Endangered and Threatened Wildlife and Plants; Final Revised Designation of Critical Habitat for Astragalus Jaegerianus, 29108-29129 [2011-12330]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R8–ES–2009–0078; MO
99210–0–0009]
RIN 1018–AW53
Endangered and Threatened Wildlife
and Plants; Final Revised Designation
of Critical Habitat for Astragalus
Jaegerianus (Lane Mountain MilkVetch)
Fish and Wildlife Service,
Interior.
ACTION: Final rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), are
designating revised critical habitat for
Astragalus jaegerianus (Lane Mountain
milk-vetch) under the Endangered
Species Act of 1973, as amended (Act).
In total, approximately 14,069 acres (ac)
(5,693 hectares (ha)) of land in 2 units
located in the Mojave Desert in San
Bernardino County, California, fall
within the boundaries of the revised
critical habitat designation.
DATES: This rule becomes effective on
June 20, 2011.
ADDRESSES: The final rule and the
associated final economic analysis, and
map of critical habitat are available on
the Internet at https://
www.regulations.gov at Docket No.
FWS–R8–ES–2009–0078, and https://
www.fws.gov/ventura/. Comments and
materials received, as well as supporting
documentation used in the preparation
of this final rule, are available for public
inspection, by appointment, during
normal business hours, at the U.S. Fish
and Wildlife Service, Ventura Fish and
Wildlife Office, 2493 Portola Road,
Suite B, Ventura, CA 93003; telephone
805–644–1766; facsimile 805–644–3958.
FOR FURTHER INFORMATION CONTACT:
Diane Noda, Field Supervisor, U.S. Fish
and Wildlife Service, Ventura Fish and
Wildlife Office (see ADDRESSES). If you
use a telecommunications device for the
deaf (TDD), call the Federal Information
Relay Service (FIRS) at 800–877–8339.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
Background
It is our intent to discuss only those
topics directly relevant to the
development and designation of revised
critical habitat for Astragalus
jaegerianus under the Act (16 U.S.C.
1531 et seq.). For more information on
the biology and ecology of A.
jaegerianus, refer to the final listing rule
published in the Federal Register on
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October 6, 1998 (63 FR 53596), the
previous proposed critical habitat that
published in the Federal Register on
April 6, 2004 (69 FR 18018), and the
proposed revised designation of critical
habitat that published in the Federal
Register on April 1, 2010 (75 FR 16404).
Information on the associated draft
economic analysis (DEA) for the
proposed rule to designate revised
critical habitat was published in the
Federal Register on November 3, 2010
(75 FR 67676).
Species Description, Life History,
Distribution, Ecology, and Habitat
We received no new information
pertaining to the description, life
history, or distribution of Astragalus
jaegerianus following the proposed
revised designation (April 1, 2010; 75
FR 16404). These subjects are
summarized in the final listing rule that
published in the Federal Register on
October 6, 1998 (63 FR 53596), and the
proposed revised designation of critical
habitat that published in the Federal
Register on April 1, 2010 (75 FR 16404).
However, we did receive and analyze
new information related to population
dynamics, ecology, and habitat of A.
jaegerianus primarily from two longterm monitoring reports (U.S. Army:
Fort Irwin 2009, 2010) and from
research recently conducted on the
effects of long-term drought on A.
jaegerianus and its host shrubs (Huggins
et al. 2010). In addition, we are
clarifying information on recent genetic
studies that was briefly mentioned in
the proposed revised critical habitat
designation. This new information is
described below.
New Information
Population Dynamics
Two reports have become available
since the proposed revised critical
habitat designation was prepared. As
part of their Integrated Natural
Resources Management Plan (INRMP)
responsibilities, the Army established
40 study plots in 2005 to study the
demographics of Astragalus jaegerianus
and submits annual monitoring reports
to the Service. Ten study plots were
established in each of the four
populations of Astragalus jaegerianus.
This species is an herbaceous perennial
that typically dies back at the end of
each growing season, and persists
through the dry season as a taproot; this
taproot may also allow A. jaegerianus to
survive occasional dry years, while
longer periods of drought might be
endured by remaining dormant. ‘‘Aboveground’’ refers to those individuals that
can be observed each year on the basis
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of their herbaceous growth. Information
summarized from the 2010 annual
monitoring report indicates that, while
the total number of A. jaegerianus
individuals observed above-ground
within the plots has decreased
compared to 2005 levels, the number of
individuals has increased annually
since 2007 (Hessing 2010, p. 4). Study
plot surveys in 2005 documented 224
individuals; in 2007, the total number of
individuals observed in the study plots
was 4 plants; in 2010, the total number
of individuals was 152. Of these 152
plants, 120 were individuals that were
observed the previous year, 26 were
new recruits, and 6 were resprouts.
Another ongoing population
demography study conducted at
permanent survey plots at the Montana
Mine and Goldstone sites showed that
Astragalus jaegerianus populations have
declined in number of individuals, and
in 2009 are less than 13 percent of their
population size in 1999 (Sharifi et al.
2010, p. 4). The rate of mortality has
generally slowed in the last 2 years,
although at one subplot, the rate has
increased recently compared with
earlier years. Little to no observed
recruitment is thought to be the result
of low seedling survival and a depleted
seed bank (Sharifi et al. 2010, pp. 11–
12). Recruitment is probably episodic
and requires two or more uncommon
conditions such as: A large seed bank,
precipitation greater than 8 inches (in)
(200 millimeter (mm)) per year and
frequently spaced (rain events
approximately four times a month), and
a subsequent wet year or summer
precipitation (Sharifi et al. 2009, p. 10).
Ecology and Habitat
Huggins et al. (2010) reported on
changes in host shrub canopy over a
time period from 1999 to 2009 in the
same areas where populations have
been monitored by Sharifi et al. (2010)
(see above). A drought began in the
Mojave Desert (and much of the western
States) in 1999, according to various
researchers (Cook et al. 2004, p. 1016;
Breshears et al. 2005, p. 15144; Hereford
et al. 2006, p. 19). Such droughts have
been documented to result in
population diebacks and drought
pruning of perennial desert shrubs (for
example, see Hamerlynck and
McAuliffe 2008). Host shrubs for
Astragalus jaegerianus have been
documented to have experienced a 10
percent decrease in volume and cover
between 1999 and 2009, and shrub
mortality has been high (Huggins et al.
2010, pp. 123–124). Such deterioration
in shrub canopy cover results in
increased ground temperature and light
intensity within the host shrub, and
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likely indirectly affects the
establishment and survival of A.
jaegerianus. This hypothesis was
supported by the observation that
survival of A. jaegerianus was higher in
host shrubs with more intact canopies.
The authors opine that continuing
drought in the Mojave Desert will lead
to local extirpations of this species
(Huggins et al. 2010, p. 127).
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Genetics
Recent genetic analysis of Astragalus
jaegerianus using AFLP (amplification
fragment length polymorphism) markers
showed that the species exhibits levels
of genetic variation that are more
consistent with species that are
geographically widespread with large
populations and numerous individuals,
with each population exhibiting a high
level of genetic variation and significant
population structure across the range of
the species (Walker and Metcalf 2008,
pp. 158–177). The observation of these
results in A. jaegerianus, a species with
a restricted range and few numbers of
individuals, leads the authors to opine
that the species has or is currently
undergoing population contraction. In
addition, the authors found that the
level of genetic differentiation between
the eastern half and the western half of
the Coolgardie population was
significant, and they recommended
these two areas be recognized as
separate populations.
In summary, we have considered new
information as described above, and
have incorporated it into this rule; none
of it has altered our analysis of how to
designate critical habitat for this
species. With respect to the
recommendation that two populations
of Astragalus jaegerianus be recognized
on Coolgardie Mesa, we acknowledge
that there may be two genetically
distinct populations; however, because
they are geographically contiguous, it
does not alter our delineation of the
critical habitat unit in this area.
Previous Federal Actions
The final rule listing Astragalus
jaegerianus as an endangered species
was published on October 6, 1998 (63
FR 53596). On November 15, 2001, our
decision not to designate critical habitat
for A. jaegerianus and seven other plant
and wildlife species at the time of
listing was challenged in Southwest
Center for Biological Diversity and
California Native Plant Society v.
Norton (Case No. 01–CV–2101–IEG (S.D.
Cal.). On July 1, 2002, the court ordered
the Service to reconsider its not prudent
determination, and propose critical
habitat, if prudent, for the species by
September 15, 2003, and issue a final
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critical habitat designation, if prudent,
no later than September 15, 2004. In
light of Natural Resources Defense
Council v. U.S. Department of the
Interior, 113 F.3d 1121 (9th Cir. 1997),
and the diminished threat of
overcollection, the Service reconsidered
its decision and determined that it was
prudent to propose critical habitat for
the species. However, the Service
exhausted the funding appropriated by
Congress to work on critical habitat
designations in 2003 prior to completing
the proposed rule. On September 8,
2003, the court issued an order
extending the date for issuance of the
proposed critical habitat designation for
A. jaegerianus to April 1, 2004, and the
final designation to April 1, 2005.
On April 6, 2004 (69 FR 18018), we
published a proposed critical habitat
designation that included 29,522 ac
(11,947 ha) in 4 units in San Bernardino
County, California. On April 8, 2005 (70
FR 18220), we published our final
designation of critical habitat for
Astragalus jaegerianus. Because we
excluded all proposed acreage from the
designation, the final designation
included zero (0) ac (0 ha).
On December 19, 2007, the 2005
critical habitat determination was
challenged by the Center for Biological
Diversity (Center for Biological Diversity
v. United States Fish and Wildlife
Service et al., Case No. CV–07–08221–
JFW–JCRx). In a settlement agreement
accepted by the court on June 27, 2008,
we agreed to reconsider the critical
habitat designation for Astragalus
jaegerianus. The settlement stipulated
that we submit a proposed revised
critical habitat rule for A. jaegerianus to
the Federal Register for publication on
or before April 1, 2010, and submit a
final revised determination on the
proposed critical habitat rule to the
Federal Register for publication on or
before April 1, 2011; the proposed
critical habitat rule was published on
April 1, 2010 (75 FR 16404). On
November 3, 2010, the document
making available the draft economic
analysis and reopening the public
comment period for the proposed
revised critical habitat designation was
published in the Federal Register (75
FR 67676). On December 28, 2010, the
court granted an extension for the
submission of the final revised critical
habitat determination to the Federal
Register on or before May 16, 2011. This
final revised critical habitat designation
complies with the June 27, 2008, and
December 28, 2010, court orders.
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Summary of Comments and
Recommendations
We requested written comments from
the public on the proposed revised
designation of critical habitat for
Astragalus jaegerianus during two
comment periods. The first comment
period associated with the publication
of the proposed revised critical habitat
designation (75 FR 16404) opened on
April 1, 2010, and closed June 1, 2010.
We also requested comments on the
proposed revised critical habitat
designation and associated draft
economic analysis during a second
comment period that opened November
3, 2010, and closed on December 3,
2010 (75 FR 67676). We did not receive
any requests for a public hearing. We
also contacted appropriate Federal,
State, and local agencies; scientific
organizations; and other interested
parties and invited them to comment on
the proposed revised rule and draft
economic analysis during these
comment periods.
During the first comment period, we
received seven comment letters directly
addressing the proposed revised critical
habitat designation. During the second
public comment period, we received 14
comment letters directly addressing the
proposed revision of critical habitat for
this species or the draft economic
analysis; 1 of these consisted of an
informal ‘‘petition,’’ with approximately
870 signatures, to the Bureau of Land
Management (Bureau) regarding
management of the Coolgardie area, and
1 of the comments was from a party that
previously commented in the first
comment period. All substantive
information provided during comment
periods has either been incorporated
directly into this final determination or
addressed below. Comments received
were grouped into five general
categories specifically relating to the
proposed revised critical habitat
designation for Astragalus jaegerianus,
and are addressed in the following
summary and incorporated into the final
revised critical habitat designation as
appropriate.
Peer Review
In accordance with our peer review
policy published on July 1, 1994 (59 FR
34270), we solicited expert opinions
from four knowledgeable individuals
with scientific expertise that included
familiarity with the species, the
geographic region in which it occurs, or
conservation biology principles
pertinent to the species. We received
responses from one of the four peer
reviewers.
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We reviewed all comments received
from the peer reviewer for substantive
issues and new information regarding
critical habitat for Astragalus
jaegerianus. Peer reviewer comments
are addressed in the following summary
and incorporated into the final rule as
appropriate.
Peer Reviewer Comments
Comment 1: The peer reviewer noted
that protection of existing habitat is
essential because, as with other
Astragalus taxa, this species may have
very narrow habitat requirements, and
translocation may have a low
probability of long-term success. The
reviewer also noted that the most
frequent pollinator of A. jaegerianus,
Anthidium dammersi, is a solitary bee
that nests in the ground, likely in close
proximity to A. jaegerianus plants.
Ground-nesting bees are highly sensitive
to activities that may compact soil, as
the nests may be damaged or destroyed,
such as may occur with off-highway
vehicles (OHVs), military vehicles,
construction or mining equipment, and
livestock grazing. The reviewer
concludes that the designation is
scientifically sound and essential to
protect the viability of A. jaegerianus
populations.
Our Response: We appreciate the peer
reviewer’s comments. As discussed in
the Methods section below, we took into
consideration all available information
concerning habitat requirements, as well
as the needs of pollinators and seed
dispersers, in delineating critical habitat
for this species.
Comment 2: The peer reviewer
commented that, because much of the
genetic diversity in Astragalus
jaegerianus is partitioned among
populations, it is important to designate
each of the [sites for] existing
populations as critical habitat. We also
received a comment from one of the
researchers that conducted the genetic
analysis (Walker and Metcalf 2008). He
corrected our characterization of the
results of the genetics analysis in the
proposed revised critical habitat
designation as follows: While DNA
sequencing techniques detected no
variation between individuals of A.
jaegerianus, the use of AFLP genetic
markers, which screen the whole
genome, showed that genetic variation
was high among the individuals tested.
Even though the results are more typical
of species that are geographically
widespread with large populations and
numerous individuals, the observation
of these results in A. jaegerianus, a
species with a restricted range and few
individuals, leads the authors to opine
that the species has or is currently
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undergoing population contraction
(Walker and Metcalf 2008 p. 172).
Our Response: We appreciate the
clarification on the results of the genetic
analyses. We acknowledge the
importance of maintaining genetic
diversity within the species, and have
designated all areas where Astragalus
jaegerianus occurs as critical habitat,
with the exception of those areas on
Fort Irwin that have been exempted
under 4(a)(3)(b) of the Act. Because all
areas where the species occurs were
already included in the proposed
critical habitat designation, no changes
were made based on the information
obtained from the genetic studies.
Federal Agency Comments
Comment 3: The Bureau provided an
update on the status of lands
conservation efforts within the
Coolgardie and Paradise Areas of
Critical Environmental Concern
(ACECs), as per the prescriptions in the
West Mojave Plan (WMP) (Bureau 2010,
in litt.). In particular, they noted that:
• No project permits were issued in
this area in 2010 (Prescription (P) 26);
• No grazing has been authorized
(P27);
• An additional 7 miles (mi) (11
kilometers (km)) of post and cable
barrier fence was installed in 2010 and
routes were reclaimed in the southwest
corner of the Coolgardie ACEC and
Rainbow Basin (P28), and route
rehabilitation and signing will continue
in 2011;
• The Department of Defense (DOD)
intends to transfer management of lands
they have acquired for conservation
within the ACEC boundaries to the
Bureau in 2011 (P29);
• Mining claimholders are being
contacted to determine if any of these
claims could be surrendered (P30); and
• The Bureau has installed post and
cable fencing to prevent access to
Coolgardie Mesa from Rainbow Basin
(P31).
In addition, the Bureau reports that
ranger patrols have increased in the
Coolgardie Mesa area with additional
funding provided by the DOD.
Our Response: We appreciate
receiving these comments and note the
Bureau’s continuing efforts to
implement conservation measures for
this species.
State Agency Comments
Section 4(i) of the Act states, ‘‘the
Secretary shall submit to the State
agency a written justification for his
failure to adopt regulations consistent
with the agency’s comments or
petition.’’ In 2004, we contacted the
California Department of Fish and Game
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(CDFG) concerning the previous 2004
proposed critical habitat designation;
however, the agency chose not to submit
comments on the proposed critical
habitat designation for Astragalus
jaegerianus. The State notified us that
submitting comments on the proposed
critical habitat designation was a low
priority for them because they are
participants in the WMP planning
process, and have previously
commented on the conservation
measures that were proposed for A.
jaegerianus in the draft WMP (CDFG
2003, in litt., pp. 71–72). Furthermore,
many of the private parcels that would
be subject to State environmental
regulations have been or are being
purchased by DOD and transferred to
the Bureau for inclusion in the
Coolgardie and Paradise ACECs.
Because of this action, the State’s
concern over private lands issues has
been greatly diminished in this area. We
contacted the CDFG again in 2010
concerning our most recent proposed
revised critical habitat designation; the
State provided no comments.
Public Comments
Comment 4: One commenter was
concerned that the public did not have
adequate notification concerning the
proposed revised critical habitat
designation and that there should have
been a meeting with all concerned
parties.
Our Response: The Service conducted
outreach by notifying appropriate
elected officials, local jurisdictions,
interested parties, and members of the
public that had been identified during
the previous critical habitat designation
process in 2004–2005. We also
published a legal notice in the Barstow
Dispatch on April 7, 2010, concerning
the proposed revised critical habitat
designation and the first open comment
period; published a news release; and
posted information on the Ventura Fish
and Wildlife Office Web site as well as
on www.Regulations.gov. The second
comment period was similarly noticed
by a news release and postings on our
office’s Web site and
www.Regulations.gov. In addition, we
received no requests for a public hearing
from members of the public when the
proposed revised critical habitat
designation was published. We believe
we have provided sufficient opportunity
for public comment with two open
comment periods totaling 90 days.
Comment 5: Several commenters
expressed concern over the amount of
acreage that was being ‘‘set aside’’ and
how this would affect the high desert
community and their freedom to enjoy
the desert. One commenter thought that
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these lands could not be enjoyed by
future generations because they are
locked away from motorized travel.
Our Response: As discussed in the
Background of the Critical Habitat
section of this rule, the designation of
critical habitat does not affect land
ownership or establish a refuge,
wilderness, reserve, preserve, or other
conservation area. Such designation
does not allow the government or public
to access private lands, or require
implementation of restoration, recovery,
or enhancement measures by private
landowners. Designation of critical
habitat only affects activities authorized,
funded, or carried out by Federal
agencies. Some kinds of activities are
unlikely to have any Federal
involvement, and so, will not be
affected by critical habitat designation
(see Effects of Critical Habitat
Designation section below). We
anticipate that the Bureau will continue
to allow access to and manage vehicle
use and other recreational activities
within this area according to the
provisions of the WMP amendment to
the CDCA (California Desert
Conservation Area) Plan. The critical
habitat designation does not affect
private lands or other non-Federal lands
unless a Federal agency proposes to
authorize, fund, or carry out an activity
on those lands.
Comment 6: One commenter
questioned whether private landowners
would be ‘‘excluded’’ from the area.
Our Response: Private landowners are
not excluded and may still access their
lands that fall within a critical habitat
designation. As discussed above, the
designation of critical habitat does not
affect land ownership or establish a
refuge, wilderness, reserve, preserve, or
other conservation area, and it does not
alter, in any manner, landowners’ access
to their lands. In addition, it does not
require private landowners to
implement restoration, recovery, or
enhancement measures. See Effects of
Critical Habitat Designation section
below and the 2010 DEA for additional
information on the implications of
critical habitat designation to private
landowners.
Comment 7: One commenter
requested that we expand the habitat of
Astragalus jaegerianus because it is the
‘‘primary food of many species and has
potential medical benefits for humans.’’
Our Response: We have designated all
areas where Astragalus jaegerianus is
known to exist outside of Fort Irwin as
critical habitat. Based on numerous
surveys, we do not expect to find
additional occurrences outside of the
designated area; also, given the species’
specific ecological needs, we cannot
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reasonably expect to expand the area
that it inhabits. The commenter did not
provide information documenting the
use of A. jaegerianus as a source of food
or medicine, and at this time, we have
no information to indicate that A.
jaegerianus is the primary food of any
species, although it may have some, as
yet undetermined, medical value to
humans.
Comment 8: Several commenters
noted that they enjoy panning for gold
in the open desert or working small
mining claims in the Coolgardie Mesa
area and do not wish to see the area
closed.
Our Response: The designation of
critical habitat for Astragalus
jaegerianus will not result in closure of
any areas. As we have noted previously,
it will not affect non-Federal lands,
unless a Federal agency is proposing to
authorize, fund, or carry out an action
on that land. Although the designation
of critical habitat may require the
Bureau to reassess its land use plans,
recreational activities such as panning
for gold are not expected to negatively
affect land use within the area. Under
the casual use provisions of the CDCA
Plan, individuals may continue to pan
for gold. In general, we do not expect
that such use, which is conducted on a
fairly small scale, will compromise the
function of critical habitat for A.
jaegerianus; consequently, at this time,
we do not anticipate requesting that the
Bureau reassess the provisions of the
CDCA Plan with regard to this activity.
Sites where mining claims have been
worked previously are unlikely to
support the primary constituent
elements (PCEs) of critical habitat
because they are typically located in
pockets of deeper soils where
Astragalus jaegerianus does not grow.
Because Astragalus jaegerianus occurs
only under specific habitat conditions,
we expect that the Bureau is unlikely to
alter the use of those claims.
We note, however, that one of the
purposes of the designation of critical
habitat is to provide for the conservation
of listed species. If we, or the Bureau,
identified an area within critical habitat
that contained the PCEs and was
threatened by mining activities, we
would work with the Bureau and
claimants to attempt to conserve the
critical habitat values of that area. After
the close of the comment period for this
rule, we received information that
‘‘prybar mining’’ had been observed at
one site on Coolgardie Mesa adjacent to
known Astragalus jaegerianus plants
(Silverman 2011 in litt.). Unlike the
traditional gold panning or drywash
methods of mining, this method uses a
prybar to break apart rock outcrops;
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29111
such outcrops are found adjacent to
shallow-soiled areas where Astragalus
jaegerianus grows. We have notified the
Bureau regarding this information and
will work with them to evaluate
potential impacts to the species.
Comment 9: One commenter notes
that ‘‘nothing lasts forever’’ and that we
should use our resources to ‘‘recultivate’’
rather than preserving our world as a
museum.
Our Response: We recognize that the
natural world is one of change.
Astragalus jaegerianus is, however,
threatened by human activities and the
designation of critical habitat is one tool
we can use to reduce or eliminate those
threats. Our goal in conserving A.
jaegerianus is not to create a static
museum display, but to conserve the
species and the ecosystem upon which
it depends. We acknowledge that this
ecosystem may change to the point that
it no longer supports this species;
however, our goal is to ensure that the
changes are effected by the natural
world, and not human activities.
Comment 10: One commenter
described the level of unauthorized
OHV use that they have observed on
Coolgardie Mesa, and notes that this use
has killed several individuals of
Astragalus jaegerianus. The commenter
notes that this unauthorized use has
increased from 2001 to 2010, and that a
fence constructed by the Bureau has
eliminated one area of extensive
unauthorized use, but that the use has
shifted to nearby areas.
Our Response: We acknowledge that
unauthorized off-highway use of areas
occupied by Astragalus jaegerianus
continues. We will continue to work
with the Bureau to attempt to manage
off-highway vehicle use within the area
of critical habitat so public land users
have access to Coolgardie Mesa in a
manner that will facilitate the
conservation of A jaegerianus.
Comment 11: One commenter notes
he has never encountered a Bureau
ranger or other law enforcement officer
on Coolgardie Mesa and anticipates that
the Bureau or Service will install a fence
to prevent access to public lands.
Our Response: The Service is aware
that the Bureau cannot maintain a
constant law enforcement presence in
the Coolgardie Mesa area; and we
continue to work with the Bureau to
attempt to increase the public’s
compliance with existing land-use
regulations. We understand that the
Bureau will continue to install fencing
along designated open routes of travel to
prevent unauthorized off-road vehicle
use. To the best of our knowledge, the
Bureau has no intention of installing a
fence around the boundaries of critical
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habitat, and the Service has no authority
to install such a fence.
Comment 12: One commenter urged
the Service to think about how the
potential development of large-scale
solar and wind projects in the desert
could affect Astragalus jaegerianus, and
questioned whether more critical habitat
should be set aside given these future
losses of desert habitat.
Our Response: Because extensive
surveys have been conducted for
Astragalus jaegerianus, including in
areas outside the known geographic
range of the species, we have a high
level of certainty that A. jaegerianus
does not occur in other areas of the
Mojave Desert. Therefore, we anticipate
that large-scale solar and wind energy
projects across the Mojave Desert and
future losses of desert habitat that may
occur will not affect A. jaegerianus.
With respect to the geographic area
within the Mojave Desert where
Astragalus jaegerianus occurs,
management of this habitat was
discussed in the April 1, 2010, proposed
revised critical habitat designation (75
FR 16404). Congress passed the Energy
Policy Act of 2005; subsequently, the
Bureau issued step-down orders that
address more specifically how to
implement the Energy Policy Act of
2005 (for example, Order No. 3283 (DOI
2009a pp. 1–2) and Order No. 3285 (DOI
2009b pp. 1–3)). In addition, the Bureau
has issued its own guidelines for
implementing these policies and orders
on Bureau lands. For instance, in 2008,
the Bureau issued Instruction
Memorandum (IM) 2009–043, the Wind
Energy Development Policy, which
includes guidelines for the development
of wind energy projects within
designated ACECs (Bureau 2008, p. 2).
No alternative energy projects have been
permitted or proposed within areas we
are designating as critical habitat for A.
jaegerianus, although the Bureau has
received expressions of interest from
wind energy companies that are seeking
sites for wind energy development.
Comment 13: One commenter
reported seeing Astragalus jaegerianus
outside of the area included in the
proposed revised critical habitat
designation, and included photos
showing plants growing adjacent to
OHV trails.
Our Response: We examined the
photos and determined the subject
plants are not Astragalus jaegerianus,
but a species of larkspur (Delphinium)
in the buttercup family
(Ranunculaceae).
Comment 14: One commenter stated
that the proposed revised critical habitat
designation failed to include adequate
critical habitat to protect and conserve
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all known extant occurrences of
Astragalus jaegerianus.
Our Response: As per guidance on
determining critical habitat, we took
into consideration all known extant
occurrences of Astragalus jaegerianus
(see previous April 6, 2004, proposed
critical habitat designation (69 FR
18018), and the April 1, 2010, proposed
revised critical habitat designation (75
FR 16404). All known occurrences of A.
jaegerianus are included in our final
critical habitat designation, with the
exception of lands within Fort Irwin,
which are exempted under section
4(a)(3) of the Act due to an approved
INRMP that benefits the conservation of
the species. See the Exemptions section
below.
Comment 15: One commenter asserts
that the proposed revised critical habitat
designation ignored the recovery goal of
critical habitat because we did not
include unoccupied habitat for recovery
of the species (as per Gifford Pinchot
Task Force v. U.S. Fish and Wildlife
Service 378 F.3d 1059, 1069–70 (9th
Circuit 2004) ruling). The commenter
also refers to an analysis of listed
species with and without critical habitat
that indicates species with critical
habitat are more likely to be recovering
than species that lack the designation
(and cites Taylor et al. 2005). The
commenter suggests we should have
used robust models for conservation
design (and cites Burgman et al. 2001)
to estimate additional areas important
for recovery of the species.
Our Response: A critical habitat
designation does not need to include
habitat unoccupied at the time of listing
for recovery of the species. We can
include such habitat areas if we
determine that those lands are essential
for the conservation of the species.
However, in this case, we did not
designate any areas outside the
geographical area occupied by the
species because: (1) We believe the size
of the occupied areas are sufficient for
the conservation of the species, and (2)
based on extensive surveys for the
species, these areas best represent what
is needed for the conservation of the
species.
With respect to the comment that
species with critical habitat are more
likely to be recovering than species that
lack the designation, we note that in
Taylor et al. (2005), the authors opine
that this may be the case because, in
practice, land managers have often
given significant protection to critical
habitats. In the case of Astragalus
jaegerianus, we note that the Bureau
had already developed
recommendations to establish ACECs on
Coolgardie Mesa and Paradise, and
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provide conservation-oriented
management prescriptions in the draft
WMP, prior to the publication of our
previous 2004 proposed critical habitat
designation.
With respect to using robust models
for conservation design, we
acknowledge it would be useful to have
sufficient biological information to
construct such a model. In this case,
however, because we do not have the
level of detail necessary to develop the
type of model used in Burgman et al.
(2001), we are using the best available
scientific information to identify critical
habitat, as described in the Methods
section.
Comment 16: One commenter stated
that the critical habitat designation
should be based on conservation biology
principles and include sufficient lands
to maintain connectivity and reduce
fragmentation between populations (as
cited in the literature, e.g., Debinski,
and Holt 2000, Noss et al. 1997, Honnay
and Jacquemyn 2006), especially since
intervening habitat is important for
pollinators. Furthermore, genetic
studies on Astragalus jaegerianus
indicate an already limited gene flow
between populations, and further
isolation may decrease genetic variation
and ability of the species to adapt to
environmental variation (Noss et al.
1997).
Our Response: We agree that
principles of conservation biology
(including maintaining gene flow
between populations) are useful to
consider in identifying critical habitat.
We have acknowledged their
importance in our discussion under the
Physical and Biological Features and
Methods sections in this final revised
critical habitat designation and the
April 1, 2010, proposed revised critical
habitat designation (75 FR 16404), and
have used the best scientific information
available in the development of this
designation. The critical habitat
designation in and of itself will do
nothing one way or the other to affect
the degree of fragmentation between
populations.
Comment 17: One commenter stated
that it is important to include currently
unoccupied habitat for the species in
the critical habitat designation because
of the potential effects of climate change
on temperature and precipitation, even
if these are not well-understood.
Our Response: While climate change
modeling has been undertaken for the
Great Basin and Sonoran Desert regions
(for example, see Redmond 2010), very
little modeling has been conducted for
the Mojave Desert region to date. Recent
studies, however, have discussed the
effects of drought on desert shrubs
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including localized diebacks and
drought-pruning (for example, see
Breshears et al. 2005, pp. 15144–15148;
Hereford et al. 2006, pp. 13–34;
Haymerlynck and Huxman 2009, pp.
582–585; and McAuliffe and
Haymerlynck 2010, pp.885–896).
Huggins et al. (2010, pp. 120–128)
studied the effects of recent drought on
host shrubs that support Astragalus
jaegerianus and found higher survival
rates of A. jaegerianus in host shrubs
with more intact canopies, providing
the first evidence that recent drought
conditions in the Mojave Desert could
be indirectly affecting the survivorship
of A. jaegerianus. However, based on
the best available scientific information,
we are unable to predict at this time
additional areas that could support A.
jaegerianus in the future.
Comment 18: One commenter stated
that the Service should not exclude
areas that are covered by the Bureau’s
WMP from the critical habitat
designation by using the logic that they
do not need ‘‘special management’’ or
through an exclusion through section
4(b)(2) of the Act; by definition, these
areas qualify as critical habitat.
Our Response: Our revised final
critical habitat designation includes all
Bureau lands that are included in the
WMP.
Comment 19: One commenter notes
that Fort Irwin does not seem to be
affected by the designation of critical
habitat.
Our Response: In 2004, Congress
amended the Act to exempt DODmanaged lands from critical habitat
designations if the military installation
has an INRMP that is determined to
provide a benefit to the species. Fort
Irwin has such a plan that the Service
has reviewed and approved. We
acknowledge that military training at
Fort Irwin will result in the loss of
habitat for Astragalus jaegerianus;
however, the Army has also established
two areas, totaling 6,772 ac (2,741 ha),
where all training will be prohibited to
protect this species. In another area,
comprising 3,700 ac (1,497 ha), all
vehicular traffic will be restricted to a
limited number of roads to protect A.
jaegerianus.
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Comments Related to the Draft
Economic Analysis
Comment 20: One commenter stated
that the economic analysis needs to
include all habitat currently occupied
by Astragalus jaegerianus, including
lands on Fort Irwin, and not rely on the
‘‘flawed’’ proposed revised critical
habitat designation as the basis for the
analysis.
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Our Response: The DEA includes a
discussion of all geographic areas
occupied by the species; the areas
occupied by the species on Fort Irwin
are not included in the designation
because they are exempted through
section 4(a)(3)(b) of the Act.
Comment 21: One commenter stated
that the DEA incorrectly asserts that,
‘‘[a]ll Federal land is managed for
purposes of Astragalus jaegerianus
conservation according to the WMP.’’
The comment notes that, while some of
the areas proposed for critical habitat
are within ACECs designated by the
WMP, these areas still allow some level
of OHV use, causing habitat
fragmentation and opportunities for
illegal OHV use in the areas designated
as critical habitat.
Our Response: The final EA has been
amended to state that all Bureau lands
are managed according to the WMP for
the purposes of Astragalus jaegerianus
conservation. The objective of the WMP
is to provide a conservation strategy for
sensitive plant and animal species,
including A. jaegerianus. The DEA does
not assert that the management of the
proposed critical habitat area according
to the WMP precludes all OHV use
within the boundaries of the proposed
critical habitat area. Specifically,
Section 3.2.2 of the DEA describes that
vehicle routes within the proposed
critical habitat area are classified under
the WMP as open, closed, or limited,
and all OHV-users must comply with
the road designations. Section 3.2.2
further describes that because of damage
related to unauthorized use, the Bureau
has fenced portions of the West Paradise
ACEC and the Coolgardie Mesa ACEC.
As noted in the final EA, however,
‘‘Vehicle use will not be altogether
precluded, due to the need to provide
access to the private lands and mining
claims.’’ The DOD is not permitting any
activities on DOD lands within the
boundaries of the ACECs, since the
intent of their acquisition is to transfer
them to the Bureau.
Comment 22: A comment provided on
the DEA states that there is some
development pressure, particularly with
regard to wind energy development, on
private parcels within the ACEC areas
until these parcels are acquired to
consolidate public land ownership.
Our Response: As described in
Section 3.1 of the DEA, the private
parcels within the proposed designation
are primarily homesteads interspersed
within the ACECs. No development
activities, such as wind energy projects,
have been subject to section 7
consultation under the Act regarding the
Astragalus jaegerianus on these private
lands. While it is possible that such
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projects may be proposed in the future,
only those projects subject to a Federal
nexus (i.e., projects permitted, funded,
or carried out by a Federal agency) may
result in section 7 consultation with the
Service. No such consultations have
occurred for any projects on private
lands in A. jaegerianus habitat to date.
The probability of future wind energy
projects being proposed on private lands
within the proposed critical habitat area
is uncertain; however, we do not
anticipate any development of wind
energy in the area. See also response to
Comment 12 above and the Energy
Supply, Distribution, or Use section
below.
Comment 23: Multiple comments
state that any restrictions placed upon
the proposed critical habitat area will
result in losses to miners and OHV
users. One of these comments further
states that recreationists contribute
millions of dollars to the regional
economy. Another comment asserts the
DEA does not correctly assess the effect
of restrictions on certain land-use
activities on local, regional, and
national economies.
Our Response: Section 3.2 of the DEA
describes that land use activities, such
as mining and OHV recreation, are
currently restricted within the proposed
critical habitat area, even absent critical
habitat designation. The Federal lands
in the proposed critical habitat area (79
percent of the proposed critical habitat)
are managed for Astragalus jaegerianus
conservation according to the WMP,
which has limited access to the habitat
area through closing some vehicle
routes and fencing ACECs containing A.
jaegerianus habitat. Section 3.3.1 of the
DEA describes that, due to the existing
management of habitat threats through
the WMP, critical habitat for A.
jaegerianus is not expected to result in
additional conservation measures for
the species on Federal lands. Section
3.3.2 of the DEA further describes that
the private land uses within proposed
critical habitat (small scattered parcels
containing homesteads) are not likely to
trigger section 7 consultation or the
California Environmental Quality Act
(CEQA) requirements and, therefore,
critical habitat designation of these
lands is not anticipated to restrict landuse activities. Thus, the DEA does not
expect critical habitat to generate any
additional restrictions on land-use
activities that will result in impacts to
the local, regional, or national
economies.
Comment 24: A comment provided on
the DEA suggests that, if there are no
economic costs associated with the
critical habitat designation due to the
existing conservation measures for the
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species, it is likely that there is no need
for the designation. The comment
further states that the designation must
result in some economic impacts due to
project delays and costs of consultation
with the Service.
Our Response: Even though there
were no economic costs identified in the
final EA associated with the critical
habitat designation due to existing
conservation measures for the species,
the areas proposed for designation meet
the definition of critical habitat, and
therefore are included in the
designation.
Section 3.3.1 of the DEA describes
that critical habitat designation is not
expected to result in additional section
7 consultations. The section also notes
that any future consultations
considering Astragalus jaegerianus will
experience some incremental
administrative costs to consider
potential adverse modification of
critical habitat. Due to the continued
management of the critical habitat area
by the Bureau according to the WMP,
however, the DEA anticipates only a
single, informal consultation with the
Bureau regarding the pending land
transfer between the DOD and the
Bureau. The Bureau does not anticipate
consulting with the Service on other
land management activities, and no
consultations are forecast to occur for
activities on private lands. Thus, the
DEA concludes that the incremental
administrative costs of consultation
associated with the critical habitat
designation are most likely to be
negligible; the DEA did not predict any
project delays.
Comment 25: One comment asserts
that the DEA fails to calculate the
benefits of the critical habitat
designation, stating that all types of
benefits should be assessed and
quantified or, where quantification is
inappropriate or too speculative, should
be described qualitatively to allow for a
comparison of costs to benefits.
Our Response: As described in
Section 3.4 of the DEA, critical habitat
designation is not expected to generate:
(1) Additional conservation efforts for
Astragalus jaegerianus; (2) changes in
economic activity; or (3) changes to land
management. Absent any changes in the
above, no incremental economic
benefits are forecast to result from the
designation of critical habitat.
We believe the commenter is referring
to benefits with respect to 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
decisionmaking process under section
4(b)(2) of the Act, the Act explicitly
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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, because Congress has
already clarified the social importance
of the species and its habitat. 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 we
need only to consider whether the
economic impacts (both positive and
negative) are significant enough to merit
exclusion of any particular area without
causing the species to go extinct.
Comment 26: A comment provided on
the DEA states that the document
should explain the differences between
the October 2004 DEA of the previous
proposed critical habitat designation for
Astragalus jaegerianus and the 2010
DEA of the proposed revised critical
habitat designation. The 2004 analysis
quantified both pre-designation
(occurring from the time of listing to
final critical habitat designation) and
post-designation impacts, estimating
$5.84 million to $13.01 million in postdesignation impacts. The 2010 DEA,
however, does not quantify any impacts.
The comment further asserts that there
must be some economic impact
associated with fencing areas, effects on
military activities, relocating OHV use,
and precluding mining and energy
projects.
Our Response: Section 1.3 of the DEA
describes the differences between the
2005 Economic Analysis (which is the
final version of the October 2004 DEA
referenced in this comment) and the
2010 DEA of the revised proposed
critical habitat.
First, the 2005 Economic Analysis
and the 2010 DEA apply different
analytic frameworks. The 2005
Economic Analysis quantified impacts
of all Astragalus jaegerianus
conservation in the areas being
proposed as critical habitat, regardless
of whether the conservation efforts were
occurring due to critical habitat
designation or other baseline regulations
or conservation plans. As a result, the
impacts quantified in the 2005
Economic Analysis include impacts due
to such baseline protections as Federal
listing of A. jaegerianus,
implementation of the West Mojave
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Plan, and DOD conservation efforts for
A. jaegerianus at the National Training
Center at Fort Irwin (NTC). The 2010
DEA, however, focuses on those impacts
resulting incrementally from critical
habitat designation, as described in
Chapter 2. That is, we do not include
impacts of A. jaegerianus conservation
occurring due to the implementation of
baseline protections, plans, or
regulations. Thus, impacts of activities
such as fencing, limiting OHV activity,
mining, and energy projects are not
quantified in the 2010 DEA, as they are
expected to occur regardless of the
critical habitat designation.
Second, the proposed critical habitat
area considered in the 2005 Economic
Analysis was more than double the
proposed critical habitat area being
considered in the 2010 DEA. The
primary reason for the difference in
scope is that the Service’s 2010
proposed revised critical habitat
designation exempted 16,462 ac (6,662
ha) located within DOD’s National
Training Center at Fort Irwin from
critical habitat designation. Because this
area is exempt from critical habitat
designation, no impacts of critical
habitat are expected to occur on these
lands.
Summary of Changes From the
Proposed Revised Rule and Previous
Critical Habitat Designation
In our final revised critical habitat
rules, we typically provide a Summary
of Changes that compares the final
revised critical habitat designation with
the previously proposed revised critical
habitat designation as well as with
previously designated critical habitat.
However, we designated zero (0) ac
(0 ha) in our previous designation.
Therefore, we are also providing
comparison between the previously
proposed critical habitat designation
from April 6, 2004 (69 FR 18018), the
proposed revised critical habitat
designation from April 1, 2010 (75 FR
16404), and this final revised critical
habitat designation. There are no
changes from the April 1, 2010,
proposed revised critical habitat
designation and this final revised
critical habitat designation. This final
revised critical habitat designation
compares with the previous April 6,
2004, proposed designation (69 FR
18018) as follows:
(1) In 2004, we proposed 9,627 ac
(3,896 ha) of Bureau lands and 4,427 ac
(1,792 ha) of private lands. Currently we
are designating 9,888 ac (4,002 ha) of
Bureau lands and 2,899 ac (1,169 ha) of
private lands.
(2) In 2004, we proposed 211 ac (85
ha) of lands inaccurately identified as
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State lands. In this revised designation
we are not including, through
exemption under section 4(a)(3) of the
Act, 211 ac (85 ha) of the NTC lands
covered under the Army’s INRMP. The
land was inaccurately identified as State
Lands in our 2004 proposed critical
habitat rule.
(3) In this revised designation we are
including 1,282 ac (519 ha) of lands that
were formerly in private ownership but
have been acquired by the DOD for the
purposes of conservation of Astragalus
jaegerianus. These lands are not
contiguous with the NTC and are not
covered under the Army’s INRMP.
(4) We are not designating through
exemption under section 4(a)(3) of the
Act, 16,462 ac (6,662 ha) of the NTC
lands covered under the Army’s INRMP.
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Below, table 1 compares the acreage
by land ownership included in the
previous 2004 proposed critical habitat
designation and the previous 2005 final
critical habitat designation, with what
we proposed in the 2010 revision and
are including in this final revised
critical habitat designation.
TABLE 1—COMPARISON OF ACREAGES INCLUDED IN PREVIOUS AND CURRENT RULEMAKING ACTIONS FOR Astragalus
jaegerianus
Name of critical habitat unit
2004 proposed
designation of critical
habitat (69 FR 18018)
2005 final revision to the
critical habitat designation
(70 FR 18220)
2010 proposed revised
critical habitat designation
(75 FR 16404)
2011 final revised critical
habitat designation
Goldstone-Brinkman ............
9,906 ac (4,008 ha) ..........
Excluded (all) 0 ac (0 ha)
Paradise ..............................
6,828 ac (2,763 ha) ..........
Excluded (all) 0 ac (0 ha)
Coolgardie ...........................
12,788 ac (5,175 ha) ........
Excluded (all) 0 ac (0 ha)
Totals ...........................
29,522 ac (11,947 ha) ......
0 ac (0 ha) ........................
10,394 ac (4,206 ha) exempted due to INRMP
on NTC lands.
A portion exempted due to
INRMP on NTC lands,
6,068 ac (2,456 ha); a
portion included 964 ac
(390 ha).
13,105 ac (5,303 ha) included.
14,069 ac (5,693 ha) ........
10,394 ac (4,206 ha) exempted due to INRMP
on NTC lands.
A portion exempted due to
INRMP on NTC lands,
6,068 ac (2,456 ha); a
portion included 964 ac
(390 ha).
13,105 ac (5,303 ha) included.
14,069 ac (5,693 ha).
Note: Land areas may not sum due to rounding.
Critical Habitat
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Background
Critical habitat is defined in section 3
of the Act as:
(1) The specific areas within the
geographical area occupied by a species,
at the time it is listed in accordance
with the Act, on which are found those
physical or biological features
(a) Essential to the conservation of the
species, and
(b) Which may require special
management considerations or
protection; and
(2) Specific areas outside the
geographical area occupied by the
species at the time it is listed, upon a
determination that such areas are
essential for the conservation of the
species.
Conservation, as defined under
section 3 of the Act, means to use and
the use of all methods and procedures
that are necessary to bring an
endangered species or threatened
species to the point at which the
measures provided pursuant to the Act
are no longer necessary. Such methods
and procedures include, but are not
limited to, all activities associated with
scientific resources management such as
research, census, law enforcement,
habitat acquisition and maintenance,
propagation, live trapping, and
transplantation, and, in the
extraordinary case where population
pressures within a given ecosystem
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cannot otherwise be relieved, may
include regulated taking.
Critical habitat receives protection
under section 7 of the Act through the
requirement that Federal agencies
insure, in consultation with the Service,
that any action they authorize, fund, or
carry out is not likely to result in the
destruction or adverse modification of
critical habitat. The designation of
critical habitat does not affect land
ownership or establish a refuge,
wilderness, reserve, preserve, or other
conservation area. Such designation
does not allow the government or public
to access private lands. Such
designation does not require
implementation of restoration, recovery,
or enhancement measures by nonFederal landowners. Where a landowner
seeks or requests Federal agency
funding or authorization of an action
that may affect a listed species or
critical habitat, the consultation
requirements of section 7(a)(2) of the
Act would apply, but even in the event
of a destruction or adverse modification
finding, the obligation of the Federal
action agency and the landowner is not
to restore or recover the species, but to
implement reasonable and prudent
alternatives to avoid destruction or
adverse modification of critical habitat.
For inclusion in a critical habitat
designation, the habitat within the
geographical area occupied by the
species at the time it was listed must
contain physical and biological features
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(PBFs) which are essential to the
conservation of the species and which
may require special management
considerations or protection. Critical
habitat designations identify, to the
extent known using the best scientific
and commercial data available, those
PBFs that are essential to the
conservation of the species (such as
space, food, cover, and protected
habitat), focusing on the principal
biological or physical constituent
elements (primary constituent elements)
within an area that are essential to the
conservation of the species (such as
roost sites, nesting grounds, seasonal
wetlands, water quality, tide, soil type).
Primary constituent elements are the
elements of PBFs that, when laid out in
the appropriate quantity and spatial
arrangement to provide for a species’
life-history processes, are essential to
the conservation of the species.
Under the Act, we can designate
critical habitat in areas outside the
geographical area occupied by the
species at the time it is listed, upon a
determination that such areas are
essential for the conservation of the
species. According to regulations at 50
CFR 424.12, we designate critical
habitat in areas outside the geographical
area presently occupied by a species
only when a designation limited to its
present range would be inadequate to
ensure the conservation of the species.
When the best available scientific data
do not demonstrate that the
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conservation needs of the species
require such additional areas, we will
not designate critical habitat in areas
outside the geographical area occupied
by the species. An area currently
occupied by the species but that was not
occupied at the time of listing may,
however, be essential to the
conservation of the species and may be
included in the critical habitat
designation.
Section 4 of the Act requires that we
designate critical habitat on the basis of
the best scientific and commercial data
available. Further, our Policy on
Information Standards Under the
Endangered Species Act (published in
the Federal Register on July 1, 1994 (59
FR 34271)), the Information Quality Act
(section 515 of the Treasury and General
Government Appropriations Act for
Fiscal Year 2001 (Pub. L. 106–554; H.R.
5658)), and our associated Information
Quality Guidelines, provide criteria,
establish procedures, and provide
guidance to ensure that our decisions
are based on the best scientific data
available. They require our biologists, to
the extent consistent with the Act and
with the use of the best scientific data
available, to use primary and original
sources of information as the basis for
recommendations to designate critical
habitat.
When we are determining which areas
should be designated as critical habitat,
our primary source of information is
generally the information developed
during the listing process for the species
and any previous designation of critical
habitat. Additional information sources
may include the recovery plan, 5-year
reviews for the species, articles in peerreviewed journals, conservation plans
developed by States and counties,
scientific status surveys and studies,
biological assessments, or other
unpublished materials and expert
opinion or personal knowledge.
Habitat is dynamic, and species may
move from one area to another over
time. Climate change will be a particular
challenge for biodiversity because the
interaction of additional stressors
associated with climate change and
current stressors may push species
beyond their ability to survive (Lovejoy
2005, pp. 325–326). The synergistic
implications of climate change and
habitat fragmentation are the most
threatening facet of climate change for
biodiversity (Hannah et al. 2005, p. 4).
Current climate change predictions for
terrestrial areas in the Northern
Hemisphere indicate warmer air
temperatures, more intense
precipitation events, and increased
summer continental drying (Field et al.
1999, pp. 1–3; Hayhoe et al. 2004,
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p. 12422; Cayan et al. 2005, p. 6;
Intergovernmental Panel on Climate
Change 2007, p. 1181). Climate change
may lead to increased frequency and
duration of severe storms and droughts
(Golladay et al. 2004, p. 504;
McLaughlin et al. 2002, p. 6074; Cook
et al. 2004, p. 1015).
Some efforts have been made to
predict the effects of climate change in
the Western States region (see Redmond
2010). However, predictions of climatic
conditions for smaller subregions, such
as the Mojave Desert in California,
remain uncertain. It is unknown at this
time if climate change in the Mojave
Desert in California will result in a
warmer trend with localized drying,
higher precipitation events, or other
effects. Thus, the information currently
available on the effects of global climate
change and increasing temperatures
does not make sufficiently precise
estimates of the location and magnitude
of the effects. Nor are we currently
aware of any climate change
information specific to the habitat of
Astragalus jaegerianus that would
indicate what areas may become
important to the species in the future.
Therefore, we are unable to determine
what additional areas, if any, may be
appropriate to include in the final
revised critical habitat for this species to
respond to potential effects of climate
change.
We specifically requested information
from the public on the currently
predicted effects of climate change on
Astragalus jaegerianus and its habitat,
and we have included a discussion of
potential effects of the current drought
on host shrubs and indirect effects on A.
jaegerianus (Huggins et al. 2010, pp.
120–128). Should drought conditions
continue in the Mojave Desert,
regardless of whether it is caused by
climate change or other short-term
weather variation, it may affect the longterm persistence of A. jaegerianus. We
recognize that critical habitat designated
at a particular point in time may not
include all of the habitat areas that we
may later determine are necessary for
the recovery of the species. For these
reasons, a critical habitat designation
does not signal that habitat outside the
designated critical habitat area is
unimportant or may not be required for
recovery of the species.
Areas that are important to the
conservation of the species, both inside
and outside the critical habitat
designation, will continue to be subject
to: (1) Conservation actions
implemented under section 7(a)(1) of
the Act, (2) regulatory protections
afforded by the requirement in section
7(a)(2) of the Act for Federal agencies to
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insure their actions are not likely to
jeopardize the continued existence of
any endangered or threatened species,
and (3) the prohibitions of section 9 of
the Act if actions occurring in these
areas may affect the species. Federally
funded or permitted projects affecting
listed species outside their designated
critical habitat areas may still result in
jeopardy findings in some cases. These
protections and conservation tools will
continue to contribute to recovery of
this species. Similarly, critical habitat
designations made on the basis of the
best available information at the time of
designation will not control the
direction and substance of future
recovery plans, habitat conservation
plans (HCPs), or other species
conservation planning efforts if new
information available at the time of
these planning efforts calls for a
different outcome.
Physical and Biological Features
In accordance with section 3(5)(A)(i)
and 4(b)(1)(A) of the Act and regulations
at 50 CFR 424.12, in determining which
areas within the geographical area
occupied at the time of listing to
propose as critical habitat, we consider
the physical and biological features that
are essential to the conservation of the
species and that may require special
management considerations or
protection. These include, but are not
limited to:
(1) Space for individual and
population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or
other nutritional or physiological
requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or
rearing (or development) of offspring;
and
(5) Habitats that are protected from
disturbance or are representative of the
historic, geographical, and ecological
distributions of a species.
We derive the specific PBFs required
for Astragalus jaegerianus from studies
of this species’ habitat, ecology, and life
history as described in the Critical
Habitat section of the proposed revised
rule to designate critical habitat
published in the Federal Register on
April 1, 2010 (75 FR 16404), and in the
information presented below.
Additional information can be found in
the final listing rule published in the
Federal Register on October 6, 1998 (63
FR 53596), and the previous proposed
critical habitat designation (69 FR
18018; April 6, 2004).
The revised critical habitat is
designed to provide sufficient habitat to
maintain self-sustaining populations of
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Astragalus jaegerianus throughout its
range and to provide those habitat
components essential for the
conservation of the species. We have
determined for the revised critical
habitat that A. jaegerianus requires the
following PBFs: (1) Habitat for
individual and population growth,
including sites for germination,
pollination, reproduction, pollen and
seed dispersal, and seed banks; (2) sites
for the host plants that provide
structural support for A. jaegerianus; (3)
intervening areas that allow gene flow
and provide connectivity or linkage
within segments of the larger
population; and (4) areas that provide
basic requirements for growth, such as
water, light, and minerals.
Primary Constituent Elements for
Astragalus jaegerianus
Under the Act and its implementing
regulations, we are required to identify
the PBFs essential to the conservation of
Astragalus jaegerianus in areas
occupied at the time of listing, focusing
on the features’ PCEs. We consider PCEs
to be the elements of the PBFs that are
essential to the conservation of the
species.
Based on our current knowledge of
the physical or biological features and
habitat characteristics required to
sustain the species’ life-history
processes, we determine that the PCEs
specific to Astragalus jaegerianus are:
(1) Shallow soils at elevations
between 3,100 and 4,200 feet (ft) (945 to
1,280 meters (m)) derived primarily
from Jurassic or Cretaceous granitic
bedrock, and less frequently on soils
derived from diorite or gabbroid
bedrock, or on granitic soils overlain by
scattered rhyolitic cobble, gravel, and
sand.
(2) Host shrubs at elevations between
3,100 and 4,200 ft (945 to 1,280 m). The
primary host shrubs include but are not
limited to: Thamnosma montana
(turpentine bush), Ambrosia dumosa
(burro bush), Eriogonum fasciculatum
ssp. Polifolium (California buckwheat),
Ericameria cooperi var. cooperi (golden
bush), Ephedra nevadensis (Mormon
tea), and Salazaria mexicana (paperbag
bush) that are usually found in mixeddesert-shrub communities.
With this designation of critical
habitat, we intend to identify the PBFs
essential to the conservation of the
species, through the identification of the
appropriate quantity and spatial
arrangement of the PCEs sufficient to
support the life-history processes of the
species. All units and subunits
designated as critical habitat are
currently occupied by Astragalus
jaegerianus and contain the PCEs in the
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appropriate quantity and spatial
arrangement sufficient to support the
life-history needs of the species.
Special Management Considerations or
Protections
When designating critical habitat, we
assess whether the specific areas within
the geographical area occupied by the
species at the time of listing contain the
features that are essential to the
conservation of the species and may
require special management
considerations or protection.
A detailed discussion of threats
affecting the PBFs essential to the
conservation of Astragalus jaegerianus,
and that may require special
management considerations or
protection, can be found in the previous
proposed critical habitat designation of
April 6, 2004 (69 FR 18018), and the 5year review (Service 2008, pp. 1–21). In
summary, these threats include surface
mining, unauthorized OHV recreation,
military training activities, competition
with nonnative species, and habitat
fragmentation. In addition, the Bureau
has received interest from wind energy
companies that are seeking sites for
wind energy development, although no
specific plans for the areas occupied by
Astragalus jaegerianus are currently
being considered for any energy
development projects.
The areas included in this revised
critical habitat designation will require
some level of management to address
the current and future threats to
Astragalus jaegerianus and to maintain
the PBFs essential to the conservation of
the species. In units that were occupied
at the time of listing and are currently
occupied, special management will be
needed to ensure that designated habitat
is able to provide areas for germination,
pollination, reproduction, and sites for
the host plants that provide structural
support for A. jaegerianus; intervening
areas that allow gene flow and provide
connectivity or linkage within segments
of the larger population; and areas that
provide basic requirements for growth,
such as water, light, and minerals.
There will be impacts from military
activities on Astragalus jaegerianus and
its habitat at NTC. We will not discuss
these impacts any further, because areas
where A. jaegerianus occurs on NTC are
being exempted (see Exemptions section
below). Army-owned lands in the
Paradise and Coolgardie units that are
not part of the NTC were purchased for
A. jaegerianus conservation and will not
be impacted by military activities.
The designation of critical habitat
does not imply that lands outside of
critical habitat do not play an important
role in the conservation of Astragalus
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jaegerianus. Activities with a Federal
nexus that may affect those areas
outside of critical habitat, such as
surface mining, off-highway vehicle
recreation, land transfer programs, and
military training activities, are still
subject to review under section 7 of the
Act, if they may affect A. jaegerianus.
The prohibitions of section 9 of the Act
applicable to plants also continue to
apply both inside and outside of
designated critical habitat. With respect
to plants, section 9 of the Act includes
among its prohibitions the import or
export of listed species, the removal to
possession or malicious damage or
destruction of species on areas under
Federal jurisdiction, or the removal,
damage, or destruction of species in
violation of State law (16 U.S.C.
1538(a)(2)).
Criteria Used To Identify Critical
Habitat
As required by section 4(b)(1)(A) of
the Act, we used the best scientific and
commercial data available to designate
critical habitat. We reviewed available
information pertaining to the habitat
requirements of this species. In
accordance with the Act and its
implementing regulation at 50 CFR
424.12(e), we considered whether
designating additional areas—outside
those currently occupied as well as
those occupied at the time of listing—
is necessary to ensure the conservation
of the species. We are not designating
any areas outside the geographical area
occupied by the species because
occupied areas are sufficient for the
conservation of the species.
The material we used to determine
critical habitat for Astragalus
jaegerianus included the 1998 final
listing rule (63 FR 53596; October 6,
1998), the 2004 proposed critical habitat
designation (69 FR 18018; April 6,
2004), data in reports submitted during
section 7 consultations and by biologists
holding section 10(a)(1)(A) recovery
permits, research published in peerreviewed articles and presented in
academic theses and agency reports, the
5-year review for A. jaegerianus (Service
2008, pp. 1–21), Army surveys of 2001
(Charis 2002, pp. 1–85), and regional
geographic information system (GIS)
coverages. We analyzed this information
to develop criteria for identifying areas
that contain the PCEs in the appropriate
quantity and spatial arrangement
essential to the conservation of the A.
jaegerianus that may require special
management considerations or
protection, or that are essential for the
conservation of A. jaegerianus.
Extensive surveys funded by the Army
were conducted in 2001 (Charis 2002).
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The 2001 surveys were conducted under
optimal growing conditions for the
species and contributed greatly to our
knowledge of the overall distribution
and abundance of A. jaegerianus.
We are designating all habitat
occupied by Astragalus jaegerianus
during the extensive Army surveys
conducted in 2001, other than those
lands exempted under section 4(a)(3) of
the Act (see discussion in Exemptions
section below). Because the species is
long-lived and the 2001 surveys were
conducted under optimal conditions,
we believe the survey results capture
the fullest expression of A. jaegerianus
and provide an accurate representation
of habitat occupied by the species.
Methods
As required by section 4(b) of the Act
and 50 CFR 424.12, we used the best
scientific information available in
determining which areas within the
geographic area occupied by the species
at the time of listing contain the features
essential to the conservation of
Astragalus jaegerianus, and which areas
outside the geographic area occupied at
the time of listing are essential for the
conservation of the species. We
reviewed information used to prepare
the 2004 proposed critical habitat rule
(69 FR 18018; April 6, 2004); the 5-year
review (Service 2008, pp. 1–21);
published peer-reviewed articles; data
from our files that we used for listing
the species; geologic maps (California
Geologic Survey 1953); recent biological
surveys and reports, particularly from
the Army surveys of 2001 (Charis 2002,
pp. 1–85); additional information
provided by the Army, the Bureau, and
other interested parties; and discussions
with botanical experts. We also
conducted site visits to all three known
general geographic areas that are
occupied and are considered essential to
the conservation of the species.
The long-term probability of the
survival and recovery of Astragalus
jaegerianus is dependent upon: The
protection of existing population sites;
the maintenance of ecologic functions
within these sites, including
connectivity within and between
populations in close geographic
proximity to one another (to facilitate
pollinator activity and seed dispersal
mechanisms); and keeping these areas
free of major ground-disturbing
activities. The areas we are proposing to
designate as critical habitat provide all
of the features essential for the
conservation of A. jaegerianus.
In our delineation of the proposed
critical habitat units in 2004, we
initially selected three areas to provide
for the conservation of Astragalus
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jaegerianus that comprise the four
specific population sites where it is
known to occur. As discussed under the
‘‘Current Distribution’’ section of the
April 1, 2010 proposed revised critical
habitat rule (75 FR 16404), at the time
of listing, A. jaegerianus was known to
occur from Brinkman Wash and
Montana Mine (the populations at these
two sites were subsequently determined
to be contiguous and thus are
considered one population), Paradise
Wash, and Coolgardie; due to our
understanding of the lifespan of the
species, we also conclude that the
Goldstone site was occupied at the time
of listing even though this was not
confirmed until 3 years subsequent to
listing. All four populations are
important because A. jaegerianus
exhibits life-history attributes, including
variable seed production, low
germination rates, and habitat
specificity in the form of a dependence
on a co-occurring organism (host
shrubs), that make it vulnerable to
extinction (see previous rules (69 FR
18018 and 70 FR 18220) and Gilpin and
Soule 1986, p. 33; Keith 1998, p. 1080).
We believe the 2004 proposed critical
habitat designation (69 FR 18018) is of
sufficient size to maintain landscapescale processes and to minimize the
secondary impacts resulting from
human occupancy and human activities
occurring in adjacent areas. We mapped
the units with a degree of precision
commensurate with the best available
information and the size of the unit.
Of principle importance in the
process of delineating the proposed
critical habitat units are data in a GIS
format provided by the Army, depicting
the results of Army field surveys for
Astragalus jaegerianus conducted in
2001 (Charis 2002, pp. 1–85). These data
consisted of three files depicting the
locations of transects that were surveyed
for A. jaegerianus, the locations of A.
jaegerianus individuals found during
the surveys, and minimum convex
polygons (MCP) calculated to represent
the outer bounds of A. jaegerianus
populations (Charis 2002, pp. 1–85).
For mapping proposed critical habitat
units, we proceeded through a multistep process. First, we started with the
MCPs that had been calculated by the
Army (Charis 2002, pp. 1–85) based on
the presence of documented
individuals. We then expanded these
boundaries outward from the edge of
each of the four populations by a
distance of 0.25 mi (0.4 km). We did this
to include Astragalus jaegerianus
individuals that are part of these
populations, but were not noted during
surveys. The basis for determining that
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these additional land areas are occupied
is as follows:
(1) This habitat has the appropriate
elevational range, and includes the
granitic soils and plant communities
that support host plants required by A.
jaegerianus;
(2) botanists involved in the Army
surveys stated that ‘‘the estimate of [A.
jaegerianus] distribution is a minimum’’
(SAIC 2003, pp. 1–2), and that
additional individuals of A. jaegerianus
most likely occurred on the fringes of
the MCPs (SAIC 2003, pp. 1–2);
(3) this 0.25-mi (0.4-km) distance is
commensurate in scale with the
distance between transects where
individuals were found and the distance
between individuals along one transect,
and it is well within the distance that
can be traversed by pollinators and seed
dispersers;
(4) mapping errors during the 2001
surveys indicated that the location of
individuals did not match up precisely
with the location of the transect
boundaries (Charis 2002 pp. 36–37); and
(5) limited surveys were conducted in
2003, and despite the unfavorable
climatic conditions for A. jaegerianus,
13 additional individuals were located
outside the MCPs (SAIC 2003 pp. 1–2).
Three of the four areas where new
plants were found were within the 0.25mi (0.4-km) distance around the MCPs.
We next removed areas on the
margins of the resultant polygons where
we determined, by referring to digital
raster graphic maps, the topography is
either too steep or the elevation too high
to support additional Astragalus
jaegerianus individuals. This boundary
modification involved editing the
eastern and southeastern edge of the
Coolgardie MCP and a cirque-shaped
sliver from the central portion of the
southern boundary of the BrinkmanMontana MCP.
For the Goldstone and BrinkmanMontana populations, expansion of the
MCP boundaries by 0.25 mi (0.4 km) left
a narrow corridor (about 0.125 mi- (0.2
km-) wide) between the revised
polygons. We chose to bridge the gap
between the two polygons by
incorporating the intervening habitat
that is within the geographic area
occupied by the species between the
Goldstone and Brinkman-Montana
polygons into a single critical habitat
unit, called the Goldstone-Brinkman
unit. We did this for several reasons:
The intervening habitat between the two
MCPs contains the PCEs with the
appropriate elevational range, granitic
soils, and plant communities (based on
topographic maps, geologic maps, and
aerial photos) that Astragalus
jaegerianus requires; there were no
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obvious physical barriers between the
two MCPs; the distance between the two
closest A. jaegerianus individuals across
the gap of the two MCPs was smaller
than the distance between individuals
within the MCPs; and the distance
between the two MCPs was small
enough that it could be easily traversed
by a pollinator with a potential flight
distance of 0.6 mi (1 km), or a seed
disperser such as certain small
mammals and birds. Granitic soil and
the plant community in the intervening
area between the two polygons also
provide habitat for the pollinators that
visit A. jaegerianus flowers, as well as
habitat for seed dispersers (birds, small
mammals, and large insects) that carry
seed between the coppices of suitable
host shrubs, and the area functions as
long-term storage for the soil seedbank
of A. jaegerianus.
Finally, the boundaries of the critical
habitat units were modified slightly in
the process of creating the legal
descriptions of the critical habitat units.
This process consisted of overlaying the
critical habitat units with grid lines
spaced at 100-m intervals; the grid lines
following the Universal Transverse
Mercator (UTM) coordinate system ties
to the North American Datum of 1927.
Vertices defining the critical habitat
boundary polygon were then moved to
the closest vertex on the 100-m UTM
grid lying inside of the critical habitat
boundary. Vertices not necessary to
define the shape of the boundary
polygon were deleted. Changing the
boundaries in this fashion serves two
purposes: (1) It creates a list of
coordinates that is easier for the public
to use when looking at USGS 7.5-minute
topographic maps, and (2) it minimizes
the number of coordinates necessary to
define the shapes of the critical habitat
units.
When determining critical habitat
boundaries within this final rule, we
made every effort to avoid including
developed areas such as lands covered
by buildings, pavement, and other
structures because such lands lack PBFs
for Astragalus jaegerianus. The scale of
the maps we prepared under the
parameters for publication within the
Code of Federal Regulations may not
reflect the exclusion of such developed
lands. In addition, old mining sites,
where the soil profile and topography
have been altered such that no native
vegetation can grow, also do not and
likey will not contain any of the PBFs
for A. jaegerianus in the future. Any
such lands inadvertently left inside
critical habitat boundaries shown on the
maps of this final rule have been
excluded by text in the rule and are not
designated as critical habitat. Therefore,
a Federal action involving these lands
will not trigger section 7 consultation
with respect to critical habitat and the
requirement of no adverse modification
unless the specific action would affect
the PBFs in the adjacent critical habitat.
For the proposed revised critical
habitat designation of April 1, 2010 (75
FR 16404), we made no changes to the
boundaries of the critical habitat units
that were proposed in 2004 (69 FR
18018), other than to exempt DOD lands
on Fort Irwin that are included in the
INRMP (see Exemptions section below).
Other changes between the previous
2004 proposed critical habitat
designation and the 2010 proposed
revised critical habitat designation
address changes and corrections in the
acreage attributed to various
landowners; these changes are detailed
in the Summary of Changes From the
Proposed Revised Rule and Previous
Critical Habitat Designation section
above.
We are designating as critical habitat
lands that we have determined are
occupied at the time of listing and
contain sufficient PBFs to support lifehistory processes essential for the
conservation of Astragalus jaegerianus
and for which special management may
be required.
Two units are being designated based
on sufficient elements of PBFs being
present to support Astragalus
jaegerianus life processes. Both units
contain all of the identified elements of
PBFs and support multiple life
processes; the Paradise Unit supports a
portion of the Paradise population, and
the Coolgardie Unit supports all of the
Coolgardie population.
Final Revised Critical Habitat
Designation
We are designating two units as
critical habitat for Astragalus
jaegerianus. The critical habitat areas
described below constitute our best
assessment at this time of areas that
meet the definition of critical habitat.
Those two units are: (1) Paradise, and
(2) Coolgardie. Table 2 shows the land
ownership and approximate area of each
critical habitat unit. Both units are
within an area that is north of the town
of Barstow in the Mojave Desert in San
Bernardino County, California, were
occupied at the time of listing, are
currently occupied, and contain the
PCEs that sustain A. jaegerianus. We are
exempting the previously proposed
Goldstone-Brinkman unit and a large
portion of the previously proposed
Paradise unit (from the 2004 proposed
critical habitat rule (69 FR 18018))
because NTC now has a Serviceapproved INRMP that benefits the
species. Please see discussion in
Exemptions section below for a
description of the importance of these
exempted areas to A. jaegerianus.
TABLE 2—DESIGNATED CRITICAL HABITAT UNITS FOR ASTRAGALUS JAEGERIANUS
[Areas estimates reflect all land within critical habitat unit boundaries.]
Unit name
Army lands
(Federal)
Bureau of Land
Management
(Federal)
State lands
Private lands
Totals
Paradise .....................
Coolgardie ..................
Totals ..................
318 ac (129 ha) ........
964 ac (390 ha) ........
1,282 ac (519 ha) .....
409 ac (166 ha) ........
9,479 ac (3,836 ha) ..
9,888 ac (4,002 ha) ..
0 ac (0 ha) ................
0 ac (0 ha) ................
0 ac (0 ha) ................
237 ac (96 ha) ..........
2,662 ac (1,077 ha) ..
2,899 ac (1,173 ha) ..
964 ac (390 ha).
13,105 ac (5,303 ha).
14,069 ac (5,693 ha).
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Note: Approximate acres have been converted to hectares (1 ac = 0.4047 ha). Fractions of acres and hectares have been rounded to the
nearest whole number. Totals are sums of units. Area sizes may not sum due to rounding.
We present brief descriptions of both
units, and reasons why they meet the
definition of critical habitat for
Astragalus jaegerianus below.
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Paradise Unit
The Paradise unit consists of
approximately 7,032 ac (2,846 ha). We
are designating critical habitat for
Astragalus jaegerianus on 964 ac (390
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ha). Of this, 318 ac (129 ha) is Armyowned land adjacent to the NTC (off
Fort Irwin), 237 ac (96 ha) is privately
owned land located adjacent to the
NTC, and approximately 409 ac (166 ha)
is on adjacent Federal lands managed by
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the Bureau. The remaining 6,068 acres
(2,456 ha) within this unit are on Army
lands at NTC subject to the INRMP and
have been exempted under section
4(a)(3) of the Act (see Exemptions
section below).
As part of the plan amendments to the
CDCA, the Bureau in 2005 designated
an area of approximately 1,000 ac (405
ha) as part of the West Paradise Valley
Conservation Area. It generally overlaps
with the 964 ac (390 ha) in this
designation of critical habitat. The
boundary of the West Paradise Valley
Conservation Area encompasses some
Army lands not on NTC and some
private inholdings. This unit contains
the PBFs essential to the conservation of
the species. The unit supports a portion
of the Paradise population which is one
of the four populations of Astragalus
jaegerianus. In 2001, approximately
1,667 individuals were observed in this
population. The land within this unit
supports the granitic soils (PCE 1) and
host shrubs (PCE 2) that are necessary
for the growth, reproduction, and
establishment of A. jaegerianus
individuals. These granitic soils and
host shrubs also provide habitat for (1)
the pollinators that visit A. jaegerianus
flowers that result in the production of
seed; (2) seed dispersers (birds, small
mammals, and large insects) that carry
seed between the coppices of suitable
host shrubs; and (3) sites for long-term
storage for seedbank of A. jaegerianus.
The Paradise unit may require special
management considerations or
protection due to the threats to the
species and its habitat posed by:
Invasions of nonnative plants such as
Sahara mustard (Brassica tournefortii)
and other plant species that may take
over habitat for the species; habitat
fragmentation that detrimentally affects
plant-host plant and plant-pollinator
interactions (i.e., composition and
structure of the desert scrub
community), leading to a decline in
species reproduction and increasing
susceptibility to nonnative plant
invasion; and vehicles that cause direct
and indirect impacts, such as excessive
dust, to the plant. Habitat for Astragalus
jaegerianus in the Paradise unit has
been fragmented to a minor extent. We
anticipate that, in the future, habitat
fragmentation may increase,
composition and structure of the plant
community may be altered by the
spread of nonnative plants, and direct
and indirect effects of dust may
increase. All of these threats would
render the habitat less suitable for A.
jaegerianus, and special management
may be needed to address them.
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Coolgardie Unit
The Coolgardie unit consists of
approximately 13,105 ac (5,303 ha),
primarily on Federal lands managed by
the Bureau. The designated Coolgardie
critical habitat unit overlaps to a great
extent with the Bureau’s Coolgardie
Mesa Conservation Area (CMCA). Of
this acreage, approximately 9,479 ac
(3,836 ha) are managed by the Bureau,
and approximately 964 ac (390 ha) were
formerly in private ownership, but have
been acquired by the Army since 2005
for the purposes of conservation of
Astragalus jaegerianus. These lands are
not contiguous with the NTC and are
not covered under the Army’s INRMP.
Parcels of private land are scattered
throughout this unit and total
approximately 2,662 ac (1,077 ha). Some
of these parcels may be acquired by the
Bureau and added to the CMCA. This
unit supports one of only four
populations of A. jaegerianus. In 2001,
surveyors observed 2,014 plants in this
population.
The land within this unit contains the
PBFs essential to the conservation of the
species and supports the granitic soils
(PCE 1) and host shrubs (PCE 2) that are
necessary for the growth, reproduction,
and establishment of Astragalus
jaegerianus individuals. It should be
noted that the proposed critical habitat
does not include the ‘‘donut hole’’ in the
center of the unit, where granitic soils
are absent. Within the proposed unit,
the granitic soils and host shrubs: (1)
Provide habitat for the pollinators that
visit A. jaegerianus flowers and result in
the production of seed; (2) provide
habitat for seed dispersers (birds, small
mammals, and large insects) that carry
seed between the coppices of suitable
host shrubs; and (3) provide for longterm seedbank storage for A.
jaegerianus.
The Coolgardie unit may require
special management considerations or
protection due to the threats to the
species and its habitat posed by:
Invasions of nonnative plants such as
Sahara mustard (Brassica tournefortii)
and other plant species that may take
over habitat for the species; habitat
fragmentation that detrimentally affects
plant-host plant and plant-pollinator
interactions (composition and structure
of the desert scrub community), leading
to a decline in species reproduction and
increasing susceptibility to nonnative
plant invasion; vehicles that cause
direct and indirect impacts, such as
excessive dust, to the plant; and limited
mining activities that can lead to
changes in habitat conditions (e.g.,
decreases in plant cover, and increases
in nonnative species). Habitat for
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Astragalus jaegerianus in the Coolgardie
unit has been fragmented to a moderate
extent from current and historical
mining and from off-road vehicle use,
and non-native species have been
introduced into the area. We anticipate
that in the future, habitat fragmentation
may increase, and composition and
structure of the plant community may
be altered by the continued spread of
nonnative plants. Due to increased
recreational pressure, off-road vehicle
use has increased in the past 4 years. All
of these threats would render the habitat
less suitable for A. jaegerianus, and
special management may be needed to
address them.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires
Federal agencies, including the Service,
to ensure that actions they fund,
authorize, or carry out is not likely to
jeopardize the continued existence of
any endangered species or threatened
species or result in the destruction or
adverse modification of designated
critical habitat of such species. In
addition, section 7(a)(4) of the Act
requires Federal agencies to confer with
the Service on any agency action that is
likely to jeopardize the continued
existence of any species proposed to be
listed under the Act or result in the
destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit
Court of Appeals have invalidated our
regulatory definition of ‘‘destruction or
adverse modification’’ (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F.3d 1059
(9th Cir. 2004) and Sierra Club v. U.S.
Fish and Wildlife Service et al., 245 F.3d
434, 442F (5th Cir. 2001)), and we do
not rely on this regulatory definition
when analyzing whether an action is
likely to destroy or adversely modify
critical habitat. Under the statutory
provisions of the Act, we determine
destruction or adverse modification on
the basis of whether, with
implementation of the proposed Federal
action, the affected critical habitat
would continue to serve its intended
conservation role for the species.
If a Federal action may affect a listed
species or its critical habitat, the
responsible Federal agency (action
agency) must enter into consultation
with us. Examples of actions that are
subject to the section 7 consultation
process are actions on State, Tribal,
local, or private lands that require a
Federal permit (such as a permit from
the U.S. Army Corps of Engineers under
section 404 of the Clean Water Act (33
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U.S.C. 1251 et seq.) or a permit from the
Service under section 10 of the Act) or
that involve some other Federal action
(such as funding from the Federal
Highway Administration, Federal
Aviation Administration, or the Federal
Emergency Management Agency).
Federal actions not affecting listed
species or critical habitat, and actions
on State, Tribal, local, or private lands
that are not federally funded or
authorized, do not require section 7
consultation.
As a result of section 7 consultation,
we document compliance with the
requirements of section 7(a)(2) of the
Act through our issuance of:
(1) A concurrence letter for Federal
actions that may affect, but are not
likely to adversely affect, listed species
or critical habitat; or
(2) A biological opinion for Federal
actions that may affect, and are likely to
adversely affect, listed species or critical
habitat.
When we issue a biological opinion
concluding that a project is likely to
jeopardize the continued existence of a
listed species and/or destroy or
adversely modify critical habitat, we
provide reasonable and prudent
alternatives to the project, if any are
identifiable, that would avoid the
likelihood of jeopardy and/or
destruction or adverse modification of
critical habitat. We define ‘‘reasonable
and prudent alternatives’’ (at 50 CFR
402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner
consistent with the intended purpose of
the action,
(2) Can be implemented consistent
with the scope of the Federal agency’s
legal authority and jurisdiction,
(3) Are economically and
technologically feasible, and
(4) Would, in the Director’s opinion,
avoid the likelihood of jeopardizing the
continued existence of the listed species
and/or avoid the likelihood of
destroying or adversely modifying
critical habitat.
Reasonable and prudent alternatives
can vary from slight project
modifications to extensive redesign or
relocation of the project. Costs
associated with implementing a
reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require
Federal agencies to reinitiate
consultation on previously reviewed
actions in instances where we have
listed a new species or subsequently
designated critical habitat that may be
affected and the Federal agency has
retained discretionary involvement or
control over the action (or the agency’s
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discretionary involvement or control is
authorized by law). Consequently,
Federal agencies may sometimes need to
request reinitiation of consultation with
us on actions for which formal
consultation has been completed, if
those actions with discretionary
involvement or control may affect
subsequently listed species or
designated critical habitat.
Application of the ‘‘Adverse
Modification’’ Standard
The key factor related to the adverse
modification determination is whether,
with implementation of the proposed
Federal action, the affected critical
habitat would continue to serve its
intended conservation role for the
species. Activities that may destroy or
adversely modify critical habitat are
those that alter the PBFs to an extent
that appreciably reduces the
conservation value of critical habitat for
Astragalus jaegerianus. As discussed
above, the role of critical habitat is to
support life-history needs of the species
and provide for the conservation of the
species.
Section 4(b)(8) of the Act requires us
to briefly evaluate and describe, in any
proposed or final regulation that
designates critical habitat, activities
involving a Federal action that may
destroy or adversely modify such
habitat, or that may be affected by such
designation.
Examples of activities that, when
authorized, funded, or carried out by a
Federal agency, may affect critical
habitat and therefore should result in
consultation for Astragalus jaegerianus
include, but are not limited to:
(1) Activities that would disturb the
upper layers of soil, including
disturbance of the soil crust, soil
compaction, soil displacement, and soil
destabilization. These activities include,
but are not limited to, military-related
and construction activities of the Army
on its lands or lands under its
jurisdiction not covered by an INRMP;
activities of the Bureau on its lands or
lands under its jurisdiction, including
livestock grazing, fire management, and
recreational use; and habitat restoration
projects on private lands receiving
funding from Federal agencies, such as
from the Natural Resources
Conservation Service (NRCS), that
would include mechanical disturbance
such as would occur with tracked
vehicles, heavy-wheeled vehicles,
vehicles used in restoration projects
(e.g., rippers or discers), off-highway
vehicles (including motorcycles), and
mining activities, such as ‘‘club mining’’
with drywashers and sluices. These
activities could alter soil conditions in
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29121
ways that would affect the germination
of seed, the growth of individual plants,
and successful reproduction, and result
in direct or cumulative adverse effects
to these individuals and their life
cycles.
(2) Activities that appreciably degrade
or destroy the native desert scrub
communities that support host shrubs,
including but not limited to militaryrelated and construction activities of the
Army on its lands or lands under its
jurisdiction not covered by an INRMP;
activities of the Bureau on its lands or
lands under its jurisdiction, including
livestock grazing, fire management, and
recreational use; and habitat restoration
projects on private lands receiving
funding from Federal agencies, such as
from the NRCS that would include
mechanical disturbance such as would
occur with tracked vehicles, heavywheeled vehicles, vehicles used in
restoration projects (e.g., rippers or
discers), off-highway vehicles
(including motorcycles), and mining
activities such as ‘‘club mining’’ with
drywashers and sluices. These activities
could alter the plant communities,
particularly the host shrubs and habitat
for pollinators, in ways that would
affect the germination of seed, the
growth of individual plants, and
successful reproduction, and result in
direct or cumulative adverse effects to
these individuals and their life cycles.
(3) Activities that would appreciably
degrade the normal metabolic processes
in individual plants through aerial
application of chemical compounds,
such as the application or runoff of
chemical or biological agents into the
air, onto the soil, or onto native
vegetation, including substances such as
pesticides, herbicides, fertilizers,
tackifiers, obscurants, and chemical fire
retardants used by the Bureau, the
Army, NRCS, and the Animal and Plant
Health Inspection Service, in the control
of nonnative plant and animal species,
firefighting, military training activities,
and restoration activities. These
activities could interfere with normal
plant metabolic processes such as gas
exchange in leaf tissues, and water and
mineral uptake in root tissues. In
addition, aerial spraying can affect
reproduction through a reduction in
successful pollen transfer; pollinator
availability may also be affected, which,
could in turn affect seed set.
As discussed previously in the
revised proposed rule (75 FR 16404), we
completed consultation with both the
Army and the Bureau on activities that
were being proposed on their lands. We
consulted with the Army on its
proposed addition of training lands on
the NTC (Charis 2003; Service 2005); see
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discussion below under ‘‘Approved
INRMPs’’. We also consulted with the
Bureau as the lead Federal agency on
the plan amendments to the CDCA plan
(Bureau 2005; Service 2005); for a
complete discussion of actions and
conservation measures undertaken
through this consultation, please refer to
the revised proposed critical habitat
designation (75 FR 16404).
Where Federally listed wildlife
species occur on private lands proposed
for development, any habitat
conservation plans submitted by the
applicant to secure an incidental take
permit, under section 10(a)(1)(B) of the
Act, would be subject to the section 7
consultation process. The SuperiorCronese Critical Habitat Unit for the
desert tortoise (Gopherus agassizii), a
species that is listed as threatened under
the Act, overlaps with the distribution
of Astragalus jaegerianus in a portion of
the Paradise population of the species.
We anticipate that most of the activities
occurring on private lands within the
range of A. jaegerianus will eventually
be included under the umbrella of the
HCP to be prepared by the County of
San Bernardino. However, there may be
activities proposed for private lands that
either need to be completed prior to the
approval of the HCP, or there may be a
proposed activity that is not covered by
the HCP and, therefore, may require a
separate habitat conservation plan.
Exemptions
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Application of Section 4(a)(3) of the Act
The Sikes Act Improvement
Amendment of 1997 (Sikes Act) (16
U.S.C. 670a) required each military
installation that includes land and water
suitable for the conservation and
management of natural resources to
complete an INRMP by November 17,
2001. An INRMP integrates
implementation of the military mission
of the installation with stewardship of
the natural resources found on the base.
Each INRMP includes:
(1) An assessment of the ecological
needs on the installation, including the
need to provide for the conservation of
listed species;
(2) A statement of goals and priorities;
(3) A detailed description of
management actions to be implemented
to provide for these ecological needs;
and
(4) A monitoring and adaptive
management plan.
Among other things, each INRMP
must, to the extent appropriate and
applicable, provide for fish and wildlife
management; fish and wildlife habitat
enhancement or modification; wetland
protection, enhancement, and
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restoration where necessary to support
fish and wildlife; and enforcement of
applicable natural resource laws.
The National Defense Authorization
Act for Fiscal Year 2004 (Pub. L. 108–
136) amended the Act to limit areas
eligible for designation as critical
habitat. Specifically, section 4(a)(3)(B)(i)
of the Act (16 U.S.C. 1533(a)(3)(B)(i))
now provides: ‘‘The Secretary shall not
designate as critical habitat any lands or
other geographical areas owned or
controlled by the Department of
Defense, or designated for its use, that
are subject to an integrated natural
resources management plan prepared
under section 101 of the Sikes Act (16
U.S.C. 670a), if the Secretary determines
in writing that such plan provides a
benefit to the species for which critical
habitat is proposed for designation.’’
We consult with the military on the
development and implementation of
INRMPs for installations with listed
species. We analyzed INRMPs
developed by military installations
located within the range of the critical
habitat designation for Astragalus
jaegerianus to determine if they are
exempt under section 4(a)(3) of the Act.
The following areas are DOD lands with
completed, Service-approved INRMPs
within the revised critical habitat
designation.
Approved INRMPs
Army lands within the boundaries of
the NTC at Fort Irwin are subject to an
INRMP for 2006–2011 (NTC 2005),
which includes management guidelines
in place that provide a benefit for
Astragalus jaegerianus. As part of the
Army’s consultation on the proposed
expansion of training lands at NTC
(Service 2005), the Army established the
4,300-ac (1,740-ha) East Paradise
Conservation Area on NTC. This area
contains approximately 80 percent of
the East Paradise population of A.
jaegerianus. The Army established the
3,700-ac (1497-ha) Brinkman Wash
Restricted Access Area (no-dig zone) on
NTC. This area contains 1,872 ac (758
ha) of A. jaegerianus habitat and
approximately 51 percent of the
Montana Mine population of A.
jaegerianus. The Army also maintains
the 2,471-ac (1,000-ha) Goldstone
Conservation Area. The Army’s INRMP
management guidelines provide a
benefit to A. jaegerianus through the
following measures: the Army will
prohibit off-road activity; they will
reduce threats to A. jaegerianus caused
by dust through the application of soil
binders. They will also collect and store
site-specific seed from host plants to
restore closed routes and other
disturbed areas within A. jaegerianus
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habitat. Contingent on funds, the Army
will perform intensive nonnative
species control and eradication efforts at
conservation areas, if such species are
found there. We will continue to
monitor the status of the INRMP to
ensure that it adequately addresses
management guidelines for A.
jaegerianus.
In the April 6, 2004, proposed critical
habitat designation (69 FR 18018), the
Army had not yet completed its INRMP
and, therefore, was not exempted under
section 4(a)(3)(B) of the Act. However,
the Army was excluded under section
4(b)(2) of the Act for reasons of national
security and because existing
management plans provided a benefit to
Astragalus jaegerianus. The Army’s
INRMP was approved in 2006, and
includes management actions that the
Secretary has determined benefit A.
jaegerianus. With our current
exemption of all areas within the
Army’s NTC (see ‘‘Relationships to
Sections 4(a)(3) of the Act’’ section), the
entire 10,394-ac (4,206-ha) GoldstoneBrinkman unit has been exempted from
revised critical habitat designation.
Similarly, almost all (6,068 ac (2,456 ha)
of 7,032 ac (2,846 ha)) of the Paradise
Unit on NTC has been exempted from
designation as revised critical habitat.
Army lands outside the NTC are not
subject to the INRMP and, therefore, not
exempted. The 2006 INRMP is due to be
revised in 2011; the Army is currently
reviewing the draft INRMP for 2011–
2016. It contains all the same measures
for A. jaegerianus as the existing INRMP
(Everly 2011 in litt.).
Based on the above considerations,
and in accordance with section
4(a)(3)(B)(i) of the Act, we have
determined that the identified lands are
subject to the NTC at Fort Irwin INRMP,
and that conservation efforts identified
in the INRMP will provide a benefit to
Astragalus jaegerianus occurring in
habitats within, or adjacent to, the NTC
at Fort Irwin INRMP. Therefore, lands
within this installation are exempt from
critical habitat designation under
section 4(a)(3) of the Act.
Approximately 16,462 ac (6,662 ha) of
A. jaegerianus habitat are not included
in this revised critical habitat
designation because of this exemption.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that
the Secretary shall designate and make
revisions to critical habitat on the basis
of the best available scientific data after
taking into consideration the economic
impact, national security impact, and
any other relevant impact of specifying
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any particular area as critical habitat.
The Secretary may exclude an 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. In making that determination,
the statute on its face, as well as the
legislative history, are clear that the
Secretary has broad discretion regarding
which factor(s) to use and how much
weight to give to any factor.
Under section 4(b)(2) of the Act, the
Secretary may exclude an area from
designated critical habitat based on
economic impacts, impacts on national
security, or any other relevant impacts.
In considering whether to exclude a
particular area from the designation, we
must identify the benefits of including
the area in the designation, identify the
benefits of excluding the area from the
designation, and determine whether the
benefits of exclusion outweigh the
benefits of inclusion. If the analysis
indicates that the benefits of exclusion
outweigh the benefits of inclusion, the
Secretary may exercise his discretion to
exclude the area only if such exclusion
would not result in the extinction of the
species.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we
consider the economic impacts of
specifying any particular area as critical
habitat. In order to consider economic
impacts, we prepared a draft economic
analysis of the proposed critical habitat
designation and related factors
(Industrial Economics Incorporated
(IEC) 2010, pp. 1–44). The draft
analysis, dated September 30, 2010, was
made available for public review on
November 3, 2010, and the comment
period for the draft analysis and
proposed revised designation of critical
habitat was opened for an additional 30
days, extending through December 3,
2010 (75 FR 67676). Following the close
of the comment period, a final analysis
(dated March 1, 2011) of the potential
economic effects of the designation was
developed taking into consideration the
public comments and any new
information (IEC 2011).
The intent of the final economic
analysis (FEA) is to quantify the
economic impacts of all potential
conservation efforts for Astragalus
jaegerianus; some of these costs will
likely be incurred regardless of whether
we designate critical habitat (baseline).
The economic impact of the final
critical habitat designation is analyzed
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by comparing scenarios both ‘‘with
critical habitat’’ and ‘‘without critical
habitat.’’ The ‘‘without critical habitat’’
scenario represents the baseline for the
analysis, considering protections
already in place for the species (e.g.,
under the Federal listing and other
Federal, State, and local regulations).
The baseline, therefore, represents the
costs incurred regardless of whether
critical habitat is designated. The ‘‘with
critical habitat’’ scenario describes the
incremental impacts associated
specifically with the designation of
critical habitat for the species. The
incremental conservation efforts and
associated impacts are those not
expected to occur absent the designation
of critical habitat for the species. In
other words, the incremental costs are
those attributable solely to the
designation of critical habitat above and
beyond the baseline costs; these are the
costs we consider in the final
designation of critical habitat.
Conservation measures implemented
under the baseline (without critical
habitat) scenario are described
qualitatively within the FEA, but
economic impacts associated with these
measures are not quantified. Economic
impacts are only quantified for
conservation measures implemented
specifically due to the designation of
critical habitat (i.e., incremental
impacts).
The FEA also addresses how potential
economic impacts are likely to be
distributed, including an assessment of
any local or regional impacts of habitat
conservation and the potential effects of
conservation activities on government
agencies, private businesses, and
individuals. The FEA measures lost
economic efficiency associated with
residential and commercial
development and public projects and
activities, such as economic impacts on
water management and transportation
projects, Federal lands, small entities,
and the energy industry. Decisionmakers can use this information to
assess whether the effects of the
designation might unduly burden a
particular group or economic sector.
Finally, the FEA looks qualitatively at
costs that have been incurred since 1998
(year of the species’ listing) (63 FR
53596), and considers those costs that
may occur in the 20 years following the
designation of critical habitat, which
was determined to be the appropriate
period for analysis because limited
planning information was available for
most activities to forecast activity levels
for projects beyond a 20-year timeframe.
The FEA quantifies incremental
economic impacts of Astragalus
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jaegerianus conservation efforts
associated with the following categories
of activity: recreational OHV use,
recreational surface mining, and wind
energy development. It also assessed
possible indirect impacts to economic
activities as the result of possible
applications of the CEQA, and
regulatory uncertainty or delay
associated with consultations with the
Service.
The FEA estimates that no economic
impacts from additional conservation
measures are likely to result from the
designation of critical habitat. The main
reason for this conclusion is that
approximately 79 percent of the
designated critical habitat is Federal
land that is either being managed for
Astragalus jaegerianus conservation by
the Bureau under the guidance of the
California Desert Conservation Area
Plan, as modified by the West Mojave
Plan, or is being held by the DOD.
Because the DOD acquired these lands
as mitigation for the expansion of Fort
Irwin, it will not permit any grounddisturbing activities on them.
Ultimately, the DOD will transfer the
lands to the Bureau, and the Bureau will
manage them as part of the Coolgardie
Mesa and West Paradise Areas of
Critical Environmental Concern. The
Service, DOD, and the Bureau do
anticipate section 7 consultation on the
land transfer, but expect that the
consultation will be informal and not
require a formal biological opinion
under section 7 of the Act. An
additional reason that no economic
impacts are likely to result from the
designation of critical habitat is that the
private lands (remaining 21 percent of
designation interspersed in a
checkerboard fashion among the Bureau
ACECs lands) occur in a remote region
where access, development, and
construction are limited. Also land-use
activities specifically within ACECs are
limited. These private lands are being
targeted through the WMP for
acquisition by Federal agencies from
willing sellers to eventually become part
of one of the two ACECs. No section 7
consultations have occurred regarding
activities on private lands within the
area since the listing of the desert
tortoise in 1990. The federally
threatened desert tortoise occurs
throughout the area that we have
proposed as critical habitat; critical
habitat for the desert tortoise also
completely overlaps the areas
designated as revised critical habitat for
A. jaegerianus. Consequently, based on
discussions with land managers and the
lack of consultations on private lands in
this area since the listing of the desert
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tortoise, we do not anticipate any land
use changes that will result in future
consultations.
Our economic analysis identified that
there could be ‘‘insignificant additional
administrative costs to conduct the
adverse modification analysis for those
projects with a Federal nexus’’; no
attempt was made to quantify the
administrative costs associated with this
designation. As a result, there are no
disproportionate costs that are likely to
result from the designation.
Consequently, the Secretary has
determined not to exert his discretion to
exclude any areas from this designation
of critical habitat for Astragalus
jaegerianus based on economic impacts.
A copy of the FEA with supporting
documents may be obtained by
contacting the Ventura Fish and
Wildlife Office (see ADDRESSES) or by
downloading from the Internet at
https://www.regulations.gov.
determined that there are lands within
the designation of critical habitat for
Astragalus jaegerianus that are owned
by the DOD. These lands were acquired
as mitigation for the expansion of Fort
Irwin, and the DOD will not permit any
ground-disturbing activities on them.
Ultimately, the DOD will transfer the
lands to the Bureau, and the Bureau will
manage them as part of the Coolgardie
Mesa and West Paradise ACEC. The
Service, DOD, and the Bureau anticipate
consultation on the land transfer, but
expect that the consultation would be
informal and not require a formal
biological opinion under section 7 of the
Act. No military operations or training
for national security occurs on these
lands. Consequently, the Secretary has
determined not to exert his discretion to
exclude any areas from this final
designation based on impacts on
national security.
Exclusions Based on National Security
Impacts
Under section 4(b)(2) of the Act, we
consider whether there are lands owned
or managed by the DOD where a
national security impact might exist. In
preparing this final rule, we have
Exclusions Based on Other Relevant
Impacts
Under section 4(b)(2) of the Act, we
consider any other relevant impacts, in
addition to economic impacts and
impacts on national security. We
consider a number of factors, including
whether the landowners have developed
any HCPs or other management plans
for the area, or whether there are
conservation partnerships that would be
encouraged by designation of, or
exclusion from, critical habitat. In
addition, we look at any Tribal issues,
and consider the government-togovernment relationship of the United
States with Tribal entities. We also
consider any social impacts that might
occur because of the designation.
In preparing this final rule, we have
determined that there are currently no
HCPs or other management plans for
Astragalus jaegerianus, and the final
designation does not include any Tribal
lands or trust resources. We anticipate
no impact on Tribal lands, partnerships,
or HCPs from this critical habitat
designation. Accordingly, the Secretary
has determined not to exert his
discretion to exclude any areas from this
final designation based on other
relevant impacts.
Table 3 below provides approximate
areas (ac, ha) of lands that meet the
definition of critical habitat but are
exempt from designation under section
4(a)(3) of the Act. Table 3 also provides
our reasons for the exemption.
TABLE 3—EXEMPTIONS FROM THE CRITICAL HABITAT DESIGNATION FOR Astragalus jaegerianus BY CRITICAL HABITAT
UNIT
Unit
Basis for
exclusion/exemption
Specific area
GoldstoneBrinkman.
Paradise ................
Total ...............
National Training Center,
Fort Irwin Integrated Natural Resources Management Plan.
National Training Center,
Fort Irwin Integrated Natural Resources Management Plan.
..............................................
Areas meeting the definition
of critical habitat in acres
(hectares)
Areas exempted in acres
(hectares)
Exemption under section
4(a)(3) of the Act.
10,394 ac (4,206 ha) ...........
10,394 ac (4,206 ha) exempted due to INRMP* on
NTC** lands.
Exemption under section
4(a)(3) of the Act.
6,068 ac (2,456 ha) .............
6,068 ac (2,456 ha) exempted due to INRMP on NTC
lands.
..............................................
16,462 ac (2,456 ha) ...........
16,462 ac (2,456 ha).
*INRMP = Integrated Natural Resources Management Plan.
**NTC = National Training Center.
Required Determinations
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Regulatory Planning and Review—
Executive Order 12866
The Office of Management and Budget
(OMB) has determined that this rule is
not significant and has not reviewed
this rule under Executive Order 12866
(Regulatory Planning and Review). OMB
bases its determination upon the
following criteria:
(1) Whether the rule will have an
annual effect of $100 million or more on
the economy or adversely affect an
economic sector, productivity, jobs, the
environment, or other units of the
government.
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(2) Whether the rule will create
inconsistencies with other Federal
agencies’ actions.
(3) Whether the rule will materially
affect entitlements, grants, user fees,
loan programs, or the rights and
obligations of their recipients.
(4) Whether the rule raises novel legal
or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act
(RFA; 5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory
Enforcement Fairness Act (SBREFA) of
1996 (5 U.S.C 801 et seq.), whenever an
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agency must publish a notice of
rulemaking for any proposed or final
rule, it must prepare and make available
for public comment a regulatory
flexibility analysis that describes the
effects of the rule on small entities
(small businesses, small organizations,
and small government jurisdictions).
However, no regulatory flexibility
analysis is required if the head of the
agency certifies the rule will not have a
significant economic impact on a
substantial number of small entities.
The SBREFA amended the RFA to
require Federal agencies to provide a
certification statement of the factual
basis for certifying that a rule will not
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Federal Register / Vol. 76, No. 97 / Thursday, May 19, 2011 / Rules and Regulations
have a significant economic impact on
a substantial number of small entities.
In this final rule, we are certifying that
the critical habitat designation for
Astragalus jaegerianus will not have a
significant economic impact on a
substantial number of small entities.
The following discussion explains our
rationale.
According to the Small Business
Administration, small entities include
small organizations, such as
independent nonprofit organizations,
small governmental jurisdictions,
including school boards and city and
town governments that serve fewer than
50,000 residents, as well as small
businesses (13 CFR 121.201). Small
businesses include manufacturing and
mining concerns with fewer than 500
employees, wholesale trade entities
with fewer than 100 employees, retail
and service businesses with less than $5
million in annual sales, general and
heavy construction businesses with less
than $27.5 million in annual business,
special trade contractors doing less than
$11.5 million in annual business, and
agricultural businesses with annual
sales less than $750,000. To determine
if potential economic impacts on these
small entities are significant, we
consider the types of activities that
might trigger regulatory impacts under
this rule, as well as the types of project
modifications that may result. In
general, the term ‘‘significant economic
impact’’ is meant to apply to a typical
small business firm’s business
operations.
To determine if the rule could
significantly affect a substantial number
of small entities, we consider the
number of small entities affected within
particular types of economic activities
(e.g., recreational OHV use and
recreational mining). We apply the
‘‘substantial number’’ test individually
to each industry to determine if
certification is appropriate. However,
the SBREFA does not explicitly define
‘‘substantial number’’ or ‘‘significant
economic impact.’’ Consequently, to
assess whether a ‘‘substantial number’’
of small entities is affected by this
designation, this analysis considers the
relative number of small entities likely
to be impacted in an area. In some
circumstances, especially with critical
habitat designations of limited extent,
we may aggregate across all industries
and consider whether the total number
of small entities affected is substantial.
In estimating the number of small
entities potentially affected, we also
consider whether their activities have
any Federal involvement.
Designation of critical habitat only
affects activities authorized, funded, or
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carried out by Federal agencies. Some
kinds of activities are unlikely to have
any Federal involvement and so will not
be affected by critical habitat
designation. In areas where the species
is present, Federal agencies already are
required to consult with us under
section 7 of the Act on activities they
authorize, fund, or carry out that may
affect Astragalus jaegerianus. Federal
agencies also must consult with us if
their activities may affect critical
habitat. Designation of critical habitat,
therefore, could result in an additional
economic impact on small entities due
to the requirement to reinitiate
consultation for ongoing Federal
activities (see Application of the
‘‘Adverse Modification Standard’’
section).
In our final economic analysis of the
critical habitat designation, we
evaluated the potential economic effects
on small business entities resulting from
conservation actions related to the
listing of Astragalus jaegerianus and the
designation of critical habitat. The
analysis is based on the estimated
impacts associated with the rulemaking
as described in Section 3.5 of the
analysis and evaluates the potential for
economic impacts related to: (1)
Recreational OHV use; (2) recreational
surface mining; and (3) wind energy
development. In this case, the analysis
discusses that, because there are no
incremental impacts resulting from the
critical habitat designation, there are no
impacts on small entities.
In summary, we considered whether
this designation would result in a
significant economic effect on a
substantial number of small entities.
Based on the above reasoning and
currently available information, we
concluded that this rule would not
result in a significant economic impact
on a substantial number of small
entities. Therefore, we are certifying that
the designation of critical habitat for A.
jaegerianus will not have a significant
economic impact on a substantial
number of small entities, and a
regulatory flexibility analysis is not
required.
Energy Supply, Distribution, or Use—
Executive Order 13211
Executive Order 13211 (Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use) requires agencies
to prepare Statements of Energy Effects
when undertaking certain actions. OMB
has provided guidance for
implementing this Executive Order that
outlines nine outcomes that may
constitute ‘‘a significant adverse effect’’
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29125
when compared to not taking the
regulatory action under consideration.
This final revised critical habitat
designation for Astragalus jaegerianus,
as described above, is not expected to
significantly affect energy supplies,
distribution, or use. There are no
transmission power lines identified on
the designated critical habitat, or energy
extraction activities (Bureau of Land
Management 1980). In addition,
according to the FEA, no future wind
energy developments will be permitted
within the Paradise Unit due to the DOD
concerns regarding use of the air space
(IEC 2011). Further, reserve-level
management of the ACECs for
Astragalus jaegerianus conservation in
both proposed units indicate it is
unlikely that wind energy developments
will be permitted by the Bureau within
the critical habitat designation (IEC
2011, Section 3.2.4).
Thus, based on information in the
economic analysis, energy-related
impacts associated with Astragalus
jaegerianus conservation activities
within critical habitat are not expected.
As such, the designation of critical
habitat is not expected to significantly
affect energy supplies, distribution, or
use. Therefore, this action is not a
significant energy action, and no
Statement of Energy Effects is required.
Unfunded Mandates Reform Act
(2 U.S.C. 1501 et seq.)
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501),
we make the following findings:
(1) This rule will not produce a
Federal mandate. In general, a Federal
mandate is a provision in legislation,
statute, or regulation that would impose
an enforceable duty upon State, local, or
Tribal governments, or the private
sector, and includes both ‘‘Federal
intergovernmental mandates’’ and
‘‘Federal private sector mandates.’’
These terms are defined in 2 U.S.C.
658(5)–(7). ‘‘Federal intergovernmental
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
upon State, local, or Tribal
governments,’’ with two exceptions.
First, it excludes ‘‘a condition of Federal
assistance.’’ Second, it also excludes ‘‘a
duty arising from participation in a
voluntary Federal program,’’ unless the
regulation ‘‘relates to a then-existing
Federal program under which
$500,000,000 or more is provided
annually to State, local, and Tribal
governments under entitlement
authority,’’ if the provision would
‘‘increase the stringency of conditions of
assistance’’ or ‘‘place caps upon, or
otherwise decrease, the Federal
Government’s responsibility to provide
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funding,’’ and the State, local, or Tribal
governments ‘‘lack authority’’ to adjust
accordingly. At the time of enactment,
these entitlement programs were:
Medicaid; AFDC work programs; Child
Nutrition; Food Stamps; Social Services
Block Grants; Vocational Rehabilitation
State Grants; Foster Care, Adoption
Assistance, and Independent Living;
Family Support Welfare Services; and
Child Support Enforcement. ‘‘Federal
private sector mandate’’ includes a
regulation that ‘‘would impose an
enforceable duty upon the private
sector, except (i) a condition of Federal
assistance or (ii) a duty arising from
participation in a voluntary Federal
program.’’
The designation of critical habitat
does not impose a legally binding duty
on non-Federal Government entities or
private parties. Under the Act, the only
regulatory effect is that Federal agencies
must ensure that their actions do not
destroy or adversely modify critical
habitat under section 7. While nonFederal entities that receive Federal
funding, assistance, or permits, or that
otherwise require approval or
authorization from a Federal agency for
an action, may be indirectly impacted
by the designation of critical habitat, the
legally binding duty to avoid
destruction or adverse modification of
critical habitat rests squarely on the
Federal agency. Furthermore, to the
extent that non-Federal entities are
indirectly impacted because they
receive Federal assistance or participate
in a voluntary Federal aid program, the
Unfunded Mandates Reform Act would
not apply, nor would critical habitat
shift the costs of the large entitlement
programs listed above onto State
governments.
(2) We do not believe that this rule
will significantly or uniquely affect
small governments and a small
Government Agency Plan is not
required. State lands were not included
in this revised critical habitat
designation. Given the distribution of
this species, small governments will not
be uniquely affected by this rule. Small
governments will not be affected at all
unless they propose an action requiring
Federal funds, permits, or other
authorization. Any such activity will
require that the involved Federal agency
ensure that the action is not likely to
adversely modify or destroy designated
critical habitat. However, as discussed
above, Federal agencies are currently
required to ensure that any such activity
is not likely to jeopardize the species,
and no further regulatory impacts from
this revised designation of critical
habitat are anticipated. Consequently,
we do not believe that the critical
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habitat designation would significantly
or uniquely affect small government
entities. As such, a Small Government
Agency Plan is not required.
Takings—Executive Order 12630
In accordance with Executive Order
12630 (Government Actions and
Interference with Constitutionally
Protected Private Property Rights), we
have analyzed the potential takings
implications of designating critical
habitat for Astragalus jaegerianus in a
takings implications assessment. Critical
habitat designation does not affect
landowner actions that do not require
Federal funding or permits, nor does it
preclude development of habitat
conservation programs or issuance of
incidental take permits to permit actions
that do require Federal funding or
permits to go forward. The takings
implications assessment concludes that
this designation of critical habitat for A.
jaegerianus does not pose significant
takings implications for lands within or
affected by the designation.
Federalism—Executive Order 13132
In accordance with Executive Order
13132 (Federalism), the rule does not
have significant Federalism effects. A
Federalism assessment is not required.
In keeping with Department of the
Interior policy, we requested
information from, and coordinated
development of, this critical habitat
designation with appropriate State
resource agencies in California. We
solicited, but did not receive, comments
from the CDFG and have noted this in
the Summary of Comments and
Recommendations section of the rule.
As discussed above, the designation of
critical habitat in areas currently
occupied by Astragalus jaegerianus
would have little incremental impact on
State and local governments and their
activities. This is because the proposed
revised critical habitat occurs to a great
extent on Federal lands managed by the
DOD and the Bureau, and less than 2
percent occurs on private lands that
would involve State and local agencies.
The designation may have some benefit
to these governments, in that the areas
that contain the PBFs essential to the
conservation of these species are more
clearly defined, and the elements of the
features of the habitat necessary to the
conservation of the species are
specifically identified. This information
does not alter where and what Federally
sponsored activities may occur.
However, it may assist these local
governments in long-range planning
(rather than having them wait for caseby-case section 7 consultation to occur).
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Where State and local governments
require approval or authorization from a
Federal agency for actions that may
affect critical habitat, consultation
under section 7(a)(2) would be required.
While non-Federal entities that receive
Federal funding, assistance, or permits,
or that otherwise require approval or
authorization from a Federal agency for
an action, may be indirectly impacted
by the designation of critical habitat, the
legally binding duty to avoid
destruction or adverse modification of
critical habitat rests squarely on the
Federal agency.
Civil Justice Reform—Executive Order
12988
In accordance with Executive Order
12988 (Civil Justice Reform), the
regulation meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of the Order. We are designating
critical habitat in accordance with the
provisions of the Act. This final rule
uses standard property descriptions and
identifies the elements of PBFs essential
to the conservation of Astragalus
jaegerianus within the designated areas
to assist the public in understanding the
habitat needs of the species.
Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.)
This rule does not contain any new
collections of information that require
approval by OMB under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.). This rule will not impose
recordkeeping or reporting requirements
on State or local governments,
individuals, businesses, or
organizations. An agency may not
conduct or sponsor, and a person is not
required to respond to, a collection of
information unless it displays a
currently valid OMB control number.
National Environmental Policy Act
(42 U.S.C. 4321, et seq.)
It is our position that, outside the
jurisdiction of the U.S. Court of Appeals
for the Tenth Circuit, we do not need to
prepare environmental analyses
pursuant to the National Environmental
Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) in connection with designating
critical habitat under the Act. We
published a notice outlining our reasons
for this determination in the Federal
Register on October 25, 1983 (48 FR
49244). This position was upheld by the
U.S. Court of Appeals for the 9th Circuit
(Douglas County v. Babbitt, 48 F.3d
1495 (9th Cir. 1995), cert. denied 516
U.S. 1042 (1996)).
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Federal Register / Vol. 76, No. 97 / Thursday, May 19, 2011 / Rules and Regulations
Government-to-Government
Relationship With Tribes
In accordance with the President’s
memorandum of April 29, 1994,
(Government-to-Government Relations
with Native American Tribal
Governments; 59 FR 22951), Executive
Order 13175 (Consultation and
Coordination With Indian Tribal
Governments), and the Department of
the Interior’s manual at 512 DM 2, we
readily acknowledge our responsibility
to communicate meaningfully with
recognized Federal Tribes on a
government-to-government basis. In
accordance with Secretarial Order 3206
of June 5, 1997 (American Indian Tribal
Rights, Federal-Tribal Trust
Responsibilities, and the Endangered
Species Act), we readily acknowledge
our responsibilities to work directly
with Tribes in developing programs for
healthy ecosystems, to acknowledge that
Tribal lands are not subject to the same
controls as Federal public lands, to
remain sensitive to Indian culture, and
to make information available to Tribes.
We determined that there are no Tribal
lands occupied by Astragalus
jaegerianus at the time of listing that
contain the features essential for
conservation of the species, and no
Tribal lands unoccupied by A.
jaegerianus that are essential for the
conservation of the species. Therefore,
the designation of critical habitat for A.
jaegerianus will not affect Tribes or
Tribal lands.
Data Quality Act
In developing this rule we did not
conduct or use a study, experiment, or
survey requiring peer review under the
Data Quality Act (Pub. L. 106–554).
References Cited
A complete list of all references cited
herein is available on the Internet at
https://www.regulations.gov at Docket
No. FWS–R8–ES–2009–0078 and upon
request from the Field Supervisor,
Ventura Fish and Wildlife Office (see
FOR FURTHER INFORMATION CONTACT).
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Author
The primary authors of this
rulemaking are the staff of the Ventura
Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
Regulation Promulgation
Accordingly, we amend part 17,
subchapter B of chapter I, title 50 of the
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(i) Land bounded by the following
UTM Zone 10, NAD83 coordinates (E,
N): 495500, 3884300; 495700, 3884600;
PART 17—[AMENDED]
496400, 3885100; 497100, 3885400;
497300, 3885500; 497700, 3885700;
■ 1. The authority citation for part 17
498000, 3885800; 498200, 3885800;
continues to read as follows:
498900, 3885900; 500400, 3886100;
Authority: 16 U.S.C. 1361–1407; 16 U.S.C.
501100, 3886200; 501800, 3886300;
1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–
502500, 3886400; 503300, 3886500;
625, 100 Stat. 3500; unless otherwise noted.
503600, 3886500; 503900, 3886400;
■ 2. In § 17.96, amend paragraph (a) by
504100, 3886300; 504600, 3886100;
revising the critical habitat designation
504900, 3886000; 505100, 3885900;
for ‘‘Astragalus jaegerianus (Lane
505200, 3885700; 505300, 3885500;
Mountain milk-vetch),’’ under the family 505400, 3885400; 505300, 3885200;
Fabaceae, to read as follows:
505100, 3884600; 505100, 3881000;
505000, 3880900; 504700, 3880200;
§ 17.96 Critical habitat—plants.
504600, 3879900; 503900, 3879600;
(a) Flowering plants.
503800, 3879500; 503600, 3879500;
*
*
*
*
*
503000, 3879400; 502400, 3879300;
Family Fabaceae: Astragalus
502000, 3879200; 501900, 3878900;
jaegerianus (Lane Mountain milk-vetch) 501900, 3878800; 501200, 3878700;
(1) Critical habitat units are depicted
500400, 3878600; 499700, 3878500;
for San Bernardino County, California,
499600, 3878400; 499400, 3878500;
on the map below.
499100, 3878600; 498700, 3878700;
(2) Critical habitat consists of the
498400, 3878800; 498300, 3879000;
mixed desert scrub community within
498200, 3879400; 497800, 3880900;
the range of Astragalus jaegerianus that
497700, 3881200; 496400, 3881700;
is characterized by the following
496200, 3881800; 496100, 3881800;
primary constituent elements:
(i) Shallow soils at elevations between 496000, 3882000; 495600, 3883700;
495500, 3884100; returning to 495500,
3,100 and 4,200 ft (945 to 1,280 m)
3884300; excluding land bounded by:
derived primarily from Jurassic or
498800, 3883900; 499200, 3883200;
Cretaceous granitic bedrock, and less
499300, 3882900; 499500, 3882100;
frequently on soils derived from diorite
or gabbroid bedrock, or on granitic soils 499800, 3881900; 501200, 3881100;
501700, 3881100; 501900, 3881200;
overlain by scattered rhyolitic cobble,
501900, 3881300; 501800, 3882000;
gravel, and sand.
(ii) Host shrubs at elevations between 501700, 3882600; 501600, 3883100;
3,100 and 4,200 ft (945 to 1,280 m). The 501200, 3883600; 500900, 3883900;
primary host shrubs include, but are not 500200, 3884000; 499000, 3884000;
returning to 498800, 3883900.
limited to: Thamnosma montana
(turpentine bush), Ambrosia dumosa
(ii) Note: Map of Coolgardie Unit is
(burro bush), Eriogonum fasciculatum
provided at paragraph (6)(ii) of this
ssp. Polifolium (California buckwheat),
entry.
Ericameria cooperi var. cooperi (golden
(6) Paradise Unit: San Bernardino
bush), Ephedra nevadensis (Mormon
County, California. From USGS 1:24,000
tea), and Salazaria mexicana (paperbag
quadrangle map Williams Well, San
bush) that are usually found in mixed
Bernardino County, California.
desert shrub communities.
(i) Land bounded by the following
(3) Critical habitat does not include
manmade structures (including, but not UTM Zone 10, NAD83 coordinates (E,
N): 509089 3890369; 507600, 3889500;
limited to, buildings, aqueducts,
507400, 3889400; 507300, 3889500;
runways, roads, and other paved areas)
506900, 3889600; 506800, 3889700;
and the land on which they are located
506400, 3890300; 506300, 3890400;
existing within the legal boundaries on
506000, 3891600; 505900, 3892000;
the effective date of this rule and not
505800, 3892300; 505500, 3892600;
containing one or more of the PCEs.
504900, 3893000; 504600, 3893200;
(4) Critical habitat map units. These
critical habitat units were mapped using 504500, 3893300; 504000, 3894100;
503800, 3894400; 503700, 3894800;
Universal Transverse Mercator (UTM),
Zone 10, North American Datum (NAD) 503800, 3895100; 503857, 3895157;
1983 (UTM NAD 83) coordinates. These 503873, 3895157; 503874, 3894353;
504678, 3894353; 504679, 3893549;
coordinates establish the vertices and
endpoints of the boundaries of the units. 505510, 3893550; 505512, 3892977;
505912, 3892974; 505909, 3892573;
(5) Coolgardie Unit: San Bernardino
County, California. From USGS 1:24,000 506314, 3892571; 506314, 3891767;
506804, 3891767; 506804, 3891244;
quadrangle maps Lane Mountain and
506820, 3890426; 508454, 3890415;
Mud Hills, San Bernardino County,
returning to 509089, 3890369.
California.
Code of Federal Regulations, as set forth
below:
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Will Shafroth,
Acting Assistant Secretary for Fish and
Wildlife and Parks.
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Agencies
[Federal Register Volume 76, Number 97 (Thursday, May 19, 2011)]
[Rules and Regulations]
[Pages 29108-29129]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-12330]
[[Page 29107]]
Vol. 76
Thursday,
No. 97
May 19, 2011
Part IV
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; Final Revised
Designation of Critical Habitat for Astragalus Jaegerianus (Lane
Mountain Milk-Vetch); Final Rule
Federal Register / Vol. 76, No. 97 / Thursday, May 19, 2011 / Rules
and Regulations
[[Page 29108]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2009-0078; MO 99210-0-0009]
RIN 1018-AW53
Endangered and Threatened Wildlife and Plants; Final Revised
Designation of Critical Habitat for Astragalus Jaegerianus (Lane
Mountain Milk-Vetch)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
designating revised critical habitat for Astragalus jaegerianus (Lane
Mountain milk-vetch) under the Endangered Species Act of 1973, as
amended (Act). In total, approximately 14,069 acres (ac) (5,693
hectares (ha)) of land in 2 units located in the Mojave Desert in San
Bernardino County, California, fall within the boundaries of the
revised critical habitat designation.
DATES: This rule becomes effective on June 20, 2011.
ADDRESSES: The final rule and the associated final economic analysis,
and map of critical habitat are available on the Internet at https://www.regulations.gov at Docket No. FWS-R8-ES-2009-0078, and https://www.fws.gov/ventura/. Comments and materials received, as well as
supporting documentation used in the preparation of this final rule,
are available for public inspection, by appointment, during normal
business hours, at the U.S. Fish and Wildlife Service, Ventura Fish and
Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93003;
telephone 805-644-1766; facsimile 805-644-3958.
FOR FURTHER INFORMATION CONTACT: Diane Noda, Field Supervisor, U.S.
Fish and Wildlife Service, Ventura Fish and Wildlife Office (see
ADDRESSES). If you use a telecommunications device for the deaf (TDD),
call the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics directly relevant to
the development and designation of revised critical habitat for
Astragalus jaegerianus under the Act (16 U.S.C. 1531 et seq.). For more
information on the biology and ecology of A. jaegerianus, refer to the
final listing rule published in the Federal Register on October 6, 1998
(63 FR 53596), the previous proposed critical habitat that published in
the Federal Register on April 6, 2004 (69 FR 18018), and the proposed
revised designation of critical habitat that published in the Federal
Register on April 1, 2010 (75 FR 16404). Information on the associated
draft economic analysis (DEA) for the proposed rule to designate
revised critical habitat was published in the Federal Register on
November 3, 2010 (75 FR 67676).
Species Description, Life History, Distribution, Ecology, and Habitat
We received no new information pertaining to the description, life
history, or distribution of Astragalus jaegerianus following the
proposed revised designation (April 1, 2010; 75 FR 16404). These
subjects are summarized in the final listing rule that published in the
Federal Register on October 6, 1998 (63 FR 53596), and the proposed
revised designation of critical habitat that published in the Federal
Register on April 1, 2010 (75 FR 16404). However, we did receive and
analyze new information related to population dynamics, ecology, and
habitat of A. jaegerianus primarily from two long-term monitoring
reports (U.S. Army: Fort Irwin 2009, 2010) and from research recently
conducted on the effects of long-term drought on A. jaegerianus and its
host shrubs (Huggins et al. 2010). In addition, we are clarifying
information on recent genetic studies that was briefly mentioned in the
proposed revised critical habitat designation. This new information is
described below.
New Information
Population Dynamics
Two reports have become available since the proposed revised
critical habitat designation was prepared. As part of their Integrated
Natural Resources Management Plan (INRMP) responsibilities, the Army
established 40 study plots in 2005 to study the demographics of
Astragalus jaegerianus and submits annual monitoring reports to the
Service. Ten study plots were established in each of the four
populations of Astragalus jaegerianus. This species is an herbaceous
perennial that typically dies back at the end of each growing season,
and persists through the dry season as a taproot; this taproot may also
allow A. jaegerianus to survive occasional dry years, while longer
periods of drought might be endured by remaining dormant. ``Above-
ground'' refers to those individuals that can be observed each year on
the basis of their herbaceous growth. Information summarized from the
2010 annual monitoring report indicates that, while the total number of
A. jaegerianus individuals observed above-ground within the plots has
decreased compared to 2005 levels, the number of individuals has
increased annually since 2007 (Hessing 2010, p. 4). Study plot surveys
in 2005 documented 224 individuals; in 2007, the total number of
individuals observed in the study plots was 4 plants; in 2010, the
total number of individuals was 152. Of these 152 plants, 120 were
individuals that were observed the previous year, 26 were new recruits,
and 6 were resprouts.
Another ongoing population demography study conducted at permanent
survey plots at the Montana Mine and Goldstone sites showed that
Astragalus jaegerianus populations have declined in number of
individuals, and in 2009 are less than 13 percent of their population
size in 1999 (Sharifi et al. 2010, p. 4). The rate of mortality has
generally slowed in the last 2 years, although at one subplot, the rate
has increased recently compared with earlier years. Little to no
observed recruitment is thought to be the result of low seedling
survival and a depleted seed bank (Sharifi et al. 2010, pp. 11-12).
Recruitment is probably episodic and requires two or more uncommon
conditions such as: A large seed bank, precipitation greater than 8
inches (in) (200 millimeter (mm)) per year and frequently spaced (rain
events approximately four times a month), and a subsequent wet year or
summer precipitation (Sharifi et al. 2009, p. 10).
Ecology and Habitat
Huggins et al. (2010) reported on changes in host shrub canopy over
a time period from 1999 to 2009 in the same areas where populations
have been monitored by Sharifi et al. (2010) (see above). A drought
began in the Mojave Desert (and much of the western States) in 1999,
according to various researchers (Cook et al. 2004, p. 1016; Breshears
et al. 2005, p. 15144; Hereford et al. 2006, p. 19). Such droughts have
been documented to result in population diebacks and drought pruning of
perennial desert shrubs (for example, see Hamerlynck and McAuliffe
2008). Host shrubs for Astragalus jaegerianus have been documented to
have experienced a 10 percent decrease in volume and cover between 1999
and 2009, and shrub mortality has been high (Huggins et al. 2010, pp.
123-124). Such deterioration in shrub canopy cover results in increased
ground temperature and light intensity within the host shrub, and
[[Page 29109]]
likely indirectly affects the establishment and survival of A.
jaegerianus. This hypothesis was supported by the observation that
survival of A. jaegerianus was higher in host shrubs with more intact
canopies. The authors opine that continuing drought in the Mojave
Desert will lead to local extirpations of this species (Huggins et al.
2010, p. 127).
Genetics
Recent genetic analysis of Astragalus jaegerianus using AFLP
(amplification fragment length polymorphism) markers showed that the
species exhibits levels of genetic variation that are more consistent
with species that are geographically widespread with large populations
and numerous individuals, with each population exhibiting a high level
of genetic variation and significant population structure across the
range of the species (Walker and Metcalf 2008, pp. 158-177). The
observation of these results in A. jaegerianus, a species with a
restricted range and few numbers of individuals, leads the authors to
opine that the species has or is currently undergoing population
contraction. In addition, the authors found that the level of genetic
differentiation between the eastern half and the western half of the
Coolgardie population was significant, and they recommended these two
areas be recognized as separate populations.
In summary, we have considered new information as described above,
and have incorporated it into this rule; none of it has altered our
analysis of how to designate critical habitat for this species. With
respect to the recommendation that two populations of Astragalus
jaegerianus be recognized on Coolgardie Mesa, we acknowledge that there
may be two genetically distinct populations; however, because they are
geographically contiguous, it does not alter our delineation of the
critical habitat unit in this area.
Previous Federal Actions
The final rule listing Astragalus jaegerianus as an endangered
species was published on October 6, 1998 (63 FR 53596). On November 15,
2001, our decision not to designate critical habitat for A. jaegerianus
and seven other plant and wildlife species at the time of listing was
challenged in Southwest Center for Biological Diversity and California
Native Plant Society v. Norton (Case No. 01-CV-2101-IEG (S.D. Cal.). On
July 1, 2002, the court ordered the Service to reconsider its not
prudent determination, and propose critical habitat, if prudent, for
the species by September 15, 2003, and issue a final critical habitat
designation, if prudent, no later than September 15, 2004. In light of
Natural Resources Defense Council v. U.S. Department of the Interior,
113 F.3d 1121 (9th Cir. 1997), and the diminished threat of
overcollection, the Service reconsidered its decision and determined
that it was prudent to propose critical habitat for the species.
However, the Service exhausted the funding appropriated by Congress to
work on critical habitat designations in 2003 prior to completing the
proposed rule. On September 8, 2003, the court issued an order
extending the date for issuance of the proposed critical habitat
designation for A. jaegerianus to April 1, 2004, and the final
designation to April 1, 2005.
On April 6, 2004 (69 FR 18018), we published a proposed critical
habitat designation that included 29,522 ac (11,947 ha) in 4 units in
San Bernardino County, California. On April 8, 2005 (70 FR 18220), we
published our final designation of critical habitat for Astragalus
jaegerianus. Because we excluded all proposed acreage from the
designation, the final designation included zero (0) ac (0 ha).
On December 19, 2007, the 2005 critical habitat determination was
challenged by the Center for Biological Diversity (Center for
Biological Diversity v. United States Fish and Wildlife Service et al.,
Case No. CV-07-08221-JFW-JCRx). In a settlement agreement accepted by
the court on June 27, 2008, we agreed to reconsider the critical
habitat designation for Astragalus jaegerianus. The settlement
stipulated that we submit a proposed revised critical habitat rule for
A. jaegerianus to the Federal Register for publication on or before
April 1, 2010, and submit a final revised determination on the proposed
critical habitat rule to the Federal Register for publication on or
before April 1, 2011; the proposed critical habitat rule was published
on April 1, 2010 (75 FR 16404). On November 3, 2010, the document
making available the draft economic analysis and reopening the public
comment period for the proposed revised critical habitat designation
was published in the Federal Register (75 FR 67676). On December 28,
2010, the court granted an extension for the submission of the final
revised critical habitat determination to the Federal Register on or
before May 16, 2011. This final revised critical habitat designation
complies with the June 27, 2008, and December 28, 2010, court orders.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
revised designation of critical habitat for Astragalus jaegerianus
during two comment periods. The first comment period associated with
the publication of the proposed revised critical habitat designation
(75 FR 16404) opened on April 1, 2010, and closed June 1, 2010. We also
requested comments on the proposed revised critical habitat designation
and associated draft economic analysis during a second comment period
that opened November 3, 2010, and closed on December 3, 2010 (75 FR
67676). We did not receive any requests for a public hearing. We also
contacted appropriate Federal, State, and local agencies; scientific
organizations; and other interested parties and invited them to comment
on the proposed revised rule and draft economic analysis during these
comment periods.
During the first comment period, we received seven comment letters
directly addressing the proposed revised critical habitat designation.
During the second public comment period, we received 14 comment letters
directly addressing the proposed revision of critical habitat for this
species or the draft economic analysis; 1 of these consisted of an
informal ``petition,'' with approximately 870 signatures, to the Bureau
of Land Management (Bureau) regarding management of the Coolgardie
area, and 1 of the comments was from a party that previously commented
in the first comment period. All substantive information provided
during comment periods has either been incorporated directly into this
final determination or addressed below. Comments received were grouped
into five general categories specifically relating to the proposed
revised critical habitat designation for Astragalus jaegerianus, and
are addressed in the following summary and incorporated into the final
revised critical habitat designation as appropriate.
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinions from four knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which it occurs, or conservation
biology principles pertinent to the species. We received responses from
one of the four peer reviewers.
[[Page 29110]]
We reviewed all comments received from the peer reviewer for
substantive issues and new information regarding critical habitat for
Astragalus jaegerianus. Peer reviewer comments are addressed in the
following summary and incorporated into the final rule as appropriate.
Peer Reviewer Comments
Comment 1: The peer reviewer noted that protection of existing
habitat is essential because, as with other Astragalus taxa, this
species may have very narrow habitat requirements, and translocation
may have a low probability of long-term success. The reviewer also
noted that the most frequent pollinator of A. jaegerianus, Anthidium
dammersi, is a solitary bee that nests in the ground, likely in close
proximity to A. jaegerianus plants. Ground-nesting bees are highly
sensitive to activities that may compact soil, as the nests may be
damaged or destroyed, such as may occur with off-highway vehicles
(OHVs), military vehicles, construction or mining equipment, and
livestock grazing. The reviewer concludes that the designation is
scientifically sound and essential to protect the viability of A.
jaegerianus populations.
Our Response: We appreciate the peer reviewer's comments. As
discussed in the Methods section below, we took into consideration all
available information concerning habitat requirements, as well as the
needs of pollinators and seed dispersers, in delineating critical
habitat for this species.
Comment 2: The peer reviewer commented that, because much of the
genetic diversity in Astragalus jaegerianus is partitioned among
populations, it is important to designate each of the [sites for]
existing populations as critical habitat. We also received a comment
from one of the researchers that conducted the genetic analysis (Walker
and Metcalf 2008). He corrected our characterization of the results of
the genetics analysis in the proposed revised critical habitat
designation as follows: While DNA sequencing techniques detected no
variation between individuals of A. jaegerianus, the use of AFLP
genetic markers, which screen the whole genome, showed that genetic
variation was high among the individuals tested. Even though the
results are more typical of species that are geographically widespread
with large populations and numerous individuals, the observation of
these results in A. jaegerianus, a species with a restricted range and
few individuals, leads the authors to opine that the species has or is
currently undergoing population contraction (Walker and Metcalf 2008 p.
172).
Our Response: We appreciate the clarification on the results of the
genetic analyses. We acknowledge the importance of maintaining genetic
diversity within the species, and have designated all areas where
Astragalus jaegerianus occurs as critical habitat, with the exception
of those areas on Fort Irwin that have been exempted under 4(a)(3)(b)
of the Act. Because all areas where the species occurs were already
included in the proposed critical habitat designation, no changes were
made based on the information obtained from the genetic studies.
Federal Agency Comments
Comment 3: The Bureau provided an update on the status of lands
conservation efforts within the Coolgardie and Paradise Areas of
Critical Environmental Concern (ACECs), as per the prescriptions in the
West Mojave Plan (WMP) (Bureau 2010, in litt.). In particular, they
noted that:
No project permits were issued in this area in 2010
(Prescription (P) 26);
No grazing has been authorized (P27);
An additional 7 miles (mi) (11 kilometers (km)) of post
and cable barrier fence was installed in 2010 and routes were reclaimed
in the southwest corner of the Coolgardie ACEC and Rainbow Basin (P28),
and route rehabilitation and signing will continue in 2011;
The Department of Defense (DOD) intends to transfer
management of lands they have acquired for conservation within the ACEC
boundaries to the Bureau in 2011 (P29);
Mining claimholders are being contacted to determine if
any of these claims could be surrendered (P30); and
The Bureau has installed post and cable fencing to prevent
access to Coolgardie Mesa from Rainbow Basin (P31).
In addition, the Bureau reports that ranger patrols have increased in
the Coolgardie Mesa area with additional funding provided by the DOD.
Our Response: We appreciate receiving these comments and note the
Bureau's continuing efforts to implement conservation measures for this
species.
State Agency Comments
Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for his failure to adopt
regulations consistent with the agency's comments or petition.'' In
2004, we contacted the California Department of Fish and Game (CDFG)
concerning the previous 2004 proposed critical habitat designation;
however, the agency chose not to submit comments on the proposed
critical habitat designation for Astragalus jaegerianus. The State
notified us that submitting comments on the proposed critical habitat
designation was a low priority for them because they are participants
in the WMP planning process, and have previously commented on the
conservation measures that were proposed for A. jaegerianus in the
draft WMP (CDFG 2003, in litt., pp. 71-72). Furthermore, many of the
private parcels that would be subject to State environmental
regulations have been or are being purchased by DOD and transferred to
the Bureau for inclusion in the Coolgardie and Paradise ACECs. Because
of this action, the State's concern over private lands issues has been
greatly diminished in this area. We contacted the CDFG again in 2010
concerning our most recent proposed revised critical habitat
designation; the State provided no comments.
Public Comments
Comment 4: One commenter was concerned that the public did not have
adequate notification concerning the proposed revised critical habitat
designation and that there should have been a meeting with all
concerned parties.
Our Response: The Service conducted outreach by notifying
appropriate elected officials, local jurisdictions, interested parties,
and members of the public that had been identified during the previous
critical habitat designation process in 2004-2005. We also published a
legal notice in the Barstow Dispatch on April 7, 2010, concerning the
proposed revised critical habitat designation and the first open
comment period; published a news release; and posted information on the
Ventura Fish and Wildlife Office Web site as well as on
www.Regulations.gov. The second comment period was similarly noticed by
a news release and postings on our office's Web site and
www.Regulations.gov. In addition, we received no requests for a public
hearing from members of the public when the proposed revised critical
habitat designation was published. We believe we have provided
sufficient opportunity for public comment with two open comment periods
totaling 90 days.
Comment 5: Several commenters expressed concern over the amount of
acreage that was being ``set aside'' and how this would affect the high
desert community and their freedom to enjoy the desert. One commenter
thought that
[[Page 29111]]
these lands could not be enjoyed by future generations because they are
locked away from motorized travel.
Our Response: As discussed in the Background of the Critical
Habitat section of this rule, the designation of critical habitat does
not affect land ownership or establish a refuge, wilderness, reserve,
preserve, or other conservation area. Such designation does not allow
the government or public to access private lands, or require
implementation of restoration, recovery, or enhancement measures by
private landowners. Designation of critical habitat only affects
activities authorized, funded, or carried out by Federal agencies. Some
kinds of activities are unlikely to have any Federal involvement, and
so, will not be affected by critical habitat designation (see Effects
of Critical Habitat Designation section below). We anticipate that the
Bureau will continue to allow access to and manage vehicle use and
other recreational activities within this area according to the
provisions of the WMP amendment to the CDCA (California Desert
Conservation Area) Plan. The critical habitat designation does not
affect private lands or other non-Federal lands unless a Federal agency
proposes to authorize, fund, or carry out an activity on those lands.
Comment 6: One commenter questioned whether private landowners
would be ``excluded'' from the area.
Our Response: Private landowners are not excluded and may still
access their lands that fall within a critical habitat designation. As
discussed above, the designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area, and it does not alter, in any manner,
landowners' access to their lands. In addition, it does not require
private landowners to implement restoration, recovery, or enhancement
measures. See Effects of Critical Habitat Designation section below and
the 2010 DEA for additional information on the implications of critical
habitat designation to private landowners.
Comment 7: One commenter requested that we expand the habitat of
Astragalus jaegerianus because it is the ``primary food of many species
and has potential medical benefits for humans.''
Our Response: We have designated all areas where Astragalus
jaegerianus is known to exist outside of Fort Irwin as critical
habitat. Based on numerous surveys, we do not expect to find additional
occurrences outside of the designated area; also, given the species'
specific ecological needs, we cannot reasonably expect to expand the
area that it inhabits. The commenter did not provide information
documenting the use of A. jaegerianus as a source of food or medicine,
and at this time, we have no information to indicate that A.
jaegerianus is the primary food of any species, although it may have
some, as yet undetermined, medical value to humans.
Comment 8: Several commenters noted that they enjoy panning for
gold in the open desert or working small mining claims in the
Coolgardie Mesa area and do not wish to see the area closed.
Our Response: The designation of critical habitat for Astragalus
jaegerianus will not result in closure of any areas. As we have noted
previously, it will not affect non-Federal lands, unless a Federal
agency is proposing to authorize, fund, or carry out an action on that
land. Although the designation of critical habitat may require the
Bureau to reassess its land use plans, recreational activities such as
panning for gold are not expected to negatively affect land use within
the area. Under the casual use provisions of the CDCA Plan, individuals
may continue to pan for gold. In general, we do not expect that such
use, which is conducted on a fairly small scale, will compromise the
function of critical habitat for A. jaegerianus; consequently, at this
time, we do not anticipate requesting that the Bureau reassess the
provisions of the CDCA Plan with regard to this activity.
Sites where mining claims have been worked previously are unlikely
to support the primary constituent elements (PCEs) of critical habitat
because they are typically located in pockets of deeper soils where
Astragalus jaegerianus does not grow. Because Astragalus jaegerianus
occurs only under specific habitat conditions, we expect that the
Bureau is unlikely to alter the use of those claims.
We note, however, that one of the purposes of the designation of
critical habitat is to provide for the conservation of listed species.
If we, or the Bureau, identified an area within critical habitat that
contained the PCEs and was threatened by mining activities, we would
work with the Bureau and claimants to attempt to conserve the critical
habitat values of that area. After the close of the comment period for
this rule, we received information that ``prybar mining'' had been
observed at one site on Coolgardie Mesa adjacent to known Astragalus
jaegerianus plants (Silverman 2011 in litt.). Unlike the traditional
gold panning or drywash methods of mining, this method uses a prybar to
break apart rock outcrops; such outcrops are found adjacent to shallow-
soiled areas where Astragalus jaegerianus grows. We have notified the
Bureau regarding this information and will work with them to evaluate
potential impacts to the species.
Comment 9: One commenter notes that ``nothing lasts forever'' and
that we should use our resources to ``recultivate'' rather than
preserving our world as a museum.
Our Response: We recognize that the natural world is one of change.
Astragalus jaegerianus is, however, threatened by human activities and
the designation of critical habitat is one tool we can use to reduce or
eliminate those threats. Our goal in conserving A. jaegerianus is not
to create a static museum display, but to conserve the species and the
ecosystem upon which it depends. We acknowledge that this ecosystem may
change to the point that it no longer supports this species; however,
our goal is to ensure that the changes are effected by the natural
world, and not human activities.
Comment 10: One commenter described the level of unauthorized OHV
use that they have observed on Coolgardie Mesa, and notes that this use
has killed several individuals of Astragalus jaegerianus. The commenter
notes that this unauthorized use has increased from 2001 to 2010, and
that a fence constructed by the Bureau has eliminated one area of
extensive unauthorized use, but that the use has shifted to nearby
areas.
Our Response: We acknowledge that unauthorized off-highway use of
areas occupied by Astragalus jaegerianus continues. We will continue to
work with the Bureau to attempt to manage off-highway vehicle use
within the area of critical habitat so public land users have access to
Coolgardie Mesa in a manner that will facilitate the conservation of A
jaegerianus.
Comment 11: One commenter notes he has never encountered a Bureau
ranger or other law enforcement officer on Coolgardie Mesa and
anticipates that the Bureau or Service will install a fence to prevent
access to public lands.
Our Response: The Service is aware that the Bureau cannot maintain
a constant law enforcement presence in the Coolgardie Mesa area; and we
continue to work with the Bureau to attempt to increase the public's
compliance with existing land-use regulations. We understand that the
Bureau will continue to install fencing along designated open routes of
travel to prevent unauthorized off-road vehicle use. To the best of our
knowledge, the Bureau has no intention of installing a fence around the
boundaries of critical
[[Page 29112]]
habitat, and the Service has no authority to install such a fence.
Comment 12: One commenter urged the Service to think about how the
potential development of large-scale solar and wind projects in the
desert could affect Astragalus jaegerianus, and questioned whether more
critical habitat should be set aside given these future losses of
desert habitat.
Our Response: Because extensive surveys have been conducted for
Astragalus jaegerianus, including in areas outside the known geographic
range of the species, we have a high level of certainty that A.
jaegerianus does not occur in other areas of the Mojave Desert.
Therefore, we anticipate that large-scale solar and wind energy
projects across the Mojave Desert and future losses of desert habitat
that may occur will not affect A. jaegerianus.
With respect to the geographic area within the Mojave Desert where
Astragalus jaegerianus occurs, management of this habitat was discussed
in the April 1, 2010, proposed revised critical habitat designation (75
FR 16404). Congress passed the Energy Policy Act of 2005; subsequently,
the Bureau issued step-down orders that address more specifically how
to implement the Energy Policy Act of 2005 (for example, Order No. 3283
(DOI 2009a pp. 1-2) and Order No. 3285 (DOI 2009b pp. 1-3)). In
addition, the Bureau has issued its own guidelines for implementing
these policies and orders on Bureau lands. For instance, in 2008, the
Bureau issued Instruction Memorandum (IM) 2009-043, the Wind Energy
Development Policy, which includes guidelines for the development of
wind energy projects within designated ACECs (Bureau 2008, p. 2). No
alternative energy projects have been permitted or proposed within
areas we are designating as critical habitat for A. jaegerianus,
although the Bureau has received expressions of interest from wind
energy companies that are seeking sites for wind energy development.
Comment 13: One commenter reported seeing Astragalus jaegerianus
outside of the area included in the proposed revised critical habitat
designation, and included photos showing plants growing adjacent to OHV
trails.
Our Response: We examined the photos and determined the subject
plants are not Astragalus jaegerianus, but a species of larkspur
(Delphinium) in the buttercup family (Ranunculaceae).
Comment 14: One commenter stated that the proposed revised critical
habitat designation failed to include adequate critical habitat to
protect and conserve all known extant occurrences of Astragalus
jaegerianus.
Our Response: As per guidance on determining critical habitat, we
took into consideration all known extant occurrences of Astragalus
jaegerianus (see previous April 6, 2004, proposed critical habitat
designation (69 FR 18018), and the April 1, 2010, proposed revised
critical habitat designation (75 FR 16404). All known occurrences of A.
jaegerianus are included in our final critical habitat designation,
with the exception of lands within Fort Irwin, which are exempted under
section 4(a)(3) of the Act due to an approved INRMP that benefits the
conservation of the species. See the Exemptions section below.
Comment 15: One commenter asserts that the proposed revised
critical habitat designation ignored the recovery goal of critical
habitat because we did not include unoccupied habitat for recovery of
the species (as per Gifford Pinchot Task Force v. U.S. Fish and
Wildlife Service 378 F.3d 1059, 1069-70 (9th Circuit 2004) ruling). The
commenter also refers to an analysis of listed species with and without
critical habitat that indicates species with critical habitat are more
likely to be recovering than species that lack the designation (and
cites Taylor et al. 2005). The commenter suggests we should have used
robust models for conservation design (and cites Burgman et al. 2001)
to estimate additional areas important for recovery of the species.
Our Response: A critical habitat designation does not need to
include habitat unoccupied at the time of listing for recovery of the
species. We can include such habitat areas if we determine that those
lands are essential for the conservation of the species. However, in
this case, we did not designate any areas outside the geographical area
occupied by the species because: (1) We believe the size of the
occupied areas are sufficient for the conservation of the species, and
(2) based on extensive surveys for the species, these areas best
represent what is needed for the conservation of the species.
With respect to the comment that species with critical habitat are
more likely to be recovering than species that lack the designation, we
note that in Taylor et al. (2005), the authors opine that this may be
the case because, in practice, land managers have often given
significant protection to critical habitats. In the case of Astragalus
jaegerianus, we note that the Bureau had already developed
recommendations to establish ACECs on Coolgardie Mesa and Paradise, and
provide conservation-oriented management prescriptions in the draft
WMP, prior to the publication of our previous 2004 proposed critical
habitat designation.
With respect to using robust models for conservation design, we
acknowledge it would be useful to have sufficient biological
information to construct such a model. In this case, however, because
we do not have the level of detail necessary to develop the type of
model used in Burgman et al. (2001), we are using the best available
scientific information to identify critical habitat, as described in
the Methods section.
Comment 16: One commenter stated that the critical habitat
designation should be based on conservation biology principles and
include sufficient lands to maintain connectivity and reduce
fragmentation between populations (as cited in the literature, e.g.,
Debinski, and Holt 2000, Noss et al. 1997, Honnay and Jacquemyn 2006),
especially since intervening habitat is important for pollinators.
Furthermore, genetic studies on Astragalus jaegerianus indicate an
already limited gene flow between populations, and further isolation
may decrease genetic variation and ability of the species to adapt to
environmental variation (Noss et al. 1997).
Our Response: We agree that principles of conservation biology
(including maintaining gene flow between populations) are useful to
consider in identifying critical habitat. We have acknowledged their
importance in our discussion under the Physical and Biological Features
and Methods sections in this final revised critical habitat designation
and the April 1, 2010, proposed revised critical habitat designation
(75 FR 16404), and have used the best scientific information available
in the development of this designation. The critical habitat
designation in and of itself will do nothing one way or the other to
affect the degree of fragmentation between populations.
Comment 17: One commenter stated that it is important to include
currently unoccupied habitat for the species in the critical habitat
designation because of the potential effects of climate change on
temperature and precipitation, even if these are not well-understood.
Our Response: While climate change modeling has been undertaken for
the Great Basin and Sonoran Desert regions (for example, see Redmond
2010), very little modeling has been conducted for the Mojave Desert
region to date. Recent studies, however, have discussed the effects of
drought on desert shrubs
[[Page 29113]]
including localized diebacks and drought-pruning (for example, see
Breshears et al. 2005, pp. 15144-15148; Hereford et al. 2006, pp. 13-
34; Haymerlynck and Huxman 2009, pp. 582-585; and McAuliffe and
Haymerlynck 2010, pp.885-896). Huggins et al. (2010, pp. 120-128)
studied the effects of recent drought on host shrubs that support
Astragalus jaegerianus and found higher survival rates of A.
jaegerianus in host shrubs with more intact canopies, providing the
first evidence that recent drought conditions in the Mojave Desert
could be indirectly affecting the survivorship of A. jaegerianus.
However, based on the best available scientific information, we are
unable to predict at this time additional areas that could support A.
jaegerianus in the future.
Comment 18: One commenter stated that the Service should not
exclude areas that are covered by the Bureau's WMP from the critical
habitat designation by using the logic that they do not need ``special
management'' or through an exclusion through section 4(b)(2) of the
Act; by definition, these areas qualify as critical habitat.
Our Response: Our revised final critical habitat designation
includes all Bureau lands that are included in the WMP.
Comment 19: One commenter notes that Fort Irwin does not seem to be
affected by the designation of critical habitat.
Our Response: In 2004, Congress amended the Act to exempt DOD-
managed lands from critical habitat designations if the military
installation has an INRMP that is determined to provide a benefit to
the species. Fort Irwin has such a plan that the Service has reviewed
and approved. We acknowledge that military training at Fort Irwin will
result in the loss of habitat for Astragalus jaegerianus; however, the
Army has also established two areas, totaling 6,772 ac (2,741 ha),
where all training will be prohibited to protect this species. In
another area, comprising 3,700 ac (1,497 ha), all vehicular traffic
will be restricted to a limited number of roads to protect A.
jaegerianus.
Comments Related to the Draft Economic Analysis
Comment 20: One commenter stated that the economic analysis needs
to include all habitat currently occupied by Astragalus jaegerianus,
including lands on Fort Irwin, and not rely on the ``flawed'' proposed
revised critical habitat designation as the basis for the analysis.
Our Response: The DEA includes a discussion of all geographic areas
occupied by the species; the areas occupied by the species on Fort
Irwin are not included in the designation because they are exempted
through section 4(a)(3)(b) of the Act.
Comment 21: One commenter stated that the DEA incorrectly asserts
that, ``[a]ll Federal land is managed for purposes of Astragalus
jaegerianus conservation according to the WMP.'' The comment notes
that, while some of the areas proposed for critical habitat are within
ACECs designated by the WMP, these areas still allow some level of OHV
use, causing habitat fragmentation and opportunities for illegal OHV
use in the areas designated as critical habitat.
Our Response: The final EA has been amended to state that all
Bureau lands are managed according to the WMP for the purposes of
Astragalus jaegerianus conservation. The objective of the WMP is to
provide a conservation strategy for sensitive plant and animal species,
including A. jaegerianus. The DEA does not assert that the management
of the proposed critical habitat area according to the WMP precludes
all OHV use within the boundaries of the proposed critical habitat
area. Specifically, Section 3.2.2 of the DEA describes that vehicle
routes within the proposed critical habitat area are classified under
the WMP as open, closed, or limited, and all OHV-users must comply with
the road designations. Section 3.2.2 further describes that because of
damage related to unauthorized use, the Bureau has fenced portions of
the West Paradise ACEC and the Coolgardie Mesa ACEC. As noted in the
final EA, however, ``Vehicle use will not be altogether precluded, due
to the need to provide access to the private lands and mining claims.''
The DOD is not permitting any activities on DOD lands within the
boundaries of the ACECs, since the intent of their acquisition is to
transfer them to the Bureau.
Comment 22: A comment provided on the DEA states that there is some
development pressure, particularly with regard to wind energy
development, on private parcels within the ACEC areas until these
parcels are acquired to consolidate public land ownership.
Our Response: As described in Section 3.1 of the DEA, the private
parcels within the proposed designation are primarily homesteads
interspersed within the ACECs. No development activities, such as wind
energy projects, have been subject to section 7 consultation under the
Act regarding the Astragalus jaegerianus on these private lands. While
it is possible that such projects may be proposed in the future, only
those projects subject to a Federal nexus (i.e., projects permitted,
funded, or carried out by a Federal agency) may result in section 7
consultation with the Service. No such consultations have occurred for
any projects on private lands in A. jaegerianus habitat to date. The
probability of future wind energy projects being proposed on private
lands within the proposed critical habitat area is uncertain; however,
we do not anticipate any development of wind energy in the area. See
also response to Comment 12 above and the Energy Supply, Distribution,
or Use section below.
Comment 23: Multiple comments state that any restrictions placed
upon the proposed critical habitat area will result in losses to miners
and OHV users. One of these comments further states that recreationists
contribute millions of dollars to the regional economy. Another comment
asserts the DEA does not correctly assess the effect of restrictions on
certain land-use activities on local, regional, and national economies.
Our Response: Section 3.2 of the DEA describes that land use
activities, such as mining and OHV recreation, are currently restricted
within the proposed critical habitat area, even absent critical habitat
designation. The Federal lands in the proposed critical habitat area
(79 percent of the proposed critical habitat) are managed for
Astragalus jaegerianus conservation according to the WMP, which has
limited access to the habitat area through closing some vehicle routes
and fencing ACECs containing A. jaegerianus habitat. Section 3.3.1 of
the DEA describes that, due to the existing management of habitat
threats through the WMP, critical habitat for A. jaegerianus is not
expected to result in additional conservation measures for the species
on Federal lands. Section 3.3.2 of the DEA further describes that the
private land uses within proposed critical habitat (small scattered
parcels containing homesteads) are not likely to trigger section 7
consultation or the California Environmental Quality Act (CEQA)
requirements and, therefore, critical habitat designation of these
lands is not anticipated to restrict land-use activities. Thus, the DEA
does not expect critical habitat to generate any additional
restrictions on land-use activities that will result in impacts to the
local, regional, or national economies.
Comment 24: A comment provided on the DEA suggests that, if there
are no economic costs associated with the critical habitat designation
due to the existing conservation measures for the
[[Page 29114]]
species, it is likely that there is no need for the designation. The
comment further states that the designation must result in some
economic impacts due to project delays and costs of consultation with
the Service.
Our Response: Even though there were no economic costs identified
in the final EA associated with the critical habitat designation due to
existing conservation measures for the species, the areas proposed for
designation meet the definition of critical habitat, and therefore are
included in the designation.
Section 3.3.1 of the DEA describes that critical habitat
designation is not expected to result in additional section 7
consultations. The section also notes that any future consultations
considering Astragalus jaegerianus will experience some incremental
administrative costs to consider potential adverse modification of
critical habitat. Due to the continued management of the critical
habitat area by the Bureau according to the WMP, however, the DEA
anticipates only a single, informal consultation with the Bureau
regarding the pending land transfer between the DOD and the Bureau. The
Bureau does not anticipate consulting with the Service on other land
management activities, and no consultations are forecast to occur for
activities on private lands. Thus, the DEA concludes that the
incremental administrative costs of consultation associated with the
critical habitat designation are most likely to be negligible; the DEA
did not predict any project delays.
Comment 25: One comment asserts that the DEA fails to calculate the
benefits of the critical habitat designation, stating that all types of
benefits should be assessed and quantified or, where quantification is
inappropriate or too speculative, should be described qualitatively to
allow for a comparison of costs to benefits.
Our Response: As described in Section 3.4 of the DEA, critical
habitat designation is not expected to generate: (1) Additional
conservation efforts for Astragalus jaegerianus; (2) changes in
economic activity; or (3) changes to land management. Absent any
changes in the above, no incremental economic benefits are forecast to
result from the designation of critical habitat.
We believe the commenter is referring to benefits with respect to
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 decisionmaking 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, because
Congress has already clarified the social importance of the species and
its habitat. 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 we need only to consider whether the economic impacts
(both positive and negative) are significant enough to merit exclusion
of any particular area without causing the species to go extinct.
Comment 26: A comment provided on the DEA states that the document
should explain the differences between the October 2004 DEA of the
previous proposed critical habitat designation for Astragalus
jaegerianus and the 2010 DEA of the proposed revised critical habitat
designation. The 2004 analysis quantified both pre-designation
(occurring from the time of listing to final critical habitat
designation) and post-designation impacts, estimating $5.84 million to
$13.01 million in post-designation impacts. The 2010 DEA, however, does
not quantify any impacts. The comment further asserts that there must
be some economic impact associated with fencing areas, effects on
military activities, relocating OHV use, and precluding mining and
energy projects.
Our Response: Section 1.3 of the DEA describes the differences
between the 2005 Economic Analysis (which is the final version of the
October 2004 DEA referenced in this comment) and the 2010 DEA of the
revised proposed critical habitat.
First, the 2005 Economic Analysis and the 2010 DEA apply different
analytic frameworks. The 2005 Economic Analysis quantified impacts of
all Astragalus jaegerianus conservation in the areas being proposed as
critical habitat, regardless of whether the conservation efforts were
occurring due to critical habitat designation or other baseline
regulations or conservation plans. As a result, the impacts quantified
in the 2005 Economic Analysis include impacts due to such baseline
protections as Federal listing of A. jaegerianus, implementation of the
West Mojave Plan, and DOD conservation efforts for A. jaegerianus at
the National Training Center at Fort Irwin (NTC). The 2010 DEA,
however, focuses on those impacts resulting incrementally from critical
habitat designation, as described in Chapter 2. That is, we do not
include impacts of A. jaegerianus conservation occurring due to the
implementation of baseline protections, plans, or regulations. Thus,
impacts of activities such as fencing, limiting OHV activity, mining,
and energy projects are not quantified in the 2010 DEA, as they are
expected to occur regardless of the critical habitat designation.
Second, the proposed critical habitat area considered in the 2005
Economic Analysis was more than double the proposed critical habitat
area being considered in the 2010 DEA. The primary reason for the
difference in scope is that the Service's 2010 proposed revised
critical habitat designation exempted 16,462 ac (6,662 ha) located
within DOD's National Training Center at Fort Irwin from critical
habitat designation. Because this area is exempt from critical habitat
designation, no impacts of critical habitat are expected to occur on
these lands.
Summary of Changes From the Proposed Revised Rule and Previous Critical
Habitat Designation
In our final revised critical habitat rules, we typically provide a
Summary of Changes that compares the final revised critical habitat
designation with the previously proposed revised critical habitat
designation as well as with previously designated critical habitat.
However, we designated zero (0) ac (0 ha) in our previous designation.
Therefore, we are also providing comparison between the previously
proposed critical habitat designation from April 6, 2004 (69 FR 18018),
the proposed revised critical habitat designation from April 1, 2010
(75 FR 16404), and this final revised critical habitat designation.
There are no changes from the April 1, 2010, proposed revised critical
habitat designation and this final revised critical habitat
designation. This final revised critical habitat designation compares
with the previous April 6, 2004, proposed designation (69 FR 18018) as
follows:
(1) In 2004, we proposed 9,627 ac (3,896 ha) of Bureau lands and
4,427 ac (1,792 ha) of private lands. Currently we are designating
9,888 ac (4,002 ha) of Bureau lands and 2,899 ac (1,169 ha) of private
lands.
(2) In 2004, we proposed 211 ac (85 ha) of lands inaccurately
identified as
[[Page 29115]]
State lands. In this revised designation we are not including, through
exemption under section 4(a)(3) of the Act, 211 ac (85 ha) of the NTC
lands covered under the Army's INRMP. The land was inaccurately
identified as State Lands in our 2004 proposed critical habitat rule.
(3) In this revised designation we are including 1,282 ac (519 ha)
of lands that were formerly in private ownership but have been acquired
by the DOD for the purposes of conservation of Astragalus jaegerianus.
These lands are not contiguous with the NTC and are not covered under
the Army's INRMP.
(4) We are not designating through exemption under section 4(a)(3)
of the Act, 16,462 ac (6,662 ha) of the NTC lands covered under the
Army's INRMP.
Below, table 1 compares the acreage by land ownership included in
the previous 2004 proposed critical habitat designation and the
previous 2005 final critical habitat designation, with what we proposed
in the 2010 revision and are including in this final revised critical
habitat designation.
Table 1--Comparison of Acreages Included in Previous and Current Rulemaking Actions for Astragalus jaegerianus
----------------------------------------------------------------------------------------------------------------
2005 final 2010 proposed
2004 proposed revision to the revised critical 2011 final revised
Name of critical habitat unit designation of critical habitat habitat critical habitat
critical habitat designation (70 FR designation (75 FR designation
(69 FR 18018) 18220) 16404)
----------------------------------------------------------------------------------------------------------------
Goldstone-Brinkman............. 9,906 ac (4,008 ha) Excluded (all) 0 10,394 ac (4,206 10,394 ac (4,206
ac (0 ha). ha) exempted due ha) exempted due
to INRMP on NTC to INRMP on NTC
lands. lands.
Paradise....................... 6,828 ac (2,763 ha) Excluded (all) 0 A portion exempted A portion exempted
ac (0 ha). due to INRMP on due to INRMP on
NTC lands, 6,068 NTC lands, 6,068
ac (2,456 ha); a ac (2,456 ha); a
portion included portion included
964 ac (390 ha). 964 ac (390 ha).
Coolgardie..................... 12,788 ac (5,175 Excluded (all) 0 13,105 ac (5,303 13,105 ac (5,303
ha). ac (0 ha). ha) included. ha) included.
Totals..................... 29,522 ac (11,947 0 ac (0 ha)....... 14,069 ac (5,693 14,069 ac (5,693
ha). ha). ha).
----------------------------------------------------------------------------------------------------------------
Note: Land areas may not sum due to rounding.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by a
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered species or threatened species to the point at which the
measures provided pursuant to the Act are no longer necessary. Such
methods and procedures include, but are not limited to, all activities
associated with scientific resources management such as research,
census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given ecosystem
cannot otherwise be relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies insure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner seeks or requests Federal
agency funding or authorization of an action that may affect a listed
species or critical habitat, the consultation requirements of section
7(a)(2) of the Act would apply, but even in the event of a destruction
or adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
For inclusion in a critical habitat designation, the habitat within
the geographical area occupied by the species at the time it was listed
must contain physical and biological features (PBFs) which are
essential to the conservation of the species and which may require
special management considerations or protection. Critical habitat
designations identify, to the extent known using the best scientific
and commercial data available, those PBFs that are essential to the
conservation of the species (such as space, food, cover, and protected
habitat), focusing on the principal biological or physical constituent
elements (primary constituent elements) within an area that are
essential to the conservation of the species (such as roost sites,
nesting grounds, seasonal wetlands, water quality, tide, soil type).
Primary constituent elements are the elements of PBFs that, when laid
out in the appropriate quantity and spatial arrangement to provide for
a species' life-history processes, are essential to the conservation of
the species.
Under the Act, we can designate critical habitat in areas outside
the geographical area occupied by the species at the time it is listed,
upon a determination that such areas are essential for the conservation
of the species. According to regulations at 50 CFR 424.12, we designate
critical habitat in areas outside the geographical area presently
occupied by a species only when a designation limited to its present
range would be inadequate to ensure the conservation of the species.
When the best available scientific data do not demonstrate that the
[[Page 29116]]
conservation needs of the species require such additional areas, we
will not designate critical habitat in areas outside the geographical
area occupied by the species. An area currently occupied by the species
but that was not occupied at the time of listing may, however, be
essential to the conservation of the species and may be included in the
critical habitat designation.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality
Guidelines, provide criteria, establish procedures, and provide
guidance to ensure that our decisions are based on the best scientific
data available. They require our biologists, to the extent consistent
with the Act and with the use of the best scientific data available, to
use primary and original sources of information as the basis for
recommendations to designate critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species and
any previous designation of critical habitat. Additional information
sources may include the recovery plan, 5-year reviews for the species,
articles in peer-reviewed journals, conservation plans developed by
States and counties, scientific status surveys and studies, biological
assessments, or other unpublished materials and expert opinion or
personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. Climate change will be a particular challenge for
biodiversity because the interaction of additional stressors associated
with climate change and current stressors may push species beyond their
ability to survive (Lovejoy 2005, pp. 325-326). The synergistic
implications of climate change and habitat fragmentation are the most
threatening facet of climate change for biodiversity (Hannah et al.
2005, p. 4). Current climate change predictions for terrestrial areas
in the Northern Hemisphere indicate warmer air temperatures, more
intense precipitation events, and increased summer continental drying
(Field et al. 1999, pp. 1-3; Hayhoe et al. 2004, p. 12422; Cayan et al.
2005, p. 6; Intergovernmental Panel on Climate Change 2007, p. 1181).
Climate change may lead to increased frequency and duration of severe
storms and droughts (Golladay et al. 2004, p. 504; McLaughlin et al.
2002, p. 6074; Cook et al. 2004, p. 1015).
Some efforts have been made to predict the effects of climate
change in the Western States region (see Redmond 2010). However,
predictions of climatic conditions for smaller subregions, such as the
Mojave Desert in California, remain uncertain. It is unknown at this
time if climate change in the Mojave Desert in California will result
in a warmer trend with localized drying, higher precipitation events,
or other effects. Thus, the information currently available on the
effects of global climate change and increasing temperatures does not
make sufficiently precise estimates of the location and magnitude of
the effects. Nor are we currently aware of any climate change
information specific to the habitat of Astragalus jaegerianus that
would indicate what areas may become important to the species in the
future. Therefore, we are unable to determine what additional areas, if
any, may be appropriate to include in the final revised critical
habitat for this species to respond to potential effects of climate
change.
We specifically requested information from the public on the
currently predicted effects of climate change on Astragalus jaegerianus
and its habitat, and we have included a discussion of potential effects
of the current drought on host shrubs and indirect effects on A.
jaegerianus (Huggins et al. 2010, pp. 120-128). Should drought
conditions continue in the Mojave Desert, regardless of whether it is
caused by climate change or other short-term weather variation, it may