Federal Register, Volume 79 Issue 151 (Wednesday, August 6, 2014) 2014 Federal Register, 79 FR 46041-46087; Centralized Library: U.S. Fish and Wildlife Service -

[Federal Register Volume 79, Number 151 (Wednesday, August 6, 2014)]
[Proposed Rules]
[Pages 46041-46087]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-18368]

[[Page 46041]]

Vol. 79

Wednesday,

No. 151

August 6, 2014

Part V

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Withdrawal of the
Proposed Rules To List Graham's Beardtongue (Penstemon grahamii) and
White River Beardtongue (Penstemon scariosus var. albifluvis) and
Designate Critical Habitat; Proposed Rule

Federal Register / Vol. 79 , No. 151 / Wednesday, August 6, 2014 /
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2013-0081; Docket No. FWS-R6-ES-2013-0082;
4500030113]
RIN 1018-AY95; 1018-AZ61

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rules; withdrawal.

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SUMMARY: We, the U.S. Fish and Wildlife Service, withdraw the proposed
rule to list Graham's beardtongue (Penstemon grahamii) and White River
beardtongue (Penstemon scariosus var. albifluvis) as threatened species
throughout their ranges under the Endangered Species Act of 1973, as
amended. This withdrawal is based on our conclusion that the threats to
the species as identified in the proposed rule no longer are as
significant as we previously determined. We base this conclusion on our
analysis of new information concerning current and future threats and
conservation efforts. We find the best scientific and commercial data
available indicate that the threats to the species and their habitats
have been reduced so that the two species no longer meet the statutory
definition of threatened or endangered species. Therefore, we are
withdrawing both our proposed rule to list these species as threatened
species and our proposed rule to designate critical habitat for these
species.

DATES: The proposed rules published on August 6, 2013 (78 FR 47590 and
78 FR 47832), are withdrawn as of August 6, 2014.

ADDRESSES: The withdrawal of our proposed rules and supplementary
documents are available on the Internet at http://www.regulations.gov
at Docket Nos. FWS-R6-ES-2013-0081 and FWS-R6-ES-2013-0082, and at
http://www.fws.gov/mountain-prairie/species/plants/2utahbeardtongues/.
Comments and materials received, as well as supporting documentation
used in the preparation of these withdrawals, are also available for
public inspection, by appointment, during normal business hours at:
U.S. Fish and Wildlife Service, Utah Ecological Services Field Office,
2369 West Orton Circle, Suite 50, West Valley City, Utah 84119;
telephone 801-975-3330.

FOR FURTHER INFORMATION CONTACT: Larry Crist, Field Supervisor, U.S.
Fish and Wildlife Service, Utah Ecological Services Field Office, 2369
West Orton Circle, Suite 50, West Valley City, UT 84119; by telephone
at 801-975-3330. Persons who use a telecommunications device for the
deaf (TDD) may call the Federal Information Relay Service (FIRS) at
800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish this document. Under the Endangered Species
Act (Act), if a species is determined to be an endangered or threatened
species throughout all or a significant portion of its range, we are
required to promptly publish a proposal in the Federal Register and
make a determination on our proposal within 1 year. On August 6, 2013,
we issued proposed rules to list Graham's beardtongue and White River
beardtongue as threatened species and to designate critical habitat
because we determined there were threats from energy development, and
cumulative threats from livestock grazing, invasive weeds, small
population sizes, and climate change (78 FR 47590 and 78 FR 47832).
However, this document withdraws our proposed rules to list the
Graham's beardtongue and White River beardtongue as threatened species
under the Act and designate critical habitat for these species because
we have now determined that the threats to the two species have been
reduced such that listing is not warranted.
The basis for our action. Under the Act, we can determine that a
species is an endangered or threatened species based on any of five
factors: (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. We have determined that the threats to the two
species have been reduced such that listing is not warranted.
Therefore, this document withdraws our proposed rules to list the
Graham's beardtongue and White River beardtongue as threatened species
under the Act and designate critical habitat.
Peer review and public comment. We sought expert opinion from
several appropriate and independent specialists to ensure that our
proposed rules were based on scientifically sound data, assumptions,
and analyses. We invited these peer reviewers to comment on our listing
and critical habitat proposals. We also considered all comments and
information received during the comment periods.

Background--Graham's Beardtongue

Previous Federal Actions

For a detailed description of Federal actions concerning Graham's
beardtongue, please refer to our January 19, 2006, proposed rule to
list the species and designate critical habitat (71 FR 3158); our
December 19, 2006, withdrawal of the proposed rule to list the species
and designate critical habitat (71 FR 76024); and our August 6, 2013
proposed rules to list the species and designate critical habitat (78
FR 47590; 78 FR 47832). In the document we published on December 19,
2006 (71 FR 76024), we addressed public comments, analyzed available
data, and withdrew the proposed listing and critical habitat rule for
Graham's beardtongue that we published on January 19, 2006 (71 FR
3158), concluding that threats to Graham's beardtongue, particularly
energy development, were not as significant as previously believed and
were not likely to endanger the species in the foreseeable future
throughout all or a significant portion of its range.
On December 16, 2008, the Center for Native Ecosystems, Southern
Utah Wilderness Alliance, Utah Native Plant Society (UNPS), and
Colorado Native Plant Society filed a complaint in the United States
District Court for the District of Colorado challenging the withdrawal
of our proposal to list Graham's beardtongue. The court ruled in favor
of the plaintiffs on June 9, 2011, vacating our December 2006
withdrawal and reinstating our January 2006 proposed rule.
In 2007, the Service, Bureau of Land Management (BLM), Uintah
County, Utah Department of Natural Resources (DNR) and Utah School and
Institutional Trust Lands Administration (SITLA) drafted a Conservation
Agreement (CA) for the conservation of Graham's beardtongue and its
ecosystem. Although this agreement was not signed by all parties and
only partially implemented, several of the parties contributed to the
conservation of the species in the spirit of the agreement. In
particular, BLM signed the agreement and fulfilled their commitments by
funding surveys, monitoring for plant demographics, funding a
population viability analysis, and avoiding and minimizing impacts to

[[Page 46043]]

the species and its habitat from surface disturbances (Service 2007,
pp. 11-12). Uintah County and Utah DNR also funded surveys for the
species from 2008 to 2010.
The best available information for Graham's beardtongue has changed
considerably since our January 2006 proposed rule was written and
withdrawn. On August 6, 2013, we published a revised proposed listing
rule (78 FR 47590) and a proposed critical habitat rule to reflect new
information regarding Graham's beardtongue (78 FR 47832). In these same
rules we also proposed to list and designate critical habitat for White
River beardtongue. Upon publication of our proposed rules, we opened a
60-day comment period that closed on October 7, 2013.
Following publication of our proposed rules, the same parties that
drafted the 2007 CA for Graham's beardtongue reconvened to evaluate
species' surveys and distribution information and reassess the
conservation needs of both the White River and Graham's beardtongues.
Based on this evaluation, the parties completed a new conservation
agreement (2014 CA, entire) that specifically addresses the threats
identified in our 2013 proposed rule to list the two species (78 FR
47590, August 6, 2013). In the 2014 CA, the parties committed to
conservation actions including establishing 17,957 hectares (ha)
(44,373 acres (ac)) of occupied and unoccupied suitable habitat as
protected conservation areas with limited surface disturbance and
avoidance of plants by 91.4 m (300 ft). Additionally, the BLM agreed to
avoid surface disturbances within 91.4 m (300 ft) of Graham's and White
River beardtongue plants within and outside of conservation areas on
BLM land (see Summary of Factors Affecting the Species, Energy
Exploration and Development and Ongoing and Future Conservation
Efforts). The parties also developed conservation measures to address
the cumulative impacts from livestock grazing, invasive weeds, small
population sizes, and climate change by continuing species monitoring,
monitoring climate, reducing impacts from grazing when and where
detected, and controlling invasive weeds (see Summary of Factors
Affecting the Species, Cumulative Effects from All Factors and Ongoing
and Future Conservation Efforts). The 2014 CA is discussed in detail
below.
On May 6, 2014 (79 FR 25806), we announced the reopening of the
public comment period on our August 6, 2013, proposed listing and
proposed designation of critical habitat rules. At that time we also
announced the availability of a draft economic analysis (DEA), a draft
environmental assessment (EA), the draft 2014 CA, and an amended
required determinations section of the proposal (78 FR 47590). We also
announced the availability of 2013 survey results for the plants and
our intent to hold a public information meeting and public hearing on
May 28, 2014, in Vernal, Utah (79 FR 25806).

Species Information

Taxonomy and Species Description
Graham's beardtongue was described as a species in 1937 as an
herbaceous perennial plant in the plantain family (Plantaginaceae). For
most of the year when the plant is dormant, it exists as a small,
unremarkable basal rosette of leaves. During flowering, the plant
becomes a ``gorgeous, large-flowered penstemon'' (Welsh et al. 2003, p.
625). Similar to other species in the beardtongue (Penstemon) genus,
Graham's beardtongue has a strongly bilabiate (two-lipped) flower with
a prominent infertile staminode (sterile male flower part)--the
``beardtongue'' that typifies the genus. The combination of its large,
vivid pink flower and densely bearded staminode with short, stiff,
golden-orange hairs makes Graham's beardtongue quite distinctive. Each
year an individual plant can produce one to a few flowering stems that
can grow up to 18 centimeters (cm) (7.0 inches (in)) tall (with some
exceptions), with 1 to 20 or more flowers on each flowering stem.
Distribution and Trends
When we published the proposed listing rule in 2006, there were 109
plant records, or ``points,'' across Graham's beardtongue's known
range, and the total species' population size was estimated at 6,200
individuals. Point data represent a physical location where one or more
plants were observed on the ground. Point data are usually collected by
GPS and stored as a ``record'' in a geographic information system
database.
Since 2006, BLM, Uintah County, the Utah and Colorado Natural
Heritage Programs and several private parties have completed many
surveys for this species. The range of Graham's beardtongue is
essentially the same as it was in 2006: A horseshoe-shaped band about
129 kilometers (80 miles) long and 9.6 km (6 mi) wide extending from
the extreme southeastern edge of Duchesne County in Utah to the
northwestern edge of Rio Blanco County in Colorado (Figure 1). However,
over the last 7 years we have identified larger numbers of plants and a
greater distribution of the species across its range. We now know of
5,076 points representing 40,333 plants--over six times the number of
plants known at the time of our 2006 proposed rule and 8,631 more
plants than known at the time of our 2013 proposed rule (BLM 2013d,
UNHP 2013b, CNHP 2014). Although the overall number of known plants has
increased with additional surveys, this does not mean the total
population is increasing. Rather, many parties have surveyed a greater
area and now have a more complete picture of how many total Graham's
beardtongue individuals exist. We assume that the current known range
of this species has not changed substantially from what it was
historically, because even though we have found more plants, the
boundaries of the known range of the species have not changed.
We mapped all plant points, including those from new 2013 survey
data, and grouped them into populations (Figure 1). First, we followed
standardized methods used by the national network of Natural Heritage
Programs to identify the species' element occurrences (EO). EOs are
plant points that are grouped together based on geographic proximity
(NatureServe 2004, p. 6). Natural Heritage Program criteria
(NatureServe 2004, p. 6) classify points into discrete EOs if they are
within 2 km (1.2 mi) of each other and separated by suitable habitat.
We did not always have specific habitat suitability information and in
these cases relied on the 2 km (1.2 mi) distance as our primary
classification factor. Next, we included updated survey information
collected from 2006 to the present and determined the number of
distinct EOs. At the time of our 2013 proposed rule, we had documented
24 EOs: 20 in Utah and 4 in Colorado. An additional 8,631 plants found
in the 2013 field season were added to our EO mapping in 2014, which
added five new populations and merged several other populations
together, resulting in no change to the total number of populations
(Figure 1). For the purpose of this document, we consider EOs to be
synonymous with populations and hereafter will use the term
``populations'' when describing the distribution of the species.
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Our understanding of the distribution of plants among populations
has changed slightly since our 2013 proposed rule, reflecting the
additional plants found during the 2013 surveys. We now estimate that
one population (referred to as population 20) comprises about 18.3
percent of the species' total population, compared to our estimate of
23 percent in 2012. Population 19 contains the most plants with 27.8
percent of the entire population. Populations 19, 17, 13 and 20
combined comprise 91 percent of the known number of plants. In 2006 and
2013, we noted that population 20 was an important connectivity link
between the Utah and Colorado populations of this species, and we still
consider this to be true, especially given the large number of plants
found in this population.
Approximately 52 percent of the total known population of Graham's
beardtongue occurs on BLM-managed

[[Page 46045]]

lands, with the remainder on non-Federal lands with State and private
ownership (Table 1). A land exchange between the BLM and the State of
Utah planned for 2014 will decrease the number of known plants on
Federal lands and increase the plants on State lands by 2.2 percent
(see Inadequacy of Existing Regulatory Mechanisms, below).

Table 1--Number of Individuals of Graham's Beardtongue by Landowner
[* Data as presented in the 2013 proposed rule includes surveys through 2012; ** Data as presented in this 2014
withdrawal includes surveys through 2013.]
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Number of Percent of
individuals total (2013 Number of Percent of
(2013 proposed proposed individuals total (2014)**
rule)* rule)* (2014)**
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Federal......................................... 18,678 59 19,986 49.6
Private......................................... 8,137 26 8,525 21.1
State........................................... 4,887 15 11,822 29.3
Tribal.......................................... 0 0 0 0
Total........................................... 31, 702 100 40,333 100
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Population monitoring for Graham's beardtongue has been restricted
to a handful of sites, thus limiting our knowledge of the population
trend throughout its range. Our long-term monitoring information comes
from two Graham's beardtongue sites in Utah within population 13 (see
Figure 1) from 2004 to 2012, two additional sites within population 13
from 2010 to 2012, and one site in Colorado. The population 13 sites
were stable and perhaps slowly increasing with a stochastic population
growth rate just above one (McCaffery 2013a, p. 15). Recruitment and
flowering for these Utah sites was low and sporadic, indicating that
conditions were not always suitable for flowering to occur (McCaffery
2013a, p. 9). Although these two sites were stable, we do not know if
this represents the trend of every population of the species across its
range. The Colorado monitoring site showed that plant density remained
similar between the 1986 to 1990 monitoring effort, and a renewed
monitoring effort in 2005. In addition, the number of plants increased
between 2009 to 2011 (BLM 2011, p. 6-7) but was lower in both years
than the number counted in 2005. Small population sizes and low
recruitment make this species more vulnerable to stochastic events, and
without concerted conservation efforts, changes in stressors or habitat
conditions may negatively impact the long-term growth of these sites
(McCaffery 2013a, p. 19).
No link was found between reproduction and precipitation on a
regional level, but it is likely that we do not completely understand
the environmental factors affecting reproduction and survival
(McCaffery 2013a, p. 16). A combination of several factors could be
affecting population dynamics of Graham's beardtongue. For example,
herbivory and climate could interact to influence reproduction. Plants
at the Blue Knoll study site were negatively impacted by herbivory from
tiger moth caterpillars (possibly Arctia caja utahensis) (see Grazing,
below), but a cool, wet spring in 2011 may have reduced herbivory on
reproductive plants (Dodge and Yates 2011, pp. 7-8). Further studies
are necessary to determine if herbivory or other factors are driving
population dynamics of this species.
Habitat
Graham's beardtongue is an endemic plant found mostly in exposed
oil shale strata of the Parachute Creek Member and other unclassified
members of the Green River geologic formation including the Douglas
Creek Member. Most populations are associated with the surface exposure
of the petroleum-bearing oil shale Mahogany ledge (Shultz and Mutz
1979, p. 40; Neese and Smith 1982, p. 64). Soils at these sites are
shallow with virtually no soil horizon development, and the surface is
usually covered with broken shale chips or light clay derived from the
thinly bedded shale. Based on data up to 2012, about a third of all
known point locations of plants in our files grow on slopes that are 10
degrees or less, with an average slope across all known points of 17.6
degrees (Service 2013, p. 2). The species occurs at an average
elevation of 1,870 meters (m) (6,134 feet (ft)), with a range in
elevation from 1,426 to 2,128 m (4,677 to 6,982 ft) (Service 2013, p.
4). Individuals of Graham's beardtongue usually grow on southwest-
facing exposures (Service 2013, p. 1).
Graham's beardtongue is associated with a suite of species
similarly adapted to xeric (very dry) growing conditions on highly
basic calcareous shale soils, including saline wildrye (Leymus
salinus), mountain thistle (Cirsium eatonii var. eriocephalum), spiny
greasebush (Glossopetalon spinescens var. meionandra), Utah juniper
(Juniperus osteosperma), two-needle pi[ntilde]on (Pinus edulis), and
shadscale saltbush (Atriplex confertifolia) (UNHP 2013a, entire).
Graham's beardtongue co-occurs with eight other rare species that are
similarly endemic and restricted to the Green River Formation,
including White River beardtongue. Other beardtongue species growing in
the vicinity of Graham's beardtongue include thickleaf beardtongue
(Penstemon pachyphyllus) and Fremont's beardtongue (Penstemon
fremontii) (Fitts and Fitts 2008, pp. 13-28; Fitts and Fitts 2009, pp.
11-26; Fitts 2010, pp. 15-21; Fitts 2014, entire.), and these are
likely important for supporting pollinators.
At higher elevations, Graham's beardtongue is found within sparse
pinon-juniper woodland plant communities and on canyon rims. At lower
elevations Graham's beardtongue is associated with a sparse desert
shrubland dominated by shadscale saltbush.
Biology
Graham's beardtongue individuals live at least 10 years and likely
longer; however, we do not know the plant's average life span (Service
2012a, p. 2). Graham's beardtongue is not as genetically diverse as
other common, widespread beardtongues from the same region (Arft 2002,
p. 5). However, populations 1 through 9 (see Figure 1) have minor
morphological differences from the rest of the Graham's beardtongue
populations (Shultz and Mutz 1979, p. 41) and may, due to geographic
isolation, be genetically divergent from the remainder of the species'
population, although this hypothesis has never been tested.

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Graham's beardtongue usually flowers for a short period of time in
late April through late June. Pollinators and flower visitors of
Graham's beardtongue include the bees Anthophora lesquerellae, Osmia
sanrafaelae, Osmia rawlinsi, the sweat bees Lasioglossum sisymbrii and
Dialictus sp., and the masarid wasp Pseudomasaris vespoides, which is
thought to be the primary pollinator for Graham's beardtongue
(Lewinsohn and Tepedino 2007, p. 245; Dodge and Yates 2008, p. 30). At
least one large pollinator, Hunt's bumblebee (Bombus huntii), is known
to visit Graham's beardtongue (71 FR 3158, January 19, 2006), which is
not unexpected due to the relatively large size of Graham's
beardtongue's flowers compared to other beardtongues.
Graham's beardtongue has a mixed mating system, meaning individuals
of this species can self-fertilize, but they produce more seed when
they are cross-pollinated (Dodge and Yates 2009, p. 18). Thus,
pollinators are important for maximum seed and fruit production. Based
on the size of the largest Graham's beardtongue pollinators (i.e.,
Hunt's bumblebee), we expect pollinators are capable of travelling and
transporting pollen for distances of at least 700 m (2,297 ft) (Service
2012b, pp. 8, 12). Therefore, maintaining sufficiently large numbers of
reproducing plants with sufficient connectivity across the species'
population distribution ensures cross-pollination, preserves genetic
diversity, and prevents inbreeding depression (Dodge and Yates 2009, p.
18). Pollinators need a diversity of native plants for foraging,
nesting, and egg-laying sites, and undisturbed places for overwintering
(Shepherd et al. 2003, pp. 49-50). Thus, it is important to protect
vegetation diversity within and around Graham's beardtongue populations
to maintain a diversity of pollinators.

Background--White River Beardtongue

Previous Federal Actions

On November 28, 1983, White River beardtongue was designated as a
category 1 candidate under the Endangered Species Act of 1973, as
amended (Act) (48 FR 53640). Category 1 candidate species were defined
as ``those species for which the Service has on file sufficient
information on biological vulnerability and threat(s) to support
issuance of a proposed rule to list but issuance of the proposed rule
is precluded'' (61 FR 7597, February 28, 1996). In the February 1996
candidate notice of review (CNOR) (61 FR 7596), we abandoned the use of
numerical category designations and changed the status of White River
beardtongue to a candidate under the current definition. We maintained
White River beardtongue as a candidate species in subsequent updated
CNORs up through the publication of the 2013 proposed rule to list the
species.
On September 9, 2011, we reached an agreement with plaintiffs in
Endangered Species Act Section 4 Deadline Litig., Misc. Action No. 10-
377 (EGS), MDL Docket No. 2165 (D. DC) to systematically review and
address the needs of all species listed in our 2010 CNOR, which
included White River beardtongue. On August 6, 2013, we published a
proposed rule to list Graham's and White River beardtongues and a
proposed rule to designate critical habitat for both species (78 FR
47590; 78 FR 47832). As explained above in Background--Graham's
beardtongue, Previous Federal Actions, a new conservation agreement was
completed (2014 CA, entire) to specifically address the threats
identified in our 2013 proposed rule. This conservation agreement along
with the economic analysis of our 2013 proposed critical habitat
designation and other supporting documents were made available for
public review and comment as described above in Background--Graham's
beardtongue, Previous Federal Actions.

Species Information

Taxonomy and Species Description
White River beardtongue is in the plantain family (Plantaginaceae).
It is an herbaceous, shrubby plant with showy lavender flowers. It
grows up to 50 cm (20 in) tall, with multiple clusters of upright
stems. It has long, narrow, green leaves. Like other members of the
beardtongue genus, including Graham's beardtongue, White River
beardtongue has a strongly bilabiate (two-lipped) flower with a
prominent infertile staminode (sterile male flower part), or
``beardtongue.'' Blooming occurs from May into early June, with seeds
produced by late June (Lewinsohn 2005, p. 9).
White River beardtongue was first described as a new species,
Penstemon albifluvis, in 1982 (England 1982, entire). In 1984, the
taxon was described as variety P. scariosus var. albifluvis (Cronquist
et al. 1984, p. 442). P. s. var albifluvis has a shorter corolla and
shorter anther hairs than typical P. scariosus. White River beardtongue
is also unique from P. scariosus because it is endemic to low-elevation
oil shale barrens near the White River along the Utah-Colorado border
(see Habitat below for more information), while typical P. scariosus
habitat occurs at higher elevations on the West Tavaputs and Wasatch
Plateaus of central Utah (Cronquist et al. 1984, p. 442).
Distribution and Trends
The historical range of White River beardtongue has likely not
changed since the species was first described in 1982 (England 1982,
pp. 367-368). White River beardtongue was first discovered along the
north bank of the White River 1 mile upstream from the Ignacio Bridge
(England 1982, p. 367). The historical range was described as occurring
from east central Uintah County, Utah, to Rio Blanco County, Colorado
(England 1982, p. 367).
White River beardtongue's current range extends from Raven Ridge
west of Rangely in Rio Blanco County, Colorado, to the vicinity of
Willow Creek in Uintah County, Utah. The bulk of the species' range
occurs between Raven Ridge and Evacuation Creek in eastern Utah, a
distance of about 30 km (20 mi).

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(Figure 2) (CNHP 2012, entire; UNHP 2012, entire). Herbarium
collections from 1977 to 1998 indicate that the species' range might
extend further west to Willow Creek, Buck Canyon, and Kings Well Road
(UNHP 2012, entire). However, we have not revisited the herbarium
collection locations to confirm the species' presence--it is possible
that the herbarium collections represent individuals of the closely
related and nearly indistinguishable Garrett's beardtongue (Penstemon
scariosus var. garettii). Therefore, we consider these to be unverified
locations and excluded these records from further analysis (Figure 2).
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We do not have complete surveys for White River beardtongue and
thus do not know the total population size for this species. Our best
population estimate is 12,215 individuals (including 792 new plants
that were found during surveys in 2013) (Service 2014b).
In our 2013 proposed rule, we delineated seven populations in the
main portion of White River beardtongue's range using data collected
through 2012. Based on new 2013 survey information, we have now
reanalyzed the data using the methodology explained above under
Graham's beardtongue--Species Information. We now know of 8
populations; 5 populations in Utah and 3 populations in Colorado
(Figure 2). Approximately 61 percent of the known population of White
River beardtongue occurs on BLM land, with the remainder

[[Page 46049]]

occurring on State and private lands (Table 2).

Table 2--Number of Known Individuals of White River Beardtongue by Landowner
[* Data as Presented in the 2013 Proposed Rule Includes Surveys Through 2012; ** Data as Presented in This 2014
Final Rule Includes Surveys Through 2013.]
----------------------------------------------------------------------------------------------------------------
Number of Percent of
individuals total in Number of Percent of
(2013 proposed (2013 proposed individuals total in
rule) * rule) * (2014) ** (2014) **
----------------------------------------------------------------------------------------------------------------
Federal......................................... 7,054 62 7,481 61.2
Private......................................... 3,093 27 3,458 28.3
State........................................... 1,276 11 1,276 10.5
Tribal.......................................... 0 0 0 0
---------------------------------------------------------------
Total....................................... 11,423 100 12,215 100
----------------------------------------------------------------------------------------------------------------

All of our long-term monitoring information for the species comes
from two sites that were monitored from 2004 to 2012 (populations 1 and
6, see Figure 2), and one site that was monitored from 2010 to 2012
(population 3, see Figure 2). At one site, plants declined over this
time and the other two sites increased slightly (McCaffery 2013a, p.
8). Although two of three sites were found to be stable, we do not know
if this finding represents the trend for all populations of the species
across its range, but it represents the best available information on
population trends for the species.
White River beardtongue flowers each year regardless of new
seedling recruitment, in contrast to Graham's beardtongue (McCaffery
2013a, p. 9). Like Graham's beardtongue, White River beardtongue is
vulnerable to stochastic events as well as increases in stressors or
declining habitat conditions (McCaffery 2013a, p. 19). Also like
Graham's beardtongue, no link was found between reproduction and
precipitation on a regional level (McCaffery 2013a, p. 16), but this
issue should be studied on a more local scale. In 2009, a significant
recruitment event occurred in two of the study populations (Dodge and
Yates 2010, pp. 11-12). Many of these seedlings died between 2009 and
2010, but the net result was an increase in population size by the end
of the study (Dodge and Yates 2011, pp. 6, 10). Continued monitoring is
necessary to determine the frequency of recruitment and how this
influences the long-term population trends of this species. In
addition, like Graham's beardtongue, we need further studies to
determine what factors are driving population dynamics of White River
beardtongue.
Habitat
White River beardtongue is restricted to calcareous (containing
calcium carbonate) soils derived from oil shale barrens of the Green
River Formation in the Uinta Basin of northeastern Utah and adjacent
Colorado. The species overlaps with Graham's beardtongue at sites in
the eastern portion of Graham's beardtongue's range.
White River beardtongue is associated with the Mahogany ledge and
Parachute Creek formation. The habitat of White River beardtongue is a
series of knolls and slopes of raw oil shale derived from the Green
River geologic formation (Franklin 1995, p. 5). These soils are often
white or infrequently red, fine-textured, shallow, and usually mixed
with fragmented shale. These very dry substrates occur in lower
elevations of the Uinta Basin, between 1,500 and 2,040 m (5,000 and
6,700 ft), and the species occurs at an average elevation of 1,847 m
(6,060 ft). About one-fifth of all known point locations of White River
beardtongue are on slopes of 10 degrees or less, with an average slope
for all known points of 19.2 degrees (Service 2013, pp. 3-4). White
River beardtongue individuals usually grow on southwest-facing
exposures (Service 2013, p. 1).
Species growing with White River beardtongue include saline
wildrye, mountain thistle, spiny greasebush, Utah juniper, two-needle
pi[ntilde]on, and shadscale saltbush (UNHP 2013, entire), and many oil
shale endemic plant species (Neese and Smith 1982, p. 58; Goodrich and
Neese 1986, p. 283). Other beardtongue species growing in the vicinity
of White River beardtongue include thickleaf beardtongue and Fremont's
beardtongue (Fitts and Fitts 2008, pp. 13-28; Fitts and Fitts 2009, pp.
11-26; Fitts 2010, pp. 15-21; Fitts 2014, pers.comm.) and these are
likely important for supporting pollinators.
Biology
White River beardtongue is long-lived due to the presence of a
substantial and multi-branched woody stem (Lewinsohn 2005, p. 3), and
individual plants can live for 30 years (Service 2012c, p. 3). Most
plants begin to flower when the woody stem reaches 3 to 4 cm (1 to 1.5
in.) in height (Lewinsohn and Tepedino 2005, p. 4), usually in May and
June.
The species is pollinated by a wasp, Pseudomasaris vespoides, and
several native, solitary bee species in the genera Osmia, Ceratina,
Anthophora, Lasioglossum, Dialictus, and Halictus (Sibul and Yates
2006, p. 14; Lewinsohn and Tepedino 2007, p. 235). These pollinators
are medium in size compared to the larger pollinators generally
associated with Graham's beardtongue (see Background--Graham's
beardtongue, Biology, above). White River beardtongue has a mixed
mating system, meaning it can self-fertilize but produces more seed
when it is cross-pollinated (Lewinsohn and Tepedino 2007, p. 234).
Thus, pollinators are important for maximum seed and fruit production.
Based on their medium size, the pollinators of White River
beardtongue are capable of travelling and moving pollen across at least
500-m (1,640-ft) distances (Service 2012b, pp. 8, 13). Although White
River beardtongue has low flower visitation rates by pollinators, there
is no evidence that pollinators are limiting for this species
(Lewinsohn and Tepedino 2007, p. 235). It is important to maintain the
diversity of pollinators by maintaining vegetation diversity for White
River beardtongue because it stabilizes the effects of fluctuations in
pollinator populations (Lewinsohn and Tepedino 2007, p. 236).
We have very little information regarding the genetic diversity of
White River beardtongue. This species, like Graham's beardtongue, is
likely not as genetically diverse as other common, sympatric
beardtongues (Arft 2002, p. 5).

[[Page 46050]]

Summary of Comments and Recommendations

In the proposed rules published on August 6, 2013 (78 FR 47590), we
requested that all interested parties submit written comments on the
proposals by October 7, 2013. We also contacted appropriate Federal and
State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposals.
Newspaper notices inviting general public comment and announcing our
informational meeting and public hearing were published in the Salt
Lake Tribune, Deseret News, and Uintah Basin Standard. We received
requests for a public hearing, which was held in Vernal, Utah, on May
28, 2014. We reopened the comment period on May 6, 2014, for 60 days
(79 FR 25806), to accept comments on the proposed rules and several
related documents (see Previous Federal Actions).
During the 2 comment periods for the proposed rules, we received
4,889 comment letters supporting or opposing the proposed listing of
Graham's and White river beardtongues with designated critical habitat.
During the May 28, 2014, public hearing, one organization commented on
the proposed rules. All substantive information provided during the
comment periods is either incorporated directly into this document or
addressed below.
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinion from seven appropriate and
independent specialists with scientific expertise that included
familiarity with Graham's and White River beardtongues and their
habitat, biological needs, and threats. We received responses from four
of the peer reviewers. We reviewed all comments received from the peer
reviewers for substantive issues and new information regarding the
listing of Graham's and White River beardtongues. One peer reviewer
said that our description and analysis of the biology, habitat,
geology, soils, plant community associates, climatic conditions,
population trends, and historic and current distribution of the species
are accurate. Two peer reviewers found that the proposed rule provided
an accurate and adequate review and analysis of the factors affecting
the species. Two peer reviewers also stated that we reached logical
conclusions and included pertinent literature. Other peer reviewer
comments are addressed in the following summary and incorporated into
this withdrawal document as appropriate.
We also received and considered many comments relating to critical
habitat and the associated environmental assessment and economic
analysis of critical habitat, but responses to these comments are not
included here because we are withdrawing the proposed listing and
critical habitat rules for the Graham's beardtongue and White River
beardtongue. Where comments on our proposed critical habitat are also
relevant to the species' biology or distribution, or relevant to our
withdrawal decision, we have addressed these issues in this document as
appropriate.

Peer Review Comments

Comment (1): One peer reviewer urged us to protect Graham's and
White River beardtongues by designating an Area of Critical
Environmental Concern (ACEC).
Our Response: An Area of Critical Environmental Concern may only be
designated by the BLM. An ACEC that overlaps a portion of Graham's and
White River beardtongues has been designated in Colorado by the BLM. No
ACEC was designated by BLM in Utah.
Comment (2): Several peer reviewers provided corrections,
clarifications, or suggested additions to the biological background
information for Graham's beardtongue. One peer reviewer clarified that
a cool, wet spring may have reduced herbivory on Graham's beardtongue,
but effects on reproduction are not definitive. One peer reviewer
pointed out that the flowering period is late April to late June with
seeds ripening between mid-June and mid-August. One peer reviewer
suggested that we add that, ``maintaining both a sufficient number of
reproducing plants per population, a sufficient number of those
populations and connectivity between those populations is needed to
ensure cross-pollination and genetic diversity of the species.'' Two
peer reviewers suggested that we change our description of the average
lifespan of the species--the average lifespan is unknown, but plants
have been documented surviving for at least 10 years in monitoring
plots over a 10-year period.
Our Response: We included this information under Background--
Graham's beardtongue, Species Information.
Comment (3): One peer reviewer stated that sheep grazing can have
significant impacts to Graham's beardtongue. Sheep were observed
browsing all inflorescenses of Graham's beardtongue from one monitoring
plot eliminating all reproduction at the site for the year.
Our Response: We included this observation under Summary of Factors
Affecting the Species, Grazing and Trampling. In our proposal and this
document we acknowledge that herbivory and trampling can be severe at
some locations, but despite such intense impacts from sheep, this
monitoring site still had a stochastic population growth rate slightly
above one (MacCaffrey 2013a, p. 15); therefore, we do not consider
grazing to be a threat to the species.
Comment (4): One peer reviewer provided updated information about
the results of transplantation of Graham's beardtongue in 2012. None of
the plants survived transplantation.
Our Response: We included this additional information under Summary
of Factors Affecting the Species, Road Maintenance and Construction.
Comment (5): One peer reviewer asked us to update our citation of
Dodge 2013 to Reisor 2013, because the author's name has changed.
Our Response: We did not cite this document correctly in the 2013
proposal, so we have updated this citation.
Comment (6): One peer reviewer found that our description of the
slopes where the species are found was accurate but may represent a
survey bias because some slopes are too steep to safely survey, so the
proportion of plants on steeper slopes may be higher than we represent.
Our Response: We agree with the comment, but our analysis of the
relationship between slopes and species' presence is based on best
available information, which shows that the average slope where the
species occurs is 17.6 degrees. Since there are little data showing
that the species occurs on steeper slopes, we used the best information
available.
Comment (7): One peer reviewer questioned the importance of
``cushion-like'' herbs we described in our proposed critical habitat
rule (78 FR 47832) to the natural community where Graham's and White
River beardtongue grows and wondered what other cushion-like plants
besides Arenaria hookeri occur in the same natural community.
Our Response: Cushion-like plants in Graham's beardtongue habitat
include Chamaechaenactis scaposa (fullstem), Parthenium ligulatum
(Colorado feverfew), Townsendia mensana (table townsend daisy), the
Hymenoxys species (rubberweeds) and some of the

[[Page 46051]]

Cryptantha species (Cryptantha) (Neese and Smith 1982).
Comment (8): One peer reviewer said that Graham's beardtongue
overlaps the Douglas Creek and Parachute Creek members of the Green
River Formation but agreed that the description of the soils and
geology of White River beardtongue in our proposed rule to designate
critical habitat (78 FR 47832) was accurate.
Our Response: We found that 2,654 Graham's beardtongue plants
overlap with the Douglas Creek member of the Green River formation,
which represents a small percentage of the total population. We have
updated the Background--Graham's beardtongue, Species Information,
Habitat section to reflect this overlap.
Comment (9): One peer reviewer noted that photographs show Graham's
beardtongue growing on open slopes, canyon rims, and occasionally in
pinon-juniper openings.
Our Response: We include these habitat types in this document (see
Background--Graham's beardtongue, Species Information, Habitat).
Comment (10): One peer reviewer noted the importance of
pollinators. They cited an example of a plant species that lost its
pollinator and stopped producing seed.
Our Response: We agree with the importance of pollinators and
retain this discussion in our withdrawal.
Comment (11): One peer reviewer found that our description of the
importance of intact soils to Graham's and White River beardtongues is
correct although he described finding Graham's and White River
beardtongues in disturbed soils adjacent to a pipeline and road.
Our Response: We are aware of isolated instances where the species
may persist adjacent to soil disturbance. However, these locations do
not provide the full complement of associated plants or pollinator
species and thus would not provide suitable habitat for the species'
long-term viability.
Comment (12): One commenter provided information that thickleaf
beardtongue and Fremont's beardtongue occur in the vicinity of Graham's
and White River beardtongue and might be important for supporting
pollinators.
Our Response: We agree with the comment and included this
information in our description of the habitat (see Background--Graham's
beardtongue and White River beardtongue, Species Information, Habitat).
Comment (13): One peer reviewer asked us to add the citation of
Dodge and Yates 2009 to support our discussion that the highest number
of fruits is produced when flowers are cross-pollinated.
Our Response: We reviewed the Dodge and Yates 2009 paper and have
included the citation under Summary of Factors Affecting the Species,
Road Construction and Maintenance and Small Population Size.
Comment (14): One peer reviewer informed us that additional
occurrences of Graham's beardtongue were found in 2013.
Our Response: We have incorporated the additional data from the
2013 survey season into our analysis.
Comment (15): One peer reviewer suggested that we review herbarium
specimens to verify the range of White River beardtongue.
Our Response: The peer reviewer did not provide any additional
information or documentation that verifies the correct identification
of herbarium specimens or the accuracy of locations where the herbarium
specimens were found. Until both of these are verified by a qualified
botanist, we will continue to consider these herbarium specimens as
unverified. We identified the range of White River beardtongue by using
the best available information, which consists of locations that were
verified both to the correct subspecies and location. This documented
information came from many sources including the UNHP (2012 and 2013b),
CNHP (2014), BLM (2013b) and private parties (see Background--White
River Beardtongue, Species Information, Distribution and Trends). We
will consider additional information as it becomes available.
Comment (16): One peer reviewer stated that he has observed deer
grazing on Graham's beardtongue.
Our Response: Deer are listed as one of the grazers of Graham's
beardtongue under Summary of Factors Affecting the Species, Grazing and
Trampling. However, we do not have information suggesting that deer
herbivory is a threat to the species. As discussed in the section
listed above, we do not consider grazing by deer a threat to the
species because demographic data show the monitoring sites for Graham's
beardtongue are stable despite the current level of observed herbivory
(MacCaffrey 2013a, p. 15).
Comment (17): While building a species' distribution model for
Graham's beardtongue, one peer reviewer found that late-season moisture
was important in determining the distribution of the species.
Our Response: We requested more information on this topic, but the
peer reviewer did not provide data that supports this assumption, and
we do not have additional information. We do not fully understand the
relationship between the precipitation regime and the response of
Graham's beardtongue. We welcome any further information on this
relationship.
Comment (18): One peer reviewer noted that surveys for the Graham's
and White River beardtongues were also conducted by the Utah Natural
Heritage Program and funded by the Utah Endangered Species Mitigation
Fund and Uintah County.
Our Response: We recognize and are appreciative of the
contributions to surveying for both beardtongue species by the State of
Utah and Uintah County. We explain the role of the State and County
under Background--Graham's beardtongue, Previous Federal Action. These
surveys have contributed to our improved understanding of the
distribution of both species.
Comment (19): One peer reviewer believed that our plant data were
inadequate to determine population abundances and trends because we
analyzed the population data as a whole instead of analyzing the data
separately for each individual population. Further, the peer reviewer
stated that metapopulation dynamics are important for understanding
population trends and that we should evaluate these relationships.
Our Response: This document discusses the available monitoring
information, our assumptions, and the lack of abundance data (see
Background--Graham's beardtongue, Species Information, Distribution and
Background--White River beardtongue, Species Information,
Distribution). We did not lump species data to determine trends but
instead used the best available information on population trends, which
comes from two sites for each species. We recognize that individual
population trends for other populations may differ from the monitored
populations, and to that end two new monitoring sites were added for
Graham's beardtongue in 2010, and one additional monitoring site was
added in 2010 for White River beardtongue. In addition, rangewide
monitoring will be initiated under the 2014 Conservation Agreement. The
two sites that were monitored for 9 years show that those individual
populations of Graham's beardtongue were stable and that the two
monitored populations of White River beardtongue were stable and close
to stable. Further work is needed to determine if the trends at these
sites are representative of the entire population.
We acknowledge that there are gaps in our understanding of the
species' abundance based on the available

[[Page 46052]]

abundance data. We reported only known abundances in the proposed rule
and in this document, and acknowledge that the actual abundance of both
species may be higher.
Comment (20): One peer reviewer identified an additional population
of White River beardtongue that was located in Colorado in 2013.
Our Response: We have included the additional population of White
River beardtongue found in Colorado into our dataset (see Figure 2).
Comment (21): One peer reviewer asserted that we did not support
our conclusions regarding the historical distribution and abundance of
the Graham's and White River beardtongues, as grazing may have
extirpated additional populations of both species. Widespread, heavy,
and unregulated historical grazing may have reduced the distribution
and abundance of the species. More recently, livestock grazing was
reported as a threat to Graham's beardtongue by several biologists
(Neese 1982; Frates 2014).
Our Response: The historical distribution and abundance of Graham's
beardtongue is unknown, and the reviewer did not provide information on
the potential extent of the historical range. Historical heavy grazing
and trampling may have extirpated some individuals or populations of
both species; however, this most likely did not reduce the range of
either species because current monitored populations are still stable
or close to stable despite observations of livestock grazing and
trampling at monitoring sites.
Comment (22): One peer reviewer found that we did not sufficiently
analyze the naturalness of the hydrologic regime as a factor affecting
the species.
Our Response: We agree that the hydrologic regime may be important
for these beardtongues, especially since subsurface mining may produce
fissures that alter surface hydrologic regimes (Hotchkiss et al. 1980.
p. 46). We do not have nor did the peer reviewer provide specific
information on the hydrologic regime for these species. However,
because both plant species occur across a wide range and in sufficient
numbers, we find that the current hydrologic regime is sufficient to
sustain the species for the future with the establishment of
conservation areas.
Comment (23): One peer reviewer suggested that we consider
livestock trampling as a significant threat because it can affect the
species at multiple scales including direct impacts to the species,
degradation of habitat, and even large landscape effects to the
community including pollinators, soils, and hydrology.
Our Response: We do not fully understand how Graham's and White
River beardtongues respond to livestock grazing pressure, including
trampling. However, monitored populations that overlap active grazing
allotments show a stable trend over a 9-year monitoring period.
Therefore, we did not find livestock trampling to be a threat, as
discussed under Summary of Factors Affecting the Species, Grazing and
Trampling.
Comment (24): One peer reviewer found that we did not sufficiently
consider small population size as a factor affecting the species,
citing that small populations are more likely to go extinct than large
populations, and that isolated small populations become even more
vulnerable to extinction.
Our Response: Although we found that small population size
contributed to other factors that were a cumulative threat to the
species without protections, we no longer consider small population
size a threat to the species because we have reduced threats that may
isolate populations through the conservation measures in the 2014 CA.
Sufficient numbers of large and small populations of both beardtongue
species will be conserved to provide resiliency and redundancy to each
species throughout their ranges. The 2014 CA provides for the
establishment of conservation areas that protect these populations and
provide connectivity. The protection of populations within conservation
areas will provide for the continued persistence of both species.
Comment (25): One peer reviewer noted that during surveys in 2013
an extensive and moderately dense cover of purple mustard (Chorispora
tenella), an invasive weed, was found occurring with Graham's
beardtongue in the Raven Ridge ACEC. This reviewer concluded that weed
invasion is a threat to Graham's beardtongue.
Our Response: We have updated the Summary of Factors Affecting the
Species, Invasive Weeds section of this document with this new
information. However, we do not agree that this instance of an invasive
weed invasion constitutes a threat to the species because there are
sufficient numbers of populations of Graham's beardtongue that are
unaffected by invasive weeds. In addition, further evidence that purple
mustard is negatively impacting the population of Graham's beardtongue
would be needed for it to be considered a threat to the species.
Comment (26): One peer reviewer agreed with our conclusion that
both Graham's and White River beardtongues meet the definition of a
threatened species and that they should be protected under the Act.
Our Response: At the time of publication of the 2013 proposed
listing rule, we concluded that threats to Graham's and White River
beardtongues included negative effects from energy exploration and
development and cumulative impacts from increased energy development,
livestock grazing, invasive weeds, small population sizes, and climate
change. These threats have since been addressed in the 2014 CA, in part
by creating conservation areas that will protect the species from
ground-disturbing activities.

Tribal Comments

(27) Comment: The Ute Indian Tribe (Tribe) asked us to comply with
our treaty and trust responsibilities to the Tribe, the Executive Order
on Government-to-Government Consultation, the Department of the
Interior's Policy on Consultation with Indian Tribal Governments, and
the Secretarial Order on American Indian Tribal Rights, Federal--Tribal
Trust Responsibilities, and the Act. The Tribe stated that listing
actions will directly affect the Tribe and that proposed critical
habitat borders trust lands and are within the Tribe's Uintah and Ouray
Reservation. Since the Tribe is a major energy producer, they are
concerned that the proposed actions will affect the economy and
interests of the Tribe by significantly impacting oil and gas
development on their Reservation.
Our Response: In the proposed rule, we determined that no tribal
lands were known to be occupied by the beardtongues. Therefore, we did
not propose to designate critical habitat for either species on tribal
lands. It is possible that one or both species occurs on tribal lands
in potential habitat that has not been surveyed. At the time of
publication of our May 6, 2014, document reopening the comment period
(79 FR 25806), we contacted the Tribal chair and Tribal attorney by
phone and email regarding the proposed rules and the document, and
updated them on the reopening of the public comment period and the
availability of the draft 2014 CA, economic analysis, and environmental
assessment for review and comment. Also, at that time we offered to
discuss the proposed rules with the Tribe.

State and County Comments

(28) Comment: The Utah Governor's Office, Utah Public Lands Policy
Coordination Office (PLPCO), Duchesne County, Carbon County, and other
commenters stated that the listing of

[[Page 46053]]

Graham's and White River beardtongues should be withdrawn because there
is no basis for concluding that either species is threatened as defined
in the Act. The State finds the proposal to list is unsupported by
sufficient scientific information, data, and analysis and is based on
inaccurate interpretations concerning regulatory actions such as energy
development and mining proposals. Additionally, the State has expertise
in the conservation of species and in the responsible development of
oil shale and oil and gas resources. Such expertise must be considered
in the evaluation of data, the regulatory mechanisms available, and in
the ability to generate and enforce a conservation agreement for both
beardtongues.
Our Response: We used the best scientific and commercial
information available for the purpose of making a final listing
determination for Graham's and White River beardtongues, including the
newly created 2014 CA, and we concluded that the species no longer meet
the definitions of threatened or endangered species under the Act. We
agree that Graham's and White River beardtongue conservation can be
accomplished through the 2014 CA (see Ongoing and Future Conservation
Efforts).
(29) Comment: The PLPCO and several commenters stated impacts to
the species from oil shale and traditional oil and gas development in
the future will be limited. The PLPCO cites a University of Utah study
(2013) to support the growth projections of the industry, and concluded
that development would remain minimal due to low natural gas prices;
however, the study did not specify a timeframe for this projection.
Even if development were to occur, the commenters believe we overstated
its impact. Any projected drilling in beardtongue habitat will be for
natural gas rather than oil. The PLPCO and another commenter stated
promising new production techniques for oil shale and tar sands will
likely further reduce forecasted environmental impacts. Other
commenters cited economic and technical uncertainties that call into
question large-scale, rapid oil shale development on public and private
lands.
Our Response: We used the best scientific and commercially
available information for our analysis. Our analysis of energy
development included the locations of traditional hydrocarbon resource
deposits and oil shale and tar sands resources, plant abundance and
habitat overlapping these areas, and the regulatory mechanisms in place
to protect the beardtongues in these areas. While a high level of
development within these species' habitats is not yet realized, we
expect it to increase in the future, although we acknowledge some
uncertainties regarding when oil shale and tar sands development will
occur. A number of factors may limit the growth rate of the oil shale
and traditional oil and gas industry, but these factors do not remove
the likelihood of energy development in the future. We included the
University of Utah (Institute for Clean and Secure Energy 2013, entire)
study projections of likely industrial growth in our discussion of oil
shale and tar sands in this document (see Summary of Factors Affecting
the Species, Energy Exploration and Development). However, the 2014 CA
provides significant conservation actions for the beardtongues on
State, private, and Federal lands across their range (see Ongoing and
Future Conservation Efforts). We determined that the conservation
agreement measures will be effective at reducing threats to the
beardtongues.
(30) Comment: The PLPCO, Duchesne County, and other commenters
stated that we made erroneous factual assumptions about likely energy
development on BLM lands and its impact on the beardtongues. The
commenters stated that the BLM determined no commercially viable
technologies for oil shale extraction in Utah exist, and that BLM lands
will not be available to leasing except in 160-acre increments under
research, development, and demonstration (RD&D) leases. Only upon
compliance with lease provisions would additional lands become
available for commercial lease. Currently, there is only one active
RD&D lease in Utah. Another commenter stated there are no actual
proposals to develop oil shale from the vast majority of these parcels.
Another commenter stated the Consolidated Appropriations Act of 2008
placed a Congressional moratorium on all Federal oil shale leasing.
Our Response: The BLM lands identified in the proposed rule and
this withdrawal are based upon acreages potentially available for
leasing as identified in the BLM Programmatic Oil Shale and Tar Sands
Environmental Impact Statement (OSTEIS). While a high level of
development within these species' habitats is not yet realized, we
expect it to increase in the future because the Energy Policy Act of
2005 identifies the entire range of the beardtongues as a priority for
oil shale and tar sands development, requires the establishment of a
commercial leasing program, and increases the lease acreage restriction
to 50,000 acres per individual or corporation. While the growth of the
industry may be slow, this does not remove the likelihood of the threat
from energy development in beardtongue habitat where energy resources
exist. The Consolidated Appropriations Act of 2008 did not place a
moratorium on oil shale leasing; however, it did specify that oil shale
regulation development and leasing was not funded that year. However,
the 2014 CA reduces the threat to Graham's and White River beardtongues
on BLM lands by establishing conservation areas where surface
disturbance will be limited, and where plants will be buffered from
surface disturbances by distances of 91.4 m (300 ft). Outside
conservation areas on BLM lands, any surface disturbance will avoid
plants by 91.4 m (300 ft). These measures sufficiently address the
threats to both species from oil shale development.
(31) Comment: The PLPCO and other commenters believe we overstated
impacts from potential oil shale development on State and private
lands. The commenters stated that these projects are designed to
minimize surface impacts and impairment of plant species and thus would
limit disturbance to only a few thousand acres maximum at any one time.
Additionally, the projects will transition from surface mining to
underground mining depending upon the depth of the resource. Another
commenter stated that the economic reality is that surface mining would
not occur in areas with an average overburden greater than 30.5 m (100
ft), and the most commercially attractive areas for oil shale mining
would be candidates for underground mining. Commenters further stated
that the land occupied by surface mining at any one time would be a
small fraction of the habitat area, and mining areas would be rapidly
reclaimed.
Our Response: In our 2013 proposal, we assumed surface mining would
occur where the overburden is less than 152 m (500 ft) deep. This is
consistent with the Record of Decision for the OSTEIS, which stated
surface mining of oil shale in Utah is allowed where the overburden is
0 to 500 ft thick. While a high level of development within these
species' habitats is not yet realized, we expect it to increase in the
future because the Record of Decision for the OSTEIS identifies a large
percentage of the range of the beardtongues for oil shale and tar sands
development. In addition, we do not have documentation that reclaimed
mined areas can support either beardtongue species. However, the 2014
CA provides significant conservation

[[Page 46054]]

actions for both beardtongues on State, private, and Federal lands
across their ranges (see Ongoing and Future Conservation Efforts). We
determined that the 2014 CA measures will reduce threats to the
beardtongues.
(32) Comment: The PLPCO and one other commenter stated we
incorrectly indicated that no regulatory mechanisms exist with regard
to Red Leaf's project on SITLA lands. The State permit for Red Leaf's
project specifically includes protection for Graham's beardtongue.
Our Response: We appreciate the information regarding the permit
for the Red Leaf project. Although the permit may provide some
conservation benefits, we also note that Red Leaf's mining permit
allows that most of the land surface will be disturbed by mining.
Therefore, the long-term effectiveness of the measures described in the
permit is uncertain. Although the 2014 CA does not provide protections
for Graham's beardtongue on the property leased by Red Leaf, a
sufficient number of plants are protected by the 2014 CA on BLM lands
within that same population.
(33) Comment: The PLPCO and one other commenter concluded that we
grossly overstated the footprint of the Enefit project and the number
of plants contained therein by failing to use accurate mine plan data
that are publicly available. Commenters stated that surveys in 2013 of
the Enefit South Project found 117 and 413 individuals of Graham's and
White River beardtongue, respectively. These numbers represent 0.3
percent and 3 percent of known Graham's and White River beardtongue
plants, respectively, rangewide rather than the 19 percent and 26
percent identified in the proposed rule. Enefit stated that their South
Project will develop 2,833 ha to 3,642 ha (7,000 to 9,000 ac) rather
than the 10,117 ha (25,000 ac) identified in the proposed rule.
Our Response: We used the best scientific and commercially
available information for our analysis. Our analysis of the Enefit
project was based upon total acreage that was either owned, leased, or
optioned for lease by the company; the amount of plant abundance and
habitat overlapping these areas; and the regulatory mechanisms to
protect the beardtongues on these areas. We updated the information in
this document to differentiate impacts from Enefit's South Project from
the entire area owned, leased or optioned for lease by Enefit (see
Summary of Factors Affecting the Species, Energy Exploration and
Development).
(34) Comment: Several commenters stated there are sufficient
regulatory mechanisms on BLM lands to protect the beardtongues,
including protections through the OSTEIS and those applied as a BLM
special status species. The PLPCO and SITLA stated that we provide no
support for why we believe spatial buffers are not sufficient to
minimize impacts to the beardtongues. Another commenter stated the BLM
Vernal Field Office Resource Management Plan (RMP) creates a setback
zone from the Mahogany Ledge outcrop so this area believed to be of
greatest concern is not available for leasing. The commenter stated
that Graham's beardtongue survival can be adequately ensured through
avoidance and revegetation. Another commenter and Duchesne County
stated the Raven Ridge ACEC protects 87 percent of all known Graham's
beardtongue plants in Colorado and is sufficient to protect the
species. In the ACEC, motorized travel is restricted to existing roads
and there is no surface occupancy restriction for new oil and gas
leases. Additionally, commenters stated that we discounted existing
efforts to protect the species by energy companies. Another commenter
stated the majority of oil shale resources and the majority of known
plants are on Federal land and thus the Federal leasing restrictions
and imposed plant protections will be inherently limiting and
protective.
Our Response: The protections in the OSTEIS apply only to plant
species listed under the Act. The Vernal RMP does not create a setback
zone from the Mahogany Ledge outcrop. However, landscape-level
protections are included in the 2014 CA through the identification of
conservation areas for the species rangewide (see Ongoing and Future
Conservation Efforts) and by the Raven Ridge ACEC protections in
Colorado.
(35) Comment: The PLPCO stated that, since the oil shale industry
will develop gradually, we should consider a research program to
determine the beardtongues' ability to be propagated and moved into
reclaimed areas. Another commenter stated the beardtongues are robust
and would likely succeed in reseeding or transplanting efforts on
reclaimed soils.
Our Response: We agree that additional research on this topic would
be beneficial because restoration of plants of arid ecosystems remains
largely unsuccessful and unproven. Additional studies are being planned
through the 2014 CA to better assess the ability of the beardtongue
species to establish and persist on disturbed or reclaimed soils (see
Ongoing and Future Conservation Efforts).
(36) Comment: The PLPCO and SITLA stated that we failed to show
that pristine, natural environments are necessary for the species'
conservation, and it is speculative to conclude disturbance is
detrimental to these species.
Our Response: Although individual plants may occupy some disturbed
habitats, it is unlikely that these disturbed areas can support the
species on an ecosystem level and support viable populations for the
long-term. With very few exceptions, all sites where both beardtongue
species occur are located in undisturbed soils. Additional studies are
planned through the 2014 CA to better assess the ability of the
beardtongue species to establish and persist on disturbed or reclaimed
soils (see Ongoing and Future Conservation Efforts).
(37) Comment: The PLPCO, SITLA, and another commenter stated that
our evidence for indirect effects and habitat fragmentation effects on
the beardtongues is speculative. One commenter stated that there is no
clear evidence the environment is as fragmented as is implied. They
stated that Graham's beardtongue colonies are already widely dispersed,
which implies the species tolerates a high degree of fragmentation.
Our Response: We used information on the effects of habitat
fragmentation on other similar plant species to infer what the effects
would be to the beardtongues, because this represented the best
available information. Some effects of habitat fragmentation include
smaller and more isolated populations that have an increased risk of
extinction, the potential for inbreeding depression, loss of genetic
diversity, and lower sexual reproduction (see Summary of Factors
Affecting the Species, Small Population Size). Although habitat
fragmentation may not be currently high, we expect that, without the
2014 CA conservation actions, habitat fragmentation would increase in
the future as large-scale surface mining and oil and gas development
accelerates.
(38) Comment: The PLPCO, SITLA, and another commenter stated that
we assume both species are tightly associated with the Mahogany Ledge
within the Parachute Creek Member of the Green River formation, but
plants occur far above and below this ledge and on various soil types.
Our Response: We acknowledge that not all individuals are found
within the Mahogany Ledge feature. However, the majority of
individuals, or approximately 63 percent and 69

[[Page 46055]]

percent of the total population of Graham's and White River
beardtongues, respectively, are associated with the Mahogany Ledge
feature.
(39) Comment: The PLPCO, SITLA, Duchesne County, and other
commenters stated that we characterized the magnitude of the potential
threats in terms of number of known populations or individuals while
acknowledging the surveys for both species are incomplete. They further
asserted that our understanding of the amount of potential habitat may
be a substantial underestimation of the actual amount. Commenters
stated that the predictive models for both species are pending and the
model results will be based upon occurrences and data not considered in
the proposed rule. One commenter stated that only a small portion of
Graham's beardtongue habitat, perhaps less than 1 percent, across its
range has been surveyed and thus it is fair to assume the species can
be in areas that have not been surveyed. The commenter asserted that
these errors and omissions emphasize our limited understanding of the
species' distributions.
Our Response: We are required to use the best available information
when evaluating a species' status and making a listing determination.
We considered the predictive models during this analysis and agree
there is additional potential habitat for both species. However, we
based our determination on known information about the species, which
includes survey data showing the extent and abundance of the species.
Unsurveyed suitable habitat may increase both the known distribution
and total population numbers for both species in the future.
(40) Comment: The PLPCO and SITLA questioned our methods to
determine Element Occurrences (EOs) to delineate populations for the
beardtongues when the pollinator travel distances differ from the EO
delineation distance. The PLPCO stated the EO construct muddles a
realistic discussion of the discontinuous distribution of the two
species, does not allow the effects of activities to be weighed against
actual plant locations, and thereby overstates the alleged
fragmentation of habitat, establishes a completely false sense of
accuracy, and does not use the best available data. Furthermore,
commenters stated we do not provide information regarding the
ecological significance of EOs, and PLPCO questioned why we did not use
EOs in the threat analysis but rather individual plant numbers. The
PLPCO urged us to map the populations realistically for an accurate
threat analysis.
Our Response: We used EOs to characterize the number of populations
for the beardtongues because it is a standard protocol for delineating
populations used by the State of Utah Heritage Program as well as other
States' native plant programs (see Background--Graham's beardtongue,
Distribution), and we find this an acceptable, biologically-based
method to define populations. Much of the location data we received as
point locations do not reflect the actual plant distribution across the
landscape because in many cases one point represents many plants
distributed over varying areas. Thus, we rely on EOs because of the
discrepancy in the data and its standard use to delineate populations.
(41) Comment: The PLPCO and another commenter disagreed with our
conclusion that the proposed Enefit oil shale project will reduce
connectivity between Utah and Colorado Graham's beardtongue
populations. They argue the current distance between populations 19 and
20 is 6.8 km (4.2 m), which is nearly 10 times the pollinator distance
needed to maintain gene flow and connectivity between populations. The
current pollinator distances of 700 m for Graham's beardtongue and 500
m for White River beardtongues are less than 6.8 km (4.2 m), so
therefore any disturbance between these populations will not fragment
populations that are not connected by pollinators.
Our Response: We can infer that gene flow must be occurring between
these populations, because otherwise they would be different species,
or diverging from the species. Graham's beardtongue pollinators are
capable of travelling at least 700 meters (see Background--Graham's
beardtongue, Biology) during foraging. However, pollinator dispersal
distances can occur over a greater distance than foraging distance;
dispersal distances for pollinator's of Graham's beardtongue
pollinators are not known but long-distance dispersal is important for
pollinators to ensure access to adequate resources (Tepedino 2014,
entire). In addition, unsurveyed areas between populations 19 and 20
may contain occurrences of Graham's and White River beardtongue plants
that are important for providing connectivity. We used genetic studies
from other plant species, comprising the best information available, to
infer the effects of habitat fragmentation on gene flow between
beardtongue populations (see Small Population Size, below).
(42) Comment: The PLPCO disagreed with our conclusion that indirect
factors of pollinator limitation, dust, invasive weeds, grazing, small
population size, and climate change pose a threat cumulatively. They
contend that we have not demonstrated any impacts from any of these
factors because neither species appears to suffer from pollinator
limitations, dust, or invasive weeds.
Our Response: We stated in the 2013 proposed rule that the two
beardtongues have stable populations and that substantial threats are
currently not occurring. As such, we determined that livestock grazing,
invasive weeds, small population sizes and climate change were not a
threat in themselves, but when combined with energy development were a
cumulative threat to the species. However, we concluded that barring
additional conservation measures, threats would be likely to occur in
the future, at a high intensity, and across both species' entire
ranges. Our conclusions were based on future impacts to the species
that would occur in concert with energy development. Furthermore, we
discussed pollinator limitation as a negative effect of habitat
fragmentation due to the threat of energy development.
(43) Comment: The PLPCO, SITLA, Duchesne County, and other
commenters stated the proposed pollinator buffers are too large and not
supported by science. They stated that we did not demonstrate that
smaller pollination buffers would be insufficient.
Our Response: We used the best scientific and commercial
information available to identify the pollinators of both beardtongues,
identify the habitat requirements necessary to support these
pollinators, and quantify their foraging distances to inform the
pollinator buffer distance for both beardtongues (see Background--
Graham's beardtongue, Biology, and Background--White River beardtongue,
Biology).
(44) Comment: The PLPCO and SITLA stated the literature to support
our assumption that pollinators will not cross roads or other disturbed
areas is speculative. They stated that the pollinator studies cited
have no relevance to species, ecological communities, or conditions in
the Uinta Basin.
Our Response: We used the best scientific and commercial
information available to identify the behavior of beardtongue
pollinators in disturbed areas (see Summary of Factors Affecting the
Species I. Energy Exploration and Development). The best available
information includes studies from outside of the Uinta Basin that were

[[Page 46056]]

used to infer the effects to beardtongue pollinators.
(45) Comment: The PLPCO, SITLA and other commenters stated that we
did not indicate whether the higher level of reproduction resulting
from cross-pollination is necessary to maintain viable populations.
They noted that our proposed rule concluded that low pollinator
visitation for White River beardtongue was not considered a limiting
factor.
Our Response: Cross-pollinated flowers produce more seeds and
fruits than self-pollinated flowers in these species (Dodge and Yates
2009, p. 18; Lewinsohn and Tepedino 2007, p. 234). Since both
beardtongues benefit from cross-pollination, it is important to
maintain pollinator populations so that beardtongue seed production and
genetic diversity are maximized. However, the establishment of
conservation areas for both species will provide pollinator habitat and
corridors between populations.
(46) Comment: The PLPCO and SITLA stated we did not indicate what
``sufficiently large numbers or population distribution'' means in the
context of preventing inbreeding depression in Graham's beardtongue.
Our Response: We assessed the effects from inbreeding depression
based upon studies from other plant species because they comprised the
best information available at the time. However, we did not attempt to
apply the population size or distribution recommendations from these
other studies to the beardtongues because those values are species
specific. Therefore, we provided a general discussion regarding
inbreeding depression. However, we do not believe that inbreeding
depression is a threat because there are sufficient large populations
of Graham's beardtongue protected within conservation areas that allow
for a large reservoir of genetic diversity.
(47) Comment: The PLPCO and SITLA and another commenter stated that
we did not demonstrate that weeds are a threat or increase the risk of
catastrophic wildfire. The PLPCO, SITLA, and another commenter stated
the presence of weeds in adjacent habitat does not suggest they will
encroach in actual beardtongue habitat. They further stated that weeds
are unlikely to out-compete the beardtongues or increase the wildfire
risk. One commenter stated that Graham's beardtongue habitat is open
and generally devoid of other plant species, suggesting the habitat
provides some immunity to crowding from invasive weeds.
Our Response: In our 2013 proposed rule, we documented that weeds
alter the frequency, intensity, extent, type, and seasonality of fires
(see Summary of Factors Affecting the Species, Invasive Weeds). While
weeds are not abundant in beardtongue habitat, they are present, and
are abundant in adjacent habitat and where soil disturbance occurs. We
considered weeds a future threat in our 2013 proposed rule because the
amount of energy development, and associated soil disturbance, expected
to occur across these species' ranges is likely to increase weed
prevalence within beardtongue habitat, as well as the likelihood that
weeds will increase with climate change. However, in this final rule we
determined that the 2014 CA actions will be effective at eliminating or
reducing threats to the beardtongues, including the potential threat
from weeds.
(48) Comment: The PLPCO and SITLA stated that we concluded dust can
negatively affect plants, but we did not provide information on: (1)
The amount of dust deposited at what distance; (2) the extent to which
dust deposition may adversely affect beardtongue growth and
reproduction; and (3) whether those adverse effects are likely to
reduce the viability of the species. They further stated that stability
of two beardtongue research plots adjacent to unpaved roads suggests
the effects of fugitive dust may not be significantly adverse to
individual plants even on a cumulative basis. Thus, it is speculative
to conclude the disturbance from dust is detrimental to these species.
Our Response: Based on existing studies that examined the effects
of dust on plants, including those in the Uinta Basin, we found that
dust can affect plants up to 1,000 m (3280 ft) away with greater
effects closer to the disturbance (Service 2014a, entire). Effects of
fugitive dust include changes in species composition, altered soil
properties, blocked stomata, reduced foraging capacity of pollinators,
dehydration, reduced reproductive output, and a decline in reproductive
fitness (see Summary of Factors Affecting the Species, Energy
Exploration). However, the establishment of conservation areas that
limit disturbance, and the use of spatial disturbance buffers of 91.4 m
(300 ft) from plants within conservation areas and on all BLM lands,
reduce dust generation near both species thus reducing the threat from
dust. The 91.4 m (300-ft) buffer from disturbance will ensure that the
greatest impacts from dust, which occur closest to the disturbance,
will be reduced.
(49) Comment: The PLPCO and other commenters stated that
substantial problems exist with the scientific conclusions and logic
concerning the effects of climate change. They contend that, because we
acknowledged the correct environmental factors driving reproduction and
survival of the beardtongues have not been measured, we have
inaccurately characterized the species' population status and trends.
Another commenter stated our argument that climate change impacts will
be more severe if energy development destroys and fragments the habitat
is speculation and not a basis for finding a cumulative threat to the
species. They further stated we provided no factual support that
climate change is likely to augment the ability of invasive plants to
outcompete native plants.
Our Response: Climate change is occurring, and there is strong
scientific support for projections that warming will continue through
the 21st century (see Climate Change under Factor E.). While down-
scaled climate models of the Uinta Basin are not available, annual mean
precipitation levels are projected to decrease, and air temperatures
and periods of drought are expected to increase in western North
America. Because the scientific literature, including the citations
PLPCO provided in their comments, indicate the importance of
precipitation for plant recruitment, we considered future precipitation
patterns in our analysis of climate change and the likely reduction of
plant recruitment under reduced precipitation and increased incidence
of drought. Additionally, soils are expected to dry more rapidly
because of increased temperatures and this is likely to result in
reduced soil moisture levels in beardtongue habitat (see Summary of
Factors Affecting the Species, Climate Change). Climate change impacts
likely will be more severe if oil and gas development destroys and
fragments the habitat. Development activities in currently unoccupied
but suitable habitat for the species could limit the potential range
expansion or shifts necessary for both species to adapt to climate
change. The 2014 CA creates conservation areas that limit surface
disturbance and create spatial buffers so that the cumulative effects
of energy development, livestock grazing, small population sizes,
invasive weeds, and climate change are reduced.
(50) Comment: The PLPCO and SITLA stated that demographic studies
(McCaffery 2013a; Reisor and Yates 2011) do not incorporate acceptable
sample sizes and analyses as defined by Morris and Doak (2002). Both
commenters provided additional citations relevant to population models.
They raise several concerns, including:

[[Page 46057]]

(1) Limited study locations that do not represent the species' ranges
and, therefore, the potential range of demographic variability and
environmental stochasticity; (2) the sample contains large detection
errors that limit the applicability and statistical rigor of the
analyses and are not accounted for in the Population Viability Analysis
(McLoughlin and Messier 2004); and (3) the population trend and
condition cannot be accurately derived from the study data. Therefore,
they contend that a minimum population size for these species cannot
accurately be determined.
Our Response: We acknowledge the limitations inherent in the
demographic studies on both beardtongue species. We used the best
scientific and commercial information available to assess population
status and trends for the beardtongues. The demographic studies we
cited provide the only long-term population information for both
species, and we considered and included those study results in our
analysis. We did not establish a minimum population size for either
species in our proposed rule or this document; rather, we stated that
populations of either species with fewer than 150 individuals are more
prone to extinction from stochastic events (see Summary of Factors
Affecting the Species, Small Population Size).
(51) Comment: The PLPCO and another commenter stated that our
assertion that future development will contribute to genetic isolation
and reduced adaptive capacity of small populations is not supported.
They contend that it is reasonable to assume that both species, as
edaphic (soil-related) endemics, are naturally rare and have always
occurred in small, isolated populations, and thus genetic effects from
isolation may be minimal.
Our Response: We agree that both beardtongues are edaphic endemics
that were historically rare. We used genetic studies from other plant
species, comprising the best information available at the time, to
infer the effects of habitat fragmentation on gene flow within and
between beardtongue populations. We determined it is incorrect to
assume no gene flow is occurring between populations without genetic
studies.
(52) Comment: The PLPCO and SITLA stated that, according to the
Service, the conservation needs of the species were based upon ``expert
workshops'' rather than actual, available data; and so they suggest
that the Service should acknowledge that the best available information
may not be sufficient to support the proposed determination.
Our Response: We used information from scientists with expertise in
botany and specific knowledge of one or both species, in addition to
published literature and data, where available, to evaluate the best
available scientific information for both beardtongues in order to
complete a status assessment and determine the resource needs for
species viability.
(53) Comment: The PLPCO stated that we misapplied an existing
conservation agreement for the species and did not consider recent
efforts to develop a new agreement. The County, State, BLM, and
affected industries have been working together to build a comprehensive
conservation plan for the two species.
Our Response: We agree that Graham's and White River beardtongue
conservation should be pursued by State, local, private, and Federal
agencies, and actions to achieve this objective are detailed in the
2014 CA (see Ongoing and Future Conservation Efforts). The 2014 CA
provides significant conservation actions to benefit Graham's and White
River beardtongue. Conservation measures in the 2007 Conservation
Agreement were considered in the proposal, but did not contain
sufficient conservation actions to address threats to the species.
(54) Comment: The SITLA provided citations of scientific literature
that they believe were relevant to our analysis in the 2013 proposed
rule, but were not included in the proposed rule.
Our Response: We appreciate the additional citations to support the
analysis in the 2013 proposed rule. We have reviewed the information in
these studies, but were not able to apply them to this document as they
were general in nature and did not specifically address the Graham's
and White River beardtongue species or the threats they may face.
(55) Comment: Rio Blanco County stated that listing is unnecessary,
the proposed rule failed to demonstrate these beardtongue species are
being impacted, and our analysis was speculative with respect to
impacts identified to occur in the future. The County believed we were
attempting to exclude energy development from the area rather than
cooperatively seeking effective mitigation measures for developers to
demonstrate they can avoid or mitigate such impacts. The County
strongly recommended that we consult with the BLM on the conservation
of the beardtongues.
Our Response: In our 2013 proposed rule, we stated that the
beardtongues were stable species and that substantial threats were
currently not occurring. However, we further stated that threats were
likely to occur in the future, at a high intensity and across both
species' entire ranges. We have worked cooperatively with various
stakeholders, including the BLM, to finalize the 2014 CA to address
these identified threats (see Ongoing and Future Conservation Efforts).
We determined that the 2014 CA measures will be effective at
eliminating or reducing threats to the beardtongues.
(56) Comment: Rio Blanco and Carbon counties stated that grazing
permittees will be negatively impacted by the proposed rule. They
contend that the potential impact and trampling damage from large deer
and elk populations were only briefly mentioned, but many beardtongue
populations overlap with summer and winter range for mule deer and elk.
Additionally, they contend that this area has a huge population of wild
horses and it was a flaw not to include this information in the
proposed rule.
Our Response: In the 2013 proposed rule, we stated that livestock
were likely not the primary grazers of Graham's and White River
beardtongue. We updated the section in this document to clarify that
wild horses use the habitat areas. We mention some herbivory was
attributed to deer (see Summary of Factors Affecting the Species,
Grazing and Trampling). We do not have data showing the presence or
impacts from elk in beardtongue habitat.
(57) Comment: One commenter stated that we failed to discuss
obvious management measures to address fragmentation and gene flow.
They cited a court case (CBD v. Norton, 411F. Supp. 2d 1271, 1290
(D.N.M. 2005)) where the district court rejected arguments that a
cutthroat trout species was threatened with extinction from habitat
fragmentation and inbreeding because the threat could be ``alleviated
by management activities'' including transplantation.
Our Response: Transplanting and propagation as management
activities to address fragmentation and gene flow of either beardtongue
species have not been proven to be effective in conserving either
species. However, we worked cooperatively with various stakeholders to
finalize the 2014 CA, which is considered in this document. This
agreement identifies significant conservation actions for both
beardtongues on State, private, and Federal lands across their ranges,
including the mediation of habitat fragmentation and reduced population
connectivity (see Table 1 and Ongoing and Future Conservation Efforts).
(58) Comment: Several commenters stated that we provided
insufficient evidence that grazing is a threat to the

[[Page 46058]]

beardtongues in the proposed rule. One commenter stated that we
provided no scientific or field evidence that disease or predation
(Factor C) is a threat. Commenters contend that the grazing of grasses
is believed to have enhanced the habitat for Graham's beardtongue.
Our Response: We considered predation from many sources in our
proposed rule, including grazing by livestock. We concluded in our
proposed rule that livestock grazing only impacts the beardtongues when
considered cumulatively with increased energy development, invasive
weeds, small population sizes, and climate change. We did not consider
disease to be a threat to either species, as the best available
information does not suggest that disease is impacting Graham's or
White River beardtongues. In this listing withdrawal, we have
determined that the 2014 CA measures will be effective at reducing
threats to the beardtongues.
(59) Comment: SITLA and several other commenters stated that we
demonstrated population numbers and increases sufficient for these
species to remain viable into the future. The commenters stated that
the Service and experts agree that both species are stable, thus a
listing under the Act is premature, as we should not base a listing on
either insufficient data regarding the species' population or
populations that are not declining. The commenters stated that as more
surveys are conducted, more plants are found, and this demonstrates
that the population trends are increasing. The commenters noted that
these population increases occurred while the plants faced the same
threats that were analyzed in the proposed rules. The commenters stated
we must consider these population increases in our listing
determination.
Our Response: As survey effort and area has increased, so has the
number of plants that have been found. However, an increase in the
population due to increased survey area and effort does not indicate
that the population is increasing, and we do not have any information
to suggest that populations of either species are increasing.
Population trends such as increases and decreases are determined by
monitoring known occurrences over a period of time. The monitoring data
that we evaluated shows that populations for Graham's beardtongue are
stable and populations of White River beardtongue are stable or close
to stable (McCaffery 2013a, entire; BLM 2011, pp. 6-7).
In the 2013 proposed rule, we stated the beardtongues have stable
populations, but faced many threats. Our analysis of the threats, not
just the population size, led to our proposed determination of
threatened status for the species. In the 2013 proposed rule, we
concluded that, while current threats from energy development are low,
these threats are expected to increase in intensity, magnitude, and
severity across the range of both species so that they are likely to
become endangered in the foreseeable future. The 2014 CA was developed
to reduce these and other threats to both beardtongue species.
(60) Comment: One commenter stated they are concerned that we
proposed to list a plant variety, rather than a species or subspecies.
The commenter requested that we perform a more thorough analysis of the
uniqueness of White River beardtongue before we conclude this status
review.
Our Response: White River beardtongue is one of four varieties of
Plateau beardtongue (Penstemon scariosus). White River beardtongue is
differentiated from the other three varieties of Plateau beardtongue
primarily by morphological and geologic substrate differences. The use
of the term variety in this instance is equivalent to the definition of
a subspecies, which is a taxonomic subunit of a species. Under the Act
there are three listable entities: Species, subspecies, and distinct
population segments. Because White River beardtongue is a subspecies,
it is a listable entity under the Act.
(61) Comment: Two commenters stated there is no evidence the
Graham's beardtongue population has suffered from gathering or
overutilization (Factor B). The commenters noted that seeds and
propagation information are available online, and that the species is
highly responsive to cultivation in alpine gardens, which indicates the
species will respond successfully to revegetation and reclamation
measures.
Our Response: We did not consider unauthorized collection to be a
threat to either beardtongue species (see Unauthorized Collection). We
know of no successful ecological restoration efforts involving either
species or of their habitat. Other more common beardtongue species are
easily cultivated, but we know of no work that has been conducted on
the propagation and restoration of Graham's and White River
beardtongues.
(62) Comment: One commenter stated that anytime there is a listing
under the Act, we are stifling the wise use of natural resources.
Another commenter stated the listing under the Act may not be the best
way to ensure survival of the species. Survival would be better assured
through well-considered mitigation and reclamation design.
Our Response: Under the Act, we must list a species if the best
available scientific and commercial information indicates that it meets
the definition of a threatened or endangered species.
(63) Comment: One commenter stated the penstemon expert meeting
notes did not support the Service's conclusion of threatened status.
Additionally, they were concerned that the comment period for the
proposed rule did not coincide with the flowering period of either
plant, so it was not possible to confirm or refute population data.
Our Response: We did not solicit the experts' opinions regarding
whether listing under the Act was warranted. The purpose of the meeting
was to evaluate the best available scientific information for the
beardtongues. We reopened the comment period from May 6-July 7, 2014,
to accommodate additional time for the public to make comments. This
second comment period overlapped flowering for both beardtongue
species, which occurs from May through June.
(64) Comment: Two commenters stated their support for the listing
of both beardtongues. One commenter stated that the ecosystem is not
resilient enough to withstand a decline in biodiversity, and the
beardtongues fulfill a very specific niche. The limited range of both
beardtongues is a concern, and their low recruitment makes them
naturally vulnerable. There is likely no protection on State and
private lands from energy development, and impacts on these lands would
increase fragmentation of remaining habitat at a landscape scale.
Habitat impacts can have a systemic impact on the entire ecosystem
beginning with the bee pollinators. Climate change would likely serve
as an added stressor. One of the commenters supports the protection of
ecologically meaningful core areas to maintain pollinator and plant
diversity. They conclude that the argument to protect biological
diversity of the oil shale barrens is a strong one and should be
considered.
Our Response: Our 2013 proposed critical habitat rule (78 FR 47832)
for the beardtongues recognized the importance of preserving plant
diversity and pollinators in beardtongue habitat. In the 2014 CA, we
identified landscape-level protections necessary to protect the
beardtongue species and their pollinators from indirect and cumulative
impacts (see Ongoing and Future Conservation Efforts) by establishing
conservation areas, surface disturbance limits, avoidance buffers, and
measures to address livestock grazing, invasive weeds, small population
size, and climate change.

[[Page 46059]]

The conservation areas provide connectivity between occurrences and
protect large populations that will serve as a core area for the
conservation of both species. Other incremental stressors will also be
addressed individually in order to reduce the cumulative threats that
may be acting on both species.
(65) Comment: One commenter stated the existing protections on BLM
lands are not adequate to assure the persistence of the beardtongues. A
150-foot buffer is inadequate, and the Vernal RMP does not require
avoidance of plants.
Our Response: Conservation areas established in the 2014 CA include
adequate buffers (91.4 m [300 ft]) and surface disturbance limits (see
Ongoing and Future Conservation Efforts).
(66) Comment: Carbon County asked us to consider the economic
impacts to people and local economies from the delay or prevention of
energy resource development as a result of a listing of either species.
One commenter stated that restricting development is in direct conflict
with our Nation's energy policy. The commenter was concerned that he/
she would need to obtain a Federal air quality permit, which may
include restrictions associated with these listings. This outcome would
potentially stop oil and gas and oil shale mining activities on their
land and impact their family income in excess of $1 million annually.
The commenter indicated that, given the incomplete status of data and
understanding, perhaps a threatened species status at this time is
premature.
Our Response: An economic screening analysis was completed for our
proposed critical habitat designation; however, the Act does not allow
us to consider economic impacts in our decision on whether to list a
species. Because we are withdrawing the proposed listing and critical
habitat rules, the impacts that the commenters are concerned about will
not occur.
(67) Comment: Several commenters including Duchesne County, Uintah
County and SITLA stated that they support the 2014 CA over a decision
to list the two species under the Act, and stated that we should take
the conservation measures in the 2014 CA into account in our
determination of the status of the species. The reasons for their
support are sorted into the following categories and explained in
greater detail below:
1. Threats: The commenters stated that we do not fully know the
range and habitat of the two beardtongue species. They concluded that
enacting the 2014 CA (instead of listing the species) would allow time
for more surveys so that we will better understand the species
population, habitat, and distribution, and allow for conducting
transplant and restoration studies on disturbed lands. Also, the
commenters concluded that the 2014 CA affords the species landscape-
level protection, by including state and private lands in conservation
areas.
2. Conservation on non-federal lands: The commenters concluded that
the 2014 CA affords more protection for both beardtongue species than a
listing under the Act, with less economic impact. Under the Act, listed
plants are not protected on non-federal lands without a federal nexus;
whereas, the commenters state that the 2014 CA provides legally binding
protection on approximately 10,000 acres for both species on state and
private lands. Additionally, they conclude that the 2014 CA promotes
cooperation among landowners and managers.
3. Implementation and funding: Uintah County, SITLA, and PLPCO
stated that they are committed to implementing the 2014 CA, and the
State of Utah Endangered Species Mitigation Fund has enough funding to
ensure success of the 2014 CA.
4. Timeframe: The commenters state that the 2014 CA can be
reassessed at the end of the duration of the agreement and renewed if
necessary, or the species can then be listed under Act.
Our Response: The Act does not allow us to consider economic
impacts in decisions on whether to list a species under the Act.
However, we agree that the 2014 CA provides significant conservation
benefits to Graham's and White River beardtongues, including providing
landscape-level protections through the inclusion of conservation area
protections on non-federal lands; promoting cooperation with federal
and non-federal partners; providing non-federal funding and commitments
for the conservation of the species; and allowing for more time to
better understand the species habitat, abundance, and demography. In
addition, the 2014 CA protects 64 percent of the known occurrences of
Graham's beardtongue and 76 percent of known occurrences of White River
beardtongue throughout the species' ranges by establishing conservation
areas where surface disturbance will be limited and plants will be
avoided by 91.4 m (300 ft), or unavoidable impacts mitigated. The 2014
CA specifies that, on federal lands, both species will be protected by
buffers of 91.4 m (300 ft) from surface disturbing activities both
within and outside of conservation areas. Through our Policy for
Evaluation of Conservation Efforts When Making Listing Decisions (PECE)
(68 FR 15100, March 28, 2003) process, we determined that these
protections were adequate to reduce the threats to the species such
that they no longer warrant listing as threatened or endangered.
(68) Comment: The SITLA and one other commenter noted that
technical experts concluded that current plant populations of both
beardtongue species are stable and likely to persist into the future.
Our Response: We agree that the best available information shows
that the monitored sites of Graham's and White River beardtongue appear
to be stable (McCaffery 2013a, entire; BLM 2011, p. 6-7). We also
concluded that both species of beardtongue are likely to persist into
the future when considering the protections of the 2014 CA that reduce
the threats to the species.
(69) Comment: The County Commission of Duchesne County stated that
they object to the proposed rules to list Graham's and White River
beardtongues and designate critical habitat because the proposed
listing rules are not consistent with Duchesne County General Plan
policies; the proposed rules are not consistent with State of Utah
plans for the subject lands; and the proposed rules will economically
adversely affect small businesses and governments.
Our Response: The Act does not allow us to consider economic
impacts in decisions on whether to list species. Our proposed listing
rules were based on an analysis of the threats to Grahams and White
River beardtongues in accordance with the Act. However, since
publication of our proposed rules, we have developed a 2014 CA which
reduces the threats to the species, and we have concluded that neither
species warrants listing under the Act.
(70) Comment: Duchesne County asked to be included in the
development of recovery plans.
Our Response: We welcome participation by any stakeholder in the
development of conservation and recovery efforts for Graham's and White
River beardtongues. However, recovery plans pursuant to the Act will
not be necessary because we have determined that neither species
warrants listing under the Act.
(71) Comment: Duchesne County stated that they expect the Service
to recognize valid, existing rights including access within critical
habitat, such as access to mineral rights.
Our response: We are withdrawing our proposed rules to list
Graham's and White River beardtongues and designate critical habitat.
Instead we have

[[Page 46060]]

determined that the protections of the 2014 CA conserve the species
through the designation of conservation areas to the point that these
species no longer meet the definition of threatened or endangered.
Landowners and managers where these conservation areas will be
established are participating in the conservation agreement either
directly or indirectly. Within these conservation areas valid, existing
landowner rights, including access, will be allowed, but controlled
such that new surface disturbance does not occur within 91.4 m (300 ft)
of plants, and surface disturbing activities are limited to 5 percent
where Graham's beardtongue occurs and 2.5 percent where White River
beardtongue occurs.
(72) Comment: Many commenters (including 4,890 form letters)
supported the listing of Graham's and White River beardtongues because
they believe the 2014 CA is not adequate to prevent extinction of both
beardtongue species. Their reasons for supporting a listing are sorted
into the following categories with further explanation:
1. Threats: The commenters stated that the conservation agreement
does not prevent or reduce the threats to the species including those
from energy development, road construction and maintenance, OHVs, and
climate change; the 2014 CA will allow an increase of identified
threats to the species in comparison to a listing of the species; the
measures addressing grazing are vague and not adequate to conserve the
species; the 2014 CA should enact mandatory buffers to protect the
species and their habitat; conservation agreements are not as
protective as a listing under the Act, especially compared to the
protections under Section 9 of the Act; the 2014 CA has no benefits and
possible negative impacts to the species on Federal lands; threats such
as invasive species are not addressed and measures for these threats
are unclear; neither species has protections on state and Federal
lands; therefore, more protection is required on Federal lands; the
2014 CA does not provide assurances that impacts to the species will be
reduced or mitigated; both beardtongue species are ranked by the UNPS
as species of extremely high concern, the highest priority category for
conservation; and because both species are considered candidate
species, they already meet the criteria for listing under the Act.
2. Buffers and disturbance thresholds: The commenters state that
the 91.4 m (300 ft) buffer from surface disturbing activities as
outlined in the 2014 CA is discretionary and inadequate to protect the
plant and its pollinators, whereas the 700 m (2,297 ft) proposed
critical habitat area surrounding known occurrences is more appropriate
because it would protect pollinator habitat and genetic movement;
buffers of at least 200 m (650 ft) are needed; the 2014 CA allows
disturbance of 5 percent for Graham's beardtongue and 2.5 percent for
White River beardtongue conservation areas, without a biological basis
for allowing surface disturbance caps in the conservation areas; and
the 2014 CA does not say how the conservation team will track surface
disturbance levels.
3. Conservation Areas and critical habitat: The commenters are
concerned that the conservation areas in the 2014 CA protect less
acreage than the amount of area that was proposed for critical habitat;
the larger area proposed for critical habitat was determined in our
proposed rule to be ``essential to the conservation of the species''
and protects the species on a landscape level, including protecting
pollinator nesting sites and secondary floral resources; the 2014 CA
protects only 76 percent of the population of White River beardtongue
and 64 percent of the population of Graham's beardtongue, which the
commenters believed was insufficient; the 2014 CA does not provide for
the redundancy, resiliency, and representation of either species; and
the 2014 CA does not include suitable habitat to address the threat of
climate change.
4. Timeframe: The commenters expressed concern that the interim
conservation areas are not protected over a long enough term and may be
developed at any time; additional habitat loss and fragmentation can
negatively affect small populations; the 15-year term of the agreement
is too short to recover the species whereas a listing under the Act
provides protections until the species is recovered; and the agreement
terminates if either species is listed.
5. Implementation and funding: The commenters stated that the 2014
CA relies on future, voluntary, and unfunded conservation measures that
have not been implemented, shown to be effective, and have no certainty
of implementation; private landowners have not authorized conservation
measures on their lands; the 2014 CA does not include an implementation
plan; conservation measures such as transplanting and habitat
restoration are unproven; there is no funding identified for all the
tasks; voluntary conservation agreements are not proven to adequately
protect species from extinction whereas protections under the Act,
including listing, have a 99 percent success rate of preventing
extinction; the State of Utah has not committed adequate resources or
authority for implementing the 2014 CA; and listing under the Act would
be better because it requires recovery planning and Federal funding.
6. Conservation team: The commenters expressed concern that the
conservation team does not include representatives from all
stakeholders, including those from the Utah and Colorado Natural
Heritage Programs, Uinta Basin Rare Plant Forum, Red Butte Garden, Utah
Division of Oil Gas and Mining, Utah State Lands and Forestry, Utah
Division of Wildlife, beardtongue experts, and environmental advocacy
groups; the conservation team lacks the expertise to carry out the 2014
CA; the state as a signatory to the agreement does not apply a
scientific approach to other natural resource matters; the duties of
the conservation team are not adequate to implement all the tasks
outlined; the conservation team has not been identified or funded; and
the County and State have not previously participated or cooperated in
ongoing efforts to conserve rare plant species across the state or in
Uintah County.
7. Other: The commenters noted that the 2014 CA was developed
without public input and all interested stakeholders; the 2014 CA sets
a bad precedent; and pursuing a conservation agreement wastes
taxpayer's money since this is the third time the species has been
proposed for listing under the Act.
Our Response: We used our Policy for Evaluation of Conservation
Efforts When Making Listing Decisions to evaluate the certainty that
the conservation measures in the 2014 CA will be implemented and
effective at reducing threats to Graham's and White River beardtongues.
We concluded that the conservation measures in the 2014 CA have a high
certainty of being implemented and effective. Our detailed PECE
analysis is available for review at http://www.regulations.gov and
http://www.fws.gov/mountain-prairie/species/plants/2utahbeardtongues/.
See the Ongoing and Future Conservation Efforts and PECE Analysis
sections below for more information. Our response to the comments in
each category listed above is as follows:
1. Threats: The 2014 CA reduces the threats to the species by
providing protections from energy development, invasive weeds, climate
change, and small population sizes through the establishment of 44,373
acres of conservation areas where surface disturbance is limited, and
where disturbance occurs, it will avoid plants

[[Page 46061]]

by 91.4 m (300 ft). In addition, the 2014 CA provides for protections
of both species on non-federal lands in key units (conservation areas)
that would otherwise not be protected unless a federal nexus occurred.
Under Section 9 of the Act, listed plants do not receive protections on
non-federal lands unless a federal nexus applies. Therefore, even if
listed, many plants occurring on non-federal lands may still be
vulnerable to the identified threats. In the 2014 CA, threats from
grazing are addressed through a monitoring and adaptive management
process where BLM will assess and reduce livestock impacts where they
occur. Additional threats from invasive species are reduced through the
development and implementation of a weed management plan. OHV use was
not considered a threat to the species in our proposed rule; however,
establishment of conservation areas and BLM management of their lands
for the beardtongue species will minimize the effects of OHVs through
consideration of the needs for protection of both species during the
development of the BLM travel management plan.
2. Buffers and Disturbance Caps: We have revised the language in
the 2014 CA to ensure that adherence to the 91.4 m (300 ft) avoidance
buffers is mandatory, rather than discretionary, and exceptions will
only be allowed when it is beneficial for the species or its habitat
and approved by the conservation team on non-federal lands, or after
conference with the USFWS on federal lands (Table 4). The 91.4 m (300
ft) avoidance buffers were selected to protect the species from the
effects of surface-disturbing activities because this is the buffer
distance that is currently being used under Section 7 consultations
under the Act in the Uinta Basin in Utah to avoid direct and indirect
effects that are likely to adversely impact listed plant species. This
buffer distance is based on a review of literature that shows that,
although the effects of dust can extend out to 1,000 m (3,281 ft), and
ground disturbance may have additional effects out to 2,000 m (6,562
ft), the greatest impacts occur closer to the disturbance. Thus, 91.4 m
(300 ft) was selected to balance the protection of the species with
energy development (Service 2014a, entire). Surface disturbance caps of
2.5 percent for White River beardtongue and 5 percent for Graham's
beardtongue were selected to minimize habitat fragmentation that can
occur from full field (40-acre spacing) development, which results in
13 percent surface disturbance. We will calculate surface disturbing
activities as explained in the 2014 CA (Table 4, conservation action 1)
by tracking activities that require a permit, include permanent
structures, or construction or expansion of new or existing roads.
3. The acreage included in the conservation areas is less than the
acreage that we proposed as critical habitat; the proposed critical
habitat for the two beardtongue species overlap, and total 75,846
acres. However, critical habitat protections for plants do not apply on
non-federal lands without a federal action; therefore, proposed
critical habitat on federal lands alone would typically apply to only
49 percent of the population of Graham's beardtongue and 60 percent of
the population for White River beardtongue. The 2014 CA protects a
greater number of plants by protecting 64 percent of Graham's
beardtongue plants and 76 percent of White River beardtongue plants on
both federal and non-federal lands. In addition, the conservation areas
are strategically placed to provide habitat connectivity, thereby
conserving the resiliency, redundancy, and representation of the
species across their ranges (Figure 3; Table 3). The 2014 CA
conservation areas include unoccupied habitat on slopes of various
aspects that may allow the species to adapt to chosen microhabitats as
the climate changes. There are many ways to achieve conservation of
these two species. The proposed critical habitat designation identified
all populations, with the understanding that critical habitat would not
convey or guarantee conservation. The 2014 CA conserves a smaller
amount of habitat, but provides greater protection because it actually
conserves a greater percentage of the population.
4. Timeframe: We did not rely on the interim conservation areas for
our PECE analysis and final determination because the interim
conservation areas are subject to development at any time and do not
provide certainty of protection for either species. The timeframe of
the 2014 CA is 15 years. During this time we hope to better understand
the intensity, magnitude, and scale of the threats to both beardtongue
species including those from energy and oil shale development. At any
time during or near the end of the 15 years, parties to the agreement
can choose to continue with and renew the conservation agreement. If
during or after this timeframe, either species meets the definition of
threatened or endangered, we can act to protect the species through the
listing process. If the beardtongue species are listed under the Act,
the 2014 CA expires automatically to avoid a situation where the
parties are bound to both the commitments in this agreement and the
potentially additive requirements of the Act. This conservation
framework provides a consistent regulatory framework for landowners or
managers who may be affected, while still protecting the beardtongue
species under either scenario.
5. Implementation and funding: Through our PECE analysis process we
found that the 2014 CA has a high certainty of being implemented and
effective. Our detailed PECE analysis is available for review at http://www.regulations.gov and http://www.fws.gov/mountain-prairie/species/plants/2utahbeardtongues/.
6. Although the signatories to the conservation agreement include
federal, state, and county governments, we welcome participation by any
stakeholder or beardtongue expert to provide relevant information and
express their viewpoint in the process of administering the 2014 CA. We
will reach out to others with knowledge about the two beardtongue
species and landowners to ensure they have an opportunity to
participate in the conservation of the species as we implement the 2014
CA. Funding for the implementation of the agreement, such as for
establishing conservation areas, will be supplied by the various
signatories through in-kind services and each land owner or manager
will provide funding for conservation measures on their lands, such as
surveys prior to surface disturbing activities. The conservation team
includes botanists from the BLM and USFWS who are well qualified to
provide botanical expertise.
7. The 2014 CA was developed by county, state and federal entities
that have the authority to regulate and permit activities on lands
within their jurisdiction that overlap with Graham's and White River
beardtongue habitat. The protections in the 2014 CA were analyzed
through our PECE process and found to have a high certainty of
implementation and effectiveness.
(73) Comment: A couple of commenters asked us to identify which
areas were subject to the 5 percent disturbance limit cap and which
areas are subject to the 2.5 percent disturbance limits cap and to make
this information public. In addition, one commenter asked for
clarification about whether the disturbance caps applied per unit or
per landowner. One commenter stated that this information must be
available for public comment before the agreement can be finalized.

[[Page 46062]]

Our response: We provided a map of the conservation areas (Figure
3; also included in the 2014 CA) showing the areas where the different
disturbance caps apply. The disturbance caps apply per landowner per
unit (units are shown on Figure 3). The conservation agreement is a
voluntary agreement and may be finalized without public comment,
although we made the 2014 CA available for comment during our public
comment period on the proposed rules and associated draft economic
analysis and draft environmental assessment of critical habitat.
(74) Comment: One commenter does not agree that the designation of
conservation areas or the surface disturbance cap of 5 percent for
Graham's beardtongue and 2.5 percent for White River beardtongue
included in the 2014 CA is necessary for the protection of either
beardtongue species because they do not agree with the science used to
support these protections.
Our response: In our proposed rule, we used the best available
information to support our conclusions that both Graham's and White
River beardtongue need landscape-level conservation and protections,
particularly from full-field energy development. The establishment of
conservation areas provides the necessary landscape-level conservation,
and the surface disturbance caps protect both beardtongue species from
full-field development.
(75) Comment: One commenter stated that the Service did not follow
its own guidance and policy regarding the peer review process for the
proposed rules, citing the Service's Information Quality and Peer
Review Guidelines (revised June 2012) implementing the Office of
Management and Budget's December 16, 2004 Final Information Quality
Bulletin for Peer Review. The commenter concluded that the peer review
that was conducted by the Service for these proposed rules is not
adequate because the peer reviewers did not fully analyze the
scientific information presented in the proposed rules nor did they
point out important flaws in the Service's analysis. At least one peer
reviewer was not objective in their review because they are negative
toward the oil and gas industry.
Our Response: As outlined in the proposed rule, we followed our
peer review guidance and process for the proposed rules (59 FR 34270;
July 1, 1994). We requested peer review from seven peer reviewers, all
of whom are knowledgeable about the two beardtongue species. We
received completed peer reviews of the proposed rules from four of
these peer reviewers. These peer review comments are included in our
administrative record and are available at www.regulations.gov. We
reviewed the documentation provided by the commenter regarding the
objectivity of one of the peer reviewers and did not find a conflict.
That peer reviewer, as a citizen, submitted a letter to the Colorado
Oil and Gas Conservation Commission in support of a larger setback for
oil and gas drilling from residential homes. We do not view this action
as compromising the objectivity of a peer review of our proposed rules.
(76) Comment: One commenter asked us to state the value of the
conservation areas to the conservation of the two species:
specifically, whether the conservation areas protect known occurrences
or only suitable habitat.
Our Response: The conservation areas protect both known occurrences
and unoccupied suitable habitat. Of the known occurrences, the
conservation areas encompass and protect 64 percent of Graham's
beardtongue plants and 76 percent of White River beardtongue plants.
(77) Comment: One commenter questions the ability of the
conservation team to accomplish all the tasks identified in the 2014
CA, given the lack of knowledge and experience of the conservation team
members and lack of funding. The commenter requested that we determine
minimum qualifications for conservation team members as well as
identified funding.
Our Response: We conclude that the conservation team has the
knowledge and ability to carry out the conservation measures in the
conservation agreement. The main protection in the 2014 CA is the
establishment of conservation areas, which the signatories to the
agreement have the authority and ability to implement. The BLM has
sufficient expertise in controlling invasive weeds and monitoring and
managing livestock impacts to the species because they have been
managing grazing allotments since the passage of the Taylor Grazing Act
of 1934, and now manage under the Federal Land Management and Policy
Act of 1976. We have developed guidelines for surveying and monitoring
Federally listed and candidate plant species (Service 2011, entire),
and these guidelines will be used to monitor Graham's and White River
beardtongues as committed to in the 2014 CA. The BLM has funded and
continues to fund demographic monitoring of both species and management
of energy development and sensitive plant species protection on their
lands. Uintah County and Utah DNR have funded surveys for both
beardtongue species over multiple years.
(78) Comment: One commenter questioned whether the populations we
report in the 2014 CA for both Graham's and White River beardtongues
are genets (i.e., colonies of clones sharing identical genes reproduced
vegetatively from the same individual) or ramets (i.e., individual
stems or clones from the same genet). The commenter proposes that the
population size may be about half of the number we report because
ramets may have been counted instead of genets. The commenter
acknowledges that others do not agree that the plants are clonal.
Our Response: During transplanting of Graham's beardtongue in 2012,
plants were excavated and inspected but clonal reproduction was not
observed (Brunson 2012a, entire; Reisor 2014a, entire). Graham's
beardtongue may produce multiple rosettes from one branching caudex
(stem), but these might represent only 5-10 percent of the population
(Brunson 2012a, entire), and these are not thought to contribute
greatly to inflated population counts (Reisor 2014a, entire). Based on
this information, we conclude that surveys represent accurate counts
and that our population estimates are correct based on the best
available information.
(79) Comment: One commenter stated that several citations in the
2014 CA should be corrected including Kramer et. al 2011, which is not
relevant to pollination of penstemon species.
Our Response: We have reviewed the 2014 CA, and made the suggested
citation changes except for Kramer et. al 2011, which is used in the
context of genetic relationships between penstemon species.
(80) Comment: One commenter recommended that we include pollinator
scarcity as a threat.
Our Response: We included pollinator scarcity as an impact under
energy development and exploration in the 2014 CA (see Table 4. Threats
to Graham's and White River Beardtongues and Associated Conservation
Actions). This threat is being reduced by establishing conservation
areas and limiting disturbance, which will allow pollinators adequate
habitat and secondary floral resources.
(81) Comment: One commenter was concerned that we used a lower
population number of 11,423 to characterize the population of White
River beardtongue compared to the 25,000 as estimated by other sources.
Our Response: Our population number of 11,423 plants of White River
beardtongue in the proposed rule was determined from the best
scientific and

[[Page 46063]]

commercial data available, based on more recent data than the higher
population estimate the commenter suggest using. Since the publication
of the proposed rule, we received additional survey information that
increased our estimate of the population of White River beardtongue to
12,215 plants.
(82) Comment: A couple of commenters stated that we made
contradictory conclusions regarding the certainty of oil shale
development. The commenters gave examples, such as the Draft Economic
Screening Memorandum, which acknowledges the uncertainty of the
viability of oil shale development, whereas the proposed rule states
that oil shale development is ``highly likely.'' In addition, the
proposed rule concluded that oil shale development will occur sooner,
and to a greater extent than concluded by the Draft Economic Screening
Memorandum. The commenters concluded that we should revise the
estimates of the magnitude of threats from energy development.
Our Response: Based on our analysis as discussed under Summary of
Factors Affecting the Species, Energy Exploration and Development, we
found that without protections, oil shale development is a threat to
the species in the foreseeable future. Our Draft Economic Screening
Memorandum assessed only the economic impacts from designating critical
habitat, and thus some of the conclusions of the memorandum differ from
our assessment of threats to the species, as they are evaluating
different questions.
(83) Comment: One commenter stated that the 2014 CA restricts and
prohibits the ability of leasees to develop their mineral rights
adequately. The commenter stated that the BLM cannot restrict
additional surface disturbance on existing leases once the disturbance
caps as defined in the 2014 CA are reached.
Our Response: Surface disturbance caps within conservation areas
are sufficient to allow reasonable access to existing leases with
current technology. BLM has committed to limiting surface disturbance
within conservation areas.
(84) Comment: One commenter stated that the 91.4 m (300 ft) buffer
around plant occurrences in the draft conservation agreement is too
large, and there is no demonstrated need for such a large buffer.
Instead, the commenter recommends a 30.5 m (100 ft) buffer with dust
suppressant measures.
Our Response: Our review of available literature shows that impacts
to plants from dust can extend out to 1,000 m (3,281 ft), and
additional impacts from surface-disturbing activities can extend to
2,000 m (6562 ft) (Service 2014a, entire). The greatest impacts occur
closest to the disturbance, and the 91.4 m (300 ft) buffer balances
energy development with protection of listed plant species.
(85) Comment: One commenter stated that the 2014 CA should revise
the timeframe when surveys should be conducted in relation to surface-
disturbing activities, so that surveys must be conducted at least one
year prior to surface disturbing activities, and that we should extend
the length of time that surveys are valid (currently one year) so that
surveys are not outdated prior to the commencement of surface-
disturbing activities.
Our Response: The Service has developed guidelines for surveys of
listed plant species in Utah (Service 2011, entire). Our guidelines
state that surveys for listed plant species are good for one year
because seeds may disperse and colonize new areas, or remain in the
seed bank until conditions are favorable. We believe this conclusion
and our guidelines are still valid.
(86) Comment: One commenter asked us to clarify when plant salvage
and mandatory avoidance measures would apply under the implementation
of the 2014 CA.
Our Response: Under the terms of the 2014 CA, plant salvage will
occur voluntarily when plants are directly impacted by surface-
disturbing activities outside of designated conservation areas on non-
federal lands. We did not consider plant salvage in our analysis of the
effectiveness of the 2014 CA to conserve the species, because these
measures are voluntary and cannot be relied upon to protect the species
from threats. However, mandatory avoidance measures were evaluated in
our PECE process. Mandatory avoidance measures occur within all
conservation areas, and within and outside of conservation areas on BLM
lands; in these areas surface-disturbing activities will avoid plants
by a 91.4 m (300 ft) buffer. Surface-disturbing activities may only
occur within 91.4 m (300 ft) of plants if they benefit or reduce
impacts to the species or habitat, and, on non-federal lands, may only
occur if they are approved by the conservation team, or on federal
land, after BLM has conferenced with the Service.
(87) Comment: One commenter stated that the BLM cannot incorporate
the provisions of the 2014 CA into permits and its RMP without
analyzing the impacts through NEPA analysis.
Our Response: The terms of the 2014 CA will be applied to proposed
projects on BLM lands during the NEPA process on those projects, and
will thus not require an RMP amendment in order to implement them. In
the 2014 CA, the BLM agreed to incorporate the terms of this agreement
into its planning process during the next RMP revision, but in the
interim the agency will proceed through the NEPA planning and public
review process on a project-specific basis.
(88) Comment: One commenter stated that mitigation for impacts to
both beardtongue species should be clearly spelled out in the 2014 CA
when avoidance by 91.4 m (300 ft) is not possible. In addition,
mitigation should be considered for impacts over the 5 percent and 2.5
percent disturbance caps. These mitigation measures should be developed
with the involvement of all stakeholders.
Our Response: Surface disturbing activities may only occur within
91.4 m (300 ft) of plants if they benefit or reduce impacts to the
species or habitat and, on non-federal lands, if they are approved by
the conservation team, or on federal lands, if BLM has conferenced with
the Service. Mitigation for unavoidable impacts will be determined on a
project-specific basis. Successful ecological restoration may be used
in conservation areas on private lands to offset effects over the
disturbance limits set by the 2014 CA.
(89) Comment: One commenter stated that the May 5, 2014 press
release, notice of availability (79 FR 25806), and supporting documents
were confusing to the public because they did not clearly present the
options to protect the beardtongue species including either signing and
enacting the 2014 CA, or listing the species as threatened and
designating critical habitat under the Act. In addition we did not
provide a PECE analysis.
Our Response: Our document stated that: ``We intend to consider
this conservation agreement once it has been signed in our final
decisions on whether to list Graham's beardtongue and White River
beardtongue under the Act, and invite the public to comment on the
agreement and its impact on the conservation of these species, and
whether the draft agreement sufficiently ameliorates the threats to
Graham's beardtongue and White River beardtongue. We intend to evaluate
this agreement under our Policy for Evaluation of Conservation Efforts
When Making Listing Decisions (PECE policy) (68 FR 15100, March 28,
2003; 79 FR 25806, p. 25811).'' Our detailed PECE analysis is now
available for review at http://www.regulations.gov and http://
www.fws.gov/mountain-prairie/species/plants/

[[Page 46064]]

2utahbeardtongues/. See the Ongoing and Future Conservation Efforts and
PECE Analysis sections below for more information.
(90) Comment: One commenter stated that Graham's and White River
beardtongues are different species with different geographical ranges
and population demography and should not be lumped together for listing
and analysis.
Our Responses: We agree that Graham's and White River beardtongues
are different species with different geographical ranges and population
demography, and they were considered separately for our listing
determination. However, they appear in the same listing document
because their ranges overlap and threats to both species are similar.
(91) Comment: One commenter encouraged us to list the species
without designating critical habitat if we decide to enter into the
2014 CA.
Our Response: We have concluded that the 2014 CA adequately reduces
the threats to the species, and we no longer consider either species to
be warranted for listing under the Act.
(92) Comment: One commenter questioned the participation of State
of Utah employees, the Director of SITLA, and Uintah County officials
in the 2014 CA because he doubted their commitment to the species'
conservation based on their track record with conservation of rare
plant species in the past.
Our Response: Through our PECE process we evaluated the
conservation measures of the 2014 CA, past conservation actions, and
the commitments made by state and local organizations. We determined
that the conservation effort, the parties to the agreement that will
implement the effort and the staffing, the funding level, the funding
source and other resources necessary to implement the effort are
identified. Through our PECE analysis we concluded that the
conservation measures in the 2014 CA have a high certainty of being
implemented and effective.
(93) Comment: One commenter stated that increased population
estimates for the species may be the result of increased surveys and
not indicative of an increasing population trend. The commenter noted
that the population estimate of approximately 40,000 Graham's
beardtongue plants is more likely to be 20,000 plants because the
survey data incorporates surveys over a 35-year period and some of the
sites may now be extirpated or reduced in size, or some of the plant
may have been misidentified.
Our Response: We used the best available information to determine
the known population size of each species (see Background-Graham's
beardtongue, Species Information, Distribution and Trends). We
acknowledge that the best available information may contain counts of
plants that no longer occur, but it also may include underestimates of
some populations where plant occupancy was documented but counts were
not provided, in which case we assumed a count of only 1 plant. All
survey information was provided by trained botanists, so it is not
likely that plants were misidentified. We agree that as we increase our
survey effort the number of plants we find also increases, and that
this is not indicative of an increasing population trend.
(94) Comment: One commenter stated that increasing temperatures,
less rainfall, and increased herbivory, in addition to increased
disturbance from roads, dust, and livestock grazing, may push Graham's
beardtongue to extinction over the next 25 years. The commenter
concluded that the 2014 CA term of 15 years is not sufficient in light
of the Enefit mining plan which extends for a period of 30 years.
Our Response: The term of the 2014 CA is 15 years, but can be
renewed by any or all parties at that time to continue to conserve both
beardtongue species. We will re-evaluate the need for protections under
the Act if during or after the period of the 2014 CA either species is
warranted for listing as threatened or endangered. See further
discussion in the Determination section of this document regarding the
foreseeable future of the threats.
(95) Comment: One commenter stated that the 2014 CA could be
considered sufficient to reduce threats to the species if the
termination clause was removed and more permanent protections were
committed to, including designating ACECs on BLM lands and conservation
easements on private lands.
Our Response: We concluded that the conservation measures in the
2014 CA have a high certainty of being implemented and effective. Our
detailed PECE analysis is available for review at http://www.regulations.gov and http://www.fws.gov/mountain-prairie/species/plants/2utahbeardtongues/. See the Ongoing and Future Conservation
Efforts and PECE Analysis sections below for more information.
(96) Comment: A few commenters concluded that we overestimated the
threats to the beardtongue species, specifically fugitive dust,
grazing, OHV use, unauthorized collection, invasive weeds, small
population size, and climate change, and thus the commenters did not
support our finding that the beardtongues are in danger of extinction.
The commenters furthered concluded that if we find that these factors
are not threats to the species individually, then they do not
constitute a cumulative threat to the species.
Our Response: We have determined that the 2014 CA adequately
addresses threats to the species that were identified in our proposed
rule, and the species is no longer considered warranted for listing
under the Act.
(97) Comment: One commenter concluded that we overstated the
threats to the species from future energy development. The commenter
stated that energy development is not a threat to the species because
populations are stable, predictions of future energy development are
not supported, there is no commercial oil shale development in the
Uinta Basin, the two beardtongues species are found on steep slopes
where energy development is more costly, the density of well pads and
size of disturbance from drilling projects are decreasing, and the BLM
already provides protection for the species as a candidate species.
Our Response: Our analysis of the threats to the species shows that
although populations are currently stable, without the 2014 CA
protections they are subject to landscape-level threats from future
energy development. See our analysis and discussion of the threats to
both beardtongue species from energy development under Summary of
Factors Affecting the Species, Energy Exploration and Development.
(98) Comment: One commenter supports the conclusions of the
proposed rules that energy development including oil shale development
and traditional oil and gas drilling poses a threat to the species.
Our Response: We agree that energy development is a threat to the
species; however, we have determined that the 2014 CA adequately
addresses these threats by establishing conservation areas throughout
the range of the species.
(99) Comment: One commenter stated that the 2014 CA does not
address threats where habitat is leased for both oil and gas
development and oil shale development and does not provide information
on existing surface disturbance.
Our Response: We have concluded that the 2014 CA addresses the
threats of oil shale and traditional oil and gas development by
establishing conservation areas, restricting surface disturbance within
these conservation areas, and keeping surface disturbing

[[Page 46065]]

activities at least 91.4 m (300 ft) from Graham's and White River
beardtongues. Calculations of existing surface disturbance are ongoing
and will be incorporated into the 2014 CA once they are available.
(100) Comment: One commenter stated that we should provide
information regarding the seismic project discussed in the proposed
rule.
Our Response: The proposed seismic project is still being evaluated
under the NEPA process by the BLM Vernal Field Office. This seismic
project encompasses 9 sections in Utah and 5 sections in Colorado. The
purpose of the project is to assess the potential for oil and gas
development by acquiring information on potential resources present
from four parallel seismic lines totaling 7.3 miles. Additional
information about the project can be found on the Vernal BLM projects
Web page once it is ready for public review at http://www.blm.gov/ut/st/en/fo/vernal/planning/nepa_.html. As discussed below (see Summary
of Factors Affecting the Species, Energy Exploration and Development,
Traditional Oil and Gas Drilling), we view this project as an
indication that traditional oil and gas development will very likely
increase in the habitat of both of these species. However, the 2014 CA
provides protections to avoid, minimize, and mitigate the impacts of
oil and gas development, effectively reducing this threat to the
species.
(101) Comment: One commenter stated that climate change alone poses
a threat to the species. The Colorado Natural Heritage Program's
Colorado Wildlife Action Plan assessed the vulnerability of rare plants
to climate change and found that both Graham's and White River
beardtongues were extremely vulnerable (June 2011). The Utah Heritage
Program model for Graham's beardtongue found that the timing and amount
of moisture was important in the distribution of the species. The
commenter concluded that we must designate critical habitat to conserve
the species instead of relying on the conservation areas delineated in
the 2014 CA.
Our Response: We agree that without protections climate change
poses a threat to the species when considered cumulatively with other
threats. We have concluded that the 2014 CA adequately reduces the
threat of energy development by establishing conservation areas that
protect 64 percent of the population of Graham's beardtongue and 76
percent of White River beardtongue and that span the range of
environmental variation within the species' range. In addition, the
2014 CA addresses climate change with the installation of a weather
station and by studying the response of the two species to weather
patterns. Once we can better predict the two species' response to
climate changes, we can then take measures to address the species'
future needs from the threat of climate change. In addition, the 2014
CA provides for the resiliency, redundancy and representation of both
species by protecting adequate habitat and an adequate percent of the
population in multiple sites that include various slope aspects and
important natural community associates and attributes, such as
pollinators, pollinator nesting sites, and secondary floral resources.
(102) Comment: One commenter asked us to reconsider the effects of
livestock grazing on both species, because there is documentation of
the effects of herbivory to reproduction and effects from other
herbivores that contribute to lost reproduction, trampling effects on
pollinators, declining habitat conditions with several allotments
within the range of both species needing improvement, and low and
sporadic reproduction making it vulnerable to stochastic events and
habitat changes.
Our Response: We agree that without conservation protections,
livestock grazing poses a threat to both species in conjunction with
other threats including energy development. We have addressed these
threats in the 2014 CA, which states that BLM will monitor impacts from
grazing and will adjust grazing regimes accordingly to reduce
associated impacts.
(103) Comment: A commenter stated that small population size poses
a threat to the species because small populations that are fragmented
are more vulnerable to habitat changes and disturbances. The commenter
cited a demography study (McCaffery 2013a, entire) that shows that
neither species is stable, and both species are threatened by small
population sizes and habitat fragmentation.
Our Response: We agree that, without protections, small population
size is a threat to the two beardtongue species when considered
cumulatively with other threats. However, we reviewed the same study
cited by the commenter and came to a different conclusion about the
stability of these populations. Available studies indicate the
monitored sites for Graham's beardtongue are stable (McCaffery 2013a,
p. 15; BLM 2011, p. 6-7). For White River beardtongue, one site was
found to be stable and a second site was close to stable with a very
low chance of extinction over the next 50 years (McCaffery 2013a, p.
15). The 2014 CA protects 64 percent of Graham's beardtongue, and 8 of
the occurrences protected in conservation areas have a 7 percent or
lesser chance of extinction, and 4 occurrences have less than a 2
percent chance of extinction over the next 50 years (McCaffery 2013a,
entire; Service 2014d, entire). The 2014 CA protects 76 percent of
White River beardtongue, and 4 of the occurrences protected in
conservation areas have a less than 1 percent chance of extinction over
the next 50 years (McCaffery 2013a, entire; Service 2014d, entire).
(104) Comment: One commenter stated that Graham's beardtongue has
been surveyed sufficiently and both Graham's and White River
beardtongues are some of the most surveyed species in Utah. Baseline
surveys from 1978 and 1979 show that Graham's beardtongue have declined
since that time period.
Our Response: The best available information based on continuous
and consistent monitoring of Graham's and White River beardtongue from
2004 to 2012 does not indicate that the populations of either species
are declining (BLM 2011, pp. 6-7; McCaffery 2013a, entire).
(105) Comment: One commenter stated that at 12,215 plants, the
population of White River beardtongue is low enough to be considered
for listing as endangered. The commenter noted that about one-third of
the population occurs on BLM lands. The commenter noted that the
population of this species is precarious. Another commenter indicated
that populations of both beardtongue species in Colorado are small, and
thus warranted for protection under the Act.
Our Response: As discussed below under Summary of Factors Affecting
the Species, Small Population size, some species exhibit rarity but are
not warranted for listing under the Act. A species that has always been
rare, yet continues to survive, could be well equipped to continue to
exist into the future. Many naturally rare species have persisted for
long periods within small geographic areas, and many naturally rare
species exhibit traits that allow them to persist despite their small
population sizes. Consequently, the fact that a species is rare does
not necessarily indicate that it may be in danger of extinction in the
foreseeable future. Rarity is a characteristic that may increase a
species' vulnerability to factors such as demographic stochasticity,
environmental stochasticity, genetic stochasticity, and natural
catastrophes. However, whether a given rare species is affected by any
of these factors, and the magnitude of

[[Page 46066]]

the effect of these factors on the species' ability to persist into the
foreseeable future, is species- and context-specific. Consequently, in
general the Service does not consider rarity alone to be a threat,
unless there is information identifying threats to the species and
linking those threats to the rarity of the species.
In this case, the current population size of White River
beardtongue in and of itself does not mean that it is endangered or
threatened. The best information that we have about the population
indicates that White River beardtongue is stable (McCaffery 2013a,
entire; BLM 2011, p. 6-7), and we have concluded that the 2014 CA
sufficiently protects the species from threats. The large occurrence of
White River beardtongue that occurs on BLM lands is protected in a
conservation area.
(106) Comment: One commenter stated that we must consider that the
BLM conservation measures, such as the 91.4 m (300 ft) buffer to
protect the species, are not enforceable, have not been adhered to in
at least one Section 7 consultation, and the BLM travel management plan
will not be sufficient to protect the species from OHV impacts.
Our Response: The Secretary of the Interior (Secretary) has the
authority to manage oil and gas operations on Federal lands. The
Secretary has delegated this authority to the Bureau of Land Management
(BLM), which has issued onshore oil and gas operating regulations
codified at 43 CFR part 3160. The operating regulations at 43 CFR
3164.1 authorize the BLM's Director to issue Onshore Oil and Gas Orders
when necessary to implement and supplement the operating regulations.
In addition 43 CFR 3162.5-1 that deals with environmental obligations
provides that, ``the operator shall comply with the pertinent orders of
the authorized officer and other standards and procedures as set forth
in the applicable laws, regulations, lease terms and conditions, and
the approved drilling plan or subsequent operations plan.'' BLM also
has the authority to determine whether planned activities adhere to
their policies and if they will adversely impact sensitive species.
Therefore, BLM conservation measures are enforceable. We have
determined in our PECE analysis that the conservation measures are
likely to be implemented and effective. See the Ongoing and Future
Conservation Efforts and PECE Analysis sections below for more
information. Off-highway Vehicle use was not considered a threat to the
species, but the 2014 CA includes provisions to ensure that it does not
become a threat in the future (see Summary of Factors Affecting the
Species, Off-highway Vehicle Use).
(107) Comment: One commenter stated that our proposed rules did not
adequately address representation, redundancy, or resiliency as was
defined and considered in the listing of the Preble's Meadow Jumping
Mouse (73 FR 39790).
Our Response: We adequately address resiliency, redundancy and
representation of the species in this document and in the 2014 CA
conservation measures. We address resiliency of the species by
conserving an adequate amount of the species habitat and populations
through the establishment of conservation areas and limiting surface
disturbance within these areas. We address the redundancy of the
species by ensuring there are enough occurrences of the species
throughout its range by establishing conservation areas in each
conservation unit throughout the range of the species. We provide for
the representation of the species by conserving its community
associates through establishing conservation areas that encompass these
associates. Our analyses of representation, resiliency and redundancy
are specific to the species we are evaluating. Therefore, the details
of our analysis for Graham's and White River beardtongues differ from
the Preble's Meadow Jumping Mouse analysis.
(108) Comment: One commenter stated that our proposed rules did not
provide sufficient resiliency for either species as they should protect
suitable unoccupied habitat on other slopes to allow for species'
movement as a result of climate change.
Our Response: We do not have predictive information detailing how
Graham's and White River will respond to climate change in terms of
what areas they may need as refugia. However, both the proposed
critical habitat and the 2014 CA conservation areas include unoccupied
habitat on slopes of various aspects that should allow the species to
adapt to chosen microhabitats as the climate changes. As we are able to
better understand both species responses to climate change, we can work
with the conservation team to modify conservation areas to accommodate
the species needs.
(109) Comment: One commenter concluded that any analysis under our
PECE policy should find that the 2014 CA is not adequate because it is
not certain to be implemented and not certain to be effective.
Our response: We concluded that the conservation measures in the
2014 CA have a high certainty of being implemented and effective. Our
detailed PECE analysis is available for review at http://www.regulations.gov and http://www.fws.gov/mountain-prairie/species/plants/2utahbeardtongues/. See the Ongoing and Future Conservation
Efforts and PECE Analysis sections below for more information.
(110) Comment: One commenter stated that conservation areas that
were established in 2014 CA but not evaluated in our proposed critical
habitat rule should not be considered until they can be determined to
be suitable for the species. Another commenter requested clarification
on what information was used to establish the conservation area
boundaries.
Our Response: The conservation area boundaries were drawn based on
plant occurrences, densities, and population sizes over the range for
each species. We used a kernel density analysis in ArcGIS (Brunson
2013, entire) of known occurrences to identify areas of high density
occurrences which have a lower probability of extinction over the next
50 years (McCaffery 2013a; entire). Conservation areas include the
beardtongue species, insect and community associates, corridors between
occurrences, and additional buffers and habitat for pollinators.

Summary of Changes From the Proposed Rule

Based upon our review of the public comments, comments from other
Federal and State agencies, peer review comments, issues raised at the
public hearing, and new relevant information that has become available
since the publication of the proposal, we have reevaluated our proposed
listing rule and made changes as appropriate. Other than minor
clarifications and incorporation of additional information on the
species' biology and populations, this determination differs from the
proposal in the following ways:
(1) Based on our analyses of the potential threats to the two
species and the protections provided by the 2014 CA, we have determined
that neither Graham's nor White River beardtongue meets the definition
of a threatened or endangered species. This document withdraws our
proposed rule as published on August 6, 2013 (78 FR 47590).
Subsequently, this document also withdraws our proposed rule to
designate critical habitat for these species (78 FR 47832, August 6,
2013).
(2) We have added a discussion of Ongoing and Future Conservation
Efforts, below. The conservation measures in the 2014 CA are included
in this section.

[[Page 46067]]

Ongoing and Future Conservation Efforts

Below we review conservation efforts for Graham's and White River
beardtongues, including those in the 2014 CA. We describe the
significant conservation efforts that are already occurring and those
that are expected to occur in the future. We have also completed an
analysis of the newly initiated and future conservation efforts
pursuant to our Policy for Evaluation of Conservation Efforts When
Making Listing Decisions (PECE) (68 FR 15100, March 28, 2003).
After our withdrawal of the listing for Graham's beardtongue in
2006 (71 FR 3158, January 19, 2006; 71 FR 76024, December 19, 2006)
several stakeholders initiated conservation measures for the species as
outlined in a 2007 Conservation Agreement and Strategy (2007 CAS) for
Graham's beardtongue; these conservation measures included plant
surveys, 91.4-m (300-ft) avoidance buffers on BLM lands, and a
demography study that has been ongoing since 2004. In our 2013 proposed
rule, we determined that these conservation measures were no longer
sufficient to address the threats to the Graham's beardtongue and did
not specifically address threats to White River beardtongue. Since
2007, Utah DNR, BLM, and Uintah County have implemented many of the
conservation measures as described in the 2007 Conservation Agreement.
Despite the positive accomplishments of the 2007 Conservation
Agreement, our 2013 proposed rule identified several threats that would
negatively act on Graham's and White River beardtongues and their
habitat in the future. Threats identified in the 2013 proposed rule
included: (1) Energy exploration and development; and (2) cumulative
impacts of increased energy development, livestock grazing, invasive
weeds, small population sizes, and climate change. We also determined
that existing regulatory mechanisms were not adequately addressing the
future threats from energy development (78 FR 47590, August 6, 2013).
Based on information provided in our proposed rule, land managers,
Uintah and Rio Blanco Counties, and State agencies established a 2014
CA and conservation actions to address the identified threats. The 2014
CA includes the most recent Graham's and White River beardtongue survey
information and establishes conservation areas that will be managed
with limited surface disturbance and avoidance buffers for individual
plants (see Table 3; Figure 3; 2014 CA, entire), as further described
below. The 2014 CA also includes measures to address the cumulative
impacts from energy development, livestock grazing, invasive weeds,
small population sizes, and climate change, in addition to the
inadequacy of regulatory mechanisms identified in our proposed rule (78
FR 47590, August 6, 2013). The term of the conservation agreement is
for 15 years, but can be renewed depending on the success of the
conservation agreement and if signatories are willing. After the 15-
year period, we hope to better understand the intensity and timeframe
of oil shale development, the species distribution within its range, as
well as responses to livestock grazing so that any future conservation
agreement can address those factors appropriately.
The conservation areas designated in the 2014 CA are designed to
ensure redundancy, resiliency, and representation of the species across
their ranges. A species can be conserved (and is thus viable) if it has
adequate representation, resiliency, and redundancy (Shaffer and Stein
2000). Representation, or preserving some of everything, means
conserving not just a species but its associated plant communities,
pollinators, and pollinator habitats. Resiliency and redundancy ensure
there is enough of a species so that it can survive into the future.
Resiliency means ensuring that the habitat is adequate for a species
and its representative components, and populations are of sufficient
size to withstand stochastic events. Redundancy ensures an adequate
number of sites. This methodology has been widely accepted as an
appropriate conservation methodology (Tear et al. 2005, p. 841).
The boundaries of the conservation areas in the 2014 CA were
selected to encompass large populations to ensure species' viability
and smaller populations to provide connectivity and represent the range
of the species. The designated conservation areas include approximately
17,957 ha (44,373 ac) (Figure 3; Table 3). Graham's beardtongue is
divided into five units, and White River beardtongue is divided into
three units, similar to the units that were identified in the proposed
rule to designate critical habitat (78 FR 47832). We are using units
because the boundaries of element occurrences or populations continue
to change rapidly as previously unsurveyed suitable habitat is surveyed
and more plants are found causing population boundaries to expand and/
or merge. Total number of plants for each species within each unit of
the conservation areas is shown in Table 3.

Table 3--Numbers of Graham's and White River Beardtongue Plants by Unit in Conservation Areas
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total number of Total number of White
Unit Graham's beardtongue Number of plants (and River beardtongue Number of plants (and
plants %) in conservation area plants %) in conservation area
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Sand Wash........................................ 2,488 1,842 (74%) N/A N/A
2. Seep Ridge...................................... 8,760 6,693 (76%) N/A N/A
3. Evacuation Creek................................ 21,665 12,238 (56%) 2,070 1,620 (78%)
4. White River..................................... 7,383 4,966 (67%) 9,705 7,171 (74%)
5. Raven Ridge..................................... 37 37 (100%) 440 439 (99%)
---------------------------------------------------------------------------------------------------
Total........................................... 40,333 25,776 (64%) 12,215 9,230 (76%)
--------------------------------------------------------------------------------------------------------------------------------------------------------

Within designated conservation areas for Graham's beardtongue,
surface disturbance will be limited to an additional 5 percent new
surface disturbance, and within designated conservation areas for White
River beardtongue surface, disturbance will be limited to an additional
2.5 percent of new surface disturbance. Where surface disturbance
occurs in designated conservation areas, the disturbance will avoid
plants by at least 91.4 m (300 ft). On BLM-managed lands, Graham's and
White River beardtongue plants will also receive the protection of
91.4-m (300-ft) avoidance buffers at all locations where the plants are
found (i.e., including areas outside of designated conservation areas).
Where disturbance must occur within 91.4 m (300 ft) of plants,
mitigation measures

[[Page 46068]]

must be included in project actions (Table 4; Conservation Action 6).
Mitigation will be designed to offset impacts so that the entire effect
of mitigation is as beneficial or better than a 91.4 m (300-ft)
avoidance.

Table 4--Conservation Measures in the 2014 Conservation Agreement for Graham's and White River Beardtongue
(2014, CA Entire)
----------------------------------------------------------------------------------------------------------------
Threat and associated impacts Conservation action
----------------------------------------------------------------------------------------------------------------
Energy Exploration and Development
Habitat loss/fragmentation.................. 1. Conservation areas totaling 17,957 ha (44,373.4 ac) will be
established by the Agreement. These conservation areas include
2,382 ha (5,886.9 ac) on private and state lands. Within these
conservation areas, development and surface disturbance will be
minimized and consolidated to reduce habitat fragmentation, and
new surface disturbance minimized in conservation areas by the
following actions:
Limiting new surface disturbance to 5 percent per unit on
federal lands and by landowner on non-federal lands for Graham's
beardtongue, and 2.5 percent per unit on federal lands and by
landowner on non-federal lands for White River beardtongue. Units
are shown in Figure 3.
Avoiding plants by 91.4 m (300 ft). Surface disturbing
activities may only occur within 91.4 m (300 ft) of plants only
if it benefits or reduces impacts to the species or habitat. On
non-federal lands surface disturbance within 300 ft of either
species will need to be approved by the conservation team. On
federal lands if surface disturbance is within 300 ft of either
species BLM will first conference with USFWS.
Calculating new surface disturbance from those activities
that include a permanent structure, activities that require a
permit, or new roads or improvements to existing roads in order
to track new surface disturbance and ensure disturbance does not
exceed thresholds in this agreement
3. Successful ecological restoration may be used in conservation
areas on private lands to offset disturbance limits.
Direct mortality from surface disturbance... 4. On federal lands, ground-disturbing activities including oil
and gas exploration and development will conform with BLM special-
status plants species policies, and these species will be treated
as a BLM sensitive species. Within designated conservation areas,
the BLM will do the following:
Limit new surface disturbance to 5 percent per unit for
Graham's beardtongue and 2.5 percent per unit for White River
beardtongue
Survey for plants within 91.4 m (300 ft) of proposed
disturbance
Avoid disturbance within 91.4 m (300 ft) of plants.
Surface disturbing activities may occur within 91.4 (300 ft) of
plants only if it benefits or reduces impacts to the species or
habitat. When this occurs BLM will first conference with USFWS.
Minimize and consolidate development to reduce habitat
fragmentation
Outside conservation areas on federal lands, ground-disturbing
activities will be sited to avoid Graham's and White River
beardtongue plants by 91.4 m (300 ft).
5. On non-federal lands in a conservation area or interim
conservation area, new ground-disturbing activities including oil
and gas exploration and development proponents will follow these
procedures:
Pre-site surveys will be conducted to determine presence
and locations of plants (see Survey and Monitoring requirements
in table notes)
Exploration and development will be limited to 5 percent
new surface disturbance for Graham's beardtongue and 2.5 percent
new surface disturbance for White River beardtongue (high-density
core population areas on non-federal lands are shown in Maps 20-
26 of Appendix A)
Avoid plants by 91.4 m (300 ft). Surface disturbing
activities may occur within 91.4 m (300 ft) of plants only if it
benefits or reduces impacts to the species or habitat and is
approved by the conservation team.
6. On federal and non-federal lands where new surface disturbance
will occur in a conservation area within 91.4 m (300 ft) of
plants, the project proponent will mitigate for impacts. Within 1
year of signing the Agreement, the conservation team will develop
a standardized procedure to address how mitigation is to occur
depending on level of impacts. Examples of mitigation could
include payments into a mitigation fund for minor impacts,
protection of other occupied areas at a ratio specified by the
conservation team, or site-specific mitigation appropriate to
each project as determined by the conservation team.
7. On non-federal land outside conservation areas and interim
conservation areas with approved exploration or plan of
operations permits, conservation actions are encouraged but
voluntary. Good faith, voluntary actions could include avoidance,
minimizing impacts to individual plants, seed collection, plant
salvage and transplant, and experimental reclamation and
restoration treatments.
Indirect disturbance from surface See conservation actions 1-3 described in ``Habitat loss/
disturbance, including increased dust; fragmentation'' above.
introduction and spread of invasive, non-
native plant species; and habitat
fragmentation.
Community and habitat loss and disturbance See conservation actions 1-3.
from surface disturbance, including soil
and vegetation removal.
Restricted pollinator movement, mortality See conservation actions 1-3.
and disturbance from roads and associated
traffic, and energy emissions.
Increased sedimentation and erosion......... See conservation actions 1-3.
Pollinator scarcity......................... See conservation actions 1-6.

[[Page 46069]]

Inadequacy of Existing Regulatory Mechanisms
Lack of range-wide protection............... See conservation actions 1-7.
8. The BLM will ensure that ongoing and future BLM actions support
or do not preclude the species' conservation. All projects in
designated conservation areas and their potential to impact the
species will be reported in the conservation team's annual
report.
9. The BLM will retain Graham's and White River beardtongues on
the BLM special-status species list as a sensitive species with
new ground-disturbing activities avoiding plants by 91.4 m (300
ft) (inside and outside conservation areas), and ensure that the
effects of proposed projects are analyzed for the species.
10. The BLM will consider land exchanges with state and private
landowners to expand or otherwise enhance the value of
conservation areas on federal lands and facilitate the long-term
persistence and recovery of the species, while protecting the
long-term economic sustainability of the area.
11. The BLM will incorporate the provisions of this Agreement or
the latest amendments to this Agreement into its Resource
Management Plan planning process, permitting requirements, agency
planning documents and budgets. Within 3 months of the signature
date of the Agreement, the BLM will incorporate the provisions of
this plan into permits and budgets. During the next planning
cycle, the BLM will incorporate the provisions of this Agreement
into their RMP planning process. The conservation team will
provide an annual report on the implementation of this Agreement.
The report will also include monitoring results and adaptive
management recommendations.
12. If federal land within a conservation area is transferred to
the State of Utah, the state agrees to maintain the designated
conservation areas and protections for the two species in the
transferred parcels, or place lands of comparable or greater
value to the conservation of the species in conservation areas
within the same species unit as approved by the conservation
team.
13. Uintah County will enact an ordinance with associated
enforcement protocols and penalties that adopts the conservation
measures in this Agreement, including limiting new surface
disturbance in conservation areas to 5 percent for Graham's and
2.5 percent for White River beardtongue and avoiding impacts to
plants by 91.4 m (300 ft) in designated conservation areas on non-
federal and non-state lands, within 3 months after the signing of
this Agreement.
14. SITLA will enact a regulation, order, or lease stipulation, as
applicable, within 3 months of signing the Agreement that will
limit new surface disturbance to 5 percent for Graham's and 2.5
percent for White River beardtongue, and avoid impacts to plants
by 91.4 m (300 ft) in designated conservation areas or interim
conservation areas on SITLA lands.
15. The conservation team will develop and implement a
scientifically valid monitoring plan (approved by consensus) to
determine trends in plant populations across the range of the
species. The plan should include continued monitoring at the
current sites established by Red Butte Gardens, and establish
additional monitoring sites to capture range-wide variation in
habitat, climate, and population processes.
16. The conservation team will coordinate annual seed collections
in all areas where the species are present (with landowner
approval), in accordance with USFWS and Center for Plant
Conservation (CPC) guidelines, for placement in storage at Red
Butte Garden and the National Center for Genetic Resources
Preservation. A seed collection plan will be developed and
implemented with approval from the USFWS.
Loss of plants/habitat under federal See conservation actions 8-11 and 15-16.
landownership/management.
Loss of plants/habitat under non-federal In conservation areas on non-federal lands, conservation actions 5-
ownership/management. 7 and 12-16 will minimize and mitigate any loss of individual
plants and habitat.
17. On SITLA interim areas (Class A: 682 ha [1,686.6 ac], Class B:
724 ha [1,789.8 ac]) and private interim areas (140 ha [345.5
ac]) prior to approval of any exploration or plan of operations,
these areas will also have a limit of 5 percent new disturbance
for Graham's and 2.5 percent for White River beardtongue from
baseline as set forth in conservation action 14. In the event
there are surface-mine plan filings that would necessitate the
destruction or removal of habitat, SITLA or the landowner, upon
election to convert all or part of an interim conservation area
to a non-conservation area, will require pre-disturbance surveys,
and to the extent feasible in its reasonable judgment, after
consultation with the conservation team, salvage a minimum of 50
plants or 25 percent of the total population size, whichever is
greater, and collect seed from 50 plants or 25 percent of the
total population size for long-term conservation at Red Butte
Garden of identifiable plants from the disturbance area. To the
extent feasible, pre-disturbance surveys should be initiated a
minimum of 1 year prior to surface-disturbing activities. To the
extent feasible, plants should be salvaged in late fall to
maximize survival and likelihood of transplant success.
Transplant and monitoring of salvaged plants will be overseen by
the conservation team.

[[Page 46070]]

18. On private lands, conservation actions on occupied habitats
outside of designated conservation areas will be entirely
voluntary. Plant and seed salvage and other good faith efforts to
protect plants and restore habitat will be considered, but will
not be mandatory. The conservation team is expected to work with
private entities to promote and provide support for conservation
actions on private lands, and will consider creation of a
conservation credit system for plant salvage, habitat banking,
support of conservation initiatives, and other voluntary
activities that promote the persistence and recovery of the
species. The conservation team should also promote voluntary
restoration and habitat banking or exchanges by private
landowners, where landowners would restore occupied habitat or
dispersal corridors in anticipation of the need for future
revisions of conservation areas on their property or by other
private landowners. Allocation or allowances for landowner
credits for conservation banks or exchanges would be subject to
the authority of the conservation team. The conservation team
would also determine how restored populations and habitats would
be utilized.
Habitat loss and fragmentation.............. See conservation actions 1-3.
Livestock Grazing on BLM-Managed Lands
Herbivory of all or part of aboveground 19. On federal lands where the species co-occur with livestock
portion of vegetative portion of plant. grazing during the growing season (April through September), the
BLM will develop and implement a mitigation and monitoring plan
for each allotment within 1 year of signing this Agreement. If
monitoring identifies that livestock grazing is negatively
affecting the species, the BLM will immediately adjust livestock
management in the allotment to ameliorate those impacts. Short-
term adjustments may include construction of temporary drift
fences to keep livestock away from occupied habitat, and long-
term adjustments may include permanent fencing or modifying the
grazing schedule. In any adjustment made to allotments, the
authorized officer will include consultation, cooperation and
coordination with affected permittees, as stipulated in 43 CFR
4130.3-3. The conservation team will be consulted as necessary.
The conservation team will be apprised of changes and
modifications to management of allotments through annual
reporting to the conservation team.
Herbivory of all or part of the See conservation action 19.
inflorescence.
Trampling of plant and habitat.............. See conservation action 19.
Change in community composition............. See conservation action 19.
Invasive species invasion, spread, and See conservation actions 19 and 20-24.
competition.
Alteration of soil characteristics.......... See conservation action 19.
Road Construction and Maintenance
Direct mortality from surface disturbance... See conservation actions 1-3.
Invasive species invasion, spread, and See conservation actions 20-24.
competition.
Increased dust emissions.................... See conservation actions 1-3.
Restricted pollinator movement from roads... See conservation actions 1-3.
Habitat loss/fragmentation.................. See conservation actions 1-3.
Invasive Weeds
Invasion and establishment of non-native 20. Within 1 year of signing the Agreement, the conservation team
plants. will develop, fund, and implement a weed management plan
(approved by consensus) in conservation areas that includes
repeated annual targeted surveys to detect invasions and
treatment of invasive species as soon as detected. This plan can
be incorporated as part of a range-wide monitoring plan.
21. The weed management plan will identify treatment options for
each known invasive species in the habitat of the species, with
the goal of selecting the most appropriate option that controls
weeds and minimizes adverse effects to Graham's or White River
beardtongues and their native plant community.
22. The conservation team will develop and implement a monitoring
protocol in the weed management plan to determine the
effectiveness of their actions.
23. The conservation team will review and update the weed
management plan annually based on surveys, monitoring, and other
information sources, and create an annual schedule of work
targeting priority areas.
24. The weed management plan will develop and adopt best
management practices for preventing the spread of invasive and/or
exotic plants in the designated conservation areas on federal and
non-federal lands.
Competition................................. See conservation actions 20-24.
Community alteration........................ See conservation actions 20-24.
Small Population Size
Stochastic events........................... See conservation actions 1-7 and 15-16.
25. Historical locations of Penstemon scarious var. albifluvis
near the western end the species' range should be revisited for
collection of new voucher specimens and samples for genetic
testing. The conservation team will plan and implement a
distribution/genetics study to determine overlap and/or division
between Penstemon scarious var. garettii and Penstemon scarious
var. albifluvis geographic ranges as part of this Agreement.
Inbreeding depression....................... See conservation actions 1-7, 15-16, and 25.
Lower sexual reproduction................... See conservation actions 1-7, 15-16, and 25.

[[Page 46071]]

Loss of genetic diversity................... See conservation actions 1-7, 15-16, and 25.
Climate Change..............................
Mortality caused by drought................. 26. As part of demographic monitoring of the species, a component
will be included to study the relationship between precipitation
patterns and species' growth, reproduction and recruitment, and
mortality. This may be accomplished by establishing weather-
monitoring equipment at existing long-term demographic sites
currently monitored by Red Butte Garden.
Stress, lack of reproduction and See conservation action 26.
recruitment, and mortality caused by
shifting rainfall patterns.
Habitat degradation......................... See conservation actions 1-3.
Wildfire
Mortality................................... 27. Any wildfire planning, suppression activities, and post-
wildfire actions on federal and non-federal lands in occupied
habitat will include mitigation consistent with the Agreement and
include preseason input from the conservation team.
Community composition alteration............ See conservation actions 20-24 and 27.
Post-fire response ground disturbance....... See conservation action 27.
Increased invasion and competition from See conservation actions 20-24 and 27.
invasive species.
Off-Road Vehicles
Direct mortality............................ 28. On BLM lands, traffic will be limited to designated routes,
and routes will be considered for closure, limited use, or re-
routing as appropriate to gain compliance and protect designated
conservation areas. This will not include any routes claimed by
Uintah County as public roads.
29. On non-federal lands where off-highway vehicle (OHV) use
occurs, wherever possible, landowners and managers will attempt
to re-route OHV use away from designated conservation areas and
keep traffic on existing roads and trails.
Increased dust load......................... See conservation actions 1-3.
Fragmentation of habitat.................... See conservation actions 1-3.
----------------------------------------------------------------------------------------------------------------
\1\ Survey/Monitoring/Best Management Practices:
Prior to any surface disturbance in federal and non-federal conservation areas, surveys will be conducted within
the area of disturbance and out to 91.4 m (300 ft) from the edge of the disturbance to determine species
presence, population, and distribution. Surveys will follow standard survey protocol as detailed in the USFWS
Utah Field Office Guidelines for Conducting and Reporting Botanical Inventories and Monitoring of Federally
Listed, Proposed and Candidate Plants (2011).
On all federal and non-federal lands, the landowner/manager will collect seeds and/or salvage a portion of
plants from areas to be disturbed to ensure genetic representation of the species. Seeds can be used for
restoration but at least a portion of these seeds should be given to Red Butte and Denver botanic Gardens for
long-term storage.

BILLING CODE 4310-55-P

[[Page 46072]]

[GRAPHIC] [TIFF OMITTED] TP06AU14.004

BILLING CODE 4310-55-C
The 2014 Conservation Agreement will result in the protection of 64
percent of Graham's beardtongue and 76 percent of White River
beardtongues within designated conservation areas. These totals include
protections across the range of both species on Federal, State, and
private lands (Table 5). The remaining Graham's beardtongue plants on
BLM lands outside of the designated conservation areas (representing an
additional 4% of the total population) will be protected by a 91-m
(300-ft) spatial buffer (all known White River beardtongue plants on
BLM lands are within conservation areas). This conservation measure is
consistent with BLM protections for the species since 2007. For our
analysis of whether the 2014 Conservation Agreement

[[Page 46073]]

sufficiently protects both species, we did not consider plants in
conservation areas designated as interim, as these areas provide only
short-term protections. Although these areas may in the future be
converted to permanently designated conservation areas, they do not
provide assurances for the long-term benefit of the species.

Table 5--Conservation Areas by Landowner for Graham's and White River Beardtongues
--------------------------------------------------------------------------------------------------------------------------------------------------------
Size of conservation area in
Species Land ownership hectares (acres) * Number of plants Percent of population
--------------------------------------------------------------------------------------------------------------------------------------------------------
Graham's............................. BLM.................... 15,579 (38,497) 18,702 46.4
State.................. 1,254 (3,099) 2,319 5.75
Private................ 1,128 (2,787) 4,755 11.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total.................. 17,957 (44,373) 25,776 63.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
White River.......................... BLM.................... 8,678 (21,444) 7,482 61.2
State.................. 343 (847) 177 1.5
Private................ 1,170 (2,890) 1,571 12.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total.................. 10,213 (25,238) 9,230 75.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Both species combined................ Total.................. 17,957 (44,373)
--------------------------------------------------------------------------------------------------------------------------------------------------------

PECE Analysis

The purpose of PECE is to ensure consistent and adequate evaluation
of recently formalized conservation efforts when making listing
decisions. The policy provides guidance on how to evaluate conservation
efforts that have not yet been implemented or have not yet demonstrated
effectiveness. The evaluation focuses on the certainty that the
conservation efforts will be implemented and the certainty that the
conservation efforts will be effective. The policy presents nine
criteria for evaluating the certainty of implementation and six
criteria for evaluating the certainty of effectiveness for conservation
efforts. These criteria are not considered comprehensive evaluation
criteria. The certainty of implementation and the effectiveness of a
formalized conservation effort may also depend on species-specific,
habitat-specific, location-specific, and effort-specific factors. We
consider all appropriate factors in evaluating formalized conservation
efforts. The specific circumstances will also determine the amount of
information necessary to satisfy these criteria.
To consider that a formalized conservation effort contributes to
forming a basis for not listing a species, or listing a species as
threatened rather than endangered, we must find that the conservation
effort is sufficiently certain to be (1) implemented, and (2)
effective, so as to have contributed to the elimination or adequate
reduction of one or more threats to the species identified through the
section 4(a)(1) analysis. The elimination or adequate reduction of
section 4(a)(1) threats may lead to a determination that the species
does not meet the definition of threatened or endangered, or is
threatened rather than endangered.
An agreement or plan may contain numerous conservation efforts, not
all of which are sufficiently certain to be implemented and effective.
Those conservation efforts that are not sufficiently certain to be
implemented and effective cannot contribute to a determination that
listing is unnecessary, or a determination to list as threatened rather
than endangered. Regardless of the adoption of a conservation agreement
or plan, however, if the best available scientific and commercial data
indicate that the species meets the definition of ``endangered
species'' or ``threatened species'' on the day of the listing decision,
then we must proceed with appropriate rulemaking activity under section
4 of the Act. Further, it is important to note that a conservation plan
is not required to have absolute certainty of implementation and
effectiveness in order to contribute to a listing determination.
Rather, we need to be certain that the conservation efforts will be
implemented and effective such that the threats to the species are
reduced or eliminated.
Using the criteria in PECE (68 FR 15100, March 28, 2003), we
evaluated the certainty of implementation (for those measures not
already implemented) and effectiveness of conservation measures in the
2014 CA pertaining to Graham's and White River beardtongues. We
determined that the measures will be effective at eliminating or
reducing threats to the species because they protect occupied and
suitable habitat from the effects of energy development, livestock
grazing, invasive weeds, small population size and climate change, by
instituting on-the-ground protections to better manage and regulate
disturbance in occupied habitat and habitats likely used by
pollinators. We have a high degree of certainty that the measures will
be implemented because the conservation team partners have a track
record of implementing conservation measures for these species since
2007. Over approximately the past 6 years of implementation, BLM, the
Utah Department of Natural Resources, and Uintah County have
effectively implemented conservation measures from the 2007
Conservation Agreement for Graham's beardtongue including surveying and
monitoring the populations of both species, and implementing avoidance
buffers from ground-disturbing activities on BLM lands.
New conservation measures are prescribed by the 2014 CA and are
already being implemented (see Table 3), including additional surveys
and genetic studies. The 2014 CA has sufficient annual monitoring and
reporting requirements to ensure that all of the conservation measures
are implemented as planned, and are effective at removing threats to
Graham's and White River beardtongues and their habitat. The
collaboration between the Service, Uintah County, Rio Blanco County,
the Utah Division of Wildlife Resources (UDWR), SITLA, PLPCO, and BLM
requires regular conservation team meetings and involvement of all
parties in order to fully implement the conservation agreement. Based
on the implementation of previous actions of members of the
conservation team, we have a high level of certainty that the

[[Page 46074]]

conservation measures in the 2014 CA will be implemented and effective,
and thus they can be considered as part of the basis for our final
listing determination for Graham's and White River beardtongues.
Our detailed PECE analysis is available for review at http://www.regulations.gov and http://www.fws.gov/mountain-prairie/species/plants/2utahbeardtongues/.

Summary of Factors Affecting the Species

Section 4 of the Act (16 U.S.C. 1533), and its implementing
regulations at 50 CFR part 424, set forth the procedures for adding
species to the Federal Lists of Endangered and Threatened Wildlife and
Plants. Under section 4(a)(1) of the Act, we may list a species based
on any of the following five factors: (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; and (E) other natural or manmade
factors affecting its continued existence. Listing actions may be
warranted based on any of the above threat factors, singly or in
combination. Stressors that fall under each of these factors are
discussed below individually. We then summarize where each of these
stressors or potential threats falls within the five factors.
In 2008 and 2012, we participated in expert workshops--including
experts from The Nature Conservancy, Red Butte Garden, the Utah Natural
Heritage Program (UNHP), the Colorado Natural Heritage Program (CNHP),
BLM, and the Natural Resources Conservation Service to evaluate the
best available scientific information for Graham's and White River
beardtongues (The Nature Conservancy 2008, entire; Service 2012c,
entire). We used the information from these workshops to complete a
species status assessment for both Graham's and White River
beardtongues. We determined that both species need the following
resources for viability:
Suitable soils and geology.
Sufficient number of pollinators.
Intact associated and adjacent plant community (both
within and outside of suitable or occupied habitat).
Minimum reproductive effort or reproductive success.
Suitable microclimate conditions for germination and
establishment.
Sufficient rain and temperatures suitable for breaking
seed dormancy and successful reproduction (natural climate).
Minimum habitat patch or population size.
Genetic diversity or heterozygosity.
Habitat connectivity and integrity.
Viable, long-lived seedbank.
Minimum number of individuals.
Minimum number of viable populations.
The general list is the same for both Graham's and White River
beardtongues because they grow in similar habitats in the same
geographic area, even overlapping in places. However, specifics for
each resource can differ between the two species.
To determine the current and future status of Graham's and White
River beardtongues, through our species status assessment we evaluated
if these resource needs are currently met and how these resources are
likely to change in the future. If the resources are not currently met
or are predicted to be unmet in the future, we determined the cause of
the resource insufficiency. The underlying stressor causing the
resource insufficiency is then considered as a potential threat to
Graham's and White River beardtongues. We discuss these stressors in
the following section.

Energy Exploration and Development

In our 2013 proposed rule, we concluded that energy development was
a threat to Graham's and White River beardtongues because the species'
ranges overlap almost entirely with oil shale and tar sands development
areas, and traditional oil and gas drilling.
Potential impacts from energy exploration and development include
the removal of soil and vegetation when unpaved roads, well pads,
evaporation ponds, disposal pits, and pipelines are constructed (BLM
2008a, pp. 448-449). Increased disturbance from these developments,
coupled with climate change (see Climate Change, below), would
facilitate the invasion and spread of nonnative species such as
cheatgrass (Bromus tectorum), halogeton (Halogeton glomeratus), purple
mustard, and Russian thistle (Salsola tragus) (Brooks and Pyke 2001,
entire; Grace et al. 2001, entire; Brooks 2003, p. 432; Friggens et al.
2012, entire), which can outcompete native plants and increase the risk
of catastrophic wildfires (see Wildfire and Invasive Weeds, below).
Energy development also results in increased road traffic and
subsequent increases in dust emissions; for every vehicle travelling 1
mile (1.6 km) of unpaved roadway once a day, every day for a year,
approximately 2.5 tons of dust are deposited along a 305-m (1,000-ft)
wide corridor centered on the road (US Forest Service 1983, entire).
Excessive dust can clog plant pores, increase leaf temperature, alter
photosynthesis, and affect gas and water exchange (Sharifi et al. 1997,
p. 842; Ferguson et al. 1999, p. 2, Lewis 2013, entire), negatively
affecting plant growth and reproduction. Dust can affect plants up to
1,000 m (3,280 ft) away from the source (Service 2014a, entire).
Effects of fugitive dust include species composition changes, altered
soil properties, blocked stomata, reduced foraging capacity of
pollinators, dehydration, reduced reproductive output, and a decline in
reproductive fitness (Service 2014a, entire). A 300-ft buffer is the
minimum distance needed in order to protect sensitive plant species
(Service 2014a, p. 9).
Roads may act as a barrier to pollinator movement, for example by
influencing bees to forage on only one side of the road (Bhattacharya
et al. 2003, pp. 42-43) or within isolated habitat patches (Goverde et
al. 2002, entire). Although bees and other pollinators are quite
capable of crossing roads or other human-disturbed areas, the high site
fidelity of bumblebees makes them more apt to remain on one side of a
disturbed area (Bhattacharya et al. 2003, p. 42). The implications of
this type of pollinator behavior for rare plants is that the
probability for outcrossing is reduced (Cane 2001, entire), thereby
reducing genetic variability and reproductive success.
Habitat loss or fragmentation from energy development can result in
higher extinction probabilities for plants because remaining plant
populations are confined to smaller patches of habitat that are
isolated from neighboring populations (Jules 1998, p. 1; Soons 2003, p.
115). Habitat fragmentation and low population numbers pose a threat to
rare plant species' genetic potential to adapt to changing
environmental conditions (Mathies et al. 2004, pp. 484-486). Smaller
and more isolated populations produce fewer seeds and pollen, and thus
attract fewer and a lower diversity of pollinators (Paschke et al.
2003, p. 1,258; Lienert 2004, p. 62); for a more complete discussion,
see Small Population Size, below.
2014 CA protections--The 2014 CA establishes 17,957 ha (44,373 ac)
of conservation areas on private, State, and public lands across the
range of both beardtongue species--encompassing 64 percent of the known
Graham's beardtongue individuals and 76 percent of the known White
River beardtongue individuals. New surface disturbance acreage will be
limited in designated conservation areas to 5 percent for Graham's
beardtongue and 2.5 percent

[[Page 46075]]

for White River beardtongue by landowner within each unit. The allowed
new surface disturbance of 5 percent of the current baseline for
Graham's beardtongue is higher than the 2.5 percent of the current
baseline allowed for White River beardtongues, due to the larger range
of the Graham's beardtongue. This is less disturbance than the Utah
standards for traditional oil and gas well pad spacing, which is
roughly equivalent to 13 percent surface disturbance per section when
considering one well per 40 acres and an average surface disturbance of
5.2 acres for each and associated infrastructure (Utah Administrative
Code R649-3-2. Location and Siting of Vertical Wells and Statewide
Spacing for Horizontal Wells). In addition, any limited surface
disturbance within designated conservation areas will avoid plants by
91.4 m (300 ft). This avoidance distance will provide habitat and
connectivity for pollinators and minimizes the effects of disturbance,
which are greatest closest to the source. In addition, 300 ft is the
standard avoidance buffer distance recommended to Federal agencies in
the Service's Section 7 consultations on nontribal lands for listed
plants within the Uinta Basin based on a review of relevant literature
(Service 2014a).
The BLM will institute additional protections on lands it manages
outside of designated Conservation Areas by requiring surveys and
avoidance of plants by 91.4 m (300 ft) from surface-disturbing
activities. This measure protects an additional 1,631 plants of
Graham's beardtongue or 4.0 percent of the total population so that a
total of 68 percent is protected by spatial buffers both within and
outside of conservation areas. All but one White River beardtongue
plant on BLM lands are incorporated into the conservation areas. In
addition, the 91.4-m (300-ft) spatial buffer protects Graham's and
White River beardtongue plants that may be found on BLM lands in future
surveys.
Any unavoidable impacts to individual plants will be offset by
mitigation, such as protecting additional plants by adding new
conservation areas or with contributions to a conservation fund that
will be used to support conservation efforts for the plant species.
Overall, the establishment and management of conservation areas reduces
the threats of surface disturbance, dust emissions, pollinator
barriers, and habitat loss and fragmentation from energy development to
Graham's and White River beardtongues by protecting an adequate amount
of the species' (and associated pollinator) habitat and populations
(Table 3 and Table 5), limiting surface disturbance, and maintaining
buffer distances from known and future locations of plants on BLM
lands. Limited surface disturbance within conservation areas will
reduce potential fugitive dust and pollinator barriers impacts that
otherwise may occur with full field development of oil and gas.
Although we expect oil and gas development to continue with negative
effects to a small percent of both populations, a large percent of the
population of both species will be protected by implementing the
measures in the conservation agreement. Therefore, we no longer
consider energy development to be a threat to the species.

Oil Shale and Tar Sands

The Energy Policy Act of 2005 (42 U.S.C. 13201 et seq.) establishes
that oil shale, tar sands, and other strategic unconventional fuels
should be developed to reduce the nation's dependence on imported oil.
The Energy Policy Act (42 U.S.C. 15927(m)(1)(B)) identifies the Green
River Region, including the entire range of Graham's and White River
beardtongues, as a priority for oil shale and tar sands development.
Provisions of the Energy Policy Act of 2005 provide economic incentives
for oil shale development. For example, the restrictions in the Mineral
Leasing Act of 1920 (30 U.S.C. 181 et seq.) limited oil shale lease
sizes to 2,072 hectares (ha) (5,120 acres (ac)), and restricted leasing
opportunities to just one lease tract per individual or corporation.
Lease size restrictions effectively limited development because of a
lack of available acreage to accommodate necessary infrastructure and
facilities. The Energy Policy Act of 2005 now allows an individual or
corporation to acquire multiple lease tracts up to 20,234 ha (50,000
ac) in any one State, loosening the restrictions of the Mineral Leasing
Act of 1920 (Bartis et al. 2005, p. 48).
As we discussed in our January 19, 2006 (71 FR 3158), and August 6,
2013 (78 FR 47590), proposed rules, Graham's beardtongue is closely
associated with the richest oil shale-bearing strata in the Mahogany
ledge, which makes the species highly vulnerable to extirpation from
potential oil shale or tar sands mining (Shultz and Mutz 1979, p. 42;
Neese and Smith 1982, p. 64; Service 2005, p. 5). The economic and
technological feasibility of oil shale and tar sands development was
uncertain when the original proposed listing rule was withdrawn in 2006
(71 FR 76024, December 19, 2006). However, in 2013, the BLM issued the
OSTEIS for commercial leasing for oil shale and tar sands development
in Colorado, Utah, and Wyoming. The 2013 OSTEIS Record of Decision
(ROD) opens 145,848 ha (360,400 ac) in Utah and 10,522 ha (26,000 ac)
in Colorado for oil shale leasing (BLM 2013a, p. 27), and 52,609 ha
(130,000 ac) in Utah for tar sands leasing (BLM 2013a, p. 48).
Leasing for oil shale development on BLM lands has not yet occurred
except for eight Research Development and Demonstration (RD&D) leases
(1 in Utah and 7 in Colorado) (BLM 2013a, p. 15), but the area open for
oil shale leasing and steps needed to gain access to leases on these
lands is authorized through the OSTEIS ROD (BLM 2013a, entire). Tar
sands leasing on BLM lands is not restricted by the RD&D process, and
leases may be obtained through an expression of interest and the BLM
mineral leasing process.
In Utah, 33 and 52 percent, respectively, of Graham's and White
River beardtongues' total populations of known individuals overlap the
BLM-designated oil shale and tar sands leasing areas (Service 2014b,
entire; Table 7 and Table 8). Designated oil shale leasing areas in
Colorado do not overlap known populations for either beardtongue
species and are at least 32 km (20 mi) away from the closest known
populations (Service 2013, p. 7).
A majority of all known Graham's beardtongue and White River
beardtongue plants are directly associated with the Mahogany ledge
where it outcrops or is less than 152 m (500 ft) below the surface
(Service 2013, p. 5). Surface strip mining is likely to be the
preferred extraction method in areas with shallow overburdens (BLM
2012, p. A-22; Institute for Clean and Secure Energy 2013, p. 6),
resulting in the complete loss of all surface vegetation.
About 48 percent and 39 percent, respectively, of Graham's and
White River beardtongues occur on State and private lands where they
were afforded little protection at the time of our proposed rule. We
estimate that most known Graham's and White River beardtongues on State
and private lands occur where the Mahogany layer outcrops or is less
than 152 m (500 ft) below the surface, making these areas more likely
to be surface mined. As a result, plants in these areas are the most
vulnerable to direct loss as oil shale and tar sands development
expands across the region. In addition, land ownership throughout the
Uinta Basin is a checkerboard of private, State, and Federal ownership.
Losses of Graham's and White River beardtongue

[[Page 46076]]

populations on private and State lands would result in indirect impacts
from habitat fragmentation and the loss of population connectivity.
The Utah Division of Oil, Gas and Mining (UDOGM) has approved one
large-scale oil shale mine for Red Leaf Resources, Inc., and six other
exploration mines for oil shale, which overlap the ranges of Graham's
beardtongue and White River beardtongue on private and State lands. In
addition, two more permits for oil shale development, one for a small-
scale mine and one for a large-scale mine, have been submitted to UDOGM
for oil shale development on private or State lands. Red Leaf
Resources, Inc., also announced that its field pilot test conducted in
2008 to 2009 performed as predicted, and they will begin their
commercial operation when their regulatory permits are finalized (Red
Leaf 2013a, entire; Red Leaf 2013b. entire). Red Leaf has filed a
Notice of Intent to commence mining operations (Red Leaf 2014; entire),
which was approved by UDOGM on Feb 20, 2014, and a subsequent amendment
was approved on May 5, 2014 (UDOGM 2014, entire). A third oil shale
development company has identified 2,833-3,642 ha (7,000-9,000 ac) for
subsurface mining and is currently working through the National
Environmental Policy Act (NEPA) process with BLM (BLM 2013e, p. 1). In
our 2013 proposed rule (78 FR 47590), we knew of three oil shale
projects and explorations that were planned or ongoing on private,
State, and BLM lands in Uintah County, Utah. As of March 2014 we know
of five planned and ongoing projects for oil shale on private and State
lands, including commencement of commercial scale development (Table
6).
Private and State lands (including SITLA lands) do not have the
multistep regulatory requirements that Federal lands have, and they are
presently available for oil shale development (Institute for Clean and
Secure Energy 2013, p. 5). In addition, the oil shale resources on
SITLA lands have, ``the potential to support a sizeable commercial
shale industry, and its resources are readily developable'' (Institute
for Clean and Secure Energy 2013 p. 5). The SITLA has sold oil shale
leases that overlap both species and includes 23 percent and 9 percent
of the total known populations of Graham's beardtongue and White River
beardtongue, respectively.
A market study of development of oil shale found that ex-situ
extraction methods would break even at market values for oil at $77.32
to $91.65 per barrel including hurdle costs, depending on the
technology, with air-fired technology at the lower end (Institute for
Clean and Secure Energy 2013, pp. 140-142). Enefit Energy estimates
operating costs for oil shale energy development to be considerably
lower at $35 per barrel (Enefit 2014, entire). Crude oil prices for
Utah have been above $78 per barrel in 27 of the past 36 months
(January 2011-December 2013) with annual averages above $82 per barrel
from 2011 to 2013 (US EIA 2014a, entire). Forecasts show that prices
are to remain above the threshold of $78 per barrel through the end of
the analysis period of 2015 (EIA 2014b, p. 28). In addition, the
reference price for oil is expected to be above $92 per barrel from
2015 to 2040 (US EIA 2014c, p. 6). Despite the current lack of
commercial-scale oil shale operations, the technology is feasible, the
resource is available--35,701 ha (88,220 ac) of SITLA lands have been
leased, 145,848 ha (360,400 ac) of Federal lands in Utah will be made
available for leasing after conducting RD&D projects, Red Leaf filed a
Notice of Intent in 2014 to commence a large scale oil shale mining
operation, and crude oil prices are projected to remain at favorable
levels. All these factors lead us to conclude that oil shale
development is highly likely to happen in the future.

Table 6--Current and Proposed Oil Shale and Tar Sands on State and Private Lands Affecting Graham's and White
River Beardtongues
----------------------------------------------------------------------------------------------------------------
Maximum Maximum
disturbance disturbance
\1\ Graham's White River Protection under 2014
Project Project status beardtongue beardtongue CA \2\
(percent of (percent of
population) population)
----------------------------------------------------------------------------------------------------------------
Enefit American Oil............... NEPA process ongoing. 15.2 24.4 2,900 acres in
conservation area.
Red Leaf Resources................ Utah Division of Oil, 3.8 0.17 0
Gas and Mining
(UDOGM) large mine
permit active.
Ambre Energy...................... UDOGM small mine 0.75 8.1 < 10 acres in interim
permit active. conservation area.
TOMCO Energy...................... UDOGM large mine 15.4 0 1,053 acres in
permit in process. interim conservation
area--likely to be
developed during the
15-year 2014
conservation
agreement.
PetroDome North America........... UDOGM small mine 3.3 0.6 0
permit in process.
TOTAL......................... ..................... 38.25 32.87 .....................
----------------------------------------------------------------------------------------------------------------
1. Maximum disturbance assumes that all beardtongues on the entire property owned or leased are affected by oil
shale development operations.
2. Conservation areas will abide by the conditions of the 2014 Conservation Agreement (CA) for the 15-year term
of the CA. Interim conservation areas will follow the measures of the 2014 CA until such time as the lessee is
ready to develop, which may be shorter than a 15-year timeframe. Interim conservation measures were not
considered in our analysis as they provide only temporary protection to the species.

Tar sands extraction is also technically feasible (Institute for
Clean and Secure Energy 2013, p. 12). Tar sands lease areas on BLM
lands overlap 20 and 0.1 percent of the total known populations of
Graham's and White River beardtongues, respectively. The impacts of tar
sands mining will be similar to those from oil shale mining. We are
aware of only one approved tar sands project in Utah (Service 2014, p.
3), and the project does not overlap with any known populations of
Graham's or White River beardtongues. There are three active
exploration permits on record with UDOGM and one proposed exploration
project (Service 2014c, p. 3). None of these projects overlap with

[[Page 46077]]

known locations of either beardtongue species.
In summary, the project initiation and the recent BLM leasing
decisions indicate the renewed interest in oil shale and tar sands
mining and the increased likelihood of development across the ranges of
these two species. Over 60 percent of Graham's beardtongue and White
River beardtongue plants are directly associated with shallow
outcroppings of the Mahogany ledge, which are likely to be surface
mined, resulting in the complete loss of vegetation. We estimate that
as much as 81 and 91 percent of the total known populations of Graham's
and White River beardtongues, respectively, would be vulnerable to
direct loss and indirect negative impacts such as habitat fragmentation
from oil shale and tar sands development without additional
protections. However, the 2014 CA provides protections to avoid,
minimize, and mitigate the impacts of oil shale and tar sands
development, including the establishment of conservation areas and use
of surface-disturbance avoidance buffers, effectively reducing threats
to the species (see discussion of 2014 CA Protections under Energy
Exploration and Development). The establishment of conservation areas
will reduce the threats to the species from oil shale and tar sands
development by protecting 64 percent and 76 percent of Graham's and
White River respectively from large-scale surface disturbance and
habitat fragmentation. Therefore, we no longer consider oil shale and
tar sands development to be a threat to the species.

Traditional Oil and Gas Drilling

Historically, impacts to both beardtongue species from traditional
oil and gas development were largely avoided because development within
the species' habitat was minimal. However, the previously described
Energy Policy Act of 2005 enables leasing of oil and gas and tar sands
separately, even when the two are found in the same area. Previously,
the law required a combined tar sands/oil and gas lease, effectively
delaying leasing and extraction of oil and gas in tar sand areas
because of concerns about conflicts between tar sands and traditional
oil and gas development. Overall, the Energy Policy Act of 2005
effectively opened the entire range of both species to leasing for oil
and gas development and made that leasing more efficient and effective.
At the time of publication of our 2013 proposed rule, the impacts
of traditional oil and gas development on Graham's and White River
beardtongues were expected to be high (BLM 2008b, p. 457). Although a
high level of development within these species' habitats was not yet
realized, we expected it to increase in the future. Most of the ranges
of Graham's and White River beardtongues are underlain with deposits of
traditional hydrocarbon resources, primarily natural gas (Service 2013,
p. 8). In the past two decades, oil and gas production in Uintah
County, Utah, has increased substantially. For example, oil production
in Uintah County increased about 60 percent from 2002 to 2012, and gas
production increased about 25 percent over this same time period (UDOGM
2012, entire). Drilling activities in Uintah County continue to
increase: The number of new wells drilled in Uintah County was 316 in
2009, 631 in 2012 (UDOGM 2012, entire), and 521 in 2013 (UDOGM 2014,
entire).
To update and quantify how much drilling has occurred within
Graham's and White River beardtongues' habitat, we used the following
methods to identify an analysis area for impacts to the species based
upon the currently known plant locations and adjacent essential
pollinator habitat. For Graham's beardtongue, we created an analysis
area using known locations plus a distance of 700 m (2,297 ft) for
pollinators. For White River beardtongue, we created an analysis area
using known locations plus a distance of 500 m (1,640 ft) for
pollinators. These distances (700 m and 500 m) were based on pollinator
travel distance for important pollinators for each species (see Species
Information, ``Biology'' for each plant, above) and also matched our
proposed critical habitat designation (78 FR 47832; Aug. 6, 2013). We
then calculated the number of wells currently drilled within these
areas.
Within the Graham's beardtongue analysis area, well drilling has
occurred at a comparatively slow pace thus far: As of March 2014, 88
well pads were developed or approved within the analysis area for
Graham's beardtongue, and the majority (75) of these are in Utah
(Service 2014b, entire), which also corresponds to the majority of the
range of the species. We do not know the area of actual surface
disturbance associated with each well, so we estimated 2 ha (5 ac) of
surface disturbance per well pad (BLM 2008b, p. 4-3)), including
disturbance from associated roads and pipelines. Accordingly, we
estimate that 103 ha (255 ac) of Graham's beardtongue habitat are
disturbed from energy development, which is less than 1 percent of the
total area included within the analysis area across the Graham's
beardtongue's range.
Development within the White River beardtongue analysis area is
similar; as of March 2014, 21 well pads were developed or approved in
the White River beardtongue analysis area, 13 of which are in Utah
(Service 2014b, entire). Less than 1 percent (26 ha (65 ac)) of the
total area included within the White River beardtongue analysis area is
likely disturbed by existing oil and gas activities.
Approximately 27 percent of the analysis areas for Graham's
beardtongue and 13 percent for White River beardtongue, respectively,
on State and Federal land are leased for traditional oil and gas
development (Service 2014b, entire). At the time of this analysis, one
planned seismic exploration project overlaps with habitat for both
beardtongue species. The initiation of this project indicates that
traditional oil and gas development will very likely increase in the
habitat of both of these species. Our estimate of impacts is likely an
underestimate because we do not have information about how much private
land is planned for development.
Although some oil and gas drilling has impacted individuals of
Graham's and White River beardtongues, development is not at a high
enough level to negatively impact the species. Populations monitored
for 9 years have been stable (Dodge and Yates 2011, entire), and
neither beardtongue appears to suffer from pollinator limitation
(Lewinsohn and Tepedino 2007, entire; Dodge and Yates 2009, p. 12).
However, substantial numbers of Graham's and White River beardtongue
individuals (and their habitat) occur in areas that are leased for oil
and gas development (Tables 5 and 6), and thus it is reasonable to
conclude that the impacts of oil and gas activity will increase in the
future as additional areas are developed. However, the 2014 CA provides
protections to avoid, minimize, and mitigate the impacts of oil and gas
development, including the establishment of conservation areas and use
of surface-disturbance avoidance buffers, effectively reducing threats
to the species (see discussion under 2014 CA protections under Energy
Exploration and Development section above). Therefore, we no longer
consider traditional oil and gas development to be a threat to the
species.

Summary of All Energy Development

Since our proposed rule (78 FR 47590) we have learned of additional
planned oil shale projects that overlap

[[Page 46078]]

known Graham's or White River beardtongue plant locations. If these
projects are fully implemented, their direct impacts would reduce the
redundancy and representation of both species. Although commercial
production of oil shale and tar sands is in its infancy, the
commencement of several large projects and State permitting of one
large oil shale mining operation indicates progress toward imminent
future development of oil shale and tar sands resources within the
range of these species. Without protective measures (i.e., 2014 CA),
approximately 86 and 100 percent of the total known populations of
Graham's and White River beardtongues (including those in the center of
their ranges) are vulnerable to direct loss and the effects of
increased disturbance. Approximately 62 and 40 percent of Graham's
beardtongue and White River beardtongue, respectively, are on BLM lands
within areas that are either leased for oil and gas development or open
to leasing for oil shale and tar sands; approximately 86 and 100
percent of all known Graham's and White River beardtongue plants fall
within areas that are open for oil shale and tar sands leasing (see
Table 7 and Table 8). Of all known Graham's and White River beardtongue
plants, 27 and 12.5 percent, respectively, fall within areas that are
leased by the BLM and the State of Utah for traditional oil and gas
development.

Table 7--Potential Disturbance to Graham's Beardtongue Across all Landowner Types Prior To and After Enactment
of the 2014 Conservation Agreement (CA)
----------------------------------------------------------------------------------------------------------------
Percent of population Percent of population
vulnerable to disturbance vulnerable to disturbance with
without 2014 CA Protections 2014 CA Protections
Graham's beardtongue ---------------------------------------------------------------
Number of Percent of Number of Percent of
plants total plants total
----------------------------------------------------------------------------------------------------------------
Existing BLM oil and gas leases................. 4,619 11.5 770 2
BLM oil shale and tar sands lease areas......... 13,449 33 910 2
Total number of plants that overlap with all 16,085 40 1,436 4
energy types on BLM lands or leases............
Existing State of Utah oil, gas, and oil shale 11,212 29 9,458 23
leases.........................................
Private lands (we assume all of these lands are 8,525 21 3,761 9
open to energy development of any kind)........
Total number of plants that overlap with all 35,126 87 14,345 36
energy types across all landowners.............
----------------------------------------------------------------------------------------------------------------

Table 8--Potential Disturbance to White River Beardtongue Across all Landowner Types Prior To and After
Enactment of the 2014 Conservation Agreement (CA). Numbers May Not Sum Due to Rounding
----------------------------------------------------------------------------------------------------------------
Percent of population Percent of population
vulnerable to disturbance vulnerable to disturbance with
without 2014 CA protections 2014 CA protections
White River beardtongue ---------------------------------------------------------------
Number of Percent of Number of Percent of
plants total plants total
----------------------------------------------------------------------------------------------------------------
Existing BLM oil and gas leases................. 1,238 10 1 <0.001
BLM oil shale and tar sands lease areas......... 5,899 48 0 0
Total number of plants that overlap with all 7,038 58 1 0
energy types on BLM lands or leases............
Existing State of Utah oil, gas and oil shale 1,276 10 1,100 9
leases.........................................
Private lands (we assume all of these lands are 3,458 28 1,884 15
open to energy development of any kind)........
Total number of plants that overlap with all 11,772 96 2,985 24
energy types across all landowners.............
----------------------------------------------------------------------------------------------------------------

However, as described above (Energy Exploration and Development,
2014 CA Protections) and in our PECE analysis, the 2014 CA provides
additional protections, including the establishment of conservation
areas and use of surface disturbance avoidance buffers, effectively
reducing threats from energy development to the species. Therefore, we
no longer consider energy development to be a threat to either species.
Grazing and Trampling
In our 2013 proposed rule we found grazing to be a contributing
factor to cumulative threats to the species, but not a threat by itself
(see Cumulative Effects from All Factors, below). Invertebrates,
wildlife, and livestock graze directly on individuals of Graham's and
White River beardtongues (Sibul and Yates 2006, p. 9; Dodge and Yates
2010, p. 9; 2011, pp. 9, 12; UNHP 2012, entire). Grazers feed on all
parts of the plant, including the seeds, damaging or destroying
individual plants and effectively reducing their reproductive success.
It is likely that livestock are not the primary grazers of Graham's
or White River beardtongues. High rates of herbivory occur from
invertebrates, rabbits, cattle, deer, and sheep, and herbivory results
in reduced fruit and seed production (Dodge and Yates 2011, pp. 7, 9).
In particular, tiger moth caterpillars (possibly Arctia caja utahensis)
have been identified foraging on Graham's beardtongue plants (Dodge and
Yates 2011; Tepedino 2012).
At one study site, herbivory rates (measured by the number of
plants browsed) were as high as 68 percent, but fluctuated greatly
(Dodge and Yates 2011, entire). Herbivory appeared to decrease at times
due to delayed plant development during cool, wet springs (Dodge and
Yates 2011, pp. 10-11).

[[Page 46079]]

Despite high levels of herbivory, the monitored populations were mostly
stable across 9 years (McCaffery 2013a, p. 4). Presumably, beardtongues
would be adapted to herbivory by native grazers, which may explain why
monitored populations continue to remain stable despite high levels of
herbivory.
Grazing occurs throughout the range of Graham's and White River
beardtongues. Approximately 52 percent of all known Graham's
beardtongue plants and 61 percent of all White River beardtongue plants
occur in 19 grazing allotments on BLM lands. Seasons of use vary
considerably, with most allotments grazed over the winter (from
November or December to April), although some allotments are grazed in
the spring and summer (BLM 2008c, pp. J1-4). Grazing in the spring and
summer are more likely to directly impact beardtongue individuals than
grazing in the winter. Most White River beardtongue plants occur within
six allotments: four sheep allotments with a season of use from October
to May, one sheep allotment (Raven Ridge in Colorado) grazed from
November to February, and one cattle allotment with season of use from
April to June and October to February (BLM 2008c, pp. J1-4). Sheep are
more likely to graze on forbs than cattle (Cutler 2011, entire), thus
beardtongue individuals within sheep allotments are more likely to be
grazed than those in cattle allotments. Sheep grazing can result in the
removal of inflorescences of Graham's beardtongue, thereby preventing
reproduction from occurring (Reisor 2014b; p. 2). Overall, grazing
pressure may have less of an impact on the beardtongues now than it has
in the past--in the past decade, BLM has reduced the number of grazing
sheep by half on many of the allotments (Cutler 2011, entire). Grazing
also likely occurs across areas owned by other landowners, although we
do not have data on grazing on these other lands.
Besides impacts from grazing, which we do not find is negatively
impacting Graham's or White River beardtongue at the species level,
domestic livestock can impact rare and native plants by trampling them
(71 FR 3158, January 19, 2006). We believe one population of Graham's
beardtongue was eradicated by livestock trampling (Neese and Smith
1982, p. 66). Winter sheep grazing is the principal use across the
range of White River beardtongue habitat, where sheep trailing
(walking) likely results in damage or loss of plants (Franklin 1995, p.
6; UNHP 2012, entire). It is likely that some individuals of both
beardtongue species, and particularly White River beardtongue as it
tends to grow on slightly steeper slopes (see Species Information,
``Habitat'' for both beardtongues above), are afforded some protection
from trampling by cattle, as cattle generally avoid steep slopes.
However, this characteristic would not prevent trampling by sheep,
which are not deterred by steep slopes.
Livestock grazing can negatively impact native plants indirectly
through habitat degradation or by influencing plant community
composition. Across the Colorado Plateau, livestock trampling and
trailing breaks and damages biological soil crusts (Belnap and Gillette
1997, entire); alters plant community composition (Cole et al. 1997,
entire); spreads and encourages weed seed establishment (Davies and
Sheley 2007, p. 179); increases dust emissions (Neff et al. 2008,
entire); and compacts soils, affecting water infiltration, soil
porosity, and root development (Castellano and Valone 2007, entire).
Crusts are not known to be a major component of the soils that Graham's
and White River beardtongues inhabit, but livestock likely have altered
the physical features of the plants' habitats. Although the best
available data do not indicate how livestock grazing has indirectly
impacted Graham's beardtongue or White River beardtongue habitat, the
invasive species cheatgrass, purple mustard, halogeton, and prickly
Russian thistle have been documented growing with both beardtongues
(see Invasive Weeds, below) (Fitts and Fitts 2009, p. 23; CNHP 2012,
entire; Service 2012a, entire; UNHP 2012, entire). We assume that
grazing has caused ecological changes, including nonnative weed
invasion and other physical changes (e.g., loss of biological soil
crusts), within beardtongue habitats (Mack and Thompson 1982, entire;
Cole et al. 1997, entire). We do not know the extent and severity of
these changes.
In summary, herbivory and trampling from grazing on some locations
of Graham's and White River beardtongues appear to be severe during
some years, and it is likely that similar impacts occur across the
ranges of the species. The documented effects of herbivory and
trampling on Graham's and White River beardtongues to date are limited
to a reduction in reproductive output in some years at specific sites
and the possible loss of one historical population, rather than
widespread impacts on habitat or population-level impacts on the
species. Despite high levels of herbivory, monitored populations appear
to be stable. At present, we find that both species have sufficient
resiliency, redundancy, and representation to recover from existing
grazing and trampling impacts, and we do not consider grazing to be a
threat to these species by itself (see Cumulative Effects from All
Factors, below, for more information).
2014 CA protections--The 2014 CA provides conservation measures to
address the effects of livestock grazing on both species wherever they
occur locally. The conservation team will develop and implement a
monitoring plan to detect impacts to Graham's and White River
beardtongues from livestock grazing. Where impacts are detected, BLM
will adjust grazing regimes or take other measures to reduce these
impacts. BLM can adjust grazing regimes by changing the season of use
to ensure plants are not grazed during the growing period, reduce the
number of livestock, rest and rotate pastures, and avoid suitable areas
within pastures. This conservation measure will not only provide us
with better information about the effects of livestock grazing, but it
will also employ conservation measures at specific species occurrences
where livestock grazing may be affecting the species.
Unauthorized Collection
In our 2013 proposed listing rule (71 FR 3158, January 19, 2006),
we determined that unauthorized collection was not a threat to the
species. Graham's beardtongue is a unique and charismatic species that
is prized by collectors and, at least at one point in time, was
available commercially online (71 FR 3158, January 19, 2006). However,
we are not aware of any recent attempts to collect this species without
proper authorizations. Since our 2013 proposed rule (78 FR 47590), we
have no new information about the potential threat of unauthorized
collection. Therefore, we do not consider unauthorized collection a
threat to either beardtongue species.
Off-Highway Vehicle Use
In our 2013 proposed listing rule, we found that the use of off-
highway or off-road vehicles (OHVs) was not a threat to either
beardtongue species. The use of OHVs may result in direct loss or
damage to plants and their habitat through soil compaction, increased
erosion, invasion of noxious weeds, and disturbance to pollinators and
their habitat (Eckert et al. 1979, entire; Lovich and Bainbridge 1999,
p. 316; Ouren et al. 2007, entire; BLM 2008b, pp. 4-94; Wilson et al.
2009, p. 1). However, to date, little OHV use has occurred within the
ranges of Graham's beardtongue and White River beardtongue. For
example, unauthorized OHV use was observed at only four locations
within White River

[[Page 46080]]

beardtongue occupied habitat 10 to 20 years ago (UNHP 2012, entire).
Federal and industry personnel were increasingly using OHVs in oil and
gas field surveys and site location developments prior to 2008.
However, since 2008, the revised Vernal Field Office RMP limits all
vehicles to designated routes (BLM 2008c, p. 46). This protective
measure provides conservation benefits within the habitat of Graham's
and White River beardtongues. We do not have any additional information
regarding impacts to the species from off-highway vehicle use since our
2013 proposal (78 FR 47590). Given the low levels of documented
unauthorized OHV use and the protections provided by the BLM Vernal
RMP, we do not consider OHV use a threat to either beardtongue species.
2014 CA protections--In addition to the protective measures (i.e.,
limited to designated routes) provided in the Vernal RMP, the 2014 CA
specifies that BLM will identify areas for closure or limited use as
needed to protect the species through their travel management process.
On non-Federal lands, landowners will attempt to keep OHV traffic away
from designated conservation areas. These measures will help to prevent
OHV use from becoming a threat to the species in the future.
Road Maintenance and Construction
In our 2013 proposed listing rule we found that road maintenance
and construction was not a threat to Graham's or White River
beardtongues. Roads that cross through rare plant habitat can destroy
habitat and populations, increase road dust, and disturb pollinators
(Trombulak and Frissell 2000, entire). We consider this issue
separately from roads created for oil and gas development (see Energy
Exploration and Development, above), although the effects are the same.
Many unpaved county roads cross through Graham's and White River
beardtongue habitat, and most of these roads have existed for decades.
Plants located near unpaved roads are prone to the effects of dust,
fragmentation, and pollinator disturbance (see Energy Exploration and
Development, above, for a thorough discussion of road effects). Two
long-term monitoring plots for Graham's and White River beardtongues
are immediately adjacent to unpaved roads, and these populations were
stable over nine years of the study (Dodge and Yates 2011, pp. 9, 12;
McCaffery 2013a, pp. 18-19). However, one monitoring plot of White
River beardtongue produces fewer flowers and fruits than other sites of
White River beardtongue, potentially because of increased disturbance
due to the nearby road (Dodge and Yates 2011, p. 12)
Conflicts can also arise from new paved roads or road upgrades, as
described below. For example, in 2012, Seep Ridge Road, a formerly
unpaved county road crossing through occupied Graham's beardtongue
habitat, was realigned and paved. At least 322 individuals were within
91.4 m (300 ft) of the proposed right-of-way, and the project resulted
in direct impacts to at least 31 Graham's beardtongue individuals that
were transplanted out of the widened road right-of-way, but did not
survive (Reisor 2013, entire; Roe 2014, pers. comm.). The paving of
Seep Ridge Road reduced the impacts of fugitive dust, but the widened
road corridor directly decreased the number of plants on the east side
of the road and may impede pollinator movement, leading to this
population of Graham's beardtongue becoming more isolated.
In summary, road maintenance and construction can destroy habitat
and fragment populations, but this impact is site-specific and does not
occur across the entire range of either species. We are not aware of
other road construction or maintenance projects that have occurred, or
are proposed to occur, in areas where they would impact Graham's
beardtongue or White River beardtongue. Therefore, we do not consider
road maintenance and construction to be a threat to either beardtongue
species.
2014 CA protections--The 2014 CA designated conservation areas for
both beardtongue species. Within designated conservation areas, surface
disturbance will be limited to 5 percent new disturbance where Graham's
beardtongue occurs and 2.5 percent new disturbance in areas occupied by
White River beardtongue. In addition, disturbance such as road
construction will avoid plants by 91.4 m (300 ft) within conservation
areas and on BLM lands. These measures will help prevent road
construction and maintenance from becoming threats to the species in
the future.
Wildfire
In our 2013 proposed listing rule we found wildfire to be a
contributor to cumulative threats to the species, but not to be a
threat by itself (see Cumulative Effects from All Factors, below). In
2012, the Wolf Den Fire, believed to be started by dry lightning,
burned 8,112 ha (20,046 ac) in Uintah County, including 394 ha (974
ac), or approximately 1.5 percent, of the area within 700 m (2,297 ft)
of known points of Graham's beardtongue and approximately 563 known
plants (1.4 percent of the total known number of plants). No
individuals of White River beardtongue were affected by this fire.
Fires do not occur frequently in Graham's beardtongue or White River
beardtongue habitat, but fire frequency and intensity is likely to
increase with increased invasive weeds and climate change (see Invasive
Weeds, Climate Change, and Cumulative Effects from All Factors, below,
for more information). In addition, we do not yet know how these
species respond to fire. It is likely that with patchy, low-intensity
burns they would be able to resprout from their roots, which we have
documented in the field for Graham's beardtongue (Brunson 2012,
entire). Overall, we do not consider wildfire alone to be a threat to
either species.
2014 CA protections--The conservation team will provide input into
wildfire planning and post-wildfire actions in designated conservation
areas. This measure will help to prevent unnecessary impacts to the
species from pre- and post-planning and mitigation of wildfire
activities.
Invasive Weeds
In our 2013 proposed listing rule we found invasive weeds to be a
contributor to cumulative threats to the species, but not to be a
threat by itself (Cumulative Effects from All Factors, below).
Cheatgrass, halogeton, prickly Russian thistle, and purple mustard
occur in Graham's beardtongue habitat (71 FR 3158, January 19, 2006;
Service 2012c, entire), and may be extensive at site-specific locations
(Malone 2014, p. 2.). In addition, invasive weeds are numerous in the
habitat and plant communities immediately adjacent to beardtongue
species habitat, most notably in disturbed areas (for example, along
roads and well pads) (Service 2012c, entire).
The spread of nonnative, invasive species is considered the second
largest threat to imperiled plants in the United States (Wilcove et al.
1998, p. 2). Invasive plants--specifically exotic annuals--negatively
affect native vegetation, including rare plants. One of the most
substantial effects is the change in vegetation fuel properties that,
in turn, alters fire frequency, intensity, extent, type, and
seasonality (Menakis et al. 2003, p. 282; Brooks et al. 2004, entire;
McKenzie et al. 2004, entire). Shortened fire return intervals make it
difficult for native plants to reestablish or compete with invasive
plants (D'Antonio and Vitousek 1992, pp. 68-77). Invasive weeds can
exclude native plants and alter pollinator

[[Page 46081]]

behaviors (D'Antonio and Vitousek 1992, pp. 68-77; DiTomaso 2000, p.
257; Mooney and Cleland 2001, pp. 74-75; Traveset and Richardson 2006,
pp. 211-213). For example, cheatgrass outcompetes native species for
soil, nutrients, and water (Melgoza et al. 1990, pp. 9-10; Aguirre and
Johnson 1991, pp. 352-353).
Cheatgrass is a particularly problematic nonnative, invasive annual
grass in the Intermountain West and, as discussed above, has been
documented in Graham's and White River beardtongue habitat. If already
present in the vegetative community, cheatgrass increases in abundance
after a wildfire, increasing the chance for more frequent fires
(D'Antonio and Vitousek 1992, pp. 74-75). In addition, cheatgrass
invades areas in response to surface disturbances (Hobbs 1989, pp. 389-
398; Rejmanek 1989, pp. 381-383; Hobbs and Huenneke 1992, pp. 324-330;
Evans et al. 2001, p. 1,308). Cheatgrass is likely to increase due to
climate change because invasive annuals increase biomass and seed
production at elevated levels of carbon dioxide (Mayeaux et al. 1994,
p. 98; Smith et al. 2000, pp. 80-81; Ziska et al. 2005, p. 1,328).
Overall, invasive species are present but not extensive across most
of the beardtongues' occupied habitats. Therefore, we do not currently
consider invasive weeds alone to be a threat to either beardtongue
species, but we later evaluate cumulative effects with energy
development and climate change (see Cumulative Effects from All
Factors, below for more information.
2014 CA protections--The conservation team committed to developing,
funding, and implementing a weed management plan in designated
conservation areas; the plan will include prevention measures, surveys
to detect invasion, treatment options, and monitoring plans. The
conservation team will develop annual work plans adapted to best
prevent, detect, and manage invasive weeds. When enacted, this
conservation measure will reduce the threats posed by invasive weeds to
both beardtongue species when considered cumulatively with other
impacts.
Small Population Size
In our 2013 proposed listing rule we found small population size to
be a contributor to cumulative threats to the species, but not to be a
threat by itself (Cumulative Effects from All Factors, below). We lack
complete information on the population genetics of Graham's and White
River beardtongues. Preliminary genetic analysis shows that both
beardtongues have less diversity than more common beardtongue species
that have overlapping ranges (Arft unpublished report 2002). As
previously described (see Background, ``Biology'' for both plants,
above), both species have mixed mating systems and are thus capable of
producing seed through self-fertilization or cross-pollination.
However, the highest number of seeds and fruits are produced when
flowers are cross-pollinated (Lewinsohn and Tepedino 2007, pp. 233-234;
Dodge and Yates 2009, pp. 9-11). Increased disturbance and habitat
fragmentation resulting in smaller population sizes could negatively
impact both species because there would be fewer plants available for
cross-pollination.
Small populations and species with limited distributions are
vulnerable to relatively minor environmental disturbances (Given 1994,
pp. 66-67). Small populations also are at an increased risk of
extinction due to the potential for inbreeding depression, loss of
genetic diversity, and lower sexual reproduction rates (Ellstrand and
Elam 1993, entire; Wilcock and Neiland 2002, p. 275). Lower genetic
diversity may, in turn, lead to even smaller populations by decreasing
the species' ability to adapt, thereby increasing the probability of
population extinction (Barrett and Kohn 1991, pp. 4, 28; Newman and
Pilson 1997, p. 360).
Populations of either species with fewer than 150 individuals are
more prone to extinction from stochastic events than larger populations
(McCaffery 2013b, p. 1). Overall, it appears that Graham's beardtongue
has many small populations scattered across its range, although the
largest population (population 19,) contains more than 11,000 plants.
Of the 24 populations of Graham's beardtongue, approximately 13 contain
fewer than 150 known plants. That means more than half the known
populations are more prone to extinction from stochastic events due to
small population size. However, these populations account for only 1.4
percent of the total known number of plants of Graham's beardtongue. In
addition, the species' widespread distribution may contribute to
Graham's beardtongue's overall viability and potential resilience. For
example, small-scale stochastic events, such as the erosion of a
hillside during a flood event, will likely impact only a single
population or a portion of that population. Even larger, landscape-
level events such as wildfires are not likely to impact the species as
a whole (see Wildfire, above). We do not find that small population
size is a species-level concern for Graham's beardtongue (see
Cumulative Effects from All Factors, below, for additional
information).
White River beardtongue has only 8 populations, and 2 of these have
fewer than 150 individual plants. These two smaller populations account
for less than 1 percent of the total species' population. However,
large areas of suitable habitat remain unsurveyed, so this species may
be more widely distributed, and populations are likely to have
different numbers of plants than presented here. Overall, this species'
range is much smaller than that of Graham's beardtongue, and thus we
conclude that White River beardtongue may be more prone to extinction
from landscape-level events. However, in the absence of information
identifying threats to the species and linking those threats to the
rarity of the species, we do not consider small population size alone
to be a threat. A species that has always been rare, yet continues to
survive, could be well equipped to continue to exist into the future.
White River beardtongue likely fits this category, so persistence may
be likely despite its small population size. Many naturally rare
species have persisted for long periods within small geographic areas,
and many naturally rare species exhibit traits that allow them to
persist, despite their small population sizes. Consequently, the fact
that a species is rare does not necessarily indicate that it may be in
danger of extinction in the future.
Based on Graham's and White River beardtongues' current population
numbers and preliminary demographic analyses showing that monitored
sites are, for the most part, stable (McCaffery 2013a, entire), we
conclude that small population size is not currently a threat to these
species. In addition, a population viability analysis for both species
indicates a high likelihood of persistence over the next 50 years for
populations with more than 116 plants for Graham's beardtongue and 259
plants for White River beardtongue. However, we further evaluated
cumulative effects associated with energy development, grazing,
invasive species, and climate change (see Cumulative Effects from All
Factors, below).
2014 CA protections--The designation of conservation areas protect
64 and 76 percent of the populations of Graham's and White River
beardtongues respectively. An additional 4% of Graham's beardtongue
population will be protected by spatial buffers outside of conservation
areas on BLM lands. This conservation measure is consistent with BLM
protections for the species since 2007. Conservation

[[Page 46082]]

areas include subpopulations that are large enough (>116 Graham's
beardtongue and >259 White River beardtongue) that they have a low
chance of extinction over the next 50 years (McCaffrey 2013a). The
conservation areas also protect many of the smaller populations,
ensuring population connectivity. In addition, the conservation team
will plan and implement a study to better understand the genetic
representation of White River beardtongue and how it is related with
other closely related beardtongue species. The protections in the 2014
CA prevent small population size from becoming a threat to either
beardtongue species.
Climate Change
In our 2013 proposed rule we found climate change to be a
contributor to cumulative threats to the species, but not to be a
threat by itself (Cumulative Effects from All Factors, below). Our
analyses under the Act include consideration of ongoing and projected
changes in climate. The terms ``climate'' and ``climate change'' are
defined by the Intergovernmental Panel on Climate Change (IPCC).
``Climate'' refers to the mean and variability of different types of
weather conditions over time, with 30 years being a typical period for
such measurements, although shorter or longer periods also may be used
(IPCC 2007, p. 78). The term ``climate change'' thus refers to a change
in the mean or variability of one or more measures of climate (e.g.,
temperature or precipitation) that persists for an extended period,
typically decades or longer, whether the change is due to natural
variability, human activity, or both (IPCC 2007, p. 78). Various types
of changes in climate can have direct or indirect effects on species.
These effects may be positive, neutral, or negative and they may change
over time, depending on the species and other relevant considerations,
such as the effects of interactions of climate with other variables
(e.g., habitat fragmentation) (IPCC 2007, pp. 8-19). In our analyses,
we use our expert judgment to weigh relevant information, including
uncertainty, in our consideration of various aspects of climate change.
Climate change is potentially impacting Graham's and White River
beardtongues now, and could continue to impact these species into the
future. Over the last 50 years, average temperatures have increased in
the Northern Hemisphere, and extreme weather events have changed in
frequency or intensity, including fewer cold days and nights, fewer
frosts, more heat waves, and more hot days and nights (IPCC 2007, p.
30). In the southwestern United States, average temperatures increased
approximately 1.5 degrees Fahrenheit ([deg]F) compared to a 1960 to
1979 baseline (Karl 2009, p. 129). Climate modeling is not currently
forecasting at a level of detail at which we can predict the amount of
temperature and precipitation change precisely within the limited
ranges of these two beardtongue species. Therefore, we generally
address what could happen under current climate projections based upon
what we know about the biology of these two species.
Climate changes will continue as hot extremes, heat waves, and
heavy precipitation will increase in frequency, with the Southwest
experiencing the greatest temperature increase in the continental
United States (Karl 2009, p. 129). Annual mean precipitation levels are
expected to decrease in western North America and especially the
southwestern States by mid-century (IPCC 2007, p. 8; Seager et al. 2007
p. 1,181), with a predicted 10- to 30-percent decrease in precipitation
in mid-latitude western North America by the year 2050 (Milly et al.
2005, p. 1). These changes are likely to increase drought in the areas
where Graham's and White River beardtongues grow.
We do not have a clear understanding of how Graham's and White
River beardtongues respond to precipitation changes, although generally
plant numbers decrease during drought years and recover in subsequent
seasons that are less dry. Graham's beardtongue may not respond as
quickly as White River beardtongue to increased winter and spring
moisture immediately preceding the growing season (Lewinsohn and
Tepedino 2007, pp. 12-13). In addition, Graham's beardtongue flowering
is sporadic and may be responding to environmental factors that we have
not been able to measure in the field, such as precipitation. Graham's
beardtongue may need more than one year of normal precipitation to
recover from prolonged drought (Lewinsohn 2005, p. 13), although this
hypothesis has not been tested. Conversely, current analyses indicate
that there is no association between regional precipitation patterns
and population demographics (McCaffrey 2013a p. 16), although regional
weather stations used in the analyses are not likely to pick up the
site-specific precipitation that is more likely to influence these
species' vital rates.
That these beardtongues are adapted to living on such hot and dry
patches of soils (even more so than other native species in the same
area) may mean they are better adapted to withstand stochastic events
such as drought. However, increased intensity and frequency of droughts
may offer Graham's and White River beardtongues populations fewer
chances to recover and may lead to a decline in both species. Some
estimate that approximately 20 to 30 percent of plant and animal
species are at increased risk of extinction if increases in global
average temperature exceed 2.7 to 4.5 [deg]F (1.5 to 2.5 [deg]C) (IPCC
2007, p. 48). By the end of this century, temperatures are expected to
exceed this range by warming a total of 4 to 10 [deg]F (2 to 5 [deg]C)
in the Southwest (Karl 2009, p. 129).
Accelerating rates of climate change of the past two or three
decades indicate that the extension of species' geographic range
boundaries toward the poles or to higher elevations by progressive
establishment of new local populations will become increasingly
apparent in the relatively short term (Hughes 2005, p. 60). The limited
range of oil shale substrate that Graham's and White River beardtongues
inhabit could limit the ability of these species to adapt to changes in
climactic conditions by progressive establishment of new populations.
However, some experts believe that it may be possible for these species
to move to other aspects within their habitat in order to adapt to a
changing climate (Service 2012c, entire). For example, Graham's
beardtongue is typically observed on west- or southwest-facing slopes
(see Species Information, ``Habitat'' for Graham's beardtongue, above).
White River beardtongue exhibits a similar characteristic, although
this species is more evenly distributed on different slope aspects (see
Species Information, ``Habitat'' for White River beardtongue, above).
It may be possible for these species to gradually move to cooler and
wetter slope aspects (for example, north-facing hillsides) within oil
shale soils in response to a hotter drier climate (Service 2012c,
entire), but only if these types of habitat are within reasonable seed-
dispersal distances and only if these habitats remain intact with
increasing oil and gas development.
In summary, climate change is affecting and will affect temperature
and precipitation events in the future. We expect that Graham's and
White River beardtongues, like other narrow endemics, may be negatively
affected by climate change-related drought. However, the scope of any
negative effects (i.e., whether they would rise to a level that
threatens the species) is unknown and mostly speculative at this time.
Current data are not reliable enough at the local level for us to draw
conclusions regarding the impacts of

[[Page 46083]]

climate change as a threat to Graham's and White River beardtongues.
However, we further evaluate the potential cumulative effects
associated with energy development, invasive species, and small
population size (see Cumulative Effects from All Factors, below).
2014 CA protections--Since we do not fully understand either
Graham's or White River beardtongues' responses to climate change, the
conservation team, depending on funding, will install weather
monitoring equipment adjacent to long-term monitoring sites to collect
much needed climate data. The data collected from weather monitoring
will be correlated with demography data to determine basic species
responses to climate patterns. This information will help the
conservation team understand how to better craft conservation measures
to address impacts from climate change. In the interim, designated
conservation areas provide 21,106 ha (44,373 ac) of protected habitats
for Graham's and White River beardtongues (see Ongoing and Future
Conservation Efforts).
Inadequacy of Existing Regulatory Mechanisms
In our 2013 proposed rule, we found existing regulatory mechanisms
to be inadequate to protect Graham's and White River beardtongues from
the threats we had identified.

Federal

Within Colorado, the Raven Ridge Area of Critical Environmental
Concern (ACEC) was established in 1997, in part, to protect candidate
and BLM sensitive plant species, including Graham's and White River
beardtongues (BLM 1985, p. 2, BLM 1997, p. 2-17). The Federal Land
Policy and Management Act (FLPMA) (43 U.S.C. 1701 et seq.) defines
ACECs as ``areas within the public lands where special management
attention is required . . . to protect and prevent irreparable damage
to important historic, cultural, or scenic values, fish and wildlife
resources or other natural systems or processes, or to protect life and
safety from natural hazards'' (Sec. 103(a)). Designation as an ACEC
recognizes an area as possessing relevant and important values that
would be at risk without special management attention (BLM 2008b, p. 4-
426). To protect listed and candidate species including the
beardtongues, the Raven Ridge ACEC restricts motorized travel to
existing roads and trails and includes a no surface occupancy (NSO)
stipulation for new oil and gas leases within the ACEC (BLM 1997, pp.
2-19, 2-44). The NSO designation prohibits long-term use or occupancy
of the land surface for fluid mineral exploration or development to
protect special resource values (BLM 2008c, p. 38). However, NSO
stipulations do not apply to valid existing rights (BLM 1997, p. 2-31),
which account for 14 and 11 percent of the total known populations for
Graham's and White River beardtongues, respectively.
Not quite half of all known Graham's beardtongue plants in Colorado
occur within the Raven Ridge ACEC (37 of 81 or 46 percent). About 28
percent (439 of 1,579) of the known White River beardtongue plants in
Colorado also occur within the Raven Ridge ACEC. We expect the NSO
stipulation will continue to provide sufficient protection to the
plants in the ACEC. Twenty-one percent of the Raven Ridge ACEC is
currently leased, and the NSO stipulations for future leasing are in
effect for this entire area; however, conditions of approval such as
avoidance of plants by 300 ft can be identified and incorporated though
the NEPA process. An additional 30 percent of the Raven Ridge ACEC was
proposed for leasing in 2013, but the lease sale is now deferred for
further analysis (BLM 2013b, entire). To date, no wells have been
drilled or approved within the Raven Ridge ACEC (Service 2013, p. 12).
There are no ACECs established for either Graham's beardtongue or White
River beardtongue in Utah.
Both species are listed as BLM sensitive plants in Colorado and
Utah, which affords them limited policy-level protection through the
Special Status Species Management Policy Manual 6840, which
forms the basis for special status species management on BLM lands (BLM
2008a, entire). Because both beardtongue species are considered BLM
sensitive and candidate species under the Act, the BLM currently
protects them as they would listed species. In addition, conservation
measures for Graham's beardtongue from the 2007 CA incorporated by the
Vernal Field Office include a 91-m (300-ft) setback from surface-
disturbing activities (BLM 2008c, p. L-16).
As previously described (see Ongoing and Future Conservation
Efforts), in 2007, a voluntary 5-year conservation agreement for
Graham's beardtongue was signed by the Service, the BLM, and the Utah
DNR. The agreement intended to create a program of conservation
measures to address potential threats to Graham's beardtongue at the
Federal, State, and local levels. Since the conservation agreement was
signed, the BLM has funded surveys for both species, adding 4,000 new
Graham's beardtongue points and 400 new White River beardtongue points
to our files. In addition, a long-term monitoring program on both
species has been ongoing since 2004. However, BLM will not be able to
retain Federal ownership of all occupied habitat, as recommended in the
2007 CA. The Utah Recreational Land Exchange Act of 2009 (Public Law
111-53, signed August 19, 2009) directed the exchange of lands within
Grand, San Juan, and Uintah Counties, Utah, between the BLM and SITLA.
Several of the parcels that were transferred to SITLA include 883 (2
percent) known individual Graham's beardtongue plants within
populations 13 and 16, and the lands occur in areas of high potential
energy development (see Energy Exploration and Development, above). The
land exchange was finalized on May 8, 2014 (SITLA 2014).
The FLPMA requires the BLM to develop and revise land-use plans
when appropriate (43 U.S.C. 1712(a)). The BLM developed a new resource
management plan (RMP) for the Vernal Field Office in 2008 to
consolidate existing land-use plans and balance use and protection of
resources (BLM 2008c, pp. 1-2). Through the Vernal Field Office RMP,
the BLM commits to conserve and recover all special status species,
including candidate species (BLM 2008c, p. 129). However, the RMP
special status species goals and objectives as previously drafted were
not adequate to ensure that all Federal actions avoid impacts to
Graham's beardtongue or White River beardtongue. Conservation measures
previously implemented by the BLM have not fully prevented impacts (for
example, well pad development or road maintenance and construction in
occupied habitat as discussed previously in Energy Exploration and
Development, and Road Maintenance and Construction) to Graham's
beardtongue or White River beardtongue.
2014 CA protections--The 2014 CA provides for additional protection
of the species because BLM will establish conservation areas where new
surface-disturbing activities will be limited to 5 percent for Graham's
beardtongue and 2.5 percent for White River beardtongue; avoid Graham's
and White River beardtongues from surface-disturbing activities by 91.4
m (300 ft); and mitigate impacts when plants cannot be avoided by 91.4
m (300 ft). The BLM will implement the measures of the 2014 CA through
incorporation of the conservation measures in permitting processes and
policy. BLM will incorporate the conservation measures during its next
RMP planning process.

[[Page 46084]]

During oil and gas development activities that have occurred to
date, the BLM minimized some impacts to Graham's beardtongue and its
habitat through incorporation of conservation measures from the 2007
Conservation Agreement. Conservation measures include moving well pad
and pipeline locations to avoid direct impacts to the species. These
measures minimize direct impacts to the species, particularly at the
current low rates of development that have occurred in the habitat.
We conclude that existing and future conservation measures achieved
through the 2014 CA, including the creation of conservation areas,
limiting new surface disturbances, and applying a 91-m (300-ft)
avoidance measure, are sufficient to protect these species.

State

No State laws or regulations specifically protect rare plant
species in Utah or Colorado. Utah law prevents only the harvest or
transport of native vegetation without proof of ownership or written
permission of the landowner or managing State or Federal agency (Utah
Code 78B chapter 8 Section 602). Approximately 27 and 10 percent of all
known plants of Graham's and White River beardtongues, respectively,
occur on State land. After the land exchange as described above, about
29 percent of all known Graham's beardtongue plants will be located on
State lands. We do not know of any White River beardtongues occurring
on lands identified for exchange.
2014 CA protections--As a signatory to the 2014 CA, SITLA, and UDWR
are establishing 794 ha (1,961 ac) of State lands as conservation areas
for Graham's and White River beardtongues. These conservation areas
contain 4.4 percent of the total population of Graham's beardtongue and
1.4 percent of the total population of White River beardtongue. As
previously described, within these conservation areas additional
surface disturbance will be limited to 5 percent for conservation areas
designated for Graham's beardtongue and 2.5 percent for conservation
areas for White River beardtongue, and surface disturbance will avoid
plants by 91.4 m (300 ft) or mitigate unavoidable impacts. The SITLA
will establish these conservation areas with associated conservation
measures through a regulation, director's order, or joint lease
stipulation. With these regulatory mechanisms in place both
beardtongues species are afforded some additional protection on State
lands.

Local

As stated above, approximately 21 and 28 percent of all known
plants of Graham's and White River beardtongues, respectively, occur on
private lands, and the majority of these are in Uintah County, Utah.
2014 CA protections--Through the 2014 CA, Uintah County, Utah, will
enact a zoning ordinance that would designate 2,787 acres of
conservation areas that protect 12 percent (4,764 plants) of Graham's
beardtongue and 13 percent (1,574) of White River beardtongue on
private lands. The ordinance would establish conservation areas and
would adopt the surface-disturbance limits and buffers on private lands
as described in Table 4. The enactment of a zoning ordinance by Uintah
County provides additional regulatory protections to a significant
portion of both beardtongue populations on private lands.

Summary of Inadequacy of Existing Regulatory Mechanisms

In summary, we find that both species will be afforded protection
through the implementation of the 2014 CA and its establishment and
management of conservation areas that protect 64 percent of the
population of Graham's and 76 percent of the population of White River
beardtongues. The BLM will apply necessary regulatory provisions
through permitting and conditions of approval. Uintah County and SITLA
will utilize zoning ordinances and regulations, respectively, to
implement the conservation commitments of the 2014 CA. Because of these
additional conservation measures and implementing regulations
associated with the 2014 CA, we conclude that existing regulatory
mechanisms are adequate to protect both species.
Cumulative Effects From All Factors
In our 2013 proposed rule, we concluded that the cumulative effects
of increased energy development, livestock grazing, invasive weeds,
small population sizes, and climate change were a threat to the two
beardtongue species. The combination of these factors could increase
the vulnerability of these species. Smaller populations, as discussed
above (see Small Population Size), are more prone to extinction, and
these smaller populations could experience more severe effects of other
factors. For example, incremental increases in habitat alteration and
fragmentation from increased energy development (including oil shale,
tar sands, and traditional oil and gas) could increase weed invasion
and fugitive dust, as well as increase the severity of impacts from
other factors such as grazing, as grazers become more concentrated into
undisturbed areas, and road maintenance, as more roads are constructed.
Climate change is likely to augment the ability of invasive,
nonnative species to outcompete native plant species and also reduce
the ability of native plant species to recover in response to
perturbations. Climate change may also change the effects of grazing
events from native grazers to the extent that reproduction of either
beardtongue species is hindered so that populations are no longer
resilient. This scenario underscores the need to protect not only the
associated plant communities within Graham's and White River
beardtongue habitat, but those immediately adjacent to beardtongue
habitat (Service 2012c, entire). Measures such as implementing a 300-ft
buffer from disturbance, connecting populations by protecting areas
between occurrences, and ensuring protection measures are spread across
the range of the species will help to ensure resiliency of both
species.
2014 CA protections--The 2014 CA addresses the threat from energy
development, as well as each of the individual factors that contribute
to the cumulative threats to the species from energy development (see
Energy Exploration and Development), livestock grazing (see Grazing and
Trampling), invasive weeds (see Invasive Weeds), small population size
(see Small Population Size), and climate change (Climate Change). The
2014 CA provides protection to Graham's and White River beardtongues
and their associated plant and pollinator communities at a landscape
level through the establishment and management of the conservation
areas that protect both occupied and suitable habitat. The conservation
area boundaries were drawn to connect populations and include adjacent
natural communities. The 300-ft buffer from disturbance and limited
surface disturbance helps to ensure that the disturbance within
conservation areas is low enough to maintain the integrity of the
natural community. In addition, both species are represented within
conservation areas across their ranges as shown by units in Figure 3.
Thus the conservation areas protect natural areas immediately adjacent
to beardtongue habitat. The implementation, most notably of surface-
disturbance caps and avoidance buffers, ensures the protection of
individual plants, populations, and population

[[Page 46085]]

connectivity. In addition, the 2014 CA provides for monitoring and
adaptive management associated with livestock grazing, invasive weeds,
and climate change. These combined conservation approaches address the
threats identified in the proposed rule independently and thus will
prevent these threats from acting cumulatively.

Determination

As required by the Act, we considered the five factors in assessing
whether the Graham's or White River beardtongue meets the definition of
a threatened or endangered species. We examined the best scientific and
commercial information available regarding present and future threats
to the species. Based on our review of the best available scientific
and commercial information, we find that the current and future threats
are not of sufficient imminence, intensity, or magnitude to indicate
that either the Graham's or White River beardtongue is in danger of
extinction (endangered), or likely to become endangered within the
foreseeable future (threatened), throughout all or a significant
portion of its range. Therefore, Graham's and White River beardtongues
do not meet the definition of a threatened or endangered species, and
we are withdrawing the proposed rules to list Graham's and White River
beardtongues as threatened species and designate critical habitat for
these species. Our rationale for this finding is outlined below.
Graham's and White River beardtongues have restricted ranges
limited to a specific soil type, but where monitored their populations
are stable. The existing numbers of individuals and populations are
sufficient for these species to remain viable into the future. Further,
the distribution of Graham's and White River beardtongues encompasses
and is representative of the known genetic diversity of both
beardtongue species, helping to support the species' resiliency to
stochastic events.
In our proposed rule, we identified several threats that we
expected to significantly impact the status of these species into the
foreseeable future, which was based on the best available scientific
and commercial information at that time. One of the threats to both
beardtongue species identified in the 2013 proposed rule was from
energy development. We concluded that population stability of both
species was likely to deteriorate as habitat loss and fragmentation
from energy development, particularly oil shale and tar sands, was
likely to be a threat to Graham's and White River beardtongues in the
foreseeable future. Our conclusion was based on the extent and
magnitude of energy development that is likely to happen in the
foreseeable future and the lack of adequate measures to protect and
conserve these species. Oil shale and tar sands overlap most of the
known habitat of these species. Up to 79 and 90 percent of the total
known populations of Graham's and White River beardtongues could
potentially be impacted with this type of development within the next
few years, as Redleaf has secured all permits to begin work in 2014
(Redleaf 2014), and project construction for the Enefit project is
planned to start in 2017 (BLM 2013e).
However, since that time, significant ongoing and new conservation
efforts through the 2014 CA have reduced the magnitude of potential
impacts in the future such that these species no longer meet the
definition of a threatened or endangered species. The 2014 CA
establishes conservation areas for both species on Federal, State, and
private lands where surface disturbance will be limited to an
additional 5 percent from the current baseline for Graham's beardtongue
and an additional 2.5 percent from the current baseline for White River
beardtongue and an avoidance buffer of 91.4 m (300 ft) from plants will
be maintained, which is expected to protect the habitat of the species
and their pollinators. On BLM lands, any surface disturbance occurring
inside or outside of conservation areas will avoid Graham's beardtongue
or White River beardtongue by 91.4 m (300 ft).
The conservation measures in the 2014 CA will protect 64 percent of
the population of Graham's beardtongue and 76 percent of the population
of White River beardtongue in conservation areas, maintaining the
resiliency of both species so that they can better withstand cumulative
impacts from invasive weeds, climate change, and small population size.
Another 4 percent of the Graham's beardtongue population will be
protected outside of conservation areas on BLM lands by spatial buffers
that will protect plants from surface-disturbing activities by 300 ft.
This conservation measure is consistent with BLM protections for the
species since 2007. In addition, threats from livestock grazing are
addressed in the 2014 CA by monitoring livestock grazing to better
understand and detect impacts to the species. Where impacts are
detected, BLM will change the grazing regime or take other actions as
necessary to reduce these impacts. This measure provides protection for
both beardtongue species from livestock grazing. Additional measures
include developing and implementing a weed management plan to prevent
and control weed invasions and continued population monitoring. The
conservation team will periodically review the status of Graham's and
White River beardtongue and make adjustments to conservation areas or
conservation measures as appropriate to benefit and conserve the
species. These measures will significantly reduce the threats to the
species from energy development and the cumulative effects from energy
development, livestock grazing, invasive weeds, climate change and
small population size.
Certain conservation measures that are identified in the 2014 CA
will be implemented via regulations, ordinance, and permitting. The
signatory agencies that have implementation authority will put the
regulatory controls in place to assure that these measures will be
adequately implemented, e.g., BLM conditions of approval, County
ordinances, SITLA regulations. In addition, the 2014 CA independently
addresses and reduces the magnitude of each of the threats identified
in the 2013 proposed rule. Addressing and reducing impacts from each
threat individually will prevent them from acting cumulatively.
As summarized in the Ongoing and Future Conservation Efforts and
PECE Analysis sections above, we have a high degree of certainty that
the 2014 CA will be implemented (see Table 3) and effective. We have
determined that the measures will be effective at eliminating or
reducing threats to the species because they protect occupied and
suitable habitat, provide habitat and additional management information
to address the effects of energy development, livestock grazing,
invasive weeds, climate change, small population size, and the
inadequacy of regulatory mechanisms, and institute on-the-ground
protections that better manage and protect habitat and address threats.
We have a high degree of certainty that the measures will be
implemented because several of the conservation team partners have a
track record of implementing conservation measures for the Graham's
beardtongue since 2007. Over approximately the past 6 years of
implementation, BLM, Utah DNR, the Service, and Uintah County have
implemented many of the conservation measures from the 2007 CA for
Graham's beardtongue, including species surveys, habitat modeling,
avoidance of plants by surface-disturbing activities, incorporating the
conservation measures from the

[[Page 46086]]

conservation agreement into the BLM Vernal Field Office RMP, examining
the reproductive biology of the species, and conducting a demography
study of the species. The 2014 CA has sufficient annual monitoring and
reporting requirements to ensure that all of the conservation measures
are implemented as planned, and are effective at removing threats to a
substantial amount of Graham's and Whiter River beardtongues and their
habitat. The collaboration between the Service, Uintah County, Utah
DWR, SITLA, PLPCO and BLM requires regular conservation team meetings
and involvement of all parties in order to fully implement the 2014 CA,
and a process has been agreed to among these entities to achieve this
conservation objective. Based on the implementation of previous actions
from several members of the conservation team, we have a high level of
certainty that the conservation measures in the 2014 CA (for those
measures not already begun), will be implemented and that they will be
sufficiently effective.
In summary, we conclude that the conservation efforts in the 2014
CA have sufficient certainty of implementation and effectiveness that
they can be relied upon in this final listing determination. Further,
we conclude that conservation efforts have reduced or eliminated
current and future threats to Graham's and White River beardtongues to
the point that the species are no longer in danger of extinction now or
in the foreseeable future.
The threat from energy development and especially oil shale
development has been reduced by the conservation measures in the 2014
CA for the foreseeable future as oil shale development is expected to
proceed slowly and avoid plants within established conservation areas
over the next 15 years. Development of oil shale resources over the
next 10-15 years will determine the intensity, magnitude, and long-term
viability of this threat. Continued expansion of oil shale resources
will depend on the industry's success over the next 10-15 years. Since
we cannot predict the demand for energy and the viability of oil shale
development beyond 15 years, the foreseeable future from the threat of
energy development to Graham's and White River beardtongue from oil
shale development is 10-15 years. The threat to the species from the
cumulative impacts of energy development, grazing, invasive weeds,
small population sizes, and climate change is also the same 10-15-year
time period because energy development would be the leading threat to
causing widespread landscape-scale disturbance. Without the threat of
energy development, the other threats do not rise to a level where they
would act cumulatively, and thus these other impacts will not threaten
Graham's and White River beardtongue in the foreseeable future. In
addition, the 2014 CA addresses these threats over the foreseeable
future and may be renewed after 15 years if successful at conserving
the species.
Overall, since we expect the species to persist in their current
distribution and to be protected from threats within 2014 CA designated
conservation areas and on BLM lands, we conclude that they will have
sufficient resiliency, redundancy, and representation to persist now
and in the foreseeable future. Therefore, we are withdrawing our
proposed rule to list Graham's and White River beardtongues as
threatened species. Since these two species will not be listed under
the Act, we are also withdrawing our proposed critical habitat rule as
it is no longer applicable.
We will continue to monitor the status of both species through
monitoring requirements in the 2014 CA, and to evaluate any additional
information we receive. These monitoring requirements will not only
inform us of the amount of disturbance from energy development, impacts
to the species from livestock grazing, and amount of habitat occupied
by invasive weeds within Graham's and White River beardtongues
designated conservation areas, but will also help inform us of the
status of Graham's and White River beardtongues population and
stability. Additional information will continue to be accepted on all
aspects of the species. We encourage interested parties, outside of
those parties already signatories to the 2014 CA, to become involved in
the conservation of the Graham's and White River beardtongues.
If at any time data indicate that protections under the Act may be
warranted, for example, should we become aware of declining
implementation of or participation in the 2014 CA, or noncompliance
with the conservation measures, or if there are new threats or
increasing stressors that rise to the level of a threat to either
species, we will initiate listing procedures, including, if
appropriate, emergency listing pursuant to section 4(b)(7) of the Act.

Significant Portion of the Range

Under the Act and our implementing regulations, a species may
warrant listing if it is an endangered or a threatened species
throughout all or a significant portion of its range. The Act defines
``endangered species'' as any species which is ``in danger of
extinction throughout all or a significant portion of its range,'' and
``threatened species'' as any species which is ``likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range.'' The term ``species'' includes ``any
subspecies of fish or wildlife or plants, and any distinct population
segment [DPS] of any species of vertebrate fish or wildlife which
interbreeds when mature.'' We published a final policy interpreting the
phrase ``Significant Portion of its Range'' (SPR) (79 FR 37578). The
final policy states that (1) if a species is found to be an endangered
or a threatened species throughout a significant portion of its range,
the entire species is listed as an endangered or a threatened species,
respectively, and the Act's protections apply to all individuals of the
species wherever found; (2) a portion of the range of a species is
``significant'' if the species is not currently an endangered or a
threatened species throughout all of its range, but the portion's
contribution to the viability of the species is so important that,
without the members in that portion, the species would be in danger of
extinction, or likely to become so in the foreseeable future,
throughout all of its range; (3) the range of a species is considered
to be the general geographical area within which that species can be
found at the time FWS or NMFS makes any particular status
determination; and (4) if a vertebrate species is an endangered or a
threatened species throughout an SPR, and the population in that
significant portion is a valid DPS, we will list the DPS rather than
the entire taxonomic species or subspecies.
The SPR policy is applied to all status determinations, including
analyses for the purposes of making listing, delisting, and
reclassification determinations. The procedure for analyzing whether
any portion is an SPR is similar, regardless of the type of status
determination we are making. The first step in our analysis of the
status of a species is to determine its status throughout all of its
range. If we determine that the species is in danger of extinction, or
likely to become so in the foreseeable future, throughout all of its
range, we list the species as an endangered (or threatened) species and
no SPR analysis will be required. If the species is neither an
endangered nor a threatened species throughout all of its range, we
determine whether the species is an endangered or a threatened species
throughout a significant portion of its range. If it is, we list the
species

[[Page 46087]]

as an endangered or a threatened species, respectively; if it is not,
we conclude that listing the species is not warranted.
When we conduct an SPR analysis, we first identify any portions of
the species' range that warrant further consideration. The range of a
species can theoretically be divided into portions in an infinite
number of ways. However, there is no purpose to analyzing portions of
the range that are not reasonably likely to be significant and either
an endangered or a threatened species. To identify only those portions
that warrant further consideration, we determine whether there is
substantial information indicating that (1) the portions may be
significant and (2) the species may be in danger of extinction in those
portions or likely to become so within the foreseeable future. We
emphasize that answering these questions in the affirmative is not a
determination that the species is an endangered or a threatened species
throughout a significant portion of its range--rather, it is a step in
determining whether a more detailed analysis of the issue is required.
In practice, a key part of this analysis is whether the threats are
geographically concentrated in some way. If the threats to the species
are affecting it uniformly throughout its range, no portion is likely
to warrant further consideration. Moreover, if any concentration of
threats apply only to portions of the range that clearly do not meet
the biologically based definition of ``significant'' (i.e., the loss of
that portion clearly would not be expected to increase the
vulnerability to extinction of the entire species), those portions will
not warrant further consideration.
If we identify any portions that may be both (1) significant and
(2) endangered or threatened, we engage in a more detailed analysis to
determine whether these standards are indeed met. The identification of
an SPR does not create a presumption, prejudgment, or other
determination as to whether the species in that identified SPR is an
endangered or a threatened species. We must go through a separate
analysis to determine whether the species is an endangered or a
threatened species in the SPR. To determine whether a species is an
endangered or a threatened species throughout an SPR, we will use the
same standards and methodology that we use to determine if a species is
an endangered or a threatened species throughout its range.
Depending on the biology of the species, its range, and the threats
it faces, it may be more efficient to address the ``significant''
question first, or the status question first. Thus, if we determine
that a portion of the range is not ``significant,'' we do not need to
determine whether the species is an endangered or a threatened species
there; if we determine that the species is not an endangered or a
threatened species in a portion of its range, we do not need to
determine if that portion is ``significant.''
Our review determined that there are no concentrations of threats
in any part of the ranges occupied by Graham's or White River
beardtongues. In our 2013 proposed rule, we identified populations 19
and 20 of Graham's beardtongue (Figure 1) and the heart of White River
beardtongue range (Population 3; Figure 2) as vulnerable due to ex-situ
oil shale development. The majority of these populations occurs on
private lands, and provides an important connectivity link between
populations in Utah and Colorado. The 2014 CA addressed these concerns
by providing protections for both species across their ranges,
including protections on private lands within populations 19 and 20 for
Graham's beardtongue and population 3 for White River beardtongue.
Protections include the establishment of conservation areas that
encompass 17,957 ha (44,373 ac) of occupied and suitable habitat,
surface disturbance limits, detection surveys prior to project
initiation, and avoidance of plants by 300 ft from surface-disturbing
activities within conservation areas. Conservation areas will protect
64 percent of the known population of Graham's beardtongue across its
range and 76 percent of the population of White River beardtongue
across its range. In addition, on BLM lands Graham's and White River
beardtongues will be avoided by 300 ft from surface-disturbing
activities. These protections reduce the threats to the species that
otherwise may have been considered geographically concentrated. With
the development and implementation of the 2014 CA, we find no portions
of these species' ranges where potential threats are significantly
concentrated or are substantially greater than in other portions of
their ranges. Therefore, we find that factors affecting each species
are essentially uniform throughout their ranges, indicating no portion
of the range of the two species warrants further consideration of
possible endangered or threatened status under the Act.

Conclusion

Our review of the best available scientific and commercial
information indicates that with the development and implementation of
the 2014 CA, neither Graham's beardtongue nor White River beardtongue
is in danger of extinction (an endangered species), or likely to become
endangered within the foreseeable future (a threatened species),
throughout all or a significant portion of their ranges. Therefore, we
find that listing Graham's beardtongue or White River beardtongue as
endangered or threatened species under the Act is not warranted at this
time.
We request that you submit any new information concerning the
status of, or threats to, Graham's and White River beardtongues to our
Utah Field Office (see ADDRESSES section) whenever it becomes
available. New information will help us monitor these two plant species
and encourage their conservation. If an emergency situation develops
for either of these species, we will act to provide immediate
protection.

References Cited

A complete list of all references cited in this document is
available on the Internet at http://www.regulations.gov at Docket No.
FWS-R6-ES-2013-0081 and Docket No. FWS-R6-ES-2013-0082, or upon request
from the Field Supervisor, Utah Ecological Services Field Office (see
ADDRESSES section).

Authors

The primary authors of this document are the staff members of the
Utah Ecological Services Field Office (see ADDRESSES).

Authority

The authority for this action is the Endangered Species Act of
1979, as amended (16 U.S.C. 1531 et seq.).

Dated: July 22, 2014.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2014-18368 Filed 8-5-14; 8:45 am]
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