[Federal Register Volume 60, Number 112 (Monday, June 12, 1995)]
[Proposed Rules]
[Pages 31000-31006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14144]




[[Page 30999]]

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Part V





Department of the Interior





_______________________________________________________________________



Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Proposed Endangered 
Status for Two Tidal Marsh Plants--the Suisun Thistle and the Soft 
Bird's-Beak From the San Francisco Bay Area; Proposed Rule

  Federal Register / Vol. 60, No. 112 / Monday, June 12, 1995 / 
Proposed Rules   
[[Page 31000]] 

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD14


Endangered and Threatened Wildlife and Plants; Proposed 
Endangered Status for Two Tidal Marsh Plants--Cirsium hydrophilum var. 
hydrophilum (Suisun Thistle) and Cordylanthus mollis ssp. mollis (Soft 
Bird's-Beak) from the San Francisco Bay Area

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes 
endangered status pursuant to the Endangered Species Act of 1973, as 
amended (Act), for two plants--Cirsium hydrophilum var. hydrophilum 
(Suisun thistle) and Cordylanthus mollis ssp. mollis (soft bird's-
beak). These species are restricted to salt or brackish tidal marshes 
within the San Francisco Bay area in northern California. Habitat 
conversion, water pollution, changes in salinity, indirect effects of 
urbanization, stochastic events, mosquito abatement activities 
(including off-road vehicle use), competition with non-native 
vegetation, insect predation, erosion, inadequate regulatory 
mechanisms, and other human-caused actions variously imperil these two 
species. This proposal, if made final, would implement the Federal 
protection and recovery provisions afforded by the Act for these 
plants.

DATES: Comments from all interested parties must be received by August 
11, 1995. Public hearing requests must be received by July 27, 1995.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to the Field Supervisor, Sacramento Field Office, U.S. Fish and 
Wildlife Service, 2800 Cottage Way, Room E-1803, Sacramento, California 
95825-1846. Comments and materials received, as well as the supporting 
documentation used in preparing the rule, will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

FOR FURTHER INFORMATION CONTACT: Kirsten Tarp, Sacramento Field Office 
(see ADDRESSES section) (telephone 916/978-5801; facsimile 916/978-
5056).

SUPPLEMENTARY INFORMATION:
Background

    Cirsium hydrophilum var. hydrophilum (Suisun thistle) and 
Cordylanthus mollis ssp. mollis (soft bird's-beak) occur in either salt 
water or brackish tidal marshes fringing San Pablo and Suisun Bays in 
the San Francisco Bay area of northern California. Since 1850, this 
habitat has been drastically curtailed. Approximately 15 percent, 
12,142 hectares (ha) (30,002 acres), of the historical tidal marshland 
habitat within the San Francisco Bay area remains (Dedrick 1989).
    With the exception of the San Francisco Bay area, the mountainous 
coast of California and the narrow continental shelf provide few areas 
that are suitable for tidal marsh development (MacDonald 1990). Coastal 
salt marshes are found along sheltered margins of shallow bays, 
estuaries, or lagoons, in low lying areas that are subject to periodic 
inundation by salt water. Brackish marshes occur at the interior 
margins of coastal bays, estuaries, or lagoons where fresh water 
sources (streams and rivers) enter salt marshes. Brackish marshes are 
similar to salt marshes but differ in the degree of water and soil 
salinities. Brackish marshes are less saline than salt marshes. 
Salinity levels vary with time and space, depending on the height of 
the tides or on the amount of freshwater inflow. Vegetation communities 
in salt and brackish marshes often occur in distinct zones, depending 
on the frequency and length of tidal flooding. Both proposed plants are 
restricted to a narrow tidal band, typically in higher elevational 
zones within larger tidal marshes that have fully developed tidal 
channel networks. They usually do not occur in smaller fringe tidal 
marshes that are generally less than 100 meters (m) (300 feet (ft)) in 
width, or in nontidal areas.

Discussion of the Two Species Proposed for Listing

    Asa Gray (1888) originally described Cirsium hydrophilum var. 
hydrophilum as Cnicus breweri var. vaseyi. Subsequent authors treated 
the taxon as Carduus hydrophilus (Greene 1892), Cirsium hydrophilum 
(Jepson 1901), and Cirsium vaseyi var. hydrophilum (Jepson 1925). John 
Thomas Howell (1959) concluded that Jepson's Cirsium hydrophilum and 
Cirsium vaseyi of the Mt. Tamalpais area in Marin County, California 
are varieties of a single species, Cirsium hydrophilum. According to 
the rules for botanical nomenclature, when a new variety is described 
in a species not previously divided into infraspecific taxa, an autonym 
(automatically created name) is designated. In this case, the autonym 
is Cirsium hydrophilum var. hydrophilum.
    Cirsium hydrophilum var. hydrophilum is a perennial herb in the 
aster family (Asteraceae). Slender, erect stems 1.0 to 1.5 m (3.0 to 
4.5 ft) tall are well branched above. The spiny leaves are deeply 
lobed. The lower leaves have ear-like basal lobes; the upper leaves are 
reduced to narrow strips with strongly spine-toothed margins. Pale 
lavender-rose flower heads, 2.0 to 2.5 centimeters (cm) (1 inch (in.)) 
long, occur singly or in loose groups. The bracts of the flower heads 
have a distinct green, glutinous ridge on the back that distinguishes 
C. hydrophilum var. hydrophilum from other Cirsium species in the area. 
Cirsium hydrophilum var. hydrophilum flowers between July and 
September. Cirsium hydrophilum var. hydrophilum is restricted to Suisun 
Marsh in Solano County. In 1975, the plant was reported as possibly 
extinct because it had not been collected for about 15 years. Extensive 
surveys, however, relocated the thistle at two locations within Suisun 
Marsh (Brenda Grewell, California Department of Water Resources (CDWR), 
pers. comm. 1993). Collectively, the occurrences of C. hydrophilum var. 
hydrophilum total a few thousand individuals (Brenda Grewell, pers. 
comm. 1993). Cirsium hydrophilum var. hydrophilum grows in the upper 
reaches of tidal marshes associated with Typha angustifolia, Scirpus 
americanus, Juncus balticus, and Distichlis spicata. One occurrence is 
on California Department of Fish and Game (CDFG) lands and a second 
occurrence is on Solano County Farmland and Open Space Foundation 
lands. No active management is occurring at either location (Neil 
Havlik, Solano County Farmland and Open Space Foundation, pers. comm. 
1993; Ann Howald, CDFG, pers. comm. 1993). Its highly restricted 
distribution increases its susceptibility to catastrophic events such 
as disease or pest outbreak, severe drought, oil spills, or other 
natural or human caused disasters. Habitat conversion, habitat 
fragmentation, indirect effects from urban development, increased 
salinity, projects that alter natural tidal regime, mosquito abatement 
activities, competition with non-native plants, and inadequate 
regulatory mechanisms also threaten this taxon.
    Charles Wright collected the type specimen of Cordylanthus mollis 
ssp. mollis in November 1855, on Mare Island in San Francisco Bay. Asa 
Gray (1868) published the original description, using the name C. 
mollis. Later botanists treated the taxon as Adenostegia mollis (Greene 
1891) and Chloropyron molle (Heller 1907). Tsan- [[Page 31001]] Iang 
Chuang and Larry Heckard (1973) treated C. mollis and C. hispidus as 
subspecies of a single species (C. mollis) with Cordylanthus mollis 
ssp. mollis recognized as the autonym.
    Cordylanthus mollis ssp. mollis is an annual herb of the snapdragon 
family (Scrophulariaceae) that grows 25 to 40 cm (10 to 16 in.) tall. 
It is sparingly branched from the middle and above. Cirsium mollis ssp. 
mollis is a hemiparasite that extracts water and nutrients by attaching 
enlarged root structures to the roots of other plants (Chuang and 
Heckard 1971). The foliage is grayish-green (often tinged a deep red) 
and hairy. The oblong to lance-shaped leaves are 1.0 to 2.5 cm (0.4 to 
1.0 in.) long, the lower leaves entire and the upper with one to three 
pairs of leaf lobes. The inflorescence consists of spikes 5 to 15 cm (2 
to 6 in.) long. A floral bract with two to three pairs of lobes occurs 
immediately below each inconspicuous white or yellowish-white flower. 
The flowers have only two functional stamens. The narrowly ovoid seed 
capsule is 6 to 10 millimeters (mm) (0.2 to 0.4 in.) long and bears 20 
to 30 dark brown seeds. Cordylanthus mollis ssp. mollis flowers between 
July and September. Cordylanthus mollis ssp. mollis is distinguished 
from another Cordylanthus found nearby (C. maritimus ssp. palustris) by 
its two functional stamens (C. maritimus ssp. palustris has four) and 
by its bracts with two to three pairs of lateral lobes (C. maritimus 
ssp. palustris has a pair of short teeth on the floral bracts).
    Cordylanthus mollis ssp. mollis is found predominantly in the upper 
reaches of salt grass-pickleweed marshes at or near the limits of tidal 
action (Stromberg 1986). It is associated with Salicornia virginica, 
Distichlis spicata, Jaumea carnosa, Frankenia salina, and Triglochin 
maritima (Stromberg 1986). Of 18 reported occurrences of C. mollis ssp. 
mollis, 2 have been extirpated; 6 have been surveyed for and not 
relocated and possibly have been extirpated; and 10 are presumed extant 
(California Natural Diversity Data Base (CNDDB) 1994; Jake Ruygt, 
California Native Plant Society (CNPS), in litt. 1993). The type 
locality at Mare Island for C. mollis ssp. mollis was destroyed by 
development and is now a dredge disposal site (CNDDB 1994). A second 
occurrence, last seen in 1981 near Martinez in Contra Costa and Solano 
Counties, was dredged, filled, diked, and is now a marina (Stromberg 
1986, CNDDB 1994). Limited suitable habitat remains for two 
occurrences, which have not been relocated, in Napa, Sonoma, and Solano 
Counties (Stromberg 1986, CNDDB 1994). Although suitable habitat exists 
for three historical occurrences in Marin, Solano, and Sonoma Counties, 
the occurrences have not been relocated after repeated surveys 
(Stromberg 1986, CNDDB 1994). A fourth occurrence reported from 
Sacramento County in 1972 has not been relocated (Jake Ruygt, in litt. 
1993).
    The remaining ten disjunct occurrences are widely scattered 
throughout coastal salt or brackish tidal marshes fringing San Pablo 
and Suisun Bays, in Contra Costa, Napa, and Solano Counties (CNDDB 
1994; Brenda Grewell, in litt. 1993). The entire distribution of 
Cordylanthus mollis ssp. mollis currently is restricted to about 8 ha 
(20 acres) of habitat (Jake Ruygt, in litt. 1993). The total number of 
individuals reported among populations varies from 1 at the smallest 
site to 141,000 plants at the largest site. Most sites have between 
1,000 and 6,000 individuals (Jake Ruygt, in litt. 1993; CNDDB 1994). 
Individual populations fluctuate in size from year to year, as is 
typical of annual plants. Cordylanthus mollis ssp. mollis occurs 
primarily on private or non-Federal land; one occurrence is found on 
Department of Defense (U.S. Navy) land. Habitat conversion, water 
pollution, increases in salinity of tidal marshes due to upstream 
withdrawals of fresh water, habitat fragmentation, indirect effects of 
urbanization, competition with non-native vegetation, insect predation, 
projects that alter natural tidal regime, mosquito abatement activities 
(including off-road vehicle use), inadequate regulatory mechanisms, 
erosion, and stochastic events variously threaten the remaining 
occurrences of C. mollis ssp. mollis. 

Previous Federal Action

    Federal government actions on the two plants began as a result of 
section 12 of the Endangered Species Act of 1973, as amended (16 U.S.C. 
1531 et seq.), which directed the Secretary of the Smithsonian 
Institution to prepare a report on those plants considered to be 
endangered, threatened, or extinct in the United States. This report, 
designated as House Document No. 94-51, was presented to Congress on 
January 9, 1975, and listed Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis as possibly extinct. The Service 
published a notice on July 1, 1975 (40 FR 27823), of its acceptance of 
the report of the Smithsonian Institution as a petition within the 
context of section 4(c)(2) (petition provisions now are found in 
section 4(b)(3) of the Act) and its intention thereby to review the 
status of the plant taxa named therein. The above two taxa were 
included in the July 1, 1975, notice. On June 16, 1976, the Service 
published a proposal (41 FR 24523) to determine approximately 1,700 
vascular plant species to be endangered species pursuant to section 4 
of the Act. The list of 1,700 plant taxa was assembled on the basis of 
comments and data received by the Smithsonian Institution and the 
Service in response to House Document No. 94-51 and the July 1, 1975, 
Federal Register publication. Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis were included in the June 16, 1976, 
Federal Register proposal.
    General comments received in relation to the 1976 proposal were 
summarized in an April 26, 1978, notice (43 FR 17909). The Endangered 
Species Act Amendments of 1978 required that all proposals over 2 years 
old be withdrawn. A 1-year grace period was given to those proposals 
already more than 2 years old. In a December 10, 1979, notice (44 FR 
70796), the Service withdrew the June 16, 1976, proposal, along with 
four other proposals that had expired.
    The Service published an updated notice of review for plants on 
December 15, 1980 (45 FR 82480). The two taxa were listed as category 1 
candidates for Federal listing in this document. Category 1 taxa are 
those that the Service has on file substantial information on 
biological vulnerability and threats to support preparation of listing 
proposals. On November 28, 1983, the Service published a supplement to 
the Notice of Review (48 FR 53640); there were no changes to these taxa 
in this supplement.
    The plant notice was revised again on September 27, 1985 (50 FR 
39526), February 21, 1990 (55 FR 6184), and September 30, 1993 (58 FR 
51144). In these three notices Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis were included as category 1 candidate 
species.
    Section 4(b)(3)(B) of the Act requires the Secretary to make 
certain findings on 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 Cirsium hydrophilum var. 
hydrophilum and Cordylanthus mollis ssp. mollis, because the 1975 
Smithsonian report had been accepted as a petition. On October 13, 
1982, the Service found that the petitioned listing of these species 
was warranted, but precluded by other pending listing 
[[Page 31002]] actions, in accordance with section 4(b)(3)(B)(iii) of 
the Act; notification of this finding was published on January 20, 1984 
(49 FR 2485). The finding was reviewed annually in October of 1983 
through 1994, pursuant to section 4(b)(3)(C)(i) of the Act. Publication 
of this proposal constitutes the final finding for the petitioned 
action.

Summary of Factors Affecting the Species

    Section 4 of the Endangered Species Act (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 of 
endangered and threatened species. A species may be determined to be 
endangered or threatened due to one or more of the five factors 
described in section 4(a)(1). These factors and their application to 
Cirsium hydrophilum (Greene) Jepson var. hydrophilum (Suisun thistle) 
and Cordylanthus mollis Gray ssp. mollis (soft bird's-beak) are as 
follows:

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

    Habitat for Cirsium hydrophilum var. hydrophilum and Cordylanthus 
mollis ssp. mollis has been severely curtailed by past human 
activities. Hydraulic mining, diking and filling involved in 
agricultural land conversion and urbanization, waste disposal, port and 
industrial development, railroad construction, dredging, salt 
production, and sedimentation have drastically reduced the amount of 
tidal marsh in California (Atwater 1979, MacDonald 1990, Association of 
Bay Area Governments (ABAG) 1991). Changes in freshwater inflow, 
pollution, habitat conversion, habitat fragmentation, and alteration of 
the natural tidal regime continue to threaten the habitat of both 
species.
    In San Pablo Bay, historical tidal wetlands have been diked and 
converted to agricultural lands that were farmed for oat hay. In 
addition, approximately 4,050 ha (10,000 acres) also were converted to 
salt ponds. In Suisun Bay, most of the 28,780 ha (71,100 acres) of 
tidal marshes that existed in 1850 were converted originally to 
agricultural land, and then to diked seasonal wetlands used for 
waterfowl management. Only 3,780 ha (9,340 acres) within Suisun Marsh 
remain as tidal marsh (Dedrick 1989). Most of the remaining tidal 
marshes are backed by steep levees, allowing for little or no 
transitional wetland habitat--the habitat required by Cirsium 
hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis.
    The change of freshwater inflow has modified the habitat for these 
two taxa. Agricultural and municipal uses have diverted over 50 percent 
of the historical annual inflow of freshwater from the Suisun Marsh and 
Delta (ABAG 1991). During the past 40 years, significant portions of 
the tidally-influenced brackish marsh within Suisun Bay have become 
more saline due to decreased freshwater flows (Pavlik 1992). Increased 
salt levels within the Suisun Marsh may threaten Cordylanthus mollis 
ssp. mollis and Cirsium hydrophilum var. hydrophilum. Salt stress 
causes decreased plant growth and lower reproduction. When salinity 
levels remain high during extended drought conditions, population 
viability may be greatly impaired to the extent they lose their ability 
to maintain themselves as components of a healthy wetlands ecosystem 
(Pavlik 1992). When salinity increases in the root zone, salt stress 
reduces plant abundance and causes shifts in plant distribution. This 
has occurred even in common salt-tolerant plants (Pavlik 1992). 
Cordylanthus mollis ssp. mollis and C. hydrophilum var. hydrophilum may 
be especially vulnerable to increased salt levels due to the limited 
number of individuals and their restricted distribution.
    The two plant species also face threats from habitat fragmentation 
associated with commercial and residential development, road 
construction, and effects of historical fragmentation by activities 
associated with clearing for agriculture, railroad construction, 
dredging, and conversion to salt ponds. These activities have split 
habitat into smaller, more isolated units. Habitat fragmentation may 
alter the physical environment, changing the amount of incoming solar 
radiation, water, wind, or nutrients for the remnant vegetation 
(Saunders et al. 1991). In addition, a higher proportion of the area of 
these fragmented natural areas is subject to the influences from 
external factors (e.g., additional development, off-road vehicular use, 
competition with non-native vegetation, human intrusion, and numerous 
other human influences) that disrupt natural ecosystem processes. 
Further effects of habitat fragmentation on the two plant species are 
discussed in Factor E.
    Projects that convert habitat from tidal marsh to diked seasonal 
wetlands potentially threaten both Cirsium hydrophilum var. hydrophilum 
and Cordylanthus mollis ssp. mollis. Within Suisun Marsh, the 
conversion of tidal marsh to diked seasonal wetlands, a practice common 
in the development of waterfowl managements areas, is a potential 
threat for both species (Randall Brown, in litt. 1993). The planned 
conversion of 40 ha (100 acres) of salt grass (Distichlis spicata), an 
associated species for both C. hydrophilum var. hydrophilum and C. 
mollis ssp. mollis, in Hill Slough as enhancement of habitat for 
wildlife (California Department of Water Resources (CDWR) 1984) will 
further diminish the amount of suitable habitat for these two plant 
species.
    Habitat conversion for planned future urbanization threatens both 
species. In ABAG's analysis of the San Francisco Bay Estuary, over 
4,856 ha (12,000 acres) of wetlands in the Bay will be subject to 
moderate to high development uses over the next 12 years (ABAG 1991). 
Highway expansion projects within the San Francisco Bay Estuary during 
the next 20 years are expected to fill 146 wetland ha (362 acres) (ABAG 
1991). Some of the expansion projects will threaten Cordylanthus mollis 
ssp. mollis by eliminating additional habitat. Widening of California 
Highway 37 will threaten wetlands that occur along the Napa River (ABAG 
1991) and may adversely affect habitat for C. mollis ssp. mollis. 
Proposed widening of Highway 12 near the Suisun Marsh would threaten 
the habitat of both plants (Brenda Grewell, pers. comm. 1993), either 
due to habitat fragmentation as discussed above or by runoff.
    Projects that alter the natural tidal regime also threaten both 
taxa. The Western Suisun Marsh Salinity Control Project (CDWR and U.S. 
Bureau of Reclamation (USBR) 1991, CDWR and USBR 1993) is proposed to 
lower channel salinity in the western portion of Suisun Marsh to comply 
with water quality standards specified by the State Water Resources 
Control Board's Water Right Decision 1485. Project alternatives 
initially proposed for this project include the Cutoff Slough Water 
Delivery System, Cordelia-Goodyear Ditch, and the Boynton-Cordelia 
Ditch. The proposed Cutoff Slough Water Delivery System includes tide 
gates that would threaten tidal marsh by subjecting it to higher water 
elevations and converting the area to a natural water storage reservoir 
(Randall Brown, CDWR, in litt. 1993). Although this proposed 
alternative initially has been eliminated, this project is still in the 
proposed stage and has not been finalized. [[Page 31003]] 

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

    Overutilization currently is not known to be a factor for these two 
plants. Increased collecting for scientific or horticultural purposes 
or excessive visits by individuals interested in seeing rare plants 
could result, however, from increased publicity resulting from 
publication of this proposal.

C. Disease or Predation

    The health of one of the largest occurrences of Cordylanthus mollis 
ssp. mollis is declining due to insect predation (Brenda Grewell, pers. 
comm. 1993). Intense insect seed predation has been observed in the 
population at Joice Island and Hill Slough within Suisun Marsh in 
Solano County (Randall Brown, in litt. 1993). Neither disease nor 
predation is known to be a factor for Cirsium hydrophilum var. 
hydrophilum. 

D. The Inadequacy of Existing Regulatory Mechanisms

    Section 404 of the Clean Water Act represents the primary Federal 
law that affords some protection for these two plants. Under section 
404 of the Clean Water Act, nationwide permits may be issued for 
certain activities that are considered to have minimal impacts, 
including oil spill cleanup, minor dredging, maintenance dredging of 
existing basins, and minor bank stabilization. Activities that do not 
qualify for authorization under a nationwide permit, including projects 
that would result in more than minimal adverse environmental effects, 
either individually or cumulatively, may be authorized by an individual 
or regional general permit, which are subject to more extensive review. 
Regardless of the type of permit deemed necessary under section 404, 
candidate species may receive no special consideration.
    The Army Corps of Engineers (Corps) is the Federal agency 
responsible for administering the section 404 program. The Service, as 
part of the section 404 review process, provides comments on both pre-
discharge notices for nationwide permits and public notices for 
individual permits. The Service's comments are only advisory, although 
procedures exist for elevation when disagreements between the agencies 
arise. In practice, the Corps' actions under section 404 are 
insufficient to protect these candidate plants.
    CDFG has listed Cordylanthus mollis ssp. mollis as rare under the 
California Endangered Species Act (chapter 1.5 sec. 2050 et seq. of the 
California Fish and Game Code and title 14, California Code of 
Regulations 670.2). Listing by the State of California requires 
individuals to obtain a memorandum of understanding with the CDFG to 
possess or ``take'' a listed species. Although the ``take'' of State-
listed plants is prohibited (California Native Plant Protection Act, 
chapter 10 sec. 1908 and California Endangered Species Act, chapter 1.5 
sec. 2080), State law exempts the taking of such plants via habitat 
modification or land use changes by the owner. After CDFG notifies a 
landowner that a State-listed plant grows on his or her property, State 
law requires only that the land owner notify the agency ``at least 10 
days in advance of changing the land use to allow salvage of such a 
plant'' (Native Plant Protection Act, chapter 10 sec. 1913).
    Under the California Environmental Quality Act (CEQA), the public 
agency with primary authority or jurisdiction over the project (the 
lead agency) is responsible for conducting a review of the project and 
consulting with the other agencies concerned with the resources 
affected by the project. However, the lead agency may approve projects 
that cause significant environmental damage, such as the destruction of 
State-listed threatened and rare species, and does not always require 
adequate mitigation for the replacement or protection of the affected 
resources. The protection of species under CEQA is, therefore, 
dependent upon the discretion of the lead agency.
    Legislation enacted by the State of California in 1977 provided for 
the preservation of Suisun Marsh. This legislation established primary 
and secondary management areas. The secondary management areas were 
established to provide a buffer against development. In 1982, the 
Preservation Act was amended to exclude, in the primary management 
area, land proposed for the Lawlor Ranch development. Exclusion of this 
land has reduced the buffer between urbanization and Suisun Marsh. The 
indirect effects of urbanization are discussed further in Factors A and 
E.

E. Other Natural or Manmade Factors Affecting Their Continued Existence

    Both occurrences of Cirsium hydrophilum var. hydrophilum are 
adversely affected by non-native plants. Lepidium latifolium (perennial 
peppergrass), a rated noxious weed (California Department of Food and 
Agriculture 1993), has ``moved in especially in the last 5 years'' 
(Brenda Grewell, pers. comm. 1993). Cirsium hydrophilum var. 
hydrophilum is out-competed by L. latifolium. Hybridization with C. 
vulgare (bull thistle), a non-native, also is a potential threat. 
Cirsium vulgare hybridizes readily with other Cirsium. Hybridization 
with C. vulgare was suggested as a possible explanation for the 
previously presumed extinction of C. hydrophilum var. hydrophilum 
(Smith and Berg 1988).
    Chronic pollution from petroleum products is an ongoing threat to 
the habitat of both plants within San Pablo Bay and southern Suisun 
Bay. Oil spills can result in severe and long lasting destruction of 
salt marsh vegetation. Studies on mangroves, seagrasses, salt marsh 
grasses, and algae have shown that petroleum causes death, reduced 
growth, and impaired reproduction in large plants (Albers 1992). The 
effects of a petroleum spill to plants depends on several factors 
including the time of year, the type of petroleum product (crude or 
refined), and the degree of coverage (Hershner and Moore 1977; Rob 
Ricker, CDFG, pers. comm. 1993). A plant entirely covered by oil will 
die. Oil that seeps into sediments can affect the roots or rhizomes of 
plants as well. Oil spills may also affect plants by decreasing the 
amount of plant biomass (either above or below ground), or by 
decreasing the reproductive capacity of the plant (Rob Ricker, pers. 
comm. 1993).
    Four hundred to 800 oil spills occur annually within California 
(Rob Ricker, pers. comm. 1993). Within northern California, 309 
reported spills affecting marine or estuarine habitats within the 
jurisdiction of the Service's Sacramento Field Office occurred between 
March 1992 and March 1993 (Office of Environmental Services (OES) 1992 
and 1993). Most of these spills occurred in the San Francisco Bay 
Estuary.
    In 1988, an oil spill in Martinez, California, flowed as far as 
Suisun Bay. Although these plants are found within the northern part of 
the Suisun Marsh and may not be threatened directly by an oil spill in 
San Francisco Bay, the potential for oil spills exists from vessels 
operating within the marsh, as well as from an accidental spill from 
railroads that bisect the marsh. Oil spills also are an ever present 
threat to Cordylanthus mollis ssp. mollis occurring near Point Pinole 
(Pat O'Brien, General Manager, East Bay Regional Parks District, in 
litt. 1994).
    Chronic pollution from other sources also may threaten the habitat 
of both plants. It is unknown, however, what effects heavy metals in 
industrial discharges have on these two taxa. In 1978, 52 municipal 
treatment facilities and 42 industrial facilities continuously 
discharged wastewater into San Francisco Bay (Western Ecological 
[[Page 31004]] Services Company (WESCO) 1986). By 1982, over 200 
permits for industrial discharges had been granted (WESCO 1986).
    The amounts of heavy metals in the San Francisco Bay Estuary are 
projected to increase during the next 10 years. The San Francisco Bay 
Conservation and Development Commission, Center for Environmental 
Design Research, and the Greenbelt Alliance (1992) collectively 
modelled plausible land use changes and their impact to the health of 
the San Francisco Bay Estuary. Several methods were used to determine 
the effects of land use change including two future land use models. 
The model projecting the highest increase in heavy metal was based on a 
composite of the general plan maps for all of the counties in the 
estuary. Amounts of heavy metals including lead, nickel, and cadmium 
were projected to increase under both future land use models in all the 
watersheds that include habitat for these two plants.
    As discussed in Factor A, habitat fragmentation may alter the 
physical environment. In addition, habitat fragmentation increases the 
risks of extinction due to chance events such as pest or disease 
outbreaks, reproductive failure, or other natural or human-caused 
disasters. The small, isolated nature of Cirsium hydrophilum var. 
hydrophilum, which has only two occurrences, makes extinction from 
stochastic (random) events more likely. Chance events, such as disease 
outbreak, oil spills, extended drought, or a combination of several 
such events, could destroy part of a single population or entire 
populations. The risk of extirpation due to genetic and demographic 
problems associated with small populations is a threat to at least the 
two occurrences of Cordylanthus mollis ssp. mollis that have fewer than 
25 individuals.
    Increases in foot traffic and mosquito abatement also will result 
from increased urbanization (Brenda Grewell, pers. comm. 1993). 
Mosquito abatement activities threaten Cirsium hydrophilum var. 
hydrophilum and Cordylanthus mollis ssp. mollis. Within Suisun Marsh, 
both species grow along or near either first order channels or mosquito 
abatement drainage ditches. Cleaning or dredging along these channels 
may adversely impact individual plants due to their proximity to the 
mosquito abatement drainage ditches. Vehicular damage to plant 
populations parallel to these channels has been noted (Randall Brown, 
in litt. 1993).
    Foot traffic is a threat to Cordylanthus mollis ssp. mollis. A 
trail runs through the occurrence located on East Bay Regional Park's 
Point Pinole Regional Seashore. Foot traffic also is a potential threat 
to the largest occurrence of C. mollis ssp. mollis due to the increased 
urbanization occurring within \1/4\ mile. Although foot traffic may 
create opportunities for C. mollis ssp. mollis to become established by 
reducing competition from Salicornia, this disturbance cannot be 
considered beneficial because C. mollis ssp. mollis plants have shallow 
roots, are very brittle, and can be easily damaged (Stromberg 1986).
    Erosion is a threat to Cordylanthus mollis ssp. mollis located on 
the Point Pinole Regional Seashore. The main population of C. mollis 
ssp. mollis is immediately adjacent to a slough that is undergoing bank 
slumping (Stromberg 1986). Individual plants are threatened by the 
slumping and subsequent undercutting of the bank.
    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. Cirsium hydrophilum var. hydrophilum, limited to only two 
occurrences, is threatened variously by indirect effects of 
urbanization, vulnerability to extinction due to chance environmental 
events including oil spills, competition with non-native vegetation, 
projects that alter natural tidal regime, stochastic events, and 
inadequate regulatory mechanisms across all of its current range. 
Urbanization, industrial development, and agricultural land conversion 
have extirpated or potentially extirpated nearly 45 percent of known 
occurrences of Cordylanthus mollis ssp. mollis. The species currently 
is restricted to about 8 ha (20 acres) of habitat. Indirect effects of 
urbanization including habitat fragmentation, habitat conversion, 
alteration in water and salinity levels, inadequate regulatory 
mechanisms, mosquito abatement activities (including off-highway 
vehicle use), water pollution, insect predation, projects that alter 
natural tidal regimes, erosion, foot traffic, and extirpation due to 
genetic and demographic problems variously continue to threaten most 
occurrences of C. mollis ssp. mollis across its remaining range. 
Because C. hydrophilum var. hydrophilum and C. mollis ssp. mollis are 
in danger of extinction throughout all or a significant part of their 
respective ranges, they fit the definition of endangered species in the 
Act. The preferred action, therefore, is to list Cirsium hydrophilum 
var. hydrophilum and Cordylanthus mollis ssp. mollis as endangered. 
Other alternatives to this action were considered but not preferred 
because not listing them at all or listing them as threatened would not 
provide adequate protection and would not be in keeping with the Act.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
consideration or protection and; (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
determination that such areas are essential for the conservation of the 
species. ``Conservation'' means the use of all methods and procedures 
needed to bring the species to the point at which listing under the Act 
is no longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is listed. The Service finds that designation of critical 
habitat is not prudent for Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis at this time. Service regulations (50 
CFR 424.12(a)(1)) state that designation of critical habitat is not 
prudent when one or both of the following situations exist--(1) The 
species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species.
    The listing of these species under the Act publicizes the rarity of 
these plants and, thus, can make these plants attractive to researchers 
or collectors of rare plants. Incidents of collection or vandalism 
could contribute to the decline of the species.
    Critical habitat designation for Cirsium hydrophilum var. 
hydrophilum and Cordylanthus mollis ssp. mollis is not prudent due to 
lack of benefit. Most populations of the two taxa occur on private or 
State lands. Because both plant species occur at very few locations, 
any activity that would adversely modify critical habitat would likely 
jeopardize the continued existence of the species as well. The 
designation of critical habitat on private or State lands affords no 
additional [[Page 31005]] benefit for these species over that provided 
as a result of listing.
    Protection of the habitat of these species will be addressed 
through the section 4 recovery process and the section 7 consultation 
process. The Service believes that Federal involvement in the areas 
where these plants occur can be identified without the designation of 
critical habitat. For the reasons discussed above, the Service finds 
that the designation of critical habitat for these plants is not 
prudent.

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 
activities. 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 State and requires that recovery plans be 
developed 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 requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is being designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) of the Act requires Federal agencies to confer with the 
Service on any action that is likely to jeopardize the continued 
existence of a proposed species or result in destruction or adverse 
modification of proposed critical habitat. If a species is listed 
subsequently, section 7(a)(2) of the Act 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 consultation with the Service.
    One occurrence of Cordylanthus mollis ssp. mollis occurs on land 
that is managed by the U.S. Navy. The USBR and the Corps would become 
involved with these plants through their funding of projects that may 
directly impact the plants' habitat or support development of areas 
that contain suitable salt or brackish marshes. The Corps also would be 
involved as an authorizing agency for permits to dredge or fill 
wetlands and navigable waters of the United States. The Corps regulates 
dredging and filling of jurisdictional wetlands and navigable waters, 
including salt water marshes, under section 404 of the Clean Water Act. 
By regulation, nationwide permits may not be issued where a federally 
listed endangered or threatened species may be affected by the proposed 
project without first completing consultation pursuant to section 7 of 
the Act. The presence of a listed species would highlight the national 
importance of these resources. Highway construction and maintenance 
projects that receive funding from the Department of Transportation 
(Federal Highway Administration) also would be subject to review under 
section 7 of the Act.
    Listing Cirsium hydrophilum var. hydrophilum and Cordylanthus 
mollis ssp. mollis as endangered would provide for development of a 
recovery plan (or plans) for them. Such plan(s) would bring together 
both State and Federal efforts for conservation of the plants. The 
recovery plan(s) would establish a framework for agencies to coordinate 
activities and cooperate with each other in conservation efforts. The 
plan(s) would set recovery priorities and estimate costs of various 
tasks necessary to accomplish them. It also would describe site-
specific management actions necessary to achieve conservation and 
survival of the two species. Additionally, pursuant to section 6 of the 
Act, the Service could grant funds to affected States for management 
actions promoting the protection and recovery of these species.
    It is the policy of the Service, published in the Federal Register 
on July 1, 1994 (59 FR 34272), to identify to the maximum extent 
practicable at the time a species is listed those activities that would 
or would not constitute a violation of section 9 of the Act. The intent 
of this policy is to increase public awareness of the effect of the 
listing on proposed and ongoing activities within a species' range. 
Most occurrences of both plants are either on private or non-Federal 
lands. One population of Cordylanthus mollis ssp. mollis occurs on land 
managed by the Department of Defense (U.S. Navy). Collection, damage or 
destruction of this species on public lands is prohibited, although in 
appropriate cases a Federal endangered species permit may be issued to 
allow collection. Removal, cutting, digging up, damaging or destroying 
endangered plants on non-Federal lands would constitute a violation of 
section 9 if conducted in knowing violation of State law or regulations 
or in violation of State criminal trespass law. The Service is not 
aware of any otherwise lawful activities being conducted or proposed by 
the public that will be affected by this listing and result in a 
violation of section 9.
    The Act and its implementing regulations found at 50 CFR parts 
17.61, 17.62, and 17.63 for endangered plant species set forth a series 
of general prohibitions and exceptions that apply to all endangered or 
threatened plants. With respect to the two plants from the San 
Francisco Bay area, all prohibitions of section 9(a)(2) of the Act, 
implemented by 50 CFR 17.61, would apply. Activities that would violate 
section 9 of the Act include the import, export, delivery, receipt, 
carrying, transporting, or shipping such species in interstate or 
foreign commerce in the course of a commercial activity; the sale or 
offer for sale of such species in interstate or foreign commerce; 
removal and reduction to possession of federally listed plant species 
from areas under Federal jurisdiction; the malicious damage or 
destruction of any such plant species on any area under Federal 
jurisdiction; or the removal, cutting, digging up, damage, or 
destruction of any such plant species on any other area in knowing 
violation of any State law or regulation or in the course of any 
violation of a State criminal trespass law. Activities that are 
unlikely to violate section 9 of the Act include animal grazing, 
waterfowl hunting, bird watching, and fishing. Certain exceptions apply 
to agents of the Service and State conservation agencies. The Act and 
50 CFR parts 17.62, 17.63, and 17.72 also provide for the issuance of 
permits to carry out otherwise prohibited activities involving 
endangered or threatened plant species under certain circumstances. The 
Service anticipates few permits would ever be sought or issued for the 
two species because the plants are not common in cultivation or in the 
wild.
    Requests for copies of the regulations on listed plants and 
inquiries regarding them may be addressed to U.S. Fish and Wildlife 
Service, Ecological Services, Endangered Species Permits, 911 NE 11th 
Avenue, Portland, Oregon 97232-4181 ((503) 231-2063 or FAX (503) 231-
6243).

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 
[[Page 31006]] other interested party concerning this proposed rule are 
hereby solicited. Comments particularly are sought concerning:
    (1) Biological, commercial, or other relevant data concerning any 
threat (or lack thereof) to Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis;
    (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 areas and their 
possible impacts on these species.
    The Service particularly solicits expert opinion from independent 
specialists regarding pertinent scientific or commercial data and 
assumptions relating to taxonomy, population models, and supportive 
biological and ecological information. Any 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 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, Sacramento Field Office (see 
ADDRESSES section).

National Environmental Policy Act

    The Fish and Wildlife Service has determined that an Environmental 
Assessment or Environmental Impact Statement, 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 Act. 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 Field Supervisor, Sacramento Field Office (see 
ADDRESSES section).

Author

    The primary author of this proposed rule is Kirsten Tarp, U.S. Fish 
and Wildlife Service, Sacramento Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
    2. Section 17.12(h) is amended by adding the following, in 
alphabetical order under FLOWERING PLANTS, to the List of Endangered 
and Threatened Plants, to read as follows:


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species                                                                                                                           
---------------------------------------------------      Historic range             Family name          Status    When listed    Critical     Special  
     Scientific name             Common name                                                                                      habitat       rules   
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Flowering Plants                                                                                                                                    
                                                                                                                                                        
                                              *         *         *         *         *         *         *                                             
Cirsium hydrophilum var.  Suisun thistle..........  U.S.A. (CA).............  Asteraceae.............  E                                 NA           NA
 hydrophilum.                                                                                                                                           
                                                                                                                                                        
                                                                                                                                                        
                                              *         *         *         *         *         *         *                                             
Cordylanthus mollis ssp.  Soft bird's-beak........  U.S.A. (CA).............  Scrophulariaceae.......  E                                 NA           NA
 mollis.                                                                                                                                                
                                                                                                                                                        
                                                                                                                                                        
                                              *         *         *         *         *         *         *                                             
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: February 8, 1995.
Mollie H. Beattie,
Director, Fish and Wildlife Service.
[FR Doc. 95-14144 Filed 6-9-95; 8:45 am]
BILLING CODE 4310-55-P