Federal Register / Vol. 49, No. 136 / Friday, July 13, 1964 / Rules and Regulations

Fish and Wildlife Service [to 6 inches) across, with woody stems at the base and herbaceous stems 50 CFR Part If above. The short narrow leaves (5-12 millimeters long and 1-2 millimeters Endangered and Threatened Wildllfe wide] are dark green above and densely and Plants; Final Rule To Determine woolly below. At the ends of the Eriogonum Pelinophilum To Be an herbaceous branches there are clusters Endangered Species and To Designate of small white to cream flowers. The Its Critical Habitat plants grow in alkaline clay soils, locally AOENCY: Fish and Wildlife Service, referred to as adobes, on sparsely Interior. vegetated badlands of Mancos shale. ACTION: Final rule. They are apparently restricted to a band of whitish soil within the badlands. The SUMMARY: The Service has determined single population with two sites about Eriogonum pelinophilum (clay-loving % of a mile apart consists of 10,006 wild-buckwheat) to be an endangered individuals on 120 acres of private land species and has designated its critical between Austin and Hotchkiss in west- habitat under the authority of the central Colorado. Land adjacent to the Endangered Species Act. Only one population and between the two sites population of Eriogonum pelinophilum. has been fenced off for horse pastures with about 10,000 individuals, is known and corrals. As the horses consume all on 120 acres of private land in Delta the vegetation within a pasture, County, Colorado. The adjacent land additional land has been fenced off has been fenced off into horse corrals (there is little possibility of revegetatibn and pastures. All vegetation within in this desert area). The area containing these areas has been eliminated. The the population may be fenced off and only area where the clay-loving wild- overgrazed in the near future. All buckwheat is known to occur is under vegetation including the clay-loving imminent threat of similarly being wild-buckwheat would probably be lost. fenced off with the probable result being In addition, there is some off-road loss of the clay-loving wild-buckwheat. vehicle traffic over the population in This determination will provide connection with management of the opportunity for protection and horses and pasture. Thus, the species is management of the species under the vulnerable because of its restriction to a Endangered Species Act of 1973, as particular soil type and endangered by amended. the likely fencing of its habitat and EFFECTIVE DATE: The effective date of overgrazing by horses thereon. It is not this rule is August 13,1%X protected under any Colorado law. ADDRESSES: The complete file for this Section 12 of the Endangered Species rule is available for inspection, by Act of 1973 directed the Secretary of the appointment, during normal business Smithsonian Institution to prepare a hours of the Service’s Endangered report on those plants considered to be Species Staff at 134 Union Boulevard, endangered, threatened, or extinct. This fourth floor, Lakewood, Colorado. report, designated as House Document FOR FURTHER INFORMATION CONTACT: No. 94-51, was presented to Congress on Dr. James L. Miller, Regional Botanist, January 9,1975, and included Eriugonum Endangered Species Staff, U.S. Fish and pelinophilum. On July 1.1975, the Wildlife Service, P.O. Box 254813,Denver Dtiector published a notice in the Federal Center, Denver, Colorado 80225 Federal Register (40 FR 27823) of his - (30312342496 or FTS 234-2496). acceptance of the Smithsonian report as SUPPLEMENTARY INFORMATION: a petition within the context of Section 4(c)(2) of the 1973 Act, and of his Background intention thereby to review the status of Eriogonum pelinophilum (clay-loving the plant taxa named within. On June 16, wild-buckwheat) was first collected by 1976, the Service published a proposed Harold Gentry in 1958. However, the rule in the Federal Register [41 FR 24523) distinctiveness of Gentry’s collection to determine approximately 1,700 was not recognized until 1971, when Dr. vascular plant taxa to be endangered James Reveal conducted an analysis of species pursuant to Section 4 of the Act. the species group [Reveal, 1971). Even This list was assembled on the basis of J: then. repeated searches were made comments and data received by the before he relocated the site in 1972 Smithsonian Institution and the Service (Reveal, 1973). Additional localities in response to House Document No. 94- have not been found despite extensive 51 and the July 1975 Federal Register field searches in 1981 and 1983. notice. Eriogonum pelinophilum was Eriogonum pelinophilum is a low, included in the July 1975 notice (40 FR rounded subshrub only 5-10 centimeters 27881) and in the June 1976 proposal [41 (to 4 inches) high and 8-15 centimeters FR 24560). General comments received Feder8J RegMer / Vol. 49, No. 136 / Friday, July 13, 1964 / Rules and Regulations 28563 in relation to the IS78 proposal were acres indicated in the propoea1 to 175 buckwheat, wouid be removed in a short summarized in the April 26,1976, 8cres. The Governor abo reminded the time by horses and mules, as it has been Federal Registar (43 FR f7999J. Service to recognize the interests of the in the adjacent fenced areas. The Endangered Species Act private landowners as it took steps to D. The inadequacy of existing amendments of 1978 required that all protect the species. The BLM indicated regulatory mechanisms. No Federal or proposals over 2 years old be it had no new data on the species. The State laws currently protect Eriogonum withdrawn. On December 10.1979, the Service agrees with the comments and pelinophilum or its habitat. The Service published a notice of the has made changes accordingly, except Endangered Species Act offers withdrawal of the still aDDlic8ble that further study has resulted in possibilities for protection of this portions of the June 1976 proposal along recognition that the complete area species. with other proposals that had expired occupied by the species is 120 acres E. Other natural or manmade factors (44 FR 70796). The July 1975 notice was rather than 175 acres. affecting its continued existence. replaced on December 15,1966. by the Because the continuance of this species Service’s publication in the Federal Summary of Factors Affecting the Species depends on only one population, its Register (45 FR 62479) of a new notice of survival is endangered by inadvertent review for plants, which included After 8 thorough review and actions in the area that do not take its Eriogonum pelinophilum. No comments consideration of 811information presence into account. It is not know on this species were received in available. the Service has determined whether the probable loss of plants on response to the 1966 notice. On February that Eriogonum pelinophilum should be fencing and grazing the area between 15,1983, the Service published a notice classified 8s an endangered species. the two sites of the population has in the Federal Register 148 FR 6752) of its Procedures found at Section 4(8)(l) of resulted in depletion of the genetic prior finding that the petitioned action the Endangered Species Act [16 U.S.C. variation in the species. on this species may be warranted, in 1531 et seq.] and regulations accord with Section 4[b)(3)(A) of the Act promulgated to implement the listing The Service has carefully assessed the as amended in 1962. On June 22.1983, provisions of the Act [codified at 56 CFR best scientific information available the Service published a proposed rule Part 424; under revision to accommodate regarding the past, present, and future (48 FR 26504) to list Eriogonum 1982 Amendments-see proposal at 48 threats faced by this species in pelinophilum as an endangered species, FR 36662, August 8.1983) were followed. determining to make this rule final. including a finding that the petitioned A species may be determined to be an Based on this evaluation, the Service action was warranted, in accord with endangered or a threatened species due has determined to list Eriogonum Section 4(b)(3)(B)(ii) of the Act, snd also to one or more of the five factors pelinophilum as an endangered species. proposed critical habitat for the species. described in Section 4(a)(l). These In view of the threat to its entire habitat, factors and their application to this appears to be the correct Summary of Comments and Eriogonumpelinophilum Reveal (clay- assessment of the situation faced by this Recommendations loving wild-buckwheat) are 8s follows: species. Critical habitat is being In the June 22.1963, proposed rule (48 A. The present or threatened designated for the reasons discussed in FR 26594) and associated notifications, destruction, modification, or curtaiIment the following section. A decision to take all interested parties were requested to of its habitat or range. Eriogonum no action would exclude Eriogonum submit factual reports or information pelinophilum is in danger of having its pelinophilum from needed protection that might contribute to the development remaining habitat fenced off into horse available under the Endangered Species. of a final rule. Appropriate State pastures and corrals. The subsequent Act. Therefore, no action or listing as agencies, county governments. Federal grazing and trampling could destroy this threatened would be contrary to the agencies, scientific organizations, and species. Its range would be greatly Act’s intent. other interested parties were contacted curtailed if not entirely eliminated. Critical Habitat and requested to comment. Newspaper Adjacent areas have already been notices were published in the Delta fenced off end grazed, reducing the Critical habitat, as defined by Section County Independent on July 4,11,18. population and apparently splitting it 3 of the Act, means:-(i) The specific and 25, 1983, which invited general into two sites separated by about s/r of a areas within the geographical area public comment. Four comments were mile. There is ato some damage to the occupied by a species, at the time it is received and 8re discussed below. No population from off-road vehicles in the listed in accordance with the Act, on public hearing was held. course of continuing work in the area. which are found those physical or All four comments supported the See also factor C below. biological features (I) essential to the listing of Eriogonum pelinophilum 8s an B. Overutilization for commercial, conservation of the species and (II) that endangered species. Comments were recreational, scientific, or educational may require special management received from the Governor of Colorado; purposes. Acreage of the ranch has been considerations or protection, and (ii) the Colorado Natural Areas Program of offered for sale in the newspaper North specific areas outside the geographical the Colorado Department of Natural Fork Times under the heading “Own 8 area occupied by a species at the time it Resources; the Colorado Natural Rare and Endangered Species” and is listed, upon a determination that such Heritage Inventory: and the Craig, featuring the species by name. However, areas are essential for the conservation Colorado. District Office of the Bureau no direct utilization of the species itself of the species. of hand Management (BLM). is known. Section 4(8)(3) of the Act requires that The Governor of Colorado, the C. Disease orpredation. As the critical habitat be designated to the Natural Areas Program, and the Natural vegetation in old pastures is grazed out, maximum extent prudent and Heritage Inventory indicated that 1963 adjacent areas have been fenced off for determinable concurrently with the field work revealed a larger population pastures and corrals. If the sites where determination that a species is in the area than was indicated in the Eriogonum pelinophilum occurs are thus endangered or threatened. Critical proposal (10,666 individuals instead of fenced off, the enclosed area will be habitat is being designated for 666 to 1,666), and that critic81 habitat heavily grazed. Probably all vegefation. Eriogonum pelinophilum to include should be enlarged from the about 166 including the clay-loving wild- approximately 120 acres in Delta

___._.___-I -. .I_. -. .--. .- ._.- 28584 Federal Register / Vol. 49, No. 136 1 Friday, July 13, 1964 / Rules and Regulations

County, Colorado. about 3 miles east of cooperation with States such as Federal land, the new prohibition would Austin near Highway 92; the exact area Colorado, which has a plant cooperative apply. Permits for exceptions to this is indicated below under the agreement under Section 6(c)(2). The prohibition are available through “Regulations Promulgation” section. Act also requires that recovery actions Section lo(a) of the Act, until revised This area includes the entire know be carried out for all listed species. regulations are promulgated to population and includes as a constituent Appropriate actions are initiated by the incorporate the 1982 amendments. element the alkaline clay soils within Service following listing. The protection Proposed regulations implementing this the sparsely vegetated badlands of required by Federal agencies and new prohibition were published on July Mancos shale to which Eriogonum prohibitions against taking are 6,1983 (48 FR 31417) anditis pelinophilum is restricted. All of the discussed in part below. anticipated that these will be made final critical habitat is on private land. Section 7(a) of the Act, as amended, following public comment. Eriogonum Section 4(b)(8) requires, for any - requires Federal agencies to evaluate pelinophilum is known to occur only on proposed or final regulation that their actions with respect to any species private land. It is anticipated that few designates critical habitat, a brief that is proposed or listed as endangered collecting permits for the species would description and evaluation of those or threatened. Regulations implementing ever be requested, as this plant has not activities (public or private) that may this interagency cooperation provision been of interest to collectors. Requests adversely modify such habitat or may of the Act are codified at 50 CFR Part for copies of the regulations on plants be affected by such designation. The 402 and are now under revision (see and inquiries regarding them may be fencing of the critical habitat into horse proposal at 48 F’R 29990; June 29,1983). addressed to the Federal Wildlife Permit pastures and corrals would, through Section 7(a)(2) requires Federal agencies Office, U.S. Fish and Wildlife Service, grazing, directly impact the vegetation to ensure that activities they authorize, Washington, D.C. 20240 (~03/23~1903). there, including Eriogonum fund, or carry out are not likely to The Service will review this species to pelinophilum. Also, the soil may become jeopardize the continued existence of a determine whether it should be placed more compacted by trampling and listed species or to destroy or adversely upon the Annex of the Convention on vehicular activity, adversely affecting modify its critical habitat. If a Federal Nature Protection and Wildlife plant gwwth. Since the critical habitat is action may affect a listed species or its preservation in the Western on private land, there will be no impact critical habitat, the responsible Federal Hemisphere, which is implemented on private actions from the designation: agency must enter into formal through Section 8A(e) of the Act. and no Federal activities are known in the whether it should be considered for area. consultation with the Service. However, Section 4(b)(2) of the Act requires the no Federal involvement is known or other appropriate international Service to consider economic and other expected for this species and its critical agreements. habitat. inpacts of designating a particular area National Environmental Policy Act as critical habitat. The Service has The Act and its implementing considered the critical habitat regulations found at 50 CFR 17.61,17.62, The Fish and Wildlife Service has designation in light of revelant and 17.63 set forth a series of general determined that an Environmental additional information obtained from trade prohibitions and exceptions that Assessment, as defined by the National comments on the proposed rule, has apply to all endangered plant species. Environmental Policy Act of 1969, need prepared an analysis. and believes that With respect to Eriogonum not be prepared in connection with economic and other impacts of this pelinophilum, all trade prohibitions of regulations adopted pursuant to Section action are not significant in the Section 9(a)(2) of the Act, implemented 4(a) of the Endangered Species Act of foreseeable future. Although the critical by 50 CFR 17.61, would apply. These 1973, as amended. A notice outlining the habitat is expanded by about 18 acres prohibitions, in part, make it illegal for Service’s reasons for this determination from that in the proposal, no effect is any person subject to the jurisdiction of was published in the Federal Register on anticipated since there is no Federal the United States to import or export, October 25,1983 (48 FR 49244). activity in the area. The conclusion of transport in interstate or foreign this analysis is that designation of commerce in the course of a commercial Regulatory Flexibility Act and Executive critical habitat for this species will have activity, or sell or offer for sale this Order 12291 no significant economic impact on any species in interstate or foreign private or Federal agencies and that no commerce. Certain exceptions can apply The Department of the Inter+ has known Federal activity is ongoing or to agents of the Service and State determined that designation of critical anticipated that will affect the area so conservation agencies. The Act and 50 habitat for this species will not proposed. CFR 17.62 also provide for the issuance constitute a major action under of permits to carry out otherwise Executive Order 12291 and certifies that Available Conservation Measures prohibited activities invo!ving this designation will not have a Conservation measures provided to endangered species under certain significant economic effect on a species listed as endangered or circumstances. No trade in Eriogonum substantial number of small entities threatened under the Endangered pelinophifum is known. It is anticipated under the Regulatory Flexibility Act (5 Species Act include recognition, that few trade permits involving the U.S.C. 601 et seq.). These determinations recovery actions, requirements for species would ever be sought or issued are based on a Determination of Effects Federal protection, and prohibitions since this species is not known in that is available from the Service’s against certain practices. Recognition cultivation nor is it common in the wild. Denver Endangered Species Staff (see through listing encourages and can Section 9(a)(2)(B) of the Act, as ADDRESSES section above). result in conservation actions by amended in 1982, prohibits the removal Federal. State, and private agencies, and reduction to possession of Literature Cited groups, and individuals. The endangered plant species from areas Reveal, J.L.1971. Notes on Eriogonum-VI. A Endangered Species Act provides for under Federal jurisdiction. Should the Revision of the Eriogonum microthecum possible land acquisition and clay-loving wild-buckwheat occur on complex(Polygonaceae). Brigham Young Federal Register 1 Vol. 49, No. 136 / Friday, July 13, 1984 / Rules and Regulations 28565 2’ University Science Bulletin. Biologic’al List of Subjects in 50 CFR Part 17 Authority: Pub. L 93405.87 Stat. 884: Pub. Series13(1): l-45. L 8&859,ftO Stat. 911; Pub. L. 95-632.92 Stat. Reveal, J.L 1973. A new subfmticose Endangered and threatened wildlife, 3751; Pub. L. 96-159.93 Stat. 1225: Pub. L. 97- Eriogonum [Polygonaceae) from western Fish. Marine mammals, Plants 304.96 Stat.1411 (16U.S.C.1531etseq.). Colorado. Great Basin Naturalist 33:120- (agriculture). 122. 2. Amend 8 17.12(h) by adding the Regulations Promulgation following, in alphabetical order under Author PART lP+AMENDiD] Polygonaceae, to the List of Endangered and Threatened Plants: The primary author of this final rule is Accordingly, Part 17, Subchapter B of Dr. James L. Miller, U.S. Fish and Chapter I, Title 50 of the Code of Federal 5 17.12 Endangered and threatened Wildlife Service, Denver Regional Office Regulations, is amended as set forth plants. (address above). Dr. Bruce MacBryde of below: l t l l t the Service’s Washington Office of 1. The authority citation for Part 17 (h) l l l Endangered Species served as editor. reads as follows:

...... polpmaw.s--&I* Eiicgocm F&X@&TI ...... caay-bving wildw t ...... _...... lI.S.A.(CO) ..__.....___E ...... _.____...... _....._..__...____...... 17.98(a) __._..._.__.,..__.NA ......

3. Amend 4 17.96(a) by adding critical (8.3 acres). Total 119.8 acres. The primary habitat of Eriogonum pelixtophilum as constituent elements include those factors follows: The position of this entry under associated with the whitish alkaline clay 0 17.%(a) will follow the same sequence soils wi’hin the sparsely vegetated badlands as that in which the species occurs in of Mancos shale. 17.12. CRITICAL HABITAT 9 17.96 Crltical habitat-plants. CLAY-LOVING WILD-BUCKWHEAT (a) * l l Delrr Counw. COLOI?ADO l l l l l Family Polygonaceae: Eriagonam pefinophilum (clay-loving wild-buckwheat). Colorado, Delta County. About 8 miles east of Austin near Highway 92. TI4S, R94W 6th P.M. Section 26west 225 feet of Section 26 lying south of State Highway 92 (5.6 acres). Section 27-that part of the SEY+SE% lying south of State Highway 92 (35.6 acres]. Section 34-an area bounded by a line beginning at the northeast comer of Section 34. thence south along the section line 200 feet to a point: thence southwesterly to a point 1050 feet south and 550 feet west of the northeast comer of Section 34: thence southwesterly to a point 708 feet north and 900 feet east of center Yi comer of Section 34; thence westerly 900 feet to the north-south % line; thence northerly 80~1feet along the Y4 line to a point; thence northeasterly to a point of the east YI B line; thence northerly along the Ks line 300 feet to the north section line of Section 34; thence easterly along the north section line to the point of beginning (65.0 Dated: June 21,1964. acres). Section 35-north 200 feet of the west J. Craig Potter, 225 feet (1.0 acres]. Section 27-west 200 feet Acting Assistant Secretary for Fish and of Section 27 lying south of State Highway 92 Wildlife and Parks. (4.3 acres]. Section 2Ekeast 400 feet of (FR Dot. M-18576 Filed 7-12-84: 8’45 am] Section 28 lying south of State Highway 92 BILLING CODE 4310-S-Y