[Federal Register Volume 62, Number 224 (Thursday, November 20, 1997)]
[Proposed Rules]
[Pages 61953-61959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30473]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AE44
Endangered and Threatened Wildlife and Plants; Proposed
Endangered Status for the Plant Plagiobothrys Hirtus (Rough
Popcornflower)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes
endangered
[[Page 61954]]
species status pursuant to the Endangered Species Act of 1973, as
amended (Act) for the plant Plagiobothrys hirtus (rough popcornflower).
This species is restricted to wet swales and meadows in Douglas County,
Oregon, where only 10 occurrences are known. Most populations are small
with few individuals. The total estimated number of plants is 3,000
within a combined area of about 4 hectares (ha) (10 acres (ac)).
Threats to this species include destruction and/or alteration of
habitat by development and hydrological changes (e.g., wetland fills,
draining, construction); spring and summer grazing by domestic cattle,
horses, and sheep; roadside maintenance; and competition from native
and alien plant species. This proposal, if made final, would implement
the Federal protection and recovery programs of the Act for this plant.
DATES: Comments from all interested parties must be received by January
20, 1998. Public hearing requests must be received by January 5, 1998.
ADDRESSES: Comments and materials concerning this proposal should be
sent to the State Supervisor, U.S. Fish and Wildlife Service, Oregon
State Office, 2600 S.E. 98th Ave., Suite 100, Portland, Oregon 97266.
Comments and materials received will be available for public inspection
by appointment during normal business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Andrew Robinson, Botanist, at the
above address or by telephone (503/231-6179).
SUPPLEMENTARY INFORMATION:
Background
Plagiobothrys hirtus was first collected by Thomas Howell in 1887
and described the following year as Allocarya hirta (Greene 1888).
Subsequent taxonomic treatments included A. scouleri var. hirta, P.
scouleri var. hirtus, A. calycosa, and P. hirtus (Gamon and Kagan
1985). Johnston recognized two varieties of the species, P. hirtus var.
hirtus and P. hirtus var. collaricarpus (Gamon and Kagan 1985). Later,
Chambers (1989) considered the material included in the variety
collaricarpus to be a variety of P. figuratus, which elevated the
material assigned to P. hirtus var. hirtus to a full species.
A member of the borage family (Boraginaceae), Plagiobothrys hirtus
is an annual herb on drier sites or perennial herb on wetter sites
(Amsberry and Meinke 1997). It reaches 30-70 centimeters (cm) (1-2 feet
(ft)) in height and has a fairly stout stem with widely spreading,
coarse, firm hairs on the upper part. The leaves of the main stem are
opposite (paired) and the racemes are paired and without bracts. The
individual flowers are 1-2 millimeters (0.4-0.6 inches (in)) wide, and
white in color (Gamon and Kagan 1985). It grows in scattered groups and
reproduces largely by insect-aided cross-pollination and partially by
self-pollination. The species is distinguished from other Plagiobothrys
species by coarse, sparse hairs on the stem and branches (Gamon and
Kagan 1985).
Plagiobothrys hirtus grows in open, seasonal wetlands in poorly-
drained clay or silty clay loam soils (Gamon and Kagan 1985). The taxon
is considered dependent on seasonal flooding and/or fire to maintain
open habitat and to limit competition with invasive native and alien
plant species such as Himalayan blackberry (Rubus discolor), Oregon ash
(Fraxinus latifolia), teasel (Dipsacus fullonum), and pennyroyal
(Mentha pulegium) (Gamon and Kagan 1985, Almasi and Borgias 1996).
Plagiobothrys hirtus occurs in open microsites within the one-sided
sedge (Carex unilateralis)--meadow barley (Hordeum brachyantherum)
community type within interior valley grasslands. Other frequently
associated species include tufted hairgrass (Deschampsia cespitosa),
American slough grass (Beckmannia syzigachne), great camas (Camassia
leichtlinii var. leichtlinii), water foxtail (Alopecurus geniculatus),
baltic rush (Juncus balticus), wild mint (Mentha arvensis), Willamette
downingia (Downingia yina), and bentgrass (Agrostis alba) (Gamon and
Kagan 1985).
Plagiobothrys hirtus is endemic to the interior valley of the
Umpqua River in southwestern Oregon. The species was collected only
four times between 1887 and 1961, all at sites within Douglas County
(Gamon and Kagan 1985). The taxon was considered possibly extinct
(Meinke 1982) until it was rediscovered in 1983 as a result of
intensive field surveys (Jimmy Kagan, Oregon Natural Heritage Program
(ONHP), pers. comm. 1997). The location of the first specimen,
collected by Howell on June 25, 1887, was given only as the Umpqua
Valley (Greene 1888). The sites of collections from 1932 and 1939, were
from 16 kilometers (km) (10 miles (mi)) east of Sutherlin and 3 km (2
mi) north of Yoncalla, respectively (Siddall and Chambers 1978) . Both
sites were surveyed in 1983, but no plants were found (Gamon and Kagan
1985). At the time, the sites were heavily grazed by sheep, which lead
the botanists to speculate that grazing was the probable cause of
extirpation at these sites (Gamon and Kagan 1985). In 1961, a
collection was made adjacent to Interstate 5 south of Yoncalla, a site
which remains extant today (J. Kagan, pers. comm. 1997).
Despite the few pre-1961 collections, Plagiobothrys hirtus was
probably widespread historically on the floodplains of the interior
valleys of the Umpqua River. Because P. hirtus occurs in low-lying
areas, seeds were likely dispersed by flood waters, resulting in a
patchy clumped distribution on the floodplains (Gamon and Kagan 1985).
Natural processes such as flooding and fire maintained open, wetland
habitat (Gamon and Kagan 1985). Draining of wetlands for urban and
agricultural uses and road and reservoir construction, however, has
altered the original hydrology of the valley to such an extent that the
total area of suitable habitat for P. hirtus has been significantly
reduced. In addition, fire suppression has allowed the invasion of
woody and herbaceous species into formerly open wetland habitats (Gamon
and Kagan 1985).
Plagiobothrys hirtus is now limited to 10 known occurrences in the
vicinity of Sutherlin and Yoncalla, Oregon (ONHP 1996). All extant
populations of this species are small (i.e., fewer than 500
individuals) and occur in disjunct habitat. The 10 occurrences are
estimated to have a total of about 3,000 individuals and a combined
area of less than 4 ha (10 ac) (Amsberry and Meinke 1997).
All extant populations are at risk of extirpation due to a variety
of threats (Almasi and Borgias 1996; J. Kagan, pers. comm. 1997; R.
Meinke, Oregon State University, pers. comm. 1997). In addition to the
ongoing threat of direct loss of habitat from conversion to urban and
agricultural uses, hydrological alterations, and fire suppression,
other threats to the species include spring and summer livestock
grazing, and roadside mowing, spraying and landscaping (Gamon and Kagan
1985, J. Kagan, pers. comm. 1995). Six of the 10 extant occurrences are
adjacent to highways. The other four occurrences are in urban or
agricultural areas.
Nine of the 10 known occurrences are on private land. The other
population is on public land owned by the Oregon Department of
Transportation (ODOT). One of the private parcels is owned and managed
for the species by The Nature Conservancy (TNC). The other eight
occurrences on private lands have no protective management for the
species and are at risk of extirpation from development, incompatible
grazing practices, and recreational activities (J.
[[Page 61955]]
Kagan, pers. comm, 1997; R. Meinke, pers. comm., 1997)
Previous Federal Action
Federal action on Plagiobothrys hirtus began when the Secretary of
the Smithsonian Institute prepared a report on plants considered to be
endangered, threatened, or extinct, pursuant to section 12 of the Act.
That report, designated as House Document No. 94-51, was presented to
Congress on January 9, 1975. On July 1, 1975, the Service published a
notice in the Federal Register (40 FR 27823) accepting the report as a
petition within the context of section 4(c)(2) (now section 4(b)(3)(A))
of the Act. The notice further indicated the Service's intention to
review the status of the plant species named therein. As a result of
this review, the Service published a proposed rule in the Federal
Register on June 16, 1976, (41 FR 24523), to determine approximately
1,700 vascular plant species to be endangered pursuant to section 4 of
the Act. This list, which included P. hirtus, was assembled on the
basis of comments and data received by the Smithsonian Institute and
the Service in response to House Document No. 94-51 and the July 1,
1975 Federal Register publication. In 1978, amendments to the Act
required that all proposals over 2 years old be withdrawn. A 1-year
grace period was given to proposals already over 2 years old. On
December 10, 1979, the Service published a notice in the Federal
Register (44 FR 70796) of the withdrawal of that portion of the June
16, 1976, proposal that had not been made final, along with four other
proposals that had expired.
The Service published an updated Notice of Review for plants on
December 15, 1980 (50 FR 82480), including Plagiobothrys hirtus as a
category 1 candidate species. Category 1 species were those for which
the Service had on file substantial information on biological
vulnerability and threats to support preparation of listing proposals.
This status was changed to category 2 in the November 28, 1983,
supplement to the notice (48 FR 53657), and remained as such in the
September 27, 1985, Notice of Review (50 FR 39527). Category 2 species
were those for which conclusive data on biological vulnerability and
threats were not currently available to support proposed rules. In the
February 21, 1990, Notice of Review (55 FR 6185), this status was
changed back to category 1. Upon publication of the February 28, 1996,
Notice of Review in the Federal Register (61 FR 7596), the Service
ceased using category designations and included P. hirtus as a
candidate species. Candidate species are those for which the Service
has on file sufficient information on biological vulnerability and
threats to support proposals to list the species as threatened or
endangered.
Section 4(b)(3)(B) of the Act requires the Secretary to make
findings on pending petitions within 12 months of their receipt.
Section 2(b)(1) of the 1982 amendments further requires that all
petitions pending on October 13, 1982, be treated as having been newly
submitted on that date. This was the case for P. hirtus because of the
acceptance of the 1975 Smithsonian Report as a petition. On October 13,
1983, the Service found that the petitioned listing of this species was
warranted, but precluded by other pending listing actions, in
accordance with section 4(b)(3)(B)(iii) of the Act; notice of this
finding was published on January 20, 1984 (49 FR 2485). Such a finding
requires the petition to be recycled pursuant to section 4(b)(3)(C)(I)
of the Act. The finding was reviewed annually in October of 1984
through 1995. Publication of this proposal constitutes the final 1-year
finding for the petitioned action.
Plagiobothrys hirtus has a listing priority number of 2. Processing
of this rule is a Tier 3 activity under the current listing priority
guidance.
Summary of Factors Affecting the Species
Section 4 of the Endangered Species Act (16 U.S.C. 1533) and
regulations (50 CFR part 424) promulgated to implement the listing
provisions of the Act set forth the procedures for adding species to
the Federal lists. A species may be determined to be an endangered or
threatened species due to one or more of the five factors described in
section 4(a)(1) of the Act. These factors and their application to
Plagiobothrys hirtus Greene (rough popcornflower) are as follows:
A. The present or threatened destruction, modification, or
curtailment of habitat or range. Plagiobothrys hirtus is threatened by
destruction and modification of its wetland habitat (R. Meinke, pers.
comm. 1997). Although the species is believed to have been more
abundant in the past throughout the interior valleys of the Umpqua
River, it is now limited to 10 small, isolated occurrences. Direct loss
of habitat from hydrological alterations, wetland filling, or
conversion to other uses pose a threat to all 10 extant occurrences.
Two sites occur on private land within the urban boundary of the
town of Sutherlin. When first discovered in 1983, these sites were the
largest known occurrences (ONHP 1996). One site, with approximately 200
individuals in 1983, has since been destroyed and only 1 plant was
found in 1996; development of this site is imminent (J. Kagan, pers.
comm. 1997). The other site, estimated to have 300-500 plants when
discovered in 1983, has been declining since that time. In 1994, a
portion of the wetland at the site was filled, and the remaining area
was observed to be significantly impacted by mountain bike recreation;
only about 50-100 plants were present (J. Kagan, pers. comm. 1995).
Urban development of this site is considered likely (J. Kagan, pers.
comm. 1997, R. Meinke, pers. comm. 1997).
Three sites are known on private land about 1.6 km (1 mi) east of
Sutherlin. One of these, when discovered in 1983, had about 30-35
plants within an area of about 200 square meters (m2) (2,200
square feet (ft2)). The site lies within the Sutherlin urban
growth boundary and is slated for development (ONHP 1996). The other
two sites were discovered in 1986. One of these had 200 plants in 1986,
but by 1988 had only 30-40 plants scattered over an area of 25
m2 ( 275 ft2). Habitat conditions on this site
are described as marginal (ONHP 1996). The other site also had about
200 plants when first observed in 1986, but by 1988 had decreased to
about 100 plants (ONHP 1996). During the most recent site survey in
1993, only 50-100 plants were seen (J. Kagan, pers. comm. 1997).
Four additional sites are known on private land several kilometers
south of the town of Sutherlin. One of these, when discovered in 1983,
consisted of about 150 plants growing in an area of about 50
m2 (550 ft2). In 1996, only about 50 plants
remained. Two other sites were both discovered in 1984. One consisted
of 50-60 plants in a 30 m2 (330 ft2) area, and
the other had 200-300 plants (ONHP 1996). Both occurrences had
generally decreasing numbers of individuals through the late 1980's.
TNC acquired a portion of the larger of the two occurrences and began
formal monitoring in 1995. Individuals were too numerous for a complete
census in 1995 with the total population on the site estimated at over
16,000 individuals. In 1996, however, the population plummeted to only
394 plants, a drop attributed to an extensive period of standing water
on the preserve that year due to a wet spring (Almasi and Borgias
1996). See Factor E discussion for further details on this population
decline. The fourth site, when discovered in 1990, had fewer than 50
plants (J. Kagan, pers. comm. 1995).
[[Page 61956]]
The last site is on public land and private land about 22 km (14
mi) north of Sutherlin near the town of Yoncalla. This site is the
locality of the 1961 collection that was relocated in 1983. About 200
plants were present in 1988, and the population size has continued to
increase under management by ODOT. Although the population on public
land appears vigorous, a portion of the population on the adjacent
private land appears to have vanished (J. Kagan, pers. comm. 1997).
Alterations in site hydrology pose the primary threat to the plants (R.
Meinke, Oregon State University, pers. comm. 1997).
B. Overutilization for commercial, recreational, scientific, or
educational purposes. No evidence of overutilization of this taxon for
any purpose exists at this time. However, the plants are easily
accessible by road, and the small population sizes make them vulnerable
to overcollection by botanical enthusiasts.
C. Disease or predation. Grazing has likely been a contributing
factor in declining Plagiobothrys hirtus numbers throughout its
historic range (Gamon and Kagan 1985). Livestock graze in pastures
containing four of the occurrences (ONHP 1996). The timing and
intensity of grazing, however, determine the effects of grazing on the
plant. Grazing during spring and early summer likely threatens P.
hirtus. When herbivores eat the flower or seed head of the plant, the
reproductive output for the year for that individual is destroyed. This
activity may be more significant at sites where the species functions
as an annual (Gamon and Kagan 1985). However, where fires and flooding
no longer occur, grazing may benefit the species. Fall grazing, in
particular, may be of benefit because the plant is dormant during at
this time and grazing can keep the habitat open by reducing the growth
of competing species (Gamon and Kagan 1985). By reducing vegetative
growth, fall grazing or mowing (see factor E discussion) may also lower
the suitability of the habitat for voles and, thereby, reduce herbivory
on the plant.
D. Inadequacy of existing regulatory mechanisms. Under the Oregon
Endangered Species Act (ORS 564.100-564.135) and pursuant regulations
(OAR 603, Division 73), the Oregon Department of Agriculture has listed
Plagiobothrys hirtus as endangered (OAR 603-73-070). This statute
prohibits the ``take'' of State-listed plants on State, county, and
city owned or leased lands. Most occurrences of P. hirtus occur on
private land and are not subject to any current regulations. One site
is adjacent to State Route 99 on lands managed by ODOT and has been
designated by the agency as a Special Management Area. Mowing and
spraying practices have been modified to protect the species at this
site where the plant appears to be stable or increasing (N. Testa,
Oregon Department of Transportation, pers. comm. 1997).
E. Other natural or manmade factors affecting its continued
existence. Nine of 10 extant sites of Plagiobothrys hirtus occur
adjacent to major highways (Interstate 5 and/or State Route 99) or
railroad beds. Herbicide spraying and highway landscaping has affected
and reduced at least one P. hirtus population (J. Kagan, pers. comm.
1995). Mowing is also part of the routine maintenance of roadways. As
with livestock grazing, mowing or pesticide spraying during the spring
may reduce seed set and thereby negatively affect populations of the
plant. Late season mowing has benefited the P. hirtus population at the
ODOT site, probably by reducing competition from other plants and
herbivory by voles (R. Meinke, pers. comm. 1997). With the exception of
the P. hirtus populations in ODOT's Special Management Area and The
Nature Conservancy's Popcorn Swale, none of the roadside occurrences
are protected from herbicide spraying, landscaping or early season
mowing. In addition, roadside occurrences are at risk of toxic chemical
spills and runoff containing oil and grease (N. Testa, pers. comm.
1997). Vehicle accidents also increase the risk of fuel contamination
or fire; such an accident recently occurred adjacent to the ODOT
population, but the plant was not affected (N. Testa, pers. comm.
1997).
Encroachment by native and alien plant species increases when
natural processes like fire or flooding are altered (J. Kagan, pers.
comm. 1997; R. Meinke, pers. comm. 1997). After a 1985 fire at one of
the sites in Sutherlin, the plants responded the following year with
vigorous growth (J. Kagan, pers. comm. 1997). As with late season
grazing or mowing, late season fire is likely to be of benefit, while
fire which occurs prior to seed set may have negative consequences to
Plagiobothrys hirtus. The encroachment of weedy, and especially woody,
species may also alter site hydrology by capturing more of the
available water, an alternative explanation for the dramatic collapse
of the population at the TNC preserve between 1995 and 1996 (see Factor
A; R. Meinke, pers. comm. 1997).
Because of the small, isolated nature of the occurrences and the
few individuals present in most of them, Plagiobothrys hirtus is also
more susceptible to random events, such as fires during the growing
season, insect or disease outbreaks, or toxic chemical spills. The
rapid, and as yet unexplained, collapse of the population at the TNC
preserve argues for the protection of all extant sites to shield the
species from random events that could cause its extinction. Small,
isolated populations may also have an adverse effect on pollinator
activity, seed dispersal, and gene flow. The existence of both annual
and perennial populations in P. hirtus suggests that some local genetic
differentiation may already exist among populations of the species.
Genetic drift within small, isolated populations can lead to a loss of
genetic variability and a reduced likelihood of long-term viability
(Soule in Lesica and Allendorf 1992).
The Service has carefully assessed the best scientific and
commercial information available concerning the past, present, and
future threats faced by this species in determining to propose this
rule. Based on this evaluation, the preferred action is to list
Plagiobothrys hirtus as endangered. Filling of its wetland habitat for
development, livestock grazing during its growing season, invasion by
competitive plant species as a result of hydrological alteration and
fire suppression, and roadside spraying and mowing continue to reduce
plant numbers and habitat. The small, isolated occurrences with few
individuals make the species more vulnerable. In addition, continued
decreases in the number of occurrences and individuals could result in
decreased genetic variability. The varied and cumulative threats to P.
hirtus indicate the species is in danger of extinction throughout its
range. For these reasons, the Service believes that listing P. hirtus
as endangered is the most appropriate action. Failure to list this
species would likely result in extinction of the species. Threatened
status is not appropriate because all of the extant occurrences of P.
hirtus are small, and 8 of 10 occurrences have no protection from
mowing, herbicide application, imminent urbanization, and grazing
threats. In addition, one of the protected occurrences recently
suffered a precipitous, and as yet unexplained, reduction in numbers.
Not listing the taxon or listing it as threatened would not provide
adequate protection and would not be consistent with the Act.
Critical Habitat
Critical habitat is defined in section 3 of the Act as: (i) The
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological
[[Page 61957]]
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'' means
the use of all methods and procedures needed to bring the species to
the point at which listing under the Act is no longer necessary.
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary designate critical habitat at the time
the species is determined to be endangered or threatened. The Service
finds that designation of critical habitat is not prudent for P.
hirtus. Service regulations (50 CFR 424.12(a)(1)) state that
designation of critical habitat is not prudent when one or both of the
following situations exist--(1) The species is threatened by taking or
other human activity, and identification of critical habitat can be
expected to increase the degree of threat to the species, or (2) such
designation of critical habitat would not be beneficial to the species.
Although overutilization is not considered to be a threat to
Plagiobothrys hirtus at this time, listing of this species as
endangered would publicize its rarity and, thus, can make it more
attractive to researchers or collectors of rare plants. Most
occurrences are small enough that even limited collecting pressure
could have adverse impacts. The Service is also aware of a report that,
after the species was listed by the State of Oregon, a landowner
contacted by State botanists to discuss protective measures for a
population on his property allegedly responded by blading the site and
destroying the population (J. Kagan, pers. comm. 1997). The publication
of precise maps and descriptions of critical habitat in the Federal
Register would make this plant more vulnerable to incidents of
collection and/or vandalism and, therefore, contribute to the decline
of this species and increase enforcement problems.
Further, designation of critical habitat for Plagiobothrys hirtus
is not prudent for lack of benefit. This plant does not occur on
Federal land, and it is not believed to have historically occurred on
Federal land. Although a potential nexus for Federal action exists for
all occurrences within section 404 of the Clean Water Act and for some
occurrences in which the Federal Highway Administration may become
involved (see ``Available Conservation Measures'' section below), any
such Federal involvement would also require consultation under section
7 of the Act. Any action that would adversely modify critical habitat
would also jeopardize the continued existence of the species. Most
occurrences of this plants are of such small size that a wetland fill
less than the 0.13 ha (0.34 ac) regulatory threshold (see ``Available
Conservation Measures'' section below) would eliminate it. The
designation of critical habitat would not provide additional benefits
for this species beyond the protection afforded by listing.
The Service finds, therefore, that designation of critical habitat
for this species is not prudent because such designation would likely
increase the degree of threat to the species from vandalism and would
provide no additional benefit to the species' protection. Protection of
the species' habitat will be addressed primarily through the recovery
process.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness and
conservation actions by Federal, State, and local agencies, private
organizations, and individuals. The Act provides for possible land
acquisition and cooperation with the states and requires that recovery
actions be carried out for all listed species. The protection required
by Federal agencies and the prohibitions against certain activities
involving listed plants are discussed, in part, below.
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its critical habitat, if
any is being designated. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with the
Service on any action that is likely to jeopardize the continued
existence of a species proposed for listing or result in destruction or
adverse modification of proposed critical habitat. If a species is
listed subsequently, section 7(a)(2) requires Federal agencies to
ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of the species or destroy
or adversely modify its critical habitat. If a Federal action may
affect a listed species or its critical habitat, the responsible
Federal agency must enter into consultation with the Service.
Because Plagiobothrys hirtus occurs in wetlands, regulatory
mechanisms under the Clean Water Act apply to this species. Under
section 404 of the Clean Water Act, the U.S. Army Corps of Engineers
(Corps) regulates the discharge of fill material into the waters of the
United States, including wetlands. To be in compliance with the Clean
Water Act, potential applicants are required to notify the Corps prior
to undertaking any activity that would result in the fill of wetlands
under the Corps' jurisdiction (e.g., grading, discharge of soil or
other fill material, etc.). Nationwide Permit Number 26 (33 CFR 330.5
and 33 CFR 330, App. A) has been issued to regulate the fill of
wetlands that are not larger than 1.2 ha (3 ac), nor cause the loss of
waters of the United States for a distance of more than 150 linear m
(500 linear ft) of streambed (61 FR 65874). Where fill would occur in a
wetland less than 0.13 ha (0.34 ac) in size, no requirement exists to
notify the Corps prior to fill activities. Where fill would occur in a
wetland of 0.13 ha (0.34 ac) to 1.2 ha (3 ac) in size, the Corps
circulates for agency comment a predischarge notification to the
Service and other interested parties prior to determining whether or
not the proposed fill activity qualifies under Nationwide Permit 26.
Individual permits are required for the discharge of fill into wetlands
that are greater than 1.2 ha (3 ac) in size. The review process for the
issuance of individual permits is more extensive, and conditions may be
included that require the avoidance or mitigation of environmental
impacts. The Corps has discretionary authority and can require an
applicant to seek an individual permit if the Corps believes that the
resources are sufficiently important, regardless of the wetland's size.
In practice, the Corps rarely requires an individual permit when a
project would qualify for a Nationwide Permit, unless a federally
threatened, endangered, or proposed species occurs on the site. If a
federally threatened or endangered species or a proposed species may be
affected by a proposed project, the Corps must ensure that it does not
authorize, fund or carry out any action that is likely to jeopardize
the species' continued existence, pursuant to section 7(a)(2) of the
Endangered Species Act. Therefore, if an applicant's project site has
one or more listed species on it, the Corps would be required to enter
into
[[Page 61958]]
consultation with the Service. Should P. hirtus become listed, the
species may be afforded increased protection through consultation on
Corps permits.
In addition, the Federal Highway Administration would become
involved with Plagiobothrys hirtus when highway maintenance is funded,
even in part, by the Federal government. Any State highway activity
being implemented by ODOT that is partly funded by the Federal
government would be subject to review under the Act. In addition,
Department of Housing and Urban Development projects and Natural
Resources Conservation Service projects in areas that presently support
P. hirtus would also be subject to review under section 7 of the Act.
Listing of this plant would provide for development of a recovery
plan for the plant. Such a plan would bring together State, Federal and
private efforts for conservation of the plant. The plan would establish
a framework for agencies to coordinate activities and cooperate with
each other in conservation efforts. The plan would set recovery
priorities, note responsible parties, and estimate costs of various
tasks necessary to accomplish them. It would also describe site-
specific management actions necessary to achieve conservation and
survival of the plant. Additionally, pursuant to section 6 of the Act,
the Service would be able to grant funds to Oregon for management
actions promoting the protection and recovery of this species.
Two sites currently receive some protective management. The site
owned and managed by ODOT has been designated as a Special Management
Area. Mowing is restricted to late in the fall when Plagiobothrys
hirtus is dormant (N. Testa, pers. comm. 1997). The other site in
protective ownership is owned and managed by TNC. This site, which
currently contains about 400 individual plants, is being actively
managed for the protection and development of P. hirtus habitat (Almasi
and Borgias 1996). Monitoring, life history studies, and
transplantation experiments using field-collected seed have been
initiated at these two sites. The objectives of these efforts are to
increase population sizes, and establish protocols for seed collection,
greenhouse propagation, and transplantation techniques (Amsberry and
Meinke 1997).
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered
plants. All prohibitions of section 9(a)(2) of the Act, implemented by
50 CFR 17.61, apply. These prohibitions, in part, make it illegal for
any person subject to the jurisdiction of the United States to import
or export, transport in interstate or foreign commerce in the course of
a commercial activity, sell or offer for sale in interstate or foreign
commerce, or remove and reduce the species to possession from areas
under Federal jurisdiction. In addition, for plants listed as
endangered, the Act prohibits the malicious damage or destruction on
areas under Federal jurisdiction and the removal, cutting, digging up,
or damaging or destroying of such plants in knowing violation of any
State law or regulation, including State criminal trespass law. Certain
exceptions to the prohibitions apply to agents of the Service and State
conservation agencies.
It is the policy of the Service, published in the Federal Register
on July 1, 1994 (59 FR 34272), to identify to the maximum extent
practicable at the time a species is listed those activities that would
or would not constitute a violation of section 9 of the Act. The intent
of this policy is to increase public awareness of the effect of the
listing on proposed and ongoing activities within a species' range.
Activities that would constitute a violation of section 9 of the Act
include removing, damaging or destroying Plagiobothrys hirtus in
violation of State law. In addition, collection on Federal lands
without a permit and other actions considered to be malicious damage to
the species on Federal lands would be prohibited, although P. hirtus is
not currently known to occur on Federal lands. Activities that are not
likely to violate section 9 of the Act include routine landscape
maintenance, clearing of vegetation for firebreaks, and livestock
grazing on privately-owned land. Questions regarding whether specific
activities may constitute a violation of section 9 should be addressed
to the State Supervisor of the Service's Oregon State Office (see
ADDRESSES section).
The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of
permits to carry out otherwise prohibited activities involving
endangered plants under certain circumstances. Such permits are
available for scientific purposes and to enhance the propagation or
survival of the species. Requests for copies of the regulations
concerning listed plants and animals and general inquiries regarding
prohibitions and permits may be addressed to the U.S. Fish and Wildlife
Service, Ecological Services, Endangered Species Permits, 911 N.E. 11th
Avenue, Portland, Oregon, 97232-4181 (503/231-2063; FAX 503/231-6243).
Public Comments Solicited
The Service intends that any final action resulting from this
proposal will be as accurate and as effective as possible. Therefore,
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule are hereby solicited. Comments are
particularly sought concerning:
(1) Biological, commercial trade, or other relevant data
concerning any threat (or lack thereof) to Plagiobothrys hirtus;
(2) The location of any additional occurrences of this species
and the reasons why any habitat should or should not be determined
to be critical habitat pursuant to section 4 of the Act;
(3) Additional information concerning the range, distribution,
and population size of this species; and
(4) Current or planned activities in the subject area and their
possible impacts on Plagiobothrys hirtus.
Any final decision on this proposal will take into consideration
the comments and any additional information received by the Service,
and such communications may lead to a final regulation that differs
from this proposal.
The Act provides for one or more public hearings on this proposal,
if requested. Requests must be received within 45 days of the date of
publication of the proposal in the Federal Register. Such requests must
be made in writing and addressed to the State Supervisor, Oregon State
Office (see ADDRESSES section).
National Environmental Policy Act
The Fish and Wildlife Service has determined that Environmental
Assessments and Environmental Impact Statements, as defined under the
authority of the National Environmental Policy Act of 1969, need not be
prepared in connection with regulations adopted pursuant to section
4(a) of the Endangered Species Act of 1973, as amended. A notice
outlining the Service's reasons for this designation was published in
the Federal Register on October 25, 1983 (48 FR 49244).
Required Determinations
The Service has examined this regulation under the Paperwork
Reduction Act of 1995, and found it to contain no information
collection requirements.
[[Page 61959]]
References Cited
Almasi, K. and D. Borgias. 1996. Monitoring plan: Plagiobothrys
hirtus ssp. hirtus. Unpublished report by The Nature Conservancy,
Southwestern Oregon Office, Ashland, OR. 5 pp.
Amsberry, K. and R.J. Meinke. 1997. Restoring the Popcorn-flower.
U.S. Fish and Wildlife Service Endangered Species Bulletin.
22(2):12-13.
Chambers, K. 1989. The Taxonomic Relationships of Allocarya
corallicarpa (Boraginaceae). Madrono 36(4):280-281.
Gamon, J., and J. Kagan. 1985. Status report for Plagiobothrys
hirtus. Unpublished report submitted to U.S. Fish and Wildlife
Service. 58 pp.
Greene, E.L. 1888. New or noteworthy species. Pittonia 1:161.
Lesica, P. and F. Allendorf. 1992. Are small populations of plants
worth preserving? Conservation Biology 6(1):135-139.
Meinke, R.J. 1982. Threatened and Endangered Vascular Plants of
Oregon: An Illustrated Guide. Unpublished report to the U.S. Fish
and Wildlife Service. 352 pp.
Oregon Natural Heritage Program. 1996. Biological Conservation
Database: Plagiobothrys hirtus Element Occurrence Records.
Unpublished report of the Oregon Natural Heritage Program, Portland,
Oregon. 12 pp.
Siddall, J.L. and K.L. Chambers. 1978. Status report for
Plagiobothrys hirtus ssp. hirtus. Unpublished report submitted to
the U.S. Fish and Wildlife Service. 10 pp.
Authors: The primary authors of this proposed rule are Josh Millman
and Cat Brown, U.S. Fish and Wildlife Service, Oregon State Office (see
ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species. Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, the Service hereby proposes to amend part 17,
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend Sec. 17.12(h) by adding the following, in alphabetical
order under FLOWERING PLANTS, to the List of Endangered and Threatened
Plants to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family Status When listed Critical Special
Scientific name Common Name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Flowering Plants
* * * * * * *
Plagiobothrys hirtus............. Rough popcornflower. U.S.A. (OR)........ Boraginaceae/borage E ........... NA NA
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: October 22, 1997.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 97-30473 Filed 11-19-97; 8:45 am]
BILLING CODE 4310-55-P
