[Federal Register Volume 64, Number 100 (Tuesday, May 25, 1999)]
[Proposed Rules]
[Pages 28136-28142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12991]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AF61
Endangered and Threatened Wildlife and Plants; Proposed
Endangered Status for Astragalus pycnostachyus var. lanosissimus
(Ventura Marsh Milk-vetch)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose
endangered species status pursuant to the Endangered Species Act of
1973, as amended (Act), for Astragalus pycnostachyus var. lanosissimus
(Ventura marsh milk-vetch). Historically known from a three-county
region in coastal southern California, Astragalus pycnostachyus var.
lanosissimus was believed extinct until its rediscovery in 1997. The
newly discovered and only known extant population of this taxon occurs
in Ventura County, California. This population occupies less than one
acre and is located in degraded dune habitat previously used for
disposal of petroleum wastes. The most significant current threats to
Astragalus pycnostachyus var. lanosissimus are direct destruction of
this population and alteration of its habitat from proposed soil
remediation, residential development, and associated activities.
Because of the small area occupied by this taxon, it is also threatened
by catastrophic natural and human-caused events. Competition from
nonnative invasive plant species and predation by nonnative snails are
additional threats. This proposal, if made final, would extend the
Act's protection to this plant. We seek additional data and invite
comments from the public on this proposed rule.
DATES: Comments from all interested parties must be received by July
26, 1999. Public hearing requests must be received by July 9, 1999.
ADDRESSES: Send comments and materials concerning this proposal and
public hearing requests to the Field Supervisor, Ventura Fish and
Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road,
Suite B, Ventura, California, 93003. Comments and materials received,
as well as the supporting documentation used in preparing this rule,
will be available for public inspection, by appointment, during normal
business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Diane Steeck, Botanist, at the address
above (telephone 805/644-1766; facsimile 805/644-3958).
SUPPLEMENTARY INFORMATION:
Background
Astragalus pycnostachyus var. lanosissimus (Ventura marsh milk-
vetch) was first described by Per Axel Rydberg (1929) as Phaca
lanosissima from an 1882 collection by S.B. and W.F. Parish made from
``La Bolsa,'' probably in what is now Orange County, California. The
combination Astragalus pycnostachyus var. lanosissimus was assigned to
this taxon by Philip Munz and Jean McBurney in 1932 (Munz 1932).
Astragalus pycnostachyus var. lanosissimus is an herbaceous
perennial in the pea family (Fabaceae). It has a thick taproot and
multiple erect, reddish stems, 40 to 90 centimeters (cm) (16 to 36
inches (in)) tall, that emerge from the root crown. The pinnately
compound leaves are densely covered with silvery-white hairs. The 27-39
leaflets are 5 to 20 millimeters (mm) (0.2 to 0.8 in) long. The
numerous yellowish-white to cream colored flowers are in dense clusters
and are 7 to 10 mm (0.3 to 0.4 in) long. The calyx teeth are 1.2 to 1.5
mm (0.04 in) long. The nearly sessile, single-celled pod is 8 to 11 mm
(0.31 to 0.43 in) long (Barneby 1964). The blooming time has been
recorded as July to October (Barneby 1964); however, the one extant
population was observed in flower in June 1997. This variety is
distinguished from Astragalus pycnostachyus var. pycnostachyus by the
length of calyx tube, calyx teeth and peduncles.
The type locality is ``La Bolsa,'' where the plant was collected in
1882 by S.B. and W.F. Parish (Barneby 1964). Based on the labeling of
other specimens collected by the Parishes in 1881 and 1882, Barneby
(1964) suggested that this collection may have come from the
[[Page 28137]]
Ballona marshes in Los Angeles County. However, Critchfield (1978)
believed that ``La Bolsa'' could easily have referred to Bolsa Chica, a
coastal marsh system located to the south in what is now Orange County.
He noted that Orange County was not made a separate County from Los
Angeles until 1889, seven years after the Parish's collection was made.
In the five decades following its discovery, Astragalus pycnostachyus
var. lanosissimus was collected only a few times, always from locations
in coastal Los Angeles and Ventura counties. In Los Angeles County it
was collected from near Santa Monica in 1882, the Ballona marshes just
to the south in 1902, and ``Cienega'' in 1904, also likely near the
Ballona wetlands. In Ventura County it was collected in 1901 and 1925
from Oxnard and in 1911 from ``Ventura, California,'' a city adjacent
to Oxnard. By 1964, Barneby (1964) believed that it had certainly been
extirpated from Santa Monica southward, noting that there was still the
possibility it survived in Ventura County (although he knew of no
locations at that time). The species was rediscovered in 1967 through
the chance collection by R. Chase of a single specimen growing by a
roadside between the cities of Ventura and Oxnard. Searches uncovered
no other living plants at that location, although some mowed remains
that were discovered on McGrath State Beach lands across the road from
the collection site were believed to belong to this taxon (information
on herbarium label from specimen collected by R.M. Chase, 1967).
Floristic (plant) surveys and focused searches conducted in the 1970s
and 1980s at historic collection locations did not locate any
populations of Astragalus pycnostachyus var. lanosissimus and the plant
was presumed extinct (Isley 1986, Spellenberg 1993, Skinner and Pavlik
1994). On June 12, 1997, a population of the plant was rediscovered by
Service biologist Kate Symonds, in a degraded coastal dune system near
Oxnard, California. This population is located about one mile from the
site of Chase's 1967 discovery at McGrath State Beach.
Almost nothing is known of the habitat requirements of Astragalus
pycnostachyus var. lanosissimus. Specimen labels from collections and
original published descriptions contain virtually no habitat
information. It is possible that some insight into its habitat may be
inferred from the habitat of the related variety, A. pycnostachyus var.
pycnostachyus, which is found in or at the high edge of coastal
saltmarshes and seeps. However, any strict concordance in habitat
requirements of these related taxa is conjectural. The newly discovered
population of Astragalus pycnostachyus var. lanosissimus occurs in a
sparsely vegetated low area, at an elevation of about 10 meters (30
feet), in a site previously used for disposal of petroleum waste
products (Impact Sciences, Inc. 1997). Dominant shrub species at the
site are Baccharis pilularis (coyote brush), Baccharis salicifolia
(mule fat), Salix lasiolepis (arroyo willow), and the nonnative
Myoporum laetum (myoporum) (Impact Sciences, Inc. 1997). The population
itself occurs with patchy vegetative cover provided primarily by
Baccharis pilularis, Baccharis salicifolia, a nonnative Carpobrotus sp.
(seafig), a nonnative beardgrass, Polypogon monspeliensis (annual beard
grass), and a nonnative annual grass, Bromus madritensis ssp. rubens
(red brome). Soils are reported to be loam-silt loams (Impact Sciences,
Inc. 1997). Soils may have been brought in from other locations as a
cap for the disposal site once it was closed. We do not know the
specific origin of the soil used to cap the waste disposal site,
however because of the costs of transport, the soil source is likely
from the immediate site or from a local source.
The population of Astragalus pycnostachyus var. lanosissimus
consisted of about 374 plants total in 1997, of which 260 were small
plants, thought to have germinated in the last year. Fewer than 65
plants in the population produced fruit in 1997 (Impact Sciences, Inc.
1997). In 1998, fewer than 200 plants were found on the site, although
a greater number were reproducing than in the previous year (Impact
Sciences, Inc. 1998). The plants are growing in an area of less than
one acre, with one outlying plant located about 50 meters from the main
group (Impact Sciences, Inc. 1998).
The land on which the only known population of Astragalus
pycnostachyus var. lanosissimus grows is privately owned. A project to
decontaminate the soils and construct a housing development on the site
is proposed (Impact Sciences, Inc. 1998). The most significant current
threats to Astragalus pycnostachyus var. lanosissimus are direct
destruction of this population and alteration of habitat from proposed
soil remediation (clean-up) and residential development activities. Due
to its small population size and the very restricted area it occupies,
this taxon is also threatened by catastrophic natural and human-caused
disturbances. Competition from nonnative, invasive, plant species and
predation from nonnative snail species are additional threats.
Previous Federal Action
Federal government actions involving Astragalus pycnostachyus var.
lanosissimus began as a result of section 12, 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. The Smithsonian Institute presented a report (House
Document No. 94-51), to Congress on January 9, 1975, and included
Astragalus pycnostachyus var. lanosissimus on List C, among those taxa
believed possibly extinct in the wild. We published a notice in the
July 1, 1975, Federal Register (40 FR 27823) of our acceptance of the
report as a petition within the context of section 4(c)(2) (petition
provisions are now found in section 4 (b)(3) of the Act) and expressed
our intent to review the status of the plant taxa named therein.
On June 16, 1976, we published a proposed rule in the Federal
Register (41 FR 24523) to list approximately 1,700 vascular plant
species pursuant to section 4 of the Act. We assembled a list, that
included Astragalus pycnostachyus var. lanosissimus, from the comments
and data received by the Smithsonian Institution and information
collected in our own files in response to House Document No. 94-51 and
the July 1, 1975, Federal Register publication. We summarized the
general comments received in relation to the 1976 proposal in the April
26, 1978, Federal Register publication (43 FR 17909). In 1978,
amendments to the Act required that all proposals over 2 years old be
withdrawn. A 1-year grace period was given to those proposals already
more than 2 years old. In a December 10, 1979, notice (44 FR 70796) we
withdrew the portion of the June 16, 1976, proposal that had not been
made final, which included Astragalus pycnostachyus var. lanosissimus.
On December 15, 1980, we published an updated candidate notice of
review for plants in the Federal Register (45 FR 82480). This notice
included Astragalus pycnostachyus var. lanosissimus in a list of
category 1 candidate species that were possibly extinct in the wild.
These category 1 candidates would have been given high priority for
listing were extant populations to be confirmed. Category 1 comprised
taxa for which sufficient information was on file to support proposals
for endangered and threatened status.
We maintained Astragalus pycnostachyus var. lanosissimus as a
category 1 candidate in subsequent
[[Page 28138]]
notices: November 28, 1983 (48 FR 53640), September 27, 1985 (50 FR
39526), and February 21, 1990 (55 FR 6184). On September 30, 1993, we
published a Federal Register notice (58 FR 51144) informing the public
that we were moving taxa whose existence in the wild was in doubt,
including Astragalus pycnostachyus var. lanosissimus, to category 2.
Category 2 comprised taxa for which there was available biological
information in our possession indicating that listing was possibly
appropriate, but the information was insufficient to support listing
the species as endangered or threatened. In the February 28, 1996,
notice of review (61 FR 7596), we informed the public that we were
discontinuing the designation of multiple categories of candidates and
that we would consider only taxa meeting the definition of former
category 1 as candidates for listing. Thus Astragalus pycnostachyus
var. lanosissimus was excluded from this and subsequent notices of
review. In 1997, A. pycnostachyus var. lanosissimus was rediscovered
and a review of the taxon's status indicated that a proposed rule was
warranted.
The processing of this proposed rule conforms with our final
listing priority guidance for fiscal years 1998 and 1999, published in
the Federal Register on May 8, 1998 (63 FR 25502). This guidance
establishes a three-tiered approach that assigns relative priorities on
a descending basis, to listing actions to be carried out under section
4 of the Act (16 U.S.C. 1531 et seq.). The guidance calls for giving
highest priority to completion of emergency listings for species facing
a significant risk to their well-being (Tier 1). The next highest
priority is for processing final decisions on pending proposed
listings, resolution of the conservation status of species identified
as candidates, processing 90-day or 12-month administrative findings on
petitions, and for a limited number of delisting/reclassification
activities (Tier 2). Third priority is the processing of petitions for
critical habitat designations and the preparation of proposed and final
critical habitat designations (Tier 3). This proposed rule for
Astragalus pycnostachyus var. lanosissimus falls under Tier 2.
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. We may determine a species 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 pycnostachyus var. lanosissimus (Ventura
marsh milk-vetch) are as follows:
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
With the exception of the extant Ventura County population,
Astragalus pycnostachyus var. lanosissimus is believed extirpated from
all other areas from which it has been collected. In Los Angeles
County, this taxon was collected in the late 1800s and early 1900s from
Santa Monica, Ballona marsh, and ``Cienega'' (probably near Ballona
marsh). These coastal areas are now urbanized within the expansive Los
Angeles metropolitan area. About 90 percent of the Ballona wetlands,
once encompassing almost 2000 acres, have been drained, dredged, and
developed into the urban areas of Marina del Rey and Venice
(Critchfield 1978; Friends of Ballona Wetlands 1998). Ballona Creek,
the primary freshwater source for the wetland, had been straightened,
dredged and channelized by 1940 (Friesen, et al. 1981). Despite
periodic surveys of what remains at the Ballona wetlands, Astragalus
pycnostachyus var. lanosissimus has not been collected there since the
early 1900s (Gustafson 1981; herbarium labels from collections by H. P.
Chandler and by E. Braunton, 1902, housed at University of California
at Berkeley Herbaria). Barneby (1964) believed that Astragalus
pycnostachyus var. lanosissimus was extirpated from all areas south of
Santa Monica by the mid-1960s. In 1987, botanists searched specifically
for Astragalus pycnostachyus var. lanosissimus at previous collection
locations throughout its range, including Bolsa Chica in Orange County
and on public lands around Oxnard in Ventura County, without success
(F. Roberts, U.S. Fish and Wildlife Service, in litt. 1987; R. Burgess,
California Native Plant Society, in litt. 1987; T. Thomas, USFWS, pers.
comm. 1997). Point Muga Naval Air Weapons Station in Southern Ventura
County may have habitat. Detailed surveys have not been conducted
there, however Astragalus pycnostachyus var. lanosissimus was not found
during cursory surveys of the base, nor has this taxon ever been
collected there in the past.
The single known population of Astragalus pycnostachyus var.
lanosissimus occurs in a degraded backdune community near the city of
Oxnard. From 1955 to 1981 the land on which it occurs was used as a
disposal site for oil field wastes (Impact Sciences, Inc. 1998). In
August 1998, the City of Oxnard released a Draft Environmental Impact
Report (DEIR) for development of this site (Impact Sciences, Inc.
1998). The project proposed for the site includes remediation of soils
contaminated with hydrocarbons, followed by construction of 364 homes
and a 6-acre lake on 91 acres of land, including that on which
Astragalus pycnostachyus var. lanosissimus grows. The proposed soil
remediation would involve excavation and stockpiling of the soils,
followed by soil treatment and redistribution of the soils over the
site (Impact Sciences, Inc. 1998). The proposed project, as described
in the DEIR, would entirely eliminate the only known population of
Astragalus pycnostachyus var. lanosissimus from this site, resulting in
the extinction of this taxon in the wild. In March 1999, a Final
Environmental Impact Report (FEIR) was released by the City of Oxnard.
This FEIR includes an alternative to the proposed project in which the
population of Astragalus pycnostachyus var. lanosissimus would not be
directly eliminated, but excavation for soil remediation would occur to
within 50 feet of the population. A 5-acre area would be left
undeveloped around the population, to serve as a buffer from the
residential development that would surround it.
B. Overuse for Commercial, Recreational, Scientific, or Educational
Purposes
Overutilization is not known to be a problem for Astragalus
pycnostachyus var. lanosissimus at present. Soon after this taxon was
discovered, the project proponent installed a fence around the
population, which appears to have been effective in minimizing
unauthorized visitation. However, some plants have been transplanted to
an off-site greenhouse. Because of the population's small size, the
removal of even modest numbers of plants from the population could
increase the risk of extinction.
C. Disease or Predation.
A sooty fungus was found on the leaves of Astragalus pycnostachyus
var. lanosissimus in late summer 1997, as leaves began to senesce (age)
and the plants entered a period of dormancy (Impact Sciences, Inc.
1998; T. Yamashita, Sunburst Plant Disease Clinic, pers. comm. 1998).
The effects of the fungus on the population are not known, but it is
possible that the fungus attacks senescing leaves in great number only
at the end of the growing season. The plants appeared robust when in
flower in June 1997, matured seed by October 1997, and were regrowing
in
[[Page 28139]]
spring 1998, after a period of dormancy, without obvious signs of the
fungus (D. Steeck, USFWS, pers. obs. 1997, 1998).
In spring 1998, during abundant seasonal rains, a nonnative snail
from the Mediterranean, Otala lactea (milk snail), was present in great
numbers in the population, feeding on adult and seedling plants of
Astragalus pycnostachyus var. lanosissimus. Manual removal of snails,
the use of snail baits, and the eventual cessation of rains reduced
snail numbers. However, in years of high rainfall they may again affect
the population.
The seeds of Astragalus pycnostachyus var. lanosissimus in 1997
were heavily infested with seed beetles (Bruchidae: Coleoptera). Seed
predation by seed beetles and weevils has been reported among other
members of the genus Astragalus (Platt et al. 1974; Lesica 1995). In a
seed collection made for conservation purposes, we found that most
fruits in 1997 partially developed at least four seeds. However seed
predation reduced the average number of undamaged seeds to only 1.8 per
fruit (D. Steeck, USFWS, and M. Meyer, California Department of Fish
and Game, unpublished data). The level of year to year variation in
seed predation and its consequences for the population of Astragalus
pycnostachyus var. lanosissimus are not known at this time.
D. The Inadequacy of Existing Regulatory Mechanisms
Astragalus pycnostachyus var. lanosissimus currently receives no
protection under Federal law, and it is not currently listed by the
State of California. However, on February 4, 1999, the California Fish
and Game Commission accepted a petition to list the species under the
California Endangered Species Act, making it a candidate for State
listing. California Senate Bill 879, passed in 1997 and effective
January 1, 1998, requires individuals to obtain a section 2081(b)
permit from the California Department of Fish and Game (CDFG) to take a
candidate species incidental to otherwise lawful activities, and
requires that all impacts be fully mitigated and all measures be
capable of successful implementation. However, these requirements have
not been tested and it will be several years before their effectiveness
can be evaluated.
Remediation of the soils on the site and any proposed development
must comply with the California Environmental Quality Act (CEQA) and
the California Coastal Act. The CEQA requires a full public disclosure
of the 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 the 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.'' Species that can be shown to meet the
criteria for State listing, such as Astragalus pycnostachyus var.
lanosissimus are considered under CEQA (CEQA Section 15380). Once
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 social or economic considerations make
mitigation infeasible. In the latter case, projects may be approved
that cause significant environmental damage, such as destruction of
endangered species. Protection of listed species through CEQA is,
therefore, dependent upon the discretion of the lead agencies.
The Coastal Zone Management Act of 1972 is a Federal statute that
allowed for the establishment of the California Coastal Act (CCA) of
1976. The CCA established a coastal zone. In Ventura County, the site
of the only known extant population of Astragalus pycnostachyus var.
lanosissimus occurs in the California Coastal Zone (Impact Sciences,
Inc. 1998). As required by the CCA, Ventura County has developed a
Coastal Land Use Plan. It currently designates the area occupied by
Astragalus pycnostachyus var. lanosissimus as Open Space, thus
amendments of the Coastal Land Use Plan will be required for approval
of a residential development on this property. Land use decisions made
by local agencies in the Coastal Zone are appealable to the California
Coastal Commission. Although the Coastal Zone designation and CEQA
require that unique biological resources, such as Astragalus
pycnostachyus var. lanosissimus, are considered in the planning
process, any protection offered by these regulatory mechanisms is
ultimately at the discretion of the local and State agencies involved
and is therefore inadequate to preclude the need to list this taxon.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
Astragalus pycnostachyus var. lanosissimus is, by virtue of its
small population size and the small area occupied, susceptible to
extinction from natural and human-caused catastrophic events. An
example of an uncertain but potentially catastrophic environmental
effect is wildfire during the summer prior to seed maturation. There is
also some potential for random events such as a plane crash (the taxon
is under the extended center flight line of the Oxnard airport, and a
crash occurred on the site in 1995 (Murphy in litt. 1997)) to cause
extinction.
Small population size also increases the susceptibility of this
taxon to extinction from competition with nonnative plant species.
Cortaderia selloana (pampas grass), Carpobrotus sp., Polypogon
monspeliensis, and Bromus madritensis ssp. rubens are invasive
nonnative plant species that occur at the site of the single extant
population (Impact Sciences, Inc. 1997). Carpobrotus sp. in particular,
are competitive, succulent species with the potential to cover vast
areas in dense clonal mats. Polypogon monspeliensis grew in high
densities around some mature individuals of Astragalus pycnostachyus
var. lanosissimus in 1998 and seedlings were germinating among patches
of Carpobrotus and Bromus in 1998 (D. Steeck, pers. obs. 1998).
Seedling survival rates in these areas have not yet been determined.
These invasive, nonnative species are associated with wholesale
conversion of native plant communities, leading to declines and local
extirpation of native species. While population trend information is
not available, the presence of these nonnative species on the site is
cause for concern that this plant community is vulnerable to conversion
and the Astragalus pycnostachyus var. lanosissimus population is at
risk.
The small population risks described above in this section are
increased by activities in the occupied habitat associated with
planning for land use at the site. For example, at least two
excavations were conducted in the population to examine the soils in
which the plants occur (D. Steeck, pers. obs. 1997) and to examine the
root structure of an adult plant (R. Smith, Impact Sciences 1998). In
April 1998, four plants from the population were removed and
transported to a greenhouse in a preliminary attempt at
transplantation. In addition to the direct removal of reproducing
individuals from the population, exploratory excavations within the
population can potentially alter the hydrology of the micro-site where
the plants are found, reduce seedling establishment by burying or
removing seeds and seedlings from the soil, and injure plant roots.
[[Page 28140]]
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
faced by Astragalus pycnostachyus var. lanosissimus in determining to
propose this rule. Residential and commercial development have resulted
in the loss and alteration of this taxon's coastal habitat and are the
most likely cause of population extirpation historically. Loss and
alteration of habitat from soil remediation activities and proposed
residential development threaten the only known extant population.
Other threats include competition from nonnative plant species and
catastrophic natural and human-caused events which could diminish or
destroy the very small extant population. Existing regulatory
mechanisms are inadequate to protect this taxon. Based on our
evaluation, the preferred action is to list Astragalus pycnostachyus
var. lanosissimus as endangered.
Critical Habitat
Critical habitat is defined in section 3 of the Act as: ``(i) the
specific areas within the geographical area occupied by the 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) which 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 is determined to be endangered or threatened. Critical
habitat is not determinable when one or both of the following
situations exist--(1) Information sufficient to perform required
analyses of the impacts of the designation is lacking, or (2) the
biological needs of the species are not sufficiently well known to
permit identification of an area as critical habitat (50 CFR
424.12(a)(2)). Our 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 threat to the species, or (2) such
designation of critical habitat would not be beneficial to the species.
For the reasons discussed below we find that designation of critical
habitat for Astragalus pycnostachyus var. lanosissimus is not prudent.
Critical habitat designation provides protection for listed species
on Federal lands and on non-Federal lands or private lands where there
is Federal involvement through authorization or funding of, or
participation in, a project or activity (Federal nexus). If such a
Federal nexus is found, then the Act provides protection through
section 7 consultation procedures. Astragalus pycnostachyus var.
lanosissimus occurs exclusively on privately owned land and the
activities constituting threats to its existence (see ``Summary of
Factors Affecting the Species'' section above) do not require Federal
involvement and therefore are not subject to consultation under section
7 of the Act. Our analysis has not identified a Federal nexus which
would trigger section 7 consultation on land where the species occurs.
With no current or future Federal nexus there will be no benefit to the
species as a result of the consultation requirements under section 7 of
the Act.
This species occurs at a single locality, occupying less than an
acre of property in a highly altered and rapidly urbanizing landscape.
Due to its exclusive occurrence on private land, and with no Federal
involvement in projects on those lands, the benefits of listing are
limited, being restricted to the protective prohibitions provided under
section 9 of the Act. As applied to plants, section 9 of the Act
prohibits the importation and exportation of listed plant species into
or from the United States. Further, under section 9 it is unlawful to
remove and reduce to possession, or to maliciously damage or destroy,
any listed plant species from areas under Federal jurisdiction. In
addition, it is unlawful to remove, cut, dig up, or damage or destroy a
listed plant species on any area in knowing violation of any State law
or regulation or in violation of a State criminal trespass law.
Finally, it is unlawful to deliver, receive, carry or transport, or
sell or offer to sell the species in interstate or foreign commerce. As
previously discussed, the residential development and soil remediation
activities threatening this species occur wholly on private land. Any
removal or destruction of this species on private land, if in
compliance with State law, would not violate section 9. Designation of
critical habitat would not make section 9 any more or less applicable
to this plant species. As such, designation of critical habitat would
provide no benefit to the species.
Section 10 allows the Secretary to permit otherwise prohibited
activity. Under certain circumstances, the Secretary may issue permits
to take wildlife and fish (but not plants) in conjunction with
otherwise legal activities (section 10(a)(1)(B)), and for scientific
purposes (section 10(a)(1)(A)). These permits extend authorization to
the applicant to impact the species, as opposed to impacting critical
habitat. Impacts to habitat may be permitted under section 10(a)(1)(B)
when the number of individual animals to be taken can not be
quantified. In the case of this plant species which occurs solely on
private land, neither section 10(a)(1)(A) nor section 10(a)(1)(B) are
applicable. Designation of critical habitat would result in no benefit
to the species under section 10 of the Act.
Because this plant species occurs only on private land with no
Federal nexus, section 7 of the act is not applicable. In addition,
critical habitat designation will not invoke the protection afforded
under section 9, and since, in this case, permitting is not applicable,
there is no section 10 requirement to meet. Neither listing nor
designation of critical habitat will require the private landowner to
undertake active management or modify any of its activities on behalf
of this species. Because all appropriate non-Federal regulating
agencies are aware of this species and its location on private land,
any additional notice to the general public and state and/or local
government due to designation of critical habitat would not increase
the protection afforded this species under the Act. Because the private
landowner and the developer have been notified of the Federal status of
this species, and because the survival and recovery of this species
depends upon their participation and cooperation, we will continue to
work with the property owner to further the conservation of the
species. We conclude therefore that no benefit to the species would be
realized through designation of critical habitat. For all of the above
reasons we find it not prudent to designate critical habitat.
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 encourages
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public awareness and results in conservation actions by Federal, State,
and local agencies, private organizations, and individuals. The Act
provides for possible land acquisition from willing sellers 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
part 402. Section 7(a)(4) of the Act 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 listed subsequently, section 7(a)(2) of the Act requires
Federal agencies to ensure that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of the
species or 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. The single known extant population of Astragalus pycnostachyus
var. lanosissimus occurs on privately owned land and our analysis has
not identified a Federal nexus that will trigger consultation
requirements under section 7 of the Act.
The listing of Astragalus pycnostachyus var. lanosissimus as
endangered would provide for the development of a recovery plan for
this taxon. Such a plan would bring together Federal, State, and local
efforts for the conservation of this taxon. The plan would establish a
framework for agencies to coordinate activities and to cooperate with
each other in conservation efforts. The plan would set recovery
priorities and describe site-specific management actions necessary to
achieve the conservation of this taxon.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered or
threatened plants. With respect to Astragalus pycnostachyus var.
lanosissimus, all prohibitions of section 9(a)(2) of the Act,
implemented by 50 CFR 17.61 for endangered plants, apply (16 U.S.C.
1538(a)(2)). 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, or remove and reduce the species to possession 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 endangered plants in knowing
violation of any State law or regulation, including State criminal
trespass law. Certain exceptions to the prohibitions apply to persons
acting in an agency capacity for the Service and to State conservation
agencies.
The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of
permits to carry out otherwise prohibited activities involving
endangered plant taxa under certain circumstances. Such permits are
available for scientific purposes and to enhance the propagation or
survival of the species. Requests for copies of the regulations on
listed species and inquiries about prohibitions and permits may be
addressed to the U.S. Fish and Wildlife Service, Endangered Species
Permits, 911 NE 11th Avenue, Portland, Oregon 97232-4181 (503/231-2063,
facsimile 503/231-6243).
It is our policy, 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 to increase public awareness of the effect of the
listing on proposed and ongoing activities within the taxon's range.
Astragalus pycnostachyus var. lanosissimus is not located on areas
currently under Federal jurisdiction. Collection, damage, or
destruction of this species on Federal lands would be prohibited
(although in appropriate cases a Federal endangered species permit may
be issued to allow collection for scientific or recovery purposes).
Such activities on areas not under Federal jurisdiction would
constitute a violation of section 9 if conducted in knowing violation
of State law or regulations, or in violation of State criminal trespass
law. Questions regarding whether specific activities would constitute a
violation of section 9, should this species be listed, should be
directed to the Field Supervisor of the Services's Ventura Fish and
Wildlife Office (see ADDRESSES section).
Public Comments Solicited
It is our intent that any final action resulting from this proposal
will be as accurate and as effective as possible. Therefore, we solicit
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule. We particularly seek comments
concerning:
(1) Biological, commercial, trade, or other relevant data
concerning any threat (or lack thereof) to Astragalus pycnostachyus
var. lanosissimus;
(2) The location of any additional populations of Astragalus
pycnostachyus var. lanosissimus and the reasons why any habitat should
or should not be determined to be critical habitat pursuant to section
4 of the Act;
(3) Additional information concerning the essential habitat
features (biotic and abiotic), range, distribution, and population size
of this taxon; and
(4) Current or planned activities in the subject area and their
possible impacts on this taxon.
Final promulgation of the regulations on Astragalus pycnostachyus
var. lanosissimus will take into consideration the comments and any
additional information we receive, and such communications may lead to
a final regulation that differs from this proposal.
The Act provides for a public hearing on this proposal, if
requested. Requests must be received within 45 days of the date of
publication of the proposal in the Federal Register. Such requests must
be made in writing and be addressed to the Field Supervisor (see
ADDRESSES section).
National Environmental Policy Act
We have determined that Environmental Assessments, 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. We
published a notice outlining the basis for this determination in the
Federal Register on October 25, 1983 (48 FR 49244).
Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to
make this notice easier to understand including answers to questions
such as the following: (1) Are the requirements in the notice clearly
stated? (2) Does the notice contain technical language or jargon that
[[Page 28142]]
interferes with the clarity? (3) Does the format of the notice
(grouping and order of the sections, use of headings, paragraphing,
etc.) Aid or reduce its clarity? (4) Is the description of the notice
in the Supplementary Information section of the preamble helpful in
understanding the notice? What else could we do to make the notice
easier to understand?
Send a copy of any comments that concern how we could make this
notice easier to understand to: Office of Regulatory Affairs,
Department of the Interior, Room 7229, 1849 C Street, NW, Washington,
DC 20240. You may e-mail your comments to this address:
Exsec@ios.doi.gov.
Required Determinations
We have examined this regulation under the Paperwork Reduction Act
of 1995 and found it to contain no information collection requirements.
References Cited
A complete list of all references cited in this proposed rule is
available upon request from the Ventura Fish and Wildlife Office (see
ADDRESSES section).
Author: The primary author of this notice is Diane Steeck, U.S.
Fish and Wildlife Service, Ventura Fish and Wildlife Office (see
ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
For the reasons given in the preamble, we propose to amend part 17
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.
4201-4205; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. Section 17.12(h) is amended 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 Status When Critical Special
Scientific name Common name listed habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Astragalus pycnostachyus var. Ventura marsh milk- U.S.A. (CA)......... Fabaceae--Pea....... E .......... NA NA
lanosissimus. vetch.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: April 28, 1999.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 99-12991 Filed 5-24-99; 8:45 am]
BILLING CODE 4310-55-P
