Endangered and Threatened Wildlife and Plants; Proposed Rule to List Two Plants From Southwestern California as Endangered and Threatened

DEPARTMENT OF THE INTERIOR

50 CFR Part 17

RIN 1018-AC65

Endangered and Threatened Wildlife and Plants; Proposed Rule to

List Two Plants From Southwestern California as Endangered and

Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The Fish and Wildlife Service (Service) proposes to list

Downingia concolor var. brevior (Cuyamaca Lake downingia) as endangered

and Limnanthes gracilis ssp. parishii (Parish's meadowfoam) as

threatened throughout their respective ranges in southwestern

California pursuant to the Endangered Species Act of 1973, as amended

(Act). These species occur in vernally moist soils of montane wet

meadows, near springs and seeps, or vernal pools within the Peninsular

Ranges of southwestern California. These plants are imperiled by a

variety of factors including alteration of wetland hydrology, cattle

grazing, recreational activities, recreational development, off-road

vehicle activity, and competition from exotic plant species. This

proposed rule, if made final, would extend protection under the Act to

these two plants. Critical habitat is not being proposed at this time.

Additional data and information, which may assist the Service in making

a final decision on this proposed action, is solicited on the status of

these species.

DATES: Comments from all interested parties must be received by October

3, 1994. Public hearing requests must be received by September 19,

1994.

ADDRESSES: Comments and materials concerning this proposal should be

sent to the Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad

Field Office, 2730 Loker Avenue West, Carlsbad, California 92008.

Comments and materials received will be available for public

inspection, by appointment, during normal business hours at the above

address.

FOR FURTHER INFORMATION CONTACT: Ms. Debbie Kinsinger, Botanist, at the

above address (telephone 619/431-9440).

SUPPLEMENTARY INFORMATION:

Background

Downingia concolor var. brevior (Cuyamaca Lake downingia) and

Limnanthes gracilis ssp. parishii (Parish's meadowfoam) occur in

association with meadows and drainages of the Peninsular Ranges of

southwestern California from the Santa Ana Mountains of extreme

southwestern Riverside County, south to the Laguna Mountains of

southern San Diego County, California. Both plant taxa are restricted

to grassy meadows that are vernally wet (wet during the rainy season)

with saturated soil conditions and shallow pools for several weeks at a

time. Between the ponded areas are drier mounds, called mima mounds.

This type of physiography is referred to as a montane meadow-vernal

pool association.

The largest populations of both taxa are located within the

Cuyamaca Valley in the Cuyamaca Mountains of central San Diego County,

California. Although the vernal pool and mima mound topography is

mostly obliterated, much of the unique, montane, vernal pool flora

remains. This flora includes a number of disjunct species that are more

frequently associated with vernal pools of coastal San Diego County or

central California (e.g., Deschampsia danthonioides (annual hairgrass),

Blennosperma nanum (common blennosperma), and Delphinium hesperium ssp.

cuyamacae (Cuyamaca larkspur) (Beauchamp 1986a, Winter 1991)).

Historically, a depression at the southwestern end of the Cuyamaca

Valley formed a small lake that dried up in the summer. This area was

referred to as ``Laguna Que Se Seca'' (the lake that dries up) (Allen

and Curto 1987). This area and the rest of the valley supported a

complex of vernal pools and mima mounds. A dam was built in 1886 at the

Boulder Creek outlet of Cuyamaca Lake. The dam created a permanent

reservoir known as Cuyamaca Lake. A dike built in 1967 allowed water to

be pumped from the reservoir so that the valley could be kept in a

flooded condition throughout the summer (Ball et al., unpub. man.). In

wet years, the reservoir and dike system allows the entire valley to

remain flooded for extended periods (Bauder 1992). Many areas

supporting these taxa have been moderately to heavily grazed in the

past and some areas continue to be adversely affected by livestock and

horses. For example, heavy grazing in the Laguna Mountains since the

1880's has resulted in the increased abundance of introduced annual

grasses and forbs, the scarcity of organic matter, and severe gullying

and erosion (Sproul 1979).

Downingia concolor var. brevior (Cuyamaca Lake downingia) was

described by R. McVaugh (1941) based on a collection by L. Abrams at

Cuyamaca Lake, Cuyamaca Mountains, San Diego County, California.

Beauchamp (1986b) elevated the plant to a subspecies following the

suggestions of Thorne (1978). However, Ayers (1993) also recognized

this plant as D. c. var. brevior following McVaugh's (1941) treatment

of this taxon.

Downingia concolor var. brevior is a member of the bellflower

family (Campanulaceae). This plant is a low, slightly succulent annual

herb, with stems 5 to 20 centimeters (cm) (2 to 8 inches (in)) long.

The flowers are blue and white with a 4-sided purple spot at the base

of the united petals. The fruit is 12 to 15 mm (0.5 in) long and the

seeds have linear striations (lines). D. concolor var. brevior blooms

from May to July and sets seed from June to August. The seeds are

dispersed by flooding and require brief inundation for germination

(Munz 1974, Bauder 1992).

Downingia concolor var. brevior can be distinguished from the only

other member of this genus that occurs in southern California, D.

cuspidata, by the form of the striations on the seed and by the color

of the flower. It can be distinguished from the more northern D.

concolor var. concolor by the size of the fruit and how rapidly the

fruit splits open when the seeds are mature (Ayers 1993).

Downingia concolor var. brevior is restricted to a single

population at Cuyamaca Lake in the Cuyamaca Valley of San Diego County,

California on land owned by the Lake Cuyamaca Recreation and Park

District. Historically, the population of D. concolor var. brevior was

located throughout much of the valley floor. This population has now

been largely restricted to the shore of the lake, penetrating into the

valley floor during dry years. From 1988 to 1992 one population existed

in the vicinity of Cuyamaca Lake, consisting of between 9 and 24

stands. Combined, these stands occupied less than 200 acres and

frequently occupied less than 100 acres. The number of individuals

within these stands, and the location and size of these stands vary in

any given year in response to rainfall, the extent of winter flooding,

and temperature (Bauder 1992).

Limnanthes gracilis ssp. parishii (Parish's meadowfoam) was first

described by W.L. Jepson (1936) as Limnanthes versicolor var. parishii.

The description was based on specimens collected by S.B. Parish at the

Stonewall Mine on the southern edge of the Cuyamaca Valley, San Diego

County, California. Mason (1952) recognized L. versicolor var. parishii

as L. gracilis var. parishii, based on flower and fruit morphology.

Beauchamp (1986b) elevated the plant to a subspecies based on

consistency with other treatments of this genus, and the geographic

separation (over 1,200 kilometers (km) (800 miles (mi)) from L.g. ssp.

gracilis, which is found in southern Oregon.

Limnanthes gracilis ssp. parishii is a member of the meadowfoam

family (Limnanthaceae), a small family of wetland species found

primarily along the Pacific coast of North America. The plant is a low,

widely branching annual with stems 10 to 20 cm (4 to 8 in) long. The

leaves are 2 to 6 cm (0.5 to 2 in) long and divided. The flowers are

bowl-shaped, the petals are 8 to 10 mm (0.25 to 0.5 in) long with a

white or occasionally with a cream-colored base that becomes pink

(Ornduff 1993). The fruit is rough textured. L. gracilis ssp. parishii

blooms from April through May, setting seed in the late spring and

early summer. Germination requires saturated soils or inundation (Munz

1974, Bauder 1992).

The range of Limnanthes gracilis ssp. parishii is separated by over

480 km (300 mi) from any other species of Limnanthes. L.g. ssp.

parishii is distinguished morphologically from L.g. ssp. gracilis by

its smaller flowers, broader sepals, and smooth nutlets (Abrams 1951,

Mason 1952).

Limnanthes gracilis ssp. parishii is restricted to moist montane

meadows, mudflats, and along stream courses in the Palomar, Cuyamaca,

and Laguna mountains of San Diego County, California. Fewer than 20

populations of this taxon exist. The largest population occurs in the

Cuyamaca Valley in the vicinity of Cuyamaca Lake and Stonewall Creek

and is restricted to the shore of Cuyamaca Lake at maximum inundation.

The majority of this population is on private lands but extends onto

California State Parks and Recreation lands.

Historically, the Cuyamaca Valley population of Limnanthes gracilis

ssp. parishii occurred throughout much of the valley floor. Recently,

the Cuyamaca Valley population of L. gracilis ssp. parishii was

described as consisting of 100 stands by Bauder (1992), and 8 small

populations by the California Natural Diversity Data Base (CNDDB)

(1992). However, these smaller groupings are contiguous, separated by

less than 1.5 km (1 mi), and concentrated within a 9 square km (4

square mi) area. Approximately 120 hectares (ha) (300 acres (ac)) of a

potential 800 ha (2,000 ac) of the Cuyamaca Valley and Stonewall Creek

area are occupied by L. gracilis ssp. parishii. The number of

individuals and the location and size of stands within this area varies

in any given year in response to rainfall, the extent of winter

flooding, and temperature (Bauder 1992). Under favorable conditions, L.

gracilis ssp. parishii can be a conspicuous element of the Cuyamaca

Valley during the spring bloom (Craig Rieser, Pacific Southwest

Biological Services, pers. comm., 1993).

Other populations of Limnanthes gracilis ssp. parishii are

considerably smaller, both in number of individuals and the extent of

occupied habitat relative to the Cuyamaca Valley population. They range

in size from less than 2 ha (5 ac) to as much as 40 ha (100 ac) in

extent, and most populations contain fewer than 1000 individuals. At

least five of these other populations occur on National Forest lands. A

single isolated population is located in vernal pools on the Santa Rosa

Plateau of southwestern Riverside County, California. This area of

approximately 2 ha (5 ac) is managed by The Nature Conservancy (TNC).

One additional population has been introduced to National Forest lands

in the Laguna Mountains from seeds gathered from the Cuyamaca Valley

population (Winter 1991, CNDDB 1992).

Previous Federal Action

Federal government action on the two plant taxa considered in this

rule began as a result of section 12 of the Endangered Species Act of

1973, which directed the Secretary of the Smithsonian Institution to

prepare a report on those plants considered to be endangered,

threatened, or extinct. This report, designated as House Document No.

94-51, and presented to Congress on January 9, 1975, recommended

Limnanthes gracilis var. parishii (= L.g. ssp. parishii) for endangered

status. The Service published a notice in the July 1, 1975, Federal

Register (40 FR 27823), of its acceptance of the report as a petition

within the context of section 4(c)(2) (now section 4(b)(3)(A)) of the

Act, and of the Service's intention to review the status of the plant

taxa named therein, including L.g. ssp. parishii. The Service published

a proposal in the June 16, 1976, Federal Register (42 FR 24523) to

determine approximately 1,700 vascular plants to be endangered species

pursuant to section 4 of the Act. Limnanthes gracilis ssp. parishii was

included in this Federal Register notice.

General comments received in response to the 1976 proposal were

summarized in an April 26, 1978, Federal Register notice (43 FR 17909).

The Endangered Species Act amendments of 1978 required all proposals

over 2 years old to be withdrawn, although a 1-year grace period was

given to those proposals. In the December 10, 1979, Federal Register

(44 FR 70796), the Service published a notice of withdrawal for that

portion of the June 6, 1976, proposal that had not been made final and

which included L. g. ssp. parishii.

The Service published an updated Notice of Review of Plants in the

Federal Register on December 15, 1980 (45 FR 82480). This notice

included Downingia concolor var. brevior and Limnanthes gracilis ssp.

parishii as category 1 candidate taxa (species for which data in the

Service's possession are sufficient to support a proposal for listing).

On November 28, 1983, the Service published a supplement to the Notice

of Review of Plants in the Federal Register (48 FR 53640). This notice

was again revised on September 27, 1985 (50 FR 39526). Both plant taxa

were included in 1983 and 1985 supplements to the Notice of Review of

Plants as category 2 candidate taxa (species for which data in the

Service's possession indicate listing may be appropriate, but for which

additional biological information is needed to support a proposed

rule). The Notice of Review of Plants was again revised on February 21,

1990 (55 FR 6184), and again on September 30, 1993 (58 FR 51144).

Downingia concolor var. brevior was included as a category 1 candidate

taxon, and Limnanthes gracilis ssp. parishii as a category 2 candidate

taxon in both notices.

Section 4(b)(3)(B) of the Endangered Species Act of 1973, as

amended in 1982, requires the Secretary to make findings on pending

petitions within 12 months of their receipt. Section 2(b)(1) of the

1982 amendments further requires that all petitions pending on October

13, 1982 be treated as having been newly submitted on that date. This

was the case for Limnanthes gracilis ssp. parishii because the 1975

Smithsonian report had been accepted as a petition. On October 13,

1983, the Service found that the petitioned listing of this species was

warranted but precluded by other pending listing proposals of higher

priority, pursuant to section 4(b)(3)(B)(iii) of the Act. Notification

of this finding was published in the Federal Register on January 20,

1984 (49 FR 2485). Such a finding requires the petition to be recycled,

pursuant to section 4(b)(3)(C)(i) of the Act. The finding was reviewed

in October of 1984, 1985, 1986, 1987, 1988, 1989, 1990, 1991, and 1992.

The Service made a final ``not warranted'' finding on the 1975

petition with respect to L. g. ssp. parishii and 864 other species in

the December 9, 1993, Federal Register (58 FR 64828-45). One reason was

cited as the basis for this finding on this species that was based upon

data not then available to the Service in late summer 1993: current

threats (i.e., the five factors described below under 50 CFR 424.11)

throughout a significant portion of the species' range. The species was

retained in Category 2 on the basis that it may be subject to

extinction or endangerment from uncontrolled loss of habitat or from

other man-caused changes to its environment (58 FR 64840). Since the

summer of 1993, the Service has completed or obtained survey and other

data that adequately describe those factors that are placing L. g. ssp.

parishii at risk of extinction. The Service has proceeded to propose

this species along with the Lake Cuyamaca downingia that occupies the

same general part of southern California.

On December 14, 1990, the Service received a petition dated

December 5, 1990, from Mr. David Hogan of the San Diego Biodiversity

Project, to list Downingia concolor ssp. brevior (=D. c. var. brevior)

as an endangered species. The petitioner also requested the designation

of critical habitat for this species. The Service evaluated the

petitioner's requested action for D. c. var. brevior and published a

90-day finding on August 30, 1991 (56 FR 42968) that substantial

information existed indicating that the requested action may be

warranted. Publication of this proposal constitutes the final finding

that the petitioned action is warranted for this species.

Summary of Factors Affecting the Species

Section 4 of the Endangered Species Act (16 U.S.C. 1531 et seq.)

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. A species may be determined to be an endangered or

threatened species due to one or more of the five factors described in

section 4(a)(1) and 50 CFR 424.11. These factors and their application

to Downingia concolor E. Greene var. brevior McVaugh (Cuyamaca Lake

downingia) and Limnanthes gracilis Howell ssp. parishii (Jepson) Beauch

(Parish's meadowfoam) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment

of its Habitat or Range

Impacts that result in the loss, degradation, and fragmentation of

vernally moist wet meadows are contributing to the decline of

Limnanthes gracilis ssp. parishii and Downingia concolor var. brevior.

The habitat for both these taxa is threatened by recreational

developments, off-road vehicle use, trampling, alterations of hydrology

and the introduction of exotic plants.

Historically, montane wet meadow and vernal pool habitats were much

more abundant in the Peninsular Ranges of San Diego County (Winter

1991). The wet meadows surrounding Cuyamaca Lake reservoir support the

most significant populations of Limnanthes gracilis ssp. parishii and

Downingia concolor var. brevior. The entire Cuyamaca Valley was

originally a montane meadow-vernal pool complex. Dredging during dam

construction in 1886 altered the natural topography of the valley and

its vernal pools. Mima mounds were likely excavated since ``much of the

earth used for the dam was taken from the meadow north of the dam and

from the valley floor'' (Allen and Curto 1987). Later, 160 ha (400 ac)

of the valley outside the reservoir was leased from Helix Water

District and planted in grain.

Loss of wet meadow habitat continues as a result of excessive water

inundation at Cuyamaca Lake reservoir and within Cuyamaca Valley above

the dike. Studies of Limnanthes gracilis ssp. parishii and Downingia

concolor var. brevior, conducted between 1988 and 1992, have

demonstrated that extended inundation at Cuyamaca Lake caused

extirpation of stands for these two species (Bauder 1992). The

reservoir provides domestic water, flood control, and recreational

activities such as fishing and duck hunting. These uses are

administered through agreements between the Helix Water District, the

City of San Diego's El Capitan Reservoir, and Lake Cuyamaca Recreation

and Park District (Bauder 1992). Approximately 81 ha (150 ac) of

potential meadow habitat are permanently inundated. The system of dikes

built in 1967 allows an additional 273 ha (675 ac) to be inundated for

extended periods of time during periods of high precipitation; that

occurred as recently as 1993 (Hugh Marks, Cuyamaca Lake Recreation and

Parks District Manager, pers. comm., 1993). L. gracilis ssp. parishii

is less able to recover from excessive inundation than D. concolor var.

brevior, as shown by the lack of re-establishment in areas of previous

inundation (Bauder 1992).

A variety of indirect impacts are associated with the diversion of

water entering the Cuyamaca Lake reservoir basin. Diversion often

results in the alteration of small drainages by down cutting and

streambank erosion, which contributes to the loss of potentially

suitable habitat upstream of Cuyamaca Lake. Fluctuating lake levels

also increase channel erosion by changing the gradient and velocity of

surrounding drainages. Erosion is further intensified by the decrease

in groundwater levels caused by numerous wells in the area. When

streamflow velocities are high, Downingia and Limnanthes seeds and

plants can be buried or washed away. In dry years, meadows exposed by

the receding shoreline dry prematurely as the groundwater level falls.

Roads without adequate culverts also divert water flow. Road

maintenance and herbicidal weed abatement often preclude the re-

establishment of seeds in areas of suitable habitat (Bauder 1992). In

addition, the alteration of hydrology in Cuyamaca Valley promotes the

invasion of exotic species (e.g., Lolium perenne (ryegrass) and Poa

pratensis (Kentucky bluegrass)) known to displace native plant species.

These indirect effects can have significant, long-term impacts on the

meadow habitats and associated sensitive plant species.

Direct loss of both species' habitat at the reservoir is

substantial. For example, a parking lot and a campground on the south

end of Cuyamaca Lake reservoir at Los Caballos have displaced habitat

(Bauder 1992). The Prado campground on the Cleveland National Forest

also displaced Limnanthes gracilis ssp. parishii (Devoree Volgarino,

Cleveland National Forest, pers. comm., 1993). The construction of a

Boy Scout trail in 1976 destroyed a population of L. g. ssp. parishii

in Canebrake Canyon, north of Cuyamaca Lake (CNDDB 1992). A trail

around the perimeter of Cuyamaca Lake bisects several populations of

both species (Ellen Bauder, Ph.D., Department of Biology, San Diego

State University, pers. comm., 1993).

Several large wet meadows in the Laguna Mountains of the Cleveland

National Forest support Limnanthes gracilis ssp. parishii. However, the

creation of two shallow reservoirs in these meadows have resulted in

year round inundation of potential L.g. ssp. parishii habitat (Winter

1991).

Traffic from off-road vehicles, horses, and hikers in the Laguna

Mountain meadows indirectly impacts Limnanthes gracilis ssp. parishii

by altering the composition of the plant community over time. Such

damage frequently occurs in spring when the soils are saturated and

subject to compaction (Winter 1991). Loss and modification of L.

gracilis ssp. parishii habitat has been documented as a result of

trampling, erosion, and alteration of hydrology at most of the

locations occupied by this species (Bauder 1992). L. gracilis ssp.

parishii may be more subject to trampling than Downingia concolor var.

brevior because it grows around the drier periphery of meadows. Some

equestrian camps in Laguna Mountain meadows have displaced habitat of

L. g. ssp. parishii, and its proximity to other camps has resulted in

trampling (Bauder 1992).

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

Overutilization is not known to be a threat to the two plant taxa

under consideration in this proposed rule. Vandalism or collection are

not known to threaten these species.

C. Disease or Predation

Disease is not known to be a factor affecting the taxa under

consideration in this rule. Consumption of individual plants by grazing

animals has been known to impact the reproduction of these annual

plants and has had other affects, such as trampling, erosion (see

Factor A) and the introduction of non-native species (see Factor E).

Grazing was discontinued on Helix Water District-owned lands at

Cuyamaca Lake in 1986 when Downingia concolor var. brevior was believed

to be extinct as a result of grazing (David Hogan, San Diego

Biodiversity Project, in litt., 1990; Joseph Young, Helix Water

District, pers. comm., 1993). The plant re-established itself the

following season (Bauder 1992). Livestock grazing was terminated in

Cuyamaca State Park in 1956, with the exception of a 16 ha (40 ac)

parcel that was grazed until 1980 when it was acquired by the State

Park. Grazing still continues on privately owned pastures east of the

reservoir. The Cleveland National Forest still allows grazing in these

sensitive meadows but recently adopted late season grazing regimes to

avoid loss of individual plants due to actual consumption (Volgarino,

pers. comm., 1993).

D. The Inadequacy of Existing Regulatory Mechanisms

Existing regulatory mechanisms that could provide some protection

for these species include: (1) listing under the California Endangered

Species Act (CESA); (2) the California Environmental Quality Act (CEQA)

and the National Environmental Policy Act (NEPA); (3) conservation

provisions under section 404 of the Federal Clean Water Act (CWA) and

section 1603 of the California Fish and Game Code, (4) occurrence with

other species protected by the Federal Endangered Species Act; (5) land

acquisition and management by Federal, State, or local agencies, or by

private groups and organizations, and (6) local laws and regulations.

The California Fish and Game Commission has listed Downingia

concolor var. brevior and Limnanthes gracilis ssp. parishii as

endangered under the Native Plant Protection Act (NPPA) (Div. 2,

chapter 10, section 1900 et seq. of the California Fish and Game Code)

and the California Endangered Species Act (CESA) (Div. 3, chapter 1.5

section 2050 et seq.). After the California Department of Fish and Game

notifies a landowner that a State-listed plant occurs on his or her

property, the Fish and Game Code requires only that the landowner

notify the agency ``at least 10 days in advance of changing the land

use to allow salvage of such plant'' (Chapter 10, section 1913,

California Fish and Game Code). Therefore, although NPPA and CESA both

prohibit the ``take'' of State-listed plants (Chapter 10, sections 1908

and Chapter 1.5, section 2080, California Fish and Game Code), these

statutes are not adequate to protect the taking of such plants via

habitat modification or land use change by the landowner.

The California Environmental Quality Act (CEQA) (Public Resources

Code, section 21000 et seq.) requires full disclosure of the potential

environmental impacts of proposed projects. The public agency with

primary authority or jurisdiction over the project is designated as the

lead agency and is responsible for conducting a review of the project

and for consulting with the other agencies concerned with the resources

affected by the project. CEQA documentation is often inadequate or

incomplete, and compliance with CEQA is not monitored. Section 15065 of

the CEQA Guidelines requires a finding of significance if a project has

the potential to ``reduce the number or restrict the range of a rare or

endangered plant or animal.'' However, even if significant effects are

identified, the lead agency has the option to require mitigation

through changes in the project or to decide that ``overriding social

and economic considerations'' make mitigation infeasible (California

Public Resources Code, Guidelines, section 15093). In the latter case,

projects may be approved that cause significant environmental damage,

such as destruction of endangered plant species. Protection of listed

plant species under CEQA is therefore dependent upon the discretion of

the lead agency, hence, this is not adequate to ensure the survival of

a species.

The Cuyamaca Recreation and Park District is the lead agency that

is empowered to uphold and enforce CEQA regulations at Cuyamaca Lake

reservoir. However, unresolved conflicts exist regarding the use of

this area for recreation and habitat protection for state endangered

species. The Cuyamaca Recreation and Park District receives funding

from CDFG, State Bonds, California Division of Parks and Recreation,

U.S. National Park Service Land and Water Grants, and other sources,

which have been used to stock the reservoir with fish, build duck

blinds, a boat ramp, picnic facilities and a fishing trail around the

western portion of the reservoir between the dam and the dike. Projects

that use state money must comply with CEQA on each project or funding

can be withdrawn. Impacts to Limnanthes gracilis ssp. parishii and

Downingia concolor var. brevior occur during implementation of these

projects and may continue to occur as a result of maintenance and use

of these facilities. The Cuyamaca Recreation and Park District, acting

as the state lead agency, has issued negative declarations for its

improvement and maintenance activities, which exempts them from the

requirement for a full environmental analysis. Other signatory state

agencies have not monitored CEQA compliance by the Cuyamaca Recreation

and Park District (Jack Shu, California State Parks Department, pers.

comm., 1993). These factors have resulted in removal of plants and

habitat loss as discussed in factor A above.

While CEQA pertains to projects on non-Federal land, the National

Environmental Policy Act (NEPA) (42 U.S.C. 4321 to 4347) requires

disclosure of the environmental effects of projects within Federal

jurisdiction. Species that are listed by the State, but not proposed or

listed as threatened or endangered by the Federal government, are not

protected when a proposed Federal action meets the criterion for a

``categorical exclusion''. NEPA requires that each of the project

alternatives recommend ways to ``protect, restore and enhance the

environment'' and ``avoid and minimize any possible adverse effects''

when implementation poses significant adverse impacts. However, it does

not require that the lead agency select an alternative with the least

significant impacts to the environment (40 CFR 1500 et seq.). Federal

actions that may affect Federal threatened or endangered species

require consultation with the Fish and Wildlife Service under section 7

of the Endangered Species Act and must avoid jeopardizing the continued

existence of a listed plant species and destruction or adverse

modification of critical habitat.

The Cuyamaca Recreation and Park District is also subject to NEPA

because projects for recreational improvements may be funded through

the Federal Land and Water Grant program that is administered by the

National Park Service through the California Department of Parks and

Recreation. These projects would require NEPA review. Land-use planning

decisions at the local level are made on the basis of environmental

review documents prepared in accordance with CEQA or NEPA that often do

not adequately address ``cumulative'' impacts to non-listed species and

their habitat. State listed species that are candidates for Federal

listing receive no special consideration under NEPA.

Section 1603 of the California Fish and Game Code authorizes the

Department of Fish and Game to regulate streambed alteration. The

Department must be notified and approve any work that diverts, alters,

or obstructs the natural flow or changes the bed, channel, or banks of

any river, stream, or lake. If the Department does not respond within

30 days of the notification, the applicant may proceed with the work.

All waterways of the State, including streams, intermittent streams,

rivers, and lakes are subject to the Department's jurisdiction.

However, the Department of Fish and Game does not consider the creation

of wetlands for duck habitat to be regulated under section 1603. Thus,

a Streambed Alteration Agreement was not required for flooding the

streambed above Cuyamaca Lake reservoir for that purpose. Because the

dam has been used continuously since its construction in 1886,

justification of its continued use for recreation has been

grandfathered into law (William D. Smith, Lake Cuyamaca Recreation and

Park District, in litt., 1993). Therefore, Limnanthes gracilis ssp.

parishii and Downingia concolor var. brevior receive no protection

under section 1603.

Section 404 of the Clean Water Act authorizes the Army Corps of

Engineers (Corps) to regulate discharge of dredge or fill materials

into waters of the United States, including wetlands. The objective of

the Clean Water Act is to ``restore and maintain the chemical,

physical, and biological integrity of the Nation's waters'' (Pub. L.

92-500), which include navigable and isolated waters, headwaters, and

adjacent wetlands. However, no specific provisions exist that

adequately address the need to conserve candidate species. Therefore,

Limnanthes gracilis ssp. parishii and Downingia concolor var. brevior

currently receive no special consideration under section 404.

Even though some of the areas surrounding Cuyamaca Lake reservoir

are wetlands, water management activities are not regulated under

section 404 of the Clean Water Act, and these activities have the

potential to adversely affect the two taxa under consideration in this

proposed rule. Several small water impoundments in streams around

Cuyamaca Lake reservoir may qualify for authorization under Nationwide

Permit (NWP) No. 26 of the Clean Water Act if they are less than one

acre (0.4 ha) in size. Because projects affecting such streams or

wetlands may proceed without notifying the Corps, evaluation of their

impacts under section 404 is precluded. An individual permit may be

required by the Corps if projects otherwise qualifying under NWP 26 are

likely to have significant environmental impacts. However, the Corps is

generally reluctant to withhold authorization under NWP 26 unless the

existence of a Federally listed species is likely to be jeopardized or

if the action impacts a vernal pool (Bruce Henderson, Army Corps of

Engineers, pers. comm., 1993).

Section 404 of the Clean Water Act regulates clearing of vegetation

by mechanical means (e.g., bulldozing) but does not currently regulate

any method of clearing that does not disturb the soil or channel

bottom. Thus, the ongoing use of herbicides to remove vegetation from

Cuyamaca Lake reservoir is not regulated under section 404, although

water quality certification must be obtained from the Regional Water

Quality Control Board under section 401 of the Clean Water Act (Bruce

Henderson, pers. comm., 1993).

Limnanthes gracilis ssp. parishii and Downingia concolor var.

brevior have been exposed to artificial flooding and draining of their

habitat, herbicides, and trampling from maintenance vehicles and

recreational activities. For these reasons, the Service finds that

these species currently receive inadequate protection under section 404

of the Clean Water Act and section 1603 of the California Fish and Game

Code.

No federally listed species inhabit vernally wet meadows in the

Peninsular Ranges of southern California. Therefore, these two species

proposed for listing receive no federal regulatory protection resulting

from sympatry with listed species.

Limnanthes gracilis ssp. parishii is recognized by the Cleveland

National Forest as a ``sensitive species'' (Winter 1991). The Cleveland

National Forest has policies to protect sensitive plant taxa under its

jurisdiction, including attempting to establish these species in

unoccupied but suitable or historic habitat, encouraging land ownership

adjustments to acquire and protect sensitive plant habitat, conserving

meadow water tables, and protecting montane meadow habitats (Winter

1991). However, these guidelines have not been entirely effective. For

example, implementation of plans to supply an equestrian campground

with water from a well at Filaree Flat in the Laguna Mountains may

alter meadow hydrology (Volgarino, pers. comm., 1993). The Cleveland

National Forest has addressed trampling impacts to L.g. ssp. parishii

by placing interpretive signs and fencing around populations at the

Shrine Camp, Prado campgrounds, and Morris Ranch meadow. In addition,

an alternative location for a proposed campground at Filaree Flat is

being considered to avoid impacts to L.g. ssp. parishii. A late season

grazing regime has been enacted at several of these meadows (Winter

1991; Volgarino, pers. comm., 1993). Fencing sensitive habitat areas

minimizes impacts but does not prevent entry by hikers or mountain

bikers. In some cases, plants that remain unprotected within

campgrounds are severely trampled by campers. While Forest Service

management practices have reduced impacts in certain areas, the

majority of L.g. ssp. parishii populations are located on private lands

that currently do not receive adequate protection. No populations of

Downingia concolor var. brevior occur on lands under Forest Service

jurisdiction.

The California Department of Parks and Recreation has eliminated

grazing from meadows containing Limnanthes gracilis ssp. parishii at

Cuyamaca State Park. However, other impacts to these species and their

habitat continue to occur in this area, including trampling by horses,

unauthorized trails, vehicle parking, off-road vehicle use, diversion

of water flow, erosion, channelization, and water impoundment. No

habitat has been set aside exclusively for the protection of D.

concolor var. brevior (Bauder 1992).

The Santa Rosa Plateau Preserve is managed by The Nature

Conservancy for the long-term protection of sensitive species. However,

only a single, small population of Limnanthes gracilis ssp. parishii is

located within the preserve.

Local laws and regulations are insufficient to protect habitat for

Downingia concolor var. brevior and Limnanthes gracilis ssp. parishii.

For example, the County of San Diego generally does not provide

protection for sensitive plant species unless they are actually

Federally listed (Hogan, pers. comm., 1993).

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Stochastic extinction threatens both Downingia concolor var.

brevior and Limnanthes gracilis ssp. parishii by virtue of their small

population size and restricted distribution. The likelihood of finding

a normal distribution of genetic variability is reduced in small

populations (Jensen 1987). Reduced genetic variability may lower the

ability of these populations to survive. The potential for local

extirpation due to small population size can be exacerbated by

environmental conditions such as drought, flooding, or fire (Gilpin and

Soule 1986, Falk and Holsinger 1991).

Due to their accessibility, populations of these two taxa are

particularly vulnerable to trampling. As discussed under factor A

above, trampling from cattle occurs in meadows occupied by Limnanthes

gracilis ssp. parishii and Downingia concolor var. brevior in the

National Forest and private land holdings. As discussed under factor D

above, several measures were initiated during the past decade to

protect the vernally wet meadow ecosystem and associated sensitive

plant species at Cuyamaca State Park and the Cleveland National Forest.

However, these measures have not prevented trampling by hikers and

horses.

Introduced species of grasses and forbs have invaded many of

California's plant communities. Such weedy species can displace the

native flora by out competing them for nutrients, water, light, and

space. Weedy plant invasions are facilitated by disturbances such as

grazing, urban and residential developments, and various recreational

activities. Introduced weeds have become established in many portions

of the Laguna Mountains thereby reducing the amount of suitable habitat

for native plant species (Sproul 1979). For example, the invasion of

exotic species including Lolium perenne (ryegrass) and Poa pratensis

(Kentucky bluegrass) has altered the composition of habitats supporting

the two plant taxa under consideration in this proposed rule (Sproul

1979).

Trampling by livestock typically changes the composition of native

plant communities by reducing or eliminating those species that cannot

withstand trampling and predation (see Factors A and C), and enabling

more resistant (usually exotic) species to increase in abundance.

Introduction of seed from non-sterile hay and animal feces increases

the likelihood of invasion of exotic species and prevents re-

establishment of native plants. Taxa that were not previously part of

the native flora may be introduced and flourish under a grazing regime

and may reduce or eliminate native plant species through competition

for resources. Grazing is considered to be a threat to all populations

of Limnanthes gracilis ssp. parishii within the Cleveland National

Forest, primarily as a result of trampling and the invasion of non-

native species into sensitive plant habitats (Winter 1991).

The Service has carefully assessed the best scientific and

commercial information available regarding the past, present, and

future threats faced by these species in determining to propose this

rule. Based on this evaluation, the Service finds that Downingia

concolor var. brevior is in imminent danger of extinction throughout

all or a significant portion of its range due to habitat destruction

and degradation resulting from hydrologic alterations, grazing,

trampling by recreational activities, the inadequacy of existing

regulatory mechanisms, an increased probability of stochastic

extinction, and competition from exotic plant species. The Service

considered threatened status for this species, but determined that it

such status would not be in keeping with the purposes of the Act

because the single remaining population consists of only 8 to 23 stands

within a restricted range, and is at risk of extirpation due to

stochastic events such as water inundation. Therefore, the preferred

action is to list Downingia concolor var. brevior as endangered.

For the reasons discussed below, the Service finds that Limnanthes

gracilis ssp. parishii is likely to become endangered within the

foreseeable future throughout all or a significant portion of its

range. Threats to this taxon include the following: habitat destruction

and degradation resulting from hydrologic alterations, grazing,

trampling by recreational activities, the inadequacy of existing

regulatory mechanisms, stochastic extinction, and competition from

exotic plant species. The Service has determined that threatened rather

than endangered status is appropriate for L.g. ssp. parishii primarily

because the California Department of Parks and Recreation, the

Cleveland National Forest, and The Nature Conservancy have initiated

some measures to protect this species. Within these areas, management

activities have included fencing, signing, and monitoring of habitat

supporting L.g. ssp. parishii. However, most localities containing this

taxon remain vulnerable to trespass and trampling and to hydrologic

alterations. The largest population of this species occurs mostly on

private lands that are not protected. For these reasons, the Service

finds that L.g. ssp. parishii is likely to become endangered in the

foreseeable future if present threats and declines continue. The

alternative of not listing these species would result in inadequate

protection for these species, and would be inconsistent with the

purposes of the Act. For the reasons discussed below, the Service is

not proposing to designate critical habitat for these species at this

time.

Critical Habitat

Section 4(a)(3) of the Act, as amended, requires that, to the

maximum extent prudent and determinable, the Secretary propose

designation of critical habitat at the time a species is proposed for

listing as endangered or threatened. Section 4(b)(6)(C) further

indicates that a concurrent critical habitat designation is not

required if the Service finds that a prompt determination of endangered

or threatened status is essential to the conservation of the involved

species, or that critical habitat is not then determinable. The Service

finds that designation of critical habitat for Limnanthes gracilis ssp.

parishii and Downingia concolor var. brevior is prudent but not

presently determinable. Within 2 years of the publication date of this

rule the Service will designate critical habitat unless the designation

is found to be not prudent.

The Service intends to propose designation of critical habitat for

those populations of Limnanthes gracilis ssp. parishii and Downingia

concolor var. brevior that would not likely be imperiled by the threat

of vandalism, collecting, or other human activities. Section 7(a)(2) of

the Act requires Federal agencies to insure that their actions are not

likely to destroy or adversely modify critical habitat, or jeopardize

the continued existence of a listed species. On lands subject to

Federal funding, authorization, or licensing, critical habitat would

provide an added benefit to the conservation of these species. The

populations of L. gracilis ssp. parishii and D. concolor var. brevior

on land owned by the Cuyamaca Recreation and Park District, land

subject to funding through the National Park Service and the five

populations of L. gracilis ssp. parishii on National Forest land would

receive this added benefit from critical habitat designation. On non-

federal land, additional protection may be provided as a result of the

increased public awareness afforded by the critical habitat

designation. In addition, the designation of critical habitat could be

useful for State landowners and local regulatory agencies to identify

areas of special concern and to establish priorities for land

management and acquisition. Designation of critical habitat would be

likely to result in more attention and hence protection by the State

and county agencies (J. Shu, pers. comm., 1994).

Section 4(b)(2) of the Act requires the Service to consider

economic and other impacts of designating a particular area as critical

habitat. The Service must evaluate the effects of activities that occur

within the ranges of these plants, and gather data on precise habitat

requirements and ownership boundaries in order to precisely define the

critical habitat of these two plant taxa. In addition, the Service must

analyze the economics impacts that could result from the designation of

particular areas as critical habitat. Designation of critical habitat

for Limnanthes gracilis ssp. parishii and Downingia concolor var.

brevior is currently not determinable due to the need for this type of

information. A proposal to designate critical habitat at this time

would delay this proposed rule to list the species as threatened or

endangered. The Service finds that a prompt determination of endangered

or threatened status for these species is essential to ensure the full

benefits of conservation measures under the Act. The Service intends to

propose a critical habitat designation at a later date. After receiving

additional information, the Service may determine that designation of

critical habitat is not prudent for L. gracilis ssp. parishii or D.

concolor var. brevior.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Act include recognition, recovery actions,

requirements for Federal protection, and prohibitions against certain

practices. Recognition through listing encourages and results in

conservation actions by Federal, State, and private agencies, groups,

and individuals. The Act provides for possible land acquisition and

cooperation with the States and requires that recovery actions be

carried out for all listed species. 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

informally with the Service on any action that is likely to jeopardize

the continued existence of a proposed species or result in destruction

or adverse modification of proposed critical habitat. 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 such a species or to

destroy or adversely modify its critical habitat. If a Federal action

may affect a listed species or its critical habitat, the responsible

Federal agency must enter into formal consultation with the Service.

Federal agencies expected to have involvement with Limnanthes

gracilis ssp. parishii and Downingia concolor var. brevior include the

Forest Service, Army Corps of Engineers, and National Park Service.

These agencies either administer lands containing these species or

authorize, fund, or otherwise conduct activities that may affect these

species. In addition, the allocation of funding through the Federal

Emergency Management Act, Housing and Urban Development, Federal

mortgage programs, and the Veteran's Administration may be involved

with these species.

The Act and its implementing regulations found at 50 CFR section

17.61, 17.62, and 17.63 for endangered, and 17.71 and 17.72 for

threatened species, set forth a series of general prohibitions and

exceptions that apply to all endangered or threatened plants. With

respect to Downingia concolor var. brevior and Limnanthes gracilis ssp.

parishii, all trade prohibitions of section 9(a)(2) of the Act,

implemented by 50 CFR 17.61 or 17.71, 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 any such species in interstate or foreign commerce, or to

remove and reduce to possession any such species from areas under

Federal jurisdiction.

Seeds from cultivated specimens of threatened plant species are

exempt from these prohibitions provided that a statement of

``cultivated origin'' appears on their containers. In addition, for

listed plants, the 1988 amendments (Pub. L. 100-478) to the Act

prohibit the malicious damage or destruction on Federal lands and the

removal, cutting, digging up, or damaging or destroying of listed

plants in knowing violation of any State law or regulation, including

State criminal trespass law. Certain exceptions apply to agents of the

Service and State conservation agencies. The Act and 50 CFR 17.62,

17.63, and 17.72 also provide for the issuance of permits to carry out

otherwise prohibited activities involving endangered or threatened

species under certain circumstances.

Permits may be issued to carry out otherwise prohibited activities

involving endangered or threatened plants under certain circumstances.

Regulations governing permits are codified at 50 CFR 17.62 and 17.63.

Such permits are available for scientific purposes, to enhance the

propagation or survival of the species. Trade permits will not likely

be sought or issued for any of the plant species considered herein

because they are not in cultivation.

Requests for copies of the regulations on plants and inquiries

regarding them should be addressed to the U.S. Fish and Wildlife

Service, Endangered Species Permits, 911 N.E. 11th Avenue, Portland,

Oregon, 97232-4181 (telephone 503/231-6241).

Public Comments Solicited

The Service intends that any final action resulting from this

proposal will be as accurate and as effective as possible. Therefore,

comments or suggestions from the public, other concerned governmental

agencies, the scientific community, industry, or any other interested

party concerning this proposed rule are hereby solicited. Comments

particularly are sought concerning:

(1) Biological, commercial trade, or other relevant data concerning

any threat (or lack thereof) to Limnanthes gracilis ssp. parishii and

Downingia concolor var. brevior.

(2) The location of any additional populations of these species and

the reasons why any habitat should or should not be determined to be

critical habitat as provided by section 4 of the Act;

(3) Additional information concerning the range, distribution, and

population size of these species; and

(4) Current or planned activities in the subject area and their

possible impacts on these species.

The final decision on this proposal will take into consideration

the comments and any additional information received by the Service,

and such communications may lead to a final regulation that differs

from this proposal.

The Endangered Species Act provides for a public hearing on this

proposal, if requested. Requests must be received within 45 days of the

date of publication of the proposal. Such requests must be made in

writing and addressed to the Field Supervisor of the Carlsbad Field

Office (see ADDRESSES section).

National Environmental Policy Act

The Fish and Wildlife Service has determined that an Environmental

Assessment, as defined under the authority of the National

Environmental Policy Act of 1969, need not be prepared in connection

with regulations adopted pursuant to section 4(a) of the Endangered

Species Act of 1973, as amended. A notice outlining the Service's

reasons for this determination was published in the Federal Register on

October 25, 1983 (48 FR 49244).

References Cited

A complete list of all references cited herein is available upon

request from the U.S. Fish and Wildlife Service, Carlsbad Field

Office (see ADDRESSES above).

Author

This rule was prepared by the staff of the Carlsbad Field Office

(see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, and Transportation.

Proposed Regulation Promulgation

PART 17--[AMENDED]

Accordingly, it is hereby proposed to amend Part 17, Subchapter B

of chapter I, title 50 of the Code of Federal Regulations, 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. It is proposed to amend Sec. 17.12(h) by adding the following,

in alphabetical order under the families indicated, to the List of

Endangered and Threatened Plants:

Sec. 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

----------------------------------------------------------------------------------------------------------------

Species

------------------------------------------- Historic range Status When listed Critical Special

Scientific name Common name habitat rules

----------------------------------------------------------------------------------------------------------------

* * * * * * *

Campanulaceae--Bellf

lower family:

* * * * * * *

Downingia Cuyamaca Lake U.S.A. (CA)........ E ........... NA NA

concolor var. downingia.

brevior.

* * * * * * *

Limnanthaceae--False

mermaid family:

* * * * * * *

Limnanthes Parish's meadowfoam. U.S.A. (CA)........ T ........... NA NA

gracilis ssp.

parishii.

* * * * * * *

----------------------------------------------------------------------------------------------------------------

Dated: July 26, 1994.

Mollie H. Beattie,

Director, Fish and Wildlife Service.

[FR Doc. 94-18930 Filed 8-1-94; 8:45 am]

BILLING CODE 4310-55-P