61916 Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Rules and Regulations

requirements, as described above, it is

not subject to RFA.

G. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A), added by

the Small Business Regulatory

Enforcement Fairness Act of 1996

(SBREFA), EPA submitted, by the date

of publication of this rule, a report

containing this rule and other required

information to the U.S. Senate, the U.S.

House of Representatives and the

Comptroller General of the General

Accounting Office. This rule is not a

‘‘major rule’’ as defined by 5 U.S.C.

804(2), as amended.

H. Paperwork Reduction Act

This rule does not contain any

information collection requirements

which require OMB approval under the

Paperwork Reduction Act (44 U.S.C.

3501 et seq.)

I. Judicial Review

Under CAA section 307(b)(1), a

petition to review today’s action may be

filed in the Court of Appeals for the

District of Columbia within 60 days of

November 20, 1997.

Dated: November 14, 1997.

Carol M. Browner,

Administrator.

[FR Doc. 97–30520 Filed 11–19–97; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 81

Clean Air Act Promulgation of

Extension of Attainment Date for the

Portland, Maine, Moderate Ozone

Nonattainment Area

CFR Correction

In Title 40 of the Code of Federal

Regulations, parts 81 to 85, revised as of

July 1, 1997, make the following

correction:

On page 180, in § 81.320, in the table

under the heading ‘‘Maine—Ozone’’,

footnote 2 is corrected to read

‘‘Attainment date extended to November

15, 1997.’’.

BILLING CODE 1505–01–D

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AD14

Endangered and Threatened Wildlife

and Plants; Determination of

Endangered Status for Two Tidal

Marsh Plants—Cirsium hydrophilum

var. hydrophilum (Suisun Thistle) and

Cordylanthus mollis ssp. mollis (Soft

Bird’s-Beak) From the San Francisco

Bay Area of California

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: The U.S. Fish and Wildlife

Service (Service) determines

endangered status pursuant to the

Endangered Species Act of 1973, as

amended (Act), for two plants—Cirsium

hydrophilum var. hydrophilum (Suisun

thistle) and Cordylanthus mollis ssp.

mollis (soft bird’s-beak). These species

are restricted to salt and brackish tidal

marshes within the San Francisco Bay

area in northern California. Habitat

conversion, water pollution, changes in

salinity, indirect effects of urbanization,

mosquito abatement activities

(including off-road vehicle use),

competition with non-native vegetation,

insect predation, erosion, and other

human-caused actions threaten these

two species. This rule implements the

Federal protection and recovery

provisions afforded by the Act for these

plants.

EFFECTIVE DATE: December 22, 1997.

ADDRESSES: The complete file for this

rule is available for inspection, by

appointment, during normal business

hours at the U.S. Fish and Wildlife

Service, Sacramento Fish and Wildlife

Office, 3310 El Camino, Suite 130,

Sacramento, California 95821–6340.

FOR FURTHER INFORMATION CONTACT:

Kirsten Tarp (telephone 916/979–2120)

and Matthew D. Vandenberg (telephone

916/979–2752), staff biologists at the

Sacramento Fish and Wildlife Office

(see ADDRESSES section); FAX 916/979–

2723.

SUPPLEMENTARY INFORMATION:

Background

Cirsium hydrophilum var.

hydrophilum (Suisun thistle) and

Cordylanthus mollis ssp. mollis (soft

bird’s-beak) occur in salt and brackish

tidal marshes fringing San Pablo and

Suisun Bays in the San Francisco Bay

area of northern California. Since 1850,

this habitat has been drastically

reduced. Approximately 15 percent, or

12,142 hectares (ha) (30,000 acres), of

the historical tidal marshland habitat

within the San Francisco Bay area

remains (Dedrick 1989).

With the exception of the San

Francisco Bay area, the mountainous

coast of California and the narrow

continental shelf provide few areas that

are suitable for tidal marsh development

(MacDonald 1990). Coastal salt marshes

are found along sheltered margins of

shallow bays, estuaries, or lagoons, in

low lying areas that are subject to

periodic inundation by salt water.

Brackish marshes occur at the interior

margins of coastal bays, estuaries, or

lagoons where fresh water sources

(streams and rivers) enter salt marshes.

Brackish marshes are similar to salt

marshes but differ in the degree of water

and soil salinity. Brackish marshes are

less saline than salt marshes. Salinity

levels vary with time, tides, and the

amount of freshwater inflow. Vegetation

communities in salt and brackish

marshes often occur in distinct zones,

depending on the frequency and length

of tidal flooding. Cirsium hydrophilum

var. hydrophilum and Cordylanthus

mollis ssp. mollis are restricted to a

narrow tidal band, typically in higher

elevational zones within larger tidal

marshes that have fully developed tidal

channel networks. These plants usually

do not occur in smaller fringe tidal

marshes that are generally less than 100

meters (m) (300 feet (ft)) in width, or in

non-tidal areas.

Discussion of the Two Species

Asa Gray (1888) originally described

Cirsium hydrophilum var. hydrophilum

as Cnicus breweri var. vaseyi.

Subsequent authors treated the taxon as

Carduus hydrophilus (Greene 1892),

Cirsium hydrophilum (Jepson 1901),

and Cirsium vaseyi var. hydrophilum

(Jepson 1925). John Thomas Howell

(1959) concluded that Jepson’s Cirsium

hydrophilum and Cirsium vaseyi of the

Mt. Tamalpais area in Marin County,

California are varieties of a single

species, Cirsium hydrophilum.

According to the rules for botanical

nomenclature, when a new variety is

described in a species not previously

divided into intraspecific taxa, an

autonym (automatically created name)

is designated. In this case, the autonym

is Cirsium hydrophilum var.

hydrophilum.

Cirsium hydrophilum var.

hydrophilum is a perennial herb in the

aster family (Asteraceae). Slender, erect

stems 1.0 to 1.5 m (3.0 to 4.5 ft) tall are

well branched above. The spiny leaves

are deeply lobed. The lower leaves have

ear-like basal lobes; the upper leaves are
Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Rules and Regulations 61917

reduced to narrow strips with strongly

spine-toothed margins. Pale lavenderrose flower heads, 2.0 to 2.5 centimeters

(cm) (1 inch (in.)) long, occur singly or

in loose groups. The bracts of the flower

heads have a distinct green, glutinous

ridge on the back that distinguishes

Cirsium hydrophilum var. hydrophilum

from other Cirsium species in the area.

Cirsium hydrophilum var. hydrophilum

flowers between July and September.

Cirsium hydrophilum var.

hydrophilum is restricted to Suisun

Marsh in Solano County. In 1975, the

plant was reported as possibly extinct

because it had not been collected for

about 15 years. Extensive surveys found

the thistle at two locations within

Suisun Marsh (Brenda Grewell,

California Department of Water

Resources (CDWR), pers. comm. 1993),

however, unoccupied suitable habitat

for Cirsium hydrophilum var.

hydrophilum exists outside these sites

in the upper reaches of tidal marshes in

Solano County. Collectively, the

occurrences of Cirsium hydrophilum

var. hydrophilum total a few thousand

individuals (Brenda Grewell, pers.

comm. 1993) occupying a total area of

less than 1 acre. Cirsium hydrophilum

var. hydrophilum grows in the upper

reaches of tidal marshes associated with

Typha angustifolia (narrow-leaf cattail),

Scirpus americanus (Olney’s bulrush),

Juncus balticus (Baltic rush), and

Distichlis spicata (saltgrass). One

population is found on State land under

the jurisdiction of the California

Department of Fish and Game (CDFG)

and another population is on Solano

County Farmland and Open Space

Foundation lands. No active

management is occurring at either

location (Neil Havlik, Solano County

Farmland and Open Space Foundation,

pers. comm. 1993; Ann Howald, CDFG,

pers. comm. 1993). Habitat conversion

and fragmentation, indirect effects from

urban development, increased salinity,

projects that alter the natural tidal

regime, mosquito abatement activities,

and competition with non-native plants,

threaten this taxon. The highly

restricted distribution of Cirsium

hydrophilum var. hydrophilum

increases its susceptibility to

catastrophic events such as pest

outbreaks, severe drought, oil spills, or

other natural or human caused disasters.

Charles Wright collected the type

specimen of Cordylanthus mollis ssp.

mollis in November 1855, on Mare

Island in San Francisco Bay. Asa Gray

(1868) published the original

description, using the name

Cordylanthus mollis. Later botanists

treated the taxon as Adenostegia mollis

(Greene 1891) and Chloropyron molle

(Heller 1907). Tsan-Iang Chuang and

Larry Heckard (1973) treated

Cordylanthus mollis and Cordylanthus

hispidus as subspecies of a single

species (Cordylanthus mollis) with

Cordylanthus mollis ssp. mollis

recognized as the autonym.

Cordylanthus mollis ssp. mollis is an

annual herb of the snapdragon family

(Scrophulariaceae) that grows 25 to 40

cm (10 to 16 in.) tall. It is sparingly

branched from the middle and above.

Cordylanthus mollis ssp. mollis is a

hemiparasite (i.e., partially parasitic)

that extracts water and nutrients by

attaching enlarged root structures to the

roots of other plants (Chuang and

Heckard 1971). The foliage is grayishgreen (often tinged a deep red) and

hairy. The oblong to lance-shaped

leaves are 1.0 to 2.5 cm (0.4 to 1.0 in.)

long, the lower leaves entire and the

upper with one to three pairs of leaf

lobes. The inflorescence consists of

spikes 5 to 15 cm (2 to 6 in.) long. A

floral bract with two to three pairs of

lobes occurs immediately below each

inconspicuous white or yellowish-white

flower. The flowers have only two

functional stamens. The narrow ovoid

seed capsule is 6 to 10 millimeters (mm)

(0.2 to 0.4 in.) long and bears 20 to 30

dark brown seeds. Flowering occurs

between July and September.

Cordylanthus mollis ssp. mollis is

distinguished from another

Cordylanthus found nearby (C.

maritimus ssp. palustris) by its two

functional stamens (C. maritimus ssp.

palustris has four) and by its bracts with

two to three pairs of lateral lobes (C.

maritimus ssp. palustris has a pair of

short teeth on the floral bracts).

Cordylanthus mollis ssp. mollis is

closely related to Cordylanthus mollis

ssp. hispidus and can be differentiated

most consistently from Cordylanthus

mollis ssp. hispidus on spike length and

seed size.

Cordylanthus mollis ssp. mollis is

found predominantly in the upper

reaches of salt grass-pickleweed

marshes at or near the limits of tidal

action (Stromberg 1986). It is associated

with Salicornia virginica (Virginia

glasswort), Distichlis spicata, Jaumea

carnosa (fleshy jaumea), Frankenia

salina (alkali heath), and Triglochin

maritima (arrow-grass) (Stromberg

1986). There have been 21 reported

locations of Cordylanthus mollis ssp.

mollis. Two sites, Denverton and

Berkeley, were erroneous locations. Five

sites (Mare Island, Martinez, Burdell

Station, Bentley Wharf, and Antioch

Bridge) have been extirpated by habitat

loss or modification. Five other sites

surveyed in 1993 no longer had the

plants, although some potential habitat

still existed. Nine sites are presumed to

still exist (California Natural Diversity

Data Base (CNDDB) 1996; Jake Ruygt,

California Native Plant Society (CNPS),

in litt. 1996). The type locality at Mare

Island for Cordylanthus mollis ssp.

mollis was destroyed by development

and is now a dredge disposal site

(CNDDB 1994). A second occurrence,

last seen in 1981 near Martinez in

Contra Costa and Solano Counties, was

dredged, filled, diked, and is now a

marina (Stromberg 1986, CNDDB 1994).

The remaining nine occurrences are

widely scattered throughout coastal salt

or brackish tidal marshes fringing San

Pablo and Suisun Bays, in Contra Costa,

Napa, and Solano Counties (CNDDB

1994; Brenda Grewell, in litt. 1993; Jake

Ruygt, in. litt. 1996). Three sites, Pt.

Pinole, Rush Ranch, and Joice Island

Bridge, have very limited habitat and

cover less than 0.4 ha (1 acre) each. The

population at Fagan Slough covers

approximately 1.2 ha (3 acres). The two

largest populations are located at Hill

Slough and at Concord Naval Weapons

Station, each covering approximately 4

ha (10 acres). The entire distribution of

Cordylanthus mollis ssp. mollis

currently is restricted to about 12 ha (31

acres) of occupied habitat (Jake Ruygt,

1994 and in litt. 1996). The total number

of individuals reported among

populations varies from 1 at the smallest

site to 150,000 plants at the largest site.

Of the remaining nine sites, one

(McAvoy) has only 23 plants. Most sites

have between 1,000 and 6,000

individuals (Jake Ruygt 1994; CNDDB

1996). Individual populations fluctuate

in size from year to year, as is typical

of annual plants. Cordylanthus mollis

ssp. mollis occurs primarily on private

or non-Federal land; the second largest

occurrence is found on Department of

Defense (U.S. Navy) land. Habitat

conversion and fragmentation, water

pollution, increases in salinity of tidal

marshes due to upstream withdrawals of

fresh water, projects that alter the

natural tidal regime, indirect effects of

urbanization, mosquito abatement

activities (including off-road vehicle

use), erosion, competition with nonnative vegetation, insect predation, and

other random events threaten the

remaining occurrences of Cordylanthus

mollis ssp. mollis.

The CDWR has conducted surveys for

Cordylanthus mollis ssp. mollis and

Cirsium hydrophilum var. hydrophilum,

and these surveys have not been limited

to known historic populations. The

CDWR has surveyed potential habitat

throughout Suisun Marsh, searched

portions of the potential habitat along

the Contra Costa shoreline, has assisted

with searches downstream of Suisun
61918 Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Rules and Regulations

Bay in the Carquinez Strait and Napa

marshes, and has surveyed diked

wetlands managed for waterfowl.

Despite these surveys, the CDWR has

found no new populations since their

original data submittal in 1993 (Randall

Brown in. litt. 1996).

Previous Federal Action

Federal government actions on the

two plants began as a result of section

12 of the Act, which directed the

Secretary of the Smithsonian Institution

to prepare a report on those plants

considered to be endangered,

threatened, or extinct in the United

States. This report, designated as House

Document No. 94–51, was presented to

Congress on January 9, 1975, and listed

Cirsium hydrophilum var. hydrophilum

and Cordylanthus mollis ssp. mollis as

possibly extinct. The Service published

a notice on July 1, 1975 (40 FR 27823),

of its acceptance of the report of the

Smithsonian Institution as a petition

within the context of section 4(c)(2)

(petition provisions now are found in

section 4(b)(3) of the Act) and its

intention thereby to review the status of

the plant taxa named therein. The above

two taxa were included in the July 1,

1975, notice. On June 16, 1976, the

Service published a proposal (41 FR

24523) to determine approximately

1,700 vascular plant species to be

endangered species pursuant to section

4 of the Act. The list of 1,700 plant taxa

was assembled on the basis of

comments and data received by the

Smithsonian Institution and the Service

in response to House Document No. 94–

51 and the July 1, 1975, Federal

Register publication. Cirsium

hydrophilum var. hydrophilum and

Cordylanthus mollis ssp. mollis were

included in the June 16, 1976, Federal

Register proposal.

General comments received on the

1976 proposal were summarized in an

April 26, 1978, notice (43 FR 17909).

The Act’s 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 a December 10,

1979, notice (44 FR 70796), the Service

withdrew the June 16, 1976, proposal,

along with four other proposals that had

expired.

The Service published an updated

Notice of Review for plants on

December 15, 1980 (45 FR 82480). The

two plant taxa were listed as category 1

candidates for Federal listing in this

document. Category 1 taxa were those

that the Service has on file substantial

information on biological vulnerability

and threats to support preparation of

listing proposals. On November 28,

1983, the Service published a

supplement to the Notice of Review (48

FR 53640); there were no changes to

these taxa in this supplement.

The plant notice was revised again on

September 27, 1985 (50 FR 39526),

February 21, 1990 (55 FR 6184), and

September 30, 1993 (58 FR 51144). In

these three notices Cirsium

hydrophilum var. hydrophilum and

Cordylanthus mollis ssp. mollis were

included as category 1 candidate

species. On February 28, 1996, the

Service published a Notice of Review in

the Federal Register (61 FR 7596) that

discontinued the use of candidate

categories and considered the former

category 1 candidates as simply

‘‘candidates’’ for listing purposes.

Section 4(b)(3)(B) of the Act requires

the Secretary to make certain findings

on 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 Cirsium hydrophilum var.

hydrophilum and Cordylanthus mollis

ssp. mollis, because the 1975

Smithsonian report had been accepted

as a petition. On October 13, 1982, the

Service found that the petitioned listing

of these 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). The finding was

reviewed annually from October 1983

through 1994, pursuant to section

4(b)(3)(C)(i) of the Act.

A proposal to list Cirsium

hydrophilum var. hydrophilum and

Cordylanthus mollis ssp. mollis as

endangered was published on June 12,

1995. The proposal was based on

information supplied by reports to the

California Diversity Database, and

observations and reports by numerous

botanists.

The processing of this final listing

rule conforms with the Service’s final

listing priority guidance published on

December 5, 1996 (61 FR 64475). The

guidance clarifies the order in which the

Service will process rulemakings

following two related events, the lifting

on April 26, 1996, of the moratorium on

final listings imposed on April 10, 1995

(Public Law 104–6) and 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

outstanding proposed listings. Tier 3

includes the processing of new

proposed listings for species facing high

magnitude threats, and processing

administrative findings on petitions.

Tier 4 includes the processing of critical

habitat designations. This final rule falls

under Tier 2.

This rule has been updated to reflect

any changes in distribution, status and

threats since the effective date of the

listing moratorium, and to incorporate

information obtained through the public

comment period. This additional

information was not of a nature to alter

the Service’s decision to list the species.

Summary of Comments and

Recommendations

In the proposed rule published June

12, 1995 in the Federal Register (60 FR

31000), all interested parties were

requested to submit factual reports or

information that might contribute to the

development of a final rule. The public

comment period closed on August 21,

1995. Appropriate State agencies,

county and city governments, Federal

agencies, scientific organizations, and

other interested parties were contacted

and requested to comment. A public

hearing request was received within 45

days of publication of the proposal from

Paul Campos, General Counsel for the

Building Industry Association. Because

a Congressional moratorium on the

Service’s activities associated with final

listing actions was in effect from April

1995 to April 1996, scheduling of the

hearing was delayed. The Service

subsequently scheduled and held the

public hearing on Wednesday, October

2, 1996, from 6:00 p.m. to 8:00 p.m. at

the Holiday Inn, 1350 Holiday Lane,

Fairfield, California. To accommodate

the hearing, the public comment period

was reopened on September 6, 1996,

and closed October 15, 1996. Notice of

the public hearing and reopening of the

public comment period was published

in the Federal Register September 6,

1996 (61 FR 47105) and in newspapers

including The Napa Register on

September 18, 1996, The San Francisco

Chronicle on September 18, 1996, The

Contra Costa Times on September 18,

1996, and The Fairfield Daily Republic

on September 19, 1996.

During the comment period, the

Service received comments (letters and

oral testimony) from a total of 14

people. Some people submitted more

than one comment to the Service. Six

commenters supported the listing, one

commenter opposed the listing, and

seven commenters are viewed as
Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Rules and Regulations 61919

neutral. One commenter submitted

comments late. Among the six

commenters supporting the listing are

the California Native Plant Society, the

University of California at Davis, and

the Napa-Solano Chapter of the

Audubon Society. Three commenters

provided detailed information on

locations, population sizes, and threats

to the species. These data have been

incorporated into this rule. Two

commenters stated that they were

researching the threats to the species

and hoped that the Service would be

available to work with them in the

creation of protection and/or mitigation

plans as necessary. One commenter

representing the Solano County

Mosquito Abatement District stated they

are willing to work with the Service to

avoid actions that may be damaging to

endangered plants and habitat.

Opposing comments and other

comments questioning the proposed

rule have been organized into specific

issues. These issues and the Service’s

response to each are summarized as

follows:

Issue 1: One commenter stated that

the Service should make the precise

locations of the two tidal plants

available to landowners and the

counties in which the species occur.

This information would help the

landowners ensure that activities they

conduct would not harm the two

species, if the species exist on their

property.

Service Response: In the proposed

rule, the Service stated that these plants

are restricted to salt or brackish tidal

marsh within Solano, Contra Costa, and

Napa counties. Individuals owning land

in these counties who believe that their

actions or activities may result in harm

to either of these two species should feel

free to provide the Service with detailed

maps of their lands prior to conducting

these activities so that the Service can

provide technical assistance on the

exact locations of these species. The

Service will make every effort to notify

landowners and seek cooperation with

surveys or other conservation efforts.

The complete file for this rule is

available for public inspection, and does

contain general information about

where the species occurs. The Service is

always willing to assist the public in

matters aimed at protecting sensitive

species.

Issue 2: One commenter was

concerned about the listing of

Cordylanthus mollis ssp. mollis,

although they did not formally object to

the listing. Specifically, the commenter

questioned what the legal protection

means to the subspecies when it is

similar in appearance to Cordylanthus

mollis ssp. hispidus and the two cannot

readily be distinguished in the field and

there is the possible occurrence of

hybridization.

Service Response: The taxonomy of

the subspecies has been clarified by

Chuang and Heckard (1971), with

Cordylanthus mollis ssp. mollis and

Cordylanthus mollis ssp. hispidus

separated primarily by habitat, spike

length, and seed size; and secondarily

by branching patterns and hirsuteness

(i.e., coarse stiff hairs). As with many

subspecies, though material may be

difficult to identify in the field,

Cordylanthus mollis ssp. mollis and

Cordylanthus mollis ssp. hispidus are

recognized as distinct subspecies

(Chuang and Heckard 1971, Chuang and

Heckard 1993). As the term ‘‘species’’ is

defined in the Act, the Service can

apply the protections of the Act to any

species or subspecies of fish, wildlife, or

plants, that meets the definition of

endangered or threatened. The Act does

not attempt to define ‘‘species’’ in

biological terms, and thus allows the

term to be applied according to the best

current biological information and

understanding of evolution, speciation,

and genetics.

Issue 3: One commenter questioned

whether mosquito abatement activities

had led to a decline in Cordylanthus

mollis ssp. mollis.

Service Response: As documented in

Factor ‘‘E’’ below, mosquito abatement

activities, resulting from increased

urbanization, have been observed to

adversely impact individual

Cordylanthus mollis ssp. mollis plants.

Issue 4: One commenter stated that

there were considerably more

populations of Cordylanthus mollis ssp.

mollis in Contra Costa County than

reported in the proposed rule, which

according to the commenter included

only the East Navy marsh and

Swanton’s or Hasting’s Slough Marsh.

Service Response: Populations

reported in the proposed rule as

occurring in Contra Costa County

included Pt. Pinole, McAvoy Boat

Harbor, Hasting’s Slough, and Concord

Naval Weapons Station. As mentioned

in the ‘‘Discussion of the Two Species’’

section, populations of annual plants

tend to fluctuate from year to year. The

Service views the additional

‘‘populations’’ of Cordylanthus mollis

ssp. mollis located at East Navy South,

Swanton’s SW, Swanton’s NW, and Pt.

Pinole to be extensions of existing

populations that were included in the

proposed rule, and not an expansion of

the overall range of this species.

Issue 5: One commenter questioned

the adequacy of many aspects of the

data used in the proposed rule. This

commenter stated that listing at this

time is premature and also was

concerned that the best available

knowledge, including information not

yet in print, be used in the rule.

Service Response: In accordance with

the ‘‘Interagency Cooperative Policy on

Information Standards under the

Endangered Species Act’’, published in

the Federal Register on July 1, 1994 (59

FR 34271), the Service impartially

reviews all scientific and other

information to ensure that any

information used to promulgate a

regulation to add a species to the list of

threatened and endangered species is

reliable, credible, and represents the

best scientific and commercial data

available. The Service used information

received from the California Natural

Diversity Data Base, knowledgeable

botanists, and from studies specifically

directed at gathering the information on

distribution and threats. Information

from botanical collections of these

plants that, in some cases, dates from

the 1880’s, was utilized in the

preparation of the proposed rule. The

Service received information from

Federal, State, and local agencies, and

consulted professional botanists during

the preparation of the proposed rule.

Destruction and loss of habitat and

extirpation of populations of these two

plants from a variety of causes have

been documented. The Service sought

comments on the proposed rule from

Federal, State, and county entities,

species experts, and other individuals.

All substantive new data received

during the public comment period have

been incorporated into the final rule.

Specific justification for listing the two

plant species is summarized in Factors

‘‘A’’ through ‘‘E.’’

Issue 6: One commenter stated that

we do not know that full tidal action is

needed for Cordylanthus mollis ssp.

mollis.

Service Response: All known

populations of Cordylanthus mollis ssp.

mollis occur in higher elevational zones

within larger tidal marshes that have

fully developed tidal channel networks.

In sites where this taxa has been

extirpated, full tidal action has often

been lost. Extensive surveys for

Cordylanthus mollis ssp. mollis have

been conducted in tidal and diked

marsh lands, and it has not been located

in any diked marshes.

Issue 7: One commenter stated that

the plants occur in tidal marshes and

not in diked areas and, therefore, their

lands do not constitute critical habitat

for the species.

Service Response: The designation of

critical habitat for Cirsium hydrophilum

var. hydrophilum and Cordylanthus
61920 Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Rules and Regulations

mollis ssp. mollis is not prudent. Refer

to the Critical Habitat section of this

final rule for a detailed discussion of the

Service’s decision.

Peer Review

In accordance with Service peer

review policy (July 1, 1994; 59 FR

34270), the Service sent copies of the

proposed rule to three independent

botanists and tidal marsh specialists

who are professors. The Service

solicited their review of the proposed

rule and pertinent scientific and

commercial information substantive to

the listing determination. The reviewers

did not respond to the Service.

Summary of Factors Affecting the

Species

Section 4 of the Act and regulations

(50 CFR part 424) promulgated to

implement the listing provisions of the

Act set forth the procedures for adding

species to the Federal lists of

endangered and threatened species. A

species may be determined to be

endangered or threatened due to one or

more of the five factors described in

section 4(a)(1). These factors and their

application to Cirsium hydrophilum

(Greene) Jepson var. hydrophilum

(Suisun thistle) and Cordylanthus mollis

Gray ssp. mollis (soft bird’s-beak) are as

follows:

A. The Present or Threatened

Destruction, Modification, or

Curtailment of Their Habitat or Range

Habitat for Cirsium hydrophilum var.

hydrophilum and Cordylanthus mollis

ssp. mollis has been severely reduced by

past human activities. Hydraulic

mining, diking and filling involved in

agricultural land conversion and

urbanization, waste disposal, port and

industrial development, railroad

construction, dredging, salt production,

and sedimentation have drastically

reduced the amount of tidal marsh in

California (Atwater 1979, MacDonald

1990, Association of Bay Area

Governments (ABAG) 1991). Changes in

freshwater inflow, pollution, habitat

conversion, habitat fragmentation, and

alteration of the natural tidal regime

continue to threaten the habitat of both

species.

In San Pablo Bay, historical tidal

wetlands have been diked and

converted to agricultural lands that were

farmed for oat hay. In addition,

approximately 4,050 ha (10,000 acres)

also were converted to salt ponds. In

Suisun Bay, most of the 28,780 ha

(71,100 acres) of tidal marshes that

existed in 1850 were converted

originally to agricultural land, and then

to diked seasonal wetlands used for

waterfowl management. Only 3,780 ha

(9,340 acres) within Suisun Marsh

remain as tidal marsh (Dedrick 1989).

Most of the remaining tidal marshes are

backed by steep levees, allowing for

little or no transitional wetland

habitat—the habitat required by Cirsium

hydrophilum var. hydrophilum and

Cordylanthus mollis ssp. mollis.

The change of freshwater inflow to

the marsh has modified the habitat for

these two taxa. Agricultural and

municipal uses have diverted over 50

percent of the historical annual inflow

of freshwater from the Suisun Marsh

and Delta (ABAG 1991). During the past

40 years, significant portions of the

tidally-influenced brackish marsh

within Suisun Bay have become more

saline due to decreased freshwater flows

(Pavlik 1992). Increased salt levels

within the Suisun Marsh may threaten

Cordylanthus mollis ssp. mollis and

Cirsium hydrophilum var. hydrophilum.

Salt stress causes decreased plant

growth and lower reproduction. When

salinity levels remain high during

extended drought conditions,

population viability of these species

may be greatly impaired to the extent

they lose their ability to maintain

themselves as components of a healthy

wetlands ecosystem (Pavlik 1992).

When salinity increases in the root

zone, salt stress reduces plant

abundance and causes shifts in plant

distribution. This has occurred even in

common salt-tolerant plants (Pavlik

1992). Cordylanthus mollis ssp. mollis

and Cirsium hydrophilum var.

hydrophilum may be especially

vulnerable to increased salt levels due

to the limited number of individuals

and their restricted distribution.

Additionally, decreased levels of salt

within the Suisun Marsh may threaten

Cordylanthus mollis ssp. mollis by

affecting its host plants. Cordylanthus

mollis ssp. mollis is a hemi-root parasite

that completes its life cycle by

parasitizing the roots of perennial

halophytes. Salicornia virginica and

Distichlis spicata are halophyte plant

associates and likely hosts of

Cordylanthus mollis ssp. mollis,

although specifics of the host

relationship have yet to be determined.

During the wet and above normal water

years of 1995 and 1996, these two plant

associates have decreased in abundance

in the areas where the Cordylanthus

mollis ssp. mollis is found. Therefore, it

is important to maintain the long term

natural variability of hydrologic

conditions in order to ensure the

survival of Cordylanthus mollis ssp.

mollis and the species upon which it

may depend (R. Brown, in. litt. 1996).

The two plant species also face threats

from habitat fragmentation associated

with commercial and residential

development, road construction, and

ongoing effects of historical

fragmentation by activities associated

with clearing for agriculture, railroad

construction, dredging, and conversion

to salt ponds. These activities have split

habitat into smaller, more isolated units.

Habitat fragmentation may alter the

physical environment, changing the

microclimate, quantity of water, and

nutrients required by remnant

vegetation (Saunders et al. 1991). In

addition, a higher proportion of the area

of these fragmented natural areas is

subject to the influences from external

factors (e.g., additional development,

off-road vehicular use, numerous other

human influences, and competition

with non-native vegetation) that disrupt

natural ecosystem processes. Further

effects of habitat fragmentation on the

two plant species are discussed in

Factor ‘‘E.’’

Projects that convert habitat from tidal

marsh to diked seasonal wetlands

potentially threaten both Cirsium

hydrophilum var. hydrophilum and

Cordylanthus mollis ssp. mollis. Within

Suisun Marsh, the conversion of tidal

marsh to diked seasonal wetlands, a

practice common in the development of

waterfowl managements areas, is a

potential threat for both species

(Randall Brown, in litt. 1993). The

CDFG’s planned conversion of 40 ha

(100 acres) of Distichlis spicata (an

associated species for both Cirsium

hydrophilum var. hydrophilum and

Cordylanthus mollis ssp. mollis) in Hill

Slough as enhancement of habitat for

wildlife (CDWR, in litt. 1996), will

further diminish the amount of suitable

habitat for Cirsium hydrophilum var.

hydrophilum and Cordylanthus mollis

ssp. mollis.

Habitat conversion for planned future

urbanization threatens both species. In

the Association of Bay Area

Governments’ analysis of the San

Francisco Bay Estuary, over 4,856 ha

(12,000 acres) of wetlands in the Bay

will be subject to moderate to high

development uses over the next 12 years

(ABAG 1991). Highway projects within

the San Francisco Bay Estuary during

the next 20 years alone are expected to

fill 146 ha (362 acres) of wetlands

(ABAG 1991). Some of the highway

projects will threaten Cordylanthus

mollis ssp. mollis by eliminating habitat

into which existing populations of this

plant could expand. Widening of

California Highway 37 will impact

wetlands that occur along the Napa

River (ABAG 1991) and may adversely

affect habitat for Cordylanthus mollis
Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Rules and Regulations 61921

ssp. mollis. Proposed widening of

Highway 12 near the Suisun Marsh

would threaten the habitats of

Cordylanthus mollis ssp. mollis and

Cirsium hydrophilum var. hydrophilum

(Brenda Grewell, pers. comm. 1993),

either due to habitat fragmentation as

discussed above or by runoff.

Projects that alter the natural tidal

regime may also threaten both taxa.

Although the California Department of

Water Resources is no longer pursuing

the Western Suisun Marsh Salinity

Control Project, projects that may alter

the salinity regime and flows, are being

evaluated under the CalFed Bay-Delta

Program. The goals of the program will

be to contribute toward recovery of

sensitive species rather than to recover

the species. The alternatives of the

CalFed program have not been

identified yet, but could involve habitat

modification associated with restoration

activities and the construction of

various storage and conveyance

structures. These actions could subject

tidal marsh to altered flows and changes

in salinity that could be detrimental to

Cirsium hydrophilum var. hydrophilum

and Cordylanthus mollis ssp. mollis.

The restoration plans have not

specifically addressed Cirsium

hydrophilum var. hydrophilum and

Cordylanthus mollis ssp. mollis.

B. Overutilization for Commercial,

Recreational, Scientific, or Educational

Purposes

Overutilization currently is not

known to be a factor for these two

plants. Increased collecting for scientific

or horticultural purposes or excessive

visits by individuals interested in seeing

rare plants could result, however, from

increased publicity resulting from

publication of this proposal.

C. Disease or Predation

The health of one of the largest

occurrences of Cordylanthus mollis ssp.

mollis is declining due to insect

predation (Brenda Grewell, pers. comm.

1993). Intense insect seed predation has

been observed in the population at Joice

Island and Hill Slough within Suisun

Marsh in Solano County (Randall

Brown, in litt. 1993). The presence of a

thistle weevil (Rhinocyllus conicus) in a

portion of the Cirsium hydrophilum var.

hydrophilum population was

documented in June 1996 by CDWR.

The CDWR has collected thistle weevil

in Cirsium hydrophilum var.

hydrophilum flower heads, and

observed many flower heads with no

seeds. The larval stage of this weevil

feeds on the seed. Phyciods mylitta

caterpillars were collected on a

population of Cirsium hydrophilum var.

hydrophilum in September 1996. These

caterpillars have caused significant

damage to the rosettes of plants that will

flower next year (R. Brown, in. litt.

1996).

Disease is not known to be a factor for

either Cirsium hydrophilum var.

hydrophilum or Cordylanthus mollis

ssp. mollis.

D. The Inadequacy of Existing

Regulatory Mechanisms

Section 404 of the Clean Water Act

represents the primary Federal law that

affords some protection for these two

plants since they occur in wetlands.

However, the Clean Water Act, by itself

does not provide adequate protection for

either Cirsium hydrophilum var.

hydrophilum or Cordylanthus mollis

ssp. mollis. The Army Corps of

Engineers (Corps) is the Federal agency

responsible for administering the

section 404 program. Under section 404,

nationwide permits may be issued for

certain activities that are considered to

have minimal impacts, including oil

spill cleanup, minor dredging,

maintenance dredging of existing

basins, some road crossings, and minor

bank stabilization (December 13, 1996;

61 FR 65874–65922). However, the

Corps seldom withholds authorization

of an activity under nationwide permits

unless the existence of a listed

threatened or endangered species would

be jeopardized, regardless of the

significance of the affected wetland

resources. Activities that do not qualify

for authorization under a nationwide

permit, including projects that would

result in more than minimal adverse

environmental effects, either

individually or cumulatively, may be

authorized by an individual or regional

general permit, which are typically

subject to more extensive review.

Regardless of the type of permit deemed

necessary under section 404, rare

species such as Cirsium hydrophilum

var. hydrophilum and Cordylanthus

mollis ssp. mollis may receive no

special consideration with regard to

conservation or protection unless they

are listed under the Act.

The Service, as part of the section 404

review process, provides comments to

the Corps on nationwide permits and

individual permits. The Service’s

comments are only advisory, although

procedures exist for elevating permit

review within the agencies when

disagreements between the Service and

Corps arise concerning the issuance of

a permit. In practice, the permitting

process for wetland fills and other

activity under section 404 are

insufficient to protect rare species such

as Cirsium hydrophilum var.

hydrophilum and Cordylanthus mollis

ssp. mollis.

CDFG has formally designated

Cordylanthus mollis ssp. mollis as rare

under the California Endangered

Species Act (chapter 1.5 sec. 2050 et

seq. of the California Fish and Game

Code and Title 14, California Code of

Regulations 670.2). This designation by

the State of California requires

individuals to obtain a permit or an

agreement with the CDFG to possess or

‘‘take’’ a listed species. Although the

‘‘take’’ of State-listed plants is

prohibited (California Native Plant

Protection Act, chapter 10 sec. 1908 and

California Endangered Species Act,

chapter 1.5 sec. 2080), State law

exempts the taking of such plants via

habitat modification or land use changes

by the landowner. After CDFG notifies

a landowner that a State-listed plant

grows on his or her property, the

California Native Plant Protection Act

requires only that the landowner notify

the agency ‘‘at least 10 days in advance

of changing the land use to allow

salvage of such a plant’’ (chapter 10 sec.

1913 of the California Fish and Game

Code).

The California Environmental Quality

Act (CEQA) requires a full disclosure of

the potential environmental impacts of

proposed projects. CEQA also obligates

disclosure of environmental resources

within proposed project areas and may

enhance opportunities for conservation

efforts. However, CEQA does not

guarantee that such conservation efforts

will be implemented. The public agency

with primary authority or jurisdiction

over the project is designated as the lead

agency, and is responsible for

conducting a review of the project and

consulting with the other agencies

concerned with the resources affected

by the project. Section 15065 of the

CEQA Guidelines requires a finding of

significance if a project has the potential

to ‘‘reduce the number or restrict the

range of a rare or endangered plant or

animal.’’ Once significant effects are

identified, the lead agency has the

option to require mitigation for effects

through changes in the project or to

decide that overriding considerations

make mitigation infeasible. In the latter

case, projects may be approved that

cause significant environmental

damage, such as resulting in the loss of

sites supporting State-listed species.

Mitigation plans usually involve the

transplantation of the plant species to

an existing habitat or an artificially

created habitat. Following the

development of the transplantation

plan, the original site is destroyed.

Therefore, if the mitigation effort fails,

the resource has already been lost.
61922 Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Rules and Regulations

Protection of listed species through

CEQA is, therefore, dependent upon the

discretion of the lead agency involved.

In addition, revisions to the CEQA

guidelines have been proposed that, if

made final, may weaken protections for

threatened, endangered, and other

sensitive species (U.S. Department of

the Interior, in. litt. 1997). Final CEQA

guidelines are forthcoming.

In 1977, the State of California

enacted the Suisun Marsh Preservation

Act (Preservation Act) to protect Suisun

Marsh. This legislation established

primary and secondary management

areas. The secondary management areas

were established to provide a buffer

against development. In 1982, the

Preservation Act was amended to

exclude, in the primary management

area, land proposed for the Lawlor

Ranch development. Exclusion of this

land has reduced the buffer between

urbanization and Suisun Marsh. The

indirect effects of urbanization are

discussed further in Factors ‘‘A’’ and

‘‘E’.

E. Other Natural or Manmade Factors

Affecting Their Continued Existence

Both populations of Cirsium

hydrophilum var. hydrophilum are

adversely affected by non-native plants.

Lepidium latifolium (perennial

peppergrass), a rated noxious weed

(California Department of Food and

Agriculture 1993), has ‘‘moved in

especially in the last 5 years’’ (Brenda

Grewell, pers. comm. 1993). Cirsium

hydrophilum var. hydrophilum is outcompeted by L. latifolium.

Hybridization with Cirsium vulgare

(bull thistle), a non-native, also is a

potential threat. Cirsium vulgare

hybridizes readily with other Cirsium.

Hybridization with Cirsium vulgare was

suggested as a possible explanation for

the previously presumed extinction of

Cirsium hydrophilum var. hydrophilum

(Smith and Berg 1988). Cordylanthus

mollis ssp. hispidus is a species

generally associated with more alkaline

habitats than tidal marshes where

Cordylanthus mollis ssp. mollis is

found. However, hybridization and

mixing of traits may be occurring

between these two taxa or subspecies as

possibly indicated in some voucher

species kept in the University of

California (Berkeley) and Jepson

herbarium reference collections.

Chronic pollution from petroleum

products is an ongoing threat to the

habitat of both plants within San Pablo

Bay and southern Suisun Bay. Oil spills

can result in severe and long lasting

destruction of salt marsh vegetation.

Studies on mangroves, seagrasses, salt

marsh grasses, and algae have shown

that petroleum causes death, reduced

growth, and impaired reproduction in

large plants (Albers 1992). The effects of

a petroleum spill to plants depends on

several factors including the time of

year, the type of petroleum product

(crude or refined), and the degree of

coverage (Hershner and Moore 1977;

Rob Ricker, CDFG, pers. comm. 1993). A

plant entirely covered by oil will die.

Oil that seeps into sediments can affect

the roots or rhizomes of plants as well.

Oil spills may also affect plants by

decreasing the amount of plant biomass

(either above or below ground), or by

decreasing the reproductive capacity of

the plant (Rob Ricker, pers. comm.

1993).

Four hundred to 800 oil spills occur

annually within California (Rob Ricker,

pers. comm. 1993). Within northern

California, 309 reported spills affecting

marine or estuarine habitats within the

jurisdiction of the Service’s Sacramento

Fish and Wildlife Office occurred

between March 1992 and March 1993

(Office of Environmental Services (OES)

1992 and 1993). Most of these spills

occurred in the San Francisco Bay

Estuary.

In 1988, an oil spill in Martinez,

California, flowed as far as Suisun Bay.

Although these plants are found within

the northern part of the Suisun Marsh

and may not be threatened directly by

an oil spill in San Francisco Bay, the

potential for oil spills exists from

vessels operating within the marsh, as

well as from an accidental spill from

railroads that bisect the marsh. Oil spills

also are an ever present threat to

Cordylanthus mollis ssp. mollis

occurring near Point Pinole (Pat

O’Brien, General Manager, East Bay

Regional Parks District, in litt. 1994).

A hazardous waste clean-up effort

resulted in the removal of a portion of

the Middle Point Cordylanthus mollis

ssp. mollis population in 1994. This

population is found on the Concord

Naval Weapons Station Property (Ruygt

1994).

Chronic pollution from point and

non-point sources, including heavy

metals from industrial discharges, also

may threaten the habitat of both plants.

It is unknown, however, what effects

heavy metals in industrial discharges

have on these two taxa. In 1978, 52

municipal treatment facilities and 42

industrial facilities continuously

discharged wastewater into San

Francisco Bay (Western Ecological

Services Company (WESCO) 1986). By

1982, over 200 permits for industrial

discharges had been granted (WESCO

1986).

The amounts of heavy metals in the

San Francisco Bay Estuary are projected

to increase during the next 10 years. The

San Francisco Bay Conservation and

Development Commission, Center for

Environmental Design Research, and the

Greenbelt Alliance (1992) collectively

modeled plausible land use changes and

their impact to the health of the San

Francisco Bay Estuary. Several methods

were used to determine the effects of

land use change including two future

land use models. The model projecting

the highest increase in heavy metal was

based on a composite of the general plan

maps for all of the counties in the

estuary. Amounts of heavy metals

including lead, nickel, and cadmium

were projected to increase under both

future land use models in all the

watersheds that include habitat for these

two plants.

As discussed in Factor ‘‘A’’, habitat

fragmentation may alter the physical

environment. In addition, habitat

fragmentation increases the risks of

extinction due to random events. The

small, isolated nature of the two

populations of Cirsium hydrophilum

var. hydrophilum also makes extinction

from random events more likely.

Random events such as insect or pest

outbreaks, extended drought, oil spills

or a combination of several such events,

could destroy part of a single population

or entire populations. The risk of

extirpation due to genetic and

demographic problems associated with

small populations is a threat to at least

the two occurrences of Cordylanthus

mollis ssp. mollis that have fewer than

25 individuals. Additionally, the

ongoing harvesting, planting of seed,

and attempts at artificially expanding

one of the populations in Contra Costa

County, that is occurring without proper

permits from the State of California,

potentially threatens the genetic

diversity of Cordylanthus mollis ssp.

mollis (Deborah L. Elliot-Fisk,

University of California at Davis, in. litt.

1996; David Tibor, CNPS, in. litt. 1996).

Mosquito abatement will increase as a

result of urbanization (Brenda Grewell,

pers. comm. 1993). Mosquito abatement

activities threaten Cirsium hydrophilum

var. hydrophilum and Cordylanthus

mollis ssp. mollis. Within Suisun

Marsh, both species grow along or near

first order channels and mosquito

abatement drainage ditches. Ditch

cleaning and dredging, and the chemical

spraying of vegetation along these

channels or ditches may adversely

impact individual plants. Plant

populations parallel to these channels

have been subjected to damage by

vehicles used off established roads

during mosquito abatement activities

(Randall Brown, in. litt. 1993).
Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Rules and Regulations 61923

Foot traffic is a threat to Cordylanthus

mollis ssp. mollis. A trail runs through

the occurrence located on East Bay

Regional Park’s Point Pinole Regional

Seashore. Foot traffic also is a potential

threat to the largest occurrence of

Cordylanthus mollis ssp. mollis due to

the increased urbanization occurring

within 0.40 kilometer (0.25 mile). Foot

traffic disturbance through

Cordylanthus mollis ssp. mollis can

easily damage the shallow and very

brittle roots (Stromberg 1986).

Erosion is a threat to Cordylanthus

mollis ssp. mollis located on the Point

Pinole Regional Seashore. The main

population of Cordylanthus mollis ssp.

mollis is immediately adjacent to a

slough that is undergoing bank

slumping (Stromberg 1986). Individual

plants are threatened by undercutting of

the bank and subsequent slumping of

the marsh soil into the slough.

Cattle grazing continues on both

private and state owned tidal marsh

lands adjacent to Hill Slough, and in the

privately owned tidal marsh near

McAvoy Harbor. Extensive areas of bare

ground are now present within the

Cordylanthus mollis ssp. mollis

population, decreasing the size of the

populations (R. Brown, in. litt. 1996).

The Service has carefully assessed the

best scientific and commercial

information available regarding the past,

present, and future threats faced by

these species in determining to finalize

this rule. Cirsium hydrophilum var.

hydrophilum, limited to only two

populations, is threatened across all of

its current range by indirect effects of

urbanization, projects that alter the

natural tidal regime, vulnerability to

extinction due to random events and

environmental factors, and competition

with non-native vegetation.

Urbanization, industrial development,

and agricultural land conversion have

extirpated or potentially extirpated

nearly 45 percent of known occurrences

of Cordylanthus mollis ssp. mollis.

Cordylanthus mollis ssp. mollis is

restricted to about 12 ha (31 acres) of

habitat. Indirect effects of urbanization

including habitat fragmentation and

conversion, projects that alter natural

tidal regimes, alteration of salinity

levels, water pollution, mosquito

abatement activities (including offhighway vehicle use), insect predation,

erosion, foot traffic, and extirpation due

to genetic and demographic problems

continue to threaten most occurrences

of Cordylanthus mollis ssp. mollis

across its remaining range. Because

Cirsium hydrophilum var. hydrophilum

and Cordylanthus mollis ssp. mollis are

in danger of extinction throughout all or

a significant part of their respective

ranges, they meet the definition of

‘‘endangered’’ as it is defined in the Act.

The preferred action, therefore, is to list

Cirsium hydrophilum var. hydrophilum

and Cordylanthus mollis ssp. mollis as

endangered.

Alternatives to this action were

considered but not preferred. Not listing

Cirsium hydrophilum var. hydrophilum

and Cordylanthus mollis ssp. mollis or

listing these taxa as threatened would

not provide adequate protection and

would not be consistent with the Act.

The Service is not proposing to

designate critical habitat for these plants

at this time, as discussed below.

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 section 4 of 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

consideration or protection and; (ii)

specific areas outside the geographical

area occupied by a species at the time

it is listed, upon determination that

such areas are essential for the

conservation of the species.

‘‘Conservation’’ as it is defined in

section 3(3) of the Act means the use of

all methods and procedures needed to

bring the species to the point at which

listing under the Act is no longer

necessary.

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

amended, and implementing regulations

(50 CFR 424.12) require that, to the

maximum extent prudent and

determinable, the Secretary designate

critical habitat at the time the species is

listed. 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.

The Service finds that designation of

critical habitat is not prudent for

Cirsium hydrophilum var. hydrophilum

and Cordylanthus mollis ssp. mollis at

this time.

Critical habitat designation for

Cirsium hydrophilum var. hydrophilum

is not prudent due to lack of benefit.

Cirsium hydrophilum var. hydrophilum

is a wetland species and alteration of its

tidal marsh habitat may be regulated by

the Corps under the Clean Water Act.

The inadequacies of the permitting

process for wetland fills and other

activities in protecting rare species is

discussed under Factor ‘‘D’’ of the

‘‘Summary of Factors Affecting the

Species’’ section above. Although there

may be a Federal nexus for Cirsium

hydrophilum var. hydrophilum through

the Clean Water Act, the designation of

critical habitat for this species would

provide little or no benefit to the

protection of this species beyond that

provided by listing. Because of the small

size of the total population of this

species (i.e., a few thousand

individuals) and the small area of

occupied habitat (i.e., less than 0.40 ha

(1 ac)), any adverse modification of the

occupied habitat would likely

jeopardize the continued existence of

Cirsium hydrophilum var. hydrophilum.

Critical habitat designation for

Cordylanthus mollis ssp. mollis is not

prudent due to lack of benefit.

Cordylanthus mollis ssp. mollis is a

wetland species and alteration of its

tidal marsh habitat may be regulated by

the Corps under the Clean Water Act.

The inadequacies of the permitting

process for wetland fills and other

activities in protecting rare species is

discussed under Factor ‘‘D’’ of the

‘‘Summary of Factors Affecting the

Species’’ section above. Because of the

small size of the total population of this

species (i.e., several thousand

individuals) and the small area of

occupied habitat (i.e., about 12 ha (31

ac)), any adverse modification of the

occupied habitat would likely

jeopardize the continued existence of

Cordylanthus mollis ssp. mollis.

Moreover, any benefit that may be

gained by designation of critical habitat

is out weighed by the detriment of such

a designation. The publication of maps

depicting precise locations of critical

habitat that is required for designation

would contribute to the further decline

of this species by facilitating

trespassing, uncontrolled collecting, and

hindering recovery efforts. Urban

encroachment in the Suisun Marsh

Protection Zone increases the threat of

foot traffic in sensitive tidal marsh areas

where these plants occur (R. L. Brown,

California Department of Water

Resources, in. litt. 1993), and these areas

are easily accessed by foot from the

public roads near the marsh. As

discussed in Factor ‘‘E’’ above, the

ongoing harvesting of seeds and

attempts at artificially expanding one of

the populations in Contra Costa County

by seeding, that is occurring without

proper permits from the State of

California, potentially threatens the

genetic diversity of Cordylanthus mollis

ssp. mollis (Deborah L. Elliot-Fisk,
61924 Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Rules and Regulations

University of California at Davis, in. litt.

1996; David Tibor, CNPS, in. litt. 1996).

Critical habitat receives consideration

under section 7 of the Act with regard

to actions carried out, authorized, or

funded by a Federal agency. As such,

designation of critical habitat may affect

non-Federal lands only where such a

Federal nexus exists. Critical habitat

designation requires Federal agencies to

ensure that their actions do not result in

destruction or adverse modification of

critical habitat. However, both

jeopardizing the continued existence of

a species and adverse modification of

critical habitat have similar standards

and thus similar thresholds for violation

of section 7 of the Act. In fact, biological

opinions that conclude that a Federal

agency action is likely to adversely

modify critical habitat but not

jeopardize the species for which it is

designated are extremely rare.

Most populations of the two taxa

occur on private or State lands. The

designation of critical habitat on private

or State lands will afford no additional

benefit for these species over that

provided as a result of listing provided

there is no Federal nexus. Designating

critical habitat does not create a

management plan for the areas where

the listed species occurs; does not

establish numerical population goals or

prescribe specific management actions

(inside or outside of critical habitat);

and does not have a direct effect on

areas not designated as critical habitat.

Protection of the habitat of these

species will be addressed through the

section 4 recovery process and the

section 7 consultation process. The

Service believes that Federal

involvement in the areas where these

plants occur can be identified without

the designation of critical habitat. For

the reasons discussed above, the Service

finds that the designation of critical

habitat for these plants is not prudent.

Available Conservation Measures

Conservation measures provided to

species listed as endangered or

threatened under the Act include

recognition, recovery actions,

requirements for Federal protection, and

prohibitions against certain activities.

Recognition through listing encourages

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 State and

requires that recovery plans be

developed 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)(1) requires Federal

agencies to use their authorities to

further the purposes of the Act by

carrying out programs for listed species.

If a species is listed, section 7(a)(2) of

the Act requires Federal agencies to

ensure that activities they authorize,

fund, or carry out are not likely to

jeopardize the continued existence of

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 consultation

with the Service.

One occurrence of Cordylanthus

mollis ssp. mollis is on land that is

managed by the U.S. Navy. Activities

conducted by the U.S. Navy that may

affect this species would be subject to

review under section 7 of the Act. The

U.S. Bureau of Reclamation and the

Corps would become involved with

these plants through their funding of

projects that may directly impact the

plants or support development of areas

that contain suitable salt or brackish

marsh habitat for these plants. The

Corps also would be involved as an

authorizing agency for permits to dredge

or fill wetlands and navigable waters of

the United States. The Corps regulates

dredging and filling of jurisdictional

wetlands and navigable waters,

including salt marshes, under section

404 of the Clean Water Act. By

regulation, nationwide 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. The

presence of a listed species would

highlight the national importance of

these resources. Highway construction

and maintenance projects that receive

funding from the Department of

Transportation (Federal Highway

Administration) also would be subject

to review under section 7 of the Act.

Listing Cirsium hydrophilum var.

hydrophilum and Cordylanthus mollis

ssp. mollis as endangered provides for

development of a recovery plan (or

plans) for them. Such plan(s) would

bring together both State and Federal

efforts for conservation of the plants.

The recovery plan(s) would establish a

framework for agencies to coordinate

activities and cooperate with each other

in conservation efforts. The plan(s)

would set recovery priorities and

estimate costs of various tasks necessary

to accomplish them. It also would

describe site-specific management

actions necessary to achieve

conservation and survival of the two

species. Additionally, pursuant to

section 6 of the Act, the Service would

be able to grant funds to affected states

for management actions aiding 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, 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. Certain exceptions apply

to agents of the Service and State

conservation agencies.

The Act and 50 CFR parts 17.62,

17.63, and 17.72 also provide for the

issuance of permits to carry out

otherwise prohibited activities

involving endangered or threatened

plant species under certain

circumstances. The Service anticipates

few permits would ever be sought or

issued for the two species because the

plants are not common in cultivation or

in the wild. Requests for copies of the

regulations on listed plants and

inquiries regarding them may be

addressed to U.S. Fish and Wildlife

Service, Ecological Services,

Endangered Species Permits, 911 NE

11th Avenue, Portland, Oregon 97232–

4181; telephone 503/231–2063 or FAX

503/231–6243).

The Act directs Federal agencies to

protect and promote the recovery of

listed species. Collection of listed plants

on Federal lands is prohibited. Proposed

Federal projects and actions including

activities on private or non-Federal

lands that involve Federal funding or

permitting require review to ensure they

will not jeopardize the survival of any

listed species, including plants. The Act

does not prohibit ‘‘take’’ of listed plants

on private lands, but private landowners
Federal Register / Vol. 62, No. 224 / Thursday, November 20, 1997 / Rules and Regulations 61925

should be aware of State laws protecting

imperiled plants.

It is the policy of the Service,

published in the Federal Register on

July 1, 1994 (59 FR 34272), to identify

to the maximum extent practicable at

the time a species is listed those

activities that would or would not

constitute a violation of section 9 of the

Act. The intent of this policy is to

increase public awareness of the effect

of the listing on proposed and ongoing

activities within a species’ range. Most

occurrences of both plants are either on

private or non-Federal lands. One

population of Cordylanthus mollis ssp.

mollis occurs on land managed by the

Department of Defense (U.S. Navy). The

Service believes that the following

actions would result in a violation of

section 9, although possible violations

are not limited to these actions alone—

collection, damage, or destruction of

these species on Federal lands, except

in certain cases described below; and

activities on non-Federal lands

conducted in knowing violation of

California State law, which requires a

ten day notice be given before taking of

plants on private land. The Service

believes that, based on the best available

information at this time, the following

actions will not result in a violation of

section 9 on private land provided that

they do not violate State trespass or

other laws—waterfowl hunting, bird

watching, and fishing. Activities that

occur on Federal land, or on private

land that receive Federal authorization,

permits, or funding, and for which

either a Federal endangered species

permit is issued to allow collection for

scientific or recovery purposes, or a

consultation is conducted in accordance

with section 7 of the Act, would also not

result in a violation of section 9. The

Service is not aware of any otherwise

lawful activities being conducted or

proposed by the public that will be

affected by this listing and result in a

violation of section 9. General

prohibitions and exceptions that apply

to all endangered plants in section

9(a)(2) of the Act, implemented by 50

CFR 17.61, apply as discussed earlier in

this section. Questions regarding

whether specific activities will

constitute a violation of section 9

should be directed to the Field

Supervisor of the Service’s Sacramento

Fish and Wildlife Office (see ADDRESSES

section).

National Environmental Policy Act

The Fish and Wildlife Service has

determined that an Environmental

Assessment or Environmental Impact

Statement, as defined under the

authority of the National Environmental

Policy Act of 1969, need not be

prepared in connection with regulations

adopted pursuant to section 4(a) of the

Act. 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.

References Cited

A complete list of all references cited

herein is available, upon request, from

the Field Supervisor, Sacramento Fish

and Wildlife Office (see ADDRESSES

section).

Author: The primary authors of this

final rule are Kirsten Tarp and Matthew

D. Vandenberg, U.S. Fish and Wildlife

Service, Sacramento Fish and Wildlife

Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Regulations 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 name Status When listed Critical

habitat

Special

rules Scientific name Common name

FLOWERING PLANTS

* * * * * * *

Cirsium hydrophilum

var. hydrophilum.

Suisun thistle .......... U.S.A. (CA) ............. Asteraceae .............. E .................... NA NA

* * * * * * *

Cordylanthus mollis

ssp. mollis.

Soft bird’s-beak ....... U.S.A. (CA) ............. Scrophulariaceae .... E .................... NA NA

* * * * * * *

Dated: November 12, 1997.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 97–30552 Filed 11–19–97; 8:45 am]

BILLING CODE 4310–55–P