62302 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations

931.205–47(h) of this chapter is

applicable to management and operating

contracts under this part and must be

included in the contract’s cost

reimbursement subcontracts.

[FR Doc. 00–26333 Filed 10–17–00; 8:45 am]

BILLING CODE 6450–01–P

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.

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

(1⁄4–1⁄2in.) 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,

Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations 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 northcentral 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.

62304 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations

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 lateseral 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 nonVerDate 11<MAY>2000 08:50 Oct 17, 2000 Jkt 194001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\18OCR1.SGM pfrm03 PsN: 18OCR1
Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations 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

62306 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations

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.

Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations 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 heavilygrazed 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 nonselectively. 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

62308 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations

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

Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations 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 sitespecific 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

62310 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Rules and Regulations

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 nonFederal 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 § 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:

§ 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

Species

Historic range Family Status When

listed

Critical

habitat

Special

rules Scientific name Common name

FLOWERING PLANTS

*******

Gaura neomexicana ssp.

coloradensis.

Colorado butterfly plant ......... U.S.A. (CO, NE,

WY).

Onagraceae ...... T 704 NA NA

*******

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