[Federal Register Volume 65, Number 94 (Monday, May 15, 2000)]
[Proposed Rules]
[Pages 30941-30951]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-12123]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF84


Endangered and Threatened Wildlife and Plants; Proposed 
Endangered Status for the Plants Lomatium cookii (Cook's lomatium) and 
Limnanthes floccosa ssp. grandiflora (Large-Flowered Wooly Meadowfoam) 
in Oregon

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list two plants, Lomatium cookii (Cook's lomatium) and Limnanthes 
floccosa ssp. grandiflora (large-flowered wooly meadowfoam) as 
endangered species pursuant to the Endangered Species Act of 1973, as 
amended (Act). Both of these plants inhabit seasonally wet habitats 
known as vernal pools in the Agate Desert, an area north of Medford 
(Jackson County), Oregon. Researchers know of only 13 occurrences of L. 
cookii and 10 occurrences of L. f. ssp. grandiflora in the Agate 
Desert. An additional 10 occurrences of L. cookii are known in French 
Flat, Josephine County. The continued existence of L. cookii and L. f. 
ssp. grandiflora is threatened primarily by destruction of their 
habitat by industrial and residential development, including road and 
powerline construction and maintenance. Agricultural conversion, 
certain grazing practices, off-road vehicle use, and competition with 
nonnative plants also contribute to population declines. Lomatium 
cookii sites in Josephine County are additionally threatened by habitat 
alteration associated with gold mining, certain proposed timber 
projects, and woody species encroachment resulting from fire 
suppression. This proposal, if made final, would extend the Act's 
protection to these plants.

DATES: Comments from all interested parties must be received by July 
14, 2000. Public hearing requests must be received by June 29, 2000.

ADDRESSES: You may submit comments and materials on this proposal in 
person or by mail to: Field Supervisor, U.S. Fish and Wildlife Service, 
Oregon State Office, 2600 S.E. 98th Avenue, Portland, Oregon 97266. 
Alternatively, you may send comments via the Internet to 
<a href="/cdn-cgi/l/email-protection#a3cfcccfcae3d1928dc5d4d08dc4ccd5"><span class="__cf_email__" data-cfemail="c4a8aba8ad84b6f5eaa2b3b7eaa3abb2">[email protected]</span></a>. For further information please see section entitled 
``Public Comments Solicited.''

FOR FURTHER INFORMATION CONTACT: Judy Jacobs, U.S. Fish and Wildlife 
Service, Oregon State Office (see ADDRESSES section) (telephone 503/
231-6179; facsimile 503/231-6195).

SUPPLEMENTARY INFORMATION:

Background

    Vernal pools are seasonal wetlands that form only in regions where 
certain soil and climatic conditions exist. During fall and winter 
rains typical of Mediterranean climates, water collects in shallow 
depressions in areas where downward percolation of water is prevented 
by the presence of an impervious hard pan or clay pan layer below the 
soil surface (Keeley and Zedler 1998). Later in the spring, when rains 
decrease and the weather warms, the water evaporates, and the pools 
generally disappear by May. Vernal pools thus provide unusual ``flood 
and drought'' habitat conditions to which certain plants and animals 
have specifically adapted. Lomatium cookii (Cook's lomatium) and 
Limnanthes floccosa ssp. grandiflora (large-flowered wooly meadowfoam) 
are two such plant taxa that occur in vernal pool habitats in a small 
area of Jackson County, southwestern Oregon. Lomatium cookii also 
occurs in seasonally wet habitats at a few locations in Josephine 
County, the adjacent county to the west. The L. f. ssp. grandiflora is 
believed to be extant in only 10 locations in Jackson County, while L. 
cookii is believed to occur at 13 sites in Jackson and 10 in Josephine 
County (Oregon Natural Heritage Program (ONHP) Database 1998).
    Lomatium cookii is a perennial forb in the carrot family (Apiaceae) 
that grows 1.5 to 5 decimeters (6 to 20 inches (in)) tall from a 
slender, twisted taproot. Leaves are smooth, finely dissected, and 
strictly basal (growing directly above the taproot on the ground, not 
along the stems). One to four groups of clustered, pale-yellow flowers 
produce boat-shaped fruits 8 to 13 millimeters (mm) (0.3 to 0.5 in) 
long with thickened margins. The taproot can often branch at ground 
level to produce multiple stems. The branching taproot distinguishes L. 
cookii from L. bradshawii (indigenous to wet prairies from southern 
Willamette Valley, Oregon, to southwest Washington) and L. humile 
(found in vernal pools in northern California) (Kagan 1986). Lomatium 
utriculatum, found on mounds adjacent to pools in the Agate Desert, is 
distinguished from L. cookii by its more intense yellow flowers, the 
different shape of its involucel bracklets (leaflike structures below 
the flowers), and thin-winged fruits (Kagan 1986). Lomatium tracyi, 
occurring in California and the Illinois Valley, Oregon, has a similar 
appearance to L. cookii, but L. tracyi has slender-margined fruits and 
can grow on dry sites. Lomatium cookii has boat or pumpkin-shaped 
fruits and grows on seasonally wet sites (Lincoln Constance, Prof. 
Emeritus, University of California, Berkeley, pers. comm. 1992).
    James Kagan first collected Lomatium cookii in 1981 from vernal 
pools in the Agate Desert, Jackson County, Oregon, and subsequently 
described the species (Kagan 1986). Additional populations were found 
at French Flat in the Illinois Valley, Josephine County, Oregon in 1988 
(ONHP Database 1998). Plants in the French Flat populations grow on 
seasonally wet soils. Slight morphological differences exist between L. 
cookii populations in the Agate Desert and French Flat, but these 
differences are not considered significant enough to separate the 
species into subspecies (L. Constance, in litt. 1992). Preliminary 
genetic work has not revealed any differences between the Agate Desert 
and French Flat L. cookii populations (Matt Gitzendanner, Washington 
State University, pers. comm. February 1998).
    Limnanthes floccosa spp. grandiflora is a delicate annual in the 
meadowfoam, or false mermaid, family (Limnanthaceae). Limnanthes 
floccosa ssp. grandiflora grows 5 to 15 centimeters (cm) (2 to 6 in) 
tall, with 5 cm (2 in) leaves divided into 5 to 9 segments. The stems 
and leaves are sparsely covered with short, fuzzy hairs. The flowers, 
and especially the calyx (outer whorl of floral parts), are densely 
covered with wooly hairs. Each of the 5 yellowish to white petals is 
relatively long for the genus, 6 to 13 mm (0.2 to 0.5 in.), and has 2 
rows of hairs near its base.
    In his monograph of the genus Limnanthes, Mason (1952) described 
three varieties of Limnanthes floccosa but did not recognize 
grandiflora as distinct. Based on her study of specimens grown under 
controlled conditions from field-collected seed, Arroyo (1973) elevated 
Mason's varieties to subspecies and described

[[Page 30942]]

two additional subspecies, including ssp. grandiflora. This subspecies 
is distinguished from other subspecies of L. floccosa by its larger 
flower size, sparsely hairy stems and leaves, and two lines of hairs at 
the petal base (Arroyo 1973). Over much of its range, L. f. ssp. 
grandiflora overlaps with L. f. ssp. floccosa. However, L. f. ssp. 
floccosa grows on the slightly drier, outer fringes of the pools, 
whereas L. f. ssp. grandiflora grows on the relatively wetter, inner 
fringe of the pools (Arroyo 1973; Darren Borgias, The Nature 
Conservancy, pers. comm. 1998).
    Limnanthes floccosa ssp. grandiflora and Lomatium cookii both occur 
in and around vernal pools within an 83 square kilometer (km2) (32 
square mile (mi\2\)) landform in southwestern Oregon known as the Agate 
Desert in Jackson County. Located on the floor of the Rogue River basin 
north of Medford, the Agate Desert is characterized by shallow, Agate-
Winlow complex soils, a relative lack of trees, sparse prairie 
vegetation, and agates (fine-grained sands that have striped, cloudy, 
and rounded spots or patches of a color or shade different from their 
background) commonly found on the soil surface (ONHP 1997). Lomatium 
cookii also occurs in another area encompassing some 10 km2 (4 mi \2\) 
in adjacent Josephine County. This area, referred to as French Flat, is 
located within the Illinois Valley near the Siskiyou Mountains.
    In the Agate Desert, researchers know of only 13 occurrences of 
Lomatium cookii and 10 occurrences of Limnanthes floccosa ssp. 
grandiflora. Mapped habitat for these species in the Agate Desert 
totals some 54 hectares (ha) (133 acres (ac)) for L. cookii and 80 ha 
(198 ac) for L. f. ssp. grandiflora (ONHP Database 1998). However, due 
to recent alteration and destruction of vernal pools in the Agate 
Desert (ONHP 1997), habitat currently occupied by these plants is 
considerably less, an estimated 28 ha (69 ac) and 47 ha (116 ac) for L. 
cookii and L. f. ssp. grandiflora, respectively (ONHP Database 1998). 
These two taxa occur in five of the same vernal pool systems, 
constituting three ``occurrences'' as defined by ONHP. In French Flat, 
Josephine County, there are 10 known occurrences of L. cookii, 
occupying up to 61 ha (150 ac) of habitat, but many of these sites are 
very small (50 individuals or less), and current status is not well 
known.
    Two occurrences each of Lomatium cookii and Limnanthes floccosa 
ssp. grandiflora occur partially or entirely within the Agate Desert 
Preserve (Preserve), owned by The Nature Conservancy (TNC). The 
Preserve contains the only large populations on private land managed 
for protection of these species.
    Two occurrences of each taxon are on State land, mainly in the Ken 
Penman Wildlife Area, where much of the habitat has been altered and 
planted to grasses. Portions of two Lomatium cookii and three 
Limnanthes floccosa ssp. grandiflora occurrences are on lands owned by 
the City of Medford, within an area designated as the Whetstone 
Industrial Park. Portions of two L. f. ssp. grandiflora and four L. 
cookii occurrences are located in highway or powerline rights-of-way 
(ONHP Database 1998), where they are subject to herbicide spraying and 
other maintenance activities conducted by the State or counties. In 
French Flat, there are 10 known occurrences of L. cookii. Three 
occurrences of L. cookii occur on private land. Two of these 
occurrences are located on land managed by Jackson County; one of these 
has been largely extirpated by construction of a baseball sports 
complex. The remaining seven populations of L. cookii in Josephine 
County are located partially or entirely on land managed by the Bureau 
of Land Management (BLM).
    The Agate Desert landscape consists of a gentle mound-swale 
topography with a characteristic appearance in aerial photographs that 
is sometimes referred to as patterned ground. During the fall and 
winter rainy season, a striking pattern of shallow pools develops in 
the swales. These vary in size from 1 to 30 meters (m) (3 to 100 feet 
(ft)) across, and attain a maximum depth of about 30 cm (12 in) (ONHP 
1997). Plants native to these pools, including Limnanthes floccosa ssp. 
grandiflora and Lomatium cookii, are adapted to grow, flower, and set 
seed during the relatively short time that water is available in the 
spring. Special assemblages of plants blooming in concentric rings 
toward the deepest part of the pools can be seen as soil moisture 
recedes throughout the spring (ONHP 1997). Native plants that occur 
with Lomatium cookii and Limananthes floccosa ssp. grandiflora in these 
vernal pools include Plagiobothrys bracteatus (popcorn flower), Juncus 
uncialis (a rush), Navarretia spp. (Navarretia), and L. f. spp. 
floccosa (common wooly meadowfoam) (Kagan 1987).
    The historical range for Limnanthes floccosa ssp. grandiflora and 
Lomatium cookii in the Agate Desert may have originally encompassed 
over 130 km\2\ (50 mi\2\), within a 17-km (11-mi) radius of White City 
(ONHP 1997). Vernal pool habitat, formerly widespread south of the 
Rogue River, is now almost completely eliminated (Brock 1987; ONHP 
1997).
    During January and February of 1998, we conducted a preliminary 
study of vernal pool invertebrates at a number of vernal pools in the 
Agate Desert. This study revealed the presence of a federally 
threatened species, the vernal pool fairy shrimp (Branchinecta lynchi), 
at six of the pools sampled (May Consulting Services 1998). Two of 
these pools are on property managed by BLM, and the remainder are on 
TNC land. This fairy shrimp, previously believed to be endemic to 
vernal pools in California, was listed as a federally threatened 
species in 1994 (59 FR 48136). The presence of this threatened species 
underscores the need to conserve and restore remaining vernal pool 
habitat in the Agate Desert area.
    In French Flat, Lomatium cookii grows in wet meadow areas underlain 
with floodplain bench deposits that contain sufficient clay to form a 
clay pan at 60 to 90 cm (24 to 35 in) below the soil surface (U.S. 
Department of Agriculture 1983). The clay pan creates seasonally wet 
areas similar to the vernal pools of the Agate Desert, but mostly 
lacking the latter area's distinctive mound-swale topography. Common 
plants associated with L. cookii in French Flat include Danthonia 
californica (oatgrass), Plagiobothrys bracteatus, Horkelia congesta 
(horkelia), Calochortus uniflorus (mariposa lily), and Erythronium 
howellii (trout lily). The surrounding forest contains Pseudotsuga 
menziesii (Douglas fir) and Pinus jeffreyi (Jeffrey pine). Shrub 
species that grow on serpentine (rocky mineral consisting mostly of 
magnesium that gives it a green mottled color) soils, such as Ceanothus 
cuneatus (buckbrush) and Arctostaphylos viscida (manzanita), are found 
within the area of L. cookii sites (Linda Knight, BLM, in litt. 1992).
    The historical range of Lomatium cookii in French Flat may have 
included seasonally wet meadows along the East Fork of the Illinois 
River. Fire suppression, grazing, residential development, and 
extensive gold mine dredging (Shenon 1933) altered L. cookii habitat in 
this area. However, some native perennial communities remain in wet 
meadows that were not affected by mining. Gold mining imminently 
threatens L. cookii habitat in French Flat (Joan Seevers, BLM, pers. 
comm. 1998).

Previous Federal Action

    Federal action on Limnanthes floccosa ssp. grandiflora began with 
section 12 of the Act (16 U.S.C. 1531 et seq.), which directed the 
Secretary of the Smithsonian Institution to prepare a

[[Page 30943]]

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 
L. f. ssp. grandiflora as endangered. We published a notice on July 1, 
1975, (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 to review the status of the identified plant species. On June 
16, 1976, we published a proposal (41 FR 24523) to determine 
approximately 1,700 vascular plant species, including L. f. ssp. 
grandiflora, 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 us in response to 
House Document No. 94-51 and our July 1, 1975, Federal Register 
publication.
    General comments received regarding the 1976 proposal were 
summarized in an April 26, 1978, notice (43 FR 17909). The Act 
Amendments of 1978 required that all proposals over 2 years old be 
withdrawn. A 1-year grace period was given to proposals already more 
than 2 years old. On December 10, 1979, we published a notice of 
withdrawal (44 FR 70796) of the June 6, 1976, proposal, along with four 
other proposals that had expired.
    We published a Notice of Review for plants on December 15, 1980 (45 
FR 82480). This notice included Limnanthes floccosa ssp. grandiflora as 
a category 1 candidate for Federal listing. Category 1 candidates were 
those taxa for which we had on file substantial information on 
biological vulnerability and threats to support preparation of listing 
proposals. On November 28, 1983, we published a supplement to the 
Notice of Review (48 FR 53640). However, in the September 27, 1985, 
Notice of Review (50 FR 39526), the status of this taxon was changed to 
category 2. Category 2 candidates were those taxa for which data in our 
possession indicated listing was possibly appropriate, but for which 
substantial data on biological vulnerability and threats were not 
currently known or on file to support proposed rules.
    Category 2 status was maintained for Limnanthes floccosa ssp. 
grandiflora in the Notice of Review published on February 21, 1990 (55 
FR 6184). Lomatium cookii was first included in that 1990 Notice of 
Review as a category 1 candidate species. We made no changes to the 
status of the two species in the plant notice published on September 
30, 1993 (58 FR 51144). In our February 28, 1996, Notice of Review (61 
FR 7596), we discontinued the use of multiple candidate categories, and 
now only those taxa meeting the definition of the former category 1 are 
considered candidates for listing purposes. Lomatium cookii was 
maintained as a candidate species, but L. f. ssp. grandiflora was not. 
Our September 18, 1997, Notice of Review (62 FR 49397) included both L. 
f. ssp. grandiflora and L. cookii as candidates. The most recent Notice 
of Review (64 FR 57534), published on October 25, 1999, included both 
L. f. ssp. grandiflora and L. cookii as candidates.
    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. This provision applied to Limnanthes 
floccosa ssp. grandiflora 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 reviewed 
annually pursuant to section 4(b)(3)(C)(i) of the Act. For the purpose 
of making these annual petition findings, we made an administrative 
decision to treat all candidate plants as if their listings had been 
petitioned prior to 1982. Therefore, the ``warranted but precluded'' 
finding also applies to Lomatium cookii, which first appeared in the 
February 21, 1990, Notice of Review. The warranted but precluded 
finding for both species has been reviewed annually through 1999. 
Publication of this proposal constitutes the final finding for the 
petitioned action.
    The processing of this proposed 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. Processing of this 
proposed rule is a Priority 3 action and is being completed in 
accordance with the current Listing Priority Guidance.

Peer Review

    In accordance with interagency policy published on July 1, 1994 (59 
FR 34270), upon publication of this proposed rule in the Federal 
Register we will solicit expert reviews by at least three specialists 
regarding pertinent scientific or commercial data and assumptions 
relating to the taxonomic, biological, and ecological information for 
Lomatium cookii and Limnanthes floccosa ssp. grandiflora. The purpose 
of such a review is to ensure that listing decisions are based on 
scientifically sound data, assumptions, and analyses, including the 
input of appropriate experts.

Summary of Factors Affecting the Species

    Section 4 of the Endangered Species Act 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 Lomatium cookii (Cook's lomatium) and 
Limnanthes floccosa ssp. grandiflora Arroyo (large-flowered wooly 
meadowfoam) are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. The vernal pools and other 
seasonally wet soils where Lomatium cookii and Limnanthes floccosa ssp. 
grandiflora grow are susceptible to various land use disturbances. The 
primary threats to the vernal pool habitat of L. cookii and L. f. ssp. 
grandiflora in the Agate Desert are industrial, commercial, and 
residential development and related road and utilities construction and 
maintenance, including mowing and herbicide spraying; firebreak 
construction; and hydrologic alteration, particularly the conversion of 
nonirrigated land to irrigated agricultural use (D. Borgias, pers. 
comm. 1999). Competition, particularly from introduced annual grass 
species (see Factor E of this

[[Page 30944]]

section), and grazing, especially during the fall and winter months, 
can also reduce or eliminate populations of both species (Kagan 1987; 
James Kagan, Oregon Natural Heritage Program (ONHP), pers. comm. 1998). 
Josephine County populations of L. cookii are additionally threatened 
by proposed gold mining operations, the uncontrolled use of off-road 
vehicles (ORVs) in the areas occupied by this species, certain timber 
harvesting activities, and tree encroachment into open areas associated 
with fire suppression.
    Human-related impacts to vernal pool habitat in the Agate Desert 
began in the mid-1800's, when the area was grazed by cattle and sheep 
(ONHP 1997). In 1905, a land speculation company acquired a large part 
of the area and attempted to establish pear orchards by constructing an 
extensive system of shallow irrigation ditches and, in some cases, 
blasting through the hardpan layer. This effort failed, and grazing 
continued as the dominant land use until 1942, when the U.S. military 
purchased a large segment of the Agate Desert for a training center. 
When this center was decommissioned in 1946, a 158-ha (390-ac) portion 
of the area west of Highway 62 was purchased by a timber industry 
consortium, and a timber mill industrial center began to grow (ONHP 
1997). Other industries were drawn to the area, and around 1980 the 
City of Medford established the 290-ha (720-ac) Whetstone Industrial 
Park. Much of this area has been leveled and compacted, destroying any 
vernal pools, although some potential vernal pool habitat remains in 
the area (ONHP 1997). Another area west of Highway 62, encompassing 
some 728 ha (1,800 ac), is State land managed as the Ken Denman 
Wildlife Area (ONHP 1997). Devoted to waterfowl production, much of 
this area has been covered with log deck debris, plowed in strips, and 
planted with nonnative wildlife food plants (Brock 1987; J. Kagan, 
pers. comm. 1997).
    East of Highway 62, much of the Agate Desert landform was 
subdivided into 2-ha (5-ac) homesites in the 1950's, many of which were 
leveled. Because grazing was removed from some of these sites when they 
were offered for sale, this area has recovered somewhat and harbors 
some intact vernal pool habitat (Brock 1987; ONHP 1997).
    The southernmost section of the historical Agate Desert has been 
largely modified by cultivation for pasture. The Medford-Jackson County 
Airport occupies some 374 ha (925 ac) at the southern limit of the 
landform. A new building that will house a Foreign Trade Zone at the 
airport is currently under development (Bern Case, Director, Medford-
Jackson County Airport, pers. comm. 1998), and construction associated 
with this facility could impact Lomatium cookii plants at the site.
    Jackson County is experiencing rapid population increase. It is the 
ninth fastest growing county in Oregon, and the majority of this growth 
is centered in the Medford area (Oregon Center for Population Research 
and Census, pers. comm. 1998). Much of this development has occurred in 
and around Lomatium cookii and Limnanthes floccosa ssp. grandiflora 
habitat near Medford and White City.
    A recent habitat assessment map and report (ONHP 1997) indicates 
that residential, commercial, and industrial development, along with 
land leveling, have claimed nearly 60 percent of the historic Agate 
Desert vernal pool landscape. According to this assessment, no pristine 
vernal pool habitat remains due to the presence of introduced plants 
throughout the Agate Desert. The highest quality remaining vernal pool 
habitat occurs on 23 percent of the landform. By overlaying ONHP plant 
occurrence polygons on the habitat assessment base map, one can 
determine that over 50 percent of Lomatium cookii sites and nearly 50 
percent of Limnanthes floccosa ssp. grandiflora sites originally mapped 
in the Agate Desert during the 1980's have been severely altered. While 
most of these sites were altered prior to the 1980's (D. Borgias, pers. 
comm. 1999), habitat alterations in the Agate Desert are continuing at 
a rapid rate, as indicated by numerous examples below.
    In 1992, a sewage line was built by the City of Medford across the 
southwest corner of the Cardinal Avenue site in the Agate Desert. A 
large department store was built on land adjacent to this site. The 
Cardinal Avenue site is proposed for inclusion in the Foreign Trade 
Zone at the Medford-Jackson County Airport, and development on the 1.2-
ha (3-ac) site is very likely (Gerald Anderson, Medford City Manager, 
pers. comm. 1998). The Cardinal Avenue site, with a population of 
approximately 140 Lomatium cookii individuals, was graded in January 
1993 (J. Kagan, pers. comm. 1998). The landowner was contacted by TNC 
to request permission to remove some plants for experimental 
transplantation. The landowner agreed to allow removal of the plants, 
but TNC was able to obtain only one individual prior to completion of 
grading and was unable to successfully transplant the individual (D. 
Borgias, pers. comm. 1999).
    In 1986, private lands with 4 ha (10 ac) of Lomatium cookii habitat 
and some 500 individual plants were developed into a sports park 
complex by Jackson County with Federal Land and Water Conservation 
Funds. The area was leveled, and playing fields and parking lots were 
constructed. Approximately 80 percent of the available habitat was 
removed at this site. Inventory of this population in 1992 documented 
150 plants at this site (Kagan 1987). Based on preliminary surveys in 
1997, these plants may have been extirpated (J. Kagan, pers. comm. 
1998).
    Another project related to increased development of the Agate 
Desert area and that resulted in adverse affects to Lomatium cookii and 
Limnanthes floccosa ssp. grandiflora habitat is a 500-kilovolt 
powerline that Pacific Power and Light constructed in June 1992 (Gerald 
Nielsen, Pacific Power Co., pers. comm. 1992). The powerline directly 
affected 7.5 ha (18.5 ac) out of a total of 80 ha (198 ac), or 9.3 
percent of the existing L. f. ssp. grandiflora habitat in the Agate 
Desert. About 2.6 ha (6.4 ac), or 4.8 percent of the existing L. cookii 
habitat, was affected in the Agate Desert. Maintenance activities along 
the powerline corridor may continue to adversely impact L. cookii and 
L. f. ssp. grandiflora habitat.
    Two sites where Limnanthes floccosa ssp. grandiflora was collected 
in 1969 have been destroyed, one by construction of a mill, and another 
by construction of a large industrial plant (J. Kagan, pers. comm. 
1997). Additional sites of L. f. ssp. grandiflora occurrences (50 
percent of the total extant) have been severely degraded as follows (J. 
Kagan, pers. comm. 1998): (1) One site, at the intersection of three 
major roads, has been reduced to a few fragmented patches. The site is 
now bordered by two fast-food restaurants, a powerline, and residential 
development, leaving virtually no opportunity for conservation. (2) 
Another site occurs at the corner of a building adjacent to railroad 
tracks and has been reduced to approximately 5 square meters (54 square 
feet), leaving no avenue for site conservation. (3) A sewer plant for 
the City of Medford has reduced the type locality for this taxon to two 
small pools. (4) In 1985, L. f. ssp. grandiflora was estimated to cover 
some 16 ha (40 ac) at one of two occurrences of L. f. ssp. grandiflora 
on Denman Wildlife Area, since then the site has been leveled and 
scraped for planting tall wheatgrass as wildlife food, as a result by 
1993, coverage had been reduced to 1.2 ha (3 ac), a 92 percent 
reduction. (5) More recently, over two-thirds of the second site found 
on Denman Wildlife Area

[[Page 30945]]

(29.5 ha (73 ac) in size) has been leveled, grazed, and piped for 
irrigation.
    In the early 1990's, a proposed highway connector between 
Interstate 5 and Highway 140 across the Agate Desert would have 
impacted a number of occurrences of both Lomatium cookii and Limnanthes 
floccosa ssp. grandiflora. Although that specific project is no longer 
under consideration, the Oregon Department of Transportation (ODOT) is 
currently considering a number of alternatives for moving traffic 
through the area, some of which could impact vernal pools. The vernal 
pools that are not directly impacted by the highway project are often 
impacted by projects that result from increased access to the area, 
such as industrial and residential development.
    The only Lomatium cookii and Limnanthes floccosa ssp. grandiflora 
habitat protected from industrial, residential, or commercial 
development in the Agate Desert area is the habitat located on the 
Preserve managed by TNC for the protection of these species. 
Approximately 7 ha (17 ac) of L. cookii habitat and 16.7 ha (41.2 ac) 
of L. f. ssp. grandiflora habitat exist on the Preserve.
    The Preserve, supporting the largest populations of Lomatium cookii 
and Limnanthes floccosa ssp. grandiflora, is located in an area that 
may soon be surrounded by commercial and industrial developed land. 
Although the Preserve land is protected, the alteration of land 
adjacent to the Preserve could disrupt the hydrologic processes within 
the Preserve. For example, a road was built along the southern edge of 
the Preserve in 1988. Water runs off the road into a ditch after 
rainstorms, where it would have normally remained in pools in the 
Preserve. This ditch drained several of the vernal pools on the 
southern portion of the Preserve, further reducing approximately 0.2 ha 
(0.5 ac) of vernal pools available to L. cookii and L. f. ssp. 
grandiflora in the Preserve (J. Kagan, pers. comm. 1998). In addition, 
potential habitat that borders the west side of the Preserve was 
partitioned and developed into industrial property in January 1993 (J. 
Kagan, pers. comm. 1998). Hydrology and available management (e.g., 
prescribed burning) were also altered by the development. During 
development of land west of the Preserve, land-moving equipment 
trespassed onto a portion of the Preserve. At the time, vernal pools on 
the Preserve had no fences or physical barriers to prevent trespass by 
ORVs or land-moving equipment (D. Borgias, pers. comm. 1998).
    To summarize these plants' status in the Agate Desert, Limnanthes 
floccosa ssp. grandiflora is presently declining at seven of its ten 
known occurrences, and its status is unknown at two additional sites 
and is known to be stable at only one site. Populations of Lomatium 
cookii are declining at 11 of the 13 known occurrences in the Agate 
Desert. Habitat originally mapped for these species in the Agate Desert 
totals some 54 ha (133 ac) for L. cookii and 80 ha (198 ac) for L. f. 
ssp. grandiflora (ONHP Database 1998). However, habitat currently 
occupied by these plants is considerably less, an estimated 28 ha (69 
ac) and 47 ha (116 ac) for L. cookii and L. f. ssp. grandiflora, 
respectively (ONHP Database 1998). Thus, the current ranges of both 
species are roughly 50 percent less than the area of historical habitat 
in the Agate Desert.
    Occurrences of Lomatium cookii in Josephine County are also subject 
to numerous threats. The only habitat for this plant on federally owned 
land is located near French Flat, which is managed by BLM. Gold mining 
operations threaten approximately 10 percent of the federally owned 
portion of this habitat. Approximately 600 plants occur in the area 
threatened by mining. Mining activities could result in direct habitat 
loss for the species and limit recovery at this site.
    Indirect effects from mining operations in French Flat could also 
occur due to off-site activities, such as road construction, which are 
likely to alter hydrologic cycles at Lomatium cookii habitat sites. 
These changes could cause seasonally saturated soils to drain and could 
impede seed germination or lead to death of seedlings and mature 
plants. Currently, no safeguards exist to protect habitat in the French 
Flat area from mining operations.
    Habitat for Lomatium cookii on BLM-managed land at French Flat 
continues to experience damage from ORV use. In 1992, ORV use damaged a 
large wet meadow in this area, creating ruts that punctured the clay 
pan layer and allowed soil moisture to drain from the wet meadow 
habitat. Heavy ORV use of L. cookii habitat in the area is continuing. 
To date, ORV use has caused puncturing and draining of 6 ha (15 ac) of 
meadow habitat in the French Flat population. As a result, 20 percent 
of the remaining L. cookii habitat on federally managed land has been 
destroyed. The BLM intends to gate part of the area to discourage ORV 
trespass, but restricting access to this large, open area is difficult 
(Linda Mazzu, BLM, pers. comm. 1998; J. Seevers, pers. comm. 1998). If 
recently proposed mining actions on BLM lands are implemented, habitat 
destruction would be substantially increased beyond 20 percent.
    Lomatium cookii occurrences in French Flat are also threatened by a 
timber sale presently under consideration by BLM. Additionally, one 
recently discovered occurrence at Indian Hill, which is in a long, 
narrow meadow, is threatened by encroachment of woody species from the 
surrounding forest. Fire suppression activities have caused an increase 
in the invasion of trees and shrubs that shade out L. cookii plants and 
decrease available water (L. Mazzu, pers. comm. 1998).
    Residential development and road building in the Illinois Valley 
also threaten populations of Lomatium cookii. For example, construction 
of a residential driveway and roto-tilling on private ground extirpated 
a Josephine County population of this species in 1991 (J. Kagan, pers. 
comm. 1998).
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. Lomatium cookii and Limnanthes floccosa ssp. 
grandiflora have no known commercial, recreational, or scientific use 
at this time. No evidence exists of overcollection by botanists and/or 
horticulturists at this time. However, Limnanthes floccosa ssp. 
grandiflora may be of interest to collectors and researchers; some 
members of the genus have the potential to become important new crop 
plants because they possess a seed oil that exhibits stability at high 
temperature and pressure. This oil could be used as a lubricant for 
various industrial uses (University of California-Davis 1998). 
Limnanthes alba, a wildflower found in California, is now poised to 
become a multimillion dollar crop in the Willamette Valley of Oregon 
for its oil (Savonen 1997). To domesticate the species and improve 
strains, seeds were, and still are, collected from wild L. alba, as 
well as other Limnanthes species to cross with the domesticated plants. 
Limnanthes floccosa ssp. grandiflora could have this potential, though 
no known research has been conducted on this subject. This species may 
be sought for collection if its rarity and population locations become 
well known. Vandalism or intentional destruction also could occur. Most 
of the remaining populations of the species are so small, and their 
distribution so limited, that even limited collecting pressure could 
have significant adverse impacts.
    Eighty-three percent of Lomatium cookii occurrences and 40 percent 
of Limnanthes floccosa ssp. grandiflora occurrences are concentrated on 
2 ha (5 ac) of land or less. Easy access exists to

[[Page 30946]]

occurrences of these plants in the Agate Desert, and to L. cookii sites 
near Cave Junction, since they occur near heavily traveled roads. Most 
sites for these species lack fences or appropriate signs to discourage 
collectors or others from accessing the sites.
    C. Disease or predation. No data exist to substantiate whether 
disease threatens Lomatium cookii or Limnanthes floccosa ssp. 
grandiflora. An unidentified Ascomycete fungus was responsible for the 
mortality of four L. cookii plants in a single population (Kagan 1987). 
Since this fungus has not been observed at other sites, no conclusions 
can be drawn regarding the threat of the fungus to the species as a 
whole. Predation has been observed on L. cookii from gophers, other 
rodents, and black-tailed jackrabbits feeding on vegetative portions; 
wireworms and other insect larvae eat the roots of plants, and insects 
prey on L. cookii seeds (Kagan 1987).
    Cattle grazing causes substantial impacts to Lomatium cookii and 
Limnanthes floccosa ssp. grandiflora. Tracts heavily grazed from 
October to April are less likely to support these taxa. The majority of 
the seasonal growth occurs during the winter. If the plants are grazed 
during fall and winter, they are less likely to survive to produce seed 
in the spring or early summer (Brock 1987).
    The effects of cattle grazing on Lomatium cookii and Limnanthes 
floccosa ssp. grandiflora are exemplified by the history of land use on 
what is now TNC's Agate Desert Preserve. Prior to TNC's acquisition of 
this tract, the area was grazed for a number of years. An estimated 480 
individuals of L. f. ssp. grandiflora were noted at this site between 
1984 and 1987. Cattle were removed in 1987, and in 1988, the L. f. ssp. 
grandiflora population had soared to over 7,000 individuals. By 1991, 
the population had grown to an estimated 17,600 plants, and it is now 
stable or increasing (D. Borgias, pers. comm. 1998). Despite the 
potential negative effects of fall to spring cattle grazing, carefully 
managed and timed grazing may actually reduce competition with 
introduced grass species (see Factor E of this section).
    D. The inadequacy of existing regulatory mechanisms. The majority 
of Lomatium cookii and all Limnanthes floccosa ssp. grandiflora plants 
grow in association with vernal pools, which are classified as 
wetlands. Under section 404 of the Clean Water Act, the U.S. Army Corps 
of Engineers (Corps) regulates the discharge of dredged or fill 
material into waters of the United States, including wetlands (33 CFR 
parts 320-330). To be in compliance with the Clean Water Act, parties 
are generally required to notify the Corps prior to undertaking any 
activity that would result in the discharge of fill, including soil, 
into wetlands under the Corps' jurisdiction. An individual permit is 
required in many cases. The Nationwide Permit Program (33 CFR part 330) 
was designed to eliminate the need for individual permits for some 
activities. Nationwide Permit Number 26, as conditioned by the Portland 
District of the Corps for application within the State of Oregon, 
allows the discharge of fill affecting up to only 0.8 ha (2 ac) of 
wetlands, if the wetlands are isolated or above the headwater point of 
a stream (average annual flow of less than 0.14 cubic meters per second 
(5 cubic feet per second). Also, the permittee must notify the Corps 
prior to discharge and comply with the terms and conditions of the 
nationwide permit. Fills affecting less than 0.13 ha (0.32 ac) do not 
require Corps notification. However, the Corps is aware of the 
sensitivity of the Agate Desert vernal pools and may require individual 
permits on a case-by-case basis. The Clean Water Act does not regulate 
drainage of wetlands unless that action results in the discharge of 
dredged or fill material into a wetland.
    Most Lomatium cookii and Limnanthes floccosa ssp. grandiflora sites 
occupy wetlands less than 2 ha (5 ac) in size, often in wetlands with 
no surface drainage to streams (i.e., isolated). Therefore, activities 
resulting in the filling of vernal pools often fall under Nationwide 
Permit Number 26. Currently, the Corps is not required to request 
consultation under section 7 of the Act on fill activities that may 
affect L. cookii, L. f. ssp. grandiflora, or other unlisted species. If 
L. cookii and L. f. ssp. grandiflora are listed, consultation with us 
would be required by the Nationwide Permit conditions prior to the 
Corps authorization of an activity that would adversely affect the 
species. The Portland District has issued General Regulatory Conditions 
that accompany all nationwide permits. One of these conditions 
indicates that if at any time the permittee becomes aware of the 
presence of a listed species within the authorized project area, all 
work activity must cease immediately, the Corps must be notified, and 
work must not resume until approved by the Corps. If L. cookii and L. 
f. ssp. grandiflora are listed, these regulatory conditions would apply 
to the seasonal wetlands these species occupy.
    State of Oregon wetland laws do not protect many Lomatium cookii or 
Limnanthes floccosa ssp. grandiflora sites due to their small size. The 
Removal-Fill Law of 1989 (ORS 196.800-196.990), administered by the 
Oregon Division of State Lands, does not regulate activities that 
involve less than 38 cubic meters (m\3\) (50 cubic yards (yd\3\)) of 
fill. Such an amount of fill could seriously impact many smaller vernal 
pool wetlands in which L. cookii and L. f. ssp. grandiflora occur.
    Lomatium cookii and Limnanthes floccosa ssp. grandiflora are listed 
as endangered species under the State of Oregon threatened or 
endangered plant law (OAR 603-73-070). In general, State-listed plant 
populations on private lands are not subject to this law. The law 
prohibits the ``take'' of State-listed plants only on State, county, 
and city-owned or leased lands. And on these lands, the State law does 
not guarantee the protection of State-listed plants because it allows 
for the loss of populations if a proposed project or activity is 
considered to be a public benefit (Tom Kaye, Oregon State University, 
pers. comm. 1999). Because Lomatium cookii is listed as a Federal 
candidate, lands owned by the BLM will seek to provide a protection 
buffer when a plant population may be impacted by a proposed project 
(e.g., mining permit) (L. Mazzu, pers. comm. 1999).
    E. Other natural or manmade factors affecting its continued 
existence. Herbicide spraying, mowing, grading, and other road 
maintenance activities threaten small Lomatium cookii sites adjacent to 
roads on private lands near Cave Junction in the Illinois Valley. In 
the Agate Desert, L. cookii and Limnanthes floccosa ssp. grandiflora 
individuals in road or powerline rights-of-way could be accidentally 
destroyed by local public works departments, highway districts, fire 
departments, or private citizens when carrying out maintenance 
activities (Rose Hayden-Owens, ODOT, pers. comm. 1998).
    Invasion of nonnative annual plants in the Agate Desert altered 
native perennial plant communities (Brock 1987) where Lomatium cookii 
and Limnanthes floccosa ssp. grandiflora grow. Native bunch grasses on 
mounds between vernal pools have been replaced by introduced European 
grasses such as Bromus mollis (brome grass), Taeniatherum caput-medusae 
(medusahead), Cynosurus echinatus (dogtail), and Poa bulbosa 
(bluegrass). Taeniatherum caput-medusae competes with L. cookii and L. 
f. ssp. grandiflora on seasonally wet mounds between the pools. Seeds 
of both the native taxa are not able to germinate under the dense 
thatch produced by introduced annual species. Competition with 
introduced plant species is exacerbated on the Denman Wildlife Area, 
where game bird

[[Page 30947]]

food plots are seeded with nonnative plant species. Brock (1987) 
supports the contention that the main cause of the reduction of L. 
cookii populations has been intensive cattle grazing accompanied by the 
negative competitive effects of introduced grasses, specifically T. 
caput-medusae.
    Mowing, burning, light grazing, or even raking of vernal pool 
habitat after Lomatium cookii and Limnanthes floccosa ssp. grandiflora 
seeds have matured, but before the fall growth period, may help reduce 
plant cover from exotic annual plants (Brock 1987). In a small 
experiment conducted on the Preserve, germination and seedling 
survivorship of the rare plants was increased on plots that were raked, 
as compared with untreated, or raked and scarified plots (D. Borgias, 
pers. comm. 1998).
    Catastrophic events, such as fire, could eliminate the large 
occurrences of Lomatium cookii and Limnanthes floccosa ssp. grandiflora 
located on the Preserve (J. Kagan, pers. comm. 1998). Demographic 
extinction is possible for nine other occurrences of L. cookii, mostly 
in the French Flat area, because of their small size (fewer than 100 
plants). Many of the known French Flat sites are found directly 
adjacent to roads, increasing the possibility of extirpation.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by Lomatium cookii and Limnanthes floccosa ssp. grandiflora in 
determining to propose this rule. These species occupy an extremely 
restricted geographic range, with roughly 80 ha (200 ac) and 47 ha (116 
ac) of known occupied habitat for L. cookii and L. f. ssp. grandiflora, 
respectively. The majority of these plants' remaining occupied habitat 
is threatened by commercial, industrial, and residential development; 
road and utilities construction and maintenance, including herbicide 
spraying; leveling for agriculture or pasture; ill-timed grazing or 
mowing; competition with introduced plants; mining; ORV use; certain 
timber sale activities; encroachment of trees and shrubs associated 
with fire suppression; and random natural events. Based on this 
evaluation, the preferred action is therefore to propose the listing of 
L. cookii and L. f. ssp. grandiflora as endangered species. Other 
alternatives to this action were considered but not preferred because 
not listing or listing as threatened would not be consistent with the 
Act.

Critical Habitat

    Critical habitat is defined in section 3, paragraph (5)(A) of the 
Act as 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 essential to the 
conservation of the species and which may require special management 
considerations or protection; and specific areas outside the 
geographical area occupied by the species at the time it is listed in 
accordance with the provisions of section 4 of the Act, upon a 
determination by the Secretary 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.
    Critical habitat designation, by definition, directly affects only 
Federal agency actions through consultation under section 7(a)(2) of 
the Act. 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 a listed species or destroy or 
adversely modify its critical habitat.
    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, we designate critical habitat at the time the species 
is determined to be endangered or threatened. Our regulations (50 CFR 
424.12(a)(1)) state that the designation of critical habitat is not 
prudent when one or both of the following situations exist--(1) the 
species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species.
    The Final Listing Priority Guidance for FY 1999/2000 (64 FR 57114) 
states that the processing of critical habitat determinations (prudency 
and determinability decisions) and proposed or final designations 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.
    We propose that critical habitats designations are prudent for both 
Lomatium cookii and Limnanthes floccosa ssp. grandiflora. 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 believe that designation of critical habitat would be 
prudent for both L. cookii and L. f. ssp. grandiflora.
    Due to the small number of populations both, Lomatium cookii and 
Limnanthes floccosa ssp. grandiflora are vulnerable to unrestricted 
collection, vandalism, or other disturbance. We are concerned that 
these threats might be exacerbated by the publication of critical 
habitat maps and further dissemination of locational information. 
However, at this time we do not have specific evidence for either 
Lomatium cookii or Limnanthes floccosa ssp. grandiflora 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 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

[[Page 30948]]

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 propose that critical 
habitat is prudent for both Lomatium cookii and Limnanthes floccosa 
ssp. grandiflora. However, the deferral of the critical habitat 
designation for these species will 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 both L. cookii and L. 
f. ssp. grandiflora 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 these 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 make the 
final critical habitat determination with the final listing 
determination for both Lomatium cookii and Limnanthes floccosa ssp. 
grandiflora. If this final critical habitat determination is that 
critical habitat is prudent, we will develop a proposal to designate 
critical habitat for both Lomatium cookii and Limnanthes floccosa ssp. 
grandiflora 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.

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 results in public awareness and 
conservation actions by Federal, State, and local agencies, private 
organizations, and individuals. The Act provides for possible land 
acquisition and cooperation with the States and requires that recovery 
actions be carried out for all listed species. The protection required 
of Federal agencies and the prohibitions against certain activities 
involving listed plants are discussed, in part, below.
    Section 7(a) of the Act, requires Federal agencies to evaluate 
their actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is being designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) of the Act requires Federal agencies to confer with 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 destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency must enter into 
consultation with us.
    Seven occurrences of Lomatium cookii exist on Federal land managed 
by the BLM. Should this species be listed, BLM actions that may affect 
the species (including permits governing mining activities) would be 
subject to section 7 of the Act. BLM has conducted some conservation 
actions for L. cookii, including regular surveys of certain sites and 
attempts to exclude ORVs from vulnerable populations (L. Mazzu, pers. 
comm. 1998). The Federal Aviation Administration could be involved in 
section 7 consultation on the Medford Airport project. In areas that 
presently support L. cookii or Limnanthes floccosa ssp. grandiflora, 
housing loans insured by the Department of Housing and Urban 
Development could be subject to consultation.
    The Corps has been involved with vernal pool protection through its 
permitting authority under section 404 of the Clean Water Act. By 
regulation, Corps permits may not be issued where a federally listed 
endangered or threatened species may be affected by the proposed 
project without first completing consultation pursuant to section 7 of 
the Act. Due to the recent discovery of the threatened vernal pool 
fairy shrimp in the Agate Desert, consultation will now be required for 
wetland fills in the area. Consultation would also be required for the 
two plants that are the subject of this rulemaking, should they be 
listed.
    In 1997, the Oregon Department of Corrections was considering 
placing a new prison facility in the Agate Desert area (D. Borgias, 
pers. comm. 1999). One of the potential locations for this facility 
would have impacted a number of extant Lomatium cookii and Limnanthes 
floccosa ssp. grandiflora sites. This location was not chosen. However, 
any further developments of this nature requiring Federal involvement 
would require consultation pursuant to section 7 of the Act for the 
vernal pool fairy shrimp, and for the two plants that are the subject 
of this proposed rulemaking, should they be listed.
    With regard to recovery, Lomatium cookii and Limnanthes floccosa 
ssp. grandiflora plants in the Agate Desert may be able to repopulate a 
site that was disturbed, if the hard pan soil layer and the historical 
or otherwise appropriate hydrologic patterns remain intact. These 
plants may also be able to repopulate historical habitat naturally, if 
a sufficient amount of seed remains in the soil and young plants are 
not grazed or sprayed (J. Kagan, pers. comm. 1998). For example, L. 
cookii appears to have repopulated the Antelope Road site after the 
area was leveled in the 1940's. Plant numbers at this site, however, 
decreased from 1,000 in 1987 to 500 in 1992. The reason for this 
decline is unknown. The Avenue H site was leveled in 1954 but the site 
was repopulated because the hard pan layer was not disturbed, thus 
allowing soil moisture to remain sufficiently high. Plant counts at 
this site also decreased from approximately 14,000 in 1987 to 6,000 in 
1992, again for unknown reasons (J. Kagan, pers. comm. 1998). Any 
proposed habitat creation or restoration work for these plants would 
require careful planning prior to implementation, and close monitoring 
thereafter.
    The Oregon Department of State Parks has undertaken protective 
measures for the Lomatium cookii site that occurs on park property. The 
Department recently fenced the entrance road to exclude ORV use from 
areas near the road where this rare plant occurs. The Departments 
proposed plans for a campground in the area will be designed to protect 
this rare plant (M. Stenberg, pers. comm. 1998).
    Listing these two plants would provide for development of a 
recovery plan (or plans). Such plan(s) would bring together both State 
and Federal efforts for conservation of the plants. The plan(s) would 
establish a framework for agencies to coordinate activities and 
cooperate with each other in conservation efforts. The plan(s)

[[Page 30949]]

would set recovery priorities and estimate costs of various tasks 
necessary to accomplish them. The plan(s) also would describe site-
specific management actions necessary to achieve conservation and 
survival of the two plants. Additionally, pursuant to section 6 of the 
Act, we would be able to grant funds to the State of Oregon for 
management actions promoting the protection and recovery of these 
species.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
plants. All prohibitions of section 9(a)(2) of the Act, implemented by 
50 CFR 17.61, for endangered plants, apply. These prohibitions, in 
part, make it illegal for any person subject to the jurisdiction of the 
United States to import or export, transport in interstate or foreign 
commerce in the course of a commercial activity, sell or offer for sale 
in interstate or foreign commerce, or remove and reduce to possession 
from areas under Federal jurisdiction any such plant. In addition, the 
Act prohibits malicious damage or destruction on areas under Federal 
jurisdiction and the removal, cutting, digging up, or damaging or 
destroying of such plants in knowing violation of any State law or 
regulation, or in the course of 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. Such permits are available for scientific 
purposes and to enhance the propagation or survival of the species. We 
anticipate that few trade permits would ever be sought or issued 
because these plants are not in cultivation or common in the wild.
    As published in the Federal Register on July 1, 1994 (59 FR 34272), 
it is our policy 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 this listing on 
proposed and ongoing activities within the species' range. Limnanthes 
floccosa ssp. grandiflora is not presently known to occur on Federal 
land, although two occurrences are known from the vicinity of Table 
Rock, where BLM manages some land. Lomatium cookii is known to occur on 
lands under the jurisdiction of the BLM.
    We believe that, based upon the best available information, the 
following actions affecting these plants on Federal property would not 
likely 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 (e.g., livestock grazing, 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 us 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 or involve 
Federal funding, permits, or authorization, such as livestock grazing, 
agricultural conversions, flood and erosion control, residential 
development, road construction, and pesticide/herbicide application 
when consistent with label restrictions; and
    (4) Residential landscape maintenance (including irrigation) and 
the clearing of vegetation around one's personal residence as a 
firebreak.
    We believe that the following actions could 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; and
    (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 would constitute a 
violation of section 9 should be directed to the State Supervisor of 
our Oregon State Office (see ADDRESSES section).
    Requests for copies of the regulations regarding listed plants and 
inquiries regarding prohibitions and permits may be addressed to the 
U.S. Fish and Wildlife Service, Ecological Services, Endangered Species 
Permits, 911 N.E. 11th Avenue, Portland, Oregon, 97232-4181 (telephone 
503/231-2063; facsimile 503/231-6243).

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule. Comments are particularly sought 
concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to Lomatium cookii or Limnanthes floccosa 
ssp. grandiflora; 
    (2) The location of any additional occurrences of L. cookii or L. 
f. ssp. grandiflora and the reasons why any habitat of these species 
should or should not be determined to be critical habitat pursuant to 
section 4 of the Act;
    (3) Additional information concerning the range, distribution, and 
population size of these species; and
    (4) Current or planned activities in the subject areas, including 
possible mining operations on federally managed land, and their 
possible impacts on L. cookii or L. f. ssp. grandiflora.
    A final determination on Lomatium cookii and Limnanthes floccosa 
ssp. grandiflora will take into consideration the comments and any 
additional information received by us, and such communications may lead 
to a final determination that differs from this proposal.
    You may submit comments and materials on this proposal should in 
person or by mail to: Field Supervisor, U.S. Fish and Wildlife Service, 
Oregon State Office, 2600 S.E. 98th Avenue, Portland, Oregon 97266. 
Alternatively, you may send comments via the Internet to 
<a href="/cdn-cgi/l/email-protection#b4d8dbd8ddf4c6859ad2c3c79ad3dbc2"><span class="__cf_email__" data-cfemail="25494a494c6557140b4352560b424a53">[email protected]</span></a>. Please submit Internet comments as an ASCII file 
avoiding the use of special characters and any form of encryption. 
Please also include ``Attn: RIN 1018-AF84'' and your name and return 
address in your Internet message. If you do not receive a confirmation 
from the system that we have received your Internet message, please 
contact us directly by calling our Oregon State Office at phone number 
503-231-6179. Please note that the Internet address ``<a href="/cdn-cgi/l/email-protection#1e727172775e6c2f3078696d30797168"><span class="__cf_email__" data-cfemail="f19d9e9d98b183c0df978682df969e87">[email protected]</span></a>'' 
will be closed out at the termination of the public comment period.
    Comments and materials received, will be available for public 
inspection, by appointment, during normal business hours at the above 
address. Our practice is to make comments, including names and home 
addresses of respondents, available for public review. We will make all 
submissions from

[[Page 30950]]

organizations or businesses, and from individuals representing 
organizations or businesses, available for public inspection in their 
entirety. We will not consider anonymous comments. However, individual 
respondents may request that we withhold their home address, and under 
certain circumstances, their identity, from the rulemaking record. We 
will honor such requests to the extent allowable by law. If you wish us 
to withhold your name and/or address, please state this prominently at 
the beginning of your comment.
    The Act provides for one or more public hearings on this proposal, 
if requested. Requests must be received within 45 days of the date of 
publication of the proposal in the Federal Register. Such requests must 
be made in writing and be addressed to the State Supervisor, U.S. Fish 
and Wildlife Service, Oregon State Office (see ADDRESSES section).

National Environmental Policy Act

    We have determined that environmental assessments, 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, as amended. We published a notice outlining 
our reasons for this determination in the Federal Register on October 
25, 1983 (48 FR 49244).

Executive Order 12866

    Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to 
make this regulation easier to understand, including answers to 
questions such as the following--(1) Are the requirements in the 
regulation clearly stated? (2) Does the regulation contain technical 
jargon that interferes with the clarity? (3) Does the format of the 
regulation (grouping and order of the sections, use of headings, 
paragraphing, etc.) aid or reduce its clarity? (4) Is the description 
of the regulation in the SUPPLEMENTARY INFORMATION section of the 
preamble helpful in understanding the regulation? What else could we do 
to make this regulation easier to understand?

Required Determinations

    This rule does not contain any information collection requirements 
for which Office of Management and Budget (OMB) approval under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is required. Any 
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 endangered plants, see 50 CFR 17.62 and 
17.63.

References Cited

    A complete list of all references cited in this document is 
available upon request from the State Supervisor, Oregon State Office 
(see ADDRESSES section).
    The authors of the proposed rule to list Lomatium cookii are 
Marilyn Hemker, U.S. Fish and Wildlife Service, Boise Field Office, 
1387 South Vinnell Way, Room 368, Boise, Idaho 83709 (telephone 208/
378-5243), and Judy Jacobs, U.S. Fish and Wildlife Service, Oregon 
State Office (see ADDRESSES section). The author of the proposal to 
list Limnanthes floccosa ssp. grandiflora is Judy Jacobs.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    For the reasons given in the preamble, we propose to amend part 17, 
subchapter B of chapter I, title 50 of the Code of Federal Regulations, 
as set forth below:

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. Section 17.12(h) is amended 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) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name                Common name                                                                               habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                   *                  *                  *                  *                  *                  *                  *
Limnanthes floccosa ssp.           Large-flowered wooly  U.S.A. (OR)........  Limnanthaceae......  E               ...........           NA           NA
 grandiflora.                       meadowfoam.
 
                   *                  *                  *                  *                  *                  *                  *
Lomatium cookii..................  Cook's lomatium.....  U.S.A. (OR)........  Apiaceae...........  E               ...........           NA           NA
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------



[[Page 30951]]

    Dated: April 12, 2000.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 00-12123 Filed 5-12-00; 8:45 am]
BILLING CODE 4310-55-P


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