Endangered and Threatened Wildlife and Plants; 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; Threatened Status

for the Plant Thelypodium howellii ssp. spectabilis (Howell's

spectacular thelypody)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service) determine

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

amended (Act), for Thelypodium howellii ssp. spectabilis (Howell's

spectacular thelypody). 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 rule implements the Federal

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

EFFECTIVE DATE: June 25, 1999.

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

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

Fish and Wildlife Service, Snake River Basin Office, 1387 S. Vinnell

Way, Room 368, Boise, Idaho 83709.

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 currently 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). Plants at the type locality in Malheur County have not been

relocated since 1927 and are 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.

Due to its relatively low elevation and rich soils, agriculture is

the primary land use in the Baker-Powder River Valley region, which

contains the 11 extant T. howellii ssp. spectabilis sites. 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 recently discovered sites

containing T. howellii ssp. spectabilis are located near the

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

howellii ssp. spectabilis population contains five sites; the largest

is subject to a conservation easement (16.8 ha (41.4 ac)). Until

recently, one site near the town of North Powder, less than 0.8 ha (2.3

ac) in size, had a plant protection agreement between the landowner and

The Nature Conservancy. The Haines plant population currently consists

of three small sites located in or near the town of Haines. Since the

publication of the proposed rule, an additional site in Haines was

identified (B. Russell, consultant, in litt. 1998) and one previously

known site in Haines was apparently extirpated by development (P.

Brooks, Forest Service, in litt. 1998). 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) 1998).

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, their habitats do

not overlap (Kagan 1986). For purposes of this final rule, 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-

deposited alkaline clays mixed with recent alluvial 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

[[Page 28394]]

encroaching weedy vegetation such as Dipsacus sylvestris (teasel)

(Davis and Youtie 1995).

Previous Federal Action

Federal government actions for the plant began as a result of

section 12 of the Endangered Species Act of 1973, (Act) as amended (16

U.S.C. 1531 et seq.), 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. We published a notice in the July 1, 1975,

Federal Register (40 FR 27823) of our acceptance of the Smithsonian

Institution report as a petition within the context of section 4(c)(2)

(petition provisions are now found in section 4(b)(3) of the Act) and

our 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, we 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. Thelypodium howellii var.

spectabilis was not included in the June 16, 1976, Federal Register

document.

We published an updated notice of review for plants on December 15,

1980 (45 FR 82480). This notice included Thelypodium howellii var.

spectabilis as a category 1 candidate. Category 1 candidates were those

for which the Service had sufficient information on biological

vulnerability and threats to support proposals to list them as

endangered or threatened species. 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). Upon publication of the February 28,

1996 Notice of Review (61 FR 7596), we ceased using category

designations and included T. howellii var. spectabilis as a candidate

species. Candidate species are those for which the Service has on file

sufficient information on biological vulnerability and threats to

support proposals to list the species as threatened or endangered.

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

findings on pending petitions 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, we 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 us to consider the petition as

having been resubmitted, pursuant to section 4(b)(3)(C)(I) of the Act.

The finding was reviewed annually in October of 1983 through 1996.

On January 13, 1998 (63 FR 1948), we published a proposal to list

Thelypodium howellii ssp. spectabilis as a threatened species. We now

determine T. howellii ssp. spectabilis to be a threatened species with

the publication of this final rule.

The processing of this final rule conforms with our Listing

Priority Guidance published in the Federal Register on May 8, 1998 (63

FR 25502). The guidance clarifies the order in which we will process

rulemakings. Highest priority is processing emergency listing rules for

any species determined to face a significant and imminent risk to its

well being (Tier 1). Second priority (Tier 2) is processing final

determinations on proposed additions to the lists of endangered and

threatened wildlife and plants; the processing of new proposals to add

species to the lists; the processing of administrative petition

findings to add species to the lists, delist species, or reclassify

listed species (petitions filed under section 4 of the Act); and a

limited number of delisting and reclassifying actions. Processing of

proposed or final designations of critical habitat is accorded the

lowest priority (Tier 3). This final rule is a Tier 2 action and is

being completed in accordance with the current Listing Priority

Guidance. We have updated this rule to reflect any changes in

information concerning distribution, status and threats since the

publication of the proposed rule.

Summary of Comments and Recommendations

In the January 13, 1998, proposed rule (63 FR 1948) and associated

notifications, all interested parties were requested to submit factual

reports or information that might contribute to the development of a

final rule. The comment period was approximately three months long and

closed on April 20, 1998. Appropriate State agencies, County

governments, Federal agencies, scientific organizations, and other

interested parties were contacted and requested to comment. A request

for a public hearing was received from Rod Dowse of the Oregon

Cattlemen's Association. On March 5, 1998, we published a notice in the

Federal Register (63 FR 10817) announcing the public hearing and the

extension of the public comment period until April 20, 1998. A notice

announcing the public hearing and proposal was published in the Baker

City Herald on February 24, 1998. We conducted a public hearing on

April 9, 1998, at the Geiser Grand Hotel in Baker City, Oregon.

Testimony was taken from 6 p.m. to 8 p.m. Four parties provided

testimony.

During the public comment period, we received written and oral

comments from ten parties. Four commenters expressed support for the

listing proposal, three commenters opposed the proposal, and three were

neutral. Written comments and oral statements obtained during the

public hearing and comment period are combined in the following

discussion. Opposing comments and other comments questioning the rule

were organized into specific issues. These issues and our response to

each are summarized as follows:

Issue 1: The Service should conduct additional surveys for

Thelypodium howellii ssp. spectabilis in Baker, Union, and Malheur

counties to clarify its distribution and abundance. A few commenters

believed that T. howellii ssp. spectabilis may be more widespread, and

that further surveys were needed before listing.

Service response: We used information provided by the Oregon

Natural Heritage Program and other knowledgeable botanists to evaluate

the status of T. howellii ssp. spectabilis. Information from botanical

collections that date from the 1920's was also utilized in the

preparation of the proposed rule. The type locality in Malheur County

has been resurveyed by numerous botanists over the past two decades,

and T. howellii ssp. spectabilis has not been relocated. Recent surveys

in Malheur County conducted by staff

[[Page 28395]]

from the Service (E. Rey-Vizgirdas, Service botanist, in litt. 1998)

and Bureau of Land Management (J. Findlay, Bureau of Land Management,

pers. comm. 1998) have also failed to locate additional sites or

populations.

Only one commenter provided information on a T. howellii ssp.

spectabilis site that was not specifically mentioned in the proposed

rule (B. Russell, in litt. 1998). This site, located on private land in

Haines, Oregon, is within \1/2\ mile of other sites containing this

species and is subject to similar threats as the populations discussed

in the proposed rule. Although T. howellii ssp. spectabilis populations

vary in size from year to year and new populations may be found in the

future, similar threats are likely to apply to any newly discovered

populations. In summary, no data were provided to substantiate the

claim that T. howellii ssp. spectabilis is more widespread than

previously described in the proposed rule.

Issue 2: Several commenters believed that more information was

needed on the life history of T. howellii ssp. spectabilis. Some asked

for further clarification on its habitat and growth requirements. One

commenter claimed that this taxon may be a weed, similar to other

noxious weeds in the mustard family. Another asked whether T. howellii

ssp. spectabilis could be transplanted or propagated.

Service response: Although several widespread members of the

mustard family such as whitetop (Cardaria draba), blue mustard

(Chorispora tenella), and tumble mustard (Sisymbrium altissimum) are

considered to be noxious weeds, no species of Thelypodium are known to

be noxious weeds in the western United States (Whitson et al. 1996).

In some cases, transplanting or propagating rare plants is

essential to recovery. However, we believe that the protection of

existing habitat for T. howellii ssp. spectabilis is critical to the

long-term conservation of this species. We will consider the

feasibility of propagating individuals or establishing additional

populations of T. howellii ssp. spectabilis during the development of a

recovery plan for this species. Additional information on the life

history and growth requirements of T. howellii ssp. spectabilis also

will be gathered during the recovery process.

Issue 3: Several commenters questioned the effects of activities

such as grazing, altered hydrology, and agriculture on T. howellii ssp.

spectabilis. One commenter wondered if other plant species have

outcompeted T. howellii ssp. spectabilis in areas where hydrologic

conditions have changed. Another commenter stated that habitat for T.

howellii ssp. spectabilis has been highly altered by changes in natural

wetland hydrology, and that such hydrologic changes may not be

restorable. A few commenters stated that disturbance may actually be

beneficial for T. howellii ssp. spectabilis. One commenter believed

that grazing management is appropriate for habitat conditions in

eastern Oregon, and that grazing is not a threat to T. howellii ssp.

spectabilis. In addition, the effects of livestock on this taxon are

not well known. Some commenters stated that T. howellii ssp.

spectabilis is not threatened by agriculture because it occurs on land

not suitable for farming.

Service response: Only one population of T. howellii ssp.

spectabilis occurs on land that may be managed for the long-term

protection of this species (a permanent conservation easement on

private land near North Powder, Oregon). All remaining T. howellii ssp.

spectabilis sites in Baker and Union counties are subject to a variety

of threats including development, road construction projects and

maintenance, trampling, recreational activities, and the invasion of

exotic plant species.

The Service agrees that appropriate grazing management may be

suitable for maintaining general habitat conditions and forage species

in Baker and Union counties. However, the impact of livestock grazing

on rare plant species is influenced by factors including the season and

magnitude of grazing. In some cases, grazing effects can be neutral or

even beneficial if grazing is managed to minimize impacts such as

trampling or compaction. As described in the ``Summary of Factors

Affecting the Species'' section, we believe that grazing of T. howellii

ssp. spectabilis during the active growing season can adversely impact

the reproduction of this species. Reproduction by seed is necessary for

the survival of annual and biennial plant species such as T. howellii

ssp. spectabilis. Because T. howellii ssp. spectabilis is palatable to

livestock, grazing in occupied habitat prior to seed maturation and

dispersal can result in lower seed set and fewer seedlings of T.

howellii ssp. spectabilis.

Changes in hydrology or soil conditions often result in changes in

the abundance and distribution of plant species. At several sites

containing T. howellii ssp. spectabilis near Baker City and North

Powder, T. howellii ssp. spectabilis plants are located adjacent to,

but not within areas dominated by wetland plant species such as

cattails (Typha spp.), sedges (Carex spp.), water hemlock (Cicuta

douglasii), and teasel (Dipsacus sylvestris). Although it is not known

whether these species have actually displaced T. howellii ssp.

spectabilis, it is unlikely that T. howellii ssp. spectabilis can

persist in areas where the hydrologic conditions are not favorable or

in areas dominated by exotic species.

Although remaining sites supporting T. howellii ssp. spectabilis

may not be directly threatened by agricultural conversion, indirect

effects of agriculture include habitat fragmentation, changes in local

hydrologic conditions, and the use of herbicides and pesticides (which

may impact pollinator populations). Because all known T. howellii ssp.

spectabilis sites have been invaded at least to some extent by noxious

weeds such as teasel and thistles (Cirsium spp.). As a result, T.

howellii ssp. spectabilis is particularly vulnerable to herbicide use.

Issue 4: One commenter questioned the accuracy of population data

for T. howellii ssp. spectabilis presented in the proposed rule, and

further believed that information based on ``ocular estimates'' of

population size should not be used.

Service response: We acknowledge that careful collection of

population data (e.g., numbers of plants and population trends) can be

useful to identify problems such as poor reproduction and lack of

recruitment of new individuals into the population. However, like most

annual plants, the population size of biennial plant species such as T.

howellii ssp. spectabilis can vary greatly from year to year. We do not

rely solely on population information, but consider threats to the

species as outlined under the ``Summary of Factors Affecting the

Species'' section of all proposed and final listing rules. These

factors are discussed in detail for this species in the ``Summary of

Factors Affecting the Species'' section of this final rule.

Issue 5: One commenter felt that T. howellii ssp. spectabilis

should be listed as endangered rather than threatened due to the

limited number of sites and threats to its habitat, and believed that

T. howellii ssp. spectabilis is not likely to persist in small habitat

areas. Another commenter stated that although the population of T.

howellii ssp. spectabilis fluctuates from year to year, eight T.

howellii ssp. spectabilis sites that have been monitored since the

1980's appear to be declining. Two commenters provided information

about a proposed race track development project near Haines, stating

that this project, if implemented, could damage habitat for T. howellii

ssp. spectabilis, and that the land may be zoned for industrial

purposes. One commenter provided information on a population of T.

[[Page 28396]]

howellii ssp. spectabilis in Haines that occurs directly adjacent to a

proposed highway improvement project. This commenter further stated

that, as of June 1997, at least two lots in Haines that contained T.

howellii ssp. spectabilis were for sale.

Service response: We acknowledge that T. howellii ssp. spectabilis

sites located within or adjacent to the City of Haines are threatened

by isolation, development, and other activities, as described in the

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

However, we believe that the site supporting the largest habitat

area (located near North Powder) can be managed for the long-term

protection of this species. In addition, at least three other sites

containing T. howellii ssp. spectabilis (including the second largest

habitat area at Clover Creek) are not currently threatened by

development. We will continue to work with willing landowners and

State, local, and Federal agencies to ensure that grazing and other

activities are managed to reduce impacts to this species and its

habitat. The species is not in imminent danger of extinction. Thus, the

listing as threatened rather than endangered is appropriate.

Issue 6: One commenter stated that T. howellii ssp. spectabilis

should not be listed because economic impacts have not been considered.

Service response: In accordance with 16 U.S.C., paragraph 1533

(b)(1)(A), 50 CFR 424.11(b), and section 4(b)(1)(A) of the Act, listing

decisions are made solely on the basis of the best available scientific

and commercial data. Economic impacts cannot be considered when

determining whether to list a species under the Act.

Issue 7: One commenter stated that the Service should not list T.

howellii ssp. spectabilis because it has no authority to list or

regulate species under the Act that are not involved in interstate

commerce. This commenter further believed that Federal listing for T.

howellii ssp. spectabilis is unnecessary since it would not confer

greater protection for this species than Oregon's Endangered Species

Act already provides.

Service response: The Federal government has the authority under

the Commerce Clause of the U.S. Constitution to protect this species

for the reasons given in Judge Wald's opinion and Judge Henderson's

concurring opinion in National Association of Home Builders v. Babbitt,

130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 1185 S. Ct. 2340 (1998).

That case involved a challenge to application of the Act prohibitions

to protect the listed Delhi Sands flower-loving fly. As with T.

howellii ssp. spectabilis, the Delhi Sands flower-loving fly is endemic

to only one state. Judge Wald held that application of the Act's

prohibitions against taking of endangered species to this fly was a

proper exercise of Commerce Clause power to regulate: (1) use of

channels of interstate commerce; and (2) activities substantially

affecting interstate commerce because it prevented loss of biodiversity

and destructive interstate competition. Judge Henderson upheld

protection of the fly because doing so prevents harm to the development

that is part of interstate commerce.

We believe that the Federal government has the authority under the

Property Clause of the Constitution to protect this species. While T.

howellii ssp. spectabilis is not known to occur on Federal land, it is

clear that the species is part of an ecosystem that includes Federal

lands. Baker and Union counties contain a significant amount of Federal

land administered by the U.S. Forest Service and the Bureau of Land

Management. Native species such as mule deer range widely across these

lands, and are known to graze on T. howellii ssp. spectabilis . The

courts have long recognized Federal authority under the Property Clause

to protect Federal resources in such circumstances. See, e.g., Kleppe

v. New Mexico, 429 U.S. 873 (1976); United States v. Alford, 274 U.S.

264 (1927); Camfield v. United States, 167 U.S. 518 (1897); United

States v. Lindsey, 595 F.2d 5 (9th Cir. 1979).

As for whether Federal listing of T. howellii ssp. spectabilis

would confer more protection than is already provided under Oregon law,

the inadequacy of the State law is discussed below in Section D of the

``Summary of Factors Affecting the Species'' section of this rule.

Peer Review

In accordance with interagency policy published on July 1, 1994 (59

FR 34270), we solicited the expert opinions of three independent

specialists regarding pertinent scientific or commercial data and

assumptions relating to the taxonomy, population status, and supportive

biological and ecological information for the taxon under consideration

for listing. The purpose of such review is to ensure that listing

decisions are based on scientifically sound data, assumptions, and

analyses, including input of appropriate experts and specialists. Two

scientists responded to our request for peer review of this listing

action. Both responders provided information which supported the

biological and ecological data presented in the proposed rule.

Summary of Factors Affecting the Species

Section 4 of the Endangered Species Act (16 U.S.C. 1533) and

regulations (50 CFR part 424) that implement the listing provisions of

the Act established 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 T. 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. Plants at the type locality in Malheur County are

considered to be extirpated due to past agricultural development (Kagan

1986, ONHP 1998). Since 1990, at least 40 percent of the sites sampled

in North Powder that previously contained T. howellii ssp. spectabilis

have been extirpated (A. Robinson, Service botanist, in litt. 1996).

These sites were all located within areas subjected to grazing.

Grazing, trampling, exotic species, and agricultural activities

continue to threaten virtually all remaining habitat for this species

(Table 1).

[[Page 28397]]

Table 1.--Summary of Threats

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

Hectares

Site (Population) (Acres) Number plants Ownership Threats

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

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

(39.2) herbicides.

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

(2.3) litt. 1996). vegetation.

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

(41.4) (Robinson, in litt. easement). hydrologic

1996). modifications.

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

Powder). (0.59) comm., 1995). events.

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

(0.03) litt. 1996). naturally occurring

events.

Powder River (North Powder)...... 0.03 100 (Robinson, in Private (ODOT \1\).. Livestock grazing.

(0.07) litt. 1996).

Haines rodeo (Haines)............ 4.3 June 1998: 10,000; Private (ODOT \1\).. Urbanization,

(10.6) July 1998: 300 (E. mowing.

Rey-Vizgirdas, in

litt. 1998).

Haines water tower (Haines)...... 0.4 200 to 300 (E. Rey- Unknown (private)... Urbanization.

(1.0) Vizgirdas, in litt.

1998).

Haines west (Haines)............. Not Not available....... Private............. Urbanization, road

available construction,

herbicides.

Haines 4th and Olson (Haines).... 0.1 700 to 800 (E. Rey- Private............. Possibly extirpated

(0.3) Vizgirdas, in litt. (Brooks, in litt.

1998). 1998)

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

(0.08) comm., 1995). conversion,

herbicides.

Pocahontas Road.................. 0.7 250 to 300 (E. Rey- Private............. Livestock grazing,

(1.8) Vizgirdas, in litt. non-native

1998). vegetation.

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

\1\ Oregon Department of Transportation Easement.

Within the City of Haines, all remaining habitat containing T.

howellii ssp. spectabilis is being impacted by residential

construction, trampling, and other activities. In 1994, a large section

of habitat formerly occupied by T. howellii ssp. spectabilis at the

Haines rodeo grounds was destroyed when a parking lot was constructed.

Although an estimated 5,000 to 10,000 T. howellii ssp. spectabilis

plants were present at the Haines rodeo grounds in late June 1998, the

majority of this population was subsequently impacted by the July 4 and

5 rodeo; the site was apparently mowed and used as a parking area

during the rodeo (E. Rey-Vizgirdas, in litt. 1998). Immediately after

the rodeo, fewer than 300 T. howellii ssp. spectabilis plants were

observed at the site. Most of these plants were found along the fence

line adjacent to the main road (outside the rodeo grounds). It is

possible that the T. howellii ssp. spectabilis population may recover

from this disturbance. However, it is unlikely that the entire

population was able to reproduce successfully prior to mowing since

most plants were in full bloom (without mature fruits) in late June (E.

Rey-Vizgirdas, in litt. 1998).

T. howellii ssp. spectabilis habitat within a proposed racing area

development project adjacent to the rodeo grounds, will likely be

impacted by the proposed project. However, since no specific T.

howellii ssp. spectabilis surveys have been completed for this project,

it is unclear how many T. howellii ssp. spectabilis plants will be

affected.

Another T. howellii ssp. spectabilis site in Haines, which

contained approximately 800 plants in June 1998 (E. Rey-Vizgirdas, in

litt. 1998), apparently was subsequently extirpated by residential

development (P. Brooks, in litt. 1998). 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 outcompete

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

Distichlis will outgrow 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 occurred 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 or of commercial

horticulture interest. Therefore, this is not a factor 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

(Odocoileus) and elk (Cervus)) 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 (Kagan 1986). In particular,

spring and early summer grazing adversely affects reproduction for T.

howellii ssp. spectabilis by removing flowers and/or

[[Page 28398]]

fruits, and individual plants get trampled during the period of active

growth (generally from May through July).

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

Conservancy) and Andrew Robinson (Service botanist, Oregon State

Office) found that cattle had consumed all T. 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 five years,

T. howellii ssp. spectabilis plants have expanded into areas previously

unoccupied. 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 three years (A.

Robinson, pers. comm., 1997).

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, in such cases, any plant

protection is at the discretion of the landowner.

The Oregon Department of Transportation (ODOT) currently considers

potential impacts to T. 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

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 water bodies, 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 waters of the U.S. Projects can qualify for

authorization under Nationwide Permit 26 (NWP 26) if the discharge does

not cause the loss of more than three acres of waters of the U.S. nor

cause the loss of waters of the U.S. for a distance greater than 500

linear feet 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 \1/3\ of an acre of waters

of the U.S. (33 CFR 330. App. A 26b.). Evaluation of impacts of such

projects by the resource agencies through the section 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 330.4 (f)).

The Oregon Department of Fish and Wildlife (ODFW) was previously

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 Services 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 ODFW

is withdrawing as easement manager (J. Lauman, ODFW, in litt. 1996; M.

Smith, Service biologist, Oregon State Office, pers. comm. 1998). A new

easement manager for the site has not been designated. Development of a

final management plan for the site, which may better address concerns

regarding the viability of this species (e.g., potential hydrological

modifications of existing habitat), 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

three years and continues to threaten T. howellii ssp. spectabilis

habitat onsite.

One T. 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., 1998).

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Mowing of T. 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. In some cases, mowing of T. howellii

ssp. spectabilis habitat for the July rodeo can reduce reproduction if

it occurs prior to seed set (see Factor A of this section). 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 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 T. 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, 6 (50 percent) are 0.4 ha (1 ac) or less. Only 3 sites

are larger than 4 ha (10 ac). Small, isolated parcels are vulnerable to

edge effects (i.e., invasion by exotic plant species, disturbances by

local residents) and are unlikely to contribute significantly to the

long-term preservation of this species.

Livestock grazing tends to fragment T. howellii ssp. spectabilis

populations by reducing the density of plants in

[[Page 28399]]

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 are

limited geographically so that future survival may depend on recovery

actions such as restoring degraded habitat areas and removing competing

nonnative vegetation.

We have carefully assessed the best scientific and commercial

information available regarding the past, present, and future threats

faced by this species in determining to issue this final rule. Most of

the remaining sites that support T. howellii ssp. spectabilis are small

and fragmented, and all existing sites are vulnerable to impacts from

grazing, trampling, and non-native vegetation 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. We are currently working to better address management of the

plant habitat at this site, which will include construction of fencing

to protect habitat from livestock grazing and to assist in noxious weed

control.

We have determined that listing as threatened rather than

endangered is appropriate for this species primarily because we believe

that grazing can be managed in a manner that will not adversely affect

habitat for T. howellii ssp. spectabilis, and the site containing the

largest habitat area for this taxon is subject to a permanent

conservation easement. In addition, the State and local weed management

agencies have initiated measures that afford some protection to T.

howellii ssp. spectabilis, such as identifying areas to be avoided by

herbicide application, and placing signs in the area. Based on this

evaluation, the preferred action is to list T. howellii ssp.

spectabilis as threatened. Alternatives to this action were considered

but not preferred because not listing this species would not provide

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

addition, listing this species as endangered would not be appropriate

because the State of Oregon and local management agencies have

decreased the danger of extinction of T. howellii ssp. spectabilis at

the present time. However, if population declines continue and threats

are not adequately addressed, this species could be threatened with

extinction in the foreseeable future. For reasons discussed below,

critical habitat is not being proposed at this time.

Critical Habitat

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

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

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

those physical or biological 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 the 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 as endangered or threatened. 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.

Section 7(a)(2) of the Act requires Federal agencies to consult

with the Service to ensure that any action authorized, funded, or

carried out by such agency, does not jeopardize the continued existence

of a federally listed species or does not destroy or adversely modify

designated critical habitat. The requirement that Federal agencies

refrain from contributing to the destruction or adverse modification of

critical habitat in any action authorized, funded or carried out by

such agency (agency action) is in addition to the section 7 prohibition

against jeopardizing the continued existence of a listed species, and

it is the only mandatory legal consequence of a critical habitat

designation. The Service's implementing regulations (50 CFR part 402)

define ``jeopardize the continuing existence of'' and ``destruction or

adverse modification of'' in very similar terms. To jeopardize the

continuing existence of a species means to engage in an action ``that

reasonably would be expected to reduce appreciably the likelihood of

both the survival and recovery of a listed species.'' Destruction or

adverse modification of habitat means an ``alteration that appreciably

diminishes the value of critical habitat for both the survival and

recovery of a listed species in the wild by reducing the reproduction,

numbers, or distribution of that species.''

Common to both definitions is an appreciable detrimental effect to

both the survival and recovery of a listed species. An action that

appreciably diminishes habitat for recovery and survival may also

jeopardize the continued existence of the species by reducing

reproduction, numbers, or distribution because negative impacts to such

habitat may reduce population numbers, decrease reproductive success,

or alter species distribution through habitat fragmentation.

For a listed plant species, an analysis to determine jeopardy under

section 7(a)(2) would take into consideration the loss of the species

associated with habitat impacts. Such an analysis would closely

parallel an analysis of habitat impacts conducted to determine adverse

modification of critical habitat. As a result, an action that results

in adverse modification also would almost certainly jeopardize the

continued existence of the species concerned. Because habitat

degradation and destruction is the primary threat to Thelypodium

howellii ssp. spectabilis, listing it will ensure that section 7

consultation occurs and potential impacts to the species and its

habitat are considered for any Federal action that may affect this

species. In many cases, listing also ensures that Federal agencies

consult with the Service even when Federal actions may affect

unoccupied suitable habitat where such habitat is essential to the

survival and recovery of the species. This is especially important for

plant species where consideration must be given to the seed bank

component of the species, which are not necessarily visible in the

habitat throughout the year. A significant portion of their vegetative

structure may not be in evidence during cursory surveys; occupancy of

suitable habitat can only be reliably determined during the growing

season. In practice, we consult with Federal agencies proposing

projects in areas where the species was known to recently occur or to

harbor known seed banks.

Apart from section 7, the Act provides no additional protection to

lands designated as critical habitat. Designating critical habitat does

not create a management plan for the areas where the listed species

occurs; does

[[Page 28400]]

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.

Critical habitat designation for Thelypodium howellii ssp.

spectabilis is not prudent because it would provide no additional

benefit on non-Federal lands beyond that provided by listing. T.

howellii ssp. spectabilis is known to occur only on private lands.

Critical habitat designation provides protection on non-Federal lands

or private lands only when there is Federal involvement through

authorization or funding of, or participation in, a project or activity

(Federal nexus). In other words, designation of critical habitat on

non-Federal lands does not compel or require the private or other non-

Federal landowner to undertake active management for the species or to

modify any activities in the absence of a Federal nexus. Because all

known occurrences of this plant are on private land, activities

constituting threats to the species (see ``Summary of Factors Affecting

the Species''), including grazing, agricultural and urban development,

alterations of wetland hydrology, and competition from non-native

vegetation, are generally not subject to section 7 consultation. Any

Federal involvement, if it does occur, will be addressed regardless of

whether critical habitat is designated because interagency coordination

requirements such as the Fish and Wildlife Coordination Act and section

7 of the Act are already in place. When T. howellii ssp. spectabilis is

listed, activities occurring on all lands subject to Federal

jurisdiction that may adversely affect these species would prompt the

requirement for section 7 consultation, regardless of whether critical

habitat has been designated. Although there may occasionally be a

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

wetland fill and removal activities regulated by the U.S. Corps through

section 404 of 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 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 for

this species, the loss of any of the 11 sites resulting from Corps

regulated wetland fill activities would likely result in a jeopardy

determination. 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.

While a designation of critical habitat on private lands would only

affect actions where a Federal nexus is present and would not confer

any additional benefit beyond that already provided by section 7

consultation; and because virtually any action that would result in an

adverse modification determination would also likely jeopardize the

species, a designation of critical habitat on private lands could

result in a detriment to the species. This is because the limited

effect of a critical habitat designation on private lands is often

misunderstood by private landowners whose property boundaries could be

included within a general description of critical habitat for a

specific species. Landowners may mistakenly believe that critical

habitat designation will be an obstacle to land use and development and

impose restrictions on their use of their property. In some cases,

members of the public may believe critical habitat designation to be an

attempt on the part of the government to confiscate their private

property. Unfortunately, inaccurate and misleading statements reported

through widely popular media available worldwide are the types of

misinformation that can and have led private landowners to believe that

critical habitat designations prohibit them from making private use of

their land when, in fact, they face potential constraints only if they

need a Federal permit or receive Federal funding to conduct specific

activities on their lands, such as filling in wetlands. These types of

misunderstandings, and the fear and mistrust they create among

potentially affected landowners, makes it very difficult for us to

cultivate meaningful working relationships with such landowners and to

encourage voluntary participation in species conservation and recovery

activities. Without the willing participation of landowners in the

recovery process, we will find it very difficult to recover T. howellii

ssp. spectabilis on the private lands where the only known populations

occur.

We are currently working with involved agencies and landowners to

periodically survey and monitor T. howellii ssp. spectabilis

populations and develop plant management strategies. We have notified

all involved parties and landowners 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

livestock grazing threat is being addressed by working directly with

landowners to adjust seasonal use and through fence construction to

limit livestock trespass. The plant is palatable to livestock, and

grazing occurring from April through July can be detrimental to annual

seed production; grazing at other times of the 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 us and landowners, other

governmental agencies offer opportunities to protect T. 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 U.S.

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 benefit provided by

designation of critical habitat on non-Federal lands, we believe that

conservation and protection of this plant will be accomplished more

effectively through procedures other than critical habitat designation.

A designation of critical habitat for T. howellii ssp. spectabilis

on private lands could inadvertently encourage habitat destruction by

private landowners wishing to rid themselves of the perceived

endangered species problem. Listed plants have limited protection under

the Act, particularly on private lands. Section 9(a)(2) of the Act,

implemented by regulations at 50 CFR section 17.61 (endangered plants)

and 50 CFR 17.71 (threatened plants) only prohibits (1) removal and

reduction of listed plant species to possession from areas under

Federal jurisdiction, or their malicious damage or destruction on areas

under Federal jurisdiction; or (2) removal, cutting, digging up, or

damaging or destroying any such species in knowing violation of any

State law or regulation, including State criminal trespass laws.

Generally, on private lands, collection of, or vandalism to, listed

plants must occur

[[Page 28401]]

in violation of State law to be a violation of section 9. The Oregon

Endangered Species Act does not protect listed plants on private lands.

Thus, a private landowner concerned about perceived land management

conflicts resulting from a critical habitat designation covering his

property would likely face no legal consequences if the landowner

removed the listed species or destroyed its habitat. The designation of

critical habitat involves the publication of habitat descriptions and

mapped locations of the species in the Federal Register, increasing the

likelihood of unwanted notice by potential search and removal

activities at specific sites.

We acknowledge that in some situations critical habitat designation

may provide some value to the species by notifying the public about

areas important for the species conservation and calling attention to

those areas in special need of protection. However, in this case, the

few existing sites containing T. howellii ssp. spectabilis are already

known by the affected private landowners. When this limited public

notification benefit is weighed against the detriment to plant species

associated with the widespread misunderstanding about the effects of

such designation on private landowners and the environment of mistrust

and fear that such misunderstandings can create, we conclude that the

detriment to the species from a critical habitat designation covering

non-federal lands outweighs the educational benefit of such designation

and that such designation is therefore not prudent. The information and

notification process can more effectively be accomplished by working

directly with landowners and communities during the recovery planning

process and by the section 7 consultation and coordination where the

Federal nexus exists. The use of these existing processes will impart

the same knowledge to the landowners that critical habitat designation

would, but without the confusion and misunderstandings that may

accompany a critical habitat designation.

Although this biennial plant is not of horticultural interest, the

listing in and of itself may contribute to an increased risk from over-

collection. Simply listing a species can precipitate commercial or

scientific interest and activities, both legal and illegal, which can

threaten the species through unauthorized and uncontrolled collection

for both commercial and scientific purposes. The listing of species as

endangered or threatened publicizes their rarity and may make them more

susceptible to collection by researchers or curiosity seekers (Mariah

Steenson pers. comm. 1997, M. Bosch, U.S. Forest Service in litt.

1997). Disseminating specific, sensitive locations can encourage plant

poaching (M. Bosch, U.S. Forest Service, pers. comm., 1997). For

example, the Service designated critical habitat for the mountain

golden heather (Hudsonia montana), a small shrub not previously known

to be commercially valuable or particularly susceptible to collection

or vandalism. After the critical habitat designation was published in

the Federal Register, unknown persons visited a Forest Service

wilderness area in North Carolina where the plants occurred and, with a

recently published newspaper article and maps of the plant's critical

habitat designation in hand, asked about the location of the plants.

Several plants we had been monitoring were later found to be missing

from unmarked Service study plots (Nora Murdock, U.S. Fish and Wildlife

Service, pers. comm. 1998). Designating critical habitat, including the

required disclosure of precise maps and descriptions of critical

habitat, would further advertise the rarity of T. howellii ssp.

spectabilis and provide a road map to occupied sites causing even

greater threat to the species from vandalism, trampling, or

unauthorized collection (M. Steenson, Portland Nursery Inc., 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

collection because of their inability to escape when sought by

collectors.

In conclusion, we have weighed the lack of overall benefit of

critical habitat designation beyond that provided by virtue of being

listed as threatened or endangered along with the limited benefit of

public notification against the detrimental effects of the negative

public response and misunderstanding of what critical habitat

designation means and the increased threats of illegal collection and

vandalism, and have concluded that critical habitat designation is not

prudent for T. howellii ssp. spectabilis.

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 public awareness and

results in conservation actions by Federal, State and private agencies,

groups, and individuals. The Act provides for possible land acquisition

and cooperation with the states and requires that recovery actions be

carried out for all listed species. The protection required of Federal

agencies and the prohibitions against certain activities involving

listed plants are discussed, in part, below.

Section 7(a) of the Act 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 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 us

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 us.

Federal agencies that may have involvement with Thelypodium

howellii ssp. spectabilis through section 7 include the Corps and the

Environmental Protection Agency through their permit authority under

section 404 of the Clean Water Act. The Federal Housing Administration

and Farm Services 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.

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

[[Page 28402]]

reduce to possession from areas under Federal jurisdiction. Seeds from

cultivated specimens of threatened plant taxa also are exempt from

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

appears on the shipping containers. Certain exceptions 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. We anticipate 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, T. howellii ssp. spectabilis is not known to occur

on public (Federal) lands. We believe that, based upon the best

available information, the following actions will not result in a

violation of section 9, provided these activities are carried out in

accordance with existing regulations and permit requirements:

(1) Activities authorized, funded, or carried out by Federal

agencies (if the species were found on Federal lands), (e.g., grazing

management, agricultural conversions, wetland and riparian habitat

modification, flood and erosion control, residential development,

recreational trail development, road construction, hazardous material

containment and cleanup activities, prescribed burns, pesticide/

herbicide application, pipelines or utility lines crossing suitable

habitat,) when such activity is conducted in accordance with any

reasonable and prudent measures given by the Service in a consultation

conducted under section 7 of the Act;

(2) Casual, dispersed human activities on foot or horseback (e.g.,

bird watching, sightseeing, photography, camping, hiking);

(3) Activities on private lands that do not require Federal

authorization and do not involve Federal funding, such as grazing

management, agricultural conversions, flood and erosion control,

residential development, road construction, and pesticide/herbicide

application when consistent with label restrictions;

(4) Residential landscape maintenance, including the clearing of

vegetation around one's personal residence as a fire break.

We believe that the following might potentially result in a

violation of section 9; however, possible violations are not limited to

these actions alone:

(1) Unauthorized collecting of the species on Federal lands (if the

species were to occur on Federal lands);

(2) Application of pesticides/herbicides in violation of label

restrictions;

(3) Interstate or foreign commerce and import/export without

previously obtaining an appropriate permit. Permits to conduct

activities are available for purposes of scientific research and

enhancement of propagation or survival of the species.

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).

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 Endangered Species Act, as amended. A

notice outlining our reasons for this determination was published in

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

Paperwork Reduction Act

This rule does not contain any information collection requirements

for which the Office of Management and Budget (OMB) approval under the

Paperwork reduction Act, 44 U.S.C. 3501 et seq. is required. An

information collection related to the rule pertaining to permits for

endangered and threatened species has OMB approval and is assigned

clearance number 1018-0094. This rule does not alter that information

collection requirement. For additional information concerning permits

and associated requirements for threatened species, see 50 CFR 17.32.

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 (ODFW). 1996. Miles wetlands

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

Wildlife Service.

Oregon Natural Heritage Program (ONHP). 1998. Element occurrence

records for Thelypodium howellii ssp. spectabilis.

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

Whitson, T.D., L.C. Burrill, S.A. Dewey, D.W. Cudney, B.E. Nelson,

R.D. Lee, R. Parker. 1996. Weeds of the West, 5th edition. Published

by the University of Wyoming and the Western Society of Weed

Science, Newark, California.

Author. The primary author of this final rule is Edna Rey-

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

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

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, amend part 17, subchapter B of chapter I, title 50 of

the Code of Federal Regulations as set forth below:

[[Page 28403]]

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 to read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

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Species

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

Scientific name Common name habitat rules

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

* * * * * * *

Flowering Plants

* * * * * * *

Thelypodium howellii ssp. Howell's spectacular U.S.A. (OR)........ Brassicaceae T 662 NA NA

spectabilis. thelypody. mustard.

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Dated: April 28, 1999.

Jamie Rappaport Clark,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 99-13249 Filed 5-25-99; 8:45 am]

BILLING CODE 4310-55-P