major fluvial majority of the sand reaching the valley determined that the modeled A. l. var. channels that transport sand from the floor areas in Units 1, 2, and 3 is coachellae habitat outside of the surrounding drainage basins as well as generated (eroded from parent rock) in Conservation Areas does not contain the bajadas and depositional areas. The portions of the mountain drainages physical or biological features essential Coachella Valley Multiple Species where the ground slope is greater than to the conservation of the taxon because Habitat Conservation Plan/Natural 10 percent. We have identified the these areas exist as small, disjunct Community Conservation Plan portions of main stream channels with patches, other larger areas where sand (Coachella Valley MSHCP/NCCP) a ground slope of less than 10 percent transport has been blocked, or they do identifies the protection of the above- as sand transport areas (areas where not contain documented occurrences of mentioned geomorphological processes, sand is transported from the base of the taxon. including sand transport, as a surrounding mountains and hills, but The modeled Astragalus lentiginosus conservation goal for several taxa, little sand is generated). var. coachellae habitat areas that are including A. l. var. coachellae. It will be covered by the Coachella Valley impossible to conserve or recover this Unit 4 MSHCP/NCCP and are within the taxon if fluvial sand transport sites and (2) The sand transport system moving Conservation Areas are connected to the processes are lost. Therefore, we sand into and through the Thousand fluvial portion of the sand transport determined that certain fluvial sand Palms area (which contains Unit 4) system. The PCE is found in these transport areas are essential for the differs from the system moving sand modeled habitat areas (fluvial sand conservation of A. l. var. coachellae and into and through Units 1, 2, and 3. In transport within Conservation Areas is should be designated as critical habitat Unit 4, water moving through unnamed

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washes erodes and moves sand from made every effort to avoid including the time of listing and contain sufficient alluvial deposits at the base of the Indio developed areas such as lands covered elements of the physical or biological Hills. Thus, both generation of sand and by buildings, pavement, and other features to support life-history processes fluvial transport of sand into fluvial structures because such lands lack essential to the conservation of the depositional areas occurs on these physical or biological features for taxon, and lands outside of the alluvial deposits. The occupied areas in Astragalus lentiginosus var. coachellae. geographical area occupied at the time Unit 4 depend on large flooding events The scale of the maps we prepared of listing that we have determined are to wash sands stored in channels on the under the parameters for publication essential for the conservation of alluvial valley floor deposits into fluvial within the Code of Federal Regulations Astragalus lentiginosus var. coachellae. sand depositional areas where the sand may not reflect the exclusion of such can be moved by aeolian processes. developed lands. Any such lands We are designating four units as Therefore, for Unit 4, rather than using inadvertently left inside critical habitat critical habitat for Astragalus the 10 percent slope line to delineate boundaries shown on the maps of this lentiginosus var. coachellae. The critical fluvial sand transport areas as we did final rule have been excluded by text in habitat areas described below constitute for Units 1, 2, and 3 (the areas the rule and are not designated as our best assessment at this time of areas supporting sand generation and fluvial critical habitat. Therefore, a Federal that meet the definition of critical sand transport in Unit 4 are less than 10 action involving these lands will not habitat. Those four units are: (1) San percent slope), we used aerial imagery trigger section 7 consultation with Gorgonio River/Snow Creek System, (2) to determine the extent of the alluvial respect to critical habitat and the Whitewater River System, (3) Mission deposits where the sand is stored, and requirement of no adverse modification Creek/Morongo Wash System, and (4) used our GIS software to create a GIS unless the specific action may affect Thousand Palms System. Table 1 shows polygon to encompass this area. We adjacent critical habitat. acres of land proposed as critical habitat proposed this area in Unit 4 as critical The critical habitat designation is in the 2011 proposed revised critical habitat for Astragalus lentiginosus var. defined by the map or maps, as habitat rule for A. l. var. coachellae (76 coachellae because the area and the modified by any accompanying FR 53224), acres of land excluded from fluvial sand transport processes it regulatory text, presented at the end of this critical habitat designation under supports are vital to maintaining sand this document in the rule portion. We section 4(b)(2) of the Act (see Exclusions formations in the occupied portions of include more detailed information on Based on Other Relevant Impacts Unit 4 that form the basis of A. l. var. the boundaries of the critical habitat section below for detailed discussion of designation in the preamble of this coachellae habitat in that unit. exclusions), and acres of land document. We will make the designated as critical habitat for A. l. Final Critical Habitat Designation coordinates or plot points or both on var. coachellae as a result of this revised In this revised critical habitat which each map is based available to designation for Astragalus lentiginosus the public on http:// critical habitat rule for all four units. We var. coachellae, we selected areas based www.regulations.gov at Docket No. are designating 7,550 ac (3,055 ha) in on the best scientific data available that FWS–R8–ES–2011–0064, on our accordance with section 3(5)(A)(i) of the possess those physical or biological Internet sites http://www.fws.gov/ Act (specific areas within the features essential to the conservation of carlsbad/GIS/CFWOGIS.html, and at the geographical area occupied by the taxon the taxon and that may require special Carlsbad Fish and Wildlife Office (see at the time of listing) and 2,053 ac (831 management considerations or FOR FURTHER INFORMATION CONTACT ha) in accordance with section protection and other areas essential for above). 3(5)(A)(ii) of the Act (specific areas the conservation of A. l. var. coachellae. We are designating as critical habitat outside the geographical area occupied When determining critical habitat lands that we have determined are by the taxon at the time of listing). boundaries within this final rule, we within the geographical area occupied at BILLING CODE 4310–55–P

VerDate Mar<15>2010 18:36 Feb 12, 2013 Jkt 229001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER4.SGM 13FER4 srobinson on DSK4SPTVN1PROD with RULES4 10460 Federal Register / Vol. 78, No. 30 / Wednesday, February 13, 2013 / Rules and Regulations 96 891 323 568 540 444 420 ha 1,018 1,438 Area** 798 238 ac 1,405 1,097 1,039 1,335 3,553 2,515 2,203 Total 4 123 128 127 124 ha 9 4 9 o o o o o o coachellae. Tribal* 313 307 304 316 ac var. 9 16 25 198 190 526 725 659 469 ha * j j 61 40 21 Private lentiginosus 490 469 ac 1,791 1,301 1,160 1,629 I I I I 10 15 38 54 41 28 28 26 25 ha Astragalus Local for 70 38 64 25 63 94 69 134 102 Ownership ac Govemment* o o o o o 67 67 66 66 ha ownership ~ i i I State o o o o o their 164 166 166 164 ac Govemment* and 72 72 393 402 465 474 ha * units o o o o o o Federal 179 179 993 970 habitat ac 1,172 1,149 Critical 1. Proposed Designated Proposed Designated Proposed Designated Excluded Excluded Excluded I I Table U U U Q) 0 0 §' §' § E-< ~ ...... AU t

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BILLING CODE 4310–55–C essential for the conservation of seed, all of which promote the stability We present brief descriptions of all Astragalus lentiginosus var. coachellae and reduce the chance of extirpation of units, and reasons why they meet the because they support the fluvial sand the occurrences in this unit (Meinke et definition of critical habitat, for transport process crucial to the al. 2007, p. 33). Also, due to strong Astragalus lentiginosus var. coachellae maintenance of the sand formations that winds moving through this area from below. form the foundation of A. l. var. the west to east, the occupied habitat in Unit 1: San Gorgonio River/Snow Creek coachellae habitat in the occupied areas Unit 1 likely acts as a source of seed System of Unit 1. (and hence, a source of genetic Unit 1 consists of 1,172 ac (474 ha) of Occupied habitat areas of Unit 1 diversity) for areas of suitable habitat to Federal land, 61 ac (25 ha) of private constitute one of the four main habitat the southeast (Meinke et al. 2007, p. 40). land, and 102 ac (41 ha) of local areas supporting Astragalus lentiginosus Unit 1 likely also contributes to the government-owned land in the var. coachellae (Coachella Valley maintenance of genetic diversity in Coachella Valley, Riverside County. MSHCP/NCCP, p. 9–21) and contain the other occupied areas through the Unit 1 contains approximately 238 ac physical or biological features essential movement of pollinators (Meinke et al. (96 ha) of unoccupied fluvial sand to the conservation of A. l. var. 2007, p. 37). transport area associated with the San coachellae, including active sand dunes, Gorgonio River and Snow Creek sand fields, and stabilized and partially Unit 2: Whitewater River System drainages. These areas are being stabilized sand fields that provide substrate components and conditions Unit 2 consists of 1,955 ac (791 ha) of designated under section 3(5)(A)(ii) of Federal land; 19 ac (8 ha) of private the Act, because they are specific areas suitable for the growth of A. l. var. coachellae (Coachella Valley MSHCP/ land; and 176 ac (71 ha) of local outside the geographical area occupied government-owned land in the by the species at the time of listing and NCCP 2008, Table 10–1a) and areas over which unobstructed aeolian sand Coachella Valley, Riverside County. are essential for the conservation of the Unit 2 contains approximately 554 ac species. The remainder of Unit 1 transport can occur. The essential (224 ha) of unoccupied fluvial sand consists of approximately 1,097 ac (444 features in Unit 1 may require special transport areas associated with the ha) of occupied suitable habitat management considerations or Whitewater River watershed. These extending approximately from the protection to address threats from eastern edge of the community of nonnative invasive plants and areas are being designated under section Cabazon to just west of Whitewater unauthorized OHV activity in the 3(5)(A)(ii) of the Act because they are River, and is approximately bound by occupied areas and threats from specific areas outside the geographical State Route 111 to the north and the foot alteration of stream flow in the area occupied by the species at the time of the San Jacinto Mountains to the unoccupied areas that impact habitat in of listing and are essential for the south. These areas are being designated the occupied areas. Please see the conservation of the taxon. The under section 3(5)(A)(i) of the Act, Special Management Considerations or remainder of Unit 2 consists of because they are within the Protection section of this rule for a approximately 1,596 ac (646 ha) of geographical area occupied by the discussion of the threats to A. l. var. occupied suitable habitat and is species at the time of listing and contain coachellae habitat and potential approximately bound by State Route those physical or biological features management considerations. 111 to the west, the Southern Pacific essential to the conservation of the The physical or biological features in Railroad to the north and east, and species. In total, Unit 1 consists of 1,335 the occupied areas in Unit 1 are also dense urban development in the cities ac (540 ha) of land. essential to the conservation of of Palm Springs and Cathedral City to Unoccupied fluvial sand transport Astragalus lentiginosus var. coachellae the south. These areas are being areas in this unit contain active washes because they support the westernmost designated under section 3(5)(A)(i) of associated with San Gorgonio River and occurrences of the taxon. Because of the Act because they are within the Snow Creek, which carry substrates their geographic location, these plants geographical area occupied by the created by fluvial erosion of the and their habitat receive more rainfall species at the time of listing and contain surrounding hills to occupied fluvial than occurrences and suitable habitat those physical or biological features deposition areas in Unit 1 on the valley farther east, which allows many essential to the conservation of the floor (Griffiths et al. 2002, pp. 10–11). individuals to survive more than one species. In total, Unit 2 consists of 2,150 The unoccupied areas in Unit 1 are year, grow larger, and produce more ac (870 ha) of land.

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Unoccupied fluvial sand transport Unit 3: Mission Creek/Morongo Wash fields, fluvial sand deposits on areas in this unit contain active washes System floodplain terraces of active washes associated with Whitewater River, Unit 3 consists of 502 ac (203 ha) of (certain areas of Morongo Wash), and which carry substrates created by fluvial Federal land, 1,497 ac (606 ha) of mesquite hummocks that provide erosion of the surrounding hills to private land, and 268 ac (108 ha) of substrate components and conditions occupied fluvial deposition areas in local government-owned land in the suitable for the growth of A. l. var. Unit 2 on the valley floor (Griffiths et al. Coachella Valley, Riverside County. coachellae (Coachella Valley MSHCP/ 2002, pp. 10–11). The unoccupied areas Unit 3 contains approximately 1,055 ac NCCP 2008, Table 10–1a). Unit 3 also in Unit 2 are essential for the (427 ha) of unoccupied fluvial sand contains areas over which unobstructed conservation of Astragalus lentiginosus transport area associated with the aeolian sand transport can occur. The var. coachellae because they contain Mission Creek watershed and a portion essential features in Unit 3 may require portions of the Whitewater River that of the Morongo Wash watershed (north special management considerations or protection to address threats from support the fluvial sand transport of Pierson Boulevard). These areas are nonnative plants, urban development, process crucial to the maintenance of being designated under section OHV use in the occupied floodplain the sand formations that form the 3(5)(A)(ii) of the Act because they are terrace areas, and threats from alteration foundation of A. l. var. coachellae specific areas outside the geographical of stream flow that impact habitat in habitat in the occupied areas of Unit 2. area occupied by the species at the time occupied areas. Please see the Special of listing and are essential for the Occupied habitat areas of Unit 2 Management Considerations or conservation of the taxon. The constitute one of the four main habitat Protection section of this rule for a remainder of Unit 3 consists of areas supporting Astragalus lentiginosus discussion of the threats to A. l. var. approximately 1,211 ac (490 ha) of var. coachellae (Coachella Valley coachellae habitat and potential MSHCP/NCCP, p. 9–21) and contain the occupied habitat and includes sand management considerations. physical or biological features essential deposits on the floodplain terraces of The physical or biological features in to the conservation of A. l. var. Morongo Wash south of Pierson occupied areas in Unit 3 are also coachellae, including active and Boulevard, and fluvial depositional essential to the conservation of ephemeral sand fields and stabilized areas and aeolian transport and Astragalus lentiginosus var. coachellae and partially stabilized sand fields that depositional areas approximately bound because they support the northernmost provide substrate components and (clockwise from the western boundary) extent of the taxon’s range and large conditions suitable for the growth of A. by Little Morongo Road, 18th Avenue, occurrences containing high densities of l. var. coachellae (Coachella Valley Palm Drive, 20th Avenue, Artesia Road, the taxon. Each of these factors MSHCP/NCCP 2008, Table 10–1a) and and Mihalyo Road, in or near the City contributes to the overall genetic areas over which unobstructed aeolian of Desert Hot Springs. These areas are diversity of A. l. var. coachellae (Meinke sand transport can occur. The essential being designated under section et al. 2007, p. 35) and the maintenance features in Unit 2 may require special 3(5)(A)(i) of the Act, because they are of genetic diversity via the movement of management considerations or within the geographical area occupied seeds and pollinators (Meinke et al. protection to address threats from by the species at the time of listing. In 2007, p. 37). The large numbers of nonnative plants, urban development, total, Unit 3 consists of 2,313 ac (936 ha) individuals also likely contribute alteration of stream flow, unauthorized of land. numerous seeds to the soil seed bank. OHV activity in the occupied Unoccupied fluvial sand transport Unit 3 also contains the only area where depositional areas, and threats from areas in this unit contain active washes A. l. var. coachellae is known to occur associated with Mission Creek and alteration of stream flow that impact in large numbers on floodplain terraces Morongo Wash (north of Pierson habitat in occupied areas. Please see the of an active wash (Morongo Wash). Boulevard), which carry substrates Special Management Considerations or created by fluvial erosion of the Unit 4: Thousand Palms System Protection section of this rule for a surrounding hills to occupied fluvial discussion of the threats to A. l. var. Unit 4 consists of 3,670 ac (1,485 ha) deposition areas in Unit 3 on the valley of Federal land, and 182 ac (74 ha) of coachellae habitat and potential floor (Griffiths et al. 2002, pp. 10–11). private land in the Coachella Valley, management considerations. The unoccupied areas in Unit 3 are Riverside County. Unit 4 contains The physical or biological features in essential for the conservation of approximately 206 ac (83 ha) of the occupied areas in Unit 2 are also Astragalus lentiginosus var. coachellae unoccupied lands supporting fluvial essential to the conservation of because they contain portions of sand transport and fluvial deposition Astragalus lentiginosus var. coachellae Mission Creek and Morongo Wash that (this unit contains alluvial sand because they serve as a corridor between support the fluvial sand transport deposition areas that are not occupied) the habitat and occurrences to the west process crucial to the maintenance of associated with drainages originating in in Unit 1 and the habitat and the sand formations that form the the Indio Hills. These areas are being occurrences to the east in Unit 3. foundation of A. l. var. coachellae designated under section 3(5)(A)(ii) of Although Unit 2 does not serve as a habitat in the occupied areas of Unit 3. the Act because they are specific areas substantial source of aeolian sand to Occupied habitat areas of Unit 3 outside the geographical area occupied Unit 3 relative to the onsite fluvial sand constitute one of the four main habitat by the species at the time of listing and transport areas in Unit 3 (Mission Creek areas supporting Astragalus lentiginosus are essential for the conservation of the and Morongo Wash), it may serve as a var. coachellae (Coachella Valley species. The remainder of Unit 4 corridor for gene flow by means of MSHCP/NCCP, pp. 9–21–9–22) and consists of approximately 3,646 ac pollen and seed dispersal between Units contain the physical or biological (1,475 ha) of occupied habitat area in 1, 2, and 3 due to dispersal of seeds features essential to the conservation of the Thousand Palms Preserve along from Unit 1 into Unit 2 and from Unit A. l. var. coachellae including stabilized Ramon Road. These areas are being 2 into Unit 3, combined with movement and partially stabilized sand dunes, designated under section 3(5)(A)(i) of of pollinators among the three units active and ephemeral sand fields, the Act because they are within the (Meinke et al. 2007, p. 37). stabilized and partially stabilized sand geographical area occupied by the

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species at the time of listing and contain to A. l. var. coachellae habitat and section 404 of the Clean Water Act (33 those physical or biological features potential management considerations. U.S.C. 1251 et seq.) or a permit from the essential to the conservation of the The physical or biological features in Service under section 10 of the Act) or species. In total, Unit 4 consists of 3,851 the occupied areas of Unit 4 are also that involve some other Federal action ac (1,559 ha) of land. essential to the conservation of the (such as funding from the Federal Unoccupied areas in this unit contain species because they support Highway Administration, Federal active ephemeral washes that carry occurrences containing large numbers of Aviation Administration, or the Federal substrates from alluvial deposits to the taxon that contribute to the overall Emergency Management Agency). alluvial fan areas where they can be genetic diversity of Astragalus Federal actions not affecting listed transported to occupied habitat areas via lentiginosus var. coachellae (Meinke et species or critical habitat, and actions wind (Lancaster et al. 1993, p. 28). The al. 2007, p. 35) and because they are on State, tribal, local, or private lands unoccupied areas in Unit 4 are essential located in the southeasternmost portion that are not federally funded or for the conservation of Astragalus of the taxon’s range that is authorized, do not require section 7 lentiginosus var. coachellae because hydrologically independent and consultation. they contain alluvial sand deposits that physically isolated from the other units. As a result of section 7 consultation, support the fluvial and aeolian sand As such, this unit is important to help we document compliance with the transport processes crucial to the buffer excessive losses in other parts of requirements of section 7(a)(2) through maintenance of the sand formations that the range. our issuance of: form the foundation of A. l. var. (1) A concurrence letter for Federal coachellae habitat in the occupied areas Effects of Critical Habitat Designation actions that may affect, but are not of Unit 4. Section 7 Consultation likely to adversely affect, listed species Occupied habitat areas of Unit 4 or critical habitat; or Section 7(a)(2) of the Act requires constitute one of the four main habitat (2) A biological opinion for Federal Federal agencies, including the Service, areas supporting Astragalus lentiginosus actions that may affect, or are likely to to ensure that any action they fund, var. coachellae (Coachella Valley adversely affect, listed species or critical authorize, or carry out is not likely to MSHCP/NCCP, p. 9–22) and contain the habitat. physical or biological features essential jeopardize the continued existence of When we issue a biological opinion to the conservation of A. l. var. any endangered species or threatened concluding that a project is likely to coachellae, including active dunes, species or result in the destruction or jeopardize the continued existence of a active sand fields, and mesquite adverse modification of designated listed species and/or destroy or hummocks that provide substrate critical habitat of such species. In adversely modify critical habitat, we components and conditions suitable for addition, section 7(a)(4) of the Act provide reasonable and prudent the growth of A. l. var. coachellae requires Federal agencies to confer with alternatives to the project, if any are (Coachella Valley MSHCP/NCCP 2008, the Service on any agency action which identifiable, that would avoid the Table 10–1a), and areas over which is likely to jeopardize the continued likelihood of jeopardy and/or unobstructed aeolian sand transport can existence of any species proposed to be destruction or adverse modification of occur. The essential features in the listed under the Act or result in the critical habitat. We define ‘‘reasonable occupied portion of Unit 4 may require destruction or adverse modification of and prudent alternatives’’ (at 50 CFR special management considerations or proposed critical habitat. 402.02) as alternative actions identified protection to address threats from Decisions by the 5th and 9th Circuit during consultation that: nonnative plants. According to Meinke Courts of Appeals have invalidated our (1) Can be implemented in a manner et al. (2007, p. 18), this area supports regulatory definition of ‘‘destruction or consistent with the intended purpose of infestations of Brassica tournefortii adverse modification’’ (50 CFR 402.02) the action, (Saharan mustard); researchers observed (see Gifford Pinchot Task Force v. U.S. (2) Can be implemented consistent thousands of acres of A. l. var. Fish and Wildlife Service, 378 F.3d 1059 with the scope of the Federal agency’s coachellae habitat inundated with dense (9th Cir. 2004) and Sierra Club v. U.S. legal authority and jurisdiction, populations of this nonnative plant Fish and Wildlife Service et al., 245 F.3d (3) Are economically and species. Existing suburban development 434, 442 (5th Cir. 2001)), and we do not technologically feasible, and may require active management rely on this regulatory definition when (4) Would, in the Director’s opinion, measures (for example, collection of analyzing whether an action is likely to avoid the likelihood of jeopardizing the sand from developed areas for destroy or adversely modify critical continued existence of the listed species redistribution within the wind habitat. Under the statutory provisions and/or avoid the likelihood of movement corridor). The expansion of of the Act, we determine destruction or destroying or adversely modifying new urban development in areas adverse modification on the basis of critical habitat. supporting fluvial sand transport and whether, with implementation of the Reasonable and prudent alternatives deposition is also a threat to the proposed Federal action, the affected can vary from slight project essential features in this unit that may critical habitat would continue to serve modifications to extensive redesign or require special management its intended conservation role for the relocation of the project. Costs considerations or protection, as are species. associated with implementing a unauthorized OHV activity and a If a Federal action may affect a listed reasonable and prudent alternative are proposed flood control project that species or its critical habitat, the similarly variable. could disrupt or permanently destroy responsible Federal agency (action Regulations at 50 CFR 402.16 require the sand transport system in the agency) must enter into consultation Federal agencies to reinitiate Thousand Palms area by diverting with us. Examples of actions that are consultation on previously reviewed drainages that provide sand to occupied subject to the section 7 consultation actions in instances where we have areas during large flooding events. process are actions on State, tribal, listed a new species or subsequently Please see the Special Management local, or private lands that require a designated critical habitat that may be Considerations or Protection section of Federal permit (such as a permit from affected and the Federal agency has this rule for a discussion of the threats the U.S. Army Corps of Engineers under retained discretionary involvement or

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control over the action (or the agency’s root systems of plants such as P. g. var. fish and wildlife; and enforcement of discretionary involvement or control is torreyana, which results in the death of applicable natural resource laws. authorized by law). Consequently, the plants, and the loss of the sand The National Defense Authorization Federal agencies sometimes may need to formations to wind erosion. Act for Fiscal Year 2004 (Pub. L. 108– request reinitiation of consultation with (3) Actions that alter waterways. Such 136) amended the Act to limit areas us on actions for which formal actions could decrease the amount or eligible for designation as critical consultation has been completed, if alter the deposition location of sand habitat. Specifically, section 4(a)(3)(B)(i) those actions with discretionary entering the sand transport system, and of the Act (16 U.S.C. 1533(a)(3)(B)(i)) involvement or control may affect thus reduce the amount of sand now provides: ‘‘The Secretary shall not subsequently listed species or available for A. l. var. coachellae designate as critical habitat any lands or designated critical habitat. habitat. other geographical areas owned or Application of the ‘‘Adverse (4) Actions that contribute to the controlled by the Department of Modification’’ Standard introduction or proliferation of Defense, or designated for its use, that nonnative plants, such as Brassica are subject to an integrated natural The key factor related to the adverse tournefortii (Saharan mustard) and trees resources management plan prepared modification determination is whether, planted as windbreaks. Such actions under section 101 of the Sikes Act (16 with implementation of the proposed may interfere with the movement of U.S.C. 670a), if the Secretary determines Federal action, the affected critical sand, which would prevent sand from in writing that such plan provides a habitat would continue to serve its moving downwind and contributing to benefit to the species for which critical intended conservation role for the the sand formations that form the basis habitat is proposed for designation.’’ species. Activities that may destroy or of A. l. var. coachellae habitat. There are no Department of Defense adversely modify critical habitat are (5) Actions such as development and lands that meet the definition of critical those that alter the physical or landscaping that cover or remove habitat and, as a result, no lands have biological features to an extent that substrate. Such actions convert suitable been exempted under section appreciably reduces the conservation A. l. var. coachellae habitat to 4(a)(3)(B)(i) of the Act. value of critical habitat for Astragalus groundcover that does not support the Exclusions lentiginosus var. coachellae. As taxon. discussed above, the role of critical (6) Actions such as OHV use that Application of Section 4(b)(2) of the Act habitat is to support life-history needs of disrupt substrates. Such actions can the species and provide for the Section 4(b)(2) of the Act states that cause sufficient alteration of sand the Secretary shall designate and make conservation of the species. For A. l. var. formations supporting A. l. var. coachellae, this includes supporting the revisions to critical habitat on the basis coachellae occurrences to make the of the best available scientific data after sand formations that form the basis of habitat unsuitable to support the taxon. the taxon’s habitat and the areas over taking into consideration the economic which the associated sand transport Exemptions impact, national security impact, and any other relevant impact of specifying processes that sustain these sand Application of Section 4(a)(3) of the Act formations occur. any particular area as critical habitat. Section 4(b)(8) of the Act requires us The Sikes Act Improvement Act of The Secretary may exclude an area from to briefly evaluate and describe, in any 1997 (Sikes Act) (16 U.S.C. 670a) critical habitat if he determines that the proposed or final regulation that required each military installation that benefits of such exclusion outweigh the designates critical habitat, activities includes land and water suitable for the benefits of specifying such area as part involving a Federal action that may conservation and management of of the critical habitat, unless he destroy or adversely modify such natural resources to complete an determines, based on the best scientific habitat, or that may be affected by such integrated natural resources data available, that the failure to designation. management plan (INRMP) by designate such area as critical habitat Activities that may affect critical November 17, 2001. An INRMP will result in the extinction of the habitat, when carried out, funded, or integrates implementation of the species. In making that determination, authorized by a Federal agency, should military mission of the installation with the statute on its face, as well as the result in consultation for Astragalus stewardship of the natural resources legislative history, are clear that the lentiginosus var. coachellae. These found on the base. Each INRMP Secretary has broad discretion regarding activities include, but are not limited to: includes: which factor(s) to use and how much (1) Actions that would interrupt the (1) An assessment of the ecological weight to give to any factor. fluvial or aeolian transport of sand to needs on the installation, including the In considering whether to exclude a areas occupied by A. l. var. coachellae. need to provide for the conservation of particular area from the designation, we Such actions would lead to the listed species; identify the benefits of including the degradation of the sand formations that (2) A statement of goals and priorities; area in the designation, identify the form the basis of A. l. var. coachellae (3) A detailed description of benefits of excluding the area from the habitat by blocking sand from management actions to be implemented designation, and evaluate whether the replenishing occupied areas where the to provide for these ecological needs; benefits of exclusion outweigh the sand is being removed by aeolian and benefits of inclusion. If the analysis processes. (4) A monitoring and adaptive indicates that the benefits of exclusion (2) Actions that would damage or kill management plan. outweigh the benefits of inclusion, the plants that trap sand and create sand Among other things, each INRMP Secretary may exercise his discretion to formations that support A. l. var. must, to the extent appropriate and exclude the area only if such exclusion coachellae (such as hummocks that applicable, provide for fish and wildlife would not result in the extinction of the contain Prosopis glandulosa var. management; fish and wildlife habitat species. torreyana (honey mesquite)). These enhancement or modification; wetland When identifying the benefits of include actions that lower the protection, enhancement, and inclusion for an area, we consider the groundwater table below the reach of restoration where necessary to support additional regulatory benefits that area

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would receive from the protection from destruction or adverse modification of evaluate whether the benefits of destruction or adverse modification as a critical habitat. In practice, a Federal exclusion outweigh those of inclusion. result of actions with a Federal nexus; nexus exists only on Federal land or for If our analysis indicates that the benefits the educational benefits of mapping projects undertaken, funded, or of exclusion outweigh the benefits of essential habitat for recovery of the requiring authorization by a Federal inclusion, we then determine whether listed species; and any benefits that may agency. exclusion would result in extinction. If result from a designation due to State or When we evaluate the existence of a exclusion of an area from critical habitat Federal laws that may apply to critical conservation plan, we consider a variety will result in extinction, we will not of factors, including but not limited to, habitat. exclude it from the designation. When identifying the benefits of whether the plan is finalized; how it exclusion, we consider, among other provides for the conservation of the Based on the information provided by things, whether exclusion of a specific essential physical or biological features; entities seeking exclusion, as well as area is likely to result in conservation; whether there is a reasonable any additional public comments the continuation, strengthening, or expectation that the conservation received, we evaluated whether certain encouragement of partnerships; or management strategies and actions lands in critical habitat Units 1 through implementation of a management plan contained in a management plan will be 4 were appropriate for exclusion from that provides equal to or more implemented into the future; whether this final designation pursuant to conservation than a critical habitat the conservation strategies in the plan section 4(b)(2) of the Act. The Secretary designation would provide. are likely to be effective; and whether is exercising his discretion to exclude In the case of Astragalus lentiginosus the plan contains a monitoring program several areas from critical habitat var. coachellae, the benefits of critical or adaptive management to ensure that designation for Astragalus lentiginosus habitat include public awareness of A. the conservation measures are effective var. coachellae. Table 2 below provides l. var. coachellae presence and the and can be adapted in the future in approximate areas (ac, ha) of lands that importance of habitat protection, and in response to new information. meet the definition of critical habitat but cases where a Federal nexus exists, After identifying the benefits of are excluded under section 4(b)(2) of the increased habitat protection for A. l. var. inclusion and the benefits of exclusion, coachellae due to the protection from we carefully weigh the two sides to Act in this final critical habitat rule.

TABLE 2—AREA EXCLUDED FROM CRITICAL HABITAT DESIGNATION BY CRITICAL HABITAT UNIT

Area meeting the definition of Area excluded from critical Unit Specific area critical habitat habitat acres hectares acres hectares

1 ...... Coachella Valley MSHCP/NCCP ...... 1,898 768 1,898 768 Morongo Band of Mission Indians Lands ...... 313 127 313 127 Unit 1 total ...... 2,212 895 2,212 895 2 ...... Coachella Valley MSHCP/NCCP ...... 4,558 1,844 4,558 1,844 Agua Caliente Band of Cahuilla Indians Lands ...... 579 234 579 234 Unit 2 total ...... 5,137 2,078 5,137 2,078 3 ...... Coachella Valley MSHCP/NCCP ...... 5,491 2,222 5,491 2,222 4 ...... Coachella Valley MSHCP/NCCP ...... 3,193 1,292 3,193 1,292 Subtotal Coachella Valley MSHCP/NCCP ...... 15,140 6,127 15,140 6,127 Subtotal Tribal lands ...... 893 361 893 361 Total ...... 15,874 6,413 15,874 6,413

We believe these areas are appropriate Exclusions Based on Economic Impacts lentiginosus var. coachellae; some of for exclusion under the ‘‘other relevant Under section 4(b)(2) of the Act, we these costs will likely be incurred factor’’ provisions of section 4(b)(2) of consider the economic impacts of regardless of whether we designate the Act because: specifying any particular area as critical critical habitat (baseline). The economic (1) Their value for conservation will habitat. In order to consider economic impact of the critical habitat designation be preserved into the future by existing impacts, we prepared a draft economic is analyzed by comparing scenarios both protective actions. analysis of the proposed critical habitat ‘‘with critical habitat’’ and ‘‘without critical habitat.’’ The ‘‘without critical (2) Exclusion of these areas could designation (Industrial Economics, Inc. (IEc) 2012). The draft analysis, dated habitat’’ scenario represents the baseline help preserve the partnerships we May 11, 2012, was made available for for the analysis, considering protections developed with local stakeholders and public review and comment from May already in place for the species (for encourage the establishment of future 16 through June 15, 2012 (77 FR 28846; example, under the Federal listing and conservation and management of habitat May 16, 2011). Following the close of other Federal, State, and local for Astragalus lentiginosus var. the comment period, a final economic regulations). The baseline, therefore, coachellae and other sensitive taxa. analysis (FEA) (dated January 29, 2013) represents the costs incurred regardless (3) Exclusion of these areas could of the potential economic effects of the of whether critical habitat is designated. help preserve our partnerships with designation was developed taking into The ‘‘with critical habitat’’ scenario tribes and foster future dialog and consideration the public comments and describes the incremental impacts cooperative actions as well as any new information (IEc 2013). associated specifically with the development of habitat management The intent of the FEA is to quantify designation of critical habitat for the plans on tribal lands. the economic impacts of all potential species. The incremental conservation conservation efforts for Astragalus efforts and associated impacts are those

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not expected to occur absent the These costs are only included in the revised critical habitat on Morongo designation of critical habitat for the high estimate because of uncertainty Band of Mission Indians lands, because species. In other words, the incremental over whether Desert Hot Springs will these areas are located entirely within costs are those attributable solely to the develop within the 100-year floodplain the floodplain; therefore, the FEA does designation of critical habitat above and and whether railroad upgrades are not estimate any incremental project beyond the baseline costs; these are the likely, and because a public comment modification costs for Tribal activities. costs we consider in the final submitted by the Agua Caliente Band of The total incremental impacts are designation of critical habitat. The Cahuilla Indians suggests that estimated to be $270,000 to $880,000 analysis looks retrospectively at development may not occur within ($24,000 to $77,000 annualized) in baseline impacts incurred since the proposed revised critical habitat. As a present-value terms using a 7 percent species was listed, and forecasts both result, the low-end impacts consist discount rate over the next 20 years baseline and incremental impacts likely solely of administrative costs, except (2012 to 2032) in areas proposed as to occur with the designation of critical those that may be incurred by the Agua revised critical habitat (IEc 2012, pp. habitat. Caliente Band of Cahuilla Indians (IEc ES–2–ES–3, ES–7–ES–9). The FEA also addresses how potential 2013, p. 4–2). Our economic analysis did not economic impacts are likely to be Implementation of conservation identify any disproportionate costs that distributed, including an assessment of activities for residential, commercial, are likely to result from the designation. any local or regional impacts of habitat and industrial development is the Consequently, the Secretary has conservation and the potential effects of largest cost category in the high-end determined not to exercise his conservation activities on government estimate of incremental impacts. All of discretion to exclude any areas from this agencies, private businesses, and these costs are projected to occur in the designation of critical habitat for individuals. The FEA measures lost unoccupied portion of Unit 3, within Astragalus lentiginosus var. coachellae economic efficiency associated with the City of Desert Hot Springs. based on economic impacts. residential and commercial Proponents of transportation activities, A copy of the FEA with supporting development and public projects and such as road and bridge construction documents is available at http:// activities, such as economic impacts on and maintenance, are likely to www.fws.gov/carlsbad/GIS/ water management and transportation experience the next largest impacts after CFWOGIS.html, http:// projects, Federal lands, small entities, residential, commercial, and industrial www.regulations.gov at Docket No. and the energy industry. development. No incremental project Decisionmakers can use this modification costs are estimated for FWS–R8–ES–2011–0064, and at the information to assess whether the effects water management activities. Although Carlsbad Fish and Wildlife Office (see of the designation might unduly burden two water districts, Metropolitan Water FOR FURTHER INFORMATION CONTACT). a particular group or economic sector. District of Southern California and the Exclusions Based on National Security Finally, the FEA looks retrospectively at Desert Water Agency, may experience Impacts costs that have been incurred since 1998 incremental impacts for projects (63 FR 53596, October 6, 1998), and occurring in unoccupied, fluvial habitat, Under section 4(b)(2) of the Act, we considers those costs that may occur in characteristics of potential projects and consider whether there are lands owned the 20 years following the designation of specific project modifications that could or managed by the Department of critical habitat, which was determined be recommended for projects are Defense (DOD) where a national security to be the appropriate period for analysis uncertain. Project modification costs impact might exist. In preparing this because a 20-year analysis period therefore could not be estimated. The final rule, we have determined that the reflects the maximum amount of time FEA does not estimate any incremental lands meeting the definition of critical under which future activities and project modification costs for energy habitat for Astragalus lentiginosus var. economic impacts associated with the projects, because these projects are coachellae are not owned or managed designation can be reliably projected, located within occupied habitat, where by the Department of Defense, and, given available data and information. we cannot reasonably differentiate therefore, we anticipate no impact on The FEA quantifies economic impacts of between actions that avoid jeopardy to national security. Consequently, the Astragalus lentiginosus var. coachellae the species and actions needed solely to Secretary is not exercising his discretion conservation efforts associated with the avoid destruction or adverse to exclude any areas from this final following categories of activity: (1) modification of critical habitat, and designation based on impacts on Residential, commercial, and industrial because the construction and national security. development; (2) water management development of new wind energy Exclusions Based on Other Relevant and use; (3) transportation activities; (4) facilities is a covered activity under the Impacts energy development; (5) sand and gravel MSHCP/NCCP. No incremental project mining; and (6) Tribal activities. modification costs are anticipated for Under section 4(b)(2) of the Act, we The economic analysis includes high- mining activities. consider any other relevant impacts, in and low-end estimates of incremental The FEA also does not anticipate any addition to economic impacts and costs. Both estimates include the incremental project modification costs impacts on national security. We incremental impacts associated with on Agua Caliente Band of Cahuilla consider a number of factors, including addressing adverse modification in Indians lands because the proposed whether the landowners have developed section 7 consultation. The high-end revised critical habitat on those lands is any HCPs or other management plans estimate also includes project occupied habitat, where we cannot for the area, or whether there are modification costs associated with reasonably differentiate between actions conservation partnerships that would be development in the City of Desert Hot that avoid jeopardy to the species and encouraged by designation of, or Springs and railroad upgrades not actions needed solely to avoid exclusion from, critical habitat. In covered by the Coachella Valley destruction or adverse modification of addition, we look at any tribal issues, MSHCP/NCCP, as well as potential critical habitat. The Morongo Band of and consider the government-to- administrative costs incurred by the Mission Indians do not anticipate government relationship of the United Agua Caliente Band of Cahuilla Indians. economic activity within proposed States with tribal entities. We also

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consider any social impacts that might Valley MSHCP/NCCP include eight reserves in the Coachella Valley occur because of the designation. cities (Cathedral City, Coachella, Indian Preserve System). These lands and the Wells, Indio, La Quinta, Palm Desert, 11,650 ac (4,715 ha) of lands yet to be Land and Resource Management Plans, Palm Springs, and Rancho Mirage); the conserved under the Coachella Valley Conservation Plans, or Agreements County of Riverside, including the MSHCP/NCCP will total 19,357 ac Based on Conservation Partnerships Riverside County Flood Control and (7,833 ha) of A. l. var. coachellae When we evaluate whether a current Water Conservation District, Riverside modeled habitat within the Coachella land management or conservation plan County Parks and Open Space District, Valley MSHCP/NCCP Reserve System. (HCPs as well as other types) provides and Riverside County Waste As habitat areas are acquired under adequate management or protection, we Management District; the Coachella the Coachella Valley MSHCP/NCCP, consider a variety of factors, including Valley Association of Governments; they are legally protected within the but not limited to, whether the plan is Coachella Valley Water District; Reserve System and the direct impacts finalized; how it provides for the Imperial Irrigation District; California of development are precluded. All areas conservation of the essential physical or Department of Transportation; covered under the Coachella Valley biological features; whether there is a California State Parks; Coachella Valley MSHCP/NCCP that meet the definition reasonable expectation that the Mountains Conservancy; and the of critical habitat for A. l. var. conservation management strategies and Coachella Valley Conservation coachellae fall within the Conservation actions contained in a management plan Commission (the created joint powers Areas of the HCP. The Conservation will be implemented into the future; regional authority). The Coachella Areas of the Coachella Valley MSHCP/ whether the conservation strategies in Valley MSHCP/NCCP was designed to NCCP are predetermined areas that the plan are likely to be effective; and establish a multiple-species habitat provide habitat for species covered whether the plan contains a monitoring conservation program that minimizes under the plan; these areas are designed program or adaptive management to and mitigates the expected loss of to conserve natural communities, ensure that the conservation measures habitat and incidental take of covered ecological processes, and biological are effective and can be adapted in the species, including A. l. var. coachellae corridors and linkages between major future in response to new information. (USFWS 2008, pp. 1–207, and habitat areas. The Coachella Valley We believe that the Coachella Valley Appendix A, pp. 10–50). MSHCP/NCCP Reserve System will be Multiple Species Habitat Conservation The permit covers incidental take assembled from land conserved within Plan and Natural Community resulting from habitat loss and these Conservation Areas. This Conservation Plan (Coachella Valley disturbance associated with urban protection, as well as implementation of MSHCP/NCCP) provides adequate development and other proposed the avoidance, minimization, and management or protection for the taxon, covered activities. These activities mitigation measures and management and, to continue and strengthen our include public and private development and monitoring programs identified in conservation partnerships with the within the plan area that requires the Coachella Valley MSHCP/NCCP, plan’s participants and to foster discretionary and ministerial actions by will reduce impacts to this taxon additional partnerships, the Secretary is permittees subject to consistency with compared to what would have occurred exercising his discretion to exclude the Coachella Valley MSHCP/NCCP otherwise. lands covered by this plan that provide policies. An associated Management for the conservation of Astragalus and Monitoring Program is also Benefits of Inclusion—Coachella Valley lentiginosus var. coachellae. Details of included in the Coachella Valley MSHCP/NCCP our analysis for this plan are described MSHCP/NCCP and identifies specific Regulatory Benefits (Endangered below. management actions for the Species Act) conservation of Astragalus lentiginosus Exclusions Under Section 4(b)(2) of the The principal benefit of including an Act—Coachella Valley MSHCP/NCCP var. coachellae. Approximately 36,398 ac (14,730 ha) area in a critical habitat designation is The Coachella Valley MSHCP/NCCP of modeled habitat for Astragalus the requirement of Federal agencies to is a large-scale, multijurisdictional lentiginosus var. coachellae occurs in ensure actions they fund, authorize, or habitat conservation plan encompassing the Coachella Valley MSHCP/NCCP carry out are not likely to result in the about 1.1 million ac (445,156 ha) in the Plan Area (Coachella Valley MSHCP/ destruction or adverse modification of Coachella Valley of central Riverside NCCP 2008, p. 9–25). Under the any designated critical habitat, the County. The Coachella Valley MSHCP/ Coachella Valley MSHCP/NCCP, regulatory standard of section 7(a)(2) of NCCP is also a ‘‘Subregional Plan’’ approximately 15,706 ac (6,356 ha) of the Act under which consultation is under the State of California’s Natural modeled A. l. var. coachellae habitat completed. Federal agencies must Community Conservation Planning will be lost to development. To mitigate consult with the Service on actions that (NCCP) Act, as amended. An additional this loss, the Coachella Valley MSHCP/ may affect critical habitat and must 69,000 ac (27,923 ha) of tribal NCCP will preserve 7,176 ac (2,904 ha) avoid destroying or adversely modifying reservation lands distributed within the of modeled habitat for the taxon in critical habitat. Federal agencies must plan area boundary are not included in perpetuity. Another 4,497 ac (1,820 ha) also consult with us on actions that may the Coachella Valley MSHCP/NCCP. are anticipated to be conserved through affect a listed species and refrain from The Coachella Valley MSHCP/NCCP complementary and cooperative efforts undertaking actions that are likely to addresses 27 listed and unlisted by Federal and State agencies and jeopardize the continued existence of ‘‘covered species,’’ including Astragalus nongovernmental organizations. such species. The analysis of effects to lentiginosus var. coachellae. On October Additionally, 7,707 ac (3,118 ha) of A. critical habitat is a separate and 1, 2008, the Service issued a single l. var. coachellae modeled habitat different analysis from that of the effects incidental take permit (TE–104604–0) within the Plan Area were preserved to the species. Therefore, the difference under section 10(a)(1)(B) of the Act to prior to completion of the Coachella in outcomes of these two analyses 19 permittees under the Coachella Valley MSHCP/NCCP (acres which represents the regulatory benefit of Valley MSHCP/NCCP for a period of 75 coincidentally occur on three Coachella critical habitat. The regulatory standards years. Participants in the Coachella Valley fringe-toed lizard (Uma inornata) are different, as the jeopardy analysis

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investigates the action’s impact on the MSHCP/NCCP, a Federal nexus seems section 7(a)(2) of the Act for A. l. var. survival and recovery of the species, possible despite the areas in question coachellae critical habitat. Adding while the adverse modification analysis not being on Federal lands. The another layer of regulatory protections focuses on the action’s effects on the unoccupied fluvial sand transport areas by designating critical habitat on lands designated habitat’s contribution to of the essential habitat covered under in the Conservation Areas of the conservation. This will, in many the Coachella Valley MSHCP/NCCP may Coachella Valley MSHCP/NCCP, instances, lead to different results and fall within the jurisdiction of the U.S. therefore, will not likely add any different regulatory requirements. Thus, Army Corps of Engineers (Corps) protection for the taxon. In some rare critical habitat designations may pursuant to section 404 of the Clean cases, the amount or type of protection provide greater benefits to the recovery Water Act. Therefore, we expect there required by a consultation under section of a species than would listing alone. will be a Federal nexus for projects in 7(a)(2) of the Act to address impacts to For some species (including the fluvial sand transport areas, as critical habitat could differ from the Astragalus lentiginosus var. coachellae), projects that impact these areas may protective measures provided by the and in some locations (in particular, require Corps permits. Also, highway or Coachella Valley MSHCP/NCCP; those occupied by the taxon), the railroad improvement projects on lands however, we do not know under what outcome of these analyses will be adjacent to Interstate Highway 10 or the circumstances this would occur, if ever. similar, because effects to habitat will Southern Pacific railway line that are For these reasons, we believe the often also result in effects to the species covered by the Coachella Valley protections provided by the Coachella and it is often difficult or impossible to MSHCP/NCCP may have a Federal Valley MSHCP/NCCP in the differentiate between actions that avoid nexus via the U.S. Department of Conservation Areas substantially jeopardy to the species and actions Transportation. Thus, designation of diminish any regulatory benefits of needed solely to avoid destruction or these areas as critical habitat for A. l. designating critical habitat on these adverse modification of critical habitat. var. coachellae could provide a lands. However, much of the land considered regulatory benefit. However, where Educational Benefit for exclusion from this critical habitat there is no discernible Federal nexus on designation is not occupied by the taxon lands covered under the Coachella Designating critical habitat also can be (areas supporting fluvial sand transport Valley MSHCP/NCCP that we’ve beneficial because the process of processes). In these areas, impacts to identified as critical habitat for A. l. var. proposing critical habitat provides the critical habitat will not result in direct coachellae, we consider the regulatory opportunity for peer review and public impacts to A. l. var. coachellae plants. benefit of designation of those non- comment on lands we propose to Therefore, the outcome of an adverse Federal lands to be small. designate as critical habitat, our criteria modification analysis in these areas If protections provided by critical used to identify those lands, potential would differ from the outcome of a habitat designation are redundant with impacts from the proposal, and jeopardy analysis. protections already in place on lands information on the taxon itself. The Critical habitat may provide a identified as areas that meet the designation of critical habitat may regulatory benefit for Astragalus definition of critical habitat for generally provide previously lentiginosus var. coachellae when there Astragalus lentiginosus var. coachellae, unavailable information to the public. is a Federal nexus present for a project the benefits of inclusion in critical Public education regarding the potential that might adversely modify critical habitat are reduced. All areas that meet conservation value of an area may also habitat. A Federal nexus generally exists the definition of critical habitat covered help focus conservation and where land is federally owned, or where under the Coachella Valley MSHCP/ management efforts on areas of high actions proposed on non-Federal lands NCCP fall within the Conservation conservation value for certain species. require a Federal permit or Federal Areas of the HCP. Within the Information about Astragalus funding. In the absence of a Federal Conservation Areas, protections lentiginosus var. coachellae and its nexus, the regulatory benefit provided afforded Astragalus lentiginosus var. habitat that reaches a wide audience, through section 7 consultation under coachellae and its habitat by the including parties concerned about and the Act does not exist. Any activities Coachella Valley MSHCP/NCCP engaged in conservation activities, is over which a Federal agency has include, for example, requiring valuable because the public may not be discretionary involvement or control permittees to comply with applicable aware of documented (or affecting designated critical habitat on avoidance, minimization, and undocumented) A. l. var. coachellae Federal land would trigger a duty to mitigation measures and land-use occurrences and unoccupied areas consult under section 7. However, no adjacency guidelines (standards supporting sand transport processes that Federal lands are covered under the delineated for land uses adjacent to or have not been conserved or are not Coachella Valley MSHCP/NCCP. within Conservation Areas necessary to being managed. The potential for a Federal nexus for avoid or minimize edge effects), and However, the educational benefits of activities proposed on non-Federal conservation of suitable habitat and designating critical habitat for lands varies widely and depends on the those areas supporting the Astragalus lentiginosus var. coachellae particular circumstances of each case. geomorphologic processes sustaining are small and largely redundant to those Nevertheless, because the breadth of the sand formations in those areas (sand derived through conservation efforts potential Federal actions that may transport system) (Coachella Valley currently being implemented in the trigger a duty to consult under section MSHCP/NCCP 2008, Section 4 and private and permittee-owned or 7 is quite broad, we cannot say with Section 9.2.2). controlled lands covered under the certainty that future development of, or Protective measures required by the Coachella Valley MSHCP/NCCP. As activities on, non-Federal lands will Coachella Valley MSHCP/NCCP for the described above, the process of always lack a Federal nexus. In some conservation of Astragalus lentiginosus developing the Coachella Valley portions of the lands identified as var. coachellae habitat in the MSHCP/NCCP has involved several critical habitat for Astragalus Conservation Areas are similar to partners including (but not limited to) lentiginosus var. coachellae that are protections that we would require the eight participating local covered under the Coachella Valley through consultation provisions under jurisdictions, Riverside County,

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California Department of Fish and might be gained. The regulatory benefit lands) and management for Astragalus Game, and Federal agencies. The of designation is likely higher in lentiginosus var. coachellae, its habitat, educational benefits of critical habitat unoccupied fluvial sand transport areas, the fluvial sand transport areas, and the designation derived through informing due to the greater possibility for a physical or biological features essential Coachella Valley MSHCP/NCCP Federal nexus (via permits required for to the conservation of this taxon. partners and other members of the impacts to ‘‘Waters of the United States’’ Additionally, many landowners public of areas important for the long- by the Corps). However, the benefits of perceive critical habitat as an unfair and term conservation of A. l. var. inclusion are similarly diminished in unnecessary regulatory burden given the coachellae have already been and the fluvial sand transport areas by the expense and time involved in continue to be achieved through protections provided by the Coachella developing and implementing complex development and implementation of the Valley MSHCP/NCCP. Additionally, we regional and jurisdiction-wide HCPs, Coachella Valley MSHCP/NCCP. We, believe the educational benefits of such as the Coachella Valley MSHCP/ therefore, believe that the educational designating critical habitat for A. l. var. NCCP (as discussed further in Comment benefits of designating critical habitat coachellae on lands covered by the 15 below in the Summary of Comments for A. l. var. coachellae on lands Coachella Valley MSHCP/NCCP are and Recommendations section of this covered under the Coachella Valley small due to stakeholder involvement in rule). Exclusion of Coachella Valley MSHCP/NCCP are small. the design and implementation of the MSHCP/NCCP lands could help Educational benefits of designating Coachella Valley MSHCP/NCCP and preserve the partnerships we developed critical habitat for Astragalus publication of relevant information in with the County of Riverside, Coachella lentiginosus var. coachellae are also the previous proposed and final critical Valley Association of Governments, and largely redundant to those derived habitat rules in 2004 and 2005. There other local jurisdictions in the through the publication of the previous are no potential ancillary benefits under development of the HCP, foster future proposed and final critical habitat rules other laws that would result from partnerships and development of future for A. l. var. coachellae. These designation of non-Federal lands in the HCPs, and encourage the establishment documents discuss A. l. var. coachellae Coachella Valley. of future conservation and management biology and habitat requirements, the of habitat for A. l. var. coachellae and Benefits of Exclusion—Coachella Valley location of areas containing the physical other sensitive taxa. or biological features essential to the MSHCP/NCCP The Coachella Valley MSHCP/NCCP conservation of the taxon, and the We believe conservation benefits provides substantial protection and importance of areas supporting sand would be realized by forgoing management for Astragalus lentiginosus transport processes needed to maintain designation of critical habitat for var. coachellae, the fluvial sand suitable habitat for the taxon. Because Astragalus lentiginosus var. coachellae transport areas, and the physical or this information was made available to on lands covered by the Coachella biological features essential to the the public in these documents, we Valley MSHCP/NCCP, including: (1) conservation of the taxon. It also believe there is little educational benefit Continuance and strengthening of our addresses conservation issues from a of designating critical habitat for A. l. effective working relationships with all coordinated, integrated perspective var. coachellae. Coachella Valley MSHCP/NCCP rather than a piecemeal, project-by- jurisdictions and stakeholders to project approach (as would occur under Regulatory Benefit (Other State, Local, promote conservation of the A. l. var. section 7 of the Act or through smaller and Federal Laws) coachellae, its habitat, and 26 other taxa HCPs), thus resulting in coordinated The designation of critical habitat for covered by the HCP and their habitat; landscape-scale conservation that can some species may also strengthen or (2) allowance for continued meaningful contribute to genetic diversity by reinforce some of the provisions in other collaboration and cooperation in preserving covered species populations, State and Federal laws, such as the working toward protecting and habitat, and interconnected linkage California Environmental Quality Act recovering this taxon and the many areas that support recovery of A. l. var. (CEQA). These laws analyze the other taxa covered by the HCP, coachellae and other listed taxa. Also, potential for projects to significantly including conservation benefits that because impacts to plant species do not affect the environment. To date, the might not otherwise occur; (3) require an incidental take permit, local jurisdictions have not required encouragement for local jurisdictions to protections that plants receive under additional measures associated with fully participate in the Coachella Valley HCPs related to covered activities critical habitat for any species in their MSHCP/NCCP; and (4) encouragement without a Federal nexus are benefits discretionary approval processes (for of additional HCP and other that most likely would not be realized example, pursuant to CEQA), and are conservation plan development in the otherwise. Additionally, in order for the unlikely to do so in the future. This future on other private lands for this conservation anticipated by the potential benefit is, therefore, negligible and other federally listed and sensitive Coachella Valley MSHCP/NCCP to be in the Coachella Valley. taxa. fully realized, it is vital that permittees In summary, we believe that the In the case of Astragalus lentiginosus continue to work with the Service regulatory benefit through section var. coachellae in the Coachella Valley, during the implementation process to 7(a)(2) of the Act of designating critical the partnership and commitment by the ensure the goals of the plan are met habitat is small on non-Federal lands permittees of the Coachella Valley despite unanticipated issues that are covered under the Coachella Valley MSHCP/NCCP resulted in lands being likely to arise given the scope and MSHCP/NCCP and occupied by conserved and managed for the long complexity of the plan. Therefore, it is Astragalus lentiginosus var. coachellae term that will contribute to the recovery important that we encourage full because the likelihood of a future of the taxon. participation in such plans and Federal nexus in these areas is small, We developed a close partnership encourage voluntary coverage of listed and because the existing protections with the permittees of the Coachella plant taxa in such plans. afforded the taxon and its habitat by the Valley MSHCP/NCCP through the In summary, we believe excluding Coachella Valley MSHCP/NCCP likely development of the HCP, which land covered by the Coachella Valley diminish any regulatory benefits that incorporates protections (conserved MSHCP/NCCP from critical habitat will

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provide the significant benefit of help to recover this and other federally for healthy ecosystems upon which the maintaining existing regional HCP listed species. Therefore, in viability of threatened and endangered partnerships and fostering new ones. consideration of the relevant impact to species populations depend. We take current and future partnerships, as into consideration our partnerships and Weighing Benefits of Exclusion Against summarized in the Benefits of existing conservation actions that tribes Benefits of Inclusion—Coachella Valley Exclusion—Coachella Valley MSHCP/ have implemented or are currently MSHCP/NCCP NCCP section above, we determined the implementing when conducting our We reviewed and evaluated the significant benefits of exclusion analysis under section 4(b)(2) of the Act exclusion of approximately 15,140 ac outweigh the benefits of critical habitat in this final revised critical habitat (6,127 ha) of land within the boundaries designation. designation. We also take into of the Coachella Valley MSHCP/NCCP consideration conservation actions that Exclusion Will Not Result in Extinction from our revised designation of critical are planned as part of our ongoing of the Species—Coachella Valley habitat, and we determined the benefits commitment to the government-to- MSHCP/NCCP of excluding these lands outweigh the government relationship with tribes. benefits of including them. The We determined that the exclusion of Section 4(b)(2) of the Act allows the regulatory benefits of including the 15,140 ac (6,127 ha) of land within the Secretary to exclude areas from critical portion of these lands occupied by boundaries of the Coachella Valley habitat based on economic impacts, Astragalus lentiginosus var. coachellae MSHCP/NCCP from the designation of impacts to National security, or other in the designation are small because of critical habitat for Astragalus relevant impacts if the Secretary the unlikelihood of a Federal nexus. The lentiginosus var. coachellae will not determines that the benefits of such regulatory benefits of including the result in extinction of the taxon. exclusion outweigh the benefits of portion of these lands not occupied by Protections afforded the taxon and its designating the area as critical habitat. the taxon (areas supporting fluvial sand habitat by the Coachella Valley MSHCP/ However, an exclusion cannot occur if transport processes) are greater due to NCCP provide assurances that the taxon it will result in the extinction of the the possibility of a Federal nexus will not go extinct as a result of species concerned. through the Corps. However, these excluding these lands from the critical We determined approximately 893 ac benefits are reduced by the existence of habitat designation. The jeopardy (361 ha) of lands owned by or under the protections provided through the standard of section 7 of the Act will also jurisdiction of two Tribes meet the Coachella Valley MSHCP/NCCP that are provide protection in occupied areas definition of critical habitat under the mostly redundant to the regulatory when there is a Federal nexus. Act. These tribal lands are found within protections that would be achieved Therefore, based on the above Units 1 and 2, and are owned by or through designation of critical habitat. discussion, the Secretary is exercising under the jurisdiction of the Morongo The educational benefits of including his discretion to exclude 15,140 ac Band of Mission Indians and the Agua lands covered under the Coachella (6,127 ha) of land within the boundaries Caliente Band of Cahuilla Indians. In Valley MSHCP/NCCP are small in of the Coachella Valley MSHCP/NCCP making our final decision with regard to occupied areas and unoccupied areas. from this final critical habitat these tribal lands, we considered the We believe the benefits of excluding designation. factors listed above. Under section lands covered by the Coachella Valley 4(b)(2) of the Act, the Secretary is MSHCP/NCCP from critical habitat are Exclusions Under Section 4(b)(2) of the Act—Tribal Lands exercising his discretion to exclude more significant. Exclusion of these approximately 893 ac (361 ha) of land lands from critical habitat will help In accordance with the Secretarial comprised of all reservation lands from preserve the partnerships we have Order 3206, ‘‘American Indian Tribal this final revised critical habitat developed with local jurisdictions and Rights, Federal-Tribal Trust designation (this is all of the tribal land project proponents through the Responsibilities, and the Endangered proposed as critical habitat for A. l. var. development and ongoing Species Act’’ (June 5, 1997); the coachellae). As described in our implementation of the Coachella Valley President’s memorandum of April 29, analysis below, this conclusion was MSHCP/NCCP and aid in fostering 1994, ‘‘Government-to-Government reached after considering the relevant future partnerships for the benefit of Relations with Native American Tribal impacts of specifying these areas as listed species. Designation of lands Governments’’ (59 FR 22951); Executive critical habitat. covered by the Coachella Valley Order 13175; and the relevant provision For our 4(b)(2) balancing analysis we MSHCP/NCCP may discourage other of the Departmental Manual of the considered our partnership with the partners from seeking, amending, or Department of the Interior (512 DM 2), Agua Caliente Band of Cahuilla Indians completing HCCP/NCCP plans that we believe that fish, wildlife, and other and analyzed the benefits of including cover Astragalus lentiginosus var. natural resources on tribal lands are and excluding those lands within the coachellae and other listed taxa. better managed under tribal authorities, Agua Caliente Band of Cahuilla Indians Designation of critical habitat does not policies, and programs than through Reservation boundary that meet the require that management or recovery Federal regulation wherever possible definition of critical habitat. The Agua actions take place on the lands included and practicable. Based on this Caliente Indian Reservation consists of in the designation. The Coachella Valley philosophy, we believe that, in most approximately 31,500 acres of land in a MSHCP/NCCP, however, will provide cases, designation of tribal lands as checkerboard of parcels found primarily for significant conservation and critical habitat provides very little in the City of Palm Springs, and the management of A. l. var. coachellae and additional benefit to federally listed Cities of Cathedral City and Rancho its habitat and help achieve recovery of species. Conversely, such designation is Mirage, and unincorporated Riverside this species through habitat often viewed by tribes as an County, California. This area includes enhancement and restoration, functional unwarranted and unwanted intrusion approximately 579 ac (234 ha) that meet connections to adjoining habitat, and into tribal self-governance, thus the definition of Astragalus lentiginosus monitoring efforts. Additional HCPs or compromising the government-to- var. coachellae critical habitat in Unit 2, other management plans potentially government relationship essential to all of which are within the Agua fostered by this exclusion would also achieving our mutual goals of managing Caliente Band of Cahuilla Indians

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Reservation boundary. The Agua We determined approximately 313 ac unobstructed by development, that Caliente Band of Cahuilla Indians has (127 ha) of lands owned by or under the contain suitable habitat with intact worked with our office to develop a jurisdiction of the Morongo Band of wind and depositional regimes. We draft HCP that includes A. l. var. Mission Indians meet the definition of anticipate that the Morongo Band of coachellae as a covered taxon, and critical habitat under the Act for Mission Indians’ dedication to includes conservation measures for the Astragalus lentiginosus var. coachellae. maintaining natural resources and taxon and its habitat. Although the Agua For our section 4(b)(2) balancing minimizing impacts to those resources Caliente Band of Cahuilla Indians analysis we considered our partnership on their lands will contribute greatly to notified us in a letter dated October 6, with the Tribe and analyzed the benefits the conservation of A. l. var. coachellae, 2010, that they suspended their pursuit of including and excluding those lands its habitat, and sand transport processes of a Section 10(a) permit for their draft within the Morongo Band of Mission on the Morongo Band of Mission HCP (ACBCI 2010a, p. 1), they consider Indians Reservation boundary that meet Indians Reservation. the draft plan to be a Tribal-approved, the definition of critical habitat. Most of the lands that meet the final document and implement it as The Morongo Band of Mission Indians definition of critical habitat within the such for land-use planning on all (formerly the Morongo Band of Cahuilla Morongo Band of Mission Indians Reservation lands. The Tribe is Mission Indians of the Morongo Reservation are areas supporting the continuing to implement the Reservation) Reservation consists of fluvial transport of sand carried by the conservation strategies outlined in the over 35,000 ac of land on the western San Gorgonio River into areas occupied document, and has expressed their end of the Coachella Valley. This area by major occurrences of Astragalus intention to continue to do so (Park includes approximately 313 ac (12 ha) lentiginosus var. coachellae. Lands that 2011, p. 1; pers. com. J. McBride, 2012) that meet the definition of Astragalus meet the definition of critical habitat and protect and manage natural lentiginosus var. coachellae critical within the Agua Caliente Indian resources within their jurisdiction habitat in Unit 1. Almost all (97 percent) Reservation are all areas with sand (ACBCI 2010b, p. ES–1; Park 2011, p. 1). of these Tribal lands identified as formations that form the basis of essential for the conservation of A. l. The Tribe is implementing numerous suitable habitat for A. l. var. coachellae. var. coachellae are fluvial sand provisions aimed specifically at Activities on lands that meet the transport areas not occupied by the protecting Astragalus lentiginosus var. definition of critical habitat within these taxon. The Morongo Band of Mission coachellae habitat (ACBCI 2010b, pp. 2– tribal reservations could affect the taxon Indians has not completed a directly and also affect sand transport 3, 4–32, 4–53, 4–67, 4–106)), including management plan that specifically in areas meeting the definition of processes. Therefore, we want to foster provides for conservation of processes strong partnerships with these Tribes critical habitat for the taxon. contributing to the maintenance of A. l. Conservation objectives for A. l. var. and work cooperatively toward var. coachellae habitat. However, the conservation of A. l. var. coachellae. coachellae include avoidance, Tribe has land designations and minimization, and/or mitigation of management policies and practices that Benefits of Inclusion—Tribal Lands impacts to active or ephemeral sand contribute to the conservation of the fields within the Section 6 Target Regulatory Benefits (Endangered fluvial sand transport areas identified as Species Act) Acquisition Area (most of the Agua essential habitat for A. l. var. coachellae Caliente Band of Cahuilla Indians lands (Martin 2011, pp. 1–2). The principal benefit of including an that meet the definition of critical For example, human impacts will be area in a critical habitat designation is habitat for A. l. var. coachellae are limited in the areas meeting the the requirement of Federal agencies to within the Section 6 (Township 4 definition of critical habitat due to their ensure actions they fund, authorize, or South, Range 5 East) Target Acquisition significant value to the Tribe in their carry out are not likely to result in the Area, which contains the sand natural state, and because they are destruction or adverse modification of formations that form the basis of A. l. subject to natural hazards, minimizing any designated critical habitat, the var. coachellae habitat (see Primary their development value. Also, the regulatory standard of section 7(a)(2) of Constituent Element for Astragalus Morongo Band of Mission Indians have the Act under which consultation is lentiginosus var. coachellae section instituted an ordinance limiting completed. Federal agencies must above)). Within the Section 6 Target recreational OHV use to areas where consult with the Service on actions that Acquisition Area, acquisition or such activities will not impact fluvial may affect critical habitat and must dedication of lands to the Habitat sand transport or habitat areas. avoid destroying or adversely modifying Preserve and management in perpetuity Additionally, the Morongo critical habitat. Federal agencies must is targeted to occur for mitigation of Environmental Protection Department— also consult with us on actions that may impacts to covered species (including A. Resource Conservation program has affect a listed species and refrain from l. var. coachellae). The Tribe anticipates implemented nonnative species removal undertaking actions that are likely to conservation of at least 177 acres within projects throughout Morongo Band of jeopardize the continued existence of the Section 6 Target Acquisition Area, Mission Indians lands with consultation such species. The analysis of effects to and acquisition of a minimum of 640 from the Inland Empire Resource critical habitat is a separate and acres of habitat for conservation in other Conservation District and the Natural different analysis from that of the effects areas that are potentially suitable to Resources Conservation Service (U.S. to the species. Therefore, the difference support the taxon. We anticipate that Department of Agriculture). Over 65 in outcomes of these two analyses these provisions and others aimed at percent of the Morongo Band of Mission represents the regulatory benefit of avoiding direct and indirect impacts to Indians lands are listed as ‘‘Open Space/ critical habitat. The regulatory standards the taxon and avoiding, minimizing, or Conservation element areas’’ in the are different, as the jeopardy analysis mitigating impacts to its habitat, sand Morongo Band of Mission Indians investigates the action’s impact on the sources, and sand transport will play an General Plan, including active survival and recovery of the species, important role in conserving the taxon ephemeral washes that contribute to the while the adverse modification analysis and preventing adverse alteration of A. San Gorgonio River fluvial sand focuses on the action’s effects on the l. var. coachellae habitat. transport system and large areas designated habitat’s contribution to

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conservation. This will, in many of the Act on designated Tribal lands made aware of the importance of these instances, lead to different results and where there is a Federal nexus would be areas to A. l. var. coachellae different regulatory requirements. Thus, similar to the protections already put in conservation through the development critical habitat designations may place by the Tribes. Therefore, we and implementation of the Coachella provide greater benefits to the recovery anticipate the regulatory benefit of Valley MSHCP/NCCP. We, therefore, of a species than would listing alone, including the tribal lands in the believe there is no significant especially in instances when critical designation to be small. educational benefit to including Tribal habitat has been designated where the Educational Benefit lands in the designation. species does not occur. Educational benefits of designating Critical habitat may provide a Designating critical habitat also can be critical habitat for Astragalus regulatory benefit for Astragalus beneficial because the process of lentiginosus var. coachellae are also lentiginosus var. coachellae when there proposing critical habitat provides the largely redundant to those derived is a Federal nexus present for a project opportunity for peer review and public through the publication of the previous that might adversely modify critical comment on lands we propose to proposed and final critical habitat rules habitat. On tribal reservations there is a designate as critical habitat, our criteria for A. l. var. coachellae. These Federal nexus through the Bureau of used to identify those lands, potential documents discuss A. l. var. coachellae Indian Affairs (BIA) for projects that impacts from the proposal, and biology and habitat requirements, the could adversely modify critical habitat. information on the taxon itself. We location of areas containing the physical Therefore, there may be a regulatory believe the designation of critical or biological features essential to the benefit of including the tribal lands in habitat may generally provide conservation of the taxon, and the the designation, as some projects on previously unavailable information to importance of areas supporting sand the public. Public education regarding tribal lands identified as essential transport processes needed to maintain the potential conservation value of an habitat within Units 1 and 2 may suitable habitat for the taxon. Because area may also help focus conservation require consultation with the Service. this information was made available to However, if protections provided by and management efforts on areas of high the public in these documents, we critical habitat are redundant with conservation value for certain species. believe there is little educational benefit protections already in place, the benefits Information about Astragalus of designating critical habitat for A. l. of inclusion in critical habitat are lentiginosus var. coachellae and its var. coachellae. reduced. As discussed above, although habitat that reaches a wide audience, the Agua Caliente Band of Cahuilla including parties concerned about and Regulatory Benefit (Other State, Local, Indians are no longer pursuing a Section engaged in conservation activities, is and Federal Laws) 10(a) permit for their draft HCP (ACBCI valuable because the public may not be The designation of critical habitat for 2010a, p. 1), the Tribe is continuing to aware of documented (or some species may also strengthen or implement the conservation strategies undocumented) A. l. var. coachellae reinforce some of the provisions in other outlined in the document, and plans to occurrences and unoccupied areas State and Federal laws, such as the continue doing so (Park 2011, p. 1; pers. supporting sand transport processes that com. J. McBride, 2012). The protections have not been conserved or are not California Environmental Quality Act afforded sand transport processes and being managed. (CEQA). These laws analyze the Astragalus lentiginosus var. coachellae Due to the existence of survey data potential for projects to significantly habitat by these conservation strategies and development of the Agua Caliente affect the environment. To date, the provide for avoidance, minimization, Band of Cahuilla Indians’ draft HCP, local jurisdictions have not required and mitigation of impacts to A. l. var. stakeholders in the region are likely additional measures associated with coachellae habitat, and habitat aware of the existence of A. l. var. critical habitat in their discretionary conservation and management (see coachellae on the portions of Agua approval processes (for example, above discussion of conservation Caliente Band of Cahuilla Indians lands pursuant to the California objectives on Agua Caliente Band of proposed as critical habitat and the Environmental Quality Act), and are Cahuilla Indians lands for more detail). importance of these areas to the unlikely to do so in the future. This Morongo Band of Mission Indians also conservation of the taxon. Morongo potential benefit is, therefore, negligible provides protection for sand transport Band of Mission Indians lands in Unit in the Coachella Valley. processes and A. l. var. coachellae 1 consist entirely of areas not occupied In summary, we believe there would habitat through Tribal ordinances, by A. l. var. coachellae that support likely only be a minimal regulatory management activities, protections fluvial sand transport processes crucial benefit of Astragalus lentiginosus var. provided in the Tribe’s General Plan, to maintaining the sand formations in coachellae critical habitat designation and the fact that the Tribe considers Unit 1 upon which the taxon depends. on Agua Caliente Band of Cahuilla Tribal lands meeting the definition of During the development of the proposed Indians and Morongo Band of Mission critical habitat to be of significant value revised critical habitat rule, we met with Indians lands, and no significant in their natural state. The regulatory representatives from the Morongo Band educational benefits. benefits of designating critical habitat of Mission Indians and the BIA to Benefits of Exclusion—Tribal Lands for A. l. var. coachellae on Agua inform them of the proposal. As a result Caliente Band of Cahuilla Indians and of this meeting and further interactions We believe significant benefits would Morongo Band of Mission Indians lands with tribal representatives and the BIA, be realized by forgoing designation of are reduced by these protections, which we believe the importance of the fluvial critical habitat on reservation lands are to some extent redundant to the sand transport areas on Morongo Band managed by the Agua Caliente Band of regulatory protections provided by of Mission Indians lands to the Cahuilla Indians and the Morongo Band critical habitat designation. We expect conservation of A. l. var. coachellae has of Mission Indians. These benefits that the avoidance and minimization of been amply communicated to those include: impacts to, and conservation of, A. l. with the most direct influence over the (1) Continuance and strengthening of var. coachellae habitat that would likely management of these areas. The public our effective working relationships with result from consultation under section 7 and local stakeholders have also been all tribes to promote conservation of

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Astragalus lentiginosus var. coachellae management plans. Therefore, we and other endangered and threatened and its habitat; believe excluding tribal reservation species. Therefore, in consideration of (2) Allowance for continued lands from critical habitat provides the the relevant impact to our government- meaningful collaboration and significant benefit of maintaining and to-government relationship with tribes cooperation in working toward strengthening existing conservation and our current and future conservation recovering this species, including partnerships and fostering new ones. partnerships, we determined the conservation benefits that might not Weighing Benefits of Exclusion Against significant benefits of exclusion otherwise occur; and outweigh the benefits of critical habitat (3) Encouragement of this and other Benefits of Inclusion—Tribal Lands designation. tribes to complete management plans for We reviewed and evaluated the this and other federally listed and benefits of inclusion and the benefits of In summary, we find that the sensitive species and habitats, and exclusion of Agua Caliente Band of exclusion of Agua Caliente Band of engage in collaboration and cooperation Cahuilla Indians reservation lands and Cahuilla Indians and Morongo Band of with the Service and other organizations Morongo Band of Mission Indians Mission Indians reservation lands from and individuals interested in reservation lands as critical habitat for this final critical habitat designation conservation of the taxon, its habitat, Astragalus lentiginosus var. coachellae. will preserve our partnerships with and other biota of mutual interest. Including these areas in the critical tribes and foster future dialog and We believe that fish, wildlife, and habitat designation for A. l. var. cooperative actions as well as other natural resources on tribal lands coachellae may provide some additional development of habitat management are better managed under tribal protection under section 7(a)(2) of the plans. These partnership benefits are authorities, policies, and programs than Act when there is a Federal nexus, significant and outweigh the potential through Federal regulation wherever although we expect any benefits to be regulatory benefits and any small possible and practicable. We are small, because they would be at least educational benefits of including these committed to ongoing meaningful partially redundant to existing collaboration and cooperation with all protections provided by the Tribes. We portions of Unit 1 and Unit 2 in critical the affected tribes. For land on the do not anticipate educational benefits or habitat for Astragalus lentiginosus var. Morongo Band of Mission Indians ancillary regulatory benefit from other coachellae. Reservation, which is not currently laws such as CEQA from designating Exclusion Will Not Result in Extinction covered by an HCP, we will continue to these areas as critical habitat. of the Species—Tribal Lands work with BIA and the Tribe to develop The benefits of excluding Agua species and habitat management plans Caliente Band of Cahuilla Indians We determined that the exclusion of to promote Astragalus lentiginosus var. reservation lands and Morongo Band of 893 ac (361 ha) of Agua Caliente Band coachellae conservation. For land on the Mission Indians reservation lands from of Cahuilla Indians and Morongo Band Agua Caliente Band of Cahuilla Indians critical habitat are significant. Exclusion of Mission Indians reservation land Reservation, where development and of these lands from critical habitat will from the revised designation of natural resources are being managed in help preserve the partnerships we have Astragalus lentiginosus var. coachellae accordance with the Tribe’s developed and reinforce those we are critical habitat will not result in building with the Tribes, and exclusion conservation strategies, which include extinction of the taxon for the following protections for A. l. var. coachellae, we will foster future partnerships and reasons. First, the jeopardy standard of will continue to work with the Tribe as development of management plans. As section 7 of the Act and routine they implement these strategies. discussed above, both Tribes are Critical habitat designation is often implementing measures that further the implementation of conservation viewed by tribes as an unwarranted and conservation of Astragalus lentiginosus measures through the section 7 process unwanted intrusion into tribal self- var. coachellae habitat and land due to occupancy of Astragalus governance, thus compromising the supporting sand transport processes lentiginosus var. coachellae will provide government-to-government relationship needed to maintain that habitat. protection to the taxon on Agua Caliente essential to achieving our mutual goals Damaging our partnerships with the Band of Cahuilla Indians and Morongo of managing for healthy ecosystems Tribes could have the effect of Band of Mission Indians lands occupied upon which the viability of threatened dissuading the Tribes from continuing by the taxon where there is a Federal and endangered species populations these conservation efforts. Agua nexus. Also, on the Morongo Band of depend. For example, in comments Caliente Band of Cahuilla Indians, Mission Indians lands, most of which submitted during the public comment Morongo Band of Mission Indians, and support fluvial sand transport processes, periods, the Morongo Band of Mission BIA emphasized through comment the Tribe’s intention to maintain the Indians, the Agua Caliente Band of letters provided during the public areas in their natural state will help Cahuilla Indians, and the U.S. Bureau of comment period their belief that ensure the movement of sand into Indian Affairs indicated designation of designation of critical habitat on tribal occupied areas will continue critical habitat for Astragalus lands undermines tribal sovereign unimpeded. Additionally, both Tribes lentiginosus var. coachellae on tribal governmental authority and interferes provide protection for the taxon, its lands would negatively impact tribal with the cooperative government-to- habitat, and the processes supporting its relations. Both affected tribes submitted government trust relationship between habitat via the avenues of conservation comments indicating they were opposed the tribes and the United States. We discussed above. Therefore, based on to critical habitat designation or have excluded tribal lands from believed their lands should be excluded. previous critical habitat designations, the above discussion, the Secretary is Exclusion of tribal reservation lands which has provided the benefit of exercising his discretion to exclude from critical habitat will help preserve strengthening our partnerships with approximately 893 ac (361 ha) of Agua the partnerships we have developed, tribal interests in the past, and we are Caliente Band of Cahuilla Indians and reinforce those relationships we are committed to working with our tribal Morongo Band of Mission Indians building with tribes, and foster future partners to further the conservation of reservation land from this revised partnerships and development of future Astragalus lentiginosus var. coachellae critical habitat designation.

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Summary of Comments and which Astragalus lentiginosus var. conservation of the taxon. However, Recommendations coachellae occurs and the geological discussions of these potential We requested comments or processes that sustain its habitat. We improvements are beyond the scope of information from the public on the received responses from two peer this critical habitat rule. proposed revised designation of critical reviewers. Comment 3: One peer reviewer We reviewed all comments received habitat for Astragalus lentiginosus var. expressed concern that we did not from the two peer reviewers for coachellae during two comment propose sand source areas in the hills substantive issues and new information periods. We also contacted appropriate and mountains surrounding the regarding critical habitat for Astragalus Federal, State, and local agencies; Coachella Valley, where sediment is lentiginosus var. coachellae. In general, scientific organizations; and other generated via water erosion (areas the peer reviewers supported the interested parties and invited them to having 10 percent slope or more) on the methods used to determine the basis of presumed redundancy of comment on the proposed revised rule proposed revised critical habitat and draft economic analysis during transport channels and eroding uplands boundaries, but disagreed with our (which, according to the reviewer, could these comment periods. The first decision not to propose the hills and comment period, associated with the be reduced with inappropriate mountains where sediment is generated development). The reviewer urged us to publication of the proposed revised rule via water erosion, and disagreed with (76 FR 53224), opened on August 25, make certain that the critical habitat the potential for any exclusions in the designation includes all possible sand 2011, and closed on October 24, 2011. final designation. The peer reviewers The Service published a notice source areas, especially in light of the also provided additional information, degree of existing impairment of the announcing the publication of the clarification, and suggestions to improve proposed revised critical habitat sand supply system. Additionally, the the final critical habitat rule. Peer reviewer stated that if specific areas of designation in The Press-Enterprise on reviewer comments, additional September 2, 2011. We also requested critical habitat are subsequently information, clarification, and excluded by the Secretary under section comments on the proposed revised suggestions are addressed in the critical habitat designation and 4(b)(2) of the Act, protection of all following summary and incorporated possible source areas will become that associated draft economic analysis into the final rule as appropriate. during a comment period that opened much more urgent. May 16, 2012, and closed on June 15, Peer Reviewer Comments Response to Comment 3: The 2012 (a notice announcing the Comment 1: One peer reviewer extensive areas in the hills and availability of the draft economic expressed strong support for the geo- mountains that are ten percent slope or analysis for the proposed revised critical biological approach we used to identify greater and generate sediment via habitat designation was published in the critical habitat for Astragalus erosion are important, but including all Federal Register on May 16, 2012 (77 lentiginosus var. coachellae. possible sand source areas in the critical FR 28846)). We received one request for Another peer reviewer expressed habitat designation is not essential for a public hearing. The public hearing support of our use of modeled habitat to the conservation of Astragalus was conducted on May 31, 2012, in identify critical habitat for Astragalus lentiginosus var. coachellae. We have Palm Springs, California. No comments lentiginosus var. coachellae. determined that the areas supporting were received during the public hearing. Response to Comment 1: We fluvial sand transport processes (i.e., During the first comment period, we appreciate the peer reviewers’ main stream channels in Units 1, 2, and received 17 comment letters directly comments. We believe the methods 3; and alluvial deposits containing addressing the proposed revised critical used to produce the revised critical multiple washes in Unit 4) are essential habitat designation. During the second habitat designation are well-supported for the conservation of A. l. var. comment period, we received three and both peer reviewers generally coachellae because without these areas, comment letters addressing the agreed on the validity of our methods. sand would not be moved from the base proposed revised critical habitat Comment 2: One peer reviewer of hills and mountains into the areas designation or the draft economic pointed out that there may be higher occupied by A. l. var. coachellae, which analysis. All substantive information quality GIS data available now than would result in serious degradation of provided during comment periods has were available at the time the model A. l. var. coachellae habitat. We either been incorporated directly into was generated, and that there might be therefore did not propose areas with ten this designation or addressed below. relevant GIS data available now that did percent slope or greater as critical Comments received were grouped into not exist or was not accessible when the habitat for the taxon (see Criteria Used five general issues specifically relating model was generated. The peer reviewer To Identify Critical Habitat section to the proposed revised critical habitat stated that the modeled habitat we used above for more discussion). designation for Astragalus lentiginosus for this analysis ‘‘should be presented as Comment 4: One peer reviewer var. coachellae and are addressed in the a dynamic perspective of habitat which expressed concern regarding the following summary and incorporated may change in the future’’—in other exclusions we considered in the into the final rule as appropriate. words, that we should clearly state that proposed rule. The peer reviewer urged the data informing the model that serve caution regarding exclusions that might, Peer Review as part of the basis for this critical according to the reviewer, compromise In accordance with our peer review habitat designation may change over the sand supply system. The peer policy published on July 1, 1994 (59 FR time. reviewer also was not convinced that 34270), we solicited expert opinions Response to Comment 2: Any future the Coachella Valley MSHCP/NCCP from two experts in plant biology and improvements in the quality of the data provides adequate levels of funding, one expert in the geomorphology of the available to inform habitat models of the implementation, and oversight of Coachella Valley, all of whom are type used in part to identify critical management actions required to knowledgeable individuals with habitat for Astragalus lentiginosus var. maintain or improve habitat for scientific expertise that included coachellae may be used to create future Astragalus lentiginosus var. coachellae familiarity with the geographic region in models to guide future actions for the (for example, removal of nonnative

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plants, modifications to groundwater habitat before soliciting opinions. The The reviewer also stated that availability, and mesquite restoration). reviewer stated that because a large percentages and sample sizes would Response to Comment 4: Please see portion of the proposed critical habitat better summarize data from the the Exclusions section above for our may be excluded, those reviewing the pollinator exclusion study of Meinke et explanation of why we do not expect proposal cannot have a concrete idea of al. (2007, p. 36), and provided the exclusions we have made in this how many acres will be included and references for our soil seed bank critical habitat designation to where these acres exist, which, viability discussion including compromise the sand transport system. according to the reviewer, makes it very Ziemkiewicz and Cronin (1987) (Journal In that section, we also discuss difficult to judge the merits of the of Rangeland Management 34(2): pp. implementation of the Coachella Valley proposal. 94–97) and Ralphs and Cronin (1987) MSHCP/NCCP and why we believe the This peer reviewer also requested we (Weed Science 35: pp. 792–795). HCP adequately provides for the clarify the fact that all Tribal lands that Response to Comment 7: We conservation of Astragalus lentiginosus were proposed as critical habitat for appreciate the peer reviewer’s var. coachellae and its habitat. Astragalus lentiginosus var. coachellae suggestions and the information Comment 5: One peer reviewer feels were also considered for exclusion from provided. We have incorporated this that redundancy is an important aspect the designation. information into the appropriate of building a robust system for the Response to Comment 6: We provided sections of this rule. protection of biological resources, and the acreage of areas being considered for Comment 8: One peer reviewer noted that the Service should contribute to exclusion from the critical habitat that much of the work cited in the this redundancy by including areas in designation in the proposed critical proposed critical habitat rule is this critical habitat designation that are habitat rule for Astragalus lentiginosus unpublished. This reviewer suggested already receiving protection under var. coachellae. We do not know at the that perhaps the Service should HCPs. This peer reviewer pointed out time the proposal is published, which, consider incentivizing publication in a peer-reviewed journal. the need for redundancy of protections if any, of these areas will be excluded if we are interested in building robust Response to Comment 8: We from the final designation because we systems of conservation and was appreciate the peer reviewer’s rely in part on comments received concerned that protections afforded suggestion and will continue to during the comment period following Astragalus lentiginosus var. coachellae encourage publication of results in peer- publication of the proposed rule to through the Coachella Valley fringe-toed reviewed research journals. determine which areas being considered lizard HCP could be lost if the fringe- Comment 9: One peer reviewer for exclusion in fact warrant exclusion toed lizard is delisted. suggested that Table 2 in the proposed Response to Comment 5: We also from the designation. We did not rule could be improved by presenting agree that redundancy of protections indicate lands being considered for the amount of occupied and modeled can be beneficial. However, the lands exclusion on the maps in the proposed lands organized by political categories acquired under the Coachella Valley rule. used in Table 2 of the proposed rule, fringe-toed lizard HCP have been In the Exclusions section above, we then listing all of the exclusions, and subsumed into and are managed as part have clarified the fact that all Tribal then presenting what remains as of the Coachella Valley MSHCP/NCCP lands that were proposed as critical proposed critical habitat. The reviewer reserve system, which we believe habitat for Astragalus lentiginosus var. stated that it would add greater adequately provides for the protection coachellae were also considered for transparency to know what may be of Astragalus lentiginosus var. exclusion from the designation. required to ensure for the continued coachellae and its habitat regardless of Comment 7: One peer reviewer existence of the taxon, and what is the listing status of the Coachella Valley asserted that much more is known about actually being protected if this fringe-toed lizard. Part of the incentive the pollination and reproductive biology information were in one place. for land managers to participate in the of other desert Astragalus taxa at Ash This peer reviewer suggested the HCP process is the prospect of Meadows NWR, and that this proposed critical habitat rule could also streamlining regulatory oversight of information could be of use in Coachella be improved by providing better maps. development and conservation Valley. The reviewer recommended the In these maps, the reviewer feels it planning. Critical habitat designated for Pavlik and Barbour (1986) report would be very valuable to include the a plant does not always add an extra (Biological Conservation 46 (1988), pp. considered exclusions and land regulatory layer (for example, when 217–242) for further information. ownership, particularly Federal lands there is no Federal nexus triggering This peer reviewer also asserted that because of the differences in protection section 7 consultation). However, land we were incorrect when we stated in the provided to plants by the Act on Federal managers may view designation of proposed critical habitat rule that Mazer versus non-Federal lands. critical habitat as adding an extra layer and Travers found Astragalus Response to Comment 9: We of costly and time-consuming regulatory lentiginosus var. piscinensis to be appreciate the peer reviewer’s procedure. This perception may incapable of autogamy (the reviewer suggestions. We have organized the land dissuade some land managers in other sited Mazer and Travers 1992, p. 91). ownership table in this critical habitat areas from considering HCPs worth The reviewer points out that Mazer and final rule as suggested (see Table 1). We pursuing for other species. Designation Travers (1992) reported A. l. var. will consider adding greater detail to of critical habitat for a plant within an piscinensis to have produced selfed maps included in critical habitat rules, operable established HCP could seed at very low levels, which is but the printing standards of the Federal jeopardize future conservation actions consistent with the finding of Meinke et Register are not compatible with by other potential applicants by al. (2007) that A. l. var. coachellae detailed features that would show reducing the perceived value of the HCP produces selfed seed at very low levels. parcel-level land ownership data. We process for stakeholders. The reviewer goes on to state that they constructed the critical habitat units Comment 6: One peer reviewer stated observed low levels of selfed seed set in using Geographic Information System that the Service should determine what A. l. var. variabilis in greenhouse (GIS). The resulting critical habitat GIS we would like to propose as critical studies. shapefiles are available by request from

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the Carlsbad Field Office (see FOR habitat designation for Peninsular Secretary is exercising his discretion to FURTHER INFORMATION CONTACT). bighorn sheep. exclude all Agua Caliente Band of Comment 10: One peer reviewer Further, Agua Caliente Band of Cahuilla Indians lands from this final pointed out that application of herbicide Cahuilla Indians state they would have revised critical habitat designation (see may affect the soil seed bank and a disincentive to continue enforcing the Exclusions Under Section 4(b)(2) of the suggested we conduct a study which draft 2010 Tribal HCP with respect to Act—Tribal Lands section above). explores the effects of various Astragalus lentiginosus var. coachellae Comment 12: The Morongo Band of herbicides on the seed bank of if critical habitat is designated on Agua Mission Indians requested that their Astragalus lentiginosus var. coachellae Caliente Band of Cahuilla Indians lands. lands be excluded from the critical prior to implementing any management And without enforcement of the draft habitat designation for Astragalus activities involving herbicide. HCP, ‘‘conservation on the Reservation lentiginosus var. coachellae. In support Response to Comment 10: We will proceed in an incomplete and of this request, the Morongo Band of appreciate the peer reviewer’s concern piecemeal fashion, using section 7 Mission Indians provided descriptions and have edited the appropriate section consultations where there is a Federal of land designations and management of this final critical habitat rule to nexus, and no fee collection or policies and practices they assert will address the potential for herbicides to mitigation on fee land,’’ according to the preserve and limit impacts to biological adversely impact the soil seed bank. Agua Caliente Band of Cahuilla Indians. resources including fluvial sand Although they have not finalized the Potential impacts from herbicides will transport processes on Morongo Band of draft 2010 Tribal HCP and secured a be considered during implementation of Mission Indians lands. They also permit under section 10(a)(1)(B) of the management activities affecting described nonnative plant removal Act, Agua Caliente Band of Cahuilla Astragalus lentiginosus var. coachellae. projects and a tribal ordinance aimed at Indians state that because they have controlling OHV use on Morongo Band Comment From Tribal Interests been enforcing the terms of the draft of Mission Indians lands. They argued 2010 Tribal HCP and continue to Comment 11: The Agua Caliente Band that although they have not completed maintain their relationship with the of Cahuilla Indians asserted that the a management plan that specifically Service, Agua Caliente Band of Cahuilla provides for conservation of A. l. var. protections afforded by their draft 2010 Indians lands should be excluded from coachellae, the policies and practices Tribal Habitat Conservation Plan (draft the critical habitat designation for A. l. they have implemented contribute to 2010 Tribal HCP) are equal to those var. coachellae. the conservation and continuance of expected to be provided by a critical Additionally, Agua Caliente Band of fluvial sand transport and thus habitat designation. Agua Caliente Band Cahuilla Indians expressed support for eliminate the need for designation of of Cahuilla Indians listed the goals for exclusion of tribal lands from the proposed Morongo Band of Mission conserving Astragalus lentiginosus var. designation under section 4(b)(2) of the Indians lands. coachellae as outlined in the draft 2010 Act, because such an exclusion would The Morongo Band of Mission Indians Tribal HCP and described the measures be in keeping with Secretarial Order also provided a discussion of tribal self- put forth in the draft 2010 Tribal HCP 3206 (June 5, 1997) entitled, ‘‘American governance and the protocols of a aimed at conserving A. l. var. coachellae Indian Tribal Rights, Federal-Tribal government-to-government relationship habitat. They also included language Trust responsibilities, and the under Secretarial Order 3206, stating from the draft 2010 Tribal HCP Endangered Species Act’’ (discussed in that ‘‘* * * Congressional and describing tribal lands on the Coachella the Exclusions Under Section 4(b)(2) of Administrative policies should continue Valley floor and the fluvial sand the Act—Tribal Lands section above). to promote tribal self-government, self- transport process areas and planned In summary, Agua Caliente Band of sufficiency, and self-determination, mitigation for development impacts in Cahuilla Indians supports exclusion of recognizing and endorsing the these areas. tribal lands from this critical habitat fundamental rights of Morongo to set The Agua Caliente Band of Cahuilla designation and reliance on the draft our own priorities and make decisions Indians also described their relationship 2010 Tribal HCP to avoid ‘‘additional, affecting our resources and distinctive with the Service by stating, ‘‘The Tribe unnecessary regulatory burden’’ they ways of life. Morongo Band of Mission has, for the past 14 years, been a feel would result from designation of Indians has the ability and resources to consistent partner with the Service to critical habitat on their lands. manage [Morongo Band of Mission develop and implement a series of Response to Comment 11: We Indians lands proposed as critical increasingly detailed and sophisticated understand that the Agua Caliente Band habitat for Astragalus lentiginosus var. Tribal HCPs that provide protection to of Cahuilla Indians considers the draft coachellae] and implement reasonable endangered and sensitive species on the Tribal HCP to be a Tribal-approved, and prudent alternatives to avoid Reservation. It is important to note that final document and implements it as destruction or adverse modifications to the Tribe has always acted in good faith such for land-use planning on all fluvial sand transport in [these areas].’’ and chose to develop these plans which Reservation lands. We have taken their Response to Comment 12: We have include strict provisions for dedication to implementing their draft taken the Morongo Band of Mission conservation.’’ According to the Agua Tribal HCP and resulting conservation Indians’ contributions to the Caliente Band of Cahuilla Indians, the efforts for Astragalus lentiginosus var. conservation of biological resources on Secretary’s decision to include or coachellae and its habitat as well as their lands, their continuing partnership exclude tribal lands from the critical other taxa and biological resources, their with the Service, as well as issues of habitat designation should be based on continuing partnership with the Service, tribal self-governance and government- the adequacy and value of the tribal/ and issues of tribal self-governance and to-government relations into Federal partnership, not on the formal government-to-government relations consideration when comparing the approval of the draft Tribal Habitat into consideration when comparing the benefits of including Tribal lands to the Conservation Plan. They state that this benefits of including Agua Caliente benefits of excluding those lands. Based position is supported by the Secretary’s Band of Cahuilla Indians lands to the on the results of this evaluation, the exclusion of Agua Caliente Band of benefits of excluding those lands. Based Secretary is exercising his discretion to Cahuilla Indians lands from the critical on the results of this evaluation, the exclude all Morongo Band of Mission

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Indians lands from this final revised Indians reservation lands from this final funds ongoing management and critical habitat designation (see revised critical habitat designation. biological monitoring and establishes an Exclusions Under Section 4(b)(2) of the We recognize and value our endowment to continue management Act—Tribal Lands section above). relationships with both tribes and will and monitoring in perpetuity. The Comment 13: The U.S. Bureau of continue to work cooperatively with commenter stated that the MSHCP has Indian Affairs (BIA) expressed their them to conserve federally listed species been and continues to be successful in support of comments submitted by Agua on their lands. conserving land to protect Astragalus Caliente Band of Cahuilla Indians and Comment 14: The BIA asserted that it lentiginosus var. coachellae and other Morongo Band of Mission Indians is justified and appropriate to species and summarized the number of regarding the proposed critical habitat automatically remove lands from a acres conserved within the sand for Astragalus lentiginosus var. critical habitat designation that are transport system by MSHCP partners coachellae and requested that Agua subsequently brought into Trust by a since 1996 and by the Coachella Valley Caliente Band of Cahuilla Indians and tribe upon incorporation into the Tribal Conservation Commission since the Morongo Band of Mission Indians lands management plan. MSHCP was permitted. According to the be excluded from the final critical Response to Comment 14: The commenter, areas within the sand habitat designation for the taxon. The revision of a designation of critical transport system are considered a BIA considers designation of critical habitat either by the inclusion or conservation priority for the Coachella habitat on Indian lands as an exclusion of any specific area is Valley Conservation Commission, infringement upon and taking of Indian required to be accomplished through a which administers the local assets by a fellow trustee (the Service). rulemaking process by which the implementation of the Coachella Valley They outlined a number of Federal revisions are proposed for public review MSHCP/NCCP. and comment, and then a final rule is policies and congressional actions The commenter asserted that any issued following consideration of all relevant to Indian tribes regarding the designation of critical habitat on land comments and best available scientific Endangered Species Act, which they under the jurisdiction of Coachella information. Revisions to critical habitat feel support their request that Agua Valley MSHCP/NCCP permittees is cannot be automatic. Caliente Band of Cahuilla Indians and unnecessary and counterproductive to Morongo Band of Mission Indians lands Comments From HCP Administrators the goal of implementing a be excluded. and Permittees comprehensive, landscape-level The BIA also asserted that Agua approach to conservation in the region. Caliente Band of Cahuilla Indians and Comment 15: One commenter stated The commenter stated that critical Morongo Band of Mission Indians lands opposition to the Service’s proposed habitat designations represent a species- should be excluded because designating critical habitat designation for by-species and project-by-project critical habitat on these lands would Astragalus lentiginosus var. coachellae implementation of the Act that fails to jeopardize partnerships between the on approximately 158 ac (64 ha) within provide the landscape-level Service and both tribes. According to Western Riverside County MSHCP conservation, with attendant the BIA, excluding Agua Caliente Band boundaries. The commenter provided of Cahuilla Indians and Morongo Band reasoning in support of their opposition. management and monitoring, that is of Mission Indians lands from the Response to Comment 15: The 158 ac necessary to preserve sensitive species critical habitat designation would allow (64 ha) to which the commenter refers and the natural systems upon which voluntary partnerships to continue, is not covered under the Western they depend. which they feel would have a long-term Riverside County MSHCP. The Service The commenter asserted that the benefit for Astragalus lentiginosus var. was in error when we stated in the Coachella Valley MSHCP/NCCP coachellae. proposed critical habitat rule that this stakeholders have demonstrated the Response to Comment 13: We area was covered under the Western depth of their commitment to the evaluated the benefits of exclusion of all Riverside County MSHCP; this area is success of the MSHCP and stated that reservation lands from this final revised actually Morongo Band of Mission the addition of another layer of critical habitat designation. Maintaining Indians land. We corrected this error in regulation through this critical habitat and fostering partnerships and good the Federal Register notice announcing designation after the stakeholders have working relationships with tribes are the availability of the draft Economic demonstrated their dedication to the benefits of exclusion and are supported Analysis for the proposed revised MSHCP would damage the Service’s by Secretarial Order 3206. Consistent critical habitat designation published on partnership with MSHCP stakeholders with Secretarial Order 3206 and May 16, 2012 (77 FR 28849), and we and create a disincentive for Executive Order 13175, we also believe explain the error in the Summary of participation in the MSHCP. tribal lands are better managed under Changes from Proposed Rule section This commenter’s recommendation tribal authorities, policies, and programs above. No lands covered under the that lands covered under the Coachella than through Federal regulation Western Riverside County MSHCP have Valley MSHCP/NCCP be excluded from wherever possible and practicable. We been proposed or designated as critical the critical habitat designation for found the benefits of excluding habitat for Astragalus lentiginosus var. Astragalus lentiginosus var. coachellae Morongo Band of Mission Indians lands coachellae. The commenter’s issue is was supported by a second commenter. and Agua Caliente Band of Cahuilla therefore moot. The second commenter also stated that Indians lands to be greater than the Comment 16: One commenter excluding these lands would not benefits of including these lands in the provided a description of the Coachella compromise the policies and programs critical habitat designation (see Valley MSHCP/NCCP and explained aimed at protecting and restoring the Exclusions Under Section 4(b)(2) of the how the Coachella Valley MSHCP/ taxon, and that there is no advantage Act—Tribal Lands section above for a NCCP is expected to add approximately either for the agencies, landowners, and detailed discussion). Therefore, the 175,000 ac to an existing 550,000 ac of citizens committed to the environmental Secretary is exercising his discretion to public and private conserved land to health of the Coachella Valley or for A. exclude Agua Caliente Band of Cahuilla create a reserve system of 725,000 ac, l. var. coachellae in including these Indians and Morongo Band of Mission and they explained how the MSHCP areas in the critical habitat designation.

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Additionally, the second commenter The fourth commenter stated that the infrastructure on lands covered by the stated that, as a Coachella Valley Coachella Valley Water District, another Coachella Valley MSHCP/NCCP. MSHCP/NCCP permittee, the Riverside permittee of the Coachella Valley The third commenter stated that these County Flood Control and Water MSHCP/NCCP, has provided a potential delays could jeopardize public Conservation District is subject to commitment to the success of the health and safety. This commenter applicable MSHCP provisions including MSHCP, including establishing stated that the inclusion of existing the requirement to contribute mitigation constructed habitat, restoring and flood control facilities within the final to assist in achieving the regional enhancing existing habitat, conserving critical habitat area would trigger the conservation objectives identified in the 7,000 ac of Coachella Valley Water section 7 consultation process for any MSHCP, which includes a number of District lands (including over 1,800 ac Riverside County Flood Control and specific regional objectives to ensure of its land within the Whitewater River Water Conservation District long-term conservation of Astragalus floodplain that provides habitat for maintenance, repair, replacement, and lentiginosus var. coachellae. The Astragalus lentiginosus var. coachellae) rehabilitation activities. The commenter commenter went on to state that and a $3.58 million contribution to an expressed concern that this may prevent Riverside County Flood Control and endowment fund for monitoring and or delay maintenance of these flood Water Conservation District projects adaptive management. This commenter control facilities and thereby pose a within the proposed revised critical also briefly described the permittees’ potential threat to public health and habitat areas are subject to a Joint responsibilities under the Coachella safety. Therefore, the commenter stated Project Review process required for Valley MSHCP/NCCP, stating that the that the existing Cabazon Channel, projects that are located within approach to conservation that the Chino Canyon Levee, Whitewater River Conservation Areas, and that these permittees have committed to under the Levee, Mission Creek Channel, and projects are also subject to review by the MSHCP has been vetted and approved Desert Hot Springs Channel Line E Service as described in the MSHCP. by the Service and California facilities should be excluded from the Compliance with the MSHCP by the Department of Fish and Game. The final revised critical habitat designation Riverside County Flood Control and commenter asserted that Coachella for Astragalus lentiginosus var. Water Conservation District and other Valley Water District’s commitment to coachellae. Coachella Valley MSHCP/NCCP the success of the Coachella Valley The fourth commenter asserted that permittees ensures that the species will MSHCP/NCCP is also demonstrated by this critical habitat designation is be conserved on a regional basis as their active participation in the unwarranted, redundant, and intended when the Service authorized development and implementation of the counterproductive considering the the final MSHCP, according to the MSHCP and their ongoing cooperation success they assert has already been achieved conserving critical habitat for commenter. with partners and wildlife agencies. Astragalus lentiginosus var. coachellae Two more commenters also supported The fourth commenter expressed through the Coachella Valley MSHCP/ the recommendation that lands covered concern that the proposed critical NCCP. by the Coachella Valley MSHCP/NCCP habitat designation puts in question the Response to Comment 16: We have should be excluded from the critical Service’s commitment to the Coachella considered the aforementioned habitat designation for Astragalus Valley MSHCP/NCCP objectives and commenters’ concerns. In exercising his lentiginosus var. coachellae. implementation, and that designating discretion to exclude areas from critical Both the third and fourth commenters critical habitat on lands covered under habitat under section 4(b)(2) of the Act, expressed concern with the proposed the Coachella Valley MSHCP/NCCP will the Secretary weighed the benefits of designation of critical habitat on lands jeopardize the ultimate success of the exclusion against the benefits of covered under the Coachella Valley MSHCP. inclusion. We did not exclude areas MSHCP/NCCP, particularly those lands Designating critical habitat on lands based on the existence of management owned and managed by the Riverside covered by the Coachella Valley plans or other conservation measures; County Flood Control and Water MSHCP/NCCP would create duplicative however, we acknowledge that the Conservation District and the Coachella and redundant regulatory efforts, existence of a plan may reduce the Valley Water District. The third according to both the third and fourth benefits of inclusion of an area in commenter’s issues included their belief commenters (this issue is discussed critical habitat to the extent the that designating critical habitat on lands further in Response to Comment 18 protections provided under the plan are covered under the Coachella Valley below). For this reason and those largely redundant with conservation MSHCP/NCCP will— outlined above, the third commenter benefits of the critical habitat • Provide negligible, if any, benefits requested that lands within the designation. Thus, in some cases, the to Astragalus lentiginosus var. Coachella Valley MSHCP/NCCP benefits of exclusion in the form of coachellae; boundaries be excluded from the final sustaining and encouraging partnerships • Negate any benefits to the MSHCP critical habitat designation for that result in on-the-ground permittees from their efforts to provide Astragalus lentiginosus var. coachellae, conservation of listed species may regional conservation for A. l. var. and the fourth commenter requested outweigh the benefits of inclusion. coachellae and invest in establishing a that the Service terminate efforts to Based on the discussion in the regional habitat-based long-term adopt a revised critical habitat Exclusions Under Section 4(b)(2) of the conservation program; and designation for A. l. var. coachellae. Act—Coachella Valley MSHCP/NCCP • Run counter to statements made in The third and fourth commenters also section above, the Secretary is the Implementing Agreement for the asserted that designating critical habitat exercising his discretion to exclude all Coachella Valley MSHCP/NCCP on lands covered by the Coachella lands covered by the Coachella Valley (commenter cited Section 14.11 of the Valley MSHCP/NCCP would create a MSHCP/NCCP from this final revised Coachella Valley MSHCP/NCCP duplicative and redundant regulatory critical habitat designation. Implementing Agreement and Section burden, which they suggest could delay Comment 17: One commenter 6.8 of the Coachella Valley MSHCP/ efficient and timely operation and asserted that because the City of Desert NCCP). maintenance of water and flood control Hot Springs is currently requiring all

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projects within Coachella Valley infrastructure on Coachella Valley Response to Comment 20: Throughout MSHCP/NCCP Conservation Areas to Water District lands within the plan the proposed and final revised critical undergo the Joint Project Review area. habitat rules, we use the term process, and is actively working to Response to Comment 18: We ‘‘unoccupied’’ to refer to areas that, to formally bring their entire city into the acknowledge that the BLM participates our knowledge, are not occupied by the MSHCP through a Major Amendment, in the management of certain target taxon, in this case Astragalus excluding all land under the jurisdiction Conservation Areas or portions of lentiginosus var. coachellae. We do not of the City of Desert Hot Springs from Conservation Areas within the reserve intend the term ‘‘unoccupied’’ to imply the critical habitat designation for system of the Coachella Valley MSHCP/ that an area is not occupied by Astragalus lentiginosus var. coachellae NCCP and provides conservation of manmade structures. It seems the is warranted. biological resources in accordance with commenter was referring to the entirety Response to Comment 17: The City of the California Desert Conservation Area of Unit 2 as being characterized as Desert Hot Springs did not submit Plan Amendment for the Coachella unoccupied, which is incorrect; only the comments on the proposed critical Valley. We appreciate and commend the fluvial sand transport areas (the habitat designation during either public efforts of the BLM to work with the Whitewater River channel) of Unit 2 are comment period and did not request Coachella Valley MSHCP/NCCP characterized as unoccupied. To our exclusion from this designation. We are permittees and to conserve federally knowledge, there are no wind energy proceeding with this designation based listed species on their lands. installations in the unoccupied fluvial on the current conditions and The Secretary has the discretion to sand transport areas of Unit 2. participants of the Coachella Valley exclude an area from critical habitat Comment 21: Five commenters MSHCP/NCCP in awareness and under section 4(b)(2) of the Act after expressed concern that designating consideration of changes in taking into consideration the economic critical habitat on lands occupied by participation of Desert Hot Springs. impact, the impact on national security, wind energy projects would conflict Comment 18: One commenter and any other relevant impact if he with Federal and California State asserted that many necessary public determines that the benefits of such policies aimed at promoting alternative infrastructure projects, including flood exclusion outweigh the benefits of energy by potentially introducing control and the regional transportation designating such area as critical habitat, unknown regulatory burdens and network, must involve Federal land to unless he determines that the exclusion restrictions on the operation of wind some degree, and virtually all of the would result in the extinction of the energy facilities. Federal land in the area in question is species concerned. Based on the record Of these five commenters, four also administered by BLM, whose 2002 BLM before us, the Secretary is not exercising stated that suitable Astragalus California Desert Conservation Area his discretion to exclude the BLM lands, lentiginosus var. coachellae habitat is Plan Amendment for the Coachella and we are designating these lands as found in abundance on wind energy Valley already requires BLM actions to critical habitat for Astragalus sites along with the aeolian and fluvial be consistent with the Coachella Valley lentiginosus var. coachellae. sand transport that occurs in these MSHCP/NCCP. According to the Comment 19: One commenter stated areas. All four commenters explained commenter, including Federal land in that Unit 3 of the proposed critical that wind- and water-borne sands are the critical habitat designation is habitat contains the existing Mission able to flow freely in between wind redundant and counterproductive to the Creek Channel and Unit 2 contains the turbines, creating suitable habitat for the conservation partnership that currently existing Chino Canyon and Whitewater taxon. Two of these commenters go on exists between BLM, State and Federal River Levees. According to the to assert that approximately 90 percent wildlife agencies, and local commenter, the channel and levees are of the area occupied by wind power jurisdictions. The commenter asserted existing manmade features and facilities is suitable for A. l. var. that Federal lands must, therefore, be structures that do not contain the coachellae and sand transport. One excluded from the critical habitat primary constituent element essential to commenter also asserted that wind designation. the conservation of Astragalus energy is a long-term land use that does This commenter’s recommendation lentiginosus var. coachellae. not disturb soils or destroy individual that Federal lands be excluded from the Response to Comment 19: The plants in the course of daily or yearly critical habitat designation for Secretary is exercising his discretion to operations. Astragalus lentiginosus var. coachellae exclude lands covered under the These four commenters also describe was supported by two other Coachella Valley MSHCP/NCCP from how measures in place to protect wind commenters. The second commenter this critical habitat designation under power facilities from vandalism also also asserted that excluding these lands section 4(b)(2) of the Act. Because provide protection for Astragalus would not compromise the policies and Riverside County Flood Control and lentiginosus var. coachellae (for programs aimed at protecting and Water Conservation District is a example, ‘‘Our wind project is restoring the taxon, and that there is no permittee of the Coachella Valley completely fenced off and patrolled advantage either for the agencies, MSHCP/NCCP, Mission Creek Channel against trespassing and illegal dumping. landowners, and citizens committed to and Chino Canyon and Whitewater This eliminates off-road vehicles, trash the environmental health of the River Levees have been excluded from dumping and illegal landscape disposal Coachella Valley or for A. l. var. this designation. from this habitat area.’’). coachellae in including these areas in For the above reasons, these five the critical habitat designation. The Comments Regarding Wind Energy commenters asserted that lands third commenter stated that designation Comment 20: One commenter stated containing wind energy facilities should of critical habitat on Federal land within that although Unit 2 of the proposed be excluded from the final critical the Coachella Valley MSHCP/NCCP critical habitat is characterized as habitat designation for Astragalus plan area would create an additional unoccupied in the proposed rule, it lentiginosus var. coachellae. Four of layer of regulation impacting efficient contains significant wind energy these commenters go on to recommend and timely operation and maintenance installations and potential solar energy the specific areas that should be of critical water and flood control installations. excluded: The disturbance footprint of

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existing roads, wind turbines, inside critical habitat boundaries shown exclusions from the final critical habitat foundations, transformers, pole lines, on the maps of this final rule have been designation. Although the policy was underground and overhead lines, excluded by text in the rule and are not developed in the context of listing meteorological towers, communication designated as critical habitat. Therefore, rather than designation of critical facilities, fences and gates, storage a Federal action involving these lands habitat, the commenter asserted that the yards, and electrical substations and will not trigger section 7 consultation criteria apply equally well to interconnects. with respect to critical habitat and the determining the benefits of any Response to Comment 21: The Service requirement of no adverse modification conservation plan in the context of appreciates any protections that may be unless the specific action may affect the considering exclusions. provided the taxon and its habitat on adjacent critical habitat. So although Response to Comment 23: Section wind energy facilities. some of the lands containing wind 4(b)(2) of the Act requires the Secretary The area the commenters referred to energy facilities have been designated as to designate critical habitat after taking in their comment, bounded by Interstate critical habitat for A. l. var. coachellae into consideration the economic 10 to the west and Indian Canyon Road (those lands not covered under the impacts, national security impacts, and to the east, has multiple landowners. Coachella Valley MSHCP/NCCP), those any other relevant impacts of specifying Some of these landowners are areas that are covered by pavement or any particular area as critical habitat. permittees of the Coachella Valley structures are not included in the An area may be excluded from critical MSHCP/NCCP, others, such as the BLM designation and are excluded by text. habitat if it is determined that the (a Federal agency), are not. The Because the areas in question are benefits of exclusion outweigh the Secretary has the discretion to exclude occupied by Astragalus lentiginosus var. benefits of designating a particular area an area from critical habitat under coachellae, and any project in these as critical habitat, unless the failure to section 4(b)(2) of the Act after taking areas with a Federal nexus would designate will result in the extinction of into consideration the economic impact, require consultation with the Service the species. The exclusions in this final the impact on national security, and any under section 7 of the Act to address rule are supported under section 4(b)(2) other relevant impact if he determines potential impacts to the taxon, the of the Act. After analyzing the benefits that the benefits of such exclusion economic analysis for the critical habitat of inclusion and exclusion of proposed outweigh the benefits of designating designation did not predict project critical habitat on lands covered by the such area as critical habitat, unless he modification costs to wind energy Coachella Valley MSHCP/NCCP and on determines that the exclusion would interests due to the designation of Agua Caliente Band of Cahuilla Indians result in the extinction of the species critical habitat, only administrative and Morongo Band of Mission Indians concerned. In exercising his discretion costs of adding adverse modification reservation lands, we determined that to exclude areas from critical habitat analyses to these future section 7 the benefits of exclusion outweigh the under section 4(b)(2) of the Act, the consultations. benefits of inclusion for all of these Secretary weighed the benefits of areas (see Exclusions Under Section Comments From Other Interested exclusion against the benefits of 4(b)(2) of the Act—Coachella Valley Parties inclusion, and is exercising his MSHCP/NCCP and Exclusions Under discretion to exclude all lands covered Comment 22: One commenter Section 4(b)(2) of the Act—Tribal Lands under the Coachella Valley MSHCP/ expressed strong support for our sections above). Service biologists NCCP from this final revised critical designation of critical habitat for continue to work with the permittees of habitat designation (see Response to Astragalus lentiginosus var. coachellae, the Coachella Valley MSHCP/NCCP, the Comment 16 and Exclusions Under in particular because of the documented Morongo Band of Mission Indians, and Section 4(b)(2) of the Act—Coachella population declines of A. l. var. the Agua Caliente Band of Cahuilla Valley MSHCP/NCCP section above for coachellae (some up to 77 percent Indians to ensure the conservation of more detailed discussion). Any lands according to the commenter) and the Astragalus lentiginosus var. coachellae covered under the Coachella Valley general lack of successful recruitment and its habitat. MSHCP/NCCP containing wind power (the commenter cited USFWS 2009). The PECE Policy outlines specific facilities are, therefore, excluded from This commenter went on to observe criteria by which conservation or this critical habitat designation. that the proposed critical habitat management actions and programs are Based on the record before us, the appears to include most of the extant evaluated for use in making listing Secretary is not exercising his discretion locations for Astragalus lentiginosus determinations under the Act. However, to exclude lands in the area in question var. coachellae and appears to include the PECE Policy explicitly states that the that are not covered by the Coachella the sand transport corridors, sand Policy is not to be used for evaluating Valley MSHCP/NCCP, such as BLM formations, and alluvial areas that conservation or management actions for lands, and we are designating these remain viable in the Coachella Valley critical habitat designations. More lands as critical habitat for Astragalus area, and that these areas are essential appropriately, with regard to critical lentiginosus var. coachellae. to maintaining the unique habitat upon habitat, these actions and programs However, when determining critical which A. l. var. coachellae depends. should be considered under section habitat boundaries within this final rule, Response to Comment 22: We 4(b)(2) of the Act, and, if the Secretary despite our efforts to avoid including appreciate the commenter’s support of wants to exercise his discretion to developed areas such as lands covered our proposed designation. exclude an area from a critical habitat by buildings, pavement, and other Comment 23: One commenter stated designation, evaluated through the structures because such lands lack the that none of the areas proposed for balancing analysis under section 4(b)(2) physical or biological features for critical habitat should be considered for of the Act to determine if the benefits of Astragalus lentiginosus var. coachellae, exclusion from the final designation. excluding the specific areas covered by the scale of the maps we prepared under This commenter also strongly them from critical habitat outweigh the the parameters for publication within recommended we utilize the Service’s benefits of including them in the the Code of Federal Regulations may not ‘‘policy for evaluation of conservation designation. reflect the exclusion of such developed efforts when making listing decisions’’ Comment 24: One commenter urged lands. Any such lands inadvertently left (PECE) (68 FR 15100) when considering us to determine whether the various

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conservation and management plans in under Section 4(b)(2) of the Act— numerous plants have been documented the Coachella Valley manage for Coachella Valley MSHCP/NCCP section to occur between Units 2, 3, and 4 recovery of Astragalus lentiginosus var. above for a detailed discussion. The between Rancho Mirage and Thousand coachellae. The commenter expressed Service views the partnerships we share Palms and in Indian Wells near concern that many habitat conservation with permittees of the HCP and local Highway 111, and elsewhere. plans allow what the commenter sees as landowners and managers as having Response to Comment 26: The substantial destruction of habitat such greater potential to provide for the commenter did not define ‘‘robust that even with mitigation, they result in recovery of the taxon than designation identification.’’ We do indicate what a net loss of habitat and thus do not of critical habitat in areas covered under areas surrounding the Coachella Valley ensure recovery of covered species. the HCP, which could damage these contribute sand required to sustain The commenter goes on to state that: partnerships and thus reduce potential Astragalus lentiginosus var. coachellae ‘‘In invalidating a 1986 regulation that for recovery. habitat in both the proposed revised collapsed the definition of adverse Comment 25: One commenter critical habitat rule and this final modification with jeopardy, the Ninth Circuit requested that we provide evidence that revised rule, and we believe that more concluded that the regulation ‘finds that designating critical habitat in addition detailed discussion of these areas is adverse modification to critical habitat can to any HCPs or other management plans outside of the scope of these rules. In only occur when there is so much critical would do any harm. The commenter both the proposed and final revised habitat lost that a species’ very survival is asserts that real evidence of harm from rules, we have outlined our methods threatened,’ which would ‘drastically narrow critical habitat designation, such as a the scope of protection commanded by and reasoning for not proposing all Congress under the ESA.’ (Gifford Pinchot landowner abandoning a plan or even areas occupied by the taxon (see Criteria Task Force v. United States Fish and Wildlife threatening to take such action, is Used To Identify Critical Habitat section Service, 378 F.3d 1059 (9th Cir. 2004). This lacking, and that the Service does not above). and other court decisions demonstrate that have or require such data to support this Comment 27: One commenter asked critical habitat must receive a greater degree conclusion. that we consider all sand source areas of protection than is typically provided by Response to Comment 25: We have identified in the 2004 critical habitat HCPs or other management plans. Given this received comment letters from some of proposal as part of this critical habitat disparity, we ask that when determining the Coachella Valley MSHCP/NCCP designation or provide a justification for whether to exclude essential habitat based on permittees, the Coachella Valley an HCP, FWS makes a determination as to why they are not included. Conservation Commission, the Agua whether the HCP will ensure recovery of the Response to Comment 27: We Caliente Band of Cahuilla Indians, the species, which for [Astragalus lentiginosus provided an explanation of the methods Morongo Band of Mission Indians, and var. coachellae*], which is limited by habitat, and reasoning behind our decision not would mean increasing the amount of habitat the Bureau of Indian Affairs in response over time.’’ to the proposed rule to designate critical to propose the hills and mountains *(The commenter refers to ‘flycatcher’ habitat for Astragalus lentiginosus var. where sediment is generated via water here; we presume the commenter intended to coachellae, all stating that the erosion (fluvial sand source areas) in refer to Astragalus lentiginosus var. partnerships that we share with these Units 1, 2, and 3 as critical habitat for coachellae.) entities will be damaged by designation Astragalus lentiginosus var. coachellae Response to Comment 24: We of critical habitat on tribal lands or in the Criteria Used To Identify Critical appreciate the commenter’s concerns lands covered under the Coachella Habitat section above, as well as in our regarding the long-term recovery of Valley MSHCP/NCCP. We consistently response to peer reviewer comment Astragalus lentiginosus var. coachellae. receive similar comments from HCP number 3. However, the Secretary is vested with stakeholders and other partners in Comment 28: One commenter broad discretion under section 4(b)(2) in response to rules proposing critical expressed concern that, while the Agua evaluating whether the benefits of habitat designation on lands covered by Caliente Band of Cahuilla Indians are excluding an area from critical habitat HCPs and other areas where continuing to implement the draft HCP, designation outweigh the benefits of conservation of biological resources is there is no information on the adequacy designating the area, so long as carried out in conjunction with the of the draft HCP or the permanence of exclusion of an area will not result in Service via partnerships. We believe the Tribe’s commitment to maintain its extinction of a species. We consider a these communications are sufficient provisions. number of factors in a section 4(b)(2) evidence of the potential to damage The commenter also stated that analysis, including (but not limited to) partnerships and diminish conservation because the Morongo Band of Mission the protections afforded for a species efforts of partners by adding a real or Indians has not completed a and its essential habitat under an HCP, perceived regulatory burden of critical management plan, there are no assured whether there are conservation habitat designation. protections or management actions in partnerships that would be encouraged Comment 26: One commenter is place, and the partnerships’ by designation of, or exclusion from, concerned that we did not include all of effectiveness is questionable. critical habitat, particularly partnerships the extant locations where Astragalus The commenter goes on to assert that that include voluntary protections for lentiginosus var. coachellae is exclusion of these Tribal lands from this listed plant species in an HCP or other documented to occur and a robust critical habitat designation would set a management plan, and the economic, identification of the sand sources precedent that is unfair to Tribes that regulatory, and educational impacts of required to sustain the taxon’s habitat actually have plans in place that are including a particular area as critical over time. The commenter requested either HCPs or functional equivalents, habitat. Please see the Exclusions that we consider all of the areas and incentivize inaction rather than section for further discussion. identified in the five-year review for A. encouraging Tribes to actually work We found the benefits of excluding l. var. coachellae to support the taxon or with the Service on tangible lands that are covered under the provide a justification for why they conservation benefits. Balancing in Coachella Valley MSHCP/NCCP to be were not included. favor of exclusion of Tribal lands from greater than the benefits of including In particular, the commenter asked critical habitat designations appears to these lands. Please see the Exclusions that we consider adding areas where the commenter to be politically

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motivated rather than based on on-the- and are, therefore, subject to the Comment 32: One commenter stated ground facts. provisions of section 7 of the Act. We that in the event that the Riverside Response to Comment 28: In have not analyzed the potential for County Flood Control and Water accordance with the Secretarial Order interference of nonpermittee entities Conservation District flood control 3206, ‘‘American Indian Tribal Rights, with the implementation of the systems are not excluded from the Federal-Tribal Trust Responsibilities, Coachella Valley MSHCP/NCCP because critical habitat designation from and the Endangered Species Act’’ (June we believe such issues, if they arise, can Astragalus lentiginosus var. coachellae, 5, 1997); the President’s memorandum be anticipated and managed by the Service’s economic analysis of the of April 29, 1994, ‘‘Government-to- communicating and working with our revised critical habitat designation for Government Relations with Native partners in the Coachella Valley area. A. l. var. coachellae will need to American Tribal Governments’’ (59 FR Comment 30: One commenter stated evaluate the potential direct and 22951); Executive Order 13175; and the that permittees of the Coachella Valley indirect adverse impacts to the existing relevant provision of the Departmental MSHCP/NCCP should be relieved of Cabazon Channel, Chino Canyon Levee, Manual of the Department of the Interior critical habitat obligations as long as the Whitewater River Levee, Mission Creek (512 DM 2), we believe that fish, plan is properly functioning, but that Channel, and Desert Hot Springs wildlife, and other natural resources on nonpermittees within the plan area Channel Line E facilities and tribal lands are better managed under should obtain no such benefits. The surrounding areas that include but are tribal authorities, policies, and programs commenter asserted that giving not limited to: (1) Increased costs than through Federal regulation nonparticipants a ‘‘free ride’’ is an associated with species surveys and wherever possible and practicable. incentive not to participate in large- section 7 consultation process; (2) Based on this philosophy, we believe scale HCP/NCCPs. increased risk that the flood control that, in most cases, designation of tribal Response to Comment 30: To our systems may fail to provide the full reservation lands as critical habitat knowledge, we have not excluded any measure of protection to the public as a provides very little additional benefit to nontribal lands not explicitly covered result of lengthy section 7 consultation threatened and endangered species. by the Coachella Valley MSHCP/NCCP process and implementation of any Conversely, such designation is often from this critical habitat designation. mitigation requirements (e.g., viewed by tribes as unwarranted and an Comments Regarding the Economic avoidance, minimization, onsite/offsite unwanted intrusion into tribal self- Analysis compensatory, etc.) imposed through governance, thus compromising the that process; (3) increased costs (e.g., government-to-government relationship Comment 31: One peer reviewer increased flood insurance rates, etc.) essential to achieving our mutual goal of asserted that the economic impact imposed on the local community managing for healthy ecosystems upon assessment under section 4(b)(2) of the through the National Flood Insurance which the viability of threatened and Act must take into account the large Program as a result of not meeting endangered species populations decline in land values that has occurred FEMA requirements; (4) potential depend. since 2005, especially in desert regions damages to the communities that may The exclusion of Agua Caliente Band of California. result if critical maintenance activities of Cahuilla Indians and Morongo Band Response to Comment 31: are delayed; (5) additional costs of Mission Indians reservation lands is Presumably, the peer reviewer associated with duplicate mitigation likewise based on the importance of the anticipated that the DEA would estimate requirements; (6) potential conflicts government-to-government relationship the costs of the designation in terms of between mitigation requirements and with these Tribes, our conservation lost development opportunities, the associated existing flood control partnership with the Tribes, and their measured in terms of reduced land facilities; (7) the costs associated with current management of tribal lands, as values. In fact, the analysis takes a amending the Coachella Valley MSHCP/ described in Martin (2011, pp. 1–2), slightly different approach. As NCCP; and (8) the consequential costs if Park (2011, pp. 1–11) and ACBCI described in Section 4.2 of the FEA, the final rule negates the successful (2010b). incremental project modifications implementation of the Coachella Valley Please see the Exclusions Under resulting from the designation are MSHCP/NCCP. Section 4(b)(2) of the Act—Tribal Lands unlikely in most areas, with the Response to Comment 32: The section of this final rule for additional exception of unoccupied portions of Secretary is exercising his discretion to discussion. Unit 3 in the City of Desert Hot Springs. exclude all lands covered under the Comment 29: One commenter Because the City does not yet have an Coachella Valley MSHCP/NCCP, expressed concern that we have not approved HCP, we assume that, if including Riverside County Flood considered whether nonparticipating development occurs in this area and a Control and Water Conservation District agencies or special districts have the Federal nexus exists, project lands, from this critical habitat potential to interfere with the Coachella modification costs would be attributable designation (see Exclusions Under Valley MSHCP/NCCP permittees’ ability to the designation. As a proxy for the Section 4(b)(2) of the Act—Coachella to achieve the HCP’s conservation goals cost of such project modifications, we Valley MSHCP/NCCP section above). and objectives, and that we have not use the per-housing-unit mitigation fee Comment 33: Four commenters provided an analysis of potential threats currently required under the Coachella expressed concern regarding potential from noncovered activities to achieving Valley MSHCP/NCCP. This value, as of economic impacts the designation of the conservation goals of the Coachella 2012, is $1,254 per unit in low-density critical habitat could have on wind Valley MSHCP/NCCP. The commenter residential developments and $5,600 energy firms located within the critical feels that a legitimate balancing test per acre of commercial and industrial habitat designation. must take these factors into account. development. The MSHCP/NCCP Response to Comment 33: Because the Response to Comment 29: Lands that mitigation fees, obtained directly from areas in question are occupied by are not under the jurisdiction of the the Coachella Valley Association of Astragalus lentiginosus var. coachellae permittees of the Coachella Valley Governments, represent the best and any project in these areas with a MSHCP/NCCP have not been excluded available information regarding the unit Federal nexus would require from this critical habitat designation cost of efforts to protect the plant. consultation with the Service under

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section 7 of the Act to address potential consultation cost model is based on data consultation is still required for impacts to the taxon, the economic gathered from three Service field offices activities with a Federal nexus that are analysis for the critical habitat (including a review of consultation not covered under the Coachella Valley designation did not predict project records and interviews with field office MSHCP/NCCP and may affect listed modification costs to wind energy staff), telephone interviews with action species or critical habitat, and, as a interests due to the designation of agency staff (for example, BLM, Forest result, the potential for incremental critical habitat, only the administrative Service, U.S. Army Corps), and impacts will still exist after the City of costs of adding adverse modification telephone interviews with private Desert Hot Springs becomes a permittee. analyses to these future section 7 consultants who perform work in Comment 39: One commenter states consultations. We, therefore, conclude support of permittees. In the case of that the low estimate of administrative that potential economic impacts to these Service and Federal agency contacts, we impacts, as described on Page 4–2 of the wind energy interests will be small. determined the typical level of effort DEA, is not clearly attributed. Comment 34: One commenter stated required to complete several different Response to Comment 39: Section 4.8 that because the costs estimated in the types of consultations (hours or days of of the DEA describes in detail the DEA are low, there is no basis for time), as well as the typical General methodology used to estimate economic exclusion of any of the areas Schedule (GS) level of the staff member incremental administrative costs. The proposed as critical habitat for performing this work. In the case of methodology involves projecting the Astragalus lentiginosus var. coachellae. private consultants, we interviewed consultation history from the past 18 Response to Comment 34: Based on representatives of firms in California years forward. In particular, Exhibit 4– the information presented in the and New England to determine the 5 presents the projected number of Economic Analysis, the Secretary is not typical cost charged to clients for these consultations by economic activity and exercising his discretion to exclude any efforts (for example, biological survey, critical habitat unit. This exhibit notes areas from this designation based on preparation of materials to support a which projected consultations—only economic impacts (see Exclusions Based Biological Assessment). The model is those occurring on the Agua Caliente on Economic Impacts section above for periodically updated with new Reservation—are excluded from the low more detailed discussion). information received in the course of estimate. All other consultations are Comment 35: One commenter data collection efforts supporting included in both the low and high expressed appreciation for the Service’s economic analyses and public comment estimates. clear separation of postdesignation on more recent critical habitat rules. In Comment 40: According to a comment baseline costs from the incremental addition, the GS rates are updated submitted by the Agua Caliente Band of future costs of designation in the DEA. annually. Cahuilla Indians, the DEA incorrectly Response to Comment 35: We thank Comment 38: One commenter states identifies the Tribal Habitat the commenter for their review and that incremental costs associated with Conservation Plan (THCP) as a draft comments. the City of Desert Hot Springs are highly plan. Comment 36: A comment provided on unlikely. This commenter states that the DEA states that because the majority costs are estimated for the development Response to Comment 40: The Tribal of the proposed critical habitat falls of lands located within the floodplain, Habitat Conservation Plan of the Agua within the plan area of the Coachella which the City is unlikely to develop. Caliente Band of Cahuilla Indians is Valley MSHCP/NCCP, section 7 Additionally, the commenter suggests considered a ‘‘draft’’ plan because the consultation costs should be that consultation may be unlikely Service has not issued an incidental significantly streamlined. The comment because the City of Desert Hot Springs take permit associated with this suggests that, as a result, the DEA will soon be a permittee of the document under section 10(a)(1)(B) of overestimates administrative impacts Coachella Valley MSHCP/NCCP. the Endangered Species Act. Text has from the proposed revised designation. Therefore, the commenter asserts that been added to the Final Economic Response to Comment 36: The DEA future incremental costs are inflated. Analysis (FEA) to clarify this assertion. relies on the best available information Response to Comment 38: The DEA Additionally, the FEA notes that the on administrative costs, compiled from accounts for the uncertainty associated Tribe considers this plan a Tribal- interviews with Service staff, action with the potential for development approved, final document and agency staff, and private consultants. within the floodplain by excluding implements it as such for land-use Although consultation costs may be these costs from the low estimate and planning on all Reservation lands, streamlined for projects covered by the including them in the high estimate. despite having withdrawn the request Coachella Valley MSHCP/NCCP that Our interview with City officials for a section 10(a)(1)(B) incidental take have a Federal nexus, each Federal suggested that they would prefer to permit. action still requires consultation with avoid development within the Comment 41: According to a comment the Service if the action may affect floodplain. However, because the City submitted by the Agua Caliente Band of listed species or critical habitat. has no official restrictions preventing Cahuilla Indians, the DEA incorrectly Therefore, to avoid underestimating the such development, such development is states the size of the Agua Caliente potential impacts of the designation, the possible. Development projections for Indian Reservation. DEA assumes the level of effort required this area are based on Southern Response to Comment 41: The acreage for these consultations will be similar to California Association of Governments reported in the DEA is taken from the effort associated with consultations growth forecasts. Until the City of Desert following reference: Tiller, Veronica E. undertaken for activities not covered by Hot Springs becomes a permittee of the Velarde. ‘‘Tiller’s Guide to Indian an HCP. Coachella Valley MSHCP/NCCP via a Country: Economic Profiles of American Comment 37: One commenter asserts major amendment, these costs are Indian Reservations.’’ Bow Arrow that the DEA fails to provide supporting considered incremental to the baseline. Publishing Company, 2005 (364). Based data to justify the cost of section 7 Because this amendment had not yet on updated information provided by the consultations. been finalized as of the time of the Tribe in this comment, the FEA corrects Response to Comment 37: As economic analysis, incremental costs the acreage of the Reservation to 31,500 described in Exhibit 2–2 of the DEA, the are estimated. In addition, section 7 acres.

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Comment 42: One comment Similarly, quantifying benefits regulatory system to promote submitted by the Agua Caliente Band of associated with improved water quality predictability, to reduce uncertainty, Cahuilla Indians states that in paragraph would require information regarding and to use the best, most innovative, 160, the DEA incorrectly identifies the baseline water quality, hydrologic and and least burdensome tools for Tribe as the party that engaged in chemical modeling to estimate changes achieving regulatory ends. The consultation with the Service for three in water quality, and risk analysis to executive order directs agencies to previous projects. determine avoided human health risk consider regulatory approaches that Response to Comment 42: The text based on changes to water quality. reduce burdens and maintain flexibility has been revised in the FEA to correctly These types of analyses are beyond the and freedom of choice for the public indicate that the Bureau of Indian scope of the DEA. As a result, benefits where these approaches are relevant, Affairs, and not the Tribe, engaged associated with the designation of feasible, and consistent with regulatory directly in consultation with the Service critical habitat are discussed objectives. E.O. 13563 emphasizes for past projects occurring on Agua qualitatively. further that regulations must be based Caliente Reservation land. Comment 44: One commenter on the best available science and that Comment 43: One commenter states expresses concern that the designation the rulemaking process must allow for that the DEA fails to include of critical habitat may impact routine public participation and an open consideration of benefits resulting from maintenance and operations of the exchange of ideas. We have developed the designation of critical habitat. In Colorado River Aqueduct on this rule in a manner consistent with particular, this commenter suggests that Metropolitan Water District of Southern these requirements. the DEA fails to quantify ancillary California (MWD) lands. These activities benefits including the protection and Regulatory Flexibility Act (5 U.S.C. 601 may include aqueduct inspection and et seq.) improvement of water quality; cleaning, replacement and rebuilding of preservation of natural habitat to benefit infrastructure, and maintenance of Under the Regulatory Flexibility Act other species; and prevention of patrol and access roads. Additionally, (RFA; 5 U.S.C. 601 et seq.), as amended development in flood-prone areas, the comment mentions an upcoming by the Small Business Regulatory despite existing economic literature mine pit reclamation project on MWD Enforcement Fairness Act (SBREFA) of monetizing these benefits. This lands that may be affected by the 1996 (5 U.S.C 801 et seq.), whenever an commenter suggests that these benefits designation of critical habitat. agency must publish a notice of should be assessed and quantified Response to Comment 44: As of the rulemaking for any proposed or final where possible or otherwise included in time of publication of the DEA, we were rule, it must prepare and make available a detailed qualitative analysis. unable to confirm with MWD the types for public comment a regulatory Response to Comment 43: The of activities ongoing or planned for flexibility analysis that describes the primary purpose of this critical habitat these lands. However, in information effects of the rule on small entities designation is to support the subsequently provided, MWD states that (small businesses, small organizations, conservation of Astragalus lentiginosus routine maintenance and operations of and small government jurisdictions). var. coachellae. As described in Chapter the Colorado River Aqueduct do not However, no regulatory flexibility 5 of the DEA, quantification and require the involvement of a Federal analysis is required if the head of an monetization of this conservation agency. As a result, activities associated agency certifies the rule will not have a benefit requires information on the significant economic impact on a with the Colorado River Aqueduct are incremental change in the probability of substantial number of small entities. unlikely to have a nexus for section 7 conservation resulting from the The SBREFA amended the RFA to consultation. Incremental impacts are designation. Such information is not require Federal agencies to provide a therefore not anticipated to result from available, and, as a result, monetization certification statement of the factual these activities. The mine pit of the primary benefit of critical habitat basis for certifying that the rule will not reclamation project may have a Federal designation is not possible. have a significant economic impact on nexus for consultation through the U.S. Other ancillary benefits of the a substantial number of small entities. Army Corps of Engineers Clean Water designation may include: Increased In this final rule, we are certifying that Act section 404 permitting process. The residential property values adjacent to the critical habitat designation for preserved habitat; increased recreational FEA has been revised to incorporate Astragalus lentiginosus var. coachellae opportunities; preservation of habitat for new information on MWD activities in will not have a significant economic other species; and improvements in these areas, as provided in the public impact on a substantial number of small water quality, among others. Although comment and the information received entities. The following discussion economic literature does exist that subsequent to the submission of the explains our rationale. monetizes similar benefits, these studies DEA. Administrative impacts are According to the Small Business are necessarily site-specific. For estimated for these MWD activities in Administration, small entities include example, using benefits transfer the FEA. small organizations, such as techniques to estimate changes in Required Determinations independent nonprofit organizations; residential property value based on the small governmental jurisdictions, existing economic literature would Regulatory Planning and Review including school boards and city and require knowledge of the characteristics (Executive Orders 12866 and 13563) town governments that serve fewer than of the specific lands preserved as a Executive Order 12866 provides that 50,000 residents; as well as small result of the designation of critical the Office of Information and Regulatory businesses. Small businesses include habitat, including proximity to Affairs (OIRA) will review all significant manufacturing and mining concerns residential properties and the amount of rules. The Office of Information and with fewer than 500 employees, existing open space in the area. Without Regulatory Affairs has determined that wholesale trade entities with fewer than knowing where lands will be preserved this rule is not significant. 100 employees, retail and service (for example, through mitigation fees) as Executive Order 13563 reaffirms the businesses with less than $5 million in a result of this designation, it is principles of E.O. 12866 while calling annual sales, general and heavy impossible to estimate such benefits. for improvements in the nation’s construction businesses with less than

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$27.5 million in annual business, In our final economic analysis of the the Service might consult on Astragalus special trade contractors doing less than critical habitat designation, we lentiginosus var. coachellae for water $11.5 million in annual business, and evaluated the potential economic effects management and use, transportation, agricultural businesses with annual on small business entities resulting from mining, energy development, or Tribal sales less than $750,000. To determine conservation actions related to the activities meet the definitions of small if potential economic impacts on these listing of Astragalus lentiginosus var. as defined by the Small Business small entities are significant, we coachellae and the designation of Administration (SBA) (IEc 2012, p. A– consider the types of activities that critical habitat. The analysis is based on 4–A–5); therefore, impacts to small might trigger regulatory impacts under the estimated impacts associated with governmental entities due to this rule, as well as the types of project the rulemaking as described in Chapters transportation and habitat management modifications that may result. In 1 through 4 and Appendix A of the activities are not anticipated. general, the term ‘‘significant economic analysis and evaluates the potential for In summary, we considered whether impact’’ is meant to apply to a typical economic impacts related to: (1) this designation would result in a small business firm’s business Residential, commercial, and industrial significant economic effect on a operations. development; (2) water management substantial number of small entities. To determine if the rule could and use; (3) transportation activities; (4) Based on the above reasoning and significantly affect a substantial number energy development; (5) sand and gravel currently available information, we of small entities, we consider the mining; and (6) Tribal activities. concluded that this rule would not number of small entities affected within Estimated incremental impacts of this result in a significant economic impact particular types of economic activities critical habitat designation consist on a substantial number of small (e.g., residential, commercial, and primarily of additional administrative entities. Therefore, we are certifying that industrial development; water cost of considering adverse modification the designation of critical habitat for management and use; transportation during section 7 consultation and Astragalus lentiginosus var. coachellae activities; energy development; sand incremental project modification costs will not have a significant economic and gravel mining; and Tribal resulting from activities not covered impact on a substantial number of small activities). We apply the ‘‘substantial under the Coachella Valley MSHCP/ entities, and a regulatory flexibility number’’ test individually to each NCCP. The Service and the action analysis is not required. industry to determine if certification is agency are the only entities with direct compliance costs associated with this Energy Supply, Distribution, or Use— appropriate. However, the SBREFA does critical habitat designation, although Executive Order 13211 not explicitly define ‘‘substantial small entities may participate in section Executive Order 13211 (Actions number’’ or ‘‘significant economic 7 consultation as a third party. It is, Concerning Regulations That impact.’’ Consequently, to assess therefore, possible that the small entities Significantly Affect Energy Supply, whether a ‘‘substantial number’’ of may spend additional time considering Distribution, or Use) requires agencies small entities is affected by this critical habitat during section 7 to prepare Statements of Energy Effects designation, this analysis considers the consultation for Astragalus lentiginosus when undertaking certain actions. OMB relative number of small entities likely var. coachellae. The FEA indicates that has provided guidance for to be impacted in an area. In some the incremental impacts potentially implementing this Executive Order that circumstances, especially with critical incurred by small entities are limited to outlines nine outcomes that may habitat designations of limited extent, development activities. constitute ‘‘a significant adverse effect’’ we may aggregate across all industries The FEA estimates annualized project when compared to not taking the and consider whether the total number modification costs of approximately regulatory action under consideration. of small entities affected is substantial. $52,000 in Unit 3, and annualized third The economic analysis finds that In estimating the number of small party administrative costs ranging from none of these criteria are relevant to this entities potentially affected, we also $156 to $263, depending on whether a analysis. Thus, based on information in consider whether their activities have consultation is formal or informal and the economic analysis, energy-related any Federal involvement. whether the project location is impacts associated with Astragalus Designation of critical habitat only considered occupied or unoccupied, lentiginosus var. coachellae affects activities authorized, funded, or distributed across all four units. Because conservation activities within critical carried out by Federal agencies. Some information on the number of projects habitat are not expected. As such, the activities are unlikely to have any or developers likely to be affected is not designation of critical habitat is not Federal involvement and so will not be available, the FEA assumes that a single expected to significantly affect energy affected by critical habitat designation. developer bears all costs associated with supplies, distribution, or use. Therefore, In areas where the species is present, growth in proposed revised critical this action is not a significant energy Federal agencies already are required to habitat. Under this assumption, $52,260 action, and no Statement of Energy consult with us under section 7 of the in incremental costs would accrue to Effects is required. Act on activities they authorize, fund, or one developer per year. Assuming the carry out that may affect Astragalus average small entity has annual Unfunded Mandates Reform Act (2 lentiginosus var. coachellae. Federal revenues of approximately $5.1 million, U.S.C. 1501 et seq.) agencies also must consult with us if this annualized impact represents In accordance with the Unfunded their activities may affect critical approximately one percent of annual Mandates Reform Act (2 U.S.C. 1501 et habitat. Designation of critical habitat, revenues. The assumption that all costs seq.), we make the following findings: therefore, could result in an additional accrue to one developer likely overstates (1) This rule will not produce a economic impact on small entities due the impact significantly; thus, we Federal mandate. In general, a Federal to the requirement to reinitiate estimate incremental impacts to small mandate is a provision in legislation, consultation for ongoing Federal developers of less than one percent of statute, or regulation that would impose activities (see Application of the annual revenues. an enforceable duty upon State, local, or ‘‘Adverse Modification Standard’’ The FEA also concludes that none of tribal governments, or the private sector, section). the governmental entities with which and includes both ‘‘Federal

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intergovernmental mandates’’ and small governments because it would not designation of critical habitat in areas ‘‘Federal private sector mandates.’’ produce a Federal mandate of $100 currently occupied by Astragalus These terms are defined in 2 U.S.C. million or greater in any year; that is, it lentiginosus var. coachellae may impose 658(5)–(7). ‘‘Federal intergovernmental is not a ‘‘significant regulatory action’’ nominal additional regulatory mandate’’ includes a regulation that under the Unfunded Mandates Reform restrictions to those currently in place ‘‘would impose an enforceable duty Act. The FEA concludes incremental and, therefore, is expected to have little upon State, local, or tribal governments’’ impacts may occur due to incremental impact on State and local with two exceptions. It excludes ‘‘a administrative costs of section 7 governments and their activities. The condition of Federal assistance.’’ It also consultations for development, designation may have some benefit to excludes ‘‘a duty arising from transportation, and flood control these governments in that the areas that participation in a voluntary Federal projects activities; however, these are contain the physical or biological program,’’ unless the regulation ‘‘relates not expected to significantly affect small features essential to the conservation of to a then-existing Federal program governments. Incremental impacts the species are more clearly defined, under which $500,000,000 or more is stemming from various species and the elements of the features of the provided annually to State, local, and conservation and development control habitat necessary to the conservation of tribal governments under entitlement activities are expected to be borne by the species are specifically identified. authority,’’ if the provision would the Federal Government, State agencies, This information does not alter where ‘‘increase the stringency of conditions of local water and flood control districts, and what federally sponsored activities assistance’’ or ‘‘place caps upon, or and wind energy and mining companies may occur. However, it may assist local otherwise decrease, the Federal that are not considered small governments in long-range planning Government’s responsibility to provide governments. Consequently, we do not (rather than having them wait for case- funding,’’ and the State, local, or tribal believe that the critical habitat by-case section 7 consultations to governments ‘‘lack authority’’ to adjust designation would significantly or occur). accordingly. At the time of enactment, uniquely affect small government Where State and local governments these entitlement programs were: entities. As such, a Small Government require approval or authorization from a Medicaid; Aid to Families with Agency Plan is not required. Federal agency for actions that may Dependent Children work programs; affect critical habitat, consultation Takings—Executive Order 12630 Child Nutrition; Food Stamps; Social under section 7(a)(2) would be required. Services Block Grants; Vocational In accordance with E.O. 12630 While non-Federal entities that receive Rehabilitation State Grants; Foster Care, (‘‘Government Actions and Interference Federal funding, assistance, or permits, Adoption Assistance, and Independent with Constitutionally Protected Private or that otherwise require approval or Living; Family Support Welfare Property Rights’’), we analyzed the authorization from a Federal agency for Services; and Child Support potential takings implications of an action, may be indirectly impacted Enforcement. ‘‘Federal private sector designating critical habitat for by the designation of critical habitat, the mandate’’ includes a regulation that Astragalus lentiginosus var. coachellae legally binding duty to avoid ‘‘would impose an enforceable duty in a takings implications assessment. As destruction or adverse modification of upon the private sector, except (i) a discussed above, the designation of critical habitat rests squarely on the condition of Federal assistance or (ii) a critical habitat affects only Federal Federal agency. duty arising from participation in a actions. Although private parties that Civil Justice Reform—Executive Order voluntary Federal program.’’ receive Federal funding, assistance, or 12988 The designation of critical habitat require approval or authorization from a does not impose a legally binding duty Federal agency for an action may be In accordance with Executive Order on non-Federal Government entities or indirectly impacted by the designation 12988 (Civil Justice Reform), the Office private parties. Under the Act, the only of critical habitat, the legally binding of the Solicitor has determined that the regulatory effect is that Federal agencies duty to avoid destruction or adverse rule does not unduly burden the judicial must ensure that their actions do not modification of critical habitat rests system and that it meets the applicable destroy or adversely modify critical squarely on the Federal agency. The standards set forth in sections 3(a) and habitat under section 7. While non- takings implications assessment 3(b)(2) of the Order. We are designating Federal entities that receive Federal concludes that this designation of critical habitat in accordance with the funding, assistance, or permits, or that critical habitat for Astragalus provisions of the Act. This final rule otherwise require approval or lentiginosus var. coachellae does not identifies the elements of physical or authorization from a Federal agency for pose significant takings implications for biological features essential to the an action, may be indirectly impacted lands within or affected by the conservation of the Astragalus by the designation of critical habitat, the designation. lentiginosus var. coachellae within the legally binding duty to avoid designated areas to assist the public in Federalism—Executive Order 13132 destruction or adverse modification of understanding the habitat needs of the critical habitat rests squarely on the In accordance with Executive Order species. The designated areas of critical Federal agency. Furthermore, to the 13132 (Federalism), this rule does not habitat are presented on maps, and the extent that non-Federal entities are have significant Federalism effects. A rule provides several options for the indirectly impacted because they federalism impact summary statement is interested public to obtain more receive Federal assistance or participate not required. In keeping with detailed information, if desired. in a voluntary Federal aid program, the Department of the Interior and Unfunded Mandates Reform Act would Department of Commerce policy, we Paperwork Reduction Act of 1995 (44 not apply, nor would critical habitat requested information from, and U.S.C. 3501 et seq.) shift the costs of the large entitlement coordinated development of, this This rule does not contain any new programs listed above onto State critical habitat designation with collections of information that require governments. appropriate State resource agencies in approval by OMB under the Paperwork (2) We do not believe that this rule California. We did not receive Reduction Act of 1995 (44 U.S.C. 3501 will significantly or uniquely affect comments from State agencies. The et seq.). This rule will not impose

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recordkeeping or reporting requirements accordance with Secretarial Order 3206 References Cited on State or local governments, of June 5, 1997 (American Indian Tribal A complete list of all references cited individuals, businesses, or Rights, Federal-Tribal Trust is available on the Internet at http:// organizations. An agency may not Responsibilities, and the Endangered www.regulations.gov and upon request conduct or sponsor, and a person is not Species Act), we readily acknowledge from the Carlsbad Fish and Wildlife required to respond to, a collection of our responsibilities to work directly Office (see FOR FURTHER INFORMATION information unless it displays a with tribes in developing programs for CONTACT). currently valid OMB control number. healthy ecosystems, to acknowledge that tribal lands are not subject to the same Author(s) National Environmental Policy Act (42 controls as Federal public lands, to U.S.C. 4321 et seq.) The primary authors of this remain sensitive to Indian culture, and rulemaking are the staff members of the It is our position that, outside the to make information available to tribes. Carlsbad Fish and Wildlife Office. jurisdiction of the U.S. Court of Appeals In the proposed revisions to critical for the Tenth Circuit, we do not need to habitat published in the Federal List of Subjects in 50 CFR Part 17 prepare environmental analyses Register on August 25, 2011 (76 FR Endangered and threatened species, pursuant to the National Environmental 53224), we proposed approximately 316 Exports, Imports, Reporting and Policy Act (NEPA; 42 U.S.C. 4321 et ac (128 ha) in Unit 1 within the recordkeeping requirements, seq.) in connection with designating boundary of the Morongo Band of Transportation. critical habitat under the Act. We Mission Indians Reservation, and 580 ac published a notice outlining our reasons (235 ha) in Unit 2 within the boundary Regulation Promulgation for this determination in the Federal of the Agua Caliente Band of Cahuilla Accordingly, we amend part 17, Register on October 25, 1983 (48 FR Indians Reservation, as critical habitat subchapter B of chapter I, title 50 of the 49244). This position was upheld by the for Astragalus lentiginosus var. Code of Federal Regulations, as set forth U.S. Court of Appeals for the Ninth coachellae. We worked directly with the below: Circuit (Douglas County v. Babbitt, 48 tribes to determine economic and other F.3d 1495 (9th Cir. 1995), cert. denied burdens expected to result from critical PART 17—[AMENDED] 516 U.S. 1042 (1996)). habitat designation on tribal lands, and ■ as a result of information exchanged and 1. The authority citation for part 17 Government-to-Government continues to read as follows: Relationship With Tribes in consideration of impacts to our government-to-government relationship Authority: 16 U.S.C. 1361–1407; 1531– In accordance with the President’s with tribes and our current and future 1544; and 4201–4245, unless otherwise memorandum of April 29, 1994, conservation partnerships, the Secretary noted. Government-to-Government Relations is exercising his discretion to exclude ■ 2. Amend § 17.12(h) by revising the with Native American Tribal all lands within tribal reservation entry for ‘‘Astragalus lentiginosus var. Governments (59 FR 22951), E.O. 13175, boundaries meeting the definition of coachellae’’ under Flowering Plants in and the Department of the Interior’s critical habitat for Astragalus the List of Endangered and Threatened manual at 512 DM 2, we readily lentiginosus var. coachellae from this Plants to read as follows: acknowledge our responsibility to final revised designation under section communicate meaningfully with 4(b)(2) of the Act (see Exclusions Under § 17.12 Endangered and threatened plants. recognized Federal tribes on a Section 4(b)(2) of the Act—Tribal Lands * * * * * government-to-government basis. In section above). (h) * * *

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Species Historic range Family Status When listed Critical habi- Special Scientific name Common name tat rules

FLOWERING PLANTS

******* Astragalus Coachella Valley U.S.A. (CA) ...... Fabaceae ...... E 647 17.96(a) NA lentiginosus var. milk-vetch. coachellae.

*******

*******

■ 3. Amend § 17.96(a) by revising the dunes, active or stabilized sand fields 7.5′ quadrangle maps. Critical habitat entry for ‘‘Astragalus lentiginosus var. (including hummocks forming on units were then mapped using Universal coachellae (Coachella Valley milk- leeward sides of shrubs), ephemeral Transverse Mercator (UTM) zone 11, vetch)’’ under Family Fabaceae to read sand fields or dunes, and fluvial sand North American Datum (NAD) 1983 as follows: deposits on floodplain terraces of active coordinates. The maps in this entry, as washes. § 17.96 Critical habitat—plants. modified by any accompanying (ii) They are found within the fluvial (a) Flowering plants. regulatory text, establish the boundaries sand depositional areas, and the aeolian of the critical habitat designation. The * * * * * sand source, transport, and depositional coordinates or plot points or both on Family Fabaceae: Astragalus areas of the sand transport system. which each map is based are available lentiginosus var. coachellae (iii) They comprise sand originating to the public at the Service’s Internet (Coachella Valley milk-vetch) in the hills surrounding Coachella site, http://www.fws.gov/carlsbad/GIS/ (1) Critical habitat units are depicted Valley and alluvial deposits at the base CFWOGIS.html, http:// for Riverside County, on the maps of the Indio Hills, which is moved into www.regulations.gov at Docket No. below. the valley by water (fluvial transport) FWS–R8–ES–2011–0064, and at the (2) Within these areas, the primary and through the valley by wind (aeolian field office responsible for this constituent element of the physical or transport). designation. You may obtain field office biological features essential to the (3) Critical habitat does not include location information by contacting one conservation of Astragalus lentiginosus manmade structures (such as buildings, of the Service regional offices, the aqueducts, runways, roads, and other var. coachellae consists of sand addresses of which are listed at 50 CFR paved areas) and the land on which they formations associated with the sand 2.2. are located existing within the legal transport system in Coachella Valley, BILLING CODE 4310–55–P California. These sand formations have boundaries on March 15, 2013. the following features: (4) Critical habitat map units. Data (5) Note: Index map of four critical (i) They are active sand dunes, layers defining map units were created habitat units designated for Astragalus stabilized or partially stabilized sand using a base of U.S. Geological Survey lentiginosus var. coachellae follows:

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I "" .I

'" " • .00( ::"I"" •

(6) Unit 1: San Gorgonio River/Snow (i) Note: Map of Unit 1 follows: Creek System.

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o

(7) Unit 2: Whitewater River System. (i) Note: Map of Unit 2 follows:

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o

.. rP. '· ",

(8) Unit 3: Mission Creek/Morongo (i) Note: Map of Unit 3 follows: Wash System.

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(9) Unit 4: Thousand Palms System. (i) Note: Map of Unit 4 follows:

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t •

* * * * * Dated: February 1, 2013. Michael J. Bean, Acting Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2013–03109 Filed 2–12–13; 8:45 am] BILLING CODE 4310–55–C

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