[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