[Federal Register Volume 69, Number 108 (Friday, June 4, 2004)]
[Proposed Rules]
[Pages 31552-31569]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12658]



[[Page 31552]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AJ09


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for Astragalus lentiginosus var. 
piscinensis (Fish Slough 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 to 
designate critical habitat pursuant to the Endangered Species Act of 
1973, as amended (Act), for the federally threatened Astragalus 
lentiginosus var. piscinensis (Fish Slough milk-vetch). We propose to 
designate approximately 8,490 acres (ac) (3,435 hectares (ha)) of land 
in Mono and Inyo Counties, California.
    We hereby solicit data and comments from the public on all aspects 
of this proposal, including data on economic and other effects of the 
designation. We may revise this proposal prior to final designation to 
incorporate or address new information received during public comment 
periods.

DATES: We will accept comments until August 3, 2004. Public hearing 
requests must be received by July 19, 2004.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. You may send written comments and information to the Field 
Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 2493 Portola Road, Suite B, Ventura, CA 93003.
    2. You may send your comments by electronic mail (e-mail) to 
[email protected]. For directions on how to submit electronic 
filing of comments, see the ``Public Comments Solicited'' section below 
for file format and other information about electronic filing.
    3. You may hand-deliver written comments and information to our 
Ventura Fish and Wildlife Office, at the above address, or fax your 
comments to (805) 644-3958.
    All comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the above address.

FOR FURTHER INFORMATION CONTACT: Diane Noda, Field Supervisor, Ventura 
Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola 
Road, Suite B, Ventura, CA 93003 (telephone 805/644-1766; facsimile 
805/644-3958).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    It is our intent that any final action resulting from this proposal 
will be as accurate 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. On the basis of public comment, during 
the development of the final rule we may find that areas proposed are 
not essential, are appropriate for exclusion under section 4(b)(2), or 
not appropriate for exclusion, and in all of these cases, this 
information would be incorporated into the final designation. We 
particularly seek comments concerning:
    (1) The reasons why any areas should or should not be determined to 
be critical habitat as provided by section 4 of the Act, including 
whether the benefits of designation will outweigh any threats to the 
taxon resulting from the designation;
    (2) Specific information on the amount and distribution of 
Astragalus lentiginosus var. piscinensis and its habitat, and which 
habitat or habitat components are essential to its conservation and 
why;
    (3) Land use designations and current or planned activities in or 
adjacent to the area proposed and their relationship to the proposed 
critical habitat;
    (4) Current or planned water withdrawals or diversions in or 
adjacent to the area proposed and their relationship to the proposed 
critical habitat;
    (5) Any foreseeable economic or other potential impacts resulting 
from the proposed designation of critical habitat, in particular, any 
impacts on small entities and to the water user community;
    (6) Methodologies that we might use, pursuant to section 4(b)(2) of 
the Act, to determine if the benefits of excluding an area from 
critical habitat outweigh the benefits of designating the area as 
critical habitat;
    (7) Whether our approach to critical habitat designation could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments;
    (8) Additional information that can be used to characterize or more 
completely understand the regional aquifer that supports aquatic or 
riparian habitat in Fish Slough, or how local ground water pumping 
activities affect the hydrology of Fish Slough; and
    (9) Information or comment on the merits of the proposed 1,000 
meter wide upland area surrounding the alkaline soils, including the 
need or value of including all or part of this area to ensure an 
adequate supply of pollinators, manage for control of invasive species, 
and include sites that could be restored to alkaline soils and 
reoccupied by Astragalus lentiginosus var. piscinensis.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). Please submit electronic comments in ASCII file format and 
avoid the use of special characters and any form of encryption. Please 
also include Attn: ``RIN 1018-AJ09'' and your name and return address 
in the body of your message. If you do not receive a confirmation from 
the system that we have received your internet message, contact us 
directly by calling our Ventura Fish and Wildlife Office at phone 
number (805) 644-1766. Please note that the e-mail address ``[email protected]'' will be closed out at the termination of the public 
comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during normal 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record and we will honor such 
requests to the extent allowable by law. There also may be 
circumstances in which we would withhold from the rulemaking record a 
respondent's identity, as allowable by law. If you wish us to withhold 
your name and/or address, you must state this prominently at the 
beginning of your comment. We will not, however, consider anonymous 
comments. We will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety. Comments and materials 
received will be available for public inspection, by appointment, 
during normal business hours at the above address.

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Preamble

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, we have found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species while consuming significant amounts 
of available conservation resources. Our present system for designating 
critical habitat has evolved since its original statutory prescription 
into a process that provides little real conservation benefit, is 
driven by litigation and the courts rather than biology, limits our 
ability to fully evaluate the science involved, consumes enormous 
agency resources, and imposes huge social and economic costs. We 
believe that additional agency discretion would allow our focus to 
return to those actions that provide the greatest benefit to the 
species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species yet consumes large amounts of 
conservation resources. Sidle (1987) stated ``Because the ESA can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 445 species or 36 percent 
of the 1,244 listed species in the United States under the jurisdiction 
of the Service have designated critical habitat. We address the habitat 
needs of all 1,244 listed species through conservation mechanisms such 
as listing, section 7 consultations, the Section 4 recovery planning 
process, the Section 9 protective prohibitions of unauthorized take, 
the Section 6 funding to the states, and the Section 10 incidental take 
permit process. We believe that it is these measures that may make the 
difference between extinction and survival for many species.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected us to an ever-increasing series of court orders and court-
approved settlement agreements, compliance with which now consumes 
nearly the entire listing program budget. This leaves us with little 
ability to prioritize our activities to direct scarce listing resources 
to the listing program actions with the most biologically urgent 
species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, our own proposals to list critically 
imperiled species, and final listing determinations on existing 
proposals are all significantly delayed.
    The accelerated schedules of court-ordered designations have left 
us with almost no ability to provide for adequate public participation 
or to ensure a defect-free rulemaking process before making decisions 
on listing and critical habitat proposals due to the risks associated 
with noncompliance with judicially-imposed deadlines. This in turn 
fosters a second round of litigation in which those who fear adverse 
impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA); all are part of the cost of 
critical habitat designation. None of these costs result in any benefit 
to the species that is not already afforded by the protections of the 
Act enumerated earlier, and they directly reduce the funds available 
for direct and tangible conservation actions.

Background

    Astragalus lentiginosus Douglas ex Hook. var. piscinensis Barneby 
(Fish Slough milk-vetch), was described by Barneby (1977). The type 
specimen was collected from BLM Spring in the central portion of Fish 
Slough 8 miles (mi) (13 kilometers (km)) north of the town of Bishop, 
California. Spellenberg (1993) retained this variety in his treatment 
of Astragalus, which was published in the most recent edition of The 
Jepson Manual of Higher Plants of California. The genus Astragalus is 
in the pea family (Fabaceae).
    Astragalus lentiginosus var. piscinensis is a prostrate perennial, 
with few-branching stems that are up to 39 inches (in) (1 meter (m)) in 
length and covered with stiff, appressed hairs. Leaflets, flowers, and 
fruits are described in the final listing rule (63 FR 53596).
    The Service listed Astragalus lentiginosus var. piscinensis as 
threatened under the Act on October 6, 1998 (63 FR 53596). Please refer 
to our final listing rule for a more detailed discussion of the 
species' taxonomic history and description. A. l. var. piscinensis is 
not listed by the State of California as a rare, threatened, or 
endangered taxon, and is not a state candidate for listing as 
threatened or endangered.

Status and Distribution

    The entire known range of Astragalus lentiginosus var. piscinensis 
is restricted to a 6 mi (9.7 km) long area of alkaline habitat that 
parallels Fish Slough, a wetland oasis in Inyo and Mono Counties, 
California. Fish Slough is located in the northern end of the Owens 
Valley area, along the eastern edge of the Sierra Nevada Mountains in 
central California. The Fish Slough area is approximately 4,200 feet 
(ft) (1,280 m) in elevation. Alkaline habitat at Fish Slough is 
characterized by soil that has a sandy or silty texture and a white 
appearance. This alkaline habitat forms a ring around the seasonally 
and permanently flooded wetland habitat in the slough itself. The 
alkali flat and alkali scrub habitats in the Fish Slough ecosystem were 
mapped in 1991 (Ferren 1991a). Approximately 540 ac (219 ha) of 
alkaline habitat were present in Fish Slough when this mapping effort 
was completed. For reasons that are not precisely known, A. l. var. 
piscinensis does not inhabit the entire alkaline habitat present in 
Fish Slough (Ferren 1991a; Odion et al. 1991).
    A comparison of the distribution of alkaline habitat that exists in 
Fish Slough today with aerial photographs taken in 1950 suggests the 
geographic extent of alkaline habitat in Fish Slough has decreased over 
time (Anne Halford, Bureau of Land Management, pers. comm. 2004). There 
has not been an effort to precisely map the boundary of the alkaline 
areas in the photographs, but some of the areas that previously 
possessed alkaline soil would now be mapped as xeric uplands that would 
not be likely to support Astragalus lentiginosus var. piscinensis.
    In 1992, staff from the Los Angeles Department of Water and Power

[[Page 31554]]

(LADWP) and Bureau of Land Management (BLM) performed the first 
comprehensive survey to locate all of the Astragalus lentiginosus var. 
piscinensis in Fish Slough (Novak 1992). The survey documented 
approximately 3,200 widely-scattered individuals within a 530-ac (214-
ha) area. This survey also demonstrated that multiple sites that had 
been occupied by A. l. var. piscinensis in the 1980s and 1991 were 
larger in geographic extent than previously suspected. One site where 
six plants were documented in the 1980s and 1991 had no plants in 1992. 
Another site experienced a decline in the number of observed plants 
from 44 in 1983 to 8 in 1992. The areas where A. l. var. piscinensis 
occurred in 1992 were resurveyed in 2000, and it was determined that 
the overall number of mature plants declined from the 3,200 individuals 
in 1992 to 1,543 plants in 2000 (A. Halford, pers. comm. 2004). The 
2000 survey did not result in the discovery of any new, additional 
patches of A. l. var. piscinensis, and the overall distribution of the 
taxon in 2000 was similar to what was observed in 1992.
    Fish Slough can be divided into northern, central, and southern 
areas. Sixty percent of the known Astragalus lentiginosus var. 
piscinensis plants occur in the northern portion of the slough on land 
owned by the LADWP. In 1991, LADWP staff constructed an 80-ac (32-ha) 
cattle exclosure in the northern portion of Fish Slough; in 1992, over 
95 percent of the A. l. var. piscinensis plants documented in the 
northern portion of Fish Slough were within this exclosure. 
Approximately 35 percent of the known A. l. var. piscinensis plants 
occur in the central portion of the slough on lands owned and managed 
by the BLM or the LADWP. The remaining 5 percent of the known plants 
occur as scattered patches in the southern portion of the slough 
located north of the McNally Canal. This land is owned by the BLM or 
the LADWP. The area south of McNally Canal contains little habitat 
suitable for A. l. var. piscinensis (Novak 1992).
    Staff from the LADWP and the BLM collect population trend data for 
Astragalus lentiginosus var. piscinensis in five monitoring plots on 
land owned by the LADWP. Two monitoring plots are located in the 80-ac 
(32-ha) cattle exclosure, where grazing has not occurred since 1991. 
The other three monitoring plots are subject to grazing. One grazed 
plot is north of the cattle exclosure, and the other two are in the 
central portion of Fish Slough near BLM Spring. Monitoring of the five 
plots occurred annually between 1991 and 2002 (Paula Hubbard, LADWP, 
pers. comm. 2003; A. Halford, pers. comm. 2003), except for one plot 
near BLM Spring in 1995, and for the plot north of the cattle exclosure 
in 1996. When trend data were collected, there was an effort to 
quantify the number of seedlings, immature plants, and mature plants in 
each plot.
    Data collected from LADWP plots provide insight into how the 
abundance of Astragalus lentiginosus var. piscinensis has varied over 
time at specific sites. An average of 33 plants was present in ungrazed 
plot 1 between 1991 and 1996, but this declined by 61 percent to an 
average of 13 plants between 1997 and 2002. Similarly, in ungrazed plot 
2, an average of 104 plants was present between 1991 and 1996; this 
declined by 52 percent to an average of 50 plants between 1997 and 
2002. In the grazed plot north of the cattle exclosure (plot 3), an 
average of 41 plants was present between 1991 and 1996, while the 
average present between 1997 and 2002 was 48 (an increase of 17 
percent). In grazed plot 4, north of BLM Spring, an average of 15 
plants was present between 1991 and 1996; this number declined by 53 
percent to an average of 7 plants between 1997 and 2002. In grazed plot 
5, north of BLM Spring, an average of 7 plants were present in the plot 
between 1991 and 1996; this number declined by 86 percent to an average 
of 1 plant between 1997 and 2002. If data from all plots (i.e., grazed 
and ungrazed) are considered together, the average number of plants in 
the plots declined by approximately 41 percent between the two periods. 
The number of immature plants observed within a plot has exceeded the 
number of mature plants in that plot for only one plot (grazed plot 3) 
during the monitoring period, and this only occurred twice. The number 
of seedlings present in different plots has varied over time, with the 
greatest number of seedlings occurring in the northern portion of the 
slough in ungrazed plot 2 and grazed plot 3. The plant census data 
collected within and outside the cattle exclosure suggest that the 
decline in A. l. var. piscinensis within the monitoring plots may be 
caused by one or more factors that may not relate directly to grazing 
activities, and suggest that low numbers of cattle in an area may not 
necessarily have an adverse effect on A. l. var. piscinensis.
    Staff from the BLM also monitor changes in the abundance of 
Astragalus lentiginosus var. piscinensis at five plots established in 
1997 or 1998 on lands under their jurisdiction. Three of the plots are 
near the middle of Fish Slough. The number of A. l. var. piscinensis in 
two of these plots declined from 14 plants in 1997 to 3 plants in 2003, 
and from 47 plants in 1998 to 5 plants in 2003. At the third plot near 
the middle of Fish Slough, the number of plants has varied between 19 
and 22 individuals during a 7-year period. At the two plots near BLM 
Spring, the number of A. l. var. piscinensis has remained relatively 
constant between 1997 and 2003, with one plot having between 39 and 46 
individuals, and the other plot having between 6 and 8 plants. The only 
plot where a substantial number of young individuals were seen between 
1997 and 2003 was located near BLM spring.

Threats

    Previously identified threats to Astragalus lentiginosus var. 
piscinensis include the presence of roads, effects related to the use 
of motorized off-road vehicles, effects related to cattle grazing, and 
herbivory by native vertebrates and insects (USFWS 1998). A potential 
threat to A. l. var. piscinensis not previously identified in other 
documents includes competition with, or displacement by, non-native 
plant species (P. Hubbard, pers. comm. 2003). The modification of 
wetland habitats which results from ground water pumping or water 
diversion activities that alter the surface and underground hydrology 
of Fish Slough are also a threat to the taxon (USFWS 1998).
    The use of motorized off-road vehicles and the presence of roads 
have affected habitat occupied by Astragalus lentiginosus var. 
piscinensis. Approximately 19 mi (30.6 km) of roads exist within 3,280 
ft (1,000 m) of the alkaline habitats within Fish Slough. South of BLM 
Spring, on the east side of the slough, a road bisects one cluster of 
the listed plants, and off-road vehicle use in the central portion of 
the slough has been documented (Novak 1992). Soil compaction and 
topographic changes resulting from road presence and off-road vehicle 
activity can affect soil moisture regimes in Fish Slough, and 
potentially result in changes in seasonal inundation patterns that may 
adversely affect A. l. var. piscinensis.
    Roads through upland areas in Fish Slough also create increased 
levels of human visitation that would otherwise be unlikely if roads 
were absent. Roads have been associated with negative impacts that 
alter the biotic integrity of both terrestrial and aquatic habitats 
(Trombulak and Frissell 2000). A growing body of published literature 
indicates that vehicular traffic along road networks in terrestrial 
habitats increases the likelihood that non-native plant seeds will be 
introduced into areas

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where they were previously absent (Wace 1977; Schmidt 1989; Lonsdale 
and Lane 1994). Some of the non-native plant species in Fish Slough 
(e.g., five hook bassia (Bassia hyssopifolia)) are identified as pest 
plants of ecological concern (CalEPPC 1999) and have the potential to 
invade and degrade the quality of alkaline habitats and compete with 
Astragalus lentiginosus var. piscinensis.
    The BLM does not permit grazing on lands they administer in Fish 
Slough. With the exception of the 80-ac (32-ha) cattle exclosure in the 
northern portion of Fish Slough, lands under LADWP management that 
support Fish Slough milk-vetch are grazed (P. Hubbard, pers. comm. 
2003). The LADWP has not completed a management plan that provides 
specific prescriptions to guide grazing activities in Fish Slough. 
Currently, there are approximately 40 head of cattle and up to 8 horses 
in Fish Slough between late summer and March annually (P. Hubbard, 
pers. comm. 2003). The LADWP schedules grazing activities so cows are 
absent from the slough during the milk-vetch growing season.
    We believe that moderate to intense levels of cattle grazing in 
Fish Slough could result in a number of adverse effects. For example, 
the composition of the local plant community could be altered by 
reducing or eliminating species that cannot tolerate trampling and 
increasing the abundance of plant species that are tolerant to 
trampling. Other taxa that were not previously part of the native plant 
community may be introduced as a result of grazing activities (e.g., 
introduction of seeds of non-native species from supplemental feed that 
is not weed seed free). The regular presence of cattle in an area could 
result in the creation of cattle trails that are devoid of vegetation, 
and therefore reduce the amount of habitat that could be occupied by 
Astragalus lentiginosus var. piscinensis. Trampling by livestock can 
also reduce the number of burrows or other nesting sites available for 
bee pollinators (Sugden 1985), and actions that concentrate the 
presence of cattle in a particular location (e.g., placement of salt 
licks) may lead to an increased likelihood that individual A. l. var. 
piscinensis plants could be trampled.
    Native herbivores may exert a substantial effect on the 
reproductive output of individual Astragalus lentiginosus var. 
piscinensis plants. Infestations of root systems by phloem-sucking 
insects and high rates of rabbit herbivory have been reported for A. l. 
var. piscinensis individuals that were present in the central portion 
of Fish Slough (Mazer and Travers 1992). Ferren (1991a) observed rabbit 
feces adjacent to individuals that had been stripped of leaves, 
flowers, and seeds, and assumed these plants had been browsed or 
otherwise adversely affected by rabbits. Mazer and Travers (1992) found 
that plants in the central portion of Fish Slough experienced high 
herbivory levels when compared to plants in the northern portion of the 
slough. Some plants in the center of the slough had 80 percent of their 
branches grazed by rabbits or rodents, while in the northern portion of 
the slough fewer than 20 percent of the branches of some plants had 
been grazed. Herbivory of A. l. var. piscinensis by rodents and insects 
has also been noted during the aforementioned surveys of long-term 
monitoring plots (P. Hubbard, pers. comm. 2003). A large percentage of 
A. l. var. piscinensis seeds in Fish Slough may be perforated by holes 
that are created by weevils or wasps. In addition, gopher activity and 
ant colonies under previously live plants have been noted during 
monitoring activities. It is not known if herbivory of A. l. var. 
piscinensis plants is responsible for low recruitment levels of the 
listed plant taxon.
    Investigations into the condition and viability of Astragalus 
lentiginosus var. piscinensis seeds suggest that a large fraction of 
its viable seeds will germinate under laboratory conditions, but that a 
large proportion of seeds may be parasitized. Of the 2,901 seeds 
collected from 35 plants in Fish Slough on September 10, 2000, 1,039 
seeds (36 percent) were found to have been parasitized by one or more 
insect species (Wall 2001). The identity of the insects has not been 
determined, but may include a weevil (Joy Fatooh, BLM, in litt. 2003), 
or a wasp (Wall 2001). Parasitism of a seed is believed to always 
result in damage to the seed embryo (Joy Fatooh, BLM, in litt. 2002).
    The proliferation of non-native plant species in Fish Slough has 
the potential to adversely affect Astragalus lentiginosus var. 
piscinensis. Non-native salt cedar (Tamarix ramosissima), five hook 
bassia, Russian thistle (Salsola iberica), and pepperweed (Lepidium 
latifolium) would compete with A. l. var. piscinensis for available 
space, nutrients, and water if the different species had overlapping 
distributions. The presence of pepperweed in Fish Slough is especially 
problematic since that species is able to colonize and rapidly spread 
into a variety of habitat types, including alkaline areas where A. l. 
var. piscinensis is present (P. Hubbard, pers. comm. 2003). Currently, 
dense concentrations of non-native plant species are not found with A. 
l. var. piscinensis. Recognizing that non-native competition could be a 
problem, LADWP, BLM, and California Department of Fish and Game (CDFG) 
staff systematically work to control the spread of non-native plant 
species in Fish Slough.
    Natural changes in, or human-induced modifications of, aquatic 
habitat in Fish Slough may reduce the number of Astragalus lentiginosus 
var. piscinensis. A long-term threat to the milk-vetch may include the 
expansion of Fish Slough Lake. The increased size of the lake may be 
due to natural geologic processes (e.g., earthquakes), or human-caused 
actions (e.g., the construction of Red Willow Dam, a small earthen 
berm). Expansion of Fish Slough Lake from natural processes or human-
caused actions has resulted in increased soil inundation, expansion in 
the distribution of emergent wetland vegetation, and loss of suitable 
alkaline habitat for Fish Slough milk-vetch (Ferren 1991c). Beavers 
(Castor canadensis) have been observed in Fish Slough Lake and the 
Northwest Springs area, and their presence sometimes results in changes 
in local soil moisture conditions as they construct ponds. The 
construction of a beaver dam near one of the aforementioned long-term 
monitoring plots on land owned by the LADWP (ungrazed plot 1) appears 
to coincide with decreases in the number of A. l. var. piscinensis 
plants that were counted (P. Hubbard, pers. comm. 2004).
    The creation of earthen dams, fish barriers, and weirs that 
facilitate water flow measurements has also likely affected Astragalus 
lentiginosus var. piscinensis. The dams and fish barriers have been 
built for a variety of purposes, including habitat enhancement for 
waterfowl, creation of sport fish habitat, and management activities 
that were designed to benefit native fish. These activities have also 
altered the slough hydrology by increasing the size of permanently 
flooded habitats, modifying surface water drainage patterns, and 
increasing the length of time that A. l. var. piscinensis habitat is 
inundated or subject to elevated soil moisture conditions. Each of 
these effects creates conditions that are less suitable or unsuitable 
for A. l. var. piscinensis. No new dams have been built in Fish Slough 
since 1980. Staff from the BLM and CDFG have removed two dams and are 
analyzing the potential to remove Red Willow Dam, now the single 
largest water control structure remaining in Fish Slough.

[[Page 31556]]

    Water diversion activities associated with mining operations may 
also affect the hydrology near the southern end of Fish Slough. The 
Desert Aggregate Mine is situated near the southernmost portion of Fish 
Slough on lands owned by the LADWP and is 0.75 mi (1.2 km) south of the 
southernmost known occurrence of Astragalus lentiginosus var. 
piscinensis. The mine was specifically developed at a site with coarse, 
permeable gravels and the transmissivity (a measure of the ease at 
which ground water can move through the aquifer) of the area around the 
mine is relatively high (Danskin 1998). Ground water pumping activities 
at pits at the mine in 1986 or 1987 adversely affected riparian 
vegetation to the extent that large areas of vegetation south and down-
gradient of the mine and Fish Slough died as water tables declined (P. 
Hubbard, pers. comm. 2003; Sally Manning, County of Inyo, pers. comm. 
2003). The effect of ground water pumping on alkaline habitats around 
the mine was not documented and so it is unknown if alkaline habitats 
near the mine were also adversely affected. Mining activities nearest 
to Fish Slough have been completed.
    Three major spring areas are present in Fish Slough. Northeast 
Spring and Northwest Springs are located in the northern portion of the 
slough, and BLM Spring is present in the east-central portion of the 
slough. Staff from the LADWP has quantified the amount of water passing 
through Fish Slough for several decades. The volume of water moving 
through Fish Slough at one monitoring site declined from 148-152 cubic 
feet per second (cfs) (4,191-4,304 liters per second (lps)) in the 
early 1920s to 84-96 cfs (2,379-2,718 lps) in the early 1960s. This 
reduction in water flow is larger than the annual variability in water 
volume that can be accounted for by seasonal variation in evaporative 
losses and transpiration by local phreatophytes (Pinter and Keller 
1991). The cause for the decrease in water flow through the slough 
between the 1920s and the 1960s has not been conclusively identified, 
but may be related to increased ground water pumping in the Chalfant 
Valley 2 mi (3.2 km) northeast of Fish Slough (Pinter and Keller 1991; 
MHA 2001).
    Analysis of water table levels in a number of wells in Chalfant and 
Hammil valleys east or northeast of Fish Slough confirms that there is 
an incremental decrease in the potentiometric surface (i.e., height of 
the water table) between these valleys and Fish Slough. This decrease 
suggests that ground water is moving down gradient from Chalfant and 
Hammil valleys to the Fish Slough area (MHA 2001).
    The Tri-Valley Groundwater Management District (District) in Mono 
County was established in 1989, in part, to review and approve 
proposals to export water from the District. The District includes 
Chalfant, Hammil, and Benton valleys. California landowners may extract 
as much ground water as they can put to beneficial use, and no permit 
is required to pump ground water (DWR 1996). Between 1999 and 2001, the 
District considered a proposal by United States Filter Water Resources, 
Inc. to pump and export 13,700 acre-feet (16.9 billion liters) of 
ground water per year (MHA 2001). If the project had been approved as 
initially proposed, captured water would have been conveyed in a closed 
pipe and diverted to a location south and down-gradient of Fish Slough. 
The project was ultimately abandoned, in part, because of environmental 
concerns for Fish Slough. The District will continue to consider 
applications to export water, however, as projects to do so are 
proposed.
    Lack of recruitment is a potential threat to Astragalus 
lentiginosus var. piscinensis. Staff from the BLM and the LADWP has 
monitored this taxon from 1992 to 2002, observing that only a few young 
plants matured and persisted during that time (A. Halford, pers. comm. 
2003; P. Hubbard, pers. comm. 2003). Two possible explanations for the 
lack of recruitment are high rabbit/rodent herbivory of seedlings and 
changes in soil hydrology or chemistry that make the habitat less 
suitable for seed germination and plant growth.

Previous Federal Action

    On October 6, 1998, the Service published a final rule in the 
Federal Register (63 FR 53596), which determined endangered status for 
three plant taxa and threatened status for two plant taxa, including 
Astragalus lentiginosus var. piscinensis. Please refer to the final 
rule listing the taxon for information on previous Federal actions 
prior to October 6, 1998. In the final rule listing A. l. var. 
piscinensis, the Service determined that endangered status for this 
taxon was not warranted because a significant portion of the listed 
plant occurrences in northern Fish Slough were protected by a cattle 
exclosure, thereby reducing threats from grazing and trampling. In 
addition, the land where the taxon occurred was receiving specific 
management consideration at the time the final rule was published due 
to its inclusion in a special management unit administered by the BLM. 
The Service determined that, while this taxon may not have been in 
immediate danger of extinction, it was likely to become endangered in 
the foreseeable future throughout all or a significant portion of its 
range, and listing as threatened was warranted.
    At the time Astragalus lentiginosus var. pinscinensis was listed, 
we determined that designation of critical habitat was not prudent 
because the potential benefits were outweighed by the potential 
negative effects of designating critical habitat. We believed that 
designation of critical habitat could result in increased threats of 
illegal collection and vandalism and the designation would not compel 
or require a private or other non-Federal landowner to undertake active 
management for the taxon or to modify proposed project activities in 
the absence of a Federal nexus.
    On November 15, 2001, the Center for Biological Diversity and the 
California Native Plant Society filed a lawsuit in the U.S. District 
Court for the Southern District of California challenging our 
determination not to designate critical habitat for eight desert 
plants, including Astragalus lentiginosus var. pinscinensis (Center for 
Biological Diversity et al. v. Norton, No. 01 CV 2101). On July 1, 
2002, the Court ordered the Service to reconsider its not prudent 
determination and propose critical habitat, if prudent, for A. l. var. 
pinscinensis on or before November 15, 2003. On September 9, 2003, the 
court issued a subsequent order that required the Service to publish a 
proposed critical habitat designation for A. l. var. pinscinensis by 
June 1, 2004.
    We have reconsidered our evaluation of the threats posed by 
vandalism in the not prudent determination, and now determine that the 
threats to Astragalus lentiginosus var. pinscinensis from specific 
instances of vandalism are limited, if not speculative. Accordingly, we 
withdraw our previous determination that the designation of critical 
habitat is not prudent for A. l. var. pinscinensis and determine that 
the designation of critical habitat is prudent. At this time, we have 
sufficient information necessary to identify specific areas as 
essential to the conservation of this plant taxon and are therefore 
proposing critical habitat (see ``Methods'' section below for a 
discussion of information used in our reevaluation).

Critical Habitat

    Section 3(5)(A) of the Act defines critical habitat as--(i) the 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are

[[Page 31557]]

found those physical or biological features (I) essential to the 
conservation of the species and (II) that may require special 
management considerations or protection; and (ii) specific areas 
outside the geographic area occupied by a species at the time it is 
listed, upon a determination that such areas are essential for the 
conservation of the species. ``Conservation'' means the use of all 
methods and procedures that are necessary to bring an endangered or a 
threatened species to the point at which listing under the Act is no 
longer necessary.
    The designation of critical habitat does not affect land ownership 
or establish a refuge, wilderness, reserve, preserve, or other 
conservation area. It does not allow government or public access to 
private lands. Under section 7 of the Act, Federal agencies must 
consult with us on activities they undertake, fund, or permit that may 
affect critical habitat and lead to its destruction or adverse 
modification. However, the Act prohibits unauthorized take of listed 
species and requires consultation for activities that may affect them, 
including habitat alterations, regardless of whether critical habitat 
has been designated. We have found that the designation of critical 
habitat provides little additional protection to most listed species.
    To be included in a critical habitat designation, habitat must be 
either a specific area within the geographic area occupied by the 
species on which are found those physical or biological features 
essential to the conservation of the species (primary constituent 
elements, as defined at 50 CFR 424.12(b)) and which may require special 
management considerations or protection, or be specific areas outside 
of the geographic area occupied by the species which are determined to 
be essential to the conservation of the species. Section 3(5)(C) of the 
Act states that not all areas that can be occupied by a species should 
be designated as critical habitat unless the Secretary determines that 
all such areas are essential to the conservation of the species. Our 
regulations (50 CFR 424.12(e)) also state that, ``The Secretary shall 
designate as critical habitat areas outside the geographic area 
presently occupied by the species only when a designation limited to 
its present range would be inadequate to ensure the conservation of the 
species.''
    Regulations at 50 CFR 424.02(j) defines special management 
considerations or protection to mean any methods or procedures useful 
in protecting the physical and biological features of the environment 
for the conservation of listed species. When we designate critical 
habitat, we may not have the information necessary to identify all 
areas which are essential for the conservation of the species. 
Nevertheless, we are required to designate those areas we consider to 
be essential, using the best information available to us. Accordingly, 
we do not designate critical habitat in areas outside the geographic 
area occupied by the species unless the best available scientific and 
commercial data demonstrate that unoccupied areas are essential for the 
conservation needs of the species.
    Section 4(b)(2) of the Act requires that we take into consideration 
the economic impacts, the effect on national security, and any other 
relevant impact, of specifying any particular area as critical habitat. 
We may exclude areas from critical habitat designation when the 
benefits of exclusion outweigh the benefits of including the areas 
within critical habitat, provided the exclusion will not result in 
extinction of the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
provides criteria, establishes procedures, and provides guidance to 
ensure that our decisions represent the best scientific and commercial 
data available. It requires our biologists, to the extent consistent 
with the Act and with the use of the best scientific and commercial 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information should be the listing package for the species. Additional 
information may be obtained from a recovery plan, articles in peer-
reviewed journals, conservation plans developed by States and counties, 
scientific status surveys and studies, biological assessments, or other 
unpublished materials and expert opinion or personal knowledge.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of what we know at the time of designation. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by the section 4(b)(2) of Act and regulations at 50 CFR 
424.12, we used the best scientific information available to determine 
areas that contain the physical and biological features that are 
essential for the conservation of Astragalus lentiginosus var. 
piscinensis, and that may require special management considerations or 
protection. This includes information from our own documents, including 
the data from the final rule listing the taxon as threatened (66 FR 
27901), recent biological surveys, reports and aerial photos, 
documentation provided by staff from the BLM and the LADWP, and 
discussions with botanical and hydrologic experts. We also conducted 
two site visits to Fish Slough, and met with staff from the BLM, the 
LADWP, and CDFG to solicit their views on various management aspects 
involving A. l. var. piscinensis.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we consider those physical and biological features (primary 
constituent elements) that are essential to the conservation of the 
species and that may require special management considerations or 
protection. These include, but are not limited to: Space for individual 
and population growth, and for normal behavior; food, water, air, 
light, minerals or other nutritional or physiological requirements; 
cover or shelter; sites for reproduction, germination, or seed 
dispersal; and habitats that are protected from disturbance or are 
representative of the

[[Page 31558]]

known historic, geographic, and ecological distributions of a species.
    The proposed critical habitat unit has been delineated to provide 
sufficient habitat to maintain a self-sustaining population of 
Astragalus lentiginosus var. piscinensis in Fish Slough and includes 
those habitat components essential for the conservation of the taxon. 
These habitat components provide for: (1) Individual and population 
growth, including sites for germination, pollination, reproduction, 
pollen and seed dispersal, and seed dormancy; (2) areas that allow gene 
flow and provide connectivity or linkage between different locations 
within Fish Slough; and (3) areas that provide basic requirements for 
growth, such as water, light, and minerals.
    The presence of water is essential to the development and 
maintenance of alkaline soils and habitat upon which Astragalus 
lentiginosus var. piscinensis depends. The alkaline soils in Fish 
Slough where alkali flat, alkali scrub, and meadow habitats occur are 
generally classified as aquic torriorthents-aquent complex with 0-2 
percent slope. These alkaline soils develop as mineral-rich, shallow 
ground water rises under capillary action to the surface by the high 
evaporation rates which prevail in the Fish Slough area. As this water 
evaporates at the soil surface, its solute load precipitates, creating 
a veneer of white salts and minerals. The alkaline habitat that A. l. 
var. piscinensis occupies is likely to have a water table that 
fluctuates between 19-60 in (0.5-1.5 m) below the land surface (Odion 
et al. 1991). In areas where water tables are more 2 m (6.6 ft) deep, 
capillary action is insufficient to promote and maintain the 
development of alkaline soils (Odion et al. 1991).
    Between May 1999 and October 2001, a variety of in situ and 
experimental studies were conducted to evaluate the relationship 
between photosynthetic rates, growth rates, fecundity, and survivorship 
of Astragalus lentiginosus var. piscinensis as depth to a water table 
varied (Murray and Sala, 2003). Data from these studies suggest that 
elevated water tables are likely to adversely affect these variables if 
local water tables are less than 35-40 cm (13.8-15.7 in) below the land 
surface. Therefore, water tables that rise too close to the land 
surface and the root zone of A. l. var. piscinensis may be detrimental 
to individual plants that are subjected to saturated soils for a 
prolonged period of time.
    Fish Slough is a wetland in an otherwise arid landscape. The 
average annual rainfall in the town of Bishop is 5.0 in (12.7 
centimeters (cm)). The average annual evapo-transpiration rates in 
alkaline meadows or alkaline scrub habitats in the greater Owens Valley 
area which are most similar to the habitat type occupied by Astragalus 
lentiginosus var. piscinensis range between 18.5-40.5 in (47.0-102.9 
cm) and 15.2-23.6 in (38.6-59.9 cm), respectively (Danskin 1998). 
Because the low annual rainfall and high annual evapo-transpiration 
rates in the Bishop area create an arid environment, it is essential 
that a substantial and sustained amount of surface and ground water 
exists to maintain the wetland and riparian habitats that are present 
in Fish Slough.
    The sources of the water that discharge from springs in Fish Slough 
have not yet been conclusively identified. Available data indicate that 
Fish Slough water is derived from the Casa Diablo Mountain area (BLM 
1984; MHA 2001), the Tri-Valley area, or a combination of the two areas 
(MHA 2001). The Casa Diablo Mountain area reaches a maximum elevation 
of 7,913 ft (2,412 m) and is located 9.5 mi (15.3 km) northwest of Fish 
Slough. The area between Fish Slough and Casa Diablo Mountain is 
locally referred to as the Volcanic Tableland. The geology of the 
Volcanic Tableland predominantly consists of the Bishop Tuff, which has 
a welded ash and tuff surface veneer. Underneath the surface veneer, a 
thicker, more permeable layer is present in the Volcanic Tableland. The 
lower unit of the tuff is extensively fractured and faulted, and some 
areas are more permeable than wind-blown sand (DWR 1964). These 
fractures act as conduits that convey ground water from higher 
elevation areas with greater levels of precipitation to the lower 
elevation Fish Slough area where low amounts of precipitation 
predominate. The Tri-Valley area is bounded on the east by the White 
Mountains, which reach an elevation of up to 14,245 ft (4,342 m), and 
to the west by a ridge that separates it from Fish Slough. This ridge 
is less than 280 ft (85 m) higher than the valley floor. The high 
elevation of the White Mountains promotes the deposition of 
precipitation. This water then percolates into alluvial fans at the 
base of the mountains, and ultimately enters the coarse alluvium that 
is present on the floors of Benton, Hammil, and Chalfant valleys. 
Because the surface elevation decreases from Benton Valley in the north 
to Chalfant Valley in the south, and because Fish Slough is lower in 
elevation than all three of these valleys, ground water tends to move 
in a southerly or southwesterly direction toward Fish Slough or toward 
Chalfant Valley east of Fish Slough. A number of fault lines are 
present in the Fish Slough and Volcanic Tableland area (MHA 2001) and 
these features likely affect the presence, distribution, and volume of 
ground water present in the local area (Andy Zdon, MHA Environmental 
Consulting, Inc., pers. comm. 2004).
    The alkaline flats where Astragalus lentiginosus var. piscinensis 
occurs are typically dominated by a Spartina--Sporobolis (cordgrass--
dropseed) plant association. A. l. var. piscinensis may also occur 
where a sparse amount of Chrysothamnus albidus (rabbit-brush) exists in 
the transition zone between Spartina--Sporobolis and Chrysothamnus 
albidus--Distichlis (rabbit-brush--saltgrass) plant associations. 
Sawyer and Keeler-Wolf (1995) classify the alkaline habitats where A. 
l. var. piscinensis occurs as a cordgrass series or saltgrass series. 
Astragalus lentiginosus var. piscinensis is frequently sympatric with 
Ivesia kingii (alkali ivesia). The higher elevation areas where A. l. 
var. piscinensis is absent consist of dry shadscale scrub communities 
that are dominated by various species of Atriplex spp. (saltbush).
    Distribution of many alkaline-tolerant plant species is largely 
determined by a combination of environmental factors, predominantly 
soil moisture and salinity. These two factors in combination may affect 
the physiology of adult and immature plants, seed germination, and 
seedling survival. Mazer and Travers (1992) suggest that seed 
germination and successful establishment of Astragalus lentiginosus 
var. piscinensis seedlings are infrequent events, and that sufficient 
rainfall is necessary to promote seed germination and survivorship of 
young plants. The suite of environmental factors that determine where 
Astragalus lentiginosus var. piscinensis occurs is also likely to 
determine the composition of the broader plant community of which A. l. 
var. piscinensis is a part. Changes in soil moisture and salinity are 
likely to influence not only the abundance and presence of A. l. var. 
piscinensis but also to affect the persistence and character of the 
Spartina--Sporobolis plant association in which A. l. var. piscinensis 
occurs.
    Upland areas adjacent to the alkaline habitat where Astragalus 
lentiginosus var. piscinensis currently exists are also important 
because some of these areas historically possessed alkaline habitat 
that no longer exists. The long-term success of the conservation of 
Astragalus lentiginosus var. piscinensis may depend upon efforts to 
restore the extent and character of the alkaline

[[Page 31559]]

habitat that historically existed. Inclusion of currently unoccupied 
upland habitat within the proposed critical habitat unit will therefore 
include the areas that are necessary to promote the conservation of the 
listed plant taxon. This need is identified in the recovery plan for 
the taxon (Owens Basin Wetland and Aquatic Species Recovery Plan Inyo 
and Mono Counties, California (USFWS 1998)).
    Mazer and Travers (1992) examined various aspects that relate to 
the pollination ecology of Astragalus lentiginosus var. piscinensis. 
They found that A. l. var. piscinensis is dependant on insects for 
flower pollination and fertilization and the taxon is not capable of 
producing fruits in the absence of pollinators. Bumblebees (Bombus 
spp.) in the family Apidae were observed to pollinate A. l. var. 
piscinensis flowers on three occasions. Bees in the family Megachilidae 
are believed to be important pollinator insects for Astragalus 
brauntonii (Fotheringham and Keeley 1998), and various bee taxa in this 
family may occur in and adjacent to Fish Slough. With other milk-vetch 
species such as A. cibarius and A. utahensis, large bees in the 
families Anthophoridae and Apidae carry large pollen loads from plant 
to plant, while a variety of smaller beetle and fly species carry 
smaller pollen loads. These smaller insects are, therefore, likely to 
have a smaller potential for pollinating Astragalus plants (Green and 
Bohart 1975). Unless a specific endemic bee species is responsible for 
flower pollination, it is possible that multiple bee species pollinate 
the flowers of A. l. var. piscinensis (Terry Griswold, Utah State 
University, pers. comm. 2003).
    Studies to quantify the distance that bees will fly to pollinate 
their host plants are limited in number, but the few that exist show 
that some bees will routinely fly 100 to 500 m (328 to 984 ft) to 
pollinate plants. Studies by Steffan-Dewenter and Tscharntke (2000) 
have demonstrated that it is possible for bees to fly at least 1,000 m 
(3,280 ft) to pollinate flowers, and at least one study suggests that 
bumblebees may forage many kilometers from a colony (Sudgen 1985). 
Studies by Steffan-Dewenter and Tscharntke (2000) also indicate that if 
pollinator habitat within 1,000 m of some host plants is eliminated, 
seed set of some plant species may be decreased by as much as 50 
percent. Additional studies suggest that the degradation of pollinator 
habitat is likely to adversely affect the abundance of pollinator 
species (Jennersten 1988; Rathcke and Jules 1993).
    Bumblebees usually nest in abandoned rodent burrows or bird nests 
(Thorpe et al. 1980), and bees in the family Megachilidae also nest in 
underground rodent burrows or in dry woody material. The alkaline 
nature of the habitat occupied by Astragalus lentiginosus var. 
piscinensis makes it unlikely that burrowing rodents are present in 
such areas. We believe insect pollinators are more likely to nest in 
upland habitats adjacent to alkaline areas because nesting and cover 
sites for various species of mice, kangaroo rats, and pocket mice are 
more likely to be common there (T. Griswold, pers. comm. 2003).
    The upland areas adjacent to occurrences of Astragalus lentiginosus 
var. piscinensis are likely to include cover and nest sites for a 
variety of insects necessary for the pollination of this taxon. Surveys 
have not been conducted to specifically identify which species are 
responsible for the fertilization of A. l. var. piscinensis flowers 
but, at a minimum, they likely include a variety of ground-nesting bee 
taxa. Studies have demonstrated that it is possible for bees to fly 
1,000 m (3,280 ft) or more to pollinate flowers. The bees that have 
been observed on A. l. var. piscinensis include taxa that routinely 
nest in underground burrows. We believe that rodent burrows are less 
likely to be common in alkaline habitats and so we have concluded that 
the bee pollinators that visit A. l. var. piscinensis are more likely 
to use rodent burrows in upland shrub scrub plant communities within 
100-1,000 m (328-3,280 ft) of the alkaline habitat occupied by the 
listed plant taxon.
    The maintenance of natural conditions in upland areas adjacent to 
the alkaline habitat where Astragalus lentiginosus var. piscinensis 
occurs is important because the presence of roads and use of motorized 
vehicles have a substantial potential to introduce non-native plant 
species. These upland areas may act as reservoirs for invasive plant 
species and facilitate their invasion into the more mesic habitat 
occupied by Fish Slough milk-vetch. Some species such as Lepidium 
latifolium and Salsola iberica can survive in soils that vary in 
texture and moisture. Proactive management of upland habitats at Fish 
Slough is necessary to preclude the establishment of invasive non-
native plant species that could displace A. l. var. piscinensis and 
that such control should not be limited to the areas immediately 
adjacent to alkaline habitats.
    The area we are proposing to designate as critical habitat provides 
some or all of the habitat components and the physical and hydrologic 
attributes that are essential for the conservation of Astragalus 
lentiginosus var. piscinensis. Based on the best available information 
at this time, the primary constituent elements of critical habitat for 
A. l. var. piscinensis include, but are not limited to:
    (1) Alkaline soils that occur in areas with little or no slope, and 
which overlay a ground water table that is 19-60 in (0.5-1.5 m) below 
the land surface;
    (2) Plant associations dominated by Spartina--Sporobolis, or where 
a sparse amount of Chrysothamnus albidus occurs in the transition zone 
between Spartina--Sporobolis and Chrysothamnus albidus--Distichlis 
plant associations;
    (3) Upland areas within 1,000 m (3,280 ft) of the alkaline soils 
described in (1), that support sites where the listed plant's 
pollinator populations are likely to nest or obtain cover, that require 
minimal disturbance and active management to limit the establishment of 
non-native plant taxa, and portions of which may be suitable for 
restoration and recolonization by Astragalus lentiginosus var. 
piscinensis; and
    (4) Hydrologic conditions that provide suitable periods of soil 
moisture and chemistry for Astragalus lentiginosus var. piscinensis 
germination, growth, reproduction, and dispersal.
    All of the primary constituent elements outlined above do not have 
to occur simultaneously within the unit to constitute critical habitat 
for Astragalus lentiginosus var. piscinensis. We determined the primary 
constituent elements of critical habitat for A. l. var. piscinensis 
based on the best available scientific and commercial information, 
including professional studies and reports that pertain to its habitat 
and ecology and the hydrological conditions that are relevant to the 
quality of habitat in Fish Slough. These documents include, but are not 
limited to, BLM (1984); Odion et al. (1991); Ferren (1991a); Mazer and 
Travers (1992); Danskin (1998); and MHA (2001).

Criteria Used To Identify Critical Habitat

    The criteria that have been used to identify the proposed critical 
habitat unit for Astragalus lentiginosus var. piscinensis include the 
known range of the taxon, the alkaline habitat where the taxon and its 
associated flora occurs, the upland areas within 1,000 m (3,280 ft) of 
the alkaline soils that are occupied by the taxon, and the hydrologic 
features that are essential to promote the survival and persistence of 
the taxon.

[[Page 31560]]

    A number of botanical surveys have been completed in most of the 
alkaline habitats in the greater Owens Valley area and Astragalus 
lentiginosus var. piscinensis has not been found outside of Fish Slough 
(P. Hubbard, pers. comm. 2003). Mary DeDecker, the botanist who 
collected the type specimen of A. l. var. piscinensis, traveled 
extensively throughout the greater Owens Valley area and Inyo and Mono 
Counties collecting botanical specimens for her herbarium collection. 
Because her collection does not contain specimens of A. l. var. 
piscinensis collected outside of Fish Slough (Michael Denslow, Rancho 
Santa Ana Botanic Garden, pers. comm. 2004), it is unlikely that Fish 
Slough milk-vetch occurs outside of that area surrounding the Fish 
Slough oasis. Considering this, we conclude that the geographic range 
of A. l. var. piscinensis is limited to those disjunct occurrences 
within a 6 mi (9.7 km) stretch of alkaline habitat that borders aquatic 
habitat in Fish Slough in Inyo and Mono Counties, California. Because 
the taxon occurs within a relatively limited area and the alkaline 
habitat within the taxon's range forms a relatively continuous feature 
in the landscape, we are proposing a single critical habitat unit which 
is not separated into smaller, separate units. The critical habitat 
unit being proposed for A. l. var. piscinensis includes virtually all 
of the known locations of the taxon.
    According to a recovery plan that includes Astragalus lentiginosus 
var. piscinensis (USFWS 1998), all remaining habitat of the taxon needs 
to be conserved. Virtually the entire geographic area which currently 
is and potentially can be occupied by the taxon is being proposed as 
critical habitat. This is being done because these areas are all 
considered essential to the conservation of the species, in accordance 
with Section 3(5)(C) of the Act. We have determined, however, that one 
privately-owned, 49-acre (20-ha) parcel within the historic range of A. 
l. var. piscinensis is not essential for its conservation. That parcel 
is in Township 6 South, Range 33 East, section 18 of U.S. Geological 
Survey quadrangle map titled Fish Slough. It is highly unlikely that 
this area is currently occupied by the taxon and it has little alkaline 
soil habitat. In addition, there is no chance that the taxon will be 
re-introduced on this property. Therefore, the parcel is not essential 
to conservation of the taxon, and is not included in the proposed 
critical habitat.
    The critical habitat units are designed to encompass a large enough 
area to support existing ecological processes that may be essential to 
the conservation of Astragalus lentiginosus var. piscinensis. Some 
upland areas adjacent to the alkaline habitat where A. l. var. 
piscinensis occurs could potentially be restored to allow the taxon to 
re-occupy historically-occupied areas. Upland areas within 1,000 meters 
of the alkaline habitat also provide nest sites and cover for 
pollinators, and are important to help minimize the potential to 
introduce new non-native plant species that may adversely affect A. l. 
var. piscinensis and to control non-native plant species already 
present. Because these areas are essential for conservation of the 
taxon, we have included them in the proposed critical habitat unit in 
accordance with section 3(5)(A)(ii) of the Act.
    Determining the geographic boundary of the critical habitat unit 
for Astragalus lentiginosus var. piscinensis would be relatively 
straightforward if the unit boundary was based only on the presence of 
alkaline soils, the Spartina--Sporobolis plant association where Fish 
Slough milk-vetch is found, and an upland zone inhabited by the plant's 
pollinators. We believe, however, that the long-term maintenance and 
recovery of A. l. var. piscinensis is ultimately dependent on the 
maintenance of the hydrologic system that promotes the development and 
persistence of the alkaline soils and plant communities that A. l. var. 
piscinensis is associated with. We believe that adverse changes in the 
hydrology of Fish Slough would reduce or eliminate those physical 
features essential for the conservation of the taxon.
    Delineating a critical habitat unit for Astragalus lentiginosus 
var. piscinensis that includes the hydrologic system that supports this 
taxon poses significant challenges because the source(s) of the water 
that issues from the springs in Fish Slough is not precisely known and 
the location of the ground water flow paths between these sources and 
the spring orifices in Fish Slough have not yet been determined. Our 
current understanding of how pumping activities in Chalfant and Hammil 
valleys affects spring discharge rates or the local aquifer in Fish 
Slough is not sufficient to clearly illustrate these cause and effect 
relationships.
    Because we believe the protection of the hydrologic conditions that 
supports the formation and maintenance of alkaline soils is essential 
to conserve occupied and suitable unoccupied habitat for Astragalus 
lentiginosus var. piscinensis, we have identified these hydrologic 
conditions as a primary constituent element in the ``Primary 
Constituent Element'' section of this proposed rule even though they 
may depend upon sources outside the proposed critical habitat unit 
boundary.

Delineating Critical Habitat

    To delineate the critical habitat unit for Fish Slough milk-vetch, 
we used a computerized Geographic Information System to overlay various 
themes that included the known occurrences of Astragalus lentiginosus 
var. piscinensis and the primary constituent elements (see Primary 
Constituent Element section above). To map the distribution of A. l. 
var. piscinensis, we used information in the California Department of 
Fish and Game's Natural Diversity Database (CNDDB 2004) and plant 
distribution data from Novak (1992). These two information sources 
provide a comparable assessment of the locations of A. l. var. 
piscinensis.
    The upland boundaries of alkaline soils in Fish Slough as depicted 
in Ferren (1991a) were then digitized. We digitized the boundaries of 
aquatic habitats and meadows mapped in this Ferren (1991a) and included 
these within the boundary of the proposed critical habitat unit. These 
two habitats do not provide suitable habitat for Astragalus 
lentiginosus var. piscinensis; however, they are included within the 
proposed unit because the precise boundaries of alkaline habitat in 
Fish Slough vary on an annual basis, and small-scale conversions of 
wetland habitat to alkaline flat habitat are likely to occur from time 
to time. In addition, as this ecosystem is dynamic, we believe that 
areas of alkaline soils may convert to wetland habitat. The mapped 
boundary based on alkaline soils also corresponds closely with the 
distribution of the Spartina--Sporobolis and Chrysothamnus albidus--
Distichlis plant associations which are associated with A. l. var. 
piscinensis. The alkaline habitat occupied by A. l. var. piscinensis is 
a visually obvious feature of Fish Slough. It is present at elevations 
above the low-lying flooded aquatic habitat in Fish Slough and below 
the elevated and drier areas dominated by coarse alluvial soils lacking 
a white alkaline appearance. The alkaline habitat occupied by the taxon 
is dominated by a Spartina--Sporobolis plant association (Odion et al. 
1991); the taxon may also occur where a sparse amount of Chrysothamnus 
albidus occurs in the transition zone between Spartina--Sporobolis and 
Chrysothamnus albidus--Distichlis plant associations. Collectively, 
these plant associations form the plant community of which A. l. var. 
piscinensis is a part, and are therefore

[[Page 31561]]

included in the proposed critical habitat unit in this rule. The higher 
elevation areas where A. l. var. piscinensis is absent consist of dry 
shadscale scrub communities that are dominated by various species of 
Atriplex spp. (saltbush).
    Because we have concluded that upland area within 1,000 m (3,280 
ft) of the alkaline habitats occupied by Astragalus lentiginosus var. 
piscinensis is essential for the taxon's conservation, we delineated a 
boundary that includes this distance as measured from the outer edge of 
the area that includes occurrences of A. l. var. piscinensis, alkaline 
soils, and the Spartina--Sporobolis plant association or transition 
zone between Spartina--Sporobolis and Chrysothamnus albidus--Distichlis 
plant associations. This boundary delineates the perimeter of the 
proposed critical habitat unit.
    To provide a legal description of the critical habitat boundary, a 
final modification to the boundary described in the proceeding 
paragraphs was made. The proposed critical habitat unit boundary 
conforms to a Universal Transverse Mercator (UTM) North American Datum 
1927 (NAD 27) coordinate system grid with a cell size of 100 m by 100 
m. For the modification, those points which define the boundaries of 
our initial polygon were moved to an adjacent point lying on the UTM 
grid of 100-meter cells. Defining critical habitat boundaries to be 
coincident with points on a UTM grid is consistent with current 
practice and is intended to simplify interpretation of the coordinates 
while diminishing the number of coordinates necessary to define a 
boundary.
    This proposed unit thus includes the following: Locations where 
pollinators are most likely to nest or obtain cover; some, but not all, 
of the surface and subsurface hydrologic features that are necessary to 
maintain the soils that are necessary for Astragalus lentiginosus var. 
piscinensis germination, growth, reproduction, and dispersal; an area 
where the successful exclusion of non-native plant species must take 
place in order to safeguard the status of the taxon; the plant 
communities that are associated with A. l. var. piscinensis; locations 
where the current normal year-to-year variations in surface water are 
likely to create new alkaline habitat; and the locations where the 
taxon occurred historically and could possibly be restored with active 
management. The critical habitat unit proposed constitutes our best 
assessment of that area essential to the conservation of A. l. var. 
piscinensis.
    Manmade features within the boundaries of the mapped unit, such as 
buildings, roads, parking lots, and other paved areas, do not contain 
any of the primary constituent elements for Astragalus lentiginosus 
var. piscinensis. Federal actions limited to these areas, therefore, 
would not trigger a section 7 consultation, unless they affect the 
taxon and/or its primary constituent elements in adjacent critical 
habitat. In proposing to designate critical habitat, we made an effort 
to avoid the inclusion of such features in proposed critical habitat; 
however, critical habitat is not mapped in sufficient detail to exclude 
all developed areas, or other lands unlikely to contain the primary 
constituent elements.

Special Management Considerations or Protection

    In 1982, the BLM established the Fish Slough Area of Critical 
Environmental Concern (ACEC) in an effort to provide protection for the 
federally endangered Owens pupfish (Cyprinodon radiosus), several rare 
plant taxa including Astragalus lentiginosus var. piscinensis, and the 
wetland and riparian habitats upon which these species depend. The 
listing of the Owens pupfish under the Act provides additional 
recognition of the need to protect the Fish Slough ecosystem and has 
indirectly provided some benefit to A. l. var. piscinensis by raising 
the level of management attention that is devoted to Fish Slough. 
Conversely, the creation of impoundments and other manipulations of 
spring systems in the slough which have been done to manage pupfish 
have likely affected the suitability of alkaline meadow habitat that 
could be occupied by A. l. var. piscinensis by increasing the length of 
inundation in certain areas. A management plan for the ACEC was 
finalized in 1984, and the plan has not been revised since it was 
completed. Astragalus lentiginosus var. piscinensis was not a listed 
taxon when the ACEC management plan was completed.
    The Fish Slough ACEC has three zones (BLM 1984). Zone 1 is 
approximately 7,961 ac (3,221 ha) in size and is located within the 
southeastern portion of the ACEC. Zone 1 encompasses all but the 
southern-most occurrences of Astragalus lentiginosus var. piscinensis. 
The proposed critical habitat unit is predominantly located within Zone 
1 of the ACEC, but also extends slightly beyond the boundary of this 
zone to the south and west. The land in this zone is owned by the BLM, 
CDFG, LADWP, and one private land owner. Zones 2 and 3 of the ACEC are 
located in the Volcanic Tableland area west or northwest of Zone 1, and 
collectively measure 27,964 ac (11,317 ha) in size. Zone 2 was included 
within the ACEC because this area includes the surface water drainage 
up-gradient of Fish Slough, and the area was deemed necessary to 
protect the quality and quantify of surface and ground water that 
enters Fish Slough. Zone 3 was included within the ACEC because this 
area is thought to include an aquifer that affects the hydrology of 
Fish Slough.
    A joint management committee composed of representatives of the 
LADWP, BLM, the Service, and CDFG provides guidance on ACEC management 
issues. The committee meets at least once a year to discuss land 
management activities or new developments that have the potential to 
adversely affect Astragalus lentiginosus var. piscinensis or other 
regionally endemic species or their habitats. The annual meeting 
provides a forum that fosters communication, cooperation, and the 
coordination of activities among the different committee members.
    The suite of factors that affect Astragalus lentiginosus var. 
piscinensis is complex. The establishment of the Fish Slough ACEC has 
helped provide some benefit for A. l. var. piscinensis by coordinating 
the activities of staff from the BLM, LADWP, and CDFG on various land 
management challenges which exist in the local area. Because the long, 
narrow configuration of the slough is bounded by upland habitat, the 
amount of alkaline habitat that can be occupied by A. l. var. 
piscinensis is limited. Ferren (1991b) summarizes threats to botanical 
resources at Fish Slough, noting that those related to the enhancement 
of fisheries (construction of ponds, impoundments, roads, and ditches) 
may have had the greatest effect on the Fish Slough ecosystem. In the 
central portion of the slough, Fish Slough Lake appears to have 
expanded in size between 1944 and 1981. This increase may be due to 
natural geologic subsidence, the construction of Red Willow Dam, or the 
construction of water impoundments by beavers. The increase in aquatic 
habitat has likely resulted in the loss of alkaline habitat for A. l. 
var. piscinensis as soils near the lake are now saturated for greater 
portions of the year (Ferren 1991c). Some earthquake events in Chalfant 
Valley appear to have resulted in decreases in spring discharge or 
changes in local water table levels (Brian Tillemans, LADWP, pers. 
comm. 2000), thereby making it more difficult to clearly understand the 
nature of the local aquifer. Conflicts that arise in the management of 
Fish Slough are not easily resolved, and modifications to the slough 
environment from changes in the

[[Page 31562]]

local hydrology are not well understood or easily reversed. These 
factors, in combination with essential data gaps that include, but are 
not limited to, a more thorough understanding of the ecology and 
habitat requirements of the listed plant taxon have made it difficult 
for local land managers to understand and reverse the decline in the 
number of A. l. var. piscinensis within the ACEC over the past decade. 
The trend in the taxon's abundance during the past decade suggests 
that, despite the ongoing efforts of the relevant land management 
agencies, additional factors need to be addressed to reverse the 
decline in the status of A. l. var. piscinensis.
    In 1998, the Service completed the Owens Basin Wetland and Aquatic 
Species Recovery Plan Inyo and Mono Counties, California (USFWS 1998). 
The document describes the natural history and threats that pertain to 
Astragalus lentiginosus var. piscinensis and describes only those 
general recovery actions necessary for its delisting. If implementation 
of the recovery tasks described in the recovery plan proceeds as 
scheduled, the recovery and delisting of A. l. var. piscinensis is 
expected to take at least 15 years.
    Because Astragalus lentiginosus var. piscinensis is not listed by 
the state of California as a rare, threatened, or endangered taxon, and 
is not a candidate for state listing as threatened or endangered, the 
CDFG does not have an agency management plan that provides 
prescriptions designed to conserve or actively manage this taxon. The 
agency is, however, signatory to the 1984 Fish Slough ACEC management 
plan.
    Under section 404 of the Clean Water Act (CWA), 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 CWA requires project proponents to obtain a 
permit from the Corps prior to undertaking activities that would result 
in the filling of wetlands subject to the Corps' jurisdiction. These 
activities include grading, discharge of soil or other fill material, 
etc. Habitat for Astragalus lentiginosus var. piscinensis consists of 
alkaline flats adjacent to jurisdictional wetlands under the purview of 
section 404 of the CWA. Some protection from wetland fill activity, 
such as the construction of new impoundments or diversion structures, 
may be afforded by the Corps' regulatory process; however, unless a 
population of A. l. var. piscinensis is present within the footprint of 
the fill area or zone of construction activities, the impacts of the 
project on the taxon (e.g., changes in surface or ground water 
hydrology that affect the character and persistence of alkaline 
habitat) may not be considered.
    Special management considerations or protection may be needed to 
maintain the physical and biological features as well as the primary 
constituent elements essential to the conservation of Astragalus 
lentiginosus var. piscinensis within the unit being proposed as 
critical habitat. As noted in the ``Critical Habitat'' section, 
``special management considerations or protection'' is a term that 
originates in section 3(5)(A) of the Act under the definition of 
critical habitat. We believe that the proposed critical habitat unit 
may require special management considerations or protections due to the 
threats outlined below.
    (1) Activities that have the potential to change the hydrology of 
Fish Slough and adversely affect the survivorship, seed germination, 
growth, or photosynthesis of Astragalus lentiginosus var. piscinensis, 
unless such activities are designed and have the effect of recreating 
the historic environmental conditions that existed in Fish Slough.
    (2) Activities that have the potential to adversely affect the 
suitability of alkaline areas that could provide habitat for Astragalus 
lentiginosus var. piscinensis including, but not limited to, off-road 
vehicle use, levels of cattle grazing which could result in increased 
soil compaction, and road construction and maintenance activities.
    (3) Activities that have the potential to modify the species 
composition, character, or persistence of the native plant associations 
that are associated with Astragalus lentiginosus var. piscinensis.
    (4) Activities that could adversely affect the insect pollinators 
that inhabit the native upland desert scrub community that is adjacent 
to alkaline habitats in Fish Slough including, but not limited to, 
livestock grazing at levels which would increase soil compaction, use 
of heavy-wheeled vehicles or off-road vehicles (including motorcycles 
and all terrain vehicles), pesticide use, and incompatible recreational 
activities.
    (5) Management activities, particularly those that involve cattle 
grazing and road maintenance, that have the potential to introduce new 
non-native plant species that may compete with or displace Astragalus 
lentiginosus var. piscinensis.

Relationship to Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data available after taking into consideration the economic impact, the 
effect on national security, and any other relevant impact, of 
specifying any particular area as critical habitat. An area may be 
excluded from critical habitat if it is determined, following an 
analysis, that the benefits of such exclusion outweigh the benefits of 
specifying a particular area as critical habitat, unless the failure to 
designate such area as critical habitat will result in the extinction 
of the species. Consequently, we may exclude an area from designated 
critical habitat based on economic impacts, effects on national 
security, or other relevant impacts such as preservation of 
conservation partnerships, if we determine the benefits of excluding an 
area from critical habitat outweigh the benefits of including the area 
in critical habitat, provided the action of excluding the area will not 
result in the extinction of the species. In this proposed rule we have 
not excluded any lands on the basis of economic impacts.
    Further, we conducted an evaluation of other potential impacts that 
may result from this designation, including those to national security, 
partnerships with local jurisdiction in the development of habitat 
conservation plans, conservation agreements, and management plans, as 
well as Tribal nations. We determined that the lands within the 
designation of critical habitat for Astragalus lentiginosus var. 
piscinensis are not owned or managed by the Department of Defense, 
there are currently no habitat conservation plans or other management 
plans for A. l. var. piscinensis, and the designation does not include 
any Tribal lands or trust resources. As such, we have not excluded any 
lands from this proposed critical habitat designation based on 
potential impacts to these factors.

Proposed Critical Habitat Designation

    We propose to designate a single critical habitat unit for 
Astragalus lentiginosus var. piscinensis that encompasses approximately 
8,490 ac (3,435 ha). Within the proposed unit, the city of Los Angeles 
owns four separate parcels that total 2,923 ac (1,183 ha) in area. The 
CDFG owns a single 166 ac (67 ha) parcel in the proposed critical 
habitat unit. The remaining land within the proposed unit is owned by 
the BLM and comprises 5,401 ac (2,185 ha). The

[[Page 31563]]

approximate size of the different land ownership areas within the 
proposed critical habitat unit is shown in Table 1. Lands managed by 
the BLM and LADWP comprise 64 and 34 percent of the total proposed 
unit, respectively, with State lands comprising approximately 2 
percent.

     Table 1.--Approximate Areas in Acres (ac) and Hectares (ha) of Proposed Critical Habitat for Astragalus
                               lentiginosus var. piscinensis by Land Ownership \1\
----------------------------------------------------------------------------------------------------------------
                                      City of Los          State of
   Critical habitat  unit name          Angeles           California        Federal  (BLM)           Total
----------------------------------------------------------------------------------------------------------------
Fish Slough unit................  2,923 ac..........  166 ac............  5,401 ac..........  8,490 ac
                                  (1,183 ha)........  (67 ha)...........  (2,185 ha)........  (3,435 ha)
----------------------------------------------------------------------------------------------------------------
\1\ Approximate acres have been converted to hectares (1 ha = 2.47 ac).

    The proposed Fish Slough critical habitat unit described below 
constitutes our best assessment at this time of the area that is 
essential for the conservation of Astragalus lentiginosus var. 
piscinensis and includes Federal, State, and City lands. The land 
within the proposed critical habitat unit contains all of the known 
occurrences of A. l. var. piscinensis, alkaline habitat occupied by 
this taxon, and the upland areas that provide cover sites for insect 
pollinators and require special management to control non-native plant 
species. The land within the proposed unit also includes the Spartina--
Sporobolis plant association and Chrysothamnus albidus which is present 
in the transition zone between the Spartina--Sporobolis and 
Chrysothamnus albidus--Distichlis plant associations. The unit also 
includes some of the hydrologic features that we believe are necessary 
to promote the persistence and successful recruitment of the listed 
plant taxon.
    This unit boundary overlaps the boundary of Inyo and Mono counties 
in the state of California. The northern-most boundary of the proposed 
Fish Slough critical habitat unit is located approximately 3,444 ft 
(1,050 m) north of Northeast Spring in the northern portion of Fish 
Slough. The southern boundary of the proposed unit is approximately 510 
ft (155 m) north of the Owens River near an area that is labeled ``Five 
Bridges'' on the Fish Slough U.S. Geological Survey 1:24,000 scale 
topographic quadrangle. The eastern and western boundaries of the 
proposed unit are parallel to, overlap, or are adjacent to the eastern 
and western boundaries of Zone 1 of the BLM's Fish Slough ACEC, 
respectively.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or 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 us on any action that is likely to 
jeopardize the continued existence of a proposed species or result in 
destruction or adverse modification of proposed critical habitat. 
Conference reports provide conservation recommendations to assist the 
agency in eliminating conflicts that may be caused by the proposed 
action. The conservation recommendations in a conference report are 
advisory. If a species is listed or critical habitat is designated, 
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 such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
action agency ensures that the permitted actions do not destroy or 
adversely modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    We may issue a formal conference report if requested by a Federal 
agency. Formal conference reports on proposed critical habitat contain 
an opinion that is prepared according to 50 CFR 402.14, as if critical 
habitat were designated. We may adopt the formal conference report as 
the biological opinion when the critical habitat is designated, if no 
substantial new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)).
    Activities on Federal lands that may affect Astragalus lentiginosus 
var. piscinensis or its critical habitat will require section 7 
consultation. Activities on private or State lands requiring a permit 
from a Federal agency, such as a permit from the Army Corps under 
section 404 of the Clean Water Act, a section 10(a)(1)(B) permit from 
the Service, or some other Federal action, including funding (e.g., 
Federal Highway Administration or Federal Emergency Management Agency 
funding), will also continue to be subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat and

[[Page 31564]]

actions on non-Federal and private lands that are not federally funded, 
authorized, or permitted do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat include those that appreciably reduce the value of critical 
habitat to Astragalus lentiginosus var. piscinensis. We note that such 
activities may also jeopardize the continued existence of the species.
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued existence'' of a species are those that 
would appreciably reduce the likelihood of the species' survival and 
recovery. Actions likely to ``destroy or adversely modify'' critical 
habitat are those that would appreciably reduce the value of critical 
habitat to the listed species.
    Common to both definitions is an appreciable detrimental effect on 
both survival and recovery of a listed species. Given the similarity of 
these definitions, actions likely to destroy or adversely modify 
critical habitat would often result in jeopardy to the species 
concerned when the area of the proposed action is occupied by the 
species concerned.
    Federal agencies already consult with us on activities in areas 
currently occupied by the species to ensure that their actions do not 
jeopardize the continued existence of the species. These actions 
include, but are not limited to:
    (1) Activities that disturb or degrade the character of alkaline 
soils or hydrology necessary to support wetlands in Fish Slough.
    (2) Activities that have the potential to introduce new non-native 
plant species to Fish Slough or promote the spread of non-native plant 
species that are already present in the local area.
    (3) Activities that alter the character of the native plant 
associations that co-occur with Astragalus lentiginosus var. 
piscinensis.
    (4) Activities that adversely affect insect pollinators that 
facilitate viable seed production in Astragalus lentiginosus var. 
piscinensis.
    (5) Activities on Federal lands (e.g., BLM) or private lands that 
require permits from Federal agencies (e.g., the U.S. Army Corps of 
Engineers) or use Federal funding (e.g., dollars provided by the 
Natural Resource Conservation Service).
    (6) Sale or exchange of lands by a Federal agency to a non-Federal 
entity; and
    (7) Promulgation and implementation of a land use plan by a Federal 
agency such as the BLM that may alter management practices for critical 
habitat.

Activities that may destroy or adversely modify critical habitat 
include those that alter the primary constituent elements to an extent 
that the value of critical habitat for the conservation of Astragalus 
lentiginosus var. piscinensis is appreciably reduced. We note that such 
activities may also jeopardize the continued existence of the taxon.
    If you have questions regarding whether specific activities will 
constitute destruction or adverse modification of critical habitat, 
contact the Field Supervisor, Ventura Fish and Wildlife Office (see 
ADDRESSES section). Requests for copies of the regulations on listed 
wildlife and plants and inquiries about prohibitions and permits may be 
addressed to the U.S. Fish and Wildlife Service, Branch of Endangered 
Species, 911 N.E. 11th Ave, Portland, OR 97232 (telephone 503/231-2063; 
facsimile 503/231-6243).

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial data 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species.
    An analysis of the economic impacts of proposing critical habitat 
for the Astragalus lentiginosus var. piscinensis is being prepared. We 
will announce the availability of the draft economic analysis as soon 
as it is completed, at which time we will seek public review and 
comment. At that time, copies of the draft economic analysis will be 
available for downloading from the Internet at http://ventura.fws.gov, 
or by contacting the Ventura Fish and Wildlife Office directly (see 
ADDRESSES section).

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we will solicit the expert opinions of at least three 
appropriate and independent specialists regarding this proposed rule. 
The purpose of such review is to ensure that our critical habitat 
designation is based on scientifically sound data, assumptions, and 
analyses. We will send these peer reviewers a copy of the proposed rule 
immediately following publication in the Federal Register. We will 
invite these peer reviewers to comment, during the public comment 
period, on the specific assumptions and conclusions regarding the 
proposed designation of critical habitat.
    All comments and information received during the 60-day comment 
period on this proposed rule will be considered as we prepare our final 
rulemaking. Accordingly, the final designation may differ from this 
proposal.

Public Hearings

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

Clarity of the Rule

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

[[Page 31565]]

    (5) What else could we do to make this proposed rule easier to 
understand?
    Send a copy of any comments on how we could make this proposed rule 
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: [email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but it is not anticipated to have an annual effect on the economy of 
$100 million or more or affect the economy in a material way. The 
Office of Management and Budget (OMB) has not reviewed this proposed 
rule, but intends to review the final rule.
    We are preparing a draft economic analysis of this proposed action. 
We will use this analysis to meet the requirement of section 4(b)(2) of 
the Act to determine the economic consequences of designating the 
specific areas as critical habitat and excluding any area from critical 
habitat if it is determined that the benefits of such exclusion 
outweigh the benefits of specifying such areas as part of the critical 
habitat, unless failure to designate such area as critical habitat will 
lead to the extinction of the Astragalus lentiginosus var. piscinensis. 
This draft economic analysis will be made available for public review 
and comment before we finalize this designation. At that time, copies 
of the analysis will be available for downloading from the Ventura Fish 
and Wildlife Office's Internet Web site at http://ventura.fws.gov or by 
contacting the Ventura Fish and Wildlife Office directly (see ADDRESSES 
section).

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act (RFA) to require Federal agencies to 
provide a statement of the factual basis for certifying that the rule 
will not have a significant economic impact on a substantial number of 
small entities.
    At this time, the Service lacks the available economic information 
necessary to provide an adequate factual basis for the required RFA 
finding. Therefore, the RFA finding is deferred until completion of the 
draft economic analysis prepared pursuant to section 4(b)(2) of the ESA 
and E.O. 12866. This draft economic analysis will provide the required 
factual basis for the RFA finding. Upon completion of the draft 
economic analysis, the Service will publish a notice of availability of 
the draft economic analysis of the proposed designation and reopen the 
public comment period for the proposed designation for an additional 60 
days. The Service will include with the notice of availability, as 
appropriate, an initial regulatory flexibility analysis or a 
certification that the rule will not have a significant economic impact 
on a substantial number of small entities accompanied by the factual 
basis for that determination. The Service has concluded that deferring 
the RFA finding until completion of the draft economic analysis is 
necessary to meet the purposes and requirements of the RFA. Deferring 
the RFA finding in this manner will ensure that the Service makes a 
sufficiently informed determination based on adequate economic 
information and provides the necessary opportunity for public comment.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2))

    In the draft economic analysis, we will determine whether 
designation of critical habitat will cause (a) any effect on the 
economy of $100 million or more; (b) any increases in costs or prices 
for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions; or (c) any significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
This proposed rule to designate critical habitat for Astragalus 
lentiginosus var. piscinensis is considered a significant regulatory 
action under Executive Order 12866 in that it may raise novel legal and 
policy issues. However we do not anticipate that the proposed 
designation of critical habitat for this taxon will significantly 
affect energy supplies, distribution, or use because there are no 
pipelines, distribution facilities, power grid stations, etc. within 
the boundaries of proposed critical habitat. Therefore, we do not 
believe that this action is a significant energy action and no 
Statement of Energy Effects is required. We will further examine any 
potential effect in our economic analysis of this proposal.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. (At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from

[[Page 31566]]

participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities who receive Federal 
funding, assistance, permits or otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments. The term ``small governmental jurisdiction'' 
means governments of cities, counties, towns, townships, villages, 
school districts, or special districts, with a population of less than 
fifty thousand (U.S.C. title 5, part I, chapter 6, section 601[5]). The 
lands being proposed for critical habitat designation are owned by the 
City of Los Angeles, the State of California, and the Federal Bureau of 
Land Management. None of these government entities fit the definition 
of ``small governmental jurisdiction''. As such, a Small Government 
Agency Plan is not required. We will, however, further evaluate this 
issue as we conduct our economic analysis and as appropriate, review 
and revise this assessment as warranted.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for Astragalus lentiginosus var. 
piscinensis. This preliminary assessment concludes that this proposed 
rule does not pose significant takings implications; however, we have 
not yet completed the economic analysis for this proposed rule. Once 
the economic analysis is available, we will review and revise this 
preliminary assessment as warranted.

Federalism

    In accordance with Executive Order 13132, this rule does not have 
significant federalism effects. A federalism assessment is not 
required. In keeping with Department of the Interior policies, we 
requested information from and coordinated development of this proposed 
critical habitat designation with appropriate State resource agencies 
in California. The proposed designation of critical habitat in areas 
currently occupied by Astragalus lentiginosus var. piscinensis imposes 
no additional significant restrictions beyond those currently in place 
and, therefore, has little incremental impact on State and local 
governments and their activities.
    The proposed designation of critical habitat may have some benefit 
to the State and local resource agencies in that the areas essential to 
the conservation of this species are more clearly defined, and the 
primary constituent elements of the habitat necessary to the 
conservation of this species are specifically identified. While this 
definition and identification does not alter where and what federally 
sponsored activities may occur, it may assist local governments in 
long-range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and does meet the requirements of 
sections 3(a) and 3(b)(2) of the Order. We are proposing to designate 
critical habitat in accordance with the provisions of the Endangered 
Species Act. The rule uses standard property descriptions and 
identifies the primary constituent elements within the designated areas 
to assist the public in understanding the habitat needs of the 
Astragalus lentiginosus var. piscinensis.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This proposed rule does not contain new or revised information 
collection for which OMB approval is required under the Paperwork 
Reduction Act. Information collections associated with certain Act 
permits are covered by an existing OMB approval and are assigned 
clearance No. 1018-0094, Forms 3-200-55 and 3-200-56, with an 
expiration date of July 31, 2004. Detailed information for Act 
documentation appears at 50 CFR 17. This rule will not impose 
recordkeeping or reporting requirements on State or local governments, 
individuals, businesses, or organizations. An agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.

National Environmental Policy Act

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

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no Tribal lands essential for the conservation of Astragalus 
lentiginosus var. piscinensis. Therefore, designation of critical 
habitat for A. l. var. piscinensis has not been proposed on Tribal 
lands.

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 Douglas Threloff in the 
Ventura Fish and Wildlife Office staff (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
record keeping requirements, Transportation.

Proposed Regulation Promulgation

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

[[Page 31567]]

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. In Sec.  17.12(h), revise the entry for ``Astragalus 
lentiginosus var. piscinensis,'' under ``FLOWERING 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 lentiginosus var.    Fish Slough milk-    U.S.A. (CA)........  Fabaceae-Pea.......  T                       647  17.96(a).......         NA
   piscinensis.                    vetch.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

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


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
    Family Fabaceae: Astragalus lentiginosus var. piscinensis (Fish 
Slough milk-vetch)
    (1) The critical habitat unit is depicted for Inyo and Mono 
Counties, California, on the map below.
    (2) The primary constituent elements of critical habitat for 
Astragalus lentiginosus var. piscinensis consist of:
    (i) Alkaline soils that occur in areas with little or no slope, and 
which overlay a ground water table that is 19-60 in (0.5-1.5 m) below 
the land surface;
    (ii) Plant associations dominated by Spartina--Sporobolis, or where 
a sparse amount of Chrysothamnus albidus occurs in the transition zone 
between Spartina--Sporobolis and Chrysothamnus albidus--Distichlis 
plant associations;
    (iii) Upland areas within 1,000 m (3,280 ft) of the alkaline soils 
described in (1), that support sites where the listed plant's 
pollinator populations are likely to nest or obtain cover, that require 
minimal disturbance and active management to limit the establishment of 
non-native plant taxa, and portions of which may be suitable for 
restoration and recolonization by Astragalus lentiginosus var. 
piscinensis; and
    (iv) Hydrologic conditions that provide suitable periods of soil 
moisture and chemistry for Astragalus lentiginosus var. piscinensis 
germination, growth, reproduction, and dispersal.
    (3) Critical habitat does not include existing features and 
structures, such as buildings, roads, parking lots, and other paved 
surfaces or areas not containing one or more of the primary constituent 
elements.
    (4) Critical Habitat Map Unit.
    (i) Map Unit 1: Fish Slough critical habitat unit, Inyo and Mono 
Counties, California. From USGS 1:24,000 quadrangle maps Chidago Canyon 
and Fish Slough, California. Lands bounded by UTM Zone 11, NAD 1927 
coordinates (E, N): 375800, 4154200, 376100, 4154300; 376500, 4154200; 
376700, 4154100; 377000, 4153900; 377200, 4153600; 377300, 4153400; 
377400, 4153100; 377400, 4152400; 377300, 4151900; 377200, 4151600; 
377300, 4150200; 377200, 4149900; 377100, 4149700; 377000, 4149500; 
377300, 4149100; 377400, 4148900; 377500, 4148200; 377500, 4147700; 
377400, 4147100; 377300, 4146400; 377200, 4145800; 377100, 4145600; 
377000, 4145300; 377000, 4145200; 376900, 4144600; 376900, 4144300; 
376900, 4144200; 376800, 4144000; 376800, 4143800; 376900, 4143700; 
377100, 4143600; 377500, 4143000; 377500, 4142600; 377400, 4142200; 
377100, 4141800; 376500, 4141600; 376100, 4141700; 376000, 4141700; 
375600, 4141800; 375200, 4142000; 375000, 4142200; 374800, 4142500; 
374700, 4142900; 374600, 4143500; 374500, 4144000; 374600, 4144400; 
374700, 4144600; 374700, 4145600; 374800, 4145900; 374900, 4146300; 
374900, 4146900; 374800, 4147300; 374700, 4147500; 374400, 4147800; 
374000, 4148600; 373800, 4149200; 373700, 4149500; 373800, 4149800; 
373800, 4150300, 373900, 4150700; 373900, 4151400; 374000, 4151800; 
374100, 4152400; 374200, 4152700; 374400, 4153000; 374500, 4153100; 
374800, 4153200; 375000, 4153300; 375100, 4153500; 375200, 4153700; 
375400, 4154000; 375700, 4154200; 375800, 4154200; and returning to 
375800, 4154200.
    (ii) Excluding: 375700, 4143400; 375700, 4142900; 376300, 4142900; 
376300, 4143400; returning to 375700, 4143400.
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[GRAPHIC] [TIFF OMITTED] TP04JN04.001



[[Page 31569]]


    Dated: May 27, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-12658 Filed 6-3-04; 8:45 am]
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