[Federal Register Volume 62, Number 122 (Wednesday, June 25, 1997)]
[Proposed Rules]
[Pages 34190-34197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16605]
[[Page 34190]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AE25
Endangered and Threatened Wildlife and Plants; Proposed
Endangered Status for the Plant Eriogonum Apricum (Ione Buckwheat) and
Proposed Threatened Status for the Plant Arctostaphylos Myrtifolia
(Ione Manzanita)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The Fish and Wildlife Service (Service) proposes endangered
status pursuant to the Endangered Species Act of 1973, as amended
(Act), for Eriogonum apricum (inclusive of vars. apricum and
prostratum) (Ione buckwheat). The Service also proposes threatened
status for Arctostaphylos myrtifolia (Ione manzanita). These two
species occur primarily on soils derived from the Ione Formation in
Amador or Calaveras counties in the central Sierra Nevada foothills of
California and are imperiled by one or more of the following factors--
mining, clearing of vegetation for agriculture and fire protection,
disease, inadequate regulatory mechanisms, habitat fragmentation,
residential and commercial development, changes in fire frequency, and
continued erosion due to prior off-road vehicle use. Random events
increase the risk to the few, small populations of E. apricum. This
proposal, if made final, would implement the Federal protection and
recovery provisions afforded by the Act for these plants.
DATES: Comments from all interested parties must be received by August
25, 1997. Public hearing requests must be received by August 11, 1997.
ADDRESSES: Comments and materials concerning this proposal should be
sent to the Field Supervisor, Sacramento Field 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: Kirsten Tarp, Sacramento Field Office
(see ADDRESSES section) (telephone 916/979-2120; facsimile 916/979-
2128).
SUPPLEMENTARY INFORMATION:
Background
Arctostaphylos myrtifolia (Ione manzanita), Eriogonum apricum var.
apricum (Ione buckwheat), and Eriogonum apricum var. prostratum (Irish
Hill buckwheat) are found primarily in western Amador County, about 70
kilometers (km) (40 miles (mi)) southeast of Sacramento in the central
Sierra Nevada foothills of California. Most populations occur at
elevations between 90 and 280 meters (m) (280 to 900 feet (ft)). A few
isolated occurrences of A. myrtifolia occur in adjacent northern
Calaveras County.
Both species included in this proposal exhibit marked substrate
preferences and grow in openings within chaparral vegetation on
lateritic soils crusts (cement-like crusts of yellow iron oxide)
developed under a subtropical or tropical climate during the Eocene
(35-57 million years before present); the laterite is associated with
the Ione Formation (Allen 1929). The ``Ione soils'' in the area are
coarse-textured and exhibit soil properties typical of those produced
under tropical climates such as high acidity, high aluminum content,
and low fertility (Singer 1978). These soils and the sedimentary
deposits with which they are associated also contain large amounts of
commercially valuable minerals including quartz sands, kaolinitic
clays, lignite (low-grade coal), and possible gold-bearing gravels
(Chapman and Bishop 1975). The nearest modern-day relatives to these
soils occur in Hawaii and Puerto Rico (Singer 1978).
The vegetation in the Ione area is distinctive enough to be
designated as ``Ione chaparral'' in a classification of plant
communities in California (Holland 1986). Stebbins (1993) characterized
the Ione chaparral as an ecological island, which he defined as a
relatively small area with particular climatic and ecological features
that differ significantly from surrounding areas. This plant community
occurs only on very acidic, nutrient-poor, coarse soils, and is
comprised of low-growing heath-like shrubs and scattered herbs (Holland
1986). The dominant shrub is Arctostaphylos myrtifolia, which is
narrowly endemic to the area. Ione chaparral is restricted in
distribution to the vicinity of Ione in Amador County, and a few local
areas of adjacent northern Calaveras County where the community is
estimated to cover 2,430 hectares (ha) (6,000 acres (ac)) (California
Natural Diversity Database (CNDDB) 1994). The endemic plants that grow
here are thought to do so because they can tolerate the acidic,
nutrient-poor conditions of the soil which exclude other plant species;
the climate of the area may be moderated by its position due east of
the Golden Gate (Gankin and Major 1964, Roof 1982).
Discussion of the Two Species Proposed for Listing
Parry (1887) described Arctostaphylos myrtifolia based upon
material collected near Ione, California. Subsequent authors variously
treated this taxon as Uva-ursi myrtifolia (Abrams 1914), A. nummularia
var. myrtifolia (Jepson 1922), Schizococcus myrtifolius (Eastwood
1934), and Arctostaphylos uva-ursi ssp. myrtifolia (Roof 1982). Wells
(1993), in his treatment of California Arctostaphylos, maintained the
species as A. myrtifolia.
Arctostaphylos myrtifolia is an evergreen shrub of the heath family
(Ericaceae) that lacks a basal burl. Attaining a height of generally
less than 1.2 m (3.8 ft), plants appear low and spreading. The bark is
red, smooth, and waxy. Olive green, narrowly elliptic leaves are 6 to
15 millimeters (mm) (0.2 to 0.6 inches (in.)) long. Red scale-like
inflorescence bracts are 1 to 2 mm (0.1 in.) long. White or pinkish
urn-shaped flowers appear from January to February. The fruit is
cylindric. The species depends almost entirely on fire to promote seed
germination (Wood and Parker 1988). Arctostaphylos myrtifolia can be
distinguished from other species in the same genus by its smaller
stature and the color of its leaves.
Arctostaphylos myrtifolia is reported from 17 occurrences (CNDDB
1997). Because most of these occurrences are based on the collection
localities of individual specimens, it is uncertain how many stands
these 17 occurrences represent. Arctostaphylos myrtifolia may occur in
about 100 individual stands which cover a total of about 400 ha (1,000
ac) (Roy Woodward, Bechtel, in litt. 1994). It occurs primarily on
outcrops of the Ione Formation within an area of about 91 square (sq.)
km (35 sq. mi) in Amador County. In addition, a few disjunct
populations occur in Calaveras County. The populations range in
elevation from 60 to 580 m (190 to 1900 ft), with the largest
populations occurring at elevations between 90 and 280 m (280 and 900
ft) (Wood and Parker 1988). Arctostaphylos myrtifolia is the dominant
and characteristic species of Ione chaparral, where it occurs in pure
stands. It also occurs in an ecotone with surrounding taller chaparral
types, but it does not persist if it is shaded (R. Woodward, in litt.
1994). It is impossible to quantify the amount of A. myrtifolia habitat
already lost to mining because information
[[Page 34191]]
regarding the total mineral production as well as the total acreage of
land newly disturbed by a mining operation is proprietary (Maryann
Showers, California Department of Mining and Geology, pers. comm.
1994). Although the exact area of habitat lost is unknown, a
significant loss of habitat has occurred (Roof 1982; Stebbins 1993;
Wood, in litt. 1994). Mining, disease, clearing of vegetation for
agriculture and fire protection, inadequate regulatory mechanisms,
habitat fragmentation, residential and commercial development, changes
in fire frequency, and ongoing erosion threaten various populations of
this plant (CNDDB 1997; Ed Bollinger, Acting Area Manager, Bureau of
Land Management (BLM), Folsom Resource Area, in litt. 1994, Michael
Wood, Botanical Consultant, in litt. 1994). Arctostaphylos myrtifolia
occurs primarily on private or non-Federal lands. The BLM manages one
occurrence on the Ione Manzanita Area of Critical Environmental Concern
(ACEC). Four small, pure populations and several smaller, mixed
populations also occur on the state-owned Apricum Hill Ecological
Reserve managed by the California Department of Fish and Game (CDFG)
(Wood and Parker 1988).
Eriogonum apricum comprises two varieties--Eriogonum apricum var.
apricum and E. apricum var. prostratum. Descriptions are provided below
for each of the varieties.
Howell described the species Eriogonum apricum (Ione buckwheat) in
1955 based on a specimen collected in the foothills of the Sierra
Nevada near Ione, Amador County, California. Myatt described a variety
of the Ione buckwheat, E. apricum var. prostratum (Irish Hill
buckwheat) in 1970. According to the rules for botanical nomenclature,
when a new variety is described in a species not previously divided
into infraspecific taxa, an autonym (an automatically generated name)
is created. In this case, the autonym is Eriogonum apricum var.
apricum.
Both varieties, Eriogonum apricum vars. apricum and prostratum, are
perennial herbs in the buckwheat family (Polygonaceae). Eriogonum
apricum var. apricum is glabrous (smooth, without hairs or glands) and
grows upright to 8 to 20 centimeters (cm) (3 to 8 in.) in height. Its
leaves are basal, round to oval, and 3 to 5 mm (0.1 to 0.3 in.) wide.
The calyx (outer whorl of flower parts) is white with reddish midribs.
Eriogonum apricum var. apricum flowers from July to October, and is
restricted to 9 occurrences occupying a total of approximately 4 ha (10
ac) (The Nature Conservancy 1984) on otherwise barren outcrops within
the Ione chaparral. Of the 9 known occurrences of E. apricum var.
apricum, one is partially protected by CDFG (CNDDB 1994). Eriogonum
apricum var. apricum occurs primarily on private or non-Federal land;
BLM manages one occurrence. Mining, clearing of vegetation for
agriculture and for fire protection, inadequate regulatory mechanisms,
habitat fragmentation, increased residential development, and erosion
threaten both populations of this plant.
Eriogonum apricum var. prostratum has smaller leaves, a prostrate
habit (lying flat), and an earlier flowering time than E. apricum var.
apricum. The 2 known occurrences of E. apricum var. prostratum are
restricted to otherwise barren outcrops on less than 0.4 ha (1 ac) in
openings of Ione chaparral on private land. Mining, inadequate
regulatory mechanisms, habitat fragmentation, erosion, and random
events threaten the occurrences of this plant.
Previous Federal Action
Federal government actions on both plants began as a result of
section 12 of the Endangered Species Act of 1973, 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 Arctostaphylos myrtifolia, Eriogonum
apricum var. apricum and E. apricum var. prostratum as endangered
species. The Service published a notice on July 1, 1975 (40 FR 27823)
of its acceptance of the report of the Smithsonian Institution as a
petition within the context of section 4(c)(2) (petition provisions are
now found in section 4(b)(3) of the Act) and its intention to review
the status of the plant taxa named therein. The above three taxa were
included in the July 1, 1975, notice. On June 16, 1976, the 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
Service in response to House Document No. 94-51 and the July 1, 1975,
Federal Register publication. Arctostaphylos myrtifolia, E. apricum
var. apricum, and E. apricum var. prostratum were included in the June
16, 1976, Federal Register document.
General comments received in relation to the 1976 proposal were
summarized in an April 26, 1978, rule (43 FR 17909). Amendments to the
Act in 1978 required that all proposals over 2 years old be withdrawn.
A 1-year grace period was given to those proposals already more than 2
years old. In a December 10, 1979, notice (44 FR 70796), the Service
withdrew the June 16, 1976, proposal, along with four other proposals
that had expired.
The Service published a Notice of Review for plants on December 15,
1980 (45 FR 82480) that listed those plants currently considered for
listing as endangered or threatened. The three taxa were included as
candidates for Federal listing in this document. Candidate taxa are
those for which the Service has on file substantial information on
biological vulnerability and threats to support preparation of listing
proposals. The November 28, 1983, supplement to the Notice of Review
(48 FR 53640) made no changes to the designation for these taxa.
The plant notice was revised again on September 27, 1985 (50 FR
39526), February 21, 1990 (55 FR 6184), and September 30, 1993 (58 FR
51144). In these three notices, Arctostaphylos myrtifolia, Eriogonum
apricum var. apricum and E. apricum var. prostratum were again included
as candidates. All three taxa were also included as candidates in the
February 28, 1996, Notice of Review (61 FR 7596).
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 Arctostaphylos
myrtifolia, Eriogonum apricum var. apricum and E. apricum var.
prostratum, because the 1975 Smithsonian report had been accepted as a
petition. On October 13, 1982, the Service found that the petitioned
listing of these 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 1994. Publication of this proposal constitutes
the final finding for the petitioned action.
Eriogonum apricum has a listing priority number of 2 (each variety
has a listing priority number of 3).
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Arctostaphylos myrtifolia has a listing priority number of 8.
Processing of this rule is a Tier 3 action under the current listing
priority guidance (61 FR 64480).
Summary of Factors Affecting the Species
Section 4 of the Act 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 of endangered and threatened
species. 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 Arctostaphylos myrtifolia C. Parry
(Ione manzanita) and Eriogonum apricum J. Howell (inclusive of vars.
apricum and prostratum R. Myatt) (Ione buckwheat) are as follows:
A. The present or threatened destruction, modification, or
curtailment of its habitat or range. Nearly all occurrences of both
plant species occur on private or non-Federal land. The primary threat
facing both species is the ongoing and threatened destruction and
modification of their habitat by mining for silica sand, clay, lignite,
common sand and gravel, and reclamation of mined lands to vegetation in
which these species cannot exist. A lesser degree of threat is posed by
commercial or residential development, clearing for agriculture and
fire protection, and continued erosion due to previous fireline
construction and a driver training course used by fire fighters.
The habitat of Arctostaphylos myrtifolia and Eriogonum apricum
occurs in areas that contain valuable minerals. Clay mining began in
the Ione area around 1860. Since this time, the Ione area has produced
about a third of the fire clay in California (Chapman and Bishop 1975).
Lignite, a low-grade coal, also has been mined in the Ione area since
the early 1860's, initially as a fuel source, but more recently for wax
used for industrial purposes. Chapman and Bishop (1975) reported the
Ione lignites were the only lignites used commercially in the United
States in the production of a specialized wax (montan wax). Quartz sand
used in making glass containers, and laterite, used for making cement,
also are commercially mined in the Ione area (Chapman and Bishop 1975).
Common sands and gravels are also mined for various uses. Mining of all
of these deposits has resulted in the direct removal of habitat for
both plant species (Michael Wood, Botanical Consultant, in litt. 1994;
Wood and Parker 1988; V. Thomas Parker, San Francisco State University,
in litt. 1994). Strip mining of silica for glass and clay for ceramics
and industrial filters has extirpated populations of A. myrtifolia
north and south of Highway 88 (Roof 1982).
By 1982, a significant amount of habitat already had been lost
(Roof 1982; Stebbins 1993; Wood, in litt. 1994). Fifteen active surface
mines on private land near Ione continue to remove the habitat of both
plants; approved reclamation plans show that in excess of 1,400 ha
(3,500 ac) of surface removal will occur (mining reports on file at
California Department of Geology and Mines; CDFG 1992; V. Thomas
Parker, in litt. 1994; Michael K. Wood, in litt. 1994). The exact
amount of habitat loss to date cannot be quantified because information
regarding the total mineral production as well as the total acreage of
land newly disturbed by a mining operation is proprietary (Maryann
Showers, pers. comm. 1994). Based on an estimate derived from mining
reports on file at California Department of Geology and Mines, over
half of the Ione chaparral habitat, numerous stands of Arctostaphylos
myrtifolia, and most of the occurrences of Eriogonum apricum occur
within areas that will be impacted by the 15 mines. Mining has
eliminated several populations of A. myrtifolia south of Ione since
1990 (V. Thomas Parker, in litt. 1994). The East Lambert Project, a
proposed open pit to mine clay, lignite, and silica, if approved, would
remove part of a population of A. myrtifolia. Clay mining threatens one
of the two remaining populations of Eriogonum apricum var. prostratum
(CDFG 1991). The second population is not protected and potentially
could be mined (CDFG 1991). Most of the 9 populations of E. apricum
var. apricum occur on private land that is not protected and could be
mined.
As discussed in Factor D, mining reclamation results in conversion
of former habitat to rangeland, pasture, and other agricultural uses.
Additionally, once the area is mined, the specialized substrate
required by the plants may no longer be present. This type of
disturbance permanently precludes restoration of habitat suitable for
Arctostaphylos myrtifolia and Eriogonum apricum. To a lesser extent,
land conversion to grazing and agriculture also has degraded or
destroyed the habitat for these plants (Michael Wood, in litt. 1994;
Wood and Parker 1988; V. Thomas Parker, in litt. 1994). Both activities
continue to pose threats to the habitat of the subject plant taxa.
Commercial and residential development also threatens the habitat
of Arctostaphylos myrtifolia. In 1993, a 43 ha (107 ac) parcel in the
City of Ione reported to have A. myrtifolia was cleared, presumably to
facilitate future development (Randy L. Johnsen, Ione City
Administrator, in litt. 1994). The Amador County master plan has zoned
an area in the northern Ione chaparral near Carbondale for industrial
uses. This area of about 75 ha (185 ac) is proposed to be developed
over the next 10 years (Ron Mittlebrunn, Amador Council of Economic
Development, pers. comm. 1994). Zoning for most lands outside the City
of Ione permits one house on 16 ha (40 ac) density (Gary Clark, Amador
County Planning Department, in litt. 1994). Habitat loss and
degradation outside the City of Ione results from development of small
ranches and associated clearing for fire protection, pastures,
buildings, and infrastructure (G. Clark, in litt. 1994). Clearing
destroys individual plants of both species and fragments and degrades
the habitat.
Mining operations, land clearing for agriculture; and commercial
and residential development have fragmented and continue to fragment
and isolate the habitat of Arctostaphylos myrtifolia in Amador County.
Habitat fragmentation may disrupt natural ecosystem processes by
changing the amount of incoming solar radiation, water, wind, and/or
nutrients (Saunders et al. 1991) and further exacerbates the impacts of
mining, off-road vehicular use, and other human activities.
The population of Arctostaphylos myrtifolia occurring on the BLM
Ione Manzanita ACEC was degraded by California Department of Forestry's
training activities. Building firelines and conducting driver training
courses resulted in a criss-crossing of roads and trails within the
ACEC that reduced and fragmented the habitat (BLM 1989). Although these
practices were discontinued in 1991 the roads have not revegetated
naturally and continued erosion of the roads and adjacent habitat
remains a concern (Ed Bollinger, BLM, Folsom Resource Area, in litt.
1994).
B. Overutilization for commercial, recreational, scientific, or
educational purposes. Overutilization is not currently known to be a
factor for the two plants, but unrestricted collecting for scientific
or horticultural purposes or excessive visits by individuals interested
in seeing rare plants could potentially result for Eriogonum apricum
from increased publicity as a result of this proposal.
C. Disease or predation. Livestock graze one population of
Eriogonum apricum var. prostratum, but grazing is not considered to be
harmful (CNDDB
[[Page 34193]]
1994). An unidentified fungal pathogen has caused major die-back of
partial or entire stands of Arctostaphylos myrtifolia throughout its
range (Wood and Parker 1988; Wood, in litt. 1994). The majority of
populations of A. myrtifolia show signs of die-back. The fungal disease
is a serious problem for the populations south of Ione (M. Wood, pers.
comm. 1994). Stands along Highway 88 that were healthy a few years ago
are being killed with little evidence of seedlings regeneration (Neil
Havlik, Solano County Farmland and Open Space Foundation, pers. comm.
1994). Wood and Parker conducted a series of controlled burns to test
the regeneration of stands that had no, partial, and complete die-back.
To date, stands that were completely killed by the fungus before
burning have not regenerated. Healthy and partially affected stands
regenerated, but it is not yet known if this regeneration will result
in healthy stands (M. Wood, in litt. 1994).
D. The inadequacy of existing regulatory mechanisms. Eriogonum
apricum vars. apricum and prostratum are listed as endangered under the
California Endangered Species Act (chapter 1.5 section 2050 et seq. of
the California Fish and Game Code and Title 14 California Code of
Regulations 670.2). Individuals are required to obtain a management
authorization with the California Department of Fish and Game (CDFG) to
possess or ``take'' a listed species under the California Endangered
Species Act. Although the ``take'' of State-listed plants is prohibited
(California Native Plant Protection Act, chapter 10 sec. 1908 and
California Endangered Species Act, chapter 1.5 sec. 2080), State law
appears to exempt the taking of such plants via habitat modification or
land use changes by the owner. This State law does not necessarily
prohibit activities that could extirpate this species. After CDFG
notifies a landowner that a State-listed plant grows on his or her
property, State law 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'' (Native Plant Protection Act, chapter 10 sec. 1913).
Ten days may not allow adequate time for agencies to coordinate the
salvage of the plants.
The California Environmental Quality Act (CEQA) (chapter 2 section
21050 et seq. of the California Public Resources Code) 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 CEQA guidelines, now undergoing amendment, 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 are given the same protection as species officially listed
under 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
may be approved that cause significant environmental damage, such as
the destruction of State-listed endangered species. The protection of
Eriogonum apricum var. apricum, E. apricum var. prostratum, and
Arctostaphylos myrtifolia under CEQA is therefore dependent upon the
discretion of the lead agency.
Section 21080(b) of CEQA allows certain projects to be exempted
from the CEQA process. Ministerial projects, those projects that the
public agency must approve after the applicant shows compliance with
certain legal requirements, may be approved or carried out without
undertaking CEQA review. Examples of ministerial projects include final
subdivision map approval and most building permits (Bass and Herson
1994).
The California Surface and Mining Reclamation Act of 1975 (CSMRA)
(chapter 9, section 2710 et seq. of the California Public Resources
Code) requires that adverse environmental effects are prevented or
minimized and that mined lands are reclaimed to a useable condition
that is readily adaptable for alternative land uses. Although CSMRA
requires reclamation for mining activities, the standards for
reclamation and the success of any revegetation is judged on the
approved end use of the land. Approved examples of these end uses for
mining activities within the Ione area include water storage for
irrigation, grazing, rangeland, seeding with grasses for pasture, and
intensive agriculture (mining reports on file at California Department
of Geology and Mines). CSMRA does not require replacement of the same
vegetation type, species, or percentage of vegetation cover as the
habitat that is lost. No approved mining reclamation plans included
measures to attempt restoration of either Arctostaphylos myrtifolia or
Eriogonum apricum, although one plan indicated an intention to allow A.
myrtifolia, known to occur on the site, to re-establish itself (mining
reports on file at California Department of Geology and Mines). As a
result, reclamation of mining impacts will not result in re-
establishment of the native vegetation. CSMRA also does not apply to
the prospecting or extraction of minerals for commercial purposes, as
well as the removal of material that lies above or between natural
mineral deposits in amounts less than 760 cubic m (1,000 cubic yards)
in any location of 0.4 ha (1 ac) or less.
CSMRA is also inadequate for protection of the species subject to
this proposed rule because reclamation plans are required to be
submitted only for operations conducted after January 1, 1976. Surface
mining operations that were permitted or authorized prior to January 1,
1976, are not required to submit reclamation plans as long as no
substantial changes are made in their operation. The lead agency is
responsible for determining what constitutes a substantial change in
operation.
Although the City of Ione General Plan and the Environmental Impact
Report of the Banks annexation to the City of Ione includes the
protection of Arctostaphylos myrtifolia and Eriogonum apricum as a
goal, the City has no regulatory mechanism to stop land clearing and/or
preserve natural habitat (R. Johnsen, in litt. 1994).
Two preserves support occurrences of Arctostaphylos myrtifolia and
Eriogonum apricum var. apricum. The Apricum Hill Ecological Reserve,
managed by the California Department of Fish and Game, is about 15.2 ha
(37.5 ac). The Ione manzanita ACEC, managed by BLM, covers 35 ha (86
ac). Because both preserves are small, they are subject to edge effects
such as shading by taller shrubs or competition with invasive
vegetation (see Factor A and E for more detail).
E. Other natural or manmade factors affecting its continued
existence. The effects of altered fire periodicity on Arctostaphylos
myrtifolia have not been well studied. Arctostaphylos myrtifolia lacks
the ability to crown sprout and is killed outright by fire. It must,
therefore, reproduce by seed. Abundant post-fire seed germination has
been reported by Roof (1982) and by Woodward (in litt. 1994) who also
reported successful reestablishment of the species on ground scraped by
tractors during a fire suppression operation. The response of A.
myrtifolia to fire appears, however, to be irregular and unpredictable
(Wood and Parker 1988).
[[Page 34194]]
Fire appears to be necessary for the long-term maintenance of the
Ione chaparral community. Controlled burning may be a viable means of
ensuring adequate reproduction of Arctostaphylos myrtifolia, or perhaps
even controlling or preventing loss due to the fungal pathogen (M.
Wood, in litt. 1994, V.T. Parker, in litt. 1994). Field observations
and controlled experiments to date, however, suggest that caution be
exercised in the use of fire until the reasons for the variability in
the response of A. myrtifolia are better understood. Long term study
sites established to study this response have been graded and cleared
by the land owner (V.T. Parker, in litt. 1994, M. Wood, in litt. 1994
).
Re-establishment in mined areas may be difficult for Arctostaphylos
myrtifolia due to a lack of the required specialized substrate and an
absence of proven propagation methods (E. Bollinger, in litt. 1994).
Researchers have attempted a variety of germination and seed bank
experiments without success (Wood and Parker 1988). Others have also
attempted to cultivate the species with little or no success (R.
Gankin, pers. comm., cited in Wood and Parker 1988). Although the plant
has a limited capacity to root from its lower branches, Roof (1982)
reported that he was unaware of even a single plant that had been grown
or cultivated from a rooted branch. The only report of successful
cultivation indicates that the plant requires high soil-acidity and
heavy supplements of soluble aluminum (Roof 1982).
Throughout its range, on habitat edges where better soil
development occurs, Arctostaphylos myrtifolia is being outcompeted by
native vegetation. Arctostaphylos viscida (white-leaf manzanita), a
more rapidly growing, taller manzanita, encroaches along the edge of
stands of A. myrtifolia, shading individuals. Arctostaphylos myrtifolia
is eliminated when A. viscida grows tall enough to shade it (M. Wood,
pers. comm. 1994; Roy Woodward, in litt. 1994). This is not likely to
be a significant threat to the species, however, because most stands
occur on substrates from which taller shrubs are excluded.
As discussed in factor A, habitat fragmentation may alter the
physical environment. Plant species may disappear from chaparral
fragments that are from 10 to 100 ha in size due to persistent
disturbance and potentially due to change in fire frequency (Soule et
al. 1992). In addition, habitat fragmentation increases the risks of
extinction due to random environmental, demographic, or genetic events.
The two small, isolated populations of Eriogonum apricum var.
prostratum, makes random extinction more likely. Chance events, such as
disease outbreaks, reproductive failure, extended drought, landslides,
or combination of several such events, could destroy part of a single
population or entire populations. A local catastrophe also could
decrease a population to so few individuals that the risk of
extirpation due to genetic and demographic problems inherent to small
populations would increase.
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by these species in determining to propose this
rule. Eriogonum apricum (inclusive of vars. apricum and prostratum) is
known from 11 populations on approximately 4 ha (10 ac) in Amador
County, California. The species is endangered by mining, clearing of
vegetation for agriculture and for fire protection, inadequate
regulatory mechanisms, habitat fragmentation, residential and
commercial development and ongoing erosion. Eriogonum apricum is in
danger of extinction throughout all or a part of its range and the
preferred action is, therefore, to list it as endangered.
Arctostaphylos myrtifolia is reported from 17 sites, and estimated to
occur in a total of about 100 stands covering about 400 ha (1,000)
acres in Amador County, with a few occurrences in Calaveras County. It
is threatened by mining, disease, clearing of vegetation for
agriculture and for fire protection, inadequate regulatory mechanisms,
habitat fragmentation, increased residential development and changes in
fire frequency. Although A. myrtifolia faces many of the same threats
as Eriogonum apricum, the significantly wider range and greater number
of populations and individuals of A. myrtifolia moderate the threats.
Thus, A. myrtifolia is not now in danger of extinction throughout a
significant portion of its range, as is E. apricum, but is likely to
become endangered within the foreseeable future. Therefore, the
preferred action is to list A. myrtifolia as threatened. Other
alternatives to this action were considered but not preferred because
not listing Eriogonum apricum (inclusive of vars. apricum and
prostratum) as endangered and Arctostaphylos myrtifolia as threatened
would not provide adequate protection and not be in keeping with the
purposes of the Act.
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
consideration or protection and; (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. ``Conservation'' 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 determined to be endangered or threatened. The Service
finds that designation of critical habitat is not prudent for Eriogonum
apricum and Arctostaphylos myrtifolia at this time. 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.
Because Eriogonum apricum and Arctostaphylos myrtifolia face
numerous human-caused threats (see Factors A and E in ``Summary of
Factors Affecting the Species'') and occur predominantly on private
land, the publication of precise maps and descriptions of critical
habitat in the Federal Register would make these plant species more
vulnerable to incidents of vandalism and, therefore, could contribute
to the decline of these species and increase enforcement problems. A 43
ha (107 ac) parcel previously identified in a public document as
habitat for these species was cleared in 1993, presumably to facilitate
future development (R. Johnsen, in litt. 1994). The listing of E.
apricum as endangered also publicizes the rarity of this plant and,
thus, can make it attractive to researchers or collectors of rare
plants.
Furthermore, critical habitat designation for Arctostaphylos
myrtifolia and Eriogonum apricum is
[[Page 34195]]
not prudent due to lack of benefit. All but one occurrence of E.
apricum and most occurrences of Arctostaphylos myrtifolia are on non-
Federal land. Furthermore, since E. apricum has very specific habitat
requirements and occupies a total of only about 4 ha (10 ac) at few
locations, any activity that would adversely modify critical habitat or
destroy plants would likely jeopardize the continued existence of E.
apricum. Therefore, designation of critical habitat would provide
little, if any, additional benefit beyond listing. The Service,
therefore, concludes that designation of critical habitat is not
prudent for these species both because such designation can be expected
to increase the degree of threat to the species and because of a lack
of benefit from such action.
Protection of the habitat of these species will be addressed
through the recovery process and through the section 7 consultation
process. The Service believes that Federal involvement in the areas
where these plants occur can be identified without the designation of
critical habitat. Therefore, the Service finds that designation of
critical habitat for these plants is not prudent at this time, because
such designation likely would increase the degree of threat from
vandalism, collecting, or other human activities, and because it
provides no benefits to the species beyond those which are provided by
listing.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
activities. Recognition through listing encourages and results in
conservation actions by Federal, State, local agencies, private
organizations, and individuals. The Act provides for possible land
acquisition and cooperation with the State and requires that recovery
actions be carried out for all listed species. The protection required
of Federal agencies and the prohibitions against certain activities
involving listed plants are discussed, in part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service 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 the 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 Service.
Almost all of the occurrences for both species are on private land.
One population of Arctostaphylos myrtifolia and a population of
Eriogonum apricum var. apricum occur on Federal land managed by the
BLM. Other potential Federal involvement includes the construction and
maintenance of roads and highways by the Federal Highway Administration
(2 populations of E. apricum var. apricum occur along right-of-ways
owned by Caltrans), the permitting of lignite or coal mines through the
Federal Office of Surface Mining Reclamation and Enforcement, and the
relicensing of hydroelectric projects by the Federal Energy Regulatory
Commission.
Listing these two plant species would provide for development of a
recovery plan (or plans) for them. Such plan(s) would bring together
both State and Federal efforts for conservation of the plants. The
plan(s) would establish a framework for agencies to coordinate
activities and cooperate with each other in conservation efforts. The
plan(s) would set recovery priorities and estimate costs of various
tasks necessary to accomplish them. It also would describe site-
specific management actions necessary to achieve conservation and
survival of the two plants. Additionally, pursuant to section 6 of the
Act, the Service would be more likely to grant funds to affected states
for management actions promoting the protection and recovery of these
species.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered or
threatened plants. All prohibitions of section 9(a)(2) of the Act,
implemented by 50 CFR 17.61 for endangered plants and 17.71 for
threatened plants, apply. These prohibitions, in part, make it illegal
for any person subject to the jurisdiction of the United States to
import or export, transport in interstate or foreign commerce in the
course of a commercial activity, sell or offer for sale in interstate
or foreign commerce, or remove and reduce the species to possession
from areas under Federal jurisdiction. In addition, for plants listed
as endangered, the Act prohibits malicious damage or destruction on
areas under Federal jurisdiction, and the removal, cutting, digging up,
or damaging or destroying of such plants in knowing violation of any
State law or regulation, including state criminal trespass law. Section
4(d) of the Act allows for the provision of such protection to
threatened species through regulation. This protection may apply to
Arctostaphylos myrtifolia in the future if regulations are promulgated.
Seeds from cultivated specimens of threatened plants are exempt from
these prohibitions provided that their containers are marked ``Of
Cultivated Origin'' appears on the shipping containers. Certain
exceptions to the prohibitions apply to agents of the Service and state
conservation agencies.
It is the policy of the Service (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 effect of the listing on proposed and ongoing activities within
a species' range. Less than 5 percent of the occurrences of the two
species occur on public (Federal) lands. Collection, damage or
destruction of these species on Federal lands is prohibited, although
in appropriate cases a Federal endangered species permit may be issued
to allow collection for scientific or recovery purposes. Such
activities on non-Federal lands would constitute a violation of section
9 when conducted in knowing violation of California State law or
regulations or in violation of State criminal trespass law. See factor
D. for a discussion of California's law protecting plants.
Activities that are not prohibited by the Federal listing of these
plants include livestock grazing, clearing a defensible space for fire
protection around one's personal residence, and landscaping (including
irrigation), around one's personal residence. Questions regarding
whether specific activities will constitute a violation of section 9
should be directed to the Field Supervisor of the Sacramento Field
Office (see ADDRESSES section).
The Act and 50 CFR 17.62, 17.63 for endangered plants, and 17.72
for threatened plants, also provide for the issuance of permits to
carry out otherwise prohibited activities involving endangered or
threatened plants under certain circumstances. Such permits are
available for scientific
[[Page 34196]]
purposes and to enhance the propagation or survival or 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. It is anticipated few trade
permits would ever be sought or issued for the three species because
the species are not common in cultivation or in the wild. Requests for
copies of the regulations regarding listed species and inquiries
regarding prohibitions and permits may be addressed to the U.S. Fish
and Wildlife Service, Endangered Species Permits, 911 N.E. 11th Avenue,
Portland, Oregon 97232-4181 (phone 503/231-2063, facsimile 503/231-
6243).
Public Comments Solicited
The 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 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 Arctostaphylos myrtifolia and Eriogonum
apricum;
(2) The location of any additional populations of these 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 these species; and
(4) Current or planned activities in the subject area and their
possible impacts on these species.
Final promulgation of the regulation(s) on these species will take
into consideration the comments and any additional information received
by the Service, and such communications may lead to a final regulation
that differs from this proposal.
The Act provides for one or more public hearings on this proposal,
if requested. Requests must be received within 45 days of the date of
publication of the proposal in the Federal Register. Such requests must
be made in writing and addressed to the Field Supervisor, U. S. Fish
and Wildlife Service, Sacramento Field Office, 3310 El Camino Avenue,
Suite 130, Sacramento, California 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 Endangered
Species Act of 1973, as amended. A notice outlining the Service's
reasons for this determination was published in the Federal Register on
October 25, 1983 (48 FR 49244).
Required Determinations
The Service has examined this regulation under the Paperwork
Reduction Act of 1995 and found it to contain no information collection
requirements.
References Cited
A complete list of all references cited herein is available upon
request from the Field Supervisor, Sacramento Field Office (see
ADDRESSES section).
Author: The primary author of this proposed rule is Kirsten Tarp,
U.S. Fish and Wildlife Service, Sacramento Field Office (see ADDRESSES
section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, the 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. Section 17.12(h) is amended by adding the following, in
alphabetical order under FLOWERING PLANTS, to the List of Endangered
and Threatened Plants to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
[[Page 34197]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Arctostaphylos myrtifolia........ Ione manzanita...... U.S.A. (CA)........ Ericaceae.......... T ........... NA NA
* * * * * * *
Eriogonum apricum (inclusive of Ione buck wheat..... U.S.A. (CA)........ Polygonaceae....... E ........... NA NA
vars. apricum and prostratum).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: May 12, 1997.
John G. Rogers,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 97-16605 Filed 6-24-97; 8:45 am]
BILLING CODE 4310-55-U
