Friday, April 8, 2005

Part V

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Astragalus jaegerianus (Lane Mountain milk-vetch); Final Rule

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DEPARTMENT OF THE INTERIOR rather than by biology, limits our ability Service with little ability to prioritize its to fully evaluate the science involved, activities to direct scarce listing Fish and Wildlife Service consumes enormous agency resources, resources to the listing program actions and imposes huge social and economic with the most biologically urgent 50 CFR Part 17 costs. The Service believes that species conservation needs. RIN 1018–AI78 additional agency discretion would The consequence of the critical allow our focus to return to those habitat litigation activity is that limited Endangered and Threatened Wildlife actions that provide the greatest benefit listing funds are used to defend active and Plants; Designation of Critical to the species most in need of lawsuits, to respond to Notices of Intent Habitat for Astragalus jaegerianus protection. (NOIs) to sue relative to critical habitat, (Lane Mountain milk-vetch) and to comply with the growing number Role of Critical Habitat in Actual of adverse court orders. As a result, AGENCY: Fish and Wildlife Service, Practice of Administering and listing petition responses, the Service’s Interior. Implementing the Act own proposals to list critically ACTION: Final rule. While attention to and protection of imperiled species, and final listing habitat is paramount to successful determinations on existing proposals are SUMMARY: We, the U.S. Fish and conservation actions, we have all significantly delayed. Wildlife Service (Service), are consistently found that, in most The accelerated schedules of court- designating no critical habitat pursuant circumstances, the designation of ordered designations have left the to the Endangered Species Act of 1973, critical habitat is of little additional Service with almost no ability to as amended (Act), for Astragalus value for most listed species, yet it provide for adequate public jaegerianus (Lane Mountain milk- consumes large amounts of conservation participation or to ensure a defect-free vetch). In our April 6, 2004 proposed resources. Sidle (1987) stated, ‘‘Because rulemaking process before making rule, we identified 29,522 acres (ac) the Act can protect species with and decisions on listing and critical habitat (11,947 hectares (ha)) of habitat without critical habitat designation, proposals due to the risks associated essential for the conservation of A. critical habitat designation may be with noncompliance with judicially- jaegerianus located in the Mojave Desert redundant to the other consultation imposed deadlines. This in turn fosters in San Bernardino County, California. requirements of section 7.’’ Currently, a second round of litigation in which However, as a result of our evaluation only 470 species, or 38 percent of the those who fear adverse impacts from of the relationship of essential habitat to 1,253 listed species in the U.S. under critical habitat designations challenge sections 3(5)(A), 4(a)(3), and 4(b)(2) of the jurisdiction of the Service, have those designations. The cycle of the Act, we designate a total of zero designated critical habitat. litigation appears endless, is very acres (0 ac) (zero hectares (0 ha)). We address the habitat needs of all expensive, and in the final analysis DATES: This rule becomes effective on 1,253 listed species through provides relatively little additional June 7, 2005. conservation mechanisms such as protection to listed species. ADDRESSES: Comments and materials listing, section 7 consultations, the The costs resulting from the received, as well as supporting Section 4 recovery planning process, the designation include legal costs, the cost documentation used in preparation of Section 9 protective prohibitions of of preparation and publication of the this final rule are available for public unauthorized take, Section 6 funding to designation, the analysis of the inspection, by appointment, during the States, and the Section 10 incidental economic effects and the cost of normal business hours at the Ventura take permit process. The Service requesting and responding to public Fish and Wildlife Office, U.S. Fish and believes that it is these measures that comment, and in some cases the costs Wildlife Service, 2493 Portola Road, may make the difference between of compliance with the National Suite B, Ventura, CA 93003. The final extinction and survival for many Environmental Policy Act (NEPA). None rule, economic analysis, and map of species. of these costs results in any benefit to proposed critical habitat are also We note, however, that a recent 9th the species that is not already afforded available via the Internet at http:// Circuit judicial opinion, Gifford Pinchot by the protections of the Act ventura.fws.gov. Task Force v. United States Fish and enumerated earlier, and they directly Wildlife Service, has invalidated the reduce the funds available for direct and FOR FURTHER INFORMATION CONTACT: Service’s regulation defining destruction tangible conservation actions. Field Supervisor, Ventura Fish and or adverse modification of critical Background Wildlife Office (telephone 805/644– habitat. We are currently reviewing the 1766; facsimile 805/644–3958). decision to determine what effect it may For background information on the SUPPLEMENTARY INFORMATION: have on the outcome of consultations biology of Astragalus jaegerianus, and a pursuant to Section 7 of the Act. description of previous Federal actions, Designation of Critical Habitat Provides including our determination that Little Additional Protection to Species Procedural and Resource Difficulties in designating critical habitat for this In 30 years of implementing the Act, Designating Critical Habitat species is prudent, please see our April the Service has found that the We have been inundated with 6, 2004, proposed rule (69 FR 18018). designation of statutory critical habitat lawsuits for our failure to designate On November 15, 2001, our decision not provides little additional protection to critical habitat, and we face a growing to designate critical habitat for A. most listed species, while consuming number of lawsuits challenging critical jaegerianus and seven other plant and significant amounts of available habitat determinations once they are wildlife species was challenged in conservation resources. The Service’s made. These lawsuits have subjected the Southwest Center for Biological present system for designating critical Service to an ever-increasing series of Diversity and California Native Plant habitat has evolved since its original court orders and court-approved Society v. Norton (Case No. 01–CV– statutory prescription into a process that settlement agreements, compliance with 2101–IEG (S.D.Cal.)). On July 1, 2002, provides little real conservation benefit, which now consumes nearly the entire the court ordered the Service to is driven by litigation and the courts listing program budget. This leaves the reconsider its not prudent

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determination and if prudent, to designation. Two letters included the Paradise population and Coolgardie propose critical habitat for the species comments or information, but did not population (3.0 mi (5 km)), we have no by September 15, 2003, and, if prudent, express support or opposition to the reasonable cause to believe that genetic to issue a final critical habitat proposed critical habitat designation. exchange occurs between these designation no later than September 15, Comments received were grouped by populations on a regular basis. The 2004. However, prior to completing the source (peer review, Federal agency, intervening habitat between the proposed rule, the Service exhausted local agency, and public comments) and Brinkman Wash-Montana Mine, the funding appropriated by Congress are addressed in the following summary Paradise, and Coolgardie populations for work on critical habitat designations and incorporated into the final rule as does not contain the requisite primary in 2003. On September 8, 2003, the appropriate. We received one request for constituent elements (PCEs, see Primary court issued an order extending the a public hearing, but this request was Constituent Elements section), nor is it publication date of the proposed critical later retracted by the requestor. suitable for the survival of A. habitat designation for A. jaegerianus to jaegerianus. We believe that these Peer Review April 1, 2004, and the final designation populations of A. jaegerianus most to April 1, 2005. In light of Natural In accordance with our policy likely are reproductively isolated. In Resources Defense Council v. U.S. published on July 1, 1994 (59 FR addition, the distances between Department of the Interior, 113 F.3d 34270), we solicited expert opinions populations are greater than would be 1121 (9th Cir. 1997), and the diminished from Sustainable Ecosystems Institute reasonably likely to support genetic threat of overcollection, the Service and three other knowledgeable exchange. All of these factors led us to reconsidered its decision and individuals with scientific expertise that believe these areas between units or determined that it was prudent to included familiarity with the species, populations are not essential to the designate critical habitat for the species. the geographic region in which the conservation of the species and On April 6, 2004, we published a species occurs, or conservation biology therefore we did not through the critical proposed critical habitat designation (69 principles. We received responses from habitat process attempt to establish FR 18018) that included 29,522 ac two of the four peer reviewers. The peer connectivity between these other (11,947 ha). On December 8, 2004, we reviewers generally concurred with our populations. published a notice of availability of the methods and conclusions and provided Comment 2: One peer reviewer draft economic analysis for the additional information, clarifications, commented that stigmatic fouling (a designation of critical habitat and and suggestions to improve the final form of contamination that occurs to reopened the comment period for the critical habitat rule. Peer reviewer flowers, and which could decrease the proposed rule and draft economic comments are addressed in the ability to produce viable seed) by dust analysis. This second comment period following summary and incorporated generated from vehicle traffic has been closed on January 7, 2005. into the final rule as appropriate. observed at a Nevada test site. At this Peer Review Comments site, dust traveled considerable Summary of Comments and distances to rare plant population sites. Recommendations Comment 1: One peer reviewer The peer reviewer recommended that We requested written comments from appreciated our efforts to capture dust generated from the DOD’s training the public on the proposed designation realistic functional habitats through the activities could impact the reproduction of critical habitat for Astragalus inclusion of appropriate buffers in the of Astragalus jaegerianus, and that, jaegerianus in the proposed rule critical habitat designation, but was where necessary, buffers should be published on April 6, 2004 (69 FR concerned that there may not be expanded on the windward sides of the 18018). We also contacted appropriate sufficient connectivity between the critical habitat units to reduce this Federal, State, and local agencies; three units to allow for genetic impact. scientific organizations; and other exchange, and suggested that the Our response: We have contracted interested parties and invited them to intervening areas should be evaluated with the Biological Resources Division comment on the proposed rule. During on a regular basis to ensure the of the United States Geologic Survey the comment period that opened on populations do not become isolated. (USGS) to study the potential effects of April 6, 2004, and closed on May 21, Our response: Three critical habitat dust on the growth (as measured by leaf 2004, we received 11 comment letters units were proposed for the four known length) and rate of photosynthesis of directly addressing the proposed critical populations of Astragalus jaegerianus Astragalus jaegerianus. Preliminary habitat designation: 2 from peer (69 FR 18018). The Goldstone and results indicate that applications of dust reviewers, 4 from Federal agencies, 1 Montana Mine-Brinkman Wash did not affect leaf growth, and from a local agency, and 4 from populations were proposed as one photosynthesis increased; however, organizations or individuals. During the critical habitat unit, preserving existing shoot length decreased (Wijayratne et al. comment period that opened on genetic connectivity between those two 2004). Researchers hypothesize that December 8, 2004, and closed on populations. We believe we had heavily dusted plants compensate by January 7, 2005, we received three sufficient reason to propose contiguous putting more effort into new leaves and comment letters addressing the critical habitat between the Goldstone reducing the availability of resources for proposed critical habitat designation and Montana Mine-Brinkman Wash shoot growth. The potential effects of and the draft economic analysis. Of populations because the 0.5-mile (mi) dust on stigmatic fouling have not been these latter comments, two were from (0.8 kilometers (km)) distance between studied for this species nor do we have Federal agencies, and one was from an them could easily be traversed by specific information concerning other organization. Four of the six total pollinators and seed dispersers (the two dust effects on A. jaegerianus or its comment letters from Federal agencies mechanisms for effecting genetic pollinators. Under the ESA, we base our were from the Department of Defense exchange between populations). critical habitat determinations on the (DOD). Three commenters supported the However, because of the greater distance best available science. The proposed designation of critical habitat for between the Brinkman Wash–Montana units reflected the best available Astragalus jaegerianus, three were Mine population and the Paradise information on the effects of dust. Due neutral, and four opposed the population (over 1.0 mi (1.6 km.)), and to the lack of information supporting the

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need for increased buffers on the We agree that maintaining a low edge- Comment 5: Proposed critical habitat windward side, we did not expand the to-area ratio is generally an important on Fort Irwin should not be excluded on critical habitat units. criterion in reserve design; however, the the basis of the DOD completing an Comment 3: The Service has not used designation of critical habitat does not Integrated Natural Resources the basic tenets of conservation biology establish a preserve or other Management Plan (INRMP). The failure in relation to minimizing fragmentation conservation area. Ideally, those to recognize (as the result of an and maximizing connectivity between responsible for planning a reserve (e.g., exclusion) that a large portion of the the proposed critical habitat units. the land manager) would take into habitat essential to maintaining Connectivity among occurrences, consideration critical habitat as well as Astragalus jaegerianus occurs on Fort minimization or avoidance of other criteria (such as edge-to-area ratio Irwin would likely result in the long- fragmentation, and maximization of and land uses adjacent to the proposed term extinction of the species. reserve size are all fundamental reserve) in their planning process. In the Our response: Because Fort Irwin’s principles of basic reserve design that specific case of the Coolgardie unit, INRMP is still in draft form, the should be applied to delineating critical although the ‘‘donut hole’’ technically statutory exemption for DOD lands habitat boundaries. The Goldstone- increases the edge-to-area ratio covered by an approved INRMP is not Brinkman unit and the Coolgardie unit considerably, the current and future applicable to Fort Irwin lands. Section are particularly problematic because of uses of lands in the donut hole most 4(a)(3)(B) can not be applied at this their increased edge-to-area ratios, likely would not have substantial edge time. However, in this final rule, all including the‘‘donut hole’’ (i.e., the effects on those lands within adjacent DOD lands at Fort Irwin are being nonessential area encompassed wholly critical habitat. This is because these excluded under Section 4(b)(2) for within the Coolgardie unit) in the lands are primarily Bureau of Land national security. Furthermore, Fort Coolgardie unit. Maintaining corridors Management (Bureau) lands that are Irwin has undergone a Section 7 to connect critical habitat units is managed under the ‘‘limited’’ and consultation in association with its particularly important to provide ‘‘moderate’’ use categories; among other expansion. Among the commitments opportunities for dispersal of seed and restrictions, vehicle travel is restricted analyzed in the Biological Opinion are for pollinators. to approved routes of travel. Mining the preservation of two milk-vetch Our response: We agree that claims used for recreational purposes populations in conservation areas set maintaining connectivity between occur within the donut hole as well as aside for milk-vetch preservation, and Astragalus jaegerianus populations is within the proposed critical habitat limiting military training activities in important when there is some reason to boundaries on the Coolgardie unit. other areas to preserve milk-vetch plants believe that genetic exchange is Although we do not believe them to be and habitat. The Service’s Biological occurring through seed dispersal and substantial, we recommend that the Opinion concluded that activities cross-pollination. We intentionally Bureau undertake an assessment of associated with base expansion will not connected the Goldstone and Montana- potential impacts of recreational mining jeopardize the continued existence of Brinkman populations because a on Astragalus jaegerianus regardless of Astragalus jaegerianus (Service 2004). number of biologically based criteria critical habitat designation. For more information see comment 6 (including pollinator flight distances, Comment 4: Since the purpose of and the analysis underlying this seed disperser travel distances, and the critical habitat designation is to exclusion in Application of Critical presence of primary constituent facilitate recovery of the species, not Habitat Under Section 3(5)(A), elements (PCEs)) were met, indicating merely to ensure the survival of 4(a)(3)(B), and 4(b)(2) of the Act. that the likelihood of genetic exchange individuals or populations (as per Federal Agency Comments between these two populations was recent court cases) designating critical high. Based on available information, habitat between the proposed critical Comment 6: The DOD has requested however, we do not believe that genetic habitat units would not only reduce that its lands at Fort Irwin be excluded exchange is occurring between the fragmentation but also create areas for from final critical habitat designation Montana-Brinkman and Paradise recovery. based on an exclusion under section populations, or the Paradise and Our response: The Goldstone- 4(a)(3)(B) of the Endangered Species Act Coolgardie populations, with any Brinkman unit encompasses both the (Act), as amended. Section 4 of the Act frequency. The distance between the Goldstone and Montana-Brinkman was amended through the National former two populations is 1.4 mi (2.3 populations and the intervening habitat Defense Authorization Act for 2004 km), and the distance between the latter between these two populations. These (Pub. L. 108–136). Section 4(a)(3)(B) of two populations is 3 mi (5 km); this two populations and the intervening the Act states the Secretary shall not distance is greater than that which can habitat were proposed to be designated designate as critical habitat any lands be traversed by the most likely seed- as one unit because the habitat includes controlled by DOD that are subject to an dispersing animals and by pollinators of PCEs, is suitable for Astragalus INRMP, if the Secretary determines that A. jaegerianus. Moreover, unlike the jaegerianus, and likely supports genetic such a plan provides a benefit to the corridor we included between the exchange and serves as a dispersal species for which critical habitat is Goldstone and Montana-Brinkman corridor. This area was considered proposed. DOD states that Fort Irwin’s populations, the intervening habitat essential for conservation. INRMP and attendant Endangered between these other two sets of The best information available to us at Species Management Plan (ESMP) meet populations contains topographic this time indicates that the rest of the the three criteria that the Service uses to features, elevations, and vegetation habitat between the proposed critical evaluate such plans (see Application of types that do not contain the PCEs for habitat units is not suitable for A. Critical Habitat Under Section 3(5)(A), A. jaegerianus (See Primary Constituent jaegerianus nor is it essential to its 4(a)(3)(B), and 4(b)(2) of the Act). First, Elements section). As discussed above conservation. These areas did not the INRMP provides a conservation in response to comment 1, the Service contain any PCEs and were not benefit to the species because over 8,000 does not consider this intervening proposed to be designated as critical ac (3,237 ha) will be placed under habitat to be essential to the habitat. For additional discussion, conservation status with training and conservation of the species. please refer to comment 1 above. access restriction. Second, funding is

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assured for conservation-related projects of occupied A. jaegerianus habitat on of the A. jaegerianus in these areas to in the INRMP because they are given a Fort Irwin, approximately 4,600 ac the conservation of the species, our ‘‘must-fund’’ priority within their (1,862 ha), or 40 percent of this habitat analysis was based on the assumption of program requirements (Hoefert, in litt. will be subject to high and medium all of the plants in these areas being lost. 2004). Third, the INRMP provides intensity levels of use for military With the proposed conservation assurances that the conservation training; approximately 5,000 ac (2023 measures, 78.5 percent of the total strategies will be effective by providing ha), or 43 percent, will be placed in the known habitat for the species will be for periodic monitoring and revisions to two conservation areas and placed under some form of conservation management (adaptive management) as approximately 1,870 ac (757 ha), or 17 management—either in the two necessary. Additionally, the INRMP will percent, will be placed in the ‘‘no-dig’’ conservation areas or the ‘‘no-dig’’ zone be reviewed annually with the Service zone. DOD has proposed to establish the on Fort Irwin lands, or in the proposed and other signatory parties to ensure the Goldstone Conservation Area (2,470 ac ACEC on Bureau lands. Based on the implementation and effectiveness of the (1,000 ha)) and the East Paradise Valley information available at this time, conservation actions taken. Conservation Area (4,302 ac (1741 ha)). although there would be loss of A. Our response: Section 4(a)(3) of the No mechanized training or ground- jaegerianus plants and habitat due to Act prohibits the Service from disturbing activities will be permitted military training activities, the designating as critical habitat any lands within these areas; vehicle use will be remaining portions of the occurrences or other geographical areas owned or restricted to existing roads, and the support dense aggregations of plants controlled by the DOD, or designated for boundaries of the areas will be marked. and are of sufficient size for the its use, that are subject to an INRMP if In addition, a ‘‘no-dig’’ zone, a portion ecosystems that A. jaegerianus depends the Secretary of the Interior determines of which (approximately 2,000 ac (809 on to persist (Service 2004). in writing that such plan provides a ha)) supports A. jaegerianus, will be Comment 7: The DOD requested that benefit to the species for which critical restricted to certain uses. Digging and its lands at Fort Irwin be excluded from habitat is being proposed. The current the establishment of tactical assembly final critical habitat designation based draft INRMP provides conservation areas and brigade support areas would on an exclusion under section 4(b)(2) of measures and monitoring, which allows be prohibited. We anticipate that, with the Endangered Species Act (Act), as for an adaptive management strategy to the possible exception of road and amended. This section of the Act states be implemented. Because Fort Irwin’s communication site development, most that the Secretary may exclude any area INRMP is still in draft form, however, of this area will remain undisturbed. from critical habitat if she determines Section 4(a)(3)(B) can not be applied at Consequently, with few exceptions, we that the benefits of such exclusion this time. However, in this final rule, all expect the Lane Mountain milk-vetch in outweigh the benefits of specifying such DOD lands at Fort Irwin are being the ‘‘no-dig’’ zone to persist with little areas as part of the critical habitat, excluded under 4(b)(2) based on disturbance. DOD is also proposing to unless she determines, based on the best potential impacts to national security assist the Bureau with the acquisition of scientific and commercial data and military readiness within the private lands within the proposed available, that the failure to designate training area. For more information, see Coolgardie Area of Critical such areas as critical habitat will result Application of Critical Habitat Under Environmental Concern (ACEC) that is in the extinction of the species Section 3(5)(A), 4(a)(3)(B), and 4(b)(2) of also being established for the concerned. DOD cites that ‘‘[w]e may exclude an area from designated critical the Act. conservation of A. jaegerianus, and to The Service has been working with habitat based on economic impacts, the implement an education program for the DOD on the development of the effect on national security, or other military personnel concerning the INRMP, particularly that portion which relevant impacts.’’ (Hoefert, in litt. 2004) importance of minimizing disturbance addresses Astragalus jaegerianus. We The DOD stated that the National to A. jaegerianus and its habitat. These reviewed an initial draft in 2002; in late Training Center (NTC) at Fort Irwin is conservation measures, as assessed in 2004 we reviewed several versions of essential to national security in that it our biological opinion, have been the draft INRMP. Progress on the INRMP provides the only military installation carried into Fort Irwin’s INRMP in total. is continuing in early 2005; however, suited for live maneuver training of due to the lengthy process to secure The military training activities will heavy brigade and battalion task forces. review and approval from various ultimately result in the loss of up to Should restrictions to maneuver training entities (in addition to the Service, the 4,600 ac; this amount comprises result from the designation of critical INRMP is required to have review and approximately 21.5 percent of the total habitat, such as reducing flexibility in approval from the California known habitat for this species. Some use of training lands, closing of areas, or Department of Fish and Game (CDFG)), areas supporting A. jaegerianus within training delays to allow for reinitiation final approvals of the INRMP will likely the training areas are inaccessible to of consultation for critical habitat, it not be in place by the time of this final vehicles and thus may not be used in a will have a direct impact on the Army’s rule. Once the entire INRMP is way that impacts the plants. However, training cycle, unit readiness, and completed, the Service will review it due to the large extent of the expansion national security. pursuant to our guidelines for Sikes Act area and the lack of more detailed Our response: In this final rule, we are documents and consult with the DOD information concerning the location of excluding all DOD lands at Fort Irwin pursuant to section 7(a)(2) of the Act A. jaegerianus plants, topographic under section 4(b)(2) due to national prior to final approval and signature. features such as rock outcrops security (see Application of Critical The service previously consulted with throughout this area, and the precise Habitat Under Section 3(5)(A), DOD with respect to its proposal to intensity and type of use by the Army, 4(a)(3)(B), and 4(b)(2) of the Act). expand Fort Irwin (Service 2004). In this we were unable to analyze effects at that Section 4(b)(2) of the Act states that earlier consultation, we analyzed the level that would allow us to identify critical habitat shall be designated and effects of the DOD’s proposed additional and quantify the lands where A. revised on the basis of the best scientific training activities and proposed jaegerianus may not be affected by data available after taking into conservation measures on Astragalus training. We note that, to ensure we consideration the economic impact, the jaegerianus. Of the 11,378 ac (4,605 ha) would not overestimate the contribution impact on national security, and any

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other relevant impact of specifying any correlated with, among other factors, Irwin, we are excluding this area under particular area as critical habitat. An annual precipitation of at least 15 4(b)(2) for national security. NASA has area may be excluded from critical centimeters (cm) (5.9 inches (in)). indicated that this area is vital to their habitat if we determine, following an Annual precipitation between 12 cm future space exploration efforts and that analysis, that the benefits of such (4.7 in) and 15 cm (5.9 in) may represent critical habitat in this area will severely exclusion outweigh the benefits of years when established individuals limit their ability to develop cutting specifying a particular area as critical continue to persist; annual precipitation edge space communications vital to habitat, unless the failure to designate between 7 (2.8 in) and 12 cm (4.7 in) extended missions to the Moon and such area as critical habitat will result may be years when some individuals planet Mars. Furthermore, about 600 of in the extinction of the species. die due to water stress; and annual 996 acres (403 ha) of DOD lands DOD Consequently, we may exclude an area precipitation of less than 7 cm (2.8 in) leased to NASA, are covered under from designated critical habitat based on may be years when many individuals DOD’s Goldstone Conservation Area. economic impacts, or other relevant die due to water stress or remain The Goldstone population of the milk- impacts such as preservation of dormant. The level of annual vetch supports approximately 500 conservation partnerships and national precipitation needed for recruitment plants. As discussed in comment 6, security. In this case, as discussed more (more than 15 cm (5.9 in)) has not these areas are managed by DOD for the fully below, we have determined in the occurred since 1998 and it appears that conservation of the plant (where there 4(b)(2) analysis that the DOD lands on the numbers of individuals of A. will be no mechanized training or Fort Irwin may be excluded from the jaegerianus have been in decline since ground-disturbing activities permitted critical habitat designation. that time. If the length of time between within these areas), further supporting Comment 8: DOD commented that the years favorable for recruitment is longer our exclusion under section 4(b)(2) of only potential benefit of designation of than the average lifespan of individuals, the Act. critical habitat on Fort Irwin lands then the species will be dependent on We have no information suggesting would be the prohibition of destruction the seedbank to re-establish above- that these individuals contribute any or adverse modification of critical ground populations. Therefore, it is less to the population than other habitat under section 7 of the Act. important to acknowledge that the individuals, and we believe we have However, since all proposed lands are numbers of individuals of A. biological basis for considering them to occupied, DOD states that any proposed jaegerianus fluctuate over time, not only be essential. However, we have action that would result in destruction from year to year, but from one decade excluded this area for other reasons (see or adverse modification would also to the next, depending on long-term Application of Critical Habitat Under result in jeopardy. DOD commented that climatic trends, and that maintaining Section 3(5)(A), 4(a)(3)(B), and 4(b)(2) of since they have already consulted on habitat of suitable quality is important the Act). the land expansion and received a to maximize the reproductive potential Comment 11: NASA comments that nonjeopardy determination, the of the species during climatically its research and development projects proposed training activities should not favorable years. are critical to future space exploration result in the extinction of the species. We did not include ‘‘artificially large efforts and the additional regulatory Our response: We have evaluated the buffer areas’’ around the Astragalus constraints imposed by critical habitat benefits of designation in our 4(b)(2) jaegerianus populations in our proposed in the Venus site will severely limit analysis within this document. designation, and in fact we did not their ability to develop cutting edge Comment 9: The creation of include buffer areas. As explained in space communications vital to extended artificially large buffer areas around the our proposed rule in the Methods missions to the moon and the planet Astragalus jaegerianus populations and section, any lands additional to those Mars. their inclusion as critical habitat has no occupied by plants include the granitic Our response: Because the amount of scientific basis. The logic of including soils and plant communities (primary habitat and number of individuals of A. every known plant and the associated constituent elements) that support A. jaegerianus that occur on NASA-leased 100-to-200-meter (m) (328-to-656-feet jaegerianus and are well within the lands is less that one percent of the total (ft)) buffer is questionable, especially in distance that can be traversed by extent of the species, we do not believe light of the fact that the current known pollinators and seed dispersers. We that critical habitat would result in amount of A. jaegerianus is over 20 expect these areas have seed banks. regulatory constraints to the extent that times larger than the amount that was Moreover, additional lands were not it would severely limit their ability to believed to exist when it was listed as included if the topography was too carry out their research and endangered. steep or the elevation was too high to development programs. However, we Our response: The numbers of support additional A. jaegerianus have excluded this area for other individuals and the range of Astragalus individuals. We therefore believe our reasons (see Application of Critical jaegerianus are now known to be larger approach for including these additional Habitat Under Section 3(5)(A), than they were at the time the species lands in the proposed designation was 4(a)(3)(B), and Section 4(b)(2) of the was listed (October 6, 1998, 63 FR scientifically sound. Act). See comment 10 for additional 53596). However, we also know more Comment 10: The National information. now about the life history of the species Aeronautics and Space Administration Comment 12: The Bureau of Land and about the extent of the threat its (NASA) commented that the Astragalus Management requested that we habitat faces from proposed military jaegerianus individuals on lands they reconsider whether designation of activities. Rundel et al. (2004) tracked lease from the DOD in what is known critical habitat on Bureau-administered over 200 A. jaegerianus at 5 locations as the Venus Research and Development lands in the Paradise and Coolgardie between 1999 and 2004 and found that site do not significantly contribute to areas is necessary or appropriate. The less than 15 percent of them had the overall milk-vetch population, and Bureau stated that we are authorized by survived over the 5-year time period. therefore should not be considered in the Act [sections 4(b)(2) and 3(5)(A)] to This research indicates that successful the critical habitat designation. exclude areas covered by adequate recruitment (addition of individuals to a Our response: Because this NASA management plans or agreements population by reproduction) is area is a lease holding within DOD’s Ft. (including HCPs), and that provide for

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adequate protection of the primary whether these lands would also be Webb and Wishire 1983; Latting and constituent elements of such habitat. included in critical habitat. Rowlands 1995; U.S. Geologic Survey, The final Environmental Impact Our response: The DOD-sponsored 2004 and DOD Integrated Training Area Statement (EIS) of the West Mojave Plan surveys included a reconnaissance Management (ITAM) workshop (WMP) was published on April 1, 2005 phase in which additional sites up to 30 proceedings (http://srp.army.mil.public/ and includes an amendment to the miles away from known Astragalus workshop)). Impacts that affect the plant Bureau’s California Desert Conservation jaegerianus populations that had community within which Astragalus Area Plan and makes reference to future suitable substrate, elevation, and plant jaegerianus occurs will also impact A. development of an HCP; the companion communities were also checked (Charis jaegerianus. HCP for non-Federal lands within the Corporation 2001). Although it is The commenter notes that ‘‘much of planning area is currently under possible that other populations may be the area has undergone historic mining development. The WMP includes located in the future, the reconnaissance exploration and activity’’ and questions provisions for establishing two new surveys lead us to believe that this is whether this really had an effect on the conservation areas for Astragalus unlikely. We are required to use the best species. Although mining historically jaegerianus (Coolgardie Mesa and West information available at the time a occurred over much of the area included Paradise ACECs) and a set of critical habitat designation is proposed; in the proposed Coolgardie critical management actions that are applicable if other populations are located in the habitat unit, the activity typically to these areas that will contribute to the future on nondesignated lands, those consisted of digging small test pits. conservation of A. jaegerianus. lands could be designated as critical While the number of pits dug may be Our response: The Service has been habitat only through another regulatory numerous, they typically were so small working with the Bureau and other process. However, if other lands are that collectively they affected a very participating agencies in the found that support A. jaegerianus small percentage of the land within the development of the WMP over the last populations but critical habitat is not proposed critical habitat unit. A designated on these lands, this lack of decade. Although the final EIS for the proliferation of dirt roads associated designation does not signify that these WMP has been published, the WMP is with this mining activity resulted in a lands are any less important to the not final because the Record of Decision loss of habitat and an increase in habitat conservation and recovery of the (ROD) has not yet been signed; we fragmentation in the Coolgardie area. species. While an assessment of historical expect the ROD to be signed in the near Comment 14: Critical habitat should impacts due to mining activity may be future. We have provided comments to not be used to cancel or impede the difficult to do, we have suggested to the the Bureau on its proposed measures to determination the Service has already Bureau that they undertake an conserve Astragalus jaegerianus on made in its biological opinion that the assessment of impacts due to current early versions of the draft plan and expansion of training at Fort Irwin will mining activity on their lands. believe that these measures will provide not cause jeopardy to the species. a conservation benefit to the species. We Our response: We have excluded all Comment 16: The description of the have applied the three criteria by which DOD lands at Fort Irwin on the basis of proposed critical habitat designation by we evaluate the effectiveness of 4(b)(2) of the Act. If we had designated Universal Transverse Mercator (UTM) conservation measures included in critical habitat for Astragalus coordinates is not acceptable, as the management plans (see Application of jaegerianus on Fort Irwin lands, any re- effects of the designation cannot Critical Habitat Under Section 3(5)(A), initiation of formal consultation on its correctly be tied to properties on the 4(a)(3)(B), and Section 4(b)(2) of the Act) critical habitat would be conducted ground, especially for private and have made a finding that under section 7(a)(2) of the Act. landowners. conservation measures contained in the Comment 15: What kind of Our response: Our regulations (50 WMP for A. jaegerianus will provide for assessment has there been of the effects CFR 17.94(b) and 50 CFR 424.12(c)) set adequate protection of the species and that the potentially impacting activities forth the requirements for describing its habitat; therefore, special discussed under the Effects of Critical areas included in a critical habitat management and protections would not Habitat Designation in the proposed rule designation. We are required to provide be required. However, to the extent that (such as grazing, fire management, legal definitions of the boundaries. For these specific areas meet the definition vehicle disturbance, and mining this purpose, the boundaries for critical of critical habitat pursuant to section activities) have actually had on the habitat provided as UTM North 3(5)(A)(i)(II) of the Act, we are population size and distribution of the American Datum coordinates are used excluding under section 4(b)(2) the species? What effects have historic to describe the critical habitat entire Coolgardie unit and the portion of mining activities had on the species boundaries. Since no critical habitat is the Paradise unit that is on Bureau lands beyond the boundary of actual being designated, there are no maps or from final critical habitat designation. operations? descriptions in this rule. For our justification, please see, Our response: Quantitative Public comments Relationship of Critical Habitat to Lands monitoring to correlate the nature and Managed by the Bureau of Land extent of impacts with population Comment 17: One commenter said Management. parameters has not yet been initiated; that procedures as per 16 U.S.C. DOD has proposed to initiate such 1533(a)(3)(A) for the designation of Local Agency Comments monitoring as a part of its INRMP and critical habitat were not followed; Comment 13: The County of San ESMP. Nevertheless, there is an specifically, best scientific data are Bernardino questions whether abundance of literature that discusses unavailable to interested parties and additional populations of Astragalus impacts of various activities (such as therefore they presume that the jaegerianus might be located in the grazing, fire management, vehicle available data are both insufficient and future since the DOD-sponsored surveys disturbance, and mining) on desert inaccurate. The commenter requested focused on Fort Irwin lands. If habitats which, in general, are less the ‘‘best scientific data available’’ that additional populations are found in the resilient to such impacts and take longer the proposed designation was based on future, the County is concerned as to to recover than more mesic habitats (see as well as any comments made by the

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State of California or the County of San disturbed areas on public lands to and open space for recreational Bernardino. promote the conservation of the covered purposes to help mitigate the impacts of Our response: We sent the commenter species. Section 10(a)(1)(B) of the Act, property development. The lands on the list of references cited in the rule its implementing regulations, and our Coolgardie Mesa are remote from any and offered to send any particular policies do not prohibit the use of cities or urban areas; therefore, references in which he was interested. monies generated as a result of the Coolgardie Mesa would not be an We also forwarded comments we permitting process in the funding of appropriate location for any city or received from the County of San restoration activities on public lands; urban area that may need to set aside Bernardino. public lands, in and of themselves, lands within its boundaries for Comment 18: An economic analysis is cannot be used to mitigate for the recreation. However, for unrelated required to be provided ‘‘not less than impacts of private activities (Service reasons, we have excluded this area 90 days before the effective date of the 1996). from the critical habitat designation (see regulation’’ designating critical habitat. Finally, one component of the West Application of Critical Habitat Under Our response: A notice (69 FR 70971) Mojave Plan is a formal amendment, by Section 3(5)(A), 4(a)(3)(B), and 4(b)(2) of announcing the availability of the draft the Bureau of Land Management, of the the Act). economic analysis and reopening the California Desert Conservation Area Comment 21: There are numerous comment period on the proposed Plan. This amendment will apply only small businesses that will be affected by critical habitat designation was to the Bureau’s (i.e., public) lands. the proposed critical designation published in the Federal Register on Consequently, no component of this because they will have to pay a fee for December 8, 2004. The public had an amendment would involve the use of recreation facilities in accordance with opportunity to comment on the public funds or lands to mitigate the the Quimby Act. The Service needs to economic analysis, and that opportunity impacts of private activities. comply with the Regulatory Flexibility was provided not less than 90 days Comment 20: The Service is Act by taking into consideration these before the effective date of the proposing to close public lands to costs. regulation. The comment period closed recreational activities that were Our response: We disagree that on January 7, 2005. previously dedicated to this purpose. numerous small businesses will be Comment 19: Exclusion of DOD and Cities and counties that use these public affected, based on the economic analysis Bureau lands from critical habitat based lands for recreation would then be in that was made available on December 8, on section 3(5)(A) of the Act would be violation of the Quimby Act (California 2004, which addresses the economic unlawful because public funds and State Code 66477). Furthermore, the impacts to several sectors, including public lands (e.g., Bureau lands) cannot economic impact of making these lands recreational miners and OHV users. The be used to mitigate the taking of unavailable for dedication to economic analysis concluded that few, threatened and endangered species by recreational purposes under the Quimby if any, impacts will affect these two user private applicants and for private Act would exceed 100 million dollars. groups. purposes, such as is being proposed in Our response: The Service is not Comment 22: This proposal requires the West Mojave Plan (WMP) and the closing any lands as a result of that an environmental impact statement Fort Irwin Expansion Plan. The designating critical habitat. The be prepared because the proposal would commenter cites U.S.C. 1539(a)(2)(A)(ii) designation of critical habitat does not devastate the urban outdoor recreation [identical to section 10(a)(2)(A)] and 43 affect land ownership or establish a facilities that were previously U.S.C. 869. refuge, wilderness, reserve, preserve, or designated under the Outdoor Our response: The conservation other conservation area. Federal lands Recreation Act of 1963. The commenter measures proposed by the DOD as part managed by the Bureau are managed to also cites a number of State regulations, of its proposal to use additional training provide for balanced stewardship of the such as the Off-Highway Motor Vehicle lands at Fort Irwin include the lands and resources for all people. The Recreation Act of 1988, the California acquisition of private lands and the Federal Lands Policy and Management Outdoor Recreation Resources Plan Act restoration of disturbed areas on public Act of 1976 (FLPMA) provided for the of 1967, the California Recreation Trails lands to offset the loss of habitat that establishment of the California Desert Act of 1974, and the Federal Outdoor will result from training activities. The Conservation Area (CDCA) and required Recreation Act of 1963, to make the DOD is a Federal agency and is development of a management plan for point that critical habitat designation in undertaking these activities as part of its this area. Different parts of the CDCA the Coolgardie unit would severely federally mandated mission. Therefore, are managed for different purposes, impact the supply of outdoor recreation the DOD’s activities do not mitigate any depending on the sensitivity of the resources and facilities in the State. effects of a project of any private party. resources, public uses, and other factors Our response: We disagree that a The cited section, 16 U.S.C. such as health and safety. The Bureau critical habitat designation in the 1539(a)(2)(A)(ii) requires that an lands in the area of Coolgardie Mesa Coolgardie Unit would severely impact applicant (not a Federal agency) for an that were proposed as critical habitat outdoor recreation. The Bureau has been incidental take permit specify the were previously designated through the responsible for the management of the funding that will be available to CDCA plan as class L (limited) and M lands in this area since 1946 when the minimize and mitigate impacts to the (moderate) use lands, indicating that agency was formed. The Bureau has not species. If the Service issues an certain uses were appropriate and others designated any recreation areas or incidental take permit to local were not. With respect to recreation, facilities within the proposed governments as part of the West Mojave because these lands are already classed Coolgardie unit. This area is almost Plan, funds may be generated by as limited or moderate use, vehicle use entirely within lands classed for limited development proposed by both private is already restricted to approved routes and moderate use, which restricts parties and State and local agencies as of travel. vehicle use to approved routes of travel. a means of mitigating the impacts of the The Quimby Act does not apply to Furthermore, the Service is not loss of habitat on species covered by the any of the lands within the proposed required to conduct an environmental plan. These funds may be used to Coolgardie Unit. The purpose of the impact statement or environmental acquire private lands and to restore Quimby Act was to provide for parkland assessment per the National

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Environmental Policy Act (NEPA) for We frequently use data gathered on Fort Irwin is essential to national the proposed critical habitat other species or their habitats and how security, we have excluded this area designation. We published a notice in they respond to various types of from critical habitat under section the Federal Register on October 25, disturbance to infer that similar 4(b)(2) of the Act. 1983 (48 FR 49244), outlining the processes are occurring for the species In 2004, we completed a biological reasons for our determination that an of interest. We have performed this type opinion on the Army’s proposed environmental analysis as defined by of analysis for Astragalus jaegerianus. expansion of military training at Fort the NEPA is not required when Human impacts on desert ecosystems Irwin in which we determined that, designating critical habitat under the have been studied, and therefore we even though individuals and habitat of Endangered Species Act of 1973, as have a body of literature to reference. Astragalus jaegerianus would be lost amended. This position has been For instance, we know the soils and due to training, the DOD’s proposed approved by the Ninth Circuit Court of plant communities of desert ecosystems activity would not cause jeopardy to the Appeals (Douglas County v. Babbitt, 48 are less resilient than other ecosystems species. In connection with that F.3d 1495 (9th Cir. Ore. 1995), cert. in recovering from the effects of consultation, DOD proposed denied 116 S. Ct. 698 (1996)). vehicular traffic (e.g., see Latting and conservation measures, such as Comment 23: One commenter asked Rowlands 1995; Webb and Wilshire imposing restrictions on certain why the Service would consider 1983; Prose and Metzger 1985). Because portions of the habitat and providing critical habitat for this ‘‘loco we know the structure and composition implementing an education program for weed,’’ if, as we have stated, [‘‘the of desert plant communities is altered the species (see comment 6), that the Service has found that the designation by vehicular traffic, and because we Service believes will provide of statutory critical habitat provides know that A. jaegerianus depends on conservation benefits to the species. The little additional protection to most listed particular shrub communities, we infer draft INRMP contains these same species, while consuming significant that if those shrub communities are measures. We believe that the measures amounts of available conservation destroyed or eliminated by vehicular that the Army has proposed to conserve resources.’’ traffic, then A. jaegerianus will also be A. jaegerianus in the draft INRMP, Our response: Section 4(b)(2) of the destroyed or eliminated. which are identical to those that we Act directs us to consider the Comment 25: Critical habitat cannot consulted with DOD on, would be designation of critical habitat at the time close the Coolgardie area to mineral sufficient to provide for the survival of the species is listed. On November 15, prospecting; this can only be done the species. 2001, our failure to follow these through a process of withdrawal of areas Comment 27: The Service should not regulations in designating critical from mineral entry as specified in use the proposed designation to habitat for Astragalus jaegerianus and FLPMA. undermine the utility of the important seven other plant and wildlife species Our response: We concur that the and legally mandated conservation tool. was challenged in Southwest Center for designation of critical habitat would not In cases such as Forest Guardians v. Biological Diversity and California close the Coolgardie area to mineral Babbit (1998) and Arizona Cattlegrowers Native Plant Society v. Norton (Case No. entry. We note that the Bureau has v. FWS (2001), courts have agreed that 01–CV–2101–IEG (S.D.Cal.)). Our court proposed to withdraw the Coolgardie there are benefits to designation, such as settlement obligated us to pursue the area from mineral entry in the WMP; providing information that would assist designation of critical habitat within however, a withdrawal request has not in prioritizing conservation planning certain timeframes. been prepared at this time. We also note and management efforts, and avoiding ‘‘Locoweed’’ is a term given to certain that, even if a withdrawal from mineral the piecemeal conservation approach species of Astragalus, that accumulate entry were enacted, it would only when species management is selenium in alkaline soils, which when preclude the possibility of new claims fragmented into smaller planning eaten by livestock is toxic. This term being filed; valid existing claims would entities. Furthermore, critical habitat does not apply to Astragalus jaegerianus not be affected, and claims found to be was intended to require a recovery because it is not a selenium invalid would be vacated. standard, which incorporates accumulator. Comment 26: One commenter had consideration of cumulative impacts Comment 24: One commenter was not concerns about the potential exclusion beyond the piecemeal jeopardy convinced that this species needs of critical habitat from military lands standard. protection; the commenter thinks that based on an updated INRMP. With over Our response: The process of species are being counted as subspecies half of the proposed critical habitat proposing critical habitat has provided and populations, and believes that the occurring on Fort Irwin, the commenter informational benefits for planning the data do not always show a direct claims that the ultimate result of such conservation and management of correlation between human activities exclusion could be extinction of the Astragalus jaegerianus. Unlike other and species decline. species. The DOD’s current proposal species that may range over a larger Our response: Astragalus jaegerianus would eliminate 21.5 percent of number of jurisdictions and land is not being counted as a subspecies or Astragalus jaegerianus habitat, management agencies, as of 2004 when populations (however, please note that including 66 percent of the Montana- the proposed critical habitat designation the Endangered Species Act directs us Brinkman population and 20 percent of was prepared, 85 percent of the range of to treat subspecies and varieties of the Paradise Valley population. If the A. jaegerianus occurred primarily under plants as full species for purposes of the INRMP is to be used as an exclusion, it the jurisdiction of two Federal Act). In his monograph on the genus would have to recognize that critical agencies—the Department of the Army Astragalus, Barneby (1964) placed this habitat is the minimum standard for and the Bureau of Land Management; species in its own monotypic section of conservation and should not be this has facilitated conservation the genus, indicating its distinctness subjected to training. planning for this species (as of February from other species of milk-vetch. Our response: Since Fort Irwin’s 2005, 92 percent of the range of the Current taxonomic treatments of the INRMP is still in draft form, Section species occurs on Federal lands). Even genus uphold the distinctness of this 4(a)(3)(B) can not be applied at this prior to the listing of the species in taxon (Spellenberg 1993). time. Because the DOD has stated that 1998, we coordinated with these two

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agencies to ensure that they were arise from the designation of critical importance of the species and its including measures to conserve and habitat, because the WMP and INRMP habitat. As a practical matter, we note manage habitat for A. jaegerianus provide positive conservation measures, the difficulty in being able to develop appropriately during the course of their such as monitoring and fencing of credible estimates of such values as they proposed activities. Aside from the certain portions of the habitat, rather are not readily observed through typical lands that are proposed for active than just avoiding adverse modification. market transactions. In sum, we believe that society places the utmost value on military training by DOD on Fort Irwin, Economic Issues all other federal lands on Fort Irwin, conserving any and all threatened and including most of the NASA-leased Comment 28: The Service should endangered species and the habitats lands, and all lands managed by the devote as much time, energy, and upon which they depend and thus we Bureau that are habitat for A. language to the estimation of economic need only to consider whether the jaegerianus are being managed benefits and costs in relation to the economic impacts (both positive and primarily for the conservation of the proposed critical habitat. The negative) are significant enough to merit species. Although some private lands commenter provided us with a list of exclusion of any particular area without are interspersed with Bureau lands potential economic impacts that should causing the species to go extinct. within the proposed critical habitat be included in the analysis. Comment 29: One commenter boundaries, critical habitat for plant Our Response: Section 4(b)(2) of the suggested revising the statement made species carries no additional Act requires the Secretary to designate in the draft economic analysis (DEA) requirements for private landowners critical habitat based on the best that in its earlier biological opinion unless there is a Federal nexus. In the scientific data available after taking into (BO), the Service concluded that the case of the private lands where A. consideration the economic impact, and addition of training lands at Fort Irwin any other relevant impact, of specifying jaegerianus occurs, most of these will be is not likely to jeopardize the continued any particular area as critical habitat. purchased by the Army and managed by existence of Astragalus jaegerianus. The Our approach for estimating economic the Bureau as parts of the Paradise comment notes that this BO did not impacts includes both economic Valley ACEC and Coolgardie ACEC; as consider adverse modification with efficiency and distributional effects. The of February 2005, over 50 percent of the regard to species recovery and advises measurement of economic efficiency is private lands have already been that the statement in the DEA should be based on the concept of opportunity purchased. The designation of critical revised to reflect current case law costs, which reflect the value of goods habitat for plant species on private invalidating the Service’s definition of and services foregone in order to lands confers no regulatory authority adverse modification. comply with the effects of the unless there is a Federal nexus. The Our Response: The DEA states that designation (e.g., lost economic the past formal consultation regarding County of San Bernardino, the agency opportunity associated with restrictions the proposed addition of training lands that has jurisdiction over private lands on land use). Where data are available, at Fort Irwin resulted in a Service BO in this area, has been alerted through our analyses do attempt to measure the concluding that the proposed action was the critical habitat designation process net economic impact. For example, if not likely to jeopardize the continued of the value of these lands to the the fencing of Astragalus jaegerianus existence of Astragalus jaegerianus. conservation of A. jaegerianus, and habitat to restrict motor vehicles results This statement correctly characterizes should take this into consideration in an increase in the number of this past consultation which occurred during its permitting processes. individuals visiting the site for wildlife prior to designation of critical habitat Section 7 requires that federal viewing, then our analysis would and thus did not consider whether the agencies ensure that activities they attempt to net out the positive, offsetting proposed activity would adversely undertake not jeopardize the continued economic impacts associated with their modify or destroy critical habitat, and existence of a listed species or adversely visits (e.g., impacts that would be the associated costs of this consultation modify or destroy its designated critical associated with an increase in tourism are appropriately included as pre- habitat. The processes for determining spending). However, while this scenario designation impacts of species whether jeopardy and adverse remains a possibility, we found no data conservation. The DEA acknowledges modification are likely to occur involve that would allow us to measure such an (in footnote 16), however, that a recent analyzing the same types of information impact, nor was such information Ninth Circuit judicial opinion (Gifford from the same time frames (i.e., the submitted to us during the public Pinchot Task Force v. United States Fish current rangewide condition of the comment period. and Wildlife Service) has invalidated species and its critical habitat, the Most of the other benefit categories the Service’s regulation defining current condition of the species and its submitted by the commenter reflect destruction or adverse modification of critical habitat in the action area, the broader social values, which are not the critical habitat, and notes that the effects of the action under review on the same as economic impacts. While the Service is currently reviewing the species and its critical habitat, and the Secretary must consider economic and decision to determine what effect it may effects of any future non-Federal action other relevant impacts as part of the have on the outcome of section 7 that is reasonably certain to occur final decision-making process under consultations. within the action area). The courts have section 4(b)(2) of the Act, the Act Comment 30: One commenter stated invalidated the Service’s definition of explicitly states that it is the that the DEA should clearly state that adverse modification of critical habitat. government’s policy to conserve all critical habitat designation for plants The Service is currently reviewing the threatened and endangered species and would not have any legal impact on decision to determine what effect it may the ecosystems upon which they private lands unless there were a have on the outcome of section 7 depend. Thus we believe that explicit Federal nexus, and therefore the consultations. We believe that the consideration of broader social values economic impact to private landowners actions to be undertaken by the Bureau for the species and its habitat, beyond from this designation should be zero. through the WMP, and by DOD through the more traditionally defined economic Our response: As detailed in the DEA, the INRMP, provide conservation impacts, is not necessary, because no impacts are anticipated to private benefits which exceed those that would Congress has already clarified the social landowners associated with Astragalus

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jaegerianus conservation efforts. The attributed to A. jaegerianus. For each The lands within the WMP that contain DEA discusses the potential for changes consultation and conservation effort, the proposed critical habitat designation for to private property values associated DEA attempts to identify costs A. jaegerianus, for example, may require with public attitudes about the limits specifically related to A. jaegerianus. In particular attention and management, as and costs of critical habitat. However, the case of administrative consultation they are known to contain sensitive this effect should be minimized since costs, the DEA applies a standard cost species. The DEA also acknowledges we anticipate most of the private model used to estimate a range of that the WMP considers multiple property will be transferred to Federal administrative costs of consultation. sensitive species and does not include ownership within the next few years. These costs are considered all costs of WMP conservation efforts for Comment 31: A commenter stated that representative of the potential range of all species, but isolates those related the range of administrative consultation costs typically experienced for a specifically to A. jaegerianus. That is, costs applied in the DEA is too broad consultation regarding a single species. the full costs of development and and offers that Federal agencies likely The cost model assumes that implementation of the WMP are not keep better track of consultation costs consultations involving more than one attributed to A. jaegerianus conservation and may provide a more realistic range species typically involve higher efforts in the DEA. The DEA isolates of costs. administrative costs. Accordingly, conservation efforts specifically Our response: The economic analysis although consultations described in the included in the proposed WMP for A. employs a consultation cost model to DEA may involve multiple species, the jaegerianus, including increasing law represent the likely range of administrative costs as estimated by enforcement (of OHV restrictions) in the administrative costs of informal and applying this cost model are considered proposed A. jaegerianus conservation formal section 7 consultations. The to be predictive of those costs due areas, route maintenance and broad range takes into consideration specifically to the inclusion of A. rehabilitation, and maintenance of that consultations involve varied levels jaegerianus in the consultation. signage and route maps. of effort. The cost model is based on Comment 33: According to one Comment 35: One commenter noted anticipated administrative effort from a comment provided, conservation efforts that, as the WMP is in developmental survey of a number of Federal agencies associated with the Fort Irwin stages and no final environmental and Service Field Offices across the expansion predesignation consultations impact statement has been completed, country. The administrative effort is are overstated because many of these the analysis of the WMP and its typically defined in number of hours consultations involved multiple species. conservation efforts for Astragalus spent, and then translated into a dollar The comment stated that DOD jaegerianus are speculative and should value by applying the appropriate monitoring and maintenance costs do be represented as such or deleted from average government salary rates. In not appear to be prorated to include the the DEA. Following that, the commenter interviewing the agencies relevant to other sensitive species that occur on states specifically that the costs of an this DEA, the representatives were DOD lands. annual report on the progress of the asked if the estimated administrative Our response: As mentioned WMP should be deleted because the costs seemed reasonable. In the case that previously, the DEA attempts to identify WMP is still only a draft, and further, the agency anticipated a different range costs specifically related to Astragalus under the WMP, annual monitoring is of costs for its particular activities jaegerianus conservation. not required. within the proposed designation, that Administrative costs as estimated in the Our response: The DEA acknowledges cost range was applied to the relevant DEA (e.g., associated with development that the WMP is not yet complete. consultations in place of the generic of the Key Elements Report, preliminary Significant time and effort, however, cost model estimates. That is, where review of expansion lands proposal and have been already devoted to its specific information was available INRMP, etc.) are those specifically development (the BLM estimates more regarding the level of effort for a attributable to consideration of A. than $5 million has been spent on the particular consultation, the unique cost jaegerianus and habitat. The costs of Plan) and the Notice of Availability for estimates were applied. surveys, monitoring, and fencing in the the final EIS is expected to be published Comment 32: One commenter said DEA represent only A. jaegerianus- in the Federal Register soon (letter from that, because many of the conservation specific efforts, and not similar efforts BLM to USFWS, January 6, 2005). As efforts benefit multiple species, for other species. such, the DEA considers the including informal and formal Comment 34: A comment letter implementation of the WMP to be a consultations, it is not appropriate to regarding the DEA stated that the WMP reasonable forecast of future land allocate all costs to Astragalus costs should be divided among species management in the region. Regarding jaegerianus conservation. This comment considered in the plan. This comment the costs of annual monitoring of suggested that costs be prorated by offered that costs of Astragalus conservation measures implemented, species that benefit from the critical jaegerianus conservation may be the West Mojave Management Team habitat designation and other determined by applying the ratio of (developers of the WMP) anticipates conservation actions. As an example, proposed critical habitat acreage to the preparing a report summarizing progress the comment states that consultation entire WMP acreage or as a percentage specifically on Astragalus jaegerianus costs are overestimated, as most of the total number of species covered conservation measures and the status of consultations involve multiple species. in the WMP. A. jaegerianus on WMP lands. Our response: To the extent possible, Our response: It is not appropriate to Comment 36: According to one the DEA distinguished costs related simply divide the acreage of the comment letter, the costs of developing specifically to Astragalus jaegerianus proposed critical habitat designation the WMP included in the DEA seem conservation where multiple species are that overlaps the proposed WMP area by underestimated. subject to a single conservation effort or the total acres covered in the WMP to Our response: According to BLM section 7 consultation. In the case that establish the percentage of total WMP (William Haigh, personal comm. May another species clearly drives a project costs relevant to Astragalus jaegerianus. 18, 2004), the primary agency involved modification or conservation effort, the It is likely that particular regions require in the multijurisdictional WMP, the associated costs are appropriately not more active management than others. costs of developing of the WMP were

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approximately $5 million. Importantly, participants or private individuals Our response: The DEA does not this estimate is provided for context and holding mining claims in the region. include costs of purchase of private is not a cost component of the DEA. The This is because most of the digging and lands within the boundaries of the Fort WMP covers a large area and considers panning occurs in pockets of deeper, Irwin expansion area as a cost related to many species; the DEA evaluates only gold-bearing soil rather than the shallow Astragalus jaegerianus conservation, the portion of those costs relevant to soiled areas where Astragalus and only includes purchase of those Astragalus jaegerianus. jaegerianus occurs. The costs associated private lands outside of Fort Irwin that Comment 37: With respect to the with mining in the DEA are for BLM to: overlap with the proposed critical WMP, one comment stated that costs of (a) Conduct validity exams at existing habitat designation for A. jaegerianus. route designation appear highly mining claims to determine whether a The purpose of DOD purchase of A. inflated. The comment reasons that if valuable mineral deposit exists; and (b) jaegerianus habitat lands to be managed $700,000 was spent surveying routes in assess whether claimant’s mining by the Bureau as conservation areas is the WMP’s 9.4 million acres, $20,000 to activity may result in significant ground to mitigate potential impact to A. $30,000 seems high for the 25 miles of disturbance. The Bureau has yet to jaegerianus from training on habitat routes in Astragalus jaegerianus determine whether current mining within Fort Irwin lands. Purchase of proposed critical habitat. Further, the activity has any impact on A. these lands outside of Fort Irwin and estimate of 5 to 25 percent of the route jaegerianus. within the proposed critical habitat maintenance seems high, as proposed Comment 39: A comment provided designation is therefore appropriately critical habitat makes up less than 0.2% from the DOD states that the economic considered related to A. jaegerianus of the WMP area. analysis is adequate but that it did not conservation in the DEA. Our response: First, according to the estimate costs of acquiring better Comment 41: One commenter stated BLM (William Haigh, personal comm. information on the distribution of the that as the Key Elements Report May 18, 2004), the $700,000 was spent species and conducting research on the primarily considered the desert tortoise, surveying 1.5 million acres within the impacts of training (e.g., the effects of costs of the review of this plan WMP area, not 9.4 million acres. dust or obscurants) on endangered ($20,000–$85,000) related to the Second, it is not necessarily appropriate species. Although these efforts are Astragalus jaegerianus seem very high. to assume that there is a linear recommended by the Service, Our response: The Service estimates relationship between miles surveyed conducting such research and that the Key Elements report involved and survey cost. Rather than develop a experiments can be cost prohibitive. roughly double the effort of a typical ‘‘rule of thumb,’’ the DEA employs Our response: While the DEA does consultation due to its coverage of specific information provided by the include past costs of species survey and complex issues regarding military BLM regarding estimated BLM total research efforts, future costs of similar training and species conservation. It is expenditures on the surveys ($700,000) efforts are not included. Future costs of unclear whether this estimate considers and the portion of that cost relevant to species conservation efforts on Fort surveys within Astragalus jaegerianus Irwin in the DEA include maintenance only the administrative effort of A. conservation areas as outlined by the of Astragalus jaegerianus conservation jaegerianus-related issues, or all species proposed WMP ($20,000 to $30,000). As areas, acquisition of private lands for A. considered within the Key Elements the BLM conducted these efforts, this is jaegerianus conservation outside of Fort report. In the case that this cost includes considered to be the best information Irwin, and implementation of the efforts considering, for example, the available regarding these costs. Further, ongoing education program regarding A. desert tortoise, administrative costs of communications with the BLM (May 18, jaegerianus. The DOD expects to spend consultation related to A. jaegerianus 2004, and September 13, 2004) have approximately $100,000 per year for the are overestimated. supported the DEA estimate that up to next 5 years to conduct research on seed Comment 42: According to one 25 percent of route maintenance costs of germination and banking and comment, the 2001–2003 DOD surveys the WMP are related to A. jaegerianus management of experimental for Astragalus jaegerianus included conservation. The BLM notes and the populations. DOD further anticipates lands outside of the proposed critical DEA reflects, however, that this is a spending approximately $50,000 per habitat designation and these costs high-end estimate and that the actual year for 5 years to study the cumulative should therefore not be included in the range of potential costs related to A. effects of dust obscurants on A. DEA. jaegerianus conservation is between 5 jaegerianus. This new information is Our response: The DOD conducted and 25 percent of the total costs. included in the revised economic Astragalus jaegerianus surveys to obtain Although the proposed critical habitat analysis of the proposed critical habitat better information regarding the designation is relatively small compared designation. distribution of the species. The cost of to the entire WMP area, this range of Comment 40: A comment provided on these A. jaegerianus surveys are costs is reasonable considering that the DEA noted that Fort Irwin must therefore considered conservation sensitive species (i.e., A. jaegerianus) acquire all lands within the boundaries efforts related to A. jaegerianus and are are known within the proposed critical of the expansion and that including included in the pre-designation costs habitat designation area: therefore, more purchase of these lands as a cost of within the DEA. effort may be spent in maintenance of A. Astragalus jaegerianus conservation Comment 43: While the DOD has jaegerianus-occupied acres as compared overestimates the costs attributable to A. committed $75 million for conservation, to other, less sensitive lands. jaegerianus. The comment further stated one commenter highlighted that these Comment 38: One comment stated that Fort Irwin must purchase monies will be used for a variety of that while a minerals withdrawal from additional acres outside the boundaries mitigation efforts, not just for Astragalus the WMP lands proposed for critical of the expansion area to mitigate land jaegerianus. habitat is preferable, there is no impact regardless of critical habitat Our response: The DEA acknowledges guarantee this would happen and so designation and that it is likewise not that the $75 million will be applied to associated costs are not certain. appropriate to attribute these costs to myriad efforts considering multiple Our response: The DEA does not the A. jaegerianus critical habitat species. This estimate is provided for anticipate impacts to casual use mining designation. context in the DEA and is not included

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in full as a component of the costs of result of species conservation efforts. (1) We excluded from critical habitat conservation for Astragalus jaegerianus. Information on the prevalence of OHV portions of the Montana-Brinkman and Comment 44: One comment stated use and dual sport events in the area is Paradise units that occur on DOD lands that an Integrated Natural Resources provided in the DEA as context for the at Fort Irwin, including those proposed Management Plan (INRMP), such as that analysis. First, the Bureau does not for military training and those proposed for Fort Irwin, would need to be issue formal permits for OHV use within for conservation of Astragalus updated whenever a new federally the proposed lands. All OHV users must jaegerianus under section 4(b)(2) of the listed species is discovered on the base remain on open routes within the Act. or when a species is listed. The cost of proposed critical habitat and are (2) We excluded from critical habitat updating the INRMP should therefore therefore not anticipated to adversely under sections 4(b)(2) and 3(5)(A) of the not be considered a result of the critical impact Astragalus jaegerianus or its Act the portion of the Paradise unit and habitat designation. habitat. Second, dual sport events may all of the Coolgardie unit that occur on Our response: The INRMP did not require a Bureau-issued Special Bureau lands where an Area of Critical previously include a discussion of Recreation Permit and may pass through Environmental Concern in the WMP has Astragalus jaegerianus management and routes within the proposed critical been proposed to be established. is therefore being updated to address habitat. These events, however, are also (3) We no longer consider the issues and management related to A. required to adhere to the open routes. Astragalus jaegerianus habitat on lands jaegerianus. The costs of updating the While dust resulting from these events leased to NASA from the DOD at what INRMP are therefore appropriately may be a concern for A. jaegerianus, is known as the Venus Research and included in the DEA as a conservation multiple route options are available for Development site to be essential to the effort related to A. jaegerianus. these events, and participants are conservation of the species and have Comment 45: One comment asserted typically flexible regarding rerouting therefore removed this area from the that the annual monitoring and around particular areas. final critical habitat designation. See reporting costs on NASA lands are response to Comment 10. inflated. This comment further Comments From the State questioned why NASA species survey Critical Habitat costs are included, as the DOD already Section 4(i) of the Act states, ‘‘the Critical habitat is defined in section 3 surveyed NASA-leased lands and Secretary shall submit to the State of the Act as—(i) The specific areas further surveying would be redundant. agency a written justification for [her] within the geographic area occupied by Our response: Written communication failure to adopt regulations consistent a species, at the time it is listed in from NASA (March 4, 2004, and July 14, with the agency’s comments or accordance with the Act, on which are 2004) provided the costs of annual petition.’’ We contacted the CDFG found those physical or biological monitoring and reporting on Astragalus concerning the proposed critical habitat features (I) essential to the conservation jaegerianus. The DEA estimates costs of designation; however, it chose not to of the species and (II) that may require approximately $500,000 in the first year submit comments on the proposed special management considerations or (reflecting NASA’s stated intention to critical habitat designation for protection; and (ii) specific areas resurvey all of the areas previously Astragalus jaegerianus. The State outside the geographic area occupied by surveyed by DOD to independently notified us that submitting comments on a species at the time it is listed, upon verify the species’ distribution on NASA the proposed critical habitat designation a determination that such areas are lands leased from DOD) and $30,000 per was a low priority for them because they essential for the conservation of the year in subsequent years to monitor and are participants in the WMP planning species. ‘‘Conservation’’ means the use report on the status of the species. process, and have previously of all methods and procedures that are Communication with NASA following commented on the conservation necessary to bring an endangered or a the publication of the DEA clarifies that measures that were proposed for threatened species to the point at which these cost estimates include costs for Astragalus jaegerianus in the draft WMP listing under the Act is no longer surveys and monitoring of not only A. (CDFG, in litt. 2003). Furthermore, necessary. jaegerianus, but also the desert many of the private parcels that would Critical habitat receives protection cymopterus (Cymopterus deserticola) be subject to State environmental under section 7 of the Act through the and the Mojave ground squirrel. NASA regulations have been or are being prohibition against destruction or estimates that three-fifths of the costs of purchased by DOD and transferred to adverse modification of critical habitat these conservation efforts are the Bureau for inclusion in the with regard to actions carried out, specifically due to consideration of A. Coolgardie and Paradise ACECs. funded, or authorized by a Federal jaegerianus. The revised economic Because of this action, the State’s agency. Section 7 requires consultation analysis therefore revises impacts to concern with private lands issues has on Federal actions that are likely to NASA of A. jaegerianus conservation been greatly diminished. result in the destruction or adverse efforts to $300,000 in the first year and Summary of Changes From the modification of critical habitat. The $18,000 per year in subsequent years for Proposed Rule designation of critical habitat does not monitoring and reporting on the status affect land ownership or establish a of A. jaegerianus on its lands leased In the development of our final refuge, wilderness, reserve, preserve, or from DOD. designation of critical habitat for other conservation area. Such Comment 46: According to one Astragalus jaegerianus, we reviewed designation does not allow government comment on the DEA, off-highway comments received on the proposed or public access to private lands. vehicle (OHV) enthusiasts rarely designation of critical habitat and the To be included in a critical habitat purchase motorcycles/equipment for a draft economic analysis. In addition to designation, the habitat within the area single event. The costs to participate in incorporating these comments in this occupied by the species must first have a dual sport event are therefore final rule and revised economic features that are ‘‘essential to the overstated. analysis, where appropriate, we made conservation of the species.’’ Critical Our response: The DEA does not the following changes to the proposed habitat designations identify, to the forecast any impacts to OHV users as a designation: extent known and using the best

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scientific and commercial data associated Information Quality 424.12, in determining which areas to available, habitat areas that provide Guidelines issued by the Service. designate as critical habitat, we are essential life cycle needs of the species Section 4 of the Act requires that we required to base critical habitat (i.e., areas on which are found the designate critical habitat on the basis of determinations on the best scientific primary constituent elements, as what we know at the time of and commercial data available and to defined at 50 CFR 424.12(b)). designation. Habitat is often dynamic, consider those physical and biological Occupied habitat may be included in and species may move from one area to features (primary constituent elements) critical habitat only if the essential another over time. Furthermore, we that are essential to the conservation of features thereon may require special recognize that designation of critical the species and that may require special management or protection. Thus, we do habitat may not include all of the management considerations or not include areas where existing habitat areas that may eventually be protection. These include but are not management is sufficient to conserve determined to be necessary for the limited to: Space for individual and the species. (As discussed below, such conservation of the species. For these population growth and for normal areas may also be excluded from critical reasons, critical habitat designations do behavior; food, water, air, light, habitat pursuant to section 4(b)(2).) not signal that habitat outside the minerals or other nutritional or Our regulations state that, ‘‘The designation is unimportant or may not physiological requirements; cover or Secretary shall designate as critical be required for conservation. shelter; sites for germination or seed Areas that support populations, but habitat areas outside the geographical dispersal; and habitats that are protected are outside the critical habitat area presently occupied by a species from disturbance or are representative of designation, will continue to be subject only when a designation limited to its the historic geographical and ecological to conservation actions implemented present range would be inadequate to distributions of a species. under section 7(a)(1) of the Act and to ensure the conservation of the species’’ All areas proposed for critical habitat the regulatory protections afforded by (50 CFR 424.12(e)). Accordingly, when for Astragalus jaegerianus are within the section 7(a)(2) jeopardy standard, as the best available scientific and the species’ historical range and contain determined on the basis of the best one or more of the biological and commercial data do not demonstrate available information at the time of the physical features (primary constituent that the conservation needs of the action. Federally funded or permitted elements) identified as essential for the species require designation, we will not projects affecting listed species outside conservation of the species. The Act designate critical habitat in areas their designated critical habitat areas defines critical habitat as areas outside the geographic area occupied by may still result in jeopardy findings in containing physical and biological the species. some cases. Similarly, critical habitat characteristics essential to the The Service’s Policy on Information designations made on the basis of the conservation of the species. Standards Under the Endangered best available information at the time of Conservation is in turn defined as the Species Act, published in the Federal designation will not control the point at which the Act’s protections are Register on July 1, 1994 (59 FR 34271), direction and substance of future no longer necessary. Accordingly, to and Section 515 of the Treasury and recovery plans, habitat conservation identify critical habitat for Astragalus General Government Appropriations plans, or other species conservation jaegerianus, we must first determine at Act for Fiscal Year 2001 (Pub. L. 106– planning efforts if new information what point the species may be 554; H.R. 5658) and the associated available to these planning efforts calls considered ‘‘conserved’’. Although the Information Quality Guidelines issued for a different outcome. Service has not completed preparation by the Service, provide criteria, of a recovery plan for this species, establish procedures, and provide Methods recovery criteria most likely will guidance to ensure that decisions made As required by section 4(b)(1)(A) of include/be based on the persistence of by the Service represent the best the Act, we use the best scientific and stable populations over time in the four scientific and commercial data commercial data available in areas where the species is currently available. They require Service determining areas that are essential to known to occur. To achieve this will biologists to the extent consistent with the conservation of Astragalus likely require (1) monitoring of key life the Act and with the use of the best jaegerianus. We have also reviewed history attributes, including scientific and commercial data available information that pertains to reproduction and recruitment rates; (2) available, to use primary and original the habitat requirements of this species. maintaining habitat that is required for sources of information as the basis for This information included data from our the species to carry out these essential recommendations to designate critical files that we used for listing the species; functions; and (3) avoiding and habitat. When determining which areas geologic maps (California Geologic minimizing threats that alter the are critical habitat, a primary source of Survey 1953), recent biological survey, primary constituent elements within the information is generally the listing and reports, particularly from the Army habitat or the ability of the species to package for the species. Additional surveys of 2001 (Charis 2002); complete its life cycle. The primary information sources include the additional information provided by the constituent elements essential to the recovery plan for the species, articles in Army, the Bureau of Land Management, conservation of A. jaegerianus habitat peer-reviewed journals, conservation those engaged in research on A. are based on specific components that plans developed by States and counties, jaegerianus, and other interested are described below. scientific status surveys and studies, parties; and discussions with botanical Space for Individual and Population biological assessments, or other experts. We also conducted multiple Growth, Including Sites for unpublished materials and expert site visits to all three of the units that Germination, Pollination, Reproduction, opinion or personal knowledge. All were proposed for critical habitat Seed Dispersal, and Seed Bank information is used in accordance with designation. the provisions of Section 515 of the The distribution of Astragalus Treasury and General Government Primary Constituent Elements jaegerianus is restricted to four Appropriations Act for Fiscal Year 2001 In accordance with section 3(5)(A)(i) geographically distinct areas that occur (Pub. L. 106–554; H.R. 5658) and the of the Act and regulations at 50 CFR north of the city of Barstow in the west

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Mojave Desert, San Bernardino County. (Anthophora sp.), and the white-lined rotten, highly weathered granite bedrock The four populations of A. jaegerianus sphinx moth (Hyles lineata) (Kearns was reached within 2 in (5 cm) of the are arrayed more or less linearly along 2003). Additional pollinator soil surface near A. jaegerianus plants a 20-mile-long (32 km) axis that trends observations are scheduled for the 2005 (Fahnestock 1999). The topography in a northeasterly-to-southwesterly flowering season (Hopkins 2005). where A. jaegerianus most frequently direction. The region is characterized by These plant communities also support occurs is on low ridges and rocky low block-faulted mountain ranges separated animal species that are likely to disperse hills where bedrock is exposed at or by alluvium-filled basins. The basins the seeds of Astragalus jaegerianus. near the surface and the soils are coarse consist of broad valley plains, gently Compared with the seed sizes of many or sandy (Prigge 2000b; Charis 2002). sloping bajadas, and rolling hills with desert annual species, the A. jaegerianus Most of the individuals found to date low relief (Charis 2003). At the seed’s relatively large size of would occur between 3,100 and 4,200 ft (945 landscape level, the plant community make them an attractive food source to to 1,280 m) in elevation (Charis 2002). within which A. jaegerianus occurs can ants and other large insects, small At lower lying elevations, the alluvial be described as Mojave mixed woody mammals, and birds (Brown et al. 1979). soils appear to be too fine to support A. scrub (Holland 1998), Mojave creosote These animal species would also be the jaegerianus, and at higher elevations the bush scrub (Holland 1988; Cheatham most likely vectors to disperse A. soils may not be developed enough to and Haller 1975; Thorne 1976), or jaegerianus seeds within and between support A. jaegerianus (Prigge 2000b; creosote bush series (Sawyer and populations. Rasoul Sharifi (pers. Charis 2002). Keeler-Wolf 1995). More specifically, comm. 2004) confirmed the presence of Sharifi et al (2004) have noted annual the sites where A. jaegerianus occurs A. jaegerianus seeds within native ant rainfall amounts at two weather stations have a high diversity of low shrub coppices (mounds). Seed may also be representative of the northern portion of species, including: Turpentine bush moved across the soil surface by wind the range of Astragalus jaegerianus and (Thamnosma montana), white bursage or running water (Sharifi et al. 2004); compared them to germination and (Ambrosia dumosa), Mormon tea however, long-distance dispersal by survival rates of over 200 A. jaegerianus (Ephedra nevadensis), Cooper these means is more likely a rare than individuals. They believe that goldenbush (Ericameria cooperi var. common event. successful recruitment (addition of cooperi), California buckwheat Although the aboveground portion of individuals to a population by (Eriogonum fasciculatum var. Astragalus jaegerianus individuals die reproduction) is correlated with, among polifolium), brittlebush (Encelia back each year, they persist as a other factors, annual precipitation of at farinosa or Encelia actoni), desert aster perennial rootstock through the dry least 15 cm (5.9 in). Annual (Xylorrhiza tortifolia), goldenheads season. The perennial rootstock may precipitation between 7 and 15 cm (2.8– also allow A. jaegerianus to survive (Acamptopappus spherocephalus), 6 in) may represent years when occasional dry years, while longer spiny hop-sage (Grayia spinosa), established individuals continue to periods of drought might be endured by cheesebush (Hymenoclea salsola), persist, though with some death due to remaining dormant (Beatley in Bagley winter fat (Kraschenninikovia lanata), water stress at the lower levels; annual 1999). Individuals begin regrowth in the and paper bag bush (Salazaria precipitation of less than 7 cm may be late fall or winter, once sufficient soil mexicana). Astragalus jaegerianus years when many individuals die due to moisture is available. Seed set typically grows within what are referred to as water stress or remain dormant. follows flowering in April and May. Although many years may not provide ‘‘host shrubs,’’ which it uses for However, if climatic conditions are optimal climatic conditions to result in structural support. The first five of the unfavorable, the plants may desiccate germination and seed set of Astragalus shrubs listed above, along with dead prior to flowering or completing seed jaegerianus, the region north of Barstow shrubs, are host to approximately 75 set. Therefore, substantial contributions provides the appropriate soils, percent of the A. jaegerianus to the seedbank may occur primarily in vegetation communities, and rainfall individuals that have been observed. climatically favorable years. The patterns to support the growth of A. Host shrubs may also be important in seedbank then persists in the soil jaegerianus. providing appropriate microhabitat around the base of host shrubs and Based on the best available conditions (such as shelter from allows for germination and growth of information at this time, the primary herbivores, and modified soil and water new individuals in those years when constituent elements of critical habitat conditions) for A. jaegerianus seed suitable climatic conditions (rainfall, for Astragalus jaegerianus consist of: germination and seedling establishment temperatures) occur. (1) Shallow soils (between 3,100 and (Charis 2002). 4,200 ft (945 to 1,280 m) in elevation) These plant communities also support Areas That Provide the Basic derived primarily from Jurassic or insects that pollinate Astragalus Requirements for Growth (Such as Cretaceous granitic bedrock, and less jaegerianus. Based on limited Water, Light, and Minerals) frequently on soils derived from diorite observation, Anthidium dammersi, a Astragalus jaegerianus is most or gabbroid bedrock and at one location solitary bee in the megachilid family frequently found on shallow soils on granitic soils overlain by scattered (Megachilidae), was found to be the derived from Jurassic or Cretaceous rhyolitic cobble, gravel, and sand. most frequent pollinator observed on A. granitic bedrock. A small portion of the (2) The host shrubs (between 3,100 jaegerianus in 2003 (Kearns 2003). This individuals located to date occur on and 4,200 ft (945 to 1,280 m) in species will fly up to 0.6 mi (1 km) away soils derived from diorite or gabbroid elevation) within which Astragalus from its nest; however, if floral bedrock (Charis 2002). In one location jaegerianus grows, most notably resources are abundant, it will decrease on the west side of the Coolgardie site, Thamnosma montana, Ambrosia its flight distances accordingly (Doug plants were found on granitic soils dumosa, Eriogonum fasciculatum ssp. Yanega, University of California overlain by scattered rhyolitic cobble, polifolium, Ericameria cooperi var. Riverside, pers. comm. 2003). Three gravel, and sand. Soils tend to be cooperi, Ephedra nevadensis, and other occasional visitors to A. shallower immediately adjacent to milk- Salazaria mexicana that are usually jaegerianus were a hover fly (Eupeodes vetch plants than in the surrounding found in mixed desert shrub volucris), a large anthophrid bee landscape; at the Montana Mine site, communities.

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Criteria Used To Identify Essential Application of Critical Habitat Under geographical areas owned or controlled Habitat Section 3(5)(A), 4(a)(3), and 4(b)(2) of by the Department of Defense, or the Act designated for its use, that are subject to In our proposed critical habitat Section 3(5)(A) of the Act defines an INRMP prepared under section 101 designation (69 FR 18018), we critical habitat as the specific areas of the Sikes Act (16 U.S.C. 670a), if the delineated critical habitat units to within the geographic area occupied by Secretary of the Interior determines in provide for the conservation of the species on which are found those writing that such plan provides a benefit Astragalus jaegerianus at the four sites physical and biological features (i) to the species for which critical habitat where it is known to occur. All four essential to the conservation of the is proposed for designation. Fort Irwin sites are essential habitat because A. species and (ii) which may require has prepared a draft INRMP which jaegerianus exhibits life history special management considerations or includes Astragalus jaegerianus. We are attributes, including variable seed protection. Therefore, areas within the currently consulting with Fort Irwin on the draft INRMP. It is not likely that the production, low germination rates, and geographic area occupied by the species INRMP will be finalized prior to habitat specificity in the form of a that do not contain the features essential publication of this rule and therefore, dependence on a co-occurring organism for the conservation of the species are (host shrubs), all of which make it section 4(a)(3)(B) cannot be applied. not, by definition, critical habitat. Further, section 4(b)(2) of the Act particularly vulnerable to extinction Similarly, areas within the geographic states that critical habitat shall be (Keith 1998; Gilpin and Soule 1986). area occupied by the species that do not designated, and revised, on the basis of Please refer to the proposed rule (69 FR require special management or the best available scientific data after 18018) for details on how we protection also are not, by definition, taking into consideration the economic determined the boundaries of the critical habitat. To determine whether impact, national security impact, and proposed critical habitat units. an area requires special management, any other relevant impact of specifying we first determine if the essential any particular area as critical habitat. Special Management Considerations or features located there generally require Protections An area may be excluded from critical special management to address habitat if it is determined that the applicable threats. If those features do Within the geographical area benefits of exclusion outweigh the not require special management, or if occupied by the species special benefits of specifying a particular area they do in general but not for the as critical habitat, unless the failure to management considerations or particular area in question because of protections may be needed to maintain designate such area as critical habitat the existence of an adequate will result in the extinction of the the physical or biological features that management plan or for some other are essential to the conservation of species. reason, then the area does not require In our critical habitat designations we Astragalus jaegerianus. Habitat for A. special management. have used the provisions outlined in jaegerianus within the proposed We consider a current plan to provide sections 3(5)(A), 4(a)(3)(B), and 4(b)(2) Goldstone-Brinkman, Paradise, and adequate management or protection if it of the Act to evaluate those specific Coolgardie units may require special meets three criteria: (1) The plan is areas proposed for designation as management considerations or complete and provides a conservation critical habitat and those areas which protection due to the threats to the benefit to the species (i.e., the plan must are subsequently finalized (i.e., species and its habitat posed by maintain or provide for an increase in designated). We have applied the invasions of non-native plants such as the species’ population, or the provisions of these sections of the Act Sahara mustard (Brassica tournefortii) enhancement or restoration of its habitat to lands essential to the conservation of that may take over habitat for the within the area covered by the plan); (2) Astragalus jaegerianus to evaluate and species; habitat fragmentation that the plan provides assurances that the exclude them from final critical habitat. detrimentally affects plant-host plant conservation management strategies and Relationship of Critical Habitat to Lands (composition and structure of the desert actions will be implemented (i.e., those responsible for implementing the plan Managed by the Bureau of Land scrub community) and plant-pollinator Management (Bureau) interactions, leading to a decline in are capable of accomplishing the species reproduction and increasing objectives, and have an implementation Under section 3(5)(A) and (4)(b)(2) of susceptibility to non-native plant schedule or adequate funding for the Act, the Service is excluding from implementing the management plan); critical habitat the Coolgardie Unit and invasion; and vehicles (military vehicles and (3) the plan provides assurances a portion of the Paradise Unit that were or unauthorized OHV users) that cause that the conservation strategies and proposed for designation. We provide direct and indirect impacts, such as measures will be effective (i.e., it greater explanation below. excessive dust, to the plant. Habitat for identifies biological goals, has As discussed in the proposed rule (69 A. jaegerianus in the Goldstone- provisions for reporting progress, and is FR 18018), the Bureau has led the Brinkman, Paradise, and Coolgardie of a duration sufficient to implement the development of the West Mojave Plan units has been fragmented to a minor plan and achieve the plan’s goals and (WMP) (see additional information at extent. We anticipate that in the future, objectives). http://www.ca.blm.gov/cdd/ habitat fragmentation will increase, that Section 318 of fiscal year 2004 the wemo.html). The final WMP was changes in composition and structure of National Defense Authorization Act published in February 2005 and the the plant community may be altered by (Pub. L. 108–136) amended the Notice of Availability for the final WMP the spread of non-native plants, and that Endangered Species Act to address the Final Environmental Impact Statement the direct and indirect effects of dust relationship of Integrated Natural was published on April 1, though the may increase. All of these threats would Resources Management Plans (INRMPs) Record of Decision is due to be signed render the habitat less suitable for A. to critical habitat by adding a new by July 2005. The WMP includes the jaegerianus, and special management section 4(a)(3)(B). This provision Federal action of amending the Bureau’s may be needed to address them. prohibits the Service from designating California Desert Conservation Area as critical habitat any lands or other Plan and the framework for the

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development of an HCP for non-Federal and roadbeds will be vertically planned to purchase parcels from lands within the planning area. mulched). Catellus Corporation, a real estate Conservation of A. jaegerianus is a key The second criterion is whether the company that is assisting with the factor that was considered in the plan provides assurances that the transfer of parcels previously owned by development of the WMP. We have been conservation management strategies and Santa Fe Railroad. Catellus parcels were providing technical assistance to the actions will be implemented. As the located within the expansion area as Bureau to ensure that the WMP provides primary Federal land manager for the well as on Bureau lands. As of February for protection and management of lands that support A. jaegerianus 2005, the following acquisitions of habitat essential for the conservation of populations in the proposed Coolgardie Catellus land have already been this species. In addition, the Bureau is unit and a portion of the proposed completed by DOD: 100 percent of those currently consulting with the Service on Paradise unit, the Bureau is directed by in the Goldstone-Brinkman unit; 33 its proposed amendments to the section 7(a)(1) of the Act to ‘‘utilize their percent of those in the Paradise unit, California Desert Conservation Area authorities in furtherance of the and 67 percent of those in the Plan under section 7 of the Act. As part purposes of the Act by carrying out Coolgardie unit. In 2005, DOD will of the WMP, the Bureau has proposed programs for the conservation of continue with the acquisition of non- to establish the Coolgardie Mesa and endangered species.’’ In addition, the Catellus private lands from willing West Paradise Conservation Areas, to Bureau’s own national and State sellers within the boundaries of the two implement management actions that policies (Bureau 1996, 2001) include the ACECs on Bureau lands. will contribute toward the conservation objective to conserve listed species and Federal and other lands may also be of the species, and to modify current the ecosystems on which they depend. excluded from critical habitat activities within these areas so that such The plan also includes an designation based on section 4(b)(2) of activities will not impair the implementation schedule for the Act. An area may be excluded from conservation of the species. The WMP conservation measures to be taken; critical habitat if it is determined, does not contain specific measures to monitoring includes an annual review following an analysis of relevant conserve A. jaegerianus on private of implementation of the measures impacts, that the benefits of such lands; however, the WMP targets these undertaken, and tracking the progress of exclusion outweigh the benefits of lands for acquisition and subsequent land acquisition within the ACEC specifying a particular area as critical management by the Bureau for the boundaries. habitat, unless the failure to designate conservation of the species. The DOD is The third criterion is whether the such area as critical habitat will result providing the funding to acquire these plan provides assurances that the in the extinction of the species. We are private lands in the Coolgardie Mesa conservation strategies and measures excluding Bureau lands in the proposed will be effective. We believe the and West Paradise Conservation areas. Paradise and Coolgardie units, and measures that will be implemented by As of February 2005, the DOD had private lands within the proposed units, the Bureau will be effective because the already acquired over 50 percent of the under section 4(b)(2) of the Act. The primary strategy to conserve A. 4,300 ac of private lands outside of Fort analysis, which led us to the conclusion jaegerianus is to ensure that the quality Irwin and included in the proposed that the benefits of excluding these areas of its habitat is maintained by avoiding critical habitat designation. exceed the benefits of designating them future impacts. Based on this analysis of as critical habitat, and will not result in We have reviewed the Bureau’s WMP, the three criteria, we have found that the extinction of the species, follows. and we find that it meets the three the Bureau’s WMP provides for the criteria we use for evaluating such plans management that is needed to conserve (1) Benefits of Inclusion as discussed above. The WMP provides A. jaegerianus in these two areas and The benefits of inclusion are low. If an adequate conservation management under 3(5)(A) of the Act, we are not these areas were designated as critical plan that covers the species and designating as critical habitat these BLM habitat, any actions the Bureau provides for adaptive management areas. To the extent that these areas proposed to approve, fund, or undertake sufficient to conserve the species. The meet the definition of critical habitat which might destroy or adversely first criterion is whether the plan is pursuant to section 3(5)(A)(i)(II), we are modify the critical habitat would complete and provides a conservation excluding the Coolgardie unit and a require a consultation with us. If the benefit to the species. The WMP portion of the Paradise unit that were action affects an area occupied by the includes prescriptions for establishing proposed for critical habitat, totaling plants, consultation is required even two ACECs that include all the known 9,627 ac (3,896 ha), from final critical without the critical habitat designation. habitat for Astragalus jaegerianus habitat designation under section 4(b)(2) As indicated above, these units are each outside of DOD lands at Fort Irwin. The as discussed below. occupied by the listed plant, so areas will be managed to maintain the In the proposed critical habitat consultation on BLM’s activities on the integrity of the habitat, and include both designation, approximately 4,427 ac excluded lands will be required even protective measures, such as restricting (1,792 ha) of private lands were without the critical habitat designation. certain uses that would alter or destroy included. The amount of private lands Further, if a consultation on adverse the habitat (including: botanical surveys within the three proposed critical modification were to occur after will be required prior to issuing use habitat units was as follows: Goldstone- designating critical habitat, since permits, certain routes will be closed Brinkman unit 193 ac (78 ha); Paradise Bureau’s plan adequately provides for through a route designation process, unit 607 ac (246 ha); Coolgardie unit the conservation of habitat for this certain areas may be fenced if needed to 3,714 ac (1,503 ha). These private lands species, the benefit from additional protect the species, lands will be are also being excluded from critical consultation is likely also to be withdrawn from mineral entry to limit habitat because most of these lands will minimal. We are consulting on the future exploration, and restrictions on fall under the management of DOD or WMP and anticipate that the Bureau’s casual use mining will be developed as the Bureau over time. As part of the plan will provide for the conservation necessary), and measures to restore proposal to expand training lands on for the species. This is because the habitat that has already been impacted Fort Irwin included in the 2004 conservation measures included in the (closed routes will be signed as such, consultation with the Service, DOD has final West Mohave Plan to conserve A.

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jaegerianus, detailed above, were a key necessary or appropriate given the that all of the actions that the Bureau factor that was considered in the extensive conservation actions it has will be undertaking in these two areas development of the WMP. Under the included in the WMP, including will contribute to the conservation of Ninth Circuit judicial opinion (Gifford establishment of the Paradise and the species, and would not cause Pinchot Task Force v. United States Fish Coolgardie ACECs and the conservation jeopardy to the species. Any additional and Wildlife Service), critical habitat measures that will be implemented to actions by the Bureau which might designations may provide greater protect the habitat of Astragalus adversely affect the species must benefits to recovery of a species than jaegerianus. Based on our review of the undergo a consultation with the Service previously believed, but it is not WMP conservation measures, detailed under the requirements of section 7 of possible to quantify these benefits at above, we agree with the Bureau that the the Act. this time. measures it is undertaking are sufficient Relationship of Critical Habitat to Lands Another possible benefit of a critical to provide for the long-term Managed by the Department of Defense habitat designation is education of conservation of the species in these two (DOD) landowners and the public regarding the areas, and that little additional benefit potential conservation value of these would be provided by designating We have excluded all DOD lands areas through the proposed rule and critical habitat on Bureau lands. (including proposed critical habitat request for public comments. This may It will benefit the Bureau, and private currently leased to NASA) at Fort Irwin focus and contribute to conservation parties seeking permits and approvals under section 4(b)(2) of the Act for efforts by other parties by clearly from the Bureau to exclude these areas military readiness and national security. delineating areas of high conservation from designation. Existing conservation DOD requested that all Fort Irwin lands value for certain species. However, we measures are already being undertaken be excluded for national security. Of believe that this educational benefit has for the species, and thus without a lands currently leased to NASA from largely been achieved because the DOD- designation, because these measures DOD, a 996-acre inholding was sponsored surveys for Astragalus will provide long-term conservation proposed as critical habitat that lies jaegerianus in 2001 provided the basis benefits for the species, designating completely within the boundaries of for the Bureau’s proposal to establish critical habitat in theses areas would Fort Irwin. These lands include the Coolgardie and Paradise ACECs require an additional administrative approximately 600 acres within the (included in the West Mojave Plan) for burden, through requiring consultation Goldstone Conservation Area that is the purposes of conserving the species. on the critical habitat that is unlikely to managed by DOD for the benefit of Furthermore, private landowners and provide additional protection to that Astragalus jaegerianus, further users of the Bureau lands in these areas already provided in the WMP. supporting our exclusion under section have had the opportunity to participate 4(b)(2) of the Act. Because the INRMP (3) Benefits of Exclusion Outweigh the in the planning process for the West has not yet been completed, we did not Benefits of Inclusion Mojave Plan for over a decade, and thus consider DOD lands for non-inclusion have been made aware of the presence Because the Astragalus jaegerianus under Section 4(a)(3)(B). We provide of A. jaegerianus and the importance of habitat identified on Bureau lands in the greater explanation below. this habitat to its conservation. proposed Paradise and Coolgardie units The Sikes Act Improvement Act of Therefore, we believe the education does provide the primary constituent 1997 (Sikes Act) requires each military benefits, which might arise from a elements and requires special installation that includes land and water critical habitat designation here, have management considerations or suitable for the conservation and already been generated. protection, it was proposed for management of natural resources to In summary, we believe that a critical designation as critical habitat. However, complete, by November 17, 2001, an habitat designation for this plant species because all of the actions that the INRMP. Section 318 of the fiscal year would provide virtually no additional Bureau has proposed for these lands in 2004 National Defense Authorization Federal regulatory benefits. Because the WMP are focused on providing for Act (Pub. L. 108–136) amended the Act, almost all of the proposed critical the long-term conservation of Astragalus under Section 4(a)(3)(B), to address the habitat is Federal land occupied by the jaegerianus and provide benefits that relationship of INRMPs to critical species, the Bureau must consult with exceed those that would arise from the habitat. An INRMP integrates the Service over any action it designation of critical habitat (because implementation of the military mission undertakes, approves, or funds which the WMP provides positive conservation of the installation with stewardship of might impact the Astragalus measures), we have determined that the the natural resources found there. Each jaegerianus. The additional educational benefits of exclusion of these Bureau INRMP includes an assessment of the benefits, which might arise from critical lands from the critical habitat ecological needs on the installation, habitat designation, are largely designation outweigh the benefits of the including the need to provide for the accomplished through the proposed rule designation and therefore we are conservation of listed species; a and request for public comment that excluding these lands under section statement of goals and priorities; a accompanied the development of this 4(b)(2) of the Act. detailed description of management regulation, and the proposed critical actions to be implemented to provide (4) Exclusion Will Not Result in habitat is known to the Bureau. for these ecological needs; and a Extinction of the Species Furthermore, under the Gifford Pinchot monitoring and adaptive management decision, critical habitat designations Exclusion of the Bureau lands in the plan. We consult with the military on may provide greater benefits to recovery proposed Paradise and Coolgardie the development and implementation of of a species than was previously critical habitat units will not result in INRMPs for installations with listed believed, but it is not possible to extinction of the species. We are species. Section 4(a)(3)(B) of the Act quantify this at present. currently consulting with the Bureau on states that the Secretary shall not the WMP, which includes the designate as critical habitat any lands (2) Benefits of Exclusion establishment of the Paradise and controlled by the Department of The Bureau commented that critical Coolgardie ACECs. Although the Defense, or designated for its use, that habitat designation may not be consultation is not complete, we believe are subject to an INRMP if the Secretary

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determines that the plan provides a value of these areas. This may focus and (3) Benefits of Exclusion Outweigh the benefit to the species for which critical contribute to conservation efforts by Benefits of Inclusion habitat is being proposed for other parties by clearly delineating areas Because the Astragalus jaegerianus designation. The DOD specifically of high conservation value for certain habitat identified on Fort Irwin lands requested that we exclude Fort Irwin species. In this case the primary land proposed for military training does from critical habitat based on this owner is DOD, and we believe that this provide the primary constituent exclusion, and we worked closely with educational benefit has largely been elements and requires special DOD to revise its draft INRMP over the achieved because we have been management considerations or last year. However, because DOD has coordinating for many years with DOD protection, it was proposed for not completed its INRMP for Fort Irwin, on its land management programs and designation as critical habitat. However, these DOD lands do not meet the its proposal to expand training because the military has commented requirements for non-inclusion under activities. Based on these coordinating that critical habitat for A. jaegerianus Section 4(a)(3)(B). efforts, we believe that DOD is very had the potential to disrupt their critical Military lands may be excluded from aware of the conservation needs of national defense mission, we have critical habitat designation based on Astragalus jaegerianus. For example, determined that the benefits of section 4(b)(2) of the Act. An area may DOD sponsored the surveys for exclusion of critical habitat at Fort Irwin be excluded from critical habitat if we Astragalus jaegerianus in 2001 that determine, following an analysis of outweigh the benefits of the designation provided the basis for the proposed and therefore we are excluding these relevant impacts including the impact to critical habitat designation. Therefore, national security, that the benefits of lands under section 4(b)(2) of the Act. we believe the education benefits, In addition to national security such exclusion outweigh the benefits of which might arise from a critical habitat specifying a particular area as critical concerns, NASA expressed concern that designation here, have already been creation of critical habitat on their lands habitat, unless the failure to designate generated. such area as critical habitat will result leased from Fort Irwin would severely in the extinction of the species. DOD (2) Benefits of Exclusion limit NASA’s ability to develop cutting further requested the exclusion of all edge space communications technology. The Army has commented that Furthermore, management is being lands in Fort Irwin under section 4(b)(2) critical habitat on Fort Irwin would based on national security concerns. provided in these areas to provide for result in substantial economic and species conservation. After conducting the requisite 4(b)(2) military readiness impact. The Army analysis under section, we have believes that critical habitat would (4) Exclusion Will Not Result in excluded all DOD lands at Fort Irwin impact their ability to use the expansion Extinction of the Species (the Goldstone-Brinkman and Paradise lands for military training because such The exclusion of the DOD lands on units) under section 4(b)(2) of the Act designation could separate entirely the Fort Irwin will not result in extinction for military readiness and national western expansion areas from the of the species. We have already security. The analysis, which led us to installation and in the Army’s opinion the conclusion that the benefits of consulted with DOD on its proposal to critical habitat ‘‘does not allow any excluding these areas exceed the expand military training in the means of using the land for training benefits of designating them as critical expansion area and made the without violating the critical habitat that habitat, and will not result in the determination that this action would not would be designated.’’ If critical habitat extinction of the species, follows. cause jeopardy to the species (see were to have such an effect, it might Comment 6). Any additional actions by (1) Benefits of Inclusion require the Army to relocate its training DOD which might adversely affect the The benefits of inclusion are low. facilities. The Army commented that species must undergo a consultation Since the Fort Irwin units are all startup costs to establish a brigade-sized with the Service under the requirements occupied by Astragalus jaegerianus, force-on-force Combat Training Center of section 7 of the Act. The exclusions DOD must already consult with the in another location would cost $830 leave these protections unchanged from Service regarding any activities on these million, and as much as $10 billion to those that would exist if the excluded lands that may affect the species. In improve an existing installation so that areas were designated as critical habitat. it could support the training mission. other words, consultation would be Critical Habitat Designation required even without critical habitat If these impacts were to occur, the designation. Under the Gifford Pinchot benefits of excluding the installation Because all three critical habitat units decision, critical habitat may provide from critical habitat would be high. The that were proposed were excluded from greater recovery benefits to species than Service defers to the Army’s final designation, we are designating was previously believed, but it is not identification of specific credible zero acres (0 ac) (zero hectares (0 ha) of possible to quantify this at present. military readiness or national security critical habitat in this final rule for However, we have already consulted impacts. Further, critical habitat would Astragalus jaegerianus in San with and provided technical assistance require additional administrative Bernardino County, California. Congress to the Army relative to this expansion expenditures for consultation activities envisioned that there would be area. The largest aggregations of plants required by the designation for Fort circumstances where no critical habitat on these lands will be protected (see Irwin (and the DOD lands leased to would be designated (Congressional discussion above), and not subject to NASA). Since Fort Irwin is already Research Service 1982). activities which would likely adversely working to conserve the species and Effects of Critical Habitat Designation affect the ability of the conservation habitat on its property and proposing areas to contribute to the recovery of the measures that will conserve species and Section 7 Consultation species. habitats, it is unlikely that the Section 7(a) of the Act requires Another possible benefit of a critical designation of critical habitat would Federal agencies, including the Service, habitat designation in general is provide additional benefits to the to ensure that actions they fund, education of landowners and the public habitat through these additional authorize, or carry out do not destroy or regarding the potential conservation consultations. adversely modify critical habitat.

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Individuals, organizations, States, local Federal agency’s legal authority and section 7(a)(2) jeopardy standard and governments, and other non-Federal jurisdiction, that are economically and the prohibitions of section 9 of the Act. entities are affected by the designation technologically feasible, and that the Critical habitat designations made on of critical habitat only if their actions Director believes would avoid the the basis of the best available occur on Federal lands, require a destruction or adverse modification of information at the time of designation Federal permit, license, or other critical habitat. Reasonable and prudent will not control the direction and authorization, or involve Federal alternatives can vary from slight project substance of future recovery plans, funding. modifications to extensive redesign or habitat conservation plans, or other Section 7(a) of the Act requires relocation of the project. Costs species conservation planning efforts if Federal agencies, including the Service, associated with implementing a new information available to these to evaluate their actions with respect to reasonable and prudent alternative are planning efforts calls for a different any species that is proposed or listed as similarly variable. outcome. endangered or threatened and with Regulations at 50 CFR 402.16 require As discussed previously in this rule, respect to its critical habitat, if any is Federal agencies to reinitiate we are consulting with both the Army designated or proposed. Regulations consultation on previously reviewed and the Bureau on activities that are implementing this interagency actions in instances where critical being proposed on their lands. We have cooperation provision of the Act are habitat is subsequently designated, and completed consultation with the Army codified at 50 CFR part 402. the Federal agency has retained and continue to coordinate with them Section 7(a)(4) requires Federal discretionary involvement or control on its proposed addition of training agencies to confer with us on any action over the action or such discretionary lands on NTC (Charis 2003). We are also that is likely to jeopardize the continued involvement or control is authorized by consulting with the Bureau as the lead existence of a proposed species or result law. Federal agency on the WMP (Bureau in destruction or adverse modification Activities on Federal lands that may 2003). of proposed critical habitat. Conference affect Astragalus jaegerianus will Where federally listed wildlife species reports provide conservation require section 7 consultation. Activities occur on private lands proposed for recommendations to assist the action on private or State lands requiring a development, any habitat conservation agency in eliminating conflicts that may permit from a Federal agency, such as plans submitted by the applicant to be caused by the proposed action. We a permit from the U.S. Army Corps of secure an incidental take permit, may issue a formal conference report if Engineers under section 404 of the pursuant to section 10(a)(1)(B) of the requested by a Federal agency. Formal Clean Water Act or any other activity Act, would be subject to the section 7 conference reports on proposed critical requiring Federal action (i.e., funding, consultation process. The Superior- habitat contain an opinion that is authorization), will also continue to be Cronese Critical Habitat Unit for the prepared according to 50 CFR 402.14, as subject to the section 7 consultation desert tortoise (Gopherus agassizii), a if critical habitat were designated. We process. Federal actions not affecting species that is listed as threatened under may adopt the formal conference report listed species, and actions on non- the Act, overlaps in range with as the biological opinion when the Federal and private lands that are not Astragalus jaegerianus in a portion of critical habitat is designated, if no federally funded, authorized, or the Brinkman-Montana, Paradise, and substantial new information or changes permitted, do not require section 7 Coolgardie populations of the species. in the action alter the content of the consultation. Although we anticipate that most of the opinion (see 50 CFR 402.10(d)). The Section 4(b)(8) of the Act requires us activities occurring on private lands conservation recommendations in a to briefly describe and evaluate in any within the range of A. jaegerianus will conference report are advisory. proposed or final regulation that eventually be included under the If a species is listed or critical habitat designates critical habitat those umbrella of the HCP to be prepared by is designated, section 7(a)(2) requires activities involving a Federal action that the County of San Bernardino, there Federal agencies to ensure that activities may destroy or adversely modify such may be activities proposed for private they authorize, fund, or carry out are not habitat or that may be affected by such lands that either need to be completed likely to jeopardize the continued designation. Though we have not prior to the approval of the WMP’s HCP, existence of such a species or to destroy designated any areas as critical habitat or there may be a proposed activity that or adversely modify its critical habitat. in this final rule, we note Federal is not covered by the HCP, and therefore If a Federal action may affect a listed actions may jeopardize the continued may require a separate habitat species or its critical habitat, the existence of the species. conservation plan. responsible Federal agency must enter We recognize that those areas If you have questions regarding into consultation with us. Through this included in the proposed designation of whether specific activities would consultation, the action agency ensures critical habitat may not include all of require consultation under section 7 of that their actions do not destroy or the habitat areas that may eventually be the Act, contact the Field Supervisor, adversely modify critical habitat. determined to be necessary for the Ventura Fish and Wildlife Office (see When we issue a biological opinion conservation of the species. For this ADDRESSES section). Requests for copies concluding that a project is likely to reason, we want to ensure that the of the regulations on listed wildlife and result in the destruction or adverse public is aware that the critical habitat inquiries about prohibitions and permits modification of critical habitat, we also designation process does not signal that may be addressed to the U.S. Fish and provide reasonable and prudent habitat outside the proposed Wildlife Service, Portland Regional alternatives to the project, if any are designation is unimportant or may not Office, 911 NE 11th Avenue, Portland, identifiable. Reasonable and prudent be required for the species’ OR 97232 (telephone 503/231–6131; alternatives are defined at 50 CFR conservation. Any areas where facsimile 503/231–6243). 402.02 as alternative actions identified Astragalus jaegerianus occurs will during consultation that can be continue to be subject to conservation Economic Analysis implemented in a manner consistent actions that may be implemented under Section 4(b)(2) of the Act requires us with the intended purpose of the action, section 7(a)(1) of the Act and to the to designate critical habitat on the basis that are consistent with the scope of the regulatory protections afforded by the of the best scientific and commercial

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data available and to consider the Regulatory Flexibility Act (5 U.S.C. 601 Small Business Regulatory Enforcement economic and other relevant impacts of et seq.) Fairness Act (5 U.S.C. 804(2)). designating a particular area as critical Under the Regulatory Flexibility Act Under the SBREFA (5 U.S.C. 804(20), habitat. We may exclude areas from this rule is not a major rule. Based on critical habitat upon a determination (RFA) (as amended by the Small Business Regulatory Enforcement the effects identified in the economic that the benefits of such exclusions analysis, we believe that this critical Fairness Act (SBREFA) of 1996), outweigh the benefits of specifying such habitat designation of zero acres (0 ac whenever an agency is required to areas as critical habitat. We cannot (zero ha)) will not have an effect on the exclude such areas from critical habitat publish a notice of rulemaking for any economy of $100 million or more, will when such exclusion will result in the proposed or final rule, it must prepare not cause a major increase in costs or extinction of the species. and make available for public comment prices for consumers, individual An analysis of the potential economic a regulatory flexibility analysis that industries, federal, state, or local impacts of designating critical habitat describes the effects of the rule on small government agencies, or geographical for Astragalus jaegerianus was prepared entities (i.e., small businesses, small regions, and will not have significant and was made available for public organizations, and small government adverse effects on competition, review on December 8, 2004 (69 FR jurisdictions). However, no regulatory employment, investment, productivity, 70971). This analysis considered the flexibility analysis is required if the innovation, or the ability of U.S.-based potential economic effects of head of the agency certifies that the rule enterprises to compete with foreign- designating critical habitat as well as the will not have a significant economic based enterprises. protective measures taken as a result of impact on a substantial number of small the listing of A. jaegerianus as an Executive Order 13211 entities. SBREFA amended the RFA to endangered species, and other Federal, require Federal agencies to provide a On May 18, 2001, the President issued State, and local laws that aid habitat an Executive Order (E.O. 13211) on conservation in areas designated as statement of the factual basis for certifying that a rule will not have a regulations that significantly affect critical habitat. However, because the energy supply, distribution, and use. Service has not designated any lands as significant economic impact on a substantial number of small entities. Executive Order 13211 requires agencies critical habitat for A. jaegerianus the to prepare Statements of Energy Effects economic impact within the final SBREFA also amended the RFA to require a certification statement. Based when undertaking certain actions. None designation is zero. of these criteria are relevant to this on the information that is available to us A copy of the final economic analysis analysis because we are designating zero at this time, we are certifying that this and supporting documents are included acres (0 ac (zero ha)) of critical habitat. designation of critical habitat will not in our administrative record and may be Nevertheless, based on the economic obtained by contacting U.S. Fish and have a significant economic impact on analysis, the likelihood of any energy- Wildlife Service, Branch of Endangered a substantial number of small entities. related activity occurring within the Species (see ADDRESSES section) or by The following discussion explains our zero acres (0 ac (zero ha)) of designated download from the Internet at http:// rationale. critical habitat is minimal for the ventura.fws.gov. According to the Small Business following reasons: (1) There are no Required Determinations Administration (SBA), small entities transmission power lines identified on include small organizations, including the what we originally proposed as Regulatory Planning and Review any independent nonprofit organization critical habitat, and (2) there are no In accordance with Executive Order that is not dominant in its field, and energy extraction activities (Bureau of (EO) 12866, this document is not a small governmental jurisdictions, Land Management 1980). Therefore, this significant rule in that it will not raise including school boards and city and action is not a significant energy action novel legal and policy issues, and it is town governments that serve fewer than and no Statement of Energy Effects is not anticipated to have an annual effect 50,000 residents, as well as small required. on the economy of $100 million or more businesses. The SBA defines small or affect the economy in a material way. Unfunded Mandates Reform Act (2 businesses categorically and has U.S.C. 1501 et seq.) This action was submitted to the Office provided standards for determining of Management and Budget (OMB); In accordance with the Unfunded what constitutes a small business at 13 however, OMB declined to review the Mandates Reform Act (2 U.S.C. 1501 et CFR 121.201 (also found at http:// proposed rule. We prepared an seq.), we make the following findings: www.sba.gov/size/), which the RFA economic analysis of this action and (a) This rule will not produce a used this analysis to meet the requires all federal agencies to follow. Federal mandate. In general, a Federal requirement of section 4(b)(2) of the Act To determine if potential economic mandate is a provision in legislation, to determine the economic impacts to these small entities would be statute, or regulation that would impose consequences of designating the specific significant, the draft economic analysis an enforceable duty upon State, local, areas as critical habitat and excluding considered the types of activities that Tribal governments, or the private sector any area from critical habitat if it is might trigger regulatory impacts if and includes both ‘‘Federal determined that the benefits of such critical habitat were to be designated as intergovernmental mandates’’ and exclusion outweigh the benefits of proposed. However, because zero acres ‘‘Federal private sector mandates.’’ specifying such areas as part of the (0 ac (zero ha)) of critical habitat for These terms are defined in 2 U.S.C. critical habitat, unless failure to Astragalus jaegerianus are being 658(5)–(7). ‘‘Federal intergovernmental designate such area as critical habitat designated with this final rule, we are mandate’’ includes a regulation that will lead to the extinction of Astragalus certifying that this rule will not have a ‘‘would impose an enforceable duty jaegerianus. However, because we are significant economic impact on a upon State, local, or tribal not designating any critical habitat, we substantial number of small entities, governments,’’ with two exceptions. It will not be submitting the final rule to and thus a regulatory flexibility analysis excludes ‘‘a condition of federal OMB for review. is not required. assistance.’’ It also excludes ‘‘a duty

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arising from participation in a voluntary Federalism appears at 50 CFR 17. This rule will not Federal program,’’ unless the regulation In accordance with Executive Order impose recordkeeping or reporting ‘‘relates to a then-existing Federal 13132, the rule does not have significant requirements on State or local program under which $500,000,000 or Federalism effects. A Federalism governments, individuals, businesses, or more is provided annually to State, assessment is not required. As discussed organizations. An agency may not local, and tribal governments under above, the designation of zero acres (0 conduct or sponsor, and a person is not entitlement authority,’’ if the provision ac (zero ha)) of critical habitat in areas required to respond to, a collection of would ‘‘increase the stringency of currently occupied by Astragalus information unless it displays a conditions of assistance’’ or ‘‘place caps jaegerianus would have little currently valid OMB control number. upon, or otherwise decrease, the Federal incremental impact on State and local National Environmental Policy Act Government’s responsibility to provide governments and their activities. This is funding’’ and the State, local, or Tribal because the zero acres (0 ac (zero ha)) It is our position that, outside the governments ‘‘lack authority’’ to adjust of critical habitat occurs to a great extent Tenth Circuit, we do not need to accordingly. (At the time of enactment, on Federal lands managed by the prepare environmental analyses as these entitlement programs were: Department of Defense and the Bureau defined by the National Environmental Medicaid; AFDC work programs; Child of Land Management. Less than 15 Policy Act of 1969 in connection with Nutrition; Food Stamps; Social Services percent occurs on private lands that designating critical habitat under the Block Grants; Vocational Rehabilitation would involve State and local agencies, Endangered Species Act of 1973, as State Grants; Foster Care, Adoption and the amount of private lands amended. We published a notice Assistance, and Independent Living; continues to diminish as parcels are outlining our reasons for this Family Support Welfare Services; and purchased by DOD. determination in the Federal Register Child Support Enforcement.) ‘‘Federal Even though zero acres (0 ac (zero ha)) on October 25, 1983 (48 FR 49244). This private sector mandate’’ includes a of critical habitat are designated, the position was upheld in the courts of the regulation that ‘‘would impose an process of identifying proposed critical Ninth Circuit (Douglas County v. enforceable duty upon the private habitat may have some benefit to State Babbitt, 48 F.3d 1495 (9th Cir. Ore. sector, except (i) a condition of Federal and local governments in that the areas 1995), cert. denied 116 S Ct. 698 (1996)). assistance; or (ii) a duty arising from essential to the conservation of these This final rule does not constitute a participation in a voluntary Federal species are more clearly defined, and major Federal action significantly program.’’ the primary constituent elements of the affecting the quality of the human The designation of critical habitat habitat necessary to the survival of the environment. does not impose a legally binding duty species are identified. While this Government-to-Government on non-Federal government entities or definition and identification does not Relationship With Tribes private parties. Under the Act, the only alter where and what federally regulatory effect is that Federal agencies sponsored activities may occur, it may In accordance with the President’s must ensure that their actions do not assist these local governments in long- memorandum of April 29, 1994, destroy or adversely modify critical range planning (rather than making ‘‘Government-to-Government Relations habitat under section 7. While non- them wait for case-by-case section 7 With Native American Tribal Federal entities who receive Federal consultation to occur). Governments’’ (59 FR 22951), Executive funding, assistance, or permits or Order 13175, and the Department of the otherwise require approval or Civil Justice Reform Interior’s manual at 512 DM 2, we authorization from a Federal agency for In accordance with Executive Order readily acknowledge our responsibility an action may be indirectly impacted by 12988, the Office of the Solicitor has to coordinate with federally recognized the designation of critical habitat, the determined that this rule does not Tribes on a Government-to-Government legally binding duty to avoid unduly burden the judicial system and basis. We have determined that there are destruction or adverse modification of does meet the requirements of sections no Tribal lands essential for the critical habitat rests squarely on the 3(a) and 3(b)(2) of the Order. We are conservation of Astragalus jaegerianus. Federal agency. Furthermore, to the designating zero acres (0 ac (0 ha)) Therefore, no tribal lands were extent that non-Federal entities are critical habitat in accordance with the proposed as critical habitat for A. indirectly impacted because they provisions of the Endangered Species jaegerianus. receive Federal assistance or participate Act. The proposed rule used standard References Cited in a voluntary Federal aid program, the property descriptions and identified the Unfunded Mandates Reform Act would primary constituent elements within the A complete list of all references cited not apply; nor would critical habitat proposed designated areas to assist the herein, as well as others, is available shift the costs of the large entitlement public in understanding the habitat upon request from the Field Supervisor, programs listed above to State needs of Astragalus jaegerianus. Ventura Fish and Wildlife Office (see governments. ADDRESSES section). Paperwork Reduction Act of 1995 (44 (b) We do not believe that this rule Author will significantly or uniquely affect U.S.C. 3501 et seq.) small governments because it will not This rule does not contain new or The primary author of this proposed produce a Federal mandate of $100 revised information collection for which rule is Constance Rutherford, Ventura million or greater in any year, that is, it OMB approval is required under the Fish and Wildlife Office, U.S. Fish and is not a ‘‘significant regulatory action’’ Paperwork Reduction Act. Information Wildlife Service, 2493 Portola Road, under the Unfunded Mandates Reform collections associated with certain Act Suite B, Ventura, California 93003 (805/ Act. The designation of critical habitat permits (Fish & Wildlife Service Forms 644–1766). imposes no obligations on State or local 3–200–55 and 3–200–56) are covered by List of Subjects in 50 CFR Part 17 governments. As such, Small existing OMB Control No. 1018–0094, Government Agency Plan is not which expires on July 31, 2004. Detailed Endangered and threatened species, required. information for Act documentation Exports, Imports, Reporting and

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recordkeeping requirements, PART 17—[AMENDED] I 2. In § 17.12(h), revise the entry for Transportation. ‘‘Astragalus jaegerianus’’ under I ‘‘FLOWERING PLANTS,’’ to read as Proposed Regulation Promulgation 1. The authority citation for part 17 continues to read as follows: follows: I Accordingly, the Service hereby 17.12 Endangered and threatened plants. amends part 17, subchapter B of chapter Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– I, title 50 of the Code of Federal * * * * * 625, 100 Stat. 3500; unless otherwise noted. Regulations, as set forth below: (h) * * *

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

FLOWERING PLANTS.

******* Astragalus Lane Mountain milk- U.S.A. (CA) ...... Fabaceae—Pea ...... E 647 17.96(a) NA jaegerianus. vetch.

*******

I 3. In § 17.96(a), add critical habitat for Astragalus jaegerianus that is dumosa, Eriogonum fasciculatum ssp. Astragalus jaegerianus, in alphabetical characterized by the following primary polifolium, Ericameria cooperi var. order under Family Fabaceae to read as constituent elements: cooperi, Ephedra nevadensis, and follows: (i) Shallow soils derived primarily Salazaria mexicana. from Jurassic or Cretaceous granitic (2) Critical Habitat Map Units. § 17.96 Critical habitat—plants. bedrock, and less frequently soils Because zero acres (0 ac) of critical (a) Flowering plants. derived from diorite or gabbroid habitat are being designated, no critical * * * * * bedrock and, at one location, granitic habitat maps are provided here. Family Fabaceae: Astragalus soils overlain by scattered rhyolitic Dated: April 1, 2005. jaegerianus (Lane Mountain milk-vetch) cobble, gravel, and sand. Craig Manson, (1) Lands proposed for critical habitat, (ii) The highly diverse mixed desert Assistant Secretary for Fish and Wildlife and but excluded under 4(b)(2) and scrub community that includes the host Parks. exempted under 3(5)(A) of the Act, shrubs within which Astragalus [FR Doc. 05–6920 Filed 4–4–05; 3:01 pm] consists of the mixed desert scrub jaegerianus grows, most notably: community within the range of Thamnosma montana, Ambrosia BILLING CODE 4310–55–P

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