74112 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AT74 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Astragalus lentiginosus var. 

coachellae (Coachella Valley MilkVetch) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), herein 

address the designation of critical 

habitat for Astragalus lentiginosus var. 

coachellae (Coachella Valley milkvetch) under the Endangered Species 

Act of 1973, as amended (Act). In total, 

we are designating zero acres of critical 

habitat for Astragalus lentiginosus var. 

coachellae. We identified 17,746 ac 

(7,182 ha) of local, County, State, 

Federal, and private lands containing 

features essential to the conservation of 

A.l. var. coachellae in Riverside County. 

However, all habitat with essential 

features is located within areas to be 

conserved and managed by the draft 

Coachella Valley MSHCP/NNCP or 

within areas conserved within the 

Coachella Valley Preserve System under 

the Coachella Valley fringe-toed HCP, 

and therefore is excluded or exempted 

from critical habitat under section 

4(b)(2) or 3(5)(A) of the Act. 

DATES: This rule becomes effective on 

January 13, 2006. 

ADDRESSES: Comments and materials 

received, as well as supporting 

documentation used in the preparation 

of this final rule, will be available for 

public inspection, by appointment, 

during normal business hours at the 

Carlsbad Fish and Wildlife Office, 6010 

Hidden Valley Road, Carlsbad, 

California 92011. You may obtain copies 

of the final rule and economic analysis 

from this address or by calling (760) 

431–9440, or from our Internet site at 

http://carlsbad.fws.gov. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Jim Bartel, Field Supervisor, Carlsbad 

Fish and Wildlife Office (see ADDRESSES

section). 

SUPPLEMENTARY INFORMATION:

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 470 species, or 37.5 percent of the 

1,253 listed species in the U.S. under 

the jurisdiction of the Service, have 

designated critical habitat. 

We address the habitat needs of all 

1,253 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 the August 6, 

2004, Ninth Circuit judicial opinion, 

Gifford Pinchot Task Force v. United 

States Fish and Wildlife Service, found 

our definition of adverse modification 

was invalid. In response to the decision, 

the Director has provided guidance to 

the Service based on the statutory 

language. In this rule, our analysis of the 

consequences and relative costs and 

benefits of the critical habitat 

designation is based on application of 

the statute consistent with the 9th 

Circuit’s ruling and the Director’s 

guidance. 

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 coupled with the 

need to avoid the risks associated with 

noncompliance with judicially imposed 

deadlines, have left the Service with 

limited ability to provide for adequate 

public participation or to ensure a 

defect-free rulemaking process before 

making decisions on listing and critical 

habitat proposals. 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 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74113 

sandy alluvial washes in the northern 

Coachella Valley area spanning roughly 

from the sandy alluvial washes just east 

of Cabezon to the dunes off Washington 

Avenue, north and west of Indio in 

Riverside County, California. At the 

time A. l. var. coachellae was listed 

under the Act in 1998, we were aware 

that 90 percent of this taxon’s 

occurrences were located within 3 mi (5 

km) of Interstate 10 from north of Indio 

to Cabezon (Barrows 1987; CNDDB 

1996). A majority of these occurrences 

were discovered in and around Snow 

Creek, Whitewater River downstream 

from the percolation ponds, Mission 

and Morongo Creeks, the Willow Hole 

Reserve, the Big Dune south of Interstate 

Highway 10 (I–10), and the Coachella 

Valley Preserve (Coachella Valley 

Association of Governments 

unpublished data 2004). The largest 

populations of up to several thousand 

plants were found prior to listing in the 

Big Dune area south of I–10, including 

several thousand plants that were 

discovered again in 2005 (USFWS 

unpublished data 2005). Other areas 

containing large populations that were 

known prior to listing that contain from 

several hundred to a thousand plants 

include the Willow Hole reserve area, 

Snow Creek area, and Coachella Valley 

Preserve (Coachella Valley Association 

of Governments unpublished data 

2004). 

There also exists a disjunct Astragalus 

lentiginosus var. coachellae population 

that was known at the time of listing. 

This population is located 

approximately 50 miles (80 km) east of 

the Coachella Valley in the Chuckwalla 

Valley near the City of Desert Center. 

This population has only been found in 

a limited extent on and near a sandy 

roadside berm along a 5-mile (8-km) 

stretch of Highway 177, northeast of the 

City of Desert Center. The Palen Dunes, 

located approximately 3 miles (5 km) 

south of Highway 177, contain sandy 

soils that appear suitable for A. l. var. 

coachellae. However, it is uncertain 

whether the plant occurs in this area 

since surveys are limited to only one 

unsuccessful survey attempt in 1998 

(Bureau of Land Management, 

unpublished data 2001a). 

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 and its 

habitat is the extensive and growing 

urban development in the Coachella 

Valley (63 FR 53596), including 

residential, commercial, and 

agricultural development. Urbanization 

has both direct and indirect adverse 

effects on A. l. var. coachellae. 

Urbanization directly destroys suitable 

and occupied habitat onsite, and 

indirectly degrades suitable and 

occupied habitat by blocking the fluvial 

(water) and eolian (wind) transport of 

sand from sand source areas to 

downwind areas of suitable habitat. 

Other threats to Astragalus lentiginosus 

var. coachellae and its habitat include 

the obstruction of sand transport and 

competition by dense populations of 

invasive exotic plants, such as Saharan 

mustard (Brassica tournefortii) and 

Mediterranean grass (Schismus 

barbatus), and direct mortality by offhighway vehicle (OHV) use (63 FR 

53596). 

Previous Federal Actions 

The following section summarizes the 

Federal actions that occurred since the 

rule listing 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 Federal 

listing. 

At the time of listing we determined 

that designation of critical habitat was 

‘‘not prudent’’ (63 FR 53596). On 

November 15, 2001, the Center for 

Biological Diversity and the California 

Native Plant Society filed a lawsuit 

against Secretary of the Interior and the 

Service challenging our ‘‘not prudent’’

determinations for eight plant species 

listed as endangered or threatened, 

including Astragalus lentiginosus var. 

coachellae (Center for Biological 

Diversity, et al. v. Norton, No. 01 CV 

2101, S.D. Cal.). A second lawsuit 

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, 

S.D. Cal.). The parties in both cases 

agreed to remand the critical habitat 

determinations for the eight plant 

species at issue to the Service for 

reconsideration. On July 1, 2002, the 

Court directed us to reconsider our not 

prudent determination and submit to 

the Federal Register for publication a 

proposed critical habitat designation, if 

prudent, for Astragalus lentiginosus var. 

coachellae on or before November 30, 

2004, and to submit to the Federal 

Register for publication of a final critical 

habitat designation on or before 

November 30, 2005. The proposed rule 

to designate critical habitat for 

Astragalus lentiginosus var. coachellae 

was signed on November 30, 2004, and 

published in the Federal Register on 

December 14, 2004 (69 FR 74468). 

Summary of Comments and 

Recommendations 

During the initial 60-day public 

comment period for the proposed 

designation of critical habitat (69 FR 

74468), we contacted all appropriate 

State, local and Federal agencies, 

elected officials, scientific 

organizations, and other interested 

parties, via mail and/or fax, and invited 

them to submit comments and/or 

information concerning the proposed 

rule. We also published newspaper 

notices on December 17, 2004, in the 

Desert Sun, Palm Springs, CA; PressEnterprise, Riverside, CA; San Diego 

Union-Tribune, San Diego, CA; Orange 

County Register, Santa Ana, CA; and in 

the Los Angeles Times, Los Angeles, CA, 

inviting public comment. The initial 

comment period ended February 14, 

2005. We did not receive any requests 

for a public hearing prior to the 

published deadline. 

A second comment period was open 

from September 27, 2005, to October 27, 

2005 (70 FR 56434), announcing the 

availability of the September 2005 draft 

economic analysis (DEA) of critical 

habitat designation for Astragalus 

lentiginosus var. coachellae as prepared 

by Northwest Economic Associates and 

reopening the comment period for the 

proposed rule. All comments and new 

information have been incorporated into 

this final rule as appropriate. 

During the first comment period, we 

received four comments, including a 

joint letter from two non-profit 

organizations, a letter from a county 

agency, a water agency, and a local 

mining business. All four comment 

letters disagreed with the size and area 

proposed critical habitat: three of the 

letters requested the reduction of critical 

habitat and one letter requested the 

expansion of critical habitat to more 

areas. 

During the second comment period, 

we received one comment letter on the 

draft economic analysis from an 

environmental organization. The 

commenter, who also commented 

during the first comment period, 

disagreed with excluding areas from 

critical habitat and requested that we 

include sand source areas in critical 

habitat. The commenter also claimed 

that the economic analysis grossly 

overestimated the costs associated with 

74114 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

conserving Astragalus lentiginosus var. 

coachellae. 

Peer Review 

In accordance with our peer review 

policy published on July 1, 1994 (59 FR 

34270), we solicited independent 

opinions from four knowledgeable 

individuals who have expertise with the 

species, with the geographic region 

where the species occurs, and/or with 

the principles of conservation biology. 

The purpose of such review is to ensure 

that the designation is based on 

scientifically sound data, assumptions, 

and analyses, including input of 

appropriate experts and specialists. 

Of the four individuals contacted, two 

responded. The two peer reviewers that 

responded generally supported the 

proposal and provided us with 

additional information, clarifications, 

and suggestions to improve the final 

critical habitat designation. One 

reviewer recommended expanding the 

critical habitat designation to include 

lands within the draft Coachella Valley 

Multiple Species Habitat Conservation 

Plan and Natural Community 

Conservation Plan (MSHCP/NCCP) that 

were proposed for exclusion. This 

recommendation was based on the fact 

that the draft Coachella Valley MSHCP/ 

NCCP has yet to be approved and that 

effective conservation efforts for 

Astragalus lentiginosus var. coachellae 

are, therefore, still unproven. The other 

peer reviewer did not comment on 

whether critical habitat should be 

expanded or reduced, but recommended 

the Service provide more explanation 

for our determinations for including or 

excluding certain areas from designated 

critical habitat. Both peer reviewers 

discussed the importance of including 

important sand source areas as critical 

habitat because they are important for 

providing and transporting sediment 

containing new sands to downstream 

and downwind sandy areas containing 

PCEs, even though these areas do not 

contain PCEs that support populations 

of this taxon. Both reviewers suggested 

ways to improve the clarity of both the 

rule and our decision-making process. 

We reviewed all comments, including 

comments received from the public and 

peer reviewers during the comment 

periods, for substantive, relevant issues 

and new data regarding critical habitat 

and Astragalus lentiginosus var. 

coachellae. Peer reviewer comments are 

summarized and addressed separately 

in the following section. Public 

comments are grouped into three 

general issue categories relating to 

critical habitat and the draft economic 

analysis and addressed in the Public 

Comments section below. 

Peer Review Comments 

(1) Comment: A peer reviewer 

requested we clarify how critical habitat 

may provide legal protection to a 

federally listed plant on non-Federal 

lands. Specifically, they sought more 

information on several matters, 

including: (1) Whether non-Federal 

landowners were contacted about the 

proposed critical habitat designation 

and inquired about their perspective of 

the proposal; (2) whether non-Federal 

landowners are currently under any 

agreement with State, Federal, or local 

governments for the conservation of this 

taxon; (3) an assessment of how the 

proposed designation may open the 

Service to litigation for designating 

critical habitat on non-Federal lands 

and increase vandalism to plants on 

non-Federal lands. 

Our Response: First, although some 

habitat containing features essential to 

the conservation of Astragalus 

lentiginosus var. coachellae were 

determined to occur on non-Federal 

lands, these lands were excluded from 

critical habitat designation because of 

their inclusion in the preferred 

alternative reserve design in the draft 

Coachella Valley MSHCP/NCCP (CVMC 

2004). 

Second, we did not contact all nonFederal landowners whose property 

contained habitat with features essential 

to the conservation of this taxon. 

However, we did inform the public 

about the proposed critical habitat 

designation through several local 

newspapers and with a letter to elected 

officials and several local, State, Tribal, 

and Federal agencies working in the 

Coachella Valley. We also are currently 

working with non-Federal landowners 

whose property contains habitats with 

features essential to the conservation of 

this taxon on the draft Coachella Valley 

MSHCP/NCCP to conserve habitat for 

this taxon. 

Third, it is not within the scope of a 

critical habitat designation to determine 

whether a designation of critical habitat 

on non-Federal lands will make the 

Service more vulnerable to litigation. As 

required under section 4(b)(1)(A) of the 

Act, we use the best scientific data 

available to determine areas that contain 

habitat with features essential to the 

conservation of the species. Ownership 

of lands being proposed as critical 

habitat is relevant to the Secretary’s 

consideration under 4(b)(2) of the Act of 

relevant factors such as the economic 

impacts to landowners of designating 

such lands as critical habitat. We also 

share concerns that designating critical 

habitat may lead to an increase in 

vandalism of Astragalus lentiginosus 

var. coachellae, as stated in our rule to 

list the species on October 6, 1998 (63 

FR 53596). However, we anticipate that 

vandalism to this taxon may not 

increase since we are working with nonFederal landowners on the draft 

Coachella Valley MSHCP/NCCP and 

excluding lands that contain habitat 

with features essential to the 

conservation of the species from critical 

habitat. Furthermore, the draft 

Coachella Valley MSHCP/NCCP is also 

proposing to protect reserve areas 

containing A. l. var. coachellae with 

fencing and other forms of enforcement. 

These types of actions under a 

comprehensive management plan offer 

more protections for federally listed 

plants, such as A. l. var. coachellae, on 

non-Federal lands than a critical habitat 

designation. 

(2) Comment: A peer reviewer 

emphasized the importance of 

protecting various types of habitat, 

including: (1) Currently unoccupied 

habitat; (2) currently unoccupied habitat 

that was historically occupied; (3) 

potential habitat downwind and 

downstream of current populations; and 

(4) source sand areas that provide future 

habitat in downwind and downdrainage areas. Another reviewer stated 

that it was unclear in the proposed rule 

whether these areas were included as 

critical habitat. 

Our Response: First, the Act defines 

critical habitat as ‘‘specific areas within 

the geographical area occupied by the 

species, at the time it is listed * * * on 

which are found those physical and 

biological features (I) essential to the 

conservation of the species and (II) 

which may require special management 

considerations or protection.’’ We have 

identified all areas within the 

geographic range of the species that are 

known to be occupied, contain features 

essential to the conservation of 

Astragalus lentiginosus var. coachellae, 

and that may require special 

management considerations or 

protection. It is not our current policy 

to include all areas that could 

potentially provide suitable habitat or 

are not known to be occupied, even if 

they were historically occupied. 

Second, we agree with the reviewer that 

sand source areas are important for the 

conservation of A. l. var. coachellae. 

However, we have determined that the 

presence of active sand dunes (primary 

constituent element (PCE) 1) is an 

essential feature, and we have 

designated them as a PCE (see Primary 

Constituent Elements for a detailed 

discussion). Therefore, Federal actions 

that affect the sand transport system 

will indirectly affect critical habitat. 

Because there is already a regulatory 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74115 

mechanism within this designation, it is 

not necessary to designate the sand 

source areas themselves. Federally 

funded or permitted projects affecting 

listed species outside their designated 

critical habitat areas may still result in 

jeopardy findings in some cases. 

(3) Comment: A peer reviewer stated 

that one of the benefits of designating 

critical habitat is that it helps in 

identifying extant populations of 

Astragalus lentiginosus var. coachellae 

when initiating Section 7 consultations. 

Our Response: We agree with the 

reviewer that there is an educational 

benefit of designating critical habitat 

because it identifies areas that contain 

features essential to the conservation of 

the species that may require special 

management protection or 

considerations, and this may provide 

information to Federal agencies required 

to consult with us on their actions. 

(4) Comment: The same peer reviewer 

stated that another benefit of 

designating critical habitat is identifying 

unoccupied areas that may be important 

areas for supporting Astragalus 

lentiginosus var. coachellae populations 

in the future. 

Our Response: We agree with the 

reviewer that unoccupied areas may be 

important for the recovery of the taxon 

by supporting future Astragalus 

lentiginosus var. coachellae 

populations. However, it is not the 

intent of the Act to designate critical 

habitat throughout a taxon’s entire 

range, including areas that potentially 

could be occupied. We have identified 

areas known to be occupied at the time 

of listing and known to be currently 

occupied that contain habitat with 

features essential to the conservation of 

this taxon. 

(5) Comment: A peer reviewer stated 

that it is beneficial to exclude areas from 

critical habitat if the area is already 

protected through the Federal or local 

government ownership as well as 

through private reserves. 

Our Response: We agree with the 

reviewer. A critical habitat designation 

will not afford as much protection for an 

area containing habitat with features 

essential to the conservation of 

Astragalus lentiginosus var. coachellae 

as would be afforded under Federal, 

State, Tribal, or local ownership 

provided the property is managed for 

the conservation of this taxon. Also, 

under the definition of critical habitat, 

we can only include lands in critical 

habitat if the essential features may 

require special management 

considerations or protection. Thus, we 

have excluded all areas containing 

features essential to the conservation of 

this taxon due to their inclusion within 

conservation areas that are or will be 

conserved and managed by Federal and 

local governments (see section titled 

Application of Section 3(5)(A) and 

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

Act for a more detailed discussion). 

(6) Comment: A peer reviewer stated 

that designating only small tracts of 

land as critical habitat may not be 

beneficial because of the movement of 

suitable habitat through time due to 

wind and flooding, thus resulting in 

these areas becoming unsuitable. 

Our Response: First, as discussed 

above in Comment #5, we have 

excluded in this final rule all areas that 

were proposed as critical habitat. 

Second, the reason only small tracts of 

lands were originally proposed as 

critical habitat was because larger 

adjacent areas with habitat containing 

features essential to conservation of this 

taxon were either excluded from the 

designation because they are proposed 

for protection under the draft Coachella 

Valley MSHCP/NCCP. We believe that 

these conservation practices will garner 

more conservation benefits than a 

critical habitat designation (see section 

titled Application of Section 3(5)(A) and 

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

Act for a more detailed discussion). 

(7) Comment: A peer reviewer stated 

that there is value in the process for 

determining critical habitat because it 

has allowed for an assessment of areas 

with habitat that contain features 

essential to the conservation of the 

taxon, even though not all these areas 

are being proposed because they are 

being addressed in other management 

plans. 

Our Response: We agree with the 

reviewer and have discussed this later 

in the rule (see Relationship of Critical 

Habitat to the Pending Coachella Valley 

Multiple Species Habitat Conservation 

Plan and Natural Community 

Conservation Plan and Natural 

Community Conservation Plan 

(MSHCP/NCCP) for a detailed 

discussion). 

(8) Comment: A peer reviewer stated 

that there are many occurrences of 

Astragalus lentiginosus var. coachellae 

on sites that are ‘‘cut off’’ from sand 

sources by intervening land uses. The 

peer reviewer suggests that the rule 

would be more clear if it described how 

long these sites might be expected to 

support viable populations and whether 

these occurrences can be meaningful to 

long-term conservation for the plant, 

and whether management efforts could 

help protect these populations. 

Our Response: We agree with the 

reviewer that there are occurrences of 

Astragalus lentiginosus var. coachellae 

that are now isolated from the sand 

transport system and ‘‘cut off’’ from the 

sand sources that maintain suitable 

habitat for this plant. The long-term 

viability of these occurrences is reduced 

because there is little to no potential 

that the natural ecological processes that 

maintain the habitat for A. l. var. 

coachellae will return. The length of 

time that these isolated occurrences will 

remain into the future depends upon a 

variety of site-specific factors such as 

the degree of isolation from the sand 

transport system, size and scale of the 

development that is blocking the 

downstream movement of sediment, 

and the rate of sand loss around the 

plant population. Management efforts 

may substitute for the natural ecological 

processes by mechanically transferring 

sand to areas ‘‘cut off’’ from sand 

sources. These management practices 

are discussed below (see section titled 

Special Management Considerations or 

Protection). 

(9) Comment: A peer reviewer 

questioned why there were no Agua 

Caliente Reservation lands included 

within critical habitat if there are 

significant populations on these lands. 

Our Response: We recognize that 

important populations exist on Agua 

Caliente Reservation lands in the Big 

Dune area. However, we determined 

that these areas did not contain features 

essential to the conservation of this 

taxon because the ecological processes 

that maintain suitable habitat in this 

area from the Whitewater River sand 

transport system have been 

compromised by development in 

Cathedral City. New eolian sands are 

prevented by development from 

replenishing the Big Dune area. We have 

determined that without these 

ecological processes the long-term 

prospect of Astragalus lentiginosus var. 

coachellae populations in this area is 

reduced. 

(10) Comment: A peer reviewer stated 

that we should include a discussion on 

the best and worst case scenarios for 

Astragalus lentiginosus var. coachellae 

protections once the draft Coachella 

Valley MSHCP/NCCP is finalized. 

Our Response: The impacts and 

conservation measures provided for 

Astragalus lentiginosus var. coachellae 

under the draft Coachella Valley 

MSHCP/NCCP will be analyzed as part 

of a section 7 consultation for the 

issuance of a section 10(a)(1)(B) permit 

to the Coachella Valley Association of 

Governments (CVAG) and local 

jurisdictions. The Service has not 

completed the section 7 consultation for 

this section 10 permit at this time. 

However, we are confident that CVAG 

will reach a successful conclusion to its 

MSHCP/NCCP development process 

74116 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

and successfully conserve habitat for 

Astragalus lentiginosus var. coachellae 

to meet the requirements outlined in 

section 10(a)(1)(B) of the Act. The draft 

MSHCP/NCCP proposes to conserve 

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

var. coachellae habitat in their 

Conservation Areas that includes large 

core habitat areas and other important 

conservation areas, such as sand sources 

and sand transport corridors. Other 

goals include: (1) Protecting other 

important conservation areas to allow 

for population fluctuation and promote 

genetic diversity; (2) protecting 

necessary ecological processes, 

including the sand transport systems, 

that will be beneficial in maintaining 

the PCEs in the areas containing features 

essential for the conservation of A. l. 

var. coachellae; (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. 

Therefore, we have excluded under 

section 4(b)(2) of the Act all lands 

containing features essential for the 

conservation of A. l. var. coachellae 

within the Coachella Valley MSHCP/ 

NCCP plan area (see section titled 

Pending Coachella Valley Multiple 

Species Habitat Conservation Plan and 

Natural Community Conservation Plan 

MSHCP/NCCP for a more detailed 

discussion). 

(11) Comment: A peer reviewer stated 

that we should include a discussion on 

what options the Service has for 

conservation of Astragalus lentiginosus 

var. coachellae if the draft Coachella 

Valley MSHCP/NCCP is never finalized. 

Our Response: In the absence of an 

approved Coachella Valley MSHCP/ 

NCCP, Astragalus lentiginosus var. 

coachellae would continue to receive 

means for protection and be provided a 

program for its conservation under the 

Act. Under section 4 of the Act, the 

Service would develop and implement 

a recovery plan for A. l. var. coachellae, 

although there are currently no plans by 

the Service to fund or finish preparing 

a recovery plan. However, 

implementation of a recovery plan by 

landowners, Federal agencies, and other 

parties is voluntary. Section 7(a)(1) of 

the Act calls for Federal agencies 

(including the Department of the 

Interior), in consultation with and 

assistance from the Secretary of the 

Interior, to utilize their authorities in 

furtherance of the purposes of the Act. 

Section 7(a)(2) of the Act requires 

Federal agencies to ensure that any 

Federal action would not likely 

jeopardize the continued existence of 

the species or result in the destruction 

or adverse modification of critical 

habitat. Section 9 of the Act includes 

prohibitions on the removal and 

reduction to possession; maliciously 

damaging or destroying, or removing, 

cutting, digging up, or damaging or 

destroying in knowing violation of any 

state law; or in violation of a state 

criminal trespass law of A. l. var. 

coachellae on Federal lands. 

The Bureau of Land Management 

(BLM) continues to manage Astragalus 

lentiginosus var. coachellae under the 

California Desert Conservation Act and 

other authorities, including section 7 of 

the Act. We have made significant 

progress in completing the Coachella 

Valley MSHCP/NCCP and we believe 

that the plan would provide a greater 

level of conservation to A. l. var. 

coachellae than would sections 4, 7, and 

9 of the Act by themselves. The plan 

provides for the conservation of core 

habitat areas and other conserved 

habitats that would benefit the species, 

protects necessary ecological processes 

and biological corridors and linkages, 

implements monitoring and 

management programs, and restricts 

activities that result in adverse impacts 

to this plant. 

(12) Comment: A peer reviewer stated 

that we should include a discussion on 

the Service’s authority (if any) to 

monitor compliance of the Coachella 

Valley MSHCP/NCCP and ensure that 

conservation measures for Astragalus 

lentiginosus var. coachellae are 

implemented as proposed in the draft 

plan. 

Our Response: Section 10(a)(2)(B) of 

the Act specifies that an incidental take 

permit ‘‘shall contain such terms and 

conditions as the Secretary deems 

necessary or appropriate to carry out the 

purposes of this paragraph, including, 

but not limited to, such reporting 

requirements as the Secretary deems 

necessary for determining whether such 

terms and conditions are being 

complied with.’’ The draft Coachella 

Valley MSHCP/NNCP includes 

monitoring and reporting requirements 

that will be incorporated into any 

permit issued under the plan. 

(13) Comment: The same peer 

reviewer also stated that the Service 

should describe any proposed 

monitoring or adaptive management in 

the draft plan that might ensure 

adequate remedial work that will be 

done if needed. 

Our Response: The draft Coachella 

Valley MSHCP/NCCP follows an 

adaptive management approach that 

involves development of objectives, 

conceptual models of system dynamics, 

a monitoring program, and changes to 

management based on monitoring 

results. The facets are interrelated and 

their integration will test assumptions 

systematically in order to adapt and 

learn. 

(14) Comment: A peer reviewer stated 

that the Service’s analysis of the benefits 

of excluding lands covered under the 

draft Coachella Valley MSHCP/NCCP 

did not present a cogent argument for 

why the benefits of excluding critical 

habitat within the draft Coachella Valley 

MSHCP/NCCP outweigh the benefits of 

inclusion. 

Our Response: We believe that our 

argument for excluding non-Federal 

lands within the draft Coachella Valley 

MSHCP/NCCP emphasizes the point 

that benefits of a comprehensive 

management plan that covers a federally 

listed plant on non-Federal lands will 

garner more conservation benefits than 

designating critical habitat (see section 

titled Relationship of Critical Habitat to 

the Pending Coachella Valley Multiple 

Species Habitat Conservation Plan and 

Natural Community Conservation Plan 

and Natural Community Conservation 

Plan (MSHCP/NCCP) for a more detailed 

discussion). 

Comments From the State 

Section 4(i) of the Act states, ‘‘the 

Secretary shall submit to the State 

agency a written justification for her 

failure to adopt regulation consistent 

with the agency’s comments or 

petition.’’ No comments were received 

from the State regarding the proposal to 

designate critical habitat for the 

Astragalus lentiginosus var. coachellae. 

Comments Related to the Process of 

Designating Critical Habitat 

(15) Comment: One commenter stated 

that the Service failed to cite any 

scientific evidence supporting our 

decision to exclude certain areas with 

habitat containing features essential to 

the conservation of the taxon from the 

critical habitat designation. 

Our Response: Section 4(b)(2) of the 

Act allows us to consider the economic, 

national security, 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. As 

outlined in the proposed rule, we 

determined the benefits of exclusion 

outweigh the benefits of including lands 

covered by the draft Coachella Valley 

MSHCP/NCCP. We have also clarified 

our determination that exclusion of 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74117 

these areas will not result in extinction 

of the species (see section titled 

Relationship of Critical Habitat to the 

Pending Coachella Valley Multiple 

Species Habitat Conservation Plan and 

Natural Community Conservation Plan 

and Natural Community Conservation 

Plan (MSHCP/NCCP) for a more detailed 

discussion). 

(16) Comment: A commenter 

contended that Habitat Conservation 

Plans (HCPs: In this case the draft 

Coachella Valley MSHCP/NCCP) have 

very different goals for species 

conservation than critical habitat 

designations. HCPs allow for take of 

covered species, reducing species 

numbers that are already in crisis of 

extinction even further and further 

reducing listed species opportunity for 

recovery. Whereas, a critical habitat 

designation and protection are meant to 

promote recovery of the species (section 

3(3) and 3(5) of the Act; F.3d 434 and 

the August 6, 2004, Ninth Circuit 

judicial opinion, Gifford Pinchot Task 

Force v. United State Fish and Wildlife 

Service). Furthermore, under the Act, 

‘‘essential habitat’’ and ‘‘unoccupied 

areas’’ that are critical to the species 

survival and recovery have no legal 

definition and therefore no legal 

standing under the law. As a result, the 

commenter contended that by not 

designating critical habitat as required, 

the Service is an abdication of 

responsibility to follow the law. 

Our Response: The Service has 

operated under the Secretary’s 

discretion to exclude areas from critical 

habitat if the benefits of such exclusion 

outweigh the benefits of its inclusion. 

Section 4(b)(2) of The Act states ‘‘the 

Secretary shall designate critical habitat, 

and make revisions thereto, under 

subsection (a)(3) on the basis of the best 

scientific data available and after taking 

into consideration the economic impact, 

and any other relevant impact, of 

specifying any particular area as critical 

habitat. The Secretary may exclude any 

area from critical habitat if he 

determines that the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat, unless he determines, 

based on the best scientific data 

available, that the failure to designate 

such area as critical habitat will result 

in the extinction of the species 

concerned.’’

The Service’s exclusion of areas 

containing features essential to the 

conservation of Astragalus lentiginosus 

var. coachellae from critical habitat is 

based on the inclusion of these areas 

within conservation areas of a nearly 

approved HCP. The benefits to A. l. var. 

coachellae that are garnered from a HCP 

outweigh the benefits of including these 

areas as designated critical habitat and 

applying another regulatory hardship on 

HCP participants for lands that are 

already or will conservation benefits for 

A. l. var. coachellae. 

(17) Comment: A commenter stated 

that there is a benefit of having 

designated critical habitat in excluded 

areas should the draft Coachella Valley 

MSHCP/NCCP and Coachella Valley 

Fringe-Toed Lizard HCP falter in their 

conservation mandate. 

Our Response: If these HCPs were to 

fail in their conservation mandate, it 

would be possible for the Service to repropose these areas for critical habitat 

designation. However, the Service has 

determined that the benefits of 

designating critical habitat in these 

areas do not outweigh the benefits of 

excluding these areas from designation 

while these lands are covered under 

either the Coachella Valley MSHCP or 

the Coachella Valley Fringe-Toed Lizard 

HCP, and therefore have excluded these 

areas from designation. 

(18) Comment: One commenter 

expressed their concern that any 

designation of critical habitat within the 

draft Coachella Valley MSHCP/NCCP 

Plan Area may jeopardize the 

participation by various cities in the 

Plan. 

Our Response: It is our determination 

that maintaining partnerships in the 

planning process for the Coachella 

Valley MSHCP/NCCP will provide a 

greater conservation benefit to 

Astragalus lentiginosus var. coachellae 

than designating critical habitat on 

lands under these partners’ auspices 

and potentially losing their 

participation in the Plan. 

(19) Comment: A commenter stated 

that the proposed critical habitat 

included only one of twenty-six 

Astragalus lentiginosus var. coachellae 

locations recorded in the California 

Natural Diversity Database (CNDDB). 

They also stated that it is unclear if the 

remaining locations are within lands 

excluded from the designation, and 

commented that all lands with habitat 

essential to the conservation of the 

taxon should be included as critical 

habitat. They also stated excluding 

critical habitat would hurt the recovery 

potential of the taxon. 

Our Response: Ten of twenty-eight 

CNDDB records (there are 28 records 

rather than 26 as stated in the comment) 

were captured within areas that we have 

determined contain features essential to 

the conservation of this taxon. In 

determining these areas, it is important 

not only to look at quantity of locations 

that were captured, but also the quality 

of the locations that were captured. 

Several of the CNDDB records are in 

habitats that are severely degraded due 

to significant disturbance from nearby 

development. Additionally, in 

determining areas containing essential 

features, we compiled a larger dataset of 

Astragalus lentiginosus var. coachellae 

locations than just the CNDDB records. 

It is evident from our data that we have 

captured a majority of the high quality 

locations within areas possessing 

features essential to the conservation of 

this taxon. High-quality locations 

include those sites with PCEs and are 

within areas still functioning as part of 

one of the three major sand transport 

systems in the Coachella Valley. We 

believe we captured locations that have 

the best prognosis for long-term survival 

and are the areas essential to the 

conservation of the taxon. Our proposed 

rule for critical habitat designation of A. 

l. var. coachellae clearly mapped areas 

that were being proposed as critical 

habitat as well as areas that were 

proposed for exclusion. We do not 

believe that it should have been 

confusing to determine as to whether 

the CNDDB records were located either 

within proposed areas, excluded areas, 

or areas not containing features essential 

to the conservation of A. l. var. 

coachellae. 

We also do not believe that all areas 

containing features essential to the 

conservation of Astragalus lentiginosus 

var. coachellae should be designated 

critical habitat if they are within areas 

that are already receiving or will very 

likely receive management benefits to 

this taxon (see section titled Application 

of Section 3(5)(A) and Exclusions Under 

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

detailed discussion). On the same note, 

we do not believe that excluding critical 

habitat based on existing or pending 

habitat conservation plans would set 

back the recovery potential of A. l. var. 

coachellae since these plans provide 

more conservation benefits than would 

be provided by designating these areas 

as critical habitat. As a result, we 

believe that the long-term partnerships 

that are formed by agreeing to habitat 

conservation plans or other 

conservation plans that provide 

conservation benefits to A. l. var. 

coachellae work more effectively toward 

promoting the recovery of this taxon 

than would a critical habitat 

designation. 

(20) Comment: One commenter stated 

that the critical habitat designation 

suffers from a lack of habitat 

connectivity. 

Our Response: We recognize that 

habitat connectivity is an important 

aspect of a critical habitat designation 

because this allows for gene flow 

74118 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

between populations and recolonization 

of areas with endangered or extirpated 

populations. We used the best available 

scientific data to develop the criteria 

used to delineate critical habitat 

boundaries associated with both recent 

occurrences and occurrences known at 

the time of listing (see Criteria Used To 

Identify Critical Habitat). We recognize 

that designation of critical habitat may 

not include all of the habitat areas that 

may eventually be determined to be 

necessary for the recovery of the 

species. For these reasons, critical 

habitat designations do not signal that 

habitat outside the designation is 

unimportant or may not be required for 

recovery. 

Comments Related to Site-Specific 

Areas and Unoccupied Areas Identified 

for Possible Inclusion 

(21) Comment: One commenter 

requested that unoccupied areas 

identified in the proposed rule as being 

important to maintain fluvial and eolian 

processes be included as part of the 

final critical habitat designation. 

Our Response: See response to 

Comment #2 above. 

(22) Comment: A commenter stated 

that not all Coachella Valley Water 

District (CVWD) lands were excluded 

from the critical habitat designation, 

possibly due to the Service’s use of 

outdated parcel data. Similarly, another 

commenter stated that we should 

remove all Granite Construction 

Company property from critical habitat 

designation and suggested that its 

inclusion may be due to errors in parcel 

data. 

Our Response: We excluded all 

CVWD lands from critical habitat 

because of their participation and 

anticipated signatory status in the draft 

Coachella Valley MSHCP/NCCP 

planning process (see Discussion in 

Relation of Critical Habitat to the 

Pending Coachella Valley Multiple 

Species Habitat Conservation Plan/ 

Natural Communities Conservation Plan 

(MSHCP/NCCP)). The inclusion of 

CVWD property within the critical 

habitat designation was an artifact of 

our mapping process during the 

proposed rule for describing legal 

boundaries for areas with habitat 

containing features essential for the 

conservation of this taxon. The mapping 

process for the proposed rule overlaid a 

100m by 100m grid on areas containing 

essential features to create an outer 

boundary that was used to describe the 

legal Universal Transverse Mercator 

(UTM) coordinates. In some areas, this 

process captured excluded Water 

District lands containing essential 

features for the conservation of this 

taxon. We changed our mapping 

procedure for the final designation and 

abandoned use of the grid system. 

Instead, the legal UTM coordinates for 

the boundary of the critical habitat 

followed precisely with the boundary of 

the areas containing essential features. 

As a result, all CVWD lands containing 

features essential for the conservation of 

this taxon were excluded from critical 

habitat designation pursuant to section 

4(b)(2) of the Act. 

Granite Construction Company lands 

were also included within the legal 

maps for the same reasons. After the 

change in our mapping process for the 

final designation, Granite Construction 

Company lands are no longer in critical 

habitat because they do not contain 

habitat with features essential to the 

conservation of this taxon. 

(23) Comment: Two commenters 

requested that BLM lands north of the 

percolation ponds be removed from 

critical habitat because it is not suitable 

habitat. One of these commenters also 

requested that all remaining BLM lands 

within the draft Coachella Valley 

MSHCP/NCCP Plan be excluded from 

critical habitat because the BLM’s 

California Desert Conservation Area 

Plan Amendment (CDCAPA) for the 

Coachella Valley already requires BLM 

to manage their lands consistent with 

the Coachella Valley MSHCP/NCCP. 

Our Response: We agree with the 

commenter and all BLM lands that were 

proposed as critical habitat are excluded 

from designation in this final rule based 

on BLM’s commitment under their 

CDCAPA to manage their lands 

consistent with the draft Coachella 

Valley MSHCP once it is completed (see 

section titled Relationship of Critical 

Habitat to the Pending Coachella Valley 

Multiple Species Habitat Conservation 

Plan and Natural Community 

Conservation Plan and Natural 

Community Conservation Plan 

(MSHCP/NCCP) for a more detailed 

discussion). 

(24) Comment: One commenter stated 

that the Astragalus lentiginosus var. 

coachellae population located north of 

Desert Center also be included as 

critical habitat since it represents an 

important peripheral population. The 

commenter also discusses other 

peripheral populations that were not 

included. 

Our Response: Although the 

Astragalus lentiginosus var. coachellae 

population in Desert Center appears 

unusual because it is so disjunct from 

the main center of the taxon’s range, we 

do not have any information indicating 

that this population has special 

demographic, ecological, or genetic 

significance. It is not the intent of the 

Act to include every population 

throughout a species’ range within 

critical habitat. The commenters did not 

provide information indicating the 

significance of the Desert Center 

population or what other peripheral 

populations should have been included 

within critical habitat. 

(25) Comment: A commenter 

requested clarification on the area of 

proposed critical habitat in Unit 1 

outside the bounds of the Whitewater 

Floodplain Conservation Area 

(southeast of the Conservation Area). 

Our Response: This area has been 

determined to not contain features 

essential to the conservation of 

Astragalus lentiginosus var. coachellae 

and has been removed from critical 

habitat. 

Comments Related to the Draft 

Economic Analysis 

(26) Comment: A commenter stated 

that the draft economic analysis (DEA) 

should have included an analysis of 

benefits, such as maintaining natural 

flood control processes along 

waterways, amenity values, open space, 

flood/drought mitigation, and 

detoxification and decomposition of 

wastes. 

Our Response: In the context of a 

critical habitat designation, the primary 

purpose of the rulemaking (i.e., the 

direct benefit) is to designate areas in 

need of special management that 

contain the features that are essential to 

the conservation of listed species. 

The designation of critical habitat 

may result in two distinct categories of 

benefits to society: (1) Use; and (2) nonuse benefits. Use benefits are simply the 

social benefits that accrue from the 

physical use of a resource. Visiting 

critical habitat to see endangered 

species in their natural habitat would be 

a primary example. Non-use benefits, in 

contrast, represent welfare gains from 

‘‘just knowing’’ that a particular listed 

species’ natural habitat is being 

specially managed for the survival and 

recovery of that species. Both use and 

non-use benefits may occur 

unaccompanied by any market 

transactions. 

A primary reason for conducting this 

analysis is to provide information 

regarding the economic impacts 

associated with a proposed critical 

habitat designation. Section 4(b)(2) of 

the Act requires the Secretary to 

designate critical habitat based on the 

best scientific data available after taking 

into consideration the economic impact, 

and any other relevant impact, of 

specifying any particular area as critical 

habitat. Economic impacts can be both 

positive and negative and by definition, 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74119 

are observable through market 

transactions. 

Where data are available, this analysis 

attempts to recognize and measure the 

net economic impact of the proposed 

designation. For example, if the fencing 

of a species’ habitat to restrict motor 

vehicles results in an increase in the 

number of individuals visiting the site 

for wildlife viewing, then the analysis 

would recognize the potential for a 

positive economic impact and attempt 

to quantify the effect (e.g., impacts that 

would be associated with an increase in 

tourism spending by wildlife viewers). 

In this particular instance, however, the 

economic analysis did not identify any 

credible estimates or measures of 

positive economic impacts that could 

offset some of the negative economic 

impacts analyzed earlier in this 

analysis. 

Under Executive Order 12866, OMB 

directs Federal agencies to provide an 

assessment of both the social costs and 

benefits of proposed regulatory actions. 

OMB’s Circular A–4 distinguishes two 

types of economic benefits: direct 

benefits and ancillary benefits. 

Ancillary benefits are defined as 

favorable impacts of a rulemaking that 

are typically unrelated, or secondary, to 

the statutory purpose of the rulemaking. 

In the context of critical habitat, the 

primary purpose of the rulemaking (i.e., 

the direct benefit) is the potential to 

enhance conservation of the species. 

The published economics literature has 

documented that social welfare benefits 

can result from the conservation and 

recovery of endangered and threatened 

species. In its guidance for 

implementing Executive Order 12866, 

OMB acknowledges that it may not be 

feasible to monetize, or even quantify, 

the benefits of environmental 

regulations due to either an absence of 

defensible, relevant studies or a lack of 

resources on the implementing agency’s 

part to conduct new research. Rather 

than rely on economic measures, the 

Service believes that the direct benefits 

of the proposed rule are best expressed 

in biological terms that can be weighed 

against the expected cost impacts of the 

rulemaking. 

We have accordingly considered, in 

evaluating the benefits of excluding 

versus including specific area, the 

biological benefits that may occur to a 

species from designation (see below, 

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

Act), but these biological benefits are 

not addressed in the economic analysis. 

(27) Comment: The same commenter 

objected to the attribution of 

conservation costs that benefit multiple 

sympatric species solely to Astragalus 

lentiginosus var. coachellae in the DEA. 

Our Response: The DEA discusses 

other relevant regulations and 

protection efforts for other listed species 

that include Astragalus lentiginosus var. 

coachellae and its habitat. In general, 

the analysis errs conservatively in order 

to make certain the economic effects 

have not been missed. It treats as 

‘‘coextensive’’ other Federal and State 

requirements that may result in 

overlapping protection measures (e.g., 

California Environmental Quality Act) 

for the plant. The economic analysis 

distributes the cost of conserving A. l. 

var. coachellae habitat equally among 

the number of other listed species likely 

to co-exist with A. l. var. coachellae as 

indicated by the historical 

consultations. None of the past A. l. var. 

coachellae consultations focused solely 

on A. l. var. coachellae but rather on 

other listed and sensitive species cooccurring in the area. Within a 

biological opinion or HCP that covers 

several species, we are unable to 

accurately segregate out the cost for an 

individual species from the rest of the 

species covered in the biological 

opinion or HCP. 

(28) Comment: The same commenter 

stated that the DEA does not make a 

distinction between the costs of listing 

the species under the Act versus 

designating critical habitat. 

Our Response: The economic analysis 

is intended to assist the Secretary in 

determining whether the benefits of 

excluding particular areas from the 

designation outweigh the biological 

benefits of including those areas in the 

designation. Also, this information 

allows us to comply with direction from 

the U.S. 10th Circuit Court of Appeals 

that ‘‘co-extensive’’ effects should be 

included in the economic analysis to 

inform decision-makers regarding which 

areas to designate as critical habitat 

(New Mexico Cattle Growers Association 

v. U.S. Fish and Wildlife Service (248 

F.3d 1277)). 

This analysis identifies those 

potential activities believed to be most 

likely to threaten Astragalus 

lentiginosus var. coachellae and its 

habitat and, where possible, quantifies 

the economic impact to avoid, mitigate, 

or compensate for such threats within 

the boundaries of the critical habitat 

designation. Where critical habitat is 

being proposed after a species is listed, 

some future impacts may be 

unavoidable, regardless of the final 

designation and exclusions under 

section 4(b)(2). However, due to the 

difficulty in making a credible 

distinction between listing and critical 

habitat effects within critical habitat 

boundaries, this analysis considers all 

future conservation-related impacts to 

be co-extensive with the designation. 

(29) Comment: A commenter 

contended that pre-designation impacts 

are attributed to the listing of the 

species and not critical habitat, and 

therefore should not be included in the 

DEA. 

Our Response: The primary purpose 

of the economic analysis is to estimate 

the potential economic impacts 

associated with the designation of 

critical habitat for Astragalus 

lentiginosus var. coachellae. The Act 

defines critical habitat to mean those 

specific areas that are essential to the 

conservation of the species. The Act 

also defines conservation to mean the 

use of all methods and procedures 

necessary to bring any endangered 

species or threatened species to the 

point at which the measures of the Act 

are no longer necessary. Thus we 

interpret the Act to mean that the 

economic analysis should include all of 

the economic impacts associated with 

the conservation of the species, which 

may include some of the effects 

associated with listing because the 

species was listed prior to the proposed 

designation of critical habitat. We note 

that the Act generally requires critical 

habitat to be designated at the time of 

listing, and, that had we conducted an 

economic analysis at that time, the 

impacts associated with listing would 

not be readily distinguishable from 

those associated with critical habitat 

designation. 

(30) Comment: A commenter 

questioned the framework for 

quantifying conservation-related costs 

in the DEA of critical habitat for 

Astragalus lentiginosus var. coachellae 

for flood control projects, local 

transportation projects, California 

Department of Transportation (Caltrans) 

mitigation, and all other projects within 

the boundaries of the draft Coachella 

Valley MSHCP/NCCP as these projects 

and the costs associated with them are 

covered under the draft Coachella 

Valley MSHCP/NCCP. 

Our Response: As described in 

Section 8.6.2 of the DEA, the postdesignation Coachella Valley MSHCP/ 

NCCP costs captured by the DEA 

include management, monitoring, and 

administration of the Coachella Valley 

MSHCP/NCCP reserve system. These 

costs are calculated and allocated based 

on the rate of projected development 

within the units. Other nondevelopment related activities also 

contribute funds toward the 

management, monitoring and 

management of the Coachella Valley 

MSHCP/NCCP. As described in Section 

6.1.2.2 of the DEA, CVAG, the joint 

74120 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

powers authority functioning as lead 

agency for the preparation of the draft 

Coachella Valley MSHCP/NCCP, is 

expected to contribute approximately $1 

million toward management, 

monitoring, and administration of the 

Coachella Valley MSHCP/NCCP for 

transportation projects. The costs 

related to these transportation projects 

are not captured in the estimated 

Coachella Valley MSHCP/NCCP costs. 

Furthermore, as described in Sections 

6.1.2.3 and 8.1.1.2 of the DEA, the costs 

captured in the DEA for Caltrans 

mitigation and flood control are related 

to land acquisitions, and land 

acquisition costs were not captured in 

the estimated Coachella Valley MSHCP/ 

NCCP costs. The Coachella Valley 

MSHCP/NCCP costs estimated in the 

DEA include management, monitoring, 

and administration of the Coachella 

Valley MSHCP/NCCP reserve system. 

(31) Comment: The same commenter 

questioned the use of cost information 

from the draft Coachella Valley MSHCP/ 

NCCP in the DEA since the Coachella 

Valley MSHCP/NCCP is not yet 

finalized and will not be prior to final 

designation of critical habitat for 

Astragalus lentiginosus var. coachellae. 

Our Response: As described in 

Section 1.3 of the DEA, estimates of 

post-designation effects are based on 

activities that are ‘‘reasonably 

foreseeable,’’ including, but not limited 

to, activities that are currently 

authorized, permitted, or funded, or for 

which proposed plans are currently 

available to the public. The draft 

Coachella Valley MSHCP/NCCP falls 

under this latter category. While in draft 

form, planning and development of the 

Coachella Valley MSHCP/NCCP began 

12 years ago in 1994, and it is 

anticipated that the Coachella Valley 

MSHCP/NCCP will become permitted 

by year-end 2005. Furthermore, as 

described in response to Issue 1, 

considering the Coachella Valley 

MSHCP/NCCP costs captured by the 

DEA are separate from the estimated 

non-development-related costs, there 

are no double counting issues. 

(32) Comment: A commenter 

questioned the consistency in the 

allocation of habitat conservation planrelated costs to Astragalus lentiginosus 

var. coachellae in the DEA. In 

particular, the commenter questioned 

why conservation costs to develop the 

Agua Caliente Band of Cahuilla Indians 

HCP were not allocated to costs of 

critical habitat for Astragalus 

lentiginosus var. coachellae. 

Our Response: As described in 

Section 3.4 of the DEA, a draft HCP 

proposing coverage for 24 species, 

including Astragalus lentiginosus var. 

coachellae, has been developed for the 

Agua Caliente Indian Reservation. In the 

proposed rule, we did not identify 

habitat on Agua Caliente Tribal lands as 

containing features essential for the 

conservation of the Astragalus 

lentiginosus var. coachellae, thus, no 

pre or post-designation costs are 

estimated on Tribal lands as associated 

with the critical habitat designation. 

(33) Comment: A commenter 

questioned the relevancy of some of the 

development-related Astragalus 

lentiginosus var. coachellae 

conservation costs described in Table 

13. Specifically, the commenter 

questioned the inclusion of costs that do 

not directly or indirectly benefit A. l. 

var. coachellae. 

Our Response: As described in 

Section 5.1 of the DEA, the section 7 

consultation history involving 

Astragalus lentiginosus var. coachellae 

and development projects was 

reviewed. The consultation history for 

A. l. var. coachellae provides the types 

of conservation activities incurred by 

developers for conserving A. l. var. 

coachellae and its habitat. The costs 

associated with these consultations are 

not included in the DEA as these 

projects occurred in areas not identified 

in the proposed CHD. However, the 

information on the conservation 

activities is provided for background 

information on conservation efforts for 

the species and its habitat. Furthermore, 

while the commenters do not cite 

specific examples of costs included in 

the analysis that do not directly or 

indirectly benefit A. l. var. coachellae, 

this analysis does not include 

conservation costs for activities that do 

not benefit A. l. var. coachellae. 

(34) Comment: A commenter 

questioned the DEA’s derivation of the 

‘‘not allocated’’ pre-designation costs of 

conserving Astragalus lentiginosus var. 

coachellae incurred by development in 

essential habitat in Table 15 of the DEA. 

Our Response: The commenter is 

correct; Section 5.1.4 and Table 15 in 

the DEA are incorrect. Based on the 

consultation history for Astragalus 

lentiginosus var. coachellae, there have 

been five informal consultations and 

one formal consultation where the 

project proponent was required to 

implement A. l. var. coachellae 

conservation efforts. However, because 

these projects occurred in areas not 

identified in the proposed critical 

habitat designation, costs associated 

with these consultations are not 

included in this analysis. While the text 

and table in Section 5.1.4 of the DEA 

describe and estimate pre-designation 

costs for these projects, the remaining 

tables and text appropriately do not 

include these impacts. The final 

economic analysis will update Section 

5.1.4 and Table 15 to exclude these 

costs; however, the final results of the 

report are not changed by this comment. 

(35) Comment: A commenter asserted 

that the methodology used to quantify 

development impacts in the DEA is 

questionable as it assumes that habitat 

will be destroyed and it does not 

examine the ability of habitat to be 

acquired. 

Our Response: Section 2.2.2.1 of the 

DEA describes the model applied to 

estimate impacts to development. The 

draft Coachella Valley MSHCP/NCCP 

has proposed implementation of a onetime mitigation fee for future 

development within the boundaries of 

the Coachella Valley MSHCP/NCCP. 

These funds will be used by the County 

to finance the future acquisition of lands 

for the Coachella Valley MSHCP/NCCP 

reserve and are captured by the DEA 

(Section 5.2.1). The DEA assumes that 

development is allowed in habitat areas 

if appropriate mitigation fees paid. That 

is, this open city modeling approach 

assumes that land is not lost to 

development, but instead that 

development occurs with mitigation, for 

example, preserving habitat outside the 

footprint of the development project. It 

is uncertain which specific areas 

containing essential features may be 

developed during the forecast period 

and when those areas may be 

developed. By assuming that all future 

development is allowed in habitat areas 

with appropriate mitigation fees, the 

DEA captures the cost to development 

projects of protecting the plant and its 

habitat. 

(36) Comment: A commenter 

requested clarification on whether the 

Whitewater River/Thousand Palms 

Flood Control project is covered under 

the draft Coachella Valley MSHCP/ 

NCCP, if it is on hold due to lack of 

funding, or if it is moving forward. 

Our Response: As described in 

Section 8.2.1 of the DEA, ‘‘Currently, 

the flood control project has been 

delayed due to a lack of funding for the 

project. Therefore, at this time it is not 

possible to determine what, if any, 

additional measures may be required 

due to the proposed project redesign. 

However, the flood control project is a 

‘‘Covered Activity’’ in the draft 

Coachella Valley MSHCP.’’

(37) Comment: A commenter 

questioned the ‘‘not allocated’’ predesignation costs in Table 27 of the DEA 

of conserving Astragalus lentiginosus 

var. coachellae incurred by the BLM in 

areas containing features essential to the 

conservation of A. l. var. coachellae. 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74121 

Our Response: The commenter 

identified a mistake in Table 27 of the 

DEA. These costs occurred in areas not 

identified in the proposed critical 

habitat designation and should not be 

included in this Table. The remaining 

tables and text in the DEA appropriately 

do not include these impacts. The final 

economic analysis will update Table 27 

to exclude these costs; however, the 

final results of the report are not 

changed by this comment. 

(38) Comment: A commenter stated 

the cost model used in the DEA to 

estimate the administrative cost of 

section 7 consultation is highly inflated. 

Our Response: As described in 

Section 2.2 of the DEA, the cost model 

is based on a survey of Federal agencies 

and Service Field Offices across the 

country and the costs are believed to be 

representative of the typical range of 

costs of the section 7 consultation 

process. Throughout the development of 

the DEA, stakeholders were asked 

whether the range of estimated 

consultation costs was reasonable. In 

the case that stakeholders anticipated 

higher or lower costs, this improved 

information would be applied in the 

DEA. No stakeholders indicated, 

however, that the range of costs applied 

in the DEA was inappropriate. 

(39) Comment: A commenter stated 

that the cost estimates of species 

conservation as provided in the DEA 

conflict with the cost estimated in the 

draft Coachella Valley MSHCP/NCCP. 

Therefore, either the DEA or the draft 

Coachella Valley MSHCP/NCCP 

contains errors in its impact estimates. 

Our Response: Section E.S.5 of the 

draft Coachella Valley MSHCP/NCCP 

summarizes the costs of implementing 

the plan, including non-acquisition 

program administration costs, 

Monitoring Program, Management 

Program, and Adaptive Management 

Costs, and land acquisition and land 

improvement costs. The draft Coachella 

Valley MSHCP/NCCP estimates these 

costs will total almost $1.5 billion 

during the first 75 years of 

implementing the Coachella Valley 

MSHCP/NCCP. This impact estimate, 

however, is not directly comparable to 

that in the DEA as the policy actions 

being analyzed are different. The draft 

Coachella Valley MSHCP/NCCP 

estimates the cost of acquiring and 

managing its reserve area and 

conservation actions for the multiple 

species covered under the plan. Further, 

the geographic scope of the draft 

Coachella Valley MSHCP/NCCP and the 

areas designated as critical habitat for 

Astragalus lentiginosus var. coachellae 

are different. 

(40) Comment: A commenter 

questioned the use of ‘‘low income 

farmers’’ as an example of a group that 

may be adversely affected by species 

conservation in Section 1.1 of the DEA. 

The commenter stated that no Federal 

nexus exists for farming activity and 

therefore farming is exempt from any 

regulation by the Endangered Species 

Act. 

Our Response: As described in 

Appendix A of the DEA, approximately 

39 ac (16 ha ) of private lands in Units 

1 and 2 are classified as agriculture land 

and were included in proposed critical 

habitat. While the number of agriculture 

acres was negligible in the proposed 

rule, and actually not designated as 

critical habitat in the final rule, the use 

of farmers as an example of a group of 

individuals that could be impacted in 

Section 1.1 of the DEA is simply for 

illustrative purposes and is considered 

appropriate. In addition, while a Federal 

nexus may not exist for farming 

activities, the DEA quantifies 

coextensive effects. As defined in 

Section 1.2, the DEA estimates impacts 

associated with overlapping protective 

measures of other Federal, State, and 

local laws that aid habitat conservation 

in the areas proposed for designation. 

(41) Comment: A commenter 

requested that a more equitable inputoutput model be used to evaluate the 

regional economic effects in the DEA. 

Our Response: As described in 

Section 1.1.2.2 of the DEA, it was 

assumed that development is not 

restricted by critical habitat designation, 

but that developers will instead mitigate 

their activities through mitigation fee 

payments to address Astragalus 

lentiginosus var. coachellae 

conservation concerns. Therefore, 

regional economic impacts are not 

expected as a result of A. l. var. 

coachellae conservation efforts. 

(42) Comment: A commenter 

mentioned that critical habitat for plants 

has no jurisdiction on private lands that 

lack a federal nexus and that the DEA 

does not address this issue. 

Our Response: As described in 

Section 2.2.2 of the DEA, the critical 

habitat designation for Astragalus 

lentiginosus var. coachellae or any other 

threatened or endangered species has 

the potential to impose costs on private 

individuals or groups of individuals if 

there is a connection or nexus between 

private activities and Federal actions. 

For example, if a Federal permit is 

required before developers can begin 

construction or if there is Federal 

funding for a private activity, then it is 

possible that the provisions of the Act, 

including critical habitat designation, 

may potentially restrict private actions 

if the action results in a section 7 

consultation. This analysis 

appropriately identifies and analyzes 

economic impacts on activities that may 

occur on private lands within the 

proposed critical habitat areas. 

Furthermore, the DEA is not limited to 

only those activities with a Federal 

nexus. As described in Section 1.1, the 

DEA quantifies costs associated with 

measures taken to protect the species 

and its habitat, not just section 7-related 

costs. 

(43) Comment: A commenter stated 

Section 4.3.2 of the DEA must be 

modified to clarify that benefits are 

limited to areas where Astragalus 

lentiginosus var. coachellae and fringetoed lizard are sympatric, not through 

the whole range of A. l. var. coachellae. 

Our Response: This comment clarifies 

statements in the DEA on page 46. This 

comment does not change the results of 

the report. 

Summary of Changes From the 

Proposed Rule 

In developing the final designation of 

critical habitat for Astragalus 

lentiginosus var. coachellae, we 

reviewed peer and public comments 

received on the proposed designation of 

critical habitat published on December 

14, 2004 (69 FR 74468) and draft 

economic analysis published on 

September 27, 2005 (70 FR 56434); 

conducted further evaluation of lands 

proposed as critical habitat; updated our 

mapping parcel data; and were more 

precise with our mapping. 

We modified our mapping process in 

the final rule from the proposed rule to 

remove 675 ac (272 ha) of Service’s 

Refuge lands and private lands that 

were inadvertently proposed as critical 

habitat. These lands were either already 

excluded from critical habitat under 

section 4(b)(2) of the Act or did not 

contain features essential for the 

conservation of Astragalus lentiginosus 

var. coachellae. In the proposed rule, we 

used a process that overlaid a grid on 

areas containing features essential for 

the conservation of A. l. var. coachellae 

in order to produce legal Universal 

Transverse Mercator (UTM) coordinates 

that represented the critical habitat 

boundaries. This gridding process 

extended the legal boundaries beyond 

the boundaries of the areas containing 

essential features and consequently 

included private lands that did not 

contain essential features or included 

private lands and Service Refuge lands 

that contained essential features, but 

were intended to be excluded under 

section 4(b)(2) of the Act. For the final 

designation, we have abandoned the use 

of the gridding process and have based 

74122 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

the legal coordinates precisely on the 

boundaries of the areas containing 

essential features. Based on this 

mapping modification, we removed all 

proposed private and Service Refuge 

lands (675 ac (272 ha)) from critical 

habitat. 

In addition to the non-Federal lands 

that were excluded pursuant to section 

4(b)(2) of the Act based on their 

coverage under the draft Coachella 

Valley MSHCP/NCCP, we have also 

excluded BLM lands that were proposed 

as critical habitat. BLM is an official 

cooperator with the Coachella Valley 

MSHCP/NCCP and has committed to 

manage their lands consistent with the 

MSHCP/NCCP under their California 

Desert Conservation Area Plan 

Amendment for the Coachella Valley 

that was signed in 2002 (see section 

titled Pending Coachella Valley 

Multiple Species Habitat Conservation 

Plan and Natural Community 

Conservation Plan (MSHCP/NCCP for a 

more detailed discussion). 

We have also determined that BLM 

and Service Refuge (Coachella Valley 

National Wildlife Refuge) lands within 

the Coachella Valley Preserve System do 

not meet the definition of critical habitat 

under section 3(5)(A) of the Act since 

these lands may not require special 

management considerations due to their 

inclusion and management within the 

Coachella Valley Preserve System under 

the Coachella Valley Fringe-Toed Lizard 

HCP. Both the BLM and the Service 

entered into an MOU with the Coachella 

Valley Fringe-Toed Lizard HCP in 1986 

that defined their roles and 

responsibilities for managing their lands 

within the Coachella Valley Preserve 

System. Conservation measures outlined 

in the Coachella Valley Fringe-Toed 

Lizard HCP also benefit Astragalus 

lentiginosus var. coachellae since it has 

similar habitat requirements as the 

Coachella Valley fringe-toed lizard for 

sandy soils. Based on this HCP and 

MOU, we have not included 3,527 ac 

(1,427 ha) of Service Refuge lands from 

Unit 3 and 128 ac (52 ha) of BLM lands 

from all three units (see section titled 

Relationship of Critical Habitat to 

Federal Lands within the Coachella 

Valley Fringe-Toed Lizard HCP—

Application of Section 3(5)(A) of the Act 

for a more detailed discussion). Table 1 

reflects the changes made in this final 

rule and outlines the total area 

containing habitat with features 

essential to the conservation of A. l. var. 

coachellae, areas excluded from final 

critical habitat under the pending 

Coachella Valley MSHCP/NCCP or not 

included based on the approved 

Coachella Valley Fringe-Toed Lizard 

HCP, and total area designated as final 

critical habitat. 

TABLE 1.—TOTAL AREA CONTAINING HABITAT WITH ESSENTIAL FEATURES, AREAS EXCLUDED FROM FINAL CRITICAL

HABITAT UNDER THE PENDING COACHELLA VALLEY MSHCP/NCCP, AND AREAS NOT INCLUDED AS CRITICAL HABITAT WITHIN THE COACHELLA VALLEY PRESERVE SYSTEM UNDER THE COACHELLA VALLEY FRINGE-TOED LIZARD

HCP, AND TOTAL AREA DESIGNATED AS FINAL CRITICAL HABITAT FOR ASTRAGALUS LENTIGINOSUS VAR. COACHELLAE

(AC/HA) 

Critical habitat unit 

Total area 

containing 

habitat with 

essential 

features 

Area excluded under 

pending 

Coachella 

Valley 

MSHCP/ 

NCCP 

Area not included under 

Coachella 

Valley FringeToed Lizard 

HCP 

Total area 

designated 

as final 

critical 

habitat 

1. Whitewater River System ....................................................................................... 8,210 ac .......

(3,323 ha) ....

8,188 ac .......

(3,314 ha) ....

22 ac ............

(9 ha) ...........

0 ac. 

(0 ha). 

2. Mission Creek/Morongo Wash System .................................................................. 4,699 ac .......

(1,901 ha) ....

4,607 ac .......

(1,864 ha) ....

92 ac ............

(37 ha) .........

0 ac. 

(0 ha). 

3. Thousand Palms System ....................................................................................... 4,837 ac .......

(1,958 ha) ....

1,296 ac .......

(525 ha) .......

3,541 ac .......

(1,433 ha) ....

0 ac. 

(0 ha). 

Total .................................................................................................................... 17,746 ac .....

(7,182 ha) ....

14,091 ac .....

(5,703 ha) ....

3,655 ac .......

(1,480 ha) ....

0 ac. 

(0 ha). 

In the proposed rule we requested 

comment on the potential inclusion of 

unoccupied sand source areas 

downwind and downstream of suitable 

habitat. We received feedback from 

three commenters, all of whom 

supported including these areas in the 

critical habitat designation as areas 

containing habitat with features 

essential to the conservation of the 

taxon. We acknowledge the importance 

of sand to this species in the Primary 

Constituent Elements section and have 

determined that inclusion of the sand 

sources areas in the final critical habitat 

designation is not essential to the 

conservation of the species as these 

areas are both unoccupied and 

unsuitable for Astragalus lentiginosus 

var. coachellae. Finally, the draft 

Coachella Valley MSHCP/NCCP is 

proposing to protect sand source areas 

in a way that will benefit A. l. var. 

coachellae. 

Our Primary Constituent Elements 

have been revised to reflect only 

features essential for the conservation of 

Astragalus lentiginosus var. coachellae 

on lands that are occupied by this taxon 

and on which we are designating critical 

habitat. The Primary Constituent 

Elements in the proposed rule included 

features that occurred only on lands that 

are not expected to ever be occupied by 

A. l. var. coachellae (sand source areas), 

and which we do not consider to be 

essential to the conservation of this 

species. 

We have included a discussion in the 

Section 7 Consultation section that 

explains the relationship between 

critical habitat and BLM activities that 

are covered under their California 

Desert Conservation Area Plan. 

We changed the land ownership data 

in GIS for the final rule. We determined 

that the ownership data provided by the 

CVAG is superior to the State ownership 

data that was used in the proposed rule 

because it is a region-specific dataset 

that is currently being used in land 

management planning for the Coachella 

Valley region. This changed the land 

ownership classification for areas in the 

proposed rule that were thought to be 

State Lands Commission lands. These 

lands were reclassified in the final rule 

as either private or CVWD lands under 

the CVAG’s dataset. Because of our 

section 4(b)(2) exclusion determinations 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74123 

for this designation, lands under these 

ownerships were excluded from critical 

habitat designation. 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as—(i) the specific areas 

within the geographical area occupied 

by a species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) that may require 

special management considerations or 

protection; and (ii) specific areas 

outside the geographical area occupied 

by a species at the time it is listed, upon 

a determination that such areas are 

essential for the conservation of the 

species. Conservation, as defined under 

section 3 of the Act means to use and 

the use of all methods and procedures 

which are necessary to bring any 

endangered species or threatened 

species to the point at which the 

measures provided pursuant to the Act 

are no longer necessary. Such methods 

and procedures include, but are not 

limited to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

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. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow government 

or public access to private lands. 

Section 7 is a purely protective measure 

and does not require implementation of 

restoration, recovery, or enhancement 

measures. 

To be included in a critical habitat 

designation, the habitat within the area 

occupied by the species must first have 

features that are essential to the 

conservation of the species. Critical 

habitat designations identify, to the 

extent known using the best scientific 

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)). 

Habitat occupied at the time of listing 

may be included in critical habitat only 

if the essential features thereon may 

require special management or 

protection. Thus, we do not include 

areas where existing management is 

sufficient to conserve the species. (As 

discussed below, such areas may also be 

excluded from critical habitat pursuant 

to section 4(b)(2).) Accordingly, when 

the best available scientific data do not 

demonstrate that the conservation needs 

of the species require additional areas, 

we will not designate critical habitat in 

areas outside the geographical area 

occupied by the species at the time of 

listing. An area currently occupied by 

the species but was not known to be 

occupied at the time of listing will 

likely, but not always, be essential to the 

conservation of the species and, 

therefore, typically included in the 

critical habitat designation. 

The Service’s Policy on Information 

Standards Under the Endangered 

Species Act, published in the Federal 

Register on July 1, 1994 (59 FR 34271), 

and Section 515 of the Treasury and 

General Government Appropriations 

Act for Fiscal Year 2001 (Pub. L. 106–

554; H.R. 5658) and the associated 

Information Quality Guidelines issued 

by the Service, provide criteria, 

establish procedures, and provide 

guidance to ensure that decisions made 

by the Service represent the best 

scientific data available. They require 

Service biologists to the extent 

consistent with the Act and with the use 

of the best scientific data available, to 

use primary and original sources of 

information as the basis for 

recommendations to designate critical 

habitat. When determining which areas 

are critical habitat, a primary source of 

information is generally the listing 

package for the species. Additional 

information sources include the 

recovery plan for the species, articles in 

peer-reviewed journals, conservation 

plans developed by States and counties, 

scientific status surveys and studies, 

biological assessments, or other 

unpublished materials and expert 

opinion or personal knowledge. All 

information is used in accordance with 

the provisions of Section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. Habitat 

is often dynamic, and species may move 

from one area to another over time. 

Furthermore, we recognize that 

designation of critical habitat may not 

include all of the habitat areas that may 

eventually be determined to be 

necessary for the recovery of the 

species. For these reasons, critical 

habitat designations do not signal that 

habitat outside the designation is 

unimportant or may not be required for 

recovery. 

Areas that support populations, but 

are outside the critical habitat 

designation, will continue to be subject 

to conservation actions implemented 

under section 7(a)(1) of the Act and to 

the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available information at the time of the 

action. Federally funded or permitted 

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 

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 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 MSHCP/NCCP (CVMC 2004), as 

a starting point for identification of 

areas with habitat that contain features 

essential to the conservation of this 

taxon 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 

74124 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

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). 

Finally, we used information and 

materials submitted during the public 

comment period for the proposed 

critical habitat rule. 

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 

designate as critical habitat that were 

within the geographic area occupied by 

the species at the time of listing, we are 

required to base critical habitat 

determinations on the best scientific 

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 or 

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 

essential to the conservation of 

Astragalus lentiginosus var. coachellae 

are derived from the physical and 

biological features that are essential to 

the conservation of this taxon 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 2001b). 

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 2001a). 

Astragalus lentiginosus var. 

coachellae populations in the Coachella 

Valley are strongly affiliated with active, 

stabilized, and shielded sandy 

substrates (Holland 1986, Sanders and 

Thomas Olsen Associates 1996). This 

taxon is primarily found on loose eolian 

(wind transported) and rarely on 

alluvial (water transported) sands that 

are located on dunes or flats, and along 

disturbed margins of washes (Barneby 

1964). The highest densities of A. l. var. 

coachellae have been found in locations 

containing large deposits of eolian sand, 

including Snow Creek (Sanders and 

Thomas Olsen Associates 1996), Big 

Dune, and Willow Hole areas (Bureau of 

Land Management, unpublished data 

2001b). 

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 2001b). 

Conserving a wide variety of sandy 

substrate types is important for the 

conservation of A. l. var. coachellae 

because of the dynamics of the eolian 

sand transport processes. 

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. 

Astragalus lentiginosus var. 

coachellae is 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. 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). 

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 important for allowing inflated fruit 

pods to disperse to other areas and 

promote gene flow among populations. 

Protecting these corridors is also 

important for allowing pollinators to 

reach different populations and 

presumably assist in also maintaining 

gene flow. Finally, some of the fine 

sands blowing across the corridor are 

deposited and occasionally accumulate 

and serve as ephemeral habitat. 

Primary Constituent Elements for 

Astragalus lentiginosus var. coachellae 

Based on our current knowledge of 

the life history, biology, and ecology of 

the species and the requirements of the 

habitat to sustain the essential life 

history functions of the species, we have 

determined that Astragalus lentiginosus 

var. coachellae’s primary constituent 

elements are: 

1. Active sand dunes, characterized as 

large accumulations of moving sand 

with sparse perennial shrub cover that 

are contained within one of the three 

major sand transport systems 

(Whitewater River, Mission Creek and 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74125 

Morongo Wash, and Thousand Palms 

sand transport systems), that provide 

soil conditions for the growth of 

Astragalus lentiginosus var. coachellae. 

2. Stabilized or partially stabilized 

sand dunes containing evergreen or 

deciduous shrubs, scattered low 

annuals, or perennial grasses that are 

contained within one of the three major 

sand transport systems (Whitewater 

River, Mission Creek and Morongo 

Wash, and Thousand Palms sand 

transport systems) and providing soil 

conditions for individual population 

growth of Astragalus lentiginosus var. 

coachellae. 

3. Active or stabilized sand fields 

containing smaller sand accumulations 

than dunes and are often characterized 

as hummocks forming on leeward sides 

of shrubs that are contained within one 

of the three major sand transport 

systems (Whitewater River, Mission 

Creek and Morongo Wash, and 

Thousand Palms sand transport 

systems) and providing soil conditions 

for individual growth of Astragalus 

lentiginosus var. coachellae. Stabilized 

fields are similar to active fields but 

contain sands stabilized by vegetation or 

that are armored. 

4. Shielded sand fields or dunes that 

are contained within one of the three 

major sand transport systems 

(Whitewater River, Mission Creek and 

Morongo Wash, and Thousand Palms 

sand transport systems) and providing 

soil conditions for individual growth of 

Astragalus lentiginosus var. coachellae. 

These habitat features are similar to 

active or stabilized sand fields or dunes, 

except the sand source is no longer able 

to replenish these areas with new sand 

due to anthropogenic factors. 

5. Active washes containing fluvial 

sand deposits that are contained within 

one of the three major sand transport 

systems (Whitewater River, Mission 

Creek and Morongo Wash, and 

Thousand Palms sand transport 

systems) and providing soil conditions 

for individual growth of Astragalus 

lentiginosus var. coachellae. 

6. Ephemeral non-sandy areas within 

the sand transport system where mass 

movements of sand by eolian processes 

can occur and that are contained within 

one of the three major sand transport 

systems (Whitewater River, Mission 

Creek and Morongo Wash, and 

Thousand Palms sand transport 

systems) and providing soil conditions 

for individual growth of Astragalus 

lentiginosus var. coachellae. 

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 and 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 areas as critical 

habitat. 

Our proposed rule included a section 

containing Unoccupied Areas Identified 

for Possible Inclusion, for which we 

requested comment regarding whether 

all, only a portion, or none of these 

areas should be included in the 

designation. Astragalus lentiginosus var. 

coachellae’s PCEs are dependent on 

sand being continually replenished from 

sand source areas upwind and upstream 

of where it occupies. Those areas 

identified for possible inclusion 

included sand source areas (mountain 

drainages) for each Unit that function to 

provide fluvial sediment containing 

sands to fluvial depositional areas 

where wind transports the sands to 

areas that support the taxon’s PCEs. 

Areas identified for specific review 

included mountain drainages in the San 

Bernardino and San Jacinto mountains 

for Unit 1, mountain drainages in the 

eastern San Bernardino and Little San 

Bernardino mountains for Unit 2, and 

mountain drainages in the Indio Hills 

west of Thousand Palms Canyon for 

Unit 3. For a more detailed discussion 

on the function of these sand source 

areas see Areas Containing the Fluvial 

and Eolian Processes That Generate 

Suitable Habitat in the proposed 

designation of critical habitat for A. l. 

var. coachellae (69 FR 74468). We also 

requested comment on whether the draft 

Coachella Valley MSHCP/NCCP would 

provide for sufficient sand transport to 

maintain A. l. var. coachellae, and 

whether there are threats to sand source 

areas that would be addressed by 

designating them as critical habitat. 

Although peer review and public 

comment were generally favorable 

towards including the unoccupied sand 

source areas in the final critical habitat 

designation, we are only designating 

areas actually occupied at the time of 

listing in 1998. We have determined 

that the presence of active sand dunes 

(PCE 1) is an essential feature, and we 

have designated them as a PCE. We 

believe that the PCEs adequately 

describe the essential function of the 

seed source areas in occupied areas. 

Further, we believe the draft Coachella 

Valley MSHCP/NCCP will adequately 

address the issue of protecting the 

function of these sand source areas so 

that they continue to replenish sands to 

protected sandy habitat areas in the 

Coachella Valley. 

Criteria Used To Identify Critical 

Habitat 

We are designating critical habitat on 

lands that we have determined were 

occupied at the time of listing, are 

currently known to be occupied, contain 

the primary constituent elements 

essential for the conservation of 

Astragalus lentiginosus var. coachellae, 

and may be in need of special 

management considerations or 

protection 

We reevaluated the proposed 

designations based on public comment, 

peer review of the proposed rule, the 

economic analysis of the proposed rule, 

the public comments on that analysis, 

and other available information, to 

ensure that the designation accurately 

reflects habitat with the PCEs that is 

essential to the conservation of 

Astragalus lentiginosus var. coachellae. 

All areas identified in the model are 

within the historical and current ranges 

of A. l. var. coachellae and contain the 

PCEs described above. Rather than 

designate every area containing PCEs, 

we designated only those areas which 

available evidence suggests those areas 

support the numbers and distribution of 

A. l. var. coachellae conservation. Areas 

for which the evidence available at this 

time was less certain were not included 

in this designation, although we believe 

these areas to be important to the 

species and may include them in future 

recovery plans. We designated critical 

habitat for A. l. var. coachellae in areas 

that are necessary to advance at least 

one of the following conservation 

criteria: 

(1) The conservation of areas 

representative of the geographic 

distribution of the species since species 

that are protected across their ranges 

have lower chances of extinction (Soule 

and Simberloff 1986; Pavlik 1996; Noss 

et al. 1999); 

(2) The conservation of areas 

representative of the ecological 

distribution of the species. Astragalus 

lentiginosus var. coachellae is 

associated with various sandy soil types 

and vegetation communities. 

Maintaining the full range of varying 

habitat types and characteristics for a 

species is necessary because it would 

include the full extent of the physical 

and biological conditions necessary for 

the species (Noss et al. 2002). 

74126 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

(3) The conservation of areas 

necessary to allow movement of pollen 

and seeds between areas representative 

of the geographic and ecological 

distribution of Astragalus lentiginosus 

var. coachellae. 

(4) The conservation of areas that still 

function within one of three major sand 

transport systems within the geographic 

range of this taxon in the northern 

Coachella Valley. These three systems 

named for the purposes of this rule are 

the Whitewater River, Mission Creek/ 

Morongo Wash, and Thousand Palms 

sand transport systems. 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. 

In cases where more occupied areas 

were present than were needed for the 

conservation of the geographic or 

ecological distribution of the species, 

we gave priority to areas which were 

would be receiving protection under the 

draft Coachella Valley MSHCP/NCCP. 

Astragalus lentiginosus var. 

coachellae is one of the species 

proposed for coverage by the proposed 

Coachella Valley MSHCP/NCCP. 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/NCCP on A. l. 

var. coachellae (Coachella Valley 

Mountain Conservancy (CVMC) 2004). 

We used this habitat model to assist us 

in identifying specific areas to designate 

as critical habitat for the A. l. var. 

coachellae. The model was developed 

with occurrence data for A. l. var. 

coachellae (Bureau of Land 

Management, unpublished data 2001b). 

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. 

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 areas we determined contain 

essential features for the conservation of 

this taxon include a mosaic of these 

habitat types, as well as intervening 

areas of ephemeral habitat to allow for 

the transport of wind-dispersed seed 

pods and eolian sands between 

locations containing large areas of 

habitat. 

Habitat with essential features for the 

conservation of Astragalus lentiginosus 

var. coachellae was mapped using GIS 

and refined using topographical and 

aerial map coverages. We excluded 

areas containing features essential for 

the conservation of this taxon that were 

covered under legally operative or 

nearly completed habitat conservation 

plans (HCPs) pursuant to section 4(b)(2) 

of the Act. Section 10(a)(1)(B) of the Act 

authorizes us to issue permits for the 

take of listed animal species incidental 

to otherwise lawful activities. 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 requested incidental take. 

We encourage HCP applicants to also 

incorporate measures to provide for the 

conservation of listed plant species. We 

often exclude non-Federal public lands 

and private lands that are covered by an 

existing operative HCP and executed 

implementation agreement (IA) under 

section 10(a)(1)(B) of the Act from 

designated critical habitat because the 

benefits of exclusion outweigh the 

benefits of inclusion as discussed in 

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

In the final rule, we described the 

legal Universal Transverse Mercator 

(UTM) coordinates, North American 

Datum 27, of the critical habitat 

boundaries by recording coordinates 

along actual boundaries of the areas 

containing features essential to the 

conservation of Astragalus lentiginosus 

var. coachellae. This is in contrast to the 

proposed critical habitat rule where we 

overlaid a 100-meter by 100-meter grid 

on areas containing essential features to 

determine the critical habitat 

boundaries that were described as the 

legal UTM coordinates. The 100-meter 

gridding process in the proposed rule 

was used to provide a more easily 

describable boundary for habitat 

boundaries that are often non-linear. 

However, we abandoned using this 

process because it created confusion by 

inadvertently capturing areas outside of 

areas containing features essential to the 

conservation of this taxon or areas that 

were originally excluded pursuant to 

section 4(b)(2) of the Act as described 

above. 

When determining critical habitat 

boundaries, we made every effort to 

avoid including within the boundaries 

of the map contained within this final 

rule developed areas such as buildings, 

paved areas, and other structures that 

lack primary constituent elements for 

Astragalus lentiginosus var. coachellae. 

The scale of the maps prepared under 

the parameters for publication within 

the Code of Federal Regulations may not 

reflect the exclusion of such developed 

areas. Any such structures and the land 

under them inadvertently left inside 

critical habitat boundaries shown on the 

maps of this final rule have been 

excluded by text in the proposed rule 

and are not designated as critical 

habitat. Therefore, Federal actions 

limited to these areas would not trigger 

section 7 consultation, unless they affect 

the species and/or primary constituent 

elements in adjacent critical habitat. 

Special Management Considerations or 

Protection 

When designating critical habitat, we 

assess whether the primary constituent 

elements contained with the identified 

habitat may require special management 

considerations or protection. 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 this taxon 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 Astragalus 

lentiginosus var. coachellae’s PCEs 

include direct and indirect effects of 

residential and commercial 

development and exotic plant species. 

Areas containing features essential to 

the conservation of Astragalus 

lentiginosus var. coachellae may require 

special management due to threats 

posed by urban development that are 

not designed to avoid direct destruction 

of A. l. var. coachellae’s PCEs and that 

obstruct eolian sand transport to areas 

that contain the PCEs. On private lands, 

urban and golf course developments 

destroy plants and occupied habitat 

directly. Large housing and golf course 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74127 

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 

replenishment of loose unconsolidated 

sands for their long-term existence, may 

be degraded by the alteration, blockage, 

and reduction in their supply of sand. 

In addition, some areas may require 

special management due to other types 

of development that are also not 

designed to avoid direct impacts to 

Astragalus lentiginosus var. coachellae’s 

PCEs and that obstruct eolian sand 

transport to areas that contain the PCEs. 

On public lands, the construction and 

operation of sand and gravel mining, 

dams, and percolation ponds in western 

Coachella Valley 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 BLM areas resulted in 

the direct loss of plants and occupied 

habitat and may have altered the 

transport of sand to downstream 

occupied habitats. Astragalus 

lentiginosus var. coachellae is 

threatened by the lack of minimization 

measures in project designs for 

operation and maintenance of these 

facilities that reduce both direct impacts 

to A. l. var. coachellae and its habitat 

and indirect impacts to sand 

transportation downstream and 

downwind from these facilities to 

occupied habitats. Finally, some areas 

may require special management due to 

other threats posed by invasive exotic 

plants to Astragalus lentiginosus var. 

coachellae’s PCEs. On both private and 

public lands in the Coachella Valley 

region, the major invasive exotic plant 

species include Saharan mustard 

(Brassica tournefortii), Mediterranean 

grass (Schismus barbatus), and Russian 

thistle (Salsola tragus). The invasion of 

these exotic species is likely having 

indirect effects on Astragalus 

lentiginosus var. coachellae’s PCEs by 

reducing wind velocity near ground 

level and stabilizing loose sediments 

that are a major component of the PCEs. 

The reduction in sand movement 

reduces the quality of the PCEs (loosesandy habitat) that support A. l. var. 

coachellae populations and obstructs 

eolian sand transport to downwind 

areas containing PCEs. Further, the 

reduction in sand movement may 

reduce the amount of scarification that 

is often necessary to germinate A. l. var. 

coachellae’s seeds. 

Final Critical Habitat Designation 

We determined that approximately 

17,746 ac (7,182 ha) of habitat that was 

known to be occupied at the time of 

listing and is known to be currently 

occupied and contains features essential 

to the conservation of Astragalus 

lentiginosus var. coachellae exist in 

Riverside County, California (Table 1). 

All 17,746 ac (7,182 ha) are within areas 

that are conserved or will soon be 

conserved under HCPs, including 3,655 

ac (1,479 ha) that is already conserved 

within the Coachella Valley Preserve 

System under the approved Coachella 

Valley Fringe-Toed Lizard HCP and 

14,091 ac (5,703 ha) that will very likely 

be conserved under the Coachella 

Valley MSHCP/NCCP. On the basis of 

our evaluation of the conservation 

measures afforded to A. l. var. 

coachellae under the Coachella Valley 

Fringe-Toed Lizard HCP, we have 

concluded that the Federal lands within 

the Coachella Valley Preserve System 

that contain features essential to 

conservation of this taxon do not meet 

the definition of critical habitat under 

section 3(5)(A) of the Act because they 

may not require special management 

considerations. In addition, on the basis 

of our evaluation of the conservation 

measures that will very likely be 

afforded to A. l. var. coachellae under 

the draft Coachella Valley MSHCP/ 

NCCP, we have concluded that the 

benefit of excluding the lands covered 

by this MSHCP/NCCP outweighs the 

benefit of including them as critical 

habitat (see section titled Application of 

Section 3(5)(A) and Exclusions Under 

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

detailed discussion), and therefore are 

excluding these lands from critical 

habitat designation pursuant to section 

4(b)(2) of the Act. As a result, we are not 

designating any areas containing 

features essential to the conservation of 

A. l. var. coachellae as critical habitat in 

this final rule. 

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. Such 

alterations include, but are not limited 

to: ‘‘Alterations adversely modifying 

any of those physical or biological 

features that were the basis for 

determining the habitat to be critical.’’

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 may 

include reasonable and prudent 

alternatives or reasonable and prudent 

measures to assist the agency in 

eliminating conflicts that may be caused 

by the proposed action. 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)). Until such time 

as a proposed designation is finalized, 

any reasonable and prudent alternatives 

or reasonable and prudent measures 

included 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 their 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 

74128 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

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 

are likely to adversely modify or destroy 

proposed critical habitat. 

Federal activities that may affect the 

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 U.S. Army Corps of Engineers 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 adversely modify such habitat, or 

that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat may 

also jeopardize the continued existence 

of the Astragalus lentiginosus var. 

coachellae. Federal activities that, when 

carried out, may adversely affect critical 

habitat for the A. l. var. coachellae 

include, but are not limited to: 

(1) Activities that inhibit downstream 

sediment transport and the 

replenishment of sands to areas of 

occupied habitat, and thus degrading 

the PCEs, such as active sand dunes or 

fields, in areas containing features 

essential for the conservation of 

Astragalus lentiginosus var. coachellae. 

An example of such activity includes 

sand and gravel mining within stream 

channels; 

(2) Activities that block downwind 

transport of eolian sands to areas of 

suitable habitat, and thus degrading the 

PCEs, such as active sand dunes or 

fields, in areas containing features 

essential for the conservation of 

Astragalus lentiginosus var. coachellae. 

Examples of such activities include any 

type of development or the planting of 

tamarisk rows that obstruct near surface 

winds carrying eolian sands; 

(3) Activities that foster invasion of 

exotic weeds in areas containing 

features essential to the conservation of 

Astragalus lentiginosus var. coachellae 

(e.g., roads, landscaping, soil 

disturbance) that may outcompete A. l. 

var. coachellae for valuable resources 

and may stabilize sands in upwind areas 

and prevent them from being 

transported to areas containing features 

essential for the conservation of A. l. 

var. coachellae. 

Both designated critical habitat Units 

are known to be occupied by Astragalus 

lentiginosus var. coachellae. 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. 

On December 24, 2002, we issued a 

Biological Opinion on the BLM’s 

California Desert Conservation Area 

Plan Amendment (CDCAPA) for the 

Coachella Valley . At issue was the 

proposed amendment to the 1980 BLM 

California Desert Conservation Area 

Plan (CDCA Plan). 

Congress designated the CDCA with 

Section 601 of the Federal Land Policy 

and Management Act (FLPMA) of 1976. 

To provide for management of 

recreational use, as well as to resolve 

other resource and public land use 

conflicts, FLPMA also directed the 

Secretary of the Interior to ‘‘prepare and 

implement a comprehensive, long-range 

plan for management, use, development, 

and protection of the public lands 

within the CDCA.’’ The CDCA Plan was 

signed in January 1980, and this 

document now serves as the primary 

document that describes the basic 

management principles that the BLM 

uses for managing their portion of the 

CDCA. The CDCA Plan has undergone 

numerous minor amendments over the 

past 25 years, including major 

amendments to divide it into five ecoregions/planning areas. The Coachella 

Valley is one of five bioregional 

planning areas under the CDCA Plan. 

Amendments to this plan for each 

bioregion address unique biological 

resource issues that are applicable to a 

given area, and prescribe management 

actions that address local land use 

needs. To more effectively and 

consistently manage their portion of the 

public lands within the CDCA, the BLM 

developed a land zoning system that 

provided specific land management 

prescriptions. Under this zoning 

strategy, different areas are assigned to 

one of four multiple-use classes (MUC). 

The MUC assignment is based on the 

considered sensitivity of resources and 

kinds of uses occurring in each 

geographic area. 

Under their CDCAPA for the 

Coachella Valley, the BLM proposes 

seven interim measures to protect 

federally listed species, including 

Astragalus lentiginosus var. coachellae. 

These interim measures were developed 

to conserve species during development 

of the Coachella Valley MSHCP/NCCP. 

These interim measures that are relevant 

to A. l. var. coachellae include: (1) The 

BLM will only consider land exchanges 

or disposals involving threatened or 

endangered species habitat if they 

benefit the species; and (2) the BLM will 

not allow any new activities that may 

adversely affect A. l. var. coachellae on 

BLM lands within the conservation 

areas of the draft Coachella Valley 

MSHCP/NCCP. In addition, the BLM 

will manage for maintenance of 

hydrologic regime and sand sources for 

all known populations and habitat of A. 

l. var. coachellae on BLM lands. 

Overall, the CDCAPA for the 

Coachella Valley bioregion provided 

general guidance that can either benefit 

or adversely affect the conservation of 

federally listed species, including 

Astragalus lentiginosus var. coachellae, 

depending on location and project type 

relative to their Multiple-Use Class 

activity guidelines. However, future 

activities and projects will still need to 

receive site-specific environmental 

review and section 7 consultation. 

Application of Section 3(5)(A) and 

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

Act 

Section 3(5)(A) of the Act defines 

critical habitat as the specific areas 

within the geographic area occupied by 

the species on which are found those 

physical and biological features (i) 

essential to the conservation of the 

species and (ii) which may require 

special management considerations or 

protection. Therefore, areas within the 

geographic area occupied by the species 

that do not contain the features essential 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74129 

for the conservation of the species are 

not, by definition, critical habitat. 

Similarly, areas within the geographic 

area occupied by the species that do not 

require special management also are 

not, by definition, critical habitat. To 

determine whether an area requires 

special management, we first determine 

if the essential features located there 

generally require special management to 

address applicable threats. If those 

features do not require special 

management, or if they do in general but 

not for the particular area in question 

because of the existence of an adequate 

management plan or for some other 

reason, then the area does not require 

special management. 

We consider a current plan to provide 

adequate management or protection if it 

meets three criteria: (1) The plan is 

complete and provides a conservation 

benefit to the species (i.e., the plan must 

maintain or provide for an increase in 

the species’ population, or the 

enhancement or restoration of its habitat 

within the area covered by the plan); (2) 

the plan provides assurances that the 

conservation management strategies and 

actions will be implemented (i.e., those 

responsible for implementing the plan 

are capable of accomplishing the 

objectives, and have an implementation 

schedule or adequate funding for 

implementing the management plan); 

and (3) the plan provides assurances 

that the conservation strategies and 

measures will be effective (i.e., it 

identifies biological goals, has 

provisions for reporting progress, and is 

of a duration sufficient to implement the 

plan and achieve the plan’s goals and 

objectives). 

Further, 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 both provisions outlined in sections 

3(5)(A) and 4(b)(2) of the Act to evaluate 

those specific areas that we proposed for 

designation as critical habitat. Lands we 

have found that do not meet the 

definition of critical habitat under 

section 3(5)(A), and lands 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. 

Table 1 contains a summary of areas 

containing features essential to the 

conservation of Astragalus lentiginosus 

var. coachellae that do not meet the 

definition of critical habitat as well as 

areas containing essential features that 

are being excluded from critical habitat 

in this rule. 

Relationship of Critical Habitat to 

Federal Lands Within the Coachella 

Valley Fringe-Toed Lizard HCP— 

Application of Section 3(5)(A) of the 

Act 

We are not including areas containing 

features essential to the conservation of 

Astragalus lentiginosus var. coachellae 

in portions of all three units that are 

contained within Federal lands (BLM 

and Service Refuge lands) within the 

boundaries of the Coachella Valley 

Preserve System in the Coachella Valley 

fringe-toed lizard HCP under section 

3(5)(A) of the Act. On April 21, 1986, 

the Service approved and issued a 

Section 10(a)(1)(B) incidental take 

permit under the Act for the Coachella 

Valley fringe-toed lizard under the 

Coachella Valley Fringe-Toed Lizard 

HCP and IA. The HCP called for the 

establishment of three separate 

preserves for the conservation of the 

Coachella Valley fringe-toed lizard: (1) 

The Coachella Valley Preserve; (2) the 

Willow Hole-Edom Hill Preserve; and 

(3) the Indian Avenue Preserve within 

the Whitewater River floodplain, which 

are collectively known as the Coachella 

Valley Preserve System. Acquisition and 

maintenance of the Coachella Valley 

Preserve System was the basis for the 

issuance of the Service’s section 10(a) 

permit to allow the incidental take of 

the Coachella Valley fringe-toed lizard 

on private lands. The Coachella Valley 

Preserve System is managed 

cooperatively by the major landowners 

within each Preserve, including the 

BLM, the Service, the CDFG, and The 

Nature Conservancy. These major 

landowners signed an IA in 1986 that 

defined their roles and responsibilities 

in the management of the Coachella 

Valley Preserve System, which was later 

amended in 1991 to include the CDPR 

as a major landowner. Another 

amendment on August 3, 1999 

transferred management responsibilities 

by the TNC to the Center for Natural 

Lands Management (CNLM). The 

Coachella Valley Preserve System was 

designed to capture habitats closely 

associated with the Coachella Valley 

fringe-toed lizard, including primarily 

loose, unstabilized, windblown sand. 

These habitats encompass several of the 

PCEs important for the conservation of 

Astragalus lentiginosus var. coachellae, 

including active sand dunes, stabilized 

or partially stabilized sand dunes, active 

or stabilized sand fields, and shielded 

sand fields that are contained within the 

Thousand Palms sand transport system. 

Even though Astragalus lentiginosus 

var. coachellae is not a covered species 

under the Coachella Valley Fringe-Toed 

Lizard HCP, it receives conservation 

benefits from the management of the 

Coachella Valley Preserve System due to 

the protections afforded to the habitats 

associated with the Coachella Valley 

fringe-toed lizard that are also 

associated with Astragalus lentiginosus 

var. coachellae. In May 1995, the BLM 

prepared the Coachella Valley Preserve 

System Management Plan and Decision 

Record (CVPS Management Plan) that 

provided guidance for managing the 

Coachella Valley Preserve System. The 

proposed CVPS Management Plan was 

available for public review in October 

1994. The CVPS Management Plan 

discussed management actions that 

were designed to conserve other sanddependent sensitive species, including 

Astragalus lentiginosus var. coachellae 

(which was a Federal candidate species 

at the time). These management actions 

included, acquisition of suitable habitat 

for the Coachella Valley fringe-toed 

lizard, law enforcement, install and 

maintain boundary fencing and signs, 

research effective methods for removing 

exotic invasive weeds, such as Russian 

thistle (Salsola tragus) and mustard 

(Brassica tournefortii), and research 

techniques for enhancing sand 

deposition into the preserves. 

In order for the Secretary to determine 

that an area is adequately managed and 

does not require special management, 

the Secretary must evaluate existing 

management and find that it provides 

(1) a conservation benefit to the species; 

(2) reasonable assurances for 

implementation; and (3) reasonable 

assurances that conservation efforts will 

be effective. The Secretary has reviewed 

the management plan and actions for 

the Coachella Valley Preserve System 

and has determined that the Preserve 

System is adequately managed for 

Astragalus lentiginosus var. coachellae, 

and therefore does not need special 

management. Therefore, all areas within 

BLM and Service Refuge lands 

74130 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

containing features essential for the 

conservation of A. l. var. coachellae 

within the boundaries of the Coachella 

Valley Preserve System are not included 

in this final critical habitat designation 

pursuant to section 3(5)(A) of the Act. 

Finally, rather than not including the 

other non-Federal landowners within 

the Coachella Valley Preserve System in 

critical habitat, these lands are excluded 

from critical habitat pursuant to section 

4(b)(2) of the Act because of their intent 

to be signatories to the draft Coachella 

Valley MSHCP/NCCP. 

Relationship of Critical Habitat to 

Pending Habitat Conservation Plans—

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

Act 

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. 

Although take of plant species is not 

prohibited under the Act, and therefore 

cannot be authorized under an 

incidental take permit, plant species are 

included on the permit in recognition of 

the conservation benefits provided to 

them under the HCP and for the 

purposes of the No Surprises 

assurances. 

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. 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 federally 

listed 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 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. 

Pending Coachella Valley Multiple 

Species Habitat Conservation Plan and 

Natural Community Conservation Plan 

(MSHCP/NCCP) 

We re-affirmed our December 14, 

2004, proposed rule exclusion of nonFederal lands containing features 

essential for the conservation of 

Astragalus lentiginosus var. coachellae 

within the draft Coachella Valley 

MSHCP/NCCP’s plan area under section 

4(b)(2) of the Act (69 FR 74468). In 

addition, we have determined that BLM 

lands within the draft Coachella Valley 

MSHCP/NCCP that are outside of the 

Coachella Valley Preserve System 

warrant exclusion from the critical 

habitat designation due to their official 

participation in the draft Coachella 

Valley MSHCP/NCCP planning process 

and commitment under their CDCAPA 

to manage their lands consistent with 

the Coachella Valley MSHCP/NNCP 

once it is completed. 

The draft Coachella Valley MSHCP/ 

NCCP has been in development from the 

mid-1990s to present. Since 1997, the 

planning process has proceeded under 

the auspices of a Memorandum of 

Understanding governing the 

preparation of the MSHCP/NCCP 

entered into by the following entities: 

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; the Service; 

California Department of Fish and Game 

(CDFG); BLM; U.S. Forest Service; and 

the National Park Service. Later, the 

Caltrans, CVWD, 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 

(CDPR), and Coachella Valley 

Mountains Conservancy also joined in 

preparation of the Plan. The parties later 

amended the Planning Agreement to 

also address the requirements of the 

NCCP Act and prepare a NCCP pursuant 

to California Fish and Game Code 

Section 2810. As stated in their 

CDCAPA for the Coachella Valley, BLM 

has committed 95% of their public land 

base within the conservation areas of 

the MSHCP/NCCP to be managed 

consistent with the MSHCP/NCCP. The 

MSHCP/NCCP area proposes to 

encompass approximately 1,131,000 ac 

(457,700 ha) in Riverside County. The 

MSHCP/NCCP is proposing to provide 

747,000 ac (302,300 ha) of conservation 

areas that will provide conservation 

benefits for 52 federally listed and 

sensitive species, including A. l. var. 

coachellae, over the life of the permit 

(75 years). The Permittees’ funding 

program proposes funding from a 

variety of potential sources, including, 

but not limited to: (1) Local 

development mitigation fees; (2) fees on 

the importation of waste into landfills 

and transfer stations in Riverside 

County; (3) transportation project 

mitigation; (4) regional infrastructure 

project mitigation; and (5) Eagle 

Mountain Landfill Environmental 

Mitigation Trust Fund. CVAG has 

demonstrated a sustained commitment 

to develop the MSHCP/NCCP 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/NCCP. 

All areas containing features essential 

for the conservation of Astragalus 

lentiginosus var. coachellae are 

contained within the proposed preferred 

alternative reserve design of the draft 

Coachella Valley MSHCP/NCCP. CVAG 

estimates there are 36,398 ac (14,730 ha) 

of modeled habitat for A. l. var. 

coachellae habitat within the draft 

Coachella Valley MSHCP/NCCP plan 

area. The draft MSHCP/NCCP proposes 

to conserve 19,321 ac (7,819 ha) of 

modeled A. l. var. coachellae habitat in 

their Conservation Areas that includes 

large core habitat areas 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 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74131 

Conservation Area; and Thousand 

Palms Conservation Area. Other goals 

include: (1) Protecting other important 

conservation areas to allow for 

population fluctuation and promote 

genetic diversity; (2) protecting 

necessary ecological processes, 

including the sand transport systems, 

that will be beneficial in maintaining 

the PCEs in the areas containing features 

essential for the conservation of A. l. 

var. coachellae; (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. 

CVAG carefully considered all 

available and occupied habitats for 

Astragalus lentiginosus var. coachellae 

in developing their conservation 

strategy for this species. CVAG 

concluded that the habitats within the 

proposed Conservation Areas would 

provide long-term protection for selfsustaining populations of this taxon 

because of the following factors: (1) 

Conserved habitat areas are large 

enough to increase the likelihood for 

maintaining 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 

necessary ecological processes (such as 

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). The 

Service evaluated the Conservation 

Areas for A. l. var. coachellae, and based 

on our analysis and the best scientific 

data available, recognized that the 

Conservation Areas also contained the 

physical and biological features 

essential to the conservation of the 

species. 

In light of the Service’s confidence 

that CVAG will reach a successful 

conclusion to its MSHCP/NCCP 

development process and successfully 

conserve habitat for Astragalus 

lentiginosus var. coachellae, we have 

identified and excluded under section 

4(b)(2) of the Act all lands (14,091 ac 

(5,703 ha)) containing features essential 

for the conservation of A. l. var. 

coachellae within the Coachella Valley 

MSHCP/NCCP plan area, including nonFederal lands covered by the MSHCP/ 

NCCP and Federal lands managed 

consistent with the MSHCP/NCCP. We 

believe that CVAG has made significant 

progress in the development of its 

MSHCP/NCCP to meet the requirements 

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

Act. 

(1) Benefits of Inclusion 

Overall, we believe that there is 

minimal benefit from designating 

critical habitat for Astragalus 

lentiginosus var. coachellae within the 

draft Coachella Valley MSHCP/NCCP 

because, as explained above, these lands 

are being proposed to be managed for 

the conservation of this taxon. 

A benefit of including an area within 

a critical habitat designation is the 

protection provided by section 7(a)(2) of 

the Act that directs Federal agencies to 

ensure that their actions do not result in 

the destruction or adverse modification 

of critical habitat. The designation of 

critical habitat may provide a different 

level of protection under section 7(a)(2) 

of the Act for Astragalus lentiginosus 

var. coachellae that is separate from the 

obligation of a Federal agency to ensure 

that their actions are not likely to 

jeopardize the continued existence of 

the endangered species. Under the 

Gifford Pinchot decision, critical habitat 

designations may provide greater 

benefits to the recovery of a species than 

was previously believed, but it is not 

possible to quantify this benefit at 

present. However, the protection 

provided is still a limitation on the 

harm that occurs as opposed to a 

requirement to provide a conservation 

benefit. We are in the final stages of 

completing a section 7 consultation on 

the issuance of the section 10(a)(1)(B) 

permit for the Coachella Valley MSHCP/ 

NCCP for which A. l. var. coachellae is 

a covered species. The section 

10(a)(1)(B) permit includes plants in 

recognition of the conservation value of 

the HCP and to provide ‘‘No Surprises’’

to Permittees, even though the take 

prohibition does not apply to plants. 

If designated, primary constituent 

elements in this area would be protected 

from destruction or adverse 

modification by Federal actions using a 

conservation standard based on the 

Ninth Circuit Court’s decision in Gifford 

Pinchot. This requirement would be in 

addition to the requirement that 

proposed Federal actions avoid likely 

jeopardy to the species’ continued 

existence. However, since all areas 

containing features essential for the 

conservation of the Astragalus 

lentiginosus var. coachellae are 

occupied, consultation for activities 

which may adversely affect the species 

would be required, even without the 

critical habitat designation. 

Another potential benefit of 

designation would be to signal the 

importance of these lands to the 

conservation of Astragalus lentiginosus 

var. coachellae to Federal agencies and 

to the public. In Sierra Club v. Fish and 

Wildlife Service, 245 F.3d 434 (5th Cir. 

2001), the Fifth Circuit Court of Appeals 

stated that the identification of habitat 

containing the features essential to the 

conservation of the species can provide 

informational benefits to the public, 

State and local governments, scientific 

organizations, and Federal agencies. The 

court also noted that heightened public 

awareness of the plight of listed species 

and their habitats may facilitate 

conservation efforts. The inclusion of an 

area as critical habitat may focus and 

contribute to conservation efforts by 

other parties by clearly delineating areas 

of high conservation values for certain 

species. However, we believe that this 

educational benefit has largely been 

achieved for A. l. var. coachellae. The 

public outreach and environmental 

impact reviews required under the 

National Environmental Policy Act for 

the draft Coachella Valley MSHCP/ 

NCCP provided significant 

opportunities for public education 

regarding the conservation of the areas 

occupied by A. l. var. coachellae. There 

would be little additional informational 

benefit gained from including these 

lands as critical habitat because of the 

level of information that has been, and 

continues to be, made available to the 

public as part of the regional planning 

effort. Additionally, we believe the 

value of the Conservation Areas to 

provide protection and enhancement of 

habitat for Astragalus lentiginosus var. 

coachellae within the draft Coachella 

Valley MSHCP/NCCP is well 

established among State and local 

governments, and Federal agencies even 

without the designation of critical 

habitat. 

The inclusion of the identified 14,091 

ac (5,703 ha) of land as critical habitat 

would provide some additional Federal 

regulatory benefits for the species 

consistent with the conservation 

standard based on the Ninth Circuit 

Court’s decision in Gifford Pinchot. A 

benefit of inclusion would be the 

requirement of a Federal agency to 

ensure that their actions on these nonFederal lands do not likely result in 

jeopardizing the continued existence of 

the species or result in the destruction 

or adverse modification of critical 

habitat. This additional analysis to 

determine destruction or adverse 

modification of critical habitat is likely 

to be small because the lands are not 

under Federal ownership and any 

Federal agency proposing a Federal 

action on the 11,877 ac (4,807 ha) of 

non-Federal lands would likely consider 

74132 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

the conservation value of these lands as 

identified in the draft Coachella Valley 

MSHCP/NCCP and take the necessary 

steps to avoid jeopardy or the 

destruction or adverse modification of 

critical habitat. 

As discussed below, however, we 

believe that designating any lands 

within the Coachella Valley MSHCP/ 

NCCP as critical habitat would provide 

little additional educational and Federal 

regulatory benefits for the species. 

Because the excluded areas are 

occupied by the species, there must be 

consultation with the Service over any 

action which may result in adverse 

effects to these populations on Federal 

lands or on lands with a Federal nexus. 

The additional educational benefits that 

might arise from critical habitat 

designation have been largely 

accomplished through the public review 

and comment of the environmental 

impact documents which accompanied 

the development of the Coachella Valley 

MSHCP/NCCP. 

For 30 years prior to the Ninth Circuit 

Court’s decision in Gifford Pinchot, the 

Fish and Wildlife Service equated the 

jeopardy standard with the standard for 

destruction or adverse modification of 

critical habitat. However, in Gifford 

Pinchot the court noted the government, 

by simply considering the action’s 

survival consequences, was reading the 

concept of recovery out of the 

regulation. The court, relying on the 

CFR definition of adverse modification, 

required the Service to determine 

whether recovery was adversely 

affected. The Gifford Pinchot decision 

arguably made it easier to reach an 

‘‘adverse modification’’ finding by 

reducing the harm, affecting recovery, 

rather than the survival of the species. 

However, there is an important 

distinction: Section 7(a)(2) limits 

adverse effects to the species and its 

designated critical habitat through 

either a jeopardy or destruction or 

adverse modification analyses. It does 

not require positive improvements or 

enhancement of the species status. 

Thus, any management plan which 

considers enhancement or recovery as 

the management standard will almost 

always provide more benefit than the 

critical habitat designation. This is 

particularly true for management plans 

that include plants on non-Federal 

lands because plants do not receive 

protection stemming from the take 

prohibitions under the Act on nonFederal lands. 

(2) Benefits of Exclusion 

As mentioned above, the draft 

Coachella Valley MSHCP/NCCP 

proposes to provide for the conservation 

of the PCEs for Astragalus lentiginosus 

var. coachellae by: (1) Protecting 

important ecological processes that 

maintain the PCEs for A. l. var. 

coachellae; (2) maintaining biological 

corridors and linkages among all 

conserved populations to the maximum 

extent feasible; and (3) ensure 

conservation of habitat quality through 

biological monitoring and adaptive 

management actions, such as controlling 

exotic invasive weeds that may degrade 

the PCEs. The draft Coachella Valley 

MSHCP/NCCP therefore proposes to 

provide for the protection of PCEs, and 

address special management needs. 

Designation of critical habitat would 

therefore not provide as great a benefit 

to the species as the positive 

management measures in the plan. 

The benefit of excluding lands within 

nearly completed HCPs from critical 

habitat designation includes relieving 

landowners, communities, and counties 

of any additional regulatory burden that 

might be imposed by a critical habitat 

designation consistent with the 

conservation standard based on the 

Ninth Circuit Court’s decision in Gifford 

Pinchot. Many HCPs, particularly large 

regional HCPs take many years to 

develop and, upon completion, become 

regional conservation plans that are 

consistent with the recovery objectives 

for listed species that are covered within 

the plan area. Additionally, many of 

these HCPs provide conservation 

benefits to unlisted, sensitive species 

and federally listed plants that do not 

receive protections on non-Federal 

lands not subject to a Federal nexus. 

Imposing an additional regulatory 

review after an HCP is nearly completed 

solely as a result of the designation of 

critical habitat may undermine 

conservation efforts and partnerships in 

many areas. In fact, it could result in the 

loss of species’ benefits if participants 

abandon the voluntary HCP process 

because the critical habitat designation 

may result in additional regulatory 

requirements than faced by other parties 

who have not voluntarily participated in 

species conservation. Designation of 

critical habitat within the boundaries of 

nearly approved HCPs could be viewed 

as a disincentive to those entities 

currently developing HCPs or 

contemplating them in the future. 

Another benefit from excluding these 

lands is to maintain the partnerships 

developed among several partners in the 

Coachella Valley including 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; CVWD, Imperial Irrigation 

District, Riverside County Flood Control 

and Water Conservation District, 

Riverside County Regional Parks and 

Open Space District, Riverside County 

Waste Management District, CDPR; 

Coachella Valley Mountains 

Conservancy; CDFG; Caltrans; BLM; 

U.S. Forest Service; the National Park 

Service; and us to complete and 

implement the Coachella Valley 

MSHCP/NCCP. Instead of using limited 

funds to comply with administrative 

consultation and designation 

requirements which cannot provide 

protection beyond what is currently in 

place, the partners could instead use 

their limited funds for the conservation 

of this species. 

A related benefit of excluding lands 

within HCPs from critical habitat 

designation is the unhindered, 

continued ability to seek new 

partnerships with future HCP 

participants including States, Counties, 

local jurisdictions, conservation 

organizations, and private landowners, 

which together can implement 

conservation actions that we would be 

unable to accomplish otherwise. If lands 

within nearly completed HCP plan areas 

are designated as critical habitat, it 

would likely have a negative effect on 

our ability to establish new partnerships 

to develop HCPs, particularly large, 

regional HCPs that involve numerous 

participants and address landscapelevel conservation of species and 

habitats. By excluding these lands, we 

preserve our current partnerships and 

encourage additional conservation 

actions in the future. This is especially 

important for federally listed plants that 

do not receive take prohibitions under 

the Act on non-Federal lands. By 

including measures to conserve plants 

and habitat in an HCP, non-Federal 

participants are voluntarily agreeing to 

conserve plants that would not 

otherwise receive protections with a 

critical habitat designation. Further, 

imposing additional regulatory burdens 

on HCP participants with regard to a 

listed plant could discourage them from 

including plants as covered species and 

providing conservation benefits for 

them. 

Furthermore, an HCP or NCCP/HCP 

application must itself be consulted 

upon. While this consultation will not 

look specifically at the issue of adverse 

modification to critical habitat, unless 

critical habitat has already been 

designated within the proposed plan 

area, it will determine if the HCP 

jeopardizes the species in the plan area. 

In addition, Federal actions not covered 

by the HCP in area that may affect 

occupied by listed species would still 

require consultation under section 7 of 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74133 

the Act. HCP and NCCP/HCPs typically 

provide for greater conservation benefits 

to a covered species than section 7 

consultations because HCPs and NCCP/ 

HCPs assure the long-term protection 

and management of a covered species 

and its habitat, and funding for such 

management through the standards 

found in the 5 Point Policy for HCPs (64 

FR 35242) and the HCP ‘‘No Surprises’’

regulation (63 FR 8859). Such 

assurances are typically not provided by 

section 7 consultations that, in contrast 

to HCPs, often do not commit the 

project proponent to long-term special 

management considerations or 

protections. Thus, a consultation 

typically does not accord the lands it 

covers the extensive benefits a HCP or 

NCCP/HCP provides. The development 

and implementation of HCPs or NCCP/ 

HCPs provide other important 

conservation benefits, including the 

development of biological information 

to guide the conservation efforts and 

assist in species conservation, and the 

creation of innovative solutions to 

conserve species while allowing for 

development. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We have reviewed and evaluated the 

exclusion of 14,091 ac (5,703 ha) of 

lands within the nearly completed 

Coachella Valley MSHCP/NCCP plan 

area from critical habitat designation for 

Astragalus lentiginosus var. coachellae; 

and based on this evaluation, we find 

that the benefits of exclusion, which 

include potentially avoiding increased 

regulatory costs that could result from 

including those lands in this 

designation of critical habitat, ensuring 

the willingness of existing partners to 

continue active conservation measures, 

maintaining the ability of attracting new 

partners, and directing limited funding 

to conservation actions with partners, of 

the lands containing features essential 

to the conservation of A. l. var. 

coachellae within the draft Coachella 

Valley MSHCP/NCCP outweigh the 

benefits of inclusion, which include 

limited educational and regulatory 

benefits that are largely otherwise 

provided for under the draft MSHCP/ 

NCCP, of these lands as critical habitat. 

The benefits of inclusion of these 14,091 

ac (5,703 ha) of lands as critical habitat 

are lessened because of the significant 

level of conservation that is proposed to 

be provided for A. l. var. coachellae 

under the draft Coachella Valley 

MSHCP/NCCP, including the 

conservation of PCEs, protection of 

important ecological processes that 

maintain PCEs, maintenance of 

biological corridors and linkages among 

all conserved populations to the 

maximum extent feasible, and 

conservation of habitat quality through 

biological monitoring and adaptive 

management actions that may improve 

PCEs. 

In contrast, the benefits of excluding 

11,877 ac (4,807 ha) of non-Federal 

lands covered by their likely signatory 

status to the draft Coachella Valley 

MSHCP/NCCP and 2,214 ac (896 ha) of 

BLM lands based on their commitment 

under their CDCAPA for the Coachella 

Valley to manage their lands consistent 

with the draft Coachella Valley MSHCP/ 

NCCP and official participation in the 

draft Coachella Valley MSHCP/NCCP 

planning process from critical habitat 

designation are increased because of the 

high level of cooperation by the 

participants in the Coachella Valley 

MSHCP/NCCP to conserve this taxon. 

This partnership exceeds any 

conservation value provided by a 

critical habitat designation, particularly 

for federally listed plants, which do not 

receive protection stemming from take 

prohibitions on non-Federal lands 

under the Act. 

(4) Exclusion Will Not Result in 

Extinction of the Species 

In the proposed designation of critical 

habitat for Astragalus lentiginosus var. 

coachellae published on December 14, 

2004 (69 FR 74468), we excluded all 

non-Federal lands containing essential 

features for the conservation of A. l. var. 

coachellae from the proposed 

designation under Section 4(b)(2) of the 

Act because of their relationship to the 

draft Coachella Valley MSHCP/NCCP. In 

this final designation, we continue to 

believe that the exclusion of nonFederal lands as well as BLM lands 

(14,091 ac (5,703 ha)) in all three Units 

will not result in extinction of A. l. var. 

coachellae since all areas containing 

essential features for the conservation of 

A. l. var. coachellae are being proposed 

for conservation and management that 

will benefit this taxon pursuant to the 

draft Coachella Valley MSHCP/NCCP. 

The draft Coachella Valley MSHCP/ 

NCCP includes specific conservation 

objectives, avoidance and minimization 

measures, and management for the draft 

Coachella Valley MSHCP/NCCP that 

exceed any conservation value provided 

as a result of a critical habitat 

designation. 

The jeopardy standard of section 7 

and routine implementation of habitat 

conservation through the section 7 

process also provide assurances that the 

species will not go extinct. The 

exclusion leaves this protection 

unchanged from what would exist if the 

excluded areas were designated as 

critical habitat. 

Critical habitat is being designated for 

Astragalus lentiginosus var. coachellae 

in other areas that will be accorded the 

protection from adverse modification by 

Federal actions using the conservation 

standard based on the Ninth Circuit 

Court’s decision in Gifford Pinchot. 

These factors acting in concert with the 

other protections provided under the 

Act, lead us to find that exclusion of 

these 14,091 ac (5,703 ha) within the 

draft Coachella Valley MSHCP/NCCP 

will not result in extinction of A. l. var. 

coachellae. 

Economic Analysis 

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

to designate critical habitat on the basis 

of the best scientific information 

available and to consider the economic 

and other relevant impacts of 

designating a particular area as critical 

habitat. We may exclude areas from 

critical habitat upon a determination 

that the benefits of such exclusions 

outweigh the benefits of specifying such 

areas as critical habitat. We cannot 

exclude such areas from critical habitat 

when such exclusion will result in the 

extinction of the species concerned. 

Following the publication of the 

proposed critical habitat designation, 

we conducted an economic analysis to 

estimate potential economic effects of 

the proposed Astragalus lentiginosus 

var. coachellae critical habitat 

designation (Northwest Economics 

Associates 2005). The draft analysis was 

made available for public review on 

September 27, 2005 (70 FR 56434). We 

accepted comments on the draft analysis 

until October 27, 2005. 

The primary purpose of the economic 

analysis is to estimate the potential 

economic impacts associated with the 

designation of critical habitat for the 

Astragalus lentiginosus var. coachellae. 

This information is intended to assist 

the Secretary in making decisions about 

whether the benefits of excluding 

particular areas from the designation 

outweigh the benefits of including those 

areas in the designation. This economic 

analysis considers the economic 

efficiency effects that may result from 

the designation, including habitat 

protections that may be co-extensive 

with the listing of the species. It also 

addresses distribution of impacts, 

including an assessment of the potential 

effects on small entities and the energy 

industry. This information can be used 

by the Secretary to assess whether the 

effects of the designation might unduly 

burden a particular group or economic 

sector. 

74134 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

This analysis focuses on the direct 

and indirect costs of the rule. However, 

economic impacts to land use activities 

can exist in the absence of critical 

habitat. These impacts may result from, 

for example, local zoning laws, State 

and natural resource laws, and 

enforceable management plans and best 

management practices applied by other 

State and Federal agencies. Economic 

impacts that result from these types of 

protections are not included in the 

analysis as they are considered to be 

part of the regulatory and policy 

baseline. 

There is no economic impact within 

the final designation because the 

Service has not designated any lands as 

critical habitat for Astragalus 

lentiginosus var. coachellae. 

A copy of the final economic analysis 

and supporting documents are included 

in our administrative file and may be 

obtained by contacting the Carlsbad 

office (see ADDRESSES section). 

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 will not 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. As explained above 

in the section titled Economic Analysis, 

we prepared an economic analysis of 

this action. We used this analysis to 

meet the requirement of section 4(b)(2) 

of the Act to determine the economic 

consequences of designating the specific 

areas as critical habitat. We also used it 

to help determine whether to exclude 

any area from critical habitat, as 

provided for under section 4(b)(2), if we 

determine that the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat, unless we determine, 

based on the best scientific data 

available, that the failure to designate 

such area as critical habitat will result 

in the extinction of the species. 

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

et seq.) 

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. In our proposed rule, we 

withheld our determination of whether 

this designation would result in a 

significant effect as defined under 

SBREFA until we completed our draft 

economic analysis of the proposed 

designation so that we would have the 

factual basis for our determination. 

According to the Small Business 

Administration (SBA), small entities 

include small organizations, such as 

independent nonprofit organizations, 

and small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents, as well as small 

businesses (13 CFR 121.201). Small 

businesses include manufacturing and 

mining concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if this designation of 

critical habitat for Astragalus 

lentiginosus var. coachellae will affect a 

substantial number of small entities, we 

considered the number of small entities 

affected within particular types of 

economic activities (e.g., residential, 

industrial, and commercial 

development). We considered each 

industry or category individually to 

determine if certification is appropriate. 

In estimating the numbers of small 

entities potentially affected, we also 

considered whether their activities have 

any Federal involvement; some kinds of 

activities are unlikely to have any 

Federal involvement and so will not be 

affected by the designation of critical 

habitat. Designation of critical habitat 

only affects activities conducted, 

funded, permitted, or authorized by 

Federal agencies; non-Federal activities 

are not affected by the designation. 

Typically, when proposed critical 

habitat designations are made final, 

Federal agencies must consult with us if 

their activities may affect designated 

critical habitat. Consultations to avoid 

the destruction or adverse modification 

of critical habitat would be incorporated 

into the existing consultation process. 

Our analysis determined that costs 

involving conservation measures for 

Astragalus lentiginosus var. coachellae 

would be incurred for activities 

involving residential, commercial, and 

industrial development (land 

subdivision companies); transportation 

(Caltrans, CVAG, or Riverside County 

Transportation Commission); Federal 

land (BLM, U.S. Forest Service, and the 

Service); other public (CDFG and CDPR) 

or conservation (TNC and CNLM) land 

management; water supply (Mission 

Springs Water District and CVWD); 

flood control (CVWD and Riverside 

County Flood Control and Water 

Conservation District agencies); 

implementation of the draft Coachella 

Valley MSHCP/NCCP; and wind energy 

projects (private businesses and 

individuals). However, since no critical 

habitat is being designated, no 

consultations would be necessary. 

In our economic analysis of the 

proposed designation, we evaluated the 

potential economic effects on small 

business entities resulting from 

conservation actions related to the 

listing of this species and designation of 

its critical habitat. Because zero acres of 

critical habitat are being designated, 

there would be no additional costs to 

small businesses, and, thus, this rule 

would not result in a ‘‘significant effect’’

for small businesses in Riverside 

County, California. As such, we are 

certifying that this rule will not result in 

a significant economic impact on a 

substantial number of small entities. 

Small Business Regulatory Enforcement 

Fairness Act (5 U.S.C. 801 et seq.) 

Under SBREFA, this rule is not a 

major rule. Our detailed assessment of 

the economic effects of this designation 

is described in the economic analysis. 

Based on the effects identified in the 

economic analysis as well as the fact 

that this rule is a zero designation of 

critical habitat, we believe that this rule 

will not have an annual effect on the 

economy of $100 million or more, will 

not cause a major increase in costs or 

prices for consumers, and will not have 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74135 

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 

final 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 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 et 

seq.), we make 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 onto State 

governments. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments because we are 

designating zero acres of critical habitat. 

Consequently, we do not believe that 

critical habitat designation would 

significantly or uniquely affect small 

government entities. As such, a Small 

Government Agency Plan is not 

required. 

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 critical 

habitat for Astragalus lentiginosus var. 

coachellae. Critical habitat designation 

does not affect landowner actions that 

do not require Federal funding or 

permits, nor does it preclude 

development of habitat conservation 

programs or issuance of incidental take 

permits to permit actions that do require 

Federal funding or permits to go 

forward. Because we are designating 

zero acres of critical habitat for 

Astragalus lentiginosus var. coachellae, 

this rule does not pose significant 

takings implications. 

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 

critical habitat designation with 

appropriate State resource agencies in 

California. The designation of zero acres 

of critical habitat in areas currently 

occupied by Astragalus lentiginosus var. 

coachellae would have no impact on 

State and local governments and their 

activities. The process of identifying 

habitat with features essential to the 

conservation of the species may have 

some benefit to these governments in 

that these 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 

designated zero acres of critical habitat 

in accordance with the provisions of the 

Act. This final 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 

74136 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

Ninth Circuit (Douglas County v. 

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

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

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 

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. We 

have determined that no tribal lands 

occupied at the time of listing contain 

the features essential for the 

conservation and no tribal lands that are 

unoccupied are essential for the 

conservation of the Astragalus 

lentiginosus var. coachellae. 

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. 

Regulation Promulgation 

■ Accordingly, we 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), in the List of 

Endangered and Threatened Plants, 

revise the entry 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 

milk-vetch.

U.S.A. (CA) ............ Fabaceae ............... E 647 17.96(a) (No 

areas designated) 

NA 

* * * * * * * 

■ 3. In § 17.96, amend paragraph (a) by 

adding an entry for Astragalus 

lentiginosus var. coachellae in 

alphabetical order under Family 

Fabaceae to read as follows: 

§ 17.96 Critical habitat—plants. 

(a) Flowering plants. 

* * * * * 

Family Fabaceae: Astragalus 

lentiginosus var. coachellae 

(Coachella Valley Milk-Vetch) 

Pursuant to section 4(b)(2) of the Act, 

we have excluded all areas determined 

to meet the definition of critical habitat 

under section 3(5)(A) of the Act for 

Astragalus lentiginosus var. coachellae. 

Therefore, no specific areas are 

designated as critical habitat for this 

species. 

* * * * * 

Dated: November 30, 2005. 

Craig Manson, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 05–23694 Filed 12–13–05; 8:45 am] 

BILLING CODE 4310–55–P