Federal Register, Volume 62 Issue 58 (Wednesday, March 26, 1997)

[Federal Register Volume 62, Number 58 (Wednesday, March 26, 1997)]
[Rules and Regulations]
[Pages 14338-14352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7619]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC00

Endangered and Threatened Wildlife and Plants; Determination of
Endangered Status for Three Plants and Threatened Status for Five
Plants From Vernal Pools in the Central Valley of California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) determines endangered
status pursuant to the Endangered Species Act of 1973, as amended (Act)
for three plants, Orcuttia pilosa (hairy Orcutt grass), Orcuttia
viscida (Sacramento Orcutt grass), and Tuctoria greenei (Greene's
tuctoria); and threatened status for five plants, Castilleja campestris
ssp. succulenta (fleshy owl's-clover), Chamaesyce hooveri (Hoover's
spurge), Neostapfia colusana (Colusa grass), Orcuttia inaequalis (San
Joaquin Valley Orcutt grass), and Orcuttia tenuis (slender Orcutt
grass). Between publication of the proposed and final rules for these
species, the Service determined that Orcuttia inaequalis, which was
originally proposed as endangered, should be listed as threatened due
to lesser immediacy and magnitude of threats to its existence. These
species grow in the basins and margins of vernal pools of the Central
Valley of California. Habitat loss and degradation due to urbanization,
agricultural land conversion, livestock grazing, off-highway vehicle
use, a flood control project, a highway project, altered hydrology,
landfill projects, and competition from weedy nonnative plants imperil
the continued existence of these species. This rule implements Federal
protection and recovery provisions afforded by the Act for these eight
plants.

EFFECTIVE DATE: April 25, 1997.

ADDRESSES: The complete file for this rule is available for public
inspection, by appointment, during normal business hours at the
Sacramento Field Office, U.S. Fish and Wildlife Service, 3310 El Camino
Avenue, Suite #130, Sacramento, California 95821-6340.

FOR FURTHER INFORMATION CONTACT: Ken Fuller at the above address or by
telephone at 916/979-2120 or facsimile at 916/979-2128.

SUPPLEMENTARY INFORMATION:

Background

Vernal pools in the Central Valley of California were a common and
widespread feature in pre-European times (Holland and Jain 1977).
Although historic amounts of vernal pool habitat losses and annual loss
rates have been disputed, Holland estimated that urbanization and other
factors had eliminated 67 to 88 percent of the vernal pools in the
Central Valley by 1973 (Holland 1978, and Robert Holland, consultant,
in litt. 1992). Public comments and additional work regarding the
number of remaining acres of vernal pool habitat in the Central Valley
indicate the loss of vernal pool habitat is closer to 50 percent than
67 to 88 percent (59 FR 48139; R. Holland, pers. comm. 1996). The
plants discussed herein grow only in vernal pools in California and
have experienced minor to major population and habitat reductions
throughout their respective ranges. California vernal pools are
generally small, seasonally aquatic ecosystems that are inundated in
the winter and dry slowly in the spring and summer, making a harsh,
unique environment. Cyclical wetting and drying create an unusual
ecological situation supporting a unique biota. Many plants and animals
have evolved to possess such specific characteristics that these
organisms cannot live outside these temporary pools. Four other listed
species may occur with these plants: The vernal pool tadpole shrimp
(Lepidurus packardi); conservancy fairy shrimp (Branchinecta
conservatio); longhorn fairy shrimp (B. longiantenna); and vernal pool
fairy shrimp (B. lynchi). However, no close associations are known
between any of the listed shrimp species and the eight plants affected
by this rule.
The Central Valley of California consists of the Sacramento Valley
in the north half of the State and the San Joaquin Valley in the south
half. Within the Central Valley, vernal pools are found in four
physiographic settings, each possessing an impervious soil layer
relatively close to the surface. These four settings include high
terraces with iron-silicate or volcanic substrates, old alluvial
terraces, basin rims with claypan soils, and low valley terraces with
silica-carbonate claypans. Due to local topography and various
geological populations, vernal pools are usually clustered into pool
complexes. Pools within a complex typically are separated by a distance
of a few to several meters and may form dense, interconnected mosaics
of small pools or a more sparse scattering of large

[[Page 14339]]

pools. Vernal pool habitats and the eight plants discussed herein are
found over a very limited, discontinuous, fragmented area within the
Central Valley.

Discussion of the Eight Species

Neostapfia colusana (Colusa grass) is a robust, tufted annual that
grows 7 to 30 centimeters (cm) (3 to 12 inches (in)) in height. The
stems are decumbent toward the base with the upper portion erect and
terminating in spike-like inflorescences that are cylindrical, dense,
and resemble small ears of corn. Because of this unique inflorescence,
this distinctive plant is not easily confused with any others. Joseph
Burtt-Davy (1898) collected and first described N. colusana as a member
of the genus Stapfia. Burtt-Davy (1899) renamed this genus Neostapfia
and shortly thereafter, Frank Scribner (1899) submerged Neostapfia
within the genus Anthochloa. Robert Hoover (1940) placed this species
in the resurrected monotypic genus Neostapfia.
Neostapfia colusana has been extirpated from its type locality in
Colusa County. Seven populations of N. colusana in Colusa, Merced, and
Stanislaus counties have been lost. Three populations in Merced County
and one occurrence in Stanislaus County have not been seen in many
years and are considered to possibly be extirpated. The remaining 40
populations in the San Joaquin Valley are concentrated along a 200
kilometer (km) (98 mile (mi)) stretch of the eastern edge of the San
Joaquin Valley in Stanislaus and Merced counties. Additionally, two
separate populations occur in Solano County in the Sacramento Valley
and another two populations are found in Yolo County. All populations
exist on private lands, with the exception of one population found on
Castle Air Force Base (Merced County) in 1993 and one population found
on McClellan Air Force Base (Yolo County) in 1993. In addition to the
population on The Nature Conservancy's (TNC) Jepson Prairie Preserve in
Solano County, this plant is afforded some protection via a 970 hectare
(ha) (2,400 acre (ac)) conservation easement purchased by TNC at the
Flying M Ranch in Merced County (R. Alfandre, TNC, pers. comm. 1994).
``The overall trend for Colusa grass is one of decline'' (California
Department Fish and Game (CDFG) 1992a).
Orcuttia inaequalis (San Joaquin Valley Orcutt grass) is a tufted
annual that reaches 5 to 15 cm (2 to 6 in) in height. The grayish,
pilose (bearing soft, straight hairs) plants have several spreading to
erect stems, each terminating in a spike-like inflorescence. At
maturity, the spikelets of the plant are aggregated into a dense, hat-
shaped cluster, which separates them from other members of the genus
Orcuttia. Additionally, the lemmas (lower bracts enclosing the grass
floret) are deeply cleft into five prominent teeth which may be sharp-
pointed or have awns that are 0.5 millimeters (mm) (0.2 in) long. The
middle tooth is conspicuously longer than the four laterals. Orcuttia
inaequalis does not occur with any other species of Orcuttia. The
species most closely resembles O. californica and O. viscida. The
former does not have the long central lemma tooth and lacks the grayish
appearance, whereas, the spikelets of the latter are more congested
toward the apex of the inflorescence, but not as much as in O.
inaequalis. Orcuttia inaequalis has also smaller lemmas, noncurving
lemma teeth, and smaller seeds. Orcuttia inaequalis grows with
Neostapfia colusana at five sites in the San Joaquin Valley.
Klyver first collected and identified Orcuttia inaequalis as O.
californica near Lane's Bridge in Fresno County in 1927 (Klyver 1931).
Hoover (1936a) described O. inaequalis as a distinct species, but
reduced the species to a variety of O. californica in 1941 (Hoover
1941). Reeder (1982) determined O. inaequalis to be a distinct species
based on seed proteins, chromosome numbers, and morphological
characteristics. Sixteen populations of O. inaequalis have been lost in
Fresno, Madera, Merced, and Stanislaus counties. Additionally, three
populations of O. inaequalis have not been seen in some years of
surveying and are considered possibly extirpated. The remaining 23
populations, mostly in southeastern San Joaquin Valley in Fresno,
Merced, and Madera counties, are discontinuously scattered over a 79 km
(36 mi) range. Two populations are on Federal land, one managed by the
Bureau of Land Management (BLM) and one transplanted population by the
Bureau of Reclamation (BOR), while the remaining 21 populations are
found on private lands. Three populations of O. inaequalis are
protected by a conservation easement with TNC at the Flying M Ranch in
Merced County. ``The general trend for San Joaquin Valley Orcutt grass
is one of decline'' (CDFG 1991b).
Orcuttia pilosa (hairy Orcutt grass) is a densely tufted, usually
densely pilose annual reaching about 5 to 20 cm (2 to 8 in) in height.
The stems are erect or decumbent at the base. The inflorescence is
spike-like and rather elongate, with the spikelets remote on the axis
below and usually strongly congested above. The equal-length lemmas are
deeply cleft into fine teeth that are sharp-pointed or short-awned.
Orcuttia pilosa and O. tenuis grow together over a portion of their
respective ranges but are readily distinguished, as the stems of O.
pilosa are simple, tiller freely from the base and never branch from
the upper nodes. Additionally, the spikelets of O. pilosa are strongly
congested at the apex of the inflorescence and the stems and leaves are
larger. Orcuttia pilosa occurs infrequently with Tuctoria greenei, but
these two grasses can be readily distinguished.
Hoover collected Orcuttia pilosa in 1938 from a single locality in
eastern Stanislaus County, at the time considering these specimens to
be a more robust form of O. tenuis. He used one of these specimens as
the type for a new species, O. pilosa, which he described after
examining additional collections from Merced and Madera counties in San
Joaquin Valley (Hoover 1941). Orcuttia pilosa occurs along a 490 km
(223 mi) stretch on the eastern margin of the San Joaquin and
Sacramento valleys from Tehama County south to Stanislaus County and
through Merced and Madera counties. Previously, 34 populations of O.
pilosa were known. Eleven populations variously have been extirpated or
are presumed extirpated due to agricultural land conversion,
urbanization, and intensive cattle grazing in Madera, Merced,
Stanislaus, and Tehama counties. Of the 24 native, extant populations
and 1 introduced population, only 12 populations are considered to be
stable (Stone et al. 1988; J. Silveira, U.S. Fish and Wildlife Service
(Service), pers. comm. 1994). Of the 25 populations, 3 ungrazed
populations of O. pilosa occur on the Sacramento National Wildlife
Refuge. One population of O. pilosa occurs on BOR lands, and a
translocated one occurs on land owned by California State Department of
Transportation. The remaining 20 populations occur on private lands
with 1 population of O. pilosa in Butte County, 4 in Stanislaus County,
6 in Madera County, and 9 in Tehama County. Four of the nine
populations of O. pilosa in Tehama County are located on the TNC's Vina
Plains Preserve. However, only one of these sites at the preserve is
excluded from an agreement allowing cattle grazing by the previous
landowner (Stone et al. 1988). ``The overall trend for hairy Orcutt
grass is one of decline

[[Page 14340]]

due to loss of vernal pool habitat'' (CDFG 1991c).
Orcuttia viscida (Sacramento Orcutt grass) is a densely tufted,
pilose annual that reaches 2 to 10 cm (1 to 4 in) in height. The erect
stems terminate in spike-like inflorescences that are congested at the
apex. The plants are viscid (sticky) even when young and more so at
maturity. Orcuttia viscida develops five-toothed lemmas 6 to 7 mm (0.2
to 0.3 in) long with the middle tooth conspicuously longer than the
four laterals. The lemma teeth curve outward at maturity, giving the
inflorescence a distinct bristly appearance. Although O. viscida is
geographically isolated from all other members of the genus, it most
closely resembles O. inaequalis, but can be separated as described
above under the discussion of O. inaequalis.
Hoover collected Orcuttia viscida in 1941 from a vernal pool near
Folsom in Sacramento County and described it as a variety of O.
californica (Hoover 1941). Reeder elevated O. viscida to specific rank
based on differences in chromosome number, seed size, and other
morphological characteristics (Reeder 1980, 1982). Orcuttia viscida
possesses the narrowest range of the eight species proposed for listing
herein. Orcuttia viscida occurs within a 350 square km (135 square mi)
area in eastern Sacramento County. Only 40 km (18 mi) separates the
northernmost from the southernmost population. Two of the nine known
populations have been extirpated. Presently, three populations are
found on private lands and four populations are located on non-Federal
public lands (one area owned by a public municipality, one owned by the
County of Sacramento, one by the City of Fair Oaks, and one by the
CDFG). ``The trend for Sacramento Orcutt grass is one of rapid
decline'' (CDFG 1991d).
Tuctoria greenei (Greene's tuctoria) is a tufted, more or less
pilose, annual grass that grows 5 to 15 cm (2 to 6 in) tall. The plant
develops several to many erect stems, the outermost decumbent to
spreading at the base, with each terminating in a spike-like
inflorescence that may be partially enveloped by the uppermost leaf.
The lemmas are strongly curved and more or less truncate at the apex.
Vasey (1891) described Tuctoria greenei as Orcuttia greenei from
specimens collected by Edward Greene near Chico in Butte County in
1890. It remained in the genus Orcuttia until Reeder (1982) described
the genus Tuctoria and placed the former O. greenei into the new genus
Tuctoria. Nineteen populations of T. greenei have been extirpated or
are possibly extirpated in Fresno, Madera, Merced, San Joaquin,
Stanislaus, Tehama, and Tulare counties. The 20 remaining populations
of T. greenei occur in Butte, Glenn, Merced, Shasta, and Tehama
counties. The present range of this species extends 567 km (258 miles).
With the exception of one small population of 50 plants on the
Sacramento National Wildlife Refuge, all populations are on private
lands, including four on the TNC's Vina Plains Preserve. ``The general
trend for Greene's Orcutt grass is one of decline as a result of
habitat alteration and destruction'' (CDFG 1991e).
Orcuttia tenuis (slender Orcutt grass) is a weakly-tufted and
sparsely-pilose annual grass. It grows about 5 to 15 cm (2 to 6 in) in
height, producing one to several erect stems that often branch from the
upper nodes. The inflorescence of this plant is elongate, with the
spikelets usually remote along the axis and slightly, if at all,
congested toward the apex. The lemmas are deeply cleft into fine,
equal-length, prominent teeth that are sharp-pointed or short-awned.
Orcuttia tenuis and O. pilosa are found growing together over a portion
of their respective ranges but are readily distinguished as described
in the discussion of O. pilosa.
Alice Eastwood first collected Orcuttia tenuis in 1912 in Shasta
County. These specimens were considered to be O. californica prior to
the description of O. tenuis by Hitchcock as a new species in 1934,
based upon spikelet arrangement as well as lemma tooth morphology
(Hitchcock 1934). Orcuttia tenuis has been extirpated from its type
locality in Shasta County and four other sites in the vicinity of the
Redding Municipal Airport. Disjunct populations occur in vernal pools
on remnant alluvial fans and high stream terraces and recent basalt
flows across 440 km (220 mi) (Stone et al. 1988). Orcuttia tenuis is
restricted to northern California, with 2 populations occurring in Lake
County, 1 in Lassen County, 2 in Plumas County, 2 in Sacramento County,
19 (including one translocated) in Shasta County, 2 in Siskiyou County,
and 32 in Tehama County. Thirty-nine populations are on private lands.
In addition to the populations on the TNC's Vina Plains Preserve in
Tehama County, The Trust for Public Lands has obtained a conservation
easement on the Inks Creek Ranch in Tehama County to protect one
population of O. tenuis (M. Kelly, BLM, pers. comm. 1993). The City of
Redding owns lands containing two populations. The United States Forest
Service (USFS) and the BLM jointly have prepared a management guide for
one of the ten populations on lands administered by the BLM and three
of the nine populations on those lands administered by the Lassen
National Forest (B. Corbin, Lassen National Forest, pers. comm. 1994;
J. Molter, BLM, pers. comm. 1994; California Natural Diversity Database
(CNDDB) 1996). ``Although discoveries of additional populations in
recent years have extended the known range of this species, the overall
trend for slender Orcutt grass is one of decline as a result of habitat
alteration and loss'' (CDFG 1991f).
Castilleja campestris ssp. succulenta (fleshy owl's-clover) is a
glabrous, hemiparasitic (partly parasitic) annual herb belonging to the
snapdragon family (Scrophulariaceae). The stems are simple or branched,
generally 5 to 25 cm (2 to 10 in.) tall with brittle-succulent or
brittle-fleshy, entire, alternate leaves. The branches end in a dense,
short, green inflorescence with bracts equaling or exceeding the bright
yellow to white flowers that appear in May. Castilleja campestris ssp.
succulenta occurs with C. campestris ssp. campestris in Stanislaus
County, but the latter can be distinguished by its usually more brittle
leaves, shorter bracts, larger corollas, and longer stigmata.
Hoover (1936b) originally described the plant as Orthocarpus
campestris var. succulentus from specimens at its type locality in beds
of vernal pools near Ryer, Merced County. He subsequently elevated it
to a full species, O. succulentus, distinguishing it from O. campestris
on the basis of leaf and bract shape and flexibility, corolla color,
and anther cell length (Hoover 1968). Chuang and Heckard (1991)
significantly revised Orthocarpus, subsuming most of what had been
called Orthocarpus into the genus Castilleja. They also proposed the
new combination C. campestris ssp. succulenta. This small annual plant
was formerly more widespread in the Central Valley and is now
extirpated from its type locality near Ryer in Merced County.
Additionally, three populations in Fresno County have not been observed
for some years and are possibly extirpated (CNDDB 1996). The plant
discontinuously occurs in the San Joaquin Valley over a range of 145 km
(66 mi) extending through northern Fresno, western Madera, eastern
Merced, southeastern San Joaquin, and Stanislaus counties. One
population occurs on lands managed by the BOR, one on lands owned by
the California Department of Transportation, and two populations on
land managed by the BLM. Thirty-two populations occur on

[[Page 14341]]

private lands. Of these populations, seven occur at the Flying M Ranch,
where TNC has a conservation easement (CNDDB 1996). ``The overall trend
for succulent owl's clover is one of decline'' (CDFG 1991g).
Chamaesyce hooveri (Hoover's spurge), a member of the spurge family
(Euphorbiaceae), is a prostrate, glabrous annual herb. The leaves are
gray-green, asymmetric at the base, rounded to kidney-shaped and have
small, narrow white teeth around the margins. The small flowers occur
singly in the leaf axils. Chamaesyce ocellata can occur in the same
range with C. hooveri but is readily distinguished by its spreading
rather than prostrate habit, yellowish-green color, and entire leaf
margins. Chamaesyce serpyllifolia is similar to C. hooveri. Both
species have a gray-green color and may be prostrate, but C.
serpyllifolia has less rounded leaves, and the marginal teeth are
shorter and are usually limited to the leaf apex. Neither C. ocellata
nor C. serpyllifolia have been documented growing together with C.
hooveri in the same vernal pool.
Hoover first collected this plant in Tulare County in 1937. Wheeler
(1940) described it as Euphorbia hooveri. Koutnik (1985) placed this
species in the genus Chamaesyce based on the presence of a sheath
around the vascular bundle, its sympodial (lateral branching) growth
habit, and its photosynthetic pathway. Chamaesyce hooveri is found in
vernal pools on remnant alluvial fans and related depositional stream
terraces along a stretch of 528 km (240 mi) on the eastern margin of
the Central Valley. Four populations of C. hooveri are extirpated or
are possibly extirpated in Butte, Tehama, and Tulare counties. Of the
25 extant populations, 10 populations are known from Glenn, Merced,
Stanislaus, and Tulare counties. Three populations occur at the
northern end of Butte County and the remainder are located in Tehama
County. Five of the 12 Tehama County populations occur on TNC's Vina
Plains Preserve. All populations are on privately owned lands, except
for the four populations in Glenn County found on the Sacramento
National Wildlife Refuge (CNDDB 1996; J. Silveira, Sacramento National
Wildlife Refuge, pers. comm. 1994).

Previous Federal Action

Federal actions on these eight species began as a result of section
12 of the Endangered Species Act of 1973, which directed the Secretary
of the Smithsonian Institution to prepare a report on those species
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 included Castilleja
campestris ssp. succulenta (as Orthocarpus succulentis [sic]),
Neostapfia colusana, Orcuttia inaequalis (as O. californica var.
inaequalis), O. pilosa, O. tenuis, and O. viscida (as O. californica
var. viscida) as endangered, and Chamaesyce hooveri (as Euphorbia
hooveri) as threatened. 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 are now found in section 4(b)(3) of the Act) and
its intention to review the status of the species named therein. The
seven plants above were included in the July 1, 1975, notice. On June
16, 1976, the Service published a proposal (42 FR 24523) to determine
approximately 1,700 vascular plant species to be endangered species
pursuant to section 4 of the Act. This 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. Castilleja campestris
ssp. succulenta, Chamaesyce hooveri, Neostapfia colusana, O.
inaequalis, O. pilosa, O. tenuis, and O. viscida were included in the
June 16, 1976, Federal Register document.
General comments received in relation to the 1976 proposal were
summarized in an April 26, 1978, publication (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. On December 10, 1979, the
Service published a notice (44 FR 70796) of the withdrawal of 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). This notice included Castilleja
campestris ssp. succulentus, Chamaesyce hooveri, Neostapfia colusana,
Orcuttia inaequalis, O. pilosa, O. tenuis, O. viscida, and Tuctoria
greenei as category 1 candidates. Category 1 candidates were those
species for which the Service had on file substantial information on
biological vulnerability and threats to support a proposal to list. On
November 28, 1983, the Service published a supplement to the notice of
review (48 FR 53640), which changed Castilleja campestris ssp.
succulentus and N. colusana to Category 2 candidates. Category 2
candidates were those species for which data in the Service's
possession indicated that listing was possibly appropriate, but for
which substantial data on biological vulnerability and threats were not
known or on file to support proposed rules. The plant notice was again
revised on September 27, 1985 (50 FR 39526) and the status of the eight
plants remained unchanged from the 1983 supplement. In the revision of
the plant notice published on February 21, 1990 (55 FR 6184), N.
colusana was returned to category 1 status. In 1991 and 1992, the
Service received additional information regarding threats to Castilleja
campestris ssp. succulenta, and returned this species to category 1
status. As published in the Federal Register on February 28, 1996 (61
FR 7596), candidate category 2 status was discontinued and only
category 1 species are recognized as candidates for listing purposes.
Section 4(b)(3)(B) of the Act 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 Castilleja
campestris ssp. succulenta, Chamaesyce hooveri, Neostapfia colusana,
Orcuttia inaequalis, O. pilosa, O. tenuis, and O. viscida, because the
1975 Smithsonian report had been accepted as a petition. In October of
1983 through 1991, the Service found that the petitioned listing of the
above seven plant species was warranted but precluded by other higher
priority listing actions.
A proposal to list Orcuttia inaequalis, O. tenuis, O. viscida, and
Tuctoria greenei as endangered and Castilleja campestris ssp.
succulenta, Chamaesyce hooveri, Neostapfia colusana, and O. pilosa as
threatened was published on August 5, 1993 (58 FR 41700). This proposal
primarily was based on information supplied by reports to the
California Natural Diversity Data Base, the Status Survey of the Grass
Tribe Orcuttieae and Chamaesyce hooveri (Euphorbiaceae) in the Central
Valley of California (Stone et al. 1988), and observations by numerous
botanists. Since publication of the proposed rule for these species,
the Service has determined that Orcuttia inaequalis, which was proposed
as endangered, should be listed as threatened due to a lesser immediacy
and magnitude of threats to its existence.

[[Page 14342]]

The processing of this final rule conforms with the Service's
listing priority guidance published in the Federal Register on December
5, 1996 (61 FR 64475). The guidance clarifies the order in which the
Service will process rulemakings following two related events: (1) The
lifting, on April 26, 1996, of the moratorium on final listings imposed
on April 10, 1995 (Public Law 104-6), and (2) the restoration of
funding for listing through 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. This rule has been updated to
reflect any changes in distribution, status and threats since the
effective date of the listing moratorium. This additional information
was not of a nature to alter the Service's decision to list the
species.

Summary of Comments and Recommendations

Upon the publication of the August 5, 1993, proposed rule and
associated notifications (58 FR 41700), all interested parties were
requested to submit factual reports or information that might assist
the Service in determining whether listing is warranted for these
species. A 90-day comment period closed on November 18, 1993.
Appropriate Federal and State agencies, county and city governments,
scientists, and interested parties were contacted and requested to
comment. Individual newspaper notices of the proposed rule were
published in the Lake County Record-Bee, Modesto Bee, Record
Searchlight, Visalia Times-Delta, Siskiyou Daily News, Madera Tribune,
Chico-Enterprise Record, Daily Republic, Turlock Daily, Fresno Bee, and
Sacramento Bee on a variety of dates from August 21 to August 26, 1993.
In response to the publication of the proposed rule, William
Hazeltine, Environmental Consultant, Oroville, California, requested a
public hearing in a letter dated August 16, 1993. As a result, the
public comment period was extended to November 18, 1993. Notice of the
public hearing was published in the Federal Register (58 FR 52063) and
in the Sacramento Bee, a newspaper with a large regional circulation. A
public hearing was held at the Hyatt Regency Hotel in Sacramento on
November 3, 1993, from 6 pm to 8 pm. Eleven people presented oral and
written comments.
During the comment period, the Service received comments (letters
and oral testimony) from 27 people. Numerous people submitted more than
one comment to the Service. Seven comments supported the listing, 12
comments opposed the listing, and 8 comments are viewed as neutral.
Several commenters provided clarification and additional detailed
information that have been incorporated into this rule. Opposing
comments and other comments questioning the proposed rule have been
organized into specific issues. These issues and the Service's response
to each are summarized as follows:
Issue 1. One commenter stated that the population of Orcuttia
viscida in a vernal pool complex within a preserve in the proposed
Sunrise-Douglas subdivision is not threatened. Another commenter stated
that this same population is threatened by human disturbance.
Service Response: The Service reported in the proposed rule that
one population of Orcuttia viscida was threatened by an industrial park
development in eastern Sacramento County (CNDDB 1993). This industrial
park development project was dropped from further consideration, and
the Sunrise-Douglas subdivision has been proposed in the same area
(George Clark, California Native Plant Society, in litt. 1993). The
proposed subdivision includes a proposed preserve area, which includes
the vernal pools containing O. viscida and O. tenuis. Because the
preserve is only a proposal, it does not provide any protection to
these plant populations. Detrimental effects from herbicide runoff,
invasion of horticultural exotics, bicycle riding, and other human
intrusions have been observed in other preserves adjacent to
subdivisions, including one preserve for O. viscida in Sacramento
County. The Service considers the populations at Sunrise-Douglas to be
imperiled by similar threats as discussed in Factor E in the ``Summary
of Factors Affecting the Species.''
Issue 2. One commenter stated that one population of Orcuttia
viscida is not threatened by the Sacramento County landfill. Another
commenter stated that the Sacramento County landfill threatens this
same population.
Service Response: Recently, the Sacramento County landfill has been
expanded because the current use area was nearly full to capacity.
During the last landfill expansion project, the area containing the
vernal pool complex, mostly centered on the county-owned land having
one population of Orcuttia viscida, was avoided. Because the County
currently does not own land elsewhere for future landfill expansion and
has not announced plans to purchase additional land, it is reasonable
to expect that any future expansion will threaten this population.
Moreover, any expansion of the current landfill area will destroy
potential habitat for O. viscida (Clark, in litt. 1993).
Issue 3. One commenter stated that loss of vernal pool habitat from
many of the planned housing projects and aggregate mines in the Central
Valley will be mitigated by vernal pool creation. Because vernal pool
creation has been successful and is not experimental, no habitat losses
exist as claimed by the Service.
Service Response: Ferren and Gervitz (1990) reviewed 21 vernal pool
creation projects and stated that no conclusive data exist to
substantiate the hypothesis ``that vernal pools can be restored or
created to provide functional values within the range of variability of
natural pools.'' In a review of 53 mitigation-related transplantation,
relocation, and reintroduction attempts in California, Peggy Fiedler
(1991) concluded that the success rate was 8 percent. In a study on the
preservation and management of vernal pools, Jones and Stokes (1990)
concluded that the science of vernal pool creation is still in its
infancy and is primarily an experimental technique. Thus, the Service
maintains that urbanization contributes to on-going losses of natural
vernal pool habitat. The Service also maintains that vernal pool
habitat creation efforts are experimental in nature at this time, and
are generally not successful (59 FR 48136). Proposed subdivisions and
aggregate mines continue to threaten suitable vernal pool habitat and,
in some cases, populations of these eight vernal pool plants.
Issue 4. One commenter stated that the Service erroneously
calculated the loss of vernal pool acreage in California and suggested
that the number of acres of vernal pools lost was far less than claimed
by the Service.
Service Response: The historical context of vernal pool losses in
California in the proposed rule was not intended as a thorough,
exhaustive investigation and analysis of vernal pool losses.
Retrospective and contradictory information and opinions likely will
continue to generate debate on this point. The relevant issue is that
vernal pool habitat is depleted and fragmented to render these eight
vernal pool plants

[[Page 14343]]

vulnerable to extinction by present and foreseeable threats across all
or a significant portion of their respective ranges. The threats to
vernal pool habitat and the eight vernal pool plants are discussed in
the ``Summary of Factors Affecting the Species.''
Issue 5. Several commenters questioned the data that were used in
the proposed rule to determine that these eight vernal pool plants
warrant listing. One commenter stated that the data in the proposed
rule were in error, incomplete, and inconclusive. One commenter stated
that the data were poor because the status survey was done in 2 drought
years.
Service Response: The Service has received reports from the CNDDB,
knowledgeable botanists, and from a field status survey specifically
directed at gathering the best available scientific and commercial
information on the distribution and threats to these eight vernal pool
plants. Information from botanical collections of these vernal pool
plants that date from the 1890's was utilized in the preparation of the
proposed rule. The Service received information from a request for
information from Federal, State, and local agencies and consulted
professional botanists during the preparation of the proposed rule.
Destruction and loss of habitat and extirpation of populations of these
eight vernal pool plants from a variety of causes have been documented.
These species of plants have been surveyed in drought and non-drought
years. Although these vernal pool plants have variable populations and
new populations may be found in the future, the same threats are likely
to apply to any newly discovered populations. No data were provided to
substantiate comments that the findings of the proposed rule were based
on erroneous or inconclusive data.
Issue 6. Several commenters stated that livestock grazing had no or
little adverse or possibly a beneficial effect or was necessary for the
survival of these eight vernal pool plants or that these plants are
stable and thriving as a result of moderate or heavy grazing. One
commenter stated that drought, not livestock grazing, was responsible
for the decline of Tuctoria greenei. Another commenter stated that
urbanization and drought, not livestock grazing, was responsible for
the decline of T. greenei.
Service Response: Livestock grazing may have adverse, beneficial,
or little effect on vernal pool plants depending upon a wide variety of
circumstances. Grazing varies in frequency, intensity, timing,
duration, and kind of animal, resulting in widely varying impacts to
the plant communities involved. Temperature and effective spring
rainfall moisture contribute to difficulties in predicting vernal pool
plant growth and reproduction. These environmental factors influence
the ability to determine vernal pool plant availability for livestock
consumption and identify what levels of consumption are not likely to
adversely affect long-term plant sustainability. Grazing on private
lands occurs at many of the locations of these eight vernal pool
plants. The Service is aware of some populations having no livestock
grazing on them for over 40 years. Additionally, the Service is aware
of numerous instances where, under a specific set of circumstances,
livestock grazing has little to no adverse effect on some populations
of these eight vernal pool plants. For instance, private livestock
grazing in California commonly occurs in the winter and early spring.
Direct impacts from grazing and trampling are avoided in many instances
because the plants have yet to emerge from the vernal pools that are
still filled with water in the winter and early spring. These
populations have been characterized as stable and thriving and not
threatened by grazing, given a specific set of management circumstances
(Stone et al. 1988). However, it would be inaccurate to characterize
these vernal pool plant populations as stable and thriving as a result
of heavy or moderate grazing. Documented observations of positive,
neutral, and detrimental effects of livestock grazing on some
populations of these eight vernal pool plants exist (Stone et al.
1988).
One population of Tuctoria greenei may have been extirpated as a
result of cattle grazing from a site on private land near Farmington,
San Joaquin County. This population was last seen in 1936 (Stone et al.
1988). Three populations of T. greenei in Merced County, two
populations in Tehama County, and one population in Stanislaus County
are presumed to be extirpated as a result of cattle grazing (Stone et
al. 1988). The last time any of these populations was documented was in
1981. The proposed rule stated that livestock grazing was responsible
for the damaged and declining status of five populations of T. greenei.
Alternatively, another five populations of T. greenei in Tehama County
are not threatened by current livestock grazing practices and were not
included in the discussion of grazing threats in the proposed rule. In
these five specific cases in Tehama County, livestock grazing has
little or no adverse effect and is compatible with the biological needs
for the long-term persistence of these populations.
No commenter submitted any data to substantiate their statements
that drought and/or urbanization have caused of the decline of Tuctoria
greenei. Populations of T. greenei and the other seven vernal pool
plants have been surveyed in drought and non-drought years. In regard
to the likelihood of extirpation due to drought, these eight vernal
pool plants have adapted to survive extreme environmental variations
like drought. Current information suggests extirpation from drought is
unlikely, except for marginal populations. It is not readily apparent
why populations may not appear consistently on a given site and the
reasons may be attributed to drought or other unknown factors.
The best scientific and commercial information indicates some
populations of these eight vernal pool plants may have been extirpated
as a result of livestock grazing and that other populations are
adversely impacted by livestock grazing (Stone et al. 1988). The
Service maintains that current information suggests that livestock
grazing, under certain conditions, may be detrimental to some of these
eight vernal pool species. The determination of whether impacts from
livestock grazing are positive, neutral, or detrimental to these vernal
pool plants is made on a site-by-site basis for specific populations
and is based upon documented observations. Livestock grazing is only
one of numerous activities adversely affecting these eight vernal pool
plants. Additional information regarding livestock grazing may be found
in ``Factor C'' in the ``Summary of Factors Affecting the Species.''
Issue 7. Several commenters stated that the listing of these eight
vernal pool plant species will have an adverse impact on cattle
ranching and that the Service needs to consider the economic effects of
listing.
Service Response: Under section 4(b)(7)(A), a listing determination
must be based solely on the best scientific and commercial data
available. The legislative history of this provision clearly states the
intent of Congress to ``ensure'' that listing decisions are ``based
solely on biological criteria and to prevent non-biological
considerations from affecting such decisions'', H. R. Rep. No. 97-835,
97th Cong. 2d Sess. 19 (1982). As further stated in the legislative
history, ``Applying economic criteria * * * to any phase of the species
listing process is applying economics to the determinations made under
section 4 of the Act and is

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specifically rejected by the inclusion of the word ``solely'' in this
legislation,'' H. R. Rep. No. 97-835, 97th Cong. 2d Sess. 19 (1982).
Because the Service is precluded from considering economic impacts in a
final decision on a proposed listing, the Service has not examined such
impacts to the cattle industry or other business that may be caused by
the listing of these eight vernal pool species.
Issue 8. One commenter stated that livestock operators create
vernal pool habitat by building stock ponds.
Service Response: Although some populations of Orcuttia tenuis are
found in livestock ponds, such habitat is artificial and does not
support the biological functions and values of natural vernal pools.
Additionally, artificial livestock stock ponds are only a temporary
feature of surface hydrology. Lack of maintenance or changing land uses
can cause such a livestock pond to disappear. The Service considers
that livestock ponds represent temporary artificial refuge that is not
ecologically viable for the eight vernal pool plants to sustain
themselves.
Issue 9. One commenter stated the Service should assess impacts
from grasshopper predation on these eight vernal pool plants.
Service Response: Grasshopper predation has been recorded only
twice in the history of monitoring information on these eight vernal
pool plants. The Service does not consider grasshopper predation a
serious threat to these eight vernal pool plants.
Issue 10. Several commenters stated that these vernal pool plant
species are in preserves and do not require more protection. One
commenter stated that piecemeal protection may not prevent extinction
of these species. Another commenter stated that, in specific cases,
some of the existing preserves do not protect these plants.
Service Response: The likelihood of the long-term survival of any
of the eight vernal pool plants is difficult to predict with the best
scientific methods. Difficulties and uncertainties in predicting
extinction of species involve knowledge of many interrelated factors
including; the biological status of the species, the genetic structure
within and among populations of a species, the significance of
contributions of marginal populations to the genetics of the species,
the rate and direction of gene flow, historic or current population
bottlenecks, genetic drift, and inbreeding. Upon listing of the eight
vernal pool plants, the Service will undertake preparation of a
recovery plan for vernal pool ecosystems in California. The recovery
plan will include all federally listed and candidate vernal pool
species and have the goal to delist the species. Implementation of the
recovery plan will help provide more than piecemeal protection.
While a few populations of some of these vernal pool plants are
found on preserves, most populations are located on private lands and
are not secure. In the few cases where some of these species are in
preserves on privately owned lands, the preserves are not managed
specifically for these plants and threats arise from sources other than
habitat destruction. For example, one commenter stated that one
population of Neostapfia colusana located in a preserve, Jepson
Prairie, owned by TNC, is threatened by competition from a nonnative,
aggressive weed, common frog-fruit (Phyla nodiflora var. nodiflora).
Furthermore, a population of Orcuttia viscida, located on a preserve
owned by CDFG, is adversely affected by runoff from an adjacent housing
development that has changed the hydrology of the vernal pool complex.
For additional information regarding protection of individual
populations, please refer to the ``Background'' and the ``Summary of
Factors Affecting the Species.''
Issue 11. Several commenters stated that the Service must complete
a Takings Implication Assessment under Executive Order 12630.
Service Response: The U.S. Attorney General has issued guidelines
to the Department of the Interior (Department) on the implementation of
Executive Order 12630, ``Governmental Actions and Interference with
Constitutionally Protected Property Rights.'' Under these guidelines, a
special rule applies when an agency within the Department is required
by law to act without exercising its usual discretion. The provisions
in the guidelines relating to non-discretionary actions clearly are
applicable to the determination of endangered or threatened status for
the vernal pool plants in this rule.
In this context, an agency's action might be subject to legal
challenge if it did not consider or act upon economic information. In
these cases, the Attorney General's guidelines state that Takings
Implication Assessments (TIAs) shall be prepared after, rather than
before, the agency makes the decision upon which its discretion is
restricted. The purpose of the TIAs in these special circumstances is
to inform policymakers of areas where unavoidable taking exposures
exist. Such TIAs shall not be considered in the making of
administrative decisions that must, by law, be made without regard to
their economic impact. In enacting the Endangered Species Act, Congress
required that the Department list species based solely upon scientific
and commercial data indicating whether or not they are in danger of
extinction. Thus, by law and U.S. Attorney guidelines, the Service
cannot conduct such TIAs prior to listing. However, the Service will be
preparing a Takings Implication Assessment regarding this listing after
the listing becomes final.
Issue 12. Several commenters stated that the Service needs to
complete a Regulatory Impact Analysis, as directed by Presidential
Executive Order 12291, for the proposed rule for the eight vernal pool
plants.
Service Response: The Endangered Species Act requires that listing
decisions be made solely on the basis of biological information. The
legislative history of the 1982 amendments to the Act states:
``The Committee of Conference * * * adopted the House language
which requires the Secretary to base determinations regarding the
listing or delisting of species `solely' on the basis of the best
scientific and commercial data available to him. As noted in the House
Report, economic considerations have no relevance to determinations
regarding the status of species and the economic analysis requirements
of Executive Order 12291, and such statutes as the Regulatory
Flexibility Act and the Paperwork Reduction Act, will not apply to any
phase of the listing process.'' H.R. Conf. Rep. No. 835, 97th Cong., 2d
Sess. 20 (1982); accord, H.R. Rep. No. 567, 97th Con., 2d Sess. 12, 19-
20 (1982); S. Rep. No. 418, 97th Cong., 2d Sess. 4 (1982).
The Service has concluded that the analyses required by the
Regulatory Flexibility Act and Executive Order 12291 are not applicable
to listing determinations. Additionally, Executive Order 12291 was
revoked by issuance of Executive Order 12866 on September 30, 1993.
Issue 13. Several commenters stated that the Service must prepare
an Environmental Impact Statement (EIS), pursuant to the National
Environmental Policy Act (NEPA), on this rule.
Service Response: For the reasons set out in the NEPA section of
this document, the Service has determined that the rules issued
pursuant to section 4(a) of the Act do not require the preparation of
an EIS. The Federal courts have held in Pacific Legal Foundation v.
Andrus, 657 F2d. 829 (6th Circuit 1981) that an EIS is not required for
listing under the Act. The court decision noted that preparing an

[[Page 14345]]

EIS on listing actions does not further the goals of NEPA or the Act.
Issue 14. One commenter stated that the Service was uncooperative
and inaccessible regarding the notification of the proposed rule.
Another commenter stated that the Service needs to conduct a hearing
for the proposed rule to list these eight vernal pool plants in Butte
County because the Butte County Board of Supervisors passed a
resolution that directs all government agencies to inform them of any
action that may affect their economics, customs, or culture.
Service Response: The Service published a notice of the proposed
rule regarding these eight vernal pool plants in the Federal Register
on August 5, 1993. On August 16, 1993, the Service mailed out over 125
notifications of the proposed rule to Federal, State, and county
entities, and individuals. Additionally, the Service published public
notices regarding the proposed rule in the following newspapers--Chico-
Enterprise Record, Fresno Bee, Fairfield Daily Republic, Lake County
Record-Bee, Madera Tribune, Modesto Bee, Redding Record Searchlight,
Siskiyou Daily News, Sacramento Bee, Turlock Daily, and Visalia Times-
Delta.
In regard to notification of the public hearing, one request for a
public hearing was received. In accordance with the Endangered Species
Act, the Service determined that the request for a public hearing was
received during the comment period and scheduled a public hearing in a
large city, Sacramento, that is located in the center of the range of
the eight species proposed for listing. The notification of the public
hearing and extension of the comment period was published in the
Federal Register on October 6, 1993 (58 FR 52063) and shortly
thereafter published in the Sacramento Bee, a local newspaper with a
large circulation. The Service also mailed the notification of public
hearing and extension of comment period to interested parties. The
Service maintains that adequate public notification was given in regard
to the notification of the proposed rule, the public hearing, and
extension of comment period for the eight vernal pool plants proposed
for listing. The perception of the Service as uncooperative and
inaccessible is regrettable. We will continue to strive for complete
satisfaction in our communication with the public.
Issue 15. One commenter stated that the Service needs to designate
critical habitat. Another commenter stated that critical habitat should
not be designated. Another commenter stated that the Service needs to
designate critical habitat for people to find more populations of these
eight vernal pool plants.
Service Response: The Service believes that, at this time, the
threat posed by designating critical habitat outweighs any potential
benefit. As discussed in the ``Summary of Factors Affecting the
Species'' and ``Critical Habitat'' sections of this rule, all eight
vernal pool plants could be adversely affected by acts of vandalism.
The Service is aware of vernal pools that contained suitable habitat
for other federally proposed species that apparently were destroyed to
escape regulatory requirements. Designation of critical habitat at this
time would increase the threats to these eight vernal pool plants from
similar acts of vandalism. Within the constraints of agency budget and
priority workload, the Service is willing to work with anyone
interested in inventorying vernal pools for undiscovered populations of
these eight vernal pool plants. Critical habitat is typically
designated for known populations throughout the range of these species.
Therefore, such a designation would not aid in the discovery of new
populations.
Issue 16. A commenter from a mosquito abatement district was
concerned about restrictions of mosquito control activities in vernal
pools. Another commenter stated that listing would prevent landowners
from abating mosquitos on private lands and, thereby, could create a
public nuisance that could cause a liability.
Service Response: After the Service proposed three species of fairy
shrimp and one species of tadpole shrimp for listing in 1992 (57 FR
19856), commenters expressed similar concerns. Although degraded or
disturbed vernal pools may contain abundant mosquito populations, most
natural, non-degraded vernal pools do not provide a significant
breeding source for mosquitos. Since the Federal listing the three
species of fairy shrimp and one tadpole shrimp in vernal pools of
California in 1994 (59 FR 48136), the Service is not aware of any
problems or conflicts that have arisen regarding treatment of vernal
pools for mosquitos and the need to protect federally listed fairy
shrimp or tadpole shrimp. If the need for treatment of some vernal
pools occurs, least toxic, benign chemical alternatives and biological
or cultural controls exist for mosquito control. The Service recognizes
that potential conflicts may exist with the use of some of the many
chemicals used for mosquito control that may potentially be detrimental
to vernal pool plants and biota. The Service does and will continue to
work with recognized experts, and Federal, State, and local entities in
examining the use of additional alternatives, such as including
methoprene and the use of Bacillus thuringiensis var. israelensis (Bti)
and Lagenidium giganteum to achieve mosquito control. The Service is
confident that Federal listing will contribute to the survival of the
eight species of vernal pool plants without threatening public health
and safety.
Issue 17. One commenter recommended that the eight vernal pool
species be listed as threatened because it would allow for incidental
take in conservation plans.
Service Response: Section 9, ``Prohibited Acts'', of the Act and
the Code of Federal Regulations (50 CFR parts 10, 17) address
protection of federally listed endangered and threatened plants.
Incidental take does not apply to federally listed plants. However, it
is unlawful to remove, damage or destroy any such species from areas
under Federal jurisdiction, or to remove, damage or destroy any such
species in knowing violation of any State law or regulation on other
lands. For further information, please see the protection section in
``Factor E'' in the ``Summary of Factors Affecting the Species.''

Peer Review

The Service solicited the expert opinions of more than a dozen
appropriate and independent specialists regarding pertinent scientific
or commercial data and assumptions relating to the taxonomy and
biological and ecological information for these eight species. Two
responses from specialists were received. One specialist provided
information supporting the position of the Service that Orcuttia tenuis
and O. viscida were facing a number of threats in Sacramento County.
The other specialist provided information that clarified overlap in the
distribution of Chamaesyce hooveri, C. ocellata, and C. serpyllifolia,
and provided additional range, distribution or threat information for
Orcuttia inaequalis, O. pilosa and Tuctoria greenei. These comments
were incorporated into the final rule.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information
available, the Service has determined that Orcuttia pilosa Hoover
(hairy Orcutt grass), Orcuttia viscida (Hoover) J. Reeder (Sacramento
Orcutt grass), and Tuctoria greenei (Vasey) J. Reeder (Greene's
tuctoria) should be classified

[[Page 14346]]

as endangered; and Castilleja campestris (Benth.) Chuang and Heckard
ssp. succulenta (Hoover) Chuang and Heckard (fleshy owl's-clover),
Chamaesyce hooveri (Wheeler) Koutnik (Hoover's spurge), Neostapfia
colusana (Davy) Davy (Colusa grass), Orcuttia inaequalis Hoover (San
Joaquin Valley Orcutt grass), and Orcuttia tenuis Hitchcock (slender
Orcutt grass) should be classified as threatened. Procedures found at
section 4 of the Act and regulations (50 CFR part 424) promulgated to
implement the listing provisions of the Act were followed. 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 Orcuttia pilosa, Orcuttia viscida, Tuctoria greenei,
Castilleja campestris ssp. succulenta, Chamaesyce hooveri, Neostapfia
colusana, Orcuttia inaequalis, and Orcuttia tenuis are as follows:
A. The present or threatened destruction, modification, or
curtailment of habitat or range. The habitat of these species has been
reduced and fragmented throughout their respective ranges as vernal
pools continue to be eliminated by urbanization, flood control
projects, landfill projects, highway development, and agricultural land
conversion. Lands on the Central Valley floor are closer to existing
and expanding cities and farms than the valley rim, which is steeper,
less fertile and more removed from cities. As a result, valley floor
vernal pools, along with open rangeland, have been and continue to be
favored for urban and agricultural development. Within the last 20
years, conversion of land to agricultural use is known to have
eliminated one population of Chamaesyce hooveri in Tulare County; five
populations of Neostapfia colusana in Stanislaus County, one in Colusa
County, and one in Merced County; five populations of Orcuttia
inaequalis in Stanislaus County, four in Madera County, three in Merced
County, and one in Fresno County; five populations of O. pilosa in
Stanislaus County, two in Madera County, and one in Merced County; one
population of O. tenuis in Shasta County; one population of Tuctoria
greenei in Tulare County, three in Fresno County, one in Madera County,
four in San Joaquin County, two in Stanislaus County, and two in Tehama
County (Stone et al. 1988, Rarefind 1996). Agricultural land conversion
now threatens eight populations of O. pilosa in Madera and Stanislaus
counties; two populations of Chamaesyce hooveri in Stanislaus County
and three populations in Tulare County; one population of Castilleja
campestris ssp. succulenta in Madera County and one in Fresno County;
fourteen populations of N. colusana in southeastern Stanislaus County;
seven populations of T. greenei in Merced County; and two populations
of O. inaequalis in Madera County (Stone et al. 1988, Woodward-Clyde
1992, CNDDB 1996).
Additionally, numerous activities associated with agricultural
development have caused habitat degradation severe enough that many
populations of the species proposed for listing herein have not been
seen for 2 consecutive years or more and are presumed to be extirpated
(Stone et al. 1988, CNDDB 1996). For example, livestock pond
construction has inundated one population of Neostapfia colusana in
Merced County. Irrigated agriculture and associated runoff have likely
eliminated one population of Orcuttia inaequalis in Madera County, and
one population of Tuctoria greenei in Madera County and one in Merced
County. Overgrazing and hay production likely have destroyed one
population of O. inaequalis in Tehama County. Discing combined with
grazing presumably has destroyed one population of T. greenei in Merced
County. Discing also has destroyed one population of N. colusana in
Tulare County. Discing has likely eliminated one population of
Castilleja campestris ssp. succulenta in Fresno County (Stone et al.
1988, CNDDB 1996). In addition, 5 of the 12 remaining populations of O.
pilosa in Madera, Merced, and Stanislaus counties have been damaged by
discing or discing combined with grazing (Stone et al. 1988).
Human activities that alter the hydrology of vernal pools,
including changes in the amount of water or the length of inundation,
may directly and indirectly affect vernal pool plants. For example, a
vernal pool known to contain Orcuttia tenuis was channelized for
mosquito abatement. It is likely that the population was extirpated as
a result (Stone et al. 1988, CNDDB 1996). Pond construction for
recreational waterfowl hunting in Colusa County has presumably
eliminated one population of Neostapfia colusana. Additionally,
hydrological modifications have destroyed two Merced County and one
Fresno County population of O. inaequalis, and three populations of O.
tenuis in Shasta County (Stone et al. 1988). Increases in agricultural
field runoff are responsible for possibly extirpating one population of
N. colusana in Merced County and one in Stanislaus County (CNDDB 1996).
One population of Chamaesyce hooveri in Stanislaus County is threatened
by increases in agricultural irrigation runoff and by grazing (CNDDB
1996). The U.S. Army Corps of Engineers' (Corps) Merced County Stream
Channel Project threatens three populations of O. inaequalis, four
populations of N. colusana, and four populations of Castilleja
campestris ssp. succulenta in Merced County within the San Joaquin
Valley (R. Keck, Service, pers. comm. 1992; CNDDB 1996).
Because the human population of the Central Valley is growing
rapidly, numerous populations of Chamaesyce hooveri, Orcuttia
inaequalis, O. pilosa, O. tenuis, and O. viscida have been extirpated
and continue to be threatened by urban development projects. For
example, two major proposed urban developments are likely to adversely
affect significant amounts of vernal pool habitat in the Central
Valley, one for 80,000 people in southwest Placer County and one for
40,000 people in southeastern Yolo County. In El Dorado County, a 730
ha (1,800 ac) community near Georgetown is proposed as the first of 15
large-scale urban developments. Four new cities, projected to house
142,000 people, are proposed for Sutter County in the Sacramento Valley
(Weigand 1991). Urbanization has extirpated one population of O.
inaequalis in Fresno County, three populations of O. pilosa in Madera
County, and one population of Tuctoria greenei in Tehama County (Stone
et al. 1988). In the Sacramento Valley, eight populations of O. tenuis
in Shasta County are threatened by urbanization around Redding (Stone
et al. 1988). Numerous proposed housing developments, golf courses, and
landfills in the Sacramento and San Joaquin valleys threaten vernal
pool areas that may provide suitable habitat for O. tenuis and O.
viscida, including Borden Ranch, Evelyn Clipper Residential
Subdivision, Laguna Commons, Laguna Palms, Lakeview subdivision, Merced
Community Golf Course, Rio Mesa subdivision, River Bend Ranch, Sunrise-
Douglas, and Yosemite Estates (June DeWesse, Kelly Geer, and Mark
Littlefield, Service, pers. comm. 1994; CNDDB 1996). Although one
population of O. viscida in eastern Sacramento County is within a
preserve, this population remains threatened by a proposed subdivision
(G. Clark, CNPS, pers. comm. 1993). Housing tract developments imperil
two populations of Castilleja campestris ssp. succulenta in Fresno
County and one population in Madera County, and one population of

[[Page 14347]]

O. tenuis in Shasta County (CNDDB 1996).
Proposed gravel and aggregate mining projects that threaten to
destroy vernal pool habitat containing Orcuttia inaequalis, O. viscida
and Castilleja campestris ssp. succulenta include Granite Vineyard
Aggregate Mining Project and Granite 1/Aspen VI, both in Sacramento
County, and Fresno County Surface Mining (K. Geer, pers. comm. 1994).
The University of California prepared a draft environmental impact
statement for a new 810-ha (2,000-ac) campus for 25,000 students that
will be located at Lake Yosemite in Merced County. The site is in
valley grassland that harbors vernal pool habitat (John Zimmermann,
University of California, in litt. 1994; Geer, pers. comm. 1994) and
contain some of the eight plant species in this rule.
In addition to the numerous housing developments discussed above,
increasing urbanization of the Central Valley can affect vernal pool
habitat. Landfills, highway projects, and a proposed Federal prison
facility on a former U.S. Air Force base threaten vernal pool habitat.
For example, the 90 ha (200 ac) Merced County Landfill will destroy
vernal pools contained in the project area. This project area contains
Orcuttia inaequalis, O. pilosa, Castilleja campestris ssp. succulenta,
Neostapfia colusana, and Tuctoria greenei. Additionally, a proposed
landfill threatens one population of C. campestris ssp. succulenta in
Fresno County (CNDDB 1996). One of the seven Sacramento County
populations of O. viscida is threatened by a public landfill expansion
(G. Clark, in litt. 1993). Three populations of C. campestris ssp.
succulenta, two populations of O. inaequalis, and one population of O.
pilosa in Madera County are threatened by proposed expansion of State
Highway 41 (Brian Apper, California State Dept. of Transportation, in
litt. 1993; CNDDB 1996). One population of N. colusana in Merced County
is threatened by a proposed Federal prison on part of the former Castle
Air Force Base (Earth Technology Corporation 1994).
B. Overutilization for commercial, recreational, scientific, or
educational purposes. Overutilization is not known to be a factor for
any of these species. Collecting for scientific or horticultural
purposes or uncontrolled visits by groups or individuals could result
in trampling of vernal pool plants from increased publicity that may
result from a listing proposal. The Service is aware of several
instances of the destruction of vernal pool and associated upland
habitats known or likely to contain species proposed for Federal
listing in the Central Valley of California. Vandalism is considered a
threat to the eight vernal pool species, as discussed further in the
``Critical Habitat'' section of this rule.
C. Disease or predation. All eight plants occur mostly on private
land, some Federal rangelands managed by the USFS and the BLM that are
subject to livestock grazing, and rarely on National Wildlife Refuge
lands managed by the Service. Livestock grazing and associated
trampling may or may not adversely affect vernal pool plants depending
on, among other things, the kind of livestock, stocking level, season-
of-use, and grazing duration. The intensity and, more importantly, the
timing of this activity affect how livestock grazing may adversely
impact vernal pool plants (Stone et al. 1988). However, as long as the
land remains in dry pasture, moderate grazing regimes appear to have
little impact on populations of Orcuttia, Neostapfia, Tuctoria, and
Chamaesyce hooveri (Stone et al. 1988). The stems of C. hooveri exude a
latex when broken that appears to repel herbivores and that may be
poisonous. The impact of grazing combined with plant competition
probably has an adverse effect on Tuctoria greenei (see Factor E
below).
D. The inadequacy of existing regulatory mechanisms. The Endangered
Species Act can incidentally afford protection to these plants if they
co-exist with species already listed as threatened or endangered. Four
other listed species may occur with these plants: The vernal pool
tadpole shrimp (Lepidurus packardi); conservancy fairy shrimp
(Branchinecta conservatio); longhorn fairy shrimp (B. longiantenna);
and vernal pool fairy shrimp (B. lynchi). However, these species are
only rarely and sporadically found in the same vernal pools or vernal
pool complexes as the eight vernal pool plants.
Under section 404 of the Clean Water Act, the U. S. Army Corps of
Engineers (Corps) regulates the discharge of fill into waters of the
United States, which includes navigable and isolated waters,
headwaters, and adjacent wetlands. The section 404 regulations require
that applicants obtain an individual permit to place fill for projects
affecting greater than 4 ha (10 ac) of waters of the United States.
Nationwide Permit (NWP) No. 26 (33 CFR part 330) was established by the
Department of the Army to facilitate authorization of discharges of
fill into isolated waters (such as vernal pools) that cause the loss of
less than 4 ha (10 ac) of waters of the United States, and that cause
only minimal individual and cumulative environmental impacts. Projects
that qualify for authorization under NWP 26 and that affect less than
one acre of isolated waters or headwaters may proceed without notifying
the Corps. Evaluation of impacts of such projects through the section
404 permit process is thus precluded.
Corps District and Division Engineers may require that an
individual section 404 permit be obtained if projects otherwise
qualifying under NWP 26 would have greater than minimal individual or
cumulative environmental impacts. However, the Corps has been reluctant
to withhold authorization under NWP 26 unless the existence of a listed
threatened or endangered species would be jeopardized, regardless of
the significance of the affected wetland resources.
Additionally, and equally important, the upland watersheds of
vernal pools are not provided any protection in most cases. Disturbance
or loss of watersheds have extirpated several populations of these
species as discussed previously in Factor A. Thus, as a consequence of
the small scale of many vernal pools (most are less than one acre in
size) and the lack of protection of associated watersheds, these vernal
pool plants receive insufficient Federal protection under section 404
of the Clean Water Act.
The Orcuttia tenuis Species Management Guide written by the Lassen
National Forest and the Susanville District of the BLM (1990) gives
long-term management direction for 5 of 19 Forest Service and BLM plant
and animal populations in Plumas, Shasta, and Siskiyou counties in
northern California. Since 1990, three of the five populations of O.
tenuis included in the guide have been fenced to protect them from
impacts from grazing and off-highway vehicle use. Since 1990, six
additional populations of O. tenuis located on BLM administered land,
not currently included in the species management guide, have been
fenced to protect the populations from grazing. Grazing has been
discontinued in some instances.
The California Fish and Game Commission has listed Castilleja
campestris ssp. succulenta, Neostapfia colusana, Orcuttia inaequalis,
O. pilosa, O. tenuis, and O. viscida as endangered, and has classified
Tuctoria greenei as a rare species under the California Endangered
Species Act (California Fish and Game Code section 2050 et seq.) and
California Code of Regulations Title 14 Sec. 670.2 (1995). Chamaesyce
hooveri is not State-listed or classified.

[[Page 14348]]

Although the ``take'' of State-listed plants is prohibited under the
California Native Plant Protection Act (California Fish and Game Code
Section 1908 and California Fish and Game Code Section 2080), State law
appears to exempt the taking of such plants via habitat modification or
land use changes by the owner. After the CDFG notifies a landowner that
a State-listed plant grows on his or her property, the California
Native Plant Protection Act requires only that the landowner notify the
agency ``at least 10 days in advance of changing the land use to allow
salvage of such a plant'' (California Fish and Game Code Sec. 1913(c)).
The California Environmental Quality Act (CEQA) obligates
disclosure of environmental resources within proposed project areas and
may enhance opportunities for conservation efforts. However, CEQA does
not guarantee that such conservation efforts will be implemented.
Additionally, part of the environmental review under the CEQA for
projects that result in the loss of sites supporting these species
includes the development of mitigation plans. Such plans usually
involve the transplantation of the plant species to another existing
vernal pool, or the artificial creation of vernal pool habitat.
Transplantation and habitat creation efforts are experimental in nature
at this time, and are generally not successful (Fiedler 1991, Jones and
Stokes 1990). Following the development of the transplantation plan,
the original site is destroyed. Therefore, if the mitigation effort
fails, the resource has already been lost.
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 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 endangered species, and does not always require adequate
mitigation for the replacement or protection of the affected resources.
The protection of listed species through CEQA is therefore dependent
upon the discretion of the lead agency.
Conservation easements do not currently ensure adequate protection
for these vulnerable plant species. First, fewer than 8 percent of the
populations of these eight species are within existing conservation
easements. Secondly, although four populations of Orcuttia pilosa are
located on the TNC's Vina Plains Preserve, only one of these sites is
excluded from an agreement allowing continued cattle grazing by the
previous landowner, and the other populations have all been damaged by
grazing (Stone et al. 1988). Two of the five populations of Tuctoria
greenei on the Vina Plains Preserve are also damaged and declining due
to grazing (CNDDB 1996).
E. Other natural or manmade factors affecting its continued
existence. Nonnative annual and perennial plants have invaded many
vernal pools of the Central Valley. Nonnative annual grasses such as
Hordeum geniculatum, Phalaris paradoxa, Polypogon monospeliensis, and
Lolium multiflorum and soil disturbance associated with cattle grazing
appear to result in low vigor and low seed production of two
populations of Orcuttia inaequalis in Merced County (Stone et al.
1988). Additionally, the nonnative perennial herb, Sida hederacea,
appears to threaten another O. inaequalis population at a heavily
grazed site in Merced County (Stone et al. 1988). This same perennial,
along with the three weedy, nonnative grasses L. multiflorum, H.
geniculatum, and P. monospeliensis, appear to threaten three
populations of O. pilosa, two in Tehama County and one in Stanislaus
County (Stone et al. 1988). The native perennials Eleocharis
macrostachya and Eryngium sp. appear to limit distribution and
abundance of three populations of O. tenuis in Shasta County and ten
populations in Tehama County in the Sacramento Valley (Stone et al.
1987, 1988). Five populations of Chamaesyce hooveri in Tehama County
are threatened by one or more native or nonnative plant species (CNDDB
1996). The distribution and abundance of O. viscida at six of the seven
extant sites is significantly restricted by Eleocharis macrostachya,
which appears to threaten one population of O. viscida through
competitive exclusion (Stone et al. 1988). Another population of
Neostapfia colusana on TNC's Jepson Prairie Preserve is threatened by
competitive exclusion from the nonnative, aggressive Phyla nodiflora
var. nodiflora (CNDDB 1996; G. Clark, in litt. 1993). Initial results
from on-going research regarding controlling or eradicating Phyla
nodiflora var. nodiflora at the Jepson Prairie Preserve have indicated
that control or eradication is likely to be very difficult (CDFG
1991h).
Soil disturbance from cattle grazing combined with competition from
the introduced annual grasses Crypsis schoensides, Phalaris paradoxa,
Hordeum geniculatum, and Polypogon monspeliensis and the nonnative
perennial Lolium multiflorum appear to adversely affect two populations
of Tuctoria greenei in Tehama County and one in Butte County within the
Sacramento Valley, and all seven remaining extant sites in Merced
County in the San Joaquin Valley (Stone et al. 1987, 1988; CNDDB 1996).
Tuctoria greenei appears to be the most susceptible of the eight plants
in this rule to negative grazing impacts because its preference to grow
in the margin of a vernal pool (along the outer edges of the pool)
makes it more susceptible to livestock trampling damage and competition
from nonnative weeds such as L. multiflorum, Phalaris paradoxa, and
Polypogon monospeliensis (Stone et al. 1987). All populations of T.
greenei are subject to grazing. One population of T. greenei in Tehama
County, two in Merced County, and one in Butte County are damaged and
declining due to grazing (Stone et al. 1988). Because cattle grazing is
likely the primary cause for extirpation or presumed extirpation of T.
greenei at eight sites and all other populations are grazed by
livestock, the remaining populations of T. greenei are potentially
threatened by grazing (Stone et al. 1988). Lastly, the primary threat
to populations of Orcuttia pilosa, O. tenuis, and T. greenei on TNC's
Vina Plains Preserve is competition from nonnative, aggressive weeds,
including Convolvulus arvensis, Proboscidea louisianica, and Xanthium
strumarium (CDFG 1991i, CNDDB 1996).
A population of Neostapfia colusana on the McClellan U.S. Air Force
Base radio transmitter site in Yolo County is severely degraded due to
herbicide runoff from the antenna pads and to discing of firebreaks
(CNDDB 1996; G. Clark, in litt. 1993).
Off-highway vehicle damage has been reported to one population of
Orcuttia tenuis in Plumas County and threatens two additional
populations in Shasta and one population of O. pilosa in Madera County
(CNDDB 1996).
Because vernal pools are fairly localized habitats in close
proximity to urban and agricultural areas, uncontrolled visits by
groups or individuals could result in trampling of vernal pool plants
and potentially threaten all eight species.
The Service has carefully assessed the best scientific and
commercial information available regarding the present and future
threats faced by these eight species in determining to issue this rule.
As described under the ``Summary of Factors Affecting the Species''
section above, the available information indicates that many of the
populations of these plants are currently threatened. Thirty-three
populations of these eight vernal pool plants have been extirpated and
much of the habitat has

[[Page 14349]]

been lost to a variety of human activities. Large-scale human
population increases and attendant urban growth, as well as changes in
agricultural uses in adjacent areas, have destroyed and continue to
destroy significant quantities of the plants' vernal pool habitat and
continue to eliminate many plant populations. As a result, all eight
species have fragmented, discontinuous, highly restricted habitats
within the Central Valley, most of which are vulnerable to current and
future threats.
More than half of the remaining populations of the plants
determined for listing as endangered face numerous on-going threats.
Although these remaining populations of O. pilosa, O. viscida, and
Tuctoria greenei vary in size of occupied habitat, their geographic
distribution near expanding urban areas and restriction to the Central
Valley floor renders them more vulnerable to various threats, as
described in Factor ``A''. The Central Valley floor is favored over the
valley rim for urban development, agricultural activities, and
agricultural land conversion. The immediacy and magnitude of threats to
these plant populations is, therefore, greater than those occurring
above the valley floor. Nine populations of O. pilosa have been lost
and two others are possibly extirpated. Fourteen of the remaining 25
native extant populations of O. pilosa are variously threatened by
urbanization, agricultural land conversion, a highway expansion
project, discing, off-highway vehicle use, and competition from
nonnative weeds. Of the seven extant populations of O. viscida, five
populations are threatened by one or more of the following factors--a
landfill project, urban development, and competition from nonnative
weeds. Approximately half the known populations of Tuctoria greenei
have been extirpated or are possibly extirpated by some form of human
activity. With the exception of the population on the Sacramento
National Wildlife Refuge, the remaining 20 extant populations of T.
greenei are variously threatened by competition from nonnative weeds,
grazing, and agricultural land conversion. Based upon the above
evaluation, the proposed action is to list O. pilosa, O. viscida, and
T. greenei as endangered.
The remaining populations of the four species proposed as
threatened and Orcuttia inaequalis, which was proposed as endangered,
face fewer existing threats, that are of lesser magnitude. Moreover,
several populations of these five plants occur in pool habitats above
the Central Valley floor (up to 1,090 m (3,600 feet) in elevation) and/
or somewhat removed from expanding urban areas. Nonetheless, these five
species are likely to become increasingly imperiled in the foreseeable
future unless current trends of urban development and agricultural
conversion are reversed. Of the 36 extant populations of Castilleja
campestris ssp. succulenta, nearly half are threatened by one or more
of the following--urbanization, agricultural land conversion, discing,
trampling, a flood control project, and a proposed highway expansion
project. About one-third of the 25 remaining populations of Chamaesyce
hooveri are threatened by agricultural land conversion, a flood control
project, and/or competition with nonnative weeds. Ten populations of
Neostapfia colusana are lost or suspected of being lost due to
conversion of habitat. Of the 44 remaining populations of N. colusana,
22 populations are threatened or are damaged and declining due to
agricultural land conversion, discing, a flood control project, a
proposed Federal prison, herbicide contaminated runoff, and/or
competition with nonnative plants. Sixteen populations of O. inaequalis
have been lost and three other populations are possibly extirpated. Of
the remaining 23 native extant populations of O. inaequalis, 11 are
variously threatened by urbanization, agricultural land conversion, and
competition with nonnative weeds. Twenty-three of the 59 native extant
populations of O. tenuis are variously threatened either by one or more
of the following--urbanization, altered hydrology, off-highway
vehicles, and competition from nonnative weeds. Based on the evaluation
above, the preferred action is to list Castilleja campestris ssp.
succulenta, Chamaesyce hooveri, N. colusana, O. inaequalis, and O.
tenuis as threatened.
Alternatives to this action were considered but not preferred. Not
listing Orcuttia pilosa, O. viscida, and Tuctoria greenei as endangered
or Castilleja campestris ssp. succulenta, Chamaesyce hooveri,
Neostapfia colusana, O. inaequalis, and O. tenuis as threatened would
not provide adequate protection and would not be consistent with the
Act. The Service is not proposing to designate critical habitat for
these plants species at this time, as discussed below.

Critical Habitat

Critical habitat is defined in section 3(5)(A) 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
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. ``Conservation'' as defined in section 3(3) of the Act
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 the implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary designate critical habitat at the time
a species is determined to be endangered or threatened. The Service
finds that designation of critical habitat is not prudent for Orcuttia
pilosa, O. viscida, Tuctoria greenei, Castilleja campestris ssp.
succulenta, Chamaesyce hooveri, Neostapfia colusana, O. inaequalis, and
O. tenuis. Service regulations (50 CFR 424.12(a)(1)) state that the
designation of critical habitat is not prudent when one or both of the
following situations exist--(1) the species is imperiled by taking or
other human activity and the identification of critical habitat can be
expected to increase the degree of such threat to the species, or (2)
such designation of critical habitat would not be beneficial to the
species. In the case of the eight vernal pool plants in this final
rule, both criteria are met.
The listing of these plants as endangered or threatened elevates
awareness of their rarity, making them more sought after by curiosity
seekers, researchers, rare plant collectors, and vandals. Because
vernal pool habitats are small and easily identified, the publication
of precise maps and descriptions of critical habitat in the Federal
Register would increase the vulnerability of these plant species to
incidents of collection and general vandalism. Over a period of recent
years, the Service is aware of the discing or filling of vernal pools
and associated upland habitats known to or likely containing Federal
candidate, proposed or listed species including vernal pool fairy
shrimp (Branchinecta lynchi), vernal pool tadpole shrimp (Lepidurus
packardi), California tiger salamander (Ambystoma californiense),
Burke's goldfields (Lasthenia burkei), Sonoma sunshine (Blennosperma
bakeri), and Butte County meadowfoam (Limnanthes floccosa ssp.
californica) (Jim Browning, Jan Knight, Chris Nagano, Dan Strait,
Service, pers. comms. 1994).

[[Page 14350]]

Most of the populations of the eight vernal pool plants occur on
private lands where Federal involvement in land-use activities does not
generally occur. The most likely Federal involvement would occur with
the Corps through section 404 of the Clean Water Act. The Service finds
that Federal involvement in the few areas where these plants occur on
Federal land has already been identified without the designation of
critical habitat. The USFS and the BLM jointly have prepared a species
management guide for Orcuttia tenuis. A few populations have been
fenced to protect them from off-highway vehicle use and grazing. The
BLM also is aware of the populations of Castilleja campestris ssp.
succulenta and O. inaequalis and has fenced several populations of each
species to protect the populations from trespass grazing. Sacramento
National Wildlife Refuge personnel are also aware of the few
populations of Chamaesyce hooveri, O. pilosa, and Tuctoria greenei
occurring on Service land in Glenn County. Protection of a few
populations of several of these vernal pool plants and their habitats
on Federal land will be addressed through the recovery process and
through the section 7 consultation process. Therefore, the Service
finds that designation of critical habitat for these eight plants is
not prudent at this time because such designation would increase the
threat from vandalism or other human activities. The Service also finds
that designation of critical habitat is not beneficial because most of
the populations of the eight vernal pool plants are found on private
lands. Where they are found on Federal lands, the agencies are aware of
the species and are already addressing conservation efforts.

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 actions be
carried out for all listed species. The protection required of Federal
agencies and the prohibitions against certain activities involving
listed plants are discussed, in part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(1) requires Federal agencies to use their
authorities to further the purposes of the Act by carrying out programs
for listed species. Section 7(a)(2) of the Act requires Federal
agencies to insure that activities they authorize, fund, or carry out
are not likely to jeopardize the continued existence of the species or
destroy or adversely modify its critical habitat. If a Federal action
is likely to adversely affect a listed species, the responsible Federal
agency must enter into formal consultation with the Service.
The Corps of Engineers will become involved with these species
through its permitting authority under section 404 of the Clean Water
Act as well as water projects in the Central Valley such as the Merced
County Streams Project. By regulation, nationwide permits may not be
issued where a federally listed endangered or threatened species would
be affected by the proposed project without first completing formal
consultation pursuant to section 7 of the Act. The presence of a listed
species would highlight the national importance of these resources. In
addition, issuance of housing loans by the Department of Housing and
Urban Development in areas that presently support these eight species
would be subject to review by the Service under section 7 of the Act.
The BOR will become involved under its Friant water contract renewal
program to the extent that these species may occur within the 404,700
ha (1 million ac) water delivery area (M. Kohl, Service, pers. comm.
1992). Other future BOR contract renewals will provide additional
potential for section 7 involvement. The BLM and the USFS will become
involved as they are responsible for authorizing grazing and other land
uses in areas containing vernal pools. Highway construction and
maintenance projects that receive funding from the Department of
Transportation (Federal Highways Administration) will be subject to
review under section 7 of the Act. The Federal Bureau of Prisons could
become involved in discussions with the Service in the event that part
of the reuse of the former U.S. Castle Air Force Base is determined to
be a Federal prison facility. Castle Air Force Base is now closed, but
the property is still under Federal ownership. The U.S. Air Force may
become involved regardless of the decision of whether a Federal prison
is located on part of the former U.S. Air Force base.
Listing Orcuttia pilosa, O. viscida, and Tuctoria greenei as
endangered and Castilleja campestris ssp. succulenta, Chamaesyce
hooveri, Neostapfia colusana, O. inaequalis, and O. tenuis as
threatened provides for the development of a recovery plan(s), which
will bring together State and Federal efforts for conservation of these
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 these species. Additionally, pursuant to section 6 of the
Act, the Service would be able to grant funds to affected states for
management actions aiding in the protection and recovery of these
plants.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered and
threatened plants. All prohibitions of section 9(a)(2) of the Act,
implemented by 50 CFR 17.61 and 17.71, 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
in interstate or foreign commerce, or remove and reduce the species to
possession from areas under Federal jurisdiction. In addition, for
plants listed as endangered, the Act prohibits the malicious damage or
destruction on areas under Federal jurisdiction and the removal,
cutting, digging up, or damaging or destroying of such plants in
knowing violation of any State law or regulation, including State
criminal trespass law. Section 4(d) of the Act allows for the provision
of such protection to threatened species through regulation. Seeds from
cultivated specimens of threatened plant taxa are exempt from these
prohibitions provided that a statement ``Of Cultivated Origin'' appears
on the shipping containers. Certain exceptions apply to agents of the
Service and State conservation agencies.
The Act and 50 CFR 17.62, 17.63, and 17.72 also provide for the
issuance of permits to carry out otherwise prohibited activities
involving endangered or threatened plant species under certain
circumstances. Such permits are available for scientific purposes and
to enhance the

[[Page 14351]]

propagation or survival of the species. For threatened plants, permits
are also available for botanical or horticultural exhibition,
educational purposes, or special purposes consistent with purposes of
the Act. Because none of these eight plants are common in the wild or
in cultivation, trade permits likely would not be sought. Requests for
copies of the regulations on plants and inquiries regarding them may be
addressed to the U.S. Fish and Wildlife Service, Ecological Services,
Permits Branch, 911 NE 11th Avenue, Portland, Oregon 97232-4181 (503/
231-6241).
It is the policy of the Service (59 FR 34272; July 1, 1994) to
identify to the maximum extent practicable at the time of listing 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 or on-going activities. The
Service believes that the following actions would result in a violation
of section 9, although possible violations are not limited to these
actions alone: Collection, damage, or destruction of these species on
Federal lands, except in certain cases described below; and activities
on non-Federal lands conducted in knowing violation of California State
law, which requires a ten day notice be given before taking of plants
on private land. The Service believes that, based on the best available
information, the following actions will not result in a violation of
section 9 on private land provided that they do not violate State
trespass or other laws: Livestock grazing, ranching operations
(construction or maintenance of fences, water facilities, corrals; off-
road vehicle travel), firebreak construction and maintenance, non-
federally authorized mining, and recreational activities. Activities
that occur on Federal land, or on private land that receive Federal
authorization, permits, or funding, and for which either a Federal
endangered species permit is issued to allow collection for scientific
or recovery purposes, or a consultation is conducted in accordance with
section 7 of the Act, would also not result in a violation of section
9. General prohibitions and exceptions that apply to all endangered and
threatened plants in section 9(a)(2) of the Act, implemented by 50 CFR
17.61 and 17.71, apply as discussed earlier in this section. Questions
regarding whether specific activities will constitute a violation of
section 9 should be directed to the Field Supervisor of the Service's
Sacramento Field Office (see ADDRESSES section).

National Environmental Policy Act

The Service has determined that Environmental Assessments and
Environmental Impact Statements, as defined by 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, 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).

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. The Department
has determined that these final regulations meets the applicable
standards provided in Sections 3(a) and 3(b)(2) of Executive Order
12988.

References Cited

A complete list of all references cited herein is available upon
request from the Field Supervisor of the Sacramento Field Office (see
ADDRESSES section).
Author: The primary author of this proposed rule is Ken Fuller (see
ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
record-keeping 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.

Sec. 17.12 [Amended]

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:
* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
---------------------------------------------------- Historic range Family Status When Critical Special rules
Scientific name Common name listed habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants:

* * * * * * *
Castilleja campestris ssp. Fleshy owl's- U.S.A. (CA)..... Scrophulariaceae.. T 611 NA NA
succulenta. clover.

* * * * * * *
Chamaesyce hooveri............. Hoover's spurge... U.S.A. (CA)..... Euphorbiaceae..... T 611 NA NA

* * * * * * *
Neostapfia colusana............ Colusa grass...... U.S.A. (CA)..... Poaceae........... T 611 NA NA

* * * * * * *
Orcuttia inaequalis............ San Joaquin Valley U.S.A. (CA)..... Poaceae........... T 611 NA NA
Orcutt grass.

[[Page 14352]]

* * * * * * *
Orcuttia pilosa................ Hairy Orcutt grass U.S.A. (CA)..... Poaceae........... E 611 NA NA

* * * * * * *
Orcuttia tenuis................ Slender Orcutt U.S.A. (CA)..... Poaceae........... T 611 NA NA
grass.

* * * * * * *
Orcuttia viscida............... Sacramento Orcutt U.S.A. (CA)..... Poaceae........... E 611 NA NA
grass.

* * * * * * *
Tuctoria greenei............... Greene's tuctoria. U.S.A. (CA)..... Poaceae........... E 611 NA NA

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

Offset Folios 7 to 8 Insert Here
Dated: February 24, 1997.
John G. Rogers,
Acting Director, U.S. Fish and Wildlife Service
[FR Doc. 97-7619 Filed 3-25-97; 8:45 am]
BILLING CODE 4310-55-P