[Federal Register Volume 62, Number 144 (Monday, July 28, 1997)]
[Proposed Rules]
[Pages 40325-40329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19762]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AE30
Endangered and Threatened Wildlife and Plants; Proposed
Endangered Status for the Plant Sidalcea Keckii (Keck's Checker-Mallow)
From Tulare County, California
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The Fish and Wildlife Service (Service) proposes to list
Sidalcea keckii (Keck's checker-mallow) as endangered pursuant to the
Endangered Species Act of 1973, as amended (Act). Sidalcea keckii is
known only from a single population in the annual grasslands of Tulare
County, California. Sidalcea keckii is threatened by urban development,
agricultural land conversion, and naturally occurring events. This
proposal, if made final, would implement the Federal protection and
recovery provisions afforded by the Act for the plant.
DATES: Comments from all interested parties must be received by,
September 26, 1997. Public hearing requests must be received by
September 11, 1997.
ADDRESSES: Comments and materials concerning this proposal should be
sent to the Field Supervisor, U.S. Fish and Wildlife Service,
Sacramento Field Office, 3310 El Camino Avenue, Sacramento, California
95825. Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the above
address.
FOR FURTHER INFORMATION CONTACT: Ken Fuller, Sacramento Field Office
(see ADDRESSES section), (telephone 916/ 979-2120; facsimile 916/ 979-
2128).
SUPPLEMENTARY INFORMATION:
Background
The San Joaquin Valley of California is a large, north-south
oriented, alluvial valley that is mostly farmed or urbanized. The San
Joaquin Valley, from Stockton in the north to Bakersfield in the south,
is approximately 700 kilometers (km) (320 miles (mi)) long and 300 km
(135 mi) wide. Tulare County, one of ten counties in the San Joaquin
Valley, is located toward the southern end of the valley. A single
population of Sidalcea keckii occurs toward the southern end of the
valley, in south-central Tulare County.
Sidalcea keckii is a slender, hairy, erect annual herb belonging to
the mallow family (Malvaceae). The species grows 1.5 to 3.5 decimeters
(dm)(6 to 13 inches(in.)) tall. The lower leaf blades have 7 to 9
shallow lobes. The upper leaves have a tapered base with 2 to 5 notches
in the upper lobes. A few deep pink flowers, 10 to 20 millimeters (mm)
(0.4 to 0.8 in.) wide, appear in April through May. Seeds are smooth
and pink-tinted. Sidalcea keckii closely resembles four other annual
species of Sidalcea--S. calycosa, S. diploscyha, S. hartwegii, and S.
hirsuta. Sidalcea calycosa and S. diploscyha have ranges that overlap
with S. keckii. Sidalcea keckii can be variously separated from similar
species by the number and size of flowers, the arrangement of stamens,
the lengths of the bract and calyx, the presence of an aggregation of
linear stipules and bracts surrounding the flower at maturity, the size
and shape of the stem leaves, the density of hairs on the stems, and
the presence of a purplish spot on the flower.
Wiggins (1940) described Sidalcea keckii from specimens collected
in 1935 and 1938 near White River, Tulare County. Sidalcea keckii was
known historically from three populations occurring between 120 to 425
meters (m) (400 to 1,400 feet (ft)) in elevation, but it has not been
seen at two of these sites for about 57 years. It was considered to be
extinct until 1992, when the third, and only extant, population of S.
keckii was discovered by consultants conducting a site inventory as
part of the environmental compliance prior to construction of a
subdivision (Woodward and Clyde, Biological Consultants, 1992). The
population of S. keckii occurs on 20 to 40 percent slopes of red or
white-colored clay in sparsely-vegetated annual grasslands. The clays
are thought to be derived from serpentine (magnesian or ultramafic)
soils. The population covers an area measuring 30 m by 100 m (100 ft by
320 ft) and had a total of only 60 plants in 1992. It occurs on a
privately-owned parcel of land comprising an area of 280 hectare (ha)
(700 acre (ac)) that is currently grazed by livestock. S. keckii is
threatened by urban development, agricultural land conversion, and
naturally occurring events.
Previous Federal Action
Federal government actions on the plant began as a result of
section 12 of the original Endangered Species Act of 1973, (Act) as
amended (16 U.S.C. 1531 et seq.), which directed the Secretary of the
Smithsonian Institution to prepare a report on those plants considered
to be endangered, threatened, or extinct in the United States. This
report, designated as House Document No. 94-51, was presented to
Congress on January 9, 1975, and included Sidalcea keckii as a
threatened 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
[[Page 40326]]
petition within the context of section 4(c)(2) (petition provisions are
now found in section 4(b)(3) of the Act) and its intention thereby to
review the status of the plant taxa named therein. The July 1, 1975
notice included the above taxon. On June 16, 1976, the 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. S. keckii was not included in the June
16, 1976, Federal Register document.
The Service published an updated notice of review for plants on
December 15, 1980 (45 FR 82480). This notice included Sidalcea keckii
as a category 1* candidate. Category 1* candidates were species
believed to have become extinct, S. keckii having since been
rediscovered. This designation for S. keckii 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 notice of review on February 28, 1996 (61 FR
7596), the Service included S. keckii as a candidate species.
Candidate species are those which the Service has on file sufficient
information on biological vulnerability and threat(s) to support
proposals to list them as threatened or endangered species. S. keckii
was also listed as a candidate in the Notice of Review published on
February 28, 1996 (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 Sidalcea keckii,
because the 1975 Smithsonian report had been accepted as a petition. On
October 13, 1982, the Service found that the petitioned listing of the
species was warranted, but precluded by other pending listing actions,
in accordance with section 4(b)(3)(B)(iii) of the Act; notification of
this finding was published on January 20, 1984 (49 FR 2485). Such a
finding requires the petition to be recycled, pursuant to section
4(b)(3)(C)(I) of the Act. The finding was reviewed annually in October
of 1983 through 1997. S. keckii has a listing priority number of 2.
Processing of this rule is a Tier 3 activity under the current listing
priority guidance (61 FR 64480).
Summary of Factors Affecting the Species
Section 4 of the Act (16 U.S.C. 1533) and regulations (50 CFR part
424) promulgated to implement the listing provisions of the Act set
forth the procedures for adding species to the Federal list 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
Sidalcea keckii Wiggins (Keck's checker-mallow) are as follows:
A. The Present or Threatened Destruction, Modification, or Curtailment
of its Habitat or Range
Only three verified sites for Sidalcea keckii have been reported
historically. The species is presumed extirpated from its type locality
near White River in Tulare County and from a second historical site in
the vicinity of Piedra, Fresno County. Despite repeated searches for
the species, it has not been found at either of these sites since 1939,
when the species was first named (the date of the type collection),
(John Stebbins, Fresno State University, in litt. 1994). One erroneous
report of an occurrence near Porterville, Tulare County, is a
misidentification of either S. calycosa or S. hirsuta (J. Stebbins, in
litt. 1994). The only extant population, of approximately 60
individuals in Tulare County, was discovered in 1992 (Stebbins, in
litt. 1994).
Historically, the habitat of Sidalcea keckii has been degraded by
urban development, agricultural land conversion, and livestock grazing
(Stebbins, in litt. 1994). These factors continue to threaten S.
keckii. As recently as 1992, a subdivision was proposed for the private
land containing the only known population of S. keckii, although that
proposal has been withdrawn (Marge Neufield, Tulare County Planning
Department, in litt. 1995). Agricultural land conversion also threatens
this population (California Natural Diversity Data Base 1995). Citrus
orchards occur within 1.6 kilometers (1 mile) of the population of S.
keckii. The parcel of land where this species occurs is at the same
elevation as existing orchards, and has soils similar to those on which
citrus is grown.
The land on which the population is found is currently used for
grazing. Although the level of grazing on the parcel is not currently
thought to pose a threat to the species, an increase in grazing
intensity beyond best management practices could potentially threaten
the species. A 64 ha (160 ac) portion of the 280 ha (700 ac) on which
the plant occurs is currently zoned as Planned Development of Foothill
Mobile Home. This designation permits, subject to site plan review, a
subdivision, business, or mixed business and residential development of
the land. Lands adjacent to this parcel are zoned to permit citrus,
grapes, or other crop agriculture, or livestock grazing (Roberto Brady,
Tulare County Planning Department, pers. comm. 1997). A zoning variance
could permit either residential or agricultural use of the parcel on
which the plant occurs. The intended future use of the land is
presently unknown.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Overutilization is not currently known to be a threat to the plant,
however, because this plant is known from a small number of individual
plants in a single population it is extremely vulnerable to
unrestricted collecting for scientific or horticultural purposes.
Although this species is not currently known to be sought by
collectors, the genus is prized as a source of choice horticultural
plants. Impacts from excessive visits by individuals interested in
seeing rare plants could result from increased publicity as a result of
this proposal.
C. Disease or Predation
At this time there is no evidence to suggest that either disease or
predation presents a significant problem for Sidalcea keckii.
D. The Inadequacy of Existing Regulatory Mechanisms
The California Environmental Quality Act (CEQA) 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 requires a finding of significance if a
project has the potential to ``reduce the number or restrict the range
of a rare or endangered plant or animal.'' Species that are eligible
for listing as rare, threatened, or endangered but are not so listed,
are given the same protection provided for Federal or State listed
species. Once any
[[Page 40327]]
significant effects are identified, the lead agency has the option to
either require mitigation for effects through changes in the project,
or to decide that overriding considerations would make mitigation
infeasible. Projects may therefore be approved that can cause
significant environmental damage. Protection of unlisted, proposed, and
listed species through CEQA is therefore dependant upon the judgement
of the lead agency. Proposed revisions to CEQA guidelines, if
implemented, may also weaken protections for threatened, endangered,
and other sensitive species.
Sidalcea keckii is not listed by the California Department of Fish
and Game under the California Endangered Species Act (Chapter 1.5 sec.
2050 et seq. of the California Fish and Game Code and Title 14
California Code of Regulations section 670.2). Listing by the State of
California requires individuals to obtain a management agreement with
the California Department of Fish and Game (CDFG) to possess or
``take'' a listed species. Although ``take'' of State-listed plants is
prohibited (California Native Plant Protection Act, Chapter 10 section
1908 and California Endangered Species Act, Chapter 1.5 section 2080),
State law appears to exempt the taking of such plants via habitat
modification or land use changes by the owner. Effectively upon
notification of a landowner by CDFG that a State-listed plant grows on
his or her property, a land owner will become obligated under State law
to 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 section 1913).
E. Other Natural or Manmade Factors Affecting Its Continued Existence
Sidalcea keckii is extremely localized with one only small
population of approximately 60 individuals. This species is, therefore,
highly susceptible to extinction from naturally occurring events such
as fire, insect predation, and disease outbreaks (Primack 1993).
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by this species in determining to propose this
rule. Sidalcea keckii is threatened by urban development, agricultural
land conversion, and naturally occurring events. Although the Service
is not aware of any current proposal for either development or
conversion of the parcel on which the one small population occurs, this
population is situated in an area that is suitable for development or
agriculture and is unprotected from these threats. Because of the high
potential for these threats, if realized, to result in the extinction
of S. keckii, the preferred action is to list S. keckii as endangered.
Other alternatives to listing were considered before publication of
this proposed rule. There are currently no activities for the
conservation of the species (e.g., conservation agreements or
easements) being undertaken or planned. The alternative of listing the
species as threatened is inappropriate at this time because of the high
potential for either land development or agricultural conversion to
result in the extinction of Sidalcea keckii. Current practices of CEQA
within the State of California would provide inadequate protection for
this candidate species. Listing S. keckii as endangered would provide
Federal protection for the species and result in additional protection
as outlined under the Available Conservation Measures section.
Critical Habitat
Critical habitat is defined in section 3 of the Act as: (i) The
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection and; (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
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
a species is determined to be 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.
The Service finds that designation of critical habitat is not
prudent for Sidalcea keckii. Although this species is not currently
known to be sought by collectors, the genus is prized as a source of
choice horticultural plants. The listing of this species as endangered
also publicizes its rarity and, thus, can make it attractive to
researchers or collectors of rare plants. Listing of S. keckii as an
endangered species also discloses the present vulnerability of this
species and, thus, can be reasonably expected to increase the treat of
vandalism or the intentional destruction of its habitat. In light of
the vulnerability of this species to vandalism or intentional
destruction of the species habitat, publication of maps providing it
precise locations and descriptions of critical habitat, as required for
the designation of critical habitat, would reasonably be expected to
increase the degree of threats to the species, increase the
difficulties of enforcement, and further contribute to the decline of
S. keckii.
Furthermore, critical habitat designation for Sidalcea keckii is
not prudent due to lack of benefit. The species is limited to a single
location, and any action that would adversely modify critical habitat
also would jeopardize the species. Therefore, the designation of
critical habitat would not provide any benefit to the conservation of
the species.
Protection of the habitat of this species will be primarily
addressed through the recovery process. Protection of the habitat of
this species may also be addressed through the section 7 consultation
process. Consultation may be necessary for the possible renewal of a
Bureau of Reclamation's Friant service area Central Valley Project
water contract, affecting the land on which the species occurs. The
Service believes that effects of Federal involvement in the areas where
this plant occurs can be adequately identified without the designation
of critical habitat. Therefore, the Service finds that designation of
critical habitat for this plant is not prudent, such designation would
reasonably increase the degree of threats from vandalism or intentional
destruction of habitat and would not increase the degree of protection
for the species beyond the protection afforded 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
practices. Recognition through listing encourages and results in
conservation actions by Federal, State, and private agencies, groups,
and individuals. The Act
[[Page 40328]]
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 such a species or to
destroy or adversely modify its critical habitat. If a Federal action
may affect a listed species or its critical habitat, the responsible
Federal agency must enter into formal consultation with the Service.
Ongoing Federal agency actions that may affect Sidalcea keckii
include Bureau of Reclamation renewal of the Central Valley Project's
Friant water contracts. Listing S. keckii would provide for development
of a recovery plan for the plant. A recovery plan would bring together
both State and Federal efforts for conservation of this species. The
recovery plan would establish a framework for agencies to coordinate
activities and cooperate with each other in conservation efforts. The
plan would set recovery priorities and estimate costs of various tasks
necessary to accomplish them. The recovery plan also would describe
site-specific management actions necessary to achieve conservation and
survival of the plant. Additionally, pursuant to section 6 of the Act,
the Service would be able to grant funds to an affected State such as
California for management actions promoting the protection and recovery
of the species.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered
plants. All prohibitions of section 9(a)(2) of the Act, implemented by
50 CFR 17.61 for endangered plants, apply. These prohibitions, in part,
make it illegal for any person subject to the jurisdiction of the
United States to import or export, 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 reduce to
possession from areas under Federal jurisdiction. In addition, for
plants listed as endangered, the Act prohibits the malicious damage or
destruction on areas under Federal jurisdiction and the removal,
cutting, digging up, or damaging or destroying of such plants in
knowing violation of any State law or regulation, including State
criminal trespass law. Certain exceptions 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 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
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.
Activities that are not likely to violate section 9 include
livestock grazing, construction or maintenance of fences and livestock
water facilities, 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 and 17.63 also provide for the issuance of
permits to carry out otherwise prohibited activities involving
endangered plant species under certain circumstances. Such permits are
available for scientific purposes and to enhance the propagation or
survival of the species. Requests for copies of the regulations on
listed plants and inquiries regarding them may be addressed to the U.S.
Fish and Wildlife Service, Ecological Services, Permits Branch, 911 NE
11th Ave., Portland, Oregon 97232-4181 (503/231-6241).
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 Sidalcea keckii;
(2) The location of any additional populations of this species and
the reasons why any habitat should or should not be determined to be
critical habitat as provided by section 4 of the Act;
(3) Additional information concerning the range, distribution, and
population size of this species; and
(4) Current or planned activities in the subject area and their
possible impacts on this species.
Final promulgation of the regulation(s) for this 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 hearing(s) 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 be addressed to the Field
Supervisor, Sacramento Field Office, (see ADDRESSES section).
National Environmental Policy Act
The Fish and Wildlife Service has determined that an Environmental
Assessments and Environmental Impact Statements, 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. This rulemaking was not
[[Page 40329]]
subject to review by the Office of Management and Budget under
Executive Order 12866.
References Cited
California Natural Diversity Data Base. 1995. An Electronic Data
Base. Natural Heritage Division. California Department of Fish and
Game. Sacramento, California.
Primack, R. 1993. Essentials of Conservation Biology. Sinauer
and Associates, pp. 272-273.
Wiggins, I. 1940. Contributions to the Dudley Herbarium 3:55-56.
Woodward and Clyde Biological Consultants. 1992. Focused
Biological Surveys for Eight Target Species in Tulare County. Unpub.
rept. Appendix J-1.
Author
The primary author of this proposed rule is Ken Fuller, 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, and 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) * * *
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Species
-------------------------------------------------------- Historic range Family Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Flowering Plants
* * * * * * *
Sidalcea keckii.................. Keck's checker- U.S.A. (CA)........ Malvaceae--Mallow.. E ........... NA NA
mallow.
* * * * * * *
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Dated: July 3, 1997.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 97-19762 Filed 7-25-97; 8:45 am]
BILLING CODE 4310-55-P
