4172 Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Rules and Regulations

2. Section 22.935(f)(5) is revised to

read as follows:

§ 22.935 Procedures for comparative

renewal proceedings.

* * * * *

(f) * * *

(5) Parties will have 30 days in which

to file exceptions to the Initial Decision.

[FR Doc. 97–1699 Filed 1–28–97; 8:45 am]

BILLING CODE 6712–01–M

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AB88

Endangered and Threatened Wildlife

and Plants; Determination of

Endangered Status for Two Plants and

Threatened Status for Four Plants

From Southern California

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: The U.S. Fish and Wildlife

Service (Service) determines

endangered status for Astragalus

brauntonii (Braunton’s milk-vetch) and

Pentachaeta lyonii (Lyon’s pentachaeta)

and threatened status for Dudleya

abramsii ssp. parva (Conejo dudleya),

Dudleya cymosa ssp. marcescens

(marcescent dudleya), Dudleya cymosa

ssp. ovatifolia (Santa Monica Mountains

dudleya), and Dudleya verityi (Verity’s

dudleya). These taxa occur in grassland,

chaparral, or coastal sage scrub habitats

in the mountains surrounding the Los

Angeles basin, California. The six plants

are threatened by one or more of the

following—urban development,

recreational activities, alteration of fire

cycles and fire suppression activities,

overcollecting, habitat fragmentation

and degradation, and competition from

invasive weeds. Several of the plants are

also threatened by naturally occurring

events by virtue of their small numbers

and population sizes. This rule

implements the protection and recovery

provisions provided by the Endangered

Species Act (Act) for these plants.

EFFECTIVE DATE: February 28, 1997.

ADDRESSES: The complete file for this

rule is available for inspection by

appointment during normal business

hours at the Ventura Field Office, U.S.

Fish and Wildlife Service, 2493 Portola

Road, Suite B, Ventura, California

93003.

FOR FURTHER INFORMATION CONTACT: Carl

Benz, Assistant Field Supervisor,

Ventura Field Office (see ADDRESSES

section) (telephone: 805/644–1766;

facsimile: 805/644–3458).

SUPPLEMENTARY INFORMATION:

Background

Astragalus brauntonii (Braunton’s

milk-vetch), Pentachaeta lyonii (Lyon’s

pentachaeta), Dudleya abramsii ssp.

parva (Conejo dudleya), Dudleya

cymosa ssp. marcescens (marcescent

dudleya), Dudleya cymosa ssp.

ovatifolia (Santa Monica Mountains

dudleya), and Dudleya verityi (Verity’s

dudleya) are located around the Los

Angeles basin, California. The lowland

plains are bounded by mountains and

hills that expose Mesozoic or older

basement rocks and sedimentary and

igneous rocks of late Cretaceous to late

Pleistocene age. The southern portion of

the Transverse Ranges forms the

northern and western boundary of the

basin and includes the San Gabriel

Mountains, the Santa Monica

Mountains, and the Simi Hills. The

Santa Ana Mountains at the northern

end of the Peninsular Ranges border the

southern region of the basin.

Strong substrate preferences are

exhibited by all of the taxa included in

this rule. Populations of Astragalus

brauntonii are only known to occur on

small limestone outcrops. Pentachaeta

lyonii is found on clay soils in ecotonal

areas between grasslands and

shrublands. All of the dudleyas occur

on volcanic or sandstone rock outcrops

with specific microhabitat

characteristics. Dudleya verityi and

Dudleya abramsii ssp. parva occur

exclusively on the outcrops and soils

derived from the Miocene Conejo

volcanics at the western end of the Simi

Hills and the Santa Monica Mountains.

Dudleya cymosa ssp. marcescens

occupies the lower slopes of volcanic

cliffs in canyons that have perennial

moisture. Dudleya cymosa ssp.

ovatifolia is found on rock outcrops

with forms specific to sedimentary

conglomerate or volcanic breccia (Nakai

1987, Natural Diversity Data Base

(NDDB) 1994).

Most of the major habitat types in

which these rare plants occur are

considered sensitive by the botanical

community in California. Large scale

loss of habitat, fragmentation, and

alteration of natural ecosystem

processes have resulted from

development, fire suppression activities,

cattle grazing, and vegetation type

conversion by agricultural practices

(Schoenherr 1989). Astragalus

brauntonii is associated with the firedependent chaparral habitat dominated

by Adenostoma fasciculatum (chamise),

Yucca whipplei (yucca), and the rare

Cupressus forbesii (Tecate cypress).

Dudleya abramsii ssp. parva commonly

occurs in a cactus-dominated coastal

sage scrub, which provides nesting

habitat for the rare Bell’s sage sparrow

(Amphispiza belli belli) and rufouscrowned sparrow (Amophila ruficeps).

Most of the coastal sage scrub where

Dudleya verityi occurs is dominated by

Artemisia californica (coastal

sagebrush), Eriogonum fasciculatum

(wild buckwheat), Salvia leucophylla

(purple sage), and occasionally

Coreopsis gigantea (giant coreopsis).

Dudleya verityi is associated with the

rare Eriogonum crocatum (Conejo

buckwheat) and Dudleya blochmaniae

ssp. blochmaniae (Blochman’s dudleya).

A unique lichen flora of over 70 species

is associated with Dudleya verityi and

coastal sage scrub habitat on Conejo

Mountain (Riefner 1992). The grassland

habitat in which Pentachaeta lyonii

occurs is largely dominated by

introduced old world grass and herb

genera such as Avena, Brassica, Bromus,

Centaurea, and Erodium. Several native

plant species are present in these

grasslands, including the bunch grass

Nassella pulchra.

Discussion of the Six Plant Taxa

Astragalus brauntonii was first

collected in 1901 by Ernest Braunton

near Sherman (now called West

Hollywood), Los Angeles County.

Samuel B. Parish described it two years

later as Astragalus brauntonii. In 1929,

Per Axel Rydberg published the name

Brachyphragma brauntonii in his

revision of the genus; however, this

name was not recognized by most

botanists. Rupert Barneby recognized

the name Astragalus brauntonii in his

Atlas of North American Astragalus

(Barneby 1964). Astragalus brauntonii is

included in the current edition of The

Jepson Manual (Spellenberg 1993).

Astragalus brauntonii is a robust,

short-lived perennial in the pea family

(Fabaceae). It is one of the tallest

members of the genus, reaching a height

of 15 decimeters (dm) (60 inches (in.))

and is covered with woolly hairs. A

thick taproot and woody basal stem

gives rise to several to many stems. The

4 to 16 centimeter (cm) (1.5 to 6.5 in.)

long leaves are pinnately compound

with 25 to 33 oblong-ovate, abruptly

pointed leaflets. The light purple

flowers are clustered in 35- to 60-

flowered racemes 4 to 14 cm (1.5 to 5.5

in.) long. The beaked, slightly curved

pods are oblong-ovoid and 6.5 to 9

millimeters (mm) (2.5 to 3.5 in.) long.

Astragalus brauntonii is readily

distinguished from the only other

perennial species of Astragalus in the
Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Rules and Regulations 4173

area, A. trichopodus, by being woolly as

opposed to strigose (covered with sharp,

stiff-appressed hairs) or glabrous

(without hairs), and by having twochambered rather than one-chambered

pods (Barneby 1964).

Astragalus brauntonii is considered a

limestone endemic; the only

populations not found on limestone are

on down-wash sites (seed drift

following a fire event), an occurrence

along the edge of a fire road in

Monrovia, and at a location in Chino

Hills (Sampson 1985) where the

substrate type is unknown. Surveys for

A. brauntonii during post-fire floristic

inventories within its known

distribution on substrates other than

limestone have, to date, failed to

indicate its presence on non-limestone

soils. The potential occurrence of A.

brauntonii on non-limestone soils

should not be discounted; however, it is

quite conspicuous and would be easily

detected. Limestone outcrops are

extremely rare within the limits of the

known distribution of A. brauntonii.

Fire is a natural requirement for the

survival of this species. The natural

frequency of fire in the habitat of

Astragalus brauntonii is unknown, but

estimates range between 20 to over 100

years with an average of 70-year

intervals (Minnich 1989, O’Leary 1990).

Higher fire frequencies have resulted

from increasing human populations in

southern California, mostly in the form

of arson-caused fires. This species has a

life span of 2 to 3 years, and depending

on fire interval, a given population is

visible only once in 20 to 50 or more

years.

Astragalus brauntonii is currently

known from four general areas in

Ventura, Los Angeles, and Orange

counties. One population is found along

the south slope of the Simi Hills of

eastern Ventura and western Los

Angeles counties. Two occurrences (one

population) are known from Santa Ynez

Canyon in the Santa Monica Mountains,

Los Angeles County, which probably

represents the type locality from above

Sherman (now West Hollywood). Two

occurrences (one population) are known

from Coal and Gypsum Canyons in the

Santa Ana Mountains, Orange County

(NDDB 1994). Eight individuals were

reported during the preparation of the

Cloverleaf Canyon Specific Plan for the

area in 1983 (J. Bitterly, biologist,

Planning Consortium, in litt., 1992) near

where historical collections were made

south of Clamshell Canyon, north of

Monrovia in Los Angeles County.

Because reproduction of Astragalus

brauntonii is stimulated by fire events,

the total number of individuals varies

with current fire cycles. The largest

known population ever recorded was

approximately 400 individuals (Orange

County) in 1985 following a fire in 1982.

No plants remain there today. Nearby

habitat for A. brauntonii in the

Cleveland National Forest was surveyed

by endangered plant specialists from the

Rancho Santa Ana Botanic Garden, but

no plants were found (Mistretta 1992).

The remaining populations contain no

more than approximately 20 to 30

individuals and the current total

number of individuals is estimated to be

fewer than 100. The seed bank for A.

brauntonii may have the capability of

generating approximately 1,000

individuals in 4 highly subdivided

populations.

Most of the habitat of Astragalus

brauntonii is on private land in areas

with expanding development. Four

public agencies, the California

Department of Parks and Recreation

(DPR), the Conejo Open Space

Conservation Agency (COSCA), the

Rancho Simi Parks and Recreation

District, and the National Park Service

(NPS), have small colonies within their

jurisdictions that may not be viable. All

of the protected habitat occurs in the

immediate vicinity of urban

development. Astragalus brauntonii is

threatened by direct loss from urban

development, fragmentation of habitat

and reduced capabilities for sustained

ecologic processes, fragmented

ownership of single populations

resulting in different landscape

treatments, alteration in fire cycles, and

extinction from naturally occurring

events due to small population sizes

and low numbers of individuals

(Mistretta 1992, NDDB 1994).

The name Pentachaeta lyonii (Lyon’s

pentachaeta) was first published by Asa

Gray in 1886 (Van Horn 1973) based on

a plant collected by William Lyon ‘‘near

Palos Verdes Mountain’’ in Los Angeles

County. David Keck (1958) renamed the

plant Chaetopappa lyonii, which was

subsequently recognized by Munz

(1959). Pentachaeta is recognized as the

accepted genus name based on a

monograph on the taxonomic status of

Pentachaeta and Chaetopappa, in

which comparisons of morphology,

anatomy, and breeding systems

demonstrated that the two genera are

not closely related (Van Horn 1973).

Pentachaeta lyonii is a 6 to 48 cm (2.4

to 18.9 in.) tall annual in the aster

family (Asteraceae) with yellow flowers

that bloom in late spring (April to June).

It is distinguished from other members

of the genus by its hairy phyllaries,

larger numbers of pappus bristles, and

its reddish branches originating from

the upper portion of the plant. The

corollas of the ray flowers are typically

curled and the leaves are narrowly

linear with ciliate margins (Van Horn

1973). There are no other members of

the genus in the region.

Pentachaeta lyonii occupies pocket

grassland sites that intergrade with

shrublands, and the edges of roads and

trails. Species typically associated with

P. lyonii include Chorizanthe staticoides

(turkish rugging), Calochortus catalinae

(Catalina mariposa lily), Nassella

pulchra (purple needle-grass), and

annual members of the phlox family

(Polemoniaceae) (Thomas and Danielsen

1984). Habitat of P. lyonii is

characterized by a low percentage of

total plant cover and exposed soils with

a microbiotic crust (Belnap 1990),

partially assisting in reducing

competition with other species. Rodents

(Perognathus spp. and Peromyscus spp.)

and harvester ant colonies

(Pogonomyrex spp.) also control the

density of associated vegetation

(Thomas and Wishner 1988).

There are very few collections of

Pentachaeta lyonii; the majority were

made around the turn of the century and

from locations where the species has

been extirpated, including Palos Verdes

Peninsula and Santa Catalina Island.

The first record from the Santa

Monica Mountains dates from 1926

from an unknown location in the

Malibu Hills (NDDB 1994). It was not

until 1964, when Peter Raven was

collecting for the 1966 Flora of the

Santa Monica Mountains that P. lyonii

was again documented from the Santa

Monica Mountains (P. Raven, in litt.,

1964). That population has since been

extirpated by conversion to agriculture

(NDDB 1994). David Verity discovered

the easternmost population of P. lyonii

in the Santa Monica Mountains at Stunt

Ranch in 1977 (NDDB 1994).

Pentachaeta lyonii is currently known

from five population units in the Santa

Monica Mountains and the western

Simi Hills, a distance of approximately

32 kilometers (km) (20 miles (mi)),

distributed in a highly fragmented

landscape. The East unit consists of 1

occurrence with 4,000 individuals; the

Mulholland crest unit has 3 occurrences

with 1,200 individuals; the Central unit

has 7 occurrences with 28,000

individuals; the Conejo Ridge unit has

7 occurrences with 2,900 individuals;

and the North unit has 4 occurrences

with 1,000 individuals. Five of these

occurrences are known to exist on

public lands managed by the NPS, the

Las Virgenes Municipal Water District,

and COSCA. Since publication of the

proposed rule, three occurrences on

public lands (Stunt Ranch, Malibu

Creek State Park, and Arroyo Sequit)

appear to have become extirpated
4174 Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Rules and Regulations

(NDDB 1994). The remaining locations

are on privately owned land, most with

active primary and secondary threats

from existing or proposed development.

Primary threats include those that

eliminate populations during

construction. Secondary threats include

the influence of the project on the

surrounding environment in the form of

local disturbance facilitating the

introduction of competitive weeds and

alteration of ecosystem processes. Other

sites containing potential habitat for P.

lyonii are limited, reducing the

likelihood of finding additional

unthreatened and viable populations of

this species.

In southern California, dudleyas or

live-forevers (Dudleya) are succulent,

rosette-forming perennial plants in the

stonecrop family (Crassulaceae).

Members of this genus frequently

inhabit rocky soils or rock outcrops,

both along the coast and in interior

mountain ranges. The Santa Monica

Mountains represent one of the most

diverse concentrations of the genus.

Because of the patchy and limited

distribution of such habitats within

other plant community types, many

species of Dudleya tend to be highly

localized in their distribution.

Dudleya abramsii ssp. parva (Conejo

dudleya) was first described in 1923 as

D. parva by Joseph Rose and Anstruther

Davidson (Moran 1948) based on a

cultivated collection made a year earlier

by Mrs. J. H. Bullard from the Conejo

Grade in Ventura County. No further

mention was made of the plant in other

regional floras for several decades,

although Munz listed D. parva as a

synonym of Echeveria lanceolata in

1935 (Moran 1948). In 1960, Reid Moran

recognized D. parva in his treatment of

the genus (Moran in Jacobsen 1960), and

it was subsequently also recognized by

Munz in his Flora of Southern

California (1974). Jim Bartel (1991)

published the combination D. abramsii

ssp. parva, based on similar floral

features between D. parva and D.

abramsii.

Dudleya abramsii ssp. parva forms a

rosette of oblanceolate leaves that are

1.5 to 4 cm (0.6 to 1.6 in.) long, 3 to 6

mm (1.2 to 2.4 in.) wide, and that,

unlike most taxa in the subsection

Dudleya, wither by early summer. The

inflorescence is 5 to 18 cm (2 to 7.1 in.)

long, tipped with pale yellow flowers

that are often flecked with red on the

keel. The roots are constricted at

irregular intervals (Munz 1974).

Dudleya abramsii ssp. parva is

distinguished from other local Dudleya

taxa by its flower color, root

constrictions and withering leaves.

Dudleya abramsii ssp. parva is known

only from the western terminus of the

Simi Hills west along the Montclef

Ridge to the Conejo Grade, a distance of

approximately 16 km (10 mi). There are

only 11 reported populations, with

numbers of individuals varying from a

few thousand at one population to as

few as 25. The majority of the

populations number in the hundreds of

individuals. Dudleya abramsii ssp.

parva grows at the base of scattered rock

outcrops of the Conejo volcanics in

grassland and coastal sage scrub

habitats. A portion of the plant’s habitat

is on lands designated as ‘‘open space’’

by COSCA; the remaining habitat is

privately owned. Threats to this taxon

include recreational activity (hiking and

equestrian use), urban development, fire

management and suppression activities,

and collection (NDDB 1994, Skinner

and Pavlik 1994).

Dudleya cymosa was first described

by Charles Antoine Lemaire in 1858 as

Echeveria cymosa based on a collection

sent to him by the Belgian

horticulturalist Louis de Smet; however,

the type locality is unknown and the

type specimen has been lost (Moran

1951, Nakai 1987). In 1903, Britton and

Rose renamed the taxon Dudleya

cymosa (Moran 1951). Dudleya cymosa

includes seven subspecies that range

throughout California in the Sierra

Nevada, Coast Ranges, Transverse

Ranges, and the northern portion of the

Peninsular Ranges; however, the two

subspecies discussed in this rule have

restricted distributions.

Dudleya cymosa ssp. marcescens

(marcescent dudleya) was first observed

by Charlotte Hoak in 1932 in Little

Sycamore Canyon in the Santa Monica

Mountains (Rooksby 1936). However,

the plant was not described until 1951

by Moran, based on a specimen that he

collected in 1948 at the same location

(Moran 1951, 1957).

Dudleya cymosa ssp. marcescens is

distinguished from other subspecies of

D. cymosa by the habit of the rosette

leaves withering in the summer. The

rosette leaves are 1.5 to 4 cm (0.6 to 1.6

in.) long and 5 to 12 mm (2.0 to 4.7 in.)

wide; the caudex is 2 to 7 mm (0.8 to

2.8 in.) thick; floral stems are 4 to 10 cm

(1.6 to 4 in.) tall; corollas are bright

yellow to yellow with red markings to

bright red (Munz 1974). This subspecies

typically occurs on the lower reaches of

sheer volcanic rock surfaces and canyon

walls adjacent to perennial streams. In

most locations, the topographic relief

has precluded soil formation; therefore,

this taxon may be the only vascular

plant in a microhabitat otherwise

dominated by mosses and lichens

(NDDB 1994).

Dudleya cymosa ssp. marcescens is

known from seven occurrences in the

Santa Monica Mountains, from Hidden

Valley to Malibu Creek State Park, a

distance of 24 km (15 mi). Estimates of

the number of individuals at each

occurrence are between 50 and 200

plants; the total number of individuals

is estimated to be less than 1,000. The

microhabitat requirements of the plant

limit the possibility that any additional

large populations will be found. Half of

the populations occur on lands owned

and managed by the DPR; two locations

are managed by the NPS—one on an

administrative easement where the

landowner has drastically altered the

native vegetation (pine plantings in a

cleared oak grove), and another in an

area that receives unsupervised

recreational use (boulder hopping and

rock climbing). The remaining

populations are on lands in private

ownership, several of which are

threatened by development (Skinner

and Pavlik 1994, NDDB 1994). On DPR

and NPS lands, the plant is threatened

by recreational use, particularly rock

climbing, foot traffic, collection, and fire

(Skinner and Pavlik 1994, NDDB 1994).

The distinct variation in Dudleya

cymosa ssp. marcescens between sites

has been commented upon (Mark

Dodero, graduate student, San Diego

State University, pers. comm., 1992).

Nakai believes that a small population

at Rattlesnake Canyon in Santa Barbara

County shares characteristics with this

subspecies (Kei Nakai, pers. comm.,

1992). Bartel (in litt., 1992b) has made

a tentative determination of D. cymosa

ssp. marcescens for a population in the

Santa Ana Mountains, Orange County.

Daryl Koutnik, who has also studied the

systematics of these taxa, questions

these determinations (J. Schwarze, in

litt., 1993). If these additional

populations prove to be D. cymosa ssp.

marcescens, they are unlikely to alter

the status of this subspecies due to the

threats and limited population numbers

in the Santa Monica Mountains.

Dudleya cymosa ssp. ovatifolia (Santa

Monica Mountains dudleya) was first

described as D. ovatifolia by Britton in

1903 based on a collection made by

H.M. Hall the previous year. The type

locality is listed as ‘‘Sierra Santa

Monica,’’ thought to be Topanga Canyon

in Los Angeles County (Moran 1951).

The species was subsequently

recognized as Cotyledon ovatifolia and

Echeveria ovatifolia (Fedde 1904 and

Berger 1930 respectively in Moran 1951)

when broad generic concepts were

applied to the family Crassulaceae.

Moran published the new combination

Dudleya cymosa ssp. ovatifolia in 1957.
Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Rules and Regulations 4175

In 1983, Nakai considered the plants

he found near Agoura, Los Angeles

County, to be one of ‘‘two somewhat

distinct races’’ of Dudleya cymosa ssp.

ovatifolia. The ovate leaves with a

maroon underside distinguish the

‘‘Topanga’’ race of D. cymosa ssp.

ovatifolia from other Dudleya, while the

glaucous leaves and lemon-yellow

flowers separate the ‘‘Agoura’’ race of D.

cymosa ssp. ovatifolia from other local

species. Four years later, however,

Nakai (1987) published the new

combination D. cymosa ssp. agourensis

to refer to ‘‘Agoura’’ material. Nakai

distinguished the new subspecies from

D. cymosa ssp. ovatifolia by the number

and shape of rosette leaves, pedicel

length, and degree of spreading in petal

apices. Bartel (in litt., 1992a) concluded

that these characters were insufficient to

warrant taxonomic recognition as a

subspecies of D. cymosa. As a result,

Bartel (1993) lumped D. cymosa ssp.

agourensis with D. cymosa ssp.

ovatifolia in his revision of the genus for

The Jepson Manual. For the purposes of

this rule, Dudleya cymosa ssp. ovatifolia

includes D. cymosa ssp. agourensis as

described by Nakai.

Like many Dudleya taxa, D. cymosa

ssp. ovatifolia has rosette leaves that are

evergreen rather than withering in the

summer. Leaves are 2 to 5 cm (0.8 to 2

in.) long and 1.5 to 2.5 cm (0.6 to 1 in.)

wide; floral stems are 4 to 15 cm (1.6 to

6.0 in.) tall; corollas are pale yellow

(Munz 1974). Dudleya cymosa ssp.

ovatifolia is found scattered along

exposed north-facing slopes of the Santa

Monica Mountains from near Westlake

Village to Agoura, and in deep canyon

bottoms along lower Malibu Creek and

Topanga Creek. Less than ten

occurrences have been reported, each

consisting of no more than several

hundred individuals. While future

surveys may locate additional

occurrences of the ‘‘Agoura’’ form along

the northern slopes of the Santa Monica

Mountains, the limited amount of

habitat available makes it unlikely that

the total number of individuals will

exceed several thousand (NDDB 1994).

Material collected by David Verity

(pers. comm., 1992) from Modjeska

Canyon on the western flank of the

Santa Ana Mountains, Orange County,

in 1951 was included by Uhl and Moran

(1953) in their cytotaxonomic article on

Dudleya as D. ovatifolia. These

populations, which are not threatened

(U.S. Fish and Wildlife Service

(USFWS), in litt., 1996), represent a

range disjunction of approximately 100

km (60 mi) to the southeast of the Santa

Monica Mountains. Boyd et al. (1995)

reported that the subspecies in the Santa

Ana Mountains was ‘‘[l]ocally common

on north-facing cliffs in chaparral,

central Santiago Canyon near Fleming

Peak to near the summit of the west

slope of Modjeska Peak.’’ Co-author

Fred Roberts indicated that ‘‘local and

restricted, but common where found’’

would better describe the distribution

(Fred Roberts, USFWS, pers. comm.,

1996).

Populations of Dudleya cymosa ssp.

ovatifolia in Malibu and Topanga

Canyons occur largely on lands owned

and managed by the DPR. One of these

populations is relatively inaccessible,

however, another occurrence is directly

adjacent to private property that has

been bulldozed for development access

(Suzanne Goode, Resource Ecologist,

DPR, Santa Monica Mountains, pers.

comm., 1992). Two occurrences are on

lands designated as open space by

COSCA, while the remaining

occurrences in the Santa Monica

Mountains are on several privately

owned properties zoned for commercial

and residential development along the

north slope of Ladyface Mountain. A

cumulative impacts analysis from an

area project proposal shows at least 74

projected proposed or under

construction within 6.4 km (4 mi) of the

Santa Monica Mountains populations

(County of Los Angeles, in litt., 1996).

This density of development threatens

the habitat of D. c. ssp. ovatifolia.

Dudleya verityi (Verity’s dudleya) was

originally collected in 1944 by Moran,

who treated it as D. caespitosa. In their

1966 Flora of the Santa Monica

Mountains, Peter Raven and Henry

Thompson treated it as D. farinosa. In

1983, Nakai described it as Dudleya

verityi (Nakai 1983).

Dudleya verityi is unique among

Dudleya taxa in this rule in that it forms

multiple rosettes, as many as 100 to a

colony. Rosette leaves are 2 to 5 cm (0.8

to 2 in.) long and 5 to 8 mm (0.2 to 0.4

in.) wide; floral stems are 5 to 15 cm (2

to 5.9 in.) tall; corollas are lemon-yellow

with petal tips recurved up to 90

degrees. Nakai (1983) distinguished D.

verityi from D. caespitosa by its much

shorter leaves and flowering stems. He

separated D. verityi from D. cymosa ssp.

ovatifolia by its more elongated caudex,

multiple dichotomously branched

rosettes, and paler flowers (Nakai 1983,

1987).

Dudleya verityi is limited to three

populations occurring in a narrow band

6.4 km (4 mi) in length along the lower

slopes of Conejo Mountain, from Long

Grade Canyon to U.S. highway 101. The

northernmost population consists of

over a thousand individuals and another

is considered abundant in the limited

habitat it occupies (Envicom 1992,

NDDB 1994). Historically, the lower

slopes of Conejo Mountain have been

the site for quarrying of constructiongrade rock. The land is zoned for

mineral extraction and there are

abandoned, active, and proposed quarry

operations within the distribution of D.

verityi. The majority of the distribution

of D. verityi is privately owned in a

region with rapidly increasing

development. Only a small portion of

habitat is owned by a public agency

(Ventura County Flood Control District).

Previous Federal Action

Federal government action on these

six plants began as a result of section 12

of the Endangered Species Act of 1973,

which directed the Secretary of the

Smithsonian Institution to prepare a

report on those plants considered to be

endangered, threatened, or extinct. This

report, designated as House Document

No. 94–51, and presented to Congress

on January 9, 1975, recommended

Astragalus brauntonii and Dudleya

abramsii ssp. parva (as Dudleya parva)

for threatened status, and Dudleya

cymosa ssp. marcescens and

Pentachaeta lyonii for endangered

status. The Service published a notice in

the July 1, 1975, Federal Register (40 FR

27823) of its acceptance of the report as

a petition within the context of section

4(c)(2) (now section 4(b)(3)(A)) of the

Act, and of the Service’s intention

thereby to review the status of the plant

taxa named therein. The above four taxa

were included in the July 1, 1975,

notice. The Service published a

proposal in the June 16, 1976, Federal

Register (42 FR 24523) to determine

approximately 1,700 vascular plant

species to be endangered species

pursuant to section 4 of the Act.

Dudleya cymosa ssp. marcescens and

Pentachaeta lyonii were included in the

June 16, 1976, Federal Register.

General comments received in regard

to the 1976 proposal were summarized

in the April 26, 1978, Federal Register

(43 FR 17909). The Endangered Species

Act amendments of 1978 required that

all proposals over 2 years old be

withdrawn. A 1-year grace period was

given to those proposals already more

than 2 years old. In the December 10,

1979, Federal Register (44 FR 70796),

the Service published a notice of

withdrawal of the June 6, 1976, proposal

along with four other proposals that had

expired.

The Service published an updated

notice of review for plants in the

December 15, 1980, Federal Register (45

FR 82480). This notice included

Astragalus brauntonii, Dudleya cymosa

ssp. marcescens, D. parva, and

Pentachaeta lyonii as category 1

candidate species (species for which
4176 Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Rules and Regulations

data in the Service’s possession are

sufficient to support proposals for

listing). On November 28, 1983, the

Service published in the Federal

Register a supplement to the Notice of

Review (48 FR 39526); the plant notice

was again revised on September 27,

1985 (50 FR 6184). Dudleya abramsii

ssp. parva (as D. parva) was included in

the 1983 supplement and the 1985

revision as a category 1 candidate

species. Astragalus brauntonii, D.

cymosa ssp. marcescens, and

Pentachaeta lyonii were included in

both of these revisions as category 2

species (species for which data in the

Service’s possession indicate listing

may be appropriate, but for which

additional biological information is

needed to support a proposed rule).

Dudleya verityi was included for the

first time in the 1983 supplement, and

again in the 1985 revision, as a category

2 species. On February 21, 1990 (55 FR

6184), the plant notice was again

revised, and Dudleya parva and

Pentachaeta lyonii were included as

category 1 taxa, while Astragalus

brauntonii, D. cymosa ssp. marcescens,

and D. verityi were included as category

2 taxa. Dudleya cymosa ssp. ovatifolia

did not appear in a notice of review.

Data gathered during the request for

information period were sufficient to

determine that proposed listing was

warranted. The proposed rule

constituted the first Federal action on D.

cymosa ssp. ovatifolia.

Section 4(b)(3)(B) of the Endangered

Species Act, as amended in 1982,

requires the Secretary to make findings

on certain 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

was the case for Astragalus brauntonii,

Dudleya abramsii ssp. parva (as D.

parva), D. cymosa ssp. marcescens, and

Pentachaeta lyonii because the 1975

Smithsonian report was accepted as a

petition. Annually in October of 1983

through 1991, the Service found that the

petitioned listing of these taxa was

warranted, but that their listing was

precluded by other higher priority

listing actions. The publication of the

proposed rule constituted a warranted

finding for these taxa, as well as for D.

verityi and D. cymosa ssp. ovatifolia.

On November 30, 1992, the Service

published a proposed rule in the

Federal Register (57 FR 56541) to list

Astragalus brauntonii and Pentachaeta

lyonii as endangered and Dudleya

abramsii ssp. parva, Dudleya cymosa

ssp. marcescens, Dudleya cymosa ssp.

ovatifolia, and Dudleya verityi as

threatened.

The processing of this final rule

follows the Service’s listing priority

guidance published in the Federal

Register on December 5, 1996 (61 FR

64475). The guidance clarifies the order

in which the Service will process

rulemakings following two related

events: (1) the lifting, on April 26, 1996,

of the moratorium on final listings

imposed on April 10, 1995 (Public Law

104–6), and (2) the restoration of

significant funding for listing through

passage of the omnibus budget

reconciliation law on April 26, 1996,

following severe funding constraints

imposed by a number of continuing

resolutions between November 1995

and April 1996. The guidance calls for

giving highest priority to handling

emergency situations (Tier 1) and

second highest priority (Tier 2) to

resolving the listing status of the

outstanding proposed listings. This final

rule falls under Tier 2. At this time there

are no pending Tier 1 actions. The

Ventura Field Office has confirmed that

the overall status of the taxa in this final

rule has not improved since publication

of the proposed rule.

Summary of Comments and

Recommendations

In the November 30, 1992, proposed

rule and associated notifications, all

interested parties were requested to

submit factual reports or information

that might contribute to the

development of a final rule. A

newspaper notice inviting public

comment was published in the Los

Angeles Times on December 11, 1992.

The comment period closed on January

29, 1993. Appropriate Federal agencies,

State agencies, local governments,

scientific organizations, and other

interested parties were contacted and

requested to comment.

The Service received 17 letters

concerning the proposed rule during the

comment period, including those of 1

Federal agency, 1 State agency, and 15

individuals or groups. Twelve

respondents expressed support for the

listing proposal, three opposed it, and

two were neutral. Several commenters

provided additional information; this

information and other clarifications

have been incorporated into the final

rule. Opposing and technical comments

on the rule have been organized into

specific issues. These issues and the

Service’s response to each issue are

summarized as follows:

Issue 1

One commenter, citing data from the

Natural Diversity Data Base (NDDB),

asserted that the proposed rule did not

include substantial information to

justify the listing of Pentachaeta lyonii.

Response

Under section 4(b)(1)(A) of the Act,

the Service must use the best scientific

and commercial information available

when determining whether a species is

endangered or threatened. This listing is

based on the best available scientific

and commercial information, including

literature records, Service fieldwork,

communication with field biologists

familiar with the species and its threats,

local lead agencies, landowners, and

NDDB data. Most of the respondent’s

comments referred only to NDDB

information. The Service had access to

the data used to enter information into

NDDB records and communicated with

the field biologists who supplied the

data to the NDDB. The Service believes

that sufficient evidence of threats to

Pentachaeta lyonii and the other five

taxa is presented in this rule to warrant

their protection under the Act. (See

‘‘Summary of Factors Affecting the

Species’’ below.) The Service maintains

that the final decision to list

Pentachaeta lyonii is based on the best

available scientific and commercial

information.

Issue 2

One commenter referred to the

NDDB’s use of the global and state

ranking system, stating that Pentachaeta

lyonii was incorrectly ranked and is

actually not rare enough to be

considered endangered.

Response

The Service did not base this listing

on the global and state rarity ranking

systems used by the NDDB. The

evaluation of rarity by the NDDB for the

global and state ranking system counts

what the NDDB considers to be viable

occurrences of species. The ranking

system contained only two and possibly

four occurrences of Pentachaeta lyonii

(Susan Cochrane, Division Chief,

Natural Heritage Division, California

Department of Fish and Game (CDFG),

in litt., 1993). The majority of these

occurrences are actually small,

declining, damaged, and/or

experiencing a high level of threat from

habitat loss and therefore are not viable

in the view of the Service.

Issue 3

One commenter suggested that the

NDDB data for Pentachaeta lyonii

illustrated the fact that there are

numerous populations, the population

sizes are large, and the status of the

species is improving.
Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Rules and Regulations 4177

Response

The NDDB often includes more than

one occurrence number to record a

biological population. A single

occurrence may encompass multiple

property ownerships, resulting in

several records of occurrence for a

single population. This method of

recording a population may provide an

artificially high record for the number of

biological populations. The text of the

rule has been amended to define the

distribution of Pentachaeta lyonii as

occurring in five population units

(landscape units or metapopulations),

each comprising several colonies. The

Service acknowledges that new

populations have been discovered in the

last two decades; however, the

implication that the species’ status has

improved is in error. The commenter

indicated having knowledge of four

additional occurrences; however, no

information was submitted to the

Service to substantiate those claims. The

majority of new information on the

distribution of P. lyonii is a result of

early compliance surveys for

development proposals. The subsequent

project redesigns have been inadequate

to protect the habitat for this species,

and mitigation measures approved by

various local lead agencies have proven

inadequate for long-term population

viability (C. Wishner, biologist, Envicom

Corp., pers. comm., 1994). The majority

of information available indicates that

populations have declined. Disruptive

events, such as direct loss of colonies to

development and secondary impacts of

disturbance including displacement by

non-native weeds, have also resulted in

a declining population trend. It is

typical for an annual plant species to

occur locally in large numbers, where

hundreds of thousands of individuals

constitute viable populations. The total

aggregate number of individuals of P.

lyonii is less than 50,000; however, the

majority of the occurrences each have

less than 1,000 individuals. Extinction

from naturally occurring events is

possible even for the largest known

populations of P. lyonii. The Service

therefore concludes that populations are

neither large nor numerous and that the

status of the species is declining.

Issue 4

One commenter asserted that the

distribution of Pentachaeta lyonii is

extensive and may still include the

Palos Verdes Peninsula and Santa

Catalina Island.

Response

The Service does not believe that the

distribution of this species is extensive.

Pentachaeta lyonii is a narrowly

localized endemic with a highly

fragmented and discontinuous

distribution in the Santa Monica

Mountains and the western Simi Hills.

The Service has reviewed the records of

historical distribution for the Palos

Verdes Peninsula and Santa Catalina

Island. The Service has consulted field

botanists specifically searching for P.

lyonii in those locations and determined

that the species has been extirpated

from those localities (CDFG 1989). The

vast majority of habitat in the region of

Palos Verdes has been developed, and

the open space on Santa Catalina Island

has been severely overgrazed and

altered by the introduction of nonnative animals and plants.

Issue 5

One commenter questioned the need

to federally list Pentachaeta lyonii,

stating that the California State

Endangered Species Act protects the

species.

Response

The failure of existing regulatory

mechanisms, including the California

Endangered Species Act, to adequately

protect the plant is addressed under

Factor D in the ‘‘Summary of Factors

Affecting the Species’’ section (see

below).

Issue 6

Two commenters expressed opinions

regarding the ecological function of fire

and its importance to the integrity of

viable habitat for Pentachaeta lyonii and

Astragalus brauntonii. One commenter

stated that prescribed fire is not and will

never be a feasible management tool in

the Santa Monica Mountains due to the

danger to personal property. One

commenter questioned the Service’s

statement that the 15 m (50 ft) buffer

zone for rare plant reserves currently

required as mitigation for impacts

caused by development is inadequate

and, therefore, that proposed

development constitutes a threat.

Response

The placement of development

adjacent to fire-prone habitats will

necessarily require fuels modification.

Although the development might not

actually remove sensitive plant species

during construction, a 15 m (50 ft)

buffer falls within the 30 to 60 m (100

to 200 ft) fuels modification zone. The

removal of vegetation in the fuels

modification zone adversely changes the

basic ecological processes that are part

of the required habitat of these two

species. More information on fire

management is presented under Factor

A in the ‘‘Summary of Factors Affecting

the Species’’ section (see below).

Prescribed burns are currently

conducted by the fire departments of

Los Angeles and Ventura counties

within the Santa Monica Mountains and

the Simi Hills. A dual purpose plan

designed to use prescribed fire for fuels

reduction and Pentachaeta lyonii

habitat management by establishing a

fire-safe buffer distance could reduce or

eliminate the local threats of habitat

modification by local development.

Issue 7

Two commenters thought that humancaused disturbance of the soil in the

habitats of Astragalus brauntonii and

Pentachaeta lyonii was not a threat to

viable populations.

Response

Although some populations of

Astragalus brauntonii and Pentachaeta

lyonii occur within anthropogenically

disturbed areas, no experimental data

exist on the response of these two

species to soil disturbance. However,

human-induced disturbance causes the

destruction and modification of the

integrity of natural habitats and in the

process facilitates the establishment of

competitive non-native weeds.

Pentachaeta lyonii populations have

apparently been lost and replaced by a

dense community of weeds near Stunt

Ranch and along upper Westlake

Boulevard.

The Service solicited the opinions of

several appropriate specialists regarding

pertinent scientific or commercial data

and assumptions relating to the

taxonomy and biological and ecological

information for these six taxa. All

responses received supported the

proposed rule. Additional data provided

by the reviewers have been incorporated

into this final rule.

Summary of Factors Affecting the

Species

After a thorough review and

consideration of all information

available, the Service has determined

that Astragalus brauntonii Parish

(Braunton’s milk-vetch) and

Pentachaeta lyonii Gray (Lyon’s

pentachaeta) should be classified as

endangered species and that Dudleya

cymosa (Lem.) Britt. & Rose ssp.

marcescens Moran (marcescent

dudleya), Dudleya cymosa (Lem.) Britt.

& Rose ssp. ovatifolia (Britt.) Moran

(Santa Monica Mountains dudleya),

Dudleya abramsii Rose ssp. parva (Rose

& Davids) Bartel (Conejo dudleya), and

Dudleya verityi Nakai (Verity’s dudleya)

should be classified as threatened

species. Procedures found at section 4 of
4178 Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Rules and Regulations

the Endangered Species Act (16 U.S.C.

1531) and regulations (50 CFR Part 424)

promulgated to implement the listing

provisions of the Act were followed. 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 the six plant taxa in

this rule are as follows:

A. The Present or Threatened

Destruction, Modification, or

Curtailment of Its Habitat or Range

Steep terrain typifies the habitat of

Astragalus brauntonii and, until the

recent increase of urban sprawl, it has

remained relatively secure. Now that the

majority of flat lands have been

developed, several populations

occupying rugged terrain have been

destroyed by urban development.

Within the last 15 years, one colony has

been extirpated (Monrovia) and two

others have incurred significant losses

related to development (Santa Ynez

Canyon and Simi Hills). Another

location has been approved for

development by the City of Anaheim

(Coal Canyon). There are no known

populations that are not facing primary

or secondary threats to survival. Only a

small portion of the Santa Ynez Canyon

population occurs on public lands

(DPR) and a portion of the population

was bulldozed during fire suppression

activities in 1993.

The City of Anaheim has approved a

development that will eliminate 50

percent of the population of Astragalus

brauntonii in the Santa Ana Mountains

(C. Spenger, President, Friends of the

Tecate Cypress, in litt., 1993). The

County of Ventura has approved a

development, with mitigation measures,

that will eliminate a portion of the

habitat for A. brauntonii in the Simi

Hills. The proposed mitigation efforts

are strictly experimental, consisting of

the movement of limestone soils to a

rare plant reserve with no limestone

substrate. The reserve may not be large

enough or far enough away from

development to allow periodic fires.

Additionally, there is no contingency in

the event that these efforts fail to

establish a long-term viable population

of A. brauntonii. A previously approved

development has destroyed most habitat

for this species in Santa Ynez Canyon

(S. Goode, pers. comm., 1992). All of the

population areas (Simi Hills, Topanga

State Park, Monrovia, and the Santa Ana

Mountains) have experienced habitat

destruction and the remaining habitat is

threatened by modification of natural

ecological processes.

Pentachaeta lyonii continues to be

negatively impacted by urban

development. The Lake Eleanor Hills

Project has been approved by the City of

Westlake Village and will eliminate

habitat containing several thousand

plants (Joseph Edminston, Executive

Director, Santa Monica Mountains

Conservancy, in litt., 1991). The Lake

Sherwood Golf Course and the Ronald

Reagan Presidential Library, both

recently approved and developed, have

eliminated significant habitat for

Pentachaeta lyonii. Sites that have been

set aside as ex situ mitigation areas,

with seed and soil transported from

Pentachaeta lyonii populations

destroyed in grading operations for

development, have failed to successfully

establish viable populations (C. Wishner

and J. Bowland, biologist, pers. comms.,

1994). The establishment of an in situ

management area was required as

mitigation for the removal of habitat at

Lake Sherwood Golf Course that

supported over 3,000 Pentachaeta lyonii

individuals (C. Wishner, in litt., 1994).

The site was negatively impacted by

changed hydrology, competition with

non-native species, loss of habitat for

potential pollinators, and elimination of

natural fire cycles. There was no buffer

zone and it failed to maintain a selfperpetuating population of P. lyonii.

Currently only a 15 m (50 ft) buffer for

avoidance of rare plant populations is

required by local permitting agencies

(Ventura County, City of Thousand

Oaks). A 15 m (50 ft) buffer zone falls

within the 30 to 60 m (100 to 200 ft)

fuels modification zone required in

California and is usually maintained by

disking and mowing. This practice

modifies or destroys the habitat

characteristics essential to sustaining

viable populations of Pentachaeta

lyonii. Two projects, one with a reported

10,000 individuals, have been designed

with Pentachaeta lyonii habitat

designated as part of the fuels

modification zone (P. Lindsey, biologist,

Impact Sciences, in litt., 1994). Attempts

to avoid or compensate for impacts have

produced conditions that are not

favorable for the long-term maintenance

of the populations.

Portions of populations of Dudleya

cymosa ssp. ovatifolia and D. abramsii

ssp. parva have been extirpated by

development in the cities of Agoura

Hills, Thousand Oaks, and Westlake

Village. The majority of their

distribution is on private lands located

in a region with increasing development

pressures. At least 75 projects are

proposed, approved, or under

construction within 6.5 km (4 mi) of

Dudleya cymosa ssp. ovatifolia habitat

(County of Los Angeles, in litt., 1996).

Dudleya abramsii ssp. parva is also

affected by trampling and off-road

vehicle activities on public and private

lands. Weed abatement operations along

roadsides, which involve scraping with

a skiploader, destroyed several hundred

individuals of D. cymosa ssp. ovatifolia

and have continued to modify its habitat

(T. Thomas, biologist, pers. obs., 1991).

Dudleya verityi survives on cliff habitats

at the base of the Conejo Grade on land

zoned for mineral extraction and with

existing quarrying operations. The

habitat of Dudleya cymosa ssp.

marcescens is used for rock climbing

and rappeling, which destroys the moss

substrate and individual dudleya plants.

B. Overutilization for Commercial,

Recreational, Scientific, or Educational

Purposes

Some plant species have become

vulnerable to collecting by curiosity

seekers as a result of increased publicity

following publication of a listing rule.

Overutilization is probably not

applicable to Astragalus brauntonii or

Pentachaeta lyonii. However, because of

the large stature and striking appearance

of Astragalus brauntonii, it may be

vulnerable to casual collection,

particularly along firebreaks adjacent to

areas used for recreational activities.

Virtually all members of the genus

Dudleya have been subject to collection

for horticultural purposes. The four

Dudleya taxa in this rule have all been

collected by professional

horticulturalists and probably by

amateur collectors and gardeners as

well.

C. Disease or Predation

Neither disease nor predation is

known to be a factor for any of the six

plant taxa in the wild. As part of a

program to mitigate the loss of a

substantial population of Pentachaeta

lyonii, plants grown from seed at

Rancho Santa Ana Botanic Gardens

were severely damaged by a white fly

infestation (Orlando Mistretta, Rancho

Santa Ana Botanic Garden, pers. comm.,

1992).

D. The Inadequacy of Existing

Regulatory Mechanisms

The California Fish and Game

Commission has listed Dudleya cymosa

ssp. marcescens as rare and Pentachaeta

lyonii as endangered under the Native

Plant Protection Act (NPPA) (Div. 2,

chapter 1.5 sec. 1900 et seq. of the CDFG

Code) and the California Endangered

Species Act (CESA) (Div. 3, chapter 1.5

sec. 2050 et seq.). Astragalus brauntonii,

Dudleya abramsii ssp. parva, Dudleya

cymosa ssp. ovatifolia, and Dudleya

verityi are included on List 1B of the

California Native Plant Society’s

Inventory (Skinner and Pavlik 1994),
Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Rules and Regulations 4179

indicating that, in accordance with

chapter 10 sec. 1901 of the CDFG Code,

they are eligible for State listing.

Although NPPA and CESA both prohibit

the ‘‘take’’ of State-listed plants (chapter

10 sec. 1908 and chapter 1.5 sec. 2080),

these existing statutes appear

inadequate to protect against the taking

of such plants via habitat modification

or land use change by the landowner.

After the CDFG notifies a landowner

that a State-listed plant grows on his or

her property, the CDFG Code requires

only that the landowner notify the

agency ‘‘at least 10 days in advance of

changing the land use to allow salvage

of such plant’’ (chapter 10 sec. 1913).

Local lead agencies empowered to

uphold and enforce the regulations of

the California Environmental Quality

Act (CEQA) have made determinations

that have or will negatively impact

Pentachaeta lyonii, Astragalus

brauntonii, Dudleya abramsii ssp. parva

and Dudleya cymosa ssp. ovatifolia.

Mitigation measures used to condition

project approvals are essentially

experimental and fail to adequately

guarantee protection of sustainable

populations. Species relocation attempts

have failed and project designs have

failed to provide an adequate buffer

zone around populations to permit longterm viability at those locations (Diane

Hickson, biologist, CDFG, in litt., 1994).

A mitigation measure approved by

Ventura County involves establishing a

rare plant reserve for Astragalus

brauntonii on non-occupied habitat.

Limestone soils will be scraped from the

destroyed site and placed on the

reserve. Because the small reserve is

bordered by development, it is unlikely

that prescribed fire will be used as a

management tool. The in situ preserve is

a highly altered water tank site that has

little natural habitat (Rachael Tierney,

biological consultant, in litt., 1990). It is

highly doubtful that either measure will

support viable populations of

Astragalus brauntonii.

Many mitigation attempts do not

achieve the goal of securing long-term

protection for plants (Howald 1993).

Three ‘‘protected’’ sites were bulldozed

since the publication of the proposed

rule—one during a fire suppression

event in 1993, one during fuelbreak

maintenance, and another by

earthmoving operations related to the

expansion of the Calleguas Municipal

Water District Facility.

In 1991, the State of California

established the Natural Communities

Conservation Plan Program (NCCP),

pursuant to the Natural Community

Conservation Planning Act. The purpose

of the NCCP program is to provide longterm, regional protection of natural

vegetation and wildlife diversity, while

allowing appropriate and compatible

land development (CDFG 1992). The

Southern California Coastal Sage Scrub

NCCP Program is the pilot program, and

is focused on the coastal sage scrub

plant community, although other

associated vegetation communities are

also being addressed in this ecosystembased planning approach. Prepared

under conservation planning guidance

for the Coastal Sage Scrub NCCP

Program, the Natural Community

Conservation Plan/Habitat Conservation

Plan was developed for the Central and

Coastal Subregion of Orange County,

and approved by the Service on July 17,

1996. Two of the six taxa in this rule

occur within the planning area for the

Central and Coastal Subregional Natural

Community Conservation Plan/Habitat

Conservation Plan, including one

population of Astragalus brauntonii and

two populations of Dudleya cymosa ssp.

ovatifolia.

Although discussed early in the

planning process for the Central and

Coastal Subregional Natural Community

Conservation Plan/Habitat Conservation

Plan, Astragalus brauntonii is not

considered a ‘‘covered’’ species under

the plan, because sufficient information

regarding the most appropriate

protection strategies to adequately

conserve the species was not available

during the planning process (USFWS, in

litt., 1996). Species ‘‘covered’’ under the

Central and Coastal Subregional Natural

Community Conservation Plan/Habitat

Conservation Plan have been treated as

if they were listed under the Act, and

their conservation and management is

provided for in the plan. The two

occurrences of A. brauntonii in Orange

County (Gypsum and Coal Canyons in

the Santa Ana Mountains) are within

the Central/Coastal NCCP Reserve

System. Potential habitat of A.

brauntonii occurs within the North

Ranch Policy Plan Area in the Central

and Coastal Subregion, which is a

specifically designated area where

conservation planning has been delayed

due to the lack of detailed information

on the life history of the species in this

area. The Central and Coastal

Subregional Natural Community

Conservation Plan/Habitat Conservation

Plan contains planning policies

intended to guide future conservation

planning in this area, which will focus

on protecting regional biodiversity

values and unique and sensitive

resources (USFWS, in litt., 1996).

Therefore, protection and management

of A. brauntonii via future preserves and

fire management could occur in this

area of the subregion. Even if this

population is protected, however, the

overall status of the species remains

threatened, making its listing

appropriate.

Dudleya cymosa ssp. ovatifolia is a

covered species under the plan and the

two Orange County populations are

conserved. Under an agreement with the

participants, CDFG, and the Service,

future potential impacts for covered

species are considered adequately

addressed through the minimization

and mitigation measures specified in the

Central/Coastal NCCP, including

establishment and long-term

management of a preserve system.

Although the two populations in Orange

County are protected from threats

(USFWS, in litt., 1996), the majority of

the distribution of D. cymosa ssp.

ovatifolia, which is outside Orange

County, is not protected and the overall

status of the subspecies remains

threatened.

While the public agencies that

manage lands with occurrences of these

and other sensitive plant taxa have a

mandate to protect the resources, none

of those agencies has specific

management plans for the taxa in this

rule. Dual mandates for recreation and

preservation by the NPS sometimes

result in impacts to sensitive resources.

For example, in the Rocky Oaks unit of

the Santa Monica Mountains National

Recreation Area (SMMNRA), equestrian

trail use has eliminated subpopulations

of Pentachaeta lyonii. No monitoring of

rare plants is being conducted by the

SMMNRA (D. Hickson, in litt., 1994).

When the SMMNRA was authorized by

Congress in 1978, it was given the

authority to comment on projects being

proposed within the ‘‘sphere of

influence’’ of the SMMNRA planning

area. However, such comments made by

the SMMNRA are not binding upon the

project proponent.

Public agencies reviewing requests for

large development projects are required

by CEQA to conduct surveys of the

biological resources of a project site.

Sensitive species located during surveys

are to be reported to the NDDB, which

is maintained by the CDFG’s Natural

Heritage Division. Occasionally the

project proponent considers the

information proprietary and the

consulting biologists may not report

complete information to the NDDB

(USFWS 1994). This has the potential to

further aggravate the endangerment of

those species.

E. Other Natural or Manmade Factors

Affecting its Continued Existence

The grasslands of California have

been affected by grazing for 200 years,

resulting in a type-conversion from
4180 Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Rules and Regulations

native, annual and perennial grass and

herb species to aggressive, non-native

annual species.

The fire management policy of the last

200 years has been one of fire exclusion,

which has disrupted natural processes,

causing an imbalance in ecosystem

functioning in grasslands, coastal sage

scrub, chaparral, and oak woodlands.

Most California habitats are highly

adapted to periodic fires. The disruption

of ecological processes has not been

uniform. In interior blocks of large

habitat, the reduction of fire frequency

(by fire suppression) has resulted in an

accumulation of fuels in woody

vegetation, making fire intensity and

duration more severe. In contrast,

wildlands in proximity to urban areas

have been subjected to increased fire

frequencies. In addition, range

management practices have used high

fire frequencies to change the vegetation

type from shrub to grass (Biswell 1989).

Fire frequencies of one to ten years can

reduce species diversity by causing the

elimination of species dependent on

longer periods of time between fires to

re-establish seed banks.

The Nature Conservancy has

established a preserve to protect habitat

for Cupressus forbesii (Tecate cypress)

and a portion of the local Astragalus

brauntonii population. However, the fire

management required for the protection

of the approved developments adjacent

to habitat for these species poses a

conflict. Varied and controversial fire

management policies have been

implemented in southern California,

generally without any clear

understanding of their long-term

ecological effects. The emphasis on fire

suppression during the last century has

had a significant effect on natural fire

frequencies, intensities and size. Where

fire suppression has been successful,

there is a resulting fuel overloading and

when an ignition event takes place, the

resulting fires are usually intense and

large. Fire frequencies close to the

urban/wildland interface are often

higher, a result of increased arsoncaused ignitions. A vegetation

management program was initiated in

1980 when the governor of California

approved Senate Bill 1704, entitled

‘‘Prescribed Burning: Brush-Covered

Lands’’ (Biswell 1989). Current fire

management prescriptions, including

wet season burns and crush and burn

techniques, are questionable

management tools for maintenance of

sensitive species habitats. When soil

and fuel moisture are high, burning

intensity may not be sufficient to induce

germination; conversely, the crush and

burn technique may cause increased

intensity and destroy species in the seed

bank (White 1990). The use of

prescribed fire as a habitat management

tool for Astragalus brauntonii and

Pentachaeta lyonii will be difficult

because approved development is

situated extremely close to ‘‘protected’’

populations (C. Wishner, pers. comm.,

1994). Fire suppression activities have

resulted in the extirpation of Astragalus

brauntonii habitat during the Old

Topanga fire of 1993 (S. Goode, pers.

comm., 1994) and Pentachaeta lyonii

habitat during the Greenmeadow fire of

1993 (C. Wishner, pers. comm., 1994).

Air pollution impacts to coastal sage

scrub have been documented in the

Santa Monica Mountains as a threat to

the viability and functioning of the

habitat (O’Leary 1990). Niebla

ceruchoides, a small cushion lichen,

apparently functions as a nursery for

seedling establishment of Dudleya

verityi. The population of Niebla on

Conejo Mountain is the largest on the

mainland (it is also known from the

California Channel Islands).

Occurrences of Niebla in coastal sage

scrub habitats of coastal southern

California are being reduced by habitat

loss and air pollution (Riefner 1992).

At least two populations of

Pentachaeta lyonii have been eliminated

from the secondary effects of gophertilling of the soil, which facilitates the

growth of competitive non-native

weeds. Stable populations of

Pentachaeta lyonii occur in sites that

have a crusty soil surface that results in

lower spatial competition from nonnative annual grasses. When the crust is

broken, the aggressive non-native

annual weeds have displaced

Pentachaeta lyonii (NDDB 1994).

Human-caused disturbances, such as

roads, trails, and minor landform

alterations, have functioned to provide

a zone where the competition from

aggressive, non-native annual weeds is

reduced, thereby allowing Pentachaeta

lyonii to grow. This artificial habitat

contains a zone of highly compacted

soils devoid of vegetation graduating to

a zone of high vegetative cover. Between

the zones is a narrow strip of habitat of

reduced competition where Pentachaeta

lyonii occasionally occurs. It is not

disturbance that is required for viable

Pentachaeta lyonii habitat, rather it is

the reduced competition from nonnative species such as Avena spp. (wild

oats), Bromus spp. (brome grass), and

Centaurea melitensis (tocalote) (CDFG

1989).

Changes in the intensity of

disturbance have eradicated colonies of

Pentachaeta lyonii on NPS land. A

linear habitat alongside a trail supported

a small population for several years;

however, a significant increase in

equestrian use changed the character of

the minor disturbance that foot traffic

generated. The soils changed in texture

from compacted to powder and the

width of the tread increased,

eliminating the narrow band of habitat

occupied by Pentachaeta lyonii.

Another colony on the same parkland

was significantly reduced by

recreational trampling. The colony

occurred alongside an artificial pond

that was used by swimmers and

picnickers who spread blankets and

towels over the site. That colony was

fenced in 1988 to prevent further

impacts, but did not show signs of

recovery (CDFG 1989).

Dudleya cymosa ssp. marcescens is

negatively affected at four sites by

recreational activities, primarily rock

climbing. Plants are uprooted and

destroyed by rappeling and boulder

climbing activities. In addition, fire has

been observed to severely reduce

population densities and destroy the

moss substrate that Dudleya cymosa ssp.

marcescens requires (M. Dodero, pers.

comm., 1992).

By virtue of the limited number of

individuals and/or range of the existing

populations, at least three (Astragalus

brauntonii, Dudleya abramsii ssp.

parva, Dudleya verityi) of the taxa in

this rule are threatened with extinction

from naturally occurring events. Genetic

viability is reduced in small

populations, making them vulnerable to

extinction by a single human-caused or

natural event. The potential for

extinction owing to small population

size or a highly restricted range is

exacerbated by natural causes such as

fire, drought, rock slides, or disease.

The Service has carefully assessed the

best scientific and commercial

information available regarding the past,

present, and future threats faced by

these taxa in determining to make this

final rule. Based on this evaluation, the

preferred action is to list Astragalus

brauntonii and Pentachaeta lyonii as

endangered, and Dudleya cymosa ssp.

marcescens, Dudleya cymosa ssp.

ovatifolia, Dudleya abramsii ssp. parva,

and Dudleya verityi as threatened. The

six taxa are individually threatened by

one or more of the following—habitat

alteration and destruction resulting from

urban development; recreational

activities; alteration of natural fire

cycles within the coastal sage scrub,

chaparral, grassland, and oak woodland

communities; displacement by nonnative weeds; and over-collection. The

limited distribution of habitat for certain

taxa (e.g., Dudleya verityi) and their

small population size (e.g., Astragalus

brauntonii) makes them particularly
Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Rules and Regulations 4181

vulnerable to extinction from naturally

occurring events.

Because Astragalus brauntonii and

Pentachaeta lyonii are in danger of

extinction throughout all or a significant

portion of their ranges, they meet the

definition of endangered as defined in

the Act. The Service has determined

that threatened status rather than

endangered status is appropriate for

Dudleya abramsii ssp. parva, D. cymosa

ssp. marcescens, D. cymosa ssp.

ovatifolia, and D. verityi because these

taxa are restricted to habitats that are

somewhat less vulnerable to the threat

of development. Certain populations of

D. cymosa ssp. marcescens and D.

cymosa ssp. ovatifolia occurring on

lands owned and managed by the DPR

are protected from the destruction of

habitat by development. However,

habitat degradation due to recreational

activities such as rock climbing

continues. Management activities, such

as the establishment of a regional parks

system by COSCA, have somewhat

reduced the potential for habitat

destruction for D. abramsii ssp. parva.

In the case of D. verityi, the County of

Ventura has produced a study to

determine the most feasible portion(s) of

Conejo Mountain for acquisition as

permanent open space. Despite these

management activities, occurrences of

these four taxa receive no protection

where they occur on private lands and

efforts to secure additional protection

for certain sites have yet to be achieved.

These four taxa appear to be likely to

become endangered species within the

foreseeable future. Critical habitat is not

being proposed for these taxa for

reasons discussed in the ‘‘Critical

Habitat’’ section of this final rule.

Critical Habitat

Critical habitat is defined in section 3

of the Act as: (i) the specific areas

within the geographical area occupied

by a species, at the time it is listed in

accordance with the Act, on which are

found those physical or biological

features (I) essential to the conservation

of the species and (II) that may require

special management considerations or

protection and; (ii) specific areas

outside the geographical area occupied

by a species at the time it is listed, upon

the determination that such areas are

essential for the conservation of the

species. ‘‘Conservation’’ means the use

of all methods and procedures needed

to bring the species to the point at

which listing under the Act is no longer

necessary.

Section 4(a)(3) of the Act, as

amended, and implementing regulations

(50 CFR 424.12) require that, to the

maximum extent prudent and

determinable, the Secretary designate

critical habitat at the time the species is

determined to be endangered or

threatened. The Service finds that

designation of critical habitat would not

be prudent for these six plant taxa.

Service regulations (50 CFR

424.12(a)(1)) state that designation of

critical habitat is not prudent when one

or both of the following situations

exist—(1) the species is threatened by

taking or other human activity, and

identification of critical habitat can be

expected to increase the degree of threat

to the species, or (2) such designation of

critical habitat would not be beneficial

to the species.

As discussed under Factor A in the

‘‘Summary of Factors Affecting the

Species’’ section, both Astragalus

brauntonii and Pentachaeta lyonii face

numerous anthropogenic threats and

these species occur mostly on private

land. The publication of precise maps

and descriptions of critical habitat in

the Federal Register would make these

plants more vulnerable to incidents of

vandalism and, therefore, could

contribute to the decline of these

species. As discussed under Factor B, A.

brauntonii and the four Dudleya taxa are

particularly threatened by

overcollection, an activity difficult to

regulate and enforce. Taking is only

regulated by the Act with respect to

plants in cases of (1) removal and

reduction to possession of federally

listed plants from lands under Federal

jurisdiction, or their malicious damage

or destruction on such lands; and (2)

removal, cutting, digging-up, or

damaging or destroying in knowing

violation of any State law or regulation,

including State criminal trespass law.

Publication of critical habitat

descriptions and maps would make A.

brauntonii and the four Dudleya taxa

more vulnerable to overcollection and

taking.

Each of the taxa in this rule is known

to occur, at least in part, on privately

owned lands. Critical habitat

designation provides protection only on

Federal lands or on private lands when

there is Federal involvement through

authorization or funding of, or

participation in, a project or activity.

The limited number of populations that

occur on Federal lands are managed by

the NPS, for which management of

listed species is a high priority. All

Federal and State agencies and local

planning agencies involved have been

notified of the location and importance

of protecting the habitat of these plant

taxa. Protection of their habitat will be

addressed through the recovery process

and through the section 7 consultation

process. Section 7(a)(2) of the Act

requires Federal agencies, in

consultation with the Service, to ensure

that any action authorized, funded, or

carried out by such agency, does not

jeopardize the continued existence of a

federally listed species, or does not

destroy or adversely modify designated

critical habitat. The taxa in this rule are

all confined to small geographic areas

and each population is composed of so

few individuals that the determinations

for jeopardy and adverse modification

would be similar. Therefore, designation

of critical habitat provides no additional

benefit beyond those that these taxa

would receive by virtue of their listing

as endangered or threatened species and

likely would increase the degree of

threat from vandalism, collecting, or

other human activities. The Service

finds that designation of critical habitat

for these plants is not prudent at this

time.

Available Conservation Measures

Conservation measures provided to

species listed as endangered or

threatened under the Endangered

Species Act include recognition,

recovery actions, requirements for

Federal protection, and prohibitions

against certain practices. Recognition

through listing encourages and results

in conservation actions by Federal,

State, and private agencies, groups, and

individuals. The Act provides for

possible land acquisition and

cooperation with the states and requires

that recovery actions be carried out for

all listed species. The protection

required of Federal agencies and the

prohibitions against certain activities

involving listed plants are discussed, in

part, below.

Section 7(a) of the Act, as amended,

requires Federal agencies to evaluate

their actions with respect to any species

that is proposed or listed as endangered

or threatened and with respect to its

critical habitat, if any is being

designated. Regulations implementing

this interagency cooperation provision

of the Act are codified at 50 CFR part

402. Section 7(a)(2) requires Federal

agencies to insure that activities they

authorize, fund, or carry out are not

likely to jeopardize the continued

existence of such a species or to destroy

or adversely modify its critical habitat.

If a Federal action may affect a listed

species or its critical habitat, the

responsible Federal agency must enter

into formal consultation with the

Service.

Five of the taxa, Astragalus

brauntonii, Dudleya cymosa ssp.

marcescens, D. cymosa ssp. ovatifolia,

D. verityi, and Pentachaeta lyonii, occur

within the current boundaries of the
4182 Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Rules and Regulations

SMMNRA. Land acquisition activities

for conservation purposes are possible

within the SMMNRA boundary and

could include unprotected populations

of these plant taxa. Activities that could

potentially affect these taxa and their

habitats on NPS lands are primarily

recreational activities including hiking,

equestrian use, and rock climbing.

Urban development projects occurring

on private lands may need permits from

Federal agencies, such as section 404

permits from the U.S. Army Corps of

Engineers.

The Act and its implementing

regulations set forth a series of general

prohibitions and exceptions that apply

to all threatened and endangered plants.

All prohibitions of section 9(a)(2) of the

Act, implemented by 50 CFR 17.61 for

endangered plants, and 17.71 for

threatened 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 the species to possession from

areas under Federal jurisdiction. In

addition, for plants listed as

endangered, the Act prohibits the

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 including State criminal

trespass law. Section 4(d) of the Act

allows for the provision of such

protection to threatened species through

regulation. This protection may apply to

these taxa in the future if regulations are

promulgated. Seeds from cultivated

specimens of threatened plants are

exempt from these provisions provided

that their containers are marked ‘‘Of

Cultivated Origin.’’ Certain exceptions

to the prohibitions apply to agents of the

Service and State conservation agencies.

It is the policy of the Service to

increase public understanding of the

prohibited acts that will apply under

section 9 of the Act. Four of the taxa in

this rule (Astragalus brauntonii,

Dudleya cymosa ssp. marcescens, D.

cymosa ssp. ovatifolia, and Pentachaeta

lyonii) are known to occur on lands

under Federal jurisdiction. Collection,

damage, or destruction of these taxa is

prohibited without a Federal

endangered species permit. Such

activities on non-Federal lands would

constitute a violation of section 9 if

conducted in knowing violation of

California State laws, or in violation of

a California State criminal trespass law.

All of the Dudleya taxa in this rule are

of horticultural interest; however, they

are not currently known to be in

commercial trade. Intrastate commerce

(commerce within a State) is not

prohibited under the Act. However,

interstate and foreign commerce (sale or

offering for sale across State or

international boundaries) requires a

Federal endangered species permit.

(Endangered species may be advertised

for sale provided the advertisement

contains a statement that no sale may be

consummated until a permit has been

obtained from the Service).

The Act and 50 CFR 17.62, 17.63, and

17.72 also provide for the issuance of

permits to carry out otherwise

prohibited activities involving

endangered or threatened species under

certain circumstances. Such permits are

available for scientific purposes and to

enhance the propagation or survival of

the species. For threatened plants,

permits are also available for botanical

or horticultural exhibition, educational

purposes, or special purposes consistent

with the purposes of the Act. It is

anticipated that few trade permits

would ever be sought or issued because

the species are not in commercial

cultivation or common in the wild.

Questions regarding whether specific

activities will constitute a violation of

section 9 of the Act should be directed

to the Assistant Field Supervisor of the

Service’s Ventura Field Office (see

ADDRESSES section). Requests for copies

of the regulations regarding listed

species and inquiries about prohibitions

and regulations may be addressed to the

U.S. Fish and Wildlife Service,

Ecological Services, Endangered Species

Permits, 911 NE 11th Avenue, Portland,

Oregon 97232–4181 (telephone: 503/

231–6241; facsimile: 503/231–6243).

National Environmental Policy Act

The Service has determined that

Environmental Assessments and

Environmental Impact Statements, as

defined under the authority of the

National Environmental Policy Act of

1969, need not be prepared in

connection with regulations adopted

pursuant to section 4(a) of the

Endangered Species Act of 1973, as

amended. A notice outlining the

Service’s reasons for this determination

was published in the Federal Register

on October 25, 1983 (48 FR 49244).

Required Determinations

The Service has examined this

regulation under the Paperwork

Reduction Act of 1995 and found it to

contain no information collection

requirements. This rulemaking was not

subject to review by the Office of

Managment and Budget under Executive

Order 12866.

References Cited

A complete list of all references cited

herein is available upon request from

the Service’s Ventura Field Office (see

ADDRESSES section).

Author

The primary author of this final rule

is Tim Thomas, Ventura Field Office

(see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements, and

Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of

chapter I, title 50 of the Code of Federal

Regulations, is amended 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 to read as follows:

§ 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

Species

Historic range Family Status When

listed

Critical

habitat

Special

rules Scientific name Common name

FLOWERING PLANTS

* * * * * * *

Astragalus brauntonii ... Braunton’s milk-vetch U.S.A. (CA) ................ Pea (Fabaceae) ......... E 606 NA NA
Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Rules and Regulations 4183

Species

Historic range Family Status When

listed

Critical

habitat

Special

rules Scientific name Common name

* * * * * * *

Dudleya abramsii ssp.

parva.

Conejo dudleya .......... U.S.A. (CA) ................ Stonecrop

(Crassulaceae).

T 606 NA NA

Dudleya cymosa ssp.

marcescens.

Marcescent dudleya ... U.S.A. (CA) ................ Stonecrop

(Crassulaceae).

T 606 NA NA

Dudleya cymosa ssp.

ovatifolia.

Santa Monica Mountains dudleya.U.S.A. (CA) ................ Stonecrop

(Crassulaceae).

T 606 NA NA

* * * * * * *

Dudleya verityi ............. Verity’s dudleya ......... U.S.A. (CA) ................ Stonecrop

(Crassulaceae).

T 606 NA NA

* * * * * * *

Pentachaeta lyonii ....... Lyon’s pentachaeta ... U.S.A. (CA) ................ Aster (Asteraceae) ..... E 606 NA NA

* * * * * * *

Dated: December 26, 1996.

Jay L. Gerst,

Acting Director, Fish and Wildlife Service.

[FR Doc. 97–2059 Filed 1–28–97; 8:45 am]

BILLING CODE 4310–55–P

50 CFR Part 17

RIN 1018–AB75

Endangered and Threatened Wildlife

and Plants; Determination of

Threatened Status for the Northern

Population of the Copperbelly Water

Snake

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: The U.S. Fish and Wildlife

Service (Service) determines threatened

species status pursuant to the

Endangered Species Act of 1973, as

amended (Act), for the copperbelly

water snake (Nerodia erythrogaster

neglecta) in the northern portion of its

range. The Service also determines that

the copperbelly water snake does not

warrant listing as a threatened species

in the southern portion of its range and

is not finalizing that portion of the

proposal. This snake was referred to as

the northern copperbelly water snake in

several previous Federal Register

publications. Historical records and

recent studies indicate that this animal

has declined substantially, especially in

the northern portion of its range, and

now persists largely in isolated pockets

of suitable habitat. Rangewide, the

snake has been impacted by a variety of

human-induced causes, including

urban/suburban encroachment, coal

mining, and wetland drainage. These

impacts continue to threaten the snake

in the northern portion of its range but

are being substantially reduced in the

southern portion of its range due to

modifications in surface coal mining

and reclamation practices.

EFFECTIVE DATE: February 28, 1997.

ADDRESSES: The complete file for this

rule is available for inspection, by

appointment, during normal business

hours at the Service’s Bloomington

Field Office, 620 South Walker Street,

Bloomington, Indiana 47403; telephone

812/334–4261.

FOR FURTHER INFORMATION CONTACT:

David Hudak, Field Supervisor (see

ADDRESSES section), 812/334–4261,

extension 200.

SUPPLEMENTARY INFORMATION:

Background

The plain-belly water snake (Nerodia

erythrogaster) was formally described as

a species in 1938 as Natrix erythrogaster

(Clay 1938). The copperbelly water

snake, Nerodia erythrogaster neglecta,

was recognized as a distinct subspecies

in 1949 (Conant 1949). It is one of six

recognized subspecies of the plain-belly

water snake (McCranie 1990). The Act

defines ‘‘species’’ to include ‘‘any

subspecies of fish or wildlife or plants,

and any distinct population segment of

any species of vertebrate fish or wildlife

. . .’’ (section 3(15)). Thus, although

taxonomically recognized as a

subspecies, N. e. neglecta will be

referred to as a ‘‘species’’ through the

remainder of this rule. This legal, as

opposed to biological, use of the term

‘‘species’’ should not be understood to

mean that this rule covers the entire

species Nerodia erythrogaster. The two

decisions announced in this rule apply

only to the subspecies N. e. neglecta.

Because N. e. neglecta was not

recognized until 1949, museum

specimens of the copperbelly water

snake archived before that time were

identified only as the plain-belly water

snake. Correction of these mislabelled

specimens is difficult due to the rapid

fading of colors from preserved

specimens. Thus, the original range and

distribution of the copperbelly water

snake is not precisely known due to this

taxonomic history and the loss of

suitable habitat before recognition of the

copperbelly water snake as a distinct

subspecies (Conant 1949, 1951, 1955;

Minton 1972).

The key field identification feature of

the copperbelly water snake is its

coloration. The snake has a solid dark,

usually black, back with a bright orangered underside that is visible from a side

view. The head and eyes of the

copperbelly water snake are

proportionally larger than similar

species (Clay 1938; Conant 1938, 1951;

Minton 1972). The copperbelly water

snake is most often confused with the

yellowbelly water snake (Nerodia

erythrogaster flavigaster), an adjacent

subspecies to the south and west in

Illinois and Kentucky. The most obvious

single distinguishing characteristic is

the belly color. The copperbelly water

snake has a bright orange-red underside,

whereas the yellowbelly water snake

has a pale yellow belly. In addition, it

has blotches of dark pigment extending

onto the ventral scales that meet or

nearly meet at the belly, whereas the

yellowbelly water snake has dark

pigment encroaching onto only the edge

of the ventral scales (Brandon and

Blanford 1995; Minton 1972; Conant

1938, 1949).

After its recognition as a subspecies,

the known historical range of the

copperbelly water snake was described

by Schmidt (1953) as ‘‘south central

Michigan and northwestern Ohio,

southwestward through Indiana to

extreme southeastern Illinois and

adjacent Kentucky.’’ A notable feature of

the documented historical range is the