Endangered and Threatened Wildlife and Plants; Endangered Status for Carex lutea (Golden Sedge)

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

[Federal Register: January 23, 2002 (Volume 67, Number 15)]
[Rules and Regulations]
[Page 3120-3126]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23ja02-13]

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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AF68

Endangered and Threatened Wildlife and Plants; Endangered Status
for Carex lutea (Golden Sedge)

AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), determine
endangered status for Carex lutea (golden sedge) under the authority of
the Endangered Species Act of 1973, as amended (Act). This rare plant
is presently known from only eight populations (one population is made
up of two subpopulations) in Pender and Onslow Counties, North
Carolina. Carex lutea is endangered throughout its range because of
habitat alteration; conversion of its limited habitat for residential,
commercial, or industrial development; mining; drainage activities
associated with silviculture and agriculture; and suppression of fire.
In addition, herbicide use, particularly along utility or road rights-
of-way, may also be a threat. This action extends the protection of the
Act to C. lutea.

DATES: This rule is effective February 22, 2002.

ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours at U.S. Fish and Wildlife
Service, 160 Zillicoa Street, Asheville, North Carolina 28801.

FOR FURTHER INFORMATION CONTACT: Mr. Allen Ratzlaff at the above
address (828/258-3939, extension 229).

SUPPLEMENTARY INFORMATION:

Background

Carex lutea (LeBlond) is a perennial member of the sedge family
(Cyperaceae) known only from North Carolina. Fertile culms (stems) may
reach one meter (39 inches (in)) or more in height. The yellowish green
leaves are grasslike, with those of the culm mostly basal and up to 28
centimeters (cm) (11 in) long, while those of the vegetative shoots
reach a length of 65 cm (26 in). Fertile culms produce two to four
flowering spikes (multiple flowering structure with flowers attached to
the stem), with the terminal (end) spike being male and the one to
three (usually two) lateral spikes being female. Lateral spikes are
subtended by leaflike bracts (a much-reduced leaf). The male spike is
about 2 to 4 cm (0.8 to 1.6 in) long, 1.5 to 2.5 millimeters (mm) (0.06
to 0.12 in) wide, with a peduncle (stalk) about 1 to 6 cm (0.4 to 2.4
in) long. Female spikes are round to elliptic, about 1 to 1.5 cm (0.4
to 0.6 in) long and 1 cm (0.4 in) wide. The upper female spike is
sessile (not stalked; sitting), while lower female spikes, if present,
have peduncles typically 0.5 to 4.5 cm (0.2 to 1.8 in) long. When two
to three female spikes are present, each is separated from the next,
along the culm, by 4.5 to 18 cm (1.8 to 7.1 in). The inflated perigynia
(sac that encloses the ovary) are bright yellow at flowering and about
4 to 5 mm (0.16 to 0.20 in) long; the perigynia beaks (point) are out-
curved and spreading, with the lowermost in a spike strongly reflexed
(turned downward). Carex lutea is most readily identified from mid-
April to mid-June during flowering and fruiting. It is distinguished
from other Carex species that occur in the same habitat by its bright
yellow color (particularly the pistillate (female) spikes), by its
height and slenderness, and especially by the out-curved beaks of the
crowded perigynia, the lowermost of which are reflexed (LeBlond et al.
1994).
LeBlond et al. described Carex lutea in 1994 from specimens
collected in 1992 in Pender County, North Carolina. It is the only
member of the Carex section Ceratocystis found in the southeastern
United States.
Carex lutea grows in sandy soils overlying coquina limestone
deposits, where the soil pH is unusually high for this region,
typically between 5.5 and 7.2 (Glover 1994). Soils supporting the
species are very wet to periodically shallowly inundated. The species
prefers the ecotone (narrow transition zone between two diverse
ecological communities) between the pine savanna and adjacent wet
hardwood or hardwood/conifer forest (LeBlond 1996; Schafale and Weakley
1990). Most plants occur in the partially shaded savanna/swamp where
occasional to frequent fires favor an herbaceous ground layer and
suppress shrub dominance. Other species with which this sedge grows
include tulip poplar (Liriodendron tulipifera), pond cypress (Taxodium
ascendens), red maple (Acer rubrum var. trilobum), wax myrtle (Myrica
cerifera var. cerifera), colic root (Aletris farinosa), and several
species of beakrush (Rhynchospora spp.). At most sites, C. lutea shares
its habitat with Cooley's meadowrue (Thalictrum cooleyi), federally
listed as endangered, and with Thorne's beakrush (Rhynchospora
thornei), a species of management concern. All known populations are in
the northeast Cape Fear River watershed in Pender and Onslow Counties,
North Carolina. As stated by LeBlond (1996):

* * * localities where Carex lutea have been found are
ecologically highly unusual * * * The combination of fairly open
conditions underlain by a calcareous substrate is very rare on the
Atlantic coastal plain. Many rare plant species are associated with
these localities, and several have very restricted distributions,
either being endemic to a small area or with a few highly scattered
occurrences. The affinities of these taxa are variable, but include
connections to the calcareous savannas of the Gulf Coast States;
alkaline marshes of the Atlantic tidewater; calcareous glades,
barrens, and prairies of the Appalachian region and the ridge and
valley province of Georgia and Alabama; and pinelands of the
Carolinas and southern New Jersey.

These rare savannas, underlain by calcareous deposits, support
unusual assemblages of plants, including several species known from
less than a dozen sites worldwide (Schafale 1994). LeBlond (1996)
characterizes these habitats as ``a small archipelago of
phytogeographic islands'' that form a refuge for these rare and unique
species. Despite extensive searches of the Gulf Coast in northern
Florida and southern Alabama, and Atlantic Coast sites in South
Carolina, Georgia, and Florida, no other populations of Carex lutea
were found outside the North Carolina coastal plain. The species
appears to be a very rare endemic, narrowly restricted to an area
within a 3.2 kilometer (2-mile) radius of the Onslow/Pender County line
in southeastern North Carolina (LeBlond 1996). It is listed as
endangered by the State of North Carolina (Amoroso and Weakley 1995; M.
Boyer, North Carolina Department of Agriculture, personal
communication, 1998).

[[Page 3121]]

Previous Federal Activities

Federal Government actions on this species have only recently begun
because the species was unknown to science before 1991 and its official
description was not published until 1994. In 1995, we funded a survey
to determine the status of Carex lutea throughout its known and
potential range; we accepted the final report on this survey in 1997. A
1998 status report confirmed the species' precarious status (LeBlond
1998). We elevated C. lutea to candidate status (species for which we
have sufficient information on status and threats to propose the taxon
for listing as endangered or threatened) on October 16, 1998. On August
16, 1999, we proposed the species for listing as endangered (64 FR
44470).
Our final rule would have been due on August 16, 2000. However, we
were forced to cease our work on the rule because compliance with
outstanding court orders, judicially approved settlement agreements,
and litigation related activities required all remaining fiscal year
2000 funds and exhausted the entire fiscal year 2001 budget that
Congress appropriated for completing listings and critical habitat
designations pursuant to section 4 of the Act. The Director of the
Service issued a memo on November 17, 2000, directing all Regions to
immediately halt listing actions not under court order or settlement
agreement.
The Service and several conservation organizations have reached an
agreement that will enable us to complete work on evaluations of
numerous species proposed for listing under the Act. This final rule is
made in accordance with a judicially approved settlement agreement,
which requires us to submit for publication in the Federal Register a
final listing determination for the golden sedge on or before January
26, 2002.

Peer Review

In conformance with our policy on peer review, published on July 1,
1994 (59 FR 34270), we provided copies of the proposed rule to five
independent specialists in order to solicit comments on the scientific
or commercial data and assumptions relating to the supportive
biological and ecological information for Carex lutea. The purpose of
such review is to ensure that the listing decision is based on the best
scientific and commercial information available, as well as to ensure
that reviews by appropriate experts and specialists are included into
the review process of rulemakings. Although solicited, none of the five
reviewers provided comments on the proposed rule.

Summary of Comments and Recommendations

In the August 16, 1999, proposed rule and associated notifications,
we requested all interested parties to submit factual reports or
information that might contribute to the development of a final rule.
We contacted appropriate State agencies, county governments, Federal
agencies, scientific organizations, and other interested parties and
requested them to comment. We published a newspaper notice inviting
public comment in the Wilmington Journal (North Carolina) on August 26,
1999.
We received one comment, from the North Carolina Department of
Environment and Natural Resources, that expressed support for listing,
and concurred with our conclusion in the proposed rule that designation
of critical habitat would not be beneficial for golden sedge because of
the plant's extreme rarity.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information
available, we have determined that Carex lutea should be classified as
an endangered species. We followed procedures found in section 4 of the
Act and the accompanying regulations (50 CFR part 424). 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) of the Act. These
factors and their application to C. lutea are as follows:
A. The present or threatened destruction, modification, or
curtailment of its habitat or range. Seven of the eight known
populations of Carex lutea are on privately owned land and are
threatened with the destruction or adverse modification of their
habitat from residential, commercial, or industrial development; clay
mining; drainage activities associated with silviculture and
agriculture; and suppression of fire. The eighth population, on land
now owned by the North Carolina Department of Transportation (NCDOT),
was severely disturbed in the 1980s by clearcutting, ditching, and
draining prior to NCDOT ownership. This site has been purchased by the
NCDOT as a mitigation site and is currently under study for the
restoration of natural communities and protection and enhancement of
rare species populations. At least some of the original C. lutea plants
survived the previous damage to the site, and the remaining population
appears stable.
As described in the ``Background'' section, the habitat upon which
this species depends is extremely rare. Most of the remaining
populations are very small, with five of the eight occupying a combined
total area of less than 58 square meters (624 square feet). Three of
the sites have populations composed of fewer than 50 individuals.
Although little is known about natural population fluctuations in this
species, severe population declines (exceeding 83 percent) were noted
between 1992 and 1996 at three of the eight remaining sites. The exact
causes for these losses are unknown. One population is on a roadside,
and all of one population and part of another are on power line rights-
of-way, where they are exceptionally vulnerable to destruction from
highway expansion or improvement or herbicide application. All the
known sites have been damaged to some degree in the past by ditching
and drainage, mining, logging, bulldozing, right-of-way maintenance, or
road building. Because the species was only recently discovered,
knowing exactly what its historic distribution and population numbers
might have been is not possible. However, LeBlond (1996) states: ``It
is probable that drainage ditches (that lower the water table over a
large area) have reduced, perhaps greatly, the amount of suitable
habitat available for Carex lutea and other rare species at these
sites.''
B. Overutilization for commercial, recreational, scientific, or
educational purposes. There is no known commercial trade in Carex lutea
at this time. However, because of its small and easily accessible
populations, it is vulnerable to taking and vandalism that could result
from increased publicity. Most populations are too small to support
even the limited collection of plants for scientific or other purposes.
C. Disease or predation. Disease and predation are not known to be
factors affecting the continued existence of the species at this time.
D. The inadequacy of existing regulatory mechanisms. Carex lutea is
listed by the State of North Carolina as endangered. As such, it is
afforded legal protection within the State by North Carolina General
Statutes, Secs. 106-202.12 to 106-202.19 (Cum. Supp. 1985), which
provide for protection from intrastate trade (without a permit) and for
the monitoring and management of State-listed species and prohibit the
taking of plants without a permit and written permission from the
landowner. However, State prohibitions against

[[Page 3122]]

taking are difficult to enforce and do not cover adverse alterations of
habitats, such as disruption of drainage patterns and water tables or
exclusion of fire. Two of the sites are somewhat protected by registry
agreements between the landowner and the North Carolina Natural
Heritage Program. These agreements are strictly voluntary, however, and
may be canceled by the landowner at any time. Although part of another
population is owned by The Nature Conservancy (TNC), this population is
adjacent to a quarry. Activities in the quarry may alter the hydrology
of the area occupied by C. lutea and thus pose a threat to this
population. Portions of the population not owned by TNC are also
vulnerable to destruction by timber harvesting and fire suppression.
Section 404 of the Clean Water Act represents the primary Federal
law that may provide some regulation of the species' wetland habitats.
However, the Clean Water Act by itself does not provide adequate
protection for the species. Although the objective of the Clean Water
Act is to ``restore and maintain the chemical, physical, and biological
integrity of the Nation's waters'' (33 U.S.C. 1251), no specific
provisions exist that address the need to conserve rare species. The
Army Corps of Engineers (Corps) is the Federal agency responsible for
administering the section 404 program. Under section 404, the Corps may
issue nationwide permits for certain activities that are considered to
have minimal impacts. However, the Corps seldom withholds authorization
of an activity under nationwide permits unless the existence of a
listed threatened or endangered species would be jeopardized. The Corps
may also authorize activities by an individual or regional general
permit when the project does not qualify for authorization under a
nationwide permit. These projects include those that would result in
more than minimal adverse environmental effects, either individually or
cumulatively, and are typically subject to more extensive review.
Whatever the type of permit deemed necessary under section 404, rare
species such as Carex lutea may receive no special consideration
regarding conservation or protection unless they are listed under the
Act.
E. Other natural or manmade factors affecting its continued
existence. As mentioned in the ``Background'' section of this final
rule, most of the remaining populations are small in numbers of
individuals and in area covered by the plants. This may suggest low
genetic variability within populations, making it more important to
maintain as much habitat and as many remaining colonies as possible.
Little is known about the life history of this species or about its
specific environmental requirements. However, its apparent restriction
to wet pine savannas is a strong indication that it is adapted to the
pyric (associated with burning) and hydrological conditions associated
with this community type. Such habitats were historically exposed to
wildfires approximately every 3 to 5 years, usually during the growing
season, which maintained the open habitats favored by Carex lutea and
dozens of other fire-adapted species. During winter and spring, the
soils where C. lutea grows are often shallowly flooded. At other times
of the year these sites are very wet to saturated. Such high water
tables also serve to control woody growth in undisturbed savanna
habitats. However, without regular fire, which has been intensively
suppressed on the Atlantic coastal plain for half a century, and with
the lowering of water tables due to ditching, the open savannas are
rapidly changing to dense thickets dominated by the trees and shrubs of
the adjacent uplands. As a result, the extraordinary plant diversity
characteristic of the savannas is being eliminated, and species such as
C. lutea are disappearing from the landscape. Even where such habitat
is owned by an organization that is able to manage the land with
prescribed fire, like TNC, increasingly restrictive smoke management
regulations make burning very difficult.
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
faced by this species in making this determination. Based on this
evaluation, we find it appropriate to list Carex lutea as an endangered
species. Endangered status is more appropriate than threatened status
because of the following factors--this species occurs in only 2
counties; only 8 populations survive, all of which have already been
damaged to some degree; most of the remaining populations are very
small, with five of the eight occupying a combined total area of less
than 58 square meters (624 square feet); three of the remaining
populations are composed of fewer than 50 individuals; there are
documented severe population declines (exceeding 83 percent) between
1992 and 1996 at three of the eight remaining sites; and all of the
remaining populations are currently threatened by fire suppression,
highway expansion, right-of-way management with herbicides, drainage
ditching, or a combination thereof.

Critical Habitat

Critical habitat is defined in section 3 of the Act as: (i) The
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographic area occupied by a species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. ``Conservation'' means the use of all methods and procedures
needed to bring the species to the point at which listing under the Act
is no longer necessary.
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary designate any critical habitat at the
time the species is listed as 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.
The designation of critical habitat does not, in itself, restrict
State or private activities within the area or mandate any specific
management or recovery actions. A critical habitat designation
contributes to species conservation primarily by identifying important
areas and describing the features within those areas that are essential
to the species, thus alerting public and private entities to the
importance of the area. Under the Act, the only regulatory impact of a
critical habitat designation is through the provisions of section 7.
Section 7 applies only to actions with Federal involvement (e.g.,
activities authorized, funded, or conducted by a Federal agency) and
does not affect exclusively State or private activities.
Under the Act's section 7 provisions, a designation of critical
habitat would require Federal agencies to ensure that any action they
authorize, fund, or carry out is not likely to destroy or adversely
modify the designated critical habitat. Activities that destroy or
adversely modify critical habitat are defined as those actions that
``appreciably diminish the value of critical habitat for

[[Page 3123]]

both the survival and recovery'' of the species (50 CFR 402.02).
Whether or not there is a critical habitat designation, Federal
agencies must ensure that their actions are not likely to jeopardize
the continued existence of the listed species. Activities that
jeopardize a species are defined as those actions that ``reasonably
would be expected, directly or indirectly, to reduce appreciably the
likelihood of both the survival and recovery'' of the species (50 CFR
402.02). Using these definitions, activities that are likely to destroy
or adversely modify critical habitat would also be likely to jeopardize
the species. Therefore, the protection provided by a critical habitat
designation generally duplicates the protection provided under the
section 7 jeopardy provision. Critical habitat may provide additional
benefits to a species in cases where areas outside the species'
currently occupied range have been designated. In these cases, Federal
agencies are required to consult with us (50 CFR 402.14(a)) when these
designated areas may be affected by their actions. The effects of these
actions on designated areas may not have been recognized but for the
critical habitat designation.
Theoretically, a designation of critical habitat provides Federal
agencies with a clearer indication as to when consultation under
section 7 is required, particularly in cases where the action would not
result in direct mortality, injury, or harm to individuals of a listed
species (e.g., an action occurring within the critical habitat area
when or where golden sedge is not present). The critical habitat
designation, in describing the essential features of the habitat, also
helps determine which activities conducted outside the designated area
are subject to section 7 consultation requirements (i.e., activities
that may affect essential features of the designated area). For
example, a project some distance away that depleted the groundwater in
the aquifers that feed the wetland habitat of golden sedge, or
otherwise affected an essential feature of the designated habitat,
would be subject to the provisions of section 7 of the Act.
In the proposed rule, we found that designation of critical habitat
for Carex lutea was not prudent because of the increased risks to the
species associated with disclosing specific locations, and because such
a designation would not be beneficial to the species. As to increased
risks, we determined that because most populations of this species were
small, the loss of even a few individuals to activities such as
collection for scientific purposes could extirpate the species from
some locations. Although taking without a permit is prohibited by the
Act from locations under Federal jurisdiction, none of the known
populations are located on Federal land. Therefore, we believed that
publication of critical habitat descriptions and maps would increase
the vulnerability of the species to collection, but would not increase
its protection under the Act. In fact, the contractor we hired to
conduct the rangewide status survey declined to include directions to
the occupied sites in his report, stating: ``Due to the extreme rarity
of Carex lutea and its vulnerability to extinction, a description of
site boundaries or precise directions to population micro sites cannot
be provided here'' (LeBlond 1996).
In determining in the proposed rule that designation of critical
habitat would not benefit the golden sedge, we first noted that all but
one of the remaining populations of golden sedge occur on land that is
in private ownership, with the other site owned by the NCDOT. In other
words, none of the populations occur on Federal land. We realized that
Federal involvement with this species may occur through Federal funding
for power line construction, maintenance, and improvement; highway
construction, maintenance and improvement; drainage alterations; and
permits for mineral exploration and mining on non-Federal lands, and
that the use of such funding for projects affecting occupied habitat
for this species would be subject to review under section 7(a)(2) of
the Act. However, this would be true whether or not critical habitat
was designated. Furthermore, the precarious status of Carex lutea is
such that any adverse modification or destruction of its occupied
habitat would also jeopardize its continued existence. Thus, the only
potential benefit that would result from critical habitat designation
would be notification to Federal, State and local government agencies
and private landowners. However, during the listing process, and after
a species is listed, we conduct public outreach in affected local
communities and with government agencies, so that the owners and
managers of all the known populations of C. lutea were made aware of
the plant's location and how important it is to protect the plant and
its habitat. For these reasons, we concluded that designation of
currently occupied habitat as critical habitat would not result in any
additional benefit to the species.
Finally, because this species occupies an extremely rare habitat
type, little of which remains in an unaltered, functional state, we did
not expect that reintroduction to currently unoccupied habitat would be
essential for recovery efforts. Therefore, we also concluded that
designation of currently unoccupied habitat as critical habitat would
not result in any additional benefit to the species.
We received only one comment on our prudency determination. The
North Carolina Department of Environment and Natural Resources, in its
comments on the proposed rule, concurred that designation of critical
habitat for this species would not be beneficial.
However, recent court decisions (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)) have forced us to reevaluate our ``not prudent''
finding. The Conservation Council ruling is particularly relevant to
our determination. In that case, the court held that in order to
conclude that designation would increase the risk to the species, the
Service must have evidence of specific threats (such as instances of
collection and vandalism) that would be increased by designation of
critical habitat. The court said that without species-specific
evidence, the fact that there are few plants and that even a single
taking could cause the species to become extinct was not sufficient
justification for a ``not prudent'' finding based on increased threat.
We remain concerned that publication of precise maps and
descriptions of critical habitat in the Federal Register and local
newspapers could increase the vulnerability of this plant to incidents
of collection, general vandalism, and trampling by curiosity-seekers.
Due to the low numbers of individuals, the small area covered by the
eight remaining populations, and the inherent transportability of
plants, golden sedge is vulnerable to collection and other disturbance.
However, at this time we have no specific evidence of taking,
vandalism, illegal collection, or trade of this species. This may be
due to its recent description as a new species to science and to the
locations of the populations being known by only a few individuals.
Also, it is very difficult to monitor such losses on scattered private
lands. Nonetheless, in the absence of specific evidence, we cannot
conclude that designation would not be prudent based on increased
threat.
Without a finding that critical habitat would increase threats to a
species, then designation would be prudent if it would provide any
benefits to the species. As to benefits of designation, the
Conservation Council court held that the mere absence of a species from

[[Page 3124]]

nonfederal land did not mean that there were no benefits to designating
that land as critical habitat, as there could be Federal activity on
that land in the future. As to Federal land, the court held that if
even as a general rule an action that would adversely modify critical
habitat was likely to jeopardize the continued existence of the
species, the Service must consider the adverse modification/jeopardy
relationship for each species individually. Finally, the court ruled
that designation of critical habitat on any type of land serves to
educate the public and government officials that this habitat is
essential to the protection of the species.
With this taxon, designation of critical habitat may provide some
minor benefits to the species. Although the remaining populations of
golden sedge are located exclusively on non-Federal lands, there may be
Federal actions affecting these lands in the future. Furthermore, the
primary regulatory effect of critical habitat designation is to require
Federal agencies to consult before taking any action that could destroy
or adversely modify 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. No such
habitat is known at this time, but some may be found in the future.
Finally, there will be educational or informational benefits from
designating critical habitat.
Reevaluating our prudency determination under the standards
mandated by court decisions, we must find that designation of critical
habitat for the golden sedge is prudent. However, we are deferring our
critical habitat determination due to budgetary constraints associated
with the listing program. Our entire FY 2002 budget for listing actions
has been consumed due to required compliance with outstanding court
orders, settlement agreements, meeting statutory deadlines, and
litigation related activities. This final rule is made in accordance
with a judicially approved settlement agreement that requires us to
submit for publication in the Federal Register a final listing
determination for the golden sedge on or before January 26, 2002. Funds
are insufficient to also allow us to propose critical habitat with this
final determination. Critical habitat designations are costly,
requiring mapping, economic analysis, and often public hearings and
meetings that are costs above those incurred for listing the species.
We will develop a proposal to designate critical habitat for this
species as soon as feasible, considering our budget and workload
priorities.

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
practices. Recognition through listing encourages and results in
conservation actions by Federal, State, and local agencies, private
organizations, and individuals. The Act provides for possible land
acquisition and cooperation with the States and requires that recovery
actions be carried out for all listed species. The protection required
of Federal agencies and the prohibitions against certain activities
involving listed plants are discussed, in part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(2) of the Act requires Federal agencies to
ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of a listed species or to
destroy or adversely modify its designated critical habitat. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into formal consultation with us.
Federal activities that could impact Carex lutea and its habitat in
the future include, but are not limited to, the following--power line
construction, maintenance, and improvement; highway construction,
maintenance, and improvement; drainage alterations; and permits for
mineral exploration and mining. We will work with the involved agencies
to secure protection and proper management of C. lutea while
accommodating agency activities to the extent possible.
Now that the species has been added to the Federal List of
Endangered and Threatened Wildlife and Plants, additional protection
from taking is provided when the taking is in violation of any State
law, including State trespass laws. The listing also provides
protection from inappropriate commercial trade and encourages active
management for Carex lutea. Specifically, the Act and its implementing
regulations set forth a series of general prohibitions and exceptions
that apply to all endangered plants. All prohibitions of section
9(a)(2) of the Act, implemented by 50 CFR 17.61, apply. These
prohibitions, in part, make it illegal for any person subject to the
jurisdiction of the United States to import or export, transport in
interstate or foreign commerce in the course of a commercial activity,
sell or offer for sale in interstate or foreign commerce, or remove and
reduce the species to possession from areas under Federal jurisdiction.
In addition, for plants listed as endangered, the Act prohibits the
malicious damage or destruction on areas under Federal jurisdiction and
the removal, cutting, digging up, or damaging or destroying of such
plants in knowing violation of any State law or regulation, including
State criminal trespass law. Certain exceptions to the prohibitions
apply to our agents and to State conservation agencies.
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. We anticipate that few trade permits would
ever be sought or issued, because the species is not common in
cultivation or in the wild. You may request copies of the regulations
on plants from and direct inquiries about prohibitions and permits to
the U.S. Fish and Wildlife Service, 1875 Century Boulevard, Atlanta,
Georgia (telephone 404/679-4176).
It is our policy, published on July 1, 1994 (59 FR 34272), to
identify, to the maximum extent practicable, those activities that
would or would not constitute a violation of section 9 of the Act at
the time of listing. 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. The eight remaining populations of
Carex lutea occur on non-Federal land. We believe that, based upon the
best available information, you can take the following actions without
resulting in a violation of section 9 of the Act, only if these
activities are carried out in accordance with existing regulations and
permit requirements:

[[Page 3125]]

(1) Activities authorized, funded, or carried out by Federal
agencies (e.g., wetland modification; power line construction,
maintenance, and improvement; highway construction, maintenance, and
improvement; and permits for mineral exploration and mining) when such
activity is conducted in accordance with any biological opinion issued
by us under section 7 of the Act;
(2) Normal agricultural and silvicultural practices, including
pesticide and herbicide use, that are carried out in accordance with
any existing regulations, permit and label requirements, and best
management practices; and
(3) Normal landscape activities around personal residences.
We believe that the following might potentially result in a
violation of section 9; however, possible violations are not limited to
these actions alone:
(1) Removal, cutting, digging up, damaging, or destroying
endangered plants on non-Federal land if conducted in knowing violation
of State law or regulation or in violation of State criminal trespass
law. North Carolina prohibits the intrastate trade and take of C. lutea
without a State permit and written permission from the landowner; and
(2) Interstate or foreign commerce and import/export without
previously obtaining an appropriate permit.

National Environmental Policy Act

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

Paperwork Reduction Act

This rule does not contain any new collections of information other
than those already approved under the Paperwork Reduction Act, 44
U.S.C. 3501 et seq., and assigned Office of Management and Budget
control number 1018-0094. An agency may not conduct or sponsor, and a
person is not required to respond to a collection of information,
unless it displays a currently valid control number. For additional
information concerning permit and associated requirements for
endangered species, see 50 CFR 17.62.

References Cited

Amoroso, J., and A. Weakley. 1995. Natural Heritage Program list of the
rare plant species of North Carolina. Natural Heritage Program,
Division of Parks and Recreation, North Carolina Department of
Environment, Health, and Natural Resources, Raleigh.
Glover, L. 1994. Carex lutea: alive and well in Pender County, North
Carolina. Report prepared by the North Carolina Chapter of The Nature
Conservancy, Durham.
LeBlond, R. 1998. Supplement to the status survey for Carex lutea.
Unpublished report submitted to the Asheville Field Office, U.S. Fish
and Wildlife Service, Asheville, NC.
--1996. Status survey for Carex lutea LeBlond. Unpublished report
submitted to the Asheville Field Office, U.S. Fish and Wildlife
Service, Asheville, NC.
LeBlond, R., A. Weakley, A. Reznicek, and W. Crins. 1994. Carex lutea
(Cyperaceae), a rare new coastal plain endemic from North Carolina.
SIDA 16:153-161.
Schafale, M. 1994. Inventory of longleaf pine natural communities in
North Carolina. Natural Heritage Program, Division of Parks and
Recreation, North Carolina Department of Environment, Health, and
Natural Resources, Raleigh.
Schafale, M., and A. Weakley. 1990. Classification of the natural
communities of North Carolina (third approximation). Natural Heritage
Program, Division of Parks and Recreation, North Carolina Department of
Environment, Health, and Natural Resources, Raleigh.

Author

The primary author of this document is Mr. Allen Ratzlaff (see
ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Final Regulation Promulgation

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

PART 17--[AMENDED]

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

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

2. Amend Sec. 17.12(h) by adding the following, in alphabetical
order under FLOWERING PLANTS, to the List of Endangered and Threatened
Plants:

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

* * * * * * *
Carex lutea...................... Golden sedge........ U.S.A. (NC)........ Cyperaceae......... E 721 NA NA

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

[[Page 3126]]

Dated: January 15, 2002.
Marshall P. Jones, Jr.,
Acting Director, Fish and Wildlife Service.
[FR Doc. 02-1630 Filed 1-22-02; 8:45 am]
BILLING CODE 4310-55-P

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

Endangered and Threatened Wildlife and Plants; Endangered Status for Carex lutea (Golden Sedge)

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