[Federal Register Volume 64, Number 224 (Monday, November 22, 1999)]
[Rules and Regulations]
[Pages 63745-63752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30378]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE54


Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Status for the Plant Lesquerella thamnophila (Zapata 
Bladderpod)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
the plant Lesquerella thamnophila (Zapata bladderpod) to be an 
endangered species under the authority of the Endangered Species Act 
(Act) of 1973, as amended. Lesquerella thamnophila is currently known 
from four locations in Starr and Zapata Counties, Texas. Increased 
urban development, roadway construction, invasion of exotic species, 
increased oil and gas activities, alteration and conversion of native 
plant communities to improved pastures, overgrazing, and vulnerability 
from low population numbers threaten this species.

EFFECTIVE DATE: This final rule is effective December 22, 1999.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours (8:00 am to 4:30 pm, 
Monday through Friday), at the U.S. Fish and Wildlife Service, 
Ecological Services Field Office, c/o Texas A&M University-Corpus 
Christi, Campus Box 338, 6300 Ocean Drive, Corpus Christi, Texas 78412.

FOR FURTHER INFORMATION CONTACT: Field Supervisor of the Corpus Christi 
Ecological Services Field Office at the

[[Page 63746]]

above address (Telephone 316-994-9005; Facsimile 361-994-8262).

SUPPLEMENTARY INFORMATION:

Background

    Lesquerella thamnophila, a member of the Brassicaceae (mustard) 
family, was first collected in Zapata County, Texas, by R. C. Rollins 
in 1959. The species was named Lesquerella thamnophila in 1973 by R.C. 
Rollins and E.A. Shaw in their work on the genus Lesquerella (Rollins 
and Shaw 1973). The few collected specimens of Lesquerella thamnophila 
have all come from Starr and Zapata Counties in southern Texas.
    Lesquerella thamnophila is a pubescent (hairy), somewhat silvery-
green herbaceous (herblike) perennial plant, with sprawling stems 43-85 
centimeters (cm) (17-34 inches (in)) long. The plant exhibits a taproot 
system indicating a perennial life habit. It possesses narrow basal 
leaves 4-12 cm (1.5-4.8 in) long, and 7-15 millimeters (mm) (0.3-0.6 
in) wide, with entire to wavy or slightly toothed margins. Stem leaves 
are 3-4 cm (1-1.5 in) long and 2-8 mm (0.1-0.3 in) wide, with margins 
similar to basal leaves. The inflorescences (arrangement of flowers on 
a single stalk) are loose racemes of bright yellow-petaled flowers (the 
flowers are arranged along an axis with the lower flowers maturing 
first), which appear at different times of the year depending upon 
timing of rainfall. Fruits are round and 4.5-6.5 mm (0.2-0.8 in) in 
diameter on short, downward curving pedicels (slender stalks) (Poole 
1989).
    Physical and climatic characteristics of Starr and Zapata Counties 
include level to rolling topography and an average of 45-51 cm (18-20 
in) of precipitation, with major peaks of rainfall in September and 
May. Infrequent but heavy downpours associated with hurricanes and 
tropical storms contribute to wide fluctuations in rainfall from year 
to year, and skew the historical mean well above the yearly median. 
Drought, a recurring event in south Texas, has a profound effect on 
native vegetation. The range of Lesquerella thamnophila has been under 
an extreme drought situation for a number of years, making it likely 
that the plant would take advantage of any measure of rainfall to 
flower and reproduce. The numbers of plants present in known 
populations appear to fluctuate dramatically in response to 
precipitation (Poole 1989).
    Lesquerella thamnophila can occur on graveled to sandy-loam upland 
terraces above the Rio Grande floodplain. The known populations are 
associated with three Eocene-age geologic formations--Jackson, Laredo, 
and Yegua, which have yielded fossiliferous (containing fossils) and 
highly calcareous (containing calcium carbonate) sandstones and clays.
    Known Starr County populations occur within the Jimenez-Quemado 
soil association and on Catarina series soils. Jimenez-Quemado soils 
are well-drained, shallow, and gravelly to sandy loam underlain by 
caliche (a hard soil layer cemented by calcium carbonate). This soil 
association is broad, dissected, and irregularly shaped, and occurs on 
huge terraces 6-15 meters (20-50 feet) above the floodplains of the Rio 
Grande. In most areas, the Jimenez soils occupy the slope breaks 
extending from the tops of ridges to the bottoms of the slopes, and 
narrow valleys between. Quemado soils occur as narrow areas on 
ridgetops, where the slope range is 3-20 percent. Steep escarpments can 
be present with rocky outcrops adjacent to the river floodplain. 
Catarina series soils consist of clayey, saline upland soils developed 
from calcareous, gypsiferous (containing gypsum), and or saline clays 
that usually contain many drainages and erosional features. The 
underlying material of the soils contain calcareous concretions (a 
rounded mass of mineral matter), gypsum crystals, and marine shell 
fragments (Thompson et al. 1972).
    Bladderpod populations in Zapata County occur within the Zapata-
Maverick soil association. Zapata soils are shallow, loamy or mixed, 
hyperthermic (high temperature), well-drained, and nearly level with 
undulating slopes ranging from 0 to18 percent, primarily on uplands 
occurring over caliche. The upper portion of the soil horizon ranges 5-
25 cm (2-10 in), with course fragments consisting of few to 25 percent 
of angular caliche 2.5-20 cm (1-8 in) long, and combined with chert 
gravel. Maverick soils consist of upland clayey soils occurring over 
caliche with underlying calcareous material containing shale and gypsum 
crystals (Thompson, et al. 1972). The upper zone consists of a 
moderately deep soft shale bedrock, sloping 1-10 percent, well-drained, 
and forming clayey sediments. Ancient deposition of rock material from 
the Rio Grande can be found in these portions of the soil, and rock and 
Indian artifact collection has become a pastime for residents and 
visitors in the area.
    Lesquerella thamnophila occurs as an herbaceous component of an 
open Leucophyllum frutescens (cenizo) shrub community that grades into 
an Acacia rigidula (blackbrush) shrub community. Both plant communities 
dominate upland habitats on shallow soils near the Rio Grande (Diamond 
1990). Other related plant species in the cenizo and blackbrush 
communities include Acacia berlandieri (guajillo), Prosopis sp. 
(mesquite), Celtis pallida (granjeno), Yucca treculeana (Spanish 
dagger), Zizyphus obtusifolia (lotebush), and Guaiacum angustifolium 
(guayacan). The coverage of an aggressively invasive, nonnative grass, 
Cenchrus ciliaria (buffelgrass), is extensive at three of the four 
extant sites and present at the fourth. Dichanthium annulatum 
(Kleberg's bluestem), which is used for erosion control on roadways, 
has also begun to invade natural areas and is present at all four 
Lesquerella sites, although not as extensively as buffelgrass. These 
shrublands are sparsely vegetated due to the shallow, fast-draining, 
highly erosional soils and semi-arid climate (Poole 1989).
    Livestock production is one of the major land uses for the area, 
although wildlife rangeland production for hunting and recreational use 
is becoming increasingly important. Major game species include white-
tailed deer (Odocoileus virginianus), quail (Colinus virginianus and 
Callipepla squamata), mourning dove (Zenaida macroura), turkey 
(Meleagris gallopavo), javelina (Pecari tajacu), and feral pig (Sus 
scrofa). Oil and natural gas production has become one of the most 
significant forms of income in the area due to a drought-induced 
decrease in cattle production.
    Overgrazing by livestock, root-plowing of shrubs, and subsequent 
planting of buffelgrass for rangeland improvement has eliminated much 
of the natural habitat. Buffelgrass, the forage plant used by most 
ranchers in the area, has invaded natural areas and out-competed native 
plants. Results from various invasive grass studies indicate that there 
may be shade and root competition as well as possible allelopathic 
effects (suppression of growth of one plant species by another due to 
release of toxic substances) on native forbs and grasses (Nurdin and 
Fulbright 1990).
    Lesquerella thamnophila occurred historically in Starr and Zapata 
Counties in the United States. We do not have information on Mexican 
populations, although we have contacted biologists and botanists in 
Mexico regarding its possible occurrence there and use as a medicinal 
plant. One response indicated that the plant was historically found in 
northern Mexico and was used as a poultice for open sores, wounds, and 
skin eruptions (Garcia in Litt. 1999).
    Since the first collection of Lesquerella thamnophila in 1959, and 
nine additional populations of the plant

[[Page 63747]]

have been located since then. Of the ten total known populations, four 
are believed to have been extirpated, two populations have not been 
surveyed since 1996 due to restricted access to private lands, and four 
sites are known to support extant populations.

Sites Believed To Be Extirpated

    R. C. Rollins originally discovered Lesquerella thamnophila in 1959 
in Zapata County, in a subdivision near Falcon Lake. This type locality 
was relocated in 1985, when approximately 1,000 plants were seen within 
a 5-hectare (ha) (15-acre (ac)) area. In 1986, the site was under a 
drought condition, and no plants were found. Plants were located again 
in 1988, but the numbers of plants were not recorded. Biologists from 
the Texas Parks and Wildlife Department (TPWD) relocated the site in 
1996, but saw no plants. Our personnel also found no plants in 
September 1998 or April 1999. The habitat at this site has become 
severely degraded. Soil has eroded into roadside ditches, buffelgrass 
has invaded the sloping hillside, and housing construction has 
eliminated much of the natural habitat of the area. The population has 
likely been extirpated from this site.
    In 1994, a site along an electric transmission line in southwestern 
Starr County was reported, however, no specimen was collected, and no 
plants have been seen at this site since then. In 1996, we discovered 
another site consisting of about 50 plants, less than 1.6 kilometers (1 
mile) northeast of the above-mentioned site along a roadside cut of 
Highway 83. Surveys for this population were performed in 1997-1999. In 
1998, one plant was observed, and in 1999, we found no plants at this 
site. In 1995, we discovered a small site in the Highway 83 right-of-
way south of the city of Zapata. The TPWD and Service biologists found 
one plant in 1998, but none were found in our April 1999 survey.

Extant Populations

    In April 1994, TPWD personnel discovered a new Starr County 
population of about 50 plants. We purchased this site as part of the 
Lower Rio Grande Valley National Wildlife Refuge (LRGVNWR) complex and 
began to monitor population numbers. In 1996, LRGVNWR biologists 
recorded a total of 131 plants, 84 of which exhibited no seedling 
productivity. In 1997, after high precipitation, the number of 
individuals increased to several thousand within an approximately 1-ha 
(2-3-ac) portion of the tract. In September 1998, we surveyed the site 
and found few individuals, but one plant had produced two fruits. The 
majority of plants seen were located under the canopy of associated 
brush species. Previous to the survey, high amounts of precipitation 
fell at the site, eroding soils, exposing the calcareous sandstone, and 
leaving the root structure of some Lesquerella thamnophila plants 
partially exposed. Where Lesquerella thamnophila individuals were 
protected by associated plants, topsoil was retained, and the species 
was less affected by heavy rains.
    In April 1999, after resumption of drought conditions, only a few 
Lesquerella thamnophila plants were found. However, in June we visited 
the site after 10-15 cm (4-6 in) of rain had fallen in the area and 
observed a large number of Lesquerella thamnophila plants flowering and 
producing fruit. During a survey one week later, few flowers, but many 
pods at various stages of development, were present. Close inspection 
of the plants revealed possible predation on seeds within developed 
pods. Botanists at the LRGVNWR are currently conducting habitat and 
community structure studies of Lesquerella thamnophila and associated 
species present at this site. The studies include investigations on 
habitat composition and productivity in relation to shade effects, 
relationships with other plant species, and the degree of successful 
species propagation.
    Another historical site in Zapata County, originally reported by 
Lundell and Lundell in 1941, was re-verified by TPWD in 1985 (Poole 
1989). Approximately 5,000 plants were found in this area on the east 
side of Highway 83 located near the Arroyo Tigre Chiquito bridge. In 
1986, during drought conditions, only 28 plants were seen. Plants were 
again located in 1988, but no counts recorded. The TPWD and the Texas 
Department of Transportation (TDOT) established a management agreement 
to protect the site, and we and TPWD monitor this population annually. 
The TPWD recorded 10 reproductive plants in 1991, no plants in 1992, 
and 7 nonreproductive plants in 1995. No plants were found during 1996-
1998 surveys, however, TDOT biologists found five plants at the site in 
1999.
    In 1996, TPWD discovered about 100 plants in a vacant lot near the 
Siesta Shores Subdivision in Zapata County, and in January 1998, 
located many rosettes (plants whose leaves are spread flat at ground 
level). We found one plant in July 1999, but extensive housing 
construction had begun, which eliminated much of the potential habitat. 
The population at the site could be extirpated unless conservation 
measures can be implemented in the very near future.
    In 1986, TPWD found 20 plants on a 2-ha (5-ac) tract of a privately 
owned ranch in southwestern Starr County (Poole 1989). The TPWD 
personnel observed the species again in 1994 but did not count 
individuals. The TPWD biologists observed 20 or fewer individuals in 
1996. In 1999, the site was confirmed to support plants, but no 
information is available on the number of plants observed.

Populations for Which Status Is Unknown

    Three Starr County populations, including the one above, were known 
from private ranch sites near the towns of Roma and Los Saenz. Two of 
the private ranch sites have not been visited by us or TPWD personnel 
because we do not have permission to access these sites. Therefore, we 
do not know the status of Lesquerella thamnophila at these sites.

Previous Federal Action

    Federal action involving this species began with section 12 of the 
Act (16 U.S.C. 1531 et seq.), which directed the Secretary of the 
Smithsonian Institution to prepare a report on plants considered to be 
endangered, threatened, or extinct. The report, designated as House 
Document No. 94-51, was presented to Congress on January 9, 1975. On 
July 1, 1975, we published a notice in the Federal Register (40 FR 
27823) accepting the Smithsonian report as a petition within the 
context of section 4(c)(2) of the Act, now section 4(b)(3)(A), and 
announcing that we would initiate a review of the status of those 
plants. Lesquerella thamnophila was included as threatened in the 
Smithsonian report and in our notice.
    On June 16, 1976 (41 FR 24523), we published a proposed rule to 
determine approximately 1,700 species of vascular plants as endangered. 
Lesquerella thamnophila was included in this proposal. However, the 
1978 amendments to the Act required the withdrawal of all proposals 
over 2 years old (although a 1-year grace period was allowed for those 
proposals already over 2 years old). On December 10, 1979 (44 FR 
70796), we published a notice withdrawing that portion of the June 16, 
1976, proposal that had not been made final.
    On December 15, 1980 (45 FR 82823), we published a list of plants 
under review for listing as threatened or endangered, which included 
Lesquerella thamnophila as a category 2 candidate. ``Category 2 
candidates'' were those

[[Page 63748]]

species for which available information indicated listing as threatened 
or endangered may have been appropriate, but for which substantial data 
were not available to support preparation of a proposed rule.
    Section 4(b)(3)(B) of the Act requires that we make findings on 
petitions within 12 months of their receipt. Section 2(b)(1) of the 
1982 amendments to the Act required that all petitions pending as of 
October 13, 1982, be treated as having been submitted on that date. The 
1975 Smithsonian report was accepted as a petition, and all the plants 
noted within the report, including Lesquerella thamnophila, were 
treated as being newly petitioned on October 13, 1982. In each 
subsequent year from 1983 to 1993, we determined that listing 
Lesquerella thamnophila was warranted, but precluded by other listing 
actions of higher priority, and that additional data on vulnerability 
and threats were still being compiled.
    A status report on Lesquerella thamnophila was completed August 8, 
1989 (Poole 1989). That report provided sufficient information on 
biological vulnerability and threats to warrant designating the species 
as a category 1 candidate and to support preparation of a proposed rule 
to list Lesquerella thamnophila as endangered. ``'Category 1 
candidates''' were those species for which we had substantial 
information indicating that listing under the Act was warranted.
    Notices revising the 1980 list of plants under review for listing 
as endangered or threatened were published in the Federal Register on 
September 27, 1985 (50 FR 39626), February 21, 1990 (55 FR 6184), and 
September 30, 1993 (58 FR 51171). Lesquerella thamnophila was included 
in the September 30, 1993, notice as a category 1 candidate.
    Upon publication of the February 28, 1996, Notice of Review (61 FR 
7605), we ceased using category designations and included Lesquerella 
thamnophila as a candidate species. Candidate species are those for 
which we have on file sufficient information on biological 
vulnerability and threats to support proposals to list them as 
threatened or endangered species. We retained Lesquerella thamnophila 
as a candidate species in the September 19, 1997, Review of Plant and 
Animal Taxa (62 FR 49398). On January 22, 1998 (63 FR 3301), we 
published a proposed rule to list Lesquerella thamnophila as 
endangered, without critical habitat, in the Federal Register. We 
invited the public and State and Federal agencies to comment on the 
proposed listing.
    The processing of this final rule conforms with our Listing 
Priority Guidance published in the Federal Register on October 22, 1999 
(64 FR 57114). 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 (Priority 1). Second priority (Priority 2) is 
processing final determinations on proposed additions to the lists of 
endangered and threatened wildlife and plants. Third priority is 
processing new proposals to add species to the lists. The processing of 
administrative petition findings (petitions filed under section 4 of 
the Act) is the fourth priority. The processing of critical habitat 
determinations (prudency and determinability decisions) and proposed or 
final designations of critical habitat will be funded separately from 
other section 4 listing actions and will no longer be subject to 
prioritization under the Listing Priority Guidance. This final rule is 
a Priority 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

    The January 22, 1998, proposed rule and associated notification 
requested all interested parties to submit factual reports or 
information that might contribute to the development of a final rule. 
We published newspaper notices of the proposed rule in the Brownsville 
Herald on February 4, 1998; the Monitor (McAllen), the Valley Morning 
Star (Harlingen), the Rio Grande City Herald, and the Zapata News on 
February 5, 1998; and the February monthly issue of LareDOS (Laredo). 
The public comment period was open for 60 days, from January 22 to 
March 23, 1998.
    Five commenters, including the State and four individuals or 
groups, commented on the proposed rule. Three commenters opposed the 
listing; one commenter was neutral on listing; and one supported the 
listing. Issues raised by the commentors are discussed below.
    Issue 1: The listing of the plant poses a threat to landowners who 
earn their livelihood by cattle ranching or oil and gas production. 
Listing would also threaten the success of the North American Free 
Trade Agreement (NAFTA) by postponing construction of various roadways 
within south Texas.
    Response: The Act prohibits us from considering economic and other 
nonbiological factors in listing decisions. However, once a species is 
listed, we strive to minimize adverse economic impacts when considering 
how best to conserve listed species. The Act provides protection to 
listed plant species when landowners seek Federal permits, funding, or 
Federal loans for a land development project or other activities that 
may affect the species. Section 7(a)(2) of the Act requires Federal 
agencies to ensure that activities (such as road building) 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. Early coordination with State and Federal 
agencies can help minimize economic impacts and avoid unnecessary 
delays in project implementation.
    Endangered plants are not protected on private lands except when 
taken in knowing violation of a State law or regulation, including 
State criminal trespass law. However, we hope that listing the species 
will alert private landowners to the need to protect it and encourage 
them to work with us to develop conservation measures that will benefit 
both the landowner and the species.
    Issue 2: Additional surveys should be performed after rain events, 
and biological information should be gathered prior to listing, 
possibly to preclude listing.
    Response: Extirpations at historical sites and the apparent decline 
of extant Lesquerella thamnophila populations necessitates protecting 
the few known surviving plants under the Act. Should additional surveys 
and biological data indicate that the populations are more viable than 
most recently demonstrated, we would consider that information in 
formulating a recovery strategy for the species. Although the decrease 
in population number and size appears correlated with drought 
conditions, it is not known whether the remaining populations would 
rebound sufficiently following future rain events to justify not 
listing the species. Furthermore, delaying the listing process would 
increase the risk that more bladderpod populations would disappear. 
Because there are only four known populations scattered over a large 
geographical area, each loss decreases genetic variability and reduces 
the chances of the species' survival even after normal rainfall 
returns. The best scientific and commercial information available 
indicates that the species' existence is too precarious to delay the 
protections afforded by the Act.

Peer Review

    Our July 1, 1994, Peer Review Policy (59 FR 34270) requires that we 
solicit

[[Page 63749]]

the opinions of at least three independent specialists regarding 
pertinent scientific or commercial data on proposed species listings. 
We provided the proposed rule to 29 botanists and biologists outside 
the Service and asked for their review of the proposed action. We 
received responses from three biologists. Two supported listing the 
species and provided corrections to the proposed rule and other 
information. One respondent opposed listing on the grounds that further 
surveys would likely reveal additional populations, however, this 
scientist agreed that current information supports listing the species.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, we determined that Lesquerella thamnophila should be 
classified as an endangered species. We followed procedures found at 
section 4(a)(1) of the Act and the regulations implementing the listing 
provisions of the Act (50 CFR part 424). We may determine a species to 
be endangered or threatened due to one or more of the five factors 
described in section 4(a)(1). These factors and their application to 
Lesquerella thamnophila (Zapata bladderpod) (Rollins and Shaw), are as 
follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. Habitat destruction and 
modification are the primary threats to Lesquerella thamnophila. These 
threats include the introduction of nonnative pasture grasses, such as 
buffelgrass, and conversion of native rangeland to improved pasture, 
overgrazing, urban development, construction or improvement of highways 
and utility transmission systems necessary to support urban 
infrastructures, and oil and gas exploration and production. These 
types of activities have destroyed or altered more than 95 percent of 
the native habitat in south Texas (Jahrsdoerfer and Leslie 1988).
    A common practice in south Texas to improve rangeland for livestock 
production is to remove native shrubs through root-plowing or aerial 
herbicide application and then re-seeding the area with nonnative 
grasses. This practice potentially destroys Lesquerella thamnophila and 
its habitat. Buffelgrass has spread beyond improved pastureland and is 
now present throughout a large portion of south Texas. This invasive 
nonnative grass outcompetes and displaces native grasses, herbs, and 
small shrubs. Possible mechanisms for displacement of native species by 
invasive nonnatives could be loss of sites for native plant seedling 
establishment, light and moisture competition, and possibly 
allelopathic effects (Nurdin and Fulbright 1990).
    Much of south Texas has been affected by long-term grazing, and 
grazing continues to be an established practice on private lands. 
Vegetation of the semi-arid south Texas climate is less resilient to 
the impacts of long-term grazing than is the vegetation of wetter 
climates. This situation has led to severe depletion of the often 
highly erodible south Texas soils (Schlesinger, et al. 1990). It is 
impossible to calculate how much habitat occupied by Zapata bladderpod 
may have been lost due to the effects of long-term grazing and 
conversion of native rangeland to improved pasture.
    Lesquerella thamnophila is also threatened by potential urban 
development. Habitat at the type locality for this species has been 
reduced to a small vacant lot in a resort subdivision near Falcon 
Reservoir in the City of Zapata, Texas. This area is undergoing rapid 
development. Another Lesquerella thamnophila population, which had 
occurred in an abandoned trailer park, has disappeared. The current 
trend toward urbanization, including increased construction of 
convenience stores in the area, could extirpate remaining populations.
    South Texas is experiencing a rapid increase in highway 
improvements and construction to handle increased traffic stimulated by 
NAFTA. Existing roads that may be proposed for widening and/or paving 
lie adjacent to Lesquerella thamnophila populations. In addition, 
nonnative Kleberg's bluestem (Dichanthium annulatum) is used for 
errosion control, and that species is present at the known Lesquerella 
sites.
    South Texas is presently undergoing a significant increase in oil 
and gas exploration and production, especially in Zapata and Starr 
Counties. All phases of exploration and production have the potential 
to impact Lesquerella thamnophila populations and habitat. Seismic 
exploration requires clearing of extensive, temporary rights-of-way to 
facilitate equipment traffic. The construction of well pads, access and 
egress roads, electrical lines, and petroleum gathering lines from 
wells, if not planned properly, may destroy native habitat. The re-
seeding of nonnative grasses in pipeline rights-of-way not only hampers 
re-colonization by native species but further spreads invasive species 
that will displace native vegetation.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. Although reported to have medicinal values, the 
species is not known to be a product in commercial trade.
    C. Disease or predation. The populations of Lesquerella thamnophila 
have shown no evidence of disease. However, Poole (1989) reports that 
cattle graze Lesquerella to the extent that numbers of plants in 
populations subjected to grazing are severely reduced compared to those 
in adjacent, ungrazed lands. In addition, our biologists surveying for 
the plant at a site owned and protected by the LRGVNWR found evidence 
of browsing by native animal species on the plants. While consumption 
by herbivores is a natural event, browsing can be a greater threat 
during drought conditions when range quality is reduced and other 
forage species have been reduced or removed. The small number of extant 
sites and the low number of plants can result in greater susceptibility 
to browsing than likely was present when populations were at historical 
levels. The plants in this portion of south Texas are sensitive to 
browsing during drought conditions due to the semi-arid environment and 
the sparseness of vegetation, even under ideal range conditions. 
Additionally, biologists have discovered evidence of predation on seed 
material of Zapata bladderpod during status surveys.
    D. The inadequacy of existing regulatory mechanisms. The species is 
not currently protected by any Federal or State laws or regulations.
    E. Other natural or man-made factors affecting its continued 
existence. Lesquerella thamnophila populations adjacent to maintained 
highway rights-of-way are exposed to herbicides used to control 
vegetation around bridges, guardrails, signs, and reflector posts. 
Maintenance crews may also use herbicides to kill woody species 
encroaching into the rights-of-way and along fence lines. Any plants 
within these areas are also threatened by maintenance practices such as 
blading, disking, and re-seeding with erosion control seed mixtures 
that contain primarily non-native invasive grasses.
    Only four known Lesquerella thamnophila populations are known to 
exist, and these have widely fluctuating numbers of plants from year to 
year. The low plant numbers usually seen in these populations during 
drought years can result in genetic drift which can restrict genetic 
variability reducing the species' ability to overcome environmental 
stresses. The reduced number of plants during drought years, with 
populations

[[Page 63750]]

in some areas falling to zero above-ground vegetative individuals, also 
makes the species vulnerable to extinction from prolonged drought 
situations. The extreme rarity of this species makes populations 
vulnerable to extirpation and extinction from the variety of random 
environmental events mentioned, as well as human exploitation of its 
habitat.
    In finalizing this rule, we carefully assessed the best scientific 
and commercial information available regarding the past, present, and 
future threats faced by the species. Based on this evaluation, the 
preferred action is to list Lesquerella thamnophila as endangered. The 
Act defines an endangered species as one that is in danger of 
extinction throughout all or a significant portion of its range. A 
threatened species is defined as one that is likely to become an 
endangered species in the foreseeable future throughout all or a 
significant portion of its range. Endangered status is appropriate 
because of the species' limited distribution, low population numbers, 
and imminent threats of habitat destruction. Threatened status would 
not accurately reflect the current status of this species.

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 
geographic area occupied by a species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. ``Conservation'' 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.
    In the proposed rule, we indicated that designation of critical 
habitat was not prudent for Lesquerella thamnophila because of a 
concern that publication of precise maps and descriptions of critical 
habitat in the Federal Register could increase the vulnerability of 
this species to incidents of collection and vandalism. We also 
indicated that designation of critical habitat was not prudent because 
we believed it would not provide any additional benefit beyond that 
provided through listing as endangered.
    In the last few years, a series of court decisions have overturned 
Service determinations regarding a variety of species that designation 
of critical habitat would not be prudent (e.g., Natural Resources 
Defense Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th 
Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d 
1280 (D. Hawaii 1998)). Based on the standards applied in those 
judicial opinions, we have reexamined the question of whether critical 
habitat for Lesquerella thamnophila would be prudent.
    Due to the small number of populations, Lesquerella thamnophila is 
vulnerable to unrestricted collection, vandalism, or other disturbance. 
We remain concerned that these threats might be exacerbated by the 
publication of critical habitat maps and further dissemination of 
locational information. However, we have examined the evidence 
available for Lesquerella thamnophila and have not found specific 
evidence of taking, vandalism, collection, or trade of this species or 
any similarly situated species. Consequently, consistent with 
applicable regulations (50 CFR 424.12(a)(1)(i)) and recent case law, we 
do not expect that the identification of critical habitat will increase 
the degree of threat to this species of taking or other human activity.
    In the absence of a finding that critical habitat would increase 
threats to a species, if there are any benefits to critical habitat 
designation, then a prudent finding is warranted. In the case of this 
species, there may be some benefits to designation of critical habitat. 
The primary regulatory effect of critical habitat is the section 7 
requirement that Federal agencies refrain from taking any action that 
destroys or adversely modifies critical habitat. While a critical 
habitat designation for habitat currently occupied by this species 
would not be likely to change the section 7 consultation outcome 
because an action that destroys or adversely modifies such critical 
habitat would also be likely to result in jeopardy to the species, 
there may be instances where section 7 consultation would be triggered 
only if critical habitat is designated. Examples could include 
unoccupied habitat or occupied habitat that may become unoccupied in 
the future. There may also be some educational or informational 
benefits to designating critical habitat. Therefore, we find that 
critical habitat is prudent for Lesquerella thamnophila.
    The Final Listing Priority Guidance for FY 2000 (64 FR 57114) 
states, ``The processing of critical habitat determinations (prudency 
and determinability decisions) and proposed or final designations of 
critical habitat will be funded separately from other section 4 listing 
actions and will no longer be subject to prioritization under the 
Listing Priority Guidance. Critical habitat determinations, which were 
previously included in final listing rules published in the Federal 
Register, may now be processed separately, in which case stand-alone 
critical habitat determinations will be published as notices in the 
Federal Register. We will undertake critical habitat determinations and 
designations during FY 2000 as allowed by our funding allocation for 
that year.'' As explained in detail in the Listing Priority Guidance, 
our listing budget is currently insufficient to allow us to immediately 
complete all of the listing actions required by the Act. Deferral of 
the critical habitat designation for Lesquerella thamnophila will allow 
us to concentrate our limited resources on higher priority critical 
habitat and other listing actions, while allowing us to put in place 
protections needed for the conservation of Lesquerella thamnophila 
without further delay.
    We plan to employ a priority system for deciding which outstanding 
critical habitat designations should be addressed first. We will focus 
our efforts on those designations that will provide the most 
conservation benefit, taking into consideration the efficacy of 
critical habitat designation in addressing the threats to the species, 
and the magnitude and immediacy of those threats. We will develop a 
proposal to designate critical habitat for the Lesquerella thamnophila 
as soon as feasible, considering our workload priorities.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, preservation programs, and 
prohibitions against certain practices. Recognition through listing 
results in public awareness and conservation actions by Federal, State, 
and local agencies, as well as by private organizations and 
individuals. The Act provides for possible land acquisition, 
cooperation with the States, and requires that all Federal agencies use 
their authorities to carry out programs for the conservation of all 
listed species. The protection required of Federal agencies and the 
prohibitions against certain activities involving listed plants are 
discussed, in part, below.

[[Page 63751]]

    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as threatened or endangered 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)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of a listed species, or destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species, the responsible Federal agency must enter into 
consultation with us.
    Federal agency actions that may require consultation as described 
in the preceding paragraph include, but are not limited to, brush 
clearing for flood control in arroyos within the jurisdiction of the 
International Boundary and Water Commission; technical assistance to 
landowners by the Natural Resource Conservation Service (formerly Soil 
Conservation Service) for activities funded by the Consolidated Farm 
Service Agency (formerly Agricultural Stabilization and Conservation 
Service); and rangeland herbicide or pesticide registration by the 
Environmental Protection Agency. The Federal Highway Administration 
will need to consider the occurrence of the species in activities such 
as widening existing roadways, or constructing new highways, as well as 
some maintenance practices. The U.S. Department of Housing and Urban 
Development will need to consider this species when it permits or funds 
water, sewer, and power services for settlements. The Federal Energy 
Regulatory Commission will need to consider the occurrence of the 
species when it approves interstate pipelines and electrical 
transmission lines, especially in previously undisturbed natural areas.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
plants. All prohibitions of section 9(a)(2) of the Act, implemented by 
50 CFR 17.61, apply. These prohibitions, in part, make it illegal for 
any person subject to the jurisdiction of the United States to import 
or export, transport in interstate or foreign commerce in the course of 
a commercial activity, sell or offer for sale in interstate or foreign 
commerce any such plant species; or to remove and reduce the species to 
possession from areas under Federal jurisdiction. In addition, the Act 
prohibits the malicious damage or destruction of such plants on areas 
under Federal jurisdiction; and the removal, cutting, digging up, or 
damaging or destroying of such plants in any other area, including non-
Federal lands, in knowing violation of any State law or regulation, or 
in the course of any violation of a State criminal trespass law. 
Certain exceptions to the prohibitions apply to agents of the Fish and 
Wildlife Service and State conservation agencies.
    The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of 
permits to carry out otherwise prohibited activities involving 
endangered plants under certain circumstances. Such permits are 
available for scientific purposes and to enhance the propagation or 
survival of the species. We anticipate that few trade permits would 
ever be sought or issued because this species is not in cultivation nor 
common in the wild.
    Our policy (59 FR 34272) is to identify to the maximum extent 
practicable at the time a species is listed those activities that would 
or would not constitute a violation of section 9 of the Act. The intent 
of this policy is to increase public awareness of the effect of the 
listing on proposed and ongoing activities within a species' range.
    We believe that, based on the best information available at this 
time, the following actions will not result in a violation of section 
9, provided these activities are carried out in accordance with 
existing laws and regulations, including State laws and regulations, 
and permit requirements:
    (1) Activities authorized, funded, or carried out by Federal 
agencies (e.g., grazing management, agricultural conversions, flood and 
erosion control, residential development, recreational trail 
development, road construction, hazardous material containment and 
cleanup activities, prescribed burns, pesticide/herbicide application, 
construction or maintenance of pipelines or utility lines), when 
conducted in accordance with any reasonable and prudent measures given 
by us in a consultation under section 7 of the Act;
    (2) Casual, dispersed human activities on foot or horseback (e.g., 
birding, sightseeing, photography, camping, or 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 result in a violation of 
section 9; however, possible violations are not limited to these 
actions alone:
    (1) Collection, damage, or destruction of Lesquerella thamnophila 
on Federal lands without a Federal permit. Lesquerella thamnophila 
occurs on Federal lands under our jurisdiction.
    (2) Collection, damage, or destruction of this species on non-
Federal land if conducted in knowing violation of State law or 
regulations, or in the course of any violation of a State criminal 
trespass law.
    (3) Interstate or foreign commerce and import/export without 
previously obtaining an appropriate permit. Permits are available for 
purposes of scientific research and enhancement 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 
our Corpus Christi Ecological Services Field Office (see ADDRESSES 
section). Requests for copies of the regulations regarding listed 
plants and inquiries about prohibitions and permits may be addressed 
to--U.S. Fish and Wildlife Service, Branch of Endangered Species/
Permits, PO Box 1306, Albuquerque, New Mexico 87103 (telephone 505-248-
6920; facsimile 505-248-6922).

National Environmental Policy Act

    We determined we do not need to prepare Environmental Assessments 
and Environmental Impact Statements, as defined under the authority of 
the National Environmental Policy Act of 1969, in connection with 
regulations adopted pursuant to section 4(a) of the Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

Required Determinations

    This rule does not contain any information collection requirements 
for which Office of Management and Budget (OMB) approval is required 
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). 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. An agency may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number. This rule does 
not alter that information collection requirement.

[[Page 63752]]

References Cited

Diamond, D. 1990. Plant Communities of Texas (series level). Texas 
Parks and Wildlife Department. Austin, Texas.
Jahrsdoerfer, S.E. and D.M. Leslie, Jr. 1988. Tamaulipan Brushland 
of the Lower Rio Grande Valley of South Texas: Description, Human 
Impacts, and Management Options. U.S. Fish and Wildlife Service, 
Biological Report. 88(36). 63 pp.
Nurdin, and T. E. Fulbright. 1990. Germination of Two Legumes in 
Leachate from Introduced Grasses. Journal of Range Management 43: 5.
Poole, J. 1989. Status Report on Lesquerella thamnophila. U.S. Fish 
and Wildlife Service, Albuquerque, New Mexico.
Rollins, R.C. and E.A. Shaw. 1973. The Genus Lesquerella. Harvard 
University Press, Cambridge, Massachusetts.
Schlesinger, W.H., J.F. Reynolds, G.L. Cunningham, L.F. Huenneke, 
and W.G. Whitford. 1990. Biological Feedbacks in Global 
Desertification. Science 247:1043-1047.
Thompson, C.M., R.R. Sanders, and D. Williams. 1972. Soil Survey of 
Starr County, Texas. U.S. Department of Agriculture. Soil 
Conservation Service, Temple, Texas.

    Authors:
    The primary authors of this document are Loretta Pressly, Kathy 
Nemec, and Angie Brooks. Major contributors to this document are Robyn 
A. Cobb and Ernesto Reyes (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Final Regulation Promulgation

    For the reasons outlined in the preamble, we amend part 17, 
subchapter B of chapter I, title 50 of the Code of Federal Regulations, 
as follows:

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 Sec. 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
         Scientific name                Common name                                                                               habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                    *                  *                  *                *                  *                  *                  *
FLOWERING PLANTS
 
                    *                  *                  *                *                  *                  *                  *
Lesquerella thamnophila..........  Zapata bladderpod...  U.S.A. (TX)........  Cruciferae.........  E                       671          N/A          N/A
 
                    *                  *                  *                *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: November 16, 1999.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 99-30378 Filed 11-19-99; 8:45 am]
BILLING CODE 4310-55-P