[Federal Register Volume 63, Number 62 (Wednesday, April 1, 1998)]
[Proposed Rules]
[Pages 15820-15825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8516]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AE82
Endangered and Threatened Wildlife and Plants; Proposed
Endangered Status for the Plant Phlox hirsuta (Yreka Phlox) From
Northern California
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The Fish and Wildlife Service proposes endangered status
pursuant to the Endangered Species Act (Act) of 1973, as amended for
one perennial plant, Phlox hirsuta (Yreka phlox). Phlox hirsuta is
known only from two locations on serpentine slopes in Siskiyou County,
California. A third location, near Etna Mills, California, has been
searched, but no plants or habitat have been found since 1930.
Urbanization, inadequate State regulatory mechanisms, and extirpation
from random events due to small number of populations and small range
of the species threaten Phlox hirsuta. This proposal, if made final,
would implement the Federal protection and recovery provisions afforded
by the Act for this plant species.
DATES: Comments from all interested parties must be received by June 1,
1998. Public hearing requests must be received by May 18, 1998.
ADDRESSES: Comments and materials concerning this proposal should be
sent to the Field Supervisor, Sacramento Fish and Wildlife Office, U.S.
Fish and Wildlife Service, 3310 El Camino Avenue, Suite 130,
Sacramento, California 95821-6340. Comments and materials received, as
well as the supporting documentation used in preparing the rule, will
be available for public inspection, by appointment, during normal
business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Diane Elam, Sacramento Fish and
Wildlife Office (see ADDRESSES section) (telephone 916/979-2120;
facsimile 916/979-2128).
SUPPLEMENTARY INFORMATION:
Background
Phlox hirsuta (Yreka phlox) is endemic to Siskiyou County,
California where it grows on serpentine slopes in the vicinity of the
City of Yreka (California Native Plant Society (CNPS) 1985). Serpentine
soils are derived from ultramafic rocks (rocks with unusually large
amounts of magnesium and iron). Ultramafic rocks are found
discontinuously throughout California, in the Sierra Nevada and in the
Coast Ranges from Santa Barbara County, California to British Columbia.
Soils produced from ultramafic rocks have characteristic physical and
chemical properties, tending to have high concentrations of magnesium,
chromium, and nickel, and low concentrations of calcium, nitrogen,
potassium, and phosphorus. Serpentine soils alter the pattern of
vegetation and plant species composition nearly everywhere they occur.
While serpentine soils are inhospitable for the growth of most plants,
some plants are wholly or largely restricted to serpentine substrates
(Kruckeberg 1984).
In 1876, Edward Green collected the type specimen of Phlox hirsuta
8 kilometers (5 miles) southwest of Yreka, California (Wherry 1955).
Elias Nelson described the species in 1899 (Abrams 1951, CNPS 1985).
Willis Jepson (1943) reduced the species to varietal status, treating
the taxon as Phlox stansburyi var. hirsuta. Edgar Wherry returned the
taxon to full species status in his 1955 revision of the genus Phlox.
Phlox hirsuta is a perennial subshrub in the phlox family
(Polemoniaceae). The species grows 5 to 15 centimeters (2 to 5.9
inches) high from a stout, woody base and is hairy throughout. Narrowly
lanceolate to ovate leaves with glandular margins are crowded on the
stem. The leaves are 1.5 to 3 centimeters (0.6 to 1.2 inches) long and
4 to 7 millimeters (0.2 to 0.3 inch) wide. Pink to purple flowers
appear from April to June. The corollas of the flowers are 12 to 15
millimeters (0.5 to 0.6 inch) long and are smooth-margined at the apex
(CNPS 1977, 1985). The 5 to 8 millimeters (0.2 to 0.3 inch) style is
contained within the corolla tube (CNPS 1977, 1985; Hickman 1993).
Several other phlox species may occur within the range of P. hirsuta.
Of these, P. speciosa (showy phlox) has notched petal lobes and grows
15 to 40 centimeters (5.9 to 15.8 inches), considerably taller than P.
hirsuta. Phlox adsurgens (northern phlox) is also larger than P.
hirsuta (15 to 30 centimeters (5.9 to 11.8 inches)). In addition, P.
adsurgens blooms later (from June to August) than P. hirsuta and is
glabrous rather than hairy. Prostrate (lying flat on the ground) to
decumbent (mostly lying on the ground but with tips curving up) stems
and herbage lacking glands separate P. diffusa (spreading phlox) from
P. hirsuta (CNPS 1977, 1985). Although found at the same latitudes, P.
stansburyi (Stansbury's phlox) occurs 112 kilometers (70 miles) farther
to the east in Lassen and Modoc Counties (CNPS 1977).
Phlox hirsuta is found on serpentine soils at elevations from 880
to 1,340 meters (2,800 to 4,400 feet) in association with Jeffrey pine
(Pinus jeffreyi), incense cedar (Calocedrus decurrens), and junipers
(Juniperus sp.)(CNPS 1985; California Department of Fish and Game
(CDFG) 1986; California Natural Diversity Data Base (CNDDB) 1997). The
species is known from only two locations in the vicinity of Yreka,
California. One occurrence is an open ridge in a juniper woodland
within the City limits of Yreka (CNPS 1977, 1985; CNDDB 1997).
Estimates of the area occupied by the occurrence range from
approximately 15 hectares (37 acres) (Grant and Virginia Fletcher, in
litt. 1995) to approximately 36 hectares (90 acres) (Nancy Kang, U.S.
Fish and Wildlife Service, in litt. 1995a). Other extreme serpentine
sites searched in the area do not support additional populations of
Phlox hirsuta (Adams 1987). The second occurrence is about 8 to 10
kilometers (5 to 6 miles) southwest of Yreka along California State
Highway 3 in an open Jeffrey pine forest (CNPS 1977, 1985; CNDDB 1997)
and includes approximately 65 hectares (160 acres) of occupied habitat
(USFWS maps on file). A third location, where the species was last
reported in 1930, is in the vicinity of Mill Creek near Etna Mills. The
area was searched, but no plants or appropriate habitat were identified
(CNPS 1985), and the location may be erroneous (CDFG 1986, Adams 1987).
Surveys have been conducted on 80 percent of the potential habitat
(defined as the presence of suitable soils) on Klamath National Forest
(Ken Fuller and Diane Elam, U.S. Fish and Wildlife Service, in litt.
1997) and Bureau of Land Management (Joe Molter, Bureau of Land
Management, pers. comm. 1997) lands within the Redding Resource Area;
no new populations of P. hirsuta have been discovered.
Land ownership of the two occurrences is a mixture of private land
owners, the City of Yreka, and the U.S. Forest Service (CNDDB 1997).
The City of Yreka occurrence is the more vigorous and dense of the two
occurrences (Linda Barker, Klamath
[[Page 15821]]
National Forest, in litt. 1985; Adams 1987; CNDDB 1997). Part of the P.
hirsuta occurrence in the City of Yreka is owned by the City of Yreka;
the remainder is privately owned (Larry Bacon, City of Yreka, pers.
comm. 1997). The Highway 3 occurrence is partially on U.S. Forest
Service lands on the Klamath National Forest, partially within a State
highway right-of-way, and partially privately owned (CDFG 1986, CNDDB
1997). Approximately 50 percent of occupied habitat at this occurrence
and 25 percent of the occupied habitat of the species is on land
administered by the Klamath National Forest (based on maps in USFWS
files). Phlox hirsuta is threatened by urbanization at the City of
Yreka location and by inadequate regulatory mechanisms throughout its
range. The small number of populations and small range of the species
also make it vulnerable to decline or extirpation due to random events
throughout its range.
Previous Federal Action
Federal government actions on Phlox hirsuta began as a result of
section 12 of the original Endangered Species Act of 1973, (Act) as
amended (16 U.S.C. 1531 et seq.), which directed the Secretary of the
Smithsonian Institution to prepare a report on those plants considered
to be endangered, threatened, or extinct in the United States. This
report, designated as House Document No. 94-51, was presented to
Congress on January 9, 1975, and included Phlox hirsuta as a threatened
species. The Fish and Wildlife 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 thereby to review the status of the plant taxa named
therein. The July 1, 1975 notice included the above taxon. On June 16,
1976, the Fish and Wildlife Service published a proposal (41 FR 24523)
to determine approximately 1,700 vascular plant species to be
endangered species pursuant to section 4 of the Act. The list of 1,700
plant taxa was assembled on the basis of comments and data received by
the Smithsonian Institution and the Fish and Wildlife Service in
response to House Document No. 94-51 and the July 1, 1975, Federal
Register publication. Phlox hirsuta was included in the June 16, 1976,
Federal Register document.
The Fish and Wildlife Service published an updated notice of review
for plants on December 15, 1980 (45 FR 82480). This notice included
Phlox hirsuta as a category 1 candidate. Category 1 candidates were
those taxa for which the Fish and Wildlife Service had on file
substantial information on biological vulnerability and threats to
support preparation of listing proposals. In the November 28, 1983
supplement to the Notice of Review (48 FR 53640) as well as in the
subsequent revision on September 27, 1985 (50 FR 39526), Phlox hirsuta
was included as a category 2 candidate. Category 2 taxa were those for
which data in the Service's possession indicate listing was possibly
appropriate, but for which substantial data on biological vulnerability
and threats were not currently known or on file to support proposed
rules. In the February 21, 1990 (55 FR 6184) notice of review, Phlox
hirsuta was returned to category 1 candidate status. The species was
also included as a category 1 candidate in the September 30, 1993 (50
FR 51143) Notice of Review. Phlox hirsuta was listed as a candidate in
the Notice of Review published on February 28, 1996 (61 FR 7596).
Candidate species are those for which the Fish and Wildlife Service has
on file sufficient information on biological vulnerability and
threat(s) to support proposals to list them as threatened or endangered
species.
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 Phlox hirsuta,
because the 1975 Smithsonian report had been accepted as a petition. On
October 13, 1982, the Fish and Wildlife Service found that the
petitioned listing of the species was warranted, but precluded by other
pending listing actions, in accordance with section 4(b)(3)(B)(iii) of
the Act; notification of this finding was published on January 20, 1984
(49 FR 2485). Such a finding requires the petition to be recycled,
pursuant to section 4(b)(3)(C)(I) of the Act. The finding was reviewed
annually in October of 1983 through 1997. Publication of this proposal
constitutes the final finding for the petitioned action. Phlox hirsuta
has a listing priority number of 2. Processing of this rule is a Tier 3
activity under the current listing priority guidance (61 FR 64475, 62
FR 55268).
Summary of Factors Affecting the Species
Section 4 of the Act (16 U.S.C. 1533) and regulations (50 CFR part
424) promulgated to implement the listing provisions of the Act set
forth the procedures for adding species to the Federal lists. A species
may be determined to be endangered or threatened due to one or more of
the five factors described in section 4(a)(1). These factors and their
application to Phlox hirsuta E. Nelson (Yreka Phlox) are as follows:
A. The Present or Threatened Destruction, Modification, or Curtailment
of its Habitat or Range
The Phlox hirsuta occurrence within the City of Yreka represents at
least 18 percent, and possibly 45 percent, of occupied habitat for the
species (calculated from USFWS records). The occurrence is threatened
by development. The majority of the site is subdivided (CNPS 1985, CDFG
1986). Eight of the subdivision lots support P. hirsuta; seven have P.
hirsuta on at least 75 percent of the lot (N. Kang, in litt. 1995a).
Six of the eight lots are privately owned; two are owned by the City of
Yreka. Another smaller piece of land in the same area supports P.
hirsuta and is also owned by the city (N. Kang, in litt. 1995a; L.
Bacon, pers. comm. 1997). The P. hirsuta occurrence within the City of
Yreka has been disturbed by road construction associated with the
subdivision (CNPS 1985, CDFG 1986). An unmaintained roadway bisects the
occurrence and likely represents permanent destruction of habitat at
the site (N. Kang, in litt. 1995a). Additional disturbance resulted
from grading for a house pad on one lot in 1994; Phlox hirsuta has not
reinvaded the disturbed area (N. Kang, in litt. 1995a, 1995b). For most
of the lots, ``the most favorable and likely for building is in P.
hirsuta habitat'' (N. Kang, in litt. 1995a, 1995b). Because P. hirsuta
plants are fairly evenly distributed across the lots, strategic
placement of development in occupied habitat would not necessarily
minimize impacts to the species. Additionally, over the long-term
private landowners may not maintain their properties in a manner
consistent with protection of the plants and their habitat (N. Kang, in
litt. 1995a). Formerly, some lots at the site were registered with The
Nature Conservancy landowner contact program, but that program no
longer exists (Lynn Lozier, The Nature Conservancy, pers. comm. 1997).
While the Fish and Wildlife Service is unaware of specific development
plans on any lots at this time, a ``for sale'' sign was posted on the
private property in May 1997 (K. Fuller and D. Elam, in litt. 1997).
The only other occurrence of P. hirsuta, the one along California
State
[[Page 15822]]
Highway 3, has been disturbed in the past by logging and road
construction. Although selective logging (CNPS 1985, Adams 1987)
resulted in roads and bulldozer trails through the site (Adams 1987),
logging is not currently a threat to P. hirsuta (K. Fuller and D. Elam,
in litt. 1997), and the Forest Service has no activities planned in
this area that may pose a threat. Thirty years ago, the realignment of
Highway 3 impacted part of this occurrence (Sharon Stacey, California
Department of Transportation (Caltrans), pers. comm. 1996). The area
has since been designated by Caltrans as an Environmentally Sensitive
Area (S. Stacey, pers. comm. 1998), which provides limited protection
in that it requires acknowledgment of a sensitive species occurrence in
project planning. Although road maintenance crews are to be made aware
that no new ground is to be disturbed along this stretch of highway
(Bob Sheffield, Caltrans, pers. comm. 1997), the portion of the
occurrence within the Caltrans right-of-way could be disturbed by road
maintenance (Charlotte Bowen, Caltrans, in litt. 1991). The area within
the right-of-way consists of 5 small subpopulations with approximately
100 plants, occupying less than 0.8 hectare (2 acres) along 4
kilometers (2.5 miles) of the California State Highway 3. While
encroaching development has been considered to be a potential threat to
the plants occurring on private lands at the Highway 3 site (CNPS 1985;
CDFG 1986), the threat from development at this site does not appear
imminent.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Overutilization is not known to be a threat to Phlox hirsuta
although it has been suggested that the species may be of interest to
rock garden enthusiasts (CNPS 1977).
C. Disease or Predation
There is no known threat to Phlox hirsuta from disease. Parts of
the Highway 3 site have been grazed in the past, perhaps by trespass
cattle (CNPS 1985, Adams 1987). However, grazing is probably not a
threat to P. hirsuta at this time (K. Fuller and D. Elam, in litt.
1997).
D. The Inadequacy of Existing Regulatory Mechanisms
The State of California Fish and Game Commission has listed Phlox
hirsuta as an endangered species under the California Endangered
Species Act (CESA) (Chapter 1.5 Sec. 2050 et seq. of the California
Fish and Game Code and Title 14 California Code of Regulations 670.2).
Although the ``take'' of State-listed plants has long been prohibited
under the California Native Plant Protection Act (CNPPA), Chapter 10
Sec. 1908 and California Endangered Species Act, Chapter 1.5
Sec. 2080), in the past these statutes have not provided adequate
protection for such plants from the impacts of habitat modification or
land use change. For example, under the CNPPA, after the California
Department of Fish and Game notifies a landowner that a State-listed
plant grows on his or her property, the statute requires only that the
land owner notify the agency ``at least 10 days in advance of changing
the land use to allow salvage of such a plant'' (California Native
Plant Protection Act, Chapter 10 Sec. 1913). Under recent amendments to
CESA, a permit under Section 2081(b) of the California Fish and Game
Code is required to ``take'' State listed species incidental to
otherwise lawful activities. The amendments require that impacts to the
species be fully mitigated. However, these requirements have not been
tested and several years will be required to evaluate their
effectiveness. State lead agencies, such as Caltrans, are also required
to consult with the California Department of Fish and Game to ensure
that actions authorized, funded, or carried out by these agencies will
not jeopardize the continued existence of State-listed endangered or
threatened species (California Endangered Species Act, Chapter 1.5
Sec. 2090). However, according to the California Environmental Quality
Act (CEQA), which requires full disclosure of potential environmental
impacts of proposed projects, protection of State-listed species is
dependent upon the discretion of the lead agency involved, and projects
may be approved that cause significant environmental damage, such as
loss of sites supporting State-listed species. Mitigation requirements
are optional, and are at the discretion of the lead agency. When
mitigation plans are required, they often involve transplantation of
the plant species to an existing or artificially created habitat,
followed by destruction of the original site. Therefore, if the
mitigation effort fails, the resource has already been lost. Further,
CEQA does not guarantee that such conservation efforts will be
implemented. In addition, the CEQA guidelines are being proposed for
revisions that, if made final, may weaken protections for threatened,
endangered, and other sensitive species (U.S. Department of Interior,
in litt. 1997). Final CEQA guidelines are forthcoming.
In order to proceed with development of private and City of Yreka
lands where Phlox hirsuta grows, the City of Yreka would require
California Environmental Quality Act (CEQA) review (L. Bacon, pers.
comm. 1997). The California Environmental Quality Act requires a full
disclosure of the potential environmental impacts of proposed projects.
The public agency with primary authority or jurisdiction over the
project is designated as the lead agency and is responsible for
conducting a review of the project and consulting with the other
agencies concerned with the resources affected by the project. Section
15065 of the California Environmental Quality Act Guidelines requires a
finding of significance if a project has the potential to ``reduce the
number or restrict the range of a rare or endangered plant or animal.''
Species that are eligible for listing as rare, threatened, or
endangered but are not so listed are given the same protection as those
species that are officially listed with the State or Federal
governments. Once significant effects are identified, the lead agency
has the option to require mitigation for effects through changes in the
project or to decide that overriding considerations make mitigation
infeasible. In the latter case, projects that cause significant
environmental damage, such as destruction of endangered species, may be
approved. Protection of listed species through the California
Environmental Quality Act is, therefore, dependent upon the discretion
of the agency involved.
E. Other Natural or Manmade Factors Affecting its Continued Existence
Phlox hirsuta is known from only two small occurrences, which
occupy fewer than 121 hectares (300 acres) in a restricted habitat type
(serpentine soils) over a very small range (approximately 65 square
kilometers (25 square miles)). The combination of only two populations,
small range, and restricted habitat makes the species highly
susceptible to extinction or extirpation from a significant portion of
its range due to random events such as fire, drought, disease, or other
occurrences (Shaffer 1981, 1987; Meffe and Carroll 1994). Such events
are not usually a concern until the number of populations or geographic
distribution become severely limited, as is the case with the species
discussed here. Once the number of populations or the plant population
size is reduced, the remnant populations, or portions of populations,
have a higher probability of extinction from random events (Primack
1993).
[[Page 15823]]
The Fish and Wildlife Service has carefully assessed the best
scientific and commercial information available regarding the past,
present, and future threats faced by Phlox hirsuta in determining to
propose this rule. Urbanization, inadequate State regulatory
mechanisms, and extirpation from random events due to the small number
of populations and small range of the species threaten P. hirsuta. The
two occurrences of P. hirsuta total fewer than 121 hectares (300 acres)
of occupied habitat in the vicinity of the City of Yreka, Siskiyou
County, California. The site within the City of Yreka is already
subdivided, has been disturbed by activities associated with
urbanization in the past, is situated in an area that is suitable for
development, and is unprotected from this threat. In addition, both
occurrences are at risk due to inadequate State regulatory mechanisms
and due to potential extirpation of all or part of the occurrences due
to random events. Therefore, the preferred action is to list P. hirsuta
as endangered.
Alternatives to listing were considered before publication of this
proposed rule. The other alternatives were not preferred because they
would not provide adequate protection and would not be consistent with
the Act. Listing Phlox hirsuta as endangered would provide Federal
protection for the species and result in additional protection as
outlined under the Available Conservation Measures section.
Critical Habitat
Critical habitat is defined in section 3 of the Act as--(i) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with section 4 of 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 consideration or protection, and; (ii) specific areas
outside the geographical area occupied by a species at the time it is
listed, upon determination that such areas are essential for the
conservation of the species. ``Conservation'' as it is 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 implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary designate critical habitat at the time
the species is listed. Fish and Wildlife Service regulations (50 CFR
424.12(a)(1)) state that designation of critical habitat is not prudent
when one or both of the following situations exist--(1) The species is
threatened by taking or other human activity, and identification of
critical habitat can be expected to increase the degree of threat to
the species, or (2) such designation of critical habitat would not be
beneficial to the species.
Critical habitat receives consideration under section 7 of the Act
with regard to actions carried out, authorized, or funded by a Federal
agency. Federal involvement is most likely in two situations--(1) where
the species occurs on Federal lands and (2) when a Federal agency is
involved in authorizing or funding actions on non-Federal lands. Under
section 7 of the Act, Federal agencies are required to ensure that
their actions do not jeopardize the continued existence of a species or
result in adverse modification of critical habitat. However, both
jeopardizing the continued existence of a species and adverse
modification of critical habitat have similar standards, and thus
similar thresholds for violation of section 7 of the Act.
The Fish and Wildlife Service finds that designation of critical
habitat is not prudent for Phlox hirsuta as it would provide no
additional benefit to the species beyond listing. There are only two
known sites of P. hirsuta. No other sites containing P. hirsuta have
been identified, and no historic locations are known (CNDDB 1997). One
site sits on both City of Yreka and private lands, and the other site
is partially on private land, partially on Caltrans right-of-way, and
partially on Klamath National Forest land. Designation of critical
habitat may affect non-Federal lands only where a Federal nexus exists,
such as 404 permitting under the Clean Water Act. As it is an upland
species facing the threat of private development, the designation of
critical habitat on private or State lands provides no additional
benefit for P. hirsuta over that provided as a result of listing since
there are no Federal nexus actions taking place. Furthermore, due to
the limited distribution of P. hirsuta, any action that would adversely
modify critical habitat would also jeopardize the species. Critical
habitat designation for known populations on private lands and the City
of Yreka lands would confer no benefit beyond that of listing as there
is no Federal nexus, and potentially could present significant threats
to the species' continued existence. The publication of maps and
precise locations of plant occurrences could contribute to the further
decline of the species by facilitating trespassing and hindering
recovery efforts.
The other site is on a mixture of a Caltrans right-of-way, private
lands and Klamath National Forest land. Section 7 of the Act requires
that Federal agencies refrain from contributing to the destruction or
adverse modification of critical habitat or jeopardizing the continued
existence of a listed species. Designation of critical habitat would
provide no benefit where the P. hirsuta occurs on Federal land or
Caltrans right-of-way because any adverse modification of the occupied
habitat would likely jeopardize the continued existence of the species.
Additionally, modification of habitat is unlikely to occur without
consultation under section 7 of the Act because the presence of P.
hirsuta, and its specific locations, are known to the managers of the
Klamath National Forest (K. Fuller and D. Elam, in litt. 1997) and to
Caltrans personnel (S. Stacey, pers. comm. 1996, 1998). Protection of
the habitat of Phlox hirsuta will be addressed through the section 4
recovery process and the section 7 consultation process. For the
reasons discussed above, the Fish and Wildlife Service finds that the
designation of critical habitat for P. hirsuta is not prudent.
Available Conservation Measures
Conservation measures provided to species listed as endangered
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 and with respect to its critical habitat, if any
is being designated. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with the
Fish and Wildlife Service on any action that is likely to jeopardize
the continued existence of a proposed species or result
[[Page 15824]]
in destruction or adverse modification of proposed critical habitat. If
a species is subsequently listed, section 7(a)(2) requires Federal
agencies to ensure that activities they authorize, fund, or carry out
are not likely to jeopardize the continued existence of such a species
or to destroy or adversely modify its critical habitat. If a Federal
action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into formal consultation with the
Fish and Wildlife Service.
Listing Phlox hirsuta would provide for development of a recovery
plan for the species. The plan would bring together both State and
Federal efforts for conservation of the species. The plan would
establish a framework for agencies, local government, and private
interests to coordinate activities and cooperate with each other in
conservation efforts. The plan would set recovery priorities and
estimate costs of various tasks necessary to accomplish them. The plan
also would describe management actions necessary to achieve
conservation and survival of P. hirsuta. Additionally, pursuant to
section 6 of the Act, the Fish and Wildlife Service would be able to
grant funds to an affected State for management actions promoting the
protection and recovery of the species.
Federal activities potentially affecting Phlox hirsuta include
issuance of special use permits and rights-of-ways. Approximately one-
half of the Highway 3 occurrence of Phlox hirsuta occurs on lands
managed by the U.S. Forest Service. The U.S. Forest Service would be
required to consult with the U.S. Fish and Wildlife Service if any
activities authorized, funded, or carried out by the U.S. Forest
Service may affect P. hirsuta, for example, road maintenance and right-
of-way authorizations for projects that include adjacent or intermixed
private land. The Forest Service has been contacted regarding the
presence of P. hirsuta, and has no planned activities that would
require initiating consultation procedures.
Other Federal agencies that may become involved if this rule is
finalized include the Federal Highways Administration through funding
provided to Caltrans. In addition, Federal involvement may occur when
the Fish and Wildlife Service issues permits for habitat conservation
plans (HCPs) prepared by non-Federal parties.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered
plants. All prohibitions of section 9(a)(2) of the Act, implemented by
50 CFR 17.61 for endangered plants, apply. These prohibitions, in part,
make it illegal for any person subject to the jurisdiction of the
United States to import or export any of the plants, transport or ship
them in interstate or foreign commerce in the course of a commercial
activity; sell or offer them for sale in interstate or foreign
commerce; or remove and reduce any of the plants to possession from
areas under Federal jurisdiction. In addition, the Act prohibits the
malicious damage or destruction of endangered plants from areas under
Federal jurisdiction, and the removal, cutting, digging up, or damaging
or destroying of such plants in knowing violation of any State law or
regulation, including State criminal trespass law. Certain exceptions
to the prohibitions apply to agents of the Fish and Wildlife Service
and State conservation agencies.
It is the policy of the Fish and Wildlife Service, published in the
Federal Register (59 FR 34272) on July 1, 1994, to identify to the
maximum extent practicable at the time a species is listed those
activities that would or would not constitute a violation of section 9
of the Act. The intent of this policy is to increase public awareness
of the effect of the listing on proposed and ongoing activities within
a species' range. One of the two occurrences of Phlox hirsuta is on
U.S. Forest Service lands. Section 9 of the Act prohibits removal and
malicious damage or destruction of endangered plants on Federal lands.
However, actions funded, authorized or implemented by a Federal agency
that could result in the removal or destruction of such species on
Federal lands, would not be in violation of the Act, provided the
actions would not likely result in jeopardy to the species. The removal
and reduction to possession of listed species on Federal lands for
research activities may be authorized by the Fish and Wildlife Service
under section 10(a)(1)(A) of the Act (see below). Activities that do
not involve any Federal agency funding or authorization on private
lands do not violate section 9 of the Act, unless such activities are
carried out in knowing violation of State law or regulation or in the
course of any violation of a State criminal trespass law. Moderate
activities such as construction of fences, livestock-water ponds, and
livestock grazing would not constitute a violation of section 9.
Questions regarding whether specific activities will constitute a
violation of section 9 should be directed to the Field Supervisor of
the Service's Sacramento Fish and Wildlife Office (see ADDRESSES
section).
The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of
permits to carry out otherwise prohibited activities involving
endangered plant species under certain circumstances. Permits are
available for scientific purposes and to enhance the propagation or
survival of the species. Requests for copies of the regulations on
listed plants and inquiries regarding them may be addressed to U.S.
Fish and Wildlife Service, Ecological Services, Endangered Species
Permits, 911 NE 11th Avenue, Portland, Oregon 97232-4181; telephone
503/231-2063 or FAX 503/231-6243. Information collections associated
with these permits are approved under the Paperwork Reduction Act, 44
U.S.C. 3501 et seq., and assigned Office of Management and Budget
ordanance number 1018-0094. For additional information concerning these
permits and associated requirements, see 50 CFR 17.22.
Public Comments Solicited
The Fish and Wildlife Service intends that any final action
resulting from this proposal will be as accurate and as effective as
possible. Therefore, comments or suggestions from the public, other
concerned governmental agencies, the scientific community, industry, or
any other interested party concerning this proposed rule are hereby
solicited. The Fish and Wildlife Service will follow its current peer
review policy (59 FR 34270) in the processing of this rule. Comments
particularly are sought concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threat (or lack thereof) to Phlox hirsuta;
(2) The location of any additional populations of this species and
the reasons why any habitat should or should not be determined to be
critical habitat as provided by section 4 of the Act;
(3) Additional information concerning the range, distribution, and
population size of this species; and
(4) Current or planned activities in the subject area and their
possible impacts on this species.
Any final decision on this proposal will take into consideration
the comments and any additional information received by the Fish and
Wildlife Service, and such communications may lead to a final
regulation that differs from this proposal.
The Act provides for a public hearing on this proposal, if
requested. Requests must be received within 45 days of the date of
publication of the proposal. Such requests must be made in writing and
addressed to the Field Supervisor, U. S. Fish and Wildlife Service,
3310 El
[[Page 15825]]
Camino Avenue, Suite 130, Sacramento, CA 95821-6340.
National Environmental Policy Act
The Fish and Wildlife Service has determined that an Environmental
Assessment, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with regulations adopted pursuant to section 4(a) of the Act. A notice
outlining the Service's reasons for this determination was published in
the Federal Register on October 25, 1983 (48 FR 49244).
Required Determinations
The Service has examined this regulation under the Paperwork
Reduction Act of 1995 and found it to contain no information collection
requirements.
References Cited
A complete list of all references cited herein is available upon
request from the Field Supervisor, Sacramento Fish and Wildlife Office
(see ADDRESSES section).
Author
The primary author of this proposed rule is Diane Elam, U.S. Fish
and Wildlife Service, Sacramento Fish and Wildlife Office (see
ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
record keeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, the Fish and Wildlife Service hereby proposes to amend
part 17, subchapter B of chapter I, title 50 of the Code of Federal
Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. Amend Section 17.12(h) by adding the following, in alphabetical
order under FLOWERING PLANTS, to the List of Endangered and Threatened
Plants to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Phlox hirsuta.................... Yreka phlox......... U.S.A. (CA)........ Polemoniaceae...... E NA NA
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: March 17, 1998.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-8516 Filed 3-31-98; 8:45 am]
BILLING CODE 4310-55-P
