[Federal Register Volume 75, Number 138 (Tuesday, July 20, 2010)]
[Proposed Rules]
[Pages 42059-42066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17709]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2010-0023]
[MO 92210-0-0008-B2]


Endangered and Threatened Wildlife and Plants; 90[dash]Day 
Finding on a Petition To List the Giant Palouse Earthworm (Driloleirus 
americanus) as Threatened or Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of petition finding and initiation of status review.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list the giant Palouse earthworm 
(Driloleirus americanus) as threatened or endangered under the 
Endangered Species Act of 1973, as amended, (Act) and to designate 
critical habitat. Based on our review, we find that the petition 
presents substantial scientific or commercial information indicating 
that listing the giant Palouse earthworm as threatened or endangered 
may be warranted. Therefore, with the publication of this notice, we 
are initiating a review of the status of the species to determine if 
listing the giant Palouse earthworm is warranted. To ensure that this 
status review is comprehensive, we are requesting scientific and 
commercial data and other information regarding this species. Based on 
the status review, we will issue a 12-month finding on the petition, 
which will address whether the petitioned action is warranted, as 
provided in section 4(b)(3)(B) of the Act.

DATES: To allow us adequate time to conduct this review, we request 
that we receive information on or before September 20, 2010. Please 
note that if you are using the Federal eRulemaking Portal (see 
ADDRESSES section, below), the deadline for submitting an electronic 
comment is Eastern Time on this date.

ADDRESSES: You may submit information by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. In 
the box that reads ``Enter Keyword or ID,'' enter the docket number for 
this notice, which is docket number FWS-R1-ES-2010-0023. Check the box 
that reads ``Open for Comment/Submission,'' and then click the Search 
button. You should then see an icon that reads ``Submit a Comment.'' 
Please ensure that you have found the correct rulemaking before 
submitting your comment.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R1-ES-2010-0023; 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).
    After the date specified in DATES, you must submit information 
directly to the Field Office (see FOR FURTHER INFORMATION CONTACT 
section below). Please note that we might not be able to address or 
incorporate information that we receive after the above requested date.

FOR FURTHER INFORMATION CONTACT: Ken Berg, Manager, Washington Fish and 
Wildlife Office, 510 Desmond Dr. SE, Suite 102, Lacey, WA 98503; by 
telephone (360-753-9440); or by facsimile (360-753-9405). If you use a 
telecommunications device for the deaf (TDD) please call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Request for Information

    When we make a finding that a petition presents substantial 
information indicating that listing a species may be warranted, we are 
required to promptly review the status of the species (status review). 
For the status review to be complete and based on the best available 
scientific and commercial information, we request information on the 
giant Palouse earthworm (GPE) from governmental agencies, Native 
American Tribes, the scientific community, industry, and any other 
interested parties. We seek information on:
    (1) The species' biology, range, and population trends, including:
    (a) Habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species and/or 
its habitat.
    (2) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Endangered 
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), which 
are:
    (a) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence.
    (3) Information on grassland or other natural habitats within the 
range of the species including distribution of known or potential 
habitats; information on ongoing or future activities in potential GPE 
habitat; information on life history of the GPE and evidence supporting 
its endogeic (earthworms that live in mineral soil and consume organic 
matter within the soil or at the soil-litter interface) or anecic 
(earthworms that inhabit deep vertical burrows and emerge at night to 
consume relatively fresh plant detritus on the surface) life-history 
mode; and information on other native or nonnative earthworm 
distributions in the range of the species.
    If, after the status review, we determine that listing the GPE is 
warranted, we will propose critical habitat (see definition in section 
3(5)(A) of the Act), under section 4 of the Act, to the maximum extent 
prudent and determinable at the time we propose to list the species. 
Therefore, within the geographical range currently occupied by the GPE, 
we request data and information on:

[[Page 42060]]

    (1)What may constitute ``physical or biological features essential 
to the conservation of the species,''
    (2)where these features are currently found, and
    (3)whether any of these features may require special management 
considerations or protection.
    In addition, we request data and information on ``specific areas 
outside the geographical area occupied by the species'' that are 
``essential to the conservation of the species.'' Please provide 
specific comments and information as to what, if any, critical habitat 
you think we should propose for designation if the species is proposed 
for listing, and why such habitat meets the requirements of section 4 
of the Act.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Submissions merely stating support for or opposition to the action 
under consideration without providing supporting information, although 
noted, will not be considered in making a determination. Section 
4(b)(1)(A) of the Act directs that determinations as to whether any 
species is an endangered or threatened species must be made ``solely on 
the basis of the best scientific and commercial data available.''
    You may submit your information concerning this status 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 you submit a hardcopy that includes personal identifying 
information, you may request at the top of your document that we 
withhold this personal identifying 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.
    Information and supporting documentation that we received and used 
in preparing this finding, will be available for you to review at 
http://www.regulations.gov, or you may make an appointment during 
normal business hours at the U.S. Fish and Wildlife Service, Washington 
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Background

    Section 4(b)(3)(A) of the Act requires that we make a finding on 
whether a petition to list, delist, or reclassify 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 scientific or commercial 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 conduct a status review, which is subsequently summarized in 
our 12-month finding.

Previous Federal Action(s)

    On August 30, 2006, we received a petition from three private 
citizens and three other parties (the Palouse Prairie Foundation, the 
Palouse Audubon Society, and Friends of the Clearwater) to list the GPE 
(Driloleirus americanus). On October 9, 2007, we published a 90-day 
finding stating that the August 30, 2006, petition did not provide 
substantial scientific or commercial information to indicate that 
listing the GPE may be warranted (72 FR 57273). On January 24, 2008, 
the petitioners filed a lawsuit in the U.S. District Court, Eastern 
District of Washington against the U.S. Department of the Interior and 
the Service challenging the ``not substantial'' decision (Palouse 
Prairie Foundation et al. v. Dirk Kempthorne, et al., No. 2:08-cv-0032-
FVS). On February 12, 2009, the District Court denied the Appellants' 
motion for summary judgment and granted summary judgment in favor of 
the Service, upholding the October 9, 2007, determination. The U.S. 
Court of Appeals for the Ninth Circuit affirmed the District Court 
ruling on June 14, 2010.

History of Current Petition

    On July 1, 2009, we received a petition dated June 30, 2009, from 
Friends of the Clearwater, Center for Biological Diversity, Palouse 
Audubon, Palouse Prairie Foundation, and Palouse Group of the Sierra 
Club (petitioners) requesting that the GPE be listed as threatened or 
endangered and that critical habitat be designated under the Act. The 
petitioners also requested that we list the GPE as a threatened or 
endangered species either in the entirety of its range, or in the 
Palouse bioregion as a significant portion of its range. The petition 
clearly identified itself as such and included the requisite 
identification information for the petitioners, as required by 50 CFR 
424.14(a).
    The July 1, 2009, petition was accompanied by a letter from Samuel 
W. James, an earthworm taxonomist, and additional information about GPE 
and threats to the species that was not available to the Service during 
our evaluation of the August 30, 2006, petition. In an August 5, 2009, 
letter to the petitioners, we responded that we had reviewed the 
information presented in the petition and determined that issuing an 
emergency regulation temporarily listing the species under section 
4(b)(7) of the Act was not warranted. We also stated that we would not 
be able to further address the petition at that time, but that we would 
complete the action when funding became available in fiscal year 2010. 
This finding addresses the petition.

Species Information

    The GPE was first described by Smith in 1897, based on a collection 
near Pullman, Washington. At the time of this collection, Smith stated: 
``this species is very abundant in that region of the country and their 
burrows are sometimes seen extending to a depth of over 15 feet'' 
(Smith 1897, pp. 202-203). Although only a few specimens have been 
collected, early descriptions indicate that the GPE can be as long as 3 
feet (0.9 meters). Some consider the GPE to be an endemic species (a 
species native to a particular region), that uses grassland sites with 
good soil and native vegetation of the Palouse bioregion (James 1995, 
p. 1; Niwa et al. 2001, p. 34). The Palouse bioregion is an area of 
rolling hills and deep soil in southeastern Washington and adjacent 
northwestern Idaho.
    The petition acknowledges (Petition, pp. 1, 3) four positively 
identified collections of this species in the past 110 years (Sanchez-
de Leon and Johnson-Maynard 2008, p. 2), compared to the species being 
described as ``very abundant'' in Smith (1897, p. 202). Three of the 
collection locations were in the Palouse River basin (one between 
Moscow and Pullman, one at Moscow Mountain, Idaho (Petition cover 
letter, p. 2), and one at a prairie remnant, Smoot Hill Biological 
Preserve (Sanchez-de Leon and Johnson-Maynard 2008, p. 6)). The fourth 
location was in the hills west of Ellensburg, Washington (Fender and 
McKey-Fender 1990, p. 358), outside of the Palouse bioregion. We were 
unable to clearly match the dates of collection with the exact

[[Page 42061]]

locations based on information in the petition and references. However, 
several GPE were collected in 1978 near Pullman and Moscow (Petition, 
p. 5; Johnson-Maynard 2009b, p. 2), a collection was made in 1988 by 
Johnson and Johnson at a forest clearing near Moscow (Sanchez de Leon 
and Johnson-Maynard 2008, p. 2; Johnson-Maynard 2009b, p. 3), and a 
specimen was collected in 2005 by a University of Idaho graduate 
student near Pullman (Johnson-Maynard 2009b, p. 3; Mullins 2006, p. 1). 
The Ellensburg, Washington specimen was collected before 1990 
(Petition, p. 5; Fender and McKey-Fender 1990, p. 358). Follow-up 
surveys in previous collection locations were unsuccessful in locating 
the GPE. Several of these collection locations had major ground-
disturbing activities. One site was converted into a parking lot and 
another was ``very disturbed with graveling'' (Petition, p. 5). James 
(2000, p. 5) states that only a small portion of suitable earthworm 
habitat in the Columbia Basin area has been surveyed. Since 2005, two 
Driloleirus genus earthworms have been documented, one south of Moscow, 
Idaho, and one near Leavenworth, Washington (University of Idaho 2008, 
p. 1; Johnson-Maynard 2009b, p. 3), but the specimen could not be 
verified to species level due to damage during collection.
    The GPE is described as an anecic earthworm (James 2000, p. 5) 
based on its functional role in the soil ecosystem. Anecic earthworms 
are the largest and longest lived of the three earthworm types (James 
2000, p. 2; 1995, p. 6), and transport fresh plant material from the 
soil surface to subterranean levels. We reviewed the 2006 petition 
within the context of this information. However, after additional 
scrutiny, James (2009, p. 3) determined that, based on its pale 
pigmentation, the species is endogeic rather than anecic. Endogeic 
earthworms live entirely in the soil and rely on subsurface organic 
matter, rather than transporting plant material below ground. Life-
history forms aside, we accept the characterization of the GPE as a 
species (Smith 1897, p. 203; Fender and McKey-Fender 1990, p. 372; 
Fender 1995, pp. 53-54). While the naming conventions of the GPE has 
changed over time, (Megascolides americanus in 1897 (Smith 1897, p. 
203); changed to Driloleirus americanus by 1990 (Fender and McKey-
Fender 1990, p. 372), there is no information provided in the petition 
or in our files that would indicate scientific disagreement about its 
status as a species.

Evaluation of Information for this Finding

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations at 50 CFR 424 set forth the procedures for adding a species 
to, or removing a species from, the Federal Lists of Endangered and 
Threatened Wildlife and Plants. A species may be determined to be an 
endangered or threatened species due to one or more of the five factors 
described in section 4(a)(1) of the Act:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    In considering what factors might constitute threats, we must look 
beyond the exposure of the species to a factor to evaluate whether the 
species may respond to the factor in a way that causes actual impacts 
to the species. If there is exposure to a factor and the species 
responds negatively, the factor may be a threat and, during the 
subsequent status review, we attempt to determine how significant a 
threat it is. The threat is significant, if it drives, or contributes 
to, the risk of extinction of the species such that the species may 
warrant listing as threatened or endangered as those terms are defined 
in the Act. However, the identification of factors that could impact a 
species negatively may not be sufficient to compel a finding that the 
information in the petition and our files is substantial. The 
information must include evidence sufficient to suggest that these 
factors may be operative threats that act on the species to the point 
that the species may meet the definition of threatened or endangered 
under the Act.
    In making this 90-day finding, we evaluated whether information 
regarding threats to the GPE, as presented in the petition and other 
information available in our files, is substantial, thereby indicating 
that the petitioned action may be warranted. Our evaluation of this 
information is presented below.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of the Species' Habitat or Range

Petition Information on Habitat Loss and Fragmentation in the Palouse 
Bioregion

    The petitioners claim that the GPE is threatened by habitat 
conversion, loss, and fragmentation from agriculture and urban sprawl 
in the Palouse region (Petition, pp. 1, 7). The petitioners cite 
Sanchez-de Leon and Johnson-Maynard (2008, p. 1) who state that 
combined effects of land-use change, habitat fragmentation, and 
competitive interactions have decimated native earthworms. James (2009, 
p. 1) states that earthworms are sensitive to habitat disturbance, and 
that to find indigenous earthworms one must work in undisturbed or 
mildly disturbed vegetation. Undisturbed vegetation is rare in the 
Palouse bioregion, since the native grassland habitat has been reduced 
to less than 1 percent of the pre-agricultural extent (Petition, p. 8; 
James 2009, p. 1; Noss et al. 1995, p. 74). The petition lists a dozen 
locations in the Palouse area that contain prairie remnants (Petition, 
p. 5). In a survey of four prairie remnants and adjacent conservation 
reserve program (CRP) fields (areas set aside from farming and mainly 
planted with nonnative grasses), Sanchez-de Leon and Johnson-Maynard 
(2008, pp. 1, 4; Petition, p. 4) found one GPE in one prairie remnant. 
Sanchez-de Leon and Johnson-Maynard (2008, p. 6; Petition, p. 5) 
observed that many remaining prairie remnants are not suitable for 
tillage (preparing land for the raising of crops by plowing) as they 
are often steep, rocky, or contain shallow soil and, therefore, may 
also be less suitable for earthworms (Sanchez-de Leon and Johnson-
Maynard 2008, p. 6; Petition, p. 5).

Evaluation

    Information in the petition and in the Service's files indicates 
native habitats are rare and fragmented in the Palouse bioregion. The 
estimated amount of habitat conversion varies, but several studies have 
determined that the conversion of native habitats is very high: 99.9 
percent of Palouse prairie habitats to agriculture (Noss 1995, p. 74); 
94 percent of the grasslands and 97 percent of the wetlands in the 
Palouse bioregion have been converted to crop, hay, or pasture (Black 
et al. 1998, pp. 9-10); 21 percent of previously forested lands have 
been converted to agriculture or urban uses; and less than 1 percent of 
the original bunchgrass prairie habitat remains (Gilmore 2004, p. 3; 
Donovan et

[[Page 42062]]

al. 2009, p. 1). Although the Palouse prairie grasslands habitat has 
been extensively impacted by agriculture and development, very limited 
information exists on the specific habitat needs of the GPE. If the 
species is endemic to good soil (``good'' soil was not defined in 
references) and native vegetation of the Palouse bioregion, as stated 
by some scientists (James 1995, p. 1; Niwa et al. 2001, p. 34), the 
best available information may indicate that remaining prairie remnants 
are not the best habitat for the GPE (Sanchez-de Leon and Johnson-
Maynard 2008, p. 6).
    Although its habitat may be limiting, there also may be sampling 
challenges that could bias available information on GPE. Sanchez-de 
Leon and Johnson-Maynard (2008, p. 7) explained that hand sampling 
methods may underestimate abundance of deep-burrowing species; while 
James (2009, p. 3) states that, if present, an endogeic earthworm such 
as the GPE should be moderately easy to find.

Petition Information on Habitat Loss and Fragmentation in the 
Ellensburg Area

    The GPE occurs both in the Palouse bioregion and in central 
Washington near Ellensburg. The petitioners claim that, similar to the 
Palouse bioregion, the areas around Ellensburg have also been 
extensively modified by agriculture (Adolfson Associates 2005, p. 2; 
Petition, p. 8).

Evaluation

    There is little information in the petition or the Service's files 
on the habitat associated with the GPE collected near Ellensburg. 
Fender and McKey-Fender (1990) described the location as ``in the hills 
west of Ellensburg,'' and they noted that the range of GPE extends into 
``treeless areas'' (pp. 358, 366). The Adolfson Associates report 
(2005, p. 1) was limited to the city and the urban growth area around 
Ellensburg. The location of the Ellensburg collection site is 
uncertain, and the petitioners did not provide additional information 
on potential GPE habitat other than the Adolfson Associates report. 
James (2000, p. 8; 1995, p. 2) confirms that GPE collection data 
provides little detailed information about habitat types, and he 
included the Ellensburg collection site, among others, as being 
generally located in what is now agricultural land, grassland, and 
shrubland.

Petition Information on Habitat Impacts from Agriculture and Urban 
Development

    The petitioners claim that earthworms or their grassland habitats 
are influenced by soil disturbance, tillage, traffic, food sources, 
chemical and pesticide residues, and soil microclimate (Jennings et al. 
1990, p. 75; Edwards & Bohlen 1996b, pp. 283-289; Edwards et al. 1995, 
pp. 200-201; USDA-NRCS 2001, p. 2; Petition, p. 10). The petitioners 
also claim that it is appropriate to use other earthworms as proxies 
for effects to the GPE as long as they are similar biologically and 
ecologically (Sappington et al. 2001, p. 2869; Caro et al. 2005, p. 
1821; Petition, p. 10).
    An Australian study showed 3 years of tillage reduced earthworm 
burrow density by nearly 90 percent (Chan 2004, p. 89; Petition, p. 
10), and that tillage changes water infiltration into soil through 
burrows. In the Palouse bioregion, tillage removes the original 
topsoil, which may reduce earthworm burrow densities, soil aeration, 
soil infiltration rates, and the amount of organic matter available to 
the GPE for forage (Veseth 1986b, p. 2; Petition, pp. 10-11). All 
original topsoil has been removed from 10 percent of Palouse cropland, 
and another 60 percent of cropland has lost 25 to 75 percent of the 
topsoil (Veseth 1986b, p. 2).
    Moisture, temperature, and food availability influence earthworm 
populations in general, and earthworms need the organic matter found in 
the topsoil that agriculture removes (James 2000, pp. 1-2; Petition, p. 
11). Bare soil also increases effects of flooding, drought, or other 
weather conditions due to the lack of vegetation that buffers soil from 
extreme moisture, dryness, and temperature fluctuations. These 
fluctuations can temporarily or permanently make soils unusable by 
earthworms (James 2000, pp. 1-2; Petition, p. 11).
    Soil compaction from livestock grazing or farm machinery can affect 
earthworms by making burrowing and feeding more difficult (James 2000, 
p. 9), by decreasing soil pore size and thereby decreasing nutrient 
retention and changing the soil food web (Niwa et al. 2001, p. 7), or 
by favoring nonnative earthworms that prefer course soils rather than 
the fine soils preferred by the GPE (Fender and McKey-Fender 1990, p. 
364; Petition, p. 11). In addition to soil compaction, livestock 
grazing changes the quality and accessibility of detrital material, 
decreasing organic matter available to earthworms through conversion of 
herbage to partly digested clumps of organic matter (James 2000, p. 9; 
Petition, p. 14).
    The petitioners also claim that chemicals and some soil chemistry 
effects, notably a reduction in soil pH, negatively impact earthworms 
(Petition, p. 11). Soil pH is a factor that often greatly affects 
earthworm populations, both in numbers of individuals and numbers of 
species; in general there are fewer species in the more acidic soils 
below pH 5 than in more alkaline soils (Edwards and Lofty 1977, p. 
234). Nitrogenous fertilizers reduce pH levels (Ma et al. 1990, p. 76).
    Pesticide applications can be extremely toxic to earthworms, and 
have indirect effects on vegetation (Edwards and Bohlen 1996a, pp. 282-
288). Like other farmers, growers in the Palouse region apply many 
herbicides (Hall et al. 1999, p. 12 Table 3.08; Kellog et al. 2000, p. 
2), including Triazine (Atrazine) herbicides that may have negative 
effects on earthworm numbers (Edwards and Bohlen 1996a, p. 285), and 
which may include indirect effects due to their influence on weeds as a 
source of supply of organic matter on which worms feed in the soil. 
Traces of Triazine herbicides were found in surface-water samples from 
the Palouse River basin (Wagner et al. 1995, p. 15, Table 4). The 
petition also states no-till farming uses herbicides rather than 
tilling for weed-control, resulting in higher herbicide use in no-till 
fields than is used in tilled fields (Veseth 1986a, p. 1; Petition, p. 
12).
    The petitioners claim that urban sprawl and rural development 
negatively impact habitats in the Palouse and Ellensburg areas. The 
Ellensburg, Washington; Pullman Washington; and Moscow, Idaho 
populations increased by approximately 76, 88, and 73 percent since 
1980, respectively (Petition, p. 12; www.census.gov, figure 4). The 
petition states that urban development compacts soils, removes topsoil, 
and favors nonnative invasive earthworms (Petition, pp. 12-13). New 
road construction affects remaining prairie remnants (Petition, p. 13), 
including a potential rerouting of U.S. 95 through a large prairie 
remnant in the Palouse bioregion.

Evaluation

    Information in the petition and the Service's files indicates that 
tillage may affect earthworms, and the use of surrogate species (such 
as other earthworms) may be useful for evaluating potential effects to 
the GPE, provided such studies are conducted with appropriate 
scientific controls and precautions. Caro et al. (2005, p. 1821)

[[Page 42063]]

states that ``for substitute species to be appropriate, they should 
share the same key ecological or behavioral traits that make the target 
sensitive to environmental disturbance and the relationship between 
populations vital rates and level of disturbance should match that of 
the target; these conditions are unlikely to pertain in most 
circumstances and the use of substitute species to predict endangered 
populations' responses to disturbance is questionable.''
    Chan's study (2004, p. 90) compared effects to an anecic 
Megascolecidae (the same family as the GPE) by assessing burrows in 
pastures, no-till agriculture, one-pass tilled agriculture; and two-
pass conventional tilled agriculture (Chan 2004, p. 94). The effect of 
tillage on earthworm abundance was usually negative because tilling 
causes physical damage and burial of residues; alternatively it can 
increase abundance of some earthworm species due to incorporation of 
residues into the soil (Chan 2004, p. 90). Tillage decreases burrow 
density, and related water conduction into the soil (Chan 2004, p. 94). 
Some preservation of earthworm burrows can be achieved by adopting 
conservation tillage techniques (no-till) (Chan 2004, p. 96).
    Since the earthworm species used in Chan's studies was anecic, 
whereas the GPE may be endogeic, the effects of tilling within the plow 
zone may not be applicable to the GPE. Edwards and Bohlen (1996b, p. 
215) also stated that earthworm populations were larger in soil that 
was not cultivated and had crops drilled directly. No-till agriculture 
occurs on about five percent of Palouse acreage considered in a survey 
by Hall (1999, p. 15). More tillage destroys burrows, while less 
tillage leaves residues and improves environments for earthworms (USDA-
NRCS 2001, p. 3).
    Tillage and cultivation impacts to the GPE may vary depending on 
whether it is has an endogeic or anecic life-history form. James (2009, 
p. 3) believes the GPE is endogeic, and lives entirely in the soil, 
feeding on organic matter in varying stages of decomposition. According 
to James, a large endogeic species is probably more susceptible to 
habitat changes than an anecic species, and that agricultural 
conversion stabilizes soil organic matter at a low level, with only the 
lowest quality and most resistant organic matter remaining. Because of 
these low levels of organic material, the GPE could starve, even if it 
could survive mechanical disturbances and chemicals associated with 
agricultural conversion (James 2009, p. 4).
    Degradation of the land base from topsoil losses, changes in soil 
structure and chemistry, and reduced soil organic matter has resulted 
from tillage methods, crop rotations, and fertilization practices used 
historically in the Palouse region (Jennings et al. 1990, p. 75). There 
was no detailed information provided on agriculture activities in the 
Ellensburg area outside of the urban growth area. Furthermore, no 
information was provided by the petitioner, and no information is 
available in our files on the extent of livestock ranching impacts in 
the Palouse or Ellensburg areas.
    The petitioners cite soil chemistry effects, notably a reduction in 
soil pH, as having deleterious effects on earthworms, and state that 
generally, earthworms do not thrive in soils with a pH below 5 
(Petition, p. 11); however, our review of information on pH effects to 
earthworms showed both supportive and contradictory information 
relevant to the petitioners' claims. Fender (1995, p. 56) stated that 
Argilophiline worms (a tribe of earthworms that includes the GPE) 
appear to have higher tolerance than Lumbricidae (night crawler 
earthworms) for low pH (acid) soils, high clay, and resinous low-
nitrogen plant litter. A tribe is a taxonomic ranking between the 
family and genus rankings in Linnaean taxonomy. Sanchez-de Leon and 
Johnson-Maynard (2008, pp. 5, 7) found more nonnative earthworms in 
lower pH soils (pH 5.9 to 6.2) in Conservation Reserve Program (CRP) 
sites, than in prairie remnants with higher pH soils (pH 6.3 to 6.6). 
As a result, the researchers question whether it is possible that lower 
pH correlates with some other non-measured soil parameter, such as 
previous fertilizer applications and resultant increased organic matter 
(Sanchez-de Leon and Johnson-Maynard 2008, p. 7).
    Ma et al. (1990, p. 75) found different results: the lower the pH 
(the more acidic), the smaller the endogeic earthworm populations. The 
lower pH resulted in larger accumulations of organic matter or thatch, 
indicating decreased rates of decomposition and microbial 
mineralization (Ma et al. 1990, p. 79). A Natural Resource Conservation 
Service (USDA-NRCS) report states inorganic fertilizers can have a 
positive impact on earthworms due to increased biomass (USDA-NRCS 2001, 
p. 5), but that earthworms do not thrive in soils with a pH below 5 
(USDA-NRCS 2001, p. 2; Edwards and Lofty 1977, p. 234). In summary, 
studies regarding earthworms and soil pH indicate that earthworm 
response may vary with species, location, or other attributes and it is 
unclear how the GPE may react to different soil acidity, which makes it 
difficult to determine if reduced pH is negatively impacting the 
species.
    Information in the petition and available in the Service's files on 
the GPE and pesticides (used here as a general term, including 
herbicides, fungicides, and insecticides) found that some chemical 
applications may impact earthworms, and potentially the GPE. Edwards 
and Bohlen (1996, p. 283) state that the toxicities of different 
chemicals and pesticides on earthworms vary greatly, and summarize the 
toxicities of many pesticides. Edwards and Bohlen (1996, p. 285; USDA-
NRCS 2001, p. 6) state that some herbicides, including Triazine 
herbicides, are moderately toxic to earthworms. Carbamates are toxic to 
earthworms (USDA-NRCS 2001, p. 6). Wagner et al. (1996, pp. 21-22) 
listed multiple pesticides used in a subset of the Palouse bioregion, 
and found several, including Triazine (Atrazine), in water samples (pp. 
15-16). No information was provided in the petition on the use of, or 
surveys of, pesticides in the Ellensburg area.
    We acknowledge several differences between information presented by 
the petitioner and other information available in our files with regard 
to claims made in the 2006 and 2009 GPE petitions. The 2006 petition 
stated that the GPE was endemic to the Palouse bioregion (Petition, p. 
2); the 2009 petition expanded the petitioned area, stating that the 
species is native to the Columbia River basin of eastern Washington and 
northern Idaho (Petition, p. 1). We evaluated the petitioner's 2006 
claim that the species may be affected by agricultural practices that 
use chemicals and result in soil compaction, but were unable to verify 
that these activities presented a threat (72 FR 57273).
    The 2009 petition includes a letter of support from Samuel W. 
James, Biodiversity Institute, University of Kansas (James 2009, pp. 1-
4). Mr. James states that he is the only earthworm taxonomist operating 
in the United States, and has extensive experience in biodiversity 
inventory of earthworms. In one of the references provided in support 
of the 2006 petition, James (1995, p. 12), stated that he can 
``confidently state that nothing is known of the impact of any 
management practice on any Columbia River Basin native earthworm 
species.''
    For purposes of the 2009 petition, James now believes the GPE is 
endogeic and not anecic as he previously thought, and states that, ``I 
have no doubt that Driloeirus americanus is in danger of

[[Page 42064]]

extinction'' (James 2009, p. 1). James also states that ``this re-
evaluation is significant to the petition to list D. americanus, 
because a large endogeic species is probably more susceptible to 
habitat changes than an anecic'' (James 2009, p. 3). This finding fully 
considers the new information presented by the petitioner. Our review 
for purposes of a 90-day finding is limited to a determination of 
whether the information in the petition meets the ``substantial 
information'' threshold. We do not conduct additional research at this 
point, nor do we subject the petition to rigorous critical review.
    In summary, our review and the 2009 petition indicate there has 
been extensive agricultural conversion in the Palouse bioregion, and 
the petition states that similar conversion has taken place in the 
central Washington area. Other threats identified by the petitioner 
include habitat fragmentation, urban development, pesticides, and soil 
compaction. The petitioner presents a reasonable argument that the GPE 
may be exposed to the above threats in the entirety of its range or in 
what may constitute a significant portion of its range (Petition, p. 
3). Although the species' responses to these threats are still 
undeterminable at this time due to the lack of specific information on 
the species' biology and habitat needs, James (2009, p. 3) provides a 
logical explanation as to why a species like the GPE may be susceptible 
to these threats. The limited and fragmented remnant deep-soil habitats 
in the Palouse bioregion, and the potential impacts to any GPE from 
ongoing agriculture activities, including tilling, may negatively 
impact the species. However, the magnitude of these threats could 
differ, depending on whether the species exhibits an anecic or endogeic 
life history. The species may be affected by pesticides, although based 
on the best available information, we are unable to verify or quantify 
these threats at this time.
    In James (2000, p. 10), the author identifies certain research and 
monitoring priorities, including experimentally testing hypotheses of 
the mechanisms through which habitat disturbance, exotic species 
invasions, and other human-caused factors may affect native (earthworm) 
species, beginning with those species potentially threatened such as 
the GPE. In his 2009 letter, James states that in his opinion, the GPE 
is in danger of extinction (James 2009, p. 1); we have no other expert 
opinion or conflicting information in our files in this regard.
    We acknowledge there are gaps in the data presented by the 
petitioner, and that we have very little specific information on the 
GPE in our files. Nonetheless, in conclusion, we find that the 
information provided in the petition, as well as other information in 
our files, presents substantial scientific or commercial information 
indicating that the petitioned action may be warranted due to the 
present or threatened destruction, modification, or curtailment of the 
species' habitat or range.

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

    The petition did not identify overutilization for commercial, 
recreational, scientific, or educational purposes as a potential threat 
to the GPE. In our October 9, 2007, 90-day finding (72 FR 57273) we 
acknowledged that three GPE individuals were inadvertently killed 
during research activities. Researchers have yet to find an efficient 
survey method that reliably finds the GPE without damaging it (Johnson-
Maynard 2009b, p. 7). While we continue to acknowledge mortality of 
several GPE individuals due to scientific collection, we do not have 
population size information indicating that the loss of three 
individuals or the sampling risk in the future may be a threat to the 
continued existence of the species. Therefore, we do not have 
substantial information indicating that overutilization for commercial, 
recreational, scientific, or educational purposes may present a threat 
to the continued existence of the GPE.

C. Disease or Predation

    The petition did not identify any threats to the GPE related to 
disease or predation; however, we found some relevant information 
available in our files. Hendrix and Bohlen (2002, p. 802) state that 
imported nonnative earthworms may be vectors for plant or animal 
pathogens or viruses, but do not correlate this potential threat to the 
GPE. Although James (1995, p. 11) states that predation on earthworms 
can be accentuated by tilling the soil and exposing earthworms to bird 
predators, the correlation to the GPE is inconclusive given 
uncertainties regarding its anecic or endogeic life-history form. 
Because of these uncertainties, we are unable to determine if the 
amount of predation would rise to the level of a threat to the species 
at this time. Other impacts from agricultural tilling are discussed in 
more detail under Factor A. In summary, we conclude neither the 
petition nor information in our files presents substantial scientific 
or commercial information to document that disease or predation 
presents a threat to the continued existence of the GPE.

D. The Inadequacy of Existing Regulatory Mechanisms

Information Provided in the Petition

    The petition claims that there are no Federal, State, or local 
regulations that specifically protect the GPE or its habitat. The 
Washington Department of Fish and Wildlife identifies the GPE as a 
species of concern (WDFW 2009, p. 1), although this status does not 
provide any regulatory protection for the species. The petition 
indicates that the Palouse Subbasin Management Plan, developed as part 
of the Northwest Power and Conservation Council review process for the 
subbasins in the Columbia River Basin, contains three objectives (7, 8, 
and 15) that are relevant to the GPE and its habitat. Objective 7 is 
designed to protect native grassland habitat within the Palouse 
subbasin; however, this objective is voluntary in nature and does not 
provide specific protection for the GPE. Objective 8 is designed to 
restore lost or degraded grassland habitat within the Palouse subbasin 
by identifying feasible opportunities for restoration. This objective 
does not define ``feasible opportunities,'' and appears to rely on a 
voluntary approach, which provides no regulatory protection for GPE 
habitat. Objective 15 is designed to increase wildlife habitat value on 
agricultural land for focal species; however, it is also voluntary in 
nature and does not provide specific protection for the GPE or its 
habitat.
    The petition states that the Forest Service, Bureau of Land 
Management, Fish and Wildlife Service, Environmental Protection Agency, 
and NOAA Fisheries signed a memorandum of understanding (MOU) agreeing 
to implement the Interior Columbia Basin Strategy. The MOU commits the 
agencies to use information developed during the Interior Columbia 
Basin Ecosystem Management Project in future planning processes; 
however, neither the MOU nor the accompanying strategy specifically 
mention the GPE or create any regulatory mechanisms to provide 
protections for its habitat (petition p. 15).
    According to the petition, the regulation of earthworms imported 
into the United States is based on the Federal Plant Pest Act (7 U.S.C. 
150aa-150jj, May 23, 1957, as amended 1968, 1981, 1983, 1988 and 1994), 
under which the Animal and Plant Health Inspection Service controls 
imports containing soil that might carry

[[Page 42065]]

pathogens. The petition cited Hendrix and Bohlen (2002, p. 809), who 
state, ``In the absence of pathogens, it appears that any earthworm 
species may be imported, that is, there is no specific consideration of 
earthworms as invasive organisms.'' The petition claims that regulation 
has not been effective in reducing the importation of nonnative 
earthworm species to the United States from other parts of the world, 
which poses a direct threat to the existence of the GPE and other 
native earthworm species (see Factor E for more information on impacts 
from nonnative earthworms).

Evaluation

    Information in the petition and available in Service files 
indicates that there are limited regulatory mechanisms that may be 
protective of the GPE or its habitat. As we found in Factor A, the 
petition provided sufficient information indicating the species may be 
threatened by destruction, modification, or curtailment of its habitat 
or range from agricultural conversion, habitat fragmentation, urban 
development, pesticides, and soil compaction. Below, in Factor E, we 
discuss how the petitioner provided sufficient information indicating 
nonnative earthworm species impacts or competition may also present a 
threat to the GPE. Since we determine that the petition provided 
sufficient information indicating that both habitat loss and 
introduction of nonnative earthworms may be a threat to the GPE, the 
inadequacy of regulatory mechanisms to control these factors may also 
be a threat. Although the magnitude of this threat is presently 
indeterminable based on uncertainties regarding the species' biology, 
habitat needs, and its anecic or endogeic life history, we find that 
the information provided in the petition, as well as other information 
in our files, presents substantial scientific or commercial information 
indicating that the petitioned action may be warranted due to the 
inadequacy of existing regulatory mechanisms.

E. Other Natural or Manmade Factors Affecting the Species' Continued 
Existence

Information Provided in the Petition

    The petitioners claim that the GPE is threatened by invasive 
nonnative earthworms (Petition, p. 1). In a 3-year study of earthworms 
in the Palouse region of eastern Washington and Idaho, Sanchez-de Leon 
and Johnson-Maynard (2008, p. 8) found a dominance of invasive exotic 
earthworms in both native and nonnative grasslands. Exotic (nonnative) 
earthworms can invade new habitats, change the ecological soil 
functions, and displace native species (Hendrix and Bohlen 2002, p. 
805; Petition, p. 16). Earthworm populations are dominated by nonnative 
earthworms in agricultural sites and native prairie remnants in the 
Palouse region (Fauci and Bezdicek 2002, p. 257; Sanchez-de Leon and 
Johnson-Maynard 2008, pp. 7-8; Petition p. 16). Habitat conversion 
favors invasion of nonnative earthworm species that are better adapted 
to a disturbed or degraded environment (Petition, p. 16; James 1995, p. 
5). Some exotic earthworm species may be highly competitive with a 
deeper-dwelling species like the GPE. James (2000, p. 2) states that 
invasive earthworm species present a potential threat to the GPE. He 
describes the loss of a deep-dwelling Illinois earthworm species as an 
example, and states that the GPE is probably endogeic (deep-dwelling) 
as well (James 2009, p. 3).
    We acknowledge that there are substantial weaknesses in 
extrapolating data from an Illinois species to the GPE, since we have 
no information that would indicate the responses of the Illinois 
species and the GPE to invasive earthworms would be similar. However, 
since we have no conflicting information in our files on this potential 
threat to the GPE, we are deferring to the expert's opinion for 
purposes of this 90-day finding.
    The petitioners also describe the existence of introduced annual 
grasses and noxious weeds in the Palouse region, including: Kentucky 
bluegrass, crops, cheatgrass, and yellow-star thistle (Gilmore 2004, 
pp. 1-87), and assume these plants do not provide the same quality and 
quantity of earthworm forage as native vegetation (Petition, p. 17). 
The petitioners also claim that climate change resulting in changing 
weather patterns will impact the GPE (Petition, p. 17), since the 
amount of annual precipitation is a parameter that influences GPE 
habitat (Fender & McKey-Fender 1990, p. 366).

Evaluation

    Information in the petition and available in our files indicates 
that other natural or manmade factors, including potential nonnative 
earthworm species impacts or competition may present a threat to the 
GPE. In a recent study in the Palouse region of southeastern Washington 
and northern Idaho, Sanchez-de Leon and Johnson-Maynard compared four 
paired sites of prairie remnants and CRP lands (2008, pp. 2, 8). The 
main purpose of the study was to characterize and compare native and 
exotic earthworm populations in two important grassland ecosystems of 
the Palouse region, native prairie remnants and CRP set asides.
    One invasive earthworm species (Aporrectodea trapezoides) made up 
90 percent of the total earthworm density in the paired comparison 
study (Sanchez-de Leon and Johnson-Maynard 2008, p. 4). The researchers 
also observed that A. trapezoides may compete with GPE for food in 
upper layers of soil (Sanchez-de Leon and Johnson-Maynard 2008, p. 6). 
One GPE was found at one of the four prairie remnant study sites used 
for the study. The researchers state that the rarity of native 
earthworms in their prairie site surveys lends support for the theory 
that native earthworms are being replaced by nonnative earthworms, even 
in visibly intact remnants of fragmented habitats (Sanchez-de Leon and 
Johnson-Maynard 2008, p. 6).
    The researchers also present several scenarios regarding the GPE 
and nonnative earthworms: The GPE may be able to coexist with some 
species; some nonnative species may be replacing the GPE; or the GPE 
may remain only in lower quality prairie remnants (shallow rocky soils) 
(Sanchez-de Leon and Johnson-Maynard 2008, p. 6). The researchers 
propose that a combination of extensive habitat fragmentation in the 
Palouse region, low habitat quality of remaining prairie remnants, and 
possible competitive interactions with exotic earthworms, decimated GPE 
populations at their study sites (Sanchez-de Leon and Johnson-Maynard 
2008, p. 6).
    The Service agrees with the petitioner that native plant 
communities in the Palouse are susceptible to invasion by nonnative 
plants (Gilmore 2004, pp. 1-26; James 2000, p. 8), that domination of 
deep-soil sites by Kentucky bluegrass is common, and that in shallow 
soils cheatgrass and yellow-star thistle weeds compete with native 
grasslands. However, we have no information from the petitioner or our 
files that documents a threat to the GPE from these nonnative plants.
    Although the petition expresses a concern about future climate 
change and its effects on the GPE, it does not present information or 
data in this regard. The Service evaluated information available in our 
files related to this potential threat. Lawler and Mathias (2007, pp. 
19-20) investigated possible climate change impacts to vascular plants, 
stating that plants may mature earlier creating potential mismatches 
between pollinators and plants, parasites and hosts, and herbivores and 
food sources; increased summer temperatures and decreased

[[Page 42066]]

summer precipitation may lead to changes in distribution of some plant 
species; sagebrush steppe and grasslands may contract while dry forests 
and woodlands expand; and plant distribution changes will depend in 
part on plant water-use efficiencies. Based on the best available 
information, it is difficult to predict how or if future changes in 
growth or distribution of vegetation will affect local conditions for 
weeds, native vegetation, or both. It is also unclear how or if this 
will have an adverse or beneficial impact on the GPE or its habitat.
    We acknowledge that the magnitude of the above threats is uncertain 
because we lack specific information on the species' biology and 
habitat needs. In addition, the species' exposure and response would 
likely differ, depending on whether it exhibits an anecic or endogeic 
life history. However, we find that the information provided in the 
petition, as well as other information in our files, presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted due to other natural or man-made 
factors, in particular due to the presence of nonnative invasive 
earthworms.

Finding

    On the basis of our determination under section 4(b)(3)(A) of the 
Act, we find that the petition presents substantial scientific or 
commercial information indicating that listing the GPE throughout its 
entire range may be warranted. This finding is based on information 
provided under factors A, D and E.
    Because we have found that the petition presents substantial 
information indicating that listing the GPE may be warranted, we are 
initiating a status review to determine whether listing the GPE under 
the Act is warranted. The petition asserts that the GPE is also 
threatened or endangered throughout a significant portion of its range. 
Accordingly, a significant portion of the range analysis will be 
conducted during the status review if we determine that listing the 
species in its entire range is not warranted.
    The ``substantial information'' standard for a 90-day finding 
differs from the Act's ``best scientific and commercial data'' standard 
that applies to a status review to determine whether a petitioned 
action is warranted. A 90-day finding does not constitute a status 
review under the Act. In a 12-month finding, we will determine whether 
a petitioned action is warranted after we have completed a thorough 
status review of the species, which is conducted following a 
substantial 90-day finding. Because the Act's standards for 90-day and 
12-month findings are different, as described above, a substantial 90-
day finding does not mean that the 12-month finding will result in a 
warranted finding.

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov and upon request from the Washington Fish 
and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Author

    The primary authors of this notice are the staff members of the 
Eastern Washington Field Office.

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


    Dated: July 2, 2010
Wendi Weber
Acting Director, U.S. Fish and Wildlife Service
[FR Doc. 2010-17709 Filed 7-19-10; 8:45 am]
BILLING CODE 4310-55-S