[Federal Register: September 29, 2009 (Volume 74, Number 187)]
[Proposed Rules]               
[Page 49835-49842]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

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

Endangered and Threatened Wildlife and Plants; 12-month Finding 
on a Petition To Revise Critical Habitat for Eriogonum pelinophilum 
(Clay-Loving Wild Buckwheat)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 12-month petition finding.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce our 
12-month finding on a petition to revise critical habitat for Eriogonum 
pelinophilum (clay-loving wild buckwheat) under the Endangered Species 
Act of 1973, as amended (Act). After a thorough review of all available 
scientific and commercial information, we find that revisions to 
critical habitat for E. pelinophilum are warranted but precluded by 
other priorities. Given this finding, we intend to initiate rulemaking 
when we complete the higher priorities and we have the necessary 
resources to do so.

DATES: The finding announced in this document was made on September 29, 

ADDRESSES: This finding is available on the Internet at http://
www.regulations.gov. Supporting documentation we used to prepare this 
finding is available for public inspection, by appointment during 
normal business hours at the U.S. Fish and Wildlife Service, Western 
Colorado Ecological Services Office, 764 Horizon Drive, Building B, 
Grand Junction, CO 81506-3946, by telephone at 970-243-2778; or by 
facsimile at 970-245-6933.

FOR FURTHER INFORMATION CONTACT: Patty Gelatt, Acting Western Colorado 
Supervisor, Fish and Wildlife Service, Western Colorado Ecological 
Services Office, 764 Horizon Drive, Building B, Grand Junction, CO 
81506-3946, by telephone at 970-243-2778; or by facsimile at 970-245-
6933. Persons who use a telecommunications device for the deaf (TDD) 
may call the Federal Information Relay Service (FIRS) at 800-877-8339. 
Please include ``Eriogonum pelinophilum scientific information'' in the 
subject line for faxes and emails.

SUPPLEMENTARY INFORMATION: Section 4(b)(3)(D)(ii) of the Act (16 U.S.C. 
1531 et seq.) requires that, for any petition containing substantial 
scientific and commercial information that indicates revisions to 
critical habitat may be warranted, we make a finding within 12 months 
of the date of receipt of the petition and publish a notice in the 
Federal Register indicating how we intend to proceed with the requested 


Previous Federal Actions

    We proposed to list Eriogonum pelinophilum as an endangered species 
in 1983, and we proposed critical habitat at the same time (48 FR 
28504; June 22, 1983). We published the final rule designating the 
species as endangered in 1984, along with a final critical habitat 
designation (49 FR 28562; July 13, 1984). Critical habitat, as 
designated in 1984, encompassed 119.8 acres (ac) (48.5 hectares (ha)), 
which was then the entire known range of the species (49 FR 28562; July 
13, 1984).
    On July 24, 2006, we received a petition dated July 17, 2006, from 
the Center for Native Ecosystems, the Colorado Native Plant Society, 
and the Uncompahgre Valley Association (collectively referred to here 
as the petitioners) requesting that we amend the critical habitat 
designation for Eriogonum pelinophilum (Center for Native Ecosystems et 
al. 2006, p. 1). The petition clearly identified itself as a petition 
and included the requisite identification information that 50 CFR 
424.14(a) requires. The petition contained a species and habitat 
description for E. pelinophilum, a description of previous Federal 
actions, a section addressing statutory requirements for E. 
pelinophilum, a description of the various populations and their 
status, a section addressing threats to E. pelinophilum, and 
recommendations regarding critical habitat for the species. Potential 
threats discussed in the petition include destruction and modification 
of habitat, herbivory, and inadequate regulatory mechanisms.
    On September 29, 2006, we acknowledged the receipt of the petition 
but stated that given staff and budget limitations we could not work on 
the administrative finding at that time (Service 2006, in litt.). On 
November 13, 2006, we received a letter dated November 9, 2006, from 
the petitioners notifying us of their 60-day intent to sue for our 
failure to make a 90-day finding for Eriogonum pelinophilum (Center for 
Native Ecosystems 2006, in litt.). On March 3, 2008, the petitioners 
filed suit with the United States District Court for the District of 
Colorado for our failure to make a 90-day finding for the species 
(Center for Native Ecosystems 2008). On September 25, 2008, a 
settlement agreement was reached whereby the Service agreed to submit a 
90-day finding to the Federal Register by June 15, 2009, and, if the 
petition was considered substantial, submit a 12-month finding to the 
Federal Register by September 21, 2009 (U.S. Department of Justice 
2008). This 12-month finding evaluates the status of existing critical 
habitat as stipulated in the settlement.
    We published our 90-day finding regarding the petition to revise 
critical habitat for Eriogonum pelinophilum on June 22, 2009 (74 FR 
29456). We determined the petition presented substantial information 
indicating that revising critical habitat for E. pelinophilum under the 
Act may be warranted, thus initiating this 12-month finding (74 FR 
29456; June 22, 2009). We have fully considered all information 
received in response to information requested in our 90-day finding.
    This 12-month finding discusses only those topics directly relevant 
to the revisions of existing critical habitat for Eriogonum 
pelinophilum. We also are in the process of preparing a 5-year review 
for E. pelinophilum where we are conducting a more thorough review of 
the species' status (73 FR 58261; October 6, 2008).

Species Information

    Eriogonum pelinophilum was first collected near Hotchkiss, 
Colorado, in Delta County in 1958 (Reveal 2006, p. 1). The species was 
first recognized as its own taxon in 1969, and officially described in 
1973 (Reveal 1969, pp. 75-76; 1973, pp. 120-122). No other locations 
were identified until 1984 (Colorado Natural Areas Program (CNAP) 1986, 
p. 1).

[[Page 49836]]

    Eriogonum pelinophilum is a low growing, rounded, densely branched 
subshrub in the buckwheat family (Polygonaceae). It has dark green 
inrolled leaves that appear needlelike, and clusters of white to cream 
colored flowers with greenish-red to brownish-red bases and veins at 
the end of the branches.
    The life history of Eriogonum pelinophilum has been examined in two 
short-term demography studies that track a plant population's change in 
size and structure through time. The first study was conducted on 
Bureau of Land Management (BLM) lands at the Fairview Research Natural 
Area in 1987 and 1988 (CNAP 1986; 1987). The second study was conducted 
at the Wacker Ranch where life history information was gathered in 
1990, 1992, 1993, and 1994 (Carpenter and Schulz 1994), and again in 
2008 (Lyon 2008). Neither of these studies occurred over sufficient 
time periods nor were they conducted frequently enough to calculate 
critical life history stages for E. pelinophilum's success. In 
addition, neither study has enough demographic detail to assist in the 
development of a population viability model. However, both studies do 
add to our understanding of the species' longevity, habitat, and site 
differences, as described in the following two paragraphs.
    The CNAP life history study for Eriogonum pelinophilum established 
four permanent monitoring plots, two plots at Fairview North and two 
plots 4 miles (mi) (6 kilometers (km)) south at Fairview South, and 
tagged 220 plants (CNAP 1987, p. 1). Significant differences in aerial 
cover, flowering rate, and vigor of E. pelinophilum between plots (CNAP 
1987, p. 3) suggest site characteristics may influence plant 
characteristics such as abundance and size. Artemisia nova (black 
sagebrush) was the dominant species by basal area in most plots, but E. 
pelinophilum had the greatest density and frequency (CNAP 1987, p. 8). 
E. pelinophilum occurred in the highest densities away from other 
shrubs (CNAP 1987, p. 8).
    Mortality from 1990 to 1994 averaged 6.0 percent at six permanent 
Eriogonum pelinophilum transects at the Wacker Ranch site but varied 
from 1.2 to 26.1 percent and was spread across age classes (Carpenter 
and Schultz 1994, p. 3). Observed growth rates and the number of 
seedlings observed varied considerably by transect (Carpenter and 
Schultz 1994, p. 3). This information supports the conclusion that E. 
pelinophilum is very long-lived and that environmental conditions vary 
considerably over relatively short distances (Carpenter and Schultz 
1994, pp. 3-4). When five of the six transects were revisited in 2008, 
67 percent remained alive after 18 years, further supporting the idea 
that the plant is long-lived (Lyon 2008, p. 2). In addition to the 181 
tagged plants, at least 321 new plants were located along the 5 
relocated transects (Lyon 2008, p. 2). Results were not statistically 
adequate to detect a change in species abundance (Lyon 2008, p. 3), but 
do suggest that the species may be stable or increasing at the Wacker 
Ranch site.
    Eriogonum pelinophilum requires a pollinator, and for much of the 
flowering season is the most abundant species in bloom in its habitat 
(Bowlin et al. 1992, p. 300). Flowering typically occurs from late May 
to early September with individual flowers lasting fewer than 3 days 
(Bowlin et al. 1992, p. 298). Over 50 species of insects visit E. 
pelinophilum flowers (Bowlin et al. 1992, pp. 299-300). Roughly half of 
these 50 species are native bees and 18 species are native ants (Bowlin 
et al. 1992, pp. 299-300). Seed set is similar between plants that were 
pollinated by ants versus flying pollinators, suggesting the importance 
of ants to pollination of the species (Bowlin et al. 1992, p. 299). 
Harvester ants remove some fruits (Bowlin et al. 1992, p. 299); 
however, no information is available for the species on seed dispersal 
    Eriogonum pelinophilum plants have been found to be smaller at 
disturbed sites but the number, richness, diversity, or equitability of 
pollinators was not significantly different between disturbed and 
undisturbed sites (Tepedino 2009, p. 38). Of all Eriogonum species 
studied to date, none has as many pollinators as E. pelinophilum 
(Tepedino 2009, p. 39). These pollinators cover a wide array of 
taxonomic and functional types of insects that visit the flowers for 
nectar and pollen (Tepedino 2009, pp. 38-39). No single pollinator or 
group of pollinators appears particularly important for E. pelinophilum 
pollination (Tepedino 2009, pp. 38-39, Appendix A). Therefore, 
preservation of specific pollinators is not a significant concern in 
conservation of the species (Tepedino 2009, p. 38). Conservation of E. 
pelinophilum should focus primarily on the conservation of undisturbed 
habitat and associated plant species in as many separate areas as 
possible to manage for the wide array of pollinators (Tepedino 2009, p. 
    Eriogonum pelinophilum is considered a close relative or synonymous 
with E. clavellatum and a close relative of E. contortum (Reveal 2006, 
p. 3). All three species are currently recognized as distinct (Reveal 
2005b, p. 1; J. Kartesz, Biota of North America Project 2009, in litt., 
p. 1). The most recent assessment indicates that preliminary genetic 
analyses show that E. pelinophilum is allied to, but distinct from E. 
clavellatum, and both are distinct from E. contortum (Reveal 2006, p. 
3). Morphological and distributional differences also occur between E. 
pelinophilum, E. contortum, and E. clavellatum. E. pelinophilum has 
white flowers and occurs in Delta and Montrose Counties, Colorado, 
whereas E. contortum has yellow flowers and occurs farther north in 
Mesa and Garfield Counties, Colorado, and Grand County, Utah (Spackman 
et al. 1997, E. pelinophilum page). E. pelinophilum is shorter, 
measuring 2 to 4 inches (in.) (0.5 to 1 decimeters (dm)), has smaller 
involucres (bracts below the flowers - 0.12 to 0.14 in. [3 to 3.5 
millimeters (mm)] long), with petals all the same length. E. 
clavellatum is taller measuring 4 to 8 in. (1 to 2 dm), has larger 
involucres (0.16 to 0.18 in. [4 to 4.5 mm] long), with two different 
sized petals, and is only known from Montezuma County, Colorado and 
adjacent San Juan Counties in Utah and New Mexico (Spackman et al. 
1997, E. pelinophilum page; Reveal 2005c, p. 1).

Habitat Information

    Eriogonum pelinophilum is endemic to the rolling clay (adobe) hills 
and flats immediately adjacent to the communities of Delta and 
Montrose, Colorado. The plants extend from near Lazear, east of Delta 
on the northern end of the species' range, to the southeastern edge of 
Montrose in Delta and Montrose Counties, Colorado, and occur from 5,180 
to 6,350 feet (1,579 to 1,965 meters) in elevation (Colorado Natural 
Heritage Program (CNHP) 2006, p. 3; Nature Serve 2008, pp. 4-5; CNHP 
2009, spatial data; Service 2009a, Table 1). E. pelinophilum is known 
from an area measuring roughly 11.5 mi (18.5 km) from east to west and 
28.5 mi (45.6 km) from north to south (CNHP 2009, spatial data). The 
Delta/Montrose area is dry, receiving an average of 8 to 9 in. (20 to 
23 centimeters (cm)) of precipitation a year (Western Regional Climate 
Center 2009a, p. 1; 2009b, p. 1). Winters are cold, with January being 
the coldest month, averaging 12 to 39 degrees Fahrenheit (-11 to 4 
degrees Celsius). Summers are hot, with July being the hottest month, 
averaging 55 to 93 degrees Fahrenheit (13 to 34 degrees Celsius) 
(Western Regional Climate Center 2009a, p. 1; 2009b, p. 1).
    The soils where Eriogonum pelinophilum are found are whitish, 
alkaline (with a pH over 7), clay soils of

[[Page 49837]]

the Mancos shale formation, a Cretaceous marine sediment formation. 
Mancos shale outcrops are relatively barren of vegetation in comparison 
to surrounding areas (Potter et al. 1985, p. 137). Several components 
of the clay soils of the Mancos shale limit plant growth: soils are 
fine-textured and lose moisture more readily; clay soils are 
compactable which limits gas exchange and thus root growth; and clay 
soils hold more water which is unavailable for plant use because water 
infiltration is slower than other soil types, and the extreme swelling 
and shrinking of the soils limits water availability and oxygen 
exchange for plant roots (Potter et al. 1985, p. 139). In addition, the 
soils are calcareous (containing calcium carbonate).
    The U. S. Geological Survey is researching the Mancos shale soils 
occupied by Eriogonum pelinophilum at the Gunnison Gorge National 
Conservation Area (GGNCA). Preliminary results suggest that E. 
pelinophilum is associated with silty clay and silty clay loam soils 
that can be classified as normal or saline-sodic in relation to pH, 
electrical conductivity, and sodium adsorption ratio (SAR) of saturated 
soil paste extracts (Grauch 2009, in litt., p. 1). The principal 
difference between occupied and unoccupied soils is that the occupied 
soils have fairly constant SAR values with depth while unoccupied soils 
have more variable SAR values. Electrical conductivity values of the 
saturated soil paste extracts have a similar pattern of variation with 
depth (R. Grauch, in litt. 2009, p. 1). A subsequent study comparing 
the soil samples collected in the study above to soil samples across 
the Mancos shale terrain of the GGNCA is underway and expected to be 
available within the next 3 years.
    Soils appear to play a large role in the distribution of Eriogonum 
pelinophilum. Therefore, we conducted a geospatial analysis using 
Natural Resources Conservation Service (NRCS) soil layers (Paonia and 
Ridgeway soil surveys - NRCS 2006a, metadata; 2008, metadata) to better 
understand the distribution of E. pelinophilum. The analysis overlaid 
soil types with the distribution of E. pelinophilum in an effort to 
determine which soil types were most common where the plants occur. For 
this analysis, we buffered all known locations by 33 feet (10 meters). 
We employed this buffer so that E. pelinophilum sites represented by a 
point would more accurately represent the plant habitat where those 
points are located (Service 2009b, p. 1). For this reason, acreage 
figures differ significantly from those listed in the ``Population 
Status'' section below.
    The Paonia and Ridgeway soil surveys differ in their naming and 
definitions of the various soil units, making the data analysis 
inconsistent between the two surveys. Data was not available for 9 
percent (96 ac (39 ha)) of habitat occupied by E. pelinophilum. Given 
these shortcomings, we found the following five soils were most common 
within the 1,129 ac (457 ha) of occupied habitat of E. pelinophilum: 1) 
typic torriorthents (both 10- to 25-percent slopes, and -Badland 
complex with 25- to 75-percent slopes) comprised roughly 35 percent 
(390 ac (158 ha)); 2) ellaybee-persayo silty clay loams (5- to 12-
percent slopes) comprised roughly 26 percent (294 ac (119 ha)); 3) 
killpack silty clay loam (3- to 12-percent slopes) comprised roughly 7 
percent (84 ac (34 ha)); 4) chipeta silty clay (3- to 30-percent 
slopes) comprised 7 percent (77 ac (31 ha)); and 5) Montrose-Delta 
complex (0- to 2-percent slopes) comprised 6 percent (64 ac (26 ha)). 
Soil types are described as erosion remnants weathered from calcareous 
shale and are highly erodible by water (Soil Conservation Service 1981, 
pp. 24 and 39; NRCS 2006b, map unit descriptions). Several other soil 
types occurred within occupied habitat, but none comprised over 3 
percent or 30 ac (12 ha).
    Eriogonum pelinophilum plants are generally found within swales or 
drainages where there is more moisture than surrounding areas. These 
swales are generally located in low-lying areas with rolling 
topography. Steeper, more barren slopes within the Mancos shale 
habitats, but with more toxic soils for plant life, exist upslope of 
where the plants occur, generally within 1 mi (1.6 km). E. pelinophilum 
plants at lower elevation sites near Delta were associated with small 
areas where snow lingers longer than surrounding areas because of their 
north- and east-facing aspects (Ewing and Glenne 2009, p. 2).
    Plant communities associated with Eriogonum pelinophilum are 
characterized by low species diversity, low productivity, and minimal 
canopy cover (NatureServe 2008, p. 4). The associated vegetation is 
sparse, with E. pelinophilum generally one of the dominant species 
(CNAP 1987, Table 2). In lower elevations near Delta, the dominant 
plant species is Atriplex corrugata (mat saltbrush) but at higher 
elevations near Montrose the dominant plant species is Artemesia nova 
(black sagebrush), although A. corrugata is still abundant (Southwest 
Regional Gap Analysis Project 2004, spatial data). Other associated 
species include Atriplex confertifolia (shadscale), Atriplex gardneri 
(Gardner's saltbush), Picrothamnus desertorum (formerly Artemisia 
spinescens) (bud sagebrush), Xylorhiza venusta (charming woodyaster), 
and another local endemic Penstemon retrorsus (Adobe Hills beardtongue) 
(CNAP 1987, Table 2; Coles 2006, p. 1; NatureServe 2008, p. 4).

Population Status

    Based on information provided by the CNHP in January 2009, 20 
Eriogonum pelinophilum Element Occurrences (EOs) are currently known 
(CNHP 2009, pp. 1-81; Service 2009a, Table 1). The EOs are utilized by 
Natural Heritage Programs to track rare species and are defined as an 
area where a species is or was present. For E. pelinophilum, EOs are 
comprised of one to many polygons (sites) based on a standardized 
maximum separation distance, in this case 1.2 mi (2 km) across suitable 
habitat and 0.6 mi (1 km) across unsuitable habitat (CNHP 2007, p. 1). 
However, upon closer examination, we found that several EOs, as 
designated by CNHP, were within 0.6 mi (1 km) of one another. For the 
purpose of this discussion, we have left the EOs as designated by CNHP. 
Of these 20 EOs, 7 have not been relocated in over 20 years and are 
considered historical. A survey was conducted at an additional EO where 
no plants were relocated (CNHP 2009, pp. 1-81; Service 2009a, Table 1). 
Table 1 is provided below to portray the EOs and their land management 
or ownership status. Figure 1 shows the distribution of E. pelinophilum 
habitat in Colorado with EO Numbers and percent occupancy.

[[Page 49838]]

                   TABLE 1. The Colorado Natural Heritage Program Eriogonum pelinophilum EOs.
    The EO ranks A, B, C, and D represent the quality of the EO (from best to worst quality, respectively), H
  indicates an EO has not been visited in over 20 years, and F indicates an EO that could not be relocated upon
                                                subsequent visit.
                                                                                           Land Management  with
           EO Number                 EO Rank\1\         Acreage\2\      Population Name     Rough Estimates of
                                                                                           Ownership Percentage
001                                                                    Lawhead Gulch      private
003                              B                  67                 North Selig Canal  33% BLM- 66% private
004                              B                  17                 Olathe South       private
006                              B                  15                 North Mesa         private
007                              H, C                                  Peach Valley       private
011                              C                  110                North Fairview     50% BLM - 50% private
012                              B                  25                 Sunshine Road      5% BLM - 95% private
013                              H, C               (4)                Cedar Creek        private
014                              A                  7                  Candy Lane/Peach   BLM
015                              F                  (70)               Selig Canal 3      private
016                              C                  13                 Dry Cedar Creek    BLM
017                              H, C               (20)               Oak Grove Road     private
018                              A                  212                Wacker Ranch/      70% BLM - 20% Colorado
                                                                        Fairview South     State (CNAP) - 10%
019                              H                  (2)                Star Nelson        private
021                              H, C               (26)               Montrose East      private
022                              H, C               (19)               Montrose East      private
023                              H                                     Hotchkiss          unknown
024                              D                  8                  Montrose           private
025                              B                  18                 Selig Canal        90% BLM - 10% private
041                              B                  6                  Garret Ditch       66% BLM - 33% private
none                             none               3                  Peach Valley       33% BLM - 66% private
none                             none               2                  Loutsenhizer       BLM
\1\ EOs with both historical (H) rank and C (fair) quality ranks were ranked as C prior to becoming H.
\2\ Acreages are approximate, are based on a geospatial layer when available, and on surveyor estimates when a
  geospatial estimate is not available (CNHP 2009, pp. 1-81). Methods for estimating acreage vary between
  surveys. Acres listed in parentheses are not included in the total based on their historical (H) or failed to
  find (F) ranks.


Distribution of Eriogonum pelinophilum habitat in Colorado with Element 
Occurrence (EO) Numbers and percent occupancy.

[[Page 49839]]


    The most recent rangewide E. pelinophilum population estimate for 
all 14 current sites is roughly 277,000 individuals across 582 occupied 
ac (233 ha). Roughly 46 percent of the acres are in private ownership 
(14 percent of the total acres have conservation easements), and 54 
percent of the acres are managed by either the BLM or the CNAP (CNHP 
2009, pp. 1-81; Service 2009a, Table 1). The difference between 
rangewide population estimates from the 2006 petition and those in 2009 
are largely attributable to surveys that occurred in 2007 near Fairview 
South (EO 018), where increased survey efforts greatly expanded the 
known locations of E. pelinophilum as well as the number of individuals 
(an increase from roughly 30,000 to 250,000 individuals) (CNHP 2009, EO 
18; Ferguson 2007, pp. 2 and 4). Survey intensity has not been 
consistent in the different EOs.
    We are aware of two additional populations of Eriogonum 
pelinophilum that are not incorporated into the CNHP database and, 
based on appropriate separation distances, would comprise two new EOs 
(Table 1). Although not yet numbered or named by CNHP, we now refer to 
these sites as Peach Valley North and Loutsenhizer Canal (Table 1). 
Peach Valley North has fewer than 100 plants and the Loutsenhizer Canal 
site has an estimated 500 plants (BIO-Logic Environmental 2004, Site 
219 p. 7 and spatial data; BIO-Logic Inc. 2008, Figure 2 and spatial 
data; Boyle 2009, in litt., p. 1). We have a short report in our files 
(Reveal 2006, p. 2) with a map portraying seven extirpated E. 
pelinophilum locations. These locations are not included in the CNAP's 
database. We do not have any information on how these extirpations

[[Page 49840]]

were determined, their exact locations, if they were portions of other 
EOs, or how many plants were lost; therefore, they are not included in 
our assessment of populations (Table 1).
    Of the 14 occupied Eriogonum pelinophilum sites, 4 occur wholly on 
private land; 6 occur on a combination of BLM and private land; 1 
occurs on a combination of BLM, Colorado State (CNAP), and private 
land; and 3 occur wholly on BLM land (Table 1). Sites on Federal lands 
are afforded the protections of section 7 of the Act. In addition, four 
EOs have special land designations that provide some additional level 
of protection: (1) The majority of Lawhead Gulch is protected through a 
conservation easement held by the Black Canyon Land Trust, as well as 
being within the existing critical habitat designation; (2) a portion 
of the North Selig Canal is protected through a conservation easement 
held by the Black Canyon Land Trust; (3) roughly half of North Fairview 
is protected as a BLM Area of Critical Environmental Concern (ACEC), 
and as a Colorado Natural Area, which was fenced in 2008; and (4) 
Wacker Ranch/Fairview South is partially protected through a BLM 
designated ACEC, the CNAP (both at the Fairview South ACEC and Wacker 
Ranch), and The Nature Conservancy at Wacker Ranch.
    Each of these special designations protects Eriogonum pelinophilum 
differently. Easements held by the Black Canyon Land Trust provide 
permanent protection for Eriogonum pelinophilum, are not actively 
managed, and have not yet been surveyed for E. pelinophilum, although 
the presence of the plant has been confirmed on all easements (B. 
Hawke, Executive Director, Black Canyon Land Trust, in litt. 2008, pp. 
1-2). The BLM's Fairview ACECs, both north and south, were designated 
to manage and protect E. pelinophilum (Ferguson 2006, in litt. pp. 1-
6). The Fairview North ACEC has been fenced and livestock use has been 
halted, whereas the Fairview South ACEC is not fenced and receives 
livestock use. Both Fairview ACECs also are designated as Colorado 
Natural Areas. The CNAP has provided qualitative monitoring, 
quantitative monitoring, and management recommendations at both ACECs 
(Kurzel 2008, in litt. pp. 1-4). Wacker Ranch was acquired through a 
U.S. Fish and Wildlife Recovery Land Acquisition Grant in 2007 to 
protect E. pelinophilum (McGillivary 2007, in litt. p. 1). The property 
is owned by the Colorado Division of Parks and Outdoor Recreation 
(CNAP), is a Colorado Natural Area, and is managed by The Nature 
Conservancy (Colorado Division of Parks and Outdoor Recreation and The 
Nature Conservancy 2007, pp. 1-5). A formal management plan has been 
completed and nonnative weed control, qualitative and quantitative 
monitoring, as well as public outreach are ongoing for this property 
(Kurzel 2008, in litt. pp. 1-4).

Critical Habitat

Current Critical Habitat Designation

    At the time we designated critical habitat, the designation 
represented the entire known range of the species. The rule designating 
critical habitat included as the primary constituent elements those 
factors associated with the whitish alkaline clay soils within the 
sparsely vegetated badlands of Mancos shale. The existing critical 
habitat for E. pelinophilum, as designated in 1984, encompasses 119.8 
ac (48.5 ha) and one population (Lawhead Gulch, EO 001,50 CFR 
17.96(a)). Within that designation, approximately 65 ac (26 ha) of 
habitat remains occupied containing approximately 2,000 individual 
plants. The current critical habitat designation for E. pelinophilum 
includes approximately 65 of 582 ac (26 of 233 ha) of currently 
occupied habitat (11 percent), and 2,000 of 276,000 individuals (0.7 
percent) (Service 2009, Table 1). E. pelinophilum has special 
protections in portions of 4 of 20 extant EOs.


    Critical habitat is defined in section 3(5)(A) of the Act as:
    (i) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (I) essential to the conservation of the species and
    (II) which may require special management considerations or 
protection; and
    (ii) specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means the use 
of all methods and procedures that are necessary to bring any 
endangered or threatened species to the point at which the measures 
provided under the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, or 
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against Federal agencies carrying out, funding, 
or authorizing the destruction or adverse modification of critical 
habitat. Section 7(a)(2) of the Act requires consultation on Federal 
actions that may affect critical habitat. The designation of critical 
habitat does not affect land ownership or establish a refuge, 
wilderness, reserve, preserve, or other conservation area. Such 
designation does not allow the government or public to access private 
lands. Such designation does not require implementation of restoration, 
recovery, or enhancement measures by private landowners. Where a 
landowner requests Federal agency funding or authorization for an 
action that may affect a listed species or critical habitat, the 
consultation requirements of section 7(a)(2) would apply, but even in 
the event of a destruction or adverse modification finding, the 
landowner's obligation is not to restore or recover the species, but to 
implement reasonable and prudent alternatives to avoid destruction or 
adverse modification of critical habitat.
    For inclusion in a critical habitat designation, habitat within the 
geographical area occupied by the species must contain the physical and 
biological features essential to the conservation of the species, and 
be included only if those features may require special management 
considerations or protection. Critical habitat designations identify, 
to the extent known using the best scientific and commercial data 
available, habitat areas containing the essential physical and 
biological features essential to the conservation of the species. The 
essential features consist of the primary constituent elements (PCEs) 
in the appropriate quantity and spatial arrangement that provide for 
requisite life cycle needs of the species. Under the Act and 
regulations at 50 CFR 424.12, we can designate critical habitat in 
areas outside the geographical area occupied by the species at the time 
it is listed only when we determine that those areas are essential for 
the conservation of the species and that designation limited to those 
areas occupied at the time of listing would be inadequate to ensure the 
conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Act

[[Page 49841]]

(published in the Federal Register on July 1, 1994 (59 FR 34271)), the 
Information Quality Act (section 515 of the Treasury and General 
Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; 
H.R. 5658)), and our associated Information Quality Guidelines, provide 
criteria, establish procedures, and provide guidance to ensure that our 
decisions are based on the best scientific data available. They require 
our biologists, to the extent consistent with the Act and with the use 
of the best scientific data available, to use primary and original 
sources of information as the basis for recommendations to designate 
critical habitat.

12-Month Finding

    Section 4(b)(3)(D)(ii) of the Act requires that if we find that a 
revision to critical habitate should be made, then we are to indicate 
how we intend to proceed with such revision and promptly publish a 
notice of our intention. We have reviewed the best available scientific 
and commercial information available, and we find that revisions to 
critical habitat for E. pelinophilum under the Act should be made. 
However, we have determined that the development of a revised critical 
habitat designation for the species is currently precluded by higher 
priority listing and critical habitat determinations. The resources 
available for listing actions, including critical habitat designations 
and revisions, are determined through the annual Congressional 
appropriations process. We cannot spend more than is appropriated for 
the Listing Program without violating the Anti-Deficiency Act (see 31 
U.S.C. 1341(a)(1)(A)). Recognizing that designation of critical habitat 
for species already listed would consume most of the overall Listing 
Program appropriation, Congress also put a critical habitat subcap in 
place in FY 2002 and has retained it each subsequent year. In FY 2002 
and each year until FY 2006, the Service has had to use virtually the 
entire critical habitat subcap to address court-mandated designations 
of critical habitat, and consequently none of the critical habitat 
subcap funds have been available for other listing activities. In FY 
2007, we were able to use some of the critical habitat subcap funds to 
fund proposed listing determinations for high-priority candidate 
species. While we were unable to use any of the critical habitat subcap 
funds to fund proposed listing determinations in FY 2008, we did use a 
portion of this money to fund the critical habitat portion of some 
proposed listing determinations. In those cases, this allowed combining 
the proposed listing determination and proposed critical habitat 
designation into one rule, thereby increasing efficiency. In FY 2009, 
we have been able to continue this practise. However, our current 
projection for FY 2010 is that all of the funding anticipated for the 
critical habitat portion of the listing allocation will be used to 
address court-ordered critical habitat designations. As such, we do not 
anticipate having funding available to work on non-court-ordered 
actions in FY 2010.
    Thus, through the critical habitat subcap, and the amount of funds 
needed to address court-mandated critical habitat designations, 
Congress and the courts have in effect determined the amount of money 
available for critical habitat revisions. Therefore, the funds in the 
critical habitat subcap, other than those needed to address court-
mandated critical habitat for already listed species, set the limits on 
revisions to critical habitat.
    We have endeavored to make our critical habitat designation and 
revision actions as efficient and timely as possible, given the 
requirements of the relevant law and regulations, and constraints 
relating to workload and personnel. We are continually considering ways 
to streamline processes or achieve economies of scale, such as by 
batching related actions together.
    While we are not proposing to revise critical habitat at this time, 
we have considered whether the physical and biological features 
essential to the conservation of the species identified in the previous 
designation are still appropriate for this species. The original 
critical habitat designation included only the alkaline clay soils as a 
primary constituent element, and therefore the feature essential to the 
conservation of the species. Appropriate native vegetation and features 
that allow for dispersal were not included. Based on the biology of the 
species, we intend to revise the PCEs, and therefore the essential 
features, in order to address the following needs of the species: 
appropriate native vegetation, appropriate soils, and features that 
allow for dispersal within units. Such features may include suitable 
habitat for pollinators, appropriate slopes, depressions, rivulets, and 
sites where snow banks linger. We find that incorporating these 
concepts into the revised critical habitat designation for Eriogonum 
pelinophilum is important for identifying the specific areas essential 
to the conservation of the species. We are soliciting any additional 
information or input on these potential PCEs and essential features.

How the Service Intends To Proceed

    We intend to undertake rulemaking to revise critical habitat for 
Eriogonum pelinophilum when funding and staff resources become 
available. Based on the best available science, including the status 
review, we will take the following steps to propose the revision of 
designated critical habitat for Eriogonum pelinophilum: (1) Determine 
the geographical area occupied by the species at the time of listing; 
(2) identify the physical or biological features essential to the 
conservation of the species; (3) delineate areas within the 
geographical area occupied by the species that contain these features, 
and which may require special management considerations or protections; 
(4) delineate any areas outside of the geographical area occupied by 
the species that are essential for the conservation of the species; (5) 
conduct appropriate analyses under section 4(b)(2) of the Act; and (6) 
invite the public to review and provide comments on the proposed 
revision through a public comment period.
    We intend that any revisions to critical habitat for E. 
pelinophilum be as accurate as possible. Therefore, we will continue to 
accept additional information and comments from all concerned 
governmental agencies, the scientific community, industry, or any other 
interested party concerning this finding.

Current Designation and Protections

    Until we are able to revise the critical habitat designation for 
Eriogonum pelinophilum, areas that support populations but are outside 
the critical habitat designation will continue to be subject to 
conservation actions implemented under section 7(a)(1) of the Act. 
Federal agency actions are subject to the regulatory protections 
afforded by section 7(a)(2), as determined on the basis of the best 
available scientific information at the time of the action. 
Approximately a third of the areas currently known to be occupied by 
the species are on private land outside of the current designation. We 
expect occasional projects on private land to involve a Federal nexus, 
in which case protections under section 7(a)(2) would also apply. Where 
a landowner requests Federal agency funding or authorization (i.e., 
Federal nexus) for an action that may affect a listed species or 
critical habitat, the consultation requirements of section 7(a)(2) 
would apply.

[[Page 49842]]

    Federally funded or permitted projects affecting listed species 
outside their designated critical habitat areas may still result in 
jeopardy findings in some cases. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans, or other species 
conservation planning efforts if new information available to these 
planning efforts calls for a different outcome. Section 7(a)(2) of the 
Act requires Federal agencies, including the Service, to ensure that 
actions they fund, authorize, or carry out are not likely to destroy or 
adversely modify critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
(action agency) must enter into consultation with us. As a result of 
this consultation, we document compliance with the requirements of 
section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify critical habitat, we also provide 
reasonable and prudent alternatives to the project, if any are 
identifiable. We define ``Reasonable and prudent alternatives'' at 50 
CFR 402.02 as alternative actions identified during consultation that:
     Can be implemented in a manner consistent with the 
intended purpose of the action,
     Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction,
     Are economically and technologically feasible, and
     Would, in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or destroying or adversely 
modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies may sometimes need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

References Cited

    A complete list of all references cited in this document is 
available, upon request, from the Western Colorado Ecological Services 


    The primary authors of this notice are the staff members of the 
Western Colorado Ecological Services Office (see FOR FURTHER 


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

    Dated: September 16, 2009.
Thomas L. Strickland
Assistant Secretary for Fish and Wildlife and Parks
[FR Doc. E9-23155 Filed 9-28- 09; 8:45 am]