[Federal Register Volume 74, Number 118 (Monday, June 22, 2009)]
[Proposed Rules]
[Pages 29456-29461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14709]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R6-ES-2009-0037; 92210-1117-0000-B4]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To Revise Critical Habitat for Eriogonum pelinophilum (Clay-
Loving Wild Buckwheat)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding and initiation of critical 
habitat review.

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SUMMARY: We, the U.S. Fish and Wildlife Service (USFWS), announce a 90-
day finding on a petition to revise critical habitat for Eriogonum 
pelinophilum (clay-loving wild buckwheat) under the Endangered

[[Page 29457]]

Species Act (Act) of 1973, as amended. Following a review of the 
petition, we find that the petition presents substantial scientific or 
commercial information indicating that revision of the critical habitat 
for E. pelinophilum may be warranted. Therefore, with the publication 
of this notice, we are initiating a review of the critical habitat for 
the species, and will subsequently issue a 12-month finding to 
determine if revisions to the species' critical habitat are warranted. 
To ensure that the review is comprehensive, we are soliciting 
scientific and commercial data and other information regarding this 
species.

DATES: The finding announced in this document was made on June 22, 
2009. To be considered in the 12-month finding for this petition to 
revise critical habitat, data and information must be submitted to us 
by July 22, 2009.

ADDRESSES: You may submit information by one of the following methods:
     Federal rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-R6-
ES-2009-0037.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R6-ES-2009-0037; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all information received on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Information Solicited 
section below for more details).

FOR FURTHER INFORMATION CONTACT: Patty Gelatt, Acting Western Colorado 
Supervisor, U.S. Fish and Wildlife Service, Ecological Services, 764 
Horizon Drive, Building B, Grand Junction, CO 81506-3946, by telephone 
(970-243-2778), or by facsimile (970-245-6933). People who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Information Solicited

    When we make a finding that a petition presents substantial 
information indicating that revisions to critical habitat may be 
warranted, we are required to promptly commence a review of the status 
of the existing critical habitat determination. To ensure that this 
review of critical habitat is complete and based on the best available 
science and commercial information, we are soliciting additional 
information for Eriogonum pelinophilum. We request information from the 
public, other concerned governmental agencies, Native American Tribes, 
the scientific community, industry, agriculture, or any other 
interested parties concerning the status of critical habitat for E. 
pelinophilum. We are seeking information regarding:
    (1) The historical and current status and distribution of E. 
pelinophilum, its biology and ecology, and ongoing conservation 
measures for the species and its habitat;
    (2) Physical and biological features essential to the conservation 
of the species; and
    (3) Information on threats to the species and its habitat.
    Please note that submissions merely stating support or opposition 
to the actions under consideration without providing supporting 
information, although noted, will not be considered in making a 
determination; section 4(b)(2) of the Act directs that determinations 
as to whether critical habitat shall be revised shall be made ``solely 
on the basis of the best scientific data available and after taking 
into consideration the economic impact, and any other relevant impact, 
of specifying any particular area as critical habitat.'' At the 
conclusion of the critical habitat review, we will issue a 12-month 
finding on the petition, as provided in section 4(b)(3)(D)(ii) of the 
Act.
    You may submit your information concerning this critical habitat 
review by one of the methods listed in the ADDRESSES section.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov. 
Please include sufficient information with your comments to allow us to 
verify any scientific or commercial information you provide.
    Information and materials we receive, as well as supporting 
documentation we used in preparing this 90-day finding, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment during normal business hours, at the U.S. Fish and Wildlife 
Service, Western Colorado Ecological Services Office (see FOR FURTHER 
INFORMATION CONTACT).

Background

    Section 4(b)(3)(D) of the Act of 1973, as amended (16 U.S.C. 1531 
et seq.), requires that we make a finding on whether a petition to 
revise critical habitat for a species presents substantial scientific 
or commercial information indicating that the petitioned action may be 
warranted. We are to base this finding on information provided in the 
petition, supporting information submitted with the petition, and 
information otherwise available in our files. To the maximum extent 
practicable, we are to make this finding within 90 days of our receipt 
of the petition and publish our notice of the finding promptly in the 
Federal Register.
    Our standard for substantial information within the Code of Federal 
Regulations (CFR) with regard to a 90-day petition finding is ``that 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted'' (50 CFR 
424.14(b)). If we find that substantial scientific or commercial 
information was presented, we are required to promptly commence a 
review of the species' critical habitat.

Previous Federal Actions

    Eriogonum pelinophilum was proposed for listing as an endangered 
species on June 22, 1983, and critical habitat was proposed 
concurrently (48 FR 28504). The final rule designating the species as 
endangered, and designating 119.8 acres (ac) (48.5 hectares (ha)), the 
known range of the species at that time, was published on July 13, 1984 
(49 FR 28562). Critical habitat for this species is set forth at 50 CFR 
17.96(a) under the Family Polygonaceae. The currently designated 
critical habitat is in Delta County, Colorado.
    On July 24, 2006, we received a petition, dated July 17, 2006, from 
the Center for Native Ecosystems, the Colorado Native Plant Society, 
and the Uncompahgre Valley Association (collectively referred to as the 
petitioners) requesting that we revise the critical habitat designation 
for Eriogonum pelinophilum. The petition clearly identified itself as a 
petition and included the requisite identification information for the 
petitioners as required in 50 CFR 424.14(a). The petition contained a 
species and habitat description for E. pelinophilum, a description of 
previous Federal actions, a section addressing statutory requirements 
for E. pelinophilum, a description of the various populations and their 
status, a section addressing

[[Page 29458]]

threats to E. pelinophilum, and recommendations regarding critical 
habitat for the species. Potential threats discussed in the petition 
include destruction and modification of habitat, threats from 
herbivory, and threats from inadequate regulatory mechanisms.
    On September 29, 2006, we acknowledged the receipt of the petition 
but stated that given staff and budget limitations we would not be able 
to further address the petition at that time. On November 13, 2006, we 
received a notice of intent to sue dated November 9, 2006, from the 
petitioners regarding our failure to make a 90-day finding on the 
petition to revise Eriogonum pelinophilum critical habitat. On March 3, 
2008, the petitioners filed suit with the United States District Court 
for the District of Colorado for our failure to make a 90-day finding 
on the petition to revise critical habitat for the species. On 
September 30, 2008, we reached a settlement agreement with the 
plaintiffs to submit a 90-day finding on the petition to revise 
critical habitat to the Federal Register by June 15, 2009, and, if the 
petition is considered substantial, submit a 12-month finding to the 
Federal Register by September 21, 2009. This 90-day finding evaluates 
the petition as stipulated in the settlement agreement.

Species Information

    In 1958, Eriogonum pelinophilum was first collected near Hotchkiss, 
in Delta County, Colorado, by Howard Gentry. The species was first 
recognized as its own taxon in 1969, and officially described by James 
Reveal in 1973 (Reveal 1969, pp. 75-76; 1973, pp. 120-122). No other 
locations were identified until 1984 (Colorado Natural Heritage Program 
(CNHP) 1986, p. 1).
    Eriogonum pelinophilum is a low-growing, rounded, densely branched 
subshrub (low shrub with ground-hugging stems) in the buckwheat family 
(Polygonaceae), with dark green, inrolled leaves that appear 
needlelike, and clusters of white to cream colored flowers with 
greenish-red to brownish-red bases and veins at the end of the 
branches. The Eriogonum genus has undergone rapid evolution in the arid 
regions of the West, and, as a native North American genus, is second 
only to the Penstemon (beardtongue) in number of species (roughly 250 
Eriogonum species) (Reveal 2005a, p. 1).
    Eriogonum pelinophilum is estimated to live between 20 and 50 years 
(NatureServe 2008, p. 5). Flowering typically occurs from late May to 
early September with individual flowers lasting fewer than 3 days 
(Bowlin et al. 1992, p. 298). Reproduction requires a pollinator. Over 
50 species of insects visit E. pelinophilum flowers; approximately 25 
are native bees, and 18 are native ants (Bowlin et al. 1992, pp. 299-
300). Some fruits are removed by harvester ants (Bowlin et al. 1992, p. 
299); however, no information is available on species that may disperse 
seeds.
    Eriogonum pelinophilum has been considered a close relative of, or 
synonymous with, E. clavellatum and a close relative of E. contortum 
(Reveal 2006, p. 3). The species is currently recognized as a distinct 
species (Reveal 2005b, p. 1; Kartesz in litt. 2009, p. 1). E. 
pelinophilum is allied to, but distinct from, E. clavellatum, and both 
are distinct from E. contortum (Reveal 2006, p. 3). Morphological and 
distributional differences also occur between E. pelinophilum, E. 
contortum, and E. clavellatum. E. pelinophilum has white flowers and 
occurs in Delta and Montrose Counties, Colorado; E. contortum has 
yellow flowers and occurs farther north in Mesa and Garfield Counties, 
Colorado, and Grand County, Utah (Spackman et al. 1997, E. pelinophilum 
page). E. pelinophilum is shorter, measuring 2 to 4 inches (in) (0.5 to 
1 decimeters (dm)), has smaller involucres (bracts below the flowers) 
of 0.12 to 0.14 in (3 to 3.5 millimeters (mm)), with petals all the 
same length. E. clavellatum is taller measuring 4 to 8 in (1 to 2 dm), 
has larger involucres, 0.16 to 0.18 in (4 to 4.5 mm), with two 
different sized petals, and is only known from Montezuma County, 
Colorado, and adjacent San Juan Mountain Counties in Utah and New 
Mexico (Spackman et al. 1997, E. pelinophilum page; Reveal 2005c, p. 
1).

Critical Habitat

Background

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

[[Page 29459]]

listing would be inadequate to ensure the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality 
Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat.

Habitat Information

    Eriogonum pelinophilum is endemic to the rolling clay (adobe) hills 
and flats immediately adjacent to the communities of Delta and 
Montrose, Colorado. The plants extend from near Lazear, east of Delta, 
on the northern end of the species' range, to the southeastern edge of 
Montrose in Delta and Montrose Counties, Colorado, and occur from 5,180 
to 6,350 feet (ft) (1,579 to 1,965 meters (m)) in elevation (CNHP 2006, 
p. 3; 2009, spatial data; NatureServe 2008, pp. 4-5; USFWS 2009, Table 
1). The known occurrences exist within an area roughly 11.5 miles (mi) 
(18.5 kilometers (km)) by 28.5 mi (45.6 km) (CNHP 2009, spatial data). 
The area where E. pelinophilum occurs is dry, receiving an average of 8 
to 9 in. (20 to 23 centimeters (cm)) of precipitation a year (Western 
Regional Climate Center 2009a, p. 1; 2009b, p. 1). The soils where E. 
pelinophilum is found are described as whitish, alkaline (pH over 7), 
clay soils of the Mancos shale formation. They are part of the Billings 
Series, known for their fine texture and weak, unstable structure 
(NatureServe 2008, p. 4). In addition, the soils are calcareous 
(containing calcium carbonate). Plants are generally found within 
swales or drainages where there is more moisture than surrounding 
areas. These swales are generally located in low-lying areas that have 
rolling topography, and steeper, more barren slopes above them. Plants 
near Delta at lower elevation areas are associated with small areas 
where snow lingers because of north- and east-facing aspects (Ewing and 
Glenne 2009, p. 2).
    Eriogonum pelinophilum occurs in plant communities characterized by 
low species diversity, low productivity, and minimal canopy cover 
(NatureServe 2008, p. 4). The associated vegetation is sparse, with E. 
pelinophilum generally one of the dominant species (CNHP 1987, Table 
2). In lower elevations near Delta, the dominant plant species is 
Atriplex corrugata (mat saltbrush); at higher elevations near Montrose, 
the dominant plant species is Artemesia nova (black sagebrush), 
although A. corrugata is still abundant (Southwest Regional Gap 
Analysis Project 2004, spatial data). Other species associated with E. 
pelinophilum include Atriplex confertifolia (shadscale), Atriplex 
gardneri (Gardner's saltbush), Picrothamnus desertorum (formerly 
Artemisia spinescens) (bud sagebrush), Xylorhiza venusta (charming 
woodyaster), and another local endemic, Penstemon retrorsus (Adobe 
Hills beardtongue) (CNHP 1987, Table 2; Coles 2006, p. 1; NatureServe 
2008, p. 4).
    In the following sections, several terms are used that refer to 
groupings of Eriogonum pelinophilum. Element Occurrences (EOs) are 
defined by Natural Heritage Programs as areas where a species is or was 
located. For E. pelinophilum, EO specifications have been developed 
that lump one to many polygons (sites) based on a standardized maximum 
separation distance, in this case 1.2 mi (2 km) across suitable 
habitat, and 0.6 mi (1 km) across unsuitable habitat (CNHP 2007, p. 1). 
We use the term `sites' to define areas that contain an EO. EOs are 
meant to approximate populations. Although not explicitly stated, we 
believe that the populations cited by the petitioners are E. 
pelinophilum EOs identified as of 2006.

 Evaluation of Information Contained in the Petition

    The petitioners state that 16 populations of Eriogonum pelinophilum 
existed in 2006, containing 30,000 to 60,000 individuals total, and 
that 8 historical occurrences have been fully extirpated (Reveal 2006, 
p. 2). The petitioners describe general threats to the species' 
habitat, and specific threats to each of the 16 E. pelinophilum 
populations. The petitioners give reasons why revising critical habitat 
for E. pelinophilum is prudent and determinable, and describe the need 
as immediate because several of the threats the species faces are 
growing in magnitude and immediacy. The petitioners claim that critical 
habitat must be revised because the currently designated habitat omits 
an area that is now known to contain the largest and most biologically 
important populations of the species. Further, they say that the 
current designation is inadequate for ensuring recovery of the species. 
The petitioners made recommendations of critical habitat locations in 
their petition.
    We used the information provided in the petition to assess the 
status of Eriogonum pelinophilum. We also used information in our 
files, including the annual report we receive each January from the 
Colorado Natural Heritage Program (CNHP 2009, pp. 1-81), new E. 
pelinophilum locations from BIO-Logic Environmental (TriState 2004, 
map; Boyle in litt. 2009, map), and geospatial layers. Geospatial 
layers included land ownership, locations of conservation easements, 
and locations of BLM Areas of Critical Environmental Concern.

Population Status

    According to CNHP, 20 Eriogonum pelinophilum EOs currently exist 
(CNHP 2009, pp. 1-81; USFWS 2009, Table 1). Of these 20 EOs, 7 have not 
been located again in over 20 years and are considered historical. A 
survey was conducted at an additional EO (015), where no plants were 
found (CNHP 2009, pp. 1-81; USFWS 2009, Table 1). The petitioners cite 
a map showing seven extirpated E. pelinophilum locations (Reveal 2006, 
p. 2). These locations are not included in the CNHP database. We have 
no information on how these extirpations were determined, their exact 
locations, if they were portions of other EOs, or how many plants were 
lost; therefore, they are not included in our assessments of 
populations.
    We are aware of two additional populations of Eriogonum 
pelinophilum that are not incorporated into the CNHP database, and 
that, based on appropriate separation distances, would comprise two new 
EOs (see Table 1). One site has fewer than 100 plants and the other 
site has an estimated 500 plants (TriState 2004, map; Boyle in litt. 
2009, map). Table 1 provides a comparison of populations cited by the 
petitioners to known EOs, and land management or ownership status.
    Of the 12 EOs where Eriogonum pelinophilum is currently known to 
exist (not counting the 2 newly discovered EOs), 2 are ranked by CNHP 
as A, 6 are ranked as B, 3 are ranked as C, and 1 is ranked as D (CNHP 
2009, pp. 1-81; USFWS 2009, Table 1). An A rank represents E. 
pelinophilum occurrences with the largest size, highest number of 
individuals, and the best-quality habitat; a D rank represents 
occurrences with the smallest size, the lowest number of

[[Page 29460]]

individuals, and the worst-quality habitat (CNHP 2007, pp. 1-2; 2009, 
pp. 1-81; USFWS 2009, Table 1).

Table 1. Colorado Natural Heritage Program (CNHP) Eriogonum pelinophilum Element Occurrences (EOs) compared with
  populations cited in the petition. 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 found during subsequent visits. Included are two newly discovered EOs not yet numbered by CNHP,
                 seven historical EOs, and one EO in which no plants were recently found (015).
----------------------------------------------------------------------------------------------------------------
                                                                                          Land Management, with
              EO Number                       EO Rank            Petition Population       Rough Estimates of
                                                                                          Ownership Percentage
----------------------------------------------------------------------------------------------------------------
001.................................  B......................  a, Lawhead Gulch.......  private
003.................................  B......................  d, North Selig Canal...  33% BLM-66% private
004.................................  B......................  g, Olathe South........  private
006.................................  B......................  h, North Mesa..........  private
011.................................  C......................  i, North Fairview......  50% BLM-50% private
012.................................  B......................  n, Sunshine Road.......  5% BLM-95% private
014.................................  A......................  f, Candy Lane/Peach      BLM
                                                                Valley................
016.................................  C......................  p, Dry Cedar Creek.....  BLM
018.................................  A......................  o, Wacker Ranch/         70% BLM-20% Colorado
                                                                Fairview South........   State (CNAP)-10%
                                                                                         private
024.................................  D......................  j, Montrose Northeast..  private
025.................................  B......................  e, Selig Canal.........  90% BLM-10% private
041.................................  B......................  new, discovered in 2007  66% BLM-33% private
none................................  none...................  new, discovered in 2004  33% BLM-66% private
none................................  none...................  new, discovered in 2008  BLM
015.................................  F......................  considered extirpated    private
                                                                in petition...........
007.................................  H, C...................  b, Peach Valley........  private
013.................................  H, C...................  l, Cedar Creek.........  private
017.................................  H, C...................  m, Oak Grove Road......  private
019.................................  H, C...................  c, Star Nelson Airport.  private
021.................................  H, C...................  k, Montrose East.......  private
022.................................  H, C...................  k, Montrose East.......  private
023.................................  H, C...................  not included in          unknown
                                                                petition..............
----------------------------------------------------------------------------------------------------------------

    The most recent rangewide population estimate for all Eriogonum 
pelinophilum EOs ranked A through D, which does not include the two 
newly discovered populations, is 276,000 individuals on 575 ac (233 ha) 
of currently occupied habitat (CNHP 2009, pp. 1-81; USFWS 2009, Table 
1). Roughly 46 percent of the habitat is in private ownership, and 54 
percent is managed by either the Bureau of Land Management (BLM) or 
Colorado Natural Areas Program (CNAP) (CNHP 2009, pp. 1-81; USFWS 2009, 
Table 1). Approximately 14 percent of the total currently occupied 
habitat is covered by conservation easements, located on privately 
owned land. Of the 14 known E. pelinophilum EOs, including the 2 newly 
discovered populations, 4 occur wholly on private land; 6 occur on a 
combination of BLM and private lands; 1 occurs on BLM Colorado State 
(Colorado Natural Areas), and private lands; and 3 occur wholly on BLM 
land (see Table 1).
    We attribute the large difference between the rangewide population 
estimate from the 2006 petition (30,000 to 60,000 individuals; Reveal 
2006, p. 2), and our 2009 estimate (276,000 individuals), to increased 
survey efforts that occurred in 2007 near Fairview South (EO 018), 
where the known locations of Eriogonum pelinophilum and number of 
individuals greatly increased (CNHP 2009, EO 18; Ferguson 2007, pp. 2, 
4). Survey intensity has not been consistent in the different EOs, so 
plant numbers at each EO may not be representative of the true 
abundance. As a general rule, plant estimates that are not based on a 
sampling protocol tend to underestimate the number of individuals at 
any given location.

Critical Habitat Evaluation

    The existing critical habitat for Eriogonum pelinophilum, as 
designated in 1984, encompasses 119.8 ac (48.5 ha) and one population 
(Lawhead Gulch, EO 001), which was then the entire known range of the 
species (49 FR 28565). Within that designation, only about 65 ac (26 
ha) of habitat remains occupied (based on a geospatial analysis); 
approximately 2,000 individual plants persist. By comparing to 
currently known CNHP EOs, the critical habitat designation for E. 
pelinophilum includes approximately 65 of 575 ac (26 of 233 ha) of 
currently occupied habitat, or only 11 percent, and 2,000 of 276,000 
individuals, or only 0.7 percent (USFWS 2009, Table 1).

Finding

    In making this finding, we relied on information provided by the 
petitioners, sources cited by the petitioners, and information readily 
available in our files. We evaluated that information in accordance 
with 50 CFR 424.14(c). Our process for making this 90-day finding under 
section 4(b)(3)(D) of the Act and section 50 CFR 424.14(c) of our 
regulations is limited to a determination of whether the information in 
the petition meets the ``substantial scientific and commercial 
information'' threshold.
    We have assessed information provided by the petitioners and 
available in our files. The critical habitat designation from 1984 
includes approximately 11 percent of habitat known to be currently 
occupied and 0.7 percent of individual Eriogonum pelinophilum plants. 
In addition, E. pelinophilum has special protections in portions of 
only four extant EOs (on four private land sites); roughly a third of 
all the known areas currently occupied by the species is on private 
land with no protections from destruction or adverse modification of 
habitat.
    Under section 3 of the Act, critical habitat is to include the 
areas essential to the conservation of the species. Conservation is 
intended to bring the species to the point at which the

[[Page 29461]]

measures provided under the Act are no longer necessary, i.e., the 
species is recovered. Critical habitat designations identify, to the 
extent known and using the best scientific and commercial data 
available, habitat areas containing the essential physical and 
biological features that provide for requisite life cycle needs of the 
species (areas on which are found the PCEs laid out in the appropriate 
quantity and spatial arrangement for the conservation of the species). 
The petitioners have presented substantial information to indicate that 
the critical habitat for Eriogonum pelinophilum, as designated, may not 
represent the entire area containing the physical and biological 
features essential to the conservation of the species. Only a small 
proportion of the currently known habitat and individuals are included, 
only the northernmost portion of the species' range is represented, and 
areas outside of the designation are only provided special protections 
in portions of 4 of the remaining 13 populations. Habitat is often 
dynamic, and a species' range may move from one area to another over 
time. We recognize that critical habitat designated at a particular 
point in time may not include all of the habitat areas we may later 
determine are necessary for the recovery of the species. The known 
habitat areas occupied by E. pelinophilum have changed since critical 
habitat designation, and identification and designation of currently 
known occupied habitat may be essential to the conservation of the 
species.
    On the basis of our evaluation of new occupied sites provided in 
the petition and in our files, we find that the petition presents 
substantial information indicating that revising critical habitat for 
Eriogonum pelinophilum under the Act may be warranted. Therefore, we 
are initiating a status review to determine if a revision to critical 
habitat for E. pelinophilum is warranted under the Act, and if so, how 
we would intend to proceed with such a revision.

References Cited

    A complete list of all references cited in this document is 
available, upon request, from the Western Colorado Ecological Services 
Office (see FOR FURTHER INFORMATION CONTACT).

Author

    The primary authors of this notice are the staff members of the 
U.S. Fish and Wildlife Service, Western Colorado Ecological Services 
Office (see FOR FURTHER INFORMATION CONTACT).

Authority

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

    Dated: June 15, 2009
Rowan W. Gould
Acting Director, U.S. Fish and Wildlife Service
[FR Doc. E9-14709 Filed 6-19-09; 8:45 am]
BILLING CODE 4310-55-S