[Federal Register Volume 66, Number 98 (Monday, May 21, 2001)]
[Rules and Regulations]
[Pages 27901-27908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12663]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF61


Endangered and Threatened Wildlife and Plants; Final Rule for 
Endangered Status for Astragalus pycnostachyus var. lanosissimus 
(Ventura marsh milk-vetch)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
endangered status for Astragalus pycnostachyus var. lanosissimus 
(Ventura marsh milk-vetch) pursuant to the Endangered Species Act (Act) 
of 1973, as amended. Historically known from a three-county region in 
coastal southern California, A. pycnostachyus var. lanosissimus was 
believed extinct until its rediscovery in 1997. The only known extant 
population of this recently rediscovered plant occurs in Ventura 
County, California, on less than 1 acre of degraded dune habitat that 
was previously used for disposal of petroleum wastes. The most 
significant current threats to A. pycnostachyus var. lanosissimus are 
direct destruction of this population from proposed soil remediation, 
residential development, and associated activities. This taxon is also 
threatened by unanticipated human-caused and natural events that could 
eliminate the single remaining population. Competition from nonnative 
invasive plant species is an additional threat. This action will extend 
the Act's protection to this plant.

EFFECTIVE DATE: This rule is effective June 20, 2001.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the Ventura Fish and 
Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, 
Suite B, Ventura, California 93003.

FOR FURTHER INFORMATION CONTACT: Rick Farris or Lois Grunwald, Ventura 
Fish and Wildlife Office, at the address above (telephone 805/644-1766; 
facsimile 805/644-3958).

SUPPLEMENTARY INFORMATION:

Background

    Astragalus pycnostachyus var. lanosissimus (Ventura marsh milk-
vetch) was first described by Per Axel Rydberg (1929) as Phaca 
lanosissima from an 1882 collection by S.B. and W.F. Parish made from 
``La Bolsa,'' probably in what is now Orange County, California. The 
combination A. pycnostachyus var. lanosissimus was assigned to this 
taxon by Philip Munz and Jean McBurney in 1932 (Munz 1932).
    Astragalus pycnostachyus var. lanosissimus is a herbaceous 
perennial in the pea family (Fabaceae). It has a thick taproot and 
multiple erect, reddish stems, 40 to 90 centimeters (cm) (16 to 36 
inches (in)) tall, that emerge from the root crown. The pinnately 
compound leaves are densely covered with silvery white hairs. The 27-39 
leaflets are 5 to 20 millimeters (mm) (0.2 to 0.8 in) long. The 
numerous greenish-white to cream colored flowers are in dense clusters 
and are 7 to 10 mm (0.3 to 0.4 in) long. The calyx teeth are 1.2 to 1.5 
mm (0.04 in) long. The nearly sessile, single-celled pod is 8 to 11 mm 
(0.31 to 0.43 in) long (Barneby 1964). The blooming time has been 
recorded as July to October (Barneby 1964); however, the one extant 
population was observed in flower in June 1997. This variety is 
distinguished from A. pycnostachyus var. pycnostachyus by the length of 
calyx tube, calyx teeth, and peduncles. It is distinguished from other 
local Astragalus species by its size, perennial habit, size and shape 
of fruit, and flowering time.
    The type locality is ``La Bolsa,'' where the plant was collected in 
1882 by S.B. and W.F. Parish (Barneby 1964). Based on the labeling of 
other specimens collected by the Parishes in 1881 and 1882, Barneby 
(1964) suggested that this collection may have come from the Ballona 
marshes in Los Angeles County. However, Critchfield (1978) believed 
that ``La Bolsa'' could easily have referred to Bolsa Chica, a coastal 
marsh system located to the south in what is now Orange County. He 
noted that Orange County was not made a separate county from Los 
Angeles until 1889, 7 years after the Parish's collection was made. In 
the five decades following its discovery, Astragalus pycnostachyus var. 
lanosissimus was collected from about four locations in Los Angeles and 
Ventura counties, three of which are near one another. In Los Angeles 
County it was collected from near Santa Monica in 1882, the Ballona 
marshes just to the south in 1902, and ``Cienega'' in 1904, also likely 
near the Ballona wetlands. In

[[Page 27902]]

Ventura County it was collected in 1901 and 1925 from Oxnard and in 
1911 from Ventura, a city adjacent to Oxnard. By 1964, Barneby (1964) 
believed that it had certainly been extirpated from Santa Monica 
southward, noting that there was still the possibility it survived in 
Ventura County (although he knew of no locations at that time). The 
species was briefly rediscovered in 1967 by R. Chase, who collected a 
single specimen growing by a roadside between the cities of Ventura and 
Oxnard. Subsequent searches uncovered no other living plants at that 
location, although some mowed remains discovered on McGrath State Beach 
lands, across the road from the collection site, were believed to 
belong to this taxon (information on herbarium label from specimen 
collected by R.M. Chase, 1967). Floristic surveys and focused searches 
conducted in the 1970s and 1980s at historic locations failed to locate 
any A. pycnostachyus var. lanosissimus, and the plant was presumed 
extinct (Isley 1986; Spellenberg 1993; Skinner and Pavlik 1994) until 
June 12, 1997, when a population of the plant was rediscovered by U.S. 
Fish and Wildlife Service (Service) biologist Kate Symonds, in a 
degraded coastal dune system near Oxnard, California.
    Almost nothing is known of the habitat requirements of Astragalus 
pycnostachyus var. lanosissimus. All but two of the known collections 
of this taxon were made prior to 1930. Specimen labels from these 
collections and original published descriptions contain virtually no 
habitat information. The related variety, Astragalus pycnostachyus var. 
pycnostachyus, is found in or at the high edge of coastal saltmarshes 
and seeps. The newly discovered population of A. pycnostachyus var. 
lanosissimus occurs in a sparsely vegetated low area, at an elevation 
of about 10 meters (30 feet), in a site previously used for disposal of 
petroleum waste products (Impact Sciences, Inc. 1997). Dominant shrub 
species at the site are Baccharis pilularis (coyote brush), Baccharis 
salicifolia (mule fat), Salix lasiolepis (arroyo willow), and the 
nonnative Myoporum laetum (myoporum) (Impact Sciences, Inc. 1997). The 
population itself occurs with sparse vegetative cover provided 
primarily by Baccharis pilularis, Baccharis salicifolia, a nonnative 
Carpobrotus sp. (seafig), and a nonnative annual grass, Bromus 
madritensis ssp. rubens (red brome). Soils are reported to be loam-silt 
loams (Impact Sciences, Inc. 1997). Soils were likely transported from 
other locations as a cap for the disposal site once it was closed. The 
Service is not aware of records on the origin of the soil used to cap 
the waste disposal site; however, because of the costs of transport, 
the soil source is likely of local origin.
    The population of Astragalus pycnostachyus var. lanosissimus 
consisted of about 374 plants total in 1997, of which 260 were small 
plants, thought to have germinated in the last year. Fewer than 65 
plants in the population produced fruit in 1997 (Impact Sciences, Inc. 
1997). The plants are growing in an area of less than 1 acre, with one 
outlying plant located 10 to 20 meters (30-60 feet) from the main group 
in 1997 (D. Steeck, Service, pers. obs. 1997). In 1998, surveys 
revealed 192 plants. In 1999, Service efforts went into placing 
hardware cloth cages around a sample of plants. This experimental 
caging was initiated due to severe herbivory, apparently by small 
mammals. An estimate of between 30 and 40 plants produced flowers in 
1999, believed to be fewer than half of those blooming in 1998 (D. 
Steeck in litt. 1999).
    The land on which the only known population of Astragalus 
pycnostachyus var. lanosissimus grows is privately owned and a project 
to decontaminate the soils and construct a housing development on the 
site has been proposed (Impact Sciences, Inc. 1998). Limited efforts to 
assist with the conservation of the species have been initiated by the 
project proponent, the Service, the State, and other cooperators. The 
project proponent has successfully grown plants in a remote greenhouse 
facility. Several plants were excavated from the natural population and 
potted, and several plants were started from seed gathered from the 
natural population. In addition, we cooperated with the California 
Department of Fish and Game in making conservation seed collections 
from the site. This seed was divided into a seed storage collection and 
a seed bulking project at the Rancho Santa Ana Botanic Gardens.

Previous Federal Action

    Federal actions on this taxon began as a result of section 12 of 
the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) 
(Act), which directed the Secretary of the Smithsonian Institution to 
prepare a report on those plants considered to be endangered, 
threatened, or extinct in the United States. This report (House 
Document No. 94-51) was presented to Congress on January 9, 1975, and 
Astragalus pycnostachyus var. lanosissimus was included on List C, 
among those taxa believed possibly extinct in the wild. The Service 
published a notice in the July 1, 1975, Federal Register (40 FR 27823) 
of its acceptance of the report as a petition within the context of 
section 4(c)(2) (petition provisions are now found in section 4(b)(3)) 
of the Act and its intention to review the status of the plant taxa 
named therein.
    On June 16, 1976, the Service published a proposed rule in the 
Federal Register (41 FR 24523) to determine approximately 1,700 
vascular plant species to be endangered species pursuant to section 4 
of the Act. This list, which included Astragalus pycnostachyus var. 
lanosissimus, was assembled on the basis of comments and data received 
by the Smithsonian Institution and the Service in response to House 
Document No. 94-51 and the July 1, 1975, Federal Register publication. 
General comments received in relation to the 1976 proposal were 
summarized in an April 26, 1978, Federal Register publication (43 FR 
17909). In 1978, amendments to the Endangered Species Act required that 
all proposals more than 2 years old be withdrawn. A 1-year grace period 
was given to those proposals already more than 2 years old. In a 
December 10, 1979, notice (44 FR 70796), the Service withdrew the 
portion of the June 16, 1976, proposal that had not been made final, 
along with four other proposals that had expired. A. pycnostachyus var. 
lanosissimus was included in that withdrawal notice.
    We published an updated candidate notice of review for plants on 
December 15, 1980 (45 FR 82480). This notice included Astragalus 
pycnostachyus var. lanosissimus in a list of category 1 candidate 
species that were possibly extinct in the wild. These category 1 
candidates would have been given high priority for listing if extant 
populations were confirmed.
    The Service maintained Astragalus pycnostachyus var. lanosissimus 
as a category 1 candidate in subsequent notices published on November 
28, 1983 (48 FR 53640), September 27, 1985 (50 FR 39526), and February 
21, 1990 (55 FR 6184). The Service published a notice (58 FR 51144) on 
September 30, 1993, in which taxa whose existence in the wild was in 
doubt, including A. pycnostachyus var. lanosissimus, were moved to 
Category 2. On February 28, 1996, we published a Notice of Review in 
the Federal Register (61 FR 7596) that discontinued the designation of 
category 2 species as candidates, including those taxa thought to be 
extinct. Thus, A. pycnostachyus var. lanosissimus was excluded from 
this and subsequent notices of review. In

[[Page 27903]]

1997, A. pycnostachyus var. lanosissimus was rediscovered and a review 
of the taxon's status indicated that a proposed rule was warranted.
    We published a proposed rule to list Astragalus pycnostachyus var. 
lanosissimus as endangered in the Federal Register on May 25, 1999 (64 
FR 28136). We have updated this rule to reflect any changes in 
information concerning distribution, status, and threats since the 
publication of the proposed rule.

Summary of Comments and Recommendations

    In the May 25, 1999, proposed rule (64 FR 28136), we requested 
interested parties to submit factual reports or information that might 
contribute to development of a final rule. We contacted appropriate 
Federal agencies, State agencies, county and city governments, 
scientific organizations, and other interested parties and requested 
information and comments. We published a newspaper notice inviting 
public comment in the Los Angeles Times on June 3, 1999.
    During the comment period we received comments from 4 individuals, 
agencies, or group representatives concerning the proposed rule. Two 
commenters supported the proposal, one was neutral, and one was opposed 
to the proposal. Comments provided additional information that, along 
with other clarifications, has been incorporated into the 
``Background'' or ``Summary of Factors'' sections of this final rule. 
Opposing comments and our responses are summarized as follows:
    Comment 1: The proposed rule failed to meet any listing criteria as 
defined by the Act.
    Response 1: We disagree. The arguments presented in the Summary of 
Factors Affecting the Species section of the rule have been supported 
by the peer review process as well as our internal legal and biological 
reviews for compliance with the Act.
    Comment 2: The proposed rule utilized outdated and incomplete data, 
and failed to include information about the horticultural experiments 
conducted in central California.
    Response 2: The data used in determining the status of Astragalus 
pycnostachyus var. lanosissimus was current and complete at the time 
the proposed rule was written. Experimental horticultural activities 
involving the removal of some plants and seeds from the natural 
population and their propagation in a greenhouse facility have been 
initiated, and we believe that such activities may prove to be useful 
in conserving the plant species. However, these initial experiments 
have shown limited success, and the ability to maintain populations 
necessary for the recovery of A. pycnostachyus var. lanosissimus has 
not been demonstrated.
    Comment 3: There are no additional benefits for the species by 
listing it.
    Response 3: Federal listing will provide additional protection for 
the species through Federal regulations and recovery efforts. 
Additional protection will potentially be provided through the 
consultation process for projects which may affect the species that are 
funded, permitted, or carried out by a Federal agency as required by 
section 7 of the Act. In addition, Federal listing of a species 
generally provides for recognition and additional funding, by our 
agency as well as others, for the conservation and recovery of the 
species. Although our recovery planning process typically occurs after 
the species has been federally listed, the State listing of this 
species has served to advance the process of identifying appropriate 
recovery actions. We currently do not know what population size and 
habitat areas are needed to support the continued existence of this 
species. However, specific recovery objectives and criteria to delist 
the species in the future, including targets for population/habitat 
sizes, will be developed during the formal recovery planning process. 
This process will involve species experts, scientists, and interested 
members of the public, in accordance with the interagency policy on 
recovery plans under the Act, published on July 1, 1994 (59 FR 34272).

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited the expert opinions of three peer reviewers 
regarding pertinent scientific or commercial data and assumptions 
relating to population status and biological and ecological information 
for Astragalus pycnostachyus var. lanosissimus. Only one reviewer 
responded. This reviewer provided supporting information for the 
listing of the species and described the information included in the 
rule as factually correct to the best of his knowledge.

Summary of Factors Affecting the Species

    Section 4 of the Endangered Species Act and regulations (50 CFR 
part 424) promulgated to implement the listing provisions of the Act 
set forth the procedures for adding species to the Federal lists. A 
species may be determined to be an endangered or threatened species due 
to one or more of the five factors described in section 4(a)(1). These 
factors and their application to Astragalus pycnostachyus var. 
lanosissimus are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    Astragalus pycnostachyus var. lanosissimus is believed to have been 
extirpated from all but one of the general areas from which it has been 
collected. In Los Angeles County, this taxon was collected in the late 
1800s and early 1900s from Santa Monica, Ballona Marsh, and ``Cienega'' 
(probably near Ballona Marsh). These coastal areas are now urbanized 
within the expansive Los Angeles metropolitan area. About 90 percent of 
the Ballona wetlands, once encompassing almost 2000 acres, have been 
drained, dredged, and developed into the urban areas of Marina del Rey 
and Venice (Critchfield 1978; Friends of Ballona Wetlands 1998). 
Ballona Creek, the primary freshwater source for the wetland, had been 
straightened, dredged, and channelized by 1940 (Friesen, et al. 1981). 
Despite periodic surveys of what remains at the Ballona wetlands, A. 
pycnostachyus var. lanosissimus has not been collected there since the 
early 1900s (Gustafson 1981; herbarium labels from collections by H. P. 
Chandler and by E. Braunton, 1902, housed at U.C. Berkeley Herbaria). 
Barneby (1964) believed that A. pycnostachyus var. lanosissimus was 
extirpated from all areas south of Santa Monica by the mid-1960s. In 
1987, botanists searched for A. pycnostachyus var. lanosissimus at 
previous collection locations throughout its range in coastal habitats, 
including Bolsa Chica in Orange County and on public lands around 
Oxnard in Ventura County, without success (F. Roberts, Service, in. 
litt. 1987; R. Burgess, CNPS, in. litt. 1987; T. Thomas, Service, pers. 
comm. 1997). Point Mugu Naval Air Weapons Station, in southern Ventura 
County, may have potential habitat. Detailed surveys have not been 
conducted there; however, A. pycnostachyus var. lanosissimus was not 
found during cursory surveys of the base, and this taxon has never been 
collected there.
    The single known population of Astragalus pycnostachyus var. 
lanosissimus occurs near the city of Oxnard, in a degraded backdune 
community. From 1955 to 1981 the land on which it occurs was used as a 
disposal site for oil field wastes (Impact Sciences, Inc. 1998). In 
1998, the City of Oxnard published a Final Environmental Impact Report 
(FEIR) for

[[Page 27904]]

development of this site (Impact Sciences, Inc. 1998). The proposal for 
the site includes remediation of soils contaminated with hydrocarbons, 
followed by construction of 364 homes and a 6-acre lake on a total of 
91 acres, including the land on which A. pycnostachyus var. 
lanosissimus grows. The proposed soil remediation would involve 
excavation and stockpiling of the soils, followed by soil treatment and 
redistribution of the soils over the site (Impact Sciences, Inc. 1998), 
destroying the A. pycnostachyus var. lanosissimus population that was 
identified on the site late in the planning process. In order to 
mitigate for this loss, the project included provisions for seed 
collection and horticultural propagation, and transplantation of 
greenhouse seedlings and plants collected from the wild to off-site 
locations.
    The proposed project, as described in the FEIR, would adversely 
affect the only known population of A. pycnostachyus var. lanosissimus, 
resulting in the likely extinction of this taxon in the wild. On July 
27, 1999, the California Department of Fish and Game (CDFG) signed a 
Memorandum of Understanding (MOU) with the project proponent to 
establish a permanent rare plant preserve on site and provide for 
experimental off-site mitigation (see Appendix E, CDFG 2000). The 
intent of the MOU was to increase protections to the milk-vetch beyond 
that in the original project description. However, implementing the MOU 
would still result in intensive habitat disturbance during soil 
remediation, up to the edge of the extant stand of A. pycnostachyus 
var. lanosissimus. Under the MOU, when the project is complete there 
will be a 5-acre preserve surrounded by urban land use.
    The small size of the preserve and its proximity to future urban 
and suburban uses makes it subject to the effects of nonnative, 
invasive plant and animal species, increased water supply due to 
suburban irrigation runoff, and chemicals such as herbicides, 
pesticides, and fertilizers (see Conservation Biology Institute 2000, 
CDFG 2000 and references therein). Independently or in combinations, 
these factors present difficult management challenges which, if not 
adequately addressed, could lead to the elimination of A. pycnostachyus 
var. lanosissimus from the site. Nonnative plant and animal species are 
competitors and predators, respectively, that can directly reduce 
survival of native plants, and they can also upset the invertebrate 
(pollinator) and vascular plant associations upon which native plants 
depend (Conservation Biology Institute 2000). The limited information 
available about possible specific effects of competition and predation 
on the Ventura marsh milk-vetch is described in CDFG (2000). While the 
life-history requirements of the Ventura marsh milk-vetch are not well 
understood, any factor that substantially alters the hydrology of the 
site, such as increases or decreases in urban/suburban runoff, is 
likely to make the site unsuitable for this wetland species (see the 
discussion of hydrology and small preserves in Conservation Biology 
Institute (2000)). Likewise, increased levels of chemicals arriving via 
runoff or drift can be expected in small preserves and can harm native 
species. Specific predictions about the effects of chemicals such as 
herbicides and pesticides on the proposed milk-vetch preserve would be 
speculative at this point, but given the proximity of the preserve to 
future suburban and urban uses, increases in pesticides or herbicides 
can be expected. These increases could harm the milk-vetch directly, or 
alter the pollinator or plant associations upon which it depends.
    Fuel management is also a concern for small preserves in urban or 
suburban areas; the fire hazard at the wildland-urban interface is 
receiving national and local attention (Federal Fire Policy 2001, 
Ventura County 2001). In this part of California much of the native and 
some of the nonnative vegetation is flammable. Currently the local fire 
department requires 100 feet of vegetation modification for fire safety 
(Ventura County 2001). If the proposed development design required that 
100 feet of fuel modification was necessary in the preserve, it would 
reduce the size of the core preserve to 1.9 acres. Finally, attempts to 
grow this species elsewhere in the wild have failed, or require 
constant intervention (Mary Meyer, March 2000 In litt.; Wayne Ferren, 
August 2000 In litt.). Thus, the preserve, as designed, does not 
adequately address the biological needs of the species, relies on 
unproven management measures, and will not insure protection of the 
site.

B. Overuse for Commercial, Recreational, Scientific, or Educational 
Purposes

    Overutilization is not known to be a problem for Astragalus 
pycnostachyus var. lanosissimus at present. Soon after this taxon was 
discovered, the project proponent installed a fence around the 
population, which appears to have been effective in minimizing 
unauthorized visitation.

C. Disease or Predation

    A sooty fungus was found on the leaves of Astragalus pycnostachyus 
var. lanosissimus in late summer, 1997, as leaves began to senesce and 
the plants entered a period of dormancy (Impact Sciences, Inc. 1997; T. 
Yamashita, Sunburst Plant Disease Clinic, pers. comm. 1998). The 
effects of the fungus on the population are not known, but it is 
possible that the fungus attacks senescing leaves in great number only 
at the end of the growing season. The plants appeared robust when in 
flower in June 1997, matured seed by October 1997, and were regrowing 
in March 1998, after a period of dormancy, without obvious signs of the 
fungus (D. Steeck, Service, pers. obs. 1997, 1998, 1999).
    The seeds of Astragalus pycnostachyus var. lanosissimus in 1997 
were heavily infested with seed beetles (Bruchidae: Coleoptera). In a 
seed collection made for conservation purposes, the Service found that 
while most fruits in 1997 partially developed at least 4 seeds, seed 
predation reduced the average number of undamaged seeds to only 1.8 per 
fruit (D. Steeck, Service, and M. Meyer, CDFG, unpublished data). 
Apparently heavy seed predation by seed beetles and weevils has been 
reported among other members of the genus Astragalus (Platt et al. 
1974; Lesica 1995). The effects of seed predation on the population and 
its variability from year to year are not known at this time.
    The introduced nonnative milk snail (Otala lactea) was observed 
causing damage to the foliage of Astragalus pycnostachyus var. 
lanosissimus in 1998 and 1999 concurrent with a dramatic decline in 
seedling plants (D. Steeck, Service pers. comm. 1999).
    Severely pruned plants were observed in 1999, which was attributed 
to small mammal herbivory (D. Steeck field notes 1999).

D. The Inadequacy of Existing Regulatory Mechanisms

    The California Fish and Game Commission listed Astragalus 
pycnostachyus var. lanosissimus as endangered under the Native Plant 
Protection Act (NPPA) (chapter 1.5 sec. 1900 et seq. of the California 
Fish and Game Code) and the California Endangered Species Act (CESA) 
(chapter 1.5 sec. 2050 et seq.) on April 6, 2000. California Senate 
Bill 879, passed in 1997 and effective January 1, 1998, requires 
individuals to obtain a section 2081(b) permit from CDFG to take a 
listed species incidental to otherwise lawful activities, and requires

[[Page 27905]]

that all impacts be fully mitigated and all measures be capable of 
successful implementation. However, past attempts to mitigate impacts 
to rare plant populations have often failed (Howald 1993), and it is 
unclear how well these requirements will provide for the long-term 
conservation of State-listed plants.
    The California Environmental Quality Act (CEQA) requires a full 
public disclosure of the potential environmental impacts of proposed 
projects. The public agency with primary authority or jurisdiction over 
the project is designated as the lead agency, and is responsible for 
conducting a review of the project and consulting with the other 
agencies concerned with the resources affected by the project. Section 
15065 of the CEQA Guidelines requires a finding of significance if a 
project has the potential to ``reduce the number or restrict the range 
of a rare or endangered plant or animal.'' Species that can be shown to 
meet the criteria for State listing, such as Astragalus pycnostachyus 
var. lanosissimus, are considered under CEQA (CEQA Section 15380). Once 
significant effects are identified, the lead agency must require 
mitigation for effects through changes in the project unless the agency 
decides that overriding social or economic considerations make 
mitigation infeasible. In the latter case, projects may be approved 
that cause significant environmental damage, such as destruction of 
endangered species. Protection of listed species through CEQA, 
therefore, is ultimately left to the discretion of the agency involved.
    The Coastal Zone Management Act of 1972 is a Federal statute that 
allowed for the establishment of the California Coastal Act (CCA) of 
1976. CCA established a coastal zone. In Ventura County, the site of 
the only known extant population of Astragalus pycnostachyus var. 
lanosissimus occurs in the California Coastal Zone (Impact Sciences, 
Inc. 1998). As required by CCA, Ventura County has developed a Coastal 
Land Use Plan. It currently designates the area occupied by A. 
pycnostachyus var. lanosissimus as Open Space, and amendments of the 
Coastal Land Use Plan will be required for approval of a residential 
development on this property. Land use decisions made by local agencies 
in the Coastal Zone are appealable to the California Coastal 
Commission. Although the Coastal Zone designation and CEQA require that 
unique biological resources, such as A. pycnostachyus var. 
lanosissimus, be considered in the planning process, any protection 
offered by these regulatory mechanisms is ultimately at the discretion 
of the local and State agencies involved and, therefore, does not 
assure protection for, or preclude the need to list, this taxon.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Astragalus pycnostachyus var. lanosissimus is threatened with 
extinction from unanticipated human activities and natural events by 
virtue of the very limited number of individuals in, and the small area 
occupied by, the only known extant population. A wildfire in the summer 
before seeds have matured, a plane crash (the taxon is under the 
extended center flight line of the Oxnard airport and a crash occurred 
on the site in 1995 (Murphy in litt. 1997), and other natural or 
unanticipated human-caused events could eliminate the existing 
population and result in the extinction of this taxon from the wild.
    The single known population of this taxon is also threatened by 
competition with nonnative plant species. Cortaderia selloana (pampas 
grass), Carpobrotus sp., and Bromus madritensis ssp. rubens are 
invasive nonnative plant species that occur at the site (Impact 
Sciences, Inc. 1997). Carpobrotus sp. in particular, are competitive, 
succulent species with the potential to cover vast areas in dense 
clonal mats. Bromus madritensis ssp. rubens grew in high densities 
around some mature individuals of Astragalus pycnostachyus var. 
lanosissimus in 1998, and seedlings were germinating among patches of 
Carpobrotus and Bromus in 1998 (D. Steeck, pers. obs. 1998). Seedling 
survival rates in these areas have not yet been determined. As 
explained under factor A, managing nonnative plants and animals and 
other threats to native species is difficult in small preserves 
(Conservation Biology Institute 2000, CDFG 2000). Carpobrotus and 
Bromus can compete directly with the milk-vetch and may also alter the 
microenvironment so seriously that they alter the invertebrate 
(pollinator) and vascular plant associations upon which the milk-vetch 
depends (see discussion of nonnative predators and competitors on the 
site in CDFG (2000)). In addition, the life history and biology of 
Astragalus pycnostachyus var. lanosissimus is not well known, owing to 
its only recent rediscovery. It will be many years before we understand 
what factors influence seedling germination and the production of 
viable seeds in the wild.
    Astragalus pycnostachyus var. lanosissimus is also threatened by 
activities in occupied habitat associated with planning for land use at 
the site. For example, the project proponents have conducted at least 
two excavations in the population to examine the soils in which the 
plants occur (D. Steeck, pers. obs. 1997) and to examine the root 
structure of an adult plant (R. Smith, R.A. Smith and Associates, pers. 
comm. 1998). In April 1998 the project proponents dug up and 
transported three plants out of Ventura County to a greenhouse in 
central California in a preliminary attempt at transplanting them. In 
addition to the direct removal of reproducing individuals from the 
population, exploratory excavations within the population can 
potentially alter the hydrology of the micro-site where the plants are 
found, reduce seedling establishment by burying or removing seeds and 
seedlings from the soil, and injure plant roots.
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by this taxon in determining this final rule. 
Residential and commercial development have resulted in the loss and 
alteration of this taxon's coastal habitat and are the most likely 
cause of population extirpation historically. Loss and alteration of 
habitat from soil remediation activities and proposed residential 
development threaten the only known extant population. Other threats 
include competition from nonnative plant species and unanticipated 
human activities and natural events which could diminish or destroy the 
very small extant population. Existing regulatory mechanisms are 
inadequate to protect this taxon. Because Astragalus pycnostachyus var. 
lanosissimus is in danger of extinction throughout all or a significant 
portion of its range, it fits the Act's definition of endangered.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
consideration or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures needed to bring the species to the point at which listing 
under the Act is no longer necessary.

[[Page 27906]]

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, we designate critical habitat at the time the species 
is determined to be endangered or threatened. Our regulations (50 CFR 
424.12(a)(1)) state that designation of critical habitat is not prudent 
when one or both of the following situations exist--(1) the species is 
threatened by taking or other activity and the identification of 
critical habitat can be expected to increase the degree of threat to 
the species or (2) such designation of critical habitat would not be 
beneficial to the species.
    In the proposed rule, we indicated that designation of critical 
habitat for Astragalus pycnostachyus var. lanosissimus was not prudent 
because we believed that designation of critical habitat would not 
provide any additional benefit beyond that provided through listing as 
endangered. We came to that conclusion because the plant occurs only on 
private land with no known Federal nexus, because the designation of 
critical habitat would not invoke the protection afforded under section 
9, and because, in this case, with no permit requirement, section 10 is 
not applicable. In addition, the private landowner and all appropriate 
non-Federal agencies were aware of the Federal status of this species 
and its location on private land.
    After further consideration, and in light of recent court rulings 
regarding critical habitat designations, we believe that Astragalus 
pycnostachyus var. lanosissimus may benefit from critical habitat 
designation. For example, critical habitat designation may educate and 
inform the public and help focus conservation efforts through future 
Federal, State, and local planning efforts and the public, by 
identifying the habitat needs and crucial areas for Astragalus 
pycnostachyus var. lanosissimus. Therefore, we now believe that 
critical habitat designation may be prudent for Astragalus 
pycnostachyus var. lanosissimus.
    Critical habitat is not determinable (50 CFR 424.12(a)(2)) when one 
or both of the following situations exist--(1) Information sufficient 
to perform required analyses of the impacts of the designation is 
lacking, or (2) the biological needs of the species are not 
sufficiently well known to permit identification of an area as critical 
habitat. Almost nothing is known of the habitat requirements of 
Astragalus pycnostachyus var. lanosissimus. All but two of the known 
collections of this taxon were made prior to 1930. Specimen labels from 
these collections and original published descriptions contain virtually 
no habitat information. The newly discovered population of A. 
pycnostachyus var. lanosissimus occurs at a site previously used for 
disposal of petroleum waste products (Impact Sciences, Inc. 1997), on 
soils that were likely transported from other locations as a cap for 
the disposal site once it was closed. The original source of these 
soils is not known. As a result of this lack of information about the 
habitat needs of the species, we believe that the biological needs of 
the species are not sufficiently well known to permit designation of an 
area as critical habitat, and find that critical habitat for A. 
pycnostachyus var. lanosissimus is not determinable at this time.
    Our regulations (50 CFR 424.17(b)(2)) require that, when we make a 
``not determinable'' finding, we designate critical habitat within two 
years of the publication date of the original proposed listing rule, 
unless the designation is found to be not prudent. However, our listing 
budget is currently insufficient to allow us to immediately complete 
all of the listing actions required by the Act. Listing the Ventura 
marsh milk-vetch without designation of critical habitat will allow us 
to concentrate our limited resources on higher-priority critical 
habitat and other listing actions, while allowing us to invoke 
protections needed for the conservation of this species without further 
delay. We will make a determination regarding critical habitat in the 
future at such time when our available resources and priorities allow.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Endangered Species Act include recognition, 
recovery actions, requirements for Federal protection, and prohibitions 
against certain activities. Recognition through listing encourages 
public awareness and results in conservation actions by Federal, State, 
and local agencies, private organizations, and individuals. The Act 
provides for possible land acquisition from willing sellers and 
cooperation with the States and requires that recovery actions be 
carried out for all listed species. The protection required of Federal 
agencies and the prohibitions against certain activities involving 
listed plants are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of the 
species or destroy or adversely modify its critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into formal consultation with the 
Service. The single known extant population of Astragalus pycnostachyus 
var. lanosissimus occurs on privately owned land. While currently there 
are no direct Federal authorizations needed for remediation of the 
contaminated soils of the site, Federal involvement could potentially 
arise from this situation in the future.
    The listing of Astragalus pycnostachyus var. lanosissimus as 
endangered will provide for the development of a recovery plan for this 
taxon. Such a plan will bring together Federal, State, and local 
efforts for the conservation of this taxon. The plan will establish a 
framework for agencies to coordinate activities and to cooperate with 
each other in conservation efforts. The plan will set recovery 
priorities and describe site-specific management actions necessary to 
achieve the conservation of this taxon.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
plants. With respect to Astragalus pycnostachyus var. lanosissimus, all 
prohibitions of section 9(a)(2) of the Act, implemented by 50 CFR 17.1 
for endangered plants, apply. These prohibitions, in part, make it 
illegal for any person subject to the jurisdiction of the United States 
to import or export, transport in interstate or foreign commerce in the 
course of a commercial activity, sell or offer for sale in interstate 
or foreign commerce, or remove and reduce the species to possession 
from areas under Federal jurisdiction. In addition, for plants listed 
as endangered, the Act prohibits the malicious damage or destruction on 
areas under Federal jurisdiction and the removal, cutting, digging up, 
or damaging or destroying of such endangered plants in knowing 
violation

[[Page 27907]]

of any State law or regulation, including State criminal trespass law. 
Certain exceptions to the prohibitions apply to agents of the Service 
and State conservation agencies.
    The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of 
permits to carry out otherwise prohibited activities involving 
endangered plant taxa under certain circumstances. Such permits are 
available for scientific purposes and to enhance the propagation or 
survival of the species. Requests for copies of the regulations on 
listed species and inquiries about prohibitions and permits may be 
addressed to the U.S. Fish and Wildlife Service, Endangered Species 
Permits, 911 NE 11th Avenue, Portland, Oregon 97232-4181 (503/231-2063, 
facsimile 503/231-6243).
    It is the policy of the Service, published in the Federal Register 
on July 1, 1994 (59 FR 34272), to identify to the maximum extent 
practicable at the time a species is listed those activities that would 
or would not be likely to constitute a violation of section 9 of the 
Act. The intent of this policy is to increase public awareness of the 
effect of the listing on proposed and ongoing activities within the 
taxon's range. Astragalus pycnostachyus var. lanosissimus is not 
located on areas currently under Federal jurisdiction. Collection, 
damage, or destruction of this species on Federal lands is prohibited 
(although in appropriate cases a Federal endangered species permit may 
be issued to allow collection for scientific or recovery purposes). 
Such activities on areas not under Federal jurisdiction constitutes a 
violation of section 9 if conducted in knowing violation of State law 
or regulations, or in violation of State criminal trespass law. 
Questions regarding whether specific activities would constitute a 
violation of section 9 should be directed to the Field Supervisor of 
the Service's Ventura Fish and Wildlife Office (see ADDRESSES section).

National Environmental Policy Act

    The Fish and Wildlife Service has determined that Environmental 
Assessments, as defined under the authority of the National 
Environmental Policy Act of 1969, need not be prepared in connection 
with regulations adopted pursuant to section 4(a) of the Endangered 
Species Act of 1973, as amended. A notice outlining the Service's 
reasons for this determination was published in the Federal Register on 
October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

    This rule does not contain any new information collection 
requirements for which the Office of Management and Budget (OMB) 
approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is 
required. Any information collection related to the rule pertaining to 
permits for endangered and threatened species has OMB approval and is 
assigned clearance number 1018-0094. This rule does not alter that 
information collection requirement. For additional information 
concerning permits and associated requirements for threatened species, 
see 50 CFR 17.32.

References Cited

    A complete list of all references cited herein is available upon 
request from the Ventura Fish and Wildlife Office (see ADDRESSES 
section).

Author

    The primary authors of this notice are Diane Steeck and Tim Thomas, 
U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office (see 
ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
record keeping requirements, Transportation.

Regulation Promulgation

    Accordingly, the Service hereby amends part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as set forth 
below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Section 17.12(h) is amended by adding the following, in 
alphabetical order under the families indicated, to the List of 
Endangered and Threatened Plants to read as follows:


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------   Historic  range           Family            Status          When       Critical     Special
         Scientific name                Common name                                                                   listed      habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                   *                  *                  *                  *                  *                  *                  *
Astragalus pycnostachyus var.      Ventura marsh milk-   U.S.A. (CA)........  Fabaceae--Pea......  E                       708           NA           NA
 lanosissimus.                      vetch.
 
                   *                  *                  *                  *                  *                  *                  *
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[[Page 27908]]

    Dated: May 14, 2001.
Marshall P. Jones, Jr.,
Acting Director, Fish and Wildlife Service.
[FR Doc. 01-12663 Filed 5-18-01; 8:45 am]
BILLING CODE 4310-55-P