[Federal Register Volume 67, Number 25 (Wednesday, February 6, 2002)]
[Rules and Regulations]
[Pages 5515-5525]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2760]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF75


Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Status for the Washington Plant Hackelia venusta (Showy 
Stickseed)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
endangered status under the Endangered Species Act of 1973, as amended 
(Act), for the Washington plant Hackelia venusta (showy stickseed). 
This plant species is a narrow endemic restricted to one small 
population of approximately 500 plants on less than 1 hectare (2.5 
acres) of unstable, granitic talus on the lower slopes of Tumwater 
Canyon, Chelan County, Washington, entirely on Federal land. Major 
threats to H. venusta include: Collection; physical disturbance to the 
plants and habitat by humans, competition and shading from native trees 
and shrubs; encroachment onto the site by nonnative noxious weed 
species; wildfire; fire suppression and associated activities; and low 
seedling establishment. Highway maintenance activities, such as the 
spreading of sand and salt, and the use of de-icers during winter 
months, threaten the species. Also, the application of herbicides may 
pose a threat. Reproductive vigor may be depressed because of the 
plant's small population size and limited gene pool. A single natural 
or human-caused random environmental disturbance could destroy a 
significant percentage of the population.
    We determine that the designation of critical habitat is not 
prudent for Hackelia venusta because it would likely increase the 
threats from collection and both direct and inadvertent habitat 
degradation and destruction. This rule implements the Federal 
protections provided by the Act for this plant.

DATES: This final rule is effective March 8, 2002.

ADDRESSES: The complete file for this rule is available for public 
inspection, by appointment, during normal business hours at the Western 
Washington Fish and Wildlife Office, U.S. Fish and Wildlife Service, 
510 Desmond Drive, Suite 102, Lacey, WA 98503.

[[Page 5516]]


FOR FURTHER INFORMATION CONTACT: Ted Thomas, (see ADDRESSES section), 
telephone 360/753-4327; facsimile 360/753-9518.

SUPPLEMENTARY INFORMATION:

Background

    Hackelia venusta (showy stickseed) is a showy perennial herb of the 
Borage family (Boraginaceae). The plant was originally described by 
Charles Piper as Lappula venusta, based on a collection from Tumwater 
Canyon, Chelan County, Washington made by J. C. Otis in 1920. In 1929, 
Harold St. John reexamined the specimen and placed it in the related 
genus Hackelia upon recognizing that, being a perennial plant, it more 
properly fit with Hackelia than Lappula, a genus of annual plants (St. 
John 1929).
    Hackelia venusta is a short, moderately stout species, 20 to 40 
centimeters (cm) (8 to 16 inches (in)) tall, often with numerous, erect 
to ascending stems from a slender taproot. It has large, showy, five-
lobed flowers that are white and reach approximately 1.9 to 2.2 cm 
(0.75 to 0.87 in) across. Basal leaves are 7 to 14 cm (2.8 to 5.5 in) 
long and 0.64 to 1.3 cm (0.25 to 0.5 in) wide, while the upper stem 
leaves are 2.5 to 5.1 cm (1 to 2 in) long and 0.38 to 0.64 cm (0.15 to 
0.25 in) wide (Barrett et al. 1985). The fruit consists of a prickly 
nutlet, approximately 0.38 to 0.43 cm (0.15 to 0.17 in) long, and is 
covered with stiff hairs that aid in dispersal by wildlife.
    Hackelia venusta is morphologically uniform and is distinct from 
other species of Hackelia occurring in central Washington. It can be 
distinguished from other species in the genus, in part, by its smaller 
stature, shorter leaf length, fewer basal leaves, and the large size of 
the flowers. High-elevation Hackelia populations that have, in the 
past, been assigned to Hackelia venusta have distinct morphological 
features with the most obvious distinction being blue flowers. The 
Tumwater Canyon flowers are white and on rare occasion washed with 
blue. Other distinct morphological differences between the Tumwater 
Canyon and the high-elevation Hackelia populations are limb width, 
plant height, and radical leaf length (Harrod et al. 1999).
    Hackelia venusta is shade-intolerant (Robert Carr, Eastern 
Washington University, pers. comm., 1998) and grows in openings within 
Pinus ponderosa (ponderosa pine) and Pseudotsuga menziesii (Douglas-
fir) forest types. This vegetation type is described as the Douglas-fir 
zone by Franklin and Dyrness (1988). H. venusta is found on open, steep 
slopes (minimum of 80 percent inclination) of loose, well-drained, 
granitic weathered and broken rock fragmented soils at an elevation at 
about 486 meters (m) (1,600 feet (ft)). The type specimen for H. 
venusta was collected at a site between Tumwater and Drury in Tumwater 
Canyon, west of Leavenworth, Washington. H. venusta is restricted to 
this single population in Tumwater Canyon. The population is found in 
an area designated as the Tumwater Botanical Area by the Wenatchee 
National Forest. This designation was originally established in 1938 to 
protect a former candidate plant, Lewisia tweedyi (Tweedy's lewisia), 
that has been found to be more widespread than previously considered 
(F.V. Horton, U.S. Forest Service (Forest Service), in litt. 1938; 
Forest Service 1971). The designation for the botanical area remains 
because of the presence of Hackelia venusta and Silene seelyi (Seely's 
catch-fly), a species of concern due to its declining status.
    Three other locations within 20 km (12 mi) of the type locality 
were thought to harbor Hackelia venusta. One location near Crystal 
Creek Cirque was relocated in 1986 after not having been seen since 
1947 (Gamon 1988a). A second location near Asgard Pass was not 
discovered until 1987 (Gamon 1988a). The Asgard Pass population was 
apparently extirpated by a major landslide during 1994 or 1995 (Richy 
Harrod, Forest Service, pers. comm., 1996). A third location was 
discovered on Cashmere Mountain in August 1996 (R. Harrod, pers. comm., 
1996). The Crystal Creek and Cashmere Mountain locations occur about 10 
km (6 mi) apart and are both within the Alpine Lakes Wilderness Area of 
the Wenatchee National Forest. Elevations for these populations range 
from 1,920 to 2,255 m (6,300 to 7,400 ft). Recent information indicates 
these two high-elevation locations are a distinct taxon, different from 
the H. venusta found in the Tumwater Canyon population (Harrod et al. 
1999). The Tumwater Canyon plants have a larger white corolla, a taller 
habit, remote lower leaves, and in general, the leaves are less stiff 
and leathery. The Crystal Creek and Cashmere Mountain populations, in 
contrast, have small, blue flowers and are more compact. The population 
at Tumwater Canyon does not have individuals that are intermediate in 
these characters. Also, the Tumwater Canyon population is 
geographically and reproductively isolated from the Crystal Creek and 
Cashmere Mountain populations. The Crystal Creek and Cashmere Mountain 
populations are temporally isolated from the Tumwater Canyon population 
in relation to their local seasons and climatic zones. The Tumwater 
Canyon population flowers in spring, while the Crystal Creek and 
Cashmere Mountain populations are under several meters of snow and 
normally flower in July.
    Isozyme analysis conducted by the Forest Service indicates a clear 
separation between the Tumwater Canyon and high-elevation populations 
of Hackelia (Carol Aubry, Forest Service, pers. comm., 1998; Wilson et. 
al., in review). This analysis measures the differences in plant 
proteins (usually an enzyme) and can be used to detect genetic 
differences among populations. Dr. Robert Carr, Professor of Botany, 
Eastern Washington University, attempted specific and intraspecific 
crosses with 18 species of North American Hackelia over a 3-year period 
but was unable to produce viable seed from these crosses in the 
greenhouse. Dr. Carr indicated that he had not attempted to cross the 
Tumwater Canyon and Crystal Creek/Cashmere Mountain populations, 
primarily because of the difficulty of growing Hackelia from seed in 
the greenhouse, and the temporal differences in the two populations' 
flowering. Dr. Carr, an expert on the genus Hackelia, has confirmed on 
numerous occasions that the Tumwater Canyon and high-elevation 
populations are separate and should be considered two separate and 
distinct species (R. Carr, pers. comm., 1998, in litt. 2000). The high-
elevation species of Hackelia has been recently described and named as 
H. taylori (Harrod et al., in review). Since the Crystal Creek and 
Cashmere Mountain populations are distinct from Hackelia venusta, they 
are not the subject of this final rule and will not be further 
discussed.
    An occurrence of what was originally cataloged as Hackelia venusta 
was found in 1948 in Merritt, WA, in Chelan County, but attempts to 
relocate the site have failed. Changes in land use do not support 
growth of this species in this area anymore. The current element 
occurrence records of the Washington Natural Heritage Program designate 
this site as historic. Recent taxonomic work on the genus Hackelia 
indicates that the herbarium specimen for the Merritt site fits more 
closely into the subspecies H. diffusa var. arida. This subspecies will 
often have large white flowers and could have been misleading to the 
early plant collectors (Harrod et al., 1999; R. Harrod, in litt. 2000). 
This being the case, the Tumwater Canyon population of Hackelia venusta 
may have always been the only location for the species.

[[Page 5517]]

    In Tumwater Canyon, Hackelia venusta occurs primarily on unstable 
soils on steep rocky slopes and outcrops, though scattered individuals 
formerly occurred along a State highway roadcut and within the road 
right-of-way (ROW). The species is found entirely on Federal land 
administered by the Wenatchee National Forest. H. venusta appears to be 
somewhat adapted to natural and possibly human-caused substrate 
disturbance (R. Carr pers. comm., 1998). Although potential habitat for 
this species is widespread in Tumwater Canyon, the plant is scattered 
throughout an area of less than 1 hectare (ha) (2.5 acres (ac)).
    In 1968, the taxon appeared ``limited to a few hundred acres'' 
(Gentry and Carr 1976), and in 1981 the population was estimated to 
have 800 to 1,000 plants. In 1984, and again in 1987, fewer than 400 
individuals were found over an area of approximately 5 ha (12 ac) 
(Gamon 1988a). Personal observations by Ted Thomas (Service) (in 
cooperation with Richy Harrod (Forest Service) and Paul Wagner, 
Washington Department of Transportation (WDOT)), using an intensive 
search and count method on May 11, 1995, revealed fewer than 150 
individuals growing on less than 1 ha (2.5 ac) of suitable habitat. 
According to Dr. Carr, the area occupied by H. venusta is greatly 
reduced, and the number of individual plants has seriously declined 
since he first visited the Tumwater Canyon population in the early 
1970s (R. Carr, pers. comm., 1996). Although earlier counts were 
conducted by different workers using different techniques, the 
population size shows a clear downward trend.
    During the late 1990s, and since the publication of the proposed 
rule to list the species on February 14, 2000 (65 FR 7339), the 
population of H. venusta has been monitored on an annual basis. In May 
2000, nearly 300 plants were counted, and in May 2001, the number of 
plants in the population approached 500 plants (Lauri Malmquist, Forest 
Service, in litt. 2000, pers comm., 2001). The increase in the 
population size can be attributed to several events that have occurred 
in the past 7 years within the habitat for the species. Wildfires 
burned through Tumwater Canyon in 1994, resulting in both positive and 
negative effects on H. venusta habitat. The primary positive outcome 
was that the forest canopy was reduced, creating less shade and 
competition, and more open growing space that created new, suitable 
sites for the natural regeneration and establishment of H. venusta 
seedlings. The negative impact is the increased potential of landslides 
when wildfire removes overstory vegetation. Additionally, the Forest 
Service has been proactive in their treatment of the nonnative noxious 
weed problem within Tumwater Canyon. To reduce the nonnative plant 
threat to H. venusta, the Leavenworth Ranger District staff, Wenatchee 
National Forest, have both removed weeds by hand and carefully applied 
herbicides to them in H. venusta habitat. This project was implemented 
in 1999 and 2000, emphasizing treatment to the habitat directly 
adjacent to the State highway where invasive species tend to become 
established and then spread into the remainder of the population. (R. 
Harrod, pers comm., 2001).
    Lastly, during the winter of 2000, the Forest Service, in 
cooperation with the WDOT and the Service, implemented a restoration 
project within the habitat of Hackelia venusta. About 35 small trees 
and one very large standing dead tree were felled and removed from the 
site (L. Malmquist, in litt. 2001; R. Harrod, pers. comm., 2000), using 
a deep snowpack to avoid impacts to the soil and protect the dormant H. 
venusta population. Each of these projects reduced shade; increased 
light onto the slope; reduced competition for light, water, and 
nutrients with native and nonnative trees, shrubs, and weeds; and 
provided new germination substrates for the establishment of H. venusta 
seedlings.

Previous Federal Action

    Section 12 of the Act (16 U.S.C. 1541) 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, designated as House Document No. 94-51, was 
presented to Congress on January 9, 1975. We published a notice in the 
July 1, 1975, Federal Register (40 FR 27823) announcing our decision to 
treat the Smithsonian 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 those plants. 
Hackelia venusta was included in this petition as an endangered 
species.
    On December 15, 1980, we published a Notice of Review for plants 
(45 FR 82480) that included Hackelia venusta as a category 1 candidate 
species. Category 1 candidates were those species for which we had on 
file substantial information on biological vulnerability and threats to 
support preparation of listing proposals. The plant notice revision of 
September 27, 1985 (50 FR 39525), included H. venusta as a category 2 
candidate. Category 2 candidates were those species for which 
information in our possession indicated that proposing to list as 
endangered or threatened was possibly appropriate, but for which 
conclusive data on biological vulnerability and threats were not 
currently available to support a proposed rule. Pending completion of 
updated status surveys, the status was changed to category 1 in the 
February 21, 1990, Notice of Review (55 FR 6183). In the September 30, 
1993, Notice of Review (58 FR 51144), H. venusta remained a category 1 
candidate.
    In the February 28, 1996, Notice of Review (61 FR 7596), we 
discontinued the use of multiple candidate categories and considered 
the former category 1 candidates as simply ``candidates'' for listing 
purposes. However, in that Notice of Review, Hackelia venusta was 
removed from the candidate list due to questions regarding the species' 
taxonomic status. An updated status review, completed in June 1997, 
reflected the new taxonomic information that determined only a single 
population of H. venusta currently existed. In the October 29, 1999, 
Notice of Review (64 FR 57534), H. venusta was included as a candidate 
species with a listing priority of 2.
    We published a proposed rule to list the species as endangered on 
February 14, 2000 (65 FR 7339). The final rule for Hackelia venusta was 
delayed because of the need to focus our limited listing resources on 
listing actions that were under court order or settlement agreement 
during fiscal year 2001 which did not include H. venusta.
    In March 2000, the Forest Service consulted with the Service on a 
restoration project to improve the habitat where Hackelia venusta is 
found. In an informal conference report, we concurred that the project 
``was not likely to jeopardize the continued existence'' of H. venusta. 
If the species was listed in the future, the Forest Service concluded 
that the determination of effects for the project ``may affect, not 
likely to adversely affect'' the species (Service 2000).
    On October 2, 2001, a consent decree was entered to settle listing 
litigation with the Center for Biological Diversity, Southern 
Appalachian Biodiversity Project, Foundation for Global Sustainability, 
and the California Native Plant Society which requires us to complete 
work on a number of species proposed for listing. Under this 
settlement, we will issue several final listing decisions, including a 
final decision for Hackelia venusta. The consent decree requires us to 
send a final listing determination for this species to the Federal 
Register by

[[Page 5518]]

February 6, 2002 (Center for Biological Diversity, et al. v. Norton, 
Civ. No. 01-2063 (JR) (D.D.C.)). On November 7, 2001, we reopened the 
comment period for an additional 30 days to accommodate the public 
notice requirement of the Act (66 FR 56265).

Summary of Comments and Recommendations

    In the February 14, 2000, proposed rule (65 FR 7339), we requested 
all interested parties to submit factual reports, information, and 
comments that might contribute to the development of the final listing 
decision. We contacted appropriate State agencies, county and city 
governments, Federal agencies, university scientists, consulting 
organizations, conservation organizations and other interested parties 
and requested them to comment. Following the publication of the 
proposed rule, we received 20 written comments during the 60-day 
comment period. Comments were received from a variety of sources, 
including three Federal agencies, three Washington State agencies, 
three non-governmental organizations, four botanical and environmental 
consultants, one university, and six individuals. We reopened the 
comment period on November 7, 2001 (66 FR 56265) for 30 days and 
requested any new information from the public on the species since 
publication of the proposed rule. We published a legal notice in the 
Wenatchee World newspaper on November 13, 2001. We received an 
additional 12 comments during the second comment period, although three 
of these commenters had provided comments during the first comment 
period. Therefore, we received comments from a total of 29 respondents.
    All 29 commenters supported the listing of Hackelia venusta as 
endangered. Several commenters provided new information on the current 
status of the species, and information on new threats to this single 
population of the H. venusta, which we have incorporated into this 
final rule. We have addressed each of the substantive issues raised by 
commenters by grouping the comments into four issues that are discussed 
below.
    Issue 1: The overwhelming comment received from 28 of the 29 
commenters was that designation of critical habitat for Hackelia 
venusta is not prudent. The principal concern is the increased risk of 
collection of the species that would occur from the publication of 
maps. Only one commenter supported critical habitat designation, 
although he admitted that designation of critical habitat would 
increase collection pressure on the population.
    Our Response: Under the critical habitat section in the proposed 
rule, we stated that it was prudent to designate critical habitat for 
Hackelia venusta because it did not appear that collection of the 
species was a threat to its existence. However, information provided in 
the ``Summary of Factors Affecting the Species'' section (Factor B) of 
the proposed rule indicated otherwise. This section presented evidence 
of collection as a threat to the species. This information is 
consistent with the public comments expressing opposition to the 
designation of critical habitat for H. venusta. Only one commenter 
supported the designation of critical habitat, although this letter 
offered no substantive reason for this support. We are supported in our 
determination of a not prudent finding for the designation of critical 
habitat by a consensus of scientists, land managers (Federal, State, 
and county), professional botanists, local wildflower enthusiasts, non-
governmental organizations, and environmental and botanical 
consultants. Each of these commenters expressed concern that the 
publicity associated with designating critical habitat for H. venusta 
would increase the threat of collection of the species, which exists in 
only one location.
    Twenty commenters noted that they have witnessed, or were aware of 
collection of the species; many of these commenters admitted they have 
personally collected the species for herbarium or voucher specimens. 
One commenter presented information about a field botany class that had 
extensively collected the species on a taxonomy outing (Florence 
Caplow, Calypso Consulting, in litt. 2000). The rarity of the species 
was not known to the class or the instructor until they had returned to 
the laboratory to key and identify the plant. During the summer of 
2000, while Forest Service personnel were counting the number of plants 
in the population and monitoring the habitat, they witnessed collection 
of a large individual specimen of Hackelia venusta and reported the 
action to our office the following day (L. Malmquist, pers. comm., 
2000; J. Brickey, in litt. 2001; Terry Lillybridge, Forest Service, in 
litt. 2001; and R. Harrod, pers. comm., 2000). Forest Service personnel 
suspect the collector had purposely targeted a specific individual 
plant from the population because it was full, vigorous, and attractive 
(L. Malmquist, pers. comm., 2000). The specific plant had caught the 
attention of the Forest Service botanists as a particularly enticing 
plant, and its absence and the hole left from it being removed was 
easily noticed. Another commenter stated that ``rare plants bring a lot 
of money'' to collectors and designation of critical habitat would 
further advertise the species' presence, beyond listing of the species, 
so that it may be increasingly pursued (D. Werntz, in litt. 2000).
    The District Ranger for the Leavenworth Ranger District commented 
that a critical habitat designation is not desirable, and it is against 
Forest Service policy (Forest Service Manual 2671.2) to make public the 
location of proposed, endangered, threatened, or sensitive species. 
This policy is consistent with the Thomas Bill (Pub. L. 105-391, 
section 207, 16 U.S.C. 5937), which was enacted to give the National 
Park Service the authority to withhold from the public any specific 
locality data for endangered, threatened, and rare species or 
commercially valuable resources within a park. The Forest Service 
believes that divulging locations or producing maps of Hackelia venusta 
habitat would greatly compromise their ability to protect the species 
on Forest Service lands where it occurs. Additionally, he commented 
that publicizing the location of critical habitat for this species was 
contrary to the ongoing coordination and Cooperative Agreement between 
Washington State's Natural Heritage Program, the Forest Service, and 
the Service, which includes a mutual agreement to not make public the 
location of proposed, endangered, threatened, or sensitive species.
    It is not possible to designate critical habitat without increasing 
the public's attention to the species' location, and increased 
collection pressure will adversely affect the species and degrade its 
habitat. A single, heavily used highway allows access to the species' 
single location. While the species is in bloom, the plant population is 
easily visible. We have designated critical habitat for other 
attractive plants that were much less accessible to collectors, such as 
Hudsonia montana (mountain golden heather). Hudsonia montana was 
collected extensively and dwindled to only two plants soon after 
critical habitat was designated (Nora Murdock, Service, pers. comm., 
2000). The situation for Hackelia venusta is comparable to the Hudsonia 
montana example, although the site location for H. venusta is more 
accessible to potential collectors than the more remotely located 
Hudsonia montana. We believe that because of the highly accessible 
location of this species, a designation of critical habitat would

[[Page 5519]]

increase collection and thereby increase the risk of extinction to this 
species.
    Collection of Hackelia venusta has been documented for more than 35 
years (R. Carr, in litt. 2000). The species has been collected for 
scientific purposes, by random visitors who were likely unaware of the 
rarity of the species, and perhaps by plant collectors who have 
purposely visited the site to collect the species. Those who have 
collected the species in the past for scientific purposes have observed 
the plant population decline to a low of 150 plants, and the spatial 
distribution of the suitable habitat has dwindled to less than 1 ha 
(2.5 ac) (T. Thomas, pers. obs., 1995, with R. Harrod and P. Wagner). 
These scientists are now aware of the extreme rarity and status of the 
species and seek its protection, without the designation of critical 
habitat (R. Carr, in litt. 2000; K. Robsen, in litt. 2001; R. Crawford, 
in litt. 2001; T. Lillybridge, in litt. 2001; William Null, in litt. 
2001; E. Guerrant, in litt. 2001; Sarah Reichard, University of 
Washington, in litt. 2001). The conservation Chair of the Washington 
Native Plant Society (WNPS), on behalf of its 1,800 members, stated 
that ``the only real protection for rare plants is safeguarding of the 
specific location data and maps' (Debra Salstrom, WNPS Conservation 
Chair, in litt. 2001). In summary, the issue of long-term plant 
collection, and the high probability of continued and increased plant 
collection in the future support our determination to not designate 
critical habitat or publish associated maps for H. venusta.
    We believe anything that increases the risk of losing individuals 
in this single population, such as publicizing its location, further 
imperils the species' survival and recovery. Based on the information 
provided in the comments, the recent, continued evidence of collection 
of the species, and the highly accessible and visible location of this 
showy plant, we have reconsidered our earlier decision that designation 
of critical habitat was prudent. We have determined that the 
designation of critical habitat is not prudent for Hackelia venusta. It 
would increase the threat of collection of the species and the 
associated degradation of its habitat.
    Issue 2: Nine commenters were concerned that any increased 
visitation to the site resulting from designating critical habitat and 
publishing maps of the plant's location would increase erosion of the 
habitat and the potential for trampling Hackelia venusta. Dr. Ed 
Guerrant summarized this concern well by stating ``Even if the 
enthusiasts don't take whole plants (a common form of collection) or 
seeds, simply climbing up the very loose sandy hill on which they occur 
to photograph the plants will seriously erode and further damage their 
fragile habitat'' (E. Guerrant, in litt. 2000). Dr. Sheryl McDevitt, a 
local wildflower enthusiast, stated that the ``designation of critical 
habitat might be the most deleterious thing we could do. Aside from the 
possibility of rare plant collectors trudging up to grab their prize, a 
few amateur wildflower enthusiasts scrambling up the hill could do 
immeasurable damage to the existing plants and their habitat'' (Sheryl 
McDevitt, in litt. 2000). Other commenters having experience with H. 
venusta habitat were concerned that any activity occurring on the 
species' habitat would adversely impact the fragile, highly erodible, 
steep slope where the plants are found (Jane Wentworth, WDNR, in litt. 
2001; T. Lillybridge, in litt. 2001; L. Malmquist, in litt. 2001).
    Our Response: We agree with the commenters that the site is fragile 
and easily eroded. Just walking on the slope where the plants are found 
dislodges small rocks and boulders that can dislodge plants, crush or 
bury them by movement of the substrate. Any increased visitation would 
likely lead to increased disturbance of the habitat and trampling of 
the plants. Therefore, we have determined that designating critical 
habitat for Hackelia venusta is not prudent.
    Issue 3: Four commenters expressed concern for public safety along 
the highway, which is highly constrained in this narrow and dangerous 
stretch of Tumwater Canyon (C. Antieau, in litt. 2000). Their major 
concern was that designating critical habitat would increase public 
interest in the species, thereby promoting increased pedestrian traffic 
to visit the site, causing safety issues for pedestrians and motorists, 
in addition to the increased threat of collection. WDOT also strongly 
opposes designation of critical habitat for Hackelia venusta, 
especially because of their concern that as more people walk on the 
steep, unstable slope, it will increase the probability that rocks and 
other debris will be dislodged and fall down the slope onto the 
highway, endangering auto traffic and their occupants or pedestrians on 
the roadway (F. Caplow, in litt. 2001).
    Our Response: Public safety is not a factor in the evaluation of 
whether or not designation of critical habitat is prudent. However, we 
are concerned about public safety, and recognize the issues associated 
with this narrow stretch of highway. We have cooperated with WDOT on 
developing their ``Management Plan for Rare Plant Species in Tumwater 
Canyon'' (WDOT 2000).
    WDOT constructed a small asphalt roadside turnout directly below 
and on the same side of the highway as the Hackelia venusta population 
during the spring of 2000. This turnout was constructed to provide a 
safe place for highway crews to park their vehicles in the narrow 
canyon when conducting road maintenance. However, because this turnout 
gave people greater access to the H. venusta population, the Forest 
Service coordinated with WDOT to remove the turnout in order to protect 
the plant species and its habitat (L. Malmquist, in litt. 2001). By 
removing the turnout, it also removed some of the danger to pedestrians 
who would stop to photograph the scenery or collect the plant.
    Issue 4: Many commenters mentioned that because the species is 
found entirely on Federal land in an area under special management 
designation as the Tumwater Botanical Area, where the conservation and 
protection of Hackelia venusta and other rare plants is the primary 
management goal, it would be a redundant effort to designate critical 
habitat for the species. Consensus among these commenters was that the 
greatest benefit afforded to this species would be to determine that 
the designation of critical habitat is not prudent. Several of these 
commenters felt that the most effective use of funds would be for us to 
continue to cooperate with the Forest Service, WDOT, and WDNR on 
research and habitat restoration actions that would benefit the species 
and its habitat (R. Crawford, in litt. 2001; F. Caplow, in litt. 2001).
    Our Response: We have determined that designation of critical 
habitat for Hackelia venusta is not prudent (see responses to Issue 1 
and 2). Consideration of whether ongoing special management is 
sufficient to exempt a critical habitat designation is not necessary 
unless we determine that critical habitat is prudent. We do, however, 
encourage the cooperative endeavors of State and Federal agencies in 
their management of H. venusta and its habitat.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we have sought the expert opinions of at least three 
appropriate and independent specialists regarding our proposal to list 
Hackelia venusta. The purpose of these reviews is to ensure that 
listing decisions are based on scientifically sound data, assumptions, 
and analyses. We sent these peer reviewers copies of the

[[Page 5520]]

proposed rule immediately following its publication in the Federal 
Register. All the peer reviewers who responded agreed with listing, 
supported our determination that collection pressure is a serious 
threat, and opposed designation of critical habitat. We have 
incorporated their comments into this final determination (many are in 
the ``Summary of Comments'' section).

Summary of Factors Affecting the Species

    Section 4 of the Act and regulations (50 CFR Part 424) promulgated 
to implement the listing provisions of the Act set forth the procedures 
for adding species to the Federal lists. We may determine a species to 
be endangered or threatened due to one or more of the five factors 
described in section 4(a)(1). These factors and their application to 
Hackelia venusta (showy stickseed) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 
of its Habitat or Range

    The range of Hackelia venusta has been reduced to a scattered 
distribution occupying less than 1 ha (2.5 ac) in Tumwater Canyon, 
entirely on Federal lands of the Wenatchee National Forest. This 
restricted population consisted of approximately 500 plants in 2001 (L. 
Malmquist, pers. comm., 2001) and constitutes the sole population of 
Hackelia venusta.
    The primary loss of habitat for Hackelia venusta has resulted from 
changes in habitat due to plant succession in the absence of fire. Fire 
suppression has been a factor in reducing the extent of the Tumwater 
Canyon population (Gamon 1988a; Gamon 1988b; D. Werntz, in litt. 2000). 
Wildfires play a role in maintaining open, sparsely vegetated sites as 
suitable habitat for H. venusta, a requirement of this shade-intolerant 
plant (R. Carr, pers. comm., 1998, in litt. 2000). The species prefers 
habitat that has been burned, has little competing vegetation (D. 
Werntz, in litt. 2000), and likely has soil low in organic matter (R. 
Carr, pers. comm., 1998). The species has expanded its distribution 
into canopy openings created by a wildfire in 1994, where it was not 
previously found (T. Thomas, pers. obs. 1998; P. Wagner, in litt. 
2000). These plants are all found in close proximity to the original 
population and are probably offspring of the existing population. Seeds 
were likely carried to the open substrate by wind or gravity, and 
germination was aided by the increase in light and moisture within 
these canopy gaps where there is reduced competition from native trees 
and shrubs and noxious weeds.
    Two nonnative, Washington State-listed noxious weeds (Ch. 16, WAC 
and Ch. 17.10 RWC 1997) occur within the habitat of Hackelia venusta in 
Tumwater Canyon. Linaria dalmatica (dalmatian toadflax) and Centaurea 
diffusa (diffuse knapweed) are present along the roadside, and have 
increased in their numbers and distribution during the 1990s, and have 
encroached into the population of H. venusta (J. Wentworth, in litt., 
2001). During visits to the H. venusta population in 1995, 1996, 1997, 
and 1998, the Service (T. Thomas, pers. obs.) noted that the cover and 
distribution of the noxious weeds had increased over this 1995-1998 
time period. Without intervention, these species have the ability to 
completely outcompete H. venusta and replace native vegetation, and 
eventually dominate the site (J. Wentworth, in litt. 2001).
    Highway maintenance activities are an ongoing threat. The highway 
is sanded during winter months, and occasionally a mixture of sand and 
salt is applied, affecting the immediate roadside habitat where 
Hackelia venusta is found. Highway maintenance activities involving the 
clearing of landslide material from the highway ROW resulted in the 
destruction of approximately 50 H. venusta individuals several years 
ago (R. Harrod, pers. comm., 1997, 2001). Although the roadsides have 
not been sprayed with herbicides in recent years by WDOT, spraying did 
occur for a considerable period of time prior to 1980. The residual 
effect of herbicide spraying on H. venusta is unknown. Some herbicides 
are known to be resident in the soil for long periods of time, 
affecting the plants that persist there. In 1999 and 2000, the 
application of herbicides by Forest Service personnel was used as a 
method for reducing the amount and distribution of nonnative, noxious 
weeds. Although they were used with great caution by Forest Service 
staff with knowledge of H. venusta's presence, the threat from 
herbicide drift and residue remains.
    Small surface erosion events and large landslides of the unstable 
slope where the Hackelia venusta population is located are also a 
threat to the species. The steepness of the slope exceeds 100 percent 
(45 degree) inclination in many places, and the slope's instability 
constitutes a significant threat as a major landslide could bury the 
entire population (Gamon 1997). The threat of soil being dislodged and 
the burying, trampling, or dislodging of plants below these soil 
releases has been witnessed as more people visit the habitat to 
photograph or collect the plant (Pam Camp, in litt. 2000; Susan 
Ballinger, in litt. 2000; Joan Frazee, Washington Native Plant Society, 
in litt. 2000; F. Caplow, in litt. 2000; K. Robson, in litt. 2001). The 
potential for slumping (deep-seated mass movement) has increased since 
1994, when wildfires burned through the forest in Tumwater Canyon where 
H. venusta is located. The reason for a higher potential for landslides 
is that water uptake by trees and other vegetation that were killed by 
the 1994 fire is reduced plus there is no transpiration from the 
vegetation, therefore there is more soil water. This is a case where 
the response to fire may have negative consequences. Another 
contributing factor is that when tree roots decompose, their ability to 
bind soil particles and water is decreased. When this happens, the 
potential for landslides increases. A large landslide in the location 
of the Tumwater Canyon population of H. venusta would severely degrade 
the habitat and reduce the plant population.
    Although there are no data regarding the effects of automobile 
emissions on this species, such emissions should be considered a 
potential threat, given the proximity of the road to the population. 
The highway is heavily used, with 3,900 to 5,200 automobiles traveling 
daily through Tumwater Canyon, which is very narrow (WDOT 1996). 
According to population projections, 100,000 people will move into the 
State of Washington each year (Washington Office of Financial 
Management 1995). Trends for Chelan County indicate an increase from 
the current human population of 52,250 (1995) to more than 86,000 
people in the year 2020, a 39 percent increase (Washington Office of 
Financial Management 1995). A larger human population will increase the 
demands for recreational activities and bring more people to central 
Washington. Automobile emissions are likely to increase along this 
heavily traveled corridor. These emissions, containing ozone and 
sulphur and nitrate oxides, negatively affect photosynthesis of 
coniferous and herbaceous plants (Forest Service 1979).

B. Overutilization for Commercial, Scientific, or Educational Purposes

    The remaining known population is at risk of extirpation due to a 
variety of threats. The greatest threat to Hackelia venusta is the long 
history of collection pressure (R. Carr, in litt. 2000; Rex Crawford, 
Washington Department of Natural Resources (WDNR), in litt. 2001; L. 
Malmquist, in litt. 2000; Jennifer Brickey, University of Washington

[[Page 5521]]

graduate student, in litt. 2001; Kali Robson, Cowlitz County Soil and 
Water Conservation District, in litt. 2001; Ed Guerrant, Berry Botanic 
Garden, in litt. 2001) and associated physical disturbance to the 
habitat and the individual plants from people trampling the slope to 
monitor the population and photograph the plants (Clayton Antieau, 
WDOT, in litt. 2000). Regional and local botanical professionals and 
wildflower enthusiasts who are interested in observing the plant in its 
natural habitat visit the site, as well as curious individuals who have 
requested directions and information about the plant in response to 
numerous references about the rarity of the species, either in the 
local newspaper or broadcasts on the local radio station (L. Malmquist, 
in litt. 2001). The radio broadcast, which featured local rare plants, 
gave a lot of notoriety to H. venusta, and the local Forest Service 
district office experienced an increase in the number of people coming 
in to ask where they could find the species (L. Malmquist, pers. comm., 
2001).
    Wildflower collecting poses a serious threat, and future collecting 
could increase, especially if the Hackelia venusta site becomes known 
to the general public by the publication of maps or from media exposure 
(L. Malmquist, in litt. 2001). H. venusta has been collected by 
scientists, amateur wildflower enthusiasts, and random visitors to the 
population for more than 30 years (R. Carr, in litt. 2000; R. Harrod, 
in litt. 2000; F. Caplow, in litt. 2000; L. Malmquist, in litt. 2001; 
R. Crawford, in litt. 2001). The Tumwater Canyon population is easily 
accessible to the public because it is located near a heavily used 
highway with a turnout directly across the road. Amateur and 
professional botanists know of the location of the H. venusta 
population, and their collecting activities likely have reduced the 
number of plants in the population and have degraded the habitat (Gamon 
1997; R. Carr, in litt. 2000; Glenn Hoffman, Forest Service, in litt. 
2000; R. Harrod, in litt. 2000; R. Crawford, in litt. 2000, 2001, F. 
Caplow, in litt. 2001).
    In May 1998, representatives from the Service, the Forest Service, 
and Eastern Washington University witnessed a person collecting the 
plant as they inspected the Hackelia venusta site (T. Thomas, pers. 
obs., 1998; Jon Gilstrom, in litt. 2000; R. Harrod, in litt. 2000). The 
species was also witnessed being collected while Forest Service 
personnel monitored the plant population in the spring of 2000 (L. 
Malmquist, pers. comm., 2000, in litt. 2001). Both incidents, and the 
large number of comments we received about collection of the plant, 
indicate that the species, when in bloom, is eye-catching and 
sufficiently attractive to cause someone to stop and remove the plant, 
presumably for personal use. Not only does the removal of plants cause 
a loss of reproductive potential, but trampling the site to access the 
plants could have a devastating effect on the remaining plants.

C. Disease or Predation

    Disease is not currently known to be a threat to this species. No 
livestock or wildlife are known to graze on Hackelia venusta.

D. Inadequacy of Existing Regulatory Mechanisms

    Although the known population of Hackelia venusta is located in an 
area designated as a special management area, the species remains 
vulnerable to threats. The Tumwater Canyon Botanical Area was 
designated by the Wenatchee National Forest in 1938 because of the 
occurrence of Lewisia tweedyi. Lewisia tweedyi has since been found to 
be more widespread than previously known and is no longer a species of 
concern for the area. The Wenatchee National Forest has maintained the 
Botanical Area designation and has implemented special management 
specifically targeted to conserve rare species, such as H. venusta and 
Silene seelyi. Both species are listed on the Forest Service Regional 
Forester's Sensitive Species List, which requires the Forest Service to 
maintain or enhance the viability of these species by considering the 
species in their project biological evaluations, and to mitigate 
actions that may adversely affect the species. The Forest Service also 
prohibits the collection of native plants without a permit, although 
this regulation has been difficult to enforce (R. Harrod, pers. comm., 
1998). Silene seelyi grows in rock outcrop crevices near where H. 
venusta is located, but it does not occupy the talus habitat where H. 
venusta is found.
    Management activities in the Botanical Area have emphasized 
botanical values (T. Lillybridge, pers. comm., 1998). In 2000, the 
Forest Service developed a habitat restoration plan in which they 
conducted an environmental analysis, conferenced with us, and 
implemented restoration activities to improve and restore Hackelia 
venusta and Silene seelyi habitat. The Botanical Area is also managed 
as a designated Late-Successional Reserve (LSR) under the Northwest 
Forest Plan, which permits some silvicultural and fire hazard reduction 
treatments (Forest Service and Bureau of Land Management 1994).
    WDOT developed a management plan, ``Final Management Plan for Rare 
Plant Species in Tumwater Canyon, Wenatchee National Forest with 
associated Best Management Practices'' (BMPs) (WDOT 2000). This plan 
provides guidance and BMPs for road crews conducting maintenance 
activities that are undertaken along the stretch of the highway in 
Tumwater Canyon that Hackelia venusta occupies (WDOT 2000). Funding for 
maintenance activities is covered through base allocations to keep the 
highway cleared of snow, debris, and overhanging vegetation, the 
guidelines outlined in the plan are implemented during the course of 
routine maintenance operations. The management practices outlined in 
the plan enable WDOT crews to accomplish maintenance goals without 
harming the plant or its habitat. The plan was developed in 
coordination with the Forest Service, WDNR, and the Service. Funding 
for implementation of this plan cannot be assured on an annual basis.
    The Washington Natural Heritage Program, in coordination with the 
Wenatchee National Forest, also developed management guidelines for 
Hackelia venusta in 1988 (Gamon 1988b). The plan contained 
recommendations that specific actions be taken to protect the plant on 
National Forest land. These guidelines included the recommendation that 
the Wenatchee National Forest develop a species management guide to 
provide management direction for the habitat of this species. The 
Wenatchee National Forest developed a draft management guide several 
years ago, but has not yet finalized it (T. Lillybridge, pers. comm., 
1997).
    The WDNR designated Hackelia venusta as endangered in 1981 
(Washington Natural Heritage Program 1981), and the species designation 
has been retained in subsequent updates of the State's endangered 
species list. However, this listing does not provide any regulatory 
protection for the plant.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Low seed production, as well as low genetic variation, are factors 
in the decline of Hackelia venusta. At the Tumwater Canyon site, an 
estimated high proportion (60 to 70 percent) of H. venusta seeds did 
not develop in 1984 (Barrett et al. 1985). Fruit development was poor 
on many plants; only a few individuals exhibited mature fruit 
development. It is unknown why this occurred, but low genetic variation 
may

[[Page 5522]]

have contributed to poor reproduction success (R. Carr, in litt. 2000; 
D. Werntz, in litt. 2000). This reduced reproductive potential may be a 
major factor in the reduction of plants at the type locality. The age 
structure of the extant population at Tumwater Canyon, poor seed 
production and germination of new seedlings, and historical estimates 
of population size indicate that the population is declining (Barrett 
et al. 1985; Gamon 1997), although recent Forest Service monitoring of 
the population has shown that the population has increased during the 
period from 1995 to 2001 (L. Malmquist, pers. comm., 2000; in litt. 
2001; P. Wagner, in litt. 2000). The increase in population size can 
likely be attributed to the improved habitat conditions brought on by 
restoration activities and the effects of a wildfire that burned 
through Tumwater Canyon in 1994 (see our response for Issue 4 in the 
(``Summary of Comments and Recommendations'')).
    The small size of the Hackelia venusta population is a major 
problem. Seedling establishment is most critical, and trampling may 
significantly affect the germination of seedlings (R. Carr, pers. 
comm., 1998, in litt. 2000; K. Robson, in litt. 2001). Human activities 
along the roadside turnout at the Tumwater Canyon site represent a 
significant threat to plants nearest the turnout. Motorists use the 
area to view the Wenatchee River, often venturing over the guardrail 
and along the bank below the road. Plants on this bank are damaged by 
trampling, burial by loose rock, and root exposure as a result of human 
traffic on the unstable slopes (Gamon 1997).
    Fire suppression during this century is likely a factor in the 
reduced spatial distribution of the Tumwater Canyon population. 
Historically, fuels in the forest type where Hackelia venusta is found 
were rarely at high levels because of the frequent fires that consumed 
forest floor fuels and pruned residual trees (Agee 1991). In the past, 
fires suppressed the encroachment of woody vegetation and maintained 
open areas more conducive to H. venusta reproduction and growth. 
Continued suppression of fires in this forest type could bring about 
additional losses to suitable habitat (Barrett et al. 1985; Gamon 1997; 
D. Werntz, in litt. 2000).
    Competition from Linaria dalmatica (dalmatian toadflax) and 
Centaurea diffusa (diffuse knapweed) is a threat to Hackelia venusta 
(J. Wentworth, in litt. 2001). Both of these noxious weeds outcompete 
many native plant species through uptake of water and nutrients, 
interference with photosynthesis and respiration of associated species, 
and production of compounds that can directly affect seed germination 
and seedling growth and development. These noxious weeds co-occur with 
H. venusta at the Tumwater Canyon site and have become more widespread 
on the available habitat (J. Wentworth, in litt. 2001).
    The species' habitat is threatened by plant succession in the 
absence of fire (D. Werntz, Northwest Ecosystem Alliance, in litt. 
2000) and by competition with nonnative plants (R. Harrod, pers. comm., 
1996, 2001; Ted Thomas, Service, pers. obs., 1995 through 1998), as 
well as from native trees and shrubs that have become established on 
the site. Other threats include the mass-wasting or erosion of soil 
that occurs on these unstable slopes and from highway maintenance 
activities. These erosion events (either small-scale surface erosion or 
large landslides) are not predictable in timing, frequency, or 
magnitude. However, large landslides have occurred within Tumwater 
Canyon in close proximity to the Hackelia venusta population. The last 
time a large landslide occurred, which was in 1992, the road was closed 
for emergency repairs by WDOT. The repairs undercut the slope and up to 
50 Hackelia venusta plants were destroyed and removed from the habitat 
of Tumwater Canyon (R. Harrod, pers. comm., 2001).
    The species previously occurred in the road ROW which, although 
maintained by WDOT, is Federal land. In the past, road salting and 
herbicide spraying were probable factors in reducing the vigor and 
number of Hackelia venusta in the ROW. Currently, WDOT maintenance 
crews rarely apply road salt and, when they do, they apply it in a 
diluted, 20:1 ratio with road sand (Luther Beaty, WDOT, pers. comm., 
1995). Since 1998, however, WDOT has been using de-icers on the roadway 
during winter months. The disappearance of H. venusta along the roadcut 
and ROW corresponds to the WDOT's use of de-icers starting in 1998. We 
believe that the de-icers may be associated with the decline of 
individual plants in the ROW and we now consider it a threat to the 
species. The de-icer used by WDOT is called CalBan, a formulation of 
calcium chloride, which is a salt. Residue from the salts build up in 
the soil and are retained on soil particles. When plants emerge in the 
spring, the concentration of salt is greater in the soil than found in 
the plant, so any moisture that is in the plant or soil surrounding the 
plant is drawn to the calcium chloride crystals, which causes the plant 
to wilt and die (J. Brickey, pers. comm., 2002).
    Herbicides have also been applied in the past by WDOT, which 
sprayed the roadside vegetation. Overspray and splatter of herbicides 
may have contributed to the reduced number of Hackelia venusta plants 
in the population. WDOT has discontinued the use of herbicides in 
Tumwater Canyon (L. Beaty, pers. comm., 1995).
    In the narrow confines of Tumwater Canyon, automobile emissions may 
continue to be a cause for reduced vigor to the Hackelia venusta 
population because ozone and oxides of sulphur and nitrate emitted from 
vehicle tailpipes negatively affect photosynthesis of plants (Forest 
Service 1979). In addition, several individual plants occur on level 
ground near the roadside turnoff and are threatened with trampling and 
collecting.
    The small number of individuals (about 500 plants) remaining in the 
sole population located in Tumwater Canyon makes Hackelia venusta 
vulnerable to extinction due to random events such as slope failure 
(mass-wasting or surface erosion) or drought. A single random 
environmental event could extirpate a substantial portion or all of the 
remaining individuals of this species and cause its extinction. Also, 
changes in gene frequencies within small, isolated populations can lead 
to a loss of genetic variability and a reduced likelihood of long-term 
viability (Franklin 1980; Soule 1980; Lande and Barrowclough 1987; R. 
Carr, in litt. 2000).
    We have carefully assessed the best scientific and commercial 
information available concerning the past, present, and future threats 
faced by Hackelia venusta in developing this final rule. Currently, 
only one known population of H. venusta exists. The plant is threatened 
by a long history of plant collection and the physical degradation of 
the habitat associated with people walking on the steep, easily eroded 
substrate where the species is found. Habitat modification associated 
with fire suppression, competition and shade from native shrubs and 
trees and nonnative noxious weeds, maintenance of the highway located 
near the population, poor seed development, low reproductive capacity, 
and incidental loss from human trampling, threaten the continued 
existence of this species. Also, the single, small population of this 
species is particularly susceptible to extinction from random 
environmental events such as rock slides. This species is in danger of 
extinction ``throughout all or a significant portion of its range'' 
(section 3(6) of the Act) and, therefore,

[[Page 5523]]

meets the Act's definition of endangered.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as-(i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species, and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographic area occupied by the species at the time it is listed in 
accordance with the provisions of section 4 of the Act, upon a 
determination that such areas are essential for the conservation of the 
species. ``Conservation'' means the use of all methods and procedures 
necessary to bring an endangered or threatened species to the point at 
which listing under the Act is no longer necessary.
    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 the 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 human activity, and 
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. We find that 
designation of critical habitat is not prudent for Hackelia venusta.
    We are mindful that several court decisions have overturned 
determinations for 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)). However, based on the standards provided in those 
judicial decisions, a not prudent critical habitat finding for Hackelia 
venusta is warranted.
    Hackelia venusta consists of only one population made up of 
approximately 500 individual plants and cannot recolonize habitat 
quickly. Because this species occupies such a limited area, even a 
single person walking on the talus habitat where it occurs could cause 
significant damage to the species and its habitat that could lead to 
the extirpation of the entire population. Increased visits to the 
population location, stimulated by critical habitat designation and 
related maps and publicity, even without deliberate collecting, could 
adversely affect the species due to the associated increase in 
trampling of its fragile habitat. We believe that the designation of 
critical habitat, and the required public dissemination of maps and 
descriptions of the population site, would significantly increase the 
degree of threat to this species. Publicity could generate an increased 
demand and intensify collecting pressure or facilitate opportunities 
for vandalism. This species has already been subjected to excessive 
collecting by collectors. Increased publicity and a provision of 
specific location information associated with critical habitat 
designation could result in increased collection from the population. 
Although the taking and reduction to possession of endangered plants 
from land under Federal jurisdiction is prohibited by the Act, the 
taking prohibitions are difficult to enforce. We believe the 
publication of critical habitat descriptions would make H. venusta more 
vulnerable to collectors and curiosity-seekers and would increase 
enforcement problems for the Forest Service, and we have documented 
evidence that collecting and other human disturbance have already 
detrimentally affected this species.
    Our concerns of increased human threats to the species from the 
publication of maps of the population site are based on specific 
experience. Another federally listed mountain plant (Hudsonia montana) 
for which critical habitat was designated was severely impacted by 
collectors immediately after the maps were published. This collection 
happened even though this plant was not previously known to be desired 
by rare plant collectors and had never been offered for sale in 
commercial trade. Some of the collectors appeared in the local Forest 
Service district offices, with the critical habitat map from the local 
newspaper in their hands, asking directions to the site (Nora Murdock, 
Service, pers. comm., 2000). Such incidents are extremely difficult to 
document. The only reason we were able to do so in this case was 
because, for this very rare and restricted plant, every individual was 
mapped. When plants vanished from our permanent plots, we were able to 
find the carefully covered excavations where they had been removed. 
Otherwise, we would have only observed a precipitous crash in the 
populations without knowing that the cause was directly attributable to 
collection, apparently stimulated by the publication of specific 
critical habitat maps. In the case of Hackelia venusta, a local radio 
station interviewed a professor from the University of Washington, 
Center for Urban Horticulture, which was fire bombed in spring, 2001. 
Apparently the professor repeated several times in the interview that 
propagated H. venusta plants were lost in the fire bombing. After this 
announcement, the local Forest Service Ranger District received 
requests to know the location of the plant (L. Malmquist, pers. comm., 
2001). Also, a Tacoma newsreporter made several inquiries to our 
Western Washington Fish and Wildlife Office about visiting the plant 
population during the spring of 2001. We declined the request with the 
concern that additional news coverage would be detrimental to the 
species or its habitat.
    It is our finding that the designation of critical habitat would 
increase threats to Hackelia venusta, and that a critical habitat 
designation would exacerbate these threats and possibly lead to 
extinction of the species; therefore a not prudent finding is 
warranted.
    Because of the precarious status of the species, the small size of 
the only surviving population, the restricted range of the species, and 
the limited amount of suitable habitat available to the species, a 
Federal action subject to consultation under section 7 of the Act that 
triggers the standard for destruction or adverse modification of 
critical habitat for H. venusta would very likely also jeopardize the 
species' continued existence. Therefore, it is doubtful that additional 
protection would be provided to this species through the designation of 
critical habitat that would not already be provided through the 
jeopardy standard. We recognize that critical habitat designation in 
some situations may provide additional value to a species, for example, 
by identifying areas important for conservation. However, for H. 
venusta, we have weighed the potential benefits of designating critical 
habitat against the significant risks of doing so and find that the 
minor benefits of designating critical habitat do not outweigh the 
potential increased threats from collection and inadvertent habitat 
degradation caused by curiosity-seekers. Therefore, we have determined 
that the designation of critical habitat for H. venusta is not prudent.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions,

[[Page 5524]]

requirements for Federal protection, and prohibitions against certain 
activities. Recognition through listing 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 the 
Service carry out recovery actions for all listed species. 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) 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) 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 destroy or 
adversely modify its critical habitat, if any has been 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.
    Federal agencies whose actions may require consultation include the 
Forest Service, Federal Highway Administration, and U.S. Army Corps of 
Engineers (Corps). State highway activity, implemented by the State and 
partly funded by the Federal Government, includes highway maintenance 
activities such as roadside vegetation control, and may be subject to 
consultation under the Act. Forest Service activities that may require 
consultation under section 7 of the Act would include fire suppression, 
activities associated with fire suppression, timber harvest, and 
habitat restoration activities. The Corps may be required to consult 
with us on proposed actions planned on the Wenatchee River, which is 
adjacent and directly below the highway ROW. The distance from the base 
of the Hackelia venusta population to the Wenatchee River is less than 
30 m (100 ft).
    Listing Hackelia venusta as endangered will provide for the 
development of a recovery plan. Such a plan would bring together 
Federal, State, and local efforts for the conservation of the species. 
The plan will establish a framework for agencies to coordinate 
activities and cooperate with each other in conservation efforts. The 
plan will set recovery priorities, assign responsibilities, and 
estimate costs of various tasks necessary to achieve conservation and 
survival of this species. Additionally, pursuant to section 6 of the 
Act, we will be able to grant funds to the State of Washington for 
management actions promoting the protection and recovery of this 
species.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
plants. All 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 the species from areas 
under Federal jurisdiction. In addition, for plants listed as 
endangered, the Act prohibits the malicious damage or destruction in 
areas under Federal jurisdiction and the removal, cutting, digging up, 
damaging, or destroying of such endangered plants in knowing violation 
of any State law or regulation, or in the course of any violation of a 
State criminal trespass law. Certain exceptions to the prohibitions 
apply to our agents and State conservation agencies.
    Our policy, published in the Federal Register on July 1, 1994 (59 
FR 34272), is to identify, to the maximum extent practicable, 
activities that likely would or would not be contrary to 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.
    With respect to Hackelia venusta, based upon the best available 
information, the following actions would not be likely to result in a 
violation of section 9, provided these activities are carried out in 
accordance with existing regulations and permit requirements:
    (1) Activities authorized, funded, or carried out by Federal 
agencies (e.g., grazing management, agricultural conversions, wetland 
and riparian habitat modification, flood and erosion control, 
residential development, recreational trail development, road 
construction, hazardous material containment and cleanup activities, 
prescribed burns, pesticide/herbicide application, and pipeline or 
utility line construction crossing suitable habitat), when such 
activity is conducted in accordance with any biological opinion issued 
by us under section 7 of the Act;
    (2) Activities on private lands that do not require Federal 
authorization and do not involve Federal funding, such as grazing 
management, agricultural conversions, flood and erosion control, 
residential development, road construction, and pesticide or herbicide 
application when consistent with label restrictions;
    (3) Residential landscape maintenance, including the clearing of 
vegetation around one's personal residence as a fire break; and
    (4) Casual, dispersed human activities (e.g., bird watching, 
sightseeing, photography, camping, hiking) in the habitat of the 
species.
    With respect to Hackelia venusta, 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 Hackelia venusta on Federal lands;
    (2) Application of pesticides/herbicides in violation of label 
restrictions;
    (3) Interstate or foreign commerce, import, or export of this 
species without a valid permit; and
    (4) Removal or destruction of the species on Federal land, or on 
non-Federal land if done in knowing violation of Washington State law 
or regulations, or in the course of any violation of a Washington State 
criminal trespass law.
    Questions regarding whether specific activities risk violating 
section 9 should be directed to our Western Washington Fish and 
Wildlife Office (see ADDRESSES section). The Act and 50 CFR 17.62 and 
17.63 also provide for the issuance of permits to carry out otherwise 
prohibited activities involving endangered plants under certain 
circumstances. Such permits are available for scientific purposes or to 
enhance the propagation or survival of the species. Requests for copies 
of the regulations regarding listed species and general inquiries 
regarding prohibitions and permits may be addressed to the U.S. Fish 
and Wildlife Service, Ecological Services, Permits Branch, 911 N.E. 
11th Avenue, Portland, OR 97232-4181 (telephone 503/231-2063; facsimile 
503/231-6243).

National Environmental Policy Act

    We have determined that an Environmental Assessment or 
Environmental Impact Statement, as defined under the authority of the

[[Page 5525]]

National Environmental Policy Act of 1969, need not be prepared in 
connection with regulations adopted pursuant to section 4(a) of the 
Endangered Species Act of 1973, as amended. 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 that 
require approval by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.). This rule will not 
impose new record-keeping or reporting requirements on State or local 
governments, individuals, businesses, or organizations. An agency may 
not conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
Control Number. For additional information concerning permits and 
associated requirements for endangered plants, see 50 CFR 17.62 and 
17.63.

References Cited

    A complete list of all references cited in this document, as well 
as others, may be requested from our Western Washington Fish and 
Wildlife Office (see ADDRESSES section).

Author

    The primary author of this final rule is Ted Thomas, Western 
Washington Fish and Wildlife Office (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, Sec. 17.12 of part 17, subchapter B of chapter I, 
Title 50 of the Code of Federal Regulations is amended, as set forth 
below.
    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

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


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                          Species
-----------------------------------------------------------      Historic range            Family        Status    When listed    Critical     Special
       Scientific name                 Common name                                                                                habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
      Flowering Plants
 
                   *                  *                  *                  *                  *                  *                  *
Hackelia venusta............  Showy stickseed.............  U.S.A. (WA).............  Boraginaceae-    E                   722           NA           NA
                                                                                       borage.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: January 30, 2002.
Marshall P. Jones, Jr.,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 02-2760 Filed 2-5-02; 8:45 am]
BILLING CODE 4310-55-P