Vol. 77 Monday, No. 156 August 13, 2012

Part III

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Ipomopsis polyantha (Pagosa skyrocket), Penstemon debilis (Parachute beardtongue), and Phacelia submutica (DeBeque phacelia); Final Rule

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DEPARTMENT OF THE INTERIOR (TDD), call the Federal Information and are completed the final Relay Service (FIRS) at 800–877–8339. environmental assessment concurrently Fish and Wildlife Service SUPPLEMENTARY INFORMATION: with this final determination. Peer reviewers support our methods. 50 CFR Part 17 Executive Summary We obtained opinions from four Why we need to publish a rule and knowledgeable individuals with [Docket No. FWS–R6–ES–2011–0040: the basis for our action. Under the Act, scientific expertise to review our 4500030114] any species that is determined to be technical assumptions, analysis, RIN 1018–AX75 threatened or endangered shall, to the adherence to regulations, and whether maximum extent prudent and or not we had used the best available Endangered and Threatened Wildlife determinable, have habitat designated information. These peer reviewers and Plants; Designation of Critical that is considered to be critical habitat. generally concurred with our methods Habitat for Ipomopsis polyantha We listed these three plant species on and conclusions and provided (Pagosa skyrocket), Penstemon debilis July 27, 2011 (76 FR 45054). At the same additional information, clarifications, (Parachute beardtongue), and Phacelia time, we proposed to designate critical and suggestions to improve this final submutica (DeBeque phacelia) habitat (76 FR 45078). Section 4(b)(2) of rule. the Act states that the Secretary shall Background AGENCY: Fish and Wildlife Service, designate critical habitat on the basis of Interior. the best available scientific data after It is our intent to discuss in this final ACTION: Final rule. taking into consideration the economic rule only those topics directly relevant impact, national security impact, and to the development and designation of SUMMARY: We, the U.S. Fish and any other relevant impact of specifying critical habitat for Ipomopsis polyantha, Wildlife Service, are designating critical any particular area as critical habitat. Penstemon debilis, and Phacelia habitat for the endangered Ipomopsis The critical habitat areas we are submutica under the Act (16 U.S.C. polyantha (Pagosa skyrocket) and the designating in this rule constitute our 1531 et seq.). For more information on threatened Penstemon debilis current best assessment of the areas that the biology and ecology of I. polyantha, (Parachute beardtongue) and Phacelia meet the definition of critical habitat for P. debilis, and P. submutica, refer to the submutica (DeBeque phacelia) under Ipomopsis polyantha, Penstemon final listing rule published in the the Endangered Species Act (Act). The debilis, and Phacelia submutica. Here Federal Register on July 27, 2011 (76 FR purpose of this regulation is to conserve we are designating: 45054). For information on I. polyantha, these three plant species and their • Approximately 9,641 acres (ac) P. debilis, and P. submutica critical habitats under the Act. (3,902 hectares (ha)), in 4 units, are habitat, refer to the proposed rule to DATES: This rule becomes effective on being designated as critical habitat for designate critical habitat for I. September 12, 2012. Ipomopsis polyantha. polyantha, P. debilis, and P. submutica • Approximately 15,510 ac (6,217 ha), ADDRESSES: This final rule, and the published in the Federal Register on in 4 units, are being designated as associated final economic analysis and July 27, 2011 (76 FR 45078). Information critical habitat for Penstemon debilis. final environmental assessment, are on the associated DEA and draft • Approximately 25,484 ac (10,313 environmental assessment for the available on the Internet at http:// ha), in 9 units, are being designated as www.regulations.gov. The coordinates proposed rule was published in the critical habitat for Phacelia submutica. Federal Register on March 27, 2012 (77 or plot points or both from which the • In total, approximately 50,635 ac FR 18157). maps are generated are included in the (20,432 ha), in 17 units, are being administrative record for this critical designated as critical habitat for the Previous Federal Actions habitat designation and are available at three species. The final rule listing Ipomopsis http://www.fws.gov/mountain-prairie/ We have prepared an economic polyantha as an endangered species, species/plants/3ColoradoPlants/ analysis of the designation of critical and listing Penstemon debilis and index.html, http://www.regulations.gov habitat. In order to consider economic Phacelia submutica as threatened at Docket No. FWS–R6–ES–2011–0040, impacts, we have prepared an analysis species, was published on July 27, 2011 and at the Western Colorado Ecological of the economic impacts of the critical (76 FR 45054). Our proposal for Services Office (see FOR FURTHER habitat designations and related factors. designating critical habitat for I. INFORMATION CONTACT). Comments and We announced the availability of the polyantha, P. debilis, and P. submutica materials received, as well as supporting draft economic analysis (DEA) on March was published on the same date (76 FR documentation used in preparing this 27, 2012, allowing the public to provide 45078). Our notice of availability for the final rule, are available for public comments on our analysis. We have DEA and draft environmental inspection, by appointment, during incorporated the comments and are assessment was published on March 27, normal business hours, at the U.S. Fish completed the final economic analysis 2012 (77 FR 18157). For other previous and Wildlife Service, Western Colorado (FEA) concurrently with this final Federal actions, please see our final Ecological Services Office, 764 Horizon determination. listing rule (76 FR 45054). Drive, Suite B, Grand Junction, CO We have prepared an environmental 81506–3946; telephone 970–243–2778; assessment of the designation of critical Summary of Comments and facsimile 970–245–6933. habitat. Based on a court ruling, we Recommendations FOR FURTHER INFORMATION CONTACT: must undertake National Environmental We requested written comments from Patty Gelatt, Field Supervisor, U.S. Fish Policy Act (NEPA) analysis in the Tenth the public on the proposed designation and Wildlife Service, Western Colorado Circuit when we designate critical of critical habitat for Ipomopsis Ecological Services Office, 764 Horizon habitat. We announced the availability polyantha, Penstemon debilis, and Drive, Suite B, Grand Junction, CO of the draft environmental assessment Phacelia submutica during two 81506–3946; telephone 970–243–2778; on March 27, 2012, allowing the public comment periods. The first comment facsimile 970–245–6933. If you use a to provide comments on our assessment. period associated with the publication telecommunications device for the deaf We have incorporated the comments of the proposed critical habitat rule (76

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FR 45078) opened on July 27, 2011, and (1) Comments on the pollinators of (2) Comments on the genetic diversity closed on September 26, 2011. We also Ipomopsis polyantha: One peer of Penstemon debilis: One peer reviewer requested comments on the proposed reviewer questioned some of the provided information relating to genetic critical habitat designation and pollinator information presented for I. diversity, the potential clonal nature, associated DEA during a comment polyantha. This reviewer questioned and connectivity between sites for P. period that opened March 27, 2012, and whether the self-pollination we debilis. Given the underground stems of closed on April 26, 2012 (77 FR 18157). discussed was with or without the P. debilis, the reviewer concluded that We did not receive any requests for a assistance of a pollinator. The reviewer the actual population size has been public hearing. We also contacted also questioned if our pollinator greatly overestimated. The reviewer appropriate Federal, State, and local information for I. polyantha was based provided information relating to agencies; scientific organizations; and on visitor information versus pollinator quantitative, not neutral (genetic other interested parties and invited information, that is, if the insects listed markers that are not directly linked to them to comment on the proposed rule were just visiting the plants, or if they a species fitness), genetic diversity, with and DEA during these comment periods. were actually pollinating the flowers. In several citations in reference to the During the first comment period, we addition, the reviewer wondered if genetic work that has been done for P. received six comment letters directly night-time pollinator experiments, debilis. Another commenter stated that addressing the proposed critical habitat collections, or observations were the genetic diversity work was designation. Four comment letters were performed, since some other Ipomopsis inadequate, not reproducible, and the received between the two comment species are primarily pollinated by conclusions about inbreeding periods. During the second comment night-flying hawkmoths. depression were erroneous or in conflict period, we received nine comment Our Response: We based our with the reproductive biology study on letters addressing the proposed critical conclusions on Ipomopsis polyantha the species. habitat designation, the DEA, or the pollination on a study done by Collins Our Response: An individual stem or draft environmental assessment. All (1995). This breeding system study, plant that is part of a clonal colony or substantive information provided looking at Ipomopsis polyantha’s ability genet (group of genetically identical during both comment periods has either to set fruit with and without a individuals) is called a ramet. A been incorporated directly into this final pollinator, examined the ways in which common example of a ramet is the determination or are addressed below. pollination was most successful (Collins aspen tree (Populus tremuloides), which Comments received were grouped into 1995, pp. 35–46). Given that open- appears as an individual tree, but is 23 general categories specifically pollinated and cross-pollinated genetically identical to its neighbor. Our relating to the proposed critical habitat individuals produced far more fruit than population estimates for Penstemon designation for Ipomopsis polyantha, self-pollinated individuals without debilis correspond to ramets, so are Penstemon debilis, and Phacelia pollinators, we continue to conclude likely an overestimate of the number of submutica, and are addressed in the that pollinators are necessary for unique individuals. Although we know following summary and incorporated successful reproduction of I. polyantha. P. debilis’ neutral genetic diversity is into the final rule as appropriate. We We have changed the text regarding the low when compared to other species of received several comments on our final physical and biological features for the plants with similar life-history traits listing determination (76 FR 45054; July plant in an effort to better capture this (Wolfe 2010), we do not know how 27, 2011), but are not addressing those many of the ramets that have been comments because they do not apply to information. this determination. The Ipomopsis polyantha pollinator counted as individuals are part of the studies occurred only from dawn to same genet. Further research is needed Peer Review dusk (Collins 1995, p. 30); therefore, we to answer this question. Therefore, our In accordance with our peer review are unsure about night-time visitors. estimate of the known individuals of P. policy published on July 1, 1994 (59 FR However, we have information about debilis is likely an overestimate (as 34270), we solicited expert opinions crepuscular (low-light) visitors, which discussed under the physical and from three knowledgeable individuals includes hawkmoth species. Several biological feature of ‘‘disturbance’’ for with scientific expertise that included butterfly, hawkmoth, fly, and other the species and under Criteria Used To familiarity with the species, the insect species were observed as visitors Identify Critical Habitat below), and geographic region in which the species to I. polyantha plants, but not as the could be a large overestimate (Tepedino occurs, and the principles of primary pollinators (Collins 1995, pp. in press 2012, pp. 1–10). Please see conservation biology. We received 48–50). Only 9 of the more than 300 comment 4 below for further responses from four peer reviewers flower visits were from a hawkmoth information on the number and size of because one of the reviewers requested (Hyles lineata) (Collins 1995, pp. 48– critical habitat units (CHUs) relating to the assistance of two other reviewers. 50). Further research would likely refine this topic. We reviewed all comments received what we know about the primary In response to the peer reviewers’ from the peer reviewers regarding pollinators and our information on comments on genetic variation, we critical habitat for Ipomopsis polyantha, night-time pollination; however, based recognize that the genetic information Penstemon debilis, and Phacelia on the best available information and we have for Penstemon debilis (Wolfe submutica. The peer reviewers generally the detailed information from the 2010, pp. 1–7) is based on neutral concurred with our methods and Collins (1995) study, we conclude that genetic markers (genetic markers not conclusions and provided minor our information does distinguish specifically linked to a species’ fitness) additional information, clarifications, between pollinators and visitors. If there and does not specifically address the and suggestions to improve the final are critical night-time pollinators, we species’ ability to persist into the future. critical habitat rule. Peer reviewer have no information on them. As such, However, the genetic data do show that comments are addressed in the we did not adjust our criteria, physical the species suffers from some level of following summary and are and biological features, or primary lowered genetic diversity and are the incorporated into the final rule as constituent elements (PCEs) to address best available information we have at appropriate. night-time pollination. this time.

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Our genetic information for occurring based on small population establishment of new populations of the Penstemon debilis comes from the work sizes, the inbreeding depression (albeit plant, and this is why we are of Dr. Andrea Wolfe, one of the foremost weak) seen in the McMullen (1998) designating unoccupied units. We will experts on Penstemon genetics in the study, and the low genetic diversity and better understand how many country (see http://www.biosci.ohio- the inbreeding coefficients from the populations are needed (redundancy), state.edu/∼awolfe/ for background on Wolfe study (Wolfe 2010, p. 3). The low and exactly where these new the techniques she uses to assess genetic population numbers and low genetic populations will need to be established, diversity). We recognize that we do not diversity of P. debilis are well in the future, when we have completed as yet have a peer-reviewed manuscript substantiated by the best available the recovery planning process. of her work. However, the Act requires information, and there are no data to Furthermore, we are not precluded from that we use the best available suggest otherwise. introducing Penstemon debilis into information, and we find that Dr. (3) Comment on Penstemon debilis undesignated areas in the future. Wolfe’s summary of P. debilis genetics site connectivity: One peer reviewer When we overlaid our rough suitable represents the best currently available stated that the key to connectivity habitat layer for Penstemon debilis with information. We find her calculation of between P. debilis sites is other co- private and Federal lands, we mapped inbreeding coefficients are based on occurring Penstemon species, and 16,862 ac (6,824 ha) of suitable habitat, sound and reliable techniques. specifically P. caespitosa (mat 68 percent on private lands and 32 Furthermore, Dr. Wolfe is in the process penstemon) that shares numerous percent on Federal (Bureau of Land of writing a more formal manuscript pollinators with P. debilis, as discussed Management (BLM)) lands, with a summarizing her data (Wolfe et al. 2012, in the study done by McMullen (1998). spotty distribution measuring roughly pp. 1–31). Our Response: Based on this comment 39 miles (mi) (63 kilometers (km)) from In general, fitness, the size of a on Penstemon caespitosa, that this east to west and 17 mi (28 km) from population, and genetic diversity are species is especially important for the north to south. Of the 5,323 ac (2,154 positively correlated (reviewed in support of P. debilis pollinators, and ha) on BLM lands, 1,515 ac (613 ha) fell Leimu et al. 2006, pp. 942–952). More correspondingly influencing the within occupied units (Units 3 and 4), individuals usually equate to better connectivity between sites of P. debilis leaving 3,808 ac (1,541 ha) of suitable fitness and higher genetic diversity, and (McMullen 1998, p. 27; Tepedino 2011, habitat (23 percent of the total suitable fewer individuals are usually p. 3), we have added this species to our habitat). The remaining BLM ownership accompanied by less fitness and lower list of ‘‘Plant Community’’ features in contains two large patches of suitable genetic diversity. Low genetic diversity our PCEs. habitat, which we identify as the can be a problem for species, especially (4) Comments on unoccupied critical unoccupied units (Units 1 and 2). These those with limited population numbers habitat units (CHUs) for Penstemon unoccupied units contain 1,358 ac (550 or ranges, for several reasons: The debilis: One peer reviewer commented ha) of suitable habitat, representing 40 effects from inbreeding can reduce that for P. debilis, based on its clonal percent of the remaining suitable habitat fitness; the loss of genetic diversity nature and low population numbers, the area on BLM lands. Additional suitable (through genetic erosion or genetic drift ‘‘redundancy’’ criteria was only habitat on BLM lands was much more that leads to the loss of genes or alleles) partially satisfied through the proposed fragmented and spotty, not comprising lessens the ability of populations to designation of two unoccupied areas. the same large, contiguous blocks as the cope with environmental change; The reviewer said that more distant unoccupied units. The majority of the mutations can accumulate in small populations are needed so the species is remaining habitat on BLM land has populations, (although there is less subject to more environmental already been leased. Thus, the four evidence this is a problem) (summarized exigencies (characters). A commenter CHUs represent a good portion of the in Frankham 2005, pp. 131–140); and supported the designation of range of the suitable habitat we mapped. outcrossing rates may be reduced unoccupied units for P. debilis for We have added this language to Criteria (Aguilar et al. 2008, p. 5182). Inbreeding future recovery efforts, stating that Used To Identify Critical Habitat, below. depression is defined as reduced fitness transplanting or the creation of new We make decisions on what areas to as a result of breeding related populations is feasible and necessary for designate as critical habitat based on the individuals. The more generations that the species’ recovery. A State best available information. We may have elapsed since a population has commenter supported our designation refine our knowledge of Penstemon been fragmented or isolated, the less of unoccupied CHUs, but suggested we debilis and what constitutes suitable genetic diversity (Aguilar et al. 2008, p. consider existing leases on Federal habitat in the future as new information 5183). parcels in our designation of becomes available. Additional As pointed out by a commenter, the unoccupied CHUs for P. debilis, to information on the soil and habitat McMullen study did not find any avoid conflicts with active or long-term conditions needed to maximize the inbreeding or outbreeding depression mineral leases. This same State success of P. debilis introduction efforts for the measure of fruit set for commenter reminded us that research in in the future will aid in recovery. We Penstemon debilis (McMullen 1998, p. the future may lead to a better agree there is a strong possibility, given 25). Fruit weight and seed set provided refinement of the areas we consider careful research efforts, that we will be weak evidence that inbreeding suitable for introduction efforts, and able to create new populations of P. depression may be occurring (McMullen that we may want to consider revisions debilis in the future. 1998, pp. 25–26, 41). It is likely that the to these unoccupied CHUs in the future. (5) Comments on our criteria for effects to fruit weight and seed set are Our Response: Through this designating our CHUs: All of our peer what Dr. Wolfe was referencing when designation, we have tried to ensure reviewers responded favorably to the she referred to inbreeding depression. there are sufficient areas for population criteria we developed for the The Wolfe (2010, pp. 1–7) study expansion in the future. Because of the identification of critical habitat of demonstrates that genetic diversity is small number of individuals, clonal Ipomopsis polyantha, Penstemon low for P. debilis, implying a lowered nature, and limited number of debilis, and Phacelia submutica. fitness. It also is reasonable to assume populations, recovery of Penstemon Another reviewer responded that, given that inbreeding depression may be debilis will need to include the the low number of individuals for P.

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debilis, it was appropriate that we not limiting seed set for P. debilis, and, found the best available information include pollinator habitat (the 3,280- therefore, should not be a primary was that on similar or related species, foot (ft) (1,000-meter (m) area). This concern to managers. and used information in the general same reviewer supported our 328-ft Another commenter discussed the literature, including Elliot (2009, pp. (100-m) area for P. submutica to help recommended 656-ft (200-m) buffer 748–756), in order to define pollinator offset edge effects, climate change, the avoidance distance being implemented areas. Our criteria are scientifically ephemeral nature of the species, and by the BLM for surface disturbances based and provide a strong rationale for other impacts. near Phacelia submutica. This conserving these three plant species. Another commenter stated that areas commenter stated we had failed to use Both Ipomopsis polyantha and without suitable habitat should be any specific scientific studies that Penstemon debilis require pollinators excluded from the critical habitat address impacts for oil and gas activities for successful reproduction and genetic designation for Penstemon debilis, to P. submutica, and that we must exchange. Although pollinators were particularly in Unit 3. This commenter conduct these studies. not found to be limiting seed set, stated that because we did not list the Our Response: We consider all of McMullen (1998, p. 33) indicated that loss of pollinator habitat due to energy Units 1 and 3 for Ipomopsis polyantha, the entire suite of pollinators should be development as a threat in our final all of Units 3 and 4 for Penstemon considered important to the long-term listing rule (based on the disturbance of debilis, and all the Phacelia submutica reproductive success of P. debilis. Thus, vegetated areas being not nearly as units to represent the geographical area we delineated occupied areas, and extensive as the foraging distance of the ‘‘on which are found those physical or evaluated the certainty that these areas pollinators), it was inappropriate to biological features (I) essential to the would continue to have adequate include pollinator areas. This same conservation of the species and (II) pollinators, one of the essential physical commenter discussed that P. debilis is a which may require special management and biological features for these species, habitat specialist, making nonoccupied considerations or protections.’’ Because in our process of critical habitat areas outside of suitable habitat all of these units contained plants at the identification. unnecessary to the conservation of the time of listing, they are occupied. Pollinators are necessary for the species, because areas with denser Physical and biological features are reproduction of Penstemon debilis vegetation were unsuitable for the plant further defined in 50 CFR 424.12 as the (McMullen 1998, pp. 25–27). Pollinators growth. This commenter said we had features that may include but are not use a variety of habitats and floral provided no basis for including these limited to: (1) Space for individuals and resources and, therefore, are not areas. The commenter stated that population growth, and for normal confined to suitable habitat for P. unoccupied habitat must be ‘‘essential behavior; (2) Food, water, air, light, debilis. Pollinators generally need: (1) A for the conservation of the species,’’ a minerals, or other nutritional or diversity of native plants whose higher standard than for occupied physiological requirements; (3) Cover or blooming times overlap to provide habitat. This same commenter stated shelter; (4) Sites for breeding, flowers for foraging throughout the that unoccupied areas with suitable reproduction, rearing of offspring, seasons; (2) nesting and egg-laying sites, habitat, unoccupied areas with germination, or seed dispersal; and (5) with appropriate nesting materials; (3) unsuitable habitat, and areas beyond Habitats that are protected from sheltered, undisturbed places for 328-ft (100-m) from identified disturbance or are representative of the hibernation and overwintering; and (4) occurrences should not be included. historic geographical and ecological a landscape free of poisonous chemicals The commenter provided a paper (Elliot distributions of a species. We consider (Shepherd et al. 2003, pp. 49–50). 2009) regarding bumblebees in Colorado the pollinator areas to be essential for Encompassing a diversity of habitats supporting this 328-ft (100-m) area, and reproduction, because both P. debilis and vegetation types will encourage a stated that this area applied on OXY and I. polyantha require pollinators for diversity of pollinators. Our pollinator USA WTP LP and Occidental Oil Shale, successful reproduction (Collins 1995, areas were designed to consider and Inc. (collectively ‘‘Oxy’’) lands and had pp. 35–46; McMullen 1998, pp. 25–27). accommodate these requirements, and adequately protected P. debilis for 2 We consider the suitable habitat in the we have included additional language decades. P. debilis CHUs to be essential sites for in our Criteria Used To Identify Critical Another commenter stated that our seed dispersal and population growth, Habitat, below. DEA did not account for the effect of the with the added benefit of providing Regarding the comment relating to our additional 3,280-ft (1,000-m) buffer for potential areas for future expansions or final listing rule and the threats to Penstemon debilis when estimating the introduction efforts or to locate as of yet pollinators, threats and the physical and potential impacts of critical habitat undiscovered populations. Therefore, biological features essential to the designation, nor did it analyze the these units contain areas occupied by conservation of a species are not the potential impact on unoccupied critical the plants as well as areas with the same. If the loss of pollinator habitat is habitat areas with valid lease rights. physical or biological features essential not considered a threat, this does not This commenter also questioned the to the conservation of the species mean that pollinator habitat is not information in the draft environmental (including areas for pollinators and seed essential for the conservation of a assessment relating to dust deposition dispersal) and that may require special species. Additionally, in our final listing and its effects to species, stating that our management. rule, we qualified the loss of pollinator information was based on different In this final rule, we have further habitat and the threat it poses, by stating species in different habitats and, explained our criteria, especially with that the degree of impact was unknown. therefore, was not applicable. This respect to inclusion of pollinator areas, Through this designation of critical commenter stated that the draft under Criteria Used To Identify Critical habitat, lease rights will not be revoked environmental assessment relied on Habitat, below. We are also providing or removed, nor is there any information contained in a study by further explanation on these criteria in requirement for projects to completely Tepedino (2009), which was on a our final environmental assessment. We avoid critical habitat. The 200-meter different species not closely related to P. recognize that more species-specific buffer mentioned by a reviewer is debilis, and that the study by McMullen research would strengthen our criteria; currently being utilized by the BLM, not (1998) concluded that pollinators were however, in the absence of this, we the Service.

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The FEA considers effects within fragmentation and degradation can take outweigh the benefits of inclusion. We CHUs incrementally, with the most many generations to be realized (Aguilar look forward to cooperating further with stringent project modifications within et al. 2008, p. 5183), initial studies may the State on Ipomopsis polyantha 328-ft (100-m) of plants, more moderate not show these effects. These studies conservation and recovery at all these measures from 328 to 984 ft (100 to 300 may need to be done repeatedly in sites. m), and measures to protect pollinators increments of 20 years or more. (7) Comments on exclusions and the and habitat beyond 984 ft (300 m) Compounding the problem, rare plants management of Penstemon debilis on (Industrial Economics, Inc. 2012, pp. are inherently difficult to sample Oxy lands in Unit 3, Mount Callahan: ES–5, 2–9, 3–14, 4–2). These project because of small populations and Based on the success of ongoing modification distances are based on our corresponding small sample sizes. conservation actions, the State draft projection of what section 7 commented that they support excluding Comments From the State of Colorado consultations may consider for these all Oxy lands within this CHU (Unit 3, three plants (Service 2012a, pp. 1–28). Comments received from the State Mount Callahan). To support this These distances are based on potential (specifically the Colorado Natural Areas exclusion, they are expanding the effects from disturbances including Program (CNAP)) regarding the proposal existing Colorado Natural Areas (CNA) dust, pollutants, changes in erosion and to designate critical habitat for agreement to include the Mount Logan sedimentation, habitat degradation, an Ipomopsis polyantha, Penstemon Mine area, developing best management increase in nonnative species, and debilis, and Phacelia submutica are practices (BMPs) for habitat adjacent to increased fire risk, among others. addressed below. the CNA to protect pollinators and Given the lack of species-specific (6) Comments on Ipomopsis habitat, and conducting further surveys studies, and the relatively recent (in the polyantha Unit 3, Pagosa Springs: The for P. debilis in suitable habitat and the last 10 to 15 years) disturbance caused State commented that both a State Land protection of new populations, should by oil and gas development, we Board (SLB) parcel and a State Wildlife they be located on Oxy lands. The State conducted an extensive literature Area fall within the boundaries of this commended Oxy for their long-term review on effects from disturbances, as unit. They informed us that the SLB has voluntary efforts to protect P. debilis well as from habitat fragmentation. To signed and is implementing a rare plant and discussed the BMPs in place for date, we have reviewed 45 papers that environmental review policy that will protection of P. debilis. The State evaluate the relationship between assure any ground-disturbing projects or emphasized it is important to recognize distance from a disturbance to the major land use changes will not impact these voluntary efforts, encouraging intensity of that disturbance, from a I. polyantha. Because this policy would private land efforts such as these now wide array of disturbances and in a provide more protection than the and into the future. The State also wide array of ecosystems (Service critical habitat designation (since plants commented that these voluntary 2012a, pp. B–3 to B–4). From this are afforded few protections on State protections would lead to more review, we have found effects extending lands), the State requested that the SLB conservation than the protections from 33 ft (10 m) to over 6,562 ft (2,000 parcel be excluded from the critical afforded by critical habitat. m), but with the majority of effects habitat designation. The State did not An additional commenter on behalf of concentrated in the first several request that the State Wildlife Area be Oxy also supported excluding all Oxy hundred meters (Service 2012a, pp. B– excluded from critical habitat. lands within the Penstemon debilis Unit 3 to B–4). From this, and in conjunction Our Response: We have reviewed the 3, Mount Callahan. To support this and coordination with others, we have Colorado SLB Procedures for Rare Plant exclusion, Oxy has agreed to expand the developed the 328-ft (100-m) and 984-ft Environmental Review for Development CNA agreement to include the Mount (300-m) draft guidelines for effect Projects and Land Use Changes (State Logan Mine area (totaling roughly 762 determinations in section 7 Board of Land Commissioners 2012, 3 ac (308 ha)), develop BMPs to provide consultations related to all plant species pp.) that began being implemented on protection for habitats and pollinators in in Colorado (Service 2012a, pp. 1–28), April 19, 2012. These procedures areas adjacent to the natural areas, which were used in the DEA (Industrial formalize SLB’s practice of engaging the conduct further surveys in suitable Economics, Inc. 2012, pp. ES–5, 2–9, 3– CNAP to ensure that projects on SLB habitat and include newly discovered P. 14, 4–2). In combination, we also have lands move forward in a manner debilis populations with over 75 reviewed 74 papers looking at the protective of rare plants. We commend individuals in a Natural Area, and effects of habitat fragmentation on a the SLB and CNAP for their proactive extend the termination clause on the wide array of plants and in a wide array efforts to conserve rare plants in the CNA agreement from 90 days to 2 years. of ecosystems (Service 2012a, pp. B–5 to State of Colorado. This rare plant This commenter expressed concern that B 11). environmental review policy will designating critical habitat on Oxy lands We recognize that the availability of provide protections for the plant on SLB would unreasonably delay and more species-specific information lands for all projects, not just projects complicate domestic energy production evaluating the effects of disturbances, involving a Federal action (such as on Oxy lands and unnecessarily burden such as those from oil and gas funding or permitting). However, we Oxy. The commenter stated that development, may have helped us more could find no tangible benefits to voluntary conservation efforts would accurately delineate critical habitat. exclusion from critical habitat, as provide better protections for P. debilis There are ongoing studies on how Federal activities on these lands that than the species would receive through disturbances are affecting six rare plants would invoke the protective standards the critical habitat designation because in Western Colorado and Eastern Utah, for critical habitat are expected to be the Act only protects plants on private which are already listed under the Act rare. The number of acres involved (110 lands when there is a Federal action (BIO–Logic 2010, pp. 1–9; Pitts et al. ac (44 ha)) is relatively small and (such as Federal funding or a necessary 2010, pp. 1–7; BIO–Logic 2011, pp. 1– included within critical habitat for Federal permit). The commenter also 10). However, much of the oil and gas pollinator protection (the species is suggested that the proposed critical development in the areas where these currently not present on the site). Thus, habitat designation did not plants are found is recent and, given we do not believe that there are any appropriately recognize the efforts that the effects from habitat benefits of exclusion that would undertaken by Oxy, which may be

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interpreted as a disincentive for outweigh the benefits of including these draft environmental assessment from voluntary protections. areas. This is further discussed under March 27 to April 26, 2012 (77 FR Another commenter supported the Exclusions below. 18157). We requested information on exclusion of Oxy lands, provided our We agree with a commenter that a the proposed critical habitat overall criteria for designating critical permanent conservation easement designation, including a request for habitat for Penstemon debilis were not would be preferable to voluntary information on economic impacts, from changed. This support was based on the protections, but we also recognize that July 27 to September 26, 2011. additional protections Oxy has agreed effective conservation can occur in other Furthermore, we requested information to, as described in the previous ways. In addition, Oxy’s long-term on potential critical habitat areas in our paragraph. This commenter stated that a commitment to protect the species, proposed listing rule from June 23 to permanent conservation easement for since 1987, (CNAP 1987, entire) August 23, 2010 (75 FR 35721). the CNA would provide additional provides us assurance that these We worked closely with Oxy and the protections. One peer reviewer voluntary protections will continue into CNAP on their expansion of the CNA expressed concern over the CNA the future. agreement and to address exclusion of exclusion, because the site is relatively (8) Comments on requests for all Oxy lands within the Penstemon undisturbed, making it a high-quality extensions: The State commented that debilis Unit 3, Mount Callahan (see (intact) area. there was not adequate time to get the Exclusions, below, for a more thorough Our Response: Oxy has the majority of new CNA agreement with Oxy signed discussion). three of the four viable populations of before the final critical habitat rule is (9) Comments on unoccupied CHUs Penstemon debilis on their private due for publication. Oxy echoed the for Ipomopsis polyantha: We received lands, making their cooperation in the same concerns, and requested an comments from the U.S. Forest Service conservation of the species essential. extension of the final rule until July 27, (USFS) relating to the boundaries of our We recognize that the voluntary 2013, citing language in the regulations two unoccupied CHUs for I. polyantha: conservation actions that Oxy has as well as the Act allowing a 2-year Unit 2, the O’Neal Hill Special Botanical undertaken to protect P. debilis on their extension on critical habitat Area and Unit 4, Eight Mile Mesa. The lands have been vital to the determinations. We received an comments discussed how the conservation of the species. In our additional comment supporting an bottomland areas of Unit 2 do not proposed critical habitat rule, we extension to accommodate the signing provide suitable habitat for I. polyantha announced we were considering the of Oxy’s CNA agreement for Penstemon because of the dense ground cover with exclusion of Oxy lands based on the debilis. little exposed shale. The USFS also efforts of the landowner. Two counties, two oil and gas discussed several small areas in Unit 4 Oxy has been working to protect companies, and two groups associated that were separated from the large Penstemon debilis since 1987, when with the oil and gas industry requested parcel of contiguous habitat by roads, they first entered into a CNA an extension on the final designation of making management complicated and Agreement. These protection efforts 120 days, until August 24, 2012, to not providing good areas for future include regular monitoring of P. debilis, comment on the DEA. introductions. Another commenter population avoidance, and the Our Response: In an effort to improve supported these refinements of these development and implementation of implementation of the Act, we reached critical habitat units as identified in the BMPs to protect and conserve the a multi-district litigation settlement notice of availability (77 FR 18157). species. In 2008, Oxy expanded the with WildEarth Guardians in May 2011 Our Response: We confirmed these CNA to include a second population of (WildEarth Guardians v. Salazar MDL comments during site visits in the P. debilis. Because of Oxy’s long- Docket No. 2165 (2011)) and with the summer of 2011 and have accordingly standing efforts to conserve Penstemon Center for Biological Diversity in July adjusted the boundaries of both units by debilis and Oxy’s efforts to work 2011 (Center for Biological Diversity v. removing unsuitable habitat. The area of towards further protections for the Salazar MDL Docket No. 2165 (2011)) Unit 2 decreased from 784 to 564 ac plant, we are excluding all Oxy lands outlining a multi-year listing work plan (317 to 228 ha), and the area of Unit 4 within Unit 3, Mount Callahan. We are to systematically review and address decreased from 1,180 to 1,146 ac (478 to excluding these lands based on the species, especially those listed as 464 ha). approved agreements Oxy has made to candidates under the Act. The (10) Comment on the quality of date and their efforts to move toward agreement includes species across the information used: One commenter finalizing the additional agreement to country, and sets specific timelines for questioned the validity of our conserve this species, as evidenced by actions to be completed. The work plans information, although no specifics were the ongoing conservation partnership, as for these agreements identify that we provided, stating that our finding is described above and under Exclusions will complete the final critical habitat based on weak and unreliable scientific below. We recognize that the Mount rule for Ipomopsis polyantha, information. The commenter stated that Callahan area represents a high-quality Penstemon debilis, and Phacelia by using unpublished reports we were setting. Before we may make an submutica before the end of the 2012 not relying on the best data available. exclusion from areas that meet the Fiscal Year (the end of September 2012) The commenter stated that we should definition of critical habitat, we must (WildEarth Guardians v. Salazar MDL use peer-reviewed science. Another weigh the benefits of inclusion versus Docket No. 2165 (2011). This timing commenter stated that the designation is the benefits of exclusion. Because plants does not allow us to extend the based on incomplete and outdated receive very few protections on private comment period. science and that the data we relied on lands under the Act (which primarily Moreover, we believe adequate time were either incomplete, not fully occur only in the event of a Federal has been provided for the public to considered, or were improperly relied action, such as Federal permitting or provide comment on the proposed on and that our proposed critical habitat Federal funding), and because of the critical habitat rule and the associated designation was therefore flawed. This protections and greater conservation economic analysis. We have requested same commenter requested that we benefits provided by Oxy, we determine comments on critical habitat in our conduct another peer review because of that the benefits of excluding Oxy lands notice of availability of the DEA and our data quality issues. Another

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commenter stated that our DEA and parties concerning the proposed rule. three plant species, nor did the draft environmental assessment did not Comments and information we received commenter provide examples of such contain sufficient scientific analysis to helped inform this final rule. efforts. Without knowledge of these justify the breadth of the critical habitat In conclusion, we believe we have agreements, we are unable to assess the designation, although the commenter used the best available scientific benefits of inclusion versus the benefits was not specific on what additional information for the designation of of exclusion. Although plants receive information was needed. This same critical habitat for these three plants. We few protections on private lands, the commenter stated that the draft did conduct a peer review of our Act does not allow us to exclude habitat environmental assessment did not meet proposed critical habitat designation areas for plants based on this reasoning. our information quality guidelines, and incorporated changes into this final Instead, as the Act states, we must stating that element occurrence data and rule. designate the geographic areas ‘‘on genetic data are not publicly available. (11) Comment on the taxonomic which are found those physical or Our Response: Section 4 of the Act validity of Phacelia submutica: One biological features (I) essential to the requires that we designate critical commenter questioned the validity of P. conservation of the species.’’ We are not habitat on the basis of the best scientific submutica as a stand-alone species, making any exclusions based on the data available. Further, our Policy on citing that NatureServe recognizes the economic analysis, as we concluded Information Standards under the Act plant as a variety instead of a species. that this rule would not result in (published in the Federal Register on Our Response: Phacelia submutica significant economic impacts (please see July 1, 1994 (59 FR 34271)), the also has been known by the name of P. Exclusions Based on Economic Impacts, Information Quality Act (section 515 of scopulina var. submutica. In 1944, below). We are excluding lands covered the Treasury and General Government Howell described P. submutica as a by the voluntary agreements between Appropriations Act for Fiscal Year 2001 distinct species, citing 13 different Oxy and CNAP from this final (Pub. L. 106–554; H.R. 5658)), and our characteristics that distinguished the 2 designation (see Exclusions Based on associated Information Quality taxa (Howell 1944, pp. 371–372). In Other Relevant Impacts, below). Guidelines, provide criteria, establish 1981, Halse changed the species to a (13) Comments on designating procedures, and provide guidance to variety, stating the taxon was not well unoccupied units for Phacelia ensure that our decisions are based on enough differentiated to deserve species submutica: One commenter suggested the best scientific data available. They recognition, but did merit varietal we consider designating other similar require our biologists, to the extent status. His determination was based on slopes and soils with the PCEs for P. consistent with the Act and with the use limited material (Halse 1981, p. 130; submutica based on the potential of the best scientific data available, to O’Kane 1987, p. 2). The Colorado habitat model done by Decker et al. use primary and original sources of Natural Heritage Program (CNHP), (2005). information as the basis for which is part of the NatureServe Our Response: The Decker et al. recommendations to designate critical network, recognizes the taxon as a (2005) habitat model is not refined habitat. Primary or original sources are species (CNHP 2012b, pp. 19–110), enough to allow us to find the small those that are closest to the subject which should eventually translate to a barren patches, within the larger plant being studied, as opposed to those that change at the National level. The Biota communities, where Phacelia cite, comment on, or build upon of North America Program (BONAP) submutica is found. In addition, we primary sources. now recognizes the taxon as a species believe that the CHUs we have The Act and our regulations do not (Kartesz 2009, p. 1), which similarly identified contain the PCEs and are require us to use only peer-reviewed should eventually make its way to the adequate in number, size, and literature, but instead they require us to USDA Natural Resources Conservation distribution to provide adequate use the ‘‘best scientific and commercial Service’s Plants Database site, as well as redundancy, resiliency, and data available’’ in a critical habitat the Integrated Taxonomic Information representation for the species. designation We use information from System. We determine, based on (14) Comments on plant locations: many different sources, including BONAP and other findings, this to be One commenter asked why we did not survey reports completed by qualified the best available information on the include Phacelia submutica locations individuals, Master’s thesis research taxonomy of the species. east of Parachute, Colorado. that has been reviewed but not (12) Other comments on exclusions: Our Response: The three Phacelia published in a journal, status reports, One commenter suggested that any submutica points identified by the peer-reviewed literature, other entities that invoke voluntary commenter have not been verified. The unpublished governmental and conservation efforts that have proven to botanist at the Colorado River Valley nongovernmental reports, reports be effective on private lands or leased Field Office of the BLM has revisited prepared by industry, personal public lands should be granted these sites and did not find any suitable communication about management or appropriate exclusions to continue habitat or plants. She believes the other relevant topics, and other sources. economic activities in those areas. This contractor that located the plants may Also, in accordance with our peer same commenter urged us to consider have been mistaken in their review policy, published on July 1, 1994 exclusions for all three species on both identification (DeYoung 2010b, p. 1). (59 FR 34270), we solicited expert private and public lands. One Based on this information, we conclude opinions from knowledgeable commenter stated that critical habitat that the site does not meet the definition individuals with scientific expertise that should not be designated on any private of critical habitat. included familiarity with the species, lands. Several commenters suggested (15) Comments on designating critical the geographic region in which the exclusions based on economic impacts habitat: One commenter stated that we species occurs, and conservation to the oil and gas industry. had not established that designating biology principles. Additionally, we Our Response: Aside from the Oxy critical habitat is necessary for these requested comments or information CNA agreement and the Colorado SLB species. from other concerned governmental rare plant environmental review policy, Our Response: The Act specifically agencies, the scientific community, we are unaware of any other effective states in section 4(a)(3)(A) that critical industry, and any other interested voluntary conservation efforts for these habitat will be concurrently designated

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with a listing determination for are likely to create a situation where it commenters asserted that the proposed threatened or endangered species. will be extremely difficult, if not critical habitat will create further delays Critical habitat is defined in section 3 of impossible, to locate well pads and and, when combined with the current the Act as: (1) The specific areas within associated infrastructure. restrictions, may potentially prohibit oil the geographical area occupied by the Our Response: The DEA considers the and gas development within certain species, at the time it is listed in restrictions placed on oil and gas portions of the proposed critical habitat accordance with the Act, on which are development on lands managed by the areas that overlap existing oil and gas found those physical or biological BLM Colorado River Valley Field Office, fields or areas prospective for natural features (a) essential to the conservation which administers the Roan Plateau gas. Commenters indicated that the of the species, and (b) which may RMP. First, lands managed by BLM that economic impact to oil and gas require special management are covered by a no surface occupancy companies and Federal, State, and local considerations or protection; and (2) (NSO) stipulation (where future oil and governments associated with the lost specific areas outside the geographical gas development will not likely pose a potential to develop oil and gas area occupied by the species at the time threat to the plant) are not included for resources would exceed the costs it is listed, upon a determination by the consideration in the incremental effects associated with section 7 consultation Secretary that such areas are essential analysis of the DEA. Next, the analysis currently quantified in the DEA. for the conservation of the species. considers the other restrictions placed Our Response: The Service is Section 4 of the Act requires that, to the on oil and gas development by the Roan committed to working with project maximum extent prudent and Plateau RMP and the conservation proponents to implement a series of determinable, critical habitat will be measures likely requested by the Service conservation efforts to protect the plants designated for threatened and during section 7 consultation and and their habitat, while allowing oil and endangered species. In our final listing concludes that these restrictions do not gas development projects to move rule for the three species (76 FR 45054), appear to preclude drilling activities. forward. The DEA recognizes that oil we found that designating critical More specifically, as described in and gas resources on Federal lands are habitat was both prudent and Section 3.4.1 of the DEA, during section managed through a myriad of determinable. 7 consultation the Service may request regulations. Section 3.3.2 of the DEA (16) Comments on disturbance and changes to the design of a well pad and describes some of these regulations and Penstemon debilis: One commenter supporting infrastructure within 300 how they affect the level of future oil stated that we did not evaluate the meters of Penstemon debilis occurrences and gas development within the positive effects of oil and gas to avoid jeopardy to the species. While proposed critical habitat. During section development to P. debilis since the this baseline conservation effort may 7 consultation, the Service is likely to species prefers disturbed soils and has affect the location of some well pads, it recommend a series of conservation expanded populations in areas that have is unlikely to affect the siting of most efforts within critical habitat to avoid been previously disturbed. wells within the critical habitat area. A impacts to the plants and their habitat. Our Response: We recognize that discussion of this concern has been The Service does not expect to Penstemon debilis prefers some levels of added to Section 3.3.1 of the FEA. A recommend the prohibition of oil and natural disturbance, and indicate this in more specific discussion of the Roan gas activities from critical habitat areas both our description of physical and Plateau RMP Amendment has been and does not believe that the biological features and our list of PCEs. added to Section 3.3.2 of the FEA. recommended conservation efforts will However, we have no information to The RMP has two lease stipulations lead to a decrease in oil and gas suggest that P. debilis benefits from that directly address endangered, development. Therefore, the DEA artificial disturbances associated with threatened, and candidate plants. A no quantifies the reasonably foreseeable oil and gas activities. We know that P. surface occupancy lease stipulation costs associated with these conservation debilis is found in artificially disturbed (NSO–12) protects occupied habitat and efforts and does not quantify impacts areas at Mount Logan Mine. However, adjacent potential habitat from ground associated with a decrease in resource we have no information on where the disturbing activities, with narrow extraction. plant was distributed prior to that exceptions. A controlled surface use In addition, paragraph 96 of the DEA disturbance. For example, we do not stipulation (CSU–12) protects special discusses the potential for time delays know if the plant was once found across status plant species and plant associated with consultation. This the entire area and is now distributed in communities by authorizing BLM to paragraph qualitatively discusses the small patches, or if the plant was impose special design, operation, potential for this impact, but notes that introduced to the site with seeds. We mitigation, and reclamation measures, the extent of possible delay is not also have no information on which type including relocation of ground known and therefore the impact of time of artificial disturbances, and at what disturbing activities by more than 200 delay is not quantified in this analysis. levels, may or may not benefit the plant. meters, with some exceptions. Special The Service does not expect to Therefore, we have not evaluated these management considerations and recommend timing or seasonal effects. protections are thus contemplated. restrictions for the plants that could (17) Comments related to baseline (18) Comments related to oil and gas potentially overlap with those currently conservation already required for oil development and the DEA: Multiple in place on Federal lands for other and gas development relating to the commenters asserted that the DEA species. A more detailed section on the DEA: One commenter noted that the underestimates impacts to the oil and concerns raised by these commenters DEA did not consider the impacts to oil gas industry. The commenters stated has been added to Section 3.3.1 of the and gas development caused by the that oil and gas development on Federal FEA. restrictions set forth in the Roan Plateau lands is currently subject to overlapping (19) Comments related to the Resource Management Plan (RMP) regulations, seasonal restrictions, and uncertainty associated with future oil Amendment. The commenter stated that legal challenges. Commenters indicated and gas development and the DEA: the restrictions set forth in this RMP that these restrictions complicate access Multiple commenters asserted that the combined with the designation of to Federal resources and often lead to methods used in the DEA to forecast the critical habitat for the Penstemon debilis delays in resource extraction. The level of future oil and gas development

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are flawed and the resulting estimates of proposed critical habitat designation pads outside of the Natural Areas. the number of wells drilled is too low. may undermine or preempt existing oil Paragraph 109 of the FEA explains the Commenters stated that the fluctuating and gas lease rights on Federal lands. assumptions behind which well pads price of natural gas, technological The commenters state that BLM and the are included in the economic analysis in advances, and discoveries of new Service should not infringe on lease more detail. producing formations throughout the rights by overly restricting oil and gas Piceance Basin have contributed to activities. Summary of Changes From Proposed changes in the level of current and Our Response: The conservation Rule future oil and gas development. Further efforts described in the DEA that are Modifications to Critical Habitat Unit commenters believe that it is not likely to be recommended by the Boundaries reasonable to assume that the number of Service during section 7 consultation • Based on additional information future wells will be evenly distributed include efforts such as surveying, which identified unsuitable and within each county based on the monitoring, temporary fencing, and discontinuous habitat (Holtrop 2011, historic distribution of wells. weed control. Section 3.4.1 of the DEA Our Response: The DEA describes the likely modifications pp. 1–2), we refined our designation acknowledges that the most significant related to oil and gas development in within Ipomopsis polyantha Unit 2 and source of uncertainty in the analysis is detail. These conservation efforts will reduced it from 784 to 564 ac (317 to the level and distribution of future oil allow for oil and gas development on 228 ha), and reduced Unit 4 from 1,180 and gas development. The economic Federal lands and therefore are not to 1,146 ac (478 to 464 ha). These analysis employs multiple scenarios of viewed as undermining oil and gas lease changes were made based on comments future oil and gas activity to account for rights. from the USFS (Holtrop 2011), as well this uncertainty. The DEA uses the best (22) Comments on privately owned as site visits made by the Service during publicly available information on surface and mineral rights: One the summer of 2011. We notified the current and future oil and gas commenter stated that it is public of these changes in our notice of development, while recognizing that the inappropriate for the DEA to ignore availability for the DEA and draft number of actual wells drilled could potential economic impacts associated environmental assessment (77 FR with the proposed critical habitat 18157; March 27, 2012). vary greatly due to changing economic • conditions and technological designation in areas where both the We have modified the boundaries of innovations. surface and mineral rights are privately Penstemon debilis Unit 3, Mount Stakeholders in the region indicated owned. Callahan. We have modified these that future drilling activity within Mesa Our Response: The DEA assumes that boundaries based on the ongoing and Garfield Counties would be limited a Federal action will not exist for oil partnership and conservation efforts to areas within the Piceance and and gas development in areas where between Oxy and CNAP, an existing Paradox Basins and, therefore, the DEA both the surface and mineral rights are agreement between Oxy and CNAP to restricts its projections to these areas. privately owned. Therefore, project conserve P. debilis, and well-formulated No better information is publicly proponents are not required to consult plans to increase the scope of this available on the future distribution of with the Service in these areas. Section agreement. We are excluding all Oxy wells within each county. Section 3.3.1 3.5 of the DEA acknowledges that lands in this unit. This is further of the FEA describes the oil and gas projects on privately-owned lands may discussed in our Exclusions section and industry’s concern that the number of have a Federal action if they require a in the Unit description. The Unit was gas wells may be underestimated in the permit from the U.S. Army Corps of reduced in size from 8,013 to 4,369 ac DEA. Engineers under section 402 of the (3,243 to 1,769 ha). We announced that (20) Comments on economic impacts Clean Water Act. we were considering these areas for to Federal, State, and local governments: (23) Comments on oil and gas exclusion in the notice of availability for Multiple commenters stated that the development in Penstemon debilis Unit the DEA and draft environmental DEA should consider the impact to 3: One commenter indicated that the assessment (77 FR 18157) Federal, State, and local governments of DEA underestimated the number of • Based on site surveys in 2011 that the proposed critical habitat future well pads to be constructed located more areas with Phacelia designation. In particular, these within proposed Unit 3 for Penstemon submutica plants, we have modified the commenters asserted that the debilis. The commenter states that the boundaries of P. submutica Unit 6, designation of critical habitat will lead DEA accounts for three future multi- Ashmead Draw; Unit 7, Baugh to lost oil and gas development well pads, but in total 15 multi-well Reservoir; and Unit 9, Anderson Gulch opportunities, which will in turn result pads are estimated. (Langton 2010a, spatial data; CNHP in lost royalty and tax revenues to the Our Response: As described in 2012b). Unit 6 increased from 1,220 to Federal, State, and local governments. paragraph 105, the DEA assumes that 1,276 ac (494 to 516 ha); Unit 7 Our Response: In paragraph 97, the three multi-well pads will be drilled increased from 28 to 430 ac (12 to 174 DEA states that ‘‘if resource production within the currently existing Mount ha); Unit 9 increased from 310 to 341 ac is curtailed due to conservation efforts, Callahan and Mount Callahan Saddle (122 to 138 ha). We notified the public then mineral owners could receive Colorado Natural Areas within Unit 3 of these increases in our Notice of fewer royalties.’’ However, the DEA goes for Penstemon debilis. The remaining 12 Availability for the DEA and draft on to explain that the Service is unlikely well pads are located on privately environmental assessment (77 FR to recommend the prohibition of oil and owned property outside of the Natural 18157; March 27, 2012). gas activities from within critical habitat Areas. The DEA assumes that there will Modification to Primary Constituent areas. Therefore, no loss in revenues to be no Federal nexus for oil and gas Elements Federal, State, or local governments is development on privately owned land anticipated. and thus no need for consultation with • We revised the PCE for Penstemon (21) Comments relating to oil and gas the Service. Therefore, there will be no debilis regarding habitat for pollinators lease rights on Federal lands: Two impacts associated with the to accommodate the mud-nesting habits commenters express concern that the development of the additional 12 well of the wasp, Pseudomasarid vespoides,

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based on information provided by a peer wilderness, reserve, preserve, or other Section 4 of the Act requires that we reviewer (Tepedino 2011, p. 1). conservation area. Such designation designate critical habitat on the basis of • We added to the PCE for Penstemon does not allow the government or public the best scientific data available. debilis in order to further describe an to access private lands. Such Further, our Policy on Information additional necessary Penstemon species designation does not require Standards under the Act (published in (P. caespitosa) for support of pollinators implementation of restoration, recovery, the Federal Register on July 1, 1994 (59 and connectivity between sites, based or enhancement measures by non- FR 34271)), the Information Quality Act on information provided by a peer Federal landowners. Where a landowner (section 515 of the Treasury and General reviewer (Tepedino 2011, p. 2). requests Federal agency funding or Government Appropriations Act for authorization for an action that may Fiscal Year 2001 (Pub. L. 106–554; H.R. Clarifications in Our Criteria Used To affect a listed species or critical habitat, 5658)), and our associated Information Identify Critical Habitat the consultation requirements of section Quality Guidelines, provide criteria, • We have added language to clarify 7(a)(2) of the Act would apply, but even establish procedures, and provide our reasoning for designation of in the event of a destruction or adverse guidance to ensure that our decisions pollinator areas. modification finding, the obligation of are based on the best scientific data • We have added language to clarify the Federal action agency and the available. They require our biologists, to our designation of unoccupied units for landowner is not to restore or recover the extent consistent with the Act and Penstemon debilis. the species, but to implement with the use of the best scientific data available, to use primary and original Critical Habitat reasonable and prudent alternatives to avoid destruction or adverse sources of information as the basis for Background modification of critical habitat. recommendations to designate critical Under the first prong of the Act’s habitat. Critical habitat is defined in section 3 When we are determining which areas of the Act as: definition of critical habitat, areas within the geographical area occupied should be designated as critical habitat, (1) The specific areas within the our primary source of information is geographical area occupied by the by the species at the time it was listed are included in a critical habitat generally the information developed species, at the time it is listed in during the listing process for the accordance with the Act, on which are designation if they contain physical or biological features (1) which are species. Additional information sources found those physical or biological may include the recovery plan for the essential to the conservation of the features species, articles in peer-reviewed species and (2) which may require (a) Essential to the conservation of the journals, conservation plans developed special management considerations or species and by States and counties, scientific status protection. For these areas, critical (b) Which may require special surveys and studies, biological habitat designations identify those management considerations or assessments, other unpublished physical or biological features that are protection; and materials, or experts’ opinions or essential to the conservation of the (2) Specific areas outside the personal knowledge. geographical area occupied by the species (such as space, food, cover, and Habitat is dynamic, and species may species at the time it is listed, upon a protected habitat). In identifying those move from one area to another over determination by the Secretary that such physical and biological features within time. We recognize that critical habitat areas are essential for the conservation an area, we focus on the principal designated at a particular point in time of the species. biological or physical constituent may not include all of the habitat areas Conservation, as defined under elements (PCEs such as roost sites, that we may later determine are section 3 of the Act, means to use all nesting grounds, seasonal wetlands, necessary for the recovery of the methods and procedures that are water quality, tide, soil type) that are species. For these reasons, a critical necessary to bring an endangered or essential to the conservation of the habitat designation does not signal that threatened species to the point at which species. PCEs are those specific habitat outside the designated area is the measures provided pursuant to the elements of physical or biological unimportant or may not be needed for Act are no longer necessary. Such features that provide for a species’ life- recovery of the species. Areas that are methods and procedures include, but history processes and are essential to important to the conservation of the are not limited to, all activities the conservation of the species. species, both inside and outside the associated with scientific resources Under the second prong of the Act’s critical habitat designation, will management such as research, census, definition of critical habitat, we can continue to be subject to: law enforcement, habitat acquisition designate critical habitat in areas (1) Conservation actions implemented and maintenance, propagation, live outside the geographical area occupied under section 7(a)(1) of the Act, trapping, and transplantation, and, in by the species at the time it is listed, (2) regulatory protections afforded by the extraordinary case where population upon a determination that such areas the requirement in section 7(a)(2) of the pressures within a given ecosystem are essential for the conservation of the Act for Federal agencies to ensure their cannot be otherwise relieved, may species. For example, an area currently actions are not likely to jeopardize the include regulated loss. occupied by the species but that was not continued existence of any endangered Critical habitat receives protection occupied at the time of listing may be or threatened species, and (3) the under section 7 of the Act through the essential to the conservation of the prohibitions of section 9 of the Act if requirement that Federal agencies species and may be included in the actions occurring in these areas may ensure, in consultation with the Service, critical habitat designation. We affect the species. Federally funded or that any action they authorize, fund, or designate critical habitat in areas permitted projects affecting listed carry out is not likely to result in the outside the geographical area occupied species outside their designated critical destruction or adverse modification of by a species only when a designation habitat areas may still result in jeopardy critical habitat. The designation of limited to its range would be inadequate findings in some cases. These critical habitat does not affect land to ensure the conservation of the protections and conservation tools will ownership or establish a refuge, species. continue to contribute to recovery of

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these species. Similarly, critical habitat Juniperus scopulorum (Rocky Mountain I. polyantha elevational shifts. The designations made on the basis of the juniper), or J. osteosperma (Utah above studies were done in different best available information at the time of juniper) and Quercus gambellii (Gambel areas, Western Europe and California, designation will not control the oak) plant communities (Anderson and looking at different species. Mancos direction and substance of future 2004, p. 20). Within these plant shale habitats extend into these higher recovery plans, habitat conservation communities, the plant is found in open and lower elevations. plans (HCPs), or other species or more sparsely vegetated areas where conservation planning efforts if new plant cover is less than 5 or 10 percent, Food, Water, Air, Light, Minerals, or information available at the time of although these interspaces can be small Other Nutritional or Physiological these planning efforts calls for a within the greater plant community Requirements different outcome. (less than 100 ft2 (10 m2)). Because the plant is found in these open areas it is Soils—Ipomopsis polyantha is found Physical or Biological Features thought to be a poor competitor. Dense on Mancos shale soils from the Upper In accordance with section 3(5)(A)(i) stands of nonnative invasive grasses Cretaceous period within the elevation and 4(b)(1)(A) of the Act and regulations such as Bromus inermis (smooth brome) range described above. These shales at 50 CFR 424.12, in determining which appear to almost totally exclude the comprise a heavy gray clay loam areas within the geographical area species (Anderson 2004, p. 36). alluvium (loose) soil derived from shale, occupied by the species at the time of Complexity in Ipomopsis polyantha sandstone, clay, and residuum that is listing to designate as critical habitat, plant communities is important because unconsolidated, weathered mineral we consider the physical or biological pollinator diversity at I. polyantha sites material that has accumulated as features essential to the conservation of is higher at more vegetatively diverse consolidated rock and disintegrated in the species and which may require sites (Collins 1995, p. 107). The place (Collins 1995, pp. 2–4). Although special management considerations or importance of pollinators for I. Mancos shale soils do not retain soil protection. These include, but are not polyantha is further discussed under moisture well, I. polyantha seeds grow limited to: ‘‘Reproduction’’ below. Therefore, based best when germinated in these soils (1) Space for individual and on the information above, we identify (Collins 1995, p. 87). We conclude that population growth and for normal sparsely vegetated, barren shales, the soils where I. polyantha are found behavior; Ponderosa pine margins, Ponderosa are among the harshest local sites for (2) Food, water, air, light, minerals, or pine and juniper, or juniper and oak plant growth because of the lack of other nutritional or physiological plant communities to be a physical or vegetation at occupied sites, and requirements; biological feature for this plant. Given because the soils are heavy, droughty, that much of the area where I. polyantha (3) Cover or shelter; and deficient in nutrients. Species that (4) Sites for breeding, reproduction, or currently exists has already been altered occupy such sites have been called rearing (or development) of offspring; to some degree, these plant and communities may be historical. For ‘‘stress-tolerators’’ (Grime 1977, p. (5) Habitats that are protected from example, the adjacent forest that would 1196). Because I. polyantha plants are disturbance or are representative of the have naturally occurred in I. polyantha found only on Mancos shale soils, and historical, geographical, and ecological habitat may have been thinned or because greenhouse trials have found distributions of a species. removed. In another example, forage that seedlings grow best in Mancos We derive the specific physical or species may have been planted in shale soils, we have identified these biological features essential for habitat that was once more suitable for Mancos shale soils as a physical or Ipomopsis polyantha, Penstemon I. polyantha. biological feature for this plant. debilis, and Phacelia submutica from Elevation—Known populations of Climate—Average annual rainfall in studies of the species’ habitat, ecology, Ipomopsis polyantha are found from Pagosa Springs is 20 inches (in) (51 and life-history as described in the 6,750 to 7,775 ft (2,050 to 2,370 m) centimeters (cm)) (Anderson 2004, p. Critical Habitat section of the proposed (Service 2011a, p. 1) on Mancos shale 21). Winters are cold with snow cover rule to designate critical habitat soils (as descibed below). Because commonly present throughout the published in the Federal Register on plants have not been identified outside winter months. Winter snow is July 27, 2011 (76 FR 45078), and in the of this elevation band and because important for preventing severe frost growing conditions frequently change information presented below. damage to some plants during the across elevation gradients, we have Additional information can be found in winter months (Bannister et al. 2005, identified elevations from 6,400 to 8,100 the final listing rule published in the pp. 250–251) and may be important for ft (1,950 to 2,475 m) to be a physical or Federal Register on July 27, 2011 (76 FR Ipomopsis polyantha. Freezing 45054). biological feature for this plant. We have extended the elevation range 328 ft (100 temperatures can occur into June and Ipomopsis polyantha m) upward and downward in an attempt even July, indicating that I. polyantha We have determined that Ipomopsis to provide areas where the plant could can tolerate frost because it grows and polyantha requires the following migrate, given shifting climates blooms during this time (Anderson physical and biological features: (Callaghan et al. 2004, entire; Crimmins 2004, p. 21). May and June, when I. et al. 2011, entire). We consider this 328 polyantha blooms, are, on average, the Space for Individual and Population ft (100 m) to be a conservative driest months of the year (Anderson Growth allowance since studies elsewhere on 2004, p. 21; Service 2011b, p. 52). Plant Community and Competitive climate change elevational shifts have Because I. polyantha has evolved in Ability—Ipomopsis polyantha is found found more dramatic changes even in these climatic conditions, we have on barren shales, or in the open the last century: 95 ft (29 m) upward per identified suitable precipitation; cold, montane grassland (primarily Festuca decade (Lenoir et al. 2008, entire), or an dry springs; and winter snow as arizonica (Arizona fescue)) understory average of 279 ft (85 m) downward since physical or biological features for this at the edges of open Pinus ponderosa the 1930s (Crimmins et al. 2011, entire). plant. These climatic conditions are (Ponderosa pine), Ponderosa pine and We do not have information specific to influenced, in part, by elevation.

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Cover or Shelter Habitats Protected From Disturbance or Penstemon debilis Representative of the Historic While Ipomopsis polyantha seeds and We have determined that Penstemon Geographical and Ecological debilis requires the following physical seedlings certainly require ‘‘safe sites’’ Distribution of the Species for their germination and establishment, and biological features: these microclimates are too small to be Disturbance Regime—The native Space for Individual and Population considered or managed here as a habitat of Ipomopsis polyantha has been Growth physical or biological feature for this extensively modified (Anderson 2004, Plant Community and Competitive plant. We do not understand exactly p. 28). The species is considered a Ability—Penstemon debilis is found on what physical characteristics constitute ruderal species, which means it is one steep, constantly shifting shale cliffs a safe site other than that they are of the first plant species to colonize with little vegetation. The decline or locations where the appropriate disturbed lands. Seeds are not thought loss of several populations has been conditions for seedling germination and to disperse far. Plants are able to attributed to encroaching vegetation; growth exist. We believe these features colonize nearby disturbed areas quickly. therefore, it is assumed that P. debilis is are encompassed in the ‘‘Plant The species is found in light to a poor competitor (McMullen 1998, p. Community and Competitive Ability’’ moderately disturbed areas, such as rills 72). The areas where P. debilis are found and ‘‘Soils’’ sections discussed above. (small, narrow, shallow incisions in are characterized as ‘‘Rocky Mountain topsoil layers caused by erosion by cliff and canyon’’ (NatureServe 2004, p. Sites for Breeding, Reproduction, or overland flow or surface runoffs), areas 10). The plant community where P. Rearing (or Development) of Offspring that are only occasionally disturbed, or debilis is found is unique, because Reproduction—Ipomopsis polyantha areas with previous disturbances that instead of being dominated by one or sets far less fruit when self-pollinated (2 have been colonized and not two common species as most plant communities are, it has a high diversity to 8 percent versus 47 percent fruit set subsequently disturbed (i.e., previously of uncommon species that also are oil when crossed with pollen from another cleared areas that have had some time shale endemics (McMullen 1998, p. 5). plant) (Collins 1995, p. 36). Open to recover) (Anderson 2004, p. 23; 75 FR 35724–35726). Some of these These uncommon endemic species pollinated (unbagged and not include Mentzelia rhizomata (Roan disturbances are now maintained or experimentally manipulated) plants set Cliffs blazingstar), Thalictrum created by human activities (such as even more fruit (77 percent) (Collins heliophilum (sun-loving meadowrue), light grazing or the recolonization of 1995, p. 36). Also, male and female Astragalus lutosus (dragon milkvetch), reproductive parts are separated both Mancos shale substrate roads that are no and Lesquerella parviflora (Piceance spatially and temporally (Collins 1995, longer used) that mimic the constant bladderpod), Penstemon osterhoutii pp. 34–35). Therefore, we conclude that erosion that occurs on the highly erosive (Osterhout beardtongue), and Festuca pollinators are necessary for the long- Mancos shale soils and seem to dasyclada (Utah or oil shale fescue) term successful reproduction and maintain I. polyantha at a site. (McMullen 1998, p. 5). More common conservation of the plant. Over 30 Ipomopsis polyantha sites with constant species include Holodiscus discolor different insects have been collected or repetitive disturbance, especially (oceanspray), Penstemon caespitosus visiting I. polyantha flowers (Collins sites with constant heavy grazing or (mat penstemon), Cercocarpus 1995, pp. 47–74). The primary repeated mowing, have been lost (Mayo montanus (Mountain mahogany), and pollinators are all bee species; these 2008, pp. 1–2). Fire also may have Chrysothamnus viscidiflorus (Yellow include the nonnative honeybee Apis played a role in maintaining open rabbitbrush) (O’Kane and Anderson mellifera (honeybees) and native bees habitats and disturbances for I. 1987, p. 415; McMullen 1998, p. 5). that nest in the ground or twigs polyantha in the past (Anderson 2004, Penstemon caespitosus is especially including species of Augochlorella (a p. 22), as it historically did in all important because it supports the type of Halictid or sweat bee), Ponderosa pine forests across the West pollinators of P. debilis and may Anthophora (digger bees), Bombus (Brown and Smith 2000, p. 97). provide connectivity between (bumblebee), Dialictus (another type of Interestingly, Ipomopsis polyantha populations (McMullen 1998, p. 27; Halictid or sweat bee), Megachile individuals at newly disturbed sites Tepedino 2011, p. 3). We consider sparse vegetation (with less than 10 (leafcutter bees), and Lasioglossum were slightly more likely to self- percent plant cover), assembled of other (another type of Halictid or sweat bee) pollinate than were plants in later oil shale specific plants, including P. successional areas (Collins 1995, p. 99), (Collins 1995, p. 71). Most of these caespitosus, and not dominated by any demonstrating that disturbance is pollinators are solitary and do not live one species, to be a physical or communally, with the exception of important enough to I. polyantha that it biological feature for this plant. honeybees, which live socially, and may influence reproductive success Elevation—Known populations of bumblebees, which are partially social (self-pollinated individuals are less Penstemon debilis are found from 5,600 with seasonal summer colonies. reproductively successful) and possibly to 9,250 ft (1,700 to 2,820 m) in Pollinator diversity was higher at I. genetic diversity (self-pollination leads elevation (Service 2011a, p. 3) on polyantha sites with more complex to lowered genetic diversity). Managing specific soils (as described below). plant communities (Collins 1995, p. for an appropriate disturbance type and Because plants have not been 107). Because pollinators are necessary level can be difficult since we lack documented outside of this elevation for successful reproduction of I. research to better quantify these band and because growing conditions polyantha, we have identified measures. Because I. polyantha is found frequently change across elevation pollinators and their associated habitats only within areas with light to moderate gradients, we have identified elevations as an essential biological feature for this or discontinuous disturbances, we have from 5,250 to 9,600 ft (1,600 to 2,920 m) plant. identified the disturbance regime to be to be a physical or biological feature for a physical or biological feature for this this plant. We have extended the plant. elevation range 328 ft (100 m) upward

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and downward in an attempt to provide greenhouse setting, P. debilis plants Atoposmia elongata (a close relative of areas where the plant could migrate, were grown easily in potting soil. Soil Osmia), several Bombus (bumblebee) given shifting climates (Callaghan et al. may not directly influence P. debilis’ species, and a native wasp 2004, pp. 418–435; Crimmins et al. distribution, but may instead have an Pseudomasaris vespoides (McMullen 2011, pp. 324–327). We consider this indirect effect on the plant’s distribution 1998, pp. 28–29, 89–100). All of these 328 ft (100 m) to be a conservative by limiting the establishment of other pollinators are either ground or twig allowance since studies on climate vegetation (McMullen 1998, p. 67). Soil nesting or construct mud nests on the change elevational shifts have found morphology, rather than soil chemistry, underside of rocks or shale. None of more dramatic changes even in the last appears to better explain the plant’s these pollinators are rare, nor are they century: 95 ft (29 m) upward per decade distribution (McMullen 1998, p. 74). specialists on P. debilis, although some (Lenoir et al. 2008, pp. 1768–1770), or Because the plant is only found on the of these pollinators, such as Osmia, are an average of 279 ft (85 m) downward Parachute Creek Member and Lower specialists within the genus Penstemon since the 1930s (Crimmins et al. 2011, Part of the Green River Formation and (McMullen 1998, p. 11). The number pp. 324–327). The above studies were because of the consistent soil and type of pollinators differed between done in different areas, Western Europe morphology between sites, we are P. debilis sites (McMullen 1998, p. 27). and California, and looking at different identifying these geologic formations as Fruit set was not limited by inadequate species. We do not have information a physical or biological feature for the numbers of pollinators (McMullen 1998, specific to P. debilis elevational shifts; plant. We also looked at soil type as p. 27). Because pollinators are necessary however, oil shale habitats extend into discussed below in Criteria Used to for successful reproduction of P. debilis, these higher and lower elevations. Identify Critical Habitat but do not we have identified pollinators and their Slope—Penstemon debilis is generally include it here as a physical or associated habitats as a physical or found only on steep slopes (mean of 37 biological feature because it is a biological feature for this plant. percent slope) and between cliff bands component of the soil characteristics Habitats Protected From Disturbance or where the oil shale is constantly shifting already described. and moving downhill (Service 2011a, p. Climate—The average annual Representative of the Historic 2). The plant also can be found on precipitation in the area where Geographical and Ecological relatively flat sites, although nearby Penstemon debilis is found ranges from Distributions of the Species habitats are often steep. In general, the 12 to 18 in (30 to 46 cm) (McMullen Disturbance Regime—Penstemon plant is found on steep, constantly 1998, p. 63). Winters are cold (averaging debilis is found on steep oil shale slopes eroding slopes; therefore, we identify roughly 30 degrees Fahrenheit (°F) (¥1 that are constantly shifting. The plant moderate to steep slopes, generally over degree Celsius (°C)) with snow staying has underground stems (rhizomes) that 15 percent slope, to be a physical or on the ground in flatter areas), and are an adaptation to this constant biological feature for this plant. summers are warmer (averaging roughly shifting (McMullen 1998, p. 58). As the 65 °F (18 °C). Because P. debilis has shale shifts downward, the underground Food, Water, Air, Light, Minerals, or evolved under these climatic stems and clusters of leaves emerge Other Nutritional or Physiological conditions, we have identified suitable downhill. A single plant may actually Requirements precipitation and suitable temperatures appear as many different plants that are Soils—Penstemon debilis is known as physical or biological features for this connected by these underground stems only from oil shale cliffs on the Roan plant. These climatic conditions are (McMullen 1998, p. 58). In sites where Plateau escarpment and was previously likely influenced, in part, by elevation. the soils have stabilized and vegetation described as occurring only on the has encroached, P. debilis has been lost Cover or Shelter Parachute Creek Member of the Green (McMullen 1998, p. 72). Some plants are River Formation (McMullen 1998, p. While Penstemon seeds and seedlings found on soils that have been disturbed 57). Utilizing geologic spatial data, our certainly require ‘‘safe sites’’ for their by humans, such as roadsides. mapping exercises have found that the germination and establishment, these Managing for an appropriate plant also is found on the Lower Part of microclimates are too small to be disturbance type or level can be difficult the Green River Formation (Tweto 1979, considered or managed here as a since we lack research to better quantify pp. 1,4). Populations are generally physical or biological feature for this these measures. For these reasons, we located either directly above or below plant. We do not understand exactly consider these unstable and slow to the geologic feature known as the what physical characteristics constitute moderate levels of constantly shifting Mahogany Ledge (McMullen 1998, p. a safe site other than that they are shale slopes to be a physical or 63). All occupied sites are similar in soil locations where the appropriate biological feature for the species. morphology (form and structure) and conditions for seedling germination and are characterized by a surface layer of growth exist. We believe these features Phacelia submutica small to moderate shale channers (small are encompassed in the ‘‘Plant We have determined that Phacelia flagstones) that shift continually due to Community and Competitive Ability’’ submutica requires the following the steep slopes (McMullen 1998, p. 64). and ‘‘Soils’’ sections discussed above. physical and biological features: Below the channers is a weakly developed calcareous, sandy to loamy Sites for Breeding, Reproduction, or Space for Individual and Population layer, with 40 to 90 percent coarse Rearing (or Development) of Offspring Growth material. Reproduction—Penstemon debilis Plant Community and Competitive Toxic elements in the soil such as requires insect pollinators for Ability—Predominant vegetation arsenic and selenium accumulate in the reproduction and is twice as classifications within the occupied tissues of Penstemon debilis (McMullen reproductively successful if pollen range of Phacelia submutica include 1998, p. 65) and may allow P. debilis to comes from another plant (McMullen clay badlands, mixed salt desert scrub, grow in areas that are more toxic to 1998, pp. 25, 43). Over 40 species of and Artemisia tridentata (big sagebrush) other species, thereby reducing plant pollinators have been collected from P. shrubland, within the greater Pinus competition. Toxic elements in the soil debilis; the primary pollinators include edulis (pinyon)—Juniperus spp. vary between populations. In a 4 Osmia (mason bee) species, (juniper) woodlands type (O’Kane 1987,

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pp. 14–15; Ladyman 2003, pp. 14–16). (Lenoir et al. 2008, pp. 1768–1770), or Based on the information above, we Within these vegetated areas, P. an average of 279 ft (85 m) downward consider the small soil inclusions where submutica is found on sparsely since the 1930s (Crimmins et al. 2011, P. submutica is found that are vegetated barren areas with total plant pp. 324–327). The above studies were characterized by shrink-swell alkaline cover generally less than 10 percent done in different areas, Western Europe clay soils within the Atwell Gulch and (Burt and Spackman 1995, p. 20). On and California, and looking at different Shire members of the Wasatch these barren areas, P. submutica can be species. We do not have information Formation to represent a physical or found alone or in association with other specific to P. submutica elevational biological feature for P. submutica. species. Associated plant species at sites shifts; however, suitable habitat for P. Climate—Phacelia submutica occupied by P. submutica include: The submutica extend into these higher and abundance varies considerably from nonnative Bromus tectorum (cheatgrass) lower elevations. year to year. In 1 year almost no plants and native species Grindelia fastigiata Topography (surface shape)— may emerge at a site, and in another (pointed gumweed), Eriogonum gordonii Phacelia submutica is found on slopes year at the same site, hundreds or even (Gordon buckwheat), Monolepis ranging from almost flat to 42 degrees, thousands of individuals may grow nuttalliana (Nutall povertyweed), and with the average around 14 degrees (Burt and Spackman 1995, p. 24). We do Oenothera caespitosa (tufted evening (Service 2011a, p. 3). Plants are not understand what environmental primrose) (Burt and Spackman 1995, p. generally found on moderately steep factors (temperature, rainfall, or 20; Ladyman 2003, pp. 15–16). Many of slopes, benches, and ridge tops adjacent snowfall) affect these dramatic changes these associated species also are annuals to valley floors (Ladyman 2003, p. 15). in abundance from 1 year to the next, (growing for only 1 year). Because of the The relative position of P. submutica is but it is assumed they are climatic in harshness (heavy clay soils are difficult consistent from site to site; therefore, we nature (Burt and Spackman 1995, p. 24). for plant growth) and sometimes the recognize appropriate topography Wetter years seem to produce more steepness of occupied sites, these areas (suitable slopes, benches and ridge tops, individuals (O’Kane 1987, p. 16). or moderately steep slopes adjacent to are maintained in an early successional However, without the right combination valley floors) as a physical or biological state (Ladyman 2003, p. 18). Therefore, of precipitation and temperature within feature for the plant. the species found in these habitats are a short window of time in the spring, regarded as pioneers that are Food, Water, Air, Light, Minerals, or the species may produce very few continually colonizing these bare areas Other Nutritional or Physiological seedlings or mature plants, sometimes and then dying (O’Kane 1987, p. 15). Requirements for several consecutive years. We Pioneer species are often assumed to be Soils—Phacelia submutica grows only believe it is necessary to conserve poor competitors (Grime 1977, p. 1169). on barren clay soils derived from the habitat across the entire range of the For the reasons discussed above, we Atwell Gulch and Shire members of the species to account for the variation in identify barren clay badlands with less Eocene and Paleocene Wasatch local weather events, to allow for plants than 20 percent cover of other plant geological formation (Donnell 1969, pp. to grow at some sites and not others on species to be a physical or biological M13–M14; O’Kane 1987, p. 10) within an annual basis. Because climatic feature for this plant. We have adjusted the elevation range described above. factors dramatically influence the the relative plant cover upwards, from The Atwell Gulch member is found number of P. submutica individuals that less than 10 percent plant cover, to below the bluish gray Molina member, are produced in a given year, we capture the potential plant cover in and the Shire member is found above identify climate as a physical or moist years when other species may be the Molina member (Decker et al. 2005, biological feature for the plant; however, somewhat more abundant. p. 3). The plant is found in unique, very we recognize that we are unable to Elevation—Known populations of small areas (from 10 to 1,000 ft2 (1 to identify exactly what these climatic Phacelia submutica occur within a 100 m2)), on colorful exposures of factors encompass except that the range of elevations from about 5,000 to chocolate to purplish brown, dark amount of moisture and its timing is 7,150 ft (1,500 to 2,175 m) (Service charcoal gray, and tan clay soils (Burt critical. Climatic data from four weather 2011a, p. 3) on barren clay soils (as and Spackman 1995, pp. 15, 20; stations indicate that average annual described below). Elevation is a key Ladyman 2003, p. 15; Grauch 201, p. 3). precipitation is between 10 to 16 in (25 factor in determining the temperature We do not fully understand why P. and 41 cm), with less precipitation and moisture microclimate of this submutica is limited to the small areas generally falling in June (as well as species. Because plants have not been where it is found, but the plant usually December–February) than other months, identified outside of this elevation band grows on the one unique small spot of and with cold winters (sometimes with and because growing conditions shrink-swell clay that shows a slightly snow cover) and warmer summers frequently change across elevation different texture and color than the (Service 2011b, pp. 1–43, 57–72). gradients, we have identified elevations similar surrounding soils (Burt and Cover or Shelter from 4,600 to 7,450 ft (1,400 to 2,275 m) Spackman 1995, p. 15). Ongoing to be a physical or biological feature for species-specific soil analyses have While Phacelia submutica seeds and this plant. We have extended the found that the alkaline soils (with seedlings certainly require ‘‘safe sites’’ elevation range 328-ft (100-m) upward specific pH ranging from 7 to 8.9) where for their germination and establishment, and downward in an attempt to provide P. submutica are found have higher clay these microclimates are too small to be areas where the plant could migrate, content than nearby unoccupied soils, considered or managed here as a given shifting climates (Callaghan et al. although there is some overlap (Grauch physical or biological feature for this 2004, pp. 418–435; Crimmins et al. 2011, p. 4). The shrink-swell action of plant. We do not understand exactly 2011, pp. 324–327). We consider this these clay soils and the cracks that are what physical characteristics constitute 328-ft (100-m) value to be a conservative formed upon drying appear essential to a safe site other than that they are allowance since studies on climate maintenance of the species’ seed bank locations where the appropriate change elevational shifts have found since the cracks capture the seeds and conditions for seedling germination and more dramatic changes even in the last maintain the seed bank on site (O’Kane growth exist. We believe these features century: 95 ft (29 m) upward per decade 1988, p. 462; Ladyman 2003, pp. 16–17). are encompassed in the ‘‘Plant

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Community and Competitive Ability’’ shrink-swell cycle of the soil, altering iii. Clearings within the Ponderosa and ‘‘Soils’’ sections discussed above. hydrologic properties of the soil that pine/Rocky Mountain juniper and Utah may subsequently prevent P. submutica juniper/oak communities. Sites for Breeding, Reproduction, or germination. These disturbances can (iv) Habitat for pollinators. Rearing (or Development) of Offspring include off-highway vehicle (OHV) use, a. Pollinator ground and twig nesting Reproduction and Seed Banks—We livestock and wild ungulate grazing, and areas. Nesting and foraging habitats do not yet understand the pollination activities associated with oil and gas suitable for a wide array of pollinators and seed dispersal mechanisms of development. Managing for an and their life history and nesting Phacelia submutica. Pollinators have appropriate disturbance type or level requirements. A mosaic of native plant not been observed visiting the flowers of can be difficult since we lack research communities and habitat types generally P. submutica. Currently, it is believed to better quantify these measures. For would provide for this diversity. that pollinators may not be required for the reasons discussed above, we identify b. Connectivity between areas reproduction because of the minute an environment free from moderate to allowing pollinators to move from one flower size, a lack of obvious heavy disturbances when soils are dry site to the next within each plant pollinators, and because the and free from all disturbances when population. reproductive parts are hidden within soils are wet to be a physical or c. Availability of other floral the petals. We also do not understand biological feature for P. submutica. resources, such as other flowering plant how seeds are dispersed. Seed banks are species that provide nectar and pollen established where seeds fall into the Primary Constituent Elements for for pollinators. Grass species do not cracks of shrink-swell clay (O’Kane Ipomopsis polyantha, Penstemon provide resources for pollinators. 1988, p. 462). We recognize that habitat debilis, and Phacelia submutica d. A 3,280-ft (1,000-m) area beyond conducive for successful reproduction is Under the Act and its implementing occupied habitat to conserve the a physical or biological feature for P. regulations, we are required to identify pollinators essential for plant submutica. However, we do not the physical or biological features reproduction. understand more specifically what essential to the conservation of (v) Appropriate disturbance regime. features are important for this Ipomopsis polyantha, Penstemon a. Appropriate disturbance levels— reproduction. In addition, seed banks debilis, and Phacelia submutica in areas Light to moderate, or intermittent or are especially important for annual occupied at the time of listing, focusing discontinuous disturbance. species that may not emerge when on the features’ PCEs. We consider PCEs b. Naturally maintained disturbances climatic conditions are unfavorable to be the elements of physical or through soil erosion, or human- (Meyer et al. 2005, pp. 15–16, 21; Levine biological features that provide for a maintained disturbances, that can et al. 2008, pp. 795–806). For this species’ life-history processes and are include light grazing, occasional ground reason, we identify maintaining the seed essential to the conservation of the clearing, and other disturbances that are bank, through moist years where the species. not severe or continual. plant successfully reproduces at regular With this designation of critical intervals as a physical or biological Ipomopsis polyantha habitat, we identify the physical and feature for P. submutica. We lack further Based on our current knowledge of biological features essential to the information on how long-lived seeds are the physical or biological features and conservation of the species through the in the seed bank and at what intervals habitat characteristics required to identification of the PCEs sufficient to the seed bank needs to be replenished sustain the species’ life-history support the life-history processes of the to provide specifics but are hopeful that processes, we determine that the PCEs species. Two units designated as critical ongoing research will assist in specific to Ipomopsis polyantha are: habitat are currently occupied by answering some of these questions. (i) Mancos shale soils. Ipomopsis polyantha and contain the Habitats Protected from Disturbance or (ii) Elevation and climate. Elevations PCEs to support the life-history needs of Representative of the Historic from 6,400 to 8,100 ft (1,950 to 2,475 m) the species. Because two populations do not offer Geographical and Ecological and current climatic conditions similar adequate redundancy for the survival Distributions of the Species to those that historically occurred around Pagosa Springs, Colorado. and recovery of Ipomopsis polyantha, Disturbance Regime—The steeper clay Climatic conditions include suitable we have determined that unoccupied barrens where Phacelia submutica is precipitation; cold, dry springs; and areas are essential for the conservation sometimes found experience some winter snow. of the species. Two additional units erosion, and the shrinking and swelling (iii) Plant Community. designated as critical habitat are of clay soils creates a continuous a. Suitable native plant communities currently unoccupied by I. polyantha. disturbance (Ladyman 2003, p. 16). (as described in b. below) with small We consider these units essential for the Phacelia submutica has adapted to these (less than 100 ft2 (10 m2) or larger conservation of the species, as discussed light to moderate disturbances, although (several hectares or acres) barren areas below under ‘‘Special Management occasionally plants are pushed out of with less than 20 percent plant cover in Considerations.’’ In addition, we the shrinking or swelling soils and die the actual barren areas. determine that the unoccupied units (O’Kane 1987, p. 20). Clay soils are b. Appropriate native plant contain the PCEs necessary to support relatively stable when dry but are communities, preferably with plant the life-history needs of the species. extremely vulnerable to disturbances communities reflective of historical when wet (Rengasmy et al. 1984, p. 63). community composition, or altered Penstemon debilis Phacelia submutica has evolved with habitats which still contain components Based on our current knowledge of some light natural disturbances, mostly of native plant communities. These the physical or biological features and in the form of erosion and the shrink- plant communities include: habitat characteristics required to swell process. Heavy disturbances, and i. Barren shales, sustain the species’ life-history even light disturbances when soils are ii. Open montane grassland (primarily processes, we determine that the PCEs wet, could impact the species and its Arizona fescue) understory at the edges specific to Penstemon debilis are: seed bank. Soil compaction alters the of open Ponderosa pine, or (i) Suitable Soils and Geology.

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a. Parachute Member and the Lower currently unoccupied by P. debilis. occur, as Phacelia submutica may still part of the Green River Formation. Currently occupied areas do not be found there. b. Appropriate soil morphology adequately provide for the conservation c. Appropriate plant communities characterized by a surface layer of small of the species, because of a lack of within the greater pinyon–juniper to moderate shale channers (small redundancy. We consider these units woodlands that include: flagstones) that shift continually due to essential for the conservation of the i. Clay badlands within the mixed salt the steep slopes and below a weakly species, as discussed below under desert scrub, or developed calcareous, sandy to loamy ‘‘Special Management Considerations.’’ ii. Clay badlands within big sagebrush layer with 40 to 90 percent coarse In addition, we determine the shrublands. material. unoccupied units contain the PCEs (v) Maintenance of the Seed Bank and (ii) Elevation and climate. Elevations necessary to support the life-history Appropriate Disturbance Levels. from 5,250 to 9,600 ft (1,600 to 2,920 m). needs of the species. a. Within suitable soil and geologies, Climatic conditions similar to those of undisturbed areas where seed banks are the Mahogany Bench, including suitable Phacelia submutica left undamaged. precipitation and temperatures. Based on our current knowledge of b. Areas with light disturbance when (iii) Plant Community. the physical or biological features and dry and no disturbance when wet. a. Barren areas with less than 10 habitat characteristics required to Phacelia submutica has evolved with percent plant cover. sustain the species’ life-history some light natural disturbances, b. Presence of other oil shale processes, we determine that the PCEs including erosional and shrink-swell endemics, which can include: Mentzelia specific to Phacelia submutica are: processes. However, human rhizomata, Thalictrum heliophilum, (i) Suitable Soils and Geology. disturbances that are either heavy or Astragalus lutosus, Lesquerella a. Atwell Gulch and Shire members of light when soils are wet could impact parviflora, Penstemon osterhoutii, and the Wasatch formation. the species and its seed bank. Because Festuca dasyclada. b. Within these larger formations, we do not understand how the seed c. Presence of Penstemon caespitosa small areas (from 10 to 1,000 ft2 (1 to bank may respond to disturbances, more for support of pollinators and 100 m2)) on colorful exposures of heavily disturbed areas should be connectivity between sites. chocolate to purplish brown, light to evaluated, over the course of several (iv) Habitat for pollinators. dark charcoal gray, and tan clay soils. years, for the species’ presence. a. Pollinator ground, twig, and mud These small areas are slightly different With this designation of critical nesting areas. Nesting and foraging in texture and color than the similar habitat, we identify the physical and habitats suitable for a wide array of surrounding soils. Occupied sites are biological features essential to the pollinators and their life-history and characterized by alkaline (pH range conservation of the species through the nesting requirements. A mosaic of from 7 to 8.9) soils with higher clay identification of the PCEs sufficient to native plant communities and habitat content than similar nearby unoccupied support the life-history processes of the types generally would provide for this soils. species. All units and subunits diversity (see Plant Community above). c. Clay soils that shrink and swell designated as critical habitat are These habitats can include areas outside dramatically upon drying and wetting currently occupied by Phacelia of the soils identified in Suitable Soils and are likely important in the submutica and contain the PCEs and Geology. maintenance of the seed bank. sufficient to support the life-history b. Connectivity between areas (ii) Topography. Moderately steep needs of the species. allowing pollinators to move from one slopes, benches, and ridge tops adjacent Special Management Considerations or population to the next within units. to valley floors. Occupied slopes range Protections c. Availability of other floral from 2 to 42 degrees with an average of resources, such as other flowering plant 14 degrees. When designating critical habitat, we species that provide nectar and pollen (iii) Elevation and climate. assess whether the specific areas within for pollinators. Grass species do not a. Elevations from 4,600 to 7,450 ft the geographical area occupied by the provide resources for pollinators. (1,400 to 2,275 m). species at the time of listing contain d. A 3,280-ft (1,000-m) area beyond b. Climatic conditions similar to those features that are essential to the occupied habitat to conserve the around DeBeque, Colorado, including conservation of the species and which pollinators essential for plant suitable precipitation and temperatures. may require special management reproduction. Annual fluctuations in moisture (and considerations or protection. All areas (v) High levels of natural disturbance. probably temperature) greatly influences designated as critical habitat will a. Very little or no soil formation. the number of Phacelia submutica require some level of management to b. Slow to moderate, but constant, individuals that grow in a given year address the current and future threats to downward motion of the oil shale that and are thus able to set seed and the physical and biological features maintains the habitat in an early replenish the seed bank. essential to the conservation of the three successional state. (iv) Plant Community. plants. In all units, special management With this designation of critical a. Small (from 10 to 1,000 ft2 (1 to 100 will be required to ensure that the habitat, we identify the physical and m2)) barren areas with less than 20 habitat is able to provide for the growth biological features essential to the percent plant cover in the actual barren and reproduction of the species. conservation of the species through the areas. A detailed discussion of threats to identification of the PCEs sufficient to b. Presence of appropriate associated Ipomopsis polyantha, Penstemon support the life-history processes of the species that can include (but are not debilis, and Phacelia submutica and species. Two units designated as critical limited to) the natives Grindelia their habitat can be found in the final habitat are currently occupied by fastigiata, Eriogonum gordonii, listing rule (76 FR 45054). The primary Penstemon debilis and contain the PCEs Monolepis nuttalliana, and Oenothera threats impacting the physical and to support the life-history needs of the caespitosa. Some presence of, or even biological features essential to the species. Two additional units domination by, invasive nonnative conservation of I. polyantha, P. debilis, designated as critical habitat are species, such as Bromus tectorum, may and P. submutica that may require

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special management considerations or threats. Extremely low numbers and a nonnative invasive species including protection within CHUs include, but are highly restricted geographic range make Bromus tectorum and Halogeton not limited to, the following: Penstemon debilis particularly glomeratus (halogeton); and inadequacy susceptible to becoming endangered in of existing regulatory mechanisms (76 Ipomopsis polyantha the foreseeable future. Threats to the FR 45054). The features essential to the species and its habitat include energy Special management considerations conservation of this species (plant development, road maintenance, and or protections are required within community and competitive ability, inadequacy of existing regulatory critical habitat areas to address these elevation, soils, climate, reproduction, mechanisms (76 FR 45054). threats. Management activities that and disturbance regime) may require Special management considerations could ameliorate these threats include special management considerations or or protections are required within (but are not limited to): Development of protection to reduce threats. Ipomopsis critical habitat areas to address these regulations and agreements to balance polyantha’s highly restricted soil threats. Management activities that conservation with energy development requirements and geographic range could ameliorate these threats include and minimize its effects in areas where make it particularly susceptible to (but are not limited to): The the species resides; the establishment of extinction at any time from commercial, introduction of new Penstemon debilis additional protection areas that provide municipal, and residential populations; the establishment of greater protections for the species; development; associated road and permanent conservation easements or minimization of OHV use; placement of utility improvements and maintenance; the acquisition of land to protect the roads and utility lines away from the heavy livestock use; inadequacy of species on private lands; the species and its habitat; minimization of existing regulatory mechanisms; continuation and adequate management livestock use or other human-caused fragmented habitat; and prolonged of P. debilis through the CNA disturbances that disturb the soil or drought (76 FR 45054). Over 86 percent Agreement with Oxy (see Exclusions seeds; and the minimization of habitat of the species’ occupied habitat is on section below); regulations and/or fragmentation. private land with no limits on agreements that balance conservation These management activities would development (Service 2011c, p. 2). with energy development in areas that protect the PCEs for the species by Special management considerations would affect the species and its preventing the loss of habitat and or protections are required within pollinators; the designation of protected individuals, protecting the plant’s critical habitat areas to address these areas with specific provisions and habitat and soils, and managing for threats. Management activities that protections for the plant; the appropriate levels of disturbance. could ameliorate these threats include elimination or avoidance of activities (but are not limited to): Introducing new Criteria Used To Identify Critical that alter the morphology and status of Habitat Ipomopsis polyantha populations; the shale slopes; and avoidance of establishing permanent conservation placing roads in habitats that would As required by section 4(b)(2) of the easements or acquiring land to protect affect the plant or its pollinators. Act, we used the best scientific data the species on private lands; developing These management activities would available to designate critical habitat. zoning regulations that could serve to protect the PCEs for the species by We reviewed available information protect the species; establishing preventing the loss of habitat and pertaining to the habitat requirements of conservation agreements on private and individuals, maintaining or restoring this species. In accordance with the Act Federal lands to identify and reduce plant communities and natural levels of and its implementing regulation at 50 threats to the species and its features; competition, protecting the plant’s CFR 424.12(e), we considered whether eliminating the use of smooth brome reproduction by protecting its designating additional areas—outside and other competitive species in areas pollinators, and managing for those currently occupied as well as occupied by the species; promoting and appropriate levels and types of those occupied at the time of listing— encouraging habitat restoration; disturbance. are necessary to ensure the conservation of the species. We are designating developing other regulatory Phacelia submutica mechanisms to further protect the critical habitat in areas within the species; placing roads and utility lines The features essential to the geographical area occupied by away from the species; minimizing conservation of this species (plant Ipomopsis polyantha, Penstemon heavy use of habitat by livestock; and community and competitive ability, debilis, and Phacelia submutica at the minimizing habitat fragmentation. elevation, topography, soils, climate, time of listing in 2011. We also are These management activities would reproduction and seed bank, and designating specific areas outside the protect the PCEs for the species by disturbance regime) may require special geographical area occupied by I. preventing the loss of habitat and management considerations or polyantha and P. debilis at the time of individuals, maintaining or restoring protection to reduce threats. listing because we have determined that plant communities and natural levels of Specifically, the clay soils on which such areas are essential for the competition, protecting the plant’s Phacelia submutica are found are conservation of the species. All units are reproduction by protecting its relatively stable when dry but are designated based on sufficient elements pollinators, and managing for extremely vulnerable to disturbances of physical and biological features being appropriate levels of disturbance. when wet. The current range of P. present to support Ipomopsis polyantha, submutica is subject to human-caused Penstemon debilis, and Phacelia Penstemon debilis modifications from natural gas submutica life-history processes. The features essential to the exploration and production with Small populations and plant species conservation of this species (plant associated expansion of pipelines, with limited distributions, like those of community and competitive ability, roads, and utilities; development within Ipomopsis polyantha and Penstemon elevation, slope, soils, climate, the Westwide Energy Corridor; debilis, are vulnerable to relatively reproduction, and disturbance regime) increased access to the habitat by OHVs; minor environmental disturbances may require special management soil and seed disturbance by livestock (Given 1994, pp. 66–76; Frankham 2005, considerations or protection to reduce and other human-caused disturbances; pp. 135–136), and are subject to the loss

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of genetic diversity from genetic drift, affect survival and recovery (Aguilar et polyantha’’ below). For Phacelia the random loss of genes, and al. 2006, pp. 968–980; Aguilar et al. submutica, we believe that the occupied inbreeding (Ellstrand and Elam 1993, 2008, pp. 5177–5188; Potts et al. 2010, habitat provides for both resiliency and pp. 217–237; Leimu et al. 2006, pp. pp. 345–352). Fragments are often not of redundancy and that with conservation 942–952). Plant populations with sufficient size to support the natural of these areas, the species should be lowered genetic diversity are more diversity prevalent in an area, and thus conserved and sustained into the future. prone to local extinction (Barrett and exhibit a decline in biodiversity (Fahrig For I. polyantha, there are only two Kohn 1991, pp. 4, 28). Smaller plant 2003, pp. 487–515). Fragmentation known populations, both with few or no populations generally have lower effects are especially prevalent in protections in place (low resiliency). For genetic diversity, and lower genetic systems where multiple generations adequate resiliency, we believe it is diversity may in turn lead to even have elapsed since the fragmentation necessary for the conservation and smaller populations by decreasing the occurred (Aguilar et al. 2008, p. 5177). recovery of I. polyantha that additional species’ ability to adapt, thereby Habitat fragmentation has been shown populations with further protections be increasing the probability of population to disrupt plant-pollinator interactions established. Therefore, we have extinction (Newman and Pilson 1997, p. and predator-prey interactions (Steffan- identified two unoccupied areas as 360; Palstra and Ruzzante 2008, pp. Dewenter and Tscharntke 1999, p. 432– designated CHUs for I. polyantha. For P. 3428–3447). Because of the dangers 440; Aguilar et al. 2006, pp. 968–980; debilis, there are only approximately associated with small populations or Eckert et al. 2010, pp. 35–43), alter seed 4,000 known individuals (low limited distributions, the recovery of germination percentages (Menges 1991, redundancy), all within 2 concentrated many rare plant species includes the pp. 158–164), affect recruitment (Santos areas (low resiliency). For adequate creation of new sites or reintroductions and Telleria 1997, pp. 181–187; redundancy and resiliency, we believe it to ameliorate these effects. Quesada et al. 2003, pp. 400–406), and is necessary for conservation and Genetic analysis of Ipomopsis result in lowered fruit set (Burd 1994, recovery that additional populations of polyantha has not been conducted; pp. 83–139; Cunningham 2000, pp. P. debilis be established. Therefore, we therefore, we do not understand the 1149–1152; Eckert et al. 2010, p. 38). have identified two unoccupied areas as genetic diversity of this species. Given In general, habitat fragmentation designated CHUs for P. debilis. the species’ limited extent and presence causes habitat loss, habitat degradation, in only two populations, we expect the habitat isolation, changes in species Ipomopsis polyantha species may be suffering from low composition, changes in species In accordance with the Act and its genetic diversity, or could in the future. interactions, increased edge effects, and implementing regulation at 50 CFR Genetic research on Penstemon reduced habitat connectivity (Fahrig 424.12(e), we consider whether debilis, based on neutral genetic 2003, pp. 487–515; Fisher and designating additional areas—outside markers, has found that there is more Lindenmayer 2007, pp. 265–280). These those currently occupied as well as genetic diversity in larger populations effects are more prevalent in arid those occupied at the time of listing— than smaller populations, that the ecosystems with low native vegetation are necessary to ensure the conservation northeastern populations are more cover (Fisher and Lindenmayer 2007, p. of the species. For Ipomopsis polyantha, closely related to one another than to 272). Habitat fragments are often we are designating critical habitat in the southwestern populations, that functionally smaller than they appear areas within the geographical area inbreeding is common within each because edge effects (such as increased occupied by the species at the time of population, and that genetic diversity nonnative invasive species or wind listing in 2011. We also are designating for the species is low when compared speeds) impact the available habitat specific areas outside the geographical with other species of plants with similar within the fragment (Lienert and Fischer area occupied by the species at the time life-history traits (Wolfe 2010, p. 1). The 2003, p. 597). of listing, because such areas are plant is partially clonal, which likely Shaffer and Stein (2000) identify a essential for the conservation of the explains the lowered genetic diversity methodology for conserving imperiled species. and further reduces the actual species known as the three Rs: Occupied critical habitat was population size. Small population sizes Representation, resiliency, and identified by delineating all known sites with few individuals are a problem for redundancy. Representation, or within a population (CNHP 2012a, pp. this species, as supported by this preserving some of everything, means 1, 6, 11), placing a minimum convex research. conserving not just a species but its polygon around the perimeter of all When designating critical habitat for a associated plant communities, sites, and then adding an additional species, we consider future recovery pollinators, and pollinator habitats. 3,280-ft (1,000-m) area for pollinator efforts and conservation of the species. Resiliency and redundancy ensure there habitat. The distance that pollinators Realizing that the current occupied is enough of a species so it can survive can travel is significant to plants habitat is not enough for the into the future. Resiliency means including Ipomopsis polyantha because conservation and recovery of Ipomopsis ensuring that the habitat is adequate for pollen transfer and seed dispersal are polyantha and Penstemon debilis, we a species and its representative the only mechanisms for genetic worked with species’ experts to identify components. Redundancy ensures an exchange. Both pollen and seed unoccupied habitat essential for the adequate number of sites and dispersal can vary widely by plant conservation of these two species. The individuals. This methodology has been species (Ellstrand 2003, p. 1164). In justification for why unoccupied habitat widely accepted as a reasonable general, pollinators will focus on small is essential to the conservation of these conservation strategy (Tear et al. 2005, areas where floral resources are species and methodology used to p. 841). abundant; however, occasional longer identify the best unoccupied areas for We have addressed representation distance pollination will occur, albeit consideration for inclusion is described through our PCEs for each species (as infrequently. No research has been below. discussed above) and by providing conducted on flight distances of I. Habitat fragmentation can have habitat for pollinators of Ipomopsis polyantha’s pollinators. Therefore, we negative effects on biological polyantha and Penstemon debilis (as rely on general pollinator travel populations, especially rare plants, and discussed further under ‘‘Ipomopsis distances described in the literature.

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Typically, pollinators fly distances blooming times overlap to provide p. 1). As little overlap occurred where that are in relation to their body sizes, flowers for foraging throughout the Mancos shale soils and Federal lands with smaller pollinators flying shorter seasons; (2) nesting and egg-laying sites, intersected with habitat supporting the distances than larger pollinators with appropriate nesting materials; (3) appropriate plant communities for (Greenleaf et al. 2007, pp. 589–596). sheltered, undisturbed places for future Ipomopsis polyantha Pollinators will, if possible, forage close hibernation and overwintering; and (4) introductions, habitat is somewhat to the nest. If a pollinator can fly long a landscape free of poisonous chemicals limited in suitable areas. Upon distances, pollen transfer also is (Shepherd et al. 2003, pp. 49–50). discussions with local species and area possible across these distances. The Encompassing a diversity of habitats experts as well as land managers, we largest pollinators of Ipomopsis and vegetation types, which our identified two areas on USFS lands as polyantha are bumblebee species pollinator area does, will encourage a potential recovery or introduction areas (Bombus spp.). In one study, the buff- diversity of pollinators. for I. polyantha. These two areas tailed bumblebee (Bombus terrestris) A recovery plan has not yet been include the O’Neal Hill Special flew a maximum distance of 2,037 ft written for Ipomopsis polyantha. Botanical Area and Eight Mile Mesa, (621 m) (Osborne et al. 1999, pp. 524– However, as described above, with only both within the San Juan National 526). The bumblebee-pollinated plant two known populations of I. polyantha, Forest. These areas contain the PCEs species, Scabiosa columbaria (dove both of which are located largely on sufficient to support the life-history pincushions), experienced decreased private lands with few protections, we needs of the species, including Mancos pollen flow at a patch isolation distance expect that future recovery efforts will shale soils and appropriate plant of 82 ft (25 m), and little to no pollen include efforts to improve resiliency by communities, and when added to the transfer when patches were isolated by increasing the number of populations; occupied areas would provide sufficient 656 ft (200 m) (Velterop 2000, p. 65). In therefore, we also are designating resiliency, redundancy, and the Colorado subalpine, most marked unoccupied habitat. We determined that representation for the conservation of bumblebees were found within 328 ft not all potential habitat (Mancos shale the species. (100 m), and never further than 3,280 ft soil layer near the town of Pagosa We delineated the CHU boundaries (1,000 m) from the location where they Springs) for I. polyantha was essential for Ipomopsis polyantha using the were originally located (Elliott 2009, p. to the conservation of the species. In following steps: 752). In mixed farmland, two different keeping with section 3(5)(C) of the Act, (1) In determining what areas were bumblebees foraged at distances less which states that critical habitat may occupied by Ipomopsis polyantha, we than 1,024 and 2,050 ft (312 and 625 m), not include the entire geographical area used data on all known populations respectively (Darvill et al. 2004, pp. which can be occupied by the species, collected by the CNHP (O’Kane 1985, 471–478). Another study found that except in certain circumstances maps; Lyon 2002, p. 3; Lyon 2005, pp. buff-tailed bumblebee workers (resource determined by the Secretary, we have 1–7; CNHP 2008, pp. 1–8; CNHP 2012b, collectors) were recaptured while designated only a portion of the pp. 1–7), BLM (Brinton 2010, pp. 1–7), foraging on super-abundant resources at potential habitat for the species. USFS (Brinton 2010, pp. 1–7), the distances of 1.1 mi (1.75 km) from the To assist us in determining which Service (Mayo 2005, pp. 1–35; Mayo nest (Walther-Hellwig and Frankl 2000, specific unoccupied areas may be and Glenne 2009, spatial data; Langton p. 303). essential to the conservation of the 2010b, spatial data), research efforts Foraging studies can be biased in that species and considered for inclusion, (Collins 1995, maps), and consulting long-distance foraging bouts occur less we not only evaluated the biological firms (JGB Consulting 2005, pp. 2–7; frequently and so are less likely to be contribution of an area, but also Ecosphere Environmental Services detected in experiments (Darvill et al. evaluated the conservation potential of 2012, pp. 1–28) to map specific 2004, p. 476). Models have predicted the area through the overlay of a locations of I. polyantha. These data that bumblebees can forage from 3 to 6 designation of critical habitat. While we were input into ArcMap 9.3.1 and 10. mi (5 to 10 km) and still return with a recognize that there is an education Based on criteria developed by the net profit in energy (Dukas and value to designating an area as critical CNHP, sites were classified into discrete Edelstein-Keshet 1998, p. 127; Cresswell habitat, the more prevailing benefit is populations if they were within 2 mi (3 et al. 2000, p. 251). The maximum consultation under section 7 of the Act km) of each other and were not distance from which bumblebees have on activities that may affect critical separated by unsuitable habitat (CNHP returned in homing experiments is habitat on Federal lands or where a 2012a, p. 1). almost 6 mi (10 km) (Goulson and Stout Federal action may exist. Thus, in (2) For currently occupied CHUs, we 2001, p. 105–111). evaluating the potential conservation delineated critical habitat areas by These studies suggest variability in value of an unoccupied area for creating minimum convex polygons the distances over which pollen transfer inclusion in critical habitat, we first around each population and adding a may occur and over which bumblebee focused on lands that are biologically 3,280-ft (1,000–m) wide area for species can travel. Ipomopsis polyantha important to the species and then pollinator habitat as previously sites within populations can be considered which of those lands were described. separated by more than 3,280 ft (1,000 under Federal ownership or likely to (3) For currently unoccupied CHUs, m), making conservation of these large have a Federal action occur on them. If we identified two areas where the pollinators especially important for the inclusion of areas that met those Mancos shale (Tweto 1979, spatial data) genetic exchange between sites. In the criteria were not sufficient to conserve intersected with Federal ownership interest of protecting I. polyantha’s the species, we then evaluated other (COMaP version 8—Theobald et al. pollinators, we have identified a 3,280- specific areas on private lands that were 2010, spatial data). We delineated these ft (1,000-m) wide pollinator area. This not likely to have a Federal action on areas by following the Federal land area has the added benefit of providing them. management boundary and identifying more habitat for I. polyantha potential Unoccupied critical habitat was suitable habitats based on species and expansion in the future. Pollinators identified by overlaying the Mancos area experts’ input and aerial imagery. generally need the following: (1) A shale soil layer around Pagosa Springs Our reasoning for identifying diversity of native plants whose with Federal ownership (Service 2011d, unoccupied units is described above.

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We are designating as critical habitat individuals and sites. Therefore, we also Federal action may exist. Thus, in lands that we have determined are are designating unoccupied habitat as evaluating the potential conservation occupied at the time of listing and critical habitat. Unoccupied critical value of an unoccupied area for contain sufficient physical or biological habitat was delineated by identifying inclusion in critical habitat, we first features to support life-history processes potential habitat on large contiguous focused on lands that are biologically essential for the conservation of areas of Federal ownership (see Number important to the species and then Ipomopsis polyantha and lands outside 3 below) (Service 2011d, p. 2). We considered which of those lands were of the geographical area occupied at the determined that not all potential habitat under Federal ownership or likely to time of listing that we have determined (as defined below) for P. debilis was have a Federal action occur on them. If are essential for the conservation of I. essential to the conservation of the the inclusion of areas that met those polyantha. species, and in keeping with section criteria were not sufficient to conserve We designated four units based on 3(5)(C) of the Act, which states that the species, we then evaluated other sufficient elements of physical or critical habitat may not include the specific areas on private lands that were biological features being present to entire geographical area which can be not likely to have a Federal action on support I. polyantha life processes. All occupied by the species, except in them. Upon discussions with local units contain all of the identified certain circumstances determined by the species and area experts, as well as land elements of physical or biological Secretary, we have designated only a managers, we identified two areas on features and supported multiple life portion of the potential habitat for the BLM lands as potential recovery or processes. species. introduction areas for Penstemon When we overlaid our rough suitable Penstemon debilis debilis. These two areas include Brush habitat layer (described in further detail Mountain and Cow Ridge, both In accordance with the Act and its in step 3 below) for Penstemon debilis managed by BLM. These areas contain implementing regulations at 50 CFR with private and Federal lands, we the PCEs sufficient to support the life- 424.12(e), we consider whether mapped 16,862 ac (6,824 ha) of suitable history needs of the species, including designating additional areas—outside habitat, 68 percent on private lands and oil shale soils and appropriate plant those currently occupied as well as 32 percent on Federal (BLM) lands with communities. those occupied at the time of listing— a spotty distribution measuring roughly We delineated the CHU boundaries are necessary to ensure the conservation 39 mi (63 km) from east to west and 17 for Penstemon debilis using the of the species. We are designating mi (28 km) from north to south. Of the following steps: critical habitat in areas within the 5,323 ac (2,154 ha) on BLM lands, 1,515 (1) In determining what areas were geographical area occupied by the ac (613 ha) fell within occupied units occupied by Penstemon debilis, we used species at the time of listing in 2011. We (Units 3 and 4), leaving 3,808 ac (1,541 data for all the known populations also are designating specific areas ha) of suitable habitat (23 percent of the collected by the CNHP (O’Kane and outside the geographical area occupied total suitable habitat) on BLM lands. In Anderson 1986, p. 1; Spackman et al. by the species at the time of listing, looking at the remaining BLM 1997, p. 108; CNHP 2012b, pp. 8–19, because such areas are essential for the ownership, two obvious large patches of spatial data), the BLM (Scheck and conservation of the species. suitable habitat were evident, which is Kohls 1997, p. 3; DeYoung 2010a, Occupied critical habitat was how we identified the unoccupied spatial data; DeYoung 2010b; DeYoung identified by delineating all known sites units. These unoccupied units contain et al. 2010, p. 1), CNAP (CNAP 2006, within a population (CNHP 2012a, p. 5), 1,358 ac (550 ha) of suitable habitat, spatial data), the Service (Ewing 2009, placing a minimum convex polygon representing 40 percent of the remaining spatial data), and a consulting firm around the perimeter of all these sites, suitable habitat acreage on BLM lands. (Graham 2009, spatial data) to map and then adding a 3,280-ft (1,000-m) Additional suitable habitat on BLM populations using ArcMap 9.3.1 and 10. area for pollinator habitat as previously lands was much more fragmented and These locations were classified into described for Ipomopsis polyantha. Like spotty, not comprising the same discrete element occurrences I. polyantha, Penstemon debilis’ largest contiguous blocks as the unoccupied (populations) by CNHP (CNHP 2012a, p. pollinators are the bumblebee species units, and thus, of lower value for 6). (Bombus sp.) (discussed above under I. recovery; these areas were not included (2) We delineated preliminary units polyantha). in the critical habitat designation. The by creating minimum convex polygons To allow for future seed dispersal and four CHUs span an area roughly 30 mi around each population and adding a population growth, occupied areas were (49 km) from east to west and 11 mi (17 3,280-ft (1,000-m) wide area for expanded into adjacent habitats km) from north to south, representing a pollinator habitat as described above. containing the PCEs. This roughly good portion of the range of the suitable (3) We then identified potential doubled the size of these occupied habitat we mapped. habitat (Service 2011d, p. 2) in ArcMap units. In doing this, we also have To assist us in determining which 9.3.1 by intersecting the following provided more potential habitat for specific areas may be essential to the criteria: The Parachute Creek Member future recovery and introduction efforts, conservation of the species and and the Lower part of the Green River and given the difficulties of surveying considered for inclusion here, we not Formation geological formations (Tweto cliff areas, have allowed for the only evaluated the biological 1979, spatial data), with elevations possibility that there are more contribution of an area, but also between 6,561 to 9,350 ft (2,000 and populations of Penstemon debilis than evaluated the conservation potential of 2,850 m), with suitable soil types that we know. the area through the overlay of a included five soil series (Irigul-Starman A recovery plan has not yet been designation of critical habitat. While we channery loams, Happle-Rock outcrop written for Penstemon debilis. With recognize that there is an education association, Rock outcrop-Torriorthents only 4,100 known individuals of P. value to designating an area as critical complex, Torriorthents-Camborthids- debilis concentrated in 2 areas, we habitat, the more prevailing benefit is Rock outcrop complex, and Tosca conclude that future recovery efforts consultation under section 7 of the Act channery loam), which represented 89 will necessitate actions to improve on activities that may affect critical percent of all known Penstemon debilis redundancy by increasing the number of habitat on Federal lands or where a sites (Natural Resource Conservation

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Service 2008, spatial data; Service Phacelia submutica These locations were classified into 2011a, p. 2), and with the ‘‘Rocky In accordance with the Act and its discrete element occurrences or Mountain cliff and canyon’’ landcover implementing regulation at 50 CFR populations if they were within 1.2 mi classification (NatureServe 2004, spatial 424.12(e), we consider whether (2 km) and were not separated by data). We chose the ‘‘Rocky Mountain designating additional areas—outside unsuitable habitat, based on criteria cliff and canyon’’ landcover those currently occupied as well as developed by CNHP (CNHP 2012a, p. classification because 75 percent of all those occupied at the time of listing— 11). Then, we used 2009 aerial imagery the known P. debilis locations fall are necessary to ensure the conservation (National Agricultural Inventory Project within this mapping unit (and all sites of the species. We are not designating 2009, spatial data) to look at all sites that were considered historically outside are either on artificially created any areas outside the geographical area occupied because they had not been habitats or are directly below this occupied by the species because revisited in the last 20 years. Based on classification where both oil shale occupied areas are sufficient for the our analysis, we determined all substrate and P. debilis seed dispersal conservation of the species. historically occupied sites were suitable down drainage constantly occurs). We Occupied critical habitat was habitat and considered these sites still did not include the lower elevations identified by delineating all known sites in existence and occupied at the time of currently occupied by P. debilis in our within a population (CNHP 2012a, p. listing. minimum convex polygon edges that we 11), and placing a minimum convex (2) We delineated critical habitat areas used for delineating pollinator habitat polygon around the perimeter of all by creating minimum convex polygons (step 2) or in our potential habitat these sites. We then added a 328-ft (100- around each population and adding a analysis (step 3), because there are few m) wide area to account for indirect 328-ft (100-m) wide area to account for plants in these more ephemeral wash- effects from factors such as edge effects indirect effects as described out habitat types and because these from roads, nonnative species, dust immediately above. unusual habitat types do not seem to impacts, and others (as discussed (3) We then modified these critical represent the species’ typical habitat above). habitat polygon boundaries to exclude requirements. However, it should be Phacelia submutica has a large unsuitable habitat as defined by a noted that these unusual sites are still enough range (sufficient representation potential habitat model (Decker et al. included within the boundaries of Unit and resiliency), enough populations 2005, p. 9). From this modeling 3 (as delineated by step 2). (sufficient redundancy), and enough exercise, we chose the more restrictive individuals (sufficient redundancy) that of the two habitat models (the envelope (4) From this potential habitat we felt that the occupied habitat alone analysis (as delineated in step 3), we model) to further refine our critical would be adequate for the future habitat polygons. This model was took the two continuous bands of conservation and recovery of the potential habitat that include the areas developed by comparing occupied areas species. Therefore, no unoccupied with environmental variables, such as where Penstemon debilis is currently habitat was included in this critical found and added them to our existing elevation, slope, precipitation, habitat designation. temperature, geology, soil type, and polygons, including pollinator habitat We delineated the CHU boundaries vegetation type. The environmental (as delineated in step 2). We did this by for Phacelia submutica using the variables with the highest predictive again creating a minimum convex following steps: abilities influence the potential habitat polygon. This condensed all known (1) In determining what areas were the model then identifies. populations into two currently occupied occupied by Phacelia submutica, we We are designating as critical habitat CHUs (Units 3 and 4). used data on all known locations lands that we have determined are (5) For currently unoccupied CHUs, collected by CNHP (CNHP 1982, pp. 1– occupied at the time of listing and we identified two areas where our 17; Burt and Carston 1995, pp. 10–14; contain sufficient physical or biological potential habitat was intersected with Burt and Spackman 1995, p. 3; features to support life-history processes Federal ownership (COMaP version 8— Spackman and Fayette 1996, p. 5; Lyon essential for the conservation of Theobald et al. 2010, spatial data). Our 2008, spatial data; Lyon and Huggins Phacelia submutica. reasoning for identifying unoccupied 2009a, p. 3; Lyon and Huggins 2009b, p. Nine units were designated based on units is described above. 3; Lyon 2010, spatial data; CNHP 2012b, sufficient elements of physical or spatial data), the Colorado Native Plant We are designating as critical habitat biological features being present to Society (Colorado Native Plant Society support P. submutica life processes. All lands that we have determined were 1982, pp. 1–9), the BLM (DeYoung units contain all of the identified occupied at the time of listing and 2010a, spatial data; DeYoung 2010b, elements of physical or biological contain sufficient physical or biological spatial data; Diekman 2010, spatial features and support multiple life features to support life-history processes data), USFS (Johnston 2010, spatial processes. essential for the conservation of data; Potter 2010, spatial data; Proctor When determining critical habitat Penstemon debilis, and lands outside of 2010, spatial data; Kirkpatrick 2011, p. boundaries in this final rule, we made the geographical area occupied at the 1), CNAP (Wenger 2008; 2009; 2010, every effort to avoid including time of listing that we have determined spatial data), the Service (Ewing and developed areas such as lands covered are essential for the conservation of P. Glenne 2009, spatial data; Langton by buildings, pavement, and other debilis. 2010a, spatial data; Langton 2011, structures because such lands lack Four units were designated based on spatial data), and consulting firms (Ellis physical and biological features for sufficient elements of physical or and Hackney 1982, pp. 7–8; Klish 2004, Penstemon debilis and Phacelia biological features being present to pp. 1–2; WestWater Engineering 2007b, submutica. The scale of the maps we support P. debilis life processes. All spatial data; WestWater Engineering prepared under the parameters for units contained all of the identified 2007a, spatial data; Westwater publication within the Code of Federal elements of physical or biological Engineering 2010, maps and spatial Regulations may not reflect the features and supported multiple life data) to map specific locations of P. exclusion of such developed lands. Any processes. submutica using ArcMap 9.3.1 and 10. such lands inadvertently left inside

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critical habitat boundaries shown on the polyantha, because the plant is often The critical habitat areas described maps of this final rule have been found growing on partially developed below constitute our best assessment at excluded by text in the rule and are not sites, around buildings, or immediately this time of areas that meet the designated as critical habitat. Therefore, adjacent to roads, we did not exclude definition of critical habitat. Those four a Federal action involving these lands buildings, pavement, and other units are: (1) Dyke, (2) O’Neal Hill will not trigger section 7 consultation structures. Special Botanical Area, (3) Pagosa with respect to critical habitat and the Final Critical Habitat Designation Springs, and (4) Eight Mile Mesa. Table requirement to avoid destruction and 1 shows the occupancy of the units. adverse modification unless the specific Ipomopsis polyantha action would affect the physical or biological features in the adjacent We are designating four units as critical habitat. In the case of Ipomopsis critical habitat for Ipomopsis polyantha.

TABLE 1—OCCUPANCY OF Ipomopsis polyantha BY DESIGNATED CRITICAL HABITAT UNITS

Currently occupied? and Unit occupied at time of listing?

1. Dyke ...... Yes. 2. O’Neal Hill Special Botanical Area ...... No. 3. Pagosa Springs ...... Yes. 4. Eight Mile Mesa ...... No.

The approximate area of each CHU is shown in Table 2.

TABLE 2—DESIGNATED CRITICAL HABITAT UNITS (CHUS) FOR Ipomopsis Polyantha [Area estimates reflect all land within CHU boundaries]

Critical habitat unit Land ownership Size of unit

1. Dyke ...... BLM ...... 42 ac (17 ha). Private ...... 1,415 ac (573 ha). Archuleta County (County Road right-of-ways (ROWs)) 5 ac (2 ha). Colorado Dept. of Transportation ...... 13 ac (5 ha).

Total for Dyke Unit ...... 1,475 ac (597 ha). 2. O’Neal Hill Special Botanical Unit ...... USFS–San Juan National Forest ...... 564 ac (228 ha). 3. Pagosa Springs ...... Town of Pagosa Springs ...... 599 ac (242 ha). Colorado Division of Wildlife (CDOW) ...... 28 ac (11 ha). Private ...... 5,560 ac (2,251 ha). Archuleta County (County Road ROWs) ...... 18 ac (7 ha). Archuleta County (County Land) ...... 92 ac (37 ha). Colorado Dept. of Transportation (Highway ROWs) ...... 50 ac (20 ha). State Land Board (SLB) ...... 110 ac (44 ha).

Total for Pagosa Spring Unit ...... 6,456 ac (2,613 ha). 4. Eight Mile Mesa ...... USFS–San Juan National Forest ...... 1,146 ac (464 ha).

Total ...... 9,641 ac (3,902 ha).

Note: Area sizes may not sum due to private lands, 1 percent is within species, suitable elevational ranges from rounding. highway ROWs. Three percent is on 6,720 to 7,285 ft (2,048 to 2,220 m), We present brief descriptions of all Federal land managed by the BLM, Mancos shale soils, suitable climate, units, and reasons why they meet the through the Pagosa Springs Field Office pollinators and habitat for these definition of critical habitat for of the San Juan Public Lands Center. pollinators, and areas where the correct Ipomopsis polyantha, below. The units This Unit is currently occupied. disturbance regime is present. Lands are listed in order geographically west This Unit currently has all the within this Unit are largely agricultural to east. physical and biological features although some housing is present essential to the conservation of the Unit 1: Dyke within the Unit. A large hunting ranch species including a collection of all also falls within this Unit. While these Unit 1, the Dyke Unit, consists of three communities (barren shales, open lands currently have the physical and 1,475 ac (597 ha) of Federal and private montane grassland (primarily Arizona biological features essential to the lands. The Unit is located at the fescue) understory at the edges of open conservation of Ipomopsis polyantha, junction of U.S. Hwy 160 and Cat Creek Ponderosa pine, or clearings within the because of a lack of cohesive Road (County Road 700) near the Ponderosa pine and Rocky Mountain management and protections, special historic town of Dyke in Archuleta juniper and Utah juniper and oak management will be required to County, Colorado. Ninety-seven percent communities), pockets of shale with maintain these features in this Unit. of this Unit is on private lands; of these little to no competition from other

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Threats to Ipomopsis polyantha in protected through the special botanical Office of the San Juan National Forest. this Unit include highway maintenance area, the area would make an ideal site This Unit is located roughly 6.5 mi (10.5 and disturbance (several hundred plants for future introductions of I. polyantha. km) south of the intersections of have been documented along Highway Therefore, we have identified this Unit Highways 160 and 84 in Pagosa Springs, 160 (CNHP 2012b, p. 5)), grazing, as critical habitat for I. polyantha. Colorado, and on the western side of agricultural use, Bromus inermis Highway 84. This Unit is not currently Unit 3: Pagosa Springs encroachment, potential development, occupied. We reduced this Unit from and a new road that was constructed Unit 3, the Pagosa Springs Unit, is the our proposed critical habitat designation through the I. polyantha population. largest of the four Ipomopsis polyantha in our notice of availability (77 FR CHUs and consists of 6,456 ac (2,613 ha) 18161) so that isolated patches, Unit 2: O’Neal Hill Special Botanical of municipal, State, and private lands. separated from the rest of the Unit by Unit The Unit is located at the junction of roads, would no longer be included Unit 2, the O’Neal Hill Botanical Unit Highways 160 and 84, south along (Holtrop 2011, p. 1). consists of 564 ac (228 ha) of USFS land Highway 84, west along County Road This Unit currently has all the managed by the San Juan National 19, and east along Mill Creek Road. physical and biological features Forest. The Unit is north of Pagosa Ownership of the land in Unit 3 is essential to the conservation of the Springs, roughly 13 mi (21 km) north divided as follows: 86.1 percent is species including a collection of all along Piedra Road. Roughly 49 percent under private ownership, 9.2 percent is three plant communities, pockets of of this Unit (279 ac (113 ha)) falls within owned by the Town of Pagosa Springs, shale with little to no competition from the O’Neal Hill Special Botanical Area 1.7 percent is owned and operated by other species, suitable elevational that was designated to protect another the Colorado State Land Board (SLB), ranges from 7,320 to 7,858 ft (2,230 to Mancos shale endemic, Lesquerella 0.7 percent falls within the Colorado 2,395 m), Mancos shale soils, suitable pruinosa (Pagosa bladderpod). Because Department of Transportation (CDOT) climate, habitat for pollinators, and L. pruinosa is sometimes found growing ROWs, 0.4 percent is found on CDOW areas where the correct disturbance with Ipomopsis polyantha, we believe lands, 0.2 percent is located on regime is present. Because there are so the site has high potential for Archuleta County ROWs, and 1.4 few Mancos shale sites on Federal introduction of I. polyantha. This Unit percent is located on a parcel newly lands, and because this site has an array is not currently occupied. We reduced acquired by Archuleta County. This of habitat types, it provides the best this Unit from our proposed critical Unit is currently occupied and contains potential area for introduction of habitat designation in our notice of the majority of I. polyantha individuals. Ipomopsis polyantha in the future. availability (77 FR 18161) so that the This Unit currently has all the Threats to Ipomopsis polyantha in thick pasture grass and riparian areas in physical and biological features this Unit include a road running the bottomlands that do not contain essential to the conservation of the through the site, recreational use, many of the PCEs for I. polyantha would species, including a collection of all horseback riding, dispersed camping no longer be included (Holtrop 2011, p. three plant communities, pockets of and hunting, and firewood gathering. 1). shale with little to no competition from The road is a threat because it generates This Unit currently has all the other species, suitable elevational fugitive dust and pollutants, provides a physical and biological features ranges from 6,960 to 7,724 ft (2,120 to source for nonnative invasive plants, essential to the conservation of the 2,350 m), Mancos shale soils, suitable causes habitat fragmentation, increases species, including a collection of all climate, pollinators and habitat for these edge effects and drying, and may limit three plant communities, pockets of pollinators, and areas where the correct pollinator movement, among other shale with little to no competition from disturbance regime is present. Lands reasons. The Unit has some dense other species, suitable elevational within this Unit fall into a wide array Ponderosa pine stands, and several ranges from 7,640 to 8,360 ft (2,330 to of land management scenarios, small wildfires, which are actively 2,550 m), Mancos shale soils, suitable including agricultural use, junkyards, suppressed, occur every year. Benefiting climate, habitat for pollinators (although urban areas, small residential lots, and the designation, there is a vacant grazing we do not know if Ipomopsis polyantha large 30- to 40-ac (12- to 16-ha) allotment at this Unit, and noxious pollinators are found here), and areas residential parcels. While these lands weeds are being actively controlled where the correct disturbance regime is currently have the physical and (Brinton 2011, p. 1). present. Because of the presence of biological features essential to the Ipomopsis polyantha is known from these features, we believe this may make conservation of Ipomopsis polyantha, only two populations, both with few or a good introduction area for I. polyantha because of a lack of cohesive no protections (little resilience). For in the future and is needed to ensure management and protections, special adequate resiliency and protection we conservation of the species. management will be required to believe it is necessary for survival and Threats to Ipomopsis polyantha in maintain these features in this Unit. recovery that additional populations this Unit include road maintenance and Since 86 percent of this Unit is under with further protections be established. disturbance, low levels of recreation, private ownership and there is no land Therefore, we have identified this Unit including hunting, deer and elk use, and under Federal ownership, the primary and one other unoccupied area as a utility corridor and related threat to the species in this Unit is critical habitat for I. polyantha. maintenance (Brinton 2011, p. 1). agricultural or urban development. Penstemon debilis Ipomopsis polyantha is known from Other threats include highway ROW only two populations, both with few or disturbances, Bromus inermis and other We are designating four units as no protections (little resilience). For nonnative invasive species, excessive critical habitat for Penstemon debilis. adequate resiliency and protection we livestock grazing, and mowing. The critical habitat areas described believe it is necessary for survival and below constitute our best assessment at recovery that additional populations Unit 4: Eight Mile Mesa this time of areas that meet the with further protections be established. Unit 4, Eight Mile Mesa, consists of definition of critical habitat. Those four Because this area receives low levels of 1,146 ac (464 ha) of USFS lands that are units are: (1) Brush Mountain, (2) Cow use and because it is already partially managed by the Pagosa Springs Field Ridge, (3) Mount Callahan, and (4)

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Anvil Points. Table 3 shows the occupancy of the units.

TABLE 3—OCCUPANCY OF Penstemon Debilis BY DESIGNATED CRITICAL HABITAT UNITS

Currently occupied? and Unit occupied at time of listing?

1. Brush Mountain ...... No. 2. Cow Ridge ...... No. 3. Mount Callahan ...... Yes. 4. Anvil Points ...... Yes.

TABLE 4—DESIGNATED CRITICAL HABITAT UNITS (CHUS) FOR Penstemon Debilis [Area estimates reflect all land within CHU boundaries]

Land ownership by type Critical habitat unit Size of unit Federal Private

1. Brush Mountain ...... 1,437 ac (582 ha) ...... 0 ac (0 ha) ...... 1,437 ac (582 ha). 2. Cow Ridge ...... 4,819 ac (1,950 ha) ... 0 ac (0 ha) ...... 4,819 ac (1,950 ha). 3. Mount Callahan ...... 4,232 ac (1,713 ha) ... 137 ac (55 ha) ...... 4,369 ac (1,768 ha). 4. Anvil Points ...... 3,424 ac (1,386 ha) ... 1,461 ac (591 ha) ...... 4,885 ac (1,977 ha).

Total ...... 13,912 ac (5,631 ha) 1,598 ac (646 ha) ...... 15,510 ac (6,277 ha). Note: Area sizes may not sum due to rounding.

We present brief descriptions of all development and associated activities. debilis in the future and is needed to units, and reasons why they meet the Penstemon debilis consists of only 4,100 ensure conservation of the species. definition of critical habitat for known individuals (little redundancy), The primary threat to Penstemon Penstemon debilis, below. The units are and all occur within 2 concentrated debilis in this Unit is energy listed in order geographically west to areas (little resilience). For adequate development and associated activities. east, and north to south. redundancy and resiliency, we believe it Penstemon debilis consists of only 4,100 known individuals (little redundancy) Unit 1: Brush Mountain is necessary for survival and recovery that additional populations be and all within 2 concentrated areas (low Unit 1, the Brush Mountain Unit, established. Therefore, we have resilience). For adequate redundancy consists of 1,437 ac (582 ha) of federally identified this Unit as critical habitat for and resiliency, we believe it is necessary owned lands, managed by BLM through P. debilis. for survival and recovery that additional the Grand Junction Field Office. It is populations be established. Therefore, located approximately 16 mi (26 km) Unit 2: Cow Ridge we have identified this Unit as a CHU northwest of the town of DeBeque in Unit 2, the Cow Ridge Unit, is 4,819 for P. debilis. Garfield County, Colorado. It is ac (1,950 ha) of federally owned lands northwest of the intersection of Roan Unit 3: Mount Callahan managed by BLM through the Grand Creek Road (County Road 204) and Unit 3, the Mount Callahan Unit, Junction Field Office. It is located Brush Creek Road (County Road 209). consists of 4,369 ac (1,768 ha) of Federal approximately 8 mi (13 km) northwest This Unit is not currently occupied. and private land. It is located This Unit has all the physical and of the town of DeBeque in Garfield approximately 2 mi (3 km) west of the biological features essential to the County, Colorado, and north of Dry Fork town of Parachute on the south-facing conservation of the species, including Road. This Unit is not currently slopes of Mount Callahan and westward the Rocky Mountain Cliff and Canyon occupied. along the cliffs of the Roan Plateau. plant community (NatureServe 2004, This Unit has all the physical and Fifty-five percent of Unit 3 is managed spatial data) with less than 10 percent biological features essential to the by the BLM under the management of plant cover, suitable elevational ranges conservation of the species, including two field offices: 80 Percent of these of 6,234 to 8,222 ft (1,900 to 2,506 m), the Rocky Mountain Cliff and Canyon Federal lands are managed by the outcrops of the Parachute Creek Member plant community (NatureServe 2004, Colorado River Valley Field Office and of the Green River Formation, steep spatial data) with less than 10 percent 20 percent are managed by the Grand slopes of these soil outcrops that lend to cover, suitable elevational ranges of Junction Field Office. the appropriate disturbance levels, 6,273 to 8,284 ft (1,912 to 2,525 m), Oxy has been a partner in the pollinator habitat, and a climate with outcrops of the Parachute Creek Member conservation of Penstemon debilis since between 12 to 18 in. (30 and 46 cm) in of the Green River Formation, steep 1987. We have excluded all Oxy lands annual rainfall and winter snow. slopes of these soil outcrops that lend to based on: (1) This continuing Because of the presence of these the appropriate disturbance levels, partnership, (2) existing CNA features, we believe this may make a habitat for pollinators, and a climate Agreements (674 ac (273 ha)) for two good introduction area for Penstemon with between 12 to 18 in (30 and 46 cm) CNAs (the Mount Callahan and Mount debilis in the future and is needed to in annual rainfall and winter snow. Callahan Saddle), (3) commitments to ensure conservation of the species. Because of the presence of these create a third CNA (the Logan Wash The primary threat to Penstemon features, we believe this may make a Mine Natural Area) totaling 82 ac (33 debilis in this Unit is energy good introduction area for Penstemon ha), (4) already-implemented and

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further commitments to develop Best the Parachute Creek Member of the pollinators, steep slopes of these soil Management Practices for the CNAs as Green River Formation, suitable outcrops that lend to the appropriate well as other adjacent lands, and pollinators and habitat for these disturbance levels, and a climate with (5) commitments on Oxy lands to pollinators, steep slopes of these soil between 12 to 18 in (30 and 46 cm) in conserve newly discovered P. debilis outcrops that lend to the appropriate annual rainfall and winter snow. populations with more than 75 disturbance levels, and a climate with The primary threat to Penstemon individuals. This exclusion totals 3,350 between 12 to 18 in (30 and 46 cm) in debilis and its habitat in this Unit is ac (1,356 ha). These exclusions are annual rainfall and winter snow. energy development and associated discussed in further detail below under The primary threat to Penstemon activities. This Unit falls within the Exclusions. Three percent of this Unit debilis and its habitat in this Unit is boundary of the BLM’s Roan Plateau falls on private lands. This Unit is energy development and associated RMP. The RMP has two lease currently occupied. activities. stipulations that directly address Once Oxy lands were excluded, four endangered, threatened and candidate parcels (two BLM and two private) of Unit 4: Anvil Points plants. A no surface occupancy lease land remained along the northern edge Unit 4, the Anvil Points Unit, consists stipulation (NSO–12) protects occupied of the CHU, as proposed. We have of 4,885 ac (1,977 ha) of Federal and elected not to include three (both BLM private land. It is located approximately habitat and adjacent potential habitat and one of the two private parcels) of 1 mi (2 km) north of the town of Rulison from ground disturbing activities, with these four parcels in our critical habitat in Garfield County, Colorado. Seventy narrow exceptions. A controlled surface designation because: (1) They would be percent of this Unit is managed by the use stipulation (CSU–12) protects isolated from the rest of Unit 3; (2) they BLM, Colorado River Valley Field special status plant species and plant contain no suitable habitat for Office. Twenty-three percent of the Unit communities by authorizing BLM to Penstemon debilis (only pollinator (1,102 ac (446 ha)) is within several impose special design, operation, habitat); (3) the pollinator and habitat potential BLM Areas of Critical mitigation and reclamation measures, protection measures on Oxy lands will Environmental Concern (ACECs). If including relocation of ground provide adequate protections for the these become ACECs, they would have disturbing activities by more than 200 pollinators on their lands, making these several stipulations to protect meters, with some exceptions. Special three parcels less important; and Penstemon debilis, particularly from oil management considerations and (4) they are distant (at least 2,133 ft (650 and gas development. These areas are protections are thus contemplated. m)) from occupied and suitable habitat; discussed further in the proposed (75 Phacelia submutica and (5) we believe they are not FR 35732; June 23, 2010) and final necessary for the conservation of the listing rules (76 FR 45054). Thirty We are designating nine units as species. The remaining private parcel percent of this Unit is on private lands. critical habitat for Phacelia submutica. (137 ac (55 ha)) is closer to occupied This Unit is currently occupied. The critical habitat areas described habitat, contains suitable habitat, and, This Unit currently has all the below constitute our best assessment at therefore, is included in our critical physical and biological features this time of areas that meet the habitat designation. essential to the conservation of definition of critical habitat. The nine This Unit currently has all the Penstemon debilis, including the Rocky units we designate as critical habitat are: physical and biological features Mountain Cliff and Canyon plant (1) Sulphur Gulch, (2) Pyramid Rock, essential to the conservation of community (NatureServe 2004, spatial (3) Roan Creek, (4) DeBeque, (5) Mount Penstemon debilis, including the Rocky data) with less than 10 percent plant Logan, (6) Ashmead Draw, (7) Baugh Mountain Cliff and Canyon plant cover, suitable elevational ranges of Reservoir, (8) Horsethief Mountain, and community (NatureServe 2004, spatial 6,318 to 9,288 ft (1,926 to 2,831 m), (9) Anderson Gulch. All units are data) with less than 10 percent cover, outcrops of the Parachute Creek Member currently occupied and were occupied suitable elevational ranges of 5,413 to of the Green River Formation, suitable at the time of listing. The approximate 8,809 ft (1,650 to 2,685 m), outcrops of pollinators and habitat for these area of each CHU is shown in Table 5.

TABLE 5—DESIGNATED CRITICAL HABITAT UNITS (CHUS) FOR Phacelia submutica [Area estimates reflect all land within CHU boundaries.]

Land ownership by type Unit No./unit name Size of unit Federal State Private

1. Sulphur Gulch ...... 1,046 ac (423 ha) ...... 0 ac (0 ha) ...... 0 ac (0 ha) ...... 1,046 ac (423 ha) 2. Pyramid Rock ...... 15,429 ac (6,244 ha) 0 ac (0 ha) ...... 1,892 ac (766 ha) ...... 17,321 ac (7,010 ha) 3. Roan Creek ...... 2 ac (1 ha) ...... 0 ac (0 ha) ...... 52 ac (21 ha) ...... 54 ac (22 ha) 4. DeBeque ...... 401 ac (162 ha) ...... 0 ac (0 ha) ...... 129 ac (52 ha) ...... 530 ac (215 ha) 5. Mount Logan ...... 242 ac (98 ha) ...... 0 ac (0 ha) ...... 35 ac (14 ha) ...... 277 ac (112 ha) 6. Ashmead Draw ...... 1,110 ac (449 ha) ...... 0 ac (0 ha) ...... 166 ac (67 ha) ...... 1,276 ac (516 ha) 7. Baugh Reservoir ...... 169 ac (68 ha) ...... 0 ac (0 ha) ...... 261 ac (106 ha) ...... 430 ac (174 ha) 8. Horsethief Mountain ...... 3,614 ac (1,463 ha) ... 0 ac (0 ha) ...... 594 ac (240 ha) ...... 4,209 ac (1,703 ha) 9. Anderson Gulch ...... 0 ac (0 ha) ...... 192 ac (78 ha) ...... 149 ac (60 ha) ...... 341 ac (138 ha)

Total ...... 22,013 ac (8,908 ha) 192 ac (78 ha) ...... 3,278 ac (1,327 ha) ... 25,484 ac (10,313 ha) Note: Area sizes may not sum due to rounding.

We present brief descriptions of all definition of critical habitat for Phacelia submutica, below. The units are listed units, and reasons why they meet the in order geographically west to east.

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Unit 1: Sulphur Gulch and shrink-swell alkaline clay soils Unit 4: DeBeque Unit 1, the Sulphur Gulch Unit, within the Atwell Gulch and Shire Unit 4, the DeBeque Unit, consists of consists of 1,046 ac (423 ha) of federally members of the Wasatch Formation. 530 ac (215 ha) of Federal and private owned land. The Unit is located Ninety-four percent of this Unit is lands in Mesa County, Colorado. This approximately 7.7 mi (12.5 km) managed as a grazing allotment on BLM Unit is located 0.25 mi (0.4 km) north southwest of the town of DeBeque in and private lands. Additionally, 11 of DeBeque between Roan Creek Road Mesa County, Colorado. This Unit is percent of this Unit is managed as an and Cemetery Road. Seventy-six percent managed by BLM, through the Grand active pipeline ROW. While these lands of this Unit is managed by BLM through Junction Field Office. This Unit is currently have the physical and the Grand Junction Field Office. This currently occupied. biological features essential to the Unit is currently occupied. This Unit currently has all the conservation of Phacelia submutica, This Unit currently has all the physical and biological features because of a lack of cohesive physical and biological features essential to the conservation of the management and protections, special essential to the conservation of the species including barren clay badlands management will be required to species including barren clay badlands with less than 20 percent plant/ maintain these features in this Unit. with less than 20 percent plant/ vegetation cover, suitable elevational Threats to Phacelia submutica and its vegetation cover, suitable elevational ranges of 5,480 to 6,320 ft (1,670 to habitat in this Unit include energy ranges of 5,180 to 5,400 ft (1,579 to 1,926 m), appropriate topography, and development, recreation (especially 1,646 m), the appropriate topography, shrink-swell alkaline clay soils within OHV use), livestock and wild ungulate and shrink-swell alkaline clay soils the Atwell Gulch and Shire members of grazing and use, and nonnative invasive within the Atwell Gulch and Shire the Wasatch Formation. All lands species including Bromus tectorum and members of the Wasatch Formation. within this Unit are leased as grazing Halogeton glomeratus. The Westwide While these lands currently have the allotments, and less than 1 percent is Energy corridor runs through this Unit. physical and biological features managed as an active pipeline ROW by The corridor covers almost 10 percent of essential to the conservation of Phacelia the BLM. While these lands currently this Unit (Service 2011c, p. 9). submutica, because of a lack of cohesive have the physical and biological management and protections, special features essential to the conservation of Unit 3: Roan Creek management will be required to Phacelia submutica, because of a lack of maintain these features in this Unit. cohesive management and protections, Unit 3, the Roan Creek Unit, consists Threats to Phacelia submutica and its special management will be required to of 54 ac (22 ha) of federally and habitat in this Unit include energy maintain these features in this Unit. privately owned lands in Garfield development, residential development, Threats to Phacelia submutica and its County, Colorado. The Unit is located recreation (especially OHV use), habitat in this Unit include energy 3.3 mi (5.4 km) north of the town of livestock and wild ungulate grazing and development, recreation (especially DeBeque and for 1.7 mi (2.7 km) along use, and nonnative invasive species OHV use), domestic and wild ungulate both sides of County Road 299. Ninety- including Bromus tectorum and grazing and use, and nonnative invasive seven percent of this Unit is privately Halogeton glomeratus. Since 24 percent species, such as Bromus tectorum. owned. Three percent of this Unit is of the Unit is privately owned and managed by BLM through the Grand borders the north of the town of Unit 2: Pyramid Rock Junction Field Office. This Unit is DeBeque, this Unit is threatened by Unit 2, the Pyramid Rock Unit, is the currently occupied. potential urban or agricultural largest Unit we are designating and This Unit currently has all the development. The Westwide Energy consists of 17,321 ac (7,010 ha) of physical and biological features corridor runs through this Unit. The federally and privately owned lands in essential to the conservation of the corridor covers almost 66 percent of this Mesa and Garfield Counties, Colorado. species including barren clay badlands Unit (Service 2011c, p. 9). This Unit is approximately 1.6 mi (2.6 with less than 20 percent cover, suitable Unit 5: Mount Logan km) west of the town of DeBeque. The elevational ranges of 5,320 to 5,420 ft eastern boundary borders Roan Creek, Unit 5, the Mount Logan Unit, (1,622 to 1,652 m), the appropriate and Dry Fork Creek runs through the consists of 277 ac (112 ha) of Federal topography, and shrink-swell alkaline northern quarter of the Unit. Eighty-nine and private lands in Garfield County, clay soils within the Atwell Gulch and percent is managed by BLM through the Colorado. The Unit is located 2.7 mi (4.4 Shire members of the Wasatch Grand Junction Field Office, and 11 km) north, northeast of the town of Formation. The entire Unit is within a percent is under private ownership. DeBeque, Colorado, and 0.5 mi (0.8 km) grazing allotment. While these lands Three percent of this Unit is within the west of Interstate 70. Eighty-eight currently have the physical and Pyramid Rock Natural Area and percent of this Unit is managed by BLM biological features essential to the Pyramid Rock ACEC that was through the Grand Junction Field Office. conservation of Phacelia submutica, designated, in part, to protect Phacelia The remainder of this Unit is privately because of a lack of cohesive submutica, as discussed in the proposed owned. This Unit is currently occupied. (75 FR 35739) and final listing rules (76 management and protections, special This Unit currently has all the FR 45054). This Unit is currently management will be required to physical and biological features occupied. maintain these features in this Unit. essential to the conservation of the This Unit currently has all the Threats to Phacelia submutica and its species including barren clay badlands physical and biological features habitat in this Unit include recreation with less than 20 percent plant/ essential to the conservation of the (especially OHV use), livestock and vegetation cover, suitable elevational species including barren clay badlands wild ungulate grazing and use, ranges of 4,960 to 5,575 ft (1,512 to with less than 20 percent plant/ nonnative invasive species including 1,699 m), the appropriate topography, vegetation cover, suitable elevational Bromus tectorum and Halogeton and shrink-swell alkaline clay soils ranges of 4,960 to 6,840 ft (1,512 to glomeratus, and a lack of protections on within the Atwell Gulch and Shire 2,085 m), the appropriate topography, private lands. members of the Wasatch Formation.

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Eighty-eight percent of this Unit is species, including Bromus tectorum and Uncompahgre National Forest, and 14 managed as a grazing allotment by BLM, Halogeton glomeratus. The Westwide percent is on private lands. This Unit is and 53 percent is managed as an active Energy corridor runs through this Unit. currently occupied. pipeline ROW. An access road runs The entire Unit is within the Westwide This Unit currently has all the through the Unit connecting several oil Energy corridor, and 88 percent is physical and biological features wells and associated infrastructure. within several grazing allotments. essential to the conservation of the While these lands currently have the species, including barren clay badlands Unit 7: Baugh Reservoir physical and biological features with less than 20 percent plant/ essential to the conservation of Phacelia Unit 7, the Baugh Reservoir Unit, vegetation cover, a suitable elevational submutica, because of a lack of cohesive consists of 430 ac (174 ha) of Federal range of 5,320 to 6,720 ft (1,622 to 2,048 management and protections, special and private lands in Mesa County, m), the appropriate topography, and management will be required to Colorado. The Unit is located 6 mi (10 shrink-swell alkaline clay soils within maintain these features in this Unit. km) south of DeBeque, Colorado, near the Atwell Gulch and Shire members of Threats to Phacelia submutica and its Kimball Mesa and Horse Canyon Road. the Wasatch Formation. While these habitat in this Unit include energy Thirty-nine percent is managed by BLM lands currently have the physical and development, recreation (especially through the Grand Junction Field Office, biological features essential to the OHV use), livestock and wild ungulate and the remaining 61 percent is on conservation of Phacelia submutica, grazing and use, and nonnative invasive private lands. This Unit is currently because of a lack of cohesive species, including Bromus tectorum and occupied. We slightly increased the size management and protections, special Halogeton glomeratus. of this Unit from our proposed critical management will be required to habitat designation in our notice of maintain these features in this Unit. A Unit 6: Ashmead Draw availability (77 FR 18162) to include portion of the site on USFS lands is Unit 6, the Ashmead Draw Unit, sites that were revisited and more within a proposed Research Natural consists of 1,276 ac (516 ha) of Federal accurately mapped during the spring of Area. and private lands in Mesa County, 2011 (Service 2011e, pp. 5–8). Threats to Phacelia submutica and its Colorado. The Unit is located 1.5 mi (2.5 This Unit currently has all the habitat in this Unit include energy km) southeast of the town of DeBeque, physical and biological features development, recreation (especially Colorado, and east of 45.5 Road essential to the conservation of the OHV use), livestock and wild ungulate (DeBeque Cut-off Road). Eighty-seven species, including barren clay badlands grazing and use, and nonnative invasive percent of this Unit is managed by BLM with less than 20 percent plant/ species, including Bromus tectorum and through the Grand Junction Field Office, vegetation cover, a suitable elevational Halogeton glomeratus. the remainder is private lands. This range of 5,400 to 5,700 ft (1,646 to 1,737 Unit is currently occupied. We slightly m), the appropriate topography, and Unit 9: Anderson Gulch increased the size of this Unit from our shrink-swell alkaline clay soils within Unit 9, the Anderson Gulch Unit, proposed critical habitat designation in the Atwell Gulch and Shire members of consists of 341 ac (138 ha) of State and our notice of availability (77 FR 18162) the Wasatch Formation. An access road private lands in Mesa County, Colorado. to include sites that were revisited and runs through the Unit, close to the It is located 11 mi (17 km) southeast of more accurately mapped during the occurrence of Phacelia submutica. DeBeque, Colorado, and 3.5 mi (5.5 km) spring of 2011 (Service 2011e, pp. 1–3). While these lands currently have the north of the town of Molina, Colorado. This Unit currently has all the physical and biological features Within the Unit, 56 percent of the lands physical and biological features essential to the conservation of P. are managed by CDOW, within the essential to the conservation of the submutica, because of a lack of cohesive Plateau Creek State Wildlife Area, and species including barren clay badlands management and protections, special 44 percent is private. This Unit is with less than 20 percent plant/ management will be required to currently occupied. We slightly vegetation cover, suitable elevational maintain these features in this Unit. increased the size of this Unit from our ranges of 4,940 to 5,808 ft (1,506 to Threats to Phacelia submutica and its proposed critical habitat designation in 1,770 m), the appropriate topography, habitat in this Unit include energy our notice of availability (77 FR 18162) and shrink-swell alkaline clay soils development, recreation, livestock and to include sites that were revisited and within the Atwell Gulch and Shire wild ungulate grazing and use, and more accurately mapped during the members of the Wasatch Formation. A nonnative invasive species including spring of 2011 (CNHP 2012b, spatial network of access roads runs through Bromus tectorum and Halogeton data). the Unit. Eighty-eight percent of this glomeratus. The Westwide Energy This Unit currently has all the Unit is within a BLM grazing allotment, corridor runs through this Unit. The physical and biological features and 84 percent is within the Grand entire Unit is within the Westwide essential to the conservation of the Junction Field Office’s designated Energy corridor and one grazing species, including barren clay badlands energy corridor. Thirty percent of the allotment. with less than 20 percent plant/ Unit is managed as an active pipeline vegetation cover, a suitable elevational ROW. While these lands currently have Unit 8: Horsethief Mountain range of 5,860 to 6,040 ft (1,786 to 1,841 the physical and biological features Unit 8, the Horsethief Mountain Unit, m), the appropriate topography, and essential to the conservation of Phacelia consists of 4,209 ac (1,703 ha) of Federal shrink-swell alkaline clay soils within submutica, because of a lack of cohesive and private lands in Mesa County, the Atwell Gulch and Shire members of management and protections, special Colorado. It is located approximately 3.5 the Wasatch Formation. Forty-two management will be required to mi (5.6 km) southeast of DeBeque, percent of the Unit is a pending pipeline maintain these features in this Unit. Colorado, and along the eastern side of ROW. While these lands currently have Threats to Phacelia submutica and its Sunnyside Road (V Road). Thirty-four the physical and biological features habitat in this Unit include energy percent is managed by BLM through the essential to the conservation of Phacelia development, recreation (especially Grand Junction Field Office, 29 percent submutica, special management may be OHV use), livestock and wild ungulate by the White River National Forest, 23 required to maintain these features in grazing and use, and nonnative invasive percent by the Grand Mesa this Unit.

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Threats to Phacelia submutica and its that are not federally funded or Application of the ‘‘Adverse habitat in this Unit include energy authorized, do not require section 7 Modification’’ Standard development, recreation (especially consultation. The key factor related to the adverse from OHV use), livestock and wild As a result of section 7 consultation, modification determination is whether, ungulate grazing and use, and nonnative we document compliance with the with implementation of the proposed invasive species, including Bromus requirements of section 7(a)(2) through Federal action, the affected critical tectorum and Halogeton glomeratus. our issuance of: habitat would continue to serve its (1) A concurrence letter for Federal intended conservation role for the Effects of Critical Habitat Designation actions that may affect, but are not species. Activities that may destroy or likely to adversely affect, listed species Section 7 Consultation adversely modify critical habitat are or critical habitat; or Section 7(a)(2) of the Act requires (2) A biological opinion for Federal those that alter the physical or Federal agencies, including the Service, actions that may affect, and are likely to biological features to an extent that to ensure that any action they fund, adversely affect, listed species or critical appreciably reduces the conservation authorize, or carry out is not likely to habitat. value of critical habitat for Ipomopsis jeopardize the continued existence of When we issue a biological opinion polyantha, Penstemon debilis, and any endangered species or threatened concluding that a project is likely to Phacelia submutica. As discussed species or result in the destruction or jeopardize the continued existence of a above, the role of critical habitat is to adverse modification of designated listed species and/or destroy or support the life-history needs of the critical habitat of such species. In adversely modify critical habitat, we species and provide for the conservation addition, section 7(a)(4) of the Act provide reasonable and prudent of the species. requires Federal agencies to confer with alternatives to the project, if any are Section 4(b)(8) of the Act requires us the Service on any agency action that is identifiable, that would avoid the to briefly evaluate and describe, in any likely to jeopardize the continued likelihood of jeopardy and/or proposed or final regulation that existence of any species proposed to be destruction or adverse modification of designates critical habitat, activities listed under the Act or result in the critical habitat. We define ‘‘reasonable involving a Federal action that may destruction or adverse modification of and prudent alternatives’’ (at 50 CFR destroy or adversely modify such proposed critical habitat. 402.02) as alternative actions identified habitat, or that may be affected by such Decisions by the 5th and 9th Circuit during consultation that: designation. Courts of Appeals have invalidated our (1) Can be implemented in a manner Activities that may affect critical regulatory definition of ‘‘destruction or consistent with the intended purpose of habitat, when carried out, funded, or adverse modification’’ (50 CFR 402.02) the action, authorized by a Federal agency, should (see Gifford Pinchot Task Force v. U.S. (2) Can be implemented consistent result in consultation for the Ipomopsis Fish and Wildlife Service, 378 F. 3d with the scope of the Federal agency’s polyantha, Penstemon debilis, and 1059 (9th Cir. 2004) and Sierra Club v. legal authority and jurisdiction, Phacelia submutica. U.S. Fish and Wildlife Service et al., 245 (3) Are economically and For Ipomopsis polyantha these F.3d 434, 442 (5th Cir. 2001)), and we technologically feasible, and activities include, but are not limited to: do not rely on this regulatory definition (4) Would, in the Director’s opinion, (1) Actions that would lead to the when analyzing whether an action is avoid the likelihood of jeopardizing the destruction or alteration of the plants or likely to destroy or adversely modify continued existence of the listed species their habitat; or actions that would critical habitat. Under the statutory and/or avoid the likelihood of result in continual or excessive provisions of the Act, we determine destroying or adversely modifying disturbance or prohibit overland soil destruction or adverse modification on critical habitat. erosion on Mancos shale soils. Such the basis of whether, with Reasonable and prudent alternatives activities could include, but are not implementation of the proposed Federal can vary from slight project limited to, removing soils to a depth action, the affected critical habitat modifications to extensive redesign or that the seed bank has been removed, would continue to serve its intended relocation of the project. Costs repeatedly scraping areas, repeated conservation role for the species. associated with implementing a mowing, excessive grazing, continually If a Federal action may affect a listed reasonable and prudent alternative are driving vehicles across areas, permanent species or its critical habitat, the similarly variable. developments, the construction or responsible Federal agency (action Regulations at 50 CFR 402.16 require maintenance of utility or road corridors, agency) must enter into consultation Federal agencies to reinitiate and ditching. These activities could with us. Examples of actions that are consultation on previously reviewed remove the seed bank, reduce plant subject to the section 7 consultation actions in instances where we have numbers by prohibiting reproduction, process are actions on State, Tribal, listed a new species or subsequently impede or accelerate beyond historical local, or private lands that require a designated critical habitat that may be levels the natural or artificial erosion Federal permit (such as a permit from affected and the Federal agency has processes on which the plant relies (as the U.S. Army Corps of Engineers under retained discretionary involvement or described above in ‘‘Physical and section 404 of the Clean Water Act (33 control over the action (or the agency’s Biological Features’’), or lead to the total U.S.C. 1251 et seq.) or a permit from the discretionary involvement or control is loss of a site. Service under section 10 of the Act) or authorized by law). Consequently, (2) Actions that would result in the that involve some other Federal action Federal agencies sometimes may need to loss of pollinators or their habitat, such (such as funding from the Federal request reinitiation of consultation with that Ipomopsis polyantha reproduction Highway Administration, Federal us on actions for which formal could be diminished. Such activities Aviation Administration, or the Federal consultation has been completed, if could include, but are not limited to, Emergency Management Agency). those actions with discretionary destroying ground or twig nesting Federal actions not affecting listed involvement or control may affect habitat, habitat fragmentation that species or critical habitat, and actions subsequently listed species or prohibits pollinator movements from on State, Tribal, local, or private lands designated critical habitat. one area to the next, spraying pesticides

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that will kill pollinators, and the loss of Penstemon debilis plants and November 17, 2001. An INRMP eliminating other plant species on habitat. integrates implementation of the which pollinators are reliant for floral (3) Actions that would result in the military mission of the installation with resources (this could include replacing loss of pollinators or their habitat, such stewardship of the natural resources native species that provide floral that reproduction of Penstemon debilis found on the base. Each INRMP resources with grasses, which do not could be diminished. Such activities includes: provide floral resources for pollinators). could include, but are not limited to, (1) An assessment of the ecological These activities could result in reduced destroying ground, twig, or mud nesting needs on the installation, including the fruit production for Ipomopsis habitat; habitat fragmentation that need to provide for the conservation of polyantha, or increase the incidence of prohibits pollinator movements from listed species; self-pollination, thereby reducing one area to the next; spraying pesticides (2) A statement of goals and priorities; genetic diversity and seed production. that will kill pollinators; and (3) A detailed description of (3) Actions that would result in eliminating other plant species on management actions to be implemented excessive plant competition at which pollinators are reliant for floral to provide for these ecological needs; Ipomopsis polyantha sites. Such resources. These activities could result and activities could include, but are not in reduced fruit production for P. (4) A monitoring and adaptive limited to, revegetation efforts that debilis, or increase the incidence of self- management plan. include competitive nonnative invasive pollination, thereby further reducing Among other things, each INRMP species such as Bromus inermis, genetic diversity and reproductive must, to the extent appropriate and Medicago sativa (alfalfa), Meliotus spp. potential. applicable, provide for fish and wildlife (sweetclover); planting native species, For Phacelia submutica these management; fish and wildlife habitat such as Ponderosa pine, into open areas activities include, but are not limited to: enhancement or modification; wetland where the plant is found; and creating (1) Actions that would lead to the protection, enhancement, and disturbances that allow nonnative destruction or alteration of the plants, restoration where necessary to support invasive species to invade. These their seed bank, or their habitat, or fish and wildlife; and enforcement of activities could cause I. polyantha to be actions that would destroy the fragile applicable natural resource laws. outcompeted and subsequently either clay soils where Phacelia submutica is The National Defense Authorization lost at sites, or reduced in numbers of found. Such activities could include, Act for Fiscal Year 2004 (Pub. L. 108– individuals. but are not limited to, activities 136) amended the Act to limit areas For Penstemon debilis these activities associated with oil and gas eligible for designation as critical include, but are not limited to: development, including pipelines, habitat. Specifically, section 4(a)(3)(B)(i) (1) Actions that would lead to the roads, well pads, and associated of the Act (16 U.S.C. 1533(a)(3)(B)(i)) destruction or alteration of the plants or infrastructure; utility corridors or now provides: ‘‘The Secretary shall not their habitat. Such activities could infrastructure; road construction and designate as critical habitat any lands or include, but are not limited to, activities maintenance; excessive OHV use; and other geographical areas owned or associated with oil shale mining, excessive livestock grazing. Clay soils controlled by the Department of including the mines themselves, are most fragile when wet, so activities Defense, or designated for its use, that pipelines, roads, and associated that occur when soils are wet are are subject to an integrated natural infrastructure; activities associated with especially harmful. These activities resources management plan prepared oil and gas development, including could lead to the loss of individuals, under section 101 of the Sikes Act (16 pipelines, roads, well pads, and fragment the habitat, impact pollinators, U.S.C. 670a), if the Secretary determines associated infrastructure; activities cause increased dust deposition, and in writing that such plan provides a associated with reclamation activities, alter the habitat such that important benefit to the species for which critical utility corridors, or infrastructure; and erosional processes no longer occur. habitat is proposed for designation.’’ road construction and maintenance. (2) Actions that would result in No Department of Defense lands occur These activities could lead to the loss of excessive plant competition at Phacelia within the critical habitat designation. individuals, fragment the habitat, submutica sites. Such activities could Therefore, we are not exempting lands impact pollinators, cause increased dust include, but are not limited to, using from this final designation of critical deposition, introduce nonnative highly competitive species in habitat for Ipomopsis polyantha, invasive species, and alter the habitat restoration efforts, or creating Penstemon debilis, and Phacelia such that important downhill movement disturbances that allow nonnative submutica pursuant to section or the shale erosion no longer occurs. invasive species, such as Bromus 4(a)(3)(B)(i) of the Act. tectorum and Halogeton glomeratus, to (2) Actions that would alter the highly Exclusions mobile nature of the sites. Such invade. These activities could cause P. activities could include, but are not submutica to be outcompeted and Application of Section 4(b)(2) of the Act limited to, activities associated with oil subsequently either lost or reduced in Section 4(b)(2) of the Act states that shale mining, including pipelines, numbers of individuals. the Secretary shall designate and make roads, and associated infrastructure; Exemptions revisions to critical habitat on the basis activities associated with oil and gas of the best available scientific data after development, including pipelines, Application of Section 4(a)(3) of the Act taking into consideration the economic roads, well pads, and associated The Sikes Act Improvement Act of impact, national security impact, and infrastructure; activities associated with 1997 (Sikes Act) (16 U.S.C. 670a) any other relevant impact of specifying reclamation activities, utility corridors, required each military installation that any particular area as critical habitat. or infrastructure; and road construction includes land and water suitable for the The Secretary may exclude an area from and maintenance. These activities could conservation and management of critical habitat if he determines that the lead to increased soil formation and a natural resources to complete an benefits of such exclusion outweigh the subsequent increase in vegetation, integrated natural resources benefits of specifying such area as part alterations to the soil morphology, and management plan (INRMP) by of the critical habitat, unless he

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determines, based on the best scientific encouragement of partnerships; or the conservation strategies in the plan data available, that the failure to implementation of a management plan are likely to be effective; and whether designate such area as critical habitat that provides equal to or more the plan contains a monitoring program will result in the extinction of the conservation than a critical habitat or adaptive management to ensure that species. In making that determination, designation would provide. the conservation measures are effective the statute on its face, as well as the In the case of Ipomopsis polyantha, and can be adapted in the future in legislative history, are clear that the Penstemon debilis, and Phacelia response to new information. Secretary has broad discretion regarding submutica, the benefits of critical After identifying the benefits of which factor(s) to use and how much habitat include public awareness of inclusion and the benefits of exclusion, weight to give to any factor. their presence and the importance of we carefully weigh the two sides to In considering whether to exclude a habitat protection, and in cases where a evaluate whether the benefits of particular area from the designation, we Federal nexus exists, increased habitat exclusion outweigh those of inclusion. identify the benefits of including the protection for I. polyantha, P. debilis, If our analysis indicates that the benefits area in the designation, identify the and P. submutica due to the protection of exclusion outweigh the benefits of benefits of excluding the area from the from adverse modification or inclusion, we then determine whether designation, and evaluate whether the destruction of critical habitat. For the exclusion would result in extinction. If benefits of exclusion outweigh the reasons discussed below, we are not exclusion of an area from critical habitat benefits of inclusion. If the analysis excluding any lands from our critical will result in extinction, we will not indicates that the benefits of exclusion habitat designation for P. submutica and exclude it from the designation. outweigh the benefits of inclusion, the I. polyantha, but we are excluding all Secretary may exercise his discretion to Oxy lands within P. debilis Unit 3, Based on the information provided by exclude the area only if such exclusion Mount Callahan. entities seeking exclusion, species would not result in the extinction of the For these three species, all of which information, information in our files, as species. are plants that receive limited well as other public comments received, When identifying the benefits of protections under the Act, the primary we evaluated whether certain lands in inclusion for an area, we consider the impact and benefit of designating the proposed critical habitat unit for additional regulatory benefits that area critical habitat will be on Federal lands Penstemon debilis, Unit 3, Mount would receive from the protection from or in instances where there is a Federal Callahan were appropriate for exclusion adverse modification or destruction as a action for projects on private lands. from this final designation pursuant to result of actions with a Federal nexus; When we evaluate the existence of a section 4(b)(2) of the Act. We are the educational benefits of mapping conservation plan when considering the excluding the following areas from the essential habitat for recovery of the benefits of exclusion, we consider a critical habitat designation for P. debilis: listed species; and any benefits that may variety of factors, including but not All Oxy lands within the CHU for P. result from a designation due to State or limited to, whether the plan is finalized; debilis, Unit 3, Mount Callahan (3,350 Federal laws that may apply to critical how it provides for the conservation of ac (1,356 ha)). habitat. the essential physical or biological Table 7, below, provides approximate When identifying the benefits of features; whether there is a reasonable areas (ac, ha) of lands that meet the exclusion, we consider, among other expectation that the conservation definition of critical habitat, but are things, whether exclusion of a specific management strategies and actions being excluded under section 4(b)(2) of area is likely to result in conservation; contained in a management plan will be the Act from the final critical habitat the continuation, strengthening, or implemented into the future; whether rule.

TABLE 7—AREAS EXCLUDED FROM CRITICAL HABITAT DESIGNATION BY UNIT

Areas meeting Areas excluded definition of from critical Species Unit Specific area critical habitat in ac habitat in ac (ha) (ha)

Penstemon debilis ...... 3, Mount Callahan ...... Oxy lands ...... 7,719 ac 3,350 ac (3,124 ha) (1,356 ha)

We are excluding these areas because Economics, Incorporated 2012). The Phacelia submutica; some of these costs we determine that: DEA, dated March 2, 2012, was made will likely be incurred regardless of (1) They are appropriate for exclusion available for public review from March whether we designate critical habitat under the ‘‘other relevant factor’’ 27, 2012, through April 26, 2012 (77 FR (baseline). The economic impact of the provisions of section 4(b)(2) of the Act. 18157). Following the close of the final critical habitat designation is These exclusions are discussed in comment period, a final analysis (dated analyzed by comparing scenarios both detail below. June 7, 2012) of the potential economic ‘‘with critical habitat’’ and ‘‘without effects of the designation was critical habitat.’’ The ‘‘without critical Exclusions Based on Economic Impacts developed, taking into consideration the habitat’’ scenario represents the baseline Under section 4(b)(2) of the Act, we public comments received and any new for the analysis, considering protections consider the economic impacts of information obtained (Industrial already in place for the species (e.g., specifying any particular area as critical Economics 2012, entire). under the Federal listing and other habitat. In order to consider economic The intent of the FEA is to quantify Federal, State, and local regulations). impacts, we prepared a DEA of the the economic impacts of all potential Therefore, the baseline represents the proposed critical habitat designation conservation efforts for Ipomopsis costs incurred regardless of whether and related factors (Industrial polyantha, Penstemon debilis, and critical habitat is designated. The ‘‘with

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critical habitat’’ scenario describes the conservation activities on government The FEA quantifies economic impacts of incremental impacts associated agencies, private businesses, and Ipomopsis polyantha, Penstemon specifically with the designation of individuals. The FEA measures lost debilis, and Phacelia submutica critical habitat for the species. The economic efficiency associated with conservation efforts associated with the incremental conservation efforts and residential and commercial following categories of activity: (1) Oil associated impacts are those not development and public projects and and gas development, (2) transportation expected to occur absent the designation activities, such as economic impacts on projects, (3) agriculture and grazing, (4) of critical habitat for the species. In water management and transportation recreation, and (5) active species other words, the incremental costs are projects, Federal lands, small entities, management. those attributable solely to the and the energy industry. Decision- designation of critical habitat above and makers can use this information to The FEA estimates that total potential beyond the baseline costs; these are the assess whether the effects of the incremental economic impacts in costs we consider in the final designation might unduly burden a critical habitat areas for all three species designation of critical habitat. The particular group or economic sector. over the next 20 years will be $967,000 analysis looks retrospectively at Finally, the FEA looks retrospectively at to $14.8 million (approximately $85,300 baseline impacts incurred since the costs that have been incurred since 2011 to $1.3 million on an annualized basis), species was listed, and forecasts both (year of the species’ listing) (76 FR assuming a 7 percent discount rate baseline and incremental impacts likely 45054), and considers those costs that (Table 8). The largest contributor to the to occur with the designation of critical may occur in the 20 years following the incremental costs is impacts to oil and habitat. designation of critical habitat, which gas development, which represent The FEA also addresses how potential was determined to be the appropriate approximately 90 percent of economic impacts are likely to be period for analysis because limited incremental impacts in the low-cost distributed, including an assessment of planning information was available for scenario and 99 percent of impacts in any local or regional impacts of habitat most activities to forecast activity levels the high-cost scenario. conservation and the potential effects of for projects beyond a 20-year timeframe.

TABLE 8—INCREMENTAL IMPACTS OF THE CRITICAL HABITAT DESIGNATION FOR Ipomopsis polyantha, Penstemon debilis, AND Phacelia submutica BY SPECIES, UNIT, AND ACTIVITY (2012 DOLLARS, ASSUMING A 7 PERCENT DIS- COUNT RATE).

Unit Oil & gas Oil & gas Transpor- Agriculture & Species Subtotal Subtotal # Unit name -Low- -High- tation grazing Recreation mgmt -Low- -High-

Critical Habitat Designation

Ipomopsis polyantha (Pagosa Skyrocket)

1 ... Dyke ...... $0 $0 $9,370 $0 $0 $0 $9,370 $9,370 2 ... O’Neal Hill Special 0 0 0 0 7,500 0 7,500 7,500 Botanical Area. 3 ... Pagosa Springs...... 0 0 3,330 0 0 0 3,330 3,330 4 ... Eight Mile Mesa ...... 0 0 0 0 7,500 0 7,500 7,500

Penstemon debilis (Parachute Beardtongue)

1 ... Brush Mountain ...... 11,600 195,000 0 0 0 0 11,600 195,000 2 ... Cow Ridge ...... 35,500 599,000 0 0 0 0 35,500 599,000 3 ... Mount Callahan ...... 10,900 184,000 0 0 2,130 0 13,000 186,000 4 ... Anvil Points ...... 8,470 143,000 0 0 2,130 0 10,600 145,000

Phacelia submutica (DeBeque Phacelia)

1 ... Sulphur Gulch ...... 37,300 629,000 0 1,590 1,060 0 39,900 632,000 2 ... Pyramid Rock ...... 627,000 10,600,000 0 1,590 1,060 0 630,000 10,600,000 3 ... Roan Creek ...... 398 6,720 0 0 0 0 398 6,720 4 ... DeBeque ...... 13,100 221,000 0 1,590 1,060 0 15,800 224,000 5 ... Mount Logan...... 0 0 0 1,590 2,130 0 3,720 3,720 6 ... Ashmead Draw ...... 44,700 755,000 0 1,590 1,060 0 47,400 757,000 7 ... Baugh Reservoir ...... 18,200 307,000 0 1,590 1,060 0 20,800 310,000 8 ... Horsethief Mountain .. 60,200 1,020,000 0 43,600 5,820 0 110,000 1,070,000 9 ... Anderson Gulch ...... 1,150 19,500 0 0 0 0 1,150 19,500 Activity Subtotal ...... 868,000 14,700,000 12,700 53,200 32,500 0 967,000 14,800,000

Areas Excluded

Penstemon debilis

3 ... Mount Callahan ...... 0 0 0 0 0 ...... 0 Note: Totals may not sum due to rounding.

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In the low-cost scenario, proposed Land and Resource Management Plans, protected areas primarily to protect P. Unit 2 for Phacelia submutica has the Conservation Plans, or Agreements debilis. The agreement between Oxy and highest incremental impacts (65 percent Based on Conservation Partnerships CNAP to designate these CNAs provides of total), followed by proposed Unit 8 We consider for exclusions areas that conservation strategies and measures for P. submutica (11 percent of total) receive some protection due to the consistent with currently accepted and proposed Unit 6 for P. submutica existence of partnerships that result in principles of conservation biology as (five percent of total). In the high-cost tangible benefits to listed species. For explained in the following discussion. scenario, these same three units these exclusions, we consider a number Evidence of the partnership between (proposed Units 2, 8, and 6 for P. of factors, including current Oxy and CNAP and their commitment submutica) have the highest management or the existence of a to the conservation of P. debilis is incremental impacts with 72 percent, 7 management plan. We consider a provided by the articles of designation percent, and 5 percent of the total current land management or for the CNAs and the associated BMPs, incremental impacts, respectively. conservation plan (HCPs, as well as as described below. The articles of other types) to provide adequate designation (for all three areas) identify Incremental impacts to oil and gas the following conservation measures: development range from $868,000 to management or protection if it meets the following criteria: Implement the BMPs both within the $14.7 million, assuming a 7 percent CNAs where the plant is found and also discount rate. These impacts are related (1) The plan is complete and provides the same or better level of protection for nearby habitats; prohibit camping; to future oil and gas development that conduct noxious weed management to occurs in areas greater than 100 meters from adverse modification or destruction than that provided through minimize damage to P. debilis; limit from known Phacelia submutica grazing to preserve natural qualities; occurrences and greater than 1,000 a consultation under section 7 of the Act; and prohibit most vehicle use (CNAP meters from known Penstemon debilis and Oxy 2012, pp. 1–64). Oxy currently occurrences. Similar to the baseline (2) There is a reasonable expectation that the conservation management operates gas wells on five pads and an impacts, the large range in incremental access road in the proposed exclusion. impacts is due to uncertainty regarding strategies and actions will be implemented for the foreseeable future, Future plans include the drilling of the level and distribution of future oil based on past practices, written eight multi-well pads, none of which are and gas development. guidance, or regulations; and close to any populations of P. debilis Incremental impacts to transportation (3) The plan provides conservation (Biever 2011, p. 10). projects are estimated to be $12,700, strategies and measures consistent with Within the CNAs, the BMPs provide assuming a 7 percent discount rate. currently accepted principles of guidelines for surveys and require Incremental impacts to recreational conservation biology. surveys prior to any surface disturbance. activities are estimated to be $32,500, We find that the Mount Callahan Within 330 ft (100 m) of occupied assuming a 7 percent discount rate. The Natural Area, Mount Callahan Saddle habitat, the BMPs require that impacts incremental impacts to transportation Natural Area, and Logan Wash Mine to Penstemon debilis be qualitatively and recreational activities are limited to Natural Area and their associated Best monitored for 5 years; limit surface the administrative cost of consultation. Management Practices fulfill the above disturbance and require no surface Incremental impacts to agriculture and criteria, and are excluding non-Federal disturbance within 100 ft (33 m) of grazing are estimated to be $53,200, lands covered by this partnership that occupied habitat (not including assuming a 7 percent discount rate. provide for the conservation of reclamation activities); provide stipulations to protect pollinators; We are not excluding any lands based Penstemon debilis. recommend limiting surface disturbance on economic impacts. A copy of the Exclusions Based on the Partnership to times when the plant is dormant FEA with supporting documents may be Between Oxy and CNAP (Mount (October to March); require avoidance of obtained by contacting the Western Callahan Natural Area, the Mount designing projects that affect storm Colorado Ecological Services Office (see Callahan Saddle Natural Area, and the water flows, sediment, or other surface ADDRESSES) or by downloading from the Logan Wash Mine Natural Area) materials flows into occupied habitat; Internet at http://www.regulations.gov. We are excluding lands owned by limit undercutting; and require Exclusions Based on Other Relevant Oxy based on the partnership between temporary fencing to prevent Impacts Oxy and the State of Colorado’s CNAP encroachment into occupied habitat. to conserve the majority of three of the Further, the BMPs require specific Under section 4(b)(2) of the Act, we four viable populations of Penstemon protective measures for reclamation consider any other relevant impacts, in debilis. This long standing partnership activities in the Logan Wash Areas, addition to economic impacts and (over 25 years) is evidenced by the including coordinating with CNAP prior impacts on national security. We designation of Oxy lands that contain to reclamation activities, marking consider a number of factors including these P. debilis populations and their plants, constructing temporary barriers whether the landowners have developed habitat as CNAs. The Mount Callahan to protect the plants, installing any HCPs or other management plans Natural Area was designated by Oxy protective matting over plants if for the area, or whether there are and CNAP in 1987, shortly after the necessary for reclamation activities, and conservation partnerships that would be discovery of P. debilis (CNAP 1987, pp. transplanting plants (if necessary). encouraged by designation of, or 1–7). The Mount Callahan Saddle Within the CNAs, general BMPs include exclusion from, critical habitat. In Natural Area was designated by Oxy limiting off-road vehicle use to existing addition, we look at any Tribal issues, and CNAP in 2008 (CNAP 2008, pp. 1– routes and establishing procedures to and consider the government-to- 11). A third area, the Logan Wash Mine limit this use in areas within 100 ft (33 government relationship of the United Natural Area, is in the process of being m) of occupied habitat, limiting dust States with Tribal entities. We also designated (CNAP and Oxy 2012, pp. 1– from roads, performing quantitative consider any social impacts that might 64). All three CNAs were or are being monitoring to track the status of P. occur because of the designation. designated on a voluntary basis as debilis, and providing protective

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stipulations for noxious weed control By including these lands in the Exclusion Will Not Result in Extinction and revegetation efforts. The BMPs also critical habitat designation, it would be of the Species limit collection of P. debilis (CNAP and more widely known that these areas The partnership between Oxy and Oxy 2012, Appendix E). have the PCEs for Penstemon debilis. CNAP has given rise to an agreement As further evidence of the partnership Benefits of Exclusion that provides conservation strategies between Oxy and CNAP and their and measures consistent with currently commitment to the conservation of P. • Cooperative efforts for the accepted principles of conservation debilis, additional general BMPs were management and conservation of biology and provides better protection recently developed for the CNAs and Penstemon debilis will continue, and for Penstemon debilis from adverse adjacent lands, extending benefits to the ongoing conservation partnerships will modification or destruction of habitat species beyond the borders of the CNA than that provided through a designation. These BMPs include be strengthened. • consultation under section 7 of the Act guidelines to: Oxy will continue implementing as explained above. Because of the long- (1) limit surface disturbance by conservation actions for Penstemon term partnership between Oxy and transporting water by pipelines instead debilis on their lands through CNA CNAP, implementation of their of trucks, reducing visits to well-sites, Agreement and BMPs. This provides a agreement, Oxy’s long-term and maximizing drilling technology through better level of protection from adverse excellent commitment to conserving the high-efficiency rigs, directional drilling, modification or destruction of habitat species, evidence that Oxy intends to multi-well pads, coiled-tubing unit rigs that that provided through a continue implementing this agreement, to minimize disturbance, and limiting consultation under section 7 of the Act. and intentions to expand these the number of rig moves and traffic; Furthermore, Oxy has an excellent track commitments, there is a reasonable (2) conduct dust abatement activities record protecting P. debilis. expectation that the agreement will be during the growing season (April to • Pollinator and habitat BMPs will implemented into the future and we September); believe this exclusion will not result in (3) reclaim disturbances and re- apply outside of specific Natural Areas. the extinction of the species. vegetate areas with native plants, The exclusion would provide including forb species that would recognition for the proactive Required Determinations provide resources for pollinators at conservation efforts that have been Regulatory Planning and Review— optimal times for seed germination and implemented in practice by Oxy and Executive Orders 12866 and 13563 establishment, and track the success of CNAP. this seeding with follow up seeding if Executive Order 12866 provides that necessary; Benefits of Exclusion Outweigh the the Office of Information and Regulatory (4) ensure that any straw bales used Benefits of Inclusion Affairs (OIRA) will review all significant are weed free; rules. The OIRA has determined that (5) increase pollinator presence by Ongoing management of the Mount this rule is not significant. creating nesting substrates; Callahan Natural Area since 1987, Executive Order 13563 reaffirms the (6) conduct surveys in all accessible consistent with the conservation principles of E.O. 12866 while calling suitable habitat within 330 ft (100 m) of measures and BMPs, demonstrates a for improvements in the nation’s a project disturbance; long-term commitment and partnership regulatory system to promote (7) protect any new populations of by Oxy and the CNAP. Furthermore, the predictability, to reduce uncertainty, Penstemon debilis that are located, Oxy Mount Callahan Saddle Natural Area and to use the best, most innovative, and CNAP would then protect these was added in 2008 and the Mount and least burdensome tools for populations, with more than 75 Logan Mine Natural Area is being added achieving regulatory ends. The individuals, through subsequent CNAs; in 2012, demonstrating an expansion of executive order directs agencies to and and commitment to conservation efforts, consider regulatory approaches that (8) conduct noxious weed control that as discussed above. In addition, Oxy has reduce burdens and maintain flexibility limits the use of herbicides within agreed to extend their termination and freedom of choice for the public specific distances of occupied habitat, clause on the agreement from 3 months where these approaches are relevant, but that also protects occupied habitat to 2 years, again, demonstrating a feasible, and consistent with regulatory from invasive plants (CNAP and Oxy commitment to conservation of the objectives. E.O. 13563 emphasizes 2012, Appendix F). species and partnership with CNAP. further that regulations must be based on the best available science and that Benefits of Inclusion Oxy manages the majority of three of the rulemaking process must allow for the four viable populations of If these private lands were included public participation and an open Penstemon debilis. These populations in the designation, section (7)(a)(2) exchange of ideas. We have developed all occur on private lands (over private consultations would occur on private this rule in a manner consistent with (Oxy) lands only if there were proposed minerals), where a Federal action will these requirements. activities involving a Federal action. A only seldom, if ever, provide protection Federal action would most likely arise through section (7)(a)(2) consultation. Regulatory Flexibility Act (5 U.S.C. 601 for drainage crossings (Army Corps Without the cooperation of this et seq.) permits); other instances of a Federal important partner and their partnership Under the Regulatory Flexibility Act action are unlikely because any Federal with CNAP, the recovery of P. debilis (RFA) (5 U.S.C. 601 et seq.), as amended actions or funding would be extremely will be much more difficult. We believe by the Small Business Regulatory limited on lands owned by Oxy. There that the articles of designation and Enforcement Fairness Act (SBREFA) of are no Federal minerals below Oxy accompanying BMPs for P. debilis will 1996 (5 U.S.C 801 et seq.), whenever an lands that were proposed as critical benefit the species more than the agency must publish a notice of habitat. Drainage crossings are generally occasional consultation that may occur rulemaking for any proposed or final far removed from Penstemon debilis because of a Federal nexus on these rule, it must prepare and make available habitat, making this action less likely. lands. for public comment a regulatory

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flexibility analysis that describes the small entities is affected by this project modifications to reduce effects of the rule on small entities designation, this analysis considers the potential impacts to the habitat. The (small businesses, small organizations, relative number of small entities likely costs of implementing these project and small government jurisdictions). to be impacted in an area. In some modifications are one impact of the However, no regulatory flexibility circumstances, especially with critical regulation. In addition, affected analysis is required if the head of an habitat designations of limited extent, companies will incur administrative agency certifies the rule will not have a we may aggregate across all industries costs associated with the section 7 significant economic impact on a and consider whether the total number consultation process. substantial number of small entities. of small entities affected is substantial. The FEA estimates that between 0.23 The SBREFA amended the RFA to In estimating the number of small and 5.1 oil and gas development require Federal agencies to provide a entities potentially affected, we also projects are undertaken in the study certification statement of the factual consider whether their activities have area annually (total number of projects basis for certifying that the rule will not any Federal involvement. divided by 20 years). We multiply these have a significant economic impact on Designation of critical habitat only projects by the percentage of small a substantial number of small entities. affects activities authorized, funded, or entities in these counties, or In this final rule, we are certifying that carried out by Federal agencies. Some approximately 60 percent, to identify the critical habitat designation for kinds of activities are unlikely to have the annual number of projects likely to Ipomopsis polyantha, Penstemon any Federal involvement and so will not be undertaken by small entities (0.14 to debilis, and Phacelia submutica will not be affected by critical habitat 3.06 projects annually). Some of these have a significant economic impact on designation. In areas where the species projects will only incur incremental a substantial number of small entities. is present, Federal agencies already are administrative costs because they are The following discussion explains our required to consult with us under located close to occupied habitat. In rationale. section 7 of the Act on activities they these cases, the project modification According to the Small Business authorize, fund, or carry out that may costs will be incurred regardless of the Administration, small entities include affect Ipomopsis polyantha, Penstemon designation of critical habitat. Projects small organizations, such as debilis, and Phacelia submutica. Federal experiencing the highest annual independent nonprofit organizations; agencies also must consult with us if incremental costs are located in small governmental jurisdictions, their activities may affect critical unoccupied areas. We multiply the per- including school boards and city and habitat. Therefore, designation of project costs in these unoccupied areas town governments that serve fewer than critical habitat could result in an by the total number of annual projects 50,000 residents; as well as small additional economic impact on small undertaken by small entities and then businesses. Small businesses include entities due to the requirement to divide by the number of affected small manufacturing and mining concerns reinitiate consultation for ongoing entities to estimate per-entity costs. with fewer than 500 employees, Federal activities (see Application of the These impacts are then compared to wholesale trade entities with fewer than ‘‘Adverse Modification Standard’’ average annual sales per small business 100 employees, retail and service section). in the oil and gas development sector. businesses with less than $5 million in In our FEA of the critical habitat On average, annual incremental impacts annual sales, general and heavy designation, we evaluated the potential per small drilling company represent construction businesses with less than economic effects on small business 0.01 to 0.27 percent of small developers’ $27.5 million in annual business, entities resulting from conservation annual average sales. special trade contractors doing less than actions related to the listing of $11.5 million in annual business, and Ipomopsis polyantha, Penstemon Based on estimates and calculations, agricultural businesses with annual debilis, and Phacelia submutica and the fewer than two to four small entities sales less than $750,000. To determine potential economic effects resulting may be affected annually by the critical if potential economic impacts on these from the designation of critical habitat. habitat designation. These entities will small entities are significant, we The analysis is based on the estimated likely experience costs equivalent to consider the types of activities that impacts associated with the rulemaking less than 1 percent of annual revenues. might trigger regulatory impacts under as described in Chapters 2 through 5 Importantly, these estimates assume this rule, as well as the types of project and Appendix A of the analysis and each well pad is drilled by a separate modifications that may result. In evaluates the potential for economic entity. In the case that one small general, the term ‘‘significant economic impacts related to: (1) Oil and gas company drills more well pads than impact’’ is meant to apply to a typical development, (2) transportation predicted, impacts to that company are small business firm’s business projects, (3) agriculture and grazing, (4) underestimated, and the annual number operations. recreation, and (5) active species of affected entities is overstated. To determine if the rule could management, such as fencing efforts In summary, we considered whether significantly affect a substantial number being done by Federal and State this designation would result in a of small entities, we consider the agencies. significant economic effect on a number of small entities affected within Small entities represent 60 percent of substantial number of small entities. particular types of economic activities all entities in the oil and gas Based on the above reasoning and (e.g., oil and gas development, development industry that may be currently available information, we transportation projects, and agriculture affected. The analysis expects concluded that this rule would not and grazing). We apply the ‘‘substantial conservation efforts for the three plants result in a significant economic impact number’’ test individually to each to affect companies that are involved on a substantial number of small industry to determine if certification is with drilling for oil and gas and that entities. Therefore, we are certifying that appropriate. However, the SBREFA does lease or plan to lease Federal lands. the designation of critical habitat for not explicitly define ‘‘substantial Although we predict that drilling Ipomopsis polyantha, Penstemon number’’ or ‘‘significant economic activity will not be precluded by the debilis, and Phacelia submutica will not impact.’’ Consequently, to assess designation, we anticipate requesting have a significant economic impact on whether a ‘‘substantial number’’ of that drilling companies undertake a substantial number of small entities,

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and a regulatory flexibility analysis is provided annually to State, local, and Consequently, we do not believe that not required. tribal governments under entitlement the critical habitat designation would authority,’’ if the provision would significantly or uniquely affect small Energy Supply, Distribution, or Use— ‘‘increase the stringency of conditions of government entities. As such, a Small Executive Order 13211 assistance’’ or ‘‘place caps upon, or Government Agency Plan is not Executive Order 13211 (Actions otherwise decrease, the Federal required. Concerning Regulations That Government’s responsibility to provide Takings—Executive Order 12630 Significantly Affect Energy Supply, funding,’’ and the State, local, or Tribal Distribution, or Use) requires agencies governments ‘‘lack authority’’ to adjust In accordance with Executive Order to prepare Statements of Energy Effects accordingly. At the time of enactment, 12630 (Government Actions and when undertaking certain actions. OMB these entitlement programs were: Interference with Constitutionally has provided guidance for Medicaid; Aid to Families with Protected Private Property Rights), we implementing this Executive Order that Dependent Children work programs; have analyzed the potential takings outlines nine outcomes that may Child Nutrition; Food Stamps; Social implications of designating critical constitute ‘‘a significant adverse effect’’ Services Block Grants; Vocational habitat for Ipomopsis polyantha, when compared to not taking the Rehabilitation State Grants; Foster Care, Penstemon debilis, and Phacelia regulatory action under consideration. Adoption Assistance, and Independent submutica in a takings implications Critical habitat designation for the Living; Family Support Welfare assessment. As discussed above, the three plants is anticipated to affect oil Services; and Child Support designation of critical habitat affects and gas activities. However, the Service Enforcement. ‘‘Federal private sector only Federal actions. Although private is more likely to recommend a series of mandate’’ includes a regulation that parties that receive Federal funding, project modifications that will allow for ‘‘would impose an enforceable duty assistance, or require approval or work within critical habitat, rather than upon the private sector, except (i) a authorization from a Federal agency for complete avoidance of critical habitat. condition of Federal assistance or (ii) a an action may be indirectly impacted by Therefore, reductions in oil and natural duty arising from participation in a the designation of critical habitat, the gas production are not anticipated. voluntary Federal program.’’ legally binding duty to avoid Furthermore, given the small fraction of The designation of critical habitat destruction or adverse modification of projects affected, approximately three or does not impose a legally binding duty critical habitat rests squarely on the fewer, project modification costs are not on non-Federal Government entities or Federal agency. anticipated to increase the cost of private parties. Under the Act, the only We believe that the takings energy production or distribution in the regulatory effect is that Federal agencies implications associated with this critical United States in excess of 1 percent, one must ensure that their actions do not habitat designation will be insignificant, of the nine thresholds contained in destroy or adversely modify critical even though private lands are included Executive Order 13211. Thus, none of habitat under section 7. While non- as well as Federal lands. Impacts of the nine threshold levels of impact Federal entities that receive Federal critical habitat designation may occur provided by OMB is exceeded. funding, assistance, or permits, or that on private lands where there is Federal Therefore, designation of critical habitat otherwise require approval or involvement (e.g., Federal funding or is not expected to lead to any adverse authorization from a Federal agency for permitting) subject to section 7 of the outcomes (such as a reduction in oil and an action, may be indirectly impacted Act. Impacts on private entities also natural gas production or distribution), by the designation of critical habitat, the may result if the decision on a proposed and a Statement of Energy Effects is not legally binding duty to avoid action on federally owned land required. destruction or adverse modification of designated as critical habitat could critical habitat rests squarely on the affect economic activity on adjoining Unfunded Mandates Reform Act (2 Federal agency. Furthermore, to the non-Federal land. Each action would be U.S.C. 1501 et seq.) extent that non-Federal entities are evaluated by the involved Federal In accordance with the Unfunded indirectly impacted because they agency, in consultation with the Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate Service, in relation to its impact on seq.), we make the following findings: in a voluntary Federal aid program, the these species’ designated critical (1) This rule will not produce a Unfunded Mandates Reform Act would habitat. In the unexpected event that Federal mandate. In general, a Federal not apply, nor would critical habitat expensive modifications would be mandate is a provision in legislation, shift the costs of the large entitlement required to a project on private statute, or regulation that would impose programs listed above onto State property, it is not likely that the an enforceable duty upon State, local, or governments. economic impacts to the property owner Tribal governments, or the private (2) We do not believe that this rule would be such to support a takings sector, and includes both ‘‘Federal will significantly or uniquely affect action. intergovernmental mandates’’ and small governments because it would not The takings implications assessment ‘‘Federal private sector mandates.’’ produce a Federal mandate of $100 concludes that this designation of These terms are defined in 2 U.S.C. million or greater in any year; that is, it critical habitat for Ipomopsis polyantha, 658(5)–(7). ‘‘Federal intergovernmental is not a ‘‘significant regulatory action’’ Penstemon debilis, and Phacelia mandate’’ includes a regulation that under the Unfunded Mandates Reform submutica does not pose significant ‘‘would impose an enforceable duty Act. The FEA concludes that takings implications for lands within or upon State, local, or tribal governments’’ incremental impacts may occur due to affected by the designation. with two exceptions. It excludes ‘‘a project modifications and condition of Federal assistance.’’ It also administrative costs of consultation that Federalism—Executive Order 13132 excludes ‘‘a duty arising from may need to be made for oil and gas, In accordance with Executive Order participation in a voluntary Federal transportation, grazing, and recreational 13132 (Federalism), this rule does not program,’’ unless the regulation ‘‘relates activities; however, these are not have significant Federalism effects. A to a then-existing Federal program expected to affect small governments to Federalism impact summary statement under which $500,000,000 or more is the extent described above. is not required. In keeping with

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Department of the Interior and Paperwork Reduction Act of 1995 (44 Governments; 59 FR 22951), Executive Department of Commerce policy, we U.S.C. 3501 et seq.) Order 13175 (Consultation and requested information from, and This rule does not contain any new Coordination with Indian Tribal coordinated development of, this collections of information that require Governments), and the Department of critical habitat designation with approval by OMB under the Paperwork the Interior’s manual at 512 DM 2, we appropriate State resource agencies in Reduction Act of 1995 (44 U.S.C. 3501 readily acknowledge our responsibility Colorado. We received three comments et seq.). This rule will not impose to communicate meaningfully with from the CNAP and have addressed recordkeeping or reporting requirements recognized Federal Tribes on a them in the Summary of Comments and on State or local governments, government-to-government basis. In Recommendations section of the rule. individuals, businesses, or accordance with Secretarial Order 3206 The designation of critical habitat in organizations. An agency may not of June 5, 1997 (American Indian Tribal areas currently occupied by Ipomopsis conduct or sponsor, and a person is not Rights, Federal-Tribal Trust polyantha, Penstemon debilis, and required to respond to, a collection of Responsibilities, and the Act), we Phacelia submutica imposes no information unless it displays a readily acknowledge our responsibilities additional restrictions to those currently currently valid OMB control number. to work directly with Tribes in in place and, therefore, has little developing programs for healthy incremental impact on State and local National Environmental Policy Act (42 ecosystems, to acknowledge that Tribal governments and their activities. The U.S.C. 4321 et seq.) lands are not subject to the same designation may have some benefit to It is our position that, outside the controls as Federal public lands, to these governments in that the areas that jurisdiction of the U.S. Court of Appeals remain sensitive to Indian culture, and contain the physical or biological for the Tenth Circuit, we do not need to to make information available to Tribes. features essential to the conservation of prepare environmental analyses We determined that there are no Tribal the species are more clearly defined, pursuant to the National Environmental lands occupied by Ipomopsis polyantha, and the elements of the features of the Policy Act (NEPA) (42 U.S.C. 4321 et Penstemon debilis, and Phacelia habitat necessary to the conservation of seq.) in connection with designating submutica at the time of listing that the species are specifically identified. critical habitat under the Act. We contain the features essential for This information does not alter where published a notice outlining our reasons conservation of the species, and no and what federally sponsored activities for this determination in the Federal Tribal lands unoccupied by I. may occur. However, it may assist local Register on October 25, 1983 (48 FR polyantha, P. debilis, and P. submutica governments in long-range planning 49244). This position was upheld by the that are essential for the conservation of (rather than having them wait for case- U.S. Court of Appeals for the Ninth the species. Therefore, we are not by-case section 7 consultations to Circuit (Douglas County v. Babbitt, 48 designating critical habitat for the I. occur). F.3d 1495 (9th Cir. 1995), cert. denied polyantha, P. debilis, and P. submutica Where State and local governments 516 U.S. 1042 (1996)). However, when on Tribal lands. require approval or authorization from a the range of the species includes States References Cited Federal agency for actions that may within the Tenth Circuit, such as that of affect critical habitat, consultation Ipomopsis polyantha, Penstemon A complete list of all references cited under section 7(a)(2) would be required. debilis, and Phacelia submutica, under is available on the Internet at http:// While non-Federal entities that receive the Tenth Circuit ruling in Catron www.regulations.gov and upon request Federal funding, assistance, or permits, County Board of Commissioners v. U.S. from the Western Colorado Ecological or that otherwise require approval or Fish and Wildlife Service, 75 F.3d 1429 Services Office (see FOR FURTHER authorization from a Federal agency for (10th Cir. 1996), we undertake NEPA INFORMATION CONTACT). an action, may be indirectly impacted analysis for critical habitat designation Authors by the designation of critical habitat, the (77 FR 18157). legally binding duty to avoid We completed NEPA analysis for this The primary authors of this destruction or adverse modification of critical habitat designation. We notified rulemaking are the staff members of critical habitat rests squarely on the the public of availability of the draft Western Colorado Ecological Services Federal agency. environmental assessment (Service Office. Civil Justice Reform—Executive Order 2012b, entire) for the proposed rule on List of Subjects in 50 CFR Part 17 12988 March 27, 2012 (77 FR 18157). The final environmental assessment, as well as Endangered and threatened species, In accordance with Executive Order the finding of no significant impact, is Exports, Imports, Reporting and 12988 (Civil Justice Reform), the Office available upon request from the Field recordkeeping requirements, of the Solicitor has determined that the Supervisor, Colorado Ecological Transportation. rule does not unduly burden the judicial Services Office (see FOR FURTHER Regulation Promulgation system and that it meets the applicable INFORMATION CONTACT section), at http:// standards set forth in sections 3(a) and www.regulations.gov at Docket No. Accordingly, we amend part 17, 3(b)(2) of the Order. We are designating FWS–R6–2011–0040, or on our Web site subchapter B of chapter I, title 50 of the critical habitat in accordance with the at http://www.fws.gov/mountain-prairie/ Code of Federal Regulations, as set forth provisions of the Act. This final rule species/plants/3ColoradoPlants/ below: uses standard property descriptions and index.html. identifies the elements of physical or PART 17—[AMENDED] biological features essential to the Government-to-Government conservation of Ipomopsis polyantha, Relationship With Tribes ■ 1. The authority citation for part 17 Penstemon debilis, and Phacelia In accordance with the President’s continues to read as follows: submutica within the designated areas memorandum of April 29, 1994 Authority: 16 U.S.C. 1361–1407; 16 U.S.C. to assist the public in understanding the (Government-to-Government Relations 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– habitat needs of the species. with Native American Tribal 625, 100 Stat. 3500; unless otherwise noted.

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■ 2. Amend § 17.12(h) by revising the submutica’’ under ‘‘Flowering Plants’’ § 17.12 Endangered and threatened plants. entries for ‘‘Ipomopsis polyantha,’’ in the List of Endangered and * * * * * ‘‘Penstemon debilis,’’ and ‘‘Phacelia Threatened Plants to read as follows: (h) * * *

Species Historic range Family Status When listed Critical Special Scientific name Common Name habitat rules

FLOWERING PLANTS

******* Ipomopsis Pagosa skyrocket .. U.S.A. (CO) ...... Polemoniaceae ...... E 792 17.96(a) NA polyantha.

******* Penstemon debilis Parachute U.S.A. (CO) ...... Plantaginaceae ...... T 792 17.96(a) NA beardtongue.

******* Phacelia submutica DeBeque phacelia U.S.A. (CO) ...... Hydrophyllaceae .... T 792 17.96(a) NA

*******

■ 3. In § 17.96, amend paragraph (a) by and are likely important in the (v) Maintenance of the seed bank and adding entries for ‘‘Phacelia submutica maintenance of the seed bank. appropriate disturbance levels. (DeBeque phacelia)’’ in alphabetical (ii) Topography. Moderately steep (A) Within suitable soil and geologies order under Family Hydrophyllaceae, slopes, benches, and ridge tops adjacent (see paragraph (2)(i) of this entry), ‘‘Penstemon debilis (Parachute to valley floors. Occupied slopes range undisturbed areas where seed banks are penstemon)’’ in alphabetical order from 2 to 42 degrees with an average of left undamaged. under Family Plantaginaceae, and 14 degrees. (B) Areas with light disturbance when ‘‘Ipomopsis polyantha (Pagosa (iii) Elevation and climate. dry and no disturbance when wet. skyrocket)’’ in alphabetical order under (A) Elevations from 4,600 ft (1,400 m) (3) Critical habitat does not include Family Polemoniaceae, to read as to 7,450 ft (2,275 m). manmade structures (such as buildings, follows: (B) Climatic conditions similar to aqueducts, runways, roads, and other those around DeBeque, Colorado, paved areas) and the land on which they § 17.96 Critical habitat—plants. including suitable precipitation and are located existing within the legal (a) Flowering plants. temperatures. Annual fluctuations in boundaries on September 12, 2012. * * * * * moisture (and probably temperature) (4) Critical habitat map units. Data Family Hydrophyllaceae: Phacelia greatly influences the number of layers defining map units were created submutica (DeBeque phacelia) Phacelia submutica individuals that on a base of both satellite imagery (NAIP (1) Critical habitat units are grow in a given year and are thus able 2009) as well as USGS geospatial designated for Garfield and Mesa to set seed and replenish the seed bank. quadrangle maps and were mapped Counties, Colorado. (iv) Plant community. using NAD 83 Universal Transverse (2) The primary constituent elements (A) Small (from 10 to 1,000 ft2 (1 to Mercator (UTM), zone 13N coordinates. of the physical and biological features 100 m2)) barren areas with less than 20 Location information came from a wide essential to the conservation of Phacelia percent plant cover in the actual barren array of sources. A habitat model submutica consist of five components: areas. prepared by the Colorado Natural (i) Suitable soils and geology. (B) Presence of appropriate associated Heritage Program also was utilized. The (A) Atwell Gulch and Shire members species that can include (but are not maps in this entry, as modified by any of the Wasatch formation. limited to) the natives Grindelia accompanying regulatory text, establish (B) Within these larger formations, fastigiata, Eriogonum gordonii, the boundaries of the critical habitat small areas (from 10 to 1,000 ft2 (1 to Monolepis nuttalliana, and Oenothera designation. The coordinates or plot 100 m2)) on colorful exposures of caespitosa. Some presence, or even points or both on which each map is chocolate to purplish brown, light to domination by, invasive nonnative based are available to the public on dark charcoal gray, and tan clay soils. species, such as Bromus tectorum, may http://regulations.gov at Docket No. These small areas are slightly different occur, as Phacelia submutica may still FWS–R6–ES–2011–0040, on our in texture and color than the similar be found there. Internet site (http://www.fws.gov/ surrounding soils. Occupied sites are (C) Appropriate plant communities mountain-prairie/species/plants/ characterized by alkaline (pH range within the greater pinyon-juniper 3ColoradoPlants/index.html), and at the from 7 to 8.9) soils with higher clay woodlands that include: Western Colorado Ecological Services content than similar nearby unoccupied (1) Clay badlands within the mixed Office, 764 Horizon Drive, Suite B, soils. salt desert scrub; or Grand Junction, CO 81506–3946. (C) Clay soils that shrink and swell (2) Clay badlands within big (5) Note: Index map follows: dramatically upon drying and wetting sagebrush shrublands. BILLING CODE 4310–55–P

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(6) Unit 1: Sulfur Gulch, Mesa submutica is provided at paragraph (7) Units 1 and 2 of critical habitat for County, Colorado. Note: Map of Unit 1 of this entry. Phacelia submutica follows: of critical habitat for Phacelia (7) Unit 2: Pyramid Rock, Garfield and Mesa Counties, Colorado. Note: Map of

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(8) Unit 3: Roan Creek, Garfield (9) Unit 4: DeBeque, Mesa County, (10) Unit 5: Mount Logan, Garfield County, Colorado. Note: Map of Unit 3 Colorado. Note: Map of Unit 4 of critical County, Colorado. Note: Map of Units 3, of critical habitat for Phacelia habitat for Phacelia submutica is 4, and 5 of critical habitat for Phacelia submutica is provided at paragraph (10) provided at paragraph (10) of this entry. submutica follows: of this entry.

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(11) Unit 6: Ashmead Draw, Mesa of critical habitat for Phacelia submutica is provided at paragraph (14) County, Colorado. Note: Map of Unit 6 submutica is provided at paragraph (14) of this entry. of critical habitat for Phacelia of this entry. (14) Unit 9: Anderson Gulch, Mesa submutica is provided at paragraph (14) (13) Unit 8: Horsethief Mountain, County, Colorado. Note: Map of Units 6, of this entry. Mesa County, Colorado. Note: Map of 7, 8, and 9 of critical habitat for Phacelia (12) Unit 7: Baugh Reservoir, Mesa County, Colorado. Note: Map of Unit 7 Unit 8 of critical habitat for Phacelia submutica follows:

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* * * * * Penstemon osterhoutii, and Festuca (3) Critical habitat does not include Family Plantaginaceae: Penstemon dasyclada. manmade structures (such as buildings, debilis (Parachute penstemon) (C) Presence of Penstemon caespitosa aqueducts, runways, roads, and other (1) Critical habitat units are for support of pollinators and paved areas) and the land on which they designated for Garfield County, connectivity between sites. are located existing within the legal Colorado. (iv) Habitat for pollinators. boundaries on September 12, 2012. (2) The primary constituent elements (A) Pollinator ground, twig, and mud nesting areas. Nesting and foraging (4) Critical habitat map units. Data of the physical and biological features layers defining map units were created essential to the conservation of habitats suitable for a wide array of pollinators and their life-history and on a base of both satellite imagery (NAIP Penstemon debilis consist of five 2009) as well as USGS geospatial components: nesting requirements. A mosaic of native plant communities and habitat quadrangle maps and were mapped (i) Suitable soils and geology. using NAD 83 Universal Transverse (A) Parachute Member and the Lower types generally would provide for this diversity (see paragraph (2)(iii) of this Mercator (UTM), zone 13N coordinates. Part of the Green River Formation. Location information came from a wide (B) Appropriate soil morphology entry). These habitats can include areas outside of the soils identified in array of sources. Geology, soil, and characterized by a surface layer of small landcover layers also were utilized. The to moderate shale channers (small paragraph (2)(i) of this entry. (B) Connectivity between areas maps in this entry, as modified by any flagstones) that shift continually due to allowing pollinators to move from one accompanying regulatory text, establish the steep slopes and below a weakly population to the next within units. the boundaries of the critical habitat developed calcareous, sandy to loamy (C) Availability of other floral designation. The coordinates or plot layer with 40 to 90 percent coarse resources such as other flowering plant points or both on which each map is material. species that provide nectar and pollen based are available to the public on (ii) Elevation and climate. Elevations for pollinators. Grass species do not http://regulations.gov at Docket No. from 5,250 to 9,600 ft (1,600 to 2,920 m). provide resources for pollinators. FWS–R6–ES–2011–0040, on our Climatic conditions similar to those of (D) A 3,280-ft (1,000-m) area beyond Internet site (http://www.fws.gov/ the Mahogany Bench, including suitable occupied habitat to conserve the mountain-prairie/species/plants/ precipitation and temperatures. pollinators essential for plant 3ColoradoPlants/index.html), and at the (iii) Plant community. reproduction. (A) Barren areas with less than 10 Western Colorado Ecological Services (v) High levels of natural disturbance. Office, 764 Horizon Drive, Suite B, percent plant cover. (A) Very little to no soil formation. (B) Other oil shale endemics, which (B) Slow to moderate but constant Grand Junction, CO 81506–3946. can include: Mentzelia rhizomata, downward motion of the oil shale that (5) Note: Index map of critical habitat Thalictrum heliophilum, Astragalus maintains the habitat in an early for Penstemon debilis follows: lutosus, Lesquerella parviflora, successional state. BILLING CODE 4310–55–P

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(6) Unit 1: Brush Mountain, Garfield is provided at paragraph (7) of this and 2 of critical habitat for Penstemon County, Colorado. Note: Map of Unit 1 entry. debilis follows: of critical habitat for Penstemon debilis (7) Unit 2: Cow Ridge, Garfield County, Colorado. Note: Map of Units 1

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(8) Unit 3: Mount Callahan, Garfield of critical habitat for Penstemon debilis County, Colorado. Note: Map of Unit 3 follows:

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(9) Unit 4: Anvil Points, Garfield of critical habitat for Penstemon debilis County, Colorado. Note: Map of Unit 4 follows:

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* * * * * (2) Open montane grassland (3) Critical habitat does not include Family Polemoniaceae: Ipomopsis (primarily Arizona fescue) understory at manmade structures (such as buildings, polyantha (Pagosa skyrocket) the edges of open Ponderosa pine; or aqueducts, runways, roads, and other (1) Critical habitat units are (3) Clearings within the ponderosa paved areas) and the land on which they designated for Archuleta County, pine/Rocky Mountain juniper and Utah are located existing within the legal Colorado. juniper/oak communities. boundaries on September 12, 2012. (iv) Habitat for pollinators. However, because Ipomopsis polyantha (2) The primary constituent elements (A) Pollinator ground and twig of the physical and biological features is found along the edges of roads and nesting areas. Nesting and foraging buildings, the edges of roads and edges essential to the conservation of habitats suitable for a wide array of Ipomopsis polyantha consist of five of structures are included in the pollinators and their life-history and designation. components: nesting requirements. A mosaic of (i) Mancos shale soils. native plant communities and habitat (4) Critical habitat map units. Data (ii) Elevation and climate. Elevations types generally would provide for this layers defining map units were created from 6,400 to 8,100 ft (1,950 to 2,475 m) diversity. on a base of both aerial imagery (NAIP and current climatic conditions similar (B) Connectivity between areas 2009) as well as USGS geospatial to those that historically occurred allowing pollinators to move from one quadrangle maps and were mapped around Pagosa Springs, Colorado. site to the next within each plant using NAD 83 Universal Transverse Climatic conditions include suitable population. Mercator (UTM), zone 13N coordinates. precipitation; cold, dry springs; and (C) Availability of other floral Location information came from a wide winter snow. resources, such as other flowering plant array of sources. The maps in this entry, (iii) Plant community. species that provide nectar and pollen as modified by any accompanying (A) Suitable native plant communities for pollinators. Grass species do not regulatory text, establish the boundaries (as described in paragraph (2)(iii)(B) of provide resources for pollinators. of the critical habitat designation. The this entry) with small (less than 100 ft2 (D) A 3,280-ft (1,000-m) area beyond coordinates or plot points or both on occupied habitat to conserve the (10 m2)) or larger (several hectares or which each map is based are available pollinators essential for plant acres) barren areas with less than 20 to the public on http://regulations.gov at reproduction. Docket No. FWS–R6–ES–2011–0040, on percent plant cover in the actual barren (v) Appropriate disturbance regime. areas. our Internet site (http://www.fws.gov/ (A) Appropriate disturbance levels— mountain-prairie/species/plants/ (B) Appropriate native plant Light to moderate, or intermittent or 3ColoradoPlants/index.html), and at the communities, preferably with plant discontinuous disturbances. Western Colorado Ecological Services communities reflective of historical (B) Naturally maintained disturbances community composition, or altered through soil erosion or human- Office, 764 Horizon Drive, Suite B, habitats which still contain components maintained disturbances that can Grand Junction, CO 81506–3946. of native plant communities. These include light grazing, occasional ground (5) Note: Index map of critical habitat plant communities include: clearing, and other disturbances that are for Ipomopsis polyantha follows: (1) Barren shales; not severe or continual. BILLING CODE 4310–55–P

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(6) Unit 1: Dyke, Archuleta County, Colorado. Note: Map of Unit 1 of critical habitat for Ipomopsis polyantha follows:

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(7) Unit 2: O’Neal Hill Special Colorado. Note: Map of Unit 2 of critical Botanical Unit, Archuleta County, habitat for Ipomopsis polyantha follows:

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(8) Unit 3: Pagosa Springs, Archuleta of critical habitat for Ipomopsis polyantha is provided at paragraph (9) County, Colorado. Note: Map of Unit 3 of this entry.

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(9) Unit 4: Eight Mile Mesa, Archuleta and 4 of critical habitat for Ipomopsis County, Colorado. Note: Map of Units 3 polyantha follows:

* * * * * Dated: July 24, 2012. Rachel Jacobson, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2012–18833 Filed 8–10–12; 8:45 am] BILLING CODE 4310–55–C

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