61916 Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Rules and Regulations requirements, as described above, it is DEPARTMENT OF THE INTERIOR reduced. Approximately 15 percent, or not subject to RFA. 12,142 hectares (ha) (30,000 acres), of Fish and Wildlife Service the historical tidal marshland habitat G. Submission to Congress and the within the Bay area General Accounting Office 50 CFR Part 17 remains (Dedrick 1989). With the exception of the San Under 5 U.S.C. 801(a)(1)(A), added by RIN 1018±AD14 Francisco Bay area, the mountainous the Small Business Regulatory Endangered and Threatened Wildlife coast of and the narrow Enforcement Fairness Act of 1996 and ; Determination of continental shelf provide few areas that (SBREFA), EPA submitted, by the date Endangered Status for Two Tidal are suitable for tidal marsh development of publication of this rule, a report Marsh PlantsÐCirsium hydrophilum (MacDonald 1990). Coastal salt marshes containing this rule and other required var. hydrophilum (Suisun Thistle) and are found along sheltered margins of information to the U.S. Senate, the U.S. Cordylanthus mollis ssp. mollis (Soft shallow bays, estuaries, or lagoons, in House of Representatives and the Bird's-Beak) From the San Francisco low lying areas that are subject to Comptroller General of the General Bay Area of California periodic inundation by salt water. Accounting Office. This rule is not a Brackish marshes occur at the interior ‘‘major rule’’ as defined by 5 U.S.C. AGENCY: Fish and Wildlife Service, margins of coastal bays, estuaries, or 804(2), as amended. Interior. lagoons where fresh water sources ACTION: Final rule. (streams and rivers) enter salt marshes. H. Paperwork Reduction Act Brackish marshes are similar to salt SUMMARY: The U.S. Fish and Wildlife marshes but differ in the degree of water This rule does not contain any Service (Service) determines information collection requirements and soil salinity. Brackish marshes are endangered status pursuant to the less saline than salt marshes. Salinity which require OMB approval under the Endangered Species Act of 1973, as levels vary with time, tides, and the Paperwork Reduction Act (44 U.S.C. amended (Act), for two plants— amount of freshwater inflow. Vegetation 3501 et seq.) hydrophilum var. hydrophilum (Suisun communities in salt and brackish thistle) and Cordylanthus mollis ssp. I. Judicial Review marshes often occur in distinct zones, mollis (soft bird’s-beak). These species depending on the frequency and length Under CAA section 307(b)(1), a are restricted to salt and brackish tidal of tidal flooding. Cirsium hydrophilum petition to review today’s action may be marshes within the San Francisco Bay var. hydrophilum and Cordylanthus filed in the Court of Appeals for the area in northern California. Habitat mollis ssp. mollis are restricted to a District of Columbia within 60 days of conversion, water pollution, changes in narrow tidal band, typically in higher November 20, 1997. salinity, indirect effects of urbanization, elevational zones within larger tidal mosquito abatement activities marshes that have fully developed tidal Dated: November 14, 1997. (including off-road vehicle use), channel networks. These plants usually Carol M. Browner, competition with non-native vegetation, do not occur in smaller fringe tidal Administrator. insect predation, erosion, and other marshes that are generally less than 100 [FR Doc. 97–30520 Filed 11–19–97; 8:45 am] human-caused actions threaten these meters (m) (300 feet (ft)) in width, or in BILLING CODE 6560±50±P two species. This rule implements the non-tidal areas. Federal protection and recovery provisions afforded by the Act for these Discussion of the Two Species ENVIRONMENTAL PROTECTION plants. Asa Gray (1888) originally described AGENCY EFFECTIVE DATE: December 22, 1997. Cirsium hydrophilum var. hydrophilum as Cnicus breweri var. vaseyi. ADDRESSES: The complete file for this 40 CFR Part 81 rule is available for inspection, by Subsequent authors treated the taxon as appointment, during normal business Carduus hydrophilus (Greene 1892), Clean Air Act Promulgation of hours at the U.S. Fish and Wildlife Cirsium hydrophilum (Jepson 1901), and Cirsium vaseyi var. hydrophilum Extension of Attainment Date for the Service, Sacramento Fish and Wildlife (Jepson 1925). John Thomas Howell Portland, Maine, Moderate Ozone Office, 3310 El Camino, Suite 130, (1959) concluded that Jepson’s Cirsium Nonattainment Area Sacramento, California 95821–6340. hydrophilum and Cirsium vaseyi of the CFR Correction FOR FURTHER INFORMATION CONTACT: Mt. Tamalpais area in Marin County, Kirsten Tarp (telephone 916/979–2120) California are varieties of a single In Title 40 of the Code of Federal and Matthew D. Vandenberg (telephone species, Cirsium hydrophilum. Regulations, parts 81 to 85, revised as of 916/979–2752), staff biologists at the According to the rules for botanical July 1, 1997, make the following Sacramento Fish and Wildlife Office nomenclature, when a new variety is correction: (see ADDRESSES section); FAX 916/979– described in a species not previously 2723. divided into intraspecific taxa, an On page 180, in § 81.320, in the table SUPPLEMENTARY INFORMATION: autonym (automatically created name) under the heading ‘‘Maine—Ozone’’, is designated. In this case, the autonym Background footnote 2 is corrected to read is Cirsium hydrophilum var. ‘‘Attainment date extended to November Cirsium hydrophilum var. hydrophilum. 15, 1997.’’. hydrophilum (Suisun thistle) and Cirsium hydrophilum var. BILLING CODE 1505±01±D Cordylanthus mollis ssp. mollis (soft hydrophilum is a perennial herb in the bird’s-beak) occur in salt and brackish aster family (). Slender, erect tidal marshes fringing San Pablo and stems 1.0 to 1.5 m (3.0 to 4.5 ft) tall are Suisun Bays in the San Francisco Bay well branched above. The spiny leaves area of northern California. Since 1850, are deeply lobed. The lower leaves have this habitat has been drastically ear-like basal lobes; the upper leaves are Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Rules and Regulations 61917 reduced to narrow strips with strongly (Heller 1907). Tsan-Iang Chuang and still existed. Nine sites are presumed to spine-toothed margins. Pale lavender- Larry Heckard (1973) treated still exist (California Natural Diversity rose flower heads, 2.0 to 2.5 centimeters Cordylanthus mollis and Cordylanthus Data Base (CNDDB) 1996; Jake Ruygt, (cm) (1 inch (in.)) long, occur singly or hispidus as subspecies of a single California Native Society (CNPS), in loose groups. The of the flower species (Cordylanthus mollis) with in litt. 1996). The type locality at Mare heads have a distinct green, glutinous Cordylanthus mollis ssp. mollis Island for Cordylanthus mollis ssp. ridge on the back that distinguishes recognized as the autonym. mollis was destroyed by development Cirsium hydrophilum var. hydrophilum Cordylanthus mollis ssp. mollis is an and is now a dredge disposal site from other Cirsium species in the area. annual herb of the snapdragon family (CNDDB 1994). A second occurrence, Cirsium hydrophilum var. hydrophilum (Scrophulariaceae) that grows 25 to 40 last seen in 1981 near Martinez in flowers between July and September. cm (10 to 16 in.) tall. It is sparingly Contra Costa and Solano Counties, was Cirsium hydrophilum var. branched from the middle and above. dredged, filled, diked, and is now a hydrophilum is restricted to Suisun Cordylanthus mollis ssp. mollis is a marina (Stromberg 1986, CNDDB 1994). Marsh in Solano County. In 1975, the hemiparasite (i.e., partially parasitic) The remaining nine occurrences are plant was reported as possibly extinct that extracts water and nutrients by widely scattered throughout coastal salt because it had not been collected for attaching enlarged root structures to the or brackish tidal marshes fringing San about 15 years. Extensive surveys found roots of other plants (Chuang and Pablo and Suisun Bays, in Contra Costa, the thistle at two locations within Heckard 1971). The foliage is grayish- Napa, and Solano Counties (CNDDB Suisun Marsh (Brenda Grewell, green (often tinged a deep red) and 1994; Brenda Grewell, in litt. 1993; Jake California Department of Water hairy. The oblong to lance-shaped Ruygt, in. litt. 1996). Three sites, Pt. Resources (CDWR), pers. comm. 1993), leaves are 1.0 to 2.5 cm (0.4 to 1.0 in.) Pinole, Rush Ranch, and Joice Island however, unoccupied suitable habitat long, the lower leaves entire and the Bridge, have very limited habitat and for Cirsium hydrophilum var. upper with one to three pairs of leaf cover less than 0.4 ha (1 acre) each. The hydrophilum exists outside these sites lobes. The consists of population at Fagan Slough covers in the upper reaches of tidal marshes in spikes 5 to 15 cm (2 to 6 in.) long. A approximately 1.2 ha (3 acres). The two Solano County. Collectively, the floral with two to three pairs of largest populations are located at Hill occurrences of Cirsium hydrophilum lobes occurs immediately below each Slough and at Concord Naval Weapons var. hydrophilum total a few thousand inconspicuous white or yellowish-white Station, each covering approximately 4 individuals (Brenda Grewell, pers. flower. The flowers have only two ha (10 acres). The entire distribution of comm. 1993) occupying a total area of functional stamens. The narrow ovoid Cordylanthus mollis ssp. mollis less than 1 acre. Cirsium hydrophilum seed capsule is 6 to 10 millimeters (mm) currently is restricted to about 12 ha (31 var. hydrophilum grows in the upper (0.2 to 0.4 in.) long and bears 20 to 30 acres) of occupied habitat (Jake Ruygt, reaches of tidal marshes associated with dark brown seeds. Flowering occurs 1994 and in litt. 1996). The total number Typha angustifolia (narrow-leaf cattail), between July and September. of individuals reported among Scirpus americanus (Olney’s bulrush), Cordylanthus mollis ssp. mollis is populations varies from 1 at the smallest Juncus balticus (Baltic rush), and distinguished from another site to 150,000 plants at the largest site. Distichlis spicata (saltgrass). One Cordylanthus found nearby (C. Of the remaining nine sites, one population is found on State land under maritimus ssp. palustris) by its two (McAvoy) has only 23 plants. Most sites the jurisdiction of the California functional stamens (C. maritimus ssp. have between 1,000 and 6,000 Department of Fish and Game (CDFG) palustris has four) and by its bracts with individuals (Jake Ruygt 1994; CNDDB and another population is on Solano two to three pairs of lateral lobes (C. 1996). Individual populations fluctuate County Farmland and Open Space maritimus ssp. palustris has a pair of in size from year to year, as is typical Foundation lands. No active short teeth on the floral bracts). of annual plants. Cordylanthus mollis management is occurring at either Cordylanthus mollis ssp. mollis is ssp. mollis occurs primarily on private location (Neil Havlik, Solano County closely related to Cordylanthus mollis or non-Federal land; the second largest Farmland and Open Space Foundation, ssp. hispidus and can be differentiated occurrence is found on Department of pers. comm. 1993; Ann Howald, CDFG, most consistently from Cordylanthus Defense (U.S. Navy) land. Habitat pers. comm. 1993). Habitat conversion mollis ssp. hispidus on spike length and conversion and fragmentation, water and fragmentation, indirect effects from seed size. pollution, increases in salinity of tidal urban development, increased salinity, Cordylanthus mollis ssp. mollis is marshes due to upstream withdrawals of projects that alter the natural tidal found predominantly in the upper fresh water, projects that alter the regime, mosquito abatement activities, reaches of salt grass-pickleweed natural tidal regime, indirect effects of and competition with non-native plants, marshes at or near the limits of tidal urbanization, mosquito abatement threaten this taxon. The highly action (Stromberg 1986). It is associated activities (including off-road vehicle restricted distribution of Cirsium with Salicornia virginica (Virginia use), erosion, competition with non- hydrophilum var. hydrophilum glasswort), Distichlis spicata, Jaumea native vegetation, insect predation, and increases its susceptibility to carnosa (fleshy jaumea), Frankenia other random events threaten the catastrophic events such as pest salina (alkali heath), and Triglochin remaining occurrences of Cordylanthus outbreaks, severe drought, oil spills, or maritima (arrow-grass) (Stromberg mollis ssp. mollis. other natural or human caused disasters. 1986). There have been 21 reported The CDWR has conducted surveys for Charles Wright collected the type locations of Cordylanthus mollis ssp. Cordylanthus mollis ssp. mollis and specimen of Cordylanthus mollis ssp. mollis. Two sites, Denverton and Cirsium hydrophilum var. hydrophilum, mollis in November 1855, on Mare Berkeley, were erroneous locations. Five and these surveys have not been limited Island in San Francisco Bay. Asa Gray sites (Mare Island, Martinez, Burdell to known historic populations. The (1868) published the original Station, Bentley Wharf, and Antioch CDWR has surveyed potential habitat description, using the name Bridge) have been extirpated by habitat throughout Suisun Marsh, searched Cordylanthus mollis. Later botanists loss or modification. Five other sites portions of the potential habitat along treated the taxon as Adenostegia mollis surveyed in 1993 no longer had the the Contra Costa shoreline, has assisted (Greene 1891) and Chloropyron molle plants, although some potential habitat with searches downstream of Suisun 61918 Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Rules and Regulations

Bay in the Carquinez Strait and Napa 1983, the Service published a emergency situations (Tier 1) and marshes, and has surveyed diked supplement to the Notice of Review (48 second highest priority (Tier 2) to wetlands managed for waterfowl. FR 53640); there were no changes to resolving the listing status of Despite these surveys, the CDWR has these taxa in this supplement. outstanding proposed listings. Tier 3 found no new populations since their The plant notice was revised again on includes the processing of new original data submittal in 1993 (Randall September 27, 1985 (50 FR 39526), proposed listings for species facing high Brown in. litt. 1996). February 21, 1990 (55 FR 6184), and magnitude threats, and processing September 30, 1993 (58 FR 51144). In administrative findings on petitions. Previous Federal Action these three notices Cirsium Tier 4 includes the processing of critical Federal government actions on the hydrophilum var. hydrophilum and habitat designations. This final rule falls two plants began as a result of section Cordylanthus mollis ssp. mollis were under Tier 2. 12 of the Act, which directed the included as category 1 candidate This rule has been updated to reflect Secretary of the Smithsonian Institution species. On February 28, 1996, the any changes in distribution, status and to prepare a report on those plants Service published a Notice of Review in threats since the effective date of the considered to be endangered, the Federal Register (61 FR 7596) that listing moratorium, and to incorporate threatened, or extinct in the United discontinued the use of candidate information obtained through the public States. This report, designated as House categories and considered the former comment period. This additional Document No. 94–51, was presented to category 1 candidates as simply information was not of a nature to alter Congress on January 9, 1975, and listed ‘‘candidates’’ for listing purposes. the Service’s decision to list the species. Cirsium hydrophilum var. hydrophilum Section 4(b)(3)(B) of the Act requires and Cordylanthus mollis ssp. mollis as the Secretary to make certain findings Summary of Comments and possibly extinct. The Service published on petitions within 12 months of their Recommendations a notice on July 1, 1975 (40 FR 27823), receipt. Section 2(b)(1) of the 1982 In the proposed rule published June of its acceptance of the report of the amendments further requires that all 12, 1995 in the Federal Register (60 FR Smithsonian Institution as a petition petitions pending on October 13, 1982, 31000), all interested parties were within the context of section 4(c)(2) be treated as having been newly requested to submit factual reports or (petition provisions now are found in submitted on that date. This was the information that might contribute to the section 4(b)(3) of the Act) and its case for Cirsium hydrophilum var. development of a final rule. The public intention thereby to review the status of hydrophilum and Cordylanthus mollis comment period closed on August 21, the plant taxa named therein. The above ssp. mollis, because the 1975 1995. Appropriate State agencies, two taxa were included in the July 1, Smithsonian report had been accepted county and city governments, Federal 1975, notice. On June 16, 1976, the as a petition. On October 13, 1982, the agencies, scientific organizations, and Service published a proposal (41 FR Service found that the petitioned listing other interested parties were contacted 24523) to determine approximately of these species was warranted, but and requested to comment. A public 1,700 species to be precluded by other pending listing hearing request was received within 45 endangered species pursuant to section actions, in accordance with section days of publication of the proposal from 4 of the Act. The list of 1,700 plant taxa 4(b)(3)(B)(iii) of the Act; notification of Paul Campos, General Counsel for the was assembled on the basis of this finding was published on January Building Industry Association. Because comments and data received by the 20, 1984 (49 FR 2485). The finding was a Congressional moratorium on the Smithsonian Institution and the Service reviewed annually from October 1983 Service’s activities associated with final in response to House Document No. 94– through 1994, pursuant to section listing actions was in effect from April 51 and the July 1, 1975, Federal 4(b)(3)(C)(i) of the Act. 1995 to April 1996, scheduling of the Register publication. Cirsium A proposal to list Cirsium hearing was delayed. The Service hydrophilum var. hydrophilum and hydrophilum var. hydrophilum and subsequently scheduled and held the Cordylanthus mollis ssp. mollis were Cordylanthus mollis ssp. mollis as public hearing on Wednesday, October included in the June 16, 1976, Federal endangered was published on June 12, 2, 1996, from 6:00 p.m. to 8:00 p.m. at Register proposal. 1995. The proposal was based on the Holiday Inn, 1350 Holiday Lane, General comments received on the information supplied by reports to the Fairfield, California. To accommodate 1976 proposal were summarized in an California Diversity Database, and the hearing, the public comment period April 26, 1978, notice (43 FR 17909). observations and reports by numerous was reopened on September 6, 1996, The Act’s Amendments of 1978 required botanists. and closed October 15, 1996. Notice of that all proposals over 2 years old be The processing of this final listing the public hearing and reopening of the withdrawn. A 1-year grace period was rule conforms with the Service’s final public comment period was published given to those proposals already more listing priority guidance published on in the Federal Register September 6, than 2 years old. In a December 10, December 5, 1996 (61 FR 64475). The 1996 (61 FR 47105) and in newspapers 1979, notice (44 FR 70796), the Service guidance clarifies the order in which the including The Napa Register on withdrew the June 16, 1976, proposal, Service will process rulemakings September 18, 1996, The San Francisco along with four other proposals that had following two related events, the lifting Chronicle on September 18, 1996, The expired. on April 26, 1996, of the moratorium on Contra Costa Times on September 18, The Service published an updated final listings imposed on April 10, 1995 1996, and The Fairfield Daily Republic Notice of Review for plants on (Public Law 104–6) and the restoration on September 19, 1996. December 15, 1980 (45 FR 82480). The of significant funding for listing through During the comment period, the two plant taxa were listed as category 1 passage of the omnibus budget Service received comments (letters and candidates for Federal listing in this reconciliation law on April 26, 1996 oral testimony) from a total of 14 document. Category 1 taxa were those following severe funding constraints people. Some people submitted more that the Service has on file substantial imposed by a number of continuing than one comment to the Service. Six information on biological vulnerability resolutions between November 1995 commenters supported the listing, one and threats to support preparation of and April 1996. The guidance calls for commenter opposed the listing, and listing proposals. On November 28, giving highest priority to handling seven commenters are viewed as Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Rules and Regulations 61919 neutral. One commenter submitted mollis ssp. hispidus and the two cannot commenter stated that listing at this comments late. Among the six readily be distinguished in the field and time is premature and also was commenters supporting the listing are there is the possible occurrence of concerned that the best available the California Native Plant Society, the hybridization. knowledge, including information not University of California at Davis, and Service Response: The of yet in print, be used in the rule. the Napa-Solano Chapter of the the subspecies has been clarified by Service Response: In accordance with Audubon Society. Three commenters Chuang and Heckard (1971), with the ‘‘Interagency Cooperative Policy on provided detailed information on Cordylanthus mollis ssp. mollis and Information Standards under the locations, population sizes, and threats Cordylanthus mollis ssp. hispidus Endangered Species Act’’, published in to the species. These data have been separated primarily by habitat, spike the Federal Register on July 1, 1994 (59 incorporated into this rule. Two length, and seed size; and secondarily FR 34271), the Service impartially commenters stated that they were by branching patterns and hirsuteness reviews all scientific and other researching the threats to the species (i.e., coarse stiff hairs). As with many information to ensure that any and hoped that the Service would be subspecies, though material may be information used to promulgate a available to work with them in the difficult to identify in the field, regulation to add a species to the list of creation of protection and/or mitigation Cordylanthus mollis ssp. mollis and threatened and endangered species is plans as necessary. One commenter Cordylanthus mollis ssp. hispidus are reliable, credible, and represents the representing the Solano County recognized as distinct subspecies best scientific and commercial data Mosquito Abatement District stated they (Chuang and Heckard 1971, Chuang and available. The Service used information are willing to work with the Service to Heckard 1993). As the term ‘‘species’’ is received from the California Natural avoid actions that may be damaging to defined in the Act, the Service can Diversity Data Base, knowledgeable endangered plants and habitat. apply the protections of the Act to any botanists, and from studies specifically Opposing comments and other species or subspecies of fish, wildlife, or directed at gathering the information on comments questioning the proposed plants, that meets the definition of distribution and threats. Information rule have been organized into specific endangered or threatened. The Act does from botanical collections of these issues. These issues and the Service’s not attempt to define ‘‘species’’ in plants that, in some cases, dates from response to each are summarized as biological terms, and thus allows the the 1880’s, was utilized in the follows: term to be applied according to the best preparation of the proposed rule. The Issue 1: One commenter stated that current biological information and Service received information from the Service should make the precise understanding of evolution, speciation, Federal, State, and local agencies, and locations of the two tidal plants and genetics. consulted professional botanists during available to landowners and the Issue 3: One commenter questioned the preparation of the proposed rule. counties in which the species occur. whether mosquito abatement activities Destruction and loss of habitat and This information would help the had led to a decline in Cordylanthus extirpation of populations of these two landowners ensure that activities they mollis ssp. mollis. plants from a variety of causes have conduct would not harm the two Service Response: As documented in been documented. The Service sought species, if the species exist on their Factor ‘‘E’’ below, mosquito abatement comments on the proposed rule from property. activities, resulting from increased Federal, State, and county entities, Service Response: In the proposed urbanization, have been observed to species experts, and other individuals. rule, the Service stated that these plants adversely impact individual All substantive new data received are restricted to salt or brackish tidal Cordylanthus mollis ssp. mollis plants. during the public comment period have marsh within Solano, Contra Costa, and Issue 4: One commenter stated that been incorporated into the final rule. Napa counties. Individuals owning land there were considerably more Specific justification for listing the two in these counties who believe that their populations of Cordylanthus mollis ssp. plant species is summarized in Factors actions or activities may result in harm mollis in Contra Costa County than ‘‘A’’ through ‘‘E.’’ to either of these two species should feel reported in the proposed rule, which Issue 6: One commenter stated that free to provide the Service with detailed according to the commenter included we do not know that full tidal action is maps of their lands prior to conducting only the East Navy marsh and needed for Cordylanthus mollis ssp. these activities so that the Service can Swanton’s or Hasting’s Slough Marsh. mollis. provide technical assistance on the Service Response: Populations Service Response: All known exact locations of these species. The reported in the proposed rule as populations of Cordylanthus mollis ssp. Service will make every effort to notify occurring in Contra Costa County mollis occur in higher elevational zones landowners and seek cooperation with included Pt. Pinole, McAvoy Boat within larger tidal marshes that have surveys or other conservation efforts. Harbor, Hasting’s Slough, and Concord fully developed tidal channel networks. The complete file for this rule is Naval Weapons Station. As mentioned In sites where this taxa has been available for public inspection, and does in the ‘‘Discussion of the Two Species’’ extirpated, full tidal action has often contain general information about section, populations of annual plants been lost. Extensive surveys for where the species occurs. The Service is tend to fluctuate from year to year. The Cordylanthus mollis ssp. mollis have always willing to assist the public in Service views the additional been conducted in tidal and diked matters aimed at protecting sensitive ‘‘populations’’ of Cordylanthus mollis marsh lands, and it has not been located species. ssp. mollis located at East Navy South, in any diked marshes. Issue 2: One commenter was Swanton’s SW, Swanton’s NW, and Pt. Issue 7: One commenter stated that concerned about the listing of Pinole to be extensions of existing the plants occur in tidal marshes and Cordylanthus mollis ssp. mollis, populations that were included in the not in diked areas and, therefore, their although they did not formally object to proposed rule, and not an expansion of lands do not constitute critical habitat the listing. Specifically, the commenter the overall range of this species. for the species. questioned what the legal protection Issue 5: One commenter questioned Service Response: The designation of means to the subspecies when it is the adequacy of many aspects of the critical habitat for Cirsium hydrophilum similar in appearance to Cordylanthus data used in the proposed rule. This var. hydrophilum and Cordylanthus 61920 Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Rules and Regulations mollis ssp. mollis is not prudent. Refer waterfowl management. Only 3,780 ha The two plant species also face threats to the Critical Habitat section of this (9,340 acres) within Suisun Marsh from habitat fragmentation associated final rule for a detailed discussion of the remain as tidal marsh (Dedrick 1989). with commercial and residential Service’s decision. Most of the remaining tidal marshes are development, road construction, and backed by steep levees, allowing for ongoing effects of historical Peer Review little or no transitional wetland fragmentation by activities associated In accordance with Service peer habitat—the habitat required by Cirsium with clearing for agriculture, railroad review policy (July 1, 1994; 59 FR hydrophilum var. hydrophilum and construction, dredging, and conversion 34270), the Service sent copies of the Cordylanthus mollis ssp. mollis. to salt ponds. These activities have split proposed rule to three independent The change of freshwater inflow to habitat into smaller, more isolated units. botanists and tidal marsh specialists the marsh has modified the habitat for Habitat fragmentation may alter the who are professors. The Service these two taxa. Agricultural and physical environment, changing the solicited their review of the proposed municipal uses have diverted over 50 microclimate, quantity of water, and rule and pertinent scientific and percent of the historical annual inflow nutrients required by remnant commercial information substantive to of freshwater from the Suisun Marsh vegetation (Saunders et al. 1991). In the listing determination. The reviewers and Delta (ABAG 1991). During the past addition, a higher proportion of the area did not respond to the Service. 40 years, significant portions of the of these fragmented natural areas is Summary of Factors Affecting the tidally-influenced brackish marsh subject to the influences from external Species within Suisun Bay have become more factors (e.g., additional development, off-road vehicular use, numerous other Section 4 of the Act and regulations saline due to decreased freshwater flows (Pavlik 1992). Increased salt levels human influences, and competition (50 CFR part 424) promulgated to with non-native vegetation) that disrupt implement the listing provisions of the within the Suisun Marsh may threaten Cordylanthus mollis ssp. mollis and natural ecosystem processes. Further Act set forth the procedures for adding effects of habitat fragmentation on the species to the Federal lists of Cirsium hydrophilum var. hydrophilum. Salt stress causes decreased plant two plant species are discussed in endangered and threatened species. A Factor ‘‘E.’’ growth and lower reproduction. When species may be determined to be Projects that convert habitat from tidal salinity levels remain high during endangered or threatened due to one or marsh to diked seasonal wetlands more of the five factors described in extended drought conditions, potentially threaten both Cirsium section 4(a)(1). These factors and their population viability of these species hydrophilum var. hydrophilum and application to Cirsium hydrophilum may be greatly impaired to the extent Cordylanthus mollis ssp. mollis. Within (Greene) Jepson var. hydrophilum they lose their ability to maintain Suisun Marsh, the conversion of tidal (Suisun thistle) and Cordylanthus mollis themselves as components of a healthy marsh to diked seasonal wetlands, a Gray ssp. mollis (soft bird’s-beak) are as wetlands ecosystem (Pavlik 1992). practice common in the development of follows: When salinity increases in the root waterfowl managements areas, is a zone, salt stress reduces plant A. The Present or Threatened potential threat for both species abundance and causes shifts in plant (Randall Brown, in litt. 1993). The Destruction, Modification, or distribution. This has occurred even in Curtailment of Their Habitat or Range CDFG’s planned conversion of 40 ha common salt-tolerant plants (Pavlik (100 acres) of Distichlis spicata (an Habitat for Cirsium hydrophilum var. 1992). Cordylanthus mollis ssp. mollis associated species for both Cirsium hydrophilum and Cordylanthus mollis and Cirsium hydrophilum var. hydrophilum var. hydrophilum and ssp. mollis has been severely reduced by hydrophilum may be especially Cordylanthus mollis ssp. mollis) in Hill past human activities. Hydraulic vulnerable to increased salt levels due Slough as enhancement of habitat for mining, diking and filling involved in to the limited number of individuals wildlife (CDWR, in litt. 1996), will agricultural land conversion and and their restricted distribution. further diminish the amount of suitable urbanization, waste disposal, port and Additionally, decreased levels of salt habitat for Cirsium hydrophilum var. industrial development, railroad within the Suisun Marsh may threaten hydrophilum and Cordylanthus mollis construction, dredging, salt production, Cordylanthus mollis ssp. mollis by ssp. mollis. and sedimentation have drastically affecting its host plants. Cordylanthus Habitat conversion for planned future reduced the amount of tidal marsh in mollis ssp. mollis is a hemi-root parasite urbanization threatens both species. In California (Atwater 1979, MacDonald that completes its life cycle by the Association of Bay Area 1990, Association of Bay Area parasitizing the roots of perennial Governments’ analysis of the San Governments (ABAG) 1991). Changes in halophytes. Salicornia virginica and Francisco Bay Estuary, over 4,856 ha freshwater inflow, pollution, habitat Distichlis spicata are halophyte plant (12,000 acres) of wetlands in the Bay conversion, habitat fragmentation, and associates and likely hosts of will be subject to moderate to high alteration of the natural tidal regime Cordylanthus mollis ssp. mollis, development uses over the next 12 years continue to threaten the habitat of both although specifics of the host (ABAG 1991). Highway projects within species. relationship have yet to be determined. the San Francisco Bay Estuary during In San Pablo Bay, historical tidal During the wet and above normal water the next 20 years alone are expected to wetlands have been diked and years of 1995 and 1996, these two plant fill 146 ha (362 acres) of wetlands converted to agricultural lands that were associates have decreased in abundance (ABAG 1991). Some of the highway farmed for oat hay. In addition, in the areas where the Cordylanthus projects will threaten Cordylanthus approximately 4,050 ha (10,000 acres) mollis ssp. mollis is found. Therefore, it mollis ssp. mollis by eliminating habitat also were converted to salt ponds. In is important to maintain the long term into which existing populations of this Suisun Bay, most of the 28,780 ha natural variability of hydrologic plant could expand. Widening of (71,100 acres) of tidal marshes that conditions in order to ensure the California Highway 37 will impact existed in 1850 were converted survival of Cordylanthus mollis ssp. wetlands that occur along the Napa originally to agricultural land, and then mollis and the species upon which it River (ABAG 1991) and may adversely to diked seasonal wetlands used for may depend (R. Brown, in. litt. 1996). affect habitat for Cordylanthus mollis Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Rules and Regulations 61921 ssp. mollis. Proposed widening of hydrophilum in September 1996. These hydrophilum and Cordylanthus mollis Highway 12 near the Suisun Marsh caterpillars have caused significant ssp. mollis. would threaten the habitats of damage to the rosettes of plants that will CDFG has formally designated Cordylanthus mollis ssp. mollis and flower next year (R. Brown, in. litt. Cordylanthus mollis ssp. mollis as rare Cirsium hydrophilum var. hydrophilum 1996). under the California Endangered (Brenda Grewell, pers. comm. 1993), Disease is not known to be a factor for Species Act (chapter 1.5 sec. 2050 et either due to habitat fragmentation as either Cirsium hydrophilum var. seq. of the California Fish and Game discussed above or by runoff. hydrophilum or Cordylanthus mollis Code and Title 14, California Code of Projects that alter the natural tidal ssp. mollis. Regulations 670.2). This designation by regime may also threaten both taxa. the State of California requires D. The Inadequacy of Existing Although the California Department of individuals to obtain a permit or an Regulatory Mechanisms Water Resources is no longer pursuing agreement with the CDFG to possess or the Western Suisun Marsh Salinity Section 404 of the Clean Water Act ‘‘take’’ a listed species. Although the Control Project, projects that may alter represents the primary Federal law that ‘‘take’’ of State-listed plants is the salinity regime and flows, are being affords some protection for these two prohibited (California Native Plant evaluated under the CalFed Bay-Delta plants since they occur in wetlands. Protection Act, chapter 10 sec. 1908 and Program. The goals of the program will However, the Clean Water Act, by itself California Endangered Species Act, be to contribute toward recovery of does not provide adequate protection for chapter 1.5 sec. 2080), State law sensitive species rather than to recover either Cirsium hydrophilum var. exempts the taking of such plants via the species. The alternatives of the hydrophilum or Cordylanthus mollis habitat modification or land use changes CalFed program have not been ssp. mollis. The Army Corps of by the landowner. After CDFG notifies identified yet, but could involve habitat Engineers (Corps) is the Federal agency a landowner that a State-listed plant modification associated with restoration responsible for administering the grows on his or her property, the activities and the construction of section 404 program. Under section 404, California Native Plant Protection Act various storage and conveyance nationwide permits may be issued for requires only that the landowner notify structures. These actions could subject certain activities that are considered to the agency ‘‘at least 10 days in advance tidal marsh to altered flows and changes have minimal impacts, including oil of changing the land use to allow in salinity that could be detrimental to spill cleanup, minor dredging, salvage of such a plant’’ (chapter 10 sec. Cirsium hydrophilum var. hydrophilum maintenance dredging of existing 1913 of the California Fish and Game and Cordylanthus mollis ssp. mollis. basins, some road crossings, and minor Code). The restoration plans have not bank stabilization (December 13, 1996; The California Environmental Quality specifically addressed Cirsium 61 FR 65874–65922). However, the Act (CEQA) requires a full disclosure of hydrophilum var. hydrophilum and Corps seldom withholds authorization the potential environmental impacts of Cordylanthus mollis ssp. mollis. of an activity under nationwide permits proposed projects. CEQA also obligates unless the existence of a listed disclosure of environmental resources B. Overutilization for Commercial, threatened or endangered species would within proposed project areas and may Recreational, Scientific, or Educational be jeopardized, regardless of the enhance opportunities for conservation Purposes significance of the affected wetland efforts. However, CEQA does not Overutilization currently is not resources. Activities that do not qualify guarantee that such conservation efforts known to be a factor for these two for authorization under a nationwide will be implemented. The public agency plants. Increased collecting for scientific permit, including projects that would with primary authority or jurisdiction or horticultural purposes or excessive result in more than minimal adverse over the project is designated as the lead visits by individuals interested in seeing environmental effects, either agency, and is responsible for rare plants could result, however, from individually or cumulatively, may be conducting a review of the project and increased publicity resulting from authorized by an individual or regional consulting with the other agencies publication of this proposal. general permit, which are typically concerned with the resources affected subject to more extensive review. by the project. Section 15065 of the C. Disease or Predation Regardless of the type of permit deemed CEQA Guidelines requires a finding of The health of one of the largest necessary under section 404, rare significance if a project has the potential occurrences of Cordylanthus mollis ssp. species such as Cirsium hydrophilum to ‘‘reduce the number or restrict the mollis is declining due to insect var. hydrophilum and Cordylanthus range of a rare or endangered plant or predation (Brenda Grewell, pers. comm. mollis ssp. mollis may receive no animal.’’ Once significant effects are 1993). Intense insect seed predation has special consideration with regard to identified, the lead agency has the been observed in the population at Joice conservation or protection unless they option to require mitigation for effects Island and Hill Slough within Suisun are listed under the Act. through changes in the project or to Marsh in Solano County (Randall The Service, as part of the section 404 decide that overriding considerations Brown, in litt. 1993). The presence of a review process, provides comments to make mitigation infeasible. In the latter thistle weevil (Rhinocyllus conicus) in a the Corps on nationwide permits and case, projects may be approved that portion of the Cirsium hydrophilum var. individual permits. The Service’s cause significant environmental hydrophilum population was comments are only advisory, although damage, such as resulting in the loss of documented in June 1996 by CDWR. procedures exist for elevating permit sites supporting State-listed species. The CDWR has collected thistle weevil review within the agencies when Mitigation plans usually involve the in Cirsium hydrophilum var. disagreements between the Service and transplantation of the plant species to hydrophilum flower heads, and Corps arise concerning the issuance of an existing habitat or an artificially observed many flower heads with no a permit. In practice, the permitting created habitat. Following the seeds. The larval stage of this weevil process for wetland fills and other development of the transplantation feeds on the seed. Phyciods mylitta activity under section 404 are plan, the original site is destroyed. caterpillars were collected on a insufficient to protect rare species such Therefore, if the mitigation effort fails, population of Cirsium hydrophilum var. as Cirsium hydrophilum var. the resource has already been lost. 61922 Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Rules and Regulations

Protection of listed species through that petroleum causes death, reduced to increase during the next 10 years. The CEQA is, therefore, dependent upon the growth, and impaired reproduction in San Francisco Bay Conservation and discretion of the lead agency involved. large plants (Albers 1992). The effects of Development Commission, Center for In addition, revisions to the CEQA a petroleum spill to plants depends on Environmental Design Research, and the guidelines have been proposed that, if several factors including the time of Greenbelt Alliance (1992) collectively made final, may weaken protections for year, the type of petroleum product modeled plausible land use changes and threatened, endangered, and other (crude or refined), and the degree of their impact to the health of the San sensitive species (U.S. Department of coverage (Hershner and Moore 1977; Francisco Bay Estuary. Several methods the Interior, in. litt. 1997). Final CEQA Rob Ricker, CDFG, pers. comm. 1993). A were used to determine the effects of guidelines are forthcoming. plant entirely covered by oil will die. land use change including two future In 1977, the State of California Oil that seeps into sediments can affect land use models. The model projecting enacted the Suisun Marsh Preservation the roots or rhizomes of plants as well. the highest increase in heavy metal was Act (Preservation Act) to protect Suisun Oil spills may also affect plants by based on a composite of the general plan Marsh. This legislation established decreasing the amount of plant biomass maps for all of the counties in the primary and secondary management (either above or below ground), or by estuary. Amounts of heavy metals areas. The secondary management areas decreasing the reproductive capacity of including lead, nickel, and cadmium were established to provide a buffer the plant (Rob Ricker, pers. comm. were projected to increase under both against development. In 1982, the 1993). future land use models in all the Preservation Act was amended to Four hundred to 800 oil spills occur watersheds that include habitat for these exclude, in the primary management annually within California (Rob Ricker, two plants. area, land proposed for the Lawlor pers. comm. 1993). Within northern As discussed in Factor ‘‘A’’, habitat Ranch development. Exclusion of this California, 309 reported spills affecting fragmentation may alter the physical land has reduced the buffer between marine or estuarine habitats within the environment. In addition, habitat urbanization and Suisun Marsh. The jurisdiction of the Service’s Sacramento fragmentation increases the risks of indirect effects of urbanization are Fish and Wildlife Office occurred extinction due to random events. The discussed further in Factors ‘‘A’’ and between March 1992 and March 1993 small, isolated nature of the two ‘‘E’. (Office of Environmental Services (OES) populations of Cirsium hydrophilum 1992 and 1993). Most of these spills E. Other Natural or Manmade Factors var. hydrophilum also makes extinction occurred in the San Francisco Bay Affecting Their Continued Existence from random events more likely. Estuary. Random events such as insect or pest Both populations of Cirsium In 1988, an oil spill in Martinez, outbreaks, extended drought, oil spills hydrophilum var. hydrophilum are California, flowed as far as Suisun Bay. adversely affected by non-native plants. Although these plants are found within or a combination of several such events, Lepidium latifolium (perennial the northern part of the Suisun Marsh could destroy part of a single population peppergrass), a rated noxious weed and may not be threatened directly by or entire populations. The risk of (California Department of Food and an oil spill in San Francisco Bay, the extirpation due to genetic and Agriculture 1993), has ‘‘moved in potential for oil spills exists from demographic problems associated with especially in the last 5 years’’ (Brenda vessels operating within the marsh, as small populations is a threat to at least Grewell, pers. comm. 1993). Cirsium well as from an accidental spill from the two occurrences of Cordylanthus hydrophilum var. hydrophilum is out- railroads that bisect the marsh. Oil spills mollis ssp. mollis that have fewer than competed by L. latifolium. also are an ever present threat to 25 individuals. Additionally, the Hybridization with Cirsium vulgare Cordylanthus mollis ssp. mollis ongoing harvesting, planting of seed, (bull thistle), a non-native, also is a occurring near Point Pinole (Pat and attempts at artificially expanding potential threat. Cirsium vulgare O’Brien, General Manager, East Bay one of the populations in Contra Costa hybridizes readily with other Cirsium. Regional Parks District, in litt. 1994). County, that is occurring without proper Hybridization with Cirsium vulgare was A hazardous waste clean-up effort permits from the State of California, suggested as a possible explanation for resulted in the removal of a portion of potentially threatens the genetic the previously presumed extinction of the Middle Point Cordylanthus mollis diversity of Cordylanthus mollis ssp. Cirsium hydrophilum var. hydrophilum ssp. mollis population in 1994. This mollis (Deborah L. Elliot-Fisk, (Smith and Berg 1988). Cordylanthus population is found on the Concord University of California at Davis, in. litt. mollis ssp. hispidus is a species Naval Weapons Station Property (Ruygt 1996; David Tibor, CNPS, in. litt. 1996). generally associated with more alkaline 1994). Mosquito abatement will increase as a habitats than tidal marshes where Chronic pollution from point and result of urbanization (Brenda Grewell, Cordylanthus mollis ssp. mollis is non-point sources, including heavy pers. comm. 1993). Mosquito abatement found. However, hybridization and metals from industrial discharges, also activities threaten Cirsium hydrophilum mixing of traits may be occurring may threaten the habitat of both plants. var. hydrophilum and Cordylanthus between these two taxa or subspecies as It is unknown, however, what effects mollis ssp. mollis. Within Suisun possibly indicated in some voucher heavy metals in industrial discharges Marsh, both species grow along or near species kept in the University of have on these two taxa. In 1978, 52 first order channels and mosquito California (Berkeley) and Jepson municipal treatment facilities and 42 abatement drainage ditches. Ditch herbarium reference collections. industrial facilities continuously cleaning and dredging, and the chemical Chronic pollution from petroleum discharged wastewater into San spraying of vegetation along these products is an ongoing threat to the Francisco Bay (Western Ecological channels or ditches may adversely habitat of both plants within San Pablo Services Company (WESCO) 1986). By impact individual plants. Plant Bay and southern Suisun Bay. Oil spills 1982, over 200 permits for industrial populations parallel to these channels can result in severe and long lasting discharges had been granted (WESCO have been subjected to damage by destruction of salt marsh vegetation. 1986). vehicles used off established roads Studies on mangroves, seagrasses, salt The amounts of heavy metals in the during mosquito abatement activities marsh grasses, and algae have shown San Francisco Bay Estuary are projected (Randall Brown, in. litt. 1993). Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Rules and Regulations 61923

Foot traffic is a threat to Cordylanthus ranges, they meet the definition of process for wetland fills and other mollis ssp. mollis. A trail runs through ‘‘endangered’’ as it is defined in the Act. activities in protecting rare species is the occurrence located on East Bay The preferred action, therefore, is to list discussed under Factor ‘‘D’’ of the Regional Park’s Point Pinole Regional Cirsium hydrophilum var. hydrophilum ‘‘Summary of Factors Affecting the Seashore. Foot traffic also is a potential and Cordylanthus mollis ssp. mollis as Species’’ section above. Although there threat to the largest occurrence of endangered. may be a Federal nexus for Cirsium Cordylanthus mollis ssp. mollis due to Alternatives to this action were hydrophilum var. hydrophilum through the increased urbanization occurring considered but not preferred. Not listing the Clean Water Act, the designation of within 0.40 kilometer (0.25 mile). Foot Cirsium hydrophilum var. hydrophilum critical habitat for this species would traffic disturbance through and Cordylanthus mollis ssp. mollis or provide little or no benefit to the Cordylanthus mollis ssp. mollis can listing these taxa as threatened would protection of this species beyond that easily damage the shallow and very not provide adequate protection and provided by listing. Because of the small brittle roots (Stromberg 1986). would not be consistent with the Act. size of the total population of this Erosion is a threat to Cordylanthus The Service is not proposing to species (i.e., a few thousand mollis ssp. mollis located on the Point designate critical habitat for these plants individuals) and the small area of Pinole Regional Seashore. The main at this time, as discussed below. occupied habitat (i.e., less than 0.40 ha population of Cordylanthus mollis ssp. Critical Habitat (1 ac)), any adverse modification of the mollis is immediately adjacent to a occupied habitat would likely slough that is undergoing bank Critical habitat is defined in section 3 jeopardize the continued existence of slumping (Stromberg 1986). Individual of the Act as: (i) The specific areas Cirsium hydrophilum var. hydrophilum. plants are threatened by undercutting of within the geographical area occupied Critical habitat designation for the bank and subsequent slumping of by a species, at the time it is listed in Cordylanthus mollis ssp. mollis is not the marsh soil into the slough. accordance with section 4 of the Act, on Cattle grazing continues on both which are found those physical or prudent due to lack of benefit. private and state owned tidal marsh biological features (I) essential to the Cordylanthus mollis ssp. mollis is a lands adjacent to Hill Slough, and in the conservation of the species and (II) that wetland species and alteration of its privately owned tidal marsh near may require special management tidal marsh habitat may be regulated by McAvoy Harbor. Extensive areas of bare consideration or protection and; (ii) the Corps under the Clean Water Act. ground are now present within the specific areas outside the geographical The inadequacies of the permitting Cordylanthus mollis ssp. mollis area occupied by a species at the time process for wetland fills and other population, decreasing the size of the it is listed, upon determination that activities in protecting rare species is populations (R. Brown, in. litt. 1996). such areas are essential for the discussed under Factor ‘‘D’’ of the The Service has carefully assessed the conservation of the species. ‘‘Summary of Factors Affecting the best scientific and commercial ‘‘Conservation’’ as it is defined in Species’’ section above. Because of the information available regarding the past, section 3(3) of the Act means the use of small size of the total population of this present, and future threats faced by all methods and procedures needed to species (i.e., several thousand these species in determining to finalize bring the species to the point at which individuals) and the small area of this rule. Cirsium hydrophilum var. listing under the Act is no longer occupied habitat (i.e., about 12 ha (31 hydrophilum, limited to only two necessary. ac)), any adverse modification of the populations, is threatened across all of Section 4(a)(3) of the Act, as occupied habitat would likely its current range by indirect effects of amended, and implementing regulations jeopardize the continued existence of urbanization, projects that alter the (50 CFR 424.12) require that, to the Cordylanthus mollis ssp. mollis. natural tidal regime, vulnerability to maximum extent prudent and Moreover, any benefit that may be extinction due to random events and determinable, the Secretary designate gained by designation of critical habitat environmental factors, and competition critical habitat at the time the species is is out weighed by the detriment of such with non-native vegetation. listed. Service regulations (50 CFR a designation. The publication of maps Urbanization, industrial development, 424.12(a)(1)) state that designation of depicting precise locations of critical and agricultural land conversion have critical habitat is not prudent when one habitat that is required for designation extirpated or potentially extirpated or both of the following situations would contribute to the further decline nearly 45 percent of known occurrences exist—(1) The species is threatened by of this species by facilitating of Cordylanthus mollis ssp. mollis. taking or other human activity, and trespassing, uncontrolled collecting, and Cordylanthus mollis ssp. mollis is identification of critical habitat can be hindering recovery efforts. Urban restricted to about 12 ha (31 acres) of expected to increase the degree of threat encroachment in the Suisun Marsh habitat. Indirect effects of urbanization to the species, or (2) such designation of Protection Zone increases the threat of including habitat fragmentation and critical habitat would not be beneficial foot traffic in sensitive tidal marsh areas conversion, projects that alter natural to the species. where these plants occur (R. L. Brown, tidal regimes, alteration of salinity The Service finds that designation of California Department of Water levels, water pollution, mosquito critical habitat is not prudent for Resources, in. litt. 1993), and these areas abatement activities (including off- Cirsium hydrophilum var. hydrophilum are easily accessed by foot from the highway vehicle use), insect predation, and Cordylanthus mollis ssp. mollis at public roads near the marsh. As erosion, foot traffic, and extirpation due this time. discussed in Factor ‘‘E’’ above, the to genetic and demographic problems Critical habitat designation for ongoing harvesting of seeds and continue to threaten most occurrences Cirsium hydrophilum var. hydrophilum attempts at artificially expanding one of of Cordylanthus mollis ssp. mollis is not prudent due to lack of benefit. the populations in Contra Costa County across its remaining range. Because Cirsium hydrophilum var. hydrophilum by seeding, that is occurring without Cirsium hydrophilum var. hydrophilum is a wetland species and alteration of its proper permits from the State of and Cordylanthus mollis ssp. mollis are tidal marsh habitat may be regulated by California, potentially threatens the in danger of extinction throughout all or the Corps under the Clean Water Act. genetic diversity of Cordylanthus mollis a significant part of their respective The inadequacies of the permitting ssp. mollis (Deborah L. Elliot-Fisk, 61924 Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Rules and Regulations

University of California at Davis, in. litt. Section 7(a) of the Act requires in conservation efforts. The plan(s) 1996; David Tibor, CNPS, in. litt. 1996). Federal agencies to evaluate their would set recovery priorities and Critical habitat receives consideration actions with respect to any species that estimate costs of various tasks necessary under section 7 of the Act with regard is proposed or listed as endangered or to accomplish them. It also would to actions carried out, authorized, or threatened and with respect to its describe site-specific management funded by a Federal agency. As such, critical habitat, if any is being actions necessary to achieve designation of critical habitat may affect designated. Regulations implementing conservation and survival of the two non-Federal lands only where such a this interagency cooperation provision species. Additionally, pursuant to Federal nexus exists. Critical habitat of the Act are codified at 50 CFR part section 6 of the Act, the Service would designation requires Federal agencies to 402. Section 7(a)(1) requires Federal be able to grant funds to affected states ensure that their actions do not result in agencies to use their authorities to for management actions aiding the destruction or adverse modification of further the purposes of the Act by protection and recovery of these species. critical habitat. However, both carrying out programs for listed species. The Act and its implementing jeopardizing the continued existence of If a species is listed, section 7(a)(2) of regulations set forth a series of general a species and adverse modification of the Act requires Federal agencies to prohibitions and exceptions that apply critical habitat have similar standards ensure that activities they authorize, to all endangered plants. All and thus similar thresholds for violation fund, or carry out are not likely to prohibitions of section 9(a)(2) of the Act, of section 7 of the Act. In fact, biological jeopardize the continued existence of implemented by 50 CFR 17.61, apply. opinions that conclude that a Federal such a species or to destroy or adversely These prohibitions, in part, make it agency action is likely to adversely modify its critical habitat. If a Federal illegal for any person subject to the modify critical habitat but not action may affect a listed species or its jurisdiction of the United States to jeopardize the species for which it is critical habitat, the responsible Federal import or export; transport in interstate designated are extremely rare. agency must enter into consultation or foreign commerce in the course of a Most populations of the two taxa with the Service. commercial activity, sell or offer for sale occur on private or State lands. The One occurrence of Cordylanthus in interstate or foreign commerce, or designation of critical habitat on private mollis ssp. mollis is on land that is remove and reduce the species to or State lands will afford no additional managed by the U.S. Navy. Activities possession from areas under Federal benefit for these species over that conducted by the U.S. Navy that may jurisdiction. In addition, for plants provided as a result of listing provided affect this species would be subject to listed as endangered, the Act prohibits there is no Federal nexus. Designating review under section 7 of the Act. The the malicious damage or destruction on critical habitat does not create a U.S. Bureau of Reclamation and the areas under Federal jurisdiction and the management plan for the areas where Corps would become involved with removal, cutting, digging up, or the listed species occurs; does not these plants through their funding of damaging or destroying of such plants establish numerical population goals or projects that may directly impact the in knowing violation of any State law or prescribe specific management actions plants or support development of areas regulation, including State criminal (inside or outside of critical habitat); that contain suitable salt or brackish trespass law. Certain exceptions apply and does not have a direct effect on marsh habitat for these plants. The to agents of the Service and State areas not designated as critical habitat. Corps also would be involved as an conservation agencies. Protection of the habitat of these authorizing agency for permits to dredge The Act and 50 CFR parts 17.62, species will be addressed through the or fill wetlands and navigable waters of 17.63, and 17.72 also provide for the section 4 recovery process and the the United States. The Corps regulates issuance of permits to carry out section 7 consultation process. The dredging and filling of jurisdictional otherwise prohibited activities Service believes that Federal wetlands and navigable waters, involving endangered or threatened involvement in the areas where these including salt marshes, under section plant species under certain plants occur can be identified without 404 of the Clean Water Act. By circumstances. The Service anticipates the designation of critical habitat. For regulation, nationwide permits may not few permits would ever be sought or the reasons discussed above, the Service be issued where a federally listed issued for the two species because the finds that the designation of critical endangered or threatened species may plants are not common in cultivation or habitat for these plants is not prudent. be affected by the proposed project in the wild. Requests for copies of the regulations on listed plants and Available Conservation Measures without first completing consultation pursuant to section 7 of the Act. The inquiries regarding them may be Conservation measures provided to presence of a listed species would addressed to U.S. Fish and Wildlife species listed as endangered or highlight the national importance of Service, Ecological Services, threatened under the Act include these resources. Highway construction Endangered Species Permits, 911 NE recognition, recovery actions, and maintenance projects that receive 11th Avenue, Portland, Oregon 97232– requirements for Federal protection, and funding from the Department of 4181; telephone 503/231–2063 or FAX prohibitions against certain activities. Transportation (Federal Highway 503/231–6243). Recognition through listing encourages Administration) also would be subject The Act directs Federal agencies to and results in conservation actions by to review under section 7 of the Act. protect and promote the recovery of Federal, State, and private agencies, Listing Cirsium hydrophilum var. listed species. Collection of listed plants groups, and individuals. The Act hydrophilum and Cordylanthus mollis on Federal lands is prohibited. Proposed provides for possible land acquisition ssp. mollis as endangered provides for Federal projects and actions including and cooperation with the State and development of a recovery plan (or activities on private or non-Federal requires that recovery plans be plans) for them. Such plan(s) would lands that involve Federal funding or developed for all listed species. The bring together both State and Federal permitting require review to ensure they protection required of Federal agencies efforts for conservation of the plants. will not jeopardize the survival of any and the prohibitions against certain The recovery plan(s) would establish a listed species, including plants. The Act activities involving listed plants are framework for agencies to coordinate does not prohibit ‘‘take’’ of listed plants discussed, in part, below. activities and cooperate with each other on private lands, but private landowners Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Rules and Regulations 61925 should be aware of State laws protecting permit is issued to allow collection for References Cited imperiled plants. scientific or recovery purposes, or a A complete list of all references cited It is the policy of the Service, consultation is conducted in accordance with section 7 of the Act, would also not herein is available, upon request, from published in the Federal Register on the Field Supervisor, Sacramento Fish July 1, 1994 (59 FR 34272), to identify result in a violation of section 9. The Service is not aware of any otherwise and Wildlife Office (see ADDRESSES to the maximum extent practicable at section). the time a species is listed those lawful activities being conducted or Author: The primary authors of this activities that would or would not proposed by the public that will be final rule are Kirsten Tarp and Matthew constitute a violation of section 9 of the affected by this listing and result in a D. Vandenberg, U.S. Fish and Wildlife Act. The intent of this policy is to violation of section 9. General Service, Sacramento Fish and Wildlife increase public awareness of the effect prohibitions and exceptions that apply Office (see ADDRESSES section). of the listing on proposed and ongoing to all endangered plants in section activities within a species’ range. Most 9(a)(2) of the Act, implemented by 50 List of Subjects in 50 CFR Part 17 occurrences of both plants are either on CFR 17.61, apply as discussed earlier in private or non-Federal lands. One this section. Questions regarding Endangered and threatened species, whether specific activities will population of Cordylanthus mollis ssp. Exports, Imports, Reporting and constitute a violation of section 9 mollis occurs on land managed by the recordkeeping requirements, should be directed to the Field Department of Defense (U.S. Navy). The Transportation. Supervisor of the Service’s Sacramento Service believes that the following Regulations Promulgation Fish and Wildlife Office (see ADDRESSES actions would result in a violation of section). section 9, although possible violations Accordingly, Part 17, subchapter B of are not limited to these actions alone— National Environmental Policy Act chapter I, Title 50 of the Code of Federal collection, damage, or destruction of Regulations, is amended as set forth The Fish and Wildlife Service has below: these species on Federal lands, except determined that an Environmental in certain cases described below; and Assessment or Environmental Impact PART 17Ð[AMENDED] activities on non-Federal lands Statement, as defined under the conducted in knowing violation of authority of the National Environmental 1. The authority citation for Part 17 California State law, which requires a Policy Act of 1969, need not be continues to read as follows: ten day notice be given before taking of prepared in connection with regulations plants on private land. The Service Authority: 16 U.S.C. 1361–1407; 16 U.S.C. adopted pursuant to section 4(a) of the 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– believes that, based on the best available Act. A notice outlining the Service’s 625, 100 Stat. 3500, unless otherwise noted. information at this time, the following reasons for this determination was actions will not result in a violation of published in the Federal Register on 2. Section 17.12(h) is amended by section 9 on private land provided that October 25, 1983 (48 FR 49244). adding the following, in alphabetical they do not violate State trespass or order under FLOWERING PLANTS, to other laws—waterfowl hunting, bird Required Determinations the List of Endangered and Threatened watching, and fishing. Activities that The Service has examined this Plants, to read as follows: occur on Federal land, or on private regulation under the Paperwork land that receive Federal authorization, Reduction Act of 1995 and found it to § 17.12 Endangered and threatened plants. permits, or funding, and for which contain no information collection * * * * * either a Federal endangered species requirements. (h) * * *

Species Historic range Family name Status When listed Critical Special Scientific name Common name habitat rules

FLOWERING PLANTS

******* Cirsium hydrophilum Suisun thistle ...... U.S.A. (CA) ...... Asteraceae ...... E ...... NA NA var. hydrophilum.

******* Cordylanthus mollis Soft bird's-beak ...... U.S.A. (CA) ...... Scrophulariaceae .... E ...... NA NA ssp. mollis.

*******

Dated: November 12, 1997. Jamie Rappaport Clark, Director, Fish and Wildlife Service. [FR Doc. 97–30552 Filed 11–19–97; 8:45 am] BILLING CODE 4310±55±P