Federal Register / Vol. 75, No. 120 / Wednesday, June 23, 2010 / Proposed Rules 35721

For further information on how to DEPARTMENT OF THE INTERIOR Office, 764 Horizon Drive, Building B, submit comments, please see today’s Grand Junction, CO 81506-3946; immediate final rule published in the Fish and Wildlife Service telephone 970-243-2778, extension 26; ‘‘Rules and Regulations’’ section of this fax 970-245-6933. If you use a Federal Register. 50 CFR Part 17 telecommunications device for the deaf (TDD), call the Federal Information FOR FURTHER INFORMATION CONTACT: [Docket No. FWS-R6-ES-2010-0015] [MO 92210-0-0008-B2] Relay Service (FIRS) at 800-877-8339. Robin Biscaia, RCRA Waste SUPPLEMENTARY INFORMATION: Management Section, Office of Site RIN 1018-AV83 Remediation and Restoration (OSRR 07– Public Comments 1), EPA New England—Region 1, 5 Post Endangered and Threatened Wildlife We intend that any final action Office Square, Suite 100, Boston, MA and Plants; Listing Ipomopsis resulting from this proposed rule will be 02109–3912, telephone number: (617) polyantha (Pagosa Skyrocket) as based on the best scientific and Endangered Throughout Its Range, 918–1642; fax number: (617) 918–0642, commercial data available and be as and Listing Penstemon debilis e-mail address: [email protected]. accurate and as effective as possible. (Parachute Beardtongue) and Phacelia Therefore, we request comments or SUPPLEMENTARY INFORMATION: In the submutica (DeBeque Phacelia) as information from the public, other ‘‘Rules and Regulations’’ section of this Threatened Throughout Their Range government agencies, the scientific Federal Register, EPA is authorizing AGENCY: Fish and Wildlife Service, community, industry, or any other these changes by an immediate final Interior. interested party concerning this rule. EPA did not make a proposal prior ACTION: Proposed rule. proposed rule. We particularly seek to the immediate final rule because we comments concerning: believe this action is not controversial SUMMARY: We, the U.S. Fish and (1) Biological, commercial trade, or and do not expect adverse comments Wildlife Service (Service), propose to other relevant data concerning any that oppose it. We have explained the list Ipomopsis polyantha (Pagosa threats (or lack thereof) to these species reasons for this authorization in the skyrocket), a plant species from and regulations that may be addressing preamble to the immediate final rule. southwestern Colorado, as endangered those threats; Unless we get written adverse throughout its range, and Penstemon (2) Additional information concerning comments which oppose this debilis (Parachute beardtongue) and the range, distribution, and population authorization during the comment Phacelia submutica (DeBeque phacelia), sizes of these species, including the period, the immediate final rule will two plant species from western locations of any additional occurrences become effective on the date it Colorado, as threatened throughout their of these species; (3) Any information on the biological establishes, and we will not take further ranges under the Endangered Species Act of 1973, as amended (Act). This or ecological requirements of these action on this proposal. If we get species; comments that oppose this action, we proposal, if made final, would extend the Act’s protections to these species (4) Current or planned activities in the will withdraw the immediate final rule areas occupied by these species and and it will not take immediate effect. throughout their ranges. The Service seeks data and comments from the possible impacts of these activities on We will then respond to public public on this proposal. these species; comments in a later final rule based on (5) Which areas would be appropriate this proposal. You may not have another DATES: We will consider comments as critical habitat for these species and opportunity for comment. If you want to received or postmarked on or before why they should be proposed for August 23, 2010. We must receive comment on this action, you should do designation as critical habitat; and requests for public hearings, in writing, so at this time. (6) The reasons why areas should or at the address shown in the FOR FURTHER should not be designated as critical Dated: June 8, 2010. INFORMATION CONTACT section by August habitat as provided by section 4 of the Ira W. Leighton, 9, 2010. Act (16 U.S.C. 1531 et seq.), including Acting Regional Administrator, EPA New ADDRESSES: You may submit comments whether the benefits of designation England. by one of the following methods: would outweigh threats to these species • [FR Doc. 2010–15256 Filed 6–22–10; 8:45 am] Federal eRulemaking Portal: http:// that designation could cause, such that BILLING CODE 6560–50–P www.regulations.gov. Follow the the designation of critical habitat is instructions for submitting comments prudent. on Docket No. FWS-R6-ES-2010-0015. You may submit your comments and • U.S. mail or hand-delivery: Public materials concerning this proposed rule Comments Processing, Attn: [FWS-R6- by one of the methods listed in the ES-2010-0015]; Division of Policy and ADDRESSES section. We will not Directives Management; U.S. Fish and consider comments sent by e-mail or fax Wildlife Service; 4401 N. Fairfax Drive, or to an address not listed in the Suite 222, Arlington, VA 22203. ADDRESSES section. We will post all comments on http:// We will post your entire comment— www.regulations.gov. This generally including your personal identifying means that we will post any personal information—on http:// information you provide us (see the www.regulations.gov. If you provide Public Comments section below for personal identifying information in your more information). hardcopy comments, you may request at FOR FURTHER INFORMATION CONTACT: the top of your document that we Patty Gelatt, Acting Western Colorado withhold this information from public Supervisor, U.S. Fish and Wildlife review. However, we cannot guarantee Service, Ecological Services Field that we will be able to do so. We will

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post all hardcopy comments on http:// candidate categories and to restrict originally described by Rydberg (1904, www.regulations.gov. candidate status to those taxa for which p. 634) as Gilia polyantha. Grant (1956, Comments and materials we receive, we have sufficient information to p. 353) moved the species into the genus as well as supporting documentation we support issuance of a proposed rule on Ipomopsis. Two varieties,G. polyantha used in preparing this proposed rule, December 5, 1996 (61 FR 64481), This var. brachysiphon and G. polyantha var. will be available for public inspection resulted in the deletion of Ipomopsis whitingii, were recognized by Kearney on http://www.regulations.gov, or by polyantha from the list of candidate taxa and Peebles (1943, p. 59). Currently appointment, during normal business for listing. Since 1996, threats to the available information indicates that I. hours, at the U.S. Fish and Wildlife species have become more numerous polyantha is a distinct species (Porter Service, Western Colorado Ecological and more widespread. We added the and Johnson 2000; Porter et al. 2003 in Services Field Office (see FOR FURTHER species to the list of candidates again in Anderson 2004, p. 11). It is treated as INFORMATION CONTACT section). the 2005Candidate Notice of Review such in the PLANTS database (United Final promulgation of the regulations (CNOR) (70 FR 24873, May 11, 2005) States Department of Agriculture concerning the listing of these species with a listing priority number (LPN) of (USDA)/Natural Resource Conservation will take into consideration all 2. Candidates are taxa for which we Service (NRCS) 2003), and in the comments and additional information have sufficient information on Integrated Taxonomic Information that we receive, and may lead to a final biological vulnerability and threats to System (2001). regulation that differs from this support preparation of a listing Ipomopsis polyantha is an herbaceous proposal. proposal, but for which development of biennial 12 to 24 inches (in.) (30 to 60 a listing regulation is precluded by other centimeters (cm)) tall, branched from Species Information and Factors higher priority listing activities. near the base above the basal rosette of Affecting the Species Candidate species are assigned an LPN leaves. Deeply divided leaves with Section 4 of the Act (16 U.S.C. 1533) (1-12, with 1 being the highest priority) linear segments are scattered up the and implementing regulations (50 CFR based on magnitude and immediacy of stem. Stems and flower clusters are 424) set forth the procedures for adding threats and taxonomic status. A listing covered with glandular hairs. Flower species to the Federal Lists of priority of 2 reflects threats that are clusters are along the stem in the axils Endangered and Threatened Wildlife imminent and high in magnitude, as of the leaves as well as at the top of the and Plants. Under section 4(a)(1) of the well as the taxonomic classification of I. stem. The white flowers are 0.4 in. (1 Act, a species may be determined to be polyantha as a full species. We cm) long, with short corolla tubes 0.18 endangered or threatened based on any published a complete description of our to 0.26 in. (0.45 to 0.65 cm) long, and of the following five factors: (A) The listing priority system in the Federal flaring corolla lobes flecked with purple present or threatened destruction, Register (48 FR 43098, September 21, dots (Anderson 1988, p. 3). These dots modification, or curtailment of its 1983). are often so dense that they give the flower a pinkish or purplish hue. The habitat or range; (B) overutilization for Species Information commercial, recreational, scientific, or stamens extend noticeably beyond the educational purposes; (C) disease or Ipomopsis polyantha is a rare plant flower tube, and the pollen is blue predation; (D) the inadequacy of endemic to shale outcrops in and (Grant 1956, p. 353), changing to yellow existing regulatory mechanisms; or (E) around Pagosa Springs in Archuleta as it matures (Collins 1995, p. 34). First- other natural or manmade factors County, Colorado. Suitable habitat for year plants form basal rosettes of leaves. affecting its continued existence. the species is identified on about 191 These rosettes produce flowering stalks Below is a species-by-species analysis acres (ac) (77 hectares (ha)) on the east during the next growing season, or they of these five factors. The species are edge of town, and on about 23 ac (9 ha) may persist for more than 1 year considered in the following order: approximately 10 miles (mi) (16 without flowering, until they get enough Ipomopsis polyantha, Penstemon kilometers (km)) west of town. moisture to flower Plants produce debilis, and Phacelia submutica. Approximately 9 percent of the suitable abundant fruits and seeds, but have no habitat is on land managed by the known mechanism for long distance Background—Ipomopsis polyantha Bureau of Land Management (BLM) dispersal (Collins 1995, pp. 111–112). land, 12 percent on State and County Previous Federal Actions After seeds are mature, the plants dry highway rights-of-way (ROWs), 78 up and die. We first identified Ipomopsis percent on private lands, and less than Pollination by bees is the most polyantha as a taxon under review in 1 percent on Pagosa Springs park land common means of reproduction for the 1983 Supplement to Review of Plant and county land (Colorado Natural Ipomopsis polyantha, and the primary Taxa for Listing as Endangered or Areas Program (CNAP) 2007, pp. 1-5; pollinators are a honey bee (Apis Threatened Species (48 FR 53640, Lyon 2005, pp. 1-5; Lyon 2006a, pp. 1- mellifera), metallic green bee November 28, 1983). In that document, 2; Lyon 2006b, p. 1). (Augochlorella spp.), bumble bee we included the species as a Category 2 The Colorado Natural Heritage (Bombus spp.), and digger bee candidate, based on our evaluation at Program (CNHP) ranks Ipomopsis (Anthophora spp.) (Collins 1995, pp. 71- that time. Category 2 candidate species polyantha as critically imperiled 72). were formerly defined as ‘‘taxa for globally (G1) and in the State of Ipomopsis polyantha is limited to which information now in the Colorado (S1) (CNHP 2006a, p. 1). The Pagosa-Winifred soils derived from possession of the Service indicates that Nature Conservancy (TNC) and CNHP Mancos Shale. The soil pH is nearly proposing to list the taxa as Endangered also developed a scorecard that ranks I. neutral to slightly alkaline (6.6 to 8.4). or Threatened species is possibly polyantha among the most threatened The elevation range is 6,800 to 7,300 appropriate, but for which sufficient species in the State based on number of feet (ft) (2,072 to 2,225 meters (m)). data on biological vulnerability and plants, quality of the plants and habitat, Plants occur in discontinuous colonies threat(s) are not currently known or on threats, and adequacy of protection as a pioneer species on open shale or as file to support proposed rules’’ (48 FR (CNHP and TNC 2008, p. 102). a climax species along the edge of 53641, November 28, 1983). We Ipomopsis polyantha is in the ponderosa pine/juniper/oak forested published our decision to discontinue Polemoniaceae (phlox) family and was areas. In 1988, Anderson (p. 7) reported

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finding the highest densities under of habitat that may support I. polyantha. another occurrence was documented in ponderosa pine forests with montane The model has not been ground-truthed a rural area called Mill Creek, about 1.2 grassland understory. Now the species in the field. Unsuitable habitat is found mi (1.9 km) east of Pagosa Springs is found mostly on sites that are at elevations and on soils that do not fit (Anderson 2004, p. 13; CNHP 2008a, ID infrequently disturbed by grazing, such the profile for the species, or habitat that 228). The Mill Creek area is now as road rights-of-way (ROWs) that are has been altered by development, included in the Pagosa Springs fenced from grazing (as opposed to open paving, or other human activities so that occurrence, in accordance with range), lightly grazed pastures, and the plants are prevented from growing NatureServe criteria: occurrences are undeveloped lots (Anderson 2004, p. there. separated by at least 0.62 mi (1 km) of 20). There are two known occurrences of unsuitable habitat or 1.24 mi (2 km) of Habitat for the species is Ipomopsis polyantha. Between its characterized as suitable, potential, or description by C.F. Baker in 1899, and suitable habitat (NatureServe 2004, p. unsuitable. Suitable habitat has the inventories in 1985, I. polyantha was 1). The two known occurrences are attributes of soil and elevation described only known from along U.S. Route 84 within about 13 mi (21 km) of each above, and we further separate it into (US 84) in the vicinity of Pagosa other, and collectively occupy occupied habitat where the plants have Springs, Colorado (Anderson 1988, pp. approximately about 50 ac (20 ha) of been observed and unoccupied habitat 1–2, 15–16). The Pagosa Springs habitat within a range that includes where soil and elevation are suitable but occurrence is still the largest occurrence about 4 square mi (10.4 square km). no plants have been observed or no of the species. In 1985, an additional Table 1 summarizes known occupied surveys have been conducted. Potential occurrence was found about 10 mi (16 habitat (50 ac (20 ha)) combined with habitat is identified remotely, using km) west of town along U.S. Route 160 suitable habitat not verified as occupied aerial photographs, soil maps, and other (US 160) in a rural area called Dyke within the two I. polyantha occurrences available information, to build a model (Anderson 1988, pp. 1–2). In 2002, (total 234 ac (94 ha)).

TABLE 1. OCCUPIED AND UNSURVEYED SUITABLE HABITAT FOR Ipomopsis polyantha (CNAP 2007, PP. 1–5; LYON 2005, P. 1; LYON 2006A, P. 1–2; MAYO 2008A, P. 1; CNHP 2008A, ID 228)

Flowering Occurrence Land Ownership ac (ha) Plants Rosettes

Pagosa Springs including Mill Creek State ROW 19 (7.7) 3,029 3,083

County ROW 3 (1.2) 126 NA

Archuleta County 1 (0.4) 280 NA

Town of Pagosa Springs 1 (0.4) 3 15

Private (suitable) 184 (74) Unsurveyed NA

Private Corporation 3 (1.2) 156,126 173,189

Subtotals 211 (85) 159,564 176,287

Dyke State ROW 3 (1.2) 141 176

BLM 20 (8) 88 164

Subtotals 23 (9) 229 340

Totals All 234 (94) 159,793 176,627

The total occupied and surveyed exists on private residential and habitat is close to or surrounded by habitat for Ipomopsis polyantha covers agricultural land where plants have suitable habitat, and is currently about 50 ac (20 ha). Suitable habitat for been observed from a distance, but proposed for development, including: the species has been identified on about surveys have not been conducted. Blue Sky Village 96 ac (39 ha); Blue Sky 211 acres (ac) (85 hectares (ha)) on the Without access to these private lands, Ranch 1,362 ac (551 ha); and Fairway east side of town, and on about 23 ac (9 the extent of occupancy cannot be 560 ac (227 ha) (see Threat Factor A ha) approximately 10 miles (mi) (16 assessed. below). kilometers (km)) west of town. The historical range of Ipomopsis None of the potential habitat Approximately 9 percent of the suitable polyantha is unknown, but likely identified to date extends beyond the habitat is on federally owned Bureau of included a much broader area than the approximately 4-square-mi (10.4-square- Land Management (BLM) land, 12 currently occupied habitat. Many km) occupied range of the species. percent on State and County highway surveys of potential habitat in the Reports of this species occurring in ROWs, 78 percent on private lands, and Pagosa Springs area have been Arizona and New Mexico by the less than 1 percent on Pagosa Springs conducted over the years with negative PLANTS National Database and State Town park land and county land results. Potential habitat on about 2,018 floras actually pertain to the two species (Colorado Natural Areas Program ac (817 ha) within the known range has that were formerly treated as varieties of (CNAP) 2007). An estimated 184 ac (74 not been surveyed due to lack of access Ipomopsis polyantha (Anderson 2004, ha), or 79 percent, of the suitable habitat to private lands. All of this potential pp. 11, 15).

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The Pagosa Springs occurrence of 1). The approximately 20-ac (8-ha) BLM 2008, p. 1). In 2005, when most Ipomopsis polyantha is southeast of the parcel is the only federally managed residences were new, about 782 town along both sides of US 84. habitat for the species. There, in 2006, flowering plants were counted in Occupied habitat extends southward on 88 flowering plants and 164 rosettes meadows and along the fences and the highway ROW for 3 mi (4.8 km) were found in clearings among access roads (Lyon 2005, pp. 1–2). By from the intersection with US 160, and ponderosa pine and shrubs (CNAP 2007, 2008, an increased number of horses on private lands on both sides of the p. 2). were pastured in the meadows, highway within 0.25 to 1.2 mi (0.4 to 1.9 In addition to these extant roadsides and driveways were graded or km). In 1985, the estimated number of occurrences, about 13 plants and 18 widened, and few plants could be found flowering plants in this occurrence was rosettes were found on a roadside in a as a result (Mayo 2008b, p. 1). This 2,000 (Anderson 1988, p. 8). During residential area north of Pagosa Springs information indicates that Ipomopsis 2005-2006, 3,029 flowering plants and in 2005. We do not consider this polyantha plants are vulnerable to 3,083 rosettes were counted on about 19 occurrence as extant, because no plants grazing and road improvements, and ac (7.7 ha) of highway ROW and have been found there since 2005. habitat can be modified to exclude immediately adjacent private lands Surveys of roadsides and private lands plants in as few as 3 years. In 2006, at (CNAP 2007, pp. 1–5; Lyon 2005, p. 1; in this vicinity, and on additional another location along US 84, a private Lyon 2006a, pp. 1–2). In 2005, an potential habitat north of town, have not landowner mowed several hundred feet additional 156,126 plants and 173,189 detected any individuals of the species of occupied habitat on the highway rosettes were found on a 3-ac (1.2-ha) (Lyon 2005, p. 3). ROW (Lyon 2006a, p. 1). No plants were private land site, which was a high In 2004, the total estimate of found at this site from 2006 to 2008, density of plants on a site where no flowering plants throughout the entire indicating that mowing destroys plants plants had been observed in previous range of the species was 2,246 to 10,526 and halts reproduction. In 2005, dense years (Lyon 2005, pp. 3–4; Lyon 2007b, (Anderson 2004, p. 40). Plant surveys patches of flowering plants were noted, p. 1). The plants were found on a from 2005 to 2007 document dramatic from across the fence, in a privately hillside of Mancos Shale about 7 years increases in the number of flowering owned meadow along US 84. In 2007, after it was bladed, and are still growing individuals and rosettes within the a new home was built, and the meadow there because the ground has not been Pagosa Springs occurrence at two sites was mowed; no plants could be seen at disturbed during the growing season on private land and on the US 84 ROW the same site in 2008 (Mayo 2008b, p. (Lyon 2007b, p. 2). I. polyantha quickly (CNAP 2007, pp. 1–2). Currently, the 2), again indicating that mowing colonizes unvegetated Mancos Shale total estimate of flowering plants is destroys plants and inhibits near a seed source. The number of 159,793 (see Table 1 above). This reproduction. During 2005 and 2006, a flowering plants that appear in increase is primarily attributed to the sewer line installation on the US 84 subsequent years depends on seed plants surveyed in 2005 and 2006 on the ROW resulted in the loss of about 498 production and the survival of rosettes 3-ac (1.2-ha) private land site in the plants and 541 rosettes, and that are not outcompeted by other Pagosa Springs occurrence. The rapid modification of about 1,473 ft (449 m) species or destroyed during ground appearance of such a dense patch of of roadside habitat (Mayo 2008c, p. 8). disturbance. plants illustrates the specie’s ability to The Colorado Department of In addition to the surveyed plants and colonize barren Mancos Shale soil, and Transportation (CDOT) and Archuleta rosettes, many flowering Ipomopsis demonstrates the reproductive success County consulted with us, and agreed polyantha plants have been seen, but of the species; however, the sites where on avoidance measures for this project, not counted, on private residential/ they grow are vulnerable to habitat but contractors failed to follow the agricultural parcels along US 84 (Lyon destruction. The trend in the species’ protocol (Mayo 2008c, pp. 1–4). In 2008, 2006a, p. 1). An estimated 184 ac (74 ha) status since 1988 is one of fluctuating only a few flowering plants and rosettes of unsurveyed suitable habitat on population size that is typical of were found at this site; all of the plants private lands exist within the Pagosa biennial species, combined with the loss were in one spot near plants on an Springs occurrence. of some plants due to development. The Dyke occurrence includes 0.5 mi adjacent property not disturbed by the (0.8 km) of highway ROW on both sides Summary of Factors Affecting sewer line project (Mayo 2008c, p. 8). of US 160, adjacent private land, and Ipomopsis polyantha This incident demonstrates that I. about half of a 40-ac (16-ha) BLM parcel polyantha cannot quickly recover from A. The Present or Threatened on the north side. On both of the ROWs soil disturbance. Destruction, Modification, or and adjacent pastures, more than 500 Utility installations and construction flowering plants were estimated in 1985 Curtailment of Its Habitat or Range activities can eliminate habitat and (Anderson 1988, p. 10). In 1991, about Ipomopsis polyantha is threatened destroy Ipomopsis polyantha. As a 250 plants were counted in unused with destruction of plants and habitat result of careful planning, in 2007, pasture on the south side, but no plants due to commercial, residential, and power line maintenance was completed were found in subsequent years after agricultural property development, and within occupied habitat in the Pagosa cattle were returned to the pasture associated new utility installations and Springs occurrence with negligible (Collins 1995, pp. 111–112). The access roads. We have documented damage to adult plants. Rosettes in the number of flowering plants and rosettes recent losses of habitat and individuals path of maintenance actions were on the US 160 ROW have fluctuated at six sites within the Pagosa Springs transplanted to suitable habitat in the each year between 2005 and 2008. On occurrence of the species, as described town park. The 278 transplants survived the north side ROW, the number of in more detail below. the winter and produced about 27 flowering plants and rosettes declined Within the Pagosa Springs flowering plants. However, no surviving by 80 percent over the 4 years, to 9 and occurrence, a residential and rosettes could be relocated in the fall 8 respectively. On the south side ROW, agricultural development of about a (Coe 2007, pp. 2–3). A second attempt flowering plants increased 176 percent dozen 35-ac (14-ha) parcels was built at transplanting rosettes to save them (to 141 plants), and rosettes declined 9 prior to 2005 on occupied habitat east from destruction during utility percent (to 179 rosettes) (Mayo 2008a, p. of US 84 (Archuleta County Assessor installations also has not been effective

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in producing new rosettes in the third Ipomopsis polyantha plants, and south along US 84 in occupied year (Brinton 2007, pers. comm.). includes about 2,562 ft (781 m) of Ipomopsis polyantha habitat. This Unless effective methods are developed, potential habitat on US 84 frontage at route, prioritized for completion as soon most plants that cannot be avoided the center of the species’ distribution as funding is available, would eliminate during utility installations and (Archuleta County Assessor 2008, p. 1). about 50 percent of the occupied habitat construction activities are unlikely to Occupied habitat also borders the on the highway ROW and 80 percent of survive and reproduce. Whether the southern edge of the property. Reducing the total occupied area in the Pagosa species can survive translocation under habitat available to the Pagosa Springs Springs occurrence (see Table 1 above). other circumstances remains uncertain. occurrence of I. polyantha will limit its Another planned paved bike trail, Primary land use within the range of ability to disperse and repopulate after parallel to US 160 and through the Dyke Ipomopsis polyantha has historically impacts. occurrence of I. polyantha, is on the low been agricultural, with homes and In addition to the loss of potential priority list in the Trails Plan (Archuleta horses or cattle on parcels of 35 ac (14 habitat on private land for the plants, County and Town of Pagosa Springs ha) or more. Several small businesses the proposed annexation will require 2004, p. 28). Development of this bike now occur along US 84 within the access roads, utility installations, and trail would eliminate the portion of the Pagosa Springs occurrence. The acceleration and deceleration lanes Dyke occurrence located on the south intersection of US 160 and US 84 is along the highway ROW. Plants and side of the highway where the trail zoned by the Town of Pagosa Springs habitat will likely be destroyed by this would be located. for businesses, and commercially zoned infrastructure construction. The Blue Distribution of Ipomopsis polyantha land is currently available for Sky Village development will on highway ROWs makes this species development. The County is also significantly reduce the amount of susceptible to threats associated with considering sites in this area for new potential habitat within the species’ highway activities and maintenance. municipal buildings; one of the sites range. Location of the development Exotic grasses planted by CDOT along under consideration contains the between the highest density of plants roadsides dominate the ROW between highest density of I. polyantha and the rest of the Pagosa Springs pavement and ditch, limiting most I. occurrence. These current and potential occurrence on the east side of US 84 polyantha plants to the ROW bank conversions of agricultural lands to will further fragment the habitat that has between ditch and fence. This limitation residential and commercial already been impacted by commercial, to the species’ habitat along roadsides is development are incompatible with residential, and agricultural land uses. significant because so little habitat conservation of I. polyantha in the long The Blue Sky Ranch development of exists elsewhere for the species. I. term because they cause direct mortality 1,362 ac (551 ha), plus 2,819 ft (859 m) polyantha plants growing among and permanent loss of habitat, whereas of US 84 frontage, is another annexation thistles were killed by herbicide within habitat modified by grazing may be being considered within potential the highway ROW along US 84 in 2004, recovered by changes in management. Ipomopsis polyantha habitat. This when the thistles were treated with The privately owned property across project would include single and multi- herbicide (Anderson 2004, p. 36). Since the entire range of Ipomopsis polyantha family residential housing, a hotel and that time, Archuleta County has was scheduled for development in the conference center, a golf course with discontinued broadcast herbicide use Archuleta County and Town of Pagosa clubhouse, and an equestrian center and mowing on ROWs within the Springs Community Plan (2000). In this with riding trails and a multi-use arena species’ range. However, the planted plan, all areas occupied by I. polyantha (Aragon 2008b, p. 2). exotic grasses continue to limit the on private land outside of the Town A development of 560 ac (227 ha), species’ habitat. limits are planned for low (35 ac (14 including about 1 mi (1.6 km) of Highway ROWs provide about 50 ha)), medium (3 to 35 ac (1.2 to 14 ha)), frontage along the west side of US 84, percent of the occupied habitat for or high (2 to 5 ac (0.81 to 2 ha)) density also is being considered for annexation Ipomopsis polyantha. All highway ROW housing. Residential development is within potential habitat that has not habitat is at risk of disturbance by increasing rapidly in the County. The been surveyed for plants (Aragon 2008a, construction of new access roads or population of Archuleta County was p. 2; Archuleta County Assessor 2008, p. acceleration lanes, bike paths, and 5,000 in 1990; the projection is 15,000 1). utilities installation or maintenance. people by 2010 and 20,000 by 2020 The above three development Such construction results in direct loss (Archuleta County and Town of Pagosa proposals within the Pagosa Springs of I. polyantha individuals or reduced Springs 2000, pp. 5–7). Based on the occurrence cover a total of 2,018 ac (817 suitability of its habitat by altering the rate of current and proposed ha) of potential habitat for the plants soil characteristics or displacing the development over the entire range of the that have not been surveyed due to seed bank (Anderson 2004, p. 36). species, 85 percent of occupied and restricted access. The proposed We determined that the present and suitable habitat and all potential habitat developments include frontage along threatened destruction, modification, could be modified or destroyed within the US highway 84 ROW that currently and fragmentation of Ipomopsis 5 to 10 years, putting the species at risk provides 34 percent of the total habitat polyantha habitat from ongoing of extinction. occupied by the plants (Archuleta commercial and residential The County plan for agricultural and County 2008, p. 1). Plants and habitat development, associated new utility large-lot residential development along on this ROW are likely to be disturbed installations, construction of new access US 84 became obsolete in 2008, with the or removed by construction of new roads and bike paths, competition from Pagosa Town Council’s preliminary access roads, acceleration lanes, and introduced roadside grasses and other approval of a 96-ac (39-ha) Blue Sky utilities to accommodate the impacts associated with proximity to Village annexation (Aragon 2008a, pp. development. highways are significant and imminent 1–2). The proposed development plan is The Archuleta County and Town of threats to the species throughout its for a mixed commercial and high-to-low Pagosa Springs revised 2004 Trails Plan range. At this time, the species density residential village (Hudson (2004, p. 18) calls for an 8-ft (2.4 m) primarily persists on highway ROWs 2008, p. 1). The 96-ac (39-ha) parcel is wide, 2.5-mi (4 km) long, paved bike and private lands scheduled for adjacent to the highest density of path on the highway ROW from US 160 development. Development planned for

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the next 5 to 10 years will likely: (1) species may be compatible with light Service (USFS) and the BLM (USFS Impact over 2,000 ac (809 ha) of grazing, but the level of impact and the 2009, p. 6; BLM 2008b, p. 47). Occupied potential habitat; (2) potentially threshold of species’ tolerance have not habitat has not been found on USFS eliminate 167 of the 214 ac (68 of 87 ha) been studied. Evidence indicates that land. In 2006, we learned that the Dyke of existing occupied and suitable habitat few plants persist in areas of continual occurrence extends onto 20 ac (8 ha) of on private lands; and (3) potentially grazing (Collins 1995, pp. 107, 111, BLM land (Lyon 2007b, pp. 3, 12, 13); eliminate about 34 percent of the 112). We determined that destruction of 88 plants and 164 rosettes were found highway ROW (occupied) habitat. flowering plants, rosettes, and seeds due there in 2007 (CNAP 2007, p. 2). This Combined, these impacts would relegate to heavy livestock use is a significant BLM parcel was withdrawn from a the species primarily to small, and imminent threat to I. polyantha. proposed land exchange so that the plant habitat would remain under fragmented portions of highway ROWs D. The Inadequacy of Existing Federal management (Brinton 2009, and a few, small, lightly-used private Regulatory Mechanisms pastures putting the species in danger of pers. comm.; Lyon 2007b, p. 3). The extinction. Local Laws and Regulations species has no Federal regulatory protection for approximately 91 percent B. Overutilization for Commercial, City and county ordinances have the potential to affect Ipomopsis polyantha of the total known occupied and Recreational, Scientific, or Educational suitable habitat. It occurs mostly on Purposes and its habitats. Zoning that protects open space can retain suitable habitat, State and private land (see Table 1 Activities resulting in overutilization and zoning that allows commercial above), and development of these areas of Ipomopsis polyantha plants for development can destroy or fragment will likely require no Federal permit or commercial, recreational, scientific, or habitat. We know of no city or county other authorization. Therefore, projects educational purposes are not known to ordinances that provide for protection that affect it are usually not analyzed exist. Therefore, this factor is not or conservation of I. polyantha or its under the National Environmental addressed in this proposal. habitat. Archuleta County road Policy Act (NEPA)(42 U.S.C. 4321 et seq.). C. Disease or Predation maintenance crews refrain from mowing or broadcast spraying ROWs within the We determined that the inadequacy of Disease range of Ipomopsis polyantha existing regulatory mechanisms is a significant and imminent threat to Disease is not known to affect voluntarily, that is, without the mandate or support of regulations. However, Ipomopsis polyantha, because 91 Ipomopsis polyantha. Therefore, disease percent of the known range of the is not addressed in this proposal. there is no law, regulation, or policy requiring them to do so. species is on State and private lands Predation New annexation of 2,018 ac (817 ha) that carry no protective regulations to into the Town of Pagosa Springs will ameliorate activities that will impact the This species is threatened by species. destruction of flowering plants, rosettes, change land use from 35-ac (14-ha) and seeds due to concentrated livestock agricultural parcels to commercial and E. Other Natural or Manmade Factors disturbance and some herbivory. small lot residential, with anticipated Affecting Its Continued Existence adverse impacts to the Pagosa Springs Observations of the ‘‘fence line effect’’— The adaptation of Ipomopsis healthy plants outside the fence and occurrence of I. polyantha. This land use conversion, as described in Factor A polyantha to Pagosa-Winifred soils impacted plants inside the fence—at derived from Mancos Shale limits it to several locations on private land used above, is the most significant threat to the species, because development about 4 square mi (10.4 square km) for cattle and horse grazing indicate that planned for the next 5 to 10 years will within a 13-mi (21-km) range of Ipomopsis polyantha does not tolerate likely impact all known potential fragmented habitat on outcrops of intensive livestock grazing (Anderson habitat and 17 of 25 ROW acres (6.9 of Mancos Shale. The species has specific 2004, p. 30). For example, grazing by 10 ha), and relegate the species to physiological requirements for horses at a residential/agricultural private residential areas and small, germination and growth that may development within the Pagosa Springs fragmented portions of highway ROWs. prevent its spread to other locations occurrence in 2005 resulted in few I. (Anderson 2004, pp. 23–24). In polyantha plants 3 years later (Mayo State Laws and Regulations greenhouse trials, seeds will germinate 2008b, p. 1). Over-the-fence No State regulations protect rare plant and grow on other soils, but they grow observations from seven locations species in Colorado. Ipomopsis much faster on Mancos Shale soils (pastures) in 2009 found few or no polyantha is classified by CNHP as a G1 (Collins 1995, p. 114). Faster growth plants in the three heavily grazed and S1 species, which means it is may give I. polyantha a competitive pastures and numerous plants in the critically imperiled across its entire advantage on relatively barren Mancos adjacent pastures with light or no range and within the State of Colorado shale that it lacks on other soils where grazing (Glenne 2010, pp. 1-3). We have (CNHP 2006a, p. 1). The CDOT has its smaller seedlings have more no data to indicate whether the plant drafted best management practices for competition from other plants for destruction results from herbivory or ROWs within I. polyantha habitat in nutrients and water. The species from trampling. I. polyantha is not collaboration with the Service (Peterson produces more seed when it is cross- found in heavily grazed pastures, but 2008, p. 1). In 2006, voluntary measures pollinated (Anderson 2004, p. 23); occurrences have been observed in to minimize impacts to plants from a therefore, existing and foreseeable lightly grazed horse pastures and sewer line installation along US 84 were fragmentation of habitat may cause gene abandoned pastures (CNAP 2007, p. 6). recommended by CDOT, but not flow to be obstructed. Pollinator- Plants could possibly recolonize a implemented by the contractors (Mayo mediated pollen dispersal is typically pasture if livestock numbers were 2008c, pp. 1–4). limited to the foraging distances of reduced sufficiently and the seed bank pollinators, and no bee species is was still viable, or if there was a seed Federal Laws and Regulations expected to travel more than 1 mi (1.6 source nearby, such as on the ungrazed Ipomopsis polyantha is on the km) to forage (Tepedino 2009, p. 11). side of a fence. Indications are that the sensitive species lists for the U.S. Forest Thus, it is likely that the occurrence of

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about 191 plants west of Pagosa Springs substrate that underlies the entire expeditious progress was being made to is genetically isolated from the other Ipomopsis polyantha habitat likely add qualified species to the Lists (70 FR occurrence several miles (kilometers) limits the ability of the species to adapt 24870, May 11, 2005). away. Spatially isolated plant by shifting occurrences in response to On November 15, 2004, the CNE populations are at higher risk of climatic conditions. issued a 60–day notice of intent to sue extinction due to inbreeding depression, We determined that the natural and for violation of section (4)(b)(3)(A) of the loss of genetic heterogeneity, and human-caused factors of specific soil Act with respect to the petition to list reduced dispersal rates (Silvertown and and germination requirements, Penstemon debilis (CNE 2004b, pp. 1– Charlesworth 2001, p. 185). fragmented habitat, effects of drought 2). On January 25, 2005, Biodiversity Ipomopsis polyantha shows great and climate change, and lack of proven Conservation Alliance and seven other differences in plant numbers from year methods for propagation present an entities filed an amended complaint to year, probably because the plants are imminent and moderate degree of threat regarding our failure to list P. debilis biennial and grow from seed. This trait to Ipomopsis polyantha across the entire and five other species. As part of a makes them more vulnerable than range of the species. settlement agreement, plaintiffs perennials to changes in environment, Background—Penstemon debilis withdrew their lawsuit regarding P. including timing and amount of debilis. moisture, and length of time since Previous Federal Actions In the 2005 CNOR (70 FR 24870), as disturbance. With increased time after We first included Penstemon debilis stated above, the listing priority number disturbance, competition from other for Penstemon debilis was changed from plants, both native and nonnative, as a category 2 candidate species in the February 21, 1990, Review of Plant Taxa 5 to 2 based on an increase in the increases (CNAP 2008a, p. 4). As a intensity of energy exploration along the biennial species, I. polyantha also may for Listing as Endangered or Threatened Species (55 FR 6184). Category 2 Roan Plateau escarpment, making the be vulnerable to prolonged drought. threats to the species imminent (70 FR During drought years, seeds may not candidate species were defined as 24870, May 11, 2005). A listing priority germinate and plants may remain as ‘‘[t]axa for which there is some evidence of 2 represents threats that are both rosettes without flowering or producing of vulnerability, but for which there are imminent and high in magnitude. CNOR a new crop of seeds. not enough data to support listing Climate change could potentially proposals at this time’’ (55 FR 6185, lists published in 2006 and 2007 impact Ipomopsis polyantha. Localized February 21, 1990). In 1996, we maintained P. debilis as a candidate projections indicate the southwest may abandoned the use of numerical species with a listing priority of 2 (71 experience the greatest temperature category designations and changed the FR 53756, September 12, 2006; 72 FR increase of any area in the lower 48 status of P. debilis to a candidate under 69034, December 6, 2007). States (IPCC 2007, p. 30). A 10- to 30- the current definition. We published In each assessment since its percent decrease in precipitation in four CNOR lists between 1996 and 2004, recognition as a candidate species in mid-latitude western North America is and P. debilis remained a candidate 1996, we determined that publication of projected by the year 2050, based on an species with a LPN of 5 on each (62 FR a proposed rule to list the species was ensemble of 12 climate models (Milly et 49398, September 19, 1997; 64 FR precluded by our work on higher al. 2005, p. 1). Climate modeling at this 57534, October 25, 1999; 66 FR 54808, priority listing actions. However, in time has not been refined to the level October 30, 2001; 67 FR 40657, June 13, 2008, we received funding to initiate the that we can predict the amount of 2002). A LPN of 5 is assigned to species proposal to list Penstemon debilis. temperature and precipitation change with non-imminent threats of a high Species Information within the limited range of I. polyantha. magnitude. Therefore, this analysis is speculative On March 15, 2004, the Center for Penstemon debilis is a rare plant, based on what the data indicate at this Native Ecosystems (CNE) and the endemic to oil shale outcrops on the time. When plant populations are Colorado Native Plant Society Roan Plateau escarpment in Garfield impacted by reduced reproduction petitioned us to list Penstemon debilis County, Colorado. This species is during drought years, they may require (CNE 2004a, p. 1). We considered the known by the common names Parachute several years to recover. Climate change information provided in their petition beardtongue and Parachute penstemon. may exacerbate the frequency and when we prepared the 2004 CNOR. In P. debilis is classified by the CNHP as intensity of droughts in this area and the 2004 CNOR, P. debilis remained a a G1 and S1 species, which means it is result in reduced species’ viability as candidate species with a listing priority critically imperiled across its entire the dry years become more common. As of 5 (69 FR 24876, May 4, 2004). range and within the State of Colorado described above, I. polyantha is On May 11, 2004, we received a (CNHP 2008b, p. 14). The total sensitive to the timing and amount of petition from the Center for Biological estimated number of known plants is moisture due to its biennial life history. Diversity (CBD) to list 225 species we approximately 4,000 individuals (CNHP Thus, if climate change results in local previously had identified as candidates 2006b, p. 1; CNHP 2009a, p. 1; CNHP drying, the species could experience a for listing, including Penstemon debilis 2009b, p. 1; CNHP 2009c, p. 1; CNHP reduction in its reproductive output. (CBD 2004, p. 6). Under requirements in 2009d, p. 2). Approximately 82 percent Recent analyses of long-term data sets section 4(b)(3)(B) of the Act, the CNOR of the known plants are on private land show accelerating rates of climate and Notice of Findings on Resubmitted owned by a natural gas and oil shale change over the past two or three Petitions published on May 11, 2005 (70 production company. Most of the decades, indicating that the extension of FR 24870), raised the LPN of P. debilis remaining 18 percent occur in one species’ geographic range boundaries from 5 to 2 but also included a finding occurrence on BLM land that was towards the poles or to higher elevations that the immediate issuance of a recently leased under a new Resource by progressive establishment of new proposed listing rule and the timely Management Plan (RMP) amendment local occurences will become promulgation of a final rule for each of (BLM 2008a, Record of Decision (ROD) increasingly apparent in the short term 225 petitioned species, including P. p. 2). In recent years, energy (Hughes 2000, p. 60). The limited debilis, was warranted but precluded by development has increased in this area geographic range of the Mancos Shale higher priority listing actions, and that on both private and Federal lands.

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Traditionally Penstemon has been anthropogenic disturbance was very It is likely that unknown occurrences included in the Scrophulariaceae high as recently as 1994 (McMullen exist, because many areas are simply (figwort family). Phylogenetic studies 1998, p. 82). One occurrence was inaccessible to surveyors due to steep based on DNA sequences of taxa in this recorded to have several hundred terrain or private land ownership or and related plant families over the last individuals in 1994, but no individuals both. 10 years have necessitated realignment can be found at this site today Penstemon debilis occurs at seven of several genera in these groups. Apart (McMullen 1998, p. 82). This may be a known occurrences, four of which are from a nomenclatural discrepancy, result of a reduction in the disturbance rated by CNHP as having ‘‘good to Penstemon has been shown to be a part levels through successional processes excellent’’ estimated viability based on of the Plantaginaceae (plantain) family, such as soil development and increased population size, individual plant sizes, since 2001. The chronology and vegetative cover (McMullen 1998, p. and site ecology (CNHP 2006b, p. 1; summary of the placement of 82). Penstemon debilis may be CNHP 2009a, p. 1; CNHP 2009b, p. 1; Penstemon in the Plantaginaceae is considered a pioneer species that CNHP 2009c, p. 1; CNHP 2009d, p. 2) presented by Oxelman et al. (2005, p. disperses to recent disturbances, (see Table 2 below). The largest 415). We recognize this placement and flourishes, and goes locally extinct if occurrence (Mount Callahan Natural will make the appropriate attribution in soil conditions become stable Area) of 2,100 to 2,240 plants grows on the proposed amendments to 50 CFR (McMullen 1998, p. 82). lands owned by an energy development 17.12(h) at the end of this document. Penstemon debilis grows on steep, oil company (CNAP 2006, p. 1). The Mount The text will include the family name shale outcrop slopes of white shale talus Callahan Ridge occurrence, with an as Plantaginaceae. at 8,000 to 9,000 ft (2,400 to 2,700 m) estimated 650 plants, grows on lands Penstemon debilis was discovered in in elevation on the southern escarpment owned by the same energy development 1986, and was first described by O’Kane of the Roan Plateau above the Colorado company (CNAP 2006, pp. 1–2). The and Anderson in 1987 (pp. 412–416. No River west of the town of Parachute, Anvil Points Road occurrence grows on challenges have been made to the Colorado. The Roan Plateau falls into lands administered by the BLM and has taxonomy as first put forward by the the geologic structural basin known as an estimated 700 plants (CNHP 2009d, authors. Penstemon debilis is a mat- the Piceance Basin. Average annual p. 2). The Mount Logan Mine forming perennial herb with thick, precipitation at Parachute, Colorado, is occurrence grows on lands owned by succulent, bluish leaves, each about 0.8 12.75 in. (32.4 cm) (IDcide 2009, p. 1). both the energy development company in. (2 cm) long and 0.4 in. (1 cm) wide. P. debilis is found only on the Parachute (approximately 90 percent) and BLM (10 Plants produce shoots that run along Creek Member of the Green River percent), and has 533 plants (CNHP underground, forming what appear as Formation. P. debilis is often found 2009a, p. 1). new plants at short distances away. growing with other species endemic to Individual P. debilis plants are able to the Green River formation, including Two additional Penstemon debilis survive on the steep, unstable, shale Astragalus lutosus (dragon milkvetch), occurrences on BLM land are slopes by responding with stem Festuca dasyclada (Utah fescue), considered to have ‘‘poor’’ estimated elongation as leaves are buried by the Mentzelia argillosa (Arapien stickleaf), viability (CNHP 2009e, p. 1; CNHP shifting talus. Buried stems and Thalictrum heliophilum (sun-loving 2009f, p. 1). The Anvil Points progressively elongate down slope from meadowrue), as well as several non- occurrence had 200 to 300 plants the initial point of rooting to a surface endemics (O’Kane & Anderson 1987, p. reported in 1994, but only three plants sufficiently stable to allow the 415). could be found in 1998 (CNHP 2009e, development of a tuft of leaves and The historical range and distribution p. 1). The latest survey in 2006 found flowers (O’Kane and Anderson 1987, for this species is unknown. All of the no plants at this occurrence (CNHP pp. 414–415). Flowers are funnel- currently known occurrences occur on 2009e, p. 1). It appears that the decline shaped, are white to pale lavender, and about 56 ac (23 ha) in Garfield County. of this occurrence was a result of natural flower during June and July. P. debilis The Green River geologic formation to processes including competition by plants produce a low number of seeds, which the plant is restricted is the major surrounding vegetation (DeYoung are primarily outcrossers, and have source of oil shale in the United States. 2008a, p. 1). The area including this many different pollinators that vary Although this formation is underground habitat also was leased under the BLM between occurrences (McMullen 1998, throughout most of the Piceance Basin, August 2008 lease sale (BLM 2008b, p. p. 26). None of the pollinators are it is exposed on much of the southern 3; Ewing 2008a, p. 7). specialists to P. debilis, nor are any of face of the Roan Plateau. The total area The Mount Logan Road occurrence, them rare (McMullen 1998, p. 31). We of the plant’s geographic range is about discovered in 1996 on a road cut, had know little about the lifecycle of 2 mi (3 km) wide and 8 mi (13 km) long. 10 plants, of which only 3 were found Penstemon debilis with regard to Prior to 1997, two occurrences of P. in 2005 (CNHP 2009f, p. 1). Because generational timetables. debilis were known. In 1997, the CNHP these two occurrences have so few Penstemon debilis seems to be at least used existing habitat and distribution individuals, they are considered to have somewhat adapted to disturbance. Each information, along with soils, geology, poor viability by CNHP, and we of the known occurrences of the species and aerial photographs, to select target consider them not viable into the future. contains high levels of physical survey areas. The ensuing survey The Smith Gulch occurrence of disturbance (McMullen 1998, p. 81). resulted in the discovery of two new approximately 12 plants was reported in Many of the characteristics that are most occurrences (Spackman et al. 1997, p. June 2009 (Graham 2009a, pp. 1–2). similar among sites promote continual 6). Two other occurrences were first This occurrence has not been rated by disturbance: steep slopes, unstable shale recorded by BLM in 1997 and 2005 at CNHP; however, it is small (12 plants) channer surface layers, and no surface oil shale mine sites (CNHP 2009a, p. 1; and, because of its positioning in a soil (McMullen 1998, p. 82). In fact, two CNHP 2009d, p. 1). Another occurrence drainage, has a high potential for being of the largest P. debilis occurrences, are of approximately 12 plants was reported destroyed by a rain event (Graham on recent mine talus slopes where in June 2009 (Graham 2009a, pp. 1–2). 2009a, pp. 1–2).

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TABLE 2. CURRENT AND HISTORICALLY KNOWN Penstemon debilis OCCURRENCES

Occurrence Viability # of Plants ac (ha) Land Ownership

Mt. Callahan Natural Area Excellent 2,100-2,240 32 (12.9) Private

Anvil Points Road Good 700 5 (2) BLM

Mount Logan Mine Good 533(50 on BLM) 2 (0.8) Private and BLM

Mount Callahan Ridge Good 650 4 (1.6) Private

Mount Logan Road Poor 3 7 (2.8) BLM

Anvil Points Poor 0 6 (2.4) BLM

Smith Gulch Unrated 12 not reported BLM

Total 3,998 – 4,138 56 (22.7)

The total estimated number of 2,550 in 2007 (COGCC 2008, p. 1); and deposited along a 1,000-foot (305-m) Penstemon debilis in the wild is 2,888 in 2008 (COGCC 2009a, p. 1). corridor centered on the road (Sanders currently 3,998 to 4,138 individuals. Because of a decrease in natural gas 2008, p. 20). Vascular plants can be The occurrences on BLM land represent prices, new well permits decreased in greatly affected within the zone of about 18 percent of the total plants 2009 to 743 (Webb 2009, p. 1), as of June maximum dust fall (i.e., the first 1000 ft counted and estimated. An energy 3, 2009 (COGCC 2009a, p. 1). This (305 m) from the road) (Everett 1980, p. development company owns land that number is down from the 1,029 wells 128). Excessive dust may affect contains approximately 82 percent of permitted by the same time in 2008, but photosynthesis, affect gas and water the total plants. We have no information is still higher than the 566 wells exchange, clog plant pores, and increase to indicate an overall species trend. permitted in Garfield county in all of leaf temperature leading to decreased Summary of Factors Affecting 2003 (COGCC 2008, p. 1). plant vigor and growth (Ferguson et al. Penstemon debilis Energy exploration and development 1999, p. 2; Sharifi et al. 1997, p. 842). includes construction of new unpaved All of the viable occurrences of P. A. The Present or Threatened roads, well pads, disposal pits, debilis are within 300 ft (91 m) of roads. Destruction, Modification, or evaporation ponds, and pipeline Further energy development would Curtailment of Its Habitat or Range corridors, as well as cross country travel likely increase road density and traffic Penstemon debilis habitat is by employees. Each of these actions has volume. threatened by energy development and the potential to cause direct impacts Other indirect impacts can occur due associated impacts. Of the four known such as plant removal and trampling, to a loss of pollinator habitat. viable occurrences (Mount Callahan and indirect impacts to Penstemon Penstemon debilis requires an insect Natural Area, Anvil Points Road, Mount debilis such as dust deposition and loss pollinator to reproduce (McMullen Logan Mine, Mount Callahan Ridge), all of habitat for pollinators. The 1998, p. iii). McMullen (1998) but the Anvil Points Road occurrence ramifications of direct impacts are easily concluded that pollinators for P. debilis are on lands wholly or partially owned assessed if witnessed. Plant removal, were generalists and were not limiting by an energy development company. All contact with herbicide or ice-melting at that time (prior to the energy boom). four viable occurrences, which exist on chemicals, and trampling can cause However, Tepedino (2009) described the Roan Plateau, face ongoing or death of plants. Because P. debilis was how the pollination biology of another potential threats, including: oil and gas unknown as a species until 1987, and Piceance Basin rare plant (Physaria development, oil shale extraction and most of the occurrences are on private obcordata) is being impacted by energy mine reclamation, and road land or in remote locations on public development. He described that any maintenance and vehicle access through land, the impacts may go unnoticed. For energy development that reduces the occurrences. example, impacts to the Mount Logan general level of available floral The Piceance Basin, including federal Mine occurrence were unknown until vegetation has a detrimental effect on and private lands surrounding the Roan the occurrence was discovered in 2005; pollinators’ ability to reproduce, Plateau, has experienced a boom in even after discovery, further mine- subsequently resulting in fewer natural gas production in recent years. related impacts occurred because the pollinators and reduced ability of the The BLM projects that around 3,916 remote location of the mine made it dependent plant to reproduce (Tepedino billion cubic feet of natural gas will be difficult for BLM to manage the 2009, pp. 16–17). developed over the next 20 years from occurrence (CNHP 2009b, p. 1; Ewing A large parcel of land including the portion of the Roan Plateau that was 2009a, p. 4). habitat occupied by the Anvil Points addressed in the new RMP amendment Indirect effects to Penstemon debilis Road occurrence was offered and sold (CNE 2004a, p. 44). Oil and gas from energy exploration are less easily for oil and gas leasing under the BLM exploration and development continues assessed. Road traffic on unpaved roads August 2008 lease sale (DeYoung 2008b, to increase each year on and around the increases dust emissions in previously p. 1; BLM 2008b, p. 1; Ewing 2008a, p. Roan Plateau. In 2003, 566 new wells stable surfaces (Reynolds et al. 2001, p. 7). This lease is currently being were permitted in Garfield County: 796 7126). For every vehicle traveling one contested in court. Increased energy in 2004; 1,508 in 2005 (Colorado Oil mile (1.6 km) of unpaved roadway once exploration in the Anvil Points Road and Gas Conservation Commission a day, every day for a year, area may increase maintenance and (COGCC 2006, p. 1); 1,844 in 2006; approximately 2.5 tons of dust are vehicle access on the unstable road that

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transects the Penstemon debilis (Goodenow 2008, pers. comm.). It is portion of the occurrence occupying occurrence and increase the likelihood unknown whether the lead in the soil is BLM land. This occurrence is perched of effects to P. debilis due to a threat to Penstemon debilis. The on a steep, unstable slope above a road construction of additional roads and CNHP estimates 700 individual plants at that is currently used for access to an other facilities associated with oil and this occurrence (CNHP 2009d, p. 2). To ongoing reclamation project at an old oil gas exploration. date, 88 plants are known to have been shale mine site. Several plants on this Oil shale mining has impacted directly impacted by Anvil Points Road steep road bank were dangling by their Penstemon debilis occurrences. Oil mine reclamation actionspermitted by roots in 2005 due to road maintenance shale extraction activities occurred on BLM, occuring in the winter of 2008- (Mayo 2006, pp. 1–4). The road was the Roan Plateau in the early 1980s and 2009 (DeYoung 2009b, pers. comm.). Of widened, and these plants were gone by into the 1990s (COBiz 2008, pp. 3–4). the 88, 21 were transplanted, and 67 2006 (Mayo 2006, p. 1). Mine This extraction impacted the Mount were covered by matting intended to reclamation actions destroyed a portion Logan Mine and Anvil Points Road reduce soil disturbance (DeYoung of this occurrence by burying it in occurrences. Because P. debilis was not 2009b, pers. comm.; DeYoung 2009c, p. topsoil (Ewing 2009a, p. 4). This site identified as a species until 1987, we 1). Long-term success of transplants is also contains noxious weeds associated have no record of the pre-mining unknown, but 2 of the 21 transplants with the disturbance; it is unknown occurrence status. However, we believe died as of June 2009 (DeYoung 2009c, whether the weeds will pose a threat to the plants were present at these sites p. 1). Eleven of the 67 plants covered by P. debilis (Ewing 2009a, p. 4). The BLM prior to mining because they are present matting are dead or unaccounted for portion of this occurrence was included now. The plants were likely heavily (DeYoung 2009c, p. 1). With restoration in an oil and gas lease parcel nominated impacted by mine operations within work still underway, it is unclear how for sale; however, BLM deferred the sale their habitat, and the occurrences have many more plants will be impacted. of the lease parcel until their RMP recovered to a far smaller population The Anvil Points Road occurrence is revision is complete, and until we make size on a reduced area of habitat (see impacted by Garfield County road a decision concerning the status of the Factor E for discussion of inherent risk stabilization work, which is required to species (CNE 2005, p. 1; Lincoln 2009, of small population size). maintain access to a transmitter tower pers. comm.). The energy company that Commercial oil shale extraction has located within occupied habitat for owns the land containing most of the not yet proven to be economically Penstemon debilis. In addition, BLM Mount Logan Mine occurrence has been viable, and current research and recently allowed an oil shale research actively developing their holdings in development efforts no longer focus on and development company to conduct this area. Further development of the surface mining of oil shale rock on the research in the Anvil Points mine, a lands immediately surrounding this Roan Cliffs (COBiz 1987, pp. 3–4). The project area containing the Anvil Points occurrence would likely result in BLM recently released the RMP Road occurrence (Ewing 2008a, p. 4). impacts due to road construction and amendments to allow oil shale leasing This research consists of taking high maintenance on the unstable shifting in the Piceance Basin (BLM 2007a, p. 1). resolution photographs of the geologic shale talus. The known Penstemon debilis formation visible from the sides of the The Mount Logan Road occurrence, occurrences are not within the area that mine, and possibly removing core located on a road cut near the Logan BLM has currently identified as samples. This research project is Mine occurrence, had 10 plants in 1996, available for leasing (BLM 2008c, p. 14). expected to include vehicle trips up the of which only 3 plants were found in It is unknown when oil shale extraction road every day for 1 month and to 2005 (CNHP 2009f, p. 1). This will become economically viable. directly impact P. debilis individuals occurrence has no barriers to shield the Despite the recent retreat from surface growing in the road immediately plants from road impacts, such as mining of oil shale, if commercial oil outside the mine (Ewing 2008a, p. 6). removal by maintenance machinery, shale production does become The roads transecting the occurrence are accidental trampling, and spraying of economically viable, we expect a on shifting shale talus slopes and are ice melting or herbicide chemicals; the renewed interest in extracting shale very conducive to rock and mudslides, road also generates heavy dust (CNHP from the cliffs of the Roan Plateau which can destroy P. debilis habitat and 2009f, pp. 1–3; DeYoung 2009d, pp. 1– because of the convenient access to which require the road to be maintained 3; Ewing 2009a, p. 2). As a result of shale resources on the surface. Recent frequently. Three plants are known to these threats, we consider this and ongoing impacts to the Anvil Points have been destroyed by the road occurrence to be nonviable. Road occurrence are occurring due to maintenance conducted under this The Mount Callahan Natural Area and research conducted by an oil shale permit (DeYoung 2009a, pers. comm.). Mount Callahan Ridge occurrences, research and development company and The BLM believes that some additional which include approximately 82 at the Anvil Points Road and Mount plants may have been trampled by percent of total known Penstemon Logan Mine occurrences due to mine unauthorized access to an area that was debilis plants, occur on land owned by reclamation and closure efforts fenced off during the research period; an energy development company. These (DeYoung 2009a, pers. comm.; Mayo however, it is unclear how many plants occurrences are behind locked gates, 2006, pp. 1–4). were disturbed (DeYoung 2008c, pers. making them inaccessible to the public The BLM has begun mine reclamation comm.). In addition to the direct and the Service. The landowner intends action under the Comprehensive impacts, the road maintenance required to develop up to three natural gas well Environmental Response, to allow this level of traffic makes drilling pads within a 680-ac (275-ha) Compensation, and Liability Act occupied P. debilis habitat more area that includes both Mount Callahan (CERCLA) (42 U.S.C. 9601 et seq.), accessible to the public, which could occurrences (Webb 2008, p. 1). commonly known as Superfund, to result in further trampling by humans Construction has begun on one pad, remove health and safety hazards from and vehicles (Ewing 2008a, pp. 5–6). located 360 ft (110 m) from the nearest Anvil Points Road. Actions will include The Mount Logan Mine occurrence of known P. debilis individual and 105 ft closing access to the passages leading Penstemon debilis is primarily located (32 m) uphill from its habitat (Ewing into the mine and removing lead mine on land owned by a natural gas and oil 2008a, p. 2). These pads will likely tailings soil on the mine bench shale production corporation, with a indirectly impact P. debilis through dust

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generation, loss of pollinator habitat, BLM lands. The BLM controls access to D. The Inadequacy of Existing and inadvertent trampling by employees the Anvil Points Mine (containing the Regulatory Mechanisms and contractors. Monitoring of the Anvil Points Road occurrence) with a Local Laws and Regulations occurrence, in connection to the energy gate. This gate is often left open, development, has resulted in trampling allowing public access to the plant Approximately 82 percent of of individual plants by people collecting occurrence Access to the other BLM Penstemon debilis occupied habitat the data (Ewing 2009a, p. 1). occurrence (the Mount Logan Road occurs on private lands. We are not The Smith Gulch occurrence of occurrence) is controlled by a guard aware of any city or county ordinances approximately 12 plants was discovered station. Approximately 300 trucks, or zoning that provide for protection or on BLM lands below Mount Callahan associated with energy development, conservation of P. debilis or its habitat. during surveys for a proposed oil and drive by this occurrence every day after State Laws and Regulations gas development project in June 2009 checking with the guard (Mayo 2005, p. No State laws or regulations protect (Graham 2009b, p. 1). Two well pads, 1). rare plant species in Colorado on private and corresponding roads and pipelines, In summary, three of the four viable are proposed for this area (Graham land or otherwise. The Mount Callahan occurrences (Mount Callahan Natural Natural Area and Mount Callahan Ridge 2009b, p. 1). Area, Mount Logan Mine, and Mount The BLM develops a Reasonably occurrences, including approximately Callahan Ridge) are on lands owned 82 percent of total known Penstemon Foreseeable Development scenario wholly or partially by an energy (RFD) to project the level of oil and gas debilis plants, occur on land owned by development company. Some activity that can be expected to occur. an energy development company. With individuals of the fourth occurrence The RFD is intended as a technical and the cooperation of the landowner, the (Anvil Points Road), on BLM land, are scientific approximation of anticipated CNAP, a State agency, has designated subject to transplantation or destruction levels of oil and gas development during the area of Mount Callahan (referred to as a result of an ongoing mine the planning timeframe (BLM 2006, p. throughout the document as the Mount restoration project and road 4–2). It is not intended to define specific Callahan Natural Area occurrence) and maintenance. Over the past 6 years, oil numbers and locations of wells and Mount Callahan Ridge occurrences as and gas exploration and production has pads. An RFD for oil and gas is a long- Natural Areas (Kurzel 2008, pers. increased substantially in the area term projection of oil and gas comm.; CNAP 1987, pp. 1–7;, CNAP exploration, development, production, containing the habitat for Penstemon 2008a, pp. 1–7;, Webb 2008, p. 1) and reclamation activity within the debilis making it likely that the species Through these designations, the lands and minerals managed by the will become endangered in the landowner has agreed to develop the BLM Field Office (BLM 2005b, p. 2). foreseeable future. The pace of new natural gas pads in a way that should The RFD is a technical report typically development slowed in 2009; however, minimize impacts to the P. debilis referenced in the NEPA document for it is still far above pre-2004 levels. P. occurrences (Ewing 2008a, pp. 1–2). The the RMP (BLM 2005b, p. 2). debilis grows on steep shifting slopes, agreements include conservation The RFD for the Glenwood Springs and roads through P. debilis habitat are measures such as stormwater BLM Field Office, Roan Plateau unstable and require frequent management and a noxious weeds Planning Area, which contains the maintenance, which often destroys management plan in order to minimize Anvil Points Road and Anvil Points plants. Plants seem to be able to development impacts to the species Penstemon debilis occurrences, used 20 recolonize their habitat after (CNAP 2008b, pp. 1–4; CNAP 2008c, pp. years as the foreseeable development disturbance; however, recolonization is 1–4). The CNAP has been very timeframe. Based on the RFD, the Roan slow, and would not be able to keep successful in garnering landowner Environmental Impact Statement (EIS) pace with rapid development. For these participation in conservation of rare Proposed Plan projected approximately reasons we consider destruction and species in Colorado. However, natural 669 pads, 3,691 wells, 2,791 ac (1,129 modification of the species’ habitat for area agreements are voluntary and can ha) of long-term disturbance, and 1,624 natural gas production, oil shale mining, be terminated at any time by either ac (657 ha) of short-term disturbance in mine reclamation, road maintenance, party with a 90-day written notice. For the Roan Planning Area (BLM 2006, p. and associated impacts resulting from this reason, and because no legally 4–11). The other occurrences located on increased vehicle access to the binding conservation easements or BLM land (Mount Logan Mine and occurrences, a moderate but immediate candidate conservation agreements Mount Logan Road) are within the BLM threat to P. debilis. protect any of the occurrences on Grand Junction Field Office, which is B. Overutilization for Commercial, private land, we have concluded that currently in the process of developing a Recreational, Scientific, or Educational the Natural Area designation alone does new RFD. The current RFD was Purposes not constitute an adequate regulatory developed in 1987, and forecasted 50 mechanism to conserve P. debilis. We wells a year for a 20–year timeframe Overutilization for commercial, consider inadequate State laws and (Anderson 2008, p. 1). No RFD recreational, scientific, or educational regulations a significant and immediate projection is available for the lands purposes is not known to be a threat to threat to this species, because the laws containing the Mount Callahan Natural Penstemon debilis. Therefore, this factor do not ameliorate the threats to the Area, Mount Callahan Ridge, and is not addressed in this proposal. species. private portion of the Mount Logan C. Disease or Predation Mine occurrences, because they are on Federal Laws and Regulations private lands with privately owned Seed predation of Penstemon debilis The Federal Land Policy and minerals. by small mammals has shown to be very Management Act (FLPMA) (43 U.S.C. Penstemon debilis is not protected by low (McMullen 1998, pp. 39–40). 1701 et seq.) directs BLM, as part of the Federal regulation for about 82 percent Grazing, predation, and disease are not land use planning process, to ‘‘give of the total known and estimated plants known to be a threat to P. debilis. priority to the designation and because they are on private land. The Therefore, this factor is not addressed in protection of areas of critical remaining 18 percent of plants are on this proposal. environmental concern’’ (Sec. 202(c)(3)).

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The FLPMA defines areas of critical (because it would last longer than 2 the destruction of P. debilis plants (BLM environmental concern (ACECs) as years) but not a typical pipeline 2007a, p. F6-F7; DeYoung 2009a, pers. ‘‘areas within public lands where special (because it would be revegetated within comm.). (4) The land containing the management attention is required ... to 2 years) (BLM 2006, pp. 2–3). Also, an Anvil Points Road occurrence was protect and prevent irreparable damage NSO does not preclude the extraction of leased for oil and gas development to important historic, cultural, or scenic underlying fluid minerals if they can be under the BLM August lease sale values, fish and wildlife resources or accessed from outside the area by (DeYoung 2008b, p. 1; BLM 2008b, p. 1; other natural systems or processes, or to directional drilling (BLM 2006, pp. 2–3). Ewing 2008a, p. 7). Increased energy protect life and safety from natural Directional drilling may not disturb the exploration in the Anvil Points Road hazards’’ (Sec. 103 (a)). Designation as overlying surface, including Penstemon area may increase maintenance and an ACEC recognizes an area as debilis habitat. Except for specified vehicle access and consequently possessing relevant and important situations, individual NSOs may increase the likelihood of other adverse values that would be at risk without include exceptions so that BLM may affects. Continued adverse impacts to special management attention (BLM allow a ground-disturbing activity if it the Anvil Points Road occurrence, 2006, pp. 3–110). The ACEC designation meets specific, stated criteria (BLM beyond those currently occurring during carries no protective stipulations in and 2006, pp. 2–3). For example, the NSO the mine reclamation effort, could result of itself (BLM 2006, pp. 2–65). designation for these occurrences allows in reduced viability and possible Following an evaluation of the for the BLM to grant exceptions for long- extirpation of the Anvil Points Road relevance and importance of the values term ground disturbing activities if occurrence. found in potential ACECs, a consultation with the Service indicates In summary, we found that existing determination is made as to whether that proposed activity would not impair regulatory mechanisms are inadequate special management is required to maintenance or recovery of the species to protect Penstemon debilis. No State protect those values and, if so, to specify (BLM 2007a, pp. F6-F7). or local laws or regulations protect what management prescriptions would Penstemon debilis. P. debilis is afforded The protections provided by the NSO/ provide that special management (BLM some protection on Federal lands as a NGD provision of the ACEC designation 2006, pp. 3–111). The Records of candidate species; however, the should be adequate to provide for Decision (RODs) for the Roan Plateau protection has been inadequate, and maintenance of the Anvil Points Road RMP Amendment were signed June 8, would be reduced if we find that P. occurrence. When applied, the NSO/ 2007, and March 12, 2008. The March debilis does not meet the definition of 12, 2008, ROD establishes the Anvil NGD would require BLM to consult an endangered or threatened species. P. Points ACEC, an area designated for with the Service and ensure that debilis has no regulatory protection for management of sensitive resources proposed activity would not impair approximately 82 percent of the total including Penstemon debilis (BLM maintenance or recovery of the species estimated plants because they are on 2008a, ROD p. 4). The ROD lists as an prior to authorizing an exception to the private land. The private land owner objective for the Anvil Points ACEC to NSO/NGD (BLM 2007a, pp. F6-F7). has pledged to protect these plants from ‘‘protect occupied habitat and the However, despite NSO/NGD provisions, direct impacts, but the agreement is not immediately adjacent ecosystem projects have proceeded without legally binding. Because of this lack of processes that support candidate consultation that resulted in destruction regulation, we consider inadequate plants.’’ This ROD also authorizes oil of Penstemon debilis individuals, and regulatory mechanisms to be a and gas development in the ACECs, other projects with likely impacts to P. significant and immediate threat to this making the portions of these areas that debilis are being considered by BLM species. are not currently leased, available for without consultation. This ability to E. Other Natural or Manmade Factors lease (BLM 2008a, ROD p. 2). Anvil proceed without consultation indicates Affecting Its Continued Existence Points ACEC covers most of the that the NSO/NGD provisions are formerly occupied occurrence area at inadequate to protect P. debilis and its The Anvil Points occurrence, which Anvil Points, and the entire Anvil habitat. Recent examples demonstrating formerly included several hundred Points Road occurrence. the inadequacy of the NSO/NGD plants on BLM land, has been reduced In order to protect Penstemon debilis provisions follow. (1) The BLM to zero plants since 1994 for unknown in the ACEC, a No Surface Occupancy approved work under the CERCLA to reasons (CNHP 2009e, p. 1). It appears (NSO) and No Ground Disturbance remove health and safety hazards from that the decline of this occurrence was (NGD) stipulation was established for the Anvil Points Road occurrence. This a result of natural processes including both Anvil Points P. debilis occurrences project resulted in direct impacts to at competition by surrounding native (BLM 2007b, ROD p. 26). The term NGD least 90 Penstemon debilis individuals vegetation, which includes applies to all activities except oil and (DeYoung 2009c, p. 1). We believe many Chrysothamnus viscidiflorus (yellow gas leasing and permitting, while the of these impacts could have been rabbitbrush) (DeYoung 2008a, p. 1; term NSO applies only to oil and gas avoided or minimized through the CNHP 2009e, p. 2). New Penstemon leasing and permitting (BLM 2008a, consultation process. (2) BLM is debilis plants grown off site from seeds ROD p. 6). The NSO designation considering granting permission for were introduced but declined over prohibits long-term use or occupancy of continued maintenance of the Garfield several years (CNHP 2009e, p. 2). the land surface for fluid mineral County transmitter tower access road Monitoring failed to show a cause for exploration or development to protect (DeYoung 2009b pers. comm.). the disappearance of P. debilis identified resource values (BLM 2006, Maintaining the existing road rather (DeYoung 2008a, p. 1). pp. 2–3). This designation means that an than relocating it increases the Penstemon debilis population sizes area is protected from permanent likelihood of destroying P. debilis plants are small, and the smaller the structures or long-term ground- and prevents the recolonization of population, the more likely extinction is disturbing activities (i.e., lasting longer plants in the current road bed. (3) BLM in any given period of time (Shaffer than 2 years) (BLM 2006, pp. 2–3). For has authorized oil shale research 1987, p. 70). All occurrences of P. example, an NSO designation would projects in the past at the Anvil Points debilis grow on a 17-mi (27-km) stretch preclude construction of a well pad mine (Ewing 2008a, p.4), which lead to of the rim of the Roan Plateau in

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Garfield County, Colorado (Ewing temperature and precipitation change changes in climatic conditions by 2008a, p. 7). The two largest within P. debilis’s limited range. progressive establishment of new occurrences are within 2 mi (3 km) of Therefore, we generally address what populations. each other (Ewing 2008a, p. 7). A could happen under the current climate Incidental disturbance by humans, species with such a small range could predictions. However, we need further and stochastic events, such as drought, be particularly susceptible to extirpation refinement of the current predictions to landslides, or encroaching vegetation from a stochastic event such as an draw more reliable conclusions can impact Penstemon debilis. However earthquake, rockslide, or severe hail concerning the effects of climate change the species likely evolved under these storm (McMullen 1998, p. 3). This on the species. factors and we do not consider them increased susceptibility is due to the It is unknown how Penstemon debilis significant immediate threats. Climate likelihood that, although stochastic responds to drought; however, in change could exacerbate these factors, events are often localized in severity, general, plant numbers decrease during causing them to pose a threat to P. such a localized event would likely drought years, but recover in subsequent debilis; however the current data are not impact all occurrences of the species, seasons that are less dry. Drought years reliable enough at the local level for us rather than just a small portion of the could result in a loss of plants. Changes to draw conclusions regarding the occurrences, as may be expected for a in the global climate system during the imminence of climate change threats to species with a larger range. For 21st century are likely to be larger than P. debilis. example, the newly discovered Smith those observed during the 20th century. Gulch occurrence is small (12 plants), For the next 2 decades, a warming of Background—Phacelia submutica and because of its positioning in a about 32.4 °F (0.2 °C) per decade is Previous Federal Actions drainage, has a high potential for being projected (IPCC 2007, p. 45). Afterward, We included Phacelia submutica as a destroyed by a rain event (DeYoung temperature projections increasingly category 1 candidate species in the 1980 2009e, p. 1). depend on specific emission scenarios. In addition, the fragmentation of P. Various emissions scenarios suggest that Review of Plant Taxa for Listing as debilis habitat by human-related by the end of the 21st century, average Endangered or Threatened Species (45 activities threatens to reduce the species global temperatures are expected to FR 82480, December 15, 1980). In that to mosaics of small populations increase 33 to 39 °F (0.6 to 4.0 °C) with notice, category 1 candidates were occurring in isolated habitat remnants. the greatest warming expected over defined as species for which the Service Occurrences with small population size land. Localized projections suggest the had ‘‘sufficient information on hand to (fewer than 50 individuals) are more Southwest may experience the greatest support the biological appropriateness likely to suffer genetic problems such as temperature increase of any area in the of their being listed as Endangered or genetic drift and inbreeding depression lower 48 States. It is likely that hot Threatened species.’’ We changed the due to losses of individuals in such extremes, heat waves, and heavy candidate status of P. submutica to events (McMullen 1998, p. 3; Ellstrand precipitation will increase in frequency category 2 on November 28, 1983 (45 FR & Elam 1993, p. 226). Conversely, if the (IPCC 2007, p. 30). There also is high 82480). On February 21, 1990, we again current population structure is similar confidence that many semi-arid areas identified P. submutica as a category 1 to the historical range, it is possible that like the western United States will candidate species (55 FR 6184). In the P. debilis has adapted to be less suffer a decrease in water resources due February 28, 1996, Federal Register (61 vulnerable to inbreeding depression to climate change. A 10- to 30-percent FR 7596) all category 1 candidate (Ellstrand & Elam 1993, p. 225). decrease in precipitation in mid-latitude species became candidates under the Climate change could potentially western North America is projected by current definition. We assigned P. impact Penstemon debilis. According to the year 2050 based on an ensemble of submutica an LPN of 11. In the 2005 the Intergovernmental Panel on Climate 12 climate models (Milly et al. 2005, p. CNOR (70 FR 24870, May 11, 2005) we Change (IPCC), ‘‘Warming of the climate 1). When plant populations are raised the LPN to 8, to reflect the system in recent decades is impacted by additional threats during increasing level of threats, which are unequivocal, as is now evident from drought years, they may require several imminent and of moderate magnitude. observations of increases in global years to recover. Climate change may On May 11, 2004, we received a average air and ocean temperatures, exacerbate the frequency and intensity petition from the CBD to list, as widespread melting of snow and ice, of droughts. Under drought conditions, endangered, 225 species we previously and rising global sea level’’ (Bates et al. plants generally are less vigorous and had identified as candidates for listing, 2008, p. 15). Average Northern less successful in reproduction. With including Phacelia submutica (CBD Hemisphere temperatures during the small populations and their inherent 2004, p. 146). Under requirements in second half of the 20th century were genetic risk, lowered reproduction section 4(b)(3)(B) of the Act, the CNOR very likely higher than during any other could result in reduced population and the Notice of Findings on 50–year period in the last 500 years and viability. Resubmitted Petitions published by the likely the highest in at least the past Recent analyses of long-term data sets Service on May 11, 2005 (70 FR 24870), 1,300 years (IPCC 2007, p. 30). It is very show accelerating rates of climate included a finding that the immediate likely that over the past 50 years, cold change over the past 2 or 3 decades, issuance of a proposed listing rule and days, cold nights, and frosts have indicating that the extension of species’ the timely promulgation of a final rule become less frequent over most land geographic range boundaries towards for each of these petitioned species, areas, and hot days and hot nights have the poles or to higher elevations by including P. submutica, was warranted become more frequent. It is likely that progressive establishment of new local but precluded by higher priority listing heat waves have become more frequent populations will become increasingly actions, and that expeditious progress over most land areas, and the frequency apparent in the relatively short term was being made to add qualified species of heavy precipitation events has (Hughes 2000, p. 60). The limited to the Lists. increased over most areas (IPCC 2007, p. geographic range of the oil shale On April 28, 2005, the CNE, the 30). As described above, climate substrate that makes up the entire Colorado Native Plant Society, and modeling is not currently to the level Penstemon debilis habitat could limit botanist Steve O’Kane, Jr., Ph.D., that we can predict the amount of the ability of the species to adapt to submitted a petition to the Service to

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list Phacelia submutica as endangered 1987, p. 2; 1988, p. 462). Phacelia drying,cracks form in the soils. Seeds or threatened within its known submutica is recognized at the species plant themselves by falling into the historical range, and to designate critical rank by current floristic treatments in cracks that close when wetted, thus habitat concurrent with the listing (CNE Weber and Wittmann (1992, p. 98; 2001, covering the seeds (O’Kane 1988, p. 20). et al. 2005, p. 1). We considered the p. 203) and by the Director of the Biota Plant sites differ in numbers of information in the petition when we of North America Program (Kartesz flowering plants each year, but there are prepared the 2006 CNOR (71 FR 53756, 2008, pers. comm.). While the Integrated no observations of site expansion. Seeds September 12, 2006). Section 4(b)(3)(C) Taxonomic Information System (2001) do not appear to disperse to adjacent of the Act requires that when we make database cites John Kartesz as the expert soils. The ideal conditions required for a warranted-but-precluded finding on a source for this species, it is not updated seeds of this species to germinate are petition, we are to treat such a petition with his currently accepted name for the unknown. as one that is resubmitted on the date of species: Phacelia submutica (Kartesz It is likely that the number of such a finding. We identified P. 2008, pers. comm.). Phacelia is included seedlings depends not on total submutica as a species for which we in the Hydrophyllaceae (waterleaf precipitation but on the temperature made a continued warranted-but- family). Recent molecular data suggest after the first major storm event of the precluded finding on a resubmitted that this family should be combined in season (Levine et al. 2008, p. 795). petition in the Federal Register on an expanded Boraginaceae (borage Phacelia submutica seeds can remain December 6, 2007 (72 FR 69034), and family). There are conflicting views on dormant for 5 years (and probably December 10, 2008 (73 FR 75176). We the configuration of this larger longer) until the combination and retained an LPN of 8 for the species. In Boraginaceae and the lead author of the timing of temperature and precipitation the 2008 notice, we announced that we family treatment for the upcoming Flora are optimal (CNHP 2009g, records a– have not updated our assessment for of North America has chosen to retain hh). Rare annuals that flower every year this species, as we were developing this the Hydrophyllaceae. Therefore, we will are subject to extinction under proposed listing rule (73 FR 75227). retain Phacelia in the Hydrophyllaceae fluctuating conditions, because they In each assessment since its family for this proposal. exhaust their seed reserves (Meyer et al. recognition as a candidate species under Phacelia submutica is a low-growing, 2006, p. 901). Rare ephemeral annuals, the current definition in 1996, we herbaceous, spring annual plant with a such as P. submutica, that save their determined that publication of a tap root. The stems are typically 0.8 to seed bank for the best growing proposed rule to list the species was 3 in. (2 to 8 cm) long, often branched at conditions are more resilient to precluded by our work on higher the base and mostly laying flat on the fluctuating conditions. P. submutica priority listing actions. In 2008, we ground as a low rosette (Howell 1944, numbers at Horsethief Mountain received funding to initiate the proposal pp. 371–372). Stems are often deep red fluctuated from 1,700 plants in 1986, to to list Phacelia submutica. and more or less hairy with straight 50 in 1992, up to 1,070 in 2003, and andstiff hairs. Leaves are similarly down to only a few from 2006 to 2008 Species Information hairy, reddish at maturity, 0.2 to 0.6 in. (CNHP 2009g, records q–t). The Phacelia submutica is a rare annual (5 to 15 mm) long, egg-shaped or almost fluctuation in numbers indicates that plant endemic to clay soils derived from rectangular with rounded corners, with many seeds remain dormant in the seed the Atwell Gulch and Shire members of bases abruptly tapering to a wedge- bank during years when few plants can the Wasatch Formation in Mesa and shaped point. Leaf margins are smooth be found. Garfield Counties, Colorado. The 25 or toothed. The yellowish flowers are Phacelia submutica is restricted to known occurrences of the plant occupy arranged on somewhat congested exposures of chocolate to purplish a total of 104 ac (42 ha) (CNHP 2009g, racemes; the stamens are shorter than brown and dark charcoal gray clay soils records a-hh; CNHP 2010, records ii-jj; the corolla throat and the fruits are not derived from the Atwell Gulch and WestWater Engineering 2004, pp. 2; attenuate at the apex (Howell 1944, pp. Shire members of the Wasatch Ewing 2008b, map). Fifteen of the 371–372).Unlike many Phacelia species, Formation (Donnell 1969, pp. M13– occurrences occupy patches of 1 ac (0.4 the stamens do not protrude beyond the M14; O’Kane 1987, p. 10). These ha) or less. All occurrences consist of petals. The style is 0.04 to 0.06 in. (1 to expansive clay soils are found on small patches of plants on uniquely 1.5 mm) long and nearly hairless. The moderately steep slopes, benches, and suitable soil separated by larger areas of bracts around the seed capsules are 0.2 ridge tops adjacent to valley floors of the similar soils that are not occupied by P. to 0.4 in. (6 to 10 mm) long. The southern Piceance Basin in Mesa and submutica. The estimated total number elongated egg-shaped seeds are 0.6 to Garfield Counties, Colorado. On these of plants differs from 84 to 42,926 per 0.8 in. (1.5 to 2 mm) long with 6 to 12 slopes and soils, P. submutica usually year, depending on growing conditions. crosswise corrugations, and are blackish grows only on one unique small spot of The species depends on its seed bank to brown and somewhat iridescent (Howell ground that shows a slightly different survive for one or many years, again 1944, p. 370; Halse 1981, p. 130; O’Kane texture and color than the similar depending on growing conditions. 1987, p. 3). surrounding soils (Burt and Spackman Phacelia submutica was first Phacelia submutica seeds usually 1995, p. 15). We do not have a precise described by Howell based on germinate in early April; the plants may description of the soil features required specimens collected from the town of flower between late April and late June. to support this species, but it is clear DeBeque, Mesa County, Colorado, in Fruit set is from mid-May through late that the identified habitat that appears 1911 and 1912 (Howell 1944, pp. 370– June. Individuals finish their life cycle to be suitable will never be fully 371Halse (1981, pp. 121, 129, 130) by late June to early July, after which occupied by the plants. The currently reduced it to varietal status as P. time they dry up and disintegrate or known occupied habitat where the scopulina var. submutica. This has been blow away, leaving no indication that plants grow covers about 104 ac (42 ha) challenged as incorrect by O’Kane the plants were present (Burt and (CNHP 2009g, records a–hh; CNHP (1987, p. 2), who claimed Halse used Spackman 1995, p. 23). The species 2010, records ii–jj; Ewing 2008b, map; inadequate collection materials, and grows in a habitat with wide see Table 3 below). About 538 ac (216 that P. submutica is geographically temperature fluctuations, long drought ha) of suitable habitat have been isolated from P. scopulina (O’Kane periods, and erosive saline soils. Upon mapped (CNHP 2009g, records a–hh;

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CNHP 2010, records ii–jj). A general Historical occurrences or sites have CNHP. Eleven percent are ranked B, 33 range, encompassing outlying either not been revisited for at least 20 percent have a C rank, 19 percent have occurrences of P. submutica, includes years, or they were revisited but no a D rank, and 1 percent has an E rank. about 86,000 ac (34,800 ha) (WestWater plants were found within the last 20 The H rank is assigned to 38 percent of Engineering 2004, pp. 2, 11; Western years. Historical records are included in the records (see Table 3 below; CNHP Ecological Resource 2008, pp. 54–65, the following table of occurrences and 2009g, records a–hh; CNHP 2010, 100; CNHP 2009g, records a–hh; CNHP subsequent analyses of status. The records ii–jj). 2010, records ii–jj; Ewing 2008b, map). highest total number of P. submutica No occurrences of Phacelia submutica The growing town of DeBeque and plants that have ever been counted at have been found beyond the described about 10 mi (16.4 km) of interstate the 25 occurrences is 42,926 (see Table habitat and range, including the two highway 70 and the Colorado River 3 below). The lowest total count was 84 new occurrences recorded in 2009 bisect the species’ range. plants (CNHP 2009g, records a–hh; (CNHP 2010, records ii, jj). Surveys for Each occurrence of the species WestWater Engineering 2007, pp. 17, 26; P. submutica have been conducted includes one or more sites that often CNHP 2010, records ii, jj). outward from DeBeque as far as the cover only a few square meters (O’Kane Phacelia submutica is classified by exposed soil members extend within the 1987, p. 16). Twenty-five occurrences of the CNHP as a G2 and S2 species, which geologic formation (Burt and Spackman Phacelia submutica, including 37 sites, means it is imperiled across its entire 1995, p. 14). CNHP botanists also are documented (CNHP 2009g, records range and within the State of Colorado conducted surveys for the species as a–hh; WestWater Engineering 2007, p. (CNHP 2007, p. 1). CNHP ranks the part of the Garfield County Survey of 26;, CNHP 2010, records ii–jj). Two of quality of each occurrence on a scale of Critical Biological Resources without the occurrences were newly recorded in A to E, with A meaning abundant and finding P. submutica in known 2009 (CNHP 2010, records ii–jj). All viable, and E meaning extant, but no locations or in any new areas (Lyon et occurrences are separated from one ranking information is available. There al. 2001, pp. 7, 11). CNHP identified another by at least 0.6 mi (1 km) of is also an H rank for historical records. potential habitat beyond the known unsuitable habitat or 1.2 mi (2 km) of Ranks are based on the viability and range of the species using modeling suitable habitat (CNHP 2007, p, 1). Six number of plants, the amount of techniques (Decker et al. 2005, pp. 9, 13, of the 25 occurrences are considered anthropogenic (human) disturbance, 18). This new potential habitat has not historical records, and three additional and the amount of weed cover and yet been verified in the field because P. occurrences have historical sites intact habitat (CNHP 2007, p. 1). No P. submutica plants have not been present included with occupied habitat data. submutica occurrences are ranked A by to confirm that it is occupied habitat.

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ATER W EST 2008; W TO 1982 ) OBSERVATION DATES , HH – RECORDS A , Occupied Suitable Land Ownership Occupied Suitable Land INDICATES PRIVATE OWNERSHIP G ac ha (CNHP 2009 . 16, 17, 19, 27, PVT PP 2007, Phacelia submutica NGINEERING E ABITAT FOR H ii B 1,000 0 28 11.3 28 11.3 BLM USFS State 1 ii 2.5 BLM 0.4 1,000 0 B 1 28 11.3 1,700 jj B UITABLE S CCUPIED AND 3. O Occurrence Sites Site Ranks High Counts Low Counts ABLE Gulch + Wildlife Area + T + indicates 2009 data (CNHP 2010, records ii-jj) * indicates historical records A—Pyramid Ridge BLM PVT 1,500 4 18.6 USFS B,H a-b 12 4.8 46 48 19.4 0 5 2 A—Pyramid BLM Wash* 5,817 B—Pyramid Rock H,H,H BLM C—Ashmead Draw f-h 27 4 13 5 67 D—Logan 7,500 E—Coon hollow 1 B,C,C,C Mountain q-t F—Dry Fork c d-e G—Mount Low West* 8 3 BLM 0.4 H—Horsethief 0 1 500 Reservoir* C w I—Sulphur Gulch 1* C D,C i-l 0 1 0.4 6 2.4 BLM 1,000 x PVT H J—DeBeque K—Baugh C,H,D,H 215 2,055 m-n South o-p L—Coon Hollow 2* Gulch 10,092 u-v aa D 17 0 BLM M—Sulphur Gulch 2* 1.6 4 0.4 1 31 C,E Creek 0 N—DeBeque H,C bb D 20 Gulch 0 10 BLM 0.8 2 0.4 1 cc D 10 0 O—Moffat H,H 1 0.4 2 0.8 BLM 400 20 10,000 P—Horsethief y 2 0 250 z dd C 1 0.4 3 1.2 Q—Jerry 4 50 Creek 34 0 R—Sulphur Gulch 3 8 Logan H 0.8 S—DeBeque East H 1.6 0 195 gg C 1 0.4 6 2.4 0 T—Roan hh C 30 3 0 BLM 0.8 2 0.4 1 1 PVT 160 U—Mount 150 14 ee 10 63 V—Housetop Mtn., Atwell 2 64.7 1.2 0.4 ff W—Plateau Creek State 5.6 0 PVT D 25 0 0.8 X—Little Anderson Gulch BLM 19 16 D TOTALS BLM 1 25 BLM 1 4 none 7.6 6.5 20 0.4 PVT 0 none 0.4 216 84 104 42 538 37 1.6 BLM BLM 926 0 2 370 1 2 BLM 42, PVT PVT 1 0.8 0 0.4 0.8 0.4 BLM 1 8 BLM 24 0.4 3 9.7 1 BLM BLM 0.4 PVT

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Summary of Factors Affecting Phacelia making it likely that the species is in in subsequent years (Meyer et al. 2005, submutica danger of extinction. p. 22). Energy development increases access A. The Present or Threatened The Energy Policy Act of 2005 (42 U.S.C. 15801 et seq.)) directed the to previously roadless areas, which Destruction, Modification, or encourages ORV traffic to drive on Curtailment of Its Habitat or Range Secretaries of Agriculture, Commerce, Defense, Energy, and Interior to nearby slopes that support plant habitat. Phacelia submutica is threatened with designate energy transport corridors for ORV use occurs on BLM lands in the destruction and modification of its seed oil, gas, and hydrogen pipelines and general vicinity of Phacelia submutica bank and habitat due to ground electricity transmission and distribution and is recorded within occupied habitat disturbance from natural gas facilities on Federal lands. A portion of at three sites within occurrences A and exploration, production and pipelines, the designated Westwide Energy I (seeSee Table 3 above) (CNHP 2009g, other energy development, expansion of Corridor crosses 16,326 ac (6,621 ha) of records a, c, w; Mayo 2008d, photo). roads and utilities, the Westwide Energy BLM land within the range of Phacelia The vehicles stray from designated Corridor, increased access to the habitat submutica. Nine of the species’ 25 roads to climb hills for recreational by off-road vehicles (ORVs), soil occurrences are located within this purposes. At a site in occurrence A, the compaction by cattle, and proposed energy corridor, including 8 ac (3.2 ha), tracks from ORVs have disturbed most water reservoir projects. All known or about 8 percent, of occupied habitat of the habitat (Mayo 2008d, photo). occurrences are in the midst of the third and 290 ac (117 ha), or 54 percent, of Substantial surface disturbance due to largest natural gas producing area in suitable habitat (Westwide 2009, map; churning by ORV tires can alter the Colorado (Colorado Oil and Gas Ewing 2009, map). Pipeline and unique soil structure required by this Conservation Commission (COGCC transmission line routes along the species, with the same negative effects 2008, p. 1)). energy corridor are not yet identified. It on the seed bank as described above. Cattle trampling within occupied About 78 percent of the occupied is not feasible that all suitable habitat habitat is documented at 5 sites within habitat for the species and 67 percent of for P. submutica will be avoided as the occurrences B, F, and G (see Table 3 the entire range of Phacelia submutica corridor continues to be developed, above; CNHP 2009g, records d, o, q, r, are on BLM lands currently leased for within the next 10 to 20 years. t). The Ashmead Draw occurrence (C) is oil and gas drilling (Ewing 2009, map). The energy development activities severely trampled, with a poor viability An additional 8 ac (3 ha) of occupied P. described above are occurring in close (D) rank (CNHP 2009g, records d–e). submutica habitat within about 65 ac proximity to Phacelia submutica Substantial surface disturbance, due to (26 ha) of suitable habitat may be locations (WestWater Engineering 2004, heavy trampling by cattle, increases soil opened to natural gas development by p. 11). Oil and gas pipelines, well pads, compaction and erosion and alters the BLM pending development of a new and access roads are present on six P. microhabitat, such as the cracked soil Resource Management Plan for the submutica sites within occurrences A, surface, the species requires. Grand Junction Field Office (Ewing D, E, and G (see Table 3 above; CNHP Livestock-related impacts have 2008a, pers. comm.; BLM 2005b, p. 5). 2009g, records a, c, i, j, m, q). Frequently resulted in the loss of similar plant About 3 percent of occupied habitat is travelled roads bisect and cross the species in other locations. A rare on private land owned by energy edges of occurrences A, D, and E. It is ephemeral annual desert plant in Idaho companies (Burt and Spackman 1995, p. likely that some of the seed bank was (comparable to P. submutica), with 25; CNHP 2009g, records f–g). Although displaced or destroyed to build the highly specific soil requirements and the sale of oil and gas leases by BLM roads and pipelines. On Federal lands, that depends on its seed bank, went does not directly impact rare plant direct impacts to known plant locations from thousands of plants in 1995 to no habitat, it indicates the intention to are mostly being avoided by careful new plants after intensive trampling by continue and increase the level of placement of pipelines, well pads, and cattle when the soil was wet and seeds development in an area that covers a associated facilities, due to the were germinating (Meyer et al. 2005, p. large portion of the range of P. candidate status of the species. Our 22). The population has not recovered, submutica. Likewise, COGCC issues concern is primarily for the cumulative which is believed to be due to damage permits to drill that indicate imminent impacts of energy development. When and burying of seeds that prevented development at specific sites on private all of the oil and gas wells are connected them from germinating. After 11 years of and Federal lands (COGCC 2009b, pp. to the system of local pipelines, roads, monitoring, researchers have clear 1–3). Ten new drilling permits have and pumping stations, in combination evidence that ‘‘any form of soil been issued, and 178 natural gas wells with cross-country transmission lines disturbance is likely to have a exist within the 86,000-ac (34,800-ha) and pipelines, more ROWs will be deleterious effect on the in situ seed range of P. submutica; 60 of the gas necessary. Under these conditions, it is bank,’’ and that all potential habitat for wells are located within the same 640- difficult to protect occupied or potential such a species (like P. submutica) ac (259-ha) section as 18 occurrences of habitat for P. submutica. Blading of the should be managed as if it were occupied P. submutica habitat (Ewing top few inches of soil during well pad currently occupied (Meyer et al. 2005, 2009, map). and road construction, installation of p. 22). The ongoing threats to habitat underground pipelines, and Two water reservoir projects known associated with oil and gas development construction of associated buildings, as Roan Creek and Sulphur Gulch have include well pad and road construction; holding tanks, and other facilities alters been proposed in the past within installation of pipelines; and the unique soil structure and may occupied habitat of Phacelia submutica. construction of associated buildings, disturb, damage, or remove seed banks The potential reservoir locations would holding tanks, and other facilities. All of that are critical to the survival of this have impacted two sites within the these actions would destroy the seed species. Any soil disturbance on Sulphur Gulch 1 occurrence (I, u-v in bank of Phacelia submutica where they occupied habitat is likely to have a Table 3 above) and three sites within the occur on occupied habitat for the deleterious effect on the in situ seed Logan Wash occurrence (D, f-g-h in species, and modify suitable habitat so bank and, therefore, on successful plant Table 3 above). Recently, both projects that the plants cannot grow there, recruitment and survival of the species were again evaluated as potential

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reservoirs to provide a water supply for Consulting Corporation 2009, pp. 1–5). threats are not imminent; however, the instream flows for endangered fishes in The Roan Creek reservoir project was sites have been identified as potential the Colorado River (Friedel 2004, p. 1; also proposed by Chevron Shale Oil reservoir locations that could be Grand River Consulting Corporation Company and Getty Oil Exploration developed within 20 years if warranted 2009, p. 3). After evaluation of Company to be used for development of by increased demands for water. numerous alternatives, the Sulphur oil shale extraction (Chevron-Getty Increased demands are likely, Gulch and Roan Creek projects are no 2002, pp. 2, 8). These potential depending on the oil shale market, longer being considered as an reservoirs could permanently destroy urban development in Colorado, and alternative for a water supply for plants and their habitat by project less precipitation due to climate change. endangered fishes (Bray and Drager construction and inundation. Since the 2008, pers. comm.; Grand River proposals have been withdrawn, these

TABLE 4. THREATS TO Phacelia submutica HABITAT BY SOURCE AND OCCURRENCE. OCCURRENCES A to X refer to Table 3 (CNHP 2009g, records a–hh, observation dates 1982 to 2008; CNHP 2010, records ii, jj; WestWater Engineering 2007, pp. 16, 17, 19, 27; Ewing 2009, map).

Occurrence A B C D E F G H I J K L M N O P Q R S T U V W X

Energy X X X X X X X

WestWide X X X X X X X X Corridor

Trampling X X X X X X X

ORV X X X X

Roads X X X X X

Reservoirs X X

No Data X X X X X X X X X X

We consider destruction, modification we are not addressing this factor in this establishes a Federal Permit and fragmentation of habitat to be proposed rule. Streamlining Pilot Project with the moderate threats to Phacelia submutica intent to improve the efficiency of D. The Inadequacy of Existing processing oil and gas use throughout its range, due to ongoing Regulatory Mechanisms development of oil and gas with authorizations on Federal lands. The associated pipelines, construction of Local Laws and Regulations two BLM pilot project offices for new road and utility ROWs, road Approximately 3 percent of Phacelia Colorado are in the Glenwood Springs widening, and construction of access submutica occupied habitat occurs on and Grand Junction Field Offices, both roads. P. submutica habitat is also private lands and another 12 percent on of which manage Phacelia submutica threatened by soil modification a combination of private and BLM lands habitat. Faster processing of permits to resulting from livestock trampling and (see Table 3 above). We are not aware drill increases the likelihood of ground ORV tracking. These threats are of of any city or county ordinances or disturbance on P. submutica habitat moderate magnitude because they are zoning that provide for protection or because the plants are ephemeral currently affecting at least 14 of the 25 conservation of P. submutica or its annuals that can only be found for about occurrences, and because the plants and habitat on private lands. 6 weeks during favorable years, and not their seed banks occur in small isolated all suitable habitat has been surveyed. State Laws and Regulations patches that are easily destroyed by When the plants are not present or small-scale disturbances. If these threats No State regulations protect rare plant previously documented, avoidance of increase in frequency or severity, the species in Colorado. The CNAP has the seed bank depends on field species is likely to become endangered entered into agreements with BLM to assessments of suitable habitat. Suitable within the foreseeable future. help protect the Pyramid Rock habitat covers more area than the ‘‘sweet occurrence of Phacelia submutica, by spots’’ where the plants grow, and B. Overutilization for Commercial, managing it as a Designated State suitable habitat has no regulatory Recreational, Scientific, or Educational Natural Area that is monitored by protection (BLM 2008d, p. 36). As a Purposes volunteer stewards. This management result, seed banks and suitable habitat agreement can be terminated with 90– are increasingly likely to be disturbed or Overutilization for commercial, day written notice by either party. removed during the process of recreational, scientific, or educational Therefore, we have concluded that the approving locations for new energy purposes is not known to be a threat to Designated Natural Area designation development projects. Phacelia submutica. Therefore, we are alone does not constitute an adequate Candidate species are managed by not addressing this factor in this regulatory mechanism to conserve P. BLM as sensitive species; BLM has a proposed rule. submutica. policy for management of sensitive C. Disease or Predation species that recommends avoidance and Federal Laws and Regulations minimization of threats to plants and Disease and herbivory are not known Section 365 of the Energy Policy Act habitat, as well as habitat conservation to affect Phacelia submutica. Therefore, of 2005 (42 U.S.C. 15801 et seq.) assessments and conservation

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agreements (BLM 2008d, pp. 8, 36–38). covers more than a third of the known available, but they do not provide No assessments or agreements have range for this species (BLM 2005b, p. 5). regulations to protect this species from been formalized for Phacelia submutica. Part of South Shale Ridge was losing habitat and seed banks to energy As opposed to listed species, biological recommended as an ACEC for development projects, cattle trampling, assessments or consultation with the protection of P. submutica in 1995, but or ORV traffic over the next 10 to 20 Service are not required for BLM- was not designated as an ACEC (Burt years. Therefore, this plant is likely to designated sensitive species during the and Spackman 1995, p. 36) in that area. become endangered within the authorization process for oil and gas use Portions of South Shale Ridge that were foreseeable future. on Federal lands (BLM 2008d, p. 33). withheld from leasing in the past were E. Other Natural or Manmade Factors Phacelia submutica is currently on leased for oil and gas development in Affecting Its Continued Existence the sensitive species list for the USFS, November 2005 (BLM 2005b, p. 5). Region 2, which includes all USFS These leases were subsequently deferred Climate change is likely to affect lands in Colorado. The USFS manages pending development of a new Resource Phacelia submutica because seed less than 10 percent of the suitable Management Plan for the Grand germination, seed dormancy, and habitat for P. submutica (Occurrence H, Junction Field Office (Ewing 2008c, persistence of the seed bank are all CNHP 2009g, records q, r, s, t). A pers. comm.; BLM 2005b, p. 5). If the directly dependent on precipitation and proposed Lower Battlement Mesa BLM sells these leases, then 8 ac (3 ha) temperature patterns (Levine et al. 2008, Research Natural Area to protect the of occupied P. submutica habitat within p. 805). As described above, climate species on the White River National about 65 ac (26 ha) of suitable habitat modeling is not currently to the level Forest has not been formally established will be newly opened to natural gas that we can predict the amount of (Ladyman 2003, pp. 8, 23; Proctor 2010, development in a previously temperature and precipitation change pers. comm). If established, protection undeveloped area (Ewing 2009, map). within the limited range of P. would include restrictions on ORV use, Pyramid Rock is adjacent to South submutica. Therefore, this discussion livestock grazing, and resource Shale Ridge, and the Pyramid Rock generally addresses what could happen extraction. Trampling of the habitat of P. occurrence of Phacelia submutica is under the current climate predictions. submutica by cattle has been observed within the BLM Pyramid Rock ACEC, However, we need further refinement of at three of the four occupied sites on including an estimated 31 to 2,055 the current predictions to draw more USFS land (CNHP 2009g, records q, r, plants (depending on the year) within reliable conclusions concerning the t). 20 occupied ac (8 ha) on 160 ac (64.7 effects of climate change on the species. The BLM policy of avoidance and ha) of suitable habitat (CNHP 2009g, Localized projections suggest the minimization of threats to plants and record c; Wenger 2009, pp. 1-11). The Southwest, including Colorado, may habitatmay not adequately protect ACEC designation carries no protection experience the greatest temperature Phacelia submutica because the plants in and of itself (BLM 2006, pp. 2–65). increase of any area in the lower 48 can only be found for a few weeks Stipulations of no new surface States (IPCC 2007, p. 30). It is very during years when growing conditions occupancy or ground disturbance apply likely that hot extremes, heat waves, have been favorable (Burt and to this ACEC for protection of candidate, and heavy precipitation will increase in Spackman 1995, p. 8). Thus, well- proposed, and listed plant species. frequency (IPCC 2007, p. 46). A 10- to intentioned avoidance and However, due to the possibility of 30-percent decrease in runoff in mid- minimization measures may not be exceptions being granted, we cannot latitude western North America is implemented if no plants are seen even predict with any degree of certainty projected by the year 2050 based on an in areas where subsequent timely what stipulations will actually be ensemble of 12 climate models (Milly et surveys would likely demonstrate a applied to the plant or its habitat that al. 2005, p. 1). persistent seed bank. Because available ensure the long term conservation of the Future changes in the timing of the inventories are not all recent, and species. BLM installed cable fence in first major spring rains each year, and drilling permits are expedited, plant 2007 to deter ORVs from crossing temperatures associated with the first occurrences, especially as seed banks, habitat for a federally threatened cactus major spring rains each year may more may be overlooked in the permitting (Sclerocactus glaucus, Colorado strongly affect germination and process. The BLM attempts to avoid hookless cactus) and P. submutica. The persistence of ephemeral annual plants disturbances that would adversely affect BLM excluded this ACEC from a South than changes in season-long rainfall sensitive species’ viability or trend the Shale Ridge lease sale in 2005 (CNHP (barring severe droughts) (Levine et al. species toward Federal listing. This 2005, p. 5; BLM 2005b, p. 5). P. 2008, p. 805). Increasing environmental includes avoidance of suitable habitat if submutica plants have not been directly variance might decrease extinction risk it can be identified as such (BLM 2008d, impacted since the fence was installed, for rare desert ephemeral plants, pp. 8, 36; BLM 2008e, pp. 5–7). In spite and existing pipeline and roads remain because these plants typically rely on of such efforts, pipeline ROWs exist outside the fence. The ACEC has extremely good years to restock the within 20 ft (6 m) and 100 ft (30 m) of provided adequate protection thus far persistent seed bank while extremely known P. submutica occurrences for about 5 percent of the known bad years have little impact (Meyer et al. (DeYoung 2009f, pers. comm.). We occupied habitat for the species (CNHP 2006, p. 901). However, extremely long recommend buffers of 656 ft (200m) 2009g, record c). droughts resulting from climate change, between the edge of disturbance and No adequate regulatory mechanisms with no good years for replenishing the suitable plant habitat to protect the currently exist to protect Phacelia seed bank, would likely cause Phacelia plants from destruction by vehicles that submutica. We consider the inadequacy submutica to become endangered. A stray outside of the project area, runoff, of existing regulatory mechanisms to be persistent seed bank enables the species erosion, dust deposition, or other a significant and ongoing threat to P. to survive drought. However, because indirect effects such as destruction of submutica because no formal plans or the soil can remain bare of P. submutica pollinator nesting habitat. agreements beyond one ACEC are in plants for several years, it is difficult to Five occurrences of Phacelia place to protect this plant. Sensitive identify and protect the seemingly submutica are located on BLM land in species designations provide policies to unoccupied habitat that occurs in small, an area called South Shale Ridge that be carried out with the resources isolated patches that are easily

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destroyed by small-scale disturbances, The main occurrence of Ipomopsis (Spackman-Panjabi 2008, pers. comm.). and can be overlooked during habitat polyantha includes 3 mi (4.8 km) of Three of the 4 viable occurrences are on assessments. The longer the species highway ROW and the private lands owned by an energy development remains dormant, the less likely it is properties that extend 0.25 to 1.2 mi (0.4 company. The energy development that we will know if an area is occupied, to 1.9 km) on either side of the highway. company has pledged to manage reducing our ability to avoid impacts to A smaller occurrence of about 23 ac (9 development to minimize impacts to the the species and protect it from becoming ha) includes highway ROWs, private plants; however, the agreement is not endangered. land, and 20 ac (8 ha) of BLM land. The legally binding. The fourth occurrence, While current climate change loss or fragmentation of either on BLM land, is subject to disturbance predictions are not reliable enough at occurrence would represent a as a result of the ongoing CERCLA the local level for us to draw substantial loss to the viability of the project and road maintenance. The loss conclusions about its effects on P. species. Both known occurrences face of any one occurrence would represent submutica, it is likely that there will be ongoing, new, and potential threats, a substantial diminution in the viability drying trends in the future and the seeds including commercial, residential and of the species. All four known will remain dormant for long periods. municipal development; associated road occurrences face ongoing or potential This would make it increasingly and utility improvements and threats, including oil and gas difficult to detect occupied habitat and maintenance; heavy livestock use; development, oil shale mining and avoid destruction of habitat and more inadequacy of existing regulatory associated impacts, road maintenance, likely that the species will become mechanisms; fragmented habitat; and inadequacy of existing regulatory endangered. prolonged drought conditions. The level mechanisms, and potential stochastic Proposed Determination of threat for I. polyantha is high due to events. The level of threats this poses the direct overlap of rapid land for Penstemon debilis is considered high We have carefully assessed the best development on 91 percent of the due to the direct overlap of energy scientific and commercial information known suitable habitat. The County and resources and all known species available regarding past, present, and Town Community Plan includes high to occurrences. The BLM RFD scenario future threats to Ipomopsis polyantha, low density development over the predicts extensive gas development Penstemon debilis, and Phacelia species’ entire range. Private within or near the species’ range within submutica. Section 3(6) of the Act landowners are considering commercial the foreseeable future (BLM 2005b, pp. defines an endangered species as ‘‘any and residential development that would 4–11). The BLM RFD, in conjunction species which is in danger of extinction include a parcel at the intersection of with the stated intention of the owner throughout all or a significant portion of US 160 and US 84 that currently of the land containing the majority of its range,’’ and section 3(20) defines a contains the highest density of plants. the plants to develop natural gas in the threatened species as ‘‘any species Planned development will transform vicinity of the plant occurrences, could which is likely to become an the land adjacent to US 84, at the center result in disturbance to the remaining endangered species within the of the species’ distribution, from low- occurrences within the next 20 years, foreseeable future throughout all or a density residential/agricultural land use resulting in the species being likely to significant portion of its range.’’ Under to commercial, townhome, and higher become endangered. the Act and our implementing density residential use. The cumulative The primary factors threatening regulations, a species may warrant impact of current and planned Penstemon debilis are: the present or listing if it is endangered or threatened development could result in extensive threatened destruction, modification or throughout all or a significant portion of disturbance and destruction of the curtailment of P. debilis habitat and its range. Each of the three endemic remaining habitat within the next 5 to range; and the inadequacy of existing plant species proposed for listing in this 10 years, putting the species in danger regulatory mechanisms. These factors rule is highly restricted in its range and of extinction. pose immediate threats to the species the threats occur throughout its range. On the basis of the best available because they have been ongoing. Therefore, we assessed the status of information, we propose to list However, these threats are moderate in each species throughout its entire range. Ipomopsis polyantha as an endangered severity because actual impacts to In each case, the threats to the survival species. Endangered status reflects the individual plants and occupied habitat of these species occur throughout the vulnerability of this species to threat as a result have been, and are expected species’ range and are not restricted to factors negatively affecting it and its to be limited, and the species is able to any particular significant portion of that limited and restricted habitat. I. slowly recover and recolonize after range. Accordingly, our assessment and polyantha is in danger of extinction disturbance. Therefore, on the basis of proposed determination applies to each throughout all of its range. the best available information, we species throughout its entire range. Our propose to list P. debilis as a threatened proposed determination for each species Penstemon debilis species. Threatened status reflects the is presented below. Extremely low numbers and a highly vulnerability of this species to factors restricted geographic range make that negatively affect the species and its Ipomopsis polyantha Penstemon debilis particularly limited and restricted habitat. The species’ highly restricted soil susceptible to becoming endangered in Penstemon debilis is likely to become requirements and geographic range the foreseeable future. Threats to the endangered in the foreseeable future if make it particularly susceptible to species and its habitat include energy present threats increase. extinction at any time due to development, road maintenance, commercial, municipal, and residential inadequacy of existing regulatory Phacelia submutica development; associated road and mechanisms, and stochastic events (see The current range of Phacelia utility improvements and maintenance; Factors A, D, and E). submutica is subject to human-caused heavy livestock use; inadequacy of The total estimated number of plants modifications from natural gas existing regulatory mechanisms; in the 4 viable occurrences is about exploration and production with fragmented habitat; and prolonged 4,000 individuals. It is likely that associated expansion of pipelines, drought (see Factors A, C, D, and E). additional unknown occurrences exist roads, and utilities; development within

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the Westwide Energy Corridor; Available Conservation Measures and implement recovery plans for the increased access to the habitat by ORVs; Conservation tools provided by the conservation of endangered and soil and seed disturbance by cattle Service’s Candidate Conservation threatened species. The recovery (Factor A); and inadequate regulations Program are available for these three planning process involves the (Factor D). The species’ small species. Our Candidate Conservation identification of actions that are geographic range, highly specific soil Program assesses species and develops necessary to halt or reverse the species’ and germination requirements, limited and facilitates the use of voluntary decline by addressing the threats to its seed dispersal, fragmented habitat, conservation tools for collaborative survival and recovery. The goal of this prolonged seed dormancy, and potential conservation of candidate and other process is to restore listed species to a seed bank depletion by prolonged species-at-risk and their habitats, so that point where they are secure, self- sustaining, and functioning components drought (Factor E) make P. submutica they do not need the protection of the of their ecosystems. vulnerable to these threats to an extent Act. Candidate Conservation that the species may become Recovery planning includes the Agreements (CCAs) could provide development of a recovery outline endangered within the foreseeable adequate regulatory mechanisms for shortly after a species is listed, future (10 to 20 years), depending these three species if such agreements preparation of a draft and final recovery primarily on the rate of future energy could be finalized by the time of our plan, and revisions to the plan as development. final listing determination. The CCAs significant new information becomes Phacelia submutica occurs on about are voluntary conservation agreements available. The recovery outline guides 104 ac (42 ha) of known occupied between the Service and one or more the immediate implementation of urgent habitat (see Table 3 above) (CNHP public or private parties that identify recovery actions and describes the 2009g, records a–hh; CNHP 2010, threats to candidate species, plan process to be used to develop a recovery records ii–jj; WestWater Engineering actions to address threats and conserve plan. The recovery plan identifies site- 2007, pp. 16, 17, 19, 27). All known the species, and implement specific management actions that will occurrences are in the midst of the third conservation measures. achieve recovery of the species, Because the three species are largest natural gas-producing area in measurable criteria that determine when narrowly distributed on lands owned by Colorado (COGCC 2008, p. 1). Based on a species may be downlisted or delisted, a relatively small number of the rate of current and proposed energy and methods for monitoring recovery landowners, we believe that the development over the entire range of the progress. Recovery plans also establish development of CCAs with the BLM and species (COGCC 2008 p. 1; COGCC 2009 a framework for agencies to coordinate with private entities and State and local their recovery efforts and provide p. 1; Ewing 2009, map), we estimate that agencies could be effective in at least 50 percent of the known habitat estimates of the cost of implementing addressing the threats. We are open to recovery tasks. Recovery teams has the potential to be modified or working with any landowners on destroyed within 10 to 20 years, thus (comprised of species experts, Federal developing such plans to assure the and State agencies, non-government making it likely that the species will conservation of these species. Any such become endangered within that time. organizations, and stakeholders) are agreement finalized before our listing often established to develop recovery The plants and their seed banks occur decision will be evaluated according to plans. When completed, the recovery in small, isolated patches that are easily our Policy on Evaluating Conservation outline, draft recovery plan, and the destroyed by small-scale disturbances. Efforts When Making Listing Decisions final recovery plan will be available on In the past 20 years, we have found (68 FR 15100, March 28, 2003) to our website (http://www.fws.gov/ three new occurrences, but no determine if the agreement constitutes endangered), or from our Western expansion of the known range of the an adequate regulatory mechanism. Colorado Ecological Services Field species (CNHPg 2009, a–hh; CNHP Conservation measures provided to Office (see FOR FURTHER INFORMATION 2010, records ii–jj; WestWater species listed as endangered or CONTACT). Engineering 2007, pp. 16, 17, 19, 27). threatened under the Act include Implementation of recovery actions Numbers of flowering plants fluctuate, recognition, recovery actions, generally requires the participation of a but they do not disperse seeds beyond requirements for Federal protection, and broad range of partners, including other the existing patches of unique soil that prohibitions against certain practices. Federal agencies, States, non- are separated from one another by a few Recognition through listing results in governmental organizations, businesses, yards or several miles (Ewing 2008b, public awareness and conservation by and private landowners. Examples of map). Any loss of occupied habitat will Federal, State, and local agencies, recovery actions include habitat be a permanent loss for the foreseeable private organizations, and individuals. restoration (e.g., restoration of native future, and cause a decline in the status The Act encourages cooperation with vegetation), research, captive of the species. the States and requires that recovery propagation and reintroduction, and actions be carried out for all listed outreach and education. The recovery of On the basis of the best available species. The protection measures many listed species cannot be information, we propose to list Phacelia required of Federal agencies and the accomplished solely on Federal lands submutica as a threatened species. prohibitions against certain activities because their range may occur primarily Threatened status reflects the are discussed, in part, below. or solely on non-Federal lands. vulnerability of this species to factors The primary purpose of the Act is the Achieving recovery of these species that negatively affect the species and its conservation of endangered and requires cooperative conservation efforts limited and restricted habitat. While not threatened species and the ecosystems on private and public lands. in immediate danger of extinction, P. upon which they depend. The ultimate If these three plant species are listed, submutica has the strong potential to goal of such conservation efforts is the funding for recovery actions will be become an endangered species in the recovery of these listed species, so that available from a variety of sources, foreseeable future if habitat is lost and they no longer need the protective including Federal budgets, State existing seed banks cannot expand to measures of the Act. Subsection 4(f) of programs, and cost share grants for non- maintain the species’ range. the Act requires the Service to develop Federal landowners, the academic

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community, and nongovernmental Department of Agriculture and Natural under the Act will offer additional organizations. In addition, under section Resources Conservation Service (USDA- protection to these species. 6 of the Act, the State of Colorado NRCS) The Act, 50 CFR 17.62, and 50 CFR would be eligible for Federal funds to Penstemon debilis—Oil and gas 17.72 also provide for the issuance of implement management actions that leasing, exploration, and permitting; oil permits to carry out otherwise promote the protection and recovery of shale research; authorization of prohibited activities involving Ipomopsis polyantha, Penstemon transmission towers, pipelines and endangered and threatened plants under debilis, and Phacelia submutica. power lines; reclamation actions; travel certain circumstances. Such permits are Information on our grant programs that management; and authorization of road available for scientific purposes and to are available to aid species recovery can maintenance by the BLM. Other types of enhance the propagation or survival of be found at: http://www.fws.gov/grants. actions that may require consultation the species. We anticipate that the only Although Ipomopsis polyantha, include provision of Federal funds to permits that would be sought or issued Penstemon debilis, and Phacelia State and private entities through for Ipomopsis polyantha, Penstemon submutica are only proposed for listing Federal programs, such as the Service’s debilis, and Phacelia submutica would under the Act at this time, please let us Landowner Incentive Program, State be in association with research and know if you are interested in Wildlife Grant Program, and Federal recovery efforts, as these species are not participating in recovery efforts for Aid in Wildlife Restoration program, as common in cultivation or in the wild. these species. Additionally, we invite well as the various grants administered Requests for copies of the regulations you to submit any new information on by USDA-NRCS. regarding listed species and inquiries these species whenever it becomes Phacelia submutica—Oil and gas about prohibitions and permits may be available and any information you may leasing, exploration, permitting, addressed to U.S. Fish and Wildlife have for recovery planning purposes to development, pipelines and Service, Ecological Services, P.O. Box FOR FURTHER the person listed under transmission lines; permitting of 25486 - DFC, Denver, CO 80225-0486 INFORMATION CONTACT. grazing; authorization of travel routes; (telephone 303-236-4256; facsimile 303- Section 7(a) of the Act requires road construction or maintenance by the 236-0027). Federal agencies to evaluate their BLM or the USFS; and authorization of actions with respect to any species that Critical Habitat pipeline and power line routes within is proposed or listed as endangered or Background threatened and with respect to its the Westwide Energy Corridor. Other critical habitat, if any is designated. types of actions that may require Critical habitat is defined in section Regulations implementing this consultation include water reservoir 3(5)(A) of the Act as: interagency cooperation provision of the construction and provision of Federal (i) The specific areas within the Act are codified at 50 CFR part 402. funds to State and private entities geographical area occupied by the Section 7(a)(4) of the Act requires through Federal programs, such as the species, at the time it is listed in Federal agencies to confer with the Service’s Landowner Incentive Program, accordance with the Act, on which are Service on any action that is likely to and various grants administered by found those physical or biological jeopardize the continued existence of a USDA-NRCS. features species proposed for listing or result in The Act and its implementing (I) essential to the conservation of the destruction or adverse modification of regulations set forth a series of general species and proposed critical habitat. If a species is prohibitions and exceptions that apply (II) which may require special listed, section 7(a)(2) of the Act requires to threatened and endangered plants. management considerations or Federal agencies to ensure that activities All prohibitions of section 9(a)(2) of the protection; and they authorize, fund, or carry out are not Act, implemented by 50 CFR 17.61 and (ii) specific areas outside the likely to jeopardize the continued 50 CFR 17.71, apply. These geographical area occupied by the existence of the species or destroy or prohibitions, in part, make it illegal for species at the time it is listed, upon a adversely modify its critical habitat. If a any person subject to the jurisdiction of determination that such areas are Federal action may affect a listed the United States to import or export, essential for the conservation of the species or its critical habitat, the transport in interstate or foreign species. responsible Federal agency must enter commerce in the course of a commercial Conservation, as defined under into formal consultation with the activity, sell or offer for sale in interstate section 3(3) of the Act, means to use and Service. or foreign commerce, or remove and the use of all methods and procedures Federal agency actions within the reduce the species to possession from that are necessary to bring an habitat of these species that may require areas under Federal jurisdiction. In endangered or threatened species to the conference or consultation or both, as addition, for plants listed as point at which the measures provided described in the preceding paragraph, endangered, the Act prohibits the under the Act are no longer necessary. include the following for each species: malicious damage or destruction on Such methods and procedures include, Ipomopsis polyantha—Permitting of areas under Federal jurisdiction and the but are not limited to, all activities grazing and authorization of utility or removal, cutting, digging up, damaging, associated with scientific resources access ROWs by the BLM. Other types or destroying of such plants in knowing management such as research, census, of actions that may require consultation violation of any State law or regulation, law enforcement, habitat acquisition include provision of Federal funds to including State criminal trespass law. and maintenance, propagation, and State and private entities through Certain exceptions to the prohibitions transplantation. Federal programs, such as Colorado apply to agents of the Service and State Critical habitat receives protection Department of Transportation highway conservation agencies. Colorado’s under section 7 of the Act through the construction or improvement projects, Endangered Species law does not prohibition against Federal agencies Housing and Urban Development Tax currently cover plants and does not carrying out, funding, or authorizing the Credit Assistance Program, the Service’s provide protection to Ipomopsis destruction or adverse modification of Landowner Incentive Program, and polyantha, Penstemon debilis, and critical habitat. Section 7(a)(2) requires various grants administered by the U.S. Phacelia submutica. Therefore, listing consultation on Federal actions that

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may affect critical habitat. The available. They require our biologists, to threatened. Our regulations (50 CFR designation of critical habitat does not the extent consistent with the Act and 424.12(a)(1)) state that the designation affect land ownership or establish a with the use of the best scientific data of critical habitat is not prudent when refuge, wilderness, reserve, preserve, or available, to use primary and original one or both of the following situations other conservation area. Such sources of information as the basis for exist: (1) The species is threatened by designation does not allow the recommendations to designate critical taking or other human activity, and government or public to access private habitat. identification of critical habitat can be lands. Such designation does not When we determine which areas expected to increase the degree of threat require implementation of restoration, should be designated as critical habitat, to the species, or (2) such designation of recovery, or enhancement measures by our primary source of information is critical habitat would not be beneficial non-Federal landowners. Where a generally the information developed to the species. landowner seeks or requests Federal during the listing process for the There is no documentation that agency funding or authorization for an species. Additional information sources Ipomopsis polyantha, Penstemon action that may affect a listed species or may include the recovery plan for the debilis, or Phacelia submutica are critical habitat, the consultation species, articles in peer-reviewed threatened by collection or other requirements of section 7(a)(2) of the journals, conservation plans developed intentional taking. In the absence of Act would apply, but even in the event by States and counties, scientific status finding that the designation of critical of a destruction or adverse modification surveys and studies, biological habitat would increase threats to a finding, the Federal action agency’s and assessments, or other unpublished species, if there are any benefits to a the applicant’s obligation is not to materials and expert opinion or critical habitat designation, then a restore or recover the species, but to personal knowledge. designation is prudent. The potential implement reasonable and prudent Habitat is often dynamic, and species benefits include: (1) Triggering may move from one area to another over alternatives to avoid destruction or consultation under section 7 of the Act, time. Furthermore, we recognize that adverse modification of critical habitat. in new areas for actions in which there critical habitat designated at a particular For inclusion in a critical habitat may be a Federal nexus where it would point in time may not include all of the designation, the habitat within the not otherwise occur because, for habitat areas that we may later geographical area occupied by the example, it is or has become determine are necessary for the recovery species at the time it was listed must unoccupied or the occupancy is in of the species. For these reasons, a contain the physical and biological question; (2) focusing conservation features essential to the conservation of critical habitat designation does not activities on the most essential features the species, and be included only if signal that habitat outside the and areas; (3) providing educational those features may require special designated area is unimportant or may benefits to State or county governments management considerations or not be required for recovery of the or private entities; and (4) preventing protection. Critical habitat designations species. people from causing inadvertent harm identify, to the extent known using the Areas that are important to the to the species because they do not know best scientific and commercial data conservation of the species, but are it may be present. available, habitat areas that provide outside the critical habitat designation, essential life cycle needs of the species will continue to be subject to The primary regulatory effect of (areas on which are found the physical conservation actions we implement critical habitat is the section 7(a)(2) and biological features laid out in the under section 7(a)(1) of the Act. Areas requirement that Federal agencies appropriate quantity and spatial that support occurrences also are subject refrain from taking any action that arrangement for the conservation of the to the regulatory protections afforded by destroys or adversely affects critical species). Under the Act and regulations the section 7(a)(2) jeopardy standard, as habitat. At present, the only known at 50 CFR 424.12, we can designate determined on the basis of the best extant individuals of Ipomopsis critical habitat in areas outside the available scientific information at the polyantha occur on private, town, geographical area occupied by the time of the agency action. Federally county, and BLM lands, and on Federal species at the time it is listed only when funded or permitted projects affecting highway ROWs. Most of the known we determine that those areas are listed species outside their designated individuals of Penstemon debilis occur essential for the conservation of the critical habitat areas may still result in on private land; however, species and that designation limited to jeopardy findings in some cases. approximately 18 percent of the those areas occupied at the time of Similarly, critical habitat designations individuals occur on Federal lands. listing would be inadequate to ensure made on the basis of the best available Approximately 3 percent of known the conservation of the species. information at the time of designation occupied habitat for Phacelia submutica Section 4 of the Act requires that we will not control the direction and occurs on private lands and another 12 designate critical habitat on the basis of substance of future recovery plans, percent on a combination of private and the best scientific, commercial, and habitat conservation plans, or other BLM lands, with the remaining 85 economic data available. Further, our species conservation planning efforts if percent occurring on BLM and USFS Policy on Information Standards under new information available at the time of lands. Lands that may be designated as the Act (published in the Federal these planning efforts calls for a critical habitat for these species in the Register on July 1, 1994 (59 FR 34271)), different outcome. future may be subject to Federal actions the Information Quality Act (section 515 that trigger the section 7 consultation of the Treasury and General Prudency Determination requirement. All projects taking place Government Appropriations Act for Section 4(a)(3) of the Act, as on Federal lands that may affect critical Fiscal Year 2001 (Pub. L. 106-554; H.R. amended, and implementing regulations habitat would require consultation. 5658)), and our associated Information (50 CFR 424.12) require that, to the Projects on private land would require Quality Guidelines, provide criteria, maximum extent prudent and consultation if they include a Federal establish procedures, and provide determinable, the Secretary designate action, such as the granting of Federal guidance to ensure that our decisions critical habitat at the time the species is monies for conservation projects or the are based on the best scientific data determined to be endangered or need for Federal permits for projects.

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There also may be some educational We are currently unable to identify features essential to the conservation of or informational benefits to the the essential physical and biological P. submutica, we are unable to identify designation of critical habitat. features for Ipomopsis polyantha, areas that contain these features. Educational benefits include the Penstemon debilis, and Phacelia Although we have determined that notification of landowners, land submutica, because information on the the designation of critical habitat is managers, and the general public of the physical and biological features that are prudent for Ipomopsis polyantha, importance of protecting the habitat of considered essential to the conservation Penstemon debilis, and Phacelia this species. In the case of I. polyantha, of these species is not sufficiently submutica, the biological needs of these P. debilis, and P. submutica, these known at this time. Explanations for species are not sufficiently well known aspects of critical habitat designation each species follow: to identify the physical and biological would potentially benefit the Ipomopsis polyantha—As discussed features that may be essential for the conservation of these species. Therefore, in the ‘‘Species Information’’ section of conservation of these species, or those because we have determined that the this proposed rule, the historical range areas essential to the conservation of designation of critical habitat will not of the species is unknown, and access these species. Additionally, we have not likely increase the degree of threat to to potential habitat on private land is gathered sufficient economic and other these species and may provide some restricted. The role of disturbance in the data on the impacts of a critical habitat measure of benefit, we find that species’ spread and persistence is designation. These factors must be designation of critical habitat is prudent currently unknown. Our ability to considered as part of a designation for I. polyantha, P. debilis, and P. translocate the species is limited at this procedure. Therefore, we find that submutica. time. Key features of the plant’s life critical habitat for I. polyantha, P. history, such as longevity, dispersal debilis, and P. submutica is not Critical Habitat Determinability mechanisms, or vectors for pollination, determinable at this time. We intend to As stated above, section 4(a)(3) of the are not entirely known. Much of the continue gathering information Act requires the designation of critical plant community where the remaining regarding the essential life-history habitat concurrently with the species’ individuals of I. polyantha are found requirements of these species to listing ‘‘to the maximum extent prudent has been highly modified by the facilitate identification of essential and determinable.’’ Our regulations at 50 presence of grazing livestock and road features and areas. Field research in CFR 424.12(a)(2) state that critical maintenance activities. The poor 2010 will increase our understanding of habitat is not determinable when one or viability of species’ occurrences pollinator needs and soil characteristics both of the following situations exist: observed in recent years indicates that for P. submutica, of development status (i) Information sufficient to perform current conditions are not sufficient to in I. polyantha habitat, and of the required analyses of the impacts of the meet the basic biological requirements habitat for the new occurrence of P. designation is lacking, or of this species. Although we can debilis found in 2009. We will evaluate (ii) The biological needs of the species surmise that habitat degradation from the needs of I. polyantha, P. debilis, and are not sufficiently well known to threats described under Factor A above P. submutica within the ecological permit identification of an area as has contributed to the decline of the context of the broader ecosystems in critical habitat. species, we do not know specifically which they occur, similar to the what essential physical or biological approach that we recently used in our When critical habitat is not features of that habitat are currently final designation of critical habitat for determinable, the Act provides for an lacking for I. polyantha. Because we are 47 species endemic to the island of additional year to publish a critical unable to identify the physical and Kauai (October 21, 2008; 73 FR 62592), habitat designation (16 U.S.C. biological features essential to the and will consider the utility of using 1533(b)(6)(C)(ii)). conservation of I. polyantha, we are this approach for these species as well. In accordance with section 3(5)(A)(i) unable to identify areas that contain Peer Review and 4(b)(1)(A) of the Act and the these features. regulations at 50 CFR 424.12, in Penstemon debilis—Although we In accordance with our joint policy determining which areas occupied by know the specific elevation, soil and published in the Federal Register on the species at the time of listing to geology types to which this species is July 1, 1994 (59 FR 34270), we will seek designate as critical habitat, we consider restricted, there is much more suitable the expert opinions of at least three the physical and biological features habitat in Western Colorado than that appropriate and independent specialists essential to the conservation of the known to be occupied by P. debilis. regarding this proposed rule. The species which may require special Further scientific studies are needed to purpose of peer review is to ensure that management considerations or determine the specific factors, unique to our determination of status for these protection. These include, but are not the occupied habitat, to better determine species is based on scientifically sound limited to: habitats suitable for designation as data, assumptions, and analyses. We (1) Space for individual and critical habitat. will invite these peer reviewers to population growth and for normal Phacelia submutica—Specific comment, during the public comment behavior; components of occupied versus non- period, on the specific assumptions and (2) Food, water, air, light, minerals, or occupied sites and soils have not been conclusions regarding the proposal to other nutritional or physiological analyzed for the Atwell Gulch and Shire list Ipomopsis polyantha as endangered requirements; members of the Wasatch Formation and Penstemon debilis and Phacelia (3) Cover or shelter; where the species occurs. Key features submutica as threatened, and our (4) Sites for breeding, reproduction, of the plant’s life history, such as proposed determination regarding and rearing (or development) of longevity of the seed bank, dispersal critical habitat for these species. We will offspring; and mechanisms, or vectors for pollination, send copies of this proposed rule to the (5) Habitats that are protected from are unknown. Pollinator requirements peer reviewers immediately following disturbance or are representative of the for habitat or alternate hosts have not publication in the Federal Register. historical geographical and ecological been identified. Because we are unable We will consider all comments and distributions of a species. to identify the physical and biological information we receive during the

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comment period on this proposed rule paragraphing, etc.) aid or reduce its References Cited during preparation of a final clarity? (4) Would the rule be easier to rulemaking. Accordingly, the final understand if it were divided into more A complete list of all references cited decision may differ from this proposal. (but shorter) sections? (5) Is the in this proposed rule is available on the description of the rule in the Internet at http://www.regulations.gov Public Hearings SUPPLEMENTARY INFORMATION section of or upon request from the Field The Act provides for one or more the preamble helpful in understanding Supervisor, Western Colorado public hearings on this proposal, if the emergency rule? What else could we Ecological Services Field Office (see FOR requested. Requests must be received do to make the rule easier to FURTHER INFORMATION CONTACT section). within 45 days after the date of understand? Author(s) publication of this proposal in the Send a copy of any comments that Federal Register. Such requests must be concern how we could make this rule The primary authors of this document sent to the address shown in the FOR easier to understand to Office of are staff members of the Western FURTHER INFORMATION CONTACT section. Regulatory Affairs, Department of the Colorado Ecological Services Field We will schedule one or more public Interior, Room 7229, 1849 C Street, Office (see FOR FURTHER INFORMATION hearings on this proposal, if any are NW., Washington, D.C. 20240. You also CONTACT section). requested, and announce the dates, may e-mail the comments to this List of Subjects in 50 CFR Part 17 times, and places of those hearings, as address: [email protected]. well as how to obtain reasonable Endangered and threatened species, accommodations, in the Federal Paperwork Reduction Act of 1995 (44 Exports, Imports, Reporting and Register and local newspapers at least U.S.C. 3501 et seq.) recordkeeping requirements, 15 days before the hearing(s). This proposed rule does not contain Transportation. Persons needing reasonable any new collections of information that accommodations to attend and require approval by Office of Proposed Regulation Promulgation participate in a public hearing should Management and Budget (OMB) under contact the Western Colorado Ecological the Paperwork Reduction Act. This rule Accordingly, we propose to amend Services Field Office at 970-243-2778, as would not impose new recordkeeping or part 17, subchapter B of chapter I, title soon as possible. To allow sufficient reporting requirements on State or local 50 of the Code of Federal Regulations, time to process requests, please call no governments, individuals, businesses, or as set forth below: later than 1 week before the hearing organizations. We may not conduct or PART 17—[AMENDED] date. Information regarding this sponsor and you are not required to proposed rule is available in alternative respond to a collection of information formats upon request. 1. The authority citation for part 17 unless it displays a currently valid OMB continues to read as follows: Required Determinations control number. Authority: 16 U.S.C. 1361-1407; 16 U.S.C. Clarity of the Rule National Environmental Policy Act 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99- 625, 100 Stat. 3500; unless otherwise noted. Executive Order 12866 requires each We have determined that agency to write regulations that are easy Environmental Assessments and 2. In § 17.12(h) add entries for to understand. We invite your Environmental Impact Statements, as Ipomopsis polyantha, Penstemon comments on how to make this rule defined under the authority of the debilis, and Phacelia submutica, in easier to understand including answers National Environmental Policy Act of alphabetical order under FLOWERING to questions such as the following: (1) 1969 (42 U.S.C. 4321 et seq.), need not PLANTS, to the List of Endangered and Are the requirements in the rule clearly be prepared in connection with Threatened Plants, as follows: stated? (2) Does the rule contain regulations adopted under section 4(a) technical language or jargon that of the Act. We published a notice § 17.12 Endangered and threatened interferes with its clarity? (3) Does the outlining our reasons for this plants. format of the rule (grouping and order determination in the Federal Register * * * * * of sections, use of headings, on October 25, 1983 (48 FR 49244). (h) * * *

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

FLOWERING PLANTS

*******

Ipomopsis Pagosa skyrocket U.S.A (CO) Polemoniaceae E NA NA polyantha

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Penstemon Parachute U.S.A. (CO) Plantaginaceae T NA NA debilis beardtongue

*******

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

Phacelia DeBeque phacelia U.S.A. (CO) Hydrophyllaceae T NA NA submutica

*******

* * * * * • Electronically: Go to the Federal trends (especially breeding and foraging Dated: June 8, 2010 eRulemaking Portal: http:// habitats), diet, and population Jeffrey L. Underwood, www.regulations.gov. In the Keyword abundance and trends (especially box, enter Docket No. FWS-R9-ES-2009- current recruitment data) of this species. Acting Director, U.S. Fish and Wildlife 0094 which is the docket number for Service. (2) Information on the effects of this rulemaking. Then, in the Search habitat loss and changing land uses on [FR Doc. 2010–15251 Filed 6–22–10; 8:45 am] panel on the left side of the screen the distribution and abundance of this BILLING CODE 4310–55–S under the Document Type heading, species and its principal food sources click on the Proposed Rules link to over the short and long term. DEPARTMENT OF THE INTERIOR locate this document. You may submit (3) Information on whether changing a comment by clicking on ‘‘Send a climatic conditions are affecting the Fish and Wildlife Service Comment or Submission.’’ species, its habitat, or its prey base. • By hard copy: Submit by U.S. mail (4) Information on the effects of other 50 CFR Part 17 or hand-delivery to: Public Comments potential threat factors, including live Processing, Attn: FWS-R9-ES-2009- capture and collection, domestic and [FWS-R9-ES-2009-0094] 0094; Division of Policy and Directives international trade, predation by other [MO92210-0-0010-B6] Management; U.S. Fish and Wildlife animals, and diseases of this species or Service; 4401 N. Fairfax Drive, Suite its principal food sources over the short Endangered and Threatened Wildlife 222; Arlington, VA 22203. and long term. and Plants; 90-Day Finding on a We will post all comments on http:// (5) Information on management Petition to List the Honduran Emerald www.regulations.gov. This generally programs for hummingbird Hummingbird as Endangered means that we will post any personal conservation, including mitigation information you provide us (see the AGENCY: Fish and Wildlife Service, measures related to conservation Interior. Information Solicited section below for programs, and any other private, tribal, more details). or governmental conservation programs ACTION: Notice of 90–day petition FOR FURTHER INFORMATION CONTACT: that benefit this species. finding and initiation of status review. Nicole Alt, Chief, Division of (6) Information relevant to whether SUMMARY: We, the U.S. Fish and Conservation and Classification, any populations of this species may Wildlife Service (Service), announce a Endangered Species Program, U.S. Fish qualify as distinct population segments. 90–day finding on a petition to list as and Wildlife Service, 4401 N. Fairfax (7) Information on captive endangered under the Endangered Drive, Room 420, Arlington, VA 22203; populations and captive breeding and Species Act of 1973, as amended (Act), telephone 703-358-2171; facsimile 703- domestic trade of this species in the the Honduran emerald hummingbird 358-1735. If you use a United States (Amazilia luciae). We find that the telecommunications device for the deaf (8) Genetics and taxonomy; petition presents substantial scientific (TDD), call the Federal Information (9) The factors that are the basis for or commercial information indicating Relay Service (FIRS) at 800-877-8339. making a listing determination for a that listing the Honduran emerald SUPPLEMENTARY INFORMATION: species under section 4(a) of the Act (16 U.S.C. 1531 et seq.), which are: hummingbird may be warranted. Request for Information Therefore, with the publication of this (a) The present or threatened notice, we are initiating a status review When we make a finding that destruction, modification, or of the Honduran emerald hummingbird substantial information is presented to curtailment of its habitat or range; to determine if listing is warranted. To indicate that listing a species may be (b) Overutilization for commercial, ensure that the status review is warranted, we are required to promptly recreational, scientific, or educational comprehensive, we are soliciting review the status of the species (status purposes; information and data regarding this review). To ensure that the status review (c) Disease or predation; species. is complete and based on the best (d) The inadequacy of existing available scientific and commercial regulatory mechanisms; or DATES: To allow us adequate time to information, we request information on (e) Other natural or manmade factors conduct this review, we request that we the Honduran emerald hummingbird. affecting its continued existence. receive information on or before August We request scientific and commercial Please include sufficient information 23, 2010. After this date, you must information from the public, concerned with your submission (such as full submit information directly to the governmental agencies, the scientific references) to allow us to verify any address in the FOR FURTHER INFORMATION community, industry, or any other scientific or commercial information CONTACT section). Please note that we interested parties on the status of the you include. may not be able to address or Honduran emerald hummingbird, We will base our status review on the incorporate information that we receive throughout its range, including but not best scientific and commercial after the above requested date. limited to: information available, including all ADDRESSES: You may submit comments (1) Information on taxonomy, information we receive during the by one of the following methods: distribution, habitat selection and public comment period. Please note that

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