Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Proposed Rules 30941

(2) From 10 p.m. to 6 a.m., the draw

shall open on signal if at least two hours

notice is given.

* * * * *

Dated: May 3, 2000.

Thomas E. Bernard,

Captain, U.S. Coast Guard, Acting

Commander, Fifth Coast Guard District.

[FR Doc. 00–12147 Filed 5–12–00; 8:45 am]

BILLING CODE 4830–01–P

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 (LargeFlowered Wooly Meadowfoam) in

Oregon

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule.

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

loli@r1.fws.gov. 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 boatshaped 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

30942 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Proposed Rules

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 (mi2))

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 km2

(50 mi2), 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

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Proposed Rules 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 (largeflowered 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

30944 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Proposed Rules

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 MedfordJackson 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

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Proposed Rules 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, landmoving 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 BLMmanaged 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 CaliforniaDavis 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

30946 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Proposed Rules

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 (m3) (50 cubic

yards (yd3)) 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 cityowned 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 rightsof-way could be accidentally destroyed

by local public works departments,

highway districts, fire departments, or

private citizens when carrying out

maintenance activities (Rose HaydenOwens, 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

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Proposed Rules 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

30948 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Proposed Rules

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)

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Proposed Rules 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 loli@r1.fws.gov. 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 ‘‘loli@r1.fws.gov’’ 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

30950 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Proposed Rules

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:

§ 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

Species

Historic range Family Status When listed Critical

habitat

Special

rules Scientific name Common name

FLOWERING PLANTS

*******

Limnanthes floccosa

ssp. grandiflora.

Large-flowered

wooly

meadowfoam.

U.S.A. (OR) ............ Limnanthaceae ....... E .................... NA NA

*******

Lomatium cookii ....... Cook’s lomatium ..... U.S.A. (OR) ............ Apiaceae ................. E .................... NA NA

*******

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Proposed Rules 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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AF98

Endangered and Threatened Wildlife

and Plants; Reopening of Comment

Period on Proposed Determination of

Critical Habitat for the Alameda

Whipsnake (Masticophis lateralis

euryxanthus)

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule; reopening of

comment period and notice of public

hearing.

SUMMARY: The U.S. Fish and Wildlife

Service (Service) gives notice of a public

hearing on the proposed rule to

designate critical habitat for the

threatened Alameda whipsnake

(Masticophis lateralis euryxanthus). In

addition, the comment period which

originally closed on May 8, 2000, will

be reopened. The new comment period

and hearing will allow all interested

parties to submit oral or written

comments on the proposal. We are

seeking comments or suggestions from

the public, other concerned

governmental agencies, the scientific

community, industry, or any other

interested parties concerning the

proposed rule. Comments already

submitted on the proposed rule need

not be resubmitted as they will be fully

considered in the final determination.

DATES: The comment period for this

proposal now closes on June 12, 2000.

Any comments received by the closing

date will be considered in the final

decision on this proposal. The public

hearing will be held from 1:00 p.m. to

3:00 p.m. and from 6:00 p.m. to 8:00

p.m. on June 1, 2000, in San Ramon,

California.

ADDRESSES: The public hearing will be

held at the San Ramon Marriott, 2600

Bishop Drive, Salon E, San Ramon,

California. Comments and materials

concerning this proposal should be sent

to the Field Supervisor, Sacramento

Fish and Wildlife Office, U.S. Fish and

Wildlife Service, 2800 Cottage Way,

Suite W–2605, Sacramento, California

95825. Comments and materials

received will be available for public

inspection, by appointment, during

normal business hours at the above

address.

FOR FURTHER INFORMATION CONTACT:

Jason Davis or Heather Bell, at the above

address, phone 916–414–6600, facsimile

916–414–6710.

SUPPLEMENTARY INFORMATION:

Background

On March 8, 2000, the Service

published a proposed rule to designate

critical habitat for the threatened

Alameda whipsnake in the Federal

Register (65 FR 12155). The original

comment period closed on May 8, 2000.

The comment period now closes on

June 12, 2000. Written comments

should be submitted to the Service (see

ADDRESSES section).

A total of approximately 164,663

hectares (406,708 acres) of land fall

within the boundaries of the proposed

critical habitat designation. Proposed

critical habitat is located in Contra

Costa, Alameda, San Joaquin, and Santa

Clara counties, California. If this

proposal is made final, section 7 of the

Act prohibits destruction or adverse

modification of critical habitat by any

activity funded, authorized, or carried

out by any Federal agency. Section 4 of

the Act requires us to consider

economic and other impacts of

specifying any particular area as critical

habitat.

Section 4(b)(5)(E) of the Act (16 U.S.C.

1531 et seq.), requires that a public

hearing be held if it is requested within

45 days of the publication of a proposed

rule. In response to three such requests,

the Service will hold a public hearing

on the date and at address described in

the DATES and ADDRESSES sections

above.

Anyone wishing to make an oral

statement for the record is encouraged

to provide a written copy of their

statement and present it to the Service

at the hearing. In the event there is a

large attendance, the time allotted for

oral statements may be limited. Oral and

written statements receive equal

consideration. There are no limits to the

length of written comments presented at

the hearing or mailed to the Service.

Legal notices announcing the date, time,

and location of the hearing will be

published in newspapers concurrently

with the Federal Register notice.

Comments from the public regarding

the accuracy of this proposed rule are

sought, especially regarding:

(1) The location of any additional

populations of Alameda whipsnakes

and the reasons why any habitat should

or should not be determined to be

critical habitat;

(2) Additional information regarding

the validity of the primary constituent

elements described in the proposed

rule; and (3) Additional information

regarding areas that may be essential as

travel corridors for connecting

individual Alameda whipsnake

populations.

Reopening of the comment period

will enable the Service to respond to the

request for a public hearing on the

proposed action. The comment period

on this proposal now closes on June 12,

2000. Written comments should be

submitted to the Service office listed in

the ADDRESSES section.

Author

The primary authors of this notice are

Jason Davis and Heather Bell (see

ADDRESSES section).

Authority

The authority for this action are the

Endangered Species Act of 1973 (16

U.S.C. 1531 et seq.).

Dated: May 2, 2000.

John Engbring,

Manager.

[FR Doc. 00–11450 Filed 5–12–00; 8:45 am]

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