Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Astragalus jaegerianus, 18220-18241 [05-6920]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 67 (Friday, April 8, 2005)]
[Rules and Regulations]
[Pages 18220-18241]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-6920]



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Part V





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

Federal Register / Vol. 70, No. 67 / Friday, April 8, 2005 / Rules 
and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI78


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Astragalus jaegerianus (Lane Mountain milk-vetch)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating no critical habitat pursuant to the Endangered Species Act 
of 1973, as amended (Act), for Astragalus jaegerianus (Lane Mountain 
milk-vetch). In our April 6, 2004 proposed rule, we identified 29,522 
acres (ac) (11,947 hectares (ha)) of habitat essential for the 
conservation of A. jaegerianus located in the Mojave Desert in San 
Bernardino County, California. However, as a result of our evaluation 
of the relationship of essential habitat to sections 3(5)(A), 4(a)(3), 
and 4(b)(2) of the Act, we designate a total of zero acres (0 ac) (zero 
hectares (0 ha)).

DATES: This rule becomes effective on June 7, 2005.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in preparation of this final rule are available for 
public inspection, by appointment, during normal business hours at the 
Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 
Portola Road, Suite B, Ventura, CA 93003. The final rule, economic 
analysis, and map of proposed critical habitat are also available via 
the Internet at https://ventura.fws.gov.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, Ventura Fish and 
Wildlife Office (telephone 805/644-1766; facsimile 805/644-3958).

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than by biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 470 species, or 38 percent 
of the 1,253 listed species in the U.S. under the jurisdiction of the 
Service, have designated critical habitat.
    We address the habitat needs of all 1,253 listed species through 
conservation mechanisms such as listing, section 7 consultations, the 
Section 4 recovery planning process, the Section 9 protective 
prohibitions of unauthorized take, Section 6 funding to the States, and 
the Section 10 incidental take permit process. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    We note, however, that a recent 9th Circuit judicial opinion, 
Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 
has invalidated the Service's regulation defining destruction or 
adverse modification of critical habitat. We are currently reviewing 
the decision to determine what effect it may have on the outcome of 
consultations pursuant to Section 7 of the Act.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially-imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA). None of these costs results 
in any benefit to the species that is not already afforded by the 
protections of the Act enumerated earlier, and they directly reduce the 
funds available for direct and tangible conservation actions.

Background

    For background information on the biology of Astragalus 
jaegerianus, and a description of previous Federal actions, including 
our determination that designating critical habitat for this species is 
prudent, please see our April 6, 2004, proposed rule (69 FR 18018). On 
November 15, 2001, our decision not to designate critical habitat for 
A. jaegerianus and seven other plant and wildlife species was 
challenged in Southwest Center for Biological Diversity and California 
Native Plant Society v. Norton (Case No. 01-CV-2101-IEG (S.D.Cal.)). On 
July 1, 2002, the court ordered the Service to reconsider its not 
prudent

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determination and if prudent, to propose critical habitat for the 
species by September 15, 2003, and, if prudent, to issue a final 
critical habitat designation no later than September 15, 2004. However, 
prior to completing the proposed rule, the Service exhausted the 
funding appropriated by Congress for work on critical habitat 
designations in 2003. On September 8, 2003, the court issued an order 
extending the publication date of the proposed critical habitat 
designation for A. jaegerianus to April 1, 2004, and the final 
designation to April 1, 2005. In light of Natural Resources Defense 
Council v. U.S. Department of the Interior, 113 F.3d 1121 (9th Cir. 
1997), and the diminished threat of overcollection, the Service 
reconsidered its decision and determined that it was prudent to 
designate critical habitat for the species. On April 6, 2004, we 
published a proposed critical habitat designation (69 FR 18018) that 
included 29,522 ac (11,947 ha). On December 8, 2004, we published a 
notice of availability of the draft economic analysis for the 
designation of critical habitat and reopened the comment period for the 
proposed rule and draft economic analysis. This second comment period 
closed on January 7, 2005.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for Astragalus jaegerianus in the 
proposed rule published on April 6, 2004 (69 FR 18018). We also 
contacted appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties and invited them to comment 
on the proposed rule. During the comment period that opened on April 6, 
2004, and closed on May 21, 2004, we received 11 comment letters 
directly addressing the proposed critical habitat designation: 2 from 
peer reviewers, 4 from Federal agencies, 1 from a local agency, and 4 
from organizations or individuals. During the comment period that 
opened on December 8, 2004, and closed on January 7, 2005, we received 
three comment letters addressing the proposed critical habitat 
designation and the draft economic analysis. Of these latter comments, 
two were from Federal agencies, and one was from an organization. Four 
of the six total comment letters from Federal agencies were from the 
Department of Defense (DOD). Three commenters supported the designation 
of critical habitat for Astragalus jaegerianus, three were neutral, and 
four opposed the designation. Two letters included comments or 
information, but did not express support or opposition to the proposed 
critical habitat designation. Comments received were grouped by source 
(peer review, Federal agency, local agency, and public comments) and 
are addressed in the following summary and incorporated into the final 
rule as appropriate. We received one request for a public hearing, but 
this request was later retracted by the requestor.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from Sustainable Ecosystems 
Institute and three other knowledgeable individuals with scientific 
expertise that included familiarity with the species, the geographic 
region in which the species occurs, or conservation biology principles. 
We received responses from two of the four peer reviewers. The peer 
reviewers generally concurred with our methods and conclusions and 
provided additional information, clarifications, and suggestions to 
improve the final critical habitat rule. Peer reviewer comments are 
addressed in the following summary and incorporated into the final rule 
as appropriate.

Peer Review Comments

    Comment 1: One peer reviewer appreciated our efforts to capture 
realistic functional habitats through the inclusion of appropriate 
buffers in the critical habitat designation, but was concerned that 
there may not be sufficient connectivity between the three units to 
allow for genetic exchange, and suggested that the intervening areas 
should be evaluated on a regular basis to ensure the populations do not 
become isolated.
    Our response: Three critical habitat units were proposed for the 
four known populations of Astragalus jaegerianus (69 FR 18018). The 
Goldstone and Montana Mine-Brinkman Wash populations were proposed as 
one critical habitat unit, preserving existing genetic connectivity 
between those two populations. We believe we had sufficient reason to 
propose contiguous critical habitat between the Goldstone and Montana 
Mine-Brinkman Wash populations because the 0.5-mile (mi) (0.8 
kilometers (km)) distance between them could easily be traversed by 
pollinators and seed dispersers (the two mechanisms for effecting 
genetic exchange between populations). However, because of the greater 
distance between the Brinkman Wash-Montana Mine population and the 
Paradise population (over 1.0 mi (1.6 km.)), and the Paradise 
population and Coolgardie population (3.0 mi (5 km)), we have no 
reasonable cause to believe that genetic exchange occurs between these 
populations on a regular basis. The intervening habitat between the 
Brinkman Wash-Montana Mine, Paradise, and Coolgardie populations does 
not contain the requisite primary constituent elements (PCEs, see 
Primary Constituent Elements section), nor is it suitable for the 
survival of A. jaegerianus. We believe that these populations of A. 
jaegerianus most likely are reproductively isolated. In addition, the 
distances between populations are greater than would be reasonably 
likely to support genetic exchange. All of these factors led us to 
believe these areas between units or populations are not essential to 
the conservation of the species and therefore we did not through the 
critical habitat process attempt to establish connectivity between 
these other populations.
    Comment 2: One peer reviewer commented that stigmatic fouling (a 
form of contamination that occurs to flowers, and which could decrease 
the ability to produce viable seed) by dust generated from vehicle 
traffic has been observed at a Nevada test site. At this site, dust 
traveled considerable distances to rare plant population sites. The 
peer reviewer recommended that dust generated from the DOD's training 
activities could impact the reproduction of Astragalus jaegerianus, and 
that, where necessary, buffers should be expanded on the windward sides 
of the critical habitat units to reduce this impact.
    Our response: We have contracted with the Biological Resources 
Division of the United States Geologic Survey (USGS) to study the 
potential effects of dust on the growth (as measured by leaf length) 
and rate of photosynthesis of Astragalus jaegerianus. Preliminary 
results indicate that applications of dust did not affect leaf growth, 
and photosynthesis increased; however, shoot length decreased 
(Wijayratne et al. 2004). Researchers hypothesize that heavily dusted 
plants compensate by putting more effort into new leaves and reducing 
the availability of resources for shoot growth. The potential effects 
of dust on stigmatic fouling have not been studied for this species nor 
do we have specific information concerning other dust effects on A. 
jaegerianus or its pollinators. Under the ESA, we base our critical 
habitat determinations on the best available science. The proposed 
units reflected the best available information on the effects of dust. 
Due to the lack of information supporting the

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

Federal Agency Comments

    Comment 6: The DOD has requested that its lands at Fort Irwin be 
excluded from final critical habitat designation based on an exclusion 
under section 4(a)(3)(B) of the Endangered Species Act (Act), as 
amended. Section 4 of the Act was amended through the National Defense 
Authorization Act for 2004 (Pub. L. 108-136). Section 4(a)(3)(B) of the 
Act states the Secretary shall not designate as critical habitat any 
lands controlled by DOD that are subject to an INRMP, if the Secretary 
determines that such a plan provides a benefit to the species for which 
critical habitat is proposed. DOD states that Fort Irwin's INRMP and 
attendant Endangered Species Management Plan (ESMP) meet the three 
criteria that the Service uses to evaluate such plans (see Application 
of Critical Habitat Under Section 3(5)(A), 4(a)(3)(B), and 4(b)(2) of 
the Act). First, the INRMP provides a conservation benefit to the 
species because over 8,000 ac (3,237 ha) will be placed under 
conservation status with training and access restriction. Second, 
funding is

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

[[Page 18224]]

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

[[Page 18225]]

adequate protection of the primary constituent elements of such 
habitat. The final Environmental Impact Statement (EIS) of the West 
Mojave Plan (WMP) was published on April 1, 2005 and includes an 
amendment to the Bureau's California Desert Conservation Area Plan and 
makes reference to future development of an HCP; the companion HCP for 
non-Federal lands within the planning area is currently under 
development. The WMP includes provisions for establishing two new 
conservation areas for Astragalus jaegerianus (Coolgardie Mesa and West 
Paradise ACECs) and a set of management actions that are applicable to 
these areas that will contribute to the conservation of A. jaegerianus.
    Our response: The Service has been working with the Bureau and 
other participating agencies in the development of the WMP over the 
last decade. Although the final EIS for the WMP has been published, the 
WMP is not final because the Record of Decision (ROD) has not yet been 
signed; we expect the ROD to be signed in the near future. We have 
provided comments to the Bureau on its proposed measures to conserve 
Astragalus jaegerianus on early versions of the draft plan and believe 
that these measures will provide a conservation benefit to the species. 
We have applied the three criteria by which we evaluate the 
effectiveness of conservation measures included in management plans 
(see Application of Critical Habitat Under Section 3(5)(A), 4(a)(3)(B), 
and Section 4(b)(2) of the Act) and have made a finding that 
conservation measures contained in the WMP for A. jaegerianus will 
provide for adequate protection of the species and its habitat; 
therefore, special management and protections would not be required. 
However, to the extent that these specific areas meet the definition of 
critical habitat pursuant to section 3(5)(A)(i)(II) of the Act, we are 
excluding under section 4(b)(2) the entire Coolgardie unit and the 
portion of the Paradise unit that is on Bureau lands from final 
critical habitat designation. For our justification, please see, 
Relationship of Critical Habitat to Lands Managed by the Bureau of Land 
Management.

Local Agency Comments

    Comment 13: The County of San Bernardino questions whether 
additional populations of Astragalus jaegerianus might be located in 
the future since the DOD-sponsored surveys focused on Fort Irwin lands. 
If additional populations are found in the future, the County is 
concerned as to whether these lands would also be included in critical 
habitat.
    Our response: The DOD-sponsored surveys included a reconnaissance 
phase in which additional sites up to 30 miles away from known 
Astragalus jaegerianus populations that had suitable substrate, 
elevation, and plant communities were also checked (Charis Corporation 
2001). Although it is possible that other populations may be located in 
the future, the reconnaissance surveys lead us to believe that this is 
unlikely. We are required to use the best information available at the 
time a critical habitat designation is proposed; if other populations 
are located in the future on nondesignated lands, those lands could be 
designated as critical habitat only through another regulatory process. 
However, if other lands are found that support A. jaegerianus 
populations but critical habitat is not designated on these lands, this 
lack of designation does not signify that these lands are any less 
important to the conservation and recovery of the species.
    Comment 14: Critical habitat should not be used to cancel or impede 
the determination the Service has already made in its biological 
opinion that the expansion of training at Fort Irwin will not cause 
jeopardy to the species.
    Our response: We have excluded all DOD lands at Fort Irwin on the 
basis of 4(b)(2) of the Act. If we had designated critical habitat for 
Astragalus jaegerianus on Fort Irwin lands, any re-initiation of formal 
consultation on its critical habitat would be conducted under section 
7(a)(2) of the Act.
    Comment 15: What kind of assessment has there been of the effects 
that the potentially impacting activities discussed under the Effects 
of Critical Habitat Designation in the proposed rule (such as grazing, 
fire management, vehicle disturbance, and mining activities) have 
actually had on the population size and distribution of the species? 
What effects have historic mining activities had on the species beyond 
the boundary of actual operations?
    Our response: Quantitative monitoring to correlate the nature and 
extent of impacts with population parameters has not yet been 
initiated; DOD has proposed to initiate such monitoring as a part of 
its INRMP and ESMP. Nevertheless, there is an abundance of literature 
that discusses impacts of various activities (such as grazing, fire 
management, vehicle disturbance, and mining) on desert habitats which, 
in general, are less resilient to such impacts and take longer to 
recover than more mesic habitats (see Webb and Wishire 1983; Latting 
and Rowlands 1995; U.S. Geologic Survey, 2004 and DOD Integrated 
Training Area Management (ITAM) workshop proceedings (https://
srp.army.mil.public/workshop)). Impacts that affect the plant community 
within which Astragalus jaegerianus occurs will also impact A. 
jaegerianus.
    The commenter notes that ``much of the area has undergone historic 
mining exploration and activity'' and questions whether this really had 
an effect on the species. Although mining historically occurred over 
much of the area included in the proposed Coolgardie critical habitat 
unit, the activity typically consisted of digging small test pits. 
While the number of pits dug may be numerous, they typically were so 
small that collectively they affected a very small percentage of the 
land within the proposed critical habitat unit. A proliferation of dirt 
roads associated with this mining activity resulted in a loss of 
habitat and an increase in habitat fragmentation in the Coolgardie 
area. While an assessment of historical impacts due to mining activity 
may be difficult to do, we have suggested to the Bureau that they 
undertake an assessment of impacts due to current mining activity on 
their lands.
    Comment 16: The description of the proposed critical habitat 
designation by Universal Transverse Mercator (UTM) coordinates is not 
acceptable, as the effects of the designation cannot correctly be tied 
to properties on the ground, especially for private landowners.
    Our response: Our regulations (50 CFR 17.94(b) and 50 CFR 
424.12(c)) set forth the requirements for describing areas included in 
a critical habitat designation. We are required to provide legal 
definitions of the boundaries. For this purpose, the boundaries for 
critical habitat provided as UTM North American Datum coordinates are 
used to describe the critical habitat boundaries. Since no critical 
habitat is being designated, there are no maps or descriptions in this 
rule.

Public comments

    Comment 17: One commenter said that procedures as per 16 U.S.C. 
1533(a)(3)(A) for the designation of critical habitat were not 
followed; specifically, best scientific data are unavailable to 
interested parties and therefore they presume that the available data 
are both insufficient and inaccurate. The commenter requested the 
``best scientific data available'' that the proposed designation was 
based on as well as any comments made by the

[[Page 18226]]

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

[[Page 18227]]

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

[[Page 18228]]

agencies to ensure that they were including measures to conserve and 
manage habitat for A. jaegerianus appropriately during the course of 
their proposed activities. Aside from the lands that are proposed for 
active military training by DOD on Fort Irwin, all other federal lands 
on Fort Irwin, including most of the NASA-leased lands, and all lands 
managed by the Bureau that are habitat for A. jaegerianus are being 
managed primarily for the conservation of the species. Although some 
private lands are interspersed with Bureau lands within the proposed 
critical habitat boundaries, critical habitat for plant species carries 
no additional requirements for private landowners unless there is a 
Federal nexus. In the case of the private lands where A. jaegerianus 
occurs, most of these will be purchased by the Army and managed by the 
Bureau as parts of the Paradise Valley ACEC and Coolgardie ACEC; as of 
February 2005, over 50 percent of the private lands have already been 
purchased. The designation of critical habitat for plant species on 
private lands confers no regulatory authority unless there is a Federal 
nexus. The County of San Bernardino, the agency that has jurisdiction 
over private lands in this area, has been alerted through the critical 
habitat designation process of the value of these lands to the 
conservation of A. jaegerianus, and should take this into consideration 
during its permitting processes.
    Section 7 requires that federal agencies ensure that activities 
they undertake not jeopardize the continued existence of a listed 
species or adversely modify or destroy its designated critical habitat. 
The processes for determining whether jeopardy and adverse modification 
are likely to occur involve analyzing the same types of information 
from the same time frames (i.e., the current rangewide condition of the 
species and its critical habitat, the current condition of the species 
and its critical habitat in the action area, the effects of the action 
under review on the species and its critical habitat, and the effects 
of any future non-Federal action that is reasonably certain to occur 
within the action area). The courts have invalidated the Service's 
definition of adverse modification of critical habitat. The Service is 
currently reviewing the decision to determine what effect it may have 
on the outcome of section 7 consultations. We believe that the actions 
to be undertaken by the Bureau through the WMP, and by DOD through the 
INRMP, provide conservation benefits which exceed those that would 
arise from the designation of critical habitat, because the WMP and 
INRMP provide positive conservation measures, such as monitoring and 
fencing of certain portions of the habitat, rather than just avoiding 
adverse modification.

Economic Issues

    Comment 28: The Service should devote as much time, energy, and 
language to the estimation of economic benefits and costs in relation 
to the proposed critical habitat. The commenter provided us with a list 
of potential economic impacts that should be included in the analysis.
    Our Response: Section 4(b)(2) of the Act requires the Secretary to 
designate critical habitat based on the best scientific data available 
after taking into consideration the economic impact, and any other 
relevant impact, of specifying any particular area as critical habitat. 
Our approach for estimating economic impacts includes both economic 
efficiency and distributional effects. The measurement of economic 
efficiency is based on the concept of opportunity costs, which reflect 
the value of goods and services foregone in order to comply with the 
effects of the designatio