[Federal Register Volume 64, Number 224 (Monday, November 22, 1999)]
[Rules and Regulations]
[Pages 63745-63752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30378]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AE54
Endangered and Threatened Wildlife and Plants; Determination of
Endangered Status for the Plant Lesquerella thamnophila (Zapata
Bladderpod)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
the plant Lesquerella thamnophila (Zapata bladderpod) to be an
endangered species under the authority of the Endangered Species Act
(Act) of 1973, as amended. Lesquerella thamnophila is currently known
from four locations in Starr and Zapata Counties, Texas. Increased
urban development, roadway construction, invasion of exotic species,
increased oil and gas activities, alteration and conversion of native
plant communities to improved pastures, overgrazing, and vulnerability
from low population numbers threaten this species.
EFFECTIVE DATE: This final rule is effective December 22, 1999.
ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours (8:00 am to 4:30 pm,
Monday through Friday), at the U.S. Fish and Wildlife Service,
Ecological Services Field Office, c/o Texas A&M University-Corpus
Christi, Campus Box 338, 6300 Ocean Drive, Corpus Christi, Texas 78412.
FOR FURTHER INFORMATION CONTACT: Field Supervisor of the Corpus Christi
Ecological Services Field Office at the
[[Page 63746]]
above address (Telephone 316-994-9005; Facsimile 361-994-8262).
SUPPLEMENTARY INFORMATION:
Background
Lesquerella thamnophila, a member of the Brassicaceae (mustard)
family, was first collected in Zapata County, Texas, by R. C. Rollins
in 1959. The species was named Lesquerella thamnophila in 1973 by R.C.
Rollins and E.A. Shaw in their work on the genus Lesquerella (Rollins
and Shaw 1973). The few collected specimens of Lesquerella thamnophila
have all come from Starr and Zapata Counties in southern Texas.
Lesquerella thamnophila is a pubescent (hairy), somewhat silvery-
green herbaceous (herblike) perennial plant, with sprawling stems 43-85
centimeters (cm) (17-34 inches (in)) long. The plant exhibits a taproot
system indicating a perennial life habit. It possesses narrow basal
leaves 4-12 cm (1.5-4.8 in) long, and 7-15 millimeters (mm) (0.3-0.6
in) wide, with entire to wavy or slightly toothed margins. Stem leaves
are 3-4 cm (1-1.5 in) long and 2-8 mm (0.1-0.3 in) wide, with margins
similar to basal leaves. The inflorescences (arrangement of flowers on
a single stalk) are loose racemes of bright yellow-petaled flowers (the
flowers are arranged along an axis with the lower flowers maturing
first), which appear at different times of the year depending upon
timing of rainfall. Fruits are round and 4.5-6.5 mm (0.2-0.8 in) in
diameter on short, downward curving pedicels (slender stalks) (Poole
1989).
Physical and climatic characteristics of Starr and Zapata Counties
include level to rolling topography and an average of 45-51 cm (18-20
in) of precipitation, with major peaks of rainfall in September and
May. Infrequent but heavy downpours associated with hurricanes and
tropical storms contribute to wide fluctuations in rainfall from year
to year, and skew the historical mean well above the yearly median.
Drought, a recurring event in south Texas, has a profound effect on
native vegetation. The range of Lesquerella thamnophila has been under
an extreme drought situation for a number of years, making it likely
that the plant would take advantage of any measure of rainfall to
flower and reproduce. The numbers of plants present in known
populations appear to fluctuate dramatically in response to
precipitation (Poole 1989).
Lesquerella thamnophila can occur on graveled to sandy-loam upland
terraces above the Rio Grande floodplain. The known populations are
associated with three Eocene-age geologic formations--Jackson, Laredo,
and Yegua, which have yielded fossiliferous (containing fossils) and
highly calcareous (containing calcium carbonate) sandstones and clays.
Known Starr County populations occur within the Jimenez-Quemado
soil association and on Catarina series soils. Jimenez-Quemado soils
are well-drained, shallow, and gravelly to sandy loam underlain by
caliche (a hard soil layer cemented by calcium carbonate). This soil
association is broad, dissected, and irregularly shaped, and occurs on
huge terraces 6-15 meters (20-50 feet) above the floodplains of the Rio
Grande. In most areas, the Jimenez soils occupy the slope breaks
extending from the tops of ridges to the bottoms of the slopes, and
narrow valleys between. Quemado soils occur as narrow areas on
ridgetops, where the slope range is 3-20 percent. Steep escarpments can
be present with rocky outcrops adjacent to the river floodplain.
Catarina series soils consist of clayey, saline upland soils developed
from calcareous, gypsiferous (containing gypsum), and or saline clays
that usually contain many drainages and erosional features. The
underlying material of the soils contain calcareous concretions (a
rounded mass of mineral matter), gypsum crystals, and marine shell
fragments (Thompson et al. 1972).
Bladderpod populations in Zapata County occur within the Zapata-
Maverick soil association. Zapata soils are shallow, loamy or mixed,
hyperthermic (high temperature), well-drained, and nearly level with
undulating slopes ranging from 0 to18 percent, primarily on uplands
occurring over caliche. The upper portion of the soil horizon ranges 5-
25 cm (2-10 in), with course fragments consisting of few to 25 percent
of angular caliche 2.5-20 cm (1-8 in) long, and combined with chert
gravel. Maverick soils consist of upland clayey soils occurring over
caliche with underlying calcareous material containing shale and gypsum
crystals (Thompson, et al. 1972). The upper zone consists of a
moderately deep soft shale bedrock, sloping 1-10 percent, well-drained,
and forming clayey sediments. Ancient deposition of rock material from
the Rio Grande can be found in these portions of the soil, and rock and
Indian artifact collection has become a pastime for residents and
visitors in the area.
Lesquerella thamnophila occurs as an herbaceous component of an
open Leucophyllum frutescens (cenizo) shrub community that grades into
an Acacia rigidula (blackbrush) shrub community. Both plant communities
dominate upland habitats on shallow soils near the Rio Grande (Diamond
1990). Other related plant species in the cenizo and blackbrush
communities include Acacia berlandieri (guajillo), Prosopis sp.
(mesquite), Celtis pallida (granjeno), Yucca treculeana (Spanish
dagger), Zizyphus obtusifolia (lotebush), and Guaiacum angustifolium
(guayacan). The coverage of an aggressively invasive, nonnative grass,
Cenchrus ciliaria (buffelgrass), is extensive at three of the four
extant sites and present at the fourth. Dichanthium annulatum
(Kleberg's bluestem), which is used for erosion control on roadways,
has also begun to invade natural areas and is present at all four
Lesquerella sites, although not as extensively as buffelgrass. These
shrublands are sparsely vegetated due to the shallow, fast-draining,
highly erosional soils and semi-arid climate (Poole 1989).
Livestock production is one of the major land uses for the area,
although wildlife rangeland production for hunting and recreational use
is becoming increasingly important. Major game species include white-
tailed deer (Odocoileus virginianus), quail (Colinus virginianus and
Callipepla squamata), mourning dove (Zenaida macroura), turkey
(Meleagris gallopavo), javelina (Pecari tajacu), and feral pig (Sus
scrofa). Oil and natural gas production has become one of the most
significant forms of income in the area due to a drought-induced
decrease in cattle production.
Overgrazing by livestock, root-plowing of shrubs, and subsequent
planting of buffelgrass for rangeland improvement has eliminated much
of the natural habitat. Buffelgrass, the forage plant used by most
ranchers in the area, has invaded natural areas and out-competed native
plants. Results from various invasive grass studies indicate that there
may be shade and root competition as well as possible allelopathic
effects (suppression of growth of one plant species by another due to
release of toxic substances) on native forbs and grasses (Nurdin and
Fulbright 1990).
Lesquerella thamnophila occurred historically in Starr and Zapata
Counties in the United States. We do not have information on Mexican
populations, although we have contacted biologists and botanists in
Mexico regarding its possible occurrence there and use as a medicinal
plant. One response indicated that the plant was historically found in
northern Mexico and was used as a poultice for open sores, wounds, and
skin eruptions (Garcia in Litt. 1999).
Since the first collection of Lesquerella thamnophila in 1959, and
nine additional populations of the plant
[[Page 63747]]
have been located since then. Of the ten total known populations, four
are believed to have been extirpated, two populations have not been
surveyed since 1996 due to restricted access to private lands, and four
sites are known to support extant populations.
Sites Believed To Be Extirpated
R. C. Rollins originally discovered Lesquerella thamnophila in 1959
in Zapata County, in a subdivision near Falcon Lake. This type locality
was relocated in 1985, when approximately 1,000 plants were seen within
a 5-hectare (ha) (15-acre (ac)) area. In 1986, the site was under a
drought condition, and no plants were found. Plants were located again
in 1988, but the numbers of plants were not recorded. Biologists from
the Texas Parks and Wildlife Department (TPWD) relocated the site in
1996, but saw no plants. Our personnel also found no plants in
September 1998 or April 1999. The habitat at this site has become
severely degraded. Soil has eroded into roadside ditches, buffelgrass
has invaded the sloping hillside, and housing construction has
eliminated much of the natural habitat of the area. The population has
likely been extirpated from this site.
In 1994, a site along an electric transmission line in southwestern
Starr County was reported, however, no specimen was collected, and no
plants have been seen at this site since then. In 1996, we discovered
another site consisting of about 50 plants, less than 1.6 kilometers (1
mile) northeast of the above-mentioned site along a roadside cut of
Highway 83. Surveys for this population were performed in 1997-1999. In
1998, one plant was observed, and in 1999, we found no plants at this
site. In 1995, we discovered a small site in the Highway 83 right-of-
way south of the city of Zapata. The TPWD and Service biologists found
one plant in 1998, but none were found in our April 1999 survey.
Extant Populations
In April 1994, TPWD personnel discovered a new Starr County
population of about 50 plants. We purchased this site as part of the
Lower Rio Grande Valley National Wildlife Refuge (LRGVNWR) complex and
began to monitor population numbers. In 1996, LRGVNWR biologists
recorded a total of 131 plants, 84 of which exhibited no seedling
productivity. In 1997, after high precipitation, the number of
individuals increased to several thousand within an approximately 1-ha
(2-3-ac) portion of the tract. In September 1998, we surveyed the site
and found few individuals, but one plant had produced two fruits. The
majority of plants seen were located under the canopy of associated
brush species. Previous to the survey, high amounts of precipitation
fell at the site, eroding soils, exposing the calcareous sandstone, and
leaving the root structure of some Lesquerella thamnophila plants
partially exposed. Where Lesquerella thamnophila individuals were
protected by associated plants, topsoil was retained, and the species
was less affected by heavy rains.
In April 1999, after resumption of drought conditions, only a few
Lesquerella thamnophila plants were found. However, in June we visited
the site after 10-15 cm (4-6 in) of rain had fallen in the area and
observed a large number of Lesquerella thamnophila plants flowering and
producing fruit. During a survey one week later, few flowers, but many
pods at various stages of development, were present. Close inspection
of the plants revealed possible predation on seeds within developed
pods. Botanists at the LRGVNWR are currently conducting habitat and
community structure studies of Lesquerella thamnophila and associated
species present at this site. The studies include investigations on
habitat composition and productivity in relation to shade effects,
relationships with other plant species, and the degree of successful
species propagation.
Another historical site in Zapata County, originally reported by
Lundell and Lundell in 1941, was re-verified by TPWD in 1985 (Poole
1989). Approximately 5,000 plants were found in this area on the east
side of Highway 83 located near the Arroyo Tigre Chiquito bridge. In
1986, during drought conditions, only 28 plants were seen. Plants were
again located in 1988, but no counts recorded. The TPWD and the Texas
Department of Transportation (TDOT) established a management agreement
to protect the site, and we and TPWD monitor this population annually.
The TPWD recorded 10 reproductive plants in 1991, no plants in 1992,
and 7 nonreproductive plants in 1995. No plants were found during 1996-
1998 surveys, however, TDOT biologists found five plants at the site in
1999.
In 1996, TPWD discovered about 100 plants in a vacant lot near the
Siesta Shores Subdivision in Zapata County, and in January 1998,
located many rosettes (plants whose leaves are spread flat at ground
level). We found one plant in July 1999, but extensive housing
construction had begun, which eliminated much of the potential habitat.
The population at the site could be extirpated unless conservation
measures can be implemented in the very near future.
In 1986, TPWD found 20 plants on a 2-ha (5-ac) tract of a privately
owned ranch in southwestern Starr County (Poole 1989). The TPWD
personnel observed the species again in 1994 but did not count
individuals. The TPWD biologists observed 20 or fewer individuals in
1996. In 1999, the site was confirmed to support plants, but no
information is available on the number of plants observed.
Populations for Which Status Is Unknown
Three Starr County populations, including the one above, were known
from private ranch sites near the towns of Roma and Los Saenz. Two of
the private ranch sites have not been visited by us or TPWD personnel
because we do not have permission to access these sites. Therefore, we
do not know the status of Lesquerella thamnophila at these sites.
Previous Federal Action
Federal action involving this species began with section 12 of the
Act (16 U.S.C. 1531 et seq.), which directed the Secretary of the
Smithsonian Institution to prepare a report on plants considered to be
endangered, threatened, or extinct. The report, designated as House
Document No. 94-51, was presented to Congress on January 9, 1975. On
July 1, 1975, we published a notice in the Federal Register (40 FR
27823) accepting the Smithsonian report as a petition within the
context of section 4(c)(2) of the Act, now section 4(b)(3)(A), and
announcing that we would initiate a review of the status of those
plants. Lesquerella thamnophila was included as threatened in the
Smithsonian report and in our notice.
On June 16, 1976 (41 FR 24523), we published a proposed rule to
determine approximately 1,700 species of vascular plants as endangered.
Lesquerella thamnophila was included in this proposal. However, the
1978 amendments to the Act required the withdrawal of all proposals
over 2 years old (although a 1-year grace period was allowed for those
proposals already over 2 years old). On December 10, 1979 (44 FR
70796), we published a notice withdrawing that portion of the June 16,
1976, proposal that had not been made final.
On December 15, 1980 (45 FR 82823), we published a list of plants
under review for listing as threatened or endangered, which included
Lesquerella thamnophila as a category 2 candidate. ``Category 2
candidates'' were those
[[Page 63748]]
species for which available information indicated listing as threatened
or endangered may have been appropriate, but for which substantial data
were not available to support preparation of a proposed rule.
Section 4(b)(3)(B) of the Act requires that we make findings on
petitions within 12 months of their receipt. Section 2(b)(1) of the
1982 amendments to the Act required that all petitions pending as of
October 13, 1982, be treated as having been submitted on that date. The
1975 Smithsonian report was accepted as a petition, and all the plants
noted within the report, including Lesquerella thamnophila, were
treated as being newly petitioned on October 13, 1982. In each
subsequent year from 1983 to 1993, we determined that listing
Lesquerella thamnophila was warranted, but precluded by other listing
actions of higher priority, and that additional data on vulnerability
and threats were still being compiled.
A status report on Lesquerella thamnophila was completed August 8,
1989 (Poole 1989). That report provided sufficient information on
biological vulnerability and threats to warrant designating the species
as a category 1 candidate and to support preparation of a proposed rule
to list Lesquerella thamnophila as endangered. ``'Category 1
candidates''' were those species for which we had substantial
information indicating that listing under the Act was warranted.
Notices revising the 1980 list of plants under review for listing
as endangered or threatened were published in the Federal Register on
September 27, 1985 (50 FR 39626), February 21, 1990 (55 FR 6184), and
September 30, 1993 (58 FR 51171). Lesquerella thamnophila was included
in the September 30, 1993, notice as a category 1 candidate.
Upon publication of the February 28, 1996, Notice of Review (61 FR
7605), we ceased using category designations and included Lesquerella
thamnophila as a candidate species. Candidate species are those for
which we have on file sufficient information on biological
vulnerability and threats to support proposals to list them as
threatened or endangered species. We retained Lesquerella thamnophila
as a candidate species in the September 19, 1997, Review of Plant and
Animal Taxa (62 FR 49398). On January 22, 1998 (63 FR 3301), we
published a proposed rule to list Lesquerella thamnophila as
endangered, without critical habitat, in the Federal Register. We
invited the public and State and Federal agencies to comment on the
proposed listing.
The processing of this final rule conforms with our Listing
Priority Guidance published in the Federal Register on October 22, 1999
(64 FR 57114). The guidance clarifies the order in which we will
process rulemakings. Highest priority is processing emergency listing
rules for any species determined to face a significant and imminent
risk to its well-being (Priority 1). Second priority (Priority 2) is
processing final determinations on proposed additions to the lists of
endangered and threatened wildlife and plants. Third priority is
processing new proposals to add species to the lists. The processing of
administrative petition findings (petitions filed under section 4 of
the Act) is the fourth priority. The processing of critical habitat
determinations (prudency and determinability decisions) and proposed or
final designations of critical habitat will be funded separately from
other section 4 listing actions and will no longer be subject to
prioritization under the Listing Priority Guidance. This final rule is
a Priority 2 action and is being completed in accordance with the
current Listing Priority Guidance. We have updated this rule to reflect
any changes in information concerning distribution, status, and threats
since the publication of the proposed rule.
Summary of Comments and Recommendations
The January 22, 1998, proposed rule and associated notification
requested all interested parties to submit factual reports or
information that might contribute to the development of a final rule.
We published newspaper notices of the proposed rule in the Brownsville
Herald on February 4, 1998; the Monitor (McAllen), the Valley Morning
Star (Harlingen), the Rio Grande City Herald, and the Zapata News on
February 5, 1998; and the February monthly issue of LareDOS (Laredo).
The public comment period was open for 60 days, from January 22 to
March 23, 1998.
Five commenters, including the State and four individuals or
groups, commented on the proposed rule. Three commenters opposed the
listing; one commenter was neutral on listing; and one supported the
listing. Issues raised by the commentors are discussed below.
Issue 1: The listing of the plant poses a threat to landowners who
earn their livelihood by cattle ranching or oil and gas production.
Listing would also threaten the success of the North American Free
Trade Agreement (NAFTA) by postponing construction of various roadways
within south Texas.
Response: The Act prohibits us from considering economic and other
nonbiological factors in listing decisions. However, once a species is
listed, we strive to minimize adverse economic impacts when considering
how best to conserve listed species. The Act provides protection to
listed plant species when landowners seek Federal permits, funding, or
Federal loans for a land development project or other activities that
may affect the species. Section 7(a)(2) of the Act requires Federal
agencies to ensure that activities (such as road building) they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. Early coordination with State and Federal
agencies can help minimize economic impacts and avoid unnecessary
delays in project implementation.
Endangered plants are not protected on private lands except when
taken in knowing violation of a State law or regulation, including
State criminal trespass law. However, we hope that listing the species
will alert private landowners to the need to protect it and encourage
them to work with us to develop conservation measures that will benefit
both the landowner and the species.
Issue 2: Additional surveys should be performed after rain events,
and biological information should be gathered prior to listing,
possibly to preclude listing.
Response: Extirpations at historical sites and the apparent decline
of extant Lesquerella thamnophila populations necessitates protecting
the few known surviving plants under the Act. Should additional surveys
and biological data indicate that the populations are more viable than
most recently demonstrated, we would consider that information in
formulating a recovery strategy for the species. Although the decrease
in population number and size appears correlated with drought
conditions, it is not known whether the remaining populations would
rebound sufficiently following future rain events to justify not
listing the species. Furthermore, delaying the listing process would
increase the risk that more bladderpod populations would disappear.
Because there are only four known populations scattered over a large
geographical area, each loss decreases genetic variability and reduces
the chances of the species' survival even after normal rainfall
returns. The best scientific and commercial information available
indicates that the species' existence is too precarious to delay the
protections afforded by the Act.
Peer Review
Our July 1, 1994, Peer Review Policy (59 FR 34270) requires that we
solicit
[[Page 63749]]
the opinions of at least three independent specialists regarding
pertinent scientific or commercial data on proposed species listings.
We provided the proposed rule to 29 botanists and biologists outside
the Service and asked for their review of the proposed action. We
received responses from three biologists. Two supported listing the
species and provided corrections to the proposed rule and other
information. One respondent opposed listing on the grounds that further
surveys would likely reveal additional populations, however, this
scientist agreed that current information supports listing the species.
Summary of Factors Affecting the Species
After a thorough review and consideration of all information
available, we determined that Lesquerella thamnophila should be
classified as an endangered species. We followed procedures found at
section 4(a)(1) of the Act and the regulations implementing the listing
provisions of the Act (50 CFR part 424). We may determine a species to
be endangered or threatened due to one or more of the five factors
described in section 4(a)(1). These factors and their application to
Lesquerella thamnophila (Zapata bladderpod) (Rollins and Shaw), are as
follows:
A. The present or threatened destruction, modification, or
curtailment of its habitat or range. Habitat destruction and
modification are the primary threats to Lesquerella thamnophila. These
threats include the introduction of nonnative pasture grasses, such as
buffelgrass, and conversion of native rangeland to improved pasture,
overgrazing, urban development, construction or improvement of highways
and utility transmission systems necessary to support urban
infrastructures, and oil and gas exploration and production. These
types of activities have destroyed or altered more than 95 percent of
the native habitat in south Texas (Jahrsdoerfer and Leslie 1988).
A common practice in south Texas to improve rangeland for livestock
production is to remove native shrubs through root-plowing or aerial
herbicide application and then re-seeding the area with nonnative
grasses. This practice potentially destroys Lesquerella thamnophila and
its habitat. Buffelgrass has spread beyond improved pastureland and is
now present throughout a large portion of south Texas. This invasive
nonnative grass outcompetes and displaces native grasses, herbs, and
small shrubs. Possible mechanisms for displacement of native species by
invasive nonnatives could be loss of sites for native plant seedling
establishment, light and moisture competition, and possibly
allelopathic effects (Nurdin and Fulbright 1990).
Much of south Texas has been affected by long-term grazing, and
grazing continues to be an established practice on private lands.
Vegetation of the semi-arid south Texas climate is less resilient to
the impacts of long-term grazing than is the vegetation of wetter
climates. This situation has led to severe depletion of the often
highly erodible south Texas soils (Schlesinger, et al. 1990). It is
impossible to calculate how much habitat occupied by Zapata bladderpod
may have been lost due to the effects of long-term grazing and
conversion of native rangeland to improved pasture.
Lesquerella thamnophila is also threatened by potential urban
development. Habitat at the type locality for this species has been
reduced to a small vacant lot in a resort subdivision near Falcon
Reservoir in the City of Zapata, Texas. This area is undergoing rapid
development. Another Lesquerella thamnophila population, which had
occurred in an abandoned trailer park, has disappeared. The current
trend toward urbanization, including increased construction of
convenience stores in the area, could extirpate remaining populations.
South Texas is experiencing a rapid increase in highway
improvements and construction to handle increased traffic stimulated by
NAFTA. Existing roads that may be proposed for widening and/or paving
lie adjacent to Lesquerella thamnophila populations. In addition,
nonnative Kleberg's bluestem (Dichanthium annulatum) is used for
errosion control, and that species is present at the known Lesquerella
sites.
South Texas is presently undergoing a significant increase in oil
and gas exploration and production, especially in Zapata and Starr
Counties. All phases of exploration and production have the potential
to impact Lesquerella thamnophila populations and habitat. Seismic
exploration requires clearing of extensive, temporary rights-of-way to
facilitate equipment traffic. The construction of well pads, access and
egress roads, electrical lines, and petroleum gathering lines from
wells, if not planned properly, may destroy native habitat. The re-
seeding of nonnative grasses in pipeline rights-of-way not only hampers
re-colonization by native species but further spreads invasive species
that will displace native vegetation.
B. Overutilization for commercial, recreational, scientific, or
educational purposes. Although reported to have medicinal values, the
species is not known to be a product in commercial trade.
C. Disease or predation. The populations of Lesquerella thamnophila
have shown no evidence of disease. However, Poole (1989) reports that
cattle graze Lesquerella to the extent that numbers of plants in
populations subjected to grazing are severely reduced compared to those
in adjacent, ungrazed lands. In addition, our biologists surveying for
the plant at a site owned and protected by the LRGVNWR found evidence
of browsing by native animal species on the plants. While consumption
by herbivores is a natural event, browsing can be a greater threat
during drought conditions when range quality is reduced and other
forage species have been reduced or removed. The small number of extant
sites and the low number of plants can result in greater susceptibility
to browsing than likely was present when populations were at historical
levels. The plants in this portion of south Texas are sensitive to
browsing during drought conditions due to the semi-arid environment and
the sparseness of vegetation, even under ideal range conditions.
Additionally, biologists have discovered evidence of predation on seed
material of Zapata bladderpod during status surveys.
D. The inadequacy of existing regulatory mechanisms. The species is
not currently protected by any Federal or State laws or regulations.
E. Other natural or man-made factors affecting its continued
existence. Lesquerella thamnophila populations adjacent to maintained
highway rights-of-way are exposed to herbicides used to control
vegetation around bridges, guardrails, signs, and reflector posts.
Maintenance crews may also use herbicides to kill woody species
encroaching into the rights-of-way and along fence lines. Any plants
within these areas are also threatened by maintenance practices such as
blading, disking, and re-seeding with erosion control seed mixtures
that contain primarily non-native invasive grasses.
Only four known Lesquerella thamnophila populations are known to
exist, and these have widely fluctuating numbers of plants from year to
year. The low plant numbers usually seen in these populations during
drought years can result in genetic drift which can restrict genetic
variability reducing the species' ability to overcome environmental
stresses. The reduced number of plants during drought years, with
populations
[[Page 63750]]
in some areas falling to zero above-ground vegetative individuals, also
makes the species vulnerable to extinction from prolonged drought
situations. The extreme rarity of this species makes populations
vulnerable to extirpation and extinction from the variety of random
environmental events mentioned, as well as human exploitation of its
habitat.
In finalizing this rule, we carefully assessed the best scientific
and commercial information available regarding the past, present, and
future threats faced by the species. Based on this evaluation, the
preferred action is to list Lesquerella thamnophila as endangered. The
Act defines an endangered species as one that is in danger of
extinction throughout all or a significant portion of its range. A
threatened species is defined as one that is likely to become an
endangered species in the foreseeable future throughout all or a
significant portion of its range. Endangered status is appropriate
because of the species' limited distribution, low population numbers,
and imminent threats of habitat destruction. Threatened status would
not accurately reflect the current status of this species.
Critical Habitat
Critical habitat is defined in section 3 of the Act as--(i) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection and; (ii) specific areas outside the
geographic 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.
In the proposed rule, we indicated that designation of critical
habitat was not prudent for Lesquerella thamnophila because of a
concern that publication of precise maps and descriptions of critical
habitat in the Federal Register could increase the vulnerability of
this species to incidents of collection and vandalism. We also
indicated that designation of critical habitat was not prudent because
we believed it would not provide any additional benefit beyond that
provided through listing as endangered.
In the last few years, a series of court decisions have overturned
Service determinations regarding a variety of species that designation
of critical habitat would not be prudent (e.g., Natural Resources
Defense Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th
Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d
1280 (D. Hawaii 1998)). Based on the standards applied in those
judicial opinions, we have reexamined the question of whether critical
habitat for Lesquerella thamnophila would be prudent.
Due to the small number of populations, Lesquerella thamnophila is
vulnerable to unrestricted collection, vandalism, or other disturbance.
We remain concerned that these threats might be exacerbated by the
publication of critical habitat maps and further dissemination of
locational information. However, we have examined the evidence
available for Lesquerella thamnophila and have not found specific
evidence of taking, vandalism, collection, or trade of this species or
any similarly situated species. Consequently, consistent with
applicable regulations (50 CFR 424.12(a)(1)(i)) and recent case law, we
do not expect that the identification of critical habitat will increase
the degree of threat to this species of taking or other human activity.
In the absence of a finding that critical habitat would increase
threats to a species, if there are any benefits to critical habitat
designation, then a prudent finding is warranted. In the case of this
species, there may be some benefits to designation of critical habitat.
The primary regulatory effect of critical habitat is the section 7
requirement that Federal agencies refrain from taking any action that
destroys or adversely modifies critical habitat. While a critical
habitat designation for habitat currently occupied by this species
would not be likely to change the section 7 consultation outcome
because an action that destroys or adversely modifies such critical
habitat would also be likely to result in jeopardy to the species,
there may be instances where section 7 consultation would be triggered
only if critical habitat is designated. Examples could include
unoccupied habitat or occupied habitat that may become unoccupied in
the future. There may also be some educational or informational
benefits to designating critical habitat. Therefore, we find that
critical habitat is prudent for Lesquerella thamnophila.
The Final Listing Priority Guidance for FY 2000 (64 FR 57114)
states, ``The processing of critical habitat determinations (prudency
and determinability decisions) and proposed or final designations of
critical habitat will be funded separately from other section 4 listing
actions and will no longer be subject to prioritization under the
Listing Priority Guidance. Critical habitat determinations, which were
previously included in final listing rules published in the Federal
Register, may now be processed separately, in which case stand-alone
critical habitat determinations will be published as notices in the
Federal Register. We will undertake critical habitat determinations and
designations during FY 2000 as allowed by our funding allocation for
that year.'' As explained in detail in the Listing Priority Guidance,
our listing budget is currently insufficient to allow us to immediately
complete all of the listing actions required by the Act. Deferral of
the critical habitat designation for Lesquerella thamnophila will allow
us to concentrate our limited resources on higher priority critical
habitat and other listing actions, while allowing us to put in place
protections needed for the conservation of Lesquerella thamnophila
without further delay.
We plan to employ a priority system for deciding which outstanding
critical habitat designations should be addressed first. We will focus
our efforts on those designations that will provide the most
conservation benefit, taking into consideration the efficacy of
critical habitat designation in addressing the threats to the species,
and the magnitude and immediacy of those threats. We will develop a
proposal to designate critical habitat for the Lesquerella thamnophila
as soon as feasible, considering our workload priorities.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, preservation programs, and
prohibitions against certain practices. Recognition through listing
results in public awareness and conservation actions by Federal, State,
and local agencies, as well as by private organizations and
individuals. The Act provides for possible land acquisition,
cooperation with the States, and requires that all Federal agencies use
their authorities to carry out programs for the conservation of all
listed species. The protection required of Federal agencies and the
prohibitions against certain activities involving listed plants are
discussed, in part, below.
[[Page 63751]]
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as threatened or endangered 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)(2) requires Federal agencies to ensure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of a listed species, or destroy or
adversely modify its critical habitat. If a Federal action may affect a
listed species, the responsible Federal agency must enter into
consultation with us.
Federal agency actions that may require consultation as described
in the preceding paragraph include, but are not limited to, brush
clearing for flood control in arroyos within the jurisdiction of the
International Boundary and Water Commission; technical assistance to
landowners by the Natural Resource Conservation Service (formerly Soil
Conservation Service) for activities funded by the Consolidated Farm
Service Agency (formerly Agricultural Stabilization and Conservation
Service); and rangeland herbicide or pesticide registration by the
Environmental Protection Agency. The Federal Highway Administration
will need to consider the occurrence of the species in activities such
as widening existing roadways, or constructing new highways, as well as
some maintenance practices. The U.S. Department of Housing and Urban
Development will need to consider this species when it permits or funds
water, sewer, and power services for settlements. The Federal Energy
Regulatory Commission will need to consider the occurrence of the
species when it approves interstate pipelines and electrical
transmission lines, especially in previously undisturbed natural areas.
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 any such plant species; or to remove and reduce the species to
possession from areas under Federal jurisdiction. In addition, the Act
prohibits the malicious damage or destruction of such plants on areas
under Federal jurisdiction; and the removal, cutting, digging up, or
damaging or destroying of such plants in any other area, including non-
Federal lands, in knowing violation of any State law or regulation, or
in the course of any violation of a State criminal trespass law.
Certain exceptions to the prohibitions apply to agents of the Fish and
Wildlife Service and State conservation agencies.
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. We anticipate that few trade permits would
ever be sought or issued because this species is not in cultivation nor
common in the wild.
Our policy (59 FR 34272) is 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.
We believe that, based on the best information available at this
time, the following actions will not result in a violation of section
9, provided these activities are carried out in accordance with
existing laws and regulations, including State laws and regulations,
and permit requirements:
(1) Activities authorized, funded, or carried out by Federal
agencies (e.g., grazing management, agricultural conversions, flood and
erosion control, residential development, recreational trail
development, road construction, hazardous material containment and
cleanup activities, prescribed burns, pesticide/herbicide application,
construction or maintenance of pipelines or utility lines), when
conducted in accordance with any reasonable and prudent measures given
by us in a consultation under section 7 of the Act;
(2) Casual, dispersed human activities on foot or horseback (e.g.,
birding, sightseeing, photography, camping, or hiking);
(3) Activities on private lands that do not require Federal
authorization and do not involve Federal funding, such as grazing
management, agricultural conversions, flood and erosion control,
residential development, road construction, and pesticide/herbicide
application when consistent with label restrictions;
(4) Residential landscape maintenance, including the clearing of
vegetation around one's personal residence as a fire break.
We believe that the following might result in a violation of
section 9; however, possible violations are not limited to these
actions alone:
(1) Collection, damage, or destruction of Lesquerella thamnophila
on Federal lands without a Federal permit. Lesquerella thamnophila
occurs on Federal lands under our jurisdiction.
(2) Collection, damage, or destruction of this species on non-
Federal land if conducted in knowing violation of State law or
regulations, or in the course of any violation of a State criminal
trespass law.
(3) Interstate or foreign commerce and import/export without
previously obtaining an appropriate permit. Permits are available for
purposes of scientific research and enhancement or survival of the
species.
Questions regarding whether specific activities may constitute a
violation of section 9 should be directed to the Field Supervisor of
our Corpus Christi Ecological Services Field Office (see ADDRESSES
section). Requests for copies of the regulations regarding listed
plants and inquiries about prohibitions and permits may be addressed
to--U.S. Fish and Wildlife Service, Branch of Endangered Species/
Permits, PO Box 1306, Albuquerque, New Mexico 87103 (telephone 505-248-
6920; facsimile 505-248-6922).
National Environmental Policy Act
We determined we do not need to prepare Environmental Assessments
and Environmental Impact Statements, as defined under the authority of
the National Environmental Policy Act of 1969, in connection with
regulations adopted pursuant to section 4(a) of the Act. We published a
notice outlining our reasons for this determination in the Federal
Register on October 25, 1983 (48 FR 49244).
Required Determinations
This rule does not contain any information collection requirements
for which Office of Management and Budget (OMB) approval is required
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). An
information collection related to the rule pertaining to permits for
endangered and threatened species has OMB approval and is assigned
clearance number 1018-0094. An agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number. This rule does
not alter that information collection requirement.
[[Page 63752]]
References Cited
Diamond, D. 1990. Plant Communities of Texas (series level). Texas
Parks and Wildlife Department. Austin, Texas.
Jahrsdoerfer, S.E. and D.M. Leslie, Jr. 1988. Tamaulipan Brushland
of the Lower Rio Grande Valley of South Texas: Description, Human
Impacts, and Management Options. U.S. Fish and Wildlife Service,
Biological Report. 88(36). 63 pp.
Nurdin, and T. E. Fulbright. 1990. Germination of Two Legumes in
Leachate from Introduced Grasses. Journal of Range Management 43: 5.
Poole, J. 1989. Status Report on Lesquerella thamnophila. U.S. Fish
and Wildlife Service, Albuquerque, New Mexico.
Rollins, R.C. and E.A. Shaw. 1973. The Genus Lesquerella. Harvard
University Press, Cambridge, Massachusetts.
Schlesinger, W.H., J.F. Reynolds, G.L. Cunningham, L.F. Huenneke,
and W.G. Whitford. 1990. Biological Feedbacks in Global
Desertification. Science 247:1043-1047.
Thompson, C.M., R.R. Sanders, and D. Williams. 1972. Soil Survey of
Starr County, Texas. U.S. Department of Agriculture. Soil
Conservation Service, Temple, Texas.
Authors:
The primary authors of this document are Loretta Pressly, Kathy
Nemec, and Angie Brooks. Major contributors to this document are Robyn
A. Cobb and Ernesto Reyes (see ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Final Regulation Promulgation
For the reasons outlined in the preamble, we amend part 17,
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as follows:
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:
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
* * * * * * *
Lesquerella thamnophila.......... Zapata bladderpod... U.S.A. (TX)........ Cruciferae......... E 671 N/A N/A
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: November 16, 1999.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 99-30378 Filed 11-19-99; 8:45 am]
BILLING CODE 4310-55-P
