[Federal Register Volume 70, Number 23 (Friday, February 4, 2005)]
[Proposed Rules]
[Pages 5959-5962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2133]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List Ptilagrostis porteri (Porter feathergrass) as 
Threatened or Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding for a petition to list Ptilagrostis porteri (Porter 
feathergrass) as threatened or endangered under the Endangered Species 
Act of 1973, as amended (the Act). We find that the petition and 
additional information in Service files do not present substantial 
scientific or commercial information indicating that listing this 
species may be warranted. We will not be initiating a further status 
review in response to this petition. The public may submit to us any 
new information that becomes available concerning the status of or 
threats to the species.

DATES: The finding announced in this document was made on January 28, 
2005. New information concerning this species may be submitted for our 
consideration at any time.

ADDRESSES: Data, information, comments, or questions concerning this 
petition finding should be submitted to the Western Colorado 
Supervisor, U.S. Fish and Wildlife Service, Ecological Services Field 
Office, 764 Horizon Drive, Building B, Grand Junction, Colorado 81506. 
The petition finding and supporting information are available for 
public inspection, by appointment, during normal business hours at the 
above address. The petition and finding are available on our Web site 
at http://r6.fws.gov/plants/feathergrass.

FOR FURTHER INFORMATION CONTACT: Allan R. Pfister, Supervisor, Western 
Colorado Ecological Services Field Office, U.S. Fish and Wildlife 
Service (see ADDRESSES section) (telephone (970) 243-2778; facsimile 
(970) 245-6933).

SUPPLEMENTARY INFORMATION: 

Background

    Section 4(b)(3)(A) of the Endangered Species Act (ESA) of 1973, as 
amended (16 U.S.C. 1531 et seq.), requires that we make a finding on 
whether a petition to

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list, delist, or reclassify a species presents substantial scientific 
or commercial information to demonstrate that the petitioned action may 
be warranted. This finding is to be based on all information available 
to us at the time the finding is made. To the maximum extent 
practicable, we make this finding within 90 days of the date the 
petition was received, and notice of the finding must be published 
promptly in the Federal Register.
    We received a petition, dated March 5, 2002, to list the plant 
Ptilagrostis porteri (Porter feathergrass) as threatened or endangered 
within its historic range. The petition was submitted by Jacob Smith, 
Executive Director of the Center for Native Ecosystems, and by the 
Colorado Native Plant Society, Joshua Pollock, Southern Rockies 
Ecosystem Project, and the American Lands Alliance. We received the 
petition on March 7, 2002. Action on this petition was precluded due to 
other priority actions and because funding in Fiscal Years 2002 and 
2003 was not sufficient to process a preliminary finding. The 
petitioners filed a 60-day notice of intent to sue on June 26, 2002, 
alleging that the Service violated the Act by failing to prepare a 90-
day petition finding. A lawsuit was filed in the Federal District Court 
for the District of Arizona on September 17, 2003. An agreement was 
reached on May 24, 2004, specifying that the Service would submit for 
publication in the Federal Register on or before January 31, 2005, a 
determination whether the petition presents substantial information 
indicating that listing may be warranted.

Species Information

    Ptilagrostis porteri is a small, perennial bunchgrass with a tuft 
of fine, narrow basal leaves 2-12 centimeters (cm) (0.8-4.7 inches 
(in)) long. Stems are 20-35 cm (7.9-13.8 in) tall with single-flowered 
spikelets in a terminal panicle about 5-10 cm (2-4 in) long. Panicle 
branches can be closed or open. Awns are 1.5-2 cm (0.6-0.8 in) long, 
feathery, and bent below the middle.
    Ptilagrostis porteri has very specific soil hydration requirements. 
It grows on the shoulders and sides of elevated hummocks that have 
formed in peat fens. The hummocks are elevated above the water table, 
providing a moist but not saturated peat substrate. Most of the 
species' habitat is classified as rich or extreme-rich calcareous fen. 
The pH of these fens is high (7.4-8.6) compared to other montane fens, 
and the peat accumulates at a much slower rate, about 11 cm (4 in) per 
thousand years (Sanderson and March 1996). Fens are considered a 
category 1, irreplaceable resource in the Service's Region 6 (Hartmann 
1999).
    The fens where P. porteri grows are found at elevations from 2,800 
to 3,400 meters (m) (9,200 to 11,200 feet (ft)) in the north end of 
South Park and surrounding Tarryall, Mosquito, and Kenosha mountain 
ranges in Park County, Colorado, about 130 kilometers (km) (80 miles 
(mi)) southwest of Denver. One small population occurs in neighboring 
Summit County, and one small outlier population occurs about 56 km (35 
mi) to the southeast in El Paso County. Extreme-rich fens with a 
similar flora are found elsewhere in the United States in only a few 
locations in Wyoming and California.
    Ptilagrostis porteri is the only Ptilagrostis species in North 
America. The Colorado Natural Heritage Program (CNHP) ranks P. porteri 
as imperiled globally (G2) and in the State of Colorado (S2). It was a 
Federal category 2 candidate species until 1996 when the candidate 
categories were discontinued (61 FR 64481). It is designated as a 
sensitive species on the U.S. Forest Service (USFS) Region 2 list for 
Colorado.
    Twenty-two populations of Ptilagrostis porteri are recorded with 
data in the CNHP data system; three additional records have no 
available information and two historical records have not been 
relocated. The CNHP has determined that there are 284 hectares (ha) 
(702 acres (ac)) of occupied habitat, based on field survey maps of the 
populations recorded in their geographic information system (CNHP 
2004). Other estimates from field observations compiled by Johnston 
(2004) indicate that the total occupied habitat could be 650 ha (1,600 
ac). For this finding, we use the acreage determined by CNHP. Available 
plant inventory records are too inconsistent to provide reliable 
estimates of population sizes or trends (CNHP 2004, Johnston 2004, and 
Sanderson 2000).
    Fourteen of the 22 known populations are on USFS land, primarily in 
Pike National Forest. They contain more than 50 percent of the plants 
on 183 ha (451 ac) of habitat. The remaining 8 populations are in 
private or mixed ownership, and contain less than 50 percent of the 
plants on 104 ha (258 ac) of the known habitat (CNHP 2004).
    Each P. porteri population is ranked by CNHP for quality and 
viability. Six populations are ranked A (relatively large, intact, 
defensible and viable). Five A-ranked populations occur on USFS land, 
covering about 137 ha (338 ac) of occupied habitat; the remaining A-
ranked population occupies an estimated 7 ha (18 ac) of private land. 
Seven populations are ranked B (small but in good condition, or large 
but disturbed and/or not viable or defensible). Five B-ranked 
populations occur on 44 ha (108 ac) of USFS land, and one B-ranked 
population occurs on 54 ha (134 ac) of private land. Eight populations 
are ranked C (small, in poor condition, possibly not viable). Three C-
ranked populations occur on 2 ha (5 ac) of USFS land, three C-ranked 
populations occur on 36 ha (89 ac) of USFS and private lands, and two 
C-ranked populations occur on 6 ha (15 ac) of mostly private lands. One 
population is ranked D (degraded or not viable); it occurs on 0.8 ha (2 
ac) of private land (CNHP 2004).
    The 13 A- and B-ranked populations occur in 2 separate watersheds 
(CNHP 2004). Eight populations are in the South Platte Headwaters 
watershed. They occur along two headwater tributaries flowing down from 
the rim of South Park on the west and north sides to the South Platte 
River, one via the Middle Fork of the South Platte and the other one 
via Tarryall Creek. Five populations are in the Upper South Platte 
watershed. Within this watershed, the populations are located in two 
separate drainages. One drainage runs east into the North Fork of the 
South Platte; the other exits through underground aquifers (von 
Ahlefeldt 1989). This distribution across two watersheds and four 
headwater sources reduces the potential impact to the total population 
that may result from one water project.

Conservation Status

    Pursuant to section 4(a) of the ESA, we may list a species of a 
plant taxon on the basis of any one of the following factors--(A) 
Present or threatened destruction, modification, or curtailment of 
habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) 
inadequacy of existing regulatory mechanisms; or (E) other manmade or 
natural factors affecting its continued existence. The petitioners cite 
threats under factors A, D, and E. The petitioners did not mention any 
threats due to overutilization (factor B). This grass is not easily 
harvested for hay, nor is it currently of commercial or horticultural 
interest. Therefore, overutilization is not considered to be a threat 
to this species. The petitioners likewise did not cite any threats due 
to disease or predation (factor C). Predation from grazing is not 
considered to be a threat to the species because it is not known to be 
palatable to

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livestock, and no diseases or pests are known to have any effect on the 
species (Johnston 2004; von Ahlefeldt 1989; CNHP 2004). Therefore, 
disease and predation are not considered to be threats to this species.
    In regard to factor A (The Present or Threatened Destruction, 
Modification, or Curtailment of the Species' Habitat or Range), the 
petition states that Ptilagrostis porteri habitat is threatened by: (1) 
Water diversions and other hydrological alterations; (2) peat mining 
and other mining; (3) residential development; (4) livestock grazing; 
(5) motorized vehicle use; (6) hiking and other non-motorized 
recreation; and (7) beaver activity.
    Potential impacts to the moisture regime for Ptilagrostis porteri 
arise from water projects that would draw down the ground water level 
and projects that would divert surface water from wetlands and 
irrigated agricultural lands. The water is purchased by municipalities 
in the Denver Metropolitan area. The South Park Conjunctive Use Project 
proposal, cited by the petitioners and active at the time of the 
petition, would have drawn water from creeks upstream of P. porteri 
populations and from the water table under the wetlands in South Park 
to supply the city of Aurora in the Denver Metro area with 2,500 
hectare-meters (ha-m) (20,000 acre-feet (ac-ft)) of water per year. 
Water was to be delivered as stream flow in a main tributary creek to 
the South Platte River (U.S. Geological Survey 2002). The project would 
have impacted two of the four major drainages where high-quality P. 
porteri populations are found, and may, therefore, have constituted a 
threat to the species. Lowering the water table in the fen habitat 
would create conditions too dry for P. porteri, whereas construction of 
recharge reservoirs could over-water the microhabitat for P. porteri 
and could destroy the fen vegetation community. Petitioners state that 
the project threatened to severely impact 50 to 75 percent of the total 
habitat occupied by P. porteri, based on an assessment by Sanderson 
(2000).
    The South Park Conjunctive Use Project proposal was rejected in 
District Court for Water Division No. 1 in 1998 in favor of the 
plaintiff, the Park County Water Preservation Coalition, based on 
augmentation modeling that showed that available water was 
insufficient. The Colorado Supreme Court rejected an appeal after the 
date this listing petition was submitted (Colorado Bar Association 
2002). No other major water draw-down projects are currently being 
proposed in Park County (G. Nichols 2004, Eiseman 2004).
    The City of Aurora recently purchased 900 ha-m (7,000 ac-ft) of 
water per year from an existing City of Thornton project that has been 
diverting water from 11 South Park ranches for about 20 years (McHugh 
2004). There are no available data to indicate whether Ptilagrostis 
porteri habitat has been impacted by this ongoing diversion. The City 
of Centennial in the metropolitan Denver area has purchased surface 
water from another ranch that has a 35-ha (86-ac) C-ranked population 
of P. porteri. Two other populations described by the petitioners have 
been ditched and partially drained in the past. Both of these 
populations are ranked C because they are small, but the remaining 
habitat still has a water level sufficient to support the species (CNHP 
2004). The town of Fairplay is no longer depending on Beaver Creek 
water that flows through two P. porteri populations; they are now using 
well water (G. Nichols 2004).
    Conservation easement agreements including water rights have 
recently been completed for three private ranches as part of the South 
Park Basin Legacy Project. Completed easements now protect a 7-ha (18-
ac) A-ranked population and a 0.8-ha (2-ac) D-ranked population (CNHP 
2004).
    Based on the foregoing, we have concluded that neither the petition 
nor our files contain substantial information indicating that listing 
this species may be warranted based on impacts from water diversions 
and other hydrological alterations.
    Petitioners state that there is a moratorium on peat mining in Park 
County and that the threat is primarily the possibility that the 
moratorium could be rescinded. Park County regulations allow peat 
mining to continue if it was permitted before the new policy was 
adopted, but the County has no record of current activity, nor is there 
any expectation that new operations will be allowed (Eiseman 2004). 
Sanderson and March (1996) reported that nearly 20 percent of the total 
extreme rich fen area in South Park has been permanently lost due to 
past mining of peat. At least four populations of Ptilagrostis porteri 
have been partially destroyed by peat mining in the past. The remaining 
portions of these fens survive in good condition because they have 
subsurface water sources (CNHP 2004). The hypothetical possibility of 
repeal of protective regulations is not substantial information. 
Therefore, we conclude that there is not substantial information to 
indicate that listing the species may be warranted as a consequence of 
impacts from peat mining.
    Placer mining has occurred in the past, and continues at one 
Ptilagrostis porteri location under a USFS permit issued in 1993. The 
permit covers small-scale recreational mining, comprising about 30 
dredging days per year and other activities by about 20 people on 
weekends and 4 people on weekdays between May and October. A draft 
Biological Evaluation by the USFS in 2000 (Howard 2000) found no effect 
to sensitive plant species, although P. porteri is known to occur 
within the project area. The petition and our files do not contain 
substantial information indicating that placer mining might be a threat 
to the species.
    Petitioners state that residential development alters local 
hydrology and removes wetland habitat by infilling and, therefore, is a 
threat to Ptilagrostis porteri. Based on private land ownership (CNHP 
2004), about 7 of the 22 populations may be vulnerable to this threat; 
2 of the 7 have recently been placed in conservation easements. These 
populations are located in the South Platte Headwaters watershed in 2 
of the 4 main drainage systems that support the species. More new 
residential development has occurred in South Park in the last 5 years 
than in the 20 years from 1980 to 2000 (G. Nichols 2004). There are 4 
centers of new residential development in South Park along Sacramento 
Creek and the Middle Fork of the South Platte, at Warm Springs Ranch 
and in the Silver Hills area, all of which are close to populations of 
P. porteri. No substantial information is provided in the petition or 
available in our files on actual impacts of the existing developments 
on nearby wetlands. Although there are potential cumulative effects on 
hydrology and physical structure of the fens, we conclude that there is 
no substantial information in the petition or our files indicating that 
these might warrant a listing proposal.
    Petitioners state that excessive livestock grazing can cause 
trampling damage to the fen habitat of Ptilagrostis porteri. Grazing 
pressures have fluctuated historically. Records kept by the USFS for 
allotments where the largest P. porteri populations now occur show that 
cattle grazing was intense during the 1920s and 1930s. Since 1968, 
major changes in management have been implemented on the National 
Forest. Photographs taken in 1939 and 1989 show a dramatic increase in 
vegetation cover on the fens (von Ahlefeldt 1989), and von Ahlefeldt 
considered moderate grazing to have a minor impact on P. porteri 
because cattle find it unpalatable and they usually walk between the 
hummocks

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without trampling the plants. Field observations of grazing impacts on 
P. porteri populations over the past 35 years indicate a significant 
change in grazing management and consequent improvement in the visible 
condition of vegetation on the fens (CNHP 2004, Johnston 2004). We 
conclude that neither the petition nor information in our files 
provides substantial information that grazing is, or is likely to be in 
the foreseeable future, a threat to the species.
    Petitioners state that evidence of off-road vehicle use, including 
snowmobiles, has been observed at five of the Ptilagrostis porteri 
populations. Similar observations have been recorded by CNHP (2004). 
There is no available additional documentation of the effects of such 
impacts on this species or its habitat. Thus we conclude that there is 
no substantial information to indicate that off-road vehicle use 
presents a threat to the species.
    Petitioners state that trail widening and erosion damage nearby 
peat bogs. Only minor impacts of this type have been recorded by field 
surveyors (CNHP 2004). Neither the petition nor our files provides 
additional information to support the petition's contention that this 
is a threat to the species. In addition, petitioners cite beaver 
activity as a potential threat, but state that it is not currently 
threatening any known populations of Ptilagrostis porteri. We have no 
information to contradict petitioner's statement that beaver activity 
is not currently threatening any known populations.
    In regard to factor D (The Inadequacy of Existing Regulatory 
Mechanisms), petitioners state that existing regulatory mechanisms are 
inadequate to ensure protection and recovery for Ptilagrostis porteri. 
The USFS currently manages P. porteri as a sensitive species and the 
habitat is managed as wetlands, in accordance with the USFS Region 2 
Policy on protection of fens (Hilliard 2002) and the Watershed 
Conservation Practices Handbook for Region 2 (2001). The USFS manages 
about 65 percent of the P. porteri habitat. The largest known 
population, A-ranked by CNHP, is in a Federal Wilderness Area on the 
Pike National Forest. The management practices under these regulations 
are discussed under Listing Factor A. Just as we determined that there 
is not substantial information in the petition or our files that the 
effects of these regulations may warrant listing, there is also no 
substantial information that the regulations themselves are inadequate 
and might warrant a listing.
    Petitioners cite the lack of regulations to prevent impacts caused 
by water diversions as a threat. However, as discussed above, existing 
law and regulatory mechanisms have resulted in termination of the 
project cited by petitioners as the greatest threat to the species. The 
petition does not present, nor do we have, substantial information on 
other specific threats related to water diversions. Hypothetical 
possibilities do not constitute substantial scientific information 
indicating a listing may be warranted. Thus we conclude that the 
petition has not presented substantial information to indicate that 
lack of adequate regulatory mechanisms is a threat to the species.
    In regard to factor E (Other Natural or Manmade Factors Affecting 
the Continued Existence of Ptilagrostis porteri), the petitioners 
consider the species to be vulnerable due to the small size of most of 
its populations. They report that only 9 populations have more than 300 
plants, 9 have 100 or fewer plants, and 5 populations have 20 or fewer 
plants. The CNHP (2004) reports 9 recorded populations smaller than 2 
ha (5 ac); 1 is ranked A, 1 is ranked B, 6 are ranked C, and 1 is 
ranked D (the C and D populations are so ranked primarily because they 
are small). The size of these small populations refers to the extent of 
occupied habitat within fens that are more extensive. Therefore, size 
of the population may not be related to size or condition of the 
habitat or age or susceptibility to drying out. Size also may not 
indicate ability to reproduce, because the plants can self-fertilize. 
Thus available information is not substantial enough to indicate that 
small numbers of plants or acreage by itself pose a threat to this 
species.

Finding

    We have reviewed the petition and its supporting documentation, as 
well as information in our files and other readily available 
information. On the basis of this review, we find that the petition 
does not present substantial information indicating that listing of 
Ptilagrostis porteri may be warranted, nor do we have such information. 
The petition is based primarily on the threat of habitat destruction by 
major water draw-down and diversion projects. The major water draw-down 
project that was imminent at the time of petition submission (2002) is 
no longer proposed. No water projects are currently planned on Federal 
land within the species' range. Likewise, substantial information is 
not available to indicate that the other potential impacts cited by the 
petitioners rise to a level that threatens the species.
    In making this finding we rely on information provided by the 
petitioners and that readily available to us, and evaluate that 
information in accordance with 50 CFR 424.14(b). The contents of this 
finding summarize information included in the petition and information 
that was available to us at the time of the petition review. Our review 
for the purposes of a so-called ``90-day'' finding under section 
4(b)(3)(A) of the ESA and Sec.  424.14(b) of our regulations is limited 
to a determination of whether the information in the petition 
constitutes ``substantial scientific or commercial information'' 
indicating that listing may be warranted. Available information 
indicates that the primary threat cited in the petition has been 
eliminated, and the information relating to it is accordingly no longer 
applicable. We found that the petition did not provide substantial 
information on the other threats cited, many of which by the petition's 
own wording are potential or hypothetical threats rather than existing 
ones.

References

    A complete list of all references cited in this finding is 
available upon request from the Grand Junction Ecological Services 
Field Office (see ADDRESSES section).

Author

    The primary author of this document is Ellen Mayo, Grand Junction 
Ecological Services Field Office, U.S. Fish and Wildlife Service (see 
ADDRESSES section).

Authority

    The authority for this action is the ESA of 1973, as amended (16 
U.S.C. 1531 et seq.).

    Dated: January 28, 2005.
Marshall P. Jones,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 05-2133 Filed 2-3-05; 8:45 am]
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