Tuesday, December 19, 2006

Part II

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Withdrawal of Proposed Rule to List Penstemon grahamii (Graham’s beardtongue) as Threatened With Critical Habitat; Proposed Rule

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DEPARTMENT OF THE INTERIOR The genus Penstemon consists of Service 2005, pp. 1–13; Decker et al. dicotyledonous plants traditionally 2006, pp. 3–10). Approximately 60 Fish and Wildlife Service placed in the Figwort family percent of the species’ population is on (Scrophulariaceae). Penstemon Bureau of Land Management (BLM) 50 CFR Part 17 grahamii was first collected from a site managed land with the remainder on RIN 1018–AU49 west of the Green River and south of non-Federal lands with State and Sand Wash, in southern Uintah County, private ownership. The five population Endangered and Threatened Wildlife Utah, on May 27, 1933, and from a site habitat units are described in the and Plants; Withdrawal of Proposed north of Sand Wash on the following following paragraphs. Rule to List Penstemon grahamii day (Graham 1937, p. 332). P. grahamii The westernmost Penstemon grahamii (Graham’s beardtongue) as Threatened is an herbaceous perennial plant within population habitat unit, named the Sand With Critical Habitat the sub-genus Cristati (N. Holmgren in Wash Unit (Unit A), occurs in the Cronquist et al. 1984, p. 380). The vicinity of Sand Wash in southwestern AGENCY: Fish and Wildlife Service, species is described in detail in the Uintah and adjacent Carbon and Interior. proposed rule (71 FR 3158). Duchesne Counties, Utah. This ACTION: Proposed rule; withdrawal. We delineated all known locations population habitat unit consists of 10 with extant populations of Penstemon separate occurrences with a population SUMMARY: We, the U.S. Fish and grahamii into 109 occurrences. An estimated at 135 individuals (Shultz and Wildlife Service (Service), withdraw the ‘‘occurrence’’ is defined in this Mutz 1979b, pp. 37–38; Franklin 1993, proposed rule, published in the Federal document as: an area with continuous Appendix D; Utah NHP 2005, pp. 1–4, Register on January 19, 2006 (71 FR suitable habitat with an extant or 21–24, 45–52, 65–80; Service 2005, pp. 3158), to list Penstemon grahamii historical population of P. grahamii 1–13). This unit has relatively small (Graham’s beardtongue) as a threatened delineated on aerial photography numbers (approximately 2 percent of species with critical habitat under the (Service 2005, pp. 1–3, 13). We grouped the species’ total) compared to those Endangered Species Act (Act) of 1973, these occurrences into five population population habitat units in the center of as amended. We have determined that habitat units separated by unoccupied the species’ range. The unit is the most listing is not warranted because threats gaps in the species’ range. A isolated of the species’ population to the species as identified in the ‘‘population habitat unit’’ is defined as habitat units. This portion of the January 19, 2006, proposed rule are not continuous groups of occurrences species’ population has minor significant, and available data do not within 5 kilometers (km) (3 miles (mi)) morphological differences from the indicate that the threats to the species of each other (Service 2005, pp. 4, 7). remainder of its population and may, and its habitat, as analyzed under the Available population data information due to geographic isolation, be five listing factors described in section is summarized for the five population genetically divergent from the 4(a)(1) of the Act, are likely to threaten habitat units rather than each of the 109 remainder of the species’ population or endanger the species in the occurrences (Shultz and Mutz 1979b, pp (Shultz and Mutz 1979a, p. 41). foreseeable future throughout all or a 25–39; Neese and Smith 1982b, pp. A second population habitat unit, significant portion of its range. Our 116–140; Borland 1987 p. 1; Franklin named the Seep Ridge Unit (Unit B), decision to withdraw the proposed rule 1993, Appendix D; Franklin 1995, occurs approximately 27 km (17 mi) east to list Penstemon grahamii also removes Appendix B; Colorado Natural Heritage of the Sand Wash Unit in the Willow the species from candidate status under Program (Colorado NHP) 2005, pp. 1– and Bitter Creek drainages in the the Act. 20; Utah Natural Heritage Program (Utah vicinity of Sunday School Canyon near DATES: The proposed rule published at NHP) 2005, pp. 1–124; Service 2005, pp. the Seep Ridge road in south central 71 FR 3158, January 19, 2006 1–13). Uintah County, Utah. This unit consists concerning Graham’s beardtongue is The 109 occurrences within 5 of 53 separate occurrences with an withdrawn effective December 19, 2006. population habitat units of Penstemon estimated population of 3,200 grahamii collectively form the species’ individuals (Shultz and Mutz 1979b, pp. ADDRESSES: Supporting documentation known range, which is distributed in a 25–39; Utah NHP 2005, pp. 5–20, 25–28, for this rulemaking is available for curved band about 10 km (6 mi) wide 53–56, 61–64, 85–100; Service 2005, pp. public inspection, by appointment, and about 128 km (80 mi) long. These 1–13). This population habitat unit is during normal business hours at the units extend from the Sand Wash and the species’ largest with approximately U.S. Fish and Wildlife Service, Utah adjacent Nine Mile Creek drainages near 52 percent of the species’ total Field Office, 2369 W. Orton Circle, West the point where Carbon, Duchesne, and population. Valley City, Utah 84119. Uintah Counties, Utah, meet; then A third population habitat unit, FOR FURTHER INFORMATION CONTACT: easterly across southern Uintah County named the Evacuation Creek Unit (Unit Larry England, Botanist, at the above to near the Colorado border; then C), occurs approximately 16 km (10 mi) address (telephone 801–975–3330, northerly to a point near the White east of the Seep Ridge Unit in the extension 138; fax 801–975–3331; or e- River where the population band moves Asphalt Wash and Evacuation Creek mail [email protected]). into Colorado to Raven Ridge, the drainages near the abandoned Gilsonite SUPPLEMENTARY INFORMATION: eastern terminus of the species’ range. mining towns of Dragon and Rainbow. The total documented population of P. This unit is in southeastern Uintah Background grahamii is estimated at approximately County, Utah, and adjacent Rio Blanco In this document, it is our intent to 6,200 individuals (Shultz and Mutz County, Colorado, and consists of 31 discuss only those topics directly 1979a, pp. 38–42; Shultz and Mutz separate occurrences with an estimated relevant to the listing and designation of 1979b, pp. 25–38; Neese and Smith population of 2,550 individuals (Neese critical habitat for Penstemon grahamii. 1982a, pp. 63–66; Neese and Smith and Smith 1982b, pp. 115–133, 137– For additional information on the 1982b, pp. 115–140; Borland 1987, p. 1; 140; Franklin 1995, Appendix B, Map 3; species, refer to the proposed rule Franklin 1993, Appendix D; Franklin Utah NHP 2005, pp. 29–32, 37–44, 57– published in the Federal Register on 1995, Appendix B; Colorado NHP 2005, 60, 81–84, 113–120; Service 2005, pp. January 19, 2006 (71 FR 3158). pp. 1–20; Utah NHP 2005, pp. 1–124; 1–13). This population habitat unit is

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the species’ second largest with 31, Fig. 8; Shultz and Mutz 1979a, pp. Colorado Native Plant Society, and approximately 41 percent of the species’ 39–40; Neese and Smith 1982a, p. 64; American Lands Alliance. This total population. Decker et al. 2006, pp. 3–10). ‘‘second’’ petition reiterated biological A fourth population habitat unit, Penstemon grahamii is associated information and information on named the White River Unit (Unit D), with a suite of species similarly adapted increased levels of threat that, for the occurs approximately 8 km (5 mi) north to xeric growing conditions on highly most part, was already in our files. of the Evacuation Creek Unit in Hells basic calcareous shale soils. The A court settlement required us to Hole and Weaver Canyons immediately vascular plant species most commonly submit a proposed rule to list south of the White River. This unit is in associated with P. grahamii are listed in Penstemon grahamii to the Federal eastern Uintah County, Utah, and the proposed rule (71 FR 3158). The Register by January 9, 2006. Our consists of 9 separate occurrences with plant community associated with P. proposed rule to list P. grahamii as an estimated population of 115 grahamii forms a distinctive assemblage threatened with a proposed designation individuals (Neese and Smith 1982b, of plant species dominated by dwarf of critical habitat was published in the pp. 134–136; Franklin 1995, Appendix shrubs and mound-forming perennial Federal Register on January 19, 2006 B, Maps 5–8; Utah NHP 2005, pp. 33– herbaceous plants with relatively low (71 FR 3158). The proposed rule 36, 101–112, 121–124; Service 2005, pp. plant cover. This plant community announced a 60-day public comment 1–13). This population habitat unit is forms small patches within the broader period ending on March 20, 2006. the species’ smallest, with plant communities that characterize the During the public comment period we approximately 2 percent of the species’ southeastern Uinta Basin (Shultz and received a request for a public hearing total. The unit is important as a link Mutz 1979a, p. 40; Neese and Smith and an extension of the public comment between the largest population habitat 1982a, p. 63; BLM 2005, pp. 3–105 to 3– period. We announced the reopening of units to the south and southwest and 109; Graham 1937, pp. 43–47, 59–71). the public comment period and notice the Colorado population to the Pollinators of Penstemon grahamii are of a public hearing in the Federal northeast. listed in the proposed rule (71 FR 3158). Register on April 13, 2006 (71 FR A fifth population habitat unit, named The Colorado NHP has assigned 19158). The public comment period was the Raven Ridge Unit (Unit E), occurs Penstemon grahamii a global extended to May 19, 2006, and a public approximately 11 km (7 mi) northeast of imperilment ranking of G2 and State hearing was held at the Uintah County the White River Unit along the west imperilment ranking of S1. The Utah Building, in Vernal, Utah, on April 26, flank of Raven Ridge and north of the NHP has assigned Penstemon grahamii 2006. White River between Raven Ridge and a global imperilment ranking of G2 and the Utah border in extreme western Rio State imperilment rankings of S2. The Summary of Comments and Blanco County, Colorado. This unit G2 and S2 rankings mean the species is Recommendations consists of 6 separate occurrences with imperiled at Global and State levels During the open public comment an estimated population of 200 respectively. An S1 ranking means the periods between January 19 and March individuals (Borland 1987, p. 1; species is critically imperiled at a State 20, 2006, and April 13 and May 19, Colorado NHP 2005, pp. 1–20; Service level. These rankings, developed by The 2006, we requested all interested parties 2005, pp. 1–13). The population habitat Nature Conservancy, and applied by to submit information pertaining to both unit harbors approximately 3 percent of various NHPs associated with State the proposed listing and critical habitat. the species’ total population and governments, are utilized by the Service We also sought specific information on includes virtually the species’ entire in selecting candidate species and by any available preliminary results from population in Colorado (a portion of a the BLM in selecting ‘‘Special Status the recent lease nominations for small population occurs in at the Species’’ for enhanced conservation research, development, and eastern margin of the Evacuation Creek actions and resource planning. The demonstration of oil-shale recovery Unit at the Colorado-Utah border). As in International Union for the technologies on BLM lands; success of the case of the Sand Wash Unit, the Conservation of Nature has given the ongoing oil-shale or tar-sands Raven Ridge Unit is at the extreme end species a ranking of ‘‘Vulnerable.’’ development projects, particularly in of the species’ range. As such this the Green River formation; available population is important for its Previous Federal Actions economic and technological analyses; representation of a portion of the full The history of Penstemon grahamii as and specific information detailing spectrum of the species’ genetic a candidate species under the Act is definitive effects of these operations on diversity. recounted in detail in the proposed rule environmental resources, as primarily Penstemon grahamii habitat is a (71 FR 3158). It has been a candidate for related to losses of individual plants, discontinuous series of exposed raw listing since 1980 (December 15, 1980; loss or fragmentation of the habitat, and shale knolls and slopes derived from the 45 FR 82480). loss or declines in plant pollinators. Parachute Creek and Evacuation Creek Penstemon grahamii was petitioned Similarly, the Energy Policy Act sets the members of the geologic Green River three times for listing as endangered or stage for increased oil and gas drilling Formation. Most populations are threatened under the provisions of the activities within Penstemon grahamii associated with the surface exposure of Act. The first petition was the initial habitat, so we requested information the petroleum bearing oil-shale Smithsonian list of 1975 (see above). specific to ongoing or proposed actions Mahogany ledge (Cashion 1967, p. 31, The second petition was the Fund for in these areas. Fig. 8; Shultz and Mutz 1979a, pp. 39– Animals’ petition of 1990. This petition The BLM provided us with 40; Neese and Smith 1982a, p. 64; included 401 species the Service had substantial information concerning: Franklin 1993, Appendix D; Franklin assigned category 1 status in its current and projected energy 1995, Appendix B). The trace of the previous notices of review. On October development; grazing use and Mahogany bed correlates very closely 8, 2002, we received a petition management; off-road vehicle (ORV) use with the trace of Penstemon grahamii specifically for P. grahamii from five and management; exotic species (weeds) sites from the vicinity of Sand Wash separate parties—Center for Native control activities; wildland fire control near the Green River to Raven Ridge Ecosystems, Southern Utah Wilderness actions; and the potential for near the White River (Cashion 1967, p. Alliance, Utah Native Plant Society, horticultural collection. In addition,

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BLM provided planning and regulatory correct, clarify, or support statements number of identical or similar direction it will use to ensure the contained in the proposed rule. We have comments, and we consolidated those conservation of the species as a incorporated their comments into the into several categories. consequence of any future development final determination, as appropriate. The Comments Related to Energy of oil-shale or tar-sands that may affect three responding peer reviewers stated Development Impacts to the Species the species. As a consequence we have that all six of the questions asked were and Its Habitat relied heavily on BLM’s comments in adequately addressed in the proposed this final notice withdrawing the rule. One reviewer noted that our Comment 1—No overlap exists proposed rule to list P. grahamii as proposed critical habitat included only between current, proposed, and threatened, incorporating the existing populations, and therefore potential future oil-shale/tar-sands information it provided within our provided a conservative estimate of development and species’ habitat. analysis of threats. potential habitat. This same reviewer Our Response—We evaluated the also agreed that current oil and gas potential for oil-shale and tar-sands Peer Review activity appears to provide little adverse development to impact Penstemon In accordance with our July 1, 1994, affect to the species, but future increase grahamii based largely on the plant’s Interagency Cooperative Policy on Peer in the density of conventional oil and dependence on oil-shale geologic strata. Review (59 FR 34270), we requested the gas wells and the inevitable There are no ongoing commercial oil- expert opinions of six independent development of oil-shale extraction shale or tar-sands activities on Federal specialists regarding pertinent scientific projects would be problematic. lands in the Uinta Basin, Green River or commercial data and assumptions Another peer reviewer stated that formation. We acknowledge that the relating to supportive biological and Penstemon grahamii is clearly a exact location and extent of future oil- ecological information in the proposed narrowly restricted, globally rare shale or tar-sands commercial rule. The purpose of such a review is to species, but most of the information on development in the Uinta Basin is ensure that the listing decision is based the species in Colorado is not current. unknown, and we have considered on scientifically sound data, A lack of recent surveys has resulted in information from BLM regarding—1) the assumptions, and analyses, including uncertainty about its distribution and higher likelihood that oil-shale would input of appropriate experts and population size. He concluded that even progress, at least initially, in the specialists. if future surveys revealed robust Piceance Basin, Colorado, The six experts we requested to populations, the types of threats faced approximately 30 miles east of known P. review the proposed rule were selected by the species would result in a need for grahamii occurrences and 2) geologic on the basis of their expertise on habitat protection. information depicting mineral Penstemon grahamii natural history and The third peer reviewer stated that, in development potential compared to ecology. We requested that they review her opinion, ‘‘* * * the effect of known P. grahamii habitats. Approved the proposed rule and provide any livestock grazing is an additional source nominations under the BLM oil-shale relevant scientific data relating to of stress for a species already grappling Research, Development, and taxonomy, distribution, population with a stressful environment.’’ Demonstration (RD&D) program also do status, or the supporting biological and Therefore, studies of the effects of not overlap known P. grahamii habitat. ecological data used in our analyses of livestock and wildlife exclosures on Comment 2—A high level of the listing factors. We specifically plant vigor and reproduction should be technological and economic uncertainty requested information responding to the a high priority if the species is listed. exists for future oil-shale and tar-sands following six questions. (1) Is our She also felt that the degree of development. description and analysis of the biology, protection provided to Penstemon Our Response—We acknowledge population, and distribution of P. grahamii by BLM’s Area of Critical there is a high level of technological and grahamii accurate? (2) Does the Environmental Concern designations is economic uncertainty, and that proposed rule provide accurate and variable and inconsistent. commercial oil-shale or tar-sands adequate review and analysis of the Although the peer reviewers felt that development is only a potential future factors relating to the threats to the P. our proposed listing rule justified prospect, likely many years away. We grahamii (A. The present or threatened listing, based on the new scientific and have included this information in our destruction, modification, or commercial information concerning the analysis. curtailment of its habitat, B. species’ status received during the Comment 3—Even if industry’s Overutilization for commercial, comment period, we have determined interest in oil-shale mining eventually sporting, scientific, or educational that Penstemon grahamii does not moved near Penstemon grahamii purposes, C. Disease and predation, D. currently warrant protection under the occurrences, experience shows that Adequate regulatory mechanisms, and, Act. industry would likely propose E. Any other natural or man made underground mining techniques, or one factors affecting is continued existence)? Summary of Public Comments and or more of various in-situ recovery (3) Are our assumptions and definition Recommendations processes. There is considerable of suitable habitat logical and adequate? During the public comment periods, flexibility in siting access shafts and (4) Is our delineation and proposal of we received written comments from 37 supporting surface facilities for an critical habitat for this species entities. Twenty-two entities advocated underground mine or in-situ appropriate? (5) Are the conclusions we listing of the species, 12 entities development and they can easily be reach logical and supported by the advocated not listing the species, and 3 placed to avoid critical surface resource evidence we provide? (6) Did we entities did not advocate either listing areas. include all the necessary and pertinent position. The public comments received Our Response—We acknowledge that literature to support our assumptions/ and our responses are summarized there is a high level of technological arguments/conclusions? below. Comments that contained new, uncertainty regarding commercial oil- Three of the six provided comments updated, or additional information were shale development. Until more specific during the initial peer review process. thoroughly considered in this final technological decisions are made, it is All three provided information to determination. We received a large not feasible for us to make conclusions

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regarding the actual effects oil-shale Colorado. Ninety-eight percent of P. in Australia that show complete surface mining may have on Penstemon grahamii individuals are located in the disturbance. grahamii and its habitat. The different Parachute Creek member of the Green Our Response—We acknowledge the mining technologies are discussed in River formation. The Parachute Creek potential impacts of oil-shale mining to our analysis. However, we strongly member is the most important area in Penstemon grahamii habitat, if this recommend that BLM continue to regard to oil-shale. The entire range of mining occurs in habitat occupied by evaluate technological processes and P. grahamii also is sitting on deposits of the species. However, we do not have devise appropriate conservation natural gas. information to conclude that oil-shale measures if commercial development Our Response—We have analyzed the mining will occur in P. grahamii progresses in the future. distribution of Penstemon grahamii habitat. Comment 4—The GIS analysis relative to the potential for energy Comment 11—The Department of the supports the concept that engineering development. Significant economic Interior may attempt to argue that until and economics generally keep oil and questions remain concerning the oil-shale development is shown to be gas wells out of Penstemon grahamii development of the Green River technically and economically viable on habitat. In addition, BLM and industry formation oil-shale and tar-sands. There a commercial scale, it should not be have implemented species inventories are currently no development projects considered a real threat. However, this and avoid special status plant species for this resource proposed anywhere ignores the fact that members of and their habitats. within the known range of P. grahamii, Congress are actively interested in Our Response—Our evaluation or anywhere else in the United States. forcing the BLM to lease large portions concluded that oil and gas wells, to We have included a detailed analysis of of the oil-shale resource now before date, have not been located directly on potential impacts of oil-shale and tar- RD&D projects begin, and that any known Penstemon grahamii locations. sands development, and the current and analysis of economic feasibility must We encourage BLM and the energy future impacts of conventional natural factor in the possibility that the industry to implement appropriate gas drilling and production in the government may be willing to heavily technologies and conservation measures Summary of Factors Affecting the subsidize this experiment. The Service to avoid development that may threaten Species section. must recognize that interest in oil-shale the species and its habitat in the future. Comment 8—Oil-shale processing has will not go away as long as oil is Comment 5—Several conventional oil been attempted many times all over the valuable. The Service must list now and gas exploratory and field world with the same result—failure. The because oil-shale poses an extremely development projects are proposed or processing of oil-shale is far too high magnitude threat to Penstemon underway in or near occupied expensive to be economical. Although grahamii and Congress has made that Penstemon grahamii habitat, the technology for the oil-shale threat more imminent today than it has including—the Resource Development processing may not be quite ready, the been in the past decades. Group, GASCO, Dominion Kings potential for it is very real. Our Response—We acknowledge the Canyon project, Enduring Resource Big Our Response—We acknowledge the potential impacts of oil-shale mining to Pack project, MakJ Little Canon/Bick technological and economic uncertainty Penstemon grahamii if this mining Pack Mountain field development associated with oil-shale development. occurs in habitat occupied by the project, Pioneer Park Ridge 3D Seismic Until and unless technology advances species. However, we do not have project, and Columbine 3D seismic and commercial oil-shale development information to conclude that oil-shale project. plans are proposed, it is inappropriate mining will occur in P. grahamii Our Response—We have included an for us to speculate on the potential scale habitat. evaluation of these projects in our and distribution of commercial oil-shale Comment 12—Several comments analysis and concluded that they do not development. described the direct, indirect, and significantly affect Penstemon grahamii Comment 9—Commenters provided cumulative environmental impacts or its occupied habitat. See our information regarding the current and associated with oil-shale mining. discussion of the impacts of oil and gas projected future increases in oil and gas Our Response—We acknowledge the exploration and development in the development in the Vernal BLM Field potential effects of oil-shale Summary of Factors Affecting the Office area respective to the proposed development on Penstemon grahamii. Species section. critical habitat units. We have evaluated the threat of oil- Comment 6—Industry has historically Our Response—We have evaluated shale mining in our finding. demonstrated no interest in surface ongoing and proposed energy Comment 13—Shell Frontier Oil and mining the Mahogany outcrops. There is development and potential impacts to Gas Corporation’s proprietary In-situ no evidence that potential, foreseeable Penstemon grahamii in our finding. We Conversion Process (ICP) uses oil-shale development would occur in acknowledge the current and projected subsurface heating to convert kerogen the vicinity of the Mahogany ledge increases in oil and gas exploration and contained in oil-shale into ultra-clean outcrops. development in the Uinta Basin. We transportation fuels and gas. Shell’s ICP Our Response—We have evaluated have addressed energy exploration and is more environmentally friendly and the information presented and agree that development in our final rule. Our more efficient than previous oil-shale there is no current active interest, to analysis of the best available scientific efforts. It recovers the resources without date, for oil-shale development along and commercial data reveals that P. conventional mining, uses less water, the Mahogany zone in Penstemon grahamii is not warranted for listing and does not generate large tailing piles. grahamii habitat. Technological and under the Act. Our Response—Our finding discusses economic uncertainties exist to the Comment 10—Shell’s Mahogany various technologies for commercial oil- extent that we cannot conclude that Project in the Piceance Basin provides a shale mining. Certainly any processes there is a certainty of future threats in glimpse of what surface impacts using that also provide environmental this area. in-situ methods would look like—100 protections are preferred. We also Comment 7—Most Penstemon percent surface disturbance. Images acknowledge that technologies are still grahamii are located on a bed of posted on the SkyTruth.org Web site being developed for oil-shale mining petroleum bearing oil-shale in Utah and show impacts at an oil-shale operation and the location and extent of

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commercial oil-shale mining is still measures for this species in oil-shale or grazing allotments in Penstemon uncertain. tar-sands commercial leasing programs. grahamii habitat. Comment 14—The proposed rule, if Regulatory mechanisms and policies Our Response—We concluded that finalized, will impede, if not completely also are available for other land-use grazing does not appear to be a species proscribe, oil-shale development in activities. level threat to Penstemon grahamii, and areas occupied by Penstemon grahamii. Comment 19—Combined hydrocarbon our rationale is presented in the Our Response—Our determination leases (e.g., conventional oil and gas Summary of Factors Affecting the that this species does not warrant listing along with tar-sands) have been issued Species section. We encourage under the Act is based on our to some extent prior to the Energy continued monitoring and conservation assessment of the threats to the species, Policy Act of 2005. There was no real efforts to ensure grazing effects remain as they are known at the time of the restriction to leasing in these areas as minimal in the future. decision, not the potential land portrayed in the Service’s proposed rule Comment 23—Information was management implications of listing. We (71 FR 3158). provided regarding off-road vehicle have evaluated the potential impacts of Our Response—We acknowledge (ORV) use and available conservation oil-shale mining in this finding. there was some opportunity for oil and measures to avoid and minimize Comment 15—There are no present gas leasing prior to the Energy Policy impacts to Penstemon grahamii. threats to the viability of the species, Act of 2005. Energy Policy Act Our Response—We have no either listed in the proposed rule or provisions alleviate some of the prior information to indicate that ORV use is otherwise known. The threats listed in restrictions of oil and gas leasing in the a threat to Penstemon grahamii or its the proposed rule are all perceived tar-sands areas. habitat. To date, little ORV use has been future threats, not current activities. Comment 20—Without listing, the observed in the species’ range. We Our Response—We concur that BLM can only require that proposed encourage continued monitoring and potential threats to Penstemon grahamii facilities be moved 200 meters (m) (656 conservation efforts to ensure ORV from oil-shale and tar-sands feet (ft)) or less, unless special effects remain negligible in the future. development described in the proposed stipulations have been attached to the Comment 24—Overexploitation for rule were speculative, although based lease. Even if one were able to preclude horticultural purposes is a threat to on the best information available to the direct habitat loss under the 200-m (656- Penstemon grahamii. Service. Our analysis in this final rule, ft) limitation, substantial cumulative Our Response—We acknowledge that based on information received after indirect effects and habitat the rarity and beauty of this species publication of the proposed rule, fragmentation are likely to occur if one makes collection a potential concern. recognizes that current impacts to the is simply shuffling disturbance around However, we have no information to species from oil and gas development well by well, rather than actively conclude that collection is impacting do not rise to level to warrant listing conserving critical habitat. wild populations in the species’ native now or for the reasonably foreseeable Our Response—We have considered habitat. We encourage continued future. existing regulatory mechanisms and monitoring and conservation efforts to Comment 16—Destruction of management activities in this finding, ensure horticultural collection remains Penstemon grahamii habitat is and determined that conventional oil a negligible impact in the future. irrevocable. We should not take and gas development lease stipulations Comment 25—Penstemon grahamii irrevocable action for the sake of short- provide sufficient conservation may be at greater risk because of a term economic benefit. measures to prevent extinction of reduced ability to form a large seed bank Our Response—We have evaluated Penstemon grahamii. to act as a buffer in the face of threats to Penstemon grahamii and its Comment 21—The State of Utah population decline, whether this habitat in our finding. Our supports the implementation of a decline is weather-related or caused by determination as to whether or not this Conservation Agreement for the anthropogenic disturbance. species warrants listing under the Act Graham’s beardtongue. Implementation Our Response—Information must be based on our assessment of the of a Conservation Agreement will allow pertaining to the status, life history, and threats to the species as they are known for better species’ inventory, the distribution of Penstemon grahamii has at the time of the decision. opportunity to protect important been reviewed and incorporated into Comment 17—Boom and bust energy habitats, and the opportunity to reduce our analysis. We have noted the cycles have occurred in Uintah County potential threats to the species. presence of small population sizes at for the past 75 years. Penstemon Our Response—Our analysis of the specific locations, but we do not believe grahamii has continued to flourish. best available scientific and commercial that the threats to the species rise to a Our Response—Our finding has taken data indicates that listing Penstemon level that listing is warranted. into consideration the known species’ grahamii under the Act is not warranted Comment 26—Other concerns of population status and trends, as well as at this time. Therefore, it was not increased energy development activities the potential threat of energy necessary to further evaluate in Penstemon grahamii habitat are the development. conservation efforts associated with a incidental spread of noxious and exotic Conservation Agreement. We encourage weeds and soil erosion, leading to Comments Related to Inadequacy of continued development and decreased plant and insect (pollinator) Existing Regulatory Mechanisms implementation of conservation biodiversity. Comment 18—Existing regulatory measures and a Conservation Agreement Our Response—We acknowledge the mechanisms, including the Energy to protect and enhance P. grahamii and presence of exotic weeds within Regulatory Act of 2005, are available to its habitat. occupied Penstemon grahamii habitat, protect Penstemon grahamii from including Bromus tectorum (cheatgrass) mineral development as well as other Comments Related to Other Threat and Halogeton glomeratus (halogeton). land use activities. Factors Habitat disturbances associated with Our Response—We acknowledge that Comment 22—Information was future energy development activities regulatory mechanisms and policies provided regarding evaluations and could exacerbate the situation. We exist to incorporate conservation conservation measures applied to encourage the development and

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implementation of conservation efforts difficult, if not impossible, if energy Comment 35—This species may be to minimize the invasion of exotic weed developments were to impact any of the valuable for a cure to cancer or some species. known populations. other disease. Comment 27—The notice fails to Our Response—Our finding has Our Response—Many plant species provide any scientific evidence that evaluated the potential threats of energy have provided important advances in disease and predation are threats to the development to Penstemon grahamii. medicine. However, our determination species. Comment 32—Listing under the Act regarding whether or not this species Our Response—We have identified results in important protections for warrants listing under the Act must be that grazing may affect certain listed species threatened with based on our assessment of the threats populations of Penstemon grahamii (see development. Unlisted species may to the species, as they are known at the discussion in Factor A in the Factors receive some consideration, but no real time of the decision. Affecting the Species section), but we Comment 36—Current and historic protection in the face of pressure to determined that grazing is not a threat population trend data do not show any develop energy resources. to the species as a whole. Therefore, we decline in the population of Penstemon determined that disease and predation Our Response—Our decision grahamii. do not constitute threats to the regarding Penstemon grahamii is based Our Response—We evaluated continued existence of P. grahamii. on the best available scientific and available population status and trend Comment 28—The species responds commercial data, as required by the Act. information for the species in this to cultivation and proliferates in Our determination regarding whether or finding. habitats other than its natural habitat not this species warrants listing under Comment 37—Penstemon grahamii and, therefore, is capable of being the Act must be based on our habitat is not dependent on oil-shale as cultivated for use in reclamation and assessment of the threats to the species represented. The association with oil- revegetation. at the time of the decision. We shale may be coincidental, and there is Our Response—It is true that the evaluated the threat of energy a substantial likelihood that the species’ species has been cultivated as a garden development, and the effectiveness of distribution is more widespread than plant, and is available for sale in regulatory mechanisms in this finding. presented in the proposed rule. catalogs and on the Internet. Comment 33—A few comments Our Response—We cite several Propagation in the wild may be expressed concern about Penstemon sources that indicate Penstemon explored at a future date, but on an grahamii’s low population numbers and grahamii is associated with oil-shale experimental basis. We do not have low and declining seed set numbers, as outcrops. We are not aware of any data information at this time to conclude that a result of substantial herbivory and indicating that the species is more populations propagated in the wild will livestock trampling. The Nature widely distributed than as we described be viable in the long-term. Until this Conservancy’s eco-regional assessments in the proposed rule and this document. information is available, we would not confirm that P. grahamii, with very low Comment 38—Oil and gas operations rely on restoration or revegetation of natural population numbers and are typically able to avoid individual this species from a cultivated source. restricted distribution, is at risk. plants. Our Response—Information Our Response—Our finding has Comments Related to the Biology of the evaluated the threat of energy Species pertaining to the status, life history, and distribution of Penstemon grahamii has development to Penstemon grahamii. Comment 29—Green River outcrops been reviewed and incorporated in our We encourage development and support a number of rare species of analysis. We have noted the presence of implementation of conservation efforts special concern. The edaphic features of small population sizes at specific to avoid impacts to P. grahamii and its Green River outcrops are natural locations, and the potential for threats to habitat. Comment 39—There is no clear laboratories of evolution and endemism, have negative impacts if they occur. The evidence that the species’ environment and should be preserved. referenced study sites are small, and do is as fragmented as is implied by the Our Response—We concur that the not provide sufficient information on delineation of the units. Green River outcrops have significant threats to conclude that Penstemon Our Response—Our decision ecological and evolutionary values. grahamii warrants listing. Although regarding Penstemon grahamii is based However, our evaluation of threats additional studies may be desirable, we on the best available scientific and under the Act’s criteria is restricted to have made our decision based on the commercial data, as required by the Act. Penstemon grahamii. This final rule best available scientific and commercial We have described the species’ known does not evaluate other species data, as required by the Act. associated with the Green River distribution and provided citations for formation. Comment 34—The extinction of this information in our finding. Comment 30—The limited Penstemon grahamii would Comment 40—There are areas in distribution and highly specific habitat undoubtedly affect the only specialist Uintah County that have shown no requirements of this species make it a wasp, Pseudomasaris vespoides, which previous signs of this plant. However valuable component of the Utah flora feeds its offspring exclusively on when the ground has been disturbed, and highly vulnerable to disturbance. Penstemon pollen. This wasp should be followed by a rainfall, the plant has Our Response—We concur that this the subject of further study. flourished. Listing this plant to prevent species is a valuable component of the Our Response—Our evaluation is disturbance in the area, seems to defeat Utah flora. We considered the habitat restricted to Penstemon grahamii, which the natural course of growth, which requirements and threats to this species we have determined does not warrant includes ground disturbance and water. in our finding, and determined that the listing under the Act. The wasp is a Our Response—To our knowledge the level of threats to Penstemon grahamii specialist on most species of Penstemon. potential for land disturbance to were insufficient to warrant listing. Other Penstemon species occur within facilitate Penstemon grahamii Comment 31—Penstemon grahamii the range of P. grahamii and are conservation has not been studied. habitat requirements make restoration/ apparently supporting Pseudomasaris However, we have no documentation of reclamation of the species extremely vespoides populations. this species responding favorably to

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disturbance as described above. Our Response—Our analysis of the as a BLM special status species. In Observations of biologists studying this best available scientific and commercial addition, we are partnering with Federal species have not shown any such data determined that listing Penstemon and State agencies to develop and response to surface disturbance, and we grahamii is not warranted at this time. implement a Conservation Agreement provide a detailed description of the Our analyses and conclusions are for P. grahamii. This Conservation species’ habitat requirements in the described in detail in the Summary of Agreement is not the basis for this Background section of this document. Factors Affecting the Species section. withdrawal. Comment 41—Penstemon grahamii Comment 46—The U.S. House of Comment 49—If the plant is listed as must be considered extremely rare Representatives has passed House Bill threatened, the Service should adopt a whether considered at the global, 3824, which will amend the Act and special rule under section 4(d) of the national, State, or county level. repeal critical habitat requirements. The Act that would provide that any energy Our Response—Rarity in and of itself Service should delay any listing development projects undertaken in does not automatically lead to listing. decisions until a final determination is accordance with BLM-mandated terms Our determination of whether or not made on this legislation. and conditions would not constitute a listing this species under the Act is Our Response—The Act requires that violation of any of the Act’s plant- warranted must be based on our we finalize proposed listings within 12 related prohibitions. assessment of the threats to the species, months of publication. In this case, we Our Response—Our analysis of the as they are known at the time of the also are responding to a court-approved best available scientific and commercial decision. settlement agreement to complete a data determines that Penstemon listing determination by December 8, grahamii is not warranted for listing Comments Related to General Listing 2006. Therefore, we are unable to under the Act. Issues Under the Act postpone completion of this listing Comment 50—The proposed rule pays Comment 42—The various Federal decision. little attention to the best commercial Register notices are deficient in that Comment 47—Listing Penstemon data which, if considered, would they do not identify, other than by grahamii now could protect against the provide both an estimate of the author, name, and year, the references most damaging projects in its habitat, magnitude of the potential threats, and on which they rely. The Administrative and allow for recovery. the adverse economic impact of listing Procedures Act and other authorities Our Response—Our decision Penstemon grahamii. require a reasonable opportunity to regarding Penstemon grahamii is a Our Response—This final rule comment on proposed rules. The listing, not a recovery decision. Our includes our analysis of the magnitude publications and page numbers at which determination of whether or not this of potential threats to this species, and the references appear could easily have species warrants listing under the Act we have determined that these threats been included in one of the notices. must be based on our assessment of the are not sufficient to warrant listing the Our Response—We have included threats to the species, as they are known species under the Act at this time. The page numbers with citations in this at the time of the decision, not the Act does not include economic notice, and the list of references and the potential for recovery under the Act. considerations as a factor in listing references themselves are available for Comment 48—If listing is denied, the decisions. inspection at our Utah Field Office (see little extra attention that Penstemon Comment 51—Listing under the Act ADDRESSES section). grahamii has received based on its ensures benign neglect of a species; it Comment 43—Several commenters candidate status will disappear. does nothing to proactively ensure supported the proposal to list Our Response—Candidate species are proliferation of a species. Penstemon grahamii and designate plants and animals for which the Our Response—Our determination of critical habitat, based on the species’ Service has sufficient information on whether or not this species warrants status and the threats analysis presented their biological status and threats to listing under the Act must be based on in the proposed rule. propose them as endangered or our assessment of the threats to the Our Response—We have reevaluated threatened under the Act, but for which species, as they are known at the time the best available scientific and a proposed listing regulation is of the decision, not whether listing commercial data, based on information precluded by other higher priority would ensure the species’ recovery. received during the public comment listing activities. Candidate species Comment 52—Costs to the Nation’s period, and have determined that the receive no statutory protection under economy and energy security can be threats to Penstemon grahamii the Act. The BLM has designated avoided by withdrawal of the proposed described in the proposed rule are not Penstemon grahamii as a ‘‘special status rule, as warranted by the scientific and sufficient to warrant listing under the species’’ and as such will provide strong commercial evidence. Act at this time. Our analysis is consideration for the species in its land Our Response—Our determination as presented in the Summary of Factors use planning and will implement to whether or not this species warrants Affecting the Species section. measures to conserve the species and listing under the Act must be based on Comment 44—A commenter felt that protect its habitat. The BLM has made our assessment of the threats to the listing of this species is not warranted. an explicit commitment to conserve this species, as they are known at the time Our Response—We have considered species into the future, regardless of any of the decision. The Act provides for all factors potentially affecting energy or other development action evaluating economic considerations Penstemon grahamii in our decision and within the species range (BLM 2001, when designating critical habitat, but determined that the listing is not 2006a p. 1–2). We encourage the not when making listing determinations. warranted. We have made our decision formation of partnerships to conserve Comment 53—A commenter based on the best available scientific these species because they are, by disagreed with the statement on page and commercial data, as required by the definition, species that warrant future 3173 that the action is not a significant Act. protection under the Act. Our decision energy action. Comment 45—Penstemon grahamii not to list Penstemon grahamii removes Our Response—Our analysis of the meets all five requirements to be listed the species from candidate status. best available scientific and commercial as a threatened species. However, P. grahamii retains its status data indicates that listing Penstemon

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grahamii is not warranted at this time. Special Status Species, including P. because of tar-sands development Therefore, it was not necessary to grahamii. potential could be offered in any further evaluate significant energy Comment 59—The Act provides no upcoming sale. effects, or prepare an economic analysis authority to protect this plant on State Our Response—Our analysis assumes for the designation of critical habitat. or private lands. Therefore, it is that that leasing will occur in suitable tar- Comment 54—It appears that no much more important to protect them sands areas and other areas in the Uinta attempt is being made to designate or on Federal lands. Basin. Leasing does not necessarily restore all original habitats once Our Response—Existing regulatory mean that an area will be developed for occupied by this species. mechanisms were evaluated for our oil and gas. We have addressed the Our Response—The Act does not finding. We encourage Federal land potential impacts of energy require restoration of all historic habitat management agencies to continue development to Penstemon grahamii in for a listed species, nor does it require conservation efforts for Penstemon our finding, and determined that those designation of all historic range as grahamii and its habitat. In addition we impacts now and in the foreseeable critical habitat. By determining that this will work with both the State of Utah future do not rise to the level that would species does not warrant listing we and private landowners to encourage warrant listing of the species. indicate that it is not in danger of voluntary measures to conserve viable Comment 63—In the Castle Peak becoming extinct throughout all or a populations of the species and its Environmental Impact Statement, the significant portion of its range, or likely habitat on their properties. BLM was quite frank about not being Comment 60—BLM has recently to become so in the foreseeable future. able to impinge on valid, existing lease initiated survey and life history studies Comment 55—A recovery plan is not rights, and openly refused to require No for Penstemon grahamii. Life history a part of the current proposal. Surface Occupancy within the Pariette and survey data are out of date and may Our Response—Recovery Plans are Wetlands Area of Critical not accurately portray the species’ only completed for listed species under Environmental Concern (ACEC), even distribution and abundance. Lack of the Act. This current finding has though (1) that was one of the determined that listing Penstemon information may affect the Service’s decisions regarding critical habitat expectations set forth in the biological grahamii under the Act is not opinion, and (2) Uinta Basin hookless warranted. designation. Our Response—We agree that cactus’ (Sclerocactus glaucus) listed Comments Related to Agency additional population status, status should have allowed the agency Management of the Species distribution, and life history to place additional constraints on those leases. The BLM White River Field Comment 56—The Energy Policy Act information would be useful to Office also has permitted pipelines strengthens the BLM and Service determine the status of the species and through ACECs designated for the capability to protect this species. identification of critical habitat. Our Response—The 2005 Energy However, as required by the Act, we Dudley Bluffs plants, in what appears to Policy Act resulted in increased staffing have used the best scientific and be direct contravention of the White and funding levels for pilot project commercial information available when River RMP. offices, including the Vernal BLM Field making the determination on whether to Our Response—This finding pertains Office. We strongly encourage BLM to list Penstemon grahamii. to Penstemon grahamii, not other plant utilize these available resources to Comment 61—All action alternatives species in the area. Our analysis of the ensure long-term, successful in the draft BLM Vernal RMP would best available scientific and commercial conservation efforts for Penstemon lead to Penstemon grahamii being more data indicates that P. grahamii is not grahamii and other listed and sensitive imperiled. warranted for listing under the Act. We species during energy project planning Our Response—The BLM has have considered existing regulatory and implementation. provided its commitment to continue mechanisms and management activities Comment 57—The BLM has done a implementation of effective in this finding. The Service encourages poor job of protecting plant conservation measures through the RMP the successful development and communities from rapid to ensure long-term conservation of P. implementation of conservation industrialization and lawless ORV use. grahamii. Our analysis of the best measures for P. grahamii to maintain the Our Response—We considered available scientific and commercial data species’ status in the long-term. potential threats, such as increased reveals that P. grahamii is not warranted Comment 64—The BLM has provided energy development and ORV use, in for listing under the Act. We have very little in the way of conservation our finding, but we were unable to evaluated existing regulatory measures for Penstemon grahamii, document threats from these activities mechanisms in our finding. All action despite its candidate status. that would warrant listing Penstemon alternatives within the BLM’s draft RMP Our Response—We have considered grahamii. commit the BLM to protect the existing regulatory mechanisms and Comment 58—There is no assurance populations and habitat of Special management activities in this finding, at this point that the BLM, through the Status Species, including P. grahamii. and determined that the impacts to Vernal Resource Management Plan We have identified specific protective Penstemon grahamii populations and (RMP), will provide adequate protection measures for the protection of P. habitat are not sufficient to warrant for Penstemon grahamii. grahamii which BLM will include in the listing under the Act. This species has Our Response—Our determination of final RMP and as stipulations in all been a listing candidate for decades, and whether or not this species warrants subsequent mineral leases. (See we have no evidence to indicate that listing under the Act must be based on discussion under listing Factors A and current BLM management is resulting in our assessment of the threats to the D below.) serious impacts to populations of this species, as they are known at the time Comment 62—The BLM Vernal Field species. of the decision. We understand that all Office has continued to offer oil and gas Comments Related to Critical Habitat action alternatives within the BLM’s lease parcels even though it is in the draft Vernal RMP commit the BLM to midst of a Plan revision, and the Service Comment 65—There were numerous protect the populations and habitat of must consider that the areas unleased comments regarding the importance,

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extent, and boundary lines regarding the 7; Bunger et al. 2004 p. 1; Dyni 2003, population at Raven Ridge. The one proposed critical habitat designation. pp. 241–245; Lonnie 2005, pp. 1–3). P. Utah RD&D application still under Our Response—We considered all grahamii only grows directly on review is located about 8 km (5 mi) west factors potentially affecting Penstemon weathered surface exposures of the oil- and 13 km (8 mi) north of the nearest grahamii in our decision and we have shale bearing strata in the Parachute P. grahamii occurrences in habitat not determined that the listing is not member and closely associated strata, suitable for the species (BLM 2006a, pp. warranted. Therefore, we are making the species vulnerable to 12–13, 15, 18–19, 34). withdrawing our proposed critical impacts if that oil-shale strata is Any future oil-shale development habitat designation. exploited in the future (Bartis 2005, pp. within the Uinta Basin nearest the range 35–37; Cashion 1967, p. 31, Fig. 8; of Penstemon grahamii is expected to be Summary of Factors Affecting the Johnson et al. 2004b. pp. 3–5; Service associated with the thickest deposits of Species 2005, p. 21; Shultz and Mutz 1979a, p. oil-shale, which occur about 8 km (5 mi) Section 4 of the Act and regulations 42; Neese and Smith 1982a, pp. 64–66). from the nearest occurrence of P. (50 CFR part 424) promulgated to One hundred five of 109 (96 percent) grahamii (BLM 2006a, pp. 12–13). These implement the listing provisions of the Penstemon grahamii occurrences are in deposits occur in the vicinity of the Act set forth the procedures for adding the Parachute Creek member of the aforementioned Utah RD&D proposal. species to Federal lists. We analyzed the Green River formation; the remaining 4 We do not have information to indicate threats applicable to the species in the sites are in oil-shale strata of the that oil-shale development, if it occurs present and foreseeable future to Evacuation Creek member of the Green at commercial levels, will overlap determine whether the species as a River formation (Service 2005, p. 21; known P. grahamii occurrences. whole meets the definition of Shultz and Mutz 1979a, p. 39; Neese Oil-shale and tar-sands development endangered or threatened due to one or and Smith 1982a, p. 64). Oil-shale beds has failed to materialize due largely to more of the five factors described in are most numerous and important in the technological problems and unfavorable section 4(a)(1). The five factors Parachute Member of the Green River economics. The first interest in oil-shale considered and their application to P. formation (Cashion 1967, p. 13), but the extraction occurred in the latter years of grahamii are as follows: underlying Evacuation Creek member and immediately following World War I. also contains a few beds of oil-shale However, limited accessibility and low A. The Present or Threatened (Cashion 1967, p. 17). The 105 economic viability resulted in declining Destruction, Modification, or occurrences in the Parachute Creek interest. More recently in the 1970– Curtailment of Its Habitat or Range member harbor an estimated 6,100 1980s, BLM made oil-shale resources on Energy Resources individuals or 98 percent of the species’ public lands available through the Oil estimated population of 6,200 (Shultz Shale Prototype Program, which was Our proposed rule concluded that and Mutz 1979a, pp. 38–42; Neese and designed to allow companies to develop recent Federal policy direction, Smith 1982a, pp. 63–66). and refine the technology for extracting technological advances, world oil There are no oil-shale or tar-sand oil from oil-shale. Since then, during the demand, and economics have renewed development projects currently in mid-1980s and 1990s, interest in oil- the desirability to invest in renewed operation or proposed within the known shale development lagged because of energy development in Utah and occupied habitat of Penstemon declining petroleum prices (Bartis et al. Colorado. However, based on comments grahamii, or anywhere else in the 2005, p. 1; Lonnie 2005, pp. 1–3). received on the proposed rule, it United States (BLM 2006a, p. 13). The Significant economic questions appears that the development of oil- BLM projects that the oil-shale industry remain concerning the development of shale and tar-sands resources in will focus its earliest commercial the Green River formation oil-shale and Penstemon grahamii habitat is not likely production efforts in the Piceance Basin, tar-sands (Bartis et al. 2005, pp. 15, 53; to occur, if it occurs at all, until at least Colorado, about 48.3 km (30 mi) from BLM 2006a, pp. 7, 15–19, 31, 34–36). 20 years into the future. the nearest known P. grahamii The cost associated with an enormous Penstemon grahamii has been listed occurrence (BLM, 2006, pp. 14, 36). The and essentially new industry using new as a candidate species since 1980, in Piceance Basin contains larger oil-shale and innovative technologies is likely to part due to the potential threat of deposits than the Uinta Basin in Utah. be great. Economic success of oil-shale increased energy development (Service Deposits are more than 305 m (1,000 ft) and tar-sands derived petroleum will 2004). The habitat of P. grahamii is a thick in parts of the Piceance Basin and depend on continuing and stable series of knolls and slopes of raw oil- continuous across 311 km2 (120 mi2) petroleum prices at a level of $70 to $95 shale derived from the Green River (BLM, 2006, p. 14). per barrel. Due to past fluctuation of geologic formation (Shultz and Mutz Initial industry interest appears to petroleum prices, private industry has 1979a, pp. 38–42; Shultz and Mutz support BLM projections. In 2005, the exhibited a reluctance to proceed with 1979b, pp. 25–38; Neese and Smith BLM received 20 proposals and research, development, and subsequent 1982a, pp. 63–66; Neese and Smith applications for oil-shale Research, commercial production of oil-shale. 1982b, pp. 115–140; Borland 1987, p. 1; Development, and Demonstration This situation will likely continue Franklin 1993, Appendix D; Franklin (RD&D) leases on Federal lands in unless the petroleum industry is 1995, Appendix B; Colorado NHP 2005, Colorado and Utah. None of these RD&D convinced that petroleum prices will pp. 1–20; Utah NHP 2005, pp. 1–124; lease applications are within the remain high well into the future (Bartis Service 2005, pp. 1–13; Decker et al. occupied habitat of Penstemon grahamii et al. 2005, pp. 59–61; Bunger et al. 2006, pp. 3–10). Oil-shale resources (BLM 2006a, pp. 6, 12–13). The nearest 2004, pp. 7–9). associated with the Green River is about 3.2 km (2 mi) southeast of Various technologies for oil-shale formation underlie approximately known occurrences (on Green River extraction and processing into synthetic 41,440 km2 (16,000 mi2) and represent shale barrens). Of the 20 RD&D lease petroleum have been explored. The the largest known concentration of oil- application proposals, the BLM selected traditional approach is mining the oil- shale in the world with potential 6 for further consideration—5 are in shale either by surface mining (i.e., recoverable reserves in excess of 1 Colorado in the Piceance Basin about 50 removing the surface non oil-shale trillion barrels (Bartis et al. 2005, pp. 5– km (30 mi) east of the P. grahamii’s bearing material from the underlying

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oil-shale ore body then removing the grahamii from energy development have economically and technologically oil-shale itself for further processing) or been largely avoided to date because feasible. underground mining (i.e., digging a surface disturbance within the species’ Approximately 60 percent of the vertical shaft through the surface non habitat has been minimal. For example, species’ population and 75 percent of oil-shale bearing material to the under the existing development the species’ occupied habitat is on underlying oil-shale ore body, or where situation, only 5 of the known Bureau of Land Management (BLM) possible digging a horizontal shaft into occurrences (4.6 percent) have oil and managed land with the remainder on the oil-shale ore body, then removing gas wells located within them (Service non-Federal lands under State or private the oil-shale by various underground 2005 , p. 17). Thirty-nine active wells ownership (USFWS 2005). These State mining techniques for further are within 1.6 km (1 mi) of P. grahamii and private lands are intermingled processing) (Bartis et al. 2005, pp. 11– occupied habitat, and future oil and gas within a broad mosaic of land 13; BLM 2006a, pp. 14, 32–33). Raw oil- development within P. grahamii habitat ownerships dominated by Federal shale is then retorted by heating to is likely. Of the 109 occurrences of P. (BLM) lands. With this ‘‘checkerboard’’ vaporize the carbon containing kerogen grahamii, 69 (63 percent) are currently spatial pattern of ownerships, large- (shale oil) and then hydrolyzed, by the leased for oil and gas drilling, or are scale development on non-Federal lands adding of hydrogen, to form synthetic within established oil and gas fields that would, at a minimum, require petroleum which then can be refined by have active resource extraction coordination with the BLM. In most traditional methods into hydrocarbon programs. Ninety-six of the species’ 109 cases, development of these lands fuels and other products (Bartis et al. known occurrences (88 percent) are would only be possible via 2006, pp. 13–14). Mining techniques are within active seismic exploration areas consolidation of Federal and non- centuries old and are an effective direct (BLM 2003). Federal lands into economically viable approach to accessing ore bodies The BLM reports that conservation development units (Bunger 2006), including oil-shale. Recent new stipulations for Penstemon grahamii which would require extensive review technologies involve in-situ removal of near well locations have prevented under the National Environmental kerogen directly from oil-shale by adverse impacts to the species’ habitat Policy Act (NEPA) among other Federal drilling wells into the oil-shale ore body and possible loss of P. grahamii laws. Biological studies specific to and heating the underground oil-shale individuals (BLM 2005, pp. 2–29, 2–30, Penstemon grahamii and sympatric ore body and then extracting the 3–94, 4–233; Specht 2005). species are in their beginning phase liquefied kerogen for further processing Conservation measures include moving (Bartis et al. 2005, p. 17; BLM 2005, pp. (Lewinsohn et al. 2005). well pad and pipeline locations to avoid At this time, we have no information 32–33). There have been several direct impacts to the species. The BLM variations of in-situ oil-shale recovery demonstrating population declines, considers these measures to be effective range contraction, or significant habitat proposed and investigated (Bartis et al. protection mechanisms (Specht 2005). 2005, pp. 17–20; BLM 2006a, pp. 32– impacts for P. grahamii because of The BLM, as part of its sensitive species energy development (which includes 33). program outlined in its Administrative Surface mining is potentially the most current traditional oil and gas Manual 6840, will continue to provide damaging process to the environment. exploration, drilling and production, protection to the species and its habitat In-situ oil-shale recovery may be much and potential oil-shale and tar-sand through land use planning and less destructive to the environment. development). Therefore, we conclude There is still great uncertainty as to the implementation of conservations that energy development within the procedures that may be used in future measures for oil and gas development range of P. grahamii is not currently a oil-shale development, including within (BLM 2005, pp. 2–29, 2–30, 3–94, 4– threat to the species, nor is it likely to the range of Penstemon grahamii where 233; BLM 2006a, p. 43). become a significant threat in the there are no current proposals for oil- The BLM has stressed its commitment foreseeable future, such that listing shale development. to develop appropriate regulations for under the Act is warranted. Even if economic and technological the leasing program, and to develop Other Activities conditions favor oil-shale and tar-sand conservation measures for Penstemon development, it would be at least 20 grahamii and other plant species within Grazing may have localized effects on years before any production would future Federal oil-shale and tar-sand Penstemon grahamii, and one begin in or near Penstemon grahamii lease areas in Utah and Colorado (BLM occurrence of the species is believed to occupied habitat, if it occurs in those 2006b). These conservation measures have been eradicated by livestock locations at all. Indications are that are intended to eliminate significant trampling. The Dragon Sheep bed site initial oil-shale development will take potential threats to P. grahamii from oil- first recorded in a 1982 survey (Neese place at existing RD&D sites in the shale and tar-sand development, and and Smith 1982b, p. 137) has not been Piceance Basin of Colorado and will be applied to lease stipulations for relocated in recent years. This is an area immediately south of the White River in oil-shale and tar-sands when and if they of heavy sheep grazing and trampling, the Uinta Basin of Utah (BLM 2006a, pp. are issued (BLM 2000, p. 8). Additional which is thought to have caused the 6, 38–40). None of the sites are within mitigation measures to conserve P. possible extirpation of this occurrence the range of P. grahamii, nor does grahamii also will be developed at the (England 2003). Lewinsohn (2005 pp. 1, suitable habitat exist for the species at operational stage (BLM 2006a, pp. 24– 12–14) reported a general decline in the those sites. At present there are no tar- 27). Because these conservation species at one study area due to sand development projects proposed for measures have not yet been developed, overgrazing. However, no research has the PR springs tar-sand area which we are not basing this withdrawal on been conducted to document effects of underlies portions of P. grahamii’s range their potential implementation. grazing on P. grahamii populations or (BLM 2006a, p. 33). However, we expect development and habitat, and we have no information The entire range of Penstemon implementation of sufficient indicating that grazing impacts threaten grahamii also is underlain with deposits conservation measures to help ensure the continued existence of the species of traditional petroleum resources, long-term protection of the plant if oil- throughout all or a significant portion of primarily natural gas. Impacts to P. shale development becomes its range.

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To date little ORV use has been seeds set, resulting in no reproduction future in habitat for Penstemon observed in the species’ range. Federal (Lewinsohn et al. 2005, p. 17). grahamii. In addition, the BLM has and energy industry personnel are Lewinsohn also reported that all sites significant authority to regulate and increasingly utilizing ORVs in oil and visited in southern Uintah County were manage grazing on lands under its gas field survey and site location either too small or too heavily grazed to jurisdiction (BLM 2005; BLM 2006a, pp. development prior to the establishment conduct suitable pollination studies. 54–56, 60); ORV use (BLM 2005; BLM of oil field road networks (Specht 2005). However, there are no specific studies 2006a, pp. 58, 60); and collection of However, we do not have any on the effects of grazing on this species. plant materials for horticultural and information indicating that ORV use is Based on our analysis of the best other uses (BLM 2006a, pp. 56–58). a threat to Penstemon grahamii or its available scientific and commercial We conclude that BLM has the habitat. information, we conclude that disease necessary regulatory mechanisms in Based on our analysis of the best or predation are not currently threats to place to provide for the conservation of available scientific and commercial Penstemon grahamii, nor are they likely Penstemon grahamii and the protection information, we conclude that the to become significant threats in the of its habitat. present or threatened destruction, foreseeable future, such that listing Based on our analysis of the best modification, or curtailment of under the Act is warranted. available scientific and commercial Penstemon grahamii habitat or range is information, we conclude that the D. The Inadequacy of Existing not currently a threat to the species, nor inadequacy of existing regulatory Regulatory Mechanisms is it likely to become a significant threat mechanisms is not currently a threat to in the foreseeable future, such that No Federal or State laws or Penstemon grahamii, nor is it likely to listing under the Act is warranted. regulations specifically protect become a significant threat in the Penstemon grahamii. The species is not foreseeable future, such that listing B. Overutilization for Commercial, protected by the Convention on under the Act is warranted. Recreational, Scientific, or Educational International Trade in Endangered Purposes Species of Wild Fauna and Flora. Some E. Other Natural or Manmade Factors Penstemon grahamii is a species of populations occur on private lands, Affecting Its Continued Existence horticultural interest. The species is which were given mineral entry patents We note the presence of exotic weeds advertised on the internet and plants during the 1920s specifically because of within occupied Penstemon grahamii and seed are available. In 2004, a oil-shale values. There is no regulatory sites, including Bromus tectorum Penstemon collector approached Red protection for Penstemon grahamii on (cheatgrass) and Halogeton glomeratus Butte Garden (the Utah State botanical non-Federal lands. (halogeton) (England 2003). These garden located at the University of Utah) The majority of Penstemon grahamii invasive exotic species are most inquiring how to obtain seeds of P. populations occur on lands abundant along roads and well site grahamii (Lewinsohn 2004). Several administered by the BLM. The BLM locations (Specht 2004). These species internet sites identify P. grahamii as a administratively recognizes rare and may compete with P. grahamii, thus desirable plant for gardens or potentially imperiled plant species for further degrading habitat quality. horticultural exhibitions. However, we special management consideration However, we have no information to do not have any information indicating through its 6840 Manual for special indicate that exotic weeds threaten the that collection from the wild is status species, which includes P. existence of P. grahamii. occurring or if it is occurring, the level grahamii. Because P. grahamii will be Little is known concerning the of collection or the impact of collection classified as a special status species, species’ pollination biology. The BLM is on wild populations. BLM will continue to provide currently funding pollination biology Based on our analysis of the best conservation protection to the plant studies (Bolander 2005; Lewinsohn et available scientific and commercial (BLM 2006b, pp. 1–2). The BLM, al. 2005, pp. 12–14, 17). Collections and information, we conclude that through existing land management observations of pollinators to the overutilization of Penstemon grahamii regulations, land use planning, and flowers of Penstemon grahamii have for commercial, recreational, scientific, specific lease and use stipulations (BLM been limited over the past two flowering or educational purposes habitat or range 2006a, pp. 43–70), has considerable seasons because of the paucity of is not currently a threat to the species, regulatory authority to manage lands flowering plants. The most consistent nor is it likely to become a significant and resources under its jurisdiction. pollinator of this species is likely to be threat in the foreseeable future, such These include oil and gas leasing the wasp Pseudomasaris vespoides that listing under the Act is warranted. regulatory mechanisms such as: land (Lewinsohn et al. 2005, p. 17). Because use planning guidance; lease sale flowers of P. grahamii appear to be very C. Disease or Predation stipulations; exploration and field scarce, this plant species may be unable Penstemon grahamii is grazed by development analysis and planning to support a viable population of P. wildlife, including rodents, rabbits, guidance for oil and gas fields and vespoides. Successful reproduction by antelope, deer, elk, and insects (Shultz geophysical exploration; an individual P. grahamii may depend on the and Mutz 1979a, pp. 37–42; Neese and oil and gas well review and approval occurrence of other concurrently Smith 1982a, pp. 63–66; England 1979; (Applications for Permit to Drill (APD)) blooming Penstemon species which Specht 2005; Lewinsohn et al. 2005, pp. process; and on-the-ground inspection support and keep abundant populations 2, 12–14, 17). The species also is grazed processes for compliance with lease and of P. vespoides in the area. by livestock, primarily sheep. There are APD stipulations (BLM 2005; BLM Low population numbers and habitat some anecdotal reports of the possible 2006a, pp. 45–53, 60, 67–69). fragmentation pose a threat to rare plant impacts of grazing on P. grahamii. For Oil-shale and tar-sand regulatory species’ genetic potential to adapt to example, recent attempts to establish mechanisms are under development, changing environmental conditions pollination studies and population but will follow a similar environmental (Lienert 2002, pp. 62, 63, 66; Matthies monitoring plots for the species were protection direction (BLM 2006a, p 45). et al. 2004, pp. 481, 486). Three of complicated by overgrazing, which These measures will only be necessary Penstemon grahamii’s 5 population resulted in the loss of flowers before if oil-shale development occurs in the habitat units have 200 or fewer

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individuals. In addition, 8 smaller as threatened or endangered under the Act. Our decision to withdraw the occurrences with populations of 20 or Act. No documented decreases in proposed rule to list Penstemon fewer individuals are isolated, and 10 population numbers or range of grahamii also removes the species from km (6 mi) or more from the core area of distribution have been documented for candidate status under the Act. the 5 P. grahamii population units. P. grahamii. Potential threats to the In making this finding, we recognize These smaller occurrences of P. species’ habitat from energy there are potential future threats to the grahamii may not be at levels that development, including traditional oil species from energy development, would ensure the species’ long-term and gas exploration, field development, particularly if oil-shale and tar-sands demographic stability and genetic and production, have been adequately development is commercialized in the viability. The effects of habitat addressed and mitigated by BLM Uinta Basin. We further conclude that degradation and fragmentation caused policies, land use planning, and on-the- additional population inventory, habitat by human activities in concert with the ground protective measures. Oil-shale and population monitoring, and life effects of deleterious natural development has the potential to cause history studies are needed for P. phenomena, such as drought, may lead increased habitat loss and fragmentation grahamii. If realization of any potential to the extirpations of small, localized in areas of occupied P. grahamii habitat. threats occurs, we will reexamine the populations. At present there are no However, there is great uncertainty over status of P. grahamii. studies or information on these threats the technological and economic References Cited relative to P. grahamii, and we have no viability of commercial production, and, information to indicate that low therefore, over timing and eventual A complete list of all references cited population levels and habitat location of oil-shale extraction. Based is available at the Utah Field Office, fragmentation have range-wide effects on the best available information, we U.S. Fish and Wildlife Service (see on the species. conclude that there may never be a ADDRESSES above). Based on our analysis of the best significant impact to the species from Author available scientific and commercial oil-shale or tar-sand energy information, we conclude that there are development, and if there is it will not The primary author of this document no other natural or manmade factors occur for at least the next 20 years. No is John L. England of the Utah Fish and affecting the continued existence of significant habitat threats from livestock Wildlife Service Field Office (see Penstemon grahamii such that listing grazing or ORV use are presently ADDRESSES above). under the Act is warranted. affecting the species. Overutilization for Authority horticultural use is not known to be Listing Determination negatively impacting populations. The authority for this action is section 4(b)(6)(B)(ii) of the Endangered Species We have carefully assessed the best Because we have determined there are Act of 1973, as amended (16 U.S.C. 1531 scientific and commercial information no significant threats that warrant et seq.). available regarding threats to Penstemon listing this species under the Act, we grahamii. After a review of additional withdraw our proposed listing rule and Dated: December 6, 2006. information provided during the public proposed critical habitat designation for Marshall Jones, comment period, we have determined Penstemon grahamii, as published in Acting Director, U.S. Fish and Wildlife that existing and potential threats to P. the Federal Register of January 19, 2006 Service. grahamii and its habitat are not (71 FR 3158). We are taking this action [FR Doc. E6–21260 Filed 12–18–06; 8:45 am] sufficient to warrant listing the species under section 4(b)(6)(A)(i)(IV) of the BILLING CODE 4310–55–P

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