Endangered and Threatened Wildlife and Plants; Proposed Endangered Status for the Plant Plagiobothrys Hirtus (Rough Popcornflower)

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE44

Endangered and Threatened Wildlife and Plants; Proposed

Endangered Status for the Plant Plagiobothrys Hirtus (Rough

Popcornflower)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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

endangered

[[Page 61954]]

species status pursuant to the Endangered Species Act of 1973, as

amended (Act) for the plant Plagiobothrys hirtus (rough popcornflower).

This species is restricted to wet swales and meadows in Douglas County,

Oregon, where only 10 occurrences are known. Most populations are small

with few individuals. The total estimated number of plants is 3,000

within a combined area of about 4 hectares (ha) (10 acres (ac)).

Threats to this species include destruction and/or alteration of

habitat by development and hydrological changes (e.g., wetland fills,

draining, construction); spring and summer grazing by domestic cattle,

horses, and sheep; roadside maintenance; and competition from native

and alien plant species. This proposal, if made final, would implement

the Federal protection and recovery programs of the Act for this plant.

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

20, 1998. Public hearing requests must be received by January 5, 1998.

ADDRESSES: Comments and materials concerning this proposal should be

sent to the State Supervisor, U.S. Fish and Wildlife Service, Oregon

State Office, 2600 S.E. 98th Ave., Suite 100, Portland, Oregon 97266.

Comments and materials received will be available for public inspection

by appointment during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Andrew Robinson, Botanist, at the

above address or by telephone (503/231-6179).

SUPPLEMENTARY INFORMATION:

Background

Plagiobothrys hirtus was first collected by Thomas Howell in 1887

and described the following year as Allocarya hirta (Greene 1888).

Subsequent taxonomic treatments included A. scouleri var. hirta, P.

scouleri var. hirtus, A. calycosa, and P. hirtus (Gamon and Kagan

1985). Johnston recognized two varieties of the species, P. hirtus var.

hirtus and P. hirtus var. collaricarpus (Gamon and Kagan 1985). Later,

Chambers (1989) considered the material included in the variety

collaricarpus to be a variety of P. figuratus, which elevated the

material assigned to P. hirtus var. hirtus to a full species.

A member of the borage family (Boraginaceae), Plagiobothrys hirtus

is an annual herb on drier sites or perennial herb on wetter sites

(Amsberry and Meinke 1997). It reaches 30-70 centimeters (cm) (1-2 feet

(ft)) in height and has a fairly stout stem with widely spreading,

coarse, firm hairs on the upper part. The leaves of the main stem are

opposite (paired) and the racemes are paired and without bracts. The

individual flowers are 1-2 millimeters (0.4-0.6 inches (in)) wide, and

white in color (Gamon and Kagan 1985). It grows in scattered groups and

reproduces largely by insect-aided cross-pollination and partially by

self-pollination. The species is distinguished from other Plagiobothrys

species by coarse, sparse hairs on the stem and branches (Gamon and

Kagan 1985).

Plagiobothrys hirtus grows in open, seasonal wetlands in poorly-

drained clay or silty clay loam soils (Gamon and Kagan 1985). The taxon

is considered dependent on seasonal flooding and/or fire to maintain

open habitat and to limit competition with invasive native and alien

plant species such as Himalayan blackberry (Rubus discolor), Oregon ash

(Fraxinus latifolia), teasel (Dipsacus fullonum), and pennyroyal

(Mentha pulegium) (Gamon and Kagan 1985, Almasi and Borgias 1996).

Plagiobothrys hirtus occurs in open microsites within the one-sided

sedge (Carex unilateralis)--meadow barley (Hordeum brachyantherum)

community type within interior valley grasslands. Other frequently

associated species include tufted hairgrass (Deschampsia cespitosa),

American slough grass (Beckmannia syzigachne), great camas (Camassia

leichtlinii var. leichtlinii), water foxtail (Alopecurus geniculatus),

baltic rush (Juncus balticus), wild mint (Mentha arvensis), Willamette

downingia (Downingia yina), and bentgrass (Agrostis alba) (Gamon and

Kagan 1985).

Plagiobothrys hirtus is endemic to the interior valley of the

Umpqua River in southwestern Oregon. The species was collected only

four times between 1887 and 1961, all at sites within Douglas County

(Gamon and Kagan 1985). The taxon was considered possibly extinct

(Meinke 1982) until it was rediscovered in 1983 as a result of

intensive field surveys (Jimmy Kagan, Oregon Natural Heritage Program

(ONHP), pers. comm. 1997). The location of the first specimen,

collected by Howell on June 25, 1887, was given only as the Umpqua

Valley (Greene 1888). The sites of collections from 1932 and 1939, were

from 16 kilometers (km) (10 miles (mi)) east of Sutherlin and 3 km (2

mi) north of Yoncalla, respectively (Siddall and Chambers 1978) . Both

sites were surveyed in 1983, but no plants were found (Gamon and Kagan

1985). At the time, the sites were heavily grazed by sheep, which lead

the botanists to speculate that grazing was the probable cause of

extirpation at these sites (Gamon and Kagan 1985). In 1961, a

collection was made adjacent to Interstate 5 south of Yoncalla, a site

which remains extant today (J. Kagan, pers. comm. 1997).

Despite the few pre-1961 collections, Plagiobothrys hirtus was

probably widespread historically on the floodplains of the interior

valleys of the Umpqua River. Because P. hirtus occurs in low-lying

areas, seeds were likely dispersed by flood waters, resulting in a

patchy clumped distribution on the floodplains (Gamon and Kagan 1985).

Natural processes such as flooding and fire maintained open, wetland

habitat (Gamon and Kagan 1985). Draining of wetlands for urban and

agricultural uses and road and reservoir construction, however, has

altered the original hydrology of the valley to such an extent that the

total area of suitable habitat for P. hirtus has been significantly

reduced. In addition, fire suppression has allowed the invasion of

woody and herbaceous species into formerly open wetland habitats (Gamon

and Kagan 1985).

Plagiobothrys hirtus is now limited to 10 known occurrences in the

vicinity of Sutherlin and Yoncalla, Oregon (ONHP 1996). All extant

populations of this species are small (i.e., fewer than 500

individuals) and occur in disjunct habitat. The 10 occurrences are

estimated to have a total of about 3,000 individuals and a combined

area of less than 4 ha (10 ac) (Amsberry and Meinke 1997).

All extant populations are at risk of extirpation due to a variety

of threats (Almasi and Borgias 1996; J. Kagan, pers. comm. 1997; R.

Meinke, Oregon State University, pers. comm. 1997). In addition to the

ongoing threat of direct loss of habitat from conversion to urban and

agricultural uses, hydrological alterations, and fire suppression,

other threats to the species include spring and summer livestock

grazing, and roadside mowing, spraying and landscaping (Gamon and Kagan

1985, J. Kagan, pers. comm. 1995). Six of the 10 extant occurrences are

adjacent to highways. The other four occurrences are in urban or

agricultural areas.

Nine of the 10 known occurrences are on private land. The other

population is on public land owned by the Oregon Department of

Transportation (ODOT). One of the private parcels is owned and managed

for the species by The Nature Conservancy (TNC). The other eight

occurrences on private lands have no protective management for the

species and are at risk of extirpation from development, incompatible

grazing practices, and recreational activities (J.

[[Page 61955]]

Kagan, pers. comm, 1997; R. Meinke, pers. comm., 1997)

Previous Federal Action

Federal action on Plagiobothrys hirtus began when the Secretary of

the Smithsonian Institute prepared a report on plants considered to be

endangered, threatened, or extinct, pursuant to section 12 of the Act.

That report, designated as House Document No. 94-51, was presented to

Congress on January 9, 1975. On July 1, 1975, the Service published a

notice in the Federal Register (40 FR 27823) accepting the report as a

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

of the Act. The notice further indicated the Service's intention to

review the status of the plant species named therein. As a result of

this review, the Service published a proposed rule in the Federal

Register on June 16, 1976, (41 FR 24523), to determine approximately

1,700 vascular plant species to be endangered pursuant to section 4 of

the Act. This list, which included P. hirtus, was assembled on the

basis of comments and data received by the Smithsonian Institute and

the Service in response to House Document No. 94-51 and the July 1,

1975 Federal Register publication. In 1978, amendments to the Act

required that all proposals over 2 years old be withdrawn. A 1-year

grace period was given to proposals already over 2 years old. On

December 10, 1979, the Service published a notice in the Federal

Register (44 FR 70796) of the withdrawal of that portion of the June

16, 1976, proposal that had not been made final, along with four other

proposals that had expired.

The Service published an updated Notice of Review for plants on

December 15, 1980 (50 FR 82480), including Plagiobothrys hirtus as a

category 1 candidate species. Category 1 species were those for which

the Service had on file substantial information on biological

vulnerability and threats to support preparation of listing proposals.

This status was changed to category 2 in the November 28, 1983,

supplement to the notice (48 FR 53657), and remained as such in the

September 27, 1985, Notice of Review (50 FR 39527). Category 2 species

were those for which conclusive data on biological vulnerability and

threats were not currently available to support proposed rules. In the

February 21, 1990, Notice of Review (55 FR 6185), this status was

changed back to category 1. Upon publication of the February 28, 1996,

Notice of Review in the Federal Register (61 FR 7596), the Service

ceased using category designations and included P. hirtus as a

candidate species. Candidate species are those for which the Service

has on file sufficient information on biological vulnerability and

threats to support proposals to list the species as threatened or

endangered.

Section 4(b)(3)(B) of the Act 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 P. hirtus because of the

acceptance of the 1975 Smithsonian Report 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 actions, in

accordance with section 4(b)(3)(B)(iii) of the Act; notice of this

finding was published 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 1995. Publication of this proposal constitutes the final 1-year

finding for the petitioned action.

Plagiobothrys hirtus has a listing priority number of 2. Processing

of this rule is a Tier 3 activity under the current listing priority

guidance.

Summary of Factors Affecting the Species

Section 4 of the Endangered Species Act (16 U.S.C. 1533) 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) of the Act. These factors and their application to

Plagiobothrys hirtus Greene (rough popcornflower) are as follows:

A. The present or threatened destruction, modification, or

curtailment of habitat or range. Plagiobothrys hirtus is threatened by

destruction and modification of its wetland habitat (R. Meinke, pers.

comm. 1997). Although the species is believed to have been more

abundant in the past throughout the interior valleys of the Umpqua

River, it is now limited to 10 small, isolated occurrences. Direct loss

of habitat from hydrological alterations, wetland filling, or

conversion to other uses pose a threat to all 10 extant occurrences.

Two sites occur on private land within the urban boundary of the

town of Sutherlin. When first discovered in 1983, these sites were the

largest known occurrences (ONHP 1996). One site, with approximately 200

individuals in 1983, has since been destroyed and only 1 plant was

found in 1996; development of this site is imminent (J. Kagan, pers.

comm. 1997). The other site, estimated to have 300-500 plants when

discovered in 1983, has been declining since that time. In 1994, a

portion of the wetland at the site was filled, and the remaining area

was observed to be significantly impacted by mountain bike recreation;

only about 50-100 plants were present (J. Kagan, pers. comm. 1995).

Urban development of this site is considered likely (J. Kagan, pers.

comm. 1997, R. Meinke, pers. comm. 1997).

Three sites are known on private land about 1.6 km (1 mi) east of

Sutherlin. One of these, when discovered in 1983, had about 30-35

plants within an area of about 200 square meters (m2) (2,200

square feet (ft2)). The site lies within the Sutherlin urban

growth boundary and is slated for development (ONHP 1996). The other

two sites were discovered in 1986. One of these had 200 plants in 1986,

but by 1988 had only 30-40 plants scattered over an area of 25

m2 ( 275 ft2). Habitat conditions on this site

are described as marginal (ONHP 1996). The other site also had about

200 plants when first observed in 1986, but by 1988 had decreased to

about 100 plants (ONHP 1996). During the most recent site survey in

1993, only 50-100 plants were seen (J. Kagan, pers. comm. 1997).

Four additional sites are known on private land several kilometers

south of the town of Sutherlin. One of these, when discovered in 1983,

consisted of about 150 plants growing in an area of about 50

m2 (550 ft2). In 1996, only about 50 plants

remained. Two other sites were both discovered in 1984. One consisted

of 50-60 plants in a 30 m2 (330 ft2) area, and

the other had 200-300 plants (ONHP 1996). Both occurrences had

generally decreasing numbers of individuals through the late 1980's.

TNC acquired a portion of the larger of the two occurrences and began

formal monitoring in 1995. Individuals were too numerous for a complete

census in 1995 with the total population on the site estimated at over

16,000 individuals. In 1996, however, the population plummeted to only

394 plants, a drop attributed to an extensive period of standing water

on the preserve that year due to a wet spring (Almasi and Borgias

1996). See Factor E discussion for further details on this population

decline. The fourth site, when discovered in 1990, had fewer than 50

plants (J. Kagan, pers. comm. 1995).

[[Page 61956]]

The last site is on public land and private land about 22 km (14

mi) north of Sutherlin near the town of Yoncalla. This site is the

locality of the 1961 collection that was relocated in 1983. About 200

plants were present in 1988, and the population size has continued to

increase under management by ODOT. Although the population on public

land appears vigorous, a portion of the population on the adjacent

private land appears to have vanished (J. Kagan, pers. comm. 1997).

Alterations in site hydrology pose the primary threat to the plants (R.

Meinke, Oregon State University, pers. comm. 1997).

B. Overutilization for commercial, recreational, scientific, or

educational purposes. No evidence of overutilization of this taxon for

any purpose exists at this time. However, the plants are easily

accessible by road, and the small population sizes make them vulnerable

to overcollection by botanical enthusiasts.

C. Disease or predation. Grazing has likely been a contributing

factor in declining Plagiobothrys hirtus numbers throughout its

historic range (Gamon and Kagan 1985). Livestock graze in pastures

containing four of the occurrences (ONHP 1996). The timing and

intensity of grazing, however, determine the effects of grazing on the

plant. Grazing during spring and early summer likely threatens P.

hirtus. When herbivores eat the flower or seed head of the plant, the

reproductive output for the year for that individual is destroyed. This

activity may be more significant at sites where the species functions

as an annual (Gamon and Kagan 1985). However, where fires and flooding

no longer occur, grazing may benefit the species. Fall grazing, in

particular, may be of benefit because the plant is dormant during at

this time and grazing can keep the habitat open by reducing the growth

of competing species (Gamon and Kagan 1985). By reducing vegetative

growth, fall grazing or mowing (see factor E discussion) may also lower

the suitability of the habitat for voles and, thereby, reduce herbivory

on the plant.

D. Inadequacy of existing regulatory mechanisms. Under the Oregon

Endangered Species Act (ORS 564.100-564.135) and pursuant regulations

(OAR 603, Division 73), the Oregon Department of Agriculture has listed

Plagiobothrys hirtus as endangered (OAR 603-73-070). This statute

prohibits the ``take'' of State-listed plants on State, county, and

city owned or leased lands. Most occurrences of P. hirtus occur on

private land and are not subject to any current regulations. One site

is adjacent to State Route 99 on lands managed by ODOT and has been

designated by the agency as a Special Management Area. Mowing and

spraying practices have been modified to protect the species at this

site where the plant appears to be stable or increasing (N. Testa,

Oregon Department of Transportation, pers. comm. 1997).

E. Other natural or manmade factors affecting its continued

existence. Nine of 10 extant sites of Plagiobothrys hirtus occur

adjacent to major highways (Interstate 5 and/or State Route 99) or

railroad beds. Herbicide spraying and highway landscaping has affected

and reduced at least one P. hirtus population (J. Kagan, pers. comm.

1995). Mowing is also part of the routine maintenance of roadways. As

with livestock grazing, mowing or pesticide spraying during the spring

may reduce seed set and thereby negatively affect populations of the

plant. Late season mowing has benefited the P. hirtus population at the

ODOT site, probably by reducing competition from other plants and

herbivory by voles (R. Meinke, pers. comm. 1997). With the exception of

the P. hirtus populations in ODOT's Special Management Area and The

Nature Conservancy's Popcorn Swale, none of the roadside occurrences

are protected from herbicide spraying, landscaping or early season

mowing. In addition, roadside occurrences are at risk of toxic chemical

spills and runoff containing oil and grease (N. Testa, pers. comm.

1997). Vehicle accidents also increase the risk of fuel contamination

or fire; such an accident recently occurred adjacent to the ODOT

population, but the plant was not affected (N. Testa, pers. comm.

1997).

Encroachment by native and alien plant species increases when

natural processes like fire or flooding are altered (J. Kagan, pers.

comm. 1997; R. Meinke, pers. comm. 1997). After a 1985 fire at one of

the sites in Sutherlin, the plants responded the following year with

vigorous growth (J. Kagan, pers. comm. 1997). As with late season

grazing or mowing, late season fire is likely to be of benefit, while

fire which occurs prior to seed set may have negative consequences to

Plagiobothrys hirtus. The encroachment of weedy, and especially woody,

species may also alter site hydrology by capturing more of the

available water, an alternative explanation for the dramatic collapse

of the population at the TNC preserve between 1995 and 1996 (see Factor

A; R. Meinke, pers. comm. 1997).

Because of the small, isolated nature of the occurrences and the

few individuals present in most of them, Plagiobothrys hirtus is also

more susceptible to random events, such as fires during the growing

season, insect or disease outbreaks, or toxic chemical spills. The

rapid, and as yet unexplained, collapse of the population at the TNC

preserve argues for the protection of all extant sites to shield the

species from random events that could cause its extinction. Small,

isolated populations may also have an adverse effect on pollinator

activity, seed dispersal, and gene flow. The existence of both annual

and perennial populations in P. hirtus suggests that some local genetic

differentiation may already exist among populations of the species.

Genetic drift within small, isolated populations can lead to a loss of

genetic variability and a reduced likelihood of long-term viability

(Soule in Lesica and Allendorf 1992).

The Service has carefully assessed the best scientific and

commercial information available concerning the past, present, and

future threats faced by this species in determining to propose this

rule. Based on this evaluation, the preferred action is to list

Plagiobothrys hirtus as endangered. Filling of its wetland habitat for

development, livestock grazing during its growing season, invasion by

competitive plant species as a result of hydrological alteration and

fire suppression, and roadside spraying and mowing continue to reduce

plant numbers and habitat. The small, isolated occurrences with few

individuals make the species more vulnerable. In addition, continued

decreases in the number of occurrences and individuals could result in

decreased genetic variability. The varied and cumulative threats to P.

hirtus indicate the species is in danger of extinction throughout its

range. For these reasons, the Service believes that listing P. hirtus

as endangered is the most appropriate action. Failure to list this

species would likely result in extinction of the species. Threatened

status is not appropriate because all of the extant occurrences of P.

hirtus are small, and 8 of 10 occurrences have no protection from

mowing, herbicide application, imminent urbanization, and grazing

threats. In addition, one of the protected occurrences recently

suffered a precipitous, and as yet unexplained, reduction in numbers.

Not listing the taxon or listing it as threatened would not provide

adequate protection and would not be consistent with the Act.

Critical Habitat

Critical habitat is defined in section 3 of the Act as: (i) The

specific areas within the geographical area occupied by a species, at

the time it is listed in accordance with the Act, on which are found

those physical or biological

[[Page 61957]]

features (I) essential to the conservation of the species and (II) that

may require special management considerations or protection; and (ii)

specific areas outside the geographical area occupied by a species at

the time it is listed, upon a determination that such areas are

essential for the conservation of the species. ``Conservation'' means

the use of all methods and procedures needed to bring the species to

the point at which listing under the Act is no longer necessary.

Section 4(a)(3) of the Act, as amended, and implementing

regulations (50 CFR 424.12) require that, to the maximum extent prudent

and determinable, the Secretary designate critical habitat at the time

the species is determined to be endangered or threatened. The Service

finds that designation of critical habitat is not prudent for P.

hirtus. Service regulations (50 CFR 424.12(a)(1)) state that

designation of critical habitat is not prudent when one or both of the

following situations exist--(1) The species is threatened by taking or

other human activity, and identification of critical habitat can be

expected to increase the degree of threat to the species, or (2) such

designation of critical habitat would not be beneficial to the species.

Although overutilization is not considered to be a threat to

Plagiobothrys hirtus at this time, listing of this species as

endangered would publicize its rarity and, thus, can make it more

attractive to researchers or collectors of rare plants. Most

occurrences are small enough that even limited collecting pressure

could have adverse impacts. The Service is also aware of a report that,

after the species was listed by the State of Oregon, a landowner

contacted by State botanists to discuss protective measures for a

population on his property allegedly responded by blading the site and

destroying the population (J. Kagan, pers. comm. 1997). The publication

of precise maps and descriptions of critical habitat in the Federal

Register would make this plant more vulnerable to incidents of

collection and/or vandalism and, therefore, contribute to the decline

of this species and increase enforcement problems.

Further, designation of critical habitat for Plagiobothrys hirtus

is not prudent for lack of benefit. This plant does not occur on

Federal land, and it is not believed to have historically occurred on

Federal land. Although a potential nexus for Federal action exists for

all occurrences within section 404 of the Clean Water Act and for some

occurrences in which the Federal Highway Administration may become

involved (see ``Available Conservation Measures'' section below), any

such Federal involvement would also require consultation under section

7 of the Act. Any action that would adversely modify critical habitat

would also jeopardize the continued existence of the species. Most

occurrences of this plants are of such small size that a wetland fill

less than the 0.13 ha (0.34 ac) regulatory threshold (see ``Available

Conservation Measures'' section below) would eliminate it. The

designation of critical habitat would not provide additional benefits

for this species beyond the protection afforded by listing.

The Service finds, therefore, that designation of critical habitat

for this species is not prudent because such designation would likely

increase the degree of threat to the species from vandalism and would

provide no additional benefit to the species' protection. Protection of

the species' habitat will be addressed primarily through the recovery

process.

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 results in public awareness and

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

organizations, and individuals. The Act provides for possible land

acquisition and cooperation with the states and requires that recovery

actions be carried out for all listed species. The protection required

by Federal agencies and the prohibitions against certain activities

involving listed plants are discussed, in part, below.

Section 7(a) of the Act requires Federal agencies to evaluate their

actions with respect to any species that is proposed or listed as

endangered or threatened and with respect to its critical habitat, if

any is being designated. Regulations implementing this interagency

cooperation provision of the Act are codified at 50 CFR part 402.

Section 7(a)(4) of the Act requires Federal agencies to confer with the

Service on any action that is likely to jeopardize the continued

existence of a species proposed for listing or result in destruction or

adverse modification of proposed critical habitat. If a species is

listed subsequently, section 7(a)(2) requires Federal agencies to

ensure that activities they authorize, fund, or carry out are not

likely to jeopardize the continued existence of the species or destroy

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

affect a listed species or its critical habitat, the responsible

Federal agency must enter into consultation with the Service.

Because Plagiobothrys hirtus occurs in wetlands, regulatory

mechanisms under the Clean Water Act apply to this species. Under

section 404 of the Clean Water Act, the U.S. Army Corps of Engineers

(Corps) regulates the discharge of fill material into the waters of the

United States, including wetlands. To be in compliance with the Clean

Water Act, potential applicants are required to notify the Corps prior

to undertaking any activity that would result in the fill of wetlands

under the Corps' jurisdiction (e.g., grading, discharge of soil or

other fill material, etc.). Nationwide Permit Number 26 (33 CFR 330.5

and 33 CFR 330, App. A) has been issued to regulate the fill of

wetlands that are not larger than 1.2 ha (3 ac), nor cause the loss of

waters of the United States for a distance of more than 150 linear m

(500 linear ft) of streambed (61 FR 65874). Where fill would occur in a

wetland less than 0.13 ha (0.34 ac) in size, no requirement exists to

notify the Corps prior to fill activities. Where fill would occur in a

wetland of 0.13 ha (0.34 ac) to 1.2 ha (3 ac) in size, the Corps

circulates for agency comment a predischarge notification to the

Service and other interested parties prior to determining whether or

not the proposed fill activity qualifies under Nationwide Permit 26.

Individual permits are required for the discharge of fill into wetlands

that are greater than 1.2 ha (3 ac) in size. The review process for the

issuance of individual permits is more extensive, and conditions may be

included that require the avoidance or mitigation of environmental

impacts. The Corps has discretionary authority and can require an

applicant to seek an individual permit if the Corps believes that the

resources are sufficiently important, regardless of the wetland's size.

In practice, the Corps rarely requires an individual permit when a

project would qualify for a Nationwide Permit, unless a federally

threatened, endangered, or proposed species occurs on the site. If a

federally threatened or endangered species or a proposed species may be

affected by a proposed project, the Corps must ensure that it does not

authorize, fund or carry out any action that is likely to jeopardize

the species' continued existence, pursuant to section 7(a)(2) of the

Endangered Species Act. Therefore, if an applicant's project site has

one or more listed species on it, the Corps would be required to enter

into

[[Page 61958]]

consultation with the Service. Should P. hirtus become listed, the

species may be afforded increased protection through consultation on

Corps permits.

In addition, the Federal Highway Administration would become

involved with Plagiobothrys hirtus when highway maintenance is funded,

even in part, by the Federal government. Any State highway activity

being implemented by ODOT that is partly funded by the Federal

government would be subject to review under the Act. In addition,

Department of Housing and Urban Development projects and Natural

Resources Conservation Service projects in areas that presently support

P. hirtus would also be subject to review under section 7 of the Act.

Listing of this plant would provide for development of a recovery

plan for the plant. Such a plan would bring together State, Federal and

private efforts for conservation of the plant. The plan would establish

a framework for agencies to coordinate activities and cooperate with

each other in conservation efforts. The plan would set recovery

priorities, note responsible parties, and estimate costs of various

tasks necessary to accomplish them. It would also describe site-

specific management actions necessary to achieve conservation and

survival of the plant. Additionally, pursuant to section 6 of the Act,

the Service would be able to grant funds to Oregon for management

actions promoting the protection and recovery of this species.

Two sites currently receive some protective management. The site

owned and managed by ODOT has been designated as a Special Management

Area. Mowing is restricted to late in the fall when Plagiobothrys

hirtus is dormant (N. Testa, pers. comm. 1997). The other site in

protective ownership is owned and managed by TNC. This site, which

currently contains about 400 individual plants, is being actively

managed for the protection and development of P. hirtus habitat (Almasi

and Borgias 1996). Monitoring, life history studies, and

transplantation experiments using field-collected seed have been

initiated at these two sites. The objectives of these efforts are to

increase population sizes, and establish protocols for seed collection,

greenhouse propagation, and transplantation techniques (Amsberry and

Meinke 1997).

The Act and its implementing regulations set forth a series of

general prohibitions and exceptions that apply to all endangered

plants. All prohibitions of section 9(a)(2) of the Act, implemented by

50 CFR 17.61, apply. These prohibitions, in part, make it illegal for

any person subject to the jurisdiction of the United States to import

or export, transport in interstate or foreign commerce in the course of

a commercial activity, sell or offer for sale in interstate or foreign

commerce, or remove and reduce the species to possession from areas

under Federal jurisdiction. In addition, for plants listed as

endangered, the Act prohibits the malicious damage or destruction on

areas under Federal jurisdiction and the removal, cutting, digging up,

or damaging or destroying of such plants in knowing violation of any

State law or regulation, including State criminal trespass law. Certain

exceptions to the prohibitions apply to agents of the Service and State

conservation agencies.

It is the policy of the Service, published in the Federal Register

on July 1, 1994 (59 FR 34272), to identify to the maximum extent

practicable at the time a species is listed those activities that would

or would not constitute a violation of section 9 of the Act. The intent

of this policy is to increase public awareness of the effect of the

listing on proposed and ongoing activities within a species' range.

Activities that would constitute a violation of section 9 of the Act

include removing, damaging or destroying Plagiobothrys hirtus in

violation of State law. In addition, collection on Federal lands

without a permit and other actions considered to be malicious damage to

the species on Federal lands would be prohibited, although P. hirtus is

not currently known to occur on Federal lands. Activities that are not

likely to violate section 9 of the Act include routine landscape

maintenance, clearing of vegetation for firebreaks, and livestock

grazing on privately-owned land. Questions regarding whether specific

activities may constitute a violation of section 9 should be addressed

to the State Supervisor of the Service's Oregon State Office (see

ADDRESSES section).

The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of

permits to carry out otherwise prohibited activities involving

endangered plants under certain circumstances. Such permits are

available for scientific purposes and to enhance the propagation or

survival of the species. Requests for copies of the regulations

concerning listed plants and animals and general inquiries regarding

prohibitions and permits may be addressed to the U.S. Fish and Wildlife

Service, Ecological Services, Endangered Species Permits, 911 N.E. 11th

Avenue, Portland, Oregon, 97232-4181 (503/231-2063; FAX 503/231-6243).

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 are

particularly sought concerning:

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

concerning any threat (or lack thereof) to Plagiobothrys hirtus;

(2) The location of any additional occurrences of this species

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

to be critical habitat pursuant to section 4 of the Act;

(3) Additional information concerning the range, distribution,

and population size of this species; and

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

possible impacts on Plagiobothrys hirtus.

Any 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 Act provides for one or more public hearings on this proposal,

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

publication of the proposal in the Federal Register. Such requests must

be made in writing and addressed to the State Supervisor, Oregon State

Office (see ADDRESSES section).

National Environmental Policy Act

The Fish and Wildlife Service has determined that Environmental

Assessments and Environmental Impact Statements, 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 designation was published in

the Federal Register on October 25, 1983 (48 FR 49244).

Required Determinations

The Service has examined this regulation under the Paperwork

Reduction Act of 1995, and found it to contain no information

collection requirements.

[[Page 61959]]

References Cited

Almasi, K. and D. Borgias. 1996. Monitoring plan: Plagiobothrys

hirtus ssp. hirtus. Unpublished report by The Nature Conservancy,

Southwestern Oregon Office, Ashland, OR. 5 pp.

Amsberry, K. and R.J. Meinke. 1997. Restoring the Popcorn-flower.

U.S. Fish and Wildlife Service Endangered Species Bulletin.

22(2):12-13.

Chambers, K. 1989. The Taxonomic Relationships of Allocarya

corallicarpa (Boraginaceae). Madrono 36(4):280-281.

Gamon, J., and J. Kagan. 1985. Status report for Plagiobothrys

hirtus. Unpublished report submitted to U.S. Fish and Wildlife

Service. 58 pp.

Greene, E.L. 1888. New or noteworthy species. Pittonia 1:161.

Lesica, P. and F. Allendorf. 1992. Are small populations of plants

worth preserving? Conservation Biology 6(1):135-139.

Meinke, R.J. 1982. Threatened and Endangered Vascular Plants of

Oregon: An Illustrated Guide. Unpublished report to the U.S. Fish

and Wildlife Service. 352 pp.

Oregon Natural Heritage Program. 1996. Biological Conservation

Database: Plagiobothrys hirtus Element Occurrence Records.

Unpublished report of the Oregon Natural Heritage Program, Portland,

Oregon. 12 pp.

Siddall, J.L. and K.L. Chambers. 1978. Status report for

Plagiobothrys hirtus ssp. hirtus. Unpublished report submitted to

the U.S. Fish and Wildlife Service. 10 pp.

Authors: The primary authors of this proposed rule are Josh Millman

and Cat Brown, U.S. Fish and Wildlife Service, Oregon State Office (see

ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species. Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

Accordingly, the Service hereby proposes to amend part 17,

subchapter B of chapter I, title 50 of the Code of Federal Regulations,

as set forth below:

PART 17--[AMENDED]

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

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Amend Sec. 17.12(h) by adding the following, in alphabetical

order under FLOWERING PLANTS, to the List of Endangered and Threatened

Plants to read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

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

Species

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

Scientific name Common Name habitat rules

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

* * * * * * *

Flowering Plants

* * * * * * *

Plagiobothrys hirtus............. Rough popcornflower. U.S.A. (OR)........ Boraginaceae/borage E ........... NA NA

* * * * * * *

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

Dated: October 22, 1997.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 97-30473 Filed 11-19-97; 8:45 am]

BILLING CODE 4310-55-P