Endangered and Threatened Wildlife and Plants; Determination of Endangered or Threatened Status for Five Desert Milk-vetch Taxa From California

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AB75

Endangered and Threatened Wildlife and Plants; Determination of

Endangered or Threatened Status for Five Desert Milk-vetch Taxa From

California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) determines

endangered status pursuant to the Endangered Species Act of 1973, as

amended, (Act) for three plants--Astragalus jaegerianus (Lane Mountain

milk-vetch), Astragalus lentiginosus var. coachellae (Coachella Valley

milk-vetch), and Astragalus tricarinatus (triple-ribbed milk-vetch);

and threatened status for two plants, Astragalus lentiginosus var.

piscinensis (Fish Slough milk-vetch), and Astragalus magdalenae var.

peirsonii (Peirson's milk-vetch). Many taxa in the genus Astragalus,

including the taxa covered by this rule, are endemic to habitats with

specific substrate or hydrologic conditions and are, therefore,

naturally limited in distribution by the availability of habitat. The

five taxa in this rule occur in specific habitats within the three

deserts of California; the Sonoran, Mojave, and Great Basin deserts.

Astragalus jaegerianus occurs in granitic soils in San Bernardino

County; A. lentiginosus var. coachellae occurs in the dune system of

the Coachella Valley in Riverside County; A. lentiginosus var.

piscinensis grows in moist alkaline flats near the border of Inyo and

Mono counties; A. tricarinatus occurs in canyon slopes and washes in

Riverside and San Bernardino counties and A. magdalenae var. peirsonii

occurs primarily on dunes in Imperial County.

These five plant taxa are threatened by one or more of the

following--mining, urban development, off-highway vehicle (OHV) use and

recreational development, pipeline maintenance, alteration of a wetland

ecosystem, and low recruitment possibly due to rabbit herbivory or

altered soil hydrology following fishery enhancement activities.

Military training, and cattle grazing are potential threats. Two of the

taxa are known from fewer than 200 individuals during the last decade.

They are vulnerable to extinction from random natural events

[[Page 53597]]

or unplanned activities that can destroy a substantial portion of

remaining individuals. This rule implements the protection and recovery

provisions afforded by the Act for these plants.

DATES: This rule is effective on November 5, 1998.

ADDRESSES: The complete file for this rule is available for inspection,

by appointment, during normal business hours at the U.S. Fish and

Wildlife Service, Ventura Field Office, 2493 Portola Road, Suite B,

Ventura, California, 93003.

FOR FURTHER INFORMATION CONTACT: Diane Steeck, Botanist, at the above

address (telephone 805/644-1766).

SUPPLEMENTARY INFORMATION:

Background

The genus Astragalus, in the pea family (Fabaceae), is well

represented in North America with close to 400 species. In California,

the genus is highly diversified in the deserts and surrounding desert

ranges. Astragalus jaegerianus (Lane Mountain milk-vetch), Astragalus

lentiginosus var. coachellae (Coachella Valley milk-vetch), Astragalus

lentiginosus var. piscinensis (Fish Slough milk-vetch), Astragalus

magdalenae var. peirsonii (Peirson's milk-vetch), and Astragalus

tricarinatus (triple-ribbed milk-vetch) are adapted to habitats with

specific substrate or hydrologic conditions in the three deserts that

occur in California. The southernmost desert, the Sonoran (or Colorado)

Desert, includes the southeastern corner of California and the

Coachella Valley, and extends southward into Mexico. The Sonoran Desert

occurs at elevations primarily below 600 meters (m) (2,000 feet (ft)),

where a diverse mixture of cacti and succulent plants comprise a

significant component of the vegetation. To the north of the Sonoran

Desert lies the Mojave Desert, with a transitional zone between these

deserts occurring within the bounds of Joshua Tree National Park. The

Mojave Desert, at elevations primarily between 600 and 1,200 m (2,000

and 4,000 ft), is characterized by the presence of Joshua trees (Yucca

brevifolia) scattered within creosote bush (Larrea tridentata) scrub.

The Great Basin Desert covers most of Nevada as well as portions of

Utah, Idaho, and Oregon. In California, the Great Basin Desert extends

from the Oregon border southward along the east side of the Sierra

Nevada range, where it intergrades with the Mojave Desert in southern

Owens Valley. The Great Basin Desert, at elevations above 1,200 m

(4,000 ft), is characterized by the dominance of sagebrush (Artemisia

spp.). Descriptions of Mojave and Sonoran Desert plant communities can

be found in Rowlands et al. (1982), Thorne (1982), Thorne (1986), Vasek

and Barbour (1988), and Burk (1988). The sagebrush-dominated

communities of the Great Basin Desert are described by Young et al.

(1986) and Holland and Keil (1990).

Discussion of the Five Taxa

Astragalus jaegerianus (Lane Mountain milk-vetch) was described by

Philip A. Munz (1941) based on a specimen he collected ''. * * * 2

miles south of Jay Mine, about 12 miles south of Goldstone * * *'' in

San Bernardino County, in April 1941. This species has been

consistently recognized by botanists in floristic treatments (Munz and

Keck 1959, Munz 1974, Spellenberg 1993).

Astragalus jaegerianus is a wispy perennial that is somewhat woody

at the base, with stems 30 to 50 centimeters (cm) (12 to 20 inches

(in)) long, that often grow in a zigzag pattern, usually up through low

bushes. Leaves have 7 to 15 silvery pubescent linear leaflets, 5 to 25

millimeters (mm) (0.2 to 1.0 in) long. The flowers, 5 to 15 per stalk,

are cream to purple, or lighter with veins of a deeper color. The keel

petals are less than 10 mm (0.4 in) long. Fruits are pencil-shaped,

linear, smooth, and pendant, 16 to 25 mm (0.6 to 1.0 in) long.

After the early collections in 1939 and 1941, the plant was not

collected again until it was rediscovered in 1985 about 8 kilometers

(km) (5 miles (mi)) north of the presumed type locality. A total of 87

plants were counted (Mark Bagley, John Chesnut, and Mary DeDecker, in

litt. 1985). Intensive surveys over the next seven years led to the

discovery of a few additional small populations. The most recently

discovered population, located a few miles west of Lane Mountain,

closely approximates the type locality (Connie Rutherford, U.S. Fish

and Wildlife Service (Service), in litt. 1992; Brandt et al. 1993).

Currently, Astragalus jaegerianus is known from four general sites.

Three of the sites occur within an area of about 35 square km (14 sq

mi) and the plants within each site are widely scattered. Fewer than

130 plants have been located at these three sites in the last decade,

although repeated searches of suitable habitat have been made (J.

Chestnut, M. Bagley, and M. DeDecker, in litt. 1985; Brandt et al.

1993; C. Rutherford, in litt. 1995). The fourth site, near Lane

Mountain, is located about 14 km (9 mi) to the south. No more than 30

plants have been found at the Lane Mountain site since its discovery in

1992 (Connie Rutherford, Service, pers. comm. 1996). At the northern

sites, A. jaegerianus occurs on lands managed by the Department of

Defense (DOD) at the National Training Center (NTC) of Fort Irwin, and

on adjacent lands managed by the Bureau of Land Management (BLM). At

the southernmost site, near Lane Mountain, plants are known to occur on

BLM lands, although Lane Mountain Mesa is a patchwork of public and

private lands.

At the northern sites, Astragalus jaegerianus has been found most

often in shrub associations where Mormon tea (Ephedra nevadensis) or

Cooper goldenbush (Ericameria cooperi) are the dominant or subdominant

shrub species within the larger creosote bush/white bursage (Larrea

tridentata/Ambrosia dumosa) community (Brandt et al 1993). At all

sites, Astragalus jaegerianus plants are almost exclusively found

growing up through shrubs or, occasionally, through clumps of dead

bunchgrass (Brandt et al 1993; C. Rutherford, pers. comm. 1996). On the

NTC, Astragalus jaegerianus grows in granitic soils that are more

coarse, at least on the surface, than surrounding soils (Brandt et al

1993).

Threats to Astragalus jaegerianus include habitat destruction from

dry wash gold mining, other mining activities (materials lease mining),

rock and mineral collecting, off-highway vehicle (OHV) activity, and

potentially from increasing fire frequency and any associated fire

suppression activities. At the time the proposed rule was being

prepared, military vehicle maneuvers occurred in the plant's habitat.

Since that time, the military has installed protective fencing;

however, trespass by military vehicles remains a potential threat until

the efficacy of the fencing can be determined. In addition, an

expansion of the NTC at Fort Irwin onto surrounding BLM lands has been

proposed. Although the location of the expansion has not yet been

chosen, locations that support A. jaegerianus are being considered. Few

individuals combined with the proximity of the species to roads and

active mining areas in both the northern and Lane Mountain sites, and

to private lands and dwellings at the Lane Mountain site, make A.

jaegerianus vulnerable to unplanned, potentially destructive, human

activities. In the proposed rule, sheep grazing was considered a minor

threat. Sheep grazing no longer occurs on the lands where A.

jaegerianus grows (Tom Eagen, BLM, pers. comm. 1996).

Astragalus lentiginosus was first described by Sir William Jackson

Hooker (1831) based on a specimen collected by David Douglas in the ``.

. .

[[Page 53598]]

subalpine ranges of the Blue Mountains [Oregon] of North-West

America.'' The species has been placed in three different genera--

Tragacantha lentiginosa (Kuntze 1891), Phaca lentiginosa (Piper 1906),

and Cystium lentiginosum (Rydberg 1913). However, these segregate

genera have not been sustained in the literature and this species is

currently recognized as Astragalus lentiginosus (Barneby 1945, Munz and

Keck 1959, Munz 1974, Spellenberg 1993). The epithet lentiginosus means

``freckled'' and refers to its mottled fruit or pod.

Astragalus lentiginosus var. coachellae (Coachella Valley milk-

vetch) was described by Rupert Barneby in Shreve and Wiggins (1964)

based on a 1913 collection by Alice Eastwood near Palm Springs,

Riverside County. Prior to publication of this variety, Barneby (1945)

had included this taxon under A. lentiginosus var. coulteri.

Subsequently, Barneby determined that variety coulteri was based upon

material that was quite different, resulting in the description of the

variety coachellae. The recent treatment by Spellenberg (1993) supports

Barneby's treatment.

Astragalus lentiginosus var. coachellae is an erect winter annual

or short-lived perennial, 20 to 30 centimeters (cm) (8 to 12 in) tall

and covered with white-silky hairs. The flowers are deep pink-purple,

in a loose or dense 13-to 25-flowered raceme (an inflorescence in which

stalked flowers are arranged singly along a central stem). The two-

chambered fruits are strongly inflated.

Astragalus lentiginosus var. coachellae is found on loose wind-

blown or alluvial sands on dunes or flats in the Coachella Valley,

Riverside County, California. Barneby (1964) described this taxon as

``. . . apparently confined to Coachella Valley . . . ,'' although in

1973, he identified specimens collected from an area about 80 km (50

mi) to the east, near Desert Center, as A. lentiginosus var. coachellae

(specimens located at the herbarium of Rancho Santa Ana Botanic Garden;

Gary D. Wallace, Service, pers. comm. 1996). Currently, populations are

known only from the Coachella Valley between Cabazon and Indio

(California Natural Diversity Database (CNDDB) 1996; Katie Barrows,

Coachella Mountains Conservancy, in litt. 1996).

The historical abundance of Astragalus lentiginosus var. coachellae

in the Coachella Valley is unknown. Twenty to twenty-five

``occurrences'' of A. lentiginosus var. coachellae have been recorded

as extant within the past decade (CNDDB 1996; K. Barrows, in litt.

1996) and 90 percent of these are located within 5 km (3 mi) of

Interstate 10 from north of Indio to Cabazon (Barrows 1987, CNDDB 1996,

K. Barrows, in litt. 1996). About 20 to 25 percent of the occurrences

of A. lentiginosus var. coachellae are protected in the three preserves

of the Coachella Valley Preserve System. The largest preserve protects

populations of A. lentiginosus var. coachellae in the southeastern part

of its range and two other preserves in the central range of this taxon

also support populations. The Coachella Valley Preserve System, jointly

owned and managed by the BLM, The Nature Conservancy (TNC), California

Department of Fish and Game (CDFG), California Department of Parks and

Recreation, and the Service, was established in 1986 to conserve

habitat for the federally threatened Coachella Valley fringe-toed

lizard (Uma inornata), and other taxa endemic to the habitats of the

Coachella Valley. None of the plants in the northwestern part of the

range of A. lentiginosus var. coachellae are currently protected,

although acquisition of habitat in this region is being considered by

the Coachella Valley Mountains Conservancy (K. Barrows, pers. comm.

1996). About 75 to 80 percent of the occurrences of A. lentiginosus

var. coachellae are located on unprotected lands. Of those, about 7

percent are on lands owned by Southern California Edison, about 7

percent are on lands owned by the Agua Caliente Indian Reservation, and

the remainder are privately owned.

Population sizes vary widely from year to year, depending on

environmental conditions, making assessment of total numbers of

individual plants difficult. At sites where Astragalus lentiginosus

var. coachellae was monitored in 1995, densities varied from 1.25

plants per hectare (ha) (.67 plants per acre (ac)) to 60 plants per ha

(24 plants per ac) (Sanders and Thomas Olsen Associates 1995). One of

the largest known remaining sites for this taxon occurs in the north,

near Snow Creek Road. In 1995, this area supported about 60 plants per

ha (24 plants per ac), the greatest densities of A. lentiginosus var.

coachellae found during 1995 surveys (Barrows 1987, Sanders and Thomas

Olsen Associates 1995).

The primary threat to Astragalus lentiginosus var. coachellae is

habitat destruction due to the extensive urban development occurring in

the Coachella Valley. Urbanization destroys populations by direct

conversion of the land on which they occur and by altering or reducing

the source and transport of blow sands that maintain the sand habitats

of the Coachella Valley. Populations of A. lentiginosus var. coachellae

have been altered by development of wind energy parks and degraded by

OHV use (Barrows 1987; K. Barrows, pers. comm. 1996). Initially, A.

lentiginosus var. coachellae may respond favorably to low-levels of

artificial disturbance, but its long-term response in these situations

is unknown (Stevens and Pearson 1984; BLM, in litt. 1992; Pearson in

litt. 1993).

Astragalus lentiginosus var. piscinensis (Fish Slough milk-vetch)

was described by Barneby (1977) based on a collection made by Mary

DeDecker in 1974, from BLM Spring, Fish Slough, northwest of Bishop.

Spellenberg (1993) retained this variety in his treatment of

Astragalus. The plant is a prostrate perennial, with few-branching

stems that are up to 1 m (3 ft) long and are covered with stiff

appressed hairs. The leaflets are reduced to only 1 to 2 pairs

laterally, with a greatly elongated terminal leaflet. The lavender

flowers are arranged in loose but short 5-to 12-flowered racemes. The

fruits are papery, strongly inflated with a complete septum, and are

covered with appressed hairs.

Astragalus lentiginosus var. piscinensis is restricted to a 6-mile

stretch of alkaline flats paralleling Fish Slough, a desert wetland

ecosystem in Inyo and Mono counties, California. It grows in seasonally

moist alkaline flats that support a cordgrass-dropseed (Spartina-

Sporobolis) association and is absent from nearby lower areas that are

seasonally flooded (Ferren 1991a; Wayne Ferren, University of

California at Santa Barbara, in litt. 1992). Appropriate alkali habitat

covers less than 219 ha (540 ac) of the slough and portions of this

area do not currently support A. lentiginosus var. piscinensis, for

unknown reasons (Ferren 1991, Odion et al. 1991).

At the time this taxon was proposed, the total number of plants at

Fish Slough was thought to be about 700. In 1992, during intensive

surveys of all potential habitat of Astragalus lentiginosus var.

piscinensis within Fish Slough, about 3,200 individuals were found

widely scattered or grouped over approximately 212 ha (530 ac) (Patti

Novak, Los Angeles Department of Water and Power (LADWP), in litt.

1992). This first complete, intensive, survey for this species was

conducted over several days and covered all suitable alkali habitat at

Fish Slough. During the survey, several of the previously monitored

sites were found to be much greater in extent than had been previously

known. However, one site that had supported six plants in

[[Page 53599]]

earlier visits failed to support any, and another previously recorded

site showed a substantial decline--44 plants in 1983, 29 in 1985, and 8

in 1992. The four-fold increase in the total number of plants

encountered in the 1992 survey does not suggest an increase or decrease

in population size, but provides the first comprehensive data on the

species-wide abundance of A. lentiginosus var. piscinensis. Over 60

percent of this population is located in the northern portion of the

slough on land owned by the LADWP and approximately 35 percent of known

A. lentiginosus var. piscinensis plants grow in the central zone of the

slough on lands owned and managed by both BLM and LADWP. About 5

percent are in scattered patches downstream as far as McNally Canal,

but Fish Slough is narrow at its southern end, with little suitable

habitat (P. Novak, in litt. 1992; W. Ferren, in litt. 1992).

In 1991, LADWP constructed a 32 ha (80 ac) cattle exclosure at the

northern end of the slough. In 1992, over 95 percent of the Astragalus

lentiginosus var. piscinensis plants in the northern zone were within

the exclosure. Other than the area encompassed by the exclosure in the

north end of Fish Slough, lands under LADWP management that support

this taxon are grazed (Paula Hubbard, LADWP, pers. comm. 1996). Grazing

is not permitted in the habitat of A. lentiginosus var. piscinensis on

lands managed by BLM, in the central zone of the slough.

Current threats to Astragalus lentiginosus var. picinensis include

a lack of recruitment in the central zone population of Fish Slough,

trampling and grazing by cattle, modification of wetlands, and

alteration of slough hydrology. A long-term threat may be the expansion

of Fish Slough Lake, which may be due to natural geologic processes or

the existence of Red Willow Dam, resulting in increased inundation of

soils and loss of suitable alkali habitat for this taxon (W. Ferren

1991c, W. Ferren, in litt. 1992). Historical alterations of the Fish

Slough ecosystem to enhance fisheries appear to have caused similar

increases in seasonally flooded habitats, which are less suitable for

A. lentiginosus var. piscinensis. Modifications include creation of

dams and weirs in the main slough channel, construction of a dirt road

through milk-vetch habitat, and soil compaction and trail creation by

cattle. These activities have altered the slough hydrology by causing

an increase in permanently flooded habitats, artificial ponding,

alteration in drainage patterns, and changes in seasonal flooding of

milk-vetch habitat. These changes have resulted in expansion of

emergent wetland vegetation and conversion of alkali flat habitats

which support A. lentiginosus var. piscinensis to other vegetation

types (Ferren 1991b; Ferren in litt. 1992). Trampling and grazing by

cattle, and associated ecological changes, also potentially threaten

this taxon.

Astragalus magdalenae var. peirsonii (Peirson's milk-vetch) was

originally described as A. peirsonii by Munz and McBurney from two

collections (cotypes) from sand dunes west of Yuma in Imperial County,

California (Munz 1932). One specimen was collected by Munz and

Hitchcock in 1932, while the other was collected by Frank Peirson, for

whom the taxon was named, in 1927. Astragalus peirsonii was variously

included with A. crotalariae var. piscinus (Jepson 1936) and A. niveus

(Barneby 1944), before its affiliation with A. magdalenae was clarified

(Barneby 1958).

Astragalus magdalenae var. peirsonii is a stout, short-lived

perennial reaching 20 to 70 cm (8 to 27 in) high. The stems and leaves

are covered with fine silky hairs and the leaves are 5 to 15 cm (2 to 6

in) long, with 3 to 13 small oblong leaflets. The flowers are dull

purple, arranged in 10- to 17-flowered racemes and the resulting pods

are 2 to 3.5 cm (0.8 to 1.4 in) long, inflated, with a triangular beak.

The variety peirsonii is separated from two other varieties of A.

magdalenae based on the number of leaflets, the length of the

peduncles, and the length and diameter of the fruits. With a length of

4.5 to 5.5 mm (0.2 in), A. magdalenae var. peirsonii has the largest

seeds of any Astragalus in North America (Barneby 1964).

Astragalus magdalenae var. peirsonii grows in the Sonoran Desert,

on the slopes and hollows of windblown dunes. According to Munz and

Keck (1959) and Barneby (1964), it is known from the Borrego Valley, in

San Diego County, and the Algodones Dunes, in Imperial County, which

extend just south of the International Border into northeastern Baja

California (Westec 1977). Since the proposed rule was published, the

Service has also become aware of collections of A. magdalenae var.

peirsonii from the Gran Desierto in Sonora, Mexico. The specimens from

Sonora were all collected south and southeast of the Sierra Pinacate

lava field in the southern Gran Desierto over a 15-year period (Richard

Felger, Drylands Institute, pers. comm. 1996; J. Rebman, San Diego

Museum of Natural History, pers. comm. 1996; Alan Romspert, California

Desert Studies Center, pers. comm. 1996; Gary D. Wallace, Service,

pers. comm. 1996). The Service is unaware of any information that A.

magdalenae var. peirsonii occurs elsewhere in the Gran Desierto, and

could not locate any information on size of populations that occur in

the Gran Desierto. Although Wiggins (1980) included San Felipe, in

central Baja California, within the range of this taxon, no collections

of variety peirsonii could be located from that region. Botanists

preparing a flora for the area have located other varieties of A.

magdalenae from the dunes of the San Felipe area, but not variety

peirsonii (Jon Rebman, San Diego Museum of Natural History Herbarium,

pers. comm. 1996). A report of A. magdalenae var. peirsonii occurring

in the dunes west-southwest of the Salton Sea in Imperial County,

California, remains unconfirmed (CDFG, Natural Diversity Database

record 1996).

Within San Diego County, Astragalus magdalenae var. peirsonii has

not been seen for several decades (M. Beauchamp, Pacific Southwest

Biological Services, pers. comm. 1996). Surveys in 1978 failed to

locate the variety in the Borrego Valley where it was originally

collected (Spolsky 1978), and a portion of the dune habitat in Borrego

Valley is currently used as a county landfill (Jim Dice, CDFG, pers.

comm. 1996). A major landowner in the area, the California Department

of Parks and Recreation, does not have any information or reports of

this taxon occurring in Anza Borrego Desert State Park (Paul Johnson,

Anza Borrego Desert State Park, pers. comm. 1996).

The only location where the Service could confirm that Astragalus

magdalenae var. peirsonii is extant in the United States is on the

Algodones Dunes, an active dune system located southeast of the Salton

Sea and extending south about 2.5 km (1.5 mi) into Baja California

(Westec 1977, BLM 1987). In 1977, a survey of the sensitive plant taxa

of the Algodones Dunes showed that A. magdalenae var. peirsonii was

distributed in what can be considered one extensive population of

scattered colonies spanning the length of the dune system, primarily

along its western side. The Algodones Dunes are a linear dune system,

approximately 64 km (40 mi) long and 8 km (5 mi) wide, supporting

several species of plants and animals that occur only in dune systems

in the Sonoran Desert (Westec 1977, BLM 1987). Managed by the BLM, the

Algodones Dunes, also known as the Imperial Sand Dunes Recreation Area,

are the most intensively used OHV recreation area in California's

deserts, attracting several hundred thousand OHV users each year (BLM

1987).

[[Page 53600]]

The primary threat to Astragalus magdalenae var. peirsonii is

destruction of individuals and dune habitat from OHV use and the

recreational development associated with it. Approximately 75 percent

of the Algodones Dune system is open to motorized vehicle use (BLM

1987) and between 75 and 80 percent of all known colonies of A.

magdalenae var. peirsonii in 1977 are within those areas. The greatest

concentration of colonies was located in the central dunes, within a 4-

mile radius of the southern end of Gecko Road (Westec 1977), an area

that has since been more fully developed for recreational use (BLM

1987). Surveyors in 1977 reported that no seedlings of any of the

sensitive plant taxa, including A. magdalenae var. peirsonii, could be

found in areas receiving heavy OHV use (Westec 1977), and large areas

receiving intensive OHV use showed a virtually complete loss of all

plant cover (Bury and Luckenback 1983). By 1990, colonies of mature A.

magdalenae var. peirsonii plants could not be located in areas of heavy

OHV use and colonies located in areas receiving moderate OHV use had

lower reproductive success and poorer health than comparable

populations located in areas closed to OHVs (ECOS 1990).

Approximately 9,300 ha (23,000 ac), or 18 percent, of the Algodones

Dunes has been closed to motorized vehicle use since 1972 (BLM 1987).

In 1994, most of this closed area and an extension to the north, a

total of 13,060 ha (32,240 ac) or about 25 percent of the dune system,

was designated the North Algodones Dunes Wilderness (CDPA 1994; T.

Finger, BLM, pers. comm. 1996). The wilderness, a linear section of the

northern dunes, is bounded by an area designated for intensive OHV use

to the north and by Highway 78 and an intensively-used OHV area to the

south. Approximately 20-25 percent of the known colonies of Astragalus

magdalenae var. peirsonii occur in the wilderness area (Westec 1977).

Astragalus tricarinatus (triple-ribbed milk-vetch) was described by

Asa Gray (1876) based on a specimen collected by Charles C. Parry at

Whitewater Canyon, Riverside County in 1876. Per Axel Rydberg (1927)

transferred this species to the segregate genus Hamosa, as H.

tricarinata. This combination was not widely accepted and the species

continues to be listed as A. tricarinatus in floristic treatments

(Jepson 1936, Munz and Keck 1959, Shreve and Wiggins 1964, Munz 1974,

Spellenberg 1993).

Astragalus tricarinatus is a short-lived erect perennial, reaching

5 to 25 cm (2 to 10 in) in height. Leaves are 7 to 20 cm (1.3 to 2.7

in) long, with 17 to 20 leaflets that are silvery strigose on the upper

surface. The flowers are white or pale cream-colored, arranged in loose

6-to 17-flowered racemes. The fruit is narrow, 2 to 4 cm (0.8 to 1.6

in) long, glabrous and distinctly three-ribbed.

Astragalus tricarinatus grows in sandy and gravelly soils in dry

washes, at the base of canyon slopes, and on steep scree slopes of

decomposed granite (Barrows 1987b, Sanders and Thomas Olsen Associates

1995). Although A. tricarinatus is a short-lived perennial, its numbers

fluctuate significantly from year to year and the species may not be

present above-ground in drought years (Barrows 1987b; Robin Kobaly,

BLM, pers. comm. 1996).

According to Munz and Keck (1959) the range of Astragalus

tricarinatus extends from Morongo and Whitewater Pass, located at the

north end of the Coachella Valley, south to the Orocopia Mountains.

During the last 2 decades, A. tricarinatus has been located in four

areas--in the north at Big Morongo Canyon and its tributary canyons; at

two nearby locations at Whitewater Canyon and Mission Creek; and at a

disjunct location about 40 miles to the south in Agua Alta Canyon.

The occurrence of Astragalus tricarinatus in Agua Alta Canyon was

discovered in 1985 by Jon Stewart and consisted of only one plant. The

taxon had not been seen during previous explorations of this canyon

wash nor has it been seen since, although the site was searched the

following two years (Jon Stewart, in litt. 1985; J. Stewart, pers.

comm., 1996). In the north, Whitewater Canyon is the type locality for

A. tricarinatus and specimens were collected there in the 1940s, 1960s

and mid 1980s (A. Sanders, herbarium of University of California at

Riverside, pers. comm. 1996). A search of the east ridge of Whitewater

Canyon over several days in 1995 failed to locate a population there,

although a single immature plant was discovered in alluvial sands from

the wash (A. Sanders, pers. comm., 1996). The Mission Creek occurrence

is also known from only one plant, discovered during 1995 surveys for

this taxon (Sanders and Thomas Olsen Associates 1995). Although A.

tricarinatus has the potential to occur in other canyons within its

range, populations of greater than one plant are currently known only

from Big Morongo Canyon and may occur at Whitewater Canyon.

Astragalus tricarinatus at Big Morongo Canyon is within the Big

Morongo Preserve, managed by the BLM. In 1984 one site in Big Morongo

Canyon that supported fewer than 10 plants was bulldozed during

maintenance for a gas pipeline (Barrows 1987b). No plants have been

found at that site since 1984, although searches were conducted in

1987, 1992, and 1994 (Barrows 1987b, Carol Jacobsen, in litt. 1993,

Mathews 1994). A. tricarinatus also occurs 3 to 4 km (2 mi) farther

down Big Morongo Canyon and within the mouths of two tributary canyons.

In 1992 botanists surveyed this region and counted 70 plants in 5

groupings scattered along a 2 to 3 km (1 to 2 mi) stretch of canyon

floor (C. Jacobsen, in litt. 1993). In 1993, 33 plants were counted

along this same stretch (Roland DeGouvenian, BLM, in litt. 1993) and in

1994 a total of 20 plants in 5 patches were found there (Mathews 1994).

In spring of 1995, the Four Corners Pipeline Company conducted

substantial earth-moving activities along this stretch of Big Morongo

Canyon to realign segments of a crude oil pipeline that had been

exposed during winter storms in 1992-1993 (Service 1995). In 1996,

weather conditions appeared poor for growth of Astragalus tricarinatus.

BLM staff conducted limited surveys and found no plants in the canyon,

in either disturbed or undisturbed areas (R. Kobaly, pers. comm. 1996).

Astragalus tricarinatus is threatened by maintenance activities for

the crude oil pipeline which runs through its habitat at Big Morongo

Canyon and by vehicle use in the canyons. Its limited number of

individuals make it especially vulnerable to unanticipated events, such

as pipeline leaks, breaks, or emergency repairs.

Previous Federal Action

Federal action on one of these plants began as a result of section

12 of the Act, which directed the Secretary of the Smithsonian

Institution to prepare a report on those plants considered to be

endangered, threatened, or extinct in the United States. This report,

designated as House Document No. 94-51, was presented to Congress on

January 9, 1975, and recommended Astragalus jaegerianus for endangered

status. The Service published a notice in the July 1, 1975, Federal

Register (40 FR 27823), of its acceptance of the report as a petition

within the context of section 4(c)(2) of the Act (petition provisions

are now found in section 4(b)(3)) and of the Service's intention

thereby to review the status of the plant taxa named therein, including

Astragalus jaegerianus. The Service published a proposal in the June

16, 1976, Federal Register (41 FR 24523) to determine approximately

1,700 vascular plant species to be endangered species pursuant to

section

[[Page 53601]]

4 of the Act. Astragalus jaegerianus was included in the June 16, 1976,

Federal Register document.

General comments received in regard to the 1976 proposal were

summarized in the April 26, 1978, Federal Register (43 FR 17909). The

Act Amendments of 1978 required that all proposals over two years old

be withdrawn. A one-year grace period was given to those proposals

already more than two years old. In the December 10, 1979, Federal

Register (44 FR 70796), the Service published a notice of withdrawal of

the June 6, 1976, proposal, along with four other proposals that had

expired.

The Service published an updated Notice of Review for plants in the

December 15, 1980 Federal Register (45 FR 82480). This notice included

Astragalus jaegerianus, A. lentiginosus var. coachellae, A.

lentiginosus var. piscinensis, and A. magdalenae var. peirsonii as

category 1 candidate species (species for which information in the

Service's possession was sufficient to support proposals for listing).

On November 28, 1983, the Service published in the Federal Register a

supplement to the Notice of Review (48 FR 53640), in which A.

jaegerianus and A. magdalenae var. peirsonii were included as category

2 candidate species (species for which information in the Service's

possession indicated listing may be appropriate, but for which

additional information was needed to support a proposed rule). The

plant notice was again revised on September 27, 1985 (50 FR 39526), and

on February 21, 1990 (55 FR 6184). In both of these notices, both

varieties of Astragalus lentiginosus were included as category 1

candidate species, while A. jaegerianus and A. magdalenae var.

peirsonii were included as a category 2 candidate species. Astragalus

tricarinatus was included in the February 21, 1990, notice for the

first time as a category 2 candidate (the use of candidate categories

has subsequently been discontinued by the Service (55 FR 7596)).

Section 4(b)(3)(B) of the Act requires the Secretary to make

certain findings on pending petitions within 12 months of their

receipt. Section 2(b)(1) of the 1982 amendments further requires that

all petitions pending on October 13, 1982, be treated as having been

newly submitted on that date. This was the case for Astragalus

jaegerianus because the 1975 Smithsonian report had been accepted as a

petition. On October 13, 1983, the Service found that the petitioned

listing of this species was warranted, but precluded by other pending

listing actions, in accordance with section 4(b)(3)(B)(iii) of the Act.

Notification of this finding was published on January 20, 1984 (49 FR

2485). The Act requires that following such a warranted but precluded

finding, the petition be recycled pursuant to section 4(b)(3)(C)(i).

The finding was reviewed in October of 1984, 1985, 1986, 1987, 1988,

1989, 1990, and 1991. Publication of the proposed rule constituted the

warranted finding for the petitioned taxa.

On May 8, 1992, the Service published a proposed rule in the

Federal Register (57 FR 19844) to list seven Astragalus taxa, including

the five taxa addressed in this rule. Astragalus jaegerianus and A.

magdalenae var. peirsonii were included in the proposal on the basis of

new information gathered during surveys performed in 1990 and 1991 that

resulted in their elevation to category 1 candidate status. Astragalus

tricarinatus was included in the proposal after a review of existing

information indicated that the species should be elevated to category 1

candidate status and that listing was warranted. The taxa included in

the proposed rule but not addressed in this document, A. lentiginosus

var. micans and A. lentiginosus var. sesquimetralis, are being

withdrawn and are addressed in a separate document published

concurrently in the proposed rule section of this issue of the Federal

Register.

The processing of this final rule conforms with the Service's Final

Listing Priority Guidance for Fiscal Year (FY) 1998 and 1999, published

in the Federal Register on May 8, 1998 (63 FR 25502). The guidance

clarifies the order in which the Service will process rulemakings. The

guidance calls for giving highest priority to handling emergency

situations (Tier 1), the second highest priority (Tier 2) includes

actions to--resolve the listing status of the outstanding proposed

listings, process new proposals to add species to the lists, and

process administrative petition findings on petitions to list, delist,

and reclassify species. This final rule for five desert milk-vetch

species from California falls under Tier 2. The species discussed in

this rule face high magnitude threats to their continued existence.

Tier 3 includes processing of critical habitat designations.

Comments received during the original comment period and the re-

opening of the public comment period in September 1996 (61 FR 46430)

for the proposed rule have resulted in new information that has been

incorporated into this final rule and the concurrently published

withdrawal for two of the species originally proposed for listing in

1992.

Summary of Comments and Recommendations

In the May 8, 1992, proposed rule and associated notifications, all

interested parties were requested to submit factual reports or

information that might contribute to the development of a final rule. A

60-day comment period closed on July 7, 1992. A final determination on

the proposal was delayed by other listing priorities, a limited budget,

and the Federal moratorium on final listing actions. Due to the amount

of time that had passed since the proposed rule was published, the

Service opened a second comment period for 45 days on September 3, 1996

(61 FR 46430). Appropriate State and Federal agencies, County

governments, scientific organizations, and other interested parties

were contacted and requested to comment. During the comment periods

newspaper notices were published in the Palm Springs Desert Sun (June

4, 1992; October 5, 1996), the Imperial Valley Press (May 28, 1992;

October 3, 1996), the San Bernardino Sun (June 2, 1992; October 7,

1996), the Barstow Desert Dispatch (October 3, 1996), and the Inyo

Register (May 29, 1992; October 2, 1996), inviting public comments on

the proposed rule.

Peer Review

In accordance with the interagency Peer Review Policy published on

July 1, 1994 (59 FR 34270), the Service solicited the expert opinions

of three independent specialists regarding pertinent scientific or

commercial data and assumptions relating to the taxonomy, population

estimations, and supportive biological and ecological information for

taxa under consideration for listing. The purpose of such review is to

ensure listing decisions are based on scientifically sound data,

assumptions, and analyses, including input of appropriate experts and

specialists. Two specialists responded and their comments on the

biology, population numbers and sizes, and threats, have been

incorporated into this rule and the concurrently published withdrawal.

During the two comment periods, the Service received comments from

23 parties addressing the listing of the 7 taxa included in the

proposed rule. Twelve commenters supported some or all of the proposed

action, six commenters opposed some or all of the proposed action, and

five commenters provided information or raised issues about which they

were concerned. Technical information provided by commenters has been

incorporated into this rule where appropriate. Comments

[[Page 53602]]

have been organized into specific issues. These issues and the

Service's response to each issue are summarized as follows.

Issue 1: Two commenters were concerned that the listing of

varieties is improper and constitutes a misuse of the Act. One of these

commenters elaborated that since subspecies contain the same genetic

makeup as the species with a slight variation, ``(i)f we save the

species as a whole, we will have the genetic basis from which the

subspecies evolved.''

Service Response: Section 3(16) of the Act states that ``(t)he term

`species' includes any subspecies of fish or wildlife or plants . . .

which interbreeds when mature.'' In response to concerns from the

Smithsonian Institution that the definition included subspecies but not

varieties, the Service discussed in a Federal Register notice published

on April 26, 1978 (43 FR 17912), the common use of both terms by

botanists, and concluded that plants named as ``varieties'' are

essentially subspecies and, therefore, ``species'' as defined in the

Act.

Issue 2: Two commenters asserted that insufficient data are

presented in the proposal on which to base the listing of these plants.

One of these commenters believed that not enough information was

presented about the biology of the species and that information

concerning the types of OHV activity that threaten the taxa should be

described more thoroughly.

Service Response: Section 4 of the Act directs the Service to use

the best scientific and commercial data available in preparation of

proposed and final rules. After reviewing new information available

since the original proposal was published and reevaluating existing

information, the Service is withdrawing the proposals to list two of

the taxa included in the proposed rule. For the five taxa being listed

in this final rule, the Service has presented adequate detail to

indicate the types of activities that threaten these taxa and to

discuss their biology. Readers wishing additional detailed information

should refer to the documents cited in the text.

Issue 3: Two commenters expressed the opinion that the listing of

Astragalus lentiginosus var. piscinensis is unnecessary because

sufficient protection from grazing and OHV use was provided by the

multi-agency management of the Fish Slough Area of Critical

Environmental Concern (ACEC). One commenter stated that no data exists

documenting that the species is threatened by OHV use, agricultural

discing, predation by rabbits, and groundwater pumping.

Service Response: The Service acknowledges that agricultural

discing is not currently known to be a threat to this taxon. Vehicle

use has, and continues to result in the loss of some habitat for

Astragalus lentiginosus var. piscinensis south of BLM Spring, on the

east side of the Slough, where a road currently bisects one population

(BLM, in litt. 1993; Diane Steeck, Service, pers. obs. 1996) and there

has been some OHV use of the area noted in the west-central area of the

Slough as recently as 1992 (P. Novak, in lit. 1992). The soil

compaction and topographical changes caused by roads can alter flooding

and draining of slough habitats, resulting in changes in length of

seasonal inundation to which the milk-vetch is subjected. Mazer and

Travers (1992) and Novak (in litt. 1992) have documented substantial

herbivory of the flowers and fruit of A. lentiginosus var. piscinensis

at Fish Slough.

The Service recognizes the efforts of all agencies involved in the

establishment of the Fish Slough ACEC and those cooperating in the

management of the ACEC. However, the suite of factors that threaten

Astragalus lentiginosus var. piscinensis are complex. Because of the

long narrow configuration of the Slough, bounded by uplands on both

sides, the specific alkali wetland habitat required by A. lentiginosus

var. piscinensis is limited. Human activities or natural changes in the

landscape that cause an increase in the area of seasonal flooding of

alkali habitat have decreased the habitat suitable for this taxon,

which tolerates seasonally moist, but not flooded soils. Monitoring

conducted by the BLM suggests a lack of recruitment in one population

of A. lentiginosus var. piscinensis in the central region of Fish

Slough. The reasons for this are as yet unexplained, but may include

rabbit herbivory or larger landscape changes (alterations in soil

hydrology or chemistry) that result in a decline in habitat

suitability.

The Service recognizes the efforts of the LADWP to protect

Astragalus lentiginosus var. piscinensis from the direct effects of

trampling in the north region of the Slough by constructing a fenced

exclosure, and commends the efforts of the BLM and LADWP to monitor the

status of the plant. The Service also recognizes that conflicts that

arise in the management of the Slough have not been easily resolved in

the past and that the past modifications of the slough environment have

caused changes in the hydrology that are not well understood nor easily

returned to their original condition. The Service maintains that

despite the best intentions of the current managing committee for the

Fish Slough ACEC, the threats facing the limited number of individuals

of A. lentiginosus var. piscinensis are important enough to warrant its

listing as threatened.

A draft Owens Basin Wetland and Aquatic Species Recovery Plan was

produced by the Service in 1996 that addressed Astragalus lentiginosus

var. piscinensis, two endangered fish species, and selected species of

concern. Public and agency comment on this plan was solicited during

two public comment periods--August 26, 1996, to October 25, 1996, and

January 13, 1997, to April 14, 1997. The Service is currently revising

the recovery criteria and discussion of A. lentiginosus var.

piscinensis to more accurately reflect the current knowledge of the

species' status and the activities needed to ensure its protection and

recovery in the Fish Slough ecosystem. Additional discussions of

Astragalus lentiginosus var. piscinensis are included under the

``Summary of Factors Affecting the Species'' section of this final

rule.

Issue 4: Two commenters in 1992 suggested that livestock grazing is

compatible with maintaining populations of Astragalus lentiginosus var.

piscinensis and one commenter, in 1996, stated that the Service did not

provide adequate evidence to support the conclusion that grazing was a

threat to this taxon. In 1996, one of the parties used data collected

by biologists from the grazed and ungrazed areas on LADWP lands to

conclude that, from 1991 to 1996, ``(t)he areas grazed by livestock

show an 8 percent increase in vetch [sic] populations.'' and ``(t)he

ungrazed area shows a 42 percent reduction in vetch [sic] numbers.''

Service Response: The LADWP gathered population trend data from 5

plots (radius 3.6 m (11.8 ft)) in the Fish Slough ecosystem from 1991

to 1996 (LADWP, in litt. 1996; Paula Hubbard, LADWP, pers. comm. 1996).

Two plots are located in the cattle exclosure in north Fish Slough and

have been inaccessible to cattle since 1991, one plot is north of this

exclosure in a pasture that receives cattle use, and two more are in

the middle region of Fish Slough, north of BLM Spring, in an area also

used by cattle.

The monitoring data indicate that the total number of plants in the

three plots from the grazed area consisted of 16 seedlings, 24 mature

plants, 0 immature plants in 1991 and 14 seedlings, 25 mature plants, 4

immature plants in 1996. Plots in the ungrazed exclosure supported 56

seedlings, 72 mature plants, 0 immature plants in 1991 and 0 seedlings,

83 mature plants, 1

[[Page 53603]]

immature plant in 1996. In arriving at the stated percentage increases

and declines the commenter used counts of total plants. Typically, when

biologists analyze simple changes in the sizes of plant populations,

they focus on changes in the number of mature individuals (plants of

reproductive size or age). Seedlings are typically not grouped with

mature plants because it is common for many more seedlings to emerge

initially than will survive to reproduce.

In the data described above, from 1991 to 1996 the combined number

of mature Astragalus lentiginosus var. piscinensis plants increased by

1 in the grazed plots (from 24 to 25 plants, a 4 percent increase) and

increased by 11 individuals in the ungrazed plots (from 72 to 83

plants, a 15 percent increase). These data show a slight increase in

numbers of mature plants in grazed plots and a larger increase in the

number of mature individuals in ungrazed plots from 1991 to 1996.

Several aspects of the data illustrate the need for a longer monitoring

period before drawing conclusions, however. First, in both grazed and

ungrazed areas the multiple plots failed to show consistent trends;

that is, of the two ungrazed plots, one showed an increase in the

number of mature plants from 1991 to 1996, the other a decrease. A

similar situation occurred in the grazed plots. The small number of

plots sampled make the data very susceptible to site differences that

may result from environmental conditions other than grazing. Secondly,

numbers of plants within a single plot fluctuated from year to year;

that is, none of the five plots showed a consistently increasing or

consistently declining trend. In this situation, using only two years

of data from the data set (for example, considering only the years 1991

and 1996) can lead to erroneous conclusions. These data suggest that

population growth is occurring in the north Fish Slough Area and north

of BLM Springs in both grazed and ungrazed areas. This potential growth

is important, since recruitment has not been observed in one area in

the central zone of the Slough that BLM has monitored since 1991.

The Service concludes that data collected by LADWP do not

conclusively demonstrate that Astragalus lentiginosus var. piscinensis

plants located in plots in the grazed areas fared any better or worse

than those in the ungrazed exclosures during the past five years. If

cattle grazing will continue in habitat for A. lentiginosus var.

piscinensis at Fish Slough, the Service recommends increasing the

number of monitoring plots in both grazed and ungrazed areas to help

clarify the relationship between cattle grazing and population dynamics

of A. lentiginosus var. piscinensis. The Service remains concerned

about the effects of cattle grazing on the alkali wetland habitat that

supports A. lentiginosus var. piscinensis, including the potential for

grazing to cause changes in the composition of the plant community or

maintain changes that have already occurred, and the potential for the

creation of cattle trails to alter the topography and change drainage

patterns.

Issue 5: One commenter suggested that listing Astragalus

lentiginosus var. coachellae would be unnecessary if a conservation

plan for that species could be developed, perhaps by incorporating it

into the management of the existing Coachella Valley Preserve.

Service response: The Coachella Valley Preserve System, established

primarily to protect the Coachella Valley fringe-toed lizard (Uma

inornata), contains populations of Astragalus lentiginosus var.

coachellae on three preserve lands in the south and central range of

this taxon. No populations in the northern range of A. lentiginosus

var. coachellae are currently protected. Within the last two years, the

Coachella Valley Association of Governments and the Coachella Valley

Mountains Conservancy have begun a planning process to address

conflicts between conservation needs and economic development within a

4500sq km (1,850 sq mi) area that includes the Coachella Valley and

surrounding region in Riverside County. The expected result of this

process, a Coachella Valley Multispecies Habitat Conservation Plan

(CVMSHCP), will address conservation needs for 12 species that are

listed or proposed for listing, 21 candidate species, and 17 additional

species of concern. Astragalus lentiginosus var. coachellae is to be

addressed in the plan.

The Service recognizes the importance of such a planning process

for the Coachella Valley and is participating through the Scientific

Advisory Committee, as are other agencies responsible for resource

protection in the area. The planning process is in its initial stages,

however, and its funding is not secured, nor is a product yet available

that can be implemented. Thus, development of the CVMSHCP does not

provide current protection for Astragalus lentiginosus var. coachellae

and is not sufficient to preclude the need to list the species at this

time.

Issue 6: One commenter speculated that the proposed rule had been

promulgated to fulfill the requirements of a settlement resulting from

the suit filed against the Service by the California Native Plant

Society (CNPS).

Service Response: The procedures for designating species as

threatened or endangered are outlined in section 4(a)(1) of the Act and

promulgated regulations (50 CFR part 424). As discussed in detail in

the ``Background'' section of this rule, Federal action on several of

these taxa began as early as 1975. The proposed rule did, in fact,

comply with the terms and conditions of the settlement stemming from

the CNPS suit. While the CNPS lawsuit settlement may have accelerated

the rate at which species were proposed for listing, the suit did not

address final determinations, nor did it change the standards by which

species are evaluated for potential listing.

Issue 7: Two commenters expressed concern over potential land use

restrictions where listed species occur. One of these commenters stated

that the listing of these plants ''. . . would result in large acreage

throughout the west being ``locked up'' to preserve these forbs or

weeds.'' The other commenter believed that the Service's true intent is

''. . . full control over land management activities . . .'' on

private, as well as public lands.

Service Response: Listing of plant species under the Act triggers

the protective measures of section 9 of the Act, including prohibiting

the collection, destruction, or damaging of these species on any area

if it is in knowing violation of any State law (see the ``Available

Conservation Measures'' section of this rule for a complete

discussion). In addition, the Act requires that Federal agencies, in

consultation with the Service, insure that activities they authorize,

fund, or carry out are not likely to jeopardize the continued existence

of any listed species, or destroy or adversely modify its critical

habitat, if any is designated. Thus for any activity on private land

requiring Federal action (such as a section 404 permit under the Clean

Water Act (33 U.S.C. 1251-1376)) that may affect listed species, the

Federal action agency is required to enter into the section 7

consultation process with the Service.

These protections afforded to plants listed under the Act do not

``lock up'' private land. Conservation measures and recovery planning

for these species rarely include recommendations for land acquisition

or easements involving private landowners. These efforts would be

undertaken with the cooperation of

[[Page 53604]]

the landowners. In most cases, private landowners are not precluded

from utilizing their land in the manner originally intended.

Issue 8: One commenter questioned whether the listing of these

plants could be justified in light of the numerous species already

listed and the thousands more that are candidates for listing, and

questioned what benefit there would be to mankind in saving these

species. The commenter pointed out that because ``the law of the land

is survival of the fittest,'' certain species were not meant to survive

forever and a niche vacated by one species would be taken over by

another.

Service Response: In enacting the Act in 1973, Congress recognized

that ``various species of fish, wildlife, and plants in the United

States have been rendered extinct as a consequence of economic growth

and development untempered by adequate concern and conservation.'' It

further stated ``these species of fish, wildlife, and plants are of

aesthetic, ecological, educational, historical, recreational, and

scientific value to the Nation and its people.'' Although it is true

that extinction is a natural process, it is human-caused extinction

that the Act is attempting to minimize. A number of studies have

estimated rates of extinction throughout geologic time and, more

recently, since the influence of European man. The studies indicate

that rates of extinction over the past 200 years are unparalleled in

human history, and extinction rates are continuing to increase (Reid

and Miller 1989, Raven 1993). The Service concludes that proceeding

with this listing action is within the intent of the Act.

Issue 9: One commenter stated that the Service must prepare an

Environmental Impact Statement (EIS) and a Takings Implication

Assessment before issuing a final rule.

Service response: For the reasons set out in the National

Environmental Policy Act (NEPA) section of this document, the Service

has determined that the rules issued pursuant to section 4(a) of the

Act do not require the preparation of an EIS. In Pacific Legal

Foundation v. Andrus, 657 F.2d 829 (6th Circuit 1981), and subsequent

cases, the Federal courts have held that an EIS is not required for

listing under the Act. The Sixth Circuit decision noted that preparing

an EIS on listing actions does not further the goals of NEPA or the

Act.

Takings Implications Assessments (TIAs) are prepared pursuant to

the requirements of Executive Order 12630, ``Government Actions and

Interference with Constitutionally Protected Property Rights.'' The

Attorney General has issued guidelines to the Department of the

Interior (Department) regarding TIAs. The Attorney General's guidelines

state that TIAs used to analyze the potential for Fifth Amendment

taking claims are to be prepared after, rather than before, an agency

makes a restricted discretionary decision. In enacting the Act,

Congress required the Department to list a species based solely upon

scientific and commercial data. The Service may not withhold a listing

decision based upon economic concerns. Therefore, any TIA that may be

required for a listing action would be prepared only after the final

determination to list a species has been made.

Summary of Factors Affecting the Species

Section 4 of the Act and regulations (50 CFR part 424) promulgated

to implement the listing provisions of the Act set forth the procedures

for adding species to the Federal lists of endangered and threatened

species. A species may be determined to be an endangered or threatened

species due to one or more of the five factors described in section

4(a)(1). These factors and their application to Astragalus jaegerianus

Munz (Lane Mountain milk-vetch), A. lentiginosus Douglas ex Hook. var.

coachellae Barneby (Coachella Valley milk-vetch), A. lentiginosus

Douglas ex Hook. var. piscinensis Barneby (Fish Slough milk-vetch), A.

magdalenae Greene var. peirsonii (Munz & McBurney in Munz) Barneby

(Peirson's milk-vetch) and A. tricarinatus A. Gray (triple-ribbed milk-

vetch) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment

of Its Habitat or Range.

All five taxa are threatened by loss of habitat due to one or more

of the following factors--mining, urbanization in the form of

commercial and residential development, motorized vehicle recreation

and unauthorized motor vehicle use, pipeline maintenance activities,

and loss of habitat due to modifications of a wetland ecosystem.

Astragalus jaegerianus is threatened by dry wash gold mining at the

Lane Mountain site and potentially by a materials lease mining

operation at one northern site on BLM lands. The majority of Lane

Mountain Mesa, where A. jaegerianus occurs, and all of the adjacent

Coolgardie Mesa, are covered by mining claims (BLM in litt. 1992; T.

Eagen, pers. comm. 1996). Dry wash gold mining operations result in

removal of vegetation as surface soils are mined. Mining that falls

under the definition of ``casual use'' also can destroy the habitat of

A. jaegerianus in the Lane Mountain area. ``Casual use'' mining is

small scale recreational mining that can be carried out by a claim

holder without submission of any plan or notice to BLM. In 1993,

Coolgardie Mesa experienced a sharp increase in recreational gold

mining. Within a few miles of the Lane Mountain population of A.

jaegerianus, the BLM recorded 300 to 400 people mining within a 2.5 sq

km (1 sq mi) area during a single weekend. Joshua trees (Yucca

brevifolia) and other vegetation were uprooted and destroyed in this

process (T. Eagen, pers. comm. 1996). The BLM has since developed

guidelines to limit activities that fall under the definition of

``casual use'' mining. Under the new definition, ``casual use'' mining

is limited to the use of non-mechanized tools and cannot result in the

destruction of perennial vegetation. This still permits the digging of

mining pits and soil surface disturbance that degrade habitat and could

impact A. jaegerianus. Past disturbance has also resulted in an

increase in non-native annual grasses in the area (T. Eagen, pers.

comm. 1996) and this ongoing small scale disturbance provides new

opportunities for further invasions of these highly competitive

species. The sites where A. jaegerianus occurs on BLM land to the

north, while not currently under claim, are available for claim, should

mining interest renew in that area (J. Aardahl, BLM, pers. comm. 1997).

Additional discussion of mining regulations can be found under Factor D

of the ``Summary of Factors Affecting the Species Section'' of this

rule.

To the north, Astragalus jaegerianus is also threatened by

proliferation of OHV trails/tracks and cross country vehicle travel

associated with decorative rock extraction, the potential for other

mining exploration, and general recreation. Although the extraction

activity is by permit through BLM, permit violations, including cross

country vehicle travel and rock extraction outside the bounds of the

permitted area occurred numerous times in 1995-1996, within and

adjacent to A. jaegerianus habitat (T. Eagen, pers. comm. 1996). At

least one of the populations of A. jaegerianus in the north is already

bisected by a road (Bagley, in litt. 1985), and other roads/trails

adjacent to the population are a concern. Recreational vehicle activity

is also causing a proliferation of tracks through potential habitat

just south of

[[Page 53605]]

the northern populations. At the Lane Mountain site, tracks have been

seen near A. jaegerianus habitat. The area is laced with roads, and the

majority of this small population occurs within about 100 m (300 ft) of

a road, with some plants within 5 m (15 ft) of the road (C. Rutherford,

pers. comm. 1996).

Within habitat for Astragalus jaegerianus on DOD lands, military

maneuvers at the NTC at Fort Irwin, or National Guard training in 1992,

may have destroyed plants (Steve Ahmann, NTC, in litt. 1993). Following

this incident and the publication of the proposed rule, the military

constructed a wire fence to restrict vehicle access from 260 ha 650 ac

in 1993, which includes all of the A. jaegerianus plants known on

military lands (S. Ahmann, in litt. 1993). No breaches of the fence

have occurred in the past 2 years, although a military vehicle breached

the fence three years ago (Ahmann, pers. comm. 1996). The military

currently uses these fenced lands only for compass orienteering

exercises. Impacts to this taxon from military training may increase

following the expansion of the NTC at Fort Irwin. Although the size and

location of the expansion has not been decided, it may encompass

several hundred square miles of BLM lands including those which support

A. jaegerianus.

Astragalus lentiginosus var. coachellae (Coachella Valley milk-

vetch) is currently known from fewer than 25 occurrences in the

Coachella Valley. Habitat destruction in the Coachella Valley began

with the introduction of agriculture over a century ago, but

urbanization has accelerated greatly in the past 40 years. In the 20

years from 1970 to 1990, the human population of the Coachella Valley

more than doubled from under 100,000 to over 215,000 people. In the

next 20 years the human population of the Coachella Valley is expected

to again double, reaching a total of almost 500,000 people by the year

2010 (Coachella Valley Association of Governments, in litt. 1997).

Significant dune habitats that once occurred along the southwest edge

of the Coachella Valley, at the base of the Santa Rosa Mountains, now

support cities such as Rancho Mirage and Palm Desert (Barrows 1987).

Increased urbanization of the area has altered available habitat in the

valley both through direct conversion of land and through alterations

in the sand transport system responsible for the creation and

maintenance of the region's sand habitats (Barrows 1987; A. Sanders,

pers. comm. 1996; K. Barrows, in litt. 1996).

The historical loss of populations of Astragalus lentiginosus var.

coachellae is not known. Since 1986, two occurrences and part of a

third, located adjacent to roads on private land in the southern part

of this taxon's range, have been repeatedly graded and curbs have been

laid over portions of what was previously suitable habitat. Although

they have not been resurveyed, these sites are degraded to the extent

that they are unlikely to support viable populations of A. lentiginosus

var. coachellae. A fourth occurrence, in the same region, was found to

support no plants in 1987, although suitable habitat still remained at

the site. By 1996, this site had been converted to a truck stop and

suitable habitat had been eliminated (Barrows 1987; K. Barrows, in

litt. 1996; K. Barrows, pers. comm. 1996).

Urbanization and development, like that occurring in the Coachella

Valley, result in both direct loss of populations and the restriction

of populations to fragments of suitable habitat. As areas are

increasingly developed, these habitat fragments, especially those

adjacent to roads, may be degraded by vehicle use or roadside

maintenance activities and are often subsequently paved over or

landscaped. Secondary impacts to Astragalus lentiginosus var.

coachellae associated with increased urbanization include habitat

damage from OHV use. OHV use has eliminated plants from a portion of

one population in the northern part of the range of this variety where

a commercial OHV rental operation exists. Plants are now found only on

the margins of this site (K. Barrows, pers. comm. 1996).

Astragalus lentiginosus var. piscinensis is currently restricted to

a 10-km (6-mi) stretch of alkaline flats paralleling Fish Slough on

lands owned and managed by the LADWP and BLM. In 1984, BLM established

an ACEC on these lands to protect the federally endangered Owens

pupfish (Cyprinodon radiosus) and the entire wetland ecosystem. This

ACEC encompasses the range of A. lentiginosus var. piscinensis. The

ACEC is jointly managed by BLM, the Service, CDFG, University of

California Natural Reserve System (NRS), and LADWP. Because of the

availability of water and wetland vegetation at Fish Slough, the area

has sustained extensive human-related uses, beginning with cattle

grazing in the 1860s. Additional discussion of cattle impacts can be

found under Factor E of the ``Summary of Factors Affecting the

Species'' section of this rule. Ferren (1991b) summarized impacts to

botanical resources at Fish Slough, noting that those related to the

enhancement of fisheries (construction of ponds, impoundments, roads,

and ditches) have resulted in the greatest losses to this taxon's

specific alkali habitats. Because of the long narrow configuration of

the Slough, bounded by uplands on both sides, this alkali wetland

habitat is limited in extent. In the west-central zone of Fish Slough,

Fish Slough Lake is expanding, perhaps due to natural geologic

subsidence and/or construction of Red Willow Dam, resulting in loss of

suitable habitat for A. lentiginosus var. piscinensis as the soils

become increasingly saturated for greater portions of the year (Ferren

1991c; W. Ferren, in litt. 1992). Other impoundments created in the

past, some for the protection of endangered fish habitat, have

similarly altered the local hydrology (BLM 1984; Ferren 1991; BLM in

litt. 1993).

Astragalus magdalenae var. peirsonii is currently known to be

extant in the United States only within the Algodones Dunes, where it

is threatened by increasing habitat loss from OHV use and associated

recreational development. Approximately 75 percent of the dune system,

supporting 75 to 80 percent of the colonies of A. magdalenae var.

peirsonii, as mapped in 1977, are open to OHV recreation within the

Imperial Sand Dunes Recreation Area (Westec 1977, BLM 1987). Between

1977 and 1985, OHV use in the Imperial Sand Dunes Recreation Area

increased by over 60 percent (BLM 1987). With the rising popularity of

all-terrain vehicles and the expanding human population in southern

California, use is expected to more than double from 1985 to the year

2000 (BLM 1987). The most recent figures available from the BLM show

that in 1996 the number of recorded visits at the recreation area rose

to over 430,000, an increase of 15 percent from 1994 (BLM, in litt.,

1996).

Of the dune-restricted plant taxa, Astragalus magdalenae var.

peirsonii appears to be the most vulnerable to destruction by OHVs. Its

small stature provides little obstacle to riders (Romspert and Burke

1978, ECOS 1990); the brittle nature of its single stem causes plants

to break, rather than bend, when hit by a vehicle (ECOS 1990); and a

lack of lateral roots may reduce its ability to remain anchored and

survive vehicle-induced damage (Romspert and Burke 1978). In addition,

seedling establishment in A. magdalenae var. peirsonii occurs in winter

and spring (Romspert and Burke 1978), which are also the most popular

periods for recreational riding on the dunes. BLM estimates that an

average winter weekend in the year 2000 will draw

[[Page 53606]]

about 7,000 OHV recreationalists to the dunes (BLM 1987).

Although the condition of Astragalus magdalenae var. peirsonii has

not been documented throughout the dune system since 1977, the

condition of its dune habitat has been declining. In 1977, biologists

noted that no seedlings of any of the sensitive plant taxa could be

found in the dune areas receiving high OHV use, although seedlings were

abundant in other regions of the dunes (Westec 1977). In 1990,

biologists monitoring the dunes noted that no seedlings or colonies of

adult plants of A. magdalenae var. peirsonii could be found in these

high use areas (ECOS 1990). The 1990 study compared colonies of A.

magdalenae var. peirsonii located in areas closed to OHVs to those in

areas receiving moderate OHV use. Biologists found that plants in

moderate use areas had poorer health and lower reproductive success

than those in areas closed to OHVs. In one comparison, 40 percent of

the sampled individuals located in the closed area reproduced, while no

individuals located in the area open to OHVs reproduced (ECOS 1990). As

OHV use of the dunes increases, the amount of dune habitat experiencing

``moderate'' impacts will continue to expand. These results suggest

that OHV use has a detrimental effect on populations beyond that due to

the direct crushing of individuals. Factors such as sand compaction,

disruption of hydrologic factors, or changes in community composition

may also be responsible for the decline of A. magdalenae var. peirsonii

in areas used by OHVs (ECOS 1990).

While loss of colonies and declines in reproductive success and

health of Astragalus magdalenae var. peirsonii have been documented in

areas receiving high and moderate levels of OHV use, a 20,000-ha

(50,000-ac) central section of the dunes has been designated ``limited

use'' under the California Desert Conservation Area Plan (BLM 1980).

According to this plan, the ``limited use'' designation is designed to

protect sensitive resource values, while allowing multiple use.

However, Astragalus magdalenae var. peirsonii colonies in these areas

may decline if present trends continue. Because the area is on a dune

system, the ``limited use'' designation prohibits the construction of

roads or campgrounds within its boundaries, but does not include any

restriction on OHV use of the area. In 1988, BLM constructed a

campground at the south end of Gecko Road, just 3/4 mile north of the

boundary of the ``limited use'' zone and adjacent to the highest

concentration of colonies of A. magdalenae var. peirsonii in the dune

system. This region of dunes was also a Wilderness Study Area (WSA) in

the 1970s and 1980s. When the BLM recommended against designating this

WSA as wilderness in 1989, it cited four reasons for its

recommendations--(1)``* * * the long tradition of motor vehicle use;''

(2) ``* * * the projected continued demand for OHV use;'' (3) ``* * *

the WSA's potential for energy and mineral development;'' and (4) ``* *

* the similarity of the area to a nearby WSA recommended for

wilderness.'' (BLM 1989). While OHV use is expected to increase

throughout the recreation area, OHV use in the former southern WSA is

expected to increase faster than the overall rate, tripling from 1985

to the year 2000 (BLM 1987). In addition, these projections from BLM's

1987 Recreation Area Management Plan did not consider the increase in

dispersed camping that is occurring along the railroad tracks and canal

road that bound the central dunes on their east and west side (A.

Schoeck, BLM, pers. comm. 1997). Camping in these areas facilitates

quick, easy access to the central ``limited use'' dunes for OHV use (D.

Steeck and T. Thomas, Service, pers. obs. 1997). Construction of a

bridge over the All American Canal in the southern portion of the

Algodones Dunes, planned for 1997 but as yet not constructed, will also

increase ease of access to the central dunes, and may thereby encourage

additional OHV use (Service, in litt. 1996). The Service concludes that

the trend for habitat conditions of A. magdalenae var. peirsonii in the

central, limited use, zone of the dunes is one of continuing decline.

Astragalus tricarinatus is known to be extant only in Big Morongo

Canyon. This canyon bottom has been disturbed by pipeline maintenance

activities several times in the last decade and these activities are

likely to continue. One occurrence of fewer than 10 A. tricarinatus

plants at the north end of the canyon was graded during maintenance of

a gas pipeline access road in 1985 and has not been seen since, despite

searches (Barrows 1987b; C. Jacobsen, in litt. 1993; Mathews 1994). In

1995, the Four Corner's Pipeline Company excavated and realigned three

segments of a crude oil pipeline that extended through habitat for A.

tricarinatus in Big Morongo Canyon and had been exposed by streambed

scouring (Service 1994). One section of the realignment extended

through a site that had supported 20 A. tricarinatus plants in 1992.

Plants present at the time of construction were shielded from the

construction zone by protective fencing, and the topsoil scraped from

the site was stockpiled and later replaced (Service 1994; Ted Rado,

consultant, pers. comm. 1996). However, the project, originally

scheduled for October 1994, was not carried out until April 1995, the

period when plants are flowering but before fruits have matured. Any

damage to plants during this period would have resulted in diminished

seed production by the population that year. Astragalus tricarinatus

population sizes fluctuate widely from year to year and may depend on

the persistence of a soil seedbank during years when weather

limitations are unfavorable for growth or reproduction. Due to poor

growing conditions for this taxon throughout the Canyon in 1996, the

effect of this pipeline realignment on A. tricarinatus in Big Morongo

Canyon has not yet been determined (R. Kobaly, BLM, pers. comm. 1996).

Astragalus tricarinatus is threatened by maintenance activities for

the crude oil pipeline which runs through its habitat at Big Morongo

Canyon and by vehicle use in the canyons. Its limited number of

individuals make it especially vulnerable to unanticipated events, such

as pipeline leaks, breaks, or emergency repairs.

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

Overutilization has not been documented for the five taxa discussed

in this final rule. However, rare taxa have, at times, become

vulnerable to collecting by curiosity seekers as a result of increased

publicity following publication of a listing proposal. The extremely

limited number of Astragalus jaegerianus and A. tricarinatus make them

vulnerable to scientific collectors. The potential for collection of

these plants upon publication of this final rule may increase.

C. Disease or Predation

Disease is not known to be a factor for any of the taxa. Evidence

exists that native herbivores may exert a substantial effect on

reproduction of individual plants of Astragalus lentiginosus var.

piscinensis. It is unclear whether gradual increases in soil saturation

are reducing plant vigor in the central zone of Fish Slough, making

them more vulnerable to attack by native herbivores. Whatever the

causes, infestations of vegetative parts and root systems by phloem-

sucking insects and red ants, respectively, and high rabbit herbivory

have all been reported for individuals of A.

[[Page 53607]]

lentiginosus var. piscinensis in the central zone of Fish Slough (Mazer

and Travers 1992; BLM, in litt. 1993; LADWP, in litt. 1996). Ferren

(1991a) observed rabbit feces adjacent to individuals of A.

lentiginosus var. piscinensis that had been virtually stripped of

leaves, flowers, and seeds. Mazer and Travers (1992) found that plants

in the central western zone of Fish Slough suffered high herbivory

levels when compared to plants in the north section of the Slough. By

August, sampled plants in the central zone of the Slough had 80 percent

of their branches grazed by rabbits or rodents, while in the north zone

of the Slough fewer than 20 percent of branches of sampled plants had

been grazed. It is unknown whether the reduced reproduction of A.

lentiginosus var. piscinensis caused by native herbivores results in

lowered recruitment, or whether native herbivores may be responsible

for the low recruitment seen in certain areas by preferentially feeding

on seedlings. In addition to herbivory by rodents and rabbits, in 1996,

plants of A. lentiginosus var. piscinensis appeared to have been killed

by red ants, probably through damage to the root system (LADWP in litt.

1996).

D. The Inadequacy of Existing Regulatory Mechanisms

Existing regulatory mechanisms that may provide some protection for

these taxa include--(1) the California Endangered Species Act (CESA),

(2) the California Environmental Quality Act (CEQA), (3) the Federal

Endangered Species Act, in those cases where these taxa occur in

habitat occupied by other listed species, (4) the Clean Water Act, (5)

the Federal Land Policy and Management Act, and (6) regional planning

efforts.

Pursuant to the Native Plant Protection Act (chapter 10 section

1900 et seq. of the California Fish and Game Code) and CESA (chapter

1.5 section 2050 et seq. of the Fish and Game Code), the California

Fish and Game Commission listed Astragalus magdalenae var. peirsonii as

endangered in 1979. California Senate Bill 879, passed in 1997 and

effective January 1, 1998, requires individuals to obtain a section

2081(b) permit from CDFG to take a listed species incidental to

otherwise lawful activities, and requires that all impacts be fully

mitigated and all measures be capable of successful implementation.

Astragalus magdalenae var. peirsonii is currently known only from

public lands under BLM management, however, and these CESA provisions

do not apply to Federal agencies. In an attempt to address management

of the Algodones Dune system on an ecosystem basis for the conservation

of its wildlife and botanical resources, the BLM and CDFG developed a

habitat management plan (HMP) for the Algodones Dunes in 1987. The plan

included a monitoring program to track the effects of the 1988

construction of Roadrunner campground and the subsequent increase in

OHV use on the wildlife and vegetation in the central dunes. In the

HMP, the BLM also agreed to establish monitoring transects for

sensitive plants, including A. magdalenae var. peirsonii, in all land

use classes and monitor them every other year until trends were

established. Little of the monitoring specific to sensitive plant

species has been carried out (N. Nicolai, BLM, pers. comm. 1996, J.

Dice, CDFG, pers. comm. 1997). At the Service's request for

distribution and abundance data, the BLM provided only sensitive plant

monitoring data from 1990, and the baseline studies conducted in 1977

and 1978.

In Mexico, the Gran Desierto, where Astragalus magdalenae var.

peirsonii occurs, was designated a UNESCO Biosphere Reserve in 1993.

Although this designation recognizes the unique resource values of the

area, actual enforcement of conservation laws will be dictated by the

availability of the limited resources of the Mexican government. The

status of A. magdalenae var. peirsonii in Mexico is not well

documented.

CEQA requires a full disclosure of potential environmental impacts

of proposed projects. The public agency with primary authority or

jurisdiction over the project is designated as the lead agency and is

responsible for conducting a review of the project and consulting with

other agencies concerned with the resources affected by the project.

Section 15065 of the CEQA Guidelines requires a finding of significance

if a project has the potential to ``reduce the number or restrict the

range of a rare or endangered plant or animal.'' If significant effects

are identified, the lead agency has the option to require mitigation

for effects through changes in the project or to decide that overriding

considerations make mitigation infeasible. In the latter case, projects

may be approved that cause significant environmental damage, such as

destruction of endangered species and their habitats. Protection of

species through CEQA is, therefore, dependent upon the discretion of

the lead agency.

Of the taxa included in this proposed rule, only Astragalus

lentiginosus var. coachellae occurs on private lands that are subject

to CEQA. Protection of A. lentiginosus var. coachellae has not been

adequately considered in the CEQA process. For instance, projects are

sometimes approved when biological surveys have not been conducted at

the appropriate time of year to locate this taxon (K Barrows, pers.

comm. 1997). The biology of the taxon may also result in it being

missed or the extent of its distribution severely underestimated if

surveys are carried out in years of low rainfall, or other times when

plants may occur at very low densities. In addition, development of

lands in the Coachella Valley may have an indirect effect on A.

lentiginosus var. coachellae by blocking transport of sands throughout

the Valley. These indirect, cumulative effects could result in large-

scale changes to the sand habitats of the Coachella Valley, but are not

often addressed on an individual project basis.

The taxa in this rule may already receive some habitat protection

from the Act where their ranges overlap those of species already listed

under the Act. The range of Astragalus lentiginosus var. coachellae

overlaps with that of the Coachella Valley fringe-toed lizard. The

three preserves set aside for the lizard support populations of A.

lentiginosus var. coachellae, but this represents only 20 to 25 percent

of the occurrences of this taxon. Over 75 percent of the occurrences of

this plant are located on unprotected sites on private or tribal lands.

The range of Astragalus jaegerianus overlaps with that of the

desert tortoise (Gopherus agassizii) on some portions of DOD lands at

Fort Irwin and on some BLM lands. However, the distribution of A.

jaegerianus is very localized and areas too small or fragmented to

support viable tortoise populations could support significant numbers

of the plant. Overlapping range with the tortoise does not provide

adequate protection for A. jaegerianus. Astragalus magdalenae var.

peirsonii and A. tricarinatus do not co-occur with any taxa already

listed under the Act.

Astragalus lentiginosus var. piscinensis occurs within the Fish

Slough ecosystem, a wetland supporting the Owens pupfish (Cyprinodon

radiosus), a federally listed endangered species. The listing of the

Owen's pupfish under the Act has provided additional recognition of the

need to protect the Fish Slough ecosystem, and in that way has

indirectly benefitted A. lentiginosus var. piscinensis. Conversely,

impoundments and other manipulations of the spring system of the

slough, created in part to provide habitat for the pupfish, have

resulted in

[[Page 53608]]

the loss of alkali meadow habitat of A. lentiginosus var. piscinensis.

Management emphasis on only one species or group of related species

(e.g. endangered fishes) will not provide adequate protection to all

sensitive species in the wetland system and, as in this case, may be

detrimental to the survival or recovery of co-occurring species. The

occurrence of federally listed fish species in Fish Slough does not

provide adequate protection for A. lentiginosus var. piscinensis in its

adjacent wetland habitat.

Under section 404 of the Clean Water Act, the U.S. Army Corps of

Engineers (Corps) regulates the discharge of fill into waters of the

United States, including navigable waters, wetlands, and other waters

(33 CFR parts 320-330). The Clean Water Act requires project proponents

to obtain a permit from the Corps prior to undertaking many activities

(e.g., grading, discharge of soil or other fill material, etc.) that

would result in the filling of wetlands subject to the Corps'

jurisdiction. The habitat of Astragalus lentiginosus var. piscinensis

is seasonally moist alkaline flats adjacent to Fish Slough and is a

jurisdictional wetland under the purview of section 404. Some

protection from wetland fill activity, such as the construction of new

dams, may be afforded by the regulatory process. However, unless a

population of A. lentiginosus var. piscinensis were directly within the

footprint of the fill area, impacts of the project on the species,

e.g., changes in hydrology, may not be considered. Fluctuating water

levels behind the dams at Fish Slough are not subject to regulation

under section 404, but can result in undesirable changes in the

hydrologic characteristics of the habitat of A. lentiginosus var.

piscinensis, a primary threat to the species. Protections afforded to

wetland areas under section 404 of the Clean Water Act are not

sufficient to preclude listing the species.

Currently, the majority of Astragalus jaegerianus sites are either

covered by mining claims, or are available for claims for mineral

extraction. The BLM has only limited authority under the Federal Land

Policy and Management Act (FLPMA) to control surface mining once claims

are made. The policy of FLPMA, as expressed by regulation, grants

individuals a statutory right to mine certain Federal lands (43 CFR

3809.0-6). Although mining projects are required to submit a Plan of

Operations (for projects over 2 ha (5 ac) in size) or a Notice of

Operations (for projects under 2 ha (5 ac), including exploratory

mining), the BLM has only 15 days in which to respond. Since the

notices may be submitted at times when the plants are not present

above-ground, BLM must frequently base its response on existing

knowledge of where plants are located, or were located in the past,

rather than on field surveys to determine if a site supports this

species. The options that are available to the Service and the BLM in

response to a project are limited, unless an action may jeopardize the

continued existence of the listed species pursuant to section 7 of the

Act. Astragalus jaegerianus currently receives minimal regulatory

protection in areas where mining activity is occurring.

Astragalus jaegerianus is included within the planning area of the

West Mojave Coordinated Management Plan, a multi-agency effort to

coordinate resource information and provide general resource management

direction in the west Mojave Desert. Unresolved issues stalled the

planning team's progress in 1996. The planning effort has since been

reinitiated, with a modified objective and fewer species to be

addressed. Although A. jaegerianus is one of the included taxa, the

planning process is not yet at a stage that will provide it protection.

Astragalus lentiginosus var. piscinensis occurs within Zone 1 of an

ACEC on public lands managed by the BLM, and on lands owned by the

LADWP. A joint management committee composed of representatives of the

LADWP, BLM, the Service, CDFG, and the University of California Natural

Reserve System provide guidance on management issues. Although the

management committee is making progress in addressing the needs of the

sensitive plants and animals in the Fish Slough ecosystem, the changes

in slough hydrology resulting from existing dams and, potentially, from

natural causes (Ferren 1991c), are complex and will not be easily

resolved. The Service concludes that the existence of the Fish Slough

ACEC and management committee do not preclude the need to list A.

lentiginosus var. piscinensis at this time.

Astragalus lentiginosus var. coachellae occurs within the bounds of

the Coachella Valley Multispecies Habitat Conservation Planning

(CVMSHCP) area. This planning process is being coordinated by the

Coachella Valley Association of Governments and the Coachella Valley

Mountains Conservancy to address a 4500 sq km (1,850 sq mi) area that

includes the Coachella Valley and surrounding region in Riverside

County. The plan is expected to address conservation needs for 12

species that are listed or proposed for listing as endangered or

threatened species, 21 candidate species, and 17 additional species of

concern to the Service. However, the planning process is in its initial

stages and its funding is not secured, nor is a product yet available

that can be implemented. Thus, the inclusion of A. lentiginosus var.

coachellae in the CVMSHCP planning process is not sufficient to

preclude the need to list the species at this time.

E. Other Natural or Human-caused Factors Affecting Their Continued

Existence

A potential threat to Astragalus jaegerianus is habitat destruction

from emergency fire suppression activities in response to wildfires

occurring at Lane Mountain Mesa. An increase in fire frequency has been

documented for the nearby Superior Dry Lake area (T. Eagen, pers. comm.

1997) and the Lane Mountain Mesa area is experiencing similar increases

in human activity (the ignition source) and nonnative annual plant

species (the significant fuel source) (T. Eagen, pers. comm. 1996).

Although the population of A. jaegerianus has not been burned recently,

the existence of fewer than 30 plants at this site make it extremely

vulnerable to emergency fire suppression activities or similar

unplanned events.

Lack of recruitment is a potential threat to Astragalus

lentiginosus var. piscinensis. BLM has been monitoring this taxon in

the central-eastern zone of Fish Slough since 1992 and has observed no

recruitment in the area during that time (BLM, in litt. 1993, 1996;

Anne Halford, BLM, pers. comm. 1996). Two potential explanations for

this are high rabbit/rodent herbivory of seedlings and changes in soil

hydrology or chemistry that make the area less hospitable for

seedlings. Alterations in the extent and timing of soil saturation have

occurred in several areas of the slough due to past hydrologic

modifications, most recently for the enhancement of endangered fish

habitat.

Astragalus lentiginosus var. piscinensis is subject to grazing from

livestock. The Fish Slough area was first grazed by cattle in the

1860s, and grazing currently occurs on all LADWP lands that support A.

lentiginosus var. piscinensis except for those within the northern 32-

ha 80-ac exclosure (P. Hubbard, pers. comm. 1996). Data on plant

numbers, collected from plots in grazed and ungrazed areas of Fish

Slough from 1991 to 1996, suggest that some recruitment of new

individuals into the population is occurring in both the grazed and

ungrazed sample areas. The sampled plots are few (three grazed

[[Page 53609]]

plots and two ungrazed plots) and numbers of plants within the plots

fluctuated substantially over the sampling period without clear

increasing or declining trends.

Grazing by livestock alters the composition of the plant community

over time by reducing or eliminating those species that cannot tolerate

trampling and by enabling those that can to increase in abundance.

Other taxa that were not previously part of the native plant community

may be introduced and flourish under the disturbance caused by grazing

and may reduce or eliminate native taxa through competition for

resources. The Service considers cattle grazing a potential threat

until more conclusive evidence is available. Additional discussion of

cattle grazing can be found in this document in the Service's

``Response to Comments'' section of this final rule (see Issue 4).

Astragalus tricarinatus is vulnerable to crushing by motorized

vehicles in Big Morongo Wash. Although access to the bottom of the

canyon is gated, botanists conducting surveys for A. tricarinatus in

1994 noted motor vehicle tracks within several feet of the plants.

While some of the vehicle activity may have been associated with

pipeline maintenance, other vehicle use may have been recreational

(Mathews 1994). Due to the limited number of individuals (less than 100

known plants), A. tricarinatus remains extremely vulnerable to loss of

plants due to OHVs, maintenance operations, and unforseen events

relating to the pipeline (e.g., pipeline breaks or leaks) that could

cause local population extirpation and potentially lead to extinction

of the species.

The Service has carefully assessed the best scientific and

commercial information available regarding the past, present, and

future threats faced by these taxa in determining to make this rule

final. Based on new information that has come to light since these taxa

were proposed and based on reevaluation of existing data, the Service's

preferred action is to list Astragalus jaegerianus, A. tricarinatus,

and A. lentiginosus var. coachellae as endangered, and A. lentiginosus

var. piscinensis and A. magdalenae var. peirsonii as threatened. The

three endangered taxa face the following threats--habitat alteration

and destruction resulting from construction, urban development, mining,

pipeline maintenance, and OHV activity; and the inadequacy of existing

regulatory mechanisms. The low numbers and small population sizes of A.

jaegerianus and A. tricarinatus make them particularly vulnerable to

extinction from random natural events (e.g., flooding that could wash

substantial amounts of the seedbank into unsuitable habitat) or

unforeseen events (e.g., wildfire suppression activities, pipeline

breaks, leaks, or repairs). Because these three taxa are in danger of

extinction throughout all or a significant portion of their ranges,

they meet the definition of endangered under the Act.

Both Astragalus magdalenae var. peirsonii and A. lentiginosus var.

piscinensis were originally proposed for endangered status. Since the

proposed rule was published, the northern portion of Algodones Dunes

habitat that supports A. magdalenae var. peirsonii was formally

designated as wilderness in 1994 under the California Desert Protection

Act. This wilderness is permanently closed to motorized-vehicle use.

Since publication of the proposed rule, the Service has also become

aware of collections of A. magdalenae var. peirsonii from the Gran

Desierto in Sonora, Mexico. The specimens from Sonora were all

collected from the southern Gran Desierto over a 15-year period

(Richard Felger, Drylands Institute, pers. comm. 1996; J. Rebman, San

Diego Museum of Natural History, pers. comm. 1996; Alan Romspert,

California Desert Studies Center, pers. comm. 1996; Gary D. Wallace,

Service, pers. comm. 1996). While this taxon remains vulnerable to the

OHV use occurring over most of its dune habitat, the Service believes

that the dispersed nature of its colonies and the wilderness

designation reduce the potential for immediate extinction. Therefore, a

designation of threatened is appropriate for this taxon. Astragalus

lentiginosus var. piscinensis is threatened by hydrologic modification

of its wetland ecosystem, and reduced recruitment that may be due to

past alteration of habitat or rabbit/rodent herbivory. A significant

portion of the northern population is protected by an exclosure,

reducing the threat from grazing. In addition, the lands on which it

occurs receive specific management consideration due to its inclusion

in an ACEC. The Service determines that, while this taxon may not be in

immediate danger of extinction, it is likely to become endangered in

the foreseeable future throughout all or a significant portion of its

range, thus a threatened designation is appropriate. Critical habitat

is not being designated for these five taxa for reasons discussed in

the following section.

Critical Habitat

Critical habitat is defined in section 3 of the Act as: (i) The

specific areas within the geographical area occupied by a species, at

the time it is listed in accordance with the Act, on which are found

those physical or biological features (I) essential to the conservation

of the species and (II) that may require special management

considerations or protection; and (ii) specific areas outside the

geographical area occupied by a species at the time it is listed, upon

a determination that such areas are essential for the conservation of

the species. ``Conservation'' means the use of all methods and

procedures needed to bring the species to the point at which listing

under the Act is no longer necessary.

Section 4(a)(3) of the Act, as amended, and implementing

regulations (50 CFR 424.12) require that, to the maximum extent prudent

and determinable, the Secretary designate critical habitat at the time

the species are determined to be endangered or threatened. Service

regulations (50 CFR 424.12(a)(1)) state that designation of critical

habitat is not prudent when one or both of the following situations

exist--(1) the species is threatened by taking or other human activity,

and identification of critical habitat can be expected to increase the

degree of such threat to the species, or (2) such designation of

critical habitat would not be beneficial to the species.

Section 7(a)(2) of the Act requires Federal agencies to consult

with the Service to ensure that any action authorized, funded, or

carried out by such agency, does not jeopardize the continued existence

of a federally listed species or destroy or adversely modify designated

critical habitat. The requirement that Federal agencies must not

destroy or adversely modify critical habitat in any action authorized,

funded or carried out by such agency (agency action) is in addition to

the section 7 prohibition against jeopardizing the continued existence

of a listed species; and it is the only mandatory legal consequence of

a critical habitat designation. The Service's implementing regulations

(50 CFR part 402) define ``jeopardize the continuing existence of'' and

``destruction or adverse modification of'' in very similar terms. To

jeopardize the continuing existence of a species means to engage in an

action ``that reasonably would be expected to reduce appreciably the

likelihood of both the survival and recovery of a listed species.''

Destruction or adverse modification of habitat means an ``alteration

that appreciably diminishes the value of critical habitat for both the

survival and recovery of a listed species in the wild by reducing the

reproduction, numbers, or distribution of that species.''

[[Page 53610]]

Common to both definitions is an appreciable detrimental effect to both

the survival and recovery of a listed species. An action that

appreciably diminishes habitat for recovery and survival may also

jeopardize the continued existence of the species by reducing

reproduction, numbers, or distribution because negative impacts to such

habitat may reduce population numbers, decrease reproductive success,

or alter species distribution through habitat fragmentation.

For a listed plant species, an analysis to determine jeopardy under

section 7(a)(2) would consider loss of the species associated with

habitat impacts. Such an analysis would closely parallel an analysis of

habitat impacts conducted to determine adverse modification of critical

habitat. As a result, an action that results in adverse modification

also would almost certainly jeopardize the continued existence of the

species concerned. Listing these species will ensure that section 7

consultation occurs and potential impacts to the species and their

habitat are considered for any Federal action that may affect these

species. In many cases, listing also ensures that Federal agencies

consult with the Service even when Federal actions may affect

unoccupied suitable habitat where such habitat is essential to the

survival and recovery of the species. This is especially important for

plant species where consideration must be given to the seed bank

component of the species, which are not necessarily visible in the

habitat throughout the year. A significant portion of their vegetative

structure may not be in evidence during cursory surveys; occupancy of

suitable habitat can only be reliably determined during the growing

season. In practice, the Service usually consults with Federal agencies

proposing projects in areas where the species was known to recently

occur or to harbor known seed banks.

Specific areas outside the geographical area occupied by a species

are included in the Act's definition of ``critical habitat.'' Critical

habitat can be designated for suitable, but unoccupied, habitat of

listed species. However, the Act indicates that critical habitat

``shall not include the entire geographical area which can be occupied

by the threatened or endangered species'' except when determined by the

Secretary. In the case of the species addressed in this final rule, the

Service does not know specifically why some areas that seem suitable

are unoccupied. Designating all potentially suitable areas could,

therefore, encompass ``the entire geographical area'' which can be

occupied by the species. Furthermore, the Service has not yet made a

determination as to how much habitat is required for recovery.

Designating all or a portion of unoccupied habitat under these

circumstances seems inappropriate and contrary to Congressional intent.

The Service believes the issue of conserving and managing potentially

suitable unoccupied habitat is best addressed during the recovery

planning process as biologists learn more about these species and are

able to work directly with affected landowners on how to best manage

these habitats.

Apart from section 7, the Act provides no additional protection to

lands designated as critical habitat. Designating critical habitat does

not create a management plan for the areas where the species occurs;

does not establish numerical population goals or prescribe specific

management actions (inside or outside of critical habitat); and does

not have a direct effect on areas not designated as critical habitat.

Critical habitat would provide no benefit to the species addressed

in this rule on non-Federal lands (i.e., private, State, County or City

lands) beyond that provided by listing. Critical habitat provides

protection on non-Federal lands only if there is Federal involvement (a

Federal nexus) through authorization or funding of, or participation in

a project or activity on non-Federal lands. In other words, designation

of critical habitat on non-Federal lands does not compel or require the

private or other non-Federal landowner to undertake active management

for the species or to modify any activities in the absence of a Federal

nexus. Possible Federal agency involvement or funding that could

involve the species addressed in the rule on non-Federal lands include

the BLM, DOD, and the Corps. Federal involvement, if it does occur,

will be addressed regardless of whether critical habitat is designated

because interagency coordination requirements such as the Fish and

Wildlife Coordination Act (FWCA) and section 7 of the Act are already

in place. When these plant species are listed, activities occurring on

all lands subject to Federal jurisdiction that may adversely affect

these species would prompt the requirement for consultation under

section 7(a)(2) of the Act, regardless of whether critical habitat has

been designated.

While a designation of critical habitat on private lands would only

affect actions where a Federal nexus is present and would not confer

any additional benefit beyond that already provided by section 7

consultation because virtually any action that would result in an

adverse modification determination would also likely jeopardize the

species, a designation of critical habitat on private lands could

result in a detriment to the species. This is because the limited

effect of a critical habitat designation on private lands is often

misunderstood by private landowners whose property boundaries could be

included within a general description of critical habitat for a

specific species. Landowners may mistakenly believe that critical

habitat designation will be an obstacle to development and impose

restrictions on their use of their property. In some cases, members of

the public may believe critical habitat designation to be an attempt on

the part of the government to confiscate their private property.

Unfortunately, inaccurate and misleading statements reported through

widely popular medium available worldwide, are the types of

misinformation can and have led private landowners to believe that

critical habitat designations prohibit them from making use of their

private land when, in fact, they face potential constraints only if

they need a Federal permit or receive Federal funding to conduct

specific activities on their lands. These types of misunderstandings,

and the fear and mistrust they create among potentially affected

landowners, make it very difficult for the Service to cultivate

meaningful working relationships with such landowners and to encourage

voluntary participation in species conservation and recovery

activities. Without the participation of landowners in the recovery

process, the Service will find it very difficult to recover species

that occur on non-Federal lands.

A designation of critical habitat on private lands could actually

encourage habitat destruction by private landowners to rid themselves

of the perceived endangered species problem. Listed plants have limited

protection under the Act, particularly on private lands. Section

9(a)(2) of the Act, implemented by regulations at 50 CFR section 17.61

(endangered plants) and 50 CFR 17.71 (threatened plants) prohibits--(1)

removal and reduction of listed plant species to possession from areas

under Federal jurisdiction, or their malicious damage or destruction on

areas under Federal jurisdiction; or (2) removal, cutting, digging up,

or damaging or destroying any such species in knowing violation of any

State law or regulation including state criminal trespass laws.

Generally, on private lands, collection of, or

[[Page 53611]]

vandalism to, listed plants must occur in violation of State law to be

a violation of section 9. The Service is not aware of any state law in

California that generally regulates or prohibits the destruction or

removal of federally listed plants on private lands. Vandalism is a

potential threat to the five taxa listed in this rule. In the general

area where the plants addressed in this rule are found, a development

and construction company was documented to have deliberately bulldozed

known federally listed plant locations at a work site. (T. Thomas,

Service). The designation of critical habitat requires the publication

of precise habitat descriptions and mapped locations of the species in

the Federal Register, increasing the likelihood of collection and

vandalism, including potential search and removal activities at

specific sites.

The Service acknowledges that in some situations critical habitat

designation may provide some value to the species by notifying the

public about areas important for species' conservation and calling

attention to those areas in special need of protection. However, when

this limited benefit is weighed against the potential threat of

collection and vandalism associated with the designation of critical

habitat, the Service concludes that the possible detriment to the

species from a critical habitat designation outweighs the possible

conservation benefit of such designation and that such designation is

therefore not prudent. The information and notification process can

more effectively be accomplished by working directly with landowners

and communities during the recovery planning process and by the section

7 consultation and coordination process when a Federal nexus exists.

The use of these existing processes will provide the same level of

conservation benefit to the species that the designation of critical

habitat would, but without the confusion and misunderstandings

associated with critical habitat designation.

For similar reasons, the Service also concludes that there would be

no additional benefits to the species covered in this rule beyond the

benefits conferred by listing from a designation of critical habitat on

Federal lands. In the case of each of these plant species, the existing

occurrences of the species are known by the BLM and DOD; and any action

that would result in adverse modification of critical habitat would

almost certainly result in likely jeopardy to the species, so that a

designation of critical habitat on Federal lands would not confer any

additional benefit on the species. On the other hand a designation of

critical habitat could increase the threats to these species from

vandalism and collection similar to the threats identified in response

to listing a species (Oberbauer 1992, Beauchamp in litt. 1997). Simply

listing a species can precipitate commercial or scientific interest,

both legal and illegal, which can threaten the species through

unauthorized and uncontrolled collection for both commercial and

scientific purposes. The listing of species as endangered or threatened

publicizes a species' rarity and may make the species more susceptible

to collection by researchers or curiosity seekers (Mariah Steenson

pers. comm. 1997, M.Bosch, U.S. Forest Service in litt. 1997). For

example, the Service has documented an incident where, following the

publication of critical habitat designation in the Federal Register,

unidentified persons visited a Forest Service wilderness area where

listed plants were located and asked directions to the location of the

plants in question. Several plants were later found to be missing from

the Service study plots (Nora Murdock, Service, pers. comm. 1998).

Because public lands such as BLM lands are open for public use,

this threat exists whenever maps of listed plant locations are made

known to the public, as required for critical habitat designation.

Critical habitat designation also makes plant species more vulnerable

to vandals who would destroy occurrences of plants and other protected

species in order to avoid perceived or potential land management

conflicts. The potential threat of vandalism and collection would

likely be exacerbated by publication of descriptions and maps of

critical habitat in the Federal Register. The Service concludes that

the absence of any additional conservation benefit from a designation

of critical habitat for the plant species covered by the rule known to

occur on Federal lands, and the likely detriment from such designation

resulting from increased threats of collection and vandalism renders a

designation of critical habitat for the plants not prudent.

The Service has weighed the lack of overall benefits of critical

habitat designation beyond that provided by listing species as

threatened or endangered along with the benefits of public notification

against the detrimental effects of the negative public response and

misunderstanding of what critical habitat designation means and the

increased threats of illegal collection and vandalism, and has

concluded that critical habitat designation is not prudent for

Astragalus jaegerianus, A. lentiginosus var. coachellae, A.

lentiginosus var. piscinensis, A. magdalenae var. peirsonii, and A.

tricarinatus. More specific details why designation of critical habitat

is not prudent for each of these species is addressed in the following

discussion.

Astragalus jaegerianus

Astragalus jaegerianus occurs on lands managed by the BLM and the

DOD. Because so few plants are known to occur, it is likely that any

activity that would be considered an adverse modification of critical

habitat would also likely jeopardize the continued existence of the

species; thus, a critical habitat designation would provide no

advantage or additional conservation benefit in this instance. However,

A. jaegerianus occurs in desert shrublands that appear no different

from surrounding, unoccupied habitat. There is no easily observable

difference in dominant vegetation type, landform, soil, or hydrologic

characteristics, to distinguish occupied habitat of A. jaegerianus from

surrounding unoccupied or unsuitable habitat. For this reason, the

designation of critical habitat could potentially benefit this species

by formally delineating for the Federal agencies those areas occupied

by the species or that the Service deems critical to its survival and

recovery, thus ensuring that consultation will take place when a

federally authorized activity (such as military maneuvers or mining)

occurs in critical habitat. While this small benefit may exist, it is

offset by the potential negative effects of designating critical

habitat. Known populations of A. jaegerianus total only a few hundred

plants. A critical habitat map that delineated occupied habitat areas

would increase the potential for overcollecting by amateur and

unethical professional botanists, especially since one of the

populations is easily accessible from a road. Increases in collection

of rare plant species following publications discussing the species'

rarity have been documented (Gary Wallace, Service, pers. comm. 1997;

Nora Murdock, Service, pers. comm. 1998). The threat of vandalism on

Federal lands exists for this species.

The Service finds that critical habitat designation would provide

little conservation benefit over that provided by listing where this

species occurs. Federal agencies where the species occurs on their

lands are aware of its presence and status. Critical habitat

designation on these lands would not necessarily change the way those

lands are managed or require that specific management actions take

place. All

[[Page 53612]]

activities that may affect the species on these Federal lands would be

subject to section 7 consultation. The Service believes that the

conservation of this species on Federal lands can best be addressed by

working directly with the agencies during the recovery planning process

and the interagency coordination and consultation processes of section

7 for those activities with Federal agency involvement. In conclusion,

the Service has weighed the general lack of benefit beyond that

provided by listing as endangered against the detrimental effects of

the increased threat of vandalism and the potential for

misunderstandings by the public about the effects of critical habitat

designation on Federal lands, and concludes that critical habitat is

not prudent for Astragalus jaegerianus.

Astragalus lentiginosus var. coachellae

Astragalus lentiginosus var. coachellae is currently known from

fewer than 25 occurrences in the Coachella Valley. About 75 to 80

percent of the known occurrences of Astragalus lentiginosus var.

coachellae are located on private lands. The primary threat to A.

lentiginosus var. coachellae is habitat destruction due to the

extensive urban development occurring in the Coachella Valley.

Urbanization destroys populations by direct conversion of the land on

which they occur and by altering or reducing the source and transport

of blow sands that maintain the sand habitats of the Coachella Valley.

As discussed above, widespread misunderstanding exists in the public

sector about the regulatory effect of a designation of critical

habitat. On these lands, a designation of critical habitat could lead

to increased vandalism; and because plants on private lands have few

protections under section 9 of the Act, acts of take or vandalism would

be difficult to prosecute. Where the taxon does occur on Federal lands

or where Federal involvement may occur on non-Federal lands, actions

that could adversely affect this taxon would be subject to consultation

under section 7 of the Act. In some cases, delineating areas as

critical habitat may provide a benefit to the taxon by increasing

awareness of its location and by triggering additional consultations

under section 7 that otherwise might not occur if the Federal agencies

are unaware of population locations. The locations of A. lentiginosus

var. coachellae on Federal land are being tracked and additional

surveys are being conducted as part of the planning process for the

Coachella Valley Multispecies Habitat Conservation Plan. Due to this

active planning effort, a designation of critical habitat would not

provide any benefit through increased awareness or through consultation

with the Service. The Service determines that designation of critical

habitat for this taxon will provide it no additional conservation

benefits beyond those provided by its listing, and that the designation

could lead to acts of collection or vandalism. Therefore, the risks

associated with a designation of critical habitat outweigh the possible

benefits of designating critical habitat. Designation of critical

habitat is, therefore, not prudent.

Astragalus lentiginosus var. piscinensis

Astragalus lentiginosus var. piscinensis is restricted to a 6-mile

stretch of alkali flat habitat and the transition zones to alkali scrub

paralleling Fish Slough, in Inyo and Mono Counties, California. These

habitat types form a ring around the seasonally and permanently flooded

wetland areas of the slough itself. Over 60 percent of this population

is located in the northern portion of the slough on land owned by the

LADWP and approximately 35 percent of known A. lentiginosus var.

piscinensis plants grow in the central zone of the slough on lands

owned and managed by both BLM and LADWP. About 5 percent are in

scattered patches downstream as far as McNally Canal, but Fish Slough

is narrow at its southern end, with little suitable habitat (P. Novak,

in litt. 1992; W. Ferren, in litt. 1992).

The alkali flat and alkali scrub habitat in the Fish Slough

ecosystem were well-mapped by 1991 (Ferren 1991a ) and the distribution

of Astragalus lentiginosus var. piscinensis was mapped by BLM and LADWP

in 1992, during surveys in which all potential habitat was searched.

The habitat types in which A. lentiginosus var. piscinensis grows are

visually different in dominant species than the surrounding upland

habitat and are limited in extent. The lands on which A. lentiginosus

var. piscinensis occurs receive specific management consideration due

to its inclusion in an ACEC. The entire range of this taxon is

encompassed within the Fish Slough ACEC under multi-agency management

that includes BLM and the LADWP and this, combined with its proximity

to a BLM Resource Area office, have provided A. lentiginosus var.

piscinensis substantial recognition by BLM staff. As a result of this

taxon occurring partially on lands managed by the BLM, section 7

consultations are probable. Because the habitat of this taxon is

distinctive and the Fish Slough area is a management area of specific

concern to the BLM, a designation of critical habitat would not provide

A. lentiginosus var. piscinensis any additional recognition, or

increased protection through consultation, beyond that provided by its

listing. In 1991, LADWP constructed a 32 ha (80 ac) cattle exclosure at

the northern end of the slough. In 1992, over 95 percent of the A.

lentiginosus var. piscinensis plants in the northern zone were within

the exclosure. Other than the area encompassed by the exclosure in the

north end of Fish Slough, lands under LADWP management that support

this taxon are grazed (Paula Hubbard, LADWP, pers. comm. 1996). Grazing

is not permitted in the habitat of A. lentiginosus var. piscinensis on

lands managed by BLM, in the central zone of the slough. The Service

recognizes the efforts of the LADWP to protect A. lentiginosus var.

piscinensis from the direct effects of trampling in the north region of

the Slough by constructing a fenced exclosure and commends the efforts

of the BLM and LADWP to monitor the status of the plant. Critical

habitat designation on these lands would not change the way those lands

are managed or require that specific management actions take place.

Because this taxon is very narrowly distributed, any activity that

would be significant enough to be considered an adverse modification of

critical habitat would also likely jeopardize the continued existence

of the species. For these reasons, the Service determines that

designation of critical habitat for this taxon is not prudent because

it would provide no additional benefit to the species beyond that

conferred by listing.

Astragalus magdalenae var. peirsonii

BLM manages all of the Algodones Dunes, the location of the only

confirmed extant populations of Astragalus magdalenae var. peirsonii in

the United States. Given the sensitivity of the sand dune habitat of

this species to physical disturbance and the limited distribution and

reliance of A. magdalenae var. peirsonii to a specific habitat type,

the biological threshold for ``jeopardy'' and ``destruction or adverse

modification'' is essentially identical. That is, any action that would

impact the habitat of this species to the degree of causing destruction

or adverse modification (i.e., appreciably diminishing the value of the

area for both the survival and recovery of the species) would also

jeopardize the continued existence of the species (i.e., reduce

appreciably the likelihood of both the survival and recovery of a

listed species in the wild by reducing the reproduction, numbers, or

distribution of that species).

[[Page 53613]]

Approximately 180 sq mi of the Algodones Dunes are open to OHV

access and 30 sq mi of dunes are ``closed'' to OHV use. The Service's

review of aerial photography of Algodones Dunes indicates that the most

intensive OHV use and the resulting destruction of plant habitat occurs

in about 1/3 of the open area. Given the public's misperception about

critical habitat and greater access to the dunes by OHV users (see

Factor A of the ``summary of factors Affecting the Species'' section of

this rule), it seems likely that a designation of critical habitat

could lead to acts of vandalism. The Service believes that if critical

habitat is designated for Astragalus magdalenae var. peirsonii, in any

portion of the dune system, such action may provoke deliberate

incidents of vandalism by OHV users. The public's misperception that

critical habitat essentially limits or nullifies use of public lands

may serve to encourage acts of vandalism. The threat of vandalism on

Federal lands exists for this species.

The Service finds that critical habitat designation would provide

little conservation benefit over that provided by listing where this

species occurs. The Service acknowledges that critical habitat

designation, in some situations, may provide limited additional benefit

to a species by identifying areas important for the conservation of the

species and calling attention to those areas in special need of

protection. The BLM is already aware of the presence of Astragalus

magdalenae var. peirsonii and its status. Critical habitat designation

on these lands would not necessarily change the way those lands are

managed or require that specific management actions take place. All

activities that may affect the species on these Federal lands would be

subject to section 7 consultation. Thus, with the listing of A.

magdalenae var. peirsonii, activities occurring on all lands under

Federal jurisdiction or ownership that may adversely affect A.

magdalenae var. peirsonii would prompt the same standard for

consultation pursuant to section 7(a)(2) of the Act and the

implementing regulations pertaining thereto regardless of whether

critical habitat has been designated. The Service believes that the

conservation of this species on Federal lands can best be addressed by

working directly with the BLM during the recovery planning process and

the interagency coordination and consultation processes of section 7.

In conclusion, the Service has weighed the general lack of conservation

benefit of designating critical habitat beyond that provided by listing

against the detrimental effects of the increased threat of vandalism

and the potential for misunderstandings of critical habitat by the

public, and concludes that critical habitat is not prudent for A.

magdalenae var. peirsonnii.

Astragalus tricarinatus

As of January 1997, Astragalus tricarinatus is known to be extant

along approximately 2 to 3 km (1 to 2 mi) of Big Morongo Canyon and its

tributary canyons. Collections of this taxon exist from three other

canyons within its range, however at two sites, only a single plant was

found. At Big Morongo Canyon, this taxon is found on lands managed by

the BLM and included within a preserve. Any Federal action that occurs

in the wash habitat of this species will require consultation with the

Service through the section 7 guidelines. Because A. tricarinatus

occurs in only a few locations, any Federal action significant enough

to be considered adverse modification of critical habitat would also

likely jeopardize the continued existence of this species, thus there

is no additional conservation benefit to designating critical habitat.

The habitat map that would be required for designation of critical

habitat would delineate occupied habitat areas, and would increase the

potential for overcollecting by amateur and unethical professional

botanists, especially since one of the populations is easily accessible

from a road. Increases in collection of rare plant species following

publication of articles discussing their rarity has been documented in

the past (Gary Wallace, Service, pers. comm. 1997). The Service

determines that the negative effects of designating critical habitat

outweigh any potential benefits of its designation. For these reasons,

the Service determines that designation of critical habitat for this

taxon is not prudent because it would provide no additional benefit to

the species beyond that conferred by its listing, and the designation

of critical habitat would increase the potential for acts of vandalism

due to the public's misperceptions about critical habitat. Therefore,

designation of critical habitat for A. tricarinatus is not prudent.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Act include recognition, recovery actions,

requirements for Federal protection, and prohibitions against certain

activities. Recognition through listing results in public awareness and

conservation actions by Federal, State, and local agencies, private

organizations, and individuals. The Act provides for possible land

acquisition and cooperation with the States and requires that recovery

actions be carried out for all listed species. The protection required

of Federal agencies and the prohibitions against certain activities

involving listed plants are discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to

evaluate their actions with respect to any species that is proposed or

listed as endangered or threatened and with respect to its critical

habitat, if any is being designated. Regulations implementing this

interagency cooperation provision of the Act are codified at 50 CFR

402. Section 7(a)(4) requires Federal agencies to confer with the

Service on any action that is likely to jeopardize the continued

existence of a species proposed for listing or result in destruction or

adverse modification of proposed critical habitat. If a species is

subsequently listed, section 7(a)(2) requires Federal agencies to

ensure that activities they authorize, fund, or carry out are not

likely to jeopardize the continued existence of a listed species or to

destroy or adversely modify its critical habitat. If a Federal action

may affect a listed species or its critical habitat, the responsible

Federal agency must enter into formal consultation with the Service.

Four of the five taxa occur wholly or primarily on Federal lands

managed by the BLM or the DOD. Three of the taxa occur partially or

wholly within areas designated as ACECs, one species occurs within a

wind energy development corridor, and one species occurs within a

recreation area. BLM activities that could potentially affect these

taxa and their habitats include review of mining operation plans and

minerals leasing, geothermal energy leasing, permitting of grazing,

alteration of dams and hydrologic conditions at Fish Slough, the

permitting of pipeline maintenance, wind energy development and

associated rights-of-way in the Coachella Valley, and the development

of recreational facilities and improvement of access in the Imperial

Dunes Recreation Area. The BLM is currently developing a Habitat

Conservation Plan for the desert tortoise in the western Mojave Desert

that includes the entire range of Astragalus jaegerianus. Specific

actions have not been identified at this time. The DOD training

activities conducted at the NTC at Fort Irwin could potentially affect

Astragalus jaegerianus. Specific actions

[[Page 53614]]

on DOD lands have not been identified at this time.

The Act and its implementing regulations set forth a series of

general prohibitions and exceptions that apply to all threatened and

endangered plants. All prohibitions of section 9(a)(2) of the Act,

implemented by 50 CFR 17.61 for endangered plants, and at 50 CFR 17.71

for threatened plants apply. These prohibitions, in part, make it

illegal for any person subject to the jurisdiction of the United States

to import or export, transport in interstate or foreign commerce in the

course of a commercial activity, sell or offer for sale in interstate

or foreign commerce, remove and reduce to possession these species from

areas under Federal jurisdiction. In addition, for plants listed as

endangered, the Act prohibits the malicious damage or destruction on

areas under Federal jurisdiction and the removal, cutting, digging up,

or damaging or destroying of such plants in knowing violation of any

State law or regulation, including State criminal trespass law. Section

4(d) of the Act allows for the provision of such protection to

threatened species. This protection may apply to Astragalus

lentiginosus var. piscinensis and A. magdalenae var. peirsonii in the

future if regulations are promulgated. Seeds from cultivated specimens

of threatened plant species are exempt from these prohibitions provided

that their containers are marked ``Of Cultivated Origin.'' Certain

exceptions apply to agents of the Service and State conservation

agencies.

The Act and 50 CFR 17.62, 17.63, and 17.72 also provide for the

issuance of permits to carry out otherwise prohibited activities

involving endangered and threatened plant species under certain

circumstances. Such permits are available for scientific purposes and

to enhance the propagation or survival of the species. For threatened

plants, permits also are available for botanical or horticultural

exhibition, educational purposes or special purposes consistent with

the purposes of the Act. It is anticipated that few trade permits would

ever be sought or issued because these species are not common in

cultivation or in the wild.

It is the policy of the Service, published in the Federal Register

on July 1, 1994, (59 FR 34272) to identify to the maximum extent

practicable at the time a species is listed those activities that would

or would not be likely to constitute a violation of section 9 of the

Act. The intent of this policy is intended to increase public awareness

of the effect of this listing on proposed and ongoing activities within

the species' range. Four of the taxa in this rule are known to occur on

lands under the jurisdiction of the BLM, with one also occurring on

lands under the jurisdiction of the DOD. Collection, damage, or

destruction of individuals of these species on Federal lands is

prohibited, although in appropriate cases a Federal endangered species

permit may be issued to allow collection. Such activities on non-

Federal lands would constitute a violation of section 9 if conducted in

knowing violation of California State law or regulations, including

violation of State criminal trespass law. The Service believes that,

based upon the best available information, the following actions will

not result in a violation of section 9, provided these activities are

carried out in accordance with existing regulations and permit

requirements:

(1) Activities authorized, funded, or carried out by Federal

agencies (e.g., grazing management, agricultural conversions, wetland

and riparian habitat modification, flood and erosion control,

residential development, recreational trail development, road

construction, hazardous material containment and cleanup activities,

prescribed burns, pesticide/herbicide application, pipelines or utility

lines crossing suitable habitat,) when such activity is conducted in

accordance with any reasonable and prudent measures given by the

Service in a consultation conducted under section 7 of the Act;

(2) Casual, dispersed human activities on foot or horseback (e.g.,

bird watching, sightseeing, photography, camping, hiking);

(3) Activities on private lands that do not require Federal

authorization and do not involve Federal funding, such as grazing

management, agricultural conversions, flood and erosion control,

residential development, road construction, and pesticide/herbicide

application when consistent with label restrictions;

(4) Residential landscape maintenance, including the clearing of

vegetation around one's personal residence as a fire break.

The Service believes that the following might potentially result in

a violation of section 9; however, possible violations are not limited

to these actions alone:

(1) Unauthorized collecting of the species on Federal lands;

(2) Application of pesticides/herbicides in violation of label

restrictions;

(3) Interstate or foreign commerce and import/export without

previously obtaining an appropriate permit. Permits to conduct

activities are available for purposes of scientific research and

enhancement of propagation or survival of the species.

The Act and 50 CFR 17.62 and 17.63 for endangered plants and 17.72

for threatened plants provide for the issuance of permits to carry out

otherwise prohibited activities involving endangered and threatened

plants under certain circumstances. Such permits are available for

scientific purposes and to enhance the propagation or survival of the

species. For threatened plants, permits are also available for

botanical or horticultural exhibition, educational purposes, or special

purposes consistent with the purposes of the Act.

Questions regarding whether specific activities would constitute

violations of section 9 should be directed to the Field Supervisor of

the Service's Carlsbad Field Office (see ADDRESSES section). Requests

for copies of the regulations concerning listed plants (50 CFR 17.61

and 17.71) and general inquiries regarding prohibitions and permits may

be addressed to the U.S. Fish and Wildlife Service, Ecological

Services, Endangered Species Permits, 911 N.E. 11th Avenue, Portland,

Oregon, 97232-4181 (telephone 503/231-2063; facsimile 503/231-6243).

National Environmental Policy Act

The Fish and Wildlife Service has determined that Environmental

Assessments and Environmental Impact Statements, as defined under the

authority of the National Environmental Policy Act of 1969, need not be

prepared in connection with regulations adopted pursuant to section

4(a) of the Endangered Species Act of 1973, as amended. A notice

outlining the Service's reasons for this determination was published in

the Federal Register on October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

This rule does not contain any information collection requirements

for which the Office of Management and Budget (OMB) approval under the

Paperwork reduction Act, 44 U.S.C. 3501 et seq. is required. An

information collection related to the rule pertaining to permits for

endangered and threatened species has OMB approval and is assigned

clearance number 1018-0094. This rule does not alter that information

collection requirement. For additional information concerning permits

and associated requirements for threatened species, see 50 CFR 17.32.

[[Page 53615]]

References Cited

A complete list of all references cited herein is available upon

request, from the Ventura Field Office (see ADDRESSES above).

Author. The primary author of this final rule is Diane Steeck,

Ventura Field Office, U.S. Fish and Wildlife Service, 2493 Portola

Road, Suite B, Ventura, California 93003 (805/644-1766).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, the Service amends part 17, subchapter B of chapter I,

Title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

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

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

2. Amend section 17.12(h) by adding the following, in alphabetical

order under FLOWERING PLANTS, to the List of Endangered and Threatened

Plants to read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Species

-------------------------------------------------------- Historic range Family name Status When listed Critical Special

Scientific name Common name habitat rules

--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *

Flowering Plants

* * * * * * *

Astragalus jaegerianus........... Lane Mountain milk- U.S.A. (CA)........ Fabaceae........... E 647 NA NA

vetch.

* * * * * * *

Astragalus lentiginous var. Coachella Valley U.S.A. (CA)........ Fabaceae........... E 647 NA NA

coachellae . milk-vetch.

* * * * * * *

Astragalus lentiginous var. Fish Slough milk- U.S.A. (CA)........ Fabaceae........... T 647 NA NA

piscinensis. vetch.

* * * * * * *

Astragalus magdalenae var. Peirson's milk-vetch U.S.A. (CA)........ Fabaceae........... T 647 NA NA

peirsonii .

* * * * * * *

Astragalus tricarinatus.......... Triple-ribbed milk- U.S.A. (CA)........ Fabaceae........... E 647 NA NA

vetch.

--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: September 29, 1998.

Jamie Rappaport Clark,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 98-26734 Filed 10-5-98; 8:45 am]

BILLING CODE 4310-55-P