[Federal Register Volume 63, Number 8 (Tuesday, January 13, 1998)]
[Proposed Rules]
[Pages 1948-1954]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-782]



[[Page 1948]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE52


Endangered and Threatened Wildlife and Plants; Proposed 
Threatened Status for the Plant Thelypodium howellii ssp. spectabilis 
(Howell's spectacular thelypody)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The Fish and Wildlife Service (Service) proposes to list 
Thelypodium howellii ssp. spectabilis (Howell's spectacular thelypody) 
as threatened pursuant to the Endangered Species Act of 1973, as 
amended (Act). Thelypodium howellii ssp. spectabilis is known from 11 
sites in Baker and Union counties, Oregon. This taxon is threatened by 
a variety of factors including habitat destruction and fragmentation 
from agricultural and urban development, grazing by domestic livestock, 
competition from non-native vegetation, and alterations of wetland 
hydrology. This proposal, if made final, would implement the Federal 
protection and recovery provisions afforded by the Act for the plant.

DATES: Comments from all interested parties must be received by March 
16, 1998. Public hearing requests must be received by February 27, 
1998.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to the U.S. Fish and Wildlife Service, Snake River Basin Office, 
1387 S. Vinnell Way, Room 368, Boise, Idaho 83709. Comments and 
materials received will be available for public inspection, by 
appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Robert Ruesink, Field Supervisor (see 
ADDRESSES section) (telephone 208/378-5243; facsimile 208/378-5262).

SUPPLEMENTARY INFORMATION:

Background

    Thelypodium howellii ssp. spectabilis is a herbaceous biennial that 
occurs in moist, alkaline meadow habitats at approximately 1,000 meters 
(m) (3,000 feet (ft)) to 1,100 m (3,500 ft) elevation in northeast 
Oregon. The plant is known from 11 sites (5 populations) ranging in 
size from 0.01 hectares (ha) (0.03 acres (ac)) to 16.8 ha (41.4 ac) in 
the Baker-Powder River valley in Baker and Union counties. The total 
occupied habitat for this species is approximately 40 ha (100 ac). One 
site, historically known from Malheur County (the type locality), has 
not been relocated since 1927 and is considered to be extirpated (Kagan 
1986). The entire extant range of this taxon lies within a 21 kilometer 
(km) (13 mile (mi)) radius of Haines, Oregon.
    The Baker-Powder River Valley region, containing the 11 extant 
Thelypodium howellii ssp. spectabilis sites, is an agricultural area 
due to its relatively low elevation and rich soils. The region is 
bordered on the west by the Elkhorn Mountains and on the east by the 
Wallowa Mountains (Kagan 1986). Annual precipitation for the Baker 
Valley averages 27 centimeters (cm) (10.6 inches (in)), most falling as 
snow in winter. Weather patterns follow the interior continental 
weather systems with little maritime influence. Winters are cold and 
summers are warm and dry (Larkin and Salzer 1992).
    Thelypodium howellii ssp. spectabilis grows to approximately 60 cm 
(2 ft) tall, with branches arising from near the base of the stem. The 
basal leaves are approximately 5 cm (2 in) long with wavy edges, and 
are arranged in a rosette. Stem leaves are shorter, narrow, and have 
smooth edges. Flowers appear in loose spikes at the ends of the stems. 
Flowers have four purple petals approximately 1.9 cm (0.75 in) in 
length, each of which is borne on a short (0.6 cm (0.25 in)) stalk. 
Fruits are long, slender pods (Greenleaf 1980, Kagan 1986).
    This taxon was thought to be extinct until rediscovered by Kagan in 
1980 near North Powder (Kagan 1986). The 11 sites currently known to 
contain Thelypodium howellii ssp. spectabilis are located near the 
communities of North Powder, Haines, and Baker. The North Powder T. 
howellii ssp. spectabilis population contains 5 sites. Two of these 
sites are provided some protection; the largest is subject to a 
conservation easement 16.8 ha (41.4 ac) on which the Oregon Department 
of Fish and Wildlife has the assigned management and administration 
responsibility; and one site near the town of North Powder, less than 
0.8 ha (2.3 ac) in size, until recently, had a plant protection 
agreement between the landowner and The Nature Conservancy. The Haines 
plant population consists of three small sites located in or near the 
town of Haines. A 0.7 ha (1.8 ac) site west of Baker is within a 8 ha 
(20 ac) pasture adjacent to a road. Another site north of Baker (0.03 
ha (0.08 ac)) exists in a small remnant of meadow habitat surrounded by 
farmland. One site approximately 8 km (5 mi) north of North Powder is 
located on private land at Clover Creek (Kagan 1986, Oregon Natural 
Heritage Program (ONHP) 1997).
    Thelypodium howellii var. spectabilis was first described by Peck 
in 1932 (Peck 1932) from a specimen collected in 1927 near Ironside, 
Oregon (Malheur County). In 1973, Al-Shehbaz revised the genus and 
elevated the variety to subspecies status (Al-Shehbaz 1973). This taxon 
has larger petals than T. howellii ssp. howellii, and the paired 
filaments are not united (Al-Shehbaz 1973, Kagan 1986, Antell 1990). In 
addition, although both taxa occur in eastern Oregon, habitats do not 
overlap (Kagan 1986). For purposes of this proposal, T. howellii ssp. 
spectabilis is recognized as a subspecies because of the taxonomic 
distinction made in 1973 (Al-Shehbaz 1973), although the plant was 
treated as a variety in the candidate assessment process (see Previous 
Federal Action section).
    Thelypodium howellii ssp. spectabilis occurs in wet alkaline 
meadows in valley bottoms, usually in and around woody shrubs that 
dominate the habitat on the knolls and along the edge of the wet meadow 
habitat between the knolls. Associated species include Sarcobatus 
vermiculatus (greasewood), Distichlis stricta (alkali saltgrass), 
Elymus cinereus (giant wild rye), Spartina gracilis (alkali cordgrass), 
and Poa juncifolia (alkali bluegrass) (Kagan 1986). Soils are 
pluvial(rain)-deposited alkaline clays mixed with recent alluvial 
(material deposited by running water) silts, and are moderately well-
drained (Kagan 1986).
    Thelypodium howellii ssp. spectabilis may be dependent on periodic 
flooding since it appears to rapidly colonize areas adjacent to streams 
that have flooded (Kagan 1986). In addition, this taxon does not 
compete well with encroaching weedy vegetation such as Dipsacus 
sylvestris (teasel) (Davis and Youtie 1995).

Previous Federal Action

    Federal government actions on the plant 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 included Thelypodium howellii var. spectabilis as 
a threatened species. The Service published a notice on July 1, 1975 
(40 FR 27823), of its acceptance of the report of the Smithsonian 
Institution as a petition within the context of section 4(c)(2) 
(petition provisions are now found in

[[Page 1949]]

section 4(b)(3) of the Act) and its intention thereby to review the 
status of the plant taxa named therein. The July 1, 1975, notice 
included the above taxon. 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, publication. 
Thelypodium howellii var. spectabilis was not included in the June 16, 
1976, Federal Register document.
    The Service published an updated notice of review for plants on 
December 15, 1980 (45 FR 82480). This notice included Thelypodium 
howellii var. spectabilis as a candidate. This designation for T. 
howellii var. spectabilis was retained in the November 28, 1983, 
supplement to the Notice of Review (48 FR 53640), as well as subsequent 
revisions on September 27, 1985 (50 FR 39526), February 21, 1990 (55 FR 
6184), and September 30, 1993 (50 FR 51143).
    Section 4(b)(3)(B) of the Act requires the Secretary to make 
findings on pending petitions that present substantial information 
indicating the petitioned action may be warranted 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 Thelypodium 
howellii var. spectabilis, because the 1975 Smithsonian report had been 
accepted as a petition. On October 13, 1983, the Service found that the 
petitioned listing of the 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). Such a finding requires the Service to consider the 
petition as having been resubmitted on the date of the finding, 
pursuant to section 4(b)(3)(C)(I) of the Act. The finding was reviewed 
annually in October of 1983 through 1996. Publication of this proposal 
constitutes the final finding for the petitioned action.
    The processing of this proposed rule conforms with the Service's 
final listing priority guidance published in the Federal Register on 
December 6, 1996 (61 FR 64475). The Service announced an extension of 
this guidance on October 23, 1997 (62 FR 55268), indicating that the 
1997 guidance will remain in effect until final guidance for fiscal 
year 1998 is published in the Federal Register. The guidance clarifies 
the order in which the Service will process rulemakings. The guidance 
calls for giving highest priority to handling emergency situations 
(Tier 1), second highest priority (Tier 2) to resolving the listing 
status of the outstanding proposed listings, and third priority (Tier 
3) to new proposals to add species to the list of threatened and 
endangered plants and animals. This proposed rule constitutes a Tier 3 
action. Additionally, the Service stated in the guidance that 
``effective April 1, 1997, the Service will concurrently undertake all 
of the activities presently included in Tiers 1, 2, and 3.'' The 
Service has begun implementing a more balanced listing program, 
including processing more Tier 3 activities. The completion of this 
Tier 3 activity (a proposal for a species with high-magnitude, imminent 
threats) follows those guidelines.

Summary of Factors Affecting the Species

    Section 4 of the Act and regulations (50 CFR part 424) issued to 
implement the listing provisions of the Act set forth the procedures 
for adding species to the Federal lists. A species may be determined to 
be an endangered or threatened species due to one or more of the five 
factors described in section 4(a)(1). These factors and their 
application to Thelypodium howellii ssp. spectabilis are as follows:

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

    Most of the habitat for Thelypodium howellii ssp. spectabilis has 
been modified or lost to urban and agricultural development. Habitat 
degradation at all remaining sites for this species is due to a 
combination of livestock grazing, agricultural conversion, hydrological 
modifications, and competition from non-native vegetation (see Factor 
E). These activities have resulted in the extirpation of T. howellii 
ssp. spectabilis from about half its former range in Baker, Union, and 
Malheur counties. The type locality, historically known from Malheur 
County, is considered to be extirpated due to past agricultural 
development (Kagan 1986, ONHP 1997). Since 1990, at least 40 percent of 
sites sampled in the town of North Powder, previously containing T. 
howellii ssp. spectabilis, have been extirpated (Robinson, in litt. 
1996). These sites were all located within areas subjected to grazing. 
Grazing, exotic species, and agricultural activities continue to 
threaten at least 85 percent of the remaining habitat for this species
(Table 1).

                                          Table 1.--Summary of Threats                                          
----------------------------------------------------------------------------------------------------------------
        Site (Population)          Hectares (Acres)     Number plants          Ownership            Threats     
----------------------------------------------------------------------------------------------------------------
Clover Creek....................        15.9 (39.2)  300 (Kagan 1986)...  Private...........  Livestock grazing,
                                                                                               herbicides.      
North Powder 2 (North Powder)...          0.9 (2.3)  16,000 (Salzer, in   Private...........  Non-native        
                                                      litt. 1996).                             vegetation.      
Miles easement (North Powder)...        16.8 (41.4)  greater than 2,500   Private (conserv.   Livestock grazing,
                                                      (Robinson, in        easement).          hydrologic       
                                                      litt. 1996).                             modifications.   
Hot Creek east of I-85 (North           0.24 (0.59)  12 (Kagan, pers.     Private (ODOT 1)..  Naturally         
 Powder).                                             comm., 1995).                            occurring events.
Hot Creek North (North Powder)..        0.01 (0.03)  10 (Robinson, in     Private...........  Livestock grazing,
                                                      litt. 1996).                             naturally        
                                                                                               occurring events.
Powder River (North Powder).....        0.03 (0.07)  100 (Robinson, in    Private (ODOT)....  Livestock grazing.
                                                      litt. 1996).                                              
Haines Rodeo (Haines)...........         4.3 (10.6)  10,000 (Kagan 1986)  Private (ODOT)....  Urbanization,     
                                                                                               mowing.          
 Haines water tower (Haines)....          0.4 (1.0)  Greater than 1,000   Unknown (private).  Urbanization.     
                                                      (Robinson, in                                             
                                                      litt. 1996).                                              
Haines 4th and Olson (Haines)...         0.1. (0.3)  Not Available......  Private...........  Urbanization.     

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Baker City North................        0.03 (0.08)  40 (Kagan, pers.     Private...........  Agricultural      
                                                      comm., 1995).                            conversion,      
                                                                                               herbicides.      
Pocahontas Road.................          0.7 (1.8)  1,500 (Kagan 1986).  Private...........  Livestock grazing,
                                                                                               weeds.           
----------------------------------------------------------------------------------------------------------------
1 Oregon Department of Transportation easement.                                                                 

    In 1994, a large section of habitat formally occupied by 
Thelypodium howellii ssp. spectabilis at the Haines rodeo grounds was 
destroyed when a parking lot was constructed. Within the City of 
Haines, all remaining habitat containing T. howellii ssp. spectabilis 
is being impacted by residential construction, trampling, and other 
activities. Urbanization represents a major threat for this species 
within the city limits of Haines.
    Thelypodium howellii ssp. spectabilis is threatened by changes in 
hydrology related primarily to historic and current land uses such as 
agricultural conversion and flood control. Modifying the intensity and 
frequency of flooding events and soil moisture levels can significantly 
alter plant habitat suitability. If moisture levels stay high later in 
the spring or summer, species such as sedges and rushes will out 
compete T. howellii ssp. spectabilis; if the soil becomes too saline, 
Distichlis will out grow T. howellii ssp. spectabilis (Davis and Youtie 
1995). Irrigation practices in the vicinity of T. howellii ssp. 
spectabilis habitat tend to increase soil moisture levels and can also 
increase soil salinity (Davis and Youtie 1995), making the habitat less 
suitable for this plant. Hydrological modifications have been observed 
in at least two sites containing this taxon in the vicinity of North 
Powder (Davis and Youtie 1995, Robinson in litt. 1996). In addition, it 
is likely that natural hydrologic processes have been altered at all of 
the existing sites due to surrounding land uses including agriculture 
and residential/urban development.

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

    The plant is not a source for human food, nor of commercial 
horticulture interest. Therefore, this is not a factor to be considered 
in the listing decision at this time.

C. Disease or Predation

    Thelypodium howellii ssp. spectabilis is palatable to livestock 
(Kagan 1986, Davis and Youtie 1995). Cattle directly consume and 
trample individual plants (Kagan 1986). Native herbivores (e.g., deer 
and elk) likely consume T. howellii ssp. spectabilis plants; however, 
there is little evidence to suggest that herbivory by native ungulates 
currently poses a significant threat to this taxon (Kagan 1986).
    Livestock grazing can negatively impact habitat and contribute to 
reduced reproduction of this species (ONHP 1997). In particular, spring 
and early summer grazing adversely affects reproduction for Thelypodium 
howellii ssp. spectabilis by removing flowers and/or fruits, and 
individual plants get trampled during their period of active growth 
(generally from May through July).
    In July 1995, Berta Youtie (plant ecologist, The Nature 
Conservancy) and Andrew Robinson (botanist, FWS, Oregon State Office) 
found that cattle had consumed all Thelypodium howellii ssp. 
spectabilis plants that were present within a pasture at Clover Creek; 
plants were only observed in an adjacent area that was not subject to 
grazing. The Clover Creek site (15.9 ha (39.2 ac)) supports the second 
largest remaining plant habitat area.
    At another site, intentionally not grazed for the last 5 years, 
Thelypodium howellii ssp. spectabilis plants have expanded into 
previously unoccupied areas. Areas that were previously heavily grazed 
now contain higher densities and larger plants than marginal refugia 
habitat beneath Sarcobatus (Robinson, in litt. 1996). However, this 
site, while under a permanent conservation easement, has been subjected 
to trespass grazing on at least two occasions during the past 2 years 
(A. Robinson, pers. comm., 1997).
    The Service is not opposed to grazing when best management 
practices are used, and maintains that best grazing management 
practices may be compatible with natural resource objectives under 
certain circumstances. Depending on site conditions, appropriate 
grazing practices during certain times of the year may not necessarily 
be detrimental to populations of Thelypodium howellii ssp. spectabilis. 
For example, winter grazing of light to moderate intensity, when 
managed to prevent erosion and trampling impacts, may be compatible 
with the maintenance of Thelypodium habitat. However, because the plant 
is very palatable to livestock, grazing during the active growing 
season (typically spring, summer, and possibly fall) can adversely 
impact this species.

D. The Inadequacy of Existing Regulatory Mechanisms

    Thelypodium howellii ssp. spectabilis is listed as endangered by 
the State of Oregon (Oregon Department of Agriculture). However, the 
State Endangered Species Act does not provide protection for species on 
private land. Therefore, under State law any plant protection is at the 
discretion of the landowner.
    The Oregon Department of Transportation (ODOT) currently considers 
potential impacts to Thelypodium howellii ssp. spectabilis in their 
road maintenance activities where it occurs at three sites that are 
partially within ODOT rights-of-way. However, two of these sites are 
small, less than 0.4 ha (1 ac) in size, and the third site (at Haines 
rodeo ground) is threatened by activities that are not controlled by 
ODOT.
    Thelypodium howellii ssp. spectabilis could potentially be affected 
by projects requiring a permit under section 404 of the Clean Water 
Act. Under section 404, the U.S. Army Corps of Engineers (Corps) 
regulates the discharge of fill material into waters of the United 
States including navigable and isolated waterbodies, headwaters, and 
adjacent wetlands. Section 404 regulations require applicants to obtain 
an individual permit to place fill for projects affecting greater than 
4 ha (10 ac) of water. Projects can qualify for authorization under 
Nationwide Permit 26 (NWP 26) if the discharge does not cause the loss 
of more than 1 ha (3 ac) of water or cause the loss of water for a 
distance greater than 152 m (500 linear ft) of stream bed. Projects 
that qualify for authorization under NWP 26 may proceed without prior 
notification to the Corps if the discharge would cause the loss of less 
than .12 ha (1/3 ac) of water (33 CFR Sec. 330. App. A 26b.). 
Evaluation of impacts of such projects by the resource agencies though 
the section

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404 process is thus not an option. Corps Division and District 
Engineers may require that an individual section 404 permit be obtained 
if projects otherwise qualifying under NWP 26 would cause greater than 
minimal individual or cumulative environmental impacts. Corps 
regulations implementing the Clean Water Act require withholding 
authorization under NWP 26 if the existence of a listed endangered or 
threatened species would be jeopardized, regardless of the significance 
of the affected wetland resources (33 CFR Sec. 330.4 (f)). Candidate 
species receive no special consideration. Thus, this taxon currently 
receives insufficient protection under the Clean Water Act.
    The Oregon Department of Fish and Wildlife (ODFW) currently is 
designated as the easement manager of a wildlife area that contains 
Thelypodium howellii ssp. spectabilis (Conservation Easement 1991). The 
conservation easement was established by the Farm Service Agency to 
protect a large wetland complex and related resources. However, a 
preliminary draft management plan (ODFW 1996) for this site does not 
adequately provide for the long-term maintenance of the plant and there 
is uncertainty about the willingness of ODFW to manage the property (J. 
Lauman, ODFW, in litt. 1996). The final management plan may better 
address concerns regarding the viability of this species (e.g., 
potential hydrological modifications of existing habitat), but 
development of the final plan has not yet been initiated. In addition, 
although this site is under a conservation easement, trespass grazing 
by cattle has occurred on at least two occasions in the last 2 years 
and continues to threaten T. howellii ssp. spectabilis habitat onsite.
    One Thelypodium howellii ssp. spectabilis site had a plant 
protection agreement between the landowner and The Nature Conservancy. 
However, the agreement has expired and the amount of occupied habitat 
(less than 0.5 ha (1 ac)) onsite is not expected to provide for the 
long-term viability of the species in the absence of intensive 
management (B. Youtie, The Nature Conservancy, pers. comm., 1997).

E. Other Natural or Manmade Factors Affecting its Continued Existence

    Mowing of Thelypodium howellii ssp. spectabilis habitat at the 
Haines rodeo ground typically occurs annually, and can impact this 
species if performed during the growing season prior to seed set. 
Historically, annual rodeos were held in July; however, in 1995 an 
additional spring rodeo was held in May. Mowing to prepare for the 
spring rodeo occurs prior to seed set, and if this practice continues, 
it will adversely affect reproduction of the plant. The Haines rodeo 
ground currently supports the third largest habitat area for T. 
howellii ssp. spectabilis.
    Competition from nonnative plant species including Dipsacus 
sylvestris (teasel), Cirsium vulgare (bull thistle), C. canadensis 
(Canada thistle), and Melilotus officinalis (yellow sweet clover) also 
threatens the long-term survival of Thelypodium howellii ssp. 
spectabilis (Davis and Youtie 1995). The rapid expansion of D. 
sylvestris is considered to be a significant threat to this species 
(Larkin and Salzer 1992). At several sites, the formerly mesic meadow 
communities containing Sarcobatus (greasewood) and T. howellii ssp. 
spectabilis have largely been replaced by nonnative species.
    At least two sites containing Thelypodium howellii ssp. spectabilis 
are directly adjacent to fields where crops such as wheat and barley 
are produced. The use of dicot-specific herbicides in these areas 
threatens T. howellii ssp. spectabilis when overspraying occurs (J. 
Kagan, plant ecologist, Oregon Natural Heritage Program, pers. comm., 
1997). One of these sites (Clover Creek) currently contains the second 
largest habitat area for this species.
    Because most populations of this species are small and existing 
habitat is fragmented by agricultural conversion, grazing, roads, and 
urbanization, naturally occurring events, such as drought, represent 
threats to the continued existence of this species. Of the 11 sites for 
this species, over half (54 percent) are 0.4 ha (1 ac) or less. Only 
three sites are larger than 4 ha (10 ac).
    Grazing by livestock tends to fragment Thelypodium howellii ssp. 
spectabilis populations by reducing the density of plants in openings, 
and restricting individuals to protected sites (e.g., beneath 
Sarcobatus plants or spiny shrubs) (Kagan 1986, Robinson, in litt. 
1996). Such habitat fragmentation also severely restricts the potential 
for plant population expansion. Most known populations of T. howellii 
ssp. spectabilis contain a low number of individual plants and/or are 
limited geographically so that their future survival may depend on 
recovery actions such as restoring degraded habitat areas and removing 
competing non-native vegetation.
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by the species in determining to propose this 
rule. Most of the remaining sites that support Thelypodium howellii 
ssp. spectabilis are small and fragmented, and all existing sites are 
vulnerable to impacts from grazing in addition to urban and 
agricultural development. One site is under a permanent conservation 
easement, although management of this site has not been completely 
effective at maintaining T. howellii ssp. spectabilis habitat in the 
past. The Service is currently working with the easement manager to 
better address management of the plant habitat at this site including 
construction of more than 6 km (4 mi) of fence to protect the habitat 
from livestock grazing.
    Because it is possible that grazing can be managed in a manner that 
will not adversely affect habitat for Thelypodium howellii ssp. 
spectabilis, and the site containing the largest habitat area for this 
taxon is subject to a permanent conservation easement, we have 
determined that this species is not immediately threatened with 
extinction. However, if population declines continue, and threats are 
not adequately addressed, this species could be threatened with 
extinction in the foreseeable future. Based on this evaluation, the 
preferred action is to list T. howellii ssp. spectabilis as threatened. 
For reasons discussed below, critical habitat is not being proposed at 
this time.

Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as: (I) 
the specific areas within the geographical area occupied by a species, 
at the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection and; (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
determination that such areas are essential for the conservation of the 
species. ``Conservation'' means the use of all methods and procedures 
needed to bring the species to the point at which listing under the Act 
is no longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is listed. The Service finds that designation of critical 
habitat is not prudent for Thelypodium howellii ssp. spectabilis. 
Service regulations (50 CFR 424.12 (a)(1)) state that designation of

[[Page 1952]]

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.
    Critical habitat designation for Thelypodium howellii ssp. 
spectabilis is not prudent because both of the above described 
situations exist. Although this biennial plant is not of horticultural 
interest, the listing in and of itself contributes to a certain level 
of risk from over-collection. This is because listing acknowledges the 
rarity of a species, which then creates a certain level of demand by 
collectors. Designating critical habitat, including the required 
disclosure of precise maps and descriptions of critical habitat, would 
further advertize the rarity of this plant and provide a road map to 
occupied sites causing even greater threat to T. howellii ssp. 
spectabilis from vandalism, trampling or unauthorized collection (M. 
Steenson, Portland Nursery Inc., pers. comm. 1997). Disseminating 
specific, sensitive location records can encourage plant poaching (M. 
Bosch, U.S. Forest Service, pers. comm. 1997). Easily accessible 
roadside populations with few individuals would be particularly 
susceptible to indiscriminate collection by persons interested in rare 
plants. Plants, unlike most animal species protected under the Act, are 
particularly vulnerable to trespass because of their inability to 
escape when collectors arrive.
    Critical habitat designation for Thelypodium howellii ssp. 
spectabilis is also not prudent due to lack of benefit because such 
designation provides protection only on Federal lands or on private 
lands when there is Federal involvement through authorization or 
funding of, or participation in, a project or activity. All known 
occurrences of this plant are on private land, and activities 
constituting threats to the species, (see factors A through E in 
``Summary of Factors Affecting the Species'') including grazing, 
agricultural and urban development, alterations of wetland hydrology 
and competition from non-native vegetation are, for the most part, not 
subject to section 7 consultation. Although there may occasionally be a 
Federal nexus for T. howellii ssp. spectabilis through regulation of 
wetland fill and removal activities under the Clean Water Act, the 
designation of critical habitat for this plant would provide no benefit 
beyond that provided by listing. For example, the plant is restricted 
to 11 known sites (seven less than an acre in size) in unique moist 
alkaline meadow habitat located in valley bottoms, and any action that 
would adversely modify habitat at these sites also would likely 
jeopardize the continued existence of the species because the 
biological threshold for triggering either determination would be the 
same. In view of the limited habitat, the loss of any of the 11 sites 
from Corps regulated wetland fill activities would likely result in the 
adverse modification and jeopardy conclusion. Even as T. howellii ssp. 
spectabilis recovers and the known occupied sites totaling 
approximately 40 hectares (100 acres) increase as a result of 
management activities, this would hold true because the adverse 
modification and jeopardy thresholds would remain the same. Thus, in 
this case, the prohibition on adverse modification would provide no 
benefit beyond that provided by the prohibition on jeopardy. The 
designation of critical habitat, therefore, would not provide 
additional benefit for the species.
    Moreover, if sometime in the future there is additional Federal 
involvement through permitting or funding, such as through 
Environmental Protection Agency, Federal Housing and Farm Service 
Agency or Federal Highway Administration action, critical habitat 
designation would not provide any added benefit to the species. Federal 
involvement, where it does occur, can be identified without the 
designation of critical habitat because interagency coordination 
requirements (e.g. Fish and Wildlife Coordination Act) are already in 
place. Designating critical habitat would not create a management plan 
for the plant, or establish numerical population goals for long-term 
survival of the species nor directly affect areas not designated as 
critical habitat. Protection of this plant will most effectively be 
addressed through the recovery process and the jeopardy prohibition of 
section 7.
    The Service acknowledges that critical habitat designation, in some 
situations, may provide some value to the species by identifying areas 
important for species conservation and calling attention to those areas 
in special need of protection. Critical habitat designation of suitable 
unoccupied habitat may also benefit this species by alerting permitting 
agencies to potential sites for reintroduction and allow them the 
opportunity to evaluate proposals that may affect these areas. However, 
in this case, the few existing sites of Thelypodium howellii ssp. 
spectabilis are known by the private landowners and, if future 
management actions include unoccupied habitat, any benefit provided by 
designation of such habitat as critical will be accomplished more 
effectively and efficiently with the current coordination process.
    The Service is currently working with involved agencies and 
landowners to periodically survey and monitor Thelypodium howellii ssp. 
spectabilis population status and develop plant management strategies. 
All involved parties and landowners have been notified of the 
importance of protecting the habitat of the remaining populations of T. 
howellii ssp. spectabilis and plant protection agreements for some 
sites are in place. The Nature Conservancy is close to completing a 
conservation easement for protecting plant habitat in Baker County 
(Pocahontas Road site 14417 G 8-6:J13F) (A. Robinson, pers. comm. 
1997). The livestock grazing threat is being addressed by working 
directly with the landowners to adjust seasonal use and through fence 
construction to limit livestock trespass. The plant is palatable to 
livestock and grazing occurring April through July can be detrimental 
to annual seed production; grazing in other times of year has little 
direct effect (Davis and Youtie 1995). Altered grazing practices can 
only be achieved through voluntary efforts of landowners. Designation 
of critical habitat would not change grazing practices.
    In addition to cooperative efforts between the Service and 
landowners, other governmental agencies offer opportunities to protect 
Thelypodium howellii ssp. spectabilis. All known locations of T. 
howellii ssp. spectabilis along road sides have been inconspicuously 
marked so Oregon State Highway Department crews can avoid destruction 
of plants during highway maintenance activities (A. Robinson, pers. 
comm. 1997). The Department of Agriculture, through its Wildlife 
Habitat Incentive Program offers funding to landowners which can be 
used to protect endangered plants, including T. howellii ssp. 
spectabilis (62 FR 49357). In view of ongoing actions and the lack of 
regulatory authority provided by designation of critical habitat, 
conservation and protection of the plant will be accomplished more 
effectively through procedures other than critical habitat designation.
    In conclusion, the designation of critical habitat for Thelypodium 
howellii ssp. spectabilis is not prudent because such designation would 
increase the degree of threat and would not be beneficial to the 
species.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or

[[Page 1953]]

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. Without the elevated profile that Federal listing 
affords, little likelihood exists that any additional conservation 
activities would be undertaken. The Act provides for possible land 
acquisition and cooperation with the State and requires that recovery 
actions be carried out for all listed species. The protection required 
of Federal agencies and the prohibitions against certain activities 
involving listed plants are discussed, in part, below.
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is being designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) of the Act requires Federal agencies to confer with the 
Service on any action that is likely to jeopardize the continued 
existence of a proposed species or result in destruction or adverse 
modification of proposed critical habitat. If a species is listed 
subsequently, section 7(a)(2) 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 formal consultation with the Service.
    Federal agencies that may have involvement with Thelypodium 
howellii ssp. spectabilis through section 7 include the U.S. Army Corps 
of Engineers and the Environmental Protection Agency through their 
permit authority under section 404 of the Clean Water Act. The Federal 
Housing Administration and Farm Service Agency may be affected through 
potential funding of housing and farm loans where this species or its 
habitat occurs. Highway construction and maintenance projects that 
receive funding from the Department of Transportation (Federal Highways 
Administration) will also be subject to review under section 7 of the 
Act.
    Listing Thelypodium howellii ssp. spectabilis would provide for 
development of a recovery plan for the plant. A recovery plan would 
bring together private, State, and Federal efforts for conservation of 
this species. The plan would establish a framework for agencies to 
coordinate activities and cooperate with each other in conservation 
efforts. The plan would set recovery priorities and estimate costs of 
various tasks necessary to accomplish them. The plan would also 
describe site-specific management actions necessary to achieve 
conservation and survival of the species. Additionally, pursuant to 
section 6 of the Act, the Service would be able to grant funds to an 
affected State such as Oregon for management actions promoting the 
protection and recovery of T. howellii ssp. spectabilis. Because all of 
the known location sites are on private land, the Service will pursue 
conservation easements and conservation agreements to help maintain 
and/or enhance habitat for the plant.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all threatened 
plants. All prohibitions of section 9(a)(2) of the Act, implemented by 
50 CFR 17.71 for threatened plants, apply. These prohibitions, with 
respect to any endangered or threatened species of plants, in part, 
make it illegal for any person subject to the jurisdiction of the 
United States to import or export, transport or ship 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. Seeds from 
cultivated specimens of threatened plant taxa are exempt from these 
prohibitions provided that a statement ``Of Cultivated Origin'' appears 
on the shipping containers. Certain exceptions to the prohibitions 
apply to agents of the Service and State conservation agencies.
    The Act and 50 CFR 17.72 also provide for the issuance of permits 
to carry out otherwise prohibited activities involving threatened plant 
species under certain circumstances. Such permits are available for 
scientific purposes and to enhance the propagation or survival of the 
species. For threatened plants, permits also are available for 
botanical or horticultural exhibition, educational purposes, or special 
purposes consistent with the purposes of the Act. The Service 
anticipates few trade permits would ever be sought or issued for the 
species because the plant is not common in cultivation or in the wild.
    It is the policy of the Service, published in the Federal Register 
on July 1, 1994 (59 FR 34272), to identify, to the maximum extent 
practicable at the time 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 effects of 
the listing on proposed and ongoing activities within the species' 
range. Collection, damage or destruction of this species on Federal 
land is prohibited, although in appropriate cases a Federal permit 
could be issued to allow collection for scientific or recovery 
purposes. However, Thelypodium howellii ssp. spectabilis is not known 
to occur on public (Federal) lands.
    Activities that are unlikely to violate section 9 include livestock 
grazing, construction or maintenance of fences and livestock water 
facilities, clearing a defensible space for fire protection around 
one's personal residence, and landscaping, including irrigation around 
one's personal residence. The Service is not aware of any otherwise 
lawful activities being conducted or proposed by the public that will 
be affected by this listing and result in a violation of section 9.
    Questions regarding whether specific activities may constitute a 
violation of section 9 should be directed to the Field Supervisor of 
the Snake River Basin Office (see ADDRESSES section). Requests for 
copies of the regulations on listed plants and inquiries regarding them 
may be addressed to the U.S. Fish and Wildlife Service, Ecological 
Services, Permits Branch, 911 NE 11th Ave., Portland, Oregon 97232-4181 
(503/231-6241).

Public Comments Solicited

    The Service intends that any final action resulting from this 
proposal will be as accurate and as effective as possible. Therefore, 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to Thelypodium howellii ssp. spectabilis;
    (2) The location of any additional populations of this species and 
the reasons why any habitat should or should not be determined to be 
critical habitat as provided by section 4 of the Act;
    (3) Additional information concerning the range, distribution, and 
population size of this species; and
    (4) Current or planned activities in the subject area and their 
possible impacts on this species.

[[Page 1954]]

    Final promulgation of the regulation(s) on this species will take 
into consideration the comments and any additional information received 
by the Service, and such communications may lead to a final regulation 
that differs from this proposal.
    The Act provides for one or more public hearing(s) on this 
proposal, if requested. Requests must be received within 45 days of the 
date of publication of the proposal in the Federal Register. Such 
requests must be made in writing and be addressed to the Field 
Supervisor, U.S. Fish and Wildlife Service, Snake River Basin Office, 
1387 S. Vinnell Way, Room 368, Boise, Idaho 83709.

National Environmental Policy Act

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

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

Al-Shehbaz, I.A. 1973. The biosystematics of the genus Thelypodium. 
Contr. Gray Herb. 204(93):115-117.
Antell, K.S. 1990. Howell's thelypody: a rare biennial mustard from 
Oregon. Biology Department, Eastern Oregon State College, LaGrande, 
Oregon.
Conservation Easement. 1991. Miles Wetland Property, located in 
North Powder, Oregon.
Davis, J.S. and B. Youtie. 1995. Site information and analysis: 
North Powder Thelypodium howellii ssp. spectabilis preserve. 
Prepared for The Nature Conservancy, Oregon Field Office, Portland, 
Oregon.
Greenleaf, J. 1980. Status report for Thelypodium howellii Wats ssp. 
spectabilis (Peck) Al-Shehbaz.
Kagan, J.S. 1986. Status report for Thelypodium howellii ssp. 
spectabilis. Oregon Natural Heritage Data Base, Portland, Oregon.
Larkin, G. and D. Salzer. 1992. A plant demography study of 
Delphinium leucocephalum, Thelypodium howellii ssp. spectabilis, 
Astragalus applegatei, and Lilium occidentale: preliminary report 
1990-1991. Prepared for The Nature Conservancy, Oregon Field Office, 
Portland, Oregon.
Oregon Department of Fish and Wildlife. 1996. Miles wetlands five-
year action plan: 1997-2002. Prepared for the U.S. Fish and Wildlife 
Service.
Oregon Natural Heritage Program. 1997. Element occurrence records 
for Thelypodium howellii ssp. spectabilis.
Peck, M. 1932. New species from Oregon. Torreya 32:150.

Author

    The primary authors of this proposed rule are Edna Rey-Vizgirdas, 
U.S. Fish and Wildlife Service, Snake River Basin Office (see ADDRESSES 
section); telephone 208/378-5243 and Andrew F. Robinson, Jr., U.S. Fish 
and Wildlife Service, Oregon State Office; telephone 503/231-6179.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

    2. Amend section 17.12(h) by adding the following, in alphabetical 
order under FLOWERING PLANTS, to the List of Endangered and Threatened 
Plants:


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                     Species                                                                                                                            
--------------------------------------------------   Historic range         Family            Status       When  listed      Critical      Special rules
        Scientific name            Common name                                                                                habitat                   
--------------------------------------------------------------------------------------------------------------------------------------------------------
       Flowering Plants                                                                                                                                 
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Thelypodium howellii ssp.       Howell's           U.S.A. (OR)......  Brassicaceae.....  T                ..............  NA              NA            
 spectabilis.                    spectacular                                                                                                            
                                 thelypody.                                                                                                             
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: December 29, 1997.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-782 Filed 1-12-98; 8:45 am]
BILLING CODE 4310-55-P