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I 2. In § 310.58, revise paragraph (g) to SUMMARY: We, the U.S. Fish and to the species most in need of read as follows: Wildlife Service (Service), designate protection. critical habitat pursuant to the Role of Critical Habitat in Actual § 310.58 Service obligation for students Endangered Species Act of 1973, as enrolled after April 1, 1982. Practice of Administering and amended (Act), for Astragalus Implementing the Act * * * * * pycnostachyus var. lanosissimus (g) Deferments. In exceptional cases, (Ventura marsh milk-vetch). While attention to and protection of the Administration may grant a Approximately 420 acres (170 hectares) habitat is paramount to successful deferment of all or part of the agreement of land fall within the boundaries of the conservation actions, we have under paragraph (a)(5) of this section critical habitat designation. The consistently found that, in most and the service obligation contract, for designated critical habitat is located in circumstances, the designation of a period not to exceed 2 years, only for Santa Barbara and Ventura Counties, critical habitat is of little additional graduates considered to have superior California. value for most listed species, yet it academic and conduct records while at consumes large amounts of conservation the Academy and only for the purpose This critical habitat designation requires the Service to consult under resources. [Sidle (1987) stated, ‘‘Because of entering a marine or maritime-related the ESA can protect species with and graduate course of study approved by section 7 of the Act with regard to actions carried out, funded, or without critical habitat designation, the Administrator or for the purpose of critical habitat designation may be pursuing studies as recipients of authorized by a Federal agency. Section 4 of the Act requires us to consider redundant to the other consultation scholarships or fellowships of national requirements of section 7.’’ Currently, significance; Provided, that any economic and other relevant impacts when specifying any particular area as only 445 species or 36 percent of the deferment of service as a commissioned 1,244 listed species in the U.S. under officer under paragraph (a)(5)(iii) of this critical habitat. We solicited data and comments from the public on all aspects the jurisdiction of the Service have section and the service obligation designated critical habitat. We address contract shall be subject to the sole of this designation, including data on economic and other impacts of the the habitat needs of all 1,244 listed approval of the Secretary of the species through conservation designation. department which has jurisdiction over mechanisms such as listing, section 7 such service (including the Secretary of DATES: This rule becomes effective June consultations, the section 4 recovery the department in which the U.S. Coast 21, 2004. planning process, section 9 protective Guard is operating and the Secretary of ADDRESSES: Comments and materials prohibitions of unauthorized take, Commerce with respect to NOAA). A received, as well as supporting section 6 funding to the States, and the graduate shall make application for such documentation used in the preparation section 10 incidental take permit deferment through the Superintendent of this final rule, will be available for process. We conclude that it is these of the Academy, who shall forward each inspection, by appointment, during measures that may make the difference application, together with the normal business hours at the Ventura between extinction and survival for Superintendent’s recommendation for Fish and Wildlife Office, U.S. Fish and many species. approval or disapproval and an Wildlife Service, 2493 Portola Road, Procedural and Resource Difficulties in evaluation of the applicant’s academic Suite B, Ventura CA 93003. and conduct records, to the Academies Designating Critical Habitat Program Officer, Maritime FOR FURTHER INFORMATION CONTACT: We have been inundated with Administration, Office of Policy and Diane Noda, Field Supervisor, Ventura lawsuits for our failure to designate Plans, NASSIF Building, 400 7th St., Fish and Wildlife Office, U.S. Fish and critical habitat, and we face a growing SW., Washington, DC 20590 for Wildlife Service, 2493 Portola Road, number of lawsuits challenging critical appropriate action. Suite B, Ventura, CA 93003 (telephone habitat determinations once they are 805/644–1766; facsimile 805/644–3958). Dated: May 13, 2004. made. These lawsuits have subjected the SUPPLEMENTARY INFORMATION: By Order of the Maritime Administrator. Service to an ever-increasing series of Designation of critical habitat provides court orders and court-approved Joel C. Richard, little additional protection to species. In settlement agreements, compliance with Secretary, Maritime Administration. 30 years of implementing the which now consumes nearly the entire [FR Doc. 04–11319 Filed 5–19–04; 8:45 am] Endangered Species Act of 1973, as listing program budget. This leaves us BILLING CODE 4910–81–P amended (Act), we have found that the with little ability to prioritize our designation of statutory critical habitat activities to direct scarce listing provides little additional protection to resources to the listing program actions DEPARTMENT OF THE INTERIOR most listed species, while consuming with the most biologically urgent significant amounts of available species conservation needs. Fish and Wildlife Service conservation resources. The present The consequence of the critical system for designating critical habitat habitat litigation activity is that limited 50 CFR Part 17 has evolved since its original statutory listing funds are used to defend active RIN 1018–AI21 prescription into a process that provides lawsuits, to respond to Notices of Intent little real conservation benefit, is driven to sue relative to critical habitat, and to Endangered and Threatened Wildlife by litigation and the courts rather than comply with the growing number of and Plants; Final Designation of biology, limits our ability to fully adverse court orders. As a result, listing Critical Habitat for Astragalus evaluate the science involved, consumes petition responses, our own proposals to pycnostachyus var. lanosissimus enormous agency resources, and list critically imperiled species, and (Ventura Marsh milk-vetch) imposes huge social and economic final listing determinations on existing AGENCY: Fish and Wildlife Service, costs. We have determined that proposals are significantly delayed. Interior. additional agency discretion would Litigation over critical habitat issues for allow our focus to return to those species already listed and receiving the ACTION: Final rule. actions that provide the greatest benefit Act’s full protection has precluded or

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delayed many listing actions others. The soils associated with soils over the site (Impact Sciences, Inc. nationwide. Astragalus pycnostachyus var. 1998). In 1998, the City of Oxnard The accelerated schedules of court lanosissimus are well-drained, yet published a Final Environmental Impact ordered designations have left us with contain a mix of sand and clay. Because Report (FEIR), pursuant to the California almost no ability to provide for adequate of the freshwater influence, the soils do Environmental Quality Act, for public participation or to ensure a not exhibit a white crust that would development of this site (Impact defect-free rulemaking process before indicate saline or alkaline conditions. Sciences, Inc. 1998). In a final step, the making decisions on listing and critical For additional information on the project was approved by the California habitat proposals due to the risks biology, habitat requirements, and Coastal Commission (2002). associated with noncompliance with historical collection information of Astragalus pycnostachyus var. judicially-imposed deadlines. This, in Astragalus pycnostachyus var. lanosissimus is State-listed as turn, fosters a second round of litigation lanosissimus, please refer to the endangered under the California in which those who fear adverse proposed critical habitat rule (October 9, Endangered Species Act (CESA). CESA impacts from critical habitat 2002; 67 FR 62926). prohibits the take of any species listed designations challenge those Due to the combination of poor under CESA, including plants. Section designations. The cycle of litigation seedling and young plant survivorship 2081 of CESA allows private appears endless, is very expensive, and and low seed production, the single landowners to obtain a permit for the in the final analysis provides relatively naturally occurring population of incidental take of listed species, little additional protection to listed Astragalus pycnostachyus var. including plants, which must include species. lanosissimus has continued to decline mitigation measures commensurate with The costs resulting from the since its rediscovery in 1997 and the level of take proposed, adequate designation include legal costs, the cost through the 2001 season (Impacts funding for any mitigation, and of preparation and publication of the Sciences 1997, 1998; Wilken and assurance that the proposed take would designation, the analysis of the Wardlaw 2001; Dieter Wilken, Santa not jeopardize the continued existence economic effects and the cost of Barbara Botanic Garden, pers. comm. of the species. The California requesting and responding to public 2002). The population is able to persist Department of Fish and Game (CDFG) comment, and in some cases the costs due to having established a seedbank concluded that the North Shore at of compliance with National (not all seeds produced in one year will Mandalay project would not have direct Environmental Policy Act, all are part of germinate the following year). The hard effects on the subspecies and that the cost of critical habitat designation. seed coat may require scarification therefore a permit was not required; None of these costs result in any benefit (scraping or small cuts) that cannot however, the project would have to the species that is not already happen within one season, so the seed indirect effects on the plant. The afforded by the protections of the Act may survive for one year or more in the landowner entered into a memorandum enumerated earlier, and they directly soil until the coat can break down or is of understanding with CDFG in order to reduce the funds available for direct and broken by some mechanical means provide some conservation benefit to tangible conservation actions. (Michael Wall, Rancho Santa Ana the subspecies. The proposed Background Botanic Garden, pers. comm. 2000). conservation measures for Astragalus Also, Wilken and Wardlaw (2001) found pycnostachyus var. lanosissimus on the Astragalus pycnostachyus var. that the plants may not become site would be to establish a 1.65-ac lanosissimus (Ventura marsh milk- reproductive until more than 18 to 30 (0.67-ha) ‘‘milk-vetch preservation area’’ vetch) is an herbaceous perennial in the months following germination. The encompassing the entire natural Pea family (Fabaceae). Little is known of implication for Astragalus population (California Coastal the habitat requirements of this pycnostachyus var. lanosissimus is that Commission 2002). The milk-vetch subspecies. The only known population low seed production and, thus, a preservation area would be buffered of Astragalus pycnostachyus var. seedbank deficit, combined with low from soil remediation activities by a lanosissimus occurs in a sparsely seedling survival and the mortality of 100-foot (ft) (30 meters (m)) limit line vegetated low area, at an elevation of some adult plants, may contribute to the within which no excavation would about 30 feet (ft) (10 meters (m)), on the population’s decline unless other occur. The milk-vetch preservation area North Shore at Mandalay site, which threats to the plants (e.g., reduced would ultimately be inside a 23.8-ac was previously used for disposal of survivorship of seedlings and adult (9.6-ha) resource protection area (RPA). petroleum waste products (Impact plants due to snail herbivory) can be According to a comprehensive review Sciences, Inc. 1997). Based on existing addressed. of rare plant preserve design compiled information from historical collections, The single natural population of by the Conservation Biology Institute the best description we have of its Astragalus pycnostachyus var. (2000), areas to protect a rare plant habitat is from Wilken and Wardlaw lanosissimus near the city of Oxnard is species should be at a minimum 300 ft (2001), who concluded that the in a degraded backdune community. (91 m) wide but a larger area is subspecies occurs in low-elevation From 1955 to 1981, the land on which preferred, because effects (e.g., fuel coastal dune-swale areas, where it occurs (hereafter, North Shore at management, loss of pollinators, freshwater levels (in the form of Mandalay) was used as a disposal site introduction of competing exotic plants) saturated soils or groundwater) are high for oilfield wastes (Impact Sciences, Inc. are not absorbed by smaller areas, and enough to reach the roots of the plants. 1998). A development proposal for the the effects are likely to extend well into Sometimes, high groundwater is shown site includes remediation of soils adjacent preserved areas. by the presence of water in sloughs or contaminated with hydrocarbons, The efforts to conserve Astragalus coastal creeks, but more typically followed by construction of 300 homes pycnostachyus var. lanosissimus on the evidence for freshwater availability is and a 6-acre (ac) (2-hectare (ha)) lake on North Shore site are much improved seen in the presence of native 91 ac (37 ha) of land. The proposed soil over earlier concepts, and we appreciate freshwater-dependent plants such as remediation would involve excavation the efforts of the landowner. However, Salix spp. (willows), Typha spp. and stockpiling of the soils, followed by the Service believes, based on the (cattails), Baccharis salicifolia, and soil treatment and redistribution of the published literature, that the

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configuration of the preserve is not A sooty fungus was found on the Bromus spp. in 1998 (D. Steeck, in litt. suitable for buffering the plants from leaves of Astragalus pycnostachyus var. 1998). Seedling survival rates for adjacent land uses. Although the RPA is lanosissimus in late summer 1997, as Astragalus pycnostachyus var. 23.8 acres and one contiguous area, the leaves began to wither or senesce (die) lanosissimus in these areas have not Astragalus pycnostachyus var. and the plants entered a period of been determined. lanosissimus population is near the dormancy (Impact Sciences, Inc. 1997). Efforts to conserve Astragalus edge of the RPA, where it would be The effects of the fungus on the pycnostachyus var. lanosissimus have adjacent to residential development, population are not known, but it is been initiated by the landowner (North and the majority of the natural possible that the fungus attacks Shore at Mandalay LLC), a task force of vegetation in the vicinity to the senescing leaves in great number only at scientists from the University of Astragalus pycnostachyus var. the end of the growing season. The California, the Santa Barbara Botanic lanosissimus population would be plants appeared robust when in flower Garden, California Department of Fish removed. Although no measurements of in June 1997 and matured seed by and Game (CDFG), the Service, and the buffer size were available, and maps we October 1997, at which point the fungus Rancho Santa Ana Botanic Garden received were not to scale and not was noted. The plants were regrowing (RSABG). Consulting biologists for the overly clear, it appears that the majority in March 1998, after a period of landowner and proponents of the of the RPA is to the south of the dormancy, without obvious signs of the development have successfully grown Astragalus pycnostachyus var. fungus (Diane Steeck, Service, in litt. plants in a remote greenhouse facility. lanosissimus preserve and thus does not 1998). Wilken and Wardlaw’s 2001 Several plants were excavated from the provide sufficient buffering (i.e., at least study did not detect any signs of natural population and potted prior to 300 feet) from adjacent residential pathogens on mature plants that State and Federal listing, and other development and roads. Furthermore, at appeared to be in poor health; however, plants were started from seed gathered least 50 feet of the RPA, including the two mature plants had infestations of from the natural population. In buffer area surrounding the milk-vetch aphids (Family: Aphididae) that were addition, Astragalus pycnostachyus var. preserve, will be landscaped, and not being tended by nonnative Argentine lanosissimus seed from the site was natural vegetation, thus further affecting ants (Linepithema humile). Wilken placed in a seed storage collection and hydrology, pollinators, and potentially (2002) reported finding cucumber a seed bulking project at RSABG. introducing non-native species to the mosaic virus, which is transmitted by RSABG has been successful in preserve. Also, the RPA was not aphids, in the Astragalus pycnostachyus germinating Astragalus pycnostachyus intended to provide protection solely for var. lanosissimus population. var. lanosissimus seed and growing the the Astragalus pycnostachyus var. In 1997, the seeds of Astragalus plants in containers (Wilken and lanosissimus population, and as such, pycnostachyus var. lanosissimus were Wardlaw 2001). Research populations have been much of the 23.8 acre area heavily infested with seed beetles introduced in two locations within the (approximately 30 percent by our (Family Bruchidae: Coleoptera). In a historical range of Astragalus estimate) encompasses habitat which seed collection done for conservation pycnostachyus var. lanosissimus: One at would not support Astragalus purposes in 1997, we found that most Mandalay State Beach, across the street pycnostachyus var. lanosissimus (e.g., fruits partially developed at least four from the extant population, and the willow riparian habitat along the Edison seeds; however, seed predation reduced the average number of undamaged seeds other at McGrath State Beach. A further Canal). Lastly, the soil remediation the to only 1.8 per fruit (D. Steeck, in litt. research population is present outside developer has agreed to provide, which 1998). Wilken and Wardlaw (2001) of the known range of the subspecies, at will take place to within 100 feet of the reported similar findings in 2000. Carpinteria Marsh in Santa Barbara Astragalus pycnostachyus var. Apparently heavy seed predation by County. In addition, approximately 250 lanosissimus preserve, will alter the seed beetles and weevils has been individuals were planted and are being local hydrology upon which the plant reported among other members of the irrigated at the Coal Oil Point Reserve, relies. We are uncertain if the local genus Astragalus (Platt et al. 1974; also in Santa Barbara County. Seed has hydrology can or will be restored Lesica 1995). Wilken and Wardlaw been introduced at 10 separate dune following soil remediation. The RPA is (2001) estimate that seed predation by locations at the Reserve (Cristina likely to become dominated by non- these insects may reduce seed viability Sandoval, Coal Oil Point Reserve native plants, and the replacement soil by 30 percent in a given year. Director, pers. comm. 2002). The data may contain seeds of plant species Because of its small population size, gathered from these efforts will be used which will invade the Astragalus the only known natural population is in establishing self-sustaining pycnostachyus var. lanosissimus also threatened by competition with populations of Astragalus preserve. We have not seen a restoration nonnative plant species. Cortaderia pycnostachyus var. lanosissimus. The plan that establishes that the area would selloana (pampas grass), Carpobrotus plants at Coal Oil Point have been be replanted with native plants. sp., and Bromus madritensis ssp. rubens established primarily for the purpose of We were not involved in the are invasive nonnative plant species generating seeds (‘‘bulking up seed’’) to agreements between the developer and that occur at the site (Impact Sciences, increase the seedbank in storage, and local and State officials because our Inc. 1997). Carpobrotus sp., in not necessarily for generating data on regulatory authority does not extend to particular, is a competitive, succulent establishing new populations. listed plants on private land unless species with the potential to cover vast In 1997, the population of Astragalus there is a Federal nexus, such as a areas in dense clonal mats and may pycnostachyus var. lanosissimus at the Federal permit or funding. No nexus harbor nonnative snails. Bromus North Shore at Mandalay consisted of was involved at this site, and our role madritensis ssp. rubens grew in high about 374 plants, of which 260 were was strictly advisory. However, if a densities around some mature small plants thought to have germinated landowner takes a State-listed species in individuals of Astragalus in the last year, and 114 were ‘‘adult’’ violation of CESA, and the species is pycnostachyus var. lanosissimus in plants. Fewer than 65 of the adult plants also federally listed, the take would also 1998, and seedlings were germinating produced fruit in 1997 (Impact violate section 9 of the Act. among patches of Carpobrotus sp. and Sciences, Inc. 1997). In 1998, 192 plants

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were counted during surveys of the (3) Mandalay State Beach. On October 9, 2002 (67 FR 62926), and population. Service biologists placed February 23, 2003, 57 Astragalus again on March 20, 2003, when we cages around a sample of plants in 1999 pycnostachyus var. lanosissimus plants published the draft economic analysis to protect them from severe herbivory in one-gallon containers were planted. and re-opened the comment period on by small mammals, most likely brush All plants had survived as of June 2003. the critical habitat proposal (68 FR rabbits. Despite this protection, only 30 The most recent census data we have 13663). to 40 plants produced flowers in 1999, includes information from the We received three comment letters on which was believed to be less than half experimental populations at McGrath the proposed critical habitat of those blooming in 1998 (D. Steeck, in State Beach and Carpinteria Marsh designation. All three were reviewed for litt. 1998). It is not known why Reserve gathered over the summer of substantive issues and new information flowering was so low in 1999. 2003 (CDFG, in litt. 2003b). Of the five regarding critical habitat. One of the The total number of adult plants in experimental plots at McGrath State commentors was against the designation the natural population declined Beach, the plants at two plots had died on the single piece of privately-owned between 1997 and 2000 (Wilken and out, and plants at the remaining three land included in the proposal. The other Wardlaw 2001). Although 46 of 80 plots were vigorous, with a total of 79 two commentors were neutral but seedlings that germinated in the 2000 plants surviving out of 167 that were provided some new information and growing season were still present in alive during the previous census. Of the clarification on the subspecies’ natural October 2000, the total number of five plots started at Carpinteria Marsh, history and status. surviving adult plants in 2000 was only two still supported plants, with a Peer Review estimated at 39. Many are believed to total of 30 plants surviving out of 155 have succumbed to herbivory from planted (19 percent). At McGrath State In accordance with our policy snails and brush rabbits (Wilken and Beach, the losses and successes were published on July 1, 1994 (59 FR Wardlaw 2001). Following efforts to attributed to moisture availability (i.e., 34270), we solicited the expert opinions control snails in 2000 (i.e., poisoning, plants died where the roots were not of six independent specialists regarding hand removal, clearing of iceplant, able to reach freshwater, but did well this rule. The purpose of such review is fencing), and perhaps more favorable where freshwater was available). At to ensure listing decisions are based on growing conditions in the winter of Carpinteria, the losses were attributed to scientifically sound data, assumptions, 2000–01, more than 1,000 seedlings high salinity and gopher foraging and analyses. We sent these peer were observed (D. Wilken, pers. comm. (CDFG, in litt. 2003b). reviewers copies of the proposed rule 2002). Of these, more than 300 survived immediately following publication in Previous Federal Action until October 2001, when they became the Federal Register. Two of the peer dormant, indicating an increase in the On October 9, 2002, we published the reviewers responded, providing number of plants in the natural proposed critical habitat designation for comments that we have incorporated population. Astragalus pycnostachyus var. into the final rule. A census of the natural population on lanosissimus (67 FR 62926) in Responses to Comments September 15, 2002, revealed that 37 compliance with the August 2, 2001, reproductive plants had survived from stipulated settlement agreement and (1) Comment: One comment stated the seedlings present in 2001, and 38 order. In that proposed rule, we that a critical habitat designation could reproductive plants remained from included a detailed summary of the add nothing to the multiple protections seedlings established in 2000 or earlier, previous Federal actions completed already in place for Astragalus for a total of 75 reproductive plants in prior to publication of the proposal. We pycnostachyus var. lanosissimus at the 2002. Approximately 350 plants had re-opened the public comment period to North Shore site, which supports the germinated in 2002. The total number of seek comments on the draft economic only natural population of the surviving plants was not determined. analysis on March 20, 2003 (68 FR subspecies and warrants exclusion Some mortality is expected among all 13663). Due to funding shortfalls for under section 4(b)(2) of the Act. The age classes in the following years critical habitat work in FY 2003, we comment further states that similar depending upon rainfall and other were unable to complete the final rule exemptions have been granted to factors. by the stipulated date of October 1, military installations. As of June 2003, the status of the 2003. On September 29, 2003, the court Our Response: The comment’s research populations at McGrath State granted the Service’s motion to modify rationale for exclusion of the North Beach, Carpinteria Marsh Reserve, and the August 2, 2001 Stipulated Shore at Mandalay site from the critical Mandalay State Beach (CDFG, in litt. Settlement Agreement and Order and habitat designation, citing that it is 2003a), was as follows (the Coal Oil extended the date for publication of the similar to exclusions we have granted Point population is excluded because it final rule to May 15, 2004 (Center for under section 4(b)(2) for military is not part of the research, as described Biological Diversity v. United States installations, is not accurate. Where we earlier): Fish and Wildlife Service, C 01–0352 SI have excluded a military installation (1) McGrath State Beach. In April (N.D. Cal.)). from a critical habitat designation 2002, 167 plants were planted at pursuant to section 4(b)(2), we McGrath State Beach. As of February Summary of Comments and determined that the benefits of 2003, 88 percent (147) of the plants had Recommendations excluding lands under the jurisdiction survived, and most were still alive in We solicited comments from of the U.S. military outweigh the June 2003. Three sites at McGrath had appropriate Federal, State, and local benefits of including them as critical produced a total of 236 seedlings. agencies, the scientific community, and habitat, and would not result in the (2) Carpinteria Marsh Reserve. In other interested parties. We invited extinction of the species. April 2002, 155 plants were planted. As public comment through notification As stated previously, this site of February 2003, 44 percent (68) of the sent to local newspapers in Ventura and supports the only naturally-occurring plants survived. Only 20 seedlings had Santa Barbara Counties. Additionally, population. While there are other been produced by plants at one of the we invited public comment on the locations where the subspecies has been planting sites as of June 2003. proposed critical habitat designation on planted, these remain under study and

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it is not clear at this time how or recovery of Astragalus pycnostachyus Administrative Procedure Act provide whether they will contribute to the var. lanosissimus. ample opportunity for public survival of the species. This site is the (3) Comment: One comment stated involvement in the process, similar to only seed source, has provided all of the that the proposed rule was not specific the opportunities for public initial propagules for establishing enough to identify properties or whether involvement and economic analysis of research populations of the species at they contained primary constituent effects that would be provided in the other sites, and continues to be the elements, and, therefore, did not allow NEPA process. source of genetic variability for future for comments on specific parcels. (6) Comment: One comment propagation. The research populations Our Response: We disagree that the recommended that we avoid making at McGrath State Beach, Carpinteria proposed rule did not adequately conclusions about the success of efforts Marsh, and Mandalay State Beach are identify locations of critical habitat. The to establish Astragalus pycnostachyus not intended to become new proposed rule provided maps and var. lanosissimus at Carpinteria Marsh populations for the recovery of the Universal Transverse Mercator (UTM) until the population proves to be self- species, but were established to generate coordinates of the proposed critical sustaining, which could take 3 to 4 data on the species’ needs when such habitat units. The UTM coordinates are years. introductions for recovery begin. Their typically used in Global Positioning Our Response: We recognize that the persistence is uncertain, and we have System (GPS) data and are at a scale of efforts to establish Astragalus observed some failures (see Background 3.3 ft (1 m), which is of sufficient detail pycnostachyus var. lanosissimus at section). Consequently, the population for locating the extent and configuration Carpinteria Marsh were preliminary at of Astragalus pycnostachyus var. of the units, and should allow most the time the proposed rule was lanosissimus on the North Shore at property owners to determine if their published. More recent data has been Mandalay site is currently the only one property is within the boundaries of incorporated into this final rule that of which we can be relatively certain critical habitat. Detailed maps of the shows limited success with the that the plants will persist. If this designation are available on our web experimental population due to population is extirpated, and the site, and property owners may call our physical (e.g., salinity) and biological research populations ultimately fail, all office for further assistance if necessary. factors (e.g., competition from nonnative (4) Comment: One comment asserted of the remaining individuals of plants). that the proposed rule failed to include Astragalus pycnostachyus var. (7) Comment: Two comments stated an economic analysis as required under lanosissimus will exist as seeds in that a research population had not been the Act. collections or propagated in initiated at Mandalay State Beach, Our Response: We conducted an despite our contention to that effect in greenhouses. The designation of the economic analysis as required by the North Shore at Mandalay site as critical the proposal. Act. The draft economic analysis was Our Response: At the time the critical habitat recognizes that this population made available for public review on habitat proposal was published, the is essential to the species’ conservation. March 20, 2003 (68 FR 13663), and we comments are correct that the research This southernmost unit is accepted public comments on it from population had not yet been initiated; geographically separated from other March 20, 2003, until April 21, 2003. however, the CDFG has now critical habitat within its historical We did not receive any comments on implemented an experimental range. This will reduce the likelihood of the draft economic analysis. The final population at Mandalay State Beach in all populations being destroyed by one economic analysis is part of the addition to those at McGrath State naturally occurring catastrophic event. administrative record for this Beach, Carpinteria Marsh, and Coal Oil (2) Comment: One comment stated rulemaking. Point. The CDFG planted 57 1-gallon that the proposed rule was based upon (5) Comment: One comment stated specimens of Astragalus pycnostachyus the wrong legal standard for that the Service cannot designate critical var. lanosissimus at Mandalay State determining critical habitat. Critical habitat for the milk-vetch until it first Beach in February 2003. The status of habitat is to be narrowly drawn. complies with the requirements of the this outplanting is described in the Our Response: The critical habitat National Environmental Policy Act. The background section of this final rule. units as proposed meet the definition of comment cites Catron County Board of (8) Comment: One comment stated critical habitat in the Act. The occupied Commissioners v. U.S. Fish and Wildlife that the plants at Coal Oil Point are an areas designated are essential to the Service (1996) to support its contention. in-ground nursery and not intended to conservation of the species and may Our Response: As we indicated in our become a self-sustaining population. require special management. In proposed rule, we have determined that Our Response: The intent of the Coal addition, we have made the finding that an Environmental Assessment or an Oil Point experiment was not clear to us the unoccupied areas are essential to the Environmental Impact Statement, as at the time the critical habitat proposal conservation of the species. The North defined under the authority of the was published. From discussions with Shore at Mandalay site, for which the National Environmental Policy Act of the science task force, we now recognize comment seeks exclusion, supports the 1969, need not be prepared in that the population is meant to provide only naturally-occurring population of connection with regulations adopted propagules (cuttings or seed) for other Astragalus pycnostachyus var. pursuant to section 4(a) of the Act. A populations. lanosissimus in existence. The plants on notice outlining our reason for this (9) Comment: One comment this site are the source of all genetic determination was published in the expressed concern that critical habitat variation available to the subspecies, Federal Register on October 25, 1983 designations on land within the and its survival is dependent upon a (48 FR 49244). This position has been University of California’s Natural diverse genetic base that can respond to upheld by the Ninth Circuit Court of Reserve System could cause regulatory environmental fluctuations and disease. Appeals in Douglas County v. Babbitt, delays for federally funded research The designation includes the site of 48 F.3d 1495 (9th Cir. 1995). projects on these lands. the one existing population and Also, the public involvement and Our Response: We did not receive any sufficient area to establish new notification requirements under both comments from representatives of the populations necessary for survival and the Endangered Species Act and the University of California’s Natural

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Reserve System (Reserve) objecting to information they provided led us to pycnostachyus var. lanosissimus where the proposed designation. We conclude that opportunities for the two plants occur together. understand that one of the purposes of introductions of Astragalus Our Response: We recognize that the Reserve system is conservation of pycnostachyus var. lanosissimus were current and new threats to Astragalus plants and animals, such as Astragalus incompatible with current conditions pycnostachyus var. lanosissimus exist; pycnostachyus var. lanosissimus, so the and future restoration efforts. We agree however, this new information does not critical habitat designation is consistent that the areas to the south within the affect the critical habitat designation at with that goal. Federal funding of historical range of Astragalus this time. We will consider this research projects at Carpinteria Marsh pycnostachyus var. lanosissimus are information and incorporate this data could trigger consultation under section worth exploring for recovery efforts; into the recovery efforts currently under 7 of the Act if the research project however, the information we had at the way for Astragalus pycnostachyus var. would adversely affect designated time critical habitat units were lanosissimus. critical habitat for Astragalus identified did not support inclusion of Summary of Changes From Proposed pycnostachyus var. lanosissimus. sites in Los Angeles and Orange However, we have concluded that these Counties. Rule consultations would not cause undue (11) Comment: One comment asked Based upon our review of the public delays in initiating research projects. why land at the Navy Base Ventura comments, peer review responses, and Compliance with section 7 could range County was excluded from the the economic analysis, we reevaluated from simple concurrence, which is designation when Wilken and Wardlaw our critical habitat and made changes as usually completed within 30 days, to (2001) included it, and why the Ormond necessary. Although some pertinent formal consultation, which could take Beach area was not included. information on the background of the 135 days or less. Formal consultation on Our Response: Based upon Wilken subspecies was provided by reviewers, critical habitat would only be necessary and Wardlaw’s (2001) research, we we did not receive new information that if the action would have an adverse considered a site at the Navy Base would warrant changes to the effect on the critical habitat. We Ventura County, Point Mugu for boundaries of critical habitat as anticipate that most research within the inclusion as critical habitat. Point Mugu proposed. We did incorporate changes Reserve would be designed not to Naval Air Weapons Station, in southern to the information on Astragalus adversely affect the primary constituent Ventura County, may have suitable pycnostachyus var. lanosissimus which elements of the critical habitat of habitat (Wilken and Wardlaw 2001). A. include the following: Astragalus pycnostachyus var. pycnostachyus var. lanosissimus was (1) We updated the status of the lanosissimus. not found during cursory surveys of the natural and research populations. These (10) Comment: Two comments noted base, nor has this taxon ever been changes are generally the result of more that the Wilken and Wardlaw (2001) collected there despite habitat recent counts of the numbers of report was not intended to represent a evaluations and vegetation sampling by individual plants. Where available, we comprehensive analysis of all potential the Navy for the past 15 years (Navy included new data on factors affecting sites for introduction of Astragalus Base Ventura County 2002). Further, our the plants’ growth and development. pycnostachyus var. lanosissimus, and criteria for including sites required more (2) Information on participants in the that areas to the south of Ventura than just suitable habitat. We designated science task force overseeing current County within the historical range of areas with primary constituent experiments with Astragalus Astragalus pycnostachyus var. elements, where the existing population pycnostachyus var. lanosissimus has lanosissimus should have been occurs and those where research been revised. included. populations have been established. (3) We updated information on Our Response: While Wilken and Nevertheless, we intend to continue to experiments being conducted at Wardlaw (2001) was not intended to be work with the Navy to develop an Mandalay State Beach, which we an exhaustive analysis of all potential introduction and conservation plan for erroneously described in the proposed sites for introduction of Astragalus Astragalus pycnostachyus var. rule. pycnostachyus var. lanosissimus at the lanosissimus at the Navy Base Ventura. (4) We updated the description of a time critical habitat was proposed, it For the Ormond Beach area, we did proposed development on the North was, and remains, the best scientific not have sufficient information at the Shore at Mandalay site that supports the information available to support the time critical habitat for Astragalus only natural population of Astragalus designations. Our designation is to be pycnostachyus var. lanosissimus was pycnostachyus var. lanosissimus. based on the best available scientific proposed to warrant its inclusion. As (5) We provided a summary of the data. We do not have similar data for all stated above, we did not attempt to Economic Analysis that has been other potential introduction sites, so we include areas for which we did not have adopted as final for this rule. did not attempt to include areas for data indicating that the location was which we did not have data indicating essential to the conservation of Critical Habitat that the location was essential to the Astragalus pycnostachyus var. Critical habitat is defined in section 3 conservation of Astragalus lanosissimus. of the Act as—(i) the specific areas pycnostachyus var. lanosissimus. Based (12) Comment: One comment stated within the geographic area occupied by on museum records, we know that that gophers (Thomomys bottae) are a a species, at the time it is listed in Astragalus pycnostachyus var. continuing threat to the plants at some accordance with the Act, on which are lanosissimus was once known from Los of the sites where Astragalus found those physical or biological Angeles and Orange Counties. In pycnostachyus var. lanosissimus has features (I) essential to the conservation preparation of the proposed rule, we been introduced, but not at the native of the species and (II) that may require interviewed biologists familiar with the population site where buried oil sludge special management considerations or coastal wetlands in Los Angeles and may deter gophers. Further, the protection; and (ii) specific areas Orange Counties, and specifically, comment notes that the nonnative outside the geographic area occupied by historical locations at the Ballona Melilotus indicus is a competitor for the a species at the time it is listed, upon Wetlands and Bolsa Chica. The likely pollinator of Astragalus a determination that such areas are

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essential for the conservation of the essential if better information became may move from one area to another over species. ‘‘Conservation’’ means the use available, or what areas may become time. Furthermore, we recognize that of all methods and procedures that are essential over time. We have also designation of critical habitat may not necessary to bring an endangered or a excluded from this proposal, areas of include all of the habitat areas that may threatened species to the point at which suitable habitat where they might eventually be determined to be listing under the Act is no longer potentially occur, and some localities necessary for the conservation of the necessary. where they historically occurred. species. For these reasons, critical The designation of critical habitat To be included in a critical habitat habitat designations do not signal that does not affect land ownership or designation, the Service must also find habitat outside the designation is establish a refuge, wilderness, reserve, that habitat may require special unimportant or may not be required for preserve, or other conservation area. It management considerations or recovery. does not allow government or public protections. As discussed in more detail Areas that support populations, but access to private lands. Under section 7 below, with respect to the individual are outside the critical habitat of the Act, Federal agencies must units, the Service finds that the three designation, will continue to be subject consult with us on activities they units designated as critical habitat for to conservation actions implemented undertake, fund, or permit that may Astragalus pycnostachyus var. under section 7(a)(1) of the Act and to affect critical habitat and lead to its lanosissimus may require special the regulatory protections afforded by destruction or adverse modification. management considerations or the section 7(a)(2) jeopardy standard However, the Act prohibits protections due to threats to the species and the section 9(a)(2) prohibitions, as unauthorized take of listed species and and/or its habitat. Such special determined on the basis of the best requires consultation for activities that management considerations or available information at the time of the may affect them, including habitat protections may include management of action. Federally funded or permitted alterations, regardless of whether invasive, non-native plants; reducing or projects affecting listed species outside critical habitat has been designated. eliminating herbivory by snails and their designated critical habitat areas To be included in a critical habitat rabbits; and reducing or eliminating the may still result in jeopardy findings in designation, habitat must be either a indirect effects of development, as well some cases. Similarly, critical habitat specific area within the geographic area as protecting the composition of native designations made on the basis of the occupied by the species on which are plant and animal communities within best available information at the time of found those physical or biological critical habitat units. designation will not control the features essential to the conservation of Section 4(b)(2) of the Act requires that direction and substance of future the species (primary constituent we take into consideration the recovery plans, HCPs, or other species elements, as defined at 50 CFR economics, and any other relevant conservation planning efforts if new 424.12(b)) and which may require impact, of specifying any particular area information available to these planning special management considerations or as critical habitat. We may exclude areas efforts calls for a different outcome. protections, or be specific areas outside from critical habitat designation when of the geographic area occupied by the the benefits of exclusion outweigh the Methods species which are determined to be benefits of including the areas within As required by section 4(b)(2) of the essential to the conservation of the critical habitat, provided the exclusion Act and regulations at 50 CFR 424.12, species. Section 3(5)(C) of the Act states will not result in extinction of the we used the best scientific information that critical habitat shall not include the species. available to determine areas that contain entire geographical area which can be Our Policy on Information Standards the physical and biological features that occupied by a species unless the under the Endangered Species Act, are essential for the conservation of Secretary determines that circumstances published in the Federal Register on Astragalus pycnostachyus var. require such designation. Our July 1, 1994 (59 FR 34271), provides lanosissimus. This information included regulations (50 CFR 424.12(e)) also state criteria, establishes procedures, and data from the final rule listing the that, ‘‘The Secretary shall designate as provides guidance to ensure that our species as endangered (66 FR 27901), critical habitat areas outside the decisions represent the best scientific the California Natural Diversity Data geographic area presently occupied by and commercial data available. It Base (CNDDB) (CDFG 2002), recent the species only when a designation requires our biologists, to the extent biological surveys, reports and aerial limited to its present range would be consistent with the Act and with the use photos, additional information provided inadequate to ensure the conservation of of the best scientific and commercial by interested parties, and discussions the species.’’ Accordingly, when the data available, to use primary and with botanical experts. We also best available scientific and commercial original sources of information as the conducted site visits to locations data do not demonstrate that the basis for recommendations to designate managed by Federal and State agencies, conservation needs of the species critical habitat. When determining including NBVC, McGrath State Beach, require designation of critical habitat which areas are critical habitats, a and Carpinteria Marsh. outside of occupied areas, we will not primary source of information should be Much of our understanding of the designate critical habitat in areas the listing package for the species. habitat requirements of Astragalus outside the geographic area occupied by Additional information may be obtained pycnostachyus var. lanosissimus is the species. Within the geographic area from a recovery plan, articles in peer- derived from Wilken and Wardlaw occupied by Astragalus pycnostachyus reviewed journals, conservation plans (2001), which represents the most var. lanosissimus, we will designate developed by states and counties, complete information to date regarding only areas currently known to be scientific status surveys and studies, the biology and habitat of the species. essential. Essential areas should already biological assessments, or other Of particular relevance to this critical have the features and habitat unpublished materials. habitat determination, Wilken and characteristics that are necessary to Section 4 of the Act requires that we Wardlaw (2001) provide descriptions of sustain Astragalus pycnostachyus var. designate critical habitat based on what the habitat of Astragalus pycnostachyus lanosissimus. We will not speculate we know at the time of designation. var. lanosissimus’ closest relative, about what areas might be found to be Habitat is often dynamic, and species Astragalus pycnostachyus var.

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pycnostachyus (northern marsh milk- Primary Constituent Elements (1) Vegetation cover of at least 50 vetch). Wilken and Wardlaw (2001) percent but not exceeding 75 percent, collected data on habitat characteristics In accordance with section 3(5)(A)(i) consisting primarily of known at sites occupied by Astragalus of the Act and regulations at 50 CFR associated native species, including but 424.12, in determining which areas to pycnostachyus var. pycnostachyus and not limited to, Baccharis salicifolia, designate as critical habitat, we consider compared these with the characteristics Baccharis pilularis, Salix lasiolepis, those physical and biological features at the extant population of Astragalus Lotus scoparius (deerweed), and (primary constituent elements) that are pycnostachyus var. lanosissimus. Once Ericameria ericoides (coast goldenbush); essential to the conservation of the (2) Low densities of nonnative annual common habitat characteristics had species and that may require special been established, Wilken and Wardlaw plants and shrubs; management considerations or (3) The presence of a high water table, used these to evaluate areas for their protection. These include, but are not either fresh or brackish, as evidenced by suitability for establishing new limited to: space for individual and the presence of channels, sloughs, or populations of Astragalus population growth, and for normal depressions that may support stands of pycnostachyus var. lanosissimus. The behavior; food, water, air, light, Salix lasiolepis, Typha spp., and factors evaluated included: degree of minerals or other nutritional or Scirpus spp. (cattail); disturbance; vegetative cover (percent physiological requirements; cover or (4) Soils that are fine-grained, and type); associated species; proximity shelter; sites for reproduction, composed primarily of sand with some to subterranean water table; and germination, or seed dispersal; and clay and silt, yet are well-drained; and potential threats. Wilken and Wardlaw habitats that are protected from (5) Soils that do not exhibit a white (2001) also analyzed soil from the site disturbance or are representative of the crystalline crust that would indicate where Astragalus pycnostachyus var. known historical, geographical, and saline or alkaline conditions. lanosissimus currently exists for ecological distributions of a species. Criteria Used To Identify Critical physical and chemical properties Much of what is known about the Habitat important for general plant growth, such specific physical and biological Critical habitat designated for as texture, pH, salinity, nutrients, and requirements of Astragalus micronutrients. Astragalus pycnostachyus var. pycnostachyus var. lanosissimus is lanosissimus includes the only known Determining what constitutes habitat described in the Background section of location where the subspecies currently for Astragalus pycnostachyus var. this final rule. The designated critical occurs and two other sites with high lanosissimus is difficult because there is habitat is designed to provide sufficient potential to support the subspecies only one extant population, and the site habitat to maintain self-sustaining based upon habitat and/or historical has been altered by soil dumping and populations of Astragalus occurrences. We have concluded that oil waste disposal. Also, the historical pycnostachyus var. lanosissimus establishment of new, self-sustaining collections did not fully document the throughout its range, and to provide populations of Astragalus habitat where the plants were found. those components essential for the pycnostachyus var. lanosissimus at Therefore, both Wilken and Wardlaw conservation of the subspecies. These other sites is essential for the (2001) and the Service’s data (D. Steeck, habitat components provide for: (1) subspecies’ survival because it is in litt. 1998) were used to characterize Individual and population growth, currently known from a single location including sites for germination, the habitat of Astragalus pycnostachyus where its future is uncertain due to its pollination, reproduction, pollen and var. lanosissimus and to determine the small population size, and the high seed dispersal, and seed dormancy; and primary constituent elements. Some degree of threat from chance (2) areas that provide basic requirements differences between the two subspecies catastrophic events. Catastrophic events for growth, such as water, light, and are a concern when the number of of Astragalus pycnostachyus are minerals. apparent, especially in regard to populations or geographic distribution associated plant species and general We have concluded that the long-term of a species is severely limited (Shaffer habitat type. For example, some success of the conservation of 1981, 1987; Meffe and Carroll 1997; individuals of Astragalus Astragalus pycnostachyus var. Primack 1998), as is the case with lanosissimus is dependent upon the pycnostachyus var. pycnostachyus are Astragalus pycnostachyus var. protection of the existing population found in habitats similar to Astragalus lanosissimus. Because a critical habitat site and sites where introductions can pycnostachyus var. lanosissimus, but designation limited to this subspecies’ be conducted, as well as the present range, which is one known individuals are also found some maintenance of ecological functions distance from wet habitats in relatively location, would be inadequate to ensure within these sites, including its conservation, the establishment of dry or gravelly soils. Such differences connectivity between colonies (i.e., additional locations for Astragalus may be a function of a small data set for groups of plants within sites) within pycnostachyus var. lanosissimus is Astragalus pycnostachyus var. close geographic proximity to facilitate critical to reducing the risk of lanosissimus due to its single pollinator activity and seed dispersal. extinction. population, uncertainty surrounding its The areas we are designating as critical For sites not currently occupied by presence on the extant site (i.e., whether habitat provide some or all of the habitat Astragalus pycnostachyus var. it is a natural occurrence or was components essential for the lanosissimus, we first considered the introduced through soil dumping), and conservation of Astragalus historical range of the subspecies based differences in habitat needs of the two pycnostachyus var. lanosissimus. Based upon collection data and records from subspecies. We have paid particular on the best available information from the CNDDB (CDFG 2001). From this attention to information from Wilken the only extant site of the species, the potential distribution, we located areas and Wardlaw (2001) because they primary constituent elements of critical where the plants were observed or analyzed conditions at the only known habitat for Astragalus pycnostachyus collected in the past. site where Astragalus pycnostachyus var. lanosissimus. consist of, but are not By examining aerial photographs and var. lanosissimus currently occurs. limited to: reviewing pertinent literature, and

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through discussions with botanical Consequently, we rejected both Bolsa Special Management Considerations or experts, we identified areas where the Chica and the Ballona Wetlands as Protections primary constituent elements exist. potential reintroduction sites for When designating critical habitat, we These broader areas were refined with Astragalus pycnostachyus var. assess whether the areas determined to information on the extant population lanosissimus and as critical habitat be essential for the conservation of the and the other locations as derived from units. species may require special Wilken and Wardlaw (2001). We also For critical habitat outside of the management or protections. The engaged in discussions, by phone and historical range, we considered areas Mandalay Unit may require special electronic mail, with the Carlsbad Fish from Gaviota State Beach, Santa Barbara management considerations or and Wildlife Office, which has County, south to San Diego County. We protections due to the threats to the responsibility for and experience with, have included only one critical habitat species and its habitat posed by the historical locations in southern Los unit (Carpinteria Marsh) that could be development (e.g., loss of native Angeles and Orange Counties (K. Clark, considered outside of the known range vegetation, disruption of pollinator Service, pers. comm. 2002; J. Fancher, of the subspecies in this critical habitat community, herbivory by snails, Service, pers. comm. 2002). designation. That location is included increase in non-native plants, soil We identified the boundaries of the because of its proximity to the historical units on aerial photographs and U.S. remediation), herbivory by rabbits, and distribution and the presence of primary trampling as a result of human activity. Geological Survey topographical maps constituent elements. Data to support and refined them based upon adjacent Currently, competition by non-native designation of critical habitat elsewhere plants, herbivory by snails and rabbits, land uses. For example, one unit is outside the historic range of Astragalus bordered on three sides by urban areas and human activity are ongoing in the pycnostachyus var. lanosissimus are Mandalay Unit. The McGrath Unit may and on the other side by the Pacific limited. In addition, introducing Ocean. The critical habitat units were require special management Astragalus pycnostachyus var. considerations or protections due to the designed to encompass a large enough lanosissimus in the vicinity of area to support existing ecological threats to the species and its habitat Astragalus pycnostachyus var. posed by invasive, non-native plants processes that may be essential to the pycnostachyus is not prudent because of conservation of Astragalus and trampling as a result of human the potential for hybridization and activity. Currently, competition from pycnostachyus var. lanosissimus (i.e., dilution of genetic identity between the that provide areas for population non-native plants and human activity two varieties. Therefore, we did not are ongoing in the McGrath Unit. The expansion, provide connectivity or consider other locations outside the linkage between colonies within a unit, Carpinteria Salt Marsh Unit may require historical range of Astragalus special management considerations or and support populations of pollinators pycnostachyus var. lanosissimus. and seed dispersal organisms). protections due to the threats to the Within the historical range of In designating critical habitat, we species and its habitat posed by non- Astragalus pycnostachyus var. made an effort to avoid developed areas, native plants and high salinity. lanosissimus, we considered two of the such as housing developments, that are Currently, competition from non-native collection localities: Bolsa Chica, unlikely to contain the primary plants and fluctuations in salinity levels Orange County, and the Ballona constituent elements for Astragalus are ongoing in the Carpinteria Salt Wetlands, Los Angeles County. During pycnostachyus var. lanosissimus. Marsh Unit. However, we did not map critical discussions with biologists most Critical Habitat Designation familiar with these areas (K. Clark, pers. habitat at a small enough scale to all for comm. 2002; J. Fancher, pers. comm. the exclusion of all lands unlikely to The critical habitat areas described 2002), we concluded that, although the contain the primary constituent below constitute our best assessment at areas remain undeveloped for the most elements essential for the conservation this time of the areas essential for the part, conditions have changed of Astragalus pycnostachyus var. conservation of Astragalus dramatically since the plants were lanosissimus. Areas within the pycnostachyus var. lanosissimus. The collected. For example, the Bolsa Chica boundaries of the mapped units such as areas designated as critical habitat are: area has been altered by oil buildings, roads, parking lots, railroads, (1) Mandalay, including the site of the development, which created raised pads airport runways and other paved areas, extant population at Fifth Street and and lower excavated areas, and lawns, and other urban landscaped Harbor Boulevard in the city of Oxnard, channelized the natural freshwater areas will not contain any of the Ventura County; (2) McGrath Lake area, inflow that once existed. The influence primary constituent elements. Federal McGrath State Beach, California of tidal flow is now more pronounced, actions limited to these areas, therefore, Department of Parks and Recreation to the point that the soils have become would not trigger a section 7 (CDPR), Ventura County, and (3) saline. The area, also, does not contain consultation, unless they affect the Carpinteria Salt Marsh Reserve run by plant species that indicate freshwater species and/or primary constituent the University of California, Santa influence. Plant species indicating elements in adjacent critical habitat. Barbara, (UC Santa Barbara) Santa freshwater influence are found at the In summary, we selected critical Barbara County. currently occupied site and at locations habitat areas that provide for the The only site occupied by a natural where the close relative, Astragalus conservation of Astragalus population of Astragalus pycnostachyus pycnostachyus var. pycnostachyus, pycnostachyus var. lanosissimus where var. lanosissimus is in the Mandalay occurs. Also, long-range plans for Bolsa it is known to occur, as well as areas Unit in the city of Oxnard. A research Chica would increase the tidal influence essential for establishment of new population has been initiated at the by establishing a direct connection to populations in order for the species to Mandalay State Beach portion of the the ocean across Bolsa Chica State be conserved. As noted above, unit. Research introductions have also Beach. The Ballona Wetlands are establishment of new populations is occurred at the Carpinteria Salt Marsh similarly isolated from a freshwater important to reduce the risk of Reserve and McGrath State Beach units. source and are subject to considerable extirpation from chance catastrophic Research populations may be present in disturbance from human activities. events. some of the units; however, these are

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not considered self-sustaining populations because the primary habitat has also contributed to the need populations as they require continued constituent elements are present and to designate areas currently unoccupied monitoring and control. Therefore, we they can be adequately protected from by Astragalus pycnostachyus var. consider all of the units unoccupied the threats identified earlier. One site is lanosissimus as critical habitat. We have except for the Mandalay Unit where the within the historical range of the therefore concluded that the designation natural population occurs. We find that subspecies and one is not. of currently unoccupied locations as unoccupied areas are essential to the Our evaluation of Astragalus critical habitat is essential to the conservation of the species because the pycnostachyus var. lanosissimus has conservation of Astragalus single extant natural population is likely shown that suitable habitat areas are pycnostachyus var. lanosissimus. to be affected by direct and indirect scarce within the historical range of the impacts of the approved development of subspecies. The combination of In summary, we have designated the North Shore at Mandalay project associated plant species, high approximately 420 ac (170 ha) of land (i.e., due to inadequate preserve design). groundwater, low salinity, and other in three units as critical habitat for Furthermore, a catastrophic event could primary constituent elements has either Astragalus pycnostachyus var. eliminate the population regardless of been removed or disrupted by lanosissimus. The approximate areas of the development. In the absence of urbanization, agriculture, oilfield designated critical habitat by land suitable off-site locations where the development, or flood control projects. ownership are shown in Table 1. Private subspecies could be established, it is Other areas within the historical range lands comprise approximately 33 possible that it could go extinct. The were considered and rejected, and areas percent of the designated critical two unoccupied sites we have included outside of the historical range were habitat; and State lands comprise 67 have been identified through research as limited in scope and only one was percent. No Federal lands are included the most likely candidates for new included. The scarcity of suitable in the designation.

TABLE 1.—APPROXIMATE AREAS IN ACRES (AC) AND HECTARES (HA) OF DESIGNATED CRITICAL HABITAT FOR ASTRAGALUS PYCNOSTACHYUS VAR. LANOSISSIMUS BY LAND OWNERSHIP1

Unit name Private State Federal Total

Mandalay Unit ...... 104 ac (42 ha) ...... 49 ac (20 ha) ...... 0 ac (0 ha) ...... 153 ac (62 ha). McGrath Unit ...... 35 ac (14 ha) ...... 27 ac (11 ha) ...... 0 ac (0 ha) ...... 62 ac (25 ha). Carpinteria Salt Marsh Unit ...... 0 ac (0 ha) ...... 205 ac (83 ha) ...... 0 ac (0 ha) ...... 205 ac (83 ha).

Total ...... 139 ac (56 ha) ...... 281 ac (114 ha) ...... 0 ac (0 ha) ...... 420 ac (170 ha). 1 Approximate acres have been converted to hectares (1 ha = 2.47 ac).

The three critical habitat units includes a 1.65-ac (0.67-ha) ‘‘milk-vetch population were established at include the only known location where preservation area’’ encompassing the Mandalay State Beach. The site contains the subspecies currently occurs and two entire natural population (California one or more of the primary constituent unoccupied sites that contain the Coastal Commission 2002), which in elements defined for Astragalus primary constituent elements. A brief turn, would be inside a 23.8-ac (9.6-ha) pycnostachyus var. lanosissimus critical description of each critical habitat unit resource protection area (RPA). The habitat, although Wilken and Wardlaw is given below. RPA would be buffered from adjacent (2001) note some dense cover of residential development by a 50-ft (15 nonnative annuals. Also, using their five Mandalay Unit m) wide landscaped area. The parameters, Wilken and Wardlaw (2001) The Mandalay Unit is approximately population will be mostly isolated from ranked the Mandalay State Beach 153 ac (62 ha) in size and is essential surrounding vegetation, and the portion of this unit as one of the most to the conservation of Astragalus ecological processes sustaining the similar to the natural occurrences of pycnostachyus var. lanosissimus population may be interrupted. Also, Astragalus pycnostachyus var. because it contains the only known the project may allow increased human lanosissimus and the closely related location where Astragalus intrusion, provide habitat for nonnative Astragalus pycnostachyus var. pycnostachyus var. lanosissimus plants and snails, alter the hydrologic pycnostachyus, and hence one of the naturally exists and the remainder of the regime, and introduce pesticides and top candidates for establishing a new unit also supports the primary fertilizers that adversely affect the population. constituent elements. The State-owned plants. Therefore, the risk of extinction California Department of Parks and Mandalay State Beach is managed by of the subspecies is high without the Recreation (CDPR) has approved the Ventura County Parks and development of additional populations. experimental introductions of Recreation Department and comprises The portion of this unit on Mandalay Astragalus pycnostachyus var. about 49 ac (20 ha) of this unit. The State Beach is identified by Wilken and lanosissimus conducted by the CDFG. remaining area of the unit is privately Wardlaw (2001) as a possible site for Because the area is public land owned owned and is currently undeveloped, establishing a new population of by the CDPR and the species is State- but has been chosen as the site for a Astragalus pycnostachyus var. listed, we will work with the State to 300-housing-unit subdivision lanosissimus. In 2003, the first efforts at develop conservation strategies to (Economic and Planning Systems, Inc. researching how new populations could reintroduce the subspecies and develop 2003). be established in this unit were begun. and manage reserves. The pending development is called The proximity of Mandalay State Beach As discussed above, this unit is North Shore at Mandalay and would to the extant population indicates that essential for the conservation of occur in the eastern portion of this some natural exchange of seeds or Astragalus pycnostachyus var. critical habitat unit. The project pollen could take place if a second lanosissimus because it contains the

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primary constituent elements for extant population; and native habitat introduction of Astragalus Astragalus pycnostachyus var. supporting pollinators). pycnostachyus var. lanosissimus based lanosissimus. The population of CDPR agreed to allow CDFG and on Wilken and Wardlaw’s (2001) Astragalus pycnostachyus var. RSABG establish a research population description of five parameters of habitat lanosissimus at the North Shore at on this site. This effort is still in its early suitability. These parameters closely Mandalay site is the only naturally- stages, and no conclusive data have yet parallel the primary constituent occurring, self-perpetuating population been retrieved. Because the area is elements, so one or more of the of the species in existence. It has currently operated by CDPR and is elements are represented at this site. provided all of the initial propagules for public land, there is opportunity to The diverse native vegetation provides establishing research populations of the work with the State to develop for a robust pollinator community. The species at other sites, and continues to reintroduction strategies for Astragalus unit is bordered by a residential be the source of genetic variability for pycnostachyus var. lanosissimus and to community where nonnative snails future propagation. The research form manageable reserves. This unit is were observed; protection is required for populations at McGrath State Beach and also one of the last known places where herbivory by snails on Astragalus Carpinteria Marsh are not intended to the subspecies was observed growing pycnostachyus var. lanosissimus plants. become new populations for the naturally, and it is close to the extant This site in Santa Barbara County is recovery of the species, but were population and shares many of the near the range of the subspecies as established to generate data on the broader climatic and habitat features of predicted by the historical collections species’ needs when such introductions that site. and described by Skinner and Pavlik for recovery begin. Their persistence is As discussed above, this unit is (1994), who list the known counties as uncertain, and we have observed some essential for the conservation of Ventura, Los Angeles, and Orange. We failures (see Background section). Astragalus pycnostachyus var. have included this unit because, Consequently, the population of lanosissimus because it once supported although it is outside the historical Astragalus pycnostachyus var. a population Astragalus pycnostachyus range for Astragalus pycnostachyus var. lanosissimus on the North Shore at var. lanosissimus until it was extirpated lanosissimus: (1) Insufficient suitable Mandalay site is currently the only one in 1967. It contains the primary habitat for the subspecies remains of which we can be relatively certain constituent elements for Astragalus within its historical range; and (2) the that the plants will persist. If this pycnostachyus var. lanosissimus. It area has habitat features essential to the population is extirpated, and the includes habitat that is necessary for the conservation of the subspecies, which research populations ultimately fail, all expansion of the only known suggests a high potential for successful of the remaining individuals of population, which may become establishment of a new population Astragalus pycnostachyus var. nonviable in the future. It contains (Wilken and Wardlaw 2001). This unit lanosissimus will exist as seeds in habitat features that are essential for this is essential for the conservation of collections or propagated in species including, but not limited to, Astragalus pycnostachyus var. greenhouses. The designation of the high diversity of native plants, open lanosissimus because it supports the North Shore at Mandalay site as critical canopy, sandy dune hollows, seep pollinators and other ecological habitat recognizes that this population margin areas, subterranean water table. processes for Astragalus pycnostachyus is essential to the species’ conservation. This central unit is geographically var. lanosissimus. It contains habitat This southernmost unit is separated from other critical habitat features that are essential for this geographically separated from other within Astragalus pycnostachyus var. species including, but not limited to, critical habitat within its historical lanosissimus historical range. This will dominant vegetation composed of a range. This will reduce the likelihood of reduce the likelihood of all populations shrub canopy less than 75 percent; all populations being destroyed by one being destroyed by one naturally absence of competitive annual or naturally occurring catastrophic event. occurring catastrophic event. perennial exotic plants; water table in McGrath Unit Carpinteria Salt Marsh Unit close proximity; soil type; and native habitat supporting pollinators. Seedling The site within McGrath Beach State The Carpinteria Salt Marsh Unit Park is adjacent to McGrath Lake on the extends from the Southern Pacific recruitment has been observed at this leeward side of the southern end of the Railroad tracks south and west to Sand site in the research population. This lake, between the lake and Harbor Point Drive and Santa Monica Creek and northernmost unit is geographically Boulevard. The unit covers 62 ac (25 is approximately 205 ac (83 ha) in size. separated from other critical habitat. ha). It includes 35 ac (14 ha) of private The entire unit is managed by the UC, This will reduce the likelihood of all land and 27 ac (11 ha) of State-owned Santa Barbara. populations being destroyed by one land managed by CDPR. This unit includes saltmarsh habitat, naturally occurring catastrophic event. Of the sites they examined, Wilken which is essential to support the Effects of Critical Habitat Designation and Wardlaw (2001) identify the pollinators and other ecological McGrath Lake area as having the best processes that Astragalus Section 7 Consultation combination of habitat characteristics pycnostachyus var. lanosissimus Section 7(a) of the Act requires similar to that of the extant population requires for its survival. The research Federal agencies, including the Service, of Astragalus pycnostachyus var. population of Astragalus pycnostachyus to ensure that actions they fund, lanosissimus and its closest relative, var. lanosissimus was introduced in authorize, permit, or carry out do not Astragalus pycnostachyus var. April 2002 into a portion of the unit. As destroy or adversely modify critical pycnostachyus based upon five of February 2003, 44 percent (68) of the habitat. In our regulations at 50 CFR parameters (i.e., dominant vegetation 155 original plants survived. By June 402.02, we define destruction or adverse composed of a shrub canopy less than 2003, only 20 seedlings had been modification as ‘‘a direct or indirect 75 percent; absence of competitive produced by plants at one of the alteration that appreciably diminishes annual or perennial exotic plants; water planting sites. We have determined that the value of critical habitat for both the table in close proximity; soil types this area contains the primary survival and recovery of a listed species. consistent with that at the site of the constituent elements necessary for the Such alterations include, but are not

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limited to: Alterations adversely provide ‘‘reasonable and prudent constituent elements to the extent that modifying any of those physical or alternatives’’ to the project, if any are the value of critical habitat for the biological features that were the basis identifiable. Reasonable and prudent conservation of the subspecies is for determining the habitat to be alternatives are defined at 50 CFR appreciably reduced. We note that such critical.’’ However, in a March 15, 2001, 402.02 as alternative actions identified activities may also jeopardize the decision of the United States Court of during consultation that can be continued existence of the subspecies. Appeals for the Fifth Circuit (Sierra implemented in a manner consistent Activities that, when carried out, Club v. U.S. Fish and Wildlife Service et with the intended purpose of the action, funded, or authorized by a Federal al., 245 F.3d 434), the court found our that are consistent with the scope of the agency, may affect critical habitat and definition of destruction or adverse Federal agency’s legal authority and require that a section 7 consultation be modification to be invalid. In response jurisdiction, that are economically and conducted include, but are not limited to this decision, we are reviewing the technologically feasible, and that the to, the following: regulatory definition of adverse Director believes would avoid (1) Alteration of existing hydrology by modification in relation to the destruction or adverse modification of lowering the groundwater table through conservation of the species. critical habitat. Reasonable and prudent surface changes or pumping of Section 7(a) of the Act requires alternatives can vary from slight project groundwater, or redirection of Federal agencies, including the Service, modifications to extensive redesign or freshwater sources through diverting to evaluate their actions with respect to relocation of the project. surface waters (e.g., channelization); any species that is proposed or listed as Regulations at 50 CFR 402.16 require (2) Compaction of soil through the endangered or threatened, and with Federal agencies to reinitiate establishment of trails or roads; respect to its critical habitat, if any is consultation on previously reviewed (3) Placement of structures or proposed or designated. Regulations actions under certain circumstances, hardscape (e.g., pavement, concrete, implementing this interagency including instances where critical nonnative rock or gravel); cooperation provision of the Act are habitat is subsequently designated and (4) Removal of native vegetation that codified at 50 CFR part 402. Section the Federal agency has retained reduces native plant cover to below 50 7(a)(4) of the Act requires Federal discretionary involvement or control percent; agencies to confer with us on any action over the action or such discretionary (5) Introduction of nonnative that is likely to jeopardize the continued involvement or control is authorized by vegetation or creation of conditions that existence of a species proposed for law. Consequently, some Federal encourage the growth of nonnatives, listing or result in destruction or agencies may request reinitiation of such as irrigation, landscaping, soil adverse modification of proposed consultation or conference with us on disturbance, addition of nutrients, etc.; critical habitat. Conference reports actions for which formal consultation (6) Use of pesticides or other provide conservation recommendations has been completed, if those actions chemicals that can directly affect to assist the agency in eliminating may affect designated critical habitat, or Astragalus pycnostachyus var. conflicts that may be caused by the adversely modify or destroy proposed lanosissimus, its associated native proposed action. The conservation critical habitat. vegetation, or pollinators; recommendations in a conference report Activities on Federal lands that may (7) Introduction of nonnative snails or are advisory. affect Astragalus pycnostachyus var. Argentine ants or creation of conditions We may issue a formal conference lanosissimus or its critical habitat will favorable to these species. Such report if requested by a Federal agency. require section 7 consultation. Activities conditions arise as a result of Formal conference reports include an on private or State lands requiring a landscaping with nonnative opinion that is prepared according to 50 permit from a Federal agency, such as groundcover plants, irrigation, or other CFR 402.14, as if the species was listed a permit from the U.S. Army Corps of activities that increase moisture and or critical habitat designated. We may Engineers (Corps) under section 404 of food availability for these nonnative adopt the formal conference report as the Clean Water Act, a section species that have been detrimental to the biological opinion when the species 10(a)(1)(B) permit from the Service, or the existing population; is listed or critical habitat designated, if some other Federal action, including (8) Activities that isolate the plants or no substantial new information or funding (e.g., Federal Highway their populations from neighboring changes in the action alter the content Administration, Environmental vegetation or reduce the size of natural of the opinion (50 CFR 402.10(d)). Protection Agency (EPA), or Federal open spaces, and thus interfere with If a species is listed or critical habitat Emergency Management Authority ecological processes that rely upon is designated, section 7(a)(2) of the Act funding), would also be subject to the connectivity with adjacent habitat, such requires Federal agencies to ensure that section 7 consultation process. Federal as maintaining pollinator populations activities they authorize, fund, or carry actions not affecting listed species or and seed dispersal; and out are not likely to jeopardize the critical habitat and actions on non- (9) Soil disturbance that damages or continued existence of such a species or Federal and private lands that are not interferes with the seedbank of the to destroy or adversely modify its federally funded, authorized, or subspecies, such as discing, tilling, critical habitat. If a Federal action may permitted do not require section 7 grading, removal, or stockpiling. affect a listed species or its critical consultation. We recognize that designation of habitat, the responsible Federal agency Section 4(b)(8) of the Act requires us critical habitat may not include all of (action agency) must enter into to evaluate briefly and describe, in any the habitat areas that may eventually be consultation with us. Through this proposed or final regulation that determined to be necessary for the consultation, we would ensure that the designates critical habitat, those recovery of the species. Critical habitat permitted actions do not destroy or activities involving a Federal action that designations do not signal that habitat adversely modify critical habitat. may adversely modify such habitat or outside the designation is unimportant If we issue a biological opinion that may be affected by such or not required for recovery. Areas concluding that a project is likely to designation. Activities that may destroy outside the critical habitat designation result in the destruction or adverse or adversely modify critical habitat will continue to be subject to modification of critical habitat, we also would be those that alter the primary conservation actions that may be

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implemented under section 7(a)(1) of from the consultation. Indirect impacts analysis estimates that over the next 10 the Act and to the regulatory protections are secondary costs and benefits not years, the designation (co-extensive afforded by the section 7(a)(2) jeopardy directly related to operation of the Act. with the listing) will likely not result in standard and the applicable Examples of indirect impacts include section 7 consultations in any of the prohibitions of section 9 of the Act, as potential effects to property values, designated three units. Therefore, costs determined on the basis of the best redistricting of land from agricultural or associated with section 7 available information at the time of the urban to conservation, and social implementation are anticipated to be $0. action. welfare benefits of ecological Similarly, the benefits of designation, Several other species that are listed improvements. which may include educational benefits under the Act have been documented to The categories of potential direct and that are difficult to quantify, are also occur in the same general areas as the indirect costs and benefits considered in limited. The cleanup of the Mandalay current distribution of Astragalus the analysis included the costs unit will be conducted by the developer pycnostachyus var. lanosissimus. These associated with: (1) Conducting section and overseen by the Los Angeles Water include: brown pelican (Pelecanus 7 consultations, including incremental Quality Control Board. There might occidentalis); western snowy plover consultations and technical assistance; have been a Federal nexus had the EPA (Charadrius alexandrinus nivosus); (2) modifications to projects, activities, overseen or funded the cleanup. California least tern (Sterna antillarum or land uses resulting from the section However, the EPA has determined that browni); light-footed clapper rail (Rallus 7 consultations; (3) uncertainty and the State’s provision over the site longirostris levipes); and salt marsh public perceptions resulting from the cleanup was sufficient, and therefore, bird’s beak (Cordylanthus maritimus designation of critical habitat including there will not be a Federal nexus ssp. maritimus). potential effects on property values and (Economic and Planning Systems, Inc. If you have questions regarding the interaction of State and local laws; 2003). whether specific activities will likely and (4) potential offsetting beneficial A copy of the final economic analysis constitute adverse modification of costs associated with critical habitat, and supporting documents are included critical habitat, contact the Field including educational benefits. The in our administrative record and may be Supervisor, Ventura Fish and Wildlife most likely economic effects of critical obtained by contacting our Ventura Fish Office (see FOR FURTHER INFORMATION habitat designation are on activities and Wildlife Office (see ADDRESSES CONTACT section). Requests for copies of funded, authorized, or carried out by a section). the regulations on listed wildlife and Federal agency (i.e., direct costs). inquiries about prohibitions and permits Following the close of the comment Required Determinations may be addressed to the U.S. Fish and period on the draft economic analysis, Regulatory Planning and Review Wildlife Service, Portland Regional an addendum was completed. We Office, 911 NE 11th Avenue, Portland, received no comments on the draft In accordance with Executive Order OR 97232–4181 (503/231–6131; economic analysis. The draft economic 12866, the Office of Management and facsimile 503/231–6243). analysis and addendum addressed the Budget (OMB) has determined that this impact of the proposed critical habitat critical habitat designation is not a Relationship to Habitat Conservation designation that may be attributable significant regulatory action. This rule Plans coextensively to the listing of the will not have an annual economic effect Currently, no HCPs exist that include subspecies. Because of the uncertainty of $100 million or more or adversely Astragalus pycnostachyus var. about the benefits and economic costs affect any economic sector, lanosissimus as a covered species. resulting solely from critical habitat productivity, competition, jobs, the designations, we believe that it is environment, or other units of Economic Analysis reasonable to estimate the economic government. This designation will not Following the publication of the impacts of a designation utilizing this create inconsistencies with other proposed critical habitat designation on single baseline. It is important to note agencies’ actions or otherwise interfere October 9, 2002, a draft economic that the inclusion of impacts with an action taken or planned by analysis was prepared to estimate the attributable coextensively to the listing another agency. It will not materially potential direct and indirect economic does not convert the economic analysis affect entitlements, grants, user fees, impacts associated with the designation, into a tool to be used in deciding loan programs, or the rights and in accordance with the recent decision whether or not a species should be obligations of their recipients. Finally, in N.M. Cattlegrowers Ass’n v. U.S. Fish added to the Federal list of threatened this designation will not raise novel and Wildlife Serv., 248 F.3d 1277 (10th and endangered species. legal or policy issues. Accordingly, Cir. 2001) (Economic and Planning The critical habitat designations for OMB has not formally reviewed this Systems 2003). The draft analysis was Astragalus pycnostachyus var. final critical habitat designation. made available for public review and lanosissimus include State and private comment on March 20, 2003 (68 FR lands only. No Federal lands are Regulatory Flexibility Act (5 U.S.C. 601 13663), and we accepted comments on involved. The estimates for section 7 et seq.) the draft analysis until April 21, 2003. consultation in the economic analysis Under the Regulatory Flexibility Act Our draft economic analysis evaluated were based upon activities that are (RFA) (5 U.S.C. 601 et seq., as amended the potential direct and indirect ‘‘reasonably foreseeable,’’ which is by the Small Business Regulatory economic impacts associated with the defined as the time period from the Enforcement Fairness Act (SBREFA) of proposed critical habitat designation for present and for the next 10 years. 1996), whenever an agency is required Astragalus pycnostachyus var. Beyond 10 years, the numbers of to publish a notice of rulemaking for lanosissimus over the next 10 years. projects and the potential for section 7 any proposed or final rule, it must Direct impacts are those related to consultations become increasingly prepare and make available for public consultations under section 7 of the Act. speculative. comment a regulatory flexibility They include the cost of completing the Together, the draft economic analysis analysis that describes the effects of the section 7 consultation process and and the addendum constitute our final rule on small entities (i.e., small potential project modifications resulting economic analysis. The final economic businesses, small organizations, and

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small government jurisdictions). development, grazing, oil and gas effect to the subspecies or critical However, no regulatory flexibility production, timber harvesting). We habitat. In our experience, the vast analysis is required if the head of the applied the ‘‘substantial number’’ test majority of such projects can be agency certifies the rule will not have a individually to each industry to successfully implemented with at most significant economic impact on a determine if certification is appropriate. minor changes that avoid significant substantial number of small entities. In estimating the numbers of small economic impacts to project SBREFA amended the RFA to require entities potentially affected, we also proponents. Federal agencies to provide a statement considered whether their activities have Based on our experience with section of the factual basis for certifying that a any Federal involvement; some kinds of 7 consultations for all listed species, rule will not have a significant activities are unlikely to have any virtually all projects—including those economic effect on a substantial number Federal involvement and so will not be that, in their initial proposed form, of small entities. SBREFA also amended affected by critical habitat designation. would result in jeopardy or adverse the RFA to require a certification The final economic analysis found that modification determinations in section statement. the designation of critical habitat will 7 consultations—can be implemented According to the Small Business not affect a single entity, and therefore, successfully with, at most, the adoption Administration, small entities include the designation will not result in a of reasonable and prudent alternatives. small organizations, such as significant economic impact on a These measures, by definition, must be independent non-profit organizations, substantial number of small entities. economically feasible and within the and small governmental jurisdictions, Designation of critical habitat only scope of authority of the Federal agency including school boards and city and affects activities conducted, funded, or involved in the consultation. As we town governments that serve fewer than permitted by Federal agencies; non- have no consultation history for 50,000 residents, as well as small Federal activities are not affected by the Astragalus pycnostachyus var. businesses (13 CFR 121 and http:// designation if they lack a Federal nexus. lanosissimus, we can only describe the www.sba.gov/size/). Small businesses In areas where the subspecies is present, general kinds of actions that may be include manufacturing and mining Federal agencies funding, permitting, or identified in future reasonable and concerns with fewer than 500 implementing activities are already prudent alternatives. These are based on employees, wholesale trade entities required to avoid jeopardizing the our understanding of the needs of the with fewer than 100 employees, retail continued existence of Astragalus subspecies and the threats it faces, and service businesses with less than $5 pycnostachyus var. lanosissimus especially as described in the final million in annual sales, general and through consultation with us under listing rule and in this final critical heavy construction businesses with less section 7 of the Act. Following habitat designation, as well as our than $27.5 million in annual business, finalization of this critical habitat experience with similar listed plants in special trade contractors doing less than designation, Federal agencies must also California. In addition, the State of $11.5 million in annual business, and ensure that their activities do not California listed Astragalus agricultural businesses with annual destroy or adversely modify designated pycnostachyus var. lanosissimus as an sales less than $750,000. To determine critical habitat through consultation endangered species under the California if potential economic impacts to these with us. However, this will not result in Endangered Species Act of 1978, and we small entities are significant, we any additional regulatory burden on have also considered the kinds of consider the types of activities that Federal agencies or their applicants actions required through State might trigger regulatory impacts under where the subspecies is present because regulations for this subspecies. The this rule as well as the types of project conservation already would be required kinds of actions that may be included in modifications that may result. due to the presence of a listed species. future reasonable and prudent SBREFA does not explicitly define In unoccupied areas, or areas of alternatives include conservation set- either ‘‘substantial number’’ or uncertain occupancy, designation of asides, management of competing ‘‘significant economic impact.’’ critical habitat could trigger additional nonnative species, restoration of Consequently, to assess whether a review of Federal activities under degraded habitat, construction of ‘‘substantial number’’ of small entities is section 7 of the Act, and may result in protective fencing, and regular affected by this designation, this additional requirements on Federal monitoring. These measures are not analysis considers the relative number activities to avoid destroying or likely to result in a significant economic of small entities likely to be impacted in adversely modifying critical habitat. impact to project proponents. the area. Similarly, this analysis Astragalus pycnostachyus var. As required under section 4(b)(2) of considers the relative cost of lanosissimus has only been listed since the Act, we have conducted an analysis compliance on the revenues/profit June 2001, and no formal consultations of the potential economic impacts and margins of small entities in determining involving the subspecies have taken benefits of this critical habitat whether or not entities incur a place. Therefore, for the purposes of this designation, and made that analysis ‘‘significant economic impact.’’ Only review and certification under the RFA, available for public review and small entities that are expected to be we are assuming that any future comment before finalizing this directly affected by the designation are consultations in the areas proposed for designation. Based upon the economic considered in this portion of the critical habitat that are considered analysis, we conclude that the economic analysis. This approach is consistent unoccupied will be due to the critical effects of the final rule for Astragalus with several judicial opinions related to habitat designation. Should a federally pycnostachyus var. lanosissimus will be the scope of the RFA (Mid-Tex Electric funded, permitted, or implemented less than those identified for other Co-Op, Inc. v. F.E.R.C. and American project be proposed that may affect California plant critical habitat Trucking Associations, Inc. v. EPA). designated critical habitat, we will work designations because the amount of To determine if the rule would affect with the Federal action agency and any private land involved is limited, and the a substantial number of small entities, applicant, through section 7 plant occurs naturally in only one of the we considered the number of small consultation, to identify ways to units. Further, no Federal nexus exists entities affected within particular types implement the proposed project while for a proposed development on the of economic activities (e.g., housing minimizing or avoiding any adverse private land within the designated

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critical habitat. The designation of enterprises to compete with foreign- Interior policy, we requested critical habitat in areas not occupied by based enterprises. Please refer to the information from, and coordinated A. pycnostachyus var. lanosissimus final economic analysis for a discussion development of this critical habitat could result in extra costs involved with of the effects of this determination. designation with, appropriate State consultations that may not have Resource Agencies in California. The Executive Order 13211 occurred were it not for the designation of critical habitat in areas designations. However, one unit is On May 18, 2001, the President issued currently occupied by Astragalus entirely State-owned and the burden of Executive Order (E.O.) 13211 on pycnostachyus var. lanosissimus consultation should not cause economic regulations that significantly affect imposes no additional restrictions hardship on private entities. energy supply, distribution, and use. beyond those currently in place and, Efforts to establish Astragalus E.O. 13211 requires agencies to prepare therefore, has little incremental impact pycnostachyus var. lanosissimus on Statements of Energy Effects when on State and local governments and unoccupied sites would be mostly undertaking certain actions. This rule is their activities. The designation of funded by Federal, State, and non- not a significant regulatory action under critical habitat in unoccupied areas may governmental organizations, and would E.O. 13211, and it is not expected to require consultation under section 7 of likely not require private funding. significantly affect energy supplies, the Act on non-Federal lands (where a Consequently, we conclude that the distribution, or use because none of Federal nexus occurs) that might economic effects of the designation of those activities currently occur within otherwise not have occurred. The critical habitat for Astragalus the critical habitat units or would be designation may have some benefit to pycnostachyus var. lanosissimus are affected by the designation. Therefore, California Department of Parks and likely to be minimal. this action is not a significant energy Recreation in that the areas essential to In summary, we have concluded that action, and no Statement of Energy the conservation of this subspecies are this final rule would not result in a Effects is required. more clearly defined, and the primary significant economic effect on a constituent elements of the habitat Unfunded Mandates Reform Act (2 substantial number of small entities. necessary to the conservation of this U.S.C. 1501 et seq.) The designation includes only one subspecies are specifically identified. privately-owned parcel for which a In accordance with the Unfunded While this definition and identification project has been proposed and for Mandates Reform Act (2 U.S.C. 1501 et do not alter where and what federally which there is no Federal involvement seq.) sponsored activities may occur, they or section 7 consultation required. This (a) This rule will not ‘‘significantly or may assist local governments in long- rule would result in project uniquely’’ affect small governments. A range planning (rather than waiting for modifications only when proposed Small Government Agency Plan is not case-by-case section 7 consultations to Federal activities would destroy or required. Small governments will be occur). adversely modify critical habitat. While affected only to the extent that they this may occur, it is not expected to must ensure that any programs Civil Justice Reform affect any small entities. Even if a small involving Federal funds, permits, or In accordance with Executive Order entity is affected, we do not expect it to other authorized activities, will not 12988, the Department of the Interior’s result in a significant economic impact, adversely modify the critical habitat. Office of the Solicitor has determined as the measures included in reasonable (b) This rule will not produce a that this rule does not unduly burden and prudent alternatives must be Federal mandate of $100 million or the judicial system and does meet the economically feasible and consistent greater in any year; that is, it is not a requirements of sections 3(a) and 3(b)(2) with the proposed action. The kinds of ‘‘significant regulatory action’’ under of the Order. We have designated measures we anticipate we would the Unfunded Mandates Reform Act. critical habitat in accordance with the recommend can usually be The designation of critical habitat provisions of the Endangered Species implemented at low cost. Therefore, we imposes no obligations on Tribal, State Act. The rule uses standard property are certifying that the designation of or local governments or private entities. descriptions and identifies the primary critical habitat for Astragalus Takings constituent elements within the pycnostachyus var. lanosissimus will designated areas to assist the public in not have a significant economic impact In accordance with Executive Order understanding the habitat needs of on a substantial number of small 12630 (‘‘Government Actions and Astragalus pycnostachyus var. entities, and a final regulatory flexibility Interference with Constitutionally lanosissimus. analysis is not required. Protected Private Property Rights’’), we have analyzed the potential takings Paperwork Reduction Act of 1995 (44 Small Business Regulatory Enforcement implications of designating U.S.C. 3501 et seq.) Fairness Act (5 U.S.C. 804(2)) approximately 420 ac (170 ha) of lands This rule does not contain any new or Under SBREFA, this rule is not a in Santa Barbara and Ventura Counties, revised information collections for major rule (see Regulatory Flexibility California, as critical habitat for which OMB approval is required under Act section). Our assessment of the Astragalus pycnostachyus var. the Paperwork Reduction Act. An economic effects of this designation is lanosissimus in a takings implications agency may not conduct or sponsor, and described in the economic analysis. assessment. The takings assessment a person is not required to respond to, Based upon the effects identified in the concludes that this final rule does not a collection of information unless it economic analysis, this rule will not pose significant takings implications. displays a currently valid OMB control have an effect on the economy of $100 number. million or more, will not cause a major Federalism increase in costs or prices for In accordance with Executive Order National Environmental Policy Act consumers, and will not have significant 13132, this rule does not have We have determined that an adverse effects on competition, significant Federalism effects. A Environmental Assessment and/or an employment, investment, productivity, Federalism assessment is not required. Environmental Impact Statement as innovation, or the ability of U.S.-based In keeping with Department of the defined by the National Environmental

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Policy Act of 1969 need not be prepared Government-to-Government basis. The Regulation Promulgation in connection with regulations adopted designation of critical habitat for pursuant to section 4(a) of the Astragalus pycnostachyus var. I Accordingly, we amend part 17, Endangered Species Act, as amended. lanosissimus does not contain any subchapter B of chapter I, title 50 of the We published a notice outlining our Tribal lands or lands that we have Code of Federal Regulations, as set forth reason for this determination in the identified as impacting Tribal trust below: Federal Register on October 25, 1983 resources. (48 FR 49244). This final determination PART 17—[AMENDED] does not constitute a major Federal References Cited action significantly affecting the quality A complete list of all references cited I 1. The authority citation for part 17 of the human environment. herein, as well as others, is available continues to read as follows: upon request from the Ventura Fish and Government-to-Government Authority: 16 U.S.C. 1361–1407; 16 U.S.C. Wildlife Office (see ADDRESSES section). Relationship With Tribes 1531–1544; 16 U.S.C. 4201–4205; Pub. L. 99– In accordance with the President’s Author 625, 100 Stat. 3500, unless otherwise noted. memorandum of April 29, 1994, The primary author of this final rule I 2. In § 17.12(h), in the table, revise the ‘‘Government-to-Government Relations is Rick Farris, Ventura Fish and Wildlife entry for Astragalus pycnostachyus var. with Native American Tribal Office (see ADDRESSES section). Governments’’ (59 FR 22951), Executive lanosissimus under ‘‘FLOWERING Order 13175, and the Department of the List of Subjects in 50 CFR Part 17 PLANTS’’ to read as follows: Interior’s manual at 512 DM 2, we Endangered and threatened species, § 17.12 Endangered and threatened plants. readily acknowledge our responsibility Exports, Imports, Reporting and to communicate meaningfully with recordkeeping requirements, * * * * * federally recognized Tribes on a Transportation. (h) * * *

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

FLOWERING PLANTS

******* Astragalus Ventura Marsh milk- U.S.A. (CA) ...... Fabaceae—Pea E 708 17.96(a) NA pycnostachyus vetch. Family. var. lanosissimus.

*******

I 3. In § 17.96, amend paragraph (a) by sloughs, or depressions that may 3787330; 293017, 3787330; 293122, adding critical habitat for Astragalus support stands of Salix lasiolepis, 3787270; 293269, 3787190; 293331, pycnostachyus var. lanosissimus in Typha spp., and Scirpus spp.; 3787150; 293362, 3787140; 293399, alphabetical order under Family (iv) Soils that are fine-grained, 3787130; 293570, 3787080; 293640, Fabaceae to read as follows: composed primarily of sand with some 3787050; 293665, 3787040; 293686, clay and silt, yet are well-drained; and 3787020; 293699, 3786990; 293707, § 17.96 Critical habitat—plants. (v) Soils that do not exhibit a white 3786960; 293701, 3786620; 293713, (a) * * * crystalline crust that would indicate 3786580; 293732, 3786540; 293760, Family Fabaceae: Astragalus saline or alkaline conditions. 3786520; 293851, 3786460; 293903, pycnostachyus var. lanosissimus (3) Critical habitat does not include 3786420; 293928, 3786380; 293936, (Ventura Marsh milk-vetch) existing features and structures, such as 3786360; 293381, 3786370. (1) Critical habitat units are depicted buildings, roads, aqueducts, railroads, (ii) Mandalay Unit B. From USGS for Santa Barbara and Ventura Counties, airport runways and buildings, other 1:24,000 quadrangle map Oxnard, lands California, on the maps below. paved areas, lawns, and other urban bounded by the following UTM zone 11 (2) The primary constituent elements landscaped areas not containing one or NAD83 coordinates (E,N): 293352, of critical habitat for Astragalus more of the primary constituent 3786380; 293044, 3786380; 292798, pycnostachyus var. lanosissimus are as elements. 3786960; 292761, 3787040; 293070, follows: (4) Critical Habitat Map Units. Data 3787030; 293352, 3786380. (i) Vegetation cover of at least 50 layers defining map units were created (iii) McGrath Unit. From USGS percent but not exceeding 75 percent, on a base of USGS 7.5′ quadrangles, and 1:24,000 quadrangle map Oxnard, lands consisting primarily of known critical habitat units were then mapped bounded by the following UTM zone 11 associated native species, including but using Universal Transverse Mercator NAD83 coordinates (E,N): 292406, not limited to, Baccharis salicifolia, (UTM) coordinates. 3788600; 292474, 3788440; 292752, Baccharis pilularis, Salix lasiolepis, (5) McGrath and Mandalay Units. 3787790; 292716, 3787780; 292704, Lotus scoparius, and Ericameria Ventura County, California. 3787770; 292702, 3787770; 292717, ericoides; (i) Mandalay Unit A. From USGS 3787730; 292718, 3787720; 292715, (ii) Low densities of nonnative annual 1:24,000 quadrangle map Oxnard, lands 3787710; 292692, 3787680; 292725, plants and shrubs; bounded by the following UTM zone 11 3787600; 292530, 3787600; 292415, (iii) The presence of a high water NAD83 coordinates (E,N): 293381, 3787630; 292394, 3787670; 292400, table, either fresh or brackish, as 3786370; 293036, 3787170; 292994, 3787690; 292403, 3787710; 292407, evidenced by the presence of channels, 3787290; 292974, 3787330; 292995, 3787720; 292412, 3787770; 292412,

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3787800; 292412, 3787820; 292409, 3788120; 292313, 3788150; 292310, 3788450; 292305, 3788480; 292301, 3787840; 292401, 3787900; 292375, 3788170; 292312, 3788230; 292309, 3788490; 292295, 3788500; 292297, 3787940; 292348, 3787960; 292338, 3788250; 292301, 3788260; 292302, 3788520; 292304, 3788550; 292306, 3787980; 292338, 3788000; 292343, 3788280; 292304, 3788290; 292308, 3788560; 292406, 3788600. 3788010; 292353, 3788030; 292358, 3788300; 292311, 3788320; 292307, (iv) Map 1—McGrath and Mandalay 3788040; 292360, 3788050; 292360, 3788330; 292308, 3788350; 292310, Units—follows: 3788060; 292354, 3788070; 292338, 3788380; 292310, 3788390; 292310, 3788070; 292326, 3788090; 292322, 3788400; 292311, 3788420; 292306, BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C

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(6) Carpinteria Salt Marsh. Santa coordinates (E,N): 267531, 3809510; 267600, 3809170; 267613, 3809210; Barbara and Ventura Counties, 267588, 3809470; 267654, 3809440; 267627, 3809250; 267638, 3809260. California. 267708, 3809400; 267767, 3809360; (iv) Carpinteria Salt Marsh Unit D. (i) Carpinteria Salt Marsh Unit A. 267755, 3809360; 267733, 3809360; Ventura County, California. From USGS Santa Barbara County, California. From 267710, 3809360; 267684, 3809360; 1:24,000 quadrangle map Carpinteria, USGS 1:24,000 quadrangle map 267662, 3809340; 267638, 3809310; lands bounded by the following UTM Carpinteria, lands bounded by the 267621, 3809290; 267602, 3809270; zone 11 NAD83 coordinates (E,N): following UTM zone 11 NAD83 267587, 3809240; 267577, 3809220; 266801, 3809220; 266818, 3809220; coordinates (E,N): 266039, 3810060; 267563, 3809180; 267555, 3809150; 266839, 3809220; 266859, 3809220; 266166, 3810060; 266335, 3810050; 267544, 3809120; 267526, 3809100; 266883, 3809220; 266912, 3809220; 266449, 3810040; 266521, 3810040; 267504, 3809090; 267480, 3809080; 266939, 3809230; 266960, 3809230; 266572, 3810030; 266621, 3810010; 267458, 3809080; 267434, 3809090; 266988, 3809230; 267008, 3809230; 266711, 3809980; 266784, 3809950; 267413, 3809100; 267387, 3809110; 267025, 3809220; 267044, 3809210; 266912, 3809880; 267485, 3809530; 267357, 3809120; 267342, 3809130; 267062, 3809200; 267085, 3809180; 267463, 3809500; 267453, 3809470; 267318, 3809140; 267270, 3809140; 267105, 3809170; 267127, 3809150; 267428, 3809440; 267403, 3809390; 267275, 3809160; 267291, 3809170; 267149, 3809140; 267171, 3809130; 267381, 3809360; 267343, 3809300; 267303, 3809190; 267309, 3809210; 267190, 3809120; 267211, 3809120; 267290, 3809250; 267255, 3809190; 267319, 3809220; 267342, 3809240; 267239, 3809120; 267262, 3809120; 267243, 3809170; 267214, 3809160; 267365, 3809260; 267384, 3809280; 267290, 3809120; 267312, 3809120; 267185, 3809170; 267148, 3809200; 267411, 3809330; 267435, 3809360; 267331, 3809110; 267323, 3809100; 267094, 3809240; 267058, 3809260; 267454, 3809390; 267469, 3809420; 267314, 3809090; 267305, 3809080; 267023, 3809260; 266973, 3809260; 267490, 3809470; 267508, 3809490; 267294, 3809060; 267290, 3809060; 266932, 3809250; 266889, 3809250; 267531, 3809510. 267279, 3809060; 267271, 3809060; 266813, 3809250; 266793, 3809260; (iii) Carpinteria Salt Marsh Unit C. 267258, 3809070; 267240, 3809070; 266772, 3809270; 266720, 3809290; Santa Barbara County, California. From 267223, 3809070; 267208, 3809070; 266690, 3809300; 266655, 3809310; USGS 1:24,000 quadrangle map 267190, 3809080; 267169, 3809090; 266644, 3809330; 266645, 3809350; Carpinteria, lands bounded by the 267147, 3809100; 267125, 3809100; 266602, 3809360; 266580, 3809380; following UTM zone 11 NAD83 267099, 3809100; 267079, 3809110; 266544, 3809420; 266498, 3809480; coordinates (E,N): 267638, 3809260; 267061, 3809120; 267047, 3809140; 266456, 3809530; 266408, 3809590; 267658, 3809240; 267668, 3809240; 267029, 3809150; 267022, 3809160; 266356, 3809650; 266320, 3809690; 267775, 3809120; 267611, 3808980; 267012, 3809170; 266993, 3809170; 266264, 3809750; 266206, 3809810; 267584, 3808950; 267538, 3808970; 266970, 3809180; 266940, 3809180; 266162, 3809860; 266122, 3809900; 267516, 3808980; 267504, 3808960; 266912, 3809180; 266883, 3809190; 266081, 3809940; 266053, 3809960; 267488, 3808950; 267462, 3808960; 266862, 3809190; 266843, 3809180; 266042, 3809980; 266033, 3809990; 267437, 3808980; 267408, 3809010; 266823, 3809180; 266810, 3809180; 266032, 3810010; 266037, 3810060; 267386, 3809020; 267354, 3809040; 266795, 3809180; 266787, 3809180; 266039, 3810060. 267344, 3809070; 267320, 3809080; 266781, 3809190; 266775, 3809200; (ii) Carpinteria Salt Marsh Unit B. 267337, 3809110; 267410, 3809070; 266773, 3809210; 266776, 3809220; Santa Barbara County, California. From 267443, 3809060; 267461, 3809050; 266783, 3809220; 266791, 3809230; USGS 1:24,000 quadrangle map 267487, 3809050; 267513, 3809060; 266801, 3809220. Carpinteria, lands bounded by the 267532, 3809070; 267548, 3809080; (v) Map 2—Carpinteria Salt Marsh following UTM zone 11 NAD83 267564, 3809100; 267576, 3809120; Unit—follows:

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* * * * * Dated: May 14, 2004. Paul Hoffman, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 04–11382 Filed 5–19–04; 8:45 am] BILLING CODE 4310–55–C

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