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Proposed Rule

Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for Astragalus pycnostachyus

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AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat pursuant to the Endangered Species Act of 1973, as amended (Act), for Astragalus pycnostachyus var. lanosissimus (Ventura marsh milk-vetch). Approximately 170 hectares (ha) (420 acres (ac)) of land fall within the boundaries of the proposed critical habitat designation. Proposed critical habitat is located in Santa Barbara and Ventura counties, California. Critical habitat receives protection from destruction or adverse modification through required consultation under section 7 of the Act with regard to actions carried out, funded or authorized by Federal agencies.

We are soliciting data and comments from the public on all aspects of this proposal, including data on economic and other impacts of the designation. We may revise this proposal to incorporate or address new information received during the comment period.

DATES:

We will accept comments until December 9, 2002. Public hearing requests must be received by November 25, 2002.

ADDRESSES:

If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods:

(1) You may submit written comments and information to the Field Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 93003.

(2) You may also send comments by electronic mail (e-mail) to fw1venturamilkvetch@fws.gov. See the Public Comments Solicited section below for file format and other information about electronic filing.

(3) You may hand-deliver comments to our Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 93003.

Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Rick Farris, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 93003 (telephone 805/644-1766; facsimile 805/644-3958). Information regarding this proposal is available in alternate formats upon request.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

Background

Astragalus pycnostachyus var. lanosissimus (Ventura marsh milk-vetch) is an herbaceous perennial in the pea family (Fabaceae). It has a thick taproot and multiple erect, reddish stems, 40 to 90 centimeters (cm) (16 to 36 inches (in)) tall, that emerge from the root crown. The pinnately compound leaves (divided more than once on the same stem and arranged like a feather) are densely covered with silvery white hairs. The 27 to 39 leaflets are 5 to 20 millimeters (mm) (0.2 to 0.8 in) long. The numerous greenish-white to cream colored flowers are in dense clusters and are 7 to 10 mm (0.3 to 0.4 in) long. The calyx (a whorl of leaves below the flower) teeth are 1.2 to 1.5 mm (0.04 in) long. The fruits are single-celled pods 8 to 11 mm (0.31 to 0.43 in) long (Barneby 1964). The blooming time has been recorded as July to October (Barneby 1964); however, the one extant population was observed to flower from June to September (Wilken and Wardlaw 2001). This variety is distinguished from A. pycnostachyus var. pycnostachyus (brine milk-vetch) by certain flower characteristics (i.e., the Start Printed Page 62927length of calyx tube, calyx teeth, and peduncles (a stalk bearing a flower or flower cluster)). It is distinguished from other local Astragalus species by its overall size, perennial growth form, size and shape of fruit, and flowering time.

Little is known of the habitat requirements of Astragalus pycnostachyus var. lanosissimus. All but two of the known collections of this taxon were made prior to 1930, and specimen labels from these collections and original published descriptions contain virtually no habitat information. The related variety, A. pycnostachyus var. pycnostachyus, is found in or at the high edge of coastal saltmarshes and seeps. The only known population of A. pycnostachyus var. lanosissimus occurs in a sparsely vegetated low area, at an elevation of about 10 meters (m) (30 feet (ft)), on a site previously used for disposal of petroleum waste products (Impact Sciences, Inc. 1997). Dominant shrub species at the site are Baccharis pilularis (coyote brush), Baccharis salicifolia (mulefat), Salix lasiolepis (arroyo willow), and the non-native Myoporum laetum (myoporum) (Impact Sciences, Inc. 1997). The population occurs with sparse vegetative cover provided primarily by Baccharis pilularis, Baccharis salicifolia, a non-native Carpobrotus sp. (seafig) and a non-native annual grass, Bromus madritensis ssp. rubens (red brome). Soils are reported to be loam-silt loams (Impact Sciences, Inc. 1997). Soils may have been transported from other locations as a cap for the disposal site once it was closed. The origin of the soil used to cap the waste disposal site is unknown; however, because of the costs of transport, the soil source is likely local.

Despite the lack of information available from historical collections, the best description we have of the habitat of Astragalus pycnostachyus var. lanosissimus is from Wilken and Wardlaw (2001) who concluded that the species occurs in low-elevation coastal dune-swale areas, where freshwater levels (in the form of saturated soils or groundwater) are high enough to reach the roots of the plants. Sometimes, high groundwater is shown by the presence of water in sloughs or coastal creeks, but more typically evidence for freshwater availability is seen in the presence of native, freshwater-dependent plants, such as Salix spp. (willows), Typha spp. (cattails), Baccharis salicifolia, and others. The soils associated with A. pycnostachyus var. lanosissimus are well-drained, yet contain a mix of sand and clay. Because of the freshwater influence, the soils do not exhibit a white crust which would indicate saline or alkaline conditions.

Like the habitat requirements, little is known about the reproductive biology of Astragalus pycnostachyus var. lanosissimus. According to Wilken and Wardlaw (2001), the species appears to be self-compatible and partly self-pollinating; however, the flower structure of this species and other Astragalus suggests that pollination requires manipulation of flower parts by insects. Few insects have been observed visiting A. pycnostachyus var. lanosissimus flowers. Wilken and Wardlaw (2001) observed a bumblebee (Bombus sp.) and two skippers (Family: Hesperidae) visiting the plants, and other researchers have observed large insects visiting other Astragalus species (e.g., Karron 1987). Therefore, it seems likely that insects are the natural pollinators of this plant. The life cycle of A. pycnostachyus var. lanosissimus thus requires that a pollinator community is present (Geer et al. 1995, Karron 1987). The pollinator community is supported by surrounding native vegetation. Non-native plants are likely to be detrimental as they compete with native plants, including A. pycnostachyus var. lanosissimus, for nutrients, water, and sunlight. Therefore, the percentage cover of exotic plants must be relatively low in areas designated as critical habitat for A. pycnostachyus var. lanosissimus. Recent research has shown that predation by non-native snails is a factor in the survival of seedlings in the extant population (Wilken and Wardlaw 2001).

Wilken and Wardlaw (2001) concluded that seed production in Astragalus pycnostachyus var. lanosissimus was limited by pollination and/or fertilization and seed predation by weevils (Family: Bruchidae). The reason for the low pollination rate is unknown, but could be attributed to factors that affect the local pollinator community, such as habitat loss, pesticides, and competition for nectar and aggression from non-native insects such as Argentine ant (Linepithema humile).

Low survivorship of seedlings and young plants observed in Astragalus pycnostachyus var. lanosissimus may be due in part to herbivory by snails (the non-native Otala lactea or Helix aspersa) and brush rabbits (Sylvilagus bachmani) (Wilken and Wardlaw 2001). Due to the combination of poor seedling and young plant survivorship and low seed production, the population of A. pycnostachyus var. lanosissimus declined from its rediscovery in 1997 until the 2001 season (Impacts Sciences 1997 and 1998; Wilken and Wardlaw 2001; Wilken, pers. comm., 2002). The population appears to be surviving due to having established a seedbank (not all seeds produced in one year will germinate the following year). The hard seed coat may require scarification (scraping or small cuts) that cannot happen within one season, so the seed may survive for one year or more in the soil until the coat can break down or is broken by some mechanical means (Wall, pers. comm., 2000). Also, Wilken and Wardlaw (2001) found that the plants may not become reproductive until more than 18 to 30 months following germination. The implication for A. pycnostachyus var. lanosissimus is that low seed production and thus a seed bank deficit, combined with low seedling survival and the mortality of some adult plants, may contribute to the population's decline unless the factors causing these problems (e.g., snail herbivory, low pollination rate) can be addressed.

Astragalus pycnostachyus var. lanosissimus was first described by Per Axel Rydberg (1929) as Phaca lanosissima from an 1882 collection by S.B. and W.F. Parish made in what is now Orange County, California. The combination A. pycnostachyus var. lanosissimus was assigned to this taxon by Philip Munz and Jean McBurney in 1932 (Munz 1932).

The exact location of the type locality of Astragalus pycnostachyus var. lanosissimus is unclear. The specimen label from the plant collected in 1882 by S.B. and W.F. Parish identifies the site as “La Bolsa.” Based on the labeling of other specimens collected by the Parishes in 1881 and 1882, Barneby (1964) suggested that this collection may have come from the Ballona marshes in Los Angeles County. However, Critchfield (1978) believed that “La Bolsa” could have referred to Bolsa Chica, a coastal marsh system located to the south in Orange County. The California Natural Diversity Data Base (CNDDB) (CDFG 2002) concludes that “La Bolsa” is the Bolsa Bay area between Sunset Beach and Huntington Beach in Orange County. Collections of other plants from the “La Bolsa” area have been mapped as the Bolsa Chica salt marsh, although exact locations of the collections are not known.

In the five decades following its discovery, Astragalus pycnostachyus var. lanosissimus was collected from only a few locations in Los Angeles and Ventura counties. In a second 1882 collection, the plant was collected from near Santa Monica in Los Angeles County. It was also collected from the Ballona marshes just to the south in Start Printed Page 629281902, and “Cienega” in 1904, also likely near the Ballona wetlands. In Ventura County it was collected in 1901 and 1925 from Oxnard and in 1911 from an unspecified location in “Ventura, California,” a city adjacent to Oxnard.

Barneby (1964) believed that Astragalus pycnostachyus var. lanosissimus had been extirpated from Santa Monica southward, noting that there was still the possibility it survived in Ventura County (although he knew of no locations at that time). The species was briefly rediscovered in 1967 through the chance collection by R. Chase of a single specimen growing by a roadside between the cities of Ventura and Oxnard. Searches uncovered no other living plants at that location, although some mowed remains discovered on McGrath State Beach lands across the road from Chase's collection site were believed to belong to this taxon (information on herbarium label from specimen collected by R.M. Chase 1967). Floristic surveys and focused searches conducted in the 1970s and 1980s at historical collection locations did not locate any populations of A. pycnostachyus var. lanosissimus and the plant was presumed extinct (Isley 1986, Burgess 1987, Spellenberg 1993, Skinner and Pavlik 1994). On June 12, 1997, a population of the plant was rediscovered by a Service biologist in a degraded coastal dune system near Oxnard, California (Kate Symonds, pers. obs., 1997).

Based upon searches for Astragalus pycnostachyus var. lanosissimus between the last collection in 1967 and its rediscovery in 1997, the species is believed to have been extirpated from all of the general areas from which it had been collected except the single remaining extant population in Oxnard, Ventura County. Locations of collections from the late 1800s to early 1900s in Los Angeles County are now urbanized within the expansive Los Angeles metropolitan area. Approximately 90 percent of the Ballona wetlands, once encompassing almost 810 ha (2,000 ac), have been drained, dredged, and developed into the urban areas of Marina del Rey and Venice (Critchfield 1978, Friends of Ballona Wetlands 1998). Ballona Creek, the primary freshwater source for the wetland, had been straightened, dredged and channelized by 1940 (Friesen et al. 1981). Despite periodic surveys of what remains at the Ballona wetlands, A. pycnostachyus var. lanosissimus has not been collected there since the early 1900s (Gustafson 1981; herbarium labels from collections by H. P. Chandler and by E. Braunton, 1902, housed at UC Berkeley Herbaria).

In 1987, botanists searched specifically for Astragalus pycnostachyus var. lanosissimus without success at previous collection locations throughout its range in coastal habitats, including Bolsa Chica in Orange County and on public lands around Oxnard in Ventura County (F. Roberts, Service, in. litt., 1987; T. Thomas, Service, pers. comm., 1997). Point Mugu Naval Air Weapons Station, in southern Ventura County, may have suitable habitat (Wilken and Wardlaw 2001); however, focused surveys have not been conducted there. A. pycnostachyus var. lanosissimus was not found during cursory surveys of the base, nor has this taxon ever been collected there despite habitat evaluations and vegetation sampling by the Navy for the past 15 years (Navy Base Ventura County 2002).

The single known population of Astragalus pycnostachyus var. lanosissimus near the city of Oxnard is in a degraded backdune community. From 1955 to 1981 the land on which it occurs was used as a disposal site for oil field wastes (Impact Sciences, Inc. 1998). In 1998, the City of Oxnard published a Final Environmental Impact Report (FEIR) for development of this site (Impact Sciences, Inc. 1998). In a final step, the project was approved by the California Coastal Commission in April 2002. The proposal for the site includes remediation of soils contaminated with hydrocarbons, followed by construction of 300 homes and a 2-ha (6-ac) lake on 37 ha (91 ac) of land. The proposed soil remediation would involve excavation and stockpiling of the soils, followed by soil treatment and redistribution of the soils over the site (Impact Sciences, Inc. 1998).

The proposed measures for conservation on the site would be to establish a 2 ha (5 ac) preserve that would be dominated by highly disturbed soils. The buffers between the development and preserve areas would be 15 meters (m) (50 feet (ft)). According to a comprehensive review of rare plant preserve design compiled by the Conservation Biology Institute (2000), buffers of that size are insufficient to protect a rare plant species because indirect effects (e.g., fuel management, loss of pollinators, introduction of competing exotic plants) are not absorbed and are likely to extend well into the preserved area. Thus, the preserve proposed for Astragalus pycnostachyus var. lanosissimus has inadequate consideration of the biological needs of the species and unproven management and protection of the site. The proposed project, as described in the FEIR, could have several adverse effects on the only known population of A. pycnostachyus var. lanosissimus, possibly resulting in the extinction of this taxon in the wild. We anticipate that the project will exacerbate the problems the population already experiences with snail predation and exotic plants, and will also introduce pesticides, increase human access, interrupt pollination, and alter the freshwater inundation regime that the species apparently requires.

The Service was not involved in the agreements between the developer and local and State officials because our regulatory authority does not extend to listed plants on private land unless there is a Federal nexus, such as a Federal permit or funding. No nexus existed on the site and our role was strictly advisory.

A sooty fungus was found on the leaves of Astragalus pycnostachyus var. lanosissimus in late summer, 1997, as leaves began to senesce (die) or wither and the plants entered a period of dormancy (Impact Sciences, Inc. 1997). The effects of the fungus on the population are not known, but it is possible that the fungus attacks senescing leaves in great number only at the end of the growing season. The plants appeared robust when in flower in June 1997, matured seed by October 1997, and were regrowing in March 1998, after a period of dormancy, without obvious signs of the fungus (Steeck, in. litt, 1998). Wilken and Wardlaw (2001) did not detect any signs of pathogens on mature plants that appeared to be in poor health; however, two mature plants had infestations of aphids (Family: Aphididae) that were being tended by non-native Argentine ants. Cucumber mosaic virus, which is transmitted by aphids, was found in the A. pycnostachyus var. lanosissimus population (Wilken 2002).

In 1997, the seeds of Astragalus pycnostachyus var. lanosissimus were heavily infested with seed beetles (Bruchidae: Coleoptera). In a seed collection done for conservation purposes in 1997, the Service found that most fruits partially developed at least 4 seeds; however, seed predation reduced the average number of undamaged seeds to only 1.8 per fruit (Steeck, in. litt., 1998). Wilken and Wardlaw (2001) reported similar findings in 2000. Apparently heavy seed predation by seed beetles and weevils has been reported among other members of the genus Astragalus (Platt et al. 1974, Lesica 1995). Wilken and Wardlaw (2001) estimate that seed predation by these insects may reduce Start Printed Page 62929seed viability by 30 percent in a given year.

Because of its small population size, the only natural population is also threatened by competition with non-native plant species. Cortaderia selloana (pampas grass), Carpobrotus sp., and Bromus madritensis ssp. rubens are invasive non-native plant species that occur at the site (Impact Sciences, Inc. 1997). Carpobrotus sp. in particular, are competitive, succulent species with the potential to cover vast areas in dense clonal mats and may harbor non-native snails. Bromus madritensis ssp. rubens grew in high densities around some mature individuals of Astragalus pycnostachyus var. lanosissimus in 1998 and seedlings were germinating among patches of Carpobrotus spp. and Bromus spp. in 1998 (D. Steeck, in. litt., 1998). Seedling survival rates in these areas have not yet been determined.

Efforts to conserve Astragalus pycnostachyus var. lanosissimus have been initiated by the landowner (North Shore at Mandalay LLC) and a task force of scientists from the University of California and Santa Barbara Botanic Garden, agencies (California Department of Fish and Game, U.S. Fish and Wildlife Service, California Department of Parks and Recreation), and plant propagation experts from the Rancho Santa Ana Botanic Gardens (RSABG). Contractors for the landowner and proponent of the development, North Shore at Mandalay LLC, have successfully grown plants in a remote greenhouse facility. Several plants were excavated from the natural population and potted prior to state and Federal listing, and other plants were started from seed gathered from the natural population. In addition, A. pycnostachyus var. lanosissimus seed from the site was placed in a seed storage collection and a seed bulking project at RSABG. RSABG has been successful in germinating A. pycnostachyus var. lanosissimus seed and growing the plants in containers (Wilken and Wardlaw 2001).

Research populations have been introduced in two locations within the historical range of Astragalus pycnostachyus var. lanosissimus: Mandalay State Beach, across the street from the extant population, and one at McGrath State Beach. Two transplantation experiments are underway outside of the known range of the species: one at Carpenteria Marsh and the other at Coal Oil Point, both in Santa Barbara County. Approximately 250 individuals were planted and are being irrigated at the Coal Oil Point Reserve. Seed has been introduced at 10 separate dune locations at the Reserve (Cristina Sandoval, Reserve Director, pers. comm., 2002). The success of any of these efforts in establishing self-sustaining populations of A. pycnostachyus var. lanosissimus is yet to be determined.

In 1997, the population of Astragalus pycnostachyus var. lanosissimus in Oxnard consisted of about 374 plants, of which 260 were small plants thought to have germinated in the last year and 114 were “adult” plants. Of these adult plants, fewer than 65 plants produced fruit in 1997 (Impact Sciences, Inc. 1997). In 1998, 192 plants were counted during surveys of the population. Service biologists placed cages around a sample of plants in 1999 to protect them from severe herbivory apparently done by small mammals, most likely brush rabbits. Despite this protection, only 30 to 40 plants produced flowers in 1999, which was believed to be less than half of those blooming in 1998 (Steeck, in litt., 1998).

Wilken and Wardlaw (2001) state that the total number of adult plants declined between 1997 and 2000. Although 46 of 80 seedlings that germinated in the 2000 growing season were still present in October 2000, the total number of surviving adult plants in 2000 was estimated at 39. Many are believed to have succumbed to herbivory from snails and brush rabbits. Other losses are unexplained, sudden mortalities (Wilken and Wardlaw 2001). Following efforts to control snails in 2000 (i.e., poisoning, hand removal, clearing of iceplant, fencing), and perhaps more favorable growing conditions in the winter of 2000-2001, more than 1,000 seedlings were observed (Wilken, pers. comm., 2002). Of these, more than 300 survived until October 2001 when they became dormant. At the time of this proposal, more recent survey data is not available.

Previous Federal Action

Federal actions for this taxon began pursuant to section 12 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (Act), which directed the Secretary of the Smithsonian Institution to prepare a report on those plants considered to be endangered, threatened, or extinct in the United States. This report (House Document No. 94-51) was presented to Congress on January 9, 1975, and Astragalus pycnostachyus var. lanosissimus was included on List C, among those taxa believed possibly extinct in the wild. The Service published a notice in the July 1, 1975, Federal Register (40 FR 27823) of its acceptance of the report as a petition within the context of section 4(c)(2) (petition provisions are now found in section 4(b)(3)) of the Act and its intention to review the status of the plant taxa named therein.

On June 16, 1976, the Service published a proposed rule in the Federal Register (41 FR 24523) to determine approximately 1,700 vascular plant species to be endangered species pursuant to section 4 of the Act. This list, which included Astragalus pycnostachyus var. lanosissimus, was assembled on the basis of comments and data received by the Smithsonian Institution and the Service in response to House Document No. 94-51 and the July 1, 1975, Federal Register publication. General comments received in relation to the 1976 proposal were summarized in an April 26, 1978, Federal Register publication (43 FR 17909). In 1978, amendments to the Act required that all proposals over 2 years old be withdrawn. A 1-year grace period was given to those proposals already more than 2 years old. In a December 10, 1979, notice (44 FR 70796) the Service withdrew the portion of the June 16, 1976, proposal that had not been made final, along with four other proposals that had expired. A. pycnostachyus var. lanosissimus was included in that withdrawal notice.

We published an updated Notice of Review (NOR), Review of Plant Taxa for Listing as Endangered and Threatened Species on December 15, 1980 (45 FR 82480). This notice included Astragalus pycnostachyus var. lanosissimus in a list of category 1 candidate species that were possibly extinct in the wild. Category 1 candidate species were taxa for which we had sufficient information on biological vulnerability and threats to support the preparation of listing proposals. These category 1 candidates were given high priority for listing were extant populations to be confirmed.

The Service maintained Astragalus pycnostachyus var. lanosissimus as a category 1 candidate in subsequent NORs: November 28, 1983 (48 FR 53640); September 27, 1985 (50 FR 39526); and February 21, 1990 (55 FR 6184). The Service published a NOR (58 FR 51144) on September 30, 1993, in which taxa whose existence in the wild was in doubt, including A. pycnostachyus var. lanosissimus, were moved to Category 2. Category 2 candidate species were taxa for which information then in our possession indicated that proposing to list the taxon as endangered or threatened was possibly appropriate, but for which substantial data on biological vulnerability and threats were not currently known or on file to support proposed rules. On February 28, 1996 Start Printed Page 62930we published a NOR in the Federal Register (61 FR 7596) that discontinued the designation of category 2 species as candidates, including those taxa thought to be extinct. Thus, A. pycnostachyus var. lanosissimus was excluded from this and subsequent NORs. In 1997, A. pycnostachyus var. lanosissimus was rediscovered and a review of the taxon's status indicated that a proposed rule was warranted.

A proposed rule to list Astragalus pycnostachyus var. lanosissimus as endangered was published in the Federal Register on May 25, 1999 (64 FR 28136). On January 26, 2001, the Center for Biological Diversity (CBD) filed a Complaint for Declaratory and Injunctive Relief against the Service asking the court to enjoin the Service to render a final listing determination for A. pycnostachyus var. lanosissimus. The final rule listing the plant as endangered was published on May 21, 2001 (66 FR 27901).

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that designation of critical habitat is not prudent when one or both of the following situations exists: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species; or (2) such designation of critical habitat would not be beneficial to the species. At the time Astragalus pycnostachyus var. lanosissimus was listed, we found that designation of critical habitat was prudent but not determinable, and that we would designate critical habitat once we had gathered the necessary data.

Despite this finding regarding critical habitat at the time of listing, the CBD lawsuit also sought to cause the Service to prepare a final rule designating critical habitat for Astragalus pycnostachyus var. lanosissimus. A stipulated settlement agreement and Order was filed with the court on August 2, 2001, which provides that the Service will submit for publication in the Federal Register a proposed critical habitat designation for A. pycnostachyus var. lanosissimus on or before October 1, 2002, and that the final designation will be submitted for publication on or before October 1, 2003.

Critical Habitat

Section 3 defines critical habitat as—(i) the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures that are necessary to bring an endangered or a threatened species to the point at which listing under the Act is no longer necessary.

Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 also requires conferences on Federal actions that are likely to result in the destruction or adverse modification of proposed critical habitat.

Critical habitat also provides non-regulatory benefits to the species by informing public and private interest groups of areas that are important for species recovery and where conservation actions would be most effective. Designation of critical habitat can help focus conservation activities for a listed species by identifying areas that contain the physical and biological features essential for the conservation of that species, and can alert the public as well as land-managing agencies to the importance of those areas. Critical habitat also identifies areas that may require special management considerations or protection, and may help provide protection to areas where significant threats to the species have been identified, by helping people to avoid causing accidental damage to such areas.

In order to be included in a critical habitat designation, the habitat must first be “essential to the conservation of the species.” Critical habitat designations identify, to the extent known, and using the best scientific and commercial data available, habitat areas that provide at least one of the physical or biological features essential to the conservation of the species (primary constituent elements, as defined at 50 CFR 424.12(b)). Section 3(5)(C) of the Act states that not all areas that can be occupied by a species should be designated as critical habitat unless the Secretary determines that all such areas are essential to the conservation of the species. Our regulations (50 CFR 424.12(e)) also state that, “The Secretary shall designate as critical habitat areas outside the geographic area presently occupied by the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” Accordingly, we do not designate critical habitat in areas outside the geographic area occupied by the species unless the best available scientific and commercial data demonstrate that unoccupied areas are essential for the conservation needs of the species.

Section 4(b)(2) of the Act requires that we take into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. We may exclude areas from critical habitat designation when the benefits of exclusion outweigh the benefits of including the areas within critical habitat, provided the exclusion will not result in extinction of the species.

Our Policy on Information Standards Under the Endangered Species Act, published in the Federal Register on July 1, 1994 (59 FR 34271), provides criteria, establishes procedures, and provides guidance to ensure that our decisions represent the best scientific and commercial data available. It requires our biologists, to the extent consistent with the Act and with the use of the best scientific and commercial data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas are critical habitat, a primary source of information should be the listing package for the species. Additional information may be obtained from a recovery plan, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, unpublished materials, or other unpublished materials.

Section 4 of the Act requires that we designate critical habitat based on what we know at the time of designation. 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 Start Printed Page 62931recovery. Areas that support newly discovered populations in the future, 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 and the section 9(a)(2) prohibitions, as determined on the basis of the best available information at the time of the action. Federally funded or assisted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.

Methods

As required by the Act and regulations (section 4(b)(2) and 50 CFR 424.12) we used the best scientific information available to determine areas that contain the physical and biological features that are essential for the conservation of Astragalus pycnostachyus var. lanosissimus. This information included data from the final rule listing the species as endangered (66 FR 27901), the CNDDB (CDFG 2002), recent biological surveys, reports and aerial photos, additional information provided by interested parties, and discussions with botanical experts. We also conducted site visits at locations managed by Federal and State agencies, including the Navy Base Ventura County/Point Mugu, McGrath State Beach, and Carpinteria Marsh.

Much of the critical habitat description is derived from Wilken and Wardlaw (2001) which represents the most complete information to date regarding the biology and habitat of Astragalus pycnostachyus var. lanosissimus. Of particular relevance to this critical habitat determination, Wilken and Wardlaw (2001) provide descriptions of the habitat of A. pycnostachyus var. lanosissimus' closest relative, A. pycnostachyus var. pycnostachyus (northern marsh milk-vetch). Wilken and Wardlaw (2001) collected data on habitat characteristics at sites occupied by A. pycnostachyus var. pycnostachyus and compared these with the characteristics at the extant population of A. pycnostachyus var. lanosissimus. Once common habitat characteristics had been established, Wilken and Wardlaw used these to evaluate areas for their suitability for establishing new populations of A. pycnostachyus var. lanosissimus. The factors evaluated included: degree of disturbance; vegetative cover (percent and type); associated species; proximity to subterranean water table; and potential threats. Wilken and Wardlaw (2001) also analyzed soil from the site where A. pycnostachyus var. lanosissimus currently exists for physical and chemical properties important for general plant growth, such as texture, pH, salinity, nutrients, and micronutrients.

Determining what constitutes habitat for Astragalus pycnostachyus var. lanosissimus is difficult due to having only one extant population on a site of questionable history (i.e., soil dumping, oil waste) to sample. Also, the historical collections did not fully document the habitat where the plants were found. Therefore, both Wilken and Wardlaw (2001) and the Service's (Steeck, in litt., 1998) data were used to characterize the habitat of A. pycnostachyus var. lanosissimus and to determine the primary constituent elements. Some differences between the two subspecies of A. pycnostachyus are apparent, especially in regards to associated plant species and general habitat type. These differences may be a function of a small data set for A. pycnostachyus var. lanosissimus due to its single population, uncertainty surrounding the presence of A. pycnostachyus var. lanosissimus on the extant site (i.e., whether it is a natural occurrence or was introduced through soil dumping), and differences in the two subspecies in terms of what habitat may support them. We have paid particular attention to information from Wilken and Wardlaw (2001) because they analyzed conditions at the only known site where A. pycnostachyus var. lanosissimus currently occurs.

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we consider those physical and biological features (primary constituent elements) 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 reproduction, germination, or seed dispersal; and habitats that are protected from disturbance or are representative of the known historical geographical and ecological distributions of a species.

Much of what is known about the specific physical and biological requirements of Astragalus pycnostachyus var. lanosissimus is described in the Background section of this proposed rule. The proposed critical habitat is designed to provide sufficient habitat to maintain self-sustaining populations of A. pycnostachyus var. lanosissimus throughout its range and to provide those habitat components essential for the conservation of the species. These habitat components provide for: (1) Individual and population growth, including sites for germination, pollination, reproduction, pollen and seed dispersal, and seed dormancy; (2) areas that allow gene flow and provide connectivity or linkage within larger populations; (3) areas that provide basic requirements for growth, such as water, light, and minerals; and (4) areas that support populations of pollinators and seed dispersal organisms.

We believe the long-term probability of the conservation of Astragalus pycnostachyus var. lanosissimus is dependent upon the protection of the existing population site and sites where introductions can be conducted, as well as the maintenance of ecological functions within these sites, including connectivity between colonies (i.e., groups of plants within sites) within close geographic proximity to facilitate pollinator activity and seed dispersal. The areas we are proposing to designate as critical habitat provide some or all of the habitat components essential for the conservation of A. pycnostachyus var. lanosissimus. Based on the best available information at this time, the primary constituent elements of critical habitat for A. pycnostachyus var. lanosissimus consist of, but are not limited to:

(1) Vegetation cover of at least 50 percent but not exceeding 75 percent, consisting primarily of known associated native species, including but not limited to, Baccharis salicifolia, Baccharis pilularis, Salix lasiolepis, Lotus scoparius (deerweed), and Ericameria ericoides (coast goldenbush);

(2) Low densities of non-native annual plants and shrubs, not exceeding 25 percent cover (combined with the minimum 50 percent native cover requirement, total cover of natives and non-natives should not exceed 75 percent);

(3) The presence of a high water table, either fresh or brackish, as evidenced by the presence of channels, sloughs, or depressions that may support stands of Start Printed Page 62932 Salix lasiolepis, Typha spp., and Scirpus spp. (cattail);

(4) Soils that are fine-grained, composed primarily of sand with some clay and silt, yet are well-drained; and

(5) Soils that do not exhibit a white crystalline crust that would indicate saline or alkaline conditions.

Criteria Used To Identify Critical Habitat

Critical habitat being proposed for Astragalus pycnostachyus var. lanosissimus includes the only known location where the species currently occurs and two other sites with high potential to support the species based upon habitat characteristics (including the analysis of Wilken and Wardlaw 2001) and/or historical occurrences. We believe that establishment of new, self-sustaining populations of A. pycnostachyus var. lanosissimus at other sites is essential for the species' survival because the species is currently known from a single location at which its future is uncertain due to its small population size and the high degree of threat from chance catastrophic events. Catastrophic events are a concern when the number of populations or geographic distribution of a species is severely limited (Shaffer 1981, 1987; Primack 1998; Meffe and Carroll 1997), as is the case with A. pycnostachyus var. lanosissimus. Because a critical habitat designation limited to this species' present range—one known location—would be inadequate to ensure its conservation, the establishment of additional locations for A. pycnostachyus var. lanosissimus is critical to reducing the risk of extinction.

For sites not currently occupied by Astragalus pycnostachyus var. lanosissimus, we first considered the historical range of the species based upon collection data and records from the CNDDB (CDFG 2001). From this potential distribution, we located the areas where the plants were observed or collected as closely as they could be discerned from the data. In some cases, we had to determine that old place names, such as “La Bolsa,” referred to sites with some similar name, like Bolsa Chica, or found references that made conclusions about modern place names from the data.

By examining aerial photographs and reviewing pertinent literature, and through discussions with knowledgeable individuals, we identified areas where habitat similar to that at the currently occupied site and where habitat similar to that occupied by the closest relative, Astragalus pycnostachyus var. pycnostachyus, may still exist. These broader areas were refined with information on the extant population and the other locations as derived from Wilken and Wardlaw (2001). We also engaged in discussions with the Carlsbad Fish and Wildlife Office which has responsibility for and experience with the historical locations in southern Los Angeles and Orange counties (K. Clark and J. Fancher, pers. comm., 2002).

The boundaries of the units were identified on aerial photographs and U.S. Geological Survey topographical maps and refined based upon adjacent land uses. For example, one unit is bordered on three sides by urban areas and on the final side by the Pacific Ocean. We decided that due to the limited suitable habitat available, the patchiness of such habitat, and the lack of information on related ecosystem functions that would support Astragalus pycnostachyus var. lanosissimus, we should include all natural vegetation within the units up to where land use changes and natural vegetation end. The critical habitat units were designed to encompass a large enough area to support existing ecological processes that may be essential to the conservation of A. pycnostachyus var. lanosissimus (e.g., that provide areas into which populations might expand, provide connectivity or linkage between colonies within a unit, and support populations of pollinators and seed dispersal organisms).

Within the historical range of Astragalus pycnostachyus var. lanosissimus, we considered two of the collection localities: Bolsa Chica, Orange County, and the Ballona Wetlands, Los Angeles County. During discussions with biologists most familiar with these areas (K. Clark and J. Fancher, pers. comm., 2002), we concluded that, although the areas remain undeveloped for the most part, conditions have changed dramatically since the plants were collected. For example, the Bolsa Chica area has been altered by oil development, which created raised pads and lower excavated areas, and channelized the natural freshwater inflow that once existed. The influence of tidal flow is now more pronounced, to the point that the soils have become saline. The area, therefore, does not contain plant species that indicate freshwater influence. Plant species indicating freshwater influence are found at the currently occupied site and at locations where the close relative, A. pycnostachyus var. pycnostachyus, occurs. Also, long-range plans for Bolsa Chica are to increase the tidal influence by establishing a direct connection to the ocean across Bolsa Chica State Beach. The Ballona Wetlands are similarly isolated from a freshwater source and are subject to considerable disturbance. Consequently, we rejected both Bolsa Chica and the Ballona Wetlands as potential reintroduction sites for A. pycnostachyus var. lanosissimus and as critical habitat units.

For critical habitat outside of the historical range, we considered areas from Gaviota State Beach, Santa Barbara County, south to San Diego County. We have included only one critical habitat unit (Carpinteria Marsh) that could be considered outside of the known range of the species in this critical habitat proposal. That location is included because of its proximity to the historical distribution, the initial success of efforts to establish a population there, and the presence of primary constituent elements. Data to support designation of critical habitat elsewhere outside the historic range of Astragalus pycnostachyus var. lanosissimus are limited. In addition, we do not believe introducing A. pycnostachyus var. lanosissimus in the vicinity of Astragalus pycnostachyus var. pychnostachyus is prudent because of the potential for hybridization and dilution of genetic identity between the two varieties. Therefore, we do not believe it is appropriate to designate critical habitat elsewhere outside the historic range of A. pycnostachyus var. lanosissimus.

In selecting areas of proposed critical habitat we made an effort to avoid developed areas, such as housing developments, that are unlikely to contain the primary constituent elements or otherwise contribute to the conservation of Astragalus pycnostachyus var. lanosissimus. However, we did not map critical habitat in sufficient detail to exclude all lands unlikely to contain the primary constituent elements essential for the conservation of A. pycnostachyus var. lanosissimus. Areas within the boundaries of the mapped units, such as buildings, roads, parking lots, railroads, airport runways and other paved areas, lawns, and other urban landscaped areas will not contain any of the primary constituent elements. Federal actions limited to these areas, therefore, would not trigger a section 7 consultation, unless they affect the species and/or primary constituent elements in adjacent critical habitat.

In summary, we selected critical habitat areas that provide for the conservation of Astragalus pycnostachyus var. lanosissimus where it is known to occur, as well as areas suitable for establishment of new Start Printed Page 62933populations. As noted above, establishment of new populations is important to reduce the risk of extirpation from chance catastrophic events. If we determine that areas outside of the boundaries of the designated critical habitat are important for the conservation of this species, we may propose these additional areas as critical habitat in the future.

Special Management Considerations

It is essential to manage the critical habitat areas in a manner that provides for the conservation of Astragalus pycnostachyus var. lanosissimus. This includes not only the immediate area where the species may be present, but an additional area that can provide for normal population fluctuations that may occur in response to natural and unpredictable events. A. pycnostachyus var. lanosissimus is also dependent upon habitat components beyond the immediate areas on which the plant occurs, including the adjacent vegetation communities with which the species is associated, and sufficient areas to support the ecological processes of which the plant's life cycle is a part. These ecological processes include hydrology, pollination, seed dispersal, expansion of distribution, recolonization, and maintenance of natural predator-prey relationships.

Of paramount importance is the maintenance of a pollinator community as Astragalus pycnostachyus var. lanosissimus appears to be suffering from poor seed set (Wilken and Wardlaw 2001). Although self-compatible, A. pycnostachyus var. lanosissimus has a flower structure that suggests a relationship with large insects. In this case, the number of plants in the host plant population (A. pycnostachyus var. lanosissimus) appears to be insufficient in itself to support the pollinator community. Thus, the survival of a pollinator community is dependent upon sufficient natural vegetation beyond the footprint of the rare plant in question, as these other plants are able to sustain the pollinators which are not solely dependent upon the resources of the rare species, yet still provide pollination services to the rare plant. Given the patchiness of suitable habitat for A. pycnostachyus var. lanosissimus in the region under consideration in this proposal, and the lack of data on the minimum size of patches that can support the appropriate pollinators of A. pycnostachyus var. lanosissimus, we believe that all of the remaining natural vegetation within the proposed critical habitat units must be managed to maintain and enhance the value to a pollinator community. Maintenance and enhancement can include eradication of non-native plants, control of non-native insects (especially Argentine ants) and snails, revegetation with native shrubs and annuals, and irrigation as needed.

Because only one extant population of Astragalus pycnostachyus var. lanosissimus remains, Wilken and Wardlaw (2001) provided the following recommendations for experimental introductions of the species into the proposed critical habitat units:

(1) The experimental areas should be free from human incursion, except by researchers and monitors. Exclusion can be accomplished by signs, fencing, and enforcement;

(2) Astragalus pycnostachyus var. lanosissimus plantings should attempt to establish clusters to examine the gradients of conditions that may be present in the critical habitat areas;

(3) Plants should be grown in containers for transplant into experimental population areas, with emphasis on larger containers (one gallon minimum);

(4) Seeds should be collected from as many different plants as possible each year to establish a diverse genetic pool, and propagate individuals from many different collections;

(5) Transplantation of new container stock, germinated yearly, should occur once per year for at least 3 years to achieve a balanced age structure in the new population and to compensate for fluctuating mortality rates; and

(6) A monitoring program should be implemented to achieve specific goals defined prior to introduction of Astragalus pycnostachyus var. lanosissimus. The goals should include, at a minimum: population size; age class structure; survivorship; and reproductive success (i.e., pollination, seed production, seedling survival).

Proposed Critical Habitat Designation

The proposed critical habitat areas described below constitute our best assessment at this time of the areas essential for the conservation of Astragalus pycnostachyus var. lanosissimus. The areas being proposed as critical habitat are: (1) Mandalay, including the site of the extant population at Fifth Street and Harbor Boulevard in Oxnard, Ventura County; (2) McGrath Lake area, McGrath State Beach, California Department of Parks and Recreation (CDPR), Ventura County, and (3) Carpinteria Salt Marsh Reserve run by the University of California, Santa Barbara, Santa Barbara County.

The only site occupied by a natural population of Astragalus pycnostachyus var. lanosissimus is in the Mandalay Unit, located at Fifth Street and Harbor Boulevard in the City of Oxnard. A research population has been initiated at the Mandalay State Beach portion of the unit. Research introductions have also occurred at the Carpinteria Salt Marsh Reserve and McGrath State Beach units. Despite the presence of research populations, we consider all of the units unoccupied except the portion of the Mandalay unit where the natural population occurs. Therefore, we propose to designate currently unoccupied habitat because the conservation of A. pycnostachyus var. lanosissimus requires it. The single extant natural population is likely to be extirpated by direct and indirect effects of the approved development of the North Shore at Mandalay project (i.e., due to inadequate preserve design), or a catastrophic event could eliminate the population regardless of the development. In the absence of suitable off-site locations where the species could be established, it is possible that it could go extinct. The two unoccupied sites proposed for inclusion have been identified through research as the most likely candidates for new populations because the primary constituent elements are present and they can be adequately protected from the threats identified earlier. One site is within the historical range of the species and one is not. We believe the designation of currently unoccupied locations as critical habitat is essential to the conservation of A. pycnostachyus var. lanosissimus.

Also, our evaluation of Astragalus pycnostachyus var. lanosissimus has shown that suitable habitat areas are scarce within the historical range of the species. The combination of associated plant species, high groundwater, low salinity, and other primary constituent elements has either been removed by urbanization, agriculture, oil field development, or flood control projects. Other areas within the historical range were considered and rejected, and areas outside of the historical range were limited in scope and only one was included. The scarcity of suitable habitat has also contributed to the need to propose areas currently unoccupied by A. pycnostachyus var. lanosissimus as critical habitat.

In summary, we propose to designate approximately 170 ha (420 ac) of land in three units as critical habitat for Astragalus pycnostachyus var. lanosissimus. The approximate areas of proposed critical habitat by land ownership are shown in Table 1. Private lands comprise approximately 33 percent of the proposed critical habitat; and State lands comprise 67 percent. No Start Printed Page 62934Federal lands are proposed for inclusion.

Table 1.—Approximate Areas in Hectares (ha) and Acres (ac) of Proposed Critical Habitat for Astragalus pycnostachyus var. lanosissimus by Land Ownership

Unit namePrivateStateFederalTotal
Mandalay Unit42 ha (104 ac)20 ha (49 ac)0 ha (0 ac)62 ha (153 ac)
McGrath Unit14 ha (35 ac)11 ha (27 ac)0 ha (0 ac)25 ha (62 ac)
Carpenteria Salt Marsh Unit0 ha (0 ac)83 ha (205 ac)0 ha (0 ac)83 ha (205 ac)
Total56 ha (139 ac)114 ha (281 ac)0 ha (0 ac)170 ha (420 ac)
Note: Approximate acres have been converted to hectares (1 ha = 2.47 ac). Based on the level of precision of mapping of each unit, hectares and acres greater than 10 have been rounded to the nearest whole number. Totals are sums of units.

The proposed critical habitat areas constitute our best assessment at this time of the areas that are essential for the conservation of Astragalus pycnostachyus var. lanosissimus. The three critical habitat units include the only known location where the species currently occurs and two other sites with high potential to support the species. A brief description of each critical habitat unit is given below:

Mandalay Unit

The Mandalay Unit is located on both sides of Harbor Boulevard and north of Fifth Street in the city of Oxnard, Ventura County. On the east side of Harbor Boulevard, the unit extends north from Fifth Street to the Edison Canal, and east from Harbor Boulevard to the Edison Canal. The western portion on Mandalay State Beach includes the area north of Fifth Street, west of Harbor Boulevard, east of an access road that bisects the park, and south of a point halfway between where Harbor Boulevard crosses the Edison Canal and Fifth Street. This unit covers 62 ha (152 ac) and is important because it contains the only known location where Astragalus pycnostachyus var. lanosissimus naturally exists and one research population. Additional area is included beyond the footprint of the extant population to provide area for expansion of the population and to preserve habitat that may support important pollinators.

The eastern portion of this unit is part of a pending development called the North Shore at Mandalay. The project includes a 2-ha (5-ac) preserve for Astragalus pycnostachyus var. lanosissimus; however, we believe it is unlikely that the species will persist on the site in the long-term, despite proposed management measures in the Memorandum of Understanding between the developer and the California Department of Fish and Game (CDFG), and a settlement agreement between the developer and the California Native Plant Society. The population will be mostly isolated from surrounding vegetation, and the ecological processes sustaining the population may be interrupted. Also, the project may allow increased human intrusion, provide habitat for non-native plants and snails, alter the hydrologic regime, and introduce pesticides and fertilizers that adversely affect the plants.

The portion of this unit on Mandalay State Beach is identified by Wilken and Wardlaw (2001) as a potential site for establishing a new population of Astragalus pycnostachyus var. lanosissimus. In 2002, the first efforts at establishing a new population were begun. The proximity of Mandalay State Beach to the extant population indicates that some natural exchange of seeds or pollen could take place if a second population were established at Mandalay State Beach. The site contains most of the primary constituent elements defined for A. pycnostachyus var. lanosissimus critical habitat, although Wilken and Wardlaw (2001) note some dense cover of non-native annuals. Also, using their five parameters, Wilken and Wardlaw (2001) ranked the Mandalay State Beach portion of this unit as one of the most similar to the natural occurrences of A. pycnostachyus var. lanosissimus and the closely related A. pycnostachyus var. pycnostachyus, and hence one of the top candidates for establishing a new population.

We discussed designation of critical habitat in this area with the CDPR. Because the area is currently operated by that agency and is public land, there is opportunity to work with the state to develop strategies to introduce Astragalus pycnostachyus var. lanosissimus and to form manageable reserves.

As discussed above, currently unoccupied areas (or those with research populations) that support the primary constituent elements are essential for the conservation of Astragalus pycnostachyus var. lanosissimus because they provide additional areas separate from the existing population of A. pycnostachyus var. lanosissimus, into which it can be introduced. We believe it is extremely important to have additional area to reduce the likelihood that the species may become extinct as the result of a catastrophic event, such as a fire or disease, that can affect an isolated population.

McGrath Unit

The site within McGrath Beach State Park is adjacent to McGrath Lake on the leeward side of the southern end of the lake, between the lake and Harbor Boulevard. A second site to the north, just south of the existing camping facilities, was examined but considered unsuitable by Wilken and Wardlaw (2001) due to frequent use by the public and large stands of non-native vegetation. The unit covers 25 ha (62 ac), of which 14 ha (35 ac) is privately owned.

Of the sites they examined, Wilken and Wardlaw (2001) identify the McGrath Lake area as having the best combination of characteristics similar to that of the extant population of Astragalus pycnostachyus var. lanosissimus and its closest relative, A. pycnostachyus var. pycnostachyus based upon five parameters (i.e., dominant vegetation composed of a shrub canopy less than 75 percent; absence of competitive annual or perennial exotic plants; water table in close proximity; soil types consistent with that at the site of the extant population; and native habitat supporting pollinators).

The CDPR agreed to allow the CDFG and the RSABG to establish a research population on this site. The effort is still in its early stages and no conclusive data has yet been retrieved. We also discussed the proposed designation with representatives of the CDPR. Because part of this unit is currently operated by the CDPR and is public land, there is opportunity to work with Start Printed Page 62935the state to develop strategies to introduce Astragalus pycnostachyus var. lanosissimus and to form manageable reserves. This unit is also one of the last known places where the species was observed growing naturally, and it is close to the extant population and shares many of the broader climatic and habitat features of that site.

As discussed above, currently unoccupied units (or those with research populations underway) are essential for the conservation of Astragalus pycnostachyus var. lanosissimus because they provide additional areas separate from the existing population of A. pycnostachyus var. lanosissimus into which it can be established. We believe it is important to have additional units to reduce the likelihood that the species may become extinct as the result of a catastrophic event. Additional geographically separated units can provide protection from chance events such as disease that can destroy the only remaining population.

Carpinteria Salt Marsh Unit

The Carpenteria Salt Marsh Unit extends from the Southern Pacific Railroad tracks south and west to Sand Point Drive and Santa Monica Creek. It lies north and west of Sandyland Cove Road and north of Avenue del Mar. The area is identified on the U.S.G.S. 7.5-minute Carpinteria quadrangle as “El Estero” and covers 83 ha (206 ac), which is all State-owned.

Much of this area may be saltmarsh habitat that is unsuitable for Astragalus pycnostachyus var. lanosissimus; however, the habitats surrounding the area where a research population has been established may support the pollinators and other ecological processes that A. pycnostachyus var. lanosissimus requires. The preliminary introduction of the plant occurred in a portion of the unit near the intersection of Sandyland Cove Road and the railroad tracks. We do not have recent data on the introduced plants' status. Wilken and Wardlaw (2001) identify this area as one of those ranking highest for A. pycnostachyus var. lanosissimus using the five parameters of habitat suitability they devised. These parameters closely parallel the primary constituent elements, so we believe that most, if not all, of the elements are represented at this site. The diverse native vegetation present may support a good pollinator community; however, a residential community is nearby and non-native snails were observed in the area.

This site in Santa Barbara County is near the range of the species as predicted by the historical collections and described by Skinner and Pavlik (1994), who list the known counties as Ventura, Los Angeles, and Orange. The regulations state that we do not designate critical habitat in areas outside the geographic area occupied by the species unless the best available scientific and commercial data demonstrate that the unoccupied areas are essential for the conservation needs of the species (50 CFR 424.12(e)). We have included it here because of the high potential for successful establishment of a new population per Wilken and Wardlaw's (2001) findings. Also, given the limited availability of suitable sites within the known range and uncertainty surrounding the success of any attempt to establish new populations of a rare plant where it does not already occur, we believe this site is essential for the conservation of Astragalus pycnostachyus var. lanosissimus.

As discussed above, additional, currently unoccupied, units (or those with research populations) are essential for the conservation of Astragalus pycnostachyus var. lanosissimus because they provide additional areas separate from the existing population for A. pycnostachyus var. lanosissimus into which it can be introduced. We believe it is extremely important to have additional units to reduce the likelihood that the species may become extinct as the result of a catastrophic event. Additional geographically separated units can provide protection from chance events such as disease that can destroy the only remaining population.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, permit, or carry out do not destroy or adversely modify critical habitat. Destruction or adverse modification of critical habitat occurs when a Federal action directly or indirectly alters critical habitat to the extent that it appreciably diminishes the value of critical habitat for the conservation of the species. Individuals, organizations, States, local governments, and other non-Federal entities are affected by the designation of critical habitat only if their actions occur on Federal lands, require a Federal permit, license, or other authorization, or involve Federal funding.

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 designated or proposed. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist Federal agencies in eliminating conflicts that may be caused by their proposed actions. The conservation measures in a conference report are advisory.

We may issue a formal conference report, if requested by the Federal action agency. Formal conference reports include an opinion that is prepared according to 50 CFR 402.14, as if the species was listed or critical habitat designated. We may adopt the formal conference report as the biological opinion when the species is listed or critical habitat designated, if no substantial new information or changes in the action alter the content of the opinion (50 CFR 402.10(d)).

If a species is listed or critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of 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 Federal action agency would ensure that the permitted actions do not destroy or adversely modify critical habitat.

If we issue a biological opinion concluding that a project is likely to result in the destruction or adverse modification of critical habitat, we also provide “reasonable and prudent alternatives” to the project, if any are identifiable. Reasonable and prudent alternatives are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Director believes would avoid the likelihood of jeopardizing the continued existence of listed species, or resulting in the destruction or adverse modification of critical habitat. Start Printed Page 62936

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions under certain circumstances, including instances where critical habitat is subsequently designated and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation or conference with us on actions for which formal consultation has been completed, if those actions may affect designated critical habitat, or adversely modify or destroy proposed critical habitat.

We may issue a formal conference report if requested by a Federal agency. Formal conference reports on proposed critical habitat contain an opinion that is prepared according to 50 CFR 402.14, as if critical habitat were designated. We may adopt the formal conference report as the biological opinion when the critical habitat is designated, if no substantial new information or changes in the action alter the content of the opinion (see 50 CFR 402.10(d)).

Activities on Federal lands that may affect Astragalus pycnostachyus var. lanosissimus 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 (Corps) under section 404 of the Clean Water Act, a section 10(a)(1)(B) permit from the Service, or some other Federal action, including funding (e.g., Federal Highway Administration, Environmental Protection Agency, or Federal Emergency Management Authority funding), would also 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.

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, all should understand that critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery. Areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) of the Act jeopardy standard and the prohibitions of section 9 of the Act, as determined on the basis of the best available information at the time of the action. 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.

To properly portray the effects of critical habitat designation, we must first compare the section 7 requirements for actions that may affect critical habitat with the requirements for actions that may affect a listed species. Section 7 ensures that actions funded, authorized, or carried out by Federal agencies are not likely to jeopardize the continued existence of a listed species, or destroy or adversely modify the listed species' critical habitat. Actions likely to jeopardize the continued existence of a species are those that would appreciably reduce the likelihood of the species' survival and recovery. Actions likely to destroy or adversely modify critical habitat are those that would appreciably reduce the value of critical habitat for the survival and recovery of the listed species.

Common to both definitions is an appreciable detrimental effect on the recovery of a listed species. Given the similarity of these definitions, actions likely to destroy or adversely modify critical habitat would almost always result in jeopardy to the species concerned, particularly when the area of the proposed action is occupied by the species concerned. Designation of critical habitat in the only area occupied by Astragalus pycnostachyus var. lanosissimus is not likely to result in a regulatory requirement above that already in place due to the presence of the listed species. Designation of critical habitat in areas not occupied by A. pycnostachyus var. lanosissimus may result in an additional regulatory requirement when a Federal nexus exists.

Section 4(b)(8) of the Act requires us to evaluate briefly 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 would be those that alter the primary constituent elements to the extent that the value of critical habitat for the conservation of Astragalus pycnostachyus var. lanosissimus is appreciably reduced. We note that such activities may also jeopardize the continued existence of the species.

Activities that, when carried out, funded, or authorized by a Federal agency, may directly or indirectly destroy or adversely modify critical habitat of Astragalus pycnostachyus var. lanosissimus include, but are not limited to the following:

(1) Alteration of existing hydrology by lowering the groundwater table through surface changes or pumping of groundwater, or redirection of freshwater sources through diverting surface waters (e.g., channelization);

(2) Compaction of soil through the establishment of trails or roads;

(3) Placement of structures or hardscape (e.g., pavement, concrete, non-native rock or gravel);

(4) Removal of native vegetation that reduces native plant cover to below 50 percent;

(5) Introduction of non-native vegetation or creation of conditions that encourage the growth of non-natives, such as irrigation, landscaping, soil disturbance, addition of nutrients, etc.;

(6) Use of pesticides or other chemicals that can directly affect Astragalus pycnostachyus var. lanosissimus, its associated native vegetation, or pollinators;

(7) Introduction of non-native snails or Argentine ants or creation of conditions favorable to these species, through landscaping with non-native groundcover plants such as iceplant, irrigation, or other activities that encourage populations of these non-native species that have been detrimental to the existing population;

(8) Activities that isolate the plants or their populations from neighboring vegetation or open space and thus interfere with ecological processes that rely upon connectivity with adjacent habitat, such as maintaining pollinator populations and seed dispersal; and

(9) Soil disturbance that damages or interferes with the seedbank of the species, such as discing, tilling, grading, removal, or stockpiling.

Designation of critical habitat could affect the following agencies and/or actions: development on private lands requiring permits from Federal agencies, such as authorization from the Corps, pursuant to section 404 of the Clean Water Act, or a section 10(a)(1)(B) permit from the Service, or some other Federal action that includes Federal funding that will subject the action to the section 7 consultation process (e.g., from the Federal Highway Administration, Federal Emergency Management Agency, or the Department of Housing and Urban Development); Start Printed Page 62937military activities of the U.S. Department of Defense (Navy) on their lands or lands under their jurisdiction; the release or authorization of release of biological control agents by the U.S. Department of Agriculture; regulation of activities affecting point source pollution discharges into waters of the United States by the Environmental Protection Agency under section 402 of the Clean Water Act; construction of communication sites licensed by the Federal Communications Commission; and authorization of Federal grants or loans. Where Federally listed wildlife species occur on private lands proposed for development, any habitat conservation plans (HCPs) submitted by the applicant to secure an incidental take permit pursuant to section 10(a)(1)(B) of the Act would be subject to the section 7 consultation process, a process that would consider all federally-listed species affected by the HCP, including plants.

Several other species that are listed under the Act have been documented to occur in the same general areas as the current distribution of Astragalus pycnostachyus var. lanosissimus. These include brown pelican (Pelecanus occidentalis), western snowy plover (Charadrius alexandrinus nivosus), California least tern (Sterna antillarum browni), light-footed clapper rail (Rallus longirostris levipes), and Cordylanthus maritimus ssp. maritimus (salt marsh bird's beak).

If you have questions regarding whether specific activities will likely constitute adverse modification of critical habitat, contact the Field Supervisor, Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section). Requests for copies of the regulations on listed wildlife and inquiries about prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Portland Regional Office, 911 NE 11th Avenue, Portland, OR 97232-4181 (503/231-6131, FAX 503/231-6243).

Relationship to Habitat Conservation Plans

Currently, no HCPs exist that include Astragalus pycnostachyus var. lanosissimus as a covered species. 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. 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 listed plants is not prohibited by the Act, listed plant species may also be covered in an HCP for wildlife species.

In the event that future HCPs are developed within the boundaries of proposed or designated critical habitat, we will work with applicants to ensure that the HCPs provide for protection and management of habitat areas essential for the conservation of this species. This will be accomplished by either directing development and habitat modification to nonessential areas, or appropriately modifying activities within essential habitat areas so that such activities will not adversely modify the primary constituent elements. The HCP development process would provide an opportunity for more intensive data collection and analysis regarding the use of particular habitat areas by Astragalus pycnostachyus var. lanosissimus. The process would also enable us to conduct detailed evaluations of the importance of such lands to the long-term survival of the species in the context of constructing a system of interlinked habitat blocks configured to promote the conservation of the species through application of the principles of conservation biology.

We will provide technical assistance and work closely with applicants throughout the development of any future HCPs to identify lands essential for the long-term conservation of Astragalus pycnostachyus var. lanosissimus and appropriate management for those lands. Furthermore, we will complete intra-Service consultation on our issuance of section 10(a)(1)(B) permits for these HCPs to ensure permit issuance will not destroy or adversely modify critical habitat.

Economic Analysis and Exclusions Under Section 4(b)(2)

Section 4(b)(2) of the Act requires that we designate critical habitat on the basis of the best scientific and commercial information available, and that we consider the economic and other relevant impacts of designating a particular area as critical habitat. We may exclude areas from critical habitat designation if the benefits of exclusion outweigh the benefits of designation, provided the exclusion will not result in the extinction of the species.

We will conduct an analysis of the economic impacts of designating these proposed areas as critical habitat prior to a final determination. When completed, we will announce the availability of the draft economic analysis with a notice in the Federal Register, and we will open a comment period on the draft economic analysis and the proposed rule at that time.

Public Comments Solicited

We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule are hereby solicited. Comments are sought particularly concerning:

(1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefits of designation will outweigh any threats to the species due to designation;

(2) Specific information on the amount and distribution of Astragalus pycnostachyus var. lanosissimus habitat, and what habitat is essential to the conservation of the species and why;

(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;

(4) Any foreseeable economic or other impacts resulting from the proposed designation of critical habitat, in particular, any impacts on small entities or families;

(5) Economic and other values associated with designating critical habitat for Astragalus pycnostachyus var. lanosissimus such as those derived from non-consumptive uses (e.g., hiking, camping, bird-watching, enhanced watershed protection, improved air quality, increased soil retention, “existence values,” and reductions in administrative costs);

(6) The methodology we might use, under section 4(b)(2) of the Act, in determining if the benefits of excluding an area from critical habitat outweigh the benefits of specifying the area as critical habitat; and

(7) Whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments.

If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods: (1) You may mail comments to the Field Supervisor at the address provided in the ADDRESSES section above; (2) You may also comment via the Internet to fw1venturamilkvetch@r1.fws.gov. Please submit internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Start Printed Page 62938Please also include “Attn: RIN-1018-AI21” and your name and return address in your internet message. If you do not receive a confirmation from the system that we have received your internet message, contact us directly by calling our Ventura Fish and Wildlife Office at phone number 805-644-1766. Please note that the Internet address fw1venturamilkvetch@r1.fws.gov will be closed out at the termination of the public comment period; (3) You may hand-deliver comments to our Ventura Fish and Wildlife Office (see ADDRESSES section above).

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR 34270), we will solicit the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of such review is to ensure listing decisions are based on scientifically sound data, assumptions, and analyses. We will send these peer reviewers copies of this proposed rule immediately following publication in the Federal Register. We will invite these peer reviewers to comment, during the public comment period, on the specific assumptions and conclusions regarding the proposed designation of critical habitat.

We will consider all comments and information received during the 60-day comment period on this proposed rule during preparation of a final rulemaking. Accordingly, the final determination may differ from this proposal.

Public Hearings

The Endangered Species Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days of the date of publication of the proposal in the Federal Register. Such requests must be made in writing and be addressed to the Field Supervisor (see ADDRESSES section). We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings in the Federal Register and local newspapers at least 15 days prior to the first hearing.

Clarity of the Rule

Executive Order 12866 requires each agency to write regulations and notices that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the proposed rule clearly stated? (2) Does the proposed rule contain technical jargon that interferes with the clarity? (3) Does the format of the proposed rule (grouping and order of the sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the description of the notice in the SUPPLEMENTARY INFORMATION section of the preamble helpful in understanding the notice? (5) What else could we do to make this proposed rule easier to understand?

Send a copy of any comments that concern how we could make this notice easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may e-mail your comments to this address: Exsec@ios.doi.gov.

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order 12866, this document is a significant rule and was reviewed by the Office of Management and Budget (OMB). The Service is preparing a draft economic analysis of this proposed action. The Service will use 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 and excluding any area from critical habitat if it is determined that the benefits of such exclusion outweigh the benefits of specifying such areas as part of the critical habitat, unless failure to designate such area as critical habitat will lead to the extinction of Astragalus pycnostachyus var. lanosissimus. This analysis will be available for public comment before finalizing this designation. The availability of the draft economic analysis will be announced in the Federal Register.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

This discussion is based upon the information regarding potential economic impact that is available to the Service at this time. This assessment of economic effect may be modified prior to final rulemaking based upon development and review of the economic analysis being prepared pursuant to section 4(b)(2) of the Act and E.O. 12866. This analysis is for the purposes of compliance with the Regulatory Flexibility Act and does not reflect the position of the Service on the type of economic analysis required by New Mexico Cattle Growers Assn. v. U.S. Fish & Wildlife Service, 248 F.3d 1277 (10th Cir. 2001).

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic effect on a substantial number of small entities. SBREFA also amended the Regulatory Flexibility Act to require a certification statement. In today's rule, we are certifying that this rule will not have a significant effect on a substantial number of small entities. The following discussion explains our rationale.

According to the Small Business Administration (http://www.sba.gov/​size/​), small entities include small organizations, such as independent non-profit 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. Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service Start Printed Page 62939businesses 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 consider the types of activities that might trigger regulatory impacts under this rule as well as the 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.

In determining whether this rule could “significantly affect a substantial number of small entities,” we consider the number of small entities affected within particular types of economic activities and whether critical habitat could potentially affect a “substantial number” of small entities in counties supporting critical habitat areas. While SBREFA does not explicitly define “substantial number,” the Small Business Administration, as well as other Federal agencies, have interpreted this to represent an impact on 20 percent or greater of the number of small entities in any industry. In some circumstances, especially with critical habitat designations of limited extent, we may aggregate across all industries and consider whether the total number of small entities affected is substantial. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Designation of critical habitat only affects activities conducted, funded, or permitted by Federal agencies. Some kinds of activities are unlikely to have any Federal involvement and so will not be affected by critical habitat designation.

Designation of critical habitat only affects activities conducted, funded, or permitted by Federal agencies; non-Federal activities are not affected by the designation if they lack a Federal nexus. In areas where the species is present, Federal agencies funding, permitting, or implementing activities are already required to avoid jeopardizing the continued existence of Astragalus pycnostachyus var. lanosissimus through consultation with us under section 7 of the Act. If this critical habitat designation is finalized, Federal agencies must also ensure that their activities do not destroy or adversely modify designated critical habitat through consultation with us. However, we do not believe this will result in any additional regulatory burden on Federal agencies or their applicants where the species is present because conservation already would be required due to the presence of a listed species.

In unoccupied areas, or areas of uncertain occupancy, designation of critical habitat could trigger additional review of Federal activities under section 7 of the Act, and may result in additional requirements on Federal activities to avoid destroying or adversely modifying critical habitat. Because Astragalus pycnostachyus var. lanosissimus has only been listed since June 2001, there have been no formal consultations involving the species. Therefore, for the purposes of this review and certification under the Regulatory Flexibility Act, we are assuming that any future consultations in the areas proposed for critical habitat which are considered unoccupied will be due to the critical habitat designation. Should a federally funded, permitted, or implemented project be proposed that may affect designated critical habitat, we will work with the Federal action agency and any applicant, through section 7 consultation, to identify ways to implement the proposed project while minimizing or avoiding any adverse effect to the species or critical habitat. In our experience, the vast majority of such projects can be successfully implemented with at most minor changes that avoid significant economic impacts to project proponents.

The majority of the areas proposed for critical habitat are state-managed public lands, for which projected land uses are resource protection, recreation, research, and education. Additionally, the private lands under consideration include the proposed North Shore development in the Mandalay unit. On non-federal lands, activities that lack federal involvement would not be affected by the critical habitat designation. Activities of an economic nature that are likely to occur on non-federal lands in the area encompassed by this proposed designation are primarily commercial or residential development. None of the developments recently approved by the local jurisdictions have any Federal involvement, and we are not aware of a significant number of future activities on any of the proposed units that would require Federal permitting or authorization; therefore, we conclude that the proposed rule would not affect a substantial number of small entities.

In general, two different mechanisms in section 7 consultations could lead to additional regulatory requirements. First, if we conclude, in a biological opinion, that a proposed action is likely to jeopardize the continued existence of a species or adversely modify its critical habitat, we can offer “reasonable and prudent alternatives.” Reasonable and prudent alternatives are alternative actions that can be implemented in a manner consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that would avoid jeopardizing the continued existence of listed species or resulting in adverse modification of critical habitat. A Federal agency and an applicant may elect to implement a reasonable and prudent alternative associated with a biological opinion that has found jeopardy or adverse modification of critical habitat. An agency or applicant could alternatively choose to seek an exemption from the requirements of the Act or proceed without implementing the reasonable and prudent alternative. However, unless an exemption were obtained, the Federal agency or applicant would be at risk of violating section 7(a)(2) of the Act if it chose to proceed without implementing the reasonable and prudent alternatives.

Second, if we find that a proposed action is not likely to jeopardize the continued existence of a listed animal species, we may identify reasonable and prudent measures designed to minimize the amount or extent of take and require the Federal agency or applicant to implement such measures through non-discretionary terms and conditions. However, the Act does not prohibit the take of listed plant species or require terms and conditions to minimize adverse effect to critical habitat. We may also identify discretionary conservation recommendations designed to minimize or avoid the adverse effects of a proposed action on listed species or critical habitat, help implement recovery plans, or develop information that could contribute to the recovery of the species.

Based on our experience with section 7 consultations for all listed species, virtually all projects—including those that, in their initial proposed form, would result in jeopardy or adverse modification determinations in section 7 consultations—can be implemented successfully with, at most, the adoption of reasonable and prudent alternatives. These measures, by definition, must be economically feasible and within the scope of authority of the Federal agency involved in the consultation. As we have no consultation history for Astragalus pycnostachyus var. lanosissimus, we can only describe the general kinds of actions that may be identified in future reasonable and prudent alternatives. These are based on Start Printed Page 62940our understanding of the needs of the species and the threats it faces, especially as described in the final listing rule and in this proposed critical habitat designation, as well as our experience with similar listed plants in California. In addition, the State of California listed A. pycnostachyus var. lanosissimus as an endangered species under the California Endangered Species Act of 1978, and we have also considered the kinds of actions required through State consultations for this species. The kinds of actions that may be included in future reasonable and prudent alternatives include conservation set-asides, management of competing non-native species, restoration of degraded habitat, construction of protective fencing, and regular monitoring. These measures are not likely to result in a significant economic impact to project proponents.

As required under section 4(b)(2) of the Act, we will conduct an analysis of the potential economic impacts of this proposed critical habitat designation, and will make that analysis available for public review and comment before finalizing this designation. However, court deadlines require us to publish this proposed rule before the economic analysis can be completed. In the absence of this economic analysis, we have reviewed our previously published analyses of the likely economic impacts of designating critical habitat for other California plant species, such as Chorizanthe robusta var. hartwegii (Scotts Valley spineflower). Like Astragalus pycnostachyus var. lanosissimus, C. robusta var. hartwegii is a native species restricted to certain specific habitat types along the coast of California and may require similar protective and conservation measures. C. robusta var. hartwegii also occurs close to the coast, in an area experiencing residential and commercial development pressure. Our high-end estimate of the economic effects of designating one critical habitat unit of C. robusta var. hartwegii ranged from $82,500 to $287,500 over ten years.

We believe that the economic effects of the proposed rule for Astragalus pycnostachyus var. lanosissimus will be less than those identified for other California plant critical habitat designations, such as Chorizanthe robusta var. hartwegii, because there is limited private land involved and the plant occurs naturally in only one of the proposed units. The designation of critical habitat in areas not occupied by A. pycnostachyus var. lanosissimus could result in extra costs involved with consultations that may not have occurred were it not for the designations; however, one unit is entirely State-owned and the burden of consultation should not cause economic hardship on private entities.

Efforts to establish Astragalus pycnostachyus var. lanosissimus on unoccupied sites would be mostly funded by Federal, State, and non-governmental organizations, and would likely not require private funding. Consequently, we believe that the economic effects of the proposed rule for A. pycnostachyus var. lanosissimus are likely to be minimal, similar to those identified for Chorizanthe robusta var. hartwegii.

In summary, we have concluded that this proposed rule would not result in a significant economic effect on a substantial number of small entities. The proposed designation includes one privately-owned parcel for which a project has been proposed and for which there is no Federal involvement or section 7 consultation required. This rule would result in project modifications only when proposed Federal activities would destroy or adversely modify critical habitat. While this may occur, it is not expected to affect any small entities. Even if a small entity is affected, we do not expect it to result in a significant economic impact, as the measures included in reasonable and prudent alternatives must be economically feasible and consistent with the proposed action. The kinds of measures we anticipate we would recommend can usually be implemented at low cost. Therefore, we are certifying that the proposed designation of critical habitat for Astragalus pycnostachyus var. lanosissimus will not have a significant economic impact on a substantial number of small entities, and an initial regulatory flexibility analysis is not required.

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. Although this rule is a significant regulatory action under Executive Order 12866, 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.)

The Service will use the economic analysis to evaluate consistency with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.).

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 proposing to designate approximately 170 ha (420 ac) of lands in Santa Barbara and Ventura counties, California as critical habitat for Astragalus pycnostachyus var. lanosissimus in a takings implications assessment. This preliminary assessment concludes that this proposed rule does not pose significant takings implications.

Federalism

In accordance with Executive Order 13132, this rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior policy, we requested information from, and coordinated development of this critical habitat designation with, appropriate State resource agencies in California. The designation of critical habitat in areas currently occupied by Astragalus pycnostachyus var. lanosissimus imposes no additional restrictions beyond those currently in place and, therefore, has little incremental impact on State and local governments and their activities. The designation of critical habitat in unoccupied areas may require consultation under section 7 of the Act on non-Federal lands (where a Federal nexus occurs) that might otherwise not have occurred.

The designation may have some benefit to the CDPR in that the areas essential to the conservation of this species are more clearly defined, and the primary constituent elements of the habitat necessary to the survival of this species are specifically identified. While this definition and identification does not alter where and what Federally sponsored activities may occur, it may assist 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 Department of the Interior's Office of the Solicitor has determined that this rule does not unduly burden the judicial system and does meet the requirements of sections 3(a) and 3(b)(2) of the Order. We are proposing to designate critical habitat in accordance with the provisions of the Endangered Start Printed Page 62941Species Act. The 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 pycnostachyus var. lanosissimus.

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

We have determined that an Environmental Assessment and/or an Environmental Impact Statement as defined by the National Environmental Policy Act of 1969 need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act, as amended. A notice outlining our reason for this determination was published in the Federal Register on October 25, 1983 (48 FR 49244). This proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment.

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations With Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with Federally recognized Tribes on a Government-to-Government basis. The proposed designation of critical habitat for Astragalus pycnostachyus var. lanosissimus does not contain any Tribal lands or lands that we have identified as impacting Tribal trust resources.

References Cited

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

Author

The primary author of this proposed rule is Rick Farris, Ventura Fish and Wildlife Office (see ADDRESSES section).

Start List of Subjects

List of Subjects in 50 CFR Part 17

End List of Subjects

Proposed Regulation Promulgation

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

Start Part

PART 17—[AMENDED]

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

Start Authority

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4205; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

End Authority

2. In § 17.12(h) revise the entry for Astragalus pycnostachyus var. lanosissimus under “Flowering Plants” to read as follows:

Endangered and threatened plants.
* * * * *

(h) * * *

SpeciesHistoric rangeFamilyStatusWhen listedCritical habitatSpecial rules
Scientific nameCommon name
Flowering Plants
*         *         *         *         *         *         *
Astragalus pycnostachyus var. lanosissimusVentura marsh milk-vetchU.S.A. (CA)Fabaceae—PeaE70817.96(b)NA

3. In § 17.96, amend paragraph (a) by adding an entry for Astragalus pycnostachyus var. lanosissimus in alphabetical order under Family Fabaceae to read as follows:

Critical habitat—plants.

(a) * * *

Family Fabaceae: Astragalus pycnostachyus var. lanosissimus (Ventura marsh milk-vetch).

(1) Critical habitat units are depicted for Santa Barbara and Ventura counties, California, on the maps below.

(2) The primary constituent elements of critical habitat for Astragalus pycnostachyus var. lanosissimus are the habitat components that provide:

(i) Vegetation cover of at least 50 percent but not exceeding 75 percent, consisting primarily of known associated native species, including but not limited to, Baccharis salicifolia, Baccharis pilularis, Salix lasiolepis, Lotus scoparius, and Ericameria ericoides;

(ii) Low densities of non-native annual plants and shrubs, not exceeding 25 percent cover (combined with the minimum 50 percent native cover requirement, total cover of natives and non-natives should not exceed 75 percent);

(iii) The presence of a high water table, either fresh or brackish, as evidenced by the presence of channels, sloughs, or depressions that may support stands of Salix lasiolepis, Typha spp., and Scirpus spp.;

(iv) Soils that are fine-grained, composed primarily of sand with some clay and silt, yet are well-drained; and

(v) Soils that do not exhibit a white crystalline crust that would indicate saline or alkaline conditions.

(3) Critical habitat does not include existing features and structures, such as buildings, roads, aqueducts, railroads, airport runways and buildings, other paved areas, lawns, and other urban landscaped areas not containing one or more of the primary constituent elements.

(4) Critical Habitat Map Units.

(i) Data layers defining map units were created on a base of USGS 7.5′ quadrangles, and proposed critical habitat units were then mapped using Universal Transverse Mercator (UTM) coordinates.

(5) McGrath and Mandalay Units. Ventura County, California.

(i) Mandalay Unit A. From USGS 1:24,000 quadrangle map Oxnard, lands bounded by the following UTM zone 11 NAD83 coordinates (E,N): 293381, 3786370; 293036, 3787170; 292994, 3787290; 292974, 3787330; 292995, 3787330; 293017, 3787330; 293122, 3787270; 293269, 3787190; 293331, 3787150; 293362, 3787140; 293399, 3787130; 293570, 3787080; 293640, Start Printed Page 629423787050; 293665, 3787040; 293686, 3787020; 293699, 3786990; 293707, 3786960; 293701, 3786620; 293713, 3786580; 293732, 3786540; 293760, 3786520; 293851, 3786460; 293903, 3786420; 293928, 3786380; 293936, 3786360; 293381, 3786370.

(ii) Mandalay Unit B. From USGS 1:24,000 quadrangle map Oxnard, lands bounded by the following UTM zone 11 NAD83 coordinates (E,N): 293352, 3786380; 293044, 3786380; 292798, 3786960; 292761, 3787040; 293070, 3787030; 293352, 3786380.

(iii) McGrath Unit. From USGS 1:24,000 quadrangle map Oxnard, lands bounded by the following UTM zone 11 NAD83 coordinates (E,N): 292406, 3788600; 292474, 3788440; 292752, 3787790; 292716, 3787780; 292704, 3787770; 292702, 3787770; 292717, 3787730; 292718, 3787720; 292715, 3787710; 292692, 3787680; 292725, 3787600; 292530, 3787600; 292415, 3787630; 292394, 3787670; 292400, 3787690; 292403, 3787710; 292407, 3787720; 292412, 3787770; 292412, 3787800; 292412, 3787820; 292409, 3787840; 292401, 3787900; 292375, 3787940; 292348, 3787960; 292338, 3787980; 292338, 3788000; 292343, 3788010; 292353, 3788030; 292358, 3788040; 292360, 3788050; 292360, 3788060; 292354, 3788070; 292338, 3788070; 292326, 3788090; 292322, 3788120; 292313, 3788150; 292310, 3788170; 292312, 3788230; 292309, 3788250; 292301, 3788260; 292302, 3788280; 292304, 3788290; 292308, 3788300; 292311, 3788320; 292307, 3788330; 292308, 3788350; 292310, 3788380; 292310, 3788390; 292310, 3788400; 292311, 3788420; 292306, 3788450; 292305, 3788480; 292301, 3788490; 292295, 3788500; 292297, 3788520; 292304, 3788550; 292306, 3788560; 292406, 3788600.

(iv) Map of McGrath and Mandalay Units Follows:

Start Printed Page 62943

Start Printed Page 62944

(6) Carpinteria Salt Marsh. Santa Barbara and Ventura counties, California.

(i) Carpinteria Salt Marsh Unit A. Santa Barbara County, California. From USGS 1:24,000 quadrangle map Carpinteria, lands bounded by the following UTM zone 11 NAD83 coordinates (E,N): 266039, 3810060; 266166, 3810060; 266335, 3810050; 266449, 3810040; 266521, 3810040; 266572, 3810030; 266621, 3810010; 266711, 3809980; 266784, 3809950; 266912, 3809880; 267485, 3809530; 267463, 3809500; 267453, 3809470; 267428, 3809440; 267403, 3809390; 267381, 3809360; 267343, 3809300; 267290, 3809250; 267255, 3809190; 267243, 3809170; 267214, 3809160; 267185, 3809170; 267148, 3809200; 267094, 3809240; 267058, 3809260; 267023, 3809260; 266973, 3809260; 266932, 3809250; 266889, 3809250; 266813, 3809250; 266793, 3809260; 266772, 3809270; 266720, 3809290; 266690, 3809300; 266655, 3809310; 266644, 3809330; 266645, 3809350; 266602, 3809360; 266580, 3809380; 266544, 3809420; 266498, 3809480; 266456, 3809530; 266408, 3809590; 266356, 3809650; 266320, 3809690; 266264, 3809750; 266206, 3809810; 266162, 3809860; 266122, 3809900; 266081, 3809940; 266053, 3809960; 266042, 3809980; 266033, 3809990; 266032, 3810010; 266037, 3810060; 266039, 3810060.

(ii) Carpinteria Salt Marsh Unit B. Santa Barbara County, California. From USGS 1:24,000 quadrangle map Carpinteria, lands bounded by the following UTM zone 11 NAD83 coordinates (E,N): 267531, 3809510; 267588, 3809470; 267654, 3809440; 267708, 3809400; 267767, 3809360; 267755, 3809360; 267733, 3809360; 267710, 3809360; 267684, 3809360; 267662, 3809340; 267638, 3809310; 267621, 3809290; 267602, 3809270; 267587, 3809240; 267577, 3809220; 267563, 3809180; 267555, 3809150; 267544, 3809120; 267526, 3809100; 267504, 3809090; 267480, 3809080; 267458, 3809080; 267434, 3809090; 267413, 3809100; 267387, 3809110; 267357, 3809120; 267342, 3809130; 267318, 3809140; 267270, 3809140; 267275, 3809160; 267291, 3809170; 267303, 3809190; 267309, 3809210; 267319, 3809220; 267342, 3809240; 267365, 3809260; 267384, 3809280; 267411, 3809330; 267435, 3809360; 267454, 3809390; 267469, 3809420; 267490, 3809470; 267508, 3809490; 267531, 3809510.

(iii) Carpinteria Salt Marsh Unit C. Santa Barbara County, California. From USGS 1:24,000 quadrangle map Carpinteria, lands bounded by the following UTM zone 11 NAD83 coordinates (E,N): 267638, 3809260; 267658, 3809240; 267668, 3809240; 267775, 3809120; 267611, 3808980; 267584, 3808950; 267538, 3808970; 267516, 3808980; 267504, 3808960; 267488, 3808950; 267462, 3808960; 267437, 3808980; 267408, 3809010; 267386, 3809020; 267354, 3809040; 267344, 3809070; 267320, 3809080; 267337, 3809110; 267410, 3809070; 267443, 3809060; 267461, 3809050; 267487, 3809050; 267513, 3809060; 267532, 3809070; 267548, 3809080; 267564, 3809100; 267576, 3809120; 267600, 3809170; 267613, 3809210; 267627, 3809250; 267638, 3809260.

(iv) Carpinteria Salt Marsh Unit D. Ventura County, California. From USGS 1:24,000 quadrangle map Carpinteria, lands bounded by the following UTM zone 11 NAD83 coordinates (E,N): 266801, 3809220; 266818, 3809220; 266839, 3809220; 266859, 3809220; 266883, 3809220; 266912, 3809220; 266939, 3809230; 266960, 3809230; 266988, 3809230; 267008, 3809230; 267025, 3809220; 267044, 3809210; 267062, 3809200; 267085, 3809180; 267105, 3809170; 267127, 3809150; 267149, 3809140; 267171, 3809130; 267190, 3809120; 267211, 3809120; 267239, 3809120; 267262, 3809120; 267290, 3809120; 267312, 3809120; 267331, 3809110; 267323, 3809100; 267314, 3809090; 267305, 3809080; 267294, 3809060; 267290, 3809060; 267279, 3809060; 267271, 3809060; 267258, 3809070; 267240, 3809070; 267223, 3809070; 267208, 3809070; 267190, 3809080; 267169, 3809090; 267147, 3809100; 267125, 3809100; 267099, 3809100; 267079, 3809110; 267061, 3809120; 267047, 3809140; 267029, 3809150; 267022, 3809160; 267012, 3809170; 266993, 3809170; 266970, 3809180; 266940, 3809180; 266912, 3809180; 266883, 3809190; 266862, 3809190; 266843, 3809180; 266823, 3809180; 266810, 3809180; 266795, 3809180; 266787, 3809180; 266781, 3809190; 266775, 3809200; 266773, 3809210; 266776, 3809220; 266783, 3809220; 266791, 3809230; 266801, 3809220.

(v) Map of Carpinteria Salt Marsh Unit Follows:

Start Printed Page 62945

* * * * *
Start Signature

Dated: September 30, 2002.

Craig Manson,

Assistant Secretary for Fish and Wildlife and Parks.

End Signature End Part End Supplemental Information

BILLING CODE 4310-55-P

BILLING CODE 4310-55-C

BILLING CODE 4310-55-P

[FR Doc. 02-25372 Filed 10-8-02; 8:45 am]

BILLING CODE 4310-55-C