
[Federal Register: October 18, 1996 (Volume 61, Number 203)]
[Rules and Regulations]               
[Page 54346-54358]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18oc96-11]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC47

 
Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Status for Four Plants and Threatened Status for One Plant 
From the Central Sierran Foothills of California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Fish and Wildlife Service (Service) determines 
endangered status pursuant to the Endangered Species Act of 1973, as 
amended (Act) for four plants--Calystegia stebbinsii (Stebbins' 
morning-glory), Ceanothus roderickii (Pine Hill ceanothus), 
Fremontodendron californicum ssp. decumbens (Pine Hill flannelbush), 
and Galium californicum ssp. sierrae (El Dorado bedstraw). The Service 
also determines threatened status for Senecio layneae (Layne's 
butterweed). These species all occur on gabbroic or serpentine-derived 
soils in the central Sierran foothills of California within chaparral 
or oak woodland communities. Urbanization and the ensuing habitat 
fragmentation, road construction and maintenance, herbicide spraying, 
change in fire frequency, off-road vehicle use, unauthorized dumping, 
horse overgrazing, competition from invasive alien vegetation, and 
mining imperil these five species. This rule implements Federal 
protection and recovery provisions afforded by the Act for these five 
plants.

EFFECTIVE DATE: November 18, 1996.

ADDRESSES: The complete file for this rule is available for public 
inspection, by appointment, during normal business hours at the 
Sacramento Field Office, U.S. Fish and Wildlife Service, 3310 El Camino 
Avenue, Sacramento, California 95825.

FOR FURTHER INFORMATION CONTACT: Kirsten Tarp, Sacramento Field Office 
(see ADDRESSES section) (telephone 916/979-2122; facsimile 916/979-
2128).

SUPPLEMENTARY INFORMATION:

Background

    Calystegia stebbinsii (Stebbins' morning-glory), Ceanothus 
roderickii (Pine Hill ceanothus), Fremontodendron californicum ssp. 
decumbens (Pine Hill flannelbush), Galium californicum ssp. sierrae (El 
Dorado bedstraw), and Senecio layneae (Layne's butterweed) occur 
primarily on the Pine Hill intrusion, an area of approximately 10,400 
hectares (ha) (25,700 acres (ac)), in western El Dorado County, 
California, ranging in elevation from 138 to 628 meters (m) (453 to 
2,060 feet (ft)). In addition, C. stebbinsii and S. layneae have a few 
known isolated occurrences in El Dorado, Nevada, and/or Tuolumne 
counties, California. All of the species included in this final rule 
exhibit substrate preferences. Ceanothus roderickii, F. californicum 
ssp. decumbens, and G. californicum ssp. sierrae are endemic to gabbro-
derived soils on the Pine Hill intrusion, and C. stebbinsii and S. 
layneae occur on gabbro and serpentine-derived soils. One known 
occurrence of S. layneae was found on metamorphic-derived soils.
    Gabbro-derived soils originate from mafic rocks (gabbrodiorite) 
that are mildly acidic, are rich in iron and magnesium, and often 
contain other heavy metals such as chromium (Wilson 1986). Gabbro, a 
dark large-crystalled rock, is formed when liquid magma cools slowly 
underground. A red soil is

[[Page 54347]]

formed when the rock is exposed and weathers at the earth's surface 
(EIP Associates 1991). These soils are well-drained and are underlain 
by gabbrodiorite rocks at a depth of more than 1 meter (3.28 feet) 
(U.S. Department of Agriculture, Soil Conservation Service 1974).
    Serpentine-derived soils are formed through a process similar to 
formation of gabbro-derived soils. Serpentine soils are derived from 
ultramafic rocks (e.g., serpentinite, dunite, and peridotite). They 
tend to have high concentrations of magnesium, chromium, and nickel, 
and low concentrations of calcium, nitrogen, potassium, and phosphorus 
(Kruckeberg 1984). ``Gabbro soils are considered to be edaphically 
similar to serpentine because of their mineral composition and because 
they appear to influence plant distributions in much the same way'' 
(Wilson 1986).
    The three plant communities occurring on the Pine Hill intrusion 
are chaparral, oak woodland, and savanna. The vegetation type of this 
area is distinctive enough that Robert Holland (1986), based upon 
Wilson (1986), designated a community known as gabbro-derived northern 
mixed chaparral. This community is characterized by being ``edaphically 
restricted to ultramafic gabbro in a mixed chaparral which is dominated 
by Adenostoma fasiculatum (chamise), and usually occurring on rather 
xeric exposures'' (Holland 1986). Calystegia stebbinsii, Ceanothus 
roderickii, Fremontodendron californicum ssp. decumbens, and Senecio 
layneae occur in fire-dependent chaparral habitat; F. californicum ssp. 
decumbens and S. layneae also occur in the ecotone between chaparral 
and oak woodland; Galium californicum ssp. sierrae and S. layneae occur 
in oak woodland (Wilson 1986). None of the plants in this rule occur 
within savanna, which makes up approximately 27 percent of the 
vegetation on the Pine Hill intrusion.
    Loss of habitat, fragmentation, and alteration of natural ecosystem 
processes have resulted from residential and commercial development. 
Housing and commercial development, road maintenance, grading, change 
in fire frequency, unauthorized dumping, off-road vehicle use, 
overgrazing practices, herbicide spraying, mining, competition from 
invasive alien vegetation, and other human-caused conditions threaten 
the remaining occurrences of these plants.
    These plants occur within a fire-adapted plant community, either 
within chaparral or on the ecotone between chaparral and woodland. 
Change in fire frequency alters the natural processes within several 
plant communities in California. Historically, fire occurred in 
chaparral on the average of 3 to 5 times every 100 years (Boyd 1985). 
Fire is important for seed germination and seedling reestablishment by 
eliminating competition and shading, as well as replenishing nutrients 
to the soil. Without periodic fires, the previously mentioned plants 
either do not reproduce by seed or may become shaded by other plants.

Discussion of the Five Species

    G. Ledyard Stebbins collected the type specimen of Calystegia 
stebbinsii in 1970, 17 kilometers (km) (10 miles (mi)) west of 
Placerville in El Dorado County, California. Richard K. Brummitt (1974) 
described the species using specimens collected by Stebbins as the 
type.
    Calystegia stebbinsii is a leafy perennial herb in the morning-
glory family (Convolvulaceae). Its stems range up to 1 m (3.28 ft) in 
length and generally lie flat on the ground. The leaves are palmately 
lobed with the two outermost lobes being divided again. The leaf lobes 
are narrow and lance-shaped. White flowers, which appear in May through 
June, are on stalks 3 to 13 cm (1 to 5 in) long and bear two leaf-like 
bracts. The fruit is a slender capsule. Its distinctively shaped 
leaves, each having 7 to 9 narrow lance-shaped lobes, distinguish C. 
stebbinsii from other California morning-glories.
    Calystegia stebbinsii occurs in two localized areas. Most 
occurrences of C. stebbinsii are discontinuously scattered within two 
population centers in the northern and southern portions of the Pine 
Hill intrusion. Calystegia stebbinsii does not occur at the center of 
the intrusion on Pine Hill. It recently was discovered in Nevada County 
near the County landfill, where it was sparsely scattered over a 
distance of 6.5 km (3.5 mi) (California Diversity Database (CNDDB) 
1994). In El Dorado County, the species is associated with chaparral on 
gabbro-derived soils. In Nevada County it occurs on serpentine. The 
species may have been transplanted from El Dorado County by the 
transport of soil to the Nevada County Sanitary Landfill (Carla 
DeCrona, California Department of Fish and Game (CDFG), pers. comm. 
1992; The Union 1991). Calystegia stebbinsii occurs primarily on 
privately owned land, although, the Bureau of Land Management (BLM) 
manages land harboring some occurrences. Development has extirpated at 
least one-third of the known occurrences (CDFG 1990a). Other threats to 
these populations include off-road vehicle use, grading, dumping, road 
maintenance, change in fire frequency, and competition with invasive 
alien vegetation (CNDDB 1994).
    Beecher Crampton first collected Ceanothus roderickii in 1956 from 
Pine Hill in El Dorado County, California. Walter Knight described C. 
roderickii in 1968, naming it after Wayne Roderick, who first suspected 
the horticultural value of this endemic shrub (Knight 1968). Knight 
(1968) considered C. roderickii to be most closely related to C. 
cuneatus, which also grows throughout the area. Ceanothus roderickii 
can be differentiated from its congeners by its blue-tinged flowers, 
prostrate habit, and inconspicuously horned fruit.
    Ceanothus roderickii is a prostrate evergreen shrub of the 
buckthorn family (Rhamnaceae) that generally grows to 3 m (9.84 ft) in 
diameter. The smooth gray-brown branches radiate from a central axis 
and root when they come into contact with the ground. The leaves of the 
species are semi-erect with entire margins. Small whitish flowers 
tinged with blue appear from May through June. Its fruit is an 
inconspicuously horned globe-shaped capsule.
    Ceanothus roderickii is restricted to gabbro-derived soil in 
openings in chaparral or more infrequently on previously disturbed 
sites within chaparral (Wilson 1986). The species is restricted to one 
localized area of approximately 10 known extant occurrences 
discontinuously scattered in the Pine Hill intrusion (CNDDB 1994). 
Residential and commercial development, inadequate regulatory 
mechanisms, off-road vehicle use, road-widening, change in fire 
frequency, and other human-caused conditions are responsible for the 
decline of C. roderickii. Commercial development has extirpated two 
known occurrences (CNDDB 1994). Ceanothus roderickii occurs primarily 
on private land. BLM owns part of one site and the California 
Department of Forestry (CDF) owns another site.
    Beecher Crampton made the first collection of Fremontodendron 
californicum ssp. decumbens in 1956. Robert Lloyd (1965) described F. 
californicum ssp. decumbens as F. decumbens based on the type specimen 
Lloyd collected in May 1964 from ``California, El Dorado Co., Pine 
Hill, ca. 3 km north of Rescue.'' Philip Munz (1968) reduced F. 
decumbens to a subspecies of F. californicum. Walter Kelman (1991), in 
his revision of Fremontodendron, recognized F. californicum ssp. 
decumbens as a full species based upon morphological variation. 
Nonetheless, the plant is treated as F. californicum ssp.

[[Page 54348]]

decumbens in the Jepson Manual (Whetstone and Atkinson 1993).
    Fremontodendron californicum ssp. decumbens is a branched spreading 
shrub of the cacao family (Sterculiaceae) growing to 1.3 m (4 ft) tall. 
Dense star-shaped hairs cover the leaves and the younger twigs and 
branchlets. The leaves of the subspecies are elliptic-ovate to ovate, 
shallowly or deeply palmately lobed with 5 to 7 lobes. Showy light-
orange to reddish-brown flowers appear from late April to early July. 
Its fruit is a capsule. Fremontodendron californicum ssp. decumbens can 
be distinguished from F. californicum ssp. californicum and F. 
mexicanum by its decumbent growth habit, its relatively long peduncles, 
and its copper-orange flowers.
    Fremontodendron californicum ssp. decumbens occurs on scattered 
rocky outcrops either in chaparral or in the ecotone between woodland 
and chaparral. The subspecies depends on fire to promote seed 
germination, and Boyd (1996) documented that seeds are dispersed by 
ants. It is only known from one localized area near Pine Hill in 
western El Dorado County scattered within an area of approximately 
2,000 ha (5,000 ac). Although there are some reports of F. californicum 
ssp. decumbens occurring in some small scattered populations in Yuba or 
Nevada County, other reports describe these individuals as aberrant F. 
californicum ssp. californicum. Fremontodendron californicum ssp. 
decumbens occurs primarily on private land, but one site is on BLM 
land. CDF and CDFG also own another site.
    The largest population of Fremontodendron californicum ssp. 
decumbens is on the Pine Hill Ecological Reserve managed by CDFG. The 
proximity of this plant to human population centers and intensive 
development activities renders F. californicum ssp. decumbens 
vulnerable to the long-term effects of fire suppression. The restricted 
distribution of the subspecies increases its susceptibility to 
catastrophic events such as disease or pest outbreak, severe drought, 
or other natural or human-caused disasters. In addition, residential 
and commercial development (including unregulated grading for homes or 
barns on existing large parcels), and trash dumping threaten F. 
californicum ssp. decumbens.
    The type specimen for Galium californicum ssp. sierrae was 
collected 1.7 km (1 mi) north of Pine Hill Lookout in western El Dorado 
County, California. Lauramay Dempster and G. Ledyard Stebbins (1968) 
described G. californicum ssp. sierrae.
    Galium californicum ssp. sierrae is a softly hairy perennial herb 
in the coffee family (Rubiaceae). Four narrow leaves are arranged at 
each node. The pale yellow flowers, which are clustered at the tips of 
stems, appear in May and June. Minute hairs cover the fleshy fruit. 
Galium californicum ssp. sierrae can be distinguished from other 
subspecies of G. californicum by its very narrow leaves.
    Galium californicum ssp. sierrae is restricted to one localized 
area--Pine Hill and surrounding ridges to the west within a distance of 
approximately 4 km (2.5 mi) (Baad and Hanna 1987). The subspecies grows 
in oak woodland areas, including sites with ponderosa pine and gray 
pine (Wilson 1986). Galium californicum ssp. sierrae occurs primarily 
on private land. BLM manages the land where at least one population 
occurs. CDF and CDFG manage one site as well. Residential development, 
road construction, grazing by horses, and irrigation threaten G. 
californicum ssp. sierrae. Restricted distribution and limited numbers 
of individuals make it susceptible to catastrophic events such as 
disease or pest outbreak, severe drought, or other natural disasters.
    Kate Brandegee Layne-Curran collected the type specimen for Senecio 
layneae in May 1883 from El Dorado County, California, on Sweetwater 
Creek, not far from Folsom. E. L. Greene first described S. layneae in 
1883 (Greene 1883). Although Asa Gray reduced S. layneae to a variety 
of S. fastigiatus (1884), the species currently is known as S. layneae 
(Barkley 1993). The type population is now thought to be extirpated due 
to inundation by Folsom Lake.
    Senecio layneae is a perennial herb of the aster family 
(Asteraceae) that sprouts from a rootstock. Its mostly basal lance-
shaped leaves are 8 to 24 cm (3 to 10 in) long. The several flower 
heads are 4 to 6 cm (2 to 3 in) wide each having 5 to 8 orange-yellow 
ray flowers and numerous yellow disk flowers. Senecio layneae flowers 
between April and June.
    Senecio layneae grows in open rocky areas within chaparral plant 
communities, primarily on gabbro-derived soil formations and 
occasionally on serpentine soils. Most known sites are scattered within 
a 16,200 ha (40,000 ac) area in western El Dorado County that includes 
the Pine Hill intrusion and adjacent serpentine. A few other colonies 
occur in the Eldorado National Forest in El Dorado County and in the 
BLM Red Hills Management Area in Tuolumne County (BioSystems Analysis, 
Inc. 1984). Senecio layneae primarily occurs on privately owned land. 
Some populations of S. layneae also occur on Federal land managed 
either by the Forest Service or BLM. One site is on land managed by CDF 
and CDFG. Residential and commercial development, road maintenance, 
change in fire frequency, off-road vehicle use, competition with 
invasive alien vegetation, excessive horse grazing practices, mining, 
and other human-caused conditions threaten and are responsible for the 
declining trend for S. layneae (CDFG 1990b, CNDDB 1994).

Previous Federal Action

    Federal government actions on the five plants began as a result of 
section 12 of the Act of 1973, 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 
Fremontodendron decumbens (now known as Fremontodendron californicum 
ssp. decumbens), Galium californicum ssp. sierrae, and Senecio layneae 
as endangered and Ceanothus roderickii as threatened. The Service 
published a notice on July 1, 1975, (40 FR 27823) of its acceptance of 
the report of the Smithsonian Institution as a petition within the 
context of section 4(c)(2) (petition provisions are now found in 
section 4(b)(3) of the Act) and its intention thereby to review the 
status of the plant taxa named therein. The above four taxa were 
included in the July 1, 1975, notice. On June 16, 1976, the Service 
published a proposal (41 FR 24523) to determine approximately 1,700 
vascular plant species, including Calystegia stebbinsii, F. decumbens, 
G. californicum ssp. sierrae, and S. layneae, 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.
    General comments received in relation to the 1976 proposal were 
summarized in an April 26, 1978, publication (43 FR 17909). The Act 
Amendments of 1978 (Amendments) required the Secretary to withdraw all 
proposals not adopted as final regulations within two years from their 
publication in the Federal Register. Proposals published before the 
date of enactment of the Amendments could be withdrawn before the end 
of a 1-year grace period. On December 10, 1979, the Service published a 
notice of

[[Page 54349]]

withdrawal (44 FR 70796) of the June 16, 1976, proposal, along with 
four other proposals that had expired.
    The Service published an updated Notice of Review for plants on 
December 15, 1980 (45 FR 82480). This notice included Calystegia 
stebbinsii, Fremontodendron decumbens, Galium californicum ssp. 
sierrae, and Senecio layneae as category 1 candidates for Federal 
listing, and Ceanothus roderickii as a category 2 candidate. Category 1 
taxa were those for which the Service had on file substantial 
information on biological vulnerability and threats to support 
preparation of listing proposals. Category 2 taxa were those for which 
data in the Service's possession indicated listing was possibly 
appropriate, but for which substantial data on biological vulnerability 
and threats were not known or on file to support proposed rules. On 
November 28, 1983, the Service published a supplement to the Notice of 
Review (48 FR 53640). This supplement changed C. stebbinsii, F. 
decumbens, G. californicum ssp. sierrae, and S. layneae from category 1 
to category 2 candidates.
    The September 27, 1985 (50 FR 39526), plant Notice of Review 
included Calystegia stebbinsii, Ceanothus roderickii, Fremontodendron 
californicum ssp. decumbens (as Fremontodendron decumbens), Galium 
californicum ssp. sierrae, and Senecio layneae as category 2 
candidates. The February 21, 1990 (55 FR 6184), and September 30, 1993 
(58 FR 51144), plant notices of review included C. roderickii and F. 
californicum ssp. decumbens (as F. decumbens) as category 1 candidates 
and C. stebbinsii, G. californicum ssp. sierrae, and S. layneae as 
category 2 candidates. On February 28, 1996, the Service published a 
Notice of Review in the Federal Register (61 FR 7596) that discontinued 
the use of categories and removed former category 2 species from 
candidate status.
    Section 4(b)(3)(B) of the Act requires the Secretary to make 
certain findings on pending petitions within 12 months of their 
receipt. Section 2(b)(1) of the 1982 amendments further required that 
all petitions pending on October 13, 1982, be treated as having been 
newly submitted on that date. This was the case for Ceanothus 
roderickii, Fremontodendron californicum ssp. decumbens, Galium 
californicum ssp. sierrae, and Senecio layneae because the 1975 
Smithsonian report was accepted as a petition. On October 13, 1982, the 
Service found that the petitioned listing of these species was 
warranted but precluded by other pending listing actions in accordance 
with section 4(b)(3)(B)(iii) of the Act. Notification of this finding 
was published on January 20, 1984 (49 FR 2485). Such a finding requires 
the petition to be recycled, pursuant to section 4(b)(3)(C)(I) of the 
Act. The finding was reaffirmed annually in October of 1983 through 
1993. Publication of the proposed rule constituted the final finding 
for the petitioned action.
    A proposal to list Calystegia stebbinsii, Ceanothus roderickii, 
Fremontodendron californicum ssp. decumbens, and Galium californicum 
ssp. sierrae as endangered and Senecio layneae as threatened was 
published on April 20, 1994 (59 FR 18774). The proposal was based on 
information supplied by reports to the California Diversity Database; 
observations and studies by numerous botanists; and reports by EIP 
associates, Jones & Stokes Associates, and Biosystems Analysis, Inc.
    The processing of this final listing rule conforms with the 
Service's final listing priority guidance published on May 16, 1996 (61 
FR 24722). The guidance clarifies the order in which the Service will 
process rulemakings following two related events, the lifting, on April 
26, 1996, of the moratorium on final listings imposed on April 10, 1995 
(Public Law 104-6) and the restoration of significant funding for 
listing through passage of the omnibus budget reconciliation law on 
April 26, 1996, following severe funding constraints imposed by a 
number of continuing resolutions between November 1995 and April 1996. 
The guidance calls for giving highest priority to handling emergency 
situations (Tier 1) and second highest priority (Tier 2) to resolving 
the listing status of the outstanding proposed listings. This final 
rule falls under Tier 2.

Summary of Comments and Recommendations

    In the April 20, 1994, proposed rule and associated notifications, 
all interested parties were requested to submit factual reports or 
information that would contribute to the development of a final rule. A 
90-day comment period closed on July 19, 1994. Appropriate Federal and 
State agencies, county and city governments, scientists, and interested 
parties were contacted and requested to comment. The Service published 
notices in the Sacramento Bee on May 6 and 12, 1994, Placerville 
Mountain Democrat on May 9, 1994, and Grass Valley Union on May 6, 
1994, inviting general public comment. Thirty-eight individuals or 
agencies, including State and Federal congressmen, El Dorado County 
Board of Supervisors, BLM, California Cattlemen's Association, 
California Department of Forestry and Protection, and California Native 
Plant Society (CNPS), submitted comments. Several individuals commented 
more than once. Ten commenters supported, 25 opposed, and three were 
neutral on the proposed action.
    In response to the publication of the proposed rule, Daniel Macon, 
Director of Industry Affairs, California Cattlemen's Association; 
William Hazeltine, Environmental Consultant, Oroville, California; and 
Robert Feusi, Gardner-Feusi Company, Sacramento, California requested a 
public hearing in letters dated May 2, 1994, April 4, 1994, and June 3, 
1994 respectively. Notice of the public hearing was published in the 
Sacramento Bee (June 14, 1994), a newspaper with a large circulation, 
as well as in the Placerville Mountain Democrat (June 15, 1994), and 
the Grass Valley Union (June 14, 1994). A public hearing was held at 
the Radisson Hotel in Sacramento on June 30, 1994, from 6 pm. to 8 pm. 
Twenty people presented oral and written testimony.
    Written comments and oral statements presented at the public 
hearing and received during the comment period are addressed in the 
following summary. Comments of a similar nature are grouped together 
into general issues. These issues and the Service's responses are 
presented below.
    Issue 1: Many commenters expressed concern that the listing would 
negatively impact property owners' ability to clear vegetation from 
around their homes for fire protection. One commenter stated the 
listing may be in opposition to the State fire codes requiring 
``defensible space'' for fire protection. Others thought that 
``homeowners who removed vegetation around their homes for fire 
protection could be deemed criminals.''
    Service Response: Removing listed plants from one's own land is not 
prohibited by the Act. Listing the five plants as endangered or 
threatened would not prohibit the cutting of a defensible space around 
an individual's residence. Other activities that do not violate section 
9(a)(2) of the Act, as well as prohibited acts, are discussed further 
under ``Conservation Measures.''
    Issue 2: Several people expressed concerns regarding the adverse 
economic impact listing would have on the economy of El Dorado County.
    Service Response: Under section 4(b)(1)(A), a listing determination 
must be based solely on the best scientific and commercial data 
available. The legislative history of this provision clearly states the 
intent of Congress to

[[Page 54350]]

``ensure'' that listing decisions are ``based solely on biological 
criteria and to prevent non-biological considerations from affecting 
such decisions,'' H. R. Rep. No. 97-835, 97th Cong. 2d Sess. 19 (1982). 
As further stated in the legislative history, ``Applying economic 
criteria * * * to any phase of the species listing process is applying 
economics to the determinations made under section 4 of the Act and is 
specifically rejected by the inclusion of the word ``solely'' in this 
legislation,'' H. R. Rep. No. 97-835, 97th Cong. 2d Sess. 19 (1982). 
Because the Service is precluded from considering economic impacts in a 
final decision on a proposed listing, the Service has not examined such 
impacts.
    Issue 3: Several commenters stated that specific data used in 
preparation of the proposed rule were unavailable for review and 
comment.
    Service Response: The proposed rule summarized and cited available 
scientific and commercial information. The supporting documentation was 
available during the public comment period for review as stated in the 
proposed rule. Two individuals requested to review this documentation.
    Issue 4: Several commenters requested either no further action be 
undertaken with the listing process of these five plants because of the 
existence of the El Dorado County preserve system plan, or that efforts 
be postponed until local attempts to conserve the species are 
completed. Several commenters also contended that adequate regulatory 
mechanisms currently are in place to protect the plants, through the 
California Environmental Quality Act (CEQA) and the California 
Endangered Species Act (CESA).
    Service Response: As discussed in Factor D, in the ``Summary of 
Factors Affecting the Species'' section, the preserve system approved 
in concept by the El Dorado County Board of Supervisors generates no 
habitat acquisition funding, provides no clear mechanism to protect 
habitat, and fails to include a preserve in the southern part of the 
gabbro-derived soil formation. The Service agrees that local ecosystem 
planning can be an effective way to coordinate conservation and 
development objectives, and we encourage El Dorado County in its 
planning effort. However, the present status of the County plan does 
not provide sufficient assurances for habitat protection.
    The only protection given to State-listed species is the 
requirement that landowners give CDFG 10 days notice of any land use 
change. The CEQA requires mitigation for projects that adversely affect 
listed species as well as those that qualify for State listing; 
however, many mitigation attempts do not secure long-term protection 
for such plants (Howald 1993). The failure of existing regulatory 
mechanisms to adequately protect the plants are further discussed under 
Factor D.
    Issue 5: Several commenters questioned the necessity for listing 
the species now, since the species have been under consideration for 
Federal listing for 19 years, and contended that the reason the taxa 
were being proposed was because of a lawsuit settlement agreement 
between the Service and CNPS rather than on purely scientific grounds.
    Service Response: While the CNPS lawsuit settlement may have 
brought more public attention to declining California plant species, 
the suit does not change the standards by which species are evaluated 
for potential listing. As stated under Issue 2 above, the Endangered 
Species Act directs the Service to list species on the basis of 
biological vulnerability.
    Issue 6: A few commenters stated that the Service must prepare an 
Environmental Impact Statement (EIS), pursuant to the National 
Environmental Policy Act (NEPA), on this rule.
    Service Response: For the reasons set out in the NEPA section of 
this document, the Service has determined that the rules issued 
pursuant to section 4(a) of the Act do not require the preparation of 
an EIS. The Federal courts have held in Pacific Legal Foundation v. 
Andrus, 657 F.2d 829 (6th Circuit 1981), that an EIS is not required 
for listing under the Act. The Sixth Circuit decision noted that 
preparing an EIS on listing actions does not further the goals of NEPA 
or the Act.
    Issue 7: Many commenters indicated that the Service should 
designate critical habitat. One commenter stated ``without the process 
of assessing and designating critical habitat, the public will be 
denied its statutory right to participate in the development of a 
rational and effective recovery plan.''
    Service Response: The Service has concluded that, at this time, the 
danger posed to the five plant species by designating critical habitat 
outweighs any potential benefit. As discussed in the ``Summary of 
Factors Affecting the Species'' section, all five plants could be 
adversely affected by acts of vandalism if the sites become known 
through the critical habitat designation process. In addition, as 
discussed further under the ``Critical Habitat'' section, the potential 
benefit gained by designating critical habitat is limited. Regarding 
development and implementation of recovery plans, Service policy (59 FR 
34270) solicits active participation by the scientific community, 
local, State, and Federal agencies, Tribal governments, and other 
interested parties.
    Issue 8: A few commenters stated that the Service had not 
adequately notified the public regarding the proposed rule. Another 
commenter requested to have the hearings held locally.
    Service Response: The Service published a notice of the proposed 
rule regarding these five plants in the Federal Register on April 20, 
1994 (59 FR 18774). The Service mailed 50 notifications of the proposed 
rule to Federal, State, county entities, species experts, and other 
individuals to solicit their input. Additionally, the Service paid for 
the publication of public notices regarding the proposed rule in the 
following newspapers--Sacramento Bee, Placerville Mountain Democrat and 
the Grass Valley Union. In response to the requests for a public 
hearing, the Service announced the scheduling of a public hearing in 
the Federal Register on June 9, 1994 (59 FR 29778), and shortly 
thereafter published additional notices in the Sacramento Bee, a local 
newspaper with a large circulation, the Placerville Mountain Democrat, 
and the Grass Valley Union. The Service also mailed notification of the 
public hearing to a variety of interested parties.
    Issue 9: One commenter stated that the Service needs to complete a 
Regulatory Impact Analysis, as directed by Presidential Executive Order 
12630, for the proposed rule to list the five plants. Three commenters 
were concerned about the listing violating private property rights 
within the Fifth and Fourteenth Amendments to the U.S. Constitution.
    Service Response: Regarding Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights, the Attorney General has issued implementation guidelines to 
the Department of the Interior (Department). Under these guidelines, a 
special rule applies when an agency within the Department is required 
by law to act without exercising its usual discretion--that is, to act 
solely upon specified criteria that leave the agency no discretion.
    In this context, an agency's action might be subject to legal 
challenge if it did not consider or act upon economic information. In 
these cases, the Attorney General's guidelines state that Taking 
Implications Assessments (TIAs) shall be prepared after, rather than 
before, the agency makes the decision upon which

[[Page 54351]]

its discretion is restricted. The purpose of the TIAs in these special 
circumstances is to inform policy makers of areas where unavoidable 
taking exposures exist. Such TIAs shall not be considered in the making 
of administrative decisions that must, by law, be made without regard 
to their economic impact. In enacting the Endangered Species Act, 
Congress required that listings be based solely upon scientific and 
commercial data indicating whether or not the species are in danger of 
extinction. Thus, by law and U.S. Attorney General guidelines, the 
Service is forbidden to conduct such TIAs prior to listing.
    Regarding personal property rights within the Fifth and Fourteenth 
amendments, the mere promulgation of a regulation is rarely sufficient 
to establish that private property has been taken unless the regulation 
denies the property owner all economically viable use of personal 
property. Listing pursuant to the Act does not restrict all uses of 
one's land. Property owners cannot establish that their properties have 
been taken as a result of a regulatory action such as the listing of a 
species until development proposals are denied. Property owners must 
apply for all available permits and waivers before takings potentially 
could be established.
    Issue 10: One commenter believes the only threat to the plants is 
the natural progression of chaparral and change in fire frequency.
    Service Response: As discussed further in the ``Summary of Factors 
Affecting the Species'' section, numerous threats imperil these five 
species including urbanization and its ensuing habitat fragmentation, 
road construction and maintenance, grading, herbicide spraying, off-
road vehicle use, change in fire frequency, unauthorized dumping, 
overgrazing by horses, competition from invasive alien vegetation, and 
mining.
    Issue 11: One commenter stated Calystegia stebbinsii should not be 
listed because it needs disturbance. This commenter also noted that 
this plant would not be around after 5 to 10 years without disturbance.
    Service Response: Limited surface disturbance benefits Calystegia 
stebbinsii in certain circumstances by promoting initial establishment, 
though, the type and amount of disturbance the plant can tolerate is 
important. Whereas occasional disturbance for scarification of seed may 
be beneficial, other types of disturbance, such as mowing once the 
plant is growing, or construction, would be detrimental to the species' 
survival.
    Issue 12: One commenter stated that listing the species would cause 
needless duplication with the State process.
    Service Response: Federal and State regulations often complement 
each other. For example, as discussed in Factor D in the ``Summary of 
Factors Affecting the Species'' section, the CEQA and CESA apply only 
to actions on private and State lands. Whereas, the Act primarily 
covers Federal land and Federal actions that may affect proposed and 
listed species.
    Issue 13: Some commenters believed no specific justification for 
listing exists, or questioned the adequacy of the data. One commenter 
believed that many of the items listed in the proposed rule were wholly 
inaccurate and did not support the listing. One commenter stated the 
listing should be based on good science and local peer review.
    Service Response: Specific justification for listing the five plant 
species is summarized in Factors A through E. The Service used 
information received from the CNDDB, botanical collections, 
knowledgeable botanists, and from studies specifically directed at 
gathering the information on the distribution and threats to the five 
plants. Additionally, information was received from Federal, State, and 
local agencies, and professional botanists during the preparation of 
the proposed rule. Destruction, loss of habitat, and extirpation of 
populations of these plants from a variety of causes have been 
documented. As discussed in Issue 8, the Service sought comments on the 
proposed rule from Federal, State, county entities, species experts, 
and other individuals. All substantive new data received during the 
public comment period have been incorporated into the final rule.
    Issue 14: One commenter stated that grazing by cattle and other 
ungulates has been a historical and integral component of the central 
Sierran ecosystem, and that properly managed grazing by cattle and 
other domestic livestock can create the habitat conditions and 
vegetative diversity required by many species of plants and wildlife.
    Service Response: The commenter did not provide specific 
information on the role of domestic livestock in the gabbro-derived/
serpentine habitat of the five plants. However, assuming the area 
referred to includes chaparral, wild ungulates and other herbivores, 
such as deer and rabbit species, have been an integral component of the 
ecosystem. Chaparral characteristically does not produce high amounts 
of grass and, typically, is not an important source of forage for 
domestic livestock (Stoddart et al. 1975). The Service agrees that 
cattle and other domestic livestock can be managed to achieve natural 
resource objectives, including a diversity of habitats for many species 
of plants and wildlife.
    To determine the effects of grazing, site specifics of the 
management regime need to be considered and evaluated. Grazing by 
cattle in rangeland situations currently does not appear to be 
affecting these plants on the Pine Hill intrusion. As discussed in 
Factor C, the principal impact on the plants under consideration is 
consumption that results when horses are paddocked on small rural 
residential lots of insufficient size to provide adequate forage or 
pasture.
    Issue 15: One commenter stated that there has been no further 
degradation or destruction of habitat of any kind since 1989.
    Service Response: While public awareness of the importance of 
protecting plant habitat has increased, as discussed in Factors A and 
E, the primary threat facing these plants remains habitat destruction 
and fragmentation from urbanization, road construction, and increased 
human activity.
    Issue 16: One commenter was concerned about what happens when a 
species that is thought to be rare is listed and new populations are 
subsequently found.
    Service Response: If scientific or commercial information indicates 
a species is much more abundant or widely spread than is currently 
thought and/or a species is no longer endangered or threatened by any 
of the five factors, a species may be delisted. The process for 
delisting a species is similar to the process for listing a species. 
Although additional populations of the five proposed plants could be 
found, it is unlikely that many populations would contain large 
numbers. As discussed in the ``Introduction'' and ``Summary of the 
Factors Affecting the Species'' sections, these plants are habitat 
specific endemics that are exposed to range-wide human related threats.
    Issue 17: One commenter stated that managing fire on smaller rather 
than larger units is both practical and often more ecologically 
beneficial due to the greater control that can be achieved.
    Service Response: The Service agrees that fire can be applied in a 
more precise way on smaller units than larger units. The Service 
desires to work cooperatively with local fire management agencies in 
designing prescriptions that accommodate public safety and plant 
conservation objectives.

[[Page 54352]]

    Issue 18: One commenter claimed that the Service has no 
jurisdiction over the five proposed species because at least 80 percent 
of the existing populations occur on private land.
    Service Response: Section 4 of the Act directs the Service to 
evaluate species for listing based on biological information only. The 
five factors on which the biological vulnerability of species are 
evaluated are discussed in the ``Summary of Factors Affecting the 
Species'' section. Land ownership is not a factor used to determine 
whether listing is appropriate.
    Issue 19: Two commenters were concerned about the additional time 
that might be added to implementing a controlled burn program due to 
the section 7 consultation process. One commenter wanted the Public 
Agencies Prescribed Burn Plan and Environmental Review to be accepted 
in lieu of the section 7 process. The other commenter wanted special 
rules to advocate professionally planned and implemented prescribed 
burning.
    Service Response: The Service recognizes the importance of properly 
timed prescribed burns as a conservation measure, not only for 
maintaining habitat, but also for protecting human life and personal 
property. At least 80 percent of the occurrences of these plants are on 
private land. No special rules are needed to facilitate private land 
burning. Prescribed burning on private land would not be subject to 
section 7 consultation. Section 7 of the Act requires Federal agencies 
to evaluate their actions with respect to any species that is proposed 
or listed as endangered or threatened. A programmatic section 7 
consultation could be performed for prescribed burns on Federal lands 
to eliminate the need to consult on each prescribed burn activity.
    Issue 20: A few commenters expressed concern regarding the impact 
of listing the plants to private property owners when Federal funding 
permitting is required. A couple of commenters stated the listing would 
infringe on local water rights issues, including Federal involvement in 
any Auburn Dam work.
    Service Response: Section 4 of the Act directs the Service to 
evaluate species for listing based on biological information only. The 
five factors on which the biological vulnerability of species are 
evaluated are discussed in the ``Summary of Factors Affecting the 
Species'' section. Impact to private landowners when Federal funding is 
involved, or infringement on local water rights issues are not factors 
used to determine whether or not listing is appropriate.
    Section 7(a)(2) requires Federal agencies to insure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of listed species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency must enter into 
formal consultation with the Service.
    Issue 21: Two commenters noted confusion regarding the amount of 
habitat that is federally owned.
    Service Response: The Service wishes to clarify the figures within 
the proposed rule. The Service arrived at the reported 80 percent of 
occurrences being on private land at by dividing the number of 
occurrences on private land by the total number of occurrences. It is 
not a percentage of the habitat that is federally owned. The 10,400 ha 
(25,700 ac) referred to in the rule is the area of the gabbro-derived 
soils. The 16,200 ha (40,000 ac) within the rule refers to an area that 
includes the gabbro-derived soils plus adjacent serpentine soils in 
western El Dorado County. Within this 16,200 ha area, 95 percent of the 
land is outside Federal ownership (John Upton, County of El Dorado, in 
litt. 1994).

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, the Service has determined that Calystegia stebbinsii, 
Ceanothus roderickii, Fremontodendron californicum ssp. decumbens, 
Galium californicum ssp. sierrae should be classified as endangered 
species and Senecio layneae should be classified a threatened species. 
Procedures found at section 4(a)(1) of the Act and regulations 
implementing the listing provisions of the Act (50 CFR part 424) were 
followed. A species may be determined to be 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 Calystegia stebbinsii 
Brummitt (Stebbins' morning-glory), Ceanothus roderickii Knight (Pine 
Hill ceanothus), Fremontodendron californicum ssp. decumbens (Lloyd) 
Munz (Pine Hill flannelbush), Galium californicum H. & A. ssp. sierrae 
Dempster & Stebbins (El Dorado bedstraw), and Senecio layneae Greene 
(Layne's butterweed) are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. At least 80 percent of the 
occurrences for these five plant species are on private land. They 
primarily occur on the Pine Hill intrusion, an area of approximately 
10,400 ha (25,700 ac) in western El Dorado County. A few isolated 
occurrences of Calystegia stebbinsii or Senecio layneae are known from 
El Dorado, Nevada, and/or Tuolumne counties (EIP Associates 1991, CNDDB 
1994). The primary threat facing these five species and their 
associated habitat is the ongoing and threatened destruction and 
modification of habitat by one or more of the following--urbanization 
and the ensuing habitat fragmentation, road construction and 
maintenance, off-road vehicle use, and mining.
    Nearly all the remaining occurrences of the five species are 
threatened by destruction of habitat through residential or commercial 
development. The human population of the four counties just east of the 
Sacramento metropolitan area (Nevada, Placer, El Dorado, and Amador) 
increased 375 percent between 1960 and 1992 (Engellenner 1993). El 
Dorado County, which has a projected population growth of 54 percent 
between 1990 and 2005, is one of the most rapidly growing counties in 
California (California Department of Finance 1991, Jones and Stokes 
Associates 1992). In 1991, the population grew by 4.2 percent; faster 
than the projected growth rate of 3.6 percent (California Department of 
Finance 1992). Western El Dorado County is becoming a bedroom 
community, as it is easily accessible by freeway from several nearby 
cities including Sacramento. Most of the new residential growth in El 
Dorado County is expected to occur within western El Dorado County near 
Highway 50 (Jones and Stokes Associates 1992), which crosses the 
southern portion of the Pine Hill intrusion.
    Within the gabbro-derived soil and adjacent serpentine formations 
in western El Dorado County, 39 proposed development projects, which 
variously threaten to fragment the habitat of all five species, are 
currently on file with El Dorado County. Development currently is 
planned for approximately 8.5 percent of this 16,200 ha (40,000 ac) 
area. In addition, the El Dorado County General Plan update proposes 
the conversion of vacant and agricultural land to various residential 
uses within the 38,400 ha (95,000 ac) western service area of the El 
Dorado County Irrigation District (EID) (Jones and Stokes Associates 
1992), which encompasses nearly the entire Pine Hill intrusion. It is 
estimated that at least 50 percent of the Pine Hill intrusion is

[[Page 54353]]

within the EID boundary (Kirsten Tarp, Fish and Wildlife Service, pers. 
comm. 1996).
    The proposed land uses within the western service area of the EID 
include a 1,000 percent increase in single family residences (from a 
current level of 1,857 ha (4,589 ac) to 20,254 ha (50,047 ac)) and a 
doubling of the rural residential uses (from 7,630 ha (18,860 ac) to 
15,780 ha (39,000 ac)) (Jones and Stokes Associates 1992). The El 
Dorado County Water Agency proposed the construction of either 
additional dams, water storage facilities, or water conveyance lines on 
the South Fork of the American River (Jones and Stokes Associates 1992, 
El Dorado County Water Agency 1993). The subsequent induced growth 
would affect all five species in both the northern and southern 
portions of the Pine Hill intrusion and adjacent serpentine, either by 
further fragmenting the habitat (as discussed below) or by directly 
destroying habitat. The expanding number of people and changes in land 
uses will continue to place an increasing strain on undeveloped areas 
through activities such as off-road vehicle traffic, unauthorized 
garbage dumping, and changes in the pattern of wildfires.
    Historical gold rush activities and clearing for agriculture 
reduced and fragmented habitat of the five plants. Currently, these 
plants face threats from habitat fragmentation associated with 
commercial and residential development and road construction. 
Fragmentation splits habitat into smaller, more isolated units and has 
two primary effects. First, habitat fragmentation may alter the 
physical environment, changing the amount of incoming solar radiation, 
water, wind, or nutrients for the remnant vegetation (Saunders et al. 
1991). Second, a higher proportion of these fragmented natural areas is 
subject to influences from external factors (e.g., additional 
development, lawn and garden watering, herbicide drift, and off-road 
vehicular use) that disrupt natural ecosystem processes.
    The vegetation structure on the Pine Hill intrusion has changed 
significantly due to commercial and residential development, road 
construction, and historical fragmentation. Hunter and Horenstein 
(1991) characterized vegetation structure on the Pine Hill intrusion 
and estimated the median patch size to be only 11 ha (27 ac). This 
degree of fragmentation is significant within chaparral because plant 
species will disappear from fragments between 10 and 100 ha (25 to 250 
ac) in size due to persistent disturbance and potentially due to change 
in fire frequency (Soule et al. 1992). These and other effects of 
fragmentation are discussed further.
    Twelve potential preserve sites were identified as the best 
remaining habitat for the five plants on the Pine Hill intrusion and 
adjacent serpentine (EIP Associates 1991). Within these 12 sites, at 
least 11 residential or commercial projects (Bass Lake Estates, Cameron 
Ridge, Fremont's Peak, Kanaka Valley, Pinnacles, Ponderosa 50, Sunset 
Heights, Woodleigh Ridge, and three approved parcel splits) are 
proposed (El Dorado County Planning Staff 1992). These projects 
threaten all five plants to varying degrees by directly destroying 
individual plants or further fragmenting and destroying their habitat.
    Activities often associated with rural residential areas, such as 
clearing chaparral for fire protection around houses, bulldozing land 
(to build houses or other structures), planting fruit trees, and 
irrigation, also have modified the habitat within western El Dorado 
County (James Jokerst, Jones and Stokes Associates, pers. comm. 1993; 
Jo Van Ess, California State University, Sacramento, pers. comm. 1993). 
The ongoing repetitive clearing of chaparral destroys the habitat. 
Irrigation involved with lawn maintenance also adversely affects these 
species (Jo Van Ess, pers. comm. 1993; James Jokerst, pers. comm. 
1993).
    Commercial and residential development has extirpated at least one-
third of the known occurrences of Calystegia stebbinsii (CDFG 1990a, 
CNDDB 1994). Most of the remaining occurrences for C. stebbinsii are on 
the Pine Hill intrusion. All of these sites, except for those in the 
northern part, are in areas threatened by rapid residential and 
commercial development as discussed above. Habitat for C. stebbinsii in 
Nevada County is threatened by a proposed County works project (CDFG 
1990a).
    Other human activities also destroy or damage habitat of Calystegia 
stebbinsii. One occurrence was adversely impacted by grading for 
construction (CNDDB 1994). Off-road vehicle use has adversely impacted 
the habitat of C. stebbinsii at one site (CNDDB 1994). In the northern 
part of the Pine Hill intrusion, several hills are scarred with off-
road vehicle tracks. Erosion promoted by scarring adversely modifies 
the habitat. Road maintenance and herbicide spraying potentially 
threaten another site of C. stebbinsii that occurs along a road cut 
(CNDDB 1994).
    Shopping center construction and other commercial development 
extirpated two occurrences of Ceanothus roderickii (CNDDB 1994). Road-
widening also threatens the habitat of C. roderickii at one site (CNDDB 
1994). Off-road vehicle use degrades the habitat at three sites in the 
northern part of the area (CNDDB 1994).
    Construction of houses on and near Pine Hill resulted in the loss 
of many individuals of Fremontodendron californicum ssp. decumbens 
(George Clark, in litt. 1993). Land clearing activities that occur with 
road construction also threaten F. californicum ssp. decumbens. In 
1968, all the vegetation along the Pine Hill approach road was cut. In 
1969, the west slope of Pine Hill was cleared by the CDF, demolishing 
80 percent of the F. californicum ssp. decumbens within the boundaries 
of the current Pine Hill Ecological Reserve (Baad and Hanna 1987). Most 
of these shrubs have resprouted. Presently, the Pine Hill Ecological 
Reserve, managed by CDFG, has the largest occurrence of F. californicum 
ssp. decumbens.
    No known extirpations of Galium californicum ssp. sierrae due to 
residential or commercial development have occurred. However, as 
discussed above, residential or commercial development and activities 
associated with rural residential areas threaten G. californicum ssp. 
sierrae within the potential reserve area identified as the best 
remaining habitat. Galium californicum ssp. sierrae has a small 
population size and a restricted distribution almost entirely on 
private land.
    Commercial and residential development extirpated two occurrences 
of Senecio layneae (CNDDB 1994). Many of the remaining occurrences of 
S. layneae are in areas undergoing rapid commercial and residential 
development. Senecio layneae is also potentially threatened by a 
variety of disturbances including road maintenance, vegetation removal, 
and off-road vehicle use (CNDDB 1994). Road widening occurs in the 
vicinity of development within El Dorado County, and this activity has 
already extirpated one occurrence and threatens an additional five 
sites (CNDDB 1994). Intensive off-road vehicle use threatens two 
additional occurrences of this species (CNDDB 1994). Off-road vehicle 
use occurred historically in Tuolumne County on BLM land, but this 
activity no longer occurs there. Currently, off-road vehicle use occurs 
on two sites within the Pine Hill intrusion on privately owned land. 
One site of S. layneae in the northern part of the intrusion is 
impacted by heavy off-road vehicle use and has been fragmented by the 
numerous roads that traverse the entire area. A southern site of S. 
layneae

[[Page 54354]]

that occurs across 89 ha (221 ac) was cleared in preparation for 
development and is subject to off-road vehicle use over part of the 
site (CNDDB 1994).
    Habitat for Senecio layneae within the Traverse Creek Botanical 
Area in Eldorado National Forest historically was fragmented by 
serpentine quarrying. In addition, mining claims for semi-precious 
stones and gold exist on S. layneae habitat in the Eldorado National 
Forest. Although the Eldorado National Forest is trying to withdraw 
these claims, the withdrawal action may not be achieved (Mike Foster, 
Eldorado National Forest, pers. comm. 1993).
    Destruction and fragmentation of habitat by commercial and 
residential development is the most significant and imminent threat 
facing Calystegia stebbinsii, Ceanothus roderickii, Fremontodendron 
californicum ssp. decumbens, Galium californicum ssp. sierrae, and 
Senecio layneae. Proposed residential or commercial development within 
the Pine Hill intrusion, combined with growth likely induced by 
proposed dams on the South Fork of the American River, threaten the 
majority of sites within the Pine Hill intrusion and adjacent 
serpentine in western El Dorado County and will adversely impact most 
of the range of all five taxa. Road widening, off-road vehicle use, 
garbage dumping, and other human-caused conditions associated with 
increased development threaten individual occurrences of these five 
species throughout their respective ranges.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. Overutilization is not currently known to be a 
factor for the five plants, but unrestricted collecting for scientific 
or horticultural purposes, vandalism, or excessive visits by 
individuals interested in seeing rare plants could result from 
increased publicity. Two of the species included in this proposal, 
Ceanothus roderickii and Fremontodendron californicum ssp. decumbens, 
have been used horticulturally (Schmidt 1993, Whetstone 1993), but they 
do not appear to be threatened by collection in the wild.
    C. Disease or predation. Disease is a potential factor for 
Fremontodendron californicum ssp. decumbens. In cultivation F. 
californicum ssp. decumbens is highly susceptible to a wilt disease 
that can kill the plant almost overnight (Knight 1972). This mortality 
has not been observed in the field. Plants proximate to residences may 
be vulnerable to supplemental moisture from irrigation of lawns or 
gardens. Disease is not known to be a factor for any of the other taxa.
    Intense insect and rodent predation occurs on Fremontodendron 
californicum ssp. decumbens. Boyd and Serafini (1992) studied 
reproductive attrition in F. californicum ssp. decumbens. They found 
that less than 2 percent of flower buds produced fruit because of 
predation by insects. In addition, rodents destroyed 90 percent of 
seeds under shrubs within 8 to 10 months (Boyd and Serafini 1992). 
Because F. californicum ssp. decumbens is very restricted in range and 
few individuals exist, this predation increases the chance for 
extinction as discussed under Factor E.
    Overgrazing by horses in rural residential areas within the Pine 
Hill intrusion threatens Calystegia stebbinsii, Galium californicum 
ssp. sierrae, and Senecio layneae. The horses, when confined, severely 
graze virtually all available vegetation.
    Documentation of population extirpations as a result of disease and 
predation does not exist. However, as discussed under Factors A and E, 
small population size and fragmentation increases the plants' 
vulnerability to predation.
    D. The inadequacy of existing regulatory mechanisms. Calystegia 
stebbinsii is listed as an endangered species under the CESA (chapter 
1.5 sec. 2050 et seq. of the California Fish and Game Code and Title 14 
California Code of Regulations 670.2). Ceanothus roderickii, 
Fremontodendron californicum ssp. decumbens, Galium californicum ssp. 
sierrae, and Senecio layneae are listed by the State as rare. 
Individuals are required to obtain a memorandum of understanding with 
the CDFG to possess or ``take'' a species listed under the CESA. 
Although the ``take'' of State-listed plants is prohibited (California 
Native Plant Protection Act, chapter 10 sec. 1908 and CESA, chapter 1.5 
sec. 2080), State law exempts the taking of such plants via habitat 
modification or land use changes by the owner. State law does not 
necessarily prohibit activities that could extirpate these species. 
After CDFG notifies a landowner that a State-listed plant grows on his 
or her property, State law requires that the landowner notify the 
agency ``at least 10 days in advance of changing the land use to allow 
salvage of such a plant'' (Native Plant Protection Act, chapter 10 sec. 
1913). Ten days may not allow adequate time for agencies to coordinate 
the salvage of the plants.
    The CEQA requires a full disclosure of the potential environmental 
impacts of proposed projects. The public agency with primary authority 
or jurisdiction over the project is designated as the lead agency and 
is responsible for conducting a review of the project and consulting 
with the other agencies concerned with the resources affected by the 
project. Section 15065 of the CEQA Guidelines requires a finding of 
significance if a project has the potential to ``reduce the number or 
restrict the range of a rare or endangered plant or animal.'' Species 
that are eligible for listing as rare, threatened, or endangered are 
given the same protection as species officially listed under State or 
Federal endangered species acts. Once significant effects are 
identified, the lead agency has the option to require mitigation for 
effects through changes in the project or to decide that overriding 
considerations make mitigation infeasible. In the latter case, projects 
may be approved that cause significant environmental damage, such as 
destruction of endangered species and their habitats. Protection of 
listed species through CEQA is, therefore, dependent upon the 
discretion of the lead agency.
    Section 21080(b) of CEQA allows certain projects to be exempted 
from the CEQA process. Ministerial projects, those projects that the 
public agency must approve after the applicant shows compliance with 
certain legal requirements, may be approved or carried out without 
undertaking CEQA review.
    When development occurs and individual project effects are 
mitigated in accordance with the provisions in CEQA, the developer 
often will set aside small natural areas within the development. These 
small ``set asides'' are vulnerable to the problems of habitat 
fragmentation as discussed further under Factors A and E. These small 
set asides are impractical to manage for fire (discussed further under 
Factor E). Land development and multiple ownership makes difficult the 
planning and implementation of controlled burns at the appropriate fire 
frequency necessary for the maintenance of chaparral.
    Within El Dorado County over the past several years, attempts have 
been made to establish a preserve system to protect chaparral habitat. 
An initial report on preserve sites and rare plant strategies, 
completed in November 1991, identified 12 potential preserve sites. In 
1992, El Dorado County held public workshops concerning this report. A 
rare plant advisory committee, consisting of members from the 
development community, various agencies (CDFG, BLM, Service), El Dorado 
County planning staff, CNPS, and others, was established to identify

[[Page 54355]]

feasible preserve sites, funding mechanisms, and management strategies 
for these preserves.
    The County Board of Supervisors evaluated the preserve sites 
identified by the rare plant advisory committee and eliminated the 
large southern preserve site. It approved in principle two other large 
preserve sites and the two small satellite sites; however, the majority 
of the Board would not consider any local funding to establish or 
maintain the preserves (George Clark, in litt. 1993; Kirsten Tarp, U.S. 
Fish and Wildlife Service, pers. obs. 1993). The establishment and 
maintenance of a sufficient reserve system likely will not occur 
without adequate funding.
    E. Other natural or manmade factors affecting its continued 
existence. Altered periodicity of fire (change in fire frequency) 
threatens Calystegia stebbinsii, Ceanothus roderickii, Fremontodendron 
californicum ssp. decumbens, and Senecio layneae. These plants occur 
within a fire-adapted plant community, either within chaparral or on 
the ecotone between chaparral and woodland. Fire suppression policies 
have altered natural processes within several plant communities in 
California. Historically, fire occurred in chaparral on the average of 
3 to 5 times every 100 years (Boyd 1985). As described below, fire is 
important for seed germination and seedling reestablishment by 
eliminating competition and shading, as well as replenishing nutrients 
to the soil. Without periodic fires, the previously mentioned four 
plants either do not reproduce by seed or may become shaded by other 
plants. In a study of the effects of controlled burning on three rare 
plants occurring on Pine Hill within western El Dorado County, Boyd 
(1985, 1987) found that fire killed C. roderickii shrubs, but caused a 
22-fold increase in seed germination. He also found that the growth 
rate of seedlings was greater in the burned area than in the unburned 
area.
    Fremontodendron californicum ssp. decumbens seeds require heat from 
fire to germinate. Fremontodendron californicum ssp. decumbens also 
resprouts vegetatively after a burn. In studying reproductive attrition 
in F. californicum ssp. decumbens, Boyd and Serafini (1992) found that 
seeds of F. californicum ssp. decumbens cannot successfully develop and 
germinate without the benefit of fire. They concluded that to maintain 
genetic diversity and establish plants at new localities within the 
boundaries of the current populations, sexual reproduction versus plant 
root sprouting may be necessary over long time periods. The authors 
further concluded that these goals could be accomplished by controlled 
burns.
    Initial studies also show seeds of Calystegia stebbinsii need 
disturbance by either heat or scarification for germination (Tim Nosal, 
CDFG, pers. comm. 1993; Paul Boch, Nevada County Agricultural 
Commissioner, in litt., 1993). Calystegia stebbinsii also is associated 
with fire. At the Nevada County landfill site, this species is more 
prevalent in the burned areas than in the unburned areas (Paul Boch, in 
litt. 1993). Calystegia stebbinsii is eliminated as soon as the 
surrounding chaparral grows tall enough to shade it.
    Excessive fire frequency also potentially threatens Ceanothus 
roderickii and Fremontodendron californicum ssp. decumbens. These 
plants need sufficient time between burns to set enough seed to 
replenish the soil seedbank. Mature plants of F. californicum ssp. 
decumbens also need to build up carbohydrate reserves to be able to 
resprout after a fire (Boyd 1985).
    The suppression of fire and other forms of disturbance threatens 
Senecio layneae and Calystegia stebbinsii. Limited surface disturbance 
is beneficial to these species in certain circumstances by promoting 
initial establishment (James Jokerst, pers. comm. 1993). Senecio 
layneae appears to be an early successional species that occupies 
temporary openings on gabbro-derived or serpentine and is eliminated as 
vegetation regrows in the openings (Baad and Hanna 1987).
    Competition with invasive alien vegetation, herbicide spraying, and 
unauthorized dumping threaten individual occurrences of Calystegia 
stebbinsii. An introduced species of field bindweed, Convolvulus sp., 
competes with one colony of C. stebbinsii within Nevada County (CNDDB 
1994). Trash dumping also threatens three occurrences of C. stebbinsii 
(CNDDB 1994). Herbicide spraying potentially threatens a significant 
portion of one occurrence of C. stebbinsii near Shingle Springs and 
several local occurrences adjacent to roads (Tim Nosal, pers. comm. 
1993).
    Herbicide spraying and trash dumping threaten one occurrence of 
Ceanothus roderickii (CNDDB 1994). Habitat degradation from garbage 
dumping on ridge-tops around Pine Hill degrades the habitat and is a 
minor threat to Fremontodendron californicum ssp. decumbens (James 
Wilson, Sierra College, pers. comm. 1993).
    As discussed under Factor A, habitat fragmentation may alter the 
physical environment. Chaparral plants reportedly disappeared from 
fragments 10 to 100 ha (25 to 250 ac) in size due to persistent 
disturbance and potentially to change in fire frequency (Soule et al. 
1992). In addition, habitat fragmentation increases the risks of 
extinction due to environmental, demographic, or genetic random events.
    Competition with invasive alien vegetation and shading from native 
tree and shrub species potentially threaten Senecio layneae. Several 
alien plant species, including Cytisus scoparius (Scotch broom), have 
become established within the Traverse Creek Botanical Area in Eldorado 
National Forest and potentially threaten this occurrence of S. layneae 
(Duron 1990, Pollak 1990).
    One occurrence of Senecio layneae is thought to have been 
extirpated by road-side herbicide application (Oren Pollak, The Nature 
Conservancy, pers. comm. 1993). This activity may threaten several 
other occurrences of this species.
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by these species in determining to finalize this 
rule. Proposed residential and commercial development, and habitat 
fragmentation threaten all occurrences of Calystegia stebbinsii, 
Ceanothus roderickii, Galium californicum ssp. sierrae, and 
Fremontodendron californicum ssp. decumbens on the Pine Hill intrusion 
and adjacent serpentine formations in western El Dorado County. Changes 
in fire frequency threaten C. stebbinsii, C. roderickii, and F. 
californicum ssp. decumbens, throughout their respective ranges. 
Senecio layneae is threatened by development or habitat fragmentation 
throughout a portion of its range and by changes in fire frequency 
throughout its entire range. Road construction and maintenance, 
grading, unauthorized dumping, excessive grazing practices, herbicide 
spraying, off-road vehicle use, competition from invasive alien 
vegetation, shading by native vegetation, irrigation, and mining affect 
individual occurrences of the five taxa.
    Calystegia stebbinsii, Ceanothus roderickii, Fremontodendron 
californicum ssp. decumbens, and Galium californicum ssp. sierrae are 
in danger of extinction throughout all or a significant portion of 
their ranges, and the final action, therefore, is to list them as 
endangered. Because of its wider distribution, Senecio layneae is not 
now in immediate danger of extinction throughout all or a significant 
portion of its range; however, unless current human population trends 
and development are reversed it is likely to become an endangered 
species in the

[[Page 54356]]

foreseeable future throughout all or a significant portion of its 
range. Therefore, the final action is to list Senecio layneae as 
threatened.

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 
consideration or protection and; (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
determination that such areas are essential for the conservation of the 
species. ``Conservation'' 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 and implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
the Secretary determine critical habitat concurrently with determining 
a species to be endangered or threatened. The Service finds that 
designation of critical habitat is not prudent for Calystegia 
stebbinsii, Ceanothus roderickii, Fremontodendron californicum ssp. 
decumbens, Galium californicum ssp. sierrae, and Senecio layneae at 
this time. 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.
    Because the five plants face numerous human-caused threats (see 
Factors A and E in ``Summary of Factors Affecting the Species'') and 
the five occur predominantly on private land, the publication of 
precise maps and descriptions of critical habitat in the Federal 
Register would make these plants more vulnerable to incidents of 
vandalism and, therefore, could contribute to the decline of these 
species and increase enforcement problems. The listing of these species 
as endangered and/or threatened also publicizes the rarity of these 
plants and, thus, can make these plants attractive to researchers, 
horticulturalists, or collectors of rare plants, as discussed under 
Factor B.
    Protection of the habitat of these species will be addressed 
through the recovery process and the section 7 consultation process. 
The Service believes that Federal involvement in the areas where these 
plants occur can be identified without the designation of critical 
habitat. Therefore, the Service finds that designation of critical 
habitat for these plants is not prudent at this time because such 
designation likely would increase the degree of threat from vandalism, 
collecting, or other human activities.

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 
public awareness and conservation actions by Federal, State, and local 
agencies, private organizations, and individuals. The Act provides for 
possible land acquisition and cooperation with the State and requires 
that recovery plans be developed for all listed species. The protection 
required of Federal agencies and the prohibitions against certain 
activities involving listed plants are discussed, in part, below.
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is being designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) of the Act requires Federal agencies to confer 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 insure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of such a species or to destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
must enter into formal consultation with the Service.
    At least 80 percent of the occurrences for these five species are 
on privately owned lands. However, BLM manages land supporting 
populations of all five plants, and Senecio layneae occurs on Federal 
land managed by the Forest Service. Both agencies would become involved 
with any or all of these species as they are responsible for managing 
land use of areas supporting these species.
    The Veterans Administration and the U.S. Department of Housing and 
Urban Development (Federal Home Administration loans) may become 
involved with these species through their administration of Federal 
mortgage programs. The construction and maintenance of roads and 
highways by the Federal Highway Administration, the relicensing of 
hydroelectric projects by the Federal Energy Regulatory Commission, and 
the contracting of surface waters for irrigation, industrial, or 
municipal uses by the Bureau of Reclamation would necessitate 
involvement with these species under the Act. Also, the Army Corps of 
Engineers could potentially become involved with these species through 
its permitting authority under section 404 of the Clean Water Act. By 
regulation, nationwide permits may not be issued where a federally 
listed threatened or endangered species would be affected by a proposed 
project without first completing formal consultation pursuant to 
section 7 of the Act. The presence of a listed species would highlight 
the importance of these resources. Therefore, the Army Corps of 
Engineers would be required to consult with the Service on any proposed 
dam construction or any proposed permits for fill operations that would 
adversely affect any of these plants.
    Listing Calystegia stebbinsii, Ceanothus roderickii, 
Fremontodendron californicum ssp. decumbens, and Galium californicum 
ssp. sierrae as endangered and Senecio layneae as threatened provides 
for the development of a recovery plan(s), which will bring together 
State and Federal efforts for conservation of these plants. The 
recovery plan(s) would establish a framework for agencies to coordinate 
activities and cooperate with each other in conservation efforts. The 
plan(s) would set recovery priorities and estimate costs of various 
tasks necessary to accomplish them. It also would describe site-
specific management actions necessary to achieve conservation and 
survival of these species. Additionally, pursuant to section 6 of the 
Act, the Service would be more likely to grant funds to affected states 
for management actions aiding in the protection and recovery of these 
plants.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered or 
threatened plants. All prohibitions of section 9(a)(2) of the

[[Page 54357]]

Act implemented by 50 CFR 17.61 for endangered plants, and 17.71, for 
threatened plants, apply. These prohibitions, in part, make it illegal 
for any person subject to the jurisdiction of the United States to 
import or export, transport in interstate or foreign commerce in the 
course of a commercial activity, sell or offer for sale in interstate 
or foreign commerce, or remove and reduce the species to possession 
from areas under Federal jurisdiction. In addition, for plants listed 
as endangered, the Act prohibits the malicious damage or destruction of 
any such species on areas under Federal jurisdiction and the removal, 
cutting, digging, or destroying of such plant species on any other area 
in knowing violation of any State law or regulation, including a State 
criminal trespass law. Certain exceptions to the prohibitions apply to 
agents of the Service and State conservation agencies.
    It is the policy of the Service, published in the Federal Register 
on July 1, 1994 (59 FR 34272), to identify to the maximum extent 
practicable at the time a species is listed those activities that would 
or would not constitute a violation of section 9 of the Act. The intent 
of this policy is to increase public awareness of the effect of the 
listing on proposed and ongoing activities within a species' range. 
Less than 20 percent of the occurrences of the five species are on 
public (Federal) lands. Collection, damage, or destruction of these 
species on Federal lands is prohibited, although in appropriate cases a 
Federal endangered species permit may be issued to allow collection for 
scientific or recovery purposes. Such activities on non-Federal lands 
would constitute a violation of section 9 if conducted in knowing 
violation of California State law or regulations or in violation of a 
State criminal trespass law. California requires a ten day notice be 
given before taking of plants on private land.
    Activities that are unlikely to violate section 9 include horse 
paddocking and other grazing, clearing a defensible space for fire 
protection around personal residences, and landscaping, including 
irrigation around personal residences. 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. Questions regarding whether specific 
activities will constitute a violation of section 9 should be directed 
to the Field Supervisor of the Sacramento Field Office (see ADDRESSES 
section).
    The Act and 50 CFR 17.62, 17.63, and 17.72 also provide for the 
issuance of permits to carry out otherwise prohibited activities 
involving endangered or threatened plant species under certain 
circumstances. The Service anticipates few trade permits would ever be 
sought or issued for the five species because the plants are not common 
in cultivation or in the wild. Requests for copies of the regulations 
regarding listed plants and inquiries about 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 
(phone 503/231-2063, facsimile 503/231-6243).

National Environmental Policy Act

    The Fish and Wildlife 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 Act. A notice 
outlining the Service's reasons for this determination was published in 
the Federal Register on October 25, 1983 (48 FR 49244).

Required Determinations

    The Service has examined this regulation under the Paperwork 
Reduction Act of 1995 and found it to contain no information collection 
requirements. This rulemaking was not subject to review by the Office 
of Management and Budget under Executive Order 12866.

References Cited

    A complete list of all references cited herein is available upon 
request from the Field Supervisor, Sacramento Field Office (see 
ADDRESSES section).

Author

    The primary author of this final rule is Kirsten Tarp, Sacramento 
Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
record keeping requirements, and Transportation.

Regulation Promulgation

    Accordingly, part 17, subchapter B of chapter I, title 50 of the 
Code of Federal Regulations, is amended as set forth below:

PART 17--[AMENDED]

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

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

    2. Section 17.12(h) is amended by adding the following, in 
alphabetical order under [FLOWERING PLANTS], to the List of Endangered 
and Threatened Plants to read as follows:


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

[[Page 54358]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                     Species                                                                                                                            
--------------------------------------------------        Historic range                    Family              Status      When     Critical   Special 
        Scientific name            Common name                                                                             listed    habitat     rules  
--------------------------------------------------------------------------------------------------------------------------------------------------------
       FLOWERING PLANTS                                                                                                                                 
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
                                                                                                                                                        
Calystegia stebbinsii.........  Stebbins' morning- U.S.A. (CA).................  Convolvulaceae.............         E        596         NA         NA 
                                 glory.                                                                                                                 
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
                                                                                                                                                        
Ceanothus roderickii..........  Pine Hill          U.S.A. (CA).................  Rhamnaceae.................         E        596         NA         NA 
                                 ceanothus.                                                                                                             
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
                                                                                                                                                        
Fremontodendron californicum    Pine Hill          U.S.A. (CA).................  Sterculiaceae..............         E        596         NA         NA 
 ssp. decumbens.                 flannelbush.                                                                                                           
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
                                                                                                                                                        
Galium californicum ssp.        El Dorado          U.S.A. (CA).................  Rubiaceae..................         E        596         NA         NA 
 sierrae.                        bedstraw.                                                                                                              
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
                                                                                                                                                        
Senecio layneae...............  Layne's            U.S.A. (CA).................  Asteraceae.................         T        596         NA         NA 
                                 butterweed.                                                                                                            
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: September 23, 1996.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 96-26740 Filed 10-17-96; 8:45 am]

BILLING CODE 4310-55-P


