[Federal Register Volume 72, Number 16 (Thursday, January 25, 2007)]
[Proposed Rules]
[Pages 3379-3382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-1062]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17


Endangered and Threatened Wildlife and Plants; Anticipated 
Delisting of Astragalus desereticus (Deseret milk-vetch) From the List 
of Endangered and Threatened Plants; Prudency Determination for 
Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Advanced notice of proposed rulemaking; notice of critical 
habitat prudency determination.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce our 
intention to conduct rulemaking under the Endangered Species Act (Act) 
of 1973 as amended (Act) (16 U.S.C. 1531 et seq.) for the purpose of 
removing

[[Page 3380]]

Astragalus desereticus (Deseret milk-vetch) from the List of Endangered 
and Threatened Plants in the near future. Specifically, we intend to 
propose delisting A. desereticus because threats to the species as 
identified in the final listing rule (64 FR 56590, October 20, 1999) 
are not as significant as earlier believed and are managed such that 
the species is not likely to become in danger of extinction throughout 
all or a significant portion of its range in the foreseeable future. 
Upon delisting, A. desereticus would be managed pursuant to a 
Conservation Agreement among the Service and Utah State agencies.
    In response to a stipulated settlement agreement we have 
reconsidered whether designating critical habitat for Astragalus 
desereticus would be prudent based on this species' current status. We 
have determined that such a designation is not prudent because, as 
described in this advanced notice, we believe that designating critical 
habitat would not be beneficial to the species (50 CFR 424.12). This is 
because no area meets the definition of ``critical habitat'' (i.e., 
there are no areas essential to the conservation of the species which 
require special management considerations, and protections afforded by 
the species' current listing status appear to be no longer necessary).

DATES: Comments and information must be submitted before March 26, 
2007.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials by any one of the following methods:
    (1) You may mail or hand-deliver written comments and information 
to Field Supervisor, Utah Ecological Services Office, U.S. Fish and 
Wildlife Service, 2369 West Orton Circle, Suite 50, West Valley City, 
Utah 84119.
    (2) You may electronic mail (e-mail) your comments to 
[email protected]. For directions on how to submit comments by 
e-mail, see the ``Public Comments Solicited'' section of this notice. 
In the event that our Internet connection is not functional, please 
submit your comments by mail, hand delivery, or fax to 801-975-3331.

FOR FURTHER INFORMATION CONTACT: Larry England, U.S. Fish and Wildlife 
Service, 2369 West Orton Circle, Suite 50, West Valley City, Utah 84119 
(telephone 801-975-3330; fax 801-975-3331; e-mail [email protected]).

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited

    This notice announces the opening of a 60-day comment period on our 
advanced notice of proposed rulemaking. We encourage interested parties 
to provide comments on A. desereticus to the Project Leader, Utah 
Ecological Services Office (see ADDRESSES). We will base rulemaking on 
a review of the best scientific and commercial information available, 
including all such information received during the public comment 
period. Information regarding the following topics would be 
particularly useful: (1) Species biology, including but not limited to 
population trends, distribution, abundance, demographics, genetics, and 
taxonomy; (2) habitat conditions, including but not limited to amount, 
distribution, and suitability; (3) conservation measures that have been 
implemented that benefit the species; (4) threat status and trends; and 
(5) other new information or data. Information submitted should be 
supported by documentation such as maps, bibliographic references, 
methods used to gather and analyze the data, and/or copies of any 
pertinent publications, reports, or letters by knowledgeable sources.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment, but you should be aware that the Service may be required to 
disclose your name and address pursuant to the Freedom of Information 
Act. However, we will not consider anonymous comments. We will make all 
submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the address 
indicated in the ADDRESSES section.
    Please submit electronic comments in an ASCII or Microsoft Word 
file and avoid the use of any special characters or any form of 
encryption. Also, please include ``Attn: Astragalus desereticus'' and 
your name and return address in your e-mail message. If you do not 
receive a confirmation from the system that we have received your e-
mail message, please submit your comments in writing using one of the 
alternate methods described above.

Background

    Astragalus desereticus is a perennial, herbaceous, subacaulescent 
(almost stemless) plant (Barneby 1989) in the legume family. It is 
approximately 2-6 inches (in) (5.1-15.2 centimeters (cm)) in height, 
and has pinnately compound leaves (feather-like arrangement with 
leaflets displayed on a central stalk) that are 2-4 inches (in) (5.1-
10.2 cm) long with 11-17 leaflets. The flower petals are whitish except 
for pinkish wings and a lilac keel-tip, and seed pods are 0.4-0.8 in 
(1.0-2.0 cm) long and densely covered with lustrous hairs.
    Astragalus desereticus habitat is narrowly restricted to steep, 
sandy bluffs (Barneby 1989) associated with south and west facing 
slopes (Franklin 1990) within the Moroni Formation at elevations 
between 5,400 and 5,600 feet (1,646 and 1,707 meters (m)) (Franklin 
1990). The current known range of A. desereticus is limited to the 
Birdseye population (Stone 1992) which occupies an area approximately 1 
mile (mi) (1.6 kilometers (km)) long by 0.3 mi (0.5 km) wide, or about 
345 acres (ac) (139.6 hectares (ha)), in the Thistle Creek watershed 
immediately east of Birdseye, Utah. Approximately 230 ac (93 ha) are 
owned by the Utah Division of Wildlife Resources (UDWR) in the Birdseye 
Unit of the Northwest Manti Wildlife Management Area (WMA), 25 ac (10.1 
ha) are owned by the Utah Department of Transportation (UDOT), and 90 
ac (36.4 ha) are on private lands owned by several landowners. The WMA 
extends across the northern and central portions of the population. The 
mineral rights under the WMA and the majority of the mineral rights 
under the private lands are owned by the Utah School and Institutional 
Trust Lands Administration (SITLA).
    Franklin (1990) estimated the population in May 1990 at fewer than 
5,000 plants. Stone (1992) resurveyed the population in late May 1992 
and reported more than 10,000 plants, indicating that a substantial 
seed bank existed in the soil. He reported that the northern portion of 
the population appeared the same as in 1990, but high densities of 
seedlings and young milk-vetch plants occurred locally in the southern 
portion. Observations of Astragalus desereticus on the WMA show that 
the species population increased by 31 percent from 2000-2005 
(Astragalus desereticus monitoring plot data conducted by the Service, 
2000 and 2005, USFWS, Salt Lake City, Utah; hereinafter cited as 
Service 2005).

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Previous Federal Actions

    Astragalus desereticus was listed as a threatened species due to 
small population size, restricted distribution, development, cattle 
grazing (including erosion and trampling), and impacts to pollinator 
habitat (64 FR 56590, October 20, 1999). At the time of listing, we 
determined that designating critical habitat for A. desereticus was not 
prudent due to the lack of benefit to the species. Specifically, we 
discussed application of sections 4 and 7 of the Act and management of 
the species' habitat by UDWR.
    On July 5, 2005, the Center for Native Ecosystems, Forest 
Guardians, and the Utah Native Plant Society filed a complaint in the 
U.S. District Court for the District of Columbia challenging our 
determination that designating critical habitat was ``not prudent'' 
(Center for Native Ecosystems, Forest Guardians, and Utah Native Plant 
Society v. Gale Norton (05-CV-01336-RCL)). In a stipulated settlement 
agreement, we agreed to submit for publication in the Federal Register 
a new critical habitat determination for Astragalus desereticus by 
January 19, 2007.
    This advance notice of proposed rulemaking (ANPR) announces our 
intent to remove Astragalus desereticus from the Federal list of 
Endangered and Threatened Plants, based on a combination of recovery 
and original data error, including: (1) The species' habitat remains 
intact and little changed from the early 1990s when monitoring 
activities were first initiated (UDWR et al. 2006); (2) the population 
has grown considerably since listing; and (3) threats are not as 
significant as we had anticipated at the time of listing, and they are 
adequately managed such that the species is not likely to become in 
danger of extinction throughout all or a significant portion of its 
range in the foreseeable future. This notice also constitutes our new 
prudency determination in fulfillment of the stipulated settlement 
agreement.

Review of Available Information

    Section 4 of the Act and its implementing regulations (50 CFR part 
424.11) set forth procedures for removing species from the Federal List 
of Endangered and Threatened Wildlife and Plants. Regulations at 50 CFR 
424.11(d) state that the factors considered in delisting a species are 
the following, as they relate to the definitions of endangered or 
threatened species: (A) Present or threatened destruction, 
modification, or curtailment of habitat or range; (B) overutilization 
for commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) inadequacy of existing regulatory mechanisms; 
or (E) other natural or manmade factors affecting its continued 
existence. A delisting must be supported by the best scientific and 
commercial data available to the Secretary after conducting a review of 
the status of the species. A species may be delisted only if such data 
substantiate that it is neither endangered nor threatened for one or 
more of the following reasons: (1) Extinction; (2) recovery; and (3) 
original data for classification in error.
    When we listed Astragalus desereticus, we identified several 
threats to the species, all but one habitat related. These threats 
included primary and secondary effects of urban expansion, road 
construction, and cattle grazing (all identified pursuant to factors A 
and E). Factor D, inadequacy of existing regulatory mechanisms, was 
also identified as a threat. Information available at this time 
indicates that some of these threats did not materialize, and others 
are not as significant as we had anticipated. In addition, a recently 
completed Conservation Agreement (cited herein as UDWR et al. 2006) 
among the Service, UDWR, UDOT, and SITLA should adequately address our 
concerns pursuant to factor D. We are not aware of any new threats at 
this time that were not identified when the species was listed.
    Although the species' distribution is still small and restricted, 
there has been little to no habitat disturbance in recent years and 
there are no foreseeable potential threats to the State-owned portion 
of the species' range (UDWR et al. 2006). Occupied habitat continues to 
be intact and little has changed since the early 1990s when Stone 
(1992) concluded that the population was not subject to any 
deterministic threats (i.e., habitat destruction or attempts at 
eradication) (UDWR et al. 2006). One house has been built on private 
property within the species' range, affecting about 2 ac (0.8 ha), or 
less than 1 percent of occupied habitat. Residential development could 
directly affect up to about 10 percent of the species' habitat in the 
future (England 2006); however, this is not considered to be a 
significant threat, given that the majority of the species habitat 
would remain protected on the State WMA for the foreseeable future. We 
are not aware of any specific development plans at this time.
    There are currently no plans for highway widening (West 2006). 
Should highway widening occur in the future, there is adequate right-
of-way space to minimize impacts to Astragalus desereticus individuals. 
In addition, mineral development does not appear to be a significant 
threat because SITLA owns the mineral rights on most of the occupied 
habitat. These mineral rights have not been leased (Durrant 2006), and 
SITLA has agreed to work with lessees to ensure disturbances to 
occupied habitat are avoided or that unavoidable impacts are 
appropriately mitigated (UDWR et al. 2006).
    Prior to state acquisition of the WMA, livestock grazing (primarily 
sheep) had occurred for over 100 years on occupied Astragalus 
desereticus habitat (England 2006). The WMA is now being managed as big 
game winter range and UDWR controls all grazing rights on the property. 
Cattle grazing has been used as a management tool by UDWR, but only on 
a limited basis. A. desereticus occupied habitat is largely unsuitable 
for cattle grazing (Green 2006). There is no evidence that current 
wildlife or livestock browsing levels are negatively impacting A. 
desereticus populations (UDWR et al. 2006).
    A significant portion of the species' range (approximately 67 
percent) is managed by UDWR as part of the Northwest Manti WMA. Plants 
occurring on the WMA constitute the core of the species' population, 
providing the seed source for reproduction and maintenance of the seed 
bank (UDWR et al. 2006). Historic data and recent observations indicate 
that the population has grown substantially since listing (Franklin 
1990; Stone 1992; Service 2005). Plant density on the WMA , as measured 
by Service personnel, increased by 31 percent between 2000 and 2005 
(Service 2005); therefore, the species and its habitat are considered 
stable (UDWR et al. 2006).
    Natural events such as drought and fire may occur in the areas of 
A. desereticus habitat. However, we have no information to indicate 
that natural events have or may cause long-term population reductions. 
Vegetation within the species' range is an open to sparse woodland 
overstory, not prone to fire outbreaks (Franklin 1990, England 2006).
    The Service, UDWR, UDOT, and SITLA signed a Conservation Agreement 
(CA) dated October 10, 2006, that was specifically developed to ensure 
long-term survival and conservation of Astragalus desereticus (UDWR et 
al. 2006). The CA is designed to formalize a program of conservation 
measures that address potential threats and maintain the species' 
specialized habitat. These measures are consistent with actions taken 
by UDWR and they have a proven

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track record of protecting and enhancing the species. Measures include: 
(1) Habitat maintenance (including maintenance of the current pinyon-
juniper woodland vegetation type with its current diverse understory of 
native shrubs, grasses and forbs; restricting habitat disturbing 
actions such as livestock grazing and road and mineral development; 
ensuring that the destruction of individual plants does not occur and 
that appropriate mitigation is provided for any unavoidable effects to 
individual plants or their habitat); (2) retention of A. desereticus 
habitat on the Birdseye Unit of the Northwest Manti WMA in State of 
Utah ownership under the management of the UDWR; and (3) avoidance of 
herbicide use in A. desereticus habitat, including along highway right-
of-ways. The CA also includes an annual monitoring program and provides 
a mechanism to evaluate the feasibility of acquiring private lands to 
benefit A. desereticus.
    Based on our evaluation, we conclude that the CA is sufficient to 
address potential future threats to the species on State of Utah lands, 
providing long-term protection and enhancement measures. In accordance 
with the CA, efforts will be made to work with adjacent private 
landowners to provide species conservation measures and easements. 
However, long-term species conservation can be achieved solely on the 
State of Utah WMA which provides the core of the species population, 
providing the seed source for reproduction, and maintenance of the seed 
bank (UDWR et al. 2006).

Prudency Determination

    As mentioned above, we believe that designating critical habitat 
would not be beneficial to the species (50 CFR 424.12). Specifically, 
we believe that there are no habitat areas containing physical or 
biological features that are essential to the conservation of the 
species and that may require special management consideration or 
protection, and available information at the time of this determination 
indicates that the threats to the species identified at the time of 
listing are no longer significant or have never materialized.
    Astragalus desereticus habitat does not require additional special 
management considerations or protection given proven and effective 
management strategies already implemented by the State of Utah. The 
recently signed CA (UDWR et al. 2006) provides assurances for continued 
management and protection of the species under these proven strategies, 
which should maintain habitat of sufficient quantity and quality to 
ensure viable populations for the foreseeable future. Available 
information indicates that the A. desereticus population has grown 
substantially since listing, and the species and its habitat are 
considered stable (UDWR et al. 2006). Because of the population growth, 
the Conservation Agreement and the fact that threats identified at the 
time of listing are no longer significant or have never materialized, 
available information indicates that habitat destruction is no longer a 
threat to the species.
    Therefore, based on our regulations and the information available 
to us at this time, we find there are no areas that constitute critical 
habitat for A. desereticus because no areas meet the definition of 
critical habitat pursuant to section 3(5)(A) of the Act. Thus, critical 
habitat designation would not be beneficial to the species. Designation 
of critical habitat is, therefore, not prudent.

Effects of This Advance Notice of Proposed Rulemaking

    This Advance Notice of Proposed Rulemaking announces our intent to 
propose rulemaking which may remove protections afforded Astragalus 
desereticus under the Act. This rule, if made final, would revise 50 
CFR 17.12(h) to remove A. desereticus from the List of Endangered and 
Threatened Plants. Because no critical habitat was ever designated for 
this species, this rule would not affect 50 CFR 17.96.
    If we make a final decision to delist Astragalus desereticus, the 
prohibitions and conservation measures provided by the Act would no 
longer apply to this species. Federal agencies would no longer be 
required to consult with us under section 7 of the Act to ensure that 
any action they authorize, fund, or carry out would not likely 
jeopardize the continued existence of A. desereticus or destroy or 
adversely modify designated critical habitat. Until A. desereticus is 
delisted, any Federal actions, or federally funded or permitted 
actions, must comply with the Act. If delisting occurs, we anticipate 
that the CA discussed above would guide A. desereticus management.

Paperwork Reduction Act of 1995

    This rule does not contain any new collections of information that 
require approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.). This rule will not 
impose recordkeeping or reporting requirements on State or local 
governments, individuals, businesses, or organizations. An agency may 
not conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment, as defined by the National Environmental Policy Act of 
1969, in connection with regulations adopted pursuant to section 4(a) 
of the Endangered Species Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244).

References Cited

    A complete list of all references cited herein is available, upon 
request, from the Utah Ecological Services Office, U.S. Fish and 
Wildlife Service (see ADDRESSES section).

Author

    The primary author of this document is Larry England, Botanist, 
Utah Ecological Services Office, U.S. Fish and Wildlife Service (see 
ADDRESSES section).

Authority

    The authority for this action is section 4 of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: January 18, 2007.
Todd Willens,
Acting Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E7-1062 Filed 1-24-07; 8:45 am]
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