[Federal Register Volume 75, Number 120 (Wednesday, June 23, 2010)]
[Proposed Rules]
[Pages 35721-35746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15251]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2010-0015]
[MO 92210-0-0008-B2]
RIN 1018-AV83


Endangered and Threatened Wildlife and Plants; Listing Ipomopsis 
polyantha (Pagosa Skyrocket) as Endangered Throughout Its Range, and 
Listing Penstemon debilis (Parachute Beardtongue) and Phacelia 
submutica (DeBeque Phacelia) as Threatened Throughout Their Range

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list Ipomopsis polyantha (Pagosa skyrocket), a plant species from 
southwestern Colorado, as endangered throughout its range, and 
Penstemon debilis (Parachute beardtongue) and Phacelia submutica 
(DeBeque phacelia), two plant species from western Colorado, as 
threatened throughout their ranges under the Endangered Species Act of 
1973, as amended (Act). This proposal, if made final, would extend the 
Act's protections to these species throughout their ranges. The Service 
seeks data and comments from the public on this proposal.

DATES: We will consider comments received or postmarked on or before 
August 23, 2010. We must receive requests for public hearings, in 
writing, at the address shown in the FOR FURTHER INFORMATION CONTACT 
section by August 9, 2010.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments on Docket No. FWS-R6-
ES-2010-0015.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: [FWS-R6-ES-2010-0015]; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222, Arlington, VA 22203.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Patty Gelatt, Acting Western Colorado 
Supervisor, U.S. Fish and Wildlife Service, Ecological Services Field 
Office, 764 Horizon Drive, Building B, Grand Junction, CO 81506-3946; 
telephone 970-243-2778, extension 26; fax 970-245-6933. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from the public, other government agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule. We particularly seek comments 
concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to these species and regulations that may 
be addressing those threats;
    (2) Additional information concerning the range, distribution, and 
population sizes of these species, including the locations of any 
additional occurrences of these species;
    (3) Any information on the biological or ecological requirements of 
these species;
    (4) Current or planned activities in the areas occupied by these 
species and possible impacts of these activities on these species;
    (5) Which areas would be appropriate as critical habitat for these 
species and why they should be proposed for designation as critical 
habitat; and
    (6) The reasons why areas should or should not be designated as 
critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether the benefits of designation would outweigh 
threats to these species that designation could cause, such that the 
designation of critical habitat is prudent.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
consider comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If you provide 
personal identifying information in your hardcopy comments, you may 
request at the top of your document that we withhold this information 
from public review. However, we cannot guarantee that we will be able 
to do so. We will

[[Page 35722]]

post all hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Western Colorado Ecological Services Field Office 
(see FOR FURTHER INFORMATION CONTACT section).
    Final promulgation of the regulations concerning the listing of 
these species will take into consideration all comments and additional 
information that we receive, and may lead to a final regulation that 
differs from this proposal.

Species Information and Factors Affecting the Species

    Section 4 of the Act (16 U.S.C. 1533) and implementing regulations 
(50 CFR 424) set forth the procedures for adding species to the Federal 
Lists of Endangered and Threatened Wildlife and Plants. Under section 
4(a)(1) of the Act, a species may be determined to be endangered or 
threatened based on any of the following five factors: (A) The present 
or threatened destruction, modification, or curtailment of its habitat 
or range; (B) overutilization for commercial, recreational, scientific, 
or educational purposes; (C) disease or predation; (D) the inadequacy 
of existing regulatory mechanisms; or (E) other natural or manmade 
factors affecting its continued existence.
    Below is a species-by-species analysis of these five factors. The 
species are considered in the following order: Ipomopsis polyantha, 
Penstemon debilis, and Phacelia submutica.

Background--Ipomopsis polyantha

Previous Federal Actions

    We first identified Ipomopsis polyantha as a taxon under review in 
the 1983 Supplement to Review of Plant Taxa for Listing as Endangered 
or Threatened Species (48 FR 53640, November 28, 1983). In that 
document, we included the species as a Category 2 candidate, based on 
our evaluation at that time. Category 2 candidate species were formerly 
defined as ``taxa for which information now in the possession of the 
Service indicates that proposing to list the taxa as Endangered or 
Threatened species is possibly appropriate, but for which sufficient 
data on biological vulnerability and threat(s) are not currently known 
or on file to support proposed rules'' (48 FR 53641, November 28, 
1983). We published our decision to discontinue candidate categories 
and to restrict candidate status to those taxa for which we have 
sufficient information to support issuance of a proposed rule on 
December 5, 1996 (61 FR 64481), This resulted in the deletion of 
Ipomopsis polyantha from the list of candidate taxa for listing. Since 
1996, threats to the species have become more numerous and more 
widespread. We added the species to the list of candidates again in the 
2005Candidate Notice of Review (CNOR) (70 FR 24873, May 11, 2005) with 
a listing priority number (LPN) of 2. Candidates are taxa for which we 
have sufficient information on biological vulnerability and threats to 
support preparation of a listing proposal, but for which development of 
a listing regulation is precluded by other higher priority listing 
activities. Candidate species are assigned an LPN (1-12, with 1 being 
the highest priority) based on magnitude and immediacy of threats and 
taxonomic status. A listing priority of 2 reflects threats that are 
imminent and high in magnitude, as well as the taxonomic classification 
of I. polyantha as a full species. We published a complete description 
of our listing priority system in the Federal Register (48 FR 43098, 
September 21, 1983).

Species Information

    Ipomopsis polyantha is a rare plant endemic to shale outcrops in 
and around Pagosa Springs in Archuleta County, Colorado. Suitable 
habitat for the species is identified on about 191 acres (ac) (77 
hectares (ha)) on the east edge of town, and on about 23 ac (9 ha) 
approximately 10 miles (mi) (16 kilometers (km)) west of town. 
Approximately 9 percent of the suitable habitat is on land managed by 
the Bureau of Land Management (BLM) land, 12 percent on State and 
County highway rights-of-way (ROWs), 78 percent on private lands, and 
less than 1 percent on Pagosa Springs park land and county land 
(Colorado Natural Areas Program (CNAP) 2007, pp. 1-5; Lyon 2005, pp. 1-
5; Lyon 2006a, pp. 1-2; Lyon 2006b, p. 1).
    The Colorado Natural Heritage Program (CNHP) ranks Ipomopsis 
polyantha as critically imperiled globally (G1) and in the State of 
Colorado (S1) (CNHP 2006a, p. 1). The Nature Conservancy (TNC) and CNHP 
also developed a scorecard that ranks I. polyantha among the most 
threatened species in the State based on number of plants, quality of 
the plants and habitat, threats, and adequacy of protection (CNHP and 
TNC 2008, p. 102).
    Ipomopsis polyantha is in the Polemoniaceae (phlox) family and was 
originally described by Rydberg (1904, p. 634) as Gilia polyantha. 
Grant (1956, p. 353) moved the species into the genus Ipomopsis. Two 
varieties,G. polyantha var. brachysiphon and G. polyantha var. 
whitingii, were recognized by Kearney and Peebles (1943, p. 59). 
Currently available information indicates that I. polyantha is a 
distinct species (Porter and Johnson 2000; Porter et al. 2003 in 
Anderson 2004, p. 11). It is treated as such in the PLANTS database 
(United States Department of Agriculture (USDA)/Natural Resource 
Conservation Service (NRCS) 2003), and in the Integrated Taxonomic 
Information System (2001).
    Ipomopsis polyantha is an herbaceous biennial 12 to 24 inches (in.) 
(30 to 60 centimeters (cm)) tall, branched from near the base above the 
basal rosette of leaves. Deeply divided leaves with linear segments are 
scattered up the stem. Stems and flower clusters are covered with 
glandular hairs. Flower clusters are along the stem in the axils of the 
leaves as well as at the top of the stem. The white flowers are 0.4 in. 
(1 cm) long, with short corolla tubes 0.18 to 0.26 in. (0.45 to 0.65 
cm) long, and flaring corolla lobes flecked with purple dots (Anderson 
1988, p. 3). These dots are often so dense that they give the flower a 
pinkish or purplish hue. The stamens extend noticeably beyond the 
flower tube, and the pollen is blue (Grant 1956, p. 353), changing to 
yellow as it matures (Collins 1995, p. 34). First-year plants form 
basal rosettes of leaves. These rosettes produce flowering stalks 
during the next growing season, or they may persist for more than 1 
year without flowering, until they get enough moisture to flower Plants 
produce abundant fruits and seeds, but have no known mechanism for long 
distance dispersal (Collins 1995, pp. 111-112). After seeds are mature, 
the plants dry up and die.
    Pollination by bees is the most common means of reproduction for 
Ipomopsis polyantha, and the primary pollinators are a honey bee (Apis 
mellifera), metallic green bee (Augochlorella spp.), bumble bee (Bombus 
spp.), and digger bee (Anthophora spp.) (Collins 1995, pp. 71-72).
    Ipomopsis polyantha is limited to Pagosa-Winifred soils derived 
from Mancos Shale. The soil pH is nearly neutral to slightly alkaline 
(6.6 to 8.4). The elevation range is 6,800 to 7,300 feet (ft) (2,072 to 
2,225 meters (m)). Plants occur in discontinuous colonies as a pioneer 
species on open shale or as a climax species along the edge of 
ponderosa pine/juniper/oak forested areas. In 1988, Anderson (p. 7) 
reported

[[Page 35723]]

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

 Table 1. Occupied and Unsurveyed Suitable Habitat for Ipomopsis polyantha (CNAP 2007, pp. 1-5; Lyon 2005, p. 1;
                            Lyon 2006a, p. 1-2; Mayo 2008a, p. 1; CNHP 2008a, ID 228)
----------------------------------------------------------------------------------------------------------------
                                                                                         Flowering
                Occurrence                          Land Ownership           ac (ha)       Plants      Rosettes
----------------------------------------------------------------------------------------------------------------
Pagosa Springs including Mill Creek         State ROW                         19 (7.7)        3,029        3,083
----------------------------------------------------------------------------------------------------------------
                                            County ROW                         3 (1.2)          126           NA
----------------------------------------------------------------------------------------------------------------
                                            Archuleta County                   1 (0.4)          280           NA
 
                                            Town of Pagosa Springs             1 (0.4)            3           15
 
                                            Private (suitable)                184 (74)   Unsurveyed           NA
 
                                            Private Corporation                3 (1.2)      156,126      173,189
----------------------------------------------------------------------------------------------------------------
Subtotals                                                                     211 (85)      159,564      176,287
----------------------------------------------------------------------------------------------------------------
Dyke                                        State ROW                          3 (1.2)          141          176
 
                                            BLM                                 20 (8)           88          164
----------------------------------------------------------------------------------------------------------------
Subtotals                                                                       23 (9)          229          340
----------------------------------------------------------------------------------------------------------------
Totals                                      All                               234 (94)      159,793      176,627
----------------------------------------------------------------------------------------------------------------

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

[[Page 35724]]

    The Pagosa Springs occurrence of Ipomopsis polyantha is southeast 
of the town along both sides of US 84. Occupied habitat extends 
southward on the highway ROW for 3 mi (4.8 km) from the intersection 
with US 160, and on private lands on both sides of the highway within 
0.25 to 1.2 mi (0.4 to 1.9 km). In 1985, the estimated number of 
flowering plants in this occurrence was 2,000 (Anderson 1988, p. 8). 
During 2005-2006, 3,029 flowering plants and 3,083 rosettes were 
counted on about 19 ac (7.7 ha) of highway ROW and immediately adjacent 
private lands (CNAP 2007, pp. 1-5; Lyon 2005, p. 1; Lyon 2006a, pp. 1-
2). In 2005, an additional 156,126 plants and 173,189 rosettes were 
found on a 3-ac (1.2-ha) private land site, which was a high density of 
plants on a site where no plants had been observed in previous years 
(Lyon 2005, pp. 3-4; Lyon 2007b, p. 1). The plants were found on a 
hillside of Mancos Shale about 7 years after it was bladed, and are 
still growing there because the ground has not been disturbed during 
the growing season (Lyon 2007b, p. 2). I. polyantha quickly colonizes 
unvegetated Mancos Shale near a seed source. The number of flowering 
plants that appear in subsequent years depends on seed production and 
the survival of rosettes that are not outcompeted by other species or 
destroyed during ground disturbance.
    In addition to the surveyed plants and rosettes, many flowering 
Ipomopsis polyantha plants have been seen, but not counted, on private 
residential/agricultural parcels along US 84 (Lyon 2006a, p. 1). An 
estimated 184 ac (74 ha) of unsurveyed suitable habitat on private 
lands exist within the Pagosa Springs occurrence.
    The Dyke occurrence includes 0.5 mi (0.8 km) of highway ROW on both 
sides of US 160, adjacent private land, and about half of a 40-ac (16-
ha) BLM parcel on the north side. On both of the ROWs and adjacent 
pastures, more than 500 flowering plants were estimated in 1985 
(Anderson 1988, p. 10). In 1991, about 250 plants were counted in 
unused pasture on the south side, but no plants were found in 
subsequent years after cattle were returned to the pasture (Collins 
1995, pp. 111-112). The number of flowering plants and rosettes on the 
US 160 ROW have fluctuated each year between 2005 and 2008. On the 
north side ROW, the number of flowering plants and rosettes declined by 
80 percent over the 4 years, to 9 and 8 respectively. On the south side 
ROW, flowering plants increased 176 percent (to 141 plants), and 
rosettes declined 9 percent (to 179 rosettes) (Mayo 2008a, p. 1). The 
approximately 20-ac (8-ha) BLM parcel is the only federally managed 
habitat for the species. There, in 2006, 88 flowering plants and 164 
rosettes were found in clearings among ponderosa pine and shrubs (CNAP 
2007, p. 2).
    In addition to these extant occurrences, about 13 plants and 18 
rosettes were found on a roadside in a residential area north of Pagosa 
Springs in 2005. We do not consider this occurrence as extant, because 
no plants have been found there since 2005. Surveys of roadsides and 
private lands in this vicinity, and on additional potential habitat 
north of town, have not detected any individuals of the species (Lyon 
2005, p. 3).
    In 2004, the total estimate of flowering plants throughout the 
entire range of the species was 2,246 to 10,526 (Anderson 2004, p. 40). 
Plant surveys from 2005 to 2007 document dramatic increases in the 
number of flowering individuals and rosettes within the Pagosa Springs 
occurrence at two sites on private land and on the US 84 ROW (CNAP 
2007, pp. 1-2). Currently, the total estimate of flowering plants is 
159,793 (see Table 1 above). This increase is primarily attributed to 
the plants surveyed in 2005 and 2006 on the 3-ac (1.2-ha) private land 
site in the Pagosa Springs occurrence. The rapid appearance of such a 
dense patch of plants illustrates the specie's ability to colonize 
barren Mancos Shale soil, and demonstrates the reproductive success of 
the species; however, the sites where they grow are vulnerable to 
habitat destruction. The trend in the species' status since 1988 is one 
of fluctuating population size that is typical of biennial species, 
combined with the loss of some plants due to development.

Summary of Factors Affecting Ipomopsis polyantha

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    Ipomopsis polyantha is threatened with destruction of plants and 
habitat due to commercial, residential, and agricultural property 
development, and associated new utility installations and access roads. 
We have documented recent losses of habitat and individuals at six 
sites within the Pagosa Springs occurrence of the species, as described 
in more detail below.
    Within the Pagosa Springs occurrence, a residential and 
agricultural development of about a dozen 35-ac (14-ha) parcels was 
built prior to 2005 on occupied habitat east of US 84 (Archuleta County 
Assessor 2008, p. 1). In 2005, when most residences were new, about 782 
flowering plants were counted in meadows and along the fences and 
access roads (Lyon 2005, pp. 1-2). By 2008, an increased number of 
horses were pastured in the meadows, roadsides and driveways were 
graded or widened, and few plants could be found as a result (Mayo 
2008b, p. 1). This information indicates that Ipomopsis polyantha 
plants are vulnerable to grazing and road improvements, and habitat can 
be modified to exclude plants in as few as 3 years. In 2006, at another 
location along US 84, a private landowner mowed several hundred feet of 
occupied habitat on the highway ROW (Lyon 2006a, p. 1). No plants were 
found at this site from 2006 to 2008, indicating that mowing destroys 
plants and halts reproduction. In 2005, dense patches of flowering 
plants were noted, from across the fence, in a privately owned meadow 
along US 84. In 2007, a new home was built, and the meadow was mowed; 
no plants could be seen at the same site in 2008 (Mayo 2008b, p. 2), 
again indicating that mowing destroys plants and inhibits reproduction. 
During 2005 and 2006, a sewer line installation on the US 84 ROW 
resulted in the loss of about 498 plants and 541 rosettes, and 
modification of about 1,473 ft (449 m) of roadside habitat (Mayo 2008c, 
p. 8). The Colorado Department of Transportation (CDOT) and Archuleta 
County consulted with us, and agreed on avoidance measures for this 
project, but contractors failed to follow the protocol (Mayo 2008c, pp. 
1-4). In 2008, only a few flowering plants and rosettes were found at 
this site; all of the plants were in one spot near plants on an 
adjacent property not disturbed by the sewer line project (Mayo 2008c, 
p. 8). This incident demonstrates that I. polyantha cannot quickly 
recover from soil disturbance.
    Utility installations and construction activities can eliminate 
habitat and destroy Ipomopsis polyantha. As a result of careful 
planning, in 2007, power line maintenance was completed within occupied 
habitat in the Pagosa Springs occurrence with negligible damage to 
adult plants. Rosettes in the path of maintenance actions were 
transplanted to suitable habitat in the town park. The 278 transplants 
survived the winter and produced about 27 flowering plants. However, no 
surviving rosettes could be relocated in the fall (Coe 2007, pp. 2-3). 
A second attempt at transplanting rosettes to save them from 
destruction during utility installations also has not been effective

[[Page 35725]]

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

[[Page 35726]]

the next 5 to 10 years will likely: (1) Impact over 2,000 ac (809 ha) 
of potential habitat; (2) potentially eliminate 167 of the 214 ac (68 
of 87 ha) of existing occupied and suitable habitat on private lands; 
and (3) potentially eliminate about 34 percent of the highway ROW 
(occupied) habitat. Combined, these impacts would relegate the species 
primarily to small, fragmented portions of highway ROWs and a few, 
small, lightly-used private pastures putting the species in danger of 
extinction.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Activities resulting in overutilization of Ipomopsis polyantha 
plants for commercial, recreational, scientific, or educational 
purposes are not known to exist. Therefore, this factor is not 
addressed in this proposal.

C. Disease or Predation

Disease
    Disease is not known to affect Ipomopsis polyantha. Therefore, 
disease is not addressed in this proposal.
Predation
    This species is threatened by destruction of flowering plants, 
rosettes, and seeds due to concentrated livestock disturbance and some 
herbivory. Observations of the ``fence line effect''--healthy plants 
outside the fence and impacted plants inside the fence--at several 
locations on private land used for cattle and horse grazing indicate 
that Ipomopsis polyantha does not tolerate intensive livestock grazing 
(Anderson 2004, p. 30). For example, grazing by horses at a 
residential/agricultural development within the Pagosa Springs 
occurrence in 2005 resulted in few I. polyantha plants 3 years later 
(Mayo 2008b, p. 1). Over-the-fence observations from seven locations 
(pastures) in 2009 found few or no plants in the three heavily grazed 
pastures and numerous plants in the adjacent pastures with light or no 
grazing (Glenne 2010, pp. 1-3). We have no data to indicate whether the 
plant destruction results from herbivory or from trampling. I. 
polyantha is not found in heavily grazed pastures, but occurrences have 
been observed in lightly grazed horse pastures and abandoned pastures 
(CNAP 2007, p. 6). Plants could possibly recolonize a pasture if 
livestock numbers were reduced sufficiently and the seed bank was still 
viable, or if there was a seed source nearby, such as on the ungrazed 
side of a fence. Indications are that the species may be compatible 
with light grazing, but the level of impact and the threshold of 
species' tolerance have not been studied. Evidence indicates that few 
plants persist in areas of continual grazing (Collins 1995, pp. 107, 
111, 112). We determined that destruction of flowering plants, 
rosettes, and seeds due to heavy livestock use is a significant and 
imminent threat to I. polyantha.
D. The Inadequacy of Existing Regulatory Mechanisms
Local Laws and Regulations
    City and county ordinances have the potential to affect Ipomopsis 
polyantha and its habitats. Zoning that protects open space can retain 
suitable habitat, and zoning that allows commercial development can 
destroy or fragment habitat. We know of no city or county ordinances 
that provide for protection or conservation of I. polyantha or its 
habitat. Archuleta County road maintenance crews refrain from mowing or 
broadcast spraying ROWs within the range of Ipomopsis polyantha 
voluntarily, that is, without the mandate or support of regulations. 
However, there is no law, regulation, or policy requiring them to do 
so.
    New annexation of 2,018 ac (817 ha) into the Town of Pagosa Springs 
will change land use from 35-ac (14-ha) agricultural parcels to 
commercial and small lot residential, with anticipated adverse impacts 
to the Pagosa Springs occurrence of I. polyantha. This land use 
conversion, as described in Factor A above, is the most significant 
threat to the species, because development planned for the next 5 to 10 
years will likely impact all known potential habitat and 17 of 25 ROW 
acres (6.9 of 10 ha), and relegate the species to private residential 
areas and small, fragmented portions of highway ROWs.
State Laws and Regulations
    No State regulations protect rare plant species in Colorado. 
Ipomopsis polyantha is classified by CNHP as a G1 and S1 species, which 
means it is critically imperiled across its entire range and within the 
State of Colorado (CNHP 2006a, p. 1). The CDOT has drafted best 
management practices for ROWs within I. polyantha habitat in 
collaboration with the Service (Peterson 2008, p. 1). In 2006, 
voluntary measures to minimize impacts to plants from a sewer line 
installation along US 84 were recommended by CDOT, but not implemented 
by the contractors (Mayo 2008c, pp. 1-4).
Federal Laws and Regulations
    Ipomopsis polyantha is on the sensitive species lists for the U.S. 
Forest Service (USFS) and the BLM (USFS 2009, p. 6; BLM 2008b, p. 47). 
Occupied habitat has not been found on USFS land. In 2006, we learned 
that the Dyke occurrence extends onto 20 ac (8 ha) of BLM land (Lyon 
2007b, pp. 3, 12, 13); 88 plants and 164 rosettes were found there in 
2007 (CNAP 2007, p. 2). This BLM parcel was withdrawn from a proposed 
land exchange so that the plant habitat would remain under Federal 
management (Brinton 2009, pers. comm.; Lyon 2007b, p. 3). The species 
has no Federal regulatory protection for approximately 91 percent of 
the total known occupied and suitable habitat. It occurs mostly on 
State and private land (see Table 1 above), and development of these 
areas will likely require no Federal permit or other authorization. 
Therefore, projects that affect it are usually not analyzed under the 
National Environmental Policy Act (NEPA)(42 U.S.C. 4321 et seq.).
    We determined that the inadequacy of existing regulatory mechanisms 
is a significant and imminent threat to Ipomopsis polyantha, because 91 
percent of the known range of the species is on State and private lands 
that carry no protective regulations to ameliorate activities that will 
impact the species.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    The adaptation of Ipomopsis polyantha to Pagosa-Winifred soils 
derived from Mancos Shale limits it to about 4 square mi (10.4 square 
km) within a 13-mi (21-km) range of fragmented habitat on outcrops of 
Mancos Shale. The species has specific physiological requirements for 
germination and growth that may prevent its spread to other locations 
(Anderson 2004, pp. 23-24). In greenhouse trials, seeds will germinate 
and grow on other soils, but they grow much faster on Mancos Shale 
soils (Collins 1995, p. 114). Faster growth may give I. polyantha a 
competitive advantage on relatively barren Mancos shale that it lacks 
on other soils where its smaller seedlings have more competition from 
other plants for nutrients and water. The species produces more seed 
when it is cross-pollinated (Anderson 2004, p. 23); therefore, existing 
and foreseeable fragmentation of habitat may cause gene flow to be 
obstructed. Pollinator-mediated pollen dispersal is typically limited 
to the foraging distances of pollinators, and no bee species is 
expected to travel more than 1 mi (1.6 km) to forage (Tepedino 2009, p. 
11). Thus, it is likely that the occurrence of

[[Page 35727]]

about 191 plants west of Pagosa Springs is genetically isolated from 
the other occurrence several miles (kilometers) away. Spatially 
isolated plant populations are at higher risk of extinction due to 
inbreeding depression, loss of genetic heterogeneity, and reduced 
dispersal rates (Silvertown and Charlesworth 2001, p. 185).
    Ipomopsis polyantha shows great differences in plant numbers from 
year to year, probably because the plants are biennial and grow from 
seed. This trait makes them more vulnerable than perennials to changes 
in environment, including timing and amount of moisture, and length of 
time since disturbance. With increased time after disturbance, 
competition from other plants, both native and nonnative, increases 
(CNAP 2008a, p. 4). As a biennial species, I. polyantha also may be 
vulnerable to prolonged drought. During drought years, seeds may not 
germinate and plants may remain as rosettes without flowering or 
producing a new crop of seeds.
    Climate change could potentially impact Ipomopsis polyantha. 
Localized projections indicate the southwest may experience the 
greatest temperature increase of any area in the lower 48 States (IPCC 
2007, p. 30). A 10- to 30-percent decrease in precipitation in mid-
latitude western North America is projected by the year 2050, based on 
an ensemble of 12 climate models (Milly et al. 2005, p. 1). Climate 
modeling at this time has not been refined to the level that we can 
predict the amount of temperature and precipitation change within the 
limited range of I. polyantha. Therefore, this analysis is speculative 
based on what the data indicate at this time. When plant populations 
are impacted by reduced reproduction during drought years, they may 
require several years to recover. Climate change may exacerbate the 
frequency and intensity of droughts in this area and result in reduced 
species' viability as the dry years become more common. As described 
above, I. polyantha is sensitive to the timing and amount of moisture 
due to its biennial life history. Thus, if climate change results in 
local drying, the species could experience a reduction in its 
reproductive output.
    Recent analyses of long-term data sets show accelerating rates of 
climate change over the past two or three decades, indicating that the 
extension of species' geographic range boundaries towards the poles or 
to higher elevations by progressive establishment of new local 
occurences will become increasingly apparent in the short term (Hughes 
2000, p. 60). The limited geographic range of the Mancos Shale 
substrate that underlies the entire Ipomopsis polyantha habitat likely 
limits the ability of the species to adapt by shifting occurrences in 
response to climatic conditions.
    We determined that the natural and human-caused factors of specific 
soil and germination requirements, fragmented habitat, effects of 
drought and climate change, and lack of proven methods for propagation 
present an imminent and moderate degree of threat to Ipomopsis 
polyantha across the entire range of the species.

Background--Penstemon debilis

Previous Federal Actions

    We first included Penstemon debilis as a category 2 candidate 
species in the February 21, 1990, Review of Plant Taxa for Listing as 
Endangered or Threatened Species (55 FR 6184). Category 2 candidate 
species were defined as ``[t]axa for which there is some evidence of 
vulnerability, but for which there are not enough data to support 
listing proposals at this time'' (55 FR 6185, February 21, 1990). In 
1996, we abandoned the use of numerical category designations and 
changed the status of P. debilis to a candidate under the current 
definition. We published four CNOR lists between 1996 and 2004, and P. 
debilis remained a candidate species with a LPN of 5 on each (62 FR 
49398, September 19, 1997; 64 FR 57534, October 25, 1999; 66 FR 54808, 
October 30, 2001; 67 FR 40657, June 13, 2002). A LPN of 5 is assigned 
to species with non-imminent threats of a high magnitude.
    On March 15, 2004, the Center for Native Ecosystems (CNE) and the 
Colorado Native Plant Society petitioned us to list Penstemon debilis 
(CNE 2004a, p. 1). We considered the information provided in their 
petition when we prepared the 2004 CNOR. In the 2004 CNOR, P. debilis 
remained a candidate species with a listing priority of 5 (69 FR 24876, 
May 4, 2004).
    On May 11, 2004, we received a petition from the Center for 
Biological Diversity (CBD) to list 225 species we previously had 
identified as candidates for listing, including Penstemon debilis (CBD 
2004, p. 6). Under requirements in section 4(b)(3)(B) of the Act, the 
CNOR and Notice of Findings on Resubmitted Petitions published on May 
11, 2005 (70 FR 24870), raised the LPN of P. debilis from 5 to 2 but 
also included a finding that the immediate issuance of a proposed 
listing rule and the timely promulgation of a final rule for each of 
225 petitioned species, including P. debilis, was warranted but 
precluded by higher priority listing actions, and that expeditious 
progress was being made to add qualified species to the Lists (70 FR 
24870, May 11, 2005).
    On November 15, 2004, the CNE issued a 60-day notice of intent to 
sue for violation of section (4)(b)(3)(A) of the Act with respect to 
the petition to list Penstemon debilis (CNE 2004b, pp. 1-2). On January 
25, 2005, Biodiversity Conservation Alliance and seven other entities 
filed an amended complaint regarding our failure to list P. debilis and 
five other species. As part of a settlement agreement, plaintiffs 
withdrew their lawsuit regarding P. debilis.
    In the 2005 CNOR (70 FR 24870), as stated above, the listing 
priority number for Penstemon debilis was changed from 5 to 2 based on 
an increase in the intensity of energy exploration along the Roan 
Plateau escarpment, making the threats to the species imminent (70 FR 
24870, May 11, 2005). A listing priority of 2 represents threats that 
are both imminent and high in magnitude. CNOR lists published in 2006 
and 2007 maintained P. debilis as a candidate species with a listing 
priority of 2 (71 FR 53756, September 12, 2006; 72 FR 69034, December 
6, 2007).
    In each assessment since its recognition as a candidate species in 
1996, we determined that publication of a proposed rule to list the 
species was precluded by our work on higher priority listing actions. 
However, in 2008, we received funding to initiate the proposal to list 
Penstemon debilis.

Species Information

    Penstemon debilis is a rare plant, endemic to oil shale outcrops on 
the Roan Plateau escarpment in Garfield County, Colorado. This species 
is known by the common names Parachute beardtongue and Parachute 
penstemon. P. debilis is classified by the CNHP as a G1 and S1 species, 
which means it is critically imperiled across its entire range and 
within the State of Colorado (CNHP 2008b, p. 14). The total estimated 
number of known plants is approximately 4,000 individuals (CNHP 2006b, 
p. 1; CNHP 2009a, p. 1; CNHP 2009b, p. 1; CNHP 2009c, p. 1; CNHP 2009d, 
p. 2). Approximately 82 percent of the known plants are on private land 
owned by a natural gas and oil shale production company. Most of the 
remaining 18 percent occur in one occurrence on BLM land that was 
recently leased under a new Resource Management Plan (RMP) amendment 
(BLM 2008a, Record of Decision (ROD) p. 2). In recent years, energy 
development has increased in this area on both private and Federal 
lands.

[[Page 35728]]

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

[[Page 35729]]



                      Table 2. Current and Historically Known Penstemon debilis Occurrences
----------------------------------------------------------------------------------------------------------------
                                                          of
           Occurrence                  Viability            Plants              ac (ha)         Land Ownership
----------------------------------------------------------------------------------------------------------------
Mt. Callahan Natural Area         Excellent           2,100-2,240         32 (12.9)           Private
----------------------------------------------------------------------------------------------------------------
Anvil Points Road                 Good                700                 5 (2)               BLM
----------------------------------------------------------------------------------------------------------------
Mount Logan Mine                  Good                533(50 on BLM)      2 (0.8)             Private and BLM
----------------------------------------------------------------------------------------------------------------
Mount Callahan Ridge              Good                650                 4 (1.6)             Private
----------------------------------------------------------------------------------------------------------------
Mount Logan Road                  Poor                3                   7 (2.8)             BLM
----------------------------------------------------------------------------------------------------------------
Anvil Points                      Poor                0                   6 (2.4)             BLM
----------------------------------------------------------------------------------------------------------------
Smith Gulch                       Unrated             12                  not reported        BLM
----------------------------------------------------------------------------------------------------------------
                                  Total               3,998 - 4,138       56 (22.7)           ..................
----------------------------------------------------------------------------------------------------------------

    The total estimated number of Penstemon debilis in the wild is 
currently 3,998 to 4,138 individuals. The occurrences on BLM land 
represent about 18 percent of the total plants counted and estimated. 
An energy development company owns land that contains approximately 82 
percent of the total plants. We have no information to indicate an 
overall species trend.
Summary of Factors Affecting Penstemon debilis

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    Penstemon debilis habitat is threatened by energy development and 
associated impacts. Of the four known viable occurrences (Mount 
Callahan Natural Area, Anvil Points Road, Mount Logan Mine, Mount 
Callahan Ridge), all but the Anvil Points Road occurrence are on lands 
wholly or partially owned by an energy development company. All four 
viable occurrences, which exist on the Roan Plateau, face ongoing or 
potential threats, including: oil and gas development, oil shale 
extraction and mine reclamation, and road maintenance and vehicle 
access through occurrences.
    The Piceance Basin, including federal and private lands surrounding 
the Roan Plateau, has experienced a boom in natural gas production in 
recent years. The BLM projects that around 3,916 billion cubic feet of 
natural gas will be developed over the next 20 years from the portion 
of the Roan Plateau that was addressed in the new RMP amendment (CNE 
2004a, p. 44). Oil and gas exploration and development continues to 
increase each year on and around the Roan Plateau. In 2003, 566 new 
wells were permitted in Garfield County: 796 in 2004; 1,508 in 2005 
(Colorado Oil and Gas Conservation Commission (COGCC 2006, p. 1); 1,844 
in 2006; 2,550 in 2007 (COGCC 2008, p. 1); and 2,888 in 2008 (COGCC 
2009a, p. 1). Because of a decrease in natural gas prices, new well 
permits decreased in 2009 to 743 (Webb 2009, p. 1), as of June 3, 2009 
(COGCC 2009a, p. 1). This number is down from the 1,029 wells permitted 
by the same time in 2008, but is still higher than the 566 wells 
permitted in Garfield county in all of 2003 (COGCC 2008, p. 1).
    Energy exploration and development includes construction of new 
unpaved roads, well pads, disposal pits, evaporation ponds, and 
pipeline corridors, as well as cross country travel by employees. Each 
of these actions has the potential to cause direct impacts such as 
plant removal and trampling, and indirect impacts to Penstemon debilis 
such as dust deposition and loss of habitat for pollinators. The 
ramifications of direct impacts are easily assessed if witnessed. Plant 
removal, contact with herbicide or ice-melting chemicals, and trampling 
can cause death of plants. Because P. debilis was unknown as a species 
until 1987, and most of the occurrences are on private land or in 
remote locations on public land, the impacts may go unnoticed. For 
example, impacts to the Mount Logan Mine occurrence were unknown until 
the occurrence was discovered in 2005; even after discovery, further 
mine-related impacts occurred because the remote location of the mine 
made it difficult for BLM to manage the occurrence (CNHP 2009b, p. 1; 
Ewing 2009a, p. 4).
    Indirect effects to Penstemon debilis from energy exploration are 
less easily assessed. Road traffic on unpaved roads increases dust 
emissions in previously stable surfaces (Reynolds et al. 2001, p. 
7126). For every vehicle traveling one mile (1.6 km) of unpaved roadway 
once a day, every day for a year, approximately 2.5 tons of dust are 
deposited along a 1,000-foot (305-m) corridor centered on the road 
(Sanders 2008, p. 20). Vascular plants can be greatly affected within 
the zone of maximum dust fall (i.e., the first 1000 ft (305 m) from the 
road) (Everett 1980, p. 128). Excessive dust may affect photosynthesis, 
affect gas and water exchange, clog plant pores, and increase leaf 
temperature leading to decreased plant vigor and growth (Ferguson et 
al. 1999, p. 2; Sharifi et al. 1997, p. 842). All of the viable 
occurrences of P. debilis are within 300 ft (91 m) of roads. Further 
energy development would likely increase road density and traffic 
volume.
    Other indirect impacts can occur due to a loss of pollinator 
habitat. Penstemon debilis requires an insect pollinator to reproduce 
(McMullen 1998, p. iii). McMullen (1998) concluded that pollinators for 
P. debilis were generalists and were not limiting at that time (prior 
to the energy boom). However, Tepedino (2009) described how the 
pollination biology of another Piceance Basin rare plant (Physaria 
obcordata) is being impacted by energy development. He described that 
any energy development that reduces the general level of available 
floral vegetation has a detrimental effect on pollinators' ability to 
reproduce, subsequently resulting in fewer pollinators and reduced 
ability of the dependent plant to reproduce (Tepedino 2009, pp. 16-17).
    A large parcel of land including habitat occupied by the Anvil 
Points Road occurrence was offered and sold for oil and gas leasing 
under the BLM August 2008 lease sale (DeYoung 2008b, p. 1; BLM 2008b, 
p. 1; Ewing 2008a, p. 7). This lease is currently being contested in 
court. Increased energy exploration in the Anvil Points Road area may 
increase maintenance and vehicle access on the unstable road that

[[Page 35730]]

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

[[Page 35731]]

generation, loss of pollinator habitat, and inadvertent trampling by 
employees and contractors. Monitoring of the occurrence, in connection 
to the energy development, has resulted in trampling of individual 
plants by people collecting the data (Ewing 2009a, p. 1).
    The Smith Gulch occurrence of approximately 12 plants was 
discovered on BLM lands below Mount Callahan during surveys for a 
proposed oil and gas development project in June 2009 (Graham 2009b, p. 
1). Two well pads, and corresponding roads and pipelines, are proposed 
for this area (Graham 2009b, p. 1).
    The BLM develops a Reasonably Foreseeable Development scenario 
(RFD) to project the level of oil and gas activity that can be expected 
to occur. The RFD is intended as a technical and scientific 
approximation of anticipated levels of oil and gas development during 
the planning timeframe (BLM 2006, p. 4-2). It is not intended to define 
specific numbers and locations of wells and pads. An RFD for oil and 
gas is a long-term projection of oil and gas exploration, development, 
production, and reclamation activity within the lands and minerals 
managed by the BLM Field Office (BLM 2005b, p. 2). The RFD is a 
technical report typically referenced in the NEPA document for the RMP 
(BLM 2005b, p. 2).
    The RFD for the Glenwood Springs BLM Field Office, Roan Plateau 
Planning Area, which contains the Anvil Points Road and Anvil Points 
Penstemon debilis occurrences, used 20 years as the foreseeable 
development timeframe. Based on the RFD, the Roan Environmental Impact 
Statement (EIS) Proposed Plan projected approximately 669 pads, 3,691 
wells, 2,791 ac (1,129 ha) of long-term disturbance, and 1,624 ac (657 
ha) of short-term disturbance in the Roan Planning Area (BLM 2006, p. 
4-11). The other occurrences located on BLM land (Mount Logan Mine and 
Mount Logan Road) are within the BLM Grand Junction Field Office, which 
is currently in the process of developing a new RFD. The current RFD 
was developed in 1987, and forecasted 50 wells a year for a 20-year 
timeframe (Anderson 2008, p. 1). No RFD projection is available for the 
lands containing the Mount Callahan Natural Area, Mount Callahan Ridge, 
and private portion of the Mount Logan Mine occurrences, because they 
are on private lands with privately owned minerals.
    Penstemon debilis is not protected by Federal regulation for about 
82 percent of the total known and estimated plants because they are on 
private land. The remaining 18 percent of plants are on BLM lands. The 
BLM controls access to the Anvil Points Mine (containing the Anvil 
Points Road occurrence) with a gate. This gate is often left open, 
allowing public access to the plant occurrence Access to the other BLM 
occurrence (the Mount Logan Road occurrence) is controlled by a guard 
station. Approximately 300 trucks, associated with energy development, 
drive by this occurrence every day after checking with the guard (Mayo 
2005, p. 1).
    In summary, three of the four viable occurrences (Mount Callahan 
Natural Area, Mount Logan Mine, and Mount Callahan Ridge) are on lands 
owned wholly or partially by an energy development company. Some 
individuals of the fourth occurrence (Anvil Points Road), on BLM land, 
are subject to transplantation or destruction as a result of an ongoing 
mine restoration project and road maintenance. Over the past 6 years, 
oil and gas exploration and production has increased substantially in 
the area containing the habitat for Penstemon debilis making it likely 
that the species will become endangered in the foreseeable future. The 
pace of new development slowed in 2009; however, it is still far above 
pre-2004 levels. P. debilis grows on steep shifting slopes, and roads 
through P. debilis habitat are unstable and require frequent 
maintenance, which often destroys plants. Plants seem to be able to 
recolonize their habitat after disturbance; however, recolonization is 
slow, and would not be able to keep pace with rapid development. For 
these reasons we consider destruction and modification of the species' 
habitat for natural gas production, oil shale mining, mine reclamation, 
road maintenance, and associated impacts resulting from increased 
vehicle access to the occurrences, a moderate but immediate threat to 
P. debilis.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Overutilization for commercial, recreational, scientific, or 
educational purposes is not known to be a threat to Penstemon debilis. 
Therefore, this factor is not addressed in this proposal.

C. Disease or Predation

    Seed predation of Penstemon debilis by small mammals has shown to 
be very low (McMullen 1998, pp. 39-40). Grazing, predation, and disease 
are not known to be a threat to P. debilis. Therefore, this factor is 
not addressed in this proposal.

D. The Inadequacy of Existing Regulatory Mechanisms

Local Laws and Regulations
    Approximately 82 percent of Penstemon debilis occupied habitat 
occurs on private lands. We are not aware of any city or county 
ordinances or zoning that provide for protection or conservation of P. 
debilis or its habitat.
State Laws and Regulations
    No State laws or regulations protect rare plant species in Colorado 
on private land or otherwise. The Mount Callahan Natural Area and Mount 
Callahan Ridge occurrences, including approximately 82 percent of total 
known Penstemon debilis plants, occur on land owned by an energy 
development company. With the cooperation of the landowner, the CNAP, a 
State agency, has designated the area of Mount Callahan (referred to 
throughout the document as the Mount Callahan Natural Area occurrence) 
and Mount Callahan Ridge occurrences as Natural Areas (Kurzel 2008, 
pers. comm.; CNAP 1987, pp. 1-7;, CNAP 2008a, pp. 1-7;, Webb 2008, p. 
1) Through these designations, the landowner has agreed to develop the 
natural gas pads in a way that should minimize impacts to the P. 
debilis occurrences (Ewing 2008a, pp. 1-2). The agreements include 
conservation measures such as stormwater management and a noxious weeds 
management plan in order to minimize development impacts to the species 
(CNAP 2008b, pp. 1-4; CNAP 2008c, pp. 1-4). The CNAP has been very 
successful in garnering landowner participation in conservation of rare 
species in Colorado. However, natural area agreements are voluntary and 
can be terminated at any time by either party with a 90-day written 
notice. For this reason, and because no legally binding conservation 
easements or candidate conservation agreements protect any of the 
occurrences on private land, we have concluded that the Natural Area 
designation alone does not constitute an adequate regulatory mechanism 
to conserve P. debilis. We consider inadequate State laws and 
regulations a significant and immediate threat to this species, because 
the laws do not ameliorate the threats to the species.
Federal Laws and Regulations
    The Federal Land Policy and Management Act (FLPMA) (43 U.S.C. 1701 
et seq.) directs BLM, as part of the land use planning process, to 
``give priority to the designation and protection of areas of critical 
environmental concern'' (Sec. 202(c)(3)).

[[Page 35732]]

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

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    The Anvil Points occurrence, which formerly included several 
hundred plants on BLM land, has been reduced to zero plants since 1994 
for unknown reasons (CNHP 2009e, p. 1). It appears that the decline of 
this occurrence was a result of natural processes including competition 
by surrounding native vegetation, which includes Chrysothamnus 
viscidiflorus (yellow rabbitbrush) (DeYoung 2008a, p. 1; CNHP 2009e, p. 
2). New Penstemon debilis plants grown off site from seeds were 
introduced but declined over several years (CNHP 2009e, p. 2). 
Monitoring failed to show a cause for the disappearance of P. debilis 
(DeYoung 2008a, p. 1).
    Penstemon debilis population sizes are small, and the smaller the 
population, the more likely extinction is in any given period of time 
(Shaffer 1987, p. 70). All occurrences of P. debilis grow on a 17-mi 
(27-km) stretch of the rim of the Roan Plateau in

[[Page 35733]]

Garfield County, Colorado (Ewing 2008a, p. 7). The two largest 
occurrences are within 2 mi (3 km) of each other (Ewing 2008a, p. 7). A 
species with such a small range could be particularly susceptible to 
extirpation from a stochastic event such as an earthquake, rockslide, 
or severe hail storm (McMullen 1998, p. 3). This increased 
susceptibility is due to the likelihood that, although stochastic 
events are often localized in severity, such a localized event would 
likely impact all occurrences of the species, rather than just a small 
portion of the occurrences, as may be expected for a species with a 
larger range. For example, the newly discovered Smith Gulch occurrence 
is small (12 plants), and because of its positioning in a drainage, has 
a high potential for being destroyed by a rain event (DeYoung 2009e, p. 
1).
    In addition, the fragmentation of P. debilis habitat by human-
related activities threatens to reduce the species to mosaics of small 
populations occurring in isolated habitat remnants. Occurrences with 
small population size (fewer than 50 individuals) are more likely to 
suffer genetic problems such as genetic drift and inbreeding depression 
due to losses of individuals in such events (McMullen 1998, p. 3; 
Ellstrand & Elam 1993, p. 226). Conversely, if the current population 
structure is similar to the historical range, it is possible that P. 
debilis has adapted to be less vulnerable to inbreeding depression 
(Ellstrand & Elam 1993, p. 225).
    Climate change could potentially impact Penstemon debilis. 
According to the Intergovernmental Panel on Climate Change (IPCC), 
``Warming of the climate system in recent decades is unequivocal, as is 
now evident from observations of increases in global average air and 
ocean temperatures, widespread melting of snow and ice, and rising 
global sea level'' (Bates et al. 2008, p. 15). Average Northern 
Hemisphere temperatures during the second half of the 20th century were 
very likely higher than during any other 50-year period in the last 500 
years and likely the highest in at least the past 1,300 years (IPCC 
2007, p. 30). It is very likely that over the past 50 years, cold days, 
cold nights, and frosts have become less frequent over most land areas, 
and hot days and hot nights have become more frequent. It is likely 
that heat waves have become more frequent over most land areas, and the 
frequency of heavy precipitation events has increased over most areas 
(IPCC 2007, p. 30). As described above, climate modeling is not 
currently to the level that we can predict the amount of temperature 
and precipitation change within P. debilis's limited range. Therefore, 
we generally address what could happen under the current climate 
predictions. However, we need further refinement of the current 
predictions to draw more reliable conclusions concerning the effects of 
climate change on the species.
    It is unknown how Penstemon debilis responds to drought; however, 
in general, plant numbers decrease during drought years, but recover in 
subsequent seasons that are less dry. Drought years could result in a 
loss of plants. Changes in the global climate system during the 21st 
century are likely to be larger than those observed during the 20th 
century. For the next 2 decades, a warming of about 32.4 [deg]F (0.2 
[deg]C) per decade is projected (IPCC 2007, p. 45). Afterward, 
temperature projections increasingly depend on specific emission 
scenarios. Various emissions scenarios suggest that by the end of the 
21st century, average global temperatures are expected to increase 33 
to 39 [deg]F (0.6 to 4.0 [deg]C) with the greatest warming expected 
over land. Localized projections suggest the Southwest may experience 
the greatest temperature increase of any area in the lower 48 States. 
It is likely that hot extremes, heat waves, and heavy precipitation 
will increase in frequency (IPCC 2007, p. 30). There also is high 
confidence that many semi-arid areas like the western United States 
will suffer a decrease in water resources due to climate change. A 10- 
to 30-percent decrease in precipitation in mid-latitude western North 
America is projected by the year 2050 based on an ensemble of 12 
climate models (Milly et al. 2005, p. 1). When plant populations are 
impacted by additional threats during drought years, they may require 
several years to recover. Climate change may exacerbate the frequency 
and intensity of droughts. Under drought conditions, plants generally 
are less vigorous and less successful in reproduction. With small 
populations and their inherent genetic risk, lowered reproduction could 
result in reduced population viability.
    Recent analyses of long-term data sets show accelerating rates of 
climate change over the past 2 or 3 decades, indicating that the 
extension of species' geographic range boundaries towards the poles or 
to higher elevations by progressive establishment of new local 
populations will become increasingly apparent in the relatively short 
term (Hughes 2000, p. 60). The limited geographic range of the oil 
shale substrate that makes up the entire Penstemon debilis habitat 
could limit the ability of the species to adapt to changes in climatic 
conditions by progressive establishment of new populations.
    Incidental disturbance by humans, and stochastic events, such as 
drought, landslides, or encroaching vegetation can impact Penstemon 
debilis. However the species likely evolved under these factors and we 
do not consider them significant immediate threats. Climate change 
could exacerbate these factors, causing them to pose a threat to P. 
debilis; however the current data are not reliable enough at the local 
level for us to draw conclusions regarding the imminence of climate 
change threats to P. debilis.

Background--Phacelia submutica

Previous Federal Actions

    We included Phacelia submutica as a category 1 candidate species in 
the 1980 Review of Plant Taxa for Listing as Endangered or Threatened 
Species (45 FR 82480, December 15, 1980). In that notice, category 1 
candidates were defined as species for which the Service had 
``sufficient information on hand to support the biological 
appropriateness of their being listed as Endangered or Threatened 
species.'' We changed the candidate status of P. submutica to category 
2 on November 28, 1983 (45 FR 82480). On February 21, 1990, we again 
identified P. submutica as a category 1 candidate species (55 FR 6184). 
In the February 28, 1996, Federal Register (61 FR 7596) all category 1 
candidate species became candidates under the current definition. We 
assigned P. submutica an LPN of 11. In the 2005 CNOR (70 FR 24870, May 
11, 2005) we raised the LPN to 8, to reflect the increasing level of 
threats, which are imminent and of moderate magnitude.
    On May 11, 2004, we received a petition from the CBD to list, as 
endangered, 225 species we previously had identified as candidates for 
listing, including Phacelia submutica (CBD 2004, p. 146). Under 
requirements in section 4(b)(3)(B) of the Act, the CNOR and the Notice 
of Findings on Resubmitted Petitions published by the Service on May 
11, 2005 (70 FR 24870), included a finding that the immediate issuance 
of a proposed listing rule and the timely promulgation of a final rule 
for each of these petitioned species, including P. submutica, was 
warranted but precluded by higher priority listing actions, and that 
expeditious progress was being made to add qualified species to the 
Lists.
    On April 28, 2005, the CNE, the Colorado Native Plant Society, and 
botanist Steve O'Kane, Jr., Ph.D., submitted a petition to the Service 
to

[[Page 35734]]

list Phacelia submutica as endangered or threatened within its known 
historical range, and to designate critical habitat concurrent with the 
listing (CNE et al. 2005, p. 1). We considered the information in the 
petition when we prepared the 2006 CNOR (71 FR 53756, September 12, 
2006). Section 4(b)(3)(C) of the Act requires that when we make a 
warranted-but-precluded finding on a petition, we are to treat such a 
petition as one that is resubmitted on the date of such a finding. We 
identified P. submutica as a species for which we made a continued 
warranted-but-precluded finding on a resubmitted petition in the 
Federal Register on December 6, 2007 (72 FR 69034), and December 10, 
2008 (73 FR 75176). We retained an LPN of 8 for the species. In the 
2008 notice, we announced that we have not updated our assessment for 
this species, as we were developing this proposed listing rule (73 FR 
75227).
    In each assessment since its recognition as a candidate species 
under the current definition in 1996, we determined that publication of 
a proposed rule to list the species was precluded by our work on higher 
priority listing actions. In 2008, we received funding to initiate the 
proposal to list Phacelia submutica.

Species Information

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

[[Page 35735]]

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

[[Page 35736]]



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


[[Page 35737]]

Summary of Factors Affecting Phacelia submutica

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

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

[[Page 35738]]

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






Table 4.  Threats to Phacelia submutica Habitat by Source and Occurrence.  Occurrences 

A to X refer to Table 3 (CNHP 2009g, records aï¿½09hh, observation dates 1982 to 2008;  

CNHP 2010, records ii, jj; WestWater Engineering 2007, pp. 16, 17, 19, 27; Ewing 2009, map).  

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

------------------------------------------------------------------------------
Energy  X     X  X  X  X  X                                         X         
------------------------------------------------------------------------------
West-
Wide
Corri-
dor     X  X        X  X        X  X        X              X                  
------------------------------------------------------------------------------
Trampl-
ing     X  X     X  X  X  X                          X
------------------------------------------------------------------------------
ORV     X           X        X  X
------------------------------------------------------------------------------
Roads   X     X  X  X           X
------------------------------------------------------------------------------
Reser-        X              X
voirs
------------------------------------------------------------------------------
No Data                               X  X     X  X     X     X  X     X  X  X
------------------------------------------------------------------------------

    We consider destruction, modification and fragmentation of habitat 
to be moderate threats to Phacelia submutica throughout its range, due 
to ongoing development of oil and gas with associated pipelines, 
construction of new road and utility ROWs, road widening, and 
construction of access roads. P. submutica habitat is also threatened 
by soil modification resulting from livestock trampling and ORV 
tracking. These threats are of moderate magnitude because they are 
currently affecting at least 14 of the 25 occurrences, and because the 
plants and their seed banks occur in small isolated patches that are 
easily destroyed by small-scale disturbances. If these threats increase 
in frequency or severity, the species is likely to become endangered 
within the foreseeable future.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Overutilization for commercial, recreational, scientific, or 
educational purposes is not known to be a threat to Phacelia submutica. 
Therefore, we are not addressing this factor in this proposed rule.

C. Disease or Predation

    Disease and herbivory are not known to affect Phacelia submutica. 
Therefore, we are not addressing this factor in this proposed rule.

D. The Inadequacy of Existing Regulatory Mechanisms

Local Laws and Regulations
    Approximately 3 percent of Phacelia submutica occupied habitat 
occurs on private lands and another 12 percent on a combination of 
private and BLM lands (see Table 3 above). We are not aware of any city 
or county ordinances or zoning that provide for protection or 
conservation of P. submutica or its habitat on private lands.
State Laws and Regulations
    No State regulations protect rare plant species in Colorado. The 
CNAP has entered into agreements with BLM to help protect the Pyramid 
Rock occurrence of Phacelia submutica, by managing it as a Designated 
State Natural Area that is monitored by volunteer stewards. This 
management agreement can be terminated with 90-day written notice by 
either party. Therefore, we have concluded that the Designated Natural 
Area designation alone does not constitute an adequate regulatory 
mechanism to conserve P. submutica.
Federal Laws and Regulations
    Section 365 of the Energy Policy Act of 2005 (42 U.S.C. 15801 et 
seq.) establishes a Federal Permit Streamlining Pilot Project with the 
intent to improve the efficiency of processing oil and gas use 
authorizations on Federal lands. The two BLM pilot project offices for 
Colorado are in the Glenwood Springs and Grand Junction Field Offices, 
both of which manage Phacelia submutica habitat. Faster processing of 
permits to drill increases the likelihood of ground disturbance on P. 
submutica habitat because the plants are ephemeral annuals that can 
only be found for about 6 weeks during favorable years, and not all 
suitable habitat has been surveyed. When the plants are not present or 
previously documented, avoidance of the seed bank depends on field 
assessments of suitable habitat. Suitable habitat covers more area than 
the ``sweet spots'' where the plants grow, and suitable habitat has no 
regulatory protection (BLM 2008d, p. 36). As a result, seed banks and 
suitable habitat are increasingly likely to be disturbed or removed 
during the process of approving locations for new energy development 
projects.
    Candidate species are managed by BLM as sensitive species; BLM has 
a policy for management of sensitive species that recommends avoidance 
and minimization of threats to plants and habitat, as well as habitat 
conservation assessments and conservation

[[Page 35739]]

agreements (BLM 2008d, pp. 8, 36-38). No assessments or agreements have 
been formalized for Phacelia submutica. As opposed to listed species, 
biological assessments or consultation with the Service are not 
required for BLM-designated sensitive species during the authorization 
process for oil and gas use on Federal lands (BLM 2008d, p. 33).
    Phacelia submutica is currently on the sensitive species list for 
the USFS, Region 2, which includes all USFS lands in Colorado. The USFS 
manages less than 10 percent of the suitable habitat for P. submutica 
(Occurrence H, CNHP 2009g, records q, r, s, t). A proposed Lower 
Battlement Mesa Research Natural Area to protect the species on the 
White River National Forest has not been formally established (Ladyman 
2003, pp. 8, 23; Proctor 2010, pers. comm). If established, protection 
would include restrictions on ORV use, livestock grazing, and resource 
extraction. Trampling of the habitat of P. submutica by cattle has been 
observed at three of the four occupied sites on USFS land (CNHP 2009g, 
records q, r, t).
    The BLM policy of avoidance and minimization of threats to plants 
and habitatmay not adequately protect Phacelia submutica because the 
plants can only be found for a few weeks during years when growing 
conditions have been favorable (Burt and Spackman 1995, p. 8). Thus, 
well-intentioned avoidance and minimization measures may not be 
implemented if no plants are seen even in areas where subsequent timely 
surveys would likely demonstrate a persistent seed bank. Because 
available inventories are not all recent, and drilling permits are 
expedited, plant occurrences, especially as seed banks, may be 
overlooked in the permitting process. The BLM attempts to avoid 
disturbances that would adversely affect sensitive species' viability 
or trend the species toward Federal listing. This includes avoidance of 
suitable habitat if it can be identified as such (BLM 2008d, pp. 8, 36; 
BLM 2008e, pp. 5-7). In spite of such efforts, pipeline ROWs exist 
within 20 ft (6 m) and 100 ft (30 m) of known P. submutica occurrences 
(DeYoung 2009f, pers. comm.). We recommend buffers of 656 ft (200m) 
between the edge of disturbance and suitable plant habitat to protect 
the plants from destruction by vehicles that stray outside of the 
project area, runoff, erosion, dust deposition, or other indirect 
effects such as destruction of pollinator nesting habitat.
    Five occurrences of Phacelia submutica are located on BLM land in 
an area called South Shale Ridge that covers more than a third of the 
known range for this species (BLM 2005b, p. 5). Part of South Shale 
Ridge was recommended as an ACEC for protection of P. submutica in 
1995, but was not designated as an ACEC (Burt and Spackman 1995, p. 36) 
in that area. Portions of South Shale Ridge that were withheld from 
leasing in the past were leased for oil and gas development in November 
2005 (BLM 2005b, p. 5). These leases were subsequently deferred pending 
development of a new Resource Management Plan for the Grand Junction 
Field Office (Ewing 2008c, pers. comm.; BLM 2005b, p. 5). If the BLM 
sells these leases, then 8 ac (3 ha) of occupied P. submutica habitat 
within about 65 ac (26 ha) of suitable habitat will be newly opened to 
natural gas development in a previously undeveloped area (Ewing 2009, 
map).
    Pyramid Rock is adjacent to South Shale Ridge, and the Pyramid Rock 
occurrence of Phacelia submutica is within the BLM Pyramid Rock ACEC, 
including an estimated 31 to 2,055 plants (depending on the year) 
within 20 occupied ac (8 ha) on 160 ac (64.7 ha) of suitable habitat 
(CNHP 2009g, record c; Wenger 2009, pp. 1-11). The ACEC designation 
carries no protection in and of itself (BLM 2006, pp. 2-65). 
Stipulations of no new surface occupancy or ground disturbance apply to 
this ACEC for protection of candidate, proposed, and listed plant 
species. However, due to the possibility of exceptions being granted, 
we cannot predict with any degree of certainty what stipulations will 
actually be applied to the plant or its habitat that ensure the long 
term conservation of the species. BLM installed cable fence in 2007 to 
deter ORVs from crossing habitat for a federally threatened cactus 
(Sclerocactus glaucus, Colorado hookless cactus) and P. submutica. The 
BLM excluded this ACEC from a South Shale Ridge lease sale in 2005 
(CNHP 2005, p. 5; BLM 2005b, p. 5). P. submutica plants have not been 
directly impacted since the fence was installed, and existing pipeline 
and roads remain outside the fence. The ACEC has provided adequate 
protection thus far for about 5 percent of the known occupied habitat 
for the species (CNHP 2009g, record c).
    No adequate regulatory mechanisms currently exist to protect 
Phacelia submutica. We consider the inadequacy of existing regulatory 
mechanisms to be a significant and ongoing threat to P. submutica 
because no formal plans or agreements beyond one ACEC are in place to 
protect this plant. Sensitive species designations provide policies to 
be carried out with the resources available, but they do not provide 
regulations to protect this species from losing habitat and seed banks 
to energy development projects, cattle trampling, or ORV traffic over 
the next 10 to 20 years. Therefore, this plant is likely to become 
endangered within the foreseeable future.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Climate change is likely to affect Phacelia submutica because seed 
germination, seed dormancy, and persistence of the seed bank are all 
directly dependent on precipitation and temperature patterns (Levine et 
al. 2008, p. 805). As described above, climate modeling is not 
currently to the level that we can predict the amount of temperature 
and precipitation change within the limited range of P. submutica. 
Therefore, this discussion generally addresses what could happen under 
the current climate predictions. However, we need further refinement of 
the current predictions to draw more reliable conclusions concerning 
the effects of climate change on the species. Localized projections 
suggest the Southwest, including Colorado, may experience the greatest 
temperature increase of any area in the lower 48 States (IPCC 2007, p. 
30). It is very likely that hot extremes, heat waves, and heavy 
precipitation will increase in frequency (IPCC 2007, p. 46). A 10- to 
30-percent decrease in runoff in mid-latitude western North America is 
projected by the year 2050 based on an ensemble of 12 climate models 
(Milly et al. 2005, p. 1).
    Future changes in the timing of the first major spring rains each 
year, and temperatures associated with the first major spring rains 
each year may more strongly affect germination and persistence of 
ephemeral annual plants than changes in season-long rainfall (barring 
severe droughts) (Levine et al. 2008, p. 805). Increasing environmental 
variance might decrease extinction risk for rare desert ephemeral 
plants, because these plants typically rely on extremely good years to 
restock the persistent seed bank while extremely bad years have little 
impact (Meyer et al. 2006, p. 901). However, extremely long droughts 
resulting from climate change, with no good years for replenishing the 
seed bank, would likely cause Phacelia submutica to become endangered. 
A persistent seed bank enables the species to survive drought. However, 
because the soil can remain bare of P. submutica plants for several 
years, it is difficult to identify and protect the seemingly unoccupied 
habitat that occurs in small, isolated patches that are easily

[[Page 35740]]

destroyed by small-scale disturbances, and can be overlooked during 
habitat assessments. The longer the species remains dormant, the less 
likely it is that we will know if an area is occupied, reducing our 
ability to avoid impacts to the species and protect it from becoming 
endangered.
    While current climate change predictions are not reliable enough at 
the local level for us to draw conclusions about its effects on P. 
submutica, it is likely that there will be drying trends in the future 
and the seeds will remain dormant for long periods. This would make it 
increasingly difficult to detect occupied habitat and avoid destruction 
of habitat and more likely that the species will become endangered.

Proposed Determination

    We have carefully assessed the best scientific and commercial 
information available regarding past, present, and future threats to 
Ipomopsis polyantha, Penstemon debilis, and Phacelia submutica. Section 
3(6) of the Act defines an endangered species as ``any species which is 
in danger of extinction throughout all or a significant portion of its 
range,'' and section 3(20) defines a threatened species as ``any 
species which is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range.'' Under the Act and our implementing regulations, a species may 
warrant listing if it is endangered or threatened throughout all or a 
significant portion of its range. Each of the three endemic plant 
species proposed for listing in this rule is highly restricted in its 
range and the threats occur throughout its range. Therefore, we 
assessed the status of each species throughout its entire range. In 
each case, the threats to the survival of these species occur 
throughout the species' range and are not restricted to any particular 
significant portion of that range. Accordingly, our assessment and 
proposed determination applies to each species throughout its entire 
range. Our proposed determination for each species is presented below.

Ipomopsis polyantha

    The species' highly restricted soil requirements and geographic 
range make it particularly susceptible to extinction at any time due to 
commercial, municipal, and residential development; associated road and 
utility improvements and maintenance; heavy livestock use; inadequacy 
of existing regulatory mechanisms; fragmented habitat; and prolonged 
drought (see Factors A, C, D, and E).
    The main occurrence of Ipomopsis polyantha includes 3 mi (4.8 km) 
of highway ROW and the private properties that extend 0.25 to 1.2 mi 
(0.4 to 1.9 km) on either side of the highway. A smaller occurrence of 
about 23 ac (9 ha) includes highway ROWs, private land, and 20 ac (8 
ha) of BLM land. The loss or fragmentation of either occurrence would 
represent a substantial loss to the viability of the species. Both 
known occurrences face ongoing, new, and potential threats, including 
commercial, residential and municipal development; associated road and 
utility improvements and maintenance; heavy livestock use; inadequacy 
of existing regulatory mechanisms; fragmented habitat; and prolonged 
drought conditions. The level of threat for I. polyantha is high due to 
the direct overlap of rapid land development on 91 percent of the known 
suitable habitat. The County and Town Community Plan includes high to 
low density development over the species' entire range. Private 
landowners are considering commercial and residential development that 
would include a parcel at the intersection of US 160 and US 84 that 
currently contains the highest density of plants.
    Planned development will transform the land adjacent to US 84, at 
the center of the species' distribution, from low-density residential/
agricultural land use to commercial, townhome, and higher density 
residential use. The cumulative impact of current and planned 
development could result in extensive disturbance and destruction of 
the remaining habitat within the next 5 to 10 years, putting the 
species in danger of extinction.
    On the basis of the best available information, we propose to list 
Ipomopsis polyantha as an endangered species. Endangered status 
reflects the vulnerability of this species to threat factors negatively 
affecting it and its limited and restricted habitat. I. polyantha is in 
danger of extinction throughout all of its range.

Penstemon debilis

    Extremely low numbers and a highly restricted geographic range make 
Penstemon debilis particularly susceptible to becoming endangered in 
the foreseeable future. Threats to the species and its habitat include 
energy development, road maintenance, inadequacy of existing regulatory 
mechanisms, and stochastic events (see Factors A, D, and E).
    The total estimated number of plants in the 4 viable occurrences is 
about 4,000 individuals. It is likely that additional unknown 
occurrences exist (Spackman-Panjabi 2008, pers. comm.). Three of the 4 
viable occurrences are on lands owned by an energy development company. 
The energy development company has pledged to manage development to 
minimize impacts to the plants; however, the agreement is not legally 
binding. The fourth occurrence, on BLM land, is subject to disturbance 
as a result of the ongoing CERCLA project and road maintenance. The 
loss of any one occurrence would represent a substantial diminution in 
the viability of the species. All four known occurrences face ongoing 
or potential threats, including oil and gas development, oil shale 
mining and associated impacts, road maintenance, inadequacy of existing 
regulatory mechanisms, and potential stochastic events. The level of 
threats this poses for Penstemon debilis is considered high due to the 
direct overlap of energy resources and all known species occurrences. 
The BLM RFD scenario predicts extensive gas development within or near 
the species' range within the foreseeable future (BLM 2005b, pp. 4-11). 
The BLM RFD, in conjunction with the stated intention of the owner of 
the land containing the majority of the plants to develop natural gas 
in the vicinity of the plant occurrences, could result in disturbance 
to the remaining occurrences within the next 20 years, resulting in the 
species being likely to become endangered.
    The primary factors threatening Penstemon debilis are: the present 
or threatened destruction, modification or curtailment of P. debilis 
habitat and range; and the inadequacy of existing regulatory 
mechanisms. These factors pose immediate threats to the species because 
they have been ongoing. However, these threats are moderate in severity 
because actual impacts to individual plants and occupied habitat as a 
result have been, and are expected to be limited, and the species is 
able to slowly recover and recolonize after disturbance. Therefore, on 
the basis of the best available information, we propose to list P. 
debilis as a threatened species. Threatened status reflects the 
vulnerability of this species to factors that negatively affect the 
species and its limited and restricted habitat. Penstemon debilis is 
likely to become endangered in the foreseeable future if present 
threats increase.

Phacelia submutica

    The current range of Phacelia submutica is subject to human-caused 
modifications from natural gas exploration and production with 
associated expansion of pipelines, roads, and utilities; development 
within

[[Page 35741]]

the Westwide Energy Corridor; increased access to the habitat by ORVs; 
soil and seed disturbance by cattle (Factor A); and inadequate 
regulations (Factor D). The species' small geographic range, highly 
specific soil and germination requirements, limited seed dispersal, 
fragmented habitat, prolonged seed dormancy, and potential seed bank 
depletion by prolonged drought (Factor E) make P. submutica vulnerable 
to these threats to an extent that the species may become endangered 
within the foreseeable future (10 to 20 years), depending primarily on 
the rate of future energy development.
    Phacelia submutica occurs on about 104 ac (42 ha) of known occupied 
habitat (see Table 3 above) (CNHP 2009g, records a-hh; CNHP 2010, 
records ii-jj; WestWater Engineering 2007, pp. 16, 17, 19, 27). All 
known occurrences are in the midst of the third largest natural gas-
producing area in Colorado (COGCC 2008, p. 1). Based on the rate of 
current and proposed energy development over the entire range of the 
species (COGCC 2008 p. 1; COGCC 2009 p. 1; Ewing 2009, map), we 
estimate that at least 50 percent of the known habitat has the 
potential to be modified or destroyed within 10 to 20 years, thus 
making it likely that the species will become endangered within that 
time.
    The plants and their seed banks occur in small, isolated patches 
that are easily destroyed by small-scale disturbances. In the past 20 
years, we have found three new occurrences, but no expansion of the 
known range of the species (CNHPg 2009, a-hh; CNHP 2010, records ii-jj; 
WestWater Engineering 2007, pp. 16, 17, 19, 27). Numbers of flowering 
plants fluctuate, but they do not disperse seeds beyond the existing 
patches of unique soil that are separated from one another by a few 
yards or several miles (Ewing 2008b, map). Any loss of occupied habitat 
will be a permanent loss for the foreseeable future, and cause a 
decline in the status of the species.
    On the basis of the best available information, we propose to list 
Phacelia submutica as a threatened species. Threatened status reflects 
the vulnerability of this species to factors that negatively affect the 
species and its limited and restricted habitat. While not in immediate 
danger of extinction, P. submutica has the strong potential to become 
an endangered species in the foreseeable future if habitat is lost and 
existing seed banks cannot expand to maintain the species' range.

Available Conservation Measures

    Conservation tools provided by the Service's Candidate Conservation 
Program are available for these three species. Our Candidate 
Conservation Program assesses species and develops and facilitates the 
use of voluntary conservation tools for collaborative conservation of 
candidate and other species-at-risk and their habitats, so that they do 
not need the protection of the Act. Candidate Conservation Agreements 
(CCAs) could provide adequate regulatory mechanisms for these three 
species if such agreements could be finalized by the time of our final 
listing determination. The CCAs are voluntary conservation agreements 
between the Service and one or more public or private parties that 
identify threats to candidate species, plan actions to address threats 
and conserve the species, and implement conservation measures.
    Because the three species are narrowly distributed on lands owned 
by a relatively small number of landowners, we believe that the 
development of CCAs with the BLM and with private entities and State 
and local agencies could be effective in addressing the threats. We are 
open to working with any landowners on developing such plans to assure 
the conservation of these species. Any such agreement finalized before 
our listing decision will be evaluated according to our Policy on 
Evaluating Conservation Efforts When Making Listing Decisions (68 FR 
15100, March 28, 2003) to determine if the agreement constitutes an 
adequate regulatory mechanism.
    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness and 
conservation by Federal, State, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and requires that recovery actions be carried out for all listed 
species. The protection measures required of Federal agencies and the 
prohibitions against certain activities are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act requires the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed, preparation of a draft and final 
recovery plan, and revisions to the plan as significant new information 
becomes available. The recovery outline guides the immediate 
implementation of urgent recovery actions and describes the process to 
be used to develop a recovery plan. The recovery plan identifies site-
specific management actions that will achieve recovery of the species, 
measurable criteria that determine when a species may be downlisted or 
delisted, and methods for monitoring recovery progress. Recovery plans 
also establish a framework for agencies to coordinate their recovery 
efforts and provide estimates of the cost of implementing recovery 
tasks. Recovery teams (comprised of species experts, Federal and State 
agencies, non-government organizations, and stakeholders) are often 
established to develop recovery plans. When completed, the recovery 
outline, draft recovery plan, and the final recovery plan will be 
available on our website (http://www.fws.gov/endangered), or from our 
Western Colorado Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, non-governmental organizations, businesses, and 
private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. Achieving recovery of these species requires cooperative 
conservation efforts on private and public lands.
    If these three plant species are listed, funding for recovery 
actions will be available from a variety of sources, including Federal 
budgets, State programs, and cost share grants for non-Federal 
landowners, the academic

[[Page 35742]]

community, and nongovernmental organizations. In addition, under 
section 6 of the Act, the State of Colorado would be eligible for 
Federal funds to implement management actions that promote the 
protection and recovery of Ipomopsis polyantha, Penstemon debilis, and 
Phacelia submutica. Information on our grant programs that are 
available to aid species recovery can be found at: http://www.fws.gov/grants.
    Although Ipomopsis polyantha, Penstemon debilis, and Phacelia 
submutica are only proposed for listing under the Act at this time, 
please let us know if you are interested in participating in recovery 
efforts for these species. Additionally, we invite you to submit any 
new information on these species whenever it becomes available and any 
information you may have for recovery planning purposes to the person 
listed under FOR FURTHER INFORMATION CONTACT.
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) of the Act requires Federal agencies to confer with the 
Service on any action that is likely to jeopardize the continued 
existence of a species proposed for listing or result in destruction or 
adverse modification of proposed critical habitat. If a species is 
listed, section 7(a)(2) of the Act requires Federal agencies to ensure 
that activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of the species or destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
must enter into formal consultation with the Service.
    Federal agency actions within the habitat of these species that may 
require conference or consultation or both, as described in the 
preceding paragraph, include the following for each species:
    Ipomopsis polyantha--Permitting of grazing and authorization of 
utility or access ROWs by the BLM. Other types of actions that may 
require consultation include provision of Federal funds to State and 
private entities through Federal programs, such as Colorado Department 
of Transportation highway construction or improvement projects, Housing 
and Urban Development Tax Credit Assistance Program, the Service's 
Landowner Incentive Program, and various grants administered by the 
U.S. Department of Agriculture and Natural Resources Conservation 
Service (USDA-NRCS)
    Penstemon debilis--Oil and gas leasing, exploration, and 
permitting; oil shale research; authorization of transmission towers, 
pipelines and power lines; reclamation actions; travel management; and 
authorization of road maintenance by the BLM. Other types of actions 
that may require consultation include provision of Federal funds to 
State and private entities through Federal programs, such as the 
Service's Landowner Incentive Program, State Wildlife Grant Program, 
and Federal Aid in Wildlife Restoration program, as well as the various 
grants administered by USDA-NRCS.
    Phacelia submutica--Oil and gas leasing, exploration, permitting, 
development, pipelines and transmission lines; permitting of grazing; 
authorization of travel routes; road construction or maintenance by the 
BLM or the USFS; and authorization of pipeline and power line routes 
within the Westwide Energy Corridor. Other types of actions that may 
require consultation include water reservoir construction and provision 
of Federal funds to State and private entities through Federal 
programs, such as the Service's Landowner Incentive Program, and 
various grants administered by USDA-NRCS.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to threatened and 
endangered plants. All prohibitions of section 9(a)(2) of the Act, 
implemented by 50 CFR 17.61 and 50 CFR 17.71, apply. These 
prohibitions, in part, make it illegal for any person subject to the 
jurisdiction of the United States to import or export, transport in 
interstate or foreign commerce in the course of a commercial activity, 
sell or offer for sale in interstate or foreign commerce, or remove and 
reduce the species to possession from areas under Federal jurisdiction. 
In addition, for plants listed as endangered, the Act prohibits the 
malicious damage or destruction on areas under Federal jurisdiction and 
the removal, cutting, digging up, damaging, or destroying of such 
plants in knowing violation of any State law or regulation, including 
State criminal trespass law. Certain exceptions to the prohibitions 
apply to agents of the Service and State conservation agencies. 
Colorado's Endangered Species law does not currently cover plants and 
does not provide protection to Ipomopsis polyantha, Penstemon debilis, 
and Phacelia submutica. Therefore, listing under the Act will offer 
additional protection to these species.
    The Act, 50 CFR 17.62, and 50 CFR 17.72 also provide for the 
issuance of permits to carry out otherwise prohibited activities 
involving endangered and threatened plants under certain circumstances. 
Such permits are available for scientific purposes and to enhance the 
propagation or survival of the species. We anticipate that the only 
permits that would be sought or issued for Ipomopsis polyantha, 
Penstemon debilis, and Phacelia submutica would be in association with 
research and recovery efforts, as these species are not common in 
cultivation or in the wild. Requests for copies of the regulations 
regarding listed species and inquiries about prohibitions and permits 
may be addressed to U.S. Fish and Wildlife Service, Ecological 
Services, P.O. Box 25486 - DFC, Denver, CO 80225-0486 (telephone 303-
236-4256; facsimile 303-236-0027).

Critical Habitat

Background

    Critical habitat is defined in section 3(5)(A) of the Act as:
    (i) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (I) essential to the conservation of the species and
    (II) which may require special management considerations or 
protection; and
    (ii) specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3(3) of the Act, means to 
use and the use of all methods and procedures that are necessary to 
bring an endangered or threatened species to the point at which the 
measures provided under the Act are no longer necessary. Such methods 
and procedures include, but are not limited to, all activities 
associated with scientific resources management such as research, 
census, law enforcement, habitat acquisition and maintenance, 
propagation, and transplantation.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against Federal agencies carrying out, funding, 
or authorizing the destruction or adverse modification of critical 
habitat. Section 7(a)(2) requires consultation on Federal actions that

[[Page 35743]]

may affect critical habitat. The designation of critical habitat does 
not affect land ownership or establish a refuge, wilderness, reserve, 
preserve, or other conservation area. Such designation does not allow 
the government or public to access private lands. Such designation does 
not require implementation of restoration, recovery, or enhancement 
measures by non-Federal landowners. Where a landowner seeks or requests 
Federal agency funding or authorization for an action that may affect a 
listed species or critical habitat, the consultation requirements of 
section 7(a)(2) of the Act would apply, but even in the event of a 
destruction or adverse modification finding, the Federal action 
agency's and the applicant's obligation is not to restore or recover 
the species, but to implement reasonable and prudent alternatives to 
avoid destruction or adverse modification of critical habitat.
    For inclusion in a critical habitat designation, the habitat within 
the geographical area occupied by the species at the time it was listed 
must contain the physical and biological features essential to the 
conservation of the species, and be included only if those features may 
require special management considerations or protection. Critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, habitat areas that provide 
essential life cycle needs of the species (areas on which are found the 
physical and biological features laid out in the appropriate quantity 
and spatial arrangement for the conservation of the species). Under the 
Act and regulations at 50 CFR 424.12, we can designate critical habitat 
in areas outside the geographical area occupied by the species at the 
time it is listed only when we determine that those areas are essential 
for the conservation of the species and that designation limited to 
those areas occupied at the time of listing would be inadequate to 
ensure the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific, commercial, and economic data 
available. Further, our Policy on Information Standards under the Act 
(published in the Federal Register on July 1, 1994 (59 FR 34271)), the 
Information Quality Act (section 515 of the Treasury and General 
Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; 
H.R. 5658)), and our associated Information Quality Guidelines, provide 
criteria, establish procedures, and provide guidance to ensure that our 
decisions are based on the best scientific data available. They require 
our biologists, to the extent consistent with the Act and with the use 
of the best scientific data available, to use primary and original 
sources of information as the basis for recommendations to designate 
critical habitat.
    When we determine which areas should be designated as critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species. Additional 
information sources may include the recovery plan for the species, 
articles in peer-reviewed journals, conservation plans developed by 
States and counties, scientific status surveys and studies, biological 
assessments, or other unpublished materials and expert opinion or 
personal knowledge.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that critical habitat 
designated at a particular point in time may not include all of the 
habitat areas that we may later determine are necessary for the 
recovery of the species. For these reasons, a critical habitat 
designation does not signal that habitat outside the designated area is 
unimportant or may not be required for recovery of the species.
    Areas that are important to the conservation of the species, but 
are outside the critical habitat designation, will continue to be 
subject to conservation actions we implement under section 7(a)(1) of 
the Act. Areas that support occurrences also are subject to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available scientific 
information at the time of the agency action. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans, or other species conservation planning efforts if 
new information available at the time of these planning efforts calls 
for a different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is determined to be endangered or threatened. Our 
regulations (50 CFR 424.12(a)(1)) state that the designation of 
critical habitat is not prudent when one or both of the following 
situations exist: (1) The species is threatened by taking or other 
human activity, and identification of critical habitat can be expected 
to increase the degree of threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species.
    There is no documentation that Ipomopsis polyantha, Penstemon 
debilis, or Phacelia submutica are threatened by collection or other 
intentional taking. In the absence of finding that the designation of 
critical habitat would increase threats to a species, if there are any 
benefits to a critical habitat designation, then a designation is 
prudent. The potential benefits include: (1) Triggering consultation 
under section 7 of the Act, in new areas for actions in which there may 
be a Federal nexus where it would not otherwise occur because, for 
example, it is or has become unoccupied or the occupancy is in 
question; (2) focusing conservation activities on the most essential 
features and areas; (3) providing educational benefits to State or 
county governments or private entities; and (4) preventing people from 
causing inadvertent harm to the species because they do not know it may 
be present.
    The primary regulatory effect of critical habitat is the section 
7(a)(2) requirement that Federal agencies refrain from taking any 
action that destroys or adversely affects critical habitat. At present, 
the only known extant individuals of Ipomopsis polyantha occur on 
private, town, county, and BLM lands, and on Federal highway ROWs. Most 
of the known individuals of Penstemon debilis occur on private land; 
however, approximately 18 percent of the individuals occur on Federal 
lands. Approximately 3 percent of known occupied habitat for Phacelia 
submutica occurs on private lands and another 12 percent on a 
combination of private and BLM lands, with the remaining 85 percent 
occurring on BLM and USFS lands. Lands that may be designated as 
critical habitat for these species in the future may be subject to 
Federal actions that trigger the section 7 consultation requirement. 
All projects taking place on Federal lands that may affect critical 
habitat would require consultation. Projects on private land would 
require consultation if they include a Federal action, such as the 
granting of Federal monies for conservation projects or the need for 
Federal permits for projects.

[[Page 35744]]

    There also may be some educational or informational benefits to the 
designation of critical habitat. Educational benefits include the 
notification of landowners, land managers, and the general public of 
the importance of protecting the habitat of this species. In the case 
of I. polyantha, P. debilis, and P. submutica, these aspects of 
critical habitat designation would potentially benefit the conservation 
of these species. Therefore, because we have determined that the 
designation of critical habitat will not likely increase the degree of 
threat to these species and may provide some measure of benefit, we 
find that designation of critical habitat is prudent for I. polyantha, 
P. debilis, and P. submutica.

Critical Habitat Determinability

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

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our determination of status for these species is based on 
scientifically sound data, assumptions, and analyses. We will invite 
these peer reviewers to comment, during the public comment period, on 
the specific assumptions and conclusions regarding the proposal to list 
Ipomopsis polyantha as endangered and Penstemon debilis and Phacelia 
submutica as threatened, and our proposed determination regarding 
critical habitat for these species. We will send copies of this 
proposed rule to the peer reviewers immediately following publication 
in the Federal Register.
    We will consider all comments and information we receive during the

[[Page 35745]]

comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests must be received within 45 days after the date 
of publication of this proposal in the Federal Register. Such requests 
must be sent to the address shown in the FOR FURTHER INFORMATION 
CONTACT section. We will schedule one or more public hearings on this 
proposal, if any are requested, and announce the dates, times, and 
places of those hearings, as well as how to obtain reasonable 
accommodations, in the Federal Register and local newspapers at least 
15 days before the hearing(s).
    Persons needing reasonable accommodations to attend and participate 
in a public hearing should contact the Western Colorado Ecological 
Services Field Office at 970-243-2778, as soon as possible. To allow 
sufficient time to process requests, please call no later than 1 week 
before the hearing date. Information regarding this proposed rule is 
available in alternative formats upon request.

Required Determinations

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand including answers to questions such as 
the following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to understand if it were divided 
into more (but shorter) sections? (5) Is the description of the rule in 
the SUPPLEMENTARY INFORMATION section of the preamble helpful in 
understanding the emergency rule? What else could we do to make the 
rule easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street, NW., Washington, D.C. 20240. 
You also may e-mail the comments to this address: [email protected].

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This proposed rule does not contain any new collections of 
information that require approval by Office of Management and Budget 
(OMB) under the Paperwork Reduction Act. This rule would not impose new 
recordkeeping or reporting requirements on State or local governments, 
individuals, businesses, or organizations. We may not conduct or 
sponsor and you are not required to respond to a collection of 
information unless it displays a currently valid OMB control number.

National Environmental Policy Act

    We have determined that Environmental Assessments and Environmental 
Impact Statements, as defined under the authority of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be 
prepared in connection with regulations adopted under section 4(a) of 
the Act. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244).

References Cited

    A complete list of all references cited in this proposed rule is 
available on the Internet at http://www.regulations.gov or upon request 
from the Field Supervisor, Western Colorado Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT section).

Author(s)

    The primary authors of this document are staff members of the 
Western Colorado Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. In Sec.  17.12(h) add entries for Ipomopsis polyantha, Penstemon 
debilis, and Phacelia submutica, in alphabetical order under FLOWERING 
PLANTS, to the List of Endangered and Threatened Plants, as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                    Species
------------------------------------------------  Historic range        Family            Status         When listed        Critical      Special rules
       Scientific name            Common name                                                                               habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                         ...............
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    FLOWERING PLANTS
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ipomopsis polyantha            Pagosa skyrocket  U.S.A (CO)        Polemoniaceae     E                                  NA               NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Penstemon debilis              Parachute         U.S.A. (CO)       Plantaginaceae    T                                  NA               NA
                                beardtongue
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 35746]]

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

* * * * *

    Dated: June 8, 2010
Jeffrey L. Underwood,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-15251 Filed 6-22-10; 8:45 am]
BILLING CODE 4310-55-S