[Federal Register Volume 64, Number 101 (Wednesday, May 26, 1999)]
[Rules and Regulations]
[Pages 28393-28403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13249]


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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; Threatened Status 
for the Plant Thelypodium howellii ssp. spectabilis (Howell's 
spectacular thelypody)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service) determine 
threatened status pursuant to the Endangered Species Act of 1973, as 
amended (Act), for Thelypodium howellii ssp. spectabilis (Howell's 
spectacular thelypody). 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 rule implements the Federal 
protection and recovery provisions afforded by the Act for the plant.

EFFECTIVE DATE: June 25, 1999.

ADDRESSES: The complete file for this rule is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, Snake River Basin Office, 1387 S. Vinnell 
Way, Room 368, Boise, Idaho 83709.

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 currently 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). Plants at the type locality in Malheur County have not been 
relocated since 1927 and are 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.
    Due to its relatively low elevation and rich soils, agriculture is 
the primary land use in the Baker-Powder River Valley region, which 
contains the 11 extant T. howellii ssp. spectabilis sites. 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 recently discovered sites 
containing T. howellii ssp. spectabilis are located near the 
communities of North Powder, Haines, and Baker. The North Powder T. 
howellii ssp. spectabilis population contains five sites; the largest 
is subject to a conservation easement (16.8 ha (41.4 ac)). Until 
recently, one site near the town of North Powder, less than 0.8 ha (2.3 
ac) in size, had a plant protection agreement between the landowner and 
The Nature Conservancy. The Haines plant population currently consists 
of three small sites located in or near the town of Haines. Since the 
publication of the proposed rule, an additional site in Haines was 
identified (B. Russell, consultant, in litt. 1998) and one previously 
known site in Haines was apparently extirpated by development (P. 
Brooks, Forest Service, in litt. 1998). 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) 1998).
    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, their habitats do 
not overlap (Kagan 1986). For purposes of this final rule, 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-
deposited alkaline clays mixed with recent alluvial 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

[[Page 28394]]

encroaching weedy vegetation such as Dipsacus sylvestris (teasel) 
(Davis and Youtie 1995).

Previous Federal Action

    Federal government actions for the plant began as a result of 
section 12 of the Endangered Species Act of 1973, (Act) as amended (16 
U.S.C. 1531 et seq.), which directed the Secretary of the Smithsonian 
Institution to prepare a report on those plants considered to be 
endangered, threatened, or extinct 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. We published a notice in the July 1, 1975, 
Federal Register (40 FR 27823) of our acceptance of the Smithsonian 
Institution report as a petition within the context of section 4(c)(2) 
(petition provisions are now found in section 4(b)(3) of the Act) and 
our 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, we 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. Thelypodium howellii var. 
spectabilis was not included in the June 16, 1976, Federal Register 
document.
    We published an updated notice of review for plants on December 15, 
1980 (45 FR 82480). This notice included Thelypodium howellii var. 
spectabilis as a category 1 candidate. Category 1 candidates were those 
for which the Service had sufficient information on biological 
vulnerability and threats to support proposals to list them as 
endangered or threatened species. 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). Upon publication of the February 28, 
1996 Notice of Review (61 FR 7596), we ceased using category 
designations and included T. howellii var. spectabilis as a candidate 
species. Candidate species are those for which the Service has on file 
sufficient information on biological vulnerability and threats to 
support proposals to list the species as threatened or endangered.
    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, we 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 us to consider the petition as 
having been resubmitted, pursuant to section 4(b)(3)(C)(I) of the Act. 
The finding was reviewed annually in October of 1983 through 1996.
    On January 13, 1998 (63 FR 1948), we published a proposal to list 
Thelypodium howellii ssp. spectabilis as a threatened species. We now 
determine T. howellii ssp. spectabilis to be a threatened species with 
the publication of this final rule.
    The processing of this final rule conforms with our Listing 
Priority Guidance published in the Federal Register on May 8, 1998 (63 
FR 25502). The guidance clarifies the order in which we will process 
rulemakings. Highest priority is processing emergency listing rules for 
any species determined to face a significant and imminent risk to its 
well being (Tier 1). Second priority (Tier 2) is processing final 
determinations on proposed additions to the lists of endangered and 
threatened wildlife and plants; the processing of new proposals to add 
species to the lists; the processing of administrative petition 
findings to add species to the lists, delist species, or reclassify 
listed species (petitions filed under section 4 of the Act); and a 
limited number of delisting and reclassifying actions. Processing of 
proposed or final designations of critical habitat is accorded the 
lowest priority (Tier 3). This final rule is a Tier 2 action and is 
being completed in accordance with the current Listing Priority 
Guidance. We have updated this rule to reflect any changes in 
information concerning distribution, status and threats since the 
publication of the proposed rule.

Summary of Comments and Recommendations

    In the January 13, 1998, proposed rule (63 FR 1948) and associated 
notifications, all interested parties were requested to submit factual 
reports or information that might contribute to the development of a 
final rule. The comment period was approximately three months long and 
closed on April 20, 1998. Appropriate State agencies, County 
governments, Federal agencies, scientific organizations, and other 
interested parties were contacted and requested to comment. A request 
for a public hearing was received from Rod Dowse of the Oregon 
Cattlemen's Association. On March 5, 1998, we published a notice in the 
Federal Register (63 FR 10817) announcing the public hearing and the 
extension of the public comment period until April 20, 1998. A notice 
announcing the public hearing and proposal was published in the Baker 
City Herald on February 24, 1998. We conducted a public hearing on 
April 9, 1998, at the Geiser Grand Hotel in Baker City, Oregon. 
Testimony was taken from 6 p.m. to 8 p.m. Four parties provided 
testimony.
    During the public comment period, we received written and oral 
comments from ten parties. Four commenters expressed support for the 
listing proposal, three commenters opposed the proposal, and three were 
neutral. Written comments and oral statements obtained during the 
public hearing and comment period are combined in the following 
discussion. Opposing comments and other comments questioning the rule 
were organized into specific issues. These issues and our response to 
each are summarized as follows:
    Issue 1: The Service should conduct additional surveys for 
Thelypodium howellii ssp. spectabilis in Baker, Union, and Malheur 
counties to clarify its distribution and abundance. A few commenters 
believed that T. howellii ssp. spectabilis may be more widespread, and 
that further surveys were needed before listing.
    Service response: We used information provided by the Oregon 
Natural Heritage Program and other knowledgeable botanists to evaluate 
the status of T. howellii ssp. spectabilis. Information from botanical 
collections that date from the 1920's was also utilized in the 
preparation of the proposed rule. The type locality in Malheur County 
has been resurveyed by numerous botanists over the past two decades, 
and T. howellii ssp. spectabilis has not been relocated. Recent surveys 
in Malheur County conducted by staff

[[Page 28395]]

from the Service (E. Rey-Vizgirdas, Service botanist, in litt. 1998) 
and Bureau of Land Management (J. Findlay, Bureau of Land Management, 
pers. comm. 1998) have also failed to locate additional sites or 
populations.
    Only one commenter provided information on a T. howellii ssp. 
spectabilis site that was not specifically mentioned in the proposed 
rule (B. Russell, in litt. 1998). This site, located on private land in 
Haines, Oregon, is within \1/2\ mile of other sites containing this 
species and is subject to similar threats as the populations discussed 
in the proposed rule. Although T. howellii ssp. spectabilis populations 
vary in size from year to year and new populations may be found in the 
future, similar threats are likely to apply to any newly discovered 
populations. In summary, no data were provided to substantiate the 
claim that T. howellii ssp. spectabilis is more widespread than 
previously described in the proposed rule.
    Issue 2: Several commenters believed that more information was 
needed on the life history of T. howellii ssp. spectabilis. Some asked 
for further clarification on its habitat and growth requirements. One 
commenter claimed that this taxon may be a weed, similar to other 
noxious weeds in the mustard family. Another asked whether T. howellii 
ssp. spectabilis could be transplanted or propagated.
    Service response: Although several widespread members of the 
mustard family such as whitetop (Cardaria draba), blue mustard 
(Chorispora tenella), and tumble mustard (Sisymbrium altissimum) are 
considered to be noxious weeds, no species of Thelypodium are known to 
be noxious weeds in the western United States (Whitson et al. 1996).
    In some cases, transplanting or propagating rare plants is 
essential to recovery. However, we believe that the protection of 
existing habitat for T. howellii ssp. spectabilis is critical to the 
long-term conservation of this species. We will consider the 
feasibility of propagating individuals or establishing additional 
populations of T. howellii ssp. spectabilis during the development of a 
recovery plan for this species. Additional information on the life 
history and growth requirements of T. howellii ssp. spectabilis also 
will be gathered during the recovery process.
    Issue 3: Several commenters questioned the effects of activities 
such as grazing, altered hydrology, and agriculture on T. howellii ssp. 
spectabilis. One commenter wondered if other plant species have 
outcompeted T. howellii ssp. spectabilis in areas where hydrologic 
conditions have changed. Another commenter stated that habitat for T. 
howellii ssp. spectabilis has been highly altered by changes in natural 
wetland hydrology, and that such hydrologic changes may not be 
restorable. A few commenters stated that disturbance may actually be 
beneficial for T. howellii ssp. spectabilis. One commenter believed 
that grazing management is appropriate for habitat conditions in 
eastern Oregon, and that grazing is not a threat to T. howellii ssp. 
spectabilis. In addition, the effects of livestock on this taxon are 
not well known. Some commenters stated that T. howellii ssp. 
spectabilis is not threatened by agriculture because it occurs on land 
not suitable for farming.
    Service response: Only one population of T. howellii ssp. 
spectabilis occurs on land that may be managed for the long-term 
protection of this species (a permanent conservation easement on 
private land near North Powder, Oregon). All remaining T. howellii ssp. 
spectabilis sites in Baker and Union counties are subject to a variety 
of threats including development, road construction projects and 
maintenance, trampling, recreational activities, and the invasion of 
exotic plant species.
    The Service agrees that appropriate grazing management may be 
suitable for maintaining general habitat conditions and forage species 
in Baker and Union counties. However, the impact of livestock grazing 
on rare plant species is influenced by factors including the season and 
magnitude of grazing. In some cases, grazing effects can be neutral or 
even beneficial if grazing is managed to minimize impacts such as 
trampling or compaction. As described in the ``Summary of Factors 
Affecting the Species'' section, we believe that grazing of T. howellii 
ssp. spectabilis during the active growing season can adversely impact 
the reproduction of this species. Reproduction by seed is necessary for 
the survival of annual and biennial plant species such as T. howellii 
ssp. spectabilis. Because T. howellii ssp. spectabilis is palatable to 
livestock, grazing in occupied habitat prior to seed maturation and 
dispersal can result in lower seed set and fewer seedlings of T. 
howellii ssp. spectabilis.
    Changes in hydrology or soil conditions often result in changes in 
the abundance and distribution of plant species. At several sites 
containing T. howellii ssp. spectabilis near Baker City and North 
Powder, T. howellii ssp. spectabilis plants are located adjacent to, 
but not within areas dominated by wetland plant species such as 
cattails (Typha spp.), sedges (Carex spp.), water hemlock (Cicuta 
douglasii), and teasel (Dipsacus sylvestris). Although it is not known 
whether these species have actually displaced T. howellii ssp. 
spectabilis, it is unlikely that T. howellii ssp. spectabilis can 
persist in areas where the hydrologic conditions are not favorable or 
in areas dominated by exotic species.
    Although remaining sites supporting T. howellii ssp. spectabilis 
may not be directly threatened by agricultural conversion, indirect 
effects of agriculture include habitat fragmentation, changes in local 
hydrologic conditions, and the use of herbicides and pesticides (which 
may impact pollinator populations). Because all known T. howellii ssp. 
spectabilis sites have been invaded at least to some extent by noxious 
weeds such as teasel and thistles (Cirsium spp.). As a result, T. 
howellii ssp. spectabilis is particularly vulnerable to herbicide use.
    Issue 4: One commenter questioned the accuracy of population data 
for T. howellii ssp. spectabilis presented in the proposed rule, and 
further believed that information based on ``ocular estimates'' of 
population size should not be used.
    Service response: We acknowledge that careful collection of 
population data (e.g., numbers of plants and population trends) can be 
useful to identify problems such as poor reproduction and lack of 
recruitment of new individuals into the population. However, like most 
annual plants, the population size of biennial plant species such as T. 
howellii ssp. spectabilis can vary greatly from year to year. We do not 
rely solely on population information, but consider threats to the 
species as outlined under the ``Summary of Factors Affecting the 
Species'' section of all proposed and final listing rules. These 
factors are discussed in detail for this species in the ``Summary of 
Factors Affecting the Species'' section of this final rule.
    Issue 5: One commenter felt that T. howellii ssp. spectabilis 
should be listed as endangered rather than threatened due to the 
limited number of sites and threats to its habitat, and believed that 
T. howellii ssp. spectabilis is not likely to persist in small habitat 
areas. Another commenter stated that although the population of T. 
howellii ssp. spectabilis fluctuates from year to year, eight T. 
howellii ssp. spectabilis sites that have been monitored since the 
1980's appear to be declining. Two commenters provided information 
about a proposed race track development project near Haines, stating 
that this project, if implemented, could damage habitat for T. howellii 
ssp. spectabilis, and that the land may be zoned for industrial 
purposes. One commenter provided information on a population of T.

[[Page 28396]]

howellii ssp. spectabilis in Haines that occurs directly adjacent to a 
proposed highway improvement project. This commenter further stated 
that, as of June 1997, at least two lots in Haines that contained T. 
howellii ssp. spectabilis were for sale.
    Service response: We acknowledge that T. howellii ssp. spectabilis 
sites located within or adjacent to the City of Haines are threatened 
by isolation, development, and other activities, as described in the 
``Summary of Factors Affecting the Species'' section.
    However, we believe that the site supporting the largest habitat 
area (located near North Powder) can be managed for the long-term 
protection of this species. In addition, at least three other sites 
containing T. howellii ssp. spectabilis (including the second largest 
habitat area at Clover Creek) are not currently threatened by 
development. We will continue to work with willing landowners and 
State, local, and Federal agencies to ensure that grazing and other 
activities are managed to reduce impacts to this species and its 
habitat. The species is not in imminent danger of extinction. Thus, the 
listing as threatened rather than endangered is appropriate.
    Issue 6: One commenter stated that T. howellii ssp. spectabilis 
should not be listed because economic impacts have not been considered.
    Service response: In accordance with 16 U.S.C., paragraph 1533 
(b)(1)(A), 50 CFR 424.11(b), and section 4(b)(1)(A) of the Act, listing 
decisions are made solely on the basis of the best available scientific 
and commercial data. Economic impacts cannot be considered when 
determining whether to list a species under the Act.
    Issue 7: One commenter stated that the Service should not list T. 
howellii ssp. spectabilis because it has no authority to list or 
regulate species under the Act that are not involved in interstate 
commerce. This commenter further believed that Federal listing for T. 
howellii ssp. spectabilis is unnecessary since it would not confer 
greater protection for this species than Oregon's Endangered Species 
Act already provides.
    Service response: The Federal government has the authority under 
the Commerce Clause of the U.S. Constitution to protect this species 
for the reasons given in Judge Wald's opinion and Judge Henderson's 
concurring opinion in National Association of Home Builders v. Babbitt, 
130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 1185 S. Ct. 2340 (1998). 
That case involved a challenge to application of the Act prohibitions 
to protect the listed Delhi Sands flower-loving fly. As with T. 
howellii ssp. spectabilis, the Delhi Sands flower-loving fly is endemic 
to only one state. Judge Wald held that application of the Act's 
prohibitions against taking of endangered species to this fly was a 
proper exercise of Commerce Clause power to regulate: (1) use of 
channels of interstate commerce; and (2) activities substantially 
affecting interstate commerce because it prevented loss of biodiversity 
and destructive interstate competition. Judge Henderson upheld 
protection of the fly because doing so prevents harm to the development 
that is part of interstate commerce.
    We believe that the Federal government has the authority under the 
Property Clause of the Constitution to protect this species. While T. 
howellii ssp. spectabilis is not known to occur on Federal land, it is 
clear that the species is part of an ecosystem that includes Federal 
lands. Baker and Union counties contain a significant amount of Federal 
land administered by the U.S. Forest Service and the Bureau of Land 
Management. Native species such as mule deer range widely across these 
lands, and are known to graze on T. howellii ssp. spectabilis . The 
courts have long recognized Federal authority under the Property Clause 
to protect Federal resources in such circumstances. See, e.g., Kleppe 
v. New Mexico, 429 U.S. 873 (1976); United States v. Alford, 274 U.S. 
264 (1927); Camfield v. United States, 167 U.S. 518 (1897); United 
States v. Lindsey, 595 F.2d 5 (9th Cir. 1979).
    As for whether Federal listing of T. howellii ssp. spectabilis 
would confer more protection than is already provided under Oregon law, 
the inadequacy of the State law is discussed below in Section D of the 
``Summary of Factors Affecting the Species'' section of this rule.

Peer Review

    In accordance with interagency policy published on July 1, 1994 (59 
FR 34270), we solicited the expert opinions of three independent 
specialists regarding pertinent scientific or commercial data and 
assumptions relating to the taxonomy, population status, and supportive 
biological and ecological information for the taxon under consideration 
for listing. The purpose of such review is to ensure that listing 
decisions are based on scientifically sound data, assumptions, and 
analyses, including input of appropriate experts and specialists. Two 
scientists responded to our request for peer review of this listing 
action. Both responders provided information which supported the 
biological and ecological data presented in the proposed rule.

Summary of Factors Affecting the Species

    Section 4 of the Endangered Species Act (16 U.S.C. 1533) and 
regulations (50 CFR part 424) that implement the listing provisions of 
the Act established 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 T. 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. Plants at the type locality in Malheur County are 
considered to be extirpated due to past agricultural development (Kagan 
1986, ONHP 1998). Since 1990, at least 40 percent of the sites sampled 
in North Powder that previously contained T. howellii ssp. spectabilis 
have been extirpated (A. Robinson, Service botanist, in litt. 1996). 
These sites were all located within areas subjected to grazing. 
Grazing, trampling, exotic species, and agricultural activities 
continue to threaten virtually all remaining habitat for this species 
(Table 1).

[[Page 28397]]



                                          Table 1.--Summary of Threats
----------------------------------------------------------------------------------------------------------------
                                     Hectares
        Site (Population)            (Acres)        Number plants           Ownership              Threats
----------------------------------------------------------------------------------------------------------------
Clover Creek.....................         15.9  300 (Kagan 1986)....  Private.............  Livestock grazing,
                                        (39.2)                                               herbicides.
North Powder 2 (North Powder)....          0.9  16,000 (Salzer, in    Private.............  Non-native
                                         (2.3)   litt. 1996).                                vegetation.
Miles easement (North Powder)....         16.8  Greater than 2,500    Private (conserv.     Livestock grazing,
                                        (41.4)   (Robinson, in litt.   easement).            hydrologic
                                                 1996).                                      modifications.
Hot Creek east of I-85 (North             0.24  12 (Kagan, pers.      Private (ODOT \1\)..  Naturally occurring
 Powder).                               (0.59)   comm., 1995).                               events.
Hot Creek North (North Powder)...         0.01  10 (Robinson, in      Private.............  Livestock grazing,
                                        (0.03)   litt. 1996).                                naturally occurring
                                                                                             events.
Powder River (North Powder)......         0.03  100 (Robinson, in     Private (ODOT \1\)..  Livestock grazing.
                                        (0.07)   litt. 1996).
Haines rodeo (Haines)............          4.3  June 1998: 10,000;    Private (ODOT \1\)..  Urbanization,
                                        (10.6)   July 1998: 300 (E.                          mowing.
                                                 Rey-Vizgirdas, in
                                                 litt. 1998).
Haines water tower (Haines)......          0.4  200 to 300 (E. Rey-   Unknown (private)...  Urbanization.
                                         (1.0)   Vizgirdas, in litt.
                                                 1998).
Haines west (Haines).............          Not  Not available.......  Private.............  Urbanization, road
                                     available                                               construction,
                                                                                             herbicides.
Haines 4th and Olson (Haines)....          0.1  700 to 800 (E. Rey-   Private.............  Possibly extirpated
                                         (0.3)   Vizgirdas, in litt.                         (Brooks, in litt.
                                                 1998).                                      1998)
Baker City North.................         0.03  40 (Kagan, pers.      Private.............  Agricultural
                                        (0.08)   comm., 1995).                               conversion,
                                                                                             herbicides.
Pocahontas Road..................          0.7  250 to 300 (E. Rey-   Private.............  Livestock grazing,
                                         (1.8)   Vizgirdas, in litt.                         non-native
                                                 1998).                                      vegetation.
----------------------------------------------------------------------------------------------------------------
\1\ Oregon Department of Transportation Easement.

    Within the City of Haines, all remaining habitat containing T. 
howellii ssp. spectabilis is being impacted by residential 
construction, trampling, and other activities. In 1994, a large section 
of habitat formerly occupied by T. howellii ssp. spectabilis at the 
Haines rodeo grounds was destroyed when a parking lot was constructed. 
Although an estimated 5,000 to 10,000 T. howellii ssp. spectabilis 
plants were present at the Haines rodeo grounds in late June 1998, the 
majority of this population was subsequently impacted by the July 4 and 
5 rodeo; the site was apparently mowed and used as a parking area 
during the rodeo (E. Rey-Vizgirdas, in litt. 1998). Immediately after 
the rodeo, fewer than 300 T. howellii ssp. spectabilis plants were 
observed at the site. Most of these plants were found along the fence 
line adjacent to the main road (outside the rodeo grounds). It is 
possible that the T. howellii ssp. spectabilis population may recover 
from this disturbance. However, it is unlikely that the entire 
population was able to reproduce successfully prior to mowing since 
most plants were in full bloom (without mature fruits) in late June (E. 
Rey-Vizgirdas, in litt. 1998).
    T. howellii ssp. spectabilis habitat within a proposed racing area 
development project adjacent to the rodeo grounds, will likely be 
impacted by the proposed project. However, since no specific T. 
howellii ssp. spectabilis surveys have been completed for this project, 
it is unclear how many T. howellii ssp. spectabilis plants will be 
affected.
    Another T. howellii ssp. spectabilis site in Haines, which 
contained approximately 800 plants in June 1998 (E. Rey-Vizgirdas, in 
litt. 1998), apparently was subsequently extirpated by residential 
development (P. Brooks, in litt. 1998). 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 outcompete 
T. howellii ssp. spectabilis; if the soil becomes too saline, 
Distichlis will outgrow 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 occurred 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 or of commercial 
horticulture interest. Therefore, this is not a factor 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 
(Odocoileus) and elk (Cervus)) 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 (Kagan 1986). In particular, 
spring and early summer grazing adversely affects reproduction for T. 
howellii ssp. spectabilis by removing flowers and/or

[[Page 28398]]

fruits, and individual plants get trampled during the period of active 
growth (generally from May through July).
    In July 1995, Berta Youtie (plant ecologist, The Nature 
Conservancy) and Andrew Robinson (Service botanist, Oregon State 
Office) found that cattle had consumed all T. 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 five years, 
T. howellii ssp. spectabilis plants have expanded into areas previously 
unoccupied. 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 three years (A. 
Robinson, pers. comm., 1997).

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, in such cases, any plant 
protection is at the discretion of the landowner.
    The Oregon Department of Transportation (ODOT) currently considers 
potential impacts to T. 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 
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 water bodies, 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 waters of the U.S. Projects can qualify for 
authorization under Nationwide Permit 26 (NWP 26) if the discharge does 
not cause the loss of more than three acres of waters of the U.S. nor 
cause the loss of waters of the U.S. for a distance greater than 500 
linear feet 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 \1/3\ of an acre of waters 
of the U.S. (33 CFR 330. App. A 26b.). Evaluation of impacts of such 
projects by the resource agencies through the section 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 330.4 (f)).
    The Oregon Department of Fish and Wildlife (ODFW) was previously 
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 Services 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 ODFW 
is withdrawing as easement manager (J. Lauman, ODFW, in litt. 1996; M. 
Smith, Service biologist, Oregon State Office, pers. comm. 1998). A new 
easement manager for the site has not been designated. Development of a 
final management plan for the site, which may better address concerns 
regarding the viability of this species (e.g., potential hydrological 
modifications of existing habitat), 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 
three years and continues to threaten T. howellii ssp. spectabilis 
habitat onsite.
    One T. 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., 1998).

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Mowing of T. 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. In some cases, mowing of T. howellii 
ssp. spectabilis habitat for the July rodeo can reduce reproduction if 
it occurs prior to seed set (see Factor A of this section). 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 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 T. 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, 6 (50 percent) are 0.4 ha (1 ac) or less. Only 3 sites 
are larger than 4 ha (10 ac). Small, isolated parcels are vulnerable to 
edge effects (i.e., invasion by exotic plant species, disturbances by 
local residents) and are unlikely to contribute significantly to the 
long-term preservation of this species.
    Livestock grazing tends to fragment T. howellii ssp. spectabilis 
populations by reducing the density of plants in

[[Page 28399]]

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 are 
limited geographically so that future survival may depend on recovery 
actions such as restoring degraded habitat areas and removing competing 
nonnative vegetation.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by this species in determining to issue this final rule. Most of 
the remaining sites that support T. howellii ssp. spectabilis are small 
and fragmented, and all existing sites are vulnerable to impacts from 
grazing, trampling, and non-native vegetation 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. We are currently working to better address management of the 
plant habitat at this site, which will include construction of fencing 
to protect habitat from livestock grazing and to assist in noxious weed 
control.
    We have determined that listing as threatened rather than 
endangered is appropriate for this species primarily because we believe 
that grazing can be managed in a manner that will not adversely affect 
habitat for T. howellii ssp. spectabilis, and the site containing the 
largest habitat area for this taxon is subject to a permanent 
conservation easement. In addition, the State and local weed management 
agencies have initiated measures that afford some protection to T. 
howellii ssp. spectabilis, such as identifying areas to be avoided by 
herbicide application, and placing signs in the area. Based on this 
evaluation, the preferred action is to list T. howellii ssp. 
spectabilis as threatened. Alternatives to this action were considered 
but not preferred because not listing this species would not provide 
adequate protection and would not be consistent with the Act. In 
addition, listing this species as endangered would not be appropriate 
because the State of Oregon and local management agencies have 
decreased the danger of extinction of T. howellii ssp. spectabilis at 
the present time. However, if population declines continue and threats 
are not adequately addressed, this species could be threatened with 
extinction in the foreseeable future. For reasons discussed below, 
critical habitat is not being proposed at this time.

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 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 the 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 as endangered or threatened. 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.
    Section 7(a)(2) of the Act requires Federal agencies to consult 
with the Service to ensure that any action authorized, funded, or 
carried out by such agency, does not jeopardize the continued existence 
of a federally listed species or does not destroy or adversely modify 
designated critical habitat. The requirement that Federal agencies 
refrain from contributing to the destruction or adverse modification of 
critical habitat in any action authorized, funded or carried out by 
such agency (agency action) is in addition to the section 7 prohibition 
against jeopardizing the continued existence of a listed species, and 
it is the only mandatory legal consequence of a critical habitat 
designation. The Service's implementing regulations (50 CFR part 402) 
define ``jeopardize the continuing existence of'' and ``destruction or 
adverse modification of'' in very similar terms. To jeopardize the 
continuing existence of a species means to engage in an action ``that 
reasonably would be expected to reduce appreciably the likelihood of 
both the survival and recovery of a listed species.'' Destruction or 
adverse modification of habitat means an ``alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species in the wild by reducing the reproduction, 
numbers, or distribution of that species.''
    Common to both definitions is an appreciable detrimental effect to 
both the survival and recovery of a listed species. An action that 
appreciably diminishes habitat for recovery and survival may also 
jeopardize the continued existence of the species by reducing 
reproduction, numbers, or distribution because negative impacts to such 
habitat may reduce population numbers, decrease reproductive success, 
or alter species distribution through habitat fragmentation.
    For a listed plant species, an analysis to determine jeopardy under 
section 7(a)(2) would take into consideration the loss of the species 
associated with habitat impacts. Such an analysis would closely 
parallel an analysis of habitat impacts conducted to determine adverse 
modification of critical habitat. As a result, an action that results 
in adverse modification also would almost certainly jeopardize the 
continued existence of the species concerned. Because habitat 
degradation and destruction is the primary threat to Thelypodium 
howellii ssp. spectabilis, listing it will ensure that section 7 
consultation occurs and potential impacts to the species and its 
habitat are considered for any Federal action that may affect this 
species. In many cases, listing also ensures that Federal agencies 
consult with the Service even when Federal actions may affect 
unoccupied suitable habitat where such habitat is essential to the 
survival and recovery of the species. This is especially important for 
plant species where consideration must be given to the seed bank 
component of the species, which are not necessarily visible in the 
habitat throughout the year. A significant portion of their vegetative 
structure may not be in evidence during cursory surveys; occupancy of 
suitable habitat can only be reliably determined during the growing 
season. In practice, we consult with Federal agencies proposing 
projects in areas where the species was known to recently occur or to 
harbor known seed banks.
    Apart from section 7, the Act provides no additional protection to 
lands designated as critical habitat. Designating critical habitat does 
not create a management plan for the areas where the listed species 
occurs; does

[[Page 28400]]

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.
    Critical habitat designation for Thelypodium howellii ssp. 
spectabilis is not prudent because it would provide no additional 
benefit on non-Federal lands beyond that provided by listing. T. 
howellii ssp. spectabilis is known to occur only on private lands. 
Critical habitat designation provides protection on non-Federal lands 
or private lands only when there is Federal involvement through 
authorization or funding of, or participation in, a project or activity 
(Federal nexus). In other words, designation of critical habitat on 
non-Federal lands does not compel or require the private or other non-
Federal landowner to undertake active management for the species or to 
modify any activities in the absence of a Federal nexus. Because all 
known occurrences of this plant are on private land, activities 
constituting threats to the species (see ``Summary of Factors Affecting 
the Species''), including grazing, agricultural and urban development, 
alterations of wetland hydrology, and competition from non-native 
vegetation, are generally not subject to section 7 consultation. Any 
Federal involvement, if it does occur, will be addressed regardless of 
whether critical habitat is designated because interagency coordination 
requirements such as the Fish and Wildlife Coordination Act and section 
7 of the Act are already in place. When T. howellii ssp. spectabilis is 
listed, activities occurring on all lands subject to Federal 
jurisdiction that may adversely affect these species would prompt the 
requirement for section 7 consultation, regardless of whether critical 
habitat has been designated. Although there may occasionally be a 
Federal nexus for T. howellii ssp. spectabilis through regulation of 
wetland fill and removal activities regulated by the U.S. Corps through 
section 404 of 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 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 for 
this species, the loss of any of the 11 sites resulting from Corps 
regulated wetland fill activities would likely result in a jeopardy 
determination. 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.
    While a designation of critical habitat on private lands would only 
affect actions where a Federal nexus is present and would not confer 
any additional benefit beyond that already provided by section 7 
consultation; and because virtually any action that would result in an 
adverse modification determination would also likely jeopardize the 
species, a designation of critical habitat on private lands could 
result in a detriment to the species. This is because the limited 
effect of a critical habitat designation on private lands is often 
misunderstood by private landowners whose property boundaries could be 
included within a general description of critical habitat for a 
specific species. Landowners may mistakenly believe that critical 
habitat designation will be an obstacle to land use and development and 
impose restrictions on their use of their property. In some cases, 
members of the public may believe critical habitat designation to be an 
attempt on the part of the government to confiscate their private 
property. Unfortunately, inaccurate and misleading statements reported 
through widely popular media available worldwide are the types of 
misinformation that can and have led private landowners to believe that 
critical habitat designations prohibit them from making private use of 
their land when, in fact, they face potential constraints only if they 
need a Federal permit or receive Federal funding to conduct specific 
activities on their lands, such as filling in wetlands. These types of 
misunderstandings, and the fear and mistrust they create among 
potentially affected landowners, makes it very difficult for us to 
cultivate meaningful working relationships with such landowners and to 
encourage voluntary participation in species conservation and recovery 
activities. Without the willing participation of landowners in the 
recovery process, we will find it very difficult to recover T. howellii 
ssp. spectabilis on the private lands where the only known populations 
occur.
    We are currently working with involved agencies and landowners to 
periodically survey and monitor T. howellii ssp. spectabilis 
populations and develop plant management strategies. We have notified 
all involved parties and landowners 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 
livestock grazing threat is being addressed by working directly with 
landowners to adjust seasonal use and through fence construction to 
limit livestock trespass. The plant is palatable to livestock, and 
grazing occurring from April through July can be detrimental to annual 
seed production; grazing at other times of the 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 us and landowners, other 
governmental agencies offer opportunities to protect T. 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 U.S. 
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 benefit provided by 
designation of critical habitat on non-Federal lands, we believe that 
conservation and protection of this plant will be accomplished more 
effectively through procedures other than critical habitat designation.
    A designation of critical habitat for T. howellii ssp. spectabilis 
on private lands could inadvertently encourage habitat destruction by 
private landowners wishing to rid themselves of the perceived 
endangered species problem. Listed plants have limited protection under 
the Act, particularly on private lands. Section 9(a)(2) of the Act, 
implemented by regulations at 50 CFR section 17.61 (endangered plants) 
and 50 CFR 17.71 (threatened plants) only prohibits (1) removal and 
reduction of listed plant species to possession from areas under 
Federal jurisdiction, or their malicious damage or destruction on areas 
under Federal jurisdiction; or (2) removal, cutting, digging up, or 
damaging or destroying any such species in knowing violation of any 
State law or regulation, including State criminal trespass laws. 
Generally, on private lands, collection of, or vandalism to, listed 
plants must occur

[[Page 28401]]

in violation of State law to be a violation of section 9. The Oregon 
Endangered Species Act does not protect listed plants on private lands. 
Thus, a private landowner concerned about perceived land management 
conflicts resulting from a critical habitat designation covering his 
property would likely face no legal consequences if the landowner 
removed the listed species or destroyed its habitat. The designation of 
critical habitat involves the publication of habitat descriptions and 
mapped locations of the species in the Federal Register, increasing the 
likelihood of unwanted notice by potential search and removal 
activities at specific sites.
    We acknowledge that in some situations critical habitat designation 
may provide some value to the species by notifying the public about 
areas important for the species conservation and calling attention to 
those areas in special need of protection. However, in this case, the 
few existing sites containing T. howellii ssp. spectabilis are already 
known by the affected private landowners. When this limited public 
notification benefit is weighed against the detriment to plant species 
associated with the widespread misunderstanding about the effects of 
such designation on private landowners and the environment of mistrust 
and fear that such misunderstandings can create, we conclude that the 
detriment to the species from a critical habitat designation covering 
non-federal lands outweighs the educational benefit of such designation 
and that such designation is therefore not prudent. The information and 
notification process can more effectively be accomplished by working 
directly with landowners and communities during the recovery planning 
process and by the section 7 consultation and coordination where the 
Federal nexus exists. The use of these existing processes will impart 
the same knowledge to the landowners that critical habitat designation 
would, but without the confusion and misunderstandings that may 
accompany a critical habitat designation.
    Although this biennial plant is not of horticultural interest, the 
listing in and of itself may contribute to an increased risk from over-
collection. Simply listing a species can precipitate commercial or 
scientific interest and activities, both legal and illegal, which can 
threaten the species through unauthorized and uncontrolled collection 
for both commercial and scientific purposes. The listing of species as 
endangered or threatened publicizes their rarity and may make them more 
susceptible to collection by researchers or curiosity seekers (Mariah 
Steenson pers. comm. 1997, M. Bosch, U.S. Forest Service in litt. 
1997). Disseminating specific, sensitive locations can encourage plant 
poaching (M. Bosch, U.S. Forest Service, pers. comm., 1997). For 
example, the Service designated critical habitat for the mountain 
golden heather (Hudsonia montana), a small shrub not previously known 
to be commercially valuable or particularly susceptible to collection 
or vandalism. After the critical habitat designation was published in 
the Federal Register, unknown persons visited a Forest Service 
wilderness area in North Carolina where the plants occurred and, with a 
recently published newspaper article and maps of the plant's critical 
habitat designation in hand, asked about the location of the plants. 
Several plants we had been monitoring were later found to be missing 
from unmarked Service study plots (Nora Murdock, U.S. Fish and Wildlife 
Service, pers. comm. 1998). Designating critical habitat, including the 
required disclosure of precise maps and descriptions of critical 
habitat, would further advertise the rarity of T. howellii ssp. 
spectabilis and provide a road map to occupied sites causing even 
greater threat to the species from vandalism, trampling, or 
unauthorized collection (M. Steenson, Portland Nursery Inc., 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 
collection because of their inability to escape when sought by 
collectors.
    In conclusion, we have weighed the lack of overall benefit of 
critical habitat designation beyond that provided by virtue of being 
listed as threatened or endangered along with the limited benefit of 
public notification against the detrimental effects of the negative 
public response and misunderstanding of what critical habitat 
designation means and the increased threats of illegal collection and 
vandalism, and have concluded that critical habitat designation is not 
prudent for T. howellii ssp. spectabilis.

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 public awareness and 
results in conservation actions by Federal, State and private agencies, 
groups, and individuals. The Act provides for possible land acquisition 
and cooperation with the states and requires that recovery actions be 
carried out for all listed species. 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 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 us 
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 us.
    Federal agencies that may have involvement with Thelypodium 
howellii ssp. spectabilis through section 7 include the Corps and the 
Environmental Protection Agency through their permit authority under 
section 404 of the Clean Water Act. The Federal Housing Administration 
and Farm Services 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.
    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

[[Page 28402]]

reduce to possession from areas under Federal jurisdiction. Seeds from 
cultivated specimens of threatened plant taxa also are exempt from 
these prohibitions provided that a statement ``Of Cultivated Origin'' 
appears on the shipping containers. Certain exceptions apply to agents 
of the Service and State conservation agencies.
    The Act and 50 CFR 17.72 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. We anticipate 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, T. howellii ssp. spectabilis is not known to occur 
on public (Federal) lands. We believe that, based upon the best 
available information, the following actions will not result in a 
violation of section 9, provided these activities are carried out in 
accordance with existing regulations and permit requirements:
    (1) Activities authorized, funded, or carried out by Federal 
agencies (if the species were found on Federal lands), (e.g., grazing 
management, agricultural conversions, wetland and riparian habitat 
modification, flood and erosion control, residential development, 
recreational trail development, road construction, hazardous material 
containment and cleanup activities, prescribed burns, pesticide/
herbicide application, pipelines or utility lines crossing suitable 
habitat,) when such activity is conducted in accordance with any 
reasonable and prudent measures given by the Service in a consultation 
conducted under section 7 of the Act;
    (2) Casual, dispersed human activities on foot or horseback (e.g., 
bird watching, sightseeing, photography, camping, hiking);
    (3) Activities on private lands that do not require Federal 
authorization and do not involve Federal funding, such as grazing 
management, agricultural conversions, flood and erosion control, 
residential development, road construction, and pesticide/herbicide 
application when consistent with label restrictions;
    (4) Residential landscape maintenance, including the clearing of 
vegetation around one's personal residence as a fire break.
    We believe that the following might potentially result in a 
violation of section 9; however, possible violations are not limited to 
these actions alone:
    (1) Unauthorized collecting of the species on Federal lands (if the 
species were to occur on Federal lands);
    (2) Application of pesticides/herbicides in violation of label 
restrictions;
    (3) Interstate or foreign commerce and import/export without 
previously obtaining an appropriate permit. Permits to conduct 
activities are available for purposes of scientific research and 
enhancement of propagation or survival of the species.
    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).

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 Endangered Species Act, as amended. A 
notice outlining our reasons for this determination was published in 
the Federal Register on October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

    This rule does not contain any information collection requirements 
for which the Office of Management and Budget (OMB) approval under the 
Paperwork reduction Act, 44 U.S.C. 3501 et seq. is required. An 
information collection related to the rule pertaining to permits for 
endangered and threatened species has OMB approval and is assigned 
clearance number 1018-0094. This rule does not alter that information 
collection requirement. For additional information concerning permits 
and associated requirements for threatened species, see 50 CFR 17.32.

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 (ODFW). 1996. Miles wetlands 
five-year action plan: 1997-2002. Prepared for the U.S. Fish and 
Wildlife Service.
Oregon Natural Heritage Program (ONHP). 1998. Element occurrence 
records for Thelypodium howellii ssp. spectabilis.
Peck, M. 1932. New species from Oregon. Torreya 32:150.
Whitson, T.D., L.C. Burrill, S.A. Dewey, D.W. Cudney, B.E. Nelson, 
R.D. Lee, R. Parker. 1996. Weeds of the West, 5th edition. Published 
by the University of Wyoming and the Western Society of Weed 
Science, Newark, California.

    Author. The primary author of this final rule is Edna Rey-
Vizgirdas, U.S. Fish and Wildlife Service, Snake River Basin Office 
(see ADDRESSES section); telephone 208/378-5243.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

[[Page 28403]]

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 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
 
                 *                  *                  *                    *                    *                  *                  *
Thelypodium howellii ssp.          Howell's spectacular  U.S.A. (OR)........  Brassicaceae         T                       662           NA           NA
 spectabilis.                       thelypody.                                 mustard.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: April 28, 1999.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 99-13249 Filed 5-25-99; 8:45 am]
BILLING CODE 4310-55-P