Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Astragalus lentiginosus var. coachellae (Coachella Valley Milk-Vetch)

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2011-0064; 4500030114]

RIN 1018-AX40

Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for

Astragalus lentiginosus

var.

coachellae

(Coachella Valley Milk-Vetch)

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for

Astragalus lentiginosus

var.

coachellae

(Coachella Valley milk-vetch) under the Endangered Species Act of 1973, as amended. In total, approximately 9,603 acres (3,886 hectares) in the Coachella Valley area of Riverside County, California, fall within the boundaries of this critical habitat designation.

DATES:

This rule becomes effective on March 15, 2013.

ADDRESSES:

This final rule and the associated final economic analysis are available on the Internet at

http://www.regulations.gov

. Comments and materials received, as well as supporting documentation used in preparing this final rule, are available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone 760-431-9440; facsimile 760-431-5901.

The coordinates or plot points or both from which the maps included in the regulation are generated are included in the administrative record for this critical habitat designation and are available at

http://www.fws.gov/carlsbad/GIS/CFWOGIS.html, http://www.regulations.gov

at Docket No. FWS-R8-ES-2011-0064, and at the Carlsbad Fish and Wildlife Office (see

FOR FURTHER INFORMATION CONTACT

). All additional tools or supporting information developed for this critical habitat designation are also available at the Fish and Wildlife Service Web site and Field Office set out above, and may also be included in the preamble and/or at

http://www.regulations.gov

.

FOR FURTHER INFORMATION CONTACT:

Jim Bartel, Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone 760-431-9440; facsimile 760-431-5901. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. This is a final rule to designate critical habitat for

Astragalus lentiginosus

var.

coachellae

. Under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531

et seq.

) (Act), any species that is determined to be an endangered or threatened species requires critical habitat to be designated, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can only be completed by issuing a rule.

We listed

Astragalus lentiginosus

var.

coachellae

as an endangered species on October 6, 1998 (63 FR 53596). On August 25, 2011, we published in the

Federal Register

a proposed critical habitat designation for

A. l.

var.

coachellae

(76 FR 53224). Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat.

The critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for

Astragalus lentiginosus

var.

coachellae

. Here we are designating approximately 9,603 ac (3,886 ha), in 4 units as critical habitat for the taxon.

We have prepared an economic analysis of the designation of critical habitat. In order to consider economic impacts, we have prepared an analysis of the economic impacts of the critical habitat designation. We announced the availability of the draft economic analysis (DEA) in the

Federal Register

on May 16, 2012 (77 FR 28846), allowing the public to provide comments on our analysis. We considered all comments and information received from the public during the comment period, incorporated the comments as appropriate, and completed the final economic analysis (FEA) concurrently with this final determination.

Peer review and public comment. We sought comments from independent specialists to ensure that our designation is based on scientifically sound data and analyses. We invited three knowledgeable individuals with scientific expertise to review our technical assumptions, analysis, and whether or not we had used the best available information. We received responses from two peer reviewers, who generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve this final rule. Information we received from peer review is incorporated in this final revised designation. We also considered all comments and information received from the public during the comment period.

Previous Federal Actions

The following section summarizes the previous Federal actions since

Astragalus lentiginosus

var.

coachellae

was listed as an endangered species on October 6, 1998 (63 FR 53596); please refer to the final listing rule for a discussion of Federal actions that occurred prior to the taxon's listing.

At the time of listing, we determined that designation of critical habitat was “not prudent” (63 FR 53596). On November 15, 2001, the Center for Biological Diversity and the California Native Plant Society filed a lawsuit against the Secretary of the Interior and the Service challenging our not prudent determinations for eight plant taxa, including

Astragalus lentiginosus

var.

coachellae

(

Center for Biological Diversity, et al.

v.

Norton,

case number 01-cv-2101 (S.D. Cal.)). A second lawsuit asserting the same challenge was filed on November 21, 2001, by the Building Industry Legal Defense Foundation (

Building Industry Legal Defense Foundation

v.

Norton,

case number 01-cv-2145 (S.D. Cal.)). On May 9, 2002, all parties agreed to consolidate the suits and remand the critical habitat determinations for the eight plant taxa at issue to the Service for reconsideration. On July 1, 2002, the Court directed us to reconsider our not prudent determination and if we determined that designation was prudent, submit to the

Federal Register

for publication a proposed critical habitat designation for

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var.

coachellae

by November 30, 2004, and to submit to the

Federal Register

for publication a final rule designating critical habitat by November 30, 2005. The proposed rule to designate critical habitat for

A. l.

var.

coachellae

published in the

Federal Register

on December 14, 2004 (69 FR 74468). The final rule designating critical habitat for

A. l.

var.

coachellae

published in the

Federal Register

on December 14, 2005 (70 FR 74112).

The Center for Biological Diversity filed a lawsuit on January 14, 2009,

claiming the Service failed to designate adequate critical habitat for

Astragalus lentiginosus

var.

coachellae

(

Center for Biological Diversity

v.

Kempthorne,

case number ED-cv-09-0091 VAP (AGRx) (C.D. Cal.)). In a settlement agreement dated November 14, 2009, we agreed to reconsider the critical habitat designation for

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var.

coachellae

. The settlement required the Service to submit a proposed revised critical habitat designation for

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var.

coachellae

to the

Federal Register

by August 18, 2011, and submit a final revised critical habitat designation to the

Federal Register

by February 14, 2013. The proposed revised critical habitat designation was delivered to the

Federal Register

on August 17, 2011, and published on August 25, 2011 (76 FR 53224). A notice announcing the availability of the draft economic analysis for the proposed revised critical habitat designation was published in the

Federal Register

on May 16, 2012 (77 FR 28846). This final rule complies with the terms of the settlement agreement.

Background

It is our intent to discuss in this final rule only those topics directly relevant to the revision of critical habitat for

Astragalus lentiginosus

var.

coachellae

under the Act (16 U.S.C. 1531

et seq.

). For more information on the taxonomy, biology, and ecology of

A. l.

var.

coachellae,

please refer to: the final listing rule published in the

Federal Register

on October 6, 1998 (63 FR 53596); the first rule proposing designation of critical habitat published in the

Federal Register

on December 14, 2004 (69 FR 74468); the subsequent critical habitat final rule published in the

Federal Register

on December 14, 2005 (70 FR 74112); and the recent proposed rule to designate critical habitat published in the

Federal Register

on August 25, 2011 (76 FR 53224). Additionally, more information on the taxon can be found in the

A. l.

var.

coachellae

5-year review (Service 2009).

Except when referencing statutory language, we refer to

Astragalus lentiginosus

var.

coachellae

as a taxon in this document because it is not a species itself, but rather a variety of the species

Astragalus lentiginosus.

Information on the associated draft economic analysis for the proposed rule to designate revised critical habitat was published in the

Federal Register

on May 16, 2012 (77 FR 28846).

To ensure clarity of habitat discussions in the remainder of this rule, in the following paragraphs we have included a description of the sand transport system that sustains the sand formations that form the basis of

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var.

coachellae

habitat in the Coachella Valley.

Sand Transport System

Most of the sand in the northern Coachella Valley is derived from drainages within the Indio Hills, the San Bernardino Mountains, the Little San Bernardino Mountains, and the San Jacinto Mountains. This sand is moved into and through the valley by the sand transport system. The sand transport system consists of two main parts: (1) The fluvial (water) portion (headwaters, tributaries, and the stream channels within the various drainages surrounding Coachella Valley) and (2) the aeolian (wind) portion (predominantly westerly and northwesterly winds moving through the valley) (Griffiths

et al.

2002, pp. 5-7). The fluvial and aeolian portions of the systems are capable of moving sand until the velocity of the water or wind decreases to a point that sand is deposited.

Fluvial Portion of the Sand Transport System

The water that forms the basis of the fluvial portion of the sand transport system in the Coachella Valley enters the system as precipitation during storm events (Griffiths

et al.

2002, p. 5). These storm events cause flash flooding, which facilitates the erosion that generates sediment, and moves that sediment downstream in ephemeral streams and washes and eventually into the aeolian transport corridor. Most flooding events only transport small amounts of sediment to the valley floor; flooding events large enough to move large amounts of sediment are very infrequent (for example, the last large flooding event on the Whitewater River occurred in 1938) (Griffiths

et al.

2002, p. 5).

Fluvial sand transport areas are stream channels that convey sediment downstream to fluvial sand depositional areas. In the portions of the Coachella Valley containing Units 1, 2, and 3, very little erosion of parent rock or sediment deposits takes place in fluvial transport areas compared to areas upstream where the sediment is generated. In Unit 4, sediment is generated in the same area where fluvial sand transport occurs. Fluvial transport channels include portions of the lower reaches of San Gorgonio River and Snow Creek (Unit 1), Whitewater River (Unit 2), Mission Creek and Morongo Wash (Unit 3), and unnamed channels through the alluvial valley floor deposits (relatively flat areas (< 10 percent slope)) at the base of the Indio Hills (Unit 4). Fluvial sand transport areas do not provide habitat for

Astragalus lentiginosus

var.

coachellae

and are not considered to be within the geographical area occupied by the taxon at the time of listing.

Fluvial sand depositional areas are broad, flat, depositional plains or channel terraces where sediment carried by fluvial sand transport channels is deposited (Griffiths

et al.

2002, p. 5). During larger flood events, sediment can be deposited on bajada (large, coalescing alluvial fans) surfaces as floodplain deposits. There are four main fluvial sand depositional areas in the Coachella Valley: (1) In the Snow Creek/Windy Point area, which receives sediment from the San Gorgonio River and Snow Creek (Unit 1); (2) in the Whitewater Floodplain area, which receives sediment from the Whitewater River (Unit 2); (3) in the Willow Hole area, which receives sediment from Mission Creek and Morongo Wash (Unit 3); and (4) in the Thousand Palms area, which receives sediment from washes that move sediment from the alluvial deposits at the base of the Indio Hills (Unit 4). The fluvial sand depositional areas associated with Units 1, 2, and 3 do provide habitat for

Astragalus lentiginosus

var.

coachellae,

are currently occupied, and were within the geographical area occupied by the taxon at the time of listing. The fluvial sand depositional areas associated with Unit 4 are not known to provide habitat for the taxon, and are not considered to be within the geographical area occupied by the taxon at the time of listing.

Aeolian Portion of the Sand Transport System

The aeolian portion of the sand transport system begins where the fluvial portion of the system ends. Northerly and northwesterly winds pick up sand-sized grains of sediment accumulated in fluvial sand depositional areas, and carry them south/southeast through the valley and into aeolian depositional areas where they form sand fields and dunes (Griffiths

et al.

2002, p. 7).

Aeolian sand source areas are the portions of the fluvial depositional areas that are subject to wind erosion. Winds erode these sediment accumulations and carry sand across aeolian sand transport areas. Between flooding events, which replenish the sediment in fluvial sand depositional areas, sand available for aeolian transport can be depleted by wind erosion. Aeolian sand source areas provide habitat for

Astragalus lentiginosus

var.

coachellae,

are currently occupied, and were within the geographical area occupied by the taxon at the time of listing.

Sand eroded from the aeolian sand source areas is blown into and across the aeolian sand transport areas. Sand may accumulate in aeolian transport areas when ample sand is available in upwind source areas; conversely, aeolian transport areas may be depleted of sand when sand is lacking upwind. Aeolian sand transport areas provide habitat for

Astragalus lentiginosus

var.

coachellae,

are currently occupied, and were within the geographical area occupied by the taxon at the time of listing.

Sand carried by wind through the aeolian sand transport areas is deposited when the velocity of the wind decreases sufficiently. This occurs mainly where wind is slowed by vegetation (for example, honey mesquite in the Willow Hole area), other objects, or geological features. In general, sand formations (for example, sand dunes and sand fields) persist in aeolian sand depositional areas, whereas sand accumulations in transport areas are more ephemeral. Aeolian sand depositional areas provide habitat for

Astragalus lentiginosus

var.

coachellae,

and support the highest numbers of the taxon within the geographical area occupied by the taxon currently and at the time of listing.

The fluvial and aeolian processes discussed above have been disrupted in many areas by development, alteration of stream flow, and the proliferation of nonnative plants. These threats to the persistence of

Astragalus lentiginosus

var.

coachellae

habitat are discussed further in the

Special Management Considerations or Protection

section below.

The sandy substrates suitable for

Astragalus lentiginosus

var.

coachellae

are dynamic in terms of spatial mobility and tendency to change back and forth from active to stabilized (Lancaster 1995, p. 231). This has significant consequences for

A. l.

var.

coachellae

because the plant's population densities differ on different types of sandy substrates, and the dynamics of the fluvial and aeolian sand transport processes create the variety of substrate types that support occurrences of the taxon.

Dynamics of sandy substrates in the Coachella Valley are controlled by two main factors: (1) The supply of sand-sized sediment released, transported, and deposited by the fluvial system (water-transported); and (2) the rate of aeolian (windblown) transport (Griffiths

et al.

2002, pp. 4-8). The latter is affected primarily by wind fetch (the length of unobstructed area exposed to the wind).

As discussed above, most of the suitable sandy habitats in the Coachella Valley are generated from several drainage basins in the San Bernardino, Little San Bernardino, and San Jacinto Mountains and the Indio Hills (Lancaster

et al.

1993, pp. i-ii; Griffiths

et al.

2002, p. 10). Sediment is eroded and washed from hill slopes and channels in the local hills and alluvial sand deposits in the Thousand Palms area (Unit 4), and is transported downstream in stream channels and within alluvial fans during infrequent flood events (Lancaster

et al.

1993, p. 28; Griffiths

et al.

2002, p. 7). Fluvial sand transport is the dominant mechanism that moves sediment into fluvial sand depositional areas in the Coachella Valley (Griffiths

et al.

2002, p. 7). The largest sand depositional area in the Coachella Valley is in the Whitewater River floodplain, northwest of the City of Palm Springs (Griffiths

et al.

2002, p. 5).

The San Gorgonio Pass is between the two highest peaks in southern California: San Gorgonio Mountain (11,510 feet (ft) (3,508 meters (m))) to the north and San Jacinto Mountain (10,837 ft (3,303 m)) to the south. Westerly winds funneling through San Gorgonio Pass are the dominant mechanism by which aeolian sands are transported from bajadas and fluvial sand depositional areas to aeolian sand deposits in the Coachella Valley (Sharp and Saunders 1978, p. 12; Griffiths

et al.

2002, p. 1).

Astragalus lentiginosus

var.

coachellae

is associated with various types of sand formations that are formed by these aeolian sand deposits (Sanders and Thomas Olsen Associates 1996, p. 3).

Summary of Changes From Proposed Rule

In the notice announcing the availability of the draft economic analysis for public review (77 FR 28846, May 16, 2012), we made a correction to the proposed revised critical habitat for

Astragalus lentiginosus

var.

coachellae

as identified and described in the preamble to the proposed rule published in the

Federal Register

on August 25, 2011 (76 FR 53224). The correction was to the description of Unit 1 (76 FR 53240). We proposed 316 acres (ac) (128 hectares (ha)) of tribal land (Morongo Band of Mission Indians) and 1,791 ac (725 ha) of private land as critical habitat in Unit 1. Of this area, we characterized 156 ac (63 ha) of tribal land and 1 ac (0.4 ha) of private land as being covered under the Western Riverside County Multiple Species Habitat Conservation Plan (Western Riverside County MSHCP), due to an incorrect interpretation of GIS data. These lands are within the boundaries of the Western Riverside County MSHCP, but they are inholdings (that is, they are not covered by or subject to the provisions of the Western Riverside County MSHCP or any other habitat conservation plan). All other acreages reported in the proposed rule are correct to the best of our knowledge, and the boundaries of the proposed revised critical habitat remain the same as described in the proposed rule. No part of the proposed critical habitat for

A. l.

var.

coachellae

is covered by the Western Riverside County MSHCP.

Since publication of the proposed revised critical habitat rule for

Astragalus lentiginosus

var.

coachellae

in the

Federal Register

on August 25, 2011 (76 FR 53224), we have received new GIS parcel data describing land ownership in the Coachella Valley. Because we used this new data to generate acreages for the final rule, acreages in the final rule may not match proposed critical habitat acreages for all land ownership categories (see Table 1). The new data also allowed us to remove roads from the acreages calculated for this final rule (critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located). The acreage of lands designated as critical habitat and lands excluded from the critical habitat designation (please see the Exclusions section for a discussion of the lands excluded from the designation under section 4(b)(2) of the Act) still sum to the total acreage of lands proposed as critical habitat, minus the area occupied by roads. A total of 255 ac (103 ha) of roads have been removed from this designation.

Critical Habitat

Background

Critical habitat is defined in section 3(5)(A) of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

(a) Essential to the conservation of the species, and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Conservation, as defined under section 3 of the Act, means to use and

the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement a reasonable and prudent alternative to avoid destruction or adverse modification of critical habitat.

Under section 3(5)(A)(i) of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical and biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.

Under section 3(5)(A)(ii) of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential for the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species.

The geographical area occupied by

Astragalus lentiginosus

var.

coachellae

at the time it was listed (1998) that contains the physical or biological features essential to the conservation of the species that may require special management considerations or protection includes “the Coachella Valley between [the cities of] Cabazon and Indio” (63 FR 53598). We are designating these areas under section 3(5)(A)(i) of the Act's definition of critical habitat. At the time of listing, the fluvial sand transport areas were not occupied (nor are they occupied today); however, we have identified fluvial sand transport areas as essential for the conservation of

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coachellae

under section 3(5)(A)(ii) of the Act's definition of critical habitat,

i.e.,

”[s]pecific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.”

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the

Federal Register

on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) prohibitions described in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. 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 (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

Physical or Biological Features

In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations

at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:

(1) Space for individual and population growth and for normal behavior;

(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;

(3) Cover or shelter;

(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and

(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.

We derive the specific physical or biological features essential to

Astragalus lentiginosus

var.

coachellae

from studies of this taxon's habitat, ecology, and life history as described in the Critical Habitat section of the proposed critical habitat rule published in the

Federal Register

on August 25, 2011 (76 FR 53224), and in the information presented below. Additional information can be found in the final listing rule published in the

Federal Register

on October 6, 1998 (63 FR 53596), and the 5-year review for

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var.

coachellae

signed on September 1, 2009 (Service 2009). We have determined that

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var.

coachellae

requires the following physical or biological features:

Space for Individual and Population Growth and for Normal Behavior

Astragalus lentiginosus

var.

coachellae

has a limited geographical and ecological distribution. Within its limited range,

A. l.

var.

coachellae

requires space for the essential geomorphological processes on which it depends, including natural fluvial (water) and aeolian (wind) transport and deposition of sandy substrates (see the

Habitat

section of the proposed critical habitat rule for

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var.

coachellae

for more detailed discussion of fluvial and aeolian sand transport in Coachella Valley (76 FR 53226)). Protection of aeolian and fluvial processes is crucial to maintain habitat for

A. l.

var.

coachellae.

These processes are responsible for transporting and depositing sand that is the foundation of habitat for

A. l.

var.

coachellae.

Disruption, redirection, or curtailment of these processes can result in a lack of adequate amounts of sand to produce the different formations that support habitat (for example, active dunes and sand fields). Protecting aeolian sand transport corridors between

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var.

coachellae

occurrences is also important for the dispersal of the species' windblown fruits into temporally unoccupied habitat to reestablish reproductive occurrences (metapopulation structure).

Astragalus lentiginosus

var.

coachellae

can produce fruit and viable seed at very low rates without the aid of insect pollinators, but is dependent upon insect pollinators to generate the amount of seed typically produced by individuals of the taxon (Meinke

et al.

2007, p. 37; also see comment number 7 in the Summary of Comments and Recommendations section below). Protecting aeolian sand transport corridors also provides space for pollinator movement between occurrences, which is important for the long-term maintenance of occurrences. Therefore, based on the information above, we identify areas supporting aeolian sand transport corridors that provide space for seed dispersal and pollinator movement, to be physical or biological features essential to the conservation of this taxon.

Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements

Astragalus lentiginosus

var.

coachellae

is primarily found on various types of sand formations including active sand dunes, stabilized or partially stabilized dunes, active sand fields, stabilized sand fields, shielded sand dunes and fields, ephemeral sand fields, and alluvial sand deposits on floodplain terraces of active washes. Each of these sand deposit formations provides habitat for

A. l.

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coachellae

to varying degrees (see

Habitat

section of the proposed critical habitat rule for

A. l.

var.

coachellae

for further discussion of sand formations that support the taxon (76 FR 53226)). The taxon also requires moving water and air to transport sand from areas where the sand originates to occupied habitat areas (depositional areas) (precipitation occurs mostly during large winter storms and intense summer thunderstorms (Griffiths

et al.

2002, p. 5)).

Astragalus lentiginosus

var.

coachellae

can be found in abundance on shielded sand fields, and the

A. l.

var.

coachellae

plants in these areas are important for the conservation of the taxon. However, we do not consider shielded habitat to contain the physical or biological features essential to the conservation of the taxon because these areas are permanently cut off from the sand transport system. Shielded areas, although they currently contain sand formations, will eventually lose these formations as the winds remove sand over time. Therefore, based on the information above, we identify the other above-mentioned sand formations (active sand dunes, stabilized or partially stabilized dunes, active sand fields, stabilized sand fields, ephemeral sand fields, and alluvial sand deposits on floodplain terraces of active washes) to be a physical or biological feature essential to the conservation of this taxon.

The specific physiological and soil nutritional needs of

Astragalus lentiginosus

var.

coachellae

are not known at this time. The taxon shows variation in productivity and life-history patterns that appear to coincide with local variations in precipitation (wetter years result in higher levels of seed germination (for example, Barrows 1987, p. 2)) and variations across its range (plants in the northwestern portion of the range where rainfall is higher are more likely to grow larger and survive into their second year or longer (Meinke

et al.

2007, p. 25)). However, the specific optimal soil moisture range for the taxon is unknown.

Additionally, the taxon does not grow in some areas that appear to contain suitable habitat. For example,

Astragalus lentiginosus

var.

coachellae

grows on some portions of the alluvial sand deposits on floodplain terraces of Morongo Wash, but not others, and it does not grow in the bed of the wash when the bed is dry even though the bed contains sandy substrates (J. Avery, USFWS Biologist, pers. obs. 2004-2009). These apparent inconsistencies may be due to microsite differences (such as nutrient availability, soil microflora or microfauna, soil texture, or moisture). Research is needed to determine the specific nutritional and physiological requirements of

A. l.

var.

coachellae.

Sites for Reproduction

Astragalus lentiginosus

var.

coachellae

plants, like most plants, do not require areas for breeding or reproduction other than the areas they occupy and any area necessary for pollinators and seed dispersal. Reproduction sites accommodate all phases of the plant's life history. Seeds likely require certain soil conditions to germinate (for example, moisture and nutrient levels within a certain range or close proximity to the soil surface), but as discussed above, we do not yet know what those requirements are. In addition, wind is important for the dispersal of the windblown fruits into

temporally unoccupied habitat (metapopulation structure) of

A. l.

var.

coachellae.

The primary visitors of

Astragalus lentiginosus

var.

coachellae

appear to be nonnative honeybees (

Apis mellifera

) (Meinke

et al.

2007, p. 36). These bees appear to be flexible in their choice of nesting sites. For example, bee nests were found in discarded tires, in

Tamarix

spp. trees, and under a bridge near

A. l.

var.

coachellae

occurrences (Meinke

et al.

2007, p. 36).

Native solitary bees, which may be the natural pollinators of

Astragalus lentiginosus

var.

coachellae,

utilize several plant species as pollen and nectar sources (Karron 1987, p. 188). Maintaining adequate populations of these bees within or near

A. l.

var.

coachellae

occurrences, as well as between

A. l.

var.

coachellae

occurrences, likely depends on the presence of a variety of native plants in sufficient numbers. We do not know, however, why native bees have not yet been observed pollinating

A. l.

var.

coachellae.

Until specific pollinators for

A. l.

var.

coachellae

are identified, we are unable to consider protection of those pollinators' specific habitat explicitly via this critical habitat designation. Therefore, based on the information above, we identify aeolian sand transport corridors as providing space needed for pollen and seed dispersal and pollinator movement to be a physical or biological feature essential to the conservation of this taxon.

Habitats Protected From Disturbance or Representative of the Historical, Geographical, and Ecological Distributions of the Taxon

Astragalus lentiginosus

var.

coachellae

is strongly associated with active, stabilized, ephemeral, and shielded sandy substrates in the Coachella Valley (Sanders and Thomas Olsen Associates 1996, p. 3; Barrows and Allen 2007, p. 323). This taxon is primarily found on loose aeolian (wind transported) or fluvial (water transported) sands that form dunes or sand fields and along margins of sandy washes (Sanders and Thomas Olsen Associates 1996, p. 3). Please see the Background section above for a description of the sand transport system.

In order to maintain adequate replenishment of sands into aeolian sand depositional areas, it is important that sand-transport corridors between fluvial and aeolian sand depositional areas remain unobstructed for wind passage. The strong wind energy in this region can also erode sands from wash margins and suitable

A. l.

var.

coachellae

habitat, temporally shifting

A. l.

var.

coachellae

habitat into other areas, and thereby allowing the taxon to be dispersed and to colonize new areas or recolonize previously occupied areas. As a result, it is also necessary to protect sufficient space to allow for these dynamic aeolian sand deposits to shift in their distribution. Therefore, based on the information above, we identify the fluvial and aeolian portions of the sand transport system that provide habitat protected from disturbance or representative of the historical, geographical, and ecological distributions of the taxon to be a physical or biological feature essential to the conservation of this taxon.

Primary Constituent Element for Astragalus lentiginosus var. coachellae

Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of

Astragalus lentiginosus

var.

coachellae

within the geographical area occupied at the time of listing, focusing on the features' primary constituent elements (PCEs). Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes.

Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the taxon's life-history processes, we determine that the primary constituent element specific to

Astragalus lentiginosus

var.

coachellae

is:

Sand formations associated with the sand transport system in Coachella Valley, California. These sand formations have the following features:

(a) They are active sand dunes, stabilized or partially stabilized sand dunes, active or stabilized sand fields (including hummocks forming on leeward sides of shrubs), ephemeral sand fields or dunes, and fluvial sand deposits on floodplain terraces of active washes.

(b) They are found within the fluvial sand depositional areas, and the aeolian sand source, transport, and depositional areas of the sand transport system.

(c) They comprise sand originating in the hills surrounding Coachella Valley and alluvial deposits at the base of the Indio Hills, which is moved into the valley by water (fluvial transport) and through the valley by wind (aeolian transport).

We consider the fluvial sand depositional areas and the aeolian sand source, transport, and depositional areas of the sand transport system described in (b) to be within the geographical area occupied by

Astragalus lentiginosus

var.

coachellae

at the time the taxon was listed, whereas the fluvial sand transport areas referenced in (c) are considered to be outside the geographical area occupied by the taxon at the time of listing or currently. The sand formations provide substrate components and conditions suitable for growth. The aeolian sand transport corridor also provides space for seed dispersal and pollinator movement needed to maintain sand movement and genetic diversity of the taxon.

With this designation of critical habitat, we identify the physical or biological features essential to the conservation of the taxon, focusing on the identification of the features' primary constituent element sufficient to support the life-history processes of the taxon.

Special Management Considerations or Protection

When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and that may require special management considerations or protection. The features essential to the conservation of this taxon may require special management considerations or protection to reduce the following threats: direct and indirect effects of development (urban and recreational), nonnative plant species, unauthorized off-highway vehicle (OHV) impacts, mining and other activities or structures that may cause alteration of stream flow, and groundwater pumping.

Development

The Coachella Valley continues to attract increasing numbers of people and associated urban development. Urban and recreational development can impact

Astragalus lentiginosus

var.

coachellae

directly by converting suitable, often-occupied, habitat to structures, infrastructure, landscaping, or other nonnatural ground cover that does not support the growth of the taxon. Structures and landscaping can also impact

A. l.

var.

coachellae

habitat indirectly by altering local aeolian and fluvial regimes. Such alterations can result in degraded

A. l.

var.

coachellae

habitat downstream or downwind of developed areas by inhibiting the movement of loose, unconsolidated sands needed for the formation and maintenance of suitable habitat vital to the growth and reproduction of the taxon. If the sand transport system is

altered, sand cannot be moved through the valley effectively to replace sand lost from the system downstream/downwind as a result of ongoing fluvial and aeolian processes.

Special management considerations or protection of the essential physical or biological features within critical habitat areas are needed to address the threats posed to

Astragalus lentiginosus

var.

coachellae

habitat by urban and recreational development. Management actions that could ameliorate these threats include, but are not limited to: Protection of lands that support suitable habitat and associated sand transport systems and siting future development such that disruption of fluvial and aeolian sand transport processes is minimized and deposition areas are preserved. These management actions will protect the essential physical or biological features for the taxon by decreasing the direct loss of habitat to development and by helping to maintain the sand transport system and sand deposition areas that together provide the sand formations that are necessary components of

A. l.

var.

coachellae

habitat.

Preserving large areas of suitable habitat with intact wind and depositional regimes and preserving areas vital to the maintenance of the sand transport system are important to maintain existing habitat and prevent further habitat loss. Preserving a variety of different habitat types (for example, sand dunes, sand fields) throughout the range of the taxon should help maintain the genetic and demographic diversity (individuals in different age classes at any given time) of

Astragalus lentiginosus

var.

coachellae.

Designing and orienting structures, infrastructure, and landscaping such that they minimize the blockage of sand movement will also help to prevent the disruption of the sand transport system and further habitat loss. For example, orienting a building so that the face of the building is at an oblique angle with the prevailing wind direction may allow more sand to move around the building than would occur if the face of the building were at a right angle with the direction of windblown sand movement. Planning development such that structures and landscaping are located outside of areas vital to sand transport will also help lessen the degradation of

Astragalus lentiginosus

var.

coachellae

habitat.

Nonnative Plants

Invasive nonnative plant species, such as

Brassica tournefortii

(Saharan mustard),

Schismus barbatus

(Mediterranean grass), and

Salsola tragus

(Russian-thistle), can impact

Astragalus lentiginosus

var.

coachellae

habitat by stabilizing loose sediments and reducing transport of sediment to downwind areas, thus making habitat unsuitable for

A. l.

var.

coachellae.

Additionally,

Tamarix

spp. (salt cedar) can create wind breaks in the aeolian transport system and is used to decrease the movement of sand, for example, onto railroad tracks and infrastructure right-of-ways in the Coachella Valley. Dense cover of nonnative taxa may also impede the natural wind dispersal of the mature fruits of

A. l.

var.

coachellae.

This will curtail natural reproduction within a given site and natural dispersal to repopulate temporally unoccupied sites.

Management activities that could ameliorate these threats include, but are not limited to: Active removal of nonnative plant species and targeted herbicide application (provided herbicides can be shown not to negatively impact

Astragalus lentiginosus

var.

coachellae

plants or seeds). These management activities will protect the essential physical or biological features for the taxon by helping to control nonnative plants, which can degrade

Astragalus lentiginosus

var.

coachellae

habitat.

Unauthorized Off-Highway Vehicle (OHV) Impacts

Unauthorized OHV use may impact

Astragalus lentiginosus

var.

coachellae

habitat by making substrate conditions unsuitable for growth through the alteration of the sand transport system, changes in plant community composition, and disruption of the substrate, which can cause soils to lose moisture and may also impact soil microflora or microfauna (USFWS 2008, p. 8766). The native plant community associated with

A. l.

var.

coachellae

habitat allows for sand movement and does not inhibit dispersal. Disturbance from OHV use can affect the plant composition of the native plant community. Management activities that could ameliorate the threat of unauthorized OHV use include fencing and signage of habitat areas to assist in educating the public and engaging local authorities to improve the enforcement of laws prohibiting OHV unauthorized use. Control of unauthorized OHV use in habitat occupied by

A. l.

var.

coachellae

has recently improved through the efforts of a local law enforcement task force in habitat areas including lands managed by the Bureau of Land Management (BLM) in the Willow Hole (depositional area in Unit 3) and Snow Creek (depositional area in Unit 1) areas, although OHV use remains on many privately owned lands.

Alteration of Stream Flow

The construction and operation of water percolation ponds, sand and gravel mines, and, to a lesser degree, dikes and debris dams can negatively impact

Astragalus lentiginosus

var.

coachellae

habitat if they prevent the fluvial transport of sand to habitat areas through diversion, channelization, or damming (Griffiths

et al.

2002, pp. 13, 23). For example, the percolation ponds constructed on BLM and Coachella Valley Water District lands in the Whitewater River floodplain have substantially altered the transport of sand to habitat areas downstream and downwind, resulting in the severe degradation of sand and loss of

A. l.

var.

coachellae

habitat in these areas (Griffiths

et al.

2002, pp. 6, 42).

Management activities that could ameliorate the threats posed to

Astragalus lentiginosus

var.

coachellae

habitat by alteration of stream flow include, but are not limited to: Working with concerned parties to find and implement alternatives that allow for the removal or reconfiguration of existing barriers to fluvial sand transport, restoring sand transport to a more natural state, and working with concerned parties to design and implement future projects to maximize conservation/restoration of natural sand transport. These management activities will protect the essential physical or biological features for the taxon by helping to maintain the sand transport system that provides the sand that creates the sand formations that form the basis of

A. l.

var.

coachellae

habitat.

Groundwater Pumping

Hummocks (local accumulations of sand that form when sand accumulates around, and is held in place by, shrubs or clumps of vegetation) formed by

Prosopis

spp. (mesquite, which has deep tap roots to reach groundwater, and is thus adversely impacted when the groundwater table is lowered beyond the reach of its roots) and other shrubs contribute to the creation and stabilization of sand dunes and sand fields by anchoring dunes and making them less vulnerable to wind erosion. Windblown sand accumulates in areas where wind speed is reduced (by topographical features, rocks, shrubs, or other objects) near the ground (Fryberger and Ahlbrandt 1979, p. 440).

Prosopis glandulosa

var.

torreyana

(honey mesquite) is the native mesquite in western Riverside County. The shrubs in the hummock help to stabilize and support sand deposits around the

hummock, which support

Astragalus lentiginosus

var.

coachellae

occurrences and its sand dune and field habitat. These shrubs, unlike nonnative plants used as windbreaks as discussed above, do not degrade

A. l.

var.

coachellae

habitat by substantially blocking movement of sand to habitat areas downwind. The mesquite shrubs in the Banning Fault/Willow Hole area are senescent and appear to be dying, likely due to ongoing artificial lowering of groundwater levels in the subbasin to provide water for human use (Mission Springs Water District 2008, p. 4-97). Similar mesquite hummocks that existed historically have already been lost in and near the Thousand Palms Reserve (in the Thousand Palms Conservation Area), likely due to groundwater withdrawals (based on water well log data, field observation, and aerial photos) (J. Avery, pers. obs. 2006). Loss of the anchoring mesquite shrubs will lead to the loss of the associated hummocks over time by the erosion of sand deposits, therefore affecting

A. l.

var.

coachellae

habitat created or maintained by the trapping of sand.

Management activities that could ameliorate the threats posed to

Astragalus lentiginosus

var.

coachellae

habitat by groundwater pumping include, but are not limited to: Subsurface irrigation of existing mesquite plants, and the planting, restoring, and irrigating of mesquite where needed; and removal of extensive tamarisk, which can compete with

A. l.

var.

coachellae

for groundwater, along railroad rights-of-way, water courses, oases, etc. These management activities will protect the essential physical or biological features for

A. l.

var.

coachellae

by helping to maintain much of the extant mesquite hummocks within the range of the taxon and by restoring an undetermined acreage of historical mesquite hummocks that maintain (or will maintain) portions of

A. l.

var.

coachellae

habitat.

In summary, threats to

Astragalus lentiginosus

var.

coachellae

habitat include urban and recreational development, nonnative plant species, OHV impacts, alteration of stream flow, and groundwater pumping. We find that the areas designated as critical habitat within the geographical area occupied by the taxon at the time of listing contain the physical or biological features essential to the conservation of

A. l.

var.

coachellae

and that these features may require special management considerations or protection. Special management considerations or protection may be required to eliminate, or reduce to a negligible level, the threats affecting each unit or subunit and to preserve and maintain the essential features that the critical habitat units and subunits provide to

A. l.

var.

coachellae.

Additional discussions of threats facing individual sites are provided in the individual unit descriptions in the Critical Habitat Designation section below.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we use the best scientific and commercial data available to designate critical habitat. We reviewed available information pertaining to the habitat requirements of the species. In accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we considered whether designating additional areas—outside those currently occupied as well as those occupied at the time of listing—are necessary to ensure the conservation of the species. We relied on information in articles in peer-reviewed journals, the Coachella Valley MSHCP/NCCP, survey reports and other unpublished materials, and expert opinion or personal knowledge. We also used the model developed by the Coachella Valley Mountains Conservancy (CVMC) to help identify

Astragalus lentiginosus

var.

coachellae

habitat (CVMC 2004). Finally, we used information from the proposed (69 FR 74468; December 14, 2004) and final (70 FR 74112; December 14, 2005) critical habitat rules, the current 5-year status review (Service 2009), the proposed revised critical habitat rule (76 FR 53224; August 25, 2011), and other information in our files.

We are designating critical habitat in areas within the geographical area occupied by the species at the time of listing in 1998. We also are designating specific areas outside the geographical area occupied by

A. l.

var.

coachellae

at the time of listing, because we have determined that such areas are essential for the conservation of the taxon. These areas support sand transport processes that are vital to maintaining suitable habitat, and therefore are essential for the conservation of the taxon.

Our use of a habitat model to help identify

Astragalus lentiginosus

var.

coachellae

habitat was supported by a peer reviewer who stated,

“Because

A. l.

var.

coachellae

is reliant on specialized, dynamic, habitat where not only the habitat must be preserved but the processes which create the habitat must be preserved[,] prediction of this habitat may be easier than documenting it. Because much of the habitat which is currently occupied by

A. l.

var.

coachellae

may only be occupied by seed in the soil seed bank and not [by an] easily identifiable vegetative form[,] the predictive power of a model is similarly important.” (Knaus, 2011, p. 1)

Suitable habitat may be occupied by the taxon even if no plants appear above-ground for several years.

Astragalus lentiginosus

var.

coachellae

populations survive seasonal and annual drought periods through dormant seeds in the soil (seed bank) as well as root crowns. Consequently, the number of standing plants at any given time is only a limited indication of population size (Meinke

et al.

2007, p. 39). It is not known how long

A. l.

var.

coachellae

seeds remain viable, but studies on

A. l.

var.

micans

demonstrate that buried seeds may remain viable for at least 8 years (Pavlik and Barbour 1988, p. 233). A study including

Astragalus lentiginosus

var.

salinus

found that more than 94 percent of seeds remained viable after being buried in the soil for 6 years (Ralphs and Cronin 1987, p. 794). Therefore, we also considered areas to be occupied where suitable habitat did not contain aboveground individuals, but likely contain seed banks and dormant root crowns of

A. l.

var.

coachellae

.

We also determined which areas outside the geographical area occupied by the taxon at the time of listing that provide for the fluvial transport of sand from areas where sediment is generated to fluvial depositional areas occupied by

Astragalus lentiginosus

var.

coachellae

are essential for the conservation of

A. l.

var.

coachellae

because they maintain

A. l.

var.

coachellae

habitat (see steps 1, 2, and 3 under Areas Outside the Geographical Area Occupied at the Time of Listing section below).

We defined the boundaries of each unit using the steps outlined below:

Areas Within the Geographical Area Occupied at the Time of Listing

(1) Potential suitable habitat for

Astragalus lentiginosus

var.

coachellae

was first identified using areas included in the Coachella Valley Mountains Conservancy (CVMC) species distribution model for the taxon (CVMC 2004). The CVMC model was developed using survey data for

A. l.

var.

coachellae

(Bureau of Land Management, unpublished data 2001), habitat variables, and expert opinion, and was created to assist in the design of preserves and to evaluate the potential benefits of the (then) proposed Coachella Valley MSHCP/NCCP for the plant (CVMC 2004). Environmental variables associated with

A. l.

var.

coachellae

occurrence locations were identified, and maps containing those

variables were combined with Geographic Information Systems (GIS) land use and habitat data to create the model. Eight types of habitats were used in the model: (1) Margins of active dunes, (2) active shielded desert dunes, (3) stabilized desert dunes, (4) stabilized sand fields, (5) stabilized shielded sand fields, (6) ephemeral sand fields, (7) active sand fields, and (8) mesquite hummocks. The habitat types used to create the model represented conditions that result from the dynamic process of sand movement in the Coachella Valley floor; these habitat types are found in fluvial sand depositional areas and aeolian sand source, transport, and depositional areas (see

Habitat

section above for a detailed discussion of these habitat types). During our analysis for the 2005 critical habitat designation for

A. l.

var.

coachellae,

we reviewed the validity of the environmental variables used to create the model with occurrence data and information about the plant's ecology. We found documentation of

A. l.

var.

coachellae

occurrences in all of the natural communities used to create the model, and concluded that the model was reasonably capable of identifying suitable habitat for

A. l.

var.

coachellae

. We mapped the modeled habitat using GIS software, and refined the map to include only areas that we estimate contain the physical or biological features essential to the conservation of the taxon.

(2) We analyzed lands covered by the Coachella Valley MSHCP/NCCP, and determined that

Astragalus lentiginosus

var.

coachellae

habitat within the plan's Conservation Areas sufficiently provides for the conservation of the taxon within areas covered by the Coachella Valley MSHCP/NCCP (Conservation Areas are a group of specific areas in which the bulk of the habitat conservation mandated by the HCP is to take place). We have determined that the modeled

A. l.

var.

coachellae

habitat outside of the Conservation Areas does not contain the physical or biological features essential to the conservation of the taxon because these areas exist as small, disjunct patches, other larger areas where sand transport has been blocked, or they do not contain documented occurrences of the taxon.

The modeled

Astragalus lentiginosus

var.

coachellae

habitat areas that are covered by the Coachella Valley MSHCP/NCCP and are within the Conservation Areas are connected to the fluvial portion of the sand transport system. The PCE is found in these modeled habitat areas (fluvial sand transport within Conservation Areas is discussed in Areas Outside the Geographical Area Occupied at the Time of Listing section below). Modeled

A. l.

var.

coachellae

habitat areas that are covered by the Coachella Valley MSHCP/NCCP but are outside of the Conservation Areas may contain the PCE, but for reasons discussed above, we do not consider these areas to meet the definition of critical habitat for

A. l.

var.

coachellae

. Therefore, in areas covered by the Coachella Valley MSHCP/NCCP, we confined the critical habitat designation to lands within the Conservation Areas.

(3) We added areas not covered under the Coachella Valley MSHCP/NCCP, but that have been determined by biologists familiar with the taxon, its habitat, and its distribution, to contain the physical or biological features essential to the conservation of the taxon (see the 2011 proposed critical habitat rule (76 FR 53224 (August 25, 2011)) for further discussion regarding these areas). The biologists used aerial map coverages, Service GIS data, and personal knowledge to determine these areas.

Areas Outside the Geographical Area Occupied at the Time of Listing

We determined that designating only those areas within the geographical area occupied at the time of listing (also identified as the occupied fluvial and aeolian depositional areas and intervening areas needed for aeolian sand transport, pollen and seed dispersal, and pollinator movement) would not sufficiently provide for the conservation of

Astragalus lentiginosus

var.

coachellae

because movement of sand from areas where sediment is generated into areas where the taxon grows is vital to the maintenance of habitat for the taxon. For sufficient fine-grained sands to reach the aeolian system on the valley floor and support

Astragalus lentiginosus

var.

coachellae,

it is necessary to protect major fluvial channels that transport sand from the surrounding drainage basins as well as bajadas and depositional areas. The Coachella Valley Multiple Species Habitat Conservation Plan/Natural Community Conservation Plan (Coachella Valley MSHCP/NCCP) identifies the protection of the above-mentioned geomorphological processes, including sand transport, as a conservation goal for several taxa, including

A. l.

var.

coachellae

. It will be impossible to conserve or recover this taxon if fluvial sand transport sites and processes are lost. Therefore, we determined that certain fluvial sand transport areas are essential for the conservation of

A. l.

var.

coachellae

and should be designated as critical habitat regardless of the fact that these areas are outside the geographical area occupied by

A. l.

var.

coachellae

at the time the species was listed. We used the following steps to determine which portions of the fluvial sand transport system are essential for the conservation of

A. l.

var.

coachellae:

Units 1, 2, and 3

(1) We used aerial imagery to determine where the main stream channels conveying sand to the fluvial sand depositional areas in Units 1, 2, and 3 (San Gorgonio River, Whitewater River, Snow Creek, Mission Creek, and Morongo Wash) are located, and used GIS software to draw polygons that define the extent of these streams.

We considered only the lower reaches of main stream channels (fluvial sand transport areas) that move sediment from the base of the surrounding mountains and hills into the fluvial depositional areas on the valley floor to be essential for the conservation of the taxon. If the lower reaches of any of these main stream channels are lost, sand transport to portions of the occupied

Astragalus lentiginosus

var.

coachellae

habitat downstream and downwind will be lost as well. This has occurred where a sand mining operation located in the San Gorgonio River channel cut off delivery of sand from upstream areas, and reduced delivery of sand to the San Gorgonio River fluvial depositional areas by an estimated 14 percent (Griffiths

et al.

2002, p. 21). Hence, a single project in a fluvial sand transport area could potentially hinder the movement of sand needed to maintain

A. l.

var.

coachellae

habitat.

To determine the upstream extent of the fluvial sand transport areas, we used GIS data to determine where the ground slope of the main stream channels becomes greater than 10 percent. Griffiths

et al.

(2002) found that the majority of the sand reaching the valley floor areas in Units 1, 2, and 3 is generated (eroded from parent rock) in portions of the mountain drainages where the ground slope is greater than 10 percent. We have identified the portions of main stream channels with a ground slope of less than 10 percent as sand transport areas (areas where sand is transported from the base of surrounding mountains and hills, but little sand is generated).

Unit 4

(2) The sand transport system moving sand into and through the Thousand Palms area (which contains Unit 4) differs from the system moving sand into and through Units 1, 2, and 3. In Unit 4, water moving through unnamed

washes erodes and moves sand from alluvial deposits at the base of the Indio Hills. Thus, both generation of sand and fluvial transport of sand into fluvial depositional areas occurs on these alluvial deposits. The occupied areas in Unit 4 depend on large flooding events to wash sands stored in channels on the alluvial valley floor deposits into fluvial sand depositional areas where the sand can be moved by aeolian processes. Therefore, for Unit 4, rather than using the 10 percent slope line to delineate fluvial sand transport areas as we did for Units 1, 2, and 3 (the areas supporting sand generation and fluvial sand transport in Unit 4 are less than 10 percent slope), we used aerial imagery to determine the extent of the alluvial deposits where the sand is stored, and used our GIS software to create a GIS polygon to encompass this area. We proposed this area in Unit 4 as critical habitat for

Astragalus lentiginosus

var.

coachellae

because the area and the fluvial sand transport processes it supports are vital to maintaining sand formations in the occupied portions of Unit 4 that form the basis of

A. l.

var.

coachellae

habitat in that unit.

Final Critical Habitat Designation

In this revised critical habitat designation for

Astragalus lentiginosus

var.

coachellae,

we selected areas based on the best scientific data available that possess those physical or biological features essential to the conservation of the taxon and that may require special management considerations or protection and other areas essential for the conservation of

A. l.

var

. coachellae

. When determining critical habitat boundaries within this final rule, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features for

Astragalus lentiginosus

var.

coachellae

. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text in the rule and are not designated as critical habitat. Therefore, a Federal action involving these lands will not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action may affect adjacent critical habitat.

The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on

http://www.regulations.gov

at Docket No. FWS-R8-ES-2011-0064, on our Internet sites

http://www.fws.gov/carlsbad/GIS/CFWOGIS.html,

and at the Carlsbad Fish and Wildlife Office (see

FOR FURTHER INFORMATION CONTACT

above).

We are designating as critical habitat lands that we have determined are within the geographical area occupied at the time of listing and contain sufficient elements of the physical or biological features to support life-history processes essential to the conservation of the taxon, and lands outside of the geographical area occupied at the time of listing that we have determined are essential for the conservation of

Astragalus lentiginosus

var.

coachellae

.

We are designating four units as critical habitat for

Astragalus lentiginosus

var.

coachellae

. The critical habitat areas described below constitute our best assessment at this time of areas that meet the definition of critical habitat. Those four units are: (1) San Gorgonio River/Snow Creek System, (2) Whitewater River System, (3) Mission Creek/Morongo Wash System, and (4) Thousand Palms System. Table 1 shows acres of land proposed as critical habitat in the 2011 proposed revised critical habitat rule for

A. l.

var.

coachellae

(76 FR 53224), acres of land excluded from this critical habitat designation under section 4(b)(2) of the Act (see Exclusions Based on Other Relevant Impacts section below for detailed discussion of exclusions), and acres of land designated as critical habitat for

A. l.

var.

coachellae

as a result of this revised critical habitat rule for all four units. We are designating 7,550 ac (3,055 ha) in accordance with section 3(5)(A)(i) of the Act (specific areas within the geographical area occupied by the taxon at the time of listing) and 2,053 ac (831 ha) in accordance with section 3(5)(A)(ii) of the Act (specific areas outside the geographical area occupied by the taxon at the time of listing).

BILLING CODE 4310-55-P

ER13FE13.013

ER13FE13.014

ER13FE13.015

ER13FE13.016

ER13FE13.017

ER13FE13.018

BILLING CODE 4310-55-C

We present brief descriptions of all units, and reasons why they meet the definition of critical habitat, for

Astragalus lentiginosus

var.

coachellae

below.

Unit 1: San Gorgonio River/Snow Creek System

Unit 1 consists of 1,172 ac (474 ha) of Federal land, 61 ac (25 ha) of private land, and 102 ac (41 ha) of local government-owned land in the Coachella Valley, Riverside County. Unit 1 contains approximately 238 ac (96 ha) of unoccupied fluvial sand transport area associated with the San Gorgonio River and Snow Creek drainages. These areas are being designated under section 3(5)(A)(ii) of the Act, because they are specific areas outside the geographical area occupied by the species at the time of listing and are essential for the conservation of the species. The remainder of Unit 1 consists of approximately 1,097 ac (444 ha) of occupied suitable habitat extending approximately from the eastern edge of the community of Cabazon to just west of Whitewater River, and is approximately bound by State Route 111 to the north and the foot of the San Jacinto Mountains to the south. These areas are being designated under section 3(5)(A)(i) of the Act, because they are within the geographical area occupied by the species at the time of listing and contain those physical or biological features essential to the conservation of the species. In total, Unit 1 consists of 1,335 ac (540 ha) of land.

Unoccupied fluvial sand transport areas in this unit contain active washes associated with San Gorgonio River and Snow Creek, which carry substrates created by fluvial erosion of the surrounding hills to occupied fluvial deposition areas in Unit 1 on the valley floor (Griffiths

et al.

2002, pp. 10-11). The unoccupied areas in Unit 1 are essential for the conservation of

Astragalus lentiginosus

var.

coachellae

because they support the fluvial sand transport process crucial to the maintenance of the sand formations that form the foundation of

A. l.

var.

coachellae

habitat in the occupied areas of Unit 1.

Occupied habitat areas of Unit 1 constitute one of the four main habitat areas supporting

Astragalus lentiginosus

var.

coachellae

(Coachella Valley MSHCP/NCCP, p. 9-21) and contain the physical or biological features essential to the conservation of

A. l.

var.

coachellae,

including active sand dunes, sand fields, and stabilized and partially stabilized sand fields that provide substrate components and conditions suitable for the growth of

A. l.

var.

coachellae

(Coachella Valley MSHCP/NCCP 2008, Table 10-1a) and areas over which unobstructed aeolian sand transport can occur. The essential features in Unit 1 may require special management considerations or protection to address threats from nonnative invasive plants and unauthorized OHV activity in the occupied areas and threats from alteration of stream flow in the unoccupied areas that impact habitat in the occupied areas. Please see the

Special Management Considerations or Protection

section of this rule for a discussion of the threats to

A. l.

var.

coachellae

habitat and potential management considerations.

The physical or biological features in the occupied areas in Unit 1 are also essential to the conservation of

Astragalus lentiginosus

var.

coachellae

because they support the westernmost occurrences of the taxon. Because of their geographic location, these plants and their habitat receive more rainfall than occurrences and suitable habitat farther east, which allows many individuals to survive more than one year, grow larger, and produce more seed, all of which promote the stability and reduce the chance of extirpation of the occurrences in this unit (Meinke

et al.

2007, p. 33). Also, due to strong winds moving through this area from the west to east, the occupied habitat in Unit 1 likely acts as a source of seed (and hence, a source of genetic diversity) for areas of suitable habitat to the southeast (Meinke

et al.

2007, p. 40). Unit 1 likely also contributes to the maintenance of genetic diversity in other occupied areas through the movement of pollinators (Meinke

et al.

2007, p. 37).

Unit 2: Whitewater River System

Unit 2 consists of 1,955 ac (791 ha) of Federal land; 19 ac (8 ha) of private land; and 176 ac (71 ha) of local government-owned land in the Coachella Valley, Riverside County. Unit 2 contains approximately 554 ac (224 ha) of unoccupied fluvial sand transport areas associated with the Whitewater River watershed. These areas are being designated under section 3(5)(A)(ii) of the Act because they are specific areas outside the geographical area occupied by the species at the time of listing and are essential for the conservation of the taxon. The remainder of Unit 2 consists of approximately 1,596 ac (646 ha) of occupied suitable habitat and is approximately bound by State Route 111 to the west, the Southern Pacific Railroad to the north and east, and dense urban development in the cities of Palm Springs and Cathedral City to the south. These areas are being designated under section 3(5)(A)(i) of the Act because they are within the geographical area occupied by the species at the time of listing and contain those physical or biological features essential to the conservation of the species. In total, Unit 2 consists of 2,150 ac (870 ha) of land.

Unoccupied fluvial sand transport areas in this unit contain active washes associated with Whitewater River, which carry substrates created by fluvial erosion of the surrounding hills to occupied fluvial deposition areas in Unit 2 on the valley floor (Griffiths

et al.

2002, pp. 10-11). The unoccupied areas in Unit 2 are essential for the conservation of

Astragalus lentiginosus

var.

coachellae

because they contain portions of the Whitewater River that support the fluvial sand transport process crucial to the maintenance of the sand formations that form the foundation of

A. l.

var.

coachellae

habitat in the occupied areas of Unit 2.

Occupied habitat areas of Unit 2 constitute one of the four main habitat areas supporting

Astragalus lentiginosus

var.

coachellae

(Coachella Valley MSHCP/NCCP, p. 9-21) and contain the physical or biological features essential to the conservation of

A. l.

var.

coachellae,

including active and ephemeral sand fields and stabilized and partially stabilized sand fields that provide substrate components and conditions suitable for the growth of

A. l.

var.

coachellae

(Coachella Valley MSHCP/NCCP 2008, Table 10-1a) and areas over which unobstructed aeolian sand transport can occur. The essential features in Unit 2 may require special management considerations or protection to address threats from nonnative plants, urban development, alteration of stream flow, unauthorized OHV activity in the occupied depositional areas, and threats from alteration of stream flow that impact habitat in occupied areas. Please see the

Special Management Considerations or Protection

section of this rule for a discussion of the threats to

A. l.

var.

coachellae

habitat and potential management considerations.

The physical or biological features in the occupied areas in Unit 2 are also essential to the conservation of

Astragalus lentiginosus

var.

coachellae

because they serve as a corridor between the habitat and occurrences to the west in Unit 1 and the habitat and occurrences to the east in Unit 3. Although Unit 2 does not serve as a substantial source of aeolian sand to Unit 3 relative to the onsite fluvial sand transport areas in Unit 3 (Mission Creek and Morongo Wash), it may serve as a corridor for gene flow by means of pollen and seed dispersal between Units 1, 2, and 3 due to dispersal of seeds from Unit 1 into Unit 2 and from Unit 2 into Unit 3, combined with movement of pollinators among the three units (Meinke

et al.

2007, p. 37).

Unit 3: Mission Creek/Morongo Wash System

Unit 3 consists of 502 ac (203 ha) of Federal land, 1,497 ac (606 ha) of private land, and 268 ac (108 ha) of local government-owned land in the Coachella Valley, Riverside County. Unit 3 contains approximately 1,055 ac (427 ha) of unoccupied fluvial sand transport area associated with the Mission Creek watershed and a portion of the Morongo Wash watershed (north of Pierson Boulevard). These areas are being designated under section 3(5)(A)(ii) of the Act because they are specific areas outside the geographical area occupied by the species at the time of listing and are essential for the conservation of the taxon. The remainder of Unit 3 consists of approximately 1,211 ac (490 ha) of occupied habitat and includes sand deposits on the floodplain terraces of Morongo Wash south of Pierson Boulevard, and fluvial depositional areas and aeolian transport and depositional areas approximately bound (clockwise from the western boundary) by Little Morongo Road, 18th Avenue, Palm Drive, 20th Avenue, Artesia Road, and Mihalyo Road, in or near the City of Desert Hot Springs. These areas are being designated under section 3(5)(A)(i) of the Act, because they are within the geographical area occupied by the species at the time of listing. In total, Unit 3 consists of 2,313 ac (936 ha) of land.

Unoccupied fluvial sand transport areas in this unit contain active washes associated with Mission Creek and Morongo Wash (north of Pierson Boulevard), which carry substrates created by fluvial erosion of the surrounding hills to occupied fluvial deposition areas in Unit 3 on the valley floor (Griffiths

et al.

2002, pp. 10-11). The unoccupied areas in Unit 3 are essential for the conservation of

Astragalus lentiginosus

var.

coachellae

because they contain portions of Mission Creek and Morongo Wash that support the fluvial sand transport process crucial to the maintenance of the sand formations that form the foundation of

A. l.

var.

coachellae

habitat in the occupied areas of Unit 3.

Occupied habitat areas of Unit 3 constitute one of the four main habitat areas supporting

Astragalus lentiginosus

var.

coachellae

(Coachella Valley MSHCP/NCCP, pp. 9-21-9-22) and contain the physical or biological features essential to the conservation of

A. l.

var.

coachellae

including stabilized and partially stabilized sand dunes, active and ephemeral sand fields, stabilized and partially stabilized sand fields, fluvial sand deposits on floodplain terraces of active washes (certain areas of Morongo Wash), and mesquite hummocks that provide substrate components and conditions suitable for the growth of

A. l.

var.

coachellae

(Coachella Valley MSHCP/NCCP 2008, Table 10-1a). Unit 3 also contains areas over which unobstructed aeolian sand transport can occur. The essential features in Unit 3 may require special management considerations or protection to address threats from nonnative plants, urban development, OHV use in the occupied floodplain terrace areas, and threats from alteration of stream flow that impact habitat in occupied areas. Please see the

Special Management Considerations or Protection

section of this rule for a discussion of the threats to

A. l.

var.

coachellae

habitat and potential management considerations.

The physical or biological features in occupied areas in Unit 3 are also essential to the conservation of

Astragalus lentiginosus

var.

coachellae

because they support the northernmost extent of the taxon's range and large occurrences containing high densities of the taxon. Each of these factors contributes to the overall genetic diversity of

A. l.

var.

coachellae

(Meinke

et al.

2007, p. 35) and the maintenance of genetic diversity via the movement of seeds and pollinators (Meinke

et al.

2007, p. 37). The large numbers of individuals also likely contribute numerous seeds to the soil seed bank. Unit 3 also contains the only area where

A. l.

var.

coachellae

is known to occur in large numbers on floodplain terraces of an active wash (Morongo Wash).

Unit 4: Thousand Palms System

Unit 4 consists of 3,670 ac (1,485 ha) of Federal land, and 182 ac (74 ha) of private land in the Coachella Valley, Riverside County. Unit 4 contains approximately 206 ac (83 ha) of unoccupied lands supporting fluvial sand transport and fluvial deposition (this unit contains alluvial sand deposition areas that are not occupied) associated with drainages originating in the Indio Hills. These areas are being designated under section 3(5)(A)(ii) of the Act because they are specific areas outside the geographical area occupied by the species at the time of listing and are essential for the conservation of the species. The remainder of Unit 4 consists of approximately 3,646 ac (1,475 ha) of occupied habitat area in the Thousand Palms Preserve along Ramon Road. These areas are being designated under section 3(5)(A)(i) of the Act because they are within the geographical area occupied by the

species at the time of listing and contain those physical or biological features essential to the conservation of the species. In total, Unit 4 consists of 3,851 ac (1,559 ha) of land.

Unoccupied areas in this unit contain active ephemeral washes that carry substrates from alluvial deposits to alluvial fan areas where they can be transported to occupied habitat areas via wind (Lancaster

et al.

1993, p. 28). The unoccupied areas in Unit 4 are essential for the conservation of

Astragalus lentiginosus

var.

coachellae

because they contain alluvial sand deposits that support the fluvial and aeolian sand transport processes crucial to the maintenance of the sand formations that form the foundation of

A. l.

var.

coachellae

habitat in the occupied areas of Unit 4.

Occupied habitat areas of Unit 4 constitute one of the four main habitat areas supporting

Astragalus lentiginosus

var.

coachellae

(Coachella Valley MSHCP/NCCP, p. 9-22) and contain the physical or biological features essential to the conservation of

A. l.

var.

coachellae,

including active dunes, active sand fields, and mesquite hummocks that provide substrate components and conditions suitable for the growth of

A. l.

var.

coachellae

(Coachella Valley MSHCP/NCCP 2008, Table 10-1a), and areas over which unobstructed aeolian sand transport can occur. The essential features in the occupied portion of Unit 4 may require special management considerations or protection to address threats from nonnative plants. According to Meinke

et al.

(2007, p. 18), this area supports infestations of

Brassica tournefortii

(Saharan mustard); researchers observed thousands of acres of

A. l.

var.

coachellae

habitat inundated with dense populations of this nonnative plant species. Existing suburban development may require active management measures (for example, collection of sand from developed areas for redistribution within the wind movement corridor). The expansion of new urban development in areas supporting fluvial sand transport and deposition is also a threat to the essential features in this unit that may require special management considerations or protection, as are unauthorized OHV activity and a proposed flood control project that could disrupt or permanently destroy the sand transport system in the Thousand Palms area by diverting drainages that provide sand to occupied areas during large flooding events. Please see the

Special Management Considerations or Protection

section of this rule for a discussion of the threats to

A. l.

var.

coachellae

habitat and potential management considerations.

The physical or biological features in the occupied areas of Unit 4 are also essential to the conservation of the species because they support occurrences containing large numbers of the taxon that contribute to the overall genetic diversity of

Astragalus lentiginosus

var.

coachellae

(Meinke

et al.

2007, p. 35) and because they are located in the southeasternmost portion of the taxon's range that is hydrologically independent and physically isolated from the other units. As such, this unit is important to help buffer excessive losses in other parts of the range.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.

Decisions by the 5th and 9th Circuit Courts of Appeals have invalidated our regulatory definition of “destruction or adverse modification” (50 CFR 402.02) (see

Gifford Pinchot Task Force

v.

U.S. Fish and Wildlife Service,

378 F.3d 1059 (9th Cir. 2004) and

Sierra Club

v.

U.S. Fish and Wildlife Service et al.,

245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species.

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. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251

et seq.

) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded or authorized, do not require section 7 consultation.

As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:

(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or

(2) A biological opinion for Federal actions that may affect, or are likely to adversely affect, listed species or critical habitat.

When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:

(1) Can be implemented in a manner consistent with the intended purpose of the action,

(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,

(3) Are economically and technologically feasible, and

(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.

Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or

control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.

Application of the “Adverse Modification” Standard

The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical or biological features to an extent that appreciably reduces the conservation value of critical habitat for

Astragalus lentiginosus

var.

coachellae.

As discussed above, the role of critical habitat is to support life-history needs of the species and provide for the conservation of the species. For

A. l.

var.

coachellae,

this includes supporting the sand formations that form the basis of the taxon's habitat and the areas over which the associated sand transport processes that sustain these sand formations occur.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.

Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for

Astragalus lentiginosus

var.

coachellae.

These activities include, but are not limited to:

(1) Actions that would interrupt the fluvial or aeolian transport of sand to areas occupied by

A. l.

var.

coachellae.

Such actions would lead to the degradation of the sand formations that form the basis of

A. l.

var.

coachellae

habitat by blocking sand from replenishing occupied areas where the sand is being removed by aeolian processes.

(2) Actions that would damage or kill plants that trap sand and create sand formations that support

A. l.

var.

coachellae

(such as hummocks that contain

Prosopis glandulosa

var.

torreyana

(honey mesquite)). These include actions that lower the groundwater table below the reach of root systems of plants such as

P. g.

var.

torreyana,

which results in the death of the plants, and the loss of the sand formations to wind erosion.

(3) Actions that alter waterways. Such actions could decrease the amount or alter the deposition location of sand entering the sand transport system, and thus reduce the amount of sand available for

A. l.

var.

coachellae

habitat.

(4) Actions that contribute to the introduction or proliferation of nonnative plants, such as

Brassica tournefortii

(Saharan mustard) and trees planted as windbreaks. Such actions may interfere with the movement of sand, which would prevent sand from moving downwind and contributing to the sand formations that form the basis of

A. l.

var.

coachellae

habitat.

(5) Actions such as development and landscaping that cover or remove substrate. Such actions convert suitable

A. l.

var.

coachellae

habitat to groundcover that does not support the taxon.

(6) Actions such as OHV use that disrupt substrates. Such actions can cause sufficient alteration of sand formations supporting

A. l.

var.

coachellae

occurrences to make the habitat unsuitable to support the taxon.

Exemptions

Application of Section 4(a)(3) of the Act

The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resources management plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes:

(1) An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species;

(2) A statement of goals and priorities;

(3) A detailed description of management actions to be implemented to provide for these ecological needs; and

(4) A monitoring and adaptive management plan.

Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws.

The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.”

There are no Department of Defense lands that meet the definition of critical habitat and, as a result, no lands have been exempted under section 4(a)(3)(B)(i) of the Act.

Exclusions

Application of Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.

In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise his discretion to exclude the area only if such exclusion would not result in the extinction of the species.

When identifying the benefits of inclusion for an area, we consider the additional regulatory benefits that area

would receive from the protection from destruction or adverse modification as a result of actions with a Federal nexus; the educational benefits of mapping essential habitat for recovery of the listed species; and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat.

When identifying the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan that provides equal to or more conservation than a critical habitat designation would provide.

In the case of

Astragalus lentiginosus

var.

coachellae,

the benefits of critical habitat include public awareness of

A. l.

var.

coachellae

presence and the importance of habitat protection, and in cases where a Federal nexus exists, increased habitat protection for

A. l.

var.

coachellae

due to the protection from destruction or adverse modification of critical habitat. In practice, a Federal nexus exists only on Federal land or for projects undertaken, funded, or requiring authorization by a Federal agency.

When we evaluate the existence of a conservation plan, we consider a variety of factors, including but not limited to, whether the plan is finalized; how it provides for the conservation of the essential physical or biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information.

After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.

Based on the information provided by entities seeking exclusion, as well as any additional public comments received, we evaluated whether certain lands in critical habitat Units 1 through 4 were appropriate for exclusion from this final designation pursuant to section 4(b)(2) of the Act. The Secretary is exercising his discretion to exclude several areas from critical habitat designation for

Astragalus lentiginosus

var.

coachellae.

Table 2 below provides approximate areas (ac, ha) of lands that meet the definition of critical habitat but are excluded under section 4(b)(2) of the Act in this final critical habitat rule.

Table 2—Area Excluded From Critical Habitat Designation by Critical Habitat Unit

Unit

Specific area

Area meeting the definition of critical habitat

acres

hectares

Area excluded from critical habitat

acres

hectares

1

Coachella Valley MSHCP/NCCP

1,898

768

1,898

768

Morongo Band of Mission Indians Lands

313

127

313

127

Unit 1 total

2,212

895

2,212

895

2

Coachella Valley MSHCP/NCCP

4,558

1,844

4,558

1,844

Agua Caliente Band of Cahuilla Indians Lands

579

234

579

234

Unit 2 total

5,137

2,078

5,137

2,078

3

Coachella Valley MSHCP/NCCP

5,491

2,222

5,491

2,222

4

Coachella Valley MSHCP/NCCP

3,193

1,292

3,193

1,292

Subtotal Coachella Valley MSHCP/NCCP

15,140

6,127

15,140

6,127

Subtotal Tribal lands

893

361

893

361

Total

15,874

6,413

15,874

6,413

We believe these areas are appropriate for exclusion under the “other relevant factor” provisions of section 4(b)(2) of the Act because:

(1) Their value for conservation will be preserved into the future by existing protective actions.

(2) Exclusion of these areas could help preserve the partnerships we developed with local stakeholders and encourage the establishment of future conservation and management of habitat for

Astragalus lentiginosus

var.

coachellae

and other sensitive taxa.

(3) Exclusion of these areas could help preserve our partnerships with tribes and foster future dialog and cooperative actions as well as development of habitat management plans on tribal lands.

Exclusions Based on Economic Impacts

Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we prepared a draft economic analysis of the proposed critical habitat designation (Industrial Economics, Inc. (IEc) 2012). The draft analysis, dated May 11, 2012, was made available for public review and comment from May 16 through June 15, 2012 (77 FR 28846; May 16, 2011). Following the close of the comment period, a final economic analysis (FEA) (dated January 29, 2013) of the potential economic effects of the designation was developed taking into consideration the public comments and any new information (IEc 2013).

The intent of the FEA is to quantify the economic impacts of all potential conservation efforts for

Astragalus lentiginosus

var.

coachellae;

some of these costs will likely be incurred regardless of whether we designate critical habitat (baseline). The economic impact of the critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species (for example, under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those

not expected to occur absent the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat above and beyond the baseline costs; these are the costs we consider in the final designation of critical habitat. The analysis looks retrospectively at baseline impacts incurred since the species was listed, and forecasts both baseline and incremental impacts likely to occur with the designation of critical habitat.

The FEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on government agencies, private businesses, and individuals. The FEA measures lost economic efficiency associated with residential and commercial development and public projects and activities, such as economic impacts on water management and transportation projects, Federal lands, small entities, and the energy industry. Decisionmakers can use this information to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, the FEA looks retrospectively at costs that have been incurred since 1998 (63 FR 53596, October 6, 1998), and considers those costs that may occur in the 20 years following the designation of critical habitat, which was determined to be the appropriate period for analysis because a 20-year analysis period reflects the maximum amount of time under which future activities and economic impacts associated with the designation can be reliably projected, given available data and information. The FEA quantifies economic impacts of

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conservation efforts associated with the following categories of activity: (1) Residential, commercial, and industrial development; (2) water management and use; (3) transportation activities; (4) energy development; (5) sand and gravel mining; and (6) Tribal activities.

The economic analysis includes high- and low-end estimates of incremental costs. Both estimates include the incremental impacts associated with addressing adverse modification in section 7 consultation. The high-end estimate also includes project modification costs associated with development in the City of Desert Hot Springs and railroad upgrades not covered by the Coachella Valley MSHCP/NCCP, as well as potential administrative costs incurred by the Agua Caliente Band of Cahuilla Indians. These costs are only included in the high estimate because of uncertainty over whether Desert Hot Springs will develop within the 100-year floodplain and whether railroad upgrades are likely, and because a public comment submitted by the Agua Caliente Band of Cahuilla Indians suggests that development may not occur within proposed revised critical habitat. As a result, the low-end impacts consist solely of administrative costs, except those that may be incurred by the Agua Caliente Band of Cahuilla Indians (IEc 2013, p. 4-2).

Implementation of conservation activities for residential, commercial, and industrial development is the largest cost category in the high-end estimate of incremental impacts. All of these costs are projected to occur in the unoccupied portion of Unit 3, within the City of Desert Hot Springs. Proponents of transportation activities, such as road and bridge construction and maintenance, are likely to experience the next largest impacts after residential, commercial, and industrial development. No incremental project modification costs are estimated for water management activities. Although two water districts, Metropolitan Water District of Southern California and the Desert Water Agency, may experience incremental impacts for projects occurring in unoccupied, fluvial habitat, characteristics of potential projects and specific project modifications that could be recommended for projects are uncertain. Project modification costs therefore could not be estimated. The FEA does not estimate any incremental project modification costs for energy projects, because these projects are located within occupied habitat, where we cannot reasonably differentiate between actions that avoid jeopardy to the species and actions needed solely to avoid destruction or adverse modification of critical habitat, and because the construction and development of new wind energy facilities is a covered activity under the MSHCP/NCCP. No incremental project modification costs are anticipated for mining activities.

The FEA also does not anticipate any incremental project modification costs on Agua Caliente Band of Cahuilla Indians lands because the proposed revised critical habitat on those lands is occupied habitat, where we cannot reasonably differentiate between actions that avoid jeopardy to the species and actions needed solely to avoid destruction or adverse modification of critical habitat. The Morongo Band of Mission Indians do not anticipate economic activity within proposed revised critical habitat on Morongo Band of Mission Indians lands, because these areas are located entirely within the floodplain; therefore, the FEA does not estimate any incremental project modification costs for Tribal activities. The total incremental impacts are estimated to be $270,000 to $880,000 ($24,000 to $77,000 annualized) in present-value terms using a 7 percent discount rate over the next 20 years (2012 to 2032) in areas proposed as revised critical habitat (IEc 2012, pp. ES-2-ES-3, ES-7-ES-9).

Our economic analysis did not identify any disproportionate costs that are likely to result from the designation. Consequently, the Secretary has determined not to exercise his discretion to exclude any areas from this designation of critical habitat for

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based on economic impacts.

A copy of the FEA with supporting documents is available at

http://www.fws.gov/carlsbad/GIS/CFWOGIS.html, http://www.regulations.gov

at Docket No. FWS-R8-ES-2011-0064, and at the Carlsbad Fish and Wildlife Office (see

FOR FURTHER INFORMATION CONTACT

).

Exclusions Based on National Security Impacts

Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense (DOD) where a national security impact might exist. In preparing this final rule, we have determined that the lands meeting the definition of critical habitat for

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are not owned or managed by the Department of Defense, and, therefore, we anticipate no impact on national security. Consequently, the Secretary is not exercising his discretion to exclude any areas from this final designation based on impacts on national security.

Exclusions Based on Other Relevant Impacts

Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors, including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any tribal issues, and consider the government-to-government relationship of the United States with tribal entities. We also

consider any social impacts that might occur because of the designation.

Land and Resource Management Plans, Conservation Plans, or Agreements Based on Conservation Partnerships

When we evaluate whether a current land management or conservation plan (HCPs as well as other types) provides adequate management or protection, we consider a variety of factors, including but not limited to, whether the plan is finalized; how it provides for the conservation of the essential physical or biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information.

We believe that the Coachella Valley Multiple Species Habitat Conservation Plan and Natural Community Conservation Plan (Coachella Valley MSHCP/NCCP) provides adequate management or protection for the taxon, and, to continue and strengthen our conservation partnerships with the plan's participants and to foster additional partnerships, the Secretary is exercising his discretion to exclude lands covered by this plan that provide for the conservation of

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. Details of our analysis for this plan are described below.

Exclusions Under Section 4(b)(2) of the Act—Coachella Valley MSHCP/NCCP

The Coachella Valley MSHCP/NCCP is a large-scale, multijurisdictional habitat conservation plan encompassing about 1.1 million ac (445,156 ha) in the Coachella Valley of central Riverside County. The Coachella Valley MSHCP/NCCP is also a “Subregional Plan” under the State of California's Natural Community Conservation Planning (NCCP) Act, as amended. An additional 69,000 ac (27,923 ha) of tribal reservation lands distributed within the plan area boundary are not included in the Coachella Valley MSHCP/NCCP. The Coachella Valley MSHCP/NCCP addresses 27 listed and unlisted “covered species,” including

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. On October 1, 2008, the Service issued a single incidental take permit (TE-104604-0) under section 10(a)(1)(B) of the Act to 19 permittees under the Coachella Valley MSHCP/NCCP for a period of 75 years. Participants in the Coachella Valley MSHCP/NCCP include eight cities (Cathedral City, Coachella, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs, and Rancho Mirage); the County of Riverside, including the Riverside County Flood Control and Water Conservation District, Riverside County Parks and Open Space District, and Riverside County Waste Management District; the Coachella Valley Association of Governments; Coachella Valley Water District; Imperial Irrigation District; California Department of Transportation; California State Parks; Coachella Valley Mountains Conservancy; and the Coachella Valley Conservation Commission (the created joint powers regional authority). The Coachella Valley MSHCP/NCCP was designed to establish a multiple-species habitat conservation program that minimizes and mitigates the expected loss of habitat and incidental take of covered species, including

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(USFWS 2008, pp. 1-207, and Appendix A, pp. 10-50).

The permit covers incidental take resulting from habitat loss and disturbance associated with urban development and other proposed covered activities. These activities include public and private development within the plan area that requires discretionary and ministerial actions by permittees subject to consistency with the Coachella Valley MSHCP/NCCP policies. An associated Management and Monitoring Program is also included in the Coachella Valley MSHCP/NCCP and identifies specific management actions for the conservation of

Astragalus lentiginosus

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.

Approximately 36,398 ac (14,730 ha) of modeled habitat for

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occurs in the Coachella Valley MSHCP/NCCP Plan Area (Coachella Valley MSHCP/NCCP 2008, p. 9-25). Under the Coachella Valley MSHCP/NCCP, approximately 15,706 ac (6,356 ha) of modeled

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habitat will be lost to development. To mitigate this loss, the Coachella Valley MSHCP/NCCP will preserve 7,176 ac (2,904 ha) of modeled habitat for the taxon in perpetuity. Another 4,497 ac (1,820 ha) are anticipated to be conserved through complementary and cooperative efforts by Federal and State agencies and nongovernmental organizations. Additionally, 7,707 ac (3,118 ha) of

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modeled habitat within the Plan Area were preserved prior to completion of the Coachella Valley MSHCP/NCCP (acres which coincidentally occur on three Coachella Valley fringe-toed lizard (

Uma inornata

) reserves in the Coachella Valley Preserve System). These lands and the 11,650 ac (4,715 ha) of lands yet to be conserved under the Coachella Valley MSHCP/NCCP will total 19,357 ac (7,833 ha) of

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modeled habitat within the Coachella Valley MSHCP/NCCP Reserve System.

As habitat areas are acquired under the Coachella Valley MSHCP/NCCP, they are legally protected within the Reserve System and the direct impacts of development are precluded. All areas covered under the Coachella Valley MSHCP/NCCP that meet the definition of critical habitat for

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fall within the Conservation Areas of the HCP. The Conservation Areas of the Coachella Valley MSHCP/NCCP are predetermined areas that provide habitat for species covered under the plan; these areas are designed to conserve natural communities, ecological processes, and biological corridors and linkages between major habitat areas. The Coachella Valley MSHCP/NCCP Reserve System will be assembled from land conserved within these Conservation Areas. This protection, as well as implementation of the avoidance, minimization, and mitigation measures and management and monitoring programs identified in the Coachella Valley MSHCP/NCCP, will reduce impacts to this taxon compared to what would have occurred otherwise.

Benefits of Inclusion—Coachella Valley MSHCP/NCCP

Regulatory Benefits (Endangered Species Act)

The principal benefit of including an area in a critical habitat designation is the requirement of Federal agencies to ensure actions they fund, authorize, or carry out are not likely to result in the destruction or adverse modification of any designated critical habitat, the regulatory standard of section 7(a)(2) of the Act under which consultation is completed. Federal agencies must consult with the Service on actions that may affect critical habitat and must avoid destroying or adversely modifying critical habitat. Federal agencies must also consult with us on actions that may affect a listed species and refrain from undertaking actions that are likely to jeopardize the continued existence of such species. The analysis of effects to critical habitat is a separate and different analysis from that of the effects to the species. Therefore, the difference in outcomes of these two analyses represents the regulatory benefit of critical habitat. The regulatory standards are different, as the jeopardy analysis

investigates the action's impact on the survival and recovery of the species, while the adverse modification analysis focuses on the action's effects on the designated habitat's contribution to conservation. This will, in many instances, lead to different results and different regulatory requirements. Thus, critical habitat designations may provide greater benefits to the recovery of a species than would listing alone.

For some species (including

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), and in some locations (in particular, those occupied by the taxon), the outcome of these analyses will be similar, because effects to habitat will often also result in effects to the species and it is often difficult or impossible to differentiate between actions that avoid jeopardy to the species and actions needed solely to avoid destruction or adverse modification of critical habitat. However, much of the land considered for exclusion from this critical habitat designation is not occupied by the taxon (areas supporting fluvial sand transport processes). In these areas, impacts to critical habitat will not result in direct impacts to

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plants. Therefore, the outcome of an adverse modification analysis in these areas would differ from the outcome of a jeopardy analysis.

Critical habitat may provide a regulatory benefit for

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when there is a Federal nexus present for a project that might adversely modify critical habitat. A Federal nexus generally exists where land is federally owned, or where actions proposed on non-Federal lands require a Federal permit or Federal funding. In the absence of a Federal nexus, the regulatory benefit provided through section 7 consultation under the Act does not exist. Any activities over which a Federal agency has discretionary involvement or control affecting designated critical habitat on Federal land would trigger a duty to consult under section 7. However, no Federal lands are covered under the Coachella Valley MSHCP/NCCP.

The potential for a Federal nexus for activities proposed on non-Federal lands varies widely and depends on the particular circumstances of each case. Nevertheless, because the breadth of potential Federal actions that may trigger a duty to consult under section 7 is quite broad, we cannot say with certainty that future development of, or activities on, non-Federal lands will always lack a Federal nexus. In some portions of the lands identified as critical habitat for

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that are covered under the Coachella Valley MSHCP/NCCP, a Federal nexus seems possible despite the areas in question not being on Federal lands. The unoccupied fluvial sand transport areas of the essential habitat covered under the Coachella Valley MSHCP/NCCP may fall within the jurisdiction of the U.S. Army Corps of Engineers (Corps) pursuant to section 404 of the Clean Water Act. Therefore, we expect there will be a Federal nexus for projects in the fluvial sand transport areas, as projects that impact these areas may require Corps permits. Also, highway or railroad improvement projects on lands adjacent to Interstate Highway 10 or the Southern Pacific railway line that are covered by the Coachella Valley MSHCP/NCCP may have a Federal nexus via the U.S. Department of Transportation. Thus, designation of these areas as critical habitat for

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could provide a regulatory benefit. However, where there is no discernible Federal nexus on lands covered under the Coachella Valley MSHCP/NCCP that we've identified as critical habitat for

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we consider the regulatory benefit of designation of those non-Federal lands to be small.

If protections provided by critical habitat designation are redundant with protections already in place on lands identified as areas that meet the definition of critical habitat for

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the benefits of inclusion in critical habitat are reduced. All areas that meet the definition of critical habitat covered under the Coachella Valley MSHCP/NCCP fall within the Conservation Areas of the HCP. Within the Conservation Areas, protections afforded

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and its habitat by the Coachella Valley MSHCP/NCCP include, for example, requiring permittees to comply with applicable avoidance, minimization, and mitigation measures and land-use adjacency guidelines (standards delineated for land uses adjacent to or within Conservation Areas necessary to avoid or minimize edge effects), and conservation of suitable habitat and those areas supporting the geomorphologic processes sustaining the sand formations in those areas (sand transport system) (Coachella Valley MSHCP/NCCP 2008, Section 4 and Section 9.2.2).

Protective measures required by the Coachella Valley MSHCP/NCCP for the conservation of

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habitat in the Conservation Areas are similar to protections that we would require through consultation provisions under section 7(a)(2) of the Act for

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critical habitat. Adding another layer of regulatory protections by designating critical habitat on lands in the Conservation Areas of the Coachella Valley MSHCP/NCCP, therefore, will not likely add any protection for the taxon. In some rare cases, the amount or type of protection required by a consultation under section 7(a)(2) of the Act to address impacts to critical habitat could differ from the protective measures provided by the Coachella Valley MSHCP/NCCP; however, we do not know under what circumstances this would occur, if ever. For these reasons, we believe the protections provided by the Coachella Valley MSHCP/NCCP in the Conservation Areas substantially diminish any regulatory benefits of designating critical habitat on these lands.

Educational Benefit

Designating critical habitat also can be beneficial because the process of proposing critical habitat provides the opportunity for peer review and public comment on lands we propose to designate as critical habitat, our criteria used to identify those lands, potential impacts from the proposal, and information on the taxon itself. The designation of critical habitat may generally provide previously unavailable information to the public. Public education regarding the potential conservation value of an area may also help focus conservation and management efforts on areas of high conservation value for certain species. Information about

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and its habitat that reaches a wide audience, including parties concerned about and engaged in conservation activities, is valuable because the public may not be aware of documented (or undocumented)

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occurrences and unoccupied areas supporting sand transport processes that have not been conserved or are not being managed.

However, the educational benefits of designating critical habitat for

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are small and largely redundant to those derived through conservation efforts currently being implemented in the private and permittee-owned or controlled lands covered under the Coachella Valley MSHCP/NCCP. As described above, the process of developing the Coachella Valley MSHCP/NCCP has involved several partners including (but not limited to) the eight participating local jurisdictions, Riverside County,

California Department of Fish and Game, and Federal agencies. The educational benefits of critical habitat designation derived through informing Coachella Valley MSHCP/NCCP partners and other members of the public of areas important for the long-term conservation of

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have already been and continue to be achieved through development and implementation of the Coachella Valley MSHCP/NCCP. We, therefore, believe that the educational benefits of designating critical habitat for

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on lands covered under the Coachella Valley MSHCP/NCCP are small.

Educational benefits of designating critical habitat for

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are also largely redundant to those derived through the publication of the previous proposed and final critical habitat rules for

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These documents discuss

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biology and habitat requirements, the location of areas containing the physical or biological features essential to the conservation of the taxon, and the importance of areas supporting sand transport processes needed to maintain suitable habitat for the taxon. Because this information was made available to the public in these documents, we believe there is little educational benefit of designating critical habitat for

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Regulatory Benefit (Other State, Local, and Federal Laws)

The designation of critical habitat for some species may also strengthen or reinforce some of the provisions in other State and Federal laws, such as the California Environmental Quality Act (CEQA). These laws analyze the potential for projects to significantly affect the environment. To date, the local jurisdictions have not required additional measures associated with critical habitat for any species in their discretionary approval processes (for example, pursuant to CEQA), and are unlikely to do so in the future. This potential benefit is, therefore, negligible in the Coachella Valley.

In summary, we believe that the regulatory benefit through section 7(a)(2) of the Act of designating critical habitat is small on non-Federal lands covered under the Coachella Valley MSHCP/NCCP and occupied by

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because the likelihood of a future Federal nexus in these areas is small, and because the existing protections afforded the taxon and its habitat by the Coachella Valley MSHCP/NCCP likely diminish any regulatory benefits that might be gained. The regulatory benefit of designation is likely higher in unoccupied fluvial sand transport areas, due to the greater possibility for a Federal nexus (via permits required for impacts to “Waters of the United States” by the Corps). However, the benefits of inclusion are similarly diminished in the fluvial sand transport areas by the protections provided by the Coachella Valley MSHCP/NCCP. Additionally, we believe the educational benefits of designating critical habitat for

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on lands covered by the Coachella Valley MSHCP/NCCP are small due to stakeholder involvement in the design and implementation of the Coachella Valley MSHCP/NCCP and publication of relevant information in the previous proposed and final critical habitat rules in 2004 and 2005. There are no potential ancillary benefits under other laws that would result from designation of non-Federal lands in the Coachella Valley.

Benefits of Exclusion—Coachella Valley MSHCP/NCCP

We believe conservation benefits would be realized by forgoing designation of critical habitat for

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on lands covered by the Coachella Valley MSHCP/NCCP, including: (1) Continuance and strengthening of our effective working relationships with all Coachella Valley MSHCP/NCCP jurisdictions and stakeholders to promote conservation of the

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its habitat, and 26 other taxa covered by the HCP and their habitat; (2) allowance for continued meaningful collaboration and cooperation in working toward protecting and recovering this taxon and the many other taxa covered by the HCP, including conservation benefits that might not otherwise occur; (3) encouragement for local jurisdictions to fully participate in the Coachella Valley MSHCP/NCCP; and (4) encouragement of additional HCP and other conservation plan development in the future on other private lands for this and other federally listed and sensitive taxa.

In the case of

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in the Coachella Valley, the partnership and commitment by the permittees of the Coachella Valley MSHCP/NCCP resulted in lands being conserved and managed for the long term that will contribute to the recovery of the taxon.

We developed a close partnership with the permittees of the Coachella Valley MSHCP/NCCP through the development of the HCP, which incorporates protections (conserved lands) and management for

Astragalus lentiginosus

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its habitat, the fluvial sand transport areas, and the physical or biological features essential to the conservation of this taxon. Additionally, many landowners perceive critical habitat as an unfair and unnecessary regulatory burden given the expense and time involved in developing and implementing complex regional and jurisdiction-wide HCPs, such as the Coachella Valley MSHCP/NCCP (as discussed further in Comment 15 below in the Summary of Comments and Recommendations section of this rule). Exclusion of Coachella Valley MSHCP/NCCP lands could help preserve the partnerships we developed with the County of Riverside, Coachella Valley Association of Governments, and other local jurisdictions in the development of the HCP, foster future partnerships and development of future HCPs, and encourage the establishment of future conservation and management of habitat for

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and other sensitive taxa.

The Coachella Valley MSHCP/NCCP provides substantial protection and management for

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the fluvial sand transport areas, and the physical or biological features essential to the conservation of the taxon. It also addresses conservation issues from a coordinated, integrated perspective rather than a piecemeal, project-by-project approach (as would occur under section 7 of the Act or through smaller HCPs), thus resulting in coordinated landscape-scale conservation that can contribute to genetic diversity by preserving covered species populations, habitat, and interconnected linkage areas that support recovery of

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and other listed taxa. Also, because impacts to plant species do not require an incidental take permit, protections that plants receive under HCPs related to covered activities without a Federal nexus are benefits that most likely would not be realized otherwise. Additionally, in order for the conservation anticipated by the Coachella Valley MSHCP/NCCP to be fully realized, it is vital that permittees continue to work with the Service during the implementation process to ensure the goals of the plan are met despite unanticipated issues that are likely to arise given the scope and complexity of the plan. Therefore, it is important that we encourage full participation in such plans and encourage voluntary coverage of listed plant taxa in such plans.

In summary, we believe excluding land covered by the Coachella Valley MSHCP/NCCP from critical habitat will

provide the significant benefit of maintaining existing regional HCP partnerships and fostering new ones.

Weighing Benefits of Exclusion Against Benefits of Inclusion—Coachella Valley MSHCP/NCCP

We reviewed and evaluated the exclusion of approximately 15,140 ac (6,127 ha) of land within the boundaries of the Coachella Valley MSHCP/NCCP from our revised designation of critical habitat, and we determined the benefits of excluding these lands outweigh the benefits of including them. The regulatory benefits of including the portion of these lands occupied by

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in the designation are small because of the unlikelihood of a Federal nexus. The regulatory benefits of including the portion of these lands not occupied by the taxon (areas supporting fluvial sand transport processes) are greater due to the possibility of a Federal nexus through the Corps. However, these benefits are reduced by the existence of protections provided through the Coachella Valley MSHCP/NCCP that are mostly redundant to the regulatory protections that would be achieved through designation of critical habitat. The educational benefits of including lands covered under the Coachella Valley MSHCP/NCCP are small in occupied areas and unoccupied areas.

We believe the benefits of excluding lands covered by the Coachella Valley MSHCP/NCCP from critical habitat are more significant. Exclusion of these lands from critical habitat will help preserve the partnerships we have developed with local jurisdictions and project proponents through the development and ongoing implementation of the Coachella Valley MSHCP/NCCP and aid in fostering future partnerships for the benefit of listed species. Designation of lands covered by the Coachella Valley MSHCP/NCCP may discourage other partners from seeking, amending, or completing HCCP/NCCP plans that cover

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and other listed taxa. Designation of critical habitat does not require that management or recovery actions take place on the lands included in the designation. The Coachella Valley MSHCP/NCCP, however, will provide for significant conservation and management of

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and its habitat and help achieve recovery of this species through habitat enhancement and restoration, functional connections to adjoining habitat, and monitoring efforts. Additional HCPs or other management plans potentially fostered by this exclusion would also help to recover this and other federally listed species. Therefore, in consideration of the relevant impact to current and future partnerships, as summarized in the

Benefits of Exclusion—Coachella Valley MSHCP/NCCP

section above, we determined the significant benefits of exclusion outweigh the benefits of critical habitat designation.

Exclusion Will Not Result in Extinction of the Species—Coachella Valley MSHCP/NCCP

We determined that the exclusion of 15,140 ac (6,127 ha) of land within the boundaries of the Coachella Valley MSHCP/NCCP from the designation of critical habitat for

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will not result in extinction of the taxon. Protections afforded the taxon and its habitat by the Coachella Valley MSHCP/NCCP provide assurances that the taxon will not go extinct as a result of excluding these lands from the critical habitat designation. The jeopardy standard of section 7 of the Act will also provide protection in occupied areas when there is a Federal nexus. Therefore, based on the above discussion, the Secretary is exercising his discretion to exclude 15,140 ac (6,127 ha) of land within the boundaries of the Coachella Valley MSHCP/NCCP from this final critical habitat designation.

Exclusions Under Section 4(b)(2) of the Act—Tribal Lands

In accordance with the Secretarial Order 3206, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” (June 5, 1997); the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951); Executive Order 13175; and the relevant provision of the Departmental Manual of the Department of the Interior (512 DM 2), we believe that fish, wildlife, and other natural resources on tribal lands are better managed under tribal authorities, policies, and programs than through Federal regulation wherever possible and practicable. Based on this philosophy, we believe that, in most cases, designation of tribal lands as critical habitat provides very little additional benefit to federally listed species. Conversely, such designation is often viewed by tribes as an unwarranted and unwanted intrusion into tribal self-governance, thus compromising the government-to-government relationship essential to achieving our mutual goals of managing for healthy ecosystems upon which the viability of threatened and endangered species populations depend. We take into consideration our partnerships and existing conservation actions that tribes have implemented or are currently implementing when conducting our analysis under section 4(b)(2) of the Act in this final revised critical habitat designation. We also take into consideration conservation actions that are planned as part of our ongoing commitment to the government-to-government relationship with tribes. Section 4(b)(2) of the Act allows the Secretary to exclude areas from critical habitat based on economic impacts, impacts to National security, or other relevant impacts if the Secretary determines that the benefits of such exclusion outweigh the benefits of designating the area as critical habitat. However, an exclusion cannot occur if it will result in the extinction of the species concerned.

We determined approximately 893 ac (361 ha) of lands owned by or under the jurisdiction of two Tribes meet the definition of critical habitat under the Act. These tribal lands are found within Units 1 and 2, and are owned by or under the jurisdiction of the Morongo Band of Mission Indians and the Agua Caliente Band of Cahuilla Indians. In making our final decision with regard to these tribal lands, we considered the factors listed above. Under section 4(b)(2) of the Act, the Secretary is exercising his discretion to exclude approximately 893 ac (361 ha) of land comprised of all reservation lands from this final revised critical habitat designation (this is all of the tribal land proposed as critical habitat for

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). As described in our analysis below, this conclusion was reached after considering the relevant impacts of specifying these areas as critical habitat.

For our 4(b)(2) balancing analysis we considered our partnership with the Agua Caliente Band of Cahuilla Indians and analyzed the benefits of including and excluding those lands within the Agua Caliente Band of Cahuilla Indians Reservation boundary that meet the definition of critical habitat. The Agua Caliente Indian Reservation consists of approximately 31,500 acres of land in a checkerboard of parcels found primarily in the City of Palm Springs, and the Cities of Cathedral City and Rancho Mirage, and unincorporated Riverside County, California. This area includes approximately 579 ac (234 ha) that meet the definition of

Astragalus lentiginosus

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critical habitat in Unit 2, all of which are within the Agua Caliente Band of Cahuilla Indians

Reservation boundary. The Agua Caliente Band of Cahuilla Indians has worked with our office to develop a draft HCP that includes

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as a covered taxon, and includes conservation measures for the taxon and its habitat. Although the Agua Caliente Band of Cahuilla Indians notified us in a letter dated October 6, 2010, that they suspended their pursuit of a Section 10(a) permit for their draft HCP (ACBCI 2010a, p. 1), they consider the draft plan to be a Tribal-approved, final document and implement it as such for land-use planning on all Reservation lands. The Tribe is continuing to implement the conservation strategies outlined in the document, and has expressed their intention to continue to do so (Park 2011, p. 1; pers. com. J. McBride, 2012) and protect and manage natural resources within their jurisdiction (ACBCI 2010b, p. ES-1; Park 2011, p. 1).

The Tribe is implementing numerous provisions aimed specifically at protecting

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habitat (ACBCI 2010b, pp. 2-3, 4-32, 4-53, 4-67, 4-106)), including in areas meeting the definition of critical habitat for the taxon. Conservation objectives for

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include avoidance, minimization, and/or mitigation of impacts to active or ephemeral sand fields within the Section 6 Target Acquisition Area (most of the Agua Caliente Band of Cahuilla Indians lands that meet the definition of critical habitat for

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are within the Section 6 (Township 4 South, Range 5 East) Target Acquisition Area, which contains the sand formations that form the basis of

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habitat (see

Primary Constituent Element for

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coachellae section above)). Within the Section 6 Target Acquisition Area, acquisition or dedication of lands to the Habitat Preserve and management in perpetuity is targeted to occur for mitigation of impacts to covered species (including

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). The Tribe anticipates conservation of at least 177 acres within the Section 6 Target Acquisition Area, and acquisition of a minimum of 640 acres of habitat for conservation in other areas that are potentially suitable to support the taxon. We anticipate that these provisions and others aimed at avoiding direct and indirect impacts to the taxon and avoiding, minimizing, or mitigating impacts to its habitat, sand sources, and sand transport will play an important role in conserving the taxon and preventing adverse alteration of

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habitat.

We determined approximately 313 ac (127 ha) of lands owned by or under the jurisdiction of the Morongo Band of Mission Indians meet the definition of critical habitat under the Act for

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For our section 4(b)(2) balancing analysis we considered our partnership with the Tribe and analyzed the benefits of including and excluding those lands within the Morongo Band of Mission Indians Reservation boundary that meet the definition of critical habitat.

The Morongo Band of Mission Indians (formerly the Morongo Band of Cahuilla Mission Indians of the Morongo Reservation) Reservation consists of over 35,000 ac of land on the western end of the Coachella Valley. This area includes approximately 313 ac (12 ha) that meet the definition of

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critical habitat in Unit 1. Almost all (97 percent) of these Tribal lands identified as essential for the conservation of

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are fluvial sand transport areas not occupied by the taxon. The Morongo Band of Mission Indians has not completed a management plan that specifically provides for conservation of processes contributing to the maintenance of

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habitat. However, the Tribe has land designations and management policies and practices that contribute to the conservation of the fluvial sand transport areas identified as essential habitat for

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(Martin 2011, pp. 1-2).

For example, human impacts will be limited in the areas meeting the definition of critical habitat due to their significant value to the Tribe in their natural state, and because they are subject to natural hazards, minimizing their development value. Also, the Morongo Band of Mission Indians have instituted an ordinance limiting recreational OHV use to areas where such activities will not impact fluvial sand transport or habitat areas. Additionally, the Morongo Environmental Protection Department—Resource Conservation program has implemented nonnative species removal projects throughout Morongo Band of Mission Indians lands with consultation from the Inland Empire Resource Conservation District and the Natural Resources Conservation Service (U.S. Department of Agriculture). Over 65 percent of the Morongo Band of Mission Indians lands are listed as “Open Space/Conservation element areas” in the Morongo Band of Mission Indians General Plan, including active ephemeral washes that contribute to the San Gorgonio River fluvial sand transport system and large areas unobstructed by development, that contain suitable habitat with intact wind and depositional regimes. We anticipate that the Morongo Band of Mission Indians' dedication to maintaining natural resources and minimizing impacts to those resources on their lands will contribute greatly to the conservation of

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its habitat, and sand transport processes on the Morongo Band of Mission Indians Reservation.

Most of the lands that meet the definition of critical habitat within the Morongo Band of Mission Indians Reservation are areas supporting the fluvial transport of sand carried by the San Gorgonio River into areas occupied by major occurrences of

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Lands that meet the definition of critical habitat within the Agua Caliente Indian Reservation are all areas with sand formations that form the basis of suitable habitat for

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Activities on lands that meet the definition of critical habitat within these tribal reservations could affect the taxon directly and also affect sand transport processes. Therefore, we want to foster strong partnerships with these Tribes and work cooperatively toward conservation of

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Benefits of Inclusion—Tribal Lands

Regulatory Benefits (Endangered Species Act)

The principal benefit of including an area in a critical habitat designation is the requirement of Federal agencies to ensure actions they fund, authorize, or carry out are not likely to result in the destruction or adverse modification of any designated critical habitat, the regulatory standard of section 7(a)(2) of the Act under which consultation is completed. Federal agencies must consult with the Service on actions that may affect critical habitat and must avoid destroying or adversely modifying critical habitat. Federal agencies must also consult with us on actions that may affect a listed species and refrain from undertaking actions that are likely to jeopardize the continued existence of such species. The analysis of effects to critical habitat is a separate and different analysis from that of the effects to the species. Therefore, the difference in outcomes of these two analyses represents the regulatory benefit of critical habitat. The regulatory standards are different, as the jeopardy analysis investigates the action's impact on the survival and recovery of the species, while the adverse modification analysis focuses on the action's effects on the designated habitat's contribution to

conservation. This will, in many instances, lead to different results and different regulatory requirements. Thus, critical habitat designations may provide greater benefits to the recovery of a species than would listing alone, especially in instances when critical habitat has been designated where the species does not occur.

Critical habitat may provide a regulatory benefit for

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when there is a Federal nexus present for a project that might adversely modify critical habitat. On tribal reservations there is a Federal nexus through the Bureau of Indian Affairs (BIA) for projects that could adversely modify critical habitat. Therefore, there may be a regulatory benefit of including the tribal lands in the designation, as some projects on tribal lands identified as essential habitat within Units 1 and 2 may require consultation with the Service.

However, if protections provided by critical habitat are redundant with protections already in place, the benefits of inclusion in critical habitat are reduced. As discussed above, although the Agua Caliente Band of Cahuilla Indians are no longer pursuing a Section 10(a) permit for their draft HCP (ACBCI 2010a, p. 1), the Tribe is continuing to implement the conservation strategies outlined in the document, and plans to continue doing so (Park 2011, p. 1; pers. com. J. McBride, 2012). The protections afforded sand transport processes and

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habitat by these conservation strategies provide for avoidance, minimization, and mitigation of impacts to

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habitat, and habitat conservation and management (see above discussion of conservation objectives on Agua Caliente Band of Cahuilla Indians lands for more detail). Morongo Band of Mission Indians also provides protection for sand transport processes and

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habitat through Tribal ordinances, management activities, protections provided in the Tribe's General Plan, and the fact that the Tribe considers Tribal lands meeting the definition of critical habitat to be of significant value in their natural state. The regulatory benefits of designating critical habitat for

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on Agua Caliente Band of Cahuilla Indians and Morongo Band of Mission Indians lands are reduced by these protections, which are to some extent redundant to the regulatory protections provided by critical habitat designation. We expect that the avoidance and minimization of impacts to, and conservation of,

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habitat that would likely result from consultation under section 7 of the Act on designated Tribal lands where there is a Federal nexus would be similar to the protections already put in place by the Tribes. Therefore, we anticipate the regulatory benefit of including the tribal lands in the designation to be small.

Educational Benefit

Designating critical habitat also can be beneficial because the process of proposing critical habitat provides the opportunity for peer review and public comment on lands we propose to designate as critical habitat, our criteria used to identify those lands, potential impacts from the proposal, and information on the taxon itself. We believe the designation of critical habitat may generally provide previously unavailable information to the public. Public education regarding the potential conservation value of an area may also help focus conservation and management efforts on areas of high conservation value for certain species. Information about

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and its habitat that reaches a wide audience, including parties concerned about and engaged in conservation activities, is valuable because the public may not be aware of documented (or undocumented)

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occurrences and unoccupied areas supporting sand transport processes that have not been conserved or are not being managed.

Due to the existence of survey data and development of the Agua Caliente Band of Cahuilla Indians' draft HCP, stakeholders in the region are likely aware of the existence of

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on the portions of Agua Caliente Band of Cahuilla Indians lands proposed as critical habitat and the importance of these areas to the conservation of the taxon. Morongo Band of Mission Indians lands in Unit 1 consist entirely of areas not occupied by

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that support fluvial sand transport processes crucial to maintaining the sand formations in Unit 1 upon which the taxon depends. During the development of the proposed revised critical habitat rule, we met with representatives from the Morongo Band of Mission Indians and the BIA to inform them of the proposal. As a result of this meeting and further interactions with tribal representatives and the BIA, we believe the importance of the fluvial sand transport areas on Morongo Band of Mission Indians lands to the conservation of

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has been amply communicated to those with the most direct influence over the management of these areas. The public and local stakeholders have also been made aware of the importance of these areas to

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conservation through the development and implementation of the Coachella Valley MSHCP/NCCP. We, therefore, believe there is no significant educational benefit to including Tribal lands in the designation.

Educational benefits of designating critical habitat for

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are also largely redundant to those derived through the publication of the previous proposed and final critical habitat rules for

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These documents discuss

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biology and habitat requirements, the location of areas containing the physical or biological features essential to the conservation of the taxon, and the importance of areas supporting sand transport processes needed to maintain suitable habitat for the taxon. Because this information was made available to the public in these documents, we believe there is little educational benefit of designating critical habitat for

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coachellae.

Regulatory Benefit (Other State, Local, and Federal Laws)

The designation of critical habitat for some species may also strengthen or reinforce some of the provisions in other State and Federal laws, such as the California Environmental Quality Act (CEQA). These laws analyze the potential for projects to significantly affect the environment. To date, the local jurisdictions have not required additional measures associated with critical habitat in their discretionary approval processes (for example, pursuant to the California Environmental Quality Act), and are unlikely to do so in the future. This potential benefit is, therefore, negligible in the Coachella Valley.

In summary, we believe there would likely only be a minimal regulatory benefit of

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critical habitat designation on Agua Caliente Band of Cahuilla Indians and Morongo Band of Mission Indians lands, and no significant educational benefits.

Benefits of Exclusion—Tribal Lands

We believe significant benefits would be realized by forgoing designation of critical habitat on reservation lands managed by the Agua Caliente Band of Cahuilla Indians and the Morongo Band of Mission Indians. These benefits include:

(1) Continuance and strengthening of our effective working relationships with all tribes to promote conservation of

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and its habitat;

(2) Allowance for continued meaningful collaboration and cooperation in working

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