[Federal Register Volume 61, Number 247 (Monday, December 23, 1996)]
[Rules and Regulations]
[Pages 67493-67497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32541]
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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; Determination of
Endangered Status for Lesquerella Perforata (Spring Creek Bladderpod)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) determines
endangered status for Spring Creek bladderpod pursuant to the
Endangered Species Act of 1973, as amended (Act). 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.
DATES: This rule is effective January 22, 1997.
[[Page 67494]]
ADDRESSES: The complete administrative file of this rule is available
for inspection, by appointment, during normal business hours at the
Asheville Field Office, U.S. Fish and Wildlife Service, 160 Zillicoa
Street, Asheville, North Carolina 28801.
FOR FURTHER INFORMATION CONTACT: Mr. Robert R. Currie at the above
address (704/258-3939, 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 inch) 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 fruits mature and the plants die. The
fruits split open and the enclosed seeds fall to the ground and lay
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 flood plains. 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 flood plains 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; 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 flood plains of Spring and Bartons
Creeks or within the floodplain of a Bartons Creek tributary. The only
non-floodplain location is within a gladey 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 plants 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.
Previous Federal Action
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 Candidate species in the
revised notice of review for native plants published on December 15,
1980 (45 FR 82480). Candidate species are those for which the Service
has sufficient information on biological vulnerability and threat(s) to
support issuance of a proposed rule to list. This species was
maintained as a Candidate 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
[[Page 67495]]
potential sites for this species. Based upon this final report, the
Service developed a proposed rule to list the species as endangered.
The proposal was published in the Federal Register on August 23, 1994
(59 FR 43322).
The processing of this final rule conforms with the Service's final
listing priority guidance published in the Federal Register on May 16,
1996 (61 FR 24722). The guidance clarifies the order in which the
Service will process rulemakings following two related events--(1) the
lifting, April 26, 1996, of the moratorium on final listings imposed on
April 10, 1995 (Public Law 104-6); and (2) the restoration of
significant funding for listing through the passage of the omnibus
budget reconciliation law on April 26, 1996, following severe funding
constraints imposed by a number of continuing resolutions between
November 1995 and April 1996. The guidance calls for giving highest
priority to handling emergency situations (Tier 1) and second highest
priority (Tier 2) to resolving the listing status of the outstanding
proposed listings. This final rule falls under Tier 2. At this time
there are no pending Tier 1 actions. In the development of this final
rule, the Service has conducted an internal review of available
Service-generated information. Based on this review, the Service has
determined that there is no new information that would substantively
affect this listing decision and that additional public comment is not
warranted.
Summary of Comments and Recommendations
In the August 23, 1994, proposed rule and associated notifications,
all interested parties were requested to submit factual reports or
information that might contribute to the development of a final rule.
Appropriate State agencies, county governments, Federal agencies,
scientific organizations, and other interested parties were contacted
and requested to comment. A newspaper notice announcing the Federal
Register publication of the proposed rule was published in the Lebanon
Democrat, Lebanon, Tennessee, on September 12, 1994.
No written responses to the proposed rule were received during the
comment period. The Tennessee Department of Environment and
Conservation reiterated their support for the addition of Spring Creek
bladderpod to the Federal list (Milo Pyne, Botanist, personal
communication, 1994).
The Service also solicited the expert opinions of 21 appropriate
and independent experts in this species or in rare plant conservation
regarding the pertinent scientific or commercial data and assumptions
relating to taxonomy, population status, and biological and ecological
information on this species. No responses were received.
Summary of Factors Affecting the Species
After a thorough review and consideration of all information
available, the Service has determined that Spring Creek bladderpod
should be classified as an endangered species. Procedures found at
Section 4(a)(1) of the Act and regulations (50 CFR Part 424) issued to
implement these listing provisions were followed. 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 (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. Many of the 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.
Federal listing will provide additional protection from taking 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 make this rule
final. 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
[[Page 67496]]
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 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. 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 adversely 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 trade prohibitions and
exceptions that apply to all endangered plants. All prohibitions of
Section 9 (a)(2) of the Act, implemented by 50 CFR 17.61, 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 Act
prohibits 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.
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 of listing those activities that would
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 whithin a species' range. Prohibitions
relating to Federal lands and to trade are not of concern at present,
as none of the Lesquerella perforata populations are known to occur on
Federal lands, and there is no known current trade in this species.
Collection, damage or destruction on non-Federal lands is prohibited if
in knowing violation of State law, or in violation of State criminal
trespass law. In Tennessee, L. perforata is protected under the Rare
Plant Protection and Conservation Act of 1985, which controls the
removal of plants from State properties for scientific, educational, or
propagative purposes, and the disturbance of the species on private
lands without the landowner's consent. 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.
Questions regarding whether specific activities will constitute a
violation of section 9 should be directed to the Field Supervisor of
the Service's Asheville Field Office (see ADDRESSES section). Requests
for copies of the regulations on listed plants and inquiries regarding
prohibitions and permits should be addressed to the Regional Director,
Southeast Regional Office, U.S. Fish and Wildlife Service, 1875 Century
Boulevard, Atlanta, Georgia 30345 (404/679-7313).
National Environmental Policy Act
The 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 Act. A notice outlining the Service's
reasons for this determination was published in the Federal Register on
October 25, 1983 (48 FR 49244).
[[Page 67497]]
Required Determinations
The Service has examined this regulation under the Paperwork
Reduction Act of 1995 and found it to contain no information collection
requirements. This rulemaking was not subject to review by the Office
of Management and Budget under Executive Order 12866.
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 document is Mr. Robert R. Currie,
Asheville Field Office, U.S. Fish and Wildlife Service, 160 Zillicoa
Street, Asheville, North Carolina 28801 (704/258-3939, Ext. 224).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Regulation Promulgation
Accordingly, part 17, subchapter B of chapter I, title 50 of the
Code of Federal Regulations, is amended 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) * * *
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Species
------------------------------------------------------ Historic range Family Status When Critical Special
Scientific name Common name listed habitat rules
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Flowering Plants
* * * * * * *
Lesquerella perforata........... Spring Creek U.S.A. (TN)........ Brassicaceae....... E 599 NA NA
bladderpod.
* * * * * * *
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Dated: November 12, 1996.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 96-32541 Filed 12-20-96; 8:45 am]
BILLING CODE 4310-55-P