[Federal Register Volume 78, Number 101 (Friday, May 24, 2013)]
[Proposed Rules]
[Pages 31498-31511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-12103]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R4-ES-2013-0069; 4500030113]
RIN 1018-AY73


Endangered and Threatened Wildlife and Plants; Proposed 
Threatened Status for Leavenworthia exigua var. laciniata (Kentucky 
Glade Cress)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to list 
Leavenworthia exigua var. laciniata (Kentucky glade cress), as 
threatened under the Endangered Species Act of 1973, as amended (Act). 
The effect of this regulation, if finalized, would be to conserve 
Leavenworthia exigua var. laciniata under the Act.

DATES: We will accept comments received or postmarked on or before July 
23, 2013. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES section, below) must be received by 
11:59 p.m. Eastern Time on the closing date. We must receive requests 
for public hearings, in writing, at the address shown in the ADDRESSES 
section by July 8, 2013.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box,

[[Page 31499]]

enter Docket No. FWS-R4-ES-2013-0069, which is the docket number for 
this rulemaking. You may submit a comment by clicking on ``Comment 
Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R4-ES-2013-0069; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will not accept email or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Lee Andrews, Field Supervisor, U.S. 
Fish and Wildlife Service, Kentucky Ecological Services Field Office, 
J.C. Watts Federal Building, 330 W. Broadway Rm. 265, Frankfort, KY 
40601, by telephone 502-695-0468 or by facsimile 502-695-1024. Persons 
who use a telecommunications device for the deaf (TDD) may call the 
Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, if we intend to list 
a species as endangered or threatened throughout all or a significant 
portion of its range, we are required to promptly publish a proposal in 
the Federal Register and make a determination on our proposal within 1 
year. Critical habitat shall be designated, to the maximum extent 
prudent and determinable, for any species determined to be an 
endangered or threatened species under the Act. Listing a species as an 
endangered or threatened species and designations and revisions of 
critical habitat can only be completed by issuing a rule. Elsewhere in 
today's Federal Register, we propose to designate critical habitat for 
Leavenworthia exigua var. laciniata under the Act.
    This rule consists of: A proposed rule to list Leavenworthia exigua 
var. laciniata (Kentucky glade cress) as threatened. Leavenworthia 
exigua var. laciniata is a candidate species for which we have on file 
sufficient information on biological vulnerability and threats to 
support preparation of a listing proposal, but for which development of 
a listing regulation has been precluded by other higher priority 
listing activities. This rule reassesses all available information 
regarding status of and threats to Leavenworthia exigua var. laciniata.
    The basis for our action. Under the Act, we can determine that a 
species is an endangered or threatened species based on any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) Overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
Disease or predation; (D) The inadequacy of existing regulatory 
mechanisms; or (E) Other natural or manmade factors affecting its 
continued existence.
    We have determined that the species is threatened by Factors A and 
E:
     The loss and degradation of glade habitats supporting L. 
exigua var. laciniata. Activities or factors negatively impacting L. 
exigua var. laciniata include: development, roads, utilities, 
conversion to lawns, horseback riding, off-road vehicle use, and 
changes in grazing practices and forest encroachment.
     Other natural or manmade factors, including narrow range, 
low genetic diversity, and small population size.
    We will seek peer review. We are seeking comments from 
knowledgeable individuals with scientific expertise to review our 
analysis of the best available science and application of that science 
and to provide any additional scientific information to improve this 
proposed rule. Because we will consider all comments and information 
received during the comment period, our final determinations may differ 
from this proposal.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from the public, other concerned governmental 
agencies, Native American tribes, the scientific community, industry, 
or any other interested parties concerning this proposed rule. We 
particularly seek comments concerning:
    (1) Leavenworthia exigua var. laciniata's biology, range, and 
population trends, including:
    (a) Habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat or both.
    (2) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Act (16 U.S.C. 
1531 et seq.), which are:
    (a) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and existing regulations 
that may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of this species, 
including the locations of any additional populations of this species.
    (5) Any information on the biological or ecological requirements of 
the species and ongoing conservation measures for the species and its 
habitat.
    (6) Information on the projected and reasonably likely impacts of 
climate change on L. exigua var. laciniata.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or threatened 
species must be made ``solely on the basis of the best scientific and 
commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We request 
that you send comments only by the methods described in the ADDRESSES 
section.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so.

[[Page 31500]]

We will post all hardcopy submissions on http://www.regulations.gov. 
Please include sufficient information with your comments to allow us to 
verify any scientific or commercial information you include.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Kentucky Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Previous Federal Actions

    We identified L. exigua var. laciniata as a Category 1 species in a 
notice of review published in the Federal Register on July 1, 1975 (40 
FR 27824). It remained a Category 1 species in subsequent notices 
including December 15, 1980 (45 FR 82480-82569), November 28, 1983 (48 
FR 53640-53670), September 27, 1985 (50 FR 39526-39584), February 21, 
1990 (55 FR 6184-6229) and September 30, 1993 (58 FR 51144-511920). 
Category 1 species were those taxa for which the Service had 
substantial information on file on the biological vulnerability and 
threats to support the appropriateness of proposing to list the taxa as 
threatened or endangered. However, the large number of category 1 
species created a backlog for the development and publication of the 
proposed rules. Assigning categories to species was discontinued in 
1996, and subsequently only species for which the Service had 
sufficient information on biological vulnerability and threats to 
support issuance of a proposed rule were regarded as candidate species 
(61 FR 7596). These candidate species were also assigned listing 
priority numbers (LPNs) based on immediacy and the magnitude of threat, 
as well as their taxonomic status. Leavenworthia exigua var. laciniata 
was first identified as a candidate species in the Federal Register on 
November 9, 2009 (74 FR 57804-57878) with an LPN of 3. It retained that 
LPN in 2010 (75 FR 69222-69294; November 10, 2010) and 2011 (76 FR 
66370-66439; October 26, 2011) Federal Register notices of candidate 
review.
    Elsewhere in today's Federal Register, we propose to designate 
critical habitat for L. exigua var. laciniata under the Act.

Status Assessment for L. exigua var. laciniata

Background

    In this section of the proposed rule, we discuss only those topics 
directly relevant to the listing of L. exigua var. laciniata as 
threatened.

Species Information

    L. exigua var. laciniata is an annual member of the mustard family 
(Brassicaceae) known only from two counties in Kentucky. Plants are 
about 5 to 10 cm (1.97 to 3.94 in) in height with early leaves that are 
simple with a slender petiole (central stalk of the leaf) and mature 
leaves that are sharply lobed (appear as disconnected pieces along the 
main leaf vein), somewhat squarish at the ends and arranged as a 
rosette (circular cluster of leaves) (Evans and Hannan 1990, p. 5). The 
flowers are small (3 to 6 mm (0.12 to 0.24 in)), white to lilac in 
color with four petals, green rather than lavender sepals (the outer of 
two floral leaves that make up the flower), and leafless stems. Leaves 
typically disappear by the time the plant is in fruit (Evans and Hannan 
1990, p. 6). The fruit is flat and pod-shaped.

Taxonomy and Species Description

    R. C. Rollins (1963, p. 75) described L. exigua var. laciniata as a 
new taxon in his monograph of the genus Leavenworthia. Rollins (1963, 
pp. 51, 75) stated that the rather extensive populations of L. exigua 
located in Bullitt County, Kentucky, exhibited certain distinguishing 
characteristics compared to populations in Tennessee, northern Alabama, 
and northern Georgia. The Kentucky plants, which he described as L. 
exigua var. laciniata, had longer styles (usually slender and elongate 
extension of the ovary), green instead of lavender sepals, and more 
sharply divided leaves than the typical L. exigua var. exigua. Kral 
(1983, pp. 10-18) supported Rollins' recognition of the taxon as a 
distinct variety. Kartesz (1991, p. 449) recognized the taxon by 
including it in his vascular flora checklist for the United States.
Habitat
    L. exigua var. laciniata appears to be adapted to environments with 
shallow soils interspersed with flat-bedded, Silurian dolomite and 
dolomitic limestones, which is an uncommon geological formation in 
Kentucky (Rollins 1963, p. 5; Evans and Hannan 1990, pp. 8-9). The soil 
on these horizontally bedded limestone areas is often only a few inches 
in depth or may be completely lacking in some areas (Rollins 1963, p. 
5). Because of the thin soils and underlying limestones, these 
habitats, called cedar or limestone glades, are extremely wet from late 
winter to early spring and quickly become dry in May and June. The 
natural habitat for L. exigua var. laciniata is these cedar glades 
(Baskin and Baskin 1981, p. 243), but the taxon is also known from 
overgrazed pastures, eroded shallow soil areas with exposed bedrock, 
and areas where the soil has been scraped off the underlying bedrock 
(Evans and Hannan 1990, p. 8). L. exigua var. laciniata does not appear 
to compete well with other vegetation and is shade intolerant (Evans 
and Hannan 1990, p. 14).
    Baskin and Baskin noted in 1985 (p. 378) that there were few, if 
any, undisturbed glades remaining in the southeastern United States and 
that most of these glades had been used for pasture at some point. This 
is true for the range of L. exigua var. laciniata (D. White, pers. 
obs., 2012). Like other Leavenworthia spp. (Baskin and Baskin 1985, p. 
378), L. exigua var. laciniata occurs in highly disturbed glades as 
well as lightly disturbed glades (KSNPC 2012, pp. 1-108). Many of these 
highly degraded glades are part of larger pasture areas. As the 
disturbance to the glade increases, so does the number of species of 
winter annuals (Baskin and Baskin 1985, p. 378). Within the range of L. 
exigua var. laciniata some of these highly degraded glades are now part 
of residential and commercial lawns (KSNPC 2012, pp. 1-108; pers. 
obs.).
    The taxon is not restricted to any specific soil type (Evans and 
Hannan 1990, p. 8). It appears to be more dependent upon lack of soil 
(and plant competition) and proximity of rock near or at the surface. 
It occurs primarily in open gravelly soils around rock outcrops in an 
area of the Caneyville-Crider soil association (Whitaker and Waters 
1986, p. 16). Within this soil association, L. exigua var. laciniata 
occurs on the following mapped soil types: Caneyville-rock outcrop 
complex, 6 to 40 percent slope; Caneyville silt loam, 6 to 12 percent 
slope, eroded; Caneyville-Beasley-rock outcrop complex, 12 to 30 
percent slope; Faywood-Beasley-rock outcrop complex, 25 to 60 percent 
slope; and Beasley silty clay loam, 6 to 12 percent slopes, severely 
eroded (Whitaker and Waters 1986, pp. 26-27, 29-31, 40-41; Evans and 
Hannan 1990, p. 8). Where L. exigua var. laciniata occurs on soils 
without bedrock near the surface, the soil is usually eroded to 
severely eroded with 25 to 100 percent of the original surface gone 
(Evans and Hannan 1990, p. 8).

[[Page 31501]]

Biology
    The life cycle is nearly identical for all members of the genus 
Leavenworthia (Baskin and Baskin 1981, p. 246; Solbrig 1971, p. 155). 
All are winter annuals, endemic to cedar glades or glade-like habitats 
(Baskin and Baskin 1985, p. 377). For L. exigua var. laciniata, seed 
germination occurs in September and October (Baskin and Baskin 1981, p. 
246). Baskin and Baskin (1971, p. 33; 1972, p. 1716) found that freshly 
harvested Leavenworthia spp. seeds were dormant at any temperature and 
that, once dormancy was broken, germination was prevented by high 
temperatures, regardless of moisture levels. This characteristic seems 
to protect Leavenworthia spp. from germination following short summer 
showers that temporarily moisten the glade habitats (Baskin and Baskin 
1985, p. 381) and allows it to avoid the hot, dry summer (Baskin and 
Baskin 1972, p. 1720). All seeds may not germinate each fall, allowing 
seed reserves to accumulate (Baskin and Baskin 1981, p. 246). A study 
by Baskin and Baskin (1981, p. 247) found collected L. exigua var. 
laciniata seeds germinated in a greenhouse over four autumns, although 
at drastically reduced numbers after the first year (4,907 in 1976, 190 
in 1977, 156 in 1978, and 71 in 1979).
    L. exigua var. laciniata persist through the winter as rosettes, 
and flowering begins in late February to early March (Baskin and Baskin 
1981, p. 246; Evans and Hannan 1990, p. 11). Seeds are set and plants 
die in April and May as the glade habitats dry out (Baskin and Baskin 
1985, pp. 378-379; Solbrig 1971, p. 155). At maturity, most of these 
seeds are dormant and will not germinate following dispersal, even if 
the soils are moist (Baskin and Baskin 1985, p. 379). During the summer 
these seeds undergo physical changes known as after-ripening and move 
from dormancy to conditional dormancy and, finally, become nondormant 
for fall germination (Baskin and Baskin 1985, p. 379).
    The cyclical moisture availability on the thin soils of glades and 
other habitats acts to limit the number of plant species that can 
tolerate these extremes. Consequently, very few other plants occur on 
undisturbed glades (Evans and Hannan 1990, pp. 9-10). Common associates 
of L. exigua var. laciniata include Northoscordum bivalve (false 
garlic), Scutellaria parvula (little skullcap), Sporobolus vaginiflorus 
(poverty dropseed), Viola septemloba var. egglestonii (cedar glade 
violet), and Houstonia canadensis (Canadian bluets) (Baskin and Baskin 
1981, p. 245; Evans and Hannan 1990, p. 10). In areas where the glades 
have been disturbed, native and introduced weedy species (annual and 
perennial) have invaded glades from nearby roads, fields, and waste 
areas (Baskin and Baskin 1985, p. 375).
    Areas surrounding glade openings tend to have deeper soils that 
support plants with prairie/barren affinities like Schizochyrium 
scoparium (little bluestem), Lithospermum canescens (hoary pocoon), 
Viola pedata (birdfoot violet), Echinacea pallida (pale purple 
coneflower), and Liatris aspera (tall gayfeather) (White 2004, p. 1).
Historical Range/Distribution
    L. exigua var. laciniata is a Kentucky endemic and is known from 
only northeastern Bullitt County and extreme southeastern Jefferson 
County (Evans and Hannah 1990, p. 6; Jones 2005, p. 294; White 2004, p. 
1). Populations of L. exigua var. laciniata are disjunct (separated) 
from populations of the other two varieties of L. exigua that occur in 
Alabama, Georgia, and Tennessee (Rollins 1963, p. 5, NatureServe 
Explorer 2012, p. 1).
    Information regarding the historical (prior to 1990) range and 
distribution of L. exigua var. laciniata is largely lacking. The 
original description by Rollins (1963, p. 75) notes a single specimen 
collected in a cedar glade in Bullitt County and references an earlier 
specimen collected in 1954 by H. A. Korfhage from an open field in 
Bullitt County. No other historical information regarding this taxon is 
available. The species is known from 84 occurrences including 
historical and current locations.
    Long-term, quantitative monitoring data are unavailable for this 
taxon, but the Kentucky State Nature Preserves Commission (KSNPC) has 
recorded qualitative estimates of occurrence size and quality at 3- to 
5-year intervals. These evaluations are used to rank each occurrence 
with respect to size and viability, condition of the habitat, and 
degree of threat. As an annual species, plant numbers of L. exigua var. 
laciniata can naturally fluctuate greatly from year to year based on a 
variety of factors such as seed production in past years, germination 
rates, and environmental conditions (temperature, rainfall) (Bush and 
Lancaster 2005, p. 1). As such, habitat conditions often had a greater 
influence on the evaluation of habitat viability than population 
numbers (Deb White, pers. comm., 2012). Element occurrences have been 
ranked into the following categories: A (excellent estimated 
viability), B (good estimated viability), C (fair estimated viability), 
D (poor estimated viability), O or F (field surveys failed to relocate 
the plants at the site), or X (occurrence is considered extirpated). An 
element occurrence (EO) is the basic conservation unit used by KSNPC in 
assessing species for the Natural Heritage Program. Nature Serve 
defines an EO as ``an area of land and/or water where a species or 
ecological community is or was present'' (NatureServe 2004, p. 1). The 
terms element occurrence and occurrence are used interchangeably 
throughout this document.
    Evans and Hannan (1990, pp. 9, 19-20) conducted the first rangewide 
survey for the taxon and documented a total of 71 historical and extant 
occurrences in Bullitt and Jefferson Counties. At that time, 
approximately 70 percent (42/60) of the extant occurrences were ranked 
as A, B, or C in quality (Evans and Hannan 1990, pp. 24-94). White 
(1994, pp. 2-7) reevaluated the status of the taxon in April 1994 by 
visiting the occurrences documented by Evans and Hannan (1990, pp. 19-
20) and providing updated ranks and descriptions of habitat conditions. 
White (1994, p. 4) recorded a decline in rank quality at 41 percent of 
the occurrences, with some of the occurrences decreasing by two levels 
of rank quality. Sixty-eight percent of these sites were degraded 
directly by human-related activities (e.g., house construction, lawn 
development, changes in grazing practices). Over 60 percent of the 
occurrences had quality ranks of ``D'' or were considered extirpated 
(White 1994, p. 4).
    The last rangewide survey was completed by KSNPC at 50 known 
occurrences, in April and early May of 2004 (White 2004, pp. 1-3). The 
number of plants and their condition (including flowering and fruiting) 
and general site conditions were recorded at the known occurrences. The 
results of these surveys were compared to results of previous surveys 
conducted in 1990 (Evans and Hannan 1990, pp. 19-20) and 1994 (White 
1994, pp. 2-7) for the subset of occurrences (49) that were visited in 
all 3 years.
    Of the 49 occurrences surveyed in all 3 years, 37 (76 percent) had 
decreased in quality between 1990 and 2004. This decrease in quality 
was commonly due to a reduction in the number of plants and an 
accompanying decline in habitat quality as the character of the area 
changed from rural to residential. Of those 37 occurrences that 
declined, more than 30 percent (16 of 37) were extirpated or unable to 
be relocated. Table 1 below illustrates the decline in these 49 
occurrences and their viability over this 14-year period. In 1990, 69

[[Page 31502]]

percent of these occurrences were considered to have a viability of 
fair or better. In 1994, this amount had dropped to 49 percent; and in 
2004 it was down to only 14 percent. These evaluated 49 occurrences 
represent approximately 60 percent (49 of 81) of the total population 
known in 2004. Since that time three additional occurrences have been 
identified, bringing the total known occurrences (historical and 
extant) to 84.

 Table 1--Comparison of Status Ranks for 49 Occurrences of Leavenworthia
                          exigua var. lacianata
------------------------------------------------------------------------
         Rank                  Viability           1990    1994    2004
------------------------------------------------------------------------
A....................  Excellent................       4       3       0
B....................  Good.....................       8       3       3
C....................  Fair.....................      22      18       4
D....................  Poor.....................      13      22      26
F....................  Not......................       0       0       7
                       Located..................
X....................  Extirpated...............       2       3       9
                      --------------------------------------------------
  Total..............  .........................      49      49      49
------------------------------------------------------------------------

Current Range/Distribution
    Based on our data, the species is currently limited to 61 extant 
occurrences. A total of 23 historical occurrences are considered 
extirpated or were not located by KSNPC during the most recent surveys 
(KSNPC 2012, pp. 1-108). Of the 61 extant occurrences, 43 are of poor 
quality (D-rank; 70 percent). Approximately half of these poor-quality 
occurrences are located on residential lawns, with few, if any, native 
plants. These lawn occurrences are not believed to be sustainable, due 
to competition from lawn grasses and lawn maintenance and improvement 
activities. Threats associated with lawns are further discussed under 
Factor A. A summary of current occurrence ranks for all known sites is 
listed in Table 2 below.
    Over the last 20 years, KSNPC has systematically used aerial 
photography to identify potential L. exigua var. laciniata glade 
habitat in areas of Laurel and other suitable types of limestone 
bedrock with the intent of identifying new populations within the known 
range and exploring potential areas to expand the known habitat. Very 
little potential habitat fitting these parameters has not been 
surveyed. Also, this part of the State is heavily explored because it 
is so populated and accessible; therefore, discovering any additional 
limestone glades, the only habitat known for this species, in another 
part of the region is very unlikely (D. White, pers. comm., 2012).

         Table 2--2012 Status Ranks for L. exigua var. laciniata
------------------------------------------------------------------------
                                                               Number
           Rank                        Viability             Occurrences
------------------------------------------------------------------------
A.........................  Excellent.....................             1
B.........................  Good..........................             4
C.........................  Fair..........................            13
D.........................  Poor..........................            43
F.........................  Not Located...................             7
X.........................  Extirpated....................            16
                           ---------------------------------------------
  Total...................  ..............................            84
------------------------------------------------------------------------

Land Ownership
    The majority of land on which L. exigua var. laciniata occurs is 
privately owned, although some significant occurrences are located on 
public land. The taxon does occur within two protected areas in eastern 
Bullitt County: Pine Creek Barrens Preserve, a 110 acre (44.5 ha) 
property owned and managed by the Kentucky Chapter of The Nature 
Conservancy (TNC), and Apple Valley Glades Conservation Area, with 46 
acres (18.6 ha) owned by KSNPC and another 45 acres (18.2 ha) protected 
under a permanent conservation easement held by KSNPC.
    Additionally, significant private landownerships within the range 
of L. exigua var. laciniata should be noted. Rocky Run Glade Registered 
Natural Area is a 25-acre (10.1 ha) privately owned tract of land in 
eastern Bullitt County. Also, the Future Fund Land Trust and its 
associated endowment were established to create an extensive 
``[Fredrick Law] Olmsted-like'' greenway and park system along Floyds 
Fork in Jefferson County. The Future Fund Land Trust and its associated 
endowment own nearly 500 acres (202.3 ha) within the known range of L. 
exigua var. laciniata, including parcels with all or portions of three 
known occurrences.
    Another private, nonprofit group, 21st Century Parks, is also 
working along the Floyds Fork corridor and owns several parcels with 
the taxon's range totaling almost 600 acres (242.8 ha) and containing 
part or all of two occurrences.
    Finally, a publicly owned occurrence is located within McNeely Lake 
Park, a site in southern Jefferson County owned by Louisville Metro 
Parks.

           Table 3--Significant Landownership Information for Occurrences of L. exigua var. laciniata
                             [From Kentucky State Nature Preserves Commission 2012]
----------------------------------------------------------------------------------------------------------------
                                                              Current        Most recent population  assessment
               Site                      Landowner        viability rank                   (year)
----------------------------------------------------------------------------------------------------------------
Pine Creek Barrens...............  The Nature            A...............  6,023 plants (2011).
                                    Conservancy.
Apple Valley Glade...............  KSNPC; Private w/     B...............  3,192 plants (2011).
                                    conservation
                                    easement.
McNeely Lake Park................  Louisville Metro      D...............  no estimate (2007).
                                    Parks.
Rocky Run........................  Private.............  B...............  no estimate (2008).
Floyds Fork area (two              Future Fund Land....  B...............  over 20,000 plants (2011).
 occurrences).                                           D...............  thousands of plants (2011).
Floyds Fork area.................  21st Century Parks..  C...............  325 plants (2011).
----------------------------------------------------------------------------------------------------------------

Summary of Factors Affecting the Species

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations at 50 CFR part 424, set forth the procedures for adding 
species to the Federal Lists of Endangered and Threatened Wildlife and 
Plants. Under section 4(a)(1) of the Act, we may list a species based 
on any of the following five factors: (A) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; and (E) other natural or manmade 
factors affecting its continued existence. Listing may be warranted 
based on any of the above threat factors, singly or in combination. 
Each of these factors is discussed below.

[[Page 31503]]

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

    Habitat destruction and modification have been the primary cause of 
population declines and extirpations of the L. exigua var. laciniata 
(KSPNC 2012, pp. 1-108) occurrences. Filling and/or grading of glade 
habitat for residential and commercial construction has resulted in or 
contributed to the loss of at least seven known populations (KSPNC 
2012, pp. 1-108). Conversion of glade areas to landscaped settings such 
as golf courses and residential lawns by filling, grading, and seeding 
of lawn grasses has impacted an additional five occurrences. Nearly a 
third of the extant occurrences are of low quality and occur in managed 
(e.g., residential, commercial, and agricultural) landscapes. Many of 
the extant occurrences are threatened by encroaching lawn grasses and 
nonnative plants that compete with L. exigua var. laciniata for space 
and nutrients (D. White, pers. comm., 2012). Winter annuals, such as 
Leavenworthia spp., are documented to be poor competitors (Rollins 
1963, p. 17, Kral 1983, p. 2; Baskin and Baskin 1988, p. 835). Shading 
from shrubs and trees makes habitats unsuitable for L. exigua var. 
laciniata, which is shade-intolerant (Baskin and Baskin 1988, p. 837). 
Recreational activities such as horseback riding and off-road vehicle 
(ORV) use can change water flow patterns and damage fragile glade 
habitats. Construction and maintenance of linear infrastructure such as 
roads and utility lines can also destroy or degrade glade cress 
habitat. These factors will be discussed in more detail below.
Development
    Development was recognized by Kral (1983, p. 10) as a primary 
threat to Leavenworthia spp., and this is true for L. exigua var. 
laciniata. The entire range of L. exigua var. laciniata has recently 
undergone rapid residential and commercial development as the greater 
Louisville metropolitan area expanded southward into southern Jefferson 
and northeastern Bullitt Counties. Census data available from 1960 to 
2010 show that the population growth in Bullitt County greatly exceeds 
that of the state and of neighboring Jefferson County (SSDAN 2012, pp. 
1-3) (see Table 4 below).

              Table 4--Population Trends of Kentucky, Bullitt County, KY, and Jefferson County, KY
----------------------------------------------------------------------------------------------------------------
                                                             Percent population growth
                                 -------------------------------------------------------------------------------
                                     1960-1970       1970-1980       1980-1990       1990-2000       2000-2010
                                     (percent)       (percent)       (percent)       (percent)       (percent)
----------------------------------------------------------------------------------------------------------------
Kentucky........................            5.94           13.73            0.67            9.67            7.36
Bullitt County..................           65.90           66.14            9.74           28.74           21.36
Jefferson County................           13.77           -1.45           -2.93            4.31            6.85
----------------------------------------------------------------------------------------------------------------

Residential
    New residential developments have been and are expected to continue 
to be constructed throughout the taxon's range, along with associated 
roads and utilities construction. As shown in Table 4, from 2000 to 
2010, Bullitt County's population increased by 21.4 percent, a 
significant increase compared to Kentucky's overall average growth rate 
of 7.4 percent (SSDAN 2012, pp. 1-3). The population growth of 
Jefferson County seems to have stabilized over the last 20 years SSDAN 
2012, pp. 1-3), but much of the land in southern Jefferson County that 
contained suitable glade cress habitat has already been converted to 
residential, agricultural, and commercial land uses, as seen by viewing 
the 2006 National Land Cover Dataset (Fry et al. 2011).
    The burst of the housing bubble in 2007 seems to have slowed the 
residential expansion within Bullitt County. Residential building 
permits (single and multifamily) averaged only 253 between 2008 and 
2011, while that average during the peak of the housing bubble (2004-
2006) was 698 building permits per year (U.S. Census Bureau 2012, pp. 
1-12). However, although residential development has slowed, we expect 
it will continue as the population continues to grow.
Commercial
    The recent residential development in Bullitt County, specifically 
the Shepherdsville area south of Louisville, has been spurred by 
similar growth in the manufacturing and support service industries, 
which support 45 percent of the industrial employment in Bullitt County 
(KY Cabinet for Economic Development 2012, p. 1). The close proximity 
to the Louisville International Airport and United Postal Service (UPS) 
all-point international hub has made Bullitt County a prime location 
for manufacturing and support service firms. Since 2000, the number of 
these firms within Shepherdsville grew from 5 to 18 and includes large 
distribution centers for companies such as Alliance Entertainment, 
Gordon Food Services, Zappos, and others (KY Cabinet for Economic 
Development 2012, pp. 1-2). Four of these 13 new firms established in 
Bullitt County in 2008 or later, after the burst of the housing bubble.
    Residential and commercial development activities can impact L. 
exigua var. laciniata during construction by destroying or modifying 
suitable habitat. At least 5 of the 16 extirpated L. exigua var. 
laciniata occurrences were eliminated during construction of homes or 
facilities. Even if the structure is not constructed on top of L. 
exigua var. laciniata or its habitat, grading and filling to level the 
site and soil compaction from the construction equipment can destroy or 
modify its habitat. Activities ancillary to residential and commercial 
construction such as roads, utilities, and lawn creation can also 
result in the destruction and modification of habitat for L. exigua 
var. laciniata. These other activities will be discussed in more detail 
below.
Roads
    Many of the 61 extant L. exigua var. laciniata occurrences are 
found in close proximity to roads (KSPNC 2012, pp. 1-108). In the 
northern part of the range, most of the roads are small, local, and 
lead to residential areas. However, in the southwestern part of the 
range, near the community of Cedar Grove, many occurrences are located 
near larger state roads such as KY 1442 and KY 480.
    A review of the Six-Year Highway Plan for Kentucky (KYTC 2006, pp. 
19, 20, 69-92) and the associated web-based mapping tool (available at 
http://maps.kytc.ky.gov/SYP/) found 12 active projects within the range 
of L. exigua var. laciniata, ranging from new construction to bridge 
replacements. Four of these projects are for work on existing road 
sections where there are extant (1) or historic (3) L. exigua var. 
laciniata records near the road. There is

[[Page 31504]]

one new section of road planned through McNeely Lake Park where the 
alignment has not been finalized but the study area contains an extant 
population.
    The majority of known roadside L. exigua var. laciniata occurrences 
are of poor quality with few individual plants and competition from 
nonnative species such as fescue (KSPNC 2012, pp. 1-108). While the 
obvious threat to L. exigua var. laciniata from road construction is 
destruction of habitat, impacts associated with habitat degradation 
when a road is constructed or maintained adjacent to L. exigua var. 
laciniata are less clear. Road rights-of-way are often planted with 
dense-growing, nonnative species such as fescue (KYTC 2012, p. 212-2)), 
that can outcompete L. exigua var. laciniata. Additionally, the soil 
erosion and changes in water runoff patterns associated with 
construction can alter soil and moisture conditions, making habitat 
unsuitable. Mowing in early spring as L. exigua var. laciniata is 
fruiting or before seed has reached maturity could crush plants before 
the seeds mature or cause seeds to fall prematurely, negatively 
impacting reproduction and next year's population. As a winter annual, 
L. exigua var. laciniata may also be susceptible to impacts associated 
with winter road maintenance activities such as snow plowing and 
application of salt or brine.
Utility Lines
    Consultation with the Service on proposed utility work offers the 
opportunity to avoid or minimize utility impacts on the L. exigua var. 
laciniata. Construction and maintenance of utility lines (e.g., water, 
gas, electric, and sewer) can destroy or modify L. exigua var. 
laciniata habitat. Construction of new utility lines or maintenance of 
underground lines will most likely destroy habitat through excavation 
and backfilling of the glade area. Similarly, construction of 
substations or well pads can destroy habitat through the facility 
construction process. Additionally, herbaceous replanting of the ground 
disturbed during construction is commonly done with nonnative species 
such as fescue (J. Garland, pers. obs., 2012), which may compete with 
L. exigua var. laciniata for resources. Threats associated with fescue 
will be discussed under the subsection of ``Lawns'' below.
    Vegetation management activities such as mowing and herbicide 
application for management of the utility right-of-way can also modify 
and degrade habitat for L. exigua var. laciniata. However, most of 
these vegetation management activities occur in the late spring and 
summer when L. exigua var. laciniata is dormant. Right-of-way 
management could benefit L. exigua var. laciniata by maintaining open 
habitat and reducing competition from plants that would be impacted by 
summer mowing and herbicide applications. Four known occurrences of L. 
exigua var. laciniata occur within utility rights-of-way, including one 
C-ranked, two D-ranked, and one F-ranked occurrences as identified 
above in Tables 1 and 2.
    In 2010, the Service became aware of a sewer line project in 
southeastern Jefferson County (Louisville Metropolitan Sewer District 
(MSD) Broad Run interceptor). The proposed project corridor was 
adjacent to at least one known occurrence of L. exigua var. laciniata, 
and the project corridor appeared to contain other suitable habitat for 
the species. A field review of the project corridor by the Service, 
KSNPC, Palmer Engineering, and Louisville MSD was completed in April 
2010 to determine if the species occupied the corridor or if suitable 
habitat was present. During the field review, the Service and KSNPC 
confirmed the presence of the species within the proposed sewer line 
corridor. Habitats for L. exigua var. laciniata were delineated in the 
field and mapped by Palmer Engineering. Louisville MSD agreed to 
relocate a portion of the sewer line to avoid adverse effects to these 
areas. In March 2011, the U.S. Army Corps of Engineers (USACE), 
Louisville District contacted the Service's Kentucky Field Office 
regarding potential adverse effects on the species within the project 
corridor. Silt fencing designed to protect L. exigua var. laciniata 
habitats had failed in at least two areas during construction, allowing 
sediment to leave the construction site and impact the species 
habitats. The USACE directed Louisville MSD to correct the failed silt 
fence within 48 hours, and corrective measures were taken. The site was 
visited by the Service in early April 2011; the silt fence had been 
repaired, and it appeared that L. exigua var. laciniata had not been 
harmed by the silt fence failure. No followup surveys have been 
completed to assess the long-term impacts to this population. Although 
direct effects were avoided in this example, it demonstrates how 
indirect impacts could occur due to proximity of the action to the L. 
exigua var. laciniata plants.
Lawns
    Conversion of natural habitat to lawns is likely the single 
greatest threat to L. exigua var. laciniata and its habitat. For every 
structure (residential, commercial, or other) that is built, an area 
much larger than the structure's footprint is modified to provide a 
lawn area for that property. These areas are maintained with activities 
such as mowing or herbicide application that alters the habitat and 
could damage L. exigua var. laciniata plants. Most areas converted to 
lawns, that have extant or historic L. exigua var. laciniata records, 
have been seeded to tall fescue, a common yard grass in Kentucky. Areas 
of bare ground where L. exigua var. laciniata occurs are known to be 
filled with topsoil or other materials to allow for a uniform landscape 
(D. White, pers. comm., 2012). Lawn maintenance activities such as 
mowing and herbicide application encourage dense mats or fescue roots 
and eliminate competing species (USDA NRCS 2001, p. 1).
    Tall fescue is considered the most widely adapted turf grass used 
in Kentucky. It competes well with weeds and develops a dense sod 
(Powell, Jr. 2000, p. 2). While these features make tall fescue 
desirable to landowners, it can become weedy or invasive, displacing 
native vegetation such as L. exigua var. laciniata (USDA NRCS 2001, p. 
3). In places where they occur together, tall fescue competes with L. 
exigua var. laciniata for water and nutrients and reduces the amount of 
stable, suitable habitat available for plant growth and seed dispersal 
(Kral 1963, p. 2; Baskin and Baskin 1988, p. 836; D. White, pers. 
comm., 2012).
    Another threat to L. exigua var. laciniata is Poa annua (annual 
bluegrass), a weedy species common in lawns. Rollins (1963; p.17) found 
that invading weeds (primarily Poa annua) killed 30 well-established L. 
crassa var. crass and L. alabamica var. alabamica plants in less than 2 
months in the portion of the test plot that was left alone, without any 
weeding. More than 300 Leavenworthia individuals were documented to 
grow normally over the rest of the plot where weeding occurred.
    Twenty-two of the 61 extant L. exigua var. laciniata occurrences 
are in lawns or other landscaped habitats. All of these 22 lawn 
occurrences are assessed as a D-rank based on habitat quality and/or 
population numbers. The lack of native plant associates and the 
presence of nonnative lawn species, against which L. exigua var. 
laciniata is a poor competitor (Rollins 1963, p. 17; Baskin and Baskin 
1985, p. 387), contribute heavily to the poor viability assessed

[[Page 31505]]

these populations. Additionally, 17 of the 22 lawn occurrences have a 
low number of individuals assessed (100 or few plants) with 15 of these 
occurrences having fewer than 50 plants during their most recent 
assessments (KSNPC 2012, pp. 1-108). Of the 16 extirpated occurrences, 
the loss of four of these occurrences is attributed to habitat 
conversion to lawns or other landscaped habitats (KSNPC 2012, pp. 1-
108).
Agriculture/Grazing
    Analysis of the known range of L. exigua var. laciniata found that 
approximately 22 percent of the total land area is in hay or pasture 
(USFWS 2012, p. 1). In addition to being a popular lawn species, tall 
fescue is also a popular hay/pasture grass in Kentucky (NRCS USDA 2001, 
p. 1). Impacts to L. exigua var. laciniata associated with the 
conversion of natural glade or gladelike habitat to fescue or other 
forage species is very similar to those discussed in the section on 
lawns. Grazing or haying of the pasture may help maintain the glade 
habitat, if it persists, by stunting the growth or invasion of woody 
species and maintaining the open herbaceous nature of the habitat.
    However, grazing or haying may have negative impacts on L. exigua 
var. laciniata occurrences, if it occurs prior to seed set. Disturbance 
to the plants could cause mortality, and compaction of the soil from 
overgrazing could cause erosion or change soil moisture (USFWS 2009, p. 
2). High-intensity grazing can also have negative impacts on both 
plants and the glade habitat by increasing soil compaction and erosion 
rates or excessive trampling (USFWS 2009, p. 2). Removing cattle from a 
habitat where grazing activities have helped to maintain the open 
habitat may result in an increase in forage grasses that may outcompete 
L. exigua var. laciniata and alter suitable habitat. We are not aware 
of any studies that have looked at the timing and intensity of 
agricultural activities and their effects on L. exigua var. laciniata. 
However, changes in grazing activities (both more and less) are 
considered threats to at least two known occurrences (KSNPC 2012, pp. 
1-108).
Forest Encroachment
    The dolomitic limestone glade habitat, with which L. exigua var. 
laciniata is associated, has a natural community of herbaceous, or 
nonwoody, plants. These open areas are maintained by their shallow 
soils (Baskin and Baskin 1978, p. 184; Barnes and Evan 2007, p. 12). 
Glades are often associated with barrens, which are believed to have 
been created and maintained by fire (Baskins, et al. 1994, p. 238). 
Suppression of fire around the glade results in the accumulation of 
organic matter in and around the glade. The buildup results in 
increased soils depth and allows for the growth of trees and other 
plants that require deeper soils than typically found in and around the 
glades. Forest encroachment, whether due to lack of fire or other 
sources, threatens L. exigua var. laciniata by increasing shade, to 
which L. exigua var. laciniata is intolerant, and potentially changing 
the soil structure by adding organic materials.
    KSNPC has recommended cedar removal and/or prescribed fire as a 
management activity to promote L. exigua var. laciniata at more than 10 
extant occurrences. Evans and Hannan (1990, p. 15) also recommended 
tree removal and prescribed fire as an important habitat management 
technique for L. exigua var. laciniata. Based on our knowledge of known 
L. exigua var. laciniata occurrences, only four sites (Pine Creek 
Barrens, Rocky Run, Apple Valley, and McNeely Lake) have been or are 
being managed to control forest encroachment around glades containing 
L. exigua var. laciniata.
Off-Road Vehicle Use and Horseback Riding
    Although there are no established trails or designated areas 
specifically for riding horses or off-road vehicles within the range of 
the species, evidence of these activities is apparent at several extant 
and historic L. exigua var. laciniata sites (KSNPC 2012, pp. 1-108). A 
site visit to Pine Creek Barrens in April 2012 found evidence of 
unauthorized horse access. Glade habitat where L. exigua var. laciniata 
is known to occur at this site had fewer plants than in previous years 
(Garland, pers. obs., 2012). At least four L. exigua var. laciniata 
sites appear to have been impacted by ORV usage (KSNPC 2012, pp. 1-
108).
    The habitat requirements of L. exigua var. laciniata are very 
specific with shallow soils and high moisture content in the winter and 
earlier spring, drying out by early summer. Frequent use by ORVs can 
result in soil compaction, increased weed invasion (both native and 
nonnative), wind and water erosion, altered water flow patterns, and 
decreased soil moisture (Stokowski & LaPointe 2000, pp. 14-15). Changes 
to the habitat from ORV use can result in a loss of suitability. Soil 
and wind erosion can remove soils needed for plant growth and seed 
dispersal. If the glade habitat is the recipient of the eroded 
material, the increase in soil depth can alter the habitat such that it 
is more suitable for species previously excluded from the habitat that 
will compete with L. exigua var. laciniata for water and nutrients, or 
sunlight.
Climate Change
    Our analyses under the Endangered Species Act include consideration 
of ongoing and projected changes in climate. The terms ``climate'' and 
``climate change'' are defined by the Intergovernmental Panel on 
Climate Change (IPCC). ``Climate'' refers to the mean and variability 
of different types of weather conditions over time, with 30 years being 
a typical period for such measurements, although shorter or longer 
periods also may be used (IPCC 2007, p. 78). The term ``climate 
change'' thus refers to a change in the mean or variability of one or 
more measures of climate (e.g., temperature or precipitation) that 
persists for an extended period, typically decades or longer, whether 
the change is due to natural variability, human activity, or both (IPCC 
2007, p. 78). Various types of changes in climate can have direct or 
indirect effects on species. These effects may be positive, neutral, or 
negative, and they may change over time, depending on the species and 
other relevant considerations, such as the effects of interactions of 
climate with other variables (e.g., habitat fragmentation) (IPCC 2007, 
pp. 8-14, 18-19). In our analyses, we use our expert judgment to weigh 
relevant information, including uncertainty, in our consideration of 
various aspects of climate change.
    As is the case with all stressors that we assess, even if we 
conclude that a species is currently affected or is likely to be 
affected in a negative way by one or more climate-related impacts, it 
does not necessarily follow that the species meets the definition of an 
``endangered species'' or a ``threatened species'' under the Act. If a 
species is listed as endangered or threatened, knowledge regarding the 
vulnerability of the species to, and known or anticipated impacts from, 
climate-associated changes in environmental conditions can be used to 
help devise appropriate strategies for its recovery.
    We lack firm predictions for future patterns of precipitation and 
temperature that are specific to Kentucky. While it appears reasonable 
to assume that climate change will occur within the range of L. exigua 
var. laciniata, at this time we do not have information to indicate 
specifically how climate change may affect the species or its habitat. 
However, since the species is a habitat specialist, it seems unlikely

[[Page 31506]]

that this species will be flexible in terms of shifting to new habitats 
if the glades become unsuitable. Also, if conditions shift in favor of 
nonnatives, the species will likely be negatively affected.
Conservation Efforts To Reduce the Present or Threatened Destruction, 
Modification, or Curtailment of Its Habitat or Range
    In 1986, the owner of Rocky Run Glade entered into a written 
agreement with KSNPC not to alter the registered area and to allow 
KSNPC agents to enter the area for scientific observation, research or 
education, in exchange for the Registered Natural Area designation. The 
agreement will remain in effect until terminated by either the 
landowner or KSNPC with 30-days' notice. While the agreement recognizes 
the conservation mindset of the property owner, it offers no long-term 
protection to the species due to its nonbinding nature. However, the 
agreement has been in place for more than 20 years, and we have no 
reason to believe it will be terminated.
    Habitat management activities can also reduce threats to the 
species associated with habitat modification from invasive species and 
forest encroachment. Some habitat management occurs on the previously 
mentioned conservation areas (Apple Valley Glade, Pine Creek Barrens 
and Rocky Run); however, we are unaware of any monitoring efforts that 
would indicate whether or not these efforts are successful. 
Additionally, we are not aware of any agreements or assurances that 
would ensure that these measures would be continued into the future. We 
have requested additional information on this subject in the 
``Information Requested'' portion of this rule.
    Jefferson Metro Parks, which manages McNeely Lake Park for the 
Jefferson County Metro Government, has received flexible funding from 
the Service to develop a management plan for the L. exigua var. 
laciniata occurrence within the park and to implement habitat 
improvement measures such as invasive species and woody plant removal 
in the areas surrounding L. exigua var. laciniata. This work has not 
yet been initiated.
Summary of Factor A
    Comprehensively, the loss and degradation of habitat represents the 
greatest threat to L. exigua var. laciniata. Destruction and 
degradation of glades through development, roads, utilities, and 
conversion to lawns has resulted in fewer occurrences of L. exigua var. 
laciniata and reduced the quality of many of the remaining occurrences. 
Additional impacts of this nature are expected to continue far into the 
future as the human population within the range of L. exigua var. 
laciniata continues to grow. While the rate of development and 
associated activities will probably not reach the highs seen during the 
housing market bubble of the mid-2000s, it is expected to continue at a 
rate above the state average. As the Louisville metropolitan area 
continues to expand, undeveloped portions of southern Jefferson and 
northeastern Bullitt Counties will continue to be attractive to 
developers and, consequently, residential and commercial development 
and its ancillary activities will continue. Documented impacts from 
horseback riding, ORV use, and changes in grazing practices have 
resulted in the loss or degradation of several L. exigua var. laciniata 
occurrences. These activities are expected to continue in the future 
but to an unknown extent. Forest encroachment is expected to continue 
in areas without active management. A few voluntary conservation 
measures are in place on private, state and local government owned 
properties that reduce threats to specific L. exigua var. laciniata 
occurrences, but to date, none have resulted in any measurements of 
success or assurances that these activities will continue into the 
future. Climate change has the potential to impact this species, but to 
what extent we cannot predict.

Factor B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Due to the small size and limited distribution of the few remaining 
populations, L. exigua var. laciniata is potentially vulnerable to 
overutilization. A study by Baskins and Baskins (1981, pp. 246-247) 
involved the collection of seeds, plants and three soil blocks 
containing L. exigua var. laciniata seeds from two sites in Bullitt 
County in 1976. However, this study did not assess the impacts of these 
collections on the populations of L. exigua var. laciniata at the 
collection sites. We are unaware of any scientific studies in recent 
years that involved any collection of L. exigua var. laciniata.
    The KSNPC has recently been collecting seed from L. exigua var. 
laciniata sites in order to preserve genetic materials from sites that 
are considered to have poor viability and also for sites where habitat 
is sufficient to expand or supplement the existing populations. In 
2012, seed was collected and planted at a nature preserve to expand the 
population into adjacent suitable habitat and supplement the seed 
source available for establishment. Seed was collected at two other 
sites; both areas where the suitable habitat is marginal. One of these 
sites is a roadside and another is in an area increasingly dominated by 
fescue. About 50 seeds were collected from each site at the end of the 
period for seed dispersal for this species. This constitutes a very 
small portion of the seed produced at these sites. This seed is being 
stored at the KSNPC until a suitable recovery site is identified or 
arrangement with a long-term storage facility is made.
    These few current and historic collections are not believed to have 
a significant impact on L. exigua var. laciniata. The Service will 
coordinate with any agency or university studying L. exigua var. 
laciniata to ensure that future collections will not significantly 
contribute to the decline of the species. We have no information to 
suggest that L. exigua var. laciniata is collected for commercial, 
recreational, or educational purposes, and we have no reason to believe 
that this factor will become a threat to the species in the future.

Factor C. Disease or Predation

    We have identified no available information regarding disease in L. 
exigua var. laciniata. Furthermore, we have identified no information 
regarding animal (wild or domestic) predation on L. exigua var. 
laciniata. Field observations by the KSNPC during extensive surveys of 
this species indicate that neither disease nor predation is a factor 
contributing to the decline of the species at this time (Evans and 
Hannan 1990, p. 12; White, pers. comm., 2012).

Factor D. The Inadequacy of Existing Regulatory Mechanisms

    Section 4(b)(1)(A) of the Act requires the Service to take into 
account ``those efforts, if any, being made by any State or foreign 
nation, or any political subdivision of a State or foreign nation, to 
protect such species. . . .'' In relation to Factor D, we interpret 
this language to require the Service to consider relevant Federal, 
State, and tribal laws, regulations, and other such mechanisms that may 
minimize any of the threats we describe in threat analyses under the 
other four factors, or otherwise enhance conservation of the species. 
We give the strongest weight to statutes and their implementing 
regulations and to management direction that stems from those laws and 
regulations, such as State governmental actions enforced under a State 
statute or constitution or Federal action under statute.

[[Page 31507]]

    Having evaluated the significance of the threats as mitigated by 
any such conservation efforts, we review existing State and Federal 
regulatory mechanisms to determine whether or not they effectively 
reduce or remove threats to L. exigua var. laciniata.
    The Kentucky Rare Plants Recognition Act, Kentucky Revised Statutes 
(KRS) Chapter 146 Section 600-619, directs the KSNPC to identify plants 
native to Kentucky that are in danger of extirpation within Kentucky 
and report every 4 years to the Governor and General Assembly on the 
conditions and needs of these threatened or endangered plants. This 
list of endangered or threatened plants in Kentucky is found in the 
Kentucky Administrative Regulations Title 400 Chapter 3:040. The 
statute (KRS 146:600-619) recognizes the need to develop and maintain 
information regarding distribution, population, habitat needs, limiting 
factors, other biological data, and requirements for the survival of 
plants native to Kentucky. This statute does not include any regulatory 
prohibitions of activities or direct protections for any species 
included in the list. It is expressly stated in KRS 146.615 that this 
list of threatened or endangered plants shall not obstruct or hinder 
any development or use of public or private land. Furthermore, the 
intent of this statute is not to ameliorate the threats identified for 
the species but it does provide information on the species.
    We are not aware of any other State or Federal statutes or 
regulations that would provide protections to L. exigua var. laciniata.

Factor E. Other Natural or Manmade Factors Affecting Its Continued 
Existence

Narrow Range
    L. exigua var. laciniata is a narrow endemic known to occur only in 
northeastern Bullitt County and extreme southeastern Jefferson County 
(Evans and Hannah 1990, p. 6; Jones 2005, p. 294; White 2004, p. 1). A 
mapping of known occurrences shows this taxon to be restricted to an 
area less than 100 square miles. Within this area, L. exigua var. 
laciniata is restricted to the small patches of suitable habitat 
associated with shallow soils that are interspersed with flat-bedded 
Silurian dolomite and dolomitic limestones. This narrow range places L. 
exigua var. laciniata at a higher risk for extinction from habitat loss 
or degradation associated with localized events (manmade or natural), 
change in land use, or industry than a species that occurs across a 
broader landscape.
Small Population Size
    Annual plants often have widely fluctuating populations and may or 
may not have abundant seed banks (Bush and Lancaster 2004, p. 1). 
However, a given year's plant population strongly influences the seed 
bank for that site. A review of recent population estimates for the 
extant populations found that 33 of 61 sites had 100 or fewer 
individuals at the time of their last survey. Additionally, the 
majority of these populations have shown a decline throughout the 
period in which KSNPC has been conducting status surveys (roughly 1990 
to 2012) (KSNPC 2012, pp. 1-108).
    Small populations can be prone to extirpation, especially if a 
series of drought years greatly reduces seed production and depletes 
the soil seed bank. Small populations can also be prone to extirpation 
from single adverse natural or manmade events. Low numbers of plants, 
confined to very small areas, can be totally eradicated by actions such 
as installation of utility lines, road construction, or development. 
The majority of the extant occurrences of L. exigua var. laciniata are 
small, covering only a few square meters (KSNPC 2012, pp. 1-108).
    Small population size also increases the risk of total loss of 
populations due to contact with herbicides or shading and leaf litter 
accumulation from forest encroachment, because these threats are likely 
to affect the entirety of any given occurrence. Sustained drought may 
reduce the reproductive effort of a population. Reduced reproductive 
effort affects the seed bank, which represents the reproductive 
capacity of each glade cress population. Although no studies have 
examined the long-term viability of L. exigua var. laciniata seed, 
Baskin and Baskin (1981, p. 247) found that more than 90 percent of the 
total germination took place in the first growing season.
    In addition to increasing vulnerability to direct threats, small 
population size can result in a decrease in genetic diversity due to 
genetic drift (the random change in genetic variation in each 
generation), and inbreeding (mating of related individuals) (Antonovics 
1976, p. 238; Ellstram and Elam 1993, pp. 218-219).
Low Genetic Diversity
    L. exigua var. laciniata has the ability to self or cross pollinate 
(Rollins 1963, p. 17). The degree to which either form of pollination 
is used over the other is not known. However, we believe that L. exigua 
var. laciniata primarily self-pollinates due to the biological changes 
associated with self-compatibility in Leavenworthia species. Such 
changes include, but are not limited to, reduction in flower size, a 
shift from odiferous to nonodiferous flowers and flowering during a 
period when insect activity is minimal (Rollins 1963, pp. 41-43).
    Research by Liu et al. (1998, p. 298) on other Leavenworthia 
species (L. uniflora, L. crassa and L. stylosa) found that self-
compatible species (species that self or cross pollinate) had lower 
genetic diversity than the species that were not self-compatible. An 
earlier laboratory study on L. uniflora and L. crassa by Charlesworth 
et al. (1994, p. 211) found that the offspring from self-pollination 
had lower survival and fertility than those offspring produced by 
cross-pollination.
Summary of Factor E
    L. exigua var. laciniata is subject to several ongoing natural and 
manmade factors, which could affect its continued existence. The 
species has a narrow range, occurring in only small portions of two 
counties. Within this range, L. exigua var. laciniata is restricted to 
cedar glades and similar shallow-soiled areas that occur sporadically 
across the range. More than half of the remaining occurrences had low 
(fewer than 100 individuals) population counts at the time of the most 
recent survey. Additionally, the presumed low genetic diversity within 
individual occurrences of L. exigua var. laciniata could place those 
occurrences at a high risk of extirpation as their capacity for 
adaptation to change is reduced.

Determination

    The most significant threats to the species are described under 
Factors A (the present or threatened destruction, modification, or 
curtailment of its habitat or range) and E (other natural or manmade 
factors affecting its continued existence). Based on the Factor A 
analysis, we conclude that the loss and degradation of habitat 
represents the greatest threat to L. exigua var. laciniata. Destruction 
and degradation of glades through development, roads, utilities, and 
conversion to lawns has resulted in fewer occurrences of L. exigua var. 
laciniata and reduced the quality of many of the remaining occurrences. 
Additional impacts of this nature are expected to continue for the 
foreseeable future as the human population within the range of L. 
exigua var. laciniata continues to grow. While the rate of development 
and associated activities will probably not reach the highs seen during 
the housing market bubble of the

[[Page 31508]]

mid-2000s, it is expected to continue at a rate above the State 
average. As the Louisville metropolitan area continues to expand, 
undeveloped portions of southern Jefferson and northeastern Bullitt 
counties will continue to be attractive to developers and, 
consequently, residential and commercial development and its ancillary 
activities will continue. Expansion of lawn grasses will continue to 
threaten L. exigua var. laciniata regardless of development rates as 
they encroach on glades and gladelike areas lacking in habitat 
management activities that would exclude them. As a poor competitor, 
inhabiting areas of shallow soil and droughty conditions during the 
growing season, this species is particularly vulnerable to habitat 
degradation from nonnative and woody species.
    Documented impacts from horseback riding and ORV use have resulted 
in the loss or degradation of several L. exigua var. laciniata 
occurrences. These activities in close proximity to L. exigua var. 
laciniata populations are expected to continue in the future and can 
result in a significant threat to the species. Based on our review of 
the best available information, we conclude that agricultural 
activities such as habitat conversion to pasture and changes in grazing 
intensity constitute a significant threat to L. exigua var. laciniata. 
Additionally, the lack of prescribed fire on the open ground 
surrounding most of the glades containing L. exigua var. laciniata, and 
the documented threat associated with forest encroachment, leads us to 
conclude that forest encroachment is a significant threat to L. exigua 
var. laciniata.
    The Factor E analysis demonstrated that L. exigua var. laciniata is 
subject to several ongoing natural and manmade threats. The species has 
a narrow range, occurring in only small portions of two counties. 
Within this range, L. exigua var. laciniata is restricted to cedar 
glades and similar shallow-soiled areas which occur sporadically across 
the range. More than half of the remaining occurrences had low (fewer 
than 100 individuals) population counts at the time of the most recent 
survey. Additionally, the presumed low genetic diversity within 
individual occurrences of L. exigua var. laciniata could place those 
occurrences at a high risk as their capacity for adaptation to change 
is reduced. These threats occur across the taxon's range and are 
ongoing and, therefore, imminent. The reduced ability to adapt to 
changing conditions combined with the habitat modification and 
destruction described in Factor A leads us to conclude that the 
severity of these threats is high.
    Therefore, based on our review of the best available scientific and 
commercial information, we conclude that the narrow range, low genetic 
diversity, and small population size, as described in the Factor E 
analysis, both alone and in conjunction with the threats described 
under Factor A, constitutes a significant threat to L. exigua var. 
laciniata. We were unable to identify any factors, including (but not 
limited to) management actions, regulatory mechanisms, or protective 
agreements, that appear to mitigate or reduce these threats.
    We propose to list the species as threatened, rather than 
endangered, due to the relatively high current number of extant 
populations (61). Although threats to the taxon are ongoing, often 
severe, and occurring across the range, the possibility that all 
occurrences would be equally impacted in the foreseeable future so as 
to cause extinction is unlikely. Therefore, on the basis of the best 
available scientific and commercial information, we propose listing L. 
exigua var. laciniata as threatened in accordance with sections 3(6) 
and 4(a)(1) of the Act.

Significant Portion of the Range

    The Act defines an endangered species as any species that is ``in 
danger of extinction throughout all or a significant portion of its 
range'' and a threatened species as any species ``that is likely to 
become endangered throughout all or a significant portion of its range 
within the foreseeable future.'' A major part of the analysis of 
``significant portion of the range'' requires considering whether the 
threats to the species are geographically concentrated in any way. If 
the threats are essentially uniform throughout the species' range, then 
no portion is likely to warrant further consideration.
    We have carefully considered all scientific and commercial 
information available regarding the past, present, and future threats 
to L. exigua var. laciniata. L. exigua var. laciniata, proposed for 
listing in this rule, occurs only in portions of two Kentucky counties 
and the threats to the survival of the taxon are not restricted to any 
particular significant portion of that range. Accordingly, our 
assessment and determination applies to the taxon throughout its entire 
range. We find that L. exigua var. laciniata is likely, within the 
foreseeable future, to become an endangered species throughout its 
entire range, based on the immediacy, severity, and scope of the 
threats described above. We propose listing L. exigua var. laciniata as 
threatened in accordance with sections 3(6) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition, through listing, results in public awareness 
and conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and requires that recovery actions be carried out for all listed 
species. The protection required by Federal agencies and the 
prohibitions against certain activities are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act requires the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed, preparation of a draft and final 
recovery plan, and revisions to the plan as significant new information 
becomes available. The recovery outline guides the immediate 
implementation of urgent recovery actions and describes the process to 
be used to develop a recovery plan. The recovery plan identifies site-
specific management actions that will achieve recovery of the species, 
measurable criteria that determine when a species may be downlisted or 
delisted, and methods for monitoring recovery progress. Recovery plans 
also establish a framework for agencies to coordinate their recovery 
efforts and provide estimates of the cost of implementing recovery 
tasks. Recovery teams (comprising species experts, Federal and State 
agencies, nongovernmental organizations, and stakeholders) are often 
established to develop recovery plans. When completed, the recovery 
outline, draft recovery plan, and the

[[Page 31509]]

final recovery plan will be available on our Web site (http://www.fws.gov/endangered), or from our Kentucky Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their ranges may occur primarily or solely on 
non-Federal lands, as is the situation with L. exigua var. laciniata. 
To achieve recovery of these species requires cooperative conservation 
efforts on private, local government, State, and Tribal lands.
    If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost-share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the Commonwealth of Kentucky would be 
eligible for Federal funds to implement management actions that promote 
the protection and recovery of L. exigua var. laciniata. Information on 
our grant programs that are available to aid species recovery can be 
found at: http://www.fws.gov/grants.
    Although L. exigua var. laciniata is only proposed for listing 
under the Act at this time, please let us know if you are interested in 
participating in recovery efforts for this species. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act 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 designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) of the Act requires Federal agencies to confer with the 
Service on any action that is likely to jeopardize the continued 
existence of a species proposed for listing or result in destruction or 
adverse modification of proposed critical habitat. If a species is 
listed subsequently, section 7(a)(2) of the Act requires Federal 
agencies to ensure that activities they authorize, fund, or carry out 
are not likely to jeopardize the continued existence of the species or 
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 formal consultation with the Service.
    For L. exigua var. laciniata, Federal agency actions within the 
species' habitat that may require conference or consultation or both as 
described in the preceding paragraph include, but may not be limited 
to: Issuance of section 404 Clean Water Act permits by the USACE; 
construction and management of gas pipeline and power line rights-of-
way by the Federal Energy Regulatory Commission; and construction and 
maintenance of roads or highways by the Federal Highway Administration.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered plants. 
All prohibitions of section 9(a)(2) of the Act, implemented by 50 CFR 
17.61, 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 and reduce the species to possession from areas 
under Federal jurisdiction. In addition, for plants listed as 
endangered, the Act prohibits the malicious damage or destruction on 
areas under Federal jurisdiction and the removal, cutting, digging up, 
or damaging or destroying of such plants in knowing violation of any 
State law or regulation, including State criminal trespass law. Certain 
exceptions to the prohibitions apply to agents of the Service and State 
conservation agencies. Although the KSNPC has designated L. exigua var. 
laciniata as endangered within Kentucky, this designation conveys no 
legal protection. The Act will, therefore, offer the only protections 
to this taxon.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered and threatened wildlife species under certain 
circumstances. Regulations governing permits are codified at 50 CFR 
17.22 for endangered species, and at 17.32 for threatened species. With 
regard to endangered wildlife, a permit must be issued for the 
following purposes: For scientific purposes, to enhance the propagation 
or survival of the species and for incidental take in connection with 
otherwise lawful activities.
    Our policy, as published in the Federal Register on July 1, 1994 
(59 FR 34272), is to identify to the maximum extent practicable at the 
time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of species 
proposed for listing. We believe, based on the best available 
information, that the public can take the following actions without 
resulting in a violation of section 9, only if 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. utility line construction, maintenance, and improvement; 
highway construction, maintenance, and improvement) when such activity 
is conducted in accordance with any reasonable and prudent measures 
provided by us according to section 7 of the Act.
    (2) Normal agricultural and silvicultural practices, including 
herbicide and pesticide use, which are carried out in accordance with 
any existing regulations, permit and label requirements, and best 
management practices.
    (3) Normal landscape activities around your own personal residence.
    The following activities could potentially result in a violation of 
section 9 of the Act; however, this list is not comprehensive:
    Unauthorized collecting, handling, possessing, selling, delivering, 
carrying, or transporting of the species, including import or export 
across State lines and international boundaries, except for properly 
documented antique specimens of these taxa at least 100 years old, as 
defined by section 10(h)(1) of the Act.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Kentucky 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). 
Requests for copies of the regulations concerning listed plants and 
general inquiries regarding prohibitions and permits may be addressed 
to the U.S. Fish and Wildlife Service, Ecological Services Division, 
1875 Century Boulevard, Atlanta, GA 30345 (Phone 404/679-7313; Fax 404/
679-7081).

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270),

[[Page 31510]]

we will seek the expert opinions of at least three appropriate and 
independent specialists regarding this proposed rule. The purpose of 
peer review is to ensure that listing the species is based on 
scientifically sound data, assumptions, and analyses. We have invited 
these peer reviewers to comment during this public comment period on 
our specific assumptions and conclusions in this proposed rule.
    We will consider all comments and information received during this 
comment period on this proposed rule during our preparation of a final 
determination. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days after the date of publication of this proposed rule in the Federal 
Register. Such requests must be sent to the address shown in the 
ADDRESSES section. We will schedule public hearings on this proposal, 
if any are requested, and announce the dates, times, and places of 
those hearings, as well as how to obtain reasonable accommodations, in 
the Federal Register and local newspapers at least 15 days before the 
hearing.

Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

National Environmental Policy Act (NEPA)

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be 
prepared in connection with listing a species as endangered or 
threatened under the Act. We published a notice outlining our reasons 
for this determination in the Federal Register on October 25, 1983 (48 
FR 49244).

References Cited

    A complete list of all references cited in this rulemaking is 
available on the Internet at http://www.regulations.gov or upon request 
from the Field Supervisor, Kentucky Ecological Services Field Office 
(see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this document are the staff members of the 
Kentucky Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless 
otherwise noted.

0
2. In Sec.  17.12(h), add an entry for ``Leavenworthia exigua var. 
laciniata'' in alphabetical order under ``Flowering Plants'' in the 
List of Endangered and Threatened 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
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
Leavenworthia exigua var.          Kentucky glade cress  U.S.A. (KY)........  Brassicaceae.......  T               ...........           NA           NA
 laciniata.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 31511]]

* * * * *

    Dated: May 6, 2013.
 Rowan W Gould,
Deputy Director, U.S. Fish and Wildlife Service.
[FR Doc. 2013-12103 Filed 5-23-13; 8:45 am]
BILLING CODE 4310-55-P