# Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Astragalus lentiginosus var. coachellae (Coachella Valley Milk-Vetch) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2013-03109 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** February 13, 2013 - **Citation:** 78 FR 10450 ## Text 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 A. l. 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 A. l. var. coachellae . The settlement required the Service to submit a proposed revised critical habitat designation for A. l. 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 A. l. 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 A. l. var. 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 A. l. var. coachellae signed on September 1, 2009 (Service 2009). We have determined that A. l. 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 A. l. 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 A. l. 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. var. 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 Astragalus lentiginosus var. coachellae 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 Astragalus lentiginosus var. coachellae 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 Astragalus lentiginosus var. coachellae 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 Astragalus lentiginosus var. coachellae . 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 Astragalus lentiginosus var. coachellae . 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 A. l. var. coachellae (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 var. coachellae . Approximately 36,398 ac (14,730 ha) of modeled habitat for Astragalus lentiginosus var. coachellae 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 A. l. var. coachellae 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 A. l. var. coachellae 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 A. l. var. coachellae 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 A. l. var. coachellae 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 Astragalus lentiginosus var. coachellae ), 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2013-03109. Public record. Not legal advice.