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the Internet and will be publicly Drive, Building B, Grand Junction, CO habitat for the species. Potential threats available only in hard copy form. 81506-3946, by telephone at 970-243- discussed in the petition include Publicly available docket materials are 2778; or by facsimile at 970-245-6933. destruction and modification of habitat, available either electronically in http:// FOR FURTHER INFORMATION CONTACT: herbivory, and inadequate regulatory www.regulations.gov or in hard copy Patty Gelatt, Acting Western Colorado mechanisms. during normal business hours at the Air Supervisor, Fish and Wildlife Service, On September 29, 2006, we Protection Division, U.S. Environmental Western Colorado Ecological Services acknowledged the receipt of the petition Protection Agency, Region III, 1650 Office, 764 Horizon Drive, Building B, but stated that given staff and budget Arch Street, Philadelphia, Pennsylvania Grand Junction, CO 81506-3946, by limitations we could not work on the 19103. telephone at 970-243-2778; or by administrative finding at that time FOR FURTHER INFORMATION CONTACT: facsimile at 970-245-6933. Persons who (Service 2006, in litt.). On November 13, Jacqueline Lewis, (215) 814–2037, or by use a telecommunications device for the 2006, we received a letter dated e-mail at [email protected]. deaf (TDD) may call the Federal November 9, 2006, from the petitioners Information Relay Service (FIRS) at 800- notifying us of their 60–day intent to Dated: September 18, 2009. 877-8339. Please include ‘‘ sue for our failure to make a 90–day William C. Early, pelinophilum scientific information’’ in finding for Eriogonum pelinophilum Acting Regional Administrator, Region III. the subject line for faxes and emails. (Center for Native Ecosystems 2006, in [FR Doc. E9–23502 Filed 9–28–09; 8:45 am] SUPPLEMENTARY INFORMATION: Section litt.). On March 3, 2008, the petitioners BILLING CODE 6560–50–P 4(b)(3)(D)(ii) of the Act (16 U.S.C. 1531 filed suit with the United States District et seq.) requires that, for any petition Court for the District of Colorado for our containing substantial scientific and failure to make a 90–day finding for the DEPARTMENT OF THE INTERIOR commercial information that indicates species (Center for Native Ecosystems revisions to critical habitat may be 2008). On September 25, 2008, a Fish and Wildlife Service warranted, we make a finding within 12 settlement agreement was reached months of the date of receipt of the whereby the Service agreed to submit a 50 CFR Part 17 petition and publish a notice in the 90–day finding to the Federal Register by June 15, 2009, and, if the petition [Docket No. FWS-R6-ES-2009-0037] Federal Register indicating how we intend to proceed with the requested was considered substantial, submit a [92210-1117-0000-B4] revision. 12–month finding to the Federal Register by September 21, 2009 (U.S. Endangered and Threatened Wildlife Background Department of Justice 2008). This 12– and ; 12–month Finding on a Previous Federal Actions month finding evaluates the status of Petition To Revise Critical Habitat for existing critical habitat as stipulated in Eriogonum pelinophilum (Clay-Loving We proposed to list Eriogonum the settlement. Wild Buckwheat) pelinophilum as an endangered species We published our 90–day finding in 1983, and we proposed critical AGENCY: regarding the petition to revise critical Fish and Wildlife Service, habitat at the same time (48 FR 28504; Interior. habitat for Eriogonum pelinophilum on June 22, 1983). We published the final June 22, 2009 (74 FR 29456). We ACTION: Notice of 12–month petition rule designating the species as determined the petition presented finding. endangered in 1984, along with a final substantial information indicating that critical habitat designation (49 FR SUMMARY: We, the U.S. Fish and revising critical habitat for E. 28562; July 13, 1984). Critical habitat, as Wildlife Service (Service), announce our pelinophilum under the Act may be designated in 1984, encompassed 119.8 12–month finding on a petition to revise warranted, thus initiating this 12–month acres (ac) (48.5 hectares (ha)), which critical habitat for Eriogonum finding (74 FR 29456; June 22, 2009). was then the entire known range of the pelinophilum (clay-loving wild We have fully considered all species (49 FR 28562; July 13, 1984). buckwheat) under the Endangered information received in response to On July 24, 2006, we received a information requested in our 90–day Species Act of 1973, as amended (Act). petition dated July 17, 2006, from the After a thorough review of all available finding. Center for Native Ecosystems, the This 12–month finding discusses only scientific and commercial information, Colorado Native Society, and the we find that revisions to critical habitat those topics directly relevant to the Uncompahgre Valley Association revisions of existing critical habitat for for E. pelinophilum are warranted but (collectively referred to here as the precluded by other priorities. Given this Eriogonum pelinophilum. We also are in petitioners) requesting that we amend the process of preparing a 5–year review finding, we intend to initiate the critical habitat designation for rulemaking when we complete the for E. pelinophilum where we are Eriogonum pelinophilum (Center for conducting a more thorough review of higher priorities and we have the Native Ecosystems et al. 2006, p. 1). The necessary resources to do so. the species’ status (73 FR 58261; petition clearly identified itself as a October 6, 2008). DATES: The finding announced in this petition and included the requisite document was made on September 29, identification information that 50 CFR Species Information 2009. 424.14(a) requires. The petition Eriogonum pelinophilum was first ADDRESSES: This finding is available on contained a species and habitat collected near Hotchkiss, Colorado, in the Internet at http:// description for E. pelinophilum, a Delta County in 1958 (Reveal 2006, p. www.regulations.gov. Supporting description of previous Federal actions, 1). The species was first recognized as documentation we used to prepare this a section addressing statutory its own taxon in 1969, and officially finding is available for public requirements for E. pelinophilum, a described in 1973 (Reveal 1969, pp. 75- inspection, by appointment during description of the various populations 76; 1973, pp. 120-122). No other normal business hours at the U.S. Fish and their status, a section addressing locations were identified until 1984 and Wildlife Service, Western Colorado threats to E. pelinophilum, and (Colorado Natural Areas Program Ecological Services Office, 764 Horizon recommendations regarding critical (CNAP) 1986, p. 1).

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Eriogonum pelinophilum is a low distances (Carpenter and Schultz 1994, currently recognized as distinct (Reveal growing, rounded, densely branched pp. 3-4). When five of the six transects 2005b, p. 1; J. Kartesz, Biota of North subshrub in the buckwheat family were revisited in 2008, 67 percent America Project 2009, in litt., p. 1). The (). It has dark green remained alive after 18 years, further most recent assessment indicates that inrolled leaves that appear needlelike, supporting the idea that the plant is preliminary genetic analyses show that and clusters of white to cream colored long-lived (Lyon 2008, p. 2). In addition E. pelinophilum is allied to, but distinct flowers with greenish-red to brownish- to the 181 tagged plants, at least 321 from E. clavellatum, and both are red bases and veins at the end of the new plants were located along the 5 distinct from E. contortum (Reveal 2006, branches. relocated transects (Lyon 2008, p. 2). p. 3). Morphological and distributional The life history of Eriogonum Results were not statistically adequate differences also occur between E. pelinophilum has been examined in two to detect a change in species abundance pelinophilum, E. contortum, and E. short-term demography studies that (Lyon 2008, p. 3), but do suggest that the clavellatum. E. pelinophilum has white track a plant population’s change in size species may be stable or increasing at flowers and occurs in Delta and and structure through time. The first the Wacker Ranch site. Montrose Counties, Colorado, whereas study was conducted on Bureau of Land Eriogonum pelinophilum requires a E. contortum has yellow flowers and Management (BLM) lands at the pollinator, and for much of the occurs farther north in Mesa and Fairview Research Natural Area in 1987 flowering season is the most abundant Garfield Counties, Colorado, and Grand and 1988 (CNAP 1986; 1987). The species in bloom in its habitat (Bowlin County, Utah (Spackman et al. 1997, E. second study was conducted at the et al. 1992, p. 300). Flowering typically pelinophilum page). E. pelinophilum is Wacker Ranch where life history occurs from late May to early September shorter, measuring 2 to 4 inches (in.) information was gathered in 1990, 1992, with individual flowers lasting fewer (0.5 to 1 decimeters (dm)), has smaller 1993, and 1994 (Carpenter and Schulz than 3 days (Bowlin et al. 1992, p. 298). involucres (bracts below the flowers - 1994), and again in 2008 (Lyon 2008). Over 50 species of insects visit E. 0.12 to 0.14 in. [3 to 3.5 millimeters Neither of these studies occurred over pelinophilum flowers (Bowlin et al. (mm)] long), with petals all the same sufficient time periods nor were they 1992, pp. 299-300). Roughly half of length. E. clavellatum is taller conducted frequently enough to these 50 species are native bees and 18 measuring 4 to 8 in. (1 to 2 dm), has calculate critical life history stages for E. species are native (Bowlin et al. larger involucres (0.16 to 0.18 in. [4 to pelinophilum’s success. In addition, 1992, pp. 299-300). Seed set is similar 4.5 mm] long), with two different sized neither study has enough demographic between plants that were pollinated by petals, and is only known from detail to assist in the development of a ants versus flying pollinators, suggesting Montezuma County, Colorado and population viability model. However, the importance of ants to of adjacent San Juan Counties in Utah and both studies do add to our the species (Bowlin et al. 1992, p. 299). New Mexico (Spackman et al. 1997, E. understanding of the species’ longevity, Harvester ants remove some fruits pelinophilum page; Reveal 2005c, p. 1). habitat, and site differences, as (Bowlin et al. 1992, p. 299); however, no described in the following two information is available for the species Habitat Information paragraphs. on seed dispersal mechanisms. Eriogonum pelinophilum is endemic The CNAP life history study for Eriogonum pelinophilum plants have to the rolling clay (adobe) hills and flats Eriogonum pelinophilum established been found to be smaller at disturbed immediately adjacent to the four permanent monitoring plots, two sites but the number, richness, diversity, communities of Delta and Montrose, plots at Fairview North and two plots 4 or equitability of pollinators was not Colorado. The plants extend from near miles (mi) (6 kilometers (km)) south at significantly different between Lazear, east of Delta on the northern end Fairview South, and tagged 220 plants disturbed and undisturbed sites of the species’ range, to the southeastern (CNAP 1987, p. 1). Significant (Tepedino 2009, p. 38). Of all edge of Montrose in Delta and Montrose differences in aerial cover, flowering Eriogonum species studied to date, none Counties, Colorado, and occur from rate, and vigor of E. pelinophilum has as many pollinators as E. 5,180 to 6,350 feet (1,579 to 1,965 between plots (CNAP 1987, p. 3) suggest pelinophilum (Tepedino 2009, p. 39). meters) in elevation (Colorado Natural site characteristics may influence plant These pollinators cover a wide array of Heritage Program (CNHP) 2006, p. 3; characteristics such as abundance and taxonomic and functional types of Nature Serve 2008, pp. 4-5; CNHP 2009, size. (black sagebrush) insects that visit the flowers for nectar spatial data; Service 2009a, Table 1). E. was the dominant species by basal area and pollen (Tepedino 2009, pp. 38-39). pelinophilum is known from an area in most plots, but E. pelinophilum had No single pollinator or group of measuring roughly 11.5 mi (18.5 km) the greatest density and frequency pollinators appears particularly from east to west and 28.5 mi (45.6 km) (CNAP 1987, p. 8). E. pelinophilum important for E. pelinophilum from north to south (CNHP 2009, spatial occurred in the highest densities away pollination (Tepedino 2009, pp. 38-39, data). The Delta/Montrose area is dry, from other (CNAP 1987, p. 8). Appendix A). Therefore, preservation of receiving an average of 8 to 9 in. (20 to Mortality from 1990 to 1994 averaged specific pollinators is not a significant 23 centimeters (cm)) of precipitation a 6.0 percent at six permanent Eriogonum concern in conservation of the species year (Western Regional Climate Center pelinophilum transects at the Wacker (Tepedino 2009, p. 38). Conservation of 2009a, p. 1; 2009b, p. 1). Winters are Ranch site but varied from 1.2 to 26.1 E. pelinophilum should focus primarily cold, with January being the coldest percent and was spread across age on the conservation of undisturbed month, averaging 12 to 39 degrees classes (Carpenter and Schultz 1994, p. habitat and associated plant species in Fahrenheit (-11 to 4 degrees Celsius). 3). Observed growth rates and the as many separate areas as possible to Summers are hot, with July being the number of seedlings observed varied manage for the wide array of pollinators hottest month, averaging 55 to 93 considerably by transect (Carpenter and (Tepedino 2009, p. 40). degrees Fahrenheit (13 to 34 degrees Schultz 1994, p. 3). This information Eriogonum pelinophilum is Celsius) (Western Regional Climate supports the conclusion that E. considered a close relative or Center 2009a, p. 1; 2009b, p. 1). pelinophilum is very long-lived and that synonymous with E. clavellatum and a The soils where Eriogonum environmental conditions vary close relative of E. contortum (Reveal pelinophilum are found are whitish, considerably over relatively short 2006, p. 3). All three species are alkaline (with a pH over 7), clay soils of

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the Mancos shale formation, a known locations by 33 feet (10 meters). characterized by low species diversity, marine sediment formation. We employed this buffer so that E. low productivity, and minimal canopy Mancos shale outcrops are relatively pelinophilum sites represented by a cover (NatureServe 2008, p. 4). The barren of vegetation in comparison to point would more accurately represent associated vegetation is sparse, with E. surrounding areas (Potter et al. 1985, p. the plant habitat where those points are pelinophilum generally one of the 137). Several components of the clay located (Service 2009b, p. 1). For this dominant species (CNAP 1987, Table 2). soils of the Mancos shale limit plant reason, acreage figures differ In lower elevations near Delta, the growth: soils are fine-textured and lose significantly from those listed in the dominant plant species is Atriplex moisture more readily; clay soils are ‘‘Population Status’’ section below. corrugata (mat saltbrush) but at higher compactable which limits gas exchange The Paonia and Ridgeway soil surveys elevations near Montrose the dominant and thus growth; and clay soils differ in their naming and definitions of plant species is Artemesia nova (black hold more water which is unavailable the various soil units, making the data sagebrush), although A. corrugata is still for plant use because water infiltration analysis inconsistent between the two abundant (Southwest Regional Gap surveys. Data was not available for 9 is slower than other soil types, and the Analysis Project 2004, spatial data). percent (96 ac (39 ha)) of habitat extreme swelling and shrinking of the Other associated species include occupied by E. pelinophilum. Given soils limits water availability and Atriplex confertifolia (shadscale), oxygen exchange for plant (Potter these shortcomings, we found the Atriplex gardneri (Gardner’s saltbush), et al. 1985, p. 139). In addition, the soils following five soils were most common Picrothamnus desertorum (formerly are calcareous (containing calcium within the 1,129 ac (457 ha) of occupied Artemisia spinescens) (bud sagebrush), carbonate). habitat of E. pelinophilum: 1) typic The U. S. Geological Survey is torriorthents (both 10- to 25-percent Xylorhiza venusta (charming researching the Mancos shale soils slopes, and –Badland complex with 25- woodyaster), and another local endemic occupied by Eriogonum pelinophilum at to 75-percent slopes) comprised roughly Penstemon retrorsus (Adobe Hills the Gunnison Gorge National 35 percent (390 ac (158 ha)); 2) ellaybee- beardtongue) (CNAP 1987, Table 2; Conservation Area (GGNCA). persayo silty clay loams (5- to 12- Coles 2006, p. 1; NatureServe 2008, p. Preliminary results suggest that E. percent slopes) comprised roughly 26 4). pelinophilum is associated with silty percent (294 ac (119 ha)); 3) killpack Population Status clay and silty clay loam soils that can silty clay loam (3- to 12-percent slopes) be classified as normal or saline-sodic in comprised roughly 7 percent (84 ac (34 Based on information provided by the relation to pH, electrical conductivity, ha)); 4) chipeta silty clay (3- to 30- CNHP in January 2009, 20 Eriogonum and sodium adsorption ratio (SAR) of percent slopes) comprised 7 percent (77 pelinophilum Element Occurrences saturated soil paste extracts (Grauch ac (31 ha)); and 5) Montrose-Delta (EOs) are currently known (CNHP 2009, 2009, in litt., p. 1). The principal complex (0- to 2-percent slopes) pp. 1-81; Service 2009a, Table 1). The difference between occupied and comprised 6 percent (64 ac (26 ha)). Soil EOs are utilized by Natural Heritage unoccupied soils is that the occupied types are described as erosion remnants Programs to track rare species and are soils have fairly constant SAR values weathered from calcareous shale and are defined as an area where a species is or with depth while unoccupied soils have highly erodible by water (Soil was present. For E. pelinophilum, EOs more variable SAR values. Electrical Conservation Service 1981, pp. 24 and are comprised of one to many polygons conductivity values of the saturated soil 39; NRCS 2006b, map unit (sites) based on a standardized paste extracts have a similar pattern of descriptions). Several other soil types maximum separation distance, in this variation with depth (R. Grauch, in litt. occurred within occupied habitat, but case 1.2 mi (2 km) across suitable 2009, p. 1). A subsequent study none comprised over 3 percent or 30 ac habitat and 0.6 mi (1 km) across comparing the soil samples collected in (12 ha). the study above to soil samples across Eriogonum pelinophilum plants are unsuitable habitat (CNHP 2007, p. 1). the Mancos shale terrain of the GGNCA generally found within swales or However, upon closer examination, we is underway and expected to be drainages where there is more moisture found that several EOs, as designated by available within the next 3 years. than surrounding areas. These swales CNHP, were within 0.6 mi (1 km) of one Soils appear to play a large role in the are generally located in low-lying areas another. For the purpose of this distribution of Eriogonum with rolling topography. Steeper, more discussion, we have left the EOs as pelinophilum. Therefore, we conducted barren slopes within the Mancos shale designated by CNHP. Of these 20 EOs, a geospatial analysis using Natural habitats, but with more toxic soils for 7 have not been relocated in over 20 Resources Conservation Service (NRCS) plant life, exist upslope of where the years and are considered historical. A soil layers (Paonia and Ridgeway soil plants occur, generally within 1 mi (1.6 survey was conducted at an additional surveys - NRCS 2006a, metadata; 2008, km). E. pelinophilum plants at lower EO where no plants were relocated metadata) to better understand the elevation sites near Delta were (CNHP 2009, pp. 1-81; Service 2009a, distribution of E. pelinophilum. The associated with small areas where snow Table 1). Table 1 is provided below to analysis overlaid soil types with the lingers longer than surrounding areas portray the EOs and their land distribution of E. pelinophilum in an because of their north- and east-facing management or ownership status. Figure effort to determine which soil types aspects (Ewing and Glenne 2009, p. 2). 1 shows the distribution of E. were most common where the plants Plant communities associated with pelinophilum habitat in Colorado with occur. For this analysis, we buffered all Eriogonum pelinophilum are EO Numbers and percent occupancy.

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TABLE 1. THE COLORADO NATURAL HERITAGE PROGRAM Eriogonum pelinophilum EOS. The EO ranks A, B, C, and D represent the quality of the EO (from best to worst quality, respectively), H indicates an EO has not been visited in over 20 years, and F indicates an EO that could not be relocated upon subsequent visit.

Land Management EO Number EO Rank1 2 Acreage Population Name with Rough Estimates of Ownership Percentage

001 Lawhead Gulch private

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

004 B 17 Olathe South private

006 B 15 North Mesa private

007 H, C Peach Valley private

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

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

013 H, C (4) Cedar Creek private

014 A 7 Candy Lane/Peach Valley BLM

015 F (70) Selig Canal 3 private

016 C 13 Dry Cedar Creek BLM

017 H, C (20) Oak Grove Road private

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

019 H (2) Star Nelson Airport private

021 H, C (26) Montrose East private

022 H, C (19) Montrose East private

023 H Hotchkiss unknown

024 D 8 Montrose Northeast private

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

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

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

none none 2 Loutsenhizer Canal BLM 1 EOs with both historical (H) rank and C (fair) quality ranks were ranked as C prior to becoming H. 2 Acreages are approximate, are based on a geospatial layer when available, and on surveyor estimates when a geospatial estimate is not available (CNHP 2009, pp. 1-81). Methods for estimating acreage vary between surveys. Acres listed in parentheses are not included in the total based on their historical (H) or failed to find (F) ranks.

BILLING CODE 4310–55–S Distribution of Eriogonum pelinophilum habitat in Colorado with Element Occurrence (EO) Numbers and percent occupancy.

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BILLING CODE 4310–55–C (EO 018), where increased survey efforts now refer to these sites as Peach Valley The most recent rangewide E. greatly expanded the known locations of North and Loutsenhizer Canal (Table 1). pelinophilum population estimate for E. pelinophilum as well as the number Peach Valley North has fewer than 100 all 14 current sites is roughly 277,000 of individuals (an increase from roughly plants and the Loutsenhizer Canal site individuals across 582 occupied ac (233 30,000 to 250,000 individuals) (CNHP ha). Roughly 46 percent of the acres are has an estimated 500 plants (BIO-Logic 2009, EO 18; Ferguson 2007, pp. 2 and in private ownership (14 percent of the Environmental 2004, Site 219 p. 7 and 4). Survey intensity has not been total acres have conservation spatial data; BIO-Logic Inc. 2008, Figure easements), and 54 percent of the acres consistent in the different EOs. 2 and spatial data; Boyle 2009, in litt., are managed by either the BLM or the We are aware of two additional p. 1). We have a short report in our files CNAP (CNHP 2009, pp. 1-81; Service populations of Eriogonum pelinophilum (Reveal 2006, p. 2) with a map 2009a, Table 1). The difference between that are not incorporated into the CNHP portraying seven extirpated E. rangewide population estimates from database and, based on appropriate pelinophilum locations. These locations the 2006 petition and those in 2009 are separation distances, would comprise are not included in the CNAP’s largely attributable to surveys that two new EOs (Table 1). Although not database. We do not have any occurred in 2007 near Fairview South yet numbered or named by CNHP, we information on how these extirpations

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were determined, their exact locations, of Parks and Outdoor Recreation and research, census, law enforcement, if they were portions of other EOs, or The Nature Conservancy 2007, pp. 1-5). habitat acquisition and maintenance, how many plants were lost; therefore, A formal management plan has been propagation, or transplantation. they are not included in our assessment completed and nonnative weed control, Critical habitat receives protection of populations (Table 1). qualitative and quantitative monitoring, under section 7 of the Act through the Of the 14 occupied Eriogonum as well as public outreach are ongoing prohibition against Federal agencies pelinophilum sites, 4 occur wholly on for this property (Kurzel 2008, in litt. carrying out, funding, or authorizing the private land; 6 occur on a combination pp. 1-4). destruction or adverse modification of of BLM and private land; 1 occurs on a critical habitat. Section 7(a)(2) of the Act combination of BLM, Colorado State Critical Habitat requires consultation on Federal actions (CNAP), and private land; and 3 occur Current Critical Habitat Designation that may affect critical habitat. The wholly on BLM land (Table 1). Sites on designation of critical habitat does not Federal lands are afforded the At the time we designated critical affect land ownership or establish a protections of section 7 of the Act. In habitat, the designation represented the refuge, wilderness, reserve, preserve, or addition, four EOs have special land entire known range of the species. The other conservation area. Such designations that provide some rule designating critical habitat designation does not allow the additional level of protection: (1) The included as the primary constituent government or public to access private majority of Lawhead Gulch is protected elements those factors associated with lands. Such designation does not through a conservation easement held the whitish alkaline clay soils within require implementation of restoration, by the Black Canyon Land Trust, as well the sparsely vegetated badlands of recovery, or enhancement measures by as being within the existing critical Mancos shale. The existing critical private landowners. Where a landowner habitat designation; (2) a portion of the habitat for E. pelinophilum, as requests Federal agency funding or North Selig Canal is protected through designated in 1984, encompasses 119.8 authorization for an action that may a conservation easement held by the ac (48.5 ha) and one population affect a listed species or critical habitat, Black Canyon Land Trust; (3) roughly (Lawhead Gulch, EO 001,50 CFR the consultation requirements of section half of North Fairview is protected as a 17.96(a)). Within that designation, 7(a)(2) would apply, but even in the BLM Area of Critical Environmental approximately 65 ac (26 ha) of habitat event of a destruction or adverse Concern (ACEC), and as a Colorado remains occupied containing modification finding, the landowner’s Natural Area, which was fenced in approximately 2,000 individual plants. obligation is not to restore or recover the 2008; and (4) Wacker Ranch/Fairview The current critical habitat designation species, but to implement reasonable South is partially protected through a for E. pelinophilum includes and prudent alternatives to avoid BLM designated ACEC, the CNAP (both approximately 65 of 582 ac (26 of 233 destruction or adverse modification of at the Fairview South ACEC and Wacker ha) of currently occupied habitat (11 critical habitat. Ranch), and The Nature Conservancy at percent), and 2,000 of 276,000 For inclusion in a critical habitat Wacker Ranch. individuals (0.7 percent) (Service 2009, designation, habitat within the Each of these special designations Table 1). E. pelinophilum has special geographical area occupied by the protects Eriogonum pelinophilum protections in portions of 4 of 20 extant species must contain the physical and differently. Easements held by the Black EOs. biological features essential to the Canyon Land Trust provide permanent Background conservation of the species, and be protection for Eriogonum pelinophilum, included only if those features may are not actively managed, and have not Critical habitat is defined in section require special management yet been surveyed for E. pelinophilum, 3(5)(A) of the Act as: considerations or protection. Critical although the presence of the plant has (i) The specific areas within the habitat designations identify, to the been confirmed on all easements (B. geographical area occupied by the extent known using the best scientific Hawke, Executive Director, Black species, at the time it is listed in and commercial data available, habitat Canyon Land Trust, in litt. 2008, pp. 1- accordance with the Act, on which are areas containing the essential physical 2). The BLM’s Fairview ACECs, both found those physical or biological and biological features essential to the north and south, were designated to features conservation of the species. The manage and protect E. pelinophilum (I) essential to the conservation of the essential features consist of the primary (Ferguson 2006, in litt. pp. 1-6). The species and constituent elements (PCEs) in the Fairview North ACEC has been fenced (II) which may require special appropriate quantity and spatial and livestock use has been halted, management considerations or arrangement that provide for requisite whereas the Fairview South ACEC is not protection; and life cycle needs of the species. Under fenced and receives livestock use. Both (ii) specific areas outside the the Act and regulations at 50 CFR Fairview ACECs also are designated as geographical area occupied by the 424.12, we can designate critical habitat Colorado Natural Areas. The CNAP has species at the time it is listed, upon a in areas outside the geographical area provided qualitative monitoring, determination that such areas are occupied by the species at the time it is quantitative monitoring, and essential for the conservation of the listed only when we determine that management recommendations at both species. those areas are essential for the ACECs (Kurzel 2008, in litt. pp. 1-4). Conservation, as defined under conservation of the species and that Wacker Ranch was acquired through a section 3 of the Act, means the use of designation limited to those areas U.S. Fish and Wildlife Recovery Land all methods and procedures that are occupied at the time of listing would be Acquisition Grant in 2007 to protect E. necessary to bring any endangered or inadequate to ensure the conservation of pelinophilum (McGillivary 2007, in litt. threatened species to the point at which the species. p. 1). The property is owned by the the measures provided under the Act Section 4 of the Act requires that we Colorado Division of Parks and Outdoor are no longer necessary. Such methods designate critical habitat on the basis of Recreation (CNAP), is a Colorado and procedures include, but are not the best scientific and commercial data Natural Area, and is managed by The limited to, all activities associated with available. Further, our Policy on Nature Conservancy (Colorado Division scientific resources management such as Information Standards Under the Act

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(published in the Federal Register on those cases, this allowed combining the information or input on these potential July 1, 1994 (59 FR 34271)), the proposed listing determination and PCEs and essential features. Information Quality Act (section 515 of proposed critical habitat designation How the Service Intends To Proceed the Treasury and General Government into one rule, thereby increasing Appropriations Act for Fiscal Year 2001 efficiency. In FY 2009, we have been We intend to undertake rulemaking to (Pub. L. 106-554; H.R. 5658)), and our able to continue this practise. However, revise critical habitat for Eriogonum associated Information Quality our current projection for FY 2010 is pelinophilum when funding and staff Guidelines, provide criteria, establish that all of the funding anticipated for resources become available. Based on procedures, and provide guidance to the critical habitat portion of the listing the best available science, including the ensure that our decisions are based on allocation will be used to address court- status review, we will take the following the best scientific data available. They ordered critical habitat designations. As steps to propose the revision of require our biologists, to the extent such, we do not anticipate having designated critical habitat for consistent with the Act and with the use funding available to work on non-court- Eriogonum pelinophilum: (1) Determine of the best scientific data available, to ordered actions in FY 2010. the geographical area occupied by the use primary and original sources of Thus, through the critical habitat species at the time of listing; (2) identify information as the basis for subcap, and the amount of funds needed the physical or biological features recommendations to designate critical to address court-mandated critical essential to the conservation of the habitat. habitat designations, Congress and the species; (3) delineate areas within the 12-Month Finding courts have in effect determined the geographical area occupied by the amount of money available for critical species that contain these features, and Section 4(b)(3)(D)(ii) of the Act habitat revisions. Therefore, the funds which may require special management requires that if we find that a revision in the critical habitat subcap, other than considerations or protections; (4) to critical habitate should be made, then those needed to address court-mandated delineate any areas outside of the we are to indicate how we intend to critical habitat for already listed species, geographical area occupied by the proceed with such revision and set the limits on revisions to critical species that are essential for the promptly publish a notice of our habitat. conservation of the species; (5) conduct intention. We have reviewed the best appropriate analyses under section available scientific and commercial We have endeavored to make our 4(b)(2) of the Act; and (6) invite the information available, and we find that critical habitat designation and revision public to review and provide comments revisions to critical habitat for E. actions as efficient and timely as on the proposed revision through a pelinophilum under the Act should be possible, given the requirements of the public comment period. made. However, we have determined relevant law and regulations, and that the development of a revised constraints relating to workload and We intend that any revisions to critical habitat designation for the personnel. We are continually critical habitat for E. pelinophilum be as species is currently precluded by higher considering ways to streamline accurate as possible. Therefore, we will priority listing and critical habitat processes or achieve economies of scale, continue to accept additional determinations. The resources available such as by batching related actions information and comments from all for listing actions, including critical together. concerned governmental agencies, the habitat designations and revisions, are While we are not proposing to revise scientific community, industry, or any determined through the annual critical habitat at this time, we have other interested party concerning this Congressional appropriations process. considered whether the physical and finding. biological features essential to the We cannot spend more than is Current Designation and Protections appropriated for the Listing Program conservation of the species identified in without violating the Anti-Deficiency the previous designation are still Until we are able to revise the critical Act (see 31 U.S.C. 1341(a)(1)(A)). appropriate for this species. The original habitat designation for Eriogonum Recognizing that designation of critical critical habitat designation included pelinophilum, areas that support habitat for species already listed would only the alkaline clay soils as a primary populations but are outside the critical consume most of the overall Listing constituent element, and therefore the habitat designation will continue to be Program appropriation, Congress also feature essential to the conservation of subject to conservation actions put a critical habitat subcap in place in the species. Appropriate native implemented under section 7(a)(1) of FY 2002 and has retained it each vegetation and features that allow for the Act. Federal agency actions are subsequent year. In FY 2002 and each dispersal were not included. Based on subject to the regulatory protections year until FY 2006, the Service has had the biology of the species, we intend to afforded by section 7(a)(2), as to use virtually the entire critical habitat revise the PCEs, and therefore the determined on the basis of the best subcap to address court-mandated essential features, in order to address available scientific information at the designations of critical habitat, and the following needs of the species: time of the action. Approximately a consequently none of the critical habitat appropriate native vegetation, third of the areas currently known to be subcap funds have been available for appropriate soils, and features that occupied by the species are on private other listing activities. In FY 2007, we allow for dispersal within units. Such land outside of the current designation. were able to use some of the critical features may include suitable habitat for We expect occasional projects on habitat subcap funds to fund proposed pollinators, appropriate slopes, private land to involve a Federal nexus, listing determinations for high-priority depressions, rivulets, and sites where in which case protections under section candidate species. While we were snow banks linger. We find that 7(a)(2) would also apply. Where a unable to use any of the critical habitat incorporating these concepts into the landowner requests Federal agency subcap funds to fund proposed listing revised critical habitat designation for funding or authorization (i.e., Federal determinations in FY 2008, we did use Eriogonum pelinophilum is important nexus) for an action that may affect a a portion of this money to fund the for identifying the specific areas listed species or critical habitat, the critical habitat portion of some essential to the conservation of the consultation requirements of section proposed listing determinations. In species. We are soliciting any additional 7(a)(2) would apply.

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Federally funded or permitted listed a new species or subsequently 1973, as amended. Based on our review, projects affecting listed species outside designated critical habitat that may be we find that the petition, in conjunction their designated critical habitat areas affected and the Federal agency has with information readily available in may still result in jeopardy findings in retained discretionary involvement or our files, presents substantial scientific some cases. Similarly, critical habitat control over the action (or the agency’s or commercial information indicating designations made on the basis of the discretionary involvement or control is that a revision of the critical habitat best available information at the time of authorized by law). Consequently, designation for the Florida manatee may designation will not control the Federal agencies may sometimes need to be warranted. Therefore, with the direction and substance of future request reinitiation of consultation with publication of this notice, we are recovery plans, habitat conservation us on actions for which formal initiating a review of the current critical plans, or other species conservation consultation has been completed, if habitat designation for the subspecies to planning efforts if new information those actions with discretionary determine how we intend to proceed available to these planning efforts calls involvement or control may affect with the revision. To ensure a for a different outcome. Section 7(a)(2) subsequently listed species or comprehensive review, we seek of the Act requires Federal agencies, designated critical habitat. information pertaining to the Florida including the Service, to ensure that manatee’s essential habitat needs from References Cited actions they fund, authorize, or carry any interested party. out are not likely to destroy or adversely A complete list of all references cited DATES: To allow us adequate time to modify critical habitat. If a Federal in this document is available, upon conduct this review, we request that you action may affect a listed species or its request, from the Western Colorado send us information on or before critical habitat, the responsible Federal Ecological Services Office (see FOR October 29, 2009. FURTHER INFORMATION CONTACT). agency (action agency) must enter into ADDRESSES: You may submit consultation with us. As a result of this Author information by one of the following consultation, we document compliance The primary authors of this notice are methods: with the requirements of section 7(a)(2) • Federal eRulemaking Portal: http:// through our issuance of: the staff members of the Western Colorado Ecological Services Office (see www.regulations.gov. Search for docket (1) A concurrence letter for Federal FWS-R4-ES-2009-0066 and then follow FOR FURTHER INFORMATION CONTACT). actions that may affect, but are not the instructions for submitting likely to adversely affect, listed species Authority comments. or critical habitat; or • The authority for this action is the U.S. mail or hand-delivery: Public (2) A biological opinion for Federal Comments Processing, Attn: FWS-R4- actions that may affect, and are likely to Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). ES-2009-0066; Division of Policy and adversely affect, listed species or critical Directives Management; U.S. Fish and habitat. Dated: September 16, 2009. Wildlife Service; 4401 N. Fairfax Drive, When we issue a biological opinion Thomas L. Strickland Suite 222; Arlington, VA 22203. concluding that a project is likely to Assistant Secretary for Fish and Wildlife and We will post all information received jeopardize the continued existence of a Parks on http://www.regulations.gov. This listed species or destroy or adversely [FR Doc. E9–23155 Filed 9–28– 09; 8:45 am] generally means that we will post any modify critical habitat, we also provide BILLING CODE 4310–55–S personal information you provide us reasonable and prudent alternatives to (see the Information Solicited section the project, if any are identifiable. We below for more details). define ‘‘Reasonable and prudent DEPARTMENT OF THE INTERIOR FOR FURTHER INFORMATION CONTACT: alternatives’’ at 50 CFR 402.02 as Dave Hankla, Field Supervisor, alternative actions identified during Fish and Wildlife Service Jacksonville, Florida Ecological Services consultation that: • Can be implemented in a manner 50 CFR Part 17 Office, 7915 Baymeadows Way, Suite consistent with the intended purpose of 200, Jacksonville, FL 32256, by [Docket No. FWS-R4-ES-2009-0066] the action, telephone (904-731-3336), or by [92210-1117-0000-B4] • Can be implemented consistent with facsimile (904-731-3045). If you use a the scope of the Federal agency’s legal telecommunications device for the deaf Endangered and Threatened Wildlife (TDD), please call the Federal authority and jurisdiction, and Plants; 90-Day Finding on a • Are economically and Information Relay Service (FIRS) at 800- Petition to Revise Critical Habitat for 877-8339. technologically feasible, and the Florida Manatee (Trichechus • Would, in the Director’s opinion, SUPPLEMENTARY INFORMATION: manatus latirostris) avoid jeopardizing the continued Information Solicited existence of the listed species or AGENCY: Fish and Wildlife Service, destroying or adversely modifying Interior. When we make a finding that a critical habitat. ACTION: Notice of 90–day petition petition presents substantial Reasonable and prudent alternatives finding and initiation of critical habitat information indicating that a revision of can vary from slight project review. a critical habitat designation may be modifications to extensive redesign or warranted, we initiate a review of that relocation of the project. Costs SUMMARY: We, the U.S. Fish and critical habitat to determine how we associated with implementing a Wildlife Service, announce a 90–day intend to proceed with the requested reasonable and prudent alternative are finding on a petition to revise the revision of the designation. To ensure similarly variable. critical habitat designation for the that the review is complete and Regulations at 50 CFR 402.16 require Florida subspecies (Trichechus manatus incorporates the best available scientific Federal agencies to reinitiate latirostris) of the endangered West and commercial information, we seek consultation on previously reviewed Indian manatee (Trichechus manatus) information regarding the revision of actions in instances where we have under the Endangered Species Act of critical habitat for the Florida manatee.

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