[Federal Register Volume 78, Number 30 (Wednesday, February 13, 2013)]
[Rules and Regulations]
[Pages 10450-10497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-03109]



[[Page 10449]]

Vol. 78

Wednesday,

No. 30

February 13, 2013

Part IV





Department of the Interior





-----------------------------------------------------------------------





 Fish and Wildlife Service





-----------------------------------------------------------------------





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. 78 , No. 30 / Wednesday, February 13, 2013 / 
Rules and Regulations  

[[Page 10450]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2011-0064; 4500030114]
RIN 1018-AX40


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.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for Astragalus lentiginosus var. coachellae (Coachella 
Valley milk-vetch) under the Endangered Species Act of 1973, as 
amended. In total, approximately 9,603 acres (3,886 hectares) in the 
Coachella Valley area of Riverside County, California, fall within the 
boundaries of this critical habitat designation.

DATES: This rule becomes effective on March 15, 2013.

ADDRESSES: This final rule and the associated final economic analysis 
are available on the Internet at http://www.regulations.gov. Comments 
and materials received, as well as supporting documentation used in 
preparing this final rule, are available for public inspection, by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley 
Road, Suite 101, Carlsbad, CA 92011; telephone 760-431-9440; facsimile 
760-431-5901.
    The coordinates or plot points or both from which the maps included 
in the regulation are generated are included in the administrative 
record for this critical habitat designation and are available at 
http://www.fws.gov/carlsbad/GIS/CFWOGIS.html, http://www.regulations.gov at Docket No. FWS-R8-ES-2011-0064, and at the 
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT). All additional tools or supporting information developed for 
this critical habitat designation are also available at the Fish and 
Wildlife Service Web site and Field Office set out above, and may also 
be included in the preamble and/or at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S. 
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 
Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone 760-431-
9440; facsimile 760-431-5901. If you use a telecommunications device 
for the deaf (TDD), call the Federal Information Relay Service (FIRS) 
at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. This is a final rule to designate 
critical habitat for Astragalus lentiginosus var. coachellae. Under the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) 
(Act), any species that is determined to be an endangered or threatened 
species requires critical habitat to be designated, to the maximum 
extent prudent and determinable. Designations and revisions of critical 
habitat can only be completed by issuing a rule.
    We listed Astragalus lentiginosus var. coachellae as an endangered 
species on October 6, 1998 (63 FR 53596). On August 25, 2011, we 
published in the Federal Register a proposed critical habitat 
designation for A. l. var. coachellae (76 FR 53224). Section 4(b)(2) of 
the Act states that the Secretary shall designate critical habitat 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.
    The critical habitat areas we are designating in this rule 
constitute our current best assessment of the areas that meet the 
definition of critical habitat for Astragalus lentiginosus var. 
coachellae. Here we are designating approximately 9,603 ac (3,886 ha), 
in 4 units as critical habitat for the taxon.
    We have prepared an economic analysis of the designation of 
critical habitat. In order to consider economic impacts, we have 
prepared an analysis of the economic impacts of the critical habitat 
designation. We announced the availability of the draft economic 
analysis (DEA) in the Federal Register on May 16, 2012 (77 FR 28846), 
allowing the public to provide comments on our analysis. We considered 
all comments and information received from the public during the 
comment period, incorporated the comments as appropriate, and completed 
the final economic analysis (FEA) concurrently with this final 
determination.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our designation is based on scientifically 
sound data and analyses. We invited three knowledgeable individuals 
with scientific expertise to review our technical assumptions, 
analysis, and whether or not we had used the best available 
information. We received responses from two peer reviewers, who 
generally concurred with our methods and conclusions and provided 
additional information, clarifications, and suggestions to improve this 
final rule. Information we received from peer review is incorporated in 
this final revised designation. We also considered all comments and 
information received from the public during the comment period.

Previous Federal Actions

    The following section summarizes the previous Federal actions since 
Astragalus lentiginosus var. coachellae was listed as an endangered 
species on October 6, 1998 (63 FR 53596); please refer to the final 
listing rule for a discussion of Federal actions that occurred prior to 
the taxon's 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 the Secretary of the Interior and the Service 
challenging our not prudent determinations for eight plant taxa, 
including Astragalus lentiginosus var. coachellae (Center for 
Biological Diversity, et al. v. Norton, case number 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, case number 01-
cv-2145 (S.D. Cal.)). On May 9, 2002, all parties agreed to consolidate 
the suits and remand the critical habitat determinations for the eight 
plant taxa at issue to the Service for reconsideration. On July 1, 
2002, the Court directed us to reconsider our not prudent determination 
and if we determined that designation was prudent, submit to the 
Federal Register for publication a proposed critical habitat 
designation for A. l. var. coachellae by November 30, 2004, and to 
submit to the Federal Register for publication a final rule designating 
critical habitat by November 30, 2005. The proposed rule to designate 
critical habitat for A. l. var. coachellae published in the Federal 
Register on December 14, 2004 (69 FR 74468). The final rule designating 
critical habitat for A. l. var. coachellae published in the Federal 
Register on December 14, 2005 (70 FR 74112).
    The Center for Biological Diversity filed a lawsuit on January 14, 
2009,

[[Page 10451]]

claiming the Service failed to designate adequate critical habitat for 
Astragalus lentiginosus var. coachellae (Center for Biological 
Diversity v. Kempthorne, case number ED-cv-09-0091 VAP (AGRx) (C.D. 
Cal.)). In a settlement agreement dated November 14, 2009, we agreed to 
reconsider the critical habitat designation for A. l. var. coachellae. 
The settlement required the Service to submit a proposed revised 
critical habitat designation for A. l. var. coachellae to the Federal 
Register by August 18, 2011, and submit a final revised critical 
habitat designation to the Federal Register by February 14, 2013. The 
proposed revised critical habitat designation was delivered to the 
Federal Register on August 17, 2011, and published on August 25, 2011 
(76 FR 53224). A notice announcing the availability of the draft 
economic analysis for the proposed revised critical habitat designation 
was published in the Federal Register on May 16, 2012 (77 FR 28846). 
This final rule complies with the terms of the settlement agreement.

Background

    It is our intent to discuss in this final rule only those topics 
directly relevant to the revision of critical habitat for Astragalus 
lentiginosus var. coachellae under the Act (16 U.S.C. 1531 et seq.). 
For more information on the taxonomy, biology, and ecology of A. l. 
var. coachellae, please refer to: the final listing rule published in 
the Federal Register on October 6, 1998 (63 FR 53596); the first rule 
proposing designation of critical habitat published in the Federal 
Register on December 14, 2004 (69 FR 74468); the subsequent critical 
habitat final rule published in the Federal Register on December 14, 
2005 (70 FR 74112); and the recent proposed rule to designate critical 
habitat published in the Federal Register on August 25, 2011 (76 FR 
53224). Additionally, more information on the taxon can be found in the 
A. l. var. coachellae 5-year review (Service 2009).
    Except when referencing statutory language, we refer to Astragalus 
lentiginosus var. coachellae as a taxon in this document because it is 
not a species itself, but rather a variety of the species Astragalus 
lentiginosus. Information on the associated draft economic analysis for 
the proposed rule to designate revised critical habitat was published 
in the Federal Register on May 16, 2012 (77 FR 28846).
    To ensure clarity of habitat discussions in the remainder of this 
rule, in the following paragraphs we have included a description of the 
sand transport system that sustains the sand formations that form the 
basis of A. l. var. coachellae habitat in the Coachella Valley.

Sand Transport System

    Most of the sand in the northern Coachella Valley is derived from 
drainages within the Indio Hills, the San Bernardino Mountains, the 
Little San Bernardino Mountains, and the San Jacinto Mountains. This 
sand is moved into and through the valley by the sand transport system. 
The sand transport system consists of two main parts: (1) The fluvial 
(water) portion (headwaters, tributaries, and the stream channels 
within the various drainages surrounding Coachella Valley) and (2) the 
aeolian (wind) portion (predominantly westerly and northwesterly winds 
moving through the valley) (Griffiths et al. 2002, pp. 5-7). The 
fluvial and aeolian portions of the systems are capable of moving sand 
until the velocity of the water or wind decreases to a point that sand 
is deposited.

Fluvial Portion of the Sand Transport System

    The water that forms the basis of the fluvial portion of the sand 
transport system in the Coachella Valley enters the system as 
precipitation during storm events (Griffiths et al. 2002, p. 5). These 
storm events cause flash flooding, which facilitates the erosion that 
generates sediment, and moves that sediment downstream in ephemeral 
streams and washes and eventually into the aeolian transport corridor. 
Most flooding events only transport small amounts of sediment to the 
valley floor; flooding events large enough to move large amounts of 
sediment are very infrequent (for example, the last large flooding 
event on the Whitewater River occurred in 1938) (Griffiths et al. 2002, 
p. 5).
    Fluvial sand transport areas are stream channels that convey 
sediment downstream to fluvial sand depositional areas. In the portions 
of the Coachella Valley containing Units 1, 2, and 3, very little 
erosion of parent rock or sediment deposits takes place in fluvial 
transport areas compared to areas upstream where the sediment is 
generated. In Unit 4, sediment is generated in the same area where 
fluvial sand transport occurs. Fluvial transport channels include 
portions of the lower reaches of San Gorgonio River and Snow Creek 
(Unit 1), Whitewater River (Unit 2), Mission Creek and Morongo Wash 
(Unit 3), and unnamed channels through the alluvial valley floor 
deposits (relatively flat areas (< 10 percent slope)) at the base of 
the Indio Hills (Unit 4). Fluvial sand transport areas do not provide 
habitat for Astragalus lentiginosus var. coachellae and are not 
considered to be within the geographical area occupied by the taxon at 
the time of listing.
    Fluvial sand depositional areas are broad, flat, depositional 
plains or channel terraces where sediment carried by fluvial sand 
transport channels is deposited (Griffiths et al. 2002, p. 5). During 
larger flood events, sediment can be deposited on bajada (large, 
coalescing alluvial fans) surfaces as floodplain deposits. There are 
four main fluvial sand depositional areas in the Coachella Valley: (1) 
In the Snow Creek/Windy Point area, which receives sediment from the 
San Gorgonio River and Snow Creek (Unit 1); (2) in the Whitewater 
Floodplain area, which receives sediment from the Whitewater River 
(Unit 2); (3) in the Willow Hole area, which receives sediment from 
Mission Creek and Morongo Wash (Unit 3); and (4) in the Thousand Palms 
area, which receives sediment from washes that move sediment from the 
alluvial deposits at the base of the Indio Hills (Unit 4). The fluvial 
sand depositional areas associated with Units 1, 2, and 3 do provide 
habitat for Astragalus lentiginosus var. coachellae, are currently 
occupied, and were within the geographical area occupied by the taxon 
at the time of listing. The fluvial sand depositional areas associated 
with Unit 4 are not known to provide habitat for the taxon, and are not 
considered to be within the geographical area occupied by the taxon at 
the time of listing.

Aeolian Portion of the Sand Transport System

    The aeolian portion of the sand transport system begins where the 
fluvial portion of the system ends. Northerly and northwesterly winds 
pick up sand-sized grains of sediment accumulated in fluvial sand 
depositional areas, and carry them south/southeast through the valley 
and into aeolian depositional areas where they form sand fields and 
dunes (Griffiths et al. 2002, p. 7).
    Aeolian sand source areas are the portions of the fluvial 
depositional areas that are subject to wind erosion. Winds erode these 
sediment accumulations and carry sand across aeolian sand transport 
areas. Between flooding events, which replenish the sediment in fluvial 
sand depositional areas, sand available for aeolian transport can be 
depleted by wind erosion. Aeolian sand source areas provide habitat for 
Astragalus lentiginosus var. coachellae, are currently occupied, and 
were within the geographical area occupied by the taxon at the time of 
listing.

[[Page 10452]]

    Sand eroded from the aeolian sand source areas is blown into and 
across the aeolian sand transport areas. Sand may accumulate in aeolian 
transport areas when ample sand is available in upwind source areas; 
conversely, aeolian transport areas may be depleted of sand when sand 
is lacking upwind. Aeolian sand transport areas provide habitat for 
Astragalus lentiginosus var. coachellae, are currently occupied, and 
were within the geographical area occupied by the taxon at the time of 
listing.
    Sand carried by wind through the aeolian sand transport areas is 
deposited when the velocity of the wind decreases sufficiently. This 
occurs mainly where wind is slowed by vegetation (for example, honey 
mesquite in the Willow Hole area), other objects, or geological 
features. In general, sand formations (for example, sand dunes and sand 
fields) persist in aeolian sand depositional areas, whereas sand 
accumulations in transport areas are more ephemeral. Aeolian sand 
depositional areas provide habitat for Astragalus lentiginosus var. 
coachellae, and support the highest numbers of the taxon within the 
geographical area occupied by the taxon currently and at the time of 
listing.
    The fluvial and aeolian processes discussed above have been 
disrupted in many areas by development, alteration of stream flow, and 
the proliferation of nonnative plants. These threats to the persistence 
of Astragalus lentiginosus var. coachellae habitat are discussed 
further in the Special Management Considerations or Protection section 
below.
    The sandy substrates suitable for Astragalus lentiginosus var. 
coachellae are dynamic in terms of spatial mobility and tendency to 
change back and forth from active to stabilized (Lancaster 1995, p. 
231). This has significant consequences for A. l. var. coachellae 
because the plant's population densities differ on different types of 
sandy substrates, and the dynamics of the fluvial and aeolian sand 
transport processes create the variety of substrate types that support 
occurrences of the taxon.
    Dynamics of sandy substrates in the Coachella Valley are controlled 
by two main factors: (1) The supply of sand-sized sediment released, 
transported, and deposited by the fluvial system (water-transported); 
and (2) the rate of aeolian (windblown) transport (Griffiths et al. 
2002, pp. 4-8). The latter is affected primarily by wind fetch (the 
length of unobstructed area exposed to the wind).
    As discussed above, most of the suitable sandy habitats in the 
Coachella Valley are generated from several drainage basins in the San 
Bernardino, Little San Bernardino, and San Jacinto Mountains and the 
Indio Hills (Lancaster et al. 1993, pp. i-ii; Griffiths et al. 2002, p. 
10). Sediment is eroded and washed from hill slopes and channels in the 
local hills and alluvial sand deposits in the Thousand Palms area (Unit 
4), and is transported downstream in stream channels and within 
alluvial fans during infrequent flood events (Lancaster et al. 1993, p. 
28; Griffiths et al. 2002, p. 7). Fluvial sand transport is the 
dominant mechanism that moves sediment into fluvial sand depositional 
areas in the Coachella Valley (Griffiths et al. 2002, p. 7). The 
largest sand depositional area in the Coachella Valley is in the 
Whitewater River floodplain, northwest of the City of Palm Springs 
(Griffiths et al. 2002, p. 5).
    The San Gorgonio Pass is between the two highest peaks in southern 
California: San Gorgonio Mountain (11,510 feet (ft) (3,508 meters (m))) 
to the north and San Jacinto Mountain (10,837 ft (3,303 m)) to the 
south. Westerly winds funneling through San Gorgonio Pass are the 
dominant mechanism by which aeolian sands are transported from bajadas 
and fluvial sand depositional areas to aeolian sand deposits in the 
Coachella Valley (Sharp and Saunders 1978, p. 12; Griffiths et al. 
2002, p. 1). Astragalus lentiginosus var. coachellae is associated with 
various types of sand formations that are formed by these aeolian sand 
deposits (Sanders and Thomas Olsen Associates 1996, p. 3).

Summary of Changes From Proposed Rule

    In the notice announcing the availability of the draft economic 
analysis for public review (77 FR 28846, May 16, 2012), we made a 
correction to the proposed revised critical habitat for Astragalus 
lentiginosus var. coachellae as identified and described in the 
preamble to the proposed rule published in the Federal Register on 
August 25, 2011 (76 FR 53224). The correction was to the description of 
Unit 1 (76 FR 53240). We proposed 316 acres (ac) (128 hectares (ha)) of 
tribal land (Morongo Band of Mission Indians) and 1,791 ac (725 ha) of 
private land as critical habitat in Unit 1. Of this area, we 
characterized 156 ac (63 ha) of tribal land and 1 ac (0.4 ha) of 
private land as being covered under the Western Riverside County 
Multiple Species Habitat Conservation Plan (Western Riverside County 
MSHCP), due to an incorrect interpretation of GIS data. These lands are 
within the boundaries of the Western Riverside County MSHCP, but they 
are inholdings (that is, they are not covered by or subject to the 
provisions of the Western Riverside County MSHCP or any other habitat 
conservation plan). All other acreages reported in the proposed rule 
are correct to the best of our knowledge, and the boundaries of the 
proposed revised critical habitat remain the same as described in the 
proposed rule. No part of the proposed critical habitat for A. l. var. 
coachellae is covered by the Western Riverside County MSHCP.
    Since publication of the proposed revised critical habitat rule for 
Astragalus lentiginosus var. coachellae in the Federal Register on 
August 25, 2011 (76 FR 53224), we have received new GIS parcel data 
describing land ownership in the Coachella Valley. Because we used this 
new data to generate acreages for the final rule, acreages in the final 
rule may not match proposed critical habitat acreages for all land 
ownership categories (see Table 1). The new data also allowed us to 
remove roads from the acreages calculated for this final rule (critical 
habitat does not include manmade structures (such as buildings, 
aqueducts, runways, roads, and other paved areas) and the land on which 
they are located). The acreage of lands designated as critical habitat 
and lands excluded from the critical habitat designation (please see 
the Exclusions section for a discussion of the lands excluded from the 
designation under section 4(b)(2) of the Act) still sum to the total 
acreage of lands proposed as critical habitat, minus the area occupied 
by roads. A total of 255 ac (103 ha) of roads have been removed from 
this designation.

Critical Habitat

Background
    Critical habitat is defined in section 3(5)(A) of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
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

[[Page 10453]]

the use of all methods and procedures that are necessary to bring an 
endangered 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 requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not 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 the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement a reasonable and prudent alternative to avoid destruction 
or adverse modification of critical habitat.
    Under section 3(5)(A)(i) of the Act's definition of critical 
habitat, areas within the geographical area occupied by the species at 
the time it was listed are included in a critical habitat designation 
if they contain physical or biological features (1) which are essential 
to the conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical and biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements are those 
specific elements of the physical or biological features that provide 
for a species' life-history processes and are essential to the 
conservation of the species.
    Under section 3(5)(A)(ii) of the Act's definition of critical 
habitat, we can designate critical habitat in areas outside the 
geographical area occupied by the species at the time it is listed, 
upon a determination that such areas are essential for the conservation 
of the species. For example, an area currently occupied by the species 
but that was not occupied at the time of listing may be essential for 
the conservation of the species and may be included in the critical 
habitat designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species.
    The geographical area occupied by Astragalus lentiginosus var. 
coachellae at the time it was listed (1998) that contains the physical 
or biological features essential to the conservation of the species 
that may require special management considerations or protection 
includes ``the Coachella Valley between [the cities of] Cabazon and 
Indio'' (63 FR 53598). We are designating these areas under section 
3(5)(A)(i) of the Act's definition of critical habitat. At the time of 
listing, the fluvial sand transport areas were not occupied (nor are 
they occupied today); however, we have identified fluvial sand 
transport areas as essential for the conservation of A. l. var. 
coachellae under section 3(5)(A)(ii) of the Act's definition of 
critical habitat, i.e.,''[s]pecific areas outside the geographical area 
occupied by the species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species.''
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions are based on the best scientific data available. 
They require our 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 we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may 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, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) prohibitions described in section 9 of the Act. 
Federally funded or permitted projects affecting listed species outside 
their designated critical habitat areas may still result in jeopardy 
findings in some cases. These protections and conservation tools will 
continue to contribute to recovery of this species. 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 
(HCPs), or other species conservation planning efforts if new 
information available at the time of these planning efforts calls for a 
different outcome.
Physical or Biological Features
    In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act 
and regulations

[[Page 10454]]

at 50 CFR 424.12, in determining which areas within the geographical 
area occupied by the species at the time of listing to designate as 
critical habitat, we consider the physical or biological features 
essential to the conservation of the species and which may require 
special management considerations or protection. These include, but are 
not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features essential to 
Astragalus lentiginosus var. coachellae from studies of this taxon's 
habitat, ecology, and life history as described in the Critical Habitat 
section of the proposed critical habitat rule published in the Federal 
Register on August 25, 2011 (76 FR 53224), and in the information 
presented below. Additional information can be found in the final 
listing rule published in the Federal Register on October 6, 1998 (63 
FR 53596), and the 5-year review for A. l. var. coachellae signed on 
September 1, 2009 (Service 2009). We have determined that A. l. var. 
coachellae requires the following physical or biological features:

Space for Individual and Population Growth and for Normal Behavior

    Astragalus lentiginosus var. coachellae has a limited geographical 
and ecological distribution. Within its limited range, A. l. var. 
coachellae requires space for the essential geomorphological processes 
on which it depends, including natural fluvial (water) and aeolian 
(wind) transport and deposition of sandy substrates (see the Habitat 
section of the proposed critical habitat rule for A. l. var. coachellae 
for more detailed discussion of fluvial and aeolian sand transport in 
Coachella Valley (76 FR 53226)). Protection of aeolian and fluvial 
processes is crucial to maintain habitat for A. l. var. coachellae. 
These processes are responsible for transporting and depositing sand 
that is the foundation of habitat for A. l. var. coachellae. 
Disruption, redirection, or curtailment of these processes can result 
in a lack of adequate amounts of sand to produce the different 
formations that support habitat (for example, active dunes and sand 
fields). Protecting aeolian sand transport corridors between A. l. var. 
coachellae occurrences is also important for the dispersal of the 
species' windblown fruits into temporally unoccupied habitat to 
reestablish reproductive occurrences (metapopulation structure). 
Astragalus lentiginosus var. coachellae can produce fruit and viable 
seed at very low rates without the aid of insect pollinators, but is 
dependent upon insect pollinators to generate the amount of seed 
typically produced by individuals of the taxon (Meinke et al. 2007, p. 
37; also see comment number 7 in the Summary of Comments and 
Recommendations section below). Protecting aeolian sand transport 
corridors also provides space for pollinator movement between 
occurrences, which is important for the long-term maintenance of 
occurrences. Therefore, based on the information above, we identify 
areas supporting aeolian sand transport corridors that provide space 
for seed dispersal and pollinator movement, to be physical or 
biological features essential to the conservation of this taxon.

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

    Astragalus lentiginosus var. coachellae is primarily found on 
various types of sand formations including active sand dunes, 
stabilized or partially stabilized dunes, active sand fields, 
stabilized sand fields, shielded sand dunes and fields, ephemeral sand 
fields, and alluvial sand deposits on floodplain terraces of active 
washes. Each of these sand deposit formations provides habitat for A. 
l. var. coachellae to varying degrees (see Habitat section of the 
proposed critical habitat rule for A. l. var. coachellae for further 
discussion of sand formations that support the taxon (76 FR 53226)). 
The taxon also requires moving water and air to transport sand from 
areas where the sand originates to occupied habitat areas (depositional 
areas) (precipitation occurs mostly during large winter storms and 
intense summer thunderstorms (Griffiths et al. 2002, p. 5)). Astragalus 
lentiginosus var. coachellae can be found in abundance on shielded sand 
fields, and the A. l. var. coachellae plants in these areas are 
important for the conservation of the taxon. However, we do not 
consider shielded habitat to contain the physical or biological 
features essential to the conservation of the taxon because these areas 
are permanently cut off from the sand transport system. Shielded areas, 
although they currently contain sand formations, will eventually lose 
these formations as the winds remove sand over time. Therefore, based 
on the information above, we identify the other above-mentioned sand 
formations (active sand dunes, stabilized or partially stabilized 
dunes, active sand fields, stabilized sand fields, ephemeral sand 
fields, and alluvial sand deposits on floodplain terraces of active 
washes) to be a physical or biological feature essential to the 
conservation of this taxon.
    The specific physiological and soil nutritional needs of Astragalus 
lentiginosus var. coachellae are not known at this time. The taxon 
shows variation in productivity and life-history patterns that appear 
to coincide with local variations in precipitation (wetter years result 
in higher levels of seed germination (for example, Barrows 1987, p. 2)) 
and variations across its range (plants in the northwestern portion of 
the range where rainfall is higher are more likely to grow larger and 
survive into their second year or longer (Meinke et al. 2007, p. 25)). 
However, the specific optimal soil moisture range for the taxon is 
unknown.
    Additionally, the taxon does not grow in some areas that appear to 
contain suitable habitat. For example, Astragalus lentiginosus var. 
coachellae grows on some portions of the alluvial sand deposits on 
floodplain terraces of Morongo Wash, but not others, and it does not 
grow in the bed of the wash when the bed is dry even though the bed 
contains sandy substrates (J. Avery, USFWS Biologist, pers. obs. 2004-
2009). These apparent inconsistencies may be due to microsite 
differences (such as nutrient availability, soil microflora or 
microfauna, soil texture, or moisture). Research is needed to determine 
the specific nutritional and physiological requirements of A. l. var. 
coachellae.

Sites for Reproduction

    Astragalus lentiginosus var. coachellae plants, like most plants, 
do not require areas for breeding or reproduction other than the areas 
they occupy and any area necessary for pollinators and seed dispersal. 
Reproduction sites accommodate all phases of the plant's life history. 
Seeds likely require certain soil conditions to germinate (for example, 
moisture and nutrient levels within a certain range or close proximity 
to the soil surface), but as discussed above, we do not yet know what 
those requirements are. In addition, wind is important for the 
dispersal of the windblown fruits into

[[Page 10455]]

temporally unoccupied habitat (metapopulation structure) of A. l. var. 
coachellae.
    The primary visitors of Astragalus lentiginosus var. coachellae 
appear to be nonnative honeybees (Apis mellifera) (Meinke et al. 2007, 
p. 36). These bees appear to be flexible in their choice of nesting 
sites. For example, bee nests were found in discarded tires, in Tamarix 
spp. trees, and under a bridge near A. l. var. coachellae occurrences 
(Meinke et al. 2007, p. 36).
    Native solitary bees, which may be the natural pollinators of 
Astragalus lentiginosus var. coachellae, utilize several plant species 
as pollen and nectar sources (Karron 1987, p. 188). Maintaining 
adequate populations of these bees within or near A. l. var. coachellae 
occurrences, as well as between A. l. var. coachellae occurrences, 
likely depends on the presence of a variety of native plants in 
sufficient numbers. We do not know, however, why native bees have not 
yet been observed pollinating A. l. var. coachellae. Until specific 
pollinators for A. l. var. coachellae are identified, we are unable to 
consider protection of those pollinators' specific habitat explicitly 
via this critical habitat designation. Therefore, based on the 
information above, we identify aeolian sand transport corridors as 
providing space needed for pollen and seed dispersal and pollinator 
movement to be a physical or biological feature essential to the 
conservation of this taxon.

Habitats Protected From Disturbance or Representative of the 
Historical, Geographical, and Ecological Distributions of the Taxon

    Astragalus lentiginosus var. coachellae is strongly associated with 
active, stabilized, ephemeral, and shielded sandy substrates in the 
Coachella Valley (Sanders and Thomas Olsen Associates 1996, p. 3; 
Barrows and Allen 2007, p. 323). This taxon is primarily found on loose 
aeolian (wind transported) or fluvial (water transported) sands that 
form dunes or sand fields and along margins of sandy washes (Sanders 
and Thomas Olsen Associates 1996, p. 3). Please see the Background 
section above for a description of the sand transport system.
    In order to maintain adequate replenishment of sands into aeolian 
sand depositional areas, it is important that sand-transport corridors 
between fluvial and aeolian sand depositional areas remain unobstructed 
for wind passage. The strong wind energy in this region can also erode 
sands from wash margins and suitable A. l. var. coachellae habitat, 
temporally shifting A. l. var. coachellae habitat into other areas, and 
thereby allowing the taxon to be dispersed and to colonize new areas or 
recolonize previously occupied areas. As a result, it is also necessary 
to protect sufficient space to allow for these dynamic aeolian sand 
deposits to shift in their distribution. Therefore, based on the 
information above, we identify the fluvial and aeolian portions of the 
sand transport system that provide habitat protected from disturbance 
or representative of the historical, geographical, and ecological 
distributions of the taxon to be a physical or biological feature 
essential to the conservation of this taxon.
Primary Constituent Element for Astragalus lentiginosus var. coachellae
    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of Astragalus lentiginosus var. coachellae within the 
geographical area occupied at the time of listing, focusing on the 
features' primary constituent elements (PCEs). Primary constituent 
elements are those specific elements of the physical or biological 
features that provide for a species' life-history processes.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the taxon's 
life-history processes, we determine that the primary constituent 
element specific to Astragalus lentiginosus var. coachellae is:
    Sand formations associated with the sand transport system in 
Coachella Valley, California. These sand formations have the following 
features:
    (a) They are active sand dunes, stabilized or partially stabilized 
sand dunes, active or stabilized sand fields (including hummocks 
forming on leeward sides of shrubs), ephemeral sand fields or dunes, 
and fluvial sand deposits on floodplain terraces of active washes.
    (b) They are found within the fluvial sand depositional areas, and 
the aeolian sand source, transport, and depositional areas of the sand 
transport system.
    (c) They comprise sand originating in the hills surrounding 
Coachella Valley and alluvial deposits at the base of the Indio Hills, 
which is moved into the valley by water (fluvial transport) and through 
the valley by wind (aeolian transport).
    We consider the fluvial sand depositional areas and the aeolian 
sand source, transport, and depositional areas of the sand transport 
system described in (b) to be within the geographical area occupied by 
Astragalus lentiginosus var. coachellae at the time the taxon was 
listed, whereas the fluvial sand transport areas referenced in (c) are 
considered to be outside the geographical area occupied by the taxon at 
the time of listing or currently. The sand formations provide substrate 
components and conditions suitable for growth. The aeolian sand 
transport corridor also provides space for seed dispersal and 
pollinator movement needed to maintain sand movement and genetic 
diversity of the taxon.
    With this designation of critical habitat, we identify the physical 
or biological features essential to the conservation of the taxon, 
focusing on the identification of the features' primary constituent 
element sufficient to support the life-history processes of the taxon.
Special Management Considerations or Protection
    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features that are essential to the conservation of 
the species and that may require special management considerations or 
protection. The features essential to the conservation of this taxon 
may require special management considerations or protection to reduce 
the following threats: direct and indirect effects of development 
(urban and recreational), nonnative plant species, unauthorized off-
highway vehicle (OHV) impacts, mining and other activities or 
structures that may cause alteration of stream flow, and groundwater 
pumping.

Development

    The Coachella Valley continues to attract increasing numbers of 
people and associated urban development. Urban and recreational 
development can impact Astragalus lentiginosus var. coachellae directly 
by converting suitable, often-occupied, habitat to structures, 
infrastructure, landscaping, or other nonnatural ground cover that does 
not support the growth of the taxon. Structures and landscaping can 
also impact A. l. var. coachellae habitat indirectly by altering local 
aeolian and fluvial regimes. Such alterations can result in degraded A. 
l. var. coachellae habitat downstream or downwind of developed areas by 
inhibiting the movement of loose, unconsolidated sands needed for the 
formation and maintenance of suitable habitat vital to the growth and 
reproduction of the taxon. If the sand transport system is

[[Page 10456]]

altered, sand cannot be moved through the valley effectively to replace 
sand lost from the system downstream/downwind as a result of ongoing 
fluvial and aeolian processes.
    Special management considerations or protection of the essential 
physical or biological features within critical habitat areas are 
needed to address the threats posed to Astragalus lentiginosus var. 
coachellae habitat by urban and recreational development. Management 
actions that could ameliorate these threats include, but are not 
limited to: Protection of lands that support suitable habitat and 
associated sand transport systems and siting future development such 
that disruption of fluvial and aeolian sand transport processes is 
minimized and deposition areas are preserved. These management actions 
will protect the essential physical or biological features for the 
taxon by decreasing the direct loss of habitat to development and by 
helping to maintain the sand transport system and sand deposition areas 
that together provide the sand formations that are necessary components 
of A. l. var. coachellae habitat.
    Preserving large areas of suitable habitat with intact wind and 
depositional regimes and preserving areas vital to the maintenance of 
the sand transport system are important to maintain existing habitat 
and prevent further habitat loss. Preserving a variety of different 
habitat types (for example, sand dunes, sand fields) throughout the 
range of the taxon should help maintain the genetic and demographic 
diversity (individuals in different age classes at any given time) of 
Astragalus lentiginosus var. coachellae.
    Designing and orienting structures, infrastructure, and landscaping 
such that they minimize the blockage of sand movement will also help to 
prevent the disruption of the sand transport system and further habitat 
loss. For example, orienting a building so that the face of the 
building is at an oblique angle with the prevailing wind direction may 
allow more sand to move around the building than would occur if the 
face of the building were at a right angle with the direction of 
windblown sand movement. Planning development such that structures and 
landscaping are located outside of areas vital to sand transport will 
also help lessen the degradation of Astragalus lentiginosus var. 
coachellae habitat.

Nonnative Plants

    Invasive nonnative plant species, such as Brassica tournefortii 
(Saharan mustard), Schismus barbatus (Mediterranean grass), and Salsola 
tragus (Russian-thistle), can impact Astragalus lentiginosus var. 
coachellae habitat by stabilizing loose sediments and reducing 
transport of sediment to downwind areas, thus making habitat unsuitable 
for A. l. var. coachellae. Additionally, Tamarix spp. (salt cedar) can 
create wind breaks in the aeolian transport system and is used to 
decrease the movement of sand, for example, onto railroad tracks and 
infrastructure right-of-ways in the Coachella Valley. Dense cover of 
nonnative taxa may also impede the natural wind dispersal of the mature 
fruits of A. l. var. coachellae. This will curtail natural reproduction 
within a given site and natural dispersal to repopulate temporally 
unoccupied sites.
    Management activities that could ameliorate these threats include, 
but are not limited to: Active removal of nonnative plant species and 
targeted herbicide application (provided herbicides can be shown not to 
negatively impact Astragalus lentiginosus var. coachellae plants or 
seeds). These management activities will protect the essential physical 
or biological features for the taxon by helping to control nonnative 
plants, which can degrade Astragalus lentiginosus var. coachellae 
habitat.

Unauthorized Off-Highway Vehicle (OHV) Impacts

    Unauthorized OHV use may impact Astragalus lentiginosus var. 
coachellae habitat by making substrate conditions unsuitable for growth 
through the alteration of the sand transport system, changes in plant 
community composition, and disruption of the substrate, which can cause 
soils to lose moisture and may also impact soil microflora or 
microfauna (USFWS 2008, p. 8766). The native plant community associated 
with A. l. var. coachellae habitat allows for sand movement and does 
not inhibit dispersal. Disturbance from OHV use can affect the plant 
composition of the native plant community. Management activities that 
could ameliorate the threat of unauthorized OHV use include fencing and 
signage of habitat areas to assist in educating the public and engaging 
local authorities to improve the enforcement of laws prohibiting OHV 
unauthorized use. Control of unauthorized OHV use in habitat occupied 
by A. l. var. coachellae has recently improved through the efforts of a 
local law enforcement task force in habitat areas including lands 
managed by the Bureau of Land Management (BLM) in the Willow Hole 
(depositional area in Unit 3) and Snow Creek (depositional area in Unit 
1) areas, although OHV use remains on many privately owned lands.

Alteration of Stream Flow

    The construction and operation of water percolation ponds, sand and 
gravel mines, and, to a lesser degree, dikes and debris dams can 
negatively impact Astragalus lentiginosus var. coachellae habitat if 
they prevent the fluvial transport of sand to habitat areas through 
diversion, channelization, or damming (Griffiths et al. 2002, pp. 13, 
23). For example, the percolation ponds constructed on BLM and 
Coachella Valley Water District lands in the Whitewater River 
floodplain have substantially altered the transport of sand to habitat 
areas downstream and downwind, resulting in the severe degradation of 
sand and loss of A. l. var. coachellae habitat in these areas 
(Griffiths et al. 2002, pp. 6, 42).
    Management activities that could ameliorate the threats posed to 
Astragalus lentiginosus var. coachellae habitat by alteration of stream 
flow include, but are not limited to: Working with concerned parties to 
find and implement alternatives that allow for the removal or 
reconfiguration of existing barriers to fluvial sand transport, 
restoring sand transport to a more natural state, and working with 
concerned parties to design and implement future projects to maximize 
conservation/restoration of natural sand transport. These management 
activities will protect the essential physical or biological features 
for the taxon by helping to maintain the sand transport system that 
provides the sand that creates the sand formations that form the basis 
of A. l. var. coachellae habitat.

Groundwater Pumping

    Hummocks (local accumulations of sand that form when sand 
accumulates around, and is held in place by, shrubs or clumps of 
vegetation) formed by Prosopis spp. (mesquite, which has deep tap roots 
to reach groundwater, and is thus adversely impacted when the 
groundwater table is lowered beyond the reach of its roots) and other 
shrubs contribute to the creation and stabilization of sand dunes and 
sand fields by anchoring dunes and making them less vulnerable to wind 
erosion. Windblown sand accumulates in areas where wind speed is 
reduced (by topographical features, rocks, shrubs, or other objects) 
near the ground (Fryberger and Ahlbrandt 1979, p. 440). Prosopis 
glandulosa var. torreyana (honey mesquite) is the native mesquite in 
western Riverside County. The shrubs in the hummock help to stabilize 
and support sand deposits around the

[[Page 10457]]

hummock, which support Astragalus lentiginosus var. coachellae 
occurrences and its sand dune and field habitat. These shrubs, unlike 
nonnative plants used as windbreaks as discussed above, do not degrade 
A. l. var. coachellae habitat by substantially blocking movement of 
sand to habitat areas downwind. The mesquite shrubs in the Banning 
Fault/Willow Hole area are senescent and appear to be dying, likely due 
to ongoing artificial lowering of groundwater levels in the subbasin to 
provide water for human use (Mission Springs Water District 2008, p. 4-
97). Similar mesquite hummocks that existed historically have already 
been lost in and near the Thousand Palms Reserve (in the Thousand Palms 
Conservation Area), likely due to groundwater withdrawals (based on 
water well log data, field observation, and aerial photos) (J. Avery, 
pers. obs. 2006). Loss of the anchoring mesquite shrubs will lead to 
the loss of the associated hummocks over time by the erosion of sand 
deposits, therefore affecting A. l. var. coachellae habitat created or 
maintained by the trapping of sand.
    Management activities that could ameliorate the threats posed to 
Astragalus lentiginosus var. coachellae habitat by groundwater pumping 
include, but are not limited to: Subsurface irrigation of existing 
mesquite plants, and the planting, restoring, and irrigating of 
mesquite where needed; and removal of extensive tamarisk, which can 
compete with A. l. var. coachellae for groundwater, along railroad 
rights-of-way, water courses, oases, etc. These management activities 
will protect the essential physical or biological features for A. l. 
var. coachellae by helping to maintain much of the extant mesquite 
hummocks within the range of the taxon and by restoring an undetermined 
acreage of historical mesquite hummocks that maintain (or will 
maintain) portions of A. l. var. coachellae habitat.
    In summary, threats to Astragalus lentiginosus var. coachellae 
habitat include urban and recreational development, nonnative plant 
species, OHV impacts, alteration of stream flow, and groundwater 
pumping. We find that the areas designated as critical habitat within 
the geographical area occupied by the taxon at the time of listing 
contain the physical or biological features essential to the 
conservation of A. l. var. coachellae and that these features may 
require special management considerations or protection. Special 
management considerations or protection may be required to eliminate, 
or reduce to a negligible level, the threats affecting each unit or 
subunit and to preserve and maintain the essential features that the 
critical habitat units and subunits provide to A. l. var. coachellae. 
Additional discussions of threats facing individual sites are provided 
in the individual unit descriptions in the Critical Habitat Designation 
section below.
Criteria Used To Identify Critical Habitat
    As required by section 4(b)(2) of the Act, we use the best 
scientific and commercial data available to designate critical habitat. 
We reviewed available information pertaining to the habitat 
requirements of the species. In accordance with the Act and its 
implementing regulation at 50 CFR 424.12(e), we considered whether 
designating additional areas--outside those currently occupied as well 
as those occupied at the time of listing--are necessary to ensure the 
conservation of the species. We relied on information in articles in 
peer-reviewed journals, the Coachella Valley MSHCP/NCCP, survey reports 
and other unpublished materials, and expert opinion or personal 
knowledge. We also used the model developed by the Coachella Valley 
Mountains Conservancy (CVMC) to help identify Astragalus lentiginosus 
var. coachellae habitat (CVMC 2004). Finally, we used information from 
the proposed (69 FR 74468; December 14, 2004) and final (70 FR 74112; 
December 14, 2005) critical habitat rules, the current 5-year status 
review (Service 2009), the proposed revised critical habitat rule (76 
FR 53224; August 25, 2011), and other information in our files.
    We are designating critical habitat in areas within the 
geographical area occupied by the species at the time of listing in 
1998. We also are designating specific areas outside the geographical 
area occupied by A. l. var. coachellae at the time of listing, because 
we have determined that such areas are essential for the conservation 
of the taxon. These areas support sand transport processes that are 
vital to maintaining suitable habitat, and therefore are essential for 
the conservation of the taxon.
    Our use of a habitat model to help identify Astragalus lentiginosus 
var. coachellae habitat was supported by a peer reviewer who stated,

    ``Because A. l. var. coachellae is reliant on specialized, 
dynamic, habitat where not only the habitat must be preserved but 
the processes which create the habitat must be preserved[,] 
prediction of this habitat may be easier than documenting it. 
Because much of the habitat which is currently occupied by A. l. 
var. coachellae may only be occupied by seed in the soil seed bank 
and not [by an] easily identifiable vegetative form[,] the 
predictive power of a model is similarly important.'' (Knaus, 2011, 
p. 1)

    Suitable habitat may be occupied by the taxon even if no plants 
appear above-ground for several years. Astragalus lentiginosus var. 
coachellae populations survive seasonal and annual drought periods 
through dormant seeds in the soil (seed bank) as well as root crowns. 
Consequently, the number of standing plants at any given time is only a 
limited indication of population size (Meinke et al. 2007, p. 39). It 
is not known how long A. l. var. coachellae seeds remain viable, but 
studies on A. l. var. micans demonstrate that buried seeds may remain 
viable for at least 8 years (Pavlik and Barbour 1988, p. 233). A study 
including Astragalus lentiginosus var. salinus found that more than 94 
percent of seeds remained viable after being buried in the soil for 6 
years (Ralphs and Cronin 1987, p. 794). Therefore, we also considered 
areas to be occupied where suitable habitat did not contain aboveground 
individuals, but likely contain seed banks and dormant root crowns of 
A. l. var. coachellae.
    We also determined which areas outside the geographical area 
occupied by the taxon at the time of listing that provide for the 
fluvial transport of sand from areas where sediment is generated to 
fluvial depositional areas occupied by Astragalus lentiginosus var. 
coachellae are essential for the conservation of A. l. var. coachellae 
because they maintain A. l. var. coachellae habitat (see steps 1, 2, 
and 3 under Areas Outside the Geographical Area Occupied at the Time of 
Listing section below).
    We defined the boundaries of each unit using the steps outlined 
below:

Areas Within the Geographical Area Occupied at the Time of Listing

    (1) Potential suitable habitat for Astragalus lentiginosus var. 
coachellae was first identified using areas included in the Coachella 
Valley Mountains Conservancy (CVMC) species distribution model for the 
taxon (CVMC 2004). The CVMC model was developed using survey data for 
A. l. var. coachellae (Bureau of Land Management, unpublished data 
2001), habitat variables, and expert opinion, and was created to assist 
in the design of preserves and to evaluate the potential benefits of 
the (then) proposed Coachella Valley MSHCP/NCCP for the plant (CVMC 
2004). Environmental variables associated with A. l. var. coachellae 
occurrence locations were identified, and maps containing those

[[Page 10458]]

variables were combined with Geographic Information Systems (GIS) land 
use and habitat data 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. The habitat types used 
to create the model represented conditions that result from the dynamic 
process of sand movement in the Coachella Valley floor; these habitat 
types are found in fluvial sand depositional areas and aeolian sand 
source, transport, and depositional areas (see Habitat section above 
for a detailed discussion of these habitat types). During our analysis 
for the 2005 critical habitat designation for A. l. var. coachellae, 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 documentation of A. l. var. coachellae occurrences in all of 
the natural communities used to create the model, and concluded that 
the model was reasonably capable of identifying suitable habitat for A. 
l. var. coachellae. We mapped the modeled habitat using GIS software, 
and refined the map to include only areas that we estimate contain the 
physical or biological features essential to the conservation of the 
taxon.
    (2) We analyzed lands covered by the Coachella Valley MSHCP/NCCP, 
and determined that Astragalus lentiginosus var. coachellae habitat 
within the plan's Conservation Areas sufficiently provides for the 
conservation of the taxon within areas covered by the Coachella Valley 
MSHCP/NCCP (Conservation Areas are a group of specific areas in which 
the bulk of the habitat conservation mandated by the HCP is to take 
place). We have determined that the modeled A. l. var. coachellae 
habitat outside of the Conservation Areas does not contain the physical 
or biological features essential to the conservation of the taxon 
because these areas exist as small, disjunct patches, other larger 
areas where sand transport has been blocked, or they do not contain 
documented occurrences of the taxon.
    The modeled Astragalus lentiginosus var. coachellae habitat areas 
that are covered by the Coachella Valley MSHCP/NCCP and are within the 
Conservation Areas are connected to the fluvial portion of the sand 
transport system. The PCE is found in these modeled habitat areas 
(fluvial sand transport within Conservation Areas is discussed in Areas 
Outside the Geographical Area Occupied at the Time of Listing section 
below). Modeled A. l. var. coachellae habitat areas that are covered by 
the Coachella Valley MSHCP/NCCP but are outside of the Conservation 
Areas may contain the PCE, but for reasons discussed above, we do not 
consider these areas to meet the definition of critical habitat for A. 
l. var. coachellae. Therefore, in areas covered by the Coachella Valley 
MSHCP/NCCP, we confined the critical habitat designation to lands 
within the Conservation Areas.
    (3) We added areas not covered under the Coachella Valley MSHCP/
NCCP, but that have been determined by biologists familiar with the 
taxon, its habitat, and its distribution, to contain the physical or 
biological features essential to the conservation of the taxon (see the 
2011 proposed critical habitat rule (76 FR 53224 (August 25, 2011)) for 
further discussion regarding these areas). The biologists used aerial 
map coverages, Service GIS data, and personal knowledge to determine 
these areas.

Areas Outside the Geographical Area Occupied at the Time of Listing

    We determined that designating only those areas within the 
geographical area occupied at the time of listing (also identified as 
the occupied fluvial and aeolian depositional areas and intervening 
areas needed for aeolian sand transport, pollen and seed dispersal, and 
pollinator movement) would not sufficiently provide for the 
conservation of Astragalus lentiginosus var. coachellae because 
movement of sand from areas where sediment is generated into areas 
where the taxon grows is vital to the maintenance of habitat for the 
taxon. For sufficient fine-grained sands to reach the aeolian system on 
the valley floor and support Astragalus lentiginosus var. coachellae, 
it is necessary to protect major fluvial channels that transport sand 
from the surrounding drainage basins as well as bajadas and 
depositional areas. The Coachella Valley Multiple Species Habitat 
Conservation Plan/Natural Community Conservation Plan (Coachella Valley 
MSHCP/NCCP) identifies the protection of the above-mentioned 
geomorphological processes, including sand transport, as a conservation 
goal for several taxa, including A. l. var. coachellae. It will be 
impossible to conserve or recover this taxon if fluvial sand transport 
sites and processes are lost. Therefore, we determined that certain 
fluvial sand transport areas are essential for the conservation of A. 
l. var. coachellae and should be designated as critical habitat 
regardless of the fact that these areas are outside the geographical 
area occupied by A. l. var. coachellae at the time the species was 
listed. We used the following steps to determine which portions of the 
fluvial sand transport system are essential for the conservation of A. 
l. var. coachellae:
Units 1, 2, and 3
    (1) We used aerial imagery to determine where the main stream 
channels conveying sand to the fluvial sand depositional areas in Units 
1, 2, and 3 (San Gorgonio River, Whitewater River, Snow Creek, Mission 
Creek, and Morongo Wash) are located, and used GIS software to draw 
polygons that define the extent of these streams.
    We considered only the lower reaches of main stream channels 
(fluvial sand transport areas) that move sediment from the base of the 
surrounding mountains and hills into the fluvial depositional areas on 
the valley floor to be essential for the conservation of the taxon. If 
the lower reaches of any of these main stream channels are lost, sand 
transport to portions of the occupied Astragalus lentiginosus var. 
coachellae habitat downstream and downwind will be lost as well. This 
has occurred where a sand mining operation located in the San Gorgonio 
River channel cut off delivery of sand from upstream areas, and reduced 
delivery of sand to the San Gorgonio River fluvial depositional areas 
by an estimated 14 percent (Griffiths et al. 2002, p. 21). Hence, a 
single project in a fluvial sand transport area could potentially 
hinder the movement of sand needed to maintain A. l. var. coachellae 
habitat.
    To determine the upstream extent of the fluvial sand transport 
areas, we used GIS data to determine where the ground slope of the main 
stream channels becomes greater than 10 percent. Griffiths et al. 
(2002) found that the majority of the sand reaching the valley floor 
areas in Units 1, 2, and 3 is generated (eroded from parent rock) in 
portions of the mountain drainages where the ground slope is greater 
than 10 percent. We have identified the portions of main stream 
channels with a ground slope of less than 10 percent as sand transport 
areas (areas where sand is transported from the base of surrounding 
mountains and hills, but little sand is generated).
Unit 4
    (2) The sand transport system moving sand into and through the 
Thousand Palms area (which contains Unit 4) differs from the system 
moving sand into and through Units 1, 2, and 3. In Unit 4, water moving 
through unnamed

[[Page 10459]]

washes erodes and moves sand from alluvial deposits at the base of the 
Indio Hills. Thus, both generation of sand and fluvial transport of 
sand into fluvial depositional areas occurs on these alluvial deposits. 
The occupied areas in Unit 4 depend on large flooding events to wash 
sands stored in channels on the alluvial valley floor deposits into 
fluvial sand depositional areas where the sand can be moved by aeolian 
processes. Therefore, for Unit 4, rather than using the 10 percent 
slope line to delineate fluvial sand transport areas as we did for 
Units 1, 2, and 3 (the areas supporting sand generation and fluvial 
sand transport in Unit 4 are less than 10 percent slope), we used 
aerial imagery to determine the extent of the alluvial deposits where 
the sand is stored, and used our GIS software to create a GIS polygon 
to encompass this area. We proposed this area in Unit 4 as critical 
habitat for Astragalus lentiginosus var. coachellae because the area 
and the fluvial sand transport processes it supports are vital to 
maintaining sand formations in the occupied portions of Unit 4 that 
form the basis of A. l. var. coachellae habitat in that unit.

Final Critical Habitat Designation

    In this revised critical habitat designation for Astragalus 
lentiginosus var. coachellae, we selected areas based on the best 
scientific data available that possess those physical or biological 
features essential to the conservation of the taxon and that may 
require special management considerations or protection and other areas 
essential for the conservation of A. l. var. coachellae. When 
determining critical habitat boundaries within this final rule, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
physical or biological features for Astragalus lentiginosus var. 
coachellae. The scale of the maps we prepared under the parameters for 
publication within the Code of Federal Regulations may not reflect the 
exclusion of such developed lands. Any such lands inadvertently left 
inside critical habitat boundaries shown on the maps of this final rule 
have been excluded by text in the rule and are not designated as 
critical habitat. Therefore, a Federal action involving these lands 
will not trigger section 7 consultation with respect to critical 
habitat and the requirement of no adverse modification unless the 
specific action may affect adjacent critical habitat.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. We include more detailed information 
on the boundaries of the critical habitat designation in the preamble 
of this document. We will make the coordinates or plot points or both 
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R8-ES-2011-0064, on our Internet 
sites http://www.fws.gov/carlsbad/GIS/CFWOGIS.html, and at the Carlsbad 
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT above).
    We are designating as critical habitat lands that we have 
determined are within the geographical area occupied at the time of 
listing and contain sufficient elements of the physical or biological 
features to support life-history processes essential to the 
conservation of the taxon, and lands outside of the geographical area 
occupied at the time of listing that we have determined are essential 
for the conservation of Astragalus lentiginosus var. coachellae.
    We are designating four units as critical habitat for Astragalus 
lentiginosus var. coachellae. The critical habitat areas described 
below constitute our best assessment at this time of areas that meet 
the definition of critical habitat. Those four units are: (1) San 
Gorgonio River/Snow Creek System, (2) Whitewater River System, (3) 
Mission Creek/Morongo Wash System, and (4) Thousand Palms System. Table 
1 shows acres of land proposed as critical habitat in the 2011 proposed 
revised critical habitat rule for A. l. var. coachellae (76 FR 53224), 
acres of land excluded from this critical habitat designation under 
section 4(b)(2) of the Act (see Exclusions Based on Other Relevant 
Impacts section below for detailed discussion of exclusions), and acres 
of land designated as critical habitat for A. l. var. coachellae as a 
result of this revised critical habitat rule for all four units. We are 
designating 7,550 ac (3,055 ha) in accordance with section 3(5)(A)(i) 
of the Act (specific areas within the geographical area occupied by the 
taxon at the time of listing) and 2,053 ac (831 ha) in accordance with 
section 3(5)(A)(ii) of the Act (specific areas outside the geographical 
area occupied by the taxon at the time of listing).
BILLING CODE 4310-55-P

[[Page 10460]]

[GRAPHIC] [TIFF OMITTED] TR13FE13.013


[[Page 10461]]


[GRAPHIC] [TIFF OMITTED] TR13FE13.014


[[Page 10462]]


[GRAPHIC] [TIFF OMITTED] TR13FE13.015


[[Page 10463]]


[GRAPHIC] [TIFF OMITTED] TR13FE13.016


[[Page 10464]]


[GRAPHIC] [TIFF OMITTED] TR13FE13.017


[[Page 10465]]


[GRAPHIC] [TIFF OMITTED] TR13FE13.018

BILLING CODE 4310-55-C
    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat, for Astragalus lentiginosus 
var. coachellae below.
Unit 1: San Gorgonio River/Snow Creek System
    Unit 1 consists of 1,172 ac (474 ha) of Federal land, 61 ac (25 ha) 
of private land, and 102 ac (41 ha) of local government-owned land in 
the Coachella Valley, Riverside County. Unit 1 contains approximately 
238 ac (96 ha) of unoccupied fluvial sand transport area associated 
with the San Gorgonio River and Snow Creek drainages. These areas are 
being designated under section 3(5)(A)(ii) of the Act, because they are 
specific areas outside the geographical area occupied by the species at 
the time of listing and are essential for the conservation of the 
species. The remainder of Unit 1 consists of approximately 1,097 ac 
(444 ha) of occupied suitable habitat extending approximately from the 
eastern edge of the community of Cabazon to just west of Whitewater 
River, and is approximately bound by State Route 111 to the north and 
the foot of the San Jacinto Mountains to the south. These areas are 
being designated under section 3(5)(A)(i) of the Act, because they are 
within the geographical area occupied by the species at the time of 
listing and contain those physical or biological features essential to 
the conservation of the species. In total, Unit 1 consists of 1,335 ac 
(540 ha) of land.
    Unoccupied fluvial sand transport areas in this unit contain active 
washes associated with San Gorgonio River and Snow Creek, which carry 
substrates created by fluvial erosion of the surrounding hills to 
occupied fluvial deposition areas in Unit 1 on the valley floor 
(Griffiths et al. 2002, pp. 10-11). The unoccupied areas in Unit 1 are 
essential for the conservation of Astragalus lentiginosus var. 
coachellae because they support the fluvial sand transport process 
crucial to the maintenance of the sand formations that form the 
foundation of A. l. var. coachellae habitat in the occupied areas of 
Unit 1.
    Occupied habitat areas of Unit 1 constitute one of the four main 
habitat areas supporting Astragalus lentiginosus var. coachellae 
(Coachella Valley MSHCP/NCCP, p. 9-21) and contain the physical or 
biological features essential to the conservation of A. l. var. 
coachellae, including active sand dunes, sand fields, and stabilized 
and partially stabilized sand fields that provide substrate components 
and conditions suitable for the growth of A. l. var. coachellae 
(Coachella Valley MSHCP/NCCP 2008, Table 10-1a) and areas over which 
unobstructed aeolian sand transport can occur. The essential features 
in Unit 1 may require special management considerations or protection 
to address threats from nonnative invasive plants and unauthorized OHV 
activity in the occupied areas and threats from alteration of stream 
flow in the unoccupied areas that impact habitat in the occupied areas. 
Please see the Special Management Considerations or Protection section 
of this rule for a discussion of the threats to A. l. var. coachellae 
habitat and potential management considerations.
    The physical or biological features in the occupied areas in Unit 1 
are also essential to the conservation of Astragalus lentiginosus var. 
coachellae because they support the westernmost occurrences of the 
taxon. Because of their geographic location, these plants and their 
habitat receive more rainfall than occurrences and suitable habitat 
farther east, which allows many individuals to survive more than one 
year, grow larger, and produce more seed, all of which promote the 
stability and reduce the chance of extirpation of the occurrences in 
this unit (Meinke et al. 2007, p. 33). Also, due to strong winds moving 
through this area from the west to east, the occupied habitat in Unit 1 
likely acts as a source of seed (and hence, a source of genetic 
diversity) for areas of suitable habitat to the southeast (Meinke et 
al. 2007, p. 40). Unit 1 likely also contributes to the maintenance of 
genetic diversity in other occupied areas through the movement of 
pollinators (Meinke et al. 2007, p. 37).
Unit 2: Whitewater River System
    Unit 2 consists of 1,955 ac (791 ha) of Federal land; 19 ac (8 ha) 
of private land; and 176 ac (71 ha) of local government-owned land in 
the Coachella Valley, Riverside County. Unit 2 contains approximately 
554 ac (224 ha) of unoccupied fluvial sand transport areas associated 
with the Whitewater River watershed. These areas are being designated 
under section 3(5)(A)(ii) of the Act because they are specific areas 
outside the geographical area occupied by the species at the time of 
listing and are essential for the conservation of the taxon. The 
remainder of Unit 2 consists of approximately 1,596 ac (646 ha) of 
occupied suitable habitat and is approximately bound by State Route 111 
to the west, the Southern Pacific Railroad to the north and east, and 
dense urban development in the cities of Palm Springs and Cathedral 
City to the south. These areas are being designated under section 
3(5)(A)(i) of the Act because they are within the geographical area 
occupied by the species at the time of listing and contain those 
physical or biological features essential to the conservation of the 
species. In total, Unit 2 consists of 2,150 ac (870 ha) of land.

[[Page 10466]]

    Unoccupied fluvial sand transport areas in this unit contain active 
washes associated with Whitewater River, which carry substrates created 
by fluvial erosion of the surrounding hills to occupied fluvial 
deposition areas in Unit 2 on the valley floor (Griffiths et al. 2002, 
pp. 10-11). The unoccupied areas in Unit 2 are essential for the 
conservation of Astragalus lentiginosus var. coachellae because they 
contain portions of the Whitewater River that support the fluvial sand 
transport process crucial to the maintenance of the sand formations 
that form the foundation of A. l. var. coachellae habitat in the 
occupied areas of Unit 2.
    Occupied habitat areas of Unit 2 constitute one of the four main 
habitat areas supporting Astragalus lentiginosus var. coachellae 
(Coachella Valley MSHCP/NCCP, p. 9-21) and contain the physical or 
biological features essential to the conservation of A. l. var. 
coachellae, including active and ephemeral sand fields and stabilized 
and partially stabilized sand fields that provide substrate components 
and conditions suitable for the growth of A. l. var. coachellae 
(Coachella Valley MSHCP/NCCP 2008, Table 10-1a) and areas over which 
unobstructed aeolian sand transport can occur. The essential features 
in Unit 2 may require special management considerations or protection 
to address threats from nonnative plants, urban development, alteration 
of stream flow, unauthorized OHV activity in the occupied depositional 
areas, and threats from alteration of stream flow that impact habitat 
in occupied areas. Please see the Special Management Considerations or 
Protection section of this rule for a discussion of the threats to A. 
l. var. coachellae habitat and potential management considerations.
    The physical or biological features in the occupied areas in Unit 2 
are also essential to the conservation of Astragalus lentiginosus var. 
coachellae because they serve as a corridor between the habitat and 
occurrences to the west in Unit 1 and the habitat and occurrences to 
the east in Unit 3. Although Unit 2 does not serve as a substantial 
source of aeolian sand to Unit 3 relative to the onsite fluvial sand 
transport areas in Unit 3 (Mission Creek and Morongo Wash), it may 
serve as a corridor for gene flow by means of pollen and seed dispersal 
between Units 1, 2, and 3 due to dispersal of seeds from Unit 1 into 
Unit 2 and from Unit 2 into Unit 3, combined with movement of 
pollinators among the three units (Meinke et al. 2007, p. 37).
Unit 3: Mission Creek/Morongo Wash System
    Unit 3 consists of 502 ac (203 ha) of Federal land, 1,497 ac (606 
ha) of private land, and 268 ac (108 ha) of local government-owned land 
in the Coachella Valley, Riverside County. Unit 3 contains 
approximately 1,055 ac (427 ha) of unoccupied fluvial sand transport 
area associated with the Mission Creek watershed and a portion of the 
Morongo Wash watershed (north of Pierson Boulevard). These areas are 
being designated under section 3(5)(A)(ii) of the Act because they are 
specific areas outside the geographical area occupied by the species at 
the time of listing and are essential for the conservation of the 
taxon. The remainder of Unit 3 consists of approximately 1,211 ac (490 
ha) of occupied habitat and includes sand deposits on the floodplain 
terraces of Morongo Wash south of Pierson Boulevard, and fluvial 
depositional areas and aeolian transport and depositional areas 
approximately bound (clockwise from the western boundary) by Little 
Morongo Road, 18th Avenue, Palm Drive, 20th Avenue, Artesia Road, and 
Mihalyo Road, in or near the City of Desert Hot Springs. These areas 
are being designated under section 3(5)(A)(i) of the Act, because they 
are within the geographical area occupied by the species at the time of 
listing. In total, Unit 3 consists of 2,313 ac (936 ha) of land.
    Unoccupied fluvial sand transport areas in this unit contain active 
washes associated with Mission Creek and Morongo Wash (north of Pierson 
Boulevard), which carry substrates created by fluvial erosion of the 
surrounding hills to occupied fluvial deposition areas in Unit 3 on the 
valley floor (Griffiths et al. 2002, pp. 10-11). The unoccupied areas 
in Unit 3 are essential for the conservation of Astragalus lentiginosus 
var. coachellae because they contain portions of Mission Creek and 
Morongo Wash that support the fluvial sand transport process crucial to 
the maintenance of the sand formations that form the foundation of A. 
l. var. coachellae habitat in the occupied areas of Unit 3.
    Occupied habitat areas of Unit 3 constitute one of the four main 
habitat areas supporting Astragalus lentiginosus var. coachellae 
(Coachella Valley MSHCP/NCCP, pp. 9-21-9-22) and contain the physical 
or biological features essential to the conservation of A. l. var. 
coachellae including stabilized and partially stabilized sand dunes, 
active and ephemeral sand fields, stabilized and partially stabilized 
sand fields, fluvial sand deposits on floodplain terraces of active 
washes (certain areas of Morongo Wash), and mesquite hummocks that 
provide substrate components and conditions suitable for the growth of 
A. l. var. coachellae (Coachella Valley MSHCP/NCCP 2008, Table 10-1a). 
Unit 3 also contains areas over which unobstructed aeolian sand 
transport can occur. The essential features in Unit 3 may require 
special management considerations or protection to address threats from 
nonnative plants, urban development, OHV use in the occupied floodplain 
terrace areas, and threats from alteration of stream flow that impact 
habitat in occupied areas. Please see the Special Management 
Considerations or Protection section of this rule for a discussion of 
the threats to A. l. var. coachellae habitat and potential management 
considerations.
    The physical or biological features in occupied areas in Unit 3 are 
also essential to the conservation of Astragalus lentiginosus var. 
coachellae because they support the northernmost extent of the taxon's 
range and large occurrences containing high densities of the taxon. 
Each of these factors contributes to the overall genetic diversity of 
A. l. var. coachellae (Meinke et al. 2007, p. 35) and the maintenance 
of genetic diversity via the movement of seeds and pollinators (Meinke 
et al. 2007, p. 37). The large numbers of individuals also likely 
contribute numerous seeds to the soil seed bank. Unit 3 also contains 
the only area where A. l. var. coachellae is known to occur in large 
numbers on floodplain terraces of an active wash (Morongo Wash).
Unit 4: Thousand Palms System
    Unit 4 consists of 3,670 ac (1,485 ha) of Federal land, and 182 ac 
(74 ha) of private land in the Coachella Valley, Riverside County. Unit 
4 contains approximately 206 ac (83 ha) of unoccupied lands supporting 
fluvial sand transport and fluvial deposition (this unit contains 
alluvial sand deposition areas that are not occupied) associated with 
drainages originating in the Indio Hills. These areas are being 
designated under section 3(5)(A)(ii) of the Act because they are 
specific areas outside the geographical area occupied by the species at 
the time of listing and are essential for the conservation of the 
species. The remainder of Unit 4 consists of approximately 3,646 ac 
(1,475 ha) of occupied habitat area in the Thousand Palms Preserve 
along Ramon Road. These areas are being designated under section 
3(5)(A)(i) of the Act because they are within the geographical area 
occupied by the

[[Page 10467]]

species at the time of listing and contain those physical or biological 
features essential to the conservation of the species. In total, Unit 4 
consists of 3,851 ac (1,559 ha) of land.
    Unoccupied areas in this unit contain active ephemeral washes that 
carry substrates from alluvial deposits to alluvial fan areas where 
they can be transported to occupied habitat areas via wind (Lancaster 
et al. 1993, p. 28). The unoccupied areas in Unit 4 are essential for 
the conservation of Astragalus lentiginosus var. coachellae because 
they contain alluvial sand deposits that support the fluvial and 
aeolian sand transport processes crucial to the maintenance of the sand 
formations that form the foundation of A. l. var. coachellae habitat in 
the occupied areas of Unit 4.
    Occupied habitat areas of Unit 4 constitute one of the four main 
habitat areas supporting Astragalus lentiginosus var. coachellae 
(Coachella Valley MSHCP/NCCP, p. 9-22) and contain the physical or 
biological features essential to the conservation of A. l. var. 
coachellae, including active dunes, active sand fields, and mesquite 
hummocks that provide substrate components and conditions suitable for 
the growth of A. l. var. coachellae (Coachella Valley MSHCP/NCCP 2008, 
Table 10-1a), and areas over which unobstructed aeolian sand transport 
can occur. The essential features in the occupied portion of Unit 4 may 
require special management considerations or protection to address 
threats from nonnative plants. According to Meinke et al. (2007, p. 
18), this area supports infestations of Brassica tournefortii (Saharan 
mustard); researchers observed thousands of acres of A. l. var. 
coachellae habitat inundated with dense populations of this nonnative 
plant species. Existing suburban development may require active 
management measures (for example, collection of sand from developed 
areas for redistribution within the wind movement corridor). The 
expansion of new urban development in areas supporting fluvial sand 
transport and deposition is also a threat to the essential features in 
this unit that may require special management considerations or 
protection, as are unauthorized OHV activity and a proposed flood 
control project that could disrupt or permanently destroy the sand 
transport system in the Thousand Palms area by diverting drainages that 
provide sand to occupied areas during large flooding events. Please see 
the Special Management Considerations or Protection section of this 
rule for a discussion of the threats to A. l. var. coachellae habitat 
and potential management considerations.
    The physical or biological features in the occupied areas of Unit 4 
are also essential to the conservation of the species because they 
support occurrences containing large numbers of the taxon that 
contribute to the overall genetic diversity of Astragalus lentiginosus 
var. coachellae (Meinke et al. 2007, p. 35) and because they are 
located in the southeasternmost portion of the taxon's range that is 
hydrologically independent and physically isolated from the other 
units. As such, this unit is important to help buffer excessive losses 
in other parts of the range.

Effects of Critical Habitat Designation

Section 7 Consultation
    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    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. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, or 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying 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 we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or

[[Page 10468]]

control over the action (or the agency's discretionary involvement or 
control is authorized by law). Consequently, Federal agencies sometimes 
may need to request reinitiation of consultation with us on actions for 
which formal consultation has been completed, if those actions with 
discretionary involvement or control may affect subsequently listed 
species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for Astragalus lentiginosus var. 
coachellae. As discussed above, the role of critical habitat is to 
support life-history needs of the species and provide for the 
conservation of the species. For A. l. var. coachellae, this includes 
supporting the sand formations that form the basis of the taxon's 
habitat and the areas over which the associated sand transport 
processes that sustain these sand formations occur.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for Astragalus lentiginosus var. coachellae. These 
activities include, but are not limited to:
    (1) Actions that would interrupt the fluvial or aeolian transport 
of sand to areas occupied by A. l. var. coachellae. Such actions would 
lead to the degradation of the sand formations that form the basis of 
A. l. var. coachellae habitat by blocking sand from replenishing 
occupied areas where the sand is being removed by aeolian processes.
    (2) Actions that would damage or kill plants that trap sand and 
create sand formations that support A. l. var. coachellae (such as 
hummocks that contain Prosopis glandulosa var. torreyana (honey 
mesquite)). These include actions that lower the groundwater table 
below the reach of root systems of plants such as P. g. var. torreyana, 
which results in the death of the plants, and the loss of the sand 
formations to wind erosion.
    (3) Actions that alter waterways. Such actions could decrease the 
amount or alter the deposition location of sand entering the sand 
transport system, and thus reduce the amount of sand available for A. 
l. var. coachellae habitat.
    (4) Actions that contribute to the introduction or proliferation of 
nonnative plants, such as Brassica tournefortii (Saharan mustard) and 
trees planted as windbreaks. Such actions may interfere with the 
movement of sand, which would prevent sand from moving downwind and 
contributing to the sand formations that form the basis of A. l. var. 
coachellae habitat.
    (5) Actions such as development and landscaping that cover or 
remove substrate. Such actions convert suitable A. l. var. coachellae 
habitat to groundcover that does not support the taxon.
    (6) Actions such as OHV use that disrupt substrates. Such actions 
can cause sufficient alteration of sand formations supporting A. l. 
var. coachellae occurrences to make the habitat unsuitable to support 
the taxon.

Exemptions

Application of Section 4(a)(3) of the Act
    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    There are no Department of Defense lands that meet the definition 
of critical habitat and, as a result, no lands have been exempted under 
section 4(a)(3)(B)(i) of the Act.

Exclusions

Application of Section 4(b)(2) of the Act
    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat 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. The 
Secretary may exclude an 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. In making that determination, the statute on its face, as well 
as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise his discretion to exclude the area only if such exclusion 
would not result in the extinction of the species.
    When identifying the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area

[[Page 10469]]

would receive from the protection from destruction or adverse 
modification as a result of actions with a Federal nexus; the 
educational benefits of mapping essential habitat for recovery of the 
listed species; and any benefits that may result from a designation due 
to State or Federal laws that may apply to critical habitat.
    When identifying the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan that provides 
equal to or more conservation than a critical habitat designation would 
provide.
    In the case of Astragalus lentiginosus var. coachellae, the 
benefits of critical habitat include public awareness of A. l. var. 
coachellae presence and the importance of habitat protection, and in 
cases where a Federal nexus exists, increased habitat protection for A. 
l. var. coachellae due to the protection from destruction or adverse 
modification of critical habitat. In practice, a Federal nexus exists 
only on Federal land or for projects undertaken, funded, or requiring 
authorization by a Federal agency.
    When we evaluate the existence of a conservation plan, we consider 
a variety of factors, including but not limited to, whether the plan is 
finalized; how it provides for the conservation of the essential 
physical or biological features; whether there is a reasonable 
expectation that the conservation management strategies and actions 
contained in a management plan will be implemented into the future; 
whether the conservation strategies in the plan are likely to be 
effective; and whether the plan contains a monitoring program or 
adaptive management to ensure that the conservation measures are 
effective and can be adapted in the future in response to new 
information.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether exclusion would result in 
extinction. If exclusion of an area from critical habitat will result 
in extinction, we will not exclude it from the designation.
    Based on the information provided by entities seeking exclusion, as 
well as any additional public comments received, we evaluated whether 
certain lands in critical habitat Units 1 through 4 were appropriate 
for exclusion from this final designation pursuant to section 4(b)(2) 
of the Act. The Secretary is exercising his discretion to exclude 
several areas from critical habitat designation for Astragalus 
lentiginosus var. coachellae. Table 2 below provides approximate areas 
(ac, ha) of lands that meet the definition of critical habitat but are 
excluded under section 4(b)(2) of the Act in this final critical 
habitat rule.

                Table 2--Area Excluded From Critical Habitat Designation by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
                                                  Area meeting the definition of    Area excluded from critical
                                                         critical habitat                     habitat
             Unit                 Specific area  ---------------------------------------------------------------
                                                       acres         hectares          acres         hectares
----------------------------------------------------------------------------------------------------------------
1.............................  Coachella Valley           1,898             768           1,898             768
                                 MSHCP/NCCP.
                                Morongo Band of              313             127             313             127
                                 Mission Indians
                                 Lands.
                                Unit 1 total....           2,212             895           2,212             895
2.............................  Coachella Valley           4,558           1,844           4,558           1,844
                                 MSHCP/NCCP.
                                Agua Caliente                579             234             579             234
                                 Band of
                                 Cahuilla
                                 Indians Lands.
                                Unit 2 total....           5,137           2,078           5,137           2,078
3.............................  Coachella Valley           5,491           2,222           5,491           2,222
                                 MSHCP/NCCP.
4.............................  Coachella Valley           3,193           1,292           3,193           1,292
                                 MSHCP/NCCP.
Subtotal Coachella Valley MSHCP/NCCP............          15,140           6,127          15,140           6,127
Subtotal Tribal lands...........................             893             361             893             361
Total...........................................          15,874           6,413          15,874           6,413
----------------------------------------------------------------------------------------------------------------

    We believe these areas are appropriate for exclusion under the 
``other relevant factor'' provisions of section 4(b)(2) of the Act 
because:
    (1) Their value for conservation will be preserved into the future 
by existing protective actions.
    (2) Exclusion of these areas could help preserve the partnerships 
we developed with local stakeholders and encourage the establishment of 
future conservation and management of habitat for Astragalus 
lentiginosus var. coachellae and other sensitive taxa.
    (3) Exclusion of these areas could help preserve our partnerships 
with tribes and foster future dialog and cooperative actions as well as 
development of habitat management plans on tribal lands.

Exclusions Based on Economic Impacts

    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we prepared a draft economic analysis of the 
proposed critical habitat designation (Industrial Economics, Inc. (IEc) 
2012). The draft analysis, dated May 11, 2012, was made available for 
public review and comment from May 16 through June 15, 2012 (77 FR 
28846; May 16, 2011). Following the close of the comment period, a 
final economic analysis (FEA) (dated January 29, 2013) of the potential 
economic effects of the designation was developed taking into 
consideration the public comments and any new information (IEc 2013).
    The intent of the FEA is to quantify the economic impacts of all 
potential conservation efforts for Astragalus lentiginosus var. 
coachellae; some of these costs will likely be incurred regardless of 
whether we designate critical habitat (baseline). The economic impact 
of the critical habitat designation is analyzed by comparing scenarios 
both ``with critical habitat'' and ``without critical habitat.'' The 
``without critical habitat'' scenario represents the baseline for the 
analysis, considering protections already in place for the species (for 
example, under the Federal listing and other Federal, State, and local 
regulations). The baseline, therefore, represents the costs incurred 
regardless of whether critical habitat is designated. The ``with 
critical habitat'' scenario describes the incremental impacts 
associated specifically with the designation of critical habitat for 
the species. The incremental conservation efforts and associated 
impacts are those

[[Page 10470]]

not expected to occur absent the designation of critical habitat for 
the species. In other words, the incremental costs are those 
attributable solely to the designation of critical habitat above and 
beyond the baseline costs; these are the costs we consider in the final 
designation of critical habitat. The analysis looks retrospectively at 
baseline impacts incurred since the species was listed, and forecasts 
both baseline and incremental impacts likely to occur with the 
designation of critical habitat.
    The FEA also addresses how potential economic impacts are likely to 
be distributed, including an assessment of any local or regional 
impacts of habitat conservation and the potential effects of 
conservation activities on government agencies, private businesses, and 
individuals. The FEA measures lost economic efficiency associated with 
residential and commercial development and public projects and 
activities, such as economic impacts on water management and 
transportation projects, Federal lands, small entities, and the energy 
industry. Decisionmakers can use this information to assess whether the 
effects of the designation might unduly burden a particular group or 
economic sector. Finally, the FEA looks retrospectively at costs that 
have been incurred since 1998 (63 FR 53596, October 6, 1998), and 
considers those costs that may occur in the 20 years following the 
designation of critical habitat, which was determined to be the 
appropriate period for analysis because a 20-year analysis period 
reflects the maximum amount of time under which future activities and 
economic impacts associated with the designation can be reliably 
projected, given available data and information. The FEA quantifies 
economic impacts of Astragalus lentiginosus var. coachellae 
conservation efforts associated with the following categories of 
activity: (1) Residential, commercial, and industrial development; (2) 
water management and use; (3) transportation activities; (4) energy 
development; (5) sand and gravel mining; and (6) Tribal activities.
    The economic analysis includes high- and low-end estimates of 
incremental costs. Both estimates include the incremental impacts 
associated with addressing adverse modification in section 7 
consultation. The high-end estimate also includes project modification 
costs associated with development in the City of Desert Hot Springs and 
railroad upgrades not covered by the Coachella Valley MSHCP/NCCP, as 
well as potential administrative costs incurred by the Agua Caliente 
Band of Cahuilla Indians. These costs are only included in the high 
estimate because of uncertainty over whether Desert Hot Springs will 
develop within the 100-year floodplain and whether railroad upgrades 
are likely, and because a public comment submitted by the Agua Caliente 
Band of Cahuilla Indians suggests that development may not occur within 
proposed revised critical habitat. As a result, the low-end impacts 
consist solely of administrative costs, except those that may be 
incurred by the Agua Caliente Band of Cahuilla Indians (IEc 2013, p. 4-
2).
    Implementation of conservation activities for residential, 
commercial, and industrial development is the largest cost category in 
the high-end estimate of incremental impacts. All of these costs are 
projected to occur in the unoccupied portion of Unit 3, within the City 
of Desert Hot Springs. Proponents of transportation activities, such as 
road and bridge construction and maintenance, are likely to experience 
the next largest impacts after residential, commercial, and industrial 
development. No incremental project modification costs are estimated 
for water management activities. Although two water districts, 
Metropolitan Water District of Southern California and the Desert Water 
Agency, may experience incremental impacts for projects occurring in 
unoccupied, fluvial habitat, characteristics of potential projects and 
specific project modifications that could be recommended for projects 
are uncertain. Project modification costs therefore could not be 
estimated. The FEA does not estimate any incremental project 
modification costs for energy projects, because these projects are 
located within occupied habitat, where we cannot reasonably 
differentiate between actions that avoid jeopardy to the species and 
actions needed solely to avoid destruction or adverse modification of 
critical habitat, and because the construction and development of new 
wind energy facilities is a covered activity under the MSHCP/NCCP. No 
incremental project modification costs are anticipated for mining 
activities.
    The FEA also does not anticipate any incremental project 
modification costs on Agua Caliente Band of Cahuilla Indians lands 
because the proposed revised critical habitat on those lands is 
occupied habitat, where we cannot reasonably differentiate between 
actions that avoid jeopardy to the species and actions needed solely to 
avoid destruction or adverse modification of critical habitat. The 
Morongo Band of Mission Indians do not anticipate economic activity 
within proposed revised critical habitat on Morongo Band of Mission 
Indians lands, because these areas are located entirely within the 
floodplain; therefore, the FEA does not estimate any incremental 
project modification costs for Tribal activities. The total incremental 
impacts are estimated to be $270,000 to $880,000 ($24,000 to $77,000 
annualized) in present-value terms using a 7 percent discount rate over 
the next 20 years (2012 to 2032) in areas proposed as revised critical 
habitat (IEc 2012, pp. ES-2-ES-3, ES-7-ES-9).
    Our economic analysis did not identify any disproportionate costs 
that are likely to result from the designation. Consequently, the 
Secretary has determined not to exercise his discretion to exclude any 
areas from this designation of critical habitat for Astragalus 
lentiginosus var. coachellae based on economic impacts.
    A copy of the FEA with supporting documents is available at http://www.fws.gov/carlsbad/GIS/CFWOGIS.html, http://www.regulations.gov at 
Docket No. FWS-R8-ES-2011-0064, and at the Carlsbad Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT).

Exclusions Based on National Security Impacts

    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense (DOD) where a 
national security impact might exist. In preparing this final rule, we 
have determined that the lands meeting the definition of critical 
habitat for Astragalus lentiginosus var. coachellae are not owned or 
managed by the Department of Defense, and, therefore, we anticipate no 
impact on national security. Consequently, the Secretary is not 
exercising his discretion to exclude any areas from this final 
designation based on impacts on national security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether the 
landowners have developed any HCPs or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We 
also

[[Page 10471]]

consider any social impacts that might occur because of the 
designation.

Land and Resource Management Plans, Conservation Plans, or Agreements 
Based on Conservation Partnerships

    When we evaluate whether a current land management or conservation 
plan (HCPs as well as other types) provides adequate management or 
protection, we consider a variety of factors, including but not limited 
to, whether the plan is finalized; how it provides for the conservation 
of the essential physical or biological features; whether there is a 
reasonable expectation that the conservation management strategies and 
actions contained in a management plan will be implemented into the 
future; whether the conservation strategies in the plan are likely to 
be effective; and whether the plan contains a monitoring program or 
adaptive management to ensure that the conservation measures are 
effective and can be adapted in the future in response to new 
information.
    We believe that the Coachella Valley Multiple Species Habitat 
Conservation Plan and Natural Community Conservation Plan (Coachella 
Valley MSHCP/NCCP) provides adequate management or protection for the 
taxon, and, to continue and strengthen our conservation partnerships 
with the plan's participants and to foster additional partnerships, the 
Secretary is exercising his discretion to exclude lands covered by this 
plan that provide for the conservation of Astragalus lentiginosus var. 
coachellae. Details of our analysis for this plan are described below.

Exclusions Under Section 4(b)(2) of the Act--Coachella Valley MSHCP/
NCCP

    The Coachella Valley MSHCP/NCCP is a large-scale, 
multijurisdictional habitat conservation plan encompassing about 1.1 
million ac (445,156 ha) in the Coachella Valley of central Riverside 
County. The Coachella Valley MSHCP/NCCP is also a ``Subregional Plan'' 
under the State of California's Natural Community Conservation Planning 
(NCCP) Act, as amended. An additional 69,000 ac (27,923 ha) of tribal 
reservation lands distributed within the plan area boundary are not 
included in the Coachella Valley MSHCP/NCCP. The Coachella Valley 
MSHCP/NCCP addresses 27 listed and unlisted ``covered species,'' 
including Astragalus lentiginosus var. coachellae. On October 1, 2008, 
the Service issued a single incidental take permit (TE-104604-0) under 
section 10(a)(1)(B) of the Act to 19 permittees under the Coachella 
Valley MSHCP/NCCP for a period of 75 years. Participants in the 
Coachella Valley MSHCP/NCCP include eight cities (Cathedral City, 
Coachella, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs, 
and Rancho Mirage); the County of Riverside, including the Riverside 
County Flood Control and Water Conservation District, Riverside County 
Parks and Open Space District, and Riverside County Waste Management 
District; the Coachella Valley Association of Governments; Coachella 
Valley Water District; Imperial Irrigation District; California 
Department of Transportation; California State Parks; Coachella Valley 
Mountains Conservancy; and the Coachella Valley Conservation Commission 
(the created joint powers regional authority). The Coachella Valley 
MSHCP/NCCP was designed to establish a multiple-species habitat 
conservation program that minimizes and mitigates the expected loss of 
habitat and incidental take of covered species, including A. l. var. 
coachellae (USFWS 2008, pp. 1-207, and Appendix A, pp. 10-50).
    The permit covers incidental take resulting from habitat loss and 
disturbance associated with urban development and other proposed 
covered activities. These activities include public and private 
development within the plan area that requires discretionary and 
ministerial actions by permittees subject to consistency with the 
Coachella Valley MSHCP/NCCP policies. An associated Management and 
Monitoring Program is also included in the Coachella Valley MSHCP/NCCP 
and identifies specific management actions for the conservation of 
Astragalus lentiginosus var. coachellae.
    Approximately 36,398 ac (14,730 ha) of modeled habitat for 
Astragalus lentiginosus var. coachellae occurs in the Coachella Valley 
MSHCP/NCCP Plan Area (Coachella Valley MSHCP/NCCP 2008, p. 9-25). Under 
the Coachella Valley MSHCP/NCCP, approximately 15,706 ac (6,356 ha) of 
modeled A. l. var. coachellae habitat will be lost to development. To 
mitigate this loss, the Coachella Valley MSHCP/NCCP will preserve 7,176 
ac (2,904 ha) of modeled habitat for the taxon in perpetuity. Another 
4,497 ac (1,820 ha) are anticipated to be conserved through 
complementary and cooperative efforts by Federal and State agencies and 
nongovernmental organizations. Additionally, 7,707 ac (3,118 ha) of A. 
l. var. coachellae modeled habitat within the Plan Area were preserved 
prior to completion of the Coachella Valley MSHCP/NCCP (acres which 
coincidentally occur on three Coachella Valley fringe-toed lizard (Uma 
inornata) reserves in the Coachella Valley Preserve System). These 
lands and the 11,650 ac (4,715 ha) of lands yet to be conserved under 
the Coachella Valley MSHCP/NCCP will total 19,357 ac (7,833 ha) of A. 
l. var. coachellae modeled habitat within the Coachella Valley MSHCP/
NCCP Reserve System.
    As habitat areas are acquired under the Coachella Valley MSHCP/
NCCP, they are legally protected within the Reserve System and the 
direct impacts of development are precluded. All areas covered under 
the Coachella Valley MSHCP/NCCP that meet the definition of critical 
habitat for A. l. var. coachellae fall within the Conservation Areas of 
the HCP. The Conservation Areas of the Coachella Valley MSHCP/NCCP are 
predetermined areas that provide habitat for species covered under the 
plan; these areas are designed to conserve natural communities, 
ecological processes, and biological corridors and linkages between 
major habitat areas. The Coachella Valley MSHCP/NCCP Reserve System 
will be assembled from land conserved within these Conservation Areas. 
This protection, as well as implementation of the avoidance, 
minimization, and mitigation measures and management and monitoring 
programs identified in the Coachella Valley MSHCP/NCCP, will reduce 
impacts to this taxon compared to what would have occurred otherwise.
Benefits of Inclusion--Coachella Valley MSHCP/NCCP

Regulatory Benefits (Endangered Species Act)

    The principal benefit of including an area in a critical habitat 
designation is the requirement of Federal agencies to ensure actions 
they fund, authorize, or carry out are not likely to result in the 
destruction or adverse modification of any designated critical habitat, 
the regulatory standard of section 7(a)(2) of the Act under which 
consultation is completed. Federal agencies must consult with the 
Service on actions that may affect critical habitat and must avoid 
destroying or adversely modifying critical habitat. Federal agencies 
must also consult with us on actions that may affect a listed species 
and refrain from undertaking actions that are likely to jeopardize the 
continued existence of such species. The analysis of effects to 
critical habitat is a separate and different analysis from that of the 
effects to the species. Therefore, the difference in outcomes of these 
two analyses represents the regulatory benefit of critical habitat. The 
regulatory standards are different, as the jeopardy analysis

[[Page 10472]]

investigates the action's impact on the survival and recovery of the 
species, while the adverse modification analysis focuses on the 
action's effects on the designated habitat's contribution to 
conservation. This will, in many instances, lead to different results 
and different regulatory requirements. Thus, critical habitat 
designations may provide greater benefits to the recovery of a species 
than would listing alone.
    For some species (including Astragalus lentiginosus var. 
coachellae), and in some locations (in particular, those occupied by 
the taxon), the outcome of these analyses will be similar, because 
effects to habitat will often also result in effects to the species and 
it is often difficult or impossible to differentiate between actions 
that avoid jeopardy to the species and actions needed solely to avoid 
destruction or adverse modification of critical habitat. However, much 
of the land considered for exclusion from this critical habitat 
designation is not occupied by the taxon (areas supporting fluvial sand 
transport processes). In these areas, impacts to critical habitat will 
not result in direct impacts to A. l. var. coachellae plants. 
Therefore, the outcome of an adverse modification analysis in these 
areas would differ from the outcome of a jeopardy analysis.
    Critical habitat may provide a regulatory benefit for Astragalus 
lentiginosus var. coachellae when there is a Federal nexus present for 
a project that might adversely modify critical habitat. A Federal nexus 
generally exists where land is federally owned, or where actions 
proposed on non-Federal lands require a Federal permit or Federal 
funding. In the absence of a Federal nexus, the regulatory benefit 
provided through section 7 consultation under the Act does not exist. 
Any activities over which a Federal agency has discretionary 
involvement or control affecting designated critical habitat on Federal 
land would trigger a duty to consult under section 7. However, no 
Federal lands are covered under the Coachella Valley MSHCP/NCCP.
    The potential for a Federal nexus for activities proposed on non-
Federal lands varies widely and depends on the particular circumstances 
of each case. Nevertheless, because the breadth of potential Federal 
actions that may trigger a duty to consult under section 7 is quite 
broad, we cannot say with certainty that future development of, or 
activities on, non-Federal lands will always lack a Federal nexus. In 
some portions of the lands identified as critical habitat for 
Astragalus lentiginosus var. coachellae that are covered under the 
Coachella Valley MSHCP/NCCP, a Federal nexus seems possible despite the 
areas in question not being on Federal lands. The unoccupied fluvial 
sand transport areas of the essential habitat covered under the 
Coachella Valley MSHCP/NCCP may fall within the jurisdiction of the 
U.S. Army Corps of Engineers (Corps) pursuant to section 404 of the 
Clean Water Act. Therefore, we expect there will be a Federal nexus for 
projects in the fluvial sand transport areas, as projects that impact 
these areas may require Corps permits. Also, highway or railroad 
improvement projects on lands adjacent to Interstate Highway 10 or the 
Southern Pacific railway line that are covered by the Coachella Valley 
MSHCP/NCCP may have a Federal nexus via the U.S. Department of 
Transportation. Thus, designation of these areas as critical habitat 
for A. l. var. coachellae could provide a regulatory benefit. However, 
where there is no discernible Federal nexus on lands covered under the 
Coachella Valley MSHCP/NCCP that we've identified as critical habitat 
for A. l. var. coachellae, we consider the regulatory benefit of 
designation of those non-Federal lands to be small.
    If protections provided by critical habitat designation are 
redundant with protections already in place on lands identified as 
areas that meet the definition of critical habitat for Astragalus 
lentiginosus var. coachellae, the benefits of inclusion in critical 
habitat are reduced. All areas that meet the definition of critical 
habitat covered under the Coachella Valley MSHCP/NCCP fall within the 
Conservation Areas of the HCP. Within the Conservation Areas, 
protections afforded Astragalus lentiginosus var. coachellae and its 
habitat by the Coachella Valley MSHCP/NCCP include, for example, 
requiring permittees to comply with applicable avoidance, minimization, 
and mitigation measures and land-use adjacency guidelines (standards 
delineated for land uses adjacent to or within Conservation Areas 
necessary to avoid or minimize edge effects), and conservation of 
suitable habitat and those areas supporting the geomorphologic 
processes sustaining the sand formations in those areas (sand transport 
system) (Coachella Valley MSHCP/NCCP 2008, Section 4 and Section 
9.2.2).
    Protective measures required by the Coachella Valley MSHCP/NCCP for 
the conservation of Astragalus lentiginosus var. coachellae habitat in 
the Conservation Areas are similar to protections that we would require 
through consultation provisions under section 7(a)(2) of the Act for A. 
l. var. coachellae critical habitat. Adding another layer of regulatory 
protections by designating critical habitat on lands in the 
Conservation Areas of the Coachella Valley MSHCP/NCCP, therefore, will 
not likely add any protection for the taxon. In some rare cases, the 
amount or type of protection required by a consultation under section 
7(a)(2) of the Act to address impacts to critical habitat could differ 
from the protective measures provided by the Coachella Valley MSHCP/
NCCP; however, we do not know under what circumstances this would 
occur, if ever. For these reasons, we believe the protections provided 
by the Coachella Valley MSHCP/NCCP in the Conservation Areas 
substantially diminish any regulatory benefits of designating critical 
habitat on these lands.

Educational Benefit

    Designating critical habitat also can be beneficial because the 
process of proposing critical habitat provides the opportunity for peer 
review and public comment on lands we propose to designate as critical 
habitat, our criteria used to identify those lands, potential impacts 
from the proposal, and information on the taxon itself. The designation 
of critical habitat may generally provide previously unavailable 
information to the public. Public education regarding the potential 
conservation value of an area may also help focus conservation and 
management efforts on areas of high conservation value for certain 
species. Information about Astragalus lentiginosus var. coachellae and 
its habitat that reaches a wide audience, including parties concerned 
about and engaged in conservation activities, is valuable because the 
public may not be aware of documented (or undocumented) A. l. var. 
coachellae occurrences and unoccupied areas supporting sand transport 
processes that have not been conserved or are not being managed.
    However, the educational benefits of designating critical habitat 
for Astragalus lentiginosus var. coachellae are small and largely 
redundant to those derived through conservation efforts currently being 
implemented in the private and permittee-owned or controlled lands 
covered under the Coachella Valley MSHCP/NCCP. As described above, the 
process of developing the Coachella Valley MSHCP/NCCP has involved 
several partners including (but not limited to) the eight participating 
local jurisdictions, Riverside County,

[[Page 10473]]

California Department of Fish and Game, and Federal agencies. The 
educational benefits of critical habitat designation derived through 
informing Coachella Valley MSHCP/NCCP partners and other members of the 
public of areas important for the long-term conservation of A. l. var. 
coachellae have already been and continue to be achieved through 
development and implementation of the Coachella Valley MSHCP/NCCP. We, 
therefore, believe that the educational benefits of designating 
critical habitat for A. l. var. coachellae on lands covered under the 
Coachella Valley MSHCP/NCCP are small.
    Educational benefits of designating critical habitat for Astragalus 
lentiginosus var. coachellae are also largely redundant to those 
derived through the publication of the previous proposed and final 
critical habitat rules for A. l. var. coachellae. These documents 
discuss A. l. var. coachellae biology and habitat requirements, the 
location of areas containing the physical or biological features 
essential to the conservation of the taxon, and the importance of areas 
supporting sand transport processes needed to maintain suitable habitat 
for the taxon. Because this information was made available to the 
public in these documents, we believe there is little educational 
benefit of designating critical habitat for A. l. var. coachellae.

Regulatory Benefit (Other State, Local, and Federal Laws)

    The designation of critical habitat for some species may also 
strengthen or reinforce some of the provisions in other State and 
Federal laws, such as the California Environmental Quality Act (CEQA). 
These laws analyze the potential for projects to significantly affect 
the environment. To date, the local jurisdictions have not required 
additional measures associated with critical habitat for any species in 
their discretionary approval processes (for example, pursuant to CEQA), 
and are unlikely to do so in the future. This potential benefit is, 
therefore, negligible in the Coachella Valley.
    In summary, we believe that the regulatory benefit through section 
7(a)(2) of the Act of designating critical habitat is small on non-
Federal lands covered under the Coachella Valley MSHCP/NCCP and 
occupied by Astragalus lentiginosus var. coachellae because the 
likelihood of a future Federal nexus in these areas is small, and 
because the existing protections afforded the taxon and its habitat by 
the Coachella Valley MSHCP/NCCP likely diminish any regulatory benefits 
that might be gained. The regulatory benefit of designation is likely 
higher in unoccupied fluvial sand transport areas, due to the greater 
possibility for a Federal nexus (via permits required for impacts to 
``Waters of the United States'' by the Corps). However, the benefits of 
inclusion are similarly diminished in the fluvial sand transport areas 
by the protections provided by the Coachella Valley MSHCP/NCCP. 
Additionally, we believe the educational benefits of designating 
critical habitat for A. l. var. coachellae on lands covered by the 
Coachella Valley MSHCP/NCCP are small due to stakeholder involvement in 
the design and implementation of the Coachella Valley MSHCP/NCCP and 
publication of relevant information in the previous proposed and final 
critical habitat rules in 2004 and 2005. There are no potential 
ancillary benefits under other laws that would result from designation 
of non-Federal lands in the Coachella Valley.
Benefits of Exclusion--Coachella Valley MSHCP/NCCP
    We believe conservation benefits would be realized by forgoing 
designation of critical habitat for Astragalus lentiginosus var. 
coachellae on lands covered by the Coachella Valley MSHCP/NCCP, 
including: (1) Continuance and strengthening of our effective working 
relationships with all Coachella Valley MSHCP/NCCP jurisdictions and 
stakeholders to promote conservation of the A. l. var. coachellae, its 
habitat, and 26 other taxa covered by the HCP and their habitat; (2) 
allowance for continued meaningful collaboration and cooperation in 
working toward protecting and recovering this taxon and the many other 
taxa covered by the HCP, including conservation benefits that might not 
otherwise occur; (3) encouragement for local jurisdictions to fully 
participate in the Coachella Valley MSHCP/NCCP; and (4) encouragement 
of additional HCP and other conservation plan development in the future 
on other private lands for this and other federally listed and 
sensitive taxa.
    In the case of Astragalus lentiginosus var. coachellae in the 
Coachella Valley, the partnership and commitment by the permittees of 
the Coachella Valley MSHCP/NCCP resulted in lands being conserved and 
managed for the long term that will contribute to the recovery of the 
taxon.
    We developed a close partnership with the permittees of the 
Coachella Valley MSHCP/NCCP through the development of the HCP, which 
incorporates protections (conserved lands) and management for 
Astragalus lentiginosus var. coachellae, its habitat, the fluvial sand 
transport areas, and the physical or biological features essential to 
the conservation of this taxon. Additionally, many landowners perceive 
critical habitat as an unfair and unnecessary regulatory burden given 
the expense and time involved in developing and implementing complex 
regional and jurisdiction-wide HCPs, such as the Coachella Valley 
MSHCP/NCCP (as discussed further in Comment 15 below in the Summary of 
Comments and Recommendations section of this rule). Exclusion of 
Coachella Valley MSHCP/NCCP lands could help preserve the partnerships 
we developed with the County of Riverside, Coachella Valley Association 
of Governments, and other local jurisdictions in the development of the 
HCP, foster future partnerships and development of future HCPs, and 
encourage the establishment of future conservation and management of 
habitat for A. l. var. coachellae and other sensitive taxa.
    The Coachella Valley MSHCP/NCCP provides substantial protection and 
management for Astragalus lentiginosus var. coachellae, the fluvial 
sand transport areas, and the physical or biological features essential 
to the conservation of the taxon. It also addresses conservation issues 
from a coordinated, integrated perspective rather than a piecemeal, 
project-by-project approach (as would occur under section 7 of the Act 
or through smaller HCPs), thus resulting in coordinated landscape-scale 
conservation that can contribute to genetic diversity by preserving 
covered species populations, habitat, and interconnected linkage areas 
that support recovery of A. l. var. coachellae and other listed taxa. 
Also, because impacts to plant species do not require an incidental 
take permit, protections that plants receive under HCPs related to 
covered activities without a Federal nexus are benefits that most 
likely would not be realized otherwise. Additionally, in order for the 
conservation anticipated by the Coachella Valley MSHCP/NCCP to be fully 
realized, it is vital that permittees continue to work with the Service 
during the implementation process to ensure the goals of the plan are 
met despite unanticipated issues that are likely to arise given the 
scope and complexity of the plan. Therefore, it is important that we 
encourage full participation in such plans and encourage voluntary 
coverage of listed plant taxa in such plans.
    In summary, we believe excluding land covered by the Coachella 
Valley MSHCP/NCCP from critical habitat will

[[Page 10474]]

provide the significant benefit of maintaining existing regional HCP 
partnerships and fostering new ones.
Weighing Benefits of Exclusion Against Benefits of Inclusion--Coachella 
Valley MSHCP/NCCP
    We reviewed and evaluated the exclusion of approximately 15,140 ac 
(6,127 ha) of land within the boundaries of the Coachella Valley MSHCP/
NCCP from our revised designation of critical habitat, and we 
determined the benefits of excluding these lands outweigh the benefits 
of including them. The regulatory benefits of including the portion of 
these lands occupied by Astragalus lentiginosus var. coachellae in the 
designation are small because of the unlikelihood of a Federal nexus. 
The regulatory benefits of including the portion of these lands not 
occupied by the taxon (areas supporting fluvial sand transport 
processes) are greater due to the possibility of a Federal nexus 
through the Corps. However, these benefits are reduced by the existence 
of protections provided through the Coachella Valley MSHCP/NCCP that 
are mostly redundant to the regulatory protections that would be 
achieved through designation of critical habitat. The educational 
benefits of including lands covered under the Coachella Valley MSHCP/
NCCP are small in occupied areas and unoccupied areas.
    We believe the benefits of excluding lands covered by the Coachella 
Valley MSHCP/NCCP from critical habitat are more significant. Exclusion 
of these lands from critical habitat will help preserve the 
partnerships we have developed with local jurisdictions and project 
proponents through the development and ongoing implementation of the 
Coachella Valley MSHCP/NCCP and aid in fostering future partnerships 
for the benefit of listed species. Designation of lands covered by the 
Coachella Valley MSHCP/NCCP may discourage other partners from seeking, 
amending, or completing HCCP/NCCP plans that cover Astragalus 
lentiginosus var. coachellae and other listed taxa. Designation of 
critical habitat does not require that management or recovery actions 
take place on the lands included in the designation. The Coachella 
Valley MSHCP/NCCP, however, will provide for significant conservation 
and management of A. l. var. coachellae and its habitat and help 
achieve recovery of this species through habitat enhancement and 
restoration, functional connections to adjoining habitat, and 
monitoring efforts. Additional HCPs or other management plans 
potentially fostered by this exclusion would also help to recover this 
and other federally listed species. Therefore, in consideration of the 
relevant impact to current and future partnerships, as summarized in 
the Benefits of Exclusion--Coachella Valley MSHCP/NCCP section above, 
we determined the significant benefits of exclusion outweigh the 
benefits of critical habitat designation.
Exclusion Will Not Result in Extinction of the Species--Coachella 
Valley MSHCP/NCCP
    We determined that the exclusion of 15,140 ac (6,127 ha) of land 
within the boundaries of the Coachella Valley MSHCP/NCCP from the 
designation of critical habitat for Astragalus lentiginosus var. 
coachellae will not result in extinction of the taxon. Protections 
afforded the taxon and its habitat by the Coachella Valley MSHCP/NCCP 
provide assurances that the taxon will not go extinct as a result of 
excluding these lands from the critical habitat designation. The 
jeopardy standard of section 7 of the Act will also provide protection 
in occupied areas when there is a Federal nexus. Therefore, based on 
the above discussion, the Secretary is exercising his discretion to 
exclude 15,140 ac (6,127 ha) of land within the boundaries of the 
Coachella Valley MSHCP/NCCP from this final critical habitat 
designation.

Exclusions Under Section 4(b)(2) of the Act--Tribal Lands

    In accordance with the Secretarial Order 3206, ``American Indian 
Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act'' (June 5, 1997); 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 relevant provision of the Departmental Manual of the Department of 
the Interior (512 DM 2), we believe that fish, wildlife, and other 
natural resources on tribal lands are better managed under tribal 
authorities, policies, and programs than through Federal regulation 
wherever possible and practicable. Based on this philosophy, we believe 
that, in most cases, designation of tribal lands as critical habitat 
provides very little additional benefit to federally listed species. 
Conversely, such designation is often viewed by tribes as an 
unwarranted and unwanted intrusion into tribal self-governance, thus 
compromising the government-to-government relationship essential to 
achieving our mutual goals of managing for healthy ecosystems upon 
which the viability of threatened and endangered species populations 
depend. We take into consideration our partnerships and existing 
conservation actions that tribes have implemented or are currently 
implementing when conducting our analysis under section 4(b)(2) of the 
Act in this final revised critical habitat designation. We also take 
into consideration conservation actions that are planned as part of our 
ongoing commitment to the government-to-government relationship with 
tribes. Section 4(b)(2) of the Act allows the Secretary to exclude 
areas from critical habitat based on economic impacts, impacts to 
National security, or other relevant impacts if the Secretary 
determines that the benefits of such exclusion outweigh the benefits of 
designating the area as critical habitat. However, an exclusion cannot 
occur if it will result in the extinction of the species concerned.
    We determined approximately 893 ac (361 ha) of lands owned by or 
under the jurisdiction of two Tribes meet the definition of critical 
habitat under the Act. These tribal lands are found within Units 1 and 
2, and are owned by or under the jurisdiction of the Morongo Band of 
Mission Indians and the Agua Caliente Band of Cahuilla Indians. In 
making our final decision with regard to these tribal lands, we 
considered the factors listed above. Under section 4(b)(2) of the Act, 
the Secretary is exercising his discretion to exclude approximately 893 
ac (361 ha) of land comprised of all reservation lands from this final 
revised critical habitat designation (this is all of the tribal land 
proposed as critical habitat for A. l. var. coachellae). As described 
in our analysis below, this conclusion was reached after considering 
the relevant impacts of specifying these areas as critical habitat.
    For our 4(b)(2) balancing analysis we considered our partnership 
with the Agua Caliente Band of Cahuilla Indians and analyzed the 
benefits of including and excluding those lands within the Agua 
Caliente Band of Cahuilla Indians Reservation boundary that meet the 
definition of critical habitat. The Agua Caliente Indian Reservation 
consists of approximately 31,500 acres of land in a checkerboard of 
parcels found primarily in the City of Palm Springs, and the Cities of 
Cathedral City and Rancho Mirage, and unincorporated Riverside County, 
California. This area includes approximately 579 ac (234 ha) that meet 
the definition of Astragalus lentiginosus var. coachellae critical 
habitat in Unit 2, all of which are within the Agua Caliente Band of 
Cahuilla Indians

[[Page 10475]]

Reservation boundary. The Agua Caliente Band of Cahuilla Indians has 
worked with our office to develop a draft HCP that includes A. l. var. 
coachellae as a covered taxon, and includes conservation measures for 
the taxon and its habitat. Although the Agua Caliente Band of Cahuilla 
Indians notified us in a letter dated October 6, 2010, that they 
suspended their pursuit of a Section 10(a) permit for their draft HCP 
(ACBCI 2010a, p. 1), they consider the draft plan to be a Tribal-
approved, final document and implement it as such for land-use planning 
on all Reservation lands. The Tribe is continuing to implement the 
conservation strategies outlined in the document, and has expressed 
their intention to continue to do so (Park 2011, p. 1; pers. com. J. 
McBride, 2012) and protect and manage natural resources within their 
jurisdiction (ACBCI 2010b, p. ES-1; Park 2011, p. 1).
    The Tribe is implementing numerous provisions aimed specifically at 
protecting Astragalus lentiginosus var. coachellae habitat (ACBCI 
2010b, pp. 2-3, 4-32, 4-53, 4-67, 4-106)), including in areas meeting 
the definition of critical habitat for the taxon. Conservation 
objectives for A. l. var. coachellae include avoidance, minimization, 
and/or mitigation of impacts to active or ephemeral sand fields within 
the Section 6 Target Acquisition Area (most of the Agua Caliente Band 
of Cahuilla Indians lands that meet the definition of critical habitat 
for A. l. var. coachellae are within the Section 6 (Township 4 South, 
Range 5 East) Target Acquisition Area, which contains the sand 
formations that form the basis of A. l. var. coachellae habitat (see 
Primary Constituent Element for Astragalus lentiginosus var. coachellae 
section above)). Within the Section 6 Target Acquisition Area, 
acquisition or dedication of lands to the Habitat Preserve and 
management in perpetuity is targeted to occur for mitigation of impacts 
to covered species (including A. l. var. coachellae). The Tribe 
anticipates conservation of at least 177 acres within the Section 6 
Target Acquisition Area, and acquisition of a minimum of 640 acres of 
habitat for conservation in other areas that are potentially suitable 
to support the taxon. We anticipate that these provisions and others 
aimed at avoiding direct and indirect impacts to the taxon and 
avoiding, minimizing, or mitigating impacts to its habitat, sand 
sources, and sand transport will play an important role in conserving 
the taxon and preventing adverse alteration of A. l. var. coachellae 
habitat.
    We determined approximately 313 ac (127 ha) of lands owned by or 
under the jurisdiction of the Morongo Band of Mission Indians meet the 
definition of critical habitat under the Act for Astragalus 
lentiginosus var. coachellae. For our section 4(b)(2) balancing 
analysis we considered our partnership with the Tribe and analyzed the 
benefits of including and excluding those lands within the Morongo Band 
of Mission Indians Reservation boundary that meet the definition of 
critical habitat.
    The Morongo Band of Mission Indians (formerly the Morongo Band of 
Cahuilla Mission Indians of the Morongo Reservation) Reservation 
consists of over 35,000 ac of land on the western end of the Coachella 
Valley. This area includes approximately 313 ac (12 ha) that meet the 
definition of Astragalus lentiginosus var. coachellae critical habitat 
in Unit 1. Almost all (97 percent) of these Tribal lands identified as 
essential for the conservation of A. l. var. coachellae are fluvial 
sand transport areas not occupied by the taxon. The Morongo Band of 
Mission Indians has not completed a management plan that specifically 
provides for conservation of processes contributing to the maintenance 
of A. l. var. coachellae habitat. However, the Tribe has land 
designations and management policies and practices that contribute to 
the conservation of the fluvial sand transport areas identified as 
essential habitat for A. l. var. coachellae (Martin 2011, pp. 1-2).
    For example, human impacts will be limited in the areas meeting the 
definition of critical habitat due to their significant value to the 
Tribe in their natural state, and because they are subject to natural 
hazards, minimizing their development value. Also, the Morongo Band of 
Mission Indians have instituted an ordinance limiting recreational OHV 
use to areas where such activities will not impact fluvial sand 
transport or habitat areas. Additionally, the Morongo Environmental 
Protection Department--Resource Conservation program has implemented 
nonnative species removal projects throughout Morongo Band of Mission 
Indians lands with consultation from the Inland Empire Resource 
Conservation District and the Natural Resources Conservation Service 
(U.S. Department of Agriculture). Over 65 percent of the Morongo Band 
of Mission Indians lands are listed as ``Open Space/Conservation 
element areas'' in the Morongo Band of Mission Indians General Plan, 
including active ephemeral washes that contribute to the San Gorgonio 
River fluvial sand transport system and large areas unobstructed by 
development, that contain suitable habitat with intact wind and 
depositional regimes. We anticipate that the Morongo Band of Mission 
Indians' dedication to maintaining natural resources and minimizing 
impacts to those resources on their lands will contribute greatly to 
the conservation of A. l. var. coachellae, its habitat, and sand 
transport processes on the Morongo Band of Mission Indians Reservation.
    Most of the lands that meet the definition of critical habitat 
within the Morongo Band of Mission Indians Reservation are areas 
supporting the fluvial transport of sand carried by the San Gorgonio 
River into areas occupied by major occurrences of Astragalus 
lentiginosus var. coachellae. Lands that meet the definition of 
critical habitat within the Agua Caliente Indian Reservation are all 
areas with sand formations that form the basis of suitable habitat for 
A. l. var. coachellae. Activities on lands that meet the definition of 
critical habitat within these tribal reservations could affect the 
taxon directly and also affect sand transport processes. Therefore, we 
want to foster strong partnerships with these Tribes and work 
cooperatively toward conservation of A. l. var. coachellae.
Benefits of Inclusion--Tribal Lands

Regulatory Benefits (Endangered Species Act)

    The principal benefit of including an area in a critical habitat 
designation is the requirement of Federal agencies to ensure actions 
they fund, authorize, or carry out are not likely to result in the 
destruction or adverse modification of any designated critical habitat, 
the regulatory standard of section 7(a)(2) of the Act under which 
consultation is completed. Federal agencies must consult with the 
Service on actions that may affect critical habitat and must avoid 
destroying or adversely modifying critical habitat. Federal agencies 
must also consult with us on actions that may affect a listed species 
and refrain from undertaking actions that are likely to jeopardize the 
continued existence of such species. The analysis of effects to 
critical habitat is a separate and different analysis from that of the 
effects to the species. Therefore, the difference in outcomes of these 
two analyses represents the regulatory benefit of critical habitat. The 
regulatory standards are different, as the jeopardy analysis 
investigates the action's impact on the survival and recovery of the 
species, while the adverse modification analysis focuses on the 
action's effects on the designated habitat's contribution to

[[Page 10476]]

conservation. This will, in many instances, lead to different results 
and different regulatory requirements. Thus, critical habitat 
designations may provide greater benefits to the recovery of a species 
than would listing alone, especially in instances when critical habitat 
has been designated where the species does not occur.
    Critical habitat may provide a regulatory benefit for Astragalus 
lentiginosus var. coachellae when there is a Federal nexus present for 
a project that might adversely modify critical habitat. On tribal 
reservations there is a Federal nexus through the Bureau of Indian 
Affairs (BIA) for projects that could adversely modify critical 
habitat. Therefore, there may be a regulatory benefit of including the 
tribal lands in the designation, as some projects on tribal lands 
identified as essential habitat within Units 1 and 2 may require 
consultation with the Service.
    However, if protections provided by critical habitat are redundant 
with protections already in place, the benefits of inclusion in 
critical habitat are reduced. As discussed above, although the Agua 
Caliente Band of Cahuilla Indians are no longer pursuing a Section 
10(a) permit for their draft HCP (ACBCI 2010a, p. 1), the Tribe is 
continuing to implement the conservation strategies outlined in the 
document, and plans to continue doing so (Park 2011, p. 1; pers. com. 
J. McBride, 2012). The protections afforded sand transport processes 
and Astragalus lentiginosus var. coachellae habitat by these 
conservation strategies provide for avoidance, minimization, and 
mitigation of impacts to A. l. var. coachellae habitat, and habitat 
conservation and management (see above discussion of conservation 
objectives on Agua Caliente Band of Cahuilla Indians lands for more 
detail). Morongo Band of Mission Indians also provides protection for 
sand transport processes and A. l. var. coachellae habitat through 
Tribal ordinances, management activities, protections provided in the 
Tribe's General Plan, and the fact that the Tribe considers Tribal 
lands meeting the definition of critical habitat to be of significant 
value in their natural state. The regulatory benefits of designating 
critical habitat for A. l. var. coachellae on Agua Caliente Band of 
Cahuilla Indians and Morongo Band of Mission Indians lands are reduced 
by these protections, which are to some extent redundant to the 
regulatory protections provided by critical habitat designation. We 
expect that the avoidance and minimization of impacts to, and 
conservation of, A. l. var. coachellae habitat that would likely result 
from consultation under section 7 of the Act on designated Tribal lands 
where there is a Federal nexus would be similar to the protections 
already put in place by the Tribes. Therefore, we anticipate the 
regulatory benefit of including the tribal lands in the designation to 
be small.

Educational Benefit

    Designating critical habitat also can be beneficial because the 
process of proposing critical habitat provides the opportunity for peer 
review and public comment on lands we propose to designate as critical 
habitat, our criteria used to identify those lands, potential impacts 
from the proposal, and information on the taxon itself. We believe the 
designation of critical habitat may generally provide previously 
unavailable information to the public. Public education regarding the 
potential conservation value of an area may also help focus 
conservation and management efforts on areas of high conservation value 
for certain species. Information about Astragalus lentiginosus var. 
coachellae and its habitat that reaches a wide audience, including 
parties concerned about and engaged in conservation activities, is 
valuable because the public may not be aware of documented (or 
undocumented) A. l. var. coachellae occurrences and unoccupied areas 
supporting sand transport processes that have not been conserved or are 
not being managed.
    Due to the existence of survey data and development of the Agua 
Caliente Band of Cahuilla Indians' draft HCP, stakeholders in the 
region are likely aware of the existence of A. l. var. coachellae on 
the portions of Agua Caliente Band of Cahuilla Indians lands proposed 
as critical habitat and the importance of these areas to the 
conservation of the taxon. Morongo Band of Mission Indians lands in 
Unit 1 consist entirely of areas not occupied by A. l. var. coachellae 
that support fluvial sand transport processes crucial to maintaining 
the sand formations in Unit 1 upon which the taxon depends. During the 
development of the proposed revised critical habitat rule, we met with 
representatives from the Morongo Band of Mission Indians and the BIA to 
inform them of the proposal. As a result of this meeting and further 
interactions with tribal representatives and the BIA, we believe the 
importance of the fluvial sand transport areas on Morongo Band of 
Mission Indians lands to the conservation of A. l. var. coachellae has 
been amply communicated to those with the most direct influence over 
the management of these areas. The public and local stakeholders have 
also been made aware of the importance of these areas to A. l. var. 
coachellae conservation through the development and implementation of 
the Coachella Valley MSHCP/NCCP. We, therefore, believe there is no 
significant educational benefit to including Tribal lands in the 
designation.
    Educational benefits of designating critical habitat for Astragalus 
lentiginosus var. coachellae are also largely redundant to those 
derived through the publication of the previous proposed and final 
critical habitat rules for A. l. var. coachellae. These documents 
discuss A. l. var. coachellae biology and habitat requirements, the 
location of areas containing the physical or biological features 
essential to the conservation of the taxon, and the importance of areas 
supporting sand transport processes needed to maintain suitable habitat 
for the taxon. Because this information was made available to the 
public in these documents, we believe there is little educational 
benefit of designating critical habitat for A. l. var. coachellae.

Regulatory Benefit (Other State, Local, and Federal Laws)

    The designation of critical habitat for some species may also 
strengthen or reinforce some of the provisions in other State and 
Federal laws, such as the California Environmental Quality Act (CEQA). 
These laws analyze the potential for projects to significantly affect 
the environment. To date, the local jurisdictions have not required 
additional measures associated with critical habitat in their 
discretionary approval processes (for example, pursuant to the 
California Environmental Quality Act), and are unlikely to do so in the 
future. This potential benefit is, therefore, negligible in the 
Coachella Valley.
    In summary, we believe there would likely only be a minimal 
regulatory benefit of Astragalus lentiginosus var. coachellae critical 
habitat designation on Agua Caliente Band of Cahuilla Indians and 
Morongo Band of Mission Indians lands, and no significant educational 
benefits.
Benefits of Exclusion--Tribal Lands
    We believe significant benefits would be realized by forgoing 
designation of critical habitat on reservation lands managed by the 
Agua Caliente Band of Cahuilla Indians and the Morongo Band of Mission 
Indians. These benefits include:
    (1) Continuance and strengthening of our effective working 
relationships with all tribes to promote conservation of

[[Page 10477]]

Astragalus lentiginosus var. coachellae and its habitat;
    (2) Allowance for continued meaningful collaboration and 
cooperation in working toward recovering this species, including 
conservation benefits that might not otherwise occur; and
    (3) Encouragement of this and other tribes to complete management 
plans for this and other federally listed and sensitive species and 
habitats, and engage in collaboration and cooperation with the Service 
and other organizations and individuals interested in conservation of 
the taxon, its habitat, and other biota of mutual interest.
    We believe that fish, wildlife, and other natural resources on 
tribal lands are better managed under tribal authorities, policies, and 
programs than through Federal regulation wherever possible and 
practicable. We are committed to ongoing meaningful collaboration and 
cooperation with all the affected tribes. For land on the Morongo Band 
of Mission Indians Reservation, which is not currently covered by an 
HCP, we will continue to work with BIA and the Tribe to develop species 
and habitat management plans to promote Astragalus lentiginosus var. 
coachellae conservation. For land on the Agua Caliente Band of Cahuilla 
Indians Reservation, where development and natural resources are being 
managed in accordance with the Tribe's conservation strategies, which 
include protections for A. l. var. coachellae, we will continue to work 
with the Tribe as they implement these strategies.
    Critical habitat designation is often viewed by tribes as an 
unwarranted and unwanted intrusion into tribal self-governance, thus 
compromising the government-to-government relationship essential to 
achieving our mutual goals of managing for healthy ecosystems upon 
which the viability of threatened and endangered species populations 
depend. For example, in comments submitted during the public comment 
periods, the Morongo Band of Mission Indians, the Agua Caliente Band of 
Cahuilla Indians, and the U.S. Bureau of Indian Affairs indicated 
designation of critical habitat for Astragalus lentiginosus var. 
coachellae on tribal lands would negatively impact tribal relations. 
Both affected tribes submitted comments indicating they were opposed to 
critical habitat designation or believed their lands should be 
excluded. Exclusion of tribal reservation lands from critical habitat 
will help preserve the partnerships we have developed, reinforce those 
relationships we are building with tribes, and foster future 
partnerships and development of future management plans. Therefore, we 
believe excluding tribal reservation lands from critical habitat 
provides the significant benefit of maintaining and strengthening 
existing conservation partnerships and fostering new ones.
Weighing Benefits of Exclusion Against Benefits of Inclusion--Tribal 
Lands
    We reviewed and evaluated the benefits of inclusion and the 
benefits of exclusion of Agua Caliente Band of Cahuilla Indians 
reservation lands and Morongo Band of Mission Indians reservation lands 
as critical habitat for Astragalus lentiginosus var. coachellae. 
Including these areas in the critical habitat designation for A. l. 
var. coachellae may provide some additional protection under section 
7(a)(2) of the Act when there is a Federal nexus, although we expect 
any benefits to be small, because they would be at least partially 
redundant to existing protections provided by the Tribes. We do not 
anticipate educational benefits or ancillary regulatory benefit from 
other laws such as CEQA from designating these areas as critical 
habitat.
    The benefits of excluding Agua Caliente Band of Cahuilla Indians 
reservation lands and Morongo Band of Mission Indians reservation lands 
from critical habitat are significant. Exclusion of these lands from 
critical habitat will help preserve the partnerships we have developed 
and reinforce those we are building with the Tribes, and exclusion will 
foster future partnerships and development of management plans. As 
discussed above, both Tribes are implementing measures that further the 
conservation of Astragalus lentiginosus var. coachellae habitat and 
land supporting sand transport processes needed to maintain that 
habitat. Damaging our partnerships with the Tribes could have the 
effect of dissuading the Tribes from continuing these conservation 
efforts. Agua Caliente Band of Cahuilla Indians, Morongo Band of 
Mission Indians, and BIA emphasized through comment letters provided 
during the public comment period their belief that designation of 
critical habitat on tribal lands undermines tribal sovereign 
governmental authority and interferes with the cooperative government-
to-government trust relationship between the tribes and the United 
States. We have excluded tribal lands from previous critical habitat 
designations, which has provided the benefit of strengthening our 
partnerships with tribal interests in the past, and we are committed to 
working with our tribal partners to further the conservation of 
Astragalus lentiginosus var. coachellae and other endangered and 
threatened species. Therefore, in consideration of the relevant impact 
to our government-to-government relationship with tribes and our 
current and future conservation partnerships, we determined the 
significant benefits of exclusion outweigh the benefits of critical 
habitat designation.
    In summary, we find that the exclusion of Agua Caliente Band of 
Cahuilla Indians and Morongo Band of Mission Indians reservation lands 
from this final critical habitat designation will preserve our 
partnerships with tribes and foster future dialog and cooperative 
actions as well as development of habitat management plans. These 
partnership benefits are significant and outweigh the potential 
regulatory benefits and any small educational benefits of including 
these portions of Unit 1 and Unit 2 in critical habitat for Astragalus 
lentiginosus var. coachellae.
Exclusion Will Not Result in Extinction of the Species--Tribal Lands
    We determined that the exclusion of 893 ac (361 ha) of Agua 
Caliente Band of Cahuilla Indians and Morongo Band of Mission Indians 
reservation land from the revised designation of Astragalus 
lentiginosus var. coachellae critical habitat will not result in 
extinction of the taxon for the following reasons. First, the jeopardy 
standard of section 7 of the Act and routine implementation of 
conservation measures through the section 7 process due to occupancy of 
Astragalus lentiginosus var. coachellae will provide protection to the 
taxon on Agua Caliente Band of Cahuilla Indians and Morongo Band of 
Mission Indians lands occupied by the taxon where there is a Federal 
nexus. Also, on the Morongo Band of Mission Indians lands, most of 
which support fluvial sand transport processes, the Tribe's intention 
to maintain the areas in their natural state will help ensure the 
movement of sand into occupied areas will continue unimpeded. 
Additionally, both Tribes provide protection for the taxon, its 
habitat, and the processes supporting its habitat via the avenues of 
conservation discussed above. Therefore, based on the above discussion, 
the Secretary is exercising his discretion to exclude approximately 893 
ac (361 ha) of Agua Caliente Band of Cahuilla Indians and Morongo Band 
of Mission Indians reservation land from this revised critical habitat 
designation.

[[Page 10478]]

Summary of Comments and Recommendations

    We requested comments or information from the public on the 
proposed revised designation of critical habitat for Astragalus 
lentiginosus var. coachellae during two comment periods. We also 
contacted appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties and invited them to comment 
on the proposed revised rule and draft economic analysis during these 
comment periods. The first comment period, associated with the 
publication of the proposed revised rule (76 FR 53224), opened on 
August 25, 2011, and closed on October 24, 2011. The Service published 
a notice announcing the publication of the proposed revised critical 
habitat designation in The Press-Enterprise on September 2, 2011. We 
also requested comments on the proposed revised critical habitat 
designation and associated draft economic analysis during a comment 
period that opened May 16, 2012, and closed on June 15, 2012 (a notice 
announcing the availability of the draft economic analysis for the 
proposed revised critical habitat designation was published in the 
Federal Register on May 16, 2012 (77 FR 28846)). We received one 
request for a public hearing. The public hearing was conducted on May 
31, 2012, in Palm Springs, California. No comments were received during 
the public hearing.
    During the first comment period, we received 17 comment letters 
directly addressing the proposed revised critical habitat designation. 
During the second comment period, we received three comment letters 
addressing the proposed revised critical habitat designation or the 
draft economic analysis. All substantive information provided during 
comment periods has either been incorporated directly into this 
designation or addressed below. Comments received were grouped into 
five general issues specifically relating to the proposed revised 
critical habitat designation for Astragalus lentiginosus var. 
coachellae and are addressed in the following summary and incorporated 
into the final rule as appropriate.
Peer Review
    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from two experts in plant 
biology and one expert in the geomorphology of the Coachella Valley, 
all of whom are knowledgeable individuals with scientific expertise 
that included familiarity with the geographic region in which 
Astragalus lentiginosus var. coachellae occurs and the geological 
processes that sustain its habitat. We received responses from two peer 
reviewers.
    We reviewed all comments received from the two peer reviewers for 
substantive issues and new information regarding critical habitat for 
Astragalus lentiginosus var. coachellae. In general, the peer reviewers 
supported the methods used to determine the proposed revised critical 
habitat boundaries, but disagreed with our decision not to propose the 
hills and mountains where sediment is generated via water erosion, and 
disagreed with the potential for any exclusions in the final 
designation. The peer reviewers also provided additional information, 
clarification, and suggestions to improve the final critical habitat 
rule. Peer reviewer comments, additional information, clarification, 
and suggestions are addressed in the following summary and incorporated 
into the final rule as appropriate.
Peer Reviewer Comments
    Comment 1: One peer reviewer expressed strong support for the geo-
biological approach we used to identify critical habitat for Astragalus 
lentiginosus var. coachellae.
    Another peer reviewer expressed support of our use of modeled 
habitat to identify critical habitat for Astragalus lentiginosus var. 
coachellae.
    Response to Comment 1: We appreciate the peer reviewers' comments. 
We believe the methods used to produce the revised critical habitat 
designation are well-supported and both peer reviewers generally agreed 
on the validity of our methods.
    Comment 2: One peer reviewer pointed out that there may be higher 
quality GIS data available now than were available at the time the 
model was generated, and that there might be relevant GIS data 
available now that did not exist or was not accessible when the model 
was generated. The peer reviewer stated that the modeled habitat we 
used for this analysis ``should be presented as a dynamic perspective 
of habitat which may change in the future''--in other words, that we 
should clearly state that the data informing the model that serve as 
part of the basis for this critical habitat designation may change over 
time.
    Response to Comment 2: Any future improvements in the quality of 
the data available to inform habitat models of the type used in part to 
identify critical habitat for Astragalus lentiginosus var. coachellae 
may be used to create future models to guide future actions for the 
conservation of the taxon. However, discussions of these potential 
improvements are beyond the scope of this critical habitat rule.
    Comment 3: One peer reviewer expressed concern that we did not 
propose sand source areas in the hills and mountains surrounding the 
Coachella Valley, where sediment is generated via water erosion (areas 
having 10 percent slope or more) on the basis of presumed redundancy of 
transport channels and eroding uplands (which, according to the 
reviewer, could be reduced with inappropriate development). The 
reviewer urged us to make certain that the critical habitat designation 
includes all possible sand source areas, especially in light of the 
degree of existing impairment of the sand supply system. Additionally, 
the reviewer stated that if specific areas of critical habitat are 
subsequently excluded by the Secretary under section 4(b)(2) of the 
Act, protection of all possible source areas will become that much more 
urgent.
    Response to Comment 3: The extensive areas in the hills and 
mountains that are ten percent slope or greater and generate sediment 
via erosion are important, but including all possible sand source areas 
in the critical habitat designation is not essential for the 
conservation of Astragalus lentiginosus var. coachellae. We have 
determined that the areas supporting fluvial sand transport processes 
(i.e., main stream channels in Units 1, 2, and 3; and alluvial deposits 
containing multiple washes in Unit 4) are essential for the 
conservation of A. l. var. coachellae because without these areas, sand 
would not be moved from the base of hills and mountains into the areas 
occupied by A. l. var. coachellae, which would result in serious 
degradation of A. l. var. coachellae habitat. We therefore did not 
propose areas with ten percent slope or greater as critical habitat for 
the taxon (see Criteria Used To Identify Critical Habitat section above 
for more discussion).
    Comment 4: One peer reviewer expressed concern regarding the 
exclusions we considered in the proposed rule. The peer reviewer urged 
caution regarding exclusions that might, according to the reviewer, 
compromise the sand supply system. The peer reviewer also was not 
convinced that the Coachella Valley MSHCP/NCCP provides adequate levels 
of funding, implementation, and oversight of management actions 
required to maintain or improve habitat for Astragalus lentiginosus 
var. coachellae (for example, removal of nonnative

[[Page 10479]]

plants, modifications to groundwater availability, and mesquite 
restoration).
    Response to Comment 4: Please see the Exclusions section above for 
our explanation of why we do not expect the exclusions we have made in 
this critical habitat designation to compromise the sand transport 
system. In that section, we also discuss implementation of the 
Coachella Valley MSHCP/NCCP and why we believe the HCP adequately 
provides for the conservation of Astragalus lentiginosus var. 
coachellae and its habitat.
    Comment 5: One peer reviewer feels that redundancy is an important 
aspect of building a robust system for the protection of biological 
resources, and that the Service should contribute to this redundancy by 
including areas in this critical habitat designation that are already 
receiving protection under HCPs. This peer reviewer pointed out the 
need for redundancy of protections if we are interested in building 
robust systems of conservation and was concerned that protections 
afforded Astragalus lentiginosus var. coachellae through the Coachella 
Valley fringe-toed lizard HCP could be lost if the fringe-toed lizard 
is delisted.
    Response to Comment 5: We also agree that redundancy of protections 
can be beneficial. However, the lands acquired under the Coachella 
Valley fringe-toed lizard HCP have been subsumed into and are managed 
as part of the Coachella Valley MSHCP/NCCP reserve system, which we 
believe adequately provides for the protection of Astragalus 
lentiginosus var. coachellae and its habitat regardless of the listing 
status of the Coachella Valley fringe-toed lizard. Part of the 
incentive for land managers to participate in the HCP process is the 
prospect of streamlining regulatory oversight of development and 
conservation planning. Critical habitat designated for a plant does not 
always add an extra regulatory layer (for example, when there is no 
Federal nexus triggering section 7 consultation). However, land 
managers may view designation of critical habitat as adding an extra 
layer of costly and time-consuming regulatory procedure. This 
perception may dissuade some land managers in other areas from 
considering HCPs worth pursuing for other species. Designation of 
critical habitat for a plant within an operable established HCP could 
jeopardize future conservation actions by other potential applicants by 
reducing the perceived value of the HCP process for stakeholders.
    Comment 6: One peer reviewer stated that the Service should 
determine what we would like to propose as critical habitat before 
soliciting opinions. The reviewer stated that because a large portion 
of the proposed critical habitat may be excluded, those reviewing the 
proposal cannot have a concrete idea of how many acres will be included 
and where these acres exist, which, according to the reviewer, makes it 
very difficult to judge the merits of the proposal.
    This peer reviewer also requested we clarify the fact that all 
Tribal lands that were proposed as critical habitat for Astragalus 
lentiginosus var. coachellae were also considered for exclusion from 
the designation.
    Response to Comment 6: We provided the acreage of areas being 
considered for exclusion from the critical habitat designation in the 
proposed critical habitat rule for Astragalus lentiginosus var. 
coachellae. We do not know at the time the proposal is published, 
which, if any, of these areas will be excluded from the final 
designation because we rely in part on comments received during the 
comment period following publication of the proposed rule to determine 
which areas being considered for exclusion in fact warrant exclusion 
from the designation. We did not indicate lands being considered for 
exclusion on the maps in the proposed rule.
    In the Exclusions section above, we have clarified the fact that 
all Tribal lands that were proposed as critical habitat for Astragalus 
lentiginosus var. coachellae were also considered for exclusion from 
the designation.
    Comment 7: One peer reviewer asserted that much more is known about 
the pollination and reproductive biology of other desert Astragalus 
taxa at Ash Meadows NWR, and that this information could be of use in 
Coachella Valley. The reviewer recommended the Pavlik and Barbour 
(1986) report (Biological Conservation 46 (1988), pp. 217-242) for 
further information.
    This peer reviewer also asserted that we were incorrect when we 
stated in the proposed critical habitat rule that Mazer and Travers 
found Astragalus lentiginosus var. piscinensis to be incapable of 
autogamy (the reviewer sited Mazer and Travers 1992, p. 91). The 
reviewer points out that Mazer and Travers (1992) reported A. l. var. 
piscinensis to have produced selfed seed at very low levels, which is 
consistent with the finding of Meinke et al. (2007) that A. l. var. 
coachellae produces selfed seed at very low levels. The reviewer goes 
on to state that they observed low levels of selfed seed set in A. l. 
var. variabilis in greenhouse studies.
    The reviewer also stated that percentages and sample sizes would 
better summarize data from the pollinator exclusion study of Meinke et 
al. (2007, p. 36), and provided references for our soil seed bank 
viability discussion including Ziemkiewicz and Cronin (1987) (Journal 
of Rangeland Management 34(2): pp. 94-97) and Ralphs and Cronin (1987) 
(Weed Science 35: pp. 792-795).
    Response to Comment 7: We appreciate the peer reviewer's 
suggestions and the information provided. We have incorporated this 
information into the appropriate sections of this rule.
    Comment 8: One peer reviewer noted that much of the work cited in 
the proposed critical habitat rule is unpublished. This reviewer 
suggested that perhaps the Service should consider incentivizing 
publication in a peer-reviewed journal.
    Response to Comment 8: We appreciate the peer reviewer's suggestion 
and will continue to encourage publication of results in peer-reviewed 
research journals.
    Comment 9: One peer reviewer suggested that Table 2 in the proposed 
rule could be improved by presenting the amount of occupied and modeled 
lands organized by political categories used in Table 2 of the proposed 
rule, then listing all of the exclusions, and then presenting what 
remains as proposed critical habitat. The reviewer stated that it would 
add greater transparency to know what may be required to ensure for the 
continued existence of the taxon, and what is actually being protected 
if this information were in one place.
    This peer reviewer suggested the proposed critical habitat rule 
could also be improved by providing better maps. In these maps, the 
reviewer feels it would be very valuable to include the considered 
exclusions and land ownership, particularly Federal lands because of 
the differences in protection provided to plants by the Act on Federal 
versus non-Federal lands.
    Response to Comment 9: We appreciate the peer reviewer's 
suggestions. We have organized the land ownership table in this 
critical habitat final rule as suggested (see Table 1). We will 
consider adding greater detail to maps included in critical habitat 
rules, but the printing standards of the Federal Register are not 
compatible with detailed features that would show parcel-level land 
ownership data. We constructed the critical habitat units using 
Geographic Information System (GIS). The resulting critical habitat GIS 
shapefiles are available by request from

[[Page 10480]]

the Carlsbad Field Office (see FOR FURTHER INFORMATION CONTACT).
    Comment 10: One peer reviewer pointed out that application of 
herbicide may affect the soil seed bank and suggested we conduct a 
study which explores the effects of various herbicides on the seed bank 
of Astragalus lentiginosus var. coachellae prior to implementing any 
management activities involving herbicide.
    Response to Comment 10: We appreciate the peer reviewer's concern 
and have edited the appropriate section of this final critical habitat 
rule to address the potential for herbicides to adversely impact the 
soil seed bank. Potential impacts from herbicides will be considered 
during implementation of management activities affecting Astragalus 
lentiginosus var. coachellae.
Comment From Tribal Interests
    Comment 11: The Agua Caliente Band of Cahuilla Indians asserted 
that the protections afforded by their draft 2010 Tribal Habitat 
Conservation Plan (draft 2010 Tribal HCP) are equal to those expected 
to be provided by a critical habitat designation. Agua Caliente Band of 
Cahuilla Indians listed the goals for conserving Astragalus 
lentiginosus var. coachellae as outlined in the draft 2010 Tribal HCP 
and described the measures put forth in the draft 2010 Tribal HCP aimed 
at conserving A. l. var. coachellae habitat. They also included 
language from the draft 2010 Tribal HCP describing tribal lands on the 
Coachella Valley floor and the fluvial sand transport process areas and 
planned mitigation for development impacts in these areas.
    The Agua Caliente Band of Cahuilla Indians also described their 
relationship with the Service by stating, ``The Tribe has, for the past 
14 years, been a consistent partner with the Service to develop and 
implement a series of increasingly detailed and sophisticated Tribal 
HCPs that provide protection to endangered and sensitive species on the 
Reservation. It is important to note that the Tribe has always acted in 
good faith and chose to develop these plans which include strict 
provisions for conservation.'' According to the Agua Caliente Band of 
Cahuilla Indians, the Secretary's decision to include or exclude tribal 
lands from the critical habitat designation should be based on the 
adequacy and value of the tribal/Federal partnership, not on the formal 
approval of the draft Tribal Habitat Conservation Plan. They state that 
this position is supported by the Secretary's exclusion of Agua 
Caliente Band of Cahuilla Indians lands from the critical habitat 
designation for Peninsular bighorn sheep.
    Further, Agua Caliente Band of Cahuilla Indians state they would 
have a disincentive to continue enforcing the draft 2010 Tribal HCP 
with respect to Astragalus lentiginosus var. coachellae if critical 
habitat is designated on Agua Caliente Band of Cahuilla Indians lands. 
And without enforcement of the draft HCP, ``conservation on the 
Reservation will proceed in an incomplete and piecemeal fashion, using 
section 7 consultations where there is a Federal nexus, and no fee 
collection or mitigation on fee land,'' according to the Agua Caliente 
Band of Cahuilla Indians.
    Although they have not finalized the draft 2010 Tribal HCP and 
secured a permit under section 10(a)(1)(B) of the Act, Agua Caliente 
Band of Cahuilla Indians state that because they have been enforcing 
the terms of the draft 2010 Tribal HCP and continue to maintain their 
relationship with the Service, Agua Caliente Band of Cahuilla Indians 
lands should be excluded from the critical habitat designation for A. 
l. var. coachellae.
    Additionally, Agua Caliente Band of Cahuilla Indians expressed 
support for exclusion of tribal lands from the designation under 
section 4(b)(2) of the Act, because such an exclusion would be in 
keeping with Secretarial Order 3206 (June 5, 1997) entitled, ``American 
Indian Tribal Rights, Federal-Tribal Trust responsibilities, and the 
Endangered Species Act'' (discussed in the Exclusions Under Section 
4(b)(2) of the Act--Tribal Lands section above).
    In summary, Agua Caliente Band of Cahuilla Indians supports 
exclusion of tribal lands from this critical habitat designation and 
reliance on the draft 2010 Tribal HCP to avoid ``additional, 
unnecessary regulatory burden'' they feel would result from designation 
of critical habitat on their lands.
    Response to Comment 11: We understand that the Agua Caliente Band 
of Cahuilla Indians considers the draft Tribal HCP to be a Tribal-
approved, final document and implements it as such for land-use 
planning on all Reservation lands. We have taken their dedication to 
implementing their draft Tribal HCP and resulting conservation efforts 
for Astragalus lentiginosus var. coachellae and its habitat as well as 
other taxa and biological resources, their continuing partnership with 
the Service, and issues of tribal self-governance and government-to-
government relations into consideration when comparing the benefits of 
including Agua Caliente Band of Cahuilla Indians lands to the benefits 
of excluding those lands. Based on the results of this evaluation, the 
Secretary is exercising his discretion to exclude all Agua Caliente 
Band of Cahuilla Indians lands from this final revised critical habitat 
designation (see Exclusions Under Section 4(b)(2) of the Act--Tribal 
Lands section above).
    Comment 12: The Morongo Band of Mission Indians requested that 
their lands be excluded from the critical habitat designation for 
Astragalus lentiginosus var. coachellae. In support of this request, 
the Morongo Band of Mission Indians provided descriptions of land 
designations and management policies and practices they assert will 
preserve and limit impacts to biological resources including fluvial 
sand transport processes on Morongo Band of Mission Indians lands. They 
also described nonnative plant removal projects and a tribal ordinance 
aimed at controlling OHV use on Morongo Band of Mission Indians lands. 
They argued that although they have not completed a management plan 
that specifically provides for conservation of A. l. var. coachellae, 
the policies and practices they have implemented contribute to the 
conservation and continuance of fluvial sand transport and thus 
eliminate the need for designation of proposed Morongo Band of Mission 
Indians lands.
    The Morongo Band of Mission Indians also provided a discussion of 
tribal self-governance and the protocols of a government-to-government 
relationship under Secretarial Order 3206, stating that ``* * * 
Congressional and Administrative policies should continue to promote 
tribal self-government, self-sufficiency, and self-determination, 
recognizing and endorsing the fundamental rights of Morongo to set our 
own priorities and make decisions affecting our resources and 
distinctive ways of life. Morongo Band of Mission Indians has the 
ability and resources to manage [Morongo Band of Mission Indians lands 
proposed as critical habitat for Astragalus lentiginosus var. 
coachellae] and implement reasonable and prudent alternatives to avoid 
destruction or adverse modifications to fluvial sand transport in 
[these areas].''
    Response to Comment 12: We have taken the Morongo Band of Mission 
Indians' contributions to the conservation of biological resources on 
their lands, their continuing partnership with the Service, as well as 
issues of tribal self-governance and government-to-government relations 
into consideration when comparing the benefits of including Tribal 
lands to the benefits of excluding those lands. Based on the results of 
this evaluation, the Secretary is exercising his discretion to exclude 
all Morongo Band of Mission

[[Page 10481]]

Indians lands from this final revised critical habitat designation (see 
Exclusions Under Section 4(b)(2) of the Act--Tribal Lands section 
above).
    Comment 13: The U.S. Bureau of Indian Affairs (BIA) expressed their 
support of comments submitted by Agua Caliente Band of Cahuilla Indians 
and Morongo Band of Mission Indians regarding the proposed critical 
habitat for Astragalus lentiginosus var. coachellae and requested that 
Agua Caliente Band of Cahuilla Indians and Morongo Band of Mission 
Indians lands be excluded from the final critical habitat designation 
for the taxon. The BIA considers designation of critical habitat on 
Indian lands as an infringement upon and taking of Indian assets by a 
fellow trustee (the Service). They outlined a number of Federal 
policies and congressional actions relevant to Indian tribes regarding 
the Endangered Species Act, which they feel support their request that 
Agua Caliente Band of Cahuilla Indians and Morongo Band of Mission 
Indians lands be excluded.
    The BIA also asserted that Agua Caliente Band of Cahuilla Indians 
and Morongo Band of Mission Indians lands should be excluded because 
designating critical habitat on these lands would jeopardize 
partnerships between the Service and both tribes. According to the BIA, 
excluding Agua Caliente Band of Cahuilla Indians and Morongo Band of 
Mission Indians lands from the critical habitat designation would allow 
voluntary partnerships to continue, which they feel would have a long-
term benefit for Astragalus lentiginosus var. coachellae.
    Response to Comment 13: We evaluated the benefits of exclusion of 
all reservation lands from this final revised critical habitat 
designation. Maintaining and fostering partnerships and good working 
relationships with tribes are benefits of exclusion and are supported 
by Secretarial Order 3206. Consistent with Secretarial Order 3206 and 
Executive Order 13175, we also believe tribal lands are better managed 
under tribal authorities, policies, and programs than through Federal 
regulation wherever possible and practicable. We found the benefits of 
excluding Morongo Band of Mission Indians lands and Agua Caliente Band 
of Cahuilla Indians lands to be greater than the benefits of including 
these lands in the critical habitat designation (see Exclusions Under 
Section 4(b)(2) of the Act--Tribal Lands section above for a detailed 
discussion). Therefore, the Secretary is exercising his discretion to 
exclude Agua Caliente Band of Cahuilla Indians and Morongo Band of 
Mission Indians reservation lands from this final revised critical 
habitat designation.
    We recognize and value our relationships with both tribes and will 
continue to work cooperatively with them to conserve federally listed 
species on their lands.
    Comment 14: The BIA asserted that it is justified and appropriate 
to automatically remove lands from a critical habitat designation that 
are subsequently brought into Trust by a tribe upon incorporation into 
the Tribal management plan.
    Response to Comment 14: The revision of a designation of critical 
habitat either by the inclusion or exclusion of any specific area is 
required to be accomplished through a rulemaking process by which the 
revisions are proposed for public review and comment, and then a final 
rule is issued following consideration of all comments and best 
available scientific information. Revisions to critical habitat cannot 
be automatic.
Comments From HCP Administrators and Permittees
    Comment 15: One commenter stated opposition to the Service's 
proposed critical habitat designation for Astragalus lentiginosus var. 
coachellae on approximately 158 ac (64 ha) within Western Riverside 
County MSHCP boundaries. The commenter provided reasoning in support of 
their opposition.
    Response to Comment 15: The 158 ac (64 ha) to which the commenter 
refers is not covered under the Western Riverside County MSHCP. The 
Service was in error when we stated in the proposed critical habitat 
rule that this area was covered under the Western Riverside County 
MSHCP; this area is actually Morongo Band of Mission Indians land. We 
corrected this error in the Federal Register notice announcing the 
availability of the draft Economic Analysis for the proposed revised 
critical habitat designation published on May 16, 2012 (77 FR 28849), 
and we explain the error in the Summary of Changes from Proposed Rule 
section above. No lands covered under the Western Riverside County 
MSHCP have been proposed or designated as critical habitat for 
Astragalus lentiginosus var. coachellae. The commenter's issue is 
therefore moot.
    Comment 16: One commenter provided a description of the Coachella 
Valley MSHCP/NCCP and explained how the Coachella Valley MSHCP/NCCP is 
expected to add approximately 175,000 ac to an existing 550,000 ac of 
public and private conserved land to create a reserve system of 725,000 
ac, and they explained how the MSHCP funds ongoing management and 
biological monitoring and establishes an endowment to continue 
management and monitoring in perpetuity. The commenter stated that the 
MSHCP has been and continues to be successful in conserving land to 
protect Astragalus lentiginosus var. coachellae and other species and 
summarized the number of acres conserved within the sand transport 
system by MSHCP partners since 1996 and by the Coachella Valley 
Conservation Commission since the MSHCP was permitted. According to the 
commenter, areas within the sand transport system are considered a 
conservation priority for the Coachella Valley Conservation Commission, 
which administers the local implementation of the Coachella Valley 
MSHCP/NCCP.
    The commenter asserted that any designation of critical habitat on 
land under the jurisdiction of Coachella Valley MSHCP/NCCP permittees 
is unnecessary and counterproductive to the goal of implementing a 
comprehensive, landscape-level approach to conservation in the region. 
The commenter stated that critical habitat designations represent a 
species-by-species and project-by-project implementation of the Act 
that fails to provide the landscape-level conservation, with attendant 
management and monitoring, that is necessary to preserve sensitive 
species and the natural systems upon which they depend.
    The commenter asserted that the Coachella Valley MSHCP/NCCP 
stakeholders have demonstrated the depth of their commitment to the 
success of the MSHCP and stated that the addition of another layer of 
regulation through this critical habitat designation after the 
stakeholders have demonstrated their dedication to the MSHCP would 
damage the Service's partnership with MSHCP stakeholders and create a 
disincentive for participation in the MSHCP.
    This commenter's recommendation that lands covered under the 
Coachella Valley MSHCP/NCCP be excluded from the critical habitat 
designation for Astragalus lentiginosus var. coachellae was supported 
by a second commenter. The second commenter also stated that excluding 
these lands would not compromise the policies and programs aimed at 
protecting and restoring the taxon, and that there is no advantage 
either for the agencies, landowners, and citizens committed to the 
environmental health of the Coachella Valley or for A. l. var. 
coachellae in including these areas in the critical habitat 
designation.

[[Page 10482]]

    Additionally, the second commenter stated that, as a Coachella 
Valley MSHCP/NCCP permittee, the Riverside County Flood Control and 
Water Conservation District is subject to applicable MSHCP provisions 
including the requirement to contribute mitigation to assist in 
achieving the regional conservation objectives identified in the MSHCP, 
which includes a number of specific regional objectives to ensure long-
term conservation of Astragalus lentiginosus var. coachellae. The 
commenter went on to state that Riverside County Flood Control and 
Water Conservation District projects within the proposed revised 
critical habitat areas are subject to a Joint Project Review process 
required for projects that are located within Conservation Areas, and 
that these projects are also subject to review by the Service as 
described in the MSHCP. Compliance with the MSHCP by the Riverside 
County Flood Control and Water Conservation District and other 
Coachella Valley MSHCP/NCCP permittees ensures that the species will be 
conserved on a regional basis as intended when the Service authorized 
the final MSHCP, according to the commenter.
    Two more commenters also supported the recommendation that lands 
covered by the Coachella Valley MSHCP/NCCP should be excluded from the 
critical habitat designation for Astragalus lentiginosus var. 
coachellae.
    Both the third and fourth commenters expressed concern with the 
proposed designation of critical habitat on lands covered under the 
Coachella Valley MSHCP/NCCP, particularly those lands owned and managed 
by the Riverside County Flood Control and Water Conservation District 
and the Coachella Valley Water District. The third commenter's issues 
included their belief that designating critical habitat on lands 
covered under the Coachella Valley MSHCP/NCCP will--
     Provide negligible, if any, benefits to Astragalus 
lentiginosus var. coachellae;
     Negate any benefits to the MSHCP permittees from their 
efforts to provide regional conservation for A. l. var. coachellae and 
invest in establishing a regional habitat-based long-term conservation 
program; and
     Run counter to statements made in the Implementing 
Agreement for the Coachella Valley MSHCP/NCCP (commenter cited Section 
14.11 of the Coachella Valley MSHCP/NCCP Implementing Agreement and 
Section 6.8 of the Coachella Valley MSHCP/NCCP).
    The fourth commenter stated that the Coachella Valley Water 
District, another permittee of the Coachella Valley MSHCP/NCCP, has 
provided a commitment to the success of the MSHCP, including 
establishing constructed habitat, restoring and enhancing existing 
habitat, conserving 7,000 ac of Coachella Valley Water District lands 
(including over 1,800 ac of its land within the Whitewater River 
floodplain that provides habitat for Astragalus lentiginosus var. 
coachellae) and a $3.58 million contribution to an endowment fund for 
monitoring and adaptive management. This commenter also briefly 
described the permittees' responsibilities under the Coachella Valley 
MSHCP/NCCP, stating that the approach to conservation that the 
permittees have committed to under the MSHCP has been vetted and 
approved by the Service and California Department of Fish and Game. The 
commenter asserted that Coachella Valley Water District's commitment to 
the success of the Coachella Valley MSHCP/NCCP is also demonstrated by 
their active participation in the development and implementation of the 
MSHCP and their ongoing cooperation with partners and wildlife 
agencies.
    The fourth commenter expressed concern that the proposed critical 
habitat designation puts in question the Service's commitment to the 
Coachella Valley MSHCP/NCCP objectives and implementation, and that 
designating critical habitat on lands covered under the Coachella 
Valley MSHCP/NCCP will jeopardize the ultimate success of the MSHCP.
    Designating critical habitat on lands covered by the Coachella 
Valley MSHCP/NCCP would create duplicative and redundant regulatory 
efforts, according to both the third and fourth commenters (this issue 
is discussed further in Response to Comment 18 below). For this reason 
and those outlined above, the third commenter requested that lands 
within the Coachella Valley MSHCP/NCCP boundaries be excluded from the 
final critical habitat designation for Astragalus lentiginosus var. 
coachellae, and the fourth commenter requested that the Service 
terminate efforts to adopt a revised critical habitat designation for 
A. l. var. coachellae.
    The third and fourth commenters also asserted that designating 
critical habitat on lands covered by the Coachella Valley MSHCP/NCCP 
would create a duplicative and redundant regulatory burden, which they 
suggest could delay efficient and timely operation and maintenance of 
water and flood control infrastructure on lands covered by the 
Coachella Valley MSHCP/NCCP.
    The third commenter stated that these potential delays could 
jeopardize public health and safety. This commenter stated that the 
inclusion of existing flood control facilities within the final 
critical habitat area would trigger the section 7 consultation process 
for any Riverside County Flood Control and Water Conservation District 
maintenance, repair, replacement, and rehabilitation activities. The 
commenter expressed concern that this may prevent or delay maintenance 
of these flood control facilities and thereby pose a potential threat 
to public health and safety. Therefore, the commenter stated that the 
existing Cabazon Channel, Chino Canyon Levee, Whitewater River Levee, 
Mission Creek Channel, and Desert Hot Springs Channel Line E facilities 
should be excluded from the final revised critical habitat designation 
for Astragalus lentiginosus var. coachellae.
    The fourth commenter asserted that this critical habitat 
designation is unwarranted, redundant, and counterproductive 
considering the success they assert has already been achieved 
conserving critical habitat for Astragalus lentiginosus var. coachellae 
through the Coachella Valley MSHCP/NCCP.
    Response to Comment 16: We have considered the aforementioned 
commenters' concerns. In exercising his discretion to exclude areas 
from critical habitat under section 4(b)(2) of the Act, the Secretary 
weighed the benefits of exclusion against the benefits of inclusion. We 
did not exclude areas based on the existence of management plans or 
other conservation measures; however, we acknowledge that the existence 
of a plan may reduce the benefits of inclusion of an area in critical 
habitat to the extent the protections provided under the plan are 
largely redundant with conservation benefits of the critical habitat 
designation. Thus, in some cases, the benefits of exclusion in the form 
of sustaining and encouraging partnerships that result in on-the-ground 
conservation of listed species may outweigh the benefits of inclusion. 
Based on the discussion in the Exclusions Under Section 4(b)(2) of the 
Act--Coachella Valley MSHCP/NCCP section above, the Secretary is 
exercising his discretion to exclude all lands covered by the Coachella 
Valley MSHCP/NCCP from this final revised critical habitat designation.
    Comment 17: One commenter asserted that because the City of Desert 
Hot Springs is currently requiring all

[[Page 10483]]

projects within Coachella Valley MSHCP/NCCP Conservation Areas to 
undergo the Joint Project Review process, and is actively working to 
formally bring their entire city into the MSHCP through a Major 
Amendment, excluding all land under the jurisdiction of the City of 
Desert Hot Springs from the critical habitat designation for Astragalus 
lentiginosus var. coachellae is warranted.
    Response to Comment 17: The City of Desert Hot Springs did not 
submit comments on the proposed critical habitat designation during 
either public comment period and did not request exclusion from this 
designation. We are proceeding with this designation based on the 
current conditions and participants of the Coachella Valley MSHCP/NCCP 
in awareness and consideration of changes in participation of Desert 
Hot Springs.
    Comment 18: One commenter asserted that many necessary public 
infrastructure projects, including flood control and the regional 
transportation network, must involve Federal land to some degree, and 
virtually all of the Federal land in the area in question is 
administered by BLM, whose 2002 BLM California Desert Conservation Area 
Plan Amendment for the Coachella Valley already requires BLM actions to 
be consistent with the Coachella Valley MSHCP/NCCP. According to the 
commenter, including Federal land in the critical habitat designation 
is redundant and counterproductive to the conservation partnership that 
currently exists between BLM, State and Federal wildlife agencies, and 
local jurisdictions. The commenter asserted that Federal lands must, 
therefore, be excluded from the critical habitat designation.
    This commenter's recommendation that Federal lands be excluded from 
the critical habitat designation for Astragalus lentiginosus var. 
coachellae was supported by two other commenters. The second commenter 
also asserted that excluding these lands would not compromise the 
policies and programs aimed at protecting and restoring the taxon, and 
that there is no advantage either for the agencies, landowners, and 
citizens committed to the environmental health of the Coachella Valley 
or for A. l. var. coachellae in including these areas in the critical 
habitat designation. The third commenter stated that designation of 
critical habitat on Federal land within the Coachella Valley MSHCP/NCCP 
plan area would create an additional layer of regulation impacting 
efficient and timely operation and maintenance of critical water and 
flood control infrastructure on Coachella Valley Water District lands 
within the plan area.
    Response to Comment 18: We acknowledge that the BLM participates in 
the management of certain Conservation Areas or portions of 
Conservation Areas within the reserve system of the Coachella Valley 
MSHCP/NCCP and provides conservation of biological resources in 
accordance with the California Desert Conservation Area Plan Amendment 
for the Coachella Valley. We appreciate and commend the efforts of the 
BLM to work with the Coachella Valley MSHCP/NCCP permittees and to 
conserve federally listed species on their lands.
    The Secretary has the discretion to exclude an area from critical 
habitat under section 4(b)(2) of the Act after taking into 
consideration the economic impact, the impact on national security, and 
any other relevant impact if he determines that the benefits of such 
exclusion outweigh the benefits of designating such area as critical 
habitat, unless he determines that the exclusion would result in the 
extinction of the species concerned. Based on the record before us, the 
Secretary is not exercising his discretion to exclude the BLM lands, 
and we are designating these lands as critical habitat for Astragalus 
lentiginosus var. coachellae.
    Comment 19: One commenter stated that Unit 3 of the proposed 
critical habitat contains the existing Mission Creek Channel and Unit 2 
contains the existing Chino Canyon and Whitewater River Levees. 
According to the commenter, the channel and levees are existing manmade 
features and structures that do not contain the primary constituent 
element essential to the conservation of Astragalus lentiginosus var. 
coachellae.
    Response to Comment 19: The Secretary is exercising his discretion 
to exclude lands covered under the Coachella Valley MSHCP/NCCP from 
this critical habitat designation under section 4(b)(2) of the Act. 
Because Riverside County Flood Control and Water Conservation District 
is a permittee of the Coachella Valley MSHCP/NCCP, Mission Creek 
Channel and Chino Canyon and Whitewater River Levees have been excluded 
from this designation.
Comments Regarding Wind Energy
    Comment 20: One commenter stated that although Unit 2 of the 
proposed critical habitat is characterized as unoccupied in the 
proposed rule, it contains significant wind energy installations and 
potential solar energy installations.
    Response to Comment 20: Throughout the proposed and final revised 
critical habitat rules, we use the term ``unoccupied'' to refer to 
areas that, to our knowledge, are not occupied by the target taxon, in 
this case Astragalus lentiginosus var. coachellae. We do not intend the 
term ``unoccupied'' to imply that an area is not occupied by manmade 
structures. It seems the commenter was referring to the entirety of 
Unit 2 as being characterized as unoccupied, which is incorrect; only 
the fluvial sand transport areas (the Whitewater River channel) of Unit 
2 are characterized as unoccupied. To our knowledge, there are no wind 
energy installations in the unoccupied fluvial sand transport areas of 
Unit 2.
    Comment 21: Five commenters expressed concern that designating 
critical habitat on lands occupied by wind energy projects would 
conflict with Federal and California State policies aimed at promoting 
alternative energy by potentially introducing unknown regulatory 
burdens and restrictions on the operation of wind energy facilities.
    Of these five commenters, four also stated that suitable Astragalus 
lentiginosus var. coachellae habitat is found in abundance on wind 
energy sites along with the aeolian and fluvial sand transport that 
occurs in these areas. All four commenters explained that wind- and 
water-borne sands are able to flow freely in between wind turbines, 
creating suitable habitat for the taxon. Two of these commenters go on 
to assert that approximately 90 percent of the area occupied by wind 
power facilities is suitable for A. l. var. coachellae and sand 
transport. One commenter also asserted that wind energy is a long-term 
land use that does not disturb soils or destroy individual plants in 
the course of daily or yearly operations.
    These four commenters also describe how measures in place to 
protect wind power facilities from vandalism also provide protection 
for Astragalus lentiginosus var. coachellae (for example, ``Our wind 
project is completely fenced off and patrolled against trespassing and 
illegal dumping. This eliminates off-road vehicles, trash dumping and 
illegal landscape disposal from this habitat area.'').
    For the above reasons, these five commenters asserted that lands 
containing wind energy facilities should be excluded from the final 
critical habitat designation for Astragalus lentiginosus var. 
coachellae. Four of these commenters go on to recommend the specific 
areas that should be excluded: The disturbance footprint of

[[Page 10484]]

existing roads, wind turbines, foundations, transformers, pole lines, 
underground and overhead lines, meteorological towers, communication 
facilities, fences and gates, storage yards, and electrical substations 
and interconnects.
    Response to Comment 21: The Service appreciates any protections 
that may be provided the taxon and its habitat on wind energy 
facilities.
    The area the commenters referred to in their comment, bounded by 
Interstate 10 to the west and Indian Canyon Road to the east, has 
multiple landowners. Some of these landowners are permittees of the 
Coachella Valley MSHCP/NCCP, others, such as the BLM (a Federal 
agency), are not. The Secretary has the discretion to exclude an area 
from critical habitat under section 4(b)(2) of the Act after taking 
into consideration the economic impact, the impact on national 
security, and any other relevant impact if he determines that the 
benefits of such exclusion outweigh the benefits of designating such 
area as critical habitat, unless he determines that the exclusion would 
result in the extinction of the species concerned. In exercising his 
discretion to exclude areas from critical habitat under section 4(b)(2) 
of the Act, the Secretary weighed the benefits of exclusion against the 
benefits of inclusion, and is exercising his discretion to exclude all 
lands covered under the Coachella Valley MSHCP/NCCP from this final 
revised critical habitat designation (see Response to Comment 16 and 
Exclusions Under Section 4(b)(2) of the Act--Coachella Valley MSHCP/
NCCP section above for more detailed discussion). Any lands covered 
under the Coachella Valley MSHCP/NCCP containing wind power facilities 
are, therefore, excluded from this critical habitat designation.
    Based on the record before us, the Secretary is not exercising his 
discretion to exclude lands in the area in question that are not 
covered by the Coachella Valley MSHCP/NCCP, such as BLM lands, and we 
are designating these lands as critical habitat for Astragalus 
lentiginosus var. coachellae.
    However, when determining critical habitat boundaries within this 
final rule, despite our efforts to avoid including developed areas such 
as lands covered by buildings, pavement, and other structures because 
such lands lack the physical or biological features for Astragalus 
lentiginosus var. coachellae, the scale of the maps we prepared under 
the parameters for publication within the Code of Federal Regulations 
may not reflect the exclusion of such developed lands. Any such lands 
inadvertently left inside critical habitat boundaries shown on the maps 
of this final rule have been excluded by text in the rule and are not 
designated as critical habitat. Therefore, a Federal action involving 
these lands will not trigger section 7 consultation with respect to 
critical habitat and the requirement of no adverse modification unless 
the specific action may affect the adjacent critical habitat. So 
although some of the lands containing wind energy facilities have been 
designated as critical habitat for A. l. var. coachellae (those lands 
not covered under the Coachella Valley MSHCP/NCCP), those areas that 
are covered by pavement or structures are not included in the 
designation and are excluded by text.
    Because the areas in question are occupied by Astragalus 
lentiginosus var. coachellae, and any project in these areas with a 
Federal nexus would require consultation with the Service under section 
7 of the Act to address potential impacts to the taxon, the economic 
analysis for the critical habitat designation did not predict project 
modification costs to wind energy interests due to the designation of 
critical habitat, only administrative costs of adding adverse 
modification analyses to these future section 7 consultations.
Comments From Other Interested Parties
    Comment 22: One commenter expressed strong support for our 
designation of critical habitat for Astragalus lentiginosus var. 
coachellae, in particular because of the documented population declines 
of A. l. var. coachellae (some up to 77 percent according to the 
commenter) and the general lack of successful recruitment (the 
commenter cited USFWS 2009).
    This commenter went on to observe that the proposed critical 
habitat appears to include most of the extant locations for Astragalus 
lentiginosus var. coachellae and appears to include the sand transport 
corridors, sand formations, and alluvial areas that remain viable in 
the Coachella Valley area, and that these areas are essential to 
maintaining the unique habitat upon which A. l. var. coachellae 
depends.
    Response to Comment 22: We appreciate the commenter's support of 
our proposed designation.
    Comment 23: One commenter stated that none of the areas proposed 
for critical habitat should be considered for exclusion from the final 
designation. This commenter also strongly recommended we utilize the 
Service's ``policy for evaluation of conservation efforts when making 
listing decisions'' (PECE) (68 FR 15100) when considering exclusions 
from the final critical habitat designation. Although the policy was 
developed in the context of listing rather than designation of critical 
habitat, the commenter asserted that the criteria apply equally well to 
determining the benefits of any conservation plan in the context of 
considering exclusions.
    Response to Comment 23: Section 4(b)(2) of the Act requires the 
Secretary to designate critical habitat after taking into consideration 
the economic impacts, national security impacts, and any other relevant 
impacts 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 designating a particular 
area as critical habitat, unless the failure to designate will result 
in the extinction of the species. The exclusions in this final rule are 
supported under section 4(b)(2) of the Act. After analyzing the 
benefits of inclusion and exclusion of proposed critical habitat on 
lands covered by the Coachella Valley MSHCP/NCCP and on Agua Caliente 
Band of Cahuilla Indians and Morongo Band of Mission Indians 
reservation lands, we determined that the benefits of exclusion 
outweigh the benefits of inclusion for all of these areas (see 
Exclusions Under Section 4(b)(2) of the Act--Coachella Valley MSHCP/
NCCP and Exclusions Under Section 4(b)(2) of the Act--Tribal Lands 
sections above). Service biologists continue to work with the 
permittees of the Coachella Valley MSHCP/NCCP, the Morongo Band of 
Mission Indians, and the Agua Caliente Band of Cahuilla Indians to 
ensure the conservation of Astragalus lentiginosus var. coachellae and 
its habitat.
    The PECE Policy outlines specific criteria by which conservation or 
management actions and programs are evaluated for use in making listing 
determinations under the Act. However, the PECE Policy explicitly 
states that the Policy is not to be used for evaluating conservation or 
management actions for critical habitat designations. More 
appropriately, with regard to critical habitat, these actions and 
programs should be considered under section 4(b)(2) of the Act, and, if 
the Secretary wants to exercise his discretion to exclude an area from 
a critical habitat designation, evaluated through the balancing 
analysis under section 4(b)(2) of the Act to determine if the benefits 
of excluding the specific areas covered by them from critical habitat 
outweigh the benefits of including them in the designation.
    Comment 24: One commenter urged us to determine whether the various

[[Page 10485]]

conservation and management plans in the Coachella Valley manage for 
recovery of Astragalus lentiginosus var. coachellae. The commenter 
expressed concern that many habitat conservation plans allow what the 
commenter sees as substantial destruction of habitat such that even 
with mitigation, they result in a net loss of habitat and thus do not 
ensure recovery of covered species.
    The commenter goes on to state that:

    ``In invalidating a 1986 regulation that collapsed the 
definition of adverse modification with jeopardy, the Ninth Circuit 
concluded that the regulation `finds that adverse modification to 
critical habitat can only occur when there is so much critical 
habitat lost that a species' very survival is threatened,' which 
would `drastically narrow the scope of protection commanded by 
Congress under the ESA.' (Gifford Pinchot Task Force v. United 
States Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). 
This and other court decisions demonstrate that critical habitat 
must receive a greater degree of protection than is typically 
provided by HCPs or other management plans. Given this disparity, we 
ask that when determining whether to exclude essential habitat based 
on an HCP, FWS makes a determination as to whether the HCP will 
ensure recovery of the species, which for [Astragalus lentiginosus 
var. coachellae*], which is limited by habitat, would mean 
increasing the amount of habitat over time.''
    *(The commenter refers to `flycatcher' here; we presume the 
commenter intended to refer to Astragalus lentiginosus var. 
coachellae.)

    Response to Comment 24: We appreciate the commenter's concerns 
regarding the long-term recovery of Astragalus lentiginosus var. 
coachellae. However, the Secretary is vested with broad discretion 
under section 4(b)(2) in evaluating whether the benefits of excluding 
an area from critical habitat designation outweigh the benefits of 
designating the area, so long as exclusion of an area will not result 
in extinction of a species. We consider a number of factors in a 
section 4(b)(2) analysis, including (but not limited to) the 
protections afforded for a species and its essential habitat under an 
HCP, whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat, 
particularly partnerships that include voluntary protections for listed 
plant species in an HCP or other management plan, and the economic, 
regulatory, and educational impacts of including a particular area as 
critical habitat. Please see the Exclusions section for further 
discussion.
    We found the benefits of excluding lands that are covered under the 
Coachella Valley MSHCP/NCCP to be greater than the benefits of 
including these lands. Please see the Exclusions under Section 4(b)(2) 
of the Act--Coachella Valley MSHCP/NCCP section above for a detailed 
discussion. The Service views the partnerships we share with permittees 
of the HCP and local landowners and managers as having greater 
potential to provide for the recovery of the taxon than designation of 
critical habitat in areas covered under the HCP, which could damage 
these partnerships and thus reduce potential for recovery.
    Comment 25: One commenter requested that we provide evidence that 
designating critical habitat in addition to any HCPs or other 
management plans would do any harm. The commenter asserts that real 
evidence of harm from critical habitat designation, such as a landowner 
abandoning a plan or even threatening to take such action, is lacking, 
and that the Service does not have or require such data to support this 
conclusion.
    Response to Comment 25: We have received comment letters from some 
of the Coachella Valley MSHCP/NCCP permittees, the Coachella Valley 
Conservation Commission, the Agua Caliente Band of Cahuilla Indians, 
the Morongo Band of Mission Indians, and the Bureau of Indian Affairs 
in response to the proposed rule to designate critical habitat for 
Astragalus lentiginosus var. coachellae, all stating that the 
partnerships that we share with these entities will be damaged by 
designation of critical habitat on tribal lands or lands covered under 
the Coachella Valley MSHCP/NCCP. We consistently receive similar 
comments from HCP stakeholders and other partners in response to rules 
proposing critical habitat designation on lands covered by HCPs and 
other areas where conservation of biological resources is carried out 
in conjunction with the Service via partnerships. We believe these 
communications are sufficient evidence of the potential to damage 
partnerships and diminish conservation efforts of partners by adding a 
real or perceived regulatory burden of critical habitat designation.
    Comment 26: One commenter is concerned that we did not include all 
of the extant locations where Astragalus lentiginosus var. coachellae 
is documented to occur and a robust identification of the sand sources 
required to sustain the taxon's habitat over time. The commenter 
requested that we consider all of the areas identified in the five-year 
review for A. l. var. coachellae to support the taxon or provide a 
justification for why they were not included.
    In particular, the commenter asked that we consider adding areas 
where numerous plants have been documented to occur between Units 2, 3, 
and 4 between Rancho Mirage and Thousand Palms and in Indian Wells near 
Highway 111, and elsewhere.
    Response to Comment 26: The commenter did not define ``robust 
identification.'' We do indicate what areas surrounding the Coachella 
Valley contribute sand required to sustain Astragalus lentiginosus var. 
coachellae habitat in both the proposed revised critical habitat rule 
and this final revised rule, and we believe that more detailed 
discussion of these areas is outside of the scope of these rules. In 
both the proposed and final revised rules, we have outlined our methods 
and reasoning for not proposing all areas occupied by the taxon (see 
Criteria Used To Identify Critical Habitat section above).
    Comment 27: One commenter asked that we consider all sand source 
areas identified in the 2004 critical habitat proposal as part of this 
critical habitat designation or provide a justification for why they 
are not included.
    Response to Comment 27: We provided an explanation of the methods 
and reasoning behind our decision not to propose the hills and 
mountains where sediment is generated via water erosion (fluvial sand 
source areas) in Units 1, 2, and 3 as critical habitat for Astragalus 
lentiginosus var. coachellae in the Criteria Used To Identify Critical 
Habitat section above, as well as in our response to peer reviewer 
comment number 3.
    Comment 28: One commenter expressed concern that, while the Agua 
Caliente Band of Cahuilla Indians are continuing to implement the draft 
HCP, there is no information on the adequacy of the draft HCP or the 
permanence of the Tribe's commitment to maintain its provisions.
    The commenter also stated that because the Morongo Band of Mission 
Indians has not completed a management plan, there are no assured 
protections or management actions in place, and the partnerships' 
effectiveness is questionable.
    The commenter goes on to assert that exclusion of these Tribal 
lands from this critical habitat designation would set a precedent that 
is unfair to Tribes that actually have plans in place that are either 
HCPs or functional equivalents, and incentivize inaction rather than 
encouraging Tribes to actually work with the Service on tangible 
conservation benefits. Balancing in favor of exclusion of Tribal lands 
from critical habitat designations appears to the commenter to be 
politically

[[Page 10486]]

motivated rather than based on on-the-ground facts.
    Response to Comment 28: In accordance with the Secretarial Order 
3206, ``American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act'' (June 5, 1997); 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 relevant provision of the Departmental 
Manual of the Department of the Interior (512 DM 2), we believe that 
fish, wildlife, and other natural resources on tribal lands are better 
managed under tribal authorities, policies, and programs than through 
Federal regulation wherever possible and practicable. Based on this 
philosophy, we believe that, in most cases, designation of tribal 
reservation lands as critical habitat provides very little additional 
benefit to threatened and endangered species. Conversely, such 
designation is often viewed by tribes as unwarranted and an unwanted 
intrusion into tribal self-governance, thus compromising the 
government-to-government relationship essential to achieving our mutual 
goal of managing for healthy ecosystems upon which the viability of 
threatened and endangered species populations depend.
    The exclusion of Agua Caliente Band of Cahuilla Indians and Morongo 
Band of Mission Indians reservation lands is likewise based on the 
importance of the government-to-government relationship with these 
Tribes, our conservation partnership with the Tribes, and their current 
management of tribal lands, as described in Martin (2011, pp. 1-2), 
Park (2011, pp. 1-11) and ACBCI (2010b).
    Please see the Exclusions Under Section 4(b)(2) of the Act--Tribal 
Lands section of this final rule for additional discussion.
    Comment 29: One commenter expressed concern that we have not 
considered whether nonparticipating agencies or special districts have 
the potential to interfere with the Coachella Valley MSHCP/NCCP 
permittees' ability to achieve the HCP's conservation goals and 
objectives, and that we have not provided an analysis of potential 
threats from noncovered activities to achieving the conservation goals 
of the Coachella Valley MSHCP/NCCP. The commenter feels that a 
legitimate balancing test must take these factors into account.
    Response to Comment 29: Lands that are not under the jurisdiction 
of the permittees of the Coachella Valley MSHCP/NCCP have not been 
excluded from this critical habitat designation and are, therefore, 
subject to the provisions of section 7 of the Act. We have not analyzed 
the potential for interference of nonpermittee entities with the 
implementation of the Coachella Valley MSHCP/NCCP because we believe 
such issues, if they arise, can be anticipated and managed by 
communicating and working with our partners in the Coachella Valley 
area.
    Comment 30: One commenter stated that permittees of the Coachella 
Valley MSHCP/NCCP should be relieved of critical habitat obligations as 
long as the plan is properly functioning, but that nonpermittees within 
the plan area should obtain no such benefits. The commenter asserted 
that giving nonparticipants a ``free ride'' is an incentive not to 
participate in large-scale HCP/NCCPs.
    Response to Comment 30: To our knowledge, we have not excluded any 
nontribal lands not explicitly covered by the Coachella Valley MSHCP/
NCCP from this critical habitat designation.
Comments Regarding the Economic Analysis
    Comment 31: One peer reviewer asserted that the economic impact 
assessment under section 4(b)(2) of the Act must take into account the 
large decline in land values that has occurred since 2005, especially 
in desert regions of California.
    Response to Comment 31: Presumably, the peer reviewer anticipated 
that the DEA would estimate the costs of the designation in terms of 
lost development opportunities, measured in terms of reduced land 
values. In fact, the analysis takes a slightly different approach. As 
described in Section 4.2 of the FEA, incremental project modifications 
resulting from the designation are unlikely in most areas, with the 
exception of unoccupied portions of Unit 3 in the City of Desert Hot 
Springs. Because the City does not yet have an approved HCP, we assume 
that, if development occurs in this area and a Federal nexus exists, 
project modification costs would be attributable to the designation. As 
a proxy for the cost of such project modifications, we use the per-
housing-unit mitigation fee currently required under the Coachella 
Valley MSHCP/NCCP. This value, as of 2012, is $1,254 per unit in low-
density residential developments and $5,600 per acre of commercial and 
industrial development. The MSHCP/NCCP mitigation fees, obtained 
directly from the Coachella Valley Association of Governments, 
represent the best available information regarding the unit cost of 
efforts to protect the plant.
    Comment 32: One commenter stated that in the event that the 
Riverside County Flood Control and Water Conservation District flood 
control systems are not excluded from the critical habitat designation 
from Astragalus lentiginosus var. coachellae, the Service's economic 
analysis of the revised critical habitat designation for A. l. var. 
coachellae will need to evaluate the potential direct and indirect 
adverse impacts to the existing Cabazon Channel, Chino Canyon Levee, 
Whitewater River Levee, Mission Creek Channel, and Desert Hot Springs 
Channel Line E facilities and surrounding areas that include but are 
not limited to: (1) Increased costs associated with species surveys and 
section 7 consultation process; (2) increased risk that the flood 
control systems may fail to provide the full measure of protection to 
the public as a result of lengthy section 7 consultation process and 
implementation of any mitigation requirements (e.g., avoidance, 
minimization, onsite/offsite compensatory, etc.) imposed through that 
process; (3) increased costs (e.g., increased flood insurance rates, 
etc.) imposed on the local community through the National Flood 
Insurance Program as a result of not meeting FEMA requirements; (4) 
potential damages to the communities that may result if critical 
maintenance activities are delayed; (5) additional costs associated 
with duplicate mitigation requirements; (6) potential conflicts between 
mitigation requirements and the associated existing flood control 
facilities; (7) the costs associated with amending the Coachella Valley 
MSHCP/NCCP; and (8) the consequential costs if the final rule negates 
the successful implementation of the Coachella Valley MSHCP/NCCP.
    Response to Comment 32: The Secretary is exercising his discretion 
to exclude all lands covered under the Coachella Valley MSHCP/NCCP, 
including Riverside County Flood Control and Water Conservation 
District lands, from this critical habitat designation (see Exclusions 
Under Section 4(b)(2) of the Act--Coachella Valley MSHCP/NCCP section 
above).
    Comment 33: Four commenters expressed concern regarding potential 
economic impacts the designation of critical habitat could have on wind 
energy firms located within the critical habitat designation.
    Response to Comment 33: Because the areas in question are occupied 
by Astragalus lentiginosus var. coachellae and any project in these 
areas with a Federal nexus would require consultation with the Service 
under

[[Page 10487]]

section 7 of the Act to address potential impacts to the taxon, the 
economic analysis for the critical habitat designation did not predict 
project modification costs to wind energy interests due to the 
designation of critical habitat, only the administrative costs of 
adding adverse modification analyses to these future section 7 
consultations. We, therefore, conclude that potential economic impacts 
to these wind energy interests will be small.
    Comment 34: One commenter stated that because the costs estimated 
in the DEA are low, there is no basis for economic exclusion of any of 
the areas proposed as critical habitat for Astragalus lentiginosus var. 
coachellae.
    Response to Comment 34: Based on the information presented in the 
Economic Analysis, the Secretary is not exercising his discretion to 
exclude any areas from this designation based on economic impacts (see 
Exclusions Based on Economic Impacts section above for more detailed 
discussion).
    Comment 35: One commenter expressed appreciation for the Service's 
clear separation of postdesignation baseline costs from the incremental 
future costs of designation in the DEA.
    Response to Comment 35: We thank the commenter for their review and 
comments.
    Comment 36: A comment provided on the DEA states that because the 
majority of the proposed critical habitat falls within the plan area of 
the Coachella Valley MSHCP/NCCP, section 7 consultation costs should be 
significantly streamlined. The comment suggests that, as a result, the 
DEA overestimates administrative impacts from the proposed revised 
designation.
    Response to Comment 36: The DEA relies on the best available 
information on administrative costs, compiled from interviews with 
Service staff, action agency staff, and private consultants. Although 
consultation costs may be streamlined for projects covered by the 
Coachella Valley MSHCP/NCCP that have a Federal nexus, each Federal 
action still requires consultation with the Service if the action may 
affect listed species or critical habitat. Therefore, to avoid 
underestimating the potential impacts of the designation, the DEA 
assumes the level of effort required for these consultations will be 
similar to effort associated with consultations undertaken for 
activities not covered by an HCP.
    Comment 37: One commenter asserts that the DEA fails to provide 
supporting data to justify the cost of section 7 consultations.
    Response to Comment 37: As described in Exhibit 2-2 of the DEA, the 
consultation cost model is based on data gathered from three Service 
field offices (including a review of consultation records and 
interviews with field office staff), telephone interviews with action 
agency staff (for example, BLM, Forest Service, U.S. Army Corps), and 
telephone interviews with private consultants who perform work in 
support of permittees. In the case of Service and Federal agency 
contacts, we determined the typical level of effort required to 
complete several different types of consultations (hours or days of 
time), as well as the typical General Schedule (GS) level of the staff 
member performing this work. In the case of private consultants, we 
interviewed representatives of firms in California and New England to 
determine the typical cost charged to clients for these efforts (for 
example, biological survey, preparation of materials to support a 
Biological Assessment). The model is periodically updated with new 
information received in the course of data collection efforts 
supporting economic analyses and public comment on more recent critical 
habitat rules. In addition, the GS rates are updated annually.
    Comment 38: One commenter states that incremental costs associated 
with the City of Desert Hot Springs are highly unlikely. This commenter 
states that costs are estimated for the development of lands located 
within the floodplain, which the City is unlikely to develop. 
Additionally, the commenter suggests that consultation may be unlikely 
because the City of Desert Hot Springs will soon be a permittee of the 
Coachella Valley MSHCP/NCCP. Therefore, the commenter asserts that 
future incremental costs are inflated.
    Response to Comment 38: The DEA accounts for the uncertainty 
associated with the potential for development within the floodplain by 
excluding these costs from the low estimate and including them in the 
high estimate. Our interview with City officials suggested that they 
would prefer to avoid development within the floodplain. However, 
because the City has no official restrictions preventing such 
development, such development is possible. Development projections for 
this area are based on Southern California Association of Governments 
growth forecasts. Until the City of Desert Hot Springs becomes a 
permittee of the Coachella Valley MSHCP/NCCP via a major amendment, 
these costs are considered incremental to the baseline. Because this 
amendment had not yet been finalized as of the time of the economic 
analysis, incremental costs are estimated. In addition, section 7 
consultation is still required for activities with a Federal nexus that 
are not covered under the Coachella Valley MSHCP/NCCP and may affect 
listed species or critical habitat, and, as a result, the potential for 
incremental impacts will still exist after the City of Desert Hot 
Springs becomes a permittee.
    Comment 39: One commenter states that the low estimate of 
administrative impacts, as described on Page 4-2 of the DEA, is not 
clearly attributed.
    Response to Comment 39: Section 4.8 of the DEA describes in detail 
the methodology used to estimate incremental administrative costs. The 
methodology involves projecting the consultation history from the past 
18 years forward. In particular, Exhibit 4-5 presents the projected 
number of consultations by economic activity and critical habitat unit. 
This exhibit notes which projected consultations--only those occurring 
on the Agua Caliente Reservation--are excluded from the low estimate. 
All other consultations are included in both the low and high 
estimates.
    Comment 40: According to a comment submitted by the Agua Caliente 
Band of Cahuilla Indians, the DEA incorrectly identifies the Tribal 
Habitat Conservation Plan (THCP) as a draft plan.
    Response to Comment 40: The Tribal Habitat Conservation Plan of the 
Agua Caliente Band of Cahuilla Indians is considered a ``draft'' plan 
because the Service has not issued an incidental take permit associated 
with this document under section 10(a)(1)(B) of the Endangered Species 
Act. Text has been added to the Final Economic Analysis (FEA) to 
clarify this assertion. Additionally, the FEA notes that the Tribe 
considers this plan a Tribal-approved, final document and implements it 
as such for land-use planning on all Reservation lands, despite having 
withdrawn the request for a section 10(a)(1)(B) incidental take permit.
    Comment 41: According to a comment submitted by the Agua Caliente 
Band of Cahuilla Indians, the DEA incorrectly states the size of the 
Agua Caliente Indian Reservation.
    Response to Comment 41: The acreage reported in the DEA is taken 
from the following reference: Tiller, Veronica E. Velarde. ``Tiller's 
Guide to Indian Country: Economic Profiles of American Indian 
Reservations.'' Bow Arrow Publishing Company, 2005 (364). Based on 
updated information provided by the Tribe in this comment, the FEA 
corrects the acreage of the Reservation to 31,500 acres.

[[Page 10488]]

    Comment 42: One comment submitted by the Agua Caliente Band of 
Cahuilla Indians states that in paragraph 160, the DEA incorrectly 
identifies the Tribe as the party that engaged in consultation with the 
Service for three previous projects.
    Response to Comment 42: The text has been revised in the FEA to 
correctly indicate that the Bureau of Indian Affairs, and not the 
Tribe, engaged directly in consultation with the Service for past 
projects occurring on Agua Caliente Reservation land.
    Comment 43: One commenter states that the DEA fails to include 
consideration of benefits resulting from the designation of critical 
habitat. In particular, this commenter suggests that the DEA fails to 
quantify ancillary benefits including the protection and improvement of 
water quality; preservation of natural habitat to benefit other 
species; and prevention of development in flood-prone areas, despite 
existing economic literature monetizing these benefits. This commenter 
suggests that these benefits should be assessed and quantified where 
possible or otherwise included in a detailed qualitative analysis.
    Response to Comment 43: The primary purpose of this critical 
habitat designation is to support the conservation of Astragalus 
lentiginosus var. coachellae. As described in Chapter 5 of the DEA, 
quantification and monetization of this conservation benefit requires 
information on the incremental change in the probability of 
conservation resulting from the designation. Such information is not 
available, and, as a result, monetization of the primary benefit of 
critical habitat designation is not possible.
    Other ancillary benefits of the designation may include: Increased 
residential property values adjacent to preserved habitat; increased 
recreational opportunities; preservation of habitat for other species; 
and improvements in water quality, among others. Although economic 
literature does exist that monetizes similar benefits, these studies 
are necessarily site-specific. For example, using benefits transfer 
techniques to estimate changes in residential property value based on 
the existing economic literature would require knowledge of the 
characteristics of the specific lands preserved as a result of the 
designation of critical habitat, including proximity to residential 
properties and the amount of existing open space in the area. Without 
knowing where lands will be preserved (for example, through mitigation 
fees) as a result of this designation, it is impossible to estimate 
such benefits. Similarly, quantifying benefits associated with improved 
water quality would require information regarding baseline water 
quality, hydrologic and chemical modeling to estimate changes in water 
quality, and risk analysis to determine avoided human health risk based 
on changes to water quality. These types of analyses are beyond the 
scope of the DEA. As a result, benefits associated with the designation 
of critical habitat are discussed qualitatively.
    Comment 44: One commenter expresses concern that the designation of 
critical habitat may impact routine maintenance and operations of the 
Colorado River Aqueduct on Metropolitan Water District of Southern 
California (MWD) lands. These activities may include aqueduct 
inspection and cleaning, replacement and rebuilding of infrastructure, 
and maintenance of patrol and access roads. Additionally, the comment 
mentions an upcoming mine pit reclamation project on MWD lands that may 
be affected by the designation of critical habitat.
    Response to Comment 44: As of the time of publication of the DEA, 
we were unable to confirm with MWD the types of activities ongoing or 
planned for these lands. However, in information subsequently provided, 
MWD states that routine maintenance and operations of the Colorado 
River Aqueduct do not require the involvement of a Federal agency. As a 
result, activities associated with the Colorado River Aqueduct are 
unlikely to have a nexus for section 7 consultation. Incremental 
impacts are therefore not anticipated to result from these activities. 
The mine pit reclamation project may have a Federal nexus for 
consultation through the U.S. Army Corps of Engineers Clean Water Act 
section 404 permitting process. The FEA has been revised to incorporate 
new information on MWD activities in these areas, as provided in the 
public comment and the information received subsequent to the 
submission of the DEA. Administrative impacts are estimated for these 
MWD activities in the FEA.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The Office 
of Information and Regulatory Affairs has determined that this rule is 
not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must 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 (small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the RFA to require Federal agencies to provide a certification 
statement of the factual basis for certifying that the rule will not 
have a significant economic impact on a substantial number of small 
entities. In this final rule, we are certifying that the critical 
habitat designation for Astragalus lentiginosus var. coachellae will 
not have a significant economic impact on a substantial number of small 
entities. The following discussion explains our rationale.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than

[[Page 10489]]

$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 on these small entities are significant, we consider the types 
of activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (e.g., 
residential, commercial, and industrial development; water management 
and use; transportation activities; energy development; sand and gravel 
mining; and Tribal activities). We apply the ``substantial number'' 
test individually to each industry to determine if certification is 
appropriate. However, the SBREFA does not explicitly define 
``substantial number'' or ``significant economic impact.'' 
Consequently, to assess whether a ``substantial number'' of small 
entities is affected by this designation, this analysis considers the 
relative number of small entities likely to be impacted in an area. In 
some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities authorized, 
funded, or carried out by Federal agencies. Some activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. In areas where the species is present, 
Federal agencies already are required to consult with us under section 
7 of the Act on activities they authorize, fund, or carry out that may 
affect Astragalus lentiginosus var. coachellae. Federal agencies also 
must consult with us if their activities may affect critical habitat. 
Designation of critical habitat, therefore, could result in an 
additional economic impact on small entities due to the requirement to 
reinitiate consultation for ongoing Federal activities (see Application 
of the ``Adverse Modification Standard'' section).
    In our final economic analysis of the critical habitat designation, 
we evaluated the potential economic effects on small business entities 
resulting from conservation actions related to the listing of 
Astragalus lentiginosus var. coachellae and the designation of critical 
habitat. The analysis is based on the estimated impacts associated with 
the rulemaking as described in Chapters 1 through 4 and Appendix A of 
the analysis and evaluates the potential for economic impacts related 
to: (1) Residential, commercial, and industrial development; (2) water 
management and use; (3) transportation activities; (4) energy 
development; (5) sand and gravel mining; and (6) Tribal activities.
    Estimated incremental impacts of this critical habitat designation 
consist primarily of additional administrative cost of considering 
adverse modification during section 7 consultation and incremental 
project modification costs resulting from activities not covered under 
the Coachella Valley MSHCP/NCCP. The Service and the action agency are 
the only entities with direct compliance costs associated with this 
critical habitat designation, although small entities may participate 
in section 7 consultation as a third party. It is, therefore, possible 
that the small entities may spend additional time considering critical 
habitat during section 7 consultation for Astragalus lentiginosus var. 
coachellae. The FEA indicates that the incremental impacts potentially 
incurred by small entities are limited to development activities.
    The FEA estimates annualized project modification costs of 
approximately $52,000 in Unit 3, and annualized third party 
administrative costs ranging from $156 to $263, depending on whether a 
consultation is formal or informal and whether the project location is 
considered occupied or unoccupied, distributed across all four units. 
Because information on the number of projects or developers likely to 
be affected is not available, the FEA assumes that a single developer 
bears all costs associated with growth in proposed revised critical 
habitat. Under this assumption, $52,260 in incremental costs would 
accrue to one developer per year. Assuming the average small entity has 
annual revenues of approximately $5.1 million, this annualized impact 
represents approximately one percent of annual revenues. The assumption 
that all costs accrue to one developer likely overstates the impact 
significantly; thus, we estimate incremental impacts to small 
developers of less than one percent of annual revenues.
    The FEA also concludes that none of the governmental entities with 
which the Service might consult on Astragalus lentiginosus var. 
coachellae for water management and use, transportation, mining, energy 
development, or Tribal activities meet the definitions of small as 
defined by the Small Business Administration (SBA) (IEc 2012, p. A-4-A-
5); therefore, impacts to small governmental entities due to 
transportation and habitat management activities are not anticipated.
    In summary, we considered whether this designation would result in 
a significant economic effect on a substantial number of small 
entities. Based on the above reasoning and currently available 
information, we concluded that this rule would not result in a 
significant economic impact on a substantial number of small entities. 
Therefore, we are certifying that the designation of critical habitat 
for Astragalus lentiginosus var. coachellae will not have a significant 
economic impact on a substantial number of small entities, and a 
regulatory flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration.
    The economic analysis finds that none of these criteria are 
relevant to this analysis. Thus, based on information in the economic 
analysis, energy-related impacts associated with Astragalus 
lentiginosus var. coachellae conservation activities within critical 
habitat are not expected. As such, the designation of critical habitat 
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:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal

[[Page 10490]]

intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because it would not produce a Federal mandate 
of $100 million or greater in any year; that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The FEA concludes incremental impacts may occur due to 
administrative costs of section 7 consultations for development, 
transportation, and flood control projects activities; however, these 
are not expected to significantly affect small governments. Incremental 
impacts stemming from various species conservation and development 
control activities are expected to be borne by the Federal Government, 
State agencies, local water and flood control districts, and wind 
energy and mining companies that are not considered small governments. 
Consequently, we do not believe that the critical habitat designation 
would significantly or uniquely affect small government entities. As 
such, a Small Government Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we analyzed the potential takings implications of 
designating critical habitat for Astragalus lentiginosus var. 
coachellae in a takings implications assessment. As discussed above, 
the designation of critical habitat affects only Federal actions. 
Although private parties that receive Federal funding, assistance, or 
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. The takings 
implications assessment concludes that this designation of critical 
habitat for Astragalus lentiginosus var. coachellae does not pose 
significant takings implications for lands within or affected by the 
designation.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this rule 
does not have significant Federalism effects. A federalism impact 
summary statement is not required. In keeping with Department of the 
Interior and Department of Commerce policy, we requested information 
from, and coordinated development of, this critical habitat designation 
with appropriate State resource agencies in California. We did not 
receive comments from State agencies. The designation of critical 
habitat in areas currently occupied by Astragalus lentiginosus var. 
coachellae may impose nominal additional regulatory restrictions to 
those currently in place and, therefore, is expected to have little 
incremental impact on State and local governments and their activities. 
The designation may have some benefit to these governments in that the 
areas that contain the physical or biological features essential to the 
conservation of the species are more clearly defined, and the elements 
of the features of the habitat necessary to the conservation of the 
species are specifically identified. This information does not alter 
where and what federally sponsored activities may occur. However, it 
may assist local governments in long-range planning (rather than having 
them wait for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the applicable 
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are 
designating critical habitat in accordance with the provisions of the 
Act. This final rule identifies the elements of physical or biological 
features essential to the conservation of the Astragalus lentiginosus 
var. coachellae within the designated areas to assist the public in 
understanding the habitat needs of the species. The designated areas of 
critical habitat are presented on maps, and the rule provides several 
options for the interested public to obtain more detailed information, 
if desired.

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 of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose

[[Page 10491]]

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 (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (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), E.O. 13175, and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    In the proposed revisions to critical habitat published in the 
Federal Register on August 25, 2011 (76 FR 53224), we proposed 
approximately 316 ac (128 ha) in Unit 1 within the boundary of the 
Morongo Band of Mission Indians Reservation, and 580 ac (235 ha) in 
Unit 2 within the boundary of the Agua Caliente Band of Cahuilla 
Indians Reservation, as critical habitat for Astragalus lentiginosus 
var. coachellae. We worked directly with the tribes to determine 
economic and other burdens expected to result from critical habitat 
designation on tribal lands, and as a result of information exchanged 
and in consideration of impacts to our government-to-government 
relationship with tribes and our current and future conservation 
partnerships, the Secretary is exercising his discretion to exclude all 
lands within tribal reservation boundaries meeting the definition of 
critical habitat for Astragalus lentiginosus var. coachellae from this 
final revised designation under section 4(b)(2) of the Act (see 
Exclusions Under Section 4(b)(2) of the Act--Tribal Lands section 
above).

References Cited

    A complete list of all references cited is available on the 
Internet at http://www.regulations.gov and upon request from the 
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Author(s)

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

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    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; 1531-1544; and 4201-4245, 
unless otherwise noted.


0
2. Amend Sec.  17.12(h) by revising the entry for ``Astragalus 
lentiginosus var. coachellae'' under Flowering Plants in the List of 
Endangered and Threatened Plants to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

[[Page 10492]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name                Common name                                                                               habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                                                                      * * * * * * *
Astragalus lentiginosus var.       Coachella Valley      U.S.A. (CA)........  Fabaceae...........  E                       647     17.96(a)           NA
 coachellae.                        milk-vetch.
 
                                                                      * * * * * * *
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.96(a) by revising the entry for ``Astragalus 
lentiginosus var. coachellae (Coachella Valley milk-vetch)'' 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)

    (1) Critical habitat units are depicted for Riverside County, on 
the maps below.
    (2) Within these areas, the primary constituent element of the 
physical or biological features essential to the conservation of 
Astragalus lentiginosus var. coachellae consists of sand formations 
associated with the sand transport system in Coachella Valley, 
California. These sand formations have the following features:
    (i) They are active sand dunes, stabilized or partially stabilized 
sand dunes, active or stabilized sand fields (including hummocks 
forming on leeward sides of shrubs), ephemeral sand fields or dunes, 
and fluvial sand deposits on floodplain terraces of active washes.
    (ii) They are found within the fluvial sand depositional areas, and 
the aeolian sand source, transport, and depositional areas of the sand 
transport system.
    (iii) They comprise sand originating in the hills surrounding 
Coachella Valley and alluvial deposits at the base of the Indio Hills, 
which is moved into the valley by water (fluvial transport) and through 
the valley by wind (aeolian transport).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
March 15, 2013.
    (4) Critical habitat map units. Data layers defining map units were 
created using a base of U.S. Geological Survey 7.5' quadrangle maps. 
Critical habitat units were then mapped using Universal Transverse 
Mercator (UTM) zone 11, North American Datum (NAD) 1983 coordinates. 
The maps in this entry, as modified by any accompanying regulatory 
text, establish the boundaries of the critical habitat designation. The 
coordinates or plot points or both on which each map is based are 
available to the public at the Service's Internet site, http://www.fws.gov/carlsbad/GIS/CFWOGIS.html, http://www.regulations.gov at 
Docket No. FWS-R8-ES-2011-0064, and at the field office responsible for 
this designation. You may obtain field office location information by 
contacting one of the Service regional offices, the addresses of which 
are listed at 50 CFR 2.2.
BILLING CODE 4310-55-P
    (5) Note: Index map of four critical habitat units designated for 
Astragalus lentiginosus var. coachellae follows:

[[Page 10493]]

[GRAPHIC] [TIFF OMITTED] TR13FE13.008

    (6) Unit 1: San Gorgonio River/Snow Creek System.
    (i) Note: Map of Unit 1 follows:

[[Page 10494]]

[GRAPHIC] [TIFF OMITTED] TR13FE13.009

    (7) Unit 2: Whitewater River System.
    (i) Note: Map of Unit 2 follows:

[[Page 10495]]

[GRAPHIC] [TIFF OMITTED] TR13FE13.010

    (8) Unit 3: Mission Creek/Morongo Wash System.
    (i) Note: Map of Unit 3 follows:

[[Page 10496]]

[GRAPHIC] [TIFF OMITTED] TR13FE13.011

    (9) Unit 4: Thousand Palms System.
    (i) Note: Map of Unit 4 follows:

[[Page 10497]]

[GRAPHIC] [TIFF OMITTED] TR13FE13.012

* * * * *

    Dated: February 1, 2013.
Michael J. Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and 
Parks.
[FR Doc. 2013-03109 Filed 2-12-13; 8:45 am]
BILLING CODE 4310-55-C