Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for Two Tidal Marsh PlantsCirsium hydrophilum var. hydrophilum (Suisun Thistle) and Cordylanthus mollis ssp. mollis (Soft Bird's-Beak) From the San Francisco Bay Area of California

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD14

Endangered and Threatened Wildlife and Plants; Determination of

Endangered Status for Two Tidal Marsh Plants--Cirsium hydrophilum var.

hydrophilum (Suisun Thistle) and Cordylanthus mollis ssp. mollis (Soft

Bird's-Beak) From the San Francisco Bay Area of California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

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

amended (Act), for two plants--Cirsium hydrophilum var. hydrophilum

(Suisun thistle) and Cordylanthus mollis ssp. mollis (soft bird's-

beak). These species are restricted to salt and brackish tidal marshes

within the San Francisco Bay area in northern California. Habitat

conversion, water pollution, changes in salinity, indirect effects of

urbanization, mosquito abatement activities (including off-road vehicle

use), competition with non-native vegetation, insect predation,

erosion, and other human-caused actions threaten these two species.

This rule implements the Federal protection and recovery provisions

afforded by the Act for these plants.

EFFECTIVE DATE: December 22, 1997.

ADDRESSES: The complete file for this rule is available for inspection,

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

Wildlife Service, Sacramento Fish and Wildlife Office, 3310 El Camino,

Suite 130, Sacramento, California 95821-6340.

FOR FURTHER INFORMATION CONTACT: Kirsten Tarp (telephone 916/979-2120)

and Matthew D. Vandenberg (telephone 916/979-2752), staff biologists at

the Sacramento Fish and Wildlife Office (see ADDRESSES section); FAX

916/979-2723.

SUPPLEMENTARY INFORMATION:

Background

Cirsium hydrophilum var. hydrophilum (Suisun thistle) and

Cordylanthus mollis ssp. mollis (soft bird's-beak) occur in salt and

brackish tidal marshes fringing San Pablo and Suisun Bays in the San

Francisco Bay area of northern California. Since 1850, this habitat has

been drastically reduced. Approximately 15 percent, or 12,142 hectares

(ha) (30,000 acres), of the historical tidal marshland habitat within

the San Francisco Bay area remains (Dedrick 1989).

With the exception of the San Francisco Bay area, the mountainous

coast of California and the narrow continental shelf provide few areas

that are suitable for tidal marsh development (MacDonald 1990). Coastal

salt marshes are found along sheltered margins of shallow bays,

estuaries, or lagoons, in low lying areas that are subject to periodic

inundation by salt water. Brackish marshes occur at the interior

margins of coastal bays, estuaries, or lagoons where fresh water

sources (streams and rivers) enter salt marshes. Brackish marshes are

similar to salt marshes but differ in the degree of water and soil

salinity. Brackish marshes are less saline than salt marshes. Salinity

levels vary with time, tides, and the amount of freshwater inflow.

Vegetation communities in salt and brackish marshes often occur in

distinct zones, depending on the frequency and length of tidal

flooding. Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis

ssp. mollis are restricted to a narrow tidal band, typically in higher

elevational zones within larger tidal marshes that have fully developed

tidal channel networks. These plants usually do not occur in smaller

fringe tidal marshes that are generally less than 100 meters (m) (300

feet (ft)) in width, or in non-tidal areas.

Discussion of the Two Species

Asa Gray (1888) originally described Cirsium hydrophilum var.

hydrophilum as Cnicus breweri var. vaseyi. Subsequent authors treated

the taxon as Carduus hydrophilus (Greene 1892), Cirsium hydrophilum

(Jepson 1901), and Cirsium vaseyi var. hydrophilum (Jepson 1925). John

Thomas Howell (1959) concluded that Jepson's Cirsium hydrophilum and

Cirsium vaseyi of the Mt. Tamalpais area in Marin County, California

are varieties of a single species, Cirsium hydrophilum. According to

the rules for botanical nomenclature, when a new variety is described

in a species not previously divided into intraspecific taxa, an autonym

(automatically created name) is designated. In this case, the autonym

is Cirsium hydrophilum var. hydrophilum.

Cirsium hydrophilum var. hydrophilum is a perennial herb in the

aster family (Asteraceae). Slender, erect stems 1.0 to 1.5 m (3.0 to

4.5 ft) tall are well branched above. The spiny leaves are deeply

lobed. The lower leaves have ear-like basal lobes; the upper leaves are

[[Page 61917]]

reduced to narrow strips with strongly spine-toothed margins. Pale

lavender-rose flower heads, 2.0 to 2.5 centimeters (cm) (1 inch (in.))

long, occur singly or in loose groups. The bracts of the flower heads

have a distinct green, glutinous ridge on the back that distinguishes

Cirsium hydrophilum var. hydrophilum from other Cirsium species in the

area. Cirsium hydrophilum var. hydrophilum flowers between July and

September.

Cirsium hydrophilum var. hydrophilum is restricted to Suisun Marsh

in Solano County. In 1975, the plant was reported as possibly extinct

because it had not been collected for about 15 years. Extensive surveys

found the thistle at two locations within Suisun Marsh (Brenda Grewell,

California Department of Water Resources (CDWR), pers. comm. 1993),

however, unoccupied suitable habitat for Cirsium hydrophilum var.

hydrophilum exists outside these sites in the upper reaches of tidal

marshes in Solano County. Collectively, the occurrences of Cirsium

hydrophilum var. hydrophilum total a few thousand individuals (Brenda

Grewell, pers. comm. 1993) occupying a total area of less than 1 acre.

Cirsium hydrophilum var. hydrophilum grows in the upper reaches of

tidal marshes associated with Typha angustifolia (narrow-leaf cattail),

Scirpus americanus (Olney's bulrush), Juncus balticus (Baltic rush),

and Distichlis spicata (saltgrass). One population is found on State

land under the jurisdiction of the California Department of Fish and

Game (CDFG) and another population is on Solano County Farmland and

Open Space Foundation lands. No active management is occurring at

either location (Neil Havlik, Solano County Farmland and Open Space

Foundation, pers. comm. 1993; Ann Howald, CDFG, pers. comm. 1993).

Habitat conversion and fragmentation, indirect effects from urban

development, increased salinity, projects that alter the natural tidal

regime, mosquito abatement activities, and competition with non-native

plants, threaten this taxon. The highly restricted distribution of

Cirsium hydrophilum var. hydrophilum increases its susceptibility to

catastrophic events such as pest outbreaks, severe drought, oil spills,

or other natural or human caused disasters.

Charles Wright collected the type specimen of Cordylanthus mollis

ssp. mollis in November 1855, on Mare Island in San Francisco Bay. Asa

Gray (1868) published the original description, using the name

Cordylanthus mollis. Later botanists treated the taxon as Adenostegia

mollis (Greene 1891) and Chloropyron molle (Heller 1907). Tsan-Iang

Chuang and Larry Heckard (1973) treated Cordylanthus mollis and

Cordylanthus hispidus as subspecies of a single species (Cordylanthus

mollis) with Cordylanthus mollis ssp. mollis recognized as the autonym.

Cordylanthus mollis ssp. mollis is an annual herb of the snapdragon

family (Scrophulariaceae) that grows 25 to 40 cm (10 to 16 in.) tall.

It is sparingly branched from the middle and above. Cordylanthus mollis

ssp. mollis is a hemiparasite (i.e., partially parasitic) that extracts

water and nutrients by attaching enlarged root structures to the roots

of other plants (Chuang and Heckard 1971). The foliage is grayish-green

(often tinged a deep red) and hairy. The oblong to lance-shaped leaves

are 1.0 to 2.5 cm (0.4 to 1.0 in.) long, the lower leaves entire and

the upper with one to three pairs of leaf lobes. The inflorescence

consists of spikes 5 to 15 cm (2 to 6 in.) long. A floral bract with

two to three pairs of lobes occurs immediately below each inconspicuous

white or yellowish-white flower. The flowers have only two functional

stamens. The narrow ovoid seed capsule is 6 to 10 millimeters (mm) (0.2

to 0.4 in.) long and bears 20 to 30 dark brown seeds. Flowering occurs

between July and September. Cordylanthus mollis ssp. mollis is

distinguished from another Cordylanthus found nearby (C. maritimus ssp.

palustris) by its two functional stamens (C. maritimus ssp. palustris

has four) and by its bracts with two to three pairs of lateral lobes

(C. maritimus ssp. palustris has a pair of short teeth on the floral

bracts). Cordylanthus mollis ssp. mollis is closely related to

Cordylanthus mollis ssp. hispidus and can be differentiated most

consistently from Cordylanthus mollis ssp. hispidus on spike length and

seed size.

Cordylanthus mollis ssp. mollis is found predominantly in the upper

reaches of salt grass-pickleweed marshes at or near the limits of tidal

action (Stromberg 1986). It is associated with Salicornia virginica

(Virginia glasswort), Distichlis spicata, Jaumea carnosa (fleshy

jaumea), Frankenia salina (alkali heath), and Triglochin maritima

(arrow-grass) (Stromberg 1986). There have been 21 reported locations

of Cordylanthus mollis ssp. mollis. Two sites, Denverton and Berkeley,

were erroneous locations. Five sites (Mare Island, Martinez, Burdell

Station, Bentley Wharf, and Antioch Bridge) have been extirpated by

habitat loss or modification. Five other sites surveyed in 1993 no

longer had the plants, although some potential habitat still existed.

Nine sites are presumed to still exist (California Natural Diversity

Data Base (CNDDB) 1996; Jake Ruygt, California Native Plant Society

(CNPS), in litt. 1996). The type locality at Mare Island for

Cordylanthus mollis ssp. mollis was destroyed by development and is now

a dredge disposal site (CNDDB 1994). A second occurrence, last seen in

1981 near Martinez in Contra Costa and Solano Counties, was dredged,

filled, diked, and is now a marina (Stromberg 1986, CNDDB 1994).

The remaining nine occurrences are widely scattered throughout

coastal salt or brackish tidal marshes fringing San Pablo and Suisun

Bays, in Contra Costa, Napa, and Solano Counties (CNDDB 1994; Brenda

Grewell, in litt. 1993; Jake Ruygt, in. litt. 1996). Three sites, Pt.

Pinole, Rush Ranch, and Joice Island Bridge, have very limited habitat

and cover less than 0.4 ha (1 acre) each. The population at Fagan

Slough covers approximately 1.2 ha (3 acres). The two largest

populations are located at Hill Slough and at Concord Naval Weapons

Station, each covering approximately 4 ha (10 acres). The entire

distribution of Cordylanthus mollis ssp. mollis currently is restricted

to about 12 ha (31 acres) of occupied habitat (Jake Ruygt, 1994 and in

litt. 1996). The total number of individuals reported among populations

varies from 1 at the smallest site to 150,000 plants at the largest

site. Of the remaining nine sites, one (McAvoy) has only 23 plants.

Most sites have between 1,000 and 6,000 individuals (Jake Ruygt 1994;

CNDDB 1996). Individual populations fluctuate in size from year to

year, as is typical of annual plants. Cordylanthus mollis ssp. mollis

occurs primarily on private or non-Federal land; the second largest

occurrence is found on Department of Defense (U.S. Navy) land. Habitat

conversion and fragmentation, water pollution, increases in salinity of

tidal marshes due to upstream withdrawals of fresh water, projects that

alter the natural tidal regime, indirect effects of urbanization,

mosquito abatement activities (including off-road vehicle use),

erosion, competition with non-native vegetation, insect predation, and

other random events threaten the remaining occurrences of Cordylanthus

mollis ssp. mollis.

The CDWR has conducted surveys for Cordylanthus mollis ssp. mollis

and Cirsium hydrophilum var. hydrophilum, and these surveys have not

been limited to known historic populations. The CDWR has surveyed

potential habitat throughout Suisun Marsh, searched portions of the

potential habitat along the Contra Costa shoreline, has assisted with

searches downstream of Suisun

[[Page 61918]]

Bay in the Carquinez Strait and Napa marshes, and has surveyed diked

wetlands managed for waterfowl. Despite these surveys, the CDWR has

found no new populations since their original data submittal in 1993

(Randall Brown in. litt. 1996).

Previous Federal Action

Federal government actions on the two plants 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 in the United States. This report,

designated as House Document No. 94-51, was presented to Congress on

January 9, 1975, and listed Cirsium hydrophilum var. hydrophilum and

Cordylanthus mollis ssp. mollis as possibly extinct. The Service

published a notice on July 1, 1975 (40 FR 27823), of its acceptance of

the report of the Smithsonian Institution as a petition within the

context of section 4(c)(2) (petition provisions now are found in

section 4(b)(3) of the Act) and its intention thereby to review the

status of the plant taxa named therein. The above two taxa were

included in the July 1, 1975, notice. On June 16, 1976, the Service

published a proposal (41 FR 24523) to determine approximately 1,700

vascular plant species to be endangered species pursuant to section 4

of the Act. The list of 1,700 plant taxa was assembled on the basis of

comments and data received by the Smithsonian Institution and the

Service in response to House Document No. 94-51 and the July 1, 1975,

Federal Register publication. Cirsium hydrophilum var. hydrophilum and

Cordylanthus mollis ssp. mollis were included in the June 16, 1976,

Federal Register proposal.

General comments received on the 1976 proposal were summarized in

an April 26, 1978, notice (43 FR 17909). The Act's Amendments of 1978

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

grace period was given to those proposals already more than 2 years

old. In a December 10, 1979, notice (44 FR 70796), the Service withdrew

the June 16, 1976, proposal, along with four other proposals that had

expired.

The Service published an updated Notice of Review for plants on

December 15, 1980 (45 FR 82480). The two plant taxa were listed as

category 1 candidates for Federal listing in this document. Category 1

taxa were those that the Service has on file substantial information on

biological vulnerability and threats to support preparation of listing

proposals. On November 28, 1983, the Service published a supplement to

the Notice of Review (48 FR 53640); there were no changes to these taxa

in this supplement.

The plant notice was revised again on September 27, 1985 (50 FR

39526), February 21, 1990 (55 FR 6184), and September 30, 1993 (58 FR

51144). In these three notices Cirsium hydrophilum var. hydrophilum and

Cordylanthus mollis ssp. mollis were included as category 1 candidate

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

in the Federal Register (61 FR 7596) that discontinued the use of

candidate categories and considered the former category 1 candidates as

simply ``candidates'' for listing purposes.

Section 4(b)(3)(B) of the Act requires the Secretary to make

certain findings on 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 Cirsium hydrophilum var.

hydrophilum and Cordylanthus mollis ssp. mollis, because the 1975

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

1982, the Service found that the petitioned listing of these species

was warranted, but precluded by other pending listing actions, in

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

this finding was published on January 20, 1984 (49 FR 2485). The

finding was reviewed annually from October 1983 through 1994, pursuant

to section 4(b)(3)(C)(i) of the Act.

A proposal to list Cirsium hydrophilum var. hydrophilum and

Cordylanthus mollis ssp. mollis as endangered was published on June 12,

1995. The proposal was based on information supplied by reports to the

California Diversity Database, and observations and reports by numerous

botanists.

The processing of this final listing rule conforms with the

Service's final listing priority guidance published on December 5, 1996

(61 FR 64475). The guidance clarifies the order in which the Service

will process rulemakings following two related events, the lifting on

April 26, 1996, of the moratorium on final listings imposed on April

10, 1995 (Public Law 104-6) and the restoration of significant funding

for listing through passage of the omnibus budget reconciliation law on

April 26, 1996 following severe funding constraints imposed by a number

of continuing resolutions between November 1995 and April 1996. The

guidance calls for giving highest priority to handling emergency

situations (Tier 1) and second highest priority (Tier 2) to resolving

the listing status of outstanding proposed listings. Tier 3 includes

the processing of new proposed listings for species facing high

magnitude threats, and processing administrative findings on petitions.

Tier 4 includes the processing of critical habitat designations. This

final rule falls under Tier 2.

This rule has been updated to reflect any changes in distribution,

status and threats since the effective date of the listing moratorium,

and to incorporate information obtained through the public comment

period. This additional information was not of a nature to alter the

Service's decision to list the species.

Summary of Comments and Recommendations

In the proposed rule published June 12, 1995 in the Federal

Register (60 FR 31000), all interested parties were requested to submit

factual reports or information that might contribute to the development

of a final rule. The public comment period closed on August 21, 1995.

Appropriate State agencies, county and city governments, Federal

agencies, scientific organizations, and other interested parties were

contacted and requested to comment. A public hearing request was

received within 45 days of publication of the proposal from Paul

Campos, General Counsel for the Building Industry Association. Because

a Congressional moratorium on the Service's activities associated with

final listing actions was in effect from April 1995 to April 1996,

scheduling of the hearing was delayed. The Service subsequently

scheduled and held the public hearing on Wednesday, October 2, 1996,

from 6:00 p.m. to 8:00 p.m. at the Holiday Inn, 1350 Holiday Lane,

Fairfield, California. To accommodate the hearing, the public comment

period was reopened on September 6, 1996, and closed October 15, 1996.

Notice of the public hearing and reopening of the public comment period

was published in the Federal Register September 6, 1996 (61 FR 47105)

and in newspapers including The Napa Register on September 18, 1996,

The San Francisco Chronicle on September 18, 1996, The Contra Costa

Times on September 18, 1996, and The Fairfield Daily Republic on

September 19, 1996.

During the comment period, the Service received comments (letters

and oral testimony) from a total of 14 people. Some people submitted

more than one comment to the Service. Six commenters supported the

listing, one commenter opposed the listing, and seven commenters are

viewed as

[[Page 61919]]

neutral. One commenter submitted comments late. Among the six

commenters supporting the listing are the California Native Plant

Society, the University of California at Davis, and the Napa-Solano

Chapter of the Audubon Society. Three commenters provided detailed

information on locations, population sizes, and threats to the species.

These data have been incorporated into this rule. Two commenters stated

that they were researching the threats to the species and hoped that

the Service would be available to work with them in the creation of

protection and/or mitigation plans as necessary. One commenter

representing the Solano County Mosquito Abatement District stated they

are willing to work with the Service to avoid actions that may be

damaging to endangered plants and habitat. Opposing comments and other

comments questioning the proposed rule have been organized into

specific issues. These issues and the Service's response to each are

summarized as follows:

Issue 1: One commenter stated that the Service should make the

precise locations of the two tidal plants available to landowners and

the counties in which the species occur. This information would help

the landowners ensure that activities they conduct would not harm the

two species, if the species exist on their property.

Service Response: In the proposed rule, the Service stated that

these plants are restricted to salt or brackish tidal marsh within

Solano, Contra Costa, and Napa counties. Individuals owning land in

these counties who believe that their actions or activities may result

in harm to either of these two species should feel free to provide the

Service with detailed maps of their lands prior to conducting these

activities so that the Service can provide technical assistance on the

exact locations of these species. The Service will make every effort to

notify landowners and seek cooperation with surveys or other

conservation efforts. The complete file for this rule is available for

public inspection, and does contain general information about where the

species occurs. The Service is always willing to assist the public in

matters aimed at protecting sensitive species.

Issue 2: One commenter was concerned about the listing of

Cordylanthus mollis ssp. mollis, although they did not formally object

to the listing. Specifically, the commenter questioned what the legal

protection means to the subspecies when it is similar in appearance to

Cordylanthus mollis ssp. hispidus and the two cannot readily be

distinguished in the field and there is the possible occurrence of

hybridization.

Service Response: The taxonomy of the subspecies has been clarified

by Chuang and Heckard (1971), with Cordylanthus mollis ssp. mollis and

Cordylanthus mollis ssp. hispidus separated primarily by habitat, spike

length, and seed size; and secondarily by branching patterns and

hirsuteness (i.e., coarse stiff hairs). As with many subspecies, though

material may be difficult to identify in the field, Cordylanthus mollis

ssp. mollis and Cordylanthus mollis ssp. hispidus are recognized as

distinct subspecies (Chuang and Heckard 1971, Chuang and Heckard 1993).

As the term ``species'' is defined in the Act, the Service can apply

the protections of the Act to any species or subspecies of fish,

wildlife, or plants, that meets the definition of endangered or

threatened. The Act does not attempt to define ``species'' in

biological terms, and thus allows the term to be applied according to

the best current biological information and understanding of evolution,

speciation, and genetics.

Issue 3: One commenter questioned whether mosquito abatement

activities had led to a decline in Cordylanthus mollis ssp. mollis.

Service Response: As documented in Factor ``E'' below, mosquito

abatement activities, resulting from increased urbanization, have been

observed to adversely impact individual Cordylanthus mollis ssp. mollis

plants.

Issue 4: One commenter stated that there were considerably more

populations of Cordylanthus mollis ssp. mollis in Contra Costa County

than reported in the proposed rule, which according to the commenter

included only the East Navy marsh and Swanton's or Hasting's Slough

Marsh.

Service Response: Populations reported in the proposed rule as

occurring in Contra Costa County included Pt. Pinole, McAvoy Boat

Harbor, Hasting's Slough, and Concord Naval Weapons Station. As

mentioned in the ``Discussion of the Two Species'' section, populations

of annual plants tend to fluctuate from year to year. The Service views

the additional ``populations'' of Cordylanthus mollis ssp. mollis

located at East Navy South, Swanton's SW, Swanton's NW, and Pt. Pinole

to be extensions of existing populations that were included in the

proposed rule, and not an expansion of the overall range of this

species.

Issue 5: One commenter questioned the adequacy of many aspects of

the data used in the proposed rule. This commenter stated that listing

at this time is premature and also was concerned that the best

available knowledge, including information not yet in print, be used in

the rule.

Service Response: In accordance with the ``Interagency Cooperative

Policy on Information Standards under the Endangered Species Act'',

published in the Federal Register on July 1, 1994 (59 FR 34271), the

Service impartially reviews all scientific and other information to

ensure that any information used to promulgate a regulation to add a

species to the list of threatened and endangered species is reliable,

credible, and represents the best scientific and commercial data

available. The Service used information received from the California

Natural Diversity Data Base, knowledgeable botanists, and from studies

specifically directed at gathering the information on distribution and

threats. Information from botanical collections of these plants that,

in some cases, dates from the 1880's, was utilized in the preparation

of the proposed rule. The Service received information from Federal,

State, and local agencies, and consulted professional botanists during

the preparation of the proposed rule. Destruction and loss of habitat

and extirpation of populations of these two plants from a variety of

causes have been documented. The Service sought comments on the

proposed rule from Federal, State, and county entities, species

experts, and other individuals. All substantive new data received

during the public comment period have been incorporated into the final

rule. Specific justification for listing the two plant species is

summarized in Factors ``A'' through ``E.''

Issue 6: One commenter stated that we do not know that full tidal

action is needed for Cordylanthus mollis ssp. mollis.

Service Response: All known populations of Cordylanthus mollis ssp.

mollis occur in higher elevational zones within larger tidal marshes

that have fully developed tidal channel networks. In sites where this

taxa has been extirpated, full tidal action has often been lost.

Extensive surveys for Cordylanthus mollis ssp. mollis have been

conducted in tidal and diked marsh lands, and it has not been located

in any diked marshes.

Issue 7: One commenter stated that the plants occur in tidal

marshes and not in diked areas and, therefore, their lands do not

constitute critical habitat for the species.

Service Response: The designation of critical habitat for Cirsium

hydrophilum var. hydrophilum and Cordylanthus

[[Page 61920]]

mollis ssp. mollis is not prudent. Refer to the Critical Habitat

section of this final rule for a detailed discussion of the Service's

decision.

Peer Review

In accordance with Service peer review policy (July 1, 1994; 59 FR

34270), the Service sent copies of the proposed rule to three

independent botanists and tidal marsh specialists who are professors.

The Service solicited their review of the proposed rule and pertinent

scientific and commercial information substantive to the listing

determination. The reviewers did not respond to the Service.

Summary of Factors Affecting the Species

Section 4 of the Act and regulations (50 CFR part 424) promulgated

to implement the listing provisions of the Act set forth the procedures

for adding species to the Federal lists of endangered and threatened

species. A species may be determined to be endangered or threatened due

to one or more of the five factors described in section 4(a)(1). These

factors and their application to Cirsium hydrophilum (Greene) Jepson

var. hydrophilum (Suisun thistle) and Cordylanthus mollis Gray ssp.

mollis (soft bird's-beak) are as follows:

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

of Their Habitat or Range

Habitat for Cirsium hydrophilum var. hydrophilum and Cordylanthus

mollis ssp. mollis has been severely reduced by past human activities.

Hydraulic mining, diking and filling involved in agricultural land

conversion and urbanization, waste disposal, port and industrial

development, railroad construction, dredging, salt production, and

sedimentation have drastically reduced the amount of tidal marsh in

California (Atwater 1979, MacDonald 1990, Association of Bay Area

Governments (ABAG) 1991). Changes in freshwater inflow, pollution,

habitat conversion, habitat fragmentation, and alteration of the

natural tidal regime continue to threaten the habitat of both species.

In San Pablo Bay, historical tidal wetlands have been diked and

converted to agricultural lands that were farmed for oat hay. In

addition, approximately 4,050 ha (10,000 acres) also were converted to

salt ponds. In Suisun Bay, most of the 28,780 ha (71,100 acres) of

tidal marshes that existed in 1850 were converted originally to

agricultural land, and then to diked seasonal wetlands used for

waterfowl management. Only 3,780 ha (9,340 acres) within Suisun Marsh

remain as tidal marsh (Dedrick 1989). Most of the remaining tidal

marshes are backed by steep levees, allowing for little or no

transitional wetland habitat--the habitat required by Cirsium

hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis.

The change of freshwater inflow to the marsh has modified the

habitat for these two taxa. Agricultural and municipal uses have

diverted over 50 percent of the historical annual inflow of freshwater

from the Suisun Marsh and Delta (ABAG 1991). During the past 40 years,

significant portions of the tidally-influenced brackish marsh within

Suisun Bay have become more saline due to decreased freshwater flows

(Pavlik 1992). Increased salt levels within the Suisun Marsh may

threaten Cordylanthus mollis ssp. mollis and Cirsium hydrophilum var.

hydrophilum. Salt stress causes decreased plant growth and lower

reproduction. When salinity levels remain high during extended drought

conditions, population viability of these species may be greatly

impaired to the extent they lose their ability to maintain themselves

as components of a healthy wetlands ecosystem (Pavlik 1992). When

salinity increases in the root zone, salt stress reduces plant

abundance and causes shifts in plant distribution. This has occurred

even in common salt-tolerant plants (Pavlik 1992). Cordylanthus mollis

ssp. mollis and Cirsium hydrophilum var. hydrophilum may be especially

vulnerable to increased salt levels due to the limited number of

individuals and their restricted distribution. Additionally, decreased

levels of salt within the Suisun Marsh may threaten Cordylanthus mollis

ssp. mollis by affecting its host plants. Cordylanthus mollis ssp.

mollis is a hemi-root parasite that completes its life cycle by

parasitizing the roots of perennial halophytes. Salicornia virginica

and Distichlis spicata are halophyte plant associates and likely hosts

of Cordylanthus mollis ssp. mollis, although specifics of the host

relationship have yet to be determined. During the wet and above normal

water years of 1995 and 1996, these two plant associates have decreased

in abundance in the areas where the Cordylanthus mollis ssp. mollis is

found. Therefore, it is important to maintain the long term natural

variability of hydrologic conditions in order to ensure the survival of

Cordylanthus mollis ssp. mollis and the species upon which it may

depend (R. Brown, in. litt. 1996).

The two plant species also face threats from habitat fragmentation

associated with commercial and residential development, road

construction, and ongoing effects of historical fragmentation by

activities associated with clearing for agriculture, railroad

construction, dredging, and conversion to salt ponds. These activities

have split habitat into smaller, more isolated units. Habitat

fragmentation may alter the physical environment, changing the

microclimate, quantity of water, and nutrients required by remnant

vegetation (Saunders et al. 1991). In addition, a higher proportion of

the area of these fragmented natural areas is subject to the influences

from external factors (e.g., additional development, off-road vehicular

use, numerous other human influences, and competition with non-native

vegetation) that disrupt natural ecosystem processes. Further effects

of habitat fragmentation on the two plant species are discussed in

Factor ``E.''

Projects that convert habitat from tidal marsh to diked seasonal

wetlands potentially threaten both Cirsium hydrophilum var. hydrophilum

and Cordylanthus mollis ssp. mollis. Within Suisun Marsh, the

conversion of tidal marsh to diked seasonal wetlands, a practice common

in the development of waterfowl managements areas, is a potential

threat for both species (Randall Brown, in litt. 1993). The CDFG's

planned conversion of 40 ha (100 acres) of Distichlis spicata (an

associated species for both Cirsium hydrophilum var. hydrophilum and

Cordylanthus mollis ssp. mollis) in Hill Slough as enhancement of

habitat for wildlife (CDWR, in litt. 1996), will further diminish the

amount of suitable habitat for Cirsium hydrophilum var. hydrophilum and

Cordylanthus mollis ssp. mollis.

Habitat conversion for planned future urbanization threatens both

species. In the Association of Bay Area Governments' analysis of the

San Francisco Bay Estuary, over 4,856 ha (12,000 acres) of wetlands in

the Bay will be subject to moderate to high development uses over the

next 12 years (ABAG 1991). Highway projects within the San Francisco

Bay Estuary during the next 20 years alone are expected to fill 146 ha

(362 acres) of wetlands (ABAG 1991). Some of the highway projects will

threaten Cordylanthus mollis ssp. mollis by eliminating habitat into

which existing populations of this plant could expand. Widening of

California Highway 37 will impact wetlands that occur along the Napa

River (ABAG 1991) and may adversely affect habitat for Cordylanthus

mollis

[[Page 61921]]

ssp. mollis. Proposed widening of Highway 12 near the Suisun Marsh

would threaten the habitats of Cordylanthus mollis ssp. mollis and

Cirsium hydrophilum var. hydrophilum (Brenda Grewell, pers. comm.

1993), either due to habitat fragmentation as discussed above or by

runoff.

Projects that alter the natural tidal regime may also threaten both

taxa. Although the California Department of Water Resources is no

longer pursuing the Western Suisun Marsh Salinity Control Project,

projects that may alter the salinity regime and flows, are being

evaluated under the CalFed Bay-Delta Program. The goals of the program

will be to contribute toward recovery of sensitive species rather than

to recover the species. The alternatives of the CalFed program have not

been identified yet, but could involve habitat modification associated

with restoration activities and the construction of various storage and

conveyance structures. These actions could subject tidal marsh to

altered flows and changes in salinity that could be detrimental to

Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis ssp.

mollis. The restoration plans have not specifically addressed Cirsium

hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis.

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

Overutilization currently is not known to be a factor for these two

plants. Increased collecting for scientific or horticultural purposes

or excessive visits by individuals interested in seeing rare plants

could result, however, from increased publicity resulting from

publication of this proposal.

C. Disease or Predation

The health of one of the largest occurrences of Cordylanthus mollis

ssp. mollis is declining due to insect predation (Brenda Grewell, pers.

comm. 1993). Intense insect seed predation has been observed in the

population at Joice Island and Hill Slough within Suisun Marsh in

Solano County (Randall Brown, in litt. 1993). The presence of a thistle

weevil (Rhinocyllus conicus) in a portion of the Cirsium hydrophilum

var. hydrophilum population was documented in June 1996 by CDWR. The

CDWR has collected thistle weevil in Cirsium hydrophilum var.

hydrophilum flower heads, and observed many flower heads with no seeds.

The larval stage of this weevil feeds on the seed. Phyciods mylitta

caterpillars were collected on a population of Cirsium hydrophilum var.

hydrophilum in September 1996. These caterpillars have caused

significant damage to the rosettes of plants that will flower next year

(R. Brown, in. litt. 1996).

Disease is not known to be a factor for either Cirsium hydrophilum

var. hydrophilum or Cordylanthus mollis ssp. mollis.

D. The Inadequacy of Existing Regulatory Mechanisms

Section 404 of the Clean Water Act represents the primary Federal

law that affords some protection for these two plants since they occur

in wetlands. However, the Clean Water Act, by itself does not provide

adequate protection for either Cirsium hydrophilum var. hydrophilum or

Cordylanthus mollis ssp. mollis. The Army Corps of Engineers (Corps) is

the Federal agency responsible for administering the section 404

program. Under section 404, nationwide permits may be issued for

certain activities that are considered to have minimal impacts,

including oil spill cleanup, minor dredging, maintenance dredging of

existing basins, some road crossings, and minor bank stabilization

(December 13, 1996; 61 FR 65874-65922). However, the Corps seldom

withholds authorization of an activity under nationwide permits unless

the existence of a listed threatened or endangered species would be

jeopardized, regardless of the significance of the affected wetland

resources. Activities that do not qualify for authorization under a

nationwide permit, including projects that would result in more than

minimal adverse environmental effects, either individually or

cumulatively, may be authorized by an individual or regional general

permit, which are typically subject to more extensive review.

Regardless of the type of permit deemed necessary under section 404,

rare species such as Cirsium hydrophilum var. hydrophilum and

Cordylanthus mollis ssp. mollis may receive no special consideration

with regard to conservation or protection unless they are listed under

the Act.

The Service, as part of the section 404 review process, provides

comments to the Corps on nationwide permits and individual permits. The

Service's comments are only advisory, although procedures exist for

elevating permit review within the agencies when disagreements between

the Service and Corps arise concerning the issuance of a permit. In

practice, the permitting process for wetland fills and other activity

under section 404 are insufficient to protect rare species such as

Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis ssp.

mollis.

CDFG has formally designated Cordylanthus mollis ssp. mollis as

rare under the California Endangered Species Act (chapter 1.5 sec. 2050

et seq. of the California Fish and Game Code and Title 14, California

Code of Regulations 670.2). This designation by the State of California

requires individuals to obtain a permit or an agreement with the CDFG

to possess or ``take'' a listed species. Although the ``take'' of

State-listed plants is prohibited (California Native Plant Protection

Act, chapter 10 sec. 1908 and California Endangered Species Act,

chapter 1.5 sec. 2080), State law exempts the taking of such plants via

habitat modification or land use changes by the landowner. After CDFG

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

property, the California Native Plant Protection Act requires only that

the landowner notify the agency ``at least 10 days in advance of

changing the land use to allow salvage of such a plant'' (chapter 10

sec. 1913 of the California Fish and Game Code).

The California Environmental Quality Act (CEQA) requires a full

disclosure of the potential environmental impacts of proposed projects.

CEQA also obligates disclosure of environmental resources within

proposed project areas and may enhance opportunities for conservation

efforts. However, CEQA does not guarantee that such conservation

efforts will be implemented. The public agency with primary authority

or jurisdiction over the project is designated as the lead agency, and

is responsible for conducting a review of the project and 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.'' Once

significant effects are identified, the lead agency has the option to

require mitigation for effects through changes in the project or to

decide that overriding considerations make mitigation infeasible. In

the latter case, projects may be approved that cause significant

environmental damage, such as resulting in the loss of sites supporting

State-listed species. Mitigation plans usually involve the

transplantation of the plant species to an existing habitat or an

artificially created habitat. Following the development of the

transplantation plan, the original site is destroyed. Therefore, if the

mitigation effort fails, the resource has already been lost.

[[Page 61922]]

Protection of listed species through CEQA is, therefore, dependent upon

the discretion of the lead agency involved. In addition, revisions to

the CEQA guidelines have been proposed that, if made final, may weaken

protections for threatened, endangered, and other sensitive species

(U.S. Department of the Interior, in. litt. 1997). Final CEQA

guidelines are forthcoming.

In 1977, the State of California enacted the Suisun Marsh

Preservation Act (Preservation Act) to protect Suisun Marsh. This

legislation established primary and secondary management areas. The

secondary management areas were established to provide a buffer against

development. In 1982, the Preservation Act was amended to exclude, in

the primary management area, land proposed for the Lawlor Ranch

development. Exclusion of this land has reduced the buffer between

urbanization and Suisun Marsh. The indirect effects of urbanization are

discussed further in Factors ``A'' and ``E'.

E. Other Natural or Manmade Factors Affecting Their Continued Existence

Both populations of Cirsium hydrophilum var. hydrophilum are

adversely affected by non-native plants. Lepidium latifolium (perennial

peppergrass), a rated noxious weed (California Department of Food and

Agriculture 1993), has ``moved in especially in the last 5 years''

(Brenda Grewell, pers. comm. 1993). Cirsium hydrophilum var.

hydrophilum is out-competed by L. latifolium. Hybridization with

Cirsium vulgare (bull thistle), a non-native, also is a potential

threat. Cirsium vulgare hybridizes readily with other Cirsium.

Hybridization with Cirsium vulgare was suggested as a possible

explanation for the previously presumed extinction of Cirsium

hydrophilum var. hydrophilum (Smith and Berg 1988). Cordylanthus mollis

ssp. hispidus is a species generally associated with more alkaline

habitats than tidal marshes where Cordylanthus mollis ssp. mollis is

found. However, hybridization and mixing of traits may be occurring

between these two taxa or subspecies as possibly indicated in some

voucher species kept in the University of California (Berkeley) and

Jepson herbarium reference collections.

Chronic pollution from petroleum products is an ongoing threat to

the habitat of both plants within San Pablo Bay and southern Suisun

Bay. Oil spills can result in severe and long lasting destruction of

salt marsh vegetation. Studies on mangroves, seagrasses, salt marsh

grasses, and algae have shown that petroleum causes death, reduced

growth, and impaired reproduction in large plants (Albers 1992). The

effects of a petroleum spill to plants depends on several factors

including the time of year, the type of petroleum product (crude or

refined), and the degree of coverage (Hershner and Moore 1977; Rob

Ricker, CDFG, pers. comm. 1993). A plant entirely covered by oil will

die. Oil that seeps into sediments can affect the roots or rhizomes of

plants as well. Oil spills may also affect plants by decreasing the

amount of plant biomass (either above or below ground), or by

decreasing the reproductive capacity of the plant (Rob Ricker, pers.

comm. 1993).

Four hundred to 800 oil spills occur annually within California

(Rob Ricker, pers. comm. 1993). Within northern California, 309

reported spills affecting marine or estuarine habitats within the

jurisdiction of the Service's Sacramento Fish and Wildlife Office

occurred between March 1992 and March 1993 (Office of Environmental

Services (OES) 1992 and 1993). Most of these spills occurred in the San

Francisco Bay Estuary.

In 1988, an oil spill in Martinez, California, flowed as far as

Suisun Bay. Although these plants are found within the northern part of

the Suisun Marsh and may not be threatened directly by an oil spill in

San Francisco Bay, the potential for oil spills exists from vessels

operating within the marsh, as well as from an accidental spill from

railroads that bisect the marsh. Oil spills also are an ever present

threat to Cordylanthus mollis ssp. mollis occurring near Point Pinole

(Pat O'Brien, General Manager, East Bay Regional Parks District, in

litt. 1994).

A hazardous waste clean-up effort resulted in the removal of a

portion of the Middle Point Cordylanthus mollis ssp. mollis population

in 1994. This population is found on the Concord Naval Weapons Station

Property (Ruygt 1994).

Chronic pollution from point and non-point sources, including heavy

metals from industrial discharges, also may threaten the habitat of

both plants. It is unknown, however, what effects heavy metals in

industrial discharges have on these two taxa. In 1978, 52 municipal

treatment facilities and 42 industrial facilities continuously

discharged wastewater into San Francisco Bay (Western Ecological

Services Company (WESCO) 1986). By 1982, over 200 permits for

industrial discharges had been granted (WESCO 1986).

The amounts of heavy metals in the San Francisco Bay Estuary are

projected to increase during the next 10 years. The San Francisco Bay

Conservation and Development Commission, Center for Environmental

Design Research, and the Greenbelt Alliance (1992) collectively modeled

plausible land use changes and their impact to the health of the San

Francisco Bay Estuary. Several methods were used to determine the

effects of land use change including two future land use models. The

model projecting the highest increase in heavy metal was based on a

composite of the general plan maps for all of the counties in the

estuary. Amounts of heavy metals including lead, nickel, and cadmium

were projected to increase under both future land use models in all the

watersheds that include habitat for these two plants.

As discussed in Factor ``A'', habitat fragmentation may alter the

physical environment. In addition, habitat fragmentation increases the

risks of extinction due to random events. The small, isolated nature of

the two populations of Cirsium hydrophilum var. hydrophilum also makes

extinction from random events more likely. Random events such as insect

or pest outbreaks, extended drought, oil spills or a combination of

several such events, could destroy part of a single population or

entire populations. The risk of extirpation due to genetic and

demographic problems associated with small populations is a threat to

at least the two occurrences of Cordylanthus mollis ssp. mollis that

have fewer than 25 individuals. Additionally, the ongoing harvesting,

planting of seed, and attempts at artificially expanding one of the

populations in Contra Costa County, that is occurring without proper

permits from the State of California, potentially threatens the genetic

diversity of Cordylanthus mollis ssp. mollis (Deborah L. Elliot-Fisk,

University of California at Davis, in. litt. 1996; David Tibor, CNPS,

in. litt. 1996).

Mosquito abatement will increase as a result of urbanization

(Brenda Grewell, pers. comm. 1993). Mosquito abatement activities

threaten Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis

ssp. mollis. Within Suisun Marsh, both species grow along or near first

order channels and mosquito abatement drainage ditches. Ditch cleaning

and dredging, and the chemical spraying of vegetation along these

channels or ditches may adversely impact individual plants. Plant

populations parallel to these channels have been subjected to damage by

vehicles used off established roads during mosquito abatement

activities (Randall Brown, in. litt. 1993).

[[Page 61923]]

Foot traffic is a threat to Cordylanthus mollis ssp. mollis. A

trail runs through the occurrence located on East Bay Regional Park's

Point Pinole Regional Seashore. Foot traffic also is a potential threat

to the largest occurrence of Cordylanthus mollis ssp. mollis due to the

increased urbanization occurring within 0.40 kilometer (0.25 mile).

Foot traffic disturbance through Cordylanthus mollis ssp. mollis can

easily damage the shallow and very brittle roots (Stromberg 1986).

Erosion is a threat to Cordylanthus mollis ssp. mollis located on

the Point Pinole Regional Seashore. The main population of Cordylanthus

mollis ssp. mollis is immediately adjacent to a slough that is

undergoing bank slumping (Stromberg 1986). Individual plants are

threatened by undercutting of the bank and subsequent slumping of the

marsh soil into the slough.

Cattle grazing continues on both private and state owned tidal

marsh lands adjacent to Hill Slough, and in the privately owned tidal

marsh near McAvoy Harbor. Extensive areas of bare ground are now

present within the Cordylanthus mollis ssp. mollis population,

decreasing the size of the populations (R. Brown, in. litt. 1996).

The Service has carefully assessed the best scientific and

commercial information available regarding the past, present, and

future threats faced by these species in determining to finalize this

rule. Cirsium hydrophilum var. hydrophilum, limited to only two

populations, is threatened across all of its current range by indirect

effects of urbanization, projects that alter the natural tidal regime,

vulnerability to extinction due to random events and environmental

factors, and competition with non-native vegetation. Urbanization,

industrial development, and agricultural land conversion have

extirpated or potentially extirpated nearly 45 percent of known

occurrences of Cordylanthus mollis ssp. mollis. Cordylanthus mollis

ssp. mollis is restricted to about 12 ha (31 acres) of habitat.

Indirect effects of urbanization including habitat fragmentation and

conversion, projects that alter natural tidal regimes, alteration of

salinity levels, water pollution, mosquito abatement activities

(including off-highway vehicle use), insect predation, erosion, foot

traffic, and extirpation due to genetic and demographic problems

continue to threaten most occurrences of Cordylanthus mollis ssp.

mollis across its remaining range. Because Cirsium hydrophilum var.

hydrophilum and Cordylanthus mollis ssp. mollis are in danger of

extinction throughout all or a significant part of their respective

ranges, they meet the definition of ``endangered'' as it is defined in

the Act. The preferred action, therefore, is to list Cirsium

hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis as

endangered.

Alternatives to this action were considered but not preferred. Not

listing Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis

ssp. mollis or listing these taxa as threatened would not provide

adequate protection and would not be consistent with the Act. The

Service is not proposing to designate critical habitat for these plants

at this time, as discussed below.

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 section 4 of the Act, on which

are found those physical or biological features (I) essential to the

conservation of the species and (II) that may require special

management consideration or protection and; (ii) specific areas outside

the geographical area occupied by a species at the time it is listed,

upon determination that such areas are essential for the conservation

of the species. ``Conservation'' as it is defined in section 3(3) of

the Act 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 listed. 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.

The Service finds that designation of critical habitat is not

prudent for Cirsium hydrophilum var. hydrophilum and Cordylanthus

mollis ssp. mollis at this time.

Critical habitat designation for Cirsium hydrophilum var.

hydrophilum is not prudent due to lack of benefit. Cirsium hydrophilum

var. hydrophilum is a wetland species and alteration of its tidal marsh

habitat may be regulated by the Corps under the Clean Water Act. The

inadequacies of the permitting process for wetland fills and other

activities in protecting rare species is discussed under Factor ``D''

of the ``Summary of Factors Affecting the Species'' section above.

Although there may be a Federal nexus for Cirsium hydrophilum var.

hydrophilum through the Clean Water Act, the designation of critical

habitat for this species would provide little or no benefit to the

protection of this species beyond that provided by listing. Because of

the small size of the total population of this species (i.e., a few

thousand individuals) and the small area of occupied habitat (i.e.,

less than 0.40 ha (1 ac)), any adverse modification of the occupied

habitat would likely jeopardize the continued existence of Cirsium

hydrophilum var. hydrophilum.

Critical habitat designation for Cordylanthus mollis ssp. mollis is

not prudent due to lack of benefit. Cordylanthus mollis ssp. mollis is

a wetland species and alteration of its tidal marsh habitat may be

regulated by the Corps under the Clean Water Act. The inadequacies of

the permitting process for wetland fills and other activities in

protecting rare species is discussed under Factor ``D'' of the

``Summary of Factors Affecting the Species'' section above. Because of

the small size of the total population of this species (i.e., several

thousand individuals) and the small area of occupied habitat (i.e.,

about 12 ha (31 ac)), any adverse modification of the occupied habitat

would likely jeopardize the continued existence of Cordylanthus mollis

ssp. mollis. Moreover, any benefit that may be gained by designation of

critical habitat is out weighed by the detriment of such a designation.

The publication of maps depicting precise locations of critical habitat

that is required for designation would contribute to the further

decline of this species by facilitating trespassing, uncontrolled

collecting, and hindering recovery efforts. Urban encroachment in the

Suisun Marsh Protection Zone increases the threat of foot traffic in

sensitive tidal marsh areas where these plants occur (R. L. Brown,

California Department of Water Resources, in. litt. 1993), and these

areas are easily accessed by foot from the public roads near the marsh.

As discussed in Factor ``E'' above, the ongoing harvesting of seeds and

attempts at artificially expanding one of the populations in Contra

Costa County by seeding, that is occurring without proper permits from

the State of California, potentially threatens the genetic diversity of

Cordylanthus mollis ssp. mollis (Deborah L. Elliot-Fisk,

[[Page 61924]]

University of California at Davis, in. litt. 1996; David Tibor, CNPS,

in. litt. 1996).

Critical habitat receives consideration under section 7 of the Act

with regard to actions carried out, authorized, or funded by a Federal

agency. As such, designation of critical habitat may affect non-Federal

lands only where such a Federal nexus exists. Critical habitat

designation requires Federal agencies to ensure that their actions do

not result in destruction or adverse modification of critical habitat.

However, both jeopardizing the continued existence of a species and

adverse modification of critical habitat have similar standards and

thus similar thresholds for violation of section 7 of the Act. In fact,

biological opinions that conclude that a Federal agency action is

likely to adversely modify critical habitat but not jeopardize the

species for which it is designated are extremely rare.

Most populations of the two taxa occur on private or State lands.

The designation of critical habitat on private or State lands will

afford no additional benefit for these species over that provided as a

result of listing provided there is no Federal nexus. Designating

critical habitat does not create a management plan for the areas where

the listed species occurs; does not establish numerical population

goals or prescribe specific management actions (inside or outside of

critical habitat); and does not have a direct effect on areas not

designated as critical habitat.

Protection of the habitat of these species will be addressed

through the section 4 recovery process and the section 7 consultation

process. The Service believes that Federal involvement in the areas

where these plants occur can be identified without the designation of

critical habitat. For the reasons discussed above, the Service finds

that the designation of critical habitat for these plants is not

prudent.

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

activities. Recognition through listing encourages and results in

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

and individuals. The Act provides for possible land acquisition and

cooperation with the State and requires that recovery plans be

developed for all listed species. The protection required of Federal

agencies and the prohibitions against certain activities involving

listed plants are discussed, in part, below.

Section 7(a) of the Act 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)(1) requires Federal agencies to use their authorities to

further the purposes of the Act by carrying out programs for listed

species. If a species is listed, section 7(a)(2) of the Act requires

Federal agencies to ensure that activities they authorize, fund, or

carry out are not likely to jeopardize the continued existence of such

a species or to destroy or adversely modify its critical habitat. If a

Federal action may affect a listed species or its critical habitat, the

responsible Federal agency must enter into consultation with the

Service.

One occurrence of Cordylanthus mollis ssp. mollis is on land that

is managed by the U.S. Navy. Activities conducted by the U.S. Navy that

may affect this species would be subject to review under section 7 of

the Act. The U.S. Bureau of Reclamation and the Corps would become

involved with these plants through their funding of projects that may

directly impact the plants or support development of areas that contain

suitable salt or brackish marsh habitat for these plants. The Corps

also would be involved as an authorizing agency for permits to dredge

or fill wetlands and navigable waters of the United States. The Corps

regulates dredging and filling of jurisdictional wetlands and navigable

waters, including salt marshes, under section 404 of the Clean Water

Act. By regulation, nationwide permits may not be issued where a

federally listed endangered or threatened species may be affected by

the proposed project without first completing consultation pursuant to

section 7 of the Act. The presence of a listed species would highlight

the national importance of these resources. Highway construction and

maintenance projects that receive funding from the Department of

Transportation (Federal Highway Administration) also would be subject

to review under section 7 of the Act.

Listing Cirsium hydrophilum var. hydrophilum and Cordylanthus

mollis ssp. mollis as endangered provides for development of a recovery

plan (or plans) for them. Such plan(s) would bring together both State

and Federal efforts for conservation of the plants. The recovery

plan(s) would establish a framework for agencies to coordinate

activities and cooperate with each other in conservation efforts. The

plan(s) would set recovery priorities and estimate costs of various

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

specific management actions necessary to achieve conservation and

survival of the two species. Additionally, pursuant to section 6 of the

Act, the Service would be able to grant funds to affected states for

management actions aiding the protection and recovery of these species.

The Act and its implementing regulations set forth a series of

general prohibitions and exceptions that apply to all endangered

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

50 CFR 17.61, 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 apply to agents of the Service and State conservation

agencies.

The Act and 50 CFR parts 17.62, 17.63, and 17.72 also provide for

the issuance of permits to carry out otherwise prohibited activities

involving endangered or threatened plant species under certain

circumstances. The Service anticipates few permits would ever be sought

or issued for the two species because the plants are not common in

cultivation or in the wild. Requests for copies of the regulations on

listed plants and inquiries regarding them may be addressed to U.S.

Fish and Wildlife Service, Ecological Services, Endangered Species

Permits, 911 NE 11th Avenue, Portland, Oregon 97232-4181; telephone

503/231-2063 or FAX 503/231-6243).

The Act directs Federal agencies to protect and promote the

recovery of listed species. Collection of listed plants on Federal

lands is prohibited. Proposed Federal projects and actions including

activities on private or non-Federal lands that involve Federal funding

or permitting require review to ensure they will not jeopardize the

survival of any listed species, including plants. The Act does not

prohibit ``take'' of listed plants on private lands, but private

landowners

[[Page 61925]]

should be aware of State laws protecting imperiled plants.

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.

Most occurrences of both plants are either on private or non-Federal

lands. One population of Cordylanthus mollis ssp. mollis occurs on land

managed by the Department of Defense (U.S. Navy). The Service believes

that the following actions would result in a violation of section 9,

although possible violations are not limited to these actions alone--

collection, damage, or destruction of these species on Federal lands,

except in certain cases described below; and activities on non-Federal

lands conducted in knowing violation of California State law, which

requires a ten day notice be given before taking of plants on private

land. The Service believes that, based on the best available

information at this time, the following actions will not result in a

violation of section 9 on private land provided that they do not

violate State trespass or other laws--waterfowl hunting, bird watching,

and fishing. Activities that occur on Federal land, or on private land

that receive Federal authorization, permits, or funding, and for which

either a Federal endangered species permit is issued to allow

collection for scientific or recovery purposes, or a consultation is

conducted in accordance with section 7 of the Act, would also not

result in a violation of section 9. The Service is not aware of any

otherwise lawful activities being conducted or proposed by the public

that will be affected by this listing and result in a violation of

section 9. General prohibitions and exceptions that apply to all

endangered plants in section 9(a)(2) of the Act, implemented by 50 CFR

17.61, apply as discussed earlier in this section. Questions regarding

whether specific activities will constitute a violation of section 9

should be directed to the Field Supervisor of the Service's Sacramento

Fish and Wildlife Office (see ADDRESSES section).

National Environmental Policy Act

The Fish and Wildlife Service has determined that an Environmental

Assessment or Environmental Impact Statement, 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 Act. A notice outlining the Service's reasons for this

determination 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.

References Cited

A complete list of all references cited herein is available, upon

request, from the Field Supervisor, Sacramento Fish and Wildlife Office

(see ADDRESSES section).

Author: The primary authors of this final rule are Kirsten Tarp and

Matthew D. Vandenberg, U.S. Fish and Wildlife Service, Sacramento Fish

and Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Regulations Promulgation

Accordingly, Part 17, subchapter B of chapter I, Title 50 of the

Code of Federal Regulations, is amended 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. Section 17.12(h) is amended 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 name Status When listed Critical Special

Scientific name Common name habitat rules

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

Flowering Plants

* * * * * * *

Cirsium hydrophilum var. Suisun thistle...... U.S.A. (CA)........ Asteraceae......... E ........... NA NA

hydrophilum.

* * * * * * *

Cordylanthus mollis ssp. mollis.. Soft bird's-beak.... U.S.A. (CA)....... Scrophulariaceae... E ........... NA NA

* * * * * * *

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

Dated: November 12, 1997.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 97-30552 Filed 11-19-97; 8:45 am]

BILLING CODE 4310-55-P