Endangered and Threatened Wildlife and Plants; Proposed Endangered Status for Polygonum hickmanii (Scotts Valley polygonum)

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: November 9, 2000 (Volume 65, Number 218)]
[Proposed Rules]
[Page 67335-67343]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09no00-38]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH70

Endangered and Threatened Wildlife and Plants; Proposed
Endangered Status for Polygonum hickmanii (Scotts Valley polygonum)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose
endangered status pursuant to the Endangered Species Act (Act) of 1973,
as amended, for Polygonum hickmanii (Scotts Valley polygonum).
Polygonum hickmanii is restricted to two sites in northern Scotts
Valley, Santa Cruz County, California. The plant is threatened by
alteration of habitat due to urban development and associated
disturbances, displacement by nonnative grasses, and the increased
chance of extinction due to the small numbers of individuals and
limited amount of habitat occupied by this species. The effects of
these threats are exacerbated by the inadequate design of preserves
meant to protect the species. This proposed rule, if made final, would
extend the Act's protection to this plant.

DATES: All comments, including written and email from all interested
parties must be received by January 8, 2001. Public hearing requests
must be received by December 26, 2000.

ADDRESSES: If you wish to comment, you may submit your comments and
materials concerning this proposal by any one of several methods:
1. You may submit written comments to the Field Supervisor, Ventura
Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola
Road, Suite B, Ventura, California 93003.
2. You may send comments by e-mail to svpolygonum@r1.fws.gov. See
the Public Comments Solicited section below for file format and other
information about electronic filing.
3. You may hand-deliver comments to our Ventura Fish and Wildlife
office at 2493 Portola Road, Suite B, Ventura, California.
Comments and materials received, as well as supporting
documentation used in the preparation of this proposed rule, will be
available for public inspection, by appointment, during normal business
hours at the above address.

FOR FURTHER INFORMATION CONTACT: Carl Benz, Assistant Field Supervisor,
Listing and Recovery, Ventura Fish and Wildlife Office at the above
address or telephone number 805/644-1766 or facsimile 805/644-3958.

SUPPLEMENTARY INFORMATION:

Background

Polygonum hickmanii (Scotts Valley polygonum) is a recently
described endemic species from Scotts Valley, Santa Cruz County,
California (Hinds and Morgan 1995). The species was named after James
C. Hickman, editor of the Jepson Manual (1993) and author of the
chapter on the genus Polygonum in the same reference. He concurred with
Morgan's assessment that the taxon was distinct (J.C. Hickman, in litt.
1991), but died before coauthoring the publication of a name. Randy
Morgan made the type collection in 1993 from a ``grassland N of Navarra
Drive, W of Carbonero Creek'' (Hinds and Morgan 1995). The plant is a
small, erect, taprooted annual in the buckwheat family (Polygonaceae).
It grows from 2 to 5 centimeters (cm) (1 to 2 inches (in.)) tall, and
can be either single stemmed or profusely branching near the base in
more mature plants. The linear-shaped leaves are 0.5 to 3.5 cm (0.2 to
1.4 in.) long and 1 to 1.5 cm (0.4 to 0.6 in.) wide and tipped with a
sharp point. The single white flowers consist of two outer tepals
(petal-like structure) and three inner tepals and are found in the
axils of the bracteal leaves (modified leaves near the flower). The
plant flowers from late May to August. Seed production ranges from a
few dozen seeds in a typical individual to as many as two hundred in a
particularly robust individual (Randy Morgan, biological consultant,
pers. comm. 1998). The nearest known location of a closely related
species, P. parryi, is at Mount Hamilton, about 48 kilometers (km) (30
miles (mi)) inland. Polygonum hickmanii differs from P. parryi in its
larger white flowers, longer leaves, larger anthers and achenes, and
longer, straight stem sheath (Hinds and Morgan

[[Page 67336]]

1995). According to Harold Hinds, author for the genus Polygonum in an
upcoming volume of the Flora of North America (Flora of North America
Editorial Committee, in prep.), the distinctness of P. hickmanii as a
species will continue to be recognized in that volume (Harold Hinds,
University of New Brunswick, pers. comm. 1998).
The available information suggests that Polygonum hickmanii has
always been limited in distribution to the northern Scotts Valley area
in Santa Cruz County, California. Two bodies of evidence support this
theory. First, none of the herbarium collections of other Polygonum
species that were checked in preparation of the publication of the name
for P. hickmanii matched those collected from Scotts Valley. Herbaria
that were searched included the Dudley Herbarium at Stanford
University, the Jepson and University of California (UC) herbaria
located at UC Berkeley, and the herbarium at the Missouri Botanic
Garden (H. Hinds, in litt. 1998; R. Morgan, pers. comm. 1998).
Secondly, predictive searches of other potentially suitable habitat in
Santa Cruz County (based on soil type, local climate, and associated
species) have failed to locate any additional colonies of P. hickmanii
(R. Morgan, pers. comm. 1998).
Polygonum hickmanii is known from two sites about 0.6 km (1 mi)
apart at the northern end of Scotts Valley. The plant is found on
gently sloping to nearly level fine-textured shallow soils over
outcrops of Santa Cruz mudstone and Purisima sandstone (Hinds and
Morgan 1995). It occurs with the endangered Chorizanthe robusta var.
hartwegii (Scotts Valley spineflower) (59 FR 5499) and other small
annual herbs in patches within a more extensive annual grassland
habitat. These small patches have been referred to as ``wildflower
fields'' because they support a large number of native herbs, in
contrast to the adjacent annual grasslands that support a greater
number of nonnative grasses and herbs. While the wildflower fields are
underlain by shallow, well-draining soils, the surrounding annual
grasslands are underlain by deeper soils with a greater water-holding
capacity, and therefore more easily support the growth of nonnative
grasses and herbs. The surface soil texture in the wildflower fields
tends to be consolidated and crusty rather than loose and sandy (Biotic
Resources Group (BRG) 1998). Elevation of the sites is from 215 to 246
meters (m) (700 to 800 feet (ft)) (Hinds and Morgan 1995). The climate
in the city of Santa Cruz, 13 km (8 mi) to the south, is characterized
by an average of 77 cm (30 in.) of rain per year, and an average
temperature of 14 degrees Celsius (57 degrees Fahrenheit), while the
city of Los Gatos, 16 km (10 mi) to the north, averages 120 cm (51 in.)
of rain per year, with an average temperature of 15 degrees Celsius (58
degrees Fahrenheit) (Worldclimate 1998).
Polygonum hickmanii is associated with a number of native herbs
including Chorizanthe robusta var. hartwegii, Lasthenia californica
(goldfields), Minuartia douglasii (sandwort), Minuartia californica
(California sandwort), Gilia clivorum (gilia), Castilleja densiflora
(owl's clover), Lupinus nanus (sky lupine), Brodiaea terrestris
(brodiaea), Stylocline amphibola (Mount Diablo cottonweed), Trifolium
grayii (Gray's clover), and Hemizonia corymbosa (coast tarplant).
Nonnative species present include Filago gallica (filago) and Vulpia
myuros (rattail) (California Natural Diversity Data Base (CNDDB) 1998;
R. Morgan, pers. comm. 1998). In many cases, the habitat also supports
a crust of mosses and lichens (BRG 1998).
Morgan observed a sphecid wasp (family Sphecidae) visitation to an
individual Polygonum hickmanii (R. Morgan, pers. comm. 1998). Other
potential pollinators have not been identified at this time, and the
degree to which P. hickmanii depends on insect pollinators (rather than
being self-pollinated) has not been determined.
For purposes of this rule, a cluster of individuals of Polygonum
hickmanii will be referred to as a ``colony.'' Because of the close
proximity of many of the clusters to each other (less than 0.4 km (0.2
mi) apart), it is uncertain whether these clusters are patches within a
metapopulation (population consisting of interconnected
subpopulations), true colonies, or separate populations. The
approximate area occupied by any one colony ranges from the smallest at
1.5 m by 1.5 m (5 ft by 5 ft) to the largest at 15 m by 9 m (50 ft by
30 ft). There are approximately 11 colonies of P. hickmanii in total,
which together occupy less than 0.4 hectare (ha) (1 acre (ac)).
The Polygonum hickmanii colonies are split between two sites. The
first site is located north of Casa Way and west of Glenwood Drive in
northern Scotts Valley. Referred to as the Glenwood site, it contains
five colonies on two parcels of land. One of these colonies is situated
within a 3.6 ha (9 ac) preserve on a 19.4 ha (48 ac) parcel that is
owned by the Scotts Valley Unified School District and is referred to
as the ``School District'' colony (Denise Duffy and Associates 1998).
The other four colonies at the Glenwood site are located approximately
0.21 km (0.13 mi) to the west of the School District colony, on a
parcel of land owned by the Salvation Army (CNDDB 1998). These four
colonies are referred to as the ``Salvation Army'' colonies.
The second site contains six colonies and is referred to as the
``Polo Ranch'' site. Located just east of Highway 17 and north of
Navarra Road in northern Scotts Valley, the Polo Ranch site is
approximately 1.6 km (1 mi) east of the Salvation Army and School
District colonies. These six colonies are situated within 0.2 km (0.1
mi) of one another, and all of these colonies occur on a parcel owned
by Greystone Homes (Kathleen Lyons, BRG, in litt. 1997).
Being a short-lived annual species, the total number of individuals
can vary from year to year. In 1998, the total number of individuals
found at the Glenwood site was 153 on the School District parcel and
approximately 2,000 on the Salvation Army parcel (K. Lyons, pers. comm.
1998). In 1997, the total number of individuals on the Polo Ranch site
was approximately 2,140 (K. Lyons in litt. 1997).
Polygonum hickmanii is threatened with extinction by habitat
alteration due to secondary impacts of urban development occurring
within close proximity. Urban development includes the proposed
construction and operation of a high school; installation and
maintenance of water delivery pipelines, access roads, and water tanks;
and currently existing and proposed housing. Results of a field survey
conducted on the School District colony identified that the P.
hickmanii may occur in the vicinity of the alternative access routes to
the tank sites and that potential impacts from the construction
activities may be significant (Service, in litt. 1998).
The kinds of habitat alterations expected to impact Polygonum
hickmanii as a result of development include changes in hydrologic
conditions; soil compaction; increased disturbance by humans, pets, and
bicycle traffic; the inadvertent application of herbicides and
pesticides; dumping of yard wastes; and the introduction of nonnative
species. These habitat alterations are substantial enough that they are
even destabilizing the proposed preserves and open space areas intended
to protect P. hickmanii and making these areas inadequate for
maintaining viable populations of this species (Service, in litt.
1998). Studies on habitat fragmentation and preserves established in
urbanized settings have shown that these preserves gradually become
destabilized from external forces (i.e., changes in the hydrologic

[[Page 67337]]

conditions, soil compaction, etc.), resulting in preserves that are no
longer able to support the species they were established to protect
(Kelly and Rotenberry 1993).
The chance of random extinction for Polygonum hickmanii is also
increased due to the small numbers of individuals and limited area
occupied by the species (Shaffer 1981).

Previous Federal Action

We first became aware of Polygonum hickmanii in the course of
proposing to list Chorizanthe robusta var. hartwegii for Federal
listing in 1992. At that time, however, a name for the taxon had not
formally been published, and so it could not be considered for listing
under the Act. Once the name, P. hickmanii, was published by Hinds and
Morgan (1995), we reviewed information in our existing files, in the
California Natural Diversity Data Base, and new information on proposed
projects being submitted to us for our review, and determined that
sufficient information existed to believe that listing might be
warranted. Polygonum hickmanii was included in the list of candidate
species published in the Federal Register on October 25, 1999 (64 FR
57534).
The processing of this proposed rule conforms with our current
Listing Priority Guidance published in the Federal Register on October
22, 1999 (64 FR 57114). The guidance clarified the order in which we
process rulemakings. Highest priority is processing emergency listing
rules for any species determined to face a significant and imminent
risk to its well-being. Second priority is processing final
determinations on proposed additions to the lists of endangered and
threatened wildlife and plants. Third priority is processing new
proposals to add species to the lists (such as this proposed rule for
Polygonum hickmanii). The processing of administrative petition
findings (petitions filed under section 4 of the Act) is the fourth
priority.

Summary of Factors Affecting the Species

Section 4(a)(1) of the Act (16 U.S.C. 1531 et seq.) and regulations
(50 CFR part 424) promulgated to implement the Act set forth the
procedures for adding species to the Federal lists. A species may be
determined to be an endangered or threatened species due to one or more
of the five factors described in section 4(a)(1). These factors and
their application to Polygonum hickmanii H. R. Hinds and R. Morgan are
as follows:
A. The present or threatened destruction, modification, or
curtailment of its habitat or range. In addition to the colonies of
Polygonum hickmanii at the Glenwood and Polo Ranch sites, other
colonies of P. hickmanii may have occurred in Scotts Valley prior to
publication of the species name in 1995. An existing housing
development bordering the south side of the Glenwood site (Glen View)
was built in the mid-1980s, and one development bordering the south
side of the Polo Ranch site (Navarra Drive) was built in the 1970s. The
environmental analyses done at those times would not have recognized P.
hickmanii as a distinct taxon.
None of the occupied habitat for Polygonum hickmanii is targeted
for direct destruction; however, all occupied habitat will be subject
to habitat alteration resulting from current and proposed projects. At
the Glenwood site, construction of a high school was initiated in June
1998. The colony of P. hickmanii on this site is within an area
designated as a grassland preserve intended to protect a number of
sensitive plant species, including P. hickmanii, Minuartia californica
(California sandwort), Plagiobothrys diffusus (San Francisco popcorn
flower), and the endangered Chorizanthe robusta var. hartwegii. The
preserve is 2 ha (4 ac) in size, and is adjacent to a wetland preserve
of slightly smaller size. The two preserves combined form a 3.6 ha (9
ac) area, linear in shape, sandwiched between high school playing
fields to the north and the existing Glen View development to the
south. The colony of P. hickmanii is 18 m (60 ft) away from the edge of
the preserve nearest to the playing field. A management plan for the
grasslands preserve includes prescriptions for boundary protection,
habitat enhancement, control of nonnative plant species, and a 10-year
monitoring program (BRG 1998). Although the effectiveness of this
management plan has not been demonstrated yet, P. hickmanii will likely
still be subject to habitat alteration due to the small size of the
preserve and its proximity to other land uses. Problems with managing
small preserves within urban areas have been documented previously
(Jensen 1987; Clark et al. 1998; Howald 1993; Service 1995). See Factor
E for additional discussion on the failure of preserve design to
provide for long-term conservation.
The kinds of habitat alteration that are anticipated to result from
the high school project include changes in surface hydrologic
conditions due to the increased watering of the ballfield up slope from
the preserve; changes in surface water quality due to the application
of fertilizers, herbicides and pesticides on the ballfield and adjacent
areas up slope from the preserve; an increase in the number of
nonnative plant species that will likely invade from adjacent newly
altered areas; and an increase in the amount of soil disturbance and
soil compaction caused by the increased numbers of students, pets, and
bicycles coming into the preserve from adjacent areas. The nature of
the thin soils and the crusts of mosses and lichens they support make
them particularly vulnerable to any form of surface disturbance
(Belknap 1990).
The Scotts Valley Water District recently approved the construction
of a series of pipelines, maintenance roads, and tanks to distribute
recycled water in the northern Scotts Valley area (EMC Planning Group
1998; Scotts Valley Water District 1998). One pipeline and an all-
weather maintenance road pass through the southwestern corner of the
preserve, then continue to the north and west onto a parcel owned by
the Salvation Army where a water tank would be installed. As originally
proposed, this route was to come within 23 m (75 ft) of the colonies of
Polygonum hickmanii on the Salvation Army parcel, and within 18 m (60
ft) of the endangered Chorizanthe robusta var. hartwegii (K. Lyons,
pers. comm. 1998). However, when road grading was initiated in July
1999, grading plans were not followed closely. Moreover, measures to
minimize and mitigate impacts to sensitive resources included in the
approved project were not implemented. As a result, road grading came
to within 3 m (10 ft) of P. hickmanii, and to within 6 m (20 ft) of C.
r. var. hartwegii (Vince Cheap, California Native Plant Society, in
litt. 1999).
The kinds of habitat alteration that are anticipated to impact P.
hickmanii from the Water District's project include changes in surface
hydrology due to the placement of the road upslope from the colonies;
changes in surface water quality due to the application of herbicides,
pesticides, and tackifiers (dust reducing substances) on the road and
roadsides upslope from the colonies; an increase in the amount of soil
siltation from the up slope roadbank; soil compaction and disturbance;
and an increase in the number of nonnative plant species that will
likely invade from the road.
A recent visit to the Glenwood site confirmed that the nonnative
plant Cytisus scoparius (Scotch broom) has invaded to within a few feet
of one of the colonies of Polygonum hickmanii in the last few years
(Carole Kelley,

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Friends of Scotts Valley, per. comm. 1998). If not controlled, this
invasive plant could quickly eliminate habitat for the P. hickmanii.
The California Department of Food and Agriculture has declared Cytisus
scoparius and Cytisus monspessulanus (French broom) pest species, which
in some places forms impenetrable thickets that displace native
vegetation and lower habitat value for wildlife (Habitat Restoration
Group, no date).
A housing development proposed for the Polo Ranch site includes 74
housing units clustered on 7.3 of 47.0 ha (18 of 116 ac), with the
remaining 38 ha (95 acres) kept as open space (City of Scotts Valley
1998). The development, as currently proposed, places houses and
roadways within 18 m (60 ft) or closer to five out of six colonies of
Polygonum hickmanii. Moreover, not only will the development then
separate the colonies from each other, three of the six colonies will
be isolated on all sides either by existing or proposed dwellings and
roadways.
Alterations of habitat for Polygonum hickmanii that are likely to
occur as a result of the Polo Ranch development are changes in surface
hydrologic conditions due to the grading of roads and lots; soil
compaction and disturbance by humans, pets, and bicycle traffic;
inadvertent (i.e., aerial drift) and intentional application of
herbicides, pesticides, and fertilizers on roadsides and yards;
inadvertent introduction of nonnative species (both weedy and
ornamental), and dumping of yard wastes. Examples of alteration of
habitat that have occurred on grasslands north of the backyards of
existing housing along Navarra Drive (along the south edge of the Polo
Ranch property) include gates and pathways leading from backyards onto
the grassland, ivy creeping over fences and onto the grassland, oaks
(Quercus sp.) planted within the grassland, and shade created by
planted backyard trees (K. Lyons, pers. comm. 1998).
Although two of the projects (high school and recycled water
distribution system) include plans for conservation of Polygonum
hickmanii through development-related mitigation, and the third project
(Polo Ranch) would be expected to do so as well, the successful
implementation of these mitigation plans has not been demonstrated. In
particular, the size and characteristics of preserve areas, open
spaces, and management actions prescribed through the environmental
review process (see Factor D) are unlikely to be biologically adequate
to meet the goal of long-term conservation of P. hickmanii and its
habitat. In addition, since P. hickmanii colonies will be in preserves
or open spaces that are small in area, support small numbers of
individuals, whose habitat is degraded, or that continue to receive
secondary effects of adjacent human activities, they become more
vulnerable to extirpation from naturally occurring events (see Factor
E).
All habitat for Polygonum hickmanii is also threatened in general
by the encroachment of nonnative grasses from the surrounding
grasslands. Although several species of nonnative grass (e.g., Vulpia
myuros) grow within the wildflower fields, these patches for the most
part do not support the abundant growth of nonnative grasses (Bromus
sp.) that occur on the adjacent, more mesic grassland habitat. These
nonnative grasses on the mesic grasslands do not compete with P.
hickmanii in the classic sense (competition for light, water,
nutrients). However, the tall culms (stems) of nonnative grasses can
physically drape over patches of wildflower field habitat, particularly
the smaller patches, and deposit a mat of litter (thatch) that
physically prohibits the species within the wildflower field from
appearing. Because nonnative grasses and herbs produce more biomass
than their native counterparts, they also produce more litter. Although
decomposition rates for nonnative species are likely no slower than
those of native species, their faster rate of biomass production
results in a greater accumulation of litter. Other cases of native
species being overtaken by litter accumulation produced by nonnatives
have been noted in desert ecosystems (Jayne Belknap, Biological
Resources Division, pers. comm. 1998) and on the California Channel
Islands (Rob Klinger, The Nature Conservancy, pers. comm. 1998).
B. Overutilization for commercial, recreational, scientific, or
educational purposes. Overutilization or vandalism are not known to be
threats to this species.
C. Disease or predation. We found no evidence that disease is a
factor affecting this species. Predation by cattle, livestock, or other
wildlife species is not known to occur.
D. The inadequacy of existing regulatory mechanisms. Polygonum
hickmanii currently receives no protection under Federal law, and it is
not currently listed by the State of California.
Chorizanthe robusta var. hartwegiana, an endangered species, occurs
within the same wildflower field habitat as Polygonum hickmanii.
Although C. r. var. hartwegiana is listed, it remains vulnerable to all
the same threats that face P. hickmanii. Therefore, the association of
P. hickmanii with the C. r. var. hartwegiana in the same wildlflower
field habitat confers little regulatory protection on the P. hickmanii.
However, there may be some benefit to P. hickmanii through the
California Environmental Quality Act (CEQA) process described below.
The CEQA requires a full disclosure of the potential environmental
impacts of proposed projects. The lead agency is the public agency with
primary authority or jurisdiction over the project, and is responsible
for conducting a review of the project and consulting with other
agencies concerned with the resources affected by the project. Section
15065 of the CEQA Guidelines requires a finding of significance if a
project potentially ``reduce(s) the number or restrict(s) the range of
a rare or endangered plant or animal.'' Species eligible for State
listing as threatened or endangered, but not listed, are given the same
protection as those species officially listed by State or Federal
governments. The Rare Plant Scientific Advisory Committee for the
California Native Plant Society has determined that Polygonum hickmanii
meets the criteria for being included on CNPS' ``List 1B.'' The plants
on List 1B meet the definitions of sec. 1901, chapter 10 of the
California Department of Fish and Game Code, and are therefore eligible
for State listing. It is mandatory that plants on List 1B be fully
considered during preparation of environmental documents relating to
CEQA. Once significant effects are identified, the lead agency may
require mitigation for effects through changes in the project or
alternatively, the lead agency may decide that overriding
considerations make mitigation infeasible. In the latter case, projects
may be approved that cause significant environmental damage, such as
destruction of listed species. Therefore, the protection of listed
species through CEQA depends upon the discretion of the lead agency
involved.
CEQA approval for the construction of the Polo Ranch development
falls under the purview of the City of Scotts Valley. However, the
Scotts Valley Unified School District was the lead CEQA agency for
approval of the Glenwood High School project, while the Scotts Valley
Water District acted as the lead CEQA agency for approval of the
recycled water distribution project. With at least three local agencies
separately approving development proposals, a consistent, appropriate
approach to managing such small preserves and adequately mitigating
project impacts may be very difficult to develop and maintain.

[[Page 67339]]

Inclusion of mitigation measures in a project approved through the
CEQA process does not guarantee that such measures are implemented. The
recycled water distribution project approved by the Scotts Valley Water
District included measures to avoid and mitigate impacts to sensitive
resources, including those for Polygonum hickmanii and Chorizanthe
robusta var. hartwegii. However, grading for this project was initiated
without implementing those measures, which resulted in a much narrower
buffer zone left between the plant populations and the grading activity
(Carl Wilcox, California Department of Fish and Game, in litt. 1999).
Certain local agencies are exempt from city and county regulations
in accordance with chapter 1, paragraphs 53094 and 53096 of the State
of California regulations on planning, zoning, and development laws
(Governor's Office of Planning and Research 1996). In the case of the
High School project, the Scotts Valley Unified School District is
exempt from local permitting requirements; therefore, no permits or
approvals were required from the City of Scotts Valley. In the case of
the recycled water distribution project, the Scotts Valley Water
District is similarly exempted; therefore, no permits or approvals are
required from either the City of Scotts Valley or the County of Santa
Cruz. In July 1999, the Water District proceeded with road and tank pad
grading for this project. This activity was initiated without
fulfilling mitigation measures that called for sensitive areas to be
flagged and fenced ahead of time, and resulted in grading that went
beyond the scope of work for the project. Although the County of Santa
Cruz notified the Water District that the additional grading was not
exempted from applicable regulations, the only consequence is that the
county has requested that the damaged areas are satisfactorily restored
(Alvin James, County of Santa Cruz, in litt. 1999).
The establishment and implementation of a management plan for the
preserve at the High School site does not provide for enforcement
authority to maintain the physical integrity of the preserve. Few
regulatory mechanisms are available to assist in protection of the high
school preserve. State law addressing trespass is found at California
Penal Code Section 554 and 555 (California State Legislature 2000). To
date, however, these regulations have not been enforced in cases of
trespass at the preserve (Carole Kelley, Friends of Scotts Valley,
pers. comm. 1999).
E. Other natural or manmade factors affecting its continued
existence. The design of preserves and open spaces related to project
mitigation is insufficient to provide for the long-term conservation of
Polygonum hickmanii and other sensitive species that occur in the
wildflower fields in Scotts Valley. Additionally, the threat of random
extinction is increased in small populations of limited distribution.
Inadequate preserve design. The need for adequate preserve design
has been discussed by many biologists (Jensen 1987; Shafer 1995;
Rathcke and Jules 1993; Kelly and Rotenberry 1993). To increase the
certainty that a species will persist over a given interval of time,
adequate habitat needs to be protected and land uses adjacent to the
preserve need to be compatible with maintaining the integrity of the
preserve. Habitat is not restricted solely to the area actually
occupied by the species. It must include an area that is large enough
to maintain the ecological functions upon which the species depends,
and have a ratio of edge to total area that minimizes fragmentation and
edge effects.
Failure to protect sufficient habitat results in the eventual
decline of the target species. Small preserves adjacent to urban areas
have additional stress placed on them due to the need to manage a host
of human-caused impacts. The increased stress urban wildland areas
receive has been documented by many authors (Keeley 1983). Although
little work has focused on the effects of habitat alteration and
fragmentation on native grassland habitat in California, the effects
would likely be similar to those documented for other native California
habitats. Clark et al. (1998) discussed management problems encountered
by small vernal pool preserves surrounded by an urban park and
residential development in the Sacramento area, and they identified the
following threats to the habitat--off-road motorized vehicle, foot,
horse, and bicycle traffic; plant and animal collection; herbicides;
changes in hydrology; garbage; invasive exotic plants; feral and
domestic animals; vegetation management for fire control; and
vandalism.
We previously listed serpentine-endemic species in the San
Francisco Bay area, in part, due to the impacts these taxa were
subjected to in urban wildland areas (Service 1995; 60 FR 6671). For
example, Cordylanthus tenuis ssp. capillaris (Pennell's bird's-beak) is
threatened with mowing and spraying along roadsides, illegal dumping of
household trash, and disturbance that facilitates the invasion of
nonnative species (60 FR 6671). Calochortus tiburonensis (Tiburon
mariposa lily) is threatened by bicycle, motorbike, and pedestrian
traffic even though it occurs within a fenced preserve area; and
Cirsium fontinale var. fontinale (Fountain thistle) is threatened by
dumping of garden debris from households on a ridge above the plants
(60 FR 6671). In the case of Polygonum hickmanii at the School District
Preserve, the site has remained unfenced and unsigned, and has been
subject to bicycle traffic, heavy equipment traffic, and served as a
repository for yard waste (C. Kelley, in litt. 1999). In addition, a
management plan for the preserve has not yet been completed.
Pentachaeta lyonii (Lyon's pentachaeta) is an endangered plant
species that is restricted to less than 10 sites in western Los Angeles
and eastern Ventura County. It is similar to Polygonum hickmanii in
that its habitat consists of thin-soiled patches within a larger
grassland community that has deeper soils. In the early 1990s, small
patches of Pentachaeta lyonii were set aside as preserves as mitigation
for a housing development and golf course in Westlake Village. At hole
10 on the golf course, a 1,394 square-meter (1,500 square-foot) area
was set aside for a small population of the pentachaeta; however, the
population dwindled over the next six years and finally disappeared
(Carl Wishner, Envicom, pers. comm. 1998). Attempts to transplant bare
root seedlings into the site resulted in the reappearance of the
species the following year, but with numbers again dwindling in
subsequent years. Habitat for the plant has been rendered unsuitable
for several reasons including overspray from the sprinkler system that
increased soil moisture, which in turn promoted the growth of weedy
nonnative herbs and grasses that compete with the pentachaeta.
Overspray also resulted in the mildew of pentachaeta flower heads,
which then did not produce seed. Adjacent landscaped areas provide
cover that harbors populations of rabbits, birds, snails and insects
that were not previously present. In combination, these animals have
consumed much of the vegetation along a 1.5 to 2.4 m (5 to 8 ft) wide
swath of vegetation, including pentachaeta, on the perimeter of the
preserve area.
Alberts et al. (1993) documented the effects of habitat
fragmentation on coastal scrub in southern California. Surveys of
native and introduced plant species conducted in 25 patches of coastal
scrub found that plant species richness and the ratio of native species
to nonnative species was correlated

[[Page 67340]]

with several variables--larger and more recently isolated patches
supported more species; fragments with longer perimeters contained more
weed species; and older fragments and those with artificially
supplemented water sources supported higher numbers of escaped
ornamentals. Human disturbance, including clearing of vegetation,
addition of nonnatural water supplies, and disruption of fire regimes,
has most likely contributed to the loss of native species and
subsequent invasion of nonnative species into the patches.
Habitat fragmentation also affects plant-pollinator interactions in
a number of ways. The abundance of specific pollinators may decline due
to the elimination of nesting sites, decreases in food source plants
due to changes in composition of the plant community, increases in
competition from nonnative pollinators, and increases in the exposure
to pesticides (Rathcke and Jules 1993; Jennersten 1988; Kearns and
Inouye 1997). In plant species that are obligate outcrossers (those
that require pollinators to effect seed development), reduced
pollinator availability can result in limited seed production. Even if
a plant species is not an obligate outcrosser, genetic variability
within the plant population can be reduced with potentially deleterious
long-term consequences (see discussion below on random extinction).
In the case of Polygonum hickmanii, ecological processes that would
be important to maintain within preserve areas include, but are not
limited to, the integrity of edaphic (soil) conditions, hydrologic
processes (surface flows), the associated ``wildflower field'' plant
community, plant-pollinator interactions, and seed dispersal
mechanisms. Maintaining such processes will be severely compromised by
the small size of the areas being set aside as preserves or open
spaces, the extent of edge subject to external influences, and the
particular kinds of adjacent land use to which the preserves will be
subject. Threats resulting from alteration of habitat due to adjacent
changes in land use (discussed in Factor A) are exacerbated by the
small size of the preserves and the proximity of nearly all of the
colonies to the edges of the preserves or open spaces, or to roads.
Distances of less than 24 m (80 ft) are not considered to be highly
effective at buffering from chemical pollutants (e.g., herbicides,
pesticides, and other contaminants) (Conservation Biology Institute
2000). Depending on site configuration or circumstances, buffers of up
to 91 m (300 ft) may not be adequate to provide sufficient buffering
from invasive animals and increased fire frequency (Conservation
Biology Institute 2000) .
Random extinction. Species with few populations and individuals are
vulnerable to the threat of naturally occurring events, causing
extinction through mechanisms operating either at the genetic level,
the population level, or at the landscape level. The loss of genetic
diversity may decrease a species' ability to persist within the
environment, often manifested as a decrease in reproductive success. At
the population level, species with few populations or individuals may
be subject to forces that affect their ability to complete their life
cycles successfully. For example, the loss of pollinators may reduce
successful seed set, or if the host plant is at least partially self-
compatible, may reduce the degree of genetic variability within
species. At the landscape level, random natural events, such as storms,
drought, or fire could destroy a significant percentage of a species'
individuals or entire populations. The restriction of colonies to small
sites increases their risk of extinction from such naturally occurring
events.
The genetic characteristics of Polygonum hickmanii have not been
investigated; therefore, the degree to which these characteristics
contribute to the likelihood of P. hickmanii being vulnerable to
extinction for these reasons is unknown. However, random events
operating at the population and landscape levels clearly have the
potential for increasing the chance of extinction for P. hickmanii.
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
faced by this taxon in determining to propose this rule. Based on this
evaluation, the appropriate action is to propose listing Polygonum
hickmanii (Scotts Valley polygonum) as endangered. The species is
threatened with extinction due to habitat alteration resulting
primarily from urban development, inadequate preserve design, and
vulnerability to naturally occurring events due to low numbers of
individuals and occupied acreage of the entire taxon. All of the
colonies are on private lands. Although conservation efforts have been
prescribed as part of mitigation for two of the three projects (high
school and recycled water distribution project), and are expected to be
proposed for the third project (Polo Ranch development), the small
extent of occupied habitat, small colony sizes, and imminent threats
lessen the chance that such efforts will lead to secure, self-
sustaining colonies at these sites.

Critical Habitat

Critical habitat is defined in section 3 of the Act as the specific
areas within the geographic 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 essential to the conservation of the species,
and that may require special management consideration or protection,
and specific areas outside the geographic 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 that are necessary to bring an endangered
species or a threatened species to the point at which listing under Act
is no longer necessary.
Critical habitat designation, by definition, directly affects only
Federal agency actions through consultation under section 7(a)(2) of
the Act. 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 a listed species or destroy or
adversely modify its critical habitat.
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, we designate critical habitat at the time the species
is determined to be endangered or threatened. Our regulations (50 CFR
424.12(a)(1)) state that the designation of critical habitat is not
prudent when one or both of the following situations exist--(1) the
species is threatened by taking or other human activity, and
identification of critical habitat can be expected to increase the
degree of threat to the species, or (2) such designation of critical
habitat would not be beneficial to the species.
Our Final Listing Priority Guidance for FY 2000 (64 FR 57114)
states that the processing of critical habitat determinations (prudency
and determinability decisions) and proposed or final designations of
critical habitat will no longer be subject to prioritization under the
Listing Priority Guidance. Critical habitat determinations, which were
previously included in final listing rules published in the Federal
Register, may now be processed separately, in which case stand-alone
critical habitat determinations will be published as notices in the
Federal Register.

[[Page 67341]]

We believe that critical habitat is prudent for Polygonum
hickmanii. In the last few years, a series of court decisions have
overturned Service determinations regarding a variety of species that
designation of critical habitat would not be prudent (e.g., Natural
Resources Defense Council v. U.S. Department of the Interior, 113 F. 3d
1121 (9th Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F.
Supp. 2d 1280 (D. Hawaii 1998)). Based on the standards applied in
those judicial opinions, we believe that designation of critical
habitat would be prudent for P. hickmanii.
Due to the small number of populations, Polygonum hickmanii is
vulnerable to unrestricted collection, vandalism, or other disturbance.
We are concerned that these threats might be exacerbated by the
publication of critical habitat maps and further dissemination of
locational information. However, at this time we do not have specific
evidence of vandalism, collection, or trade of P. hickmanii or any
similarly situated species. Consequently, consistent with applicable
regulations (50 CFR 424.12(a)(1)(i)) and recent case law, we do not
expect that the identification of critical habitat will increase the
degree of threat to this species of taking or other human activity.
In the absence of a finding that critical habitat would increase
threats to a species, if there are any benefits to critical habitat
designation, then a prudent finding is warranted. In the case of this
species, there may be some benefits to designation of critical habitat.
The primary regulatory effect of critical habitat is the section 7
requirement that Federal agencies refrain from taking any action that
destroys or adversely modifies critical habitat. While a critical
habitat designation for habitat currently occupied by this species
would not be likely to change the section 7 consultation outcome
because an action that destroys or adversely modifies such critical
habitat would also be likely to result in jeopardy to the species,
there may be instances where section 7 consultation would be triggered
only if critical habitat is designated. Examples could include
unoccupied habitat or occupied habitat that may become unoccupied in
the future. There may also be some educational or informational
benefits to designating critical habitat. Therefore, we propose that
critical habitat is prudent for Polygonum hickmanii.
We are deferring the proposed critical habitat designation for
Polygonum hickmanii until a later date. The reason for this is that P.
hickmanii occurs in the same general areas as Chorizanthe robusta var.
hartwegii. We intend to concurrently propose critical habitat for both
of these species. Also, this deferral will allow us to concentrate our
limited resources on higher priority critical habitat and other listing
actions, while allowing us to put in place protections needed for the
conservation of P. hickmanii without further delay. We will also make
the final critical habitat determination separately from the final
listing determination for P. hickmanii.

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
and private agencies, groups, and individuals. The Act provides for
possible land acquisition and cooperation with the States, and requires
that we carry out recovery actions for all listed species. Together
with our partners, we would initiate such actions following listing.
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) 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 the species or to destroy or adversely modify
its critical habitat, if any has been designated. If a Federal action
may affect a listed species or its critical habitat, the responsible
Federal agency must enter into formal consultation with us.
Activities on private lands requiring a permit from a Federal
agency, such as a permit from the Army Corps of Engineers under section
404 of the Clean Water Act, would be subject to the section 7
consultation process. Federal actions not affecting the species, as
well as actions on non-Federal lands that are not federally funded or
permitted would not require section 7 consultation.
Listing of this plant would authorize development of a recovery
plan for it. However, in the case of Polygonum hickmanii, we included
conservation recommendations for this species in a multi-species
recovery plan we published, which also addressed recovery actions for
two listed insects and three listed plants (including the endangered
Chorizanthe robusta var. hartwegii that occurs with P. hickmanii) in
the Santa Cruz Mountains (Service 1998). Should P. hickmanii become
listed, we intend that the conservation recommendations included in
this recovery plan will, in effect, become the recovery plan for this
species. This plan identifies both State and Federal efforts for
conservation of the plant and establishes a framework for agencies to
coordinate activities and cooperate with each other in conservation
efforts. The plan sets recovery priorities and describes site-specific
management actions necessary to achieve conservation and survival of
the plant. Additionally, pursuant to section 6 of the Act, we would be
able to grant funds to the State of California for management actions
promoting the protection and recovery of the species.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered
plants. All prohibitions of section 9(a)(2) of the Act, implemented by
50 CFR 17.61 for endangered plants, would 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 the species from areas
under Federal jurisdiction. In addition, for plants listed as
endangered, the Act prohibits the malicious damage or destruction in
areas under Federal jurisdiction and the removal, cutting, digging up,
damaging, or destroying of such endangered plants in knowing violation
of any State law or regulation, or in the course of any violation of a
State criminal trespass law. Certain exceptions to the prohibitions
apply to our agents and State conservation agencies.
In accordance with our policy, published in the Federal Register on
July 1, 1994 (59 FR 34272), at the time a species is listed we identify
to the maximum extent practicable those activities that would or would
not

[[Page 67342]]

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. Collection,
damage, or destruction of endangered plants on Federal lands is
prohibited, although in appropriate cases, a Federal endangered species
permit may be issued to allow for collection. However, Polygonum
hickmanii is not presently known to occur on Federal land. Removal,
cutting, digging up, damaging or destroying endangered plants on non-
Federal lands also constitutes a violation of section 9 of the Act if
conducted in knowing violation of State law or regulations, including
State criminal trespass law.
Questions regarding whether specific activities will constitute a
violation of section 9 should be addressed to the Field Supervisor,
Ventura Fish and Wildlife Office (see ADDRESSES section).
The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of
permits to carry out otherwise prohibited activities involving
endangered plants under certain circumstances. Such permits are
available for scientific purposes and to enhance the propagation or
survival of the species. Requests for copies of the regulations
regarding listed species and inquiries about prohibitions and permits
may be addressed to the U.S. Fish and Wildlife Service, Ecological
Services, Permits Branch, 911 N.E. 11th Avenue, Portland, Oregon 97232-
4181 (telephone 503/231-2063; facsimile 503/231-6243).

Public Comments Solicited

We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, we request
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule. Comments particularly are sought
concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threat (or lack thereof) to Polygonum hickmanii;
(2) The location of any additional populations of Polygonum
hickmanii and the reasons why any habitat of this species should or
should not be determined to be critical habitat pursuant to section 4
of the Act;
(3) Additional information concerning the range, distribution, and
population size of this species; and
(4) Current or planned activities in the subject area and their
possible impacts on Polygonum hickmanii.
In making a final decision on this proposal, we will take into
consideration the comments and any additional information we receive.
Such communications may lead to a final regulation that differs from
this proposal.
In accordance with our policy published on July 1, 1994 (59 FR
34270), we will solicit the expert opinions of three appropriate and
independent specialists regarding this proposed rule. The purpose of
such review is to ensure listing decisions are based on scientifically
sound data, assumptions, and analyses. We will send these peer
reviewers copies of this proposed rule immediately following
publication in the Federal Register. We will invite these peer
reviewers to comment, during the public comment period, on the specific
assumptions and conclusions regarding the proposed listing.
We will consider all comments and information received during the
60-day comment period on this proposed rule during preparation of a
final rulemaking. Accordingly, the final determination may differ from
this proposal.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home address from the rulemaking record, which we will honor to
the extent allowable by law. There also may be circumstances in which
we would withhold from the rulemaking record a respondent's identity,
as allowable by law. If you wish us to withhold your name and/or
address, you must state this prominently at the beginning of your
comment. However, we will not consider anonymous comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the above
address.
If you would like to submit comments by e-mail (see ADDRESSES
section), please submit e-mail comments as an ASCII file and avoid the
use of special characters and any form of encryption. Please also
include ``Attn: RIN 1018-AH70'' and your name and return address in
your e-mail message. If you do not receive a confirmation from the
system that we have received your e-mail message, contact us directly
by calling our Ventura Fish and Wildlife Office at phone number 805/
644-1766.

Public Hearings

The Act provides for one or more public hearing on this proposal,
if requested. Requests must be received within 45 days of the date of
publication of the proposal in the Federal Register. Such requests must
be made in writing and be addressed to the Field Supervisor (see
ADDRESSES section).

Clarity of the Rule

Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand, including answers to
questions such as the following--(1) Are the requirements in the
proposed rule clearly stated? (2) Does the proposed rule contain
technical jargon that interferes with the clarity? (3) Does the format
of the proposed rule (grouping and order of the sections, use of
headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the
description of the notice in the SUPPLEMENTARY INFORMATION section of
the preamble helpful in understanding the proposed rule? What else
could we do to make this proposed rule easier to understand?
Send a copy of any comments that concern how we could make this
rule easier to understand to the office identified in the ADDRESSES
section at the beginning of this document.

National Environmental Policy Act

We have determined that an Environmental Assessment and
Environmental Impact Statement, as defined under the authority of the
National Environmental Policy Act of 1969, need not be prepared in
connection with regulations adopted pursuant to section 4(a) of the
Act. We published a notice outlining our reasons for this determination
in the Federal Register on October 25, 1983 (48 FR 49244).

Required Determinations

This proposed rule does not contain any new or revised information
collection requirements for which 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. For additional information
concerning permits and associated requirements for endangered plants,
see 50 CFR 17.62

[[Page 67343]]

and 17.63. We may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number.

References Cited

A complete list of all references cited herein, as well as others,
is available upon request from the Ventura Fish and Wildlife Office
(see ADDRESSES section).

Author

The primary author of this proposed rule is Constance Rutherford
(see ADDRESSES section).

List of Subjects in 50 CFR part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

2. 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) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants

* * * * * * *
Polygonum hickmanii.............. Scotts Valley U.S.A. (CA)........ Polygonaceae....... E ........... NA NA
polygonum.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: October 17, 2000.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 00-28698 Filed 11-8-00; 8:45 am]
BILLING CODE 4310-55-U

Notices For
2009
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Endangered and Threatened Wildlife and Plants; Proposed Endangered Status for Polygonum hickmanii (Scotts Valley polygonum)

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