Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for Sidalcea oregana var. calva (Wenatchee Mountains Checker-Mallow)

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE32

Endangered and Threatened Wildlife and Plants; Determination of

Endangered Status for Sidalcea oregana var. calva (Wenatchee Mountains

Checker-Mallow)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

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

endangered species status under the Endangered Species Act (Act) of

1973, as amended, for Sidalcea oregana var. calva (Wenatchee Mountains

checker-mallow). This plant species is endemic to meadows that have

surface water or saturated soil in the spring and early summer at

middle elevations in the Wenatchee Mountains of Chelan County,

Washington. Although five populations of this plant are known, three of

these have very few individuals. The estimated total number of plants

is about 3,300. The primary threats to S. oregana var. calva include

habitat fragmentation and destruction due to alterations of hydrology,

rural residential development and associated activities, competition

from native and alien plants, recreation, fire suppression, and

activities associated with fire suppression. To a lesser extent, the

species is threatened by livestock grazing, road construction, and

timber harvesting and associated impacts including changes in surface

runoff in the small watersheds in which the plant occurs. This rule

implements the Federal protections provided by the Act for this plant.

EFFECTIVE DATE: This final rule is effective January 21, 2000.

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

by appointment, during normal business hours at the Western Washington

Office, North Pacific Coast Ecoregion, U.S. Fish and Wildlife Service,

510 Desmond Drive, Suite 102, Lacey, WA 98503-1273.

FOR FURTHER INFORMATION CONTACT: Gerry Jackson, Supervisor, at the

above address (telephone 360/753-4327; facsimile 360/753-9815).

SUPPLEMENTARY INFORMATION:

Background

Sidalcea oregana var. calva (Wenatchee Mountains checker-mallow) is

known only from the Wenatchee Mountains of central Washington.

Specimens assignable to var. calva were first collected from Icicle

Creek near Leavenworth in Chelan County and from wet meadows near the

town of Peshastin in Chelan County by Sandberg and Leiberg on July 25,

1893 (herbarium collection, stored in permanent collection at the

Smithsonian Institution and the University of Oregon herbaria (Sandberg

and Leiberg #586)). Occasional collections were made over subsequent

decades until the type specimen was collected by Hitchcock on June 21,

1951, from Camas Land in Chelan County (herbarium collection, stored in

permanent collection at Washington State University and the University

of Oregon (Hitchcock #19,427)). The taxon was first recognized as a

distinct variety named S. oregana ssp. oregana var. calva by Hitchcock

and Kruckeberg (1957). Hitchcock and Cronquist (1973) reduced S.

oregana ssp. oregana to varietal status (S. oregana var. spicata),

thereby eliminating the need to include the subspecies oregana as part

of the scientific name for this taxon. No further taxonomic revisions

have been made for this taxon. In recent discussions, knowledgeable

individuals confirmed the distinctness of this variety (Arthur

Kruckeberg, University of Washington, pers. comm. 1995; John Gamon,

Washington Natural Heritage Program, pers. comm. 1996).

A member of the mallow family (Malvaceae), Sidalcea oregana var.

calva is a perennial plant with a stout taproot that branches at the

root-crown and gives rise to several stems that are 20 to 150

centimeters (cm) (8 to 60 inches (in)) tall. Plants vary from glabrous

(lacking hairs and glands) to pubescent (hairy) or stellate (with star-

shaped hairs) below, are finely stellate above, and have flower

clusters with one to many stalked flowers arranged singly along a

common stem. The flowers have pink petals 1 to 2 cm (0.4 to 0.8 in)

long. The flowers are borne on stalks ranging from 1 to 10 millimeters

(mm) (0.04 to 0.4 in) in length; the calyx (outer whorl of floral

parts) ranges from uniformly finely stellate to bristly with a mixture

of longer, simple to four-rayed, spreading hairs sometimes as long as

2.5 to 3 mm (0.1 to 0.12 in) (Hitchcock and Cronquist 1961). Flowering

begins in the middle of June and peaks in the middle to end of July.

Fruits are ripe by August. Sidalcea oregana var. calva is similar

morphologically to S. oregana var. procera, which occurs in the same

general region but with a more southerly distribution. Sidalcea oregana

var. calva can be distinguished from var. procera by the type and

degree of pubescence on the stems and calyx and its large, fleshy,

basal leaves, which are smooth to the touch on both surfaces (Gamon

1987).

The historical site location of the 1893 collection near the town

of Peshastin and three other early (pre-1940) collections in the

Peshastin area have not been relocated (Gamon 1987). The location given

for each of these early collections was too vague to allow for

relocation. Conversion of the Peshastin and Leavenworth area to

orchards or other agricultural uses and rural residential development

has likely extirpated Sidalcea oregana var. calva from this area.

Resurveying of three other locations thought to have Sidalcea oregana

var. calva revealed plants found to be S. oregana var. procera (Gamon

1987). At another three sites where S. oregana var. calva was

discovered in 1984, no plants were found in 1987, possibly because the

few plants found in 1984 went undetected in 1987, the original location

information was imprecise, or the few plants found in 1984 did not

survive due to changes in the hydrologic regimes of the area (J. Gamon,

pers. comm. 1997).

Currently, Sidalcea oregana var. calva is known to occur at five

sites (populations). The largest population is located in an area

called Camas Land, a wetland and moist meadow complex surrounded by

ponderosa pine and Douglas-fir forests. The area is a mixture of

private land, State of Washington land managed as the Camas Land

Natural Area Preserve (NAP) by the Washington Department of Natural

Resources (WDNR), and land administered by the Wenatchee National

Forest (U.S. Forest Service). Camas Land is located and named on U.S.

Forest Service and WDNR maps. Based on a recent inventory, about 2,470

individuals occur on 36 hectares (ha) (90 acres (ac)) of WDNR property

in Camas Land (Washington Natural Heritage Program 1997). These plants

are thought to represent about 75 percent of the Camas Land population

(David Wilderman, WDNR, pers. comm. 1997). The second largest

population, discovered in 1987 on private land at Mountain Home Meadow,

consists of about 100 plants within a few hectares (Ted Thomas,

Service, pers. obs. 1995). Two other populations on the Wenatchee

National Forest have a total

[[Page 71681]]

of seven plants (Richy Harrod, U.S. Forest Service, pers. comm. 1997).

The fifth population, on private land, has fewer than 30 plants (T.

Thomas, pers. obs. 1995). The estimated total number of plants in these

5 populations is fewer than 3,300. The total area occupied by the 5

populations is approximately 50 ha (125 ac).

Sidalcea oregana var. calva is most abundant in moist meadows that

have surface water or saturated upper soil profiles during spring and

early summer, but it also occurs in open conifer stands dominated by

Pinus ponderosa (ponderosa pine) and Pseudotsuga menziesii (Douglas-

fir) and on the margins of shrub and hardwood thickets. Extant

populations are found at elevations ranging from 600 to 1,000 meters

(m) (1,970 to 3,300 feet (ft)). The soils are typically clay-loams and

silty loams with low moisture permeability. Associated species include

Populus tremuloides (quaking aspen), Crataegus douglasii (black

hawthorn), Symphoricarpus albus (common snowberry), Amelanchier

alnifolia (serviceberry), Lathyrus pauciflorus (few-flowered peavine),

Wyethia amplexicaulis (northern mule's-ear), Geranium viscosissimum

(sticky purple geranium) and Veratrum californicum (California false

hellebore). Sixty percent of the S. oregana var. calva populations are

found in association with Delphinium viridescens (Wenatchee larkspur),

a former Federal category 1 candidate plant species.

Previous Federal Action

Federal action on Sidalcea oregana var. calva began when we

published an updated Notice of Review for plants on December 15, 1980

(45 FR 82480). This notice included S. oregana var. calva as a category

1 candidate species. Category 1 candidates were defined as taxa for

which we had on file substantial information on biological

vulnerability and threats to support preparation of listing proposals.

The Notice of Review published on September 27, 1985 (50 FR 39526),

included Sidalcea oregana var. calva as a category 2 candidate species.

Category 2 candidates were defined as taxa for which information

indicated that proposing to list the taxa as endangered or threatened

was possibly appropriate, but for which substantial data on biological

vulnerability and threats were not currently known or on file to

support a listing proposal. Later notices of review published on

February 21, 1990 (55 FR 6185), and September 30, 1993 (58 FR 51144),

identified the plant as a category 1 candidate species. Upon

publication of the February 28, 1996, Notice of Review (61 FR 7596), we

ceased using the category designations and included Sidalcea oregana

var. calva as a candidate species. Candidate species are those for

which we have 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

certain findings on pending petitions within 12 months of their

receipt. Section 2(b)(1) of the 1982 amendments further requires that

all petitions pending on October 13, 1982, be treated as having been

newly submitted on that date. That provision of the Act applied to

Sidalcea oregana var. calva, because the 1975 Smithsonian report had

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

petitioned listing of this species was warranted but precluded by other

pending listing actions, in accordance with section 4(b)(3)(B)(iii) of

the Act; notification of this finding was published on January 20, 1984

(49 FR 2485). Such a finding requires the petition to be recycled,

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

annually in October of 1984 through 1995.

On August 1, 1997, we published a proposed rule to list Sidalcea

oregana var. calva as an endangered species (62 FR 41328). The comment

period was open until September 30, 1997. With publication of this

final rule, we now determine that Sidalcea oregana var. calva is

endangered.

The processing of this final rule conforms with our Listing

Priority Guidance published in the Federal Register on October 22, 1999

(64 FR 57114). 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 (Priority 1). Second priority (Priority 2) is

processing final determinations on proposed additions to the lists of

endangered and threatened wildlife and plants. Third priority is

processing new proposals to add species to the lists. The processing of

administrative petition findings (petitions filed under section 4 of

the Act) is the fourth priority. The processing of critical habitat

determinations (prudency and determinability decisions) and proposed or

final designations of critical habitat will no longer be subject to

prioritization under the Listing Priority Guidance. This final rule is

a Priority 2 action and is being completed in accordance with the

current Listing Priority Guidance.

We have updated this rule to reflect any changes in distribution,

status, and threats since publishing the proposed rule and to

incorporate information obtained through the public comment period.

This additional information did not alter our decision to list this

species.

Summary of Comments and Recommendations

In the August 1, 1997, proposed rule (62 FR 41328) and associated

notifications, we requested interested parties to submit factual

reports or information that might contribute to the development of a

final rule. We sent announcements of the proposed rule to appropriate

Federal and State agencies, county governments, scientific

organizations, and other interested parties. We also published

announcements of the proposed rule in newspapers, including the Seattle

Times, Seattle Post-Intelligencer, Olympian, Wenatchee World,

Leavenworth Echo, Bremerton Sun, Centralia Chronicle, Everett World,

Longview World, Skagit Valley Herald, Peninsula Daily News, Spokesman

Review, Yakima Herald, Aberdeen Daily World, Bellingham Herald,

Bellevue Daily, and Vancouver Columbian, on August 1, 1997, inviting

public comment.

During the comment period, we received five comments, from one

Federal agency, one State agency, one conservation organization, and

two individuals or groups. All commenters, except one, supported the

listing of Sidalcea oregana var. calva under the Act.

Because multiple respondents offered similar comments, we grouped

comments of a similar nature or point. These comments and our responses

to each are discussed below.

Issue 1: One commenter was concerned that listing this species

would restrict further development of the commenter's property.

Our Response: Nothing prohibits ``take'' of plants on private land.

Future construction activities on private land would not be restricted

by any regulations under the Act, provided that there is no Federal

agency involvement in the activities. If actions on private property

require Federal funding, authorizations, or a Federal permit, the

Federal action agency must consult with us. For further discussion on

consultation requirements under section 7 of the Act, see the

``Available Conservation Measures'' section of this final rule.

Issue 2: One commenter questioned our authority to regulate

interstate

[[Page 71682]]

commerce, as related to this endangered species.

Our 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's prohibitions

to protect the listed Delhi Sands flower-loving fly (Rhaphiomidas

terminatus abdominalis). As with Sidalcea oregana var. calva, the Delhi

Sands flower-loving fly is endemic to only one State. Judge Wald held

that application of the Act's prohibition 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

applying the Act in that case prevented destructive interstate

competition and loss of biodiversity. Judge Henderson upheld protection

of the fly because doing so prevents harm to the ecosystem upon which

interstate commerce depends and regulates commercial development that

is part of interstate commerce.

The Federal Government also has the authority under the Property

Clause of the Constitution to protect this species. Sidalcea oregana

var. calva occurs on Federal land in the Wenatchee National Forest. If

this species were to become extinct, the diversity of plant life in the

Wenatchee National Forest would be diminished. 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).

Peer Review

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

FR 34270), we solicited the expert opinions of 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 that was incorporated and is presented

in the final rule.

Summary of Factors Affecting the Species

Section 4 of the Act and the 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) of the Act. These factors and

their applications to Sidalcea oregana (Nutt.) var. calva C.L.

Hitchcock (Wenatchee Mountains checker-mallow) are as follows:

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

of Its Habitat or Range.

All known sites and habitats for Sidalcea oregana var. calva have

undergone various alterations. Conversion of land to orchards or other

agricultural uses and rural residential development are thought to have

extirpated historical populations (Gamon 1987). Numerous houses already

exist at Camas Land, the site of the largest population, and two houses

have been built there since 1987 (T. Thomas, pers. obs. 1995). Current

threats to this population are posed by further subdivision for

residences and associated habitat modifications, such as alterations in

hydrology, increased nutrient loads into the meadow from septic

systems, introduction of non-native grasses, conversion of portions of

the meadow to agricultural uses including pasture land and gardens,

access road construction, and trampling by people and off-road vehicles

(Gamon 1987; T. Thomas, pers. obs. 1995; D. Wilderman, pers. comm.

1997).

Natural drainage channels within Camas Land have been altered to

direct water away from the primary wet meadow area for agricultural

purposes (Gamon 1987; R. Harrod, pers. comm. 1996; D. Wilderman, pers.

comm. 1997). Alterations in hydrology threaten the species by changing

the amount, timing, duration, and/or frequency of the water supply to

the habitat for the species. Most individuals of Sidalcea oregana var.

calva in the Camas Land meadow are associated with the drainage

channels or areas that retain moisture relatively longer (Gamon 1987).

Livestock occur in Camas Land, and the sheep, horses, and cows

trample vegetation, compact soils, and serve as vectors for introducing

non-native plant seeds either directly or indirectly through their

feed. Portions of the primary meadow have also been seeded to non-

native grasses to increase forage for livestock. In addition, non-

native grasses have been planted near residences for lawns and appear

to be encroaching into the primary meadow area (T. Thomas, pers. obs.

1995). These introduced grasses are rhizomatous (forming a thick layer

of matted roots), and tend to outcompete and, therefore, displace

native species for nutrients and water (R. Harrod, pers. comm. 1996).

Sidalcea oregana var. calva is generally absent from these areas except

for occasional individuals along the periphery, suggesting that the

introduced species are able to displace S. oregana var. calva (Gamon

1987).

The primary Camas Land meadow is used by recreationists, which has

had detrimental effects on the population of Sidalcea oregana var.

calva (Gamon 1987; D. Wilderman, pers. comm. 1997). People engaging in

a variety of recreational activities, including trailbike riding, bow-

hunting competitions, and camping, contribute to the species' decline

by trampling plants and compacting the soil. Trampling of S. oregana

var. calva plants has been documented (D. Wilderman, pers. comm. 1997).

Timber harvest has occurred throughout the general Camas Land area

(R. Harrod, pers. comm. 1996). Local ground disturbance associated with

timber harvest, such as log yarding and slash disposal, probably poses

a greater threat than tree removal (Gamon 1987) by crushing plants and

compacting the soil. Timber harvest may also have long-term effects on

the hydrology in the small watershed and poses a threat to the species

by increasing erosion and sedimentation in the wetlands where it occurs

and changing the patterns of surface and subsurface water runoff.

A large portion of the two largest populations of Sidalcea oregana

var. calva in Camas Land was adversely impacted by fire-suppression

activities associated with the Rat Creek and Hatchery Creek fires

during the fall of 1994 on the Wenatchee National Forest (Harrod 1994;

T. Thomas, pers. obs. 1995). During construction of a fire safety zone

in a small drainage flowing into the Camas Land Meadow, a bulldozer

destroyed several hundred S. oregana var. calva plants. The plants were

bladed and uprooted, the topsoil removed, and the site scraped to

mineral soil. During a visit to the disturbed site in May of 1995,

researchers observed no sprouts or seedlings of S. oregana var. calva

(T.

[[Page 71683]]

Thomas, pers. obs. 1995). The likelihood of recovery of S. oregana var.

calva within the disturbed portion of the population appears low (R.

Harrod, pers. comm. 1996).

A second population, at Mountain Home Meadow, was also adversely

impacted by fire-suppression activities associated with the Rat Creek

Fire during 1994 (Harrod 1994). A fire safety area was constructed in

the wetland supporting a population of Sidalcea oregana var. calva.

Blading of the area by a bulldozer destroyed approximately 50 percent

(more than 100 plants) of the population, disturbed the soil, and

altered the hydrology of this wet meadow. One year after the

disturbance, no S. oregana var. calva plants were observed at this

location (T. Thomas, pers. obs. 1995). The likelihood of recovery of

the destroyed portion of this population appears low (R. Harrod, pers.

comm. 1996).

The potential for forest fires is high in the east side ponderosa

pine and Douglas-fir forest type. Prior to 1900, historic fire

frequency in the forests east of the Cascade Crest was approximately 13

years, with fire essentially absent from 1900 to 1990 (Everett et al.

1997). With the reduction of fires during this century, the structure

of east-side forests has been altered with an increase in tree density

and development into multiple canopy layers. Because of the changes in

stand structure, these forests are highly susceptible to wildfire (Agee

1993). Because fires threatening private property and public structures

are suppressed, the likelihood for further direct disturbance to

Sidalcea oregana var. calva populations in the future remains high.

Fire may play a role in the maintenance of suitable habitat for S.

oregana var. calva (Gamon 1987), and fire suppression has probably

resulted in less suitable habitat (R. Harrod, pers. comm. 1996). In the

absence of fire, conifer recruitment and woody plant invasion may

reduce the amount of habitat suitable for S. oregana var. calva by

increasing competition for light, nutrients, and water. A significant

increase in vegetative growth due to fire suppression outside of the

immediate habitat for S. oregana var. calva may also adversely affect

habitat suitability for the species by reducing the surface runoff

within the small wetlands where it occurs.

Other current threats at Mountain Home Meadow, where the second

largest known population of Sidalcea oregana var. calva occurs, include

alteration of hydrology due to road construction, timber harvesting

activities, and inadvertent trampling of the small population by guests

at a nearby resort lodge. The hydrology of the site may be altered by

the main access road that borders the population on the west. Timber on

the ridge immediately west of the main access road was harvested in

1987. This timber was within 50 m (164 ft) of the population, and the

harvest temporarily modified the area's hydrology by increasing water

flow from the hillside directly into the plant's habitat. Timber was

also harvested from the ridge directly above and east of Mountain Home

Meadow during the summer of 1995, and this harvest may have modified

surface runoff (R. Harrod, pers. comm. 1996). Construction activities

and facilities maintenance at the lodge may also alter the site

hydrology and adversely impact the S. oregana var. calva population at

this location (Gamon 1987; T. Thomas, pers. obs. 1995).

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

Seed of the full species Sidalcea oregana is collected by

horticulturists. Some populations are small enough that even limited

collecting pressure could have adverse impacts. S. oregana var. calva

is an attractive plant and may be sought for collection if its rarity

and population locations become well known. All perennial species in

the genus are considered attractive plants with horticultural potential

(Hitchcock and Cronquist 1961; Gamon 1987; Hill 1993). Wild-collected

seed of the species, S. oregana (no variety given), is available

through a seed exchange program offered by the international gardening

society North American Rock Garden Society (North American Rock Garden

Society 1996).

C. Disease or Predation

Large numbers of aphids have infested individuals of Sidalcea

oregana var. calva at the Camas Land and Mountain Home Meadow

populations (Gamon 1987). The effect of these aphids, or the

relationship of the aphids to S. oregana var. calva, is not known. In

1987, researchers observed that weevils had eaten the majority of the

seeds that had been produced (Gamon 1987); herbivory has also been

observed more recently (R. Harrod, pers. comm. 1996). Livestock,

especially sheep, have grazed the Camas Land meadow complex, and the

southeast portion of the meadow is currently grazed by horses. Whether

herbivory by livestock or wildlife has adversely impacted the S.

oregana var. calva population is unknown, as is the potential threat

herbivory may currently pose. Some grazing by horses and wildlife (deer

and elk) also has been observed, although the impact from grazing is

unknown (Gamon 1987; R. Harrod, pers. comm. 1996).

D. The Inadequacy of Existing Regulatory Mechanisms

Sidalcea oregana var. calva is included on the U.S. Forest Service

Region 6 Sensitive Plant List and is listed as endangered by the WDNR's

Natural Heritage Program (1994). The State of Washington has no State

Endangered Species Act, and therefore, the WDNR designation provides no

legal protection for this species.

The Wenatchee National Forest has developed a draft conservation

agreement with us for another sensitive plant species, Delphinium

viridescens, which would indirectly provide some measures for

conserving Sidalcea oregana var. calva at the three sites where the two

species occur together. Some protective mechanisms discussed in the

draft agreement have been implemented and may serve to promote the

recovery of S. oregana var. calva on Forest Service land. However, this

agreement has not been finalized, does not address all of the threats

to S. oregana var. calva, and is inadequate to protect and recover the

species throughout its range (Gamon 1987; J. Gamon, pers. comm. 1997).

Protection provided through this conservation agreement would not

extend to private or State-owned land, where most of the individual

plants occur, nor would it protect the species from alteration of

hydrology, rural residential development and associated impacts,

competition from non-native plants, fire and fire-suppression

activities, insect outbreaks, and random events. The numbers of S.

oregana var. calva plants are so low on Forest Service land that these

two populations may not be viable, and little opportunity exists for

genetic exchange between the Wenatchee National Forest populations and

the other Camas Land populations. The area where the two populations

occur is designated under the Northwest Forest Plan as matrix, which is

land that is available to harvest. A small portion of the area does

occur in a managed late-successional reserve, which provides some

protection by limiting some of the activities that may occur there. The

two populations on Forest Service land occur behind locked vehicle

gates, so they are afforded some measure of protection. However, foot

and bicycle traffic is permitted.

The wetland habitat of Sidalcea oregana var. calva is under the

jurisdiction of the U.S. Army Corps of

[[Page 71684]]

Engineers (Corps). Under section 404 of the Clean Water Act, the Corps

regulates the discharge of dredged or fill material into waters of the

United States, including wetlands. Section 404 requires project

proponents to obtain a permit from the Corps prior to undertaking

activities (e.g., grading, discharge of soil or other fill material)

that would result in the fill of wetlands under the Corps'

jurisdiction. Denial or restriction of an activity under section 404

can occur if the effects of the activity would have an adverse effect

on such things as municipal water supplies, shellfish beds and fishery

areas, wildlife, or recreational areas.

Generally, if a project falls below certain thresholds, such as the

fill of wetlands less than 0.13 ha (0.33 ac) under Nationwide Permit 26

(33 CFR 330.5(a)(26), the project is considered authorized. Projects

meeting the criteria for a nationwide permit are normally permitted

with minimal environmental review by the Corps.

Individual permits are required for the discharge of fill material

into wetlands above the thresholds established by the nationwide

permits. The review process for the issuance of individual permits is

more rigorous than for nationwide permits. Unlike nationwide permits,

for individual permit applications, an alternatives analysis and an

assessment of cumulative wetland impacts and a 30-day public review

period is required. Resulting permits may include special conditions

that require the avoidance or mitigation of environmental impacts. In

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

would qualify for a nationwide permit, unless the project has

substantial or more than minimal impacts, or a species is listed as

threatened or endangered, or other significant resources might be

adversely affected by the proposed activity.

Three out of the five populations of Sidalcea oregana var. calva

are very small, two occupying habitat less than a couple of meters in

size, and one occupying a site of no more than 0.2 ha (0.05 ac). Any

one of these three populations could conceivably be eliminated if the

wetlands they occupy were covered by fill or discharged material. The

remaining two populations could lose a large number of individuals, as

well as have the hydrology of its habitat adversely modified by

discharge of fill or dredged material. Because many activities that

could cause modification or destruction of the wetland habitats of S.

oregana var. calva could be authorized by nationwide permit, section

404 of the Clean Water Act provides insufficient protection of the

species. Following listing of the species, however, section 404 could

provide greater protection.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Fewer than 5 individuals are present at each of 2 sites on Forest

Service land, and fewer than 30 individuals are present at 1 of the

sites on private land. When populations reach such low numbers of

individuals, their vulnerability to extirpation from human-caused and

random events increases (Gilpin and Soule 1986; Given 1994; Schemske et

al. 1994). An outbreak of insects, soil disturbance from livestock

grazing, or a fire during the growing season of Sidalcea oregana var.

calva could extirpate these small populations or reduce the habitat

suitability for this species. The small, isolated nature of these

populations may also have an adverse effect on pollinator activity,

seed dispersal, and gene flow. Small populations may lose a large

amount of genetic variability because of genetic drift and, therefore,

have a reduced likelihood of long-term viability (Soule 1980, as cited

in Lesica and Allendorf 1992). The Mountain Home Meadow population has

fewer than 100 plants and is also vulnerable to many of these same

threats. An additional threat to the Mountain Home Meadow population

from an adjacent gravel road is dust, which may hinder pollination of

the plants nearest the road (Gamon 1987).

We have carefully assessed the best scientific and commercial

information available concerning the past, present, and future threats

faced by this species in making this rule final. Threats to Sidalcea

oregana var. calva, including alterations of wetland hydrology,

development of property for residential and agricultural use, habitat

modification or destruction from fire-suppression and related

activities, competition with native and non-native plant species, and

impacts from recreational activities, imperil the continued existence

of this species. Much of the habitat where this species occurs is

suitable for development and for modification by logging or agriculture

and is unprotected from these threats. The small populations of this

species are particularly vulnerable to extirpation from random natural

events. Sidalcea oregana var. calva is known from only five

populations. The most likely random natural threat to S. oregana var.

calva is wildfires, which remain a concern in the east-side Cascade

forest ecosystem. Two of these populations have fewer than 5

individuals each, while 1 population has fewer than 30 individuals.

Another population has about 100 individuals remaining after being

reduced 50 percent by fire-suppression activities. The largest

population has about 2,470 individuals. Sidalcea oregana var. calva is

in danger of extinction throughout its range and, therefore, meets the

Act's definition of endangered. Because of the high potential for these

threats, if realized, to result in the extinction of S. oregana var.

calva, the preferred action is to list S. oregana var. calva as

endangered. Other alternatives to this action were considered but not

preferred; not listing S. oregana var. calva or listing it as

threatened would not be in accordance with the Act.

Critical Habitat

In the proposed rule, we indicated that designation of critical

habitat was not prudent for Sidalcea oregana var. calva because of a

concern that publication of precise maps and descriptions of critical

habitat in the Federal Register could increase the vulnerability of

this species to incidents of collection and vandalism. We also

indicated that designation of critical habitat was not prudent because

we believed it would not provide any additional benefit beyond that

provided through listing as endangered.

In the last few years, a series of court decisions have overturned

Service determinations regarding a variety of species that designation

of critical habitat would not be prudent (e.g., Natural Resources

Defense Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th

Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d

1280 (D. Hawaii 1998)). Based on the standards applied in those

judicial opinions, we have reexamined the question of whether critical

habitat for Sidalcea oregana var. calva would be prudent.

Due to the small number of populations, Sidalcea oregana var. calva

is vulnerable to unrestricted collection, vandalism, or other

disturbance. We remain concerned that these threats might be

exacerbated by the publication of critical habitat maps and further

dissemination of locational information. However, we have examined the

evidence available for S. oregana var. calva and have not found

specific evidence of taking, vandalism, collection, or trade of this

species or any similarly situated species. Consequently, consistent

with applicable regulations (50 CFR 424.12(a)(1)(i)) and recent case

law, we do not expect that the identification of critical habitat will

increase the degree

[[Page 71685]]

of threat to this species of taking or other human activity.

In the absence of a finding that critical habitat would increase

threats to a species, if there are any benefits to critical habitat

designation, then a prudent finding is warranted. In the case of this

species, there may be some benefits to designation of critical habitat.

The primary regulatory effect of critical habitat is the section 7

requirement that Federal agencies refrain from taking any action that

destroys or adversely modifies critical habitat. While a critical

habitat designation for habitat currently occupied by this species

would not be likely to change the section 7 consultation outcome

because an action that destroys or adversely modifies such critical

habitat would also be likely to result in jeopardy to the species,

there may be instances where section 7 consultation would be triggered

only if critical habitat is designated. Examples could include

unoccupied habitat or occupied habitat that may become unoccupied in

the future. There may also be some educational or informational

benefits to designating critical habitat. Therefore, we find that

critical habitat is prudent for Sidalcea oregana var. calva.

The Final Listing Priority Guidance for FY 2000 (64 FR 57114)

states, ``The processing of critical habitat determinations (prudency

and determinability decisions) and proposed or final designations of

critical habitat will be funded separately from other section 4 listing

actions and will no longer be subject to prioritization under the

Listing Priority Guidance. Critical habitat determinations, which were

previously included in final listing rules published in the Federal

Register, may now be processed separately, in which case stand-alone

critical habitat determinations will be published as notices in the

Federal Register. We will undertake critical habitat determinations and

designations during FY 2000 as allowed by our funding allocation for

that year.'' As explained in detail in the Listing Priority Guidance,

our listing budget is currently insufficient to allow us to immediately

complete all of the listing actions required by the Act. Deferral of

the critical habitat designation for Sidalcea oregana var. calva has

allow us to concentrate our limited resources on higher priority

critical habitat (including court ordered designations) and other

listing actions, while allowing us to put in place protections needed

for the conservation of S. oregana var. calva without further delay.

However, because we have successfully reduced, although not eliminated,

the backlog of other listing actions, we anticipate in FY 2000 and

beyond giving higher priority to critical habitat designation,

including designations deferred pursuant to the Listing Priority

Guidance, such as the designation for this species, than we have in

recent fiscal years.

We plan to employ a priority system for deciding which outstanding

critical habitat designations should be addressed first. We will focus

our efforts on those designations that will provide the most

conservation benefit, taking into consideration the efficacy of

critical habitat designation in addressing the threats to the species,

and the magnitude and immediacy of those threats. We will develop a

proposal to designate critical habitat for the Sidalcea oregana var.

calva as soon as feasible, considering our workload priorities.

Unfortunately, for the immediate future, most of Region 1's listing

budget must be directed to complying with numerous court orders and

settlement agreements, as well as due and overdue final listing

determinations (like the one issue in this case).

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Endangered Species Act include recognition,

recovery actions, requirements for Federal protection, and prohibitions

against certain activities. Recognition through listing can encourage

and result in public awareness and conservation actions by Federal,

State, and local agencies, private organizations, and individuals. The

Act provides for possible land acquisition and cooperation with the

States and requires that recovery actions be carried out for all listed

species. Funding may be available through section 6 of the Act for the

State to conduct recovery activities. The protection required by

Federal agencies and prohibitions against certain activities involving

listed plants are discussed, in part, below.

Section 7(a) of the Act, as amended, 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 us on any action that is likely to jeopardize the continued

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

adverse modification of proposed critical habitat. If a species is

listed subsequently, section 7(a)(2) of the Act requires Federal

agencies to ensure that activities they authorize, fund, or carry out

are not likely to jeopardize the continued existence of a listed

species or destroy or adversely modify its critical habitat, if

designated. If a Federal action may affect a listed species or its

critical habitat, the responsible Federal agency must enter into formal

consultation with us, pursuant to section 7(a)(2) of the Act.

Two of the five known populations of Sidalcea oregana var. calva

are found entirely on Federal lands managed by the Wenatchee National

Forest, while a third population lies partially within its boundaries.

The U.S. Forest Service would be required to consult with us if any

actions such as timber harvesting, road construction, fire-suppression/

management, or grazing activities may affect S. oregana var. calva.

Other Federal agency actions that may require conference and/or

consultation include Army Corps of Engineers authorization of projects

affecting wetlands and other waters under section 404 of the Clean

Water Act (33 U.S.C. 1344 et seq.), Environmental Protection Agency

authorization of discharges under the National Pollutant Discharge

Elimination System, Natural Resource Conservation Service projects, and

Department of Housing and Urban Development and Veterans Administration

mortgage programs (Federal Home Administration loans). In addition,

sections 2(c)(1) and 7(a)(1) of the Act require Federal agencies to

utilize their authorities in furtherance of the purposes of the Act to

carry out conservation programs for endangered and threatened species.

Listing of this plant as endangered would provide for development

of a recovery plan for the plant. Such a plan would identify both State

and Federal efforts for conservation of the plant and establish a

framework for agencies to coordinate activities and cooperate with each

other in conservation efforts. The plan would set recovery priorities

and describe site-specific management actions necessary to achieve

conservation and survival of the plant. Additionally, pursuant to

section 6 of the Act, we would be able to grant funds to affected

States for management actions promoting the protection and recovery of

this species.

The Act and its implementing regulations set forth a series of

general prohibitions and exceptions that apply to all endangered

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

implemented by 50 CFR 17.61 for endangered plants, would apply. These

[[Page 71686]]

prohibitions, in part, make it illegal for any person subject to the

jurisdiction of the United States to import or export, transport in

interstate or foreign commerce in the course of a commercial activity,

sell or offer for sale in interstate or foreign commerce, or remove

such plants from areas under Federal jurisdiction. In addition, the Act

prohibits the malicious damage or destruction on areas under Federal

jurisdiction and the removal, cutting, digging up, damaging, or

destroying of such plants in knowing violation of any State law or

regulation, or in the course of a violation of State criminal trespass

law. Certain exceptions to the prohibitions apply to our agents and

State conservation agencies.

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

permits to carry out otherwise prohibited activities involving

endangered plant species under certain circumstances. Such permits are

available for scientific purposes and to enhance the propagation or

survival of the species. We anticipate that few trade permits would be

sought or issued because the species is not common in cultivation or in

the wild.

As published in the Federal Register on July 1, 1994 (59 FR 34272),

our policy is to identify, to the maximum extent practicable at the

time a species is listed, those activities that would or would not

constitute a violation of section 9 of the Act. The intent of this

policy is to increase public awareness of the effect of the listing on

proposed and ongoing activities within a species' range. Two of the

five known populations of Sidalcea oregana var. calva are found

entirely on Federal lands managed by the Wenatchee National Forest,

while a third population lies partially within its boundaries.

Collection, damage, or destruction of this species on Federal lands is

prohibited, although in appropriate cases a Federal permit could be

issued to allow collection for scientific or recovery purposes. Such

activities on non-Federal land would constitute a violation of section

9 of the Act if activities were conducted in knowing violation of

Washington State law or regulations, or in the course of a violation of

Washington State criminal trespass law.

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;

(2) 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 will constitute a

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

Western Washington 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 N.E. 11th Avenue, Portland, Oregon 97232-4181

(telephone 503/231-6241).

National Environmental Policy Act

We have determined that an environmental assessment and

environmental impact statement, as defined under the authority of the

National Environmental Policy Act of 1969, need not be prepared in

connection with regulations adopted pursuant to section 4(a) of the

Act. We published a notice outlining our reasons for this determination

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

Paperwork Reduction Act

This rule does not contain any new collections of information other

than those already approved under the Paperwork Reduction Act, 44

U.S.C. 3501 et seq., and assigned Office of Management and Budget

clearance number 1018-0094. An agency may not conduct or sponsor, and a

person is not required to respond to a collection of information,

unless it displays a currently valid control number. For additional

information concerning permit and associated requirements for

endangered plant species, see 50 CFR 17.62 and 17.63.

This rule has not been reviewed by the Office of Management and

Budget under C.O.12866.

References Cited

A complete list of all references cited herein, as well as others,

is available upon request from the Western Washington Office (see

ADDRESSES section).

Author

The primary author of this final rule is Ted Thomas, Western

Washington Office of the North Pacific Coast Ecoregion (see ADDRESSES

section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, we 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) * * *

[[Page 71687]]

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

Species

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

Scientific name Common name listed habitat rules

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

Flowering Plants

* * * * * * *

Sidalcea oregana var. calva...... Wenatchee Mountains U.S.A. (WA)........ Malvaceae--Mallow.. E 673 NA NA

checker-mallow.

* * * * * * *

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

Dated: December 8, 1999.

Jamie Rappaport Clark,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 99-33100 Filed 12-21-99; 8:45 am]

BILLING CODE 4310-55-P