[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]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                        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.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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