Federal Register / Vol. 74, No. 187 / Tuesday, September 29, 2009 / Proposed Rules 49835 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in http:// 

www.regulations.gov or in hard copy 

during normal business hours at the Air 

Protection Division, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

FOR FURTHER INFORMATION CONTACT: 

Jacqueline Lewis, (215) 814–2037, or by 

e-mail at lewis.jacqueline@epa.gov. 

Dated: September 18, 2009. 

William C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. E9–23502 Filed 9–28–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS-R6-ES-2009-0037] 

[92210-1117-0000-B4] 

Endangered and Threatened Wildlife 

and Plants; 12–month Finding on a 

Petition To Revise Critical Habitat for 

Eriogonum pelinophilum (Clay-Loving 

Wild Buckwheat) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of 12–month petition 

finding. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce our 

12–month finding on a petition to revise 

critical habitat for Eriogonum 

pelinophilum (clay-loving wild 

buckwheat) under the Endangered 

Species Act of 1973, as amended (Act). 

After a thorough review of all available 

scientific and commercial information, 

we find that revisions to critical habitat 

for E. pelinophilum are warranted but 

precluded by other priorities. Given this 

finding, we intend to initiate 

rulemaking when we complete the 

higher priorities and we have the 

necessary resources to do so. 

DATES: The finding announced in this 

document was made on September 29, 

2009. 

ADDRESSES: This finding is available on 

the Internet at http:// 

www.regulations.gov. Supporting 

documentation we used to prepare this 

finding is available for public 

inspection, by appointment during 

normal business hours at the U.S. Fish 

and Wildlife Service, Western Colorado 

Ecological Services Office, 764 Horizon 

Drive, Building B, Grand Junction, CO 

81506-3946, by telephone at 970-243- 

2778; or by facsimile at 970-245-6933. 

FOR FURTHER INFORMATION CONTACT: 

Patty Gelatt, Acting Western Colorado 

Supervisor, Fish and Wildlife Service, 

Western Colorado Ecological Services 

Office, 764 Horizon Drive, Building B, 

Grand Junction, CO 81506-3946, by 

telephone at 970-243-2778; or by 

facsimile at 970-245-6933. Persons who 

use a telecommunications device for the 

deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 800- 

877-8339. Please include ‘‘Eriogonum 

pelinophilum scientific information’’ in 

the subject line for faxes and emails. 

SUPPLEMENTARY INFORMATION: Section 

4(b)(3)(D)(ii) of the Act (16 U.S.C. 1531 

et seq.) requires that, for any petition 

containing substantial scientific and 

commercial information that indicates 

revisions to critical habitat may be 

warranted, we make a finding within 12 

months of the date of receipt of the 

petition and publish a notice in the 

Federal Register indicating how we 

intend to proceed with the requested 

revision. 

Background 

Previous Federal Actions 

We proposed to list Eriogonum 

pelinophilum as an endangered species 

in 1983, and we proposed critical 

habitat at the same time (48 FR 28504; 

June 22, 1983). We published the final 

rule designating the species as 

endangered in 1984, along with a final 

critical habitat designation (49 FR 

28562; July 13, 1984). Critical habitat, as 

designated in 1984, encompassed 119.8 

acres (ac) (48.5 hectares (ha)), which 

was then the entire known range of the 

species (49 FR 28562; July 13, 1984). 

On July 24, 2006, we received a 

petition dated July 17, 2006, from the 

Center for Native Ecosystems, the 

Colorado Native Plant Society, and the 

Uncompahgre Valley Association 

(collectively referred to here as the 

petitioners) requesting that we amend 

the critical habitat designation for 

Eriogonum pelinophilum (Center for 

Native Ecosystems et al. 2006, p. 1). The 

petition clearly identified itself as a 

petition and included the requisite 

identification information that 50 CFR 

424.14(a) requires. The petition 

contained a species and habitat 

description for E. pelinophilum, a 

description of previous Federal actions, 

a section addressing statutory 

requirements for E. pelinophilum, a 

description of the various populations 

and their status, a section addressing 

threats to E. pelinophilum, and 

recommendations regarding critical 

habitat for the species. Potential threats 

discussed in the petition include 

destruction and modification of habitat, 

herbivory, and inadequate regulatory 

mechanisms. 

On September 29, 2006, we 

acknowledged the receipt of the petition 

but stated that given staff and budget 

limitations we could not work on the 

administrative finding at that time 

(Service 2006, in litt.). On November 13, 

2006, we received a letter dated 

November 9, 2006, from the petitioners 

notifying us of their 60–day intent to 

sue for our failure to make a 90–day 

finding for Eriogonum pelinophilum 

(Center for Native Ecosystems 2006, in 

litt.). On March 3, 2008, the petitioners 

filed suit with the United States District 

Court for the District of Colorado for our 

failure to make a 90–day finding for the 

species (Center for Native Ecosystems 

2008). On September 25, 2008, a 

settlement agreement was reached 

whereby the Service agreed to submit a 

90–day finding to the Federal Register 

by June 15, 2009, and, if the petition 

was considered substantial, submit a 

12–month finding to the Federal 

Register by September 21, 2009 (U.S. 

Department of Justice 2008). This 12– 

month finding evaluates the status of 

existing critical habitat as stipulated in 

the settlement. 

We published our 90–day finding 

regarding the petition to revise critical 

habitat for Eriogonum pelinophilum on 

June 22, 2009 (74 FR 29456). We 

determined the petition presented 

substantial information indicating that 

revising critical habitat for E. 

pelinophilum under the Act may be 

warranted, thus initiating this 12–month 

finding (74 FR 29456; June 22, 2009). 

We have fully considered all 

information received in response to 

information requested in our 90–day 

finding. 

This 12–month finding discusses only 

those topics directly relevant to the 

revisions of existing critical habitat for 

Eriogonum pelinophilum. We also are in 

the process of preparing a 5–year review 

for E. pelinophilum where we are 

conducting a more thorough review of 

the species’ status (73 FR 58261; 

October 6, 2008). 

Species Information 

Eriogonum pelinophilum was first 

collected near Hotchkiss, Colorado, in 

Delta County in 1958 (Reveal 2006, p. 

1). The species was first recognized as 

its own taxon in 1969, and officially 

described in 1973 (Reveal 1969, pp. 75- 

76; 1973, pp. 120-122). No other 

locations were identified until 1984 

(Colorado Natural Areas Program 

(CNAP) 1986, p. 1). 


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Eriogonum pelinophilum is a low 

growing, rounded, densely branched 

subshrub in the buckwheat family 

(Polygonaceae). It has dark green 

inrolled leaves that appear needlelike, 

and clusters of white to cream colored 

flowers with greenish-red to brownishred bases and veins at the end of the 

branches. 

The life history of Eriogonum 

pelinophilum has been examined in two 

short-term demography studies that 

track a plant population’s change in size 

and structure through time. The first 

study was conducted on Bureau of Land 

Management (BLM) lands at the 

Fairview Research Natural Area in 1987 

and 1988 (CNAP 1986; 1987). The 

second study was conducted at the 

Wacker Ranch where life history 

information was gathered in 1990, 1992, 

1993, and 1994 (Carpenter and Schulz 

1994), and again in 2008 (Lyon 2008). 

Neither of these studies occurred over 

sufficient time periods nor were they 

conducted frequently enough to 

calculate critical life history stages for E. 

pelinophilum’s success. In addition, 

neither study has enough demographic 

detail to assist in the development of a 

population viability model. However, 

both studies do add to our 

understanding of the species’ longevity, 

habitat, and site differences, as 

described in the following two 

paragraphs. 

The CNAP life history study for 

Eriogonum pelinophilum established 

four permanent monitoring plots, two 

plots at Fairview North and two plots 4 

miles (mi) (6 kilometers (km)) south at 

Fairview South, and tagged 220 plants 

(CNAP 1987, p. 1). Significant 

differences in aerial cover, flowering 

rate, and vigor of E. pelinophilum 

between plots (CNAP 1987, p. 3) suggest 

site characteristics may influence plant 

characteristics such as abundance and 

size. Artemisia nova (black sagebrush) 

was the dominant species by basal area 

in most plots, but E. pelinophilum had 

the greatest density and frequency 

(CNAP 1987, p. 8). E. pelinophilum 

occurred in the highest densities away 

from other shrubs (CNAP 1987, p. 8). 

Mortality from 1990 to 1994 averaged 

6.0 percent at six permanent Eriogonum 

pelinophilum transects at the Wacker 

Ranch site but varied from 1.2 to 26.1 

percent and was spread across age 

classes (Carpenter and Schultz 1994, p. 

3). Observed growth rates and the 

number of seedlings observed varied 

considerably by transect (Carpenter and 

Schultz 1994, p. 3). This information 

supports the conclusion that E. 

pelinophilum is very long-lived and that 

environmental conditions vary 

considerably over relatively short 

distances (Carpenter and Schultz 1994, 

pp. 3-4). When five of the six transects 

were revisited in 2008, 67 percent 

remained alive after 18 years, further 

supporting the idea that the plant is 

long-lived (Lyon 2008, p. 2). In addition 

to the 181 tagged plants, at least 321 

new plants were located along the 5 

relocated transects (Lyon 2008, p. 2). 

Results were not statistically adequate 

to detect a change in species abundance 

(Lyon 2008, p. 3), but do suggest that the 

species may be stable or increasing at 

the Wacker Ranch site. 

Eriogonum pelinophilum requires a 

pollinator, and for much of the 

flowering season is the most abundant 

species in bloom in its habitat (Bowlin 

et al. 1992, p. 300). Flowering typically 

occurs from late May to early September 

with individual flowers lasting fewer 

than 3 days (Bowlin et al. 1992, p. 298). 

Over 50 species of insects visit E. 

pelinophilum flowers (Bowlin et al. 

1992, pp. 299-300). Roughly half of 

these 50 species are native bees and 18 

species are native ants (Bowlin et al. 

1992, pp. 299-300). Seed set is similar 

between plants that were pollinated by 

ants versus flying pollinators, suggesting 

the importance of ants to pollination of 

the species (Bowlin et al. 1992, p. 299). 

Harvester ants remove some fruits 

(Bowlin et al. 1992, p. 299); however, no 

information is available for the species 

on seed dispersal mechanisms. 

Eriogonum pelinophilum plants have 

been found to be smaller at disturbed 

sites but the number, richness, diversity, 

or equitability of pollinators was not 

significantly different between 

disturbed and undisturbed sites 

(Tepedino 2009, p. 38). Of all 

Eriogonum species studied to date, none 

has as many pollinators as E. 

pelinophilum (Tepedino 2009, p. 39). 

These pollinators cover a wide array of 

taxonomic and functional types of 

insects that visit the flowers for nectar 

and pollen (Tepedino 2009, pp. 38-39). 

No single pollinator or group of 

pollinators appears particularly 

important for E. pelinophilum 

pollination (Tepedino 2009, pp. 38-39, 

Appendix A). Therefore, preservation of 

specific pollinators is not a significant 

concern in conservation of the species 

(Tepedino 2009, p. 38). Conservation of 

E. pelinophilum should focus primarily 

on the conservation of undisturbed 

habitat and associated plant species in 

as many separate areas as possible to 

manage for the wide array of pollinators 

(Tepedino 2009, p. 40). 

Eriogonum pelinophilum is 

considered a close relative or 

synonymous with E. clavellatum and a 

close relative of E. contortum (Reveal 

2006, p. 3). All three species are 

currently recognized as distinct (Reveal 

2005b, p. 1; J. Kartesz, Biota of North 

America Project 2009, in litt., p. 1). The 

most recent assessment indicates that 

preliminary genetic analyses show that 

E. pelinophilum is allied to, but distinct 

from E. clavellatum, and both are 

distinct from E. contortum (Reveal 2006, 

p. 3). Morphological and distributional 

differences also occur between E. 

pelinophilum, E. contortum, and E. 

clavellatum. E. pelinophilum has white 

flowers and occurs in Delta and 

Montrose Counties, Colorado, whereas 

E. contortum has yellow flowers and 

occurs farther north in Mesa and 

Garfield Counties, Colorado, and Grand 

County, Utah (Spackman et al. 1997, E. 

pelinophilum page). E. pelinophilum is 

shorter, measuring 2 to 4 inches (in.) 

(0.5 to 1 decimeters (dm)), has smaller 

involucres (bracts below the flowers - 

0.12 to 0.14 in. [3 to 3.5 millimeters 

(mm)] long), with petals all the same 

length. E. clavellatum is taller 

measuring 4 to 8 in. (1 to 2 dm), has 

larger involucres (0.16 to 0.18 in. [4 to 

4.5 mm] long), with two different sized 

petals, and is only known from 

Montezuma County, Colorado and 

adjacent San Juan Counties in Utah and 

New Mexico (Spackman et al. 1997, E. 

pelinophilum page; Reveal 2005c, p. 1). 

Habitat Information 

Eriogonum pelinophilum is endemic 

to the rolling clay (adobe) hills and flats 

immediately adjacent to the 

communities of Delta and Montrose, 

Colorado. The plants extend from near 

Lazear, east of Delta on the northern end 

of the species’ range, to the southeastern 

edge of Montrose in Delta and Montrose 

Counties, Colorado, and occur from 

5,180 to 6,350 feet (1,579 to 1,965 

meters) in elevation (Colorado Natural 

Heritage Program (CNHP) 2006, p. 3; 

Nature Serve 2008, pp. 4-5; CNHP 2009, 

spatial data; Service 2009a, Table 1). E. 

pelinophilum is known from an area 

measuring roughly 11.5 mi (18.5 km) 

from east to west and 28.5 mi (45.6 km) 

from north to south (CNHP 2009, spatial 

data). The Delta/Montrose area is dry, 

receiving an average of 8 to 9 in. (20 to 

23 centimeters (cm)) of precipitation a 

year (Western Regional Climate Center 

2009a, p. 1; 2009b, p. 1). Winters are 

cold, with January being the coldest 

month, averaging 12 to 39 degrees 

Fahrenheit (-11 to 4 degrees Celsius). 

Summers are hot, with July being the 

hottest month, averaging 55 to 93 

degrees Fahrenheit (13 to 34 degrees 

Celsius) (Western Regional Climate 

Center 2009a, p. 1; 2009b, p. 1). 

The soils where Eriogonum 

pelinophilum are found are whitish, 

alkaline (with a pH over 7), clay soils of 


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the Mancos shale formation, a 

Cretaceous marine sediment formation. 

Mancos shale outcrops are relatively 

barren of vegetation in comparison to 

surrounding areas (Potter et al. 1985, p. 

137). Several components of the clay 

soils of the Mancos shale limit plant 

growth: soils are fine-textured and lose 

moisture more readily; clay soils are 

compactable which limits gas exchange 

and thus root growth; and clay soils 

hold more water which is unavailable 

for plant use because water infiltration 

is slower than other soil types, and the 

extreme swelling and shrinking of the 

soils limits water availability and 

oxygen exchange for plant roots (Potter 

et al. 1985, p. 139). In addition, the soils 

are calcareous (containing calcium 

carbonate). 

The U. S. Geological Survey is 

researching the Mancos shale soils 

occupied by Eriogonum pelinophilum at 

the Gunnison Gorge National 

Conservation Area (GGNCA). 

Preliminary results suggest that E. 

pelinophilum is associated with silty 

clay and silty clay loam soils that can 

be classified as normal or saline-sodic in 

relation to pH, electrical conductivity, 

and sodium adsorption ratio (SAR) of 

saturated soil paste extracts (Grauch 

2009, in litt., p. 1). The principal 

difference between occupied and 

unoccupied soils is that the occupied 

soils have fairly constant SAR values 

with depth while unoccupied soils have 

more variable SAR values. Electrical 

conductivity values of the saturated soil 

paste extracts have a similar pattern of 

variation with depth (R. Grauch, in litt. 

2009, p. 1). A subsequent study 

comparing the soil samples collected in 

the study above to soil samples across 

the Mancos shale terrain of the GGNCA 

is underway and expected to be 

available within the next 3 years. 

Soils appear to play a large role in the 

distribution of Eriogonum 

pelinophilum. Therefore, we conducted 

a geospatial analysis using Natural 

Resources Conservation Service (NRCS) 

soil layers (Paonia and Ridgeway soil 

surveys - NRCS 2006a, metadata; 2008, 

metadata) to better understand the 

distribution of E. pelinophilum. The 

analysis overlaid soil types with the 

distribution of E. pelinophilum in an 

effort to determine which soil types 

were most common where the plants 

occur. For this analysis, we buffered all 

known locations by 33 feet (10 meters). 

We employed this buffer so that E. 

pelinophilum sites represented by a 

point would more accurately represent 

the plant habitat where those points are 

located (Service 2009b, p. 1). For this 

reason, acreage figures differ 

significantly from those listed in the 

‘‘Population Status’’ section below. 

The Paonia and Ridgeway soil surveys 

differ in their naming and definitions of 

the various soil units, making the data 

analysis inconsistent between the two 

surveys. Data was not available for 9 

percent (96 ac (39 ha)) of habitat 

occupied by E. pelinophilum. Given 

these shortcomings, we found the 

following five soils were most common 

within the 1,129 ac (457 ha) of occupied 

habitat of E. pelinophilum: 1) typic 

torriorthents (both 10- to 25-percent 

slopes, and –Badland complex with 25- 

to 75-percent slopes) comprised roughly 

35 percent (390 ac (158 ha)); 2) ellaybeepersayo silty clay loams (5- to 12- 

percent slopes) comprised roughly 26 

percent (294 ac (119 ha)); 3) killpack 

silty clay loam (3- to 12-percent slopes) 

comprised roughly 7 percent (84 ac (34 

ha)); 4) chipeta silty clay (3- to 30- 

percent slopes) comprised 7 percent (77 

ac (31 ha)); and 5) Montrose-Delta 

complex (0- to 2-percent slopes) 

comprised 6 percent (64 ac (26 ha)). Soil 

types are described as erosion remnants 

weathered from calcareous shale and are 

highly erodible by water (Soil 

Conservation Service 1981, pp. 24 and 

39; NRCS 2006b, map unit 

descriptions). Several other soil types 

occurred within occupied habitat, but 

none comprised over 3 percent or 30 ac 

(12 ha). 

Eriogonum pelinophilum plants are 

generally found within swales or 

drainages where there is more moisture 

than surrounding areas. These swales 

are generally located in low-lying areas 

with rolling topography. Steeper, more 

barren slopes within the Mancos shale 

habitats, but with more toxic soils for 

plant life, exist upslope of where the 

plants occur, generally within 1 mi (1.6 

km). E. pelinophilum plants at lower 

elevation sites near Delta were 

associated with small areas where snow 

lingers longer than surrounding areas 

because of their north- and east-facing 

aspects (Ewing and Glenne 2009, p. 2). 

Plant communities associated with 

Eriogonum pelinophilum are 

characterized by low species diversity, 

low productivity, and minimal canopy 

cover (NatureServe 2008, p. 4). The 

associated vegetation is sparse, with E. 

pelinophilum generally one of the 

dominant species (CNAP 1987, Table 2). 

In lower elevations near Delta, the 

dominant plant species is Atriplex 

corrugata (mat saltbrush) but at higher 

elevations near Montrose the dominant 

plant species is Artemesia nova (black 

sagebrush), although A. corrugata is still 

abundant (Southwest Regional Gap 

Analysis Project 2004, spatial data). 

Other associated species include 

Atriplex confertifolia (shadscale), 

Atriplex gardneri (Gardner’s saltbush), 

Picrothamnus desertorum (formerly 

Artemisia spinescens) (bud sagebrush), 

Xylorhiza venusta (charming 

woodyaster), and another local endemic 

Penstemon retrorsus (Adobe Hills 

beardtongue) (CNAP 1987, Table 2; 

Coles 2006, p. 1; NatureServe 2008, p. 

4). 

Population Status 

Based on information provided by the 

CNHP in January 2009, 20 Eriogonum 

pelinophilum Element Occurrences 

(EOs) are currently known (CNHP 2009, 

pp. 1-81; Service 2009a, Table 1). The 

EOs are utilized by Natural Heritage 

Programs to track rare species and are 

defined as an area where a species is or 

was present. For E. pelinophilum, EOs 

are comprised of one to many polygons 

(sites) based on a standardized 

maximum separation distance, in this 

case 1.2 mi (2 km) across suitable 

habitat and 0.6 mi (1 km) across 

unsuitable habitat (CNHP 2007, p. 1). 

However, upon closer examination, we 

found that several EOs, as designated by 

CNHP, were within 0.6 mi (1 km) of one 

another. For the purpose of this 

discussion, we have left the EOs as 

designated by CNHP. Of these 20 EOs, 

7 have not been relocated in over 20 

years and are considered historical. A 

survey was conducted at an additional 

EO where no plants were relocated 

(CNHP 2009, pp. 1-81; Service 2009a, 

Table 1). Table 1 is provided below to 

portray the EOs and their land 

management or ownership status. Figure 

1 shows the distribution of E. 

pelinophilum habitat in Colorado with 

EO Numbers and percent occupancy. 


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TABLE 1. THE COLORADO NATURAL HERITAGE PROGRAM Eriogonum pelinophilum EOS. 

The EO ranks A, B, C, and D represent the quality of the EO (from best to worst quality, respectively), H indicates an EO has not been visited in 

over 20 years, and F indicates an EO that could not be relocated upon subsequent visit. 

EO Number EO Rank1 Acreage2 Population Name Land Management 

with Rough Estimates of Ownership Percentage 

001 Lawhead Gulch private 

003 B 67 North Selig Canal 33% BLM- 66% private 

004 B 17 Olathe South private 

006 B 15 North Mesa private 

007 H, C Peach Valley private 

011 C 110 North Fairview 50% BLM - 50% private 

012 B 25 Sunshine Road 5% BLM – 95% private 

013 H, C (4) Cedar Creek private 

014 A 7 Candy Lane/Peach Valley BLM 

015 F (70) Selig Canal 3 private 

016 C 13 Dry Cedar Creek BLM 

017 H, C (20) Oak Grove Road private 

018 A 212 Wacker Ranch/Fairview South 70% BLM – 20% Colorado State (CNAP) – 10% private 

019 H (2) Star Nelson Airport private 

021 H, C (26) Montrose East private 

022 H, C (19) Montrose East private 

023 H Hotchkiss unknown 

024 D 8 Montrose Northeast private 

025 B 18 Selig Canal 90% BLM – 10% private 

041 B 6 Garret Ditch 66% BLM – 33% private 

none none 3 Peach Valley North 33% BLM – 66% private 

none none 2 Loutsenhizer Canal BLM 

1 EOs with both historical (H) rank and C (fair) quality ranks were ranked as C prior to becoming H. 2 Acreages are approximate, are based on a geospatial layer when available, and on surveyor estimates when a geospatial estimate is not 

available (CNHP 2009, pp. 1-81). Methods for estimating acreage vary between surveys. Acres listed in parentheses are not included in the total 

based on their historical (H) or failed to find (F) ranks. 

BILLING CODE 4310–55–S Distribution of Eriogonum 

pelinophilum habitat in Colorado with 

Element Occurrence (EO) Numbers and 

percent occupancy. 


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BILLING CODE 4310–55–C 

The most recent rangewide E. 

pelinophilum population estimate for 

all 14 current sites is roughly 277,000 

individuals across 582 occupied ac (233 

ha). Roughly 46 percent of the acres are 

in private ownership (14 percent of the 

total acres have conservation 

easements), and 54 percent of the acres 

are managed by either the BLM or the 

CNAP (CNHP 2009, pp. 1-81; Service 

2009a, Table 1). The difference between 

rangewide population estimates from 

the 2006 petition and those in 2009 are 

largely attributable to surveys that 

occurred in 2007 near Fairview South 

(EO 018), where increased survey efforts 

greatly expanded the known locations of 

E. pelinophilum as well as the number 

of individuals (an increase from roughly 

30,000 to 250,000 individuals) (CNHP 

2009, EO 18; Ferguson 2007, pp. 2 and 

4). Survey intensity has not been 

consistent in the different EOs. 

We are aware of two additional 

populations of Eriogonum pelinophilum 

that are not incorporated into the CNHP 

database and, based on appropriate 

separation distances, would comprise 

two new EOs (Table 1). Although not 

yet numbered or named by CNHP, we 

now refer to these sites as Peach Valley 

North and Loutsenhizer Canal (Table 1). 

Peach Valley North has fewer than 100 

plants and the Loutsenhizer Canal site 

has an estimated 500 plants (BIO-Logic 

Environmental 2004, Site 219 p. 7 and 

spatial data; BIO-Logic Inc. 2008, Figure 

2 and spatial data; Boyle 2009, in litt., 

p. 1). We have a short report in our files 

(Reveal 2006, p. 2) with a map 

portraying seven extirpated E. 

pelinophilum locations. These locations 

are not included in the CNAP’s 

database. We do not have any 

information on how these extirpations 


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were determined, their exact locations, 

if they were portions of other EOs, or 

how many plants were lost; therefore, 

they are not included in our assessment 

of populations (Table 1). 

Of the 14 occupied Eriogonum 

pelinophilum sites, 4 occur wholly on 

private land; 6 occur on a combination 

of BLM and private land; 1 occurs on a 

combination of BLM, Colorado State 

(CNAP), and private land; and 3 occur 

wholly on BLM land (Table 1). Sites on 

Federal lands are afforded the 

protections of section 7 of the Act. In 

addition, four EOs have special land 

designations that provide some 

additional level of protection: (1) The 

majority of Lawhead Gulch is protected 

through a conservation easement held 

by the Black Canyon Land Trust, as well 

as being within the existing critical 

habitat designation; (2) a portion of the 

North Selig Canal is protected through 

a conservation easement held by the 

Black Canyon Land Trust; (3) roughly 

half of North Fairview is protected as a 

BLM Area of Critical Environmental 

Concern (ACEC), and as a Colorado 

Natural Area, which was fenced in 

2008; and (4) Wacker Ranch/Fairview 

South is partially protected through a 

BLM designated ACEC, the CNAP (both 

at the Fairview South ACEC and Wacker 

Ranch), and The Nature Conservancy at 

Wacker Ranch. 

Each of these special designations 

protects Eriogonum pelinophilum 

differently. Easements held by the Black 

Canyon Land Trust provide permanent 

protection for Eriogonum pelinophilum, 

are not actively managed, and have not 

yet been surveyed for E. pelinophilum, 

although the presence of the plant has 

been confirmed on all easements (B. 

Hawke, Executive Director, Black 

Canyon Land Trust, in litt. 2008, pp. 1- 

2). The BLM’s Fairview ACECs, both 

north and south, were designated to 

manage and protect E. pelinophilum 

(Ferguson 2006, in litt. pp. 1-6). The 

Fairview North ACEC has been fenced 

and livestock use has been halted, 

whereas the Fairview South ACEC is not 

fenced and receives livestock use. Both 

Fairview ACECs also are designated as 

Colorado Natural Areas. The CNAP has 

provided qualitative monitoring, 

quantitative monitoring, and 

management recommendations at both 

ACECs (Kurzel 2008, in litt. pp. 1-4). 

Wacker Ranch was acquired through a 

U.S. Fish and Wildlife Recovery Land 

Acquisition Grant in 2007 to protect E. 

pelinophilum (McGillivary 2007, in litt. 

p. 1). The property is owned by the 

Colorado Division of Parks and Outdoor 

Recreation (CNAP), is a Colorado 

Natural Area, and is managed by The 

Nature Conservancy (Colorado Division 

of Parks and Outdoor Recreation and 

The Nature Conservancy 2007, pp. 1-5). 

A formal management plan has been 

completed and nonnative weed control, 

qualitative and quantitative monitoring, 

as well as public outreach are ongoing 

for this property (Kurzel 2008, in litt. 

pp. 1-4). 

Critical Habitat 

Current Critical Habitat Designation 

At the time we designated critical 

habitat, the designation represented the 

entire known range of the species. The 

rule designating critical habitat 

included as the primary constituent 

elements those factors associated with 

the whitish alkaline clay soils within 

the sparsely vegetated badlands of 

Mancos shale. The existing critical 

habitat for E. pelinophilum, as 

designated in 1984, encompasses 119.8 

ac (48.5 ha) and one population 

(Lawhead Gulch, EO 001,50 CFR 

17.96(a)). Within that designation, 

approximately 65 ac (26 ha) of habitat 

remains occupied containing 

approximately 2,000 individual plants. 

The current critical habitat designation 

for E. pelinophilum includes 

approximately 65 of 582 ac (26 of 233 

ha) of currently occupied habitat (11 

percent), and 2,000 of 276,000 

individuals (0.7 percent) (Service 2009, 

Table 1). E. pelinophilum has special 

protections in portions of 4 of 20 extant 

EOs. 

Background 

Critical habitat is defined in section 

3(5)(A) of the Act as: 

(i) The specific areas within the 

geographical area occupied by the 

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) which may require special 

management considerations or 

protection; and 

(ii) specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Conservation, as defined under 

section 3 of the Act, means the use of 

all methods and procedures that are 

necessary to bring any endangered or 

threatened species to the point at which 

the measures provided under the Act 

are no longer necessary. Such methods 

and procedures include, but are not 

limited to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, or transplantation. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against Federal agencies 

carrying out, funding, or authorizing the 

destruction or adverse modification of 

critical habitat. Section 7(a)(2) of the Act 

requires consultation on Federal actions 

that may affect critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow the 

government or public to access private 

lands. Such designation does not 

require implementation of restoration, 

recovery, or enhancement measures by 

private landowners. Where a landowner 

requests Federal agency funding or 

authorization for an action that may 

affect a listed species or critical habitat, 

the consultation requirements of section 

7(a)(2) would apply, but even in the 

event of a destruction or adverse 

modification finding, the landowner’s 

obligation is not to restore or recover the 

species, but to implement reasonable 

and prudent alternatives to avoid 

destruction or adverse modification of 

critical habitat. 

For inclusion in a critical habitat 

designation, habitat within the 

geographical area occupied by the 

species must contain the physical and 

biological features essential to the 

conservation of the species, and be 

included only if those features may 

require special management 

considerations or protection. Critical 

habitat designations identify, to the 

extent known using the best scientific 

and commercial data available, habitat 

areas containing the essential physical 

and biological features essential to the 

conservation of the species. The 

essential features consist of the primary 

constituent elements (PCEs) in the 

appropriate quantity and spatial 

arrangement that provide for requisite 

life cycle needs of the species. Under 

the Act and regulations at 50 CFR 

424.12, we can designate critical habitat 

in areas outside the geographical area 

occupied by the species at the time it is 

listed only when we determine that 

those areas are essential for the 

conservation of the species and that 

designation limited to those areas 

occupied at the time of listing would be 

inadequate to ensure the conservation of 

the species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific and commercial data 

available. Further, our Policy on 

Information Standards Under the Act 


CPrice-Sewell on DSKGBLS3C1PROD with PROPOSALS
Federal Register / Vol. 74, No. 187 / Tuesday, September 29, 2009 / Proposed Rules 49841 

(published in the Federal Register on 

July 1, 1994 (59 FR 34271)), the 

Information Quality Act (section 515 of 

the Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106-554; H.R. 5658)), and our 

associated Information Quality 

Guidelines, provide criteria, establish 

procedures, and provide guidance to 

ensure that our decisions are based on 

the best scientific data available. They 

require our biologists, to the extent 

consistent with the Act and with the use 

of the best scientific data available, to 

use primary and original sources of 

information as the basis for 

recommendations to designate critical 

habitat. 

12-Month Finding 

Section 4(b)(3)(D)(ii) of the Act 

requires that if we find that a revision 

to critical habitate should be made, then 

we are to indicate how we intend to 

proceed with such revision and 

promptly publish a notice of our 

intention. We have reviewed the best 

available scientific and commercial 

information available, and we find that 

revisions to critical habitat for E. 

pelinophilum under the Act should be 

made. However, we have determined 

that the development of a revised 

critical habitat designation for the 

species is currently precluded by higher 

priority listing and critical habitat 

determinations. The resources available 

for listing actions, including critical 

habitat designations and revisions, are 

determined through the annual 

Congressional appropriations process. 

We cannot spend more than is 

appropriated for the Listing Program 

without violating the Anti-Deficiency 

Act (see 31 U.S.C. 1341(a)(1)(A)). 

Recognizing that designation of critical 

habitat for species already listed would 

consume most of the overall Listing 

Program appropriation, Congress also 

put a critical habitat subcap in place in 

FY 2002 and has retained it each 

subsequent year. In FY 2002 and each 

year until FY 2006, the Service has had 

to use virtually the entire critical habitat 

subcap to address court-mandated 

designations of critical habitat, and 

consequently none of the critical habitat 

subcap funds have been available for 

other listing activities. In FY 2007, we 

were able to use some of the critical 

habitat subcap funds to fund proposed 

listing determinations for high-priority 

candidate species. While we were 

unable to use any of the critical habitat 

subcap funds to fund proposed listing 

determinations in FY 2008, we did use 

a portion of this money to fund the 

critical habitat portion of some 

proposed listing determinations. In 

those cases, this allowed combining the 

proposed listing determination and 

proposed critical habitat designation 

into one rule, thereby increasing 

efficiency. In FY 2009, we have been 

able to continue this practise. However, 

our current projection for FY 2010 is 

that all of the funding anticipated for 

the critical habitat portion of the listing 

allocation will be used to address courtordered critical habitat designations. As 

such, we do not anticipate having 

funding available to work on non-courtordered actions in FY 2010. 

Thus, through the critical habitat 

subcap, and the amount of funds needed 

to address court-mandated critical 

habitat designations, Congress and the 

courts have in effect determined the 

amount of money available for critical 

habitat revisions. Therefore, the funds 

in the critical habitat subcap, other than 

those needed to address court-mandated 

critical habitat for already listed species, 

set the limits on revisions to critical 

habitat. 

We have endeavored to make our 

critical habitat designation and revision 

actions as efficient and timely as 

possible, given the requirements of the 

relevant law and regulations, and 

constraints relating to workload and 

personnel. We are continually 

considering ways to streamline 

processes or achieve economies of scale, 

such as by batching related actions 

together. 

While we are not proposing to revise 

critical habitat at this time, we have 

considered whether the physical and 

biological features essential to the 

conservation of the species identified in 

the previous designation are still 

appropriate for this species. The original 

critical habitat designation included 

only the alkaline clay soils as a primary 

constituent element, and therefore the 

feature essential to the conservation of 

the species. Appropriate native 

vegetation and features that allow for 

dispersal were not included. Based on 

the biology of the species, we intend to 

revise the PCEs, and therefore the 

essential features, in order to address 

the following needs of the species: 

appropriate native vegetation, 

appropriate soils, and features that 

allow for dispersal within units. Such 

features may include suitable habitat for 

pollinators, appropriate slopes, 

depressions, rivulets, and sites where 

snow banks linger. We find that 

incorporating these concepts into the 

revised critical habitat designation for 

Eriogonum pelinophilum is important 

for identifying the specific areas 

essential to the conservation of the 

species. We are soliciting any additional 

information or input on these potential 

PCEs and essential features. 

How the Service Intends To Proceed 

We intend to undertake rulemaking to 

revise critical habitat for Eriogonum 

pelinophilum when funding and staff 

resources become available. Based on 

the best available science, including the 

status review, we will take the following 

steps to propose the revision of 

designated critical habitat for 

Eriogonum pelinophilum: (1) Determine 

the geographical area occupied by the 

species at the time of listing; (2) identify 

the physical or biological features 

essential to the conservation of the 

species; (3) delineate areas within the 

geographical area occupied by the 

species that contain these features, and 

which may require special management 

considerations or protections; (4) 

delineate any areas outside of the 

geographical area occupied by the 

species that are essential for the 

conservation of the species; (5) conduct 

appropriate analyses under section 

4(b)(2) of the Act; and (6) invite the 

public to review and provide comments 

on the proposed revision through a 

public comment period. 

We intend that any revisions to 

critical habitat for E. pelinophilum be as 

accurate as possible. Therefore, we will 

continue to accept additional 

information and comments from all 

concerned governmental agencies, the 

scientific community, industry, or any 

other interested party concerning this 

finding. 

Current Designation and Protections 

Until we are able to revise the critical 

habitat designation for Eriogonum 

pelinophilum, areas that support 

populations but are outside the critical 

habitat designation will continue to be 

subject to conservation actions 

implemented under section 7(a)(1) of 

the Act. Federal agency actions are 

subject to the regulatory protections 

afforded by section 7(a)(2), as 

determined on the basis of the best 

available scientific information at the 

time of the action. Approximately a 

third of the areas currently known to be 

occupied by the species are on private 

land outside of the current designation. 

We expect occasional projects on 

private land to involve a Federal nexus, 

in which case protections under section 

7(a)(2) would also apply. Where a 

landowner requests Federal agency 

funding or authorization (i.e., Federal 

nexus) for an action that may affect a 

listed species or critical habitat, the 

consultation requirements of section 

7(a)(2) would apply. 


CPrice-Sewell on DSKGBLS3C1PROD with PROPOSALS
49842 Federal Register / Vol. 74, No. 187 / Tuesday, September 29, 2009 / Proposed Rules 

Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans, or other species conservation 

planning efforts if new information 

available to these planning efforts calls 

for a different outcome. Section 7(a)(2) 

of the Act requires Federal agencies, 

including the Service, to ensure that 

actions they fund, authorize, or carry 

out are not likely to destroy or adversely 

modify critical habitat. If a Federal 

action may affect a listed species or its 

critical habitat, the responsible Federal 

agency (action agency) must enter into 

consultation with us. As a result of this 

consultation, we document compliance 

with the requirements of section 7(a)(2) 

through our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that may affect, and are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 

modify critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. We 

define ‘‘Reasonable and prudent 

alternatives’’ at 50 CFR 402.02 as 

alternative actions identified during 

consultation that: 

•Can be implemented in a manner 

consistent with the intended purpose of 

the action, 

•Can be implemented consistent with 

the scope of the Federal agency’s legal 

authority and jurisdiction, 

• Are economically and 

technologically feasible, and 

•Would, in the Director’s opinion, 

avoid jeopardizing the continued 

existence of the listed species or 

destroying or adversely modifying 

critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, 

Federal agencies may sometimes need to 

request reinitiation of consultation with 

us on actions for which formal 

consultation has been completed, if 

those actions with discretionary 

involvement or control may affect 

subsequently listed species or 

designated critical habitat. 

References Cited 

A complete list of all references cited 

in this document is available, upon 

request, from the Western Colorado 

Ecological Services Office (see FOR

FURTHER INFORMATION CONTACT). 

Author 

The primary authors of this notice are 

the staff members of the Western 

Colorado Ecological Services Office (see 

FOR FURTHER INFORMATION CONTACT). 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: September 16, 2009. 

Thomas L. Strickland 

Assistant Secretary for Fish and Wildlife and 

Parks 

[FR Doc. E9–23155 Filed 9–28– 09; 8:45 am] 

BILLING CODE 4310–55–S 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS-R4-ES-2009-0066] 

[92210-1117-0000-B4] 

Endangered and Threatened Wildlife 

and Plants; 90-Day Finding on a 

Petition to Revise Critical Habitat for 

the Florida Manatee (Trichechus 

manatus latirostris) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of 90–day petition 

finding and initiation of critical habitat 

review. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, announce a 90–day 

finding on a petition to revise the 

critical habitat designation for the 

Florida subspecies (Trichechus manatus 

latirostris) of the endangered West 

Indian manatee (Trichechus manatus) 

under the Endangered Species Act of 

1973, as amended. Based on our review, 

we find that the petition, in conjunction 

with information readily available in 

our files, presents substantial scientific 

or commercial information indicating 

that a revision of the critical habitat 

designation for the Florida manatee may 

be warranted. Therefore, with the 

publication of this notice, we are 

initiating a review of the current critical 

habitat designation for the subspecies to 

determine how we intend to proceed 

with the revision. To ensure a 

comprehensive review, we seek 

information pertaining to the Florida 

manatee’s essential habitat needs from 

any interested party. 

DATES: To allow us adequate time to 

conduct this review, we request that you 

send us information on or before 

October 29, 2009. 

ADDRESSES: You may submit 

information by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Search for docket 

FWS-R4-ES-2009-0066 and then follow 

the instructions for submitting 

comments. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS-R4- 

ES-2009-0066; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will post all information received 

on http://www.regulations.gov. This 

generally means that we will post any 

personal information you provide us 

(see the Information Solicited section 

below for more details). 

FOR FURTHER INFORMATION CONTACT: 

Dave Hankla, Field Supervisor, 

Jacksonville, Florida Ecological Services 

Office, 7915 Baymeadows Way, Suite 

200, Jacksonville, FL 32256, by 

telephone (904-731-3336), or by 

facsimile (904-731-3045). If you use a 

telecommunications device for the deaf 

(TDD), please call the Federal 

Information Relay Service (FIRS) at 800- 

877-8339. 

SUPPLEMENTARY INFORMATION: 

Information Solicited 

When we make a finding that a 

petition presents substantial 

information indicating that a revision of 

a critical habitat designation may be 

warranted, we initiate a review of that 

critical habitat to determine how we 

intend to proceed with the requested 

revision of the designation. To ensure 

that the review is complete and 

incorporates the best available scientific 

and commercial information, we seek 

information regarding the revision of 

critical habitat for the Florida manatee. 


CPrice-Sewell on DSKGBLS3C1PROD with PROPOSALS