[Federal Register: May 26, 1999 (Volume 64, Number 101)]

[Rules and Regulations]               

[Page 28393-28403]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]




Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE52


Endangered and Threatened Wildlife and Plants; Threatened Status 

for the Plant Thelypodium howellii ssp. spectabilis (Howell's 

spectacular thelypody)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service) determine 

threatened status pursuant to the Endangered Species Act of 1973, as 

amended (Act), for Thelypodium howellii ssp. spectabilis (Howell's 

spectacular thelypody). Thelypodium howellii ssp. spectabilis is known 

from 11 sites in Baker and Union counties, Oregon. This taxon is 

threatened by a variety of factors including habitat destruction and 

fragmentation from agricultural and urban development, grazing by 

domestic livestock, competition from non-native vegetation, and 

alterations of wetland hydrology. This rule implements the Federal 

protection and recovery provisions afforded by the Act for the plant.

EFFECTIVE DATE: June 25, 1999.

ADDRESSES: The complete file for this rule is available for public 

inspection, by appointment, during normal business hours at the U.S. 

Fish and Wildlife Service, Snake River Basin Office, 1387 S. Vinnell 

Way, Room 368, Boise, Idaho 83709.

FOR FURTHER INFORMATION CONTACT: Robert Ruesink, Field Supervisor (see 

ADDRESSES section) (telephone 208/378-5243; facsimile 208/378-5262).



    Thelypodium howellii ssp. spectabilis is a herbaceous biennial that 

occurs in moist, alkaline meadow habitats at approximately 1,000 meters 

(m) (3,000 feet (ft)) to 1,100 m (3,500 ft) elevation in northeast 

Oregon. The plant is currently known from 11 sites (5 populations) 

ranging in size from 0.01 hectares (ha) (0.03 acres (ac)) to 16.8 ha 

(41.4 ac) in the Baker-Powder River valley in Baker and Union counties. 

The total occupied habitat for this species is approximately 40 ha (100 

ac). Plants at the type locality in Malheur County have not been 

relocated since 1927 and are considered to be extirpated (Kagan 1986). 

The entire extant range of this taxon lies within a 21 kilometer (km) 

(13 mile (mi)) radius of Haines, Oregon.

    Due to its relatively low elevation and rich soils, agriculture is 

the primary land use in the Baker-Powder River Valley region, which 

contains the 11 extant T. howellii ssp. spectabilis sites. The region 

is bordered on the west by the Elkhorn Mountains and on the east by the 

Wallowa Mountains (Kagan 1986). Annual precipitation for the Baker 

Valley averages 27 centimeters (cm) (10.6 inches (in)), most falling as 

snow in winter. Weather patterns follow the interior continental 

weather systems with little maritime influence. Winters are cold, and 

summers are warm and dry (Larkin and Salzer 1992).

    Thelypodium howellii ssp. spectabilis grows to approximately 60 cm 

(2 ft) tall, with branches arising from near the base of the stem. The 

basal leaves are approximately 5 cm (2 in) long with wavy edges and are 

arranged in a rosette. Stem leaves are shorter, narrow, and have smooth 

edges. Flowers appear in loose spikes at the ends of the stems. Flowers 

have four purple petals approximately 1.9 cm (0.75 in) in length, each 

of which is borne on a short (0.6 cm (0.25 in)) stalk. Fruits are long, 

slender pods (Greenleaf 1980, Kagan 1986).

    This taxon was thought to be extinct until rediscovered by Kagan in 

1980 near North Powder (Kagan 1986). The 11 recently discovered sites 

containing T. howellii ssp. spectabilis are located near the 

communities of North Powder, Haines, and Baker. The North Powder T. 

howellii ssp. spectabilis population contains five sites; the largest 

is subject to a conservation easement (16.8 ha (41.4 ac)). Until 

recently, one site near the town of North Powder, less than 0.8 ha (2.3 

ac) in size, had a plant protection agreement between the landowner and 

The Nature Conservancy. The Haines plant population currently consists 

of three small sites located in or near the town of Haines. Since the 

publication of the proposed rule, an additional site in Haines was 

identified (B. Russell, consultant, in litt. 1998) and one previously 

known site in Haines was apparently extirpated by development (P. 

Brooks, Forest Service, in litt. 1998). A 0.7 ha (1.8 ac) site west of 

Baker is within a 8 ha (20 ac) pasture adjacent to a road. Another site 

north of Baker (0.03 ha (0.08 ac)) exists in a small remnant of meadow 

habitat surrounded by farmland. One site approximately 8 km (5 mi) 

north of North Powder is located on private land at Clover Creek (Kagan 

1986, Oregon Natural Heritage Program (ONHP) 1998).

    Thelypodium howellii var. spectabilis was first described by Peck 

in 1932 (Peck 1932) from a specimen collected in 1927 near Ironside, 

Oregon (Malheur County). In 1973, Al-Shehbaz revised the genus and 

elevated the variety to subspecies status (Al-Shehbaz 1973). This taxon 

has larger petals than T. howellii ssp. howellii, and the paired 

filaments are not united (Al-Shehbaz 1973, Kagan 1986, Antell 1990). In 

addition, although both taxa occur in eastern Oregon, their habitats do 

not overlap (Kagan 1986). For purposes of this final rule, T. howellii 

ssp. spectabilis is recognized as a subspecies because of the taxonomic 

distinction made in 1973 (Al-Shehbaz 1973), although the plant was 

treated as a variety in the candidate assessment process (see 

``Previous Federal Action'' section).

    Thelypodium howellii ssp. spectabilis occurs in wet alkaline 

meadows in valley bottoms, usually in and around woody shrubs that 

dominate the habitat on the knolls and along the edge of the wet meadow 

habitat between the knolls. Associated species include Sarcobatus 

vermiculatus (greasewood), Distichlis stricta (alkali saltgrass), 

Elymus cinereus (giant wild rye), Spartina gracilis (alkali cordgrass), 

and Poa juncifolia (alkali bluegrass) (Kagan 1986). Soils are pluvial-

deposited alkaline clays mixed with recent alluvial silts, and are 

moderately well-drained (Kagan 1986).

    Thelypodium howellii ssp. spectabilis may be dependent on periodic 

flooding since it appears to rapidly colonize areas adjacent to streams 

that have flooded (Kagan 1986). In addition, this taxon does not 

compete well with

[[Page 28394]]

encroaching weedy vegetation such as Dipsacus sylvestris (teasel) 

(Davis and Youtie 1995).

Previous Federal Action

    Federal government actions for the plant began as a result of 

section 12 of the Endangered Species Act of 1973, (Act) as amended (16 

U.S.C. 1531 et seq.), which directed the Secretary of the Smithsonian 

Institution to prepare a report on those plants considered to be 

endangered, threatened, or extinct in the United States. This report, 

designated as House Document No. 94-51, was presented to Congress on 

January 9, 1975, and included Thelypodium howellii var. spectabilis as 

a threatened species. We published a notice in the July 1, 1975, 

Federal Register (40 FR 27823) of our acceptance of the Smithsonian 

Institution report as a petition within the context of section 4(c)(2) 

(petition provisions are now found in section 4(b)(3) of the Act) and 

our intention thereby to review the status of the plant taxa named 

therein. The July 1, 1975, notice included the above taxon. On June 16, 

1976, we published a proposal (41 FR 24523) to determine approximately 

1,700 vascular plant species to be endangered species pursuant to 

section 4 of the Act. The list of 1,700 plant taxa was assembled on the 

basis of comments and data received by the Smithsonian Institution and 

the Service in response to House Document No. 94-51 and the July 1, 

1975, Federal Register publication. Thelypodium howellii var. 

spectabilis was not included in the June 16, 1976, Federal Register 


    We published an updated notice of review for plants on December 15, 

1980 (45 FR 82480). This notice included Thelypodium howellii var. 

spectabilis as a category 1 candidate. Category 1 candidates were those 

for which the Service had sufficient information on biological 

vulnerability and threats to support proposals to list them as 

endangered or threatened species. This designation for T. howellii var. 

spectabilis was retained in the November 28, 1983, supplement to the 

Notice of Review (48 FR 53640), as well as subsequent revisions on 

September 27, 1985 (50 FR 39526), February 21, 1990 (55 FR 6184), and 

September 30, 1993 (50 FR 51143). Upon publication of the February 28, 

1996 Notice of Review (61 FR 7596), we ceased using category 

designations and included T. howellii var. spectabilis as a candidate 

species. Candidate species are those for which the Service has on file 

sufficient information on biological vulnerability and threats to 

support proposals to list the species as threatened or endangered.

    Section 4(b)(3)(B) of the Act requires the Secretary to make 

findings on pending petitions that present substantial information 

indicating the petitioned action may be warranted within 12 months of 

their receipt. Section 2(b)(1) of the 1982 amendments further requires 

that all petitions pending on October 13, 1982, be treated as having 

been newly submitted on that date. This was the case for Thelypodium 

howellii var. spectabilis, because the 1975 Smithsonian report had been 

accepted as a petition. On October 13, 1983, we found that the 

petitioned listing of the species was warranted, but precluded by other 

pending listing actions, in accordance with section 4(b)(3)(B)(iii) of 

the Act; notification of this finding was published on January 20, 1984 

(49 FR 2485). Such a finding requires us to consider the petition as 

having been resubmitted, pursuant to section 4(b)(3)(C)(I) of the Act. 

The finding was reviewed annually in October of 1983 through 1996.

    On January 13, 1998 (63 FR 1948), we published a proposal to list 

Thelypodium howellii ssp. spectabilis as a threatened species. We now 

determine T. howellii ssp. spectabilis to be a threatened species with 

the publication of this final rule.

    The processing of this final rule conforms with our Listing 

Priority Guidance published in the Federal Register on May 8, 1998 (63 

FR 25502). The guidance clarifies the order in which we will process 

rulemakings. Highest priority is processing emergency listing rules for 

any species determined to face a significant and imminent risk to its 

well being (Tier 1). Second priority (Tier 2) is processing final 

determinations on proposed additions to the lists of endangered and 

threatened wildlife and plants; the processing of new proposals to add 

species to the lists; the processing of administrative petition 

findings to add species to the lists, delist species, or reclassify 

listed species (petitions filed under section 4 of the Act); and a 

limited number of delisting and reclassifying actions. Processing of 

proposed or final designations of critical habitat is accorded the 

lowest priority (Tier 3). This final rule is a Tier 2 action and is 

being completed in accordance with the current Listing Priority 

Guidance. We have updated this rule to reflect any changes in 

information concerning distribution, status and threats since the 

publication of the proposed rule.

Summary of Comments and Recommendations

    In the January 13, 1998, proposed rule (63 FR 1948) and associated 

notifications, all interested parties were requested to submit factual 

reports or information that might contribute to the development of a 

final rule. The comment period was approximately three months long and 

closed on April 20, 1998. Appropriate State agencies, County 

governments, Federal agencies, scientific organizations, and other 

interested parties were contacted and requested to comment. A request 

for a public hearing was received from Rod Dowse of the Oregon 

Cattlemen's Association. On March 5, 1998, we published a notice in the 

Federal Register (63 FR 10817) announcing the public hearing and the 

extension of the public comment period until April 20, 1998. A notice 

announcing the public hearing and proposal was published in the Baker 

City Herald on February 24, 1998. We conducted a public hearing on 

April 9, 1998, at the Geiser Grand Hotel in Baker City, Oregon. 

Testimony was taken from 6 p.m. to 8 p.m. Four parties provided 


    During the public comment period, we received written and oral 

comments from ten parties. Four commenters expressed support for the 

listing proposal, three commenters opposed the proposal, and three were 

neutral. Written comments and oral statements obtained during the 

public hearing and comment period are combined in the following 

discussion. Opposing comments and other comments questioning the rule 

were organized into specific issues. These issues and our response to 

each are summarized as follows:

    Issue 1: The Service should conduct additional surveys for 

Thelypodium howellii ssp. spectabilis in Baker, Union, and Malheur 

counties to clarify its distribution and abundance. A few commenters 

believed that T. howellii ssp. spectabilis may be more widespread, and 

that further surveys were needed before listing.

    Service response: We used information provided by the Oregon 

Natural Heritage Program and other knowledgeable botanists to evaluate 

the status of T. howellii ssp. spectabilis. Information from botanical 

collections that date from the 1920's was also utilized in the 

preparation of the proposed rule. The type locality in Malheur County 

has been resurveyed by numerous botanists over the past two decades, 

and T. howellii ssp. spectabilis has not been relocated. Recent surveys 

in Malheur County conducted by staff

[[Page 28395]]

from the Service (E. Rey-Vizgirdas, Service botanist, in litt. 1998) 

and Bureau of Land Management (J. Findlay, Bureau of Land Management, 

pers. comm. 1998) have also failed to locate additional sites or 


    Only one commenter provided information on a T. howellii ssp. 

spectabilis site that was not specifically mentioned in the proposed 

rule (B. Russell, in litt. 1998). This site, located on private land in 

Haines, Oregon, is within \1/2\ mile of other sites containing this 

species and is subject to similar threats as the populations discussed 

in the proposed rule. Although T. howellii ssp. spectabilis populations 

vary in size from year to year and new populations may be found in the 

future, similar threats are likely to apply to any newly discovered 

populations. In summary, no data were provided to substantiate the 

claim that T. howellii ssp. spectabilis is more widespread than 

previously described in the proposed rule.

    Issue 2: Several commenters believed that more information was 

needed on the life history of T. howellii ssp. spectabilis. Some asked 

for further clarification on its habitat and growth requirements. One 

commenter claimed that this taxon may be a weed, similar to other 

noxious weeds in the mustard family. Another asked whether T. howellii 

ssp. spectabilis could be transplanted or propagated.

    Service response: Although several widespread members of the 

mustard family such as whitetop (Cardaria draba), blue mustard 

(Chorispora tenella), and tumble mustard (Sisymbrium altissimum) are 

considered to be noxious weeds, no species of Thelypodium are known to 

be noxious weeds in the western United States (Whitson et al. 1996).

    In some cases, transplanting or propagating rare plants is 

essential to recovery. However, we believe that the protection of 

existing habitat for T. howellii ssp. spectabilis is critical to the 

long-term conservation of this species. We will consider the 

feasibility of propagating individuals or establishing additional 

populations of T. howellii ssp. spectabilis during the development of a 

recovery plan for this species. Additional information on the life 

history and growth requirements of T. howellii ssp. spectabilis also 

will be gathered during the recovery process.

    Issue 3: Several commenters questioned the effects of activities 

such as grazing, altered hydrology, and agriculture on T. howellii ssp. 

spectabilis. One commenter wondered if other plant species have 

outcompeted T. howellii ssp. spectabilis in areas where hydrologic 

conditions have changed. Another commenter stated that habitat for T. 

howellii ssp. spectabilis has been highly altered by changes in natural 

wetland hydrology, and that such hydrologic changes may not be 

restorable. A few commenters stated that disturbance may actually be 

beneficial for T. howellii ssp. spectabilis. One commenter believed 

that grazing management is appropriate for habitat conditions in 

eastern Oregon, and that grazing is not a threat to T. howellii ssp. 

spectabilis. In addition, the effects of livestock on this taxon are 

not well known. Some commenters stated that T. howellii ssp. 

spectabilis is not threatened by agriculture because it occurs on land 

not suitable for farming.

    Service response: Only one population of T. howellii ssp. 

spectabilis occurs on land that may be managed for the long-term 

protection of this species (a permanent conservation easement on 

private land near North Powder, Oregon). All remaining T. howellii ssp. 

spectabilis sites in Baker and Union counties are subject to a variety 

of threats including development, road construction projects and 

maintenance, trampling, recreational activities, and the invasion of 

exotic plant species.

    The Service agrees that appropriate grazing management may be 

suitable for maintaining general habitat conditions and forage species 

in Baker and Union counties. However, the impact of livestock grazing 

on rare plant species is influenced by factors including the season and 

magnitude of grazing. In some cases, grazing effects can be neutral or 

even beneficial if grazing is managed to minimize impacts such as 

trampling or compaction. As described in the ``Summary of Factors 

Affecting the Species'' section, we believe that grazing of T. howellii 

ssp. spectabilis during the active growing season can adversely impact 

the reproduction of this species. Reproduction by seed is necessary for 

the survival of annual and biennial plant species such as T. howellii 

ssp. spectabilis. Because T. howellii ssp. spectabilis is palatable to 

livestock, grazing in occupied habitat prior to seed maturation and 

dispersal can result in lower seed set and fewer seedlings of T. 

howellii ssp. spectabilis.

    Changes in hydrology or soil conditions often result in changes in 

the abundance and distribution of plant species. At several sites 

containing T. howellii ssp. spectabilis near Baker City and North 

Powder, T. howellii ssp. spectabilis plants are located adjacent to, 

but not within areas dominated by wetland plant species such as 

cattails (Typha spp.), sedges (Carex spp.), water hemlock (Cicuta 

douglasii), and teasel (Dipsacus sylvestris). Although it is not known 

whether these species have actually displaced T. howellii ssp. 

spectabilis, it is unlikely that T. howellii ssp. spectabilis can 

persist in areas where the hydrologic conditions are not favorable or 

in areas dominated by exotic species.

    Although remaining sites supporting T. howellii ssp. spectabilis 

may not be directly threatened by agricultural conversion, indirect 

effects of agriculture include habitat fragmentation, changes in local 

hydrologic conditions, and the use of herbicides and pesticides (which 

may impact pollinator populations). Because all known T. howellii ssp. 

spectabilis sites have been invaded at least to some extent by noxious 

weeds such as teasel and thistles (Cirsium spp.). As a result, T. 

howellii ssp. spectabilis is particularly vulnerable to herbicide use.

    Issue 4: One commenter questioned the accuracy of population data 

for T. howellii ssp. spectabilis presented in the proposed rule, and 

further believed that information based on ``ocular estimates'' of 

population size should not be used.

    Service response: We acknowledge that careful collection of 

population data (e.g., numbers of plants and population trends) can be 

useful to identify problems such as poor reproduction and lack of 

recruitment of new individuals into the population. However, like most 

annual plants, the population size of biennial plant species such as T. 

howellii ssp. spectabilis can vary greatly from year to year. We do not 

rely solely on population information, but consider threats to the 

species as outlined under the ``Summary of Factors Affecting the 

Species'' section of all proposed and final listing rules. These 

factors are discussed in detail for this species in the ``Summary of 

Factors Affecting the Species'' section of this final rule.

    Issue 5: One commenter felt that T. howellii ssp. spectabilis 

should be listed as endangered rather than threatened due to the 

limited number of sites and threats to its habitat, and believed that 

T. howellii ssp. spectabilis is not likely to persist in small habitat 

areas. Another commenter stated that although the population of T. 

howellii ssp. spectabilis fluctuates from year to year, eight T. 

howellii ssp. spectabilis sites that have been monitored since the 

1980's appear to be declining. Two commenters provided information 

about a proposed race track development project near Haines, stating 

that this project, if implemented, could damage habitat for T. howellii 

ssp. spectabilis, and that the land may be zoned for industrial 

purposes. One commenter provided information on a population of T.

[[Page 28396]]

howellii ssp. spectabilis in Haines that occurs directly adjacent to a 

proposed highway improvement project. This commenter further stated 

that, as of June 1997, at least two lots in Haines that contained T. 

howellii ssp. spectabilis were for sale.

    Service response: We acknowledge that T. howellii ssp. spectabilis 

sites located within or adjacent to the City of Haines are threatened 

by isolation, development, and other activities, as described in the 

``Summary of Factors Affecting the Species'' section.

    However, we believe that the site supporting the largest habitat 

area (located near North Powder) can be managed for the long-term 

protection of this species. In addition, at least three other sites 

containing T. howellii ssp. spectabilis (including the second largest 

habitat area at Clover Creek) are not currently threatened by 

development. We will continue to work with willing landowners and 

State, local, and Federal agencies to ensure that grazing and other 

activities are managed to reduce impacts to this species and its 

habitat. The species is not in imminent danger of extinction. Thus, the 

listing as threatened rather than endangered is appropriate.

    Issue 6: One commenter stated that T. howellii ssp. spectabilis 

should not be listed because economic impacts have not been considered.

    Service response: In accordance with 16 U.S.C., paragraph 1533 

(b)(1)(A), 50 CFR 424.11(b), and section 4(b)(1)(A) of the Act, listing 

decisions are made solely on the basis of the best available scientific 

and commercial data. Economic impacts cannot be considered when 

determining whether to list a species under the Act.

    Issue 7: One commenter stated that the Service should not list T. 

howellii ssp. spectabilis because it has no authority to list or 

regulate species under the Act that are not involved in interstate 

commerce. This commenter further believed that Federal listing for T. 

howellii ssp. spectabilis is unnecessary since it would not confer 

greater protection for this species than Oregon's Endangered Species 

Act already provides.

    Service response: The Federal government has the authority under 

the Commerce Clause of the U.S. Constitution to protect this species 

for the reasons given in Judge Wald's opinion and Judge Henderson's 

concurring opinion in National Association of Home Builders v. Babbitt, 

130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 1185 S. Ct. 2340 (1998). 

That case involved a challenge to application of the Act prohibitions 

to protect the listed Delhi Sands flower-loving fly. As with T. 

howellii ssp. spectabilis, the Delhi Sands flower-loving fly is endemic 

to only one state. Judge Wald held that application of the Act's 

prohibitions against taking of endangered species to this fly was a 

proper exercise of Commerce Clause power to regulate: (1) use of 

channels of interstate commerce; and (2) activities substantially 

affecting interstate commerce because it prevented loss of biodiversity 

and destructive interstate competition. Judge Henderson upheld 

protection of the fly because doing so prevents harm to the development 

that is part of interstate commerce.

    We believe that the Federal government has the authority under the 

Property Clause of the Constitution to protect this species. While T. 

howellii ssp. spectabilis is not known to occur on Federal land, it is 

clear that the species is part of an ecosystem that includes Federal 

lands. Baker and Union counties contain a significant amount of Federal 

land administered by the U.S. Forest Service and the Bureau of Land 

Management. Native species such as mule deer range widely across these 

lands, and are known to graze on T. howellii ssp. spectabilis . The 

courts have long recognized Federal authority under the Property Clause 

to protect Federal resources in such circumstances. See, e.g., Kleppe 

v. New Mexico, 429 U.S. 873 (1976); United States v. Alford, 274 U.S. 

264 (1927); Camfield v. United States, 167 U.S. 518 (1897); United 

States v. Lindsey, 595 F.2d 5 (9th Cir. 1979).

    As for whether Federal listing of T. howellii ssp. spectabilis 

would confer more protection than is already provided under Oregon law, 

the inadequacy of the State law is discussed below in Section D of the 

``Summary of Factors Affecting the Species'' section of this rule.

Peer Review

    In accordance with interagency policy published on July 1, 1994 (59 

FR 34270), we solicited the expert opinions of three independent 

specialists regarding pertinent scientific or commercial data and 

assumptions relating to the taxonomy, population status, and supportive 

biological and ecological information for the taxon under consideration 

for listing. The purpose of such review is to ensure that listing 

decisions are based on scientifically sound data, assumptions, and 

analyses, including input of appropriate experts and specialists. Two 

scientists responded to our request for peer review of this listing 

action. Both responders provided information which supported the 

biological and ecological data presented in the proposed rule.

Summary of Factors Affecting the Species

    Section 4 of the Endangered Species Act (16 U.S.C. 1533) and 

regulations (50 CFR part 424) that implement the listing provisions of 

the Act established the procedures for adding species to the Federal 

lists. A species may be determined to be an endangered or threatened 

species due to one or more of the five factors described in section 

4(a)(1). These factors and their application to Thelypodium howellii 

ssp. spectabilis are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 

of Its Habitat or Range.

    Most of the habitat for T. howellii ssp. spectabilis has been 

modified or lost to urban and agricultural development. Habitat 

degradation at all remaining sites for this species is due to a 

combination of livestock grazing, agricultural conversion, hydrological 

modifications, and competition from non-native vegetation (see Factor 

E). These activities have resulted in the extirpation of T. howellii 

ssp. spectabilis from about half its former range in Baker, Union, and 

Malheur counties. Plants at the type locality in Malheur County are 

considered to be extirpated due to past agricultural development (Kagan 

1986, ONHP 1998). Since 1990, at least 40 percent of the sites sampled 

in North Powder that previously contained T. howellii ssp. spectabilis 

have been extirpated (A. Robinson, Service botanist, in litt. 1996). 

These sites were all located within areas subjected to grazing. 

Grazing, trampling, exotic species, and agricultural activities 

continue to threaten virtually all remaining habitat for this species 

(Table 1).

[[Page 28397]]

                                          Table 1.--Summary of Threats



        Site (Population)            (Acres)        Number plants           Ownership              Threats


Clover Creek.....................         15.9  300 (Kagan 1986)....  Private.............  Livestock grazing,

                                        (39.2)                                               herbicides.

North Powder 2 (North Powder)....          0.9  16,000 (Salzer, in    Private.............  Non-native

                                         (2.3)   litt. 1996).                                vegetation.

Miles easement (North Powder)....         16.8  Greater than 2,500    Private (conserv.     Livestock grazing,

                                        (41.4)   (Robinson, in litt.   easement).            hydrologic

                                                 1996).                                      modifications.

Hot Creek east of I-85 (North             0.24  12 (Kagan, pers.      Private (ODOT \1\)..  Naturally occurring

 Powder).                               (0.59)   comm., 1995).                               events.

Hot Creek North (North Powder)...         0.01  10 (Robinson, in      Private.............  Livestock grazing,

                                        (0.03)   litt. 1996).                                naturally occurring


Powder River (North Powder)......         0.03  100 (Robinson, in     Private (ODOT \1\)..  Livestock grazing.

                                        (0.07)   litt. 1996).

Haines rodeo (Haines)............          4.3  June 1998: 10,000;    Private (ODOT \1\)..  Urbanization,

                                        (10.6)   July 1998: 300 (E.                          mowing.

                                                 Rey-Vizgirdas, in

                                                 litt. 1998).

Haines water tower (Haines)......          0.4  200 to 300 (E. Rey-   Unknown (private)...  Urbanization.

                                         (1.0)   Vizgirdas, in litt.


Haines west (Haines).............          Not  Not available.......  Private.............  Urbanization, road

                                     available                                               construction,


Haines 4th and Olson (Haines)....          0.1  700 to 800 (E. Rey-   Private.............  Possibly extirpated

                                         (0.3)   Vizgirdas, in litt.                         (Brooks, in litt.

                                                 1998).                                      1998)

Baker City North.................         0.03  40 (Kagan, pers.      Private.............  Agricultural

                                        (0.08)   comm., 1995).                               conversion,


Pocahontas Road..................          0.7  250 to 300 (E. Rey-   Private.............  Livestock grazing,

                                         (1.8)   Vizgirdas, in litt.                         non-native

                                                 1998).                                      vegetation.


\1\ Oregon Department of Transportation Easement.

    Within the City of Haines, all remaining habitat containing T. 

howellii ssp. spectabilis is being impacted by residential 

construction, trampling, and other activities. In 1994, a large section 

of habitat formerly occupied by T. howellii ssp. spectabilis at the 

Haines rodeo grounds was destroyed when a parking lot was constructed. 

Although an estimated 5,000 to 10,000 T. howellii ssp. spectabilis 

plants were present at the Haines rodeo grounds in late June 1998, the 

majority of this population was subsequently impacted by the July 4 and 

5 rodeo; the site was apparently mowed and used as a parking area 

during the rodeo (E. Rey-Vizgirdas, in litt. 1998). Immediately after 

the rodeo, fewer than 300 T. howellii ssp. spectabilis plants were 

observed at the site. Most of these plants were found along the fence 

line adjacent to the main road (outside the rodeo grounds). It is 

possible that the T. howellii ssp. spectabilis population may recover 

from this disturbance. However, it is unlikely that the entire 

population was able to reproduce successfully prior to mowing since 

most plants were in full bloom (without mature fruits) in late June (E. 

Rey-Vizgirdas, in litt. 1998).

    T. howellii ssp. spectabilis habitat within a proposed racing area 

development project adjacent to the rodeo grounds, will likely be 

impacted by the proposed project. However, since no specific T. 

howellii ssp. spectabilis surveys have been completed for this project, 

it is unclear how many T. howellii ssp. spectabilis plants will be 


    Another T. howellii ssp. spectabilis site in Haines, which 

contained approximately 800 plants in June 1998 (E. Rey-Vizgirdas, in 

litt. 1998), apparently was subsequently extirpated by residential 

development (P. Brooks, in litt. 1998). Urbanization represents a major 

threat for this species within the city limits of Haines.

    Thelypodium howellii ssp. spectabilis is threatened by changes in 

hydrology related primarily to historic and current land uses such as 

agricultural conversion and flood control. Modifying the intensity and 

frequency of flooding events and soil moisture levels can significantly 

alter plant habitat suitability. If moisture levels stay high later in 

the spring or summer, species such as sedges and rushes will outcompete 

T. howellii ssp. spectabilis; if the soil becomes too saline, 

Distichlis will outgrow T. howellii ssp. spectabilis (Davis and Youtie 

1995). Irrigation practices in the vicinity of T. howellii ssp. 

spectabilis habitat tend to increase soil moisture levels and can also 

increase soil salinity (Davis and Youtie 1995), making the habitat less 

suitable for this plant. Hydrological modifications occurred in at 

least two sites containing this taxon in the vicinity of North Powder 

(Davis and Youtie 1995; Robinson, in litt. 1996). In addition, it is 

likely that natural hydrologic processes have been altered at all of 

the existing sites due to surrounding land uses including agriculture 

and residential/urban development.

B. Overutilization for Commercial, Recreational, Scientific, or 

Educational Purposes

    The plant is not a source for human food or of commercial 

horticulture interest. Therefore, this is not a factor considered in 

the listing decision at this time.

C. Disease or Predation

    Thelypodium howellii ssp. spectabilis is palatable to livestock 

(Kagan 1986, Davis and Youtie 1995). Cattle directly consume and 

trample individual plants (Kagan 1986). Native herbivores (e.g. deer 

(Odocoileus) and elk (Cervus)) likely consume T. howellii ssp. 

spectabilis plants; however, there is little evidence to suggest that 

herbivory by native ungulates currently poses a significant threat to 

this taxon (Kagan 1986).

    Livestock grazing can negatively impact habitat and contribute to 

reduced reproduction of this species (Kagan 1986). In particular, 

spring and early summer grazing adversely affects reproduction for T. 

howellii ssp. spectabilis by removing flowers and/or

[[Page 28398]]

fruits, and individual plants get trampled during the period of active 

growth (generally from May through July).

    In July 1995, Berta Youtie (plant ecologist, The Nature 

Conservancy) and Andrew Robinson (Service botanist, Oregon State 

Office) found that cattle had consumed all T. howellii ssp. spectabilis 

plants that were present within a pasture at Clover Creek; plants were 

only observed in an adjacent area that was not subject to grazing. The 

Clover Creek site (15.9 ha (39.2 ac)) supports the second largest 

remaining plant habitat area.

    At another site intentionally not grazed for the last five years, 

T. howellii ssp. spectabilis plants have expanded into areas previously 

unoccupied. Areas that were previously heavily grazed now contain 

higher densities and larger plants than marginal refugia habitat 

beneath Sarcobatus (Robinson, in litt. 1996). However, this site, while 

under a permanent conservation easement, has been subjected to trespass 

grazing on at least two occasions during the past three years (A. 

Robinson, pers. comm., 1997).

D. The Inadequacy of Existing Regulatory Mechanisms

    Thelypodium howellii ssp. spectabilis is listed as endangered by 

the State of Oregon (Oregon Department of Agriculture). However, the 

State Endangered Species Act does not provide protection for species on 

private land. Therefore, under State law, in such cases, any plant 

protection is at the discretion of the landowner.

    The Oregon Department of Transportation (ODOT) currently considers 

potential impacts to T. howellii ssp. spectabilis in their road 

maintenance activities where it occurs at three sites that are 

partially within ODOT rights-of-way. However, two of these sites are 

less than 0.4 ha (1 ac) in size, and the third site (at Haines rodeo 

ground) is threatened by activities that are not controlled by ODOT.

    Thelypodium howellii ssp. spectabilis could potentially be affected 

by projects requiring a permit under section 404 of the Clean Water 

Act. Under section 404, the U.S. Army Corps of Engineers (Corps) 

regulates the discharge of fill material into waters of the United 

States including navigable and isolated water bodies, headwaters, and 

adjacent wetlands. Section 404 regulations require applicants to obtain 

an individual permit to place fill for projects affecting greater than 

4 ha (10 ac) of waters of the U.S. Projects can qualify for 

authorization under Nationwide Permit 26 (NWP 26) if the discharge does 

not cause the loss of more than three acres of waters of the U.S. nor 

cause the loss of waters of the U.S. for a distance greater than 500 

linear feet of stream bed. Projects that qualify for authorization 

under NWP 26 may proceed without prior notification to the Corps if the 

discharge would cause the loss of less than \1/3\ of an acre of waters 

of the U.S. (33 CFR 330. App. A 26b.). Evaluation of impacts of such 

projects by the resource agencies through the section 404 process is 

thus not an option. Corps Division and District Engineers may require 

that an individual section 404 permit be obtained if projects otherwise 

qualifying under NWP 26 would cause greater than minimal individual or 

cumulative environmental impacts. Corps regulations implementing the 

Clean Water Act require withholding authorization under NWP 26 if the 

existence of a listed endangered or threatened species would be 

jeopardized, regardless of the significance of the affected wetland 

resources (33 CFR 330.4 (f)).

    The Oregon Department of Fish and Wildlife (ODFW) was previously 

designated as the easement manager of a wildlife area that contains 

Thelypodium howellii ssp. spectabilis (Conservation Easement 1991). The 

conservation easement was established by the Farm Services Agency to 

protect a large wetland complex and related resources. However, a 

preliminary draft management plan (ODFW 1996) for this site does not 

adequately provide for the long-term maintenance of the plant and ODFW 

is withdrawing as easement manager (J. Lauman, ODFW, in litt. 1996; M. 

Smith, Service biologist, Oregon State Office, pers. comm. 1998). A new 

easement manager for the site has not been designated. Development of a 

final management plan for the site, which may better address concerns 

regarding the viability of this species (e.g., potential hydrological 

modifications of existing habitat), has not yet been initiated. In 

addition, although this site is under a conservation easement, trespass 

grazing by cattle has occurred on at least two occasions in the last 

three years and continues to threaten T. howellii ssp. spectabilis 

habitat onsite.

    One T. howellii ssp. spectabilis site had a plant protection 

agreement between the landowner and The Nature Conservancy. However, 

the agreement has expired and the amount of occupied habitat (less than 

0.5 ha (1 ac)) onsite is not expected to provide for the long-term 

viability of the species in the absence of intensive management (B. 

Youtie, The Nature Conservancy, pers. comm., 1998).

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Mowing of T. howellii ssp. spectabilis habitat at the Haines rodeo 

ground typically occurs annually, and can impact this species if 

performed during the growing season prior to seed set. Historically, 

annual rodeos were held in July; however, in 1995 an additional spring 

rodeo was held in May. Mowing to prepare for the spring rodeo occurs 

prior to seed set, and if this practice continues it will adversely 

affect reproduction of the plant. In some cases, mowing of T. howellii 

ssp. spectabilis habitat for the July rodeo can reduce reproduction if 

it occurs prior to seed set (see Factor A of this section). The Haines 

rodeo ground currently supports the third largest habitat area for T. 

howellii ssp. spectabilis.

    Competition from nonnative plant species including Dipsacus 

sylvestris (teasel), Cirsium vulgare (bull thistle), C. canadensis 

(Canada thistle), and Melilotus officinalis (yellow sweet clover) also 

threatens the long-term survival of Thelypodium howellii ssp. 

spectabilis (Davis and Youtie 1995). The rapid expansion of D. 

sylvestris is considered a significant threat to this species (Larkin 

and Salzer 1992). At several sites, the formerly mesic meadow 

communities containing Sarcobatus (greasewood) and T. howellii ssp. 

spectabilis have largely been replaced by nonnative species.

    At least two sites containing T. howellii ssp. spectabilis are 

directly adjacent to fields where crops such as wheat and barley are 

produced. The use of dicot-specific herbicides in these areas threatens 

T. howellii ssp. spectabilis when overspraying occurs (J. Kagan, plant 

ecologist, Oregon Natural Heritage Program, pers. comm., 1997). One of 

these sites (Clover Creek) currently contains the second largest 

habitat area for this species.

    Because most populations of this species are small and existing 

habitat is fragmented by agricultural conversion, grazing, roads and 

urbanization, naturally occurring events, such as drought, represent 

threats to the continued existence of this species. Of the 11 sites for 

this species, 6 (50 percent) are 0.4 ha (1 ac) or less. Only 3 sites 

are larger than 4 ha (10 ac). Small, isolated parcels are vulnerable to 

edge effects (i.e., invasion by exotic plant species, disturbances by 

local residents) and are unlikely to contribute significantly to the 

long-term preservation of this species.

    Livestock grazing tends to fragment T. howellii ssp. spectabilis 

populations by reducing the density of plants in

[[Page 28399]]

openings, and restricting individuals to protected sites (e.g., beneath 

Sarcobatus plants or spiny shrubs) (Kagan 1986, Robinson, in litt. 

1996). Such habitat fragmentation also severely restricts the potential 

for plant population expansion. Most known populations of T. howellii 

ssp. spectabilis contain a low number of individual plants and are 

limited geographically so that future survival may depend on recovery 

actions such as restoring degraded habitat areas and removing competing 

nonnative vegetation.

    We have carefully assessed the best scientific and commercial 

information available regarding the past, present, and future threats 

faced by this species in determining to issue this final rule. Most of 

the remaining sites that support T. howellii ssp. spectabilis are small 

and fragmented, and all existing sites are vulnerable to impacts from 

grazing, trampling, and non-native vegetation in addition to urban and 

agricultural development. One site is under a permanent conservation 

easement, although management of this site has not been completely 

effective at maintaining T. howellii ssp. spectabilis habitat in the 

past. We are currently working to better address management of the 

plant habitat at this site, which will include construction of fencing 

to protect habitat from livestock grazing and to assist in noxious weed 


    We have determined that listing as threatened rather than 

endangered is appropriate for this species primarily because we believe 

that grazing can be managed in a manner that will not adversely affect 

habitat for T. howellii ssp. spectabilis, and the site containing the 

largest habitat area for this taxon is subject to a permanent 

conservation easement. In addition, the State and local weed management 

agencies have initiated measures that afford some protection to T. 

howellii ssp. spectabilis, such as identifying areas to be avoided by 

herbicide application, and placing signs in the area. Based on this 

evaluation, the preferred action is to list T. howellii ssp. 

spectabilis as threatened. Alternatives to this action were considered 

but not preferred because not listing this species would not provide 

adequate protection and would not be consistent with the Act. In 

addition, listing this species as endangered would not be appropriate 

because the State of Oregon and local management agencies have 

decreased the danger of extinction of T. howellii ssp. spectabilis at 

the present time. However, if population declines continue and threats 

are not adequately addressed, this species could be threatened with 

extinction in the foreseeable future. For reasons discussed below, 

critical habitat is not being proposed at this time.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as (i) the 

specific areas within the geographical area occupied by a species, at 

the time it is listed in accordance with the Act, on which are found 

those physical or biological features (I) essential to the conservation 

of the species and (II) that may require special management 

considerations or protection; and (ii) specific areas outside the 

geographical area occupied by the species at the time it is listed, 

upon determination that such areas are essential for the conservation 

of the species. ``Conservation'' means the use of all methods and 

procedures needed to bring the species to the point at which listing 

under the Act is no longer necessary.

    Section 4(a)(3) of the Act, as amended, and implementing 

regulations (50 CFR 424.12) require that, to the maximum extent prudent 

and determinable, the Secretary designate critical habitat at the time 

the species is listed as endangered or threatened. Service regulations 

(50 (CFR 424.12 (a)(1)) state that designation of critical habitat is 

not prudent when one or both of the following situations exist--(1) the 

species is threatened by taking or other human activity, and 

identification of critical habitat can be expected to increase the 

degree of threat to the species, or (2) such designation of critical 

habitat would not be beneficial to the species.

    Section 7(a)(2) of the Act requires Federal agencies to consult 

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 requirement that Federal agencies 

refrain from contributing to the destruction or adverse modification of 

critical habitat in any action authorized, funded or carried out by 

such agency (agency action) is in addition to the section 7 prohibition 

against jeopardizing the continued existence of a listed species, and 

it is the only mandatory legal consequence of a critical habitat 

designation. The Service's implementing regulations (50 CFR part 402) 

define ``jeopardize the continuing existence of'' and ``destruction or 

adverse modification of'' in very similar terms. To jeopardize the 

continuing existence of a species means to engage in an action ``that 

reasonably would be expected to reduce appreciably the likelihood of 

both the survival and recovery of a listed species.'' Destruction or 

adverse modification of habitat means an ``alteration that appreciably 

diminishes the value of critical habitat for both the survival and 

recovery of a listed species in the wild by reducing the reproduction, 

numbers, or distribution of that species.''

    Common to both definitions is an appreciable detrimental effect to 

both the survival and recovery of a listed species. An action that 

appreciably diminishes habitat for recovery and survival may also 

jeopardize the continued existence of the species by reducing 

reproduction, numbers, or distribution because negative impacts to such 

habitat may reduce population numbers, decrease reproductive success, 

or alter species distribution through habitat fragmentation.

    For a listed plant species, an analysis to determine jeopardy under 

section 7(a)(2) would take into consideration the loss of the species 

associated with habitat impacts. Such an analysis would closely 

parallel an analysis of habitat impacts conducted to determine adverse 

modification of critical habitat. As a result, an action that results 

in adverse modification also would almost certainly jeopardize the 

continued existence of the species concerned. Because habitat 

degradation and destruction is the primary threat to Thelypodium 

howellii ssp. spectabilis, listing it 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 this 

species. In many cases, listing also ensures that Federal agencies 

consult with the Service even when Federal actions may affect 

unoccupied suitable habitat where such habitat is essential to the 

survival and recovery of the species. This is especially important for 

plant species where consideration must be given to the seed bank 

component of the species, which are not necessarily visible in the 

habitat throughout the year. A significant portion of their vegetative 

structure may not be in evidence during cursory surveys; occupancy of 

suitable habitat can only be reliably determined during the growing 

season. In practice, we consult with Federal agencies proposing 

projects in areas where the species was known to recently occur or to 

harbor known seed banks.

    Apart from section 7, the Act provides no 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

[[Page 28400]]

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 for Thelypodium howellii ssp. 

spectabilis is not prudent because it would provide no additional 

benefit on non-Federal lands beyond that provided by listing. T. 

howellii ssp. spectabilis is known to occur only on private lands. 

Critical habitat designation provides protection on non-Federal lands 

or private lands only when there is Federal involvement through 

authorization or funding of, or participation in, a project or activity 

(Federal nexus). In other words, designation of critical habitat on 

non-Federal lands does not compel or require the private or other non-

Federal landowner to undertake active management for the species or to 

modify any activities in the absence of a Federal nexus. Because all 

known occurrences of this plant are on private land, activities 

constituting threats to the species (see ``Summary of Factors Affecting 

the Species''), including grazing, agricultural and urban development, 

alterations of wetland hydrology, and competition from non-native 

vegetation, are generally not subject to section 7 consultation. Any 

Federal involvement, if it does occur, will be addressed regardless of 

whether critical habitat is designated because interagency coordination 

requirements such as the Fish and Wildlife Coordination Act and section 

7 of the Act are already in place. When T. howellii ssp. spectabilis is 

listed, activities occurring on all lands subject to Federal 

jurisdiction that may adversely affect these species would prompt the 

requirement for section 7 consultation, regardless of whether critical 

habitat has been designated. Although there may occasionally be a 

Federal nexus for T. howellii ssp. spectabilis through regulation of 

wetland fill and removal activities regulated by the U.S. Corps through 

section 404 of under the Clean Water Act, the designation of critical 

habitat for this plant would provide no benefit beyond that provided by 

listing. For example, the plant is restricted to 11 known sites (seven 

less than an acre in size) in unique, moist, alkaline meadow habitat 

located in valley bottoms, and any action that would adversely modify 

habitat at these sites also would jeopardize the continued existence of 

the species, because the biological threshold for triggering either 

determination would be the same. In view of the limited habitat for 

this species, the loss of any of the 11 sites resulting from Corps 

regulated wetland fill activities would likely result in a jeopardy 

determination. Thus, in this case, the prohibition on adverse 

modification would provide no benefit beyond that provided by the 

prohibition on jeopardy. The designation of critical habitat, 

therefore, would not provide additional benefit for the species.

    While a designation of critical habitat on private lands would only 

affect actions where a Federal nexus is present and would not confer 

any additional benefit beyond that already provided by section 7 

consultation; and because virtually any action that would result in an 

adverse modification determination would also likely jeopardize the 

species, a designation of critical habitat on private lands could 

result in a detriment to the species. This is because the limited 

effect of a critical habitat designation on private lands is often 

misunderstood by private landowners whose property boundaries could be 

included within a general description of critical habitat for a 

specific species. Landowners may mistakenly believe that critical 

habitat designation will be an obstacle to land use and development and 

impose restrictions on their use of their property. In some cases, 

members of the public may believe critical habitat designation to be an 

attempt on the part of the government to confiscate their private 

property. Unfortunately, inaccurate and misleading statements reported 

through widely popular media available worldwide are the types of 

misinformation that can and have led private landowners to believe that 

critical habitat designations prohibit them from making private use of 

their land when, in fact, they face potential constraints only if they 

need a Federal permit or receive Federal funding to conduct specific 

activities on their lands, such as filling in wetlands. These types of 

misunderstandings, and the fear and mistrust they create among 

potentially affected landowners, makes it very difficult for us to 

cultivate meaningful working relationships with such landowners and to 

encourage voluntary participation in species conservation and recovery 

activities. Without the willing participation of landowners in the 

recovery process, we will find it very difficult to recover T. howellii 

ssp. spectabilis on the private lands where the only known populations 


    We are currently working with involved agencies and landowners to 

periodically survey and monitor T. howellii ssp. spectabilis 

populations and develop plant management strategies. We have notified 

all involved parties and landowners of the importance of protecting the 

habitat of the remaining populations of T. howellii ssp. spectabilis, 

and plant protection agreements for some sites are in place. The 

livestock grazing threat is being addressed by working directly with 

landowners to adjust seasonal use and through fence construction to 

limit livestock trespass. The plant is palatable to livestock, and 

grazing occurring from April through July can be detrimental to annual 

seed production; grazing at other times of the year has little direct 

effect (Davis and Youtie 1995). Altered grazing practices can only be 

achieved through voluntary efforts of landowners; designation of 

critical habitat would not change grazing practices.

    In addition to cooperative efforts between us and landowners, other 

governmental agencies offer opportunities to protect T. howellii ssp. 

spectabilis. All known locations of T. howellii ssp. spectabilis along 

road sides have been inconspicuously marked so Oregon State Highway 

Department crews can avoid destruction of plants during highway 

maintenance activities (A. Robinson, pers. comm. 1997). The U.S. 

Department of Agriculture, through its Wildlife Habitat Incentive 

Program offers funding to landowners which can be used to protect 

endangered plants, including T. howellii ssp. spectabilis (62 FR 

49357). In view of ongoing actions and the lack of benefit provided by 

designation of critical habitat on non-Federal lands, we believe that 

conservation and protection of this plant will be accomplished more 

effectively through procedures other than critical habitat designation.

    A designation of critical habitat for T. howellii ssp. spectabilis 

on private lands could inadvertently encourage habitat destruction by 

private landowners wishing to rid themselves of the perceived 

endangered species problem. Listed plants have limited protection under 

the Act, particularly on private lands. Section 9(a)(2) of the Act, 

implemented by regulations at 50 CFR section 17.61 (endangered plants) 

and 50 CFR 17.71 (threatened plants) only prohibits (1) removal and 

reduction of listed plant species to possession from areas under 

Federal jurisdiction, or their malicious damage or destruction on areas 

under Federal jurisdiction; or (2) removal, cutting, digging up, or 

damaging or destroying any such species in knowing violation of any 

State law or regulation, including State criminal trespass laws. 

Generally, on private lands, collection of, or vandalism to, listed 

plants must occur

[[Page 28401]]

in violation of State law to be a violation of section 9. The Oregon 

Endangered Species Act does not protect listed plants on private lands. 

Thus, a private landowner concerned about perceived land management 

conflicts resulting from a critical habitat designation covering his 

property would likely face no legal consequences if the landowner 

removed the listed species or destroyed its habitat. The designation of 

critical habitat involves the publication of habitat descriptions and 

mapped locations of the species in the Federal Register, increasing the 

likelihood of unwanted notice by potential search and removal 

activities at specific sites.

    We acknowledge that in some situations critical habitat designation 

may provide some value to the species by notifying the public about 

areas important for the species conservation and calling attention to 

those areas in special need of protection. However, in this case, the 

few existing sites containing T. howellii ssp. spectabilis are already 

known by the affected private landowners. When this limited public 

notification benefit is weighed against the detriment to plant species 

associated with the widespread misunderstanding about the effects of 

such designation on private landowners and the environment of mistrust 

and fear that such misunderstandings can create, we conclude that the 

detriment to the species from a critical habitat designation covering 

non-federal lands outweighs the educational benefit of such designation 

and that such designation is therefore not prudent. The information and 

notification process can more effectively be accomplished by working 

directly with landowners and communities during the recovery planning 

process and by the section 7 consultation and coordination where the 

Federal nexus exists. The use of these existing processes will impart 

the same knowledge to the landowners that critical habitat designation 

would, but without the confusion and misunderstandings that may 

accompany a critical habitat designation.

    Although this biennial plant is not of horticultural interest, the 

listing in and of itself may contribute to an increased risk from over-

collection. Simply listing a species can precipitate commercial or 

scientific interest and activities, both legal and illegal, which can 

threaten the species through unauthorized and uncontrolled collection 

for both commercial and scientific purposes. The listing of species as 

endangered or threatened publicizes their rarity and may make them more 

susceptible to collection by researchers or curiosity seekers (Mariah 

Steenson pers. comm. 1997, M. Bosch, U.S. Forest Service in litt. 

1997). Disseminating specific, sensitive locations can encourage plant 

poaching (M. Bosch, U.S. Forest Service, pers. comm., 1997). For 

example, the Service designated critical habitat for the mountain 

golden heather (Hudsonia montana), a small shrub not previously known 

to be commercially valuable or particularly susceptible to collection 

or vandalism. After the critical habitat designation was published in 

the Federal Register, unknown persons visited a Forest Service 

wilderness area in North Carolina where the plants occurred and, with a 

recently published newspaper article and maps of the plant's critical 

habitat designation in hand, asked about the location of the plants. 

Several plants we had been monitoring were later found to be missing 

from unmarked Service study plots (Nora Murdock, U.S. Fish and Wildlife 

Service, pers. comm. 1998). Designating critical habitat, including the 

required disclosure of precise maps and descriptions of critical 

habitat, would further advertise the rarity of T. howellii ssp. 

spectabilis and provide a road map to occupied sites causing even 

greater threat to the species from vandalism, trampling, or 

unauthorized collection (M. Steenson, Portland Nursery Inc., pers. 

comm., 1997). Easily accessible roadside populations with few 

individuals would be particularly susceptible to indiscriminate 

collection by persons interested in rare plants. Plants, unlike most 

animal species protected under the Act, are particularly vulnerable to 

collection because of their inability to escape when sought by 


    In conclusion, we have weighed the lack of overall benefit of 

critical habitat designation beyond that provided by virtue of being 

listed as threatened or endangered along with the limited benefit of 

public notification against the detrimental effects of the negative 

public response and misunderstanding of what critical habitat 

designation means and the increased threats of illegal collection and 

vandalism, and have concluded that critical habitat designation is not 

prudent for T. howellii ssp. spectabilis.

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 public awareness and 

results in conservation actions by Federal, State and private agencies, 

groups, and individuals. The Act provides for possible land acquisition 

and cooperation with the states and requires that recovery actions be 

carried out for all listed species. The protection required of Federal 

agencies and the prohibitions against certain activities involving 

listed plants are discussed, in part, below.

    Section 7(a) of the Act 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 designated. Regulations implementing this interagency 

cooperation provision of the Act are codified at 50 CFR part 402. 

Section 7(a)(4) of the Act requires Federal agencies to confer with us 

on any action that is likely to jeopardize the continued existence of a 

proposed species or result in destruction or adverse modification of 

proposed critical habitat. If a species is listed subsequently, section 

7(a)(2) requires Federal agencies to ensure that activities they 

authorize, fund, or carry out are not likely to jeopardize the 

continued existence of such a species or to destroy or adversely modify 

its critical habitat. If a Federal action may affect a listed species 

or its critical habitat, the responsible Federal agency must enter into 

formal consultation with us.

    Federal agencies that may have involvement with Thelypodium 

howellii ssp. spectabilis through section 7 include the Corps and the 

Environmental Protection Agency through their permit authority under 

section 404 of the Clean Water Act. The Federal Housing Administration 

and Farm Services Agency may be affected through potential funding of 

housing and farm loans where this species or its habitat occurs. 

Highway construction and maintenance projects that receive funding from 

the Department of Transportation (Federal Highways Administration) will 

also be subject to review under section 7 of the Act.

    The Act and its implementing regulations set forth a series of 

general prohibitions and exceptions that apply to all threatened 

plants. All prohibitions of section 9(a)(2) of the Act, implemented by 

50 CFR 17.71 for threatened plants, apply. These prohibitions, with 

respect to any endangered or threatened species of plants, in part, 

make it illegal for any person subject to the jurisdiction of the 

United States to import or export, transport or ship 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

[[Page 28402]]

reduce to possession from areas under Federal jurisdiction. Seeds from 

cultivated specimens of threatened plant taxa also are exempt from 

these prohibitions provided that a statement ``Of Cultivated Origin'' 

appears on the shipping containers. Certain exceptions apply to agents 

of the Service and State conservation agencies.

    The Act and 50 CFR 17.72 also provide for the issuance of permits 

to carry out otherwise prohibited activities involving threatened plant 

species under certain circumstances. Such permits are available for 

scientific purposes and to enhance the propagation or survival of the 

species. For threatened plants, permits also are available for 

botanical or horticultural exhibition, educational purposes, or special 

purposes consistent with the purposes of the Act. We anticipate few 

trade permits would ever be sought or issued for the species because 

the plant is not common in cultivation or in the wild.

    It is the policy of the Service, published in the Federal Register 

on July 1, 1994 (59 FR 34272), to identify, to the maximum extent 

practicable at the time a species is listed, those activities that 

would or would not constitute a violation of section 9 of the Act. The 

intent of this policy is to increase public awareness of the effects of 

the listing on proposed and ongoing activities within the species' 

range. Collection, damage or destruction of this species on Federal 

land is prohibited, although in appropriate cases a Federal permit 

could be issued to allow collection for scientific or recovery 

purposes. However, T. howellii ssp. spectabilis is not known to occur 

on public (Federal) lands. We believe that, based upon the best 

available information, the following actions will not result in a 

violation of section 9, provided these activities are carried out in 

accordance with existing regulations and permit requirements:

    (1) Activities authorized, funded, or carried out by Federal 

agencies (if the species were found on Federal lands), (e.g., grazing 

management, agricultural conversions, wetland and riparian habitat 

modification, flood and erosion control, residential development, 

recreational trail development, road construction, hazardous material 

containment and cleanup activities, prescribed burns, pesticide/

herbicide application, pipelines or utility lines crossing suitable 

habitat,) when such activity is conducted in accordance with any 

reasonable and prudent measures given by the Service in a consultation 

conducted under section 7 of the Act;

    (2) Casual, dispersed human activities on foot or horseback (e.g., 

bird watching, sightseeing, photography, camping, hiking);

    (3) Activities on private lands that do not require Federal 

authorization and do not involve Federal funding, such as grazing 

management, agricultural conversions, flood and erosion control, 

residential development, road construction, and pesticide/herbicide 

application when consistent with label restrictions;

    (4) Residential landscape maintenance, including the clearing of 

vegetation around one's personal residence as a fire break.

    We believe that the following might potentially result in a 

violation of section 9; however, possible violations are not limited to 

these actions alone:

    (1) Unauthorized collecting of the species on Federal lands (if the 

species were to occur on Federal lands);

    (2) Application of pesticides/herbicides in violation of label 


    (3) Interstate or foreign commerce and import/export without 

previously obtaining an appropriate permit. Permits to conduct 

activities are available for purposes of scientific research and 

enhancement of propagation or survival of the species.

    Questions regarding whether specific activities may constitute a 

violation of section 9 should be directed to the Field Supervisor of 

the Snake River Basin Office (see ADDRESSES section). Requests for 

copies of the regulations on listed plants and inquiries regarding them 

may be addressed to the U.S. Fish and Wildlife Service, Ecological 

Services, Permits Branch, 911 NE 11th Ave., Portland, Oregon 97232-4181 


National Environmental Policy Act

    The Service has determined that an Environmental Assessment, 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, as amended. A 

notice outlining our reasons for this determination was published in 

the Federal Register on October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

    This rule does not contain any information collection requirements 

for which the Office of Management and Budget (OMB) approval under the 

Paperwork reduction Act, 44 U.S.C. 3501 et seq. is required. An 

information collection related to the rule pertaining to permits for 

endangered and threatened species has OMB approval and is assigned 

clearance number 1018-0094. This rule does not alter that information 

collection requirement. For additional information concerning permits 

and associated requirements for threatened species, see 50 CFR 17.32.

References Cited

Al-Shehbaz, I.A. 1973. The biosystematics of the genus Thelypodium. 

Contr. Gray Herb. 204(93):115-117.

Antell, K.S. 1990. Howell's thelypody: a rare biennial mustard from 

Oregon. Biology Department, Eastern Oregon State College, LaGrande, 


Conservation Easement. 1991. Miles Wetland Property, located in 

North Powder, Oregon.

Davis, J.S. and B. Youtie. 1995. Site information and analysis: 

North Powder Thelypodium howellii ssp. spectabilis preserve. 

Prepared for The Nature Conservancy, Oregon Field Office, Portland, 


Greenleaf, J. 1980. Status report for Thelypodium howellii Wats ssp. 

spectabilis (Peck) Al-Shehbaz.

Kagan, J.S. 1986. Status report for Thelypodium howellii ssp. 

spectabilis. Oregon Natural Heritage Data Base, Portland, Oregon.

Larkin, G. and D. Salzer. 1992. A plant demography study of 

Delphinium leucocephalum, Thelypodium howellii ssp. spectabilis, 

Astragalus applegatei, and Lilium occidentale: preliminary report 

1990-1991. Prepared for The Nature Conservancy, Oregon Field Office, 

Portland, Oregon.

Oregon Department of Fish and Wildlife (ODFW). 1996. Miles wetlands 

five-year action plan: 1997-2002. Prepared for the U.S. Fish and 

Wildlife Service.

Oregon Natural Heritage Program (ONHP). 1998. Element occurrence 

records for Thelypodium howellii ssp. spectabilis.

Peck, M. 1932. New species from Oregon. Torreya 32:150.

Whitson, T.D., L.C. Burrill, S.A. Dewey, D.W. Cudney, B.E. Nelson, 

R.D. Lee, R. Parker. 1996. Weeds of the West, 5th edition. Published 

by the University of Wyoming and the Western Society of Weed 

Science, Newark, California.

    Author. The primary author of this final rule is Edna Rey-

Vizgirdas, U.S. Fish and Wildlife Service, Snake River Basin Office 

(see ADDRESSES section); telephone 208/378-5243.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 

recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, amend part 17, subchapter B of chapter I, title 50 of 

the Code of Federal Regulations as set forth below:

[[Page 28403]]


    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 17.12(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) * * *



--------------------------------------------------------    Historic range        Family name          Status      When listed    Critical     Special

         Scientific name                Common name                                                                               habitat       rules


                 *                  *                  *                    *                    *                  *                  *

         Flowering Plants

                 *                  *                  *                    *                    *                  *                  *

Thelypodium howellii ssp.          Howell's spectacular  U.S.A. (OR)........  Brassicaceae         T                       662           NA           NA

 spectabilis.                       thelypody.                                 mustard.


    Dated: April 28, 1999.

Jamie Rappaport Clark,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 99-13249 Filed 5-25-99; 8:45 am]