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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2013-0081; Docket No. FWS-R6-ES-2013-0082; 4500030113]

RIN 1018-AY95; 1018-AZ61

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

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rules; withdrawal.

SUMMARY:

We, the U.S. Fish and Wildlife Service, withdraw the proposed rule to list Graham's beardtongue (

Penstemon grahamii

) and White River beardtongue (

Penstemon scariosus

var.

albifluvis

) as threatened species throughout their ranges under the Endangered Species Act of 1973, as amended. This withdrawal is based on our conclusion that the threats to the species as identified in the proposed rule no longer are as significant as we previously determined. We base this conclusion on our analysis of new information concerning current and future threats and conservation efforts. We find the best scientific and commercial data available indicate that the threats to the species and their habitats have been reduced so that the two species no longer meet the statutory definition of threatened or endangered species. Therefore, we are withdrawing both our proposed rule to list these species as threatened species and our proposed rule to designate critical habitat for these species.

DATES:

The proposed rules published on August 6, 2013 (78 FR 47590 and 78 FR 47832), are withdrawn as of August 6, 2014.

ADDRESSES:

The withdrawal of our proposed rules and supplementary documents are available on the Internet at

http://www.regulations.gov

at Docket Nos. FWS-R6-ES-2013-0081 and FWS-R6-ES-2013-0082, and at

http://www.fws.gov/mountain-prairie/species/plants/2utahbeardtongues/.

Comments and materials received, as well as supporting documentation used in the preparation of these withdrawals, are also available for public inspection, by appointment, during normal business hours at: U.S. Fish and Wildlife Service, Utah Ecological Services Field Office, 2369 West Orton Circle, Suite 50, West Valley City, Utah 84119; telephone 801-975-3330.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish this document.

Under the Endangered Species Act (Act), if a species is determined to be an endangered or threatened species throughout all or a significant portion of its range, we are required to promptly publish a proposal in the

Federal Register

and make a determination on our proposal within 1 year. On August 6, 2013, we issued proposed rules to list Graham's beardtongue and White River beardtongue as threatened species and to designate critical habitat because we determined there were threats from energy development, and cumulative threats from livestock grazing, invasive weeds, small population sizes, and climate change (78 FR 47590 and 78 FR 47832). However, this document withdraws our proposed rules to list the Graham's beardtongue and White River beardtongue as threatened species under the Act and designate critical habitat for these species because we have now determined that the threats to the two species have been reduced such that listing is not warranted.

The basis for our action.

Under the Act, we can determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. We have determined that the threats to the two species have been reduced such that listing is not warranted. Therefore, this document withdraws our proposed rules to list the Graham's beardtongue and White River beardtongue as threatened species under the Act and designate critical habitat.

Peer review and public comment.

We sought expert opinion from several appropriate and independent specialists to ensure that our proposed rules were based on scientifically sound data, assumptions, and analyses. We invited these peer reviewers to comment on our listing and critical habitat proposals. We also considered all comments and information received during the comment periods.

Background—Graham's Beardtongue

Previous Federal Actions

For a detailed description of Federal actions concerning Graham's beardtongue, please refer to our January 19, 2006, proposed rule to list the species and designate critical habitat (71 FR 3158); our December 19, 2006, withdrawal of the proposed rule to list the species and designate critical habitat (71 FR 76024); and our August 6, 2013 proposed rules to list the species and designate critical habitat (78 FR 47590; 78 FR 47832). In the document we published on December 19, 2006 (71 FR 76024), we addressed public comments, analyzed available data, and withdrew the proposed listing and critical habitat rule for Graham's beardtongue that we published on January 19, 2006 (71 FR 3158), concluding that threats to Graham's beardtongue, particularly energy development, were not as significant as previously believed and were not likely to endanger the species in the foreseeable future throughout all or a significant portion of its range.

On December 16, 2008, the Center for Native Ecosystems, Southern Utah Wilderness Alliance, Utah Native Plant Society (UNPS), and Colorado Native Plant Society filed a complaint in the United States District Court for the District of Colorado challenging the withdrawal of our proposal to list Graham's beardtongue. The court ruled in favor of the plaintiffs on June 9, 2011, vacating our December 2006 withdrawal and reinstating our January 2006 proposed rule.

In 2007, the Service, Bureau of Land Management (BLM), Uintah County, Utah Department of Natural Resources (DNR) and Utah School and Institutional Trust Lands Administration (SITLA) drafted a Conservation Agreement (CA) for the conservation of Graham's beardtongue and its ecosystem. Although this agreement was not signed by all parties and only partially implemented, several of the parties contributed to the conservation of the species in the spirit of the agreement. In particular, BLM signed the agreement and fulfilled their commitments by funding surveys, monitoring for plant demographics, funding a population viability analysis, and avoiding and minimizing impacts to

the species and its habitat from surface disturbances (Service 2007, pp. 11-12). Uintah County and Utah DNR also funded surveys for the species from 2008 to 2010.

The best available information for Graham's beardtongue has changed considerably since our January 2006 proposed rule was written and withdrawn. On August 6, 2013, we published a revised proposed listing rule (78 FR 47590) and a proposed critical habitat rule to reflect new information regarding Graham's beardtongue (78 FR 47832). In these same rules we also proposed to list and designate critical habitat for White River beardtongue. Upon publication of our proposed rules, we opened a 60-day comment period that closed on October 7, 2013.

Following publication of our proposed rules, the same parties that drafted the 2007 CA for Graham's beardtongue reconvened to evaluate species' surveys and distribution information and reassess the conservation needs of both the White River and Graham's beardtongues. Based on this evaluation, the parties completed a new conservation agreement (2014 CA, entire) that specifically addresses the threats identified in our 2013 proposed rule to list the two species (78 FR 47590, August 6, 2013). In the 2014 CA, the parties committed to conservation actions including establishing 17,957 hectares (ha) (44,373 acres (ac)) of occupied and unoccupied suitable habitat as protected conservation areas with limited surface disturbance and avoidance of plants by 91.4 m (300 ft). Additionally, the BLM agreed to avoid surface disturbances within 91.4 m (300 ft) of Graham's and White River beardtongue plants within and outside of conservation areas on BLM land (see Summary of Factors Affecting the Species, Energy Exploration and Development and Ongoing and Future Conservation Efforts). The parties also developed conservation measures to address the cumulative impacts from livestock grazing, invasive weeds, small population sizes, and climate change by continuing species monitoring, monitoring climate, reducing impacts from grazing when and where detected, and controlling invasive weeds (see Summary of Factors Affecting the Species, Cumulative Effects from All Factors and Ongoing and Future Conservation Efforts). The 2014 CA is discussed in detail below.

On May 6, 2014 (79 FR 25806), we announced the reopening of the public comment period on our August 6, 2013, proposed listing and proposed designation of critical habitat rules. At that time we also announced the availability of a draft economic analysis (DEA), a draft environmental assessment (EA), the draft 2014 CA, and an amended required determinations section of the proposal (78 FR 47590). We also announced the availability of 2013 survey results for the plants and our intent to hold a public information meeting and public hearing on May 28, 2014, in Vernal, Utah (79 FR 25806).

Species Information

Taxonomy and Species Description

Graham's beardtongue was described as a species in 1937 as an herbaceous perennial plant in the plantain family (Plantaginaceae). For most of the year when the plant is dormant, it exists as a small, unremarkable basal rosette of leaves. During flowering, the plant becomes a “gorgeous, large-flowered penstemon” (Welsh

et al.

2003, p. 625). Similar to other species in the beardtongue (

Penstemon

) genus, Graham's beardtongue has a strongly bilabiate (two-lipped) flower with a prominent infertile staminode (sterile male flower part)—the “beardtongue” that typifies the genus. The combination of its large, vivid pink flower and densely bearded staminode with short, stiff, golden-orange hairs makes Graham's beardtongue quite distinctive. Each year an individual plant can produce one to a few flowering stems that can grow up to 18 centimeters (cm) (7.0 inches (in)) tall (with some exceptions), with 1 to 20 or more flowers on each flowering stem.

Distribution and Trends

When we published the proposed listing rule in 2006, there were 109 plant records, or “points,” across Graham's beardtongue's known range, and the total species' population size was estimated at 6,200 individuals. Point data represent a physical location where one or more plants were observed on the ground. Point data are usually collected by GPS and stored as a “record” in a geographic information system database.

Since 2006, BLM, Uintah County, the Utah and Colorado Natural Heritage Programs and several private parties have completed many surveys for this species. The range of Graham's beardtongue is essentially the same as it was in 2006: A horseshoe-shaped band about 129 kilometers (80 miles) long and 9.6 km (6 mi) wide extending from the extreme southeastern edge of Duchesne County in Utah to the northwestern edge of Rio Blanco County in Colorado (Figure 1). However, over the last 7 years we have identified larger numbers of plants and a greater distribution of the species across its range. We now know of 5,076 points representing 40,333 plants—over six times the number of plants known at the time of our 2006 proposed rule and 8,631 more plants than known at the time of our 2013 proposed rule (BLM 2013d, UNHP 2013b, CNHP 2014). Although the overall number of known plants has increased with additional surveys, this does not mean the total population is increasing. Rather, many parties have surveyed a greater area and now have a more complete picture of how many total Graham's beardtongue individuals exist. We assume that the current known range of this species has not changed substantially from what it was historically, because even though we have found more plants, the boundaries of the known range of the species have not changed.

We mapped all plant points, including those from new 2013 survey data, and grouped them into populations (Figure 1). First, we followed standardized methods used by the national network of Natural Heritage Programs to identify the species' element occurrences (EO). EOs are plant points that are grouped together based on geographic proximity (NatureServe 2004, p. 6). Natural Heritage Program criteria (NatureServe 2004, p. 6) classify points into discrete EOs if they are within 2 km (1.2 mi) of each other and separated by suitable habitat. We did not always have specific habitat suitability information and in these cases relied on the 2 km (1.2 mi) distance as our primary classification factor. Next, we included updated survey information collected from 2006 to the present and determined the number of distinct EOs. At the time of our 2013 proposed rule, we had documented 24 EOs: 20 in Utah and 4 in Colorado. An additional 8,631 plants found in the 2013 field season were added to our EO mapping in 2014, which added five new populations and merged several other populations together, resulting in no change to the total number of populations (Figure 1). For the purpose of this document, we consider EOs to be synonymous with populations and hereafter will use the term “populations” when describing the distribution of the species.

BILLING CODE 4310-55-P

EP06AU14.001

Our understanding of the distribution of plants among populations has changed slightly since our 2013 proposed rule, reflecting the additional plants found during the 2013 surveys. We now estimate that one population (referred to as population 20) comprises about 18.3 percent of the species' total population, compared to our estimate of 23 percent in 2012. Population 19 contains the most plants with 27.8 percent of the entire population. Populations 19, 17, 13 and 20 combined comprise 91 percent of the known number of plants. In 2006 and 2013, we noted that population 20 was an important connectivity link between the Utah and Colorado populations of this species, and we still consider this to be true, especially given the large number of plants found in this population.

Approximately 52 percent of the total known population of Graham's beardtongue occurs on BLM-managed

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

Table 1—Number of Individuals of Graham's Beardtongue by Landowner

[* Data as presented in the 2013 proposed rule includes surveys through 2012; ** Data as presented in this 2014 withdrawal includes surveys through 2013.]

Number of

individuals

(2013 proposed rule)*

Percent of total (2013 proposed rule)*

Number of

individuals

(2014)**

Percent of total (2014)**

Federal

18,678

59

19,986

49.6

Private

8,137

26

8,525

21.1

State

4,887

15

11,822

29.3

Tribal

0

0

0

0

Total

31, 702

100

40,333

100

Population monitoring for Graham's beardtongue has been restricted to a handful of sites, thus limiting our knowledge of the population trend throughout its range. Our long-term monitoring information comes from two Graham's beardtongue sites in Utah within population 13 (see Figure 1) from 2004 to 2012, two additional sites within population 13 from 2010 to 2012, and one site in Colorado. The population 13 sites were stable and perhaps slowly increasing with a stochastic population growth rate just above one (McCaffery 2013a, p. 15). Recruitment and flowering for these Utah sites was low and sporadic, indicating that conditions were not always suitable for flowering to occur (McCaffery 2013a, p. 9). Although these two sites were stable, we do not know if this represents the trend of every population of the species across its range. The Colorado monitoring site showed that plant density remained similar between the 1986 to 1990 monitoring effort, and a renewed monitoring effort in 2005. In addition, the number of plants increased between 2009 to 2011 (BLM 2011, p. 6-7) but was lower in both years than the number counted in 2005. Small population sizes and low recruitment make this species more vulnerable to stochastic events, and without concerted conservation efforts, changes in stressors or habitat conditions may negatively impact the long-term growth of these sites (McCaffery 2013a, p. 19).

No link was found between reproduction and precipitation on a regional level, but it is likely that we do not completely understand the environmental factors affecting reproduction and survival (McCaffery 2013a, p. 16). A combination of several factors could be affecting population dynamics of Graham's beardtongue. For example, herbivory and climate could interact to influence reproduction. Plants at the Blue Knoll study site were negatively impacted by herbivory from tiger moth caterpillars (possibly

Arctia caja utahensis

) (see Grazing, below), but a cool, wet spring in 2011 may have reduced herbivory on reproductive plants (Dodge and Yates 2011, pp. 7-8). Further studies are necessary to determine if herbivory or other factors are driving population dynamics of this species.

Habitat

Graham's beardtongue is an endemic plant found mostly in exposed oil shale strata of the Parachute Creek Member and other unclassified members of the Green River geologic formation including the Douglas Creek Member. Most populations are associated with the surface exposure of the petroleum-bearing oil shale Mahogany ledge (Shultz and Mutz 1979, p. 40; Neese and Smith 1982, p. 64). Soils at these sites are shallow with virtually no soil horizon development, and the surface is usually covered with broken shale chips or light clay derived from the thinly bedded shale. Based on data up to 2012, about a third of all known point locations of plants in our files grow on slopes that are 10 degrees or less, with an average slope across all known points of 17.6 degrees (Service 2013, p. 2). The species occurs at an average elevation of 1,870 meters (m) (6,134 feet (ft)), with a range in elevation from 1,426 to 2,128 m (4,677 to 6,982 ft) (Service 2013, p. 4). Individuals of Graham's beardtongue usually grow on southwest-facing exposures (Service 2013, p. 1).

Graham's beardtongue is associated with a suite of species similarly adapted to xeric (very dry) growing conditions on highly basic calcareous shale soils, including saline wildrye (

Leymus salinus

), mountain thistle (

Cirsium eatonii

var.

eriocephalum

), spiny greasebush (

Glossopetalon spinescens

var.

meionandra

), Utah juniper (

Juniperus osteosperma

), two-needle piñon (

Pinus edulis

), and shadscale saltbush (

Atriplex confertifolia

) (UNHP 2013a, entire). Graham's beardtongue co-occurs with eight other rare species that are similarly endemic and restricted to the Green River Formation, including White River beardtongue. Other beardtongue species growing in the vicinity of Graham's beardtongue include thickleaf beardtongue (

Penstemon pachyphyllus

) and Fremont's beardtongue (

Penstemon fremontii

) (Fitts and Fitts 2008, pp. 13-28; Fitts and Fitts 2009, pp. 11-26; Fitts 2010, pp. 15-21; Fitts 2014, entire.), and these are likely important for supporting pollinators.

At higher elevations, Graham's beardtongue is found within sparse pinon-juniper woodland plant communities and on canyon rims. At lower elevations Graham's beardtongue is associated with a sparse desert shrubland dominated by shadscale saltbush.

Biology

Graham's beardtongue individuals live at least 10 years and likely longer; however, we do not know the plant's average life span (Service 2012a, p. 2). Graham's beardtongue is not as genetically diverse as other common, widespread beardtongues from the same region (Arft 2002, p. 5). However, populations 1 through 9 (see Figure 1) have minor morphological differences from the rest of the Graham's beardtongue populations (Shultz and Mutz 1979, p. 41) and may, due to geographic isolation, be genetically divergent from the remainder of the species' population, although this hypothesis has never been tested.

Graham's beardtongue usually flowers for a short period of time in late April through late June. Pollinators and flower visitors of Graham's beardtongue include the bees

Anthophora lesquerellae, Osmia sanrafaelae, Osmia rawlinsi,

the sweat bees

Lasioglossum sisymbrii

and

Dialictus

sp., and the masarid wasp

Pseudomasaris vespoides,

which is thought to be the primary pollinator for Graham's beardtongue (Lewinsohn and Tepedino 2007, p. 245; Dodge and Yates 2008, p. 30). At least one large pollinator, Hunt's bumblebee (

Bombus huntii

), is known to visit Graham's beardtongue (71 FR 3158, January 19, 2006), which is not unexpected due to the relatively large size of Graham's beardtongue's flowers compared to other beardtongues.

Graham's beardtongue has a mixed mating system, meaning individuals of this species can self-fertilize, but they produce more seed when they are cross-pollinated (Dodge and Yates 2009, p. 18). Thus, pollinators are important for maximum seed and fruit production. Based on the size of the largest Graham's beardtongue pollinators (i.e., Hunt's bumblebee), we expect pollinators are capable of travelling and transporting pollen for distances of at least 700 m (2,297 ft) (Service 2012b, pp. 8, 12). Therefore, maintaining sufficiently large numbers of reproducing plants with sufficient connectivity across the species' population distribution ensures cross-pollination, preserves genetic diversity, and prevents inbreeding depression (Dodge and Yates 2009, p. 18). Pollinators need a diversity of native plants for foraging, nesting, and egg-laying sites, and undisturbed places for overwintering (Shepherd

et al.

2003, pp. 49-50). Thus, it is important to protect vegetation diversity within and around Graham's beardtongue populations to maintain a diversity of pollinators.

Background—White River Beardtongue

Previous Federal Actions

On November 28, 1983, White River beardtongue was designated as a category 1 candidate under the Endangered Species Act of 1973, as amended (Act) (48 FR 53640). Category 1 candidate species were defined as “those species for which the Service has on file sufficient information on biological vulnerability and threat(s) to support issuance of a proposed rule to list but issuance of the proposed rule is precluded” (61 FR 7597, February 28, 1996). In the February 1996 candidate notice of review (CNOR) (61 FR 7596), we abandoned the use of numerical category designations and changed the status of White River beardtongue to a candidate under the current definition. We maintained White River beardtongue as a candidate species in subsequent updated CNORs up through the publication of the 2013 proposed rule to list the species.

On September 9, 2011, we reached an agreement with plaintiffs in Endangered Species Act Section 4 Deadline Litig., Misc. Action No. 10-377 (EGS), MDL Docket No. 2165 (D. DC) to systematically review and address the needs of all species listed in our 2010 CNOR, which included White River beardtongue. On August 6, 2013, we published a proposed rule to list Graham's and White River beardtongues and a proposed rule to designate critical habitat for both species (78 FR 47590; 78 FR 47832). As explained above in Background—Graham's beardtongue,

Previous Federal Actions,

a new conservation agreement was completed (2014 CA, entire) to specifically address the threats identified in our 2013 proposed rule. This conservation agreement along with the economic analysis of our 2013 proposed critical habitat designation and other supporting documents were made available for public review and comment as described above in Background—Graham's beardtongue,

Previous Federal Actions.

Species Information

Taxonomy and Species Description

White River beardtongue is in the plantain family (Plantaginaceae). It is an herbaceous, shrubby plant with showy lavender flowers. It grows up to 50 cm (20 in) tall, with multiple clusters of upright stems. It has long, narrow, green leaves. Like other members of the beardtongue genus, including Graham's beardtongue, White River beardtongue has a strongly bilabiate (two-lipped) flower with a prominent infertile staminode (sterile male flower part), or “beardtongue.” Blooming occurs from May into early June, with seeds produced by late June (Lewinsohn 2005, p. 9).

White River beardtongue was first described as a new species,

Penstemon albifluvis,

in 1982 (England 1982, entire). In 1984, the taxon was described as variety

P. scariosus

var.

albifluvis

(Cronquist

et al.

1984, p. 442).

P. s.

var

albifluvis

has a shorter corolla and shorter anther hairs than typical

P. scariosus.

White River beardtongue is also unique from

P. scariosus

because it is endemic to low-elevation oil shale barrens near the White River along the Utah-Colorado border (see Habitat below for more information), while typical

P. scariosus

habitat occurs at higher elevations on the West Tavaputs and Wasatch Plateaus of central Utah (Cronquist

et al.

1984, p. 442).

Distribution and Trends

The historical range of White River beardtongue has likely not changed since the species was first described in 1982 (England 1982, pp. 367-368). White River beardtongue was first discovered along the north bank of the White River 1 mile upstream from the Ignacio Bridge (England 1982, p. 367). The historical range was described as occurring from east central Uintah County, Utah, to Rio Blanco County, Colorado (England 1982, p. 367).

White River beardtongue's current range extends from Raven Ridge west of Rangely in Rio Blanco County, Colorado, to the vicinity of Willow Creek in Uintah County, Utah. The bulk of the species' range occurs between Raven Ridge and Evacuation Creek in eastern Utah, a distance of about 30 km (20 mi).

BILLING CODE 4310-55-P

EP06AU14.002

(Figure 2) (CNHP 2012, entire; UNHP 2012, entire). Herbarium collections from 1977 to 1998 indicate that the species' range might extend further west to Willow Creek, Buck Canyon, and Kings Well Road (UNHP 2012, entire). However, we have not revisited the herbarium collection locations to confirm the species' presence—it is possible that the herbarium collections represent individuals of the closely related and nearly indistinguishable Garrett's beardtongue (

Penstemon scariosus

var.

garettii

). Therefore, we consider these to be unverified locations and excluded these records from further analysis (Figure 2).

BILLING CODE 4310-55-C

EP06AU14.003

We do not have complete surveys for White River beardtongue and thus do not know the total population size for this species. Our best population estimate is 12,215 individuals (including 792 new plants that were found during surveys in 2013) (Service 2014b).

In our 2013 proposed rule, we delineated seven populations in the main portion of White River beardtongue's range using data collected through 2012. Based on new 2013 survey information, we have now reanalyzed the data using the methodology explained above under Graham's beardtongue—Species Information. We now know of 8 populations; 5 populations in Utah and 3 populations in Colorado (Figure 2). Approximately 61 percent of the known population of White River beardtongue occurs on BLM land, with the remainder

occurring on State and private lands (Table 2).

Table 2—Number of Known Individuals of White River Beardtongue by Landowner

[* Data as Presented in the 2013 Proposed Rule Includes Surveys Through 2012; ** Data as Presented in This 2014 Final Rule Includes Surveys Through 2013.]

Number of

individuals

(2013 proposed rule) *

Percent of total in

(2013 proposed rule) *

Number of

individuals

(2014) **

Percent of total in

(2014) **

Federal

7,054

62

7,481

61.2

Private

3,093

27

3,458

28.3

State

1,276

11

1,276

10.5

Tribal

0

0

0

0

Total

11,423

100

12,215

100

All of our long-term monitoring information for the species comes from two sites that were monitored from 2004 to 2012 (populations 1 and 6, see Figure 2), and one site that was monitored from 2010 to 2012 (population 3, see Figure 2). At one site, plants declined over this time and the other two sites increased slightly (McCaffery 2013a, p. 8). Although two of three sites were found to be stable, we do not know if this finding represents the trend for all populations of the species across its range, but it represents the best available information on population trends for the species.

White River beardtongue flowers each year regardless of new seedling recruitment, in contrast to Graham's beardtongue (McCaffery 2013a, p. 9). Like Graham's beardtongue, White River beardtongue is vulnerable to stochastic events as well as increases in stressors or declining habitat conditions (McCaffery 2013a, p. 19). Also like Graham's beardtongue, no link was found between reproduction and precipitation on a regional level (McCaffery 2013a, p. 16), but this issue should be studied on a more local scale. In 2009, a significant recruitment event occurred in two of the study populations (Dodge and Yates 2010, pp. 11-12). Many of these seedlings died between 2009 and 2010, but the net result was an increase in population size by the end of the study (Dodge and Yates 2011, pp. 6, 10). Continued monitoring is necessary to determine the frequency of recruitment and how this influences the long-term population trends of this species. In addition, like Graham's beardtongue, we need further studies to determine what factors are driving population dynamics of White River beardtongue.

Habitat

White River beardtongue is restricted to calcareous (containing calcium carbonate) soils derived from oil shale barrens of the Green River Formation in the Uinta Basin of northeastern Utah and adjacent Colorado. The species overlaps with Graham's beardtongue at sites in the eastern portion of Graham's beardtongue's range.

White River beardtongue is associated with the Mahogany ledge and Parachute Creek formation. The habitat of White River beardtongue is a series of knolls and slopes of raw oil shale derived from the Green River geologic formation (Franklin 1995, p. 5). These soils are often white or infrequently red, fine-textured, shallow, and usually mixed with fragmented shale. These very dry substrates occur in lower elevations of the Uinta Basin, between 1,500 and 2,040 m (5,000 and 6,700 ft), and the species occurs at an average elevation of 1,847 m (6,060 ft). About one-fifth of all known point locations of White River beardtongue are on slopes of 10 degrees or less, with an average slope for all known points of 19.2 degrees (Service 2013, pp. 3-4). White River beardtongue individuals usually grow on southwest-facing exposures (Service 2013, p. 1).

Species growing with White River beardtongue include saline wildrye, mountain thistle, spiny greasebush, Utah juniper, two-needle piñon, and shadscale saltbush (UNHP 2013, entire), and many oil shale endemic plant species (Neese and Smith 1982, p. 58; Goodrich and Neese 1986, p. 283). Other beardtongue species growing in the vicinity of White River beardtongue include thickleaf beardtongue and Fremont's beardtongue (Fitts and Fitts 2008, pp. 13-28; Fitts and Fitts 2009, pp. 11-26; Fitts 2010, pp. 15-21; Fitts 2014, pers.comm.) and these are likely important for supporting pollinators.

Biology

White River beardtongue is long-lived due to the presence of a substantial and multi-branched woody stem (Lewinsohn 2005, p. 3), and individual plants can live for 30 years (Service 2012c, p. 3). Most plants begin to flower when the woody stem reaches 3 to 4 cm (1 to 1.5 in.) in height (Lewinsohn and Tepedino 2005, p. 4), usually in May and June.

The species is pollinated by a wasp,

Pseudomasaris vespoides,

and several native, solitary bee species in the genera

Osmia, Ceratina, Anthophora, Lasioglossum, Dialictus,

and

Halictus

(Sibul and Yates 2006, p. 14; Lewinsohn and Tepedino 2007, p. 235). These pollinators are medium in size compared to the larger pollinators generally associated with Graham's beardtongue (see Background—Graham's beardtongue, Biology, above). White River beardtongue has a mixed mating system, meaning it can self-fertilize but produces more seed when it is cross-pollinated (Lewinsohn and Tepedino 2007, p. 234). Thus, pollinators are important for maximum seed and fruit production.

Based on their medium size, the pollinators of White River beardtongue are capable of travelling and moving pollen across at least 500-m (1,640-ft) distances (Service 2012b, pp. 8, 13). Although White River beardtongue has low flower visitation rates by pollinators, there is no evidence that pollinators are limiting for this species (Lewinsohn and Tepedino 2007, p. 235). It is important to maintain the diversity of pollinators by maintaining vegetation diversity for White River beardtongue because it stabilizes the effects of fluctuations in pollinator populations (Lewinsohn and Tepedino 2007, p. 236).

We have very little information regarding the genetic diversity of White River beardtongue. This species, like Graham's beardtongue, is likely not as genetically diverse as other common, sympatric beardtongues (Arft 2002, p. 5).

Summary of Comments and Recommendations

In the proposed rules published on August 6, 2013 (78 FR 47590), we requested that all interested parties submit written comments on the proposals by October 7, 2013. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposals. Newspaper notices inviting general public comment and announcing our informational meeting and public hearing were published in the Salt Lake Tribune, Deseret News, and Uintah Basin Standard. We received requests for a public hearing, which was held in Vernal, Utah, on May 28, 2014. We reopened the comment period on May 6, 2014, for 60 days (79 FR 25806), to accept comments on the proposed rules and several related documents (see Previous Federal Actions).

During the 2 comment periods for the proposed rules, we received 4,889 comment letters supporting or opposing the proposed listing of Graham's and White river beardtongues with designated critical habitat. During the May 28, 2014, public hearing, one organization commented on the proposed rules. All substantive information provided during the comment periods is either incorporated directly into this document or addressed below.

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from seven appropriate and independent specialists with scientific expertise that included familiarity with Graham's and White River beardtongues and their habitat, biological needs, and threats. We received responses from four of the peer reviewers. We reviewed all comments received from the peer reviewers for substantive issues and new information regarding the listing of Graham's and White River beardtongues. One peer reviewer said that our description and analysis of the biology, habitat, geology, soils, plant community associates, climatic conditions, population trends, and historic and current distribution of the species are accurate. Two peer reviewers found that the proposed rule provided an accurate and adequate review and analysis of the factors affecting the species. Two peer reviewers also stated that we reached logical conclusions and included pertinent literature. Other peer reviewer comments are addressed in the following summary and incorporated into this withdrawal document as appropriate.

We also received and considered many comments relating to critical habitat and the associated environmental assessment and economic analysis of critical habitat, but responses to these comments are not included here because we are withdrawing the proposed listing and critical habitat rules for the Graham's beardtongue and White River beardtongue. Where comments on our proposed critical habitat are also relevant to the species' biology or distribution, or relevant to our withdrawal decision, we have addressed these issues in this document as appropriate.

Peer Review Comments

Comment (1):

One peer reviewer urged us to protect Graham's and White River beardtongues by designating an Area of Critical Environmental Concern (ACEC).

Our Response:

An Area of Critical Environmental Concern may only be designated by the BLM. An ACEC that overlaps a portion of Graham's and White River beardtongues has been designated in Colorado by the BLM. No ACEC was designated by BLM in Utah.

Comment (2):

Several peer reviewers provided corrections, clarifications, or suggested additions to the biological background information for Graham's beardtongue. One peer reviewer clarified that a cool, wet spring may have reduced herbivory on Graham's beardtongue, but effects on reproduction are not definitive. One peer reviewer pointed out that the flowering period is late April to late June with seeds ripening between mid-June and mid-August. One peer reviewer suggested that we add that, “maintaining both a sufficient number of reproducing plants per population, a sufficient number of those populations and connectivity between those populations is needed to ensure cross-pollination and genetic diversity of the species.” Two peer reviewers suggested that we change our description of the average lifespan of the species—the average lifespan is unknown, but plants have been documented surviving for at least 10 years in monitoring plots over a 10-year period.

Our Response:

We included this information under Background—Graham's beardtongue,

Species Information.

Comment (3):

One peer reviewer stated that sheep grazing can have significant impacts to Graham's beardtongue. Sheep were observed browsing all inflorescenses of Graham's beardtongue from one monitoring plot eliminating all reproduction at the site for the year.

Our Response:

We included this observation under Summary of Factors Affecting the Species, Grazing and Trampling. In our proposal and this document we acknowledge that herbivory and trampling can be severe at some locations, but despite such intense impacts from sheep, this monitoring site still had a stochastic population growth rate slightly above one (MacCaffrey 2013a, p. 15); therefore, we do not consider grazing to be a threat to the species.

Comment (4):

One peer reviewer provided updated information about the results of transplantation of Graham's beardtongue in 2012. None of the plants survived transplantation.

Our Response:

We included this additional information under Summary of Factors Affecting the Species, Road Maintenance and Construction.

Comment (5):

One peer reviewer asked us to update our citation of Dodge 2013 to Reisor 2013, because the author's name has changed.

Our Response:

We did not cite this document correctly in the 2013 proposal, so we have updated this citation.

Comment (6):

One peer reviewer found that our description of the slopes where the species are found was accurate but may represent a survey bias because some slopes are too steep to safely survey, so the proportion of plants on steeper slopes may be higher than we represent.

Our Response:

We agree with the comment, but our analysis of the relationship between slopes and species' presence is based on best available information, which shows that the average slope where the species occurs is 17.6 degrees. Since there are little data showing that the species occurs on steeper slopes, we used the best information available.

Comment (7):

One peer reviewer questioned the importance of “cushion-like” herbs we described in our proposed critical habitat rule (78 FR 47832) to the natural community where Graham's and White River beardtongue grows and wondered what other cushion-like plants besides

Arenaria hookeri

occur in the same natural community.

Our Response:

Cushion-like plants in Graham's beardtongue habitat include

Chamaechaenactis scaposa

(fullstem),

Parthenium ligulatum

(Colorado feverfew),

Townsendia mensana

(table townsend daisy), the

Hymenoxys

species (rubberweeds) and some of the

Cryptantha

species (Cryptantha) (Neese and Smith 1982).

Comment (8):

One peer reviewer said that Graham's beardtongue overlaps the Douglas Creek and Parachute Creek members of the Green River Formation but agreed that the description of the soils and geology of White River beardtongue in our proposed rule to designate critical habitat (78 FR 47832) was accurate.

Our Response:

We found that 2,654 Graham's beardtongue plants overlap with the Douglas Creek member of the Green River formation, which represents a small percentage of the total population. We have updated the Background—Graham's beardtongue,

Species Information,

Habitat section to reflect this overlap.

Comment (9):

One peer reviewer noted that photographs show Graham's beardtongue growing on open slopes, canyon rims, and occasionally in pinon-juniper openings.

Our Response:

We include these habitat types in this document (see Background—Graham's beardtongue,

Species Information,

Habitat).

Comment (10):

One peer reviewer noted the importance of pollinators. They cited an example of a plant species that lost its pollinator and stopped producing seed.

Our Response:

We agree with the importance of pollinators and retain this discussion in our withdrawal.

Comment (11):

One peer reviewer found that our description of the importance of intact soils to Graham's and White River beardtongues is correct although he described finding Graham's and White River beardtongues in disturbed soils adjacent to a pipeline and road.

Our Response:

We are aware of isolated instances where the species may persist adjacent to soil disturbance. However, these locations do not provide the full complement of associated plants or pollinator species and thus would not provide suitable habitat for the species' long-term viability.

Comment (12):

One commenter provided information that thickleaf beardtongue and Fremont's beardtongue occur in the vicinity of Graham's and White River beardtongue and might be important for supporting pollinators.

Our Response:

We agree with the comment and included this information in our description of the habitat (see Background—Graham's beardtongue and White River beardtongue,

Species Information,

Habitat).

Comment (13):

One peer reviewer asked us to add the citation of Dodge and Yates 2009 to support our discussion that the highest number of fruits is produced when flowers are cross-pollinated.

Our Response:

We reviewed the Dodge and Yates 2009 paper and have included the citation under Summary of Factors Affecting the Species, Road Construction and Maintenance and Small Population Size.

Comment (14):

One peer reviewer informed us that additional occurrences of Graham's beardtongue were found in 2013.

Our Response:

We have incorporated the additional data from the 2013 survey season into our analysis.

Comment (15):

One peer reviewer suggested that we review herbarium specimens to verify the range of White River beardtongue.

Our Response:

The peer reviewer did not provide any additional information or documentation that verifies the correct identification of herbarium specimens or the accuracy of locations where the herbarium specimens were found. Until both of these are verified by a qualified botanist, we will continue to consider these herbarium specimens as unverified. We identified the range of White River beardtongue by using the best available information, which consists of locations that were verified both to the correct subspecies and location. This documented information came from many sources including the UNHP (2012 and 2013b), CNHP (2014), BLM (2013b) and private parties (see Background—White River Beardtongue,

Species Information,

Distribution and Trends). We will consider additional information as it becomes available.

Comment (16):

One peer reviewer stated that he has observed deer grazing on Graham's beardtongue.

Our Response:

Deer are listed as one of the grazers of Graham's beardtongue under Summary of Factors Affecting the Species, Grazing and Trampling. However, we do not have information suggesting that deer herbivory is a threat to the species. As discussed in the section listed above, we do not consider grazing by deer a threat to the species because demographic data show the monitoring sites for Graham's beardtongue are stable despite the current level of observed herbivory (MacCaffrey 2013a, p. 15).

Comment (17):

While building a species' distribution model for Graham's beardtongue, one peer reviewer found that late-season moisture was important in determining the distribution of the species.

Our Response:

We requested more information on this topic, but the peer reviewer did not provide data that supports this assumption, and we do not have additional information. We do not fully understand the relationship between the precipitation regime and the response of Graham's beardtongue. We welcome any further information on this relationship.

Comment (18):

One peer reviewer noted that surveys for the Graham's and White River beardtongues were also conducted by the Utah Natural Heritage Program and funded by the Utah Endangered Species Mitigation Fund and Uintah County.

Our Response:

We recognize and are appreciative of the contributions to surveying for both beardtongue species by the State of Utah and Uintah County. We explain the role of the State and County under Background—Graham's beardtongue,

Previous Federal Action.

These surveys have contributed to our improved understanding of the distribution of both species.

Comment (19):

One peer reviewer believed that our plant data were inadequate to determine population abundances and trends because we analyzed the population data as a whole instead of analyzing the data separately for each individual population. Further, the peer reviewer stated that metapopulation dynamics are important for understanding population trends and that we should evaluate these relationships.

Our Response:

This document discusses the available monitoring information, our assumptions, and the lack of abundance data (see Background—Graham's beardtongue,

Species Information,

Distribution and Background—White River beardtongue,

Species Information,

Distribution). We did not lump species data to determine trends but instead used the best available information on population trends, which comes from two sites for each species. We recognize that individual population trends for other populations may differ from the monitored populations, and to that end two new monitoring sites were added for Graham's beardtongue in 2010, and one additional monitoring site was added in 2010 for White River beardtongue. In addition, rangewide monitoring will be initiated under the 2014 Conservation Agreement. The two sites that were monitored for 9 years show that those individual populations of Graham's beardtongue were stable and that the two monitored populations of White River beardtongue were stable and close to stable. Further work is needed to determine if the trends at these sites are representative of the entire population.

We acknowledge that there are gaps in our understanding of the species' abundance based on the available

abundance data. We reported only known abundances in the proposed rule and in this document, and acknowledge that the actual abundance of both species may be higher.

Comment (20):

One peer reviewer identified an additional population of White River beardtongue that was located in Colorado in 2013.

Our Response:

We have included the additional population of White River beardtongue found in Colorado into our dataset (

see

Figure 2).

Comment (21):

One peer reviewer asserted that we did not support our conclusions regarding the historical distribution and abundance of the Graham's and White River beardtongues, as grazing may have extirpated additional populations of both species. Widespread, heavy, and unregulated historical grazing may have reduced the distribution and abundance of the species. More recently, livestock grazing was reported as a threat to Graham's beardtongue by several biologists (Neese 1982; Frates 2014).

Our Response:

The historical distribution and abundance of Graham's beardtongue is unknown, and the reviewer did not provide information on the potential extent of the historical range. Historical heavy grazing and trampling may have extirpated some individuals or populations of both species; however, this most likely did not reduce the range of either species because current monitored populations are still stable or close to stable despite observations of livestock grazing and trampling at monitoring sites.

Comment (22):

One peer reviewer found that we did not sufficiently analyze the naturalness of the hydrologic regime as a factor affecting the species.

Our Response:

We agree that the hydrologic regime may be important for these beardtongues, especially since subsurface mining may produce fissures that alter surface hydrologic regimes (Hotchkiss

et al.

1980. p. 46). We do not have nor did the peer reviewer provide specific information on the hydrologic regime for these species. However, because both plant species occur across a wide range and in sufficient numbers, we find that the current hydrologic regime is sufficient to sustain the species for the future with the establishment of conservation areas.

Comment (23):

One peer reviewer suggested that we consider livestock trampling as a significant threat because it can affect the species at multiple scales including direct impacts to the species, degradation of habitat, and even large landscape effects to the community including pollinators, soils, and hydrology.

Our Response:

We do not fully understand how Graham's and White River beardtongues respond to livestock grazing pressure, including trampling. However, monitored populations that overlap active grazing allotments show a stable trend over a 9-year monitoring period. Therefore, we did not find livestock trampling to be a threat, as discussed under Summary of Factors Affecting the Species, Grazing and Trampling.

Comment (24):

One peer reviewer found that we did not sufficiently consider small population size as a factor affecting the species, citing that small populations are more likely to go extinct than large populations, and that isolated small populations become even more vulnerable to extinction.

Our Response:

Although we found that small population size contributed to other factors that were a cumulative threat to the species without protections, we no longer consider small population size a threat to the species because we have reduced threats that may isolate populations through the conservation measures in the 2014 CA. Sufficient numbers of large and small populations of both beardtongue species will be conserved to provide resiliency and redundancy to each species throughout their ranges. The 2014 CA provides for the establishment of conservation areas that protect these populations and provide connectivity. The protection of populations within conservation areas will provide for the continued persistence of both species.

Comment (25):

One peer reviewer noted that during surveys in 2013 an extensive and moderately dense cover of purple mustard (

Chorispora tenella

), an invasive weed, was found occurring with Graham's beardtongue in the Raven Ridge ACEC. This reviewer concluded that weed invasion is a threat to Graham's beardtongue.

Our Response:

We have updated the Summary of Factors Affecting the Species, Invasive Weeds section of this document with this new information. However, we do not agree that this instance of an invasive weed invasion constitutes a threat to the species because there are sufficient numbers of populations of Graham's beardtongue that are unaffected by invasive weeds. In addition, further evidence that purple mustard is negatively impacting the population of Graham's beardtongue would be needed for it to be considered a threat to the species.

Comment (26):

One peer reviewer agreed with our conclusion that both Graham's and White River beardtongues meet the definition of a threatened species and that they should be protected under the Act.

Our Response:

At the time of publication of the 2013 proposed listing rule, we concluded that threats to Graham's and White River beardtongues included negative effects from energy exploration and development and cumulative impacts from increased energy development, livestock grazing, invasive weeds, small population sizes, and climate change. These threats have since been addressed in the 2014 CA, in part by creating conservation areas that will protect the species from ground-disturbing activities.

Tribal Comments

(27) Comment:

The Ute Indian Tribe (Tribe) asked us to comply with our treaty and trust responsibilities to the Tribe, the Executive Order on Government-to-Government Consultation, the Department of the Interior's Policy on Consultation with Indian Tribal Governments, and the Secretarial Order on American Indian Tribal Rights, Federal—Tribal Trust Responsibilities, and the Act. The Tribe stated that listing actions will directly affect the Tribe and that proposed critical habitat borders trust lands and are within the Tribe's Uintah and Ouray Reservation. Since the Tribe is a major energy producer, they are concerned that the proposed actions will affect the economy and interests of the Tribe by significantly impacting oil and gas development on their Reservation.

Our Response:

In the proposed rule, we determined that no tribal lands were known to be occupied by the beardtongues. Therefore, we did not propose to designate critical habitat for either species on tribal lands. It is possible that one or both species occurs on tribal lands in potential habitat that has not been surveyed. At the time of publication of our May 6, 2014, document reopening the comment period (79 FR 25806), we contacted the Tribal chair and Tribal attorney by phone and email regarding the proposed rules and the document, and updated them on the reopening of the public comment period and the availability of the draft 2014 CA, economic analysis, and environmental assessment for review and comment. Also, at that time we offered to discuss the proposed rules with the Tribe.

State and County Comments

(28) Comment:

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

Graham's and White River beardtongues should be withdrawn because there is no basis for concluding that either species is threatened as defined in the Act. The State finds the proposal to list is unsupported by sufficient scientific information, data, and analysis and is based on inaccurate interpretations concerning regulatory actions such as energy development and mining proposals. Additionally, the State has expertise in the conservation of species and in the responsible development of oil shale and oil and gas resources. Such expertise must be considered in the evaluation of data, the regulatory mechanisms available, and in the ability to generate and enforce a conservation agreement for both beardtongues.

Our Response:

We used the best scientific and commercial information available for the purpose of making a final listing determination for Graham's and White River beardtongues, including the newly created 2014 CA, and we concluded that the species no longer meet the definitions of threatened or endangered species under the Act. We agree that Graham's and White River beardtongue conservation can be accomplished through the 2014 CA (see Ongoing and Future Conservation Efforts).

(29) Comment:

The PLPCO and several commenters stated impacts to the species from oil shale and traditional oil and gas development in the future will be limited. The PLPCO cites a University of Utah study (2013) to support the growth projections of the industry, and concluded that development would remain minimal due to low natural gas prices; however, the study did not specify a timeframe for this projection. Even if development were to occur, the commenters believe we overstated its impact. Any projected drilling in beardtongue habitat will be for natural gas rather than oil. The PLPCO and another commenter stated promising new production techniques for oil shale and tar sands will likely further reduce forecasted environmental impacts. Other commenters cited economic and technical uncertainties that call into question large-scale, rapid oil shale development on public and private lands.

Our Response:

We used the best scientific and commercially available information for our analysis. Our analysis of energy development included the locations of traditional hydrocarbon resource deposits and oil shale and tar sands resources, plant abundance and habitat overlapping these areas, and the regulatory mechanisms in place to protect the beardtongues in these areas. While a high level of development within these species' habitats is not yet realized, we expect it to increase in the future, although we acknowledge some uncertainties regarding when oil shale and tar sands development will occur. A number of factors may limit the growth rate of the oil shale and traditional oil and gas industry, but these factors do not remove the likelihood of energy development in the future. We included the University of Utah (Institute for Clean and Secure Energy 2013, entire) study projections of likely industrial growth in our discussion of oil shale and tar sands in this document (see Summary of Factors Affecting the Species, Energy Exploration and Development). However, the 2014 CA provides significant conservation actions for the beardtongues on State, private, and Federal lands across their range (see Ongoing and Future Conservation Efforts). We determined that the conservation agreement measures will be effective at reducing threats to the beardtongues.

(30) Comment:

The PLPCO, Duchesne County, and other commenters stated that we made erroneous factual assumptions about likely energy development on BLM lands and its impact on the beardtongues. The commenters stated that the BLM determined no commercially viable technologies for oil shale extraction in Utah exist, and that BLM lands will not be available to leasing except in 160-acre increments under research, development, and demonstration (RD&D) leases. Only upon compliance with lease provisions would additional lands become available for commercial lease. Currently, there is only one active RD&D lease in Utah. Another commenter stated there are no actual proposals to develop oil shale from the vast majority of these parcels. Another commenter stated the Consolidated Appropriations Act of 2008 placed a Congressional moratorium on all Federal oil shale leasing.

Our Response:

The BLM lands identified in the proposed rule and this withdrawal are based upon acreages potentially available for leasing as identified in the BLM Programmatic Oil Shale and Tar Sands Environmental Impact Statement (OSTEIS). While a high level of development within these species' habitats is not yet realized, we expect it to increase in the future because the Energy Policy Act of 2005 identifies the entire range of the beardtongues as a priority for oil shale and tar sands development, requires the establishment of a commercial leasing program, and increases the lease acreage restriction to 50,000 acres per individual or corporation. While the growth of the industry may be slow, this does not remove the likelihood of the threat from energy development in beardtongue habitat where energy resources exist. The Consolidated Appropriations Act of 2008 did not place a moratorium on oil shale leasing; however, it did specify that oil shale regulation development and leasing was not funded that year. However, the 2014 CA reduces the threat to Graham's and White River beardtongues on BLM lands by establishing conservation areas where surface disturbance will be limited, and where plants will be buffered from surface disturbances by distances of 91.4 m (300 ft). Outside conservation areas on BLM lands, any surface disturbance will avoid plants by 91.4 m (300 ft). These measures sufficiently address the threats to both species from oil shale development.

(31) Comment:

The PLPCO and other commenters believe we overstated impacts from potential oil shale development on State and private lands. The commenters stated that these projects are designed to minimize surface impacts and impairment of plant species and thus would limit disturbance to only a few thousand acres maximum at any one time. Additionally, the projects will transition from surface mining to underground mining depending upon the depth of the resource. Another commenter stated that the economic reality is that surface mining would not occur in areas with an average overburden greater than 30.5 m (100 ft), and the most commercially attractive areas for oil shale mining would be candidates for underground mining. Commenters further stated that the land occupied by surface mining at any one time would be a small fraction of the habitat area, and mining areas would be rapidly reclaimed.

Our Response:

In our 2013 proposal, we assumed surface mining would occur where the overburden is less than 152 m (500 ft) deep. This is consistent with the Record of Decision for the OSTEIS, which stated surface mining of oil shale in Utah is allowed where the overburden is 0 to 500 ft thick. While a high level of development within these species' habitats is not yet realized, we expect it to increase in the future because the Record of Decision for the OSTEIS identifies a large percentage of the range of the beardtongues for oil shale and tar sands development. In addition, we do not have documentation that reclaimed mined areas can support either beardtongue species. However, the 2014 CA provides significant conservation

actions for both beardtongues on State, private, and Federal lands across their ranges (see Ongoing and Future Conservation Efforts). We determined that the 2014 CA measures will reduce threats to the beardtongues.

(32) Comment:

The PLPCO and one other commenter stated we incorrectly indicated that no regulatory mechanisms exist with regard to Red Leaf's project on SITLA lands. The State permit for Red Leaf's project specifically includes protection for Graham's beardtongue.

Our Response:

We appreciate the information regarding the permit for the Red Leaf project. Although the permit may provide some conservation benefits, we also note that Red Leaf's mining permit allows that most of the land surface will be disturbed by mining. Therefore, the long-term effectiveness of the measures described in the permit is uncertain. Although the 2014 CA does not provide protections for Graham's beardtongue on the property leased by Red Leaf, a sufficient number of plants are protected by the 2014 CA on BLM lands within that same population.

(33) Comment:

The PLPCO and one other commenter concluded that we grossly overstated the footprint of the Enefit project and the number of plants contained therein by failing to use accurate mine plan data that are publicly available. Commenters stated that surveys in 2013 of the Enefit South Project found 117 and 413 individuals of Graham's and White River beardtongue, respectively. These numbers represent 0.3 percent and 3 percent of known Graham's and White River beardtongue plants, respectively, rangewide rather than the 19 percent and 26 percent identified in the proposed rule. Enefit stated that their South Project will develop 2,833 ha to 3,642 ha (7,000 to 9,000 ac) rather than the 10,117 ha (25,000 ac) identified in the proposed rule.

Our Response:

We used the best scientific and commercially available information for our analysis. Our analysis of the Enefit project was based upon total acreage that was either owned, leased, or optioned for lease by the company; the amount of plant abundance and habitat overlapping these areas; and the regulatory mechanisms to protect the beardtongues on these areas. We updated the information in this document to differentiate impacts from Enefit's South Project from the entire area owned, leased or optioned for lease by Enefit (see Summary of Factors Affecting the Species, Energy Exploration and Development).

(34) Comment:

Several commenters stated there are sufficient regulatory mechanisms on BLM lands to protect the beardtongues, including protections through the OSTEIS and those applied as a BLM special status species. The PLPCO and SITLA stated that we provide no support for why we believe spatial buffers are not sufficient to minimize impacts to the beardtongues. Another commenter stated the BLM Vernal Field Office Resource Management Plan (RMP) creates a setback zone from the Mahogany Ledge outcrop so this area believed to be of greatest concern is not available for leasing. The commenter stated that Graham's beardtongue survival can be adequately ensured through avoidance and revegetation. Another commenter and Duchesne County stated the Raven Ridge ACEC protects 87 percent of all known Graham's beardtongue plants in Colorado and is sufficient to protect the species. In the ACEC, motorized travel is restricted to existing roads and there is no surface occupancy restriction for new oil and gas leases. Additionally, commenters stated that we discounted existing efforts to protect the species by energy companies. Another commenter stated the majority of oil shale resources and the majority of known plants are on Federal land and thus the Federal leasing restrictions and imposed plant protections will be inherently limiting and protective.

Our Response:

The protections in the OSTEIS apply only to plant species listed under the Act. The Vernal RMP does not create a setback zone from the Mahogany Ledge outcrop. However, landscape-level protections are included in the 2014 CA through the identification of conservation areas for the species rangewide (see Ongoing and Future Conservation Efforts) and by the Raven Ridge ACEC protections in Colorado.

(35) Comment:

The PLPCO stated that, since the oil shale industry will develop gradually, we should consider a research program to determine the beardtongues' ability to be propagated and moved into reclaimed areas. Another commenter stated the beardtongues are robust and would likely succeed in reseeding or transplanting efforts on reclaimed soils.

Our Response:

We agree that additional research on this topic would be beneficial because restoration of plants of arid ecosystems remains largely unsuccessful and unproven. Additional studies are being planned through the 2014 CA to better assess the ability of the beardtongue species to establish and persist on disturbed or reclaimed soils (see Ongoing and Future Conservation Efforts).

(36) Comment:

The PLPCO and SITLA stated that we failed to show that pristine, natural environments are necessary for the species' conservation, and it is speculative to conclude disturbance is detrimental to these species.

Our Response:

Although individual plants may occupy some disturbed habitats, it is unlikely that these disturbed areas can support the species on an ecosystem level and support viable populations for the long-term. With very few exceptions, all sites where both beardtongue species occur are located in undisturbed soils. Additional studies are planned through the 2014 CA to better assess the ability of the beardtongue species to establish and persist on disturbed or reclaimed soils (see Ongoing and Future Conservation Efforts).

(37) Comment:

The PLPCO, SITLA, and another commenter stated that our evidence for indirect effects and habitat fragmentation effects on the beardtongues is speculative. One commenter stated that there is no clear evidence the environment is as fragmented as is implied. They stated that Graham's beardtongue colonies are already widely dispersed, which implies the species tolerates a high degree of fragmentation.

Our Response:

We used information on the effects of habitat fragmentation on other similar plant species to infer what the effects would be to the beardtongues, because this represented the best available information. Some effects of habitat fragmentation include smaller and more isolated populations that have an increased risk of extinction, the potential for inbreeding depression, loss of genetic diversity, and lower sexual reproduction (see Summary of Factors Affecting the Species, Small Population Size). Although habitat fragmentation may not be currently high, we expect that, without the 2014 CA conservation actions, habitat fragmentation would increase in the future as large-scale surface mining and oil and gas development accelerates.

(38) Comment:

The PLPCO, SITLA, and another commenter stated that we assume both species are tightly associated with the Mahogany Ledge within the Parachute Creek Member of the Green River formation, but plants occur far above and below this ledge and on various soil types.

Our Response:

We acknowledge that not all individuals are found within the Mahogany Ledge feature. However, the majority of individuals, or approximately 63 percent and 69

percent of the total population of Graham's and White River beardtongues, respectively, are associated with the Mahogany Ledge feature.

(39) Comment:

The PLPCO, SITLA, Duchesne County, and other commenters stated that we characterized the magnitude of the potential threats in terms of number of known populations or individuals while acknowledging the surveys for both species are incomplete. They further asserted that our understanding of the amount of potential habitat may be a substantial underestimation of the actual amount. Commenters stated that the predictive models for both species are pending and the model results will be based upon occurrences and data not considered in the proposed rule. One commenter stated that only a small portion of Graham's beardtongue habitat, perhaps less than 1 percent, across its range has been surveyed and thus it is fair to assume the species can be in areas that have not been surveyed. The commenter asserted that these errors and omissions emphasize our limited understanding of the species' distributions.

Our Response:

We are required to use the best available information when evaluating a species' status and making a listing determination. We considered the predictive models during this analysis and agree there is additional potential habitat for both species. However, we based our determination on known information about the species, which includes survey data showing the extent and abundance of the species. Unsurveyed suitable habitat may increase both the known distribution and total population numbers for both species in the future.

(40) Comment:

The PLPCO and SITLA questioned our methods to determine Element Occurrences (EOs) to delineate populations for the beardtongues when the pollinator travel distances differ from the EO delineation distance. The PLPCO stated the EO construct muddles a realistic discussion of the discontinuous distribution of the two species, does not allow the effects of activities to be weighed against actual plant locations, and thereby overstates the alleged fragmentation of habitat, establishes a completely false sense of accuracy, and does not use the best available data. Furthermore, commenters stated we do not provide information regarding the ecological significance of EOs, and PLPCO questioned why we did not use EOs in the threat analysis but rather individual plant numbers. The PLPCO urged us to map the populations realistically for an accurate threat analysis.

Our Response:

We used EOs to characterize the number of populations for the beardtongues because it is a standard protocol for delineating populations used by the State of Utah Heritage Program as well as other States' native plant programs (see Background—Graham's beardtongue, Distribution), and we find this an acceptable, biologically-based method to define populations. Much of the location data we received as point locations do not reflect the actual plant distribution across the landscape because in many cases one point represents many plants distributed over varying areas. Thus, we rely on EOs because of the discrepancy in the data and its standard use to delineate populations.

(41) Comment:

The PLPCO and another commenter disagreed with our conclusion that the proposed Enefit oil shale project will reduce connectivity between Utah and Colorado Graham's beardtongue populations. They argue the current distance between populations 19 and 20 is 6.8 km (4.2 m), which is nearly 10 times the pollinator distance needed to maintain gene flow and connectivity between populations. The current pollinator distances of 700 m for Graham's beardtongue and 500 m for White River beardtongues are less than 6.8 km (4.2 m), so therefore any disturbance between these populations will not fragment populations that are not connected by pollinators.

Our Response:

We can infer that gene flow must be occurring between these populations, because otherwise they would be different species, or diverging from the species. Graham's beardtongue pollinators are capable of travelling at least 700 meters (see Background—Graham's beardtongue, Biology) during foraging. However, pollinator dispersal distances can occur over a greater distance than foraging distance; dispersal distances for pollinator's of Graham's beardtongue pollinators are not known but long-distance dispersal is important for pollinators to ensure access to adequate resources (Tepedino 2014, entire). In addition, unsurveyed areas between populations 19 and 20 may contain occurrences of Graham's and White River beardtongue plants that are important for providing connectivity. We used genetic studies from other plant species, comprising the best information available, to infer the effects of habitat fragmentation on gene flow between beardtongue populations (see Small Population Size, below).

(42) Comment:

The PLPCO disagreed with our conclusion that indirect factors of pollinator limitation, dust, invasive weeds, grazing, small population size, and climate change pose a threat cumulatively. They contend that we have not demonstrated any impacts from any of these factors because neither species appears to suffer from pollinator limitations, dust, or invasive weeds.

Our Response:

We stated in the 2013 proposed rule that the two beardtongues have stable populations and that substantial threats are currently not occurring. As such, we determined that livestock grazing, invasive weeds, small population sizes and climate change were not a threat in themselves, but when combined with energy development were a cumulative threat to the species. However, we concluded that barring additional conservation measures, threats would be likely to occur in the future, at a high intensity, and across both species' entire ranges. Our conclusions were based on future impacts to the species that would occur in concert with energy development. Furthermore, we discussed pollinator limitation as a negative effect of habitat fragmentation due to the threat of energy development.

(43) Comment:

The PLPCO, SITLA, Duchesne County, and other commenters stated the proposed pollinator buffers are too large and not supported by science. They stated that we did not demonstrate that smaller pollination buffers would be insufficient.

Our Response:

We used the best scientific and commercial information available to identify the pollinators of both beardtongues, identify the habitat requirements necessary to support these pollinators, and quantify their foraging distances to inform the pollinator buffer distance for both beardtongues (see Background—Graham's beardtongue, Biology, and Background—White River beardtongue, Biology).

(44) Comment:

The PLPCO and SITLA stated the literature to support our assumption that pollinators will not cross roads or other disturbed areas is speculative. They stated that the pollinator studies cited have no relevance to species, ecological communities, or conditions in the Uinta Basin.

Our Response:

We used the best scientific and commercial information available to identify the behavior of beardtongue pollinators in disturbed areas (see Summary of Factors Affecting the Species I. Energy Exploration and Development). The best available information includes studies from outside of the Uinta Basin that were

used to infer the effects to beardtongue pollinators.

(45) Comment:

The PLPCO, SITLA and other commenters stated that we did not indicate whether the higher level of reproduction resulting from cross-pollination is necessary to maintain viable populations. They noted that our proposed rule concluded that low pollinator visitation for White River beardtongue was not considered a limiting factor.

Our Response:

Cross-pollinated flowers produce more seeds and fruits than self-pollinated flowers in these species (Dodge and Yates 2009, p. 18; Lewinsohn and Tepedino 2007, p. 234). Since both beardtongues benefit from cross-pollination, it is important to maintain pollinator populations so that beardtongue seed production and genetic diversity are maximized. However, the establishment of conservation areas for both species will provide pollinator habitat and corridors between populations.

(46) Comment:

The PLPCO and SITLA stated we did not indicate what “sufficiently large numbers or population distribution” means in the context of preventing inbreeding depression in Graham's beardtongue.

Our Response:

We assessed the effects from inbreeding depression based upon studies from other plant species because they comprised the best information available at the time. However, we did not attempt to apply the population size or distribution recommendations from these other studies to the beardtongues because those values are species specific. Therefore, we provided a general discussion regarding inbreeding depression. However, we do not believe that inbreeding depression is a threat because there are sufficient large populations of Graham's beardtongue protected within conservation areas that allow for a large reservoir of genetic diversity.

(47) Comment:

The PLPCO and SITLA and another commenter stated that we did not demonstrate that weeds are a threat or increase the risk of catastrophic wildfire. The PLPCO, SITLA, and another commenter stated the presence of weeds in adjacent habitat does not suggest they will encroach in actual beardtongue habitat. They further stated that weeds are unlikely to out-compete the beardtongues or increase the wildfire risk. One commenter stated that Graham's beardtongue habitat is open and generally devoid of other plant species, suggesting the habitat provides some immunity to crowding from invasive weeds.

Our Response:

In our 2013 proposed rule, we documented that weeds alter the frequency, intensity, extent, type, and seasonality of fires (see Summary of Factors Affecting the Species, Invasive Weeds). While weeds are not abundant in beardtongue habitat, they are present, and are abundant in adjacent habitat and where soil disturbance occurs. We considered weeds a future threat in our 2013 proposed rule because the amount of energy development, and associated soil disturbance, expected to occur across these species' ranges is likely to increase weed prevalence within beardtongue habitat, as well as the likelihood that weeds will increase with climate change. However, in this final rule we determined that the 2014 CA actions will be effective at eliminating or reducing threats to the beardtongues, including the potential threat from weeds.

(48) Comment:

The PLPCO and SITLA stated that we concluded dust can negatively affect plants, but we did not provide information on: (1) The amount of dust deposited at what distance; (2) the extent to which dust deposition may adversely affect beardtongue growth and reproduction; and (3) whether those adverse effects are likely to reduce the viability of the species. They further stated that stability of two beardtongue research plots adjacent to unpaved roads suggests the effects of fugitive dust may not be significantly adverse to individual plants even on a cumulative basis. Thus, it is speculative to conclude the disturbance from dust is detrimental to these species.

Our Response:

Based on existing studies that examined the effects of dust on plants, including those in the Uinta Basin, we found that dust can affect plants up to 1,000 m (3280 ft) away with greater effects closer to the disturbance (Service 2014a, entire). Effects of fugitive dust include changes in species composition, altered soil properties, blocked stomata, reduced foraging capacity of pollinators, dehydration, reduced reproductive output, and a decline in reproductive fitness (see Summary of Factors Affecting the Species, Energy Exploration). However, the establishment of conservation areas that limit disturbance, and the use of spatial disturbance buffers of 91.4 m (300 ft) from plants within conservation areas and on all BLM lands, reduce dust generation near both species thus reducing the threat from dust. The 91.4 m (300-ft) buffer from disturbance will ensure that the greatest impacts from dust, which occur closest to the disturbance, will be reduced.

(49) Comment:

The PLPCO and other commenters stated that substantial problems exist with the scientific conclusions and logic concerning the effects of climate change. They contend that, because we acknowledged the correct environmental factors driving reproduction and survival of the beardtongues have not been measured, we have inaccurately characterized the species' population status and trends. Another commenter stated our argument that climate change impacts will be more severe if energy development destroys and fragments the habitat is speculation and not a basis for finding a cumulative threat to the species. They further stated we provided no factual support that climate change is likely to augment the ability of invasive plants to outcompete native plants.

Our Response:

Climate change is occurring, and there is strong scientific support for projections that warming will continue through the 21st century (see Climate Change under

Factor E.

). While down-scaled climate models of the Uinta Basin are not available, annual mean precipitation levels are projected to decrease, and air temperatures and periods of drought are expected to increase in western North America. Because the scientific literature, including the citations PLPCO provided in their comments, indicate the importance of precipitation for plant recruitment, we considered future precipitation patterns in our analysis of climate change and the likely reduction of plant recruitment under reduced precipitation and increased incidence of drought. Additionally, soils are expected to dry more rapidly because of increased temperatures and this is likely to result in reduced soil moisture levels in beardtongue habitat (see Summary of Factors Affecting the Species, Climate Change). Climate change impacts likely will be more severe if oil and gas development destroys and fragments the habitat. Development activities in currently unoccupied but suitable habitat for the species could limit the potential range expansion or shifts necessary for both species to adapt to climate change. The 2014 CA creates conservation areas that limit surface disturbance and create spatial buffers so that the cumulative effects of energy development, livestock grazing, small population sizes, invasive weeds, and climate change are reduced.

(50) Comment:

The PLPCO and SITLA stated that demographic studies (McCaffery 2013a; Reisor and Yates 2011) do not incorporate acceptable sample sizes and analyses as defined by Morris and Doak (2002). Both commenters provided additional citations relevant to population models. They raise several concerns, including:

(1) Limited study locations that do not represent the species' ranges and, therefore, the potential range of demographic variability and environmental stochasticity; (2) the sample contains large detection errors that limit the applicability and statistical rigor of the analyses and are not accounted for in the Population Viability Analysis (McLoughlin and Messier 2004); and (3) the population trend and condition cannot be accurately derived from the study data. Therefore, they contend that a minimum population size for these species cannot accurately be determined.

Our Response:

We acknowledge the limitations inherent in the demographic studies on both beardtongue species. We used the best scientific and commercial information available to assess population status and trends for the beardtongues. The demographic studies we cited provide the only long-term population information for both species, and we considered and included those study results in our analysis. We did not establish a minimum population size for either species in our proposed rule or this document; rather, we stated that populations of either species with fewer than 150 individuals are more prone to extinction from stochastic events (see Summary of Factors Affecting the Species, Small Population Size).

(51) Comment:

The PLPCO and another commenter stated that our assertion that future development will contribute to genetic isolation and reduced adaptive capacity of small populations is not supported. They contend that it is reasonable to assume that both species, as edaphic (soil-related) endemics, are naturally rare and have always occurred in small, isolated populations, and thus genetic effects from isolation may be minimal.

Our Response:

We agree that both beardtongues are edaphic endemics that were historically rare. We used genetic studies from other plant species, comprising the best information available at the time, to infer the effects of habitat fragmentation on gene flow within and between beardtongue populations. We determined it is incorrect to assume no gene flow is occurring between populations without genetic studies.

(52) Comment:

The PLPCO and SITLA stated that, according to the Service, the conservation needs of the species were based upon “expert workshops” rather than actual, available data; and so they suggest that the Service should acknowledge that the best available information may not be sufficient to support the proposed determination.

Our Response:

We used information from scientists with expertise in botany and specific knowledge of one or both species, in addition to published literature and data, where available, to evaluate the best available scientific information for both beardtongues in order to complete a status assessment and determine the resource needs for species viability.

(53) Comment:

The PLPCO stated that we misapplied an existing conservation agreement for the species and did not consider recent efforts to develop a new agreement. The County, State, BLM, and affected industries have been working together to build a comprehensive conservation plan for the two species.

Our Response:

We agree that Graham's and White River beardtongue conservation should be pursued by State, local, private, and Federal agencies, and actions to achieve this objective are detailed in the 2014 CA (see Ongoing and Future Conservation Efforts). The 2014 CA provides significant conservation actions to benefit Graham's and White River beardtongue. Conservation measures in the 2007 Conservation Agreement were considered in the proposal, but did not contain sufficient conservation actions to address threats to the species.

(54) Comment:

The SITLA provided citations of scientific literature that they believe were relevant to our analysis in the 2013 proposed rule, but were not included in the proposed rule.

Our Response:

We appreciate the additional citations to support the analysis in the 2013 proposed rule. We have reviewed the information in these studies, but were not able to apply them to this document as they were general in nature and did not specifically address the Graham's and White River beardtongue species or the threats they may face.

(55) Comment:

Rio Blanco County stated that listing is unnecessary, the proposed rule failed to demonstrate these beardtongue species are being impacted, and our analysis was speculative with respect to impacts identified to occur in the future. The County believed we were attempting to exclude energy development from the area rather than cooperatively seeking effective mitigation measures for developers to demonstrate they can avoid or mitigate such impacts. The County strongly recommended that we consult with the BLM on the conservation of the beardtongues.

Our Response:

In our 2013 proposed rule, we stated that the beardtongues were stable species and that substantial threats were currently not occurring. However, we further stated that threats were likely to occur in the future, at a high intensity and across both species' entire ranges. We have worked cooperatively with various stakeholders, including the BLM, to finalize the 2014 CA to address these identified threats (see Ongoing and Future Conservation Efforts). We determined that the 2014 CA measures will be effective at eliminating or reducing threats to the beardtongues.

(56) Comment:

Rio Blanco and Carbon counties stated that grazing permittees will be negatively impacted by the proposed rule. They contend that the potential impact and trampling damage from large deer and elk populations were only briefly mentioned, but many beardtongue populations overlap with summer and winter range for mule deer and elk. Additionally, they contend that this area has a huge population of wild horses and it was a flaw not to include this information in the proposed rule.

Our Response:

In the 2013 proposed rule, we stated that livestock were likely not the primary grazers of Graham's and White River beardtongue. We updated the section in this document to clarify that wild horses use the habitat areas. We mention some herbivory was attributed to deer (see Summary of Factors Affecting the Species, Grazing and Trampling). We do not have data showing the presence or impacts from elk in beardtongue habitat.

(57) Comment:

One commenter stated that we failed to discuss obvious management measures to address fragmentation and gene flow. They cited a court case (

CBD

v.

Norton,

411F. Supp. 2d 1271, 1290 (D.N.M. 2005)) where the district court rejected arguments that a cutthroat trout species was threatened with extinction from habitat fragmentation and inbreeding because the threat could be “alleviated by management activities” including transplantation.

Our Response:

Transplanting and propagation as management activities to address fragmentation and gene flow of either beardtongue species have not been proven to be effective in conserving either species. However, we worked cooperatively with various stakeholders to finalize the 2014 CA, which is considered in this document. This agreement identifies significant conservation actions for both beardtongues on State, private, and Federal lands across their ranges, including the mediation of habitat fragmentation and reduced population connectivity (

see

Table 1 and Ongoing and Future Conservation Efforts).

(58) Comment:

Several commenters stated that we provided insufficient evidence that grazing is a threat to the

beardtongues in the proposed rule. One commenter stated that we provided no scientific or field evidence that disease or predation (Factor C) is a threat. Commenters contend that the grazing of grasses is believed to have enhanced the habitat for Graham's beardtongue.

Our Response:

We considered predation from many sources in our proposed rule, including grazing by livestock. We concluded in our proposed rule that livestock grazing only impacts the beardtongues when considered cumulatively with increased energy development, invasive weeds, small population sizes, and climate change. We did not consider disease to be a threat to either species, as the best available information does not suggest that disease is impacting Graham's or White River beardtongues. In this listing withdrawal, we have determined that the 2014 CA measures will be effective at reducing threats to the beardtongues.

(59) Comment:

SITLA and several other commenters stated that we demonstrated population numbers and increases sufficient for these species to remain viable into the future. The commenters stated that the Service and experts agree that both species are stable, thus a listing under the Act is premature, as we should not base a listing on either insufficient data regarding the species' population or populations that are not declining. The commenters stated that as more surveys are conducted, more plants are found, and this demonstrates that the population trends are increasing. The commenters noted that these population increases occurred while the plants faced the same threats that were analyzed in the proposed rules. The commenters stated we must consider these population increases in our listing determination.

Our Response:

As survey effort and area has increased, so has the number of plants that have been found. However, an increase in the population due to increased survey area and effort does not indicate that the population is increasing, and we do not have any information to suggest that populations of either species are increasing. Population trends such as increases and decreases are determined by monitoring known occurrences over a period of time. The monitoring data that we evaluated shows that populations for Graham's beardtongue are stable and populations of White River beardtongue are stable or close to stable (McCaffery 2013a, entire; BLM 2011, pp. 6-7).

In the 2013 proposed rule, we stated the beardtongues have stable populations, but faced many threats. Our analysis of the threats, not just the population size, led to our proposed determination of threatened status for the species. In the 2013 proposed rule, we concluded that, while current threats from energy development are low, these threats are expected to increase in intensity, magnitude, and severity across the range of both species so that they are likely to become endangered in the foreseeable future. The 2014 CA was developed to reduce these and other threats to both beardtongue species.

(60) Comment:

One commenter stated they are concerned that we proposed to list a plant variety, rather than a species or subspecies. The commenter requested that we perform a more thorough analysis of the uniqueness of White River beardtongue before we conclude this status review.

Our Response:

White River beardtongue is one of four varieties of Plateau beardtongue (

Penstemon scariosus

). White River beardtongue is differentiated from the other three varieties of Plateau beardtongue primarily by morphological and geologic substrate differences. The use of the term variety in this instance is equivalent to the definition of a subspecies, which is a taxonomic subunit of a species. Under the Act there are three listable entities: Species, subspecies, and distinct population segments. Because White River beardtongue is a subspecies, it is a listable entity under the Act.

(61) Comment:

Two commenters stated there is no evidence the Graham's beardtongue population has suffered from gathering or overutilization (Factor B). The commenters noted that seeds and propagation information are available online, and that the species is highly responsive to cultivation in alpine gardens, which indicates the species will respond successfully to revegetation and reclamation measures.

Our Response:

We did not consider unauthorized collection to be a threat to either beardtongue species (see Unauthorized Collection). We know of no successful ecological restoration efforts involving either species or of their habitat. Other more common beardtongue species are easily cultivated, but we know of no work that has been conducted on the propagation and restoration of Graham's and White River beardtongues.

(62) Comment:

One commenter stated that anytime there is a listing under the Act, we are stifling the wise use of natural resources. Another commenter stated the listing under the Act may not be the best way to ensure survival of the species. Survival would be better assured through well-considered mitigation and reclamation design.

Our Response:

Under the Act, we must list a species if the best available scientific and commercial information indicates that it meets the definition of a threatened or endangered species.

(63) Comment:

One commenter stated the penstemon expert meeting notes did not support the Service's conclusion of threatened status. Additionally, they were concerned that the comment period for the proposed rule did not coincide with the flowering period of either plant, so it was not possible to confirm or refute population data.

Our Response:

We did not solicit the experts' opinions regarding whether listing under the Act was warranted. The purpose of the meeting was to evaluate the best available scientific information for the beardtongues. We reopened the comment period from May 6-July 7, 2014, to accommodate additional time for the public to make comments. This second comment period overlapped flowering for both beardtongue species, which occurs from May through June.

(64) Comment:

Two commenters stated their support for the listing of both beardtongues. One commenter stated that the ecosystem is not resilient enough to withstand a decline in biodiversity, and the beardtongues fulfill a very specific niche. The limited range of both beardtongues is a concern, and their low recruitment makes them naturally vulnerable. There is likely no protection on State and private lands from energy development, and impacts on these lands would increase fragmentation of remaining habitat at a landscape scale. Habitat impacts can have a systemic impact on the entire ecosystem beginning with the bee pollinators. Climate change would likely serve as an added stressor. One of the commenters supports the protection of ecologically meaningful core areas to maintain pollinator and plant diversity. They conclude that the argument to protect biological diversity of the oil shale barrens is a strong one and should be considered.

Our Response:

Our 2013 proposed critical habitat rule (78 FR 47832) for the beardtongues recognized the importance of preserving plant diversity and pollinators in beardtongue habitat. In the 2014 CA, we identified landscape-level protections necessary to protect the beardtongue species and their pollinators from indirect and cumulative impacts (see Ongoing and Future Conservation Efforts) by establishing conservation areas, surface disturbance limits, avoidance buffers, and measures to address livestock grazing, invasive weeds, small population size, and climate change.

The conservation areas provide connectivity between occurrences and protect large populations that will serve as a core area for the conservation of both species. Other incremental stressors will also be addressed individually in order to reduce the cumulative threats that may be acting on both species.

(65) Comment:

One commenter stated the existing protections on BLM lands are not adequate to assure the persistence of the beardtongues. A 150-foot buffer is inadequate, and the Vernal RMP does not require avoidance of plants.

Our Response:

Conservation areas established in the 2014 CA include adequate buffers (91.4 m [300 ft]) and surface disturbance limits (see Ongoing and Future Conservation Efforts).

(66) Comment:

Carbon County asked us to consider the economic impacts to people and local economies from the delay or prevention of energy resource development as a result of a listing of either species. One commenter stated that restricting development is in direct conflict with our Nation's energy policy. The commenter was concerned that he/she would need to obtain a Federal air quality permit, which may include restrictions associated with these listings. This outcome would potentially stop oil and gas and oil shale mining activities on their land and impact their family income in excess of $1 million annually. The commenter indicated that, given the incomplete status of data and understanding, perhaps a threatened species status at this time is premature.

Our Response:

An economic screening analysis was completed for our proposed critical habitat designation; however, the Act does not allow us to consider economic impacts in our decision on whether to list a species. Because we are withdrawing the proposed listing and critical habitat rules, the impacts that the commenters are concerned about will not occur.

(67) Comment:

Several commenters including Duchesne County, Uintah County and SITLA stated that they support the 2014 CA over a decision to list the two species under the Act, and stated that we should take the conservation measures in the 2014 CA into account in our determination of the status of the species. The reasons for their support are sorted into the following categories and explained in greater detail below:

1. Threats: The commenters stated that we do not fully know the range and habitat of the two beardtongue species. They concluded that enacting the 2014 CA (instead of listing the species) would allow time for more surveys so that we will better understand the species population, habitat, and distribution, and allow for conducting transplant and restoration studies on disturbed lands. Also, the commenters concluded that the 2014 CA affords the species landscape-level protection, by including state and private lands in conservation areas.

2. Conservation on non-federal lands: The commenters concluded that the 2014 CA affords more protection for both beardtongue species than a listing under the Act, with less economic impact. Under the Act, listed plants are not protected on non-federal lands without a federal nexus; whereas, the commenters state that the 2014 CA provides legally binding protection on approximately 10,000 acres for both species on state and private lands. Additionally, they conclude that the 2014 CA promotes cooperation among landowners and managers.

3. Implementation and funding: Uintah County, SITLA, and PLPCO stated that they are committed to implementing the 2014 CA, and the State of Utah Endangered Species Mitigation Fund has enough funding to ensure success of the 2014 CA.

4. Timeframe: The commenters state that the 2014 CA can be reassessed at the end of the duration of the agreement and renewed if necessary, or the species can then be listed under Act.

Our Response:

The Act does not allow us to consider economic impacts in decisions on whether to list a species under the Act. However, we agree that the 2014 CA provides significant conservation benefits to Graham's and White River beardtongues, including providing landscape-level protections through the inclusion of conservation area protections on non-federal lands; promoting cooperation with federal and non-federal partners; providing non-federal funding and commitments for the conservation of the species; and allowing for more time to better understand the species habitat, abundance, and demography. In addition, the 2014 CA protects 64 percent of the known occurrences of Graham's beardtongue and 76 percent of known occurrences of White River beardtongue throughout the species' ranges by establishing conservation areas where surface disturbance will be limited and plants will be avoided by 91.4 m (300 ft), or unavoidable impacts mitigated. The 2014 CA specifies that, on federal lands, both species will be protected by buffers of 91.4 m (300 ft) from surface disturbing activities both within and outside of conservation areas. Through our Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) (68 FR 15100, March 28, 2003) process, we determined that these protections were adequate to reduce the threats to the species such that they no longer warrant listing as threatened or endangered.

(68) Comment:

The SITLA and one other commenter noted that technical experts concluded that current plant populations of both beardtongue species are stable and likely to persist into the future.

Our Response:

We agree that the best available information shows that the monitored sites of Graham's and White River beardtongue appear to be stable (McCaffery 2013a, entire; BLM 2011, p. 6-7). We also concluded that both species of beardtongue are likely to persist into the future when considering the protections of the 2014 CA that reduce the threats to the species.

(69) Comment:

The County Commission of Duchesne County stated that they object to the proposed rules to list Graham's and White River beardtongues and designate critical habitat because the proposed listing rules are not consistent with Duchesne County General Plan policies; the proposed rules are not consistent with State of Utah plans for the subject lands; and the proposed rules will economically adversely affect small businesses and governments.

Our Response:

The Act does not allow us to consider economic impacts in decisions on whether to list species. Our proposed listing rules were based on an analysis of the threats to Grahams and White River beardtongues in accordance with the Act. However, since publication of our proposed rules, we have developed a 2014 CA which reduces the threats to the species, and we have concluded that neither species warrants listing under the Act.

(70) Comment:

Duchesne County asked to be included in the development of recovery plans.

Our Response:

We welcome participation by any stakeholder in the development of conservation and recovery efforts for Graham's and White River beardtongues. However, recovery plans pursuant to the Act will not be necessary because we have determined that neither species warrants listing under the Act.

(71) Comment:

Duchesne County stated that they expect the Service to recognize valid, existing rights including access within critical habitat, such as access to mineral rights.

Our response:

We are withdrawing our proposed rules to list Graham's and White River beardtongues and designate critical habitat. Instead we have

determined that the protections of the 2014 CA conserve the species through the designation of conservation areas to the point that these species no longer meet the definition of threatened or endangered. Landowners and managers where these conservation areas will be established are participating in the conservation agreement either directly or indirectly. Within these conservation areas valid, existing landowner rights, including access, will be allowed, but controlled such that new surface disturbance does not occur within 91.4 m (300 ft) of plants, and surface disturbing activities are limited to 5 percent where Graham's beardtongue occurs and 2.5 percent where White River beardtongue occurs.

(72) Comment:

Many commenters (including 4,890 form letters) supported the listing of Graham's and White River beardtongues because they believe the 2014 CA is not adequate to prevent extinction of both beardtongue species. Their reasons for supporting a listing are sorted into the following categories with further explanation:

1. Threats: The commenters stated that the conservation agreement does not prevent or reduce the threats to the species including those from energy development, road construction and maintenance, OHVs, and climate change; the 2014 CA will allow an increase of identified threats to the species in comparison to a listing of the species; the measures addressing grazing are vague and not adequate to conserve the species; the 2014 CA should enact mandatory buffers to protect the species and their habitat; conservation agreements are not as protective as a listing under the Act, especially compared to the protections under Section 9 of the Act; the 2014 CA has no benefits and possible negative impacts to the species on Federal lands; threats such as invasive species are not addressed and measures for these threats are unclear; neither species has protections on state and Federal lands; therefore, more protection is required on Federal lands; the 2014 CA does not provide assurances that impacts to the species will be reduced or mitigated; both beardtongue species are ranked by the UNPS as species of extremely high concern, the highest priority category for conservation; and because both species are considered candidate species, they already meet the criteria for listing under the Act.

2. Buffers and disturbance thresholds: The commenters state that the 91.4 m (300 ft) buffer from surface disturbing activities as outlined in the 2014 CA is discretionary and inadequate to protect the plant and its pollinators, whereas the 700 m (2,297 ft) proposed critical habitat area surrounding known occurrences is more appropriate because it would protect pollinator habitat and genetic movement; buffers of at least 200 m (650 ft) are needed; the 2014 CA allows disturbance of 5 percent for Graham's beardtongue and 2.5 percent for White River beardtongue conservation areas, without a biological basis for allowing surface disturbance caps in the conservation areas; and the 2014 CA does not say how the conservation team will track surface disturbance levels.

3. Conservation Areas and critical habitat: The commenters are concerned that the conservation areas in the 2014 CA protect less acreage than the amount of area that was proposed for critical habitat; the larger area proposed for critical habitat was determined in our proposed rule to be “essential to the conservation of the species” and protects the species on a landscape level, including protecting pollinator nesting sites and secondary floral resources; the 2014 CA protects only 76 percent of the population of White River beardtongue and 64 percent of the population of Graham's beardtongue, which the commenters believed was insufficient; the 2014 CA does not provide for the redundancy, resiliency, and representation of either species; and the 2014 CA does not include suitable habitat to address the threat of climate change.

4. Timeframe: The commenters expressed concern that the interim conservation areas are not protected over a long enough term and may be developed at any time; additional habitat loss and fragmentation can negatively affect small populations; the 15-year term of the agreement is too short to recover the species whereas a listing under the Act provides protections until the species is recovered; and the agreement terminates if either species is listed.

5. Implementation and funding: The commenters stated that the 2014 CA relies on future, voluntary, and unfunded conservation measures that have not been implemented, shown to be effective, and have no certainty of implementation; private landowners have not authorized conservation measures on their lands; the 2014 CA does not include an implementation plan; conservation measures such as transplanting and habitat restoration are unproven; there is no funding identified for all the tasks; voluntary conservation agreements are not proven to adequately protect species from extinction whereas protections under the Act, including listing, have a 99 percent success rate of preventing extinction; the State of Utah has not committed adequate resources or authority for implementing the 2014 CA; and listing under the Act would be better because it requires recovery planning and Federal funding.

6. Conservation team: The commenters expressed concern that the conservation team does not include representatives from all stakeholders, including those from the Utah and Colorado Natural Heritage Programs, Uinta Basin Rare Plant Forum, Red Butte Garden, Utah Division of Oil Gas and Mining, Utah State Lands and Forestry, Utah Division of Wildlife, beardtongue experts, and environmental advocacy groups; the conservation team lacks the expertise to carry out the 2014 CA; the state as a signatory to the agreement does not apply a scientific approach to other natural resource matters; the duties of the conservation team are not adequate to implement all the tasks outlined; the conservation team has not been identified or funded; and the County and State have not previously participated or cooperated in ongoing efforts to conserve rare plant species across the state or in Uintah County.

7. Other: The commenters noted that the 2014 CA was developed without public input and all interested stakeholders; the 2014 CA sets a bad precedent; and pursuing a conservation agreement wastes taxpayer's money since this is the third time the species has been proposed for listing under the Act.

Our Response:

We used our Policy for Evaluation of Conservation Efforts When Making Listing Decisions to evaluate the certainty that the conservation measures in the 2014 CA will be implemented and effective at reducing threats to Graham's and White River beardtongues. We concluded that the conservation measures in the 2014 CA have a high certainty of being implemented and effective. Our detailed PECE analysis is available for review at

http://www.regulations.gov

and

http://www.fws.gov/mountain-prairie/species/plants/2utahbeardtongues/.

See the Ongoing and Future Conservation Efforts and PECE Analysis sections below for more information. Our response to the comments in each category listed above is as follows:

1. Threats: The 2014 CA reduces the threats to the species by providing protections from energy development, invasive weeds, climate change, and small population sizes through the establishment of 44,373 acres of conservation areas where surface disturbance is limited, and where disturbance occurs, it will avoid plants

by 91.4 m (300 ft). In addition, the 2014 CA provides for protections of both species on non-federal lands in key units (conservation areas) that would otherwise not be protected unless a federal nexus occurred. Under Section 9 of the Act, listed plants do not receive protections on non-federal lands unless a federal nexus applies. Therefore, even if listed, many plants occurring on non-federal lands may still be vulnerable to the identified threats. In the 2014 CA, threats from grazing are addressed through a monitoring and adaptive management process where BLM will assess and reduce livestock impacts where they occur. Additional threats from invasive species are reduced through the development and implementation of a weed management plan. OHV use was not considered a threat to the species in our proposed rule; however, establishment of conservation areas and BLM management of their lands for the beardtongue species will minimize the effects of OHVs through consideration of the needs for protection of both species during the development of the BLM travel management plan.

2. Buffers and Disturbance Caps: We have revised the language in the 2014 CA to ensure that adherence to the 91.4 m (300 ft) avoidance buffers is mandatory, rather than discretionary, and exceptions will only be allowed when it is beneficial for the species or its habitat and approved by the conservation team on non-federal lands, or after conference with the USFWS on federal lands (Table 4). The 91.4 m (300 ft) avoidance buffers were selected to protect the species from the effects of surface-disturbing activities because this is the buffer distance that is currently being used under Section 7 consultations under the Act in the Uinta Basin in Utah to avoid direct and indirect effects that are likely to adversely impact listed plant species. This buffer distance is based on a review of literature that shows that, although the effects of dust can extend out to 1,000 m (3,281 ft), and ground disturbance may have additional effects out to 2,000 m (6,562 ft), the greatest impacts occur closer to the disturbance. Thus, 91.4 m (300 ft) was selected to balance the protection of the species with energy development (Service 2014a, entire). Surface disturbance caps of 2.5 percent for White River beardtongue and 5 percent for Graham's beardtongue were selected to minimize habitat fragmentation that can occur from full field (40-acre spacing) development, which results in 13 percent surface disturbance. We will calculate surface disturbing activities as explained in the 2014 CA (Table 4, conservation action 1) by tracking activities that require a permit, include permanent structures, or construction or expansion of new or existing roads.

3. The acreage included in the conservation areas is less than the acreage that we proposed as critical habitat; the proposed critical habitat for the two beardtongue species overlap, and total 75,846 acres. However, critical habitat protections for plants do not apply on non-federal lands without a federal action; therefore, proposed critical habitat on federal lands alone would typically apply to only 49 percent of the population of Graham's beardtongue and 60 percent of the population for White River beardtongue. The 2014 CA protects a greater number of plants by protecting 64 percent of Graham's beardtongue plants and 76 percent of White River beardtongue plants on both federal and non-federal lands. In addition, the conservation areas are strategically placed to provide habitat connectivity, thereby conserving the resiliency, redundancy, and representation of the species across their ranges (Figure 3; Table 3). The 2014 CA conservation areas include unoccupied habitat on slopes of various aspects that may allow the species to adapt to chosen microhabitats as the climate changes. There are many ways to achieve conservation of these two species. The proposed critical habitat designation identified all populations, with the understanding that critical habitat would not convey or guarantee conservation. The 2014 CA conserves a smaller amount of habitat, but provides greater protection because it actually conserves a greater percentage of the population.

4. Timeframe: We did not rely on the interim conservation areas for our PECE analysis and final determination because the interim conservation areas are subject to development at any time and do not provide certainty of protection for either species. The timeframe of the 2014 CA is 15 years. During this time we hope to better understand the intensity, magnitude, and scale of the threats to both beardtongue species including those from energy and oil shale development. At any time during or near the end of the 15 years, parties to the agreement can choose to continue with and renew the conservation agreement. If during or after this timeframe, either species meets the definition of threatened or endangered, we can act to protect the species through the listing process. If the beardtongue species are listed under the Act, the 2014 CA expires automatically to avoid a situation where the parties are bound to both the commitments in this agreement and the potentially additive requirements of the Act. This conservation framework provides a consistent regulatory framework for landowners or managers who may be affected, while still protecting the beardtongue species under either scenario.

5. Implementation and funding: Through our PECE analysis process we found that the 2014 CA has a high certainty of being implemented and effective. Our detailed PECE analysis is available for review at

http://www.regulations.gov

and

http://www.fws.gov/mountain-prairie/species/plants/2utahbeardtongues/.

6. Although the signatories to the conservation agreement include federal, state, and county governments, we welcome participation by any stakeholder or beardtongue expert to provide relevant information and express their viewpoint in the process of administering the 2014 CA. We will reach out to others with knowledge about the two beardtongue species and landowners to ensure they have an opportunity to participate in the conservation of the species as we implement the 2014 CA. Funding for the implementation of the agreement, such as for establishing conservation areas, will be supplied by the various signatories through in-kind services and each land owner or manager will provide funding for conservation measures on their lands, such as surveys prior to surface disturbing activities. The conservation team includes botanists from the BLM and USFWS who are well qualified to provide botanical expertise.

7. The 2014 CA was developed by county, state and federal entities that have the authority to regulate and permit activities on lands within their jurisdiction that overlap with Graham's and White River beardtongue habitat. The protections in the 2014 CA were analyzed through our PECE process and found to have a high certainty of implementation and effectiveness.

(73) Comment:

A couple of commenters asked us to identify which areas were subject to the 5 percent disturbance limit cap and which areas are subject to the 2.5 percent disturbance limits cap and to make this information public. In addition, one commenter asked for clarification about whether the disturbance caps applied per unit or per landowner. One commenter stated that this information must be available for public comment before the agreement can be finalized.

Our response:

We provided a map of the conservation areas (Figure 3; also included in the 2014 CA) showing the areas where the different disturbance caps apply. The disturbance caps apply per landowner per unit (units are shown on Figure 3). The conservation agreement is a voluntary agreement and may be finalized without public comment, although we made the 2014 CA available for comment during our public comment period on the proposed rules and associated draft economic analysis and draft environmental assessment of critical habitat.

(74) Comment:

One commenter does not agree that the designation of conservation areas or the surface disturbance cap of 5 percent for Graham's beardtongue and 2.5 percent for White River beardtongue included in the 2014 CA is necessary for the protection of either beardtongue species because they do not agree with the science used to support these protections.

Our response:

In our proposed rule, we used the best available information to support our conclusions that both Graham's and White River beardtongue need landscape-level conservation and protections, particularly from full-field energy development. The establishment of conservation areas provides the necessary landscape-level conservation, and the surface disturbance caps protect both beardtongue species from full-field development.

(75) Comment:

One commenter stated that the Service did not follow its own guidance and policy regarding the peer review process for the proposed rules, citing the Service's Information Quality and Peer Review Guidelines (revised June 2012) implementing the Office of Management and Budget's December 16, 2004 Final Information Quality Bulletin for Peer Review. The commenter concluded that the peer review that was conducted by the Service for these proposed rules is not adequate because the peer reviewers did not fully analyze the scientific information presented in the proposed rules nor did they point out important flaws in the Service's analysis. At least one peer reviewer was not objective in their review because they are negative toward the oil and gas industry.

Our Response:

As outlined in the proposed rule, we followed our peer review guidance and process for the proposed rules (59 FR 34270; July 1, 1994). We requested peer review from seven peer reviewers, all of whom are knowledgeable about the two beardtongue species. We received completed peer reviews of the proposed rules from four of these peer reviewers. These peer review comments are included in our administrative record and are available at

www.regulations.gov.

We reviewed the documentation provided by the commenter regarding the objectivity of one of the peer reviewers and did not find a conflict. That peer reviewer, as a citizen, submitted a letter to the Colorado Oil and Gas Conservation Commission in support of a larger setback for oil and gas drilling from residential homes. We do not view this action as compromising the objectivity of a peer review of our proposed rules.

(76) Comment:

One commenter asked us to state the value of the conservation areas to the conservation of the two species: specifically, whether the conservation areas protect known occurrences or only suitable habitat.

Our Response:

The conservation areas protect both known occurrences and unoccupied suitable habitat. Of the known occurrences, the conservation areas encompass and protect 64 percent of Graham's beardtongue plants and 76 percent of White River beardtongue plants.

(77) Comment:

One commenter questions the ability of the conservation team to accomplish all the tasks identified in the 2014 CA, given the lack of knowledge and experience of the conservation team members and lack of funding. The commenter requested that we determine minimum qualifications for conservation team members as well as identified funding.

Our Response:

We conclude that the conservation team has the knowledge and ability to carry out the conservation measures in the conservation agreement. The main protection in the 2014 CA is the establishment of conservation areas, which the signatories to the agreement have the authority and ability to implement. The BLM has sufficient expertise in controlling invasive weeds and monitoring and managing livestock impacts to the species because they have been managing grazing allotments since the passage of the Taylor Grazing Act of 1934, and now manage under the Federal Land Management and Policy Act of 1976. We have developed guidelines for surveying and monitoring Federally listed and candidate plant species (Service 2011, entire), and these guidelines will be used to monitor Graham's and White River beardtongues as committed to in the 2014 CA. The BLM has funded and continues to fund demographic monitoring of both species and management of energy development and sensitive plant species protection on their lands. Uintah County and Utah DNR have funded surveys for both beardtongue species over multiple years.

(78) Comment:

One commenter questioned whether the populations we report in the 2014 CA for both Graham's and White River beardtongues are genets (i.e., colonies of clones sharing identical genes reproduced vegetatively from the same individual) or ramets (i.e., individual stems or clones from the same genet). The commenter proposes that the population size may be about half of the number we report because ramets may have been counted instead of genets. The commenter acknowledges that others do not agree that the plants are clonal.

Our Response:

During transplanting of Graham's beardtongue in 2012, plants were excavated and inspected but clonal reproduction was not observed (Brunson 2012a, entire; Reisor 2014a, entire). Graham's beardtongue may produce multiple rosettes from one branching caudex (stem), but these might represent only 5-10 percent of the population (Brunson 2012a, entire), and these are not thought to contribute greatly to inflated population counts (Reisor 2014a, entire). Based on this information, we conclude that surveys represent accurate counts and that our population estimates are correct based on the best available information.

(79) Comment:

One commenter stated that several citations in the 2014 CA should be corrected including Kramer

et. al

2011, which is not relevant to pollination of penstemon species.

Our Response:

We have reviewed the 2014 CA, and made the suggested citation changes except for Kramer

et. al

2011, which is used in the context of genetic relationships between penstemon species.

(80) Comment:

One commenter recommended that we include pollinator scarcity as a threat.

Our Response:

We included pollinator scarcity as an impact under energy development and exploration in the 2014 CA (see Table 4. Threats to Graham's and White River Beardtongues and Associated Conservation Actions). This threat is being reduced by establishing conservation areas and limiting disturbance, which will allow pollinators adequate habitat and secondary floral resources.

(81) Comment:

One commenter was concerned that we used a lower population number of 11,423 to characterize the population of White River beardtongue compared to the 25,000 as estimated by other sources.

Our Response:

Our population number of 11,423 plants of White River beardtongue in the proposed rule was determined from the best scientific and

commercial data available, based on more recent data than the higher population estimate the commenter suggest using. Since the publication of the proposed rule, we received additional survey information that increased our estimate of the population of White River beardtongue to 12,215 plants.

(82) Comment:

A couple of commenters stated that we made contradictory conclusions regarding the certainty of oil shale development. The commenters gave examples, such as the Draft Economic Screening Memorandum, which acknowledges the uncertainty of the viability of oil shale development, whereas the proposed rule states that oil shale development is “highly likely.” In addition, the proposed rule concluded that oil shale development will occur sooner, and to a greater extent than concluded by the Draft Economic Screening Memorandum. The commenters concluded that we should revise the estimates of the magnitude of threats from energy development.

Our Response:

Based on our analysis as discussed under Summary of Factors Affecting the Species, Energy Exploration and Development, we found that without protections, oil shale development is a threat to the species in the foreseeable future. Our Draft Economic Screening Memorandum assessed only the economic impacts from designating critical habitat, and thus some of the conclusions of the memorandum differ from our assessment of threats to the species, as they are evaluating different questions.

(83) Comment:

One commenter stated that the 2014 CA restricts and prohibits the ability of leasees to develop their mineral rights adequately. The commenter stated that the BLM cannot restrict additional surface disturbance on existing leases once the disturbance caps as defined in the 2014 CA are reached.

Our Response:

Surface disturbance caps within conservation areas are sufficient to allow reasonable access to existing leases with current technology. BLM has committed to limiting surface disturbance within conservation areas.

(84) Comment:

One commenter stated that the 91.4 m (300 ft) buffer around plant occurrences in the draft conservation agreement is too large, and there is no demonstrated need for such a large buffer. Instead, the commenter recommends a 30.5 m (100 ft) buffer with dust suppressant measures.

Our Response:

Our review of available literature shows that impacts to plants from dust can extend out to 1,000 m (3,281 ft), and additional impacts from surface-disturbing activities can extend to 2,000 m (6562 ft) (Service 2014a, entire). The greatest impacts occur closest to the disturbance, and the 91.4 m (300 ft) buffer balances energy development with protection of listed plant species.

(85) Comment:

One commenter stated that the 2014 CA should revise the timeframe when surveys should be conducted in relation to surface-disturbing activities, so that surveys must be conducted at least one year prior to surface disturbing activities, and that we should extend the length of time that surveys are valid (currently one year) so that surveys are not outdated prior to the commencement of surface-disturbing activities.

Our Response:

The Service has developed guidelines for surveys of listed plant species in Utah (Service 2011, entire). Our guidelines state that surveys for listed plant species are good for one year because seeds may disperse and colonize new areas, or remain in the seed bank until conditions are favorable. We believe this conclusion and our guidelines are still valid.

(86) Comment:

One commenter asked us to clarify when plant salvage and mandatory avoidance measures would apply under the implementation of the 2014 CA.

Our Response:

Under the terms of the 2014 CA, plant salvage will occur voluntarily when plants are directly impacted by surface-disturbing activities outside of designated conservation areas on non-federal lands. We did not consider plant salvage in our analysis of the effectiveness of the 2014 CA to conserve the species, because these measures are voluntary and cannot be relied upon to protect the species from threats. However, mandatory avoidance measures were evaluated in our PECE process. Mandatory avoidance measures occur within all conservation areas, and within and outside of conservation areas on BLM lands; in these areas surface-disturbing activities will avoid plants by a 91.4 m (300 ft) buffer. Surface-disturbing activities may only occur within 91.4 m (300 ft) of plants if they benefit or reduce impacts to the species or habitat, and, on non-federal lands, may only occur if they are approved by the conservation team, or on federal land, after BLM has conferenced with the Service.

(87) Comment:

One commenter stated that the BLM cannot incorporate the provisions of the 2014 CA into permits and its RMP without analyzing the impacts through NEPA analysis.

Our Response:

The terms of the 2014 CA will be applied to proposed projects on BLM lands during the NEPA process on those projects, and will thus not require an RMP amendment in order to implement them. In the 2014 CA, the BLM agreed to incorporate the terms of this agreement into its planning process during the next RMP revision, but in the interim the agency will proceed through the NEPA planning and public review process on a project-specific basis.

(88) Comment:

One commenter stated that mitigation for impacts to both beardtongue species should be clearly spelled out in the 2014 CA when avoidance by 91.4 m (300 ft) is not possible. In addition, mitigation should be considered for impacts over the 5 percent and 2.5 percent disturbance caps. These mitigation measures should be developed with the involvement of all stakeholders.

Our Response:

Surface disturbing activities may only occur within 91.4 m (300 ft) of plants if they benefit or reduce impacts to the species or habitat and, on non-federal lands, if they are approved by the conservation team, or on federal lands, if BLM has conferenced with the Service. Mitigation for unavoidable impacts will be determined on a project-specific basis. Successful ecological restoration may be used in conservation areas on private lands to offset effects over the disturbance limits set by the 2014 CA.

(89) Comment:

One commenter stated that the May 5, 2014 press release, notice of availability (79 FR 25806), and supporting documents were confusing to the public because they did not clearly present the options to protect the beardtongue species including either signing and enacting the 2014 CA, or listing the species as threatened and designating critical habitat under the Act. In addition we did not provide a PECE analysis.

Our Response:

Our document stated that: “We intend to consider this conservation agreement once it has been signed in our final decisions on whether to list Graham's beardtongue and White River beardtongue under the Act, and invite the public to comment on the agreement and its impact on the conservation of these species, and whether the draft agreement sufficiently ameliorates the threats to Graham's beardtongue and White River beardtongue. We intend to evaluate this agreement under our Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE policy) (68 FR 15100, March 28, 2003; 79 FR 25806, p. 25811).” Our detailed PECE analysis is now available for review at

http://www.regulations.gov

and

http://www.fws.gov/mountain-prairie/species/plants/

2utahbeardtongues/.

See the Ongoing and Future Conservation Efforts and PECE Analysis sections below for more information.

(90) Comment:

One commenter stated that Graham's and White River beardtongues are different species with different geographical ranges and population demography and should not be lumped together for listing and analysis.

Our Responses:

We agree that Graham's and White River beardtongues are different species with different geographical ranges and population demography, and they were considered separately for our listing determination. However, they appear in the same listing document because their ranges overlap and threats to both species are similar.

(91) Comment:

One commenter encouraged us to list the species without designating critical habitat if we decide to enter into the 2014 CA.

Our Response:

We have concluded that the 2014 CA adequately reduces the threats to the species, and we no longer consider either species to be warranted for listing under the Act.

(92) Comment:

One commenter questioned the participation of State of Utah employees, the Director of SITLA, and Uintah County officials in the 2014 CA because he doubted their commitment to the species' conservation based on their track record with conservation of rare plant species in the past.

Our Response:

Through our PECE process we evaluated the conservation measures of the 2014 CA, past conservation actions, and the commitments made by state and local organizations. We determined that the conservation effort, the parties to the agreement that will implement the effort and the staffing, the funding level, the funding source and other resources necessary to implement the effort are identified. Through our PECE analysis we concluded that the conservation measures in the 2014 CA have a high certainty of being implemented and effective.

(93) Comment:

One commenter stated that increased population estimates for the species may be the result of increased surveys and not indicative of an increasing population trend. The commenter noted that the population estimate of approximately 40,000 Graham's beardtongue plants is more likely to be 20,000 plants because the survey data incorporates surveys over a 35-year period and some of the sites may now be extirpated or reduced in size, or some of the plant may have been misidentified.

Our Response:

We used the best available information to determine the known population size of each species (see Background-Graham's beardtongue,

Species Information,

Distribution and Trends). We acknowledge that the best available information may contain counts of plants that no longer occur, but it also may include underestimates of some populations where plant occupancy was documented but counts were not provided, in which case we assumed a count of only 1 plant. All survey information was provided by trained botanists, so it is not likely that plants were misidentified. We agree that as we increase our survey effort the number of plants we find also increases, and that this is not indicative of an increasing population trend.

(94) Comment:

One commenter stated that increasing temperatures, less rainfall, and increased herbivory, in addition to increased disturbance from roads, dust, and livestock grazing, may push Graham's beardtongue to extinction over the next 25 years. The commenter concluded that the 2014 CA term of 15 years is not sufficient in light of the Enefit mining plan which extends for a period of 30 years.

Our Response:

The term of the 2014 CA is 15 years, but can be renewed by any or all parties at that time to continue to conserve both beardtongue species. We will re-evaluate the need for protections under the Act if during or after the period of the 2014 CA either species is warranted for listing as threatened or endangered. See further discussion in the Determination section of this document regarding the foreseeable future of the threats.

(95) Comment:

One commenter stated that the 2014 CA could be considered sufficient to reduce threats to the species if the termination clause was removed and more permanent protections were committed to, including designating ACECs on BLM lands and conservation easements on private lands.

Our Response:

We concluded that the conservation measures in the 2014 CA have a high certainty of being implemented and effective. Our detailed PECE analysis is available for review at

http://www.regulations.gov

and

http://www.fws.gov/mountain-prairie/species/plants/2utahbeardtongues/.

See the Ongoing and Future Conservation Efforts and PECE Analysis sections below for more information.

(96) Comment:

A few commenters concluded that we overestimated the threats to the beardtongue species, specifically fugitive dust, grazing, OHV use, unauthorized collection, invasive weeds, small population size, and climate change, and thus the commenters did not support our finding that the beardtongues are in danger of extinction. The commenters furthered concluded that if we find that these factors are not threats to the species individually, then they do not constitute a cumulative threat to the species.

Our Response:

We have determined that the 2014 CA adequately addresses threats to the species that were identified in our proposed rule, and the species is no longer considered warranted for listing under the Act.

(97) Comment:

One commenter concluded that we overstated the threats to the species from future energy development. The commenter stated that energy development is not a threat to the species because populations are stable, predictions of future energy development are not supported, there is no commercial oil shale development in the Uinta Basin, the two beardtongues species are found on steep slopes where energy development is more costly, the density of well pads and size of disturbance from drilling projects are decreasing, and the BLM already provides protection for the species as a candidate species.

Our Response:

Our analysis of the threats to the species shows that although populations are currently stable, without the 2014 CA protections they are subject to landscape-level threats from future energy development. See our analysis and discussion of the threats to both beardtongue species from energy development under Summary of Factors Affecting the Species, Energy Exploration and Development.

(98) Comment:

One commenter supports the conclusions of the proposed rules that energy development including oil shale development and traditional oil and gas drilling poses a threat to the species.

Our Response:

We agree that energy development is a threat to the species; however, we have determined that the 2014 CA adequately addresses these threats by establishing conservation areas throughout the range of the species.

(99) Comment:

One commenter stated that the 2014 CA does not address threats where habitat is leased for both oil and gas development and oil shale development and does not provide information on existing surface disturbance.

Our Response:

We have concluded that the 2014 CA addresses the threats of oil shale and traditional oil and gas development by establishing conservation areas, restricting surface disturbance within these conservation areas, and keeping surface disturbing

activities at least 91.4 m (300 ft) from Graham's and White River beardtongues. Calculations of existing surface disturbance are ongoing and will be incorporated into the 2014 CA once they are available.

(100) Comment:

One commenter stated that we should provide information regarding the seismic project discussed in the proposed rule.

Our Response:

The proposed seismic project is still being evaluated under the NEPA process by the BLM Vernal Field Office. This seismic project encompasses 9 sections in Utah and 5 sections in Colorado. The purpose of the project is to assess the potential for oil and gas development by acquiring information on potential resources present from four parallel seismic lines totaling 7.3 miles. Additional information about the project can be found on the Vernal BLM projects Web page once it is ready for public review at

http://www.blm.gov/ut/st/en/fo/vernal/planning/nepa_.html.

As discussed below (see Summary of Factors Affecting the Species, Energy Exploration and Development,

Traditional Oil and Gas Drilling

), we view this project as an indication that traditional oil and gas development will very likely increase in the habitat of both of these species. However, the 2014 CA provides protections to avoid, minimize, and mitigate the impacts of oil and gas development, effectively reducing this threat to the species.

(101) Comment:

One commenter stated that climate change alone poses a threat to the species. The Colorado Natural Heritage Program's Colorado Wildlife Action Plan assessed the vulnerability of rare plants to climate change and found that both Graham's and White River beardtongues were extremely vulnerable (June 2011). The Utah Heritage Program model for Graham's beardtongue found that the timing and amount of moisture was important in the distribution of the species. The commenter concluded that we must designate critical habitat to conserve the species instead of relying on the conservation areas delineated in the 2014 CA.

Our Response:

We agree that without protections climate change poses a threat to the species when considered cumulatively with other threats. We have concluded that the 2014 CA adequately reduces the threat of energy development by establishing conservation areas that protect 64 percent of the population of Graham's beardtongue and 76 percent of White River beardtongue and that span the range of environmental variation within the species' range. In addition, the 2014 CA addresses climate change with the installation of a weather station and by studying the response of the two species to weather patterns. Once we can better predict the two species' response to climate changes, we can then take measures to address the species' future needs from the threat of climate change. In addition, the 2014 CA provides for the resiliency, redundancy and representation of both species by protecting adequate habitat and an adequate percent of the population in multiple sites that include various slope aspects and important natural community associates and attributes, such as pollinators, pollinator nesting sites, and secondary floral resources.

(102) Comment:

One commenter asked us to reconsider the effects of livestock grazing on both species, because there is documentation of the effects of herbivory to reproduction and effects from other herbivores that contribute to lost reproduction, trampling effects on pollinators, declining habitat conditions with several allotments within the range of both species needing improvement, and low and sporadic reproduction making it vulnerable to stochastic events and habitat changes.

Our Response:

We agree that without conservation protections, livestock grazing poses a threat to both species in conjunction with other threats including energy development. We have addressed these threats in the 2014 CA, which states that BLM will monitor impacts from grazing and will adjust grazing regimes accordingly to reduce associated impacts.

(103) Comment:

A commenter stated that small population size poses a threat to the species because small populations that are fragmented are more vulnerable to habitat changes and disturbances. The commenter cited a demography study (McCaffery 2013a, entire) that shows that neither species is stable, and both species are threatened by small population sizes and habitat fragmentation.

Our Response:

We agree that, without protections, small population size is a threat to the two beardtongue species when considered cumulatively with other threats. However, we reviewed the same study cited by the commenter and came to a different conclusion about the stability of these populations. Available studies indicate the monitored sites for Graham's beardtongue are stable (McCaffery 2013a, p. 15; BLM 2011, p. 6-7). For White River beardtongue, one site was found to be stable and a second site was close to stable with a very low chance of extinction over the next 50 years (McCaffery 2013a, p. 15). The 2014 CA protects 64 percent of Graham's beardtongue, and 8 of the occurrences protected in conservation areas have a 7 percent or lesser chance of extinction, and 4 occurrences have less than a 2 percent chance of extinction over the next 50 years (McCaffery 2013a, entire; Service 2014d, entire). The 2014 CA protects 76 percent of White River beardtongue, and 4 of the occurrences protected in conservation areas have a less than 1 percent chance of extinction over the next 50 years (McCaffery 2013a, entire; Service 2014d, entire).

(104) Comment:

One commenter stated that Graham's beardtongue has been surveyed sufficiently and both Graham's and White River beardtongues are some of the most surveyed species in Utah. Baseline surveys from 1978 and 1979 show that Graham's beardtongue have declined since that time period.

Our Response:

The best available information based on continuous and consistent monitoring of Graham's and White River beardtongue from 2004 to 2012 does not indicate that the populations of either species are declining (BLM 2011, pp. 6-7; McCaffery 2013a, entire).

(105) Comment:

One commenter stated that at 12,215 plants, the population of White River beardtongue is low enough to be considered for listing as endangered. The commenter noted that about one-third of the population occurs on BLM lands. The commenter noted that the population of this species is precarious. Another commenter indicated that populations of both beardtongue species in Colorado are small, and thus warranted for protection under the Act.

Our Response:

As discussed below under Summary of Factors Affecting the Species, Small Population size, some species exhibit rarity but are not warranted for listing under the Act. A species that has always been rare, yet continues to survive, could be well equipped to continue to exist into the future. Many naturally rare species have persisted for long periods within small geographic areas, and many naturally rare species exhibit traits that allow them to persist despite their small population sizes. Consequently, the fact that a species is rare does not necessarily indicate that it may be in danger of extinction in the foreseeable future. Rarity is a characteristic that may increase a species' vulnerability to factors such as demographic stochasticity, environmental stochasticity, genetic stochasticity, and natural catastrophes. However, whether a given rare species is affected by any of these factors, and the magnitude of

the effect of these factors on the species' ability to persist into the foreseeable future, is species- and context-specific. Consequently, in general the Service does not consider rarity alone to be a threat, unless there is information identifying threats to the species and linking those threats to the rarity of the species.

In this case, the current population size of White River beardtongue in and of itself does not mean that it is endangered or threatened. The best information that we have about the population indicates that White River beardtongue is stable (McCaffery 2013a, entire; BLM 2011, p. 6-7), and we have concluded that the 2014 CA sufficiently protects the species from threats. The large occurrence of White River beardtongue that occurs on BLM lands is protected in a conservation area.

(106) Comment:

One commenter stated that we must consider that the BLM conservation measures, such as the 91.4 m (300 ft) buffer to protect the species, are not enforceable, have not been adhered to in at least one Section 7 consultation, and the BLM travel management plan will not be sufficient to protect the species from OHV impacts.

Our Response:

The Secretary of the Interior (Secretary) has the authority to manage oil and gas operations on Federal lands. The Secretary has delegated this authority to the Bureau of Land Management (BLM), which has issued onshore oil and gas operating regulations codified at 43 CFR part 3160. The operating regulations at 43 CFR 3164.1 authorize the BLM's Director to issue Onshore Oil and Gas Orders when necessary to implement and supplement the operating regulations. In addition 43 CFR 3162.5-1 that deals with environmental obligations provides that, “the operator shall comply with the pertinent orders of the authorized officer and other standards and procedures as set forth in the applicable laws, regulations, lease terms and conditions, and the approved drilling plan or subsequent operations plan.” BLM also has the authority to determine whether planned activities adhere to their policies and if they will adversely impact sensitive species. Therefore, BLM conservation measures are enforceable. We have determined in our PECE analysis that the conservation measures are likely to be implemented and effective. See the Ongoing and Future Conservation Efforts and PECE Analysis sections below for more information. Off-highway Vehicle use was not considered a threat to the species, but the 2014 CA includes provisions to ensure that it does not become a threat in the future (see Summary of Factors Affecting the Species, Off-highway Vehicle Use).

(107) Comment:

One commenter stated that our proposed rules did not adequately address representation, redundancy, or resiliency as was defined and considered in the listing of the Preble's Meadow Jumping Mouse (73 FR 39790).

Our Response:

We adequately address resiliency, redundancy and representation of the species in this document and in the 2014 CA conservation measures. We address resiliency of the species by conserving an adequate amount of the species habitat and populations through the establishment of conservation areas and limiting surface disturbance within these areas. We address the redundancy of the species by ensuring there are enough occurrences of the species throughout its range by establishing conservation areas in each conservation unit throughout the range of the species. We provide for the representation of the species by conserving its community associates through establishing conservation areas that encompass these associates. Our analyses of representation, resiliency and redundancy are specific to the species we are evaluating. Therefore, the details of our analysis for Graham's and White River beardtongues differ from the Preble's Meadow Jumping Mouse analysis.

(108) Comment:

One commenter stated that our proposed rules did not provide sufficient resiliency for either species as they should protect suitable unoccupied habitat on other slopes to allow for species' movement as a result of climate change.

Our Response:

We do not have predictive information detailing how Graham's and White River will respond to climate change in terms of what areas they may need as refugia. However, both the proposed critical habitat and the 2014 CA conservation areas include unoccupied habitat on slopes of various aspects that should allow the species to adapt to chosen microhabitats as the climate changes. As we are able to better understand both species responses to climate change, we can work with the conservation team to modify conservation areas to accommodate the species needs.

(109) Comment:

One commenter concluded that any analysis under our PECE policy should find that the 2014 CA is not adequate because it is not certain to be implemented and not certain to be effective.

Our response:

We concluded that the conservation measures in the 2014 CA have a high certainty of being implemented and effective. Our detailed PECE analysis is available for review at

http://www.regulations.gov

and

http://www.fws.gov/mountain-prairie/species/plants/2utahbeardtongues/.

See the Ongoing and Future Conservation Efforts and PECE Analysis sections below for more information.

(110) Comment:

One commenter stated that conservation areas that were established in 2014 CA but not evaluated in our proposed critical habitat rule should not be considered until they can be determined to be suitable for the species. Another commenter requested clarification on what information was used to establish the conservation area boundaries.

Our Response:

The conservation area boundaries were drawn based on plant occurrences, densities, and population sizes over the range for each species. We used a kernel density analysis in ArcGIS (Brunson 2013, entire) of known occurrences to identify areas of high density occurrences which have a lower probability of extinction over the next 50 years (McCaffery 2013a; entire). Conservation areas include the beardtongue species, insect and community associates, corridors between occur

This text is long and has been trimmed here. Open the source document for the complete record.