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[Federal Register Volume 63, Number 17 (Tuesday, January 27, 1998)]
[Proposed Rules]
[Pages 3863-3877]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-1851]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE53

Endangered and Threatened Wildlife and Plants; Proposed 
Endangered Status for Erigeron decumbens var. decumbens (Willamette 
Daisy) and Fender's Blue Butterfly (Icaricia icarioides fenderi) and 
Proposed Threatened Status for Lupinus sulphureus ssp. kincaidii 
(Kincaid's lupine)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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[[Page 3864]]

SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes 
endangered status pursuant to the Endangered Species Act (Act) of 1973, 
as amended, for a plant and a butterfly, Erigeron decumbens var. 
decumbens (Willamette daisy) and Fender's blue butterfly (Icaricia 
icarioides fenderi), and proposes threatened status for a plant, 
Lupinus sulphureus ssp. kincaidii (Kincaid's lupine). These species are 
restricted to native prairie in the Willamette Valley of Oregon and are 
currently known from a few small remnants of a formerly widespread 
distribution. In addition to its Oregon occurrences, L. sulphureus ssp. 
kincaidii is also known from one small site in southern Washington. The 
three taxa are threatened by one or more of the following--commercial 
and/or residential development, agriculture, silviculture, road 
improvement, over-collection, herbicide use, and naturally occurring 
demographic and random environmental events. This proposal, if made 
final, would invoke the Federal protection and recovery provisions of 
the Act for these plant and butterfly species.

DATES: Comments from all interested parties must be received by March 
30, 1998. Public hearing requests must be received by March 13, 1998.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to the State Supervisor, U.S. Fish and Wildlife Service, Oregon 
State Office, 2600 SE 98th Ave., Suite 100, Portland, Oregon 97266. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

FOR FURTHER INFORMATION CONTACT: Dr. Andrew F. Robinson, Jr., Botanist; 
or Diana Hwang, Fish and Wildlife Biologist, U.S. Fish and Wildlife 
Service (see ADDRESSES section above or telephone 503-231-6179, FAX 
503-231-6195).

SUPPLEMENTARY INFORMATION:

Background

    Fender's blue butterfly (Icaricia icarioides fenderi), Lupinus 
sulphureus ssp. kincaidii (Kincaid's lupine), and Erigeron decumbens 
var. decumbens (Willamette daisy) are restricted to the Willamette 
Valley of Oregon. The valley is a 209 kilometer (km) long (130 miles 
(mi)) and 32-64 km (20-40 mi) wide alluvial flood plain with an overall 
northward gradient (Orr et al. 1992). The valley is narrow and flat at 
its southern end, widening and becoming hilly near its northern end at 
the confluence of the Willamette and Columbia Rivers. In addition to 
its Oregon occurrences, L. sulphureus ssp. kincaidii is also known from 
one small site in southern Washington.
    The alluvial soils of the Willamette Valley and southern Washington 
host a mosaic of grassland, woodland, and forest communities. Fender's 
blue butterfly, Lupinus sulphureus ssp. kincaidii, and Erigeron 
decumbens var. decumbens occupy native grassland habitats within the 
Willamette Valley. Based on the limited available evidence, Franklin 
and Dyrness (1973) asserted that most Willamette Valley grasslands are 
seral (one stage in a sequential progression), requiring natural or 
human-induced disturbance for their maintenance. Johannessen et al. 
(1971) indicated that the vast majority of Willamette Valley grasslands 
would be forested if left undisturbed. Important exceptions to this 
successional pattern are grass balds on valley hillsides, which may be 
climax grasslands due to the presence of deep, fine-textured, self-
mulching soils or xeric (very dry) lithosoils (Franklin and Dyrness 
1973).
    Two native prairie types occur in the Willamette Valley, wet 
prairie and upland prairie. Fender's blue butterfly and Lupinus 
sulphureus ssp. kincaidii are typically found in native upland prairie 
with the dominant species being Festuca rubra (red fescue) and/or 
Festuca idahoensis (Idaho fescue) and Calochortus tolmiei (Tolmie's 
mariposa), Silene hookeri (Hooker's catchfly), Fragaria virginiana 
(broadpetal strawberry), Sidalcea virgata (rose checker-mallow), and 
Lomatium spp. (common lomatium) serving as herbaceous indicator species 
(Hammond and Wilson 1993). These dry, fescue prairies make up the 
majority of habitat for Fender's blue butterfly and L. sulphureus ssp. 
kincaidii. Although Fender's blue butterfly and L. sulphureus ssp. 
kincaidii are occasionally found on steep, south-facing slopes and 
barren rocky cliffs, neither of these species appear capable of 
occupying the most xeric oatgrass communities on these south facing 
slopes.
    The primary habitat for Erigeron decumbens var. decumbens is native 
wetland prairie. This habitat is characterized by the seasonally-wet 
Deschampsia caespitosa (tufted hairgrass) community that occurs in low, 
flat regions of the Willamette Valley where flooding creates anaerobic 
and strongly reducing soil conditions. This wet prairie community 
includes Juncus spp. (rush) and Danthonia californica (California 
oatgrass) as co-dominant native species, as well as the introduced 
species Festuca arundinaceae (tall fescue), Bromus japonicus (Japanese 
brome) and Anthoxanthum odoratum (sweet vernal grass) (USFWS 1993). 
Another endangered species, Lomatium bradshawii (Bradshaw's lomatium) 
also grows in wet prairie habitat. Atypically, one population of E. 
decumbens var. decumbens occurs on top of a dry, stony butte in an 
upland prairie.
    The impact of humans on the botanical communities of the Willamette 
Valley date back several centuries to the Kalapooya Indians, who 
cleared and burned lands used for hunting and food gathering. Early 
accounts by David Douglas in 1826 indicate extensive burning of the 
valley floor, from its northern end at the falls of the Willamette 
River to its southern extremities near Eugene. Burned areas were 
documented by Douglas as being so complete as to limit the forage 
available for his horse and to reduce game availability (Douglas 1972). 
Accounts by other early explorers support Douglas' observations and 
suggest a pattern of annual burning by the Kalapooya (Johannessen et 
al. 1971). The Kalapooya land practices resulted in the maintenance of 
extensive wet and dry prairie grasslands, which may have facilitated 
their hunting efforts and limited the potential for sneak attacks by 
enemies (Clarke 1905, Douglas 1972, Minto 1900, Smith 1949). Although 
much of the woody vegetation was prevented from becoming established on 
the grasslands by this treatment, the random survival of young fire-
resistant species such as Quercus garryana (Oregon white oak) accounted 
for the widely spaced trees on the margins of the valley (Habeck 1961). 
After 1848, burning decreased sharply through the efforts of settlers 
to suppress large-scale fires. Consequently, the open, park-like nature 
of the valley floor was lost, replaced by agricultural fields, dense 
oak and fir forests, and scrub lands following logging.
    The Willamette basin covers approximately 2,600,000 hectares (ha) 
(6,400,000 acres (ac)), which was estimated in the mid-1880's to 
consist of one-sixth prairie and five-sixths forest (Lang 1885). The 
extent of the prairie component can be analyzed through historical 
information from land survey records. Natural grasslands described by 
Federal land surveyors in the 1850's were broken down into three 
distinct types--oak savannah, upland prairie, and wet prairie (Habeck 
1961). Of the estimated 409,000 ha (1,010,000 ac) of historic native 
grasslands extant prior to 1850, approximately 277,000 ha (685,000 ac) 
appears to have consisted of upland prairie and 132,000 ha

[[Page 3865]]

(325,000 ac) of wet prairie (E. Alverson, The Nature Conservancy, 
Eugene, pers. comm., 1994).
    This extensive resource was rapidly depleted through the conversion 
of native prairie to agricultural use during settlement. Within 30 
years of passage of the Donation Land Act of 1850, most prairie lands 
were occupied by European-American settlers who quickly subdivided 
their original land grants to accommodate the rapid increase in 
population (Lang 1885). The level, open tracts of prairie were the 
first to go under the plow (Lang 1885) and only boggy, flood-prone 
areas prevented complete conversion of the native grassland community 
to cropped monoculture. Limitations on development imposed by seasonal 
flooding and a high water table were, however, overcome after 1936, 
when the U.S. Army Corps of Engineers (Corps) initiated water projects 
to provide flood control and security for expanded agricultural 
activity.
    Fender's blue butterfly, Lupinus sulphureus ssp. kincaidii and 
Erigeron decumbens var. decumbens likely once occurred over a large 
distribution throughout the historic native prairie, and have been 
eliminated from these areas as native prairie habitat has been 
converted to agriculture or otherwise developed. Native prairie 
vegetation in the Willamette Valley was decimated by the rapid 
expansion of agriculture during the 140-year period from the 1850's to 
the present. With extensive changes in the fire regime, disturbance 
forces that maintained native prairies were substantially altered. Fire 
suppression allowed shrub and tree species to overtake grasslands, 
while agricultural practices hastened the decline of native prairie 
species through habitat loss and increased grazing (Johannessen, et al. 
1971; Franklin and Dyrness 1973). Refugia from these forces of change 
were limited to fence rows and intervening strips of land along 
agricultural fields and roadsides.
    Although large prairie expanses dominated by native species had 
been lost by the early 1900's, many remnant grasslands with a large 
native species component have been recently identified. These remnants, 
even though dominated by exotic species, support the only remaining 
occurrences of native prairie species in the Willamette Valley. Current 
estimates of the remaining native upland prairie in the Willamette 
Valley total less than 400 ha (1,000 ac) (Alverson, pers. comm. 1994). 
This estimate represents only one-tenth of one percent of the original 
upland prairie once available to Fender's blue butterfly, Lupinus 
sulphureus ssp. kincaidii, and less than one half of this habitat (84 
sites) is currently occupied by Fender's blue butterfly and/or L. 
sulphureus ssp. kincaidii and/or Erigeron decumbens var. decumbens. 
Within this available habitat, E. decumbens var. decumbens occupies 28 
sites across 116 ha (286 ac), L. sulphureus ssp. kincaidii occupies 51 
sites across 145 ha (357 ac), while Fender's blue butterfly occupies 31 
sites across 165 ha (408 ac). Similar losses have occurred for wet 
prairie habitats, but estimates of current acreage are not available.

Fender's Blue Butterfly

    Fender's blue butterfly is one of about a dozen subspecies of 
Boisduval's blue butterfly (Icaricia icarioides). Icaricia icarioides 
is found in western North America; subspecies fenderi is restricted to 
the Willamette Valley (Dornfeld 1980; R. H. T. Mattoni, University of 
California, pers. comm. to C. Nagano 1997; J. Emmel, Hemet, California, 
pers. comm. to C. Nagano 1997). Fender's blue butterfly was described 
by Ralph W. Macey (1931) as Plebejus maricopa fenderi based on 
specimens he had collected in Yamhill County, Oregon. The species 
maricopa is currently considered to be a synonym of the species 
icarioides (Miller and Brown 1981). The species icaricia has been 
determined to be a member of the genus Icaricia, rather than the genus 
Plebejus (Miller and Brown 1981; R. H. T. Mattoni, pers. comm. to C. D. 
Nagano 1997). Subspecies fenderi was considered to be a synonym of the 
pardalis blue butterfly (Icaricia icarioides pardalis), an inhabitant 
of the central California Coast Range near San Francisco (Downey 1975; 
Miller and Brown 1981); however Fender's blue butterfly is a distinct 
taxon based on adult characters and geographic distribution (Dornfeld 
1980; Hammond and Wilson 1993; R. H. T. Mattoni and J. Emmel, pers. 
comm. to C. D. Nagano 1997).
    Fender's blue butterfly is a small sized butterfly with a wingspan 
of approximately 2.5 centimeter (cm) (1 inch (in)). The upper wings of 
the males are brilliant blue in color and the borders and basal areas 
are black. The upper wings of the females are completely brown colored. 
The undersides of the wings of both sexes are creamish tan with black 
spots surrounded with a fine white border or halo. The dark spots on 
the underwings of the males are small on Fender's blue butterfly; 
surrounded with wide white haloes on the pembina blue butterfly 
(Icaricia icarioides pembina); the underside is very pale whitish gray 
with broad haloes around the black spots on the hindwings of 
Boisduval's blue butterfly.
    The historic distribution of Fender's blue butterfly is not 
precisely known due to the limited information collected on this 
species prior to its description in 1931. Although the type specimens 
for this butterfly were collected in 1929 by Ralph W. Macy, only a 
limited number of collections were made between the time of the 
subspecies' discovery and Macy's last observation on May 23, 1937, in 
Benton County, Oregon (Hammond and Wilson 1992a). A lack of information 
on the identity of the butterfly's host plant caused researchers to 
focus their survey efforts on common lupine species known to occur in 
the vicinity of Macy's collections. As a result, no Fender's blue 
butterflies were observed during 20 years of widespread investigation. 
Finally, Fender's blue butterfly was rediscovered in 1989 by Dr. Paul 
Hammond at McDonald Forest, Benton County, Oregon on an uncommon 
species of lupine, Lupinus sulphureus ssp. kincaidii. Based on this 
additional information, recent surveys have determined that the animal 
is confined to the Willamette Valley and currently occupies 31 sites in 
Yamhill, Polk, Benton, and Lane Counties (Hammond and Wilson 1993; 
Schultz 1996). One population at Willow Creek is found in wet, 
Deschampsia-type prairie, while the remaining sites are found on drier 
upland prairies characterized by Festuca spp. Sites occupied by 
Fender's blue butterfly are located almost exclusively on the western 
side of the valley, within 33 km (21 mi) of the Willamette River.
    Although only limited observations have been made of the early life 
stages of Fender's blue butterfly, the life cycle of the species likely 
is similar to other subspecies of Icaricia icarioides (R. H. T. 
Mattoni, pers. comm. to C. Nagano 1997; G. Pratt, Riverside, 
California, pers. comm. to C. Nagano 1997; Hammond and Wilson 1993). 
Adult butterflies lay their eggs on perennial Lupinus sp. (Ballmer and 
Pratt 1988), the foodplant of the caterpillar during May and June. 
Newly hatched larvae feed for a short time, reaching their second 
instar in the early summer, at which point they enter an extended 
diapause (maintaining a state of suspended activity). Diapausing larvae 
remain in the leaf litter at or near the base of the host plant through 
the fall and winter and some individuals likely become active again in 
March or April of the following year. Some larvae may be able to extend 
diapause for more than one season depending upon the

[[Page 3866]]

individual and environmental conditions (R. H. T. Mattoni pers. comm. 
to C. Nagano 1997). Once diapause is broken, the larvae feed and grow 
through three to four additional instars, enter their pupal stage, and 
then emerge as adult butterflies in April and May. Behavioral 
observations of Fender's blue butterfly indicate the larvae are alert 
to potential predators, with individuals dropping from their feeding 
position on lupine leaves to the base of the plant at the slightest 
sign of disturbance (C. Schultz, University of Washington, pers. comm. 
1994). The life cycle of Fender's blue butterfly may be completed in 
one year.
    The larvae of many species of lycaenid butterflies, including 
Icaricia icarioides, possess specialized glands that secrete a sweet 
solution sought by some ant species who may actively ``tend'' and 
protect them from predators and parasites (Ballmer and Pratt 1988; G. 
Pratt pers. comm. to C. Nagano 1997). Although other subspecies of 
Boisduval's blue butterfly are tended by ants during their larval stage 
(Downey 1962, 1975; Thomas Reid Associates 1982; R. H. T. Mattoni and 
G. Pratt, pers. comm. to C. Nagano 1997), limited observations of 
Fender's blue butterfly larvae in the field have failed to document 
such a mutualistic association (Hammond 1994). However, this may be due 
to the nocturnal activity patterns of the larvae of Icaricia icarioides 
as it appears that this species has an obligate relationship with ants 
(G. Pratt pers. comm. to C. Nagano 1997). Non-native Argentine ants 
(Iridomyrmex humilis) have been observed tending Fender's blue 
butterfly larvae during indoor rearing trials (Schultz, pers. comm. 
1994).
    The near absence of Fender's blue butterfly at sites without 
Lupinus sulphureus ssp. kincaidii suggest that L. laxiflorus (spurred 
lupine) and L. albicaulis (sickle keeled lupine) are secondary 
foodplants used by the animal (Hammond and Wilson 1993k). Fender's blue 
butterfly inhabits two sites that contain only L. laxiflorus, where it 
is the primary foodplant (Schultz 1996) and L. laxiflorus co-occurs 
with L. sulphureus ssp. kincaidii at two additional sites (Hammond and 
Wilson 1993). Fender's blue butterfly occupies six sites containing 
only L. albicaulis, where it is the primary foodplant. However, the 
butterfly is declining at two of these sites. Lupinus albicaulis and L. 
laxiflorus may possess physical or biochemical properties that render 
them less suitable for Fender's blue butterfly than L. sulphureus ssp. 
kincaidii. This phenomenon in foodplants has been documented in other 
species of butterflies and moths (Longcore et al. 1997).

Lupinus Sulphureus ssp. Kincaidii

    Lupinus sulphureus ssp. kincaidii was first described in 1924 by 
C.P. Smith as L. oreganus var. kincaidii from a collection made in 
Corvallis, Oregon (Kuykendall and Kaye 1993a). Phillips (1955) 
transferred the taxon to a subspecies status as L. sulphureus ssp. 
kincaidii. Hitchcock et al. (1961) retained the position noted by 
Phillips (1955), but preferred the combination as a varietal rank, L. 
sulphureus var. kincaidii.
    Lupinus sulphureus ssp. kincaidii occupies 51 sites throughout the 
Willamette Valley and one site in southern Washington. The northern 
limit of L. sulphureus ssp. kincaidii is Lewis County, Washington, 
while it ranges south to Douglas County, Oregon, a latitudinal span of 
over 400 km (250 mi). This distribution implies a close association 
with native upland prairie sites that are characterized by heavier 
soils and mesic to slightly xeric soil moisture levels. At the southern 
limit of its range, the subspecies occurs on well-developed soils 
adjacent to serpentine outcrops where the plant is often found under 
scattered oaks (Kuykendall and Kaye 1993a).
    With its low-growing habit and unbranched inflorescence, Lupinus 
sulphureus ssp. kincaidii is easily distinguished from other sympatric 
members of the genus Lupinus. Its aromatic flowers have a slightly 
reflexed, distinctly ruffled banner and are yellowish-cream colored, 
often showing shades of blue on the keel. The upper calyx lip is short, 
yet unobscured by the reflexed banner when viewed from above. The 
leaflets tend to be a deep green with an upper surface that is often 
glabrous. The plants are 4-8 decimeters (dm) (16-32 in) tall, with 
single to multiple unbranched flowering stems and basal leaves that 
remain after flowering (Kuykendall and Kaye 1993).
    Lupinus sulphureus ssp. kincaidii is a long-lived perennial 
species, with a maximum reported age of 25 years (M. Wilson, Oregon 
State University, in litt., 1993). Individual plants are capable of 
spreading by rhizomes producing clumps of plants exceeding 20 meters 
(m) (65.62 feet (ft)) in diameter (P. Hammond, independent consultant, 
pers. comm. 1994). The long rhizomes do not produce adventitious roots, 
apparently do not separate from the parent clump, and the clumps may be 
short-lived, regularly dying back to the crown (Kuykendall and Kaye 
1993a). Self-incompatible, L. sulphureus ssp. kincaidii is pollinated 
by solitary bees and flies (P. Hammond, pers. comm. 1994). Seed set and 
seed production are low, with few (but variable) numbers of flowers 
producing fruit from year to year and each fruit containing an average 
of 0.3-1.8 seeds (Liston et al. 1994). Seeds are dispersed from fruits 
that open explosively upon drying.

Erigeron Decumbens var. Decumbens

    Thomas Nuttall (1840) based his description of Erigeron decumbens 
on a specimen he collected in the summer of 1835. The autonym E. 
decumbens var. decumbens was automatically established by Cronquist 
(1947) when he described E. decumbens var. robustior. Recent revisions 
of the Erigeron genus (Strother and Ferlatte 1988, Nesom 1989) treat 
the plant as a variety, E. decumbens var. decumbens.
    According to Strother and Ferlatte (1988), Erigeron decumbens var. 
decumbens is geographically limited to the Willamette Valley. They also 
restrict the morphologically similar E. decumbens var. robustior to 
Humboldt and western Trinity Counties, California. Intermediate 
specimens of Erigeron from southern Oregon are considered by Strother 
and Ferlatte (1988) to be robust specimens of E. eatonii var. 
plantagineus.
    A review of herbarium specimens by Clark et al. (1993) shows a 
historical distribution of Erigeron decumbens var. decumbens throughout 
the Willamette Valley. Collections were frequent between 1881 and 1934, 
yet from 1934 to 1980 no collections or observations were made (Clark 
et al. 1993). The species was rediscovered in 1980 in Lane County, 
Oregon, and has since been identified at 28 sites in Polk, Marion, 
Linn, Benton, and Lane counties, Oregon. With 28 occurrences and 115 ha 
(284 ac) of occupied habitat, E. decumbens var. decumbens has the most 
restricted range of the species proposed for listing herein.
    Erigeron decumbens var. decumbens is a perennial herb, 15-60 mm 
(0.6-2.4 in.) tall, with erect to sometimes prostrate stems at the 
base. The basal leaves often wither prior to flowering and are mostly 
linear, 5-12 cm (2-5 in.) long and 3-4 mm (0.1-0.2 in.) wide. Flowering 
stems produce 2-5 heads, each of which is daisy-like, with pinkish to 
pale blue ray flowers and yellow disk flowers. Ray flowers often fade 
to white with age (Siddall and Chambers 1978). The morphologically 
similar E. eatonii occurs east of the Cascade Mountains, while the 
sympatric species Aster hallii flowers later in the summer. Erigeron 
decumbens var. decumbens can be confused with A. hallii in their 
vegetative state, but close

[[Page 3867]]

examination reveals the reddish stems of A. hallii in contrast to the 
green stems of E. decumbens var. decumbens (Clark et al. 1993).
    As with many species in the family Asteraceae, Erigeron decumbens 
var. decumbens produces large quantities of wind-dispersed seed. 
Flowering typically occurs in June and July with pollination carried 
out by syphrid flies and solitary bees. Seeds are released in July and 
August. Although the seeds are wind-dispersed, the short stature of 
this species likely precludes the long-distance travel of many of these 
seeds. Erigeron decumbens var. decumbens is capable of vegetative 
spreading and is commonly found in large clumps scattered throughout a 
site (Clark et al. 1993).

Previous Federal Action

    Erigeron decumbens var. decumbens was initially included as a 
category 2 candidate in a Notice of Review published by the Service on 
December 15, 1980 (45 FR 82506). Category 2 candidates were those 
species for which the Service had information in its possession 
indicating that listing may be appropriate, but for which additional 
information was needed to support the preparation of a proposed rule. 
On November 28, 1983, the Service published a Notice of Review 
upgrading this species to category 1 status (48 FR 53649). Category 1 
taxa were taxa for which the Service had sufficient data in its 
possession to support preparation of listing proposals. Subsequently, 
E. decumbens var. decumbens was reassigned category 2 candidacy by a 
Notice of Review published on September 27, 1985 (50 FR 39527). On 
February 21, 1990 the Service published a Notice of Review (55 FR 6202) 
that reinstated E. decumbens var. decumbens as a category 1 candidate 
and also designated Lupinus sulphureus ssp. kincaidii as a category 2 
candidate (55 FR 6121). The Service published a Notice of Review on 
February 28, 1996 (61 FR 7596), updating the candidate species list and 
changing the policy on candidates to discontinue the use of candidate 
categories. Erigeron decumbens var. decumbens was retained as a 
candidate species; however, Lupinus sulphureus ssp. kincaidii and other 
former category 2 candidates were not. The 1997 Notice of Review 
retained Erigeron decumbens var. decumbens as a candidate species; 
Lupinus sulphureus ssp. kincaidii was not included as a candidate. 
Since this Notice of Review was published, the Service has reevaluated 
the available information and determined that listing is warranted for 
both Erigeron decumbens var. decumbens and Lupinus sulphureus ssp. 
kincaidii.
    Fender's blue butterfly was initially assigned to category 3A taxa 
in the Notice of Review published by the Service on January 6, 1989 (54 
FR 572). The best available information at that time indicated that 
this butterfly was likely extinct because the subspecies was last 
observed in 1937. Category 3A taxa were taxa for which the Service had 
pervasive evidence of extinction, however if rediscovered, such taxa 
might be reconsidered for listing. The rediscovery of this butterfly in 
May 1989 prompted the Service to change the status of the subspecies to 
a category 2 candidate in the Notice of Review published on November 
21, 1991 (56 FR 58830). In the Notice of Review published on February 
28, 1996 (61 FR 7596), the Service retained Fender's blue butterfly as 
a candidate for listing. The 1997 Notice of Review also retained 
Fender's blue butterfly as a candidate for listing.
    The processing of this proposed listing rule conforms with the 
Service's final listing priority guidance for fiscal year (FY) 1997 
that was published in the Federal Register on December 5, 1996 (61 FR 
64475-64481), and the Service's extension of the FY 1997 guidance 
published in the Federal Register on October 23, 1997 (62 FR 55268). 
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. Tier 3 
includes the processing of new proposed listings for species facing 
high magnitude threats. This proposed rule for Fender's blue butterfly 
(Icaricia icarioides fenderi), Lupinus sulphureus ssp. kincaidii 
(Kincaid's lupine), and Erigeron decumbens var. decumbens (Willamette 
daisy) falls under Tier 3. According to the Listing Priority Guidance, 
the Service is operating under a more balanced listing program and may 
process Tier 3 actions. Processing of this proposed rule is in 
accordance with the current Listing Priority Guidance.

Summary of Factors Affecting the Species

    Section 4 of the Endangered Species 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. 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 Fender's blue butterfly (Icaricia 
icarioides fenderi), Lupinus sulphureus Dougl. ssp. kincaidii (Smith) 
Phillips (Kincaid's lupine), and Erigeron decumbens Nutt. var. 
decumbens (Willamette daisy) are as follows.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of its Habitat or Range

    The primary loss of habitat for Fender's blue butterfly, Lupinus 
sulphureus ssp. kincaidii, and Erigeron decumbens var. decumbens has 
resulted from the extensive alteration of native prairie in the 
Willamette Valley that has occurred over the last 140 years, described 
in the ``Background'' section above. As a result, over 99 percent of 
the native prairie in the Willamette Valley, the only known habitat 
area of Fender's blue butterfly, L. sulphureus ssp. kincaidii, and E. 
decumbens var. decumbens, has been lost (E. Alverson, pers. comm. 
1994).
    Within the 84 remnants of native prairie occupied by these species 
in the Willamette Valley, Fender's blue butterfly occurs at 31 sites 
(Hammond and Wilson 1993, Schultz 1996), Lupinus sulphureus ssp. 
kincaidii occurs at 51 sites (Kuykendall and Kaye 1993a), and Erigeron 
decumbens var. decumbens occurs at 28 sites (Clark et al. 1993). In 
this collection of sites, Fender's blue butterfly and L. sulphureus 
ssp. kincaidii are found in close association, occurring together at a 
total of 24 sites. Erigeron decumbens var. decumbens co-occurs with L. 
sulphureus ssp. kincaidii at only one site and with Fender's blue 
butterfly at only this same site, Baskett Butte. Typically these sites 
are small, with extirpation likely in the near future. Activities that 
destroy, modify or curtail the habitat of L. sulphureus ssp. kincaidii, 
E. decumbens var. decumbens, and Fender's blue butterfly are discussed 
below.
    The immediacy of the threat of habitat loss in the last remaining 
84 remnants of native prairie occupied by these species has been well 
documented. Habitat at 80 percent of the sites (e.g., 68 sites) is 
rapidly disappearing due to

[[Page 3868]]

agriculture practices, development activities, forestry practices, 
grazing, roadside maintenance, and commercial Christmas tree farms.
    At least eleven prairie remnants are likely to be impacted by 
agricultural activities. Five of these are wetland prairies occupied by 
Erigeron decumbens var. decumbens and the remaining six are upland 
prairies occupied by Lupinus sulphureus ssp. kincaidii and Fender's 
blue butterfly. The types of impacts include examples such as a wheat 
field boundary adjustment near Buell in Polk County (Mill Creek-Hwy 22 
at Buell) that is likely to lead to loss of a population of Fender's 
blue butterfly and L. sulphureus ssp. kincaidii (Hammond 1994). By 
1996, this boundary adjustment was implemented with a diminished 
population of L. sulphureus ssp. kincaidii and Fender's blue butterfly 
still present; however, no Fender's blue butterflies were observed at 
this site in 1997 (Hammond, pers. comm. 1997). The majority of the 
habitat supporting populations of each of these species are habitat 
remnants, e.g., small habitat patches remaining after other habitat 
loss has occurred. Small habitat patches that occur along State and 
County roadsides face greater threats from agriculture than those 
occurring along non-roadside areas. While in past decades many roadside 
habitats were less disturbed, today roadside stretches of habitats 
adjoining grass seed farms are now being disked and/or sprayed with 
herbicides to kill all roadside vegetation (A. Robinson, U.S. Fish and 
Wildlife Service, pers. comm. 1997). Grass seed farms use herbicide 
spraying to create bare soil as a common practice to prevent the spread 
of weeds from roadsides into the grass seed fields. Many of these areas 
are inhabited by populations of E. decumbens var. decumbens.
    Urban development has caused additional loss of prairie habitat 
(Clark et al. 1993; Hammond 1992, 1994, 1996; Kuykendall and Kaye 1993; 
Liston et al. 1994; Schultz, 1996; Sidall and Chambers 1978). 
Destruction of upland prairie habitat occupied by Fender's blue 
butterfly and Lupinus sulphureus ssp. kincaidii at several sites since 
1992 has caused the butterflies at these sites to either completely die 
out or to be reduced to low, non-viable numbers (Hammond 1994, 1996). 
Future losses for 48 prairie remnants are projected as a result of 
urban development. This is the largest single factor currently 
threatening the survival of these prairie species. Nineteen of these 
remnants are wetland prairies supporting Erigeron decumbens var. 
decumbens and the other 29 are upland prairie remnants supporting 
populations of Fender's blue butterfly and L. sulphureus ssp. 
kincaidii.
    Examples of this type of threat are the Dallas-Oakdale Avenue sites 
1 and 2 covering about 2 ha (5 ac) occupied by Fender's blue butterfly 
and L. sulphureus ssp. kincaidii near the town of Dallas in Polk County 
that is expected to be lost due to housing development planned at that 
site (Hammond 1996). The loss of native prairie habitat is further 
exemplified by the destruction of a site supporting 6,000 plants in 
Lane County, formerly the largest occurrence of E. decumbens var. 
decumbens, plowed under in 1986 prior to the development of an 
industrial and residential site (Kagan and Yamamoto 1987). Construction 
of a single driveway resulted in the loss of one site occupied by 
Fender's blue butterfly and L. sulphureus ssp. kincaidii in Kings 
Valley (Hammond 1994). Future highway construction potentially 
threatens the Nielson Road site of L. sulphureus ssp. kincaidii located 
in a highway expansion corridor in Lane County (Oregon Natural Heritage 
Program 1996). The population of Fender's blue butterfly and L. 
sulphureus ssp. kincaidii at Wren in Benton County occurs at two sites 
and covers about 9 ha (22 ac, however, only a portion of the population 
(7.4 ha) occurs on land owned by The Nature Conservancy (TNC). Heavy 
clearing and mowing activities on private lands adjacent to the TNC 
property has caused the decline of the lupine and is reducing the 
butterfly population at the Wren site to a non-viable state (Hammond 
and Wilson 1993). At the Willow Creek Main site, Fender's blue 
butterfly and L. sulphureus ssp. kincaidii occur together. This site is 
actively managed for the benefit of the species and the lands are 
considered relatively secure from development threats. Although this 
TNC site is considered a secure habitat area, extensive damage to 
habitat occupied by Fender's blue butterfly and L. sulphureus ssp. 
kincaidii occurred in 1996 during pipeline repair work conducted on a 
utility corridor easement. Two other moderately sized habitat patches 
occupied by E. decumbens var. decumbens face habitat loss from trash 
dumping (at the Grande Ronde site) and urbanization (at the west Eugene 
site) (Clark et al. 1993).
    Silvicultural activities for timber production have threatened 6 
percent (5 sites) of the remaining 84 prairie occurrences. The Coburg 
Ridge area-2 site in Lane County is the largest site occupied by 
Fender's blue butterfly and is among the best examples of remnant 
upland native prairie in the Willamette Valley (Hammond 1994). Native 
species were severely damaged, however, by the application of grass-
specific herbicide that eliminated grasses and severely damaged other 
herbaceous species prior to tree planting activities. Approximately 1 
ha (2.5 ac) was sprayed with herbicide. The saddle section of Coburg 
Ridge (area-2) that received aerial application of the herbicide is 
used by Fender's blue butterfly due to the presence of Lupinus 
laxiflorus, an alternate host plant, but this site does not contain L. 
sulphureus ssp. kincaidii (Schultz 1996). Loss of such alternate host 
plant sites further limits the habitat that is available to support 
Fender's blue butterfly. Additional tree-planting efforts by an 
adjacent Coburg Ridge landowner threatens to alter a different portion 
of the grassland in area-2, which has displayed the highest levels of 
butterfly activity in previous years (Schultz 1996). This site received 
spot herbicide application during the planting efforts, rather than the 
aerial broadcast method of the first case; therefore, the immediate 
effects to the habitat were not as severe. However, tree saplings were 
planted and as the trees grow they will eventually shade out the native 
prairie species, resulting in the loss of butterfly habitat. Herbicide 
spraying associated with reforestation after logging has also altered 
habitat and caused a decline of a L. sulphureus ssp. kincaidii 
population on Bureau of Land Management (BLM) properties. The other 
large sized occurrence of the butterfly and L. sulphureus ssp. 
kincaidii is in Benton County on McDonald State Forest and adjacent 
private lands that could be similarly affected by surrounding 
silvicultural operations.
    Grazing is currently impacting 12 of the occupied habitat patches, 
with five of these being wetlands occupied by Erigeron decumbens var. 
decumbens. Most of the habitat occupied by Fender's blue butterfly and 
Lupinus sulphureus ssp. kincaidii at the Oak Ridge south site in 
Yamhill County has been lost due to heavy grazing (Hammond 1996). 
Another site of L. sulphureus ssp. kincaidii, covering about 4.6 ha (11 
ac) at Crabtree Hill in Lane County, is being damaged by extensive 
livestock grazing. The Crabtree Hill population of 6,000 plants is the 
largest known L. sulphureus ssp. kincaidii population.
    The next most common threat to these species is roadside 
maintenance activities. At least 30 sites occur along roadsides and are 
impacted by maintenance activities. Examples

[[Page 3869]]

include the populations of Fender's blue butterfly and Lupinus 
sulpheureus ssp. kincaidii at the Oak Ridge north site that were 
recently lost due to road maintenance activities. When planned 
developments are completed on the Oak Ridge south site, the butterfly 
and lupine will essentially be extirpated from the Oak Ridge area 
(Hammond 1996). Two sites on Oregon Department of Transportation (ODOT) 
property and one site on land owned by the City of Corvallis receive 
only limited protection and could potentially be impacted by future 
development and highway maintenance activities. Publicly-owned roadside 
sites receive varying degrees of protection on a district by district 
basis. Although some roadside sites have been marked as no-spray zones 
by the Native Plant Society of Oregon, this protective measure is not 
always effective. The roadside portion of a L. sulphureus ssp. 
kincaidii population in Kings Valley continues to receive herbicide 
application during roadside weed control activities, despite efforts to 
restrict spraying. Other roadside sites receive only sporadic 
protection during herbicide application. Privately managed roadside 
occurrences do not fare much better; extensive mowing at the Wren sites 
in Benton County and Fir Butte Road roadside sites in Lane County have 
caused declines in Fender's blue butterfly and L. sulphureus ssp. 
kincaidii populations (Hammond 1994). With frequent weed control 
efforts ongoing, as well as highway and driveway construction, small 
roadside occurrences of Fender's blue butterfly, L. sulphureus ssp. 
kincaidii, and Erigeron decumbens var. decumbens are unlikely to 
persist. Between 1994 and 1996, Fender's blue butterfly populations 
disappeared from (or are considered no longer viable) at least seven 
small roadside sites (Liberty Road, Monmouth Falls City Road, Fern 
Corner, Grant Creek, and McTimmonds Valley in Polk County, and two 
sites at Wren) and populations at many of the remaining roadside sites 
continue to decline.
    Between 1990 and 1992, three sites occupied by both Fender's blue 
butterfly and Lupinus sulphureus ssp. kincaidii were lost in the 
McTimmond's Valley to the expansion of Christmas tree farming 
operations (Hammond 1994). Conversion of these three sites destroyed 
approximately 3 ha (7 ac) of habitat along roadside and private land 
that comprised the nucleus of two Fender's blue butterfly populations 
and a substantial number of L. sulphureus ssp. kincaidii plants. The 
two roadside occurrences of the butterfly that remain nearby are no 
longer considered viable due to the loss of the source butterfly 
populations and considerable numbers of L. sulphureus ssp. kincaidii 
plants. Hammond (1994) stated that these two roadside occurrences are 
not expected to persist for more than a few additional years. The 
Service does not know if the two roadside occurrences still exist.
    In summary, habitat loss from a wide variety of causes 
(urbanization, agriculture, silvicultural practices, and roadside 
maintenance) is a severe problem faced by Fender's blue butterfly, 
Lupinus sulphureus ssp. kincaidii, and Erigeron decumbens var. 
decumbens at a majority of their occurrences. Development and land 
alteration in the Willamette Valley has been so extensive that all the 
occurrences of the three species on the valley floor have essentially 
been relegated to small patches of habitat, except for three hilltop 
areas (Baskett Slough National Wildlife Refuge, Coburg Ridge, and 
McDonald State Forest) that, because of their topography, have not been 
subjected to agricultural and urban development activities occurring on 
the valley floor. Only 16 out the 84 remnant prairie sites that are 
occupied by one or more of these species are currently not threatened 
with destruction of habitat. However, herbivory, exotic weed species 
competition, and/or succession threaten all of these 16 sites (see 
Factor E below for more information). As habitat loss continues on 
these prairie remnants, populations of the three species in these 64 
areas are likely to be extirpated. At least 12 of 31 sites occupied by 
Fender's blue butterfly, 47 of 51 sites occupied by L. sulphureus ssp. 
kincaidii, and 24 of 28 sites occupied by E. decumbens var. decumbens 
occur on private lands and, without further action, are expected to be 
lost in the near future. The threat of extinction for these species is 
high, given the expected continuing extirpation of small populations, 
the continued habitat loss on moderate sites and large sites, and the 
continuing degradation of habitat, even on secure sites (see Factor E 
below for more information about continuing degradation of habitat).

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Rare butterflies, such as Fender's blue butterfly are highly prized 
by insect collectors. Although there are no studies on the impact of 
the removal of individuals from natural populations of this animal, 
based on studies of another lycaenid butterfly (Duffey 1968), and an 
endangered nymphalid butterfly (Gall, 1984a and 1984b), it is likely 
that Fender's blue butterfly could be adversely affected due to its 
isolated, possibly small populations. There is an international 
commercial trade for butterfly species proposed for listing, as well as 
other imperiled or rare butterflies (C.D. Nagano, J. Mendoza, and C. 
Schroeder, USFWS, pers. obs., 1992-1997) and specimens of Fender's blue 
butterfly are known to have recently been offered for trade (C. Nagano 
pers. obs.). Some collectors and dealers closely monitor listing 
activities by the Service and they are known to have stockpiled rare 
butterflies in anticipation of their becoming designated as endangered 
or threatened species (C.D. Nagano and J. Mendoza, pers. obs., 1992). 
Collecting from small colonies or repeated handling and marking 
(particularly of females and in years of low abundance) could seriously 
damage the populations through loss of individuals and genetic 
variability (Gall 1984b; Murphy 1988; Singer and Wedlake 1981). 
Collection of females dispersing from a colony also can reduce the 
probability that new colonies will be founded. Collectors pose a threat 
because they may be unable to recognize when they are depleting 
butterfly colonies below the thresholds of survival or recovery, 
especially when they lack appropriate biological training or the area 
is visited for a short period of time (Collins and Morris 1985).
    There likely is high interest by collectors in Fender's blue 
butterfly due to its unique history of assumed extinction. The 
rediscovery in 1989 of this animal generated a great deal of publicity 
and interest, which in turn increases demand by collectors. Collectors 
often highly prize rare butterflies (Morris et al. 1991) and at times 
take all wild specimens obtainable for use in trade (U. S. Department 
of Justice, in litt. 1993). The populations of Fender's blue butterfly 
that remain face strong pressure from some members of the collecting 
community. Since many of the Fender's blue butterfly populations occur 
along public roadsides, the species is easily acquired and the 
extremely limited numbers and distribution of many of the remaining 
populations make this species vulnerable to collectors.
    Due to their unattractive weedy like appearance, the threat to 
Erigeron decumbens var. decumbens and/or Lupinus sulphureus ssp. 
kincaidii from collection for horticultural purposes may be less than 
the threat from collectors faced by Fender's blue butterfly. Although 
no current evidence exists of such horticultural collection or

[[Page 3870]]

other overutilization for scientific purposes for either E. decumbens 
var. decumbens or L. sulphureus ssp. kincaidii, the threat posed by 
collecting for personal herbarium specimens is significant due to their 
rarity and the relative accessability of roadside populations.

C. Disease or Predation

    Although most lepidopteran larvae suffer significant mortality from 
parasitoid attack, no instances of parasitism (Hammond 1993) or disease 
(R. H. T. Mattoni, pers. comm. to C. D. Nagano 1997) have been 
documented for Fender's blue butterfly.
    Lupinus sulphureus ssp. kincaidii evidently hosts a number of 
herbivore and parasite species. Gall-forming insects attack unopened 
flowers and the bases of woody stems. Weevils lay eggs in the 
developing floral embryos and their offspring stimulate the fruit to 
produce callous tissue as a food source. Misdirection of the developing 
fruit by weevil larvae effectively prevents viable seed formation in 
the parasitized fruits (Kuykendall and Kaye 1993b). Weevil damage at 
some sites (e.g., Willow Creek) can be high, with some plants suffering 
90 percent loss of mature fruits (E. Alverson, pers. comm. 1994). 
Herbivory has been documented at all three Fern Ridge Reservoir sites. 
Loss of floral parts through herbivory can also significantly reduce 
reproduction. Larvae of the silvery blue butterfly (Glaucopsyche 
lygdamus) graze flowers for pollen and in doing so effectively destroy 
them. Silvery blue larvae can reach high population densities at some 
of the sites and may reduce the fecundity of L. sulphureus ssp. 
kincaidii, but do not appear to cause the death of mature individual 
plants (C. Schultz, pers. comm. 1994).
    Evidence of insect herbivory on Erigeron decumbens var. decumbens 
is limited. Insect species collected on E. decumbens var. decumbens in 
1993 included sap-sucking insects (Hemiptera), a bruchid beetle, 
thrips, and mites (Clark et al. 1993). Other threats from herbivory 
include consumption of E. decumbens var. decumbens by cattle; no plants 
were found in areas currently or recently grazed during surveys 
conducted in 1986 (Kagan and Yamamoto 1987) and only one site was 
observed to support E. decumbens var. decumbens in the presence of 
cattle in 1993 (Clark et al. 1993).

D. The Inadequacy of Existing Regulatory Mechanisms

    In 1963, the protection of natural botanical resources by the State 
of Oregon was initiated with the passage of the Oregon Wildflower Law 
(ORS 564.010-564.040). This law was designed to protect specific showy 
botanical groups including lilies, shooting stars, orchids, and 
rhododendrons from collection and trade by horticulturists interested 
in the cultivation of these species. It also prohibits the collection 
of wildflowers from ``within 500 feet of the centerline of any public 
highway'' (ORS 564.020 (2)). Although protective in spirit, the Oregon 
Wildflower Law carries minimal penalties and is rarely enforced. As a 
means of protecting Lupinus sulphureus ssp. kincaidii and Erigeron 
decumbens var. decumbens populations, the effectiveness of the law is 
doubtful.
    In 1987, Oregon Senate Bill 533 was passed to augment the 
legislative actions available for the protection of the State's 
threatened and endangered species, both plant and animal. This bill, 
known as the Oregon Endangered Species Act, mandates responsibility for 
threatened and endangered species in Oregon to two State agencies--the 
Oregon Department of Agriculture (ODOA) for plant species (ORS 564.105) 
and the Oregon Department of Fish and Wildlife (ODFW) for ``wildlife'' 
species (ORS 496.172).
    As reauthorized in 1995 (HB 2120), the Oregon Endangered Species 
Act does not include invertebrate animals in the definition of 
``wildlife.'' Therefore, Fender's blue butterfly receives no protection 
under the Oregon Endangered Species Act. The Oregon Natural Heritage 
Program is the only State agency ``which tracks locations of and works 
to protect the rare, threatened and endangered invertebrates of 
Oregon'' (Oregon Natural Heritage Program 1993). The Heritage program 
has created a Sensitive Species invertebrate list, which includes 
Fender's blue butterfly as a ``priority 1 species.'' Priority 1 species 
are ``taxa threatened or endangered throughout range'' (Oregon Natural 
Heritage Program 1993). The program can assist planning agencies in 
managing lands for the benefit of rare invertebrate taxa, but it has no 
regulatory authority over rare invertebrates (Jimmy Kagan, Oregon 
Natural Heritage Program, pers. comm. 1997).
    For plant species, the Oregon Endangered Species Act directs the 
ODOA to maintain a strong program to conserve and protect native plant 
species classified by the State as threatened or endangered. Erigeron 
decumbens var. decumbens, as a State-listed endangered species and 
Lupinus sulphureus ssp. kincaidii as a State-listed threatened species 
receive protection on State-managed lands under the Oregon Endangered 
Species Act. The ODOA is able to regulate the import, export, or 
trafficking of State-listed plant species when they are in transit 
(under ORS 564.1200). The ODOA's ability to protect plant populations, 
such as restricting take under the Oregon Endangered Species Act, is 
limited to ``land owned or leased by the State, or for which the State 
holds a recorded easement'' (ORS 564.115). ``Nothing in ORS 564.100 to 
564.130 is intended * * * to require the owner of any commercial forest 
land or other private land to take action to protect a threatened 
species or endangered species'' on his lands (ORS 564.135(1)). As a 
result, populations of L. sulphureus ssp. kincaidii and E. decumbens 
var. decumbens on private lands receive minimal protection from their 
State status as endangered or threatened.
    ODOT owns and manages roadside habitat where Lupinus sulphureus 
ssp. kincaidii and Erigeron decumbens var. decumbens are present. The 
Oregon Endangered Species Act requires the protection of these State-
listed species. ODOT has responded, in conjunction with Oregon State 
University researchers and the Native Plant Society of Oregon, by 
providing road crews with maps of these areas and instruction to avoid 
herbicide use.
    Lupinus sulphureus ssp. kincaidii, Erigeron decumbens var. 
decumbens, and Fender's blue butterfly occurrences within the Service's 
National Wildlife Refuges receive protection within the boundaries of 
the refuge. All three species occur together only at Baskett Slough 
National Wildlife Refuge, which actively manages habitat for the 
benefit of the species.
    Under section 7 of the Endangered Species Act, Federal agencies are 
required to consult with the Service if any action they regulate, fund 
or carry out may jeopardize the continued existence of an endangered or 
threatened species. Species that are candidates for listing receive no 
formal regulatory protection under the Act. The BLM and the Forest 
Service (FS) manage lands occupied by Lupinus sulphureus ssp. 
kincaidii. This species on BLM properties is given some protection 
through a general conservation agreement that applies to all Federal 
candidate species. The population of L. sulphureus ssp. kincaidii that 
occurs in the Umpqua National Forest is not covered under any 
conservation agreement and receives no official protection under the 
Act.
    On Corps lands, discretion for the protection and management of 
State-

[[Page 3871]]

 listed and Federal candidate species lies at the local level. Funds 
may be available in some years to proactively manage these species. 
Lupinus sulphureus ssp. kincaidii, Erigeron decumbens var. decumbens, 
and Fender's blue butterfly have received habitat protection, as well 
as support for research activity from the Corps through allocation of 
personnel and supplies to these projects. This protection and 
cooperation is voluntary for candidate species and is dependent on 
continuation of sufficient funding.
    Populations of Erigeron decumbens var. decumbens occur in 
seasonally flooded wet prairies with hydric soils (Clark et al. 1993). 
Under section 404 of the Clean Water Act, the Corps regulates the 
discharge of fill into waters of the United States, including navigable 
waters, wetlands (e.g., wet prairies), and other waters (33 CFR parts 
320-330). The Clean Water Act requires project proponents to obtain a 
permit from the Corps prior to undertaking many activities (e.g., 
grading, discharge of soil or other fill material, etc.) that would 
result in the filling of wetlands subject to the Corps' jurisdiction. 
The Corps promulgated nationwide permit number 26 (NWP 26) to address 
fill of isolated or headwater wetlands. Under the 1996 reauthorized NWP 
26 (61 FR 65873), project proposals that involve the fill of wetlands 
less than one third of an acre are considered authorized. Fill areas 
between 0.33 acre and 1 acre require only notification to the Corps. 
When placement of fill would adversely modify between 1 to 3 acres of 
wetland, the Corps circulates a predischarge notification to the 
Service and other interested parties for comment to determine whether 
or not an individual permit should be required for the proposed fill 
activity and associated impacts.
    Individual Corps permits are required for discharge of material 
that would fill or adversely modify greater than 3 acres of wetlands. 
The review process for individual permits is more rigorous than for 
nationwide permits. Unlike nationwide permits, an analysis of 
cumulative wetland impacts is required for individual permit 
applications. Resulting permits may include special conditions that 
require potential avoidance or mitigation for environmental impacts. On 
nationwide permits, the Corps has discretionary authority to instead 
require an individual permit if the Corps believes that resources are 
sufficiently important, regardless of the wetland's size. In practice, 
however, the Corps generally does not require an individual permit when 
a project qualifies for a nationwide permit, unless a threatened or 
endangered species or other significant resources would be adversely 
affected by the proposed activity. In such cases, conferencing and 
consultation requirements of section 7 of the Act do pertain to the 
Corps' regulatory process.
    Disking and some other farming, ranching and silviculture practices 
can degrade or destroy wetland habitat without a permit from the Corps 
because these activities are exempt from regulation under the Clean 
Water Act (33 CFR 323.4 (a)). The discontinuous configuration of the 
existing wet prairies further obscures these wetland losses. 
Occurrences of Lupinus sulphureus ssp. kincaidii, and Fender's blue 
butterfly in upland (non-wetland) areas receive no protection under 
section 404 of the Clean Water Act.
    The primary inadequacies in existing regulations pertain to 
populations of Fender's blue butterfly, Lupinus sulphureus ssp. 
kincaidii, and Erigeron decumbens var. decumbens that occur on private 
lands that currently have no connection to Federal authority or 
funding. Privately owned lands where populations of these species occur 
constitute a significant portion of the range of these species and play 
a substantial role in their continued existence.

E. Other Natural or Manmade Factors Affecting its Continued Existence

    Larger sites (greater than 10 ha (25 ac)) currently support 
relatively stable populations of Fender's blue butterflies, Lupinus 
sulphureus ssp. kincaidii, and Erigeron decumbens var. decumbens and 
provide the greatest potential for long-term persistence of the species 
if their current condition can be sustained or improved. However, few 
of these larger sites are secure from threats due to habitat loss. The 
only large site occupied by each of the species that is considered 
relatively secure from habitat loss is Baskett Slough National Wildlife 
Refuge in Polk County, although the habitat condition is declining from 
invasion by alien plants (Hammond 1996, Hammond 1994, Hammond and 
Wilson 1993). The two remaining large butterfly sites (Coburg Ridge 
area--1 and 2, and McDonald State Forest 1) and the one remaining large 
lupine site (McDonald State Forest 1) are not considered secure because 
these sites face loss or degradation of habitat through adjacent 
silviculture operations, ecological succession to shrub and forest, and 
competition from alien species (Hammond 1994, Kuykendall and Kaye 
1993a).
    Erigeron decumbens var. decumbens occupies three large sites. Two 
of those sites, one occurring on Corps property and the other on land 
owned by TNC, are being managed to benefit native prairie species and 
are relatively secure. The third site on private land is not managed 
for native prairie species and is not protected from habitat loss.
    The small occurrences of the three taxa in this proposed rule, 
predominantly roadside and fence line/boundary sites, face an immediate 
threat of destruction from a variety of activities including 
development, agriculture, silvicultural practices, roadside 
maintenance, and herbicide application. The degree to which habitat 
loss threatens Fender's blue butterfly, Lupinus sulphureus ssp. 
kincaidii, and Erigeron decumbens var. decumbens becomes evident when 
the size of the populations is examined. Of the 51 sites occupied by L. 
sulphureus ssp. kincaidii, 40 consist of small area occurrences, less 
than 3.4 ha (8.3 ac) in size. The Fender's blue butterfly, occupying a 
subset of the lupine sites, shows a similar pattern with 23 of its 31 
populations found on parcels of 3.4 ha (8.3 ac) or less. All of the 
small site occurrences of the Fender's blue butterfly are likely to be 
extirpated within the next five years because habitat may not be large 
enough to support viable populations. Of the 28 sites occupied by E. 
decumbens var. decumbens, 17 are less than 3.4 ha (8.3 ac) in size. 
These small occurrences account for a majority of the known populations 
for all three species.
    Given the impact of such habitat losses on these small habitat 
patches, the extirpation of most of the small Fender's blue butterfly 
populations is anticipated within five years. Lupinus sulphureus ssp. 
kincaidii may survive for a time in these small sites; nonetheless, 
extirpation of L. sulphureus ssp. kincaidii at most, if not all, of 
their 40 small sites is also anticipated in the future. Similarly, 
these habitat losses are expected to also cause extirpation of the 17 
small populations of Erigeron decumbens var. decumbens. Should these 
smaller populations disappear, only 8 habitat areas of Fender's blue 
butterfly (a 75 percent reduction in number of sites), 11 habitat areas 
of L. sulphureus ssp. kincaidii (a 78 percent reduction in number of 
sites), and 11 habitat areas of E. decumbens var. decumbens (a 61 
percent reduction of sites) will remain.
    The importance of these sites, particularly for the Fender's blue 
butterfly, lies in their potential to serve as corridors among larger, 
neighboring populations. The loss of these sites and

[[Page 3872]]

the loss of accompanying potential habitat, severely compromises the 
ability of any of the species to disperse from larger sites (Hammond 
and Wilson 1993, Schultz 1996). Larger populations will remain 
isolated, with no opportunities for migration and/or recolonization if 
local conditions become unfavorable. Thus, the status of the species as 
a whole declines.
    A less visible threat to the smaller occurrences is the decrease in 
vigor and viability experienced by populations of few individuals. For 
the Fender's blue butterfly, small numbers and localized populations 
increase the risk of loss through random genetic or demographic 
factors. (Gilpin and Soule' 1986, Kuykendall and Kaye 1993b, Lacy 
1992). Eighteen of the 31 Fender's blue butterfly sites contain 50 or 
fewer individuals. The threat of extinction due to naturally occurring 
genetic or demographic events can play a significant role in the 
instability of the species as a whole. The isolation of these small 
populations due to habitat fragmentation precludes recolonization from 
larger populations and could result in the permanent loss of 
occurrences once populations fall below a critical level.
    This pattern of extinction and recolonization of connected colonies 
of butterflies has been disrupted by the extensive fragmentation of 
remaining habitat and the disruption of the disturbance regimes that 
have maintained them. The remnant populations, now small in numbers, 
are either unconnected or exchange individuals to a very limited 
degree. With their limited dispersal abilities, low numbers and 
dwindling habitat, a majority of the remaining populations of Fender's 
blue butterfly likely face permanent extirpation. The small population 
sizes at several sites pose their own threat to the survival of 
Fender's blue butterfly as demographic and genetic problems can push a 
population to extinction (Hammond and Wilson 1993).
    Random human and environmental events may also affect the small 
populations of these species and cause future extirpations. The impact 
of such events are magnified by the size of the populations. It is much 
easier to cause the extirpation of a population occupying a small area 
than one occupying a larger area. Due to the small area occupied by 
many of the remaining populations, randomly occurring natural events 
can play a role in extirpation. One small population of Erigeron 
decumbens var. decumbens previously found on Finley National Wildlife 
Refuge was recently lost due to erosion (Meincke 1980). A natural 
change in a waterway course was apparently responsible. Shultz (1996) 
stated that large fluctuations in populations evident in her 3-year 
study from 1993 to 1995 indicate that Fender's blue butterfly 
populations are strongly influenced by random variation in weather 
conditions from year to year; these large fluctuations make Fender's 
blue butterfly extremely susceptible to loss of habitat and host plants 
due to human-caused events or invasive alien plants.
    A serious long-term threat to all Fender's blue butterfly, Lupinus 
sulphureus ssp. kincaidii, and Erigeron decumbens var. decumbens 
occurrences is the change in community structure due to succession. 
Currently, succession has been documented for 70 of the 84 relic 
prairie sites occupied by one or more of these species proposed for 
listing. Invasion by alien plant species has been documented at 36 of 
these 84 prairie sites. The natural transition of grassland to forest 
in the absence of disturbance means that prairie sites left unmanaged 
likely will eventually be lost (Clark et al. 1993; Franklin and Dyrness 
1973; Hammond and Wilson 1993; Johannsesen et al. 1971; Kuykendall and 
Kaye 1993). In addition, the presence of tall, fast-growing alien 
species speeds the conversion of open upland prairie to dense, rank 
grasslands and shrublands. Invasive woody species of concern include 
the alien plants Rubus discolor (Himalayan blackberry) and Cytisus 
scoparius (Scotch broom), and the native Toxicodendron diversiloba 
(poison oak). Non-native grass species aggressive enough to suppress L. 
sulphureus ssp. kincaidii and E. decumbens var. decumbens include 
Holcus lanatus (velvet grass), Dactylis glomerata (orchard grass), 
Brachypodium sylvaticum (false-brome), and Arrhenatherum elatius (tall 
oat-grass) (Hammond 1996).
    The degree of the threat of succession at roadside sites varies 
considerably depending on the vegetation control employed by each 
County at each site. Fender's blue butterfly populations at small 
roadside sites are weak (low numbers) and are close to extinction 
either through degradation of habitat from invasion of alien grasses, 
succession by shrubs and trees, or through development activities 
(Hammond 1996). One roadside site at Oak Ridge that was previously 
considered stable has declined since 1992, and is being invaded by 
large thickets of Rubus ssp. (blackberry) and Cytisus scoparius 
(Hammond 1996).
    Non-roadside sites in general face the greatest threat from 
succession/weed expansion and invasion due to a lack of disturbance 
that disrupts successional progress. Otherwise secure habitat on Corps 
lands is being heavily invaded by the alien plant Arrhenatherum 
elatius, and the butterfly population is alarmingly small (Schultz 
1996). Prime habitat occupied by Erigeron decumbens var. decumbens at 
Baskett Butte is rapidly being overgrown with alien grass and trees 
(Hammond 1996). About 25 percent of the large Coburg Ridge site 
occupied by Fender's blue butterfly and Lupinus sulphureus ssp. 
kincaidii is threatened by the profuse shrub growth of Cytisus 
scoparius (Hammond 1996). Regardless of the size of the site, invasion 
by non-native plants is a threat at all of the sites occupied by any of 
the three species proposed for listing in this rule.
    The application of pesticides and biological control agents to 
control insect pests, such as gypsy moths, is also a threat to Fender's 
blue butterfly. Although the sensitivity of Fender's blue butterfly 
larvae to specific insecticides is not known, the potential result from 
use of gypsy moth control agents on habitats occupied by the Fender's 
blue butterfly should not be dismissed (Hammond 1994). The use of 
microbial insecticides, such as Bacillus thuringiensis (Bt) has been 
shown to have significant residual toxic impacts on native butterflies 
under field conditions even with heavy rain and ultraviolet light 
exposure (Schriber and Gage 1995).
    Taken together as a category, other natural and manmade factors 
have a profound effect on the remaining populations of Fender's blue 
butterflies, Lupinus sulphureus ssp. kincaidii, and Erigeron decumbens 
var. decumbens. Nearly all of the populations are threatened by either 
alien species, successional transition of habitat, or demographic and 
genetic factors as a result of small population size. Populations of 
Fender's blue butterfly at all of the 31 sites are currently threatened 
by one of these factors. The same holds true for all 28 sites of E. 
decumbens var. decumbens and for all 51 sites of L. sulphureus ssp. 
kincaidii. Although progressing on a slower time scale, the 
encroachment of alien plants, the successional advance of tree and 
shrub species and other naturally occurring random events will, if 
unchecked, lead to reductions in population size, reductions in 
population viability and, ultimately, the extinction of these native 
prairie species.
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past,

[[Page 3873]]

present, and future threats faced by these species in determining to 
propose this rule. Threats to Fender's blue butterfly are more imminent 
than threats to Lupinus sulphureus kincaidii since the butterfly, with 
its biology and shorter life span, will exhibit more rapid declines in 
numbers and in the face of threats will be extirpated more quickly at 
any one location. Because of its longer life span, small numbers of L. 
sulphureus ssp. kincaidii plants are likely to persist longer in any 
given habitat area than are small numbers of butterflies. Threats to 
Erigeron decumbens var. decumbens are also more imminent than threats 
to L. sulphureus ssp. kincaidii because of the fewer populations of E. 
decumbens var. decumbens. Secondly, many of the populations of E. 
decumbens var. decumbens grow along roadsides adjacent to agricultural 
activities (especially grass seed farms) where herbicide spraying to 
create bare soil is common practice. Based on this evaluation, Fender's 
blue butterfly and E. decumbens var. decumbens are in danger of 
extinction throughout all or a significant portion of their respective 
ranges, while L. sulphureus ssp. kincaidii is likely to become 
endangered within the foreseeable future. Therefore, the Service 
proposes to list Fender's blue butterfly (Icaricia icarioides fenderi) 
and E. decumbens var. decumbens (Willamette daisy) as endangered and to 
list L. sulphureus ssp. kincaidii (Kincaid's lupine) as threatened.

Critical Habitat

    Critical habitat is defined in section 3(5)(A) 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 
a determination that such areas are essential for the conservation of 
the species. The term ``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, requires that to the 
maximum extent prudent and determinable, the Secretary propose critical 
habitat at the time a species is determined to be threatened or 
endangered. The Service finds that designation of critical habitat is 
not prudent for Erigeron decumbens var. decumbens, Lupinus sulphureus 
ssp. kincaidii, or Fender's blue butterfly at this time. Service 
regulations (50 CFR 424.12(a)(1)) state that the designation of 
critical habitat is not prudent when one or both of the following 
situations exist--(1) The species is threatened by taking or other 
human activity, and identification of critical habitat can be expected 
to increase the degree of threat to the species or (2) such designation 
of critical habitat would not be beneficial to the species.
    The listing of Lupinus sulphureus ssp. kincaidii and Erigeron 
decumbens var. decumbens in and of itself contributes to a certain 
level of risk from over-collection. This is because listing 
acknowledges the rarity of a species, which then creates a certain 
level of demand by collectors. Easily accessible roadside populations 
with few individuals would be particularly susceptible to 
indiscriminate collection by persons interested in rare plants and/or 
butterflies if not for the fact that location information is not 
readily available.
    Designation of critical habitat for Lupinus sulphureus ssp. 
kincaidii, Erigeron decumbens var. decumbens, and Fender's blue 
butterfly is not considered prudent, because the disclosure of precise 
maps and descriptions of critical habitat in the Federal Register would 
likely subject these populations to loss of individuals and over-
collection, resulting in the further decline of the species. The 
Fender's blue butterfly is also vulnerable to acts of vandalism, which 
may damage or eliminate populations of this animal.
    In the case of Fender's blue butterfly, both criteria apply. As 
discussed under ``Summary of Factors Affecting the Species,'' this 
animal and its habitat are vulnerable to several activities, especially 
the removal of specimens for scientific or personal collections. The 
Service is concerned about the impacts of the illicit commercial trade 
on Fender's blue butterfly. Specimens of this species are known to have 
recently been offered for trade by a butterfly collector. Unauthorized 
collecting is an activity that can be difficult to control because it 
can be done in an inconspicuous and discreet manner. The international 
trade of butterflies, including listed species, is an established 
practice and the value of a specimen is commensurate with the quality 
of the specimen and its rarity. High prices for prized specimens can 
provide an incentive for illegal take and trade. Listing in itself 
increases the publicity and interest in a species' rarity, and thus may 
directly increase the value and demand for specimens. Trade of 
illegally captured or held butterflies and other invertebrates has lead 
to several arrests and convictions for violations of the Lacey Act 
(Claiborne 1997; Hoekwater 1997; Mendoza 1995; U. S. Department of 
Justice 1993, 1994, 1995a, 1995b; Williams 1996). However, with the 
designation of critical habitat, precise pinpointing of localities 
would result from publication of critical habitat descriptions and maps 
in the Federal Register. Since the access to many sites is not actively 
protected, managed or monitored closely enough to prevent trespass or 
restrict access, the disclosure of critical location information on 
rare species increases collection activities on the animal, even for 
butterflies that have been designated as endangered or threatened 
species.
    Since many of the extant populations of Fender's blue butterfly are 
comprised of a small number of individuals (less than a few hundred 
individuals, and at seven sites only five individuals), one person 
seeking to augment a private or scientific collection could extirpate a 
population with the removal of a few individuals. Several populations 
are along roadsides, which make them particularly accessible. 
Therefore, designation of critical habitat would increase the 
vulnerability of smaller sites, thereby increasing the risk of 
extinction at these smaller sites from collection.
    In addition to the threat of over-collection, critical habitat 
designation may also make Fender's blue butterfly and its habitat prone 
to visitation and impact by non-collectors curious about any of the 
three species discussed in this proposed rule. Curiosity seekers may 
inadvertently trample host plants and crush eggs, larvae or adult 
butterflies. Fender's blue butterfly co-occurs with Lupinus sulphureus 
ssp. kincaidii at 14 sites and also occurs with Erigeron decumbens var. 
decumbens at 1 site. Publication of critical habitat descriptions and 
maps for L. sulphureus ssp. kincaidii, E. decumbens var. decumbens, or 
Fender's blue butterfly would place all three species at an increased 
risk of harm from trampling or habitat destruction. For example, in the 
spring of 1997, naturalists intent on observing the endangered Palos 
Verdes blue butterfly (Glaucopsyche lygdamus palosverdesensis) trampled 
and damaged its habitat in their quest to obtain photographs of the 
animal (C. Nagano, pers. obs. 1997).
    Designation of critical habitat could also increase the 
vulnerability of Fender's blue butterfly habitat to intentional 
destruction by landowners

[[Page 3874]]

who do not want a protected species on their property. In the mid-
1980's, a landowner disked the habitat of the now endangered Quino 
checkerspot butterfly (Euphydryas editha quino) and eliminated the 
species from the site after being informed about its presence (C. 
Nagano, pers. obs.).
    Furthermore, the designation of critical habitat provides limited 
benefit in addition to the protection and awareness that these three 
taxa will receive by virtue of their listing. 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 occurrences of these three species are so closely 
associated to their habitat year-round that any designated critical 
habitat areas would overlap areas of species' presence and occurrence. 
Therefore, when a species is listed, an analysis to determine jeopardy 
under section 7(a)(2) would consider take associated with habitat 
impacts. Such an analysis would closely parallel any analysis of 
habitat impacts conducted to determine adverse modification of critical 
habitat. As a result, a determination of adverse modification of 
critical habitat for Fender's blue butterfly or Lupinus sulfureus ssp. 
kincaidii or Erigeron decumbens ssp. decumbens is highly likely to be 
accompanied with a determination of jeopardy. Listing of these species 
will ensure that section 7 consultation occurs and potential impacts to 
the species and its habitat are considered for any Federal action that 
may affect these species. In the case of Fender's blue butterfly, the 
listing of L. sulfureus ssp. kincaidii will also ensure that Federal 
agencies consult even when Federal actions may affect unoccupied 
potentially suitable habitat for the butterfly.
    It is the intent of critical habitat designation to provide 
additional benefits to the species through increased awareness and 
management activities. Benefits resulting from designation of critical 
habitat are anticipated to be limited because Federal, State, and 
conservation group land managers with moderate and larger extant 
populations of Fender's blue butterfly and Erigeron decumbens ssp. 
decumbens have known of the occurrence of these species and have 
initiated management activities in several cases. The largest 
populations of the Fender's blue butterfly occur at Baskett Slough 
National Wildlife Refuge (1,400 individuals on 50 ha) and the second 
largest is at Willow Creek Main managed by TNC (764 individuals on 3.8 
ha). The largest population of Erigeron decumbens ssp. decumbens occurs 
at Willow Creek Preserve managed by TNC (2,080 individual plants on 
20.3 ha) and the second and third occur on Corps land (Fisher Butte has 
1,500 plants on 20.3 ha and Fisher Butte Dike has 1,000 plants on 4.1 
ha). All of the large populations of Lupinus sulphureus ssp. kincaidii 
occur on private lands and designating critical habitat for L. 
sulphureus ssp. kincaidii would reveal locations of the Fender's blue 
butterfly.
    The BLM, FS, Corps, and the Service are aware of the presence and 
locations of the three species on their properties. The Corps and 
Service are managing the lands that are under their jurisdiction to 
restore habitat for the three species and are monitoring the existing 
populations.
    Extant populations of Fender's blue butterfly and Lupinus 
sulphureus ssp. kincaidii occur on State lands managed by ODOT and 
Oregon State University (OSU) College of Forestry. The ODOT is aware of 
locations of Fender's blue butterfly, L. sulfureus ssp. kincaidii, and 
Erigeron decumbens ssp. decumbens sites, and are currently managing 
these sites to avoid impacts from State road maintenance activities. 
The ODOT is a non-Federal representative of the Federal Highway 
Administration (FHA) for the purposes of section 7 consultation. 
Therefore, any ODOT activities funded by the FHA that may affect listed 
species would require section 7 consultation. The OSU Department of 
Botany and Plant Pathology has been working cooperatively with OSU 
College of Forestry to conserve habitats at McDonald State Forest where 
L. sulphureus ssp. kincaidii and Fender's blue butterfly occur in 
butterfly meadows on OSU lands (Mark Wilson, pers. comm. 1997).
    Other Federal agencies will be notified with this proposed rule. 
Therefore, agencies such as the Department of Housing and Urban 
Development (HUD) would be subject to section 7 consultation under the 
Act. Agencies, such as HUD, with any actions that may impact listed 
species whether occurring on Federal, State, or private lands, would be 
subject to section 7 consultation under the Act. Since activities on 
Federal lands and federally funded activities would be subject to 
section 7 consultation and recovery planning with listing, protection 
of habitat will be addressed through the consultation and recovery 
processes.
    Aside from consideration under section 7, the Act does not provide 
any additional protection to lands designated as critical habitat. 
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.
    Critical habitat designation would provide limited benefit on 
private lands. The primary reasons are that critical habitat 
designation provides protection only on Federal lands or on private 
lands if there is Federal involvement through authorization or funding 
of, or participation in, a project or activity. In other words, a 
designation of critical habitat on private lands does not compel or 
require private landowners to undertake recovery or active management 
for the species. Also, Federal actions on private lands are likely to 
be limited, but nevertheless would require section 7 consultation if 
such actions may affect listed species. In addition, private landowners 
with sizeable or significant populations of the Fender's blue 
butterfly, Lupinus sulfureus ssp. kincaidii, and Erigeron decumbens 
var. decumbens are aware of the populations of the species on their 
lands. Landowners and managers of smaller sites will be notified with 
publication of the proposed rule. In the case of The Nature 
Conservancy, management and conservation activities have been 
implemented.
    Smaller roadside sites may benefit from critical habitat 
designation by increasing awareness of locations to County road 
maintenance crews. However, the benefit of critical habitat designation 
of these smaller sites would be small to negligible when compared to 
the increased risks and vulnerability these smaller sites may face from 
collection or vandalism with disclosure of their locations.
    In summary, the Service believes that any benefit potentially 
provided by designation of critical habitat for Fender's blue 
butterfly, Lupinus sulphureus ssp. kincaidii, or Erigeron decumbens 
var. decumbens would be outweighed by the increase in threats to the 
species and their habitat from illegal collecting and vandalism caused 
by such designation. Therefore, the Service has determined that 
designation of critical habitat for Fender's blue butterfly, Lupinus 
sulphureus ssp. kincaidii, or Erigeron decumbens var. decumbens is not 
prudent. Protection of Fender's blue butterfly habitat, Lupinus

[[Page 3875]]

sulphureus ssp. kincaidii, and Erigeron decumbens var. decumbens will 
be addressed through the section 7 consultation process and through 
recovery actions.

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 States and requires that recovery actions be 
carried out for all listed species. The protection required of Federal 
agencies and the prohibitions against taking and harm of animals and 
certain activities involving listed plants are discussed, in part, 
below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
Part 402. Section 7(a)(4) requires Federal agencies to confer 
informally with the Service on any action that is likely to jeopardize 
the continued existence of a proposed species or result in destruction 
or adverse modification of proposed critical habitat. If a species is 
listed subsequently, section 7(a)(2) requires Federal agencies to 
ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of such a species or to 
destroy or adversely modify its critical habitat. If a Federal action 
is likely to adversely affect a listed species or its critical habitat, 
the responsible Federal agency must enter into formal consultation with 
the Service.
    As a result of the occupation of roadside habitat by Erigeron 
decumbens var. decumbens, Lupinus sulphureus ssp. kincaidii, and 
Fender's blue butterfly, the FHA would become involved with these 
species in the event of full or partial funding of state highway 
maintenance by the Federal government. Such maintenance activities 
would be subject to review under the Act. Additionally, sites 
supporting occurrences of E. decumbens var. decumbens, L. sulphureus 
ssp. kincaidii, and Fender's blue butterfly on private holdings would 
be subject to review under section 7 of the Act if HUD is involved in 
the issuance of housing loans. The BLM, FS, and Corps manage lands 
known to contain extant populations of the three species in this 
proposed rule. In all of these cases, the consultation and conservation 
requirements placed upon Federal agencies by the Act would be 
initiated. Furthermore, opportunities for land acquisition, 
conservation agreements and other recovery strategies would be 
bolstered by listing these species as endangered or threatened.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered and 
threatened plants. All prohibitions of section 9(a)(2) of the Act, 
implemented by 50 CFR 17.61 for endangered plants and 50 CFR 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 of 
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 (see 16 
U.S.C. Sec. 1538 (a)(2)(B). Section 4(d) of the Act allows for the 
provision of such protection to threatened species through regulation. 
This protection may apply to Lupinus sulphureus ssp. kincaidii in the 
future if a special regulation is promulgated after opportunity for 
public notice and comment. Seeds from cultivated specimens of 
threatened plants are exempt from these prohibitions provided that 
their containers are marked ``Of Cultivated Origin.'' Certain 
exceptions to the prohibitions apply to agents of the Service and State 
conservation agencies.
    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 and threatened plants under certain circumstances. 
Such permits are available for scientific purposes and to enhance the 
propagation or survival of the species. For threatened plants, permits 
also are 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 Lupinus sulphureus ssp. kincaidii and Erigeron 
decumbens var. decumbens are not common in cultivation or in the wild.
    The Act and implementing regulations also set forth a series of 
general prohibitions and exceptions that apply to all endangered 
wildlife. These prohibitions, codified at 50 CFR 17.21, in part, make 
it illegal for any person subject to the jurisdiction of the United 
States to take (includes harass, harm, pursue, hunt, shoot, wound, 
kill, trap, capture, collect; or to attempt any of these), import or 
export, ship in interstate commerce in the course of commercial 
activity, or sell or offer for sale in interstate or foreign commerce 
any listed species. It also is illegal to possess, sell, deliver, 
carry, transport, or ship any such wildlife that has been taken 
illegally. Certain exceptions apply to agents of the Service and State 
conservation agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.22 and 17.23. Such permits 
are available for scientific purposes, to enhance the propagation or 
survival of the species, and/or for incidental take in connection with 
otherwise lawful activities.
    It is the policy of the Service, as 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 the range of a 
species. Erigeron decumbens var. decumbens, and Lupinus sulphureus ssp. 
kincaidii are known to occur on Federal lands under the jurisdiction of 
the Service, Corps, BLM, or FS. In the event of listing, occurrences of 
these species on Federal lands would be protected from collection, 
damage or destruction under section 9 of the Act. State law provides 
some protection to populations on State-owned lands as discussed 
previously. In appropriate cases, collection of these species could be 
allowed through the issuance of a Federal endangered species permit. 
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.
    As a listed wildlife species, Fender's blue butterfly would receive 
more extensive protection under the Act than described for the plant 
species above.

[[Page 3876]]

Section 9 prohibits the take of any listed wildlife species by any 
person subject to the jurisdiction of the United States. The Service 
believes that, based on the best available information, the following 
actions would not be violations of section 9:
    (1) Possession, delivery, or movement, including interstate 
transport and import or export from the United States, involving no 
commercial activity, of dead specimens of Fender's blue butterfly that 
were collected prior to the date of publication in the Federal Register 
of a final regulation adding this taxon to the list of endangered 
species;
    (2) Actions that may affect Fender's blue butterfly and are 
authorized, funded, or carried out by a Federal agency when the action 
is conducted in accordance with section 7 of the Act;
    (3) Land actions or management carried out under a habitat 
conservation plan approved by the Service pursuant to section 
10(a)(1)(B) of the Act, or an approved conservation agreement; and,
    (4) Scientific research carried out under a recovery permit issued 
by the Service pursuant to section 10(a)(1)(A) of the Act.
    Potential activities involving Fender's blue butterfly that the 
Service will likely consider a violation of section 9 include, but are 
not limited to, the following:
    (1) Take of Fender's blue butterfly without a recovery permit 
pursuant to section 10(a)(1)A) or an incidental take permit pursuant to 
section 10(a)(1)(B) of the Act (this includes harassing, harming, 
pursuing, hunting, shooting, wounding, killing, trapping, capturing, or 
collecting, or attempting any of these actions);
    (2) Possess, sell, deliver, carry, transport, or ship illegally 
taken specimens of Fender's blue butterfly, except for properly 
documented antique specimens of this taxon at least 100 years old, as 
defined by section 10(h)(1) of the Act;
    (3) The unauthorized release of biological control agents that 
attack, damage, or kill any stage of this taxa;
    (4) The removal or destruction of the foodplants being utilized by 
Fender's blue butterfly, defined as Lupinus sulphureus ssp. kincaidii, 
L. albicaulis, and L. laxiflorus; and,
    (5) Destruction or alteration of Fender's blue butterfly habitat by 
grading, leveling, plowing, mowing, burning, herbicide or pesticide 
spraying, intensively grazing, or otherwise disturbing grasslands that 
result in the death or injury of adult butterflies and/or their larvae 
or eggs, or that impair the species' essential breeding, foraging, or 
sheltering.
    Questions regarding whether specific activities will constitute a 
violation of section 9 should be directed to the State Supervisor of 
the Service's Oregon State Office (see ADDRESSES section). Requests for 
copies of the regulations concerning listed plant and animal species 
and general inquiries regarding prohibitions and permits may be 
addressed to the U.S. Fish and Wildlife Service, Endangered Species 
Permits, 911 N.E. 11th Avenue, Portland, Oregon 97232-4181 (telephone 
503-231-2063; FAX 503-231-6243).

Public Comments Solicited

    The Service intends that any final action resulting from this 
proposal will be as accurate and as effective as possible. Therefore, 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to these species;
    (2) The location of any additional populations of these species and 
the reasons why any habitat should or should not be determined to be 
critical habitat pursuant to section 4 of the Act;
    (3) Additional information concerning the range, distribution, and 
population size of these species; and
    (4) Current or planned activities in the subject area and their 
possible impacts on Erigeron decumbens var. decumbens, Lupinus 
sulphureus ssp. kincaidii, and Fender's blue butterfly.
    Final promulgation of the regulation on these species will take 
into consideration the comments and any additional information received 
by the Service. Such communications may lead to a final regulation that 
differs from this proposal.
    The Endangered Species Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days of the date of publication of the proposal in the Federal 
Register. Such requests must be made in writing and addressed to State 
Supervisor, U.S. Fish and Wildlife Service, Oregon State Office (see 
ADDRESSES above).

Required Determinations

    This rule does not contain collections of information that require 
approval by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq.

National Environmental Policy Act

    The Fish and Wildlife 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

    This rule does not contain collections of information that require 
approval by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq.

References Cited

    A complete list of all references cited herein, as well as others, 
is available upon request from the Oregon State Office (see ADDRESSES 
above).
    Author. The primary author of this proposed rule is Richard 
VanBuskirk, Fish and Wildlife Biologist (see ADDRESSEES section). 
Assistance with the portions of this proposed rule dealing with 
Fender's blue butterfly were completed by Chris Nagano, staff 
entomologist, U.S. Fish and Wildlife Service, Carlsbad Field Office, 
2730 Loker Avenue West, Carlsbad, California 92008.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, the Service hereby proposes to amend part 17, 
subchapter B of chapter I, title 50 of the Code of Federal Regulations, 
as set forth below:

PART 17--[AMENDED]

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

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

    2. Amend section 17.11(h) by adding the following, in alphabetical 
order, under INSECTS, to the List of Endangered and Threatened Wildlife 
to read as follows:

Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 3877]]

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate                                                           
--------------------------------------------------------                        population where                       When       Critical     Special  
                                                            Historic range       endangered or         Status         listed      habitat       rules   
           Common name                Scientific name                              threatened                                                           
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
                *                   *                   *                   *                   *                   *                   *               
             Insects                                                                                                                                    
                                                                                                                                                        
                *                   *                   *                   *                   *                   *                   *               
Fender's blue butterfly..........  Icaricia icarioides   U.S.A. (OR)........  NA.................  E               ...........           NA           NA
                                    fenderi.                                                                                                            
                                                                                                                                                        
                *                   *                   *                   *                   *                   *                   *               
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend section 17.12(h) by adding the following, in alphabetical 
order, under FLOWERING PLANTS, to the List of Endangered and Threatened 
Plants to read as follows:

Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                                                                                         
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special  
         Scientific name                Common name                                                                               habitat       rules   
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
         Flowering Plants                                                                                                                               
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Erigeron decumbens var. decumbens  Willamette daisy....  U.S.A. (OR)........  Asteraceae.........  E               ...........           NA           NA
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Lupinus sulphureus ssp. kincaidii  Kincaid's lupine....  U.S.A. (OR, WA)....  Fabaceae...........  T               ...........           NA           NA
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: December 30, 1997.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-1851 Filed 1-26-98; 8:45 am]
BILLING CODE 4310-55-P
```