[Federal Register Volume 70, Number 239 (Wednesday, December 14, 2005)]
[Rules and Regulations]
[Pages 74112-74136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23694]



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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. coachellae (Coachella Valley 
Milk-Vetch); Final Rule

  Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT74


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Astragalus lentiginosus var. coachellae (Coachella 
Valley Milk-Vetch)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), herein 
address the designation of critical habitat for Astragalus lentiginosus 
var. coachellae (Coachella Valley milk-vetch) under the Endangered 
Species Act of 1973, as amended (Act). In total, we are designating 
zero acres of critical habitat for Astragalus lentiginosus var. 
coachellae. We identified 17,746 ac (7,182 ha) of local, County, State, 
Federal, and private lands containing features essential to the 
conservation of A.l. var. coachellae in Riverside County. However, all 
habitat with essential features is located within areas to be conserved 
and managed by the draft Coachella Valley MSHCP/NNCP or within areas 
conserved within the Coachella Valley Preserve System under the 
Coachella Valley fringe-toed HCP, and therefore is excluded or exempted 
from critical habitat under section 4(b)(2) or 3(5)(A) of the Act.

DATES: This rule becomes effective on January 13, 2006.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley 
Road, Carlsbad, California 92011. You may obtain copies of the final 
rule and economic analysis from this address or by calling (760) 431-
9440, or from our Internet site at http://carlsbad.fws.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Jim Bartel, Field Supervisor, 
Carlsbad Fish and Wildlife Office (see ADDRESSES section).

SUPPLEMENTARY INFORMATION: 

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's 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. 
The Service believes 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 Act 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 470 species, or 37.5 
percent of the 1,253 listed species in the U.S. under the jurisdiction 
of the Service, have designated critical habitat.
    We address the habitat needs of all 1,253 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. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    We note, however, that the August 6, 2004, Ninth Circuit judicial 
opinion, Gifford Pinchot Task Force v. United States Fish and Wildlife 
Service, found our definition of adverse modification was invalid. In 
response to the decision, the Director has provided guidance to the 
Service based on the statutory language. In this rule, our analysis of 
the consequences and relative costs and benefits of the critical 
habitat designation is based on application of the statute consistent 
with the 9th Circuit's ruling and the Director's guidance.

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 the Service 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 the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's 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 coupled 
with the need to avoid the risks associated with noncompliance with 
judicially imposed deadlines, have left the Service with limited 
ability to provide for adequate public participation or to ensure a 
defect-free rulemaking process before making decisions on listing and 
critical habitat proposals. This in turn fosters a second round of 
litigation in which those who fear adverse impacts from critical 
habitat designations challenge those designations. The cycle of 
litigation appears endless, is very expensive, and in the final 
analysis provides relatively little additional protection to listed 
species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA). None of these costs result in 
any benefit to the species that is not already afforded by the 
protections of the Act enumerated earlier, and they directly reduce the 
funds available for direct and tangible conservation actions.

Background

    Astragalus lentiginosus var. coachellae is found on loose wind-
blown sands in dunes and flats, and in

[[Page 74113]]

sandy alluvial washes in the northern Coachella Valley area spanning 
roughly from the sandy alluvial washes just east of Cabezon to the 
dunes off Washington Avenue, north and west of Indio in Riverside 
County, California. At the time A. l. var. coachellae was listed under 
the Act in 1998, we were aware that 90 percent of this taxon's 
occurrences were located within 3 mi (5 km) of Interstate 10 from north 
of Indio to Cabezon (Barrows 1987; CNDDB 1996). A majority of these 
occurrences were discovered in and around Snow Creek, Whitewater River 
downstream from the percolation ponds, Mission and Morongo Creeks, the 
Willow Hole Reserve, the Big Dune south of Interstate Highway 10 (I-
10), and the Coachella Valley Preserve (Coachella Valley Association of 
Governments unpublished data 2004). The largest populations of up to 
several thousand plants were found prior to listing in the Big Dune 
area south of I-10, including several thousand plants that were 
discovered again in 2005 (USFWS unpublished data 2005). Other areas 
containing large populations that were known prior to listing that 
contain from several hundred to a thousand plants include the Willow 
Hole reserve area, Snow Creek area, and Coachella Valley Preserve 
(Coachella Valley Association of Governments unpublished data 2004).
    There also exists a disjunct Astragalus lentiginosus var. 
coachellae population that was known at the time of listing. This 
population is located approximately 50 miles (80 km) east of the 
Coachella Valley in the Chuckwalla Valley near the City of Desert 
Center. This population has only been found in a limited extent on and 
near a sandy roadside berm along a 5-mile (8-km) stretch of Highway 
177, northeast of the City of Desert Center. The Palen Dunes, located 
approximately 3 miles (5 km) south of Highway 177, contain sandy soils 
that appear suitable for A. l. var. coachellae. However, it is 
uncertain whether the plant occurs in this area since surveys are 
limited to only one unsuccessful survey attempt in 1998 (Bureau of Land 
Management, unpublished data 2001a).
    Please refer to the final listing rule published in the Federal 
Register on October 6, 1998 (63 FR 53596), for a detailed discussion on 
the taxonomic history and description of this taxon. It is our intent 
in this document to reiterate and discuss only those topics directly 
relevant to the development and designation of critical habitat or 
relevant information obtained since the final listing.
    The primary threat to Astragalus lentiginosus var. coachellae and 
its habitat is the extensive and growing urban development in the 
Coachella Valley (63 FR 53596), including residential, commercial, and 
agricultural development. Urbanization has both direct and indirect 
adverse effects on A. l. var. coachellae. Urbanization directly 
destroys suitable and occupied habitat onsite, and indirectly degrades 
suitable and occupied habitat by blocking the fluvial (water) and 
eolian (wind) transport of sand from sand source areas to downwind 
areas of suitable habitat. Other threats to Astragalus lentiginosus 
var. coachellae and its habitat include the obstruction of sand 
transport and competition by dense populations of invasive exotic 
plants, such as Saharan mustard (Brassica tournefortii) and 
Mediterranean grass (Schismus barbatus), and direct mortality by off-
highway vehicle (OHV) use (63 FR 53596).

Previous Federal Actions

    The following section summarizes the Federal actions that occurred 
since the rule listing this species as endangered was published in the 
Federal Register on October 6, 1998. Please refer to the final listing 
rule (63 FR 53596) for a discussion of Federal actions that occurred 
prior to the species Federal listing.
    At the time of listing we determined that designation of critical 
habitat was ``not prudent'' (63 FR 53596). On November 15, 2001, the 
Center for Biological Diversity and the California Native Plant Society 
filed a lawsuit against Secretary of the Interior and the Service 
challenging our ``not prudent'' determinations for eight plant species 
listed as endangered or threatened, including Astragalus lentiginosus 
var. coachellae (Center for Biological Diversity, et al. v. Norton, No. 
01 CV 2101, S.D. Cal.). A second lawsuit asserting the same challenge 
was filed on November 21, 2001, by the Building Industry Legal Defense 
Foundation (Building Industry Legal Defense Foundation v. Norton, No. 
01 CV 2145, S.D. Cal.). The parties in both cases agreed to remand the 
critical habitat determinations for the eight plant species at issue to 
the Service for reconsideration. On July 1, 2002, the Court directed us 
to reconsider our not prudent determination and submit to the Federal 
Register for publication a proposed critical habitat designation, if 
prudent, for Astragalus lentiginosus var. coachellae on or before 
November 30, 2004, and to submit to the Federal Register for 
publication of a final critical habitat designation on or before 
November 30, 2005. The proposed rule to designate critical habitat for 
Astragalus lentiginosus var. coachellae was signed on November 30, 
2004, and published in the Federal Register on December 14, 2004 (69 FR 
74468).

Summary of Comments and Recommendations

    During the initial 60-day public comment period for the proposed 
designation of critical habitat (69 FR 74468), we contacted all 
appropriate State, local and Federal agencies, elected officials, 
scientific organizations, and other interested parties, via mail and/or 
fax, and invited them to submit comments and/or information concerning 
the proposed rule. We also published newspaper notices on December 17, 
2004, in the Desert Sun, Palm Springs, CA; Press-Enterprise, Riverside, 
CA; San Diego Union-Tribune, San Diego, CA; Orange County Register, 
Santa Ana, CA; and in the Los Angeles Times, Los Angeles, CA, inviting 
public comment. The initial comment period ended February 14, 2005. We 
did not receive any requests for a public hearing prior to the 
published deadline.
    A second comment period was open from September 27, 2005, to 
October 27, 2005 (70 FR 56434), announcing the availability of the 
September 2005 draft economic analysis (DEA) of critical habitat 
designation for Astragalus lentiginosus var. coachellae as prepared by 
Northwest Economic Associates and reopening the comment period for the 
proposed rule. All comments and new information have been incorporated 
into this final rule as appropriate.
    During the first comment period, we received four comments, 
including a joint letter from two non-profit organizations, a letter 
from a county agency, a water agency, and a local mining business. All 
four comment letters disagreed with the size and area proposed critical 
habitat: three of the letters requested the reduction of critical 
habitat and one letter requested the expansion of critical habitat to 
more areas.
    During the second comment period, we received one comment letter on 
the draft economic analysis from an environmental organization. The 
commenter, who also commented during the first comment period, 
disagreed with excluding areas from critical habitat and requested that 
we include sand source areas in critical habitat. The commenter also 
claimed that the economic analysis grossly overestimated the costs 
associated with

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conserving Astragalus lentiginosus var. coachellae.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited independent opinions from four 
knowledgeable individuals who have expertise with the species, with the 
geographic region where the species occurs, and/or with the principles 
of conservation biology. The purpose of such review is to ensure that 
the designation is based on scientifically sound data, assumptions, and 
analyses, including input of appropriate experts and specialists.
    Of the four individuals contacted, two responded. The two peer 
reviewers that responded generally supported the proposal and provided 
us with additional information, clarifications, and suggestions to 
improve the final critical habitat designation. One reviewer 
recommended expanding the critical habitat designation to include lands 
within the draft Coachella Valley Multiple Species Habitat Conservation 
Plan and Natural Community Conservation Plan (MSHCP/NCCP) that were 
proposed for exclusion. This recommendation was based on the fact that 
the draft Coachella Valley MSHCP/NCCP has yet to be approved and that 
effective conservation efforts for Astragalus lentiginosus var. 
coachellae are, therefore, still unproven. The other peer reviewer did 
not comment on whether critical habitat should be expanded or reduced, 
but recommended the Service provide more explanation for our 
determinations for including or excluding certain areas from designated 
critical habitat. Both peer reviewers discussed the importance of 
including important sand source areas as critical habitat because they 
are important for providing and transporting sediment containing new 
sands to downstream and downwind sandy areas containing PCEs, even 
though these areas do not contain PCEs that support populations of this 
taxon. Both reviewers suggested ways to improve the clarity of both the 
rule and our decision-making process.
    We reviewed all comments, including comments received from the 
public and peer reviewers during the comment periods, for substantive, 
relevant issues and new data regarding critical habitat and Astragalus 
lentiginosus var. coachellae. Peer reviewer comments are summarized and 
addressed separately in the following section. Public comments are 
grouped into three general issue categories relating to critical 
habitat and the draft economic analysis and addressed in the Public 
Comments section below.

Peer Review Comments

    (1) Comment: A peer reviewer requested we clarify how critical 
habitat may provide legal protection to a federally listed plant on 
non-Federal lands. Specifically, they sought more information on 
several matters, including: (1) Whether non-Federal landowners were 
contacted about the proposed critical habitat designation and inquired 
about their perspective of the proposal; (2) whether non-Federal 
landowners are currently under any agreement with State, Federal, or 
local governments for the conservation of this taxon; (3) an assessment 
of how the proposed designation may open the Service to litigation for 
designating critical habitat on non-Federal lands and increase 
vandalism to plants on non-Federal lands.
    Our Response: First, although some habitat containing features 
essential to the conservation of Astragalus lentiginosus var. 
coachellae were determined to occur on non-Federal lands, these lands 
were excluded from critical habitat designation because of their 
inclusion in the preferred alternative reserve design in the draft 
Coachella Valley MSHCP/NCCP (CVMC 2004).
    Second, we did not contact all non-Federal landowners whose 
property contained habitat with features essential to the conservation 
of this taxon. However, we did inform the public about the proposed 
critical habitat designation through several local newspapers and with 
a letter to elected officials and several local, State, Tribal, and 
Federal agencies working in the Coachella Valley. We also are currently 
working with non-Federal landowners whose property contains habitats 
with features essential to the conservation of this taxon on the draft 
Coachella Valley MSHCP/NCCP to conserve habitat for this taxon.
    Third, it is not within the scope of a critical habitat designation 
to determine whether a designation of critical habitat on non-Federal 
lands will make the Service more vulnerable to litigation. As required 
under section 4(b)(1)(A) of the Act, we use the best scientific data 
available to determine areas that contain habitat with features 
essential to the conservation of the species. Ownership of lands being 
proposed as critical habitat is relevant to the Secretary's 
consideration under 4(b)(2) of the Act of relevant factors such as the 
economic impacts to landowners of designating such lands as critical 
habitat. We also share concerns that designating critical habitat may 
lead to an increase in vandalism of Astragalus lentiginosus var. 
coachellae, as stated in our rule to list the species on October 6, 
1998 (63 FR 53596). However, we anticipate that vandalism to this taxon 
may not increase since we are working with non-Federal landowners on 
the draft Coachella Valley MSHCP/NCCP and excluding lands that contain 
habitat with features essential to the conservation of the species from 
critical habitat. Furthermore, the draft Coachella Valley MSHCP/NCCP is 
also proposing to protect reserve areas containing A. l. var. 
coachellae with fencing and other forms of enforcement. These types of 
actions under a comprehensive management plan offer more protections 
for federally listed plants, such as A. l. var. coachellae, on non-
Federal lands than a critical habitat designation.
    (2) Comment: A peer reviewer emphasized the importance of 
protecting various types of habitat, including: (1) Currently 
unoccupied habitat; (2) currently unoccupied habitat that was 
historically occupied; (3) potential habitat downwind and downstream of 
current populations; and (4) source sand areas that provide future 
habitat in downwind and down-drainage areas. Another reviewer stated 
that it was unclear in the proposed rule whether these areas were 
included as critical habitat.
    Our Response: First, the Act defines critical habitat as ``specific 
areas within the geographical area occupied by the species, at the time 
it is listed * * * 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.'' We 
have identified all areas within the geographic range of the species 
that are known to be occupied, contain features essential to the 
conservation of Astragalus lentiginosus var. coachellae, and that may 
require special management considerations or protection. It is not our 
current policy to include all areas that could potentially provide 
suitable habitat or are not known to be occupied, even if they were 
historically occupied. Second, we agree with the reviewer that sand 
source areas are important for the conservation of A. l. var. 
coachellae. However, we have determined that the presence of active 
sand dunes (primary constituent element (PCE) 1) is an essential 
feature, and we have designated them as a PCE (see Primary Constituent 
Elements for a detailed discussion). Therefore, Federal actions that 
affect the sand transport system will indirectly affect critical 
habitat. Because there is already a regulatory

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mechanism within this designation, it is not necessary to designate the 
sand source areas themselves. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases.
    (3) Comment: A peer reviewer stated that one of the benefits of 
designating critical habitat is that it helps in identifying extant 
populations of Astragalus lentiginosus var. coachellae when initiating 
Section 7 consultations.
    Our Response: We agree with the reviewer that there is an 
educational benefit of designating critical habitat because it 
identifies areas that contain features essential to the conservation of 
the species that may require special management protection or 
considerations, and this may provide information to Federal agencies 
required to consult with us on their actions.
    (4) Comment: The same peer reviewer stated that another benefit of 
designating critical habitat is identifying unoccupied areas that may 
be important areas for supporting Astragalus lentiginosus var. 
coachellae populations in the future.
    Our Response: We agree with the reviewer that unoccupied areas may 
be important for the recovery of the taxon by supporting future 
Astragalus lentiginosus var. coachellae populations. However, it is not 
the intent of the Act to designate critical habitat throughout a 
taxon's entire range, including areas that potentially could be 
occupied. We have identified areas known to be occupied at the time of 
listing and known to be currently occupied that contain habitat with 
features essential to the conservation of this taxon.
    (5) Comment: A peer reviewer stated that it is beneficial to 
exclude areas from critical habitat if the area is already protected 
through the Federal or local government ownership as well as through 
private reserves.
    Our Response: We agree with the reviewer. A critical habitat 
designation will not afford as much protection for an area containing 
habitat with features essential to the conservation of Astragalus 
lentiginosus var. coachellae as would be afforded under Federal, State, 
Tribal, or local ownership provided the property is managed for the 
conservation of this taxon. Also, under the definition of critical 
habitat, we can only include lands in critical habitat if the essential 
features may require special management considerations or protection. 
Thus, we have excluded all areas containing features essential to the 
conservation of this taxon due to their inclusion within conservation 
areas that are or will be conserved and managed by Federal and local 
governments (see section titled Application of Section 3(5)(A) and 
Exclusions Under Section 4(b)(2) of the Act for a more detailed 
discussion).
    (6) Comment: A peer reviewer stated that designating only small 
tracts of land as critical habitat may not be beneficial because of the 
movement of suitable habitat through time due to wind and flooding, 
thus resulting in these areas becoming unsuitable.
    Our Response: First, as discussed above in Comment 5, we 
have excluded in this final rule all areas that were proposed as 
critical habitat. Second, the reason only small tracts of lands were 
originally proposed as critical habitat was because larger adjacent 
areas with habitat containing features essential to conservation of 
this taxon were either excluded from the designation because they are 
proposed for protection under the draft Coachella Valley MSHCP/NCCP. We 
believe that these conservation practices will garner more conservation 
benefits than a critical habitat designation (see section titled 
Application of Section 3(5)(A) and Exclusions Under Section 4(b)(2) of 
the Act for a more detailed discussion).
    (7) Comment: A peer reviewer stated that there is value in the 
process for determining critical habitat because it has allowed for an 
assessment of areas with habitat that contain features essential to the 
conservation of the taxon, even though not all these areas are being 
proposed because they are being addressed in other management plans.
    Our Response: We agree with the reviewer and have discussed this 
later in the rule (see Relationship of Critical Habitat to the Pending 
Coachella Valley Multiple Species Habitat Conservation Plan and Natural 
Community Conservation Plan and Natural Community Conservation Plan 
(MSHCP/NCCP) for a detailed discussion).
    (8) Comment: A peer reviewer stated that there are many occurrences 
of Astragalus lentiginosus var. coachellae on sites that are ``cut 
off'' from sand sources by intervening land uses. The peer reviewer 
suggests that the rule would be more clear if it described how long 
these sites might be expected to support viable populations and whether 
these occurrences can be meaningful to long-term conservation for the 
plant, and whether management efforts could help protect these 
populations.
    Our Response: We agree with the reviewer that there are occurrences 
of Astragalus lentiginosus var. coachellae that are now isolated from 
the sand transport system and ``cut off'' from the sand sources that 
maintain suitable habitat for this plant. The long-term viability of 
these occurrences is reduced because there is little to no potential 
that the natural ecological processes that maintain the habitat for A. 
l. var. coachellae will return. The length of time that these isolated 
occurrences will remain into the future depends upon a variety of site-
specific factors such as the degree of isolation from the sand 
transport system, size and scale of the development that is blocking 
the downstream movement of sediment, and the rate of sand loss around 
the plant population. Management efforts may substitute for the natural 
ecological processes by mechanically transferring sand to areas ``cut 
off'' from sand sources. These management practices are discussed below 
(see section titled Special Management Considerations or Protection).
    (9) Comment: A peer reviewer questioned why there were no Agua 
Caliente Reservation lands included within critical habitat if there 
are significant populations on these lands.
    Our Response: We recognize that important populations exist on Agua 
Caliente Reservation lands in the Big Dune area. However, we determined 
that these areas did not contain features essential to the conservation 
of this taxon because the ecological processes that maintain suitable 
habitat in this area from the Whitewater River sand transport system 
have been compromised by development in Cathedral City. New eolian 
sands are prevented by development from replenishing the Big Dune area. 
We have determined that without these ecological processes the long-
term prospect of Astragalus lentiginosus var. coachellae populations in 
this area is reduced.
    (10) Comment: A peer reviewer stated that we should include a 
discussion on the best and worst case scenarios for Astragalus 
lentiginosus var. coachellae protections once the draft Coachella 
Valley MSHCP/NCCP is finalized.
    Our Response: The impacts and conservation measures provided for 
Astragalus lentiginosus var. coachellae under the draft Coachella 
Valley MSHCP/NCCP will be analyzed as part of a section 7 consultation 
for the issuance of a section 10(a)(1)(B) permit to the Coachella 
Valley Association of Governments (CVAG) and local jurisdictions. The 
Service has not completed the section 7 consultation for this section 
10 permit at this time. However, we are confident that CVAG will reach 
a successful conclusion to its MSHCP/NCCP development process

[[Page 74116]]

and successfully conserve habitat for Astragalus lentiginosus var. 
coachellae to meet the requirements outlined in section 10(a)(1)(B) of 
the Act. The draft MSHCP/NCCP proposes to conserve 19,321 ac (7,819 ha) 
of modeled A. l. var. coachellae habitat in their Conservation Areas 
that includes large core habitat areas and other important conservation 
areas, such as sand sources and sand transport corridors. Other goals 
include: (1) Protecting other important conservation areas to allow for 
population fluctuation and promote genetic diversity; (2) protecting 
necessary ecological processes, including the sand transport systems, 
that will be beneficial in maintaining the PCEs in the areas containing 
features essential for the conservation of A. l. var. coachellae; (3) 
maintaining biological corridors and linkages among all conserved 
populations to the maximum extent feasible; and (4) ensuring 
conservation of habitat quality through biological monitoring and 
adaptive management actions. Therefore, we have excluded under section 
4(b)(2) of the Act all lands containing features essential for the 
conservation of A. l. var. coachellae within the Coachella Valley 
MSHCP/NCCP plan area (see section titled Pending Coachella Valley 
Multiple Species Habitat Conservation Plan and Natural Community 
Conservation Plan MSHCP/NCCP for a more detailed discussion).
    (11) Comment: A peer reviewer stated that we should include a 
discussion on what options the Service has for conservation of 
Astragalus lentiginosus var. coachellae if the draft Coachella Valley 
MSHCP/NCCP is never finalized.
    Our Response: In the absence of an approved Coachella Valley MSHCP/
NCCP, Astragalus lentiginosus var. coachellae would continue to receive 
means for protection and be provided a program for its conservation 
under the Act. Under section 4 of the Act, the Service would develop 
and implement a recovery plan for A. l. var. coachellae, although there 
are currently no plans by the Service to fund or finish preparing a 
recovery plan. However, implementation of a recovery plan by 
landowners, Federal agencies, and other parties is voluntary. Section 
7(a)(1) of the Act calls for Federal agencies (including the Department 
of the Interior), in consultation with and assistance from the 
Secretary of the Interior, to utilize their authorities in furtherance 
of the purposes of the Act. Section 7(a)(2) of the Act requires Federal 
agencies to ensure that any Federal action would not likely jeopardize 
the continued existence of the species or result in the destruction or 
adverse modification of critical habitat. Section 9 of the Act includes 
prohibitions on the removal and reduction to possession; maliciously 
damaging or destroying, or removing, cutting, digging up, or damaging 
or destroying in knowing violation of any state law; or in violation of 
a state criminal trespass law of A. l. var. coachellae on Federal 
lands.
    The Bureau of Land Management (BLM) continues to manage Astragalus 
lentiginosus var. coachellae under the California Desert Conservation 
Act and other authorities, including section 7 of the Act. We have made 
significant progress in completing the Coachella Valley MSHCP/NCCP and 
we believe that the plan would provide a greater level of conservation 
to A. l. var. coachellae than would sections 4, 7, and 9 of the Act by 
themselves. The plan provides for the conservation of core habitat 
areas and other conserved habitats that would benefit the species, 
protects necessary ecological processes and biological corridors and 
linkages, implements monitoring and management programs, and restricts 
activities that result in adverse impacts to this plant.
    (12) Comment: A peer reviewer stated that we should include a 
discussion on the Service's authority (if any) to monitor compliance of 
the Coachella Valley MSHCP/NCCP and ensure that conservation measures 
for Astragalus lentiginosus var. coachellae are implemented as proposed 
in the draft plan.
    Our Response: Section 10(a)(2)(B) of the Act specifies that an 
incidental take permit ``shall contain such terms and conditions as the 
Secretary deems necessary or appropriate to carry out the purposes of 
this paragraph, including, but not limited to, such reporting 
requirements as the Secretary deems necessary for determining whether 
such terms and conditions are being complied with.'' The draft 
Coachella Valley MSHCP/NNCP includes monitoring and reporting 
requirements that will be incorporated into any permit issued under the 
plan.
    (13) Comment: The same peer reviewer also stated that the Service 
should describe any proposed monitoring or adaptive management in the 
draft plan that might ensure adequate remedial work that will be done 
if needed.
    Our Response: The draft Coachella Valley MSHCP/NCCP follows an 
adaptive management approach that involves development of objectives, 
conceptual models of system dynamics, a monitoring program, and changes 
to management based on monitoring results. The facets are interrelated 
and their integration will test assumptions systematically in order to 
adapt and learn.
    (14) Comment: A peer reviewer stated that the Service's analysis of 
the benefits of excluding lands covered under the draft Coachella 
Valley MSHCP/NCCP did not present a cogent argument for why the 
benefits of excluding critical habitat within the draft Coachella 
Valley MSHCP/NCCP outweigh the benefits of inclusion.
    Our Response: We believe that our argument for excluding non-
Federal lands within the draft Coachella Valley MSHCP/NCCP emphasizes 
the point that benefits of a comprehensive management plan that covers 
a federally listed plant on non-Federal lands will garner more 
conservation benefits than designating critical habitat (see section 
titled Relationship of Critical Habitat to the Pending Coachella Valley 
Multiple Species Habitat Conservation Plan and Natural Community 
Conservation Plan and Natural Community Conservation Plan (MSHCP/NCCP) 
for a more detailed discussion).

Comments From the State

    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.'' No 
comments were received from the State regarding the proposal to 
designate critical habitat for the Astragalus lentiginosus var. 
coachellae.

Comments Related to the Process of Designating Critical Habitat

    (15) Comment: One commenter stated that the Service failed to cite 
any scientific evidence supporting our decision to exclude certain 
areas with habitat containing features essential to the conservation of 
the taxon from the critical habitat designation.
    Our Response: Section 4(b)(2) of the Act allows us to consider the 
economic, national security, and any other relevant impact of 
specifying any particular area as critical habitat. An area may be 
excluded from critical habitat if it is determined 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. As outlined in 
the proposed rule, we determined the benefits of exclusion outweigh the 
benefits of including lands covered by the draft Coachella Valley 
MSHCP/NCCP. We have also clarified our determination that exclusion of

[[Page 74117]]

these areas will not result in extinction of the species (see section 
titled Relationship of Critical Habitat to the Pending Coachella Valley 
Multiple Species Habitat Conservation Plan and Natural Community 
Conservation Plan and Natural Community Conservation Plan (MSHCP/NCCP) 
for a more detailed discussion).
    (16) Comment: A commenter contended that Habitat Conservation Plans 
(HCPs: In this case the draft Coachella Valley MSHCP/NCCP) have very 
different goals for species conservation than critical habitat 
designations. HCPs allow for take of covered species, reducing species 
numbers that are already in crisis of extinction even further and 
further reducing listed species opportunity for recovery. Whereas, a 
critical habitat designation and protection are meant to promote 
recovery of the species (section 3(3) and 3(5) of the Act; F.3d 434 and 
the August 6, 2004, Ninth Circuit judicial opinion, Gifford Pinchot 
Task Force v. United State Fish and Wildlife Service). Furthermore, 
under the Act, ``essential habitat'' and ``unoccupied areas'' that are 
critical to the species survival and recovery have no legal definition 
and therefore no legal standing under the law. As a result, the 
commenter contended that by not designating critical habitat as 
required, the Service is an abdication of responsibility to follow the 
law.
    Our Response: The Service has operated under the Secretary's 
discretion to exclude areas from critical habitat if the benefits of 
such exclusion outweigh the benefits of its inclusion. Section 4(b)(2) 
of The Act states ``the Secretary shall designate critical habitat, and 
make revisions thereto, under subsection (a)(3) on the basis of the 
best scientific data available and after taking into consideration the 
economic impact, and any other relevant impact, of specifying any 
particular area as critical habitat. The Secretary may exclude any area 
from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species concerned.''
    The Service's exclusion of areas containing features essential to 
the conservation of Astragalus lentiginosus var. coachellae from 
critical habitat is based on the inclusion of these areas within 
conservation areas of a nearly approved HCP. The benefits to A. l. var. 
coachellae that are garnered from a HCP outweigh the benefits of 
including these areas as designated critical habitat and applying 
another regulatory hardship on HCP participants for lands that are 
already or will conservation benefits for A. l. var. coachellae.
    (17) Comment: A commenter stated that there is a benefit of having 
designated critical habitat in excluded areas should the draft 
Coachella Valley MSHCP/NCCP and Coachella Valley Fringe-Toed Lizard HCP 
falter in their conservation mandate.
    Our Response: If these HCPs were to fail in their conservation 
mandate, it would be possible for the Service to re-propose these areas 
for critical habitat designation. However, the Service has determined 
that the benefits of designating critical habitat in these areas do not 
outweigh the benefits of excluding these areas from designation while 
these lands are covered under either the Coachella Valley MSHCP or the 
Coachella Valley Fringe-Toed Lizard HCP, and therefore have excluded 
these areas from designation.
    (18) Comment: One commenter expressed their concern that any 
designation of critical habitat within the draft Coachella Valley 
MSHCP/NCCP Plan Area may jeopardize the participation by various cities 
in the Plan.
    Our Response: It is our determination that maintaining partnerships 
in the planning process for the Coachella Valley MSHCP/NCCP will 
provide a greater conservation benefit to Astragalus lentiginosus var. 
coachellae than designating critical habitat on lands under these 
partners' auspices and potentially losing their participation in the 
Plan.
    (19) Comment: A commenter stated that the proposed critical habitat 
included only one of twenty-six Astragalus lentiginosus var. coachellae 
locations recorded in the California Natural Diversity Database 
(CNDDB). They also stated that it is unclear if the remaining locations 
are within lands excluded from the designation, and commented that all 
lands with habitat essential to the conservation of the taxon should be 
included as critical habitat. They also stated excluding critical 
habitat would hurt the recovery potential of the taxon.
    Our Response: Ten of twenty-eight CNDDB records (there are 28 
records rather than 26 as stated in the comment) were captured within 
areas that we have determined contain features essential to the 
conservation of this taxon. In determining these areas, it is important 
not only to look at quantity of locations that were captured, but also 
the quality of the locations that were captured. Several of the CNDDB 
records are in habitats that are severely degraded due to significant 
disturbance from nearby development. Additionally, in determining areas 
containing essential features, we compiled a larger dataset of 
Astragalus lentiginosus var. coachellae locations than just the CNDDB 
records. It is evident from our data that we have captured a majority 
of the high quality locations within areas possessing features 
essential to the conservation of this taxon. High-quality locations 
include those sites with PCEs and are within areas still functioning as 
part of one of the three major sand transport systems in the Coachella 
Valley. We believe we captured locations that have the best prognosis 
for long-term survival and are the areas essential to the conservation 
of the taxon. Our proposed rule for critical habitat designation of A. 
l. var. coachellae clearly mapped areas that were being proposed as 
critical habitat as well as areas that were proposed for exclusion. We 
do not believe that it should have been confusing to determine as to 
whether the CNDDB records were located either within proposed areas, 
excluded areas, or areas not containing features essential to the 
conservation of A. l. var. coachellae.
    We also do not believe that all areas containing features essential 
to the conservation of Astragalus lentiginosus var. coachellae should 
be designated critical habitat if they are within areas that are 
already receiving or will very likely receive management benefits to 
this taxon (see section titled Application of Section 3(5)(A) and 
Exclusions Under Section 4(b)(2) of the Act for a more detailed 
discussion). On the same note, we do not believe that excluding 
critical habitat based on existing or pending habitat conservation 
plans would set back the recovery potential of A. l. var. coachellae 
since these plans provide more conservation benefits than would be 
provided by designating these areas as critical habitat. As a result, 
we believe that the long-term partnerships that are formed by agreeing 
to habitat conservation plans or other conservation plans that provide 
conservation benefits to A. l. var. coachellae work more effectively 
toward promoting the recovery of this taxon than would a critical 
habitat designation.
    (20) Comment: One commenter stated that the critical habitat 
designation suffers from a lack of habitat connectivity.
    Our Response: We recognize that habitat connectivity is an 
important aspect of a critical habitat designation because this allows 
for gene flow

[[Page 74118]]

between populations and recolonization of areas with endangered or 
extirpated populations. We used the best available scientific data to 
develop the criteria used to delineate critical habitat boundaries 
associated with both recent occurrences and occurrences known at the 
time of listing (see Criteria Used To Identify Critical Habitat). We 
recognize that designation of critical habitat may not include all of 
the habitat areas that may eventually be determined to be necessary for 
the recovery of the species. For these reasons, critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or may not be required for recovery.

Comments Related to Site-Specific Areas and Unoccupied Areas Identified 
for Possible Inclusion

    (21) Comment: One commenter requested that unoccupied areas 
identified in the proposed rule as being important to maintain fluvial 
and eolian processes be included as part of the final critical habitat 
designation.
    Our Response: See response to Comment 2 above.
    (22) Comment: A commenter stated that not all Coachella Valley 
Water District (CVWD) lands were excluded from the critical habitat 
designation, possibly due to the Service's use of outdated parcel data. 
Similarly, another commenter stated that we should remove all Granite 
Construction Company property from critical habitat designation and 
suggested that its inclusion may be due to errors in parcel data.
    Our Response: We excluded all CVWD lands from critical habitat 
because of their participation and anticipated signatory status in the 
draft Coachella Valley MSHCP/NCCP planning process (see Discussion in 
Relation of Critical Habitat to the Pending Coachella Valley Multiple 
Species Habitat Conservation Plan/Natural Communities Conservation Plan 
(MSHCP/NCCP)). The inclusion of CVWD property within the critical 
habitat designation was an artifact of our mapping process during the 
proposed rule for describing legal boundaries for areas with habitat 
containing features essential for the conservation of this taxon. The 
mapping process for the proposed rule overlaid a 100m by 100m grid on 
areas containing essential features to create an outer boundary that 
was used to describe the legal Universal Transverse Mercator (UTM) 
coordinates. In some areas, this process captured excluded Water 
District lands containing essential features for the conservation of 
this taxon. We changed our mapping procedure for the final designation 
and abandoned use of the grid system. Instead, the legal UTM 
coordinates for the boundary of the critical habitat followed precisely 
with the boundary of the areas containing essential features. As a 
result, all CVWD lands containing features essential for the 
conservation of this taxon were excluded from critical habitat 
designation pursuant to section 4(b)(2) of the Act.
    Granite Construction Company lands were also included within the 
legal maps for the same reasons. After the change in our mapping 
process for the final designation, Granite Construction Company lands 
are no longer in critical habitat because they do not contain habitat 
with features essential to the conservation of this taxon.
    (23) Comment: Two commenters requested that BLM lands north of the 
percolation ponds be removed from critical habitat because it is not 
suitable habitat. One of these commenters also requested that all 
remaining BLM lands within the draft Coachella Valley MSHCP/NCCP Plan 
be excluded from critical habitat because the BLM's California Desert 
Conservation Area Plan Amendment (CDCAPA) for the Coachella Valley 
already requires BLM to manage their lands consistent with the 
Coachella Valley MSHCP/NCCP.
    Our Response: We agree with the commenter and all BLM lands that 
were proposed as critical habitat are excluded from designation in this 
final rule based on BLM's commitment under their CDCAPA to manage their 
lands consistent with the draft Coachella Valley MSHCP once it is 
completed (see section titled Relationship of Critical Habitat to the 
Pending Coachella Valley Multiple Species Habitat Conservation Plan and 
Natural Community Conservation Plan and Natural Community Conservation 
Plan (MSHCP/NCCP) for a more detailed discussion).
    (24) Comment: One commenter stated that the Astragalus lentiginosus 
var. coachellae population located north of Desert Center also be 
included as critical habitat since it represents an important 
peripheral population. The commenter also discusses other peripheral 
populations that were not included.
    Our Response: Although the Astragalus lentiginosus var. coachellae 
population in Desert Center appears unusual because it is so disjunct 
from the main center of the taxon's range, we do not have any 
information indicating that this population has special demographic, 
ecological, or genetic significance. It is not the intent of the Act to 
include every population throughout a species' range within critical 
habitat. The commenters did not provide information indicating the 
significance of the Desert Center population or what other peripheral 
populations should have been included within critical habitat.
    (25) Comment: A commenter requested clarification on the area of 
proposed critical habitat in Unit 1 outside the bounds of the 
Whitewater Floodplain Conservation Area (southeast of the Conservation 
Area).
    Our Response: This area has been determined to not contain features 
essential to the conservation of Astragalus lentiginosus var. 
coachellae and has been removed from critical habitat.

Comments Related to the Draft Economic Analysis

    (26) Comment: A commenter stated that the draft economic analysis 
(DEA) should have included an analysis of benefits, such as maintaining 
natural flood control processes along waterways, amenity values, open 
space, flood/drought mitigation, and detoxification and decomposition 
of wastes.
    Our Response: In the context of a critical habitat designation, the 
primary purpose of the rulemaking (i.e., the direct benefit) is to 
designate areas in need of special management that contain the features 
that are essential to the conservation of listed species.
    The designation of critical habitat may result in two distinct 
categories of benefits to society: (1) Use; and (2) non-use benefits. 
Use benefits are simply the social benefits that accrue from the 
physical use of a resource. Visiting critical habitat to see endangered 
species in their natural habitat would be a primary example. Non-use 
benefits, in contrast, represent welfare gains from ``just knowing'' 
that a particular listed species' natural habitat is being specially 
managed for the survival and recovery of that species. Both use and 
non-use benefits may occur unaccompanied by any market transactions.
    A primary reason for conducting this analysis is to provide 
information regarding the economic impacts associated with a proposed 
critical habitat designation. Section 4(b)(2) of the Act requires the 
Secretary to designate critical habitat based on the best scientific 
data available after taking into consideration the economic impact, and 
any other relevant impact, of specifying any particular area as 
critical habitat. Economic impacts can be both positive and negative 
and by definition,

[[Page 74119]]

are observable through market transactions.
    Where data are available, this analysis attempts to recognize and 
measure the net economic impact of the proposed designation. For 
example, if the fencing of a species' habitat to restrict motor 
vehicles results in an increase in the number of individuals visiting 
the site for wildlife viewing, then the analysis would recognize the 
potential for a positive economic impact and attempt to quantify the 
effect (e.g., impacts that would be associated with an increase in 
tourism spending by wildlife viewers). In this particular instance, 
however, the economic analysis did not identify any credible estimates 
or measures of positive economic impacts that could offset some of the 
negative economic impacts analyzed earlier in this analysis.
    Under Executive Order 12866, OMB directs Federal agencies to 
provide an assessment of both the social costs and benefits of proposed 
regulatory actions. OMB's Circular A-4 distinguishes two types of 
economic benefits: direct benefits and ancillary benefits. Ancillary 
benefits are defined as favorable impacts of a rulemaking that are 
typically unrelated, or secondary, to the statutory purpose of the 
rulemaking. In the context of critical habitat, the primary purpose of 
the rulemaking (i.e., the direct benefit) is the potential to enhance 
conservation of the species. The published economics literature has 
documented that social welfare benefits can result from the 
conservation and recovery of endangered and threatened species. In its 
guidance for implementing Executive Order 12866, OMB acknowledges that 
it may not be feasible to monetize, or even quantify, the benefits of 
environmental regulations due to either an absence of defensible, 
relevant studies or a lack of resources on the implementing agency's 
part to conduct new research. Rather than rely on economic measures, 
the Service believes that the direct benefits of the proposed rule are 
best expressed in biological terms that can be weighed against the 
expected cost impacts of the rulemaking.
    We have accordingly considered, in evaluating the benefits of 
excluding versus including specific area, the biological benefits that 
may occur to a species from designation (see below, Exclusions Under 
section 4(b)(2) of the Act), but these biological benefits are not 
addressed in the economic analysis.
    (27) Comment: The same commenter objected to the attribution of 
conservation costs that benefit multiple sympatric species solely to 
Astragalus lentiginosus var. coachellae in the DEA.
    Our Response: The DEA discusses other relevant regulations and 
protection efforts for other listed species that include Astragalus 
lentiginosus var. coachellae and its habitat. In general, the analysis 
errs conservatively in order to make certain the economic effects have 
not been missed. It treats as ``coextensive'' other Federal and State 
requirements that may result in overlapping protection measures (e.g., 
California Environmental Quality Act) for the plant. The economic 
analysis distributes the cost of conserving A. l. var. coachellae 
habitat equally among the number of other listed species likely to co-
exist with A. l. var. coachellae as indicated by the historical 
consultations. None of the past A. l. var. coachellae consultations 
focused solely on A. l. var. coachellae but rather on other listed and 
sensitive species co-occurring in the area. Within a biological opinion 
or HCP that covers several species, we are unable to accurately 
segregate out the cost for an individual species from the rest of the 
species covered in the biological opinion or HCP.
    (28) Comment: The same commenter stated that the DEA does not make 
a distinction between the costs of listing the species under the Act 
versus designating critical habitat.
    Our Response: The economic analysis is intended to assist the 
Secretary in determining whether the benefits of excluding particular 
areas from the designation outweigh the biological benefits of 
including those areas in the designation. Also, this information allows 
us to comply with direction from the U.S. 10th Circuit Court of Appeals 
that ``co-extensive'' effects should be included in the economic 
analysis to inform decision-makers regarding which areas to designate 
as critical habitat (New Mexico Cattle Growers Association v. U.S. Fish 
and Wildlife Service (248 F.3d 1277)).
    This analysis identifies those potential activities believed to be 
most likely to threaten Astragalus lentiginosus var. coachellae and its 
habitat and, where possible, quantifies the economic impact to avoid, 
mitigate, or compensate for such threats within the boundaries of the 
critical habitat designation. Where critical habitat is being proposed 
after a species is listed, some future impacts may be unavoidable, 
regardless of the final designation and exclusions under section 
4(b)(2). However, due to the difficulty in making a credible 
distinction between listing and critical habitat effects within 
critical habitat boundaries, this analysis considers all future 
conservation-related impacts to be co-extensive with the designation.
    (29) Comment: A commenter contended that pre-designation impacts 
are attributed to the listing of the species and not critical habitat, 
and therefore should not be included in the DEA.
    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. coachellae. The 
Act defines critical habitat to mean those specific areas that are 
essential to the conservation of the species. The Act also 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 the Act to mean 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, that 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.
    (30) Comment: A commenter questioned the framework for quantifying 
conservation-related costs in the DEA of critical habitat for 
Astragalus lentiginosus var. coachellae for flood control projects, 
local transportation projects, California Department of Transportation 
(Caltrans) mitigation, and all other projects within the boundaries of 
the draft Coachella Valley MSHCP/NCCP as these projects and the costs 
associated with them are covered under the draft Coachella Valley 
MSHCP/NCCP.
    Our Response: As described in Section 8.6.2 of the DEA, the post-
designation Coachella Valley MSHCP/NCCP costs captured by the DEA 
include management, monitoring, and administration of the Coachella 
Valley MSHCP/NCCP reserve system. These costs are calculated and 
allocated based on the rate of projected development within the units. 
Other non-development related activities also contribute funds toward 
the management, monitoring and management of the Coachella Valley 
MSHCP/NCCP. As described in Section 6.1.2.2 of the DEA, CVAG, the joint

[[Page 74120]]

powers authority functioning as lead agency for the preparation of the 
draft Coachella Valley MSHCP/NCCP, is expected to contribute 
approximately $1 million toward management, monitoring, and 
administration of the Coachella Valley MSHCP/NCCP for transportation 
projects. The costs related to these transportation projects are not 
captured in the estimated Coachella Valley MSHCP/NCCP costs. 
Furthermore, as described in Sections 6.1.2.3 and 8.1.1.2 of the DEA, 
the costs captured in the DEA for Caltrans mitigation and flood control 
are related to land acquisitions, and land acquisition costs were not 
captured in the estimated Coachella Valley MSHCP/NCCP costs. The 
Coachella Valley MSHCP/NCCP costs estimated in the DEA include 
management, monitoring, and administration of the Coachella Valley 
MSHCP/NCCP reserve system.
    (31) Comment: The same commenter questioned the use of cost 
information from the draft Coachella Valley MSHCP/NCCP in the DEA since 
the Coachella Valley MSHCP/NCCP is not yet finalized and will not be 
prior to final designation of critical habitat for Astragalus 
lentiginosus var. coachellae.
    Our Response: As described in Section 1.3 of the DEA, estimates of 
post-designation effects are based on activities that are ``reasonably 
foreseeable,'' including, but not limited to, activities that are 
currently authorized, permitted, or funded, or for which proposed plans 
are currently available to the public. The draft Coachella Valley 
MSHCP/NCCP falls under this latter category. While in draft form, 
planning and development of the Coachella Valley MSHCP/NCCP began 12 
years ago in 1994, and it is anticipated that the Coachella Valley 
MSHCP/NCCP will become permitted by year-end 2005. Furthermore, as 
described in response to Issue 1, considering the Coachella Valley 
MSHCP/NCCP costs captured by the DEA are separate from the estimated 
non-development-related costs, there are no double counting issues.
    (32) Comment: A commenter questioned the consistency in the 
allocation of habitat conservation plan-related costs to Astragalus 
lentiginosus var. coachellae in the DEA. In particular, the commenter 
questioned why conservation costs to develop the Agua Caliente Band of 
Cahuilla Indians HCP were not allocated to costs of critical habitat 
for Astragalus lentiginosus var. coachellae.
    Our Response: As described in Section 3.4 of the DEA, a draft HCP 
proposing coverage for 24 species, including Astragalus lentiginosus 
var. coachellae, has been developed for the Agua Caliente Indian 
Reservation. In the proposed rule, we did not identify habitat on Agua 
Caliente Tribal lands as containing features essential for the 
conservation of the Astragalus lentiginosus var. coachellae, thus, no 
pre or post-designation costs are estimated on Tribal lands as 
associated with the critical habitat designation.
    (33) Comment: A commenter questioned the relevancy of some of the 
development-related Astragalus lentiginosus var. coachellae 
conservation costs described in Table 13. Specifically, the commenter 
questioned the inclusion of costs that do not directly or indirectly 
benefit A. l. var. coachellae.
    Our Response: As described in Section 5.1 of the DEA, the section 7 
consultation history involving Astragalus lentiginosus var. coachellae 
and development projects was reviewed. The consultation history for A. 
l. var. coachellae provides the types of conservation activities 
incurred by developers for conserving A. l. var. coachellae and its 
habitat. The costs associated with these consultations are not included 
in the DEA as these projects occurred in areas not identified in the 
proposed CHD. However, the information on the conservation activities 
is provided for background information on conservation efforts for the 
species and its habitat. Furthermore, while the commenters do not cite 
specific examples of costs included in the analysis that do not 
directly or indirectly benefit A. l. var. coachellae, this analysis 
does not include conservation costs for activities that do not benefit 
A. l. var. coachellae.
    (34) Comment: A commenter questioned the DEA's derivation of the 
``not allocated'' pre-designation costs of conserving Astragalus 
lentiginosus var. coachellae incurred by development in essential 
habitat in Table 15 of the DEA.
    Our Response: The commenter is correct; Section 5.1.4 and Table 15 
in the DEA are incorrect. Based on the consultation history for 
Astragalus lentiginosus var. coachellae, there have been five informal 
consultations and one formal consultation where the project proponent 
was required to implement A. l. var. coachellae conservation efforts. 
However, because these projects occurred in areas not identified in the 
proposed critical habitat designation, costs associated with these 
consultations are not included in this analysis. While the text and 
table in Section 5.1.4 of the DEA describe and estimate pre-designation 
costs for these projects, the remaining tables and text appropriately 
do not include these impacts. The final economic analysis will update 
Section 5.1.4 and Table 15 to exclude these costs; however, the final 
results of the report are not changed by this comment.
    (35) Comment: A commenter asserted that the methodology used to 
quantify development impacts in the DEA is questionable as it assumes 
that habitat will be destroyed and it does not examine the ability of 
habitat to be acquired.
    Our Response: Section 2.2.2.1 of the DEA describes the model 
applied to estimate impacts to development. The draft Coachella Valley 
MSHCP/NCCP has proposed implementation of a one-time mitigation fee for 
future development within the boundaries of the Coachella Valley MSHCP/
NCCP. These funds will be used by the County to finance the future 
acquisition of lands for the Coachella Valley MSHCP/NCCP reserve and 
are captured by the DEA (Section 5.2.1). The DEA assumes that 
development is allowed in habitat areas if appropriate mitigation fees 
paid. That is, this open city modeling approach assumes that land is 
not lost to development, but instead that development occurs with 
mitigation, for example, preserving habitat outside the footprint of 
the development project. It is uncertain which specific areas 
containing essential features may be developed during the forecast 
period and when those areas may be developed. By assuming that all 
future development is allowed in habitat areas with appropriate 
mitigation fees, the DEA captures the cost to development projects of 
protecting the plant and its habitat.
    (36) Comment: A commenter requested clarification on whether the 
Whitewater River/Thousand Palms Flood Control project is covered under 
the draft Coachella Valley MSHCP/NCCP, if it is on hold due to lack of 
funding, or if it is moving forward.
    Our Response: As described in Section 8.2.1 of the DEA, 
``Currently, the flood control project has been delayed due to a lack 
of funding for the project. Therefore, at this time it is not possible 
to determine what, if any, additional measures may be required due to 
the proposed project redesign. However, the flood control project is a 
``Covered Activity'' in the draft Coachella Valley MSHCP.''
    (37) Comment: A commenter questioned the ``not allocated'' pre-
designation costs in Table 27 of the DEA of conserving Astragalus 
lentiginosus var. coachellae incurred by the BLM in areas containing 
features essential to the conservation of A. l. var. coachellae.

[[Page 74121]]

    Our Response: The commenter identified a mistake in Table 27 of the 
DEA. These costs occurred in areas not identified in the proposed 
critical habitat designation and should not be included in this Table. 
The remaining tables and text in the DEA appropriately do not include 
these impacts. The final economic analysis will update Table 27 to 
exclude these costs; however, the final results of the report are not 
changed by this comment.
    (38) Comment: A commenter stated the cost model used in the DEA to 
estimate the administrative cost of section 7 consultation is highly 
inflated.
    Our Response: As described in Section 2.2 of the DEA, the cost 
model is based on a survey of Federal agencies and Service Field 
Offices across the country and the costs are believed to be 
representative of the typical range of costs of the section 7 
consultation process. Throughout the development of the DEA, 
stakeholders were asked whether the range of estimated consultation 
costs was reasonable. In the case that stakeholders anticipated higher 
or lower costs, this improved information would be applied in the DEA. 
No stakeholders indicated, however, that the range of costs applied in 
the DEA was inappropriate.
    (39) Comment: A commenter stated that the cost estimates of species 
conservation as provided in the DEA conflict with the cost estimated in 
the draft Coachella Valley MSHCP/NCCP. Therefore, either the DEA or the 
draft Coachella Valley MSHCP/NCCP contains errors in its impact 
estimates.
    Our Response: Section E.S.5 of the draft Coachella Valley MSHCP/
NCCP summarizes the costs of implementing the plan, including non-
acquisition program administration costs, Monitoring Program, 
Management Program, and Adaptive Management Costs, and land acquisition 
and land improvement costs. The draft Coachella Valley MSHCP/NCCP 
estimates these costs will total almost $1.5 billion during the first 
75 years of implementing the Coachella Valley MSHCP/NCCP. This impact 
estimate, however, is not directly comparable to that in the DEA as the 
policy actions being analyzed are different. The draft Coachella Valley 
MSHCP/NCCP estimates the cost of acquiring and managing its reserve 
area and conservation actions for the multiple species covered under 
the plan. Further, the geographic scope of the draft Coachella Valley 
MSHCP/NCCP and the areas designated as critical habitat for Astragalus 
lentiginosus var. coachellae are different.
    (40) Comment: A commenter questioned the use of ``low income 
farmers'' as an example of a group that may be adversely affected by 
species conservation in Section 1.1 of the DEA. The commenter stated 
that no Federal nexus exists for farming activity and therefore farming 
is exempt from any regulation by the Endangered Species Act.
    Our Response: As described in Appendix A of the DEA, approximately 
39 ac (16 ha ) of private lands in Units 1 and 2 are classified as 
agriculture land and were included in proposed critical habitat. While 
the number of agriculture acres was negligible in the proposed rule, 
and actually not designated as critical habitat in the final rule, the 
use of farmers as an example of a group of individuals that could be 
impacted in Section 1.1 of the DEA is simply for illustrative purposes 
and is considered appropriate. In addition, while a Federal nexus may 
not exist for farming activities, the DEA quantifies coextensive 
effects. As defined in Section 1.2, the DEA estimates impacts 
associated with overlapping protective measures of other Federal, 
State, and local laws that aid habitat conservation in the areas 
proposed for designation.
    (41) Comment: A commenter requested that a more equitable input-
output model be used to evaluate the regional economic effects in the 
DEA.
    Our Response: As described in Section 1.1.2.2 of the DEA, it was 
assumed that development is not restricted by critical habitat 
designation, but that developers will instead mitigate their activities 
through mitigation fee payments to address Astragalus lentiginosus var. 
coachellae conservation concerns. Therefore, regional economic impacts 
are not expected as a result of A. l. var. coachellae conservation 
efforts.
    (42) Comment: A commenter mentioned that critical habitat for 
plants has no jurisdiction on private lands that lack a federal nexus 
and that the DEA does not address this issue.
    Our Response: As described in Section 2.2.2 of the DEA, the 
critical habitat designation for Astragalus lentiginosus var. 
coachellae or any other threatened or endangered species has the 
potential to impose costs on private individuals or groups of 
individuals if there is a connection or nexus between private 
activities and Federal actions. For example, if a Federal permit is 
required before developers can begin construction or if there is 
Federal funding for a private activity, then it is possible that the 
provisions of the Act, including critical habitat designation, may 
potentially restrict private actions if the action results in a section 
7 consultation. This analysis appropriately identifies and analyzes 
economic impacts on activities that may occur on private lands within 
the proposed critical habitat areas. Furthermore, the DEA is not 
limited to only those activities with a Federal nexus. As described in 
Section 1.1, the DEA quantifies costs associated with measures taken to 
protect the species and its habitat, not just section 7-related costs.
    (43) Comment: A commenter stated Section 4.3.2 of the DEA must be 
modified to clarify that benefits are limited to areas where Astragalus 
lentiginosus var. coachellae and fringe-toed lizard are sympatric, not 
through the whole range of A. l. var. coachellae.
    Our Response: This comment clarifies statements in the DEA on page 
46. This comment does not change the results of the report.

Summary of Changes From the Proposed Rule

    In developing the final designation of critical habitat for 
Astragalus lentiginosus var. coachellae, we reviewed peer and public 
comments received on the proposed designation of critical habitat 
published on December 14, 2004 (69 FR 74468) and draft economic 
analysis published on September 27, 2005 (70 FR 56434); conducted 
further evaluation of lands proposed as critical habitat; updated our 
mapping parcel data; and were more precise with our mapping.
    We modified our mapping process in the final rule from the proposed 
rule to remove 675 ac (272 ha) of Service's Refuge lands and private 
lands that were inadvertently proposed as critical habitat. These lands 
were either already excluded from critical habitat under section 
4(b)(2) of the Act or did not contain features essential for the 
conservation of Astragalus lentiginosus var. coachellae. In the 
proposed rule, we used a process that overlaid a grid on areas 
containing features essential for the conservation of A. l. var. 
coachellae in order to produce legal Universal Transverse Mercator 
(UTM) coordinates that represented the critical habitat boundaries. 
This gridding process extended the legal boundaries beyond the 
boundaries of the areas containing essential features and consequently 
included private lands that did not contain essential features or 
included private lands and Service Refuge lands that contained 
essential features, but were intended to be excluded under section 
4(b)(2) of the Act. For the final designation, we have abandoned the 
use of the gridding process and have based

[[Page 74122]]

the legal coordinates precisely on the boundaries of the areas 
containing essential features. Based on this mapping modification, we 
removed all proposed private and Service Refuge lands (675 ac (272 ha)) 
from critical habitat.
    In addition to the non-Federal lands that were excluded pursuant to 
section 4(b)(2) of the Act based on their coverage under the draft 
Coachella Valley MSHCP/NCCP, we have also excluded BLM lands that were 
proposed as critical habitat. BLM is an official cooperator with the 
Coachella Valley MSHCP/NCCP and has committed to manage their lands 
consistent with the MSHCP/NCCP under their California Desert 
Conservation Area Plan Amendment for the Coachella Valley that was 
signed in 2002 (see section titled Pending Coachella Valley Multiple 
Species Habitat Conservation Plan and Natural Community Conservation 
Plan (MSHCP/NCCP for a more detailed discussion).
    We have also determined that BLM and Service Refuge (Coachella 
Valley National Wildlife Refuge) lands within the Coachella Valley 
Preserve System do not meet the definition of critical habitat under 
section 3(5)(A) of the Act since these lands may not require special 
management considerations due to their inclusion and management within 
the Coachella Valley Preserve System under the Coachella Valley Fringe-
Toed Lizard HCP. Both the BLM and the Service entered into an MOU with 
the Coachella Valley Fringe-Toed Lizard HCP in 1986 that defined their 
roles and responsibilities for managing their lands within the 
Coachella Valley Preserve System. Conservation measures outlined in the 
Coachella Valley Fringe-Toed Lizard HCP also benefit Astragalus 
lentiginosus var. coachellae since it has similar habitat requirements 
as the Coachella Valley fringe-toed lizard for sandy soils. Based on 
this HCP and MOU, we have not included 3,527 ac (1,427 ha) of Service 
Refuge lands from Unit 3 and 128 ac (52 ha) of BLM lands from all three 
units (see section titled Relationship of Critical Habitat to Federal 
Lands within the Coachella Valley Fringe-Toed Lizard HCP--Application 
of Section 3(5)(A) of the Act for a more detailed discussion). Table 1 
reflects the changes made in this final rule and outlines the total 
area containing habitat with features essential to the conservation of 
A. l. var. coachellae, areas excluded from final critical habitat under 
the pending Coachella Valley MSHCP/NCCP or not included based on the 
approved Coachella Valley Fringe-Toed Lizard HCP, and total area 
designated as final critical habitat.

   TABLE 1.--Total Area Containing Habitat With Essential Features, Areas Excluded From Final Critical Habitat
 Under the Pending Coachella Valley MSHCP/NCCP, and Areas Not Included as Critical Habitat Within the Coachella
  Valley Preserve System Under the Coachella Valley Fringe-Toed Lizard HCP, and Total Area Designated as Final
                      Critical Habitat for Astragalus lentiginosus var. coachellae (ac/ha)
----------------------------------------------------------------------------------------------------------------
                                      Total area                            Area not included      Total area
                                  containing habitat  Area excluded under    under Coachella      designated as
     Critical habitat unit          with essential     pending Coachella    Valley Fringe-Toed   final critical
                                       features        Valley MSHCP/NCCP        Lizard HCP           habitat
----------------------------------------------------------------------------------------------------------------
1. Whitewater River System.....  8,210 ac...........   8,188 ac..........   22 ac.............  0 ac.
                                 (3,323 ha).........  (3,314 ha).........  (9 ha).............  (0 ha).
2. Mission Creek/Morongo Wash    4,699 ac...........   4,607 ac..........   92 ac.............   0 ac.
 System.                         (1,901 ha).........  (1,864 ha).........  (37 ha)............  (0 ha).
3. Thousand Palms System.......  4,837 ac...........   1,296 ac..........   3,541 ac..........   0 ac.
                                 (1,958 ha).........  (525 ha)...........  (1,433 ha).........  (0 ha).
                                ----------------------
    Total......................   17,746 ac.........   14,091 ac.........   3,655 ac..........   0 ac.
                                 (7,182 ha).........  (5,703 ha).........  (1,480 ha).........  (0 ha).
----------------------------------------------------------------------------------------------------------------

    In the proposed rule we requested comment on the potential 
inclusion of unoccupied sand source areas downwind and downstream of 
suitable habitat. We received feedback from three commenters, all of 
whom supported including these areas in the critical habitat 
designation as areas containing habitat with features essential to the 
conservation of the taxon. We acknowledge the importance of sand to 
this species in the Primary Constituent Elements section and have 
determined that inclusion of the sand sources areas in the final 
critical habitat designation is not essential to the conservation of 
the species as these areas are both unoccupied and unsuitable for 
Astragalus lentiginosus var. coachellae. Finally, the draft Coachella 
Valley MSHCP/NCCP is proposing to protect sand source areas in a way 
that will benefit A. l. var. coachellae.
    Our Primary Constituent Elements have been revised to reflect only 
features essential for the conservation of Astragalus lentiginosus var. 
coachellae on lands that are occupied by this taxon and on which we are 
designating critical habitat. The Primary Constituent Elements in the 
proposed rule included features that occurred only on lands that are 
not expected to ever be occupied by A. l. var. coachellae (sand source 
areas), and which we do not consider to be essential to the 
conservation of this species.
    We have included a discussion in the Section 7 Consultation section 
that explains the relationship between critical habitat and BLM 
activities that are covered under their California Desert Conservation 
Area Plan.
    We changed the land ownership data in GIS for the final rule. We 
determined that the ownership data provided by the CVAG is superior to 
the State ownership data that was used in the proposed rule because it 
is a region-specific dataset that is currently being used in land 
management planning for the Coachella Valley region. This changed the 
land ownership classification for areas in the proposed rule that were 
thought to be State Lands Commission lands. These lands were 
reclassified in the final rule as either private or CVWD lands under 
the CVAG's dataset. Because of our section 4(b)(2) exclusion 
determinations

[[Page 74123]]

for this designation, lands under these ownerships were excluded from 
critical habitat designation.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. Conservation, as defined under section 3 of the Act means 
to use and the use of all methods and procedures which are necessary to 
bring any endangered species or threatened species to the point at 
which the measures provided pursuant to the Act are no longer 
necessary. Such methods and procedures include, but are not limited to, 
all activities associated with scientific resources management such as 
research, census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot be otherwise relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the 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. Section 7 is a 
purely protective measure and does not require implementation of 
restoration, recovery, or enhancement measures.
    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 using the best scientific 
data available, habitat areas that provide essential life cycle needs 
of the species (i.e., areas on which are found the primary constituent 
elements, as defined at 50 CFR 424.12(b)).
    Habitat occupied at the time of listing 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).) Accordingly, when the best available scientific data 
do not demonstrate that the conservation needs of the species require 
additional areas, we will not designate critical habitat in areas 
outside the geographical area occupied by the species at the time of 
listing. An area currently occupied by the species but was not known to 
be occupied at the time of listing will likely, but not always, be 
essential to the conservation of the species and, therefore, typically 
included in the critical habitat designation.
    The Service's 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 the associated Information Quality Guidelines issued by the 
Service, provide criteria, establish procedures, and provide guidance 
to ensure that decisions made by the Service represent the best 
scientific data available. They require Service biologists to the 
extent consistent with the Act and with the use of the best scientific 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
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 the associated Information Quality Guidelines 
issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific data available in determining areas that are essential to 
the conservation of Astragalus lentiginosus var. coachellae. This 
includes information from our own documents, including the final rule 
listing the taxon as endangered (63 FR 53596), recent biological 
surveys, reports, aerial photos, and other documentation. We also used 
the habitat model developed by the Coachella Valley Mountain 
Conservancy (CVMC) for the proposed Coachella Valley MSHCP/NCCP (CVMC 
2004), as a starting point for identification of areas with habitat 
that contain features essential to the conservation of this taxon and 
compared it to data from other plant surveys.
    We have also reviewed available information that pertains to the 
habitat requirements of this species. We used published historical 
surveys for Astragalus lentiginosus var. coachellae and ecological 
descriptions of the Sonoran Desert (Abrams 1944, Munz and Keck 1959, 
Shreve and Wiggins 1964, Turner and Brown 1982, Holland 1986) to 
describe the range of environmental conditions in which the plant 
existed prior to current landscape changes that have resulted in the 
loss of the species' habitats. We used data in

[[Page 74124]]

reports submitted during section 7 consultations and by biologists 
holding section 10(a)(1)(A) recovery permits to evaluate the habitat 
model developed for the plant (Sanders and Thomas Olsen Associates 
1996, Service unpublished Geographic Information System (GIS) data). We 
also used agency and academic reports to describe the sand transport 
systems (Lancaster et al 1993, Griffiths et al. 2002) and used reports 
about related varieties of Astragalus lentiginosus to describe its 
ecology and phenology (Beatley 1974, Forseth et al. 1984, and Pavlik 
1985). Finally, we used information and materials submitted during the 
public comment period for the proposed critical habitat rule.

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 designate as critical 
habitat that were within the geographic area occupied by the species at 
the time of listing, we are required to base critical habitat 
determinations on the best scientific data available and to consider 
those physical and biological features (primary constituent elements 
(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.
    The primary constituent elements essential to the conservation of 
Astragalus lentiginosus var. coachellae are derived from the physical 
and biological features that are essential to the conservation of this 
taxon as described below.

Space for Individual and Population Growth Within the Eolian (Wind-
Blown) Sand Transport System

    Astragalus lentiginosus var. coachellae has a limited distribution. 
The majority of populations are found in the Coachella Valley area, 
mostly in and around Snow Creek, Whitewater River, Mission and Morongo 
Creeks, Willow Hole, Big Dune, and Coachella Valley Preserve areas 
(Bureau of Land Management, unpublished data 2001b). There are also 
several historic and recent records southeast of the Coachella Valley 
in the Chuckwalla Valley, along approximately a 5-mile portion of 
Highway 177 northeast of Desert Center (Bureau of Land Management, 
unpublished data 2001a).
    Astragalus lentiginosus var. coachellae populations in the 
Coachella Valley are strongly affiliated with active, stabilized, and 
shielded sandy substrates (Holland 1986, Sanders and Thomas Olsen 
Associates 1996). This taxon is primarily found on loose eolian (wind 
transported) and rarely on alluvial (water transported) sands that are 
located on dunes or flats, and along disturbed margins of washes 
(Barneby 1964). The highest densities of A. l. var. coachellae have 
been found in locations containing large deposits of eolian sand, 
including Snow Creek (Sanders and Thomas Olsen Associates 1996), Big 
Dune, and Willow Hole areas (Bureau of Land Management, unpublished 
data 2001b).
    The sandy substrates that provide suitable habitat for Astragalus 
lentiginosus var. coachellae are extremely dynamic in terms of spatial 
mobility and tendency to change back and forth from active to 
stabilized (Lancaster 1995). This has significant consequences for A. 
l. var. coachellae because their population densities vary with 
different types of sandy substrates. For instance, the greatest 
densities of plants have been recorded on dune and hummock habitats, 
such as Big Dune, Snow Creek and Willow Hole, whereas smaller densities 
of plants have been recorded on stabilized sand fields (Bureau of Land 
Management, unpublished GIS data 2001b). Conserving a wide variety of 
sandy substrate types is important for the conservation of A. l. var. 
coachellae because of the dynamics of the eolian sand transport 
processes.
    Active dunes are generally characterized as barren expanses of 
moving sand where perennial shrub species are sparse. These dunes may 
intergrade with stabilized or partially stabilized dunes, which have 
similar sand accumulations and formations, but are stabilized by 
evergreen or deciduous shrubs, scattered low annuals, and perennial 
grasses.
    Active sand fields are similar to active dunes, but are 
characterized as smaller sand accumulations that are not of sufficient 
depth to form dune formations. These may be characterized as hummocks 
forming behind individual shrubs or clumps of vegetation.
    Stabilized sand fields are similar to active sand fields, but 
contain sand accumulations that are stabilized by vegetation or are 
armored. Armoring is the process where the wind picks up and moves 
small sand grains, and leaves behind larger sand grains forming an 
``armor'' that prevents wind from moving additional smaller particles 
trapped below (Sharp and Saunders 1978). The stabilized sand fields in 
the latter case are temporary, becoming active when the armor is 
disturbed over large areas, or new blow sand is deposited from upwind 
fluvial depositional areas.
    Astragalus lentiginosus var. coachellae is also found in shielded 
sand dunes and fields. These areas have similar sand formations as 
compared to active and stabilized sand dunes and fields, except that 
sand source and transport systems that would normally replenish these 
areas have been interrupted or shielded by human development.
    Astragalus lentiginosus var. coachellae also occurs in localized 
patches of eolian sand or in active washes that are, in some cases, 
fairly distant from large dunes or sand field areas. Some of these 
localized patches of eolian sands are characterized as ephemeral sand 
accumulations lacking dune formation. This type of habitat generally 
occurs at the western end of the Coachella Valley where wind velocities 
are highest (Sharp and Saunders 1978).
    Astragalus lentiginosus var. coachellae fruiting bodies are 
inflated, an apparent adaptation for being dispersed by wind. 
Protecting wind transport corridors between A. l. var. coachellae 
populations from obstruction is important for allowing inflated fruit 
pods to disperse to other areas and promote gene flow among 
populations. Protecting these corridors is also important for allowing 
pollinators to reach different populations and presumably assist in 
also maintaining gene flow. Finally, some of the fine sands blowing 
across the corridor are deposited and occasionally accumulate and serve 
as ephemeral habitat.

Primary Constituent Elements for Astragalus lentiginosus var. 
coachellae

    Based on our current knowledge of the life history, biology, and 
ecology of the species and the requirements of the habitat to sustain 
the essential life history functions of the species, we have determined 
that Astragalus lentiginosus var. coachellae's primary constituent 
elements are:
    1. Active sand dunes, characterized as large accumulations of 
moving sand with sparse perennial shrub cover that are contained within 
one of the three major sand transport systems (Whitewater River, 
Mission Creek and

[[Page 74125]]

Morongo Wash, and Thousand Palms sand transport systems), that provide 
soil conditions for the growth of Astragalus lentiginosus var. 
coachellae.
    2. Stabilized or partially stabilized sand dunes containing 
evergreen or deciduous shrubs, scattered low annuals, or perennial 
grasses that are contained within one of the three major sand transport 
systems (Whitewater River, Mission Creek and Morongo Wash, and Thousand 
Palms sand transport systems) and providing soil conditions for 
individual population growth of Astragalus lentiginosus var. 
coachellae.
    3. Active or stabilized sand fields containing smaller sand 
accumulations than dunes and are often characterized as hummocks 
forming on leeward sides of shrubs that are contained within one of the 
three major sand transport systems (Whitewater River, Mission Creek and 
Morongo Wash, and Thousand Palms sand transport systems) and providing 
soil conditions for individual growth of Astragalus lentiginosus var. 
coachellae. Stabilized fields are similar to active fields but contain 
sands stabilized by vegetation or that are armored.
    4. Shielded sand fields or dunes that are contained within one of 
the three major sand transport systems (Whitewater River, Mission Creek 
and Morongo Wash, and Thousand Palms sand transport systems) and 
providing soil conditions for individual growth of Astragalus 
lentiginosus var. coachellae. These habitat features are similar to 
active or stabilized sand fields or dunes, except the sand source is no 
longer able to replenish these areas with new sand due to anthropogenic 
factors.
    5. Active washes containing fluvial sand deposits that are 
contained within one of the three major sand transport systems 
(Whitewater River, Mission Creek and Morongo Wash, and Thousand Palms 
sand transport systems) and providing soil conditions for individual 
growth of Astragalus lentiginosus var. coachellae.
    6. Ephemeral non-sandy areas within the sand transport system where 
mass movements of sand by eolian processes can occur and that are 
contained within one of the three major sand transport systems 
(Whitewater River, Mission Creek and Morongo Wash, and Thousand Palms 
sand transport systems) and providing soil conditions for individual 
growth of Astragalus lentiginosus var. coachellae.

Unoccupied Areas Identified for Possible Inclusion

    The Act has different standards for designation of critical habitat 
in occupied and unoccupied habitat. For areas occupied by the species, 
these are `` (i) the specific areas on which are found those physical 
and biological features essential to the conservation of the species 
and that may require special management considerations or protection. 
For areas not occupied, a determination is required that the entire 
area is essential for the conservation of the species before it can be 
included in critical habitat. Congress has also cautioned the Service 
to be ``exceedingly circumspect'' in designating unoccupied areas as 
critical habitat.
    Our proposed rule included a section containing Unoccupied Areas 
Identified for Possible Inclusion, for which we requested comment 
regarding whether all, only a portion, or none of these areas should be 
included in the designation. Astragalus lentiginosus var. coachellae's 
PCEs are dependent on sand being continually replenished from sand 
source areas upwind and upstream of where it occupies. Those areas 
identified for possible inclusion included sand source areas (mountain 
drainages) for each Unit that function to provide fluvial sediment 
containing sands to fluvial depositional areas where wind transports 
the sands to areas that support the taxon's PCEs. Areas identified for 
specific review included mountain drainages in the San Bernardino and 
San Jacinto mountains for Unit 1, mountain drainages in the eastern San 
Bernardino and Little San Bernardino mountains for Unit 2, and mountain 
drainages in the Indio Hills west of Thousand Palms Canyon for Unit 3. 
For a more detailed discussion on the function of these sand source 
areas see Areas Containing the Fluvial and Eolian Processes That 
Generate Suitable Habitat in the proposed designation of critical 
habitat for A. l. var. coachellae (69 FR 74468). We also requested 
comment on whether the draft Coachella Valley MSHCP/NCCP would provide 
for sufficient sand transport to maintain A. l. var. coachellae, and 
whether there are threats to sand source areas that would be addressed 
by designating them as critical habitat.
    Although peer review and public comment were generally favorable 
towards including the unoccupied sand source areas in the final 
critical habitat designation, we are only designating areas actually 
occupied at the time of listing in 1998. We have determined that the 
presence of active sand dunes (PCE 1) is an essential feature, and we 
have designated them as a PCE. We believe that the PCEs adequately 
describe the essential function of the seed source areas in occupied 
areas. Further, we believe the draft Coachella Valley MSHCP/NCCP will 
adequately address the issue of protecting the function of these sand 
source areas so that they continue to replenish sands to protected 
sandy habitat areas in the Coachella Valley.

Criteria Used To Identify Critical Habitat

    We are designating critical habitat on lands that we have 
determined were occupied at the time of listing, are currently known to 
be occupied, contain the primary constituent elements essential for the 
conservation of Astragalus lentiginosus var. coachellae, and may be in 
need of special management considerations or protection
    We reevaluated the proposed designations based on public comment, 
peer review of the proposed rule, the economic analysis of the proposed 
rule, the public comments on that analysis, and other available 
information, to ensure that the designation accurately reflects habitat 
with the PCEs that is essential to the conservation of Astragalus 
lentiginosus var. coachellae. All areas identified in the model are 
within the historical and current ranges of A. l. var. coachellae and 
contain the PCEs described above. Rather than designate every area 
containing PCEs, we designated only those areas which available 
evidence suggests those areas support the numbers and distribution of 
A. l. var. coachellae conservation. Areas for which the evidence 
available at this time was less certain were not included in this 
designation, although we believe these areas to be important to the 
species and may include them in future recovery plans. We designated 
critical habitat for A. l. var. coachellae in areas that are necessary 
to advance at least one of the following conservation criteria:
    (1) The conservation of areas representative of the geographic 
distribution of the species since species that are protected across 
their ranges have lower chances of extinction (Soule and Simberloff 
1986; Pavlik 1996; Noss et al. 1999);
    (2) The conservation of areas representative of the ecological 
distribution of the species. Astragalus lentiginosus var. coachellae is 
associated with various sandy soil types and vegetation communities. 
Maintaining the full range of varying habitat types and characteristics 
for a species is necessary because it would include the full extent of 
the physical and biological conditions necessary for the species (Noss 
et al. 2002).

[[Page 74126]]

    (3) The conservation of areas necessary to allow movement of pollen 
and seeds between areas representative of the geographic and ecological 
distribution of Astragalus lentiginosus var. coachellae.
    (4) The conservation of areas that still function within one of 
three major sand transport systems within the geographic range of this 
taxon in the northern Coachella Valley. These three systems named for 
the purposes of this rule are the Whitewater River, Mission Creek/
Morongo Wash, and Thousand Palms sand transport systems. The sand 
transport systems are very important for sustaining the various types 
of sandy habitats required by Astragalus lentiginosus var. coachellae 
in the Coachella Valley. The eolian sands in the valleys originate in 
the drainage basins in the surrounding mountains. Major precipitation 
and flooding episodes erode sediment from the hillslopes and carry it 
downstream through the fluvial systems. Fine-grained sediments are 
deposited in either bajadas (alluvial fans) or depositional areas that 
form the supply of sand for the eolian sand transport system.
    In cases where more occupied areas were present than were needed 
for the conservation of the geographic or ecological distribution of 
the species, we gave priority to areas which were would be receiving 
protection under the draft Coachella Valley MSHCP/NCCP.
    Astragalus lentiginosus var. coachellae is one of the species 
proposed for coverage by the proposed Coachella Valley MSHCP/NCCP. A 
spatially explicit habitat model for the plant in the Coachella Valley 
spanning from Cabezon to Thousand Palms was created to assist in the 
design of preserves and to evaluate the potential benefits of the 
MSHCP/NCCP on A. l. var. coachellae (Coachella Valley Mountain 
Conservancy (CVMC) 2004). We used this habitat model to assist us in 
identifying specific areas to designate as critical habitat for the A. 
l. var. coachellae. The model was developed with occurrence data for A. 
l. var. coachellae (Bureau of Land Management, unpublished data 2001b). 
Environmental variables associated with the occurrence locations were 
identified and maps containing those variables were combined with GIS 
land use and habitat information to create the model. Eight types of 
habitats were used in the model: (1) Margins of active dunes, (2) 
active shielded desert dunes, (3) stabilized desert dunes, (4) 
stabilized sand fields, (5) stabilized shielded sand fields, (6) 
ephemeral sand fields, (7) active sand fields, and (8) mesquite 
hummocks.
    Because the model has not been refined with any field data since it 
was developed (CVMC 2004), we reviewed the validity of the 
environmental variables used to create the model with occurrence data 
and information about the plant's ecology. We found records for 
Astragalus lentiginosus var. coachellae in all of the natural 
communities used to create the model. The areas we determined contain 
essential features for the conservation of this taxon include a mosaic 
of these habitat types, as well as intervening areas of ephemeral 
habitat to allow for the transport of wind-dispersed seed pods and 
eolian sands between locations containing large areas of habitat.
    Habitat with essential features for the conservation of Astragalus 
lentiginosus var. coachellae was mapped using GIS and refined using 
topographical and aerial map coverages. We excluded areas containing 
features essential for the conservation of this taxon that were covered 
under legally operative or nearly completed habitat conservation plans 
(HCPs) pursuant to section 4(b)(2) of the Act. Section 10(a)(1)(B) of 
the Act authorizes us to issue permits for the take of listed animal 
species incidental to otherwise lawful activities. An incidental take 
permit application must be supported by an HCP that identifies 
conservation measures that the permittee agrees to implement for the 
species to minimize and mitigate the impacts of the requested 
incidental take. We encourage HCP applicants to also incorporate 
measures to provide for the conservation of listed plant species. We 
often exclude non-Federal public lands and private lands that are 
covered by an existing operative HCP and executed implementation 
agreement (IA) under section 10(a)(1)(B) of the Act from designated 
critical habitat because the benefits of exclusion outweigh the 
benefits of inclusion as discussed in section 4(b)(2) of the Act.
    In the final rule, we described the legal Universal Transverse 
Mercator (UTM) coordinates, North American Datum 27, of the critical 
habitat boundaries by recording coordinates along actual boundaries of 
the areas containing features essential to the conservation of 
Astragalus lentiginosus var. coachellae. This is in contrast to the 
proposed critical habitat rule where we overlaid a 100-meter by 100-
meter grid on areas containing essential features to determine the 
critical habitat boundaries that were described as the legal UTM 
coordinates. The 100-meter gridding process in the proposed rule was 
used to provide a more easily describable boundary for habitat 
boundaries that are often non-linear. However, we abandoned using this 
process because it created confusion by inadvertently capturing areas 
outside of areas containing features essential to the conservation of 
this taxon or areas that were originally excluded pursuant to section 
4(b)(2) of the Act as described above.
    When determining critical habitat boundaries, we made every effort 
to avoid including within the boundaries of the map contained within 
this final rule developed areas such as buildings, paved areas, and 
other structures that lack primary constituent elements for Astragalus 
lentiginosus var. coachellae. The scale of the maps prepared under the 
parameters for publication within the Code of Federal Regulations may 
not reflect the exclusion of such developed areas. Any such structures 
and the land under them inadvertently left inside critical habitat 
boundaries shown on the maps of this final rule have been excluded by 
text in the proposed rule and are not designated as critical habitat. 
Therefore, Federal actions limited to these areas would not trigger 
section 7 consultation, unless they affect the species and/or primary 
constituent elements in adjacent critical habitat.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the primary 
constituent elements contained with the identified habitat 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 this taxon for inclusion in the 
designation pursuant to section 3(5)(A) of the Act. Secondly, we 
evaluate lands defined by those features to assess whether they may 
require special management considerations or protection. Threats to 
Astragalus lentiginosus var. coachellae's PCEs include direct and 
indirect effects of residential and commercial development and exotic 
plant species.
    Areas containing features essential to the conservation of 
Astragalus lentiginosus var. coachellae may require special management 
due to threats posed by urban development that are not designed to 
avoid direct destruction of A. l. var. coachellae's PCEs and that 
obstruct eolian sand transport to areas that contain the PCEs. On 
private lands, urban and golf course developments destroy plants and 
occupied habitat directly. Large housing and golf course

[[Page 74127]]

developments may also affect the localized wind and flooding regimes by 
reducing wind movement by the structures and landscaping and by 
changing the flooding and drainage patterns. Occupied habitats 
downstream and downwind of these developments, dependent upon the 
continuous replenishment of loose unconsolidated sands for their long-
term existence, may be degraded by the alteration, blockage, and 
reduction in their supply of sand. In addition, some areas may require 
special management due to other types of development that are also not 
designed to avoid direct impacts to Astragalus lentiginosus var. 
coachellae's PCEs and that obstruct eolian sand transport to areas that 
contain the PCEs. On public lands, the construction and operation of 
sand and gravel mining, dams, and percolation ponds in western 
Coachella Valley can directly impact plants and occupied habitat and 
decrease the amount of fluvial transported sediments to deposition 
areas downstream occupied habitats. For example, the percolation ponds 
constructed on BLM areas resulted in the direct loss of plants and 
occupied habitat and may have altered the transport of sand to 
downstream occupied habitats. Astragalus lentiginosus var. coachellae 
is threatened by the lack of minimization measures in project designs 
for operation and maintenance of these facilities that reduce both 
direct impacts to A. l. var. coachellae and its habitat and indirect 
impacts to sand transportation downstream and downwind from these 
facilities to occupied habitats. Finally, some areas may require 
special management due to other threats posed by invasive exotic plants 
to Astragalus lentiginosus var. coachellae's PCEs. On both private and 
public lands in the Coachella Valley region, the major invasive exotic 
plant species include Saharan mustard (Brassica tournefortii), 
Mediterranean grass (Schismus barbatus), and Russian thistle (Salsola 
tragus). The invasion of these exotic species is likely having indirect 
effects on Astragalus lentiginosus var. coachellae's PCEs by reducing 
wind velocity near ground level and stabilizing loose sediments that 
are a major component of the PCEs. The reduction in sand movement 
reduces the quality of the PCEs (loose-sandy habitat) that support A. 
l. var. coachellae populations and obstructs eolian sand transport to 
downwind areas containing PCEs. Further, the reduction in sand movement 
may reduce the amount of scarification that is often necessary to 
germinate A. l. var. coachellae's seeds.

Final Critical Habitat Designation

    We determined that approximately 17,746 ac (7,182 ha) of habitat 
that was known to be occupied at the time of listing and is known to be 
currently occupied and contains features essential to the conservation 
of Astragalus lentiginosus var. coachellae exist in Riverside County, 
California (Table 1). All 17,746 ac (7,182 ha) are within areas that 
are conserved or will soon be conserved under HCPs, including 3,655 ac 
(1,479 ha) that is already conserved within the Coachella Valley 
Preserve System under the approved Coachella Valley Fringe-Toed Lizard 
HCP and 14,091 ac (5,703 ha) that will very likely be conserved under 
the Coachella Valley MSHCP/NCCP. On the basis of our evaluation of the 
conservation measures afforded to A. l. var. coachellae under the 
Coachella Valley Fringe-Toed Lizard HCP, we have concluded that the 
Federal lands within the Coachella Valley Preserve System that contain 
features essential to conservation of this taxon do not meet the 
definition of critical habitat under section 3(5)(A) of the Act because 
they may not require special management considerations. In addition, on 
the basis of our evaluation of the conservation measures that will very 
likely be afforded to A. l. var. coachellae under the draft Coachella 
Valley MSHCP/NCCP, we have concluded that the benefit of excluding the 
lands covered by this MSHCP/NCCP outweighs the benefit of including 
them as critical habitat (see section titled Application of Section 
3(5)(A) and Exclusions Under Section 4(b)(2) of the Act for a more 
detailed discussion), and therefore are excluding these lands from 
critical habitat designation pursuant to section 4(b)(2) of the Act. As 
a result, we are not designating any areas containing features 
essential to the conservation of A. l. var. coachellae as critical 
habitat in this final rule.

Effects of Critical Habitat Designation

    Section 7 Consultation
    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. Such 
alterations include, but are not limited to: ``Alterations adversely 
modifying any of those physical or biological features that were the 
basis for determining the habitat to be critical.'' We are currently 
reviewing the regulatory definition of adverse modification in relation 
to the conservation of the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. Conference reports may include reasonable 
and prudent alternatives or reasonable and prudent measures 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)). Until such 
time as a proposed designation is finalized, any reasonable and prudent 
alternatives or reasonable and prudent measures included in a 
conference report are advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
action agency ensures that 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

[[Page 74128]]

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 are likely to adversely modify or destroy proposed 
critical habitat.
    Federal activities that may affect the Astragalus lentiginosus var. 
coachellae 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 under 
section 404 of the Clean Water Act, a section 10(a)(1)(B) permit from 
the Service, or some other Federal action, including funding (e.g., 
Federal Highway Administration or Federal Emergency Management Agency 
funding), will also continue to be subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat and 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 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. coachellae. Federal activities that, when carried out, may 
adversely affect critical habitat for the A. l. var. coachellae 
include, but are not limited to:
    (1) Activities that inhibit downstream sediment transport and the 
replenishment of sands to areas of occupied habitat, and thus degrading 
the PCEs, such as active sand dunes or fields, in areas containing 
features essential for the conservation of Astragalus lentiginosus var. 
coachellae. An example of such activity includes sand and gravel mining 
within stream channels;
    (2) Activities that block downwind transport of eolian sands to 
areas of suitable habitat, and thus degrading the PCEs, such as active 
sand dunes or fields, in areas containing features essential for the 
conservation of Astragalus lentiginosus var. coachellae. Examples of 
such activities include any type of development or the planting of 
tamarisk rows that obstruct near surface winds carrying eolian sands;
    (3) Activities that foster invasion of exotic weeds in areas 
containing features essential to the conservation of Astragalus 
lentiginosus var. coachellae (e.g., roads, landscaping, soil 
disturbance) that may outcompete A. l. var. coachellae for valuable 
resources and may stabilize sands in upwind areas and prevent them from 
being transported to areas containing features essential for the 
conservation of A. l. var. coachellae.
    Both designated critical habitat Units are known to be occupied by 
Astragalus lentiginosus var. coachellae. Federal agencies already 
consult with us on activities in areas currently occupied by the taxon 
or if the taxon may be affected by the action to ensure that their 
actions do not jeopardize the continued existence of the A. l. var. 
coachellae.
    On December 24, 2002, we issued a Biological Opinion on the BLM's 
California Desert Conservation Area Plan Amendment (CDCAPA) for the 
Coachella Valley . At issue was the proposed amendment to the 1980 BLM 
California Desert Conservation Area Plan (CDCA Plan).
    Congress designated the CDCA with Section 601 of the Federal Land 
Policy and Management Act (FLPMA) of 1976. To provide for management of 
recreational use, as well as to resolve other resource and public land 
use conflicts, FLPMA also directed the Secretary of the Interior to 
``prepare and implement a comprehensive, long-range plan for 
management, use, development, and protection of the public lands within 
the CDCA.'' The CDCA Plan was signed in January 1980, and this document 
now serves as the primary document that describes the basic management 
principles that the BLM uses for managing their portion of the CDCA. 
The CDCA Plan has undergone numerous minor amendments over the past 25 
years, including major amendments to divide it into five eco-regions/
planning areas. The Coachella Valley is one of five bioregional 
planning areas under the CDCA Plan. Amendments to this plan for each 
bioregion address unique biological resource issues that are applicable 
to a given area, and prescribe management actions that address local 
land use needs. To more effectively and consistently manage their 
portion of the public lands within the CDCA, the BLM developed a land 
zoning system that provided specific land management prescriptions. 
Under this zoning strategy, different areas are assigned to one of four 
multiple-use classes (MUC). The MUC assignment is based on the 
considered sensitivity of resources and kinds of uses occurring in each 
geographic area.
    Under their CDCAPA for the Coachella Valley, the BLM proposes seven 
interim measures to protect federally listed species, including 
Astragalus lentiginosus var. coachellae. These interim measures were 
developed to conserve species during development of the Coachella 
Valley MSHCP/NCCP. These interim measures that are relevant to A. l. 
var. coachellae include: (1) The BLM will only consider land exchanges 
or disposals involving threatened or endangered species habitat if they 
benefit the species; and (2) the BLM will not allow any new activities 
that may adversely affect A. l. var. coachellae on BLM lands within the 
conservation areas of the draft Coachella Valley MSHCP/NCCP. In 
addition, the BLM will manage for maintenance of hydrologic regime and 
sand sources for all known populations and habitat of A. l. var. 
coachellae on BLM lands.
    Overall, the CDCAPA for the Coachella Valley bioregion provided 
general guidance that can either benefit or adversely affect the 
conservation of federally listed species, including Astragalus 
lentiginosus var. coachellae, depending on location and project type 
relative to their Multiple-Use Class activity guidelines. However, 
future activities and projects will still need to receive site-specific 
environmental review and section 7 consultation.

Application of Section 3(5)(A) 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

[[Page 74129]]

for the conservation of the species are not, by definition, critical 
habitat. Similarly, areas within the geographic area occupied by the 
species that do not require special management also are not, by 
definition, critical habitat. To determine whether an area requires 
special management, we first determine if the essential features 
located there 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 provisions 
outlined in sections 3(5)(A) and 4(b)(2) of the Act to evaluate those 
specific areas that we proposed for designation as critical habitat. 
Lands we have found that do not meet the definition of critical habitat 
under section 3(5)(A), and lands excluded pursuant to section 4(b)(2) 
include those covered by the following types of plans if they provide 
assurances that the conservation measures they outline will be 
implemented and effective: (1) Legally operative HCPs that cover the 
species, (2) draft HCPs that cover the species and have undergone 
public review and comment (i.e., pending HCPs), (3) Tribal conservation 
plans that cover the species, (4) State conservation plans that cover 
the species, and (5) National Wildlife Refuge System Comprehensive 
Conservation Plans. Table 1 contains a summary of areas containing 
features essential to the conservation of Astragalus lentiginosus var. 
coachellae that do not meet the definition of critical habitat as well 
as areas containing essential features that are being excluded from 
critical habitat in this rule.

Relationship of Critical Habitat to Federal Lands Within the Coachella 
Valley Fringe-Toed Lizard HCP--Application of Section 3(5)(A) of the 
Act

    We are not including areas containing features essential to the 
conservation of Astragalus lentiginosus var. coachellae in portions of 
all three units that are contained within Federal lands (BLM and 
Service Refuge lands) within the boundaries of the Coachella Valley 
Preserve System in the Coachella Valley fringe-toed lizard HCP under 
section 3(5)(A) of the Act. On April 21, 1986, the Service approved and 
issued a Section 10(a)(1)(B) incidental take permit under the Act for 
the Coachella Valley fringe-toed lizard under the Coachella Valley 
Fringe-Toed Lizard HCP and IA. The HCP called for the establishment of 
three separate preserves for the conservation of the Coachella Valley 
fringe-toed lizard: (1) The Coachella Valley Preserve; (2) the Willow 
Hole-Edom Hill Preserve; and (3) the Indian Avenue Preserve within the 
Whitewater River floodplain, which are collectively known as the 
Coachella Valley Preserve System. Acquisition and maintenance of the 
Coachella Valley Preserve System was the basis for the issuance of the 
Service's section 10(a) permit to allow the incidental take of the 
Coachella Valley fringe-toed lizard on private lands. The Coachella 
Valley Preserve System is managed cooperatively by the major landowners 
within each Preserve, including the BLM, the Service, the CDFG, and The 
Nature Conservancy. These major landowners signed an IA in 1986 that 
defined their roles and responsibilities in the management of the 
Coachella Valley Preserve System, which was later amended in 1991 to 
include the CDPR as a major landowner. Another amendment on August 3, 
1999 transferred management responsibilities by the TNC to the Center 
for Natural Lands Management (CNLM). The Coachella Valley Preserve 
System was designed to capture habitats closely associated with the 
Coachella Valley fringe-toed lizard, including primarily loose, 
unstabilized, windblown sand. These habitats encompass several of the 
PCEs important for the conservation of Astragalus lentiginosus var. 
coachellae, including active sand dunes, stabilized or partially 
stabilized sand dunes, active or stabilized sand fields, and shielded 
sand fields that are contained within the Thousand Palms sand transport 
system.
    Even though Astragalus lentiginosus var. coachellae is not a 
covered species under the Coachella Valley Fringe-Toed Lizard HCP, it 
receives conservation benefits from the management of the Coachella 
Valley Preserve System due to the protections afforded to the habitats 
associated with the Coachella Valley fringe-toed lizard that are also 
associated with Astragalus lentiginosus var. coachellae. In May 1995, 
the BLM prepared the Coachella Valley Preserve System Management Plan 
and Decision Record (CVPS Management Plan) that provided guidance for 
managing the Coachella Valley Preserve System. The proposed CVPS 
Management Plan was available for public review in October 1994. The 
CVPS Management Plan discussed management actions that were designed to 
conserve other sand-dependent sensitive species, including Astragalus 
lentiginosus var. coachellae (which was a Federal candidate species at 
the time). These management actions included, acquisition of suitable 
habitat for the Coachella Valley fringe-toed lizard, law enforcement, 
install and maintain boundary fencing and signs, research effective 
methods for removing exotic invasive weeds, such as Russian thistle 
(Salsola tragus) and mustard (Brassica tournefortii), and research 
techniques for enhancing sand deposition into the preserves.
    In order for the Secretary to determine that an area is adequately 
managed and does not require special management, the Secretary must 
evaluate existing management and find that it provides (1) a 
conservation benefit to the species; (2) reasonable assurances for 
implementation; and (3) reasonable assurances that conservation efforts 
will be effective. The Secretary has reviewed the management plan and 
actions for the Coachella Valley Preserve System and has determined 
that the Preserve System is adequately managed for Astragalus 
lentiginosus var. coachellae, and therefore does not need special 
management. Therefore, all areas within BLM and Service Refuge lands

[[Page 74130]]

containing features essential for the conservation of A. l. var. 
coachellae within the boundaries of the Coachella Valley Preserve 
System are not included in this final critical habitat designation 
pursuant to section 3(5)(A) of the Act. Finally, rather than not 
including the other non-Federal landowners within the Coachella Valley 
Preserve System in critical habitat, these lands are excluded from 
critical habitat pursuant to section 4(b)(2) of the Act because of 
their intent to be signatories to the draft Coachella Valley MSHCP/
NCCP.

Relationship of Critical Habitat to Pending Habitat Conservation 
Plans--Exclusions Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act requires us to consider other relevant 
impacts, in addition to economic impacts, when designating critical 
habitat. Section 10(a)(1)(B) of the Act authorizes us to issue permits 
for the take of listed wildlife species incidental to otherwise lawful 
activities. Development of an HCP is a prerequisite for the issuance of 
an incidental take permit pursuant to section 10(a)(1)(B) of the Act. 
An incidental take permit application must be supported by an HCP that 
identifies conservation measures that the Permittee agrees to implement 
for the species to minimize and mitigate the impacts of the permitted 
incidental take. Although take of plant species is not prohibited under 
the Act, and therefore cannot be authorized under an incidental take 
permit, plant species are included on the permit in recognition of the 
conservation benefits provided to them under the HCP and for the 
purposes of the No Surprises assurances.
    HCPs vary in size and may provide for incidental take coverage and 
conservation management for one or many federally listed species. 
Additionally, more than one applicant may participate in the 
development and implementation of an HCP. Large regional HCPs expand 
upon the basic requirements set forth in section 10(a)(1)(B) of the Act 
because they reflect a voluntary, cooperative approach to large-scale 
habitat and species conservation planning. Many of the large regional 
HCPs in southern California have been, or are being, developed to 
provide for the conservation of numerous federally listed species and 
unlisted sensitive species and the habitat that provides for their 
biological needs. These HCPs are designed to proactively implement 
conservation actions to address future projects that are anticipated to 
occur within the planning area of the HCP. However, given the broad 
scope of these regional HCPs, not all projects envisioned to 
potentially occur may actually take place.
    In developing critical habitat designations, the Service has 
analyzed habitat conservation planning efforts to determine if the 
benefits of excluding them from critical habitat outweigh the benefits 
of including them in designated critical habitat. In reviewing HCPs, 
the Service has assessed the potential impacts of critical habitat 
designation on lands covered by HCPs on future partnerships, the status 
of HCP efforts and progress made in developing and implementing such 
plans, and their relationship to the conservation of species. In 
certain circumstances, the Service has determined that an HCP not yet 
completed may be considered for exclusion from critical habitat 
designation pursuant to section 4(b)(2) of the Act.

Pending Coachella Valley Multiple Species Habitat Conservation Plan and 
Natural Community Conservation Plan (MSHCP/NCCP)

    We re-affirmed our December 14, 2004, proposed rule exclusion of 
non-Federal lands containing features essential for the conservation of 
Astragalus lentiginosus var. coachellae within the draft Coachella 
Valley MSHCP/NCCP's plan area under section 4(b)(2) of the Act (69 FR 
74468). In addition, we have determined that BLM lands within the draft 
Coachella Valley MSHCP/NCCP that are outside of the Coachella Valley 
Preserve System warrant exclusion from the critical habitat designation 
due to their official participation in the draft Coachella Valley 
MSHCP/NCCP planning process and commitment under their CDCAPA to manage 
their lands consistent with the Coachella Valley MSHCP/NNCP once it is 
completed.
    The draft Coachella Valley MSHCP/NCCP has been in development from 
the mid-1990s to present. Since 1997, the planning process has 
proceeded under the auspices of a Memorandum of Understanding governing 
the preparation of the MSHCP/NCCP entered into by the following 
entities: CVAG; the cities of Cathedral City, Coachella, Desert Hot 
Springs, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs, and 
Rancho Mirage; County of Riverside; the Service; California Department 
of Fish and Game (CDFG); BLM; U.S. Forest Service; and the National 
Park Service. Later, the Caltrans, CVWD, Imperial Irrigation District, 
Riverside County Flood Control and Water Conservation District, 
Riverside County Regional Parks and Open Space District, Riverside 
County Waste Management District, California Department of Parks and 
Recreation (CDPR), and Coachella Valley Mountains Conservancy also 
joined in preparation of the Plan. The parties later amended the 
Planning Agreement to also address the requirements of the NCCP Act and 
prepare a NCCP pursuant to California Fish and Game Code Section 2810. 
As stated in their CDCAPA for the Coachella Valley, BLM has committed 
95% of their public land base within the conservation areas of the 
MSHCP/NCCP to be managed consistent with the MSHCP/NCCP. The MSHCP/NCCP 
area proposes to encompass approximately 1,131,000 ac (457,700 ha) in 
Riverside County. The MSHCP/NCCP is proposing to provide 747,000 ac 
(302,300 ha) of conservation areas that will provide conservation 
benefits for 52 federally listed and sensitive species, including A. l. 
var. coachellae, over the life of the permit (75 years). The 
Permittees' funding program proposes funding from a variety of 
potential sources, including, but not limited to: (1) Local development 
mitigation fees; (2) fees on the importation of waste into landfills 
and transfer stations in Riverside County; (3) transportation project 
mitigation; (4) regional infrastructure project mitigation; and (5) 
Eagle Mountain Landfill Environmental Mitigation Trust Fund. CVAG has 
demonstrated a sustained commitment to develop the MSHCP/NCCP to comply 
with section 10(a)(1)(B) of the Act, the California Endangered Species 
Act, and the State's NCCP program. On November 5, 2004, the Service 
published a Notice of Availability of a Final Environmental Impact 
Statement/Environmental Impact Report (EIS/EIR) for the MSHCP/NCCP.
    All areas containing features essential for the conservation of 
Astragalus lentiginosus var. coachellae are contained within the 
proposed preferred alternative reserve design of the draft Coachella 
Valley MSHCP/NCCP. CVAG estimates there are 36,398 ac (14,730 ha) of 
modeled habitat for A. l. var. coachellae habitat within the draft 
Coachella Valley MSHCP/NCCP plan area. The draft MSHCP/NCCP proposes to 
conserve 19,321 ac (7,819 ha) of modeled A. l. var. coachellae habitat 
in their Conservation Areas that includes large core habitat areas and 
other important conservation areas, such as sand sources and sand 
transport corridors. Core habitat areas include: Snow Creek/Windy Point 
Conservation Area; Whitewater Floodplain Conservation Area; Willow Hole

[[Page 74131]]

Conservation Area; and Thousand Palms Conservation Area. Other goals 
include: (1) Protecting other important conservation areas to allow for 
population fluctuation and promote genetic diversity; (2) protecting 
necessary ecological processes, including the sand transport systems, 
that will be beneficial in maintaining the PCEs in the areas containing 
features essential for the conservation of A. l. var. coachellae; (3) 
maintaining biological corridors and linkages among all conserved 
populations to the maximum extent feasible; and (4) ensuring 
conservation of habitat quality through biological monitoring and 
adaptive management actions.
    CVAG carefully considered all available and occupied habitats for 
Astragalus lentiginosus var. coachellae in developing their 
conservation strategy for this species. CVAG concluded that the 
habitats within the proposed Conservation Areas would provide long-term 
protection for self-sustaining populations of this taxon because of the 
following factors: (1) Conserved habitat areas are large enough to 
increase the likelihood for maintaining self-sustaining populations of 
A. l. var. coachellae and incorporate key habitat elements for the 
species; (2) potential adverse effects within Conservation Areas would 
not eliminate or significantly impact any core populations; (3) 
potential development would not adversely impact the necessary 
ecological processes (such as sand source and transport system) needed 
to maintain currently viable habitat, and (4) lands in the MSHCP/NCCP 
reserve system would be managed and monitored (CVMC 2004). The Service 
evaluated the Conservation Areas for A. l. var. coachellae, and based 
on our analysis and the best scientific data available, recognized that 
the Conservation Areas also contained the physical and biological 
features essential to the conservation of the species.
    In light of the Service's confidence that CVAG will reach a 
successful conclusion to its MSHCP/NCCP development process and 
successfully conserve habitat for Astragalus lentiginosus var. 
coachellae, we have identified and excluded under section 4(b)(2) of 
the Act all lands (14,091 ac (5,703 ha)) containing features essential 
for the conservation of A. l. var. coachellae within the Coachella 
Valley MSHCP/NCCP plan area, including non-Federal lands covered by the 
MSHCP/NCCP and Federal lands managed consistent with the MSHCP/NCCP. We 
believe that CVAG has made significant progress in the development of 
its MSHCP/NCCP to meet the requirements outlined in section 10(a)(1)(B) 
of the Act.
(1) Benefits of Inclusion
    Overall, we believe that there is minimal benefit from designating 
critical habitat for Astragalus lentiginosus var. coachellae within the 
draft Coachella Valley MSHCP/NCCP because, as explained above, these 
lands are being proposed to be managed for the conservation of this 
taxon.
    A benefit of including an area within a critical habitat 
designation is the protection provided by section 7(a)(2) of the Act 
that directs Federal agencies to ensure that their actions do not 
result in the destruction or adverse modification of critical habitat. 
The designation of critical habitat may provide a different level of 
protection under section 7(a)(2) of the Act for Astragalus lentiginosus 
var. coachellae that is separate from the obligation of a Federal 
agency to ensure that their actions are not likely to jeopardize the 
continued existence of the endangered species. Under the Gifford 
Pinchot decision, critical habitat designations may provide greater 
benefits to the recovery of a species than was previously believed, but 
it is not possible to quantify this benefit at present. However, the 
protection provided is still a limitation on the harm that occurs as 
opposed to a requirement to provide a conservation benefit. We are in 
the final stages of completing a section 7 consultation on the issuance 
of the section 10(a)(1)(B) permit for the Coachella Valley MSHCP/NCCP 
for which A. l. var. coachellae is a covered species. The section 
10(a)(1)(B) permit includes plants in recognition of the conservation 
value of the HCP and to provide ``No Surprises'' to Permittees, even 
though the take prohibition does not apply to plants.
    If designated, primary constituent elements in this area would be 
protected from destruction or adverse modification by Federal actions 
using a conservation standard based on the Ninth Circuit Court's 
decision in Gifford Pinchot. This requirement would be in addition to 
the requirement that proposed Federal actions avoid likely jeopardy to 
the species' continued existence. However, since all areas containing 
features essential for the conservation of the Astragalus lentiginosus 
var. coachellae are occupied, consultation for activities which may 
adversely affect the species would be required, even without the 
critical habitat designation.
    Another potential benefit of designation would be to signal the 
importance of these lands to the conservation of Astragalus 
lentiginosus var. coachellae to Federal agencies and to the public. In 
Sierra Club v. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001), 
the Fifth Circuit Court of Appeals stated that the identification of 
habitat containing the features essential to the conservation of the 
species can provide informational benefits to the public, State and 
local governments, scientific organizations, and Federal agencies. The 
court also noted that heightened public awareness of the plight of 
listed species and their habitats may facilitate conservation efforts. 
The inclusion of an area as critical habitat may focus and contribute 
to conservation efforts by other parties by clearly delineating areas 
of high conservation values for certain species. However, we believe 
that this educational benefit has largely been achieved for A. l. var. 
coachellae. The public outreach and environmental impact reviews 
required under the National Environmental Policy Act for the draft 
Coachella Valley MSHCP/NCCP provided significant opportunities for 
public education regarding the conservation of the areas occupied by A. 
l. var. coachellae. There would be little additional informational 
benefit gained from including these lands as critical habitat because 
of the level of information that has been, and continues to be, made 
available to the public as part of the regional planning effort. 
Additionally, we believe the value of the Conservation Areas to provide 
protection and enhancement of habitat for Astragalus lentiginosus var. 
coachellae within the draft Coachella Valley MSHCP/NCCP is well 
established among State and local governments, and Federal agencies 
even without the designation of critical habitat.
    The inclusion of the identified 14,091 ac (5,703 ha) of land as 
critical habitat would provide some additional Federal regulatory 
benefits for the species consistent with the conservation standard 
based on the Ninth Circuit Court's decision in Gifford Pinchot. A 
benefit of inclusion would be the requirement of a Federal agency to 
ensure that their actions on these non-Federal lands do not likely 
result in jeopardizing the continued existence of the species or result 
in the destruction or adverse modification of critical habitat. This 
additional analysis to determine destruction or adverse modification of 
critical habitat is likely to be small because the lands are not under 
Federal ownership and any Federal agency proposing a Federal action on 
the 11,877 ac (4,807 ha) of non-Federal lands would likely consider

[[Page 74132]]

the conservation value of these lands as identified in the draft 
Coachella Valley MSHCP/NCCP and take the necessary steps to avoid 
jeopardy or the destruction or adverse modification of critical 
habitat.
    As discussed below, however, we believe that designating any lands 
within the Coachella Valley MSHCP/NCCP as critical habitat would 
provide little additional educational and Federal regulatory benefits 
for the species. Because the excluded areas are occupied by the 
species, there must be consultation with the Service over any action 
which may result in adverse effects to these populations on Federal 
lands or on lands with a Federal nexus. The additional educational 
benefits that might arise from critical habitat designation have been 
largely accomplished through the public review and comment of the 
environmental impact documents which accompanied the development of the 
Coachella Valley MSHCP/NCCP.
    For 30 years prior to the Ninth Circuit Court's decision in Gifford 
Pinchot, the Fish and Wildlife Service equated the jeopardy standard 
with the standard for destruction or adverse modification of critical 
habitat. However, in Gifford Pinchot the court noted the government, by 
simply considering the action's survival consequences, was reading the 
concept of recovery out of the regulation. The court, relying on the 
CFR definition of adverse modification, required the Service to 
determine whether recovery was adversely affected. The Gifford Pinchot 
decision arguably made it easier to reach an ``adverse modification'' 
finding by reducing the harm, affecting recovery, rather than the 
survival of the species. However, there is an important distinction: 
Section 7(a)(2) limits adverse effects to the species and its 
designated critical habitat through either a jeopardy or destruction or 
adverse modification analyses. It does not require positive 
improvements or enhancement of the species status. Thus, any management 
plan which considers enhancement or recovery as the management standard 
will almost always provide more benefit than the critical habitat 
designation. This is particularly true for management plans that 
include plants on non-Federal lands because plants do not receive 
protection stemming from the take prohibitions under the Act on non-
Federal lands.
(2) Benefits of Exclusion
    As mentioned above, the draft Coachella Valley MSHCP/NCCP proposes 
to provide for the conservation of the PCEs for Astragalus lentiginosus 
var. coachellae by: (1) Protecting important ecological processes that 
maintain the PCEs for A. l. var. coachellae; (2) maintaining biological 
corridors and linkages among all conserved populations to the maximum 
extent feasible; and (3) ensure conservation of habitat quality through 
biological monitoring and adaptive management actions, such as 
controlling exotic invasive weeds that may degrade the PCEs. The draft 
Coachella Valley MSHCP/NCCP therefore proposes to provide for the 
protection of PCEs, and address special management needs. Designation 
of critical habitat would therefore not provide as great a benefit to 
the species as the positive management measures in the plan.
    The benefit of excluding lands within nearly completed HCPs from 
critical habitat designation includes relieving landowners, 
communities, and counties of any additional regulatory burden that 
might be imposed by a critical habitat designation consistent with the 
conservation standard based on the Ninth Circuit Court's decision in 
Gifford Pinchot. Many HCPs, particularly large regional HCPs take many 
years to develop and, upon completion, become regional conservation 
plans that are consistent with the recovery objectives for listed 
species that are covered within the plan area. Additionally, many of 
these HCPs provide conservation benefits to unlisted, sensitive species 
and federally listed plants that do not receive protections on non-
Federal lands not subject to a Federal nexus. Imposing an additional 
regulatory review after an HCP is nearly completed solely as a result 
of the designation of critical habitat may undermine conservation 
efforts and partnerships in many areas. In fact, it could result in the 
loss of species' benefits if participants abandon the voluntary HCP 
process because the critical habitat designation may result in 
additional regulatory requirements than faced by other parties who have 
not voluntarily participated in species conservation. Designation of 
critical habitat within the boundaries of nearly approved HCPs could be 
viewed as a disincentive to those entities currently developing HCPs or 
contemplating them in the future. Another benefit from excluding these 
lands is to maintain the partnerships developed among several partners 
in the Coachella Valley including CVAG; the cities of Cathedral City, 
Coachella, Desert Hot Springs, Indian Wells, Indio, La Quinta, Palm 
Desert, Palm Springs, and Rancho Mirage; County of Riverside; CVWD, 
Imperial Irrigation District, Riverside County Flood Control and Water 
Conservation District, Riverside County Regional Parks and Open Space 
District, Riverside County Waste Management District, CDPR; Coachella 
Valley Mountains Conservancy; CDFG; Caltrans; BLM; U.S. Forest Service; 
the National Park Service; and us to complete and implement the 
Coachella Valley MSHCP/NCCP. Instead of using limited funds to comply 
with administrative consultation and designation requirements which 
cannot provide protection beyond what is currently in place, the 
partners could instead use their limited funds for the conservation of 
this species.
    A related benefit of excluding lands within HCPs from critical 
habitat designation is the unhindered, continued ability to seek new 
partnerships with future HCP participants including States, Counties, 
local jurisdictions, conservation organizations, and private 
landowners, which together can implement conservation actions that we 
would be unable to accomplish otherwise. If lands within nearly 
completed HCP plan areas are designated as critical habitat, it would 
likely have a negative effect on our ability to establish new 
partnerships to develop HCPs, particularly large, regional HCPs that 
involve numerous participants and address landscape-level conservation 
of species and habitats. By excluding these lands, we preserve our 
current partnerships and encourage additional conservation actions in 
the future. This is especially important for federally listed plants 
that do not receive take prohibitions under the Act on non-Federal 
lands. By including measures to conserve plants and habitat in an HCP, 
non-Federal participants are voluntarily agreeing to conserve plants 
that would not otherwise receive protections with a critical habitat 
designation. Further, imposing additional regulatory burdens on HCP 
participants with regard to a listed plant could discourage them from 
including plants as covered species and providing conservation benefits 
for them.
    Furthermore, an HCP or NCCP/HCP application must itself be 
consulted upon. While this consultation will not look specifically at 
the issue of adverse modification to critical habitat, unless critical 
habitat has already been designated within the proposed plan area, it 
will determine if the HCP jeopardizes the species in the plan area. In 
addition, Federal actions not covered by the HCP in area that may 
affect occupied by listed species would still require consultation 
under section 7 of

[[Page 74133]]

the Act. HCP and NCCP/HCPs typically provide for greater conservation 
benefits to a covered species than section 7 consultations because HCPs 
and NCCP/ HCPs assure the long-term protection and management of a 
covered species and its habitat, and funding for such management 
through the standards found in the 5 Point Policy for HCPs (64 FR 
35242) and the HCP ``No Surprises'' regulation (63 FR 8859). Such 
assurances are typically not provided by section 7 consultations that, 
in contrast to HCPs, often do not commit the project proponent to long-
term special management considerations or protections. Thus, a 
consultation typically does not accord the lands it covers the 
extensive benefits a HCP or NCCP/HCP provides. The development and 
implementation of HCPs or NCCP/HCPs provide other important 
conservation benefits, including the development of biological 
information to guide the conservation efforts and assist in species 
conservation, and the creation of innovative solutions to conserve 
species while allowing for development.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We have reviewed and evaluated the exclusion of 14,091 ac (5,703 
ha) of lands within the nearly completed Coachella Valley MSHCP/NCCP 
plan area from critical habitat designation for Astragalus lentiginosus 
var. coachellae; and based on this evaluation, we find that the 
benefits of exclusion, which include potentially avoiding increased 
regulatory costs that could result from including those lands in this 
designation of critical habitat, ensuring the willingness of existing 
partners to continue active conservation measures, maintaining the 
ability of attracting new partners, and directing limited funding to 
conservation actions with partners, of the lands containing features 
essential to the conservation of A. l. var. coachellae within the draft 
Coachella Valley MSHCP/NCCP outweigh the benefits of inclusion, which 
include limited educational and regulatory benefits that are largely 
otherwise provided for under the draft MSHCP/NCCP, of these lands as 
critical habitat. The benefits of inclusion of these 14,091 ac (5,703 
ha) of lands as critical habitat are lessened because of the 
significant level of conservation that is proposed to be provided for 
A. l. var. coachellae under the draft Coachella Valley MSHCP/NCCP, 
including the conservation of PCEs, protection of important ecological 
processes that maintain PCEs, maintenance of biological corridors and 
linkages among all conserved populations to the maximum extent 
feasible, and conservation of habitat quality through biological 
monitoring and adaptive management actions that may improve PCEs.
    In contrast, the benefits of excluding 11,877 ac (4,807 ha) of non-
Federal lands covered by their likely signatory status to the draft 
Coachella Valley MSHCP/NCCP and 2,214 ac (896 ha) of BLM lands based on 
their commitment under their CDCAPA for the Coachella Valley to manage 
their lands consistent with the draft Coachella Valley MSHCP/NCCP and 
official participation in the draft Coachella Valley MSHCP/NCCP 
planning process from critical habitat designation are increased 
because of the high level of cooperation by the participants in the 
Coachella Valley MSHCP/NCCP to conserve this taxon. This partnership 
exceeds any conservation value provided by a critical habitat 
designation, particularly for federally listed plants, which do not 
receive protection stemming from take prohibitions on non-Federal lands 
under the Act.
(4) Exclusion Will Not Result in Extinction of the Species
    In the proposed designation of critical habitat for Astragalus 
lentiginosus var. coachellae published on December 14, 2004 (69 FR 
74468), we excluded all non-Federal lands containing essential features 
for the conservation of A. l. var. coachellae from the proposed 
designation under Section 4(b)(2) of the Act because of their 
relationship to the draft Coachella Valley MSHCP/NCCP. In this final 
designation, we continue to believe that the exclusion of non-Federal 
lands as well as BLM lands (14,091 ac (5,703 ha)) in all three Units 
will not result in extinction of A. l. var. coachellae since all areas 
containing essential features for the conservation of A. l. var. 
coachellae are being proposed for conservation and management that will 
benefit this taxon pursuant to the draft Coachella Valley MSHCP/NCCP. 
The draft Coachella Valley MSHCP/NCCP includes specific conservation 
objectives, avoidance and minimization measures, and management for the 
draft Coachella Valley MSHCP/NCCP that exceed any conservation value 
provided as a result of a critical habitat designation.
    The jeopardy standard of section 7 and routine implementation of 
habitat conservation through the section 7 process also provide 
assurances that the species will not go extinct. The exclusion leaves 
this protection unchanged from what would exist if the excluded areas 
were designated as critical habitat.
    Critical habitat is being designated for Astragalus lentiginosus 
var. coachellae in other areas that will be accorded the protection 
from adverse modification by Federal actions using the conservation 
standard based on the Ninth Circuit Court's decision in Gifford 
Pinchot. These factors acting in concert with the other protections 
provided under the Act, lead us to find that exclusion of these 14,091 
ac (5,703 ha) within the draft Coachella Valley MSHCP/NCCP will not 
result in extinction of A. l. var. coachellae.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific 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 potential 
economic effects of the proposed Astragalus lentiginosus var. 
coachellae critical habitat designation (Northwest Economics Associates 
2005). The draft analysis was made available for public review on 
September 27, 2005 (70 FR 56434). We accepted comments on the draft 
analysis until October 27, 2005.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for the Astragalus lentiginosus var. coachellae. 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 co-extensive 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.

[[Page 74134]]

    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.
    There is no economic impact within the final designation because 
the Service has not designated any lands as critical habitat for 
Astragalus lentiginosus var. coachellae.
    A copy of the final economic analysis and supporting documents are 
included in our administrative file and may be obtained by contacting 
the Carlsbad office (see ADDRESSES section).

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but it 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 in 
the section titled Economic Analysis, 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, based on the best 
scientific data available, that the failure to designate such area as 
critical habitat will result in the extinction of the species.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. In our proposed rule, 
we withheld our determination of whether this designation would result 
in a significant effect as defined under SBREFA until we completed our 
draft economic analysis of the proposed designation so that we would 
have the factual basis for our determination.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). 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 considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as 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 this designation of critical habitat for Astragalus 
lentiginosus var. coachellae will affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities (e.g., residential, industrial, 
and commercial development). We considered each industry or category 
individually to determine if certification is appropriate. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement; some 
kinds of activities are unlikely to have any Federal involvement and so 
will not be affected by the designation of critical habitat. 
Designation of critical habitat only affects activities conducted, 
funded, permitted, or authorized by Federal agencies; non-Federal 
activities are not affected by the designation.
    Typically, when proposed critical habitat designations are made 
final, Federal agencies must consult with us if their activities may 
affect designated critical habitat. Consultations to avoid the 
destruction or adverse modification of critical habitat would be 
incorporated into the existing consultation process. Our analysis 
determined that costs involving conservation measures for Astragalus 
lentiginosus var. coachellae would be incurred for activities involving 
residential, commercial, and industrial development (land subdivision 
companies); transportation (Caltrans, CVAG, or Riverside County 
Transportation Commission); Federal land (BLM, U.S. Forest Service, and 
the Service); other public (CDFG and CDPR) or conservation (TNC and 
CNLM) land management; water supply (Mission Springs Water District and 
CVWD); flood control (CVWD and Riverside County Flood Control and Water 
Conservation District agencies); implementation of the draft Coachella 
Valley MSHCP/NCCP; and wind energy projects (private businesses and 
individuals). However, since no critical habitat is being designated, 
no consultations would be necessary.
    In our economic analysis of the proposed designation, we evaluated 
the potential economic effects on small business entities resulting 
from conservation actions related to the listing of this species and 
designation of its critical habitat. Because zero acres of critical 
habitat are being designated, there would be no additional costs to 
small businesses, and, thus, this rule would not result in a 
``significant effect'' for small businesses in Riverside County, 
California. As such, we are certifying that this rule will 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 as well as the fact that this rule is a zero designation of 
critical habitat, 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.

[[Page 74135]]

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
This final rule to designate critical habitat for Astragalus 
lentiginosus var. coachellae is not a significant regulatory action 
under Executive Order 12866, and it 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, Tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. (At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities who receive Federal 
funding, assistance, permits or otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
onto State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because we are designating zero acres of 
critical habitat. Consequently, we do not believe that critical habitat 
designation would significantly or uniquely affect small government 
entities. As such, a Small Government Agency Plan is not required.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for Astragalus lentiginosus var. 
coachellae. Critical habitat designation does not affect landowner 
actions that do not require Federal funding or permits, nor does it 
preclude development of habitat conservation programs or issuance of 
incidental take permits to permit actions that do require Federal 
funding or permits to go forward. Because we are designating zero acres 
of critical habitat for Astragalus lentiginosus var. coachellae, this 
rule does not pose significant takings implications.

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 
critical habitat designation with appropriate State resource agencies 
in California. The designation of zero acres of critical habitat in 
areas currently occupied by Astragalus lentiginosus var. coachellae 
would have no impact on State and local governments and their 
activities. The process of identifying habitat with features essential 
to the conservation of the species may have some benefit to these 
governments in that these areas essential to the conservation of the 
species are more clearly defined, and the primary constituent elements 
of the habitat necessary to the survival 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 meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We have designated zero acres of critical habitat in 
accordance with the provisions of the 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 Astragalus lentiginosus var. 
coachellae.

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 NEPA 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

[[Page 74136]]

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 the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that no 
tribal lands occupied at the time of listing contain the features 
essential for the conservation and no tribal lands that are unoccupied 
are essential for the conservation of the Astragalus lentiginosus var. 
coachellae.

References Cited

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

Author(s)

    The primary authors of this package are the Carlsbad Fish and 
Wildlife Office staff.

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 set forth below:

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), in the List of Endangered and Threatened Plants, 
revise the entry for ``Astragalus lentiginosus var. coachellae'' under 
``FLOWERING PLANTS'' to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species
----------------------------------------------------   Historic range          Family            Status     When listed   Critical  habitat    Special
        Scientific name              Common name                                                                                                rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
        Flowering Plants
 
                                                                      * * * * * * *
Astragalus lentiginosus var.     Coachella Valley    U.S.A. (CA).......  Fabaceae..........  E                      647  17.96(a) (No areas           NA
 coachellae.                      milk-vetch.                                                                             designated)
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
3. In Sec.  17.96, amend paragraph (a) by adding an entry for 
Astragalus lentiginosus var. coachellae in alphabetical order under 
Family Fabaceae to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *

Family Fabaceae: Astragalus lentiginosus var. coachellae (Coachella 
Valley Milk-Vetch)

    Pursuant to section 4(b)(2) of the Act, we have excluded all areas 
determined to meet the definition of critical habitat under section 
3(5)(A) of the Act for Astragalus lentiginosus var. coachellae. 
Therefore, no specific areas are designated as critical habitat for 
this species.
* * * * *

    Dated: November 30, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-23694 Filed 12-13-05; 8:45 am]
BILLING CODE 4310-55-P