[Federal Register Volume 63, Number 193 (Tuesday, October 6, 1998)]
[Rules and Regulations]
[Pages 53596-53615]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26734]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AB75
Endangered and Threatened Wildlife and Plants; Determination of
Endangered or Threatened Status for Five Desert Milk-vetch Taxa From
California
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) determines
endangered status pursuant to the Endangered Species Act of 1973, as
amended, (Act) for three plants--Astragalus jaegerianus (Lane Mountain
milk-vetch), Astragalus lentiginosus var. coachellae (Coachella Valley
milk-vetch), and Astragalus tricarinatus (triple-ribbed milk-vetch);
and threatened status for two plants, Astragalus lentiginosus var.
piscinensis (Fish Slough milk-vetch), and Astragalus magdalenae var.
peirsonii (Peirson's milk-vetch). Many taxa in the genus Astragalus,
including the taxa covered by this rule, are endemic to habitats with
specific substrate or hydrologic conditions and are, therefore,
naturally limited in distribution by the availability of habitat. The
five taxa in this rule occur in specific habitats within the three
deserts of California; the Sonoran, Mojave, and Great Basin deserts.
Astragalus jaegerianus occurs in granitic soils in San Bernardino
County; A. lentiginosus var. coachellae occurs in the dune system of
the Coachella Valley in Riverside County; A. lentiginosus var.
piscinensis grows in moist alkaline flats near the border of Inyo and
Mono counties; A. tricarinatus occurs in canyon slopes and washes in
Riverside and San Bernardino counties and A. magdalenae var. peirsonii
occurs primarily on dunes in Imperial County.
These five plant taxa are threatened by one or more of the
following--mining, urban development, off-highway vehicle (OHV) use and
recreational development, pipeline maintenance, alteration of a wetland
ecosystem, and low recruitment possibly due to rabbit herbivory or
altered soil hydrology following fishery enhancement activities.
Military training, and cattle grazing are potential threats. Two of the
taxa are known from fewer than 200 individuals during the last decade.
They are vulnerable to extinction from random natural events
[[Page 53597]]
or unplanned activities that can destroy a substantial portion of
remaining individuals. This rule implements the protection and recovery
provisions afforded by the Act for these plants.
DATES: This rule is effective on November 5, 1998.
ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours at the U.S. Fish and
Wildlife Service, Ventura Field Office, 2493 Portola Road, Suite B,
Ventura, California, 93003.
FOR FURTHER INFORMATION CONTACT: Diane Steeck, Botanist, at the above
address (telephone 805/644-1766).
SUPPLEMENTARY INFORMATION:
Background
The genus Astragalus, in the pea family (Fabaceae), is well
represented in North America with close to 400 species. In California,
the genus is highly diversified in the deserts and surrounding desert
ranges. Astragalus jaegerianus (Lane Mountain milk-vetch), Astragalus
lentiginosus var. coachellae (Coachella Valley milk-vetch), Astragalus
lentiginosus var. piscinensis (Fish Slough milk-vetch), Astragalus
magdalenae var. peirsonii (Peirson's milk-vetch), and Astragalus
tricarinatus (triple-ribbed milk-vetch) are adapted to habitats with
specific substrate or hydrologic conditions in the three deserts that
occur in California. The southernmost desert, the Sonoran (or Colorado)
Desert, includes the southeastern corner of California and the
Coachella Valley, and extends southward into Mexico. The Sonoran Desert
occurs at elevations primarily below 600 meters (m) (2,000 feet (ft)),
where a diverse mixture of cacti and succulent plants comprise a
significant component of the vegetation. To the north of the Sonoran
Desert lies the Mojave Desert, with a transitional zone between these
deserts occurring within the bounds of Joshua Tree National Park. The
Mojave Desert, at elevations primarily between 600 and 1,200 m (2,000
and 4,000 ft), is characterized by the presence of Joshua trees (Yucca
brevifolia) scattered within creosote bush (Larrea tridentata) scrub.
The Great Basin Desert covers most of Nevada as well as portions of
Utah, Idaho, and Oregon. In California, the Great Basin Desert extends
from the Oregon border southward along the east side of the Sierra
Nevada range, where it intergrades with the Mojave Desert in southern
Owens Valley. The Great Basin Desert, at elevations above 1,200 m
(4,000 ft), is characterized by the dominance of sagebrush (Artemisia
spp.). Descriptions of Mojave and Sonoran Desert plant communities can
be found in Rowlands et al. (1982), Thorne (1982), Thorne (1986), Vasek
and Barbour (1988), and Burk (1988). The sagebrush-dominated
communities of the Great Basin Desert are described by Young et al.
(1986) and Holland and Keil (1990).
Discussion of the Five Taxa
Astragalus jaegerianus (Lane Mountain milk-vetch) was described by
Philip A. Munz (1941) based on a specimen he collected ''. * * * 2
miles south of Jay Mine, about 12 miles south of Goldstone * * *'' in
San Bernardino County, in April 1941. This species has been
consistently recognized by botanists in floristic treatments (Munz and
Keck 1959, Munz 1974, Spellenberg 1993).
Astragalus jaegerianus is a wispy perennial that is somewhat woody
at the base, with stems 30 to 50 centimeters (cm) (12 to 20 inches
(in)) long, that often grow in a zigzag pattern, usually up through low
bushes. Leaves have 7 to 15 silvery pubescent linear leaflets, 5 to 25
millimeters (mm) (0.2 to 1.0 in) long. The flowers, 5 to 15 per stalk,
are cream to purple, or lighter with veins of a deeper color. The keel
petals are less than 10 mm (0.4 in) long. Fruits are pencil-shaped,
linear, smooth, and pendant, 16 to 25 mm (0.6 to 1.0 in) long.
After the early collections in 1939 and 1941, the plant was not
collected again until it was rediscovered in 1985 about 8 kilometers
(km) (5 miles (mi)) north of the presumed type locality. A total of 87
plants were counted (Mark Bagley, John Chesnut, and Mary DeDecker, in
litt. 1985). Intensive surveys over the next seven years led to the
discovery of a few additional small populations. The most recently
discovered population, located a few miles west of Lane Mountain,
closely approximates the type locality (Connie Rutherford, U.S. Fish
and Wildlife Service (Service), in litt. 1992; Brandt et al. 1993).
Currently, Astragalus jaegerianus is known from four general sites.
Three of the sites occur within an area of about 35 square km (14 sq
mi) and the plants within each site are widely scattered. Fewer than
130 plants have been located at these three sites in the last decade,
although repeated searches of suitable habitat have been made (J.
Chestnut, M. Bagley, and M. DeDecker, in litt. 1985; Brandt et al.
1993; C. Rutherford, in litt. 1995). The fourth site, near Lane
Mountain, is located about 14 km (9 mi) to the south. No more than 30
plants have been found at the Lane Mountain site since its discovery in
1992 (Connie Rutherford, Service, pers. comm. 1996). At the northern
sites, A. jaegerianus occurs on lands managed by the Department of
Defense (DOD) at the National Training Center (NTC) of Fort Irwin, and
on adjacent lands managed by the Bureau of Land Management (BLM). At
the southernmost site, near Lane Mountain, plants are known to occur on
BLM lands, although Lane Mountain Mesa is a patchwork of public and
private lands.
At the northern sites, Astragalus jaegerianus has been found most
often in shrub associations where Mormon tea (Ephedra nevadensis) or
Cooper goldenbush (Ericameria cooperi) are the dominant or subdominant
shrub species within the larger creosote bush/white bursage (Larrea
tridentata/Ambrosia dumosa) community (Brandt et al 1993). At all
sites, Astragalus jaegerianus plants are almost exclusively found
growing up through shrubs or, occasionally, through clumps of dead
bunchgrass (Brandt et al 1993; C. Rutherford, pers. comm. 1996). On the
NTC, Astragalus jaegerianus grows in granitic soils that are more
coarse, at least on the surface, than surrounding soils (Brandt et al
1993).
Threats to Astragalus jaegerianus include habitat destruction from
dry wash gold mining, other mining activities (materials lease mining),
rock and mineral collecting, off-highway vehicle (OHV) activity, and
potentially from increasing fire frequency and any associated fire
suppression activities. At the time the proposed rule was being
prepared, military vehicle maneuvers occurred in the plant's habitat.
Since that time, the military has installed protective fencing;
however, trespass by military vehicles remains a potential threat until
the efficacy of the fencing can be determined. In addition, an
expansion of the NTC at Fort Irwin onto surrounding BLM lands has been
proposed. Although the location of the expansion has not yet been
chosen, locations that support A. jaegerianus are being considered. Few
individuals combined with the proximity of the species to roads and
active mining areas in both the northern and Lane Mountain sites, and
to private lands and dwellings at the Lane Mountain site, make A.
jaegerianus vulnerable to unplanned, potentially destructive, human
activities. In the proposed rule, sheep grazing was considered a minor
threat. Sheep grazing no longer occurs on the lands where A.
jaegerianus grows (Tom Eagen, BLM, pers. comm. 1996).
Astragalus lentiginosus was first described by Sir William Jackson
Hooker (1831) based on a specimen collected by David Douglas in the ``.
. .
[[Page 53598]]
subalpine ranges of the Blue Mountains [Oregon] of North-West
America.'' The species has been placed in three different genera--
Tragacantha lentiginosa (Kuntze 1891), Phaca lentiginosa (Piper 1906),
and Cystium lentiginosum (Rydberg 1913). However, these segregate
genera have not been sustained in the literature and this species is
currently recognized as Astragalus lentiginosus (Barneby 1945, Munz and
Keck 1959, Munz 1974, Spellenberg 1993). The epithet lentiginosus means
``freckled'' and refers to its mottled fruit or pod.
Astragalus lentiginosus var. coachellae (Coachella Valley milk-
vetch) was described by Rupert Barneby in Shreve and Wiggins (1964)
based on a 1913 collection by Alice Eastwood near Palm Springs,
Riverside County. Prior to publication of this variety, Barneby (1945)
had included this taxon under A. lentiginosus var. coulteri.
Subsequently, Barneby determined that variety coulteri was based upon
material that was quite different, resulting in the description of the
variety coachellae. The recent treatment by Spellenberg (1993) supports
Barneby's treatment.
Astragalus lentiginosus var. coachellae is an erect winter annual
or short-lived perennial, 20 to 30 centimeters (cm) (8 to 12 in) tall
and covered with white-silky hairs. The flowers are deep pink-purple,
in a loose or dense 13-to 25-flowered raceme (an inflorescence in which
stalked flowers are arranged singly along a central stem). The two-
chambered fruits are strongly inflated.
Astragalus lentiginosus var. coachellae is found on loose wind-
blown or alluvial sands on dunes or flats in the Coachella Valley,
Riverside County, California. Barneby (1964) described this taxon as
``. . . apparently confined to Coachella Valley . . . ,'' although in
1973, he identified specimens collected from an area about 80 km (50
mi) to the east, near Desert Center, as A. lentiginosus var. coachellae
(specimens located at the herbarium of Rancho Santa Ana Botanic Garden;
Gary D. Wallace, Service, pers. comm. 1996). Currently, populations are
known only from the Coachella Valley between Cabazon and Indio
(California Natural Diversity Database (CNDDB) 1996; Katie Barrows,
Coachella Mountains Conservancy, in litt. 1996).
The historical abundance of Astragalus lentiginosus var. coachellae
in the Coachella Valley is unknown. Twenty to twenty-five
``occurrences'' of A. lentiginosus var. coachellae have been recorded
as extant within the past decade (CNDDB 1996; K. Barrows, in litt.
1996) and 90 percent of these are located within 5 km (3 mi) of
Interstate 10 from north of Indio to Cabazon (Barrows 1987, CNDDB 1996,
K. Barrows, in litt. 1996). About 20 to 25 percent of the occurrences
of A. lentiginosus var. coachellae are protected in the three preserves
of the Coachella Valley Preserve System. The largest preserve protects
populations of A. lentiginosus var. coachellae in the southeastern part
of its range and two other preserves in the central range of this taxon
also support populations. The Coachella Valley Preserve System, jointly
owned and managed by the BLM, The Nature Conservancy (TNC), California
Department of Fish and Game (CDFG), California Department of Parks and
Recreation, and the Service, was established in 1986 to conserve
habitat for the federally threatened Coachella Valley fringe-toed
lizard (Uma inornata), and other taxa endemic to the habitats of the
Coachella Valley. None of the plants in the northwestern part of the
range of A. lentiginosus var. coachellae are currently protected,
although acquisition of habitat in this region is being considered by
the Coachella Valley Mountains Conservancy (K. Barrows, pers. comm.
1996). About 75 to 80 percent of the occurrences of A. lentiginosus
var. coachellae are located on unprotected lands. Of those, about 7
percent are on lands owned by Southern California Edison, about 7
percent are on lands owned by the Agua Caliente Indian Reservation, and
the remainder are privately owned.
Population sizes vary widely from year to year, depending on
environmental conditions, making assessment of total numbers of
individual plants difficult. At sites where Astragalus lentiginosus
var. coachellae was monitored in 1995, densities varied from 1.25
plants per hectare (ha) (.67 plants per acre (ac)) to 60 plants per ha
(24 plants per ac) (Sanders and Thomas Olsen Associates 1995). One of
the largest known remaining sites for this taxon occurs in the north,
near Snow Creek Road. In 1995, this area supported about 60 plants per
ha (24 plants per ac), the greatest densities of A. lentiginosus var.
coachellae found during 1995 surveys (Barrows 1987, Sanders and Thomas
Olsen Associates 1995).
The primary threat to Astragalus lentiginosus var. coachellae is
habitat destruction due to the extensive urban development occurring in
the Coachella Valley. Urbanization destroys populations by direct
conversion of the land on which they occur and by altering or reducing
the source and transport of blow sands that maintain the sand habitats
of the Coachella Valley. Populations of A. lentiginosus var. coachellae
have been altered by development of wind energy parks and degraded by
OHV use (Barrows 1987; K. Barrows, pers. comm. 1996). Initially, A.
lentiginosus var. coachellae may respond favorably to low-levels of
artificial disturbance, but its long-term response in these situations
is unknown (Stevens and Pearson 1984; BLM, in litt. 1992; Pearson in
litt. 1993).
Astragalus lentiginosus var. piscinensis (Fish Slough milk-vetch)
was described by Barneby (1977) based on a collection made by Mary
DeDecker in 1974, from BLM Spring, Fish Slough, northwest of Bishop.
Spellenberg (1993) retained this variety in his treatment of
Astragalus. The plant is a prostrate perennial, with few-branching
stems that are up to 1 m (3 ft) long and are covered with stiff
appressed hairs. The leaflets are reduced to only 1 to 2 pairs
laterally, with a greatly elongated terminal leaflet. The lavender
flowers are arranged in loose but short 5-to 12-flowered racemes. The
fruits are papery, strongly inflated with a complete septum, and are
covered with appressed hairs.
Astragalus lentiginosus var. piscinensis is restricted to a 6-mile
stretch of alkaline flats paralleling Fish Slough, a desert wetland
ecosystem in Inyo and Mono counties, California. It grows in seasonally
moist alkaline flats that support a cordgrass-dropseed (Spartina-
Sporobolis) association and is absent from nearby lower areas that are
seasonally flooded (Ferren 1991a; Wayne Ferren, University of
California at Santa Barbara, in litt. 1992). Appropriate alkali habitat
covers less than 219 ha (540 ac) of the slough and portions of this
area do not currently support A. lentiginosus var. piscinensis, for
unknown reasons (Ferren 1991, Odion et al. 1991).
At the time this taxon was proposed, the total number of plants at
Fish Slough was thought to be about 700. In 1992, during intensive
surveys of all potential habitat of Astragalus lentiginosus var.
piscinensis within Fish Slough, about 3,200 individuals were found
widely scattered or grouped over approximately 212 ha (530 ac) (Patti
Novak, Los Angeles Department of Water and Power (LADWP), in litt.
1992). This first complete, intensive, survey for this species was
conducted over several days and covered all suitable alkali habitat at
Fish Slough. During the survey, several of the previously monitored
sites were found to be much greater in extent than had been previously
known. However, one site that had supported six plants in
[[Page 53599]]
earlier visits failed to support any, and another previously recorded
site showed a substantial decline--44 plants in 1983, 29 in 1985, and 8
in 1992. The four-fold increase in the total number of plants
encountered in the 1992 survey does not suggest an increase or decrease
in population size, but provides the first comprehensive data on the
species-wide abundance of A. lentiginosus var. piscinensis. Over 60
percent of this population is located in the northern portion of the
slough on land owned by the LADWP and approximately 35 percent of known
A. lentiginosus var. piscinensis plants grow in the central zone of the
slough on lands owned and managed by both BLM and LADWP. About 5
percent are in scattered patches downstream as far as McNally Canal,
but Fish Slough is narrow at its southern end, with little suitable
habitat (P. Novak, in litt. 1992; W. Ferren, in litt. 1992).
In 1991, LADWP constructed a 32 ha (80 ac) cattle exclosure at the
northern end of the slough. In 1992, over 95 percent of the Astragalus
lentiginosus var. piscinensis plants in the northern zone were within
the exclosure. Other than the area encompassed by the exclosure in the
north end of Fish Slough, lands under LADWP management that support
this taxon are grazed (Paula Hubbard, LADWP, pers. comm. 1996). Grazing
is not permitted in the habitat of A. lentiginosus var. piscinensis on
lands managed by BLM, in the central zone of the slough.
Current threats to Astragalus lentiginosus var. picinensis include
a lack of recruitment in the central zone population of Fish Slough,
trampling and grazing by cattle, modification of wetlands, and
alteration of slough hydrology. A long-term threat may be the expansion
of Fish Slough Lake, which may be due to natural geologic processes or
the existence of Red Willow Dam, resulting in increased inundation of
soils and loss of suitable alkali habitat for this taxon (W. Ferren
1991c, W. Ferren, in litt. 1992). Historical alterations of the Fish
Slough ecosystem to enhance fisheries appear to have caused similar
increases in seasonally flooded habitats, which are less suitable for
A. lentiginosus var. piscinensis. Modifications include creation of
dams and weirs in the main slough channel, construction of a dirt road
through milk-vetch habitat, and soil compaction and trail creation by
cattle. These activities have altered the slough hydrology by causing
an increase in permanently flooded habitats, artificial ponding,
alteration in drainage patterns, and changes in seasonal flooding of
milk-vetch habitat. These changes have resulted in expansion of
emergent wetland vegetation and conversion of alkali flat habitats
which support A. lentiginosus var. piscinensis to other vegetation
types (Ferren 1991b; Ferren in litt. 1992). Trampling and grazing by
cattle, and associated ecological changes, also potentially threaten
this taxon.
Astragalus magdalenae var. peirsonii (Peirson's milk-vetch) was
originally described as A. peirsonii by Munz and McBurney from two
collections (cotypes) from sand dunes west of Yuma in Imperial County,
California (Munz 1932). One specimen was collected by Munz and
Hitchcock in 1932, while the other was collected by Frank Peirson, for
whom the taxon was named, in 1927. Astragalus peirsonii was variously
included with A. crotalariae var. piscinus (Jepson 1936) and A. niveus
(Barneby 1944), before its affiliation with A. magdalenae was clarified
(Barneby 1958).
Astragalus magdalenae var. peirsonii is a stout, short-lived
perennial reaching 20 to 70 cm (8 to 27 in) high. The stems and leaves
are covered with fine silky hairs and the leaves are 5 to 15 cm (2 to 6
in) long, with 3 to 13 small oblong leaflets. The flowers are dull
purple, arranged in 10- to 17-flowered racemes and the resulting pods
are 2 to 3.5 cm (0.8 to 1.4 in) long, inflated, with a triangular beak.
The variety peirsonii is separated from two other varieties of A.
magdalenae based on the number of leaflets, the length of the
peduncles, and the length and diameter of the fruits. With a length of
4.5 to 5.5 mm (0.2 in), A. magdalenae var. peirsonii has the largest
seeds of any Astragalus in North America (Barneby 1964).
Astragalus magdalenae var. peirsonii grows in the Sonoran Desert,
on the slopes and hollows of windblown dunes. According to Munz and
Keck (1959) and Barneby (1964), it is known from the Borrego Valley, in
San Diego County, and the Algodones Dunes, in Imperial County, which
extend just south of the International Border into northeastern Baja
California (Westec 1977). Since the proposed rule was published, the
Service has also become aware of collections of A. magdalenae var.
peirsonii from the Gran Desierto in Sonora, Mexico. The specimens from
Sonora were all collected south and southeast of the Sierra Pinacate
lava field in the southern Gran Desierto over a 15-year period (Richard
Felger, Drylands Institute, pers. comm. 1996; J. Rebman, San Diego
Museum of Natural History, pers. comm. 1996; Alan Romspert, California
Desert Studies Center, pers. comm. 1996; Gary D. Wallace, Service,
pers. comm. 1996). The Service is unaware of any information that A.
magdalenae var. peirsonii occurs elsewhere in the Gran Desierto, and
could not locate any information on size of populations that occur in
the Gran Desierto. Although Wiggins (1980) included San Felipe, in
central Baja California, within the range of this taxon, no collections
of variety peirsonii could be located from that region. Botanists
preparing a flora for the area have located other varieties of A.
magdalenae from the dunes of the San Felipe area, but not variety
peirsonii (Jon Rebman, San Diego Museum of Natural History Herbarium,
pers. comm. 1996). A report of A. magdalenae var. peirsonii occurring
in the dunes west-southwest of the Salton Sea in Imperial County,
California, remains unconfirmed (CDFG, Natural Diversity Database
record 1996).
Within San Diego County, Astragalus magdalenae var. peirsonii has
not been seen for several decades (M. Beauchamp, Pacific Southwest
Biological Services, pers. comm. 1996). Surveys in 1978 failed to
locate the variety in the Borrego Valley where it was originally
collected (Spolsky 1978), and a portion of the dune habitat in Borrego
Valley is currently used as a county landfill (Jim Dice, CDFG, pers.
comm. 1996). A major landowner in the area, the California Department
of Parks and Recreation, does not have any information or reports of
this taxon occurring in Anza Borrego Desert State Park (Paul Johnson,
Anza Borrego Desert State Park, pers. comm. 1996).
The only location where the Service could confirm that Astragalus
magdalenae var. peirsonii is extant in the United States is on the
Algodones Dunes, an active dune system located southeast of the Salton
Sea and extending south about 2.5 km (1.5 mi) into Baja California
(Westec 1977, BLM 1987). In 1977, a survey of the sensitive plant taxa
of the Algodones Dunes showed that A. magdalenae var. peirsonii was
distributed in what can be considered one extensive population of
scattered colonies spanning the length of the dune system, primarily
along its western side. The Algodones Dunes are a linear dune system,
approximately 64 km (40 mi) long and 8 km (5 mi) wide, supporting
several species of plants and animals that occur only in dune systems
in the Sonoran Desert (Westec 1977, BLM 1987). Managed by the BLM, the
Algodones Dunes, also known as the Imperial Sand Dunes Recreation Area,
are the most intensively used OHV recreation area in California's
deserts, attracting several hundred thousand OHV users each year (BLM
1987).
[[Page 53600]]
The primary threat to Astragalus magdalenae var. peirsonii is
destruction of individuals and dune habitat from OHV use and the
recreational development associated with it. Approximately 75 percent
of the Algodones Dune system is open to motorized vehicle use (BLM
1987) and between 75 and 80 percent of all known colonies of A.
magdalenae var. peirsonii in 1977 are within those areas. The greatest
concentration of colonies was located in the central dunes, within a 4-
mile radius of the southern end of Gecko Road (Westec 1977), an area
that has since been more fully developed for recreational use (BLM
1987). Surveyors in 1977 reported that no seedlings of any of the
sensitive plant taxa, including A. magdalenae var. peirsonii, could be
found in areas receiving heavy OHV use (Westec 1977), and large areas
receiving intensive OHV use showed a virtually complete loss of all
plant cover (Bury and Luckenback 1983). By 1990, colonies of mature A.
magdalenae var. peirsonii plants could not be located in areas of heavy
OHV use and colonies located in areas receiving moderate OHV use had
lower reproductive success and poorer health than comparable
populations located in areas closed to OHVs (ECOS 1990).
Approximately 9,300 ha (23,000 ac), or 18 percent, of the Algodones
Dunes has been closed to motorized vehicle use since 1972 (BLM 1987).
In 1994, most of this closed area and an extension to the north, a
total of 13,060 ha (32,240 ac) or about 25 percent of the dune system,
was designated the North Algodones Dunes Wilderness (CDPA 1994; T.
Finger, BLM, pers. comm. 1996). The wilderness, a linear section of the
northern dunes, is bounded by an area designated for intensive OHV use
to the north and by Highway 78 and an intensively-used OHV area to the
south. Approximately 20-25 percent of the known colonies of Astragalus
magdalenae var. peirsonii occur in the wilderness area (Westec 1977).
Astragalus tricarinatus (triple-ribbed milk-vetch) was described by
Asa Gray (1876) based on a specimen collected by Charles C. Parry at
Whitewater Canyon, Riverside County in 1876. Per Axel Rydberg (1927)
transferred this species to the segregate genus Hamosa, as H.
tricarinata. This combination was not widely accepted and the species
continues to be listed as A. tricarinatus in floristic treatments
(Jepson 1936, Munz and Keck 1959, Shreve and Wiggins 1964, Munz 1974,
Spellenberg 1993).
Astragalus tricarinatus is a short-lived erect perennial, reaching
5 to 25 cm (2 to 10 in) in height. Leaves are 7 to 20 cm (1.3 to 2.7
in) long, with 17 to 20 leaflets that are silvery strigose on the upper
surface. The flowers are white or pale cream-colored, arranged in loose
6-to 17-flowered racemes. The fruit is narrow, 2 to 4 cm (0.8 to 1.6
in) long, glabrous and distinctly three-ribbed.
Astragalus tricarinatus grows in sandy and gravelly soils in dry
washes, at the base of canyon slopes, and on steep scree slopes of
decomposed granite (Barrows 1987b, Sanders and Thomas Olsen Associates
1995). Although A. tricarinatus is a short-lived perennial, its numbers
fluctuate significantly from year to year and the species may not be
present above-ground in drought years (Barrows 1987b; Robin Kobaly,
BLM, pers. comm. 1996).
According to Munz and Keck (1959) the range of Astragalus
tricarinatus extends from Morongo and Whitewater Pass, located at the
north end of the Coachella Valley, south to the Orocopia Mountains.
During the last 2 decades, A. tricarinatus has been located in four
areas--in the north at Big Morongo Canyon and its tributary canyons; at
two nearby locations at Whitewater Canyon and Mission Creek; and at a
disjunct location about 40 miles to the south in Agua Alta Canyon.
The occurrence of Astragalus tricarinatus in Agua Alta Canyon was
discovered in 1985 by Jon Stewart and consisted of only one plant. The
taxon had not been seen during previous explorations of this canyon
wash nor has it been seen since, although the site was searched the
following two years (Jon Stewart, in litt. 1985; J. Stewart, pers.
comm., 1996). In the north, Whitewater Canyon is the type locality for
A. tricarinatus and specimens were collected there in the 1940s, 1960s
and mid 1980s (A. Sanders, herbarium of University of California at
Riverside, pers. comm. 1996). A search of the east ridge of Whitewater
Canyon over several days in 1995 failed to locate a population there,
although a single immature plant was discovered in alluvial sands from
the wash (A. Sanders, pers. comm., 1996). The Mission Creek occurrence
is also known from only one plant, discovered during 1995 surveys for
this taxon (Sanders and Thomas Olsen Associates 1995). Although A.
tricarinatus has the potential to occur in other canyons within its
range, populations of greater than one plant are currently known only
from Big Morongo Canyon and may occur at Whitewater Canyon.
Astragalus tricarinatus at Big Morongo Canyon is within the Big
Morongo Preserve, managed by the BLM. In 1984 one site in Big Morongo
Canyon that supported fewer than 10 plants was bulldozed during
maintenance for a gas pipeline (Barrows 1987b). No plants have been
found at that site since 1984, although searches were conducted in
1987, 1992, and 1994 (Barrows 1987b, Carol Jacobsen, in litt. 1993,
Mathews 1994). A. tricarinatus also occurs 3 to 4 km (2 mi) farther
down Big Morongo Canyon and within the mouths of two tributary canyons.
In 1992 botanists surveyed this region and counted 70 plants in 5
groupings scattered along a 2 to 3 km (1 to 2 mi) stretch of canyon
floor (C. Jacobsen, in litt. 1993). In 1993, 33 plants were counted
along this same stretch (Roland DeGouvenian, BLM, in litt. 1993) and in
1994 a total of 20 plants in 5 patches were found there (Mathews 1994).
In spring of 1995, the Four Corners Pipeline Company conducted
substantial earth-moving activities along this stretch of Big Morongo
Canyon to realign segments of a crude oil pipeline that had been
exposed during winter storms in 1992-1993 (Service 1995). In 1996,
weather conditions appeared poor for growth of Astragalus tricarinatus.
BLM staff conducted limited surveys and found no plants in the canyon,
in either disturbed or undisturbed areas (R. Kobaly, pers. comm. 1996).
Astragalus tricarinatus is threatened by maintenance activities for
the crude oil pipeline which runs through its habitat at Big Morongo
Canyon and by vehicle use in the canyons. Its limited number of
individuals make it especially vulnerable to unanticipated events, such
as pipeline leaks, breaks, or emergency repairs.
Previous Federal Action
Federal action on one of these plants began as a result of section
12 of the Act, which directed the Secretary of the Smithsonian
Institution to prepare a report on those plants considered to be
endangered, threatened, or extinct in the United States. This report,
designated as House Document No. 94-51, was presented to Congress on
January 9, 1975, and recommended Astragalus jaegerianus for endangered
status. The Service published a notice in the July 1, 1975, Federal
Register (40 FR 27823), of its acceptance of the report as a petition
within the context of section 4(c)(2) of the Act (petition provisions
are now found in section 4(b)(3)) and of the Service's intention
thereby to review the status of the plant taxa named therein, including
Astragalus jaegerianus. The Service published a proposal in the June
16, 1976, Federal Register (41 FR 24523) to determine approximately
1,700 vascular plant species to be endangered species pursuant to
section
[[Page 53601]]
4 of the Act. Astragalus jaegerianus was included in the June 16, 1976,
Federal Register document.
General comments received in regard to the 1976 proposal were
summarized in the April 26, 1978, Federal Register (43 FR 17909). The
Act Amendments of 1978 required that all proposals over two years old
be withdrawn. A one-year grace period was given to those proposals
already more than two years old. In the December 10, 1979, Federal
Register (44 FR 70796), the Service published a notice of withdrawal of
the June 6, 1976, proposal, along with four other proposals that had
expired.
The Service published an updated Notice of Review for plants in the
December 15, 1980 Federal Register (45 FR 82480). This notice included
Astragalus jaegerianus, A. lentiginosus var. coachellae, A.
lentiginosus var. piscinensis, and A. magdalenae var. peirsonii as
category 1 candidate species (species for which information in the
Service's possession was sufficient to support proposals for listing).
On November 28, 1983, the Service published in the Federal Register a
supplement to the Notice of Review (48 FR 53640), in which A.
jaegerianus and A. magdalenae var. peirsonii were included as category
2 candidate species (species for which information in the Service's
possession indicated listing may be appropriate, but for which
additional information was needed to support a proposed rule). The
plant notice was again revised on September 27, 1985 (50 FR 39526), and
on February 21, 1990 (55 FR 6184). In both of these notices, both
varieties of Astragalus lentiginosus were included as category 1
candidate species, while A. jaegerianus and A. magdalenae var.
peirsonii were included as a category 2 candidate species. Astragalus
tricarinatus was included in the February 21, 1990, notice for the
first time as a category 2 candidate (the use of candidate categories
has subsequently been discontinued by the Service (55 FR 7596)).
Section 4(b)(3)(B) of the Act requires the Secretary to make
certain findings on pending petitions within 12 months of their
receipt. Section 2(b)(1) of the 1982 amendments further requires that
all petitions pending on October 13, 1982, be treated as having been
newly submitted on that date. This was the case for Astragalus
jaegerianus because the 1975 Smithsonian report had been accepted as a
petition. On October 13, 1983, the Service found that the petitioned
listing of this species was warranted, but precluded by other pending
listing actions, in accordance with section 4(b)(3)(B)(iii) of the Act.
Notification of this finding was published on January 20, 1984 (49 FR
2485). The Act requires that following such a warranted but precluded
finding, the petition be recycled pursuant to section 4(b)(3)(C)(i).
The finding was reviewed in October of 1984, 1985, 1986, 1987, 1988,
1989, 1990, and 1991. Publication of the proposed rule constituted the
warranted finding for the petitioned taxa.
On May 8, 1992, the Service published a proposed rule in the
Federal Register (57 FR 19844) to list seven Astragalus taxa, including
the five taxa addressed in this rule. Astragalus jaegerianus and A.
magdalenae var. peirsonii were included in the proposal on the basis of
new information gathered during surveys performed in 1990 and 1991 that
resulted in their elevation to category 1 candidate status. Astragalus
tricarinatus was included in the proposal after a review of existing
information indicated that the species should be elevated to category 1
candidate status and that listing was warranted. The taxa included in
the proposed rule but not addressed in this document, A. lentiginosus
var. micans and A. lentiginosus var. sesquimetralis, are being
withdrawn and are addressed in a separate document published
concurrently in the proposed rule section of this issue of the Federal
Register.
The processing of this final rule conforms with the Service's Final
Listing Priority Guidance for Fiscal Year (FY) 1998 and 1999, published
in the Federal Register on May 8, 1998 (63 FR 25502). The guidance
clarifies the order in which the Service will process rulemakings. The
guidance calls for giving highest priority to handling emergency
situations (Tier 1), the second highest priority (Tier 2) includes
actions to--resolve the listing status of the outstanding proposed
listings, process new proposals to add species to the lists, and
process administrative petition findings on petitions to list, delist,
and reclassify species. This final rule for five desert milk-vetch
species from California falls under Tier 2. The species discussed in
this rule face high magnitude threats to their continued existence.
Tier 3 includes processing of critical habitat designations.
Comments received during the original comment period and the re-
opening of the public comment period in September 1996 (61 FR 46430)
for the proposed rule have resulted in new information that has been
incorporated into this final rule and the concurrently published
withdrawal for two of the species originally proposed for listing in
1992.
Summary of Comments and Recommendations
In the May 8, 1992, proposed rule and associated notifications, all
interested parties were requested to submit factual reports or
information that might contribute to the development of a final rule. A
60-day comment period closed on July 7, 1992. A final determination on
the proposal was delayed by other listing priorities, a limited budget,
and the Federal moratorium on final listing actions. Due to the amount
of time that had passed since the proposed rule was published, the
Service opened a second comment period for 45 days on September 3, 1996
(61 FR 46430). Appropriate State and Federal agencies, County
governments, scientific organizations, and other interested parties
were contacted and requested to comment. During the comment periods
newspaper notices were published in the Palm Springs Desert Sun (June
4, 1992; October 5, 1996), the Imperial Valley Press (May 28, 1992;
October 3, 1996), the San Bernardino Sun (June 2, 1992; October 7,
1996), the Barstow Desert Dispatch (October 3, 1996), and the Inyo
Register (May 29, 1992; October 2, 1996), inviting public comments on
the proposed rule.
Peer Review
In accordance with the interagency Peer Review Policy published on
July 1, 1994 (59 FR 34270), the Service solicited the expert opinions
of three independent specialists regarding pertinent scientific or
commercial data and assumptions relating to the taxonomy, population
estimations, and supportive biological and ecological information for
taxa under consideration for listing. The purpose of such review is to
ensure listing decisions are based on scientifically sound data,
assumptions, and analyses, including input of appropriate experts and
specialists. Two specialists responded and their comments on the
biology, population numbers and sizes, and threats, have been
incorporated into this rule and the concurrently published withdrawal.
During the two comment periods, the Service received comments from
23 parties addressing the listing of the 7 taxa included in the
proposed rule. Twelve commenters supported some or all of the proposed
action, six commenters opposed some or all of the proposed action, and
five commenters provided information or raised issues about which they
were concerned. Technical information provided by commenters has been
incorporated into this rule where appropriate. Comments
[[Page 53602]]
have been organized into specific issues. These issues and the
Service's response to each issue are summarized as follows.
Issue 1: Two commenters were concerned that the listing of
varieties is improper and constitutes a misuse of the Act. One of these
commenters elaborated that since subspecies contain the same genetic
makeup as the species with a slight variation, ``(i)f we save the
species as a whole, we will have the genetic basis from which the
subspecies evolved.''
Service Response: Section 3(16) of the Act states that ``(t)he term
`species' includes any subspecies of fish or wildlife or plants . . .
which interbreeds when mature.'' In response to concerns from the
Smithsonian Institution that the definition included subspecies but not
varieties, the Service discussed in a Federal Register notice published
on April 26, 1978 (43 FR 17912), the common use of both terms by
botanists, and concluded that plants named as ``varieties'' are
essentially subspecies and, therefore, ``species'' as defined in the
Act.
Issue 2: Two commenters asserted that insufficient data are
presented in the proposal on which to base the listing of these plants.
One of these commenters believed that not enough information was
presented about the biology of the species and that information
concerning the types of OHV activity that threaten the taxa should be
described more thoroughly.
Service Response: Section 4 of the Act directs the Service to use
the best scientific and commercial data available in preparation of
proposed and final rules. After reviewing new information available
since the original proposal was published and reevaluating existing
information, the Service is withdrawing the proposals to list two of
the taxa included in the proposed rule. For the five taxa being listed
in this final rule, the Service has presented adequate detail to
indicate the types of activities that threaten these taxa and to
discuss their biology. Readers wishing additional detailed information
should refer to the documents cited in the text.
Issue 3: Two commenters expressed the opinion that the listing of
Astragalus lentiginosus var. piscinensis is unnecessary because
sufficient protection from grazing and OHV use was provided by the
multi-agency management of the Fish Slough Area of Critical
Environmental Concern (ACEC). One commenter stated that no data exists
documenting that the species is threatened by OHV use, agricultural
discing, predation by rabbits, and groundwater pumping.
Service Response: The Service acknowledges that agricultural
discing is not currently known to be a threat to this taxon. Vehicle
use has, and continues to result in the loss of some habitat for
Astragalus lentiginosus var. piscinensis south of BLM Spring, on the
east side of the Slough, where a road currently bisects one population
(BLM, in litt. 1993; Diane Steeck, Service, pers. obs. 1996) and there
has been some OHV use of the area noted in the west-central area of the
Slough as recently as 1992 (P. Novak, in lit. 1992). The soil
compaction and topographical changes caused by roads can alter flooding
and draining of slough habitats, resulting in changes in length of
seasonal inundation to which the milk-vetch is subjected. Mazer and
Travers (1992) and Novak (in litt. 1992) have documented substantial
herbivory of the flowers and fruit of A. lentiginosus var. piscinensis
at Fish Slough.
The Service recognizes the efforts of all agencies involved in the
establishment of the Fish Slough ACEC and those cooperating in the
management of the ACEC. However, the suite of factors that threaten
Astragalus lentiginosus var. piscinensis are complex. Because of the
long narrow configuration of the Slough, bounded by uplands on both
sides, the specific alkali wetland habitat required by A. lentiginosus
var. piscinensis is limited. Human activities or natural changes in the
landscape that cause an increase in the area of seasonal flooding of
alkali habitat have decreased the habitat suitable for this taxon,
which tolerates seasonally moist, but not flooded soils. Monitoring
conducted by the BLM suggests a lack of recruitment in one population
of A. lentiginosus var. piscinensis in the central region of Fish
Slough. The reasons for this are as yet unexplained, but may include
rabbit herbivory or larger landscape changes (alterations in soil
hydrology or chemistry) that result in a decline in habitat
suitability.
The Service recognizes the efforts of the LADWP to protect
Astragalus lentiginosus var. piscinensis from the direct effects of
trampling in the north region of the Slough by constructing a fenced
exclosure, and commends the efforts of the BLM and LADWP to monitor the
status of the plant. The Service also recognizes that conflicts that
arise in the management of the Slough have not been easily resolved in
the past and that the past modifications of the slough environment have
caused changes in the hydrology that are not well understood nor easily
returned to their original condition. The Service maintains that
despite the best intentions of the current managing committee for the
Fish Slough ACEC, the threats facing the limited number of individuals
of A. lentiginosus var. piscinensis are important enough to warrant its
listing as threatened.
A draft Owens Basin Wetland and Aquatic Species Recovery Plan was
produced by the Service in 1996 that addressed Astragalus lentiginosus
var. piscinensis, two endangered fish species, and selected species of
concern. Public and agency comment on this plan was solicited during
two public comment periods--August 26, 1996, to October 25, 1996, and
January 13, 1997, to April 14, 1997. The Service is currently revising
the recovery criteria and discussion of A. lentiginosus var.
piscinensis to more accurately reflect the current knowledge of the
species' status and the activities needed to ensure its protection and
recovery in the Fish Slough ecosystem. Additional discussions of
Astragalus lentiginosus var. piscinensis are included under the
``Summary of Factors Affecting the Species'' section of this final
rule.
Issue 4: Two commenters in 1992 suggested that livestock grazing is
compatible with maintaining populations of Astragalus lentiginosus var.
piscinensis and one commenter, in 1996, stated that the Service did not
provide adequate evidence to support the conclusion that grazing was a
threat to this taxon. In 1996, one of the parties used data collected
by biologists from the grazed and ungrazed areas on LADWP lands to
conclude that, from 1991 to 1996, ``(t)he areas grazed by livestock
show an 8 percent increase in vetch [sic] populations.'' and ``(t)he
ungrazed area shows a 42 percent reduction in vetch [sic] numbers.''
Service Response: The LADWP gathered population trend data from 5
plots (radius 3.6 m (11.8 ft)) in the Fish Slough ecosystem from 1991
to 1996 (LADWP, in litt. 1996; Paula Hubbard, LADWP, pers. comm. 1996).
Two plots are located in the cattle exclosure in north Fish Slough and
have been inaccessible to cattle since 1991, one plot is north of this
exclosure in a pasture that receives cattle use, and two more are in
the middle region of Fish Slough, north of BLM Spring, in an area also
used by cattle.
The monitoring data indicate that the total number of plants in the
three plots from the grazed area consisted of 16 seedlings, 24 mature
plants, 0 immature plants in 1991 and 14 seedlings, 25 mature plants, 4
immature plants in 1996. Plots in the ungrazed exclosure supported 56
seedlings, 72 mature plants, 0 immature plants in 1991 and 0 seedlings,
83 mature plants, 1
[[Page 53603]]
immature plant in 1996. In arriving at the stated percentage increases
and declines the commenter used counts of total plants. Typically, when
biologists analyze simple changes in the sizes of plant populations,
they focus on changes in the number of mature individuals (plants of
reproductive size or age). Seedlings are typically not grouped with
mature plants because it is common for many more seedlings to emerge
initially than will survive to reproduce.
In the data described above, from 1991 to 1996 the combined number
of mature Astragalus lentiginosus var. piscinensis plants increased by
1 in the grazed plots (from 24 to 25 plants, a 4 percent increase) and
increased by 11 individuals in the ungrazed plots (from 72 to 83
plants, a 15 percent increase). These data show a slight increase in
numbers of mature plants in grazed plots and a larger increase in the
number of mature individuals in ungrazed plots from 1991 to 1996.
Several aspects of the data illustrate the need for a longer monitoring
period before drawing conclusions, however. First, in both grazed and
ungrazed areas the multiple plots failed to show consistent trends;
that is, of the two ungrazed plots, one showed an increase in the
number of mature plants from 1991 to 1996, the other a decrease. A
similar situation occurred in the grazed plots. The small number of
plots sampled make the data very susceptible to site differences that
may result from environmental conditions other than grazing. Secondly,
numbers of plants within a single plot fluctuated from year to year;
that is, none of the five plots showed a consistently increasing or
consistently declining trend. In this situation, using only two years
of data from the data set (for example, considering only the years 1991
and 1996) can lead to erroneous conclusions. These data suggest that
population growth is occurring in the north Fish Slough Area and north
of BLM Springs in both grazed and ungrazed areas. This potential growth
is important, since recruitment has not been observed in one area in
the central zone of the Slough that BLM has monitored since 1991.
The Service concludes that data collected by LADWP do not
conclusively demonstrate that Astragalus lentiginosus var. piscinensis
plants located in plots in the grazed areas fared any better or worse
than those in the ungrazed exclosures during the past five years. If
cattle grazing will continue in habitat for A. lentiginosus var.
piscinensis at Fish Slough, the Service recommends increasing the
number of monitoring plots in both grazed and ungrazed areas to help
clarify the relationship between cattle grazing and population dynamics
of A. lentiginosus var. piscinensis. The Service remains concerned
about the effects of cattle grazing on the alkali wetland habitat that
supports A. lentiginosus var. piscinensis, including the potential for
grazing to cause changes in the composition of the plant community or
maintain changes that have already occurred, and the potential for the
creation of cattle trails to alter the topography and change drainage
patterns.
Issue 5: One commenter suggested that listing Astragalus
lentiginosus var. coachellae would be unnecessary if a conservation
plan for that species could be developed, perhaps by incorporating it
into the management of the existing Coachella Valley Preserve.
Service response: The Coachella Valley Preserve System, established
primarily to protect the Coachella Valley fringe-toed lizard (Uma
inornata), contains populations of Astragalus lentiginosus var.
coachellae on three preserve lands in the south and central range of
this taxon. No populations in the northern range of A. lentiginosus
var. coachellae are currently protected. Within the last two years, the
Coachella Valley Association of Governments and the Coachella Valley
Mountains Conservancy have begun a planning process to address
conflicts between conservation needs and economic development within a
4500sq km (1,850 sq mi) area that includes the Coachella Valley and
surrounding region in Riverside County. The expected result of this
process, a Coachella Valley Multispecies Habitat Conservation Plan
(CVMSHCP), will address conservation needs for 12 species that are
listed or proposed for listing, 21 candidate species, and 17 additional
species of concern. Astragalus lentiginosus var. coachellae is to be
addressed in the plan.
The Service recognizes the importance of such a planning process
for the Coachella Valley and is participating through the Scientific
Advisory Committee, as are other agencies responsible for resource
protection in the area. The planning process is in its initial stages,
however, and its funding is not secured, nor is a product yet available
that can be implemented. Thus, development of the CVMSHCP does not
provide current protection for Astragalus lentiginosus var. coachellae
and is not sufficient to preclude the need to list the species at this
time.
Issue 6: One commenter speculated that the proposed rule had been
promulgated to fulfill the requirements of a settlement resulting from
the suit filed against the Service by the California Native Plant
Society (CNPS).
Service Response: The procedures for designating species as
threatened or endangered are outlined in section 4(a)(1) of the Act and
promulgated regulations (50 CFR part 424). As discussed in detail in
the ``Background'' section of this rule, Federal action on several of
these taxa began as early as 1975. The proposed rule did, in fact,
comply with the terms and conditions of the settlement stemming from
the CNPS suit. While the CNPS lawsuit settlement may have accelerated
the rate at which species were proposed for listing, the suit did not
address final determinations, nor did it change the standards by which
species are evaluated for potential listing.
Issue 7: Two commenters expressed concern over potential land use
restrictions where listed species occur. One of these commenters stated
that the listing of these plants ''. . . would result in large acreage
throughout the west being ``locked up'' to preserve these forbs or
weeds.'' The other commenter believed that the Service's true intent is
''. . . full control over land management activities . . .'' on
private, as well as public lands.
Service Response: Listing of plant species under the Act triggers
the protective measures of section 9 of the Act, including prohibiting
the collection, destruction, or damaging of these species on any area
if it is in knowing violation of any State law (see the ``Available
Conservation Measures'' section of this rule for a complete
discussion). In addition, the Act requires that Federal agencies, in
consultation with the Service, insure that activities they authorize,
fund, or carry out are not likely to jeopardize the continued existence
of any listed species, or destroy or adversely modify its critical
habitat, if any is designated. Thus for any activity on private land
requiring Federal action (such as a section 404 permit under the Clean
Water Act (33 U.S.C. 1251-1376)) that may affect listed species, the
Federal action agency is required to enter into the section 7
consultation process with the Service.
These protections afforded to plants listed under the Act do not
``lock up'' private land. Conservation measures and recovery planning
for these species rarely include recommendations for land acquisition
or easements involving private landowners. These efforts would be
undertaken with the cooperation of
[[Page 53604]]
the landowners. In most cases, private landowners are not precluded
from utilizing their land in the manner originally intended.
Issue 8: One commenter questioned whether the listing of these
plants could be justified in light of the numerous species already
listed and the thousands more that are candidates for listing, and
questioned what benefit there would be to mankind in saving these
species. The commenter pointed out that because ``the law of the land
is survival of the fittest,'' certain species were not meant to survive
forever and a niche vacated by one species would be taken over by
another.
Service Response: In enacting the Act in 1973, Congress recognized
that ``various species of fish, wildlife, and plants in the United
States have been rendered extinct as a consequence of economic growth
and development untempered by adequate concern and conservation.'' It
further stated ``these species of fish, wildlife, and plants are of
aesthetic, ecological, educational, historical, recreational, and
scientific value to the Nation and its people.'' Although it is true
that extinction is a natural process, it is human-caused extinction
that the Act is attempting to minimize. A number of studies have
estimated rates of extinction throughout geologic time and, more
recently, since the influence of European man. The studies indicate
that rates of extinction over the past 200 years are unparalleled in
human history, and extinction rates are continuing to increase (Reid
and Miller 1989, Raven 1993). The Service concludes that proceeding
with this listing action is within the intent of the Act.
Issue 9: One commenter stated that the Service must prepare an
Environmental Impact Statement (EIS) and a Takings Implication
Assessment before issuing a final rule.
Service response: For the reasons set out in the National
Environmental Policy Act (NEPA) section of this document, the Service
has determined that the rules issued pursuant to section 4(a) of the
Act do not require the preparation of an EIS. In Pacific Legal
Foundation v. Andrus, 657 F.2d 829 (6th Circuit 1981), and subsequent
cases, the Federal courts have held that an EIS is not required for
listing under the Act. The Sixth Circuit decision noted that preparing
an EIS on listing actions does not further the goals of NEPA or the
Act.
Takings Implications Assessments (TIAs) are prepared pursuant to
the requirements of Executive Order 12630, ``Government Actions and
Interference with Constitutionally Protected Property Rights.'' The
Attorney General has issued guidelines to the Department of the
Interior (Department) regarding TIAs. The Attorney General's guidelines
state that TIAs used to analyze the potential for Fifth Amendment
taking claims are to be prepared after, rather than before, an agency
makes a restricted discretionary decision. In enacting the Act,
Congress required the Department to list a species based solely upon
scientific and commercial data. The Service may not withhold a listing
decision based upon economic concerns. Therefore, any TIA that may be
required for a listing action would be prepared only after the final
determination to list a species has been made.
Summary of Factors Affecting the Species
Section 4 of the Act and regulations (50 CFR part 424) promulgated
to implement the listing provisions of the Act set forth the procedures
for adding species to the Federal lists of endangered and threatened
species. A species may be determined to be an endangered or threatened
species due to one or more of the five factors described in section
4(a)(1). These factors and their application to Astragalus jaegerianus
Munz (Lane Mountain milk-vetch), A. lentiginosus Douglas ex Hook. var.
coachellae Barneby (Coachella Valley milk-vetch), A. lentiginosus
Douglas ex Hook. var. piscinensis Barneby (Fish Slough milk-vetch), A.
magdalenae Greene var. peirsonii (Munz & McBurney in Munz) Barneby
(Peirson's milk-vetch) and A. tricarinatus A. Gray (triple-ribbed milk-
vetch) are as follows:
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range.
All five taxa are threatened by loss of habitat due to one or more
of the following factors--mining, urbanization in the form of
commercial and residential development, motorized vehicle recreation
and unauthorized motor vehicle use, pipeline maintenance activities,
and loss of habitat due to modifications of a wetland ecosystem.
Astragalus jaegerianus is threatened by dry wash gold mining at the
Lane Mountain site and potentially by a materials lease mining
operation at one northern site on BLM lands. The majority of Lane
Mountain Mesa, where A. jaegerianus occurs, and all of the adjacent
Coolgardie Mesa, are covered by mining claims (BLM in litt. 1992; T.
Eagen, pers. comm. 1996). Dry wash gold mining operations result in
removal of vegetation as surface soils are mined. Mining that falls
under the definition of ``casual use'' also can destroy the habitat of
A. jaegerianus in the Lane Mountain area. ``Casual use'' mining is
small scale recreational mining that can be carried out by a claim
holder without submission of any plan or notice to BLM. In 1993,
Coolgardie Mesa experienced a sharp increase in recreational gold
mining. Within a few miles of the Lane Mountain population of A.
jaegerianus, the BLM recorded 300 to 400 people mining within a 2.5 sq
km (1 sq mi) area during a single weekend. Joshua trees (Yucca
brevifolia) and other vegetation were uprooted and destroyed in this
process (T. Eagen, pers. comm. 1996). The BLM has since developed
guidelines to limit activities that fall under the definition of
``casual use'' mining. Under the new definition, ``casual use'' mining
is limited to the use of non-mechanized tools and cannot result in the
destruction of perennial vegetation. This still permits the digging of
mining pits and soil surface disturbance that degrade habitat and could
impact A. jaegerianus. Past disturbance has also resulted in an
increase in non-native annual grasses in the area (T. Eagen, pers.
comm. 1996) and this ongoing small scale disturbance provides new
opportunities for further invasions of these highly competitive
species. The sites where A. jaegerianus occurs on BLM land to the
north, while not currently under claim, are available for claim, should
mining interest renew in that area (J. Aardahl, BLM, pers. comm. 1997).
Additional discussion of mining regulations can be found under Factor D
of the ``Summary of Factors Affecting the Species Section'' of this
rule.
To the north, Astragalus jaegerianus is also threatened by
proliferation of OHV trails/tracks and cross country vehicle travel
associated with decorative rock extraction, the potential for other
mining exploration, and general recreation. Although the extraction
activity is by permit through BLM, permit violations, including cross
country vehicle travel and rock extraction outside the bounds of the
permitted area occurred numerous times in 1995-1996, within and
adjacent to A. jaegerianus habitat (T. Eagen, pers. comm. 1996). At
least one of the populations of A. jaegerianus in the north is already
bisected by a road (Bagley, in litt. 1985), and other roads/trails
adjacent to the population are a concern. Recreational vehicle activity
is also causing a proliferation of tracks through potential habitat
just south of
[[Page 53605]]
the northern populations. At the Lane Mountain site, tracks have been
seen near A. jaegerianus habitat. The area is laced with roads, and the
majority of this small population occurs within about 100 m (300 ft) of
a road, with some plants within 5 m (15 ft) of the road (C. Rutherford,
pers. comm. 1996).
Within habitat for Astragalus jaegerianus on DOD lands, military
maneuvers at the NTC at Fort Irwin, or National Guard training in 1992,
may have destroyed plants (Steve Ahmann, NTC, in litt. 1993). Following
this incident and the publication of the proposed rule, the military
constructed a wire fence to restrict vehicle access from 260 ha 650 ac
in 1993, which includes all of the A. jaegerianus plants known on
military lands (S. Ahmann, in litt. 1993). No breaches of the fence
have occurred in the past 2 years, although a military vehicle breached
the fence three years ago (Ahmann, pers. comm. 1996). The military
currently uses these fenced lands only for compass orienteering
exercises. Impacts to this taxon from military training may increase
following the expansion of the NTC at Fort Irwin. Although the size and
location of the expansion has not been decided, it may encompass
several hundred square miles of BLM lands including those which support
A. jaegerianus.
Astragalus lentiginosus var. coachellae (Coachella Valley milk-
vetch) is currently known from fewer than 25 occurrences in the
Coachella Valley. Habitat destruction in the Coachella Valley began
with the introduction of agriculture over a century ago, but
urbanization has accelerated greatly in the past 40 years. In the 20
years from 1970 to 1990, the human population of the Coachella Valley
more than doubled from under 100,000 to over 215,000 people. In the
next 20 years the human population of the Coachella Valley is expected
to again double, reaching a total of almost 500,000 people by the year
2010 (Coachella Valley Association of Governments, in litt. 1997).
Significant dune habitats that once occurred along the southwest edge
of the Coachella Valley, at the base of the Santa Rosa Mountains, now
support cities such as Rancho Mirage and Palm Desert (Barrows 1987).
Increased urbanization of the area has altered available habitat in the
valley both through direct conversion of land and through alterations
in the sand transport system responsible for the creation and
maintenance of the region's sand habitats (Barrows 1987; A. Sanders,
pers. comm. 1996; K. Barrows, in litt. 1996).
The historical loss of populations of Astragalus lentiginosus var.
coachellae is not known. Since 1986, two occurrences and part of a
third, located adjacent to roads on private land in the southern part
of this taxon's range, have been repeatedly graded and curbs have been
laid over portions of what was previously suitable habitat. Although
they have not been resurveyed, these sites are degraded to the extent
that they are unlikely to support viable populations of A. lentiginosus
var. coachellae. A fourth occurrence, in the same region, was found to
support no plants in 1987, although suitable habitat still remained at
the site. By 1996, this site had been converted to a truck stop and
suitable habitat had been eliminated (Barrows 1987; K. Barrows, in
litt. 1996; K. Barrows, pers. comm. 1996).
Urbanization and development, like that occurring in the Coachella
Valley, result in both direct loss of populations and the restriction
of populations to fragments of suitable habitat. As areas are
increasingly developed, these habitat fragments, especially those
adjacent to roads, may be degraded by vehicle use or roadside
maintenance activities and are often subsequently paved over or
landscaped. Secondary impacts to Astragalus lentiginosus var.
coachellae associated with increased urbanization include habitat
damage from OHV use. OHV use has eliminated plants from a portion of
one population in the northern part of the range of this variety where
a commercial OHV rental operation exists. Plants are now found only on
the margins of this site (K. Barrows, pers. comm. 1996).
Astragalus lentiginosus var. piscinensis is currently restricted to
a 10-km (6-mi) stretch of alkaline flats paralleling Fish Slough on
lands owned and managed by the LADWP and BLM. In 1984, BLM established
an ACEC on these lands to protect the federally endangered Owens
pupfish (Cyprinodon radiosus) and the entire wetland ecosystem. This
ACEC encompasses the range of A. lentiginosus var. piscinensis. The
ACEC is jointly managed by BLM, the Service, CDFG, University of
California Natural Reserve System (NRS), and LADWP. Because of the
availability of water and wetland vegetation at Fish Slough, the area
has sustained extensive human-related uses, beginning with cattle
grazing in the 1860s. Additional discussion of cattle impacts can be
found under Factor E of the ``Summary of Factors Affecting the
Species'' section of this rule. Ferren (1991b) summarized impacts to
botanical resources at Fish Slough, noting that those related to the
enhancement of fisheries (construction of ponds, impoundments, roads,
and ditches) have resulted in the greatest losses to this taxon's
specific alkali habitats. Because of the long narrow configuration of
the Slough, bounded by uplands on both sides, this alkali wetland
habitat is limited in extent. In the west-central zone of Fish Slough,
Fish Slough Lake is expanding, perhaps due to natural geologic
subsidence and/or construction of Red Willow Dam, resulting in loss of
suitable habitat for A. lentiginosus var. piscinensis as the soils
become increasingly saturated for greater portions of the year (Ferren
1991c; W. Ferren, in litt. 1992). Other impoundments created in the
past, some for the protection of endangered fish habitat, have
similarly altered the local hydrology (BLM 1984; Ferren 1991; BLM in
litt. 1993).
Astragalus magdalenae var. peirsonii is currently known to be
extant in the United States only within the Algodones Dunes, where it
is threatened by increasing habitat loss from OHV use and associated
recreational development. Approximately 75 percent of the dune system,
supporting 75 to 80 percent of the colonies of A. magdalenae var.
peirsonii, as mapped in 1977, are open to OHV recreation within the
Imperial Sand Dunes Recreation Area (Westec 1977, BLM 1987). Between
1977 and 1985, OHV use in the Imperial Sand Dunes Recreation Area
increased by over 60 percent (BLM 1987). With the rising popularity of
all-terrain vehicles and the expanding human population in southern
California, use is expected to more than double from 1985 to the year
2000 (BLM 1987). The most recent figures available from the BLM show
that in 1996 the number of recorded visits at the recreation area rose
to over 430,000, an increase of 15 percent from 1994 (BLM, in litt.,
1996).
Of the dune-restricted plant taxa, Astragalus magdalenae var.
peirsonii appears to be the most vulnerable to destruction by OHVs. Its
small stature provides little obstacle to riders (Romspert and Burke
1978, ECOS 1990); the brittle nature of its single stem causes plants
to break, rather than bend, when hit by a vehicle (ECOS 1990); and a
lack of lateral roots may reduce its ability to remain anchored and
survive vehicle-induced damage (Romspert and Burke 1978). In addition,
seedling establishment in A. magdalenae var. peirsonii occurs in winter
and spring (Romspert and Burke 1978), which are also the most popular
periods for recreational riding on the dunes. BLM estimates that an
average winter weekend in the year 2000 will draw
[[Page 53606]]
about 7,000 OHV recreationalists to the dunes (BLM 1987).
Although the condition of Astragalus magdalenae var. peirsonii has
not been documented throughout the dune system since 1977, the
condition of its dune habitat has been declining. In 1977, biologists
noted that no seedlings of any of the sensitive plant taxa could be
found in the dune areas receiving high OHV use, although seedlings were
abundant in other regions of the dunes (Westec 1977). In 1990,
biologists monitoring the dunes noted that no seedlings or colonies of
adult plants of A. magdalenae var. peirsonii could be found in these
high use areas (ECOS 1990). The 1990 study compared colonies of A.
magdalenae var. peirsonii located in areas closed to OHVs to those in
areas receiving moderate OHV use. Biologists found that plants in
moderate use areas had poorer health and lower reproductive success
than those in areas closed to OHVs. In one comparison, 40 percent of
the sampled individuals located in the closed area reproduced, while no
individuals located in the area open to OHVs reproduced (ECOS 1990). As
OHV use of the dunes increases, the amount of dune habitat experiencing
``moderate'' impacts will continue to expand. These results suggest
that OHV use has a detrimental effect on populations beyond that due to
the direct crushing of individuals. Factors such as sand compaction,
disruption of hydrologic factors, or changes in community composition
may also be responsible for the decline of A. magdalenae var. peirsonii
in areas used by OHVs (ECOS 1990).
While loss of colonies and declines in reproductive success and
health of Astragalus magdalenae var. peirsonii have been documented in
areas receiving high and moderate levels of OHV use, a 20,000-ha
(50,000-ac) central section of the dunes has been designated ``limited
use'' under the California Desert Conservation Area Plan (BLM 1980).
According to this plan, the ``limited use'' designation is designed to
protect sensitive resource values, while allowing multiple use.
However, Astragalus magdalenae var. peirsonii colonies in these areas
may decline if present trends continue. Because the area is on a dune
system, the ``limited use'' designation prohibits the construction of
roads or campgrounds within its boundaries, but does not include any
restriction on OHV use of the area. In 1988, BLM constructed a
campground at the south end of Gecko Road, just 3/4 mile north of the
boundary of the ``limited use'' zone and adjacent to the highest
concentration of colonies of A. magdalenae var. peirsonii in the dune
system. This region of dunes was also a Wilderness Study Area (WSA) in
the 1970s and 1980s. When the BLM recommended against designating this
WSA as wilderness in 1989, it cited four reasons for its
recommendations--(1)``* * * the long tradition of motor vehicle use;''
(2) ``* * * the projected continued demand for OHV use;'' (3) ``* * *
the WSA's potential for energy and mineral development;'' and (4) ``* *
* the similarity of the area to a nearby WSA recommended for
wilderness.'' (BLM 1989). While OHV use is expected to increase
throughout the recreation area, OHV use in the former southern WSA is
expected to increase faster than the overall rate, tripling from 1985
to the year 2000 (BLM 1987). In addition, these projections from BLM's
1987 Recreation Area Management Plan did not consider the increase in
dispersed camping that is occurring along the railroad tracks and canal
road that bound the central dunes on their east and west side (A.
Schoeck, BLM, pers. comm. 1997). Camping in these areas facilitates
quick, easy access to the central ``limited use'' dunes for OHV use (D.
Steeck and T. Thomas, Service, pers. obs. 1997). Construction of a
bridge over the All American Canal in the southern portion of the
Algodones Dunes, planned for 1997 but as yet not constructed, will also
increase ease of access to the central dunes, and may thereby encourage
additional OHV use (Service, in litt. 1996). The Service concludes that
the trend for habitat conditions of A. magdalenae var. peirsonii in the
central, limited use, zone of the dunes is one of continuing decline.
Astragalus tricarinatus is known to be extant only in Big Morongo
Canyon. This canyon bottom has been disturbed by pipeline maintenance
activities several times in the last decade and these activities are
likely to continue. One occurrence of fewer than 10 A. tricarinatus
plants at the north end of the canyon was graded during maintenance of
a gas pipeline access road in 1985 and has not been seen since, despite
searches (Barrows 1987b; C. Jacobsen, in litt. 1993; Mathews 1994). In
1995, the Four Corner's Pipeline Company excavated and realigned three
segments of a crude oil pipeline that extended through habitat for A.
tricarinatus in Big Morongo Canyon and had been exposed by streambed
scouring (Service 1994). One section of the realignment extended
through a site that had supported 20 A. tricarinatus plants in 1992.
Plants present at the time of construction were shielded from the
construction zone by protective fencing, and the topsoil scraped from
the site was stockpiled and later replaced (Service 1994; Ted Rado,
consultant, pers. comm. 1996). However, the project, originally
scheduled for October 1994, was not carried out until April 1995, the
period when plants are flowering but before fruits have matured. Any
damage to plants during this period would have resulted in diminished
seed production by the population that year. Astragalus tricarinatus
population sizes fluctuate widely from year to year and may depend on
the persistence of a soil seedbank during years when weather
limitations are unfavorable for growth or reproduction. Due to poor
growing conditions for this taxon throughout the Canyon in 1996, the
effect of this pipeline realignment on A. tricarinatus in Big Morongo
Canyon has not yet been determined (R. Kobaly, BLM, pers. comm. 1996).
Astragalus tricarinatus is threatened by maintenance activities for
the crude oil pipeline which runs through its habitat at Big Morongo
Canyon and by vehicle use in the canyons. Its limited number of
individuals make it especially vulnerable to unanticipated events, such
as pipeline leaks, breaks, or emergency repairs.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Overutilization has not been documented for the five taxa discussed
in this final rule. However, rare taxa have, at times, become
vulnerable to collecting by curiosity seekers as a result of increased
publicity following publication of a listing proposal. The extremely
limited number of Astragalus jaegerianus and A. tricarinatus make them
vulnerable to scientific collectors. The potential for collection of
these plants upon publication of this final rule may increase.
C. Disease or Predation
Disease is not known to be a factor for any of the taxa. Evidence
exists that native herbivores may exert a substantial effect on
reproduction of individual plants of Astragalus lentiginosus var.
piscinensis. It is unclear whether gradual increases in soil saturation
are reducing plant vigor in the central zone of Fish Slough, making
them more vulnerable to attack by native herbivores. Whatever the
causes, infestations of vegetative parts and root systems by phloem-
sucking insects and red ants, respectively, and high rabbit herbivory
have all been reported for individuals of A.
[[Page 53607]]
lentiginosus var. piscinensis in the central zone of Fish Slough (Mazer
and Travers 1992; BLM, in litt. 1993; LADWP, in litt. 1996). Ferren
(1991a) observed rabbit feces adjacent to individuals of A.
lentiginosus var. piscinensis that had been virtually stripped of
leaves, flowers, and seeds. Mazer and Travers (1992) found that plants
in the central western zone of Fish Slough suffered high herbivory
levels when compared to plants in the north section of the Slough. By
August, sampled plants in the central zone of the Slough had 80 percent
of their branches grazed by rabbits or rodents, while in the north zone
of the Slough fewer than 20 percent of branches of sampled plants had
been grazed. It is unknown whether the reduced reproduction of A.
lentiginosus var. piscinensis caused by native herbivores results in
lowered recruitment, or whether native herbivores may be responsible
for the low recruitment seen in certain areas by preferentially feeding
on seedlings. In addition to herbivory by rodents and rabbits, in 1996,
plants of A. lentiginosus var. piscinensis appeared to have been killed
by red ants, probably through damage to the root system (LADWP in litt.
1996).
D. The Inadequacy of Existing Regulatory Mechanisms
Existing regulatory mechanisms that may provide some protection for
these taxa include--(1) the California Endangered Species Act (CESA),
(2) the California Environmental Quality Act (CEQA), (3) the Federal
Endangered Species Act, in those cases where these taxa occur in
habitat occupied by other listed species, (4) the Clean Water Act, (5)
the Federal Land Policy and Management Act, and (6) regional planning
efforts.
Pursuant to the Native Plant Protection Act (chapter 10 section
1900 et seq. of the California Fish and Game Code) and CESA (chapter
1.5 section 2050 et seq. of the Fish and Game Code), the California
Fish and Game Commission listed Astragalus magdalenae var. peirsonii as
endangered in 1979. California Senate Bill 879, passed in 1997 and
effective January 1, 1998, requires individuals to obtain a section
2081(b) permit from CDFG to take a listed species incidental to
otherwise lawful activities, and requires that all impacts be fully
mitigated and all measures be capable of successful implementation.
Astragalus magdalenae var. peirsonii is currently known only from
public lands under BLM management, however, and these CESA provisions
do not apply to Federal agencies. In an attempt to address management
of the Algodones Dune system on an ecosystem basis for the conservation
of its wildlife and botanical resources, the BLM and CDFG developed a
habitat management plan (HMP) for the Algodones Dunes in 1987. The plan
included a monitoring program to track the effects of the 1988
construction of Roadrunner campground and the subsequent increase in
OHV use on the wildlife and vegetation in the central dunes. In the
HMP, the BLM also agreed to establish monitoring transects for
sensitive plants, including A. magdalenae var. peirsonii, in all land
use classes and monitor them every other year until trends were
established. Little of the monitoring specific to sensitive plant
species has been carried out (N. Nicolai, BLM, pers. comm. 1996, J.
Dice, CDFG, pers. comm. 1997). At the Service's request for
distribution and abundance data, the BLM provided only sensitive plant
monitoring data from 1990, and the baseline studies conducted in 1977
and 1978.
In Mexico, the Gran Desierto, where Astragalus magdalenae var.
peirsonii occurs, was designated a UNESCO Biosphere Reserve in 1993.
Although this designation recognizes the unique resource values of the
area, actual enforcement of conservation laws will be dictated by the
availability of the limited resources of the Mexican government. The
status of A. magdalenae var. peirsonii in Mexico is not well
documented.
CEQA requires a full disclosure of potential environmental impacts
of proposed projects. The public agency with primary authority or
jurisdiction over the project is designated as the lead agency and is
responsible for conducting a review of the project and consulting with
other agencies concerned with the resources affected by the project.
Section 15065 of the CEQA Guidelines requires a finding of significance
if a project has the potential to ``reduce the number or restrict the
range of a rare or endangered plant or animal.'' If significant effects
are identified, the lead agency has the option to require mitigation
for effects through changes in the project or to decide that overriding
considerations make mitigation infeasible. In the latter case, projects
may be approved that cause significant environmental damage, such as
destruction of endangered species and their habitats. Protection of
species through CEQA is, therefore, dependent upon the discretion of
the lead agency.
Of the taxa included in this proposed rule, only Astragalus
lentiginosus var. coachellae occurs on private lands that are subject
to CEQA. Protection of A. lentiginosus var. coachellae has not been
adequately considered in the CEQA process. For instance, projects are
sometimes approved when biological surveys have not been conducted at
the appropriate time of year to locate this taxon (K Barrows, pers.
comm. 1997). The biology of the taxon may also result in it being
missed or the extent of its distribution severely underestimated if
surveys are carried out in years of low rainfall, or other times when
plants may occur at very low densities. In addition, development of
lands in the Coachella Valley may have an indirect effect on A.
lentiginosus var. coachellae by blocking transport of sands throughout
the Valley. These indirect, cumulative effects could result in large-
scale changes to the sand habitats of the Coachella Valley, but are not
often addressed on an individual project basis.
The taxa in this rule may already receive some habitat protection
from the Act where their ranges overlap those of species already listed
under the Act. The range of Astragalus lentiginosus var. coachellae
overlaps with that of the Coachella Valley fringe-toed lizard. The
three preserves set aside for the lizard support populations of A.
lentiginosus var. coachellae, but this represents only 20 to 25 percent
of the occurrences of this taxon. Over 75 percent of the occurrences of
this plant are located on unprotected sites on private or tribal lands.
The range of Astragalus jaegerianus overlaps with that of the
desert tortoise (Gopherus agassizii) on some portions of DOD lands at
Fort Irwin and on some BLM lands. However, the distribution of A.
jaegerianus is very localized and areas too small or fragmented to
support viable tortoise populations could support significant numbers
of the plant. Overlapping range with the tortoise does not provide
adequate protection for A. jaegerianus. Astragalus magdalenae var.
peirsonii and A. tricarinatus do not co-occur with any taxa already
listed under the Act.
Astragalus lentiginosus var. piscinensis occurs within the Fish
Slough ecosystem, a wetland supporting the Owens pupfish (Cyprinodon
radiosus), a federally listed endangered species. The listing of the
Owen's pupfish under the Act has provided additional recognition of the
need to protect the Fish Slough ecosystem, and in that way has
indirectly benefitted A. lentiginosus var. piscinensis. Conversely,
impoundments and other manipulations of the spring system of the
slough, created in part to provide habitat for the pupfish, have
resulted in
[[Page 53608]]
the loss of alkali meadow habitat of A. lentiginosus var. piscinensis.
Management emphasis on only one species or group of related species
(e.g. endangered fishes) will not provide adequate protection to all
sensitive species in the wetland system and, as in this case, may be
detrimental to the survival or recovery of co-occurring species. The
occurrence of federally listed fish species in Fish Slough does not
provide adequate protection for A. lentiginosus var. piscinensis in its
adjacent wetland habitat.
Under section 404 of the Clean Water Act, the U.S. Army Corps of
Engineers (Corps) regulates the discharge of fill into waters of the
United States, including navigable waters, wetlands, and other waters
(33 CFR parts 320-330). The Clean Water Act requires project proponents
to obtain a permit from the Corps prior to undertaking many activities
(e.g., grading, discharge of soil or other fill material, etc.) that
would result in the filling of wetlands subject to the Corps'
jurisdiction. The habitat of Astragalus lentiginosus var. piscinensis
is seasonally moist alkaline flats adjacent to Fish Slough and is a
jurisdictional wetland under the purview of section 404. Some
protection from wetland fill activity, such as the construction of new
dams, may be afforded by the regulatory process. However, unless a
population of A. lentiginosus var. piscinensis were directly within the
footprint of the fill area, impacts of the project on the species,
e.g., changes in hydrology, may not be considered. Fluctuating water
levels behind the dams at Fish Slough are not subject to regulation
under section 404, but can result in undesirable changes in the
hydrologic characteristics of the habitat of A. lentiginosus var.
piscinensis, a primary threat to the species. Protections afforded to
wetland areas under section 404 of the Clean Water Act are not
sufficient to preclude listing the species.
Currently, the majority of Astragalus jaegerianus sites are either
covered by mining claims, or are available for claims for mineral
extraction. The BLM has only limited authority under the Federal Land
Policy and Management Act (FLPMA) to control surface mining once claims
are made. The policy of FLPMA, as expressed by regulation, grants
individuals a statutory right to mine certain Federal lands (43 CFR
3809.0-6). Although mining projects are required to submit a Plan of
Operations (for projects over 2 ha (5 ac) in size) or a Notice of
Operations (for projects under 2 ha (5 ac), including exploratory
mining), the BLM has only 15 days in which to respond. Since the
notices may be submitted at times when the plants are not present
above-ground, BLM must frequently base its response on existing
knowledge of where plants are located, or were located in the past,
rather than on field surveys to determine if a site supports this
species. The options that are available to the Service and the BLM in
response to a project are limited, unless an action may jeopardize the
continued existence of the listed species pursuant to section 7 of the
Act. Astragalus jaegerianus currently receives minimal regulatory
protection in areas where mining activity is occurring.
Astragalus jaegerianus is included within the planning area of the
West Mojave Coordinated Management Plan, a multi-agency effort to
coordinate resource information and provide general resource management
direction in the west Mojave Desert. Unresolved issues stalled the
planning team's progress in 1996. The planning effort has since been
reinitiated, with a modified objective and fewer species to be
addressed. Although A. jaegerianus is one of the included taxa, the
planning process is not yet at a stage that will provide it protection.
Astragalus lentiginosus var. piscinensis occurs within Zone 1 of an
ACEC on public lands managed by the BLM, and on lands owned by the
LADWP. A joint management committee composed of representatives of the
LADWP, BLM, the Service, CDFG, and the University of California Natural
Reserve System provide guidance on management issues. Although the
management committee is making progress in addressing the needs of the
sensitive plants and animals in the Fish Slough ecosystem, the changes
in slough hydrology resulting from existing dams and, potentially, from
natural causes (Ferren 1991c), are complex and will not be easily
resolved. The Service concludes that the existence of the Fish Slough
ACEC and management committee do not preclude the need to list A.
lentiginosus var. piscinensis at this time.
Astragalus lentiginosus var. coachellae occurs within the bounds of
the Coachella Valley Multispecies Habitat Conservation Planning
(CVMSHCP) area. This planning process is being coordinated by the
Coachella Valley Association of Governments and the Coachella Valley
Mountains Conservancy to address a 4500 sq km (1,850 sq mi) area that
includes the Coachella Valley and surrounding region in Riverside
County. The plan is expected to address conservation needs for 12
species that are listed or proposed for listing as endangered or
threatened species, 21 candidate species, and 17 additional species of
concern to the Service. However, the planning process is in its initial
stages and its funding is not secured, nor is a product yet available
that can be implemented. Thus, the inclusion of A. lentiginosus var.
coachellae in the CVMSHCP planning process is not sufficient to
preclude the need to list the species at this time.
E. Other Natural or Human-caused Factors Affecting Their Continued
Existence
A potential threat to Astragalus jaegerianus is habitat destruction
from emergency fire suppression activities in response to wildfires
occurring at Lane Mountain Mesa. An increase in fire frequency has been
documented for the nearby Superior Dry Lake area (T. Eagen, pers. comm.
1997) and the Lane Mountain Mesa area is experiencing similar increases
in human activity (the ignition source) and nonnative annual plant
species (the significant fuel source) (T. Eagen, pers. comm. 1996).
Although the population of A. jaegerianus has not been burned recently,
the existence of fewer than 30 plants at this site make it extremely
vulnerable to emergency fire suppression activities or similar
unplanned events.
Lack of recruitment is a potential threat to Astragalus
lentiginosus var. piscinensis. BLM has been monitoring this taxon in
the central-eastern zone of Fish Slough since 1992 and has observed no
recruitment in the area during that time (BLM, in litt. 1993, 1996;
Anne Halford, BLM, pers. comm. 1996). Two potential explanations for
this are high rabbit/rodent herbivory of seedlings and changes in soil
hydrology or chemistry that make the area less hospitable for
seedlings. Alterations in the extent and timing of soil saturation have
occurred in several areas of the slough due to past hydrologic
modifications, most recently for the enhancement of endangered fish
habitat.
Astragalus lentiginosus var. piscinensis is subject to grazing from
livestock. The Fish Slough area was first grazed by cattle in the
1860s, and grazing currently occurs on all LADWP lands that support A.
lentiginosus var. piscinensis except for those within the northern 32-
ha 80-ac exclosure (P. Hubbard, pers. comm. 1996). Data on plant
numbers, collected from plots in grazed and ungrazed areas of Fish
Slough from 1991 to 1996, suggest that some recruitment of new
individuals into the population is occurring in both the grazed and
ungrazed sample areas. The sampled plots are few (three grazed
[[Page 53609]]
plots and two ungrazed plots) and numbers of plants within the plots
fluctuated substantially over the sampling period without clear
increasing or declining trends.
Grazing by livestock alters the composition of the plant community
over time by reducing or eliminating those species that cannot tolerate
trampling and by enabling those that can to increase in abundance.
Other taxa that were not previously part of the native plant community
may be introduced and flourish under the disturbance caused by grazing
and may reduce or eliminate native taxa through competition for
resources. The Service considers cattle grazing a potential threat
until more conclusive evidence is available. Additional discussion of
cattle grazing can be found in this document in the Service's
``Response to Comments'' section of this final rule (see Issue 4).
Astragalus tricarinatus is vulnerable to crushing by motorized
vehicles in Big Morongo Wash. Although access to the bottom of the
canyon is gated, botanists conducting surveys for A. tricarinatus in
1994 noted motor vehicle tracks within several feet of the plants.
While some of the vehicle activity may have been associated with
pipeline maintenance, other vehicle use may have been recreational
(Mathews 1994). Due to the limited number of individuals (less than 100
known plants), A. tricarinatus remains extremely vulnerable to loss of
plants due to OHVs, maintenance operations, and unforseen events
relating to the pipeline (e.g., pipeline breaks or leaks) that could
cause local population extirpation and potentially lead to extinction
of the species.
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by these taxa in determining to make this rule
final. Based on new information that has come to light since these taxa
were proposed and based on reevaluation of existing data, the Service's
preferred action is to list Astragalus jaegerianus, A. tricarinatus,
and A. lentiginosus var. coachellae as endangered, and A. lentiginosus
var. piscinensis and A. magdalenae var. peirsonii as threatened. The
three endangered taxa face the following threats--habitat alteration
and destruction resulting from construction, urban development, mining,
pipeline maintenance, and OHV activity; and the inadequacy of existing
regulatory mechanisms. The low numbers and small population sizes of A.
jaegerianus and A. tricarinatus make them particularly vulnerable to
extinction from random natural events (e.g., flooding that could wash
substantial amounts of the seedbank into unsuitable habitat) or
unforeseen events (e.g., wildfire suppression activities, pipeline
breaks, leaks, or repairs). Because these three taxa are in danger of
extinction throughout all or a significant portion of their ranges,
they meet the definition of endangered under the Act.
Both Astragalus magdalenae var. peirsonii and A. lentiginosus var.
piscinensis were originally proposed for endangered status. Since the
proposed rule was published, the northern portion of Algodones Dunes
habitat that supports A. magdalenae var. peirsonii was formally
designated as wilderness in 1994 under the California Desert Protection
Act. This wilderness is permanently closed to motorized-vehicle use.
Since publication of the proposed rule, the Service has also become
aware of collections of A. magdalenae var. peirsonii from the Gran
Desierto in Sonora, Mexico. The specimens from Sonora were all
collected from the southern Gran Desierto over a 15-year period
(Richard Felger, Drylands Institute, pers. comm. 1996; J. Rebman, San
Diego Museum of Natural History, pers. comm. 1996; Alan Romspert,
California Desert Studies Center, pers. comm. 1996; Gary D. Wallace,
Service, pers. comm. 1996). While this taxon remains vulnerable to the
OHV use occurring over most of its dune habitat, the Service believes
that the dispersed nature of its colonies and the wilderness
designation reduce the potential for immediate extinction. Therefore, a
designation of threatened is appropriate for this taxon. Astragalus
lentiginosus var. piscinensis is threatened by hydrologic modification
of its wetland ecosystem, and reduced recruitment that may be due to
past alteration of habitat or rabbit/rodent herbivory. A significant
portion of the northern population is protected by an exclosure,
reducing the threat from grazing. In addition, the lands on which it
occurs receive specific management consideration due to its inclusion
in an ACEC. The Service determines that, while this taxon may not be in
immediate danger of extinction, it is likely to become endangered in
the foreseeable future throughout all or a significant portion of its
range, thus a threatened designation is appropriate. Critical habitat
is not being designated for these five taxa for reasons discussed in
the following section.
Critical Habitat
Critical habitat is defined in section 3 of the Act as: (i) 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 (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. ``Conservation'' means the use of all methods and
procedures needed to bring the species to the point at which listing
under the Act is no longer necessary.
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary designate critical habitat at the time
the species are determined to be endangered or threatened. Service
regulations (50 CFR 424.12(a)(1)) state that designation of critical
habitat is not prudent when one or both of the following situations
exist--(1) the species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of such threat to the species, or (2) such designation of
critical habitat would not be beneficial to the species.
Section 7(a)(2) of the Act requires Federal agencies to consult
with the Service to ensure that any action authorized, funded, or
carried out by such agency, does not jeopardize the continued existence
of a federally listed species or destroy or adversely modify designated
critical habitat. The requirement that Federal agencies must not
destroy or adversely modify critical habitat in any action authorized,
funded or carried out by such agency (agency action) is in addition to
the section 7 prohibition against jeopardizing the continued existence
of a listed species; and it is the only mandatory legal consequence of
a critical habitat designation. The Service's implementing regulations
(50 CFR part 402) define ``jeopardize the continuing existence of'' and
``destruction or adverse modification of'' in very similar terms. To
jeopardize the continuing existence of a species means to engage in an
action ``that reasonably would be expected to reduce appreciably the
likelihood of both the survival and recovery of a listed species.''
Destruction or adverse modification of habitat means an ``alteration
that appreciably diminishes the value of critical habitat for both the
survival and recovery of a listed species in the wild by reducing the
reproduction, numbers, or distribution of that species.''
[[Page 53610]]
Common to both definitions is an appreciable detrimental effect to both
the survival and recovery of a listed species. An action that
appreciably diminishes habitat for recovery and survival may also
jeopardize the continued existence of the species by reducing
reproduction, numbers, or distribution because negative impacts to such
habitat may reduce population numbers, decrease reproductive success,
or alter species distribution through habitat fragmentation.
For a listed plant species, an analysis to determine jeopardy under
section 7(a)(2) would consider loss of the species associated with
habitat impacts. Such an analysis would closely parallel an analysis of
habitat impacts conducted to determine adverse modification of critical
habitat. As a result, an action that results in adverse modification
also would almost certainly jeopardize the continued existence of the
species concerned. Listing these species will ensure that section 7
consultation occurs and potential impacts to the species and their
habitat are considered for any Federal action that may affect these
species. In many cases, listing also ensures that Federal agencies
consult with the Service even when Federal actions may affect
unoccupied suitable habitat where such habitat is essential to the
survival and recovery of the species. This is especially important for
plant species where consideration must be given to the seed bank
component of the species, which are not necessarily visible in the
habitat throughout the year. A significant portion of their vegetative
structure may not be in evidence during cursory surveys; occupancy of
suitable habitat can only be reliably determined during the growing
season. In practice, the Service usually consults with Federal agencies
proposing projects in areas where the species was known to recently
occur or to harbor known seed banks.
Specific areas outside the geographical area occupied by a species
are included in the Act's definition of ``critical habitat.'' Critical
habitat can be designated for suitable, but unoccupied, habitat of
listed species. However, the Act indicates that critical habitat
``shall not include the entire geographical area which can be occupied
by the threatened or endangered species'' except when determined by the
Secretary. In the case of the species addressed in this final rule, the
Service does not know specifically why some areas that seem suitable
are unoccupied. Designating all potentially suitable areas could,
therefore, encompass ``the entire geographical area'' which can be
occupied by the species. Furthermore, the Service has not yet made a
determination as to how much habitat is required for recovery.
Designating all or a portion of unoccupied habitat under these
circumstances seems inappropriate and contrary to Congressional intent.
The Service believes the issue of conserving and managing potentially
suitable unoccupied habitat is best addressed during the recovery
planning process as biologists learn more about these species and are
able to work directly with affected landowners on how to best manage
these habitats.
Apart from section 7, the Act provides no additional protection to
lands designated as critical habitat. Designating critical habitat does
not create a management plan for the areas where the species occurs;
does not establish numerical population goals or prescribe specific
management actions (inside or outside of critical habitat); and does
not have a direct effect on areas not designated as critical habitat.
Critical habitat would provide no benefit to the species addressed
in this rule on non-Federal lands (i.e., private, State, County or City
lands) beyond that provided by listing. Critical habitat provides
protection on non-Federal lands only if there is Federal involvement (a
Federal nexus) through authorization or funding of, or participation in
a project or activity on non-Federal lands. In other words, designation
of critical habitat on non-Federal lands does not compel or require the
private or other non-Federal landowner to undertake active management
for the species or to modify any activities in the absence of a Federal
nexus. Possible Federal agency involvement or funding that could
involve the species addressed in the rule on non-Federal lands include
the BLM, DOD, and the Corps. Federal involvement, if it does occur,
will be addressed regardless of whether critical habitat is designated
because interagency coordination requirements such as the Fish and
Wildlife Coordination Act (FWCA) and section 7 of the Act are already
in place. When these plant species are listed, activities occurring on
all lands subject to Federal jurisdiction that may adversely affect
these species would prompt the requirement for consultation under
section 7(a)(2) of the Act, regardless of whether critical habitat has
been designated.
While a designation of critical habitat on private lands would only
affect actions where a Federal nexus is present and would not confer
any additional benefit beyond that already provided by section 7
consultation because virtually any action that would result in an
adverse modification determination would also likely jeopardize the
species, a designation of critical habitat on private lands could
result in a detriment to the species. This is because the limited
effect of a critical habitat designation on private lands is often
misunderstood by private landowners whose property boundaries could be
included within a general description of critical habitat for a
specific species. Landowners may mistakenly believe that critical
habitat designation will be an obstacle to development and impose
restrictions on their use of their property. In some cases, members of
the public may believe critical habitat designation to be an attempt on
the part of the government to confiscate their private property.
Unfortunately, inaccurate and misleading statements reported through
widely popular medium available worldwide, are the types of
misinformation can and have led private landowners to believe that
critical habitat designations prohibit them from making use of their
private land when, in fact, they face potential constraints only if
they need a Federal permit or receive Federal funding to conduct
specific activities on their lands. These types of misunderstandings,
and the fear and mistrust they create among potentially affected
landowners, make it very difficult for the Service to cultivate
meaningful working relationships with such landowners and to encourage
voluntary participation in species conservation and recovery
activities. Without the participation of landowners in the recovery
process, the Service will find it very difficult to recover species
that occur on non-Federal lands.
A designation of critical habitat on private lands could actually
encourage habitat destruction by private landowners to rid themselves
of the perceived endangered species problem. Listed plants have limited
protection under the Act, particularly on private lands. Section
9(a)(2) of the Act, implemented by regulations at 50 CFR section 17.61
(endangered plants) and 50 CFR 17.71 (threatened plants) prohibits--(1)
removal and reduction of listed plant species to possession from areas
under Federal jurisdiction, or their malicious damage or destruction on
areas under Federal jurisdiction; or (2) removal, cutting, digging up,
or damaging or destroying any such species in knowing violation of any
State law or regulation including state criminal trespass laws.
Generally, on private lands, collection of, or
[[Page 53611]]
vandalism to, listed plants must occur in violation of State law to be
a violation of section 9. The Service is not aware of any state law in
California that generally regulates or prohibits the destruction or
removal of federally listed plants on private lands. Vandalism is a
potential threat to the five taxa listed in this rule. In the general
area where the plants addressed in this rule are found, a development
and construction company was documented to have deliberately bulldozed
known federally listed plant locations at a work site. (T. Thomas,
Service). The designation of critical habitat requires the publication
of precise habitat descriptions and mapped locations of the species in
the Federal Register, increasing the likelihood of collection and
vandalism, including potential search and removal activities at
specific sites.
The Service acknowledges that in some situations critical habitat
designation may provide some value to the species by notifying the
public about areas important for species' conservation and calling
attention to those areas in special need of protection. However, when
this limited benefit is weighed against the potential threat of
collection and vandalism associated with the designation of critical
habitat, the Service concludes that the possible detriment to the
species from a critical habitat designation outweighs the possible
conservation benefit of such designation and that such designation is
therefore not prudent. The information and notification process can
more effectively be accomplished by working directly with landowners
and communities during the recovery planning process and by the section
7 consultation and coordination process when a Federal nexus exists.
The use of these existing processes will provide the same level of
conservation benefit to the species that the designation of critical
habitat would, but without the confusion and misunderstandings
associated with critical habitat designation.
For similar reasons, the Service also concludes that there would be
no additional benefits to the species covered in this rule beyond the
benefits conferred by listing from a designation of critical habitat on
Federal lands. In the case of each of these plant species, the existing
occurrences of the species are known by the BLM and DOD; and any action
that would result in adverse modification of critical habitat would
almost certainly result in likely jeopardy to the species, so that a
designation of critical habitat on Federal lands would not confer any
additional benefit on the species. On the other hand a designation of
critical habitat could increase the threats to these species from
vandalism and collection similar to the threats identified in response
to listing a species (Oberbauer 1992, Beauchamp in litt. 1997). Simply
listing a species can precipitate commercial or scientific interest,
both legal and illegal, which can threaten the species through
unauthorized and uncontrolled collection for both commercial and
scientific purposes. The listing of species as endangered or threatened
publicizes a species' rarity and may make the species more susceptible
to collection by researchers or curiosity seekers (Mariah Steenson
pers. comm. 1997, M.Bosch, U.S. Forest Service in litt. 1997). For
example, the Service has documented an incident where, following the
publication of critical habitat designation in the Federal Register,
unidentified persons visited a Forest Service wilderness area where
listed plants were located and asked directions to the location of the
plants in question. Several plants were later found to be missing from
the Service study plots (Nora Murdock, Service, pers. comm. 1998).
Because public lands such as BLM lands are open for public use,
this threat exists whenever maps of listed plant locations are made
known to the public, as required for critical habitat designation.
Critical habitat designation also makes plant species more vulnerable
to vandals who would destroy occurrences of plants and other protected
species in order to avoid perceived or potential land management
conflicts. The potential threat of vandalism and collection would
likely be exacerbated by publication of descriptions and maps of
critical habitat in the Federal Register. The Service concludes that
the absence of any additional conservation benefit from a designation
of critical habitat for the plant species covered by the rule known to
occur on Federal lands, and the likely detriment from such designation
resulting from increased threats of collection and vandalism renders a
designation of critical habitat for the plants not prudent.
The Service has weighed the lack of overall benefits of critical
habitat designation beyond that provided by listing species as
threatened or endangered along with the benefits of public notification
against the detrimental effects of the negative public response and
misunderstanding of what critical habitat designation means and the
increased threats of illegal collection and vandalism, and has
concluded that critical habitat designation is not prudent for
Astragalus jaegerianus, A. lentiginosus var. coachellae, A.
lentiginosus var. piscinensis, A. magdalenae var. peirsonii, and A.
tricarinatus. More specific details why designation of critical habitat
is not prudent for each of these species is addressed in the following
discussion.
Astragalus jaegerianus
Astragalus jaegerianus occurs on lands managed by the BLM and the
DOD. Because so few plants are known to occur, it is likely that any
activity that would be considered an adverse modification of critical
habitat would also likely jeopardize the continued existence of the
species; thus, a critical habitat designation would provide no
advantage or additional conservation benefit in this instance. However,
A. jaegerianus occurs in desert shrublands that appear no different
from surrounding, unoccupied habitat. There is no easily observable
difference in dominant vegetation type, landform, soil, or hydrologic
characteristics, to distinguish occupied habitat of A. jaegerianus from
surrounding unoccupied or unsuitable habitat. For this reason, the
designation of critical habitat could potentially benefit this species
by formally delineating for the Federal agencies those areas occupied
by the species or that the Service deems critical to its survival and
recovery, thus ensuring that consultation will take place when a
federally authorized activity (such as military maneuvers or mining)
occurs in critical habitat. While this small benefit may exist, it is
offset by the potential negative effects of designating critical
habitat. Known populations of A. jaegerianus total only a few hundred
plants. A critical habitat map that delineated occupied habitat areas
would increase the potential for overcollecting by amateur and
unethical professional botanists, especially since one of the
populations is easily accessible from a road. Increases in collection
of rare plant species following publications discussing the species'
rarity have been documented (Gary Wallace, Service, pers. comm. 1997;
Nora Murdock, Service, pers. comm. 1998). The threat of vandalism on
Federal lands exists for this species.
The Service finds that critical habitat designation would provide
little conservation benefit over that provided by listing where this
species occurs. Federal agencies where the species occurs on their
lands are aware of its presence and status. Critical habitat
designation on these lands would not necessarily change the way those
lands are managed or require that specific management actions take
place. All
[[Page 53612]]
activities that may affect the species on these Federal lands would be
subject to section 7 consultation. The Service believes that the
conservation of this species on Federal lands can best be addressed by
working directly with the agencies during the recovery planning process
and the interagency coordination and consultation processes of section
7 for those activities with Federal agency involvement. In conclusion,
the Service has weighed the general lack of benefit beyond that
provided by listing as endangered against the detrimental effects of
the increased threat of vandalism and the potential for
misunderstandings by the public about the effects of critical habitat
designation on Federal lands, and concludes that critical habitat is
not prudent for Astragalus jaegerianus.
Astragalus lentiginosus var. coachellae
Astragalus lentiginosus var. coachellae is currently known from
fewer than 25 occurrences in the Coachella Valley. About 75 to 80
percent of the known occurrences of Astragalus lentiginosus var.
coachellae are located on private lands. The primary threat to A.
lentiginosus var. coachellae is habitat destruction due to the
extensive urban development occurring in the Coachella Valley.
Urbanization destroys populations by direct conversion of the land on
which they occur and by altering or reducing the source and transport
of blow sands that maintain the sand habitats of the Coachella Valley.
As discussed above, widespread misunderstanding exists in the public
sector about the regulatory effect of a designation of critical
habitat. On these lands, a designation of critical habitat could lead
to increased vandalism; and because plants on private lands have few
protections under section 9 of the Act, acts of take or vandalism would
be difficult to prosecute. Where the taxon does occur on Federal lands
or where Federal involvement may occur on non-Federal lands, actions
that could adversely affect this taxon would be subject to consultation
under section 7 of the Act. In some cases, delineating areas as
critical habitat may provide a benefit to the taxon by increasing
awareness of its location and by triggering additional consultations
under section 7 that otherwise might not occur if the Federal agencies
are unaware of population locations. The locations of A. lentiginosus
var. coachellae on Federal land are being tracked and additional
surveys are being conducted as part of the planning process for the
Coachella Valley Multispecies Habitat Conservation Plan. Due to this
active planning effort, a designation of critical habitat would not
provide any benefit through increased awareness or through consultation
with the Service. The Service determines that designation of critical
habitat for this taxon will provide it no additional conservation
benefits beyond those provided by its listing, and that the designation
could lead to acts of collection or vandalism. Therefore, the risks
associated with a designation of critical habitat outweigh the possible
benefits of designating critical habitat. Designation of critical
habitat is, therefore, not prudent.
Astragalus lentiginosus var. piscinensis
Astragalus lentiginosus var. piscinensis is restricted to a 6-mile
stretch of alkali flat habitat and the transition zones to alkali scrub
paralleling Fish Slough, in Inyo and Mono Counties, California. These
habitat types form a ring around the seasonally and permanently flooded
wetland areas of the slough itself. Over 60 percent of this population
is located in the northern portion of the slough on land owned by the
LADWP and approximately 35 percent of known A. lentiginosus var.
piscinensis plants grow in the central zone of the slough on lands
owned and managed by both BLM and LADWP. About 5 percent are in
scattered patches downstream as far as McNally Canal, but Fish Slough
is narrow at its southern end, with little suitable habitat (P. Novak,
in litt. 1992; W. Ferren, in litt. 1992).
The alkali flat and alkali scrub habitat in the Fish Slough
ecosystem were well-mapped by 1991 (Ferren 1991a ) and the distribution
of Astragalus lentiginosus var. piscinensis was mapped by BLM and LADWP
in 1992, during surveys in which all potential habitat was searched.
The habitat types in which A. lentiginosus var. piscinensis grows are
visually different in dominant species than the surrounding upland
habitat and are limited in extent. The lands on which A. lentiginosus
var. piscinensis occurs receive specific management consideration due
to its inclusion in an ACEC. The entire range of this taxon is
encompassed within the Fish Slough ACEC under multi-agency management
that includes BLM and the LADWP and this, combined with its proximity
to a BLM Resource Area office, have provided A. lentiginosus var.
piscinensis substantial recognition by BLM staff. As a result of this
taxon occurring partially on lands managed by the BLM, section 7
consultations are probable. Because the habitat of this taxon is
distinctive and the Fish Slough area is a management area of specific
concern to the BLM, a designation of critical habitat would not provide
A. lentiginosus var. piscinensis any additional recognition, or
increased protection through consultation, beyond that provided by its
listing. In 1991, LADWP constructed a 32 ha (80 ac) cattle exclosure at
the northern end of the slough. In 1992, over 95 percent of the A.
lentiginosus var. piscinensis plants in the northern zone were within
the exclosure. Other than the area encompassed by the exclosure in the
north end of Fish Slough, lands under LADWP management that support
this taxon are grazed (Paula Hubbard, LADWP, pers. comm. 1996). Grazing
is not permitted in the habitat of A. lentiginosus var. piscinensis on
lands managed by BLM, in the central zone of the slough. The Service
recognizes the efforts of the LADWP to protect A. lentiginosus var.
piscinensis from the direct effects of trampling in the north region of
the Slough by constructing a fenced exclosure and commends the efforts
of the BLM and LADWP to monitor the status of the plant. Critical
habitat designation on these lands would not change the way those lands
are managed or require that specific management actions take place.
Because this taxon is very narrowly distributed, any activity that
would be significant enough to be considered an adverse modification of
critical habitat would also likely jeopardize the continued existence
of the species. For these reasons, the Service determines that
designation of critical habitat for this taxon is not prudent because
it would provide no additional benefit to the species beyond that
conferred by listing.
Astragalus magdalenae var. peirsonii
BLM manages all of the Algodones Dunes, the location of the only
confirmed extant populations of Astragalus magdalenae var. peirsonii in
the United States. Given the sensitivity of the sand dune habitat of
this species to physical disturbance and the limited distribution and
reliance of A. magdalenae var. peirsonii to a specific habitat type,
the biological threshold for ``jeopardy'' and ``destruction or adverse
modification'' is essentially identical. That is, any action that would
impact the habitat of this species to the degree of causing destruction
or adverse modification (i.e., appreciably diminishing the value of the
area for both the survival and recovery of the species) would also
jeopardize the continued existence of the species (i.e., reduce
appreciably the likelihood of both the survival and recovery of a
listed species in the wild by reducing the reproduction, numbers, or
distribution of that species).
[[Page 53613]]
Approximately 180 sq mi of the Algodones Dunes are open to OHV
access and 30 sq mi of dunes are ``closed'' to OHV use. The Service's
review of aerial photography of Algodones Dunes indicates that the most
intensive OHV use and the resulting destruction of plant habitat occurs
in about 1/3 of the open area. Given the public's misperception about
critical habitat and greater access to the dunes by OHV users (see
Factor A of the ``summary of factors Affecting the Species'' section of
this rule), it seems likely that a designation of critical habitat
could lead to acts of vandalism. The Service believes that if critical
habitat is designated for Astragalus magdalenae var. peirsonii, in any
portion of the dune system, such action may provoke deliberate
incidents of vandalism by OHV users. The public's misperception that
critical habitat essentially limits or nullifies use of public lands
may serve to encourage acts of vandalism. The threat of vandalism on
Federal lands exists for this species.
The Service finds that critical habitat designation would provide
little conservation benefit over that provided by listing where this
species occurs. The Service acknowledges that critical habitat
designation, in some situations, may provide limited additional benefit
to a species by identifying areas important for the conservation of the
species and calling attention to those areas in special need of
protection. The BLM is already aware of the presence of Astragalus
magdalenae var. peirsonii and its status. Critical habitat designation
on these lands would not necessarily change the way those lands are
managed or require that specific management actions take place. All
activities that may affect the species on these Federal lands would be
subject to section 7 consultation. Thus, with the listing of A.
magdalenae var. peirsonii, activities occurring on all lands under
Federal jurisdiction or ownership that may adversely affect A.
magdalenae var. peirsonii would prompt the same standard for
consultation pursuant to section 7(a)(2) of the Act and the
implementing regulations pertaining thereto regardless of whether
critical habitat has been designated. The Service believes that the
conservation of this species on Federal lands can best be addressed by
working directly with the BLM during the recovery planning process and
the interagency coordination and consultation processes of section 7.
In conclusion, the Service has weighed the general lack of conservation
benefit of designating critical habitat beyond that provided by listing
against the detrimental effects of the increased threat of vandalism
and the potential for misunderstandings of critical habitat by the
public, and concludes that critical habitat is not prudent for A.
magdalenae var. peirsonnii.
Astragalus tricarinatus
As of January 1997, Astragalus tricarinatus is known to be extant
along approximately 2 to 3 km (1 to 2 mi) of Big Morongo Canyon and its
tributary canyons. Collections of this taxon exist from three other
canyons within its range, however at two sites, only a single plant was
found. At Big Morongo Canyon, this taxon is found on lands managed by
the BLM and included within a preserve. Any Federal action that occurs
in the wash habitat of this species will require consultation with the
Service through the section 7 guidelines. Because A. tricarinatus
occurs in only a few locations, any Federal action significant enough
to be considered adverse modification of critical habitat would also
likely jeopardize the continued existence of this species, thus there
is no additional conservation benefit to designating critical habitat.
The habitat map that would be required for designation of critical
habitat would delineate occupied habitat areas, and would increase the
potential for overcollecting by amateur and unethical professional
botanists, especially since one of the populations is easily accessible
from a road. Increases in collection of rare plant species following
publication of articles discussing their rarity has been documented in
the past (Gary Wallace, Service, pers. comm. 1997). The Service
determines that the negative effects of designating critical habitat
outweigh any potential benefits of its designation. For these reasons,
the Service determines that designation of critical habitat for this
taxon is not prudent because it would provide no additional benefit to
the species beyond that conferred by its listing, and the designation
of critical habitat would increase the potential for acts of vandalism
due to the public's misperceptions about critical habitat. Therefore,
designation of critical habitat for A. tricarinatus is not prudent.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
activities. Recognition through listing results in public awareness and
conservation actions by Federal, State, and local agencies, private
organizations, and individuals. The Act provides for possible land
acquisition and cooperation with the States and requires that recovery
actions be carried out for all listed species. The protection required
of Federal agencies and the prohibitions against certain activities
involving listed plants are discussed, in part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
402. Section 7(a)(4) requires Federal agencies to confer with the
Service on any action that is likely to jeopardize the continued
existence of a species proposed for listing or result in destruction or
adverse modification of proposed critical habitat. If a species is
subsequently listed, section 7(a)(2) requires Federal agencies to
ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of a listed species or to
destroy or adversely modify its critical habitat. If a Federal action
may affect a listed species or its critical habitat, the responsible
Federal agency must enter into formal consultation with the Service.
Four of the five taxa occur wholly or primarily on Federal lands
managed by the BLM or the DOD. Three of the taxa occur partially or
wholly within areas designated as ACECs, one species occurs within a
wind energy development corridor, and one species occurs within a
recreation area. BLM activities that could potentially affect these
taxa and their habitats include review of mining operation plans and
minerals leasing, geothermal energy leasing, permitting of grazing,
alteration of dams and hydrologic conditions at Fish Slough, the
permitting of pipeline maintenance, wind energy development and
associated rights-of-way in the Coachella Valley, and the development
of recreational facilities and improvement of access in the Imperial
Dunes Recreation Area. The BLM is currently developing a Habitat
Conservation Plan for the desert tortoise in the western Mojave Desert
that includes the entire range of Astragalus jaegerianus. Specific
actions have not been identified at this time. The DOD training
activities conducted at the NTC at Fort Irwin could potentially affect
Astragalus jaegerianus. Specific actions
[[Page 53614]]
on DOD lands have not been identified at this time.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all threatened and
endangered plants. All prohibitions of section 9(a)(2) of the Act,
implemented by 50 CFR 17.61 for endangered plants, and at 50 CFR 17.71
for threatened plants apply. These prohibitions, in part, make it
illegal for any person subject to the jurisdiction of the United States
to import or export, transport in interstate or foreign commerce in the
course of a commercial activity, sell or offer for sale in interstate
or foreign commerce, remove and reduce to possession these species from
areas under Federal jurisdiction. In addition, for plants listed as
endangered, the Act prohibits the malicious damage or destruction on
areas under Federal jurisdiction and the removal, cutting, digging up,
or damaging or destroying of such plants in knowing violation of any
State law or regulation, including State criminal trespass law. Section
4(d) of the Act allows for the provision of such protection to
threatened species. This protection may apply to Astragalus
lentiginosus var. piscinensis and A. magdalenae var. peirsonii in the
future if regulations are promulgated. Seeds from cultivated specimens
of threatened plant species are exempt from these prohibitions provided
that their containers are marked ``Of Cultivated Origin.'' Certain
exceptions apply to agents of the Service and State conservation
agencies.
The Act and 50 CFR 17.62, 17.63, and 17.72 also provide for the
issuance of permits to carry out otherwise prohibited activities
involving endangered and threatened plant species under certain
circumstances. Such permits are available for scientific purposes and
to enhance the propagation or survival of the species. For threatened
plants, permits also are available for botanical or horticultural
exhibition, educational purposes or special purposes consistent with
the purposes of the Act. It is anticipated that few trade permits would
ever be sought or issued because these species are not common in
cultivation or in the wild.
It is the policy of the Service, published in the Federal Register
on July 1, 1994, (59 FR 34272) to identify to the maximum extent
practicable at the time a species is listed those activities that would
or would not be likely to constitute a violation of section 9 of the
Act. The intent of this policy is intended to increase public awareness
of the effect of this listing on proposed and ongoing activities within
the species' range. Four of the taxa in this rule are known to occur on
lands under the jurisdiction of the BLM, with one also occurring on
lands under the jurisdiction of the DOD. Collection, damage, or
destruction of individuals of these species on Federal lands is
prohibited, although in appropriate cases a Federal endangered species
permit may be issued to allow collection. Such activities on non-
Federal lands would constitute a violation of section 9 if conducted in
knowing violation of California State law or regulations, including
violation of State criminal trespass law. The Service believes that,
based upon the best available information, the following actions will
not result in a violation of section 9, provided these activities are
carried out in accordance with existing regulations and permit
requirements:
(1) Activities authorized, funded, or carried out by Federal
agencies (e.g., grazing management, agricultural conversions, wetland
and riparian habitat modification, flood and erosion control,
residential development, recreational trail development, road
construction, hazardous material containment and cleanup activities,
prescribed burns, pesticide/herbicide application, pipelines or utility
lines crossing suitable habitat,) when such activity is conducted in
accordance with any reasonable and prudent measures given by the
Service in a consultation conducted under section 7 of the Act;
(2) Casual, dispersed human activities on foot or horseback (e.g.,
bird watching, sightseeing, photography, camping, hiking);
(3) Activities on private lands that do not require Federal
authorization and do not involve Federal funding, such as grazing
management, agricultural conversions, flood and erosion control,
residential development, road construction, and pesticide/herbicide
application when consistent with label restrictions;
(4) Residential landscape maintenance, including the clearing of
vegetation around one's personal residence as a fire break.
The Service believes that the following might potentially result in
a violation of section 9; however, possible violations are not limited
to these actions alone:
(1) Unauthorized collecting of the species on Federal lands;
(2) Application of pesticides/herbicides in violation of label
restrictions;
(3) Interstate or foreign commerce and import/export without
previously obtaining an appropriate permit. Permits to conduct
activities are available for purposes of scientific research and
enhancement of propagation or survival of the species.
The Act and 50 CFR 17.62 and 17.63 for endangered plants and 17.72
for threatened plants provide for the issuance of permits to carry out
otherwise prohibited activities involving endangered and threatened
plants under certain circumstances. Such permits are available for
scientific purposes and to enhance the propagation or survival of the
species. For threatened plants, permits are also available for
botanical or horticultural exhibition, educational purposes, or special
purposes consistent with the purposes of the Act.
Questions regarding whether specific activities would constitute
violations of section 9 should be directed to the Field Supervisor of
the Service's Carlsbad Field Office (see ADDRESSES section). Requests
for copies of the regulations concerning listed plants (50 CFR 17.61
and 17.71) and general inquiries regarding prohibitions and permits may
be addressed to the U.S. Fish and Wildlife Service, Ecological
Services, Endangered Species Permits, 911 N.E. 11th Avenue, Portland,
Oregon, 97232-4181 (telephone 503/231-2063; facsimile 503/231-6243).
National Environmental Policy Act
The Fish and Wildlife Service has determined that Environmental
Assessments and Environmental Impact Statements, as defined under the
authority of the National Environmental Policy Act of 1969, need not be
prepared in connection with regulations adopted pursuant to section
4(a) of the Endangered Species Act of 1973, as amended. A notice
outlining the Service's reasons for this determination was published in
the Federal Register on October 25, 1983 (48 FR 49244).
Paperwork Reduction Act
This rule does not contain any information collection requirements
for which the Office of Management and Budget (OMB) approval under the
Paperwork reduction Act, 44 U.S.C. 3501 et seq. is required. An
information collection related to the rule pertaining to permits for
endangered and threatened species has OMB approval and is assigned
clearance number 1018-0094. This rule does not alter that information
collection requirement. For additional information concerning permits
and associated requirements for threatened species, see 50 CFR 17.32.
[[Page 53615]]
References Cited
A complete list of all references cited herein is available upon
request, from the Ventura Field Office (see ADDRESSES above).
Author. The primary author of this final rule is Diane Steeck,
Ventura Field Office, U.S. Fish and Wildlife Service, 2493 Portola
Road, Suite B, Ventura, California 93003 (805/644-1766).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, the Service amends part 17, subchapter B of chapter I,
Title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. Amend section 17.12(h) by adding the following, in alphabetical
order under FLOWERING PLANTS, to the List of Endangered and Threatened
Plants to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family name Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Flowering Plants
* * * * * * *
Astragalus jaegerianus........... Lane Mountain milk- U.S.A. (CA)........ Fabaceae........... E 647 NA NA
vetch.
* * * * * * *
Astragalus lentiginous var. Coachella Valley U.S.A. (CA)........ Fabaceae........... E 647 NA NA
coachellae . milk-vetch.
* * * * * * *
Astragalus lentiginous var. Fish Slough milk- U.S.A. (CA)........ Fabaceae........... T 647 NA NA
piscinensis. vetch.
* * * * * * *
Astragalus magdalenae var. Peirson's milk-vetch U.S.A. (CA)........ Fabaceae........... T 647 NA NA
peirsonii .
* * * * * * *
Astragalus tricarinatus.......... Triple-ribbed milk- U.S.A. (CA)........ Fabaceae........... E 647 NA NA
vetch.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: September 29, 1998.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 98-26734 Filed 10-5-98; 8:45 am]
BILLING CODE 4310-55-P
