[Federal Register Volume 59, Number 149 (Thursday, August 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18930]


[[Page Unknown]]

[Federal Register: August 4, 1994]


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DEPARTMENT OF THE INTERIOR
50 CFR Part 17

RIN 1018-AC65

 

Endangered and Threatened Wildlife and Plants; Proposed Rule to 
List Two Plants From Southwestern California as Endangered and 
Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The Fish and Wildlife Service (Service) proposes to list 
Downingia concolor var. brevior (Cuyamaca Lake downingia) as endangered 
and Limnanthes gracilis ssp. parishii (Parish's meadowfoam) as 
threatened throughout their respective ranges in southwestern 
California pursuant to the Endangered Species Act of 1973, as amended 
(Act). These species occur in vernally moist soils of montane wet 
meadows, near springs and seeps, or vernal pools within the Peninsular 
Ranges of southwestern California. These plants are imperiled by a 
variety of factors including alteration of wetland hydrology, cattle 
grazing, recreational activities, recreational development, off-road 
vehicle activity, and competition from exotic plant species. This 
proposed rule, if made final, would extend protection under the Act to 
these two plants. Critical habitat is not being proposed at this time. 
Additional data and information, which may assist the Service in making 
a final decision on this proposed action, is solicited on the status of 
these species.
DATES: Comments from all interested parties must be received by October 
3, 1994. Public hearing requests must be received by September 19, 
1994.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to the Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad 
Field Office, 2730 Loker Avenue West, Carlsbad, California 92008. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

FOR FURTHER INFORMATION CONTACT: Ms. Debbie Kinsinger, Botanist, at the 
above address (telephone 619/431-9440).

SUPPLEMENTARY INFORMATION:

Background

    Downingia concolor var. brevior (Cuyamaca Lake downingia) and 
Limnanthes gracilis ssp. parishii (Parish's meadowfoam) occur in 
association with meadows and drainages of the Peninsular Ranges of 
southwestern California from the Santa Ana Mountains of extreme 
southwestern Riverside County, south to the Laguna Mountains of 
southern San Diego County, California. Both plant taxa are restricted 
to grassy meadows that are vernally wet (wet during the rainy season) 
with saturated soil conditions and shallow pools for several weeks at a 
time. Between the ponded areas are drier mounds, called mima mounds. 
This type of physiography is referred to as a montane meadow-vernal 
pool association.
    The largest populations of both taxa are located within the 
Cuyamaca Valley in the Cuyamaca Mountains of central San Diego County, 
California. Although the vernal pool and mima mound topography is 
mostly obliterated, much of the unique, montane, vernal pool flora 
remains. This flora includes a number of disjunct species that are more 
frequently associated with vernal pools of coastal San Diego County or 
central California (e.g., Deschampsia danthonioides (annual hairgrass), 
Blennosperma nanum (common blennosperma), and Delphinium hesperium ssp. 
cuyamacae (Cuyamaca larkspur) (Beauchamp 1986a, Winter 1991)).
    Historically, a depression at the southwestern end of the Cuyamaca 
Valley formed a small lake that dried up in the summer. This area was 
referred to as ``Laguna Que Se Seca'' (the lake that dries up) (Allen 
and Curto 1987). This area and the rest of the valley supported a 
complex of vernal pools and mima mounds. A dam was built in 1886 at the 
Boulder Creek outlet of Cuyamaca Lake. The dam created a permanent 
reservoir known as Cuyamaca Lake. A dike built in 1967 allowed water to 
be pumped from the reservoir so that the valley could be kept in a 
flooded condition throughout the summer (Ball et al., unpub. man.). In 
wet years, the reservoir and dike system allows the entire valley to 
remain flooded for extended periods (Bauder 1992). Many areas 
supporting these taxa have been moderately to heavily grazed in the 
past and some areas continue to be adversely affected by livestock and 
horses. For example, heavy grazing in the Laguna Mountains since the 
1880's has resulted in the increased abundance of introduced annual 
grasses and forbs, the scarcity of organic matter, and severe gullying 
and erosion (Sproul 1979).
    Downingia concolor var. brevior (Cuyamaca Lake downingia) was 
described by R. McVaugh (1941) based on a collection by L. Abrams at 
Cuyamaca Lake, Cuyamaca Mountains, San Diego County, California. 
Beauchamp (1986b) elevated the plant to a subspecies following the 
suggestions of Thorne (1978). However, Ayers (1993) also recognized 
this plant as D. c. var. brevior following McVaugh's (1941) treatment 
of this taxon.
    Downingia concolor var. brevior is a member of the bellflower 
family (Campanulaceae). This plant is a low, slightly succulent annual 
herb, with stems 5 to 20 centimeters (cm) (2 to 8 inches (in)) long. 
The flowers are blue and white with a 4-sided purple spot at the base 
of the united petals. The fruit is 12 to 15 mm (0.5 in) long and the 
seeds have linear striations (lines). D. concolor var. brevior blooms 
from May to July and sets seed from June to August. The seeds are 
dispersed by flooding and require brief inundation for germination 
(Munz 1974, Bauder 1992).
    Downingia concolor var. brevior can be distinguished from the only 
other member of this genus that occurs in southern California, D. 
cuspidata, by the form of the striations on the seed and by the color 
of the flower. It can be distinguished from the more northern D. 
concolor var. concolor by the size of the fruit and how rapidly the 
fruit splits open when the seeds are mature (Ayers 1993).
    Downingia concolor var. brevior is restricted to a single 
population at Cuyamaca Lake in the Cuyamaca Valley of San Diego County, 
California on land owned by the Lake Cuyamaca Recreation and Park 
District. Historically, the population of D. concolor var. brevior was 
located throughout much of the valley floor. This population has now 
been largely restricted to the shore of the lake, penetrating into the 
valley floor during dry years. From 1988 to 1992 one population existed 
in the vicinity of Cuyamaca Lake, consisting of between 9 and 24 
stands. Combined, these stands occupied less than 200 acres and 
frequently occupied less than 100 acres. The number of individuals 
within these stands, and the location and size of these stands vary in 
any given year in response to rainfall, the extent of winter flooding, 
and temperature (Bauder 1992).
    Limnanthes gracilis ssp. parishii (Parish's meadowfoam) was first 
described by W.L. Jepson (1936) as Limnanthes versicolor var. parishii. 
The description was based on specimens collected by S.B. Parish at the 
Stonewall Mine on the southern edge of the Cuyamaca Valley, San Diego 
County, California. Mason (1952) recognized L. versicolor var. parishii 
as L. gracilis var. parishii, based on flower and fruit morphology. 
Beauchamp (1986b) elevated the plant to a subspecies based on 
consistency with other treatments of this genus, and the geographic 
separation (over 1,200 kilometers (km) (800 miles (mi)) from L.g. ssp. 
gracilis, which is found in southern Oregon.
    Limnanthes gracilis ssp. parishii is a member of the meadowfoam 
family (Limnanthaceae), a small family of wetland species found 
primarily along the Pacific coast of North America. The plant is a low, 
widely branching annual with stems 10 to 20 cm (4 to 8 in) long. The 
leaves are 2 to 6 cm (0.5 to 2 in) long and divided. The flowers are 
bowl-shaped, the petals are 8 to 10 mm (0.25 to 0.5 in) long with a 
white or occasionally with a cream-colored base that becomes pink 
(Ornduff 1993). The fruit is rough textured. L. gracilis ssp. parishii 
blooms from April through May, setting seed in the late spring and 
early summer. Germination requires saturated soils or inundation (Munz 
1974, Bauder 1992).
    The range of Limnanthes gracilis ssp. parishii is separated by over 
480 km (300 mi) from any other species of Limnanthes. L.g. ssp. 
parishii is distinguished morphologically from L.g. ssp. gracilis by 
its smaller flowers, broader sepals, and smooth nutlets (Abrams 1951, 
Mason 1952).
    Limnanthes gracilis ssp. parishii is restricted to moist montane 
meadows, mudflats, and along stream courses in the Palomar, Cuyamaca, 
and Laguna mountains of San Diego County, California. Fewer than 20 
populations of this taxon exist. The largest population occurs in the 
Cuyamaca Valley in the vicinity of Cuyamaca Lake and Stonewall Creek 
and is restricted to the shore of Cuyamaca Lake at maximum inundation. 
The majority of this population is on private lands but extends onto 
California State Parks and Recreation lands.
    Historically, the Cuyamaca Valley population of Limnanthes gracilis 
ssp. parishii occurred throughout much of the valley floor. Recently, 
the Cuyamaca Valley population of L. gracilis ssp. parishii was 
described as consisting of 100 stands by Bauder (1992), and 8 small 
populations by the California Natural Diversity Data Base (CNDDB) 
(1992). However, these smaller groupings are contiguous, separated by 
less than 1.5 km (1 mi), and concentrated within a 9 square km (4 
square mi) area. Approximately 120 hectares (ha) (300 acres (ac)) of a 
potential 800 ha (2,000 ac) of the Cuyamaca Valley and Stonewall Creek 
area are occupied by L. gracilis ssp. parishii. The number of 
individuals and the location and size of stands within this area varies 
in any given year in response to rainfall, the extent of winter 
flooding, and temperature (Bauder 1992). Under favorable conditions, L. 
gracilis ssp. parishii can be a conspicuous element of the Cuyamaca 
Valley during the spring bloom (Craig Rieser, Pacific Southwest 
Biological Services, pers. comm., 1993).
    Other populations of Limnanthes gracilis ssp. parishii are 
considerably smaller, both in number of individuals and the extent of 
occupied habitat relative to the Cuyamaca Valley population. They range 
in size from less than 2 ha (5 ac) to as much as 40 ha (100 ac) in 
extent, and most populations contain fewer than 1000 individuals. At 
least five of these other populations occur on National Forest lands. A 
single isolated population is located in vernal pools on the Santa Rosa 
Plateau of southwestern Riverside County, California. This area of 
approximately 2 ha (5 ac) is managed by The Nature Conservancy (TNC). 
One additional population has been introduced to National Forest lands 
in the Laguna Mountains from seeds gathered from the Cuyamaca Valley 
population (Winter 1991, CNDDB 1992).

Previous Federal Action

    Federal government action on the two plant taxa considered in this 
rule began as a result of section 12 of the Endangered Species Act of 
1973, which directed the Secretary of the Smithsonian Institution to 
prepare a report on those plants considered to be endangered, 
threatened, or extinct. This report, designated as House Document No. 
94-51, and presented to Congress on January 9, 1975, recommended 
Limnanthes gracilis var. parishii (= L.g. ssp. parishii) for endangered 
status. The Service published a notice in the July 1, 1975, Federal 
Register (40 FR 27823), of its acceptance of the report as a petition 
within the context of section 4(c)(2) (now section 4(b)(3)(A)) of the 
Act, and of the Service's intention to review the status of the plant 
taxa named therein, including L.g. ssp. parishii. The Service published 
a proposal in the June 16, 1976, Federal Register (42 FR 24523) to 
determine approximately 1,700 vascular plants to be endangered species 
pursuant to section 4 of the Act. Limnanthes gracilis ssp. parishii was 
included in this Federal Register notice.
    General comments received in response to the 1976 proposal were 
summarized in an April 26, 1978, Federal Register notice (43 FR 17909). 
The Endangered Species Act amendments of 1978 required all proposals 
over 2 years old to be withdrawn, although a 1-year grace period was 
given to those proposals. In the December 10, 1979, Federal Register 
(44 FR 70796), the Service published a notice of withdrawal for that 
portion of the June 6, 1976, proposal that had not been made final and 
which included L. g. ssp. parishii.
    The Service published an updated Notice of Review of Plants in the 
Federal Register on December 15, 1980 (45 FR 82480). This notice 
included Downingia concolor var. brevior and Limnanthes gracilis ssp. 
parishii as category 1 candidate taxa (species for which data in the 
Service's possession are sufficient to support a proposal for listing). 
On November 28, 1983, the Service published a supplement to the Notice 
of Review of Plants in the Federal Register (48 FR 53640). This notice 
was again revised on September 27, 1985 (50 FR 39526). Both plant taxa 
were included in 1983 and 1985 supplements to the Notice of Review of 
Plants as category 2 candidate taxa (species for which data in the 
Service's possession indicate listing may be appropriate, but for which 
additional biological information is needed to support a proposed 
rule). The Notice of Review of Plants was again revised on February 21, 
1990 (55 FR 6184), and again on September 30, 1993 (58 FR 51144). 
Downingia concolor var. brevior was included as a category 1 candidate 
taxon, and Limnanthes gracilis ssp. parishii as a category 2 candidate 
taxon in both notices.
    Section 4(b)(3)(B) of the Endangered Species Act of 1973, as 
amended in 1982, requires the Secretary to make findings on pending 
petitions within 12 months of their receipt. Section 2(b)(1) of the 
1982 amendments further requires that all petitions pending on October 
13, 1982 be treated as having been newly submitted on that date. This 
was the case for Limnanthes gracilis ssp. parishii because the 1975 
Smithsonian report had been accepted as a petition. On October 13, 
1983, the Service found that the petitioned listing of this species was 
warranted but precluded by other pending listing proposals of higher 
priority, pursuant to section 4(b)(3)(B)(iii) of the Act. Notification 
of this finding was published in the Federal Register on January 20, 
1984 (49 FR 2485). Such a finding requires the petition to be recycled, 
pursuant to section 4(b)(3)(C)(i) of the Act. The finding was reviewed 
in October of 1984, 1985, 1986, 1987, 1988, 1989, 1990, 1991, and 1992.
    The Service made a final ``not warranted'' finding on the 1975 
petition with respect to L. g. ssp. parishii and 864 other species in 
the December 9, 1993, Federal Register (58 FR 64828-45). One reason was 
cited as the basis for this finding on this species that was based upon 
data not then available to the Service in late summer 1993: current 
threats (i.e., the five factors described below under 50 CFR 424.11) 
throughout a significant portion of the species' range. The species was 
retained in Category 2 on the basis that it may be subject to 
extinction or endangerment from uncontrolled loss of habitat or from 
other man-caused changes to its environment (58 FR 64840). Since the 
summer of 1993, the Service has completed or obtained survey and other 
data that adequately describe those factors that are placing L. g. ssp. 
parishii at risk of extinction. The Service has proceeded to propose 
this species along with the Lake Cuyamaca downingia that occupies the 
same general part of southern California.
    On December 14, 1990, the Service received a petition dated 
December 5, 1990, from Mr. David Hogan of the San Diego Biodiversity 
Project, to list Downingia concolor ssp. brevior (=D. c. var. brevior) 
as an endangered species. The petitioner also requested the designation 
of critical habitat for this species. The Service evaluated the 
petitioner's requested action for D. c. var. brevior and published a 
90-day finding on August 30, 1991 (56 FR 42968) that substantial 
information existed indicating that the requested action may be 
warranted. Publication of this proposal constitutes the final finding 
that the petitioned action is warranted for this species.

Summary of Factors Affecting the Species

    Section 4 of the Endangered Species Act (16 U.S.C. 1531 et seq.) 
and regulations (50 CFR Part 424) promulgated to implement the listing 
provisions of the Act set forth the procedures for adding species to 
the Federal lists. A species may be determined to be an endangered or 
threatened species due to one or more of the five factors described in 
section 4(a)(1) and 50 CFR 424.11. These factors and their application 
to Downingia concolor E. Greene var. brevior McVaugh (Cuyamaca Lake 
downingia) and Limnanthes gracilis Howell ssp. parishii (Jepson) Beauch 
(Parish's meadowfoam) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 
of its Habitat or Range

    Impacts that result in the loss, degradation, and fragmentation of 
vernally moist wet meadows are contributing to the decline of 
Limnanthes gracilis ssp. parishii and Downingia concolor var. brevior. 
The habitat for both these taxa is threatened by recreational 
developments, off-road vehicle use, trampling, alterations of hydrology 
and the introduction of exotic plants.
    Historically, montane wet meadow and vernal pool habitats were much 
more abundant in the Peninsular Ranges of San Diego County (Winter 
1991). The wet meadows surrounding Cuyamaca Lake reservoir support the 
most significant populations of Limnanthes gracilis ssp. parishii and 
Downingia concolor var. brevior. The entire Cuyamaca Valley was 
originally a montane meadow-vernal pool complex. Dredging during dam 
construction in 1886 altered the natural topography of the valley and 
its vernal pools. Mima mounds were likely excavated since ``much of the 
earth used for the dam was taken from the meadow north of the dam and 
from the valley floor'' (Allen and Curto 1987). Later, 160 ha (400 ac) 
of the valley outside the reservoir was leased from Helix Water 
District and planted in grain.
    Loss of wet meadow habitat continues as a result of excessive water 
inundation at Cuyamaca Lake reservoir and within Cuyamaca Valley above 
the dike. Studies of Limnanthes gracilis ssp. parishii and Downingia 
concolor var. brevior, conducted between 1988 and 1992, have 
demonstrated that extended inundation at Cuyamaca Lake caused 
extirpation of stands for these two species (Bauder 1992). The 
reservoir provides domestic water, flood control, and recreational 
activities such as fishing and duck hunting. These uses are 
administered through agreements between the Helix Water District, the 
City of San Diego's El Capitan Reservoir, and Lake Cuyamaca Recreation 
and Park District (Bauder 1992). Approximately 81 ha (150 ac) of 
potential meadow habitat are permanently inundated. The system of dikes 
built in 1967 allows an additional 273 ha (675 ac) to be inundated for 
extended periods of time during periods of high precipitation; that 
occurred as recently as 1993 (Hugh Marks, Cuyamaca Lake Recreation and 
Parks District Manager, pers. comm., 1993). L. gracilis ssp. parishii 
is less able to recover from excessive inundation than D. concolor var. 
brevior, as shown by the lack of re-establishment in areas of previous 
inundation (Bauder 1992).
    A variety of indirect impacts are associated with the diversion of 
water entering the Cuyamaca Lake reservoir basin. Diversion often 
results in the alteration of small drainages by down cutting and 
streambank erosion, which contributes to the loss of potentially 
suitable habitat upstream of Cuyamaca Lake. Fluctuating lake levels 
also increase channel erosion by changing the gradient and velocity of 
surrounding drainages. Erosion is further intensified by the decrease 
in groundwater levels caused by numerous wells in the area. When 
streamflow velocities are high, Downingia and Limnanthes seeds and 
plants can be buried or washed away. In dry years, meadows exposed by 
the receding shoreline dry prematurely as the groundwater level falls. 
Roads without adequate culverts also divert water flow. Road 
maintenance and herbicidal weed abatement often preclude the re-
establishment of seeds in areas of suitable habitat (Bauder 1992). In 
addition, the alteration of hydrology in Cuyamaca Valley promotes the 
invasion of exotic species (e.g., Lolium perenne (ryegrass) and Poa 
pratensis (Kentucky bluegrass)) known to displace native plant species. 
These indirect effects can have significant, long-term impacts on the 
meadow habitats and associated sensitive plant species.
    Direct loss of both species' habitat at the reservoir is 
substantial. For example, a parking lot and a campground on the south 
end of Cuyamaca Lake reservoir at Los Caballos have displaced habitat 
(Bauder 1992). The Prado campground on the Cleveland National Forest 
also displaced Limnanthes gracilis ssp. parishii (Devoree Volgarino, 
Cleveland National Forest, pers. comm., 1993). The construction of a 
Boy Scout trail in 1976 destroyed a population of L. g. ssp. parishii 
in Canebrake Canyon, north of Cuyamaca Lake (CNDDB 1992). A trail 
around the perimeter of Cuyamaca Lake bisects several populations of 
both species (Ellen Bauder, Ph.D., Department of Biology, San Diego 
State University, pers. comm., 1993).
    Several large wet meadows in the Laguna Mountains of the Cleveland 
National Forest support Limnanthes gracilis ssp. parishii. However, the 
creation of two shallow reservoirs in these meadows have resulted in 
year round inundation of potential L.g. ssp. parishii habitat (Winter 
1991).
    Traffic from off-road vehicles, horses, and hikers in the Laguna 
Mountain meadows indirectly impacts Limnanthes gracilis ssp. parishii 
by altering the composition of the plant community over time. Such 
damage frequently occurs in spring when the soils are saturated and 
subject to compaction (Winter 1991). Loss and modification of L. 
gracilis ssp. parishii habitat has been documented as a result of 
trampling, erosion, and alteration of hydrology at most of the 
locations occupied by this species (Bauder 1992). L. gracilis ssp. 
parishii may be more subject to trampling than Downingia concolor var. 
brevior because it grows around the drier periphery of meadows. Some 
equestrian camps in Laguna Mountain meadows have displaced habitat of 
L. g. ssp. parishii, and its proximity to other camps has resulted in 
trampling (Bauder 1992).

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Overutilization is not known to be a threat to the two plant taxa 
under consideration in this proposed rule. Vandalism or collection are 
not known to threaten these species.

C. Disease or Predation

    Disease is not known to be a factor affecting the taxa under 
consideration in this rule. Consumption of individual plants by grazing 
animals has been known to impact the reproduction of these annual 
plants and has had other affects, such as trampling, erosion (see 
Factor A) and the introduction of non-native species (see Factor E). 
Grazing was discontinued on Helix Water District-owned lands at 
Cuyamaca Lake in 1986 when Downingia concolor var. brevior was believed 
to be extinct as a result of grazing (David Hogan, San Diego 
Biodiversity Project, in litt., 1990; Joseph Young, Helix Water 
District, pers. comm., 1993). The plant re-established itself the 
following season (Bauder 1992). Livestock grazing was terminated in 
Cuyamaca State Park in 1956, with the exception of a 16 ha (40 ac) 
parcel that was grazed until 1980 when it was acquired by the State 
Park. Grazing still continues on privately owned pastures east of the 
reservoir. The Cleveland National Forest still allows grazing in these 
sensitive meadows but recently adopted late season grazing regimes to 
avoid loss of individual plants due to actual consumption (Volgarino, 
pers. comm., 1993).

D. The Inadequacy of Existing Regulatory Mechanisms

    Existing regulatory mechanisms that could provide some protection 
for these species include: (1) listing under the California Endangered 
Species Act (CESA); (2) the California Environmental Quality Act (CEQA) 
and the National Environmental Policy Act (NEPA); (3) conservation 
provisions under section 404 of the Federal Clean Water Act (CWA) and 
section 1603 of the California Fish and Game Code, (4) occurrence with 
other species protected by the Federal Endangered Species Act; (5) land 
acquisition and management by Federal, State, or local agencies, or by 
private groups and organizations, and (6) local laws and regulations.
    The California Fish and Game Commission has listed Downingia 
concolor var. brevior and Limnanthes gracilis ssp. parishii as 
endangered under the Native Plant Protection Act (NPPA) (Div. 2, 
chapter 10, section 1900 et seq. of the California Fish and Game Code) 
and the California Endangered Species Act (CESA) (Div. 3, chapter 1.5 
section 2050 et seq.). After the California Department of Fish and Game 
notifies a landowner that a State-listed plant occurs on his or her 
property, the Fish and Game Code requires only that the landowner 
notify the agency ``at least 10 days in advance of changing the land 
use to allow salvage of such plant'' (Chapter 10, section 1913, 
California Fish and Game Code). Therefore, although NPPA and CESA both 
prohibit the ``take'' of State-listed plants (Chapter 10, sections 1908 
and Chapter 1.5, section 2080, California Fish and Game Code), these 
statutes are not adequate to protect the taking of such plants via 
habitat modification or land use change by the landowner.
    The California Environmental Quality Act (CEQA) (Public Resources 
Code, section 21000 et seq.) requires full disclosure of the potential 
environmental impacts of proposed projects. The public agency with 
primary authority or jurisdiction over the project is designated as the 
lead agency and is responsible for conducting a review of the project 
and for consulting with the other agencies concerned with the resources 
affected by the project. CEQA documentation is often inadequate or 
incomplete, and compliance with CEQA is not monitored. Section 15065 of 
the CEQA Guidelines requires a finding of significance if a project has 
the potential to ``reduce the number or restrict the range of a rare or 
endangered plant or animal.'' However, even if significant effects are 
identified, the lead agency has the option to require mitigation 
through changes in the project or to decide that ``overriding social 
and economic considerations'' make mitigation infeasible (California 
Public Resources Code, Guidelines, section 15093). In the latter case, 
projects may be approved that cause significant environmental damage, 
such as destruction of endangered plant species. Protection of listed 
plant species under CEQA is therefore dependent upon the discretion of 
the lead agency, hence, this is not adequate to ensure the survival of 
a species.
    The Cuyamaca Recreation and Park District is the lead agency that 
is empowered to uphold and enforce CEQA regulations at Cuyamaca Lake 
reservoir. However, unresolved conflicts exist regarding the use of 
this area for recreation and habitat protection for state endangered 
species. The Cuyamaca Recreation and Park District receives funding 
from CDFG, State Bonds, California Division of Parks and Recreation, 
U.S. National Park Service Land and Water Grants, and other sources, 
which have been used to stock the reservoir with fish, build duck 
blinds, a boat ramp, picnic facilities and a fishing trail around the 
western portion of the reservoir between the dam and the dike. Projects 
that use state money must comply with CEQA on each project or funding 
can be withdrawn. Impacts to Limnanthes gracilis ssp. parishii and 
Downingia concolor var. brevior occur during implementation of these 
projects and may continue to occur as a result of maintenance and use 
of these facilities. The Cuyamaca Recreation and Park District, acting 
as the state lead agency, has issued negative declarations for its 
improvement and maintenance activities, which exempts them from the 
requirement for a full environmental analysis. Other signatory state 
agencies have not monitored CEQA compliance by the Cuyamaca Recreation 
and Park District (Jack Shu, California State Parks Department, pers. 
comm., 1993). These factors have resulted in removal of plants and 
habitat loss as discussed in factor A above.
    While CEQA pertains to projects on non-Federal land, the National 
Environmental Policy Act (NEPA) (42 U.S.C. 4321 to 4347) requires 
disclosure of the environmental effects of projects within Federal 
jurisdiction. Species that are listed by the State, but not proposed or 
listed as threatened or endangered by the Federal government, are not 
protected when a proposed Federal action meets the criterion for a 
``categorical exclusion''. NEPA requires that each of the project 
alternatives recommend ways to ``protect, restore and enhance the 
environment'' and ``avoid and minimize any possible adverse effects'' 
when implementation poses significant adverse impacts. However, it does 
not require that the lead agency select an alternative with the least 
significant impacts to the environment (40 CFR 1500 et seq.). Federal 
actions that may affect Federal threatened or endangered species 
require consultation with the Fish and Wildlife Service under section 7 
of the Endangered Species Act and must avoid jeopardizing the continued 
existence of a listed plant species and destruction or adverse 
modification of critical habitat.
    The Cuyamaca Recreation and Park District is also subject to NEPA 
because projects for recreational improvements may be funded through 
the Federal Land and Water Grant program that is administered by the 
National Park Service through the California Department of Parks and 
Recreation. These projects would require NEPA review. Land-use planning 
decisions at the local level are made on the basis of environmental 
review documents prepared in accordance with CEQA or NEPA that often do 
not adequately address ``cumulative'' impacts to non-listed species and 
their habitat. State listed species that are candidates for Federal 
listing receive no special consideration under NEPA.
    Section 1603 of the California Fish and Game Code authorizes the 
Department of Fish and Game to regulate streambed alteration. The 
Department must be notified and approve any work that diverts, alters, 
or obstructs the natural flow or changes the bed, channel, or banks of 
any river, stream, or lake. If the Department does not respond within 
30 days of the notification, the applicant may proceed with the work. 
All waterways of the State, including streams, intermittent streams, 
rivers, and lakes are subject to the Department's jurisdiction. 
However, the Department of Fish and Game does not consider the creation 
of wetlands for duck habitat to be regulated under section 1603. Thus, 
a Streambed Alteration Agreement was not required for flooding the 
streambed above Cuyamaca Lake reservoir for that purpose. Because the 
dam has been used continuously since its construction in 1886, 
justification of its continued use for recreation has been 
grandfathered into law (William D. Smith, Lake Cuyamaca Recreation and 
Park District, in litt., 1993). Therefore, Limnanthes gracilis ssp. 
parishii and Downingia concolor var. brevior receive no protection 
under section 1603.
    Section 404 of the Clean Water Act authorizes the Army Corps of 
Engineers (Corps) to regulate discharge of dredge or fill materials 
into waters of the United States, including wetlands. The objective of 
the Clean Water Act is to ``restore and maintain the chemical, 
physical, and biological integrity of the Nation's waters'' (Pub. L. 
92-500), which include navigable and isolated waters, headwaters, and 
adjacent wetlands. However, no specific provisions exist that 
adequately address the need to conserve candidate species. Therefore, 
Limnanthes gracilis ssp. parishii and Downingia concolor var. brevior 
currently receive no special consideration under section 404.
    Even though some of the areas surrounding Cuyamaca Lake reservoir 
are wetlands, water management activities are not regulated under 
section 404 of the Clean Water Act, and these activities have the 
potential to adversely affect the two taxa under consideration in this 
proposed rule. Several small water impoundments in streams around 
Cuyamaca Lake reservoir may qualify for authorization under Nationwide 
Permit (NWP) No. 26 of the Clean Water Act if they are less than one 
acre (0.4 ha) in size. Because projects affecting such streams or 
wetlands may proceed without notifying the Corps, evaluation of their 
impacts under section 404 is precluded. An individual permit may be 
required by the Corps if projects otherwise qualifying under NWP 26 are 
likely to have significant environmental impacts. However, the Corps is 
generally reluctant to withhold authorization under NWP 26 unless the 
existence of a Federally listed species is likely to be jeopardized or 
if the action impacts a vernal pool (Bruce Henderson, Army Corps of 
Engineers, pers. comm., 1993).
    Section 404 of the Clean Water Act regulates clearing of vegetation 
by mechanical means (e.g., bulldozing) but does not currently regulate 
any method of clearing that does not disturb the soil or channel 
bottom. Thus, the ongoing use of herbicides to remove vegetation from 
Cuyamaca Lake reservoir is not regulated under section 404, although 
water quality certification must be obtained from the Regional Water 
Quality Control Board under section 401 of the Clean Water Act (Bruce 
Henderson, pers. comm., 1993).
    Limnanthes gracilis ssp. parishii and Downingia concolor var. 
brevior have been exposed to artificial flooding and draining of their 
habitat, herbicides, and trampling from maintenance vehicles and 
recreational activities. For these reasons, the Service finds that 
these species currently receive inadequate protection under section 404 
of the Clean Water Act and section 1603 of the California Fish and Game 
Code.
    No federally listed species inhabit vernally wet meadows in the 
Peninsular Ranges of southern California. Therefore, these two species 
proposed for listing receive no federal regulatory protection resulting 
from sympatry with listed species.
    Limnanthes gracilis ssp. parishii is recognized by the Cleveland 
National Forest as a ``sensitive species'' (Winter 1991). The Cleveland 
National Forest has policies to protect sensitive plant taxa under its 
jurisdiction, including attempting to establish these species in 
unoccupied but suitable or historic habitat, encouraging land ownership 
adjustments to acquire and protect sensitive plant habitat, conserving 
meadow water tables, and protecting montane meadow habitats (Winter 
1991). However, these guidelines have not been entirely effective. For 
example, implementation of plans to supply an equestrian campground 
with water from a well at Filaree Flat in the Laguna Mountains may 
alter meadow hydrology (Volgarino, pers. comm., 1993). The Cleveland 
National Forest has addressed trampling impacts to L.g. ssp. parishii 
by placing interpretive signs and fencing around populations at the 
Shrine Camp, Prado campgrounds, and Morris Ranch meadow. In addition, 
an alternative location for a proposed campground at Filaree Flat is 
being considered to avoid impacts to L.g. ssp. parishii. A late season 
grazing regime has been enacted at several of these meadows (Winter 
1991; Volgarino, pers. comm., 1993). Fencing sensitive habitat areas 
minimizes impacts but does not prevent entry by hikers or mountain 
bikers. In some cases, plants that remain unprotected within 
campgrounds are severely trampled by campers. While Forest Service 
management practices have reduced impacts in certain areas, the 
majority of L.g. ssp. parishii populations are located on private lands 
that currently do not receive adequate protection. No populations of 
Downingia concolor var. brevior occur on lands under Forest Service 
jurisdiction.
    The California Department of Parks and Recreation has eliminated 
grazing from meadows containing Limnanthes gracilis ssp. parishii at 
Cuyamaca State Park. However, other impacts to these species and their 
habitat continue to occur in this area, including trampling by horses, 
unauthorized trails, vehicle parking, off-road vehicle use, diversion 
of water flow, erosion, channelization, and water impoundment. No 
habitat has been set aside exclusively for the protection of D. 
concolor var. brevior (Bauder 1992).
    The Santa Rosa Plateau Preserve is managed by The Nature 
Conservancy for the long-term protection of sensitive species. However, 
only a single, small population of Limnanthes gracilis ssp. parishii is 
located within the preserve.
    Local laws and regulations are insufficient to protect habitat for 
Downingia concolor var. brevior and Limnanthes gracilis ssp. parishii. 
For example, the County of San Diego generally does not provide 
protection for sensitive plant species unless they are actually 
Federally listed (Hogan, pers. comm., 1993).

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Stochastic extinction threatens both Downingia concolor var. 
brevior and Limnanthes gracilis ssp. parishii by virtue of their small 
population size and restricted distribution. The likelihood of finding 
a normal distribution of genetic variability is reduced in small 
populations (Jensen 1987). Reduced genetic variability may lower the 
ability of these populations to survive. The potential for local 
extirpation due to small population size can be exacerbated by 
environmental conditions such as drought, flooding, or fire (Gilpin and 
Soule 1986, Falk and Holsinger 1991).
    Due to their accessibility, populations of these two taxa are 
particularly vulnerable to trampling. As discussed under factor A 
above, trampling from cattle occurs in meadows occupied by Limnanthes 
gracilis ssp. parishii and Downingia concolor var. brevior in the 
National Forest and private land holdings. As discussed under factor D 
above, several measures were initiated during the past decade to 
protect the vernally wet meadow ecosystem and associated sensitive 
plant species at Cuyamaca State Park and the Cleveland National Forest. 
However, these measures have not prevented trampling by hikers and 
horses.
    Introduced species of grasses and forbs have invaded many of 
California's plant communities. Such weedy species can displace the 
native flora by out competing them for nutrients, water, light, and 
space. Weedy plant invasions are facilitated by disturbances such as 
grazing, urban and residential developments, and various recreational 
activities. Introduced weeds have become established in many portions 
of the Laguna Mountains thereby reducing the amount of suitable habitat 
for native plant species (Sproul 1979). For example, the invasion of 
exotic species including Lolium perenne (ryegrass) and Poa pratensis 
(Kentucky bluegrass) has altered the composition of habitats supporting 
the two plant taxa under consideration in this proposed rule (Sproul 
1979).
    Trampling by livestock typically changes the composition of native 
plant communities by reducing or eliminating those species that cannot 
withstand trampling and predation (see Factors A and C), and enabling 
more resistant (usually exotic) species to increase in abundance. 
Introduction of seed from non-sterile hay and animal feces increases 
the likelihood of invasion of exotic species and prevents re-
establishment of native plants. Taxa that were not previously part of 
the native flora may be introduced and flourish under a grazing regime 
and may reduce or eliminate native plant species through competition 
for resources. Grazing is considered to be a threat to all populations 
of Limnanthes gracilis ssp. parishii within the Cleveland National 
Forest, primarily as a result of trampling and the invasion of non-
native species into sensitive plant habitats (Winter 1991).
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by these species in determining to propose this 
rule. Based on this evaluation, the Service finds that Downingia 
concolor var. brevior is in imminent danger of extinction throughout 
all or a significant portion of its range due to habitat destruction 
and degradation resulting from hydrologic alterations, grazing, 
trampling by recreational activities, the inadequacy of existing 
regulatory mechanisms, an increased probability of stochastic 
extinction, and competition from exotic plant species. The Service 
considered threatened status for this species, but determined that it 
such status would not be in keeping with the purposes of the Act 
because the single remaining population consists of only 8 to 23 stands 
within a restricted range, and is at risk of extirpation due to 
stochastic events such as water inundation. Therefore, the preferred 
action is to list Downingia concolor var. brevior as endangered.
    For the reasons discussed below, the Service finds that Limnanthes 
gracilis ssp. parishii is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its 
range. Threats to this taxon include the following: habitat destruction 
and degradation resulting from hydrologic alterations, grazing, 
trampling by recreational activities, the inadequacy of existing 
regulatory mechanisms, stochastic extinction, and competition from 
exotic plant species. The Service has determined that threatened rather 
than endangered status is appropriate for L.g. ssp. parishii primarily 
because the California Department of Parks and Recreation, the 
Cleveland National Forest, and The Nature Conservancy have initiated 
some measures to protect this species. Within these areas, management 
activities have included fencing, signing, and monitoring of habitat 
supporting L.g. ssp. parishii. However, most localities containing this 
taxon remain vulnerable to trespass and trampling and to hydrologic 
alterations. The largest population of this species occurs mostly on 
private lands that are not protected. For these reasons, the Service 
finds that L.g. ssp. parishii is likely to become endangered in the 
foreseeable future if present threats and declines continue. The 
alternative of not listing these species would result in inadequate 
protection for these species, and would be inconsistent with the 
purposes of the Act. For the reasons discussed below, the Service is 
not proposing to designate critical habitat for these species at this 
time.

Critical Habitat

    Section 4(a)(3) of the Act, as amended, requires that, to the 
maximum extent prudent and determinable, the Secretary propose 
designation of critical habitat at the time a species is proposed for 
listing as endangered or threatened. Section 4(b)(6)(C) further 
indicates that a concurrent critical habitat designation is not 
required if the Service finds that a prompt determination of endangered 
or threatened status is essential to the conservation of the involved 
species, or that critical habitat is not then determinable. The Service 
finds that designation of critical habitat for Limnanthes gracilis ssp. 
parishii and Downingia concolor var. brevior is prudent but not 
presently determinable. Within 2 years of the publication date of this 
rule the Service will designate critical habitat unless the designation 
is found to be not prudent.
    The Service intends to propose designation of critical habitat for 
those populations of Limnanthes gracilis ssp. parishii and Downingia 
concolor var. brevior that would not likely be imperiled by the threat 
of vandalism, collecting, or other human activities. Section 7(a)(2) of 
the Act requires Federal agencies to insure that their actions are not 
likely to destroy or adversely modify critical habitat, or jeopardize 
the continued existence of a listed species. On lands subject to 
Federal funding, authorization, or licensing, critical habitat would 
provide an added benefit to the conservation of these species. The 
populations of L. gracilis ssp. parishii and D. concolor var. brevior 
on land owned by the Cuyamaca Recreation and Park District, land 
subject to funding through the National Park Service and the five 
populations of L. gracilis ssp. parishii on National Forest land would 
receive this added benefit from critical habitat designation. On non-
federal land, additional protection may be provided as a result of the 
increased public awareness afforded by the critical habitat 
designation. In addition, the designation of critical habitat could be 
useful for State landowners and local regulatory agencies to identify 
areas of special concern and to establish priorities for land 
management and acquisition. Designation of critical habitat would be 
likely to result in more attention and hence protection by the State 
and county agencies (J. Shu, pers. comm., 1994).
    Section 4(b)(2) of the Act requires the Service to consider 
economic and other impacts of designating a particular area as critical 
habitat. The Service must evaluate the effects of activities that occur 
within the ranges of these plants, and gather data on precise habitat 
requirements and ownership boundaries in order to precisely define the 
critical habitat of these two plant taxa. In addition, the Service must 
analyze the economics impacts that could result from the designation of 
particular areas as critical habitat. Designation of critical habitat 
for Limnanthes gracilis ssp. parishii and Downingia concolor var. 
brevior is currently not determinable due to the need for this type of 
information. A proposal to designate critical habitat at this time 
would delay this proposed rule to list the species as threatened or 
endangered. The Service finds that a prompt determination of endangered 
or threatened status for these species is essential to ensure the full 
benefits of conservation measures under the Act. The Service intends to 
propose a critical habitat designation at a later date. After receiving 
additional information, the Service may determine that designation of 
critical habitat is not prudent for L. gracilis ssp. parishii or D. 
concolor var. brevior.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing encourages and results in 
conservation actions by Federal, State, and private agencies, groups, 
and individuals. The Act provides for possible land acquisition and 
cooperation with the States and requires that recovery actions be 
carried out for all listed species. The protection required of Federal 
agencies and the prohibitions against certain activities involving 
listed plants are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) requires Federal agencies to confer 
informally with the Service on any action that is likely to jeopardize 
the continued existence of a proposed species or result in destruction 
or adverse modification of proposed critical habitat. If a species is 
listed subsequently, section 7(a)(2) requires Federal agencies to 
ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of such a species or to 
destroy or adversely modify its critical habitat. If a Federal action 
may affect a listed species or its critical habitat, the responsible 
Federal agency must enter into formal consultation with the Service.
    Federal agencies expected to have involvement with Limnanthes 
gracilis ssp. parishii and Downingia concolor var. brevior include the 
Forest Service, Army Corps of Engineers, and National Park Service. 
These agencies either administer lands containing these species or 
authorize, fund, or otherwise conduct activities that may affect these 
species. In addition, the allocation of funding through the Federal 
Emergency Management Act, Housing and Urban Development, Federal 
mortgage programs, and the Veteran's Administration may be involved 
with these species.
    The Act and its implementing regulations found at 50 CFR section 
17.61, 17.62, and 17.63 for endangered, and 17.71 and 17.72 for 
threatened species, set forth a series of general prohibitions and 
exceptions that apply to all endangered or threatened plants. With 
respect to Downingia concolor var. brevior and Limnanthes gracilis ssp. 
parishii, all trade prohibitions of section 9(a)(2) of the Act, 
implemented by 50 CFR 17.61 or 17.71, would apply. These prohibitions, 
in part, make it illegal for any person subject to the jurisdiction of 
the United States to import or export, transport in interstate or 
foreign commerce in the course of a commercial activity, sell or offer 
for sale any such species in interstate or foreign commerce, or to 
remove and reduce to possession any such species from areas under 
Federal jurisdiction.
    Seeds from cultivated specimens of threatened plant species are 
exempt from these prohibitions provided that a statement of 
``cultivated origin'' appears on their containers. In addition, for 
listed plants, the 1988 amendments (Pub. L. 100-478) to the Act 
prohibit the malicious damage or destruction on Federal lands and the 
removal, cutting, digging up, or damaging or destroying of listed 
plants in knowing violation of any State law or regulation, including 
State criminal trespass law. Certain exceptions apply to agents of the 
Service and State conservation agencies. The Act and 50 CFR 17.62, 
17.63, and 17.72 also provide for the issuance of permits to carry out 
otherwise prohibited activities involving endangered or threatened 
species under certain circumstances.
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered or threatened plants under certain circumstances. 
Regulations governing permits are codified at 50 CFR 17.62 and 17.63. 
Such permits are available for scientific purposes, to enhance the 
propagation or survival of the species. Trade permits will not likely 
be sought or issued for any of the plant species considered herein 
because they are not in cultivation.
    Requests for copies of the regulations on plants and inquiries 
regarding them should be addressed to the U.S. Fish and Wildlife 
Service, Endangered Species Permits, 911 N.E. 11th Avenue, Portland, 
Oregon, 97232-4181 (telephone 503/231-6241).

Public Comments Solicited

    The Service intends that any final action resulting from this 
proposal will be as accurate and as effective as possible. Therefore, 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to Limnanthes gracilis ssp. parishii and 
Downingia concolor var. brevior.
    (2) The location of any additional populations of these species and 
the reasons why any habitat should or should not be determined to be 
critical habitat as provided by section 4 of the Act;
    (3) Additional information concerning the range, distribution, and 
population size of these species; and
    (4) Current or planned activities in the subject area and their 
possible impacts on these species.
    The final decision on this proposal will take into consideration 
the comments and any additional information received by the Service, 
and such communications may lead to a final regulation that differs 
from this proposal.
    The Endangered Species Act provides for a public hearing on this 
proposal, if requested. Requests must be received within 45 days of the 
date of publication of the proposal. Such requests must be made in 
writing and addressed to the Field Supervisor of the Carlsbad Field 
Office (see ADDRESSES section).

National Environmental Policy Act

    The Fish and Wildlife Service has determined that an Environmental 
Assessment, as defined under the authority of the National 
Environmental Policy Act of 1969, need not be prepared in connection 
with regulations adopted pursuant to section 4(a) of the Endangered 
Species Act of 1973, as amended. A notice outlining the Service's 
reasons for this determination was published in the Federal Register on 
October 25, 1983 (48 FR 49244).

References Cited

    A complete list of all references cited herein is available upon 
request from the U.S. Fish and Wildlife Service, Carlsbad Field 
Office (see ADDRESSES above).

Author

    This rule was prepared by the staff of the Carlsbad Field Office 
(see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, and Transportation.

Proposed Regulation Promulgation

PART 17--[AMENDED]

    Accordingly, it is hereby proposed to amend Part 17, Subchapter B 
of chapter I, title 50 of the Code of Federal Regulations, as set forth 
below:
    1. The authority citation for Part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. It is proposed to amend Sec. 17.12(h) by adding the following, 
in alphabetical order under the families indicated, to the List of 
Endangered and Threatened Plants:


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                  Species                                                                                       
-------------------------------------------    Historic range      Status    When listed    Critical    Special 
   Scientific name         Common name                                                      habitat      rules  
----------------------------------------------------------------------------------------------------------------
                                                                                                                
                                                  * * * * * * *                                                 
Campanulaceae--Bellf                                                                                            
 lower family:                                                                                                  
                                                                                                                
                                                  * * * * * * *                                                 
    Downingia         Cuyamaca Lake         U.S.A. (CA)........  E           ...........           NA         NA
     concolor var.     downingia.                                                                               
     brevior.                                                                                                   
                                                                                                                
                                                  * * * * * * *                                                 
Limnanthaceae--False                                                                                            
 mermaid family:                                                                                                
                                                                                                                
                                                  * * * * * * *                                                 
    Limnanthes        Parish's meadowfoam.  U.S.A. (CA)........  T           ...........           NA         NA
     gracilis ssp.                                                                                              
     parishii.                                                                                                  
                                                                                                                
                                                  * * * * * * *                                                 
                                                                                                                
----------------------------------------------------------------------------------------------------------------

    Dated: July 26, 1994.
Mollie H. Beattie,
Director, Fish and Wildlife Service.
[FR Doc. 94-18930 Filed 8-1-94; 8:45 am]
BILLING CODE 4310-55-P