96-32541. Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for Lesquerella Perforata (Spring Creek Bladderpod)  

  • [Federal Register Volume 61, Number 247 (Monday, December 23, 1996)]
    [Rules and Regulations]
    [Pages 67493-67497]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 96-32541]
    
    
    =======================================================================
    -----------------------------------------------------------------------
    
    DEPARTMENT OF THE INTERIOR
    
    Fish and Wildlife Service
    
    50 CFR Part 17
    
    RIN 1018-AC42
    
    
    Endangered and Threatened Wildlife and Plants; Determination of 
    Endangered Status for Lesquerella Perforata (Spring Creek Bladderpod)
    
    AGENCY: Fish and Wildlife Service, Interior.
    
    ACTION: Final rule.
    
    -----------------------------------------------------------------------
    
    SUMMARY: The U.S. Fish and Wildlife Service (Service) determines 
    endangered status for Spring Creek bladderpod pursuant to the 
    Endangered Species Act of 1973, as amended (Act). This rare plant is 
    presently known from only a limited area within Tennessee's Central 
    Basin. It is threatened by habitat alteration; residential, commercial, 
    or industrial development; livestock-grazing; conversion of its limited 
    habitat to pasture; and habitat encroachment by woody vegetation and 
    herbaceous perennials.
    
    DATES: This rule is effective January 22, 1997.
    
    
    [[Page 67494]]
    
    
    ADDRESSES: The complete administrative file of this rule is available 
    for inspection, by appointment, during normal business hours at the 
    Asheville Field Office, U.S. Fish and Wildlife Service, 160 Zillicoa 
    Street, Asheville, North Carolina 28801.
    
    FOR FURTHER INFORMATION CONTACT: Mr. Robert R. Currie at the above 
    address (704/258-3939, Ext. 224).
    
    SUPPLEMENTARY INFORMATION:
    
    Background
    
        Lesquerella perforata (Spring Creek bladderpod), described by R. C. 
    Rollins (Rollins 1952), occurs within a small area in Wilson County in 
    the vicinity of Lebanon, Tennessee. This winter annual is 2 to 4 
    decimeters (8 to 16 inches) tall. Its auriculate leaves are oblong to 
    ovate in shape. The flowers have petals that are 7 to 10 millimeters 
    (0.3 to 0.4 inch) long and are white to lavender in color. It has a 
    broadly ovoid-shaped fruit that is hairless on the outside and densely 
    pubescent on the inside. An internal partition between the two halves 
    of the fruit is ``perforated'' or missing.
        Lesquerella perforata is a winter annual that germinates in early 
    fall, over-winters as small rosettes of leaves, and flowers the 
    following spring. Flowering usually occurs in March and April. Soon 
    after the flowers wither, the fruits mature and the plants die. The 
    fruits split open and the enclosed seeds fall to the ground and lay 
    dormant until the fall, when the cycle starts over again. If conditions 
    are not suitable for germination the following fall, the seeds can 
    remain dormant (but viable) for several years (Kral 1983, Rollins 1952, 
    Rollins 1955, Baskin and Baskin 1990).
        This species is typically found growing on flood plains. It 
    requires annual disturbance in order to complete its life cycle. 
    Historically, this disturbance was probably provided by periodic 
    flooding of the streams along which it occurs. This flooding is thought 
    to have removed the perennial grasses and woody plants that quickly 
    invade the flood plains without regular natural or artificial 
    disturbance. Cultivation of annual crops, such as corn, provides an 
    excellent means of artificially maintaining the habitat, provided there 
    is no fall plowing and herbicide use is limited. No-till farming 
    techniques are believed to adversely affect the species because of the 
    extensive use of herbicides required to successfully implement the 
    technique. Row-crop cultivation, which avoids the use of fall plowing 
    and delays spring plowing until the majority of the plants have set 
    fruit, does not seem to adversely affect the species (Somers et al. 
    1993; Somers, Massachusetts Natural Heritage and Endangered Species 
    Program, personal communication, 1992).
        Lesquerella perforata is known from four populations consisting of 
    13 extant sites in Wilson County, Tennessee. Three additional sites no 
    longer support the species. One of the extant populations occurs along 
    Spring Creek and consists of five groups of plants. Another, consisting 
    of four groups of plants, is found along Lower Bartons Creek. Two sites 
    are located farther upstream and are designated the Middle Bartons 
    Creek population. The fourth population consists of two sites and is 
    located along a tributary of Bartons Creek. All of the known sites for 
    the species are found within a few miles of each other; with only one 
    exception, sites are within the flood plains of Spring and Bartons 
    Creeks or within the floodplain of a Bartons Creek tributary. The only 
    non-floodplain location is within a gladey area slightly above the 
    floodplain of Spring Creek (Somers et al. 1993). All of the known sites 
    supporting L. perforata are privately owned, and none are protected 
    through cooperative management agreements with the State or the 
    Service.
        The following site specific information is from Somers et al. 
    (1993).
        Spring Creek Population--Site 1 is the largest known site for the 
    species and is also the L. perforata type locality. In 1992, the site 
    supported over 100,000 individuals. Although this is a significant 
    population, plants were much denser and the area supporting them was 
    larger in 1980. Site 2 is a field that supported about 500 plants in 
    1992. Site 3 supported 25,000 to 50,000 plants in 1992. Site 4 is a 
    small area, about 90 feet long and 43 feet wide, supporting between 
    1,000 and 5,000 plants in 1992. Site 5 is the only non-floodplain site 
    for the species and was discovered during the 1992 field work to update 
    the status of L. perforata. The area is a triangular-shaped glade that 
    is about 150 feet long and about 100 feet wide at its widest point. The 
    site was estimated to support between 500 and 1,000 plants in 1992.
        Lower Bartons Creek Population--Site 6 is a small site that 
    supported about 1,000 plants in 1992. Site 7 is a small site that 
    supported two small clumps (30 feet by 5 feet) of the species in 1992. 
    Site 8 is a small site that supported only a few plants in 1992. Site 9 
    is a medium-sized site that supported about 10,000 plants in 1992.
        Middle Bartons Creek Population--Site 10 is a small tract in an 
    industrialized area near Lebanon that supported about 600 plants in 
    1992. Site 11 is near Site 10 but supports a larger colony of about 
    5,000 plants.
        Bartons Creek Tributary Population--Site 12 is located along 1,000 
    feet of the floodplain of an ephemeral tributary of Bartons Creek. In 
    1992, it supported about 450 plants. Site 13 is a small area located 
    near Site 12; it contains only a few individuals. In 1992, the area was 
    overgrown with dense herbaceous growth.
    
    Previous Federal Action
    
        Federal government actions on this species began with section 12 of 
    the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), which 
    directed the Secretary of the Smithsonian Institution to prepare a 
    report on those plants considered to be endangered, threatened, or 
    extinct. This 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 (40 FR 27823) that formally accepted the Smithsonian 
    report as a petition within the context of section 4(c)(2) (now section 
    4(b)(3)) of the Act. By accepting this report as a petition, the 
    Service also acknowledged its intention to review the status of those 
    plant taxa named within the report. Lesquerella perforata was included 
    in the Smithsonian report and the July 1, 1975, notice of review. On 
    June 16, 1976, the Service published a proposed rule (41 FR 24523) to 
    determine approximately 1,700 vascular plant taxa to be endangered 
    species pursuant to Section 4 of the Act; L. perforata was included in 
    this proposal.
        The 1978 amendments to the Act required that all proposals over 2 
    years old be withdrawn. On December 10, 1979, (44 FR 70796), the 
    Service published a notice withdrawing plants proposed on June 16, 
    1976. Lesquerella perforata was included as a Candidate species in the 
    revised notice of review for native plants published on December 15, 
    1980 (45 FR 82480). Candidate species are those for which the Service 
    has sufficient information on biological vulnerability and threat(s) to 
    support issuance of a proposed rule to list. This species was 
    maintained as a Candidate when the notice of review for native plants 
    was revised in 1983 (48 FR 53640) and again in 1985 (50 FR 39526), 1990 
    (55 FR 6184), and 1993 (58 FR 51144).
        The Service funded a survey in 1992 to update the status 
    information on L. perforata. A final report was received in February 
    1993. During the 1992 and 1993 field seasons, personnel with the 
    Tennessee Department of Environment and Conservation conducted 
    extensive inventories of all the known and
    
    [[Page 67495]]
    
    potential sites for this species. Based upon this final report, the 
    Service developed a proposed rule to list the species as endangered. 
    The proposal was published in the Federal Register on August 23, 1994 
    (59 FR 43322).
        The processing of this final rule conforms with the Service's final 
    listing priority guidance published in the Federal Register on May 16, 
    1996 (61 FR 24722). The guidance clarifies the order in which the 
    Service will process rulemakings following two related events--(1) the 
    lifting, April 26, 1996, of the moratorium on final listings imposed on 
    April 10, 1995 (Public Law 104-6); and (2) the restoration of 
    significant funding for listing through the passage of the omnibus 
    budget reconciliation law on April 26, 1996, following severe funding 
    constraints imposed by a number of continuing resolutions between 
    November 1995 and April 1996. The guidance calls for giving highest 
    priority to handling emergency situations (Tier 1) and second highest 
    priority (Tier 2) to resolving the listing status of the outstanding 
    proposed listings. This final rule falls under Tier 2. At this time 
    there are no pending Tier 1 actions. In the development of this final 
    rule, the Service has conducted an internal review of available 
    Service-generated information. Based on this review, the Service has 
    determined that there is no new information that would substantively 
    affect this listing decision and that additional public comment is not 
    warranted.
    
    Summary of Comments and Recommendations
    
        In the August 23, 1994, proposed rule and associated notifications, 
    all interested parties were requested to submit factual reports or 
    information that might contribute to the development of a final rule. 
    Appropriate State agencies, county governments, Federal agencies, 
    scientific organizations, and other interested parties were contacted 
    and requested to comment. A newspaper notice announcing the Federal 
    Register publication of the proposed rule was published in the Lebanon 
    Democrat, Lebanon, Tennessee, on September 12, 1994.
        No written responses to the proposed rule were received during the 
    comment period. The Tennessee Department of Environment and 
    Conservation reiterated their support for the addition of Spring Creek 
    bladderpod to the Federal list (Milo Pyne, Botanist, personal 
    communication, 1994).
        The Service also solicited the expert opinions of 21 appropriate 
    and independent experts in this species or in rare plant conservation 
    regarding the pertinent scientific or commercial data and assumptions 
    relating to taxonomy, population status, and biological and ecological 
    information on this species. No responses were received.
    
    Summary of Factors Affecting the Species
    
        After a thorough review and consideration of all information 
    available, the Service has determined that Spring Creek bladderpod 
    should be classified as an endangered species. Procedures found at 
    Section 4(a)(1) of the Act and regulations (50 CFR Part 424) issued to 
    implement these listing provisions were followed. 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). These factors and 
    their application to Lesquerella perforata Rollins (Spring Creek 
    bladderpod) are as follows:
        A. The present or threatened destruction, modification, or 
    curtailment of its habitat or range. Most of the known locations for 
    this species are threatened by the encroachment of more competitive 
    herbaceous vegetation and/or woody plants. Active management is 
    required to ensure that the species continues to survive at all sites. 
    Direct destruction of habitat for commercial, residential, or 
    industrial development is the most significant threat to the species at 
    this time. Lesquerella perforata is threatened by the loss of habitat 
    through conversion of land to uses other than cultivation of annual 
    crops. Historically, its habitat was maintained by natural events, such 
    as flooding. Annual crop production is apparently the primary mechanism 
    by which essential habitat is now maintained. Residential, business, or 
    industrial construction removes the species' preferred habitat directly 
    or creates an environment where succession is allowed to proceed or 
    more competitive plant species are intentionally established or are 
    allowed to invade the area. Conversion of sites to pasture or other 
    uses that maintain a perennial cover crop are a significant threat. In 
    order for this annual plant to complete its life cycle each year, it is 
    essential that the sites not be plowed or disked after the seeds have 
    germinated in the fall and that spring plowing and planting be delayed 
    until the plants have matured in the spring. This requirement is easily 
    met through the production of crops such as corn, provided that 
    traditional cultivation methods are used. Use of no-till cultivation 
    techniques does not appear to maintain the species' habitat. This is 
    probably because of the lack of physical disturbance of the soil and 
    the dependence upon herbicides that characterize the technique (Somers 
    et al. 1993).
        B. Overutilization for commercial, recreational, scientific, or 
    educational purposes. There is little or no commercial trade in 
    Lesquerella perforata at this time. Many of the populations are very 
    small and cannot support the collection of plants for scientific or 
    other purposes. Inappropriate collecting for scientific purposes or as 
    a novelty is a threat to the species.
        C. Disease or predation. Disease and predation are not known to be 
    factors affecting the continued existence of this species at this time.
        D. The inadequacy of existing regulatory mechanisms. Lesquerella 
    perforata is listed as an endangered plant in Tennessee under that 
    State's Rare Plant Protection and Conservation Act. This law regulates 
    the sale of endangered plants and prohibits anyone from knowingly 
    taking an endangered plant without the permission of the landowner or 
    land manager.
        Federal listing will provide additional protection from taking when 
    the taking is in violation of any State law, including State trespass 
    laws. Protection from inappropriate commercial trade would also be 
    provided.
        E. Other natural or manmade factors affecting its continued 
    existence. None are known at this time.
        The Service has carefully assessed the best scientific and 
    commercial information available regarding the past, present, and 
    future threats faced by this species in determining to make this rule 
    final. Based on this evaluation, the preferred action is to list 
    Lesquerella perforata as an endangered species. This species is faced 
    with imminent threats from loss of habitat to development and other 
    uses incompatible with the species' survival, and by competing 
    vegetation that is no longer controlled by natural flood regimes. These 
    threats are compounded due to the species' restricted range and limited 
    number of populations. In accordance with the definitions for 
    endangered and threatened species found in section 3(6) and (19) of the 
    Act, endangered is the most appropriate classification for L. 
    perforata.
    
    Critical Habitat
    
        Section 4(a)(3) of the Act, as amended, requires that, to the 
    maximum extent prudent and determinable, the Secretary designate any 
    habitat of a species, which is considered to be
    
    [[Page 67496]]
    
    critical habitat, at the time the species is determined to be 
    endangered or threatened. Title 50, Part 424 of the Code of Federal 
    Regulations, Section 424.12(1) states that designation of critical 
    habitat is not prudent when one or both of the following situations 
    exist: (i) The species is threatened by taking or other human activity, 
    and identification of critical habitat can be expected to increase the 
    degree of such threat to the species, or (ii) Such designation of 
    critical habitat would not be beneficial to the species. Both 
    situations apply to L. perforata.
        Publication of critical habitat maps would increase public interest 
    and possibly lead to additional threats for the species from collecting 
    and vandalism. This species occurs at a limited number of sites, and 
    most are fairly accessible. Publication of critical habitat 
    descriptions and maps would make Lesquerella perforata more vulnerable 
    and would increase enforcement problems.
        Critical habitat also would not be beneficial in terms of adding 
    additional protection for this species under section 7 of the Act. 
    Regulations promulgated for the implementation of section 7 provide for 
    both a ``jeopardy'' standard and a ``destruction or adverse 
    modification'' of critical habitat standard. Because of the highly 
    limited distribution of this species, any Federal action that would 
    destroy or have any significant adverse affect on its habitat would 
    likely result in a jeopardy biological opinion under section 7. Under 
    these conditions, no additional benefits would accrue from designation 
    of critical habitat that would not be available through listing alone.
        The owners and managers of all the known populations of this 
    species will be made aware of the plants' locations and of the 
    importance of protecting the species and its habitat. Should Federal 
    involvement occur, habitat protection will be addressed through the 
    section 7 consultation process, utilizing the jeopardy standard. 
    Protection of the species' habitat will also be addressed through the 
    recovery process. No additional benefits would result from a 
    determination of critical habitat. Therefore, the Service concludes 
    that it is not prudent to designate critical habitat for Lesquerella 
    perforata.
    
    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 encourages and results in 
    conservation actions by Federal, State, and private agencies, groups, 
    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. Such actions are initiated by the 
    Service following listing. The protection required of Federal agencies 
    and the prohibitions against certain activities involving listed plants 
    are discussed, in part, below.
        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 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) requires Federal agencies to confer 
    informally with the Service on any action that is likely to jeopardize 
    the continued existence of a proposed species or result in the 
    destruction or adverse modification of proposed critical habitat. If a 
    species is subsequently listed, 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 such a species 
    or to destroy or adversely modify its critical habitat. If a Federal 
    action may adversely affect a listed species or its critical habitat, 
    the responsible Federal agency must enter into formal consultation with 
    the Service. All of the known Lesquerella perforata populations are on 
    privately owned land where there is no known or anticipated Federal 
    involvement at the present time.
        The Act and its implementing regulations found at 50 CFR 17.61, 
    17.62, and 17.63 set forth a series of general trade 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 this species in interstate or foreign commerce, 
    or to remove and reduce to possession the species from areas under 
    Federal jurisdiction. In addition, for endangered plants, the Act 
    prohibits the malicious damage or destruction on Federal lands and the 
    removal, cutting, digging up, or damaging or destroying of endangered 
    plants in knowing violation of any State law or regulation, including 
    State criminal trespass law. Certain exceptions apply to agents of the 
    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 
    threatened species under certain circumstances. It is anticipated that 
    few trade permits would ever be sought or issued because the species is 
    not common in cultivation or in the wild.
        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 of listing those activities that would 
    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 whithin a species' range. Prohibitions 
    relating to Federal lands and to trade are not of concern at present, 
    as none of the Lesquerella perforata populations are known to occur on 
    Federal lands, and there is no known current trade in this species. 
    Collection, damage or destruction on non-Federal lands is prohibited if 
    in knowing violation of State law, or in violation of State criminal 
    trespass law. In Tennessee, L. perforata is protected under the Rare 
    Plant Protection and Conservation Act of 1985, which controls the 
    removal of plants from State properties for scientific, educational, or 
    propagative purposes, and the disturbance of the species on private 
    lands without the landowner's consent. The Service is not aware of any 
    otherwise lawful activities being conducted or proposed by the public 
    that will be affected by this listing and result in a violation of 
    section 9.
        Questions regarding whether specific activities will constitute a 
    violation of section 9 should be directed to the Field Supervisor of 
    the Service's Asheville Field Office (see ADDRESSES section). Requests 
    for copies of the regulations on listed plants and inquiries regarding 
    prohibitions and permits should be addressed to the Regional Director, 
    Southeast Regional Office, U.S. Fish and Wildlife Service, 1875 Century 
    Boulevard, Atlanta, Georgia 30345 (404/679-7313).
    
    National Environmental Policy Act
    
        The Service has determined that an Environmental Assessment, 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 Act. A notice outlining the Service's 
    reasons for this determination was published in the Federal Register on 
    October 25, 1983 (48 FR 49244).
    
    [[Page 67497]]
    
    Required Determinations
    
        The Service has examined this regulation under the Paperwork 
    Reduction Act of 1995 and found it to contain no information collection 
    requirements. This rulemaking was not subject to review by the Office 
    of Management and Budget under Executive Order 12866.
    
    References Cited
    
    Baskin, J.M., and C.C. Baskin. 1990. Seed Germination Biology of the 
    Narrowly Endemic Species Lesquerella stonensis (Brassicaceae). Plant 
    Species Biol. 5:205-213.
    Kral, R. 1983. A Report on Some Rare, Threatened, or Endangered 
    Forest-related Vascular Plants of the South. USDA, Forest Service 
    Tech. Pub. R8-TP2, Vol. 1. 718 pp.
    Rollins, R. C. 1952. Some Crucifers of the Nashville Basin, 
    Tennessee. Rhodora 54:182-192.
    Rollins, R.C. 1955. The Auriculate-leaved Species of Lesquerella 
    (Cruciferae). Rhodora 57:241-264.
    Somers, P., A. Shea, and A. McKerrow. 1993. Status Survey Report on 
    Lesquerella perforata Rollins (Spring Creek Bladderpod). Unpublished 
    report to the Asheville Field Office, U.S. Fish and Wildlife 
    Service, Asheville, NC. 81 pp.
    
    Author
    
        The primary author of this document is Mr. Robert R. Currie, 
    Asheville Field Office, U.S. Fish and Wildlife Service, 160 Zillicoa 
    Street, Asheville, North Carolina 28801 (704/258-3939, Ext. 224).
    
    List of Subjects in 50 CFR Part 17
    
        Endangered and threatened species, Exports, Imports, Reporting and 
    recordkeeping requirements, and Transportation.
    
    Regulation Promulgation
    
        Accordingly, part 17, subchapter B of chapter I, title 50 of the 
    Code of Federal Regulations, is amended 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. Section 17.12(h) is amended 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       Critical     Special  
             Scientific name              Common name                                                                     listed      habitat       rules   
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                            
            Flowering Plants                                                                                                                                
                                                                                                                                                            
                       *                  *                  *                  *                  *                  *                  *                  
    Lesquerella perforata...........  Spring Creek         U.S.A. (TN)........  Brassicaceae.......  E                         599           NA           NA
                                       bladderpod.                                                                                                          
                                                                                                                                                            
                       *                  *                  *                  *                  *                  *                  *                  
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    
        Dated: November 12, 1996.
    John G. Rogers,
    Acting Director, Fish and Wildlife Service.
    [FR Doc. 96-32541 Filed 12-20-96; 8:45 am]
    BILLING CODE 4310-55-P
    
    
    

Document Information

Effective Date:
1/22/1997
Published:
12/23/1996
Department:
Fish and Wildlife Service
Entry Type:
Rule
Action:
Final rule.
Document Number:
96-32541
Dates:
This rule is effective January 22, 1997.
Pages:
67493-67497 (5 pages)
RINs:
1018-AC42
PDF File:
96-32541.pdf
CFR: (1)
50 CFR 17.12