DRAFT In Reply Refer To: FWS/AES/BCH/ Mr. Michael C. Gregoire Deputy Administrator Biotechnology Regulatory Services Animal and Plant Health Inspection Service 4700 River Road Riverdale MD 20737 Dear Mr. Gregoire: The Animal and Plant Health Inspection Service (APHIS) has requested formal consultation on the deregulation of glyphosate-tolerant creeping bentgrass ( Agrostis stolonifera ). Deregulation would allow this transgenic organism to be distributed nationwide. The present document is a biological opinion on the likely effects of that deregulation. We have relied on the Service’s Regional Offices for information and analysis to support this opinion. We greatly appreciate the cooperative efforts of APHIS staff, particularly Susan Koehler and Michael Blanchette, in carrying out this wide-ranging and complex consultation. Consultation History The Service first met with APHIS staff in 2004 to discuss an appropriate scope and strategy for APHIS to address its responsibility for compliance with section 7 of the Endangered Species Act in considering a petition by the Monsanto Company and the Scotts Company to deregulate a glyphosate-tolerant creeping bentgrass referred to as ASR368. Additional discussions ensued between the two agencies over several years, and on November 16, 2007, APHIS transmitted a request for formal consultation to the Service. That request was accompanied by a Biological Evaluation (BE) and related background information bearing on the petitioned deregulation. Additional discussions have taken place since the request, and on August 26, 2008, APHIS supplemented its BE with an addendum responding to then-recent designations of critical habitat for two listed plant species. On February 25, 2009, the Service transmitted a draft biological opinion to APHIS and its applicants, and additional discussions and meetings took place subsequently, including a visit by Scotts personnel to affected areas in the Willamette Valley in April, 2009. Description of the Proposed Action The proposed action evaluated in this consultation is the deregulation in whole of glyphosate- tolerant creeping bentgrass. This deregulation would allow seed and plants of the deregulated organism to be sold and grown throughout the United States. The BE anticipated effects to 69 listed species and adverse effects to 11 listed species. These species are named in the request for DRAFT consultation. Species Addressed and Summary Conclusions The information and analysis supporting the conclusions presented below are contained in two enclosures, one originally prepared by the Service’s Sacramento, California, Fish and Wildlife Office and the other by our Portland, Oregon, Fish and Wildlife Office. In all, we find that two species are likely to be jeopardized and the critical habitats of two species are likely to be adversely modified by the proposed action. For an additional 24 species, we find that the proposed action is likely to have adverse effects, but not to cause jeopardy. The Service finds that the proposed action is likely to jeopardize the continued existence of the following endangered species, for both of which APHIS found likely adverse effect, but not jeopardy. Willamette daisy ( Erigeron decumbens var. decumbens ) Bradshaw’s lomatium ( Lomatium bradshawi ) The Service finds that the proposed action is likely to adversely modify designated critical habitat of the following endangered species. This biological opinion does not rely on the regulatory definition of “destruction or adverse modification” of critical habitat at 50 C.F.R. 402.02. Instead, we have relied upon the statutory provisions of the Act to complete the following analysis with respect to critical habitat. Fender’s blue butterfly ( Icaricia icarioides fenderi ) Willamette daisy ( Erigeron decumbens var. decumbens ) The Service concludes that the following species are likely to be adversely affected, but not jeopardized, by the proposed action. Those marked with an asterisk are among those also found by APHIS to be likely to be adversely affected. Double asterisks indicate a species that APHIS found likely to be affected, but not likely to be adversely affected. Endangered Contra Costa goldfields ( Lasthenia conjugens ) Greene’s Tuctoria ( Tuctoria greenei ) Burke’s goldfields ( Lasthenia burkei ) Butte County meadowfoam ( Limnanthes floccosa ssp. californica ) Hairy orcutt grass ( Orcuttia pilosa ) Sebastapol meadowfoam ( Limnanthes vinculans ) Pitkin Marsh lily ( Lilium pardalinum ssp. pitkinense ) Presidio clarkia ( Clarkia franciscana ) Baker’s stickyseed ( Blennosperma bakeri ) San Francisco lessingia ( Lessingia germanorum )* Suisun thistle ( Cirsium hydrophilum var. hydrophilum )* White sedge ( Carex albida ) Soft bird’s beak ( Cordylanthus mollis ssp. mollis )* 2 DRAFT Sacramento orcutt grass ( Orcuttia viscida ) Nelson’s checkermallow ( Sidalcea nelsoniana )* Kincaid’s lupine ( Lupinus sulphureus ssp. kincaidii )* Fender’s blue butterfly ( Icaricia icarioides fenderi )* Threatened Golden paintbrush ( Castilleja levisecta ) Slender Orcutt grass ( Orcuttia tenuis ) San Joaquin Valley Orcutt grass ( Orcuttia inaequalis ) Hoover’s spurge ( Chamaesyce hooveri ) Fleshy owl’s-clover ( Castilleja campestris ssp. succulenta ) Colusa grass ( Neostapfia colusana ) Valley elderberry longhorn beetle ( Desmocerus californicus dimorphus ) California red-legged frog ( Rana aurora draytonii )** The Service concurs, based on the information presented in the BE, that the proposed action is not likely to adversely affect the remaining 58 species named in the request for consultation or to adversely modify critical habitat of any listed species other than the two indicated above. REASONABLE AND PRUDENT ALTERNATIVES Regulations (50 CFR 402.02) implementing section 7 of the Act define reasonable and prudent alternatives (RPAs) as alternative actions, identified during formal consultation, that (1) can be implemented in a manner consistent with the intended purpose of the proposed Federal action; (2) can be implemented consistent with the scope of the action agency’s legal authority and jurisdiction; (3) are economically and technologically feasible; and (4) would, the Service believes, avoid the likelihood of the Federal action jeopardizing the continued existence of listed species or destroying or adversely modifying critical habitat. No alternatives are available that allow the intended purpose of the proposed action to be met and that also avoid jeopardy or adverse modification of critical habitat. A summary of potential RPAs that were considered but rejected is discussed below. Partial Deregulation: Excluding Sale to Non-Commercial (Non-Golf Course) Agents The Scotts Company indicated during an April 2009, meeting that the original intention of their marketing was to sell glyphosate tolerant creeping bentgrass to golf courses with a turf manager on staff who was educated in the use and maintenance of the new product. Scotts further asserted that creeping bentgrass grown on golf courses would never be allowed to flower, therefore, eliminating the risk of pollen contamination to naturalized bentgrass populations. Reasons for Rejection 3 DRAFT 1. Although theoretically plants would never be allowed to flower, it is possible that some seed may end up in the rough where plants are routinely allowed to reach heights were flowering could occur. A single plant that flowers could result in the release of the glyphosate tolerant gene into the wild. 2. Anytime seed is moved, there is a risk of escape. Seed could be lost during initial seeding efforts and could establish on adjacent properties. The recent escape of glyphosate tolerant sugar beets in the Willamette Valley of Oregon (Hall 2009) and of herbicide resistant rapeseed in Japan (Saji et al. 2005, Aono et al. 2006) illustrate the difficulty in controlling movement of herbicide resistant species. 3. APHIS may not have the authority to enforce this type of requirement. Once the bentgrass were deregulated, APHIS would no longer be involved in the commercial exchange of the product. Additional management that would be required to monitor the distribution of glyphosate tolerant creeping bentgrass would be beyond the scope of APHIS’ authority, therefore violating RPA criterion (2), above. Partial Deregulation: Excluding Growth or Sale of Glyphosate Tolerant Creeping Bentgrass in Oregon and Washington Oregon and Washington, specifically the Willamette Valley and Puget Trough, are areas of primary concern for the potential release of glyphosate tolerant creeping bentgrass. Bentgrass species are known weeds in these areas and are often controlled with glyphosate formulations. Ideally, if glyphosate tolerant creeping bentgrass were never able to reach the Willamette Valley and Puget Trough, the concerns for the listed species in these areas would be alleviated. Reasons for Rejection 1. There is no mechanism in place to control the movement of glyphosate tolerant creeping bentgrass across state lines. 2. Sale and commercial production of glyphosate tolerant creeping bentgrass are the main methods of introduction; however, seed from this species is light and easily dispersed. Movement from adjacent states could occur through equipment sharing, movement of vehicles, or even movement of seed or stolons on human beings, especially on shoes or golf bags. The recent escape of glyphosate tolerant sugar beets in the Willamette Valley of Oregon (Hall 2009) and of herbicide resistant rapeseed in Japan (Saji et al. 2005, Aono et al. 2006) illustrate