Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Astragalus lentiginosus, 74112-74136 [05-23694]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 239 (Wednesday, December 14, 2005)]
[Rules and Regulations]
[Pages 74112-74136]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-23694]



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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. coachellae (Coachella Valley 
Milk-Vetch); Final Rule

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT74


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Astragalus lentiginosus var. coachellae (Coachella 
Valley 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), herein 
address the designation of critical habitat for Astragalus lentiginosus 
var. coachellae (Coachella Valley milk-vetch) under the Endangered 
Species Act of 1973, as amended (Act). In total, we are designating 
zero acres of critical habitat for Astragalus lentiginosus var. 
coachellae. We identified 17,746 ac (7,182 ha) of local, County, State, 
Federal, and private lands containing features essential to the 
conservation of A.l. var. coachellae in Riverside County. However, all 
habitat with essential features is located within areas to be conserved 
and managed by the draft Coachella Valley MSHCP/NNCP or within areas 
conserved within the Coachella Valley Preserve System under the 
Coachella Valley fringe-toed HCP, and therefore is excluded or exempted 
from critical habitat under section 4(b)(2) or 3(5)(A) of the Act.

DATES: This rule becomes effective on January 13, 2006.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley 
Road, Carlsbad, California 92011. You may obtain copies of the final 
rule and economic analysis from this address or by calling (760) 431-
9440, or from our Internet site at https://carlsbad.fws.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Jim Bartel, Field Supervisor, 
Carlsbad Fish and Wildlife Office (see ADDRESSES section).

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 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 37.5 
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 the August 6, 2004, Ninth Circuit judicial 
opinion, Gifford Pinchot Task Force v. United States Fish and Wildlife 
Service, found our definition of adverse modification was invalid. In 
response to the decision, the Director has provided guidance to the 
Service based on the statutory language. In this rule, our analysis of 
the consequences and relative costs and benefits of the critical 
habitat designation is based on application of the statute consistent 
with the 9th Circuit's ruling and the Director's guidance.

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 coupled 
with the need to avoid the risks associated with noncompliance with 
judicially imposed deadlines, have left the Service with limited 
ability to provide for adequate public participation or to ensure a 
defect-free rulemaking process before making decisions on listing and 
critical habitat proposals. 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 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

    Astragalus lentiginosus var. coachellae is found on loose wind-
blown sands in dunes and flats, and in

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sandy alluvial washes in the northern Coachella Valley area spanning 
roughly from the sandy alluvial washes just east of Cabezon to the 
dunes off Washington Avenue, north and west of Indio in Riverside 
County, California. At the time A. l. var. coachellae was listed under 
the Act in 1998, we were aware that 90 percent of this taxon's 
occurrences were located within 3 mi (5 km) of Interstate 10 from north 
of Indio to Cabezon (Barrows 1987; CNDDB 1996). A majority of these 
occurrences were discovered in and around Snow Creek, Whitewater River 
downstream from the percolation ponds, Mission and Morongo Creeks, the 
Willow Hole Reserve, the Big Dune south of Interstate Highway 10 (I-
10), and the Coachella Valley Preserve (Coachella Valley Association of 
Governments unpublished data 2004). The largest populations of up to 
several thousand plants were found prior to listing in the Big Dune 
area south of I-10, including several thousand plants that were 
discovered again in 2005 (USFWS unpublished data 2005). Other areas 
containing large populations that were known prior to listing that 
contain from several hundred to a thousand plants include the Willow 
Hole reserve area, Snow Creek area, and Coachella Valley Preserve 
(Coachella Valley Association of Governments unpublished data 2004).
    There also exists a disjunct Astragalus lentiginosus var. 
coachellae population that was known at the time of listing. This 
population is located approximately 50 miles (80 km) east of the 
Coachella Valley in the Chuckwalla Valley near the City of Desert 
Center. This population has only been found in a limited extent on and 
near a sandy roadside berm along a 5-mile (8-km) stretch of Highway 
177, northeast of the City of Desert Center. The Palen Dunes, located 
approximately 3 miles (5 km) south of Highway 177, contain sandy soils 
that appear suitable for A. l. var. coachellae. However, it is 
uncertain whether the plant occurs in this area since surveys are 
limited to only one unsuccessful survey attempt in 1998 (Bureau of Land 
Management, unpublished data 2001a).
    Please refer to the final listing rule published in the Federal 
Register on October 6, 1998 (63 FR 53596), for a detailed discussion on 
the taxonomic history and description of this taxon. It is our intent 
in this document to reiterate and discuss only those topics directly 
relevant to the development and designation of critical habitat or 
relevant information obtained since the final listing.
    The primary threat to Astragalus lentiginosus var. coachellae and 
its habitat is the extensive and growing urban development in the 
Coachella Valley (63 FR 53596), including residential, commercial, and 
agricultural development. Urbanization has both direct and indirect 
adverse effects on A. l. var. coachellae. Urbanization directly 
destroys suitable and occupied habitat onsite, and indirectly degrades 
suitable and occupied habitat by blocking the fluvial (water) and 
eolian (wind) transport of sand from sand source areas to downwind 
areas of suitable habitat. Other threats to Astragalus lentiginosus 
var. coachellae and its habitat include the obstruction of sand 
transport and competition by dense populations of invasive exotic 
plants, such as Saharan mustard (Brassica tournefortii) and 
Mediterranean grass (Schismus barbatus), and direct mortality by off-
highway vehicle (OHV) use (63 FR 53596).

Previous Federal Actions

    The following section summarizes the Federal actions that occurred 
since the rule listing this species as endangered was published in the 
Federal Register on October 6, 1998. Please refer to the final listing 
rule (63 FR 53596) for a discussion of Federal actions that occurred 
prior to the species Federal listing.
    At the time of listing we determined that designation of critical 
habitat was ``not prudent'' (63 FR 53596). On November 15, 2001, the 
Center for Biological Diversity and the California Native Plant Society 
filed a lawsuit against Secretary of the Interior and the Service 
challenging our ``not prudent'' determinations for eight plant species 
listed as endangered or threatened, including Astragalus lentiginosus 
var. coachellae (Center for Biological Diversity, et al. v. Norton, No. 
01 CV 2101, S.D. Cal.). A second lawsuit asserting the same challenge 
was filed on November 21, 2001, by the Building Industry Legal Defense 
Foundation (Building Industry Legal Defense Foundation v. Norton, No. 
01 CV 2145, S.D. Cal.). The parties in both cases agreed to remand the 
critical habitat determinations for the eight plant species at issue to 
the Service for reconsideration. On July 1, 2002, the Court directed us 
to reconsider our not prudent determination and submit to the Federal 
Register for publication a proposed critical habitat designation, if 
prudent, for Astragalus lentiginosus var. coachellae on or before 
November 30, 2004, and to submit to the Federal Register for 
publication of a final critical habitat designation on or before 
November 30, 2005. The proposed rule to designate critical habitat for 
Astragalus lentiginosus var. coachellae was signed on November 30, 
2004, and published in the Federal Register on December 14, 2004 (69 FR 
74468).

Summary of Comments and Recommendations

    During the initial 60-day public comment period for the proposed 
designation of critical habitat (69 FR 74468), we contacted all 
appropriate State, local and Federal agencies, elected officials, 
scientific organizations, and other interested parties, via mail and/or 
fax, and invited them to submit comments and/or information concerning 
the proposed rule. We also published newspaper notices on December 17, 
2004, in the Desert Sun, Palm Springs, CA; Press-Enterprise, Riverside, 
CA; San Diego Union-Tribune, San Diego, CA; Orange County Register, 
Santa Ana, CA; and in the Los Angeles Times, Los Angeles, CA, inviting 
public comment. The initial comment period ended February 14, 2005. We 
did not receive any requests for a public hearing prior to the 
published deadline.
    A second comment period was open from September 27, 2005, to 
October 27, 2005 (70 FR 56434), announcing the availability of the 
September 2005 draft economic analysis (DEA) of critical habitat 
designation for Astragalus lentiginosus var. coachellae as prepared by 
Northwest Economic Associates and reopening the comment period for the 
proposed rule. All comments and new information have been incorporated 
into this final rule as appropriate.
    During the first comment period, we received four comments, 
including a joint letter from two non-profit organizations, a letter 
from a county agency, a water agency, and a local mining business. All 
four comment letters disagreed with the size and area proposed critical 
habitat: three of the letters requested the reduction of critical 
habitat and one letter requested the expansion of critical habitat to 
more areas.
    During the second comment period, we received one comment letter on 
the draft economic analysis from an environmental organization. The 
commenter, who also commented during the first comment period, 
disagreed with excluding areas from critical habitat and requested that 
we include sand source areas in critical habitat. The commenter also 
claimed that the economic analysis grossly overestimated the costs 
associated with

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conserving Astragalus lentiginosus var. coachellae.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited independent opinions from four 
knowledgeable individuals who have expertise with the species, with the 
geographic region where the species occurs, and/or with the principles 
of conservation biology. The purpose of such review is to ensure that 
the designation is based on scientifically sound data, assumptions, and 
analyses, including input of appropriate experts and specialists.
    Of the four individuals contacted, two responded. The two peer 
reviewers that responded generally supported the proposal and provided 
us with additional information, clarifications, and suggestions to 
improve the final critical habitat designation. One reviewer 
recommended expanding the critical habitat designation to include lands 
within the draft Coachella Valley Multiple Species Habitat Conservation 
Plan and Natural Community Conservation Plan (MSHCP/NCCP) that were 
proposed for exclusion. This recommendation was based on the fact that 
the draft Coachella Valley MSHCP/NCCP has yet to be approved and that 
effective conservation efforts for Astragalus lentiginosus var. 
coachellae are, therefore, still unproven. The other peer reviewer did 
not comment on whether critical habitat should be expanded or reduced, 
but recommended the Service provide more explanation for our 
determinations for including or excluding certain areas from designated 
critical habitat. Both peer reviewers discussed the importance of 
including important sand source areas as critical habitat because they 
are important for providing and transporting sediment containing new 
sands to downstream and downwind sandy areas containing PCEs, even 
though these areas do not contain PCEs that support populations of this 
taxon. Both reviewers suggested ways to improve the clarity of both the 
rule and our decision-making process.
    We reviewed all comments, including comments received from the 
public and peer reviewers during the comment periods, for substantive, 
relevant issues and new data regarding critical habitat and Astragalus 
lentiginosus var. coachellae. Peer reviewer comments are summarized and 
addressed separately in the following section. Public comments are 
grouped into three general issue categories relating to critical 
habitat and the draft economic analysis and addressed in the Public 
Comments section below.

Peer Review Comments

    (1) Comment: A peer reviewer requested we clarify how critical 
habitat may provide legal protection to a federally listed plant on 
non-Federal lands. Specifically, they sought more information on 
several matters, including: (1) Whether non-Federal landowners were 
contacted about the proposed critical habitat designation and inquired 
about their perspective of the proposal; (2) whether non-Federal 
landowners are currently under any agreement with State, Federal, or 
local governments for the conservation of this taxon; (3) an assessment 
of how the proposed designation may open the Service to litigation for 
designating critical habitat on non-Federal lands and increase 
vandalism to plants on non-Federal lands.
    Our Response: First, although some habitat containing features 
essential to the conservation of Astragalus lentiginosus var. 
coachellae were determined to occur on non-Federal lands, these lands 
were excluded from critical habitat designation because of their 
inclusion in the preferred alternative reserve design in the draft 
Coachella Valley MSHCP/NCCP (CVMC 2004).
    Second, we did not contact all non-Federal landowners whose 
property contained habitat with features essential to the conservation 
of this taxon. However, we did inform the public about the proposed 
critical habitat designation through several local newspapers and with 
a letter to elected officials and several local, State, Tribal, and 
Federal agencies working in the Coachella Valley. We also are currently 
working with non-Federal landowners whose property contains habitats 
with features essential to the conservation of this taxon on the draft 
Coachella Valley MSHCP/NCCP to conserve habitat for this taxon.
    Third, it is not within the scope of a critical habitat designation 
to determine whether a designation of critical habitat on non-Federal 
lands will make the Service more vulnerable to litigation. As required 
under section 4(b)(1)(A) of the Act, we use the best scientific data 
available to determine areas that contain habitat with features 
essential to the conservation of the species. Ownership of lands being 
proposed as critical habitat is relevant to the Secretary's 
consideration under 4(b)(2) of the Act of relevant factors such as the 
economic impacts to landowners of designating such lands as critical 
habitat. We also share concerns that designating critical habitat may 
lead to an increase in vandalism of Astragalus lentiginosus var. 
coachellae, as stated in our rule to list the species on October 6, 
1998 (63 FR 53596). However, we anticipate that vandalism to this taxon 
may not increase since we are working with non-Federal landowners on 
the draft Coachella Valley MSHCP/NCCP and excluding lands that contain 
habitat with features essential to the conservation of the species from 
critical habitat. Furthermore, the draft Coachella Valley MSHCP/NCCP is 
also proposing to protect reserve areas containing A. l. var. 
coachellae with fencing and other forms of enforcement. These types of 
actions under a comprehensive management plan offer more protections 
for federally listed plants, such as A. l. var. coachellae, on non-
Federal lands than a critical habitat designation.
    (2) Comment: A peer reviewer emphasized the importance of 
protecting various types of habitat, including: (1) Currently 
unoccupied habitat; (2) currently unoccupied habitat that was 
historically occupied; (3) potential habitat downwind and downstream of 
current populations; and (4) source sand areas that provide future 
habitat in downwind and down-drainage areas. Another reviewer stated 
that it was unclear in the proposed rule whether these areas were 
included as critical habitat.
    Our Response: First, the Act defines critical habitat as ``specific 
areas within the geographical area occupied by the species, at the time 
it is listed * * * on which are found those physical and biological 
features (I) essential to the conservation of the species and (II) 
which may require special management considerations or protection.'' We 
have identified all areas within the geographic range of the species 
that are known to be occupied, contain features essential to the 
conservation of Astragalus lentiginosus var. coachellae, and that may 
require special management considerations or protection. It is not our 
current policy to include all areas that could potentially provide 
suitable habitat or are not known to be occupied, even if they were 
historically occupied. Second, we agree with the reviewer that sand 
source areas are important for the conservation of A. l. var. 
coachellae. However, we have determined that the presence of active 
sand dunes (primary constituent element (PCE) 1) is an essential 
feature, and we have designated them as a PCE (see Primary Constituent 
Elements for a detailed discussion). Therefore, Federal actions that 
affect the sand transport system will indirectly affect critical 
habitat. Because there is already a regulatory

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mechanism within this designation, it is not necessary to designate the 
sand source areas themselves. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases.
    (3) Comment: A peer reviewer stated that one of the benefits of 
designating critical habitat is that it helps in identifying extant 
populations of Astragalus lentiginosus var. coachellae when initiating 
Section 7 consultations.
    Our Response: We agree with the reviewer that there is an 
educational benefit of designating critical habitat because it 
identifies areas that contain features essential to the conservation of 
the species that may require special management protection or 
considerations, and this may provide information to Federal agencies 
required to consult with us on their actions.
    (4) Comment: The same peer reviewer stated that another benefit of 
designating critical habitat is identifying unoccupied areas that may 
be important areas for supporting Astragalus lentiginosus var. 
coachellae populations in the future.
    Our Response: We agree with the reviewer that unoccupied areas may 
be important for the recovery of the taxon by supporting future 
Astragalus lentiginosus var. coachellae populations. However, it is not 
the intent of the Act to designate critical habitat throughout a 
taxon's entire range, including areas that potentially could be 
occupied. We have identified areas known to be occupied at the time of 
listing and known to be currently occupied that contain habitat with 
features essential to the conservation of this taxon.
    (5) Comment: A peer reviewer stated that it is beneficial to 
exclude areas from critical habitat if the area is already protected 
through the Federal or local government ownership as well as through 
private reserves.
    Our Response: We agree with the reviewer. A critical habitat 
designation will not afford as much protection for an area containing 
habitat with features essential to the conservation of Astragalus 
lentiginosus var. coachellae as would be afforded under Federal, State, 
Tribal, or local ownership provided the property is managed for the 
conservation of this taxon. Also, under the definition of critical 
habitat, we can only include lands in critical habitat if the essential 
features may require special management considerations or protection. 
Thus, we have excluded all areas containing features essential to the 
conservation of this taxon due to their inclusion within conservation 
areas that are or will be conserved and managed by Federal and local 
governments (see section titled Application of Section 3(5)(A) and 
Exclusions Under Section 4(b)(2) of the Act for a more detailed 
discussion).
    (6) Comment: A peer reviewer stated that designating only small 
tracts of land as critical habitat may not be beneficial because of the 
movement of suitable habitat through time due to wind and flooding, 
thus resulting in these areas becoming unsuitable.
    Our Response: First, as discussed above in Comment 5, we 
have excluded in this final rule all areas that were proposed as 
critical habitat. Second, the reason only small tracts of lands were 
originally proposed as critical habitat was because larger adjacent 
areas with habitat containing features essential to conservation of 
this taxon were either excluded from the designation because they are 
proposed for protection under the draft Coachella Valley MSHCP/NCCP. We 
believe that these conservation practices will garner more conservation 
benefits than a critical habitat designation (see section titled 
Application of Section 3(5)(A) and Exclusions Under Section 4(b)(2) of 
the Act for a more detailed discussion).
    (7) Comment: A peer reviewer stated that there is value in the 
process for determining critical habitat because it has allowed for an 
assessment of areas with habitat that contain features essential to the 
conservation of the taxon, even though not all these areas are being 
proposed because they are being addressed in other management plans.
    Our Response: We agree with the reviewer and have discussed this 
later in the rule (see Relationship of Critical Habitat to the Pending 
Coachella Valley Multiple Species Habitat Conservation Plan and Natural 
Community Conservation Plan and Natural Community Conservation Plan 
(MSHCP/NCCP) for a detailed discussion).
    (8) Comment: A peer reviewer stated that there are many occurrences 
of Astragalus lentiginosus var. coachellae on sites that are ``cut 
off'' from sand sources by intervening land uses. The peer reviewer 
suggests that the rule would be more clear if it described how long 
these sites might be expected to support viable populations and whether 
these occurrences can be meaningful to long-term conservation for the 
plant, and whether management efforts could help protect these 
populations.
    Our Response: We agree with the reviewer that there are occurrences 
of Astragalus lentiginosus var. coachellae that are now isolated from 
the sand transport system and ``cut off'' from the sand sources that 
maintain suitable habitat for this plant. The long-term viability of 
these occurrences is reduced because there is little to no potential 
that the natural ecological processes that maintain the habitat for A. 
l. var. coachellae will return. The length of time that these isolated 
occurrences will remain into the future depends upon a variety of site-
specific factors such as the degree of isolation from the sand 
transport system, size and scale of the development that is blocking 
the downstream movement of sediment, and the rate of sand loss around 
the plant population. Management efforts may substitute for the natural 
ecological processes by mechanically transferring sand to areas ``cut 
off'' from sand sources. These management practices are discussed below 
(see section titled Special Management Considerations or Protection).
    (9) Comment: A peer reviewer questioned why there were no Agua 
Caliente Reservation lands included within critical habitat if there 
are significant populations on these lands.
    Our Response: We recognize that important populations exist on Agua 
Caliente Reservation lands in the Big Dune area. However, we determined 
that these areas did not contain features essential to the conservation 
of this taxon because the ecological processes that maintain suitable 
habitat in this area from the Whitewater River sand transport system 
have been compromised by development in Cathedral City. New eolian 
sands are prevented by development from replenishing the Big Dune area. 
We have determined that without these ecological processes the long-
term prospect of Astragalus lentiginosus var. coachellae populations in 
this area is reduced.
    (10) Comment: A peer reviewer stated that we should include a 
discussion on the best and worst case scenarios for Astragalus 
lentiginosus var. coachellae protections once the draft Coachella 
Valley MSHCP/NCCP is finalized.
    Our Response: The impacts and conservation measures provided for 
Astragalus lentiginosus var. coachellae under the draft Coachella 
Valley MSHCP/NCCP will be analyzed as part of a section 7 consultation 
for the issuance of a section 10(a)(1)(B) permit to the Coachella 
Valley Association of Governments (CVAG) and local jurisdictions. The 
Service has not completed the section 7 consultation for this section 
10 permit at this time. However, we are confident that CVAG will reach 
a successful conclusion to its MSHCP/NCCP development process

[[Page 74116]]

and successfully conserve habitat for Astragalus lentiginosus var. 
coachellae to meet the requirements outlined in section 10(a)(1)(B) of 
the Act. The draft MSHCP/NCCP proposes to conserve 19,321 ac (7,819 ha) 
of modeled A. l. var. coachellae habitat in their Conservation Areas 
that includes large core habitat areas and other important conservation 
areas, such as sand sources and sand transport corridors. Other goals 
include: (1) Protecting other important conservation areas to allow for 
population fluctuation and promote genetic diversity; (2) protecting 
necessary ecological processes, including the sand transport systems, 
that will be beneficial in maintaining the PCEs in the areas containing 
features essential for the conservation of A. l. var. coachellae; (3) 
maintaining biological corridors and linkages among all conserved 
populations to the maximum extent feasible; and (4) ensuring 
conservation of habitat quality through biological monitoring and 
adaptive management actions. Therefore, we have excluded under section 
4(b)(2) of the Act all lands containing features essential for the 
conservation of A. l. var. coachellae within the Coachella Valley 
MSHCP/NCCP plan area (see section titled Pending Coachella Valley 
Multiple Species Habitat Conservation Plan and Natural Community 
Conservation Plan MSHCP/NCCP for a more detailed discussion).
    (11) Comment: A peer reviewer stated that we should include a 
discussion on what options the Service has for conservation of 
Astragalus lentiginosus var. coachellae if the draft Coachella Valley 
MSHCP/NCCP is never finalized.
    Our Response: In the absence of an approved Coachella Valley MSHCP/
NCCP, Astragalus lentiginosus var. coachellae would continue to receive 
means for protection and be provided a program for its conservation 
under the Act. Under section 4 of the Act, the Service would develop 
and implement a recovery plan for A. l. var. coachellae, although there 
are currently no plans by the Service to fund or finish preparing a 
recovery plan. However, implementation of a recovery plan by 
landowners, Federal agencies, and other parties is voluntary. Section 
7(a)(1) of the Act calls for Federal agencies (including the Department 
of the Interior), in consultation with and assistance from the 
Secretary of the Interior, to utilize their authorities in furtherance 
of the purposes of the Act. Section 7(a)(2) of the Act requires Federal 
agencies to ensure that any Federal action would not likely jeopardize 
the continued existence of the species or result in the destruction or 
adverse modification of critical habitat. Section 9 of the Act includes 
prohibitions on the removal and reduction to possession; maliciously 
damaging or destroying, or removing, cutting, digging up, or damaging 
or destroying in knowing violation of any state law; or in violation of 
a state criminal trespass law of A. l. var. coachellae on Federal 
lands.
    The Bureau of Land Management (BLM) continues to manage Astragalus 
lentiginosus var. coachellae under the California Desert Conservation 
Act and other authorities, including section 7 of the Act. We have made 
significant progress in completing the Coachella Valley MSHCP/NCCP and 
we believe that the plan would provide a greater level of conservation 
to A. l. var. coachellae than would sections 4, 7, and 9 of the Act by 
themselves. The plan provides for the conservation of core habitat 
areas and other conserved habitats that would benefit the species, 
protects necessary ecological processes and biological corridors and 
linkages, implements monitoring and management programs, and restricts 
activities that result in adverse impacts to this plant.
    (12) Comment: A peer reviewer stated that we should include a 
discussion on the Service's authority (if any) to monitor compliance of 
the Coachella Valley MSHCP/NCCP and ensure that conservation measures 
for Astragalus lentiginosus var. coachellae are implemented as proposed 
in the draft plan.
    Our Response: Section 10(a)(2)(B) of the Act specifies that an 
incidental take permit ``shall contain such terms and conditions as the 
Secretary deems necessary or appropriate to carry out the purposes of 
this paragraph, including, but not limited to, such reporting 
requirements as the Secretary deems necessary for determining whether 
such terms and conditions are being complied with.'' The draft 
Coachella Valley MSHCP/NNCP includes monitoring and reporting 
requirements that will be incorporated into any permit issued under the 
plan.
    (13) Comment: The same peer reviewer also stated that the Service 
should describe any proposed monitoring or adaptive management in the 
draft plan that might ensure adequate remedial work that will be done 
if needed.
    Our Response: The draft Coachella Valley MSHCP/NCCP follows an 
adaptive management approach that involves development of objectives, 
conceptual models of system dynamics, a monitoring program, and changes 
to management based on monitoring results. The facets are interrelated 
and their integration will test assumptions systematically in order to 
adapt and learn.
    (14) Comment: A peer reviewer stated that the Service's analysis of 
the benefits of excluding lands covered under the draft Coachella 
Valley MSHCP/NCCP did not present a cogent argument for why the 
benefits of excluding critical habitat within the draft Coachella 
Valley MSHCP/NCCP outweigh the benefits of inclusion.
    Our Response: We believe that our argument for excluding non-
Federal lands within the draft Coachella Valley MSHCP/NCCP emphasizes 
the point that benefits of a comprehensive management plan that covers 
a federally listed plant on non-Federal lands will garner more 
conservation benefits than designating critical habitat (see section 
titled Relationship of Critical Habitat to the Pending Coachella Valley 
Multiple Species Habitat Conservation Plan and Natural Community 
Conservation Plan and Natural Community Conservation Plan (MSHCP/NCCP) 
for a more detailed discussion).

Comments From the State

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for her failure to adopt 
regulation consistent with the agency's comments or petition.'' No 
comments were received from the State regarding the proposal to 
designate critical habitat for the Astragalus lentiginosus var. 
coachellae.

Comments Related to the Process of Designating Critical Habitat

    (15) Comment: One commenter stated that the Service failed to cite 
any scientific evidence supporting our decision to exclude certain 
areas with habitat containing features essential to the conservation of 
the taxon from the critical habitat designation.
    Our Response: Section 4(b)(2) of the Act allows us to consider the 
economic, national security, and any other relevant impact of 
specifying any particular area as critical habitat. An area may be 
excluded from critical habitat if it is determined that the benefits of 
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. As outlined in 
the proposed rule, we determined the benefits of exclusion outweigh the 
benefits of including lands covered by the draft Coachella Valley 
MSHCP/NCCP. We have also clarified our determination that exclusion of

[[Page 74117]]

these areas will not result in extinction of the species (see section 
titled Relationship of Critical Habitat to the Pending Coachella Valley 
Multiple Species Habitat Conservation Plan and Natural Community 
Conservation Plan and Natural Community Conservation Plan (MSHCP/NCCP) 
for a more detailed discussion).
    (16) Comment: A commenter contended that Habitat Conservation Plans 
(HCPs: In this case the draft Coachella Valley MSHCP/NCCP) have very 
different goals for species conservation than critical habitat 
designations. HCPs allow for take of covered species, reducing species 
numbers that are already in crisis of extinction even further and 
further reducing listed species opportunity for recovery. Whereas, a 
critical habitat designation and protection are meant to promote 
recovery of the species (section 3(3) and 3(5) of the Act; F.3d 434 and 
the August 6, 2004, Ninth Circuit judicial opinion, Gifford Pinchot 
Task Force v. United State Fish and Wildlife Service). Furthermore, 
under the Act, ``essential habitat'' and ``unoccupied areas'' that are 
critical to the species survival and recovery have no legal definition 
and therefore no legal standing under the law. As a result, the 
commenter contended that by not designating critical habitat as 
required, the Service is an abdication of responsibility to follow the 
law.
    Our Response: The Service has operated under the Secretary's 
discretion to exclude areas from critical habitat if the benefits of 
such exclusion outweigh the benefits of its inclusion. Section 4(b)(2) 
of The Act states ``the Secretary shall designate critical habitat, and 
make revisions thereto, under subsection (a)(3) on the basis of the 
best scientific data available and after taking into consideration the 
economic impact, and any other relevant impact, of specifying any 
particular area as critical habitat. The Secretary may exclude any area 
from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species concerned.''
    The Service's exclusion of areas containing features essential to 
the conservation of Astragalus lentiginosus var. coachellae from 
critical habitat is based on the inclusion of these areas within 
conservation areas of a nearly approved HCP. The benefits to A. l. var. 
coachellae that are garnered from a HCP outweigh the benefits of 
including these areas as designated critical habitat and applying 
another regulatory hardship on HCP participants for lands that are 
already or will conservation benefits for A. l. var. coachellae.
    (17) Comment: A commenter stated that there is a benefit of having 
designated critical habitat in excluded areas should the draft 
Coachella Valley MSHCP/NCCP and Coachella Valley Fringe-Toed Lizard HCP 
falter in their conservation mandate.
    Our Response: If these HCPs were to fail in their conservation 
mandate, it would be possible for the Service to re-propose these areas 
for critical habitat designation. However, the Service has determined 
that the benefits of designating critical habitat in these areas do not 
outweigh the benefits of excluding these areas from designation while 
these lands are covered under either the Coachella Valley MSHCP or the 
Coachella Valley Fringe-Toed Lizard HCP, and therefore have excluded 
these areas from designation.
    (18) Comment: One commenter expressed their concern that any 
designation of critical habitat within the draft Coachella Valley 
MSHCP/NCCP Plan Area may jeopardize the participation by various cities 
in the Plan.
    Our Response: It is our determination that maintaining partnerships 
in the planning process for the Coachella Valley MSHCP/NCCP will 
provide a greater conservation benefit to Astragalus lentiginosus var. 
coachellae than designating critical habitat on lands under these 
partners' auspices and potentially losing their participation in the 
Plan.
    (19) Comment: A commenter stated that the proposed critical habitat 
included only one of twenty-six Astragalus lentiginosus var. coachellae 
locations recorded in the California Natural Diversity Database 
(CNDDB). They also stated that it is unclear if the remaining locations 
are within lands excluded from the designation, and commented that all 
lands with habitat essential to the conservation of the taxon should be 
included as critical habitat. They also stated excluding critical 
habitat would hurt the recovery potential of the taxon.
    Our Response: Ten of twenty-eight CNDDB records (there are 28 
records rather than 26 as stated in the comment) were captured within 
areas that we have determined contain features essential to the 
conservation of this taxon. In determining these areas, it is important 
not only to look at quantity of locations that were captured, but also 
the quality of the locations that were captured. Several of the CNDDB 
records are in habitats that are severely degraded due to significant 
disturbance from nearby development. Additionally, in determining areas 
containing essential features, we compiled a larger dataset of 
Astragalus lentiginosus var. coachellae locations than just the CNDDB 
records. It is evident from our data that we have captured a majority 
of the high quality locations within areas possessing features 
essential to the conservation of this taxon. High-quality locations 
include those sites with PCEs and are within areas still functioning as 
part of one of the three major sand transport systems in the Coachella 
Valley. We believe we captured locations that have the best prognosis 
for long-term survival and are the areas essential to the conservation 
of the taxon. Our proposed rule for critical habitat designation of A. 
l. var. coachellae clearly mapped areas that were being proposed as 
critical habitat as well as areas that were proposed for exclusion. We 
do not believe that it should have been confusing to determine as to 
whether the CNDDB records were located either within proposed areas, 
excluded areas, or areas not containing features essential to the 
conservation of A. l. var. coachellae.
    We also do not believe that all areas containing features essential 
to the conservation of Astragalus lentiginosus var. coachellae should 
be designated critical habitat if they are within areas that are 
already receiving or will very likely receive management benefits to 
this taxon (see section titled Application of Section 3(5)(A) and 
Exclusions Under Section 4(b)(2) of the Act for a more detailed 
discussion). On the same note, we do not believe that excluding 
critical habitat based on existing or pending habitat conservation 
plans would set back the recovery potential of A. l. var. coachellae 
since these plans provide more conservation benefits than would be 
provided by designating these areas as critical habitat. As a result, 
we believe that the long-term partnerships that are formed by agreeing 
to habitat conservation plans or other conservation plans that provide 
conservation benefits to A. l. var. coachellae work more effectively 
toward promoting the recovery of this taxon than would a critical 
habitat designation.
    (20) Comment: One commenter stated that the critical habitat 
designation suffers from a lack of habitat connectivity.
    Our Response: We recognize that habitat connectivity is an 
important aspect of a critical habitat designation because this allows 
for gene flow

[[Page 74118]]

between populations and recolonization of areas with endangered or 
extirpated populations. We used the best available scientific data to 
develop the criteria used to delineate critical habitat boundaries 
associated with both recent occurrences and occurrences known at the 
time of listing (see Criteria Used To Identify Critical Habitat). We 
recognize that designation of critical habitat may not include all of 
the habitat areas that may eventually be determined to be necessary for 
the recovery of the species. For these reasons, critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or may not be required for recovery.

Comments Related to Site-Specific Areas and Unoccupied Areas Identified 
for Possible Inclusion

    (21) Comment: One commenter requested that unoccupied areas 
identified in the proposed rule as being important to maintain fluvial 
and eolian processes be included as part of the final critical habitat 
designation.
    Our Response: See response to Comment 2 above.
    (22) Comment: A commenter stated that not all Coachella Valley 
Water District (CVWD) lands were excluded from the critical habitat 
designation, possibly due to the Service's use of outdated parcel data. 
Similarly, another commenter stated that we should remove all Granite 
Construction Company property from critical habitat designation and 
suggested that its inclusion may be due to errors in parcel data.
    Our Response: We excluded all CVWD lands from critical habitat 
because of their participation and anticipated signatory status in the 
draft Coachella Valley MSHCP/NCCP planning process (see Discussion in 
Relation of Critical Habitat to the Pending Coachella Valley Multiple 
Species Habitat Conservation Plan/Natural Communities Conservation Plan 
(MSHCP/NCCP)). The inclusion of CVWD property within the critical 
habitat designation was an artifact of our mapping process during the 
proposed rule for describing legal boundaries for areas with habitat 
containing features essential for the conservation of this taxon. The 
mapping process for the proposed rule overlaid a 100m by 100m grid on 
areas containing essential features to create an outer boundary that 
was used to describe the legal Universal Transverse Mercator (UTM) 
coordinates. In some areas, this process captured excluded Water 
District lands containing essential features for the conservation of 
this taxon. We changed our mapping procedure for the final designation 
and abandoned use of the grid system. Instead, the legal UTM 
coordinates for the boundary of the critical habitat followed precisely 
with the boundary of the areas containing essential features. As a 
result, all CVWD lands containing features essential for the 
conservation of this taxon were excluded from critical habitat 
designation pursuant to section 4(b)(2) of the Act.
    Granite Construction Company lands were also included within the 
legal maps for the same reasons. After the change in our mapping 
process for the final designation, Granite Construction Company lands 
are no longer in critical habitat because they do not contain habitat 
with features essential to the conservation of this taxon.
    (23) Comment: Two commenters requested that BLM lands north of the 
percolation ponds be removed from critical habitat because it is not 
suitable habitat. One of these commenters also requested that all 
remaining BLM lands within the draft Coachella Valley MSHCP/NCCP Plan 
be excluded from critical habitat because the BLM's California Desert 
Conservation Area Plan Amendment (CDCAPA) for the Coachella Valley 
already requires BLM to manage their lands consistent with the 
Coachella Valley MSHCP/NCCP.
    Our Response: We agree with the commenter and all BLM lands that 
were proposed as critical habitat are excluded from designation in this 
final rule based on BLM's commitment under their CDCAPA to manage their 
lands consistent with the draft Coachella Valley MSHCP once it is 
completed (see section titled Relationship of Critical Habitat to the 
Pending Coachella Valley Multiple Species Habitat Conservation Plan and 
Natural Community Conservation Plan and Natural Community Conservation 
Plan (MSHCP/NCCP) for a more detailed discussion).
    (24) Comment: One commenter stated that the Astragalus lentiginosus 
var. coachellae population located north of Desert Center also be 
included as critical habitat since it represents an important 
peripheral population. The commenter also discusses other peripheral 
populations that were not included.
    Our Response: Although the Astragalus lentiginosus var. coachellae 
population in Desert Center appears unusual because it is so disjunct 
from the main center of the taxon's range, we do not have any 
information indicating that this population has special demographic, 
ecological, or genetic significance. It is not the intent of the Act to 
include every population throughout a species' range within critical 
habitat. The commenters did not provide information indicating the 
significance of the Desert Center population or what other peripheral 
populations should have been included within critical habitat.
    (25) Comment: A commenter requested clarification on the area of 
proposed critical habitat in Unit 1 outside the bounds of the 
Whitewater Floodplain Conservation Area (southeast of the Conservation 
Area).
    Our Response: This area has been determined to not contain features 
essential to the conservation of Astragalus lentiginosus var. 
coachellae and has been removed from critical habitat.

Comments Related to the Draft Economic Analysis

    (26) Comment: A commenter stated that the draft economic analysis 
(DEA) should have included an analysis of benefits, such as maintaining 
natural flood control processes along waterways, amenity values, open 
space, flood/drought mitigation, and detoxification and decomposition 
of wastes.
    Our Response: In the context of a critical habitat designation, the 
primary purpose of the rulemaking (i.e., the direct benefit) is to 
designate areas in need of special management that contain the features 
that are essential to the conservation of listed species.
    The designation of critical habitat may result in two distinct 
categories of benefits to society: (1) Use; and (2) non-use benefits. 
Use benefits are simply the social benefits that accrue from the 
physical use of a resource. Visiting critical habitat to see endangered 
species in their natural habitat would be a primary example. Non-use 
benefits, in contrast, represent welfare gains from ``just knowing'' 
that a particular listed species' natural habitat is being specially 
managed for the survival and recovery of that species. Both use and 
non-use benefits may occur unaccompanied by any market transactions.
    A primary reason for conducting this analysis is to provide 
information regarding the economic impacts associated with a proposed 
critical habitat designation. 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. Economic impacts can be both positive and negative 
and by definition,

[[Page 74119]]

are observable through market transactions.
    Where data are available, this analysis attempts to recognize and 
measure the net economic impact of the proposed designation. For 
example, if the fencing of a species' habitat to restrict motor 
vehicles results in an increase in the number of individuals visiting 
the site for wildlife viewing, then the analysis would recognize the 
potential for a positive economic impact and attempt to quantify the 
effect (e.g., impacts that would be associated with an increase in 
tourism spending by wildlife viewers). In this particular instance, 
however, the economic analysis did not identify any credible estimates 
or measures of positive economic impacts that could offset some of the 
negative economic impacts analyzed earlier in this analysis.
    Under Executive Order 12866, OMB directs Federal agencies to 
provide an assessment of both the social costs and benefits of proposed 
regulatory actions. OMB's Circular A-4 distinguishes two types of 
economic benefits: direct benefits and ancillary benefits. Ancillary 
benefits are defined as favorable impacts of a rulemaking that are 
typically unrelated, or secondary, to the statutory purpose of the 
rulemaking. In the context of critical habitat, the primary purpose of 
the rulemaking (i.e., the direct benefit) is the potential to enhance 
conservation of the species. The published economics literature has 
documented that social welfare benefits can result from the 
conservation and recovery of endangered and threatened species. In its 
guidance for implementing Executive Order 12866, OMB acknowledges that 
it may not be feasible to monetize, or even quantify, the benefits of 
environmental regulations due to either an absence of defensible, 
relevant studies or a lack of resources on the implementing agency's 
part to conduct new research. Rather than rely on economic measures, 
the Service believes that the direct benefits of the proposed rule are 
best expressed in biological terms that can be weighed against the 
expected cost impacts of the rulemaking.
    We have accordingly considered, in evaluating the benefits of 
excluding versus including specific area, the biological benefits that 
may occur to a species from designation (see below, Exclusions Under 
section 4(b)(2) of the Act), but these biological benefits are not 
addressed in the economic analysis.
    (27) Comment: The same commenter objected to the attribution of 
conservation costs that benefit multiple sympatric species solely to 
Astragalus lentiginosus var. coachellae in the DEA.
    Our Response: The DEA discusses other relevant regulations and 
protection efforts for other listed species that include Astragalus 
lentiginosus var. coachellae and its habitat. In general, the analysis 
errs conservatively in order to make certain the economic effects have 
not been missed. It treats as ``coextensive'' other Federal and State 
requirements that may result in overlapping protection measures (e.g., 
California Environmental Quality Act) for the plant. The economic 
analysis distributes the cost of conserving A. l. var. coachellae 
habitat equally among the number of other listed species likely to co-
exist with A. l. var. coachellae as indicated by the historical 
consultations. None of the past A. l. var. coachellae consultations 
focused solely on A. l. var. coachellae but rather on other listed and 
sensitive species co-occurring in the area. Within a biological opinion 
or HCP that covers several species, we are unable to accurately 
segregate out the cost for an individual species from the rest of the 
species covered in the biological opinion or HCP.
    (28) Comment: The same commenter stated that the DEA does not make 
a distinction between the costs of listing the species under the Act 
versus designating critical habitat.
    Our Response: The economic analysis is intended to assist the 
Secretary in determining whether the benefits of excluding particular 
areas from the designation outweigh the biological benefits of 
including those areas in the designation. Also, this information allows 
us to comply with direction from the U.S. 10th Circuit Court of Appeals 
that ``co-extensive'' effects should be included in the economic 
analysis to inform decision-makers regarding which areas to designate 
as critical habitat (New Mexico Cattle Growers Association v. U.S. Fish 
and Wildlife Service (248 F.3d 1277)).
    This analysis identifies those potential activities believed to be 
most likely to threaten Astragalus lentiginosus var. coachellae and its 
habitat and, where possible, quantifies the economic impact to avoid, 
mitigate, or compensate for such threats within the boundaries of the 
critical habitat designation. Where critical habitat is being proposed 
after a species is listed, some future impacts may be unavoidable, 
regardless of the final designation and exclusions under section 
4(b)(2). However, due to the difficulty in making a credible 
distinction between listing and critical habitat effects within 
critical habitat boundaries, this analysis considers all future 
conservation-related impacts to be co-extensive with the designation.
    (29) Comment: A commenter contended that pre-designation impacts 
are attributed to the listing of the species and not critical habitat, 
and therefore should not be included in the DEA.
    Our Response: The primary purpose of the economic analysis is to 
estimate the potential economic impacts associated with the designation 
of critical habitat for Astragalus lentiginosus var. coachellae. The 
Act defines critical habitat to mean those specific areas that are 
essential to the conservation of the species. The Act also defines 
conservation to mean the use of all methods and procedures necessary to 
bring any endangered species or threatened species to the point at 
which the measures of the Act are no longer necessary. Thus we 
interpret the Act to mean that the economic analysis should include all 
of the economic impacts associated with the conservation of the 
species, which may include some of the effects associated with listing 
because the species was listed prior to the proposed designation of 
critical habitat. We note that the Act generally requires critical 
habitat to be designated at the time of listing, and, that had we 
conducted an economic analysis at that time, the impacts associated 
with listing would not be readily distinguishable from those associated 
with critical habitat designation.
    (30) Comment: A commenter questioned the framework for quantifying 
conservation-related costs in the DEA of critical habitat for 
Astragalus lentiginosus var. coachellae for flood control projects, 
local transportation projects, California Department of Transportation 
(Caltrans) mitigation, and all other projects within the boundaries of 
the draft Coachella Valley MSHCP/NCCP as these projects and the costs 
associated with them are covered under the draft Coachella Valley 
MSHCP/NCCP.
    Our Response: As described in Section 8.6.2 of the DEA, the post-
designation Coachella Valley MSHCP/NCCP costs captured by the DEA 
include management, monitoring, and administration of the Coachella 
Valley MSHCP/NCCP reserve system. These costs are calculated and 
allocated based on the rate of projected development within the units. 
Other non-development related activities also contribute funds toward 
the management, monitoring and management of the Coachella Valley 
MSHCP/NCCP. As described in Section 6.1.2.2 of the DEA, CVAG, the joint

[[Page 74120]]

powers authority functioning as lead agency for the preparation of the 
draft Coachella Valley MSHCP/NCCP, is expected to contribute 
approximately $1 million toward management, monitoring, and 
administration of the Coachella Valley MSHCP/NCCP for transportation 
projects. The costs related to these transportation projects are not 
captured in the estimated Coachella Valley MSHCP/NCCP costs. 
Furthermore, as described in Sections 6.1.2.3 and 8.1.1.2 of the DEA, 
the costs captured in the DEA for Caltrans mitigation and flood control 
are related to land acquisitions, and land acquisition costs were not 
captured in the estimated Coachella Valley MSHCP/NCCP costs. The 
Coachella Valley MSHCP/NCCP costs estimated in the DEA include 
management, monitoring, and administration of the Coachella Valley 
MSHCP/NCCP reserve system.
    (31) Comment: The same commenter questioned the use of cost 
information from the draft Coachella Valley MSHCP/NCCP in the DEA since 
the Coachella Valley MSHCP/NCCP is not yet finalized and will not be 
prior to final designation of critical habitat for Astragalus 
lentiginosus var. coachellae.
    Our Response: As described in Section 1.3 of the DEA, estimates of 
post-designation effects are based on activities that are ``reasonably 
foreseeable,'' including, but not limited to, activities that are 
currently authorized, permitted, or funded, or for which proposed plans 
are currently available to the public. The draft Coachella Valley 
MSHCP/NCCP falls under this latter category. While in draft form, 
planning and development of the Coachella Valley MSHCP/NCCP began 12 
years ago in 1994, and it is anticipated that the Coachella Valley 
MSHCP/NCCP will become permitted by year-end 2005. Furthermore, as 
described in response to Issue 1, considering the Coachella Valley 
MSHCP/NCCP costs captured by the DEA are separate from the estimated 
non-development-related costs, there are no double counting issues.
    (32) Comment: A commenter questioned the consistency in the 
allocation of habitat conservation plan-related costs to Astragalus 
lentiginosus var. coachellae in the DEA. In particular, the commenter 
questioned why conservation costs to develop the Agua Caliente Band of 
Cahuilla Indians HCP were not allocated to costs of critical habitat 
for Astragalus lentiginosus var. coachellae.
    Our Response: As described in Section 3.4 of the DEA, a draft HCP 
proposing coverage for 24 species, including Astragalus lentiginosus 
var. coachellae, has been developed for the Agua Caliente Indian 
Reservation. In the proposed rule, we did not identify habitat on Agua 
Caliente Tribal lands as containing features essential for the 
conservation of the Astragalus lentiginosus var. coachellae, thus, no 
pre or post-designation costs are estimated on Tribal lands as 
associated with the critical habitat designation.
    (33) Comment: A commenter questioned the relevancy of some of the 
development-related Astragalus lentiginosus var. coachellae 
conservation costs described in Table 13. Specifically, the commenter 
questioned the inclusion of costs that do not directly or indirectly 
benefit A. l. var. coachellae.
    Our Response: As described in Section 5.1 of the DEA, the section 7 
consultation history involving Astragalus lentiginosus var. coachellae 
and development projects was reviewed. The consultation history for A. 
l. var. coachellae provides the types of conservation activities 
incurred by developers for conserving A. l. var. coachellae and its 
habitat. The costs associated with these consultations are not included 
in the DEA as these projects occurred in areas not identified in the 
proposed CHD. However, the information on the conservation activities 
is provided for background information on conservation efforts for the 
species and its habitat. Furthermore, while the commenters do not cite 
specific examples of costs included in the analysis that do not 
directly or indirectly benefit A. l. var. coachellae, this analysis 
does not include conservation costs for activities that do not benefit 
A. l. var. coachellae.
    (34) Comment: A commenter questioned the DEA's derivation of the 
``not allocated'' pre-designation costs of conserving Astragalus 
lentiginosus var. coachellae incurred by development in essentia