[Federal Register Volume 65, Number 202 (Wednesday, October 18, 2000)]
[Rules and Regulations]
[Pages 62302-62310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-26544]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE87


Endangered and Threatened Wildlife and Plants: Threatened Status 
for the Colorado Butterfly Plant (Gaura neomexicana ssp. coloradensis) 
From Southeastern Wyoming, Northcentral Colorado, and Extreme Western 
Nebraska

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), have determined 
threatened status under the Endangered Species Act of 1973, as amended, 
for Gaura neomexicana ssp. coloradensis (Colorado butterfly plant). A 
short-lived, perennial herb, G. n. ssp. coloradensis is endemic to 
moist soils in mesic or wet meadows of floodplain areas in north 
central Colorado, extreme western Nebraska, and southeastern Wyoming. 
This subspecies occurs primarily in habitats created and maintained by 
streams active within their floodplains, with vegetation that is 
relatively open and not overly dense or overgrown. The primary threats 
to G. n. ssp. coloradensis is the indiscriminate spraying of broadleaf 
herbicides and the disturbance of riparian areas that contain native 
grasses due to agricultural conversion, water diversions, 
channelization, and urban development.

EFFECTIVE DATE: November 17, 2000.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the U.S. Fish and 
Wildlife Service, 4000 Airport Parkway, Cheyenne, Wyoming 82001.

FOR FURTHER INFORMATION CONTACT: Mike Long, Field Supervisor, Wyoming 
Field Office (see ADDRESSES section), telephone 307/772/2374; facimile 
307/772-2358.

SUPPLEMENTARY INFORMATION

Background

    Gaura neomexicana ssp. coloradensis was initially described as G. 
coloradensis by Rydberg (1904) based on material collected near Fort 
Collins, Colorado, in 1895. Munz (1938) transferred G. coloradensis to 
G. neomexicana and reduced it to variety coloradensis. This taxon is 
now recognized as G. n. ssp. coloradensis (Raven and Gregory 1972).
    Gaura neomexicana ssp. coloradensis is a perennial herb that lives 
vegetatively for several years before bearing fruit once and then 
dying. It has one or a few reddish, hairy stems that are 50-80 
centimeters (cm) (2-3 feet (ft)) tall. The lower leaves are lance-
shaped with smooth or wavy-toothed margins and average 5-15 cm (2-6 
inches (in.)) long, while those on the stem are smaller and reduced in 
number. Flowers are arranged in a branched, elongate pattern above the 
leaves. Only a few flowers are open at any one time and these are 
located below the rounded buds and above the mature fruits. Individual 
flowers are 5-14 millimeters (\1/4\-\1/2\in.) long with four reddish 
sepals (modified leaves surrounding the flower) and four white petals 
that turn pink or red with age. The hard, nutlike fruits are 4-angled 
and have no stalk. Nonflowering plants consist of a stemless, basal 
rosette of oblong, hairless leaves 3-18 cm (1-7 in.) long (Marriott 
1987; Fertig 1994; Fertig et al. 1994).
    Gaura neomexicana ssp. coloradensis occurs on subirrigated, 
alluvial (stream deposited) soils on level or slightly sloping 
floodplains and drainage bottoms at elevations of 1,524-1,951 meters 
(5,000-6,400 ft). Colonies are often found in low depressions or along 
bends in wide, active, meandering stream channels a short distance 
upslope of the actual channel. The plant requires early-to mid-
succession riparian (river bank) habitat. It commonly occurs in 
communities dominated by Agrostis stolonifera (redtop) and Poa 
pratensis (Kentucky bluegrass) on wetter sites, and Glycyrrhiza 
lepidota (wild licorice), Cirsium flodmanii (Flodman's thistle), 
Grindelia squarrosa (curlytop gumweed), and Equisetum laevigatum 
(smooth scouring rush) on drier sites. Both these habitat types are 
usually intermediate in moisture between wet, streamside communities 
dominated by sedges (Carex spp.), rushes (Juncus spp.), and cattails 
(Typha spp.), and dry, upland shortgrass prairie. Typical G. n. ssp. 
coloradensis habitat is open, without dense or overgrown vegetation. 
Salix exigua (coyote willow) and Cirsium arvense (Canada thistle) may 
become dominant in G. n. ssp. coloradensis habitat that are not 
periodically flooded or otherwise disturbed. The plant occurs on soils 
derived from conglomerates, sandstones, and tuffaceous mudstones and 
siltstones of the Tertiary White River, Arikaree, and Oglalla 
Formations (Love and Christiansen 1985). These soils are common in 
eastern Colorado and Wyoming.
    Gaura neomexicana ssp. coloradensis is an early successional plant 
(although probably not a pioneer) adapted to use stream channel sites 
that are periodically disturbed. Historically, flooding was probably 
the main cause of disturbances in the plant's habitat, although 
wildfire and grazing by native herbivores also may have been important. 
Although flowering and fruiting stems may undergo increased mortality 
because of these events, vegetative rosettes appear to be little 
affected (Mountain West Environmental Services 1985). However, the 
survival rate of the vegetative rosettes appears to be very dependent 
on available soil moisture. In wet years, such as the past few years, a 
large number of rosettes have survived; however, in dry years or during 
extended droughts, fewer rosettes appear to survive to reach the size 
necessary for flowering and fruiting. Because the long-term viability 
of this taxa relies on successful flowering and fruiting, as well as 
the difficulty in identifying small rosettes, only the flowering plants 
are counted to estimate population size and trends. The establishment 
and survival of seedlings appears to be enhanced at sites where tall 
and dense vegetation has been removed by some form of disturbance. In 
the absence of occasional disturbance, the plant's habitat can become 
choked out by dense growth of willows (Salix spp.), grasses (including 
red top (Agrostis stolinifera)), baltic rush (Juncus balticus), and 
exotic plants (such as Canada thistle (Cirsium arvense) and leafy 
spurge (Euphorbia esula)), which prevents new seedlings from becoming 
established and replacing plants that have died (Floyd 1995a; Fertig 
1996).
    Little is known about the historical distribution of Gaura 
neomexicana ssp. coloradensis. Prior to 1984, no extensive 
documentation of the plant's range had been conducted. The plant was 
known from several historical (and presumably extirpated (Fertig 1994)) 
locations in southeastern Wyoming, and at least four historical (and 
presumably extirpated (Fertig 1994)) locations in northern Colorado; 
and from three extant populations in Laramie County,

[[Page 62303]]

Wyoming, and Weld County, Colorado. In 1979, the total known population 
size was estimated in the low hundreds (Dorn 1979). Intensive range-
wide surveys from 1984 to 1986 resulted in the discovery or 
confirmation of more than 20 populations in Wyoming, Colorado, and 
Nebraska, containing approximately 20,000 flowering individuals 
(Marriott 1987). Additional surveys since 1992 have resulted in the 
discovery of additional populations in Wyoming and Colorado (Fertig 
1994; Floyd 1995b).
    All currently known populations are within a small area (6,880 
hectares (ha) or 17,000 acres (ac)) in southeastern Wyoming, western 
Nebraska, and north-central Colorado. Two of the populations occur on 
F.E. Warren Air Force Base in Cheyenne, Wyoming, and five small 
populations on State land (Chambers Preserve, CO; Oliver Reservoir 
State Recreation Area, NE; and state school trust land, WY). One 
population occurs on the Meadow Springs Ranch, northern Colorado (owned 
by City of Fort Collins). The remaining populations occur on private 
lands.
    Extensive surveys were conducted during 1998 to document the status 
of previously known populations at 14 sites in Wyoming and Colorado 
(Fertig 1998b). All 14 sites still supported populations of Gaura 
neomexicana ssp. coloradensis. Repeated survey information led Fertig 
(1998b) to conclude that 10 of these populations were either relatively 
stable or increasing over the long term. Fertig (1998b) estimated the 
entire population of this taxon to contain between 47,000 and 50,000 
reproductive plants. Twelve previously known populations were not 
surveyed in 1998, so their current status is unknown. Three of these 
populations were surveyed from 1989 until 1992 and were found to 
contain only 807 reproductive plants (Fertig 1998b). However, four 
populations in Colorado and five in Wyoming identified in previous 
surveys had not been relocated since 1986 and may be extirpated. Thus, 
of 26 previously and currently known populations, 9 may be extirpated; 
3 are probably small, but have not been surveyed since 1992; 4 are 
still extant, but declining; and 10 are stable or increasing.

Previous Federal Action

    Federal action on these plants began as a result of section 12 of 
the Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et 
seq.), which directed the Secretary of the Smithsonian Institution to 
prepare a report on those plants considered to be endangered, 
threatened, or extinct in the United States. This report (House 
Document No. 94-51) was presented to Congress on January 9, 1975, and 
included Gaura neomexicana spp. coloradensis. We published a notice in 
the July 1, 1975, Federal Register (40 FR 27823) of our acceptance of 
the Smithsonian Institution report as a petition within the context of 
section 4(c)(2) (petition provisions are now found in section 4(b)(3)) 
of the Act, and our intention to review the status of the reported 
plant species.
    On June 16, 1976, we published a proposal in the Federal Register 
(41 FR 24523) to determine approximately 1,700 vascular plant species, 
including Gaura neomexicana ssp. coloradensis, to be endangered species 
under section 4 of the Act. General comments received in relation to 
the 1976 proposal were summarized in an April 26, 1978, Federal 
Register publication (43 FR 17909). The Act Amendments of 1978 required 
that all proposals over 2 years old be withdrawn. A 1-year grace period 
was given to those proposals already more than 2 years old. In the 
December 10, 1979, Federal Register (44 FR 70796), we published a 
notice of withdrawal of the June 16, 1976, proposal, along with four 
other proposals that had expired.
    We published an updated Notice of Review (NOR) for plants on 
December 15, 1980 (45 FR 82480), which included Gaura neomexicana ssp. 
coloradensis as a Category 1 candidate species. Category 1 candidates 
were formerly defined as species for which we had on file substantial 
information on biological vulnerability and threats to support 
preparation of listing proposals, but issuance of a proposed rule was 
precluded by other listing activities of higher priority. This 
subspecies was mistakenly left out of the NOR published November 28, 
1983 (48 FR 53640), but its status was republished in subsequent NORs 
published in the Federal Register on September 27, 1985 (50 FR 39526), 
February 21, 1990 (55 FR 6184), and September 30, 1993 (58 FR 51144).
    On February 28, 1996, we published a NOR in the Federal Register 
(61 FR 7596) that discontinued the designation of category 2 species as 
candidates. That notice included as candidates only those species 
meeting the former definition of category 1. Gaura neomexicana ssp. 
coloradensis was included as a candidate in this notice and has 
retained that status in the subsequent NOR, published in the Federal 
Register on September 19, 1997 (62 FR 49384).
    As part of a settlement agreement in Fund for Animals et al. v. 
Lujan et al. (D.D.C. Civ. No. 92-800), the proposed rule to list this 
subspecies as threatened was published in the Federal Register on March 
24, 1998 (63 FR 14060). The comment period on the proposed rule to list 
Gaura neomexicana ssp. coloradensis was reopened in the Federal 
Register on May 17, 2000 (65 FR 31298), to accommodate the public 
notice requirement of the Act to consider any new scientific 
information.
    On January 18, 1982, we signed a Memorandum of Understanding with 
the Commander of the F.E. Warren Air Force Base to ensure continued 
survival of the two populations of Gaura neomexicana ssp. coloradensis 
that occur on the base. The agreement has been updated several times 
since 1982. In 1990 a Research Natural Area was established to include 
all the known naturally occurring populations on the base. The 1992 
Memorandum of Understanding also included The Nature Conservancy, 
supported demographic studies of the G. n. ssp. coloradensis 
populations on the base, and provided for ongoing protective efforts. 
The most recent Memorandum of Agreement (signed March 31, 1999, and 
effective through December 31, 2003) supports continued protection of 
the plant populations on the base, development of a weed control plan, 
and research on reproduction, genetic variability, and other ecological 
and biological aspects of the plant.
    We have updated this rule to reflect any changes in information 
concerning distribution, status, and threats since the publication of 
the proposed rule and to incorporate information obtained through the 
public comment periods. This additional information did not alter our 
decision to list the subspecies.

Summary of Comments and Recommendations

    In the March 24, 1998, proposed rule (63 FR 14060) and the May 17, 
2000, reopening of the comment period (65 FR 31298), we requested 
interested parties to submit factual reports or information that might 
contribute to the development of a final rule. We sent announcements of 
the proposed rule to appropriate Federal and State agencies, county 
governments, scientific organizations, and other interested parties. We 
also published announcements of the proposed rule in three local 
newspapers (Fort Collins Coloradoan, the Wyoming Tribune Eagle, and the 
Western Nebraska Observer) on May 18 and 19, 2000, inviting public 
comment.

[[Page 62304]]

    We received a total of ten comments (four from private 
organizations, four from agricultural operations, one from State 
Government, and one from a private individual) that are discussed 
below. Of these comments, two were provided as supplements to comments 
already provided during the initial comment period.
    Issue 1: Two commenters suggested we take an ecosystem approach and 
adopt a program that would conserve several species, including Preble's 
meadow jumping mouse (Zapus hudsonius preblei), even if development of 
such a program leads to delays in protection for the plant. The 
commenter also indicated the proposed rule ignores the efforts of the 
Laramie County Commissioners to amend the county use plan and develop a 
Habitat Conservation Plan which would include Gaura neomexicana ssp. 
coloradensis.
    Our Response: We actively support ecosystem-level conservation 
efforts and encourage multi-species planning efforts to avoid or reduce 
the need for future listing actions and facilitate recovery of listed 
species within designated planning areas. Our 1994 policy regarding the 
ecosystem approach to the Act, published in the Federal Register on 
July 1, 1994 (59 FR 34273), directs us to make listing decisions for 
groups of species where possible and implement recovery plans for 
multiple listed and candidate species. However, we also are required to 
determine whether a species is endangered or threatened within specific 
time frames and based on the five factors listed under section 4(a)(1) 
of the Act. Based on these factors, the decision to propose listing 
this subspecies was made in 1998. Once a listing is proposed, we have a 
responsibility to either finalize the listing or withdraw the proposal. 
After reviewing the available data and the comments received, we 
determined that finalizing the listing proposal was the appropriate 
action to take.
    Although the Laramie County Habitat Conservation Plan may address 
the majority of Gaura neomexicana ssp. coloradensis populations, the 
effort is still in the early planning process with no certainty of its 
completion, approval, or implementation. Therefore, we are not able to 
consider the effectiveness of this Habitat Conservation Plan in 
reducing or eliminating the threats to this subspecies in the future as 
part of our listing decision. We must evaluate the threats to G. n. 
ssp. coloradensis based upon existing land-use and regulatory 
mechanisms, which have not always proven adequate in the past to 
conserve the subspecies effectively.
    Issue 2: One commenter stated the proposed rule did not provide 
compelling reasons for not designating critical habitat.
    Our Response: After further review of the available data, we found 
that designating critical habitat is prudent for this subspecies, but 
we are deferring the designation to allow ourselves to concentrate our 
limited resources on higher priority critical habitat (including court 
ordered designations) and other listing actions, while establishing 
protections needed for the conservation of Gaura neomexicana ssp. 
coloradensis without further delay.
    Issue 3: Two commenters stated Gaura neomexicana ssp. coloradensis 
should be listed as endangered and not threatened.
    Our Response: As mentioned above, extensive surveys conducted 
during 1998 showed populations of Gaura neomexicana ssp. coloradensis 
still occurring at the 14 surveyed sites, with 10 of these populations 
either stable or increasing over the long term. The entire population 
of this taxon is estimated to contain between 47,000 and 50,000 
reproductive plants. Although the majority of populations occur on 
private land, two populations, which are considered stable, occur on 
F.E. Warren Air Force Base, and are protected through the Research 
Natural Area designation and through the current Memorandum of 
Agreement. Additionally, a seed bank has been established at the 
Nebraska State Arboretum, and experimental populations have been 
established at the University of Colorado and the University of 
Wyoming. As a result, G. n. ssp. coloradensis does not meet the 
definition of an endangered species under the Act, because it is not in 
imminent danger of extinction in the foreseeable future (see ``Summary 
of Factors Affecting the Species'' below). Therefore, listing as 
threatened is appropriate.
    Issue 4: Three commenters discussed the value of private land in 
plant conservation, saying that the plant's presence on private land is 
an indication that those lands are being managed consistently with the 
conservation of the subspecies. The commenters expressed concern over 
the hardship landowners may have to endure as a result of the listing, 
and one thought conservation efforts should be voluntary without fear 
of fines.
    Our Response: We believe private lands will be of great importance 
in the conservation of Gaura neomexicana ssp. coloradensis. Most 
riparian habitat in the geographic range of the plant is in private 
ownership, so it is reasonable to expect to find most suitable habitat 
and most populations of the plant on private lands. We acknowledge that 
healthy populations of G. n. ssp. coloradensis with stable or 
increasing long-term trends probably reflect land management practices 
that are compatible with the needs of the plant. We encourage the 
continuation of such practices. Additionally, the prohibitions outlined 
in section 9 of the Act are much less restrictive for threatened plants 
on private lands than for animals (see ``Available Conservation 
Measures'' below). Few actions are actually restricted and, therefore, 
there is little likelihood of landowners suffering hardships because of 
the presence of a listed plant on their property.
    Issue 5: Three commenters stated that many agricultural practices 
benefit Gaura neomexicana ssp. coloradensis.
    Our Response: As described above, we recognize that certain 
agricultural practices and disturbances, particularly those that reduce 
competition from late-seral stage plants while allowing Gaura 
neomexicana ssp. coloradensis to set seed, are beneficial to the plant. 
However, some agricultural practices may be harmful to the plant's 
survival. For example, although the plant often does well in grazed 
areas, certain grazing regimes and stocking levels result in poor 
conditions for the plant. Mowing of hay may reduce competing 
vegetation, but if done at the wrong time or too frequently could 
prevent G. n. ssp. coloradensis plants from setting seed. Development 
of water supply and irrigation systems may result in creation of 
suitable habitat in some areas, while adversely affecting existing 
suitable habitat through direct habitat loss and changes in hydrology. 
Further coordination between the Service and the agriculture industry 
will improve our understanding of how agriculture affects the plant and 
its habitat.
    Issue 6: Five commenters discussed noxious weed control. Two 
commenters pointed out that limited or timely spraying of noxious weeds 
may help Gaura neomexicana ssp. coloradensis by eliminating plants that 
aggressively compete for resources, while late haying may allow noxious 
weeds to flourish. Other commenters wanted the Service to identify 
alternatives to herbicides to control noxious weeds.
    Our Response: We recognize the need to control noxious weeds and 
acknowledge that competition from these subspecies may have serious 
negative implications for Gaura neomexicana ssp. coloradensis. However, 
G. n. ssp. coloradensis is highly susceptible to commonly-used 
herbicides when they are applied non-

[[Page 62305]]

selectively. Alternative means of herbicide application and the use of 
biological control agents should continue to be investigated. Further 
studies at F.E. Warren Air Force Base may help identify the best 
methods for noxious weed control in G. n. ssp. coloradensis habitat.
    Issue 7: One commenter wanted the Service to disclose what 
percentage of suitable habitat within the historical habitat has been 
surveyed and either quantify the level of habitat impacts or quantify 
the remaining habitat available for recovery.
    Our Response: Gaura neomexicana ssp. coloradensis has a restricted 
geographic range and high habitat specificity (Fertig 1998b), making 
habitat identification straightforward. The extensive effort associated 
with 1984-1986 surveys is outlined by Marriott (1987), who indicated 
that the majority of suitable habitat had been surveyed for the 
presence of this plant. However, no effort has been made to precisely 
quantify the percentage of suitable habitat that has been surveyed or 
the remaining habitat available for recovery. As access to private 
lands is occasionally restricted and funding for surveys is minimal, 
our ability to identify and survey all suitable habitat or monitor 
habitat for impact is limited. Moreover, disturbance regimes and plant 
succession continually change habitat characteristics, making 
quantification of habitat available for recovery of limited value. 
Therefore, we have based our listing determination on the best 
available information gained from known populations and accessible 
suitable habitat.
    Issue 8: One commenter indicated few Gaura neomexicana ssp. 
coloradensis plants occur in Nebraska, although many occur elsewhere 
within the plant's range. We interpreted this comment to indicate the 
commenter believed the plant should not be listed in Nebraska.
    Our Response: While it is true that few Gaura neomexicana ssp. 
coloradensis plants occur in Nebraska, the Act does not allow for the 
listing of distinct populations of plants. Therefore, any listing 
action would cover the entire range of the subspecies. Additionally, 
the Nebraska plants are facing the same threats occurring elsewhere in 
the range. The loss of these plants would negatively affect 
conservation of the subspecies.
    Issue 9: One commenter expressed concern that listing Gaura 
neomexicana ssp. coloradensis would affect their ability to sell their 
land. We interpret this to be an economic concern.
    Our Response: Under 16 U.S.C., paragraph 1533(b)(1)(A), 50 CFR 
424.11(b), and section 4(b)(1)(A) of the Act, listing decisions are 
made solely on the basis of the best available scientific and 
commercial data. Economic impacts cannot be considered when determining 
whether to list a species under the Act. It also should be noted that 
plants listed under the Act receive only minimal protection on private 
lands.
    Issue 10: Two commenters referenced more recent data available 
since the proposed rule was published. Both commenters cited higher 
population numbers than those used in the proposed rule (especially 
when considering vegetative rosettes), as well as new information 
regarding long-term trends.
    Our Response: We have used the most current information available 
in preparation of this rule, including those documents and studies 
referenced by the commenters. This rule reflects new population 
estimates and trends in the ``Background'' section. Additionally, the 
Service has considered the apparently large number of vegetative 
rosettes. However, the survival rate of the vegetative rosettes is 
generally low and appears to be dependent on many factors, including 
soil moisture, with many small and medium rosettes produced in wet 
years and few during dryer years. The large numbers of vegetative 
rosettes recently documented may merely reflect the wet springs 
experienced recently, rather than a meaningful increase in population 
sizes. It appears few vegetative rosettes survive to reach the size 
necessary for flowering and fruiting. For this reason, as well as the 
difficulty in identifying small rosettes, flowering plants have always 
been counted to estimate population size and trends. Limited data are 
available to establish any trend in number of vegetative rosettes over 
the years or a strong correlation between the number of vegetative 
rosettes and flowering plant population size. Therefore, we believe the 
best indicator of population size for this plant is the number of 
flowering plants.
    Issue 11: One commenter indicated residential and urban development 
cannot be considered a threat to the plant in Laramie County, Wyoming, 
because of existing land use plans.
    Our Response: The Laramie County Comprehensive Land Use Plan 
contains a variety of policies that may protect habitat in 
unincorporated portions of the county, if the County Commissioners 
choose. However, none of the policies offer specific protection for the 
plant or its habitat. Rather, the policies require: (1) Developers 
include a discussion of wildlife resources in the area in an 
Environmental Impact Report, (2) new subdivisions demonstrate no 
threats to nearby irrigators, (3) open space and recreational uses be 
considered the preferred uses in floodplains areas, and (4) existing 
natural and manmade features which affect land use be considered and 
evaluated prior to the approval of new subdivisions and developments. 
Although this guidance certainly allows the County Commissioners to be 
able to make decisions that would assist in conservation of various 
resources, the Laramie County Comprehensive Land Use Plan does not 
mandate conservation of resources in general or Gaura neomexicana ssp. 
coloradensis in particular. In fact, by allowing recreational 
activities such as hiking trails, community gardens, and riding arenas 
in the floodplain, the Laramie County Comprehensive Land Use Plan could 
allow adverse impacts to populations of G. n. ssp. coloradensis.
    Issue 12: One commenter opposed the listing of Gaura neomexicana 
ssp. coloradensis, stating that the Federal government lacks the 
authority under the Commerce Clause of the Constitution to regulate 
this subspecies.
    Our Response: The Federal government has the authority under the 
Commerce Clause of the United States Constitution to protect this 
subspecies, for the reasons given in Judge Wald's opinion and Judge 
Henderson's concurring opinion in National Association of Home Builders 
v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 1185 S.Ct. 
2340 (1998), making it clear in its application of the test used in the 
United States Supreme Court case, United States v. Lopez, 514 U.S. 549 
(1995), that regulation of endangered species limited to one State 
under the Act is within Congress' Commerce Clause power. That case 
involved a challenge to application of the Act's prohibitions to 
protect the listed Delhi Sands flower-loving fly (Rhaphiomidas 
terminatus abdominalis). Judge Wald held that application of the Act's 
prohibition against taking of endangered species was a proper exercise 
of Commerce Clause power to regulate: (1) Use of channels of interstate 
commerce, and (2) activities substantially affecting interstate 
commerce, because applying the Act in that case prevented destructive 
interstate competition and loss of biodiversity. Judge Henderson upheld 
protection of the fly because doing so prevents harm to the ecosystem 
upon which interstate commerce depends and regulates commercial

[[Page 62306]]

development that is part of interstate commerce.
    The Federal government also has the authority under the Property 
Clause of the Constitution to protect Gaura neomexicana ssp. 
coloradensis which occurs on the F.E. Warren Air Force Base. If this 
subspecies were to become extinct or extripated, the diversity of plant 
life on the Air Force Base would be diminished. The courts have long 
recognized Federal authority under the Property Clause to protect 
Federal resources in such circumstances. See e.g., Kleppe v. New 
Mexico, 429 U.S. 873 (1976); United States v. Alford, 274 U.S. 264 
(1927); Camfield v. United States, 167 U.S. 518 (1897); United States 
v. Lindsey, 595 F.2d 5 (9th Cir. 1979).
    Issue 13: Two commenters expressed concern regarding the delays in 
publishing a final listing decision and questioned the need to reopen 
the comment period. Both commenters believe the Service reopened the 
comment period to appease political interests. Additionally, one of the 
commenters indicated there was no new information that would warrant 
reconsideration of the proposal.
    Our Response: We acknowledge our tardiness in publishing the final 
rule. Because of an oversight during the initial comment period for the 
proposed rule, the legal notices required by the Act (section 
4(b)(5)(D)) were not published in any local newspapers. In order to 
fully comply with the Act, we reopened the comment period and published 
legal notices in the ``Fort Collins Coloradoan,'' the ``Wyoming Tribune 
Eagle,'' and ``Western Nebraska Observer.'' Six comment letters were 
received during the reopened comment period, two referencing new 
information regarding population sizes and trends. While our review of 
the new information did not ultimately change the proposed action, the 
Service believed the new information was significant enough to warrant 
consideration.

Peer Review

    In accordance with interagency policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we solicited the expert 
opinions of three independent specialists regarding pertinent 
scientific or commercial data and assumptions relating to the taxonomy, 
population models, and supportive biological and ecological information 
for the taxon under consideration for listing. The purpose of this 
review is to ensure listing decisions are based on scientifically sound 
data, assumptions, and analyses, including input from appropriate 
experts and specialists. Two scientists responded to our request for 
peer review of this listing action and provided information which 
generally supported the biological and ecological data presented in the 
proposed rule.
    One reviewer expressed concern regarding the timeliness of the 
listing. The reviewer indicated listing alone would result in only 
limited conservation on private lands, where most of the known 
populations occur. The reviewer wanted the Service to postpone the 
listing to allow time for a more significant effort to establish 
management agreements with willing land owners.
    Our Response: As stated in response to Issue 1 above, we are 
required to determine whether a species is endangered or threatened 
within specific timeframes and based solely on the five factors listed 
under section 4(a)(1) of the Act. Therefore, the decision was made to 
list this subspecies at this time.
    A second reviewer also felt voluntary conservation measures are 
more likely to protect this subspecies and its habitat than listing 
under the Act. The reviewer indicated that threats are clearly present, 
but many (such as herbicide use) can be mitigated. Additionally, the 
reviewer believed current management of privately-owned agricultural 
lands is largely compatible with the needs of the plant or could be 
made compatible through education. This reviewer believed listing of 
Gaura neomexicana ssp. coloradensis as threatened could undermine its 
conservation if landowners react negatively to its presence, and would 
do little to improve its management on Federal lands, such as F.E. 
Warren Air Force Base. The reviewer indicated that the section 9 
protections discussed in the proposed rule were reasonable and 
consistent with the management needs of the subspecies.
    Our Response: We have to make our listing decision based on 
conservation measures that are currently in place. Even if formal 
conservation agreements were in place, those agreements would need to 
be evaluated based upon the certainty of implementation and 
effectiveness. Many of the current threats could be minimized and 
mitigated through implementation of formal conservation agreements, 
including education programs. However, without those agreements there 
is not a high level of certainty that any conservation measures will be 
implemented. The potential for landowners to react negatively to the 
listing is not a factor that we can consider in making a listing 
decision. However, the Service will conduct outreach in association 
with this listing decision to try to minimize negative reactions by 
landowners and others. Additionally, listing the plant will give the 
Service additional oversight of potential adverse impacts resulting 
from Federal projects through section 7 consultation. This should 
enhance conservation of the species.

Summary of Factors Affecting the Species

    Section 4 of the 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 
endangered or threatened due to one or more of the five factors 
described in section 4(a)(1). These factors and their application to 
Gaura neomexicana ssp. coloradensis are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. Gaura neomexicana ssp. 
coloradensis is restricted to approximately 6,880 ha (17,000 ac) 
running from Colorado Springs, Colorado, north to Cheyenne, Wyoming, 
and spreading into a small portion of southwest corner of Nebraska. Of 
the currently known populations of G. n. ssp. coloradensis, the vast 
majority occur on private lands managed primarily for agriculture. Only 
two populations occur on Federal land, both at F.E. Warren Air Force 
Base. Small populations are found in special management areas at 
Chambers Preserve, Colorado, and Oliver Reservoir State Recreation 
Area, Nebraska. At least three other populations in Wyoming are found 
partly or fully on state school trust lands managed mostly for 
agricultural uses. The Meadow Springs Ranch population in northern 
Colorado is owned by the City of Fort Collins and managed for municipal 
sewage treatment.
    Haying and mowing at certain times of the year, water development, 
land conversion for cultivation, competition from exotic plants, non-
selective use of herbicides, and loss of habitat to urban growth are 
the main threats to the plant on these lands (Marriott 1987; Fertig 
1994). On some sites, including F.E. Warren Air Force Base, habitat 
degradation resulting from plant succession and noxious weed 
competition is the main threat to the long-term survival of 
populations. High recreational use by campers, motorists, and fishermen 
is a threat to populations on State park lands in Nebraska.

[[Page 62307]]

    Conversion of moist, native grasslands to commercial croplands has 
been widespread throughout southeastern Wyoming and northeastern 
Colorado (Compton and Hugie 1993). Since much of the agricultural lands 
are irrigated hay fields, mowing of Gaura neomexicana ssp. coloradensis 
habitat for hay production has been suggested as a potential threat if 
conducted at an inappropriate time of year (Jennings et al. 1997). 
Although this threat can be significant if cutting occurs before the 
plant's fruits have ripened, if cutting is delayed until late in the 
growing season when a hard fruit wall is developed, the seeds are not 
damaged by cutting and may actually be dispersed in the process. 
Likewise, early season mowing (before the flower stalks have bolted) 
may provide some advantages to the plant by reducing the cover of 
competing vegetation (Fertig 1994).
    Construction of stock ponds and reservoirs has inundated some Gaura 
neomexicana ssp. coloradensis habitat and made it unsuitable for the 
subspecies. The development of irrigation canals to move water to 
croplands may remove moisture from occupied or potentially suitable 
habitat leaving it in a drier, unsuitable condition. Additionally, the 
management of water resources for domestic and commercial uses, coupled 
with encroaching agricultural land use, has had a tendency to 
channelize and isolate water resources and fragment, realign, and 
reduce riparian and moist lowland habitat that could otherwise serve as 
potential G. n. ssp. coloradensis habitat (Compton and Hugie 1993).
    Residential and urban development around the cities of Cheyenne and 
Fort Collins has converted areas of formerly suitable Gaura neomexicana 
ssp. coloradensis habitat. The high rate of development occurring from 
Colorado Springs, Colorado, to Cheyenne, Wyoming, has been cited as a 
continuing threat to remaining populations of the Preble's meadow 
jumping mouse, a threatened species that also occurs in riparian 
habitats and whose historic range overlaps much of that of G. n. ssp. 
coloradensis (62 FR 14093).
    In nonagricultural, undeveloped areas, a significant threat to 
Gaura neomexicana ssp. coloradensis populations is habitat degradation 
resulting from succession of the plant community. Without periodic 
disturbance events, the semi-open habitats preferred by this subspecies 
can become choked by tall and dense growth of willows, grasses, and 
exotic weeds (Fertig 1994). Natural disturbances, such as flooding, 
fire, and native ungulate grazing, were sufficient in the past to 
create favorable habitat conditions for the plant. However, the natural 
flooding regime within the subspecies' floodplain habitat has been 
altered by construction of flood control structures and by irrigation 
and channelization practices. In the absence of such natural 
disturbances today, managed disturbance may be necessary to maintain 
and create areas of suitable habitat (Fertig 1994, 1996). However, many 
Federal programs, such as those administered by the USDA Natural 
Resources Conservation Service, focus on enhancing or protecting 
riparian areas by removing the types of disturbance the plant needs, 
increasing vegetative cover, and pushing the habitat into later 
successional stages.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. Given the limited range and concentration of the 
subpopulations, overcollection could be a problem. However, currently, 
there does not appear to be any commercial demand for the subspecies, 
nor is it anticipated that there would be any substantial threat of 
overcollection due to scientific or educational demands.
    C. Disease or predation. There are no known diseases affecting 
Gaura neomexicana ssp. coloradensis populations, although the 
subspecies is occasionally affected by insect galls. G. n. ssp. 
coloradensis is highly palatable to a variety of insect and mammalian 
herbivores (e.g., cattle, horses, and pronghorn (Antilocapra 
americana)), but appears to compensate for herbivory by increasing 
branch and fruit production. Livestock grazing can be a threat at some 
sites if grazing pressures are high due to animals are not being 
rotated among pastures or concentrated use during the summer flowering 
period. Additionally, plants are occasionally uprooted or trampled by 
livestock and wildlife grazing in the vicinity. In at least one 
location where a population of G. n. ssp. coloradensis was divided by a 
fence, the heavily-grazed side of the fence had few or no G. n. ssp. 
coloradensis plants (J. Miller, U.S. Fish and Wildlife Service, in 
litt. 1987). The primary author of this rule also has observed a site 
adversely affected by higher-intensity grazing. However, in a similar 
situation, the more heavily-grazed side of the fence had numerous 
rosettes, but the side with no grazing had dense willow cover and no G. 
n. ssp. coloradensis (Walt Fertig, The Nature Conservancy, in litt. 
1998). In addition to the intensity of grazing, the timing of grazing 
is key to G. n. ssp. coloradensis survival. Observations have shown 
that the plant can persist and thrive in habitats that are winter-
grazed or managed on a short-term rotation cycle (Jennings et al. 
1997). Light to medium grazing can provide additional benefits by 
reducing the competing vegetative cover and allowing G. n. ssp. 
coloradensis seedlings to become established.
    D. The inadequacy of existing regulatory mechanisms. No Federal or 
State laws or regulations specifically protect Gaura neomexicana ssp. 
coloradensis or its habitat. The plant is listed as Sensitive by the 
U.S. Forest Service, although no populations are currently known from 
Forest Service lands (D. Hazlett, Plants and People Consulting, pers. 
comm, 1994). Fertig (1998b) considers the inadequacy of existing 
regulatory mechanisms to be the main impediment to long-term 
conservation of G. n. ssp. coloradensis. Although the Preble's meadow 
jumping mouse, a threatened species, inhabits riparian areas within the 
range of G. n. ssp. coloradensis, these two species prefer different 
stages of vegetational succession. Therefore, measures to protect 
habitat for the mouse may not protect G. n. ssp. coloradensis.
    E. Other natural or manmade factors affecting its continued 
existence. The most serious threat on agricultural lands is non-
selective use of broadleaf herbicides for the control of Cirsium 
arvense (Canada thistle), Euphorbia esula (leafy spurge), and other 
exotic plants (Marriott 1987). The noxious weed problem in Laramie 
County, Wyoming, is particularly evident on F.E. Warren Air Force Base. 
Although competition from these subspecies may have serious negative 
implications for populations of Gaura neomexicana ssp. coloradensis, 
the plant appears to be highly susceptible to commonly used herbicides 
when they are applied non-selectively. In 1983, nearly one-half of the 
mapped populations on F.E. Warren Air Force Base were inadvertently 
destroyed when sprayed with Tordon, a persistent herbicide. 
Additionally, herbicide use along road crossings in and adjacent to G. 
n. ssp. coloradensis populations also has been noted (J. Miller, U.S. 
Fish and Wildlife Service, in litt. 1987). Biological control agents 
have been used at F.E. Warren Air Force Base, but have not yet been 
fully effective in controlling Canada thistle or leafy spurge. 
Introduced gall-forming flies have slowly become established on the 
Base and have reduced the vigor, height, and reproductive ability of 
small patches of Canada thistle (Fertig 1997). The first evidence of 
successful establishment of flea beetles, a biocontrol agent for leafy 
spurge, was

[[Page 62308]]

observed on the Base in 1997 (Fertig 1998a).
    In order for a population to sustain itself, there must be enough 
reproducing individuals and sufficient habitat to ensure survival of 
the population. It is not known if the scattered populations of Gaura 
neomexicana ssp. coloradensis contain sufficient individuals and 
diversity to ensure their continued existence over the long term.
    The most recent survey information for the known populations of 
Gaura neomexicana ssp. coloradensis shows that only 5 of the 14 
surveyed populations are large (i.e., with at least 3,000 or more 
flowering individuals). Only one of these occurs on Federal lands. 
Seven of the surveyed populations (one of them occurring on Federal 
lands) are moderately sized, containing between 500 and 2,500 flowering 
individuals each. The remaining 2 surveyed populations are smaller, 
with less than 200 reproductive individuals each. These small 
populations are threatened by a possible reduction in vigor and 
fecundity (often evidenced by reduced seed set), as random genetic 
changes occur and genetic variability is lost as a result of inbreeding 
which is inevitable in small populations (Ehrlich 1981; Ledig 1986). 
Because of the small, isolated nature of the populations and the few 
individuals present in many of them, G. n. ssp. coloradensis also is 
more susceptible to random events, such as fires, insect or disease 
outbreaks, or other events that can easily cause the extirpation of a 
small population.
    Although the plant evolved with and even depended upon the 
disturbance associated with these types of events, they may now pose a 
threat to Gaura neomexicana ssp. coloradensis. Individual plants may 
not survive such events, and because of low numbers and the now highly 
restricted range of the subspecies, events such as fires and floods 
pose a threat. A flood in 1983 along Crow Creek on the F.E. Warren Air 
Force Base impacted several populations and experimental seed plots 
established in 1981 (U.S. Fish and Wildlife Service, in litt. 1984). 
However, these populations rebounded and have been censussed annually 
since 1986 (Walt Fertig, The Nature Conservancy, in litt. 1998).
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to Gaura neomexicana ssp. coloradensis in determining to issue this 
final rule. While not in immediate danger of extinction, G. n. ssp. 
coloradensis is likely to become an endangered species in the 
foreseeable future if the present threats and declines continue. 
Although some conservation efforts are being conducted on Federal and 
private lands, these efforts are currently not sufficient to provide 
adequate protection for the subspecies. Therefore, Federal listing 
under authority of the Act is the only mechanism we can presently 
identify that will help ensure protection for G. n. ssp. coloradensis 
throughout its limited range.

Critical Habitat

    Critical habitat is defined in section 3, paragraph (5)(A) of the 
Act as 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 essential to the 
conservation of the species and that may require special management 
considerations or protection; and specific areas outside the 
geographical area occupied by a species at the time it is listed in 
accordance with the provisions of section 4 of the Act, upon a 
determination by the Secretary that such areas are essential for the 
conservation of the species. ``Conservation'' means the use of all 
methods and procedures needed to bring the species to the point at 
which listing under the Act is no longer necessary.
    Critical habitat designation directly affects only Federal agency 
actions through consultation under section 7(a)(2) of the Act. Section 
7(a)(2) requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of a listed species or destroy or adversely modify 
its critical habitat.
    Section 4(a)(3) of the Act, as amended, and our implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, we designate critical habitat at the time the species 
is determined to be endangered or threatened. Our regulations (50 CFR 
424.12(a)(1)) state that 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 activity and the 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 Gaura neomexicana ssp. coloradensis because 
of a concern that publication of precise maps and descriptions of 
critical habitat in the Federal Register could increase the 
vulnerability of this subspecies to incidents of collection and 
vandalism. We also indicated that designation of critical habitat was 
not prudent because we believed it would not provide any additional 
benefit beyond that provided through listing as threatened.
    In the last few years, a series of court decisions have overturned 
Service determinations that designation of critical habitat for a 
variety of species 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 Gaura neomexicana ssp. coloradensis would be prudent.
    As with other species we list, we have the concern that 
unrestricted collection, vandalism, or other disturbances could be 
exacerbated by the publication of critical habitat maps and further 
dissemination of locational information. However, we have examined the 
evidence available for Gaura neomexicana ssp. coloradensis and have not 
found specific evidence of taking, vandalism, collection, or trade of 
this 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 this subspecies of taking 
or other human activity.
    In the absence of a finding that critical habitat would increase 
threats to a subspecies, if any benefits would result from a critical 
habitat designation, then a prudent finding is warranted. In the case 
of this subspecies, designation of critical habitat may provide some 
benefits. The primary regulatory effect of critical habitat is the 
section 7 requirement that Federal agencies refrain from taking any 
action that destroys or adversely modifies critical habitat. While a 
critical habitat designation for habitat currently occupied by this 
subspecies would not be likely to change the section 7 consultation 
outcome because an action that destroys or adversely modifies such 
critical habitat also would be likely to result in jeopardy to the 
subspecies, in certain instances, section 7 consultation might be 
triggered only if critical habitat is designated. Examples could 
include some actions in unoccupied habitat or occupied habitat that may 
become unoccupied in the future. Designating

[[Page 62309]]

critical habitat may provide some educational or informational 
benefits. Therefore, we find that critical habitat is prudent for Gaura 
neomexicana ssp. coloradensis.
    As explained in detail in the Final Listing Priority Guidance for 
Fiscal Year 2000 (64 FR 57114), our listing budget is currently 
insufficient to allow us to immediately complete all of the listing 
actions required by the Act. We focus our efforts on those listing 
actions that provide the most conservation benefit. Deferral of the 
critical habitat designation for this subspecies will allow us to 
concentrate our limited resources on higher priority critical habitat 
and other listing actions, without delaying the final listing decision 
for Gaura neomexicana ssp. coloradensis. We will develop a proposal to 
designate critical habitat for G. n. ssp. coloradensis as soon as 
feasible, considering our workload priorities and available funding. 
Unfortunately, for the immediate future, most of Region 6's listing 
budget must be directed to complying with numerous court orders and 
settlement agreements, as well as due and overdue final listing 
determinations.

Available Conservation Measures

    The Nebraska State Arboretum currently maintains a seed bank of 
Gaura neomexicana ssp. coloradensis collected from sites along 
Lodgepole Creek in Nebraska (J. Locklear, Nebraska State Arboretum, 
pers. comm. April 15, 1997). Additional seed has been collected by the 
Natural Resources Conservation Service for deposit at the Bridger Plant 
Materials Center in Montana. Seed from other populations throughout the 
range of this subspecies is needed to ensure adequate genetic 
representation in cultivated stocks and seed banks. Additional testing 
is needed to determine the viability of seed after long periods of 
storage.
    Habitat along Crow and Diamond Creeks on F.E. Warren Air Force Base 
has been designated as the Colorado Butterfly Plant Research Natural 
Area dedicated to the protection of the largest known population of 
Gaura neomexicana ssp. coloradensis, and a management plan has been 
developed (Marriott and Jones 1988). Two relatively large populations 
of G. n. ssp. coloradensis occur within the Colorado Butterfly Plant 
Research Natural Area. Under various memoranda of understanding and 
cooperative agreements with the Service and The Nature Conservancy, the 
Air Force has been conducting conservation activities for this 
subspecies since 1982. However, the current Memorandum of Agreement 
between the Service and the Air Force contains no implementation 
schedule, is subject to the availability of appropriated and non-
appropriated funds and personnel, and can be terminated at any time 
(with 60 days notice). The Base is currently implementing a weed-
control program with special restrictions on the spraying of pesticides 
in G. n. ssp. coloradensis habitat. Continued implementation of 
conservation actions on the Base will enhance the overall conservation 
of the subspecies.
    In 1983 a population of Gaura neomexicana ssp. coloradensis was 
introduced on the Chambers Preserve near Boulder, Colorado. Although 
the reintroduction was initially successful, whether the population 
persists today is unknown. Several private landowners with natural 
populations of the plant have expressed interest in pursuing 
conservation projects; none are currently in place. Protection for 
these natural populations should be encouraged.
    Additionally, as mentioned above, little is known of the genetic 
variability within or between populations. Genetic research to 
determine the degree of genetic variability within and between 
populations of the plant would enable the Service to focus conservation 
measures on maintaining the existing genetic diversity of Gaura 
neomexicana ssp. coloradensis, thus enhancing the subspecies' chances 
of long-term survival. The Air Force is currently funding a genetics 
study focused on populations of G. n. ssp. coloradensis at F.E. Warren 
Air Force Base.
    Conservation measures provided to subspecies listed as endangered 
or threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing encourages and results in public 
awareness and conservation actions by Federal, State, and local 
agencies, private organizations, and individuals. The Act provides for 
possible land acquisition and cooperation with the States and requires 
that recovery actions be carried out for all listed species. Funding 
may be available through section 6 of the Act for the States to conduct 
recovery activities. The protection required of Federal agencies and 
the prohibitions against certain activities involving listed plants are 
discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation of the Act are codified at 50 CFR part 402. 
Section 7(a)(2) of the Act requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of the listed species or destroy or 
adversely modify its critical habitat, if designated. If a Federal 
action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into formal consultation with us, 
under to section 7(a)(2) of the Act.
    Federal agency actions that may require consultation as described 
in the preceding paragraph include altering vegetation, particularly 
through the use of herbicides; implementing livestock grazing 
management that alters vegetation during the flowering season of Gaura 
neomexicana ssp. coloradensis; construction of roads or hiking/biking 
trails along or through riparian areas; channelization and other 
alteration of perennial streams and their hydrological regimes for 
flood control and other water management purposes; permanent and 
temporary damming of streams to create water storage reservoirs or to 
alter the stream's course; construction of residential, commercial, and 
industrial developments, including roads, bridges, public utilities and 
telephone lines, pipelines, and other structures in G. n. ssp. 
coloradensis habitat; and sand and gravel and other types of mining 
activities within or upstream of G. n. coloradensis habitat. In 
addition, sections 2(c)(1) and 7(a)(1) of the Act require Federal 
agencies to utilize their authorities in furtherance of the purposes of 
the Act to carry out conservation programs for endangered and 
threatened species.
    Listing of this plant as threatened would provide for the 
development of a recovery plan, which would identify both State and 
Federal efforts for conservation of the plant and establish a framework 
for agencies to coordinate activities and cooperate with each other in 
conservation efforts. The plan would set recovery priorities and 
describe site-specific management actions necessary to provide for the 
conservation and or recovery of the plant. Additionally, pursuant to 
section 6 of the Act, we would be able to grant funds to affected 
States for management actions promoting the protection and recovery of 
this subspecies.
    The Act and our implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all threatened 
plants. All prohibitions of section 9(a)(2) of the Act, implemented by 
50 CFR 17.71, apply. These prohibitions, in part, make it

[[Page 62310]]

illegal for any person subject to the jurisdiction of the United States 
to import or export, transport in interstate or foreign commerce in the 
course of a commercial activity, sell or offer for sale in interstate 
or foreign commerce, or remove the species to possession from areas 
under Federal jurisdiction. In addition, for plants listed as 
endangered, the Act prohibits the malicious damage or destruction on 
areas under Federal jurisdiction and the removal, cutting, digging up, 
or damaging or destroying of such plants in knowing violation of any 
State law or regulation, including State criminal trespass law. Section 
4(d) of the Act allows for the provision of such protection to 
threatened species through regulation. This protection may apply to 
this subspecies in the future if such regulations were to be issued. 
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 17.72 also provide for the issuance of permits 
to carry out otherwise prohibited activities involving threatened 
plants under certain circumstances. Such permits are available for 
scientific purposes and to enhance the propagation or survival of the 
subspecies. 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 the 
subspecies is not in cultivation or common in the wild.
    It is our policy, published in the Federal Register (59 FR 34272) 
on July 1, 1994, to identify to the maximum extent practicable those 
activities that would or would not be likely to constitute a violation 
of section 9 of the Act if a species is listed. The intent of this 
policy is to increase public awareness of the effect of the listing on 
proposed and ongoing activities within a species' range.
    Collection of listed plants or activities that would damage or 
destroy listed plants on Federal lands are prohibited without a Federal 
endangered species permit. Such activities on non-Federal lands would 
constitute a violation of section 9 of the Act if they were conducted 
in knowing violation of State law or regulation, or in the course of 
violation of State criminal trespass law. Otherwise, such activities 
would not constitute a violation of the Act on non-Federal lands.
    Questions regarding whether specific activities, such as changes in 
land use, will constitute a violation of section 9 should be directed 
to the Wyoming Field Supervisor (see ADDRESSES section). Requests for 
copies of the regulations regarding listed species and inquiries about 
prohibitions and permits may be addressed to: Regional Director, U.S. 
Fish and Wildlife Service, P.O. Box 25486, Denver Federal Center, 
Denver, Colorado 80225-0486.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any information collection requirements 
that require Office of Management and Budget approval under the 
Paperwork Reduction Act.

National Environmental Policy Act

    The Service has determined that an environmental assessment and 
environmental impact statement, as defined under the authority of the 
National Environmental Policy Act of 1969, need not be prepared in 
connection with regulations adopted pursuant to section 4(a) of the Act 
of 1973, as amended. A notice outlining the Service's reasons for this 
determination was published in the Federal Register on October 25, 1983 
(48 FR 49244).

References Cited

    A complete list of all references cited herein, as well as others, 
is available upon request from the Wyoming Field Office (see ADDRESSES 
section).
    Author: The primary author of this document is Mary Jennings of the 
Wyoming Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, it is hereby proposed to amend part 17, subchapter B 
of chapter I, title 50 of the Code of Federal Regulations, as set forth 
below:

PART 17--[AMENDED]

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

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

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


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species
----------------------------------------------------------       Historic range                  Family            Status     When    Critical   Special
          Scientific name                Common name                                                                         listed    habitat    rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         FLOWERING PLANTS
 
                   *                  *                  *                  *                  *                  *                  *
Gaura neomexicana ssp.              Colorado butterfly     U.S.A. (CO, NE, WY).......  Onagraceae...............         T       704        NA        NA
 coloradensis.                       plant.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: September 27, 2000.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 00-26544 Filed 10-17-00; 8:45 am]
BILLING CODE 4310-55-P