[Federal Register Volume 64, Number 100 (Tuesday, May 25, 1999)]
[Proposed Rules]
[Pages 28136-28142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12991]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF61


Endangered and Threatened Wildlife and Plants; Proposed 
Endangered Status for Astragalus pycnostachyus var. lanosissimus 
(Ventura Marsh Milk-vetch)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose 
endangered species status pursuant to the Endangered Species Act of 
1973, as amended (Act), for Astragalus pycnostachyus var. lanosissimus 
(Ventura marsh milk-vetch). Historically known from a three-county 
region in coastal southern California, Astragalus pycnostachyus var. 
lanosissimus was believed extinct until its rediscovery in 1997. The 
newly discovered and only known extant population of this taxon occurs 
in Ventura County, California. This population occupies less than one 
acre and is located in degraded dune habitat previously used for 
disposal of petroleum wastes. The most significant current threats to 
Astragalus pycnostachyus var. lanosissimus are direct destruction of 
this population and alteration of its habitat from proposed soil 
remediation, residential development, and associated activities. 
Because of the small area occupied by this taxon, it is also threatened 
by catastrophic natural and human-caused events. Competition from 
nonnative invasive plant species and predation by nonnative snails are 
additional threats. This proposal, if made final, would extend the 
Act's protection to this plant. We seek additional data and invite 
comments from the public on this proposed rule.

DATES: Comments from all interested parties must be received by July 
26, 1999. Public hearing requests must be received by July 9, 1999.

ADDRESSES: Send comments and materials concerning this proposal and 
public hearing requests to the Field Supervisor, Ventura Fish and 
Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, 
Suite B, Ventura, California, 93003. Comments and materials received, 
as well as the supporting documentation used in preparing this rule, 
will be available for public inspection, by appointment, during normal 
business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Diane Steeck, Botanist, at the address 
above (telephone 805/644-1766; facsimile 805/644-3958).

SUPPLEMENTARY INFORMATION:

Background

    Astragalus pycnostachyus var. lanosissimus (Ventura marsh milk-
vetch) was first described by Per Axel Rydberg (1929) as Phaca 
lanosissima from an 1882 collection by S.B. and W.F. Parish made from 
``La Bolsa,'' probably in what is now Orange County, California. The 
combination Astragalus pycnostachyus var. lanosissimus was assigned to 
this taxon by Philip Munz and Jean McBurney in 1932 (Munz 1932).
    Astragalus pycnostachyus var. lanosissimus is an herbaceous 
perennial in the pea family (Fabaceae). It has a thick taproot and 
multiple erect, reddish stems, 40 to 90 centimeters (cm) (16 to 36 
inches (in)) tall, that emerge from the root crown. The pinnately 
compound leaves are densely covered with silvery-white hairs. The 27-39 
leaflets are 5 to 20 millimeters (mm) (0.2 to 0.8 in) long. The 
numerous yellowish-white to cream colored flowers are in dense clusters 
and are 7 to 10 mm (0.3 to 0.4 in) long. The calyx teeth are 1.2 to 1.5 
mm (0.04 in) long. The nearly sessile, single-celled pod is 8 to 11 mm 
(0.31 to 0.43 in) long (Barneby 1964). The blooming time has been 
recorded as July to October (Barneby 1964); however, the one extant 
population was observed in flower in June 1997. This variety is 
distinguished from Astragalus pycnostachyus var. pycnostachyus by the 
length of calyx tube, calyx teeth and peduncles.
    The type locality is ``La Bolsa,'' where the plant was collected in 
1882 by S.B. and W.F. Parish (Barneby 1964). Based on the labeling of 
other specimens collected by the Parishes in 1881 and 1882, Barneby 
(1964) suggested that this collection may have come from the

[[Page 28137]]

Ballona marshes in Los Angeles County. However, Critchfield (1978) 
believed that ``La Bolsa'' could easily have referred to Bolsa Chica, a 
coastal marsh system located to the south in what is now Orange County. 
He noted that Orange County was not made a separate County from Los 
Angeles until 1889, seven years after the Parish's collection was made. 
In the five decades following its discovery, Astragalus pycnostachyus 
var. lanosissimus was collected only a few times, always from locations 
in coastal Los Angeles and Ventura counties. In Los Angeles County it 
was collected from near Santa Monica in 1882, the Ballona marshes just 
to the south in 1902, and ``Cienega'' in 1904, also likely near the 
Ballona wetlands. In Ventura County it was collected in 1901 and 1925 
from Oxnard and in 1911 from ``Ventura, California,'' a city adjacent 
to Oxnard. By 1964, Barneby (1964) believed that it had certainly been 
extirpated from Santa Monica southward, noting that there was still the 
possibility it survived in Ventura County (although he knew of no 
locations at that time). The species was rediscovered in 1967 through 
the chance collection by R. Chase of a single specimen growing by a 
roadside between the cities of Ventura and Oxnard. Searches uncovered 
no other living plants at that location, although some mowed remains 
that were discovered on McGrath State Beach lands across the road from 
the collection site were believed to belong to this taxon (information 
on herbarium label from specimen collected by R.M. Chase, 1967). 
Floristic (plant) surveys and focused searches conducted in the 1970s 
and 1980s at historic collection locations did not locate any 
populations of Astragalus pycnostachyus var. lanosissimus and the plant 
was presumed extinct (Isley 1986, Spellenberg 1993, Skinner and Pavlik 
1994). On June 12, 1997, a population of the plant was rediscovered by 
Service biologist Kate Symonds, in a degraded coastal dune system near 
Oxnard, California. This population is located about one mile from the 
site of Chase's 1967 discovery at McGrath State Beach.
    Almost nothing is known of the habitat requirements of Astragalus 
pycnostachyus var. lanosissimus. Specimen labels from collections and 
original published descriptions contain virtually no habitat 
information. It is possible that some insight into its habitat may be 
inferred from the habitat of the related variety, A. pycnostachyus var. 
pycnostachyus, which is found in or at the high edge of coastal 
saltmarshes and seeps. However, any strict concordance in habitat 
requirements of these related taxa is conjectural. The newly discovered 
population of Astragalus pycnostachyus var. lanosissimus occurs in a 
sparsely vegetated low area, at an elevation of about 10 meters (30 
feet), in a site previously used for disposal of petroleum waste 
products (Impact Sciences, Inc. 1997). Dominant shrub species at the 
site are Baccharis pilularis (coyote brush), Baccharis salicifolia 
(mule fat), Salix lasiolepis (arroyo willow), and the nonnative 
Myoporum laetum (myoporum) (Impact Sciences, Inc. 1997). The population 
itself occurs with patchy vegetative cover provided primarily by 
Baccharis pilularis, Baccharis salicifolia, a nonnative Carpobrotus sp. 
(seafig), a nonnative beardgrass, Polypogon monspeliensis (annual beard 
grass), and a nonnative annual grass, Bromus madritensis ssp. rubens 
(red brome). Soils are reported to be loam-silt loams (Impact Sciences, 
Inc. 1997). Soils may have been brought in from other locations as a 
cap for the disposal site once it was closed. We do not know the 
specific origin of the soil used to cap the waste disposal site, 
however because of the costs of transport, the soil source is likely 
from the immediate site or from a local source.
    The population of Astragalus pycnostachyus var. lanosissimus 
consisted of about 374 plants total in 1997, of which 260 were small 
plants, thought to have germinated in the last year. Fewer than 65 
plants in the population produced fruit in 1997 (Impact Sciences, Inc. 
1997). In 1998, fewer than 200 plants were found on the site, although 
a greater number were reproducing than in the previous year (Impact 
Sciences, Inc. 1998). The plants are growing in an area of less than 
one acre, with one outlying plant located about 50 meters from the main 
group (Impact Sciences, Inc. 1998).
    The land on which the only known population of Astragalus 
pycnostachyus var. lanosissimus grows is privately owned. A project to 
decontaminate the soils and construct a housing development on the site 
is proposed (Impact Sciences, Inc. 1998). The most significant current 
threats to Astragalus pycnostachyus var. lanosissimus are direct 
destruction of this population and alteration of habitat from proposed 
soil remediation (clean-up) and residential development activities. Due 
to its small population size and the very restricted area it occupies, 
this taxon is also threatened by catastrophic natural and human-caused 
disturbances. Competition from nonnative, invasive, plant species and 
predation from nonnative snail species are additional threats.

Previous Federal Action

    Federal government actions involving Astragalus pycnostachyus var. 
lanosissimus began as a result of section 12, 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. The Smithsonian Institute presented a report (House 
Document No. 94-51), to Congress on January 9, 1975, and included 
Astragalus pycnostachyus var. lanosissimus on List C, among those taxa 
believed possibly extinct in the wild. We published a notice in the 
July 1, 1975, Federal Register (40 FR 27823) of our acceptance of the 
report as a petition within the context of section 4(c)(2) (petition 
provisions are now found in section 4 (b)(3) of the Act) and expressed 
our intent to review the status of the plant taxa named therein.
    On June 16, 1976, we published a proposed rule in the Federal 
Register (41 FR 24523) to list approximately 1,700 vascular plant 
species pursuant to section 4 of the Act. We assembled a list, that 
included Astragalus pycnostachyus var. lanosissimus, from the comments 
and data received by the Smithsonian Institution and information 
collected in our own files in response to House Document No. 94-51 and 
the July 1, 1975, Federal Register publication. We summarized the 
general comments received in relation to the 1976 proposal in the April 
26, 1978, Federal Register publication (43 FR 17909). In 1978, 
amendments to the Act required that all proposals over 2 years old be 
withdrawn. A 1-year grace period was given to those proposals already 
more than 2 years old. In a December 10, 1979, notice (44 FR 70796) we 
withdrew the portion of the June 16, 1976, proposal that had not been 
made final, which included Astragalus pycnostachyus var. lanosissimus.
    On December 15, 1980, we published an updated candidate notice of 
review for plants in the Federal Register (45 FR 82480). This notice 
included Astragalus pycnostachyus var. lanosissimus in a list of 
category 1 candidate species that were possibly extinct in the wild. 
These category 1 candidates would have been given high priority for 
listing were extant populations to be confirmed. Category 1 comprised 
taxa for which sufficient information was on file to support proposals 
for endangered and threatened status.
    We maintained Astragalus pycnostachyus var. lanosissimus as a 
category 1 candidate in subsequent

[[Page 28138]]

notices: November 28, 1983 (48 FR 53640), September 27, 1985 (50 FR 
39526), and February 21, 1990 (55 FR 6184). On September 30, 1993, we 
published a Federal Register notice (58 FR 51144) informing the public 
that we were moving taxa whose existence in the wild was in doubt, 
including Astragalus pycnostachyus var. lanosissimus, to category 2. 
Category 2 comprised taxa for which there was available biological 
information in our possession indicating that listing was possibly 
appropriate, but the information was insufficient to support listing 
the species as endangered or threatened. In the February 28, 1996, 
notice of review (61 FR 7596), we informed the public that we were 
discontinuing the designation of multiple categories of candidates and 
that we would consider only taxa meeting the definition of former 
category 1 as candidates for listing. Thus Astragalus pycnostachyus 
var. lanosissimus was excluded from this and subsequent notices of 
review. In 1997, A. pycnostachyus var. lanosissimus was rediscovered 
and a review of the taxon's status indicated that a proposed rule was 
warranted.
    The processing of this proposed rule conforms with our final 
listing priority guidance for fiscal years 1998 and 1999, published in 
the Federal Register on May 8, 1998 (63 FR 25502). This guidance 
establishes a three-tiered approach that assigns relative priorities on 
a descending basis, to listing actions to be carried out under section 
4 of the Act (16 U.S.C. 1531 et seq.). The guidance calls for giving 
highest priority to completion of emergency listings for species facing 
a significant risk to their well-being (Tier 1). The next highest 
priority is for processing final decisions on pending proposed 
listings, resolution of the conservation status of species identified 
as candidates, processing 90-day or 12-month administrative findings on 
petitions, and for a limited number of delisting/reclassification 
activities (Tier 2). Third priority is the processing of petitions for 
critical habitat designations and the preparation of proposed and final 
critical habitat designations (Tier 3). This proposed rule for 
Astragalus pycnostachyus var. lanosissimus falls under Tier 2.

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. We may determine a species 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 pycnostachyus var. lanosissimus (Ventura 
marsh milk-vetch) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    With the exception of the extant Ventura County population, 
Astragalus pycnostachyus var. lanosissimus is believed extirpated from 
all other areas from which it has been collected. In Los Angeles 
County, this taxon was collected in the late 1800s and early 1900s from 
Santa Monica, Ballona marsh, and ``Cienega'' (probably near Ballona 
marsh). These coastal areas are now urbanized within the expansive Los 
Angeles metropolitan area. About 90 percent of the Ballona wetlands, 
once encompassing almost 2000 acres, have been drained, dredged, and 
developed into the urban areas of Marina del Rey and Venice 
(Critchfield 1978; Friends of Ballona Wetlands 1998). Ballona Creek, 
the primary freshwater source for the wetland, had been straightened, 
dredged and channelized by 1940 (Friesen, et al. 1981). Despite 
periodic surveys of what remains at the Ballona wetlands, Astragalus 
pycnostachyus var. lanosissimus has not been collected there since the 
early 1900s (Gustafson 1981; herbarium labels from collections by H. P. 
Chandler and by E. Braunton, 1902, housed at University of California 
at Berkeley Herbaria). Barneby (1964) believed that Astragalus 
pycnostachyus var. lanosissimus was extirpated from all areas south of 
Santa Monica by the mid-1960s. In 1987, botanists searched specifically 
for Astragalus pycnostachyus var. lanosissimus at previous collection 
locations throughout its range, including Bolsa Chica in Orange County 
and on public lands around Oxnard in Ventura County, without success 
(F. Roberts, U.S. Fish and Wildlife Service, in litt. 1987; R. Burgess, 
California Native Plant Society, in litt. 1987; T. Thomas, USFWS, pers. 
comm. 1997). Point Muga Naval Air Weapons Station in Southern Ventura 
County may have habitat. Detailed surveys have not been conducted 
there, however Astragalus pycnostachyus var. lanosissimus was not found 
during cursory surveys of the base, nor has this taxon ever been 
collected there in the past.
    The single known population of Astragalus pycnostachyus var. 
lanosissimus occurs in a degraded backdune community near the city of 
Oxnard. From 1955 to 1981 the land on which it occurs was used as a 
disposal site for oil field wastes (Impact Sciences, Inc. 1998). In 
August 1998, the City of Oxnard released a Draft Environmental Impact 
Report (DEIR) for development of this site (Impact Sciences, Inc. 
1998). The project proposed for the site includes remediation of soils 
contaminated with hydrocarbons, followed by construction of 364 homes 
and a 6-acre lake on 91 acres of land, including that on which 
Astragalus pycnostachyus var. lanosissimus grows. The proposed soil 
remediation would involve excavation and stockpiling of the soils, 
followed by soil treatment and redistribution of the soils over the 
site (Impact Sciences, Inc. 1998). The proposed project, as described 
in the DEIR, would entirely eliminate the only known population of 
Astragalus pycnostachyus var. lanosissimus from this site, resulting in 
the extinction of this taxon in the wild. In March 1999, a Final 
Environmental Impact Report (FEIR) was released by the City of Oxnard. 
This FEIR includes an alternative to the proposed project in which the 
population of Astragalus pycnostachyus var. lanosissimus would not be 
directly eliminated, but excavation for soil remediation would occur to 
within 50 feet of the population. A 5-acre area would be left 
undeveloped around the population, to serve as a buffer from the 
residential development that would surround it.

B. Overuse for Commercial, Recreational, Scientific, or Educational 
Purposes

    Overutilization is not known to be a problem for Astragalus 
pycnostachyus var. lanosissimus at present. Soon after this taxon was 
discovered, the project proponent installed a fence around the 
population, which appears to have been effective in minimizing 
unauthorized visitation. However, some plants have been transplanted to 
an off-site greenhouse. Because of the population's small size, the 
removal of even modest numbers of plants from the population could 
increase the risk of extinction.

C. Disease or Predation.

    A sooty fungus was found on the leaves of Astragalus pycnostachyus 
var. lanosissimus in late summer 1997, as leaves began to senesce (age) 
and the plants entered a period of dormancy (Impact Sciences, Inc. 
1998; T. Yamashita, Sunburst Plant Disease Clinic, pers. comm. 1998). 
The effects of the fungus on the population are not known, but it is 
possible that the fungus attacks senescing leaves in great number only 
at the end of the growing season. The plants appeared robust when in 
flower in June 1997, matured seed by October 1997, and were regrowing 
in

[[Page 28139]]

spring 1998, after a period of dormancy, without obvious signs of the 
fungus (D. Steeck, USFWS, pers. obs. 1997, 1998).
    In spring 1998, during abundant seasonal rains, a nonnative snail 
from the Mediterranean, Otala lactea (milk snail), was present in great 
numbers in the population, feeding on adult and seedling plants of 
Astragalus pycnostachyus var. lanosissimus. Manual removal of snails, 
the use of snail baits, and the eventual cessation of rains reduced 
snail numbers. However, in years of high rainfall they may again affect 
the population.
    The seeds of Astragalus pycnostachyus var. lanosissimus in 1997 
were heavily infested with seed beetles (Bruchidae: Coleoptera). Seed 
predation by seed beetles and weevils has been reported among other 
members of the genus Astragalus (Platt et al. 1974; Lesica 1995). In a 
seed collection made for conservation purposes, we found that most 
fruits in 1997 partially developed at least four seeds. However seed 
predation reduced the average number of undamaged seeds to only 1.8 per 
fruit (D. Steeck, USFWS, and M. Meyer, California Department of Fish 
and Game, unpublished data). The level of year to year variation in 
seed predation and its consequences for the population of Astragalus 
pycnostachyus var. lanosissimus are not known at this time.

D. The Inadequacy of Existing Regulatory Mechanisms

    Astragalus pycnostachyus var. lanosissimus currently receives no 
protection under Federal law, and it is not currently listed by the 
State of California. However, on February 4, 1999, the California Fish 
and Game Commission accepted a petition to list the species under the 
California Endangered Species Act, making it a candidate for State 
listing. California Senate Bill 879, passed in 1997 and effective 
January 1, 1998, requires individuals to obtain a section 2081(b) 
permit from the California Department of Fish and Game (CDFG) to take a 
candidate species incidental to otherwise lawful activities, and 
requires that all impacts be fully mitigated and all measures be 
capable of successful implementation. However, these requirements have 
not been tested and it will be several years before their effectiveness 
can be evaluated.
    Remediation of the soils on the site and any proposed development 
must comply with the California Environmental Quality Act (CEQA) and 
the California Coastal Act. The CEQA requires a full public disclosure 
of the 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 the 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.'' Species that can be shown to meet the 
criteria for State listing, such as Astragalus pycnostachyus var. 
lanosissimus are considered under CEQA (CEQA Section 15380). Once 
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 social or economic considerations make 
mitigation infeasible. In the latter case, projects may be approved 
that cause significant environmental damage, such as destruction of 
endangered species. Protection of listed species through CEQA is, 
therefore, dependent upon the discretion of the lead agencies.
    The Coastal Zone Management Act of 1972 is a Federal statute that 
allowed for the establishment of the California Coastal Act (CCA) of 
1976. The CCA established a coastal zone. In Ventura County, the site 
of the only known extant population of Astragalus pycnostachyus var. 
lanosissimus occurs in the California Coastal Zone (Impact Sciences, 
Inc. 1998). As required by the CCA, Ventura County has developed a 
Coastal Land Use Plan. It currently designates the area occupied by 
Astragalus pycnostachyus var. lanosissimus as Open Space, thus 
amendments of the Coastal Land Use Plan will be required for approval 
of a residential development on this property. Land use decisions made 
by local agencies in the Coastal Zone are appealable to the California 
Coastal Commission. Although the Coastal Zone designation and CEQA 
require that unique biological resources, such as Astragalus 
pycnostachyus var. lanosissimus, are considered in the planning 
process, any protection offered by these regulatory mechanisms is 
ultimately at the discretion of the local and State agencies involved 
and is therefore inadequate to preclude the need to list this taxon.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Astragalus pycnostachyus var. lanosissimus is, by virtue of its 
small population size and the small area occupied, susceptible to 
extinction from natural and human-caused catastrophic events. An 
example of an uncertain but potentially catastrophic environmental 
effect is wildfire during the summer prior to seed maturation. There is 
also some potential for random events such as a plane crash (the taxon 
is under the extended center flight line of the Oxnard airport, and a 
crash occurred on the site in 1995 (Murphy in litt. 1997)) to cause 
extinction.
    Small population size also increases the susceptibility of this 
taxon to extinction from competition with nonnative plant species. 
Cortaderia selloana (pampas grass), Carpobrotus sp., Polypogon 
monspeliensis, and Bromus madritensis ssp. rubens are invasive 
nonnative plant species that occur at the site of the single extant 
population (Impact Sciences, Inc. 1997). Carpobrotus sp. in particular, 
are competitive, succulent species with the potential to cover vast 
areas in dense clonal mats. Polypogon monspeliensis grew in high 
densities around some mature individuals of Astragalus pycnostachyus 
var. lanosissimus in 1998 and seedlings were germinating among patches 
of Carpobrotus and Bromus in 1998 (D. Steeck, pers. obs. 1998). 
Seedling survival rates in these areas have not yet been determined. 
These invasive, nonnative species are associated with wholesale 
conversion of native plant communities, leading to declines and local 
extirpation of native species. While population trend information is 
not available, the presence of these nonnative species on the site is 
cause for concern that this plant community is vulnerable to conversion 
and the Astragalus pycnostachyus var. lanosissimus population is at 
risk.
    The small population risks described above in this section are 
increased by activities in the occupied habitat associated with 
planning for land use at the site. For example, at least two 
excavations were conducted in the population to examine the soils in 
which the plants occur (D. Steeck, pers. obs. 1997) and to examine the 
root structure of an adult plant (R. Smith, Impact Sciences 1998). In 
April 1998, four plants from the population were removed and 
transported to a greenhouse in a preliminary attempt at 
transplantation. In addition to the direct removal of reproducing 
individuals from the population, exploratory excavations within the 
population can potentially alter the hydrology of the micro-site where 
the plants are found, reduce seedling establishment by burying or 
removing seeds and seedlings from the soil, and injure plant roots.

[[Page 28140]]

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by Astragalus pycnostachyus var. lanosissimus in determining to 
propose this rule. Residential and commercial development have resulted 
in the loss and alteration of this taxon's coastal habitat and are the 
most likely cause of population extirpation historically. Loss and 
alteration of habitat from soil remediation activities and proposed 
residential development threaten the only known extant population. 
Other threats include competition from nonnative plant species and 
catastrophic natural and human-caused events which could diminish or 
destroy the very small extant population. Existing regulatory 
mechanisms are inadequate to protect this taxon. Based on our 
evaluation, the preferred action is to list Astragalus pycnostachyus 
var. lanosissimus as endangered.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: ``(i) the 
specific areas within the geographical area occupied by the species, at 
the time it is listed in accordance with the [Act], on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) which 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 is determined to be endangered or threatened. Critical 
habitat is not determinable when one or both of the following 
situations exist--(1) Information sufficient to perform required 
analyses of the impacts of the designation is lacking, or (2) the 
biological needs of the species are not sufficiently well known to 
permit identification of an area as critical habitat (50 CFR 
424.12(a)(2)). Our regulations (50 CFR 424.12(a)(1)) state that 
designation of critical habitat is not prudent when one or both of the 
following situations 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 threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species. 
For the reasons discussed below we find that designation of critical 
habitat for Astragalus pycnostachyus var. lanosissimus is not prudent.
    Critical habitat designation provides protection for listed species 
on Federal lands and on non-Federal lands or private lands where there 
is Federal involvement through authorization or funding of, or 
participation in, a project or activity (Federal nexus). If such a 
Federal nexus is found, then the Act provides protection through 
section 7 consultation procedures. Astragalus pycnostachyus var. 
lanosissimus occurs exclusively on privately owned land and the 
activities constituting threats to its existence (see ``Summary of 
Factors Affecting the Species'' section above) do not require Federal 
involvement and therefore are not subject to consultation under section 
7 of the Act. Our analysis has not identified a Federal nexus which 
would trigger section 7 consultation on land where the species occurs. 
With no current or future Federal nexus there will be no benefit to the 
species as a result of the consultation requirements under section 7 of 
the Act.
    This species occurs at a single locality, occupying less than an 
acre of property in a highly altered and rapidly urbanizing landscape. 
Due to its exclusive occurrence on private land, and with no Federal 
involvement in projects on those lands, the benefits of listing are 
limited, being restricted to the protective prohibitions provided under 
section 9 of the Act. As applied to plants, section 9 of the Act 
prohibits the importation and exportation of listed plant species into 
or from the United States. Further, under section 9 it is unlawful to 
remove and reduce to possession, or to maliciously damage or destroy, 
any listed plant species from areas under Federal jurisdiction. In 
addition, it is unlawful to remove, cut, dig up, or damage or destroy a 
listed plant species on any area in knowing violation of any State law 
or regulation or in violation of a State criminal trespass law. 
Finally, it is unlawful to deliver, receive, carry or transport, or 
sell or offer to sell the species in interstate or foreign commerce. As 
previously discussed, the residential development and soil remediation 
activities threatening this species occur wholly on private land. Any 
removal or destruction of this species on private land, if in 
compliance with State law, would not violate section 9. Designation of 
critical habitat would not make section 9 any more or less applicable 
to this plant species. As such, designation of critical habitat would 
provide no benefit to the species.
    Section 10 allows the Secretary to permit otherwise prohibited 
activity. Under certain circumstances, the Secretary may issue permits 
to take wildlife and fish (but not plants) in conjunction with 
otherwise legal activities (section 10(a)(1)(B)), and for scientific 
purposes (section 10(a)(1)(A)). These permits extend authorization to 
the applicant to impact the species, as opposed to impacting critical 
habitat. Impacts to habitat may be permitted under section 10(a)(1)(B) 
when the number of individual animals to be taken can not be 
quantified. In the case of this plant species which occurs solely on 
private land, neither section 10(a)(1)(A) nor section 10(a)(1)(B) are 
applicable. Designation of critical habitat would result in no benefit 
to the species under section 10 of the Act.
    Because this plant species occurs only on private land with no 
Federal nexus, section 7 of the act is not applicable. In addition, 
critical habitat designation will not invoke the protection afforded 
under section 9, and since, in this case, permitting is not applicable, 
there is no section 10 requirement to meet. Neither listing nor 
designation of critical habitat will require the private landowner to 
undertake active management or modify any of its activities on behalf 
of this species. Because all appropriate non-Federal regulating 
agencies are aware of this species and its location on private land, 
any additional notice to the general public and state and/or local 
government due to designation of critical habitat would not increase 
the protection afforded this species under the Act. Because the private 
landowner and the developer have been notified of the Federal status of 
this species, and because the survival and recovery of this species 
depends upon their participation and cooperation, we will continue to 
work with the property owner to further the conservation of the 
species. We conclude therefore that no benefit to the species would be 
realized through designation of critical habitat. For all of the above 
reasons we find it not prudent to designate critical habitat.

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 encourages

[[Page 28141]]

public awareness and results in conservation actions by Federal, State, 
and local agencies, private organizations, and individuals. The Act 
provides for possible land acquisition from willing sellers 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 
part 402. Section 7(a)(4) of the Act 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 listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of the 
species or 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. The single known extant population of Astragalus pycnostachyus 
var. lanosissimus occurs on privately owned land and our analysis has 
not identified a Federal nexus that will trigger consultation 
requirements under section 7 of the Act.
    The listing of Astragalus pycnostachyus var. lanosissimus as 
endangered would provide for the development of a recovery plan for 
this taxon. Such a plan would bring together Federal, State, and local 
efforts for the conservation of this taxon. The plan would establish a 
framework for agencies to coordinate activities and to cooperate with 
each other in conservation efforts. The plan would set recovery 
priorities and describe site-specific management actions necessary to 
achieve the conservation of this taxon.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered or 
threatened plants. With respect to Astragalus pycnostachyus var. 
lanosissimus, all prohibitions of section 9(a)(2) of the Act, 
implemented by 50 CFR 17.61 for endangered plants, apply (16 U.S.C. 
1538(a)(2)). 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, or remove and reduce the species to possession 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 endangered plants in knowing 
violation of any State law or regulation, including State criminal 
trespass law. Certain exceptions to the prohibitions apply to persons 
acting in an agency capacity for the Service and to State conservation 
agencies.
    The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of 
permits to carry out otherwise prohibited activities involving 
endangered plant taxa under certain circumstances. Such permits are 
available for scientific purposes and to enhance the propagation or 
survival of the species. Requests for copies of the regulations on 
listed species and inquiries about prohibitions and permits may be 
addressed to the U.S. Fish and Wildlife Service, Endangered Species 
Permits, 911 NE 11th Avenue, Portland, Oregon 97232-4181 (503/231-2063, 
facsimile 503/231-6243).
    It is our policy, 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 to increase public awareness of the effect of the 
listing on proposed and ongoing activities within the taxon's range. 
Astragalus pycnostachyus var. lanosissimus is not located on areas 
currently under Federal jurisdiction. Collection, damage, or 
destruction of this species on Federal lands would be prohibited 
(although in appropriate cases a Federal endangered species permit may 
be issued to allow collection for scientific or recovery purposes). 
Such activities on areas not under Federal jurisdiction would 
constitute a violation of section 9 if conducted in knowing violation 
of State law or regulations, or in violation of State criminal trespass 
law. Questions regarding whether specific activities would constitute a 
violation of section 9, should this species be listed, should be 
directed to the Field Supervisor of the Services's Ventura Fish and 
Wildlife Office (see ADDRESSES section).

Public Comments Solicited

    It is our intent that any final action resulting from this proposal 
will be as accurate and as effective as possible. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule. We particularly seek comments 
concerning:
    (1) Biological, commercial, trade, or other relevant data 
concerning any threat (or lack thereof) to Astragalus pycnostachyus 
var. lanosissimus;
    (2) The location of any additional populations of Astragalus 
pycnostachyus var. lanosissimus and the reasons why any habitat should 
or should not be determined to be critical habitat pursuant to section 
4 of the Act;
    (3) Additional information concerning the essential habitat 
features (biotic and abiotic), range, distribution, and population size 
of this taxon; and
    (4) Current or planned activities in the subject area and their 
possible impacts on this taxon.
    Final promulgation of the regulations on Astragalus pycnostachyus 
var. lanosissimus will take into consideration the comments and any 
additional information we receive, and such communications may lead to 
a final regulation that differs from this proposal.
    The Act provides for a public hearing on this proposal, if 
requested. Requests must be received within 45 days of the date of 
publication of the proposal in the Federal Register. Such requests must 
be made in writing and be addressed to the Field Supervisor (see 
ADDRESSES section).

National Environmental Policy Act

    We have determined that Environmental Assessments, 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. We 
published a notice outlining the basis for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244).
    Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to 
make this notice easier to understand including answers to questions 
such as the following: (1) Are the requirements in the notice clearly 
stated? (2) Does the notice contain technical language or jargon that

[[Page 28142]]

interferes with the clarity? (3) Does the format of the notice 
(grouping and order of the sections, use of headings, paragraphing, 
etc.) Aid or reduce its clarity? (4) Is the description of the notice 
in the Supplementary Information section of the preamble helpful in 
understanding the notice? What else could we do to make the notice 
easier to understand?
    Send a copy of any comments that concern how we could make this 
notice easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW, Washington, 
DC 20240. You may e-mail your comments to this address: 
E[email protected].

Required Determinations

    We have examined this regulation under the Paperwork Reduction Act 
of 1995 and found it to contain no information collection requirements.

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the Ventura Fish and Wildlife Office (see 
ADDRESSES section).
    Author: The primary author of this notice is Diane Steeck, U.S. 
Fish and Wildlife Service, Ventura Fish and Wildlife Office (see 
ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    For the reasons given in the preamble, we propose to amend part 17 
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. 
4201-4205; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. Section 17.12(h) is amended 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              Status         When      Critical     Special
         Scientific name                Common name                                                                     listed      habitat      rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                 *                  *                  *                    *                    *                  *                  *
Astragalus pycnostachyus var.      Ventura marsh milk-   U.S.A. (CA).........  Fabaceae--Pea.......  E                ..........          NA          NA
 lanosissimus.                      vetch.
 
                 *                  *                  *                    *                    *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: April 28, 1999.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 99-12991 Filed 5-24-99; 8:45 am]
BILLING CODE 4310-55-P