97-7619. Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for Three Plants and Threatened Status for Five Plants From Vernal Pools in the Central Valley of California

[Federal Register Volume 62, Number 58 (Wednesday, March 26, 1997)]
[Rules and Regulations]
[Pages 14338-14352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7619]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC00


Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Status for Three Plants and Threatened Status for Five 
Plants From Vernal Pools in the Central Valley of California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) determines endangered 
status pursuant to the Endangered Species Act of 1973, as amended (Act) 
for three plants, Orcuttia pilosa (hairy Orcutt grass), Orcuttia 
viscida (Sacramento Orcutt grass), and Tuctoria greenei (Greene's 
tuctoria); and threatened status for five plants, Castilleja campestris 
ssp. succulenta (fleshy owl's-clover), Chamaesyce hooveri (Hoover's 
spurge), Neostapfia colusana (Colusa grass), Orcuttia inaequalis (San 
Joaquin Valley Orcutt grass), and Orcuttia tenuis (slender Orcutt 
grass). Between publication of the proposed and final rules for these 
species, the Service determined that Orcuttia inaequalis, which was 
originally proposed as endangered, should be listed as threatened due 
to lesser immediacy and magnitude of threats to its existence. These 
species grow in the basins and margins of vernal pools of the Central 
Valley of California. Habitat loss and degradation due to urbanization, 
agricultural land conversion, livestock grazing, off-highway vehicle 
use, a flood control project, a highway project, altered hydrology, 
landfill projects, and competition from weedy nonnative plants imperil 
the continued existence of these species. This rule implements Federal 
protection and recovery provisions afforded by the Act for these eight 
plants.

EFFECTIVE DATE: April 25, 1997.

ADDRESSES: The complete file for this rule is available for public 
inspection, by appointment, during normal business hours at the 
Sacramento Field Office, U.S. Fish and Wildlife Service, 3310 El Camino 
Avenue, Suite #130, Sacramento, California 95821-6340.

FOR FURTHER INFORMATION CONTACT: Ken Fuller at the above address or by 
telephone at 916/979-2120 or facsimile at 916/979-2128.

SUPPLEMENTARY INFORMATION:

Background

    Vernal pools in the Central Valley of California were a common and 
widespread feature in pre-European times (Holland and Jain 1977). 
Although historic amounts of vernal pool habitat losses and annual loss 
rates have been disputed, Holland estimated that urbanization and other 
factors had eliminated 67 to 88 percent of the vernal pools in the 
Central Valley by 1973 (Holland 1978, and Robert Holland, consultant, 
in litt. 1992). Public comments and additional work regarding the 
number of remaining acres of vernal pool habitat in the Central Valley 
indicate the loss of vernal pool habitat is closer to 50 percent than 
67 to 88 percent (59 FR 48139; R. Holland, pers. comm. 1996). The 
plants discussed herein grow only in vernal pools in California and 
have experienced minor to major population and habitat reductions 
throughout their respective ranges. California vernal pools are 
generally small, seasonally aquatic ecosystems that are inundated in 
the winter and dry slowly in the spring and summer, making a harsh, 
unique environment. Cyclical wetting and drying create an unusual 
ecological situation supporting a unique biota. Many plants and animals 
have evolved to possess such specific characteristics that these 
organisms cannot live outside these temporary pools. Four other listed 
species may occur with these plants: The vernal pool tadpole shrimp 
(Lepidurus packardi); conservancy fairy shrimp (Branchinecta 
conservatio); longhorn fairy shrimp (B. longiantenna); and vernal pool 
fairy shrimp (B. lynchi). However, no close associations are known 
between any of the listed shrimp species and the eight plants affected 
by this rule.
    The Central Valley of California consists of the Sacramento Valley 
in the north half of the State and the San Joaquin Valley in the south 
half. Within the Central Valley, vernal pools are found in four 
physiographic settings, each possessing an impervious soil layer 
relatively close to the surface. These four settings include high 
terraces with iron-silicate or volcanic substrates, old alluvial 
terraces, basin rims with claypan soils, and low valley terraces with 
silica-carbonate claypans. Due to local topography and various 
geological populations, vernal pools are usually clustered into pool 
complexes. Pools within a complex typically are separated by a distance 
of a few to several meters and may form dense, interconnected mosaics 
of small pools or a more sparse scattering of large

[[Page 14339]]

pools. Vernal pool habitats and the eight plants discussed herein are 
found over a very limited, discontinuous, fragmented area within the 
Central Valley.

Discussion of the Eight Species

    Neostapfia colusana (Colusa grass) is a robust, tufted annual that 
grows 7 to 30 centimeters (cm) (3 to 12 inches (in)) in height. The 
stems are decumbent toward the base with the upper portion erect and 
terminating in spike-like inflorescences that are cylindrical, dense, 
and resemble small ears of corn. Because of this unique inflorescence, 
this distinctive plant is not easily confused with any others. Joseph 
Burtt-Davy (1898) collected and first described N. colusana as a member 
of the genus Stapfia. Burtt-Davy (1899) renamed this genus Neostapfia 
and shortly thereafter, Frank Scribner (1899) submerged Neostapfia 
within the genus Anthochloa. Robert Hoover (1940) placed this species 
in the resurrected monotypic genus Neostapfia.
    Neostapfia colusana has been extirpated from its type locality in 
Colusa County. Seven populations of N. colusana in Colusa, Merced, and 
Stanislaus counties have been lost. Three populations in Merced County 
and one occurrence in Stanislaus County have not been seen in many 
years and are considered to possibly be extirpated. The remaining 40 
populations in the San Joaquin Valley are concentrated along a 200 
kilometer (km) (98 mile (mi)) stretch of the eastern edge of the San 
Joaquin Valley in Stanislaus and Merced counties. Additionally, two 
separate populations occur in Solano County in the Sacramento Valley 
and another two populations are found in Yolo County. All populations 
exist on private lands, with the exception of one population found on 
Castle Air Force Base (Merced County) in 1993 and one population found 
on McClellan Air Force Base (Yolo County) in 1993. In addition to the 
population on The Nature Conservancy's (TNC) Jepson Prairie Preserve in 
Solano County, this plant is afforded some protection via a 970 hectare 
(ha) (2,400 acre (ac)) conservation easement purchased by TNC at the 
Flying M Ranch in Merced County (R. Alfandre, TNC, pers. comm. 1994). 
``The overall trend for Colusa grass is one of decline'' (California 
Department Fish and Game (CDFG) 1992a).
    Orcuttia inaequalis (San Joaquin Valley Orcutt grass) is a tufted 
annual that reaches 5 to 15 cm (2 to 6 in) in height. The grayish, 
pilose (bearing soft, straight hairs) plants have several spreading to 
erect stems, each terminating in a spike-like inflorescence. At 
maturity, the spikelets of the plant are aggregated into a dense, hat-
shaped cluster, which separates them from other members of the genus 
Orcuttia. Additionally, the lemmas (lower bracts enclosing the grass 
floret) are deeply cleft into five prominent teeth which may be sharp-
pointed or have awns that are 0.5 millimeters (mm) (0.2 in) long. The 
middle tooth is conspicuously longer than the four laterals. Orcuttia 
inaequalis does not occur with any other species of Orcuttia. The 
species most closely resembles O. californica and O. viscida. The 
former does not have the long central lemma tooth and lacks the grayish 
appearance, whereas, the spikelets of the latter are more congested 
toward the apex of the inflorescence, but not as much as in O. 
inaequalis. Orcuttia inaequalis has also smaller lemmas, noncurving 
lemma teeth, and smaller seeds. Orcuttia inaequalis grows with 
Neostapfia colusana at five sites in the San Joaquin Valley.
    Klyver first collected and identified Orcuttia inaequalis as O. 
californica near Lane's Bridge in Fresno County in 1927 (Klyver 1931). 
Hoover (1936a) described O. inaequalis as a distinct species, but 
reduced the species to a variety of O. californica in 1941 (Hoover 
1941). Reeder (1982) determined O. inaequalis to be a distinct species 
based on seed proteins, chromosome numbers, and morphological 
characteristics. Sixteen populations of O. inaequalis have been lost in 
Fresno, Madera, Merced, and Stanislaus counties. Additionally, three 
populations of O. inaequalis have not been seen in some years of 
surveying and are considered possibly extirpated. The remaining 23 
populations, mostly in southeastern San Joaquin Valley in Fresno, 
Merced, and Madera counties, are discontinuously scattered over a 79 km 
(36 mi) range. Two populations are on Federal land, one managed by the 
Bureau of Land Management (BLM) and one transplanted population by the 
Bureau of Reclamation (BOR), while the remaining 21 populations are 
found on private lands. Three populations of O. inaequalis are 
protected by a conservation easement with TNC at the Flying M Ranch in 
Merced County. ``The general trend for San Joaquin Valley Orcutt grass 
is one of decline'' (CDFG 1991b).
    Orcuttia pilosa (hairy Orcutt grass) is a densely tufted, usually 
densely pilose annual reaching about 5 to 20 cm (2 to 8 in) in height. 
The stems are erect or decumbent at the base. The inflorescence is 
spike-like and rather elongate, with the spikelets remote on the axis 
below and usually strongly congested above. The equal-length lemmas are 
deeply cleft into fine teeth that are sharp-pointed or short-awned. 
Orcuttia pilosa and O. tenuis grow together over a portion of their 
respective ranges but are readily distinguished, as the stems of O. 
pilosa are simple, tiller freely from the base and never branch from 
the upper nodes. Additionally, the spikelets of O. pilosa are strongly 
congested at the apex of the inflorescence and the stems and leaves are 
larger. Orcuttia pilosa occurs infrequently with Tuctoria greenei, but 
these two grasses can be readily distinguished.
    Hoover collected Orcuttia pilosa in 1938 from a single locality in 
eastern Stanislaus County, at the time considering these specimens to 
be a more robust form of O. tenuis. He used one of these specimens as 
the type for a new species, O. pilosa, which he described after 
examining additional collections from Merced and Madera counties in San 
Joaquin Valley (Hoover 1941). Orcuttia pilosa occurs along a 490 km 
(223 mi) stretch on the eastern margin of the San Joaquin and 
Sacramento valleys from Tehama County south to Stanislaus County and 
through Merced and Madera counties. Previously, 34 populations of O. 
pilosa were known. Eleven populations variously have been extirpated or 
are presumed extirpated due to agricultural land conversion, 
urbanization, and intensive cattle grazing in Madera, Merced, 
Stanislaus, and Tehama counties. Of the 24 native, extant populations 
and 1 introduced population, only 12 populations are considered to be 
stable (Stone et al. 1988; J. Silveira, U.S. Fish and Wildlife Service 
(Service), pers. comm. 1994). Of the 25 populations, 3 ungrazed 
populations of O. pilosa occur on the Sacramento National Wildlife 
Refuge. One population of O. pilosa occurs on BOR lands, and a 
translocated one occurs on land owned by California State Department of 
Transportation. The remaining 20 populations occur on private lands 
with 1 population of O. pilosa in Butte County, 4 in Stanislaus County, 
6 in Madera County, and 9 in Tehama County. Four of the nine 
populations of O. pilosa in Tehama County are located on the TNC's Vina 
Plains Preserve. However, only one of these sites at the preserve is 
excluded from an agreement allowing cattle grazing by the previous 
landowner (Stone et al. 1988). ``The overall trend for hairy Orcutt 
grass is one of decline

[[Page 14340]]

due to loss of vernal pool habitat'' (CDFG 1991c).
    Orcuttia viscida (Sacramento Orcutt grass) is a densely tufted, 
pilose annual that reaches 2 to 10 cm (1 to 4 in) in height. The erect 
stems terminate in spike-like inflorescences that are congested at the 
apex. The plants are viscid (sticky) even when young and more so at 
maturity. Orcuttia viscida develops five-toothed lemmas 6 to 7 mm (0.2 
to 0.3 in) long with the middle tooth conspicuously longer than the 
four laterals. The lemma teeth curve outward at maturity, giving the 
inflorescence a distinct bristly appearance. Although O. viscida is 
geographically isolated from all other members of the genus, it most 
closely resembles O. inaequalis, but can be separated as described 
above under the discussion of O. inaequalis.
    Hoover collected Orcuttia viscida in 1941 from a vernal pool near 
Folsom in Sacramento County and described it as a variety of O. 
californica (Hoover 1941). Reeder elevated O. viscida to specific rank 
based on differences in chromosome number, seed size, and other 
morphological characteristics (Reeder 1980, 1982). Orcuttia viscida 
possesses the narrowest range of the eight species proposed for listing 
herein. Orcuttia viscida occurs within a 350 square km (135 square mi) 
area in eastern Sacramento County. Only 40 km (18 mi) separates the 
northernmost from the southernmost population. Two of the nine known 
populations have been extirpated. Presently, three populations are 
found on private lands and four populations are located on non-Federal 
public lands (one area owned by a public municipality, one owned by the 
County of Sacramento, one by the City of Fair Oaks, and one by the 
CDFG). ``The trend for Sacramento Orcutt grass is one of rapid 
decline'' (CDFG 1991d).
    Tuctoria greenei (Greene's tuctoria) is a tufted, more or less 
pilose, annual grass that grows 5 to 15 cm (2 to 6 in) tall. The plant 
develops several to many erect stems, the outermost decumbent to 
spreading at the base, with each terminating in a spike-like 
inflorescence that may be partially enveloped by the uppermost leaf. 
The lemmas are strongly curved and more or less truncate at the apex.
    Vasey (1891) described Tuctoria greenei as Orcuttia greenei from 
specimens collected by Edward Greene near Chico in Butte County in 
1890. It remained in the genus Orcuttia until Reeder (1982) described 
the genus Tuctoria and placed the former O. greenei into the new genus 
Tuctoria. Nineteen populations of T. greenei have been extirpated or 
are possibly extirpated in Fresno, Madera, Merced, San Joaquin, 
Stanislaus, Tehama, and Tulare counties. The 20 remaining populations 
of T. greenei occur in Butte, Glenn, Merced, Shasta, and Tehama 
counties. The present range of this species extends 567 km (258 miles). 
With the exception of one small population of 50 plants on the 
Sacramento National Wildlife Refuge, all populations are on private 
lands, including four on the TNC's Vina Plains Preserve. ``The general 
trend for Greene's Orcutt grass is one of decline as a result of 
habitat alteration and destruction'' (CDFG 1991e).
    Orcuttia tenuis (slender Orcutt grass) is a weakly-tufted and 
sparsely-pilose annual grass. It grows about 5 to 15 cm (2 to 6 in) in 
height, producing one to several erect stems that often branch from the 
upper nodes. The inflorescence of this plant is elongate, with the 
spikelets usually remote along the axis and slightly, if at all, 
congested toward the apex. The lemmas are deeply cleft into fine, 
equal-length, prominent teeth that are sharp-pointed or short-awned. 
Orcuttia tenuis and O. pilosa are found growing together over a portion 
of their respective ranges but are readily distinguished as described 
in the discussion of O. pilosa.
    Alice Eastwood first collected Orcuttia tenuis in 1912 in Shasta 
County. These specimens were considered to be O. californica prior to 
the description of O. tenuis by Hitchcock as a new species in 1934, 
based upon spikelet arrangement as well as lemma tooth morphology 
(Hitchcock 1934). Orcuttia tenuis has been extirpated from its type 
locality in Shasta County and four other sites in the vicinity of the 
Redding Municipal Airport. Disjunct populations occur in vernal pools 
on remnant alluvial fans and high stream terraces and recent basalt 
flows across 440 km (220 mi) (Stone et al. 1988). Orcuttia tenuis is 
restricted to northern California, with 2 populations occurring in Lake 
County, 1 in Lassen County, 2 in Plumas County, 2 in Sacramento County, 
19 (including one translocated) in Shasta County, 2 in Siskiyou County, 
and 32 in Tehama County. Thirty-nine populations are on private lands. 
In addition to the populations on the TNC's Vina Plains Preserve in 
Tehama County, The Trust for Public Lands has obtained a conservation 
easement on the Inks Creek Ranch in Tehama County to protect one 
population of O. tenuis (M. Kelly, BLM, pers. comm. 1993). The City of 
Redding owns lands containing two populations. The United States Forest 
Service (USFS) and the BLM jointly have prepared a management guide for 
one of the ten populations on lands administered by the BLM and three 
of the nine populations on those lands administered by the Lassen 
National Forest (B. Corbin, Lassen National Forest, pers. comm. 1994; 
J. Molter, BLM, pers. comm. 1994; California Natural Diversity Database 
(CNDDB) 1996). ``Although discoveries of additional populations in 
recent years have extended the known range of this species, the overall 
trend for slender Orcutt grass is one of decline as a result of habitat 
alteration and loss'' (CDFG 1991f).
    Castilleja campestris ssp. succulenta (fleshy owl's-clover) is a 
glabrous, hemiparasitic (partly parasitic) annual herb belonging to the 
snapdragon family (Scrophulariaceae). The stems are simple or branched, 
generally 5 to 25 cm (2 to 10 in.) tall with brittle-succulent or 
brittle-fleshy, entire, alternate leaves. The branches end in a dense, 
short, green inflorescence with bracts equaling or exceeding the bright 
yellow to white flowers that appear in May. Castilleja campestris ssp. 
succulenta occurs with C. campestris ssp. campestris in Stanislaus 
County, but the latter can be distinguished by its usually more brittle 
leaves, shorter bracts, larger corollas, and longer stigmata.
    Hoover (1936b) originally described the plant as Orthocarpus 
campestris var. succulentus from specimens at its type locality in beds 
of vernal pools near Ryer, Merced County. He subsequently elevated it 
to a full species, O. succulentus, distinguishing it from O. campestris 
on the basis of leaf and bract shape and flexibility, corolla color, 
and anther cell length (Hoover 1968). Chuang and Heckard (1991) 
significantly revised Orthocarpus, subsuming most of what had been 
called Orthocarpus into the genus Castilleja. They also proposed the 
new combination C. campestris ssp. succulenta. This small annual plant 
was formerly more widespread in the Central Valley and is now 
extirpated from its type locality near Ryer in Merced County. 
Additionally, three populations in Fresno County have not been observed 
for some years and are possibly extirpated (CNDDB 1996). The plant 
discontinuously occurs in the San Joaquin Valley over a range of 145 km 
(66 mi) extending through northern Fresno, western Madera, eastern 
Merced, southeastern San Joaquin, and Stanislaus counties. One 
population occurs on lands managed by the BOR, one on lands owned by 
the California Department of Transportation, and two populations on 
land managed by the BLM. Thirty-two populations occur on

[[Page 14341]]

private lands. Of these populations, seven occur at the Flying M Ranch, 
where TNC has a conservation easement (CNDDB 1996). ``The overall trend 
for succulent owl's clover is one of decline'' (CDFG 1991g).
    Chamaesyce hooveri (Hoover's spurge), a member of the spurge family 
(Euphorbiaceae), is a prostrate, glabrous annual herb. The leaves are 
gray-green, asymmetric at the base, rounded to kidney-shaped and have 
small, narrow white teeth around the margins. The small flowers occur 
singly in the leaf axils. Chamaesyce ocellata can occur in the same 
range with C. hooveri but is readily distinguished by its spreading 
rather than prostrate habit, yellowish-green color, and entire leaf 
margins. Chamaesyce serpyllifolia is similar to C. hooveri. Both 
species have a gray-green color and may be prostrate, but C. 
serpyllifolia has less rounded leaves, and the marginal teeth are 
shorter and are usually limited to the leaf apex. Neither C. ocellata 
nor C. serpyllifolia have been documented growing together with C. 
hooveri in the same vernal pool.
    Hoover first collected this plant in Tulare County in 1937. Wheeler 
(1940) described it as Euphorbia hooveri. Koutnik (1985) placed this 
species in the genus Chamaesyce based on the presence of a sheath 
around the vascular bundle, its sympodial (lateral branching) growth 
habit, and its photosynthetic pathway. Chamaesyce hooveri is found in 
vernal pools on remnant alluvial fans and related depositional stream 
terraces along a stretch of 528 km (240 mi) on the eastern margin of 
the Central Valley. Four populations of C. hooveri are extirpated or 
are possibly extirpated in Butte, Tehama, and Tulare counties. Of the 
25 extant populations, 10 populations are known from Glenn, Merced, 
Stanislaus, and Tulare counties. Three populations occur at the 
northern end of Butte County and the remainder are located in Tehama 
County. Five of the 12 Tehama County populations occur on TNC's Vina 
Plains Preserve. All populations are on privately owned lands, except 
for the four populations in Glenn County found on the Sacramento 
National Wildlife Refuge (CNDDB 1996; J. Silveira, Sacramento National 
Wildlife Refuge, pers. comm. 1994).

Previous Federal Action

    Federal actions on these eight species began as a result of section 
12 of the Endangered Species Act of 1973, which directed the Secretary 
of the Smithsonian Institution to prepare a report on those species 
considered to be endangered, threatened, or extinct in the United 
States. This report, designated as House Document No. 94-51, was 
presented to Congress on January 9, 1975, and included Castilleja 
campestris ssp. succulenta (as Orthocarpus succulentis [sic]), 
Neostapfia colusana, Orcuttia inaequalis (as O. californica var. 
inaequalis), O. pilosa, O. tenuis, and O. viscida (as O. californica 
var. viscida) as endangered, and Chamaesyce hooveri (as Euphorbia 
hooveri) as threatened. The Service published a notice on July 1, 1975, 
(40 FR 27823) of its acceptance of the report of the Smithsonian 
Institution as a petition within the context of section 4(c)(2) 
(petition provisions are now found in section 4(b)(3) of the Act) and 
its intention to review the status of the species named therein. The 
seven plants above were included in the July 1, 1975, notice. On June 
16, 1976, the Service published a proposal (42 FR 24523) to determine 
approximately 1,700 vascular plant species to be endangered species 
pursuant to section 4 of the Act. This list of 1,700 plant taxa was 
assembled on the basis of comments and data received by the Smithsonian 
Institution and the Service in response to House Document No. 94-51 and 
the July 1, 1975, Federal Register publication. Castilleja campestris 
ssp. succulenta, Chamaesyce hooveri, Neostapfia colusana, O. 
inaequalis, O. pilosa, O. tenuis, and O. viscida were included in the 
June 16, 1976, Federal Register document.
    General comments received in relation to the 1976 proposal were 
summarized in an April 26, 1978, publication (43 FR 17909). The 
Endangered Species Act Amendments of 1978 required that all proposals 
over 2 years old be withdrawn. A 1-year grace period was given to those 
proposals already more than 2 years old. On December 10, 1979, the 
Service published a notice (44 FR 70796) of the withdrawal of the June 
16, 1976, proposal, along with four other proposals that had expired.
    The Service published an updated Notice of Review for plants on 
December 15, 1980 (45 FR 82480). This notice included Castilleja 
campestris ssp. succulentus, Chamaesyce hooveri, Neostapfia colusana, 
Orcuttia inaequalis, O. pilosa, O. tenuis, O. viscida, and Tuctoria 
greenei as category 1 candidates. Category 1 candidates were those 
species for which the Service had on file substantial information on 
biological vulnerability and threats to support a proposal to list. On 
November 28, 1983, the Service published a supplement to the notice of 
review (48 FR 53640), which changed Castilleja campestris ssp. 
succulentus and N. colusana to Category 2 candidates. Category 2 
candidates were those species for which data in the Service's 
possession indicated that listing was possibly appropriate, but for 
which substantial data on biological vulnerability and threats were not 
known or on file to support proposed rules. The plant notice was again 
revised on September 27, 1985 (50 FR 39526) and the status of the eight 
plants remained unchanged from the 1983 supplement. In the revision of 
the plant notice published on February 21, 1990 (55 FR 6184), N. 
colusana was returned to category 1 status. In 1991 and 1992, the 
Service received additional information regarding threats to Castilleja 
campestris ssp. succulenta, and returned this species to category 1 
status. As published in the Federal Register on February 28, 1996 (61 
FR 7596), candidate category 2 status was discontinued and only 
category 1 species are recognized as candidates for listing purposes.
    Section 4(b)(3)(B) of the Act requires the Secretary to make 
certain 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 Castilleja 
campestris ssp. succulenta, Chamaesyce hooveri, Neostapfia colusana, 
Orcuttia inaequalis, O. pilosa, O. tenuis, and O. viscida, because the 
1975 Smithsonian report had been accepted as a petition. In October of 
1983 through 1991, the Service found that the petitioned listing of the 
above seven plant species was warranted but precluded by other higher 
priority listing actions.
    A proposal to list Orcuttia inaequalis, O. tenuis, O. viscida, and 
Tuctoria greenei as endangered and Castilleja campestris ssp. 
succulenta, Chamaesyce hooveri, Neostapfia colusana, and O. pilosa as 
threatened was published on August 5, 1993 (58 FR 41700). This proposal 
primarily was based on information supplied by reports to the 
California Natural Diversity Data Base, the Status Survey of the Grass 
Tribe Orcuttieae and Chamaesyce hooveri (Euphorbiaceae) in the Central 
Valley of California (Stone et al. 1988), and observations by numerous 
botanists. Since publication of the proposed rule for these species, 
the Service has determined that Orcuttia inaequalis, which was proposed 
as endangered, should be listed as threatened due to a lesser immediacy 
and magnitude of threats to its existence.

[[Page 14342]]

    The processing of this final rule conforms with the Service's 
listing priority guidance published in the Federal Register on December 
5, 1996 (61 FR 64475). The guidance clarifies the order in which the 
Service will process rulemakings following two related events: (1) The 
lifting, on April 26, 1996, of the moratorium on final listings imposed 
on April 10, 1995 (Public Law 104-6), and (2) the restoration of 
funding for listing through 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. This rule has been updated to 
reflect any changes in distribution, status and threats since the 
effective date of the listing moratorium. This additional information 
was not of a nature to alter the Service's decision to list the 
species.

Summary of Comments and Recommendations

    Upon the publication of the August 5, 1993, proposed rule and 
associated notifications (58 FR 41700), all interested parties were 
requested to submit factual reports or information that might assist 
the Service in determining whether listing is warranted for these 
species. A 90-day comment period closed on November 18, 1993. 
Appropriate Federal and State agencies, county and city governments, 
scientists, and interested parties were contacted and requested to 
comment. Individual newspaper notices of the proposed rule were 
published in the Lake County Record-Bee, Modesto Bee, Record 
Searchlight, Visalia Times-Delta, Siskiyou Daily News, Madera Tribune, 
Chico-Enterprise Record, Daily Republic, Turlock Daily, Fresno Bee, and 
Sacramento Bee on a variety of dates from August 21 to August 26, 1993.
    In response to the publication of the proposed rule, William 
Hazeltine, Environmental Consultant, Oroville, California, requested a 
public hearing in a letter dated August 16, 1993. As a result, the 
public comment period was extended to November 18, 1993. Notice of the 
public hearing was published in the Federal Register (58 FR 52063) and 
in the Sacramento Bee, a newspaper with a large regional circulation. A 
public hearing was held at the Hyatt Regency Hotel in Sacramento on 
November 3, 1993, from 6 pm to 8 pm. Eleven people presented oral and 
written comments.
    During the comment period, the Service received comments (letters 
and oral testimony) from 27 people. Numerous people submitted more than 
one comment to the Service. Seven comments supported the listing, 12 
comments opposed the listing, and 8 comments are viewed as neutral. 
Several commenters provided clarification and additional detailed 
information that have been incorporated into this rule. Opposing 
comments and other comments questioning the proposed rule have been 
organized into specific issues. These issues and the Service's response 
to each are summarized as follows:
    Issue 1. One commenter stated that the population of Orcuttia 
viscida in a vernal pool complex within a preserve in the proposed 
Sunrise-Douglas subdivision is not threatened. Another commenter stated 
that this same population is threatened by human disturbance.
    Service Response: The Service reported in the proposed rule that 
one population of Orcuttia viscida was threatened by an industrial park 
development in eastern Sacramento County (CNDDB 1993). This industrial 
park development project was dropped from further consideration, and 
the Sunrise-Douglas subdivision has been proposed in the same area 
(George Clark, California Native Plant Society, in litt. 1993). The 
proposed subdivision includes a proposed preserve area, which includes 
the vernal pools containing O. viscida and O. tenuis. Because the 
preserve is only a proposal, it does not provide any protection to 
these plant populations. Detrimental effects from herbicide runoff, 
invasion of horticultural exotics, bicycle riding, and other human 
intrusions have been observed in other preserves adjacent to 
subdivisions, including one preserve for O. viscida in Sacramento 
County. The Service considers the populations at Sunrise-Douglas to be 
imperiled by similar threats as discussed in Factor E in the ``Summary 
of Factors Affecting the Species.''
    Issue 2. One commenter stated that one population of Orcuttia 
viscida is not threatened by the Sacramento County landfill. Another 
commenter stated that the Sacramento County landfill threatens this 
same population.
    Service Response: Recently, the Sacramento County landfill has been 
expanded because the current use area was nearly full to capacity. 
During the last landfill expansion project, the area containing the 
vernal pool complex, mostly centered on the county-owned land having 
one population of Orcuttia viscida, was avoided. Because the County 
currently does not own land elsewhere for future landfill expansion and 
has not announced plans to purchase additional land, it is reasonable 
to expect that any future expansion will threaten this population. 
Moreover, any expansion of the current landfill area will destroy 
potential habitat for O. viscida (Clark, in litt. 1993).
    Issue 3. One commenter stated that loss of vernal pool habitat from 
many of the planned housing projects and aggregate mines in the Central 
Valley will be mitigated by vernal pool creation. Because vernal pool 
creation has been successful and is not experimental, no habitat losses 
exist as claimed by the Service.
    Service Response: Ferren and Gervitz (1990) reviewed 21 vernal pool 
creation projects and stated that no conclusive data exist to 
substantiate the hypothesis ``that vernal pools can be restored or 
created to provide functional values within the range of variability of 
natural pools.'' In a review of 53 mitigation-related transplantation, 
relocation, and reintroduction attempts in California, Peggy Fiedler 
(1991) concluded that the success rate was 8 percent. In a study on the 
preservation and management of vernal pools, Jones and Stokes (1990) 
concluded that the science of vernal pool creation is still in its 
infancy and is primarily an experimental technique. Thus, the Service 
maintains that urbanization contributes to on-going losses of natural 
vernal pool habitat. The Service also maintains that vernal pool 
habitat creation efforts are experimental in nature at this time, and 
are generally not successful (59 FR 48136). Proposed subdivisions and 
aggregate mines continue to threaten suitable vernal pool habitat and, 
in some cases, populations of these eight vernal pool plants.
    Issue 4. One commenter stated that the Service erroneously 
calculated the loss of vernal pool acreage in California and suggested 
that the number of acres of vernal pools lost was far less than claimed 
by the Service.
    Service Response: The historical context of vernal pool losses in 
California in the proposed rule was not intended as a thorough, 
exhaustive investigation and analysis of vernal pool losses. 
Retrospective and contradictory information and opinions likely will 
continue to generate debate on this point. The relevant issue is that 
vernal pool habitat is depleted and fragmented to render these eight 
vernal pool plants

[[Page 14343]]

vulnerable to extinction by present and foreseeable threats across all 
or a significant portion of their respective ranges. The threats to 
vernal pool habitat and the eight vernal pool plants are discussed in 
the ``Summary of Factors Affecting the Species.''
    Issue 5. Several commenters questioned the data that were used in 
the proposed rule to determine that these eight vernal pool plants 
warrant listing. One commenter stated that the data in the proposed 
rule were in error, incomplete, and inconclusive. One commenter stated 
that the data were poor because the status survey was done in 2 drought 
years.
    Service Response: The Service has received reports from the CNDDB, 
knowledgeable botanists, and from a field status survey specifically 
directed at gathering the best available scientific and commercial 
information on the distribution and threats to these eight vernal pool 
plants. Information from botanical collections of these vernal pool 
plants that date from the 1890's was utilized in the preparation of the 
proposed rule. The Service received information from a request for 
information from Federal, State, and local agencies and consulted 
professional botanists during the preparation of the proposed rule. 
Destruction and loss of habitat and extirpation of populations of these 
eight vernal pool plants from a variety of causes have been documented. 
These species of plants have been surveyed in drought and non-drought 
years. Although these vernal pool plants have variable populations and 
new populations may be found in the future, the same threats are likely 
to apply to any newly discovered populations. No data were provided to 
substantiate comments that the findings of the proposed rule were based 
on erroneous or inconclusive data.
    Issue 6. Several commenters stated that livestock grazing had no or 
little adverse or possibly a beneficial effect or was necessary for the 
survival of these eight vernal pool plants or that these plants are 
stable and thriving as a result of moderate or heavy grazing. One 
commenter stated that drought, not livestock grazing, was responsible 
for the decline of Tuctoria greenei. Another commenter stated that 
urbanization and drought, not livestock grazing, was responsible for 
the decline of T. greenei.
    Service Response: Livestock grazing may have adverse, beneficial, 
or little effect on vernal pool plants depending upon a wide variety of 
circumstances. Grazing varies in frequency, intensity, timing, 
duration, and kind of animal, resulting in widely varying impacts to 
the plant communities involved. Temperature and effective spring 
rainfall moisture contribute to difficulties in predicting vernal pool 
plant growth and reproduction. These environmental factors influence 
the ability to determine vernal pool plant availability for livestock 
consumption and identify what levels of consumption are not likely to 
adversely affect long-term plant sustainability. Grazing on private 
lands occurs at many of the locations of these eight vernal pool 
plants. The Service is aware of some populations having no livestock 
grazing on them for over 40 years. Additionally, the Service is aware 
of numerous instances where, under a specific set of circumstances, 
livestock grazing has little to no adverse effect on some populations 
of these eight vernal pool plants. For instance, private livestock 
grazing in California commonly occurs in the winter and early spring. 
Direct impacts from grazing and trampling are avoided in many instances 
because the plants have yet to emerge from the vernal pools that are 
still filled with water in the winter and early spring. These 
populations have been characterized as stable and thriving and not 
threatened by grazing, given a specific set of management circumstances 
(Stone et al. 1988). However, it would be inaccurate to characterize 
these vernal pool plant populations as stable and thriving as a result 
of heavy or moderate grazing. Documented observations of positive, 
neutral, and detrimental effects of livestock grazing on some 
populations of these eight vernal pool plants exist (Stone et al. 
1988).
    One population of Tuctoria greenei may have been extirpated as a 
result of cattle grazing from a site on private land near Farmington, 
San Joaquin County. This population was last seen in 1936 (Stone et al. 
1988). Three populations of T. greenei in Merced County, two 
populations in Tehama County, and one population in Stanislaus County 
are presumed to be extirpated as a result of cattle grazing (Stone et 
al. 1988). The last time any of these populations was documented was in 
1981. The proposed rule stated that livestock grazing was responsible 
for the damaged and declining status of five populations of T. greenei. 
Alternatively, another five populations of T. greenei in Tehama County 
are not threatened by current livestock grazing practices and were not 
included in the discussion of grazing threats in the proposed rule. In 
these five specific cases in Tehama County, livestock grazing has 
little or no adverse effect and is compatible with the biological needs 
for the long-term persistence of these populations.
    No commenter submitted any data to substantiate their statements 
that drought and/or urbanization have caused of the decline of Tuctoria 
greenei. Populations of T. greenei and the other seven vernal pool 
plants have been surveyed in drought and non-drought years. In regard 
to the likelihood of extirpation due to drought, these eight vernal 
pool plants have adapted to survive extreme environmental variations 
like drought. Current information suggests extirpation from drought is 
unlikely, except for marginal populations. It is not readily apparent 
why populations may not appear consistently on a given site and the 
reasons may be attributed to drought or other unknown factors.
    The best scientific and commercial information indicates some 
populations of these eight vernal pool plants may have been extirpated 
as a result of livestock grazing and that other populations are 
adversely impacted by livestock grazing (Stone et al. 1988). The 
Service maintains that current information suggests that livestock 
grazing, under certain conditions, may be detrimental to some of these 
eight vernal pool species. The determination of whether impacts from 
livestock grazing are positive, neutral, or detrimental to these vernal 
pool plants is made on a site-by-site basis for specific populations 
and is based upon documented observations. Livestock grazing is only 
one of numerous activities adversely affecting these eight vernal pool 
plants. Additional information regarding livestock grazing may be found 
in ``Factor C'' in the ``Summary of Factors Affecting the Species.''
    Issue 7. Several commenters stated that the listing of these eight 
vernal pool plant species will have an adverse impact on cattle 
ranching and that the Service needs to consider the economic effects of 
listing.
    Service Response: Under section 4(b)(7)(A), a listing determination 
must be based solely on the best scientific and commercial data 
available. The legislative history of this provision clearly states the 
intent of Congress to ``ensure'' that listing decisions are ``based 
solely on biological criteria and to prevent non-biological 
considerations from affecting such decisions'', H. R. Rep. No. 97-835, 
97th Cong. 2d Sess. 19 (1982). As further stated in the legislative 
history, ``Applying economic criteria * * * to any phase of the species 
listing process is applying economics to the determinations made under 
section 4 of the Act and is

[[Page 14344]]

specifically rejected by the inclusion of the word ``solely'' in this 
legislation,'' H. R. Rep. No. 97-835, 97th Cong. 2d Sess. 19 (1982). 
Because the Service is precluded from considering economic impacts in a 
final decision on a proposed listing, the Service has not examined such 
impacts to the cattle industry or other business that may be caused by 
the listing of these eight vernal pool species.
    Issue 8. One commenter stated that livestock operators create 
vernal pool habitat by building stock ponds.
    Service Response: Although some populations of Orcuttia tenuis are 
found in livestock ponds, such habitat is artificial and does not 
support the biological functions and values of natural vernal pools. 
Additionally, artificial livestock stock ponds are only a temporary 
feature of surface hydrology. Lack of maintenance or changing land uses 
can cause such a livestock pond to disappear. The Service considers 
that livestock ponds represent temporary artificial refuge that is not 
ecologically viable for the eight vernal pool plants to sustain 
themselves.
    Issue 9. One commenter stated the Service should assess impacts 
from grasshopper predation on these eight vernal pool plants.
    Service Response: Grasshopper predation has been recorded only 
twice in the history of monitoring information on these eight vernal 
pool plants. The Service does not consider grasshopper predation a 
serious threat to these eight vernal pool plants.
    Issue 10. Several commenters stated that these vernal pool plant 
species are in preserves and do not require more protection. One 
commenter stated that piecemeal protection may not prevent extinction 
of these species. Another commenter stated that, in specific cases, 
some of the existing preserves do not protect these plants.
    Service Response: The likelihood of the long-term survival of any 
of the eight vernal pool plants is difficult to predict with the best 
scientific methods. Difficulties and uncertainties in predicting 
extinction of species involve knowledge of many interrelated factors 
including; the biological status of the species, the genetic structure 
within and among populations of a species, the significance of 
contributions of marginal populations to the genetics of the species, 
the rate and direction of gene flow, historic or current population 
bottlenecks, genetic drift, and inbreeding. Upon listing of the eight 
vernal pool plants, the Service will undertake preparation of a 
recovery plan for vernal pool ecosystems in California. The recovery 
plan will include all federally listed and candidate vernal pool 
species and have the goal to delist the species. Implementation of the 
recovery plan will help provide more than piecemeal protection.
    While a few populations of some of these vernal pool plants are 
found on preserves, most populations are located on private lands and 
are not secure. In the few cases where some of these species are in 
preserves on privately owned lands, the preserves are not managed 
specifically for these plants and threats arise from sources other than 
habitat destruction. For example, one commenter stated that one 
population of Neostapfia colusana located in a preserve, Jepson 
Prairie, owned by TNC, is threatened by competition from a nonnative, 
aggressive weed, common frog-fruit (Phyla nodiflora var. nodiflora). 
Furthermore, a population of Orcuttia viscida, located on a preserve 
owned by CDFG, is adversely affected by runoff from an adjacent housing 
development that has changed the hydrology of the vernal pool complex. 
For additional information regarding protection of individual 
populations, please refer to the ``Background'' and the ``Summary of 
Factors Affecting the Species.''
    Issue 11. Several commenters stated that the Service must complete 
a Takings Implication Assessment under Executive Order 12630.
    Service Response: The U.S. Attorney General has issued guidelines 
to the Department of the Interior (Department) on the implementation of 
Executive Order 12630, ``Governmental Actions and Interference with 
Constitutionally Protected Property Rights.'' Under these guidelines, a 
special rule applies when an agency within the Department is required 
by law to act without exercising its usual discretion. The provisions 
in the guidelines relating to non-discretionary actions clearly are 
applicable to the determination of endangered or threatened status for 
the vernal pool plants in this rule.
    In this context, an agency's action might be subject to legal 
challenge if it did not consider or act upon economic information. In 
these cases, the Attorney General's guidelines state that Takings 
Implication Assessments (TIAs) shall be prepared after, rather than 
before, the agency makes the decision upon which its discretion is 
restricted. The purpose of the TIAs in these special circumstances is 
to inform policymakers of areas where unavoidable taking exposures 
exist. Such TIAs shall not be considered in the making of 
administrative decisions that must, by law, be made without regard to 
their economic impact. In enacting the Endangered Species Act, Congress 
required that the Department list species based solely upon scientific 
and commercial data indicating whether or not they are in danger of 
extinction. Thus, by law and U.S. Attorney guidelines, the Service 
cannot conduct such TIAs prior to listing. However, the Service will be 
preparing a Takings Implication Assessment regarding this listing after 
the listing becomes final.
    Issue 12. Several commenters stated that the Service needs to 
complete a Regulatory Impact Analysis, as directed by Presidential 
Executive Order 12291, for the proposed rule for the eight vernal pool 
plants.
    Service Response: The Endangered Species Act requires that listing 
decisions be made solely on the basis of biological information. The 
legislative history of the 1982 amendments to the Act states:
    ``The Committee of Conference * * * adopted the House language 
which requires the Secretary to base determinations regarding the 
listing or delisting of species `solely' on the basis of the best 
scientific and commercial data available to him. As noted in the House 
Report, economic considerations have no relevance to determinations 
regarding the status of species and the economic analysis requirements 
of Executive Order 12291, and such statutes as the Regulatory 
Flexibility Act and the Paperwork Reduction Act, will not apply to any 
phase of the listing process.'' H.R. Conf. Rep. No. 835, 97th Cong., 2d 
Sess. 20 (1982); accord, H.R. Rep. No. 567, 97th Con., 2d Sess. 12, 19-
20 (1982); S. Rep. No. 418, 97th Cong., 2d Sess. 4 (1982).
    The Service has concluded that the analyses required by the 
Regulatory Flexibility Act and Executive Order 12291 are not applicable 
to listing determinations. Additionally, Executive Order 12291 was 
revoked by issuance of Executive Order 12866 on September 30, 1993.
    Issue 13. Several commenters stated that the Service must prepare 
an Environmental Impact Statement (EIS), pursuant to the National 
Environmental Policy Act (NEPA), on this rule.
    Service Response: For the reasons set out in the NEPA section of 
this document, the Service has determined that the rules issued 
pursuant to section 4(a) of the Act do not require the preparation of 
an EIS. The Federal courts have held in Pacific Legal Foundation v. 
Andrus, 657 F2d. 829 (6th Circuit 1981) that an EIS is not required for 
listing under the Act. The court decision noted that preparing an

[[Page 14345]]

EIS on listing actions does not further the goals of NEPA or the Act.
    Issue 14. One commenter stated that the Service was uncooperative 
and inaccessible regarding the notification of the proposed rule. 
Another commenter stated that the Service needs to conduct a hearing 
for the proposed rule to list these eight vernal pool plants in Butte 
County because the Butte County Board of Supervisors passed a 
resolution that directs all government agencies to inform them of any 
action that may affect their economics, customs, or culture.
    Service Response: The Service published a notice of the proposed 
rule regarding these eight vernal pool plants in the Federal Register 
on August 5, 1993. On August 16, 1993, the Service mailed out over 125 
notifications of the proposed rule to Federal, State, and county 
entities, and individuals. Additionally, the Service published public 
notices regarding the proposed rule in the following newspapers--Chico-
Enterprise Record, Fresno Bee, Fairfield Daily Republic, Lake County 
Record-Bee, Madera Tribune, Modesto Bee, Redding Record Searchlight, 
Siskiyou Daily News, Sacramento Bee, Turlock Daily, and Visalia Times-
Delta.
    In regard to notification of the public hearing, one request for a 
public hearing was received. In accordance with the Endangered Species 
Act, the Service determined that the request for a public hearing was 
received during the comment period and scheduled a public hearing in a 
large city, Sacramento, that is located in the center of the range of 
the eight species proposed for listing. The notification of the public 
hearing and extension of the comment period was published in the 
Federal Register on October 6, 1993 (58 FR 52063) and shortly 
thereafter published in the Sacramento Bee, a local newspaper with a 
large circulation. The Service also mailed the notification of public 
hearing and extension of comment period to interested parties. The 
Service maintains that adequate public notification was given in regard 
to the notification of the proposed rule, the public hearing, and 
extension of comment period for the eight vernal pool plants proposed 
for listing. The perception of the Service as uncooperative and 
inaccessible is regrettable. We will continue to strive for complete 
satisfaction in our communication with the public.
    Issue 15. One commenter stated that the Service needs to designate 
critical habitat. Another commenter stated that critical habitat should 
not be designated. Another commenter stated that the Service needs to 
designate critical habitat for people to find more populations of these 
eight vernal pool plants.
    Service Response: The Service believes that, at this time, the 
threat posed by designating critical habitat outweighs any potential 
benefit. As discussed in the ``Summary of Factors Affecting the 
Species'' and ``Critical Habitat'' sections of this rule, all eight 
vernal pool plants could be adversely affected by acts of vandalism. 
The Service is aware of vernal pools that contained suitable habitat 
for other federally proposed species that apparently were destroyed to 
escape regulatory requirements. Designation of critical habitat at this 
time would increase the threats to these eight vernal pool plants from 
similar acts of vandalism. Within the constraints of agency budget and 
priority workload, the Service is willing to work with anyone 
interested in inventorying vernal pools for undiscovered populations of 
these eight vernal pool plants. Critical habitat is typically 
designated for known populations throughout the range of these species. 
Therefore, such a designation would not aid in the discovery of new 
populations.
    Issue 16. A commenter from a mosquito abatement district was 
concerned about restrictions of mosquito control activities in vernal 
pools. Another commenter stated that listing would prevent landowners 
from abating mosquitos on private lands and, thereby, could create a 
public nuisance that could cause a liability.
    Service Response: After the Service proposed three species of fairy 
shrimp and one species of tadpole shrimp for listing in 1992 (57 FR 
19856), commenters expressed similar concerns. Although degraded or 
disturbed vernal pools may contain abundant mosquito populations, most 
natural, non-degraded vernal pools do not provide a significant 
breeding source for mosquitos. Since the Federal listing the three 
species of fairy shrimp and one tadpole shrimp in vernal pools of 
California in 1994 (59 FR 48136), the Service is not aware of any 
problems or conflicts that have arisen regarding treatment of vernal 
pools for mosquitos and the need to protect federally listed fairy 
shrimp or tadpole shrimp. If the need for treatment of some vernal 
pools occurs, least toxic, benign chemical alternatives and biological 
or cultural controls exist for mosquito control. The Service recognizes 
that potential conflicts may exist with the use of some of the many 
chemicals used for mosquito control that may potentially be detrimental 
to vernal pool plants and biota. The Service does and will continue to 
work with recognized experts, and Federal, State, and local entities in 
examining the use of additional alternatives, such as including 
methoprene and the use of Bacillus thuringiensis var. israelensis (Bti) 
and Lagenidium giganteum to achieve mosquito control. The Service is 
confident that Federal listing will contribute to the survival of the 
eight species of vernal pool plants without threatening public health 
and safety.
    Issue 17. One commenter recommended that the eight vernal pool 
species be listed as threatened because it would allow for incidental 
take in conservation plans.
    Service Response: Section 9, ``Prohibited Acts'', of the Act and 
the Code of Federal Regulations (50 CFR parts 10, 17) address 
protection of federally listed endangered and threatened plants. 
Incidental take does not apply to federally listed plants. However, it 
is unlawful to remove, damage or destroy any such species from areas 
under Federal jurisdiction, or to remove, damage or destroy any such 
species in knowing violation of any State law or regulation on other 
lands. For further information, please see the protection section in 
``Factor E'' in the ``Summary of Factors Affecting the Species.''

Peer Review

    The Service solicited the expert opinions of more than a dozen 
appropriate and independent specialists regarding pertinent scientific 
or commercial data and assumptions relating to the taxonomy and 
biological and ecological information for these eight species. Two 
responses from specialists were received. One specialist provided 
information supporting the position of the Service that Orcuttia tenuis 
and O. viscida were facing a number of threats in Sacramento County. 
The other specialist provided information that clarified overlap in the 
distribution of Chamaesyce hooveri, C. ocellata, and C. serpyllifolia, 
and provided additional range, distribution or threat information for 
Orcuttia inaequalis, O. pilosa and Tuctoria greenei. These comments 
were incorporated into the final rule.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, the Service has determined that Orcuttia pilosa Hoover 
(hairy Orcutt grass), Orcuttia viscida (Hoover) J. Reeder (Sacramento 
Orcutt grass), and Tuctoria greenei (Vasey) J. Reeder (Greene's 
tuctoria) should be classified

[[Page 14346]]

as endangered; and Castilleja campestris (Benth.) Chuang and Heckard 
ssp. succulenta (Hoover) Chuang and Heckard (fleshy owl's-clover), 
Chamaesyce hooveri (Wheeler) Koutnik (Hoover's spurge), Neostapfia 
colusana (Davy) Davy (Colusa grass), Orcuttia inaequalis Hoover (San 
Joaquin Valley Orcutt grass), and Orcuttia tenuis Hitchcock (slender 
Orcutt grass) should be classified as threatened. Procedures found at 
section 4 of the Act and regulations (50 CFR part 424) promulgated to 
implement the listing provisions of the Act were followed. A species 
may be determined 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 Orcuttia pilosa, Orcuttia viscida, Tuctoria greenei, 
Castilleja campestris ssp. succulenta, Chamaesyce hooveri, Neostapfia 
colusana, Orcuttia inaequalis, and Orcuttia tenuis are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of habitat or range. The habitat of these species has been 
reduced and fragmented throughout their respective ranges as vernal 
pools continue to be eliminated by urbanization, flood control 
projects, landfill projects, highway development, and agricultural land 
conversion. Lands on the Central Valley floor are closer to existing 
and expanding cities and farms than the valley rim, which is steeper, 
less fertile and more removed from cities. As a result, valley floor 
vernal pools, along with open rangeland, have been and continue to be 
favored for urban and agricultural development. Within the last 20 
years, conversion of land to agricultural use is known to have 
eliminated one population of Chamaesyce hooveri in Tulare County; five 
populations of Neostapfia colusana in Stanislaus County, one in Colusa 
County, and one in Merced County; five populations of Orcuttia 
inaequalis in Stanislaus County, four in Madera County, three in Merced 
County, and one in Fresno County; five populations of O. pilosa in 
Stanislaus County, two in Madera County, and one in Merced County; one 
population of O. tenuis in Shasta County; one population of Tuctoria 
greenei in Tulare County, three in Fresno County, one in Madera County, 
four in San Joaquin County, two in Stanislaus County, and two in Tehama 
County (Stone et al. 1988, Rarefind 1996). Agricultural land conversion 
now threatens eight populations of O. pilosa in Madera and Stanislaus 
counties; two populations of Chamaesyce hooveri in Stanislaus County 
and three populations in Tulare County; one population of Castilleja 
campestris ssp. succulenta in Madera County and one in Fresno County; 
fourteen populations of N. colusana in southeastern Stanislaus County; 
seven populations of T. greenei in Merced County; and two populations 
of O. inaequalis in Madera County (Stone et al. 1988, Woodward-Clyde 
1992, CNDDB 1996).
    Additionally, numerous activities associated with agricultural 
development have caused habitat degradation severe enough that many 
populations of the species proposed for listing herein have not been 
seen for 2 consecutive years or more and are presumed to be extirpated 
(Stone et al. 1988, CNDDB 1996). For example, livestock pond 
construction has inundated one population of Neostapfia colusana in 
Merced County. Irrigated agriculture and associated runoff have likely 
eliminated one population of Orcuttia inaequalis in Madera County, and 
one population of Tuctoria greenei in Madera County and one in Merced 
County. Overgrazing and hay production likely have destroyed one 
population of O. inaequalis in Tehama County. Discing combined with 
grazing presumably has destroyed one population of T. greenei in Merced 
County. Discing also has destroyed one population of N. colusana in 
Tulare County. Discing has likely eliminated one population of 
Castilleja campestris ssp. succulenta in Fresno County (Stone et al. 
1988, CNDDB 1996). In addition, 5 of the 12 remaining populations of O. 
pilosa in Madera, Merced, and Stanislaus counties have been damaged by 
discing or discing combined with grazing (Stone et al. 1988).
    Human activities that alter the hydrology of vernal pools, 
including changes in the amount of water or the length of inundation, 
may directly and indirectly affect vernal pool plants. For example, a 
vernal pool known to contain Orcuttia tenuis was channelized for 
mosquito abatement. It is likely that the population was extirpated as 
a result (Stone et al. 1988, CNDDB 1996). Pond construction for 
recreational waterfowl hunting in Colusa County has presumably 
eliminated one population of Neostapfia colusana. Additionally, 
hydrological modifications have destroyed two Merced County and one 
Fresno County population of O. inaequalis, and three populations of O. 
tenuis in Shasta County (Stone et al. 1988). Increases in agricultural 
field runoff are responsible for possibly extirpating one population of 
N. colusana in Merced County and one in Stanislaus County (CNDDB 1996). 
One population of Chamaesyce hooveri in Stanislaus County is threatened 
by increases in agricultural irrigation runoff and by grazing (CNDDB 
1996). The U.S. Army Corps of Engineers' (Corps) Merced County Stream 
Channel Project threatens three populations of O. inaequalis, four 
populations of N. colusana, and four populations of Castilleja 
campestris ssp. succulenta in Merced County within the San Joaquin 
Valley (R. Keck, Service, pers. comm. 1992; CNDDB 1996).
    Because the human population of the Central Valley is growing 
rapidly, numerous populations of Chamaesyce hooveri, Orcuttia 
inaequalis, O. pilosa, O. tenuis, and O. viscida have been extirpated 
and continue to be threatened by urban development projects. For 
example, two major proposed urban developments are likely to adversely 
affect significant amounts of vernal pool habitat in the Central 
Valley, one for 80,000 people in southwest Placer County and one for 
40,000 people in southeastern Yolo County. In El Dorado County, a 730 
ha (1,800 ac) community near Georgetown is proposed as the first of 15 
large-scale urban developments. Four new cities, projected to house 
142,000 people, are proposed for Sutter County in the Sacramento Valley 
(Weigand 1991). Urbanization has extirpated one population of O. 
inaequalis in Fresno County, three populations of O. pilosa in Madera 
County, and one population of Tuctoria greenei in Tehama County (Stone 
et al. 1988). In the Sacramento Valley, eight populations of O. tenuis 
in Shasta County are threatened by urbanization around Redding (Stone 
et al. 1988). Numerous proposed housing developments, golf courses, and 
landfills in the Sacramento and San Joaquin valleys threaten vernal 
pool areas that may provide suitable habitat for O. tenuis and O. 
viscida, including Borden Ranch, Evelyn Clipper Residential 
Subdivision, Laguna Commons, Laguna Palms, Lakeview subdivision, Merced 
Community Golf Course, Rio Mesa subdivision, River Bend Ranch, Sunrise-
Douglas, and Yosemite Estates (June DeWesse, Kelly Geer, and Mark 
Littlefield, Service, pers. comm. 1994; CNDDB 1996). Although one 
population of O. viscida in eastern Sacramento County is within a 
preserve, this population remains threatened by a proposed subdivision 
(G. Clark, CNPS, pers. comm. 1993). Housing tract developments imperil 
two populations of Castilleja campestris ssp. succulenta in Fresno 
County and one population in Madera County, and one population of

[[Page 14347]]

O. tenuis in Shasta County (CNDDB 1996).
    Proposed gravel and aggregate mining projects that threaten to 
destroy vernal pool habitat containing Orcuttia inaequalis, O. viscida 
and Castilleja campestris ssp. succulenta include Granite Vineyard 
Aggregate Mining Project and Granite 1/Aspen VI, both in Sacramento 
County, and Fresno County Surface Mining (K. Geer, pers. comm. 1994). 
The University of California prepared a draft environmental impact 
statement for a new 810-ha (2,000-ac) campus for 25,000 students that 
will be located at Lake Yosemite in Merced County. The site is in 
valley grassland that harbors vernal pool habitat (John Zimmermann, 
University of California, in litt. 1994; Geer, pers. comm. 1994) and 
contain some of the eight plant species in this rule.
    In addition to the numerous housing developments discussed above, 
increasing urbanization of the Central Valley can affect vernal pool 
habitat. Landfills, highway projects, and a proposed Federal prison 
facility on a former U.S. Air Force base threaten vernal pool habitat. 
For example, the 90 ha (200 ac) Merced County Landfill will destroy 
vernal pools contained in the project area. This project area contains 
Orcuttia inaequalis, O. pilosa, Castilleja campestris ssp. succulenta, 
Neostapfia colusana, and Tuctoria greenei. Additionally, a proposed 
landfill threatens one population of C. campestris ssp. succulenta in 
Fresno County (CNDDB 1996). One of the seven Sacramento County 
populations of O. viscida is threatened by a public landfill expansion 
(G. Clark, in litt. 1993). Three populations of C. campestris ssp. 
succulenta, two populations of O. inaequalis, and one population of O. 
pilosa in Madera County are threatened by proposed expansion of State 
Highway 41 (Brian Apper, California State Dept. of Transportation, in 
litt. 1993; CNDDB 1996). One population of N. colusana in Merced County 
is threatened by a proposed Federal prison on part of the former Castle 
Air Force Base (Earth Technology Corporation 1994).
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. Overutilization is not known to be a factor for 
any of these species. Collecting for scientific or horticultural 
purposes or uncontrolled visits by groups or individuals could result 
in trampling of vernal pool plants from increased publicity that may 
result from a listing proposal. The Service is aware of several 
instances of the destruction of vernal pool and associated upland 
habitats known or likely to contain species proposed for Federal 
listing in the Central Valley of California. Vandalism is considered a 
threat to the eight vernal pool species, as discussed further in the 
``Critical Habitat'' section of this rule.
    C. Disease or predation. All eight plants occur mostly on private 
land, some Federal rangelands managed by the USFS and the BLM that are 
subject to livestock grazing, and rarely on National Wildlife Refuge 
lands managed by the Service. Livestock grazing and associated 
trampling may or may not adversely affect vernal pool plants depending 
on, among other things, the kind of livestock, stocking level, season-
of-use, and grazing duration. The intensity and, more importantly, the 
timing of this activity affect how livestock grazing may adversely 
impact vernal pool plants (Stone et al. 1988). However, as long as the 
land remains in dry pasture, moderate grazing regimes appear to have 
little impact on populations of Orcuttia, Neostapfia, Tuctoria, and 
Chamaesyce hooveri (Stone et al. 1988). The stems of C. hooveri exude a 
latex when broken that appears to repel herbivores and that may be 
poisonous. The impact of grazing combined with plant competition 
probably has an adverse effect on Tuctoria greenei (see Factor E 
below).
    D. The inadequacy of existing regulatory mechanisms. The Endangered 
Species Act can incidentally afford protection to these plants if they 
co-exist with species already listed as threatened or endangered. Four 
other listed species may occur with these plants: The vernal pool 
tadpole shrimp (Lepidurus packardi); conservancy fairy shrimp 
(Branchinecta conservatio); longhorn fairy shrimp (B. longiantenna); 
and vernal pool fairy shrimp (B. lynchi). However, these species are 
only rarely and sporadically found in the same vernal pools or vernal 
pool complexes as the eight vernal pool plants.
    Under section 404 of the Clean Water Act, the U. S. Army Corps of 
Engineers (Corps) regulates the discharge of fill into waters of the 
United States, which includes navigable and isolated waters, 
headwaters, and adjacent wetlands. The section 404 regulations require 
that applicants obtain an individual permit to place fill for projects 
affecting greater than 4 ha (10 ac) of waters of the United States. 
Nationwide Permit (NWP) No. 26 (33 CFR part 330) was established by the 
Department of the Army to facilitate authorization of discharges of 
fill into isolated waters (such as vernal pools) that cause the loss of 
less than 4 ha (10 ac) of waters of the United States, and that cause 
only minimal individual and cumulative environmental impacts. Projects 
that qualify for authorization under NWP 26 and that affect less than 
one acre of isolated waters or headwaters may proceed without notifying 
the Corps. Evaluation of impacts of such projects through the section 
404 permit process is thus precluded.
    Corps District and Division Engineers may require that an 
individual section 404 permit be obtained if projects otherwise 
qualifying under NWP 26 would have greater than minimal individual or 
cumulative environmental impacts. However, the Corps has been reluctant 
to withhold authorization under NWP 26 unless the existence of a listed 
threatened or endangered species would be jeopardized, regardless of 
the significance of the affected wetland resources.
    Additionally, and equally important, the upland watersheds of 
vernal pools are not provided any protection in most cases. Disturbance 
or loss of watersheds have extirpated several populations of these 
species as discussed previously in Factor A. Thus, as a consequence of 
the small scale of many vernal pools (most are less than one acre in 
size) and the lack of protection of associated watersheds, these vernal 
pool plants receive insufficient Federal protection under section 404 
of the Clean Water Act.
    The Orcuttia tenuis Species Management Guide written by the Lassen 
National Forest and the Susanville District of the BLM (1990) gives 
long-term management direction for 5 of 19 Forest Service and BLM plant 
and animal populations in Plumas, Shasta, and Siskiyou counties in 
northern California. Since 1990, three of the five populations of O. 
tenuis included in the guide have been fenced to protect them from 
impacts from grazing and off-highway vehicle use. Since 1990, six 
additional populations of O. tenuis located on BLM administered land, 
not currently included in the species management guide, have been 
fenced to protect the populations from grazing. Grazing has been 
discontinued in some instances.
    The California Fish and Game Commission has listed Castilleja 
campestris ssp. succulenta, Neostapfia colusana, Orcuttia inaequalis, 
O. pilosa, O. tenuis, and O. viscida as endangered, and has classified 
Tuctoria greenei as a rare species under the California Endangered 
Species Act (California Fish and Game Code section 2050 et seq.) and 
California Code of Regulations Title 14 Sec. 670.2 (1995). Chamaesyce 
hooveri is not State-listed or classified.

[[Page 14348]]

Although the ``take'' of State-listed plants is prohibited under the 
California Native Plant Protection Act (California Fish and Game Code 
Section 1908 and California Fish and Game Code Section 2080), State law 
appears to exempt the taking of such plants via habitat modification or 
land use changes by the owner. After the CDFG notifies a landowner that 
a State-listed plant grows on his or her property, the California 
Native Plant Protection Act requires only that the landowner notify the 
agency ``at least 10 days in advance of changing the land use to allow 
salvage of such a plant'' (California Fish and Game Code Sec. 1913(c)).
    The California Environmental Quality Act (CEQA) obligates 
disclosure of environmental resources within proposed project areas and 
may enhance opportunities for conservation efforts. However, CEQA does 
not guarantee that such conservation efforts will be implemented. 
Additionally, part of the environmental review under the CEQA for 
projects that result in the loss of sites supporting these species 
includes the development of mitigation plans. Such plans usually 
involve the transplantation of the plant species to another existing 
vernal pool, or the artificial creation of vernal pool habitat. 
Transplantation and habitat creation efforts are experimental in nature 
at this time, and are generally not successful (Fiedler 1991, Jones and 
Stokes 1990). Following the development of the transplantation plan, 
the original site is destroyed. Therefore, if the mitigation effort 
fails, the resource has already been lost.
    The public agency with primary authority or jurisdiction over the 
project (the lead agency) is responsible for conducting a review of the 
project and consulting with other agencies concerned with the resources 
affected by the project. However, the lead agency may approve projects 
that cause significant environmental damage, such as the destruction of 
State-listed endangered species, and does not always require adequate 
mitigation for the replacement or protection of the affected resources. 
The protection of listed species through CEQA is therefore dependent 
upon the discretion of the lead agency.
    Conservation easements do not currently ensure adequate protection 
for these vulnerable plant species. First, fewer than 8 percent of the 
populations of these eight species are within existing conservation 
easements. Secondly, although four populations of Orcuttia pilosa are 
located on the TNC's Vina Plains Preserve, only one of these sites is 
excluded from an agreement allowing continued cattle grazing by the 
previous landowner, and the other populations have all been damaged by 
grazing (Stone et al. 1988). Two of the five populations of Tuctoria 
greenei on the Vina Plains Preserve are also damaged and declining due 
to grazing (CNDDB 1996).
    E. Other natural or manmade factors affecting its continued 
existence. Nonnative annual and perennial plants have invaded many 
vernal pools of the Central Valley. Nonnative annual grasses such as 
Hordeum geniculatum, Phalaris paradoxa, Polypogon monospeliensis, and 
Lolium multiflorum and soil disturbance associated with cattle grazing 
appear to result in low vigor and low seed production of two 
populations of Orcuttia inaequalis in Merced County (Stone et al. 
1988). Additionally, the nonnative perennial herb, Sida hederacea, 
appears to threaten another O. inaequalis population at a heavily 
grazed site in Merced County (Stone et al. 1988). This same perennial, 
along with the three weedy, nonnative grasses L. multiflorum, H. 
geniculatum, and P. monospeliensis, appear to threaten three 
populations of O. pilosa, two in Tehama County and one in Stanislaus 
County (Stone et al. 1988). The native perennials Eleocharis 
macrostachya and Eryngium sp. appear to limit distribution and 
abundance of three populations of O. tenuis in Shasta County and ten 
populations in Tehama County in the Sacramento Valley (Stone et al. 
1987, 1988). Five populations of Chamaesyce hooveri in Tehama County 
are threatened by one or more native or nonnative plant species (CNDDB 
1996). The distribution and abundance of O. viscida at six of the seven 
extant sites is significantly restricted by Eleocharis macrostachya, 
which appears to threaten one population of O. viscida through 
competitive exclusion (Stone et al. 1988). Another population of 
Neostapfia colusana on TNC's Jepson Prairie Preserve is threatened by 
competitive exclusion from the nonnative, aggressive Phyla nodiflora 
var. nodiflora (CNDDB 1996; G. Clark, in litt. 1993). Initial results 
from on-going research regarding controlling or eradicating Phyla 
nodiflora var. nodiflora at the Jepson Prairie Preserve have indicated 
that control or eradication is likely to be very difficult (CDFG 
1991h).
    Soil disturbance from cattle grazing combined with competition from 
the introduced annual grasses Crypsis schoensides, Phalaris paradoxa, 
Hordeum geniculatum, and Polypogon monspeliensis and the nonnative 
perennial Lolium multiflorum appear to adversely affect two populations 
of Tuctoria greenei in Tehama County and one in Butte County within the 
Sacramento Valley, and all seven remaining extant sites in Merced 
County in the San Joaquin Valley (Stone et al. 1987, 1988; CNDDB 1996). 
Tuctoria greenei appears to be the most susceptible of the eight plants 
in this rule to negative grazing impacts because its preference to grow 
in the margin of a vernal pool (along the outer edges of the pool) 
makes it more susceptible to livestock trampling damage and competition 
from nonnative weeds such as L. multiflorum, Phalaris paradoxa, and 
Polypogon monospeliensis (Stone et al. 1987). All populations of T. 
greenei are subject to grazing. One population of T. greenei in Tehama 
County, two in Merced County, and one in Butte County are damaged and 
declining due to grazing (Stone et al. 1988). Because cattle grazing is 
likely the primary cause for extirpation or presumed extirpation of T. 
greenei at eight sites and all other populations are grazed by 
livestock, the remaining populations of T. greenei are potentially 
threatened by grazing (Stone et al. 1988). Lastly, the primary threat 
to populations of Orcuttia pilosa, O. tenuis, and T. greenei on TNC's 
Vina Plains Preserve is competition from nonnative, aggressive weeds, 
including Convolvulus arvensis, Proboscidea louisianica, and Xanthium 
strumarium (CDFG 1991i, CNDDB 1996).
    A population of Neostapfia colusana on the McClellan U.S. Air Force 
Base radio transmitter site in Yolo County is severely degraded due to 
herbicide runoff from the antenna pads and to discing of firebreaks 
(CNDDB 1996; G. Clark, in litt. 1993).
    Off-highway vehicle damage has been reported to one population of 
Orcuttia tenuis in Plumas County and threatens two additional 
populations in Shasta and one population of O. pilosa in Madera County 
(CNDDB 1996).
    Because vernal pools are fairly localized habitats in close 
proximity to urban and agricultural areas, uncontrolled visits by 
groups or individuals could result in trampling of vernal pool plants 
and potentially threaten all eight species.
    The Service has carefully assessed the best scientific and 
commercial information available regarding the present and future 
threats faced by these eight species in determining to issue this rule. 
As described under the ``Summary of Factors Affecting the Species'' 
section above, the available information indicates that many of the 
populations of these plants are currently threatened. Thirty-three 
populations of these eight vernal pool plants have been extirpated and 
much of the habitat has

[[Page 14349]]

been lost to a variety of human activities. Large-scale human 
population increases and attendant urban growth, as well as changes in 
agricultural uses in adjacent areas, have destroyed and continue to 
destroy significant quantities of the plants' vernal pool habitat and 
continue to eliminate many plant populations. As a result, all eight 
species have fragmented, discontinuous, highly restricted habitats 
within the Central Valley, most of which are vulnerable to current and 
future threats.
    More than half of the remaining populations of the plants 
determined for listing as endangered face numerous on-going threats. 
Although these remaining populations of O. pilosa, O. viscida, and 
Tuctoria greenei vary in size of occupied habitat, their geographic 
distribution near expanding urban areas and restriction to the Central 
Valley floor renders them more vulnerable to various threats, as 
described in Factor ``A''. The Central Valley floor is favored over the 
valley rim for urban development, agricultural activities, and 
agricultural land conversion. The immediacy and magnitude of threats to 
these plant populations is, therefore, greater than those occurring 
above the valley floor. Nine populations of O. pilosa have been lost 
and two others are possibly extirpated. Fourteen of the remaining 25 
native extant populations of O. pilosa are variously threatened by 
urbanization, agricultural land conversion, a highway expansion 
project, discing, off-highway vehicle use, and competition from 
nonnative weeds. Of the seven extant populations of O. viscida, five 
populations are threatened by one or more of the following factors--a 
landfill project, urban development, and competition from nonnative 
weeds. Approximately half the known populations of Tuctoria greenei 
have been extirpated or are possibly extirpated by some form of human 
activity. With the exception of the population on the Sacramento 
National Wildlife Refuge, the remaining 20 extant populations of T. 
greenei are variously threatened by competition from nonnative weeds, 
grazing, and agricultural land conversion. Based upon the above 
evaluation, the proposed action is to list O. pilosa, O. viscida, and 
T. greenei as endangered.
    The remaining populations of the four species proposed as 
threatened and Orcuttia inaequalis, which was proposed as endangered, 
face fewer existing threats, that are of lesser magnitude. Moreover, 
several populations of these five plants occur in pool habitats above 
the Central Valley floor (up to 1,090 m (3,600 feet) in elevation) and/
or somewhat removed from expanding urban areas. Nonetheless, these five 
species are likely to become increasingly imperiled in the foreseeable 
future unless current trends of urban development and agricultural 
conversion are reversed. Of the 36 extant populations of Castilleja 
campestris ssp. succulenta, nearly half are threatened by one or more 
of the following--urbanization, agricultural land conversion, discing, 
trampling, a flood control project, and a proposed highway expansion 
project. About one-third of the 25 remaining populations of Chamaesyce 
hooveri are threatened by agricultural land conversion, a flood control 
project, and/or competition with nonnative weeds. Ten populations of 
Neostapfia colusana are lost or suspected of being lost due to 
conversion of habitat. Of the 44 remaining populations of N. colusana, 
22 populations are threatened or are damaged and declining due to 
agricultural land conversion, discing, a flood control project, a 
proposed Federal prison, herbicide contaminated runoff, and/or 
competition with nonnative plants. Sixteen populations of O. inaequalis 
have been lost and three other populations are possibly extirpated. Of 
the remaining 23 native extant populations of O. inaequalis, 11 are 
variously threatened by urbanization, agricultural land conversion, and 
competition with nonnative weeds. Twenty-three of the 59 native extant 
populations of O. tenuis are variously threatened either by one or more 
of the following--urbanization, altered hydrology, off-highway 
vehicles, and competition from nonnative weeds. Based on the evaluation 
above, the preferred action is to list Castilleja campestris ssp. 
succulenta, Chamaesyce hooveri, N. colusana, O. inaequalis, and O. 
tenuis as threatened.
    Alternatives to this action were considered but not preferred. Not 
listing Orcuttia pilosa, O. viscida, and Tuctoria greenei as endangered 
or Castilleja campestris ssp. succulenta, Chamaesyce hooveri, 
Neostapfia colusana, O. inaequalis, and O. tenuis as threatened would 
not provide adequate protection and would not be consistent with the 
Act. The Service is not proposing to designate critical habitat for 
these plants species at this time, as discussed below.

Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as: (i) 
The specific areas within the geographical area occupied by a species, 
at the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' as defined in section 3(3) of the Act 
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 the implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
a species is determined to be endangered or threatened. The Service 
finds that designation of critical habitat is not prudent for Orcuttia 
pilosa, O. viscida, Tuctoria greenei, Castilleja campestris ssp. 
succulenta, Chamaesyce hooveri, Neostapfia colusana, O. inaequalis, and 
O. tenuis. Service regulations (50 CFR 424.12(a)(1)) state that the 
designation of critical habitat is not prudent when one or both of the 
following situations exist--(1) the species is imperiled by taking or 
other human activity and the identification of critical habitat can be 
expected to increase the degree of such threat to the species, or (2) 
such designation of critical habitat would not be beneficial to the 
species. In the case of the eight vernal pool plants in this final 
rule, both criteria are met.
    The listing of these plants as endangered or threatened elevates 
awareness of their rarity, making them more sought after by curiosity 
seekers, researchers, rare plant collectors, and vandals. Because 
vernal pool habitats are small and easily identified, the publication 
of precise maps and descriptions of critical habitat in the Federal 
Register would increase the vulnerability of these plant species to 
incidents of collection and general vandalism. Over a period of recent 
years, the Service is aware of the discing or filling of vernal pools 
and associated upland habitats known to or likely containing Federal 
candidate, proposed or listed species including vernal pool fairy 
shrimp (Branchinecta lynchi), vernal pool tadpole shrimp (Lepidurus 
packardi), California tiger salamander (Ambystoma californiense), 
Burke's goldfields (Lasthenia burkei), Sonoma sunshine (Blennosperma 
bakeri), and Butte County meadowfoam (Limnanthes floccosa ssp. 
californica) (Jim Browning, Jan Knight, Chris Nagano, Dan Strait, 
Service, pers. comms. 1994).

[[Page 14350]]

    Most of the populations of the eight vernal pool plants occur on 
private lands where Federal involvement in land-use activities does not 
generally occur. The most likely Federal involvement would occur with 
the Corps through section 404 of the Clean Water Act. The Service finds 
that Federal involvement in the few areas where these plants occur on 
Federal land has already been identified without the designation of 
critical habitat. The USFS and the BLM jointly have prepared a species 
management guide for Orcuttia tenuis. A few populations have been 
fenced to protect them from off-highway vehicle use and grazing. The 
BLM also is aware of the populations of Castilleja campestris ssp. 
succulenta and O. inaequalis and has fenced several populations of each 
species to protect the populations from trespass grazing. Sacramento 
National Wildlife Refuge personnel are also aware of the few 
populations of Chamaesyce hooveri, O. pilosa, and Tuctoria greenei 
occurring on Service land in Glenn County. Protection of a few 
populations of several of these vernal pool plants and their habitats 
on Federal land will be addressed through the recovery process and 
through the section 7 consultation process. Therefore, the Service 
finds that designation of critical habitat for these eight plants is 
not prudent at this time because such designation would increase the 
threat from vandalism or other human activities. The Service also finds 
that designation of critical habitat is not beneficial because most of 
the populations of the eight vernal pool plants are found on private 
lands. Where they are found on Federal lands, the agencies are aware of 
the species and are already addressing conservation efforts.

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 
activities. 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 State and requires that recovery actions be 
carried out for all listed species. 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)(1) requires Federal agencies to use their 
authorities to further the purposes of the Act by carrying out programs 
for listed species. Section 7(a)(2) of the Act requires Federal 
agencies to insure 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 
is likely to adversely affect a listed species, the responsible Federal 
agency must enter into formal consultation with the Service.
    The Corps of Engineers will become involved with these species 
through its permitting authority under section 404 of the Clean Water 
Act as well as water projects in the Central Valley such as the Merced 
County Streams Project. By regulation, nationwide permits may not be 
issued where a federally listed endangered or threatened species would 
be affected by the proposed project without first completing formal 
consultation pursuant to section 7 of the Act. The presence of a listed 
species would highlight the national importance of these resources. In 
addition, issuance of housing loans by the Department of Housing and 
Urban Development in areas that presently support these eight species 
would be subject to review by the Service under section 7 of the Act. 
The BOR will become involved under its Friant water contract renewal 
program to the extent that these species may occur within the 404,700 
ha (1 million ac) water delivery area (M. Kohl, Service, pers. comm. 
1992). Other future BOR contract renewals will provide additional 
potential for section 7 involvement. The BLM and the USFS will become 
involved as they are responsible for authorizing grazing and other land 
uses in areas containing vernal pools. Highway construction and 
maintenance projects that receive funding from the Department of 
Transportation (Federal Highways Administration) will be subject to 
review under section 7 of the Act. The Federal Bureau of Prisons could 
become involved in discussions with the Service in the event that part 
of the reuse of the former U.S. Castle Air Force Base is determined to 
be a Federal prison facility. Castle Air Force Base is now closed, but 
the property is still under Federal ownership. The U.S. Air Force may 
become involved regardless of the decision of whether a Federal prison 
is located on part of the former U.S. Air Force base.
    Listing Orcuttia pilosa, O. viscida, and Tuctoria greenei as 
endangered and Castilleja campestris ssp. succulenta, Chamaesyce 
hooveri, Neostapfia colusana, O. inaequalis, and O. tenuis as 
threatened provides for the development of a recovery plan(s), which 
will bring together State and Federal efforts for conservation of these 
plants. The recovery plan(s) would establish a framework for agencies 
to coordinate activities and cooperate with each other in conservation 
efforts. The plan(s) would set recovery priorities and estimate costs 
of various tasks necessary to accomplish them. It also would describe 
site-specific management actions necessary to achieve conservation and 
survival of these species. Additionally, pursuant to section 6 of the 
Act, the Service would be able to grant funds to affected states for 
management actions aiding in the protection and recovery of these 
plants.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered and 
threatened plants. All prohibitions of section 9(a)(2) of the Act, 
implemented by 50 CFR 17.61 and 17.71, 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. Section 4(d) of the Act allows for the provision 
of such protection to threatened species through regulation. Seeds from 
cultivated specimens of threatened plant taxa are exempt from these 
prohibitions provided that a statement ``Of Cultivated Origin'' appears 
on the shipping containers. Certain exceptions apply to agents of the 
Service and State conservation agencies.
    The Act and 50 CFR 17.62, 17.63, and 17.72 also provide for the 
issuance of permits to carry out otherwise prohibited activities 
involving endangered or threatened plant species under certain 
circumstances. Such permits are available for scientific purposes and 
to enhance the

[[Page 14351]]

propagation or survival of the species. For threatened plants, permits 
are also available for botanical or horticultural exhibition, 
educational purposes, or special purposes consistent with purposes of 
the Act. Because none of these eight plants are common in the wild or 
in cultivation, trade permits likely would not be sought. Requests for 
copies of the regulations on plants and inquiries regarding them may be 
addressed to the U.S. Fish and Wildlife Service, Ecological Services, 
Permits Branch, 911 NE 11th Avenue, Portland, Oregon 97232-4181 (503/
231-6241).
    It is the policy of the Service (59 FR 34272; July 1, 1994) to 
identify to the maximum extent practicable at the time of listing 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 or on-going activities. The 
Service believes that the following actions would result in a violation 
of section 9, although possible violations are not limited to these 
actions alone: Collection, damage, or destruction of these species on 
Federal lands, except in certain cases described below; and activities 
on non-Federal lands conducted in knowing violation of California State 
law, which requires a ten day notice be given before taking of plants 
on private land. The Service believes that, based on the best available 
information, the following actions will not result in a violation of 
section 9 on private land provided that they do not violate State 
trespass or other laws: Livestock grazing, ranching operations 
(construction or maintenance of fences, water facilities, corrals; off-
road vehicle travel), firebreak construction and maintenance, non-
federally authorized mining, and recreational activities. Activities 
that occur on Federal land, or on private land that receive Federal 
authorization, permits, or funding, and for which either a Federal 
endangered species permit is issued to allow collection for scientific 
or recovery purposes, or a consultation is conducted in accordance with 
section 7 of the Act, would also not result in a violation of section 
9. General prohibitions and exceptions that apply to all endangered and 
threatened plants in section 9(a)(2) of the Act, implemented by 50 CFR 
17.61 and 17.71, apply as discussed earlier in this section. Questions 
regarding whether specific activities will constitute a violation of 
section 9 should be directed to the Field Supervisor of the Service's 
Sacramento Field Office (see ADDRESSES section).

National Environmental Policy Act

    The Service has determined that Environmental Assessments and 
Environmental Impact Statements, as defined by 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, as amended. A notice outlining the Service's reasons for 
this determination 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. This rulemaking was not subject to review by the Office 
of Management and Budget under Executive Order 12866. The Department 
has determined that these final regulations meets the applicable 
standards provided in Sections 3(a) and 3(b)(2) of Executive Order 
12988.

References Cited

    A complete list of all references cited herein is available upon 
request from the Field Supervisor of the Sacramento Field Office (see 
ADDRESSES section).
    Author: The primary author of this proposed rule is Ken Fuller (see 
ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
record-keeping 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.


Sec. 17.12  [Amended]

    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:
* * * * *
    (h) * * *

                                                                                                                                                        
--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species                                                                                                                           
----------------------------------------------------  Historic  range        Family             Status          When         Critical     Special  rules
        Scientific name              Common name                                                               listed        habitat                    
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants:                                                                                                                                       
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Castilleja campestris ssp.       Fleshy owl's-       U.S.A. (CA).....  Scrophulariaceae..  T                        611  NA               NA            
 succulenta.                      clover.                                                                                                               
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Chamaesyce hooveri.............  Hoover's spurge...  U.S.A. (CA).....  Euphorbiaceae.....  T                        611  NA               NA            
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Neostapfia colusana............  Colusa grass......  U.S.A. (CA).....  Poaceae...........  T                        611  NA               NA            
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Orcuttia inaequalis............  San Joaquin Valley  U.S.A. (CA).....  Poaceae...........  T                        611  NA               NA            
                                  Orcutt grass.                                                                                                         
                                                                                                                                                        

[[Page 14352]]

                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Orcuttia pilosa................  Hairy Orcutt grass  U.S.A. (CA).....  Poaceae...........  E                        611  NA               NA            
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Orcuttia tenuis................  Slender Orcutt      U.S.A. (CA).....  Poaceae...........  T                        611  NA               NA            
                                  grass.                                                                                                                
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Orcuttia viscida...............  Sacramento Orcutt   U.S.A. (CA).....  Poaceae...........  E                        611  NA               NA            
                                  grass.                                                                                                                
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Tuctoria greenei...............  Greene's tuctoria.  U.S.A. (CA).....  Poaceae...........  E                        611  NA               NA            
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Offset Folios 7 to 8 Insert Here
    Dated: February 24, 1997.
John G. Rogers,
Acting Director, U.S. Fish and Wildlife Service
[FR Doc. 97-7619 Filed 3-25-97; 8:45 am]
BILLING CODE 4310-55-P