[Federal Register Volume 59, Number 162 (Tuesday, August 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20596]


[[Page Unknown]]

[Federal Register: August 23, 1994]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC42

 

Endangered and Threatened Wildlife and Plants; Proposed 
Endangered Status for Lesquerella Perforata (Spring Creek Bladderpod)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The Service proposes to determine endangered status for Spring 
Creek bladderpod pursuant to the Endangered Species Act (Act) of 1973, 
as amended. This rare plant is presently known from only a limited area 
within Tennessee's Central Basin. It is threatened by habitat 
alteration; residential, commercial, or industrial development; 
livestock-grazing; conversion of its limited habitat to pasture; and 
habitat encroachment by woody vegetation and herbaceous perennials. 
This proposal, if made final, would extend the protection and recovery 
provisions of the Act to Spring Creek bladderpod.

DATES: Comments from all interested parties must be received by October 
24, 1994. Public hearing requests must be received by October 7, 1994.

ADDRESSES: Comments, materials, and requests for a public hearing 
concerning this proposal should be sent to the Field Supervisor, 
Asheville Field Office, U.S. Fish and Wildlife Service, 330 Ridgefield 
Court, Asheville, North Carolina 28806. Comments and materials received 
will be available for public inspection, by appointment, during normal 
business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Mr. Robert R. Currie at the above 
address (704/665-1195, Ext. 224).

SUPPLEMENTARY INFORMATION:

Background

    Lesquerella perforata (Spring Creek bladderpod), described by R. C. 
Rollins (Rollins 1952), occurs within a small area in Wilson County in 
the vicinity of Lebanon, Tennessee. This winter annual is 2 to 4 
decimeters (8 to 16 inches) tall. Its auriculate leaves are oblong to 
ovate in shape. The flowers have petals that are 7 to 10 millimeters 
(0.3 to 0.4 inches) long and are white to lavender in color. It has a 
broadly ovoid-shaped fruit that is hairless on the outside and densely 
pubescent on the inside. An internal partition between the two halves 
of the fruit is ``perforated'' or missing.
    Lesquerella perforata is a winter annual that germinates in early 
fall, over-winters as small rosettes of leaves, and flowers the 
following spring. Flowering usually occurs in March and April. Soon 
after the flowers wither, the fruit matures and the plants die. The 
fruits split open and the enclosed seeds fall to the ground and lie 
dormant until the fall, when the cycle starts over again. If conditions 
are not suitable for germination the following fall, the seeds can 
remain dormant (but viable) for several years (Kral 1983, Rollins 1952, 
Rollins 1955, Baskin and Baskin 1990).
    This species is typically found growing on floodplains. It requires 
annual disturbance in order to complete its life cycle. Historically, 
this disturbance was probably provided by periodic flooding of the 
streams along which it occurs. This flooding is thought to have removed 
the perennial grasses and woody plants that quickly invade the 
floodplains without regular natural or artificial disturbance. 
Cultivation of annual crops, such as corn, provides an excellent means 
of artificially maintaining the habitat, provided there is no fall 
plowing, and herbicide use is limited. No-till farming techniques are 
believed to adversely affect the species because of the extensive use 
of herbicides required to successfully implement the technique. Row-
crop cultivation, which avoids the use of fall plowing and delays 
spring plowing until the majority of the plants have set fruit, does 
not seem to adversely affect the species (Somers et al. 1993; Shea et 
al. 1993; Somers, Massachusetts Natural Heritage and Endangered Species 
Program, personal communication, 1992).
    Lesquerella perforata is known from four populations consisting of 
13 extant sites in Wilson County, Tennessee. Three additional sites no 
longer support the species. One of the extant populations occurs along 
Spring Creek and consists of five groups of plants. Another, consisting 
of four groups of plants, is found along Lower Bartons Creek. Two sites 
are located farther upstream and are designated the Middle Bartons 
Creek population. The fourth population consists of two sites and is 
located along a tributary of Bartons Creek. All of the known sites for 
the species are found within a few miles of each other; with only one 
exception, sites are within the floodplains of Spring and Bartons 
Creeks or within the floodplain of a Bartons Creek tributary. The only 
nonfloodplain location is within a glade-like area slightly above the 
floodplain of Spring Creek (Somers et al. 1993). All of the known sites 
supporting L. perforata are privately owned, and none are protected 
through cooperative management agreements with the State or the 
Service.
    The following site specific information is from Somers et al. 
(1993).
    Spring Creek Population: Site 1 is the largest known site for the 
species and is also the L. perforata type locality. In 1992 the site 
supported over 100,000 individuals. Although this is a significant 
population, plants were much denser, and the area supporting them was 
larger, in 1980. Site 2 is a field that supported about 500 plants in 
1992. Site 3 supported 25,000 to 50,000 plants in 1992. Site 4 is a 
small area, about 90 feet long and 43 feet wide, supporting between 
1,000 and 5,000 in 1992. Site 5 is the only non-floodplain site for the 
species and was discovered during the 1992 field work to update the 
status of L. perforata. The area is a triangular-shaped glade that is 
about 150 feet long and about 100 feet wide at its widest point. The 
site was estimated to support between 500 and 1,000 plants in 1992.
    Lower Bartons Creek Population: Site 6 is a small site that 
supported about 1,000 plants in 1992. Site 7 is a small site that 
supported two small clumps (30 feet by 5 feet) of the species in 1992. 
Site 8 is a small site that supported only a few plants in 1992. Site 9 
is a medium-sized site that supported about 10,000 plants in 1992.
    Middle Bartons Creek Population: Site 10 is a small tract in an 
industrialized area near Lebanon that supported about 600 plants in 
1992. Site 11 is near Site 10 but supports a larger colony of about 
5,000 plants.
    Bartons Creek Tributary Population: Site 12 is located along 1,000 
feet of the floodplain of an ephemeral tributary of Bartons Creek. In 
1992 it supported about 450 plants. Site 13 is a small area located 
near Site 12; it contains only a few individuals. In 1992 the area was 
overgrown with dense herbaceous growth.
    Federal government actions on this species began with section 12 of 
the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), which 
directed the Secretary of the Smithsonian Institution to prepare a 
report on those plants considered to be endangered, threatened, or 
extinct. This report, designated as House Document No. 94-51, was 
presented to Congress on January 9, 1975. On July 1, 1975, the Service 
published a notice (40 FR 27823) that formally accepted the Smithsonian 
report as a petition within the context of section 4(c)(2) (now section 
4(b)(3)) of the Act. By accepting this report as a petition, the 
Service also acknowledged its intention to review the status of those 
plant taxa named within the report. Lesquerella perforata was included 
in the Smithsonian report and the July 1, 1975, notice of review. On 
June 16, 1976, the Service published a proposed rule (41 FR 24523) to 
determine approximately 1,700 vascular plant taxa to be endangered 
species pursuant to Section 4 of the Act; L. perforata was included in 
this proposal.
    The 1978 amendments to the Act required that all proposals over 2 
years old be withdrawn. On December 10, 1979 (44 FR 70796), the Service 
published a notice withdrawing plants proposed on June 16, 1976. 
Lesquerella perforata was included as a category 1 species in the 
revised notice of review for native plants published on December 15, 
1980 (45 FR 82480). Category 1 species are those for which the Service 
has information that indicates that proposing to list them as 
endangered or threatened is appropriate. This species was maintained in 
category 1 when the notice of review for native plants was revised in 
1983 (48 FR 53640) and again in 1985 (50 FR 39526), 1990 (55 FR 6184), 
and 1993 (58 FR 51144).
    The Service funded a survey in 1992 to update the status 
information on L. perforata. A final report was received in February 
1993. During the 1992 and 1993 field seasons, personnel with the 
Tennessee Department of Environment and Conservation conducted 
extensive inventories of all the known and potential sites for this 
species.
    All plants included in the comprehensive plant notices are treated 
as under petition. Section 4(b)(3)(B) of the Act, as amended in 1982, 
requires the Secretary to make certain findings on pending petitions 
within 12 months of their receipt. Section 2(b)(1) of the 1982 
amendments further requires that all petitions pending on October 13, 
1982, be treated as having been newly submitted on that date. This was 
the case for L. perforata because of the acceptance of the 1975 
Smithsonian report as a petition. Each year between 1983 and 1993 the 
Service found that the petitioned listing of this species was warranted 
but precluded by other listing actions of a higher priority and that 
additional data on vulnerability and threats were still being gathered. 
Publication of this proposal constitutes the final 1-year finding.

Summary of Factors Affecting the Species

    Section 4(a)(1) of the Act and regulations (50 CFR Part 424) 
promulgated to implement the listing provisions of the Act set forth 
the procedures for adding species to the Federal Lists. 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). These factors 
and their application to Lesquerella perforata Rollins (Spring Creek 
bladderpod) are as follows:

A. The present or threatened destruction, modification, or curtailment 
of its habitat or range

    Most of the known locations for this species are threatened by the 
encroachment of more competitive herbaceous vegetation and/or woody 
plants. Active management is required to ensure that the species 
continues to survive at all sites. Direct destruction of habitat for 
commercial, residential, or industrial development is the most 
significant threat to the species at this time. Lesquerella perforata 
is threatened by the loss of habitat through conversion of land to uses 
other than cultivation of annual crops. Historically, its habitat was 
maintained by natural events, such as flooding. Annual crop production 
is apparently the primary mechanism by which essential habitat is now 
maintained. Residential, business, or industrial construction removes 
the species' preferred habitat directly or creates an environment where 
succession is allowed to proceed or more competitive plant species are 
intentionally established or are allowed to invade the area. Conversion 
of sites to pasture or other uses that maintain a perennial cover crop 
are a significant threat. In order for this annual plant to complete 
its life cycle each year, it is essential that the sites not be plowed 
or disked after the seeds have germinated in the fall and that spring 
plowing and planting be delayed until the plants have matured in the 
spring. This requirement is easily met through the production of crops 
such as corn, provided that traditional cultivation methods are used. 
Use of no-till cultivation techniques does not appear to maintain the 
species' habitat. This is probably because of the lack of physical 
disturbance of the soil and the dependence upon herbicides that 
characterize the technique (Shea et al. 1993, Somers et al. 1993).

B. Overutilization for commercial, recreational, scientific, or 
educational purposes

    There is little or no commercial trade in Lesquerella perforata at 
this time. Most populations are very small and cannot support the 
collection of plants for scientific or other purposes. Inappropriate 
collecting for scientific purposes or as a novelty is a threat to the 
species.

C. Disease or predation

    Disease and predation are not known to be factors affecting the 
continued existence of this species at this time.

D. The Inadequacy of Existing Regulatory Mechanisms

    Lesquerella perforata is listed as an endangered plant in Tennessee 
under that State's Rare Plant Protection and Conservation Act. This law 
regulates the sale of endangered plants and prohibits anyone from 
knowingly taking an endangered plant without the permission of the 
landowner or land manager.
    Should this species be added to the Federal list of endangered and 
threatened plants, additional protection from taking will be provided 
when the taking is in violation of any State law, including State 
trespass laws. Protection from inappropriate commercial trade would 
also be provided.

E. Other Natural or Manmade Factors Affecting its Continued Existence

    None are known at this time.
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by this species in determining to propose this 
rule. Based on this evaluation, the preferred action is to list 
Lesquerella perforata as an endangered species. This species is faced 
with imminent threats from loss of habitat to development and other 
uses incompatible with the species' survival, and by competing 
vegetation that is no longer controlled by natural flood regimes. These 
threats are compounded due to the species' restricted range and limited 
number of populations. In accordance with the definitions for 
endangered and threatened species found in section 3(6) and (19) of the 
Act, endangered is the most appropriate classification for L. 
perforata.

Critical Habitat

    Section 4(a)(3) of the Act, as amended, requires that, to the 
maximum extent prudent and determinable, the Secretary designate any 
habitat of a species, which is considered to be critical habitat, at 
the time the species is determined to be endangered or threatened. 
Title 50, Part 424 of the Code of Federal Regulations, Section 
424.12(1) states that designation of critical habitat is not prudent 
when one or both of the following situations exist: (i) The species is 
threatened by taking or other human activity, and identification of 
critical habitat can be expected to increase the degree of such threat 
to the species, or (ii) Such designation of critical habitat would not 
be beneficial to the species. Both situations apply to L. perforata.
    Publication of critical habitat maps would increase public interest 
and possibly lead to additional threats for the species from collecting 
and vandalism. This species occurs at a limited number of sites, and 
most are fairly accessible. Publication of critical habitat 
descriptions and maps would make Lesquerella perforata more vulnerable 
and would increase enforcement problems.
    Critical habitat also would not be beneficial in terms of adding 
additional protection for this species under Section 7 of the Act. 
Regulations promulgated for the implementation of Section 7 provide for 
both a ``jeopardy'' standard and a ``destruction or adverse 
modification'' of critical habitat standard. Because of the highly 
limited distribution of this species, any Federal action that would 
destroy or have any significant adverse affect on its habitat would 
likely result in a jeopardy biological opinion under Section 7. Under 
these conditions, no additional benefits would accrue from designation 
of critical habitat that would not be available through listing alone.
    The owners and managers of all the known populations of this 
species will be made aware of the plants' locations and of the 
importance of protecting the species and its habitat. Should Federal 
involvement occur, habitat protection will be addressed through the 
Section 7 consultation process, utilizing the jeopardy standard. 
Protection of the species' habitat will also be addressed through the 
recovery process. No additional benefits would result from a 
determination of critical habitat. Therefore, the Service concludes 
that it is not prudent to designate critical habitat for Lesquerella 
perforata.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Endangered Species 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 Endangered Species Act provides 
for possible land acquisition and cooperation with the States and 
requires that recovery actions be carried out for all listed species. 
Such actions are initiated by the Service following listing. 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 the 
destruction or adverse modification of proposed critical habitat. If a 
species is subsequently listed, 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.
    All of the known Lesquerella perforata populations are on privately 
owned land where there is no known or anticipated Federal involvement 
at the present time.
    The Act and its implementing regulations found at 50 CFR 17.61, 
17.62, and 17.63 set forth a series of general prohibitions and 
exceptions that apply to all endangered plants. All trade prohibitions 
of Section 9(a)(2) of the Act, implemented by 50 CFR 17.61, 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 this species in interstate 
or foreign commerce, or to remove and reduce to possession the species 
from areas under Federal jurisdiction. In addition, for endangered 
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 endangered 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 and 17.63 also provide for the issuance of 
permits to carry out otherwise prohibited activities involving 
threatened species under certain circumstances. It is anticipated that 
few trade permits would ever be sought or issued because the species is 
not common in cultivation or in the wild. Requests for copies of the 
regulations on listed plants and inquiries regarding prohibitions and 
permits should be addressed to the U.S. Fish and Wildlife Service, 
Attention: Endangered and Threatened Species Permits, 1875 Century 
Boulevard, Suite 200, Atlanta, Georgia 30345 (404/679-4000).

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 these proposed rules are hereby solicited. Comments 
particularly are sought concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to Lesquerella perforata;
    (2) Tthe location of any additional populations of Lesquerella 
perforata 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 and distribution of 
this species; and
    (4) Current or planned activities in the subject area and their 
possible impacts on Lesquerella perforata.
    Final promulgation of the regulations on Lesquerella perforata will 
take into consideration the comments and any additional information 
received by the Service, and such communications may lead to the 
adoption of 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 filed within 45 days of the 
date of this proposal. Such requests must be made in writing and 
addressed to the Field Supervisor, Asheville Field Office, U.S. Fish 
and Wildlife Service, 330 Ridgefield Court, Asheville, North Carolina 
28806.

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

Baskin, J.M., and C.C. Baskin. 1990. Seed Germination Biology of the 
Narrowly Endemic Species Lesquerella stonensis (Brassicaceae). Plant 
Species Biol. 5:205-213.
Kral, R. 1983. A Report on Some Rare, Threatened, or Endangered 
Forest-related Vascular Plants of the South. USDA, Forest Service 
Tech. Pub. R8-TP2, Vol. 1. 718 pp.
Rollins, R.C. 1952. Some Crucifers of the Nashville Basin, 
Tennessee. Rhodora 54:182-192.
Rollins, R.C. 1955. The Auriculate-leaved Species of Lesquerella 
(Cruciferae). Rhodora 57:241-264.
Somers, P., A. Shea, and A. McKerrow. 1993. Status Survey Report on 
Lesquerella perforata Rollins (Spring Creek Bladderpod). Unpublished 
report to the Asheville Field Office, U.S. Fish and Wildlife 
Service, Asheville, NC. 81 pp.

Author

    The primary author of this proposed rule is Mr. Robert R. 
Currie, Asheville Field Office, U.S. Fish and Wildlife Service, 330 
Ridgefield Court, Asheville, North Carolina 28806 (704/665-1195, 
Ext. 224).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, the Service hereby proposes to amend part 17, 
subchapter B of chapter I, title 50 of the Code of Federal Regulations, 
as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

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

    2. Section 17.12(h) is amended by adding the following, in 
alphabetical order under Brassicaceae, 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   
----------------------------------------------------------------------------------------------------------------
                                                                                                                
                                                  * * * * * * *                                                 
Brassicaceae--Musta                                                                                             
 rd family:                                                                                                     
                                                  * * * * * * *                                                 
    Lesquerella      Spring Creek         U.S.A. (TN)........  E           ...........           NA           NA
     perforata.       bladderpod.                                                                               
                                                  * * * * * * *                                                 
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    Dated: July 28, 1994.
Mollie H. Beattie,
Director, Fish and Wildlife Service.
[FR Doc. 94-20596 Filed 8-22-94; 8:45 am]
BILLING CODE 4310-55-P