Endangered and Threatened Wildlife and Plants; Endangered Status
for ``Erigeron decumbens'' var. ``decumbens'' (Willamette Daisy) and
Fender's Blue Butterfly (``Icaricia icarioides fenderi'') and
Threatened Status for ``Lupinus sulphureus'' ssp. ``kincaidii''
(Kincaid's Lupine)
[Federal Register: January 25, 2000 (Volume 65, Number 16)]
[Rules and Regulations]
[Page 3875-3890]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25ja00-19]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AE53
Endangered and Threatened Wildlife and Plants; Endangered Status
for ``Erigeron decumbens'' var. ``decumbens'' (Willamette Daisy) and
Fender's Blue Butterfly (``Icaricia icarioides fenderi'') and
Threatened Status for ``Lupinus sulphureus'' ssp. ``kincaidii''
(Kincaid's Lupine)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The U.S. Fish and Wildlife Service (``Service'' or ``we'')
determines endangered status pursuant to the Endangered Species Act
(Act) of 1973, as amended, for a plant and a butterfly, Erigeron
decumbens var. decumbens (Willamette daisy) and Fender's blue butterfly
(Icaricia icarioides fenderi), and determines threatened status for a
plant, Lupinus sulphureus ssp. kincaidii (Kincaid's lupine). These
species are restricted primarily to native prairie in the Willamette
Valley of Oregon and are known currently from a few small remnants of a
formerly widespread distribution. In addition to its Oregon
occurrences, L. sulphureus ssp. kincaidii is known also from two small
sites in southern Washington. Commercial and/or residential
development, agriculture, silvicultural practices, road improvement,
over-collection, herbicide use, and naturally occurring demographic and
random environmental events threaten these three taxa. This final rule
invokes the Federal protection and recovery provisions of the Act, as
applicable for these plant and butterfly species.
EFFECTIVE DATES: February 24, 2000.
ADDRESSES: You may inspect the complete file for this rule, by
appointment, during normal business hours at the U.S. Fish and Wildlife
Service, Oregon State Office, 2600 SE 98th Ave, Suite 100, Portland,
Oregon 97266.
FOR FURTHER INFORMATION CONTACT: Dr. Andrew F. Robinson, Jr.,
Botanist; or Diana Hwang, Fish and Wildlife Biologist, U.S. Fish and
Wildlife Service (see ADDRESSES section or telephone 503-231-6179,
Facsimile 503-231-6195).
SUPPLEMENTARY INFORMATION:
Background
Fender's blue butterfly (Icaricia icarioides fenderi), Lupinus
sulphureus ssp. kincaidii (Kincaid's lupine), and Erigeron decumbens
var. decumbens (Willamette daisy) are restricted primarily to the
Willamette Valley of Oregon. The valley is a 209-kilometer (km) (130
miles (mi)) long and 32-64-km (20-40-mi) wide alluvial floodplain with
an overall northward gradient (Orr et al. 1992). The valley is narrow
and flat at its southern end, widening and becoming hilly near its
northern end at the confluence of the Willamette and Columbia Rivers.
We know of four sites containing L. sulphureus ssp. kincaidii
approximately 60 km (38 mi) south of the Willamette Valley and within
the Umpqua Valley of Douglas County, Oregon. In addition to its Oregon
occurrences, L. sulphureus ssp. kincaidii is known from two small sites
in Lewis County, southern Washington, 70 km (40 mi) north of the
Willamette Valley.
The alluvial soils of the Willamette Valley and southern Washington
host a mosaic of grassland, woodland, and forest communities. Fender's
blue butterfly, Lupinus sulphureus ssp. kincaidii, and Erigeron
decumbens var. decumbens occupy native grassland habitats within the
Willamette Valley. Based on the limited available evidence, most
Willamette Valley grasslands are early seral (one stage in a sequential
[[Page 3876]]
progression) habitats, requiring natural or human-induced disturbance
for their maintenance (Franklin and Dryness 1973). The vast majority of
Willamette Valley grasslands would likely be forested if left
undisturbed (Johannessen et al. 1971). Important exceptions to this
successional pattern are grass balds on valley hillsides that may be
climax grasslands due to the presence of deep, fine-textured, self-
mulching soils or xeric (very dry) lithosoils (Franklin and Dryness
1973).
Two native prairie types occur in the Willamette Valley, wet
prairie and upland prairie. Fender's blue butterfly and Lupinus
sulphureus ssp. kincaidii are typically found in native upland prairie
with the dominant species being Festuca rubra (red fescue) and/or
Festuca idahoensis (Idaho fescue) and Calochortus tolmiei (Tolmie's
mariposa), Silene hookeri (Hooker's catchfly), Fragaria virginiana
(broadpetal strawberry), Sidalcea virgata (rose check-mallow), and
Lomatium spp. (common lomatium) serving as herbaceous indicator species
(Hammond and Wilson 1993). These dry, fescue prairies make up the
majority of habitat for Fender's blue butterfly and L. sulphureus ssp.
kincaidii. Although Fender's blue butterfly and L. sulphureus ssp.
kincaidii are occasionally found on steep, south-facing slopes and
barren rocky cliffs, neither of these species are capable of occupying
the most xeric oatgrass communities on these south-facing slopes.
The primary habitat for Erigeron decumbens var. decumbens is native
wetland prairie. This habitat is characterized by the seasonally wet
Deschampsia caespitosa (tufted hairgrass) community that occurs in low,
flat regions of the Willamette Valley where flooding creates anaerobic
and strongly reducing soil conditions. This wet prairie community
includes Juncus spp. (rush) and Danthonia californica (California
oatgrass) as co-dominant native species, as well as the introduced
species Festuca arundinaceae (tall fescue), Bromus japonicus (Japanese
brome) and Anthoxanthum odoratum (sweet vernal grass) (USFWS 1993).
Another endangered species, Lomatium bradshawii (Bradshaw's lomatium)
also grows in wet prairie habitat. Atypically, two populations of E.
decumbens var. decumbens occur on top of a dry, stony butte in an
upland prairie.
The impact of humans on the botanical communities of the Willamette
Valley dates back several centuries to the Kalapooya Indians, who
cleared and burned lands used for hunting and food gathering. Early
accounts by David Douglas in 1826 indicate extensive burning of the
valley floor, from its northern end at the falls of the Willamette
River to its southern extremities near Eugene. Burned areas were
documented by Douglas as being so complete as to limit the forage
available for his horse and to reduce game availability (Douglas 1972).
Accounts by other early explorers support Douglas' observations and
suggest a pattern of annual burning by the Kalapooya resulted in the
maintenance of extensive wet and dry prairie grasslands (Johannessen et
al. 1971). Although much of the woody vegetation was prevented from
becoming established on the grasslands by this treatment, the random
survival of young fire-resistant species such as Quercus garryana
(Oregon white oak) accounted for the widely spaced trees on the margins
of the valley (Habeck 1961). After 1848, burning decreased sharply
through the efforts of settlers to suppress large-scale fires.
Consequently, the open, park-like nature of the valley floor was lost,
replaced by agricultural fields, dense oak and fir forests, and scrub
lands following logging.
The Willamette basin covers approximately 2,600,000 hectares (ha)
(6,400,000 acres (ac)), which Lang (1885) estimated to consist of one-
sixth prairie and five-sixths forest. We can analyze the extent of the
prairie component through historical information from land survey
records. Natural grasslands described by Federal land surveyors in the
1850s were broken down into three distinct types--oak savannah, upland
prairie, and wet prairie (Habeck 1961). Of the estimated 409,000 ha
(1,010,000 ac) of historic native grasslands extant prior to 1850,
approximately 277,000 ha (685,000 ac) appears to have consisted of
upland prairie and 132,000 ha (325,000 ac) of wet prairie (E. Alverson,
The Nature Conservancy, Eugene, pers. comm., 1994).
This extensive resource was rapidly depleted through the conversion
of native prairie to agricultural use during European settlement.
Within 30 years of passage of the Donation Land Act of 1850, European-
American settlers, who quickly subdivided their original land grants to
accommodate the rapid increase in population, occupied most prairie
lands (Lang 1885). Settlers first plowed the level, open tracts of
prairie (Lang 1885) and only boggy, flood-prone areas prevented
complete conversion of the native grassland community to cropped
monocultures. After 1936, the U.S. Army Corps of Engineers (Corps)
overcame limitations on development that had been imposed by seasonal
flooding and a high water table by initiating water projects to provide
flood control and security for expanded agricultural activity.
Fender's blue butterfly, Lupinus sulphureus ssp. kincaidii, and
Erigeron decumbens var. decumbens likely once occurred over a large
distribution throughout the historic native prairie. Native prairie
vegetation in the Willamette Valley was decimated by the rapid
expansion of agriculture during the 140-year period from the 1850s to
the present. Humans also began suppressing the fire disturbance regime
on native prairie habitat. Fire suppression allowed shrub and tree
species to overtake grasslands, while agricultural practices hastened
the decline of native prairie species through habitat loss and
increased grazing (Johannessen et al. 1971; Franklin and Dyrness 1973).
Fence rows and intervening strips of land along agricultural fields and
roadsides served as the only refugia from these forces of change.
Although large prairie expanses dominated by native species had
been lost by the early 1900's, many remnant grasslands with a large
native species component have been recently identified. These remnants,
often dominated by nonnative species, also support the only remaining
occurrences of native prairie species in the Willamette Valley. Current
estimates of the remaining native upland prairie in the Willamette
Valley are less than 400 ha (988 ac) (Alverson, pers. comm. 1994). This
estimate represents only one-tenth of one percent of the original
upland prairie once available to Fender's blue butterfly and Lupinus
sulphureus ssp. kincaidii. Fender's blue butterfly and/or L. sulphureus
ssp. kincaidii and/or Erigeron decumbens var. decumbens currently
occupy slightly more than one-half of this upland prairie habitat (62
sites, 210 ha (112.8 ac)). Within the remnant prairie habitat, E.
decumbens var. decumbens occupies 28 sites across 116 ha (286 ac), L.
sulphureus ssp. kincaidii occupies 54 sites across 158 ha (370 ac),
while Fender's blue butterfly occupies 32 sites across 165 ha (408 ac).
Similar losses have occurred for wet prairie habitats, but estimates of
current acreage are not available.
Fender's Blue Butterfly
Fender's blue butterfly is one of about a dozen subspecies of
Boisduval's blue butterfly (Icaricia icariodes). Icaricia icarioides is
found in western North America; subspecies fenderi is restricted to the
Willamette Valley (Dornfeld 1980;
[[Page 3877]]
R. H. T. Mattoni, University of California, pers. comm. to C. Nagano
1997; J. Emmel, Hemet, California, pers. comm. to C. Nagano 1997).
Fender's blue butterfly was described by Ralph W. Macey (1931) as
Plebejus maricopa fenderi based on specimens he had collected in
Yamhill County, Oregon. The species maricopa is currently considered to
be a synonym of the species icarioides (Miller and Brown 1981). The
species icaricia has been determined to be a member of the genus
Icaricia, rather than the genus Plebejus (Miller and Brown 1981; R. H.
T. Mattoni, pers. comm. to C. Nagano 1997). Some researchers considered
subspecies fenderi to be a synonym of the pardalis blue butterfly
(Icaricia icarioides pardalis), an inhabitant of the central California
Coast Range near San Francisco (Downey 1975; Miller and Brown 1981). We
consider Fender's blue butterfly as a distinct taxon based on adult
characters and geographic distribution (Dornfeld 1980; Hammond and
Wilson 1993; R. H. T. Mattoni and J. Emmel, pers. comm. to C. Nagano
1997).
Fender's blue butterfly is small with a wingspan of approximately
2.5 centimeters (cm) (1 inch (in)). The upper wings of the males are
brilliant blue in color, and the borders and basal areas are black. The
upper wings of the females are completely brown colored. The undersides
of the wings of both sexes are creamish tan, with black spots
surrounded with a fine white border or halo. The dark spots on the
underwings of male Fender's blue butterflies are small. In contrast,
the dark spots on the underwings of the pembina blue butterfly
(Icaricia icariodes pembina) are surrounded with wide white haloes, and
the underside of the hindwings of Boisduval's blue butterfly (Icaricia
icariodes) is very pale whitish gray with broad haloes around the black
spots.
We do not know the precise historic distribution of Fender's blue
butterfly due to the limited information collected on this subspecies
prior to its description in 1931 (Macy 1931). Although Ralph W. Macy
collected the type specimens for this butterfly in 1929, only a limited
number of collections were made between the time of the subspecies'
discovery and Macy's last observation on May 23, 1937, in Benton
County, Oregon (Hammond and Wilson 1992a). A lack of information on the
identity of the butterfly's host plant caused researchers to focus
their survey efforts on common lupine species known to occur in the
vicinity of Macy's collections. As a result, no Fender's blue
butterflies were observed during 20 years of widespread investigation.
Finally, Dr. Paul Hammond rediscovered Fender's blue butterfly in 1989
at McDonald Forest, Benton County, Oregon, on an uncommon species of
lupine, Lupinus sulphureus ssp. kincaidii. Recent surveys have
indicated that the insect is confined to the Willamette Valley and
currently occupies 32 sites in Yamhill, Polk, Benton, and Lane Counties
(Hammond and Wilson 1993; Schultz 1996). One population at Willow Creek
is found in wet, Deschampsia-type prairie, while the remaining sites
are found on drier upland prairies characterized by Festuca spp.
Fender's blue butterflies occupy sites located almost exclusively on
the western side of the valley, within 33 km (21 mi) of the Willamette
River.
Although researchers have made only limited observations of the
early life stages of Fender's blue butterfly, the life cycle of the
species likely is similar to other subspecies of Icaricia icarioides
(R. H. T. Mattoni, pers. comm. to C. Nagano 1997; G. Pratt, Riverside,
California, pers. comm. to C. Nagano 1997; Hammond and Wilson 1993).
Adult butterflies lay their eggs on perennial Lupinus sp. (Ballmer and
Pratt 1988), the food plant of the caterpillar during May and June.
Newly hatched larvae feed for a short time, reaching their second
instar in the early summer, at which point they enter an extended
diapause (maintaining a state of suspended activity). Diapausing larvae
remain in the leaf litter at or near the base of the host plant through
the fall and winter and may become active again in March or April of
the following year. Some larvae may be able to extend diapause for more
than one season depending upon the individual and environmental
conditions (R. H. T. Mattoni pers. comm. to C. Nagano 1997). Once
diapause is broken, the larvae feed and grow through three to four
additional instars, enter their pupal stage, and then emerge as adult
butterflies in April and May. Behavioral observations of Fender's blue
butterfly indicate the larvae are alert to potential predators, with
individuals dropping from their feeding position on lupine leaves to
the base of the plant at the slightest sign of disturbance (C. Schultz,
University of Washington, pers. comm. 1994). A Fender's blue butterfly
may complete its life cycle in 1 year.
The larvae of many species of lycaenid butterflies, including
Icaricia icarioides, possess specialized glands that secrete a sweet
solution sought by some ant species who may actively ``tend'' and
protect them from predators and parasites (Ballmer and Pratt 1988; G.
Pratt, pers. comm. to C. Nagano 1997). Although ants tend other
subspecies of Boisduval's blue butterfly during their larval stage
(Downey 1962, 1975; Thomas Reid Associates 1982; R. H. T. Mattoni and
G. Pratt, pers. comm. to C. Nagano 1997), limited observations of
Fender's blue butterfly larvae in the field have failed to document
such a mutualistic association (Hammond 1994). However, this situation
may be due to the nocturnal activity patterns of the Icaricia
icarioides larvae, because it appears that this species has an obligate
relationship with ants (G. Pratt, pers. comm. to C. Nagano 1997).
Schultz (pers. comm. 1994) has observed nonnative Argentine ants
(Iridomyrmex humilis) tending Fender's blue butterfly larvae during
indoor rearing trials.
Of the 32 sites where Fender's blue butterfly occurs, Lupinus
sulphureus ssp. kincaidii co-occurs as a larval host plant at 27 of
these. The near absence of the Fender's blue butterfly at sites without
Lupinus sulphureus ssp. kincaidii suggests that L. laxiflorus (spurred
lupine) and L. albicaulis (sickle keeled lupine) may be secondary food
plants used by the insect (Hammond and Wilson 1993). Occurrences where
Fender's blue butterfly apparently does not rely on L. sulphureus ssp.
kincaidii as its primary host plant have been noted at Coburg Ridge
where L. laxiflorus is the sole host plant across greater than 95
percent of the site (Schultz in litt. 1998), two other sites where L.
laxiflorus is the primary food plant (Schultz 1996), and an additional
two sites where L. laxiflorus co-occurs with L. sulphureus ssp.
kincaidii (Hammond and Wilson 1993). Fender's blue butterfly also
occupies six sites where L. albicaulis is the primary food plant;
however, the butterfly is declining at two of these sites.
At this time we have no information to suggest that Lupinus
albicaulis and/or L. laxiflorus are inferior host plants either
physically or biochemically, or that the oviposition behavior of the
Fender's blue butterfly prefers L. sulphureus ssp. kincaidii. It is
possible that the co-occurrence of these two species is due to
environmental factors favoring L. sulphureus ssp. kincaidii that also
favor Fender's blue butterfly. However, this phenomenon of food plant
specificity has been documented in other species of butterflies and
moths (Longcore et al. 1997). We may say, however, that at the majority
of sites where Fender's blue butterfly occurs, L. sulphureus ssp.
kincaidii serves as the sole source for larval food and oviposition
sites and native wildflowers for adult nectar. Research in
collaboration with Katrina Dlugosh (Schultz in litt. 1998) indicates
that native wildflowers in the Willamette
[[Page 3878]]
Valley prairies provide more nectar than nonnative flowers and that
Fender's blue butterfly population density is positively correlated
with the density of native wildflowers. In Lane County, key native
flowers include Allium amplectans, Calachortus tolmiei, Camassia
quamash, Eriophyllum lanatum, and Sidalcea virgata (Schultz in litt.
1998).
Lupinus Sulphureus ssp. Kincaidii
In 1924, C.P. Smith first described Lupinus sulphureus ssp.
kincaidii as L. oreganus var. kincaidii from a collection made in
Corvallis, Oregon (Kuykendall and Kaye 1993a). Phillips (1955)
transferred the taxon to a subspecies status as L. sulphureus ssp.
kincaidii. Hitchcock et al. (1961) retained the position noted by
Phillips (1955), but preferred the combination as a varietal rank, L.
sulphureus var. kincaidii.
Lupinus sulphureus ssp. kincaidii occupies 48 sites throughout the
Willamette Valley. Four sites are in the Umpqua Valley of Douglas
County, Oregon, and two sites are in southern Washington. The
latitudinal range of the 54 sites of L. sulphureus ssp. kincaidii spans
from Lewis County, Washington, south to Douglas County, Oregon, and a
distance of 400 km (320 mi). This distribution implies a close
association with native upland prairie sites that are characterized by
heavier soils with mesic to slightly xeric soil moisture levels. At the
southern limit of its range, the subspecies occurs on well-developed
soils adjacent to serpentine outcrops where the plant is often found
under scattered oaks (Kuykendall and Kaye 1993a).
Lupinus sulphureus ssp. kincaidii is easily distinguished from
other sympatric members of the genus Lupinus with its low-growing habit
and unbranched inflorescence. Its aromatic flowers have a slightly
reflexed, distinctly ruffled banner, and are yellowish-cream colored,
often showing shades of blue on the keel. The upper calyx lip is short,
yet not obscured by the reflexed banner when viewed from above. The
leaflets tend to a deep green with an upper surface that is often
glabrous (smooth). The plants are 4 to 8 decimeters (dm) (16 to 32 in)
tall, with single to multiple unbranched flowering stems and basal
leaves that remain after flowering (Kuykendall and Kaye 1993a).
Lupinus sulphureus ssp. kincaidii is a long-lived perennial
species, with a maximum reported age of 25 years (M. Wilson, Oregon
State University, in litt., 1993). Individual plants are capable of
spreading by rhizomes (horizontal stems), producing clumps of plants
exceeding 20 meters (m) (66 feet (ft)) in diameter (P. Hammond,
independent consultant, pers. comm. 1994). The long rhizomes do not
produce adventitious roots (secondary roots growing from stem tissue),
apparently do not separate from the parent clump, and the clumps may be
short-lived, regularly dying back to the crown (Kuykendall and Kaye
1993a). L. sulphureus ssp. kincaidii is pollinated by solitary bees and
flies (P. Hammond, pers. comm. 1994). Seed set and seed production are
low, with few (but variable) numbers of flowers producing fruit from
year to year, and each fruit containing an average of 0.3-1.8 seeds
(Liston et al. 1994). Seeds are dispersed from fruits that open
explosively upon drying.
Erigeron Decumbens var. Decumbens
Thomas Nuttall (1840) based his description of Erigeron decumbens
on a specimen he collected in the summer of 1835. The autonym E.
decumbens var. decumbens was automatically established by Cronquist
(1947) when he described E. decumbens var. robustior. Recent revisions
of the Erigeron genus (Strother and Ferlatte 1988, Nesom 1989) treat
the plant as a variety, E. decumbens var. decumbens.
According to Strother and Ferlatte (1988), Erigeron decumbens var.
decumbens is geographically limited to the Willamette Valley and the
morphologically similar E. decumbens var. robustior is restricted to
Humboldt and western Trinity Counties, California. Intermediate
specimens of Erigeron from southern Oregon are considered by Strother
and Ferlatte (1988) to be robust specimens of E. eatonii var.
plantagineus.
Clark et al. (1993) reviewed herbarium specimens and found a
historical distribution of Erigeron decumbens var. decumbens throughout
the Willamette Valley. He found frequent collections from the period
between 1881 and 1934, yet no collections or observations from 1934 to
1980 (Clark et al. 1993). The species was rediscovered in 1980 in Lane
County, Oregon, and has since been identified at 28 sites in Polk,
Marion, Linn, Benton, and Lane Counties, Oregon. With only 28
occurrences and 116 ha (286 ac) of occupied habitat, E. decumbens var.
decumbens has the most restricted range of the species being listed
herein.
Erigeron decumbens var. decumbens is a perennial herb, 15 to 60 mm
(0.6 to 2.4 in) tall, with erect to sometimes prostrate stems at the
base. The basal leaves often wither prior to flowering and are mostly
linear, 5 to 12 cm (2 to 5 in) long and 3 to 4 mm (0.1 to 0.2 in) wide.
Flowering stems produce two to five heads, each of which is daisy-like,
with pinkish to pale blue ray flowers and yellow disk flowers. Ray
flowers often fade to white with age (Siddall and Chambers 1978). The
morphologically similar E. eatonii occurs east of the Cascade
Mountains, while the sympatric species Aster hallii flowers later in
the summer. In its vegetative state, Erigeron decumbens var. decumbens
can be confused with A. hallii, but close examination reveals the
reddish stems of A. hallii in contrast to the green stems of E.
decumbens var. decumbens (Clark et al. 1993).
As with many species in the family Asteraceae, Erigeron decumbens
var. decumbens produces large quantities of wind-dispersed seed.
Flowering typically occurs in June and July with pollination carried
out by syphrid flies and solitary bees. Seeds are released in July and
August. Although the seeds are wind-dispersed, the short stature of
this species likely prevents the long-distance travel of many of these
seeds. Erigeron decumbens var. decumbens is capable of vegetative
spreading and is commonly found in large clumps scattered throughout a
site (Clark et al. 1993).
Previous Federal Action
Erigeron decumbens var. decumbens was initially included as a
category 2 candidate in a Notice of Review (NOR) published by us on
December 15, 1980 (45 FR 82506). At that time, category 2 candidates
were those species for which we had information indicating that listing
may be appropriate, but for which additional information was needed to
support the preparation of a proposed rule. On November 28, 1983, we
published an NOR upgrading this species to category 1 status (48 FR
53649). At that time, category 1 taxa were those for which we had
sufficient data to support preparation of listing proposals.
Subsequently, E. decumbens var. decumbens was reassigned category 2
candidacy in an NOR published on September 27, 1985 (50 FR 39527). On
February 21, 1990, we published an NOR (55 FR 6202) that reinstated E.
decumbens var. decumbens as a category 1 candidate and also designated
Lupinus sulphureus ssp. kincaidii as a category 2 candidate (55 FR
6121). We published an NOR on February 28, 1996 (61 FR 7596), which
updated the candidate species list and discontinued the use of
categories. Erigeron decumbens var. decumbens was retained as a
candidate species (a candidate was defined as any taxa meeting the
definition of former category 1 species). Lupinus sulphureus ssp.
kincaidii and other former category 2 candidates were not retained as
[[Page 3879]]
candidates. Since that NOR was published, we have reevaluated the
available information and determined that listing is warranted for L.
sulphureus ssp. kincaidii.
Fender's blue butterfly was initially assigned to category 3A taxa
in the NOR published on January 6, 1989 (54 FR 572). The best available
information at that time indicated that this butterfly was likely
extinct because the subspecies had last been observed in 1937. Category
3A taxa were taxa for which we had pervasive evidence of extinction,
however, if rediscovered, such taxa might be reconsidered for listing.
The rediscovery of this butterfly in May 1989 prompted us to change the
status of the subspecies to a category 2 candidate in the NOR published
on November 21, 1991 (56 FR 58830). In the NOR published on February
28, 1996 (61 FR 7596), we retained Fender's blue butterfly as a
candidate for listing. On January 27, 1998, we published a proposed
rule (63 FR 3863) to list the Fender's blue butterfly (Icaricia
icarioides fenderi), Lupinus sulphureus ssp. kincaidii (Kincaid's
lupine), and Erigeron decumbens var. decumbens (Willamette daisy) under
the Act.
The processing of this final rule conforms with our Listing
Priority Guidance published in the Federal Register on October 22, 1999
(64 FR 57114). The guidance clarifies the order in which we will
process rulemakings. Highest priority is processing emergency listing
rules for any species determined to face a significant and imminent
risk to its well-being (Priority 1). Second priority (Priority 2) 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. The processing of
administrative petition findings (petitions filed under section 4 of
the Act) is the fourth priority. 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. This final rule is
a Priority 2 action and is being completed in accordance with the
current Listing Priority Guidance.
Summary of Comments and Recommendations
In the January 27, 1998, proposed rule (63 FR 3863) and associated
notifications, all interested parties were requested to submit factual
reports or information that might contribute to the development of a
final listing decision. Appropriate State agencies, county governments,
city governments, Federal agencies, scientific organizations, private
landowners, industrial landowners and other interested parties were
contacted and requested to comment. Newspaper notices inviting public
comments were published in the Oregonian on February 25-27, 1998, and
the Eugene Register Guard on February 26-27, 1998. Following the
publication of the proposed rule, we received 29 written comments
during the comment period.
Five commenters opposed, and 24 favored the listing of Erigeron
decumbens var. decumbens and Icaricia icarioides fenderi as endangered
and Lupinus sulphureus ssp. kincaidii as threatened. Several commenters
provided information on the status of, and threats to, various
populations of Erigeron decumbens var. decumbens, Icaricia icarioides
fenderi, and Lupinus sulphureus ssp. kincaidii that updated the
information presented in the proposed rule. We incorporated that
information into the Background and Summary of Factors Affecting the
Species sections of this final rule, and we took it into consideration
in the listing determination. We grouped comments questioning or
opposing the proposed rule into issues that are discussed below.
Issue 1: One commenter stated that the information presented in the
proposed rule was not accurate for his area and raised questions
regarding the accuracy of data in other areas.
Our Response: We reviewed all the data concerning information
regarding the area in question. On March 10, 1998, we sent three
detailed maps depicting the location of Lupinus sulphureus ssp.
kincaidii at the site and information we had on this locality to the
commenter. These maps showed the historical locations of butterflies
and L. sulphureus ssp. kincaidii in the area in question.
In our letter to the landowner, we sought clarification on the
status of the population that is/was apparently on the commenter's
land. Upon receipt of the letter, the landowner called us and informed
us that he did not know the status of the population in question but
could check later that summer.
On November 24, 1998, we contacted the landowner. The landowner
informed us that a fence in the area where Lupinus sulphureus ssp.
kincaidii occurred had been moved approximately 15 feet north. The area
between the old fence and the new fence where L. sulphureus ssp.
kincaidii had occurred was plowed. However, he thought that a couple L.
sulphureus ssp. kincaidii plants occurred along the new fenceline but
that the tall grass would probably eliminate them very shortly.
Issue 2: Two commenters opposed listing the Fender's blue butterfly
because the butterfly has 360 acres to live on and all food they need
if Lupinus sulphureus ssp. kincaidii is protected by listing.
Our Response: About 30 percent of the Fender's blue butterfly
occurs at seven sites across 52 ha (128 ac) of habitat where Lupinus
sulphureus ssp. kincaidii is not present and thus a substantial portion
of the butterflies would not be protected by listing the plant.
Although one purpose of the Act is to conserve ecosystems upon which
endangered and threatened species depend, its listing provisions apply
only to species rather than ecosystems (16 U.S.C. 1533).
Issue 3: Two commenters opposed the listing of the three species
because it was not stated how much of the 2,600,000 ha (6,400,000 ac)
of the Willamette Basin would be affected by this listing action.
Commenters expressed concern that farm acreage would be taken out of
production through this listing action and farm profits would be lost.
Our Response: The listing of the two plants and the butterfly will
impact only those habitat hectares (acres) currently occupied by the
species. Within this available habitat, Erigeron decumbens var.
decumbens occupies 28 sites across 116 ha (286 ac), L. sulphureus ssp.
kincaidii occupies 54 sites across 158 ha (370 ac), while Fender's blue
butterfly occupies 32 sites across 165 ha (408 ac). The Fender's blue
butterfly and L. sulphureus ssp. kincaidii co-occur at 25 sites across
113 ha (279 ac), and the E. decumbens var. decumbens co-occurs with
both the butterfly and L. sulphureus ssp. kincaidii on 1 upland site
across 49.5 ha (122 ac). Thus, the total area that would be impacted by
the listing of these three species is 276 ha (684 ac), not 2,600,000 ha
(6,400,000 ac).
Recovery planning for the species may include recommendations for
land acquisition or easements involving private landowners. Some of
these areas may be unoccupied prairie habitat. These efforts would be
undertaken only with the voluntary cooperation of the landowner. In the
majority of cases, private landowners are not prevented from using
their land in the manner originally intended. Within the Willamette
Valley wetland prairies, there are 26 sites across 116 ha (286 ac)
where Erigeron decumbens var. decumbens occurs and that would require
Federal regulatory agencies,
[[Page 3880]]
primarily the Corps, to ensure that certain actions on these sites,
including the issuance of wetland permits under section 404 of the
Clean Water Act, are not likely to jeopardize the continued existence
of this species. In some cases, the Corps may require that private
landowners who apply for permits reduce the scope or extent of their
proposed fill project if the fill would adversely affect E. decumbens
var. decumbens.
Landowners will be able to use occupied Fender's blue butterfly
habitat (165 ha (407 ac)) as long as the use does not involve the take
of the butterfly. The Act and its implementing regulations set forth a
series of prohibitions and exceptions that apply to endangered
wildlife, including prohibition of take (16 U.S.C. 1538). Take includes
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect; or to attempt any of these (16 U.S.C. 1532). Permits may be
issued to carry out otherwise prohibited activities involving
endangered wildlife under certain circumstances. If certain
requirements are met, these permits are available for incidental take
in connection with otherwise lawful activities.
Executive Order 12630, Government Actions and Interference with
Constitutionally Protected Property Rights, require that a Taking
Implication Assessment (TIA) be conducted ``as a part of the final
rulemaking to evaluate the risk of and strategies for avoidance of the
taking of private property.'' However, the Attorney General's
guidelines state that TIAs used to analyze the potential for Fifth
Amendment ``taking claims'' are to be prepared after, rather than
before, an agency makes a restricted discretionary decision. In
enacting the Act, Congress required the Department to list a species
based solely upon scientific and commercial data indicating whether or
not the species is in danger of extinction. We may not withhold a
listing based upon economic concerns. Therefore, even though a TIA may
be required, a TIA for a listing action is finalized only after the
final determination is made regarding whether to list the species.
Peer Review
In accordance with interagency policy published on July 1, 1994 (59
FR 34270), we solicited the expert opinions of appropriate and
independent specialists regarding pertinent scientific or commercial
biological and ecological data for Erigeron decumbens var. decumbens,
Fenders blue butterfly, and Lupinus sulphureus ssp. kincaidii. We
solicit such a review to ensure that listing decisions are based upon
scientifically sound data, assumptions, and analyses, including input
of appropriate experts and specialists.
Comments provided by Cathy L. Maxwell, Dr. Robert Michael Pyle,
Cheryl B. Schultz, and Dr. Mark Wilson, Associate Professor of Botany
and Plant Pathology at Oregon State University were incorporated into
the final rule. Cathy L. Maxwell; Dr. Robert Michael Pyle; Cheryl B.
Schultz; Dr. Mark Wilson; David Brittell, Assistant Director, Wildlife
Management Program, Washington Department of Fish and Wildlife; and
Diane S. Doss, Conservation Chair, Washington Native Plant Society,
supported our position that Erigeron decumbens var. decumbens and
Fender's blue butterfly were endangered and Lupinus sulphureus ssp.
kincaidii was threatened throughout their limited range in the
Willamette Valley of western Oregon and Boistfort Valley, Lewis County,
Washington.
Summary of Factors Affecting the Species
Section 4 of the Endangered Species Act and regulations (50 CFR
Part 424) issued to implement the listing provisions of the Act set
forth the procedures for adding species to the Federal lists. A species
may be determined to be an endangered or threatened species due to one
or more of the five factors described in section 4(a)(1). These factors
and their application to Fender's blue butterfly (Icaricia icarioides
fenderi), Lupinus sulphureus ssp. kincaidii (Kincaid's lupine), and
Erigeron decumbens var. decumbens (Willamette daisy) are as follows:
A. The present or threatened destruction, modification, or
curtailment of its habitat or range. Over the last 140 years, humans
have extensively altered native prairie in the Willamette Valley (see
Background section of this final rule), which has resulted in a loss of
greater than 99 percent of the only known habitat area for the Fender's
blue butterfly, Lupinus sulphureus ssp. kincaidii, and Erigeron
decumbens var. decumbens (E. Alverson, pers. comm. 1994).
Within the 88 remnants of native prairie occupied by these species
in the Willamette Valley, the Fender's blue butterfly occurs at 32
sites (Hammond and Wilson 1993, Schultz 1996), Lupinus sulphureus ssp.
kincaidii occurs at 54 sites (Kuykendall and Kaye 1993a), and Erigeron
decumbens var. decumbens occurs at 28 sites (Clark et al. 1993).
Fender's blue butterfly and L. sulphureus ssp. kincaidii are found in
close association, occurring together at a total of 26 sites. Erigeron
decumbens var. decumbens co-occurs with L. sulphureus ssp. kincaidii at
only one site and with Fender's blue butterfly at only this same site,
Baskett Butte. Typically these sites are small, with extirpation likely
in the near future. Activities that destroy, modify, or curtail the
habitat of L. sulphureus ssp. kincaidii, E. decumbens var. decumbens,
and Fender's blue butterfly are discussed below.
The immediacy of the threat of habitat loss in the last remaining
88 remnants of native prairie occupied by these species has been well
documented. Habitat at 80 percent of the sites (68 sites) is rapidly
disappearing due to agriculture practices, development activities,
forestry practices, grazing, roadside maintenance, and commercial
Christmas tree farming.
Agricultural Activities
Agricultural activities likely impact at least 12 prairie remnants.
Five of these remnants are wetland prairies occupied by Erigeron
decumbens var. decumbens, seven are upland prairies of which six are
occupied by Lupinus sulphureus ssp. kincaidii, and two are occupied by
Fender's blue butterfly. In one case, a wheat field boundary adjustment
near Buell in Polk County (Mill Creek Road South) is likely to lead to
loss of a population of Fender's blue butterfly and L. sulphureus ssp.
kincaidii (Hammond 1994). By 1996, this boundary adjustment was
implemented with a diminished population of L. sulphureus ssp.
kincaidii and Fender's blue butterfly still present. No Fender's blue
butterflies, however, were observed at this site in 1997 (Hammond,
pers. comm. 1997). The majority of the habitat supporting populations
of each of these species are habitat remnants, such as small habitat
patches remaining after other habitat loss has occurred. Small habitat
patches that occur along State and county roadsides face greater
threats from agriculture than those occurring along non-roadside areas.
In past decades, many roadside habitats were less disturbed, but today
roadside stretches of habitats adjoining grass seed farms are now being
disked and/or sprayed with herbicides to kill all roadside vegetation
(A. Robinson, U.S. Fish and Wildlife Service, pers. obs. 1997). Grass
seed farms commonly use herbicide spraying to create bare soil to
prevent the spread of weeds from roadsides into the grass seed fields.
Many of these roadside areas are inhabited by populations of E.
decumbens var. decumbens.
[[Page 3881]]
Development
Urban development has caused additional loss of prairie habitat
(Clark et al. 1993; Hammond and Wilson 1992a, 1992b 1992c, 1994, 1996;
Kuykendall and Kaye 1993a; Liston et al. 1994; Schultz, 1996; Sidall
and Chambers 1978). Destruction of upland prairie habitat occupied by
Fender's blue butterfly and Lupinus sulphureus ssp. kincaidii at
several sites since 1992 has caused the butterflies at these sites to
either completely die out or to be reduced to low, non-viable numbers.
Future losses for 47 prairie remnants are projected as a result of
urban development (Hammond 1994, 1996), which is the largest single
factor currently threatening the survival of these prairie species.
Nineteen of these remnants are wetland prairies supporting Erigeron
decumbens var. decumbens, and the other 28 are upland prairie remnants
supporting populations of Fender's blue butterfly and/or L. sulphureus
ssp. kincaidii.
Examples of this type of threat are the Dallas-Oakdale Avenue sites
1 and 2 covering about 2 ha (5 ac) occupied by Fender's blue butterfly
and Lupinus sulphureus ssp. kincaidii near the town of Dallas in Polk
County. These sites are expected to be lost due to planned housing
development (Hammond 1996). The loss of native prairie habitat is
further exemplified by the destruction of a site supporting 6,000
plants in Lane County, formerly the largest occurrence of Erigeron
decumbens var. decumbens, plowed under in 1986 prior to the development
of an industrial and residential site (Kagan and Yamamoto 1987).
Construction of a single driveway resulted in the loss of one site
occupied by Fender's blue butterfly and L. sulphureus ssp. kincaidii in
Kings Valley (Hammond 1994). Future highway construction potentially
threatens the Nielson Road site of E. decumbens var. decumbens located
in a highway expansion corridor in Lane County (USFWS 1994). The
populations of Fender's blue butterfly and L. sulphureus ssp. kincaidii
at Wren in Benton County occur at 2 sites and cover about 9 ha (22 ac).
Only a portion of the populations (7.4 ha) (18 ac) occur on land owned
by The Nature Conservancy (TNC). Heavy clearing and mowing activities
on private lands adjacent to the TNC property has caused the decline of
the lupine and is reducing the butterfly population at the Wren site to
a non-viable state (Hammond and Wilson 1993). At the Willow Creek Main
site, owned by TNC, Fender's blue butterfly and L. sulphureus ssp.
kincaidii occur together. This site is actively managed for the benefit
of the species, and the lands are considered relatively secure from
development threats. Although this TNC site is considered a secure
habitat area, extensive damage to habitat occupied by Fender's blue
butterfly and L. sulphureus ssp. kincaidii occurred in 1996 during
high-voltage power-line repair work conducted on a utility corridor
easement. Two other moderately sized habitat patches occupied by E.
decumbens var. decumbens face habitat loss from trash dumping (at the
Grande Ronde site) and urbanization (at the west Eugene site) (Clark et
al. 1993).
Forestry Practices
Silvicultural activities for timber production have threatened 6
percent (5 sites) of the remaining 88 prairie occurrences. The Coburg
Ridge area-2 site in Lane County is the largest site occupied by
Fender's blue butterfly and is among the best examples of remnant
upland native prairie in the Willamette Valley (Hammond 1994). Native
species were severely damaged, however, by the application of grass-
specific herbicide that eliminated grasses and severely damaged other
herbaceous species prior to tree planting activities. Approximately 4
ha (10 ac) were sprayed with herbicide. The saddle section of Coburg
Ridge (area-2) that received aerial application of the herbicide is
used by Fender's blue butterfly due to the presence of Lupinus
laxiflorus, an alternate host plant, but this site does not contain L.
sulphureus ssp. kincaidii (Schultz 1996). Loss of such alternate host
plant sites further limits the habitat that is available to support
Fender's blue butterfly. Additional tree-planting efforts by an
adjacent Coburg Ridge landowner threaten to alter a different portion
of the grassland in area-2, which has displayed the highest levels of
butterfly activity on Coburg Ridge in previous years (Schultz 1996).
This site received spot herbicide application during the planting
efforts, rather than the aerial broadcast method of the first case;
therefore, the immediate effects to the habitat were not as severe.
However, tree saplings were planted and as the trees grow they will
eventually shade out the native prairie species, resulting in the loss
of butterfly habitat.
Herbicide spraying associated with reforestation, after logging,
has also altered habitat and caused a decline of a Lupinus sulphureus
ssp. kincaidii population on Bureau of Land Management (BLM)
properties. At the BLM Letitia Creek Site, L. sulphureus ssp. kincaidii
is located within a timber sale unit proposed for future harvest at the
beginning of year 2020. The Callahan Ridge BLM site is located on the
boundary between timber available for harvest and a non-commercial
rocky area that has been withdrawn from the timber base. No timber
harvest has been scheduled for the timber portion of this site for the
next 30 years. The Letitia Creek area, where plants of L. sulphureus
ssp. kincaidii are located, was impacted when the jeep trail running
along the ridge was renovated and the surrounding forest selectively
logged. Renovation of the jeep road destroyed most of the plants along
the road and only a small portion of the original population remains.
The other large occurrence of the butterfly and L. sulphureus ssp.
kincaidii is in Benton County on McDonald State Forest and adjacent
private lands that could be similarly affected by surrounding
silvicultural operations.
Grazing
Grazing currently impacts 13 of the occupied habitat patches, with
5 of these being wetlands occupied by Erigeron decumbens var.
decumbens. Most of the habitat at the Oak Ridge south site, in Yamhill
County, occupied by Fender's blue butterfly and Lupinus sulphureus ssp.
kincaidii, has been lost due to heavy grazing (Hammond 1996). Another
site of L. sulphureus ssp. kincaidii, covering about 4.6 ha (11 ac) at
Crabtree Hill in Lane County, is being damaged by extensive livestock
grazing. The Crabtree Hill population of 6,000 plants is the largest
known L. sulphureus ssp. kincaidii population. At Boistfort Cemetery,
cattle grazing remains as a threat to the L. sulphureus ssp. kincaidii
population on the cemetery hill. Cattle at the Boistfort site had full
access to the cemetery hill in the mid-1980s when cattle trails criss-
crossed the hill and few lupines were observed (Maxwell in litt. 1998).
In 1986, Maxwell estimated the plants on the cemetery hill to be 50 to
60 individuals (Maxwell in litt. 1998). In 1991, after cattle were
removed from the site, Maxwell inventoried the cemetery hill and
estimated 1,685 individuals of L. sulphureus ssp. kincaidii, with 58
plants located on the west-facing side of the hill where there was no
evidence of cattle grazing, but where horses occurred (Maxwell in litt.
1998). Subsequent inventories at the cemetery site recorded similar
numbers of individuals as the 1991 data, with minimal increases and
decreases that could be accounted for by sampling error and
environmental fluctuation. These data suggest that the removal of
cattle from the hillside has helped to
[[Page 3882]]
increase the size of the L. sulphureus ssp. kincaidii population
(Maxwell in litt. 1998). Lupinus sulphureus ssp. kincaidii on the west-
facing part of the hill where horses continue to occur, however, show
evidence of trampling, and populations have not experienced a similar
upward trend (Maxwell in litt. 1998).
Roadside Maintenance
Another common threat to these species is roadside maintenance
activities. At least 34 sites occur along roadsides and are impacted by
maintenance activities. Five of these are wetland areas supporting
Erigeron decumbens var. decumbens. Twenty-nine are upland sites
(Lupinus sulphureus ssp. kincaidii occurs at 27 sites and Fender's blue
butterfly occurs at 11 sites). Populations of Fender's blue butterfly
and L. sulpheureus ssp. kincaidii were recently lost due to road
maintenance activities at the Oak Ridge north site. When planned
developments are completed on the Oak Ridge south site, the butterfly
and lupine will essentially be extirpated from the Oak Ridge area
(Hammond 1996). Two sites on Oregon Department of Transportation (ODOT)
property and one site on land owned by the City of Corvallis receive
only limited protection and could potentially be impacted by future
development and highway maintenance activities. Publicly owned roadside
sites receive varying degrees of protection on a district-by-district
basis. Although some roadside sites have been marked as no-spray zones
by the Native Plant Society of Oregon, this protective measure is not
always effective. The roadside portion of a L. sulphureus ssp.
kincaidii population in Kings Valley continues to receive herbicide
application during roadside weed control activities, despite efforts to
restrict spraying. Other roadside sites receive only sporadic
protection during herbicide application. Privately managed roadside
occurrences are also impacted by maintenance activities. Extensive
mowing at the Wren sites in Benton County and Fir Butte Road roadside
sites in Lane County have caused declines in Fender's blue butterfly
and L. sulphureus ssp. kincaidii populations (Hammond 1994).
With frequent weed control efforts ongoing, as well as highway and
driveway construction, small roadside occurrences of Fender's blue
butterfly, Lupinus sulphureus ssp. kincaidii, and Erigeron decumbens
var. decumbens are unlikely to persist. For example, another sensitive
species, Delphinium leucophaeum, in Boistfort Valley, Lewis County,
Washington, has been damaged by roadside herbicide spraying by the
County. The spraying swath is sometimes 0.9 to 1.2 m (3 to 4 ft.) wide.
Several D. leucophaeum plants were damaged by spray in 1991 (Maxwell in
litt. 1998). Botanists met with the roadside management crew in May of
1991 to point-out and discuss no-spray zones where D. leucophaeum
occur. Since then, D. leucophaeum plants have been lost twice because
of landowners spraying the roadsides to control weedy nonnative species
that invade their pastures and fields (Maxwell in litt. 1998). The L.
sulphureus ssp. kincaidii population within the Boistfort Valley does
not occur along the roadsides, but along a path that leads up to a
pioneer cemetery. Since monitoring began in 1991, a 3-m (1-ft) wide
strip has been sprayed with herbicides along the path and steps leading
up to the cemetery. Some of the Lupinus sulphureus ssp. kincaidii
plants are damaged by the annual spraying (Maxwell in litt. 1998).
Between 1994 and 1996, Fender's blue butterfly populations
disappeared from (or were considered no longer viable) at least seven
small roadside sites (Liberty Road, Monmouth Falls City Road, Fern
Corner, Grant Creek, and McTimmonds Valley in Polk County, and two
sites at Wren), and populations at many of the remaining roadside sites
continue to decline. Between 1990 and 1992, three sites occupied by
both Fender's blue butterfly and L. sulphureus ssp. kincaidii were lost
in the McTimmond's Valley to the expansion of Christmas tree farming
operations (Hammond 1994). Conversion of these three sites destroyed
approximately 3 ha (7 ac) of habitat along roadside and private land
that comprised the nucleus of two Fender's blue butterfly populations
and a substantial number of L. sulphureus ssp. kincaidii plants. The
two roadside occurrences of the butterfly that remain nearby are no
longer considered viable due to the loss of the source butterfly
populations and considerable numbers of L. sulphureus ssp. kincaidii
plants. We do not know if the two roadside occurrences still exist, but
if they do, they are not expected to persist for more than a few
additional years (Hammond 1994).
In summary, habitat loss from a wide variety of causes (e.g.,
urbanization, agriculture, silvicultural practices, and roadside
maintenance) is a severe problem faced by Fender's blue butterfly,
Lupinus sulphureus ssp. kincaidii, and Erigeron decumbens var.
decumbens at a majority of occupied sites. Land development and
alteration in the Willamette Valley has been so extensive that almost
all of the occurrences of the three species on the valley floor have
essentially been relegated to small patches of habitat. Agricultural
and urban development activities occurring on the valley floor have not
affected three hilltop areas (Baskett Slough National Wildlife Refuge,
Coburg Ridge, and McDonald State Forest) because of their topography.
Only 20 of the 88 remnant prairie sites that are occupied by 1 or more
of these species are currently not threatened with habitat destruction.
However, these 20 sites are threatened by herbivory, competition by
nonnative weedy species, and/or plant succession (see Factor E of this
final rule for additional discussion). As habitat loss continues on
these prairie remnants, populations of all 3 species in these 68 areas
are likely to be extirpated. At least 14 of 32 sites occupied by
Fender's blue butterfly, 49 of 54 sites occupied by L. sulphureus ssp.
kincaidii, and 24 of 28 sites occupied by E. decumbens var. decumbens
occur on private lands and are expected to be lost in the near future
unless conservation actions are implemented. The threat of extinction
for these species is high, given the expected continuing extirpation of
small populations, the continued habitat loss on moderate and large
sites, and the continuing degradation of habitat, even on secure sites.
B. Overutilization for commercial, recreational, scientific, or
educational purposes. Rare butterflies, such as Fender's blue butterfly
are highly prized by insect collectors. We know of no studies of the
impact of such removal of individuals from natural populations of
Fender's blue butterfly. However, studies of another lycaenid butterfly
(Duffey 1968) and an endangered nymphalid butterfly (Gall, 1984a and
1984b) suggest it is likely that Fender's blue butterfly could be
adversely affected by collection because of its small and isolated
populations. An international commercial trade of butterfly species
that are proposed for listing, as well as other imperiled or rare
butterflies, exists (C. Nagano, J. Mendoza, and C. Schroeder, USFWS,
pers. obs., 1992-1997), and we know of specimens of Fender's blue
butterfly that have recently been offered for trade (C. Nagano, pers.
obs.). Some collectors and dealers closely monitor our listing
activities, and have stockpiled rare butterflies in anticipation of
their designation as endangered or threatened species (C.D. Nagano and
J. Mendoza, pers. obs., 1992). Collecting from small colonies or
repeated handling and marking (particularly of females and in years of
low abundance) could seriously
[[Page 3883]]
damage the populations through loss of individuals and genetic
variability (Gall 1984b; Murphy 1988; Singer and Wedlake 1981).
Collection of females dispersing from a colony also can reduce the
probability that new colonies will be founded. Butterfly collectors
pose a threat because they may be unable to recognize when they are
depleting butterfly colonies below the thresholds of survival or
recovery, especially when they lack appropriate biological training or
the area is visited for a short period of time (Collins and Morris
1985).
The 1989 rediscovery of this insect generated a great deal of
publicity and interest, which in turn increased demand by collectors.
Therefore, remaining populations of Fender's blue butterfly face strong
pressure from some members of the collecting community. Collectors who
highly prize rare butterflies often take all wild specimens obtainable
for use in trade (U.S. Department of Justice, in litt. 1993). Because
many of the Fender's blue butterfly populations occur along public
roadsides, the species is easily acquired. The extremely limited
numbers and distribution of many of the remaining populations makes
this species vulnerable to extinction due to collection.
No current evidence exists of horticultural collection or other
overutilization for scientific purposes for either Erigeron decumbens
var. decumbens or Lupinus sulphureus ssp. kincaidii. However, the
potential threat posed by collecting for personal herbarium specimens
may be significant, particularly where populations are small, due to
the species' rarity and the relative accessibility of roadside
populations.
C. Disease or predation. Although most lepidopteran larvae suffer
significant mortality from parasitoid attack, no instances of
parasitism (Hammond and Wilson 1993) or disease (R.H.T. Mattoni, pers.
comm. to C. Nagano 1997) have been documented for Fender's blue
butterfly. Predation of adult Fender's blue butterflies by crab spiders
has been observed on at least two occasions (Schultz in litt. 1998).
The white and/or yellow crab spiders hide in the flowers of Lupinus
sulphureus ssp. kincaidii, and in a variety of species that the
Fender's blue butterfly uses for nectar, such as Allium amplectans
(Schultz in litt. 1998). Under normal circumstances, predation likely
was not a significant threat, but because the species has been reduced
to such low levels, predation may significantly impact the persistence
of remaining populations.
Lupinus sulphureus ssp. kincaidii evidently hosts a number of
herbivorous and parasitic insect species. Gall-forming insects attack
unopened flowers and the bases of woody stems. Weevils lay eggs in the
developing floral embryos, and their offspring stimulate the fruit to
produce callous tissue as a food source. Misdirection of the developing
fruit by weevil larvae effectively prevents viable seed formation in
the parasitized fruits (Kuykendall and Kaye 1993b). Weevil damage at
some sites (e.g., Willow Creek) can be high, with some plants suffering
90 percent loss of mature fruits (E. Alverson, pers. comm. 1994).
Herbivory has been documented at all three Fern Ridge Reservoir sites.
Loss of floral parts through herbivory can also significantly reduce
reproduction. Larvae of the silvery blue butterfly (Glaucopsyche
lygdamus) graze flowers for pollen and in doing so effectively destroy
them. At the Fir Butte site, silvery blue butterfly larvae cause
significant seed damage, as well as pollen damage to L. sulphureus ssp.
kincaidii. They often chew through maturing pods, devour some or all of
the seeds, then move on to the next pod (Schultz in litt. 1998).
Silvery blue larvae can reach high population densities at some of the
sites and may reduce the fecundity of L. sulphureus ssp. kincaidii, but
do not appear to cause the death of mature individual plants (C.
Schultz, pers. comm. 1994). On July 14, 1991, at the Boistfort Prairie
site, pods of L. sulphureus ssp. kincaidii were observed with larvae
feeding on them, and ants were feeding on the juices excreted from the
larvae (Maxwell in litt. 1998). In a sample of 10 L. sulphureus ssp.
kincaidii plants, 5 damaged pods were observed (Maxwell in litt. 1998).
In 1992, adult silvery blue butterflies were positively identified as
being present, and the caterpillars of the blues were observed feeding
on L. sulphureus ssp. kincaidii. In 1993, damage to L. sulphureus ssp.
kincaidii pods was observed again, but less than in the previous 2
years (Maxwell in litt. 1998). Under normal circumstances, insect
herbivory likely was not a significant threat, but because the species
has been reduced to such low levels, herbivory may significantly impact
the persistence of remaining populations.
Evidence of insect herbivory on Erigeron decumbens var. decumbens
is limited. Insect species collected on E. decumbens var. decumbens in
1993 included sap-sucking insects (Hemiptera), a bruchid beetle,
thrips, and mites (Clark et al. 1993). Other threats from herbivory
include consumption of E. decumbens var. decumbens by cattle. However,
no plants were found in areas currently or recently grazed during
surveys conducted in 1986 (Kagan and Yamamoto 1987), and only one site
was observed to support E. decumbens var. decumbens in the presence of
cattle in 1993 (Clark et al. 1993).
D. The inadequacy of existing regulatory mechanisms. In 1963, the
protection of natural botanical resources by the State of Oregon was
initiated with the passage of the Oregon Wildflower Law (ORS 564.010-
564.040). This law was designed to protect specific showy botanical
groups including lilies, shooting stars, orchids, and rhododendrons
from collection and trade by horticulturists interested in the
cultivation of these species. It also prohibits the collection of
wildflowers from ``within 500 feet of the centerline of any public
highway'' (ORS 564.020 (2)). Although protective in spirit, the Oregon
Wildflower Law carries minimal penalties and is rarely enforced. We
doubt that this law is effective in protecting Lupinus sulphureus ssp.
kincaidii and Erigeron decumbens var. decumbens populations.
In 1987, Oregon Senate Bill 533 was passed to augment the
legislative actions available for the protection of the State's
threatened and endangered species, both plant and animal. This bill,
known as the Oregon Endangered Species Act, mandates responsibility for
threatened and endangered species in Oregon to two State agencies--the
Oregon Department of Agriculture (ODA) for plant species (ORS 564.105)
and the Oregon Department of Fish and Wildlife (ODFW) for ``wildlife''
species (ORS 496.172). As re-authorized in 1995 (HB 2120), the Oregon
Endangered Species Act does not include invertebrate animals in the
definition of ``wildlife.'' Therefore, Fender's blue butterfly receives
no protection under the Oregon Endangered Species Act. The Oregon
Natural Heritage Program is the only State agency ``which tracks
locations of and works to protect the rare, threatened and endangered
invertebrates of Oregon'' (Oregon Natural Heritage Program 1993). The
Heritage program has created a Sensitive Species invertebrate list,
which includes Fender's blue butterfly as a ``priority 1 species.''
Priority 1 species are ``taxa that are threatened or endangered
throughout their range'' (Oregon Natural Heritage Program 1993). The
program can assist planning agencies in managing lands for the benefit
of rare invertebrate taxa, but it has no regulatory authority over rare
[[Page 3884]]
invertebrates (Jimmy Kagan, Oregon Natural Heritage Program, pers.
comm. 1997).
The Oregon Endangered Species Act directs the ODA to maintain a
strong program to conserve and protect native plant species classified
by the State as threatened or endangered. Erigeron decumbens var.
decumbens, as a State-listed endangered species, and Lupinus sulphureus
ssp. kincaidii, as a State-listed threatened species, receive
protection on State-managed lands under the Oregon Endangered Species
Act. The ODA is able to regulate the import, export, or trafficking of
State-listed plant species when they are in transit (under ORS
564.1200). The ODA's ability to protect plant populations, by
restricting take under the Oregon Endangered Species Act, is limited to
``land owned or leased by the state, or for which the state holds a
recorded easement'' (ORS 564.115). ``Nothing in ORS 564.100 to 564.130
is intended . . . to require the owner of any commercial forest land or
other private land to take action to protect a threatened species or
endangered species'' on their lands (ORS 564.135 (1)). As a result,
populations of L. sulphureus ssp. kincaidii and E. decumbens var.
decumbens on private lands receive minimal protection from their State
status as endangered or threatened.
ODOT owns and manages roadside habitat where Lupinus sulphureus
ssp. kincaidii and Erigeron decumbens var. decumbens are present. The
Oregon Endangered Species Act requires the protection of these State-
listed species on this State-managed land. In conjunction with Oregon
State University researchers and the Native Plant Society of Oregon,
ODOT has responded by providing road crews with maps of these areas and
instructions to avoid herbicide use in these areas.
Lupinus sulphureus ssp. kincaidii, Erigeron decumbens var.
decumbens, and Fender's blue butterflies receive protection within the
boundaries of the Service's National Wildlife Refuges. All three
species occur together only at Baskett Slough National Wildlife Refuge,
where habitat for the benefit of these species is actively managed.
The BLM and the Forest Service (FS) manage lands occupied by
Lupinus sulphureus ssp. kincaidii. On lands managed by the BLM, this
species receives some protection through a general conservation
agreement that applies to all Federal candidate species on BLM
properties. The population of L. sulphureus ssp. kincaidii that occurs
in the Umpqua National Forest is not covered under any conservation
agreement.
On Corps lands, discretion for the protection and management of
State-listed and Federal candidate species lies at the local level.
Funds may be available in some years to proactively manage these
species. Lupinus sulphureus ssp. kincaidii, Erigeron decumbens var.
decumbens, and Fender's blue butterfly have received habitat
protection, as well as support for research activity from the Corps
through allocation of personnel and supplies to these projects. This
protection and cooperation is voluntary for candidate species and is
dependent on the continuation of sufficient funding.
Populations of Erigeron decumbens var. decumbens occur in
seasonally flooded wet prairies with hydric soils (Clark et al. 1993).
Under section 404 of the Clean Water Act (CWA), the Corps regulates the
discharge of fill into waters of the United States, including navigable
waters, wetlands (e.g., wet prairies), and other waters (33 CFR parts
320-330). The CWA requires project proponents to obtain a permit from
the Corps prior to undertaking many activities (e.g., grading,
discharge of soil or other fill material) that would result in the
filling of wetlands subject to the Corps' jurisdiction. The Corps
published nationwide permit number 26 (NWP 26) to address fill of
isolated or headwater wetlands. Under the 1996 reauthorization of NWP
26 (61 FR 65873), the Corps may automatically approve project proposals
that involve the fill of wetlands less than 0.13 ha (0.33 ac) in size.
Filling areas between 0.13 ha and 0.4 ha (0.33-1 ac) requires only
notification to the Corps. When placement of fill would adversely
modify between 0.4 and 1.2 ha (1 and 3 ac) of wetland, the Corps
circulates a pre-discharge notification to us and other interested
parties for comment to determine whether an individual permit should be
required for the proposed fill activity and associated impacts.
Individual Corps permits are required for discharge of material
that would fill or adversely modify greater than 1.2 ha (3 ac) of
wetlands. The review process for individual permits is more rigorous
than for nationwide permits. Unlike nationwide permits, a cumulative
analysis of wetland impacts is required for individual permit
applications. Resulting permits may include special conditions that
require potential avoidance or mitigation for environmental impacts. On
nationwide permits, the Corps has discretionary authority to require an
individual permit if the Corps believes that resources are sufficiently
important, regardless of the wetland's size. In practice, however, the
Corps generally does not require an individual permit when a project
qualifies for a nationwide permit unless a threatened or endangered
species or other significant resources would be adversely affected by
the proposed activity. When a listed species may be affected,
consultation requirements of section 7 of the Act do pertain to the
Corps' regulatory process.
Disking and some other farming, ranching, and silvicultural
practices can degrade or destroy wetland habitat without a permit from
the Corps because these activities are exempt from regulation under the
CWA (33 CFR 323.4(a)). The discontinuous configuration of the existing
wet prairies further obscures these wetland losses. Occurrences of
Lupinus sulphureus ssp. kincaidii and Fender's blue butterfly in upland
(non-wetland) areas receive no protection under section 404 of the CWA.
The primary inadequacies in existing regulatory mechanisms pertain
to populations of Fender's blue butterflies, Lupinus sulphureus ssp.
kincaidii, and Erigeron decumbens var. decumbens that occur on private
lands. Privately owned lands where populations of these species occur
constitute a significant portion of the range of these species and play
a substantial role in their continued existence.
E. Other natural or manmade factors affecting its continued
existence. The small and fragmented populations characteristic of the
remaining Fender's blue butterfly, Lupinus sulphureus ssp. kincaidii,
and Erigeron decumbens var. decumbens constitute a factor in affecting
the continued existence of these taxa. Small populations are more
vulnerable to all the natural and manmade factors that would not likely
negatively influence relatively large and contiguous populations.
Generally, the direct and indirect effects of small population size on
most species, plant and animal, include loss of connectivity for
dispersal, a decrease in genetic exchange, a resultant loss of
population viability and vigor, and a hastening towards extinction
(Gilpin and Soule 1986).
Although few large sites (greater than 10 ha (25 ac)) are secure
from habitat loss, large sites currently support relatively stable
populations of Fender's blue butterflies, Lupinus sulphureus ssp.
kincaidii, and Erigeron decumbens var. decumbens and provide the
greatest potential for long-term persistence of the species if the
current condition of these sites can be sustained or improved. The only
large site occupied
[[Page 3885]]
by all of the species and that is considered relatively secure from
habitat loss is Baskett Slough National Wildlife Refuge in Polk County,
although the habitat condition is declining from invasion by nonnative
weedy species (Hammond 1994, 1996; Hammond and Wilson 1993; Schultz
1994). The two remaining large butterfly sites (Coburg Ridge area-1 and
2, and McDonald State Forest 1) and the one remaining large L.
sulphureus ssp. kincaidii site (McDonald State Forest 1) are not
considered secure because these sites face loss or degradation of
habitat through adjacent silviculture operations, ecological succession
to shrub and forest, and competition from nonnative weedy species
(Hammond 1994, Kuykendall and Kaye 1993a).
Erigeron decumbens var. decumbens occupies three large sites. One
site on Corps property and another on TNC property are being managed to
benefit native prairie species and are relatively secure. The third
site occurs on private land and is not managed for native prairie
species and is not protected from habitat loss.
The sites with small acreage where these three taxa occur, such as
roadside and fence line/boundaries, face an immediate threat of
destruction from a variety of disturbances. These disturbances include
development, agriculture, silvicultural practices, roadside
maintenance, and herbicide application. Of the 54 sites occupied by
Lupinus sulphureus ssp. kincaidii, 45 occur on less than 3.4 ha (8.3
ac). On sites where Fender's blue butterflies are found to co-occur
with L. sulphureus ssp. kincaidii, a similar pattern is suggested, with
24 of the 32 populations occurring on parcels of 3.4 ha (8.3 ac) or
less. Of the 28 sites occupied by Erigeron decumbens var. decumbens, 20
are less than 3.4 ha (8.3 ac).
Given the impact of such habitat losses on these small habitat
patches, the extirpation of most of the small Fender's blue butterfly
populations is anticipated within the next 5 years. Lupinus sulphureus
ssp. kincaidii may, however, survive for a longer time in these small
sites. Nonetheless, because of the extensive habitat loss caused by
development and agriculture, the extirpation of L. sulphureus ssp.
kincaidii on the 45 small sites is also anticipated in the future.
Similarly, these habitat losses are expected to also cause the
extirpation of the 20 small populations of Erigeron decumbens var.
decumbens. Should these smaller populations disappear, only large
habitat sites will be left. Only eight sites of Fender's blue butterfly
(75 percent reduction), nine sites of L. sulphureus ssp. kincaidii (74
percent reduction), and eight sites of E. decumbens var. decumbens (72
percent reduction) will remain.
The importance of these small populations, particularly for the
Fender's blue butterfly, lies in their potential to serve as stepping
stones between larger neighboring populations. The loss of these
populations and the accompanying potential habitat would severely
compromise the ability of Lupinus sulphureus ssp. kincaidii and
Erigeron decumbens var. decumbens or the Fender's blue butterfly to
disperse from larger sites (Hammond and Wilson 1993, Schultz 1996).
Larger populations would become more isolated and extinction-prone as
opportunities for migration and/or recolonization are limited.
A less visible threat to the smaller populations is a decrease in
vigor and viability. For the Fender's blue butterfly, small numbers and
localized populations increase the risk of loss through random genetic
or demographic factors. (Gilpin and Soule 1986, Kuykendall and Kaye
1993b, Lacy 1992, Hammond and Wilson 1993). Nineteen of the 32 Fender's
blue butterfly sites contain an estimated 50 or fewer individuals. The
threat of extinction due to naturally occurring genetic or demographic
events can play a significant role in the instability of the species as
a whole. The isolation of these small populations due to habitat
fragmentation limits the potential for dispersal and migration and the
resultant exchange of genetic material. Small, isolated populations
with no opportunity of rescue from neighboring populations more easily
become non-viable and/or extirpated.
This pattern of extinction and re-colonization of connected
colonies of butterflies has been disrupted by the extensive
fragmentation of remaining habitat and the disruption of the
disturbance regimes that have maintained them. The remnant populations,
now small in numbers, are either unconnected or exchange individuals to
a very limited degree. With their limited dispersal abilities, low
numbers, and dwindling habitat, a majority of the remaining populations
of Fender's blue butterfly likely face permanent extirpation.
The effects of random environmental events are magnified in small
populations. For instance, one small population of Erigeron decumbens
var. decumbens previously found on Finley National Wildlife Refuge was
lost due to erosion from a natural change in a waterway course (Meinke
1980). Large fluctuations in Fender's blue butterfly populations have
been correlated with random variations in weather conditions from year
to year (Shultz 1996). These large fluctuations make Fender's blue
butterfly extremely susceptible to loss of habitat and host plants due
to human-caused disturbance or invasive nonnative plants. Maxwell (in
litt. 1998) observed fluctuations in the inventory counts for both
Lupinus sulphureus ssp. kincaidii and Delphinium leucophacum over a 4-
year period on the Boistfort Prairie. Lupinus sulphureus ssp. kincaidii
counts ranged from 742 to 2,266 plants and strong evidence existed that
these fluctuations in numbers were closely tied to weather patterns
(Maxwell in litt. 1998). The timing of spring rains is very critical
for production of above-ground biomass for these two species. In years
with lower than average precipitation, these plant species may not even
appear.
A serious long-term threat to all Fender's blue butterfly, Lupinus
sulphureus ssp. kincaidii, and Erigeron decumbens var. decumbens sites
is the change in community structure due to plant succession.
Continuing plant succession has been documented on 70 of the 88 relic
prairie sites occupied by 1 or more of these species. Invasion by alien
plant species has been documented at 37 of these 88 prairie sites. The
natural transition of grassland to forest in the absence of disturbance
such as fire will lead to the eventual loss of these prairie sites
unless they are actively managed (Clark et al. 1993; Franklin and
Dyrness 1973; Hammond and Wilson 1993; Johannsesen et al. 1971;
Kuykendall and Kaye 1993a). The presence of tall, fast-growing
nonnative species speeds the conversion of upland native prairie to
dense, rank grasslands and shrub lands. Invasive woody species of
concern include nonnative plants such as Rubus discolor (Himalayan
blackberry) and Cytisus scoparius (Scotch broom), and the native
species Toxicodendron diversiloba (poison oak). Nonnative weedy
herbaceous species include Cirsium arvense (Canada thistle). Nonnative
grass species aggressive enough to suppress L. sulphureus ssp.
kincaidii and E. decumbens var. decumbens include Holcus lanatus
(velvet grass), Dactylis glomerata (orchard grass), Brachypodium
sylvaticum (false-brome), and Arrhenatherum elatius (tall oat-grass)
(Hammond 1996).
At prairie remnant roadside sites, the degree of the threat of
succession varies, depending on the vegetation control employed by each
county. Many Fender's blue butterfly populations are close to local
extinction at small
[[Page 3886]]
roadside sites. Populations along the roadside generally have low
numbers of individuals because habitat, often degraded, can be invaded
by nonnative grasses. This situation usually leads to succession by
shrubs and trees (Hammond 1996). For instance, one roadside site at Oak
Ridge previously considered stable has declined since 1992 because
large thickets of Rubus ssp. (blackberry) and Cytisus scoparius have
invaded the site (Hammond 1996).
Non-roadside prairie remnant sites in general face the greatest
threat from succession/weed expansion and invasion due to a lack of
disturbance that disrupts successional progress. For instance,
otherwise secure habitat on one Corps site has been heavily invaded by
the nonnative plant Arrhenatherum elatius. The Fender's blue butterfly
population on this site is becoming extremely small (Schultz 1996).
Prime habitat occupied by Erigeron decumbens var. decumbens at the
Baskett Butte site is rapidly being overtaken by native woody plants,
nonnative grasses and trees (Hammond 1996). Approximately 25 percent of
the large Coburg Ridge site occupied by Fender's blue butterfly and
Lupinus sulphureus ssp. kincaidii is threatened by the profuse shrub
growth of Cytisus scoparius (Hammond 1996). Regardless of the size of
the site, invasion by nonnative plants is a threat at all sites
occupied by any of the three species addressed in this rule.
Compounding the threat of nonnative plant species is the control of
weedy nonnative species by herbicides. Twenty-three Lupinus sulphureus
ssp. kincaidii plants on the west side of the Boistfort Cemetery hill
site were damaged by herbicide spray applied by a helicopter to
eradicate Scotch broom and Canada thistle (Maxwell in litt. 1998). The
application of pesticides and biological control agents to control
insect pests, such as gypsy moths, is also a threat to Fender's blue
butterfly. The potential threat from use of gypsy moth control agents
on habitats occupied by the Fender's blue butterfly should not be
dismissed even though the sensitivity of Fender's blue butterfly larvae
to specific insecticides is not known (Hammond 1994). The use of
microbial insecticides, such as Bacillus thuringiensis (Bt), has been
shown to have significant residual toxic impacts on native butterflies.
This negative impact is evident under field conditions, even with heavy
rain and ultraviolet light exposure (Scriber and Gage 1995).
Summary
Natural and human-caused factors threaten the remaining populations
of Fender's blue butterflies, Lupinus sulphureus ssp. kincaidii, and
Erigeron decumbens var. decumbens. As a result of their small size,
nearly all of the populations are threatened by either nonnative
species, natural succession, or demographic and genetic factors.
Populations of Fender's blue butterfly at all 32 sites currently are
threatened by at least 1 of these factors. All 28 sites of E. decumbens
var. decumbens and all 54 sites of L. sulphureus ssp. kincaidii are
threatened by these factors. The encroachment of nonnative plants, the
successional advance of tree and shrub species, and other naturally
occurring random events will, if unchecked, lead to further reductions
in population size and number leading to reduced population viability
and, ultimately, the extinction of these three native prairie species.
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
faced by these species in developing this final rule. Threats to
Fender's blue butterfly are more imminent than threats to Lupinus
sulphureus kincaidii because the butterfly has a unique biology and
shorter lifespan. Fender's blue butterfly will exhibit more rapid
declines in numbers and in the face of threats will be extirpated more
quickly at any one location than either of the two plant species.
Because of the longer lifespan of a perennial plant, small numbers of
L. sulphureus ssp. kincaidii plants are likely to persist longer in any
given habitat than are small numbers of butterflies. The threats to
Erigeron decumbens var. decumbens are more imminent than threats to L.
sulphureus ssp. kincaidii because of the small number of E. decumbens
var. decumbens populations. Also, many of the E. decumbens var.
decumbens populations grow along roadsides adjacent to agricultural
development (especially grass seed farms) where herbicide spraying to
create bare soil is common practice. Based on our evaluation of all the
available information, Fender's blue butterfly and E. decumbens var.
decumbens are presently in danger of extinction throughout all or a
significant portion of their respective ranges, while L. sulphureus
ssp. kincaidii is likely to become endangered within the foreseeable
future. Therefore, we find that listing of Fender's blue butterfly
(Icaricia icarioides fenderi) and E. decumbens var. decumbens
(Willamette daisy) as endangered is appropriate, and listing of L.
sulphureus ssp. kincaidii (Kincaid's lupine) as threatened is
appropriate.
Critical Habitat
Critical habitat is defined in section 3(5)(A) of the Act as (i)
the specific areas within the geographical area occupied by a species,
at the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. The term ``conservation'' means the use of all methods and
procedures needed to bring the species to the point at which listing
under the Act is no longer necessary (16 U.S.C. 1532(3)(5)(A)).
Our regulations (50 CFR 424.12(a)(1)) state that designation of
critical habitat is not prudent when one or both of the following
situations exist--(1) The species is threatened by taking or other
human activity and identification of critical habitat can be expected
to increase the degree of threat to the species, or (2) such
designation of critical habitat would not be beneficial to the species.
In the proposed rule, we indicated that designation of critical
habitat was not prudent for Fender's blue butterfly (Icaricia
icarioides fenderi), Lupinus sulphureus ssp. kincaidii (Kincaid's
lupine), and Erigeron decumbens var. decumbens (Willamette daisy)
because of a concern that publication of precise maps and descriptions
of critical habitat in the Federal Register could increase the
vulnerability of these species to incidents of collection and/or
vandalism. We also indicated that designation of critical habitat was
not prudent because we believed the limited benefit provided by
designation was outweighed by the increase in threats from collection
and/or vandalism.
In the last few years, a series of court decisions have overturned
our 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 have reexamined the question of whether critical habitat
for Fender's blue butterfly (Icaricia
[[Page 3887]]
icarioides fenderi), Lupinus sulphureus ssp. kincaidii (Kincaid's
lupine), and Erigeron decumbens var. decumbens (Willamette daisy) would
be prudent.
Due to the small number of populations, Fender's blue butterfly
(Icaricia icarioides fenderi), Lupinus sulphureus ssp. kincaidii
(Kincaid's lupine), and Erigeron decumbens var. decumbens (Willamette
daisy) are vulnerable to unrestricted collection, vandalism, or other
disturbance. We remain concerned that these threats might be
exacerbated by the publication of critical habitat maps and further
dissemination of locational information. However, we have examined the
evidence available for Fender's blue butterfly (Icaricia icarioides
fenderi), Lupinus sulphureus ssp. kincaidii (Kincaid's lupine), and
Erigeron decumbens var. decumbens (Willamette daisy) and have not found
specific evidence of taking, vandalism, collection, or trade of these
species 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 these 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 these
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 these 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 find that
critical habitat designation is prudent for Fender's blue butterfly
(Icaricia icarioides fenderi), Lupinus sulphureus ssp. kincaidii
(Kincaid's lupine), and Erigeron decumbens var. decumbens (Willamette
daisy).
The 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. We will undertake critical habitat determinations and
designations during FY 2000 as allowed by our funding allocation for
that year. As explained in detail in the Listing Priority Guidance, our
listing budget is currently insufficient to allow us to immediately
complete all of the listing actions required by the Act. Deferral of
the critical habitat designation for Fender's blue butterfly (Icaricia
icarioides fenderi), Lupinus sulphureus ssp. kincaidii (Kincaid's
lupine), and Erigeron decumbens var. decumbens (Willamette daisy) 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 Fender's blue
butterfly (Icaricia icarioides fenderi), Lupinus sulphureus ssp.
kincaidii (Kincaid's lupine), and Erigeron decumbens var. decumbens
(Willamette daisy) without further delay. However, because we have
successfully reduced, although not eliminated, the backlog of other
listing actions, we anticipate in FY 2000 and beyond giving higher
priority to critical habitat designation, including designations
deferred pursuant to the Listing Priority Guidance, such as the
designation for these species, than we have in recent fiscal years.
We plan to employ a priority system for deciding which outstanding
critical habitat designations should be addressed first. We will focus
our efforts on those designations that will provide the most
conservation benefit, taking into consideration the efficacy of
critical habitat designation in addressing the threats to the species,
and the magnitude and immediacy of those threats. We will develop a
proposal to designate critical habitat for the Fender's blue butterfly
(Icaricia icarioides fenderi), Lupinus sulphureus ssp. kincaidii
(Kincaid's lupine), and Erigeron decumbens var. decumbens (Willamette
daisy) as soon as feasible, considering our workload priorities.
Unfortunately, for the immediate future, most of Region 1's listing
budget must be directed to complying with numerous court orders and
settlement agreements, as well as due and overdue final listing
determinations (like the one at issue in this case).
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
activities. Recognition through listing encourages and results in
conservation actions by Federal, State, and private agencies, groups,
and individuals. The Act provides for possible land acquisition and
cooperation with the States and requires that recovery actions be
carried out for all listed species. The protection required of Federal
agencies and the prohibitions against taking and harm of animals and
certain activities involving listed plants are discussed, in part,
below.
Section 7(a)(2) 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. If a species is listed, section 7(a)(2) requires Federal
agencies to ensure that activities they authorize, fund, or carry out,
are not likely to jeopardize the continued existence of such a species
or to destroy or adversely modify its critical habitat. If a Federal
action is likely to adversely affect a listed species or its critical
habitat, the responsible Federal agency must enter into formal
consultation with us.
The Federal Highway Administration provides partial funding for
State highway maintenance. Therefore, any roadside habitat supporting
Erigeron decumbens var. decumbens, Lupinus sulphureus ssp. kincaidii,
and/or Fender's blue butterfly populations would be subject to section
7 consultation on any federally funded maintenance activities. Also, if
the U.S. Department of Housing and Urban Development, a Federal agency,
is involved in the issuance of housing loans on private property
supporting occurrences of E. decumbens var. decumbens, L. sulphureus
ssp. kincaidii, or Fender's blue butterfly, such loans would be subject
to review under section 7 of the Act. The BLM, FS, and Corps manage
lands that are
[[Page 3888]]
known to contain existing populations of E. decumbens var. decumbens,
L. sulphureus ssp. kincaidii, and Fender's blue butterfly. In these
cases, consultation requirements placed upon Federal agencies by the
Act would be required for actions that may affect these species.
Furthermore, opportunities for land acquisition, conservation
agreements, and other recovery strategies would be bolstered by listing
these species as endangered or threatened.
Active management of native prairie remnants is being carried out
by the Portland District Corps, our Western Oregon National Wildlife
Refuge complex, Eugene District BLM, and the Washington and Oregon
field offices of TNC. In 1997, the Corps initiated an attempt to create
two new Lupinus sulphureus ssp. kincaidii populations from seed
collected from five areas around Fern Ridge Reservoir. One site was
adjacent to the Green Oaks site at Fern Ridge, and the other is at Row
Point at Dorena Reservoir. Both are on Corps lands and both are
protected. Thirty-nine seedlings resulted at Row Point and 200
seedlings survived at Green Oak in 1998.
We have conducted research at Baskett Slough National Wildlife
Refuge on the effects of prescribed fire, fire suppression, mowing, and
herbicide on native and nonnative prairie species including Lupinus
sulphureus ssp. kincaidii and Erigeron decumbens var. decumbens and
Fender's blue butterflies. We have also controlled tall oatgrass in
Fender's blue butterfly habitat and completed demographic studies of E.
decumbens var. decumbens. In addition to efforts directed at managing
and rehabilitating the remnant prairie habitat on Baskett Butte, we
have been involved in projects to restore prairie habitat in former
farm fields on Baskett Slough and William L. Finley National Wildlife
Refuges. At the William L. Finley Refuge, the population of E.
decumbens var. decumbens that was lost to erosion during the 1980s
along a cut bank of Muddy Creek was located less than 0.5 km (0.3 mi)
from a field that was retired from cultivation for the purpose of a
prairie restoration project. The current intent is to reestablish
Erigeron decumbens var. decumbens on this restored prairie. Also, Bald
Top Knoll of the William L. Finley National Wildlife Refuge has been
identified as a potential restoration site for the Willamette Valley
dry prairie ecotype.
Management of the six prairie remnants in the west Eugene wetlands
of Lane County on BLM lands includes control of nonnative invasive
species, primarily blackberry, tansy ragwort, meadow knapweed, and
Scotch broom. BLM will use methods such as tractor mowing, hand pulling
or cutting, and will remove native hardwoods and/or conifers needed to
maintain these prairie remnants. As part of the West Eugene Wetlands
Acquisition Program, BLM will acquire additional habitat supporting
sensitive Willamette Valley prairie species as opportunities occur.
At the Boistfort Cemetery, extensive Canada thistle patches at the
base of the south side of the hill near Lupinus sulphureus ssp.
kincaidii were pulled by TNC volunteers in 1993. On June 25, 1994, TNC
volunteers pulled Canada thistle and cut scotch broom on the north side
of the hill. Volunteers did weed control by hand at this private site
to aid the landowner and in turn reduce herbicide use thus helping to
preserve rare plant populations.
On the TNC Willow Creek Natural Area, seedlings of Lupinus
sulphureus ssp. kincaidii were introduced initially in 1995, then again
in the fall of 1996, the spring of 1997, and the spring of 1998. TNC
plans to continue monitoring through the year 2000 to evaluate how
successful these efforts were.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered and
threatened plants. The prohibitions of section 9(a)(2) of the Act,
implemented by 50 CFR 17.61 for endangered plants and 50 CFR 17.71 for
threatened plants, apply. These prohibitions, in part, make it illegal
for any person subject to the jurisdiction of the United States to
import or export, transport in interstate or foreign commerce in the
course of a commercial activity, sell or offer for sale in interstate
or foreign commerce, or remove and reduce the species to possession
from areas under Federal jurisdiction. In addition, for plants listed
as endangered, the Act prohibits the malicious damage or destruction of
the plants 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, or in the course of a
violation of State criminal trespass law (see 16 U.S.C. 1538
(a)(2)(B)). Section 4(d) of the Act allows for the provision of such
protection to threatened species through regulation. This protection
may apply to Lupinus sulphureus ssp. kincaidii in the future if a
special regulation is issued after opportunity for public notice and
comment. Seeds from cultivated specimens of threatened plants are
exempt from these prohibitions provided that their containers are
marked ``Of Cultivated Origin.'' Certain exceptions to the prohibitions
apply to agents of the Service and State conservation agencies.
The Act and 50 CFR 17.62, 17.63, and 17.72 also provide for the
issuance of permits to carry out otherwise prohibited activities
involving endangered and threatened plants under certain circumstances.
Such permits are available for scientific purposes and to enhance the
propagation or survival of the species. For threatened plants, permits
also are available for botanical or horticultural exhibition,
educational purposes, or special purposes consistent with the purposes
of the Act. It is anticipated that few trade permits would ever be
sought or issued because Lupinus sulphureus ssp. kincaidii and Erigeron
decumbens var. decumbens are not common in cultivation or in the wild.
The Act and implementing regulations also set forth a series of
general prohibitions and exceptions that apply to all endangered
wildlife. These prohibitions, in part, make it illegal for any person
subject to the jurisdiction of the United States to take (includes
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect;
or to attempt any of these), import or export, ship in interstate
commerce in the course of commercial activity, or sell or offer for
sale in interstate or foreign commerce any listed species. It also is
illegal to possess, sell, deliver, carry, transport, or ship any such
wildlife that has been taken illegally. Certain exceptions apply to
agents of the Service and State conservation agencies.
Permits may be issued to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.22 and 17.23. Such permits
are available for scientific purposes, to enhance the propagation or
survival of the species, and/or for incidental take in connection with
otherwise lawful activities.
Our policy, as published in the Federal Register on July 1, 1994
(59 FR 34272), is to identify to the maximum extent practicable at the
time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of the listing on
proposed and ongoing activities within the range of a species. Erigeron
decumbens var. decumbens and Lupinus sulphureus ssp. kincaidii are
known to occur on Federal lands under the jurisdiction of the Service,
Corps, BLM, or FS. With issuance of this final rule, these species
[[Page 3889]]
on Federal lands are protected from collection. Erigeron decumbens var.
decumbens is protected from malicious damage or destruction on Federal
land under section 9 of the Act. In appropriate cases, collection of
these species could be allowed through the issuance of a Federal
permit. We are not aware of any otherwise lawful activities being
conducted or proposed on private land that will be affected by this
listing and result in a violation of section 9 for these plants.
With issuance of this final rule, Fender's blue butterfly receives
more extensive protection under the Act than described for Erigeron
decumbens var. decumbens, and Lupinus sulphureus ssp. kincaidii.
Section 9 prohibits the take of any listed wildlife species by any
person subject to the jurisdiction of the United States. We believe
that, based on the best available information, the following actions
would not be violations of section 9:
(1) Possession, delivery, or movement, including interstate
transport involving no commercial activity, dead specimens of Fender's
blue butterfly that were collected prior to the date of publication in
the Federal Register of this final regulation adding this taxon to the
list of endangered species;
(2) Actions that may affect Fender's blue butterfly and are
authorized, funded, or carried out by a Federal agency when the action
is conducted in accordance with incidental take statements included in
biological opinions issued under section 7 of the Act;
(3) Land actions or management carried out under a habitat
conservation plan approved by us pursuant to section 10(a)(1)(B) of the
Act; and
(4) Scientific research carried out under a permit issued by us
pursuant to section 10(a)(1)(A) of the Act.
Potential activities involving Fender's blue butterfly that would
likely be considered a violation of section 9 include, but are not
limited to, the following:
(1) Take of Fender's blue butterfly without a permit pursuant to
section 10(a)(1)A) or an incidental take permit pursuant to section
10(a)(1)(B) of the Act (this includes harassing, harming, pursuing,
hunting, shooting, wounding, killing, trapping, capturing, or
collecting, or attempting any of these actions);
(2) Possessing, selling, delivering, carrying, transporting, or
shipping illegally taken specimens of Fender's blue butterfly;
(3) Release of chemical or biological control agents that attack,
damage, or kill any stage of this taxon, if not approved through
section 7 consultation;
(4) In areas where Fender's blue butterfly occurs, the removal or
destruction of the food plants being utilized by Fender's blue
butterfly, defined as Lupinus sulphureus ssp. kincaidii, Erigeron
decumbens var. decumbens, Lupinus. albicaulis, and Lupinus. laxiflorus;
and
(5) Destruction or alteration of Fender's blue butterfly habitat by
grading, leveling, plowing, mowing, burning, herbicide or pesticide
spraying, intensively grazing, or otherwise disturbing grasslands that
result in the death or injury of adult Fender's blue butterflies and/or
their larvae or eggs, through significant impairment of the species'
essential breeding, foraging, sheltering, or other essential life
functions.
You may direct questions regarding whether specific activities risk
a violation of section 9 to the State Supervisor of our Oregon State
Office (see ADDRESSES section). Requests for copies of the regulations
concerning listed plant and animal species and general inquiries
regarding prohibitions and permits may be addressed to the U.S. Fish
and Wildlife Service, Endangered Species Permits, 911 N.E. 11th Avenue,
Portland, Oregon 97232-4181 (telephone 503-231-2063; FAX 503-231-6243).
National Environmental Policy Act
We have determined that Environmental Assessments and Environmental
Impact Statements, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with regulations adopted pursuant to section 4(a) of the Endangered
Species Act of 1973, as amended. A notice outlining our reasons for
this determination was published in the Federal Register on October 25,
1983 (48 FR 49244).
Paperwork Reduction Act
This rule does not contain any 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
clearance number 1018-0094. An agency may not conduct or sponsor, and a
person is not required to respond to, collection of information, unless
it displays a currently valid control number. For additional
information concerning permit and associated requirements for
endangered plant species, see 50 CFR 17.62 and 17.63.
Executive Order 12866
This rule has not been reviewed by the Office of Management and
Budget under Executive Order 12866.
References Cited
You may request a complete list of all references cited herein, as
well as others, from the Oregon State Office (see ADDRESSES above).
Author
The primary author of this final rule is Dr. Andrew F. Robinson,
Jr., Fish and Wildlife Biologist (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
For the reasons outlined in the preamble, 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. 17.11(h) by adding the following, in alphabetical
order under INSECTS, to the List of Endangered and Threatened Wildlife:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Insects
[[Page 3890]]
* * * * * * *
Butterfly, Fender's blue......... Icaricia icarioides U.S.A. (OR)........ NA................. E NA NA
fenderi.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. 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
* * * * * * *
Erigeron decumbens var. decumbens Willamette daisy.... U.S.A. (OR)........ Asteraceae......... E NA NA
* * * * * * *
Lupinus sulphureus ssp. kincaidii Kincaid's lupine.... U.S.A. (OR, WA).... Fabaceae........... T NA NA
Lupinus oreganus var. kincaidii =
synonym.
Lupinus sulphureus var. kincaidii
= synonym.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: January 5, 2000.
Rowan W. Gould,
Acting Director, Fish and Wildlife Service.
[FR Doc. 00-1561 Filed 1-24-00; 8:45 am]
BILLING CODE 4310-55-P
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