[Federal Register Volume 65, Number 54 (Monday, March 20, 2000)]
[Rules and Regulations]
[Pages 14888-14898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-6835]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE81


Endangered and Threatened Wildlife and Plants; Final Rule for 
Endangered Status for Four Plants From South Central Coastal California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have 
determined endangered status for Cirsium loncholepis (La Graciosa 
thistle), Eriodictyon capitatum (Lompoc yerba santa), Hemizonia 
increscens ssp. villosa (Gaviota tarplant), and Lupinus nipomensis 
(Nipomo Mesa lupine), pursuant to the Endangered Species Act (Act) of 
1973, as amended. These plants are in danger of extinction because 
their habitats have been significantly reduced over time by 
residential, commercial, agricultural, and oil and gas development. 
Their remaining habitats have been adversely affected by development, 
military activities, alteration of natural fire cycles, and the 
invasion of nonnative plant species. The limited distribution and small 
population sizes of these four species also make them more vulnerable 
to extinction from naturally occurring catastrophic events. Existing 
regulations do not provide adequate protection to prevent further 
losses from ongoing activities. This rule will extend the Act's 
protection to these plants.

EFFECTIVE DATE: This rule is effective April 19, 2000.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the Ventura Fish and 
Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, 
Suite B, Ventura, California 93003.

FOR FURTHER INFORMATION CONTACT: Tim Thomas, Botanist, at the above 
address (telephone 805/644-1766; facsimile 805/644-3958).

SUPPLEMENTARY INFORMATION:

Background

    Cirsium loncholepis (La Graciosa thistle), Eriodictyon capitatum 
(Lompoc yerba santa), Hemizonia increscens ssp. villosa (Gaviota 
tarplant), and Lupinus nipomensis (Nipomo Mesa lupine) occur along the 
south central California coast. They are restricted to a narrow area in 
northern and western Santa Barbara County, southern San Luis Obispo 
County, and southern Monterey County.
    These species occur in sensitive, declining or altered habitats 
including central dune scrub, central maritime chaparral, valley 
needlegrass grassland, coastal freshwater wetlands, and southern bishop 
pine forest (Holland 1986; Schoenherr 1992). Two of these habitats, 
central dune scrub and coastal freshwater wetlands, are notable for 
their geological and biological value. The largest coastal dune system 
in California, the Guadalupe Dune region, is located in southern San 
Luis Obispo County near Guadalupe, where approximately 47 square 
kilometers (sq km) (18 sq miles (mi)) of active dunes create a series 
of back dune lakes. The Department of the Interior added the Guadalupe 
Dune region to the National Natural Landmark system in 1980, 
recognizing the biological and physical diversity of the area 
(Schoenherr 1992).
    Lupinus nipomensis is wholly restricted to these dunes. Cirsium 
loncholepis is also restricted to these dunes with the exception of a 
small disjunct population in southern Monterey County (California 
Natural Diversity Data Base (CNDDB) 1998). The coastal dune habitats 
are highly disturbed, and all habitat remnants have been invaded by 
nonnative plant species. Invasive weeds such as Ehrharta calycina 
(veldt grass), Ammophila arenaria (European beach grass), Carpobrotus 
edulis (iceplant), and Mesembryanthemum crystalinum (crystalline 
iceplant) are serious threats to the natural ecological processes of 
coastal sandy habitats and to the viability of L. nipomensis and C. 
loncholepis (Smith 1976; Zedler and Scheid 1988; Schoenherr 1992).
    Inland from the active dunes, remnants of prehistoric uplifted 
dunes have formed a weakly cemented sandstone that has weathered to 
produce a sandy, extremely well drained, and nearly infertile soil 
(Davis et al. 1988). This substrate has a limited distribution, 
occurring on the following mesas in the area: Nipomo Mesa, Casmalia 
Hills, San Antonio Terrace, Burton Mesa, Lompoc Terrace, and Purisima 
Hills. The habitat that occurs on these sand hills has been called the 
central coast maritime chaparral and has been the focus of several 
studies (Ferren et al. 1984; Davis et al. 1988; Philbrick and Odion 
1988; Davis et al. 1989; Odion et al. 1992). Two of the locations of 
Eriodictyon capitatum occur in maritime chaparral. Seven local endemic 
plant species, and at least 16 other uncommon plant species, are also 
components of this habitat. This community type is an exceptional 
biological resource due to the concentration of rare plants found 
within it, but most of it has been converted to other land uses or 
degraded by weed invasion and habitat fragmentation (Davis et al. 1988; 
Odion et al. 1992). Central coast maritime chaparral is considered 
threatened and sensitive by the California Department of Fish and 
Game's (CDFG) Natural Heritage Division (Holland 1986). Southern bishop 
pine (Pinus muricata) forest is scattered in the Purisima Hills and 
intergrades with the central coast maritime chaparral (Holland 1986).
    Hemizonia increscens ssp. villosa is associated with the rare 
needlegrass grasslands, composed of native purple needlegrass (Nassella 
spp.). The habitat intergrades with coastal sage scrub made up of 
Artemisia californica (California sagebrush), Baccharis pilularis 
(coyote bush), and Hazardia squarrosa (sawtooth golden bush).

Discussion of the Four Species

Cirsium loncholepis

    Cirsium loncholepis (La Graciosa thistle) was collected by Eastwood 
in 1906 near the village site of La Graciosa (razed in 1877 and the 
current site of Orcutt) in San Luis Obispo County (Smith 1976). Cirsium 
loncholepis is a short-lived (1 to 2 years), spreading, mound-like or 
erect, and often fleshy, spiny member of the sunflower family 
(Asteraceae). Plants are from 1 to 10 decimeters (dm) (4 to 40 inches 
(in.)) in height, with one to several stems. The leaves are wavy-
margined. The lower leaves are 10 to 30 centimeters (cm) (4 to 12 in.) 
long with spiny petioles and usually deeply lobed with secondary lobes 
or teeth. The leaf base of the middle and upper leaves forms short, 
spiny wings along the petiole. The flower heads are in tight clusters 
at the tips of the stems. Flowering heads are 2 to 4 cm (0.8 to 1.6 
in.) wide. The corollas are 25 to 30 millimeters (mm) (1 to 1.2 in.) 
long and more or less white with a purplish tube containing purple 
anthers. This species closely resembles Cirsium brevistylum (Indian 
thistle), a taller plant with the upper portion covered with cobwebby 
hairs. The leaves of C. brevistylum are shallowly lobed, whereas the 
leaves of C. loncholepis are deeply lobed with secondary lobes (Keil 
and Turner 1993).

[[Page 14889]]

    Cirsium loncholepis is largely restricted to back dune and coastal 
wetlands of southern San Luis Obispo County and northern Santa Barbara 
County, from the Pismo Dunes lake area and south historically to the 
Santa Ynez River. The Guadalupe Dune complex, in which the majority of 
the species occurs, extends inland only up to 3.2 kilometers (km) (2 
miles (mi)). Deflation areas behind the foredunes often intersect the 
water table, creating wetlands and back dune lakes. Cirsium loncholepis 
is found in wet soils surrounding the dune lakes and in the moist dune 
swales, where it is often associated with Juncus spp. (rush), Scirpus 
spp. (tule), Salix spp. (willow), Toxicodendron diversilobum (poison 
oak), Distichlis spicata (salt grass), and coyote brush (Hendrickson 
1990). The historic distribution of the species included extensive 
areas in the Orcutt region that have been converted from wetland 
habitat to agricultural uses or otherwise developed. Large populations, 
similar to an existing one at the mouth of the Santa Maria River, 
likely occurred in these areas prior to their conversion. As early as 
1950, Smith studied the lack of suitable habitat for C. loncholepis in 
the vicinity of La Graciosa (Smith 1976). Historic maps show the area 
covered with extensive wetlands, which no longer exist (Hendrickson 
1990). One small population has been reported from moist openings in 
coastal scrub habitat in a coastal drainage in southern Monterey County 
(Vern Yadon, pers. comm. 1998).
    There are 17 known locations for Cirsium loncholepis. The 
populations in the dune systems are small and isolated, and show a 
reduced reproductive vigor (Hendrickson 1990). Seven of the populations 
are reported to have fewer than 60 plants each (CNDDB 1998). Only one 
population has had a substantial number of plants, fluctuating between 
6,000 and 54,000 individuals. However, it is located at the mouth of 
the Santa Maria River in the floodplain, where it was significantly 
disrupted by flooding in 1998 (John Chesnut, private consultant, in 
litt. 1998). Surveys in 1998 of five known population locations found 
that all of them were much reduced or apparently extirpated since 
surveys were conducted in 1990 (J. Chesnut, in litt. 1998). The 
declines apparently are due to the change in habitat as riparian 
willows and other vegetation invade the areas that previously supported 
this wet meadow plant (J. Chesnut, in litt. 1998).
    Ongoing threats to this species include groundwater pumping, oil 
field development, and competition from nonnative plants (Hendrickson 
1990; CDFG 1992). Cattle grazing in the riparian habitat at the mouth 
of the Santa Maria River may reduce the competition from other species 
(Hendrickson 1990), but the long-term effects of livestock use on the 
habitat are unknown. All but one population of C. loncholepis are on 
private lands. A small population occurs in the Los Padres National 
Forest in southern Monterey County. The trend for C. loncholepis has 
been one of decline (CDFG 1992; CNDDB 1998). The State listed this 
species as threatened in 1990 (CDFG 1992).

Eriodictyon capitatum

    Eriodictyon capitatum (Lompoc yerba santa) was collected by Hoffman 
in 1932 near Lompoc growing under bishop pine and described the 
following year (Eastwood 1933). Eriodictyon capitatum is a shrub in the 
waterleaf family (Hydrophyllaceae) with sticky stems up to 3 meters (m) 
(10 feet (ft)) tall. The sticky leaves are narrowly linear. The head-
like inflorescence has lavender corollas that are 6 to 15 mm (0.2 to 
0.6 in.) long. It is distinguished from related species by its narrow, 
entire leaves and its head-like inflorescence (Halse 1993).
    Eriodictyon capitatum occurs in maritime chaparral with Dendromecon 
rigida (bush poppy), Quercus berberidifolia, Q. parvula (scrub oaks), 
and Ceanothus cuneatus (buck brush) and in southern bishop pine forests 
that intergrade with chaparral Arctostaphylos spp. (manzanita) and 
Salvia mellifera (black sage) (Smith 1983). The four known locations of 
the E. capitatum occur in western Santa Barbara County. Two of these 
locations, composed of three groups, are on Vandenberg Air Force Base 
(VAFB). The other two locations are on private land in the oilfields 
south of Orcutt (comprising one group) and at the western end of the 
Santa Ynez Mountains (made up of three groups). Based on isozyme 
analysis, Elam (1994) determined that two of the VAFB groups are 
apparently uniclonal, a single plant composed of many stems produced by 
the vegetative spread of the root system. All of the Santa Ynez 
Mountains colonies, and the remaining group at VAFB, were multiclonal. 
The Orcutt location was not studied due to inaccessibility. The three 
Santa Ynez Mountains groups ranged from 11 to 20 clones each. The three 
VAFB groups ranged from 1 to 18 clones each. Eriodictyon capitatum is 
self-incompatible (i.e., it requires pollen from genetically different 
plants to produce seed), and its fruits appear to be parasitized by an 
insect (Elam 1994). A study of one of the apparently uniclonal groups 
at VAFB showed that E. capitatum successfully resprouted from the base 
of the plant after a prescribed fire. However, several stems died, and 
no seedling recruitment occurred; a uniclonal, self-incompatible plant 
would be expected to produce little or no seed (Jacks et al. 1984).
    Fire management practices, invasive nonnative plant species, low 
seed productivity, and naturally occurring catastrophic events pose 
significant threats to the long-term survival of this species. None of 
the colonies are actively protected. Eriodictyon capitatum was listed 
as rare by the State of California in 1979 (CDFG 1992).

Hemizonia increscens ssp. villosa

    Hemizonia increscens ssp. villosa (Gaviota tarplant) is a member of 
the sunflower family. Tanowitz (1982) described this plant from 
collected material, as well as a specimen gathered in 1902 by Elmer 
near Gaviota, 24 km (15 mi) west of Santa Barbara. Hemizonia increscens 
ssp. villosa is a yellow-flowered, variable gray-green, soft, hairy 
annual that is 3 to 9 dm (12 to 35 in.) tall with stems branching near 
the base. The lower leaves are 5 to 8.6 cm (2 to 3.4 in.) long. The 
inflorescence is rounded to flat-topped with mostly 13-ray flowers and 
18 to 31 disk flowers that are usually sterile. Two other subspecies, 
H. increscens ssp. increscens and H. increscens ssp. foliosa, differ 
from H. increscens ssp. villosa by their stiff-bristly, deep-green 
foliage; however, chemical composition is the best means to 
differentiate these species (obtained from a glycone exudate, which can 
be tested easily with thin layer chromatography) (Keil 1993; Katherine 
Rindlaub, Biological Consulting, in litt. 1998). Occasional 
observations of 13-rayed H. increscens ssp. increscens are reported as 
H. increscens ssp. villosa (K. Rindlaub, in litt. 1998).
    Hemizonia increscens ssp. villosa has a highly localized 
distribution in western Santa Barbara County, where it is associated 
with needlegrass grasslands dominated by Avena spp. (a nonnative wild 
oat), and occasional native purple needlegrass, that intergrade with 
coastal sage scrub composed of California sagebrush, coyote bush, and 
sawtooth golden bush. Its habitat lies on an uplifted, narrow marine 
terrace 46 to 60 m (150 to 200 ft) above sea level. The plant is 
restricted to Conception and Milpitas-Positas soils, which consist of 
acidic, fine, sandy loams (All American Pipeline Company (AAPC) 1990). 
A subsurface clay layer, 2.5 to 90 cm (1 to 36 in.) deep, may serve as 
a reservoir of

[[Page 14890]]

soil moisture in an area otherwise characterized by summer drought 
(Howald 1989). Hemizonia increscens ssp. villosa consistently occurs 
where the depth to clay is only 2.5 to 5 cm (1 to 2 in.) (K. Rindlaub, 
in litt. 1998).
    Hemizonia increscens ssp. villosa is known only from a narrow, 3.5-
km (2.2-mi) long band of coastal terrace situated between the Santa 
Ynez Mountains and the ocean near Gaviota. Within this band, one 
scattered population occurs on a total of about 24 hectares (ha) (60 
acres (ac)) of habitat. The patches are often separated by no more than 
100 m (330 ft) and represent one extended population (Howald 1989). 
Other pockets of Conception and Milpitas-Positas soils occur along the 
coast to the west and east of Gaviota, where the vegetation continues 
to be altered by development, cattle grazing, and farming. Repeated 
extensive surveys have been conducted without positive verification of 
H. increscens ssp. villosa in these areas (Howald 1989). As is typical 
of annual plant species, the number of individuals present from 1 year 
to the next varies dramatically, depending on climatic conditions and 
other factors. In some years, patches may contain few to no individuals 
(Howald 1989). In 1995 and 1997, the taxon was not abundant at any 
location (K. Rindlaub, pers. comm. 1995, in litt. 1998).
    The narrow coastal terrace is bisected lengthwise by Highway 101, a 
railroad, and several pipelines. Most of the habitat for Hemizonia 
increscens ssp. villosa lies on the north side of the highway on 
private lands owned by the petroleum industry. A few colonies occur on 
the south side of Highway 101 on land owned by the California 
Department of Parks and Recreation.
    Hemizonia increscens ssp. villosa is threatened by destruction of 
individual plants, habitat loss, and degradation from the development 
of oil and gas facilities, including pipelines, and competition with 
nonnative weeds. The trend for this taxon has been one of decline (CDFG 
1992). Hemizonia increscens ssp. villosa was listed as endangered by 
the State of California in 1990 (CDFG 1992).

Lupinus nipomensis

    Lupinus nipomensis (Nipomo mesa lupine) was collected in 1937 by 
Eastwood and Howell from Nipomo Mesa, San Luis Obispo County; Eastwood 
subsequently published a description of the species (Eastwood 1939). 
Although Munz and Keck (1959) submerged L. nipomensis as a synonym of 
L. concinnus, other authors, including the most recent treatment, 
recognize L. nipomensis as a species (Abrams 1944; Riggins 1993). 
Lupinus nipomensis is an annual member of the pea family (Fabaceae). It 
is 1 to 2 dm (4 to 8 in.) tall and hairy with decumbent stems. The 
leaves, with 5 to 7 leaflets, are 10 to 15 mm (0.4 to 0.6 in.) long and 
5 to 6 mm (0.2 to 0.23 in.) wide. The inflorescence is not whorled, and 
the flowers are 6 to 7 mm (0.23 to 0.3 in.) long with pink petals. 
Lupinus nipomensis is distinguished from the related L. concinnus by 
its decumbent inflorescence, succulent leaflets, lack of axillary 
flowers, and restriction to sand dune habitat (Walters and Walters 
1988).
    Lupinus nipomensis grows in stabilized back dune habitat of the 
Guadalupe dunes in the southwestern corner of San Luis Obispo County. 
The plant occurs as 1 extended population made up of 7 colonies with 
fewer than 700 plants. The small patches are spread over 2.4 km (1.5 
mi). At least three historical localities have been extirpated, 
including its type locality (CDFG 1992; CNDDB 1998). The majority of 
the habitat is considered degraded by either physical disturbance or 
invasion by nonnative weedy species (Walters and Walters 1988). Even 
high-quality habitat is adversely affected by impacts from nonnative 
invasive species. Under the best conditions, the species occurs in dune 
swales with a higher diversity of native annuals and widely spaced 
individuals of Ericameria ericoides (mock heather), a small native 
subshrub. In both types of habitat, L. nipomensis requires pockets of 
bare sand, suggesting a low tolerance for competition (Walters and 
Walters 1988).
    All known occurrences of Lupinus nipomensis are on private lands 
and remain unprotected. The primary threat to the species is the 
uncontrolled invasion of aggressive nonnative weeds, especially veldt 
grass, and the subsequent displacement of the species. The plant was 
listed by the State as endangered in 1987, and the trend has been one 
of decline (CDFG 1992).

Previous Federal Action

    Federal action on these plants began as a result of section 12 of 
the Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et 
seq.), which directed the Secretary of the Smithsonian Institution to 
prepare a report on those plants considered to be endangered, 
threatened, or extinct in the United States. This report (House 
Document No. 94-51) was presented to Congress on January 9, 1975, and 
included Cirsium loncholepis and Eriodictyon capitatum as endangered. 
We published a notice in the July 1, 1975, Federal Register (40 FR 
27823) of our acceptance of the Smithsonian Institution report as a 
petition within the context of section 4(c)(2) (petition provisions are 
now found in section 4(b)(3)) of the Act, and our intention to review 
the status of the reported plant species.
    On June 16, 1976, we published a proposal in the Federal Register 
(41 FR 24523) to determine approximately 1,700 vascular plant species 
to be endangered species pursuant to section 4 of the Act. Cirsium 
loncholepis and Eriodictyon capitatum were included in this Federal 
Register publication. General comments received in relation to the 1976 
proposal were summarized in an April 26, 1978, Federal Register 
publication (43 FR 17909). The Endangered Species Act Amendments of 
1978 required that all proposals over 2 years old be withdrawn. A 1-
year grace period was given to those proposals already more than 2 
years old. In the December 10, 1979, Federal Register (44 FR 70796), we 
published a notice of withdrawal of the June 16, 1976, proposal, along 
with four other proposals that had expired.
    We published an updated Notice of Review (NOR) for plants on 
December 15, 1980 (45 FR 82480). This notice included Cirsium 
loncholepis, Eriodictyon capitatum, and Lupinus nipomensis as category 
1 candidate species. Category 1 candidates were formerly defined as 
species for which we had on file substantial information on biological 
vulnerability and threats to support preparation of listing proposals, 
but issuance of a proposed rule was precluded by other listing 
activities of higher priority. On November 28, 1983, we published a 
supplement to the NOR in the Federal Register (48 FR 53640), in which 
C. loncholepis and L. nipomensis were included as category 2 
candidates. Category 2 formerly included species for which information 
in our possession indicated that proposing to list as endangered or 
threatened was possibly appropriate, but for which sufficient data on 
biological vulnerability and threats were not available to support a 
proposed rule.
    The plant NOR was again revised on September 27, 1985 (50 FR 
39526). In this notice, Eriodictyon capitatum was included as a 
category 1 candidate, and Cirsium loncholepis and Lupinus nipomensis 
remained category 2 candidates. On February 21, 1990 (55 FR 6184), and 
September 30, 1993 (58 FR 51144), revised NORs were published that 
included C. loncholepis, E. capitatum, Hemizonia increscens ssp. 
villosa, and L. nipomensis as category 1

[[Page 14891]]

candidates. On February 28, 1996, we published an NOR in the Federal 
Register (61 FR 7596) that discontinued the designation of category 2 
species as candidates. That notice included as candidates only those 
species meeting the former definition of category 1, and included the 
four species in this rule. They maintained candidate status in the NORs 
published on September 19, 1997 (62 FR 49398), and October 15, 1999 (64 
FR 57534).
    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 
Cirsium loncholepis, Eriodictyon capitatum, Hemizonia increscens ssp. 
villosa, and Lupinus nipomensis, 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 March 30, 1998, a proposed 
rule to list Cirsium loncholepis, Eriodictyon capitatum, Hemizonia 
increscens ssp. villosa, and Lupinus nipomensis as endangered was 
published in the Federal Register (63 FR 15164).
    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. This final rule is a Priority 2 action 
and is being completed in accordance with the current Listing Priority 
Guidance.
    We have updated this rule to reflect any changes in information 
concerning distribution, status, and threats since the publication of 
the proposed rule and to incorporate information obtained through the 
public comment period. This additional information did not alter our 
decision to list these species.

Summary of Comments and Recommendations

    In the March 30, 1998, proposed rule, we requested interested 
parties to submit comments or information that might contribute to the 
final listing determination for these four plant species. We sent 
announcements of the proposed rule to appropriate Federal and State 
agencies, county and local governments, scientific organizations, and 
other interested parties, and requested comments. During the public 
comment period, nine written comments were received. Eight of the 
commenters provided additional data and information concerning the 
threats, biology, and ecology of the subject species. We evaluated this 
information and incorporated it into the final determination, as 
appropriate. A single issue raised by one commenter that is relevant to 
the listing of the plant species is summarized as follows, along with 
our response:
    Issue: The Federal Government, and hence the U.S. Fish and Wildlife 
Service, does not have the authority to list a species found in only 
one State, and we exceeded the scope of the Federal commerce power 
under the Commerce Clause of Article I, section 8 of the U.S. 
Constitution.
    Our Response: The Federal Government has the authority under the 
Commerce Clause of the U.S. Constitution to protect these 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 the species in this rule, 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 Cirsium loncholepis occurring in 
the Los Padres National Forest. If this species were to become extinct 
or extirpated, the diversity of plant life in the Los Padres 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

    We solicited formal scientific peer review of the proposal in 
accordance with our July 1, 1994, Interagency Cooperative Policy for 
Peer Review (59 FR 34270). We requested three individuals who possess 
expertise in botany and/or conservation biology to review the proposed 
rule by the close of the comment period. We received comments from two 
of the three reviewers within the comment period. Both concurred with 
our position on factors relating to the taxonomy of the species and the 
biological and ecological information. One provided additional 
information on threats. We considered their comments and incorporated 
the additional information into the final rule.

Summary of Factors Affecting the Species

    Section 4 of the Act and regulations (50 CFR part 424) issued to 
implement the listing provisions of the Act set forth the procedures 
for adding species to the Federal Lists. A species may be determined to 
be an endangered or threatened species due to one or more of the five 
factors described in section 4(a)(1) of the Act. These factors and 
their application to Cirsium loncholepis Petrak (La Graciosa thistle), 
Eriodictyon capitatum Eastw. (Lompoc yerba santa), Hemizonia increscens 
ssp. villosa B.D. Tanowitz (Gaviota tarplant), and Lupinus nipomensis 
Eastw. (Nipomo Mesa lupine) are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. Habitat fragmentation and 
alteration of species composition and vegetation structure threaten the 
long-term survival of all of the species in this rule. These species 
have extremely limited natural distributions (Eriodictyon capitatum and 
Hemizonia increscens ssp. villosa)

[[Page 14892]]

or reduced distributions resulting from loss of habitat (Cirsium 
loncholepis and Lupinus nipomensis).
    Eriodictyon capitatum is associated with the central maritime 
chaparral and bishop pine forest, which are threatened habitat types 
with limited distribution and rich in plant species of limited 
distribution (Holland 1986). Most of the central maritime chaparral has 
been converted to a variety of land uses, and degraded by development, 
weed invasion, habitat fragmentation, and other factors (Hoover 1970; 
Davis et al. 1988; Odion et al. 1992; CNDDB 1998). Iceplant invasion 
threatens to convert the maritime chaparral into a habitat dominated by 
mats of the exotic succulent (Odion et al. 1992). Iceplant was 
documented as an invasive in habitat occupied by E. capitatum following 
a prescribed fire (Jacks et al. 1984). Veldt grass, seeded in 
controlled burns and used for soil stabilization at VAFB, has become 
widespread and naturalized (Smith 1976; Jones and Stokes Associates 
1997). Comparison of historic and current photographs of habitat 
similar to that occupied by E. capitatum show no veldt grass in 1973, 
whereas in 1997, the same site was dominated by veldt grass (Chris 
Gillespie, VAFB, pers. comm. 1997).
    Department of Defense base closures across the nation have resulted 
in the relocation of activities to those bases that remain operational. 
Facility maintenance and development for military and private 
commercial purposes planned at VAFB are likely to result in additional 
loss and alteration of habitat occupied by Eriodictyon capitatum (Al 
Nadel, VAFB, pers. comm. 1993).
    With considerable competition for use of the commercial spaceport 
on the base by 25 to 30 companies and launches anticipated to occur 
every 2 weeks (C. Gillespie, pers. comm. 1995), missile launch 
operations could adversely affect habitats surrounding launch 
facilities. For example, in 1993, a missile was destroyed shortly after 
launching at VAFB, and a series of brush fires caused by burning rocket 
fuel burned more than 162 ha (400 ac). Large fragments of metal blasted 
downward toward the ground caused physical damage to the habitat 
(Wallace 1993). In September 1997, a 200-ha (500-ac) fire and a 600-ha 
(1,500-ac) fire burned near occupied habitat of Eriodictyon capitatum 
(Los Angeles Times 1997a). Fire containment lines constructed by 
bulldozers in the vicinity of the species were observed after the fire 
(J. Watkins, pers. comm. 1997). On November 1, 1997, a 495-ha (1,225-
ac) fire that was accidentally set by an explosives disposal team at 
VAFB was partially contained by back-burning an area containing a 
population of E. capitatum (Los Angeles Times 1997b). In addition, 
nonnaturally occurring fires facilitate the invasion of aggressive 
nonnative plant species into the maritime chaparral habitats. This 
occurrence will likely become more of a problem under the existing 
prescribed burn program and suppression activities (see factor E 
below).
    Hemizonia increscens ssp. villosa occurs within a narrow 3.6-km 
(2.25-mi) band of coastal terrace grassland about 24 ha (60 ac) in 
extent. About 40 percent of the coastal terrace habitat within the 
known range of H. increscens ssp. villosa has been destroyed, altered, 
or fragmented by the construction of oil and gas facilities and 
pipelines. Projects during the past 5 years within the taxon's habitat 
include the installation of a water pipeline for the relocated Vista 
del Mar school, the proposed construction of the Pacific and Mariposa 
pipelines (oil/gas), and the Molino drilling station. The Molino parcel 
contains the single largest continuous population of H. increscens ssp. 
villosa (M. Meyer, pers. comm. 1996). Maintenance of pipelines and 
facilities will continue to disturb the species' habitat and encourage 
the establishment of invasive weed species.
    Because the Santa Ynez Mountains occur only 0.4 km (0.25 mi) inland 
from the coastline, the relatively flat coastal terrace forms a natural 
corridor for any utility project passing between Gaviota Pass to the 
west and Santa Barbara to the east. All future projects that pass 
through this corridor are very likely to adversely affect habitat for 
the Hemizonia increscens ssp. villosa by further destroying, degrading, 
and fragmenting habitat. The highest quality habitat remains 
unprotected and lies within this pipeline corridor. In an attempt to 
mitigate habitat loss, a preserve area has been established by the oil 
industry within the corridor. However, it protects less than 5 percent 
of the habitat. Because invasive species must be managed intensively to 
prevent their dominance, whether this management area can sustain a 
colony of H. increscens ssp. villosa without ongoing maintenance is 
questionable (K. Rindlaub, pers. comm. 1995). Additional impacts to H. 
increscens ssp. villosa may result from a proposed bikepath on State 
Park property that will extend throughout most of the plant's range. 
The proposed bikepath will create a linear zone of disturbance that 
will act as a corridor for weed dispersal into pristine H. increscens 
ssp. villosa habitat (S. Treanor, State Park Superintendent, in litt. 
1998). Also, as the oil and gas industry abandons some of the 
facilities in Gaviota, proposed development options include 
recreational vehicle campgrounds, golf courses, a convention center, 
and residential housing (K. Rindlaub, in litt. 1998).
    The Guadalupe Dunes, which contain the only known population of 
Lupinus nipomensis and the majority of the populations of Cirsium 
loncholepis, have been extensively developed and altered for petroleum 
extraction (Rindlaub et.al. 1985). About one-third of the historic 
occurrences of C. loncholepis have been extirpated (CDFG 1992). While 
the future extent of development and habitat alteration is unknown at 
this time, continued energy-related operations, including maintenance 
activities, hazardous waste cleanup, and other commercial development 
that result in additional habitat modification, remain a predominant 
threat (CDFG 1992). Ground water extraction in the Guadalupe Dunes and 
vicinity is thought to have diminished the total area of suitable 
habitat of C. loncholepis by lowering the water table and drying the 
wetlands (Smith 1976; Hendrickson 1990; CDFG 1992). Hydrological 
alterations remain a significant threat to this taxon (CDFG 1992). At 
least 3 historic populations of L. nipomensis, including the type 
locality, have been extirpated. Development, along with invasion by 
nonnative plant species (see factor E below), are the primary threats 
to this species (CDFG 1992).
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. Overutilization is not currently known to be a 
factor for these plants. However, simply listing a species could 
attract commercial or scientific interest, both legal and illegal, 
which can threaten the species through unauthorized and uncontrolled 
collection. Unrestricted collecting for scientific or horticultural 
purposes, and impacts from excessive visits by individuals interested 
in seeing rare plants could result in a reduction of plant numbers and 
seed production. These species have such small populations that even 
limited collecting pressure could have significant impacts.
    Vandalism is also a concern for these species. For example, 
approximately one-third of a Lupinus nipomensis colony was destroyed by 
bulldozer activity during road construction to provide staff access at 
the Oceano State Vehicular Recreation Area, in spite of staff knowledge 
of the location and rarity of this species (J. Chesnut, in litt. 1998).

[[Page 14893]]

    C. Disease or predation. Disease is not known to be a factor 
affecting any of the species in this rule. Herbivory by pocket gophers 
(Thomomys bottae) has been documented to consume whole colonies of 
Lupinus nipomensis and is considered a major threat (Walters and 
Walters 1988). Veldt grass, a food source for pocket gophers, was 
observed to be increasing during the course of a 3-year monitoring 
program for L. nipomensis and is forming pure stands in the back dune 
habitat of L. nipomensis (Walters and Walters 1988; J. Chesnut, in 
litt. 1998). Veldt grass provides a year-round food source, thus 
creating artificially high densities of gophers and increased predation 
pressure upon L. nipomensis.
    Several invertebrate species have been documented as predators of 
Lupinus nipomensis, reducing the vigor and seed production of this 
species. The most significant predator is an anthomyid fly (Hylemya 
lupini), whose larvae burrow into the terminal inflorescence, reducing 
seed production and sometimes killing the entire plant (Walters and 
Walters 1988). Other invertebrate predators noted are mites, the 
caterpillars of the common painted lady butterfly (Vanessa cardui), a 
noctuid moth that feeds on leaves (family Notuidae), a tent-building 
microlepidopteran larva (family Pyralidae) that causes leaf damage, and 
a lupine blue butterfly larva (Plebejus lupini monticola) that feeds on 
seed pods (Walters and Walters 1988). Predation by these species does 
not threaten L. nipomensis in and of itself, but because of the limited 
range and small population size, predation in combination with other 
threats could adversely affect population viability.
    Approximately 50 percent of the disk and ray achenes of Hemizonia 
increscens ssp. villosa have been observed to be infested by an 
unidentified flower beetle (K. Rindlaub, in litt. 1998).
    Cattle grazing occurs within the habitats of Cirsium loncholepis 
and Hemizonia increscens ssp. villosa. Low levels of grazing may 
enhance the opportunities for both species to propagate successfully, 
as it may serve to reduce competition from nonnative species. However, 
recent evidence indicates that heavy grazing has affected individuals 
of H. increscens ssp. villosa by reducing their stature and the number 
of seeds that can be produced. Cattle grazing in the area west of the 
oil and gas facility appears to have facilitated the displacement of H. 
increscens ssp. villosa and favored the dominance of H. fasciculata, a 
common native tarplant (K. Rindlaub, in litt. 1998). Similar 
observations were made in the Guadalupe dunes and along the Santa Maria 
River where C. loncholepis was adversely affected (Hendrickson 1990).
    No known predation threats affect Eriodictyon capitatum.
    D. The inadequacy of existing regulatory mechanisms. The California 
Fish and Game Commission has listed Eriodictyon capitatum as rare, 
Cirsium loncholepis as threatened, and Hemizonia increscens ssp. 
villosa and Lupinus nipomensis as endangered under the Native Plant 
Protection Act (NPPA) (chapter 1.5 sec. 1900 et seq. of the California 
Fish and Game Code), and the California Endangered Species Act (CESA) 
(chapter 1.5 sec. 2050 et seq.). California Senate Bill 879, passed in 
1997 and effective January 1, 1998, requires individuals to obtain a 
section 2081(b) permit from CDFG to take a listed species incidental to 
otherwise lawful activities, and requires that all impacts be fully 
mitigated and all measures be capable of successful implementation. 
These requirements have not been tested as applied to State-listed 
plants; it will be several years before their effectiveness can be 
evaluated. In the past, attempts to mitigate rare plant populations 
have often failed, largely due to inadequate consideration of a 
species' biological needs and inadequate protection and management of 
the mitigation site (Howald 1993).
    The California Environmental Quality Act (CEQA) requires a full 
disclosure of the potential environmental impacts of proposed projects. 
The public agency with primary authority or jurisdiction over the 
project is designated as the lead agency and is responsible for 
conducting a review of the project and consulting with other agencies 
concerned about the resources affected by the project. Section 15065 of 
the CEQA Guidelines requires a finding of significance if a project has 
the potential to ``reduce the number or restrict the range of a rare or 
endangered plant or animal.'' Once significant effects are identified, 
the lead agency has the option to require mitigation for effects 
through changes in the project or to decide that overriding 
considerations make mitigation infeasible. In the latter case, projects 
may be approved that cause significant environmental damage, such as 
destruction of State-listed species. Protection of listed species 
through CEQA, therefore, is dependent upon the discretion of the agency 
involved.
    State agencies reviewing requests for large development projects 
are required by CEQA to conduct surveys of the biological resources of 
a project site. Most public documents such as environmental impact 
reports are prepared by the project proponent for the State agency. 
Sensitive species located during surveys are to be reported to the 
CNDDB, which is maintained by the CDFG Natural Heritage Division. If, 
however, the project proponent considers the information proprietary, 
consulting biologists may not report to the CNDDB (Carl Wishner, 
Envicom Consulting, Agoura, California, pers. comm. 1999).
    One of the species in this rule, Cirsium loncholepis, could 
potentially be affected by projects requiring a permit under section 
404 of the Clean Water Act (CWA). Perennial freshwater emergent marshes 
and back dune wetlands are generally small and scattered, and treated 
as isolated wetlands or waters of the United States for regulatory 
purposes by the U.S. Army Corps of Engineers (Corps) under section 404. 
However, the CWA by itself does not protect C. loncholepis. For 
example, Nationwide Permit No. 26 (33 CFR part 330 Appendix B (26)) was 
established by the Corps to facilitate issuance of permits for 
discharge of fill into wetlands up to 1.2 ha (3 ac). For project 
proposals falling under this permit, the Corps seldom withholds 
authorization unless a listed threatened or endangered species' 
continued existence would likely be jeopardized by the proposed action. 
Current section 404 regulations require an applicant to obtain an 
individual permit to fill isolated wetlands or waters larger than 1.2 
ha (3 ac). In either case, candidate species receive no special 
consideration. Additionally and equally important, the upland 
watersheds that contribute significantly to the hydrology of marshes 
are not provided any direct protection under section 404. Alterations 
of hydrology resulting from groundwater pumping are thought to pose the 
most likely and serious threat to C. loncholepis. No permit is required 
under the CWA for groundwater pumping. As a consequence, the habitat of 
C. loncholepis receives insufficient protection under section 404.
    Although several public agencies manage lands with occurrences of 
these and other sensitive, threatened and endangered species, none of 
those agencies have specific management plans for the species in this 
rule. Serious threats to the habitats of all of the plants in this rule 
persist and are not currently being addressed with active management 
(see factor E below). The CDFG prepared an unpublished management plan 
for the State-listed Cirsium loncholepis (Morey 1990), but

[[Page 14894]]

its recommendations have not yet been implemented.
    Mitigation performed to satisfy CEQA requirements for Hemizonia 
increscens ssp. villosa has included salvaging seedbank and topsoil for 
transfer to a habitat creation site, seeding of areas disturbed by 
facility and pipeline construction, and enhancement of areas with low 
density of this taxon (AAPC 1990). These experimental mitigation 
measures are in progress, and the long-term success of treatments will 
not be known for years. As of 1997, none of the sites showed success 
(K. Rindlaub, in litt. 1998). Hemizonia increscens ssp. villosa does 
not compete well with other annual species, and long-term survival of 
relocated plants requires intensive maintenance to control nonnative 
weeds. These experimental mitigation measures focus on reintroducing 
the plant and not necessarily reestablishing the other elements of the 
habitat that would maintain the plant in perpetuity. If the original 
habitat has been destroyed and mitigation fails, the loss of the 
resource is irretrievable. Too little is known to predict the success 
of any mitigation measures that involve moving or creating habitat. 
Minimal soil disturbance and shrub removal, included as mitigation 
measures that enhanced H. increscens ssp. villosa germination, in the 
past may now result in colonization by veldt grass (K. Rindlaub, in 
litt. 1998).
    The Los Padres National Forest is aware of the presence of Cirsium 
loncholepis on their land. No projects planned at this time will affect 
this species. Vandenburg Air Force Base (VAFB) does not have any 
planned projects that may affect Eriodictyon capitatum. However, with 
the listing of these species, both agencies will be required to consult 
with us on future projects.
    E. Other natural or manmade factors affecting their continued 
existence. Other threats to the species in this rule include 
displacement by nonnative weeds, altered fire regimes, facility 
accidents by oil companies or VAFB, small population size, and loss of 
reproductive vigor. The most severe threat to the species in this rule 
is the active invasion and subsequent modification or conversion of 
habitat and displacement of native species by aggressive nonnative 
weeds such as European beach grass, iceplant, veldt grass, and 
crystalline iceplant (Davis et al. 1988; Zedler and Schied 1988; Morey 
1989; Walters and Walters 1988; Odion et al. 1992; CNDDB 1998; J. 
Chesnut, in litt. 1998). Current research and management approaches are 
inadequate to provide control of the problem of nonnative plant 
invasions (Hobbs and Humphries 1995; Schierenbeck 1995). The California 
Exotic Pest Plant Council (CalEPPC) has compiled a list of the exotic 
pest plants of greatest ecological concern in California. The most 
invasive wildland pest plants that threaten native plants and natural 
habitats have been placed on two lists: list A-1 (widespread pest 
plants) and list A-2 (regional pest plants). European beach grass and 
iceplant are on list A-1, and veldt grass is on list A-2 (CalEPPC 
1994). All of the habitats for the species in this rule are fragmented 
and dissected by roads and pathways that are the principal corridors 
for introduction of weedy species (Odion et al. 1992).
    Iceplant, widely disseminated in the feces of deer and rabbits, 
tends to displace native plant species, particularly after fire or 
mechanical disturbance. Iceplant has been observed invading native 
vegetation occupied by Eriodictyon capitatum after a prescribed fire, 
resulting in a documented increase in iceplant cover from negligible to 
26 percent 3 years after the fire. This increase was attributed to 
post-fire seedling production of over 7,800 iceplant seedlings per ha 
(2,800 per ac) the year after the fire, with a survivorship of over 70 
percent 3 years later (Zedler and Schied 1988). After establishment, 
each plant can grow to over 6 m (18 ft) in diameter (Vivrette 1993), 
virtually replacing all other vegetation. The Air Force is currently 
conducting prescribed burns on VAFB for fuels management without a 
program to control the subsequent invasion of weedy species (J. 
Watkins, pers. comm. 1997). An effort is made occasionally to apply 
herbicides to a burn area; however, such an effort is ineffective 
without followup measures to ensure the control of the invasive 
species. Because fire is inevitable in natural habitats, and prescribed 
burns are utilized for hazard fuels reduction, iceplant and other 
invasive weed invasions will continue to degrade habitat and adversely 
affect E. capitatum, Hemizonia increscens ssp. villosa, and Lupinus 
nipomensis.
    Other invasive plants, including Australian saltbush (Atriplex 
semibaccata), veldt grass, and wild oats threaten Hemizonia increscens 
ssp. villosa by displacement and the buildup of thatch (accumulated 
dead leaves and stems). Hemizonia increscens ssp. villosa requires open 
habitat in which to germinate and become established. Thatch from the 
nonnative grass species that dominate the habitat effectively prevents 
its establishment (K. Rindlaub, pers. comm. 1995).
    In addition to affecting Hemizonia increscens ssp. villosa, veldt 
grass is actively invading habitat occupied by Eriodictyon capitatum 
and Lupinus nipomensis and is becoming a significant threat (Zedler and 
Schied 1988; Morey 1989; Walters and Walters 1988; Bonnie Walters, 
California Polytechnic State University, pers. comm. 1997; J. Chesnut, 
in litt. 1998; K. Rindlaub, in litt. 1998). Veldt grass prefers sandy 
soils and has the potential to persist for long periods of time. This 
nonnative grass has a mass of roots that captures the majority of the 
soil moisture, effectively outcompeting the native vegetation and 
dominating habitats as a monoculture (David Chipping, California Native 
Plant Society, pers. comm. 1997).
    Used to control nonnatives, herbicides may inadvertently harm these 
species. For example, Cirsium loncholepis at Mud Lake was destroyed by 
herbicide application on poison oak (Hendrickson 1990; CNDDB 1998). 
However, the significance of herbicide application as a threat to the 
survival of C. loncholepis or the other three species is unknown.
    Eriodictyon capitatum and Hemizonia increscens ssp. villosa occupy 
habitats that experience periodic fires. Wildfires are an important 
component of natural ecosystems in California wildland habitats, and 
suppression of natural fires facilitates ecosystem degradation 
(Schoenherr 1992; Keeley 1995). All recent fires in the central 
maritime chaparral have been human-caused, resulting from arson, 
prescribed management, or accidental ignition (Philbrick and Odion 
1988). The highly fragmented nature of the remaining chaparral habitat 
has ended the occurrence of large wildfires that burn under natural 
conditions in the coastal chaparral areas considered in this rule. 
Wildfire frequencies and intensities are not known, but estimates of 
historic burn intervals exceed 30 years. Wildfires naturally occur 
during high wind events that force the fire quickly through a stand of 
fuel, resulting in short burn durations and generally cooler ground 
temperatures. The use of prescribed burning as a management technique 
is restricted to periods when environmental conditions are favorable to 
preventing the spread of escaped fire, thus preventing a normal 
wildfire situation. Prescribed fire behavior does not mimic natural 
conditions, since low wind speed is required for control of the fire. 
Low wind speed causes an increase in the duration and intensity of the 
fire and results in higher mortality of seeds in the soil and reduced 
post-fire species diversity (Odion et al. 1992; Keeley

[[Page 14895]]

1995). Additionally, with the higher mortality of plants and seeds from 
a more intense fire, burned habitats are more susceptible to the rapid 
invasion by nonnative species that alter the type and structure of the 
plant community and, thus, future fuels for fires (Odion et al. 1992).
    Petroleum-processing plant catastrophes are rare events, but have 
the potential to threaten the long-term survival of Hemizonia 
increscens ssp. villosa and Lupinus nipomensis, which have the smallest 
distributions of the species in this rule. All known individuals of H. 
increscens ssp. villosa are contained within a 3.2-km (2-mi) radius, 
and all known locations for L. nipomensis occur within a 1.2-km (0.75-
mi) radius, of oil and gas refineries and associated storage 
facilities. The oil and gas facility, managed by at least 12 operating 
companies to consolidate pipelines and treating plants, is near the 
center of the distribution of H. increscens ssp. villosa. The Santa 
Maria TASCO refinery and storage facilities are near the center of the 
distribution of L. nipomensis. These facilities occur in a tectonically 
complex and active region that is historically characterized by locally 
moderate to high earthquake activity, which can result in facility 
catastrophes (AAPC 1990). In the event of a facility catastrophe, the 
resulting habitat modification could destroy populations, causing the 
extinction of species with such extremely limited distribution.
    All the species in this rule are vulnerable to naturally occurring 
events, such as failure to produce viable seed and catastrophic 
incidents. For example, Eriodictyon capitatum is self-incompatible and 
produces few viable seeds. In two colonies of this species, each 
presumably composed of a single genetic unit, virtually no seed 
production occurs (Elam 1994). Seeds of Cirsium loncholepis in small 
back dune populations have been shown to be of limited viability 
(Hendrickson 1990). Because of the small population sizes, the four 
species' vulnerability is heightened by natural events, such as 
drought, flooding, fires, earthquakes, outbreaks of insects or disease, 
or other catastrophic events, that could destroy a significant 
percentage of the individuals of these species.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by these species in making this rule final. The habitats for 
these species have been much reduced due to residential, commercial, 
agricultural, and oil and gas development. These species continue to 
face threats from development, military activities, alteration of 
natural fire cycles, and invasion of nonnative species. The limited 
habitat for the four species and their small population sizes make 
Cirsium loncholepis, Eriodictyon capitatum, Hemizonia increscens ssp. 
villosa, and Lupinus nipomensis particularly vulnerable to extinction 
from naturally occurring events. Existing regulations do not provide 
adequate protection to prevent further losses; many actions that 
adversely affect these species and their habitats are ongoing. Because 
the four plant species are in danger of extinction throughout all or a 
significant portion of their ranges, they fit the Act's definition of 
endangered under the Act.

Critical Habitat

    Critical habitat is defined in section 3, paragraph (5)(A) of the 
Act as the specific areas within the geographical area occupied by a 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features essential to the 
conservation of the species and that may require special management 
considerations or protection; and specific areas outside the 
geographical area occupied by a species at the time it is listed in 
accordance with the provisions of section 4 of the Act, upon a 
determination by the Secretary that such areas are essential for the 
conservation of the species. ``Conservation'' means the use of all 
methods and procedures needed to bring the species to the point at 
which listing under the Act is no longer necessary.
    Critical habitat designation, by definition, directly affects only 
Federal agency actions through consultation under section 7(a)(2) of 
the Act. Section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of a listed species or destroy or 
adversely modify its critical habitat.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, we designate critical habitat at the time the species 
is determined to be endangered or threatened. Our regulations (50 CFR 
424.12(a)(1)) state that designation of critical habitat is not prudent 
when one or both of the following situations exist--(1) the species is 
threatened by taking or other activity and the identification of 
critical habitat can be expected to increase the degree of threat to 
the species or (2) such designation of critical habitat would not be 
beneficial to the species.
    In the proposed rule, we indicated that designation of critical 
habitat for these four species was not prudent because we believed it 
would not provide any additional benefit beyond that provided through 
listing as endangered, since most of the historical ranges of these 
plants occur on private land.
    We find that designation of critical habitat is prudent for Cirsium 
loncholepis, Eriodictyon capitatum, Hemizonia increscens ssp. villosa, 
and Lupinus nipomensis. 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 believe that the 
designation of critical habitat for these four species would be 
prudent.
    Due to the small number of populations, Cirsium loncholepis, 
Eriodictyon capitatum, Hemizonia increscens ssp. villosa, and Lupinus 
nipomensis are 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 and have not found specific evidence of taking, 
vandalism, collection, or trade of these species or any similarly 
situated species. Consequently, consistent with applicable regulations 
(50 CFR 424.12(a)(1)(i)) and recent case law, we do not expect that the 
identification of critical habitat will increase the degree of threat 
to this species of taking or other human activity.
    In the absence of a finding that critical habitat would increase 
threats to a species, if any benefits would result from critical 
habitat designation, then a prudent finding is warranted. In the case 
of these species, some benefits may result from 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 these 
species would not be likely to change the section 7 consultation 
outcome because an action

[[Page 14896]]

that destroys or adversely modifies such critical habitat would also be 
likely to result in jeopardy to the species, in some instances, section 
7 consultation might be triggered only if critical habitat is 
designated. Examples could include unoccupied habitat or occupied 
habitat that may become unoccupied in the future. Some educational or 
informational benefits may also result from designating critical 
habitat. Therefore, we find that critical habitat is prudent for 
Cirsium loncholepis, Eriodictyon capitatum, Hemizonia increscens ssp. 
villosa, and Lupinus nipomensis.
    As explained in detail in the Final Listing Priority Guidance for 
FY2000 (64 FR 57114), our listing budget is currently insufficient to 
allow us to immediately complete all of the listing actions required by 
the Act. 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 these 
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. Deferral of the critical habitat 
designation for these species will allow us to concentrate our limited 
resources on higher priority critical habitat and other listing 
actions, while allowing us to put in place protections needed for the 
conservation of C. loncholepis, E. capitatum, H. increscens ssp. 
villosa, and L. nipomensis without further delay. We will develop a 
proposal to designate critical habitat for Cirsium loncholepis, 
Eriodictyon capitatum, Hemizonia increscens ssp. villosa, and Lupinus 
nipomensis 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.

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 practices. Recognition through listing encourages and 
results 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 of 
Federal agencies and the 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, under section 7(a)(2) of the Act.
    VAFB and the U.S. Forest Service will be required to consult with 
us on activities that may affect federally listed plant species found 
on their lands through the section 7 consultation process. While no 
activities are known at this time, future activities may affect 
populations of or habitat for Cirsium loncholepis and Eriodictyon 
capitatum. The Corps might become involved with C. loncholepis through 
its permitting authority as described under section 404 of the CWA. As 
previously discussed, nationwide or individual permits cannot be issued 
when a federally listed endangered or threatened species would be 
affected by a proposed project without first completing a section 7 
consultation with us. 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 these plants as endangered would provide for development 
of recovery plans for the plants. Such plans would identify both State 
and Federal efforts for conservation of the plants and establish a 
framework for agencies to coordinate activities and cooperate with each 
other in conservation efforts. The plans would set recovery priorities 
and describe site-specific management actions necessary to achieve 
conservation and survival of the plants. 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 
these species.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
plants. All prohibitions of section 9(a)(2) of the Act, implemented by 
50 CFR 17.61 for endangered plants, would apply. These prohibitions, in 
part, make it illegal for any person subject to the jurisdiction of the 
United States to import or export, transport in interstate or foreign 
commerce in the course of a commercial activity, sell or offer for sale 
in interstate or foreign commerce, or remove such plants from areas 
under Federal jurisdiction. In addition, the Act prohibits the 
malicious damage or destruction of such plants on areas under Federal 
jurisdiction and the removal, cutting, digging up, or damaging or 
destroying of such plants on any other area 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 these species are not in cultivation or common 
in the wild. 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; facsimile 
503/231-6243).
    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

[[Page 14897]]

section 9 of the Act. The intent of this policy is to increase public 
awareness of the effect of the listing on proposed and ongoing 
activities within a species' range. We believe that, based upon the 
best available information, activities on private lands that do not 
require Federal authorization and do not involve Federal funding, such 
as grazing management, agricultural conversions, wetland and riparian 
habitat modification (not including filling of wetlands), flood and 
erosion control, residential development, road construction, pesticide/
herbicide application, and pipelines or utility lines crossing suitable 
habitat, conducted in accordance with State law would not likely result 
in a violation of section 9.
    We believe that the following actions could 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) Malicious destruction of the species on Federal lands; and
    (3) Interstate or foreign commerce and import/export without 
previously obtaining an appropriate permit. Permits to conduct 
activities are available for purposes of scientific research and 
enhancement of propagation or survival of the species.
    Questions regarding whether specific activities would constitute a 
violation of section 9 should be directed to the Field Supervisor of 
the Ventura Fish and Wildlife Office (see ADDRESSES section).

National Environmental Policy Act

    We have determined that environmental assessments and environmental 
impact statements, 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 permits and associated requirements for 
endangered species, see 50 CFR 17.62 and 17.63.
    This rule has not been reviewed by the Office of Management and 
Budget under Executive Order 12866.

References Cited

    A complete list of all references cited herein, as well as others, 
is available upon request from the Ventura Fish and Wildlife Office 
(see ADDRESSES section).
    Author:
The primary author of this final rule is Tim Thomas, Ventura Fish and 
Wildlife Office (see ADDRESSES section).

List of Subjects 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. 
4201-4205; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.


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


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name                Common name                                                                               habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                    *                  *                *                  *                  *                  *                  *
Cirsium loncholepis..............  La Graciosa thistle.  U.S.A. (CA)........  Asteraceae.........  E                       691           NA           NA
 
                    *                  *                *                  *                  *                  *                  *
Eriodictyon capitatum............  Lompoc yerba santa..  U.S.A. (CA)........  Hydrophyllaceae....  E                       691           NA           NA
 
                    *                  *                *                  *                  *                  *                  *
Hemizonia increscens ssp. villosa  Gaviota tarplant....  U.S.A. (CA)........  Asteraceae.........  E                       691           NA           NA
 
                    *                  *                *                  *                  *                  *                  *
Lupinus nipomensis...............  Nipomo Mesa lupine..  U.S.A. (CA)........  Fabaceae...........  E                       691           NA           NA
 
                    *                  *                *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------



[[Page 14898]]

    Dated: March 13, 2000.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 00-6835 Filed 3-15-00; 4:31 pm]
BILLING CODE 4310-55-P