[Federal Register Volume 64, Number 245 (Wednesday, December 22, 1999)]
[Rules and Regulations]
[Pages 71680-71687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33100]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AE32
Endangered and Threatened Wildlife and Plants; Determination of
Endangered Status for Sidalcea oregana var. calva (Wenatchee Mountains
Checker-Mallow)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered species status under the Endangered Species Act (Act) of
1973, as amended, for Sidalcea oregana var. calva (Wenatchee Mountains
checker-mallow). This plant species is endemic to meadows that have
surface water or saturated soil in the spring and early summer at
middle elevations in the Wenatchee Mountains of Chelan County,
Washington. Although five populations of this plant are known, three of
these have very few individuals. The estimated total number of plants
is about 3,300. The primary threats to S. oregana var. calva include
habitat fragmentation and destruction due to alterations of hydrology,
rural residential development and associated activities, competition
from native and alien plants, recreation, fire suppression, and
activities associated with fire suppression. To a lesser extent, the
species is threatened by livestock grazing, road construction, and
timber harvesting and associated impacts including changes in surface
runoff in the small watersheds in which the plant occurs. This rule
implements the Federal protections provided by the Act for this plant.
EFFECTIVE DATE: This final rule is effective January 21, 2000.
ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours at the Western Washington
Office, North Pacific Coast Ecoregion, U.S. Fish and Wildlife Service,
510 Desmond Drive, Suite 102, Lacey, WA 98503-1273.
FOR FURTHER INFORMATION CONTACT: Gerry Jackson, Supervisor, at the
above address (telephone 360/753-4327; facsimile 360/753-9815).
SUPPLEMENTARY INFORMATION:
Background
Sidalcea oregana var. calva (Wenatchee Mountains checker-mallow) is
known only from the Wenatchee Mountains of central Washington.
Specimens assignable to var. calva were first collected from Icicle
Creek near Leavenworth in Chelan County and from wet meadows near the
town of Peshastin in Chelan County by Sandberg and Leiberg on July 25,
1893 (herbarium collection, stored in permanent collection at the
Smithsonian Institution and the University of Oregon herbaria (Sandberg
and Leiberg #586)). Occasional collections were made over subsequent
decades until the type specimen was collected by Hitchcock on June 21,
1951, from Camas Land in Chelan County (herbarium collection, stored in
permanent collection at Washington State University and the University
of Oregon (Hitchcock #19,427)). The taxon was first recognized as a
distinct variety named S. oregana ssp. oregana var. calva by Hitchcock
and Kruckeberg (1957). Hitchcock and Cronquist (1973) reduced S.
oregana ssp. oregana to varietal status (S. oregana var. spicata),
thereby eliminating the need to include the subspecies oregana as part
of the scientific name for this taxon. No further taxonomic revisions
have been made for this taxon. In recent discussions, knowledgeable
individuals confirmed the distinctness of this variety (Arthur
Kruckeberg, University of Washington, pers. comm. 1995; John Gamon,
Washington Natural Heritage Program, pers. comm. 1996).
A member of the mallow family (Malvaceae), Sidalcea oregana var.
calva is a perennial plant with a stout taproot that branches at the
root-crown and gives rise to several stems that are 20 to 150
centimeters (cm) (8 to 60 inches (in)) tall. Plants vary from glabrous
(lacking hairs and glands) to pubescent (hairy) or stellate (with star-
shaped hairs) below, are finely stellate above, and have flower
clusters with one to many stalked flowers arranged singly along a
common stem. The flowers have pink petals 1 to 2 cm (0.4 to 0.8 in)
long. The flowers are borne on stalks ranging from 1 to 10 millimeters
(mm) (0.04 to 0.4 in) in length; the calyx (outer whorl of floral
parts) ranges from uniformly finely stellate to bristly with a mixture
of longer, simple to four-rayed, spreading hairs sometimes as long as
2.5 to 3 mm (0.1 to 0.12 in) (Hitchcock and Cronquist 1961). Flowering
begins in the middle of June and peaks in the middle to end of July.
Fruits are ripe by August. Sidalcea oregana var. calva is similar
morphologically to S. oregana var. procera, which occurs in the same
general region but with a more southerly distribution. Sidalcea oregana
var. calva can be distinguished from var. procera by the type and
degree of pubescence on the stems and calyx and its large, fleshy,
basal leaves, which are smooth to the touch on both surfaces (Gamon
1987).
The historical site location of the 1893 collection near the town
of Peshastin and three other early (pre-1940) collections in the
Peshastin area have not been relocated (Gamon 1987). The location given
for each of these early collections was too vague to allow for
relocation. Conversion of the Peshastin and Leavenworth area to
orchards or other agricultural uses and rural residential development
has likely extirpated Sidalcea oregana var. calva from this area.
Resurveying of three other locations thought to have Sidalcea oregana
var. calva revealed plants found to be S. oregana var. procera (Gamon
1987). At another three sites where S. oregana var. calva was
discovered in 1984, no plants were found in 1987, possibly because the
few plants found in 1984 went undetected in 1987, the original location
information was imprecise, or the few plants found in 1984 did not
survive due to changes in the hydrologic regimes of the area (J. Gamon,
pers. comm. 1997).
Currently, Sidalcea oregana var. calva is known to occur at five
sites (populations). The largest population is located in an area
called Camas Land, a wetland and moist meadow complex surrounded by
ponderosa pine and Douglas-fir forests. The area is a mixture of
private land, State of Washington land managed as the Camas Land
Natural Area Preserve (NAP) by the Washington Department of Natural
Resources (WDNR), and land administered by the Wenatchee National
Forest (U.S. Forest Service). Camas Land is located and named on U.S.
Forest Service and WDNR maps. Based on a recent inventory, about 2,470
individuals occur on 36 hectares (ha) (90 acres (ac)) of WDNR property
in Camas Land (Washington Natural Heritage Program 1997). These plants
are thought to represent about 75 percent of the Camas Land population
(David Wilderman, WDNR, pers. comm. 1997). The second largest
population, discovered in 1987 on private land at Mountain Home Meadow,
consists of about 100 plants within a few hectares (Ted Thomas,
Service, pers. obs. 1995). Two other populations on the Wenatchee
National Forest have a total
[[Page 71681]]
of seven plants (Richy Harrod, U.S. Forest Service, pers. comm. 1997).
The fifth population, on private land, has fewer than 30 plants (T.
Thomas, pers. obs. 1995). The estimated total number of plants in these
5 populations is fewer than 3,300. The total area occupied by the 5
populations is approximately 50 ha (125 ac).
Sidalcea oregana var. calva is most abundant in moist meadows that
have surface water or saturated upper soil profiles during spring and
early summer, but it also occurs in open conifer stands dominated by
Pinus ponderosa (ponderosa pine) and Pseudotsuga menziesii (Douglas-
fir) and on the margins of shrub and hardwood thickets. Extant
populations are found at elevations ranging from 600 to 1,000 meters
(m) (1,970 to 3,300 feet (ft)). The soils are typically clay-loams and
silty loams with low moisture permeability. Associated species include
Populus tremuloides (quaking aspen), Crataegus douglasii (black
hawthorn), Symphoricarpus albus (common snowberry), Amelanchier
alnifolia (serviceberry), Lathyrus pauciflorus (few-flowered peavine),
Wyethia amplexicaulis (northern mule's-ear), Geranium viscosissimum
(sticky purple geranium) and Veratrum californicum (California false
hellebore). Sixty percent of the S. oregana var. calva populations are
found in association with Delphinium viridescens (Wenatchee larkspur),
a former Federal category 1 candidate plant species.
Previous Federal Action
Federal action on Sidalcea oregana var. calva began when we
published an updated Notice of Review for plants on December 15, 1980
(45 FR 82480). This notice included S. oregana var. calva as a category
1 candidate species. Category 1 candidates were defined as taxa for
which we had on file substantial information on biological
vulnerability and threats to support preparation of listing proposals.
The Notice of Review published on September 27, 1985 (50 FR 39526),
included Sidalcea oregana var. calva as a category 2 candidate species.
Category 2 candidates were defined as taxa for which information
indicated that proposing to list the taxa as endangered or threatened
was possibly appropriate, but for which substantial data on biological
vulnerability and threats were not currently known or on file to
support a listing proposal. Later notices of review published on
February 21, 1990 (55 FR 6185), and September 30, 1993 (58 FR 51144),
identified the plant as a category 1 candidate species. Upon
publication of the February 28, 1996, Notice of Review (61 FR 7596), we
ceased using the category designations and included Sidalcea oregana
var. calva 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 the species as
threatened or endangered.
Section 4(b)(3)(B) of the Act requires the Secretary to make
certain findings on pending petitions within 12 months of their
receipt. Section 2(b)(1) of the 1982 amendments further requires that
all petitions pending on October 13, 1982, be treated as having been
newly submitted on that date. That provision of the Act applied to
Sidalcea oregana var. calva, because the 1975 Smithsonian report had
been accepted as a petition. On October 13, 1983, we found that the
petitioned listing of this species was warranted but precluded by other
pending listing actions, in accordance with section 4(b)(3)(B)(iii) of
the Act; notification of this finding was published on January 20, 1984
(49 FR 2485). Such a finding requires the petition to be recycled,
pursuant to section 4(b)(3)(C)(i) of the Act. The finding was reviewed
annually in October of 1984 through 1995.
On August 1, 1997, we published a proposed rule to list Sidalcea
oregana var. calva as an endangered species (62 FR 41328). The comment
period was open until September 30, 1997. With publication of this
final rule, we now determine that Sidalcea oregana var. calva is
endangered.
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 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 distribution,
status, and threats since publishing the proposed rule and to
incorporate information obtained through the public comment period.
This additional information did not alter our decision to list this
species.
Summary of Comments and Recommendations
In the August 1, 1997, proposed rule (62 FR 41328) and associated
notifications, we requested interested parties to submit factual
reports or information that might contribute to the development of a
final rule. We sent announcements of the proposed rule to appropriate
Federal and State agencies, county governments, scientific
organizations, and other interested parties. We also published
announcements of the proposed rule in newspapers, including the Seattle
Times, Seattle Post-Intelligencer, Olympian, Wenatchee World,
Leavenworth Echo, Bremerton Sun, Centralia Chronicle, Everett World,
Longview World, Skagit Valley Herald, Peninsula Daily News, Spokesman
Review, Yakima Herald, Aberdeen Daily World, Bellingham Herald,
Bellevue Daily, and Vancouver Columbian, on August 1, 1997, inviting
public comment.
During the comment period, we received five comments, from one
Federal agency, one State agency, one conservation organization, and
two individuals or groups. All commenters, except one, supported the
listing of Sidalcea oregana var. calva under the Act.
Because multiple respondents offered similar comments, we grouped
comments of a similar nature or point. These comments and our responses
to each are discussed below.
Issue 1: One commenter was concerned that listing this species
would restrict further development of the commenter's property.
Our Response: Nothing prohibits ``take'' of plants on private land.
Future construction activities on private land would not be restricted
by any regulations under the Act, provided that there is no Federal
agency involvement in the activities. If actions on private property
require Federal funding, authorizations, or a Federal permit, the
Federal action agency must consult with us. For further discussion on
consultation requirements under section 7 of the Act, see the
``Available Conservation Measures'' section of this final rule.
Issue 2: One commenter questioned our authority to regulate
interstate
[[Page 71682]]
commerce, as related to this endangered species.
Our 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's prohibitions
to protect the listed Delhi Sands flower-loving fly (Rhaphiomidas
terminatus abdominalis). As with Sidalcea oregana var. calva, the Delhi
Sands flower-loving fly is endemic to only one State. Judge Wald held
that application of the Act's prohibition 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
applying the Act in that case prevented destructive interstate
competition and loss of biodiversity. Judge Henderson upheld protection
of the fly because doing so prevents harm to the ecosystem upon which
interstate commerce depends and regulates commercial development that
is part of interstate commerce.
The Federal Government also has the authority under the Property
Clause of the Constitution to protect this species. Sidalcea oregana
var. calva occurs on Federal land in the Wenatchee National Forest. If
this species were to become extinct, the diversity of plant life in the
Wenatchee National Forest would be diminished. 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).
Peer Review
In accordance with interagency policy published on July 1, 1994 (59
FR 34270), we solicited the expert opinions of 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 that was incorporated and is presented
in the final rule.
Summary of Factors Affecting the Species
Section 4 of the Act and the regulations (50 CFR part 424) issued
to implement the listing provisions of the Act set forth the procedures
for adding species to the Federal Lists. A species may be determined to
be an endangered or threatened species due to one or more of the five
factors described in section 4(a)(1) of the Act. These factors and
their applications to Sidalcea oregana (Nutt.) var. calva C.L.
Hitchcock (Wenatchee Mountains checker-mallow) are as follows:
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range.
All known sites and habitats for Sidalcea oregana var. calva have
undergone various alterations. Conversion of land to orchards or other
agricultural uses and rural residential development are thought to have
extirpated historical populations (Gamon 1987). Numerous houses already
exist at Camas Land, the site of the largest population, and two houses
have been built there since 1987 (T. Thomas, pers. obs. 1995). Current
threats to this population are posed by further subdivision for
residences and associated habitat modifications, such as alterations in
hydrology, increased nutrient loads into the meadow from septic
systems, introduction of non-native grasses, conversion of portions of
the meadow to agricultural uses including pasture land and gardens,
access road construction, and trampling by people and off-road vehicles
(Gamon 1987; T. Thomas, pers. obs. 1995; D. Wilderman, pers. comm.
1997).
Natural drainage channels within Camas Land have been altered to
direct water away from the primary wet meadow area for agricultural
purposes (Gamon 1987; R. Harrod, pers. comm. 1996; D. Wilderman, pers.
comm. 1997). Alterations in hydrology threaten the species by changing
the amount, timing, duration, and/or frequency of the water supply to
the habitat for the species. Most individuals of Sidalcea oregana var.
calva in the Camas Land meadow are associated with the drainage
channels or areas that retain moisture relatively longer (Gamon 1987).
Livestock occur in Camas Land, and the sheep, horses, and cows
trample vegetation, compact soils, and serve as vectors for introducing
non-native plant seeds either directly or indirectly through their
feed. Portions of the primary meadow have also been seeded to non-
native grasses to increase forage for livestock. In addition, non-
native grasses have been planted near residences for lawns and appear
to be encroaching into the primary meadow area (T. Thomas, pers. obs.
1995). These introduced grasses are rhizomatous (forming a thick layer
of matted roots), and tend to outcompete and, therefore, displace
native species for nutrients and water (R. Harrod, pers. comm. 1996).
Sidalcea oregana var. calva is generally absent from these areas except
for occasional individuals along the periphery, suggesting that the
introduced species are able to displace S. oregana var. calva (Gamon
1987).
The primary Camas Land meadow is used by recreationists, which has
had detrimental effects on the population of Sidalcea oregana var.
calva (Gamon 1987; D. Wilderman, pers. comm. 1997). People engaging in
a variety of recreational activities, including trailbike riding, bow-
hunting competitions, and camping, contribute to the species' decline
by trampling plants and compacting the soil. Trampling of S. oregana
var. calva plants has been documented (D. Wilderman, pers. comm. 1997).
Timber harvest has occurred throughout the general Camas Land area
(R. Harrod, pers. comm. 1996). Local ground disturbance associated with
timber harvest, such as log yarding and slash disposal, probably poses
a greater threat than tree removal (Gamon 1987) by crushing plants and
compacting the soil. Timber harvest may also have long-term effects on
the hydrology in the small watershed and poses a threat to the species
by increasing erosion and sedimentation in the wetlands where it occurs
and changing the patterns of surface and subsurface water runoff.
A large portion of the two largest populations of Sidalcea oregana
var. calva in Camas Land was adversely impacted by fire-suppression
activities associated with the Rat Creek and Hatchery Creek fires
during the fall of 1994 on the Wenatchee National Forest (Harrod 1994;
T. Thomas, pers. obs. 1995). During construction of a fire safety zone
in a small drainage flowing into the Camas Land Meadow, a bulldozer
destroyed several hundred S. oregana var. calva plants. The plants were
bladed and uprooted, the topsoil removed, and the site scraped to
mineral soil. During a visit to the disturbed site in May of 1995,
researchers observed no sprouts or seedlings of S. oregana var. calva
(T.
[[Page 71683]]
Thomas, pers. obs. 1995). The likelihood of recovery of S. oregana var.
calva within the disturbed portion of the population appears low (R.
Harrod, pers. comm. 1996).
A second population, at Mountain Home Meadow, was also adversely
impacted by fire-suppression activities associated with the Rat Creek
Fire during 1994 (Harrod 1994). A fire safety area was constructed in
the wetland supporting a population of Sidalcea oregana var. calva.
Blading of the area by a bulldozer destroyed approximately 50 percent
(more than 100 plants) of the population, disturbed the soil, and
altered the hydrology of this wet meadow. One year after the
disturbance, no S. oregana var. calva plants were observed at this
location (T. Thomas, pers. obs. 1995). The likelihood of recovery of
the destroyed portion of this population appears low (R. Harrod, pers.
comm. 1996).
The potential for forest fires is high in the east side ponderosa
pine and Douglas-fir forest type. Prior to 1900, historic fire
frequency in the forests east of the Cascade Crest was approximately 13
years, with fire essentially absent from 1900 to 1990 (Everett et al.
1997). With the reduction of fires during this century, the structure
of east-side forests has been altered with an increase in tree density
and development into multiple canopy layers. Because of the changes in
stand structure, these forests are highly susceptible to wildfire (Agee
1993). Because fires threatening private property and public structures
are suppressed, the likelihood for further direct disturbance to
Sidalcea oregana var. calva populations in the future remains high.
Fire may play a role in the maintenance of suitable habitat for S.
oregana var. calva (Gamon 1987), and fire suppression has probably
resulted in less suitable habitat (R. Harrod, pers. comm. 1996). In the
absence of fire, conifer recruitment and woody plant invasion may
reduce the amount of habitat suitable for S. oregana var. calva by
increasing competition for light, nutrients, and water. A significant
increase in vegetative growth due to fire suppression outside of the
immediate habitat for S. oregana var. calva may also adversely affect
habitat suitability for the species by reducing the surface runoff
within the small wetlands where it occurs.
Other current threats at Mountain Home Meadow, where the second
largest known population of Sidalcea oregana var. calva occurs, include
alteration of hydrology due to road construction, timber harvesting
activities, and inadvertent trampling of the small population by guests
at a nearby resort lodge. The hydrology of the site may be altered by
the main access road that borders the population on the west. Timber on
the ridge immediately west of the main access road was harvested in
1987. This timber was within 50 m (164 ft) of the population, and the
harvest temporarily modified the area's hydrology by increasing water
flow from the hillside directly into the plant's habitat. Timber was
also harvested from the ridge directly above and east of Mountain Home
Meadow during the summer of 1995, and this harvest may have modified
surface runoff (R. Harrod, pers. comm. 1996). Construction activities
and facilities maintenance at the lodge may also alter the site
hydrology and adversely impact the S. oregana var. calva population at
this location (Gamon 1987; T. Thomas, pers. obs. 1995).
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Seed of the full species Sidalcea oregana is collected by
horticulturists. Some populations are small enough that even limited
collecting pressure could have adverse impacts. S. oregana var. calva
is an attractive plant and may be sought for collection if its rarity
and population locations become well known. All perennial species in
the genus are considered attractive plants with horticultural potential
(Hitchcock and Cronquist 1961; Gamon 1987; Hill 1993). Wild-collected
seed of the species, S. oregana (no variety given), is available
through a seed exchange program offered by the international gardening
society North American Rock Garden Society (North American Rock Garden
Society 1996).
C. Disease or Predation
Large numbers of aphids have infested individuals of Sidalcea
oregana var. calva at the Camas Land and Mountain Home Meadow
populations (Gamon 1987). The effect of these aphids, or the
relationship of the aphids to S. oregana var. calva, is not known. In
1987, researchers observed that weevils had eaten the majority of the
seeds that had been produced (Gamon 1987); herbivory has also been
observed more recently (R. Harrod, pers. comm. 1996). Livestock,
especially sheep, have grazed the Camas Land meadow complex, and the
southeast portion of the meadow is currently grazed by horses. Whether
herbivory by livestock or wildlife has adversely impacted the S.
oregana var. calva population is unknown, as is the potential threat
herbivory may currently pose. Some grazing by horses and wildlife (deer
and elk) also has been observed, although the impact from grazing is
unknown (Gamon 1987; R. Harrod, pers. comm. 1996).
D. The Inadequacy of Existing Regulatory Mechanisms
Sidalcea oregana var. calva is included on the U.S. Forest Service
Region 6 Sensitive Plant List and is listed as endangered by the WDNR's
Natural Heritage Program (1994). The State of Washington has no State
Endangered Species Act, and therefore, the WDNR designation provides no
legal protection for this species.
The Wenatchee National Forest has developed a draft conservation
agreement with us for another sensitive plant species, Delphinium
viridescens, which would indirectly provide some measures for
conserving Sidalcea oregana var. calva at the three sites where the two
species occur together. Some protective mechanisms discussed in the
draft agreement have been implemented and may serve to promote the
recovery of S. oregana var. calva on Forest Service land. However, this
agreement has not been finalized, does not address all of the threats
to S. oregana var. calva, and is inadequate to protect and recover the
species throughout its range (Gamon 1987; J. Gamon, pers. comm. 1997).
Protection provided through this conservation agreement would not
extend to private or State-owned land, where most of the individual
plants occur, nor would it protect the species from alteration of
hydrology, rural residential development and associated impacts,
competition from non-native plants, fire and fire-suppression
activities, insect outbreaks, and random events. The numbers of S.
oregana var. calva plants are so low on Forest Service land that these
two populations may not be viable, and little opportunity exists for
genetic exchange between the Wenatchee National Forest populations and
the other Camas Land populations. The area where the two populations
occur is designated under the Northwest Forest Plan as matrix, which is
land that is available to harvest. A small portion of the area does
occur in a managed late-successional reserve, which provides some
protection by limiting some of the activities that may occur there. The
two populations on Forest Service land occur behind locked vehicle
gates, so they are afforded some measure of protection. However, foot
and bicycle traffic is permitted.
The wetland habitat of Sidalcea oregana var. calva is under the
jurisdiction of the U.S. Army Corps of
[[Page 71684]]
Engineers (Corps). Under section 404 of the Clean Water Act, the Corps
regulates the discharge of dredged or fill material into waters of the
United States, including wetlands. Section 404 requires project
proponents to obtain a permit from the Corps prior to undertaking
activities (e.g., grading, discharge of soil or other fill material)
that would result in the fill of wetlands under the Corps'
jurisdiction. Denial or restriction of an activity under section 404
can occur if the effects of the activity would have an adverse effect
on such things as municipal water supplies, shellfish beds and fishery
areas, wildlife, or recreational areas.
Generally, if a project falls below certain thresholds, such as the
fill of wetlands less than 0.13 ha (0.33 ac) under Nationwide Permit 26
(33 CFR 330.5(a)(26), the project is considered authorized. Projects
meeting the criteria for a nationwide permit are normally permitted
with minimal environmental review by the Corps.
Individual permits are required for the discharge of fill material
into wetlands above the thresholds established by the nationwide
permits. The review process for the issuance of individual permits is
more rigorous than for nationwide permits. Unlike nationwide permits,
for individual permit applications, an alternatives analysis and an
assessment of cumulative wetland impacts and a 30-day public review
period is required. Resulting permits may include special conditions
that require the avoidance or mitigation of environmental impacts. In
practice, the Corps rarely requires an individual permit when a project
would qualify for a nationwide permit, unless the project has
substantial or more than minimal impacts, or a species is listed as
threatened or endangered, or other significant resources might be
adversely affected by the proposed activity.
Three out of the five populations of Sidalcea oregana var. calva
are very small, two occupying habitat less than a couple of meters in
size, and one occupying a site of no more than 0.2 ha (0.05 ac). Any
one of these three populations could conceivably be eliminated if the
wetlands they occupy were covered by fill or discharged material. The
remaining two populations could lose a large number of individuals, as
well as have the hydrology of its habitat adversely modified by
discharge of fill or dredged material. Because many activities that
could cause modification or destruction of the wetland habitats of S.
oregana var. calva could be authorized by nationwide permit, section
404 of the Clean Water Act provides insufficient protection of the
species. Following listing of the species, however, section 404 could
provide greater protection.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
Fewer than 5 individuals are present at each of 2 sites on Forest
Service land, and fewer than 30 individuals are present at 1 of the
sites on private land. When populations reach such low numbers of
individuals, their vulnerability to extirpation from human-caused and
random events increases (Gilpin and Soule 1986; Given 1994; Schemske et
al. 1994). An outbreak of insects, soil disturbance from livestock
grazing, or a fire during the growing season of Sidalcea oregana var.
calva could extirpate these small populations or reduce the habitat
suitability for this species. The small, isolated nature of these
populations may also have an adverse effect on pollinator activity,
seed dispersal, and gene flow. Small populations may lose a large
amount of genetic variability because of genetic drift and, therefore,
have a reduced likelihood of long-term viability (Soule 1980, as cited
in Lesica and Allendorf 1992). The Mountain Home Meadow population has
fewer than 100 plants and is also vulnerable to many of these same
threats. An additional threat to the Mountain Home Meadow population
from an adjacent gravel road is dust, which may hinder pollination of
the plants nearest the road (Gamon 1987).
We have carefully assessed the best scientific and commercial
information available concerning the past, present, and future threats
faced by this species in making this rule final. Threats to Sidalcea
oregana var. calva, including alterations of wetland hydrology,
development of property for residential and agricultural use, habitat
modification or destruction from fire-suppression and related
activities, competition with native and non-native plant species, and
impacts from recreational activities, imperil the continued existence
of this species. Much of the habitat where this species occurs is
suitable for development and for modification by logging or agriculture
and is unprotected from these threats. The small populations of this
species are particularly vulnerable to extirpation from random natural
events. Sidalcea oregana var. calva is known from only five
populations. The most likely random natural threat to S. oregana var.
calva is wildfires, which remain a concern in the east-side Cascade
forest ecosystem. Two of these populations have fewer than 5
individuals each, while 1 population has fewer than 30 individuals.
Another population has about 100 individuals remaining after being
reduced 50 percent by fire-suppression activities. The largest
population has about 2,470 individuals. Sidalcea oregana var. calva is
in danger of extinction throughout its range and, therefore, meets the
Act's definition of endangered. Because of the high potential for these
threats, if realized, to result in the extinction of S. oregana var.
calva, the preferred action is to list S. oregana var. calva as
endangered. Other alternatives to this action were considered but not
preferred; not listing S. oregana var. calva or listing it as
threatened would not be in accordance with the Act.
Critical Habitat
In the proposed rule, we indicated that designation of critical
habitat was not prudent for Sidalcea oregana var. calva 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 Sidalcea oregana var. calva would be prudent.
Due to the small number of populations, Sidalcea oregana var. calva
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 S. oregana var. calva 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
[[Page 71685]]
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 Sidalcea oregana var. calva.
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 Sidalcea oregana var. calva has
allow us to concentrate our limited resources on higher priority
critical habitat (including court ordered designations) and other
listing actions, while allowing us to put in place protections needed
for the conservation of S. oregana var. calva without further delay.
However, because we have successfully reduced, although not eliminated,
the backlog of other listing actions, we anticipate in FY 2000 and
beyond giving higher priority to critical habitat designation,
including designations deferred pursuant to the Listing Priority
Guidance, such as the designation for this species, than we have in
recent fiscal years.
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 Sidalcea oregana var.
calva as soon as feasible, considering our workload priorities.
Unfortunately, for the immediate future, most of Region 1's listing
budget must be directed to complying with numerous court orders and
settlement agreements, as well as due and overdue final listing
determinations (like the one issue in this case).
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Endangered Species Act include recognition,
recovery actions, requirements for Federal protection, and prohibitions
against certain activities. Recognition through listing can encourage
and result in public awareness and conservation actions by Federal,
State, and local agencies, private organizations, 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. Funding may be available through section 6 of the Act for the
State to conduct recovery activities. The protection required by
Federal agencies and prohibitions against certain activities involving
listed plants are discussed, in part, below.
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 endangered or threatened and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with us on any action that is likely to jeopardize the continued
existence of a species proposed for listing or result in destruction or
adverse modification of proposed critical habitat. If a species is
listed subsequently, section 7(a)(2) of the Act requires Federal
agencies to ensure that activities they authorize, fund, or carry out
are not likely to jeopardize the continued existence of a listed
species or destroy or adversely modify its critical habitat, if
designated. If a Federal action may affect a listed species or its
critical habitat, the responsible Federal agency must enter into formal
consultation with us, pursuant to section 7(a)(2) of the Act.
Two of the five known populations of Sidalcea oregana var. calva
are found entirely on Federal lands managed by the Wenatchee National
Forest, while a third population lies partially within its boundaries.
The U.S. Forest Service would be required to consult with us if any
actions such as timber harvesting, road construction, fire-suppression/
management, or grazing activities may affect S. oregana var. calva.
Other Federal agency actions that may require conference and/or
consultation include Army Corps of Engineers authorization of projects
affecting wetlands and other waters under section 404 of the Clean
Water Act (33 U.S.C. 1344 et seq.), Environmental Protection Agency
authorization of discharges under the National Pollutant Discharge
Elimination System, Natural Resource Conservation Service projects, and
Department of Housing and Urban Development and Veterans Administration
mortgage programs (Federal Home Administration loans). In addition,
sections 2(c)(1) and 7(a)(1) of the Act require Federal agencies to
utilize their authorities in furtherance of the purposes of the Act to
carry out conservation programs for endangered and threatened species.
Listing of this plant as endangered would provide for development
of a recovery plan for the plant. Such a plan would identify both State
and Federal efforts for conservation of the plant and establish a
framework for agencies to coordinate activities and cooperate with each
other in conservation efforts. The plan would set recovery priorities
and describe site-specific management actions necessary to achieve
conservation and survival of the plant. Additionally, pursuant to
section 6 of the Act, we would be able to grant funds to affected
States for management actions promoting the protection and recovery of
this species.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered
plants. All trade prohibitions of section 9 (a)(2) of the Act,
implemented by 50 CFR 17.61 for endangered plants, would apply. These
[[Page 71686]]
prohibitions, in part, make it illegal for any person subject to the
jurisdiction of the United States to import or export, transport in
interstate or foreign commerce in the course of a commercial activity,
sell or offer for sale in interstate or foreign commerce, or remove
such plants from areas under Federal jurisdiction. In addition, the Act
prohibits the malicious damage or destruction on areas under Federal
jurisdiction and the removal, cutting, digging up, damaging, or
destroying of such plants in knowing violation of any State law or
regulation, or in the course of a violation of State criminal trespass
law. Certain exceptions to the prohibitions apply to our agents 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 plant species 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 be
sought or issued because the species is not common in cultivation or in
the wild.
As published in the Federal Register on July 1, 1994 (59 FR 34272),
our policy 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. Two of the
five known populations of Sidalcea oregana var. calva are found
entirely on Federal lands managed by the Wenatchee National Forest,
while a third population lies partially within its boundaries.
Collection, damage, or destruction of this species on Federal lands is
prohibited, although in appropriate cases a Federal permit could be
issued to allow collection for scientific or recovery purposes. Such
activities on non-Federal land would constitute a violation of section
9 of the Act if activities were conducted in knowing violation of
Washington State law or regulations, or in the course of a violation of
Washington State criminal trespass law.
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;
(2) 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 will constitute a
violation of section 9 should be directed to the Supervisor of the
Western Washington 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 N.E. 11th Avenue, Portland, Oregon 97232-4181
(telephone 503/231-6241).
National Environmental Policy Act
We have determined that an environmental assessment and
environmental impact statement, as defined under the authority of the
National Environmental Policy Act of 1969, need not be prepared in
connection with regulations adopted pursuant to section 4(a) of the
Act. We published a notice outlining our reasons for this determination
in the Federal Register on October 25, 1983 (48 FR 49244).
Paperwork Reduction Act
This rule does not contain any new collections of information other
than those already approved under the Paperwork Reduction Act, 44
U.S.C. 3501 et seq., and assigned Office of Management and Budget
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 control number. For additional
information concerning permit and associated requirements for
endangered plant species, see 50 CFR 17.62 and 17.63.
This rule has not been reviewed by the Office of Management and
Budget under C.O.12866.
References Cited
A complete list of all references cited herein, as well as others,
is available upon request from the Western Washington Office (see
ADDRESSES section).
Author
The primary author of this final rule is Ted Thomas, Western
Washington Office of the North Pacific Coast Ecoregion (see ADDRESSES
section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. Amend section 17.12(h) by adding the following, in alphabetical
order under FLOWERING PLANTS, to the List of Endangered and Threatened
Plants:
Sec. 17.12 Endangered and threatened plants
* * * * *
(h) * * *
[[Page 71687]]
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Species
-------------------------------------------------------- Historic range Family Status When Critical Special
Scientific name Common name listed habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Sidalcea oregana var. calva...... Wenatchee Mountains U.S.A. (WA)........ Malvaceae--Mallow.. E 673 NA NA
checker-mallow.
* * * * * * *
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Dated: December 8, 1999.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 99-33100 Filed 12-21-99; 8:45 am]
BILLING CODE 4310-55-P