Endangered and Threatened Wildlife and Plants; Proposed Threatened Status for the Plant Thelypodium howellii ssp. spectabilis (Howell's spectacular thelypody)

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE52

Endangered and Threatened Wildlife and Plants; Proposed

Threatened Status for the Plant Thelypodium howellii ssp. spectabilis

(Howell's spectacular thelypody)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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

Thelypodium howellii ssp. spectabilis (Howell's spectacular thelypody)

as threatened pursuant to the Endangered Species Act of 1973, as

amended (Act). Thelypodium howellii ssp. spectabilis is known from 11

sites in Baker and Union counties, Oregon. This taxon is threatened by

a variety of factors including habitat destruction and fragmentation

from agricultural and urban development, grazing by domestic livestock,

competition from non-native vegetation, and alterations of wetland

hydrology. This proposal, if made final, would implement the Federal

protection and recovery provisions afforded by the Act for the plant.

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

16, 1998. Public hearing requests must be received by February 27,

1998.

ADDRESSES: Comments and materials concerning this proposal should be

sent to the U.S. Fish and Wildlife Service, Snake River Basin Office,

1387 S. Vinnell Way, Room 368, Boise, Idaho 83709. Comments and

materials received will be available for public inspection, by

appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Robert Ruesink, Field Supervisor (see

ADDRESSES section) (telephone 208/378-5243; facsimile 208/378-5262).

SUPPLEMENTARY INFORMATION:

Background

Thelypodium howellii ssp. spectabilis is a herbaceous biennial that

occurs in moist, alkaline meadow habitats at approximately 1,000 meters

(m) (3,000 feet (ft)) to 1,100 m (3,500 ft) elevation in northeast

Oregon. The plant is known from 11 sites (5 populations) ranging in

size from 0.01 hectares (ha) (0.03 acres (ac)) to 16.8 ha (41.4 ac) in

the Baker-Powder River valley in Baker and Union counties. The total

occupied habitat for this species is approximately 40 ha (100 ac). One

site, historically known from Malheur County (the type locality), has

not been relocated since 1927 and is considered to be extirpated (Kagan

1986). The entire extant range of this taxon lies within a 21 kilometer

(km) (13 mile (mi)) radius of Haines, Oregon.

The Baker-Powder River Valley region, containing the 11 extant

Thelypodium howellii ssp. spectabilis sites, is an agricultural area

due to its relatively low elevation and rich soils. The region is

bordered on the west by the Elkhorn Mountains and on the east by the

Wallowa Mountains (Kagan 1986). Annual precipitation for the Baker

Valley averages 27 centimeters (cm) (10.6 inches (in)), most falling as

snow in winter. Weather patterns follow the interior continental

weather systems with little maritime influence. Winters are cold and

summers are warm and dry (Larkin and Salzer 1992).

Thelypodium howellii ssp. spectabilis grows to approximately 60 cm

(2 ft) tall, with branches arising from near the base of the stem. The

basal leaves are approximately 5 cm (2 in) long with wavy edges, and

are arranged in a rosette. Stem leaves are shorter, narrow, and have

smooth edges. Flowers appear in loose spikes at the ends of the stems.

Flowers have four purple petals approximately 1.9 cm (0.75 in) in

length, each of which is borne on a short (0.6 cm (0.25 in)) stalk.

Fruits are long, slender pods (Greenleaf 1980, Kagan 1986).

This taxon was thought to be extinct until rediscovered by Kagan in

1980 near North Powder (Kagan 1986). The 11 sites currently known to

contain Thelypodium howellii ssp. spectabilis are located near the

communities of North Powder, Haines, and Baker. The North Powder T.

howellii ssp. spectabilis population contains 5 sites. Two of these

sites are provided some protection; the largest is subject to a

conservation easement 16.8 ha (41.4 ac) on which the Oregon Department

of Fish and Wildlife has the assigned management and administration

responsibility; and one site near the town of North Powder, less than

0.8 ha (2.3 ac) in size, until recently, had a plant protection

agreement between the landowner and The Nature Conservancy. The Haines

plant population consists of three small sites located in or near the

town of Haines. A 0.7 ha (1.8 ac) site west of Baker is within a 8 ha

(20 ac) pasture adjacent to a road. Another site north of Baker (0.03

ha (0.08 ac)) exists in a small remnant of meadow habitat surrounded by

farmland. One site approximately 8 km (5 mi) north of North Powder is

located on private land at Clover Creek (Kagan 1986, Oregon Natural

Heritage Program (ONHP) 1997).

Thelypodium howellii var. spectabilis was first described by Peck

in 1932 (Peck 1932) from a specimen collected in 1927 near Ironside,

Oregon (Malheur County). In 1973, Al-Shehbaz revised the genus and

elevated the variety to subspecies status (Al-Shehbaz 1973). This taxon

has larger petals than T. howellii ssp. howellii, and the paired

filaments are not united (Al-Shehbaz 1973, Kagan 1986, Antell 1990). In

addition, although both taxa occur in eastern Oregon, habitats do not

overlap (Kagan 1986). For purposes of this proposal, T. howellii ssp.

spectabilis is recognized as a subspecies because of the taxonomic

distinction made in 1973 (Al-Shehbaz 1973), although the plant was

treated as a variety in the candidate assessment process (see Previous

Federal Action section).

Thelypodium howellii ssp. spectabilis occurs in wet alkaline

meadows in valley bottoms, usually in and around woody shrubs that

dominate the habitat on the knolls and along the edge of the wet meadow

habitat between the knolls. Associated species include Sarcobatus

vermiculatus (greasewood), Distichlis stricta (alkali saltgrass),

Elymus cinereus (giant wild rye), Spartina gracilis (alkali cordgrass),

and Poa juncifolia (alkali bluegrass) (Kagan 1986). Soils are

pluvial(rain)-deposited alkaline clays mixed with recent alluvial

(material deposited by running water) silts, and are moderately well-

drained (Kagan 1986).

Thelypodium howellii ssp. spectabilis may be dependent on periodic

flooding since it appears to rapidly colonize areas adjacent to streams

that have flooded (Kagan 1986). In addition, this taxon does not

compete well with encroaching weedy vegetation such as Dipsacus

sylvestris (teasel) (Davis and Youtie 1995).

Previous Federal Action

Federal government actions on the plant 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 included Thelypodium howellii var. spectabilis as

a threatened species. 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 are now found in

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

status of the plant taxa named therein. The July 1, 1975, notice

included the above taxon. 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, publication.

Thelypodium howellii var. spectabilis was not included in the June 16,

1976, Federal Register document.

The Service published an updated notice of review for plants on

December 15, 1980 (45 FR 82480). This notice included Thelypodium

howellii var. spectabilis as a candidate. This designation for T.

howellii var. spectabilis was retained in the November 28, 1983,

supplement to the Notice of Review (48 FR 53640), as well as subsequent

revisions on September 27, 1985 (50 FR 39526), February 21, 1990 (55 FR

6184), and September 30, 1993 (50 FR 51143).

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

findings on pending petitions that present substantial information

indicating the petitioned action may be warranted 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 Thelypodium

howellii var. spectabilis, because the 1975 Smithsonian report had been

accepted as a petition. On October 13, 1983, the Service found that the

petitioned listing of the 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). Such a finding requires the Service to consider the

petition as having been resubmitted on the date of the finding,

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

annually in October of 1983 through 1996. Publication of this proposal

constitutes the final finding for the petitioned action.

The processing of this proposed rule conforms with the Service's

final listing priority guidance published in the Federal Register on

December 6, 1996 (61 FR 64475). The Service announced an extension of

this guidance on October 23, 1997 (62 FR 55268), indicating that the

1997 guidance will remain in effect until final guidance for fiscal

year 1998 is published in the Federal Register. The guidance clarifies

the order in which the Service will process rulemakings. The guidance

calls for giving highest priority to handling emergency situations

(Tier 1), second highest priority (Tier 2) to resolving the listing

status of the outstanding proposed listings, and third priority (Tier

3) to new proposals to add species to the list of threatened and

endangered plants and animals. This proposed rule constitutes a Tier 3

action. Additionally, the Service stated in the guidance that

``effective April 1, 1997, the Service will concurrently undertake all

of the activities presently included in Tiers 1, 2, and 3.'' The

Service has begun implementing a more balanced listing program,

including processing more Tier 3 activities. The completion of this

Tier 3 activity (a proposal for a species with high-magnitude, imminent

threats) follows those guidelines.

Summary of Factors Affecting the Species

Section 4 of the Act and regulations (50 CFR part 424) issued 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). These factors and their

application to Thelypodium howellii ssp. spectabilis are as follows:

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

of Its Habitat or Range

Most of the habitat for Thelypodium howellii ssp. spectabilis has

been modified or lost to urban and agricultural development. Habitat

degradation at all remaining sites for this species is due to a

combination of livestock grazing, agricultural conversion, hydrological

modifications, and competition from non-native vegetation (see Factor

E). These activities have resulted in the extirpation of T. howellii

ssp. spectabilis from about half its former range in Baker, Union, and

Malheur counties. The type locality, historically known from Malheur

County, is considered to be extirpated due to past agricultural

development (Kagan 1986, ONHP 1997). Since 1990, at least 40 percent of

sites sampled in the town of North Powder, previously containing T.

howellii ssp. spectabilis, have been extirpated (Robinson, in litt.

1996). These sites were all located within areas subjected to grazing.

Grazing, exotic species, and agricultural activities continue to

threaten at least 85 percent of the remaining habitat for this species

(Table 1).

Table 1.--Summary of Threats

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Site (Population) Hectares (Acres) Number plants Ownership Threats

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Clover Creek.................... 15.9 (39.2) 300 (Kagan 1986)... Private........... Livestock grazing,

herbicides.

North Powder 2 (North Powder)... 0.9 (2.3) 16,000 (Salzer, in Private........... Non-native

litt. 1996). vegetation.

Miles easement (North Powder)... 16.8 (41.4) greater than 2,500 Private (conserv. Livestock grazing,

(Robinson, in easement). hydrologic

litt. 1996). modifications.

Hot Creek east of I-85 (North 0.24 (0.59) 12 (Kagan, pers. Private (ODOT 1).. Naturally

Powder). comm., 1995). occurring events.

Hot Creek North (North Powder).. 0.01 (0.03) 10 (Robinson, in Private........... Livestock grazing,

litt. 1996). naturally

occurring events.

Powder River (North Powder)..... 0.03 (0.07) 100 (Robinson, in Private (ODOT).... Livestock grazing.

litt. 1996).

Haines Rodeo (Haines)........... 4.3 (10.6) 10,000 (Kagan 1986) Private (ODOT).... Urbanization,

mowing.

Haines water tower (Haines).... 0.4 (1.0) Greater than 1,000 Unknown (private). Urbanization.

(Robinson, in

litt. 1996).

Haines 4th and Olson (Haines)... 0.1. (0.3) Not Available...... Private........... Urbanization.

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Baker City North................ 0.03 (0.08) 40 (Kagan, pers. Private........... Agricultural

comm., 1995). conversion,

herbicides.

Pocahontas Road................. 0.7 (1.8) 1,500 (Kagan 1986). Private........... Livestock grazing,

weeds.

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1 Oregon Department of Transportation easement.

In 1994, a large section of habitat formally occupied by

Thelypodium howellii ssp. spectabilis at the Haines rodeo grounds was

destroyed when a parking lot was constructed. Within the City of

Haines, all remaining habitat containing T. howellii ssp. spectabilis

is being impacted by residential construction, trampling, and other

activities. Urbanization represents a major threat for this species

within the city limits of Haines.

Thelypodium howellii ssp. spectabilis is threatened by changes in

hydrology related primarily to historic and current land uses such as

agricultural conversion and flood control. Modifying the intensity and

frequency of flooding events and soil moisture levels can significantly

alter plant habitat suitability. If moisture levels stay high later in

the spring or summer, species such as sedges and rushes will out

compete T. howellii ssp. spectabilis; if the soil becomes too saline,

Distichlis will out grow T. howellii ssp. spectabilis (Davis and Youtie

1995). Irrigation practices in the vicinity of T. howellii ssp.

spectabilis habitat tend to increase soil moisture levels and can also

increase soil salinity (Davis and Youtie 1995), making the habitat less

suitable for this plant. Hydrological modifications have been observed

in at least two sites containing this taxon in the vicinity of North

Powder (Davis and Youtie 1995, Robinson in litt. 1996). In addition, it

is likely that natural hydrologic processes have been altered at all of

the existing sites due to surrounding land uses including agriculture

and residential/urban development.

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

The plant is not a source for human food, nor of commercial

horticulture interest. Therefore, this is not a factor to be considered

in the listing decision at this time.

C. Disease or Predation

Thelypodium howellii ssp. spectabilis is palatable to livestock

(Kagan 1986, Davis and Youtie 1995). Cattle directly consume and

trample individual plants (Kagan 1986). Native herbivores (e.g., deer

and elk) likely consume T. howellii ssp. spectabilis plants; however,

there is little evidence to suggest that herbivory by native ungulates

currently poses a significant threat to this taxon (Kagan 1986).

Livestock grazing can negatively impact habitat and contribute to

reduced reproduction of this species (ONHP 1997). In particular, spring

and early summer grazing adversely affects reproduction for Thelypodium

howellii ssp. spectabilis by removing flowers and/or fruits, and

individual plants get trampled during their period of active growth

(generally from May through July).

In July 1995, Berta Youtie (plant ecologist, The Nature

Conservancy) and Andrew Robinson (botanist, FWS, Oregon State Office)

found that cattle had consumed all Thelypodium howellii ssp.

spectabilis plants that were present within a pasture at Clover Creek;

plants were only observed in an adjacent area that was not subject to

grazing. The Clover Creek site (15.9 ha (39.2 ac)) supports the second

largest remaining plant habitat area.

At another site, intentionally not grazed for the last 5 years,

Thelypodium howellii ssp. spectabilis plants have expanded into

previously unoccupied areas. Areas that were previously heavily grazed

now contain higher densities and larger plants than marginal refugia

habitat beneath Sarcobatus (Robinson, in litt. 1996). However, this

site, while under a permanent conservation easement, has been subjected

to trespass grazing on at least two occasions during the past 2 years

(A. Robinson, pers. comm., 1997).

The Service is not opposed to grazing when best management

practices are used, and maintains that best grazing management

practices may be compatible with natural resource objectives under

certain circumstances. Depending on site conditions, appropriate

grazing practices during certain times of the year may not necessarily

be detrimental to populations of Thelypodium howellii ssp. spectabilis.

For example, winter grazing of light to moderate intensity, when

managed to prevent erosion and trampling impacts, may be compatible

with the maintenance of Thelypodium habitat. However, because the plant

is very palatable to livestock, grazing during the active growing

season (typically spring, summer, and possibly fall) can adversely

impact this species.

D. The Inadequacy of Existing Regulatory Mechanisms

Thelypodium howellii ssp. spectabilis is listed as endangered by

the State of Oregon (Oregon Department of Agriculture). However, the

State Endangered Species Act does not provide protection for species on

private land. Therefore, under State law any plant protection is at the

discretion of the landowner.

The Oregon Department of Transportation (ODOT) currently considers

potential impacts to Thelypodium howellii ssp. spectabilis in their

road maintenance activities where it occurs at three sites that are

partially within ODOT rights-of-way. However, two of these sites are

small, less than 0.4 ha (1 ac) in size, and the third site (at Haines

rodeo ground) is threatened by activities that are not controlled by

ODOT.

Thelypodium howellii ssp. spectabilis could potentially be affected

by projects requiring a permit under section 404 of the Clean Water

Act. Under section 404, the U.S. Army Corps of Engineers (Corps)

regulates the discharge of fill material into waters of the United

States including navigable and isolated waterbodies, headwaters, and

adjacent wetlands. Section 404 regulations require applicants to obtain

an individual permit to place fill for projects affecting greater than

4 ha (10 ac) of water. Projects can qualify for authorization under

Nationwide Permit 26 (NWP 26) if the discharge does not cause the loss

of more than 1 ha (3 ac) of water or cause the loss of water for a

distance greater than 152 m (500 linear ft) of stream bed. Projects

that qualify for authorization under NWP 26 may proceed without prior

notification to the Corps if the discharge would cause the loss of less

than .12 ha (1/3 ac) of water (33 CFR Sec. 330. App. A 26b.).

Evaluation of impacts of such projects by the resource agencies though

the section

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404 process is thus not an option. Corps Division and District

Engineers may require that an individual section 404 permit be obtained

if projects otherwise qualifying under NWP 26 would cause greater than

minimal individual or cumulative environmental impacts. Corps

regulations implementing the Clean Water Act require withholding

authorization under NWP 26 if the existence of a listed endangered or

threatened species would be jeopardized, regardless of the significance

of the affected wetland resources (33 CFR Sec. 330.4 (f)). Candidate

species receive no special consideration. Thus, this taxon currently

receives insufficient protection under the Clean Water Act.

The Oregon Department of Fish and Wildlife (ODFW) currently is

designated as the easement manager of a wildlife area that contains

Thelypodium howellii ssp. spectabilis (Conservation Easement 1991). The

conservation easement was established by the Farm Service Agency to

protect a large wetland complex and related resources. However, a

preliminary draft management plan (ODFW 1996) for this site does not

adequately provide for the long-term maintenance of the plant and there

is uncertainty about the willingness of ODFW to manage the property (J.

Lauman, ODFW, in litt. 1996). The final management plan may better

address concerns regarding the viability of this species (e.g.,

potential hydrological modifications of existing habitat), but

development of the final plan has not yet been initiated. In addition,

although this site is under a conservation easement, trespass grazing

by cattle has occurred on at least two occasions in the last 2 years

and continues to threaten T. howellii ssp. spectabilis habitat onsite.

One Thelypodium howellii ssp. spectabilis site had a plant

protection agreement between the landowner and The Nature Conservancy.

However, the agreement has expired and the amount of occupied habitat

(less than 0.5 ha (1 ac)) onsite is not expected to provide for the

long-term viability of the species in the absence of intensive

management (B. Youtie, The Nature Conservancy, pers. comm., 1997).

E. Other Natural or Manmade Factors Affecting its Continued Existence

Mowing of Thelypodium howellii ssp. spectabilis habitat at the

Haines rodeo ground typically occurs annually, and can impact this

species if performed during the growing season prior to seed set.

Historically, annual rodeos were held in July; however, in 1995 an

additional spring rodeo was held in May. Mowing to prepare for the

spring rodeo occurs prior to seed set, and if this practice continues,

it will adversely affect reproduction of the plant. The Haines rodeo

ground currently supports the third largest habitat area for T.

howellii ssp. spectabilis.

Competition from nonnative plant species including Dipsacus

sylvestris (teasel), Cirsium vulgare (bull thistle), C. canadensis

(Canada thistle), and Melilotus officinalis (yellow sweet clover) also

threatens the long-term survival of Thelypodium howellii ssp.

spectabilis (Davis and Youtie 1995). The rapid expansion of D.

sylvestris is considered to be a significant threat to this species

(Larkin and Salzer 1992). At several sites, the formerly mesic meadow

communities containing Sarcobatus (greasewood) and T. howellii ssp.

spectabilis have largely been replaced by nonnative species.

At least two sites containing Thelypodium howellii ssp. spectabilis

are directly adjacent to fields where crops such as wheat and barley

are produced. The use of dicot-specific herbicides in these areas

threatens T. howellii ssp. spectabilis when overspraying occurs (J.

Kagan, plant ecologist, Oregon Natural Heritage Program, pers. comm.,

1997). One of these sites (Clover Creek) currently contains the second

largest habitat area for this species.

Because most populations of this species are small and existing

habitat is fragmented by agricultural conversion, grazing, roads, and

urbanization, naturally occurring events, such as drought, represent

threats to the continued existence of this species. Of the 11 sites for

this species, over half (54 percent) are 0.4 ha (1 ac) or less. Only

three sites are larger than 4 ha (10 ac).

Grazing by livestock tends to fragment Thelypodium howellii ssp.

spectabilis populations by reducing the density of plants in openings,

and restricting individuals to protected sites (e.g., beneath

Sarcobatus plants or spiny shrubs) (Kagan 1986, Robinson, in litt.

1996). Such habitat fragmentation also severely restricts the potential

for plant population expansion. Most known populations of T. howellii

ssp. spectabilis contain a low number of individual plants and/or are

limited geographically so that their future survival may depend on

recovery actions such as restoring degraded habitat areas and removing

competing non-native vegetation.

The Service has carefully assessed the best scientific and

commercial information available regarding the past, present, and

future threats faced by the species in determining to propose this

rule. Most of the remaining sites that support Thelypodium howellii

ssp. spectabilis are small and fragmented, and all existing sites are

vulnerable to impacts from grazing in addition to urban and

agricultural development. One site is under a permanent conservation

easement, although management of this site has not been completely

effective at maintaining T. howellii ssp. spectabilis habitat in the

past. The Service is currently working with the easement manager to

better address management of the plant habitat at this site including

construction of more than 6 km (4 mi) of fence to protect the habitat

from livestock grazing.

Because it is possible that grazing can be managed in a manner that

will not adversely affect habitat for Thelypodium howellii ssp.

spectabilis, and the site containing the largest habitat area for this

taxon is subject to a permanent conservation easement, we have

determined that this species is not immediately threatened with

extinction. However, if population declines continue, and threats are

not adequately addressed, this species could be threatened with

extinction in the foreseeable future. Based on this evaluation, the

preferred action is to list T. howellii ssp. spectabilis as threatened.

For reasons discussed below, critical habitat is not being proposed at

this time.

Critical Habitat

Critical habitat is defined in section 3(5)(A) 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 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

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 listed. The Service finds that designation of critical

habitat is not prudent for Thelypodium howellii ssp. spectabilis.

Service regulations (50 CFR 424.12 (a)(1)) state that designation of

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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.

Critical habitat designation for Thelypodium howellii ssp.

spectabilis is not prudent because both of the above described

situations exist. Although this biennial plant is not of horticultural

interest, the listing in and of itself contributes to a certain level

of risk from over-collection. This is because listing acknowledges the

rarity of a species, which then creates a certain level of demand by

collectors. Designating critical habitat, including the required

disclosure of precise maps and descriptions of critical habitat, would

further advertize the rarity of this plant and provide a road map to

occupied sites causing even greater threat to T. howellii ssp.

spectabilis from vandalism, trampling or unauthorized collection (M.

Steenson, Portland Nursery Inc., pers. comm. 1997). Disseminating

specific, sensitive location records can encourage plant poaching (M.

Bosch, U.S. Forest Service, pers. comm. 1997). Easily accessible

roadside populations with few individuals would be particularly

susceptible to indiscriminate collection by persons interested in rare

plants. Plants, unlike most animal species protected under the Act, are

particularly vulnerable to trespass because of their inability to

escape when collectors arrive.

Critical habitat designation for Thelypodium howellii ssp.

spectabilis is also not prudent due to lack of benefit because such

designation provides protection only on Federal lands or on private

lands when there is Federal involvement through authorization or

funding of, or participation in, a project or activity. All known

occurrences of this plant are on private land, and activities

constituting threats to the species, (see factors A through E in

``Summary of Factors Affecting the Species'') including grazing,

agricultural and urban development, alterations of wetland hydrology

and competition from non-native vegetation are, for the most part, not

subject to section 7 consultation. Although there may occasionally be a

Federal nexus for T. howellii ssp. spectabilis through regulation of

wetland fill and removal activities under the Clean Water Act, the

designation of critical habitat for this plant would provide no benefit

beyond that provided by listing. For example, the plant is restricted

to 11 known sites (seven less than an acre in size) in unique moist

alkaline meadow habitat located in valley bottoms, and any action that

would adversely modify habitat at these sites also would likely

jeopardize the continued existence of the species because the

biological threshold for triggering either determination would be the

same. In view of the limited habitat, the loss of any of the 11 sites

from Corps regulated wetland fill activities would likely result in the

adverse modification and jeopardy conclusion. Even as T. howellii ssp.

spectabilis recovers and the known occupied sites totaling

approximately 40 hectares (100 acres) increase as a result of

management activities, this would hold true because the adverse

modification and jeopardy thresholds would remain the same. Thus, in

this case, the prohibition on adverse modification would provide no

benefit beyond that provided by the prohibition on jeopardy. The

designation of critical habitat, therefore, would not provide

additional benefit for the species.

Moreover, if sometime in the future there is additional Federal

involvement through permitting or funding, such as through

Environmental Protection Agency, Federal Housing and Farm Service

Agency or Federal Highway Administration action, critical habitat

designation would not provide any added benefit to the species. Federal

involvement, where it does occur, can be identified without the

designation of critical habitat because interagency coordination

requirements (e.g. Fish and Wildlife Coordination Act) are already in

place. Designating critical habitat would not create a management plan

for the plant, or establish numerical population goals for long-term

survival of the species nor directly affect areas not designated as

critical habitat. Protection of this plant will most effectively be

addressed through the recovery process and the jeopardy prohibition of

section 7.

The Service acknowledges that critical habitat designation, in some

situations, may provide some value to the species by identifying areas

important for species conservation and calling attention to those areas

in special need of protection. Critical habitat designation of suitable

unoccupied habitat may also benefit this species by alerting permitting

agencies to potential sites for reintroduction and allow them the

opportunity to evaluate proposals that may affect these areas. However,

in this case, the few existing sites of Thelypodium howellii ssp.

spectabilis are known by the private landowners and, if future

management actions include unoccupied habitat, any benefit provided by

designation of such habitat as critical will be accomplished more

effectively and efficiently with the current coordination process.

The Service is currently working with involved agencies and

landowners to periodically survey and monitor Thelypodium howellii ssp.

spectabilis population status and develop plant management strategies.

All involved parties and landowners have been notified of the

importance of protecting the habitat of the remaining populations of T.

howellii ssp. spectabilis and plant protection agreements for some

sites are in place. The Nature Conservancy is close to completing a

conservation easement for protecting plant habitat in Baker County

(Pocahontas Road site 14417 G 8-6:J13F) (A. Robinson, pers. comm.

1997). The livestock grazing threat is being addressed by working

directly with the landowners to adjust seasonal use and through fence

construction to limit livestock trespass. The plant is palatable to

livestock and grazing occurring April through July can be detrimental

to annual seed production; grazing in other times of year has little

direct effect (Davis and Youtie 1995). Altered grazing practices can

only be achieved through voluntary efforts of landowners. Designation

of critical habitat would not change grazing practices.

In addition to cooperative efforts between the Service and

landowners, other governmental agencies offer opportunities to protect

Thelypodium howellii ssp. spectabilis. All known locations of T.

howellii ssp. spectabilis along road sides have been inconspicuously

marked so Oregon State Highway Department crews can avoid destruction

of plants during highway maintenance activities (A. Robinson, pers.

comm. 1997). The Department of Agriculture, through its Wildlife

Habitat Incentive Program offers funding to landowners which can be

used to protect endangered plants, including T. howellii ssp.

spectabilis (62 FR 49357). In view of ongoing actions and the lack of

regulatory authority provided by designation of critical habitat,

conservation and protection of the plant will be accomplished more

effectively through procedures other than critical habitat designation.

In conclusion, the designation of critical habitat for Thelypodium

howellii ssp. spectabilis is not prudent because such designation would

increase the degree of threat and would not be beneficial to the

species.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

[[Page 1953]]

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. Without the elevated profile that Federal listing

affords, little likelihood exists that any additional conservation

activities would be undertaken. The Act provides for possible land

acquisition and cooperation with the State and requires that recovery

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

of Federal agencies and the prohibitions against certain activities

involving listed plants are discussed, in part, below.

Section 7(a) of the Act 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 proposed species or result in destruction or adverse

modification of proposed critical habitat. If a species is listed

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

activities they authorize, fund, or carry out are not likely to

jeopardize the continued existence of such a species or to destroy or

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

listed species or its critical habitat, the responsible Federal agency

must enter into formal consultation with the Service.

Federal agencies that may have involvement with Thelypodium

howellii ssp. spectabilis through section 7 include the U.S. Army Corps

of Engineers and the Environmental Protection Agency through their

permit authority under section 404 of the Clean Water Act. The Federal

Housing Administration and Farm Service Agency may be affected through

potential funding of housing and farm loans where this species or its

habitat occurs. Highway construction and maintenance projects that

receive funding from the Department of Transportation (Federal Highways

Administration) will also be subject to review under section 7 of the

Act.

Listing Thelypodium howellii ssp. spectabilis would provide for

development of a recovery plan for the plant. A recovery plan would

bring together private, State, and Federal efforts for conservation of

this species. 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 and estimate costs of

various tasks necessary to accomplish them. The plan would also

describe site-specific management actions necessary to achieve

conservation and survival of the species. Additionally, pursuant to

section 6 of the Act, the Service would be able to grant funds to an

affected State such as Oregon for management actions promoting the

protection and recovery of T. howellii ssp. spectabilis. Because all of

the known location sites are on private land, the Service will pursue

conservation easements and conservation agreements to help maintain

and/or enhance habitat for the plant.

The Act and its implementing regulations set forth a series of

general prohibitions and exceptions that apply to all threatened

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

50 CFR 17.71 for threatened plants, apply. These prohibitions, with

respect to any endangered or threatened species of plants, in part,

make it illegal for any person subject to the jurisdiction of the

United States to import or export, transport or ship 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. Seeds from

cultivated specimens of threatened plant taxa are exempt from these

prohibitions provided that a statement ``Of Cultivated Origin'' appears

on the shipping containers. Certain exceptions to the prohibitions

apply to agents of the Service and State conservation agencies.

The Act and 50 CFR 17.72 also provide for the issuance of permits

to carry out otherwise prohibited activities involving threatened plant

species under certain circumstances. Such permits are available for

scientific purposes and to enhance the propagation or survival of the

species. For threatened plants, permits also are available for

botanical or horticultural exhibition, educational purposes, or special

purposes consistent with the purposes of the Act. The Service

anticipates few trade permits would ever be sought or issued for the

species because the plant is not common in cultivation or in the wild.

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 effects of

the listing on proposed and ongoing activities within the species'

range. Collection, damage or destruction of this species on Federal

land is prohibited, although in appropriate cases a Federal permit

could be issued to allow collection for scientific or recovery

purposes. However, Thelypodium howellii ssp. spectabilis is not known

to occur on public (Federal) lands.

Activities that are unlikely to violate section 9 include livestock

grazing, construction or maintenance of fences and livestock water

facilities, clearing a defensible space for fire protection around

one's personal residence, and landscaping, including irrigation around

one's personal residence. 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.

Questions regarding whether specific activities may constitute a

violation of section 9 should be directed to the Field Supervisor of

the Snake River Basin Office (see ADDRESSES section). Requests for

copies of the regulations on listed plants and inquiries regarding them

may be addressed to the U.S. Fish and Wildlife Service, Ecological

Services, Permits Branch, 911 NE 11th Ave., Portland, Oregon 97232-4181

(503/231-6241).

Public Comments Solicited

The Service intends that any final action resulting from this

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

comments or suggestions from the public, other concerned governmental

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

party concerning this proposed rule are hereby solicited. Comments

particularly are sought concerning:

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

any threat (or lack thereof) to Thelypodium howellii ssp. spectabilis;

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

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

critical habitat as provided by section 4 of the Act;

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

population size of this species; and

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

possible impacts on this species.

[[Page 1954]]

Final promulgation of the regulation(s) on this species 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 hearing(s) 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 be addressed to the Field

Supervisor, U.S. Fish and Wildlife Service, Snake River Basin Office,

1387 S. Vinnell Way, Room 368, Boise, Idaho 83709.

National Environmental Policy Act

The Service has determined that an Environmental Assessment, as

defined under the authority of the National Environmental Policy Act of

1969, need not be prepared in connection with regulations adopted

pursuant to section 4(a) of the 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

Al-Shehbaz, I.A. 1973. The biosystematics of the genus Thelypodium.

Contr. Gray Herb. 204(93):115-117.

Antell, K.S. 1990. Howell's thelypody: a rare biennial mustard from

Oregon. Biology Department, Eastern Oregon State College, LaGrande,

Oregon.

Conservation Easement. 1991. Miles Wetland Property, located in

North Powder, Oregon.

Davis, J.S. and B. Youtie. 1995. Site information and analysis:

North Powder Thelypodium howellii ssp. spectabilis preserve.

Prepared for The Nature Conservancy, Oregon Field Office, Portland,

Oregon.

Greenleaf, J. 1980. Status report for Thelypodium howellii Wats ssp.

spectabilis (Peck) Al-Shehbaz.

Kagan, J.S. 1986. Status report for Thelypodium howellii ssp.

spectabilis. Oregon Natural Heritage Data Base, Portland, Oregon.

Larkin, G. and D. Salzer. 1992. A plant demography study of

Delphinium leucocephalum, Thelypodium howellii ssp. spectabilis,

Astragalus applegatei, and Lilium occidentale: preliminary report

1990-1991. Prepared for The Nature Conservancy, Oregon Field Office,

Portland, Oregon.

Oregon Department of Fish and Wildlife. 1996. Miles wetlands five-

year action plan: 1997-2002. Prepared for the U.S. Fish and Wildlife

Service.

Oregon Natural Heritage Program. 1997. Element occurrence records

for Thelypodium howellii ssp. spectabilis.

Peck, M. 1932. New species from Oregon. Torreya 32:150.

Author

The primary authors of this proposed rule are Edna Rey-Vizgirdas,

U.S. Fish and Wildlife Service, Snake River Basin Office (see ADDRESSES

section); telephone 208/378-5243 and Andrew F. Robinson, Jr., U.S. Fish

and Wildlife Service, Oregon State Office; telephone 503/231-6179.

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 section 17.12(h) by adding the following, in alphabetical

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

Plants:

Sec. 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

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Species

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

Scientific name Common name habitat

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

Flowering Plants

* * * * * * *

Thelypodium howellii ssp. Howell's U.S.A. (OR)...... Brassicaceae..... T .............. NA NA

spectabilis. spectacular

thelypody.

* * * * * * *

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Dated: December 29, 1997.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 98-782 Filed 1-12-98; 8:45 am]

BILLING CODE 4310-55-P