[Federal Register Volume 70, Number 110 (Thursday, June 9, 2005)]
[Rules and Regulations]
[Pages 33774-33795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11315]



[[Page 33773]]

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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Astragalus lentiginosus var. piscinensis (Fish Slough Milk-
Vetch); Final Rule

  Federal Register / Vol. 70, No. 110 / Thursday, June 9, 2005 / Rules 
and Regulations  

[[Page 33774]]


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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; Designation of 
Critical Habitat for Astragalus lentiginosus var. piscinensis (Fish 
Slough Milk-Vetch)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for the federally threatened Astragalus 
lentiginosus var. piscinensis (Fish Slough milk-vetch) pursuant to the 
Endangered Species Act of 1973, as amended (Act). In total, 
approximately 8,007 acres (ac) (3,240 hectares (ha)) fall within the 
boundary of the critical habitat designation. The critical habitat is 
located in Mono and Inyo Counties, California.

DATES: This rule becomes effective on July 11, 2005.

ADDRESSES: All comments and materials received during the comment 
periods, and supporting documentation used in preparation of the 
proposed and final rules, will be available for public inspection, by 
appointment, during normal business hours at the Ventura Fish and 
Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93003 
(telephone number 805/644-1766). The final rule, economic analysis, and 
map will also be available via the Internet at http://ventura.fws.gov/.

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

SUPPLEMENTARY INFORMATION

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In the 30 years of implementing the Act (16 U.S.C. 1531 et seq.), 
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 it 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 473 species or 37 percent 
of the 1,264 listed species in the U.S. under the jurisdiction of the 
Service have designated critical habitat.
    We address the habitat needs of all 1,264 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, 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.
    We note, however, that two courts found our definition of adverse 
modification to be invalid (March 15, 2001, decision of the U.S. Court 
of Appeals for the Fifth Circuit, Sierra Club v. U.S. Fish and Wildlife 
Service et al., F.3d 434, and the August 6, 2004, Ninth Circuit 
judicial opinion, Gifford Pinchot Task Force v. U.S. Fish and Wildlife 
Service). In response to these decisions, we are reviewing the 
regulatory definition of adverse modification in relation to the 
conservation of the 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 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 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 of 1969 (NEPA). 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

    Our intent is to discuss only those topics directly relevant to the 
final designation of critical habitat in this rule. For more 
information on Astragalus lentiginosus var. piscinensis, refer to the 
final listing rule for the taxon that was published in the Federal 
Register on October 6, 1998 (63 FR 53596), or the proposed designation 
of critical habitat for the taxon published on June 4, 2004 (69 FR 
31552).
    In the proposed critical habitat designation, we stated that it was 
unlikely that Astragalus lentiginosus var. piscinensis was present on a 
privately owned parcel in Township 6, South Range 33 East, section 18 
and did not propose designating the parcel as critical habitat. 
However, we have determined that 8 individuals of the

[[Page 33775]]

listed plant taxon were present on or immediately adjacent to this 
parcel in 1992, and 1 individual was present in 2000. For more 
information, see the ``Criteria Used to Identify Critical Habitat'' 
section of this final rule.
    Also, after the proposed rule was published, we received several 
documents that pertain to the Five Bridges Aggregate Pit that is 
operated by the Desert Aggregates company, and these documents are 
described in the ``Summary of Changes'' section of this final rule.

Previous Federal Action

    On June 4, 2004, we published a proposed rule to designate 
approximately 8,490 ac (3,435 ha) of land in Mono and Inyo Counties, 
California, as critical habitat for Astragalus lentiginosus var. 
piscinensis (69 FR 31552). In the proposed rule, we included a detailed 
summary of the previous Federal actions completed prior to publication 
of the proposal. The comment period associated with the proposed rule 
closed on August 3, 2004. On December 28, 2004, we published a notice 
of availability of the draft economic analysis (DEA) for the 
designation of critical habitat for A. l. var. piscinensis, and 
reopened the comment period for the proposed rule and DEA (69 FR 
77703). This second comment period closed on January 27, 2005.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for Astragalus lentiginosus var. 
piscinensis in the proposed rule published on June 4, 2004 (69 FR 
31552). We also contacted appropriate Federal, State, and local 
agencies, one Tribe, scientific organizations, and other interested 
parties and invited them to comment on the proposed rule. During the 
comment period that opened on June 4, 2004, and closed on August 3, 
2004, we received 11 comment letters directly addressing the proposed 
critical habitat designation: 5 from peer reviewers, 2 from 
environmental groups, 4 from companies or individuals, and none from 
local, State, or Federal agencies or Tribes.
    During the comment period that opened on December 28, 2004, and 
closed on January 27, 2005, we received four comment letters addressing 
the proposed critical habitat designation and the DEA. Of these latter 
comments, one was from a peer reviewer, one was from an environmental 
group, and two were from a company or individual. None were from local, 
State, or Federal agencies, or Tribes. For those letters received 
during both comment periods, five commenters supported the designation 
of critical habitat for A. l. var. piscinensis and one opposed the 
designation. Seven entities responded with comments or information, but 
did not express support or opposition to the proposed critical habitat 
designation. Comments received during both comment periods are 
addressed in the following summary and incorporated into the final rule 
as appropriate. We did not receive any requests for a public hearing.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from nine knowledgeable 
individuals with scientific expertise that included familiarity with 
Astragalus lentiginosus var. piscinensis or the habitat the taxon 
requires, the geographic region in which the taxon occurs, and 
conservation biology principles. We received responses from six peer 
reviewers. The peer reviewers generally concurred with our methods and 
conclusions and provided additional information, clarifications, and 
suggestions to improve the final critical habitat rule.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding critical 
habitat for the Astragalus lentiginosus var. piscinensis, and 
incorporated them into the final rule as appropriate.

Peer Review Comments

Issue 1: Hydrology
    Comment 1: One peer reviewer noted that changes in aquifer 
conditions have the potential to adversely affect the quality of 
habitat upon which the endemic plant and animal species depend in Fish 
Slough. Another peer reviewer noted that many of the threats affecting 
Astragalus lentiginosus var. piscinensis habitat have also caused the 
extinction, or decreases in the abundance and distribution, of several 
other species occupying springs in the southwestern United States.
    Our Response: We recognize that the threats affecting or 
potentially affecting Astragalus lentiginosus var. piscinensis include 
many of the same factors that have caused the extinction or reduction 
in the distribution and abundance of other species that occupy riparian 
and wetland habitats in the southwestern United States. We agree that 
changes in hydrologic conditions have the potential to affect the 
quality of the alkaline habitat that A. l. var. piscinensis depends 
upon. We have, therefore, included a primary constituent element (PCE) 
in this final rule that reflects the hydrologic conditions needed by 
the species to provide suitable periods of soil moisture and chemistry 
for A. l. var. piscinensis germination, growth, reproduction, and 
dispersal.
    Comment 2: Two peer reviewers expressed concerns that ground water 
pumping activities outside, or near the boundary of, the proposed 
critical habitat unit may adversely affect the water table or spring 
discharge in Fish Slough, and therefore, affect the quality of habitat 
in Fish Slough.
    Our Response: We agree that ground water pumping activities could 
potentially affect the character of wetland or riparian habitat in Fish 
Slough. A portion of the Five Bridges Aggregate Pit was included in the 
southern portion of the proposed critical habitat unit. The expansion 
of the pit will occur in multiple phases and include ground disturbance 
and the pumping of ground water (Secor International Incorporated and 
Lilburn Corporation 2004). One documented occurrence (California 
Natural Diversity Data Base 2004) of Astragalus lentiginosus var. 
piscinensis occurs within 1,600 to 4,600 feet (ft) (488 to 1,402 meters 
(m)) of phase 1 of the planned expansion project. If the pumping 
activities alter the soil moisture and chemistry of the area where A. 
l. var. piscinensis occurs, then germination, growth, reproduction, and 
dispersal of the species could be adversely affected. Our concern 
regarding the pumping activity is highlighted by the fact that meadows 
depending on ground water exist in, and immediately adjacent to, phases 
1 and 2 of the proposed mine expansion. Past pumping activity has been 
identified as a factor affecting the soil moisture and plant 
communities in these habitats (Secor International Incorporated and 
Lilburn Corporation 2004). We will periodically review monitoring data 
to determine if ground water pumping is affecting the local water 
table.
    Comment 3: One peer reviewer noted it can be difficult to attribute 
the current hydrologic conditions in a given area to specific 
anthropogenic activities, climate, or other environmental factors 
because they may occur during different time frames. Another reviewer 
noted it is not possible, at the present time, to specifically identify 
the factor(s) that are responsible for the decline in the spring 
discharge in the Fish Slough area that has occurred since the early 
1920s.
    Our Response: We agree that some factors influencing the habitats 
or

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species in Fish Slough have occurred on a short-term temporal scale, 
while other factors have occurred over a longer period of time. We also 
agree it is sometimes difficult to attribute specific activities or 
factors to particular changes in the hydrologic conditions at Fish 
Slough. We did not attempt to attribute the decline in spring discharge 
in Fish Slough to specific activities or factors. We believe a 
combination of activities or factors, including anthropogenic 
activities, climate, and environmental factors, are likely to affect 
the hydrology of Fish Slough and the alkaline habitat occupied by 
Astragalus lentiginosus var. piscinensis. We fully support activities 
that are designed to, and result in, collection of additional data that 
can be used to understand the hydrologic and geologic features that 
promote the creation and maintenance of alkaline habitat upon which A. 
l. var. piscinensis depends. Such data will create a greater 
opportunity to proactively manage the critical habitat unit described 
in this final rule, and thereby manage for the conservation of A. l. 
var. piscinensis.
    Comment 4: One peer reviewer noted that the proposed rule appeared 
to have contradictory text when it suggested Astragalus lentiginosus 
var. piscinensis was adversely affected by reduced water availability 
(that may be associated with ground water pumping activities in areas 
adjacent to Fish Slough), and by an overabundance of water (resulting 
from storage of water behind a berm near Fish Slough Lake).
    Our Response: Activities affecting the amount, distribution, and 
character of alkaline habitat that Astragalus lentiginosus var. 
piscinensis depends upon have the potential to affect the taxon. Some 
land management activities in Fish Slough have created increased levels 
of soil moisture in particular areas, and this species cannot tolerate 
excessive levels of inundation. In other instances, reductions in the 
amount of water discharging from springs have likely reduced the 
acreage or affected the chemistry of alkaline habitat that historically 
occurred in Fish Slough. Both of these changes have likely affected A. 
l. var. piscinensis because there may be less habitat for the taxon to 
occupy, or the chemistry of that habitat may no longer be optimum for 
it. Astragalus lentiginosus var. piscinensis occupies a relatively 
narrow ecological niche, and the taxon can be adversely affected by 
either too much or too little water.
    Comment 5: One peer reviewer suggested that the findings described 
in a report prepared by MHA Environmental Consulting, Inc. (MHA 2001) 
should be described in greater detail in the final rule. These findings 
suggest that ground water levels and spring discharges could decline in 
Fish Slough as a result of particular pumping activities outside the 
critical habitat unit.
    Our Response: MHA (2001) provided a preliminary hydrologic model 
that described the groundwater flow system in the Tri-Valley area. The 
Tri-Valley area includes Benton, Hammil, and Chalfant Valleys, which 
are located 2 to 30 miles (mi) (5 to 48 kilometers (km)) east and 
northeast of Fish Slough. Intensive ground water pumping activities in 
the Hammil-Chalfant Valley area have occurred, and water levels have 
declined over the last 10 to 20 years, suggesting that pumping 
activities are depleting the amount of groundwater underneath the 
wells. 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, groundwater tends 
to move in a southerly or southwesterly direction toward Fish Slough or 
toward Chalfant Valley east of Fish Slough. Therefore, there may be a 
potential for water diversion activities in Chalfant and Hammil Valleys 
to adversely affect the amount of water that discharges from springs in 
Fish Slough (MHA 2001). Alternatively, it may also be possible that 
pumping activities in these two valleys affect the hydrostatic pressure 
within the local aquifer and thereby influence the water table in Fish 
Slough.
    Astragalus lentiginosus var. piscinensis occupies alkaline soils 
that form as a result of spring discharge in Fish Slough. If 
groundwater pumping activities east or northeast of Fish Slough affect 
spring discharge or the hydrostatic pressure in Fish Slough, there may 
be a potential that the soil moisture or chemistry conditions in 
habitat where A. l. var. piscinensis occurs could be altered. If these 
changes were to occur, plant reproduction or persistence could be 
adversely affected.
Issue 2: Grazing
    Comment 6: One peer reviewer stated that controlling livestock 
grazing in upland areas is necessary to minimize the trampling of 
potential food resources that may be used by native bee species. The 
reviewer also stated that grazing in habitat used by bee species should 
not occur before, during, or after the period when host plants bloom.
    Our Response: We would agree with the peer reviewer that grazing 
could affect the habitat used by insect species that pollinate 
Astragalus lentiginosus var. piscinensis, but that would depend on the 
number of cattle involved. The Los Angeles Department of Water and 
Power (LADWP) has issued a lease to one individual that intermittently 
turns out a limited number of cattle and horses in Fish Slough on some 
of the lands that agency owns. The number of cattle, and length of time 
they are authorized to be in Fish Slough, has been reduced in recent 
years in an effort to reduce the potential that A. l. var. piscinensis 
is trampled or its habitat adversely affected. At the present level of 
grazing within the area designated for A. l. var. piscinensis, any 
impacts to pollinators would likely be minor. We have also encouraged 
LADWP to complete a management plan for the grazing allotment that 
would provide specific prescriptions that describe how grazing-related 
effects to A. l. var. piscinensis and associated habitat could be 
minimized.
    Comment 7: One peer reviewer asked if we had used statistical tests 
to determine if there was a significant difference in the abundance of 
Astragalus lentiginosus var. piscinensis in grazed and ungrazed plots.
    Our Response: We have not employed statistical methods to determine 
if the abundance of Astragalus lentiginosus var. piscinensis in grazed 
and ungrazed plots is significantly different. This type of analysis is 
beyond the scope of this rule making in that it does not identify or 
evaluate areas to be considered as critical habitat for A. l. var. 
piscinensis.
Issue 3: Delineation of the Proposed Unit Boundary
    Comment 8: One peer reviewer suggested that the proposed critical 
habitat boundary may be too small to ensure the conservation of 
Astragalus lentiginosus var. piscinensis because the source areas that 
are likely to provide the water that discharges in Fish Slough are 
outside the critical habitat unit. Another reviewer felt that 
delineating a larger critical habitat unit to include the aquifer 
contributing to the springs and near-surface ground water in Fish 
Slough was not warranted at this time. This reviewer stated that 
insufficient information is available to identify the precise location 
of the source(s) of the water that promote the presence of the alkaline 
habitat upon which A. l. var. piscinensis depends.
    Our Response: We considered delineating a critical habitat unit 
boundary that includes the source areas that provide water to Fish 
Slough such as: (1) Casa Diablo Mountain area northwest of Fish Slough; 
(2) the nearby Tri-Valley east and northeast of Fish Slough; or (3) a 
combination of these

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two areas (Bureau of Land Management (BLM) 1984; MHA 2001). We 
determined that information on the location of the source(s) of the 
water that sustain the alkaline habitat upon which Astragalus 
lentiginosus var. piscinensis depends is not available at the present 
time. As a result, we did not include the above mentioned areas in the 
critical habitat unit. We encourage local land managers and entities 
with expertise in hydrology to collect additional data that would more 
precisely determine the location of the source(s) of the water that 
discharge in Fish Slough and sustain A. l. var. piscinensis habitat. We 
believe this information is necessary to proactively manage this listed 
plant for its conservation.
    Comment 9: One peer reviewer questioned why the area south of the 
McNally Canals was included in the proposed critical habitat unit when 
the proposed rule stated this area contained little suitable habitat 
for Astragalus lentiginosus var. piscinensis. The individual also 
recommended that we specifically refer to a particular McNally Canal 
(north vs. south) when referring to the drainage canal network.
    Our Response: We recognize there are two artificial ditches in the 
southern portion of the proposed critical habitat unit, the North and 
South McNally Canals, and have provided text in this final rule that 
specifically refers by name to one or both of the canals. We have 
reviewed recent information that suggests that habitat quality in this 
area has been degraded by past pumping and water spreading activities, 
grazing, or agricultural activities (Pavlik 1998, 1999; The Twining 
Laboratories and ESR, Inc. 2004). We have determined that the area 
south of the southern McNally Canal is unoccupied and is not essential 
for the conservation of Astragalus lentiginosus var. piscinensis. We 
have, therefore, not included the area south of the southern McNally 
Canal in the designated critical habitat unit (see Summary of Changes 
from the Proposed Rule section).
    Even though the mine expansion area, south of the southern McNally 
Canal, is not essential to the conservation of the taxon, we note that 
ground water pumping in the area where future mining activities are 
scheduled to occur is likely to create a cone of depression for ground 
water (Secor International Incorporated and Lilburn Corporation 2004). 
If such an effect occurs, we are concerned that the pumping may affect 
the PCEs (e.g., alkaline soils, plant communities, and hydrologic 
conditions) in the portion of the designated critical habitat unit 
directly adjacent to the mine expansion area.
    Comment 10: One peer reviewer believes our rationale for including 
a 3,281 ft (1,000 m) wide upland area around the habitat occupied by 
Astragalus lentiginosus var. piscinensis requires additional support 
because we based it on a study done in Germany. The reviewer stated 
that the study results may not be applicable to Fish Slough because the 
two areas have different habitats, climate, and host plant composition.
    Our Response: When we delineated the perimeter of the proposed 
critical habitat unit, we assessed the significance of the information 
collected by Steffan-Dewenter and Tscharntke (2000) in Germany. We were 
influenced by their findings that showed that alteration and 
fragmentation of habitat used by pollinator species can lead to reduced 
levels of plant pollination. After we published the proposed rule in 
the Federal Register, another journal article was published that stated 
``pollination services provided by native bee communities in California 
strongly depended on the proportion of natural upland habitat within 1-
2.5 km of the farm site'' (Kremen et al. 2004). We conclude that 
alteration and fragmentation of habitat used by bee species is also 
likely to result in reduced levels of pollination in Astragalus 
lentiginosus var. piscinensis. This is because a reduction in the 
number of pollinators in an area is likely to reduce the number of bees 
that could potentially be available to pollinate A. l. var. 
piscinensis.
    In the proposed rule, we noted that successful reproduction for 
Astragalus lentiginosus var. piscinensis requires bee pollination. The 
specific bee species that pollinate the plant have not been identified, 
but at a minimum, include bumblebees (Bombus sp.) in the family Apidae 
(Mazer and Travers 1992). Bumblebees may forage many kilometers from a 
colony (Heinrich 1979), and the distance they will fly to forage is not 
unique. European honeybees (Aphis mellifer) are also known to have an 
ability to forage a similar distance (Beekman and Ratnieks 2000). We 
have, therefore, been conservative in defining a 3,281 ft (1,000 m) 
wide boundary around the habitat occupied by A. l. var. piscinensis.
    The conservation of this upland area in Fish Slough is essential to 
ensure that alteration and fragmentation of habitat used by pollinator 
species does not occur, so that adequate levels of Astragalus 
lentiginosus var. piscinensis pollination and seed formation can 
continue. We also note that none of the agencies owning land within the 
critical habitat unit have expressed any concern regarding the 3,281 ft 
(1,000 m) wide upland area around the alkaline habitat occurring in the 
critical habitat unit.
    Comment 11: One peer reviewer recommended that the unit boundary be 
redrawn to reflect local topographic differences, i.e., expand its 
boundary to the west, and narrow it to the east. This recommendation 
was based on the assumption that bee pollinators are less likely to fly 
up steep slopes, and the watershed to the west of where Astragalus 
lentiginosus var. piscinensis occurrences is larger. Therefore, it is 
likely to have a greater influence on the surface hydrology that may 
affect the plant's alkaline habitat.
    Our Response: The final rule designating critical habitat for 
Astragalus lentiginosus var. piscinensis has retained a unit boundary 
that has a symmetrical shape because we are not aware of data 
suggesting that likely A. l. var. piscinensis pollinators would be 
unable to fly up the relatively short (280 ft (85 m) high) ridge east 
of where the plant occurs. We agree that surface topography is less 
steep west of where A. l. var. piscinensis occurs, and there is a 
larger topographic area in this direction that could potentially affect 
the surface water hydrology of Fish Slough. The available hydrologic 
data do not suggest that surface water inflows or human activities 
within the 1.5 mi (2.4 km) distance referred to in the peer reviewer's 
comment letter affect the character of the alkaline habitat occupied by 
the plant species. Therefore, we are not able to identify the benefit 
that might be associated with shifting the unit boundary to the west, 
and have retained the original configuration of the unit boundary in 
the final rule.
Issue 4: Miscellaneous Topics
    Comment 12: One peer reviewer suggested that new studies should be 
completed to identify the taxonomic identity and habitat requirements 
of the insects that pollinate Astragalus lentiginosus var. piscinensis. 
Habitat essential to conserve A.l. var. piscinensis could then be 
defined more precisely. Another reviewer advocated new studies that 
could provide a greater understanding of the hydrology of the Fish 
Slough area.
    Our Response: We welcome any additional data to characterize the 
hydrology that affects Fish Slough and the ecology of the insect 
species that pollinate Astragalus lentiginosus var. piscinensis. 
However, we cannot delay our decision to allow for the

[[Page 33778]]

development of additional data, and have used the best available 
scientific data in our critical habitat designation.
    Comment 13: A peer reviewer suggested we should have organized 
particular portions of the proposed rule in a different manner than was 
presented. The reviewer also suggested we conduct additional 
statistical analyses to identify and determine the significance of 
particular relationships between species abundance and environmental 
factors, or trends in plant numbers. He questioned why we summarized 
data on population trends for Astragalus lentiginosus var. piscinensis 
in 5-year increments (i.e., 1991-1996 and 1997-2002), and asked if the 
overall trend in the available population data was consistent with 
trends in particular plots that have been monitored.
    Our Response: The format and organization of the proposed rule 
followed the procedural guidance for the preparation of rules 
established by the Service and the Federal Register. We appreciate the 
peer reviewer's suggestions, and will consider his comments as new 
rules are developed in the future.
    We agree it would be beneficial to conduct additional statistical 
analyses to identify and determine the significance of particular 
relationships between species abundance and environmental factors, or 
trends in plant numbers. These types of analyses are routinely done 
during a status review for a listed species but are not commonly done 
during a rule making process for critical habitat. In this case, the 
additional analysis suggested would not help identify areas for the 
critical habitat designation. To provide readers with an indication of 
how the abundance of Astragalus lentiginosus var. piscinensis has 
changed over time, and because data were available for a 12-year 
period, we chose to summarize population trend data for A. l. var. 
piscinensis in two time periods of equal duration, i.e., 1991-1996 and 
1997-2002.
    Comment 14: One peer reviewer suggested that, instead of providing 
personal communications between Service staff and other individuals, we 
should provide information contained within peer-reviewed journals.
    Our Response: We agree with the standard practice of providing 
information that is contained within published documents when these are 
available. Some of the information described in the proposed rule, 
e.g., population survey data that were collected by staff from the BLM 
or LADWP, was cited as a personal communication because this 
information only exists in tabular form in agency files and does not 
exist as a publication or formal report. The Act requires that we use 
the best available scientific data, but does not require that we only 
use data in published documents. Also, our Policy on Information 
Standards Under the Endangered Species Act, published in the Federal 
Register on July 1, 1994 (59 FR 34271), section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (P.L. 106-
554; H.R. 5658) and our associated Information Quality Guidelines, 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions represent the best scientific and commercial data 
available.
    Comment 15: Two peer reviewers supported our inclusion of upland 
areas outside of, but adjacent to, where Astragalus lentiginosus var. 
piscinensis occurs as these areas are likely to be used by insect 
species that pollinate it. One peer reviewer suggested that the PCE 
involving upland areas be modified to provide a stronger emphasis on 
the need to proactively manage pollinator species, surface water 
hydrology, and nonnative plant species by including an upland buffer.
    Our Response: We agree that the upland areas likely contain the 
burrows and cover sites that are used by the insect species that 
pollinate Astragalus lentiginosus var. piscinensis, and are essential 
for the conservation of this species. Although we agree with the peer 
reviewer's suggestion that multiple factors in the upland portion of 
the designated critical habitat unit require special management, we did 
not designate the upland area as a buffer. The upland area has one or 
more of the PCE's for Astragalus lentiginosus var. piscinensis and is 
essential to the conservation of the species.

Public Comments

    We reviewed all comments received from the public for substantive 
issues and new information regarding critical habitat for the 
Astragalus lentiginosus var. piscinensis, addressed them in the 
following summary, and incorporated them into the final rule as 
appropriate.
Issue 1: Biological Justification and Methodology
    Comment 16: One commenter disagreed with a suggestion in the 
proposed rule that water diversion activities have taken place at the 
Five Bridges Aggregate Pit. The commenter instead characterized the 
groundwater table as high in this area, and the mine is required to 
pump water from the current operating pit, but this water is pumped 
into on-site recharge basins. Therefore, the ground water is recharged, 
not diverted. The same commenter also inferred that the Service assumed 
that mining company staff did the pumping, and the commenter stated 
that staff from the LADWP did the pumping.
    Our Response: We continue to believe that groundwater in the 
vicinity of the mining activities has been diverted because ground 
water has been moved from one location to another. Our statement is 
based on the fact that water was pumped from sumps that were 
constructed near the pits where gravel was mined, and then conveyed to 
another location that was several hundred to a few thousand meters from 
the location where water was collected. It is possible that the 
diverted water is recharged at the point where it is released after it 
is diverted.
    We do not state in the proposed rule which entity conducted the 
water diversion activities that adversely affected riparian vegetation 
down-gradient of the mine. We only stated that pumping took place and 
riparian vegetation was adversely affected.
    Comment 17: One commenter requested that the critical habitat 
boundary be delineated to include the entire historic range of 
Astragalus lentiginosus var. piscinensis.
    Our Response: The critical habitat unit delineated in this final 
rule includes all of the known locations that were occupied by 
Astragalus lentiginosus var. piscinensis at the time of listing.
    Comment 18: One commenter requested we extend the deadline for 
submitting comments.
    Our Response: Our first comment period was open for 60 days, from 
June 4, 2004, until August 3, 2004. We reopened the comment period on 
December 28, 2004, for an additional 30 days when we published a notice 
of availability of the DEA for the designation of critical habitat for 
Astragalus lentiginosus var. piscinensis (69 FR 77703). This gave the 
public an opportunity to review and comment on the DEA and proposed 
rule concurrently. This second comment period closed on January 27, 
2005. Unfortunately, our ability to accept comments and work with 
stakeholders regarding the critical habitat designation for A. l. var. 
piscinensis is limited by a deadline imposed by a court order.
    Comment 19: One commenter noted that the long-term effect of 
designating critical habitat was beneficial, particularly because a 
large portion of

[[Page 33779]]

the local economy in the Fish Slough area relies on biological 
resources and scenery that attracts tourists to the area.
    Our Response: We recognize that one of the predominate sources of 
income for businesses in the town of Bishop and the Owens Valley area 
is derived from outdoor recreational activities and ecotourism. We note 
that the protection of Astragalus lentiginosus var. piscinensis and its 
habitat is beneficial for a variety of reasons, including the 
conservation of biological resources, an environment that people use 
and enjoy, and a local growing economy.
    Comment 20: A commenter that operates a grazing lease in Fish 
Slough suggested that cattle grazing activities are compatible with 
stable populations of Astragalus lentiginosus var. piscinensis, based 
on the number of plants that were observed in ``zones'' surveyed in 
1992 (Novak 1992), and again in 2000.
    Our Response: To show how the number of Astragalus lentiginosus 
var. piscinensis plants has varied through time, we presented data that 
were collected in monitoring plots on LADWP-owned land, as compared to 
the number of individuals within particular zones. We believe the plot 
data provide a more precise and robust assessment of how plant numbers 
have changed over time because the plots are sampled on an annual 
basis. These plots are designed to quantify the number of individuals 
in a repeatable manner and in well-defined, discrete areas.
    When data collected from one grazed plot are compared between 1991-
1996 and 1997-2002, these data suggest that the abundance of Astragalus 
lentiginosus var. piscinensis within this plot increased. During this 
same period, the number of A. l. var. piscinensis individuals decreased 
in two other plots where grazing occurred, and in two plots where 
grazing did not occur. We, therefore, believe the plot data do not 
provide definitive proof that grazing activities are compatible with 
stable populations of A. l. var. piscinensis. Within the zones referred 
to in the comment letter, the number of A. l. var. piscinensis 
individuals in the ungrazed zones has decreased in three zones and 
increased in one zone.
    Comment 21: One commenter suggested that the Fish Slough Area of 
Critical Environmental Concern (ACEC) should be replaced with an area 
that is managed under a habitat conservation plan (HCP).
    Our Response: HCPs cannot serve as a viable substitute for an ACEC 
because they exist for different reasons and are meant to serve 
different functions. An ACEC is a special land use classification that 
is designated by the BLM on lands they manage. HCPs, developed within 
the context of the Endangered Species Act, are documents that are 
completed when a non-Federal entity anticipates that incidental take of 
a listed animal species is likely to occur as a result of a project 
they propose. Because Astragalus lentiginosus var. piscinensis is a 
listed plant taxon, and the LADWP and California Department of Fish and 
Game (CDFG) have not determined their activities in Fish Slough are 
likely to result in the take of a listed animal, e.g., Owens pupfish 
(Cyprinodon radiosus), the development of a HCP is not warranted or 
appropriate at this time.
    Comment 22: A commenter noted that the proposed rule did not 
attempt to summarize all of the demographic data for all of the 
monitoring plots that occur on land owned by BLM and LADWP, creating a 
bias because some data are presented in the proposed rule and some are 
not.
    Our Response: Rules in the Federal Register that propose critical 
habitat are not intended to serve as a mechanism for reviewing all of 
the demographic data that may pertain to a species (e.g., the number of 
adult and juveniles that may be present at select locations across a 
species' range). We believe such a synthesis is more appropriate in a 
document that would evaluate the taxon's status, or that the 
demographic data be used to develop strategies that are designed to 
provide alternative management scenarios that will benefit the species. 
The process for designating critical habitat for listed species focuses 
on identifying those habitat-related features that are essential for 
the species' conservation, and we used the data that were appropriate 
to this task.
    Comment 23: One commenter suggests cattle grazing is repeatedly and 
wrongfully referred to as a factor that adversely affects Astragalus 
lentiginosus var. piscinensis.
    Our Response: The proposed rule does not suggest that all cattle 
grazing, no matter how light or intense, would adversely affect 
Astragalus lentiginosus var. piscinensis. Moderate to intense levels of 
livestock grazing have been documented to adversely affect at least one 
other Astragalus taxon in southern California (e.g., Astragalus 
monoensis (Sugden 1985)), and we believe it is likely that A. l. var. 
piscinensis would be adversely affected if moderate to large numbers of 
cattle were allowed to graze in Fish Slough. Such adverse effects would 
arise if listed plants were eaten by cattle, habitat used by pollinator 
species were trampled or crushed, or the amount of habitat that could 
be occupied by A. l. var. piscinensis was reduced. We have not 
discounted the possibility, however, that light levels of cattle 
grazing may be benign.
    Comment 24: A commenter suggested that the designation of critical 
habitat for Astragalus lentiginosus var. piscinensis implies that we 
are disproportionately preoccupied with the management of a single 
taxon.
    Our Response: Though this critical habitat designation process is 
limited to a single taxon, we agree that the management objectives for 
Fish Slough should consider all of the plant and animal communities in 
this area. We continue to support this general principle as it is 
described in the Owens Basin Wetland and Aquatic Species Recovery Plan, 
Inyo and Mono Counties, California (Service 1998). The recovery plan 
suggests a conservation area management plan for Fish Slough should be 
completed. We believe the development of such a plan would maximize the 
opportunity to manage all of the resources in Fish Slough in a more 
productive manner. Thus far, we have not developed a plan with the BLM 
or CDFG due to a lack of funds.
    Comment 25: A commenter noted that the proposed rule emphasized the 
need to ``ensure an adequate supply of pollinators.'' They asked how 
many pollinators are required to sustain Astragalus lentiginosus var. 
piscinensis, what the distribution of these insects needed to be, and 
what the requirements of these insects were.
    Our Response: Quantitative data that specifically pertain to the 
items listed by the commenter are not available for the species that 
pollinate Astragalus lentiginosus var. piscinensis. Such data are 
rarely available, and we have used the best available scientific data 
in our critical habitat designation. We believe the references cited in 
the rules proposing and designating critical habitat for A. l. var. 
piscinensis are directly applicable to the taxon and the needs of its 
pollinators, and provide a solid foundation for identifying the 
geographic boundary and PCEs that relate to the critical habitat unit.
    Comment 26: A commenter suggested that additional information was 
needed to more effectively manage Astragalus lentiginosus var. 
piscinensis and its habitat to understand how herbivory by native 
animals and water tables affected the taxon. They also thought it was 
important to identify the factors that caused the mortality, or 
affected the recruitment of, juvenile A. l. var. piscinensis 
individuals.
    Our Response: We agree that acquisition of such data would be 
extremely useful, and improve the

[[Page 33780]]

ability of land managers to conserve the listed plant taxon. We 
believe, however, that processes that historically occurred, e.g., 
water table fluctuations that may result from earthquakes, or herbivory 
by native animals, are normal and should continue, and that management 
of the Fish Slough area should focus on the restoration of natural 
ecosystem processes and functions.
Issue 2: Legal and Procedural
    Comment 27: A commenter challenged statements in the proposed rule 
that the designation of critical habitat is of little additional value 
for most listed species.
    Our Response: Although the designation of critical habitat does 
not, in and of itself, restrict human activities within an area or 
mandate any specific management or conservation actions, it does help 
focus Federal, Tribal, State, and private conservation and management 
efforts in such areas. A critical habitat designation benefits species 
conservation primarily by identifying important areas and describing 
the features within those areas that are essential to conservation of 
the species, thereby alerting public and private entities to the areas' 
importance. In addition, designating critical habitat may also provide 
some educational or informational benefits.
Issue 3: Economic Issues
    Comment 28: One commenter noted that many of the conservation 
efforts quantified in the DEA benefit multiple species, as well as 
unique alkaline meadows and significant scenic and cultural values. 
They stated it is not appropriate to allocate the total cost of 
conserving all of these biological resources to Astragalus lentiginosus 
var. piscinensis. Costs of consultations and conservation measures 
should be prorated by species that benefit from the critical habitat 
designation and other conservation actions.
    Our Response: To the extent possible, the economic analysis 
distinguishes costs related specifically to Astragalus lentiginosus 
var. piscinensis conservation where multiple species are subject of a 
single conservation effort or section 7 consultation. In the case that 
another species clearly drives a project modification or conservation 
effort, the associated costs are appropriately not attributed to A. l. 
var. piscinensis.
    In the case of administrative consultation costs, the DEA applies a 
standard cost model used to estimate a range of administrative costs of 
consultation (see Exhibit 4-1 in the DEA). These costs are considered 
representative of the potential range of costs typically experienced 
for a consultation regarding a single species. That is, the cost model 
assumes that consultations involving more than one species typically 
involve higher administrative costs. Accordingly, although 
consultations described in the DEA may involve multiple species, the 
administrative costs as estimated by applying this cost model are 
considered to be predictive of those costs due specifically to the 
designation of critical habitat for Astragalus lentiginosus var. 
piscinensis.
    Comment 29: One commenter felt that including the cost of managing 
the Fish Slough ACEC in the DEA overstates costs associated with 
critical habitat designation for Astragalus lentiginosus var. 
piscinensis. Every direct cost of managing the ACEC, except the 
propagation of A. l. var. piscinensis, benefits a number of species and 
should therefore not be considered critical habitat designation costs.
    Our Response: As mentioned above, for each consultation and 
conservation effort, the DEA attempts to identify costs specifically 
related to Astragalus lentiginosus var. piscinensis. In some instances, 
however, it is not possible to determine the relative contribution of 
the multiple causative factors to the implementation of a conservation 
effort. For example, management of the Fish Slough ACEC by the BLM, 
including posting signage to mark the presence of sensitive species, 
and prescribed burns to control vegetation, is undertaken to benefit 
all Fish Slough resources, including A. l. var. piscinensis. In these 
instances, the DEA presents the full cost of the conservation effort. 
Importantly, however, the DEA only includes the costs of these efforts 
within the proposed critical habitat designation for A. l. var. 
piscinensis. That is, it is assumed that ACEC management efforts 
outside of the proposed critical habitat designation are not undertaken 
to benefit A. l. var. piscinensis, and are therefore not included in 
the DEA.
    Comment 30: Another commenter stated that the DEA should include a 
rigorous analysis of the continued status of the Fish Slough as an 
ACEC. This commenter stated that the Astragalus lentiginosus var. 
piscinensis critical habitat designation constitutes a shift to a 
single species management objective rather than a multi-species 
management plan, and the designation will only increase the 
administrative and management burden of the ACEC area.
    Our Response: The DEA quantifies economic effects of the critical 
habitat designation for Astragalus lentiginosus var. piscinensis, along 
with the economic effects of protective measures taken as a result of 
the listing of A. l. var. piscinensis or other Federal, State, and 
local laws that aid habitat conservation in the areas proposed for 
critical habitat. This information is intended to assist the Secretary 
in determining whether the benefits of excluding particular areas from 
the designation outweigh the benefits of including those areas. It is, 
therefore, beyond the scope of the DEA to include an analysis of the 
benefit of preserving the Fish Slough region as an ACEC managed by the 
BLM.
    Comment 31: A commenter stated that a cumulative economic analysis 
should be developed to reflect the potential that critical habitat 
could be proposed or designated for the other 22 species identified in 
the Owens Basin recovery plan; i.e., the DEA should include evaluation 
of cumulative impacts of additional designations.
    Our Response: The Act does not require us to conduct assessments to 
quantify the cumulative cost of designating critical habitat in one 
general area. Also, we do not believe it is reasonable to calculate the 
potential cost of designating critical habitat for 22 species 
identified in the recovery plan because almost all of these species 
have not been listed as threatened or endangered, and we only designate 
critical habitat for listed species. Furthermore, for the three species 
that are listed and covered under the Owens Basin recovery plan, only 
one other species besides Astragalus lentiginosus var. piscinensis has 
designated critical habitat, i.e., the Owens tui chub (Gila bicolor 
snyderi) (August 5, 1985, 50 FR 31592), and there are no current plans 
to propose critical habitat for the Owens pupfish (Cyprinodon radiosus) 
as it was listed in 1967, which is before critical habitat amendments 
were added to the Act (August 5, 1985, 50 FR 31592). The southwestern 
willow flycatcher (Empidonax traillii extimus) does occur in Owens 
Valley, and critical habitat for the taxon has been proposed (October 
12, 2004, 69 FR 60705); an economic analysis will be prepared in 
conjunction with this listing process, and an estimate of the cost 
associated with the proposed critical habitat will be prepared. Also, 
we have already considered the costs of conducting other management 
activities; see Comment 29.
    Comment 32: Another commenter states the DEA failed to provide a 
balanced assessment of economic benefits and costs in relation to the 
proposed critical habitat designation.
    Our Response: Section 4(b)(2) of the Act requires the Secretary to 
designate critical habitat based on the best scientific data available, 
after taking into

[[Page 33781]]

consideration the economic impact, and any other relevant impact, of 
specifying any particular area as critical habitat. Our approach for 
estimating economic impacts includes both economic efficiency and 
distributional effects. The measurement of economic efficiency is based 
on the concept of opportunity costs, which are the value of goods and 
services foregone in order to comply with the effects of the 
designation (e.g., lost economic opportunity associated with 
restrictions on land use). Where data are available, the economic 
analyses do attempt to measure the net economic impact. For example, if 
the fencing of Astragalus lentiginosus var. piscinensis habitat to 
restrict motor vehicles results in an increase in the number of 
individuals visiting the site for wildlife viewing, then the analysis 
would attempt to net out the positive, offsetting economic impacts 
associated with their visits (e.g., impacts that would be associated 
with an increase in tourism spending). However, while this scenario 
remains a possibility, no data was found that would allow for the 
measurement of such an impact, nor was such information submitted 
during the public comment period.
    Most of the other benefit categories submitted by the commenter 
reflect broader social values, which are not the same as economic 
impacts. While the Secretary must consider economic and other relevant 
impacts as part of the final decision-making process under section 
4(b)(2) of the Act, the Act explicitly states that it is the 
government's policy to conserve all threatened and endangered species 
and the ecosystems upon which they depend. Thus, we believe that 
explicit consideration of broader social values for the species and its 
habitat, beyond the more traditionally defined economic impacts, is not 
necessary as Congress has already clarified the social importance. As a 
practical matter, we note the difficulty in being able to develop 
credible estimates of such values as they are not readily observed 
through typical market transactions. In sum, we believe that society 
places the utmost value on conserving any and all threatened and 
endangered species and the habitats upon which they depend, and thus 
the required considerations under section 4(b)(2) of the Act occur in 
light of this basic premise.
    Comment 33: One commenter stated that indirect costs associated 
with reductions in grazing opportunity should not be included in the 
DEA. The reductions in grazing, along with installation and maintenance 
of the grazing exclosure in Fish Slough, have already been instituted 
and are therefore not affected by critical habitat designation. The 
commenter further notes that these conservation efforts are independent 
landowner decisions and not a mandate under the Act and should, 
therefore, not be considered in the DEA. The cost of this conservation 
effort should not be included as a post-designation cost.
    Our Response: The DEA assesses not only the direct economic effects 
of the critical habitat designation, but also the economic effects of 
protective measures taken as a result of the listing of Astragalus 
lentiginosus var. piscinensis or other Federal, State, and local laws 
that also aid habitat conservation in the areas proposed for critical 
habitat designation. The reductions in grazing were a result of 
conversations regarding management of the Fish Slough between the 
lessee of the grazing lands, LADWP (the landowner), and the other 
managing agencies of the Fish Slough (BLM and CDFG). This reduction in 
grazing activity was undertaken to benefit the multiple resources of 
the Fish Slough, including A. l. var. piscinensis, and is therefore 
included in the DEA.
    Comment 34: The DEA seems to imply that the LADWP will bear all the 
costs of maintaining the 80-ac (32-ha) grazing exclosure. The lessee 
has been responsible for much of the costs of maintenance, materials, 
and labor. The following components should be added to predesignation 
impacts: Fencing of the LADWP lease in cooperation with the lessee, 
with materials furnished by LADWP; and the lessee's cost of the 
installment of approximately 3.5 mi (5.6 km) of perimeter and cross 
fencing between 1990 and 1994 for better livestock control and 
vegetation management.
    Our Response: As detailed in sections 4.1.2 and 4.2.2 of the DEA, 
impacts to livestock grazing activities are expected to be incurred by 
both the LADWP for fencing and fence maintenance, and the lessee for 
precluding particular acres of lands from grazing activities. In the 
case that the lessee provides the labor to maintain the exclosure, 
costs to the lessee associated with Astragalus lentiginosus var. 
piscinensis conservation efforts is underestimated. The DEA, however, 
only quantifies impacts of A. l. var. piscinensis conservation efforts 
occurring from the time of the species' listing in 1998 through 20 
years from the final critical habitat designation in 2005. Impacts 
incurred by the lessee between 1990 and 1994 are, therefore, not 
included in the DEA.
    Comment 35: A commenter stated that, following construction of the 
grazing exclosure, the lessee found it necessary to develop a whole 
ranch vegetation management plan to match vegetation requirements with 
the health requirements of the livestock. This effort cost $15,000 to 
$20,000 in consultant fees and meetings. In addition, the lessee had to 
lease additional facilities to ship, receive, and handle livestock 
during the period when Astragalus lentiginosus var. piscinensis 
flowers. These increased production costs for the ranch operation 
should also be included in the analysis.
    Our Response: Lone Tree Cattle Company was contacted following the 
public comment period for the DEA to discuss expected increased 
production costs as a result of Astragalus lentiginosus var. 
piscinensis conservation efforts on its grazing lease. As a result of 
this communication, the revised economic analysis includes additional 
economic impacts to Lone Tree Cattle Company. An additional $15,000 to 
$20,000 is added to the assessment of pre-designation costs to account 
for the development of a vegetation management plan. The costs of 
implementing the vegetation management are speculative at this time as 
the plan has not yet been adopted, and BLM review of the plan is the 
subject of a future hearing by the Department of the Interior (DOI)'s 
Office of Hearing and Appeals. Additionally, the grazing lessee 
acquired an additional lease specifically to avoid grazing on the Fish 
Slough ACEC during periods when A. l. var. piscinensis blooms. This 
resulted in increased costs to the grazing operation of $7,600 to 
$11,000 for purchase of materials for fencing and corral construction, 
and $500 per year for the cost of the additional lease. Potential labor 
costs of construction and maintenance of fencing and corrals on the new 
lease is unknown, but are also expected to increase costs to the 
lessee's grazing operation (Ken Zimmerman, Lone Tree Cattle Company, 
pers. comm. 2005).
    Comment 36: Section 3.2.2 of the DEA should caveat that 
restrictions on grazing in Fish Slough are pending a hearing with the 
DOI, Office of Hearing and Appeals, to address the appropriateness of 
the increased permit restrictions. Further, the lessee is currently 
grazing 60 head of cattle, not 40, as stated in the DEA.
    Our Response: The revised economic analysis will reflect the 
information in the comment letter. The DEA estimates the value per acre 
of lost grazing land based on the economically viable utilization of 
these lands. That is, the number of head of cattle currently grazed is 
divided by the total acreage

[[Page 33782]]

available for grazing and multiplied by the value per head of cattle to 
determine the value per acre of grazing land. This is then applied to 
the 80 ac (32 ha) of land lost to grazing due to the construction of 
the cattle exclosure to protect Astragalus lentiginosus var. 
piscinensis. The DEA incorrectly stated that the lessee grazed 40 head 
instead of the current 60 head. This changes the economically viable 
number of head per acre from 0.02 to 0.03. Therefore, the lost head per 
year on the 80 ac (32 ha) of land lost to grazing increases from 1.6 to 
2.4 head. Applying the value per head of cattle of $1,114, as discussed 
in section 4.1.2 of the DEA, this correction results in a change of 
annual losses to the lessee of $2,760, as opposed to the $1,780 
previously reported in the DEA.
    Comment 37: The Five Bridges Aggregate Pit is located in the 
southern portion of Fish Slough and is subject to active mining 
operations. Plans to expand the pit have resulted in a requirement to 
conduct groundwater monitoring activities. The monitoring activities 
will be completed, regardless of the proximity of the pit to the 
critical habitat designation. A commenter suggested that because the 
groundwater monitoring will benefit a number of species, the costs of 
the monitoring activities should be accordingly prorated. Additionally, 
a reduction in groundwater levels will affect the production of 
downstream mining activities and downstream water extraction; costs 
should also be prorated to account for these human benefits.
    Our Response: Our major concern regarding the potential affect of 
the mining activity and a proposed expansion of the pit on Astragalus 
lentiginosus var. piscinensis was the affect of future mining on 
groundwater levels within Fish Slough. Establishment of a groundwater 
monitoring system using existing and new wells was undertaken, in part, 
to ensure sensitive species, including A. l. var. piscinensis, would 
not be subject to fluctuating groundwater levels.
    The DEA acknowledges that multiple factors contribute to the need 
for mitigation of groundwater effects of the mine operations, including 
California Environmental Quality Act (CEQA) compliance, California 
Surface Mining and Reclamation Act compliance, and general 
consideration of the Fish Slough ACEC. The DEA considers not only the 
direct economic effects of the critical habitat designation, but also 
the economic effects of protective measures taken as a result of the 
listing of Astragalus lentiginosus var. piscinensis or other Federal, 
State, and local laws that aid habitat conservation in the areas 
proposed for critical habitat designation. The costs of groundwater 
monitoring are accordingly included in the DEA, with the recognition 
that this conservation effort would likely be undertaken absent 
consideration for the A. l. var. piscinensis and its habitat. Of note, 
however, the final rule excludes from critical habitat designation the 
area of the Five Bridges Aggregate Pit proposed for designation because 
this area is not occupied by A. l. var. piscinensis and is not 
considered essential to the conservation of the taxon.
    Comment 38: One commenter requested that the data used for 
calculation of costs should be included in the DEA so that the methods 
can be evaluated.
    Our Response: The source of each economic impact as described in 
the DEA is cited within the text or as a footnote to the text. In 
general, costs of conservation efforts were gathered by using budgetary 
information from participating agencies, by consulting market data, and 
by extrapolating from the costs of similar past activities. Standard 
methods for inflating past costs and discounting future costs were 
employed in order to compare economic impacts occurring in different 
time periods.
    Comment 39: A commenter stated that the use of the term ``volunteer 
routes'' in the DEA is inappropriate, and highlighted that these routes 
are illegal and are an increasing problem in the area. The comment 
offered that these routes should be identified as ``illegal routes'' 
throughout the DEA.
    Our Response: The BLM uses the term ``volunteer routes'' to 
describe those routes created through the use of illegal motorized off-
highway vehicles (OHV) off of designated routes. The DEA acknowledges 
the illegality of this activity but uses the term for consistency in 
describing BLM management of the region.
    Comment 40: One commenter stated that the DEA should highlight that 
the LADWP is a municipality with fee title to the lands in which 
agricultural and ranch leases are administered. This should be made 
clear, as the public often believes LADWP lands to be public lands.
    Our Response: The revised economic analysis will clarify this 
point.
    Comment 41: A commenter stated that he spent a number of hours 
searching for accreditations and references of Industrial Economics, 
Inc., the group that prepared the DEA for the Service, but was unable 
to establish its credentials.
    Our Response: Industrial Economics, Incorporated (IEc), founded in 
1981, is an 80-person economic and policy consultancy that provides 
analytic services to government decision-makers and regulators, trade 
associations, private entities, and international organizations. IEc 
has prepared economic analyses of critical habitat designations for 
more than 60 species. Particular to this analysis, IEc has expertise in 
analyses of the regional and national economic effects of environmental 
regulation, including significant experience analyzing issues related 
to water use and management, grazing, and wildlife management in the 
western United States.
    Comment 42: One commenter stated it is not appropriate to include 
``pre-designation'' cost estimates as part of the economic analysis 
associated with the critical habitat designation, because these costs 
are associated with the listing of Astragalus lentiginosus var. 
piscinensis, and not with the critical habitat designation process for 
the species.
    Our Response: The primary purpose of the economic analysis is to 
estimate the potential economic impacts associated with the designation 
of critical habitat for Astragalus lentiginosus var. piscinensis. The 
Act defines critical habitat to mean those specific areas that are 
essential to the conservation of the species, and defines conservation 
to mean the use of all methods and procedures necessary to bring any 
endangered species or threatened species to the point at which the 
measures of the Act are no longer necessary. Thus, we interpret that 
the economic analysis should include all of the economic impacts 
associated with the conservation of the species, which may include some 
of the effects associated with listing because the species was listed 
prior to the proposed designation of critical habitat. We note that the 
Act generally requires critical habitat to be designated at the time of 
listing, and had we conducted an economic analysis at that time, the 
impacts associated with listing would not be readily distinguishable 
from those associated with critical habitat designation.
    The DEA discusses other relevant regulations and protection efforts 
for other listed species that included Astragalus lentiginosus var. 
piscinensis and its habitat. In general, the analysis errs 
conservatively in order to make certain that economic effects have not 
been missed. It treats as ``co-extensive'' other Federal and State 
requirements that may result in overlapping protection measures (e.g., 
CEQA) for A. l. var. piscinensis. In some cases, however, non-habitat-
related regulations

[[Page 33783]]

will limit land uses activities within critical habitat in ways that 
will directly or indirectly benefit A. l. var. piscinensis or its 
habitat (e.g., local zoning ordinances). These impacts were not 
considered to be ``co-extensive'' with A. l. var. piscinensis listing 
or designation for two reasons. First, such impacts would occur even if 
A. l. var. piscinensis was not listed. Second, we must be able to 
differentiate economic impacts solely associated with the conservation 
of A. l. var. piscinensis and its habitat in order to understand 
whether the benefit of excluding any particular area from A. l. var. 
piscinensis critical habitat outweighs the benefit of including the 
area.
    Comment 43: A commenter requested that the DEA be reissued and 
amended to include cost estimates that reflect the economic value of 
biological attributes that may be beneficial, i.e., nitrogen fixation 
services. The commenter stated that while it may not be possible to 
calculate a precise economic value for ecosystem functions such as 
nitrogen fixation, ecosystem functions and services should at least be 
mentioned as a benefit of species conservation.
    Our Response: We recognize that the various functions of an 
ecosystem have value, but we are unable to put an economic value on 
such biological attributes. We believe that the benefits of proposed 
critical habitat are best expressed in biological terms that can be 
weighed against the expected costs impacts of the rulemaking. We must 
remember that the critical habitat economic analysis helps the 
Secretary decide whether to exclude areas, and whether the benefits of 
exclusion outweigh the benefits of inclusion. So, we are looking at the 
burden on the public of the regulation, and whether any areas have a 
disproportionate burden. We balance these burdens against the benefits 
of including that area--including the benefits of the area to the 
species and the benefits of the species' existence and conservation. We 
do this in the section 4(b)(2) discussion in our rules.

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for her failure to adopt 
regulation consistent with the agency's comments or petition.'' We did 
not receive any comments from CDFG or any other State agency. 
Therefore, we have not developed a written justification that pertains 
to section 4(i) of the Act.

Summary of Changes From the Proposed Rule

    One area that was included in the proposed rule for Astragalus 
lentiginosus var. piscinensis was not included in the final critical 
habitat designation. This area consists of the 483 ac (195 ha) area 
south of the southern McNally Canal; this land is not privately owned, 
and instead belongs to the LADWP. After we published the proposed rule, 
we acquired a variety of documents that pertain to the Five Bridges 
Aggregate Pit (mistakenly called the ``Desert Aggregate Mine'' in the 
proposed rule), which is operated by the Desert Aggregates company in 
the 483 ac (195 ha) parcel. The County of Inyo issued a Draft and Final 
Environmental Impact Report in April and July, 2004, respectively, in 
response to a proposal by Desert Aggregates to expand mining operations 
(Secor International Incorporated and Lilburn Corporation 2004; Lilburn 
Corporation 2004). In 2004, the County of Inyo issued a conditional use 
permit that authorizes various activities associated with the mine 
expansion. The expansion of the mine will include new ground-disturbing 
activities in areas that have not been previously mined, and dewatering 
activities that facilitate extraction of sand and gravel deposits 
(Secor International Incorporated and Lilburn Corporation 2004).
    Dewatering activities at the mine historically have been done by 
constructing a perimeter ditch adjacent to a pit to be excavated, 
constructing a sump to collect water from the perimeter ditch, and 
pumping groundwater from the ditch or sump as the local water table 
intersected the ditch or sump. In the past, the water pumped from the 
sump was discharged into a ditch that is immediately north of, and 
parallel to, the Owens River. Desert Aggregates estimates that ground 
water extraction rates during previous mining activities ranged from 
approximately 80,000 to 500,000 gallons per day (302,832 to 1,892,705 
liters per day) (Secor International Incorporated and Lilburn 
Corporation 2004). Future dewatering activities at the mine will be 
similar to those done in the past, except that water pumped from sumps 
will be directed to recharge basins that will be constructed during 
different phases of the mine expansion project. The recharge basins 
will be located at various locations on the mine property.
    Habitat surveys that were carried out in conjunction with the 
aforementioned environmental impact reports provide documentation on 
the character of habitat within the 483-ac (195-ha) parcel south of the 
southern McNally Canal. Future mining activities within the parcel are 
likely to result in the elimination of up to 48-ac (19-ha) of alkaline 
meadow habitat (Secor International Incorporated and Lilburn 
Corporation 2004). The habitat surveys indicate that Astragalus 
lentiginosus var. piscinensis does not occur in this alkaline meadow 
habitat, these meadows are drier than other meadows that are occupied 
by A. l. var. piscinensis, and habitat quality within the remaining 
portion of the 483-ac (195-ha) parcel has been degraded by historical 
pumping and water spreading practices, livestock grazing, or 
agricultural activities (Pavlik 1998, 1999; The Twining Laboratories 
and ESR Inc. 2004).
    The 483-ac (195-ha) parcel south of the southern McNally Canal 
lacks three of the four PCEs that are used to identify critical 
habitat, e.g., the arid nature of the soils throughout the parcel 
suggests the groundwater table is more than 19 to 60 in (48 to 152 cm) 
below the land surface (PCE 1), the plant associations that co-occur 
with Astragalus lentiginosus var. piscinensis are absent (PCE 2), and 
the available documentation suggest that the hydrologic conditions that 
provide suitable periods of soil moisture and chemistry for A. l. var. 
piscinensis germination, growth, reproduction, and dispersal do not 
exist (PCE 4). Astragalus lentiginosus var. piscinensis does not occupy 
the 483-ac (195-ha) parcel, and the habitat in this area is highly 
degraded by a number of previous land management activities. These 
factors, in combination, have led us to conclude that the 483-ac (195-
ha) parcel south of the southern McNally Canal is not essential to the 
conservation of A. l. var. piscinensis, and it is therefore not 
included in this final critical habitat designation.

Critical Habitat

    Critical habitat is defined in section 3 of the Act 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 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

[[Page 33784]]

listing under the Act is no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species must first have features that 
are ``essential to the conservation of the species.'' Critical habitat 
designations identify, to the extent known and using the best 
scientific and commercial data available, habitat areas that provide 
essential life cycle needs of the species (i.e., areas on which are 
found the primary constituent elements (PCEs), as defined at 50 CFR 
424.12(b)).
    Occupied habitat may be included in critical habitat only if the 
essential features thereon may require special management or 
protection. Thus, we do not include areas where existing management is 
sufficient to conserve the species. As discussed below, such areas may 
also be excluded from critical habitat pursuant to section 4(b)(2).
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographical area presently occupied 
by a species only when a designation limited to its present range would 
be inadequate to ensure the conservation of the species'' (50 CFR 
424.12(e)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species so require, we will not designate critical habitat in areas 
outside the geographic area occupied by the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
and section 515 of the Treasury and General Government Appropriations 
Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and our 
associated Information Quality Guidelines, provide criteria, establish 
procedures, and provide guidance to ensure that our decisions represent 
the best scientific and commercial data available. They require Service 
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 is generally the listing 
package for the species. Additional information sources include the 
recovery plan for the species, articles in peer-reviewed journals, 
conservation plans developed by States and counties, scientific status 
surveys and studies, biological assessments, or other unpublished 
materials and expert opinion or personal knowledge. All information is 
used in accordance with the provisions of section 515 of the Treasury 
and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658) and our associated Information Quality Guidelines.
    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 conservation 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 the conservation 
of the species.
    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, HCPs, or other species 
conservation planning efforts if new information available to these 
planning efforts calls for a different outcome.

Methods

    As required by section 4(b)(2) of the Act, we used the best 
scientific and commercial information available in determining areas 
that are essential to the conservation of Astragalus lentiginosus var. 
piscinensis. This included information from our own documents on this 
plant and related taxa, and documentation provided by staff from BLM 
and LADWP. We considered information contained within BLM (1984); Odion 
et al. (1991); Ferren (1991a); Mazer and Travers (1992); Danskin 
(1998); and MHA (2001), in addition to other peer-reviewed journal 
articles, book excerpts, and unpublished biological documents regarding 
A. l. var. piscinensis, similar species, and more generalized issues of 
conservation biology. We also conducted two site visits to Fish Slough. 
We met and routinely corresponded with staff from the BLM, LADWP, and 
CDFG to solicit their views on various management aspects involving A. 
l. var. piscinensis. We also participated in several discussions with 
botanical and hydrologic experts familiar with Fish Slough, and factors 
that are likely to affect the habitat that A. l. var. piscinensis 
occupies.

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 are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features (PCEs) 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 breeding, 
reproduction, and rearing (or development) of offspring; and habitats 
that are protected from disturbance or are representative of the 
historic geographical and ecological distributions of a species.
    All areas designated as critical habitat for Astragalus 
lentiginosus var. piscinensis are within the species' historical range 
and contain one or more of the biological and physical features (PCEs) 
identified as essential for the conservation of the species. The PCEs 
essential to the conservation of A. l. var. piscinensis habitat are 
based on specific components that are described below.

Space for Individual and Population Growth and for Normal Behavior

    The alkaline flats where Astragalus lentiginosus var. piscinensis 
occurs are typically dominated by a Spartina--Sporobolis (cordgrass--
dropseed) plant association. Astragalus lentiginosus var. piscinensis 
may also occur where a

[[Page 33785]]

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).

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

    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 aquatic torriorthents-aquent complex with 0 to 
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 to 60 inches (in) (48 to 152 centimeters (cm)) 
below the land surface (Odion et al. 1991). In areas where water tables 
are more than 6.6 ft (2.0 m) deep, capillary action is insufficient to 
promote and maintain the development of alkaline soils (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, BLM, pers. comm. 2004).
    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 13.8 to 15.7 in (35 to 40 cm) 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 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 to 40.5 in (47.0 to 102.9 cm) and 
15.2 to 23.6 in (38.6 to 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 groundwater exists to 
maintain the wetland and riparian habitats that are present in Fish 
Slough.
    The sources of 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 windblown sand (Department of Water 
Resources 1964). These fractures act as conduits that convey 
groundwater 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 precipitation deposition. 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, groundwater 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 groundwater 
present in the local area (Andy Zdon, TEAM Engineering and Management, 
Inc., pers. comm. 2004).
    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 
A.l. 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.

Sites for Breeding, Reproduction, and Rearing (or Development) of 
Offspring

    Mazer and Travers (1992), in examining the pollination ecology of 
Astragalus lentiginosus var. piscinensis, found that A.l. var. 
piscinensis is dependent on insects for flower pollination and 
fertilization, and the taxon is not capable of producing fruits in the 
absence of pollinators. Thus, the presence of pollinator populations is 
essential to the conservation of the species. Bumblebees in the family 
Apidae were observed to pollinate A.l. var. piscinensis flowers on 
three occasions. Bees in the family Megachilidae are also believed to 
be important pollinator insects for A. brauntonii (Fotheringham and 
Keeley 1998), and various bee taxa in this family may occur in and 
adjacent to Fish Slough. Unless a specific endemic

[[Page 33786]]

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).
    Bumblebees usually nest in abandoned rodent burrows or bird nests 
(Thorp et al. 1983), 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, and therefore it is unlikely that these pollinators live 
there. 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), and these plants 
are likely pollinated by bees in the surrounding uplands. Thus, we have 
determined that inclusion of currently unoccupied upland habitat within 
3,280 ft (1,000 m) of the alkaline habitat occupied by A.l. var. 
piscinensis that provides nesting and cover sites for pollinators is 
essential to the conservation of A.l. var. piscinensis.
    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 328 to 984 ft (100 to 300 m) to 
pollinate plants. Studies by Steffan-Dewenter and Tscharntke (2000) 
have demonstrated that it is possible for bees to fly at least 3,280 ft 
(1,000 m) to pollinate flowers, and at least one study suggests that 
bumblebees may forage many kilometers from a colony (Heinrich 1979).
    There are a few studies that provide insight into how alterations 
to habitat used by bees may affect the host plants they visit. Studies 
by Steffan-Dewenter and Tscharntke (2000) indicate that if pollinator 
habitat within 3,280 ft (1,000 m) of some host plants is eliminated, 
seed set of some plant species may be decreased by as much as 50 
percent. One study that was done in California noted that ``pollination 
services provided by native bee communities in California strongly 
depended on the proportion of natural upland habitat within 1-2.5 km of 
the farm site'' (Kremen et al. 2004). Additional studies also suggest 
that the degradation of habitat used by pollinator species is likely to 
adversely affect the abundance of the species they pollinate 
(Jennersten 1988; Rathcke and Jules 1993).
    The area we are designating 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 PCEs 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 groundwater table that is 19 to 60 in (48 to 152 cm) 
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) The presence of pollinator populations for 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 PCEs outlined above do not have to occur simultaneously 
within the unit to constitute critical habitat for Astragalus 
lentiginosus var. piscinensis. We determined these PCEs 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.

Criteria Used To Identify Critical Habitat

    The criteria used to identify the 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 
occur, 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 plant's survival and persistence.
    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 
(Paula Hubbard, LADWP, pers. comm. 2003). Considering this, we conclude 
that the geographic range of A.l. var. piscinensis is limited to those 
disjunct occurrences within a 6.0-mi (9.6-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 designating a 
single critical habitat unit that is not separated into smaller, 
separate units. The critical habitat unit being designated for A.l. 
var. piscinensis includes virtually all of the locations where the 
taxon has been documented to occur.
    With the exception of one small area described below, the entire 
geographic area that is or was known to be occupied by the Astragalus 
lentiginosus var. piscinensis is being designated as critical habitat 
because the taxon occupies a small geographic area, and that area is 
occupied by plants that are likely to function as one cohesive 
population. These areas are all considered essential to the 
conservation of the species, in accordance with section 3(5)(C) of the 
Act.
    In the proposed critical habitat rule, we determined that one 
privately-owned, 49-acre (20-ha) parcel (which is different than the 
48-ac (19-ha) alkaline meadow within the 483-ac (195-ha) parcel south 
of the southern McNally Canal) within the historic range of Astragalus 
lentiginosus var. piscinensis was 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.'' In the 
proposed rule, we stated it was highly unlikely that this area was 
currently occupied by the taxon. After the proposed rule was published, 
we discovered that the area contained eight individuals in 1992, and 
one individual in 2000; these numbers represent less than one percent 
of the total number of A.l. var. piscinensis that were documented to 
occur in the 1992 and 2000 surveys that were done for the taxon. 
Because the 49-acre (20-ha) privately owned parcel contains less than 1 
percent of the total number of A.l. var. piscinensis that are known to 
occur, it has little alkaline soil habitat, and the parcel is not a 
location where habitat enhancement activities are likely to occur 
within the foreseeable future, we continue to find that the parcel is 
not essential to conservation of the taxon and it is not included in 
the final critical habitat designation.
    We are also not designating the area south of the southern McNally 
Canal, and which is owned by the LADWP, as critical habitat because 
A.l. var. piscinensis does not occupy it, , the habitat is highly 
degraded and is not suitable for recolonization or restoration 
activities, and does not provide pollinator habitat that would 
contribute in any significant way to the conservation of nearby 
occurrences.
    The critical habitat unit is designed to encompass a large enough 
area to

[[Page 33787]]

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 create additional habitat for 
the taxon. Upland areas within 3,280 ft (1,000 m) of the alkaline 
habitat also provide nest sites and cover for pollinators, and are 
important to help minimize the potential of introducing new nonnative 
plant species that may adversely affect A.l. var. piscinensis, and to 
control nonnative plant species already present. Because these areas 
are essential for conservation of the species, we have included them in 
the designated 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 A. l. 
var. piscinensis is found, and an upland zone inhabited by the plant's 
pollinators. We believe, however, that the long-term maintenance and 
conservation 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 may reduce or eliminate those physical 
features essential for the species' conservation.
    Delineating a critical habitat unit for Astragalus lentiginosus 
var. piscinensis that includes the hydrologic system that supports it 
poses a challenge because the source(s) of the water that issues from 
the springs in Fish Slough is not precisely known, and the location of 
the groundwater 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 PCE in the ``Primary Constituent Element'' section of 
this final rule.
    When determining critical habitat boundaries, we made every effort 
to avoid the designation of developed areas such as buildings, paved 
areas, and other structures that lack PCEs for Astragalus lentiginosus 
var. piscinensis. Any such structures inadvertently left inside 
critical habitat boundaries are not considered part of the critical 
habitat unit. This also applies to the land on which such structures 
sit directly. Therefore, Federal actions limited to these areas would 
not trigger section 7 consultations, unless they affect the species 
and/or primary constituent elements in adjacent critical habitat.
    A brief discussion of the area designated as critical habitat is 
provided in the unit description below. Additional detailed 
documentation concerning the essential nature of this area is contained 
in our supporting record for this rulemaking.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the physical 
and biological features determined to be essential for conservation may 
require special management considerations or protection. As we 
undertake the process of designating critical habitat for a species, we 
first evaluate lands defined by those physical and biological features 
essential to the conservation of the species for inclusion in the 
designation pursuant to section 3(5)(A) of the Act. Secondly, we then 
evaluate lands defined by those features to assess whether they may 
require special management considerations or protection.
    In 1982, BLM established the Fish Slough ACEC in an effort to 
provide protection for the federally endangered Owens pupfish, several 
rare plant taxa including Astragalus lentiginosus var. piscinensis, and 
the wetland and riparian habitats upon which these species depend. The 
Fish Slough ACEC has three zones (BLM 1984). The designated critical 
habitat unit is predominantly located within Zone 1 of the ACEC, 
includes a very small portion of Zone 2, and also extends slightly 
beyond the southern boundary of the ACEC. The land in Zone 1 is owned 
by BLM, CDFG, LADWP, and one private landowner. The portion of the 
designated critical habitat unit in Zone 2, or in the area immediately 
south of the ACEC, is owned by BLM or LADWP. A management plan for the 
ACEC was finalized in 1984, but the plan has not been revised since it 
was completed.
    Previously identified threats to Astragalus lentiginosus var. 
piscinensis include the presence of roads, effects related to the use 
of OHV, effects related to cattle grazing, and effects from herbivory 
by native vertebrates and insects (Service 1998). A potential threat to 
A. l. var. piscinensis not previously identified in other documents 
includes competition with, or displacement by, nonnative plant species 
(P. Hubbard, LADWP, pers. comm. 2003). The modification of wetland 
habitats that results from groundwater pumping or water diversion 
activities altering the surface and underground hydrology of Fish 
Slough is also a threat to the species (Service 1998).
    The suite of threats affecting 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 BLM, LADWP, and CDFG on various land 
management challenges that 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 threats related to the 
enhancement of fisheries (construction of ponds, impoundments, roads, 
and ditches) may have had the greatest effect on the Fish Slough 
ecosystem because they modified the hydrological conditions that 
historically occurred in Fish Slough.
    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 
Astragalus lentiginosus 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. 
Modifications to the slough environment from changes in the 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 species, 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

[[Page 33788]]

the past decade. A downward trend in the species' abundance during the 
past decade suggests that, despite the ongoing efforts by the relevant 
land management agencies, additional factors need to be addressed to 
reverse the decline in the status of A. l. var. piscinensis.
    We believe that the designated critical habitat unit may require 
special management considerations to maintain the identified primary 
constituent elements. These include the potential need to respond to 
the following:
    (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, OHV use, 
levels of cattle grazing that could result in increased soil 
compaction, road construction and maintenance activities, and water 
diversion 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 that would increase soil compaction, use of 
heavy-wheeled vehicles or OHVs (including motorcycles and all terrain 
vehicles), pesticide use, and incompatible recreational activities; and
    (5) Management activities, particularly those that involve cattle 
grazing and road maintenance, which have the potential to introduce new 
nonnative plant species that may compete with or displace Astragalus 
lentiginosus var. piscinensis.

Critical Habitat Designation

    We are designating one unit as critical habitat for the Astragalus 
lentiginosus var. piscinensis. The critical habitat area described 
below constitutes our best assessment at this time of the areas 
essential for the conservation of the A. l. var. piscinensis containing 
the essential physical and biological features that may require special 
management considerations or protection.
    The single critical habitat unit for Astragalus lentiginosus var. 
piscinensis encompasses approximately 8,007 ac (3,240 ha). Within the 
designated unit, the city of Los Angeles owns four separate parcels 
that total 2,440 ac (987 ha). CDFG owns a single 166 ac (67 ha) parcel 
in the designated critical habitat unit. The remaining land within the 
unit is owned by BLM and comprises 5,401 ac (2,186 ha). The approximate 
size of the different land ownership areas within the designated 
critical habitat unit is shown in Table 1. Lands managed by BLM and 
LADWP comprise 68 and 30 percent of the total unit, respectively, with 
State lands comprising approximately 2 percent.

 Table 1.--Approximate Areas in Acres (ac) (Hectares (ha)) of Designated Critical Habitat for Astragalus lentiginosus var. piscinensis by Land Ownership
--------------------------------------------------------------------------------------------------------------------------------------------------------
   Critical habitat unit name          City of Los Angeles           State of California              Federal (BLM)                     Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fish Slough unit................  2,440 ac (987 ha)             166 ac (67 ha)                5,401 ac (2,185 ha)           8,007 ac (3,240 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The land within the critical habitat unit contains at least ninety-
nine percent of the known occurrences of A. l. var. piscinensis, and we 
consider these occurrences to be essential to the conservation of the 
listed taxon. The critical habitat unit also contains (1) the alkaline 
habitat occupied by this taxon, (2) the Spartina-Sporobolis plant 
association and Chrysothamnus albidus that is present in the transition 
zone between the Spartina-Sporobolis and Chrysothamnus albidus--
Distichlis plant associations, and (3) some of the hydrologic features 
that we believe are necessary to promote the persistence and successful 
recruitment of the species. The critical habitat unit also includes 
unoccupied upland areas that provide cover sites for insect 
pollinators.
    The unit boundary overlaps the boundary of Inyo and Mono Counties 
in California. The northernmost boundary of the designated 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 designated critical habitat unit abuts, and is 
in direct contact with, the southern McNally Canal. The eastern and 
western boundaries of the unit are parallel to, overlap, or are 
adjacent to the eastern and western boundaries of Zone 1 of BLM's Fish 
Slough ACEC, respectively.

Section 7 Consultation

    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, and to ensure that 
actions they fund, authorize, or carry out are not likely to destroy or 
adversely modify critical habitat. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. We are currently reviewing the regulatory definition of 
adverse modification in relation to the conservation of the species.
    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. 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)). 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

[[Page 33789]]

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 their 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.
    Federal activities 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 U.S. Army Corps of 
Engineers (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 from Federal agencies (e.g., Federal Highway 
Administration or Natural Resources Conservation Service), will also be 
subject to the section 7 consultation process. Federal actions not 
affecting listed species or critical habitat and 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 may also jeopardize the continued existence of the Astragalus 
lentiginosus var. piscinensis. Federal activities that, when carried 
out, may adversely affect critical habitat for the A. l. var. 
piscinensis 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 nonnative plant 
species to Fish Slough or promote the spread of nonnative plant species 
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 or private lands that require permits 
from Federal agencies or use Federal funding;
    (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, which may alter management practices for 
critical habitat.

Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 
4(b)(2) of the Act

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographic area occupied by the species on which are 
found those physical and biological features (i) essential to the 
conservation of the species and (ii) which may require special 
management considerations or protection. Therefore, areas within the 
geographic area occupied by the species that do not contain the 
features essential for the conservation of the species are not, by 
definition, critical habitat. Similarly, areas within the geographic 
area occupied by the species containing features essential for the 
conservation of the species that do not require special management 
considerations or protection also are not, by definition, critical 
habitat. To determine whether essential features within an area require 
special management, we determine if the essential features generally 
require special management to address applicable threats. If those 
features do not require special management, or if they do in general 
but not for the particular area in question because of the existence of 
an adequate management plan or for some other reason, then the area 
does not require special management.
    We consider a current plan to provide adequate management or 
protection if it meets three criteria: (1) The plan is complete and 
provides a conservation benefit to the species (i.e., the plan must 
maintain or provide for an increase in the species' population, or the 
enhancement or restoration of its habitat within the area covered by 
the plan); (2) the plan provides assurances that the conservation 
management strategies and actions will be implemented (i.e., those 
responsible for implementing the plan are capable of accomplishing the 
objectives, and have an implementation schedule or adequate funding for 
implementing the management plan); and (3) the plan provides assurances 
that the conservation strategies and measures will be effective (i.e., 
it identifies biological goals, has provisions for reporting progress, 
and is of a duration sufficient to implement the plan and achieve the 
plan's goals and objectives).
    Further, 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 after taking into consideration the economic impact, 
national security impact, 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 that the benefits of 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.
    In our critical habitat designations, we use both the provisions 
outlined in sections 3(5)(A) and 4(b)(2) of the Act to evaluate those 
specific areas that we are considering including in a proposal to 
designate critical habitat as well as for those areas that are formally 
proposed for designation as critical habitat. Lands we have found do 
not meet the definition of critical habitat under section 3(5)(A) or 
have excluded pursuant to section 4(b)(2) include those covered by the 
following types of plans if they provide assurances that the

[[Page 33790]]

conservation measures they outline will be implemented, effective, and 
cover the species: (1) Legally operative HCPs; (2) draft HCPs that have 
undergone public review and comment (i.e., pending HCPs); (3) Tribal 
conservation plans; (4) State conservation plans; and (5) National 
Wildlife Refuge System Comprehensive Conservation Plans.
    Pursuant to section 4(b)(2) of the Act, we must consider relevant 
impacts in addition to economic ones. We determined that the lands 
within the designation of critical habitat for Astragalus lentiginosus 
var. piscinensis are not owned or managed by the U.S. Department of 
Defense, there are currently no HCPs for A. l. var. piscinensis, and 
the designation does not include any Tribal lands or trust resources. 
In addition, there are no State conservation plans covering the plant. 
We anticipate no impact to national security, Tribal lands, 
partnerships, or HCPs from this critical habitat designation. Based on 
the best available information, including the prepared economic 
analysis, we believe that the critical habitat unit is essential for 
the conservation of this species. Our economic analysis indicates an 
overall low cost resulting from the designation. Therefore, we have 
found no areas for which the benefits of exclusion outweigh the 
benefits of inclusion, and so have not excluded any areas from this 
designation of critical habitat for A. l. var. piscinensis based on 
economic impacts. As such, we have considered but not excluded any 
lands from this designation based on any relevant impacts.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
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 concerned.
    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effect of the designation. The DEA was made 
available for public review on December 28, 2004 (69 FR 77703). We 
accepted comments on the DEA until January 27, 2005.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for Astragalus lentiginosus var. piscinensis. This information 
is intended to assist the Secretary in making decisions about whether 
the benefits of excluding particular areas from the designation 
outweigh the benefits of including those areas in the designation. This 
economic analysis considers the economic efficiency effects that may 
result from the designation, including habitat protections that may be 
coextensive with the listing of the species. It also addresses 
distribution of impacts, including an assessment of the potential 
effects on small entities and the energy industry. This information can 
be used by the Secretary to assess whether the effects of the 
designation might unduly burden a particular group or economic sector.
    This analysis focuses on the direct and indirect costs of the rule. 
However, economic impacts to land use activities can exist in the 
absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic impacts that result from 
these types of protections are not included in the analysis as they are 
considered to be part of the regulatory and policy baseline.
    The economic analysis addresses the effects of Astragalus 
lentiginosus var. piscinensis conservation efforts on activities 
occurring on lands proposed for designation. The analysis measures lost 
economic efficiency associated with indirect costs of reduced grazing 
opportunities, and direct costs of species and habitat conservation 
activities, monitoring and reporting on the status of water diversion 
activities associated with mining activities, cattle exclosure 
construction and maintenance costs, and the cost of signage for OHV 
routes of travel.
    Estimated pre-designation costs (occurring from the time of the 
listing of Astragalus lentiginosus var. piscinensis to final 
designation of critical habitat, i.e., 1998-2004) range from $778,000 
to $845,000. Total post-designation costs are estimated to be 
approximately $895,000, or $45,000 on an annualized basis over the 20-
year post-designation analysis period. Approximately 92 percent of the 
post-designation costs will be borne by BLM. These expenditures will 
involve resource management activities such as enforcement of OHV 
recreation guidelines, habitat restoration activities, prescribed 
burns, public outreach, etc.
    A copy of the final economic analysis with supporting documents are 
included in our administrative record and may be obtained by contacting 
the U.S. Fish and Wildlife Service, Branch of Endangered Species (see 
ADDRESSES section), or by downloading the document from the Internet 
at: http://ventura.fws.gov/.

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 final rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the final 
rule clearly stated? (2) Does the final rule contain technical jargon 
that interferes with the clarity? (3) Does the format of the final rule 
(grouping and order of the sections, use of headings, paragraphing, and 
so forth) aid or reduce its clarity? (4) Is the description of the 
notice in the SUPPLEMENTARY INFORMATION section of the preamble helpful 
in understanding the final rule? (5) What else could we do to make this 
final rule easier to understand?
    Send a copy of any comments on how we could make this final 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 will not have an annual effect on the economy of $100 million or 
more or affect the economy in a material way. Due to the tight timeline 
for publication in the Federal Register, the Office of Management and 
Budget (OMB) has not formally reviewed this rule. As explained above, 
we prepared an economic analysis of this action. We used 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. We also used it to help determine whether to exclude any area 
from critical habitat, as provided for under section 4(b)(2), if we 
determine that the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless we 
determine,

[[Page 33791]]

based on the best scientific and commercial data available, that the 
failure to designate such area as critical habitat will result in the 
extinction of the species.

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

    Under the Regulatory Flexibility Act (RFA) (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 
effect 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 an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. SBREFA amended the RFA to require 
Federal agencies to provide a statement of factual basis for certifying 
that the rule will not have a significant economic impact on a 
substantial number of small entities. SBREFA also amended the RFA to 
require a certification statement.
    Small entities include small organizations, such as independent 
nonprofit organizations; small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (e.g., housing 
development, grazing, oil and gas production, timber harvesting). We 
apply the ``substantial number'' test individually to each industry to 
determine if certification is appropriate. However, the SBREFA does not 
explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. In areas where the species is present, 
Federal agencies already are required to consult with us under Section 
7 of the Act on activities they fund, permit, or implement that may 
affect Astragalus lentiginosus var. piscinensis. Federal agencies also 
must consult with us if their activities may affect critical habitat. 
Designation of critical habitat, therefore, could result in an 
additional economic impact on small entities due to the requirement to 
reinitiate consultation for ongoing Federal activities.
    The final economic analysis (May 2005) was based on acreages from 
the proposed rule and predicts potential costs of the proposed 
designation to several industry sectors (agricultural production, 
livestock grazing, recreation, commercial mining, groundwater 
exportation, and resource management activities in the ACEC where the 
species occurs). Based on this economic analysis, pre-designation costs 
range from $778,000 to $845,000. The majority of the pre-designation 
costs, 59 percent, are associated with resource management efforts 
within the Fish Slough ACEC, including modifications of impoundments 
and fish barriers, prescribed burning, invasive plant species control, 
and enforcement of OHV restrictions.
    An addendum to the final economic analysis (memorandum dated May 
26, 2005) provides information on the economic impacts of the final 
critical habitat as described in the final rule. Pre-designation costs 
remain unchanged from the final EA. Post-designation costs are 
approximately $895,000, or $45,000 on an annualized basis over the 20-
year post-designation analysis period. The following components 
comprise post-designation costs: (1) Direct annual costs of species and 
habitat conservation activities ($41,000 per year, primarily borne by 
BLM); (2) Direct costs of cattle exclosure maintenance and 
constructions ($500 per year, borne by LADWP); (3) Direct cost of 
additional lease and increased property taxes borne by grazing lessee 
($540 per year, borne by a private rancher); (4) Indirect costs of 
reduced grazing opportunities ($2,670 per year, borne by a private 
rancher); and (5) Direct costs of signage for OHV routes of travel 
($500 per year, borne by BLM).
    Of the forecast post-designation costs, 92 percent are associated 
with the implementation of projects specifically intended to benefit 
the species and habitat (prescribed burns, control of invasive plant 
species, plant propagation and out planting, and public outreach). Of 
the remaining 8 percent of post-designation costs, approximately 7 
percent is associated with exclusion of cattle grazing activities, and 
1 percent is associated with signage of open routes for OHV use. No 
impacts to small entities within the agricultural production industry 
are expected to result from this designation. Likewise, no impacts to 
small businesses that benefit from either recreational fishing or OHV 
recreation in Fish Slough are expected. Thus, the only anticipated 
costs to small entities are increased costs for one rancher. Based on 
these data, we have determined that this designation would not affect a 
substantial number of small entities. As such, we are certifying that 
this designation of critical habitat would not result in a significant 
economic impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C 801 et 
seq.)

    Under SBREFA, this rule is not a major rule. Our detailed 
assessment of the economic effects of this designation is described in 
the economic analysis. Based on the effects identified in the economic 
analysis, we believe that this rule will not have an annual effect on 
the economy of $100 million or more, will not cause a major increase in 
costs or prices for consumers, and will not have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises. Refer to the final economic analysis for a

[[Page 33792]]

discussion of the effects of this determination.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 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 final rule to 
designate critical habitat for Astragalus lentiginosus var. piscinensis 
is not expected to significantly affect energy supplies, distribution, 
or use. Therefore, this action is not a significant energy action and 
no Statement of Energy Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make 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, or 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; Aid to Families 
with Dependent Children 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 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 that receive 
Federal funding, assistance, or permits, or that 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 onto State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments. As such, a Small Government Agency Plan is 
not required.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with DOI and Department of Commerce policy, we 
requested information from, and coordinated development of, this final 
critical habitat designation with appropriate State resource agencies 
in California. The designation of critical habitat in areas currently 
occupied by Astragalus lentiginosus var. piscinensis imposes no 
additional restrictions to those currently in place and, therefore, has 
little incremental impact on State and local governments and their 
activities. The designation may have some benefit to these governments 
in that the areas essential to the conservation of the species are more 
clearly defined, and the primary constituent elements of the habitat 
necessary to the conservation of the species are specifically 
identified. While making this definition and identification does not 
alter where and what federally sponsored activities may occur, it may 
assist these 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 Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order. We are designating critical habitat in accordance 
with the provisions of the Endangered Species Act. This final 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 rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. 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

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the National 
Environmental Policy Act of 1969 in connection with designating 
critical habitat under the Endangered Species Act of 1973, as amended. 
We published a notice outlining our reasons for this determination in 
the Federal Register on October 25, 1983 (48 FR 49244). This assertion 
was upheld in the courts of the Ninth Circuit (Douglas County v. 
Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698 
(1996)).

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 DOI'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

[[Page 33793]]

no Tribal lands essential for the conservation of the Astragalus 
lentiginosus var. piscinensis. Therefore, we have not designated 
critical habitat for the A. l. var. piscinensis on Tribal lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Ventura Fish and Wildlife Office (see 
ADDRESSES section).

Author(s)

    The authors of this package are staff from 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 
recordkeeping requirements, Transportation.

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

0
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.


0
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 listed    Critical     Special
         Scientific name              Common name                                                                                 habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
        Flowering Plants
 
                                                                      * * * * * * *
Astragalus lentiginosus var.      Fish Slough milk-    U.S.A. (CA)........  Fabaceae...........  T...............          647     17.96(a)           NA
 piscinensis.                      vetch.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
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 PCEs 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 groundwater table that is 19 to 60 in (48 to 152 cm) 
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) The presence of pollinator populations for 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 the land upon which are found 
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 unit, Inyo and Mono Counties, 
California. From USGS 1:24,000 quadrangle maps Chidago Canyon and Fish 
Slough, California. Lands bounded by the following UTM Zone 11, NAD 
1927 coordinates (E, N): 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; 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; thence to 
377466; 4142464, where the boundary intersects the south McNally Canal. 
Thence westerly along the south McNally Canal to 375331, 4141934; 
thence northwest and following coordinates: 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; and 
returning to 373700, 4149500.
    (ii) Excluding land bounded by 375700, 4143400; 375700, 4142900; 
376300, 4142900; and 376300, 4143400; and returning to 375700, 4143400.

    (iii) Note: Map of the critical habitat unit follows.
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[GRAPHIC] [TIFF OMITTED] TR09JN05.000


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* * * * *

    Dated: June 1, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-11315 Filed 6-8-05; 8:45 am]
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