[Federal Register Volume 64, Number 101 (Wednesday, May 26, 1999)]
[Rules and Regulations]
[Pages 28393-28403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13249]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AE52
Endangered and Threatened Wildlife and Plants; Threatened Status
for the Plant Thelypodium howellii ssp. spectabilis (Howell's
spectacular thelypody)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service) determine
threatened status pursuant to the Endangered Species Act of 1973, as
amended (Act), for Thelypodium howellii ssp. spectabilis (Howell's
spectacular thelypody). Thelypodium howellii ssp. spectabilis is known
from 11 sites in Baker and Union counties, Oregon. This taxon is
threatened by a variety of factors including habitat destruction and
fragmentation from agricultural and urban development, grazing by
domestic livestock, competition from non-native vegetation, and
alterations of wetland hydrology. This rule implements the Federal
protection and recovery provisions afforded by the Act for the plant.
EFFECTIVE DATE: June 25, 1999.
ADDRESSES: The complete file for this rule is available for public
inspection, by appointment, during normal business hours at the U.S.
Fish and Wildlife Service, Snake River Basin Office, 1387 S. Vinnell
Way, Room 368, Boise, Idaho 83709.
FOR FURTHER INFORMATION CONTACT: Robert Ruesink, Field Supervisor (see
ADDRESSES section) (telephone 208/378-5243; facsimile 208/378-5262).
SUPPLEMENTARY INFORMATION:
Background
Thelypodium howellii ssp. spectabilis is a herbaceous biennial that
occurs in moist, alkaline meadow habitats at approximately 1,000 meters
(m) (3,000 feet (ft)) to 1,100 m (3,500 ft) elevation in northeast
Oregon. The plant is currently known from 11 sites (5 populations)
ranging in size from 0.01 hectares (ha) (0.03 acres (ac)) to 16.8 ha
(41.4 ac) in the Baker-Powder River valley in Baker and Union counties.
The total occupied habitat for this species is approximately 40 ha (100
ac). Plants at the type locality in Malheur County have not been
relocated since 1927 and are considered to be extirpated (Kagan 1986).
The entire extant range of this taxon lies within a 21 kilometer (km)
(13 mile (mi)) radius of Haines, Oregon.
Due to its relatively low elevation and rich soils, agriculture is
the primary land use in the Baker-Powder River Valley region, which
contains the 11 extant T. howellii ssp. spectabilis sites. The region
is bordered on the west by the Elkhorn Mountains and on the east by the
Wallowa Mountains (Kagan 1986). Annual precipitation for the Baker
Valley averages 27 centimeters (cm) (10.6 inches (in)), most falling as
snow in winter. Weather patterns follow the interior continental
weather systems with little maritime influence. Winters are cold, and
summers are warm and dry (Larkin and Salzer 1992).
Thelypodium howellii ssp. spectabilis grows to approximately 60 cm
(2 ft) tall, with branches arising from near the base of the stem. The
basal leaves are approximately 5 cm (2 in) long with wavy edges and are
arranged in a rosette. Stem leaves are shorter, narrow, and have smooth
edges. Flowers appear in loose spikes at the ends of the stems. Flowers
have four purple petals approximately 1.9 cm (0.75 in) in length, each
of which is borne on a short (0.6 cm (0.25 in)) stalk. Fruits are long,
slender pods (Greenleaf 1980, Kagan 1986).
This taxon was thought to be extinct until rediscovered by Kagan in
1980 near North Powder (Kagan 1986). The 11 recently discovered sites
containing T. howellii ssp. spectabilis are located near the
communities of North Powder, Haines, and Baker. The North Powder T.
howellii ssp. spectabilis population contains five sites; the largest
is subject to a conservation easement (16.8 ha (41.4 ac)). Until
recently, one site near the town of North Powder, less than 0.8 ha (2.3
ac) in size, had a plant protection agreement between the landowner and
The Nature Conservancy. The Haines plant population currently consists
of three small sites located in or near the town of Haines. Since the
publication of the proposed rule, an additional site in Haines was
identified (B. Russell, consultant, in litt. 1998) and one previously
known site in Haines was apparently extirpated by development (P.
Brooks, Forest Service, in litt. 1998). A 0.7 ha (1.8 ac) site west of
Baker is within a 8 ha (20 ac) pasture adjacent to a road. Another site
north of Baker (0.03 ha (0.08 ac)) exists in a small remnant of meadow
habitat surrounded by farmland. One site approximately 8 km (5 mi)
north of North Powder is located on private land at Clover Creek (Kagan
1986, Oregon Natural Heritage Program (ONHP) 1998).
Thelypodium howellii var. spectabilis was first described by Peck
in 1932 (Peck 1932) from a specimen collected in 1927 near Ironside,
Oregon (Malheur County). In 1973, Al-Shehbaz revised the genus and
elevated the variety to subspecies status (Al-Shehbaz 1973). This taxon
has larger petals than T. howellii ssp. howellii, and the paired
filaments are not united (Al-Shehbaz 1973, Kagan 1986, Antell 1990). In
addition, although both taxa occur in eastern Oregon, their habitats do
not overlap (Kagan 1986). For purposes of this final rule, T. howellii
ssp. spectabilis is recognized as a subspecies because of the taxonomic
distinction made in 1973 (Al-Shehbaz 1973), although the plant was
treated as a variety in the candidate assessment process (see
``Previous Federal Action'' section).
Thelypodium howellii ssp. spectabilis occurs in wet alkaline
meadows in valley bottoms, usually in and around woody shrubs that
dominate the habitat on the knolls and along the edge of the wet meadow
habitat between the knolls. Associated species include Sarcobatus
vermiculatus (greasewood), Distichlis stricta (alkali saltgrass),
Elymus cinereus (giant wild rye), Spartina gracilis (alkali cordgrass),
and Poa juncifolia (alkali bluegrass) (Kagan 1986). Soils are pluvial-
deposited alkaline clays mixed with recent alluvial silts, and are
moderately well-drained (Kagan 1986).
Thelypodium howellii ssp. spectabilis may be dependent on periodic
flooding since it appears to rapidly colonize areas adjacent to streams
that have flooded (Kagan 1986). In addition, this taxon does not
compete well with
[[Page 28394]]
encroaching weedy vegetation such as Dipsacus sylvestris (teasel)
(Davis and Youtie 1995).
Previous Federal Action
Federal government actions for the plant began as a result of
section 12 of the 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 Thelypodium howellii var. spectabilis as
a threatened species. We published a notice in the July 1, 1975,
Federal Register (40 FR 27823) of our acceptance of the Smithsonian
Institution report 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
our 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, we 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 Service in response to House Document No. 94-51 and the July 1,
1975, Federal Register publication. Thelypodium howellii var.
spectabilis was not included in the June 16, 1976, Federal Register
document.
We published an updated notice of review for plants on December 15,
1980 (45 FR 82480). This notice included Thelypodium howellii var.
spectabilis as a category 1 candidate. Category 1 candidates were those
for which the Service had sufficient information on biological
vulnerability and threats to support proposals to list them as
endangered or threatened species. This designation for T. howellii var.
spectabilis was retained in the November 28, 1983, supplement to the
Notice of Review (48 FR 53640), as well as subsequent revisions on
September 27, 1985 (50 FR 39526), February 21, 1990 (55 FR 6184), and
September 30, 1993 (50 FR 51143). Upon publication of the February 28,
1996 Notice of Review (61 FR 7596), we ceased using category
designations and included T. howellii var. spectabilis as a candidate
species. Candidate species are those for which the Service has on file
sufficient information on biological vulnerability and threats to
support proposals to list the species as threatened or endangered.
Section 4(b)(3)(B) of the Act requires the Secretary to make
findings on pending petitions that present substantial information
indicating the petitioned action may be warranted 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 Thelypodium
howellii var. spectabilis, because the 1975 Smithsonian report had been
accepted as a petition. On October 13, 1983, we 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 us to consider the petition as
having been resubmitted, pursuant to section 4(b)(3)(C)(I) of the Act.
The finding was reviewed annually in October of 1983 through 1996.
On January 13, 1998 (63 FR 1948), we published a proposal to list
Thelypodium howellii ssp. spectabilis as a threatened species. We now
determine T. howellii ssp. spectabilis to be a threatened species with
the publication of this final rule.
The processing of this final rule conforms with our Listing
Priority Guidance published in the Federal Register on May 8, 1998 (63
FR 25502). The guidance clarifies the order in which we will process
rulemakings. Highest priority is processing emergency listing rules for
any species determined to face a significant and imminent risk to its
well being (Tier 1). Second priority (Tier 2) is processing final
determinations on proposed additions to the lists of endangered and
threatened wildlife and plants; the processing of new proposals to add
species to the lists; the processing of administrative petition
findings to add species to the lists, delist species, or reclassify
listed species (petitions filed under section 4 of the Act); and a
limited number of delisting and reclassifying actions. Processing of
proposed or final designations of critical habitat is accorded the
lowest priority (Tier 3). This final rule is a Tier 2 action and is
being completed in accordance with the current Listing Priority
Guidance. We have updated this rule to reflect any changes in
information concerning distribution, status and threats since the
publication of the proposed rule.
Summary of Comments and Recommendations
In the January 13, 1998, proposed rule (63 FR 1948) and associated
notifications, all interested parties were requested to submit factual
reports or information that might contribute to the development of a
final rule. The comment period was approximately three months long and
closed on April 20, 1998. Appropriate State agencies, County
governments, Federal agencies, scientific organizations, and other
interested parties were contacted and requested to comment. A request
for a public hearing was received from Rod Dowse of the Oregon
Cattlemen's Association. On March 5, 1998, we published a notice in the
Federal Register (63 FR 10817) announcing the public hearing and the
extension of the public comment period until April 20, 1998. A notice
announcing the public hearing and proposal was published in the Baker
City Herald on February 24, 1998. We conducted a public hearing on
April 9, 1998, at the Geiser Grand Hotel in Baker City, Oregon.
Testimony was taken from 6 p.m. to 8 p.m. Four parties provided
testimony.
During the public comment period, we received written and oral
comments from ten parties. Four commenters expressed support for the
listing proposal, three commenters opposed the proposal, and three were
neutral. Written comments and oral statements obtained during the
public hearing and comment period are combined in the following
discussion. Opposing comments and other comments questioning the rule
were organized into specific issues. These issues and our response to
each are summarized as follows:
Issue 1: The Service should conduct additional surveys for
Thelypodium howellii ssp. spectabilis in Baker, Union, and Malheur
counties to clarify its distribution and abundance. A few commenters
believed that T. howellii ssp. spectabilis may be more widespread, and
that further surveys were needed before listing.
Service response: We used information provided by the Oregon
Natural Heritage Program and other knowledgeable botanists to evaluate
the status of T. howellii ssp. spectabilis. Information from botanical
collections that date from the 1920's was also utilized in the
preparation of the proposed rule. The type locality in Malheur County
has been resurveyed by numerous botanists over the past two decades,
and T. howellii ssp. spectabilis has not been relocated. Recent surveys
in Malheur County conducted by staff
[[Page 28395]]
from the Service (E. Rey-Vizgirdas, Service botanist, in litt. 1998)
and Bureau of Land Management (J. Findlay, Bureau of Land Management,
pers. comm. 1998) have also failed to locate additional sites or
populations.
Only one commenter provided information on a T. howellii ssp.
spectabilis site that was not specifically mentioned in the proposed
rule (B. Russell, in litt. 1998). This site, located on private land in
Haines, Oregon, is within \1/2\ mile of other sites containing this
species and is subject to similar threats as the populations discussed
in the proposed rule. Although T. howellii ssp. spectabilis populations
vary in size from year to year and new populations may be found in the
future, similar threats are likely to apply to any newly discovered
populations. In summary, no data were provided to substantiate the
claim that T. howellii ssp. spectabilis is more widespread than
previously described in the proposed rule.
Issue 2: Several commenters believed that more information was
needed on the life history of T. howellii ssp. spectabilis. Some asked
for further clarification on its habitat and growth requirements. One
commenter claimed that this taxon may be a weed, similar to other
noxious weeds in the mustard family. Another asked whether T. howellii
ssp. spectabilis could be transplanted or propagated.
Service response: Although several widespread members of the
mustard family such as whitetop (Cardaria draba), blue mustard
(Chorispora tenella), and tumble mustard (Sisymbrium altissimum) are
considered to be noxious weeds, no species of Thelypodium are known to
be noxious weeds in the western United States (Whitson et al. 1996).
In some cases, transplanting or propagating rare plants is
essential to recovery. However, we believe that the protection of
existing habitat for T. howellii ssp. spectabilis is critical to the
long-term conservation of this species. We will consider the
feasibility of propagating individuals or establishing additional
populations of T. howellii ssp. spectabilis during the development of a
recovery plan for this species. Additional information on the life
history and growth requirements of T. howellii ssp. spectabilis also
will be gathered during the recovery process.
Issue 3: Several commenters questioned the effects of activities
such as grazing, altered hydrology, and agriculture on T. howellii ssp.
spectabilis. One commenter wondered if other plant species have
outcompeted T. howellii ssp. spectabilis in areas where hydrologic
conditions have changed. Another commenter stated that habitat for T.
howellii ssp. spectabilis has been highly altered by changes in natural
wetland hydrology, and that such hydrologic changes may not be
restorable. A few commenters stated that disturbance may actually be
beneficial for T. howellii ssp. spectabilis. One commenter believed
that grazing management is appropriate for habitat conditions in
eastern Oregon, and that grazing is not a threat to T. howellii ssp.
spectabilis. In addition, the effects of livestock on this taxon are
not well known. Some commenters stated that T. howellii ssp.
spectabilis is not threatened by agriculture because it occurs on land
not suitable for farming.
Service response: Only one population of T. howellii ssp.
spectabilis occurs on land that may be managed for the long-term
protection of this species (a permanent conservation easement on
private land near North Powder, Oregon). All remaining T. howellii ssp.
spectabilis sites in Baker and Union counties are subject to a variety
of threats including development, road construction projects and
maintenance, trampling, recreational activities, and the invasion of
exotic plant species.
The Service agrees that appropriate grazing management may be
suitable for maintaining general habitat conditions and forage species
in Baker and Union counties. However, the impact of livestock grazing
on rare plant species is influenced by factors including the season and
magnitude of grazing. In some cases, grazing effects can be neutral or
even beneficial if grazing is managed to minimize impacts such as
trampling or compaction. As described in the ``Summary of Factors
Affecting the Species'' section, we believe that grazing of T. howellii
ssp. spectabilis during the active growing season can adversely impact
the reproduction of this species. Reproduction by seed is necessary for
the survival of annual and biennial plant species such as T. howellii
ssp. spectabilis. Because T. howellii ssp. spectabilis is palatable to
livestock, grazing in occupied habitat prior to seed maturation and
dispersal can result in lower seed set and fewer seedlings of T.
howellii ssp. spectabilis.
Changes in hydrology or soil conditions often result in changes in
the abundance and distribution of plant species. At several sites
containing T. howellii ssp. spectabilis near Baker City and North
Powder, T. howellii ssp. spectabilis plants are located adjacent to,
but not within areas dominated by wetland plant species such as
cattails (Typha spp.), sedges (Carex spp.), water hemlock (Cicuta
douglasii), and teasel (Dipsacus sylvestris). Although it is not known
whether these species have actually displaced T. howellii ssp.
spectabilis, it is unlikely that T. howellii ssp. spectabilis can
persist in areas where the hydrologic conditions are not favorable or
in areas dominated by exotic species.
Although remaining sites supporting T. howellii ssp. spectabilis
may not be directly threatened by agricultural conversion, indirect
effects of agriculture include habitat fragmentation, changes in local
hydrologic conditions, and the use of herbicides and pesticides (which
may impact pollinator populations). Because all known T. howellii ssp.
spectabilis sites have been invaded at least to some extent by noxious
weeds such as teasel and thistles (Cirsium spp.). As a result, T.
howellii ssp. spectabilis is particularly vulnerable to herbicide use.
Issue 4: One commenter questioned the accuracy of population data
for T. howellii ssp. spectabilis presented in the proposed rule, and
further believed that information based on ``ocular estimates'' of
population size should not be used.
Service response: We acknowledge that careful collection of
population data (e.g., numbers of plants and population trends) can be
useful to identify problems such as poor reproduction and lack of
recruitment of new individuals into the population. However, like most
annual plants, the population size of biennial plant species such as T.
howellii ssp. spectabilis can vary greatly from year to year. We do not
rely solely on population information, but consider threats to the
species as outlined under the ``Summary of Factors Affecting the
Species'' section of all proposed and final listing rules. These
factors are discussed in detail for this species in the ``Summary of
Factors Affecting the Species'' section of this final rule.
Issue 5: One commenter felt that T. howellii ssp. spectabilis
should be listed as endangered rather than threatened due to the
limited number of sites and threats to its habitat, and believed that
T. howellii ssp. spectabilis is not likely to persist in small habitat
areas. Another commenter stated that although the population of T.
howellii ssp. spectabilis fluctuates from year to year, eight T.
howellii ssp. spectabilis sites that have been monitored since the
1980's appear to be declining. Two commenters provided information
about a proposed race track development project near Haines, stating
that this project, if implemented, could damage habitat for T. howellii
ssp. spectabilis, and that the land may be zoned for industrial
purposes. One commenter provided information on a population of T.
[[Page 28396]]
howellii ssp. spectabilis in Haines that occurs directly adjacent to a
proposed highway improvement project. This commenter further stated
that, as of June 1997, at least two lots in Haines that contained T.
howellii ssp. spectabilis were for sale.
Service response: We acknowledge that T. howellii ssp. spectabilis
sites located within or adjacent to the City of Haines are threatened
by isolation, development, and other activities, as described in the
``Summary of Factors Affecting the Species'' section.
However, we believe that the site supporting the largest habitat
area (located near North Powder) can be managed for the long-term
protection of this species. In addition, at least three other sites
containing T. howellii ssp. spectabilis (including the second largest
habitat area at Clover Creek) are not currently threatened by
development. We will continue to work with willing landowners and
State, local, and Federal agencies to ensure that grazing and other
activities are managed to reduce impacts to this species and its
habitat. The species is not in imminent danger of extinction. Thus, the
listing as threatened rather than endangered is appropriate.
Issue 6: One commenter stated that T. howellii ssp. spectabilis
should not be listed because economic impacts have not been considered.
Service response: In accordance with 16 U.S.C., paragraph 1533
(b)(1)(A), 50 CFR 424.11(b), and section 4(b)(1)(A) of the Act, listing
decisions are made solely on the basis of the best available scientific
and commercial data. Economic impacts cannot be considered when
determining whether to list a species under the Act.
Issue 7: One commenter stated that the Service should not list T.
howellii ssp. spectabilis because it has no authority to list or
regulate species under the Act that are not involved in interstate
commerce. This commenter further believed that Federal listing for T.
howellii ssp. spectabilis is unnecessary since it would not confer
greater protection for this species than Oregon's Endangered Species
Act already provides.
Service response: The Federal government has the authority under
the Commerce Clause of the U.S. Constitution to protect this species
for the reasons given in Judge Wald's opinion and Judge Henderson's
concurring opinion in National Association of Home Builders v. Babbitt,
130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 1185 S. Ct. 2340 (1998).
That case involved a challenge to application of the Act prohibitions
to protect the listed Delhi Sands flower-loving fly. As with T.
howellii ssp. spectabilis, the Delhi Sands flower-loving fly is endemic
to only one state. Judge Wald held that application of the Act's
prohibitions against taking of endangered species to this fly was a
proper exercise of Commerce Clause power to regulate: (1) use of
channels of interstate commerce; and (2) activities substantially
affecting interstate commerce because it prevented loss of biodiversity
and destructive interstate competition. Judge Henderson upheld
protection of the fly because doing so prevents harm to the development
that is part of interstate commerce.
We believe that the Federal government has the authority under the
Property Clause of the Constitution to protect this species. While T.
howellii ssp. spectabilis is not known to occur on Federal land, it is
clear that the species is part of an ecosystem that includes Federal
lands. Baker and Union counties contain a significant amount of Federal
land administered by the U.S. Forest Service and the Bureau of Land
Management. Native species such as mule deer range widely across these
lands, and are known to graze on T. howellii ssp. spectabilis . The
courts have long recognized Federal authority under the Property Clause
to protect Federal resources in such circumstances. See, e.g., Kleppe
v. New Mexico, 429 U.S. 873 (1976); United States v. Alford, 274 U.S.
264 (1927); Camfield v. United States, 167 U.S. 518 (1897); United
States v. Lindsey, 595 F.2d 5 (9th Cir. 1979).
As for whether Federal listing of T. howellii ssp. spectabilis
would confer more protection than is already provided under Oregon law,
the inadequacy of the State law is discussed below in Section D of the
``Summary of Factors Affecting the Species'' section of this rule.
Peer Review
In accordance with interagency policy published on July 1, 1994 (59
FR 34270), we solicited the expert opinions of three independent
specialists regarding pertinent scientific or commercial data and
assumptions relating to the taxonomy, population status, and supportive
biological and ecological information for the taxon under consideration
for listing. The purpose of such review is to ensure that listing
decisions are based on scientifically sound data, assumptions, and
analyses, including input of appropriate experts and specialists. Two
scientists responded to our request for peer review of this listing
action. Both responders provided information which supported the
biological and ecological data presented in the proposed rule.
Summary of Factors Affecting the Species
Section 4 of the Endangered Species Act (16 U.S.C. 1533) and
regulations (50 CFR part 424) that implement the listing provisions of
the Act established the procedures for adding species to the Federal
lists. A species may be determined to be an endangered or threatened
species due to one or more of the five factors described in section
4(a)(1). These factors and their application to Thelypodium howellii
ssp. spectabilis are as follows:
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range.
Most of the habitat for T. howellii ssp. spectabilis has been
modified or lost to urban and agricultural development. Habitat
degradation at all remaining sites for this species is due to a
combination of livestock grazing, agricultural conversion, hydrological
modifications, and competition from non-native vegetation (see Factor
E). These activities have resulted in the extirpation of T. howellii
ssp. spectabilis from about half its former range in Baker, Union, and
Malheur counties. Plants at the type locality in Malheur County are
considered to be extirpated due to past agricultural development (Kagan
1986, ONHP 1998). Since 1990, at least 40 percent of the sites sampled
in North Powder that previously contained T. howellii ssp. spectabilis
have been extirpated (A. Robinson, Service botanist, in litt. 1996).
These sites were all located within areas subjected to grazing.
Grazing, trampling, exotic species, and agricultural activities
continue to threaten virtually all remaining habitat for this species
(Table 1).
[[Page 28397]]
Table 1.--Summary of Threats
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Hectares
Site (Population) (Acres) Number plants Ownership Threats
----------------------------------------------------------------------------------------------------------------
Clover Creek..................... 15.9 300 (Kagan 1986).... Private............. Livestock grazing,
(39.2) herbicides.
North Powder 2 (North Powder).... 0.9 16,000 (Salzer, in Private............. Non-native
(2.3) litt. 1996). vegetation.
Miles easement (North Powder).... 16.8 Greater than 2,500 Private (conserv. Livestock grazing,
(41.4) (Robinson, in litt. easement). hydrologic
1996). modifications.
Hot Creek east of I-85 (North 0.24 12 (Kagan, pers. Private (ODOT \1\).. Naturally occurring
Powder). (0.59) comm., 1995). events.
Hot Creek North (North Powder)... 0.01 10 (Robinson, in Private............. Livestock grazing,
(0.03) litt. 1996). naturally occurring
events.
Powder River (North Powder)...... 0.03 100 (Robinson, in Private (ODOT \1\).. Livestock grazing.
(0.07) litt. 1996).
Haines rodeo (Haines)............ 4.3 June 1998: 10,000; Private (ODOT \1\).. Urbanization,
(10.6) July 1998: 300 (E. mowing.
Rey-Vizgirdas, in
litt. 1998).
Haines water tower (Haines)...... 0.4 200 to 300 (E. Rey- Unknown (private)... Urbanization.
(1.0) Vizgirdas, in litt.
1998).
Haines west (Haines)............. Not Not available....... Private............. Urbanization, road
available construction,
herbicides.
Haines 4th and Olson (Haines).... 0.1 700 to 800 (E. Rey- Private............. Possibly extirpated
(0.3) Vizgirdas, in litt. (Brooks, in litt.
1998). 1998)
Baker City North................. 0.03 40 (Kagan, pers. Private............. Agricultural
(0.08) comm., 1995). conversion,
herbicides.
Pocahontas Road.................. 0.7 250 to 300 (E. Rey- Private............. Livestock grazing,
(1.8) Vizgirdas, in litt. non-native
1998). vegetation.
----------------------------------------------------------------------------------------------------------------
\1\ Oregon Department of Transportation Easement.
Within the City of Haines, all remaining habitat containing T.
howellii ssp. spectabilis is being impacted by residential
construction, trampling, and other activities. In 1994, a large section
of habitat formerly occupied by T. howellii ssp. spectabilis at the
Haines rodeo grounds was destroyed when a parking lot was constructed.
Although an estimated 5,000 to 10,000 T. howellii ssp. spectabilis
plants were present at the Haines rodeo grounds in late June 1998, the
majority of this population was subsequently impacted by the July 4 and
5 rodeo; the site was apparently mowed and used as a parking area
during the rodeo (E. Rey-Vizgirdas, in litt. 1998). Immediately after
the rodeo, fewer than 300 T. howellii ssp. spectabilis plants were
observed at the site. Most of these plants were found along the fence
line adjacent to the main road (outside the rodeo grounds). It is
possible that the T. howellii ssp. spectabilis population may recover
from this disturbance. However, it is unlikely that the entire
population was able to reproduce successfully prior to mowing since
most plants were in full bloom (without mature fruits) in late June (E.
Rey-Vizgirdas, in litt. 1998).
T. howellii ssp. spectabilis habitat within a proposed racing area
development project adjacent to the rodeo grounds, will likely be
impacted by the proposed project. However, since no specific T.
howellii ssp. spectabilis surveys have been completed for this project,
it is unclear how many T. howellii ssp. spectabilis plants will be
affected.
Another T. howellii ssp. spectabilis site in Haines, which
contained approximately 800 plants in June 1998 (E. Rey-Vizgirdas, in
litt. 1998), apparently was subsequently extirpated by residential
development (P. Brooks, in litt. 1998). Urbanization represents a major
threat for this species within the city limits of Haines.
Thelypodium howellii ssp. spectabilis is threatened by changes in
hydrology related primarily to historic and current land uses such as
agricultural conversion and flood control. Modifying the intensity and
frequency of flooding events and soil moisture levels can significantly
alter plant habitat suitability. If moisture levels stay high later in
the spring or summer, species such as sedges and rushes will outcompete
T. howellii ssp. spectabilis; if the soil becomes too saline,
Distichlis will outgrow T. howellii ssp. spectabilis (Davis and Youtie
1995). Irrigation practices in the vicinity of T. howellii ssp.
spectabilis habitat tend to increase soil moisture levels and can also
increase soil salinity (Davis and Youtie 1995), making the habitat less
suitable for this plant. Hydrological modifications occurred in at
least two sites containing this taxon in the vicinity of North Powder
(Davis and Youtie 1995; Robinson, in litt. 1996). In addition, it is
likely that natural hydrologic processes have been altered at all of
the existing sites due to surrounding land uses including agriculture
and residential/urban development.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
The plant is not a source for human food or of commercial
horticulture interest. Therefore, this is not a factor considered in
the listing decision at this time.
C. Disease or Predation
Thelypodium howellii ssp. spectabilis is palatable to livestock
(Kagan 1986, Davis and Youtie 1995). Cattle directly consume and
trample individual plants (Kagan 1986). Native herbivores (e.g. deer
(Odocoileus) and elk (Cervus)) likely consume T. howellii ssp.
spectabilis plants; however, there is little evidence to suggest that
herbivory by native ungulates currently poses a significant threat to
this taxon (Kagan 1986).
Livestock grazing can negatively impact habitat and contribute to
reduced reproduction of this species (Kagan 1986). In particular,
spring and early summer grazing adversely affects reproduction for T.
howellii ssp. spectabilis by removing flowers and/or
[[Page 28398]]
fruits, and individual plants get trampled during the period of active
growth (generally from May through July).
In July 1995, Berta Youtie (plant ecologist, The Nature
Conservancy) and Andrew Robinson (Service botanist, Oregon State
Office) found that cattle had consumed all T. howellii ssp. spectabilis
plants that were present within a pasture at Clover Creek; plants were
only observed in an adjacent area that was not subject to grazing. The
Clover Creek site (15.9 ha (39.2 ac)) supports the second largest
remaining plant habitat area.
At another site intentionally not grazed for the last five years,
T. howellii ssp. spectabilis plants have expanded into areas previously
unoccupied. Areas that were previously heavily grazed now contain
higher densities and larger plants than marginal refugia habitat
beneath Sarcobatus (Robinson, in litt. 1996). However, this site, while
under a permanent conservation easement, has been subjected to trespass
grazing on at least two occasions during the past three years (A.
Robinson, pers. comm., 1997).
D. The Inadequacy of Existing Regulatory Mechanisms
Thelypodium howellii ssp. spectabilis is listed as endangered by
the State of Oregon (Oregon Department of Agriculture). However, the
State Endangered Species Act does not provide protection for species on
private land. Therefore, under State law, in such cases, any plant
protection is at the discretion of the landowner.
The Oregon Department of Transportation (ODOT) currently considers
potential impacts to T. howellii ssp. spectabilis in their road
maintenance activities where it occurs at three sites that are
partially within ODOT rights-of-way. However, two of these sites are
less than 0.4 ha (1 ac) in size, and the third site (at Haines rodeo
ground) is threatened by activities that are not controlled by ODOT.
Thelypodium howellii ssp. spectabilis could potentially be affected
by projects requiring a permit under section 404 of the Clean Water
Act. Under section 404, the U.S. Army Corps of Engineers (Corps)
regulates the discharge of fill material into waters of the United
States including navigable and isolated water bodies, headwaters, and
adjacent wetlands. Section 404 regulations require applicants to obtain
an individual permit to place fill for projects affecting greater than
4 ha (10 ac) of waters of the U.S. Projects can qualify for
authorization under Nationwide Permit 26 (NWP 26) if the discharge does
not cause the loss of more than three acres of waters of the U.S. nor
cause the loss of waters of the U.S. for a distance greater than 500
linear feet of stream bed. Projects that qualify for authorization
under NWP 26 may proceed without prior notification to the Corps if the
discharge would cause the loss of less than \1/3\ of an acre of waters
of the U.S. (33 CFR 330. App. A 26b.). Evaluation of impacts of such
projects by the resource agencies through the section 404 process is
thus not an option. Corps Division and District Engineers may require
that an individual section 404 permit be obtained if projects otherwise
qualifying under NWP 26 would cause greater than minimal individual or
cumulative environmental impacts. Corps regulations implementing the
Clean Water Act require withholding authorization under NWP 26 if the
existence of a listed endangered or threatened species would be
jeopardized, regardless of the significance of the affected wetland
resources (33 CFR 330.4 (f)).
The Oregon Department of Fish and Wildlife (ODFW) was previously
designated as the easement manager of a wildlife area that contains
Thelypodium howellii ssp. spectabilis (Conservation Easement 1991). The
conservation easement was established by the Farm Services Agency to
protect a large wetland complex and related resources. However, a
preliminary draft management plan (ODFW 1996) for this site does not
adequately provide for the long-term maintenance of the plant and ODFW
is withdrawing as easement manager (J. Lauman, ODFW, in litt. 1996; M.
Smith, Service biologist, Oregon State Office, pers. comm. 1998). A new
easement manager for the site has not been designated. Development of a
final management plan for the site, which may better address concerns
regarding the viability of this species (e.g., potential hydrological
modifications of existing habitat), has not yet been initiated. In
addition, although this site is under a conservation easement, trespass
grazing by cattle has occurred on at least two occasions in the last
three years and continues to threaten T. howellii ssp. spectabilis
habitat onsite.
One T. howellii ssp. spectabilis site had a plant protection
agreement between the landowner and The Nature Conservancy. However,
the agreement has expired and the amount of occupied habitat (less than
0.5 ha (1 ac)) onsite is not expected to provide for the long-term
viability of the species in the absence of intensive management (B.
Youtie, The Nature Conservancy, pers. comm., 1998).
E. Other Natural or Manmade Factors Affecting Its Continued Existence
Mowing of T. howellii ssp. spectabilis habitat at the Haines rodeo
ground typically occurs annually, and can impact this species if
performed during the growing season prior to seed set. Historically,
annual rodeos were held in July; however, in 1995 an additional spring
rodeo was held in May. Mowing to prepare for the spring rodeo occurs
prior to seed set, and if this practice continues it will adversely
affect reproduction of the plant. In some cases, mowing of T. howellii
ssp. spectabilis habitat for the July rodeo can reduce reproduction if
it occurs prior to seed set (see Factor A of this section). The Haines
rodeo ground currently supports the third largest habitat area for T.
howellii ssp. spectabilis.
Competition from nonnative plant species including Dipsacus
sylvestris (teasel), Cirsium vulgare (bull thistle), C. canadensis
(Canada thistle), and Melilotus officinalis (yellow sweet clover) also
threatens the long-term survival of Thelypodium howellii ssp.
spectabilis (Davis and Youtie 1995). The rapid expansion of D.
sylvestris is considered a significant threat to this species (Larkin
and Salzer 1992). At several sites, the formerly mesic meadow
communities containing Sarcobatus (greasewood) and T. howellii ssp.
spectabilis have largely been replaced by nonnative species.
At least two sites containing T. howellii ssp. spectabilis are
directly adjacent to fields where crops such as wheat and barley are
produced. The use of dicot-specific herbicides in these areas threatens
T. howellii ssp. spectabilis when overspraying occurs (J. Kagan, plant
ecologist, Oregon Natural Heritage Program, pers. comm., 1997). One of
these sites (Clover Creek) currently contains the second largest
habitat area for this species.
Because most populations of this species are small and existing
habitat is fragmented by agricultural conversion, grazing, roads and
urbanization, naturally occurring events, such as drought, represent
threats to the continued existence of this species. Of the 11 sites for
this species, 6 (50 percent) are 0.4 ha (1 ac) or less. Only 3 sites
are larger than 4 ha (10 ac). Small, isolated parcels are vulnerable to
edge effects (i.e., invasion by exotic plant species, disturbances by
local residents) and are unlikely to contribute significantly to the
long-term preservation of this species.
Livestock grazing tends to fragment T. howellii ssp. spectabilis
populations by reducing the density of plants in
[[Page 28399]]
openings, and restricting individuals to protected sites (e.g., beneath
Sarcobatus plants or spiny shrubs) (Kagan 1986, Robinson, in litt.
1996). Such habitat fragmentation also severely restricts the potential
for plant population expansion. Most known populations of T. howellii
ssp. spectabilis contain a low number of individual plants and are
limited geographically so that future survival may depend on recovery
actions such as restoring degraded habitat areas and removing competing
nonnative vegetation.
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
faced by this species in determining to issue this final rule. Most of
the remaining sites that support T. howellii ssp. spectabilis are small
and fragmented, and all existing sites are vulnerable to impacts from
grazing, trampling, and non-native vegetation in addition to urban and
agricultural development. One site is under a permanent conservation
easement, although management of this site has not been completely
effective at maintaining T. howellii ssp. spectabilis habitat in the
past. We are currently working to better address management of the
plant habitat at this site, which will include construction of fencing
to protect habitat from livestock grazing and to assist in noxious weed
control.
We have determined that listing as threatened rather than
endangered is appropriate for this species primarily because we believe
that grazing can be managed in a manner that will not adversely affect
habitat for T. howellii ssp. spectabilis, and the site containing the
largest habitat area for this taxon is subject to a permanent
conservation easement. In addition, the State and local weed management
agencies have initiated measures that afford some protection to T.
howellii ssp. spectabilis, such as identifying areas to be avoided by
herbicide application, and placing signs in the area. Based on this
evaluation, the preferred action is to list T. howellii ssp.
spectabilis as threatened. Alternatives to this action were considered
but not preferred because not listing this species would not provide
adequate protection and would not be consistent with the Act. In
addition, listing this species as endangered would not be appropriate
because the State of Oregon and local management agencies have
decreased the danger of extinction of T. howellii ssp. spectabilis at
the present time. However, if population declines continue and threats
are not adequately addressed, this species could be threatened with
extinction in the foreseeable future. For reasons discussed below,
critical habitat is not being proposed at this time.
Critical Habitat
Critical habitat is defined in section 3 of the Act as (i) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by the species at the time it is listed,
upon determination that such areas are essential for the conservation
of the species. ``Conservation'' means the use of all methods and
procedures needed to bring the species to the point at which listing
under the Act is no longer necessary.
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary designate critical habitat at the time
the species is listed as endangered or threatened. 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.
Section 7(a)(2) of the Act requires Federal agencies to consult
with the Service to ensure that any action authorized, funded, or
carried out by such agency, does not jeopardize the continued existence
of a federally listed species or does not destroy or adversely modify
designated critical habitat. The requirement that Federal agencies
refrain from contributing to the destruction or adverse modification of
critical habitat in any action authorized, funded or carried out by
such agency (agency action) is in addition to the section 7 prohibition
against jeopardizing the continued existence of a listed species, and
it is the only mandatory legal consequence of a critical habitat
designation. The Service's implementing regulations (50 CFR part 402)
define ``jeopardize the continuing existence of'' and ``destruction or
adverse modification of'' in very similar terms. To jeopardize the
continuing existence of a species means to engage in an action ``that
reasonably would be expected to reduce appreciably the likelihood of
both the survival and recovery of a listed species.'' Destruction or
adverse modification of habitat means an ``alteration that appreciably
diminishes the value of critical habitat for both the survival and
recovery of a listed species in the wild by reducing the reproduction,
numbers, or distribution of that species.''
Common to both definitions is an appreciable detrimental effect to
both the survival and recovery of a listed species. An action that
appreciably diminishes habitat for recovery and survival may also
jeopardize the continued existence of the species by reducing
reproduction, numbers, or distribution because negative impacts to such
habitat may reduce population numbers, decrease reproductive success,
or alter species distribution through habitat fragmentation.
For a listed plant species, an analysis to determine jeopardy under
section 7(a)(2) would take into consideration the loss of the species
associated with habitat impacts. Such an analysis would closely
parallel an analysis of habitat impacts conducted to determine adverse
modification of critical habitat. As a result, an action that results
in adverse modification also would almost certainly jeopardize the
continued existence of the species concerned. Because habitat
degradation and destruction is the primary threat to Thelypodium
howellii ssp. spectabilis, listing it will ensure that section 7
consultation occurs and potential impacts to the species and its
habitat are considered for any Federal action that may affect this
species. In many cases, listing also ensures that Federal agencies
consult with the Service even when Federal actions may affect
unoccupied suitable habitat where such habitat is essential to the
survival and recovery of the species. This is especially important for
plant species where consideration must be given to the seed bank
component of the species, which are not necessarily visible in the
habitat throughout the year. A significant portion of their vegetative
structure may not be in evidence during cursory surveys; occupancy of
suitable habitat can only be reliably determined during the growing
season. In practice, we consult with Federal agencies proposing
projects in areas where the species was known to recently occur or to
harbor known seed banks.
Apart from section 7, the Act provides no additional protection to
lands designated as critical habitat. Designating critical habitat does
not create a management plan for the areas where the listed species
occurs; does
[[Page 28400]]
not establish numerical population goals or prescribe specific
management actions (inside or outside of critical habitat); and does
not have a direct effect on areas not designated as critical habitat.
Critical habitat designation for Thelypodium howellii ssp.
spectabilis is not prudent because it would provide no additional
benefit on non-Federal lands beyond that provided by listing. T.
howellii ssp. spectabilis is known to occur only on private lands.
Critical habitat designation provides protection on non-Federal lands
or private lands only when there is Federal involvement through
authorization or funding of, or participation in, a project or activity
(Federal nexus). In other words, designation of critical habitat on
non-Federal lands does not compel or require the private or other non-
Federal landowner to undertake active management for the species or to
modify any activities in the absence of a Federal nexus. Because all
known occurrences of this plant are on private land, activities
constituting threats to the species (see ``Summary of Factors Affecting
the Species''), including grazing, agricultural and urban development,
alterations of wetland hydrology, and competition from non-native
vegetation, are generally not subject to section 7 consultation. Any
Federal involvement, if it does occur, will be addressed regardless of
whether critical habitat is designated because interagency coordination
requirements such as the Fish and Wildlife Coordination Act and section
7 of the Act are already in place. When T. howellii ssp. spectabilis is
listed, activities occurring on all lands subject to Federal
jurisdiction that may adversely affect these species would prompt the
requirement for section 7 consultation, regardless of whether critical
habitat has been designated. Although there may occasionally be a
Federal nexus for T. howellii ssp. spectabilis through regulation of
wetland fill and removal activities regulated by the U.S. Corps through
section 404 of under the Clean Water Act, the designation of critical
habitat for this plant would provide no benefit beyond that provided by
listing. For example, the plant is restricted to 11 known sites (seven
less than an acre in size) in unique, moist, alkaline meadow habitat
located in valley bottoms, and any action that would adversely modify
habitat at these sites also would jeopardize the continued existence of
the species, because the biological threshold for triggering either
determination would be the same. In view of the limited habitat for
this species, the loss of any of the 11 sites resulting from Corps
regulated wetland fill activities would likely result in a jeopardy
determination. Thus, in this case, the prohibition on adverse
modification would provide no benefit beyond that provided by the
prohibition on jeopardy. The designation of critical habitat,
therefore, would not provide additional benefit for the species.
While a designation of critical habitat on private lands would only
affect actions where a Federal nexus is present and would not confer
any additional benefit beyond that already provided by section 7
consultation; and because virtually any action that would result in an
adverse modification determination would also likely jeopardize the
species, a designation of critical habitat on private lands could
result in a detriment to the species. This is because the limited
effect of a critical habitat designation on private lands is often
misunderstood by private landowners whose property boundaries could be
included within a general description of critical habitat for a
specific species. Landowners may mistakenly believe that critical
habitat designation will be an obstacle to land use and development and
impose restrictions on their use of their property. In some cases,
members of the public may believe critical habitat designation to be an
attempt on the part of the government to confiscate their private
property. Unfortunately, inaccurate and misleading statements reported
through widely popular media available worldwide are the types of
misinformation that can and have led private landowners to believe that
critical habitat designations prohibit them from making private use of
their land when, in fact, they face potential constraints only if they
need a Federal permit or receive Federal funding to conduct specific
activities on their lands, such as filling in wetlands. These types of
misunderstandings, and the fear and mistrust they create among
potentially affected landowners, makes it very difficult for us to
cultivate meaningful working relationships with such landowners and to
encourage voluntary participation in species conservation and recovery
activities. Without the willing participation of landowners in the
recovery process, we will find it very difficult to recover T. howellii
ssp. spectabilis on the private lands where the only known populations
occur.
We are currently working with involved agencies and landowners to
periodically survey and monitor T. howellii ssp. spectabilis
populations and develop plant management strategies. We have notified
all involved parties and landowners of the importance of protecting the
habitat of the remaining populations of T. howellii ssp. spectabilis,
and plant protection agreements for some sites are in place. The
livestock grazing threat is being addressed by working directly with
landowners to adjust seasonal use and through fence construction to
limit livestock trespass. The plant is palatable to livestock, and
grazing occurring from April through July can be detrimental to annual
seed production; grazing at other times of the year has little direct
effect (Davis and Youtie 1995). Altered grazing practices can only be
achieved through voluntary efforts of landowners; designation of
critical habitat would not change grazing practices.
In addition to cooperative efforts between us and landowners, other
governmental agencies offer opportunities to protect T. howellii ssp.
spectabilis. All known locations of T. howellii ssp. spectabilis along
road sides have been inconspicuously marked so Oregon State Highway
Department crews can avoid destruction of plants during highway
maintenance activities (A. Robinson, pers. comm. 1997). The U.S.
Department of Agriculture, through its Wildlife Habitat Incentive
Program offers funding to landowners which can be used to protect
endangered plants, including T. howellii ssp. spectabilis (62 FR
49357). In view of ongoing actions and the lack of benefit provided by
designation of critical habitat on non-Federal lands, we believe that
conservation and protection of this plant will be accomplished more
effectively through procedures other than critical habitat designation.
A designation of critical habitat for T. howellii ssp. spectabilis
on private lands could inadvertently encourage habitat destruction by
private landowners wishing to rid themselves of the perceived
endangered species problem. Listed plants have limited protection under
the Act, particularly on private lands. Section 9(a)(2) of the Act,
implemented by regulations at 50 CFR section 17.61 (endangered plants)
and 50 CFR 17.71 (threatened plants) only prohibits (1) removal and
reduction of listed plant species to possession from areas under
Federal jurisdiction, or their malicious damage or destruction on areas
under Federal jurisdiction; or (2) removal, cutting, digging up, or
damaging or destroying any such species in knowing violation of any
State law or regulation, including State criminal trespass laws.
Generally, on private lands, collection of, or vandalism to, listed
plants must occur
[[Page 28401]]
in violation of State law to be a violation of section 9. The Oregon
Endangered Species Act does not protect listed plants on private lands.
Thus, a private landowner concerned about perceived land management
conflicts resulting from a critical habitat designation covering his
property would likely face no legal consequences if the landowner
removed the listed species or destroyed its habitat. The designation of
critical habitat involves the publication of habitat descriptions and
mapped locations of the species in the Federal Register, increasing the
likelihood of unwanted notice by potential search and removal
activities at specific sites.
We acknowledge that in some situations critical habitat designation
may provide some value to the species by notifying the public about
areas important for the species conservation and calling attention to
those areas in special need of protection. However, in this case, the
few existing sites containing T. howellii ssp. spectabilis are already
known by the affected private landowners. When this limited public
notification benefit is weighed against the detriment to plant species
associated with the widespread misunderstanding about the effects of
such designation on private landowners and the environment of mistrust
and fear that such misunderstandings can create, we conclude that the
detriment to the species from a critical habitat designation covering
non-federal lands outweighs the educational benefit of such designation
and that such designation is therefore not prudent. The information and
notification process can more effectively be accomplished by working
directly with landowners and communities during the recovery planning
process and by the section 7 consultation and coordination where the
Federal nexus exists. The use of these existing processes will impart
the same knowledge to the landowners that critical habitat designation
would, but without the confusion and misunderstandings that may
accompany a critical habitat designation.
Although this biennial plant is not of horticultural interest, the
listing in and of itself may contribute to an increased risk from over-
collection. Simply listing a species can precipitate commercial or
scientific interest and activities, both legal and illegal, which can
threaten the species through unauthorized and uncontrolled collection
for both commercial and scientific purposes. The listing of species as
endangered or threatened publicizes their rarity and may make them more
susceptible to collection by researchers or curiosity seekers (Mariah
Steenson pers. comm. 1997, M. Bosch, U.S. Forest Service in litt.
1997). Disseminating specific, sensitive locations can encourage plant
poaching (M. Bosch, U.S. Forest Service, pers. comm., 1997). For
example, the Service designated critical habitat for the mountain
golden heather (Hudsonia montana), a small shrub not previously known
to be commercially valuable or particularly susceptible to collection
or vandalism. After the critical habitat designation was published in
the Federal Register, unknown persons visited a Forest Service
wilderness area in North Carolina where the plants occurred and, with a
recently published newspaper article and maps of the plant's critical
habitat designation in hand, asked about the location of the plants.
Several plants we had been monitoring were later found to be missing
from unmarked Service study plots (Nora Murdock, U.S. Fish and Wildlife
Service, pers. comm. 1998). Designating critical habitat, including the
required disclosure of precise maps and descriptions of critical
habitat, would further advertise the rarity of T. howellii ssp.
spectabilis and provide a road map to occupied sites causing even
greater threat to the species from vandalism, trampling, or
unauthorized collection (M. Steenson, Portland Nursery Inc., pers.
comm., 1997). Easily accessible roadside populations with few
individuals would be particularly susceptible to indiscriminate
collection by persons interested in rare plants. Plants, unlike most
animal species protected under the Act, are particularly vulnerable to
collection because of their inability to escape when sought by
collectors.
In conclusion, we have weighed the lack of overall benefit of
critical habitat designation beyond that provided by virtue of being
listed as threatened or endangered along with the limited benefit of
public notification against the detrimental effects of the negative
public response and misunderstanding of what critical habitat
designation means and the increased threats of illegal collection and
vandalism, and have concluded that critical habitat designation is not
prudent for T. howellii ssp. spectabilis.
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 public awareness and
results in conservation actions by Federal, State and private agencies,
groups, and individuals. The Act provides for possible land acquisition
and cooperation with the states and requires that recovery actions be
carried out for all listed species. 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 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 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 us
on any action that is likely to jeopardize the continued existence of a
proposed species or result in destruction or adverse modification of
proposed critical habitat. If a species is listed subsequently, section
7(a)(2) requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of 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 us.
Federal agencies that may have involvement with Thelypodium
howellii ssp. spectabilis through section 7 include the Corps and the
Environmental Protection Agency through their permit authority under
section 404 of the Clean Water Act. The Federal Housing Administration
and Farm Services Agency may be affected through potential funding of
housing and farm loans where this species or its habitat occurs.
Highway construction and maintenance projects that receive funding from
the Department of Transportation (Federal Highways Administration) will
also be subject to review under section 7 of the Act.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all threatened
plants. All prohibitions of section 9(a)(2) of the Act, implemented by
50 CFR 17.71 for threatened plants, apply. These prohibitions, with
respect to any endangered or threatened species of plants, in part,
make it illegal for any person subject to the jurisdiction of the
United States to import or export, transport or ship 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
[[Page 28402]]
reduce to possession from areas under Federal jurisdiction. Seeds from
cultivated specimens of threatened plant taxa also 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 17.72 also provide for the issuance of permits
to carry out otherwise prohibited activities involving threatened plant
species under certain circumstances. Such permits are available for
scientific purposes and to enhance the propagation or survival of the
species. For threatened plants, permits also are available for
botanical or horticultural exhibition, educational purposes, or special
purposes consistent with the purposes of the Act. We anticipate few
trade permits would ever be sought or issued for the species because
the plant is not common in cultivation or in the wild.
It is the policy of the Service, published in the Federal Register
on July 1, 1994 (59 FR 34272), to identify, to the maximum extent
practicable at the time 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 effects of
the listing on proposed and ongoing activities within the species'
range. Collection, damage or destruction of this species on Federal
land is prohibited, although in appropriate cases a Federal permit
could be issued to allow collection for scientific or recovery
purposes. However, T. howellii ssp. spectabilis is not known to occur
on public (Federal) lands. We believe that, based upon the best
available information, the following actions will not result in a
violation of section 9, provided these activities are carried out in
accordance with existing regulations and permit requirements:
(1) Activities authorized, funded, or carried out by Federal
agencies (if the species were found on Federal lands), (e.g., grazing
management, agricultural conversions, wetland and riparian habitat
modification, flood and erosion control, residential development,
recreational trail development, road construction, hazardous material
containment and cleanup activities, prescribed burns, pesticide/
herbicide application, pipelines or utility lines crossing suitable
habitat,) when such activity is conducted in accordance with any
reasonable and prudent measures given by the Service in a consultation
conducted under section 7 of the Act;
(2) Casual, dispersed human activities on foot or horseback (e.g.,
bird watching, sightseeing, photography, camping, hiking);
(3) Activities on private lands that do not require Federal
authorization and do not involve Federal funding, such as grazing
management, agricultural conversions, flood and erosion control,
residential development, road construction, and pesticide/herbicide
application when consistent with label restrictions;
(4) Residential landscape maintenance, including the clearing of
vegetation around one's personal residence as a fire break.
We believe that the following might potentially result in a
violation of section 9; however, possible violations are not limited to
these actions alone:
(1) Unauthorized collecting of the species on Federal lands (if the
species were to occur on Federal lands);
(2) Application of pesticides/herbicides in violation of label
restrictions;
(3) Interstate or foreign commerce and import/export without
previously obtaining an appropriate permit. Permits to conduct
activities are available for purposes of scientific research and
enhancement of propagation or survival of the species.
Questions regarding whether specific activities may constitute a
violation of section 9 should be directed to the Field Supervisor of
the Snake River Basin Office (see ADDRESSES section). Requests for
copies of the regulations on listed plants and inquiries regarding them
may be addressed to the U.S. Fish and Wildlife Service, Ecological
Services, Permits Branch, 911 NE 11th Ave., Portland, Oregon 97232-4181
(503/231-6241).
National Environmental Policy Act
The Service has determined that an Environmental Assessment, as
defined under the authority of the National Environmental Policy Act of
1969, need not be prepared in connection with regulations adopted
pursuant to section 4(a) of the Endangered Species Act, as amended. A
notice outlining our reasons for this determination was published in
the Federal Register on October 25, 1983 (48 FR 49244).
Paperwork Reduction Act
This rule does not contain any information collection requirements
for which the Office of Management and Budget (OMB) approval under the
Paperwork reduction Act, 44 U.S.C. 3501 et seq. is required. An
information collection related to the rule pertaining to permits for
endangered and threatened species has OMB approval and is assigned
clearance number 1018-0094. This rule does not alter that information
collection requirement. For additional information concerning permits
and associated requirements for threatened species, see 50 CFR 17.32.
References Cited
Al-Shehbaz, I.A. 1973. The biosystematics of the genus Thelypodium.
Contr. Gray Herb. 204(93):115-117.
Antell, K.S. 1990. Howell's thelypody: a rare biennial mustard from
Oregon. Biology Department, Eastern Oregon State College, LaGrande,
Oregon.
Conservation Easement. 1991. Miles Wetland Property, located in
North Powder, Oregon.
Davis, J.S. and B. Youtie. 1995. Site information and analysis:
North Powder Thelypodium howellii ssp. spectabilis preserve.
Prepared for The Nature Conservancy, Oregon Field Office, Portland,
Oregon.
Greenleaf, J. 1980. Status report for Thelypodium howellii Wats ssp.
spectabilis (Peck) Al-Shehbaz.
Kagan, J.S. 1986. Status report for Thelypodium howellii ssp.
spectabilis. Oregon Natural Heritage Data Base, Portland, Oregon.
Larkin, G. and D. Salzer. 1992. A plant demography study of
Delphinium leucocephalum, Thelypodium howellii ssp. spectabilis,
Astragalus applegatei, and Lilium occidentale: preliminary report
1990-1991. Prepared for The Nature Conservancy, Oregon Field Office,
Portland, Oregon.
Oregon Department of Fish and Wildlife (ODFW). 1996. Miles wetlands
five-year action plan: 1997-2002. Prepared for the U.S. Fish and
Wildlife Service.
Oregon Natural Heritage Program (ONHP). 1998. Element occurrence
records for Thelypodium howellii ssp. spectabilis.
Peck, M. 1932. New species from Oregon. Torreya 32:150.
Whitson, T.D., L.C. Burrill, S.A. Dewey, D.W. Cudney, B.E. Nelson,
R.D. Lee, R. Parker. 1996. Weeds of the West, 5th edition. Published
by the University of Wyoming and the Western Society of Weed
Science, Newark, California.
Author. The primary author of this final rule is Edna Rey-
Vizgirdas, U.S. Fish and Wildlife Service, Snake River Basin Office
(see ADDRESSES section); telephone 208/378-5243.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations as set forth below:
[[Page 28403]]
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 name Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Flowering Plants
* * * * * * *
Thelypodium howellii ssp. Howell's spectacular U.S.A. (OR)........ Brassicaceae T 662 NA NA
spectabilis. thelypody. mustard.
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Dated: April 28, 1999.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 99-13249 Filed 5-25-99; 8:45 am]
BILLING CODE 4310-55-P
