Federal Register: December 27, 2006 (Volume 71, Number 248)
DOCID: FR Doc 06-9794
DEPARTMENT OF THE INTERIOR
U.S. Citizenship and Immigration Services
CFR Citation: 50 CFR Part 17
RIN ID: RIN 1018-AU45
NOTICE: Part III
DOCUMENT ACTION: Final rule.
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Astragalus ampullarioides (Shivwits milk-vetch) and Astragalus holmgreniorum (Holmgren milk-vetch)
DATES: This rule becomes effective on January 26, 2007.
We, the U.S. Fish and Wildlife Service (Service), are designating critical habitat for two endangered plants, Astragalus ampullarioides (Shivwits milkvetch) and Astragalus holmgreniorum (Holmgren milkvetch) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 6,289 acres (ac) (2,545 hectares (ha)) fall within the boundaries of the critical habitat designation for A. holmgreniorum in Mohave County, Arizona, and Washington County, Utah, and approximately 2,181 ac (883 ha) fall within the boundaries of the critical habitat designation for A. ampullarioides in Washington County, Utah.
Interior Department, Fish and Wildlife Service,
Role of Critical Habitat in Actual Practice of Administering and Implementing the Endangered Species Act (16 U.S.C. 1531 et seq.)
Attention to and protection of habitat is paramount to successful conservation actions. However, the role that designation of critical habitat plays in protecting habitat of listed species is often misunderstood. As discussed in more detail below in the discussion of exclusions under section 4(b)(2) of the Act, there are significant limitations on the regulatory effect of critical habitat designation under section 7(a)(2) of the Act. In brief, (1) Designation provides additional protection to habitat only where there is a Federal nexus; (2) the protection is relevant only when, in the absence of designation, destruction or adverse modification of the critical habitat would in fact take place (in other words, other statutory or regulatory protections, policies, or other factors relevant to agency decisionmaking would not prevent destruction or adverse modification); and (3) designation of critical habitat triggers the prohibition of destruction or adverse modification of that habitat, but it does not require specific actions to restore or improve habitat.
Currently, only 475 species, or 36 percent of the 1,310 listed species in the United States under the jurisdiction of the Service, have designated critical habitat. We address the habitat needs of all 1,310 listed species through conservation mechanisms such as listing, section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the States, the section 10 incidental take permit process, and cooperative, nonregulatory efforts with private landowners. The Service believes that it is these measures that may make the difference between extinction and survival for many species.
In considering exclusions of areas originally proposed for designation, we evaluated the benefits of designation in light of Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service. In that case, the Ninth Circuit invalidated the Service's regulation defining ``destruction or adverse modification of critical habitat.'' In response, on December 9, 2004, the Director issued guidance to be considered in making section 7 adverse modification determinations. This critical habitat designation does not use the invalidated regulation in our consideration of the benefits of including areas in this final designation. The Service will carefully manage future consultations that analyze impacts to designated critical habitat, particularly those that appear to be resulting in an adverse modification determination. Such consultations will be reviewed by the Regional Office prior to finalizing to ensure that an adequate analysis has been conducted that is informed by the Director's guidance.
On the other hand, to the extent that designation of critical habitat provides protection, that protection can come at significant social and economic cost. In addition, the mere administrative process of designating of critical habitat is expensive, timeconsuming, and controversial. The current statutory framework of critical habitat, combined with past judicial interpretations of the statute, make critical habitat the subject of excessive litigation. As a result, critical habitat designations are driven by litigation and courts rather than biology, and made at a time and under a timeframe that limits our ability to obtain and evaluate the scientific and other information required to make the designation most meaningful.
In light of these circumstances, the Service believes that
additional agency discretion would allow our focus to return to those
actions that provide the greatest benefit to the species most in need of protection.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an everincreasing series of court orders and courtapproved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, the Service's own proposals to list critically imperiled species, and final listing determinations on existing proposals are all significantly delayed.
The accelerated schedules of courtordered designations have left
the Service with limited ability to provide for public participation or
to ensure a defectfree rulemaking process before making decisions on
listing and critical habitat proposals, due to the risks associated
with noncompliance with judicially imposed deadlines. This in turn
fosters a second round of litigation in which those who fear adverse
impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless, and is very
expensive, thus diverting resources from conservation actions that may provide
relatively more benefit to imperiled species.
The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects and the cost of requesting and responding to public comment, and in some cases the costs of compliance with the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.). These costs, which are not required for many other conservation actions, directly reduce the funds available for direct and tangible conservation actions.
Our intent is to discuss only topics directly relevant to the designation of critical habitat in this final rule. For more information on Astragalus holmgreniorum and A. ampullarioides, refer to the final listing rule published in the Federal Register (66 FR 49560, September 28, 2001) and the proposed critical habitat rule published in the Federal Register (71 FR 15966, March 29, 2006).
Previous Federal Actions
On March 29, 2006, we published a proposed rule to designate critical habitat for Astragalus holmgreniorum and A. ampullarioides (71 FR 15966). The public comment period was open for 60 days until May 30, 2006. On September 26, 2006, we published a revised proposed rule in the Federal Register, and issued a press release that announced the reopening of the public comment period on the proposed rule, and the availability of the draft economic analysis, draft environmental assessment, and revisions to proposed critical habitat boundaries for A. holmgreniorum and A. ampullarioides (71 FR 56085). The comment period was open for an additional 30 days until October 26, 2006.
Concurrently, we have been working on the recovery plan for these two plant species. We published a notice of availability, and request for comments, for the draft recovery plan for Astragalus holmgreniorum and A. ampullarioides on August 1, 2006 (71 FR 57557). On September 29, 2006, we announced the availability of the final recovery plan (71 FR 57557).
Summary of Comments and Recommendations
We requested written comments from the public on the proposed designation of critical habitat for Astragalus holmgreniorum and A. ampullarioides in the proposed rule published on March 29, 2006 (71 FR 15966). We also contacted appropriate Federal, State, and local agencies; tribes; scientific organizations; and other interested parties and invited them to comment on the proposed rule.
We received 17 written comments on the proposal published on March 29, 2006 (71 FR 15966). These included responses from five peer reviewers, three Federal agencies, and nine organizations or individuals. During the comment period on the revised proposed rule (71 FR 56085) that opened on September 26, 2006, and closed on October 26, 2006, we received two comments pertaining to the revised proposed rule, draft economic analysis, draft environmental assessment, and revisions to proposed critical habitat boundaries. Including all comments received during both comment periods, 10 commenters supported the designation of critical habitat for Astragalus holmgreniorum and A. ampullarioides, and 1 opposed the designation. However, some of the supporting commenters disagreed with specific portions of the proposed designation, such as the acreage or delineation of individual critical habitat units. Eight letters included comments or information, but did not express support or opposition to the proposed critical habitat designation. Comments received were grouped into several general issues specifically relating to the proposed critical habitat designation for A. holmgreniorum and A. ampullarioides and are addressed in the following summary and incorporated into the final rule as appropriate. We did not receive any requests for a public hearing.
In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited independent opinions on the proposed critical habitat designation for Astragalus holmgreniorum and A. ampullarioides from eight knowledgeable individuals who have expertise with the species, the geographic region where the species occurs, and conservation biology principles. We received comments from five of the peer reviewers. The peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve this final critical habitat designation.
We reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding critical habitat, and associated draft economic analysis, for Astragalus holmgreniorum and A. ampullarioides. Substantive comments received have been addressed below, or incorporated into this final rule as appropriate.
Peer Review Comments
Comment 1: One peer reviewer noted that the level of detail included in the rule for the two species was inconsistent, and that exotic species were not addressed for Astragalus holmgreniorum.
Response: We examined the Background section of the proposed rule to designate critical habitat (71 FR 15966) and found that information was presented in equivalent amounts for both species, which included population size, structure, and habitat characteristics. However, information on exotic species associated with Astragalus holmgreniorum was inadvertently left out. Exotic species associated with Holmgren milkvetch are Bromus rubens (red brome), Erodium cicutarium (storksbill), Malcomia africana (African mustard), and Bromus tectorum (cheatgrass) (Van Buren and Harper 2003a, p. 240). The threat of invasive weeds is addressed in the Special Management Considerations or Protections section of this rule.
Comment 2: One peer reviewer (and several public commenters) questioned why we did not include the known occurrence of Astragalus holmgreniorum found north of Atkinville Wash and west of I15, near the I15 interchange with the proposed southern corridor, and presented information on the size and characteristics of the population that the peer reviewer thought supported its inclusion in critical habitat.
Response: We did not include this area (which is north of the State Line Subunit 1a) because a natural wash separates it from other populations and much of the surrounding area, it lacks the Primary Constituent Elements (PCEs) due to differing soil type, and because of high human impacts due to concentrated offroad vehicle (ORV) use. Adjacent housing development to the west and south, and I15 to the east, further compromise its ability to be selfsustaining. Critical habitat contributes to the overall conservation of listed species, but it is not the intent of the Act to designate critical habitat for every population or occurrence of a listed species. Critical habitat designations do not signal that habitat outside the designation is unimportant or may not contribute to recovery.
Comment 3: One peer reviewer expressed concern that the proposed
critical habitat did not adequately address groundnesting pollinators and expressed an opinion that preserving
pollinator nesting sites, or areas where bees are known to nest, was important in the designation of critical habitat.
Response: Our designation of critical habitat for Astragalus holmgreniorum and A. ampullarioides is based solely on their conservation needs. This rule does not designate critical habitat for pollinator species. However, pollinators are one of the PCEs necessary for the conservation of the two plant species, and the critical habitat unit boundaries were drawn to include sufficient acreage to accommodate habitat for pollinators. Thus, we expect the designation to afford protection to groundnesting pollinators in proximity to the A. holmgreniorum and A. ampullarioides populations included in this final designation. We include additional information on pollinators in the Special Management Considerations and Protections (Special Management) section of this rule.
Comment 4: One peer reviewer inquired about the impact of cattle on groundnesting bees.
Response: We have no information in our files quantifying or qualifying the impact of cattle to groundnesting bees. However, some aspects of livestock grazing, such as soil compaction and reduction of flowering vegetation, could be a concern for groundnesting bees. These activities similarly may limit the full and natural development of Astragalus holmgreniorum and A. ampullarioides and were considered under the Special Management section of the proposed rule (71 FR 15974 15976, March 29, 2006).
Comment 5: One peer reviewer stated that the use of the National Vegetation Classification System (NVCS) does not sufficiently identify habitat types for Astragalus holmgreniorum.
Response: The NVCS is a systematic approach to classifying a continuum of natural vegetation nationwide. We included this information in the proposed designation because it allows land managers to assess the appropriate vegetation layer for Astragalus holmgreniorum on a Geological Information System and eliminate areas where the species is unlikely to reside. However, we did not rely on this information to define PCEs.
Comment 6: One peer reviewer stated that Subunit 1a includes lands that are not occupied or are of marginal quality for Astragalus holmgreniorum.
Response: All lands proposed for critical habitat are occupied, including Subunit 1a. Lands within Subunit 1a contain the PCEs for Astragalus holmgreniorum, and the plants occur in a patchy distribution throughout the unit. Therefore, we are including the entire subunit in this final critical habitat designation, as directed under 50 CFR 424.12(d).
Comment 7: One peer reviewer disagreed with the statement pertaining to Unit 1a that the I15 rightofway may allow pollinator flow between sites situated west and east of the highway, and pointed out that, although pollinators may travel between sites west and east of I15, it seems likely that collisions with vehicles may be a serious drain on pollinator resources. The peer reviewer asked us to contact Dr. Tepedino, a bee biologist, about the ability of pollinators to successfully navigate I15.
Response: Although pollinators are likely to be killed by vehicles, neither we nor bee biologist Dr. Tepedino are aware of any information or ability to quantify pollinator mortality from vehicle collisions, except that mortality is likely to increase with the velocity of the vehicles.
Comment 8: One peer reviewer recommended that we reduce the size of the Zion National Park Unit (Unit 5 for Astragalus ampullarioides) to only include the immediate area bordering the Chinle Trail at the south end of the occurrence where horses and hikers may trample plants and create erosion, because other areas within the unit were not subject to threats.
Response: When determining which areas to include as critical habitat, we consider habitats that include the physical and biological features essential to the conservation of the species and that require special management considerations or protection. We have determined that the north end of the Zion Unit requires protection from many of the types of impacts that are affecting the south end of the unit, such as invasive nonnative weeds (71 FR 1598015981, March 29, 2006).
Comment 9: One peer reviewer responded to our request for comments concerning the inclusion of occupied habitat for the milkvetches found in intervening areas of I15 (i.e., between the northbound and southbound lanes, and within the highway rightofway but outside the highway prism). The peer reviewer stated that the inclusion of occupied sites for Astragalus ampullarioides within the I15 median is valuable because they are a significant part of the population, they are healthy, and management would not interfere with established protocols for highway management.
Response: We included the I15 site identified by the peer reviewer in this final designation. Also, in the Criteria to Identify Critical Habitat section, we provide additional information on the areas included in the designation to guide highway management.
Comment 10: One peer reviewer stated that protecting and preserving habitat on private and State lands enhances property values.
Response: We are unable to confirm that critical habitat designation enhances property values on private and State land, but we do know that property values have been enhanced adjacent to other open space in the county, e.g., Red Cliffs Desert Reserve. Our critical habitat designation is based solely on the provisions of section 4 of the Act; neither enhancing property values nor protecting open space is a basis for designating critical habitat.
Comment 11: One peer reviewer suggested that we increase the size of our critical habitat units to create a buffer from the effects of development on adjacent lands and recreational use of these areas.
Response: We share the concern about the effects of development and unregulated recreational use on critical habitat and addressed both impacts in the Special Management section of the proposed rule (71 FR 1597415976, March 24, 2006). We are designating the critical habitat units at a scale to maintain the populations and primary constituent elements essential to the conservation of the species per section 3(5)(A) of the Act and regulations at 50 CFR 424.12.
Comment 12: One peer reviewer stated that future management of the habitat currently administered by Arizona and Utah State Lands Departments will be critical for the survival of Astragalus holmgreniorum.
Response: All lands included in the critical habitat designation are important to the conservation of Astragalus holmgreniorum and A. ampullarioides.
Comment 13: One peer reviewer questioned how Subunit 2b for Astragalus holmgreniorum will be conserved under section 7 of the Act given the statement in the proposed rule that the Bureau of Land Management (BLM) is currently working with Santa Clara City to sell this land for development purposes.
Response: Under section 7(a)(2) of the Act, all Federal agencies
are required to ensure that any action they fund, authorize, or carry
out is not likely to destroy or adversely modify critical habitat.
Thus, BLM must ensure that its actions do not adversely modify or
destroy critical habitat contained in Subunit 2b. The key factor
related to the adverse modification determination is whether, with implementation of the
proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the PCEs to function) to serve the intended conservation role for the species (Jones 2004). We understand that BLM is working on alternatives for retaining ownership of the South Hills population of Astragalus holmgreniorum (Douglas 2006).
Comment 14: In response to our statement, on pages 15968 and 15970 of the proposed rule, that ``species may move from one area to another over time,'' one peer reviewer noted that known populations of Astragalus holmgreniorum occur in the same locations observed decades ago. Movements are more accurately described as a shift in population density in areas where suitable habitat occurs. In regard to A. holmgreniorum, if there are no major changes in hydrological patterns, one would not expect much movement of the population.
Response: Populations of Astragalus holmgreniorum are being monitored in the same areas where they were observed decades ago, and this information is considered in this final rule. Although the establishment of new occupied areas may be rare, and the migration of seeds is likely to be localized, a new and independent establishment could result from arrival of a single seed (Epling and Lewis 1952, p. 264).
We received 12 public comments in response to our request for additional information in the proposed designation of critical habitat for Astragalus holmgreniorum and A. ampullarioides (71 FR 15966, March 29, 2006). Responses that contained new, updated, or additional information were considered in this final rule. We consolidated the comments into several categories. Some public comments were addressed in the previous section's peer reviewer comments.
Comments Related to Adequacy of Units Proposed
Comment 15: One commenter stated that the critical habitat designation is inadequate because it is only established where the plants currently exist. Suitable habitat encompasses the larger landscape. The critical habitat designation fails in its purpose of facilitating recovery because it does not protect this larger area or provide connectivity between populations.
Response: Critical habitat contributes to the overall conservation of listed species, but it is not the intent of the Act to designate critical habitat for every population or occurrence of a listed species. In the Criteria Used to Identify Critical Habitat section of the proposed and final critical habitat rules, we describe the parameters used for delineating areas that contain the physical and biological features essential to the conservation of Astragalus holmgreniorum and A. ampullarioides, as required by the definition of critical habitat when considering areas occupied at the time of listing. We recognize that surveys to confirm the presence of A. holmgreniorum and A. ampullarioides populations have not occurred everywhere throughout the species' range. However, we determined that occupied areas containing the features essential to the conservation of these species support the majority of known locations (see the Criteria Used to Identify Critical Habitat section below). As a result of our methods, we found that the additional areas suggested by commenters were not essential to the conservation of A. holmgreniorum and A. ampullarioides.
We also considered landscape issues when designing units to provide continuous habitat for reproduction, germination, seed dispersal, and pollination. Many units or subunits were designated by combining known occurrences and providing connectivity.
Comment 16: One commenter noted that designating critical habitat that is separate, isolated, and fragmented will foment the eventual extinction of these populations.
Response: The best available scientific information (71 FR 15966, March 29, 2006) does not support this concern. We have designated critical habitat for Astragalus holmgreniorum and A. ampullarioides in accordance with the Act. We have determined that the areas included in the designation are essential to the conservation of the two species. Many natural features separating the units, such as watersheds, land formations, and soil types, are unable to support the species. Comments on Size and Areas To Be Included or Excluded
Comment 17: Several commenters recommended that units that were close to each other be combined to provide connectivity for gene flow. Others provided reasons for designating larger areas, such as edge effects, current fragmentation, anticipated future fragmentation, chemical herbicide use, range of pollinator flights, invasive species, ORV trails, and recreational use. One commenter suggested that additional critical habitat for Astragalus holmgreniorum should be provided in Arizona to help offset all of the impacts that are occurring in Utah.
Response: In delineating critical habitat, we considered hydrology for seed dispersal, soils for suitable habitat, elevation changes, and relief to determine range and amount of suitable habitat. We also considered existing natural and humancaused barriers to dispersal. As indicated in the process described in the proposal (also see Criteria Used to Identify Critical Habitat below), we have defined milkvetch recovery populations in a manner that is consistent with the Act and our regulations at 50 CFR 424.12. The milkvetch populations may appear close together on the maps, but in most cases known sites are separated by 1 mile (mi) (1.6 kilometers (km)) or more, which greatly decreases the expectation of frequent intersite pollination. Critical habitat is designated in both Arizona and Utah due to occupied habitat containing the appropriate PCEs.
Comment 18: Several commenters supported intervening lands of I15 being designated for Astragalus holmgreniorum and A. ampullarioides.
Response: Intervening lands of I15 are designated in this final rule. Additional information was incorporated into the Criteria to Identify Critical Habitat section below.
Comment 19: One commenter recommended that we adjust the western boundary of Unit 1 for Astragalus ampullarioides to eliminate the inclusion of an existing mining operation.
Response: The mining operation is outside both the proposed and final critical habitat boundaries.
Comment 20: One commenter recommended that we adjust the southeast corner of Unit 4a for Astragalus ampullarioides to include only the west side of Harrisburg Ridge, because the east side is not part of the watershed.
Response: We did not exclude the east side of Harrisburg Ridge. The critical habitat designation includes areas outside the watershed that are necessary (e.g., they provide adequate supply of pollinators) to support the reproductive success of Astragalus ampullarioides.
Comment 21: BLM recommended an adjustment of Astragalus holmgreniorum Units 2a (Stucki Springs), and 2b (South Hills) to better reflect occurrence and habitat based on 2006 surveys.
Response: We announced these proposed changes in our revised
proposed rule and requested public comment on them (71 FR 56085, [[Page 77976]]
September 26, 2006). The changes are incorporated into this final rule.
Comment 22: One commenter recommended that we remove private lands or isolated Federal lands from Astragalus holmgreniorum Subunit 2b and Unit 3, and A. ampullarioides Unit 3, in order to designate only areas of private and State lands that have some potential to transfer to BLM ownership, or some other means of preservation. Another commenter expressed that land ownership should not be a consideration of determining critical habitat, and included a rationale based on lack of economic impacts on private lands.
Response: All the lands proposed for critical habitat contain the features essential for the conservation of Astragalus holmgreniorum and A. ampullarioides regardless of ownership. In our final designation, we considered economic factors for both public and private lands. We determined that economic costs did not outweigh the benefits of designation for any of the proposed lands. However, we did exclude lands of the Shivwits Band of Paiute Indians (Tribe) based on a conservation agreement with the Tribe (see the Relationship of Critical Habitat to Tribal Lands section below).
Comments Providing Recommendations on Pollinators
Comment 23: One commenter recommended larger unit sizes to conserve the most effective pollinators, which the commenter stated are the medium to largesized pollinators.
Response: Our goal for the critical habitat designation is to include sufficient pollinator habitat and sufficient pollinator populations for the reproduction of Astragalus holmgreniorum and A. ampullarioides. We based our minimum unit size on the typical homing distance of the smallest pollinators 1,312 feet (ft) (400 meters (m)). A radius of 1,312 ft (400 m) encompasses 124 ac (50 ha), and ensures that pollinators have sufficient land to establish nesting sites, access floral resources, and provide pollinating services. We expect that the designated critical habitat units will provide a speciesrich bee community for small, medium, and large pollinators. We find no supporting information indicating that a larger area is likely to improve pollinator services, because smaller pollinators are unlikely to travel much farther, and many medium and large pollinators can easily cover this distance.
Comment 24: In the judgment of one commenter, adequate pollinator habitat exists adjacent to Unit 3 for Astragalus ampullarioides because areas of native vegetation remain within the Coral Canyon Development.
Response: A golf course containing approximately 80 ac (32 ha) of grass turf interspersed with natural rock outcroppings exists to the west of Unit 3. This area is not sufficient to provide pollinator resources for the unit because the habitat does not contain a diverse natural flora capable of supporting an abundant pollinator population. Comments Related to Tribal Issues
Comment 25: One commenter stated that Astragalus ampullarioides occurrences found on land under the sovereignty of the Tribe should be protected and managed by the Tribe without Federal designation of critical habitat.
Response: We agree that the Tribe is most able to manage and protect Astragalus ampullarioides on their lands that are held in trust by the United States. 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 worked with Tribal leadership to create a sound management plan. On September 18, 2006, Tribal Chairman Glenn Rogers signed the Shivwits Band of Paiutes Management Plan for Astragalus ampullarioides. This management plan provides greater protection than critical habitat designation could provide. Therefore, this unit was excluded from final critical habitat (see the GovernmenttoGovernment Relationship with Tribes and 4(b)(2) Exclusions sections below).
Comment 26: One commenter indicated that we should provide an environmental assessment and economic impact analysis on the proposed designation of critical habitat on Tribal lands.
Response: We announced the availability of the draft economic analysis and draft environmental assessment for the proposed designation of critical habitat in the Federal Register (71 FR 56085, September 26, 2006) that included a description of the environmental and economic impacts of the designation on Tribal lands.
Comment 27: One commenter indicated that Units 1 and 2, containing lands managed by BLM and the Tribe, should be combined into one larger unit because they are reasonably close.
Response: Unit 2 is on Tribal land managed by the Tribe, who now have a management plan to ensure that the conservation of Astragalus ampullarioides can be achieved without the designation of critical habitat on Tribal lands. We are excluding Unit 2 from the final critical habitat designation (see the 4(b)(2) Exclusions section below).
Comments Providing Additional Scientific Information
Comment 28: The U.S. Geological Survey (USGS) indicated that their recent research on Astragalus ampullarioides occupancy determined that the species also is affiliated with the Dinosaur Canyon Member of the Moenave, but could not confirm an affiliation with the Shinarump Member of the Chinle. All locations contain clayrich soil.
Response: We have included this information into this final rule.
Comment 29: One commenter stated that new information concerning the preferred soils of Astragalus ampullarioides (described in comment 29 above) expands the concept of potential habitat. The commenter suggested that new surveys beyond the geographic scope of currently known habitat are necessary and may have implications for the specific PCEs for A. ampullarioides.
Response: We agree that the additional information on soils conducive to Astragalus ampullarioides survival will be useful for recognizing potential habitat and conducting surveys. However, we must base our critical habitat designation on the best available scientific data at the time of designation. Our final critical habitat designation is based on the protection of the features essential to the conservation of the known, existing populations of A. holmgreniorum and A. ampullarioides. We have incorporated this new information into the description of the PCEs (see Primary Constituent Elements section below).
Comment 30: One commenter noted that herbivory is not mentioned in the discussion of PCEs for Astragalus ampullarioides despite its potential effects on reproductive output and longterm viability of the species, and the commenter provided information on reduction in fruit production by small mammals at one site.
Response: Herbivory can impact Astragalus ampullarioides reproduction. The specific information provided by the commenter is considered in the Special Management section of this rule. However, we did not include a discussion on herbivory in our determination of the PCEs because herbivory is not relevant to our determination of the physical and biological features essential to the conservation of this species.
Comment 31: One commenter noted that the proposed rule refers to ``USGS soil descriptions,'' but that these descriptions were more likely produced by U.S. Department of Agriculture (USDA) Soil Conservation Service or USDA Natural Resources Conservation Service (NRCS).
Response: In Washington County, Utah, the soil descriptions used originated in the Soil Survey of Washington County Utah (USDA Soil Conservation Service et al. 1977, pp. 710, 1213, 2022, 3031, 34, 44, 48, 124129). In Mohave County, Arizona, information originated from Soil Survey of Shivwits Area, Arizona, Part of Mohave County (USDA NRCS et al. 2000, pp. 115, 6568, 7374, 113114). This information is corrected in this final rule.
Comment 32: One commenter indicated that the proposed rule discussed livestock grazing within Subunit 4b for Astragalus ampullarioides. However, livestock have been removed from this area.
Response: We have updated our information.
Comment 33: One commenter indicated that a population of Astragalus ampullarioides may exist to the south of Subunit 4b and should be surveyed to determine if it should be included in the critical habitat designation.
Response: We have no further information regarding an area outside of Subunit 4b with existing Astragalus ampullarioides, and have made no boundary changes.
Comment 34: One commenter noted that the proposed rule did not discuss that Unit 3 for Astragalus holmgreniorum is within a regional shooting range.
Response: We have added this information to the final rule (see Critical Habitat Designation section).
Comments on Development, Recovery, and Other Issues
Comment 35: One commenter thought that it may be too late to adequately protect the species because extensive development has occurred since listing.
Response: We agree that the species is threatened by development. In addition to this critical habitat designation, the Act provides conservation mechanisms including the section 4 recovery planning process, section 6 funding to the States, section 7 consultations, and the section 9 protective prohibitions of unauthorized take and cooperative programs with private and public landholders and Tribes. A recovery plan was completed for these species on September 29, 2006 (71 FR 57557).
Comment 36: One commenter stated that various Federal, State, and local agencies and government representatives with roles in Washington County have been complicit in the demise of these plants. Priority is given to the desert tortoise and the protection of these lands at the expense of the plants.
Response: We have no evidence supporting this comment. In many cases, such as within the recovery planning process for Astragalus holmgreniorum and A. ampullarioides, various Federal, State, and local agencies and government representatives with roles in Washington County are working together to protect lands containing rare plants, as well as other listed species, such as desert tortoise.
Comment 37: One commenter stated that no viable plan exists to protect these species outside of the designated habitat.
Response: We announced a final recovery plan for Astragalus holmgreniorum and A. ampullarioides (71 FR 57557, September 29, 2006). The recovery plan should result in protecting and enhancing current habitat; ensuring the habitat base for each recovery population is large enough to allow for natural population dynamics, population expansion where needed, the continued presence of pollinators, and sufficient connectivity to allow for gene flow within and among populations; achieving permanent land protection for at least four recovery populations of both A. holmgreniorum and A. ampullarioides; developing sitespecific conservation agreements for all recovery populations and their habitat to protect the milkvetches within existing State laws; prohibiting the use of pesticides or herbicides detrimental to either of the milkvetches or their pollinators within the vicinity of all recovery populations; and collecting and storing seeds for all extant populations.
Comment 38: One commenter stated that, although considerable study of the populations has taken place, no significant recovery actions have followed, and the recovery plans have not been implemented.
Response: Both of these species were listed on September 28, 2001 (71 FR 15966), and are in the early phases of the recovery process. On September 29, 2006, we announced a final recovery plan for Astragalus holmgreniorum and A. ampullarioides (71 FR 57557). Significant conservation efforts that are underway for A. holmgreniorum and A. ampullarioides are discussed on pages 3740 of the recovery plan (Service 2006).
Comment 39: One commenter stated that responsible Federal agencies and elected officials have failed to protect these species as required by the Act.
Response: We are unaware of any failure under the Act to protect these species. No detailed information was provided by the commenter to support this claim.
Comment 40: One commenter suggested that the critical habitat designation process could be improved by soliciting suggestions prior to publishing a proposal.
Response: We have responsibility under the Act for designating critical habitat. An important facet of this responsibility is to provide opportunity for exchange of knowledge and participation. Two public comment periods were provided to facilitate communication, collect best available information, and address concerns of other agencies and stakeholders.
Comment 41: One commenter suggested that the critical habitat designation process should be fully integrated with recovery plan preparation.
Response: Our recovery plan for the milkvetches (Service 2006) targets the same areas for recovery that we proposed for critical habitat. Special Management Considerations or Protections that are discussed within the proposed critical habitat rule (71 FR 15966, March 29, 2006) address the same threats discussed in the recovery plan (Service 2006). We are working with other partners to address threats and population needs to reach recovery.
Comment 42: The Washington County Growth and Conservation Act, as currently proposed by Senator Robert Bennett, may have serious implications for the future of the Astragalus holmgreniorum and A. ampullarioides.
Response: Congressional activities are not evaluated in the designation of critical habitat, and, therefore, this comment is outside the scope of this designation.
Comment 43: Many commented that our discussion of the value of designating critical habitat, and the procedural and resource difficulties involved, was inappropriate and should be addressed in a different forum, not in the news release for a critical habitat rule.
Response: As discussed in the Designation of Critical Habitat
Provides Little Additional Protection to Species, Role of Critical
Habitat in Actual Practice of Administering and Implementing the Act, and Procedural and Resource Difficulties in Designating
Critical Habitat sections of this and other critical habitat designations, we believe that, in most cases, other conservation mechanisms provide greater incentives and conservation benefits than the designation of critical habitat. Other mechanisms include the section 4 recovery planning process, section 6 funding to the States, section 7 consultations, the section 9 protective prohibitions of unauthorized take, the section 10 incidental take permit process, and cooperative programs with private and public landholders and Tribal nations.
Comment 44: No action has ever been taken to list the native bee, Peridita meconis, or determine its status.
Response: This action is to designate critical habitat for Astragalus holmgreniorum and A. ampullarioides. The status of Peridita meconis is outside the scope of this action.
Comments Related to the Draft Economic Analysis
Comment 45: Two commenters stated that the St. George area is one of the fastest growing metropolitan areas in the United States, and that its growth rate may increase. The commenters felt that, considering the rapid population growth, the critical habitat determination would provide open space relief and an economic amenity value. The commenters believe that the critical habitat determination may provide a future ecotourism industry, and a ``population safety buffer'' benefit for the airport.
Response: Section 4.1 of the Draft Economic Analysis acknowledged that Washington County is one of the fastest growing counties in the United States. However, section 4.1 also highlights that the County believes the population increase will not cause overcrowding because more than 75 percent of the land in the County is managed by the Federal government (i.e., BLM, U.S. Forest Service, and National Park Service) and is not expected to be developed. The Draft Economic Analysis does not forecast precluding development within the boundaries of the proposed critical habitat determination. Residential, commercial, and industrial development is expected to occur; thus the proposed critical habitat determination that occurs on nonFederal land is not expected to provide a ``population safety buffer'' benefit for the new regional airport located approximately 3 mi (4.8 km) east of Subunit 1c. No data are available to describe or forecast how many people currently visit the area to allow for the measurement of the impact of critical habitat determination on the future ecotourism industry.
Comment 46: One commenter thought that the draft economic analysis did not consider the effect of the new regional airport.
Response: The proposed location of the new regional airport is approximately 3 mi (4.8 km) east of Subunit 1c for Astragalus holmgreniorum. While airportrelated species conservation activities are not expected during construction and operation of the airport, the Draft Economic Analysis included consideration of the County growth forecast and general plan, which reflect the effects of a new regional airport; therefore, the economic analysis captures any economic impacts related to population growth resulting from the new regional airport. Comments From States
Comments were received from the Arizona State Land Department (ASLD), Arizona Department of Transportation, and Arizona Game and Fish regarding the proposal to designate critical habitat for the Astragalus holmgreniorum, and are addressed below.
Comments on Areas in the Median of Interstate15
Comment 47: One commenter pointed out that the proposed rule indicated that critical habitat would not include existing manmade structures (such as roads) that lack PCEs, or the land on which such structures are located. The commenter thought that manmade structures, such as cut slopes and fill slopes, as well as regularly graded areas along the I15 rightofway, should be excluded, or that areas of inclusion along I15 should be better defined.
Response: Where we have specific information on areas within the designation that do not contain the PCEs, we have not included them in the final rule (see Summary of Changes). The existence of manmade structures are excluded by text in the rule clarifying that these areas do not contain the PCEs and are not included as critical habitat (see Criteria to Identify Critical Habitat).
Comment 48: The proposed rule states that the longterm conservation of Astragalus holmgreniorum and A. ampullarioides is, in part, dependent on the ability to keep critical habitat free from major grounddisturbing activities. While best management practices can and likely will be developed in coordination with the Service, it is unlikely that the I15 rightofway can be kept free from ground disturbing activities, such as road maintenance, vehicle collisions, or motorists pulling off the roadway.
Response: The areas we are designating as critical habitat provide some or all of the habitat components essential for the conservation of Astragalus holmgreniorum and A. ampullarioides. Best management practices are likely to reduce grounddisturbing activities, and are evaluated during section 7 consultations on projects with a Federal nexus, e.g., actions related to the Federal Highway Administration.
Comment 49: One commenter stated that designation of critical habitat within the I15 rightofway would not provide any additional benefits because projects typically receive funding from the Federal Highway Administration and are already subject to section 7 consultation.
Response: Jeopardy and adverse modification analyses differ under section 7 of the Act and may result in differing determinations depending on the specific action at issue. The jeopardy analysis usually addresses the survival and recovery needs of a species in a qualitative fashion. Generally, if a proposed Federal action is incompatible with the viability of a population(s) essential to recovery, a jeopardy finding is considered to be warranted because of the relationship of essential populations to the survival and recovery of the species as a whole. Adverse modification analyses are conducted using an analytical framework described in the Director's December 9, 2004, memorandum. The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the PCEs to be functionally established) in serving the intended conservation role for the species. Activities that may destroy or adversely modify critical habitat also may jeopardize the continued existence of the species. Additionally, not all actions that occur in critical habitat will be subject to section 7 of the Act, because they may not be Federal actions.
Comment 50: The ASLD commented that Subunits 1a and 1b for Astragalus holmgreniorum, which are under its management, are slated for commercial and mixed residential uses. While they are not opposed to the designation, they have concerns regarding the development potential of the lands due to the designation.
Our Response: All the lands proposed for critical habitat contain
the features essential for the conservation of Astragalus holmgreniorum and A.
ampullarioides regardless of ownership. In our final designation, we considered economic factors for both public and private lands. We determined that economic costs did not outweigh the benefits of designation for any of the proposed lands. However, we did exclude Tribal lands based on a conservation agreement with the Tribe. Further, critical habitat designation for plants does not necessarily affect state or private lands, unless there is a Federal nexus, such as when Federal funds are involved.
Summary of Changes From Proposed Rule
In developing the final critical habitat designation for Astragalus
holmgreniorum and A. ampullarioides, we reviewed the comments received
on our proposed rule, draft economic analysis, and draft environmental
assessment, and conducted further evaluation of lands included in the
proposal. Based on our review, we changed our proposed designation as follows:
(1) We adjusted the critical habitat boundaries of Astragalus holmgreniorum Subunits 2a and 2b to better capture existing occupied habitat that contains the PCEs, based on biological information received during the public comment period. This resulted in the addition of 26 ac (9 ha) in Subunit 2a, and the loss of 18 ac (6 ha) in Subunit 2b (see the revised proposed rule published on September 26, 2006, at 71 FR 56085).
(2) We adjusted the boundaries of Subunits 1a and 1c for Astragalus holmgreniorum so that they do not contain areas without the PCEs or areas that do not meet the designation criteria (are essential to the continued conservation of the species and require special management consideration or protection). This resulted in the removal of 191 ac (78 ha) and 2 ac (1 ha) respectively.
(3) Under section 4(b)(2) of the Act, we excluded Unit 2 for Astragalus ampullarioides. On September 18, 2006, Glenn Rogers, Band Chairman, signed the Shivwits Band of Paiutes Management Plan for A. ampullarioides. This management plan provides greater protection than critical habitat designation could provide. Because the management plan ensures that the conservation of A. ampullarioides can be achieved without the designation of critical habitat on Tribal lands, we are excluding Unit 2 from the final critical habitat designation (see 4(b)(2) Exclusions section below). This exclusion amounts to a reduction of 240 ac (97 ha) in the total critical habitat designation for A. ampullarioides.
(4) We modified the descriptions of the PCEs for clarity; however, the substance of the PCEs has not changed.
Critical habitat is defined in section 3 of the Act as (i) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) Essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 requires consultation on Federal actions that are likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow government or public access to private lands. Section 7 is a purely protective measure and does not require implementation of restoration, recovery, or enhancement measures.
To be included in a critical habitat designation, the habitat within the area occupied by the species must first have features that are essential to the conservation of the species. Critical habitat designations identify, to the extent known using the best scientific data available, habitat areas that provide essential life cycle needs of the species (i.e., areas on which are found the PCEs, as defined at 50 CFR 424.12(b)).
Habitat occupied at the time of listing may be included in critical habitat only if the essential features thereon may require special management or protection. Thus, we do not include areas where existing management is sufficient to conserve the species. (As discussed below, such areas also may be excluded from critical habitat pursuant to section 4(b)(2).) Accordingly, when the best available scientific data do not demonstrate that the conservation needs of the species require additional areas, we will not designate critical habitat in areas outside the geographical area occupied by the species at the time of listing. However, an area currently occupied by the species but was not known to be occupied at the time of listing will likely, but not always, be essential to the conservation of the species and, therefore, typically included in the critical habitat designation.
The Service's Policy on Information Standards Under the Endangered Species Act, published in the Federal Register on July 1, 1994 (59 FR 34271), and section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service, provide criteria, establish procedures, and provide guidance to ensure that decisions made by the Service represent the best scientific data available. They require Service biologists to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas are critical habitat, a primary source of information is generally the listing package for the species. Additional information sources include the recovery plan for the species, articles in peerreviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge. All information is used in accordance with the provisions of section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Habitat is often dynamic, and species may move
from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery.
Areas that support populations, but are outside the critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available information at the time of the action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome. Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to designate as critical habitat, we consider physical and biological features (PCEs) that are essential to the conservation of the species, that are within areas occupied by the species at the time of listing, and that may require special management considerations and protection. These include, but are not limited to space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing (or development) of offspring; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.
The specific PCEs required for Astragalus holmgreniorum and A. ampullarioides are derived from the biological needs of these milk vetches as described in the proposed critical habitat designation (71 FR 15966; March 29, 2006).
Primary Constituent Elements for Astragalus holmgreniorum
Based on our current knowledge of the life history, biology, and
ecology of the species and the requirements of the habitat to sustain
the essential life history functions of the species, the primary constituent elements for Astragalus holmgreniorum are:
(1) Appropriate geological layers or soils that support individual Astragalus holmgreniorum plants. A. holmgreniorum is found on the Virgin Limestone member, middle red member, and upper red member of the Moenkopi Formation and the Petrified Forest member of the Chinle Formation (Harper and VanBuren 1997; Hughes 2005). Associated soils are defined by USDA et al. (1977 and 2000) as Badland; Badland, very steep; Eroded landShalet complex, warm; Hobogrock land association; Isom cobbly sandy loam; Ruesh very gravelly fine sandy loam; Gypill Hobog complex, 6 to 35 percent slopes; Gypill very cobbly sandy loam, 15 to 40 percent slopes; and HobogGrapevine complex, 2 to 35 percent slopes. These soils are generally found at elevations from 2,430 to 3,000 ft (756 to 914 m), support associated native plant species, and have a low presence or lack of Larrea tridentata (creosote bush).
(2) Topographic features/relief (mesas, ridge remnants, alluvial fans, and fan terraces, their summits and backslopes, and gently rolling to steep swales) and the drainage areas along formation edges with little to moderate slope (0 to 20 percent).
These topographic features/relief contribute to the soil substrate
and vegetative community, natural weathering and erosion, and the
natural surface and subsurface structure that provides minimally
altered or unaltered hydrological conditions (e.g., seasonally
available moisture from surface or subsurface runoff) on which Astragalus holmgreniorum depends.
(3) The presence of insect visitors or pollinators, such as Anthophora captognatha, A. damnersi, A. porterae, Anthophora spp., Eucera quadricincta, Omia titus, and two types of Dialictus sp. Primary Constituent Elements for Astragalus ampullarioides
Based on our current knowledge of the life history, biology, and
ecology of the species, the primary constituent elements for Astragalus ampullarioides are:
(1) Outcroppings of soft clay soil, often purplehued, within the Chinle Formation and the Dinosaur Canyon Member of the Moenave Formation, at elevations from 3,018 to 4,367 ft (920 to 1,330 m).
Plant species that are characteristically found on these clay soils
within the Chinle Formation and can indicate the presence of this PCE
were included in the Background section of the proposed critical habitat designation (71 FR 15966; March 29, 2006).
(2) Topographic features/relief, including alluvial fans and fan terraces, and gently rolling to steep swales, with little to moderate slope (3 to 24 percent), that are often markedly dissected by water flow pathways from seasonal precipitation.
Associated topographic features/relief contribute to the soil
substrate and vegetative community described above, natural weathering
and erosion, and the natural surface and subsurface structure that
provides minimally altered or unaltered hydrological conditions (e.g.,
seasonally available moisture from surface or subsurface runoff) on which Astragalus ampullarioides depends.
(3) The presence of insect visitors or pollinators, such as Anthophora captognatha, A. damnersi, A. porterae, Anthophora spp., Eucera quadricincta, Bombus morrissonis, Hoplitis grinnelli, Osmia clarescens, O. marginata, O. titus, O. clavescens, and two types of Dialictus sp.
This designation is designed for the conservation of PCEs necessary to support the life history functions that were the basis for the proposal. Because not all life history functions require all the PCEs, not all critical habitat will contain all the PCEs. For more information regarding the PCEs essential to the conservation of Astragalus holmgreniorum and A. ampullarioides, see the proposal to designate critical habitat (71 FR 15966; March 29, 2006).
Criteria Used To Identify Critical Habitat
As required by section 4(b)(1)(A) of the Act, we use the best scientific data in determining areas that contain the features essential to the conservation of Astragalus holmgreniorum and A. ampullarioides. We reviewed available information that pertains to habitat requirements of these species. We reviewed the overall approach to conservation of both milkvetches undertaken by local, State, and Federal agencies since their listing, and the recovery plan for the A. holmgreniorum and A. ampullarioides (2006).
We reviewed the available information pertaining to the historic
and current distributions, life histories, habitats, and threats to these milk
vetches. We obtained records of distribution for the milkvetches from BLM Arizona Strip Field Office (BLM AZ); BLM St. George Field Office (BLM UT); Shivwits Band of Paiutes, Utah School and Institutional Trust Lands Administration (SITLA); Zion National Park; and Utah Valley State College (VanBuren, unpublished GIS data). We also reviewed data included in reports submitted during the section 7 consultation process; and published and unpublished documentation from our files. This information included BLM handmapped polygons that outlined occupied or potentially occupied habitats in Arizona and Utah, primarily developed prior to the species' listing (66 FR 49560, September 28, 2001).
For some sites, recent (2003 to 2005) survey information was available and evaluated to identify known plant locations (provided by Zion National Park, BLM UT, BLM AZ, SITLA, and Van Buren). Although occupied sites may gradually change, recent survey results confirm that plant distribution is similar to known distributions at the time of listing (66 FR 49560, September 28, 2001). We designated no areas outside the geographical area presently occupied by the species.
Our approach to delineating critical habitat units was applied in the following manner:
(1) We overlaid plant locations into a GIS
FOR FURTHER INFORMATION CONTACT
Larry Crist, Field Supervisor, Utah Fish and Wildlife Office (see ADDRESSES), telephone 8019753330.