[Federal Register Volume 63, Number 56 (Tuesday, March 24, 1998)]
[Proposed Rules]
[Pages 14060-14065]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-7479]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE87


Endangered and Threatened Wildlife and Plants: Proposed 
Threatened Status for the Plant Gaura Neomexicana ssp. Coloradensis

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The Fish and Wildlife Service proposes to list the plant Gaura 
neomexicana ssp. coloradensis (Colorado butterfly plant) as a 
threatened species pursuant to the Endangered Species Act of 1973, as 
amended. Gaura neomexicana ssp. coloradensis is a short-lived, 
perennial herb endemic to moist soils in mesic or wet meadows of 
floodplain areas in southeastern Wyoming, northcentral Colorado, and 
extreme western Nebraska. This early to mid-seral stage species occurs 
primarily in habitats created and maintained by streams active within 
their floodplains with vegetation that is relatively open and not 
overly dense or overgrown. The conversion of areas with native grasses 
in riparian areas to agriculture, water diversions, channelization, and 
urban development threaten Gaura neomexicana ssp. coloradensis by 
changing habitat significantly enough to preclude survival of viable 
populations.

DATES: Comments from all interested parties must be received by May 26, 
1998. Public hearing requests must be received by May 8, 1998.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to the Field Supervisor, U.S. Fish and Wildlife Service, 4000 
Morrie Avenue, Cheyenne, Wyoming 82001. Comments and materials received 
will be available for public inspection, by appointment, during normal 
business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Mike Long, Field Supervisor, Wyoming 
Field Office (see ADDRESSES section), (telephone 307/772-2374; 
facsimile 307/772-2358).

SUPPLEMENTARY INFORMATION:

Background

    Gaura neomexicana ssp. coloradensis was initially described as 
Gaura coloradensis by Rydberg (1904) based on material collected near 
Fort Collins, Colorado in 1895. Munz (1938) transferred Gaura 
coloradensis to Gaura neomexicana and reduced it to variety 
coloradensis. This taxon is now recognized as Gaura neomexicana ssp. 
coloradensis (Raven and Gregory 1972).
    Little is known about the historical distribution of G. n. ssp. 
coloradensis. Prior to 1984, no extensive documentation of the plants' 
range had been conducted. The plant was known from several historical 
(and presumably extirpated) locations in southeastern Wyoming and at 
least four historical (and presumably extirpated) locations in northern 
Colorado; and from three extant populations in Laramie County, Wyoming, 
and Weld County, Colorado. The total known population size was 
estimated in the low hundreds (Dorn 1979).
    Intensive range-wide surveys from 1984-1986 resulted in the 
discovery or relocation of 22 populations in Wyoming, Colorado, and 
Nebraska containing approximately 20,000 flowering individuals 
(Marriott 1987). Additional surveys since 1992 have resulted in the 
discovery of at least two additional populations in Wyoming and 
Colorado (Fertig 1994; Floyd 1995b). However, at least two known 
populations in Wyoming and Colorado have not been relocated in recent 
years and may no longer be extant (Fertig 1994). The plant is currently 
known from 22 populations with a total population as low as 26,000 
individuals; however, several of the populations may no longer exist. 
All known populations are within a small area in southeastern Wyoming, 
western Nebraska, and north-central Colorado. Two of the populations 
occur on F.E. Warren Air Force Base; the remaining 20 populations occur 
on private or State lands.
    Gaura neomexicana ssp. coloradensis is a short-lived, monocarpic 
(flowering and bearing fruit only once), perennial herb with one or a 
few reddish, pubescent stems that are 50-80 centimeters (2-3 feet) 
tall. The lower leaves are lance-shaped with smooth or wavy-toothed 
margins and average 5-15 cm (2-6 inches) long, while those on the stem 
are smaller and reduced in number. Flowers are arranged in a branched, 
elongate inflorescence above the leaves.
    Only a few flowers are open at any one time and these are located 
below the rounded buds and above the mature fruits. Individual flowers 
are 5-14 millimeters (.25-.5 inches) long with four reddish sepals and 
four white petals that turn pink or red with age. The hard, nutlike 
fruits are 4-angled and sessile (stalkless and attached directly at the 
base). Nonflowering plants consist of a stemless, basal rosette of 
oblong,

[[Page 14061]]

hairless leaves 3-18 cm (1-7 inches) long (Marriott 1987; Fertig 1994; 
Fertig et al. 1994).
    Gaura neomexicana ssp. coloradensis occurs on subirrigated, 
alluvial soils on level or slightly sloping floodplains and drainage 
bottoms at elevations of 1,524-1,951 meters (5,000-6,400 feet). 
Colonies are often found in low depressions or along bends in wide, 
active, meandering stream channels a short distance upslope of the 
actual channel. The plant requires early to mid-seral riparian 
habitats. It commonly occurs in communities dominated by Agrostis 
stolonifera (redtop) and Poa pratensis (Kentucky bluegrass) on wetter 
sites and Glycyrrhiza lepidota (wild licorice), Cirsium flodmanii 
(Flodman's thistle), Grindelia squarrosa (curlytop gumweed), and 
Equisetum laevigatum (smooth scouring rush) on drier sites. These areas 
are usually intermediate in moisture between wet, streamside 
communities dominated by sedges, rushes, and cattails, and dry, upland 
shortgrass prairie. Typical G. n. ssp. coloradensis habitat is 
relatively open without dense or overgrown vegetation. Salix exugua 
(sandbar willow) and Cirsium arvense (Canada thistle) may become 
dominant in areas of G. n. ssp. coloradensis habitat that are not 
periodically flooded or otherwise disturbed. Gaura neomexicana ssp. 
coloradensis typically occurs on soils derived from conglomerates, 
sandstones, and tuffaceous (compacted volcanic ash) mudstones and 
siltstones of the Tertiary White River, Arikaree, and Oglalla 
Formations (Love and Christiansen 1985). This type of habitat is not 
unusual in eastern Colorado and Wyoming.
    Gaura neomexicana ssp. coloradensis is an early successional 
species (although probably not a pioneer) adapted to utilize stream 
channel sites that are periodically disturbed. Historically, flooding 
was probably the main cause of disturbances in the plant's habitat, 
although wildfire and grazing also may have been important. Although 
flowering and fruiting stems may exhibit increased mortality because of 
these events, vegetative rosettes appear to be little affected 
(Mountain West Environmental Services 1985). The establishment and 
survival of seedlings appears to be enhanced at sites where tall and 
dense vegetation has been removed by some form of disturbance. In the 
absence of occasional disturbance, the plant's habitat can become 
choked out by dense growth of willows, grasses, and exotic plants, 
preventing new seedlings from becoming established to replace plants 
that have died (Floyd 1995a; Fertig 1996).

Previous Federal Action

    The January 9, 1975, report of the Secretary of the Smithsonian 
Institution (House Document No. 94-51) contained lists of over 3,000 
United States vascular plant taxa (including G. n. ssp. coloradensis) 
considered candidates for the list of endangered and threatened species 
provided for by the Endangered Species Act (Act) of 1973, as amended 
(16 U.S.C. 1531 et seq.). On July 1, 1975, the Service published a 
Notice of Review in the Federal Register (40 FR 27823) of its 
acceptance of the report of the Smithsonian Institution as a petition 
within the context of section 4(c)(2) of the Act. On June 16, 1976, the 
Service published a proposed rulemaking in the Federal Register (41 FR 
24523) which included G. n. ssp. coloradensis; however, a final rule 
for this action was not published. The December 15, 1980, Notice of 
Review for Plants (45 FR 82479) included G. n. ssp. coloradensis as a 
Category 1 candidate species and retained that status in subsequent 
notice of review, published in the Federal Register on September 27, 
1985 (50 FR 39526), February 21, 1990 (55 FR 6184), and September 30, 
1993 (58 FR 51144). This species was mistakenly left out of the notice 
of review published November 28, 1983 (48 FR 53640). On February 28, 
1996, the Service published a Notice of Review in the Federal Register 
(61 FR 7596) that discontinued the use of different categories of 
candidate species. Candidate species are those species for which the 
Service has sufficient information on file detailing biological 
vulnerability and threats that would support issuance of a proposed 
rule, but issuance of the proposed rule is precluded by other listing 
actions. Gaura neomexicana ssp. coloradensis was included as a 
candidate in the February, 1996, notice of review and retained that 
status in the subsequent notice of review, published in the Federal 
Register on September 19, 1997 (62 FR 49384). Processing of this 
proposal is a Tier 3 activity under the current listing priority 
guidance (61 FR 64480, December 5, 1996). The listing priority assigned 
to the species in the latter two notices of review was a 3. This 
proposal is being published ahead of other species with a higher 
listing priority that Region 6 has the lead for because G. n. ssp. 
coloradensis is part of the settlement agreement in the Fund for 
Animals et al. v. Lujan et al. case (D.D.C. Civ. No. 92-800).
    Two populations of G. n. ssp. coloradensis occur on F.E. Warren Air 
Force Base, Cheyenne, Wyoming. On January 18, 1982, a Memorandum of 
Understanding between the Service and the Base was signed to assure 
continued survival of the populations occurring on the Base. The 
agreement has been updated and signed several times since 1982. In 1990 
a Research Natural Area was established to include all the known 
naturally occurring populations on the Base. The most recent Memorandum 
of Understanding between the Base, The Nature Conservancy, and the 
Service was signed on March 3, 1992. The agreement supported 
demographic studies of the G. n. ssp. coloradensis populations on the 
Base and provided for ongoing protective efforts. However, the 
agreement's duration was 5 years and it has not been revised or 
renewed. Discussions between the Service and the Base regarding renewal 
of the agreement are ongoing.

Summary of Factors Affecting the Species

    Section 4 of the Endangered Species Act and regulations (50 CFR 
part 424) promulgated to implement the listing provisions of the Act 
set forth the procedures for adding species to the Federal lists. A 
species may be determined endangered or threatened due to one or more 
of the five factors described in section 4(a)(1). These factors and 
their application to G. n. Woot. ssp. coloradensis (Rydb.) Raven and 
Gregory (Colorado butterfly plant) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    All but two of the currently known populations of G. n. ssp. 
coloradensis occur on private or State lands (mostly private) managed 
primarily for agriculture. Haying and mowing, water development, land 
conversion for cultivation, competition from exotic plants, and loss of 
habitat to urban growth are the main threats to the plant on these 
lands (Marriott 1987; Fertig 1994). On some sites, including F.E. 
Warren Air Force Base, habitat degradation resulting from plant 
succession and competition is the main threat to the long-term survival 
of populations. High recreational use by campers, motorists, and 
fishermen is a threat to populations on State park lands in Nebraska.
    Conversion of moist, native grasslands to commercial croplands has 
been widespread throughout southeastern Wyoming and northeastern 
Colorado (Compton and Hugie 1993). Since many of the agricultural lands 
are irrigated

[[Page 14062]]

hay fields, mowing of G. n. ssp. coloradensis habitat for hay 
production has been suggested as a potential threat (Jennings et al. 
1997). This threat can be significant if cutting occurs before the 
plant's fruits have ripened.
    Construction of stock ponds and reservoirs has inundated and made 
unsuitable some G. n. ssp. coloradensis habitat. The development of 
irrigation canals to move water to croplands may remove moisture from 
occupied or potentially suitable habitat, leaving it in a drier, 
unsuitable condition. Additionally, the management of water resources 
for domestic and commercial uses, coupled with encroaching agricultural 
land use, has had a tendency to channelize and isolate water resources 
and fragment, realign, and reduce riparian and moist lowland habitat 
(Compton and Hugie 1993) that could otherwise serve as potential G. n. 
ssp. coloradensis habitat.
    Residential and urban development around the cities of Cheyenne and 
Fort Collins has converted areas of formerly suitable G. n. ssp. 
coloradensis habitat. The high rate of development occurring from 
Colorado Springs, Colorado, to Cheyenne, Wyoming, has been cited as a 
continuing threat to remaining populations of the Preble's meadow 
jumping mouse (Zapus hudsonius preblei), a proposed endangered species 
that also occurs in riparian habitats and whose historic range overlaps 
much of that of G. n. ssp. coloradensis (62 FR 14093, March 25, 1997).
    In nonagricultural, undeveloped areas, a significant threat to G. 
n. ssp. coloradensis populations is from habitat changes resulting from 
natural succession of the plant community. Without periodic disturbance 
events, the semi-open habitats preferred by this species can become 
choked by tall and dense growth of willows, graminoids (grasses), and 
exotic weeds (Fertig 1994). Natural disturbances, such as flooding, 
fire, and ungulate grazing, have been sufficient in the past to create 
favorable habitat conditions for the plant. The natural flooding regime 
within the species floodplain habitat has been altered by construction 
of flood control structures and by irrigation and channelization 
practices. In the absence of such natural disturbances today, managed 
disturbance may be necessary to maintain and create areas of habitat 
(Fertig 1994; 1996). However, many Federal programs, such as those 
administered by the Natural Resources Conservation Service, focus on 
enhancing/protecting riparian areas by removing the types of 
disturbance the plant needs and pushing the habitat into later 
successional stages.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Gaura neomexicana ssp. coloradensis is vulnerable to overcollecting 
conducted for scientific or educational purposes. However, no known 
commercial or recreational threats exist at this time.

C. Disease or Predation

    There are no known diseases affecting G. n. ssp. coloradensis 
populations, although the species is occasionally affected by insect 
galls. Gaura neomexicana ssp. coloradensis is highly palatable to a 
variety of insect and mammalian herbivores (cattle, horses, antelope 
(Antilocapra americana), etc.), but appears to compensate for herbivory 
by increasing branch and fruit production. Livestock grazing can be a 
threat at some sites, especially when animals are not rotated or use is 
concentrated during the summer flowering period. Additionally, plants 
are occasionally uprooted or trampled by livestock and wildlife grazing 
in the vicinity. In at least one location where a population of G. n. 
ssp. coloradensis is divided by a fence, the heavily grazed side of the 
fence had no plants (James L. Miller, U.S. Fish and Wildlife Service, 
in litt. 1987). Observations have shown that the plant can persist and 
thrive in habitats that are winter grazed or managed on a short-term 
rotation cycle (Jennings et al. 1997). Although the butterfly plant 
itself may be grazed (it appears quite palatable to a wide range of 
herbivores), the reduction of competing vegetative cover allows 
seedlings to become more readily established.

D. The Inadequacy of Existing Regulatory Mechanisms

    No Federal or State laws or regulations directly protect G. n. ssp. 
coloradensis or its habitat. Gaura neomexicana ssp. coloradensis is 
listed as Sensitive by the U.S. Forest Service, although no populations 
are currently known from Forest Service lands (D. Hazlett, Plants and 
People Consulting, pers. comm, 1994).

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    The most serious threat on agricultural lands is indiscriminate use 
of broadleaf herbicides for the control of Canada thistle, leafy spurge 
(Euphorbia esula), and other exotic plants (Marriott 1987). The noxious 
weed problem in Laramie county, Wyoming, is particularly evident on 
F.E. Warren Air Force Base. Although competition from these species may 
have serious negative implications for populations of G. n. ssp. 
coloradensis, observations have indicated that the plant is highly 
susceptible to commonly used herbicides when they are applied 
indiscriminately. In 1983 nearly one-half of the mapped populations on 
F.E. Warren Air Force Base were inadvertently destroyed when sprayed 
with Tordon, a persistent herbicide. Additionally, herbicide use along 
road crossings in and adjacent to G. n. ssp. coloradensis populations 
has also been noted (James L. Miller, U.S. Fish and Wildlife Service, 
in litt. 1987). Biological control agents have been used at F.E. Warren 
Air Force Base, but have not been effective in controlling Canada 
thistle or leafy spurge.
    In order for a population to sustain itself, there must be enough 
reproducing individuals and appropriate habitats to ensure its 
survival. It is not known if the scattered populations of G. n. ssp. 
coloradensis contain sufficient individuals and diversity to ensure 
their continued existence over the long term.
    The most recent survey information for the known populations of G. 
n. ssp. coloradensis shows that only four large populations (with at 
least 3,000 or more individuals) currently exist. Only one of these 
occur on Federal lands. Eight populations (one of them occurring on 
Federal lands) are moderately sized, containing between 500 and 1,200 
individuals. The remaining 10 populations are smaller, with six of 
these having less than 100 individuals. The danger to these small 
populations is from a reduction in vigor and fecundity (often evidenced 
by reduced seed set) as random genetic changes occur and genetic 
variability is lost as a result of inbreeding which is inevitable in 
small populations (Ehrlich 1981; Ledig 1986). Because of the small, 
isolated nature of the populations and the few individuals present in 
most of them, G. n. ssp. coloradensis also is more susceptible to 
random events, such as fires, insect, or disease outbreaks or other 
random events that can more easily cause the extirpation of a small 
population.
    Although the plant evolved with and even depended upon the 
disturbance associated with these events, natural events, such as 
floods and fire, may now pose a threat to G. n. ssp. coloradensis. 
Individual plants may not survive such events, and because of low 
numbers and the now highly restricted range of the species, such events 
do pose a threat. A flood in 1983 along Crow Creek destroyed several 
populations and experimental seed plots established in

[[Page 14063]]

1981 (U.S. Fish and Wildlife Service, in litt. 1984.)
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats to G. n. ssp. coloradensis in determining to issue this 
proposed rule. Based on this evaluation, the preferred action is to 
list G. n. ssp. coloradensis as threatened. While not in immediate 
danger of extinction, G. n. ssp. coloradensis is likely to become an 
endangered species in the foreseeable future if the present threats and 
declines continue. Federal listing under authority of the Act is the 
only mechanism the Service can presently identify that ensures 
protection to G. n. ssp. coloradensis throughout its limited range. 
Although destruction or modification of its habitat is a significant 
threat to G. n. ssp. coloradensis, the Service has found critical 
habitat is not prudent (see CRITICAL HABITAT section).

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographical area occupied by a 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) that may require special management 
considerations or protection and; (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures needed to bring the species to the point at which listing 
under the Act is no longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is determined to be endangered or threatened. Service 
regulations (50 CFR 424.12(a)(1)) state that designation of critical 
habitat is not prudent when one or both of the following situations 
exist--(1) The species is threatened by taking or other human activity, 
and identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species. The Service finds that 
designation of critical habitat is not prudent for G. n. ssp. 
coloradensis.
    Designation of critical habitat would not benefit G. n. ssp. 
coloradensis because all but two of the known populations occur on non-
Federal lands where Federal involvement in land-use activities does not 
generally occur. Federal activities would be subject to review under 
section 7(a)(2) of the Act, whether or not critical habitat was 
designated. Section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of a listed species or to destroy or 
adversely modify its critical habitat. Prohibitions of adverse 
modification to critical habitat would only be realized if a Federal 
nexus existed, situations anticipated to be rare in the range of G. n. 
ssp. coloradensis. Any Federal action which would destroy or adversely 
modify the habitat of the few remaining populations of the species 
would also likely jeopardize its continued existence. Therefore, 
habitat protection from Federal actions can be accomplished through the 
section 7 jeopardy standard.
    Additionally, the publication of critical habitat descriptions and 
maps required in a proposal for critical habitat could increase the 
degree of threat from possible take or vandalism and, therefore, 
contribute to the species' decline. Populations exist in small areas 
and are vulnerable to stochastic extinction. The listing of this plant 
as threatened publicizes the rarity of the taxa and can make it 
attractive to researchers, curiosity seekers, or collectors of rare 
plants. The Service determines that any potential benefits beyond those 
afforded by listing, when weighted against the negative impacts of 
disclosing site-specific population locations, does not yield an 
overall benefit and is, therefore, not prudent. The overall habitat 
protection and conservation of this species would be best implemented 
by the recovery process and section 7 provisions of the Act (see 
AVAILABLE CONSERVATION MEASURES section).

Available Conservation Measures

    The Nebraska State Arboretum is currently maintaining a seed bank 
of G. n. ssp. coloradensis collected from sites along Lodgepole Creek 
in Nebraska (J. Locklear, Nebraska State Arboretum, pers. comm.). 
Additional seed has been collected by the Natural Resources 
Conservation Service for deposit at the Bridger Plant Materials Center 
in Montana.
    Habitat along Crow and Diamond Creeks on F.E. Warren Air Force Base 
has been designated as the Colorado Butterfly Plant Research Natural 
Area dedicated to the protection of the largest known population of G. 
n. ssp. coloradensis, and a management plan has been developed 
(Marriott and Jones 1988). Two large populations of G. n. ssp. 
coloradensis occur within the Colorado Butterfly Plant Research Natural 
Area. Under various memoranda of understanding and cooperative 
agreements with the Service and The Nature Conservancy, the Air Force 
has been conducting conservation activities to this species since 1982. 
However, the most recent Memorandum of Understanding with the Base 
expired in March 1997. Additionally, all agreements with the Base 
regarding the plant can be unilaterally terminated by the Air Force at 
any time for reasons of national defense. The Base is currently 
developing a weed-control program to improve and maintain G. n. ssp. 
coloradensis habitat in cooperation with scientists from The Nature 
Conservancy and the University of Wyoming.
    In 1983 a population of G. n. ssp. coloradensis was introduced on 
the Chambers Preserve near Boulder, Colorado. Although several private 
landowners with natural populations of the plant have expressed 
interest in pursuing conservation projects, none are currently in 
place.
    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness and 
conservation actions by Federal, State, and local agencies, private 
organizations, and individuals. The Act provides for possible land 
acquisition and cooperation with the States and requires that recovery 
actions be carried out for all listed species. The protection required 
of Federal agencies and the prohibitions against certain activities 
involving listed plants are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) requires Federal agencies to confer with the Service on 
any action that is likely to jeopardize the continued existence of a 
species proposed for listing or result in destruction or adverse 
modification of proposed critical habitat. If a species is listed 
subsequently, section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued

[[Page 14064]]

existence of the species or destroy or adversely modify its critical 
habitat. If a Federal action may affect a listed species or its 
critical habitat, the responsible Federal agency must enter into formal 
consultation with the Service.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all threatened 
plants. All prohibitions of section 9(a)(2) of the Act, implemented by 
50 CFR 17.71, apply. These prohibitions, in part, make it illegal for 
any person subject to the jurisdiction of the United States to import 
or export, transport in interstate or foreign commerce in the course of 
a commercial activity, sell or offer for sale in interstate or foreign 
commerce, or remove and reduce the species to possession from areas 
under Federal jurisdiction. In addition, for plants listed as 
endangered, the Act prohibits the malicious damage or destruction on 
areas under Federal jurisdiction and the removal, cutting, digging up, 
or damaging or destroying of such plants in knowing violation of any 
State law or regulation, including State criminal trespass law. Section 
4(d) of the Act allows for the provision of such protection to 
threatened species through regulation. This protection may apply to 
this species in the future if regulations are promulgated. Seeds from 
cultivated specimens of threatened plants are exempt from these 
prohibitions provided that their containers are marked ``Of Cultivated 
Origin.'' Certain exceptions to the prohibitions apply to agents of the 
Service and State conservation agencies.
    The Act and 50 CFR 17.72 also provide for the issuance of permits 
to carry out otherwise prohibited activities involving threatened 
plants under certain circumstances. Such permits are available for 
scientific purposes and to enhance the propagation or survival of the 
species. For threatened plants, permits also are available for 
botanical or horticultural exhibition, educational purposes, or species 
purposes consistent with the purposes of the Act. It is anticipated 
that few trade permits would ever be sought or issued because the 
species is not in cultivation or common in the wild. Requests for 
copies of the regulations regarding listed species and inquiries about 
prohibitions and permits may be addressed to U.S. Fish and Wildlife 
Service, P.O. Box 25486, Denver Federal Center, Denver, Colorado 80225 
(telephone 303/236-7400, Facsimile 303/236-0027). Information 
collections associated with these permits are approved under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and assigned Office of 
Management and Budget clearance number 1018-0094. For additional 
information concerning these permits and associated requirements, see 
50 CFR 17.22.
    The Service adopted a policy on July 1, 1994 (59 FR 34272), to 
identify to the maximum extent practicable at the time a species is 
proposed for listing those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of the listing on 
proposed and ongoing activities within a species' range. The Service 
believes that, based upon the best available information, the following 
actions will not result in a violation of section 9, provided these 
activities are carried out in accordance with existing regulations and 
permit requirements:

    (1) Activities authorized, funded, or carried out by Federal 
agencies (e.g., grazing management, agricultural conversions, land 
use activities that would significantly modify the species' habitat, 
wetland and riparian habitat modification, flood and erosion 
control, housing development, recreational trail development, road 
and dam construction, pesticide/herbicide application, pipelines or 
utility line crossing suitable habitat and military maneuvers and 
training) when such activity is conducted in accordance with any 
reasonable and prudent measures given by the Service according to 
section 7 of the Act; or when such activity does not alter the 
hydrology or habitat supporting the plant.
    (2) Casual, dispersed human activities on foot or horseback 
(e.g., waterfowl hunting, bird watching, sightseeing, photography, 
camping and hiking).
    (3) Activities on private lands (without Federal funding or 
involvement), such as grazing management, agricultural conversions, 
wetland and riparian habitat modification (not including filling of 
wetlands), flood and erosion control, housing development, road and 
dam construction, pesticide/herbicide application, pipelines or 
utility line crossing suitable habitat.

    The Service believes that the actions listed below might 
potentially result in a violation of section 9; however, possible 
violations are not limited to these actions alone:

    (1) Unauthorized collecting of the species on Federal lands;
    (2) Application of herbicides violating label restrictions;
    (3) Interstate or foreign commerce and import/export without 
previously obtaining an appropriate permit. Permits to conduct 
activities are available for purposes of scientific research and 
enhancement of propagation or survival of the species.

    Questions regarding whether specific activities, such as changes in 
land use, will constitute a violation of section 9 should be directed 
to the Wyoming Field Supervisor (see ADDRESSES section).

Public Comments Solicited

    The Service intends that any final action resulting from this 
proposal will be as accurate and as effective as possible. Therefore, 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to this species;
    (2) The location of any additional populations of this species and 
the reasons why any habitat should or should not be determined to be 
critical habitat pursuant to section 4 of the Act;
    (3) Additional information concerning the range, distribution, and 
population size or trend of this species;
    (4) Current or planned activities in the subject area and their 
possible impacts on this species;
    (5) Biological or physical elements that best describe G. n. ssp. 
coloradensis habitat that could be essential for the conservation of 
the species;
    (6) Information regarding genetic differences and similarities 
within and between populations of G. n. ssp. coloradensis;
    (7) Possible alternative noxious weed control, grazing, farming, 
and water management practices that will reduce or eliminate impacts to 
G. n. ssp. coloradensis; and,
    (8) Other management strategies that will conserve the species 
throughout its range.
    Final promulgation of the regulation(s) on this species will take 
into consideration the comments and any additional information received 
by the Service, and such communications may lead to a final regulation 
that differs from this proposal.
    The Endangered Species Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days of the date of publication of the proposal in the Federal 
Register. Such requests must be made in writing and be addressed to the 
Wyoming Field Supervisor, see ADDRESSES section.

National Environmental Policy Act

    The Fish and Wildlife Service has determined that Environmental 
Assessments and Environmental Impact Statements, as defined under the 
authority of the National Environmental Policy Act of 1969, need not be

[[Page 14065]]

prepared in connection with regulations adopted pursuant to section 
4(a) of the Endangered Species Act of 1973, as amended. A notice 
outlining the Service's reasons for this determination was published in 
the Federal Register on October 25, 1983 (48 FR 49244).

Required Determinations

    This rule does not contain collections of information that require 
approval by the OMB under 44 U.S.C. 3501 et seq.

References Cited

     A complete list of all references cited herein, as well as others, 
is available upon request from the Wyoming Field Office (see ADDRESSES 
section).
    Author: The primary author of this document is Mary Jennings of the 
Wyoming Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, the Service hereby proposes to amend part 17, 
subchapter B of chapter I, title 50 of the Code of Federal Regulations, 
as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Amend Sec. 17.12(h) by adding the following, in alphabetical 
order under FLOWERING PLANTS, to the List of Endangered and Threatened 
Plants to read as follows:


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                                                                                         
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special  
         Scientific name                Common name                                                                               habitat       rules   
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants                                                                                                                               
                                                                                                                                                        
       *                   *                   *                   *                   *                   *                   *                        
Gaura neomexicana ssp.             Colorado butterfly    USA (CO,NE,WY).....  Onagraceae.........  T               ...........           NA           NA
 coloradensis.                      plant.                                                                                                              
                                                                                                                                                        
       *                   *                   *                   *                   *                   *                   *                        
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: March 6, 1998.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-7479 Filed 3-23-98; 8:45 am]
BILLING CODE 4310-55-U