Endangered and Threatened Wildlife and Plants; Withdrawal of Proposed Rule to List Parish's Meadowfoam, as Threatened, and Cuyamaca Lake Downingia as Endangered

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC65

Endangered and Threatened Wildlife and Plants; Withdrawal of

Proposed Rule to List Parish's Meadowfoam, as Threatened, and Cuyamaca

Lake Downingia as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of withdrawal.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) withdraws the

proposal to list Cuyamaca Lake downingia (Downingia concolor var.

brevior) as an endangered species and Parish's meadowfoam (Limnanthes

gracilis ssp. parishii) as a threatened species under the Endangered

Species Act of 1973, as amended (Act).

The Service finds that information now available, discussed below,

justifies withdrawal of the proposed listings of these species as

endangered or threatened. Various local, State, and Federal agencies

have developed and approved a Conservation Agreement that provides

adequate protection for these species throughout a significant portion

of their range. This agreement is entitled: Conservation Agreement for

the Preservation of Cuyamaca Lake Downingia (Downingia concolor var.

brevior) and Parish's Meadowfoam (Limnanthes gracilis ssp. parishii).

The Helix Water District, Lake Cuyamaca Recreation and Park District,

California Department of Parks and Recreation (State Parks), California

Department of Fish and Game (CDFG), the Service, and the U.S. Forest

Service are signatories to the Conservation Agreement, which the

Service signed on August 5, 1996. The Conservation Agreement addresses

threats to both species and recovery actions through a combination of

measures. These measures address impacts resulting from alteration of

hydrology in the Cuyamaca Valley, grazing, recreational activities, and

off-road vehicle (ORV) access over the majority of the range of these

two plant species. Because implementation of the measures in this

conservation agreement significantly reduces the risks to Downingia

concolor var. brevior and Limnanthes gracilis ssp. parishii, the

Service concludes that listing is not warranted.

ADDRESSES: The complete file for this rule is available for public

inspection, by appointment, during normal business hours at the, U.S.

Fish and Wildlife Service, Carlsbad Field Office, 2730 Loker Avenue

West, Carlsbad, California, 92008.

FOR FURTHER INFORMATION CONTACT: Fred Roberts (see ADDRESSES section)

telephone 619/431-9440.

SUPPLEMENTARY INFORMATION:

Background

On August 4, 1994, the Service published in the Federal Register

(59 FR 39879) a proposal to list Downingia concolor var. brevior

(Cuyamaca Lake downingia) as endangered and Limnanthes gracilis ssp.

parishii (Parish's meadowfoam) as threatened. These species occur in

association with wetlands 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 plants are restricted to grassy meadows or

drainages that are vernally wet (wet during the rainy season) with

saturated soil conditions and shallow pools for several weeks at a

time. In the vicinity of Lake Cuyamaca these shallow pools are

associated with drier mounds called mima mounds. This type of

physiography is referred to as montane meadow-vernal pool association.

Downingia concolor var. brevior is restricted to the Cuyamaca

Valley in the Cuyamaca Mountains of central San Diego County,

California. This locality also supports the largest concentration of

Limnanthes gracilis ssp. parishii. Although the vernal pool and mima

mound topography has been 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 central California or coastal San Diego County (e.g., Deschampsia

danthonioides (annual hairgrass), Blennosperma nanum (common

blennosperma)), or occur in highly restricted distributions in the

mountains of southern California (e.g., Delphinium hesperium ssp.

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

Downingia concolor var. brevior (Cuyamaca Lake downingia) was

described by McVaugh (1941) based on a collection by 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) recognized this plant as Downingia

concolor var. brevior, which is consistent with 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 millimeters (mm) (0.5 in)

long and the seeds have linear striations (grooves). Downingia 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 two members of this genus that occur in southern California,

Downingia cuspidata and Downingia bella, by the form of the striations

on the seed, the color of the flower, and the hair or lack of hair on

the corolla lobes. It can be distinguished from the more northern

Downingia 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 Lake Cuyamaca in the Cuyamaca Valley of San Diego County,

California, on private land owned by the Helix Water District, public

lands within Rancho Cuyamaca State Park and, to a lesser extent, other

private lands. Historically, the population of Downingia concolor var.

brevior was located throughout much of the valley floor. The plant has

now been largely restricted to the shore of the lake, extending onto

the valley floor only during dry years. From 1988 to 1992, one

population existed in the vicinity of Lake Cuyamaca, consisting of

between 9 and 24 stands. These stands occupied a total of less than 80

hectares (ha) (200 acres (ac)) and frequently occupied less than 40 ha

(100 ac). In years with little flowering, the total observed

distribution of Downingia concolor var. brevior is less than 0.4 ha (1

ac) (E. Bauder, in litt., October 1994). 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 Jepson (1936) as Limnanthes versicolor var. parishii. The

description was based on specimens collected by Parish at the Stonewall

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

[[Page 5561]]

California. Mason (1952) recognized Limnanthes versicolor var. parishii

as Limnanthes gracilis var. parishii, based on flower and fruit

morphology. Beauchamp (1986b) elevated the plant to a subspecies to be

consistent with other treatments of this genus and noted the geographic

separation (over 1,200 kilometers (km) (744 miles (mi)) of the taxon

from Limnanthes gracilis 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 (0.8 to 2.3 in) long and divided. The flowers are

bowl-shaped, the petals are 8 to 10 mm (0.32 to 0.4 in) long with a

white or occasionally a cream-colored base that becomes pink (Ornduff

1993). The fruit is rough textured. Limnanthes 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).

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. An additional

small population is known from the Santa Rosa Plateau, Riverside

County, California. Fewer than 20 populations of this taxon exist. The

largest population occurs in the Cuyamaca Valley in the vicinity of

Lake Cuyamaca and Stonewall Creek where it is restricted to the shore

of Lake Cuyamaca at maximum inundation. About one third of this

population is on private land (including land owned by the Helix Water

District), one third is on California State Parks and Recreation lands,

and the remainder is on Forest Service land (E. Bauder, in litt.,

October 1994).

Historically, the Cuyamaca Valley population of Limnanthes gracilis

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

the Cuyamaca Valley population of Limnanthes 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 ha (300 ac) of a potential 800 ha

(2,000 ac) of the Cuyamaca Valley and Stonewall Creek area are occupied

by Limnanthes 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, Limnanthes 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

generally smaller than the Cuyamaca Valley population, both in number

of individuals and the extent of occupied habitat. They range in size

from less than 2 ha (5 ac) to as much as 40 ha (100 ac), and most

populations contain fewer than 1000 individuals. However, at least 4 of

the 6 populations that occur on Forest Service lands contain 5,000 to

30,000 individuals and one extends over 60 ha (150 ac). 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).

An unauthorized attempt to introduce the plant to National Forest lands

in the Laguna Mountains from seeds gathered from the Cuyamaca Valley

population (Winter 1991, CNDDB 1992) was unsuccessful (Forest Service,

in litt., September 1994).

Previous Federal Action

Federal government action on the two plants considered in this rule

began as a result of section 12 of the Act, 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 (=

Limnanthes gracilis 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 Limnanthes gracilis 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 also included in this Federal Register

notice.

General comments received in response to the 1976 proposal were

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

Although the Act amendments of 1978 required all proposals over two

years old to be withdrawn, a one-year grace period was given to those

proposals published before the enactment of the 1978 amendments. 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 finalized including Limnanthes gracilis 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 were 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 the 1983 and 1985 supplements as category 2

candidate taxa (species for which data in the Service's possession

indicated listing may be appropriate, but for which additional

biological information is needed to support a proposed rule). The plant

Notice of Review 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.

On February 28, 1996, the Service published a Notice of Review in the

Federal Register (61 FR 7596) that discontinued the designation of

category 2 species as candidates, which included both species as

candidates for listing.

Section 4(b)(3)(B) of the Act 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.

[[Page 5562]]

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 annually in October of 1984 through 1992.

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

petition with respect to Limnanthes gracilis ssp. parishii and 864

other species in the December 9, 1993, Federal Register (58 FR 64828).

One reason was cited as the basis for this finding on this species:

data was not then available to the Service in late summer 1993 relating

to current threats (i.e., one of the five factors described within the

proposed rule 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). In early 1994, the Service obtained

completed survey and other data that adequately described those factors

that placed Limnanthes gracilis ssp. parishii at risk of extinction.

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 Downingia concolor var. brevior and

published a 90-day finding on August 31, 1991 (56 FR 42966) that

substantial information existed indicating that the requested action

may be warranted.

A proposed rule to list Downingia concolor var. brevior as

endangered and Limnanthes gracilis ssp. parishii as threatened was

published in the Federal Register on August 4, 1994 (59 FR 39879). The

Service extended the public comment period to October 31, 1994 and held

a public hearing on October 19, 1994, in Rancho Bernardo, California

(59 FR 49045). On April 10, 1995, Congress enacted a moratorium

prohibiting work on listing actions (Public Law 104-6) and eliminated

funding for the Service to conduct final listing actions. The

moratorium was lifted on April 26, 1996, by means of a Presidential

waiver, at which time limited funding for listing actions was made

available through the Omnibus Budget Reconciliation Act of 1996 (Public

Law 104-134, 100 Stat. 1321, 1996). The Service published guidance for

restarting the listing program on May 16, 1996 (61 FR 24722).

This withdrawal notice is in accordance with the listing priority

guidance for fiscal year 1997 published on December 5, 1996 (61 FR

64475). The processing of a proposed listing, including the completion

of a withdrawal notice, is a Tier 2 action under this guidance (61 FR

64479).

Development of a Conservation Agreement

Immediately prior to the Service's decision to propose Downingia

concolor var. brevior for listing as endangered and Limnanthes gracilis

ssp. parishii for listing as threatened, the Helix Water District

initiated an effort to address conservation measures required to

provide adequate protection of three plant taxa, including the two

plants in this notice. Helix Water District manages the largest

populations of both plant taxa. During the late summer and fall of

1994, the effort was expanded to include various local, State, and

Federal agencies with the intent of producing a Memorandum of

Understanding (MOU) that would provide adequate protection for these

species throughout a significant portion of their ranges. Development

of the MOU included guidance from local botanical experts familiar with

these two rare plants. The resulting MOU and Conservation Agreement

were signed by the Service on August 5, 1996. Signatories to the

agreement include: the Helix Water District, Lake Cuyamaca Recreation

and Park District, State Parks, California Department of Fish and Game

(CDFG), the Service, and Forest Service. The Conservation Agreement

addresses over 80 percent of the remaining Downingia concolor var.

brevior population (Helix Water District, Lake Cuyamaca Recreation and

Park District, and State Parks) and about 70 percent (as above and

including U.S. Forest Service lands) of the Limnanthes gracilis ssp.

parishii populations.

Under the terms of the Conservation Agreement, the Helix Water

District and Lake Cuyamaca Recreation District have agreed to monitor

and manage inundation of Downingia and Limnanthes habitat, control

recreational access, and exclude livestock grazing of this habitat by

maintaining fences. Helix Water District also will not transfer water

from Lake Cuyamaca into the habitat for these species without prior

consultation with CDFG and the Service.

Helix Water District and the Lake Cuyamaca Recreation District have

identified sensitive areas for Downingia concolor var. brevior and

Limnanthes gracilis ssp. parishii. These areas include the majority of

the largest stands of these taxa within the eastern basin of the

Cuyamaca Valley above the dike. No activities that impact these species

are allowed within these sensitive areas. To the extent practicable,

the Helix Water District, Lake Cuyamaca Recreation and Park District,

State Parks and the Forest Service will relocate trails away from

Limnanthes and Downingia habitat. Land management signatories also have

agreed to allow monitoring of the status of these two taxa.

The Helix Water District, Lake Cuyamaca Recreational and Park

District, and State Parks also will exclude livestock grazing and avoid

activities that could result in erosion on Limnanthes and Downingia

habitat. The Forest Service, conforming with a 1991 Habitat Management

Plan for Limnanthes gracilis ssp. parishii, will continue to monitor

and manage grazing activities to reduce impacts to the species.

Additionally, under the Conservation Agreement, Helix Water District,

Lake Cuyamaca Recreational and Park District, and State Parks agree to

fully comply with California Environmental Quality Act (CEQA)

requirements, section 404 of the Federal Clean Water Act, and section

1603 of the CDFG Code regarding projects that may affect these species.

These parties also agree to consult with CDFG and the Service for

activities that are beyond the normal activities of these agencies as

defined in the Conservation Agreement. The Conservation Agreement will

remain in effect until after August 1999. At the end of this period,

the Conservation Agreement must be reviewed and either modified,

renewed, or terminated. If the Conservation Agreement is terminated,

the status of Downingia concolor var. brevior and Limnanthes gracilis

var. parishii will be reassessed by the Service. If the Service

determines at any time, that additional Federal protection is

warranted, the Service will take appropriate listing action under the

Act.

The Service believes that the Conservation Agreement ensures the

implementation of conservation measures that reduce the threats to

Downingia concolor var. brevior and Limnanthes gracilis ssp. parishii

to the point that listing is not warranted. The Service therefore

withdraws the proposal to list Downingia concolor var. brevior as

endangered, and Limnanthes gracilis ssp. parishii as threatened.

Public Comments on the Proposed Rule

In the August 4, 1994, proposed rule (59 FR 39879), the Federal

Register

[[Page 5563]]

notification of a public hearing (59 FR 49045), and during two comment

periods (August 4 to September 19, 1994, and September 26 to October

31, 1994), all interested parties were requested to submit factual

reports or information to be considered in making a final listing

determination. Appropriate Federal and State agencies, local

governments, scientific organizations, and other interested parties

were contacted and asked to comment. Legal notices of the availability

of the proposed rule were published in the Riverside Press Enterprise

and San Diego Union Tribune on August 13, 1994. A legal notice of the

public hearing which invited general public comment was published in

the Union Tribune on September 29, 1994.

The Service received 23 written and oral comments. Of the 23

comments, 10 supported the proposed action, 9 opposed it, and 4 stated

neither support nor opposition. The Service held a public hearing on

October 19, 1994, at the Radisson Hotel in Rancho Bernardo, California.

The hearing was conducted to allow comments on two additional proposed

rules, which addressed the San Diego fairy shrimp (Branchinecta

sandiegonensis), the Laguna Mountain skipper (Pyrgus ruralis lagunae)

and the quino checkerspot (Euphydryas editha quino). A total of 24

individuals provided oral testimony. Fifteen of those individuals

provided testimony regarding the proposed rule to list Downingia

concolor var. brevior and Limnanthes gracilis ssp. parishii

Written and oral comments are incorporated into this withdrawal

where appropriate. Two commenters recommended that a cooperative effort

be made by all affected agencies to protect the species. About half the

comments were directly related to the status of these plants in the

Cuyamaca Valley. Many of the comments supporting or neutral to the

listing provided substantive factual information that documented risks

to these taxa, or provided additional background data. Substantive

comments opposing the listing generally discussed the adequacy of

existing regulatory mechanisms then in place to protect these plants,

or the proposed Multispecies Conservation Plan (MSCP) of coastal San

Diego County. Both species are outside the MSCP planning area. Because

of the development and signing of the Conservation Agreement, which

covers a majority of the known populations of both plants, a commitment

to the conservation of these plants has been assured, rendering most of

the comments addressing threats to the species as moot, outdated, or

otherwise irrelevant to this withdrawal notice. The Service carefully

considered all comments submitted relevant to this decision to withdraw

the proposed listing. Comments submitted are available for review at

the Carlsbad Field Office (see ADDRESSES section).

Summary of Factors Affecting the Species

The Service must consider five factors described in section 4(a)(1)

of the Act when determining whether to list a species. These factors,

and their application to the Service's decision to withdraw the

proposal to list Downingia concolor E. Greene var. brevior McVaugh

(Cuyamaca Lake downingia) and Limnanthes gracilis Howell ssp. parishii

(Jepson) Beauchamp (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 have

contributed to the decline of Limnanthes gracilis ssp. parishii and

Downingia concolor var. brevior. The habitat for both plants also has

been threatened by alterations of hydrology, recreational developments,

off-road vehicle (ORV) use, trampling, and the introduction of exotic

plants.

The Conservation Agreement addresses factors described above that

result in threatened destruction, modification, and reduction of

habitat loss (see discussion under previous section titled

``Development of a Conservation Agreement''). The Service considers the

required actions by the Helix Water District, Lake Cuyamaca Recreation

and Park District, State Parks, and the Forest Service under the

Memorandum of Understanding within the Conservation Agreement to be

adequate for conservation and recovery of the two plants. Actions

required under the Conservation Agreement terminate or minimize the

impacts to habitat from inundation, recreational activities, off-road

vehicle access, and the indirect effects of these activities on

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

Hydrological Alteration

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 Lake Cuyamaca reservoir support the

most significant populations of Limnanthes gracilis ssp. parishii and

Downingia concolor var. brevior. Nearly the entire Cuyamaca Valley was

originally a montane meadow-vernal pool complex, except the western

end, which supported a small marsh (Bauder 1992, Ball 1994). Dredging

during dam construction in 1886-1887 altered the natural topography of

the valley, the western marsh, and the valley's 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.

Further loss of wet meadow habitat can result from excessive water

inundation at Lake Cuyamaca 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 these species cannot tolerate long periods of out-of-

season inundation and are currently absent entirely from areas with

long duration impoundment (E. Bauder, in litt., October 1994). 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, a

condition that has occurred as recently as 1993 (Hugh Marx, Lake

Cuyamaca Recreation and Park District Manager, pers. comm., 1993).

Limnanthes gracilis ssp. parishii is less able to recover from

excessive inundation than Downingia concolor var. brevior, as shown by

the lack of re-establishment in areas of previous inundation (Bauder

1992).

Under terms of the Conservation Agreement, the Helix Water District

will closely monitor the status of inundation in the eastern basin

within the Cuyamaca Valley above the dike. This area functions as

habitat to the largest populations of Downingia concolor var. brevior

and Limnanthes gracilis ssp. parishii and is inundated to varying

degrees dependent on rainfall and pumping activities by Helix Water

District. While under normal operating conditions, Helix Water District

generally has removed most of the water from the east basin by May 15.

However, in wet years, the basin can remain

[[Page 5564]]

flooded for longer periods. Additionally out-of-season flooding of the

east basin has occurred. Extended inundation retards seed germination

(Bauder 1992). Under section III.B.2.b of the MOU, Helix Water District

has committed to remove water from the east basin by May 15 of each

year. On April 1, Helix Water District will advise CDFG and the Service

on the status of water transfer from the east basin. Operations that

result in flooding of the east basin out-of-season are considered

activities that occur beyond normal operations. Under section IV.B of

the MOU, CDFG and the Service must be consulted prior to any non-

routine operation that may result in extended or out-of-season

inundation of Downingia and Limnanthes habitat.

A variety of indirect impacts are associated with the diversion of

water entering the Lake Cuyamaca reservoir basin. Diversion can result

in the alteration of small drainages by down cutting and streambank

erosion, which contributes to the loss of potentially suitable habitat

upstream of Lake Cuyamaca. Fluctuating lake levels also can increase

channel erosion by changing the gradient and velocity of surrounding

drainages. Erosion can further be intensified by a decrease in

groundwater levels caused by numerous wells in the area. However,

significant erosion resulting from fluctuating lake levels is not

apparent at this time (Ball 1994). Roads without adequate culverts also

divert water flow. Road maintenance and herbicidal weed abatement often

precludes 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 alien species (e.g., Polygonum sp.

(knotweed) and Potentilla norvegica (rough cinquefoil), or favors

replacement by more disturbance tolerant native species (e.g.,

Polygonum amphibium (water smartweed), Juncus xiphoides (iris-leaved

rush), and Ranunculus aquatilus (buttercup)) (E. Bauder, in litt.,

October 1994, L. Henrickson, in litt., October 1994). These indirect

effects can have significant, long-term impacts on the meadow habitats

and associated sensitive plant species.

Erosion damage resulting from water diversion and road maintenance

must be minimized under terms of the Conservation Agreement. According

to section III.B.2.c.(4), the Forest Service, Helix Water District,

Lake Cuyamaca Recreation and Park District, and State Parks must

cooperate in minimizing siltation and erosion on their lands to the

extent practicable. Any such operations must be coordinated with CDFG

and the Service. Any activities that take place beyond normal

operations that result in water diversion related erosion would first

require consultation with CDFG and the Service per section IV.B of the

MOU. Water diversion will continue to occur unmonitored in areas that

are not covered by the Conservation Agreement. Impacts in these areas,

however, will not significantly affect the overall status of these

plant taxa because these areas comprise only a small proportion of the

total populations.

Applications of herbicidal weed treatments at Lake Cuyamaca are

normal operations of the Lake Cuyamaca Recreation and Park District

that could affect these two rare plant taxa. However, as stated in the

Conservation Agreement, application of herbicides is being restricted

to Cuyamaca Lake in the west basin. Any application of herbicides in

the east basin would be considered beyond normal operations and thus

the Lake Cuyamaca Park and Recreation district would consult CDFG and

the Service prior to taking such action per section IV.B of the MOU.

Implementation of the above actions reduces the indirect effects of

habitat modification that can result in alien plant species

competition, or replacement by more tolerant and versatile native

species that may displace rare plant species.

Recreation

Direct loss of both species' habitat from recreational activities

has been substantial. In many cases, loss of habitat for both species

has benefited from the construction of recreational facilities. Traffic

from ORVs, horses, and hikers in the Laguna Mountains meadows

indirectly impact 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 Limnanthes 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).

Under terms of the Conservation Agreement, traffic from ORVs and

other recreational activities must be minimized or eliminated. Helix

Water District and the Lake Cuyamaca Recreation and Park District are

required to monitor and repair fencing in a timely manner to prevent

human trespassing within sensitive species habitat (MOU section

III.B.2.b). No recreational activities are allowed within designated

sensitive areas. The Forest Service and the Al-Bahr Shrine Camp (a

manager of a private inholding) will jointly maintain fencing to

exclude vehicle traffic from sensitive species habitat (MOU section

III.B.6.e). Within the National Forest, as per existing Habitat

Management Guidelines (Forest Service 1991), hikers and riders are

restricted to existing trails. State Parks is examining activities at

Los Caballos Horse Camp to determine how impacts to these species can

be reduced or eliminated (MOU section III.B.2.e.(10)). While some

recreational impacts and ORV activity will persist in areas not under

jurisdiction of the Conservation Agreement, these areas do not contain

large populations and these impacts will not be significant to the

overall status of the two species.

Development

Direct loss of both species' habitat has taken place as result of

recreational development, trail construction, and reservoir

development. However, significant additional development within the

habitat of these two species is not anticipated. Within areas covered

by the Conservation Agreement, Helix Water District and the Cuyamaca

Lake Recreation and Park District have agreed that no activities

detrimental to these species will occur within designated sensitive

areas. Future development is not identified as ``normal operations'' on

Helix Water District, State Park, or Forest Service lands. Development

activities would be beyond normal operations and these agencies would

consult with CDFG and the Service prior to taking actions that would

harm these species. While these conditions would not apply on private

lands managed by owners that are not signatories to the Conservation

Agreement, the majority of the Limnanthes gracilis ssp. parishii

populations are on inholdings within the National Forest and are not

likely to be subject to significant development. Development could take

place on private lands outside Helix Water District lands that support

Downingia concolor var. brevior. These lands are adjacent to a major

highway and are not National Forest inholdings. However, these

populations represent less than 20 percent of the total known

populations of this species. Development in these areas may also be

restricted under regulations pertaining to water quality within the

Cuyamaca Valley watershed.

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 withdrawal.

[[Page 5565]]

C. Disease or predation. Disease is not known to be a factor

affecting the taxa considered in this rule. Grazing by cattle was

identified as a threat in the proposed rule. Consumption of individual

plants by grazing animals has been known to impact the reproduction of

these annual plants and has had other effects, such as trampling,

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

Factor E). The extent of grazing impacts has been declining over time.

Grazing was discontinued on Helix Water District-owned lands at Lake

Cuyamaca in 1988 when water quality issues were raised and Downingia

concolor var. brevior was believed to be extinct as a result of grazing

(David Hogan, San Diego Biodiversity Project, in litt., 1990; Larry

Hendrickson, Friends of Cuyamaca Valley, in litt., 1994). The plant re-

established itself in the following season (Bauder 1992). Livestock

grazing was terminated in Rancho Cuyamaca State Park in 1956, with the

exception of a 16 ha (40 ac) inholding that was grazed until 1980 when

it was acquired by the State Park. Following the adaption of a 1991

Habitat Management Guide for montane meadows and riparian areas, the

Forest Service implemented a late season grazing regime (after

meadowfoam plants have set seed); during the 4 subsequent years of

monitoring no significant effects of grazing on Limnanthes. gracilis

ssp. parishii have been detected (Forest Service, in litt., September

1994). The Conservation Agreement specifically addresses grazing

impacts and assures that grazing practices will not take place on Helix

Water District lands or California Parks and Recreation Lands. On

Forest Service lands, the management plan limits the number of animals

grazing and controls the timing and duration of grazing so as to

minimize impacts on Limnanthes gracilis ssp. parishii. The management

plan also requires monitoring of the population status of the plant.

D. The inadequacy of existing regulatory mechanisms. The Service

evaluated existing Federal, State, and local regulatory mechanisms

prior to preparing the proposed rule for listing the two plant taxa.

The Service found evidence of inadequacy of the existing regulatory

mechanisms at that time. These regulatory mechanisms included: (1)

Listing under the California Endangered Species Act (CESA); (2) the

California Environmental Quality Act (CEQA) and National Environmental

Policy Act (NEPA); (3) conservation provisions under the section 404 of

the Federal Clean Water Act and Section 1603 of the California Fish and

Game Code, (4) occurrence with other species protected by the 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 Service believes that actions prescribed and

implemented in the Conservation Agreement are sufficient to assure that

adequate regulatory mechanisms protect these two plant taxa.

The California Fish and Game Commission has listed Downingia

concolor var. brevior and Limnanthes gracilis var. parishii as

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

chapter 10, section 1900 et seq. of the CDFG Code) and the CESA.

Projects that have impacted these species have occurred, however,

without coordination with the State, or without the State's knowledge.

While some decline is anticipated to continue, the majority of

populations of both species receive the benefits of the Conservation

Agreement, which already has resulted in increased coordination with

the State and recognition by land managers.

The CEQA (Public Resources Code, section 21000 et seq.) requires

full disclosure of the potential environmental impacts of proposed

projects. The public agency with the 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.

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 to the project or to decide that

``overriding social and economic considerations'' make mitigation not

feasible (California Public Resources Code, Guidelines, section 15093).

In the latter case, projects may be approved that cause significant

environmental damage, such as destruction of an endangered plant

species. Protection of listed plant species under CEQA is therefore

dependent upon the discretion of the lead agency.

Cuyamaca Recreation and Park District is the lead agency that is

empowered to uphold and enforce CEQA regulations at Cuyamaca Lake.

State Parks is the lead agency that is empowered to uphold and enforce

CEQA regulations at Rancho Cuyamaca State Park. While these agencies

have not consistently complied with CEQA requirements for projects that

have affected Downingia and Limnanthes, under terms of the Conservation

Agreement these agencies have agreed to use the State clearinghouse for

full agency circulation and public review of all new projects requiring

CEQA compliance that affect the sensitive habitats surrounding Lake

Cuyamaca (MOU section III.B.2.c.(7)). Although protection of the

species remains at the discretion of the lead agency, this agency is a

signatory to the Conservation Agreement and is thereby obligated to

protect the species. In addition, the use of the State clearinghouse

will facilitate agency and public review, and comment on any proposed

actions which might impact the species.

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.

The Cuyamaca Recreation and Park District also is subject to NEPA

for recreational improvements that are funded through the Federal Land

and Water Grant, a program that is administered by the National Park

Service through the California Department of Parks and Recreation. Such

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

receive no special

[[Page 5566]]

consideration under NEPA. However, under the terms of the Conservation

Agreement, both plant taxa receive special consideration that offers

additional protective benefits that are not normally applied to non-

listed species. For example, as specified in section IV of the MOU, for

actions on lands managed by the signatory agencies that are beyond the

normal operations as defined under section I of the MOU, agencies must

consult with CDFG and the Service. This provides the opportunity for

CDFG and the Service to recommend modifications or alternative actions

to avoid or minimize potential impacts to the species for actions

beyond normal operations. It also provides an early warning for any

inadequacies in the MOU which need to be addressed in future

conservation agreements.

The Service has considered the adequacy of NEPA and CEQA in regards

to protecting these species. While inadequacies will continue to exist,

the Service has determined that the implementation of the Conservation

Agreement significantly reduces the risk of extinction for both plant

species. While the Conservation Agreement does not apply to all

populations, those populations that are not covered represent less than

30 percent of either species and many of these populations are on

private inholdings within the National Forest where major projects are

not likely to occur.

Section 1603 of the California Fish and Game Code authorizes the

CDFG to regulate streambed alteration. The CDFG 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. The

CDFG does not consider the creation of wetlands for duck habitat to be

regulated under section 1603. Thus a streambed alteration permit 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, and the dike has been in place since 1967,

justification for their use has been grand fathered into law.

Similar activities are regulated by the Army Corps of Engineers

under section 404 of the Clean Water Act. Under section 404 there are

no specific provisions that adequately address species that are not

listed under the Act. While neither Downingia concolor var. brevior or

Limnanthes gracilis ssp. parishii are listed under the Act, the

protections under the Conservation Agreement adequately offset these

inadequacies. Section III.B.2.c.(8) of the MOU requires signatories to

comply with the full extent of both the Clean Water Act and the Act.

Inundation status is being monitored and signatory agencies must

consult with CDFG and the Service on actions that are beyond normal

operations which could alter drainages. Signatory agencies must also

coordinate with the Service and CDFG on the use of herbicide

application in sensitive wetlands, which is not regulated under section

404. Helix Water District and Lake Cuyamaca Recreation and Park

District have also agreed to avoid all activities within sensitive

areas that could alter hydrology.

Additional alterations requiring a 1603 permit or a 404 permit

could occur on many drainages that support Limnanthes gracilis ssp.

parishii and Downingia concolor var. brevior. Most of these are under

management of the signatories of the Conservation Agreement. However

the Service has determined that any impacts from such additional

alterations would occur to only a small proportion of the populations

of the species and therefore would not significantly put at risk the

survival of either species.

No federally listed species inhabit vernally wet meadows in the

Peninsular Ranges of southern California. Therefore these two species

receive no Federal regulatory protection from sympatry with listed

species. Limnanthes gracilis ssp. parishii is recognized as a

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

policies to protect sensitive plant taxa under its jurisdiction. The

policies include attempting to establish such 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 meadow habitats (Winter 1991). Alone, these

policies have not been entirely effective but, combined with the

benefits afforded by the Conservation Agreement, the Service considers

the policies adequate for species protection on Forest Service lands.

Actions taken by the Forest Service include placing interpretive signs

and fences at the Al Shrine Camp, Prado Campgrounds, and Morris Ranch

Meadow to reduce trampling impacts. In addition, an alternative

location for a proposed campground at Filaree Flat is being considered

to avoid impacts to Limnanthes gracilis ssp. parishii. A late season

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

1991; D. Volgrano, Forest Service, pers. comm., 1993). The Service

acknowledges that 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. However, these impacts are restricted to a small number of

plants and, when considered with protections for other populations,

will not place the plant at risk of extinction.

State Parks has eliminated grazing from meadows containing

Limnanthes gracilis ssp. parishii at Rancho Cuyamaca State Park. Other

impacts to the species and their habitat continue to occur in this

area, including trampling by horses, unauthorized trails, vehicle

parking, ORV use, diversion of water flow, erosion, channelization, and

water impoundment. Such impacts have been addressed in the Conservation

Agreement which is currently being implemented. The Service concludes

that, as a result of the implementation of this agreement, the risks to

both plant species have diminished to the point that these impacts no

longer contribute significantly to the decline of these species. For

example, under section III.B.2.c.(4) of the MOU, State Parks must

cooperate with CDFG and the Service in minimizing siltation and erosion

on their land to the extent practicable. Under section III.B.2.c.(10)

of the MOU, State Parks must review activities at Los Caballos Horse

Camp to determine how impacts to these plants can be reduced or

eliminated.

The Santa Rosa Plateau Preserve is managed by The Nature

Conservancy for long-term protection of sensitive species. A single,

small population of Limnanthes gracilis ssp. parishii is located within

the preserve.

While the existing regulatory mechanisms alone may not be entirely

adequate for protection of these species, the Service has determined

that the combination of these regulations and the actions being

implemented in the Conservation Agreement signed in 1996 is adequate to

eliminate the risk of extinction for these species.

E. Other natural or manmade factors affecting its continued

existence. The genetic variability of populations of Downingia concolor

var. brevior may be depressed by virtue of its 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 genetic complications in small

population size can be increased by environmental conditions such as

drought and flooding (Gilpin and Soule'' 1986). In the case of

Downingia

[[Page 5567]]

concolor var. brevior, the species is restricted to a single valley.

However, there is no evidence that genetic problems exist in the

species.

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

in the proposed rule (59 FR 39882-39884), 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. The Conservation Agreement

reenforces these measures and the Service believes that the threat from

trampling by hikers and horses has been significantly reduced.

Trampling is specifically addressed under section III.B. of the MOU, as

described under Sensitive Habitat Areas (Appendix A), which excludes

activities that might result in trampling from specified areas; section

III.B.2.b. of the MOU obligates Helix Water District through monitoring

and fence repair to prevent human trespassing and grazing on its lands;

and section III.B.2.c. of the MOU, which excludes cattle from sensitive

habitat in the growing season, establishes cattle exclosures, fencing

in the vicinity of camp sites, and requires monitoring of sensitive

areas.

Introduced species of grasses and forbs have invaded many of

Californian 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 and thereby reduce the amount of suitable

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

invasion of exotic species including Polygonum sp. (knotweed), Lolium

perenne (ryegrass), and Poa pratensis (Kentucky bluegrass), and

Potentilla norvegica (rough cinquefoil) has altered the composition of

habitats supporting the two plant taxa (Sproul 1979; E. Bauder, in

litt., October 1994, L. Henrickson, in litt., October 1994). Although

actions required by the Conservation Agreement that reduce impacts from

grazing, trampling, and minimizes alteration will not eliminate all

threats from aggressive plant species competition, it will make

conditions less favorable to these aggressive species.

Grazing by livestock typically changes the composition of native

plant communities by reducing or eliminating species that cannot

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

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

from non-sterile hay and animal feces increases the likelihood of

invasion of exotic species and prevents re-establishment of native

plants. Exotic species may flourish with grazing 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).

In response to these threats, however, the Conservation Agreement

(see ``Development of a Conservation Agreement'') mandates that grazing

be strictly excluded from Helix Water District and State Parks land. In

addition, grazing is managed and monitored on Forest Service lands to

minimize impacts to the two plant taxa. The Service believes that these

conditions of the Conservation Agreement have significantly reduced the

threats from grazing and will permit the development of management

techniques deemed necessary for the conservation of the species.

Finding and Withdrawal

Downingia concolor var. brevior and Limnanthes gracilis ssp.

parishii are restricted to 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. They occur in grassy meadows or drainages that are

vernally wet (wet during the rainy season) with saturated soil

conditions and shallow pools for several weeks at a time. Downingia

concolor var. brevior is restricted to the Cuyamaca Valley in the

Cuyamaca Mountains of central San Diego County, California. This

locality also supports the largest concentration of Limnanthes gracilis

ssp. parishii, which is more widely distributed.

The proposed rule identified alteration of wetland hydrology,

cattle grazing, recreational activities, recreational development,

inadequate regulatory mechanisms, and off-road vehicle activities as

the primary threats to these two plant taxa. A Conservation Agreement

initiated by Helix Water District in 1994 and finalized in August 1996,

which includes the Helix Water District, Lake Cuyamaca Recreation and

Park District, State Parks, the Forest Service, CDFG, and the Service

as signatories, addresses these primary threats and significantly

reduces the likelihood of extinction or endangerment for both species

such that the species are not endangered or threatened, as those terms

are defined in the Act.

After a thorough review and consideration of all information

available, including the development and implementation of the

Conservation Agreement, the Service has determined that listing of

Downingia concolor var. brevior as endangered, and Limnanthes gracilis

ssp. parishii as threatened is no longer warranted. The Service has

carefully assessed the best scientific and commercial information

available in the development of this withdrawal notice.

References Cited

A list of all references cited herein is available upon request

from the U.S. Fish and Wildlife Service Carlsbad Field Office (see

ADDRESSES section).

Author

The primary author of this withdrawal notice is Fred Roberts,

Carlsbad Field Office (see ADDRESSES section).

Authority

The authority for this action is section 4(b)(6)(B)(ii) of the

Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

Dated: January 30, 1997.

John G. Rogers,

Acting Director, U.S. Fish and Wildlife Service.

[FR Doc. 97-2876 Filed 2-3-97; 8:45 am]

BILLING CODE 4310-55-P