Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Astragalus lentiginosus, 33774-33795 [05-11315]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 110 (Thursday, June 9, 2005)]
[Rules and Regulations]
[Pages 33774-33795]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-11315]



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Part II





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 lentiginosus var. piscinensis (Fish Slough Milk-
Vetch); Final Rule

Federal Register / Vol. 70, No. 110 / Thursday, June 9, 2005 / Rules 
and Regulations

[[Page 33774]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AJ09


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Astragalus lentiginosus var. piscinensis (Fish 
Slough 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 critical habitat for the federally threatened Astragalus 
lentiginosus var. piscinensis (Fish Slough milk-vetch) pursuant to the 
Endangered Species Act of 1973, as amended (Act). In total, 
approximately 8,007 acres (ac) (3,240 hectares (ha)) fall within the 
boundary of the critical habitat designation. The critical habitat is 
located in Mono and Inyo Counties, California.

DATES: This rule becomes effective on July 11, 2005.

ADDRESSES: All comments and materials received during the comment 
periods, and supporting documentation used in preparation of the 
proposed and final rules, will be available for public inspection, by 
appointment, during normal business hours at the Ventura Fish and 
Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93003 
(telephone number 805/644-1766). The final rule, economic analysis, and 
map will also be available via the Internet at https://ventura.fws.gov/.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, Ventura Fish and 
Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93003 
(telephone 805/644-1766; facsimile 805/644-3958).

SUPPLEMENTARY INFORMATION

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In the 30 years of implementing the Act (16 U.S.C. 1531 et seq.), 
we have 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 
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 biology, limits our ability to fully evaluate the science 
involved, consumes enormous agency resources, and imposes huge social 
and economic costs. We believe 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 ESA 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 473 species or 37 percent 
of the 1,264 listed species in the U.S. under the jurisdiction of the 
Service have designated critical habitat.
    We address the habitat needs of all 1,264 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. We believe that it is 
these measures that may make the difference between extinction and 
survival for many species.
    We note, however, that two courts found our definition of adverse 
modification to be invalid (March 15, 2001, decision of the U.S. Court 
of Appeals for the Fifth Circuit, Sierra Club v. U.S. Fish and Wildlife 
Service et al., F.3d 434, and the August 6, 2004, Ninth Circuit 
judicial opinion, Gifford Pinchot Task Force v. U.S. Fish and Wildlife 
Service). In response to these decisions, we are reviewing the 
regulatory definition of adverse modification in relation to the 
conservation of the species.

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 us 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 us with little 
ability to prioritize our 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 to sue relative to critical habitat, and to comply 
with the growing number of adverse court orders. As a result, listing 
petition responses, our 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 
us 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 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 of 1969 (NEPA). None of these costs 
result 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

    Our intent is to discuss only those topics directly relevant to the 
final designation of critical habitat in this rule. For more 
information on Astragalus lentiginosus var. piscinensis, refer to the 
final listing rule for the taxon that was published in the Federal 
Register on October 6, 1998 (63 FR 53596), or the proposed designation 
of critical habitat for the taxon published on June 4, 2004 (69 FR 
31552).
    In the proposed critical habitat designation, we stated that it was 
unlikely that Astragalus lentiginosus var. piscinensis was present on a 
privately owned parcel in Township 6, South Range 33 East, section 18 
and did not propose designating the parcel as critical habitat. 
However, we have determined that 8 individuals of the

[[Page 33775]]

listed plant taxon were present on or immediately adjacent to this 
parcel in 1992, and 1 individual was present in 2000. For more 
information, see the ``Criteria Used to Identify Critical Habitat'' 
section of this final rule.
    Also, after the proposed rule was published, we received several 
documents that pertain to the Five Bridges Aggregate Pit that is 
operated by the Desert Aggregates company, and these documents are 
described in the ``Summary of Changes'' section of this final rule.

Previous Federal Action

    On June 4, 2004, we published a proposed rule to designate 
approximately 8,490 ac (3,435 ha) of land in Mono and Inyo Counties, 
California, as critical habitat for Astragalus lentiginosus var. 
piscinensis (69 FR 31552). In the proposed rule, we included a detailed 
summary of the previous Federal actions completed prior to publication 
of the proposal. The comment period associated with the proposed rule 
closed on August 3, 2004. On December 28, 2004, we published a notice 
of availability of the draft economic analysis (DEA) for the 
designation of critical habitat for A. l. var. piscinensis, and 
reopened the comment period for the proposed rule and DEA (69 FR 
77703). This second comment period closed on January 27, 2005.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for Astragalus lentiginosus var. 
piscinensis in the proposed rule published on June 4, 2004 (69 FR 
31552). We also contacted appropriate Federal, State, and local 
agencies, one Tribe, scientific organizations, and other interested 
parties and invited them to comment on the proposed rule. During the 
comment period that opened on June 4, 2004, and closed on August 3, 
2004, we received 11 comment letters directly addressing the proposed 
critical habitat designation: 5 from peer reviewers, 2 from 
environmental groups, 4 from companies or individuals, and none from 
local, State, or Federal agencies or Tribes.
    During the comment period that opened on December 28, 2004, and 
closed on January 27, 2005, we received four comment letters addressing 
the proposed critical habitat designation and the DEA. Of these latter 
comments, one was from a peer reviewer, one was from an environmental 
group, and two were from a company or individual. None were from local, 
State, or Federal agencies, or Tribes. For those letters received 
during both comment periods, five commenters supported the designation 
of critical habitat for A. l. var. piscinensis and one opposed the 
designation. Seven entities responded with comments or information, but 
did not express support or opposition to the proposed critical habitat 
designation. Comments received during both comment periods are 
addressed in the following summary and incorporated into the final rule 
as appropriate. We did not receive any requests for a public hearing.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from nine knowledgeable 
individuals with scientific expertise that included familiarity with 
Astragalus lentiginosus var. piscinensis or the habitat the taxon 
requires, the geographic region in which the taxon occurs, and 
conservation biology principles. We received responses from six 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.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding critical 
habitat for the Astragalus lentiginosus var. piscinensis, and 
incorporated them into the final rule as appropriate.

Peer Review Comments

Issue 1: Hydrology
    Comment 1: One peer reviewer noted that changes in aquifer 
conditions have the potential to adversely affect the quality of 
habitat upon which the endemic plant and animal species depend in Fish 
Slough. Another peer reviewer noted that many of the threats affecting 
Astragalus lentiginosus var. piscinensis habitat have also caused the 
extinction, or decreases in the abundance and distribution, of several 
other species occupying springs in the southwestern United States.
    Our Response: We recognize that the threats affecting or 
potentially affecting Astragalus lentiginosus var. piscinensis include 
many of the same factors that have caused the extinction or reduction 
in the distribution and abundance of other species that occupy riparian 
and wetland habitats in the southwestern United States. We agree that 
changes in hydrologic conditions have the potential to affect the 
quality of the alkaline habitat that A. l. var. piscinensis depends 
upon. We have, therefore, included a primary constituent element (PCE) 
in this final rule that reflects the hydrologic conditions needed by 
the species to provide suitable periods of soil moisture and chemistry 
for A. l. var. piscinensis germination, growth, reproduction, and 
dispersal.
    Comment 2: Two peer reviewers expressed concerns that ground water 
pumping activities outside, or near the boundary of, the proposed 
critical habitat unit may adversely affect the water table or spring 
discharge in Fish Slough, and therefore, affect the quality of habitat 
in Fish Slough.
    Our Response: We agree that ground water pumping activities could 
potentially affect the character of wetland or riparian habitat in Fish 
Slough. A portion of the Five Bridges Aggregate Pit was included in the 
southern portion of the proposed critical habitat unit. The expansion 
of the pit will occur in multiple phases and include ground disturbance 
and the pumping of ground water (Secor International Incorporated and 
Lilburn Corporation 2004). One documented occurrence (California 
Natural Diversity Data Base 2004) of Astragalus lentiginosus var. 
piscinensis occurs within 1,600 to 4,600 feet (ft) (488 to 1,402 meters 
(m)) of phase 1 of the planned expansion project. If the pumping 
activities alter the soil moisture and chemistry of the area where A. 
l. var. piscinensis occurs, then germination, growth, reproduction, and 
dispersal of the species could be adversely affected. Our concern 
regarding the pumping activity is highlighted by the fact that meadows 
depending on ground water exist in, and immediately adjacent to, phases 
1 and 2 of the proposed mine expansion. Past pumping activity has been 
identified as a factor affecting the soil moisture and plant 
communities in these habitats (Secor International Incorporated and 
Lilburn Corporation 2004). We will periodically review monitoring data 
to determine if ground water pumping is affecting the local water 
table.
    Comment 3: One peer reviewer noted it can be difficult to attribute 
the current hydrologic conditions in a given area to specific 
anthropogenic activities, climate, or other environmental factors 
because they may occur during different time frames. Another reviewer 
noted it is not possible, at the present time, to specifically identify 
the factor(s) that are responsible for the decline in the spring 
discharge in the Fish Slough area that has occurred since the early 
1920s.
    Our Response: We agree that some factors influencing the habitats 
or

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species in Fish Slough have occurred on a short-term temporal scale, 
while other factors have occurred over a longer period of time. We also 
agree it is sometimes difficult to attribute specific activities or 
factors to particular changes in the hydrologic conditions at Fish 
Slough. We did not attempt to attribute the decline in spring discharge 
in Fish Slough to specific activities or factors. We believe a 
combination of activities or factors, including anthropogenic 
activities, climate, and environmental factors, are likely to affect 
the hydrology of Fish Slough and the alkaline habitat occupied by 
Astragalus lentiginosus var. piscinensis. We fully support activities 
that are designed to, and result in, collection of additional data that 
can be used to understand the hydrologic and geologic features that 
promote the creation and maintenance of alkaline habitat upon which A. 
l. var. piscinensis depends. Such data will create a greater 
opportunity to proactively manage the critical habitat unit described 
in this final rule, and thereby manage for the conservation of A. l. 
var. piscinensis.
    Comment 4: One peer reviewer noted that the proposed rule appeared 
to have contradictory text when it suggested Astragalus lentiginosus 
var. piscinensis was adversely affected by reduced water availability 
(that may be associated with ground water pumping activities in areas 
adjacent to Fish Slough), and by an overabundance of water (resulting 
from storage of water behind a berm near Fish Slough Lake).
    Our Response: Activities affecting the amount, distribution, and 
character of alkaline habitat that Astragalus lentiginosus var. 
piscinensis depends upon have the potential to affect the taxon. Some 
land management activities in Fish Slough have created increased levels 
of soil moisture in particular areas, and this species cannot tolerate 
excessive levels of inundation. In other instances, reductions in the 
amount of water discharging from springs have likely reduced the 
acreage or affected the chemistry of alkaline habitat that historically 
occurred in Fish Slough. Both of these changes have likely affected A. 
l. var. piscinensis because there may be less habitat for the taxon to 
occupy, or the chemistry of that habitat may no longer be optimum for 
it. Astragalus lentiginosus var. piscinensis occupies a relatively 
narrow ecological niche, and the taxon can be adversely affected by 
either too much or too little water.
    Comment 5: One peer reviewer suggested that the findings described 
in a report prepared by MHA Environmental Consulting, Inc. (MHA 2001) 
should be described in greater detail in the final rule. These findings 
suggest that ground water levels and spring discharges could decline in 
Fish Slough as a result of particular pumping activities outside the 
critical habitat unit.
    Our Response: MHA (2001) provided a preliminary hydrologic model 
that described the groundwater flow system in the Tri-Valley area. The 
Tri-Valley area includes Benton, Hammil, and Chalfant Valleys, which 
are located 2 to 30 miles (mi) (5 to 48 kilometers (km)) east and 
northeast of Fish Slough. Intensive ground water pumping activities in 
the Hammil-Chalfant Valley area have occurred, and water levels have 
declined over the last 10 to 20 years, suggesting that pumping 
activities are depleting the amount of groundwater underneath the 
wells. Because the surface elevation decreases from Benton Valley in 
the north to Chalfant Valley in the south, and because Fish Slough is 
lower in elevation than all three of these valleys, groundwater tends 
to move in a southerly or southwesterly direction toward Fish Slough or 
toward Chalfant Valley east of Fish Slough. Therefore, there may be a 
potential for water diversion activities in Chalfant and Hammil Valleys 
to adversely affect the amount of water that discharges from springs in 
Fish Slough (MHA 2001). Alternatively, it may also be possible that 
pumping activities in these two valleys affect the hydrostatic pressure 
within the local aquifer and thereby influence the water table in Fish 
Slough.
    Astragalus lentiginosus var. piscinensis occupies alkaline soils 
that form as a result of spring discharge in Fish Slough. If 
groundwater pumping activities east or northeast of Fish Slough affect 
spring discharge or the hydrostatic pressure in Fish Slough, there may 
be a potential that the soil moisture or chemistry conditions in 
habitat where A. l. var. piscinensis occurs could be altered. If these 
changes were to occur, plant reproduction or persistence could be 
adversely affected.
Issue 2: Grazing
    Comment 6: One peer reviewer stated that controlling livestock 
grazing in upland areas is necessary to minimize the trampling of 
potential food resources that may be used by native bee species. The 
reviewer also stated that grazing in habitat used by bee species should 
not occur before, during, or after the period when host plants bloom.
    Our Response: We would agree with the peer reviewer that grazing 
could affect the habitat used by insect species that pollinate 
Astragalus lentiginosus var. piscinensis, but that would depend on the 
number of cattle involved. The Los Angeles Department of Water and 
Power (LADWP) has issued a lease to one individual that intermittently 
turns out a limited number of cattle and horses in Fish Slough on some 
of the lands that agency owns. The number of cattle, and length of time 
they are authorized to be in Fish Slough, has been reduced in recent 
years in an effort to reduce the potential that A. l. var. piscinensis 
is trampled or its habitat adversely affected. At the present level of 
grazing within the area designated for A. l. var. piscinensis, any 
impacts to pollinators would likely be minor. We have also encouraged 
LADWP to complete a management plan for the grazing allotment that 
would provide specific prescriptions that describe how grazing-related 
effects to A. l. var. piscinensis and associated habitat could be 
minimized.
    Comment 7: One peer reviewer asked if we had used statistical tests 
to determine if there was a significant difference in the abundance of 
Astragalus lentiginosus var. piscinensis in grazed and ungrazed plots.
    Our Response: We have not employed statistical methods to determine 
if the abundance of Astragalus lentiginosus var. piscinensis in grazed 
and ungrazed plots is significantly different. This type of analysis is 
beyond the scope of this rule making in that it does not identify or 
evaluate areas to be considered as critical habitat for A. l. var. 
piscinensis.
Issue 3: Delineation of the Proposed Unit Boundary
    Comment 8: One peer reviewer suggested that the proposed critical 
habitat boundary may be too small to ensure the conservation of 
Astragalus lentiginosus var. piscinensis because the source areas that 
are likely to provide the water that discharges in Fish Slough are 
outside the critical habitat unit. Another reviewer felt that 
delineating a larger critical habitat unit to include the aquifer 
contributing to the springs and near-surface ground water in Fish 
Slough was not warranted at this time. This reviewer stated that 
insufficient information is available to identify the precise location 
of the source(s) of the water that promote the presence of the alkaline 
habitat upon which A. l. var. piscinensis depends.
    Our Response: We considered delineating a critical habitat unit 
boundary that includes the source areas that provide water to Fish 
Slough such as: (1) Casa Diablo Mountain area northwest of Fish Slough; 
(2) the nearby Tri-Valley east and northeast of Fish Slough; or (3) a 
combination of these

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two areas (Bureau of Land Management (BLM) 1984; MHA 2001). We 
determined that information on the location of the source(s) of the 
water that sustain the alkaline habitat upon which Astragalus 
lentiginosus var. piscinensis depends is not available at the present 
time. As a result, we did not include the above mentioned areas in the 
critical habitat unit. We encourage local land managers and entities 
with expertise in hydrology to collect additional data that would more 
precisely determine the location of the source(s) of the water that 
discharge in Fish Slough and sustain A. l. var. piscinensis habitat. We 
believe this information is necessary to proactively manage this listed 
plant for its conservation.
    Comment 9: One peer reviewer questioned why the area south of the 
McNally Canals was included in the proposed critical habitat unit when 
the proposed rule stated this area contained little suitable habitat 
for Astragalus lentiginosus var. piscinensis. The individual also 
recommended that we specifically refer to a particular McNally Canal 
(north vs. south) when referring to the drainage canal network.
    Our Response: We recognize there are two artificial ditches in the 
southern portion of the proposed critical habitat unit, the North and 
South McNally Canals, and have provided text in this final rule that 
specifically refers by name to one or both of the canals. We have 
reviewed recent information that suggests that habitat quality in this 
area has been degraded by past pumping and water spreading activities, 
grazing, or agricultural activities (Pavlik 1998, 1999; The Twining 
Laboratories and ESR, Inc. 2004). We have determined that the area 
south of the southern McNally Canal is unoccupied and is not essential 
for the conservation of Astragalus lentiginosus var. piscinensis. We 
have, therefore, not included the area south of the southern McNally 
Canal in the designated critical habitat unit (see Summary of Changes 
from the Proposed Rule section).
    Even though the mine expansion area, south of the southern McNally 
Canal, is not essential to the conservation of the taxon, we note that 
ground water pumping in the area where future mining activities are 
scheduled to occur is likely to create a cone of depression for ground 
water (Secor International Incorporated and Lilburn Corporation 2004). 
If such an effect occurs, we are concerned that the pumping may affect 
the PCEs (e.g., alkaline soils, plant communities, and hydrologic 
conditions) in the portion of the designated critical habitat unit 
directly adjacent to the mine expansion area.
    Comment 10: One peer reviewer believes our rationale for including 
a 3,281 ft (1,000 m) wide upland area around the habitat occupied by 
Astragalus lentiginosus var. piscinensis requires additional support 
because we based it on a study done in Germany. The reviewer stated 
that the study results may not be applicable to Fish Slough because the 
two areas have different habitats, climate, and host plant composition.
    Our Response: When we delineated the perimeter of the proposed 
critical habitat unit, we assessed the significance of the information 
collected by Steffan-Dewenter and Tscharntke (2000) in Germany. We were 
influenced by their findings that showed that alteration and 
fragmentation of habitat used by pollinator species can lead to reduced 
levels of plant pollination. After we published the proposed rule in 
the Federal Register, another journal article was published that stated 
``pollination services provided by native bee communities in California 
strongly depended on the proportion of natural upland habitat within 1-
2.5 km of the farm site'' (Kremen et al. 2004). We conclude that 
alteration and fragmentation of habitat used by bee species is also 
likely to result in reduced levels of pollination in Astragalus 
lentiginosus var. piscinensis. This is because a reduction in the 
number of pollinators in an area is likely to reduce the number of bees 
that could potentially be available to pollinate A. l. var. 
piscinensis.
    In the proposed rule, we noted that successful reproduction for 
Astragalus lentiginosus var. piscinensis requires bee pollination. The 
specific bee species that pollinate the plant have not been identified, 
but at a minimum, include bumblebees (Bombus sp.) in the family Apidae 
(Mazer and Travers 1992). Bumblebees may forage many kilometers from a 
colony (Heinrich 1979), and the distance they will fly to forage is not 
unique. European honeybees (Aphis mellifer) are also known to have an 
ability to forage a similar distance (Beekman and Ratnieks 2000). We 
have, therefore, been conservative in defining a 3,281 ft (1,000 m) 
wide boundary around the habitat occupied by A. l. var. piscinensis.
    The conservation of this upland area in Fish Slough is essential to 
ensure that alteration and fragmentation of habitat used by pollinator 
species does not occur, so that adequate levels of Astragalus 
lentiginosus var. piscinensis pollination and seed formation can 
continue. We also note that none of the agencies owning land within the 
critical habitat unit have expressed any concern regarding the 3,281 ft 
(1,000 m) wide upland area around the alkaline habitat occurring in the 
critical habitat unit.
    Comment 11: One peer reviewer recommended that the unit boundary be 
redrawn to reflect local topographic differences, i.e., expand its 
boundary to the west, and narrow it to the east. This recommendation 
was based on the assumption that bee pollinators are less likely to fly 
up steep slopes, and the watershed to the west of where Astragalus 
lentiginosus var. piscinensis occurrences is larger. Therefore, it is 
likely to have a greater influence on the surface hydrology that may 
affect the plant's alkaline habitat.
    Our Response: The final rule designating critical habitat for 
Astragalus lentiginosus var. piscinensis has retained a unit boundary 
that has a symmetrical shape because we are not aware of data 
suggesting that likely A. l. var. piscinensis pollinators would be 
unable to fly up the relatively short (280 ft (85 m) high) ridge east 
of where the plant occurs. We agree that surface topography is less 
steep west of where A. l. var. piscinensis occurs, and there is a 
larger topographic area in this direction that could potentially affect 
the surface water hydrology of Fish Slough. The available hydrologic 
data do not suggest that surface water inflows or human activities 
within the 1.5 mi (2.4 km) distance referred to in the peer reviewer's 
comment letter affect the character of the alkaline habitat occupied by 
the plant species. Therefore, we are not able to identify the benefit 
that might be associated with shifting the unit boundary to the west, 
and have retained the original configuration of the unit boundary in 
the final rule.
Issue 4: Miscellaneous Topics
    Comment 12: One peer reviewer suggested that new studies should be 
completed to identify the taxonomic identity and habitat requirements 
of the insects that pollinate Astragalus lentiginosus var. piscinensis. 
Habitat essential to conserve A.l. var. piscinensis could then be 
defined more precisely. Another reviewer advocated new studies that 
could provide a greater understanding of the hydrology of the Fish 
Slough area.
    Our Response: We welcome any additional data to characterize the 
hydrology that affects Fish Slough and the ecology of the insect 
species that pollinate Astragalus lentiginosus var. piscinensis. 
However, we cannot delay our decision to allow for the

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development of additional data, and have used the best available 
scientific data in our critical habitat designation.
    Comment 13: A peer reviewer suggested we should have organized 
particular portions of the proposed rule in a different manner than was 
presented. The reviewer also suggested we conduct additional 
statistical analyses to identify and determine the significance of 
particular relationships between species abundance and environmental 
factors, or trends in plant numbers. He questioned why we summarized 
data on population trends for Astragalus lentiginosus var. piscinensis 
in 5-year increments (i.e., 1991-1996 and 1997-2002), and asked if the 
overall trend in the available population data was consistent with 
trends in particular plots that have been monitored.
    Our Response: The format and organization of the proposed rule 
followed the procedural guidance for the preparation of rules 
established by the Service and the Federal Register. We appreciate the 
peer reviewer's suggestions, and will consider his comments as new 
rules are developed in the future.
    We agree it would be beneficial to conduct additional statistical 
analyses to identify and determine the significance of particular 
relationships between species abundance and environmental factors, or 
trends in plant numbers. These types of analyses are routinely done 
during a status review for a listed species but are not commonly done 
during a rule making process for critical habitat. In this case, the 
additional analysis suggested would not help identify areas for the 
critical habitat designation. To provide readers with an indication of 
how the abundance of Astragalus lentiginosus var. piscinensis has 
changed over time, and because data were available for a 12-year 
period, we chose to summarize population trend data for A. l. var. 
piscinensis in two time periods of equal duration, i.e., 1991-1996 and 
1997-2002.
    Comment 14: One peer reviewer suggested that, instead of providing 
personal communications between Service staff and other individuals, we 
should provide information contained within peer-reviewed journals.
    Our Response: We agree with the standard practice of providing 
information that is contained within published documents when these are 
available. Some of the information described in the proposed rule, 
e.g., population survey data that were collected by staff from the BLM 
or LADWP, was cited as a personal communication because this 
information only exists in tabular form in agency files and does not 
exist as a publication or formal report. The Act requires that we use 
the best available scientific data, but does not require that we only 
use data in published documents. Also, our Policy on Information 
Standards Under the Endangered Species Act, published in the Federal 
Register on July 1, 1994 (59 FR 34271), section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (P.L. 106-
554; H.R. 5658) and our associated Information Quality Guidelines, 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions represent the best scientific and commercial data 
available.
    Comment 15: Two peer reviewers supported our inclusion of upland 
areas outside of, but adjacent to, where Astragalus lentiginosus var. 
piscinensis occurs as these areas are likely to be used by insect 
species that pollinate it. One peer reviewer suggested that the PCE 
involving upland areas be modified to provide a stronger emphasis on 
the need to proactively manage pollinator species, surface water 
hydrology, and nonnative plant species by including an upland buffer.
    Our Response: We agree that the upland areas likely contain the 
burrows and cover sites that are used by the insect species that 
pollinate Astragalus lentiginosus var. piscinensis, and are essential 
for the conservation of this species. Although we agree with the peer 
reviewer's suggestion that multiple factors in the upland portion of 
the designated critical habitat unit require special management, we did 
not designate the upland area as a buffer. The upland area has one or 
more of the PCE's for Astragalus lentiginosus var. piscinensis and is 
essential to the conservation of the species.

Public Comments

    We reviewed all comments received from the public for substantive 
issues and new information regarding critical habitat for the 
Astragalus lentiginosus var. piscinensis, addressed them in the 
following summary, and incorporated them into the final rule as 
appropriate.
Issue 1: Biological Justification and Methodology
    Comment 16: One commenter disagreed with a suggestion in the 
proposed rule that water diversion activities have taken place at the 
Five Bridges Aggregate Pit. The commenter instead characterized the 
groundwater table as high in this area, and the mine is required to 
pump water from the current operating pit, but this water is pumped 
into on-site recharge basins. Therefore, the ground water is recharged, 
not diverted. The same commenter also inferred that the Service assumed 
that mining company staff did the pumping, and the commenter stated 
that staff from the LADWP did the pumping.
    Our Response: We continue to believe that groundwater in the 
vicinity of the mining activities has been diverted because ground 
water has been moved from one location to another. Our statement is 
based on the fact that water was pumped from sumps that were 
constructed near the pits where gravel was mined, and then conveyed to 
another location that was several hundred to a few thousand meters from 
the location where water was collected. It is possible that the 
diverted water is recharged at the point where it is released after it 
is diverted.
    We do not state in the proposed rule which entity conducted the 
water diversion activities that adversely affected riparian vegetation 
down-gradient of the mine. We only stated that pumping took place and 
riparian vegetation was adversely affected.
    Comment 17: One commenter requested that the critical habitat 
boundary be delineated to include the entire historic range of 
Astragalus lentiginosus var. piscinensis.
    Our Response: The critical habitat unit delineated in this final 
rule includes all of the known locations that were occupied by 
Astragalus lentiginosus var. piscinensis at the time of listing.
    Comment 18: One commenter requested we extend the deadline for 
submitting comments.
    Our Response: Our first comment period was open for 60 days, from 
June 4, 2004, until August 3, 2004. We reopened the comment period on 
December 28, 2004, for an additional 30 days when we published a notice 
of availability of the DEA for the designation of critical habitat for 
Astragalus lentiginosus var. piscinensis (69 FR 77703). This gave the 
public an opportunity to review and comment on the DEA and proposed 
rule concurrently. This second comment period closed on January 27, 
2005. Unfortunately, our ability to accept comments and work with 
stakeholders regarding the critical habitat designation for A. l. var. 
piscinensis is limited by a deadline imposed by a court order.
    Comment 19: One commenter noted that the long-term effect of 
designating critical habitat was beneficial, particularly because a 
large portion of

[[Page 33779]]

the local economy in the Fish Slough area relies on biological 
resources and scenery that attracts tourists to the area.
    Our Response: We recognize that one of the predominate sources of 
income for businesses in the town of Bishop and the Owens Valley area 
is derived from outdoor recreational activities and ecotourism. We note 
that the protection of Astragalus lentiginosus var. piscinensis and its 
habitat is beneficial for a variety of reasons, including the 
conservation of biological resources, an environment that people use 
and enjoy, and a local growing economy.
    Comment 20: A commenter that operates a grazing lease in Fish 
Slough suggested that cattle grazing activities are compatible with 
stable populations of Astragalus lentiginosus var. piscinensis, based 
on the number of plants that were observed in ``zones'' surveyed in 
1992 (Novak 1992), and again in 2000.
    Our Response: To show how the number of Astragalus lentiginosus 
var. piscinensis plants has varied through time, we presented data that 
were collected in monitoring plots on LADWP-owned land, as compared to 
the number of individuals within particular zones. We believe the plot 
data provide a more precise and robust assessment of how plant numbers 
have changed over time because the plots are sampled on an annual 
basis. These plots are designed to quantify the number of individuals 
in a repeatable manner and in well-defined, discrete areas.
    When data collected from one grazed plot are compared between 1991-
1996 and 1997-2002, these data suggest that the abundance of Astragalus 
lentiginosus var. piscinensis within this plot increased. During this 
same period, the number of A. l. var. piscinensis individuals decreased 
in two other plots where grazing occurred, and in two plots where 
grazing did not occur. We, therefore, believe the plot data do not 
provide definitive proof that grazing activities are compatible with 
stable populations of A. l. var. piscinensis. Within the zones referred 
to in the comment letter, the number of A. l. var. piscinensis 
individuals in the ungrazed zones has decreased in three zones and 
increased in one zone.
    Comment 21: One commenter suggested that the Fish Slough Area of 
Critical Environmental Concern (ACEC) should be replaced with an area 
that is managed under a habitat conservation plan (HCP).
    Our Response: HCPs cannot serve as a viable substitute for an ACEC 
because they exist for different reasons and are meant to serve 
different functions. An ACEC is a special land use classification that 
is designated by the BLM on lands they manage. HCPs, developed within 
the context of the Endangered Species Act, are documents that are 
completed when a non-Federal entity anticipates that incidental take of 
a listed animal species is likely to occur as a result of a project 
they propose. Because Astragalus lentiginosus var. piscinensis is a 
listed plant taxon, and the LADWP and California Department of Fish and 
Game (CDFG) have not determined their activities in Fish Slough are 
likely to result in the take of a listed animal, e.g., Owens pupfish 
(Cyprinodon radiosus), the development of a HCP is not warranted or 
appropriate at this time.
    Comment 22: A commenter noted that the proposed rule did not 
attempt to summarize all of the demographic data for all of the 
monitoring plots that occur on land owned by BLM and LADWP, creating a 
bias because some data are presented in the proposed rule and some are 
not.
    Our Response: Rules in the Federal Register that propose critical 
habitat are not intended to serve as a mechanism for reviewing all of 
the demographic data that may pertain to a species (e.g., the number of 
adult and juveniles that may be present at select locations across a 
species' range). We believe such a synthesis is more appropriate in a 
document that would evaluate the taxon's status, or that the 
demographic data be used to develop strategies that are designed to 
provide alternative management scenarios that will benefit the species. 
The process for designating critical habitat for listed species focuses 
on identifying those habitat-related features that are essential for 
the species' conservation, and we used the data that were appropriate 
to this task.
    Comment 23: One commenter suggests cattle grazing is repeatedly and 
wrongfully referred to as a factor that adversely affects Astragalus 
lentiginosus var. piscinensis.
    Our Response: The proposed rule does not suggest that all cattle 
grazing, no matter how light or intense, would adversely affect 
Astragalus lentiginosus var. piscinensis. Moderate to intense levels of 
livestock grazing have been documented to adversely affect at least one 
other Astragalus taxon in southern California (e.g., Astragalus 
monoensis (Sugden 1985)), and we believe it is likely that A. l. var. 
piscinensis would be adversely affected if moderate to large numbers of 
cattle were allowed to graze in Fish Slough. Such adverse effects would 
arise if listed plants were eaten by cattle, habitat used by pollinator 
species were trampled or crushed, or the amount of habitat that could 
be occupied by A. l. var. piscinensis was reduced. We have not 
discounted the possibility, however, that light levels of cattle 
grazing may be benign.
    Comment 24: A commenter suggested that the designation of critical 
habitat for Astragalus lentiginosus var. piscinensis implies that we 
are disproportionately preoccupied with the management of a single 
taxon.
    Our Response: Though this critical habitat designation process is 
limited to a single taxon, we agree that the management objectives for 
Fish Slough should consider all of the plant and animal communities in 
this area. We continue to support this general principle as it is 
described in the Owens Basin Wetland and Aquatic Species Recovery Plan, 
Inyo and Mono Counties, California (Service 1998). The recovery plan 
suggests a conservation area management plan for Fish Slough should be 
completed. We believe the development of such a plan would maximize the 
opportunity to manage all of the resources in Fish Slough in a more 
productive manner. Thus far, we have not developed a plan with the BLM 
or CDFG due to a lack of funds.
    Comment 25: A commenter noted that the proposed rule emphasized the 
need to ``ensure an adequate supply of pollinators.'' They asked how 
many pollinators are required to sustain Astragalus lentiginosus var. 
piscinensis, what the distribution of these insects needed to be, and 
what the requirements of these insects were.
    Our Response: Quantitative data that specifically pertain to the 
items listed by the commenter are not available for the species that 
pollinate Astragalus lentiginosus var. piscinensis. Such data are 
rarely available, and we have used the best available scientific data 
in our critical habitat designation. We believe the references cited in 
the rules proposing and designating critical habitat for A. l. var. 
piscinensis are directly applicable to the taxon and the needs of its 
pollinators, and provide a solid foundation for identifying the 
geographic boundary and PCEs that relate to the critical habitat unit.
    Comment 26: A commenter suggested that additional information was 
needed to more effectively manage Astragalus lentiginosus var. 
piscinensis and its habitat to understand how herbivory by native 
animals and water tables affected the taxon. They also thought it was 
important to identify the factors that caused the mortality, or 
affected the recruitment of, juvenile A. l. var. piscinensis 
individuals.
    Our Response: We agree that acquisition of such data would be 
extremely useful, and improve the

[[Page 33780]]

ability of land managers to conserve the listed plant taxon. We 
believe, however, that processes that historically occurred, e.g., 
water table fluctuations that may result from earthquakes, or herbivory 
by native animals, are normal and should continue, and that management 
of the Fish Slough area should focus on the restoration of natural 
ecosystem processes and functions.
Issue 2: Legal and Procedural
    Comment 27: A commenter challenged statements in the proposed rule 
that the designation of critical habitat is of little additional value 
for most listed species.
    Our Response: Although the designation of critical habitat does 
not, in and of itself, restrict human activities within an area or 
mandate any specific management or conservation actions, it does help 
focus Federal, Tribal, State, and private conservation and management 
efforts in such areas. A critical habitat designation benefits species 
conservation primarily by identifying important areas and describing 
the features within those areas that are essential to conservation of 
the species, thereby alerting public and private entities to the areas' 
importance. In addition, designating critical habitat may also provide 
some educational or informational benefits.
Issue 3: Economic Issues
    Comment 28: One commenter noted that many of the conservation 
efforts quantified in the DEA benefit multiple species, as well as 
unique alkaline meadows and significant scenic and cultural values. 
They stated it is not appropriate to allocate the total cost of 
conserving all of these biological resources to Astragalus lentiginosus 
var. piscinensis. Costs of consultations and conservation measures 
should be prorated by species that benefit from the critical habitat 
designation and other conservation actions.
    Our Response: To the extent possible, the economic analysis 
distinguishes costs related specifically to Astragalus lentiginosus 
var. piscinensis conservation where multiple species are subject of a 
single conservation effort or section 7 consultation. In the case that 
another species clearly drives a project modification or conservation 
effort, the associated costs are appropriately not attributed to A. l. 
var. piscinensis.
    In the case of administrative consultation costs, the DEA applies a 
standard cost model used to estimate a range of administrative costs of 
consultation (see Exhibit 4-1 in the DEA). These costs are considered 
representative of the potential range of costs typically experienced 
for a consultation regarding a single species. That is, the cost model 
assumes that consultations involving more than one species typically 
involve higher administrative costs. Accordingly, although 
consultations described in the DEA may involve multiple species, the 
administrative costs as estimated by applying this cost model are 
considered to be predictive of those costs due specifically to the 
designation of critical habitat for Astragalus lentiginosus var. 
piscinensis.
    Comment 29: One commenter felt that including the cost of managing 
the Fish Slough ACEC in the DEA overstates costs associated with 
critical habitat designation for Astragalus lentiginosus var. 
piscinensis. Every direct cost of managing the ACEC, except the 
propagation of A. l. var. piscinensis, benefits a number of species and 
should therefore not be considered critical habitat designation costs.
    Our Response: As mentioned above, for each consultation and 
conservation effort, the DEA attempts to identify costs specifically 
related to Astragalus lentiginosus var. piscinensis. In some instances, 
however, it is not possible to determine the relative contribution of 
the multiple causative factors to the implementation of a conservation 
effort. For example, management of the Fish Slough ACEC by the BLM, 
including posting signage to mark the presence of sensitive species, 
and prescribed burns to control vegetation, is undertaken to benefit 
all Fish Slough resources, including A. l. var. piscinensis. In these 
instances, the DEA presents the full cost of the conservation effort. 
Importantly, however, the DEA only includes the costs of these efforts 
within the proposed critical habitat designation for A. l. var. 
piscinensis. That is, it is assumed that ACEC management efforts 
outside of the proposed critical habitat designation are not undertaken 
to benefit A. l. var. piscinensis, and are therefore not included in 
the DEA.
    Comment 30: Another commenter stated that the DEA should include a 
rigorous analysis of the continued status of the Fish Slough as an 
ACEC. This commenter stated that the Astragalus lentiginosus var. 
piscinensis critical habitat designation constitutes a shift to a 
single species management objective rather than a multi-species 
management plan, and the designation will only increase the 
administrative and management burden of the ACEC area.
    Our Response: The DEA quantifies economic effects of the critical 
habitat designation for Astragalus lentiginosus var. piscinensis, along 
with the economic effects of protective measures taken as a result of 
the listing of A. l. var. piscinensis or other Federal, State, and 
local laws that aid habitat conservation in the areas proposed for 
critical habitat. This information is intended to assist the Secretary 
in determining whether the benefits of excluding particular areas from 
the designation outweigh the benefits of including those areas. It is, 
therefore, beyond the scope of the DEA to include an analysis of the 
benefit of preserving the Fish Slough region as an ACEC managed by the 
BLM.
    Comment 31: A commenter stated that a cumulative economic analysis 
should be developed to reflect the potential that critical habitat 
could be proposed or designated for the other 22 species identified in 
the Owens Basin recovery plan; i.e., the DEA should include evaluation 
of cumulative impacts of additional designations.
    Our Response: The Act does not require us to conduct assessments to 
quantify the cumulative cost of designating critical habitat in one 
general area. Also, we do not believe it is reasonable to calculate the 
potential cost of designating critical habitat for 22 species 
identified in the recovery plan because almost all of these species 
have not been listed as threatened or endangered, and we only designate 
critical habitat for listed species. Furthermore, for the three species 
that are listed and covered under the Owens Basin recovery plan, only 
one other species besides Astragalus lentiginosus var. piscinensis has 
designated critical habitat, i.e., the Owens tui chub (Gila bicolor 
snyderi) (August 5, 1985, 50 FR 31592), and there are no current plans 
to propose critical habitat for the Owens pupfish (Cyprinodon radiosus) 
as it was listed in 1967, which is before critical habitat amendments 
were added to the Act (August 5, 1985, 50 FR 31592). The southwestern 
willow flycatcher (Empidonax traillii extimus) does occur in Owens 
Valley, and critical habitat for the taxon has been proposed (October 
12, 2004, 69 FR 60705); an economic analysis will be prepared in 
conjunction with this listing process, and an estimate of the cost 
associated with the proposed critical habitat will be prepared. Also, 
we have already considered the costs of conducting other management 
activities; see Comment 29.
    Comment 32: Another commenter states the DEA failed to provide a 
balanced assessment of economic benefits and costs in relation to the 
proposed critical habitat designation.
    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

[[Page 33781]]

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 are the value of goods and 
services foregone in order to comply with the effects of the 
designation (e.g., lost economic opportunity associated with 
restrictions on land use). Where data are available, the economic 
analyses do attempt to measure the net economic impact. For example, if 
the fencing of Astragalus lentiginosus var. piscinensis habitat to 
restrict motor vehicles results in an increase in the number of 
individuals visiting the site for wildlife viewing, then the analysis 
would attempt to net out the positive, offsetting economic impacts 
associated with their visits (e.g., impacts that would be associated 
with an increase in tourism spending). However, while this scenario 
remains a possibility, no data was found that would allow for the 
measurement of such an impact, nor was such information submitted 
during the public comment period.
    Most of the other benefit categories submitted by the commenter 
reflect broader social values, which are not the same as economic 
impacts. While the Secretary must consider economic and other relevant 
impacts as part of the final decision-making process under section 
4(b)(2) of the Act, the Act explicitly states that it is the 
government's policy to conserve all threatened and endangered species 
and the ecosystems upon which they depend. Thus, we believe that 
explicit consideration of broader social values for the species and its 
habitat, beyond the more traditionally defined economic impacts, is not 
necessary as Congress has already clarified the social importance. As a 
practical matter, we note the difficulty in being able to develop 
credible estimates of such values as they are not readily observed 
through typical market transactions. In sum, we believe that society 
places the utmost value on conserving any and all threatened and 
endangered species and the habitats upon which they depend, and thus 
the required considerations under section 4(b)(2) of the Act occur in 
light of this basic premise.
    Comment 33: One commenter stated that indirect costs associated 
with reductions in grazing opportunity should not be included in the 
DEA. The reductions in grazing, along with installation and maintenance 
of the grazing exclosure in Fish Slough, have already been instituted 
and are therefore not affected by critical habitat designation. The 
commenter further notes that these conservation efforts are independent 
landowner decisions and not a mandate under the Act and should, 
therefore, not be considered in the DEA. The cost of this conservation 
effort should not be included as a post-designation cost.
    Our Response: The DEA assesses not only the direct economic effects 
of the critical habitat designation, but also the economic effects of 
protective measures taken as a result of the listing of Astragalus 
lentiginosus var. piscinensis or other Federal, State, and local laws 
that also aid habitat conservation in the areas proposed for critical 
habitat designation. The reductions in grazing were a result of 
conversations regarding management of the Fish Slough between the 
lessee of the grazing lands, LADWP (the landowner), and the other 
managing agencies of the Fish Slough (BLM and CDFG). This reduction in 
grazing activity was undertaken to benefit the multiple resources of 
the Fish Slough, including A. l. var. piscinensis, and is therefore 
included in the DEA.
    Comment 34: The DEA seems to imply that the LADWP will bear all the 
costs of maintaining the 80-ac (32-ha) grazing exclosure. The lessee 
has been responsible for much of the costs of maintenance, materials, 
and labor. The following components should be added to predesignation 
impacts: Fencing of the LADWP lease in cooperation with the lessee, 
with materials furnished by LADWP; and the lessee's cost of the 
installment of approximately 3.5 mi (5.6 km) of perimeter and cross 
fencing between 1990 and 1994 for better livestock control and 
vegetation management.
    Our Response: As detailed in sections 4.1.2 and 4.2.2 of the DEA, 
impacts to livestock grazing activities are expected to be incurred by 
both the LADWP for fencing and fence maintenance, and the lessee for 
precluding particular acres of lands from grazing activities. In the 
case that the lessee provides the labor to maintain the exclosure, 
costs to the lessee associated with Astragalus lentiginosus var. 
piscinensis conservation efforts is underestimated. The DEA, however, 
only quantifies impacts of A. l. var. piscinensis conservation efforts 
occurring from the time of the species' listing in 1998 through 20 
years from the final critical habitat designation in 2005. Impacts 
incurred by the lessee between 1990 and 1994 are, therefore, not 
included in the DEA.
    Comment 35: A commenter stated that, following construction of the 
grazing exclosure, the lessee found it necessary to develop a whole 
ranch vegetation management plan to match vegetation requirements with 
the health requirements of the livestock. This effort cost $15,000 to 
$20,000 in consultant fees and meetings. In addition, the lessee had to 
lease additional facilities to ship, receive, and handle livestock 
during the period when Astragalus lentiginosus var. piscinensis 
flowers. These increased production costs for the ranch operation 
should also be included in the analysis.
    Our Response: Lone Tree Cattle Company was contacted following the 
public comment period for the DEA to discuss expected increased 
production costs as a result of Astragalus lentiginosus var. 
piscinensis conservation efforts on its grazing lease. As a result of 
this communication, the revised economic analysis includes additional 
economic impacts to Lone Tree Cattle Company. An additional $15,000 to 
$20,000 is added to the assessment of pre-designation costs to account 
for the development of a vegetation management plan. The costs of 
implementing the vegetation management are speculative at this time as 
the plan has not yet been adopted, and BLM review of the plan is the 
subject of a future hearing by the Department of the Interior (DOI)'s 
Office of Hearing and Appeals. Additionally, the grazing lessee 
acquired an additional lease specifically to avoid grazing on the Fish 
Slough ACEC during periods when A. l. var. piscinensis blooms. This 
resulted in increased costs to the grazing operation of $7,600 to 
$11,000 for purchase of materials for fencing and corral construction, 
and $500 per year for the cost of the additional lease. Potential labor 
costs of construction and maintenance of fencing and corrals on the new 
lease is unknown, but are also expected to increase costs to the 
lessee's grazing operation (Ken Zimmerman, Lone Tree Cattle Company, 
pers. comm. 2005).
    Comment 36: Section 3.2.2 of the DEA should caveat that 
restrictions on grazing in Fish Slough are pending a hearing with the 
DOI, Office of Hearing and Appeals, to address the appropriateness of 
the increased permit restrictions. Further, the lessee is currently 
grazing 60 head of cattle, not 40, as stated in the DEA.
    Our Response: The revised economic analysis will reflect the 
information in the comment letter. The DEA estimates the value per acre 
of lost grazing land based on the economically viable utilization of 
these lands. That is, the number of head of cattle currently grazed is 
divided by the total acreage

[[Page 33782]]

available for grazing and multiplied by the value per head of cattle to 
determine the value per acre of grazing land. This is then applied to 
the 80 ac (32 ha) of land lost to grazing due to the construction of 
the cattle exclosure to protect Astragalus lentiginosus var. 
piscinensis. The DEA incorrectly stated that the lessee grazed 40 head 
instead of the current 60 head. This changes the economically viable 
number of head per acre from 0.02 to 0.03. Therefore, the lost head per 
year on the 80 ac (32 ha) of land lost to grazing increases from 1.6 to 
2.4 head. Applying the value per head of cattle of $1,114, as discussed 
in section 4.1.2 of the DEA, this correction results in a change of 
annual losses to the lessee of $2,760, as opposed to the $1,780 
previously reported in the DEA.
    Comment 37: The Five Bridges Aggregate Pit is located in the 
southern portion of Fish Slough and is subject to active mining 
operations. Plans to expand the pit have resulted in a requirement to 
conduct groundwater monitoring activities. The monitoring activities 
will be completed, regardless of the proximity of the pit to the 
critical habitat designation. A commenter suggested that because the 
groundwater monitoring will benefit a number of species, the costs of 
the monitoring activities should be accordingly prorated. Additionally, 
a reduction in groundwater levels will affect the production of 
downstream mining activities and downstream water extraction; costs 
should also be prorated to account for these human benefits.
    Our Response: Our major concern regarding the potential affect of 
the mining activity and a proposed expansion of the pit on Astragalus 
lentiginosus var. piscinensis was the affect of future mining on 
groundwater levels within Fish Slough. Establishment of a groundwater 
monitoring system using existing and new wells was undertaken, in part, 
to ensure sensitive species, including A. l. var. piscinensis, would 
not be subject to fluctuating groundwater levels.
    The DEA acknowledges that multiple factors contribute to the need 
for mitigation of groundwater effects of the mine operations, including 
California Environmental Quality Act (CEQA) compliance, California 
Surface Mining and Reclamation Act compliance, and general 
consideration of the Fish Slough ACEC. The DEA considers not only the 
direct economic effects of the critical habitat designation, but also 
the economic effects of protective measures taken as a result of the 
listing of Astragalus lentiginosus var. piscinensis or other Federal, 
State, and local laws that aid habitat conservation in the areas 
proposed for critical habitat designation. The costs of groundwater 
monitoring are accordingly included in the DEA, with the recognition 
that this conservation effort would likely be undertaken absent 
consideration for the A. l. var. piscinensis and its habitat. Of note, 
however, the final rule excludes from critical habitat designation the 
area of the Five Bridges Aggregate Pit proposed for designation because 
this area is not occupied by A. l. var. piscinensis and is not 
considered essential to the conservation of the taxon.
    Comment 38: One commenter requested that the data used for 
calculation of costs should be included in the DEA so that the methods 
can be evaluated.
    Our Response: The source of each economic impact as described in 
the DEA is cited within the text or as a footnote to the text. In 
general, costs of conservation efforts were gathered by using budgetary 
information from participating agencies, by consulting