[Federal Register Volume 66, Number 173 (Thursday, September 6, 2001)]
[Rules and Regulations]
[Pages 46536-46548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-22341]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH05


Endangered and Threatened Wildlife and Plants; Final Designation 
of Critical Habitat 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), designate 
critical habitat for the plant Sidalcea oregana var. calva (Wenatchee 
Mountains checker-mallow), pursuant to the Endangered Species Act of 
1973, as amended (Act). A total of approximately 2,484 hectares (6,135 
acres) in Chelan County, Washington, is designated as critical habitat.
    Critical habitat identifies specific areas that have the physical 
and biological features that are essential to the conservation of a 
listed species, and that may require special management considerations 
or protection. The primary constituent elements for Sidalcea oregana 
var. calva are those habitat components that are essential for its 
primary biological needs such as reproduction and dispersal. Critical 
habitat for Sidalcea oregana var. calva includes those areas possessing 
one or more of the primary constituent elements.
    Located on Federal, State, and private lands, this critical habitat 
designation provides additional protection under section 7 of the Act 
with regard to activities that require Federal agency action. Section 7 
of the Act requires Federal agencies to ensure that actions

[[Page 46537]]

they authorize, fund, or carry out are not likely to destroy or 
adversely modify designated critical habitat. Section 4 of the Act 
requires us to consider economic and other impacts of specifying any 
particular area as critical habitat. We solicited data and comments 
from the public on all aspects of the proposed rule and economic 
analysis.

DATES: This rule becomes effective on October 9, 2001.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, will be 
available for public inspection, by appointment, during normal business 
hours at the U.S. Fish and Wildlife Service, Western Washington Office, 
Ecological Services, 510 Desmond Drive SE, Lacey, WA 98503.

FOR FURTHER INFORMATION CONTACT: Ken Berg, Manager, Western Washington 
Office (see ADDRESSES section) (telephone 360/753-9440; facsimile 360/
753-9518).

SUPPLEMENTARY INFORMATION:

Background

    Sidalcea oregana var. calva, the Wenatchee Mountains checker-
mallow, is known to occur at six sites (populations) only in the mid-
elevation wetlands and moist meadows of the Wenatchee Mountains of 
central Washington. The plant was first collected in 1893 by Sandberg 
and Leiburg from the Icicle Creek area, near Leavenworth, and from wet 
meadows near Peshastin, both in Chelan County. The type specimen 
collected by Hitchcock in 1951 was from Camas Land in Chelan County 
(Gamon 1987). The plant communities where the species is found are 
usually associated with meadows that have surface water or saturated 
soils during the spring and early summer. The species may also be found 
in open conifer forests dominated by Pinus ponderosa (ponderosa pine) 
and Pseudotsuga menziesii (Douglas-fir), and on the margins of shrub 
and hardwood thickets adjacent to seeps, springs, or small drainages. 
Soils are primarily composed of silt loams and clay loams, with a high 
percentage content of organic material, that are poorly drained.
    A member of the mallow family (Malvaceae), Sidalcea oregana var. 
calva is a herbaceous perennial with a stout taproot that branches at 
the root crown giving rise to several stems. Plants range in height 
from 20 to 150 centimeters (cm) (8 to 60 inches (in.)). Plants vary 
from glabrous (lacking hairs and glands) to pubescent (hairy) or 
stellate (with star-shaped hairs) below, and finely stellate above. 
Flower clusters with one to many stalked flowers are arranged singly 
along a common stem. The flowers have pink petals 1 to 2 cm (0.4 to 0.8 
in.) long, and 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. These hairs are 
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 last half 
of July. Fruits are ripe in August. The species reproduces only from 
seed and, based on examination of seed capsules, the production of seed 
appears to be high (Gamon 1987). The somewhat clumped distribution of 
mature Sidalcea oregana var. calva plants suggests that seed dispersal 
is restricted to the areas near mature plants, unless the seeds are 
moved by animals or transported by water.
    The physical and biological habitat features essential to the 
conservation of Sidalcea oregana var. calva include open meadows with 
surface water or saturated upper soil profiles in the spring and early 
summer and maintaining the hydrologic processes on which these areas 
depend; open conifer forests dominated by ponderosa pine and Douglas-
fir; and the margins of shrub and hardwood thickets. All of these 
habitats have surface water or saturated soils well into the early 
summer. Elevations range from 488 to 1,000 meters (m) (1,600 to 3,300 
feet (ft)). The species is generally found on flats or benches, but may 
also occur in small ravines and occasionally on gently sloping uplands.
    Concentrations of Sidalcea oregana var. calva are found in the 
wetter portions of open-forest moist-meadow habitat, in slight 
topographic depressions, on the perimeter of shrub and hardwood 
thickets dominated by quaking aspen (Populus tremuloides), and along 
permanent or intermittent streams in sparsely forested draws. 
Frequently associated plant species include quaking aspen, black 
hawthorn (Crataegus douglasii), common snowberry (Symphoricarpos 
albus), serviceberry (Amelanchier alnifolia), few-flowered peavine 
(Lathyrus pauciflorus), northern mule's-ear (Wyethia amplexicaulis), 
sticky purple geranium (Geranium viscosissimum), western bistort 
(Polygonum bistortoides), leafy aster (Aster foliaceus), Watson's 
willow-herb (Epilobium watsonii), false hellebore (Veratrum 
californica), and rudbeckia (Rudbeckia occidentalis) (Washington 
Department of Natural Resources (WDNR) 2000). One-half of the Sidalcea 
oregana var. calva populations are found in association with Delphinium 
viridescens (Wenatchee larkspur), a former Federal category 1 candidate 
plant species. The latter species was removed from candidate status on 
February 28, 1996 (61 FR 7610), because it was found to be more 
abundant or widespread than previously believed.
    During the summer of 1999, a sixth population was discovered on 
private property in Pendleton Canyon, an area burned and opened up by 
the Tyee Fire of 1994. This location is less than 8 kilometers (km) (5 
miles (mi)) from the Camas Meadow population. While the discovery of 
the population occurred prior to the December 22, 2001 (64 FR 71680), 
listing of the species, we did not become aware of the discovery until 
after the publication date. This newly discovered population is 
included in the designation of critical habitat for the species.
    The wetland and moist meadow complex at Camas Meadows, an area 
managed as a Natural Area Preserve (NAP) by the WDNR, contains the 
largest population of Sidalcea oregana var. calva. The Camas Meadow NAP 
includes approximately 539 hectares (ha) (1,333 acres (ac)) (WDNR 
2000), and is located in the rural/wildland interface about 16 km (10 
mi) south of Leavenworth, Washington. An estimated 3,300 Sidalcea 
oregana var. calva individuals occur there. Low-density, rural 
residential home sites have been developed adjacent to the NAP. Also, 
the Camas Meadows Bible Camp has occupied the southern perimeter of the 
meadow since the late 1940s, and the U.S. Forest Service (Forest 
Service) administers properties surrounding the NAP.
    Another population is located north of the Camas Meadow NAP, on 
land administered by WDNR, and has approximately 30 individual plants. 
At the time the final listing rule was published (64 FR 71680), this 
population occurred on private land. The private landowners have since 
traded this land to the State of Washington.
    In addition to these two populations of Sidalcea oregana var. 
calva, two other populations of Sidalcea oregana var. calva are known 
to be present on private lands. One population, of about 200 
individuals, is located at the Mountain Home Resort. The second 
population is located in Pendleton Canyon, and consists of about 60 
plants. The other two known populations are located on Forest Service 
lands,

[[Page 46538]]

containing less than 10 individual plants combined. The combined number 
of individual plants for all six populations is approximately 3,600.
    The primary threats to Sidalcea oregana var. calva include habitat 
fragmentation and destruction due to alterations of hydrology, rural 
residential development and associated impacts, conversion of native 
wetlands to orchards and other agricultural uses, competition from 
native and non-native plants, recreation, seed and plant collection, 
and fire suppression and associated activities. 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.

Previous Federal Action

    Federal action on Sidalcea oregana var. calva began when we 
published an updated Notice of Review (NOR) for plants, published in 
the Federal Register on December 15, 1980 (45 FR 82480). This notice 
included Sidalcea oregana var. calva as a category 1 candidate species. 
Category 1 candidates were defined as those taxa for which we had 
sufficient information on the biological vulnerability and threats to 
support preparation of listing rules. The NOR, 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 available information indicated that a proposal to list 
as endangered or threatened was possibly appropriate, but for which 
persuasive data on biological vulnerability and threats were not 
sufficient to support a proposed rule.
    Notices of Review published on February 21, 1990 (55 FR 6184), and 
September 30, 1993 (58 FR 51144), identified Sidalcea oregana var. 
calva as a category 1 candidate species. Upon publication of the 
February 28, 1996, Notice of Review of Plant and Animal Taxa that are 
Candidates for Listing as Endangered or Threatened Species (61 FR 
7596), we stopped using the category designations and simply 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.
    On August 1, 1997, we published the proposed rule to list Sidalcea 
oregana var. calva as an endangered species (62 FR 41328). The final 
determination to list Sidalcea oregana var. calva as an endangered 
species was published in the Federal Register on December 22, 1999 (64 
FR 71680). In the final rule, we found that designation of critical 
habitat for the species was prudent. However, due to insufficient 
funding in our listing budget, critical habitat designation was 
deferred in order to focus our resources on higher priority critical 
habitat, including court-ordered designations, and other listing 
actions (64 FR 71685), while still allowing us to put in place 
protections needed for the protection of S. oregana var. calva through 
the listing process.
    Subsequent to the final rule listing the species as endangered, the 
Southwest Center for Biological Diversity filed suit to compel us to 
designate critical habitat for several species, including Sidalcea 
oregana var. calva (Southwest Center for Biological Diversity et al. v. 
Babbitt-Civil, No. 99-D-1118). We entered into a settlement agreement 
with the plaintiff and agreed to propose critical habitat with a final 
determination to be made no later than August 31, 2001. The proposed 
rule to designate critical habitat for the species was published in the 
Federal Register on January 18, 2001 (66 FR 4783). In the proposal, we 
determined that it was prudent to designate approximately 2,484 ha 
(6,135 ac) of lands in Chelan County as critical habitat. The 
publication of the proposed rule opened a 60-day public comment period, 
which closed on March 19, 2001. On May 15, 2001, we published a notice 
announcing the reopening of the comment period on the proposal to 
designate critical habitat for Sidalcea oregana var. calva, and a 
notice of availability of the draft economic analysis on the proposed 
determination (66 FR 26827). This second public comment period closed 
on June 14, 2001.

Summary of Comments and Recommendations

    We contacted appropriate Federal and State agencies, scientific 
organizations, and other interested parties and invited them to 
comment. In addition, we invited public comment through the publication 
of a notice in the Wenatchee World on May 20, 2001.
    On April 4, 2001, we held an informal public workshop in 
Leavenworth, Washington, to consider economic and other relevant 
impacts of designating critical habitat for Sidalcea oregana var. 
calva. Eleven individuals from the local community attended the 
workshop. The meeting was also attended by representatives from WDNR, 
the Forest Service, and The Nature Conservancy. No formal comments were 
accepted at this meeting; however, we encouraged the local community to 
provide written comments during the time when the comment period was 
reopened in May. All individuals who attended the meeting, in addition 
to all the landowners who live in the vicinity of the designated 
critical habitat, were notified by letter at the time the comment 
period was reopened.
    We received two comments regarding the designation of critical 
habitat for the Wenatchee Mountains checker-mallow. One comment was 
received from the WDNR, Southeast Region, while the second comment was 
received from the Conservation Chair, Washington Native Plant Society. 
Both letters supported the designation of critical habitat. The letter 
from the Washington Native Plant Society raised several points that 
merit consideration. The letter concurred with our decision to exclude 
one of the six known populations for Sidalcea oregana var. calva, a 
disjunct population occurring on private property, as critical habitat. 
We had determined that this occurrence of the plant was not essential 
to the conservation of the species. Additionally, the letter 
recommended that although this occurrence was not ``critical to the 
taxon's survival'', it may represent an important genotype for the 
species and contribute to the species' genetic variability, and that 
seed should be collected from the population and maintained in an 
appropriate seed bank. We concur with this recommendation and, after 
getting permission from the landowners, will plan for seed collection, 
seed banking, and genetic testing of all known populations of the 
species, which will contribute to information requirements for the 
recovery of the species. Finally, because several populations of the 
species were adversely affected by wildfire during the summer of 1994, 
the commenter recommended developing protocols for fighting fires 
specific to areas with endangered plants where critical habitat has 
been designated. The Federal Wildland Fire Policy (1985) was developed 
by the Departments of Agriculture and the Interior to provide a common 
approach to wildland fire management that is consistent with public 
health and environmental considerations. The policy states that the 
protection priorities are; (1) human life, and (2) property and 
natural/cultural resources. We concur with the comment and, consistent 
with the policy, a recovery plan for this species will be developed 
with these considerations in mind.

[[Page 46539]]

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited independent expert opinions from three 
knowledgeable plant ecologists and/or botanists who are familiar with 
Sidalcea oregana var. calva. We received comments from only one of the 
peer reviewers on the proposed critical habitat designation. Those 
comments were incorporated into this final rule.

Summary of Changes From the Proposed Rule

    There are no significant changes from the proposed rule to this 
final rule.

Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as--(i) 
the specific areas within the geographic area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographic area occupied by a species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species.
    Conservation is defined in section 3(3) of the Act as the use of 
all methods and procedures which are necessary to bring any endangered 
or threatened species to the point at which listing under the Act is no 
longer necessary. Regulations under 50 CFR 424.02(j) define special 
management considerations or protection to mean any methods or 
procedures useful in protecting the physical and biological features of 
the environment for the conservation of the listed species.
    Within the geographic area occupied by the species, we will 
designate only areas currently known to be essential. Essential areas 
should already have the features and habitat characteristics that are 
necessary to sustain the species. We will not speculate about what 
areas might be found to be essential if better information became 
available, or what areas may become essential over time. If the 
information available at the time of designation does not show that an 
area provides essential life cycle needs of the species, then the area 
should not be included in the critical habitat designation. Within the 
geographic area occupied by the species, we will not designate areas 
that do not now have the primary constituent elements, as defined at 50 
CFR 424.12(b), that provide essential life cycle needs of the species.
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the species only when a designation limited to its present range 
would be inadequate to ensure the conservation of the species.'' (50 
CFR 424.12(e)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species require designation of critical habitat outside of occupied 
areas, we will not designate critical habitat in areas outside the 
geographic area occupied by the species.
    When we designate critical habitat at the time of listing, as 
required under Section 4 of the Act, or under short court-ordered 
deadlines, we may not have the information necessary to identify all 
areas which are essential for the conservation of the species. 
Nevertheless, we are required to designate those areas we know to be 
critical habitat, using the best information available to us.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (Vol. 59, p. 
34271), provides criteria, establishes procedures, and provides 
guidance to ensure that our decisions represent the best scientific and 
commercial data available. It requires Service biologists, to the 
extent consistent with the Act and with the use of the best scientific 
and commercial data available, to use primary and original sources of 
information as the basis for recommendations to designate critical 
habitat. When determining which areas are critical habitat, a primary 
source of information should be the listing package for the species. 
Additional information may be obtained from a recovery plan, articles 
in peer-reviewed journals, conservation plans developed by states and 
counties, scientific status surveys and studies, and biological 
assessments or other unpublished materials.

Methods

    In determining areas that are essential to conserve Sidalcea 
oregana var. calva, we used the best scientific information available 
to us. This information included habitat suitability and site-specific 
species information, as well as discussions with Wenatchee National 
Forest and WDNR scientists about the management and conservation of 
this species. We have emphasized areas of current and historical 
Sidalcea oregana var. calva occurrences; maintenance of the genetic 
interchange necessary for the viability of a regional metapopulation; 
and maintenance of the integrity of the watershed hydrologic processes 
on which the wetlands and moist meadows that support the species 
depend. A metapopulation is a group of spatially separated populations 
that occasionally exchange genes. Individual populations may go 
extinct, but are later recolonized from another population. Linking the 
known populations provides pathways for gene flow, as well as 
opportunities for colonization by the species of areas where it may be 
extirpated. We believe that the maintenance of a viable regional 
metapopulation, as well as the integrity of the hydrologic processes 
that control the wetland and moist meadow habitat are essential to the 
conservation of Sidalcea oregana var. calva.
    We used data on known and historic locations and soil maps to 
identify areas essential to the conservation of the species. We mapped 
critical habitat based on orthoquads and aerial photos available from 
WDNR, and ground-checked these areas. We included areas with wetland 
vegetation communities dominated by native grasses and forbs and 
generally free of woody shrubs, hardwood trees, or conifers that would 
produce shade and/or compete with Sidalcea oregana var. calva. Seeps, 
springs, and riparian corridors that have clay loam and silt loam soils 
were included because of their importance to maintaining the hydrologic 
processes that are essential to the conservation of the species. 
Inclusion of these areas also allows for the natural expansion of 
Sidalcea oregana var. calva populations that is essential for the 
conservation of the species.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act, and regulations 
at 50 CFR 424.12, in determining which areas to propose as critical 
habitat, we must consider those physical and biological features 
(primary constituent elements) that are essential to the conservation 
of the species. These include, but are not limited to, the following: 
space for individual and population growth, and for normal behavior; 
food, water, air, light, minerals or nutrients, or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing of offspring, germination, or seed dispersal; and habitats that 
are protected from disturbance or are representative of the historic 
geographical and ecological distribution of a species.
    The area we are designating as critical habitat provide the primary 
constituent elements for the species, which include: surface water or 
saturated upper soil profiles; a wetland plant community

[[Page 46540]]

dominated by native grasses and forbs, and generally free of woody 
shrubs and conifers that would produce shade and competition for 
Sidalcea oregana var. calva; seeps and springs on fine textured soils 
(clay loams and silt loams), which contribute to the maintenance of 
hydrologic processes necessary to support meadows which remain moist 
into the early summer; and elevations of 488-1,000 m (1,600-3,300 ft).
    In an effort to map areas that have the features essential to the 
conservation of the species, we used data on known Sidalcea oregana 
var. calva locations. We attempted to avoid developed areas, such as 
towns and other similar lands, that are unlikely to contribute to 
Sidalcea oregana var. calva conservation. However, mapping limitations 
did not allow us to exclude all developed areas, such as towns, or 
housing developments, or other lands unlikely to contain the primary 
constituent elements essential for conservation of Sidalcea oregana 
var. calva. Existing features and structures within the boundaries of 
the mapped unit, such as buildings, roads, aqueducts, railroads, 
airports, other paved areas, lawns, and other rural residential 
landscaped areas, will not contain one or more of the primary 
constituent elements and are, therefore, not critical habitat. Federal 
actions limited to those areas would not trigger a section 7 
consultation, unless they affect the species and/or primary constituent 
elements in adjacent critical habitat.

Critical Habitat Designation

    We are designating critical habitat for one unit, comprised of 
2,484 ha (6,135 ac). The approximate area, by land ownership, of this 
unit is shown in Table 1.

 Table 1.--Approximate Area of Designated Critical Habitat in Hectares (ha) and Acres (ac)\1\ in Chelan County,
                                          Washington, by Land Ownership
[Area estimates reflect the critical habitat unit boundaries; however, existing features and structures, such as
     buildings, roads, aqueducts, railroads, airports, other paved areas, lawns, and other rural residential
 landscaped areas not containing one or more of the primary constituent elements are not designated as critical
                                    habitat for Sidalcea oregana var. calva.]
----------------------------------------------------------------------------------------------------------------
               Federal                       Local/state                Private                   Total
----------------------------------------------------------------------------------------------------------------
                                      Areas Known To Be Currently Occupied
----------------------------------------------------------------------------------------------------------------
0.5 ha...............................  38 ha..................  0.5 ha.................  39 ha.
(1 ac)...............................  (94 ac)................  (1 ac).................  (96 ac).
----------------------------------------------------------------------------------------------------------------
                                 Areas of Suitable Habitat of Unknown Occupancy
----------------------------------------------------------------------------------------------------------------
830 ha...............................  540 ha.................  1,075 ha...............  2,445 ha.
(2,050 ac)...........................  (1,334 ac).............  (2,655 ac).............  (6,039 ac).
    Total............................  .......................  .......................  2,484 ha.
                                       .......................  .......................  (6,135 ac).
----------------------------------------------------------------------------------------------------------------
\1\ Approximate acres have been converted to hectares (1 ha = 2.47 ac). Hectares and acres greater than 1 have
  been rounded to the nearest 5, except for totals which are sums of rows or columns.

    Lands are designated under private, State, and Federal ownership. 
All of the designated critical habitat for Sidalcea oregana var. calva 
is in Chelan County, Washington, and includes Camas Creek and the 
adjacent Pendleton Canyon sub-basin. The area designated for critical 
habitat includes all of the lands that have the primary constituent 
elements below 1,000 m (3,300 ft) within the Camas Creek watershed, and 
in the small tributary within Pendleton Canyon before its confluence 
with Peshastin Creek, and includes: (1) The entire area encompassed by 
the Camas Meadow Natural Area Preserve, which is administered by the 
WDNR; (2) two populations located on Forest Service land; (3) the small 
drainage north of the Camas Land, administered by the WDNR; and (4) the 
population on private property located in Pendleton Canyon; (5) the 
wetland complex of these watersheds necessary for providing the 
essential habitat components on which recovery and conservation of the 
species depends.
    Portions of the designated critical habitat are presumably 
unoccupied by Sidalcea oregana var. calva at present, although the 
entire area has not been recently surveyed. Soil maps indicate that the 
entire area provides suitable habitat for the species, and there may be 
additional, but currently unknown, populations present here. Wetlands 
and moist meadow habitats (native grassland and forb-dominated 
vegetation) suitable for Sidalcea oregana var. calva are generally 
surrounded by upland areas, which are dominated by ponderosa pine and 
Douglas-fir forests. While these upland areas are less suitable as 
habitat for the species, because protection of the hydrological 
processes is necessary to ensure the viability of the wetland habitat 
of the species, we consider the entire area essential to the survival, 
eventual recovery, and delisting of Sidalcea oregana var. calva.
    Pursuant to the definition of critical habitat in section 3 of the 
Act, any area so designated must also require ``special management 
considerations or protections.'' Some areas essential to the 
conservation of the species may not be designated critical habitat if 
they already have adequate special management. Adequate special 
management or protection is provided by a legally operative plan that 
addresses the maintenance and improvement of the essential elements and 
provides for the long-term conservation of the species. We consider a 
plan adequate when it meets all of the following three criteria: (1) 
The plan provides a conservation benefit to the species (i.e., the plan 
must maintain or provide for an increase in the species' population or 
the enhancement or restoration of its habitat within the area covered 
by the plan); (2) the plan provides assurances that the management plan 
will be implemented (i.e., those responsible for implementing the plan 
are capable of accomplishing the objectives, have an implementation 
schedule and/or have adequate funding to implement the management 
plan); and (3) the plan provides assurances the conservation plan will 
be effective (i.e., it identifies biological goals, has provisions for 
reporting progress, and is of a duration sufficient to implement the 
plan and achieve the plan's goals and objectives). If an area is 
covered by a plan that meets these criteria, it does not constitute 
critical habitat as defined by the Act.

[[Page 46541]]

    The Camas Land NAP is managed by the WDNR, and a final Management 
Plan (Plan) for the area was approved in June 2000. The NAP was 
established in 1989 to protect the large populations of Sidalcea 
oregana var. calva and Delphinium viridescens (Wenatchee larkspur) that 
occur at Camas Meadow. The general management policy described in the 
Plan applies to all NAPs managed by the WDNR. These include: (1) 
Protection of outstanding examples of rare or vanishing terrestrial or 
aquatic ecosystems, rare plant and animal species, and unique geologic 
features; (2) the role of NAPs as a baseline to compare with similar 
ecosystems that are under the influence of human activities; and (3) 
areas that are important to preserving natural features of scientific 
or educational value. However, the Plan does not provide a specific 
management plan or prescription designed to conserve Sidalcea oregana 
var. calva, beyond permitting natural ecological and physical processes 
to continue (WDNR 2000). The Plan does call for management actions to 
enhance wet meadow habitat, which will benefit Sidalcea oregana var. 
calva by removing competing vegetation, including controlling noxious 
weeds; thinning ponderosa pine in the uplands; and improving and 
replacing culverts. However, these actions have not yet been 
implemented, and it is too early to assess their effectiveness.
    Although the species is listed as endangered by the WDNR's Natural 
Heritage Program (1994), there is no State Endangered Species Act in 
the State of Washington for plants. The WDNR designation provides no 
legal protection for Sidalcea oregana var. calva, and there are no 
State laws that specifically protect plants on State lands. Therefore, 
we believe that this management plan alone does not provide sufficient 
protection for Sidalcea oregana var. calva, and have included the Camas 
Land NAP within the critical habitat designation.
    Developed areas on the periphery of the Camas Land NAP and the 
Camas Meadow Bible Camp located on the south side of the Camas Land, 
within the area designated as critical habitat, are not considered as 
essential to the conservation of the species. These developed areas 
have been altered by the planting of lawns, installation of septic 
systems, and horse pastures and, therefore, do not contain the primary 
constituent elements necessary for the long-term protection and 
conservation of Sidalcea oregana var. calva.
    We have determined that the habitat supporting the population found 
at the Mountain Home Resort (Resort) is not essential to the 
conservation of the species. This population is disjunct from the 
remaining populations, and located in an area entirely surrounded with 
private residences, private timberlands, and a road administered by 
Chelan County. The habitat on this property that contains Sidalcea 
oregana var. calva, and the former candidate species Delphinium 
virdescens, is confined to a small linear area associated with a 
drainage ditch adjacent to the Mountain Home road and is bordered on 
the north and south by gravel access roads leading to residences. It is 
likely that the habitat resulted from the construction of the road and 
the creation of the drainage ditch. The habitat is now dominated by 
non-native, sod-forming grasses and forbs mixed with native vegetation 
(Dottie Knecht, Forest Service, pers. comm. 2000). The class-B 
Washington State noxious weed, Potentiall recta (sulfur cinquefoil) 
(Washington Administrative Code 16-750-011) is frequently encountered 
in monitoring plots at this site, although at low densities (D. Knecht, 
pers. comm. 2000). Moving out of the occupied habitat and up the hill 
towards the Resort, the vegetation is also dominated by sod-forming 
pasture and lawn grasses, including Agrostis alba (creeping bentgrass), 
Alopecuris pratensis (meadow foxtail), Phleum pratense (timothy grass), 
and Bromus inermis (smooth brome). These species are not consistent 
with the primary constituent elements.
    Through observation of the adjacent properties along the Mountain 
Home road, it is evident that, if the Resort were not present and the 
land had not been cleared to create a vista, the marginal habitat where 
the small population is found at this site would be forested with 
conifers mixed with hardwood trees and shrubs. Such habitat does not 
contain the vegetative requirements and open conditions of the primary 
constituent elements.
    The population at the Resort is also disjunct from the other 
populations of the species, which are more than 16 km (10 mi) distant. 
Because of fragmentation and the patchy distribution of habitat between 
this population and other populations of the species, the persistence 
of this population cannot be assured. We believe that the most 
appropriate conservation strategy for Sidalcea oregana var. calva is 
one that focuses on the protection and expansion of the core habitat of 
the species rather than the protection of isolated populations of 
doubtful viability. Except through artificial means, there is no 
opportunity for gene exchange between this population and the other 
populations. Although no genetic testing has been conducted for this 
species, a small population, such as that found at the Resort, is 
likely to have reduced genetic diversity, which can result in decreased 
population viability due to inbreeding (Schemske et al. 1994).
    Although the ability to predict random environmental events 
(stochastic events) is low, events such as forest fires (e.g., the 1994 
Rat Creek and Hatchery Creek Fires) and rain-on-snow flooding do occur. 
The effects of these stochastic events are most acute in small 
populations (Schemske et al. 1994). As a result of an increased 
importance of stochastic processes and changes in ecological 
interactions in declining populations, the probability of a population 
extirpation is expected to be negatively correlated with its size 
(Schemske et al. 1994).
    The population found at Pendleton Canyon is on privately-owned land 
that has been included as critical habitat because it is essential to 
the conservation of Sidalcea oregana var. calva. It is located in a 
wildland setting with none of the modifications typically associated 
with a residence, unlike the private residences near Camas Meadow or 
the population of Sidalcea oregana var. calva at the Resort which lack 
the primary constituent elements and have been excluded from critical 
habitat designation.
    The Recovery Team for Sidalcea oregana var. calva will be providing 
guidance on recovery planning for this species, and at that time, they 
may provide additional guidance regarding the areas designated as 
critical habitat. We will review any of the Recovery Team's 
recommendations and re-examine our critical habitat designation, if 
necessary, to provide for the conservation of the species.

Effects of Critical Habitat Designation

Section 7  Consultation

    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that designation of 
critical habitat may not include all of the habitat areas that may 
eventually be determined to be necessary for the recovery of the 
species. For these reasons, all should understand that critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or may not be required for recovery. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be

[[Page 46542]]

implemented under section 7(a)(1) and to the regulatory protections 
afforded by the section 7(a)(2) jeopardy standard and the section 9 
take prohibition, as determined on the basis of the best available 
information at the time of the action. We specifically anticipate that 
federally funded or assisted projects affecting listed species outside 
their designated critical habitat areas may still result in jeopardy 
findings in some cases. Similarly, critical habitat designations made 
on the basis of the best available information at the time of 
designation will not control the direction and substance of future 
recovery plans, habitat conservation plans, or other species 
conservation planning efforts if new information available to these 
planning efforts calls for a different outcome.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 also requires conferences on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. In our regulations at 50 CFR 402.02, 
we define destruction or adverse modification as `` * * *the direct or 
indirect alteration that appreciably diminishes the value of critical 
habitat for both the survival and recovery of a listed species. Such 
alterations include, but are not limited to, alterations adversely 
modifying any of those physical or biological features that were the 
basis for determining the habitat to be critical.'' Aside from the 
added protection that may be provided under section 7, the Act does not 
provide other forms of protection to lands designated as critical 
habitat. Because consultation under section 7 of the Act does not apply 
to activities on private or other non-Federal lands that do not involve 
a Federal nexus, critical habitat designation would not afford any 
additional protections under the Act against such activities.
    Section 7(a)(2) of the Act requires that Federal agencies, 
including the Service, must ensure that actions they fund, authorize, 
or carry out do not destroy or adversely modify critical habitat to the 
extent that the action appreciably diminishes the value of the critical 
habitat for the survival and recovery of the species. Individuals, 
organizations, States, local governments, and other non-Federal 
entities are affected by the designation of critical habitat only if 
their actions occur on Federal lands, require a Federal permit, 
license, or other authorization, or involve Federal funding.
    Under section 7(a) of the Act, Federal agencies, including the 
Service, evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is designated or proposed. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Section 7(a)(4) and regulations at 50 CFR 
402.10 requires Federal agencies to confer with us on any action that 
is likely to jeopardize the continued existence of a proposed species 
or result in destruction or adverse modification of proposed critical 
habitat. Conference reports provide conservation recommendations to 
assist the agency in eliminating conflicts that may be caused by the 
proposed action. The conservation recommendations in a conference 
report are advisory.
    We may issue a formal conference report if requested by a Federal 
agency. Formal conference reports on proposed critical habitat contain 
a biological opinion that is prepared according to 50 CFR 402.14, as if 
critical habitat were designated. If such designation occurs, we may 
adopt the formal conference report as a biological opinion, if no 
substantial new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)).
    When a species is listed or critical habitat is designated, 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 the species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency must enter into 
consultation with us. Through this consultation, we would advise the 
agencies whether the permitted actions would likely jeopardize the 
continued existence of the species or destroy or adversely modify 
critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.02 as alternative actions identified during 
consultation that can be implemented in a manner consistent with the 
intended purpose of the action, that are consistent with the scope of 
the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that the Director 
believes would avoid the likelihood of jeopardizing the continued 
existence of listed species or resulting in the destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conferencing with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Activities on private or State lands requiring a permit from a 
Federal agency, such as a permit from the U.S. Army Corps of Engineers 
(Corps) under section 404 of the Clean Water Act (33 U.S.C. 1344 et 
seq.), or a section 10(a)(1)(B) permit from the Service, or some other 
Federal action, including funding (e.g., from the Federal Highway 
Administration or Federal Emergency Management Agency) are also subject 
to the section 7 consultation process. Federal actions not affecting 
listed species or critical habitat, and actions on non-Federal lands 
that are not federally funded, authorized, or permitted do not require 
section 7 consultation. While efforts were made to exclude existing 
features and structures, such as buildings, roads, and other such 
developed features not containing primary constituent elements, due to 
mapping constraints not all such features were excluded. Federal 
actions limited to these areas would not trigger a section 7 
consultation, unless they affect the species and/or the primary 
constituent elements in adjacent critical habitat.
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued

[[Page 46543]]

existence'' of a species are those that would appreciably reduce the 
likelihood of the species' survival and recovery. Actions likely to 
``destroy or adversely modify'' critical habitat are those that would 
appreciably reduce the value of critical habitat for the survival and 
recovery of the listed species.
    Common to both definitions is an appreciable detrimental effect on 
both survival and recovery of a listed species. Given the similarity of 
these definitions, actions likely to destroy or adversely modify 
critical habitat would almost always result in jeopardy to the species 
concerned, particularly when the area of the proposed action is 
occupied by the species concerned. Designation of critical habitat in 
areas known to be occupied by Sidalcea oregana var. calva, and areas 
where the species is detected in surveys at the time of the action, is 
not likely to result in a significant regulatory burden above that 
already in place due to the presence of the listed species. For some 
previously reviewed actions, in instances where critical habitat is 
subsequently designated, and in those cases where activities occur on 
designated critical habitat where Sidalcea oregana var. calva is not 
found at the time of the action, an additional section 7 consultation 
with the Service not previously required may be necessary for actions 
funded, authorized, or carried out by Federal agencies.
    Section 4(b)(8) of the Act requires us to briefly describe and 
evaluate in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may adversely 
modify such habitat or that may be affected by such designation. When 
determining whether any of these activities may adversely modify 
critical habitat, we base our analysis on the effects of the action on 
the entire critical habitat area and not just on the portion where the 
activity will occur. Adverse effects on constituent elements or 
segments of critical habitat generally do not result in an adverse 
modification determination unless that loss, when added to the 
environmental baseline, is likely to appreciably diminish the 
capability of the critical habitat to satisfy essential requirements of 
the species. In other words, activities that may destroy or adversely 
modify critical habitat include those that alter the primary 
constituent elements (defined above) to an extent that the value of 
critical habitat for both the survival and recovery of the Sidalcea 
oregana var. calva is appreciably diminished.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and require that a section 
7 consultation be conducted include, but are not limited to:
    (1) Damming, water diversion, channelization, excess groundwater 
pumping, repair and replacement of culverts, or other actions that 
appreciably reduce the hydrologic function and surface area of rivers, 
streams, seeps or springs;
    (2) Timber harvesting and road construction that directly or 
indirectly affects the hydrology of sites harboring the species;
    (3) Rural residential construction that includes concrete pads for 
foundations or the installation of septic systems where a permit under 
section 404 of the Clean Water Act would be required from the Corps;
    (4) Activities that alter watershed characteristics in ways that 
would appreciably reduce groundwater recharge or alter natural flooding 
regimes necessary to maintain natural, dynamic wetland communities. 
Such activities may include manipulation of vegetation through timber 
harvesting, road construction, maintaining an unnatural fire regime 
either through fire suppression, or too frequent or poorly-timed 
prescribed fires, residential and commercial development, and grazing 
of livestock that changes fire frequency or otherwise degrades 
watershed values;
    (5) Activities that appreciably degrade or destroy native wetland 
communities, such as livestock grazing, land clearing, harvesting of 
trees or other forest products, introducing or encouraging the spread 
of non-native plant species; and
    (6) Activities that appreciably alter stream channel morphology 
such as sand and gravel mining, road construction, channelization, 
impoundment, watershed disturbances, off-road vehicle use, and 
inappropriate recreational uses.
    Any of the above activities that appreciably diminish the value of 
critical habitat to the degree that they affect the survival and 
recovery of Sidalcea oregana var. calva may be considered an adverse 
modification or destruction of critical habitat. We note that such 
activities may also jeopardize the continued existence of the species.
    If you have questions regarding whether specific activities will 
constitute destruction or adverse modification of critical habitat 
resulting from a Federal action, contact Ken Berg, Manager, Western 
Washington Office (see ADDRESSES section). Requests for copies of the 
regulations on listed wildlife, and inquiries about prohibitions and 
permits may be addressed to the U.S. Fish and Wildlife Service, Branch 
of Endangered Species, 911 N.E. 11th Ave, Portland, Oregon 97232 
(telephone 503/231-2063; facsimile 503/231-6243).

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of the 
exclusions outweigh the benefits of specifying the areas as critical 
habitat. We cannot exclude the areas from critical habitat when the 
exclusion will result in the extinction of the species.
    Economic effects caused by listing Sidalcea oregana var. calva as 
an endangered species and by other statutes are the baseline against 
which the effects of critical habitat designation are evaluated. The 
economic analysis must then examine the incremental economic effects 
and benefits of the critical habitat designation. Economic effects are 
measured as changes in national income, regional jobs, and household 
income. We made the draft economic analysis available for public review 
and comment as described in the ``Summary of Comments'' section of this 
document. The final analysis, which reviewed and incorporated public 
comments as appropriate, concluded that no significant additional 
economic impacts are expected from critical habitat designation above 
and beyond that already attributable to the listing of Sidalcea oregana 
var. calva under the Act and other statutes. The most likely economic 
effects of critical habitat designation are on activities funded, 
authorized, or carried out by a Federal agency.
    We believe that any project that would adversely modify or destroy 
critical habitat for Sidalcea oregana var. calva would also jeopardize 
the continued existence of the species, and that reasonable and prudent 
alternatives to avoid jeopardizing the species would also avoid adverse 
modification of critical habitat. Thus, no significant additional 
regulatory burden or associated significant additional costs would 
accrue because of critical habitat above and beyond those attributable 
to the listing of Sidalcea oregana var. calva. Our economic analysis 
does recognize that there may be costs from delays associated with 
reinitiating completed consultations after the critical habitat 
designation is made final. There may also be economic

[[Page 46544]]

effects due to the reaction of the real estate market to critical 
habitat designation, as real estate values may be lowered due to 
perceived increase in the regulatory burden. We believe these impacts 
will be short-term, however.
    The economic analysis concludes that, over the next 10 years the 
section 7 costs attributable to the listing are not expected to exceed 
$10,000, and result from a new consultation between us, the USFS, and 
WDNR. Costs attributable to critical habitat designation are not 
expected to exceed $2,000 and result from a re-initiated consultation 
between the USFS and us. Private landowners should incur no additional 
costs resulting from critical habitat designation. This estimate is 
based on the existing consultation history with agencies in this area 
and increased public awareness regarding the actual impacts of critical 
habitat designation on land values. Therefore, we conclude that no, or 
minimal, significant incremental costs are anticipated as a result of 
the designation of critical habitat for Sidalcea oregana var. calva.
    A copy of the final economic analysis and a description of the 
exclusion process with supporting documents are included in our 
administrative record and may be obtained by contacting our Western 
Washington Office (see ADDRESSES section).

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order (EO) 12866, this rule is a 
significant regulatory action and has been reviewed by the Office of 
Management and Budget (OMB).
    (a) In the economic analysis, we determined that this rule will not 
have an annual economic effect of $100 million or more or adversely 
affect an economic sector, productivity, jobs, the environment, or 
other units of government. Sidalcea oregana var. calva was listed as 
endangered on December 22, 1999. Since that time we have conducted, and 
will continue to conduct, formal and informal section 7 consultations 
with other Federal agencies to ensure that their actions will not 
jeopardize the continued existence of Sidalcea oregana var. calva.
    Under the Act, critical habitat may not be adversely modified by a 
Federal agency action; critical habitat does not impose any 
restrictions on non-Federal persons unless they are conducting 
activities funded or otherwise sponsored or permitted by a Federal 
agency (see Table 2). Section 7 of the Act requires Federal agencies to 
ensure that they do not jeopardize the continued existence of the 
species. Based on our experience with the species and its needs, we 
believe that any Federal action or authorized action that could 
potentially cause an adverse modification of the proposed critical 
habitat would currently be considered as jeopardy to the species under 
the Act.
    Accordingly, we do not expect the designation of areas as critical 
habitat within the geographical range of the species to have any 
incremental impacts on what actions may or may not be conducted by 
Federal agencies or non-Federal persons that receive Federal 
authorization or funding. Non-Federal persons who do not have a Federal 
sponsorship of their actions are not restricted by the designation of 
critical habitat.

                                Table 2.--Impacts of Sidalcea oregana var. calva Listing and Critical Habitat Designation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               Activities potentially affected by species      Additional activities potentially affected by critical
           Categories of activities                           listing only                                    habitat designation \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal Activities Potentially Affected \2\..  Activities conducted by the Army Corps of   Activities by these Federal Agencies in designated areas
                                                Engineers, U.S. Forest Service,             where section 7 consultations would not have occurred but
                                                Environmental Protection Agency, Federal    for the critical habitat designation.
                                                Highway Administration, and any other
                                                Federal Agencies, including, but not
                                                limited to, actions that appreciably
                                                reduce the hydrologic function and
                                                surface area of rivers, streams, seeps,
                                                or springs, timber harvesting and road
                                                construction, rural residential
                                                construction that includes concrete pads
                                                for foundations or the installation of
                                                septic systems, and activities that alter
                                                watershed characteristics in ways that
                                                would appreciably reduce groundwater
                                                recharge or alter natural flooding
                                                regimes to alter natural, dynamic wetland
                                                communities.
Private or other non-Federal Activities        Activities that require a Federal action    Funding, authorization, or permitting such actions by Federal
 Potentially Affected \3\.                      (permit, authorization, or funding) and     Agencies in any unoccupied critical habitat areas.
                                                may remove or destroy Sidalcea oregana
                                                var. calva habitat by mechanical,
                                                chemical, or other means (e.g., grading,
                                                discing, ripping, and tilling, water
                                                diversion, impoundment, groundwater
                                                pumping, irrigation, construction, road
                                                building, herbicide application,
                                                recreational use, etc.) or appreciably
                                                decrease habitat value or quality through
                                                indirect effects (e.g., edge effects,
                                                invasion of exotic plants or animals,
                                                fragmentation of habitat).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This column represents activities potentially affected by the critical habitat designation in addition to those activities potentially affected by
  listing the species.
\2\ Activities initiated by a Federal agency.
\3\ Activities initiated by a private or other non-Federal entity that may need Federal authorization or funding.

    (b) This rule is not expected to create inconsistencies with other 
agencies' actions. As discussed above, Federal agencies have been 
required to ensure that their actions do not jeopardize the continued 
existence of Sidalcea oregana var. calva since its listing in 1999. The 
prohibition against adverse modification of critical habitat is 
expected to impose few, if any, additional restrictions to those that 
currently exist. However, we will continue to review this proposed 
action for any inconsistencies with other Federal agency actions.
    (c) This final rule will not significantly impact entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients. Federal agencies are currently required to ensure 
that their activities do not jeopardize the continued existence of the 
species, and, as discussed above, we do not anticipate that the adverse 
modification prohibition (resulting from critical habitat designation) 
will have any incremental effects in areas of designated critical 
habitat.
    (d) OMB has determined that this rule may raise novel legal or 
policy issues and, as a result, this rule has undergone OMB review.

[[Page 46545]]

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
our determination.
    We have examined this rule's potential effects on small entities as 
required by the Regulatory Flexibility Act, and have determined that 
this action will not have a significant economic impact on a 
substantial number of small entities.
    As discussed in the economic analysis for this rulemaking and the 
preamble above, this rule is not expected to result in any significant 
restrictions in addition to those currently in existence for areas 
occupied by Sidalcea oregana var. calva and designated as critical 
habitat. As indicated in Table 1 (see Critical Habitat Designation 
section), we designated critical habitat on property owned by Federal, 
State and local governments, and private property, and identified the 
types of Federal actions or authorized activities that are of potential 
concern (Table 2). If these activities sponsored by Federal agencies 
within the designated critical habitat areas are carried out by small 
entities (as defined by the Regulatory Flexibility Act) through 
contract, grant, permit, or other Federal authorization, as discussed 
above, these actions are currently required to comply with the listing 
protections of the Act, and the designation of critical habitat is not 
anticipated to have any significant additional effects on these 
activities in areas of critical habitat occupied by the species. 
Designation of critical habitat in areas that are not known to be 
occupied by this species will also not likely result in a significant 
increased regulatory burden since the Corps of Engineers already 
requires review of projects involving wetlands because wetlands 
frequently contain listed species for which the Corps must consult with 
us under section 7. For actions on non-Federal property that do not 
have a Federal connection (such as funding or authorization), the 
current restrictions concerning take of the species remain in effect, 
and this rule will have no additional restrictions.
    Therefore, we are certifying that this final designation of 
critical habitat is not expected to have a significant adverse impact 
on a substantial number of small entities. Thus, no regulatory 
flexibility analysis is necessary.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
Although this rule is a significant regulatory action under Executive 
Order 12866, it is not expected to significantly affect energy 
supplies, distribution, or use. Therefore, this action is not a 
significant energy action and no Statement of Energy Effects is 
required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will not be affected unless they propose an action 
requiring Federal funds, permits, or other authorization. Any such 
activity will require that the Federal agency ensure that the action 
will not adversely modify or destroy designated critical habitat.
    (b) This rule, will not produce a Federal mandate of $100 million 
or greater in any year, that is, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. The designation of 
critical habitat imposes no obligations on State or local governments.

Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications. A takings implication assessment is 
not required. As discussed above, the designation of critical habitat 
affects only Federal agency actions. The rule will not increase or 
decrease the current restrictions on private property concerning take 
of Sidalcea oregana var. calva. Due to current public knowledge of the 
species' protection, and the fact that critical habitat provides no 
additional incremental restrictions, we do not anticipate that property 
values will be affected by the critical habitat designation. While real 
estate market values may temporarily decline following designation, due 
to the perception that critical habitat designation may impose 
additional regulatory burdens on land use, we expect any such impacts 
to be short term.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from and coordinated 
development of this critical habitat proposal with appropriate State 
resource agencies in Washington. The designation of critical habitat 
within the geographic range occupied by Sidalcea oregana var. calva 
imposes no additional restrictions to those currently in place and, 
therefore, has little incremental impact on State and local governments 
and their activities. The designation may have some benefit to these 
governments in that the areas essential to the conservation of the 
species are more clearly defined, and the primary constituent elements 
of the habitat necessary to the survival of the species are 
specifically identified. While making this definition and 
identification does not alter where and what federally sponsored 
activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We have designated critical habitat in accordance with 
the provisions of the Endangered Species Act. The rule uses standard 
property descriptions and identifies the primary constituent elements 
within the designated areas to assist the public in understanding the 
habitat needs of Sidalcea oregana var. calva. 

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any information collection requirements 
for

[[Page 46546]]

which OMB approval under the Paperwork Reduction Act is required. An 
agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a valid OMB 
Control Number.

National Environmental Policy Act

    We determined that we do not need to prepare an Environmental 
Assessment and/or an Environmental Impact Statement as defined by the 
National Environmental Policy Act of 1969 in connection with 
regulations adopted pursuant to section 4(a) of the Endangered Species 
Act, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, we readily 
acknowledge our responsibility to communicate meaningfully with 
recognized Federal Tribes on a government-to-government basis.
    We have determined that there are no Tribal lands essential for the 
conservation of Sidalcea oregana var. calva. Therefore, critical 
habitat for Sidalcea oregana var. calva has not been designated on 
Tribal lands.

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the Western Washington Office (see 
ADDRESSES section).

Author

    The primary author of this final rule is Ted Thomas (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. In Sec. 17.12(h), revise the entry for Sidalcea oregana var. 
calva under ``FLOWERING PLANTS'' to read as follows:


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
 
                   *                  *                  *                  *                  *                  *                  *
Sidalcea oregana var. calva......  Wenatchee Mountains   U.S.A. (WA)........  Malvaceae-(Mallow).  E                       673     17.96(a)          N/A
                                    checker-mallow.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    3. In Sec. 17.96, add critical habitat for the Wenatchee Mountains 
checker-mallow (Sidalcea oregana var. calva) under paragraph (a) by 
adding an entry for Sidalcea oregana var. calva after the entry for 
Kokia drynaroides under Malvaceae to read as follows:


Sec. 17.96  Critical habitat-plants.

    (a) Flowering plants.
* * * * *
    Family Malvaceae: Sidalcea oregana var. calva (Wenatchee 
Mountains checker-mallow).
    (1) Critical habitat unit is depicted for Chelan County, 
Washington, on the map below.
    (2) Washington, Chelan County. From USGS 7.5' quadrangle maps 
Peshastin and Tip Top, Washington. T. 23 N., R 18 E., beginning at a 
point on Camas Creek in the NW\1/4\ of NW\1/4\ of section 35 at 
approximately 47 deg.26'52" N latitude and 120 deg.38'57" W 
longitude proceeding downstream (northwesterly), expanding in all 
directions to include the entire wetland complex that comprises the 
Camas Meadow Natural Area Preserve, to a point approximately 0.4 km 
(0.25 mi) from the confluence of Pendleton Creek and Peshastin 
Creek, located at 47 deg.31'06" and 120 deg.37'18" W longitude. From 
this last point, the western boundary of the designated critical 
habitat parallels Peshastin Creek to a point at the southwest of the 
designated area located at 47 deg.28'46" N latitude and 
120 deg.38'57" W longitude. The maximum elevation of the designated 
critical habitat is 1,000 m (3,300 ft) and the lowest elevation is 
488 m (1,600 ft). Critical habitat within this area includes 
watercourses and wetland habitat out to the beginning of upland 
vegetation.
    (3) The known primary constituent elements of critical habitat 
for Sidalcea oregana var. calva include: surface water or saturated 
upper soil profiles; a wetland plant community dominated by native 
grasses and forbs, and generally free of woody shrubs and conifers 
that would produce shade and competition for Sidalcea oregana var. 
calva; seeps and springs on fine-textured soils (clay loams and silt 
loams), which contribute to the maintenance of hydrologic processes 
necessary to support meadows that remain moist into the early 
summer; and elevations of 488-1,000 m (1,600-3,300 ft).
    Critical habitat does not include existing features and 
structures, such as buildings, roads, aqueducts, railroads, 
airports, other paved areas, lawns, and other rural residential 
landscaped areas, not containing one or more of the primary 
constituent elements.

    Note: Map follows:

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* * * * *

    Dated: August 29, 2001.
Marshall P. Jones, Jr.,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-22341 Filed 9-5-01; 8:45 am]
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