62276 Federal Register / Vol. 62, No. 225 / Friday, November 21, 1997 / Proposed Rules

DEPARTMENT OF THE INTERIOR jaw region of the skull), when viewed 1985 and 1986, no additional from above, are noticeably convex populations of riparian brush Fish and Wildlife Service instead of straight or concave as in other were located (Williams 1988). A races of bachmani (Orr 1940). The color maximum of about 81 hectares (ha) (198 50 CFR Part 17 varies from dark brown to gray above to acres (ac)) in Caswell Memorial State RIN 1018±AE40 white underneath. The subspecies Park are suitable for riparian visually resembles the desert cottontail brush (Williams 1993). During Endangered and Threatened Wildlife (Sylvilagus audubonii), a species that periods of heavy flooding, when and Plants; Proposed Endangered also occurs in riparian within virtually no suitable habitat remains Status for the Riparian Brush Rabbit the historic range of the riparian brush exposed as a refugium, the population and Riparian Woodrat rabbit. In-hand identification is required can drop dramatically. Williams (1988) to definitively distinguish between estimated a population low of 10 or AGENCY: Fish and Wildlife Service, young individuals of these species fewer individuals after severe winter Interior. (Williams 1993). flooding in 1985–86. Extended flooding ACTION: Proposed rule. Brush rabbits in general breed occurred during the winter and spring between December and May or June of 1997, but no population estimate is SUMMARY: The Fish and Wildlife Service (Mossman 1955). After a gestation yet available (see factor A in the (Service) proposes to list the riparian period of 26 to 30 days, the young are ‘‘Summary of Factors Affecting the brush rabbit (Sylvilagus bachmani born in nest cavities lined mainly with Species’’ section). Such low population riparius) and the riparian (San Joaquin fur and covered with a grass plug (Davis levels may make this subspecies Valley) woodrat (Neotoma fuscipes 1936, Orr 1940, Orr 1942). The young extremely vulnerable to detrimental riparia) as endangered species pursuant are born naked, blind, and helpless and genetic processes and random events to the Endangered Species Act of 1973, open their eyes in 10 days (Orr 1940, (see factor E in the ‘‘Summary of Factors as amended (Act). The brush rabbit and Orr 1942). Young rabbits remain in the Affecting the Species’’ section). woodrat inhabit riparian communities nest about 2 weeks before venturing out, Maximum population estimates from along the lower portions of the San and the female will continue to suckle surveys conducted in recent years at Joaquin and Stanislaus rivers in the her young for 2 to 3 weeks after their Caswell Memorial State Park are 88 to northern San Joaquin Valley, . birth. Orr (1940) reported a mean litter 452 individuals (Williams 1988), 320 to Only a single remaining population of size of between three and four with a 540 individuals (Basey 1990), and 170 each species has been confirmed. range of two to five, while Mossman to 608 individuals (Williams 1993). Potential threats to these species (1955) reported an average of four with Because this subspecies was not include flooding, wildfire, predation, a range of three to six. Riparian brush described until after it is believed to and other random factors. This rabbits grow to adult size in 4 to 5 have been extirpated from most of its proposal, if made final, would extend months, but do not reach sexual historic range, definitive information on the Act’s protective provisions to these maturity until the winter following its former distribution is lacking. Even . birth. Females give birth to about 5 though riparian brush rabbit specimen DATES: Comments from all interested litters per season with an estimated records and sightings were known only parties must be received by January 20, average of 9 to 16 young per breeding from along the San Joaquin River near 1998. Public hearing requests must be season (Basey 1990). The percentage of the boundary of San Joaquin and received by January 5, 1998. females active during the breeding Stanislaus counties, Orr (1940) believed, ADDRESSES: Comments and materials season is unknown, but in 1 study, 9 of based on the presence of suitable concerning this proposal should be sent 25, or 36 percent of, female adults habitat, that its historic range extended to the U.S. Fish and Wildlife Service, examined showed no signs of along the San Joaquin river system, from 3310 El Camino Ave., Suite 130, reproductive activity (Basey 1990). Stanislaus County north to the Sacramento, California 95821. The habitat of the riparian brush Sacramento-San Joaquin River Delta. It Comments and materials received will rabbit is riparian forests with a dense apparently has been extirpated from the be available for public inspection, by shrub layer. Common food plants in Delta, as well as most of the lower San appointment, during normal business riparian brush rabbit habitat include Joaquin River and its tributaries—the hours at the above address. Rosa californica (California wild rose), Stanislaus, Tuolumne, and Merced Rubus ursinus (Pacific blackberry), Vitis rivers (Williams 1986). The range of the FOR FURTHER INFORMATION CONTACT: californica (wild grape), Sambucus subspecies likely extended farther Diane Windham at the above address mexicana (elderberry), and grasses upstream south of the Merced River, (telephone 916/979–2725). (Williams 1988, Basey 1990). Brush assuming that suitable habitat occurred SUPPLEMENTARY INFORMATION: rabbits have relatively small home historically along the length of the San ranges that usually conform to the size Background Joaquin River system (Williams and and shape of available brushy habitat Basey 1986). The riparian brush rabbit (Sylvilagus (Basey 1990). In general, the home The riparian (San Joaquin Valley) bachmani riparius) was described as a ranges of males are larger than those of woodrat (Neotoma fuscipes riparia) was distinct subspecies by Orr (1935) and is females but male home ranges do not first described by Hooper (1938) and is one of 13 subspecies of S. bachmani overlap the primary activity centers 1 of 11 subspecies of N. fuscipes in the (Hall 1981). Sylvilagus bachmani within female territories (Basey 1990). family Muridae (order Rodentia). The belongs to the order and The riparian brush rabbit is currently subspecies has been retained by Hall family . The riparian brush restricted to a single population at (1981) and Williams (1986 and 1993). rabbit is a medium to small cottontail Caswell Memorial State Park, San The riparian woodrat is a medium-sized with a total length of 300 to 375 Joaquin County, along the Stanislaus rodent, its total length averaging 443 millimeters (mm) (11.8 to 14.8 inches River (Williams and Basey 1986). In mm (17.4 in), its tail length averaging (in)) and a mass of 500 to 800 grams (g) surveys conducted in all potential 217 mm (8.5 in) (Hooper 1938), and its (1.1 to 1.8 pounds). It is unique in that habitat along the Merced, San Joaquin, total weight, based on measurements of the sides of the rostrum (nasal/upper Stanislaus, and Tuolumne rivers during other subspecies, averaging about 227 g Federal Register / Vol. 62, No. 225 / Friday, November 21, 1997 / Proposed Rules 62277

(8 ounces), with marked seasonal Historical localities for the riparian Service on February 28, 1996 (61 FR variation (Williams et al. 1992). The woodrat are distributed along the San 7596), were taxa for which information riparian woodrat is predominantly gray Joaquin, Stanislaus, and Tuolumne in possession of the Service indicated and cinnamon above and whitish rivers, and in Corral Hollow in San that proposing to list as endangered or beneath, with white hindfeet. Neotoma Joaquin, Stanislaus, and Merced threatened was possibly appropriate but fuscipes riparia is distinguished from counties (Hooper 1938, Williams 1986). for which conclusive data on biological other subspecies of N. fuscipes by size This range is similar to the presumed vulnerability and threats were not and coloration of the body, tail, ears, or historical range for the riparian brush currently available. In the January 6, feet, in addition to skull measurements rabbit. Thus, prior to the statewide 1989, Notice of Review (54 FR and characteristics (Hooper 1938). reduction of riparian communities by 554), the Service elevated the riparian The following information is taken nearly 90 percent (Katibah 1984), the brush rabbit to a category 1 candidate from a number of studies on Neotoma riparian brush rabbit and woodrat species as a result of more intensive fuscipes, including riparia and related probably occurred throughout the field work by Williams and Basey (1986) subspecies. Mostly active at night, the extensive riparian forests along major that identified only a single remaining woodrat’s diet is diverse and mainly streams flowing onto the floor of the population of this subspecies. Category herbivorous, with leaves, fruits, northern San Joaquin Valley. 1 comprised taxa for which the Service terminal shoots of twigs, flowers, nuts, The only known population of the riparian woodrat occurs in, and currently had substantial information on and fungi comprising the bulk of biological vulnerability and threats to ingested material (Williams et al. 1992). immediately adjacent to, Caswell Memorial State Park, also the site of the support proposals to list them as Females have one to five litters per year endangered or threatened species. The with three to four young each time. only riparian brush rabbit population (Williams 1993). A woodrat population Service retained the riparian brush Reproduction occurs in all months, with rabbit as a category 1 candidate and the fewest pregnancies in December and was reported during the early 1970s near the type locality at Vernalis, but elevated the status of the riparian the most in February. The number of woodrat to category 1 in the November juveniles appearing outside the nest is the current status of the population is unknown (D. Williams 1986, pers. 21, 1991, Animal Notice of Review (56 greatest in July and least in January and FR 58804), based on a reevaluation of February (Williams et al. 1992). comm. 1994). The site of an old record at Corral Hollow, San Joaquin County, the information contained in the study The young are born in stick nest no longer supports suitable habitat (D. conducted by Williams and Basey houses or lodges, which are located on Williams, pers. comm. 1994). Cook (1986). The November 15, 1994, Animal the ground and measure 0.6 to 0.9 (1992) estimated the Caswell Park Notice of Review (59 FR 58987) meters (m) (2 to 3 feet (ft)) high and 1.2 population at 637 woodrats over 102 ha included both subspecies in category 1. to 1.8 m (4 to 6 ft) in diameter. Most (250 ac) of habitat. Williams (1993) The February 28, 1996, combined lodges are positioned over or against estimated a peak population at Caswell Animal and Plant Notice of Review (61 logs (Cook 1992, cited in Williams of 437 animals, based on mean density FR 7596) included both subspecies as 1993). Unoccupied houses can persist of 4.8 woodrats per ha on 91 ha (225 ac) candidates. for 20 to 30 years (Williams 1993). of suitable habitat. Unlike other subspecies, the riparian The processing of this proposed Today, riparian forests of the lower listing rule conforms with the Service’s woodrat occasionally builds nests in San Joaquin River and its tributaries cavities in trees and artificial wood listing priority guidance for fiscal year outside of Caswell Memorial State Park 1997 published in the Federal Register duck nest boxes (Williams 1986). Nest have nearly been eliminated. The on December 5, 1996 (61 FR 64475). The houses usually are occupied by single remaining habitat is small, narrow forest guidance clarifies the order in which the adults. Young seldom disperse far from patches confined within levees. These Service will process rulemakings their natal houses, and nest clusters areas flood completely during major following two related events, the lifting, occupied by related individuals tend to storm events. Because these forest develop in favored habitats. Unlike remnants are small, isolated, and subject on April 26, 1996, of the moratorium on males, females remain in or near natal to periodic prolonged flooding final listings imposed on April 10, 1995 areas throughout their life (Williams et (Williams and Basey 1986), their (Public Law 104–6), and the restoration al. 1992). At Caswell Memorial State capability to support viable populations of significant funding for listing through Park, Williams (1993) reported a mean of these subspecies over the long-term is passage of the omnibus budget density of houses of 8.3 per ha (3.4 per doubtful. Historic habitat and refugia reconciliation law on April 26, 1996, ac), or 757 houses on 91 ha (225 ac) of from flooding in adjacent lands are now following severe funding constraints suitable habitat; occupancy of these mainly cultivated fields, orchards, and imposed by a number of continuing houses was not verified. vineyards, habitats unsuitable for these resolutions between November 1995 In a study of another subspecies of subspecies (Williams and Basey 1986). and April 1996. The guidance calls for Neotoma fuscipes, Linsdale and Tevis Flooding, wildfire, predation, and other giving highest priority to handling (1951, cited in Williams et al. 1992) factors imperil their continued emergency situations (Tier 1) and found that 70 percent of the population existence. second highest priority (Tier 2) to survived less than 1 year, 27 percent resolving the status of proposed listings. survived 2 years, and 3 percent survived Previous Federal Action A lower priority is assigned to resolving 3 years or more. Williams et al. (1992) Federal action on these two species the conservation status of candidate also cited a number of studies that began on September 18, 1985, when the species and processing administrative indicated woodrats are highly Service published the Vertebrate findings on petitions to add species to responsive to habitat alteration, with Wildlife Notice of Review (50 FR the lists or reclassify species from populations fluctuating widely in 37958), which included the riparian threatened to endangered status (Tier 3). response to a variety of perturbations brush rabbit and riparian woodrat as The lowest priority actions are in Tier such as fire, flood, drought, habitat category 2 candidate species. Category 2 4, a category which includes processing modification, and browsing and candidates, a designation discontinued critical habitat determinations, trampling by ungulates. in a Notice of Review published by the delistings, or other types of 62278 Federal Register / Vol. 62, No. 225 / Friday, November 21, 1997 / Proposed Rules reclassifications. Processing of this projects were constructed, much of the and restricted distribution of both the proposed rule is a Tier 3 action. floodplain was livestock pasture (Basey riparian brush rabbit and riparian 1990). Uneven topography on the woodrat increase their vulnerability to Summary of Factors Affecting the floodplains provided escape areas for epidemic diseases, such as tularemia in Species species because some land remained the case of the brush rabbit (Williams Section 4 of the Endangered Species above most flood levels and contained 1988). However, the significance of the Act (16 U.S.C. 1533) and regulations (50 patches of shrubs and trees for cover. threat of disease to the riparian brush CFR part 424) promulgated to Sites like these probably provided rabbit and riparian woodrat is not implement the listing provisions of the refuge from flooding for brush rabbits. known. Act set forth the procedures for adding Williams and Basey (1986) stated that, , gray , long-tailed species to the Federal lists. A species ‘‘virtually all areas outside of flood , raccoons, feral cats and dogs, may be determined to be an endangered control levees now have been cleared, hawks, and owls are known predators of or threatened species due to one or more leveled, and planted to orchards, brush rabbits as well as other small of the five factors described in section vineyards, or annual row crops.’’ , including woodrats 4(a)(1). These factors and their Conversion from pasture to cultivated (Williams 1988, Verner and Boss 1980, application to the riparian brush rabbit fields also eliminated hedge rows and Orr 1940). At currently depleted (Sylvilagus bachmani riparius) and the other residual patches of cover that population levels, predation events riparian woodrat (Neotoma fuscipes provided travel corridors and refuge could significantly affect the survival of riparia) are as follows: sites for the two subspecies. The effects these two subspecies. A. The Present or Threatened of catastrophic flooding are discussed D. The Inadequacy of Existing Destruction, Modification, or further under factor E. Regulatory Mechanisms Curtailment of its Habitat or Range Although brush clearing adversely affected the habitat of the riparian brush Federal, State, and local laws and Both the riparian brush rabbit and the rabbit and riparian woodrat populations regulations have not proven adequate to riparian woodrat inhabit riparian at Caswell State Park in the mid-1980s curb habitat losses for the riparian brush forests, and each has been extirpated (Williams 1986), the State Park rabbit and riparian woodrat. The from all of its historical range except for populations are no longer directly National Environmental Policy Act a single population at Caswell Memorial threatened by brush clearing, tree (NEPA) and section 404 of the Clean State Park along the . cutting, or the conversion of land to Water Act (CWA) represent the primary Katibah (1984) estimated that only agricultural uses. Because the State Park Federal laws that potentially may afford 41,300 ha (102,000 ac) remain of an harbors the only known populations of some protection for these species. estimated 373,000 ha (921,600 ac) of these species, these activities outside of However, neither NEPA nor the CWA pre-settlement riparian forest in the park do not pose a direct threat to protect candidate species. Moreover, California’s Central Valley, a reduction either species. Such activities continue, brush clearing, tree cutting, and the of 89 percent. Moreover, nearly one-half however, to eliminate and fragment conversion to agricultural uses that are of the remaining forests are in a patches of remnant habitat within the adversely affecting these species are disturbed and/or degraded condition, historic range of these species. generally unregulated at any level of and it is likely that the majority of the government. For example, pursuant to rest have been and continue to be B. Overutilization for Commercial, 33 CFR 323.4, the U.S. Army Corps of heavily impacted by human activities. Recreational, Scientific, or Educational Engineers (Corps) has promulgated This elimination and modification of Purposes regulations that exempt some farming, riparian forests along valley floor river Overutilization is not known to be a forestry, and maintenance activities systems was attributed to—urban; problem for either species. However, the from the regulatory requirements of commercial, and agricultural very small population at the remaining section 404. development; wood cutting; land site makes the riparian brush rabbit Caswell Memorial State Park has a reclamation and flood control activities; vulnerable to extinction from management plan for the riparian brush groundwater pumping; river recreational hunting and collection for rabbit that provides some measure of channelization; dam construction; and scientific or other purposes. The brush protection to the population. This plan water diversions (Katibah 1984). rabbit (Sylvilagus bachmani) is does not address the riparian woodrat. Several land use practices and related designated as a resident small game Despite the existence of a management human activities have contributed to the species in California and is hunted from plan, both the riparian brush rabbit and decline of the riparian brush rabbit and July 1 through January 30 with a daily woodrat remain vulnerable to threats riparian woodrat throughout their bag limit of five animals (Williams and and hazards originating outside of the historical ranges. During the past 10 to Basey 1986). Hunting regulations set by park (see factor E below). 20 years, cultivation has expanded the California Fish and Game The California Environmental Quality along the floodplains of the main Commission do not distinguish the Act (CEQA) requires a full public tributaries of the lower San Joaquin riparian brush rabbit from other disclosure of the potential River system (Basey 1990). Increased subspecies of S. bachmani. Therefore, environmental impact of proposed habitat conversion to agricultural uses riparian brush rabbits that disperse projects. The public agency with has resulted from the recent beyond the boundaries of Caswell primary authority or jurisdiction over construction of the following dams on Memorial State Park (as they may, the project is designated as the lead tributaries that individually and especially during times of flooding) face agency, and is responsible for collectively altered the timing, a potential threat of being hunted. conducting a review of the project and frequency, duration, and intensity of consulting with other agencies flooding—Exchequer Dam on the C. Disease or Predation concerned with resources affected by Merced River, New Melones Dam on the All rabbits, including cottontails, are the project. Section 15065 of the CEQA Stanislaus River, and New Don Pedro known to be susceptible to a variety of guidelines requires a finding of Dam on the Tuolumne River. Before diseases that sometimes reach epidemic significance if a project has the potential these dams and other flood control proportions. The small population size to ‘‘reduce the number or restrict the Federal Register / Vol. 62, No. 225 / Friday, November 21, 1997 / Proposed Rules 62279 range of a rare or endangered plant or river levees, and offers less habitat value visitors (K. Graham, California Dept. of animal.’’ Species that are eligible for for these subspecies during periods of Parks and Recreation in Kelley, in litt. listing as rare, threatened, or high stream flow. This habitat is 1997a). endangered but are not so listed are routinely flooded during the wet winter The riparian woodrat also is given the same protection as those season. Major flooding likely drowns a vulnerable to flooding, although its species that are officially listed with the significant portion of the populations, ability to nest in trees and wood duck State. Once significant impacts are eliminates foraging habitat and shelter nest boxes (Williams 1993) suggests identified, the lead agency has the for prolonged periods, and exposes some ability to avoid the negative effects option to require mitigation for effects brush rabbits and woodrats to increased of flooding. Nonetheless, the large through changes in the project or to predation by concentrating the majority of nests occur on the ground decide that overriding considerations population on high ground and in areas (Williams 1993, pers. comm. 1994). make mitigation infeasible. In the latter with little or no cover. Only about 3.6 After the January 1997 floods left case, projects may be approved that ha (8.9 ac) in five small areas of the Caswell Memorial State Park under 0.6– cause significant environmental 104.5 ha (258 ac) park showed regular 3.0 m (2–10 ft) of water for 2 to 7 weeks, damage, such as destruction of use by brush rabbits in the summer of trapping and survey efforts in May 1997 endangered species. Protection of listed 1986 after floods in February and March resulted in capture of only eight species through CEQA is, therefore, at of that year (Williams 1988). woodrats (D. Williams, in litt. 1997). the discretion of the lead agency Williams (1986) found that riparian Trapping efforts of similar intensity in involved. The CEQA provides that when brush rabbits sometimes gain temporary 1993 resulted in the capture of 57 overriding social and economic shelter from floods by climbing trees, woodrats (D. Williams, in litt. 1997). considerations can be demonstrated, but he estimated that only 10 or fewer Severe flooding could eliminate the project proposals may go forward, even individual rabbits survived the severe Caswell Memorial State Park in cases where the continued existence winter flooding in 1985–86 (Williams populations of both the riparian brush of the species may be jeopardized, or 1988). Basey (1990) concluded, based on rabbit and the riparian woodrat and where adverse impacts are not mitigated visual sightings and pellet surveys, that result in the extinction of these to the point of insignificance. this same riparian brush rabbit subspecies. Furthermore, proposed revisions to population may have been reduced to Flooding is also likely to increase CEQA guidelines, if made final, may fewer than 15 to 20 individuals during competition between riparian brush weaken protections for threatened, flooding in 1983. rabbits and desert cottontails, a species endangered, and other sensitive species. The floods of January 1997 left about that occurs in a wider range of habitats, The California Endangered Species 85 percent of Caswell Memorial State including riparian zones, within the Act affords the riparian brush rabbit Park under 0.6–3.0 m (2–10 ft) or more same geographic area (Basey 1990). some conservation benefits. The animal of water in most areas for at least 2 Riparian brush rabbits cannot return to was listed as an endangered species by weeks and, in lower areas, for as long as their home areas if displaced more than the State of California in May 1994. 7 weeks. During efforts in January to about 340 m (1,116 ft). Desert Although this State law provides a locate and potentially rescue stranded cottontails, in contrast, may return measure of protection to the species, riparian brush rabbits, only a single home when displaced as much as 4.8 resulting in the formulation of rabbit pellet was found (D. Williams, in kilometers (3 miles). Therefore, if mitigation measures to reduce or offset litt. 1997). In areas of the park searched displaced by flooding more than about impacts for any projects proposed in visually in March 1997, no rabbits or 340 m (1,116 ft) from their home areas, riparian brush rabbit habitat, this law is pellets were found, although searchers riparian brush rabbits may be stranded not adequate to prevent the ongoing loss did find two mounds containing fresh in habitats where desert cottontails have of riparian habitat. Many of the threats grass. Such mounds, or ‘‘forms’’ are a competitive advantage. facing the riparian brush rabbit and the typically made by rabbits. In April 1997, The number of individuals in the sole riparian woodrat (see factor E below) are searchers found two rabbit fecal pellets, population of each subspecies is now not amenable to management without but no other sign of rabbits or woodrat sufficiently low that the effects of supplementing the depleted habitat base activity. Trapping surveys were initiated inbreeding may result in the expression upon which these species depend. in early May, well after flood waters had of deleterious genes in the population Moreover, State listing does not provide receded, in hopes that any surviving (Gilpin 1987). Deleterious genes reduce a nexus with Federal agencies, such as rabbits would be located. During 22 individual fitness in various ways, the the Corps, that regulate flood control nights of trapping, no rabbits were most typical being decreased and other activities in waters of the caught, one rabbit was sighted, and at survivorship of young. Small United States. another location, fresh rabbit tracks populations are also more at risk due to were found (D. Williams, in litt. 1997). the effects of genetic drift, a decrease in E. Other Natural or Manmade Factors In comparison, during trapping efforts genetic variation due to random changes Affecting its Continued Existence of similar intensity in January 1993, 41 in gene frequency from one generation Random events such as flooding or brush rabbits were captured and several to the next. This reduction of variability fire may be more critical than genetic rabbits were sighted (D. Williams, in litt. within a population limits the ability of considerations to the survival of species 1997). A significant increase in brush that population to adapt to (Shaffer 1987, Gilpin 1987). This is rabbit sign was noted during surveys environmental changes. especially true for taxa, like the riparian after May 30, 1997, including the Although Caswell Memorial State brush rabbit and woodrat, that are finding of four separate groups of fecal Park provides protection to the riparian represented by only one or a few small, pellets, two separate groups of dust brush rabbit and the riparian woodrat isolated populations. In such cases, baths with rabbit tracks, about a dozen against some threats, the park is also a little or no possibility of recolonization rabbit runways, and one rabbit sighted recreational facility and consequently exists if a chance environmental or by spotlight (P. Kelly, San Joaquin faces an increased threat of human- human-caused catastrophe affects the Valley Endangered Species Recovery caused wildfires that may kill both the population. Riparian habitat at Caswell Program, in litt. 1997a, 1997b). Two riparian brush rabbit and woodrat and State Park is confined entirely within sightings were also reported by park destroy their habitat (Basey 1990). The 62280 Federal Register / Vol. 62, No. 225 / Friday, November 21, 1997 / Proposed Rules brushy areas most vulnerable to fire are Section 4(a)(3) of the Act, as refrain jeopardizing the continued important habitat for brush rabbits and amended, and implementing regulations existence of a listed species and from woodrats (Basey 1990). Between 1975 (50 CFR 424.12) require that, to the contributing to the destruction or and 1987, 10 wildfires were reported maximum extent prudent and adverse modification of critical habitat. within the park. After a large area determinable, the Secretary designate However, implementing regulations (50 burned in 1981, no evidence of brush critical habitat at the time the species is CFR part 402) define ‘‘jeopardize the rabbits was found in the area (Basey determined to be endangered or continued existence of’’ and 1990). The extent to which recreational threatened. Service regulations (50 CFR ‘‘destruction or adverse modification of’’ activities, such as vehicular and 424.12(a)) state that critical habitat is in virtually identical terms. Jeopardize pedestrian traffic, dogs, etc., also may not determinable if information the continued existence of means to affect habitat quality is unknown. sufficient to perform required analyses engage in an action ‘‘that reasonably The Service has carefully assessed the of the impacts of the designation is would be expected . . . to reduce best scientific and commercial lacking or if the biological needs of the appreciably the likelihood of both the information available regarding the past, species are not sufficiently known to survival and recovery of a listed present, and future threats faced by permit identification of an area as species.’’ Destruction or adverse these subspecies in determining to critical habitat. Section 4(b)(2) of the modification means an ‘‘alteration that propose this rule. Based on this Act requires the Service to consider appreciably diminishes the value of evaluation, the preferred action is to list economic and other relevant impacts of critical habitat for both the survival and the riparian brush rabbit (Sylvilagus designating a particular area as critical recovery of a listed species.’’ Common bachmani riparius) and the riparian habitat on the basis of the best scientific to both definitions is an appreciable woodrat (Neotoma fuscipes riparia) as data available. The Secretary may detrimental effect on both survival and endangered. The single, small exclude any area from critical habitat if recovery of a listed species, in the case population of each of these two taxa he determines that the detriments of of critical habitat by reducing the value render them vulnerable to a wide array such exclusion outweigh the of the habitat so designated. In this case, of threats. Increases in human conservation benefits, unless to do such because each species exists as a single, population and pressures associated would result in the extinction of the small population, it is even clearer that with urban development, as well as the species. Service regulations (50 CFR any activity that would destroy or inadequacy of existing regulatory 424.12(a)(1)) state that designation of adversely modify their habitat would mechanisms have led to a significant critical habitat is not prudent when one also likely jeopardize their continued loss of historic habitat and reduced or both of the following situations existence. For this reason, designation exist—(1) The species is threatened by of critical habitat provides no benefit these subspecies to the brink of taking or other human activity, and beyond that conferred by listing. extinction. Both subspecies currently identification of critical habitat can be face threats from floods, wildfires, and Available Conservation Measures expected to increase the degree of threat predation. Riparian forests, the habitat to the species, or (2) such designation of Conservation measures provided to type upon which the riparian brush critical habitat would not be beneficial species listed as endangered or rabbit and woodrat depend, are so to the species. threatened under the Act include depleted along the San Joaquin River The Service finds that the designation recognition, recovery actions, system that all habitat remnants outside of critical habitat for the riparian brush requirements for Federal protection, and of Caswell Memorial State Park are too rabbit and riparian woodrat is not prohibitions against certain activities. small and isolated to support viable prudent because such designation Recognition through listing results in populations of these animals. Thus, would not provide any additional public awareness and conservation even if the few remaining unsurveyed benefit to the two species beyond that actions by Federal, State, and local tracts of habitat do harbor these conferred by listing them as endangered agencies, private organizations, and subspecies, the status of the riparian species. The basis for these conclusions, individuals. The Act provides for brush rabbit and woodrat would not including the factors considered in possible land acquisition and change and listing of these taxa as weighing the benefits against the cooperation with the States and requires endangered would be warranted. detriments of designation, is explained that recovery actions be carried out for Critical Habitat below. all listed species. The protection As discussed above, the sole site required of Federal agencies and the Critical habitat is defined in section 3 currently occupied by the riparian brush prohibitions against taking and harm are of the Act as: (i) the specific areas rabbit and the riparian woodrat is discussed, in part, below. within the geographical area occupied within Caswell Memorial State Park, Section 7(a) of the Act requires by a species, at the time it is listed in and no other currently suitable habitat Federal agencies to evaluate their accordance with the Act, on which are for these species is known to exist actions with respect to any species that found those physical or biological within their historical ranges (Basey is proposed or listed as endangered or features (I) essential to the conservation 1990). State Park designation provides threatened and with respect to its of the species and (II) that may require protection to the natural resources of the critical habitat, if any is being special management considerations or park, such as through hunting designated. Regulations that implement protection and; (ii) specific areas prohibitions, and facilitates appropriate this interagency cooperation provision outside the geographical area occupied resource management. This protection of the Act are codified at 50 CFR part by a species at the time it is listed, upon would not be increased through critical 402. Section 7(a)(4) of the Act requires a determination that such areas are habitat designation. Federal agencies to confer with the essential for the conservation of the A high potential for Federal Service on any action that is likely to species. ‘‘Conservation’’ means the use involvement exists because of the flood jeopardize the continued existence of a of all methods and procedures needed control activities of the Corps and water species proposed for listing or result in to bring the species to the point at regulation activities of the U.S. Bureau destruction or adverse modification of which listing under the Act is no longer of Reclamation (BOR). Section 7 of the proposed critical habitat. If a species is necessary. Act requires that Federal agencies listed, section 7(a)(2) requires Federal Federal Register / Vol. 62, No. 225 / Friday, November 21, 1997 / Proposed Rules 62281 agencies to insure that activities they would be suffered if such relief were not (5) Application of pesticides in authorize, fund, or carry out are not available. violation of label restrictions which likely to jeopardize the continued It is the policy of the Service, results in death of or injury to riparian existence of the species or to destroy or published in the Federal Register on brush rabbits or riparian woodrats; adversely modify its critical habitat. If a July 1, 1994 (59 FR 34272), to identify (6) Discharging or dumping toxic Federal action may affect a listed to the maximum extent practicable at chemicals, silt, or other pollutants (i.e., species or its critical habitat, the the time a species is listed those sewage, oil, or gasoline) which results in responsible Federal agency must enter activities that would or would not death of or injury to riparian brush into formal consultation with the constitute a violation of section 9 of the rabbits or riparian woodrats; Service. Act. The intent of this policy is to (7) Interstate and foreign commerce Federal actions that may require increase public awareness of the effect (commerce across State lines and conference or consultation with the of this listing on proposed and ongoing international boundaries) and import/ Service include the funding or activities within the range of the two export (as discussed earlier in this authorization by the Corps of levee and species. The Service believes that, based section) without prior obtainment of an channel maintenance projects along the on the best available information, the endangered species permit. (Permits to lower San Joaquin River and its following actions will not result in a conduct these activities are available for tributaries and the operation of violation of section 9: purposes of scientific research and upstream dams by the Corps and the (1) Possession of legally acquired enhancement of propagation or survival BOR. riparian brush rabbits and riparian of the species.) Listing the riparian brush rabbit and woodrats; Questions regarding whether specific riparian woodrat as endangered species (2) Light to moderate livestock grazing activities will constitute a violation of would also provide for the development in riparian brush rabbit and riparian section 9 should be directed to the Field of a recovery plan (or plans) for the taxa. woodrat habitat that prevents or Supervisor of the Service’s Sacramento Such a plan would establish a minimizes the encroachment of invasive Field Office (see ADDRESSES section). framework for State, Federal, and local plant species and does not significantly Requests for copies of the regulations governmental efforts to coordinate reduce shrub cover; concerning listed wildlife and general (3) Federally approved projects, such conservation planning for these animals. inquiries regarding prohibitions and as those involving the discharge of fill The plan would set recovery priorities permits may be addressed to the U.S. material, draining, ditching, tiling, pond and estimate costs of various tasks Fish and Wildlife Service, Ecological construction, stream channelization or necessary to accomplish them. The plan Services, Endangered Species Permits, diversion, or alteration of surface or also would describe site specific 911 N.E. 11th Avenue, Portland, ground water into or out of riparian management actions necessary to , 97232–4181 (telephone 503/ areas (i.e., due to roads, impoundments, achieve conservation and survival of 231–2063; facsimile 503/231–6243). discharge pipes, stormwater detention these subspecies. basins, etc.), when conducted in Public Comments Solicited The Act and implementing accordance with any reasonable and The Service intends that any final regulations set forth a series of general prudent measures given by the Service action resulting from this proposal will prohibitions and exceptions that apply in accordance with section 7 of the Act. be as accurate and as effective as to all endangered wildlife. These Activities that the Service believes possible. Therefore, comments or prohibitions, codified at 50 CFR 17.21, could potentially harm the riparian suggestions from the public, other in part, make it illegal for any person brush rabbit and the riparian woodrat concerned governmental agencies, the subject to the jurisdiction of the United and result in ‘‘take’’ include, but are not scientific community, industry, or any States to take (includes harass, harm, limited to: other interested party concerning this pursue, hunt, shoot, wound, kill, trap, (1) Unauthorized collecting or proposed rule are hereby solicited. The capture, collect; or to attempt any of handling of the species; Service will also comply with its policy these), import or export, ship in (2) Unauthorized destruction/ on peer review, published on July 1, interstate commerce in the course of alteration of occupied habitat of the 1994 (59 FR 34270), in the processing of commercial activity, or sell or offer for riparian brush rabbit or riparian this proposed rule. Comments sale in interstate or foreign commerce woodrat through the discharge of fill particularly are sought concerning: any such species. It also is illegal to material, draining, ditching, tiling, pond (1) Biological, commercial trade, or possess, sell, deliver, carry, transport, or construction, stream channelization or other relevant data concerning any ship any such wildlife that has been diversion, or the alteration of surface or threat (or lack thereof) to these species; taken illegally. Certain exceptions apply ground water flow into or out of riparian (2) The location of any additional to agents of the Service and State habitat of these two species (i.e., due to populations of these species and the conservation agencies. the construction/installation of roads, reasons why any habitat should or Permits may be issued to carry out impoundments, discharge pipes, should not be determined to be critical otherwise prohibited activities stormwater detention basins, etc.); habitat as provided by section 4 of the involving endangered wildlife under (3) Any activity constituting a Act; certain circumstances. Regulations violation of discharge permits which (3) Additional information concerning governing permits are codified at 50 results in death of or injury to riparian the range, distribution, and population CFR 17.22 and 17.23. Such permits are brush rabbits or riparian woodrats or size of these species; available for scientific purposes, to which results in degradation of their (4) Current or planned activities in the enhance the propagation or survival of occupied habitat; subject area and their possible impacts the species, and/or for incidental take in (4) Burning, cutting, or mowing of on these species; and, connection with otherwise lawful riparian vegetation which results in (5) Information on biological activities. Under some circumstances, death of or injury to riparian brush considerations, land ownership, habitat permits may be issued for a specified rabbits or riparian woodrats or which restoration potential, flood control period for species in trade in order to results in degradation of their occupied constraints, and other factors that may relieve undue economic hardship that habitat; lead to a critical habitat determination. 62282 Federal Register / Vol. 62, No. 225 / Friday, November 21, 1997 / Proposed Rules

Final promulgation of the regulations amended. A notice outlining the recordkeeping requirements, for these species will take into Service’s reasons for this determination Transportation. consideration the comments and any was published in the Federal Register additional information received by the on October 25, 1983 (48 FR 49244). Proposed Regulation Promulgation Service, and such communications may Required Determinations Accordingly, the Service hereby lead to a final regulation that differs proposes to amend part 17, subchapter The Service has examined this from this proposal. B of chapter I, title 50 of the Code of The Act provides for one or more regulation under the Paperwork Federal Regulations, as set forth below: public hearings on this proposal, if Reduction Act of 1995 and found it to requested. Requests must be received contain no information collection PART 17Ð[AMENDED] within 45 days of the date of publication requirements. of the proposal in the Federal Register. References Cited 1. The authority citation for Part 17 Such requests must be made in writing continues to read as follows: and be addressed to the Field A complete list of all references cited Supervisor, Sacramento Field Office herein, as well as others, is available Authority: 16 U.S.C. 1361–1407; 16 U.S.C. (see ADDRESSES section). from the Field Supervisor, Sacramento 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Field Office (see ADDRESSES section). 625, 100 Stat. 3500, unless otherwise noted. National Environmental Policy Act Authors. The primary authors of this The Fish and Wildlife Service has proposed rule are Peter Sorensen and 2. Section 17.11(h) is amended by determined that Environmental Diane Windham, U.S. Fish and Wildlife adding the following, in alphabetical Assessments and Environmental Impact Service, Sacramento Field Office (see order under MAMMALS, to the List of Statements, as defined under the ADDRESSES section), telephone 916/979– Endangered and Threatened Wildlife: authority of the National Environmental 2725. § 17.11 Endangered and threatened Policy Act of 1969, need not be wildlife. prepared in connection with regulations List of Subjects in 50 CFR Part 17 adopted pursuant to section 4(a) of the Endangered and threatened species, * * * * * Endangered Species Act of 1973, as Exports, Imports, Reporting and (h) * * *

Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

MAMMALS

******* Rabbit, riparian Sylvilagus bachmani U.S.A. (CA) ...... Entire ...... E ...... NA NA brush. riparius.

******* Woodrat, riparian Neotoma fuscipes U.S.A. (CA) ...... Entire ...... E ...... NA NA (San Joaquin Val- riparia. ley).

*******

Dated: October 30, 1997. Jamie Rappaport Clark, Director, U.S. Fish and Wildlife Service. [FR Doc. 97–30553 Filed 11–20–97; 8:45 am] BILLING CODE 4310±55±P