[Federal Register Volume 62, Number 224 (Thursday, November 20, 1997)]
[Rules and Regulations]
[Pages 61916-61925]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30552]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD14


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

EFFECTIVE DATE: December 22, 1997.

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

FOR FURTHER INFORMATION CONTACT: Kirsten Tarp (telephone 916/979-2120) 
and Matthew D. Vandenberg (telephone 916/979-2752), staff biologists at 
the Sacramento Fish and Wildlife Office (see ADDRESSES section); FAX 
916/979-2723.

SUPPLEMENTARY INFORMATION:

Background

    Cirsium hydrophilum var. hydrophilum (Suisun thistle) and 
Cordylanthus mollis ssp. mollis (soft bird's-beak) occur in salt and 
brackish tidal marshes fringing San Pablo and Suisun Bays in the San 
Francisco Bay area of northern California. Since 1850, this habitat has 
been drastically reduced. Approximately 15 percent, or 12,142 hectares 
(ha) (30,000 acres), of the historical tidal marshland habitat within 
the San Francisco Bay area remains (Dedrick 1989).
    With the exception of the San Francisco Bay area, the mountainous 
coast of California and the narrow continental shelf provide few areas 
that are suitable for tidal marsh development (MacDonald 1990). Coastal 
salt marshes are found along sheltered margins of shallow bays, 
estuaries, or lagoons, in low lying areas that are subject to periodic 
inundation by salt water. Brackish marshes occur at the interior 
margins of coastal bays, estuaries, or lagoons where fresh water 
sources (streams and rivers) enter salt marshes. Brackish marshes are 
similar to salt marshes but differ in the degree of water and soil 
salinity. Brackish marshes are less saline than salt marshes. Salinity 
levels vary with time, tides, and the amount of freshwater inflow. 
Vegetation communities in salt and brackish marshes often occur in 
distinct zones, depending on the frequency and length of tidal 
flooding. Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis 
ssp. mollis are restricted to a narrow tidal band, typically in higher 
elevational zones within larger tidal marshes that have fully developed 
tidal channel networks. These plants usually do not occur in smaller 
fringe tidal marshes that are generally less than 100 meters (m) (300 
feet (ft)) in width, or in non-tidal areas.

Discussion of the Two Species

    Asa Gray (1888) originally described Cirsium hydrophilum var. 
hydrophilum as Cnicus breweri var. vaseyi. Subsequent authors treated 
the taxon as Carduus hydrophilus (Greene 1892), Cirsium hydrophilum 
(Jepson 1901), and Cirsium vaseyi var. hydrophilum (Jepson 1925). John 
Thomas Howell (1959) concluded that Jepson's Cirsium hydrophilum and 
Cirsium vaseyi of the Mt. Tamalpais area in Marin County, California 
are varieties of a single species, Cirsium hydrophilum. According to 
the rules for botanical nomenclature, when a new variety is described 
in a species not previously divided into intraspecific taxa, an autonym 
(automatically created name) is designated. In this case, the autonym 
is Cirsium hydrophilum var. hydrophilum.
    Cirsium hydrophilum var. hydrophilum is a perennial herb in the 
aster family (Asteraceae). Slender, erect stems 1.0 to 1.5 m (3.0 to 
4.5 ft) tall are well branched above. The spiny leaves are deeply 
lobed. The lower leaves have ear-like basal lobes; the upper leaves are

[[Page 61917]]

reduced to narrow strips with strongly spine-toothed margins. Pale 
lavender-rose flower heads, 2.0 to 2.5 centimeters (cm) (1 inch (in.)) 
long, occur singly or in loose groups. The bracts of the flower heads 
have a distinct green, glutinous ridge on the back that distinguishes 
Cirsium hydrophilum var. hydrophilum from other Cirsium species in the 
area. Cirsium hydrophilum var. hydrophilum flowers between July and 
September.
    Cirsium hydrophilum var. hydrophilum is restricted to Suisun Marsh 
in Solano County. In 1975, the plant was reported as possibly extinct 
because it had not been collected for about 15 years. Extensive surveys 
found the thistle at two locations within Suisun Marsh (Brenda Grewell, 
California Department of Water Resources (CDWR), pers. comm. 1993), 
however, unoccupied suitable habitat for Cirsium hydrophilum var. 
hydrophilum exists outside these sites in the upper reaches of tidal 
marshes in Solano County. Collectively, the occurrences of Cirsium 
hydrophilum var. hydrophilum total a few thousand individuals (Brenda 
Grewell, pers. comm. 1993) occupying a total area of less than 1 acre. 
Cirsium hydrophilum var. hydrophilum grows in the upper reaches of 
tidal marshes associated with Typha angustifolia (narrow-leaf cattail), 
Scirpus americanus (Olney's bulrush), Juncus balticus (Baltic rush), 
and Distichlis spicata (saltgrass). One population is found on State 
land under the jurisdiction of the California Department of Fish and 
Game (CDFG) and another population is on Solano County Farmland and 
Open Space Foundation lands. No active management is occurring at 
either location (Neil Havlik, Solano County Farmland and Open Space 
Foundation, pers. comm. 1993; Ann Howald, CDFG, pers. comm. 1993). 
Habitat conversion and fragmentation, indirect effects from urban 
development, increased salinity, projects that alter the natural tidal 
regime, mosquito abatement activities, and competition with non-native 
plants, threaten this taxon. The highly restricted distribution of 
Cirsium hydrophilum var. hydrophilum increases its susceptibility to 
catastrophic events such as pest outbreaks, severe drought, oil spills, 
or other natural or human caused disasters.
    Charles Wright collected the type specimen of Cordylanthus mollis 
ssp. mollis in November 1855, on Mare Island in San Francisco Bay. Asa 
Gray (1868) published the original description, using the name 
Cordylanthus mollis. Later botanists treated the taxon as Adenostegia 
mollis (Greene 1891) and Chloropyron molle (Heller 1907). Tsan-Iang 
Chuang and Larry Heckard (1973) treated Cordylanthus mollis and 
Cordylanthus hispidus as subspecies of a single species (Cordylanthus 
mollis) with Cordylanthus mollis ssp. mollis recognized as the autonym.
    Cordylanthus mollis ssp. mollis is an annual herb of the snapdragon 
family (Scrophulariaceae) that grows 25 to 40 cm (10 to 16 in.) tall. 
It is sparingly branched from the middle and above. Cordylanthus mollis 
ssp. mollis is a hemiparasite (i.e., partially parasitic) that extracts 
water and nutrients by attaching enlarged root structures to the roots 
of other plants (Chuang and Heckard 1971). The foliage is grayish-green 
(often tinged a deep red) and hairy. The oblong to lance-shaped leaves 
are 1.0 to 2.5 cm (0.4 to 1.0 in.) long, the lower leaves entire and 
the upper with one to three pairs of leaf lobes. The inflorescence 
consists of spikes 5 to 15 cm (2 to 6 in.) long. A floral bract with 
two to three pairs of lobes occurs immediately below each inconspicuous 
white or yellowish-white flower. The flowers have only two functional 
stamens. The narrow ovoid seed capsule is 6 to 10 millimeters (mm) (0.2 
to 0.4 in.) long and bears 20 to 30 dark brown seeds. Flowering occurs 
between July and September. Cordylanthus mollis ssp. mollis is 
distinguished from another Cordylanthus found nearby (C. maritimus ssp. 
palustris) by its two functional stamens (C. maritimus ssp. palustris 
has four) and by its bracts with two to three pairs of lateral lobes 
(C. maritimus ssp. palustris has a pair of short teeth on the floral 
bracts). Cordylanthus mollis ssp. mollis is closely related to 
Cordylanthus mollis ssp. hispidus and can be differentiated most 
consistently from Cordylanthus mollis ssp. hispidus on spike length and 
seed size.
    Cordylanthus mollis ssp. mollis is found predominantly in the upper 
reaches of salt grass-pickleweed marshes at or near the limits of tidal 
action (Stromberg 1986). It is associated with Salicornia virginica 
(Virginia glasswort), Distichlis spicata, Jaumea carnosa (fleshy 
jaumea), Frankenia salina (alkali heath), and Triglochin maritima 
(arrow-grass) (Stromberg 1986). There have been 21 reported locations 
of Cordylanthus mollis ssp. mollis. Two sites, Denverton and Berkeley, 
were erroneous locations. Five sites (Mare Island, Martinez, Burdell 
Station, Bentley Wharf, and Antioch Bridge) have been extirpated by 
habitat loss or modification. Five other sites surveyed in 1993 no 
longer had the plants, although some potential habitat still existed. 
Nine sites are presumed to still exist (California Natural Diversity 
Data Base (CNDDB) 1996; Jake Ruygt, California Native Plant Society 
(CNPS), in litt. 1996). The type locality at Mare Island for 
Cordylanthus mollis ssp. mollis was destroyed by development and is now 
a dredge disposal site (CNDDB 1994). A second occurrence, last seen in 
1981 near Martinez in Contra Costa and Solano Counties, was dredged, 
filled, diked, and is now a marina (Stromberg 1986, CNDDB 1994).
    The remaining nine occurrences are widely scattered throughout 
coastal salt or brackish tidal marshes fringing San Pablo and Suisun 
Bays, in Contra Costa, Napa, and Solano Counties (CNDDB 1994; Brenda 
Grewell, in litt. 1993; Jake Ruygt, in. litt. 1996). Three sites, Pt. 
Pinole, Rush Ranch, and Joice Island Bridge, have very limited habitat 
and cover less than 0.4 ha (1 acre) each. The population at Fagan 
Slough covers approximately 1.2 ha (3 acres). The two largest 
populations are located at Hill Slough and at Concord Naval Weapons 
Station, each covering approximately 4 ha (10 acres). The entire 
distribution of Cordylanthus mollis ssp. mollis currently is restricted 
to about 12 ha (31 acres) of occupied habitat (Jake Ruygt, 1994 and in 
litt. 1996). The total number of individuals reported among populations 
varies from 1 at the smallest site to 150,000 plants at the largest 
site. Of the remaining nine sites, one (McAvoy) has only 23 plants. 
Most sites have between 1,000 and 6,000 individuals (Jake Ruygt 1994; 
CNDDB 1996). Individual populations fluctuate in size from year to 
year, as is typical of annual plants. Cordylanthus mollis ssp. mollis 
occurs primarily on private or non-Federal land; the second largest 
occurrence is found on Department of Defense (U.S. Navy) land. Habitat 
conversion and fragmentation, water pollution, increases in salinity of 
tidal marshes due to upstream withdrawals of fresh water, projects that 
alter the natural tidal regime, indirect effects of urbanization, 
mosquito abatement activities (including off-road vehicle use), 
erosion, competition with non-native vegetation, insect predation, and 
other random events threaten the remaining occurrences of Cordylanthus 
mollis ssp. mollis.
    The CDWR has conducted surveys for Cordylanthus mollis ssp. mollis 
and Cirsium hydrophilum var. hydrophilum, and these surveys have not 
been limited to known historic populations. The CDWR has surveyed 
potential habitat throughout Suisun Marsh, searched portions of the 
potential habitat along the Contra Costa shoreline, has assisted with 
searches downstream of Suisun

[[Page 61918]]

Bay in the Carquinez Strait and Napa marshes, and has surveyed diked 
wetlands managed for waterfowl. Despite these surveys, the CDWR has 
found no new populations since their original data submittal in 1993 
(Randall Brown in. litt. 1996).

Previous Federal Action

    Federal government actions on the two plants began as a result of 
section 12 of the Act, which directed the Secretary of the Smithsonian 
Institution to prepare a report on those plants considered to be 
endangered, threatened, or extinct in the United States. This report, 
designated as House Document No. 94-51, was presented to Congress on 
January 9, 1975, and listed Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis as possibly extinct. The Service 
published a notice on July 1, 1975 (40 FR 27823), of its acceptance of 
the report of the Smithsonian Institution as a petition within the 
context of section 4(c)(2) (petition provisions now are found in 
section 4(b)(3) of the Act) and its intention thereby to review the 
status of the plant taxa named therein. The above two taxa were 
included in the July 1, 1975, notice. On June 16, 1976, the Service 
published a proposal (41 FR 24523) to determine approximately 1,700 
vascular plant species to be endangered species pursuant to section 4 
of the Act. The list of 1,700 plant taxa was assembled on the basis of 
comments and data received by the Smithsonian Institution and the 
Service in response to House Document No. 94-51 and the July 1, 1975, 
Federal Register publication. Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis were included in the June 16, 1976, 
Federal Register proposal.
    General comments received on the 1976 proposal were summarized in 
an April 26, 1978, notice (43 FR 17909). The Act's Amendments of 1978 
required that all proposals over 2 years old be withdrawn. A 1-year 
grace period was given to those proposals already more than 2 years 
old. In a December 10, 1979, notice (44 FR 70796), the Service withdrew 
the June 16, 1976, proposal, along with four other proposals that had 
expired.
    The Service published an updated Notice of Review for plants on 
December 15, 1980 (45 FR 82480). The two plant taxa were listed as 
category 1 candidates for Federal listing in this document. Category 1 
taxa were those that the Service has on file substantial information on 
biological vulnerability and threats to support preparation of listing 
proposals. On November 28, 1983, the Service published a supplement to 
the Notice of Review (48 FR 53640); there were no changes to these taxa 
in this supplement.
    The plant notice was revised again on September 27, 1985 (50 FR 
39526), February 21, 1990 (55 FR 6184), and September 30, 1993 (58 FR 
51144). In these three notices Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis were included as category 1 candidate 
species. On February 28, 1996, the Service published a Notice of Review 
in the Federal Register (61 FR 7596) that discontinued the use of 
candidate categories and considered the former category 1 candidates as 
simply ``candidates'' for listing purposes.
    Section 4(b)(3)(B) of the Act requires the Secretary to make 
certain findings on petitions within 12 months of their receipt. 
Section 2(b)(1) of the 1982 amendments further requires that all 
petitions pending on October 13, 1982, be treated as having been newly 
submitted on that date. This was the case for Cirsium hydrophilum var. 
hydrophilum and Cordylanthus mollis ssp. mollis, because the 1975 
Smithsonian report had been accepted as a petition. On October 13, 
1982, the Service found that the petitioned listing of these species 
was warranted, but precluded by other pending listing actions, in 
accordance with section 4(b)(3)(B)(iii) of the Act; notification of 
this finding was published on January 20, 1984 (49 FR 2485). The 
finding was reviewed annually from October 1983 through 1994, pursuant 
to section 4(b)(3)(C)(i) of the Act.
    A proposal to list Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis as endangered was published on June 12, 
1995. The proposal was based on information supplied by reports to the 
California Diversity Database, and observations and reports by numerous 
botanists.
    The processing of this final listing rule conforms with the 
Service's final listing priority guidance published on December 5, 1996 
(61 FR 64475). The guidance clarifies the order in which the Service 
will process rulemakings following two related events, the lifting on 
April 26, 1996, of the moratorium on final listings imposed on April 
10, 1995 (Public Law 104-6) and the restoration of significant 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 outstanding proposed listings. Tier 3 includes 
the processing of new proposed listings for species facing high 
magnitude threats, and processing administrative findings on petitions. 
Tier 4 includes the processing of critical habitat designations. This 
final rule falls under Tier 2.
    This rule has been updated to reflect any changes in distribution, 
status and threats since the effective date of the listing moratorium, 
and to incorporate information obtained through the public comment 
period. This additional information was not of a nature to alter the 
Service's decision to list the species.

Summary of Comments and Recommendations

    In the proposed rule published June 12, 1995 in the Federal 
Register (60 FR 31000), all interested parties were requested to submit 
factual reports or information that might contribute to the development 
of a final rule. The public comment period closed on August 21, 1995. 
Appropriate State agencies, county and city governments, Federal 
agencies, scientific organizations, and other interested parties were 
contacted and requested to comment. A public hearing request was 
received within 45 days of publication of the proposal from Paul 
Campos, General Counsel for the Building Industry Association. Because 
a Congressional moratorium on the Service's activities associated with 
final listing actions was in effect from April 1995 to April 1996, 
scheduling of the hearing was delayed. The Service subsequently 
scheduled and held the public hearing on Wednesday, October 2, 1996, 
from 6:00 p.m. to 8:00 p.m. at the Holiday Inn, 1350 Holiday Lane, 
Fairfield, California. To accommodate the hearing, the public comment 
period was reopened on September 6, 1996, and closed October 15, 1996. 
Notice of the public hearing and reopening of the public comment period 
was published in the Federal Register September 6, 1996 (61 FR 47105) 
and in newspapers including The Napa Register on September 18, 1996, 
The San Francisco Chronicle on September 18, 1996, The Contra Costa 
Times on September 18, 1996, and The Fairfield Daily Republic on 
September 19, 1996.
    During the comment period, the Service received comments (letters 
and oral testimony) from a total of 14 people. Some people submitted 
more than one comment to the Service. Six commenters supported the 
listing, one commenter opposed the listing, and seven commenters are 
viewed as

[[Page 61919]]

neutral. One commenter submitted comments late. Among the six 
commenters supporting the listing are the California Native Plant 
Society, the University of California at Davis, and the Napa-Solano 
Chapter of the Audubon Society. Three commenters provided detailed 
information on locations, population sizes, and threats to the species. 
These data have been incorporated into this rule. Two commenters stated 
that they were researching the threats to the species and hoped that 
the Service would be available to work with them in the creation of 
protection and/or mitigation plans as necessary. One commenter 
representing the Solano County Mosquito Abatement District stated they 
are willing to work with the Service to avoid actions that may be 
damaging to endangered plants and habitat. 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 Service should make the 
precise locations of the two tidal plants available to landowners and 
the counties in which the species occur. This information would help 
the landowners ensure that activities they conduct would not harm the 
two species, if the species exist on their property.
    Service Response: In the proposed rule, the Service stated that 
these plants are restricted to salt or brackish tidal marsh within 
Solano, Contra Costa, and Napa counties. Individuals owning land in 
these counties who believe that their actions or activities may result 
in harm to either of these two species should feel free to provide the 
Service with detailed maps of their lands prior to conducting these 
activities so that the Service can provide technical assistance on the 
exact locations of these species. The Service will make every effort to 
notify landowners and seek cooperation with surveys or other 
conservation efforts. The complete file for this rule is available for 
public inspection, and does contain general information about where the 
species occurs. The Service is always willing to assist the public in 
matters aimed at protecting sensitive species.
    Issue 2: One commenter was concerned about the listing of 
Cordylanthus mollis ssp. mollis, although they did not formally object 
to the listing. Specifically, the commenter questioned what the legal 
protection means to the subspecies when it is similar in appearance to 
Cordylanthus mollis ssp. hispidus and the two cannot readily be 
distinguished in the field and there is the possible occurrence of 
hybridization.
    Service Response: The taxonomy of the subspecies has been clarified 
by Chuang and Heckard (1971), with Cordylanthus mollis ssp. mollis and 
Cordylanthus mollis ssp. hispidus separated primarily by habitat, spike 
length, and seed size; and secondarily by branching patterns and 
hirsuteness (i.e., coarse stiff hairs). As with many subspecies, though 
material may be difficult to identify in the field, Cordylanthus mollis 
ssp. mollis and Cordylanthus mollis ssp. hispidus are recognized as 
distinct subspecies (Chuang and Heckard 1971, Chuang and Heckard 1993). 
As the term ``species'' is defined in the Act, the Service can apply 
the protections of the Act to any species or subspecies of fish, 
wildlife, or plants, that meets the definition of endangered or 
threatened. The Act does not attempt to define ``species'' in 
biological terms, and thus allows the term to be applied according to 
the best current biological information and understanding of evolution, 
speciation, and genetics.
    Issue 3: One commenter questioned whether mosquito abatement 
activities had led to a decline in Cordylanthus mollis ssp. mollis.
    Service Response: As documented in Factor ``E'' below, mosquito 
abatement activities, resulting from increased urbanization, have been 
observed to adversely impact individual Cordylanthus mollis ssp. mollis 
plants.
    Issue 4: One commenter stated that there were considerably more 
populations of Cordylanthus mollis ssp. mollis in Contra Costa County 
than reported in the proposed rule, which according to the commenter 
included only the East Navy marsh and Swanton's or Hasting's Slough 
Marsh.
    Service Response: Populations reported in the proposed rule as 
occurring in Contra Costa County included Pt. Pinole, McAvoy Boat 
Harbor, Hasting's Slough, and Concord Naval Weapons Station. As 
mentioned in the ``Discussion of the Two Species'' section, populations 
of annual plants tend to fluctuate from year to year. The Service views 
the additional ``populations'' of Cordylanthus mollis ssp. mollis 
located at East Navy South, Swanton's SW, Swanton's NW, and Pt. Pinole 
to be extensions of existing populations that were included in the 
proposed rule, and not an expansion of the overall range of this 
species.
    Issue 5: One commenter questioned the adequacy of many aspects of 
the data used in the proposed rule. This commenter stated that listing 
at this time is premature and also was concerned that the best 
available knowledge, including information not yet in print, be used in 
the rule.
    Service Response: In accordance with the ``Interagency Cooperative 
Policy on Information Standards under the Endangered Species Act'', 
published in the Federal Register on July 1, 1994 (59 FR 34271), the 
Service impartially reviews all scientific and other information to 
ensure that any information used to promulgate a regulation to add a 
species to the list of threatened and endangered species is reliable, 
credible, and represents the best scientific and commercial data 
available. The Service used information received from the California 
Natural Diversity Data Base, knowledgeable botanists, and from studies 
specifically directed at gathering the information on distribution and 
threats. Information from botanical collections of these plants that, 
in some cases, dates from the 1880's, was utilized in the preparation 
of the proposed rule. The Service received 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 two plants from a variety of 
causes have been documented. The Service sought comments on the 
proposed rule from Federal, State, and county entities, species 
experts, and other individuals. All substantive new data received 
during the public comment period have been incorporated into the final 
rule. Specific justification for listing the two plant species is 
summarized in Factors ``A'' through ``E.''
    Issue 6: One commenter stated that we do not know that full tidal 
action is needed for Cordylanthus mollis ssp. mollis.
    Service Response: All known populations of Cordylanthus mollis ssp. 
mollis occur in higher elevational zones within larger tidal marshes 
that have fully developed tidal channel networks. In sites where this 
taxa has been extirpated, full tidal action has often been lost. 
Extensive surveys for Cordylanthus mollis ssp. mollis have been 
conducted in tidal and diked marsh lands, and it has not been located 
in any diked marshes.
    Issue 7: One commenter stated that the plants occur in tidal 
marshes and not in diked areas and, therefore, their lands do not 
constitute critical habitat for the species.
    Service Response: The designation of critical habitat for Cirsium 
hydrophilum var. hydrophilum and Cordylanthus

[[Page 61920]]

mollis ssp. mollis is not prudent. Refer to the Critical Habitat 
section of this final rule for a detailed discussion of the Service's 
decision.

Peer Review

    In accordance with Service peer review policy (July 1, 1994; 59 FR 
34270), the Service sent copies of the proposed rule to three 
independent botanists and tidal marsh specialists who are professors. 
The Service solicited their review of the proposed rule and pertinent 
scientific and commercial information substantive to the listing 
determination. The reviewers did not respond to the Service.

Summary of Factors Affecting the Species

    Section 4 of the Act and regulations (50 CFR part 424) promulgated 
to implement the listing provisions of the Act set forth the procedures 
for adding species to the Federal lists of endangered and threatened 
species. A species may be determined to be endangered or threatened due 
to one or more of the five factors described in section 4(a)(1). These 
factors and their application to Cirsium hydrophilum (Greene) Jepson 
var. hydrophilum (Suisun thistle) and Cordylanthus mollis Gray ssp. 
mollis (soft bird's-beak) are as follows:

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

    Habitat for Cirsium hydrophilum var. hydrophilum and Cordylanthus 
mollis ssp. mollis has been severely reduced by past human activities. 
Hydraulic mining, diking and filling involved in agricultural land 
conversion and urbanization, waste disposal, port and industrial 
development, railroad construction, dredging, salt production, and 
sedimentation have drastically reduced the amount of tidal marsh in 
California (Atwater 1979, MacDonald 1990, Association of Bay Area 
Governments (ABAG) 1991). Changes in freshwater inflow, pollution, 
habitat conversion, habitat fragmentation, and alteration of the 
natural tidal regime continue to threaten the habitat of both species.
    In San Pablo Bay, historical tidal wetlands have been diked and 
converted to agricultural lands that were farmed for oat hay. In 
addition, approximately 4,050 ha (10,000 acres) also were converted to 
salt ponds. In Suisun Bay, most of the 28,780 ha (71,100 acres) of 
tidal marshes that existed in 1850 were converted originally to 
agricultural land, and then to diked seasonal wetlands used for 
waterfowl management. Only 3,780 ha (9,340 acres) within Suisun Marsh 
remain as tidal marsh (Dedrick 1989). Most of the remaining tidal 
marshes are backed by steep levees, allowing for little or no 
transitional wetland habitat--the habitat required by Cirsium 
hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis.
    The change of freshwater inflow to the marsh has modified the 
habitat for these two taxa. Agricultural and municipal uses have 
diverted over 50 percent of the historical annual inflow of freshwater 
from the Suisun Marsh and Delta (ABAG 1991). During the past 40 years, 
significant portions of the tidally-influenced brackish marsh within 
Suisun Bay have become more saline due to decreased freshwater flows 
(Pavlik 1992). Increased salt levels within the Suisun Marsh may 
threaten Cordylanthus mollis ssp. mollis and Cirsium hydrophilum var. 
hydrophilum. Salt stress causes decreased plant growth and lower 
reproduction. When salinity levels remain high during extended drought 
conditions, population viability of these species may be greatly 
impaired to the extent they lose their ability to maintain themselves 
as components of a healthy wetlands ecosystem (Pavlik 1992). When 
salinity increases in the root zone, salt stress reduces plant 
abundance and causes shifts in plant distribution. This has occurred 
even in common salt-tolerant plants (Pavlik 1992). Cordylanthus mollis 
ssp. mollis and Cirsium hydrophilum var. hydrophilum may be especially 
vulnerable to increased salt levels due to the limited number of 
individuals and their restricted distribution. Additionally, decreased 
levels of salt within the Suisun Marsh may threaten Cordylanthus mollis 
ssp. mollis by affecting its host plants. Cordylanthus mollis ssp. 
mollis is a hemi-root parasite that completes its life cycle by 
parasitizing the roots of perennial halophytes. Salicornia virginica 
and Distichlis spicata are halophyte plant associates and likely hosts 
of Cordylanthus mollis ssp. mollis, although specifics of the host 
relationship have yet to be determined. During the wet and above normal 
water years of 1995 and 1996, these two plant associates have decreased 
in abundance in the areas where the Cordylanthus mollis ssp. mollis is 
found. Therefore, it is important to maintain the long term natural 
variability of hydrologic conditions in order to ensure the survival of 
Cordylanthus mollis ssp. mollis and the species upon which it may 
depend (R. Brown, in. litt. 1996).
    The two plant species also face threats from habitat fragmentation 
associated with commercial and residential development, road 
construction, and ongoing effects of historical fragmentation by 
activities associated with clearing for agriculture, railroad 
construction, dredging, and conversion to salt ponds. These activities 
have split habitat into smaller, more isolated units. Habitat 
fragmentation may alter the physical environment, changing the 
microclimate, quantity of water, and nutrients required by remnant 
vegetation (Saunders et al. 1991). In addition, a higher proportion of 
the area of these fragmented natural areas is subject to the influences 
from external factors (e.g., additional development, off-road vehicular 
use, numerous other human influences, and competition with non-native 
vegetation) that disrupt natural ecosystem processes. Further effects 
of habitat fragmentation on the two plant species are discussed in 
Factor ``E.''
    Projects that convert habitat from tidal marsh to diked seasonal 
wetlands potentially threaten both Cirsium hydrophilum var. hydrophilum 
and Cordylanthus mollis ssp. mollis. Within Suisun Marsh, the 
conversion of tidal marsh to diked seasonal wetlands, a practice common 
in the development of waterfowl managements areas, is a potential 
threat for both species (Randall Brown, in litt. 1993). The CDFG's 
planned conversion of 40 ha (100 acres) of Distichlis spicata (an 
associated species for both Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis) in Hill Slough as enhancement of 
habitat for wildlife (CDWR, in litt. 1996), will further diminish the 
amount of suitable habitat for Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis.
    Habitat conversion for planned future urbanization threatens both 
species. In the Association of Bay Area Governments' analysis of the 
San Francisco Bay Estuary, over 4,856 ha (12,000 acres) of wetlands in 
the Bay will be subject to moderate to high development uses over the 
next 12 years (ABAG 1991). Highway projects within the San Francisco 
Bay Estuary during the next 20 years alone are expected to fill 146 ha 
(362 acres) of wetlands (ABAG 1991). Some of the highway projects will 
threaten Cordylanthus mollis ssp. mollis by eliminating habitat into 
which existing populations of this plant could expand. Widening of 
California Highway 37 will impact wetlands that occur along the Napa 
River (ABAG 1991) and may adversely affect habitat for Cordylanthus 
mollis

[[Page 61921]]

ssp. mollis. Proposed widening of Highway 12 near the Suisun Marsh 
would threaten the habitats of Cordylanthus mollis ssp. mollis and 
Cirsium hydrophilum var. hydrophilum (Brenda Grewell, pers. comm. 
1993), either due to habitat fragmentation as discussed above or by 
runoff.
    Projects that alter the natural tidal regime may also threaten both 
taxa. Although the California Department of Water Resources is no 
longer pursuing the Western Suisun Marsh Salinity Control Project, 
projects that may alter the salinity regime and flows, are being 
evaluated under the CalFed Bay-Delta Program. The goals of the program 
will be to contribute toward recovery of sensitive species rather than 
to recover the species. The alternatives of the CalFed program have not 
been identified yet, but could involve habitat modification associated 
with restoration activities and the construction of various storage and 
conveyance structures. These actions could subject tidal marsh to 
altered flows and changes in salinity that could be detrimental to 
Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis ssp. 
mollis. The restoration plans have not specifically addressed Cirsium 
hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis.

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

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

C. Disease or Predation

    The health of one of the largest occurrences of Cordylanthus mollis 
ssp. mollis is declining due to insect predation (Brenda Grewell, pers. 
comm. 1993). Intense insect seed predation has been observed in the 
population at Joice Island and Hill Slough within Suisun Marsh in 
Solano County (Randall Brown, in litt. 1993). The presence of a thistle 
weevil (Rhinocyllus conicus) in a portion of the Cirsium hydrophilum 
var. hydrophilum population was documented in June 1996 by CDWR. The 
CDWR has collected thistle weevil in Cirsium hydrophilum var. 
hydrophilum flower heads, and observed many flower heads with no seeds. 
The larval stage of this weevil feeds on the seed. Phyciods mylitta 
caterpillars were collected on a population of Cirsium hydrophilum var. 
hydrophilum in September 1996. These caterpillars have caused 
significant damage to the rosettes of plants that will flower next year 
(R. Brown, in. litt. 1996).
    Disease is not known to be a factor for either Cirsium hydrophilum 
var. hydrophilum or Cordylanthus mollis ssp. mollis.

D. The Inadequacy of Existing Regulatory Mechanisms

    Section 404 of the Clean Water Act represents the primary Federal 
law that affords some protection for these two plants since they occur 
in wetlands. However, the Clean Water Act, by itself does not provide 
adequate protection for either Cirsium hydrophilum var. hydrophilum or 
Cordylanthus mollis ssp. mollis. The Army Corps of Engineers (Corps) is 
the Federal agency responsible for administering the section 404 
program. Under section 404, nationwide permits may be issued for 
certain activities that are considered to have minimal impacts, 
including oil spill cleanup, minor dredging, maintenance dredging of 
existing basins, some road crossings, and minor bank stabilization 
(December 13, 1996; 61 FR 65874-65922). However, the Corps seldom 
withholds authorization of an activity under nationwide permits unless 
the existence of a listed threatened or endangered species would be 
jeopardized, regardless of the significance of the affected wetland 
resources. Activities that do not qualify for authorization under a 
nationwide permit, including projects that would result in more than 
minimal adverse environmental effects, either individually or 
cumulatively, may be authorized by an individual or regional general 
permit, which are typically subject to more extensive review. 
Regardless of the type of permit deemed necessary under section 404, 
rare species such as Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis may receive no special consideration 
with regard to conservation or protection unless they are listed under 
the Act.
    The Service, as part of the section 404 review process, provides 
comments to the Corps on nationwide permits and individual permits. The 
Service's comments are only advisory, although procedures exist for 
elevating permit review within the agencies when disagreements between 
the Service and Corps arise concerning the issuance of a permit. In 
practice, the permitting process for wetland fills and other activity 
under section 404 are insufficient to protect rare species such as 
Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis ssp. 
mollis.
    CDFG has formally designated Cordylanthus mollis ssp. mollis as 
rare under the California Endangered Species Act (chapter 1.5 sec. 2050 
et seq. of the California Fish and Game Code and Title 14, California 
Code of Regulations 670.2). This designation by the State of California 
requires individuals to obtain a permit or an agreement with the CDFG 
to possess or ``take'' a listed species. Although the ``take'' of 
State-listed plants is prohibited (California Native Plant Protection 
Act, chapter 10 sec. 1908 and California Endangered Species Act, 
chapter 1.5 sec. 2080), State law exempts the taking of such plants via 
habitat modification or land use changes by the landowner. After 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'' (chapter 10 
sec. 1913 of the California Fish and Game Code).
    The California Environmental Quality Act (CEQA) requires a full 
disclosure of the potential environmental impacts of proposed projects. 
CEQA also 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. The public agency with primary authority 
or jurisdiction over the project is designated as the lead agency, and 
is responsible for conducting a review of the project and consulting 
with the other agencies concerned with the resources affected by the 
project. Section 15065 of the CEQA Guidelines requires a finding of 
significance if a project has the potential to ``reduce the number or 
restrict the range of a rare or endangered plant or animal.'' Once 
significant effects are identified, the lead agency has the option to 
require mitigation for effects through changes in the project or to 
decide that overriding considerations make mitigation infeasible. In 
the latter case, projects may be approved that cause significant 
environmental damage, such as resulting in the loss of sites supporting 
State-listed species. Mitigation plans usually involve the 
transplantation of the plant species to an existing habitat or an 
artificially created habitat. Following the development of the 
transplantation plan, the original site is destroyed. Therefore, if the 
mitigation effort fails, the resource has already been lost.

[[Page 61922]]

Protection of listed species through CEQA is, therefore, dependent upon 
the discretion of the lead agency involved. In addition, revisions to 
the CEQA guidelines have been proposed that, if made final, may weaken 
protections for threatened, endangered, and other sensitive species 
(U.S. Department of the Interior, in. litt. 1997). Final CEQA 
guidelines are forthcoming.
    In 1977, the State of California enacted the Suisun Marsh 
Preservation Act (Preservation Act) to protect Suisun Marsh. This 
legislation established primary and secondary management areas. The 
secondary management areas were established to provide a buffer against 
development. In 1982, the Preservation Act was amended to exclude, in 
the primary management area, land proposed for the Lawlor Ranch 
development. Exclusion of this land has reduced the buffer between 
urbanization and Suisun Marsh. The indirect effects of urbanization are 
discussed further in Factors ``A'' and ``E'.

E. Other Natural or Manmade Factors Affecting Their Continued Existence

    Both populations of Cirsium hydrophilum var. hydrophilum are 
adversely affected by non-native plants. Lepidium latifolium (perennial 
peppergrass), a rated noxious weed (California Department of Food and 
Agriculture 1993), has ``moved in especially in the last 5 years'' 
(Brenda Grewell, pers. comm. 1993). Cirsium hydrophilum var. 
hydrophilum is out-competed by L. latifolium. Hybridization with 
Cirsium vulgare (bull thistle), a non-native, also is a potential 
threat. Cirsium vulgare hybridizes readily with other Cirsium. 
Hybridization with Cirsium vulgare was suggested as a possible 
explanation for the previously presumed extinction of Cirsium 
hydrophilum var. hydrophilum (Smith and Berg 1988). Cordylanthus mollis 
ssp. hispidus is a species generally associated with more alkaline 
habitats than tidal marshes where Cordylanthus mollis ssp. mollis is 
found. However, hybridization and mixing of traits may be occurring 
between these two taxa or subspecies as possibly indicated in some 
voucher species kept in the University of California (Berkeley) and 
Jepson herbarium reference collections.
    Chronic pollution from petroleum products is an ongoing threat to 
the habitat of both plants within San Pablo Bay and southern Suisun 
Bay. Oil spills can result in severe and long lasting destruction of 
salt marsh vegetation. Studies on mangroves, seagrasses, salt marsh 
grasses, and algae have shown that petroleum causes death, reduced 
growth, and impaired reproduction in large plants (Albers 1992). The 
effects of a petroleum spill to plants depends on several factors 
including the time of year, the type of petroleum product (crude or 
refined), and the degree of coverage (Hershner and Moore 1977; Rob 
Ricker, CDFG, pers. comm. 1993). A plant entirely covered by oil will 
die. Oil that seeps into sediments can affect the roots or rhizomes of 
plants as well. Oil spills may also affect plants by decreasing the 
amount of plant biomass (either above or below ground), or by 
decreasing the reproductive capacity of the plant (Rob Ricker, pers. 
comm. 1993).
    Four hundred to 800 oil spills occur annually within California 
(Rob Ricker, pers. comm. 1993). Within northern California, 309 
reported spills affecting marine or estuarine habitats within the 
jurisdiction of the Service's Sacramento Fish and Wildlife Office 
occurred between March 1992 and March 1993 (Office of Environmental 
Services (OES) 1992 and 1993). Most of these spills occurred in the San 
Francisco Bay Estuary.
    In 1988, an oil spill in Martinez, California, flowed as far as 
Suisun Bay. Although these plants are found within the northern part of 
the Suisun Marsh and may not be threatened directly by an oil spill in 
San Francisco Bay, the potential for oil spills exists from vessels 
operating within the marsh, as well as from an accidental spill from 
railroads that bisect the marsh. Oil spills also are an ever present 
threat to Cordylanthus mollis ssp. mollis occurring near Point Pinole 
(Pat O'Brien, General Manager, East Bay Regional Parks District, in 
litt. 1994).
    A hazardous waste clean-up effort resulted in the removal of a 
portion of the Middle Point Cordylanthus mollis ssp. mollis population 
in 1994. This population is found on the Concord Naval Weapons Station 
Property (Ruygt 1994).
    Chronic pollution from point and non-point sources, including heavy 
metals from industrial discharges, also may threaten the habitat of 
both plants. It is unknown, however, what effects heavy metals in 
industrial discharges have on these two taxa. In 1978, 52 municipal 
treatment facilities and 42 industrial facilities continuously 
discharged wastewater into San Francisco Bay (Western Ecological 
Services Company (WESCO) 1986). By 1982, over 200 permits for 
industrial discharges had been granted (WESCO 1986).
    The amounts of heavy metals in the San Francisco Bay Estuary are 
projected to increase during the next 10 years. The San Francisco Bay 
Conservation and Development Commission, Center for Environmental 
Design Research, and the Greenbelt Alliance (1992) collectively modeled 
plausible land use changes and their impact to the health of the San 
Francisco Bay Estuary. Several methods were used to determine the 
effects of land use change including two future land use models. The 
model projecting the highest increase in heavy metal was based on a 
composite of the general plan maps for all of the counties in the 
estuary. Amounts of heavy metals including lead, nickel, and cadmium 
were projected to increase under both future land use models in all the 
watersheds that include habitat for these two plants.
    As discussed in Factor ``A'', habitat fragmentation may alter the 
physical environment. In addition, habitat fragmentation increases the 
risks of extinction due to random events. The small, isolated nature of 
the two populations of Cirsium hydrophilum var. hydrophilum also makes 
extinction from random events more likely. Random events such as insect 
or pest outbreaks, extended drought, oil spills or a combination of 
several such events, could destroy part of a single population or 
entire populations. The risk of extirpation due to genetic and 
demographic problems associated with small populations is a threat to 
at least the two occurrences of Cordylanthus mollis ssp. mollis that 
have fewer than 25 individuals. Additionally, the ongoing harvesting, 
planting of seed, and attempts at artificially expanding one of the 
populations in Contra Costa County, that is occurring without proper 
permits from the State of California, potentially threatens the genetic 
diversity of Cordylanthus mollis ssp. mollis (Deborah L. Elliot-Fisk, 
University of California at Davis, in. litt. 1996; David Tibor, CNPS, 
in. litt. 1996).
    Mosquito abatement will increase as a result of urbanization 
(Brenda Grewell, pers. comm. 1993). Mosquito abatement activities 
threaten Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis 
ssp. mollis. Within Suisun Marsh, both species grow along or near first 
order channels and mosquito abatement drainage ditches. Ditch cleaning 
and dredging, and the chemical spraying of vegetation along these 
channels or ditches may adversely impact individual plants. Plant 
populations parallel to these channels have been subjected to damage by 
vehicles used off established roads during mosquito abatement 
activities (Randall Brown, in. litt. 1993).

[[Page 61923]]

    Foot traffic is a threat to Cordylanthus mollis ssp. mollis. A 
trail runs through the occurrence located on East Bay Regional Park's 
Point Pinole Regional Seashore. Foot traffic also is a potential threat 
to the largest occurrence of Cordylanthus mollis ssp. mollis due to the 
increased urbanization occurring within 0.40 kilometer (0.25 mile). 
Foot traffic disturbance through Cordylanthus mollis ssp. mollis can 
easily damage the shallow and very brittle roots (Stromberg 1986).
    Erosion is a threat to Cordylanthus mollis ssp. mollis located on 
the Point Pinole Regional Seashore. The main population of Cordylanthus 
mollis ssp. mollis is immediately adjacent to a slough that is 
undergoing bank slumping (Stromberg 1986). Individual plants are 
threatened by undercutting of the bank and subsequent slumping of the 
marsh soil into the slough.
    Cattle grazing continues on both private and state owned tidal 
marsh lands adjacent to Hill Slough, and in the privately owned tidal 
marsh near McAvoy Harbor. Extensive areas of bare ground are now 
present within the Cordylanthus mollis ssp. mollis population, 
decreasing the size of the populations (R. Brown, in. litt. 1996).
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by these species in determining to finalize this 
rule. Cirsium hydrophilum var. hydrophilum, limited to only two 
populations, is threatened across all of its current range by indirect 
effects of urbanization, projects that alter the natural tidal regime, 
vulnerability to extinction due to random events and environmental 
factors, and competition with non-native vegetation. Urbanization, 
industrial development, and agricultural land conversion have 
extirpated or potentially extirpated nearly 45 percent of known 
occurrences of Cordylanthus mollis ssp. mollis. Cordylanthus mollis 
ssp. mollis is restricted to about 12 ha (31 acres) of habitat. 
Indirect effects of urbanization including habitat fragmentation and 
conversion, projects that alter natural tidal regimes, alteration of 
salinity levels, water pollution, mosquito abatement activities 
(including off-highway vehicle use), insect predation, erosion, foot 
traffic, and extirpation due to genetic and demographic problems 
continue to threaten most occurrences of Cordylanthus mollis ssp. 
mollis across its remaining range. Because Cirsium hydrophilum var. 
hydrophilum and Cordylanthus mollis ssp. mollis are in danger of 
extinction throughout all or a significant part of their respective 
ranges, they meet the definition of ``endangered'' as it is defined in 
the Act. The preferred action, therefore, is to list Cirsium 
hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis as 
endangered.
    Alternatives to this action were considered but not preferred. Not 
listing Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis 
ssp. mollis or listing these taxa 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 
at this time, as discussed below.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with section 4 of the Act, on which 
are found those physical or biological features (I) essential to the 
conservation of the species and (II) that may require special 
management consideration or protection and; (ii) specific areas outside 
the geographical area occupied by a species at the time it is listed, 
upon determination that such areas are essential for the conservation 
of the species. ``Conservation'' as it is 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 implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is listed. Service regulations (50 CFR 424.12(a)(1)) state 
that designation of critical habitat is not prudent when one or both of 
the following situations exist--(1) The species is threatened by taking 
or other human activity, and identification of critical habitat can be 
expected to increase the degree of threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species.
    The Service finds that designation of critical habitat is not 
prudent for Cirsium hydrophilum var. hydrophilum and Cordylanthus 
mollis ssp. mollis at this time.
    Critical habitat designation for Cirsium hydrophilum var. 
hydrophilum is not prudent due to lack of benefit. Cirsium hydrophilum 
var. hydrophilum is a wetland species and alteration of its tidal marsh 
habitat may be regulated by the Corps under the Clean Water Act. The 
inadequacies of the permitting process for wetland fills and other 
activities in protecting rare species is discussed under Factor ``D'' 
of the ``Summary of Factors Affecting the Species'' section above. 
Although there may be a Federal nexus for Cirsium hydrophilum var. 
hydrophilum through the Clean Water Act, the designation of critical 
habitat for this species would provide little or no benefit to the 
protection of this species beyond that provided by listing. Because of 
the small size of the total population of this species (i.e., a few 
thousand individuals) and the small area of occupied habitat (i.e., 
less than 0.40 ha (1 ac)), any adverse modification of the occupied 
habitat would likely jeopardize the continued existence of Cirsium 
hydrophilum var. hydrophilum.
    Critical habitat designation for Cordylanthus mollis ssp. mollis is 
not prudent due to lack of benefit. Cordylanthus mollis ssp. mollis is 
a wetland species and alteration of its tidal marsh habitat may be 
regulated by the Corps under the Clean Water Act. The inadequacies of 
the permitting process for wetland fills and other activities in 
protecting rare species is discussed under Factor ``D'' of the 
``Summary of Factors Affecting the Species'' section above. Because of 
the small size of the total population of this species (i.e., several 
thousand individuals) and the small area of occupied habitat (i.e., 
about 12 ha (31 ac)), any adverse modification of the occupied habitat 
would likely jeopardize the continued existence of Cordylanthus mollis 
ssp. mollis. Moreover, any benefit that may be gained by designation of 
critical habitat is out weighed by the detriment of such a designation. 
The publication of maps depicting precise locations of critical habitat 
that is required for designation would contribute to the further 
decline of this species by facilitating trespassing, uncontrolled 
collecting, and hindering recovery efforts. Urban encroachment in the 
Suisun Marsh Protection Zone increases the threat of foot traffic in 
sensitive tidal marsh areas where these plants occur (R. L. Brown, 
California Department of Water Resources, in. litt. 1993), and these 
areas are easily accessed by foot from the public roads near the marsh. 
As discussed in Factor ``E'' above, the ongoing harvesting of seeds and 
attempts at artificially expanding one of the populations in Contra 
Costa County by seeding, that is occurring without proper permits from 
the State of California, potentially threatens the genetic diversity of 
Cordylanthus mollis ssp. mollis (Deborah L. Elliot-Fisk,

[[Page 61924]]

University of California at Davis, in. litt. 1996; David Tibor, CNPS, 
in. litt. 1996).
    Critical habitat receives consideration under section 7 of the Act 
with regard to actions carried out, authorized, or funded by a Federal 
agency. As such, designation of critical habitat may affect non-Federal 
lands only where such a Federal nexus exists. Critical habitat 
designation requires Federal agencies to ensure that their actions do 
not result in destruction or adverse modification of critical habitat. 
However, both jeopardizing the continued existence of a species and 
adverse modification of critical habitat have similar standards and 
thus similar thresholds for violation of section 7 of the Act. In fact, 
biological opinions that conclude that a Federal agency action is 
likely to adversely modify critical habitat but not jeopardize the 
species for which it is designated are extremely rare.
    Most populations of the two taxa occur on private or State lands. 
The designation of critical habitat on private or State lands will 
afford no additional benefit for these species over that provided as a 
result of listing provided there is no Federal nexus. Designating 
critical habitat does not create a management plan for the areas where 
the listed species occurs; does not establish numerical population 
goals or prescribe specific management actions (inside or outside of 
critical habitat); and does not have a direct effect on areas not 
designated as critical habitat.
    Protection of the habitat of these species will be addressed 
through the section 4 recovery process and the section 7 consultation 
process. The Service believes that Federal involvement in the areas 
where these plants occur can be identified without the designation of 
critical habitat. For the reasons discussed above, the Service finds 
that the designation of critical habitat for these plants is not 
prudent.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
activities. Recognition through listing encourages and results in 
conservation actions by Federal, State, and private agencies, groups, 
and individuals. The Act provides for possible land acquisition and 
cooperation with the State and requires that recovery plans be 
developed 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 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. If a species is listed, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of such 
a species or to destroy or adversely modify its critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with the 
Service.
    One occurrence of Cordylanthus mollis ssp. mollis is on land that 
is managed by the U.S. Navy. Activities conducted by the U.S. Navy that 
may affect this species would be subject to review under section 7 of 
the Act. The U.S. Bureau of Reclamation and the Corps would become 
involved with these plants through their funding of projects that may 
directly impact the plants or support development of areas that contain 
suitable salt or brackish marsh habitat for these plants. The Corps 
also would be involved as an authorizing agency for permits to dredge 
or fill wetlands and navigable waters of the United States. The Corps 
regulates dredging and filling of jurisdictional wetlands and navigable 
waters, including salt marshes, under section 404 of the Clean Water 
Act. By regulation, nationwide permits may not be issued where a 
federally listed endangered or threatened species may be affected by 
the proposed project without first completing consultation pursuant to 
section 7 of the Act. The presence of a listed species would highlight 
the national importance of these resources. Highway construction and 
maintenance projects that receive funding from the Department of 
Transportation (Federal Highway Administration) also would be subject 
to review under section 7 of the Act.
    Listing Cirsium hydrophilum var. hydrophilum and Cordylanthus 
mollis ssp. mollis as endangered provides for development of a recovery 
plan (or plans) for them. Such plan(s) would bring together both State 
and Federal efforts for conservation of the plants. The recovery 
plan(s) would establish a framework for agencies to coordinate 
activities and cooperate with each other in conservation efforts. The 
plan(s) would set recovery priorities and estimate costs of various 
tasks necessary to accomplish them. It also would describe site-
specific management actions necessary to achieve conservation and 
survival of the two species. Additionally, pursuant to section 6 of the 
Act, the Service would be able to grant funds to affected states for 
management actions aiding the protection and recovery of these species.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
plants. All prohibitions of section 9(a)(2) of the Act, implemented by 
50 CFR 17.61, apply. These prohibitions, in part, make it illegal for 
any person subject to the jurisdiction of the United States to import 
or export; transport in interstate or foreign commerce in the course of 
a commercial activity, sell or offer for sale 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. Certain 
exceptions apply to agents of the Service and State conservation 
agencies.
    The Act and 50 CFR parts 17.62, 17.63, and 17.72 also provide for 
the issuance of permits to carry out otherwise prohibited activities 
involving endangered or threatened plant species under certain 
circumstances. The Service anticipates few permits would ever be sought 
or issued for the two species because the plants are not common in 
cultivation or in the wild. Requests for copies of the regulations on 
listed plants and inquiries regarding them may be addressed to U.S. 
Fish and Wildlife Service, Ecological Services, Endangered Species 
Permits, 911 NE 11th Avenue, Portland, Oregon 97232-4181; telephone 
503/231-2063 or FAX 503/231-6243).
    The Act directs Federal agencies to protect and promote the 
recovery of listed species. Collection of listed plants on Federal 
lands is prohibited. Proposed Federal projects and actions including 
activities on private or non-Federal lands that involve Federal funding 
or permitting require review to ensure they will not jeopardize the 
survival of any listed species, including plants. The Act does not 
prohibit ``take'' of listed plants on private lands, but private 
landowners

[[Page 61925]]

should be aware of State laws protecting imperiled plants.
    It is the policy of the Service, published in the Federal Register 
on July 1, 1994 (59 FR 34272), to identify to the maximum extent 
practicable at the time a species is listed those activities that would 
or would not constitute a violation of section 9 of the Act. The intent 
of this policy is to increase public awareness of the effect of the 
listing on proposed and ongoing activities within a species' range. 
Most occurrences of both plants are either on private or non-Federal 
lands. One population of Cordylanthus mollis ssp. mollis occurs on land 
managed by the Department of Defense (U.S. Navy). 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 at this time, 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--waterfowl hunting, bird watching, 
and fishing. 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. The Service is not aware of any 
otherwise lawful activities being conducted or proposed by the public 
that will be affected by this listing and result in a violation of 
section 9. General prohibitions and exceptions that apply to all 
endangered plants in section 9(a)(2) of the Act, implemented by 50 CFR 
17.61, 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 
Fish and Wildlife Office (see ADDRESSES section).

National Environmental Policy Act

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

Required Determinations

    The Service has examined this regulation under the Paperwork 
Reduction Act of 1995 and found it to contain no information collection 
requirements.

References Cited

    A complete list of all references cited herein is available, upon 
request, from the Field Supervisor, Sacramento Fish and Wildlife Office 
(see ADDRESSES section).
    Author: The primary authors of this final rule are Kirsten Tarp and 
Matthew D. Vandenberg, U.S. Fish and Wildlife Service, Sacramento Fish 
and Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulations Promulgation

    Accordingly, Part 17, subchapter B of chapter I, Title 50 of the 
Code of Federal Regulations, is amended as set forth below:

PART 17--[AMENDED]

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

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

    2. Section 17.12(h) is amended by adding the following, in 
alphabetical order under FLOWERING PLANTS, to the List of Endangered 
and Threatened Plants, to read as follows:


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

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

    Dated: November 12, 1997.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 97-30552 Filed 11-19-97; 8:45 am]
BILLING CODE 4310-55-P