74468 Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 

Solid Waste and Refuse Authority 

Superfund Site without prior notice of 

intent to delete because we view this as 

a noncontroversial revision and 

anticipate no adverse comment. We 

have explained our reasons for this 

deletion in the preamble to the direct 

final deletion. If we receive no adverse 

comment(s) on this notice of intent to 

delete or the direct final notice of 

deletion, we will not take further action 

on this notice of intent to delete. If we 

receive adverse comment(s), we will 

withdraw the direct final notice of 

deletion and it will not take effect. We 

will, as appropriate, address all public 

comments in a subsequent final deletion 

notice based on this notice of intent to 

delete. We will not institute a second 

comment period on this notice of intent 

to delete. Any parties interested on 

commenting must do so at this time. For 

additional information, see the direct 

final notice of deletion which is located 

in the Rules section of this Federal 

Register.

DATES: Comments concerning this Site 

must be received by January 13, 2005.

ADDRESSES: Written comments should 

be addressed to Larry Johnson, 

Community Involvement Coordinator, 

3HS43, U.S. EPA Region III, 1650 Arch 

Street, Philadelphia, PA 19103, (215) 

814–3239.

FOR FURTHER INFORMATION CONTACT:

Romuald Roman, Remedial Project 

Manager, 3HS22, U.S. EPA Region III, 

1650 Arch Street, Philadelphia, PA 

19103, (215) 814–3212. fax: (215) 814–

3002; e-mail: roman.romuald@epa.gov.

SUPPLEMENTARY INFORMATION: For 

additional information, see the Direct 

Final Notice of Deletion which is 

located in the Rules and Regulations 

section of this Federal Register. 

Information Repositories: Repositories 

have been established to provide 

detailed information concerning this 

decision at the following address: U.S. 

EPA Region III, Regional Center for 

Environmental Information (RCEI), 1650 

Arch Street, Philadelphia, PA 19103, 

(215) 814–5364 (Monday through Friday 

8 a.m. to 4:30 p.m.) and the MasonDixon Public Library, Main Street, 

Stewartstown, Pennsylvania 17363.

List of Subjects in 40 CFR Part 300 

Environmental protection, Air 

pollution control, Chemicals, Hazardous 

waste, Hazardous substances, 

Intergovernmental relations, Penalties, 

Reporting and recordkeeping 

requirements, Superfund, Water 

pollution control, Water supply.

Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 

9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, 

1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 

3 CFR, 1987 Comp., p. 193.

Dated: October 26, 2004. 

Richard J. Kampf, 

Acting Regional Administrator, Region III.

[FR Doc. 04–27169 Filed 12–13–04; 8:45 am] 

BILLING CODE 6560–50–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AT74 

Endangered and Threatened Wildlife 

and Plants; Proposed Designation of 

Critical Habitat for Astragalus 

lentiginosus var. coachellae (Coachella 

Valley milk-vetch)

AGENCY: Fish and Wildlife Service, 

Interior.

ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

designate critical habitat for Astragalus 

lentiginosus var. coachellae (Coachella 

Valley milk-vetch) pursuant to the 

Endangered Species Act of 1973, as 

amended (Act). We are proposing to 

designate approximately 3,583 acres (ac) 

(1,450 hectares (ha)) of critical habitat in 

three units in Riverside and San 

Bernardino counties, California. Habitat 

essential to the conservation of the 

species in Riverside and San Bernardino 

counties is being excluded from critical 

habitat under section 4(b)(2) of the Act.

DATES: We will accept comments from 

all interested parties until February 14, 

2005. We must receive requests for 

public hearings, in writing, at the 

address shown in the ADDRESSES section 

by January 28, 2005.

ADDRESSES: If you wish to comment, 

you may submit your comments and 

materials concerning this proposal by 

any one of several methods: 

1. You may submit written comments 

and information to Jim Bartel, Field 

Supervisor, U.S. Fish and Wildlife 

Service, Carlsbad Fish and Wildlife 

Office, 6010 Hidden Valley Road, 

Carlsbad, California, 92009. 

2. You may hand-deliver written 

comments to our Office, at the address 

given above. 

3. You may send comments by 

electronic mail (e-mail) to 

fw1cfwocvmv@fws.gov. Please see the 

Public Comments Solicited section 

below for file format and other 

information about electronic filing. 

4. You may fax your comments to 

(760) 431–9618. 

Comments and materials received, as 

well as supporting documentation used 

in the preparation of this proposed rule, 

will be available for public inspection, 

by appointment, during normal business 

hours at the Carlsbad Fish and Wildlife 

Office at the address given above (760) 

431–9440).

FOR FURTHER INFORMATION CONTACT:

Field Supervisor, Carlsbad Fish and 

Wildlife Office (see ADDRESSES section).

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We intend that any final action 

resulting from this proposal will be as 

accurate and as effective as possible. 

Therefore, comments or suggestions 

from the public, other concerned 

governmental agencies, the scientific 

community, industry, or any other 

interested party concerning this 

proposed rule are hereby solicited. In 

particular, we are seeking comments 

concerning: 

(1) The reasons any habitat should or 

should not be determined to be critical 

habitat as provided by section 4 of the 

Act, including whether the benefit of 

designation will outweigh any threats to 

the species due to designation; 

(2) Specific information on the 

amount and distribution of habitat, and 

what habitat is essential to the 

conservation of the species and why; 

(3) Whether unoccupied habitat 

identified as such and which serves as 

a source of sand for the areas proposed 

as critical habitat should be included in 

the designation; 

(4) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat; 

(5) Any foreseeable economic, 

national security, or other potential 

impacts resulting from the proposed 

designation and, in particular, any 

impacts on small entities; 

(6) Whether our approach to 

designating critical habitat could be 

improved or modified in any way to 

provide for greater public participation 

and understanding, or to assist us in 

accommodating public concerns and 

comments;

(7) The exclusion of Federal lands 

(e.g., Bureau of Land Management and 

the U.S. Forest Service) from critical 

habitat based on their participation in 

and contribution to the conservation of 

Astragalus lentiginosus var. coachellae

under the proposed Coachella Valley 

Multiple Species Habitat Conservation 

Plan. 

If you wish to comment, you may 

submit your comments and materials 

concerning this proposal by any one of 

Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 74469

several methods (see ADDRESSES above). 

Please submit e-mail comments to 

fw1cfwocvmv@fws.gov in ASCII file 

format and avoid the use of special 

characters or any form of encryption. 

Please also include ‘‘Attn: Coachella 

Valley milk-vetch’’ in your e-mail 

subject header and your name and 

return address in the body of your 

message. If you do not receive a 

confirmation from the system that we 

have received your e-mail message, 

contact us directly by calling our 

Carlsbad Fish and Wildlife Office (see

ADDRESSES section). Please note that the 

e-mail address fw1cfwocvmv@fws.gov

will be closed out at the termination of 

the public comment period. 

Our practice is to make comments, 

including names and home addresses of 

respondents, available for public review 

during regular business hours. 

Individual respondents may request that 

we withhold their home addresses from 

the rulemaking record, which we will 

honor to the extent allowable by law. 

There also may be circumstances in 

which we would withhold from the 

rulemaking record a respondent’s 

identity, as allowable by law. If you 

wish us to withhold your name and/or 

address, you must state this 

prominently at the beginning of your 

comment. However, we will not 

consider anonymous comments. We 

will make all submissions from 

organizations or businesses, and from 

individuals identifying themselves as 

representatives or officials of 

organizations or businesses, available 

for public inspection in their entirety. 

Comments and materials received will 

be available for public inspection, by 

appointment, during normal business 

hours at the above address. 

Designation of Critical Habitat Provides 

Little Additional Protection to Species 

In 30 years of implementing the Act, 

the Service has found that the 

designation of statutory critical habitat 

provides little additional protection to 

most listed species, while consuming 

significant amounts of available 

conservation resources. The Service’s 

present system for designating critical 

habitat has evolved since its original 

statutory prescription into a process that 

provides little real conservation benefit, 

is driven by litigation and the courts 

rather than biology, limits our ability to 

fully evaluate the science involved, 

consumes enormous agency resources, 

and imposes huge social and economic 

costs). The Service believes that 

additional agency discretion would 

allow our focus to return to those 

actions that provide the greatest benefit 

to the species most in need of 

protection. 

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act 

While attention to and protection of 

habitat is paramount to successful 

conservation actions, we have 

consistently found that, in most 

circumstances, the designation of 

critical habitat is of little additional 

value for most listed species, yet it 

consumes large amounts of conservation 

resources. Sidle (1987) stated, ‘‘Because 

the Act can protect species with and 

without critical habitat designation, 

critical habitat designation may be 

redundant to the other consultation 

requirements of section 7.’’ Currently, 

only 445 species or 36 percent of the 

1,244 listed species in the U.S. under 

the jurisdiction of the Service have 

designated critical habitat. We address 

the habitat needs of all 1,244 listed 

species through conservation 

mechanisms such as listing, section 7 

consultations, the Section 4 recovery 

planning process, the Section 9 

protective prohibitions of unauthorized 

take, Section 6 funding to the States, 

and the Section 10 incidental take 

permit process. The Service believes 

that it is these measures that may make 

the difference between extinction and 

survival for many species. 

We note, however, that a recent 9th 

Circuit judicial opinion, Gifford Pinchot 

Task Force v. United States Fish and 

Wildlife Service, has invalidated the 

Service’s regulation defining destruction 

or adverse modification of critical 

habitat. We are currently reviewing the 

decision to determine what effect it may 

have on the outcome of consultations 

pursuant to Section 7 of the Act.

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits for our failure to designate 

critical habitat, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

with the most biologically urgent 

species conservation needs. 

The consequence of the critical 

habitat litigation activity is that limited 

listing funds are used to defend active 

lawsuits, to respond to Notices of Intent 

(NOIs) to sue relative to critical habitat, 

and to comply with the growing number 

of adverse court orders. As a result, 

listing petition responses, the Service’s 

own proposals to list critically 

imperiled species, and final listing 

determinations on existing proposals are 

all significantly delayed. 

The accelerated schedules of courtordered designations have left the 

Service with almost no ability to 

provide for adequate public 

participation or to ensure a defect-free 

rulemaking process before making 

decisions on listing and critical habitat 

proposals due to the risks associated 

with noncompliance with judiciallyimposed deadlines. This in turn fosters 

a second round of litigation in which 

those who fear adverse impacts from 

critical habitat designations challenge 

those designations. The cycle of 

litigation appears endless, is very 

expensive, and in the final analysis 

provides relatively little additional 

protection to listed species. 

The costs resulting from the 

designation include legal costs, the cost 

of preparation and publication of the 

designation, the analysis of the 

economic effects and the cost of 

requesting and responding to public 

comment, and in some cases the costs 

of compliance with the National 

Environmental Policy Act (NEPA). None 

of these costs result in any benefit to the 

species that is not already afforded by 

the protections of the Act enumerated 

earlier, and they directly reduce the 

funds available for direct and tangible 

conservation actions. 

Background 

Astragalus lentiginosus var. 

coachellae is found on loose windblown sands in dunes and flats, and in 

sandy alluvial washes in the northern 

Coachella Valley area, and to a limited 

extent, in northern Chuckwalla Valley. 

Its distribution in the Coachella Valley 

area roughly spans from just east of 

Cabezon to the dunes off Washington 

Avenue, north and west of Indio. The 

occurrences in the Chuckwalla Valley 

are all along a 5-mile stretch of Highway 

177 just north of Desert Center. 

Please refer to the final listing rule 

published in the Federal Register on 

October 6, 1998 (63 FR 53596) for a 

detailed discussion on the taxonomic 

history and description of this taxon. It 

is our intent in this document to 

reiterate and discuss only those topics 

directly relevant to the development 

and designation of critical habitat or 

relevant information obtained since the 

final listing. 

The primary threat to Astragalus 

lentiginosus var. coachellae is the 

74470 Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 

extensive urban development in the 

Coachella Valley (63 FR 53596). 

Urbanization has both direct and 

indirect effects on A. l. var. coachellae.

Urbanization can destroy plants and 

suitable and occupied habitat on-site, 

and indirectly degrade suitable and 

occupied habitat by blocking sand 

transport downwind of the 

development. Other threats include 

habitat destruction from future wind 

energy projects, off-highway vehicle 

(OHV) use, and spread of exotic plants, 

such as Saharan mustard (Brassica 

tournefortii) and Mediterranean grass 

(Schismus barbatus) (63 FR 53596). 

Previous Federal Actions 

The following section summarizes the 

Federal actions that occurred since the 

final listing rule of this species as 

endangered was published in the 

Federal Register on October 6, 1998. 

Please refer to the final listing rule (63 

FR 53596) for a discussion of Federal 

actions that occurred prior to the 

species being federally-listed.

At the time of listing we determined 

that designation of critical habitat 

would not provide any additional 

conservation benefits beyond those 

provided by listing the species and that 

the designation could lead to acts of 

collection or vandalism (63 FR 53596). 

On November 15, 2001, the Center for 

Biological Diversity and the California 

Native Plant Society filed a lawsuit 

against Secretary Gale Norton and the 

Service alleging that the Service 

violated the Act and the Administrative 

Procedure Act (APA) by determining 

that designating critical habitat for eight 

plant species listed as endangered or 

threatened, including Astragalus 

lentiginosus var. coachellae, was not 

prudent (Center for Biological Diversity 

et al. v. Norton, No. 01 CV 2101). A 

second lawsuit also asserting the same 

challenge was filed on November 21, 

2001, by the Building Industry Legal 

Defense Foundation (Building Industry 

Legal Defense Foundation v. Norton,

No. 01 CV 2145). 

The Court convened an Early Neutral 

Evaluation Conference on March 19, 

2002, in which the Center for Biological 

Diversity, California Native Plant 

Society, and the Building Industry Legal 

Defense Foundation participated. At the 

conference, the parties agreed that (1) 

the critical habitat determinations for 

the eight plant species at issue would be 

remanded to the Service for 

reconsideration of its previous ‘‘not 

prudent’’ determinations and (2) that 

the two cases should be consolidated 

into a single case. The parties did not 

come to agreement on an appropriate 

timeline for issuance of proposed and 

final determinations of critical habitat 

on the remand during the conference, 

but did agree to brief the Court 

regarding the appropriate schedule for 

reconsideration of the not prudent 

determination and to be bound by the 

Court’s determination. Following the 

conference, on April 8, 2002, the court 

granted a motion to intervene filed by 

the American Sand Association, the 

California Off-Road Vehicle Association, 

the American Motorcycle Association, 

Inc.—District 37, the San Diego OffRoad Coalition, and the Off-Road 

Business Association (collectively, 

‘‘intervenors’’). The motion limited the 

intervenors’’ participation to resolution 

of an appropriate timeline for 

reconsideration of the critical habitat 

determination. 

On July 1, 2002, the Court ordered the 

Service to reconsider its not prudent 

determination and publish a proposed 

critical habitat designation, if prudent, 

for Astragalus lentiginosus var. 

coachellae on or before November 30, 

2004, and to publish a final critical 

habitat designation on or before 

November 30, 2005. 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as—(i) the specific areas 

within the geographic 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 geographic 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 that are 

necessary to bring an endangered or a 

threatened species to the point at which 

listing under the Act is no longer 

necessary. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against destruction or 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7 requires consultation 

on Federal actions that are likely to 

result in the destruction or adverse 

modification of critical habitat. 

To be included in a critical habitat 

designation, the habitat must first be 

‘‘essential to the conservation of the 

species.’’ Critical habitat designations 

identify, to the extent known using the 

best scientific and commercial data 

available, habitat areas that provide 

essential life cycle needs of the species 

(i.e., areas on which are found the 

primary constituent elements, as 

defined at 50 CFR 424.12(b)). 

Our regulations state that, ‘‘The 

Secretary shall designate as critical 

habitat areas outside the geographic area 

presently occupied by the species only 

when a designation limited to its 

present range would be inadequate to 

ensure the conservation of the species’’

(50 CFR 424.12(e)). Accordingly, when 

the best available scientific and 

commercial data do not demonstrate 

that the conservation needs of the 

species so require, we will not designate 

critical habitat in areas outside the 

geographic area occupied by the species. 

Our Policy on Information Standards 

Under the Endangered Species Act, 

published in the Federal Register on 

July 1, 1994 (59 FR 34271), and our U.S. 

Fish and Wildlife Service Information 

Quality Guidelines (2002) provide 

criteria, establish procedures, and 

provide guidance to ensure that our 

decisions represent the best scientific 

and commercial data available. They 

require our biologists, to the extent 

consistent with the Act and with the use 

of the best scientific and commercial 

data available, to use primary and 

original sources of information as the 

basis for recommendations to designate 

critical habitat. When determining 

which areas are critical habitat, a 

primary source of information should be 

the listing package for the species. 

Additional information may be obtained 

from a recovery plan, articles in peerreviewed journals, conservation plans 

developed by States and counties, 

scientific status surveys and studies, 

biological assessments, or other 

unpublished materials and expert 

opinion or personal knowledge. 

Critical habitat designations do not 

signal that habitat outside the 

designation is unimportant to 

Astragalus lentiginosus var. coachellae.

Areas outside the critical habitat 

designation will continue to be subject 

to conservation actions that may be 

implemented under section 7(a)(1), and 

to the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard 

and the section 9 take prohibition, as 

determined on the basis of the best 

available information at the time of the 

action. We specifically anticipate that 

federally funded or assisted projects 

affecting listed species outside their 

designated critical habitat areas may 

still result in jeopardy findings in some 

cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 74471

plans, or other species conservation 

planning efforts if new information 

available to these planning efforts calls 

for a different outcome. 

Methods 

As required by section 4(b)(1)(A) of 

the Act, we use the best scientific and 

commercial data available in 

determining areas that are essential to 

the conservation of Astragalus 

lentiginosus var. coachellae. This 

includes information from our own 

documents, including the final rule 

listing the taxon as endangered (63 FR 

53596), recent biological surveys, 

reports, aerial photos, and other 

documentation. We also used the 

habitat model developed by the 

Coachella Valley Mountain Conservancy 

(CVMC) for the proposed Coachella 

Valley Multiple Species Habitat 

Conservation Plan (MSHCP) (CVMC 

2004), as a starting point for 

identification of essential habitat and 

compared it to data from other plant 

surveys.

We have also reviewed available 

information that pertains to the habitat 

requirements of this species. We used 

published historical surveys for 

Astragalus lentiginosus var. coachellae

and ecological descriptions of the 

Sonoran Desert (Abrams 1944, Munz 

and Keck 1959, Shreve and Wiggins 

1964, Turner and Brown 1982, Holland 

1986) to describe the range of 

environmental conditions in which the 

plant existed prior to current landscape 

changes that have resulted in the loss of 

the species’ habitats. We used data in 

reports submitted during section 7 

consultations and by biologists holding 

section 10(a)(1)(A) recovery permits to 

evaluate the habitat model developed 

for the plant (Sanders and Thomas 

Olsen Associates 1996, Service 

unpublished Geographic Information 

System (GIS) data). We also used agency 

and academic reports to describe the 

sand transport systems (Lancaster et al.

1993, Griffiths et al. 2002) and used 

reports about related varieties of 

Astragalus lentiginosus to describe its 

ecology and phenology (Beatley 1974, 

Forseth et al. 1984, and Pavlik 1985). 

Primary Constituent Elements 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12, in determining which areas to 

propose as critical habitat, we are 

required to base critical habitat 

determinations on the best scientific 

and commercial data available and to 

consider those physical and biological 

features (primary constituent elements 

(PCEs)) that are essential to the 

conservation of the species, and that 

may require special management 

considerations and protection. These 

include, but are not limited to: Space for 

individual and population growth and 

for normal behavior; food, water, air, 

light, minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

and rearing (or development) of 

offspring; and habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. 

The primary constituent elements 

required for Astragalus lentiginosus var. 

coachellae habitat are derived from the 

physical and biological features that are 

essential to the conservation of the 

species as described below. 

Space for Individual and Population 

Growth Within the Eolian (Wind-Blown) 

Sand Transport System 

Astragalus lentiginosus var. 

coachellae has a limited distribution. 

The majority of populations are found 

in the Coachella Valley area, mostly in 

and around Snow Creek, Whitewater 

River, Mission and Morongo Creeks, 

Willow Hole, Big Dune, and Coachella 

Valley Preserve areas (Bureau of Land 

Management, unpublished data 2001a). 

There are also several historic and 

recent records southeast of the 

Coachella Valley in the Chuckwalla 

Valley, along approximately a 5-mile 

portion of Highway 177 northeast of 

Desert Center (Bureau of Land 

Management, unpublished data 2001b). 

Astragalus lentiginosus var. 

coachellae populations in the Coachella 

Valley are strongly affiliated with active, 

stabilized, and shielded sandy 

substrates (Sanders and Thomas Olsen 

Associates 1996, White 2004). This 

taxon is primarily found on loose eolian 

(wind transported) or alluvial (water 

transported) sands that are located on 

dunes or flats, and along disturbed 

margins of sandy washes. The highest 

densities of A. l. var. coachellae have 

been found in locations containing large 

areas of eolian sand, including Snow 

Creek (Sanders and Thomas Olsen 

Associates 1996), Big Dune, and Willow 

Hole area (Bureau of Land Management, 

unpublished data 2001a). Within active 

and stabilized sand fields and dunes, A. 

l. var. coachellae tends to occur in 

coarser sands in the margins of dunes, 

but not in most active windswept sand 

areas (White 2004). 

Active dunes are generally 

characterized as barren expanses of 

moving sand where perennial shrub 

species are sparse. These dunes may 

intergrade with stabilized or partially 

stabilized dunes, which have similar 

sand accumulations and formations, but 

are stabilized by evergreen or deciduous 

shrubs, scattered low annuals, and 

perennial grasses. 

Active sand fields are similar to active 

dunes, but are characterized as smaller 

sand accumulations that are not of 

sufficient depth to form dune 

formations. These may be characterized 

as hummocks forming behind 

individual shrubs or clumps of 

vegetation. 

Stabilized sand fields are similar to 

active sand fields, but contain sand 

accumulations that are stabilized by 

vegetation or are armored. Armoring is 

the process where the wind picks up 

and moves small sand grains, and leaves 

behind larger sand grains forming an 

‘‘armor’’ that prevents wind from 

moving additional smaller particles 

trapped below (Sharp and Saunders 

1978). The stabilized sand fields in the 

latter case are temporary, becoming 

active when the armor is disturbed over 

large areas, or new blow sand is 

deposited from upwind fluvial 

depositional areas. 

A. l. var. coachellae are also found in 

shielded sand dunes and fields. These 

areas have similar sand formations as 

compared to active and stabilized sand 

dunes and fields, except that sand 

source and transport systems that would 

normally replenish these areas have 

been interrupted or shielded by human 

development. 

Astragalus lentiginosus var. 

coachellae also occurs in localized 

patches of eolian sand or in active 

washes that are, in some cases, fairly 

distant from large dunes or sand field 

areas (White 2004). Some of these 

localized patches of eolian sands are 

characterized as ephemeral sand 

accumulations lacking dune formation. 

This type of habitat generally occurs at 

the western end of the Coachella Valley 

where wind velocities are highest 

(Sharp and Saunders 1978).

The sandy substrates that provide 

suitable habitat for Astragalus 

lentiginosus var. coachellae are 

extremely dynamic in terms of spatial 

mobility and tendency to change back 

and forth from active to stabilized 

(Lancaster 1995). This has significant 

consequences for A. l. var. coachellae

because their population densities vary 

with different types of sandy substrates. 

For instance, the greatest densities of 

plants have been recorded on dune and 

hummock habitats, such as Big Dune, 

Snow Creek and Willow Hole, whereas 

smaller densities of plants have been 

recorded on stabilized sand fields 

(Bureau of Land Management, 

unpublished GIS data 2001a). 

Conserving a wide variety of sandy 

substrate types is important for the 

74472 Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 

conservation of A. l. var. coachellae

because of the dynamics of the eolian 

sand transport processes. 

Astragalus lentiginosus var. 

coachellae fruiting bodies are inflated, 

an apparent adaptation for being 

dispersed by wind. Protecting wind 

transport corridors between A. l. var. 

coachellae populations from obstruction 

is also important for facilitating 

adequate gene flow and maintaining 

areas that may serve as ephemeral 

habitat. 

Areas Containing the Fluvial and Eolian 

Processes That Generate Suitable 

Habitat 

Sandy habitat in the Coachella Valley 

is highly dynamic and is controlled by 

two main factors: (1) The supply of 

sand-size sediment released by the 

fluvial system (water-transported), and 

(2) the rate of eolian (wind-blown) 

transport (Griffiths et al. 2002). The 

latter is affected primarily by wind fetch 

(the length of unobstructed area exposed 

to the wind), and less by wind speed 

and duration, availability and size of 

sand in channel bottoms, presence of 

natural and artificial windbreaks, and 

the density and size of natural 

vegetation in channels and among sand 

dunes. 

Most of the suitable sandy habitats in 

the Coachella Valley are generated from 

several drainage basins in the San 

Bernardino, Little San Bernardino, and 

San Jacinto mountains and Indio Hills 

(Griffiths et al. 2002, Lancaster 1997). 

Sediment is washed from hill slopes 

and channels in the headwaters and is 

transported downstream in stream 

channels during infrequent flood events 

(Griffiths et al. 2002). Fluvial transport 

is the dominant mechanism that moves 

sediment into fluvial depositional areas 

in the Coachella Valley (Griffiths et al.

2002). Some sediment is stored on 

terraces within the channels, whereas 

during larger flood events, sediment is 

stored on the bajada (large, coalescing 

alluvial fans) surface as floodplain 

deposits or is transported through the 

bajada in channelized washes and 

deposited over broad depositional areas. 

The largest depositional area in the 

Coachella Valley is in the western end 

of the Whitewater River, northwest of 

the City of Palm Springs (Griffiths et al.

2002). For sufficient fine-grained sands 

to reach the eolian system in the valley 

floor and become suitable Astragalus 

lentiginosus var. coachellae habitat, it is 

necessary to protect major fluvial 

channels that transport source sand 

from the surrounding drainage basins as 

well as bajadas and depositional areas. 

The Coachella Valley Multiple Species 

Habitat Conservation Plan (MSHCP) 

identifies the protection of the abovementioned essential ecological 

processes, including sand source/

transport systems as a species 

conservation goal. 

The narrow San Gorgonio Pass is 

between the two highest peaks in 

southern California, San Gorgonio 

Mountain (11,510 ft., 3,508 m) to the 

north and San Jacinto Mountain (10,837 

ft., 3,303 m) to the south. Westerly 

winds funneling through San Gorgonio 

Pass are the dominant mechanism by 

which eolian sands are transported from 

bajadas and fluvial depositional areas to 

eolian deposits in the Coachella Valley 

(Sharp and Saunders 1978, Griffiths et 

al. 2002). Astragalus lentiginosus var. 

coachellae is associated with various 

types of sandy habitats that are formed 

by these eolian deposits (Sanders and 

Thomas Olsen Associates 1996, White 

2004). In order to maintain adequate 

replenishment of eolian sands into 

eolian depositional areas, it is important 

that sand-transport corridors between 

fluvial and eolian depositional areas 

remain unobstructed for wind passage. 

The strong wind energy in this region 

can also erode sands from wash margins 

and suitable A. l. var. coachellae

habitat, thereby shifting A. l. var. 

coachellae habitat into other areas, and 

thereby allowing the taxon to disperse 

and colonize new habitat. As a result, it 

is also necessary to protect sufficient 

areas that allow for these dynamic 

eolian sands to shift in their 

distribution. 

Pursuant to our regulations, we are 

required to identify primary constituent 

elements essential to the conservation of 

Astragalus lentiginosus var. coachellae,

together with the proposed designation 

of critical habitat that is essential to the 

conservation of the species. In 

identifying primary constituent 

elements, we used the best available 

scientific and commercial data 

available. The physical ranges described 

below in the primary constituent 

elements may not capture all of the 

variability that is inherent in the natural 

systems that support A. l. var. 

coachellae. The primary constituent 

elements determined essential to the 

conservation of A. l. var. coachellae are 

the following: 

1. Unconsolidated sands stored 

within rivers and tributaries in the San 

Bernardino, Little San Bernardino, and 

San Jacinto Mountains and Indio Hills. 

The unconsolidated sands stored in 

these rivers and tributaries are not 

occupied by A. l. var. coachellae, but 

represent the original source of the loose 

sand that form the sand dunes and flats 

that are occupied by this plant. 

2. Unconsolidated sands deposited on 

the alluvial fans of the San Bernardino, 

Little San Bernardino, and San Jacinto 

Mountains and Indio Hills. The 

unconsolidated sands deposited on 

these alluvial fans are sporadically 

occupied by A. l. var. coachellae; and, 

importantly, are transported by wind 

and water to form the fluvial and eolian 

sand dunes and flats that are occupied 

in greater numbers by this plant;

3. Suitable flooding regimes to 

transport unconsolidated sands from 

rivers and tributaries to the alluvial fans 

of the San Bernardino, Little San 

Bernardino, and San Jacinto Mountains 

and Indio Hills; 

4. Suitable wind and flooding regimes 

to transport unconsolidated sands 

deposited on the alluvial fans of the San 

Bernardino, Little San Bernardino, and 

San Jacinto Mountains and Indio Hills 

to the fluvial and eolian depositional 

areas, including areas west of Edom 

Hill/Willow Hole reserve, areas west of 

Coachella Valley Preserve, and the 

Whitewater Floodplain area that are 

occupied by A. l. var. coachellae.

5. Eolian sands on active, stabilized, 

and shielded sand dunes or fields, and 

sandy alluvial sites in washes within 

the San Gorgonio/Whitewater River 

eolian sand transport system, Mission 

Creek/Morongo Wash eolian sand 

transport system, and the Thousand 

Palms eolian sand transport system that 

are occupied by A. l. var. coachellae.

Criteria Used To Identify Critical 

Habitat 

We are proposing to designate critical 

habitat on lands that we have 

determined contain primary constituent 

elements and may be in need of special 

management or protection for the 

conservation of Astragalus lentiginosus

var. coachellae. These areas have the 

primary constituent elements described 

above. We have also identified and are 

seeking comment on whether to include 

a number of unoccupied areas which 

serve as a source of the sand identified 

as a primary constituent element for the 

species. 

Astragalus lentiginosus var. 

coachellae is one of the species 

suggested for coverage by the proposed 

Coachella Valley MSHCP. A spatially 

explicit habitat model for the plant in 

the Coachella Valley spanning from 

Cabezon to Thousand Palms was created 

to assist in the design of preserves and 

to evaluate the potential benefits of the 

MSHCP on Astragalus lentiginosus var. 

coachellae (Coachella Valley Mountain 

Conservancy (CVMC) 2004). We are 

using this habitat model to assist us in 

identifying specific areas essential to the 

conservation of the taxon. 

Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 74473

The model was developed from 

occurrence data for Astragalus 

lentiginosus var. coachellae (Bureau of 

Land Management, unpublished data 

2001a). Environmental variables 

associated with the occurrence locations 

were identified and maps containing 

those variables were combined with GIS 

land use and habitat information to 

create the model. Eight types of habitats 

were used in the model: (1) Margins of 

active dunes, (2) active shielded desert 

dunes, (3) stabilized desert dunes, (4) 

stabilized sand fields, (5) stabilized 

shielded sand fields, (6) ephemeral sand 

fields, (7) active sand fields, and (8) 

mesquite hummocks. The habitat types 

used to create the model represented 

conditions that result from the dynamic 

process of sand movement in the 

Coachella Valley floor. The active dunes 

and sand fields form where sand 

movement from fluvial systems cross 

the eolian sand transport corridor where 

it is relatively unobstructed. Mesquite 

hummocks are areas where large clumps 

of low-growing mesquite may form 

hummocks within sand dunes. The 

hummocks are created by the mesquite, 

which reduces the wind velocity 

occurring across the ground, thus 

causing sediment to fall from the wind 

and collect near the plant. Large sand 

depositions onto the valley floor are 

episodic (Griffiths et al. 2002). In 

between flood events that deposit large 

amounts of sand available for 

transportation onto the valley floor, 

strong winds are constantly moving 

sand forward and leaving patches of 

gravel or cobble in the middle of sand 

fields. Holland (1986) defined this 

mosaic of sandy patches as an 

‘‘ephemeral sand field.’’ The Coachella 

Valley floor now contains several 

development projects in front of or on 

top of sand sources or transport 

corridors that have shielded some sandy 

areas from being replenished with new 

eolian sands (CVMC 2004). Stabilized 

sand fields and dunes are sandy areas 

where sand movement is limited due to 

natural obstruction of wind from shrubs, 

herbs, and grasses (Holland 1986). 

Because the model has not been 

refined with any field data since it was 

developed (CVMC 2004), we reviewed 

the validity of the environmental 

variables used to create the model with 

occurrence data and information about 

the plant’s ecology. We found records 

for Astragalus lentiginosus var. 

coachellae in all of the natural 

communities used to create the model. 

The proposed critical habitat includes a 

mosaic of these habitat types, as well as 

intervening areas of ephemeral habitat 

to allow for the transport of winddispersed seed pods and eolian sands 

between locations containing large areas 

of habitat.

Astragalus lentiginosus var. 

coachellae seeds germinate in response 

to winter rains (White 2004). Also in 

response to these winter rains, 

seasonally dormant root crowns (the 

point at which the root and stem of a 

plant meet) sprout new shoots. The date 

of first flowering may be as early as 

December and can continue into May, 

though the majority of flowering 

specimens have been collected in March 

and especially in April (White 2004). 

The first date of fruit may be as early as 

February, but fruit peaks in April and 

May as determined by seasonal 

collections. At maturity, the pods dry 

and fall to the ground, where they are 

then dispersed by wind. As summer 

progresses, the vegetation dies above the 

root mass, with an unknown proportion 

of plants persisting into the following 

summer and fall as dormant root crowns 

(White 2004). A. l. var. coachellae

populations can survive drought periods 

as dormant seeds (seed bank), and as a 

consequence, the numbers of aboveground plants at any given time is only 

a limited temporal indication of 

population size (White 2004). It is not 

known how long A. l. var. coachellae

seeds may remain viable, but studies on 

another Astragalus lentiginosus variety 

(var. micans) demonstrate that buried 

seeds may remain viable for at least 

eight years (Pavlik and Barbour 1986). 

Therefore, we also considered areas as 

essential where suitable habitat did not 

contain above-ground individuals, but 

may contain seed banks and dormant 

root crowns necessary for the survival 

and recovery of A. l. var. coachellae.

As stated earlier, the sand transport 

systems are very important for 

sustaining the various types of sandy 

habitats required by Astragalus 

lentiginosus var. coachellae in the 

Coachella Valley. The eolian sands in 

the valleys originate in the drainage 

basins in the surrounding mountains. 

Major precipitation and flooding 

episodes erode sediment from the 

hillslopes and carry it downstream 

through the fluvial systems. Finegrained sediments are deposited in 

either bajadas (alluvial fans) or 

depositional areas that form the supply 

of sand for the eolian sand transport 

system. We have identified but have not 

at this time proposed for designation as 

critical habitat major channels (> 15.24 

m (50 ft) in width) in the fluvial systems 

from mountain watersheds surrounding 

the Coachella Valley into the valley 

floors. The width of the channels 

selected for identification as possible 

critical habitat include only major 

channels and not all minor tributaries in 

the drainages. The identified but not 

proposed areas also include bajadas and 

depositional areas where channels 

deposit sands for the eolian sandtransport system. 

Habitat eligible for designation was 

mapped using GIS and refined using 

topographical and aerial map coverages. 

To accomplish this, we first identified 

and mapped areas of suitable habitat 

supporting Astragalus lentiginosus var. 

coachellae that contained the primary 

constituent elements and belonged to 

one of three major sand transport 

systems (San Gorgonio and Whitewater 

River system, Mission creek/Morongo 

Wash system, and the Indio Hills/

Thousand Palms system) in the 

Coachella Valley; these systems support 

a majority of Astragalus lentiginosus

var. coachellae’s population. We 

determined eligible habitat as consisting 

of large contiguous areas of suitable 

habitat as well as small intervening 

areas of unsuitable habitat for 

maintenance of sand movement 

between areas of suitable habitat. Some 

outlying areas of suitable habitat were 

not included because they were either 

too distant from other large areas of 

suitable habitat or were isolated by 

development. We also decided that 

suitable habitat outside of the preferred 

alternative reserve design for the draft 

Coachella Valley MSHCP was not 

necessary to this designation since 

adequate areas for conservation are 

generally being proposed within the 

MSHCP’s reserve system. 

Next, based on studies on the 

geomorphological processes of sediment 

movement in the Coachella Valley by 

Lancaster (1993) and Griffith et al.

(2002), we identified and mapped 

drainage basins that provide sediment 

for the three major sand transport 

systems in the Coachella Valley. Based 

on Griffith et al. (2002), the drainages in 

eastern San Bernardino, western Little 

San Bernardino Mountains, northern 

San Jacinto Mountains, and Indio Hills, 

that contribute sediment to the 

Coachella Valley include the San 

Gorgonio River, Whitewater River, 

Snow Canyon, San Jacinto 1 and 2, 

Stubbes Canyon, Cottonwood Canyon, 

Garnet Wash, Mission Creek, Dry 

Morongo, lower Little Morongo Creek, 

lower Big Morongo south of Morongo 

Valley, and drainages in the southern 

flank of Indio Hills west of Thousand 

Palms Canyon. While Griffiths et al.

(2002) identified whole drainage areas 

of the above-mentioned washes that 

contribute sediment to depositional 

areas on the floor of the Coachella 

Valley, we only included the stream 

channels themselves. Thus, we were 

74474 Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 

able to substantially decrease the 

amount of land identified for possible 

addition to the critical habitat 

designation. We are also considering 

major rivers and tributaries draining the 

surrounding mountains and hills, 

bajadas, and depositional areas in the 

floodplains where the fluvial channels 

deposit sediment. The combined extent 

of these areas are shown on the maps 

accompanying this proposal as 

‘‘unoccupied habitat:sand source’’. 

One of the Coachella Valley 

Association of Government’s (CVAG) 

objectives for conserving A. l. var. 

coachellae in their draft Coachella 

Valley MSHCP is to protect ecological 

processes, including sand source/

transport systems and biological 

corridors and linkages among conserved 

populations for seed dispersal and shifts 

in species distribution over time (CVMC 

2004). The draft MSHCP included areas 

containing these ecological processes 

and biological corridors in their 

preferred alternative reserve design. 

Essential areas proposed for critical 

habitat include the same areas 

mentioned above as well as several 

other drainages that are beyond the draft 

MSHCP planning area boundary. 

After creating a GIS coverage of the 

essential areas, we legally described the 

boundaries of the proposed critical 

habitat, areas proposed for exclusion, 

and the unoccupied habitat identified 

for possible inclusion using a 100-meter 

grid to establish Universal Transverse 

Mercator (UTM) North American Datum 

27.

Whenever possible, areas not 

containing the primary constituent 

elements, such as developed areas, were 

not included in the boundaries of 

proposed critical habitat. However, we 

did not map critical habitat in enough 

detail to exclude all developed areas, or 

other areas unlikely to contain the 

primary constituent elements essential 

for the conservation of Astragalus 

lentiginosus var. coachellae. Areas 

within the boundaries of the mapped 

units, such as buildings, roads, parking 

lots, railroad tracks, canals, and other 

paved areas, are excluded from the 

designation by text, but these exclusions 

do not show on the maps because their 

scale is too small. 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the areas determined to 

have primary constituent elements may 

require special management 

considerations or protections. As we 

undertake the process of designating 

critical habitat for a species, we first 

evaluate lands defined by those physical 

and biological features essential to the 

conservation of the species for inclusion 

in the designation pursuant to section 

3(5)(A) of the Act. Secondly, we 

evaluate lands defined by those features 

to assess whether they may require 

special management considerations or 

protection. Threats to those primary 

constituent elements are caused by the 

direct and indirect effects of urban 

development, golf course construction, 

exotic plant species, energy projects, 

and OHV impacts. 

On private lands, urban and golf 

course developments destroy plants and 

occupied habitat directly. Large housing 

and golf course developments may also 

affect the localized wind and flooding 

regimes by reducing wind movement by 

the structures and landscaping and by 

changing the flooding and drainage 

patterns. Occupied habitats downstream 

and downwind of these developments, 

dependent upon the continuous supply 

of loose unconsolidated sands for their 

long-term existence, may be degraded 

by the alteration, blockage, and 

reduction in their supply of sand. 

Threats to the species may occur from 

urban developments that are not 

designed to reduce direct impacts to 

Astragalus lentiginosus var. coachellae

and do not allow sand transport to 

occupied habitats downstream and 

downwind from these projects. 

On both private and public lands, 

invasive exotic plant species, such as 

Saharan mustard (Brassica tournefortii), 

Mediterranean grass (Schismus 

barbatus), and Russian thistle (Salsola 

tragus), out compete and displace 

Astragalus lentiginosus var. coachellae

and stabilize loose sediments and thus 

reduce transport of sediment to 

downwind habitats occupied by this 

species. Dense populations of Saharan 

mustard have recently invaded the 

Snow Creek area, which stabilizes the 

soils and thus reduces eolian sand 

transport to downwind depositional 

areas. The dense numbers of mustard 

may also compete with A. l. var. 

coachellae for limited resources, such as 

water. Russian thistle is also thought to 

stabilize soils as well as compete with 

A. l. var. coachellae for limited 

resources. Mediterranean grasses have 

been a problem in the Coachella Valley 

because they grow on loose sandy soils, 

which eventually causes stabilization of 

the soil and a degradation of suitable 

habitat, as well as possibly out 

competing A. l. var. coachellae for 

limited resources. The survival of A. l.

var. coachellae is threatened by these 

invasive species. 

On both private and public lands, 

unauthorized OHV use may destroy 

plans and occupied habitats directly. 

The A. l. var. coachellae is threatened 

by lack of law enforcement patrols 

which could reduce unauthorized OHV 

use on private lands occupied by this 

plant and to direct OHV use to areas 

approved for this recreation activity. 

On public lands, the construction and 

operation of sand and gravel mining, 

dams, and percolation ponds can 

directly impact plants and occupied 

habitat and decrease the amount of 

fluvial transported sediments to 

deposition areas downstream occupied 

habitats. For example, the percolation 

ponds constructed on Bureau of Land 

Management areas resulted in the direct 

loss of plants and occupied habitat and 

may have altered the transport of sand 

to downstream occupied habitats. 

Threats to the species are the lack of 

project design and operation of sand 

and gravel mining, dams, and 

percolation ponds to reduce direct 

impacts to Astragalus lentiginosus var. 

coachellae and that reduce sand 

transport to occupied habitats 

downstream and downwind from these 

facilities. 

Proposed Critical Habitat Designation

We determined that approximately 

20559 ac (8320 ha) of eligible occupied 

habitat exists for Astragalus lentiginosus

var. coachellae in San Bernardino and 

Riverside Counties, California (Table 1). 

We are proposing a designation of 3583 

ac (1450 ha) in three units as critical 

habitat for A. l. var. coachellae (Table 

2). Eligible occupied habitat in 

Riverside County is being excluded 

from the proposed critical habitat 

designation (See Exclusions Under 

Section 4(b)(2) of the Act for a detailed 

discussion below.). The proposed 

critical habitat designation described 

below constitutes our best assessment of 

the areas occupied by A. l. var. 

coachellae with primary constituent 

elements that may require special 

management or protection. The three 

units proposed for designation as 

critical habitat are: (1) Whitewater River 

System, (2) Mission Creek and Morongo 

Wash System, and (3) Thousand Palms 

System.

Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 74475

TABLE 1.—AREAS DETERMINED TO BE ESSENTIAL FOR ASTRAGALUS LENTIGINOSUS VAR. COACHELLAE (COACHELLA

VALLEY MILK-VETCH) AND THE AREAS PROPOSED FOR EXCLUSION FROM THE FINAL CRITICAL HABITAT DESIGNATION. 

Critical habitat unit Area determined to be 

essential (Ac/Ha) 

Area proposed for exclusion from the proposed critical habitat 

designation (Ac/Ha) 

1. Whitewater River System ........................................................................................................ 9,625 ac .......................

(3,895 ha) ....................

6,704 ac. 

(2,713 ha). 

2. Mission Creek/Morongo Wash System ................................................................................... 5,834 ac .......................

(2,361 ha) ....................

5,229 ac. 

(2,116 ha). 

3. Thousand Palms System ........................................................................................................ 5,101 ac .......................

(2,064 ha) ....................

5,043 ac. 

(2,041 ha) 

Total ..................................................................................................................................... 20,559 ac .....................

(8,320 ha) ....................

16,976 ac. 

(6,870 ha). 

TABLE 2.—CRITICAL HABITAT UNITS PROPOSED FOR ASTRAGALUS LENTIGINOSUS VAR. COACHELLAE (COACHELLA VALLEY

MILK-VETCH) BY COUNTY AND LAND OWNERSHIP. 

Critical habitat unit County BLM FWS State lands 

commission Private Total 

1. Whitewater River System Riverside, San Bernardino ... 2,537 ac ........

(986 ha) ........

0 ac ...............

(0 ha) ............

32 ac .............

(13 ha) ..........

452 ac ...........

(183 ha) ........

2,921 ac. 

(1,182 ha). 

2. Mission Creek and 

Morongo Wash System.

Riverside, San Bernardino ... 415 ac ...........

(168 ha) ........

0 ac ...............

(0 ha) ............

0 ac ...............

(0 ha) ............

190 ac ...........

(77 ha) ..........

605 ac. 

(245 ha). 

3. Thousand Palms System Riverside .............................. 24 ac .............

(10 ha) ..........

32 ac .............

(12 ha) ..........

1 ac ...............

(1 ha) ............

0 ac ...............

(0 ha) ............

57 ac. 

(23 ha). 

Total .............................. .............................................. 2,876 ac ........

(1,164 ha) .....

32 ac .............

(12 ha) ..........

33 ac .............

(14 ha) ..........

643 ac ...........

(260 ha) ........

3,583 ac. 

(1,450 ha). 

We present brief descriptions of all 

units, and reasons why their primary 

constituent elements may be in need of 

special management or protection, 

below. 

Unit 1: Whitewater River Unit, Riverside 

County, California 

Unit 1 is 2921 ac (1182 ha) in size and 

includes the physical and biological 

components necessary for the 

conservation of Astragalus lentiginosus

var. coachellae and require special 

management considerations. The 

Whitewater Unit is comprised of Bureau 

of Land Management (BLM) and State 

Commission lands between just east of 

Cabezon, California in the San Gorgonio 

Pass to Palm Drive, south of Interstate 

Highway 10. This Unit is essential to the 

conservation of the species because it is 

part of a complete sand transport system 

for the Whitewater River System that is 

occupied by A. l. var. coachellae.

Fluvial sediments from these drainages 

are transported downstream in flood 

events into either the San Gorgonio or 

Whitewater River and are then 

deposited in the Whitewater River 

fluvial deposition zones on both sides of 

Indian Avenue. Strong westerly and 

northwesterly winds funneling through 

the San Gorgonio Pass transport eolian 

sands from these fluvial depositional 

zones along the Whitewater River sand 

transport corridor. Expansion of the 

Coachella Valley downwind results in a 

rapid decrease of wind energy toward 

Indio (Sharp and Saunders 1978), which 

results in deposition of eolian sands. 

Historically, the eolian depositional area 

was east of Palm Springs in an area 

called the Big Dune. Recent 

development has reduced or eliminated 

the natural transport of eolian sands 

into Big Dune and as a consequence 

much of these sands are now deposited 

on the windward side of this 

development south of Interstate 10. This 

sand transport system contains records 

of several large populations of A. l. var. 

coachellae in the Snow Creek area and 

Whitewater River floodplain. Because of 

the ephemeral nature of the sandy 

habitats in the Coachella Valley and 

given that there is little known about 

which sandy habitats are most suitable 

for the taxon, protecting the wide 

variety of sandy substrates in this unit 

is important for ensuring the long-term 

persistence and recovery of A. l. var. 

coachellae. We considered these other 

parts of the sand transport system as 

essential, but excluded them from this 

proposed rule because they are within 

the Coachella Valley MSHCP preferred 

alternative reserve design on lands that 

are being conserved by Permittees to the 

MSHCP (see Discussion in Relationship 

of Critical Habitat to the pending 

Coachella Valley Multiple Species 

Habitat Conservation Plan (MSHCP).

Unit 1 contains all of the primary 

constituent elements described in the 

Primary Constituents Element section 

above, including areas that receive 

sands from source/transport areas, 

which include the following: 

Unconsolidated sands that originate 

from rivers and tributaries in the San 

Bernardino and San Jacinto Mountains 

(PCE number 1); unconsolidated sands 

that originate from sand deposited on 

the alluvial fans and floodplains of the 

San Bernardino and San Jacinto 

Mountains (PCE number 2); suitable 

flooding regimes to transport 

unconsolidated sands from rivers and 

tributaries to the alluvial fans and 

floodplains of the San Bernardino and 

San Jacinto Mountains (PCE number 3); 

suitable wind regimes to transport 

unconsolidated sands deposited on the 

alluvial fans and floodplains of the San 

Bernardino and San Jacinto Mountains 

to the eolian depositional areas (PCE 

number 4); and eolian sands on active, 

stabilized, and shielded sand dunes or 

fields, and sandy alluvial sites in 

washes within the San Gorgonio/

Whitewater River eolian sand transport 

system (PCE number 5). 

The primary constituent elements 

found in Unit 1 may be in need of 

special management or protection 

74476 Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 

because the reduction or loss of the 

transport of eolian sand, which 

maintains suitable habitat for Astragalus 

lentiginosus var. coachellae and the 

invasion of exotic weeds. There are 

already obstructions to sand transport 

within this unit, such as the percolation 

ponds located in the Whitewater River. 

The Whitewater River fluvial 

depositional area has been reduced by 

nearly 50 percent by the percolation 

ponds along the south edge of the river 

(Griffiths et al. 2002). The percolation 

ponds trap fluvial sediment that would 

become available for the eolian 

transport system. Special management 

may be required to alter the position of 

these percolation ponds so that more 

fluvial sediment is allowed to pass 

down the river channel into the 

depositional area (Griffiths et al. 2002). 

This unit is also threatened by 

obstructions in major channels (i.e., 

sand mining operations) that transport 

fluvial sediment downstream to fluvial 

depositional areas. This unit is also 

threatened by the effects of invasive 

weeds, such as Brassica tournefortii

(Saharan mustard) and Shismus 

barbatus (Mediterranean grass) to A. l.

var. coachellae (63 FR 53596, October 6, 

1998). Saharan mustard and 

Mediterranean grasses are extremely 

dense in the western portion of this 

unit, particularly around the Snow 

Creek area, and there are concerns that 

this dense population of weeds may out 

compete A. l. var. coachellae for limited 

resources. 

Unit 2: Mission Creek and Morongo 

Wash Unit, Riverside County, California 

Unit 2 is 605 ac (245 ha) in size and 

includes the full physical and biological 

components necessary for the 

conservation of Astragalus lentiginosus

var. coachellae and supports habitats 

that contain the physical and biological 

features essential to the conservation of 

the species and require special 

management considerations. The 

Mission Creek and Morongo Wash Unit 

is BLM lands north of Interstate 

Highway 10 between Palm Drive and 

Date Palm Drive, south of 20th Avenue. 

This Unit is essential to the 

conservation of the species because it is 

part of a complete sand transport system 

for the Mission Creek/Morongo Wash 

System that is occupied by A. l. var. 

coachellae. Fluvial sediment from these 

drainages is transported downstream 

into the Mission Creek-Morongo Wash 

fluvial deposition zones between the 

west splay of Mission Creek and the east 

splay of Morongo Creek north of 

Interstate 10 and south of the Banning 

(San Andreas) Fault (Griffiths et al.

2002). Strong westerly and 

northwesterly winds funneling through 

the San Gorgonio Pass transport eolian 

sands from these fluvial depositional 

zones across the sand transport corridor 

and into the aggradation areas in the 

Edom Hill/Willow Hole Reserve area. 

We considered these other parts of the 

sand transport system as essential, but 

excluded them from this proposed rule 

because they are within the Coachella 

Valley MSHCP preferred alternative 

reserve design on lands that are being 

conserved by Permittees to the MSHCP 

(see Discussion in Relationship of 

Critical Habitat to the pending 

Coachella Valley Multiple Species 

Habitat Conservation Plan (MSHCP). 

This unit provides habitat for several 

A. l. var. coachellae populations, such 

as a large population of nearly 1,000 

plants recorded in 1982 (CVAG 

unpublished data 2004). This unit also 

contains the Edom Hill/Willow Hole 

Reserve area that protect significant 

habitat for A. l. var. coachellae. 

Unit 2 contains all of the primary 

constituent elements described in the 

Primary Constituents Element section 

above, including areas that receive 

sands from source/transport areas, 

which include the following: 

Unconsolidated sands stored within 

rivers and tributaries in the San 

Bernardino and Little San Bernardino 

Mountains (PCE number 1); 

unconsolidated sands deposited on 

alluvial fans of the San Bernardino and 

Little San Bernardino (PCE number 2); 

suitable flooding regimes to transport 

unconsolidated sands from rivers and 

tributaries to the alluvial fans of the San 

Bernardino and Little San Bernardino 

Mountains which are then transported 

to eolian depositional areas (PCE 

number 3); suitable wind and flooding 

regimes to transport unconsolidated 

sands deposited on the alluvial fans of 

the San Bernardino and Little San 

Bernardino Mountains to the fluvial and 

eolian depositional areas (PCE number 

4); and eolian sands on active, 

stabilized, and shielded sand dunes or 

fields, and sandy alluvial sites in 

washes within the Mission Creek/

Morongo Wash eolian sand transport 

system (PCE number 5). 

The primary constituent elements 

found in Unit 2 may be in need of 

special management or protection 

because Unit 2 is threatened by the loss 

of the transport of eolian sand to 

maintain suitable habitat for the plant. 

Exotic weeds are also invading areas of 

suitable habitat and are a threat to 

Astragalus lentiginosus var. coachellae.

For further information on the threats to 

this species in Unit 2 see the final 

listing rule for A. l. var. coachellae (63 

FR 53596, October 6, 1998). 

Unit 3: Thousand Palms Unit, Riverside 

County, California 

Unit 3 consists of 57 ac (23 ha) in size 

and includes some physical and 

biological components necessary for the 

conservation of Astragalus lentiginosus

var. coachellae and supports habitats 

that contain the physical and biological 

features essential to the conservation of 

the species and require special 

management considerations. The 

Thousand Palms Unit is comprised of 

BLM lands in the Coachella Valley 

preserve along Ramon Road. This Unit 

is essential to the conservation of the 

species because it is part of a complete 

sand transport system for the Coachella 

Valley Preserve that is occupied by A. 

l. var. coachellae. Fluvial sediment from 

the surrounding mountain drainages is 

transported downstream into the 

alluvial fans south of Indio Hills. Strong 

westerly and northwesterly winds 

transport eolian sands from these fluvial 

depositional zones across the sand 

transport corridor and into the 

aggradation areas in the Coachella 

Valley Preserve. We considered these 

other parts of the sand transport system 

as essential, but excluded them from 

this proposed rule because they are 

within the Coachella Valley MSHCP 

preferred alternative reserve design on 

lands that are being conserved by 

Permittees to the MSHCP (see 

Discussion in Relationship of Critical 

Habitat to the pending Coachella Valley 

Multiple Species Habitat Conservation 

Plan (MSHCP).

The Coachella Valley Preserve was 

originally established to conserve the 

endangered fringe-toed lizard (Uma 

inornata) and includes Federal, State of 

California, and private lands. The 

Coachella Valley Preserve is managed to 

conserve sand-dependent species and 

the long-term viability of these lands for 

A. l. var. coachellae is dependent upon 

maintaining a functional sand transport 

system. Conserving a complete sand 

transport system increases the 

likelihood that fresh eolian and fluvial 

sands will be brought into areas of 

suitable habitat and create a variety of 

sandy habitats that support A. l. var. 

coachellae, such as sandy washes, 

dunes, and flats. Moreover, this unit is 

essential because it is located in the 

easternmost portion of A. l. var. 

coachellae’s range in the Coachella 

Valley. Maintaining the historical range 

with a distribution that is hydrologically 

independent and physically isolated 

from the other units will reduce the 

potential vulnerability and increase the 

ability of this species to recover from 

environmental fluctuations and 

catastrophic events that may occur 

Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 74477

elsewhere within the range of this 

species. This unit is also part of a sand 

transport system that supports several 

large populations of A. l. var. 

coachellae, including two records in 

1995 of approximately 300 plants 

(CVAG unpublished data 2004). 

Unit 3 contains two of the primary 

constituent elements described in the 

Primary Constituents Element section 

above, including suitable flooding 

regimes to transport unconsolidated 

sands from rivers and tributaries to the 

alluvial fans of the Indio Hills which are 

then transported to the eolian 

depositional areas (PCE number 3); and 

sandy alluvial sites in washes within 

the Thousand Palms eolian sand 

transport system (PCE number 5). 

The primary constituent elements 

found within Unit 3 may be in need of 

special management or protection 

because of potential threats to fluvial 

transport of sediment and the eolian 

sand transport corridor in the Thousand 

Palms area. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7 of the Act requires Federal 

agencies, including the Service, to 

ensure that actions they fund, authorize, 

or carry out are not likely to destroy or 

adversely modify critical habitat. We are 

currently reviewing the regulatory 

definition of adverse modification in 

relation to the conservation of the 

species. 

Section 7(a) of the Act requires 

Federal agencies, including the Service, 

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 

proposed or 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 us on any action 

that is likely to jeopardize the continued 

existence of a proposed species or result 

in destruction or adverse modification 

of proposed critical habitat. Conference 

reports provide conservation 

recommendations to assist the agency in 

eliminating conflicts that may be caused 

by the proposed action. The 

conservation recommendations in a 

conference report are advisory. If a 

species is listed or critical habitat is 

designated, 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 such a 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 (action 

agency) must enter into consultation 

with us. Through this consultation, the 

action agency ensures that the permitted 

actions do not destroy or adversely 

modify critical habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

result in the destruction or adverse 

modification of critical habitat, we also 

provide reasonable and prudent 

alternatives to the project, if any are 

identifiable. ‘‘Reasonable and prudent 

alternatives’’ are defined at 50 CFR 

402.02 as alternative actions identified 

during consultation that can be 

implemented in a manner consistent 

with the intended purpose of the action, 

that are consistent with the scope of the 

Federal agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that the 

Director believes would avoid 

destruction or adverse modification of 

critical habitat. Reasonable and prudent 

alternatives can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable.

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where critical 

habitat is subsequently designated and 

the Federal agency has retained 

discretionary involvement or control 

over the action or such discretionary 

involvement or control is authorized by 

law. Consequently, some Federal 

agencies may request reinitiation of 

consultation or conference with us on 

actions for which formal consultation 

has been completed, if those actions 

may affect designated critical habitat or 

adversely modify or destroy proposed 

critical habitat. 

We may issue a formal conference 

report if requested by a Federal agency. 

Formal conference reports on proposed 

critical habitat contain an opinion that 

is prepared according to 50 CFR 402.14, 

as if critical habitat were designated. We 

may adopt the formal conference report 

as the biological opinion when the 

critical habitat is designated, if no 

substantial new information or changes 

in the action alter the content of the 

opinion (see 50 CFR 402.10(d)). 

Activities on Federal lands that may 

affect Astragalus lentiginosus var. 

coachellae or its critical habitat will 

require section 7 consultation. Activities 

on private or State lands requiring a 

permit from a Federal agency, such as 

a permit from the Army Corps under 

section 404 of the Clean Water Act, a 

section 10(a)(1)(B) permit from the 

Service, or some other Federal action, 

including funding (e.g., Federal 

Highway Administration or Federal 

Emergency Management Agency 

funding), will also continue to be 

subject to the section 7 consultation 

process. Federal actions not affecting 

listed species or critical habitat and 

actions on non-Federal and private 

lands that are not federally funded, 

authorized, or permitted do not require 

section 7 consultation. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe in any 

proposed or final regulation that 

designates critical habitat those 

activities involving a Federal action that 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

To properly portray the effects of 

critical habitat designation, we must 

first compare the section 7 requirements 

for actions that may affect critical 

habitat with the requirements for 

actions that may affect a listed species. 

Section 7 prohibits actions funded, 

authorized, or carried out by Federal 

agencies from jeopardizing the 

continued existence of a listed species 

or destroying or adversely modifying the 

listed species’ critical habitat. Actions 

likely to ‘‘jeopardize the continued 

existence’’ of a species are those that 

would appreciably reduce the 

likelihood of the species’ survival and 

recovery. Actions likely to ‘‘destroy or 

adversely modify’’ critical habitat are 

those that would appreciably reduce the 

value of critical habitat to the listed 

species. 

Common to both definitions is an 

appreciable detrimental effect on both 

survival and recovery of a listed species. 

Given the similarity of these definitions, 

actions likely to destroy or adversely 

modify critical habitat would often 

result in jeopardy to the species 

concerned when the area of the 

proposed action is occupied by the 

species concerned. 

Federal agencies already consult with 

us on activities in areas currently 

occupied by the species to ensure that 

their actions do not jeopardize the 

continued existence of the species. 

These actions include, but are not 

limited to: 

(1) Activities that result in sediment 

from being transported downstream in 

stream channels, such as sand and 

gravel pits in stream channels; 

(2) Activities that divert, dam, or 

affect water flow; 

(3) Activities that block wind 

transport of eolian sands, such as 

development, planting of tamarisk rows; 

74478 Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 

(4) Activities that foster invasion of 

exotic weeds (e. g., roads, landscaping, 

soil disturbance) and fragmentation of 

habitat.

All three critical habitat units are 

known to be occupied by Astragalus 

lentiginosus var. coachellae (Bureau of 

Land Management, unpublished data 

2001a). Federal agencies already consult 

with us on activities in areas currently 

occupied by the taxon or if the taxon 

may be affected by the action to ensure 

that their actions do not jeopardize the 

continued existence of the A. l. var. 

coachellae.

Exclusions Under Section 4(b)(2) of the 

Act 

Section 4(b)(2) of the Act states that 

critical habitat shall be designated, and 

revised, on the basis of the best 

available scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact of specifying any 

particular area as critical habitat. An 

area may be excluded from critical 

habitat if it is determined that the 

benefits of exclusion outweigh the 

benefits of specifying a particular area 

as critical habitat, unless the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. 

In our critical habitat designations, we 

use provisions outlined in section 

4(b)(2) of the Act to evaluate those 

specific areas that we are considering to 

propose as critical habitat as well as for 

those areas that are formally proposed 

for designation as critical habitat. Lands 

we have excluded pursuant to section 

4(b)(2) include those covered by the 

following types of plans if they provide 

assurances that the conservation 

measures they outline will be 

implemented and effective: (1) Legally 

operative HCPs that cover the species, 

(2) draft HCPs that cover the species and 

have undergone public review and 

comment (i.e., pending HCPs), (3) Tribal 

conservation plans that cover the 

species, (4) State conservation plans that 

cover the species, and (5) National 

Wildlife Refuge System Comprehensive 

Conservation Plans. A summary of the 

exclusions proposed in this rule follow 

in Table 3.

TABLE 3.—APPROXIMATE ESSENTIAL

HABITAT, EXCLUDED ESSENTIAL

HABITAT, AND PROPOSED CRITICAL

HABITAT (ACRES (AC); HECTARES

(HA)) FOR ASTRAGALUS

LENTIGINOSUS VAR. COACHELLAE IN

SAN BERNARDINO AND RIVERSIDE

COUNTIES, CALIFORNIA

Total essential habitat identified 

for Astragalus lentiginosus var. 

coachellae.

20,559 ac. 

(8,320 ha). 

Essential habitat excluded from 

the proposed critical habitat 

designation pursuant to section 4(b)(2) of the Act: Draft 

Coachella Valley Multiple Species Habitat Conservation Plan 

(MSHCP).

16,976 ac. 

(6,870 ha). 

Total essential habitat proposed 

as critical habitat.

3,583 ac. 

(1,450 ha). 

Relationship of Critical Habitat to 

Pending Habitat Conservation Plans and 

Exclusions Under 4(b)(2) 

Section 4(b)(2) of the Act requires us 

to consider other relevant impacts, in 

addition to economic impacts, when 

designating critical habitat. Section 

10(a)(1)(B) of the Act authorizes us to 

issue permits for the take of listed 

wildlife species incidental to otherwise 

lawful activities. Development of an 

HCP is a prerequisite for the issuance of 

an incidental take permit pursuant to 

section 10(a)(1)(B) of the Act. An 

incidental take permit application must 

be supported by an HCP that identifies 

conservation measures that the 

permittee agrees to implement for the 

species to minimize and mitigate the 

impacts of the permitted incidental take. 

HCPs vary in size and may provide for 

incidental take coverage and 

conservation management for one or 

many federally listed species. 

Additionally, more than one applicant 

may participate in the development and 

implementation of an HCP. Some areas 

occupied by Astragalus lentiginosus var. 

coachellae involve a very complex HCP 

that addresses multiple species, covers 

large areas, and is important to many 

participating permittees. Large regional 

HCPs expand upon the basic 

requirements set forth in section 

10(a)(1)(B) of the Act because they 

reflect a voluntary, cooperative 

approach to large-scale habitat and 

species conservation planning. Many of 

the large regional HCPs in southern 

California have been, or are being, 

developed to provide for the 

conservation of numerous federallylisted species and unlisted sensitive 

species and the habitat that provides for 

their biological needs. These HCPs are 

designed to proactively implement 

conservation actions to address future 

projects that are anticipated to occur 

within the planning area of the HCP. 

However, given the broad scope of these 

regional HCPs, not all projects 

envisioned to potentially occur may 

actually take place. 

In the case of an approved regional 

HCP and accompanying IA (e.g., those 

sponsored by cities, counties, or other 

local jurisdictions) that provide for 

incidental take coverage for Astragalus 

lentiginosus var. coachellae, a primary 

goal of these regional plans is to provide 

for the protection and management of 

habitat essential for the species’

conservation while directing 

development to other areas. The 

regional HCP development process 

provides an opportunity for more 

intensive data collection and analysis 

regarding particular habitat areas 

occupied by A. l. var. coachellae. The 

process also enables us to conduct 

detailed evaluations of the importance 

of such lands to the long-term survival 

of the species in the context of 

constructing a system of interlinked 

habitat blocks that provide for its 

biological needs.

In developing critical habitat 

designations, the Service has analyzed 

habitat conservation planning efforts to 

determine if the benefits of excluding 

them from critical habitat outweigh the 

benefits of including them in designated 

critical habitat. In reviewing HCPs, the 

Service has assessed the potential 

impacts of critical habitat designation 

on lands covered by HCPs on future 

partnerships, the status of HCP efforts 

and progress made in developing and 

implementing such plans, and their 

relationship to the conservation of 

species. In certain circumstances, the 

Service has determined that an HCP not 

yet completed may be considered for 

exclusion from critical habitat 

designation pursuant to section 4(b)(2) 

of the Act. For example, the Service 

determined that exclusion of the draft 

Western Riverside Multiple Species 

Habitat Conservation Plan (MSHCP) 

from critical habitat designation for 

vernal pool species was appropriate 

given the sustained progress and 

support for the plan of the participating 

jurisdictions (68 FR 46684, August 6, 

2003). 

Relationship of Critical Habitat to the 

Pending Coachella Valley Multiple 

Species Habitat Conservation Plan 

(MSHCP) 

The draft MSHCP has been in 

development from the mid-1990s to 

present, pursuant to an application to 

the Service for a Section 10(a)(1)(B) 

permit under the Act, under the 

Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 74479

auspices of the following entities: 

Coachella Valley Association of 

Governments (CVAG); the cities of 

Cathedral City, Coachella, Desert Hot 

Springs, Indian Wells, Indio, La Quinta, 

Palm Desert, Palm Springs, and Rancho 

Mirage; County of Riverside; U.S. Fish 

and Wildlife Service; California 

Department of Fish and Game; Bureau 

of Land Management; U.S. Forest 

Service; and the National Park Service, 

who signed a Memorandum of 

Understanding (Planning Agreement) to 

govern the preparation of the MSHCP. 

Subsequently, California Department of 

Transportation, Coachella Valley Water 

District, Imperial Irrigation District, 

Riverside County Flood Control and 

Water Conservation District, Riverside 

County Regional Parks and Open Space 

District, Riverside County Waste 

Management District, California 

Department of Parks and Recreation, 

and Coachella Valley Mountains 

Conservancy also decided to participate 

in preparation of the Plan. The parties 

later amended the Planning Agreement 

to also address the requirements of the 

Natural Community Conservation 

Planning (NCCP) Act and prepare a 

NCCP pursuant to California Fish and 

Game Code Section 2810. The MSHCP/

NCCP area encompasses approximately 

1.2 million ac (485,623 ha), of which 

69,000 ac (27,923 ha) is owned by an 

Indian Reservations and are not 

included in the MSHCP/NCCP, leaving 

a total of 1.1 million ac (445,154 ha) 

addressed by the MSHCP/NCCP in 

Riverside County. 

CVAG estimates there are 36,398 ac 

(14,730 ha) of habitat for Astragalus 

lentiginosus var. coachellae habitat in 

the MSHCP/NCCP area. The draft 

MSHCP/NCCP proposes to conserve 

19,321 ac (7,819 ha) of modeled A. l.

var. coachellae habitat as part of the 

preferred alternative reserve design that 

includes large areas of suitable habitat 

and other important conservation areas, 

such as sand sources and sand transport 

corridors. Core habitat areas include: 

Snow Creek/Windy Point Conservation 

Area; Whitewater Floodplain 

Conservation Area; Willow Hole 

Conservation Area; and Thousand 

Palms Conservation Area. Other goals of 

this draft MSHCP/NCCP include:

(1) Protecting other important 

conservation areas to allow for 

population fluctuation and promote 

genetic diversity;

(2) protecting essential ecological 

processes, such as sand transport 

systems, necessary to maintain core 

habitat and other conserved areas;

(3) maintaining biological corridors and 

linkages among all conserved 

populations to the maximum extent 

feasible; and (4) ensuring conservation 

of habitat quality through biological 

monitoring and adaptive management 

actions. 

The draft MSHCP/NCCP states that, 

although the percentage of modeled 

Astragalus lentiginosus var. coachellae

habitat that could be lost to 

development appears to be substantial, 

the actual reduction in habitat value is 

expected to be considerably less severe 

to the species than indicated by raw 

acreage numbers because: (1) Conserved 

habitat areas are large enough to 

maintain self-sustaining populations of 

A. l. var. coachellae and incorporate key 

habitat elements for the species; (2) 

potential adverse effects within 

conservation areas would not eliminate 

or significantly impact any core 

populations; (3) potential development 

would not adversely impact the 

essential ecological processes (e.g., sand 

source and transport system) needed to 

maintain currently viable habitat, and 

(4) lands in the MSHCP/NCCP reserve 

system would be managed and 

monitored (CVMC 2004).

CVAG has demonstrated a sustained 

commitment to develop the MSHCP to 

comply with section 10(a)(1)(B) of the 

Act, the California Endangered Species 

Act, and the State’s NCCP program. On 

November 5, 2004, the Service 

published a Notice of Availability of a 

Final Environmental Impact Statement/

Environmental Impact Report (EIS/EIR) 

for the MSHCP. 

Although not yet completed and 

implemented, CVAG has made 

significant progress in the development 

of its MSHCP to meet the requirements 

outlined in section 10(a)(1)(B) of the 

Act. In light of the Service’s confidence 

that CVAG will reach a successful 

conclusion to its MSHCP development 

process, we are excluding lands within 

their preferred alternative reserve design 

from proposed critical habitat 

designation for Astragalus lentiginosus

var. coachellae. 

(1) Benefits of Inclusion 

As stated previously, the benefits of 

designating critical habitat on lands 

within the boundaries of approved 

HCPs are normally small. Where HCPs 

are in place that include coverage for 

Astragalus lentiginosus var. coachellae, 

our experience has shown that the HCPs 

and their Implementing Agreements 

include management measures and 

protections designed to protect, restore, 

enhance, manage, and monitor habitat 

that benefit the long-term protection of 

the species. The principal benefit of 

designating critical habitat is that 

projects carried out, authorized, or 

funded by Federal agencies that may 

affect a listed species require the action 

agency to consult with the Service to 

ensure such activities do not destroy or 

adversely modify designated critical 

habitat. In the case of the CVAG, their 

MSHCP will be analyzed by the Service 

to determine the effects of the MSHCP 

on the species for which the 

participants are seeking incidental take 

permits. The MSHCP currently under 

review by the Service reflects revisions 

made to the plan based on comments 

and input from the Service and 

California Department of Fish and 

Game. 

(2) Benefits of Exclusion 

Excluding lands within CVAG’s 

MSHCP preferred alternative reserve 

design area from critical habitat 

designation will enhance our ability to 

work with them in the spirit of 

cooperation and partnership. A more 

detailed discussion concerning our 

rationale for excluding HCPs from 

critical habitat designation is outlined 

under the previous section. Further, the 

Service believes the analysis conducted 

to evaluate the benefits of excluding 

approved HCPs from critical habitat 

designation is applicable and 

appropriate to apply to CVAG’s MSHCP. 

(3) The Benefits of Exclusion Outweigh 

the Benefits of Inclusion 

In general, we find that the benefits of 

critical habitat designation on lands 

within pending HCPs that cover those 

species are small while the benefits of 

excluding such lands from designation 

of critical habitat are substantial. After 

weighing the small benefits of including 

lands within the MSHCP area against 

the much greater benefits derived from 

exclusion, we have excluded the 

preferred alternative reserve design in 

CVAG’s MSHCP from proposed critical 

habitat. Areas within the MSHCP 

planning area that are still included as 

proposed critical habitat are lands 

owned by public agencies that are not 

signatories to the MSHCP (i.e., U.S. 

Forest Service and Bureau of Land 

Management); however, these agencies 

are contributing to the MSHCP’s reserve 

design. We have requested public 

comments on the potential exclusion of 

Federal lands (e.g., Bureau of Land 

Management and the U.S. Forest 

Service) from critical habitat based on 

their participation in and contribution 

to the conservation of Astragalus 

lentiginosus var. coachellae under the 

proposed Coachella Valley Multiple 

Species Habitat Conservation Plan. 

74480 Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 

Unoccupied Areas Identified for 

Possible Inclusion 

The Act has different standards for 

designation of critical habitat in 

occupied and unoccupied habitat. For 

areas occupied by the species, these are: 

(i) The specific areas on which are 

found those physical or biological 

features essential to the conservation of 

the species and that may require special 

management considerations or 

protection. For areas not occupied, a 

determination is required that the entire 

area is essential for the conservation of 

the species before it can be included in 

critical habitat. Congress has also 

cautioned the Service to be 

‘‘exceedingly circumspect’’ in 

designating unoccupied habitat. 

This presents a highly unusual 

situation with respect to critical habitat 

for Astragalus lentiginosus var. 

coachellae, in that the species depends 

on sand being continually replenished 

from outside the areas it occupies, yet 

Congress has directed us to be 

exceedingly circumspect in including 

unoccupied areas in critical habitat 

designations. We are accordingly 

identifying areas which serve as a 

source for this sand and requesting 

comment on whether they should be 

included in the designation. Aspects of 

the situation upon which we seek 

comment include whether all, only a 

portion, or none of the areas identified 

below are needed to ensure sufficient 

sand supplies to maintain occupied 

habitat in its current condition, whether 

the draft CVAG MSHCP will provide for 

sand flow sufficient to maintain the 

species, and whether there are threats to 

the sand source areas that would be 

addressed by designating them as 

critical habitat. 

The identified areas are: 

Possible Addition to Unit 1

Unit 1 is dependent on the largest 

sand transport system where Astragalus 

lentiginosus var. coachellae exists. This 

large sand transport system contains 

several mountain drainages in the San 

Bernardino and San Jacinto mountains 

that are essential for providing sediment 

to several large populations of A. l. var. 

coachellae in the Snow Creek area and 

Whitewater River floodplain. Protecting 

the wide variety of physical and 

ecological features of this unit is 

important for ensuring the long-term 

persistence and recovery of A. l. var. 

coachellae. 

The Whitewater River System begins 

in the mountain drainages in eastern 

San Bernardino and northern San 

Jacinto Mountains, which includes the 

San Gorgonio River, Whitewater River, 

Snow Canyon, San Jacinto Canyons 1 

and 2, Stubbes Canyon, Cottonwood 

Canyon, and Garnet Wash (Griffiths et 

al. 2002). Major channels (>15.24 m (50 

ft) in width) within each of these 

drainage areas were determined as being 

important to the conservation of the 

species. The San Gorgonio and 

Whitewater River systems constitute the 

primary sediment sources within the 

Whitewater/San Gorgonio River 

depositional area, contributing a total of 

about 76% (Griffiths et al. 2002). Snow 

Canyon, San Jacinto Canyons 1 and 2, 

Stubbes Canyon, and Garnet Wash 

contribute a total of about 19% of the 

sediment within the Whitewater/San 

Gorgonio River system (Griffiths et al.

2002). We are seeking public comment 

on the importance of these and smaller 

drainages to overall sediment transport 

to the Coachella Valley. 

Possible Addition to Unit 2 

Unit 2 is dependent upon an 

important sand transport system which 

is largely intact and sandy habitats, 

including active and stabilized sand 

dunes and fields, and alluvial sand 

deposits in washes are generally not 

shielded or blocked by upstream 

development. The Mission Creek and 

Morongo Wash System begins in the 

mountain drainages in the eastern San 

Bernardino and Little San Bernardino 

Mountains, including Mission Creek, 

Dry Morongo, lower Little Morongo 

Creek, lower Big Morongo south of 

Morongo Valley, and Long Canyon 

(Griffiths et al. 2002). Major channels 

(>15.24 m (50 ft) in width) within each 

of these drainage areas, with the 

exception of Long Canyon, were 

delineated as being essential to the 

conservation of the species. The 

depositional area in Long Canyon has 

been significantly reduced due to 

development and was therefore not 

considered essential for sand transport. 

Mission Creek and Little Morongo Creek 

contribute a total of about 76% of the 

sediment within the Mission/Morongo 

depositional area (Griffiths et al. 2002). 

Big Morongo Creek contributes about 

11% of the sediment to the Mission/

Morongo depositional area (Griffiths et 

al. 2002). We are seeking public 

comment on the importance of this 

smaller drainage to overall sediment 

transport to the Coachella Valley. 

Possible Addition to Unit 3 

Unit 3 is dependent upon an 

important sand transport system which 

is largely intact and sandy habitats, 

including active and stabilized sand 

dunes and fields, and alluvial sand 

deposits in washes are generally not 

shielded or blocked by upstream 

development. The Coachella Valley 

Preserve System begins in the mountain 

drainages in the Indio Hills Indio Hills 

west of Thousand Palms Canyon. Major 

channels (> 15.24 m (50 ft) in width) 

within each of these drainage areas were 

delineated as being essential to the 

conservation of the species. We are 

seeking public comment on the 

importance of this smaller drainage to 

overall sediment transport to the 

Coachella Valley. 

Relationship of Unoccupied Areas 

Identified for Possible Inclusion to 

Morongo Indian Reservation 

Possible additions to Unit 1 include 

parts of the Morongo Indian Reservation 

located on stream and river channels in 

the San Gorgonio River basin containing 

unconsolidated sands that maintain 

downstream areas of suitable habitat 

that are occupied by Astragalus 

lentiginosus var. coachellae. Section 

4(b)(2) of the Act requires us to gather 

information regarding the designation of 

critical habitat and the effects thereof 

from all relevant sources, including 

Indian Pueblos and Tribes. In 

accordance with Secretarial Order 3206, 

‘‘American Indian Tribal Rights, 

Federal-Tribal Trust Responsibilities, 

and the Endangered Species Act’’ (June 

5, 1997); the President’s memorandum 

of April 29, 1994, ‘‘Government-toGovernment Relations with Native 

American Tribal Governments,’’ and 

Executive Order 13175, we recognize 

the need to consult with federallyrecognized Tribes on a government-togovernment basis when considering the 

designation of critical habitat in an area 

that may impact Tribal trust resources, 

tribally-owned fee lands, or the exercise 

of Tribal rights. Critical habitat shall not 

be designated in such areas unless it is 

determined essential to conserve a listed 

species. In designating critical habitat, 

we must evaluate and document the 

extent to which the conservation needs 

of the listed species can be achieved by 

limiting the designation to other lands. 

We are committed to working with the 

Morongo Band of Mission Indians on 

matters regarding critical habitat. 

Economic Analysis 

An analysis of the economic impacts 

of proposing critical habitat for this 

species is being prepared. We will 

announce the availability of the draft 

economic analysis in the Federal 

Register as soon as it is completed, at 

which time we will seek public review 

and comment. At that time, copies of 

the draft economic analysis will be 

available for downloading from the 

Internet at http://Carlsbad.fws.gov, or by 

contacting the Carlsbad Fish and 

Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 74481

Wildlife Office directly (see ADDRESSES

section). 

Peer Review

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), we will seek 

the expert opinions of at least three 

appropriate and independent specialists 

regarding this proposed rule. The 

purpose of such review is to ensure that 

our critical habitat designation is based 

on scientifically sound data, 

assumptions, and analyses. We will 

send these peer reviewers copies of this 

proposed rule immediately following 

publication in the Federal Register. We 

will invite these peer reviewers to 

comment, during the public comment 

period, on the specific assumptions and 

conclusions regarding the proposed 

designation of critical habitat. 

We will consider all comments and 

information received during the 

comment period on this proposed rule 

during preparation of a final 

rulemaking. Accordingly, the final 

decision may differ from this proposal. 

Public Hearings 

The Act provides for one or more 

public hearings on this proposal, if 

requested. Requests for public hearings 

must be made in writing at least 15 days 

prior to the close of the public comment 

period. We will schedule public 

hearings on this proposal, if any are 

requested, and announce the dates, 

times, and places of those hearings in 

the Federal Register and local 

newspapers at least 15 days prior to the 

first hearing. 

Clarity of the Rule 

Executive Order 12866 requires each 

agency to write regulations and notices 

that are easy to understand. We invite 

your comments on how to make this 

proposed rule easier to understand, 

including answers to questions such as 

the following: (1) Are the requirements 

in the proposed rule clearly stated? (2) 

Does the proposed rule contain 

technical jargon that interferes with the 

clarity? (3) Does the format of the 

proposed rule (grouping and order of 

the sections, use of headings, 

paragraphing, and so forth) aid or 

reduce its clarity? (4) Is the description 

of the notice in the SUPPLEMENTARY

INFORMATION section of the preamble 

helpful in understanding the proposed 

rule? (5) What else could we do to make 

this proposed rule easier to understand? 

Send a copy of any comments on how 

we could make this proposed rule 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 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule in that it may raise novel legal and 

policy issues, but it is not anticipated to 

have an annual effect on the economy 

of $100 million or more or affect the 

economy in a material way. Due to the 

tight timeline for publication in the 

Federal Register, the Office of 

Management and Budget (OMB) has not 

formally reviewed this rule. We are 

preparing a draft economic analysis of 

this proposed action, which will be 

available for public comment, to 

determine the economic consequences 

of designating the specific area as 

critical habitat. This economic analysis 

also will be used to determine 

compliance with Executive Order 

12866, Regulatory Flexibility Act, Small 

Business Regulatory Enforcement 

Fairness Act, and Executive Order 

12630. 

Within these areas, the types of 

Federal actions or authorized activities 

that we have identified as potential 

concerns are listed above in the section 

on Section 7 Consultation. The 

availability of the draft economic 

analysis will be announced in the 

Federal Register and in local 

newspapers so that it is available for 

public review and comments. The draft 

economic analysis can be obtained from 

the Internet at http://Carlsbad.fws.gov, 

or by contacting the Carlsbad Fish and 

Wildlife Office directly (see ADDRESSES

section). 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.)

Our assessment of economic effect 

will be completed prior to final 

rulemaking based upon review of the 

draft economic analysis prepared 

pursuant to section 4(b)(2) of the ESA 

and E.O. 12866. This analysis is for the 

purposes of compliance with the 

Regulatory Flexibility Act and does not 

reflect our position on the type of 

economic analysis required by New 

Mexico Cattle Growers Assn. v. U.S. 

Fish & Wildlife Service 248 F.3d 1277 

(10th Cir. 2001). 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the 

Regulatory Flexibility Act (RFA) to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

At this time, the Service lacks the 

available economic information 

necessary to provide an adequate factual 

basis for the required RFA finding. 

Therefore, the RFA finding is deferred 

until completion of the draft economic 

analysis prepared pursuant to section 

4(b)(2) of the ESA and E.O. 12866. This 

draft economic analysis will provide the 

required factual basis for the RFA 

finding. Upon completion of the draft 

economic analysis, the Service will 

publish a notice of availability of the 

draft economic analysis of the proposed 

designation and reopen the public 

comment period for the proposed 

designation for an additional 60 days. 

The Service will include with the notice 

of availability, as appropriate, an initial 

regulatory flexibility analysis or a 

certification that the rule will not have 

a significant economic impact on a 

substantial number of small entities 

accompanied by the factual basis for 

that determination. The Service has 

concluded that deferring the RFA 

finding until completion of the draft 

economic analysis is necessary to meet 

the purposes and requirements of the 

RFA. Deferring the RFA finding in this 

manner will ensure that the Service 

makes a sufficiently informed 

determination based on adequate 

economic information and provides the 

necessary opportunity for public 

comment. 

Executive Order 13211 

On May 18, 2001, the President issued 

an Executive Order (E.O. 13211) on 

regulations that significantly affect 

energy supply, distribution, and use. 

Executive Order 13211 requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. This 

proposed rule to designate critical 

habitat for Astragalus lentiginosus var. 

coachellae is not a significant regulatory 

action under Executive Order 12866, 

and it is not expected to significantly 

affect energy supplies, distribution, or 

use. Therefore, this action is not a 

74482 Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 

significant energy action and no 

Statement of Energy Effects is required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501), 

the Service makes the following 

findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute or regulation that would impose 

an enforceable duty upon State, local, 

tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’

with two exceptions. It excludes ‘‘a 

condition of federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. (At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement.) ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance; or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities who receive Federal 

funding, assistance, permits or 

otherwise require approval or 

authorization from a Federal agency for 

an action may be indirectly impacted by 

the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply; nor would critical habitat 

shift the costs of the large entitlement 

programs listed above on to State 

governments.

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments. The term ‘‘small 

governmental jurisdiction’’ means 

governments of cities, counties, town, 

townships, villages, school districts, or 

special districts with a population of 

less than 50,000 (U.S.C. title 5, part I, 

chapter 6, section 601[5]). The lands 

being proposed for designation as 

critical habitat for Astragalus 

lentiginosus var. coachellae are owned 

by Federal, State, and local government 

entities. None of these government 

entities fit the definition of ‘‘small 

governmental jurisdiction.’’ As such, 

Small Government Agency Plan is not 

required. We will, however, further 

evaluate this issue as we conduct our 

economic analysis and revise this 

assessment if appropriate. 

Takings 

In accordance with Executive Order 

12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have analyzed the potential takings 

implications of designating 31,270 ac 

(12,656 ha) of lands in Riverside and 

San Bernardino Counties, California, as 

critical habitat for Astragalus 

lentiginosus var. coachellae in a takings 

implication assessment. The takings 

implications assessment concludes that 

this proposed designation of critical 

habitat for Astragalus lentiginosus var. 

coachellae does not pose significant 

takings implications. However, we have 

not yet completed the economic 

analysis for this proposed rule. Once the 

economic analysis is available, we will 

review and revise this preliminary 

assessment as warranted. 

Federalism 

In accordance with Executive Order 

13132, the rule does not have significant 

Federalism effects. A Federalism 

assessment is not required. In keeping 

with DOI and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

proposed critical habitat designation 

with appropriate State resource agencies 

in California. The designation of critical 

habitat in areas currently occupied by 

Astragalus lentiginosus var. coachellae

imposes no additional restrictions to 

those currently in place and, therefore, 

has little incremental impact on State 

and local governments and their 

activities. The designation may have 

some benefit to these governments in 

that the areas essential to the 

conservation of the species are more 

clearly defined, and the primary 

constituent elements of the habitat 

necessary to the survival of the species 

are specifically identified. While 

making this definition and 

identification does not alter where and 

what federally sponsored activities may 

occur, it may assist these local 

governments in long-range planning 

(rather than waiting for case-by-case 

section 7 consultations to occur). 

Civil Justice Reform 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that the rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. We have 

proposed designating critical habitat in 

accordance with the provisions of the 

Act. This proposed rule uses standard 

property descriptions and identifies the 

primary constituent elements within the 

designated areas to assist the public in 

understanding the habitat needs of 

Astragalus lentiginosus var. coachellae. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act. This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

It is our position that, outside the 

Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by the NEPA in connection with 

designating critical habitat under the 

Endangered Species Act of 1973, as 

amended. We published a notice 

outlining our reasons for this 

determination in the Federal Register

on October 25, 1983 (48 FR 49244). This 

assertion was upheld in the courts of the 

Ninth Circuit (Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. Ore. 

1995), cert. denied 116 S. Ct. 698 (1996). 

Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 74483

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of the 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. No 

Indian Reservation lands are essential 

for the conservation of Astragalus 

lentiginosus var. coachellae, however, 

there are unoccupied areas identified for 

possible inclusion on the Morongo 

Indian Reservation that support 

important stream channels providing 

unconsolidated sands that maintain 

suitable habitat for this taxon. Activities 

conducted or planned on those lands 

may adversely affect the conservation of 

the A. l. var. coachellae. Therefore, we 

are committed to working on 

partnerships with the Morongo Tribe on 

matters regarding critical habitat. 

Information relative to Tribal lands is 

included in the critical habitat unit 

descriptions and under Relationship of 

Unoccupied Areas Identified for 

Possible Inclusion to Morongo Indian 

Reservation.

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Carlsbad Fish and Wildlife Office (see

ADDRESSES section). 

Author(s) 

The primary authors of this package 

are the Carlsbad Fish and Wildlife 

Office staff.

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation.

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

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. In § 17.12(h), revise the entry in the 

table for Astragalus lentiginosus var. 

coachellae under ‘‘FLOWERING 

PLANTS,’’ to read as follows:

§ 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

Species 

Historic range Family Status When

listed 

Critical 

habitat 

Special 

rules Scientific name Common name 

FLOWERING PLANTS

* * * * * * * 

Astragalus lentiginosus

var. coachellae.

Coachella Valley milkvetch.U.S.A. (CA) ................ Fabaceae ................... E 647 17.96(a) NA 

* * * * * * * 

3. Amend § 17.96(a), by adding 

critical habitat for ‘‘Astragalus 

lentiginosus var. coachellae’’ under 

‘‘FLOWERING PLANTS’’ in the same 

alphabetical order as the species occurs 

in § 17.12(h) to read as follows:

§ 17.96 Critical habitat—plants. 

(a) Flowering plants.

* * * * *

Family Fabaceae: Astragalus 

lentiginosus var. coachellae (Coachella 

Valley milk-vetch) 

(1) Critical habitat units are depicted 

for Riverside and San Bernardino 

counties, California, on the maps below. 

(2) The primary constituent elements 

of critical habitat for this species are the 

habitat components that provide: 

(i) Unconsolidated sands stored 

within rivers and tributaries in the San 

Bernardino, Little San Bernardino, and 

San Jacinto Mountains and Indio Hills. 

The unconsolidated sands stored in 

these rivers and tributaries are not 

occupied by A. l. var. coachellae, but 

represent the original source of the loose 

sand that form the sand dunes and flats 

that are occupied by this plant. 

(ii) Unconsolidated sands deposited 

on the alluvial fans of the San 

Bernardino, Little San Bernardino, and 

San Jacinto Mountains and Indio Hills. 

The unconsolidated sands deposited on 

these alluvial fans are not occupied by 

A. l. var. coachellae; instead, these 

sands are transported by wind and 

water to form the fluvial and eolian 

sand dunes and flats that are occupied 

by this plant; 

(iii) Suitable flooding regimes to 

transport unconsolidated sands from 

rivers and tributaries to the alluvial fans 

of the San Bernardino, Little San 

Bernardino, and San Jacinto Mountains 

and Indio Hills; 

(iv) Suitable wind and flooding 

regimes to transport unconsolidated 

sands deposited on the alluvial fans of 

the San Bernardino, Little San 

Bernardino, and San Jacinto Mountains 

and Indio Hills to the fluvial and eolian 

depositional areas, including areas west 

of Edom Hill/Willow Hole reserve, areas 

west of Coachella Valley Preserve, and 

the Whitewater Floodplain area that are 

occupied by A. l. var. coachellae.

(v) Eolian sands on active, stabilized, 

and shielded sand dunes or fields, and 

sandy alluvial sites in washes within 

the San Gorgonio/Whitewater River 

eolian sand transport system, Mission 

Creek/Morongo Wash eolian sand 

transport system, and the Thousand 

Palms eolian sand transport system that 

are occupied by A. l. var. coachellae.

(3) Critical habitat does not include 

man-made structures existing on the 

effective date of this rule and not 

containing one or more of the primary 

constituent elements, such as buildings, 

aqueducts, airports, and roads, and the 

land on which such structures are 

located. 

(4) The index maps of Astragalus 

lentiginosus var. coachellae proposed 

critical habitat (Map 1) follows: 

BILLING CODE 4310–55–P

74484 Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 


EP14DE04.145</GPH>
Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 74485

(5) Unit 1: Whitewater River Unit, 

Riverside and San Bernardino Counties, 

California. 

(i) Map Unit 1: Whitewater River, 

Riverside County, California. From 

USGS 1:24,000 quadrangle maps 

Whitewater, Desert Hot Springs, Palm 

Springs and Cathedral City, California, 

lands bounded by the following UTM 

NAD27 coordinates (E, N): 526500, 

3753000; 526900, 3753000; 526900, 

3752700; 526800, 3752700; 526800, 

3752600; 525900, 3752600; 525900, 

3752900; 526500, 3752900; returning to 

526500, 3753000; land bounded by 

527000, 3753000; 527700, 3753000; 

527700, 3752600; 527400, 3752600; 

527400, 3752700; 527200, 3752700; 

527200, 3752800; 527000, 3752800; 

returning to 527000, 3753000; land 

bounded by 533600, 3753000; 533700, 

3753000; 533700, 3752900; 533800, 

3752900; 533800, 3751800; 533900, 

3751800; 533900, 3751700; 534000, 

3751700; 534000, 3751600; 534100, 

3751600; 534100, 3751400; 534300, 

3751400; 534300, 3751300; 534400, 

3751300; 534400, 3751200; 534500, 

3751200; 534500, 3751100; 534700, 

3751100; 534700, 3751000; 535100, 

3751000; 535100, 3751100; 535700, 

3751100; 535700, 3750400; 535400, 

3750400; 535400, 3750500; 535300, 

3750500; 535300, 3750600; 535200, 

3750600; 535200, 3750800; 534500, 

3750800; 534500, 3750700; 534400, 

3750700; 534400, 3750500; 534100, 

3750500; 534100, 3750400; 533400, 

3750400; 533400, 3750300; 533500, 

3750300; 533500, 3750000; 533600, 

3750000; 533600, 3749900; 533500, 

3749900; 533500, 3749800; 533400, 

3749800; 533400, 3749900; 533300, 

3749900; 533300, 3749800; 533100, 

3749800; 533100, 3749900; 533000, 

3749900; 533000, 3750000; 532900, 

3750000; 532900, 3750200; 532800, 

3750200; 532800, 3750400; 532400, 

3750400; 532400, 3751400; 533000, 

3751400; 533000, 3751300; 533200, 

3751300; 533200, 3751200; 533400, 

3751200; 533400, 3751400; 533600, 

3751400; returning to 533600, 3753000; 

land bounded by 525900, 3752300; 

526200, 3752300; 526200, 3752200; 

526400, 3752200; 526400, 3752000; 

526200, 3752000; 526200, 3752100; 

526100, 3752100; 526100, 3752200; 

525900, 3752200; returning to 525900, 

3752300; land bounded by 530600, 

3751400; 530900, 3751400; 530900, 

3750900; 530700, 3750900; 530700, 

3750700; 530500, 3750700; 530500, 

3750600; 530400, 3750600; 530400, 

3750500; 530300, 3750500; 530300, 

3750600; 530000, 3750600; 530000, 

3750500; 529900, 3750500; 529900, 

3750400; 529400, 3750400; 529400, 

3750500; 529200, 3750500; 529200, 

3751000; 530400, 3751000; 530400, 

3750900; 530600, 3750900; returning to 

530600, 3751400; land bounded by 

537200, 3751000; 538400, 3751000; 

538400, 3750900; 539000, 3750900; 

539000, 3750700; 538200, 3750700; 

538200, 3750600; 537200, 3750600; 

returning to 537200, 3751000; land 

bounded by 540500, 3750900; 541200, 

3750900; 541200, 3750800; 541400, 

3750800; 541400, 3750900; 541500, 

3750900; 541500, 3750800; 541600, 

3750800; 541600, 3750700; 541800, 

3750700; 541800, 3750500; 542200, 

3750500; 542200, 3749600; 540600, 

3749600; 540600, 3748200; 541000, 

3748200; 541000, 3748100; 542200, 

3748100; 542200, 3747600; 540800, 

3747600; 540800, 3747500; 540500, 

3747500; 540500, 3748100; 539000, 

3748100; 539000, 3747900; 538800, 

3747900; 538800, 3748000; 538700, 

3748000; 538700, 3748100; 538600, 

3748100; 538600, 3748200; 538900, 

3748200; 538900, 3749500; 539000, 

3749500; 539000, 3749800; 540100, 

3749800; 540100, 3749700; 540500, 

3749700; returning to 540500, 3750900; 

land bounded by 530800, 3750800; 

530900, 3750800; 530900, 3750700; 

530800, 3750700; 530800, 3750800; 

land bounded by 536500, 3749800; 

537000, 3749800; 537000, 3749700; 

537200, 3749700; 537200, 3749600; 

537300, 3749600; 537300, 3749500; 

537400, 3749500; 537400, 3749200; 

537200, 3749200; 537200, 3749300; 

537000, 3749300; 537000, 3749400; 

536900, 3749400; 536900, 3749500; 

536700, 3749500; 536700, 3749600; 

536600, 3749600; 536600, 3749700; 

536500, 3749700; returning to 536500, 

3749800; land bounded by 545300, 

3748500; 545500, 3748500; 545500, 

3748400; 545600, 3748400; 545600, 

3748300; 545700, 3748300; 545700, 

3748200; 545800, 3748200; 545800, 

3748000; 545300, 3748000; returning to 

545300, 3748500; and land bounded by 

547100, 3747100; 547400, 3747100; 

547400, 3747000; 547600, 3747000; 

547600, 3746900; 547700, 3746900; 

547700, 3746800; 547900, 3746800; 

547900, 3746700; 548000, 3746700; 

548000, 3746600; 548200, 3746600; 

548200, 3746400; 547700, 3746400; 

547700, 3746600; 547500, 3746600; 

547500, 3746800; 547100, 3746800; 

returning to 547100, 3747100. 

(ii) Note: Unit 1 (Map 2) follows:

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(6) Unit 2: Mission Creek and 

Morongo Wash Unit, Riverside and San 

Bernardino Counties, California. 

(i) Map Unit 2: Mission Creek and 

Morongo Wash, Riverside County, 

California. From USGS 1:24,000 

quadrangle maps Seven Palms Valley 

and Cathedral City, California, lands 

bounded by the following UTM NAD27 

coordinates (E, N): 546500, 3749800; 

547000, 3749800; 547000, 3749300; 

546500, 3749300; returning to 546500, 

3749800; and land bounded by 548900, 

3749800; 549700, 3749800; 549700, 

3749600; 549600, 3749600; 549600, 

3749500; 549500, 3749500; 549500, 

3748800; 549600, 3748800; 549600, 

3748600; 549700, 3748600; 549700, 

3748400; 549800, 3748400; 549800, 

3748300; 549900, 3748300; 549900, 

3748200; 550000, 3748200; 550000, 

3748100; 549700, 3748100; 549700, 

3748300; 549600, 3748300; 549600, 

3748100; 549400, 3748100; 549400, 

3748400; 549500, 3748400; 549500, 

3748500; 549300, 3748500; 549300, 

3748800; 549400, 3748800; 549400, 

3748900; 548900, 3748900; returning to 

548900, 3749800; land bounded by 

548500, 3748600; 548800, 3748600; 

548800, 3748300; 548500, 3748300; 

returning to 548500, 3748600; land 

bounded by 548900, 3748600; 549100, 

3748600; 549100, 3748300; 548900, 

3748300; returning to 548900, 3748600; 

land bounded by 545300, 3748500; 

545500, 3748500; 545500, 3748400; 

545600, 3748400; 545600, 3748300; 

545700, 3748300; 545700, 3748200; 

545800, 3748200; 545800, 3748000; 

545300, 3748000; returning to 545300, 

3748500; land bounded by 550100, 

3747800; 550300, 3747800; 550300, 

3747100; 550100, 3747100; returning to 

550100, 3747800; and land bounded by 

548100, 3748200; 548600, 3748200; 

548600, 3747200; 547500, 3747200; 

547500, 3747300; 547400, 3747300; 

547400, 3747400; 547300, 3747400; 

547300, 3747500; 547100, 3747500; 

547100, 3747600; 547000, 3747600; 

547000, 3747700; 546900, 3747700; 

546900, 3747900; 547300, 3747900; 

547300, 3747700; 547500, 3747700; 

547500, 3747500; 547800, 3747500; 

547800, 3747600; 547700, 3747600; 

547700, 3748100; 548100, 3748100; 

returning to 548100, 3748200; excluding 

land bounded by 548000, 3747600; 

548000, 3747400; 547800, 3747400; 

547800, 3747300; 548100, 3747300; 

548100, 3747600; 548000, 3747600. 

(ii) Note: Unit 2 (Map 3) follows:

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(7) Unit 3: Thousand Palms Unit, 

Riverside County, California. 

(i) Map Unit 3: Thousand Palms, 

Riverside County, California. From 

USGS 1:24,000 quadrangle map Myoma, 

California, lands bounded by the 

following UTM NAD27 coordinates (E, 

N): 563600, 3741700; 564000, 3741700; 

564000, 3741400; 563900, 3741400; 

563900, 3741500; 563700, 3741500; 

563700, 3741600; 563600, 3741600; 

returning to 563600, 3741700; and land 

bounded by 562300, 3741500; 562800, 

3741500; 562800, 3741200; 562300, 

3741200; returning to 562300, 3741500. 

(ii) Note: Unit 3 (Map 4) follows:

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* * * * * Dated: November 30, 2004. 

Craig Manson, 

Assistant Secretary for Fish and Wildlife and 

Parks.

[FR Doc. 04–26690 Filed 12–13–04; 8:45 am] 

BILLING CODE 4310–55–C