[Federal Register Volume 77, Number 156 (Monday, August 13, 2012)]
[Rules and Regulations]
[Pages 48368-48418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18833]



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Vol. 77

Monday,

No. 156

August 13, 2012

Part III





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





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

  Federal Register / Vol. 77 , No. 156 / Monday, August 13, 2012 / 
Rules and Regulations  

[[Page 48368]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2011-0040: 4500030114]
RIN 1018-AX75


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Ipomopsis polyantha (Pagosa skyrocket), Penstemon 
debilis (Parachute beardtongue), and Phacelia submutica (DeBeque 
phacelia)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, are designating 
critical habitat for the endangered Ipomopsis polyantha (Pagosa 
skyrocket) and the threatened Penstemon debilis (Parachute beardtongue) 
and Phacelia submutica (DeBeque phacelia) under the Endangered Species 
Act (Act). The purpose of this regulation is to conserve these three 
plant species and their habitats under the Act.

DATES: This rule becomes effective on September 12, 2012.

ADDRESSES: This final rule, and the associated final economic analysis 
and final environmental assessment, are available on the Internet at 
http://www.regulations.gov. The coordinates or plot points or both from 
which the maps are generated are included in the administrative record 
for this critical habitat designation and are available at http://www.fws.gov/mountain-prairie/species/plants/3ColoradoPlants/index.html, 
http://www.regulations.gov at Docket No. FWS-R6-ES-2011-0040, and at 
the Western Colorado Ecological Services Office (see FOR FURTHER 
INFORMATION CONTACT). Comments and materials received, as well as 
supporting documentation used in preparing this final rule, are 
available for public inspection, by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Western Colorado 
Ecological Services Office, 764 Horizon Drive, Suite B, Grand Junction, 
CO 81506-3946; telephone 970-243-2778; facsimile 970-245-6933.

FOR FURTHER INFORMATION CONTACT: Patty Gelatt, Field Supervisor, U.S. 
Fish and Wildlife Service, Western Colorado Ecological Services Office, 
764 Horizon Drive, Suite B, Grand Junction, CO 81506-3946; telephone 
970-243-2778; facsimile 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:

Executive Summary

    Why we need to publish a rule and the basis for our action. Under 
the Act, any species that is determined to be threatened or endangered 
shall, to the maximum extent prudent and determinable, have habitat 
designated that is considered to be critical habitat. We listed these 
three plant species on July 27, 2011 (76 FR 45054). At the same time, 
we proposed to designate critical habitat (76 FR 45078). Section 
4(b)(2) of the Act states that the Secretary shall designate critical 
habitat on the basis of the best available scientific data after taking 
into consideration the economic impact, national security impact, and 
any other relevant impact of specifying any particular area as critical 
habitat. The critical habitat areas we are designating in this rule 
constitute our current best assessment of the areas that meet the 
definition of critical habitat for Ipomopsis polyantha, Penstemon 
debilis, and Phacelia submutica. Here we are designating:
     Approximately 9,641 acres (ac) (3,902 hectares (ha)), in 4 
units, are being designated as critical habitat for Ipomopsis 
polyantha.
     Approximately 15,510 ac (6,217 ha), in 4 units, are being 
designated as critical habitat for Penstemon debilis.
     Approximately 25,484 ac (10,313 ha), in 9 units, are being 
designated as critical habitat for Phacelia submutica.
     In total, approximately 50,635 ac (20,432 ha), in 17 
units, are being designated as critical habitat for the three species.
    We have prepared an economic analysis of the designation of 
critical habitat. In order to consider economic impacts, we have 
prepared an analysis of the economic impacts of the critical habitat 
designations and related factors. We announced the availability of the 
draft economic analysis (DEA) on March 27, 2012, allowing the public to 
provide comments on our analysis. We have incorporated the comments and 
are completed the final economic analysis (FEA) concurrently with this 
final determination.
    We have prepared an environmental assessment of the designation of 
critical habitat. Based on a court ruling, we must undertake National 
Environmental Policy Act (NEPA) analysis in the Tenth Circuit when we 
designate critical habitat. We announced the availability of the draft 
environmental assessment on March 27, 2012, allowing the public to 
provide comments on our assessment. We have incorporated the comments 
and are completed the final environmental assessment concurrently with 
this final determination.
    Peer reviewers support our methods. We obtained opinions from four 
knowledgeable individuals with scientific expertise to review our 
technical assumptions, analysis, adherence to regulations, and whether 
or not we had used the best available information. These peer reviewers 
generally concurred with our methods and conclusions and provided 
additional information, clarifications, and suggestions to improve this 
final rule.

Background

    It is our intent to discuss in this final rule only those topics 
directly relevant to the development and designation of critical 
habitat for Ipomopsis polyantha, Penstemon debilis, and Phacelia 
submutica under the Act (16 U.S.C. 1531 et seq.). For more information 
on the biology and ecology of I. polyantha, P. debilis, and P. 
submutica, refer to the final listing rule published in the Federal 
Register on July 27, 2011 (76 FR 45054). For information on I. 
polyantha, P. debilis, and P. submutica critical habitat, refer to the 
proposed rule to designate critical habitat for I. polyantha, P. 
debilis, and P. submutica published in the Federal Register on July 27, 
2011 (76 FR 45078). Information on the associated DEA and draft 
environmental assessment for the proposed rule was published in the 
Federal Register on March 27, 2012 (77 FR 18157).

Previous Federal Actions

    The final rule listing Ipomopsis polyantha as an endangered 
species, and listing Penstemon debilis and Phacelia submutica as 
threatened species, was published on July 27, 2011 (76 FR 45054). Our 
proposal for designating critical habitat for I. polyantha, P. debilis, 
and P. submutica was published on the same date (76 FR 45078). Our 
notice of availability for the DEA and draft environmental assessment 
was published on March 27, 2012 (77 FR 18157). For other previous 
Federal actions, please see our final listing rule (76 FR 45054).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for Ipomopsis polyantha, Penstemon 
debilis, and Phacelia submutica during two comment periods. The first 
comment period associated with the publication of the proposed critical 
habitat rule (76

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FR 45078) opened on July 27, 2011, and closed on September 26, 2011. We 
also requested comments on the proposed critical habitat designation 
and associated DEA during a comment period that opened March 27, 2012, 
and closed on April 26, 2012 (77 FR 18157). We did not receive any 
requests for a public hearing. We also contacted appropriate Federal, 
State, and local agencies; scientific organizations; and other 
interested parties and invited them to comment on the proposed rule and 
DEA during these comment periods.
    During the first comment period, we received six comment letters 
directly addressing the proposed critical habitat designation. Four 
comment letters were received between the two comment periods. During 
the second comment period, we received nine comment letters addressing 
the proposed critical habitat designation, the DEA, or the draft 
environmental assessment. All substantive information provided during 
both comment periods has either been incorporated directly into this 
final determination or are addressed below. Comments received were 
grouped into 23 general categories specifically relating to the 
proposed critical habitat designation for Ipomopsis polyantha, 
Penstemon debilis, and Phacelia submutica, and are addressed in the 
following summary and incorporated into the final rule as appropriate. 
We received several comments on our final listing determination (76 FR 
45054; July 27, 2011), but are not addressing those comments because 
they do not apply to this determination.

Peer Review

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

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

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

[[Page 48372]]

    The FEA considers effects within CHUs incrementally, with the most 
stringent project modifications within 328-ft (100-m) of plants, more 
moderate measures from 328 to 984 ft (100 to 300 m), and measures to 
protect pollinators and habitat beyond 984 ft (300 m) (Industrial 
Economics, Inc. 2012, pp. ES-5, 2-9, 3-14, 4-2). These project 
modification distances are based on our draft projection of what 
section 7 consultations may consider for these three plants (Service 
2012a, pp. 1-28). These distances are based on potential effects from 
disturbances including dust, pollutants, changes in erosion and 
sedimentation, habitat degradation, an increase in nonnative species, 
and increased fire risk, among others.
    Given the lack of species-specific studies, and the relatively 
recent (in the last 10 to 15 years) disturbance caused by oil and gas 
development, we conducted an extensive literature review on effects 
from disturbances, as well as from habitat fragmentation. To date, we 
have reviewed 45 papers that evaluate the relationship between distance 
from a disturbance to the intensity of that disturbance, from a wide 
array of disturbances and in a wide array of ecosystems (Service 2012a, 
pp. B-3 to B-4). From this review, we have found effects extending from 
33 ft (10 m) to over 6,562 ft (2,000 m), but with the majority of 
effects concentrated in the first several hundred meters (Service 
2012a, pp. B-3 to B-4). From this, and in conjunction and coordination 
with others, we have developed the 328-ft (100-m) and 984-ft (300-m) 
draft guidelines for effect determinations in section 7 consultations 
related to all plant species in Colorado (Service 2012a, pp. 1-28), 
which were used in the DEA (Industrial Economics, Inc. 2012, pp. ES-5, 
2-9, 3-14, 4-2). In combination, we also have reviewed 74 papers 
looking at the effects of habitat fragmentation on a wide array of 
plants and in a wide array of ecosystems (Service 2012a, pp. B-5 to B 
11).
    We recognize that the availability of more species-specific 
information evaluating the effects of disturbances, such as those from 
oil and gas development, may have helped us more accurately delineate 
critical habitat. There are ongoing studies on how disturbances are 
affecting six rare plants in Western Colorado and Eastern Utah, which 
are already listed under the Act (BIO-Logic 2010, pp. 1-9; Pitts et al. 
2010, pp. 1-7; BIO-Logic 2011, pp. 1-10). However, much of the oil and 
gas development in the areas where these plants are found is recent 
and, given that the effects from habitat fragmentation and degradation 
can take many generations to be realized (Aguilar et al. 2008, p. 
5183), initial studies may not show these effects. These studies may 
need to be done repeatedly in increments of 20 years or more. 
Compounding the problem, rare plants are inherently difficult to sample 
because of small populations and corresponding small sample sizes.

Comments From the State of Colorado

    Comments received from the State (specifically the Colorado Natural 
Areas Program (CNAP)) regarding the proposal to designate critical 
habitat for Ipomopsis polyantha, Penstemon debilis, and Phacelia 
submutica are addressed below.
    (6) Comments on Ipomopsis polyantha Unit 3, Pagosa Springs: The 
State commented that both a State Land Board (SLB) parcel and a State 
Wildlife Area fall within the boundaries of this unit. They informed us 
that the SLB has signed and is implementing a rare plant environmental 
review policy that will assure any ground-disturbing projects or major 
land use changes will not impact I. polyantha. Because this policy 
would provide more protection than the critical habitat designation 
(since plants are afforded few protections on State lands), the State 
requested that the SLB parcel be excluded from the critical habitat 
designation. The State did not request that the State Wildlife Area be 
excluded from critical habitat.
    Our Response: We have reviewed the Colorado SLB Procedures for Rare 
Plant Environmental Review for Development Projects and Land Use 
Changes (State Board of Land Commissioners 2012, 3 pp.) that began 
being implemented on April 19, 2012. These procedures formalize SLB's 
practice of engaging the CNAP to ensure that projects on SLB lands move 
forward in a manner protective of rare plants. We commend the SLB and 
CNAP for their proactive efforts to conserve rare plants in the State 
of Colorado. This rare plant environmental review policy will provide 
protections for the plant on SLB lands for all projects, not just 
projects involving a Federal action (such as funding or permitting). 
However, we could find no tangible benefits to exclusion from critical 
habitat, as Federal activities on these lands that would invoke the 
protective standards for critical habitat are expected to be rare. The 
number of acres involved (110 ac (44 ha)) is relatively small and 
included within critical habitat for pollinator protection (the species 
is currently not present on the site). Thus, we do not believe that 
there are any benefits of exclusion that would outweigh the benefits of 
inclusion. We look forward to cooperating further with the State on 
Ipomopsis polyantha conservation and recovery at all these sites.
    (7) Comments on exclusions and the management of Penstemon debilis 
on Oxy lands in Unit 3, Mount Callahan: Based on the success of ongoing 
conservation actions, the State commented that they support excluding 
all Oxy lands within this CHU (Unit 3, Mount Callahan). To support this 
exclusion, they are expanding the existing Colorado Natural Areas (CNA) 
agreement to include the Mount Logan Mine area, developing best 
management practices (BMPs) for habitat adjacent to the CNA to protect 
pollinators and habitat, and conducting further surveys for P. debilis 
in suitable habitat and the protection of new populations, should they 
be located on Oxy lands. The State commended Oxy for their long-term 
voluntary efforts to protect P. debilis and discussed the BMPs in place 
for protection of P. debilis. The State emphasized it is important to 
recognize these voluntary efforts, encouraging private land efforts 
such as these now and into the future. The State also commented that 
these voluntary protections would lead to more conservation than the 
protections afforded by critical habitat.
    An additional commenter on behalf of Oxy also supported excluding 
all Oxy lands within the Penstemon debilis Unit 3, Mount Callahan. To 
support this exclusion, Oxy has agreed to expand the CNA agreement to 
include the Mount Logan Mine area (totaling roughly 762 ac (308 ha)), 
develop BMPs to provide protection for habitats and pollinators in 
areas adjacent to the natural areas, conduct further surveys in 
suitable habitat and include newly discovered P. debilis populations 
with over 75 individuals in a Natural Area, and extend the termination 
clause on the CNA agreement from 90 days to 2 years. This commenter 
expressed concern that designating critical habitat on Oxy lands would 
unreasonably delay and complicate domestic energy production on Oxy 
lands and unnecessarily burden Oxy. The commenter stated that voluntary 
conservation efforts would provide better protections for P. debilis 
than the species would receive through the critical habitat designation 
because the Act only protects plants on private lands when there is a 
Federal action (such as Federal funding or a necessary Federal permit). 
The commenter also suggested that the proposed critical habitat 
designation did not appropriately recognize the efforts undertaken by 
Oxy, which may be

[[Page 48373]]

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

[[Page 48374]]

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

[[Page 48375]]

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

[[Page 48376]]

are flawed and the resulting estimates of the number of wells drilled 
is too low. Commenters stated that the fluctuating price of natural 
gas, technological advances, and discoveries of new producing 
formations throughout the Piceance Basin have contributed to changes in 
the level of current and future oil and gas development. Further 
commenters believe that it is not reasonable to assume that the number 
of future wells will be evenly distributed within each county based on 
the historic distribution of wells.
    Our Response: The DEA acknowledges that the most significant source 
of uncertainty in the analysis is the level and distribution of future 
oil and gas development. The economic analysis employs multiple 
scenarios of future oil and gas activity to account for this 
uncertainty. The DEA uses the best publicly available information on 
current and future oil and gas development, while recognizing that the 
number of actual wells drilled could vary greatly due to changing 
economic conditions and technological innovations.
    Stakeholders in the region indicated that future drilling activity 
within Mesa and Garfield Counties would be limited to areas within the 
Piceance and Paradox Basins and, therefore, the DEA restricts its 
projections to these areas. No better information is publicly available 
on the future distribution of wells within each county. Section 3.3.1 
of the FEA describes the oil and gas industry's concern that the number 
of gas wells may be underestimated in the DEA.
    (20) Comments on economic impacts to Federal, State, and local 
governments: Multiple commenters stated that the DEA should consider 
the impact to Federal, State, and local governments of the proposed 
critical habitat designation. In particular, these commenters asserted 
that the designation of critical habitat will lead to lost oil and gas 
development opportunities, which will in turn result in lost royalty 
and tax revenues to the Federal, State, and local governments.
    Our Response: In paragraph 97, the DEA states that ``if resource 
production is curtailed due to conservation efforts, then mineral 
owners could receive fewer royalties.'' However, the DEA goes on to 
explain that the Service is unlikely to recommend the prohibition of 
oil and gas activities from within critical habitat areas. Therefore, 
no loss in revenues to Federal, State, or local governments is 
anticipated.
    (21) Comments relating to oil and gas lease rights on Federal 
lands: Two commenters express concern that the proposed critical 
habitat designation may undermine or preempt existing oil and gas lease 
rights on Federal lands. The commenters state that BLM and the Service 
should not infringe on lease rights by overly restricting oil and gas 
activities.
    Our Response: The conservation efforts described in the DEA that 
are likely to be recommended by the Service during section 7 
consultation include efforts such as surveying, monitoring, temporary 
fencing, and weed control. Section 3.4.1 of the DEA describes the 
likely modifications related to oil and gas development in detail. 
These conservation efforts will allow for oil and gas development on 
Federal lands and therefore are not viewed as undermining oil and gas 
lease rights.
    (22) Comments on privately owned surface and mineral rights: One 
commenter stated that it is inappropriate for the DEA to ignore 
potential economic impacts associated with the proposed critical 
habitat designation in areas where both the surface and mineral rights 
are privately owned.
    Our Response: The DEA assumes that a Federal action will not exist 
for oil and gas development in areas where both the surface and mineral 
rights are privately owned. Therefore, project proponents are not 
required to consult with the Service in these areas. Section 3.5 of the 
DEA acknowledges that projects on privately-owned lands may have a 
Federal action if they require a permit from the U.S. Army Corps of 
Engineers under section 402 of the Clean Water Act.
    (23) Comments on oil and gas development in Penstemon debilis Unit 
3: One commenter indicated that the DEA underestimated the number of 
future well pads to be constructed within proposed Unit 3 for Penstemon 
debilis. The commenter states that the DEA accounts for three future 
multi-well pads, but in total 15 multi-well pads are estimated.
    Our Response: As described in paragraph 105, the DEA assumes that 
three multi-well pads will be drilled within the currently existing 
Mount Callahan and Mount Callahan Saddle Colorado Natural Areas within 
Unit 3 for Penstemon debilis. The remaining 12 well pads are located on 
privately owned property outside of the Natural Areas. The DEA assumes 
that there will be no Federal nexus for oil and gas development on 
privately owned land and thus no need for consultation with the 
Service. Therefore, there will be no impacts associated with the 
development of the additional 12 well pads outside of the Natural 
Areas. Paragraph 109 of the FEA explains the assumptions behind which 
well pads are included in the economic analysis in more detail.

Summary of Changes From Proposed Rule

Modifications to Critical Habitat Unit Boundaries

     Based on additional information which identified 
unsuitable and discontinuous habitat (Holtrop 2011, pp. 1-2), we 
refined our designation within Ipomopsis polyantha Unit 2 and reduced 
it from 784 to 564 ac (317 to 228 ha), and reduced Unit 4 from 1,180 to 
1,146 ac (478 to 464 ha). These changes were made based on comments 
from the USFS (Holtrop 2011), as well as site visits made by the 
Service during the summer of 2011. We notified the public of these 
changes in our notice of availability for the DEA and draft 
environmental assessment (77 FR 18157; March 27, 2012).
     We have modified the boundaries of Penstemon debilis Unit 
3, Mount Callahan. We have modified these boundaries based on the 
ongoing partnership and conservation efforts between Oxy and CNAP, an 
existing agreement between Oxy and CNAP to conserve P. debilis, and 
well-formulated plans to increase the scope of this agreement. We are 
excluding all Oxy lands in this unit. This is further discussed in our 
Exclusions section and in the Unit description. The Unit was reduced in 
size from 8,013 to 4,369 ac (3,243 to 1,769 ha). We announced that we 
were considering these areas for exclusion in the notice of 
availability for the DEA and draft environmental assessment (77 FR 
18157)
     Based on site surveys in 2011 that located more areas with 
Phacelia submutica plants, we have modified the boundaries of P. 
submutica Unit 6, Ashmead Draw; Unit 7, Baugh Reservoir; and Unit 9, 
Anderson Gulch (Langton 2010a, spatial data; CNHP 2012b). Unit 6 
increased from 1,220 to 1,276 ac (494 to 516 ha); Unit 7 increased from 
28 to 430 ac (12 to 174 ha); Unit 9 increased from 310 to 341 ac (122 
to 138 ha). We notified the public of these increases in our Notice of 
Availability for the DEA and draft environmental assessment (77 FR 
18157; March 27, 2012).

Modification to Primary Constituent Elements

     We revised the PCE for Penstemon debilis regarding habitat 
for pollinators to accommodate the mud-nesting habits of the wasp, 
Pseudomasarid vespoides,

[[Page 48377]]

based on information provided by a peer reviewer (Tepedino 2011, p. 1).
     We added to the PCE for Penstemon debilis in order to 
further describe an additional necessary Penstemon species (P. 
caespitosa) for support of pollinators and connectivity between sites, 
based on information provided by a peer reviewer (Tepedino 2011, p. 2).

Clarifications in Our Criteria Used To Identify Critical Habitat

     We have added language to clarify our reasoning for 
designation of pollinator areas.
     We have added language to clarify our designation of 
unoccupied units for Penstemon debilis.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) 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
    (a) Essential to the conservation of the species and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination by the Secretary 
that such areas are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
all methods and procedures that are necessary to bring an endangered or 
threatened species to the point at which the measures provided pursuant 
to 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, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated loss.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
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 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 obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify those physical or biological features 
that are essential to the conservation of the species (such as space, 
food, cover, and protected habitat). In identifying those physical and 
biological features within an area, we focus on the principal 
biological or physical constituent elements (PCEs such as roost sites, 
nesting grounds, seasonal wetlands, water quality, tide, soil type) 
that are essential to the conservation of the species. PCEs are those 
specific elements of physical or biological features that provide for a 
species' life-history processes and are essential to the conservation 
of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in 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. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range 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 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 are determining 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, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. 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 needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) the prohibitions of section 9 of the Act if actions 
occurring in these areas may affect the species. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. These protections and conservation tools will continue to 
contribute to recovery of

[[Page 48378]]

these species. 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 (HCPs), or other species conservation 
planning efforts if new information available at the time of these 
planning efforts calls for a different outcome.

Physical or Biological Features

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

[[Page 48379]]

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

[[Page 48380]]

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

[[Page 48381]]

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

[[Page 48382]]

Community and Competitive Ability'' and ``Soils'' sections discussed 
above.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
    Reproduction and Seed Banks--We do not yet understand the 
pollination and seed dispersal mechanisms of Phacelia submutica. 
Pollinators have not been observed visiting the flowers of P. 
submutica. Currently, it is believed that pollinators may not be 
required for reproduction because of the minute flower size, a lack of 
obvious pollinators, and because the reproductive parts are hidden 
within the petals. We also do not understand how seeds are dispersed. 
Seed banks are established where seeds fall into the cracks of shrink-
swell clay (O'Kane 1988, p. 462). We recognize that habitat conducive 
for successful reproduction is a physical or biological feature for P. 
submutica. However, we do not understand more specifically what 
features are important for this reproduction. In addition, seed banks 
are especially important for annual species that may not emerge when 
climatic conditions are unfavorable (Meyer et al. 2005, pp. 15-16, 21; 
Levine et al. 2008, pp. 795-806). For this reason, we identify 
maintaining the seed bank, through moist years where the plant 
successfully reproduces at regular intervals as a physical or 
biological feature for P. submutica. We lack further information on how 
long-lived seeds are in the seed bank and at what intervals the seed 
bank needs to be replenished to provide specifics but are hopeful that 
ongoing research will assist in answering some of these questions.
Habitats Protected from Disturbance or Representative of the Historic 
Geographical and Ecological Distributions of the Species
    Disturbance Regime--The steeper clay barrens where Phacelia 
submutica is sometimes found experience some erosion, and the shrinking 
and swelling of clay soils creates a continuous disturbance (Ladyman 
2003, p. 16). Phacelia submutica has adapted to these light to moderate 
disturbances, although occasionally plants are pushed out of the 
shrinking or swelling soils and die (O'Kane 1987, p. 20). Clay soils 
are relatively stable when dry but are extremely vulnerable to 
disturbances when wet (Rengasmy et al. 1984, p. 63). Phacelia submutica 
has evolved with some light natural disturbances, mostly in the form of 
erosion and the shrink-swell process. Heavy disturbances, and even 
light disturbances when soils are wet, could impact the species and its 
seed bank. Soil compaction alters the shrink-swell cycle of the soil, 
altering hydrologic properties of the soil that may subsequently 
prevent P. submutica germination. These disturbances can include off-
highway vehicle (OHV) use, livestock and wild ungulate grazing, and 
activities associated with oil and gas development. Managing for an 
appropriate disturbance type or level can be difficult since we lack 
research to better quantify these measures. For the reasons discussed 
above, we identify an environment free from moderate to heavy 
disturbances when soils are dry and free from all disturbances when 
soils are wet to be a physical or biological feature for P. submutica.

Primary Constituent Elements for Ipomopsis polyantha, Penstemon 
debilis, and Phacelia submutica

    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of Ipomopsis polyantha, Penstemon debilis, and Phacelia 
submutica in areas occupied at the time of listing, focusing on the 
features' PCEs. We consider PCEs to be the elements of physical or 
biological features that provide for a species' life-history processes 
and are essential to the conservation of the species.

Ipomopsis polyantha

    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the PCEs specific to 
Ipomopsis polyantha are:
    (i) Mancos shale soils.
    (ii) Elevation and climate. Elevations from 6,400 to 8,100 ft 
(1,950 to 2,475 m) and current climatic conditions similar to those 
that historically occurred around Pagosa Springs, Colorado. Climatic 
conditions include suitable precipitation; cold, dry springs; and 
winter snow.
    (iii) Plant Community.
    a. Suitable native plant communities (as described in b. below) 
with small (less than 100 ft\2\ (10 m\2\) or larger (several hectares 
or acres) barren areas with less than 20 percent plant cover in the 
actual barren areas.
    b. Appropriate native plant communities, preferably with plant 
communities reflective of historical community composition, or altered 
habitats which still contain components of native plant communities. 
These plant communities include:
    i. Barren shales,
    ii. Open montane grassland (primarily Arizona fescue) understory at 
the edges of open Ponderosa pine, or
    iii. Clearings within the Ponderosa pine/Rocky Mountain juniper and 
Utah juniper/oak communities.
    (iv) Habitat for pollinators.
    a. Pollinator ground and twig nesting areas. Nesting and foraging 
habitats suitable for a wide array of pollinators and their life 
history and nesting requirements. A mosaic of native plant communities 
and habitat types generally would provide for this diversity.
    b. Connectivity between areas allowing pollinators to move from one 
site to the next within each plant population.
    c. Availability of other floral resources, such as other flowering 
plant species that provide nectar and pollen for pollinators. Grass 
species do not provide resources for pollinators.
    d. A 3,280-ft (1,000-m) area beyond occupied habitat to conserve 
the pollinators essential for plant reproduction.
    (v) Appropriate disturbance regime.
    a. Appropriate disturbance levels--Light to moderate, or 
intermittent or discontinuous disturbance.
    b. Naturally maintained disturbances through soil erosion, or 
human-maintained disturbances, that can include light grazing, 
occasional ground clearing, and other disturbances that are not severe 
or continual.
    With this designation of critical habitat, we identify the physical 
and biological features essential to the conservation of the species 
through the identification of the PCEs sufficient to support the life-
history processes of the species. Two units designated as critical 
habitat are currently occupied by Ipomopsis polyantha and contain the 
PCEs to support the life-history needs of the species.
    Because two populations do not offer adequate redundancy for the 
survival and recovery of Ipomopsis polyantha, we have determined that 
unoccupied areas are essential for the conservation of the species. Two 
additional units designated as critical habitat are currently 
unoccupied by I. polyantha. We consider these units essential for the 
conservation of the species, as discussed below under ``Special 
Management Considerations.'' In addition, we determine that the 
unoccupied units contain the PCEs necessary to support the life-history 
needs of the species.

Penstemon debilis

    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the PCEs specific to 
Penstemon debilis are:
    (i) Suitable Soils and Geology.

[[Page 48383]]

    a. Parachute Member and the Lower part of the Green River 
Formation.
    b. Appropriate soil morphology characterized by a surface layer of 
small to moderate shale channers (small flagstones) that shift 
continually due to the steep slopes and below a weakly developed 
calcareous, sandy to loamy layer with 40 to 90 percent coarse material.
    (ii) Elevation and climate. Elevations from 5,250 to 9,600 ft 
(1,600 to 2,920 m). Climatic conditions similar to those of the 
Mahogany Bench, including suitable precipitation and temperatures.
    (iii) Plant Community.
    a. Barren areas with less than 10 percent plant cover.
    b. Presence of other oil shale endemics, which can include: 
Mentzelia rhizomata, Thalictrum heliophilum, Astragalus lutosus, 
Lesquerella parviflora, Penstemon osterhoutii, and Festuca dasyclada.
    c. Presence of Penstemon caespitosa for support of pollinators and 
connectivity between sites.
    (iv) Habitat for pollinators.
    a. Pollinator ground, twig, and mud nesting areas. Nesting and 
foraging habitats suitable for a wide array of pollinators and their 
life-history and nesting requirements. A mosaic of native plant 
communities and habitat types generally would provide for this 
diversity (see Plant Community above). These habitats can include areas 
outside of the soils identified in Suitable Soils and Geology.
    b. Connectivity between areas allowing pollinators to move from one 
population to the next within units.
    c. Availability of other floral resources, such as other flowering 
plant species that provide nectar and pollen for pollinators. Grass 
species do not provide resources for pollinators.
    d. A 3,280-ft (1,000-m) area beyond occupied habitat to conserve 
the pollinators essential for plant reproduction.
    (v) High levels of natural disturbance.
    a. Very little or no soil formation.
    b. Slow to moderate, but constant, downward motion of the oil shale 
that maintains the habitat in an early successional state.
    With this designation of critical habitat, we identify the physical 
and biological features essential to the conservation of the species 
through the identification of the PCEs sufficient to support the life-
history processes of the species. Two units designated as critical 
habitat are currently occupied by Penstemon debilis and contain the 
PCEs to support the life-history needs of the species. Two additional 
units designated as critical habitat are currently unoccupied by P. 
debilis. Currently occupied areas do not adequately provide for the 
conservation of the species, because of a lack of redundancy. We 
consider these units essential for the conservation of the species, as 
discussed below under ``Special Management Considerations.'' In 
addition, we determine the unoccupied units contain the PCEs necessary 
to support the life-history needs of the species.

Phacelia submutica

    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the PCEs specific to Phacelia 
submutica are:
    (i) Suitable Soils and Geology.
    a. Atwell Gulch and Shire members of the Wasatch formation.
    b. Within these larger formations, small areas (from 10 to 1,000 
ft\2\ (1 to 100 m\2\)) on colorful exposures of chocolate to purplish 
brown, light to dark charcoal gray, and tan clay soils. These small 
areas are slightly different in texture and color than the similar 
surrounding soils. Occupied sites are characterized by alkaline (pH 
range from 7 to 8.9) soils with higher clay content than similar nearby 
unoccupied soils.
    c. Clay soils that shrink and swell dramatically upon drying and 
wetting and are likely important in the maintenance of the seed bank.
    (ii) Topography. Moderately steep slopes, benches, and ridge tops 
adjacent to valley floors. Occupied slopes range from 2 to 42 degrees 
with an average of 14 degrees.
    (iii) Elevation and climate.
    a. Elevations from 4,600 to 7,450 ft (1,400 to 2,275 m).
    b. Climatic conditions similar to those around DeBeque, Colorado, 
including suitable precipitation and temperatures. Annual fluctuations 
in moisture (and probably temperature) greatly influences the number of 
Phacelia submutica individuals that grow in a given year and are thus 
able to set seed and replenish the seed bank.
    (iv) Plant Community.
    a. Small (from 10 to 1,000 ft\2\ (1 to 100 m\2\)) barren areas with 
less than 20 percent plant cover in the actual barren areas.
    b. Presence of appropriate associated species that can include (but 
are not limited to) the natives Grindelia fastigiata, Eriogonum 
gordonii, Monolepis nuttalliana, and Oenothera caespitosa. Some 
presence of, or even domination by, invasive nonnative species, such as 
Bromus tectorum, may occur, as Phacelia submutica may still be found 
there.
    c. Appropriate plant communities within the greater pinyon-juniper 
woodlands that include:
    i. Clay badlands within the mixed salt desert scrub, or
    ii. Clay badlands within big sagebrush shrublands.
    (v) Maintenance of the Seed Bank and Appropriate Disturbance 
Levels.
    a. Within suitable soil and geologies, undisturbed areas where seed 
banks are left undamaged.
    b. Areas with light disturbance when dry and no disturbance when 
wet.
    Phacelia submutica has evolved with some light natural 
disturbances, including erosional and shrink-swell processes. However, 
human disturbances that are either heavy or light when soils are wet 
could impact the species and its seed bank. Because we do not 
understand how the seed bank may respond to disturbances, more heavily 
disturbed areas should be evaluated, over the course of several years, 
for the species' presence.
    With this designation of critical habitat, we identify the physical 
and biological features essential to the conservation of the species 
through the identification of the PCEs sufficient to support the life-
history processes of the species. All units and subunits designated as 
critical habitat are currently occupied by Phacelia submutica and 
contain the PCEs sufficient to support the life-history needs of the 
species.
Special Management Considerations or Protections
    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features that are essential to the conservation of 
the species and which may require special management considerations or 
protection. All areas designated as critical habitat will require some 
level of management to address the current and future threats to the 
physical and biological features essential to the conservation of the 
three plants. In all units, special management will be required to 
ensure that the habitat is able to provide for the growth and 
reproduction of the species.
    A detailed discussion of threats to Ipomopsis polyantha, Penstemon 
debilis, and Phacelia submutica and their habitat can be found in the 
final listing rule (76 FR 45054). The primary threats impacting the 
physical and biological features essential to the conservation of I. 
polyantha, P. debilis, and P. submutica that may require

[[Page 48384]]

special management considerations or protection within CHUs include, 
but are not limited to, the following:

Ipomopsis polyantha

    The features essential to the conservation of this species (plant 
community and competitive ability, elevation, soils, climate, 
reproduction, and disturbance regime) may require special management 
considerations or protection to reduce threats. Ipomopsis polyantha's 
highly restricted soil requirements and geographic range make it 
particularly susceptible to extinction at any time from 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 (76 FR 45054). Over 86 percent of the species' occupied habitat 
is on private land with no limits on development (Service 2011c, p. 2).
    Special management considerations or protections are required 
within critical habitat areas to address these threats. Management 
activities that could ameliorate these threats include (but are not 
limited to): Introducing new Ipomopsis polyantha populations; 
establishing permanent conservation easements or acquiring land to 
protect the species on private lands; developing zoning regulations 
that could serve to protect the species; establishing conservation 
agreements on private and Federal lands to identify and reduce threats 
to the species and its features; eliminating the use of smooth brome 
and other competitive species in areas occupied by the species; 
promoting and encouraging habitat restoration; developing other 
regulatory mechanisms to further protect the species; placing roads and 
utility lines away from the species; minimizing heavy use of habitat by 
livestock; and minimizing habitat fragmentation.
    These management activities would protect the PCEs for the species 
by preventing the loss of habitat and individuals, maintaining or 
restoring plant communities and natural levels of competition, 
protecting the plant's reproduction by protecting its pollinators, and 
managing for appropriate levels of disturbance.

Penstemon debilis

    The features essential to the conservation of this species (plant 
community and competitive ability, elevation, slope, soils, climate, 
reproduction, and disturbance regime) may require special management 
considerations or protection to reduce threats. 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, and inadequacy of existing regulatory 
mechanisms (76 FR 45054).
    Special management considerations or protections are required 
within critical habitat areas to address these threats. Management 
activities that could ameliorate these threats include (but are not 
limited to): The introduction of new Penstemon debilis populations; the 
establishment of permanent conservation easements or the acquisition of 
land to protect the species on private lands; the continuation and 
adequate management of P. debilis through the CNA Agreement with Oxy 
(see Exclusions section below); regulations and/or agreements that 
balance conservation with energy development in areas that would affect 
the species and its pollinators; the designation of protected areas 
with specific provisions and protections for the plant; the elimination 
or avoidance of activities that alter the morphology and status of the 
shale slopes; and avoidance of placing roads in habitats that would 
affect the plant or its pollinators.
    These management activities would protect the PCEs for the species 
by preventing the loss of habitat and individuals, maintaining or 
restoring plant communities and natural levels of competition, 
protecting the plant's reproduction by protecting its pollinators, and 
managing for appropriate levels and types of disturbance.

Phacelia submutica

    The features essential to the conservation of this species (plant 
community and competitive ability, elevation, topography, soils, 
climate, reproduction and seed bank, and disturbance regime) may 
require special management considerations or protection to reduce 
threats. Specifically, the clay soils on which Phacelia submutica are 
found are relatively stable when dry but are extremely vulnerable to 
disturbances when wet. The current range of P. submutica is subject to 
human-caused modifications from natural gas exploration and production 
with associated expansion of pipelines, roads, and utilities; 
development within the Westwide Energy Corridor; increased access to 
the habitat by OHVs; soil and seed disturbance by livestock and other 
human-caused disturbances; nonnative invasive species including Bromus 
tectorum and Halogeton glomeratus (halogeton); and inadequacy of 
existing regulatory mechanisms (76 FR 45054).
    Special management considerations or protections are required 
within critical habitat areas to address these threats. Management 
activities that could ameliorate these threats include (but are not 
limited to): Development of regulations and agreements to balance 
conservation with energy development and minimize its effects in areas 
where the species resides; the establishment of additional protection 
areas that provide greater protections for the species; minimization of 
OHV use; placement of roads and utility lines away from the species and 
its habitat; minimization of livestock use or other human-caused 
disturbances that disturb the soil or seeds; and the minimization of 
habitat fragmentation.
    These management activities would protect the PCEs for the species 
by preventing the loss of habitat and individuals, protecting the 
plant's habitat and soils, and managing for appropriate levels of 
disturbance.
Criteria Used To Identify Critical Habitat
    As required by section 4(b)(2) of the Act, we used the best 
scientific data available to designate critical habitat. We reviewed 
available information pertaining to the habitat requirements of this 
species. In accordance with the Act and its implementing regulation at 
50 CFR 424.12(e), we considered whether designating additional areas--
outside those currently occupied as well as those occupied at the time 
of listing--are necessary to ensure the conservation of the species. We 
are designating critical habitat in areas within the geographical area 
occupied by Ipomopsis polyantha, Penstemon debilis, and Phacelia 
submutica at the time of listing in 2011. We also are designating 
specific areas outside the geographical area occupied by I. polyantha 
and P. debilis at the time of listing because we have determined that 
such areas are essential for the conservation of the species. All units 
are designated based on sufficient elements of physical and biological 
features being present to support Ipomopsis polyantha, Penstemon 
debilis, and Phacelia submutica life-history processes.
    Small populations and plant species with limited distributions, 
like those of Ipomopsis polyantha and Penstemon debilis, are vulnerable 
to relatively minor environmental disturbances (Given 1994, pp. 66-76; 
Frankham 2005, pp. 135-136), and are subject to the loss

[[Page 48385]]

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

Ipomopsis polyantha

    In accordance with the Act and its implementing regulation at 50 
CFR 424.12(e), we consider whether designating additional areas--
outside those currently occupied as well as those occupied at the time 
of listing--are necessary to ensure the conservation of the species. 
For Ipomopsis polyantha, we are designating critical habitat in areas 
within the geographical area occupied by the species at the time of 
listing in 2011. We also are designating specific areas outside the 
geographical area occupied by the species at the time of listing, 
because such areas are essential for the conservation of the species.
    Occupied critical habitat was identified by delineating all known 
sites within a population (CNHP 2012a, pp. 1, 6, 11), placing a minimum 
convex polygon around the perimeter of all sites, and then adding an 
additional 3,280-ft (1,000-m) area for pollinator habitat. The distance 
that pollinators can travel is significant to plants including 
Ipomopsis polyantha because pollen transfer and seed dispersal are the 
only mechanisms for genetic exchange. Both pollen and seed dispersal 
can vary widely by plant species (Ellstrand 2003, p. 1164). In general, 
pollinators will focus on small areas where floral resources are 
abundant; however, occasional longer distance pollination will occur, 
albeit infrequently. No research has been conducted on flight distances 
of I. polyantha's pollinators. Therefore, we rely on general pollinator 
travel distances described in the literature.

[[Page 48386]]

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

[[Page 48387]]

    We are designating as critical habitat lands that we have 
determined are occupied at the time of listing and contain sufficient 
physical or biological features to support life-history processes 
essential for the conservation of Ipomopsis polyantha and lands outside 
of the geographical area occupied at the time of listing that we have 
determined are essential for the conservation of I. polyantha.
    We designated four units based on sufficient elements of physical 
or biological features being present to support I. polyantha life 
processes. All units contain all of the identified elements of physical 
or biological features and supported multiple life processes.

Penstemon debilis

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

[[Page 48388]]

Service 2008, spatial data; Service 2011a, p. 2), and with the ``Rocky 
Mountain cliff and canyon'' landcover classification (NatureServe 2004, 
spatial data). We chose the ``Rocky Mountain cliff and canyon'' 
landcover classification because 75 percent of all the known P. debilis 
locations fall within this mapping unit (and all sites outside are 
either on artificially created habitats or are directly below this 
classification where both oil shale substrate and P. debilis seed 
dispersal down drainage constantly occurs). We did not include the 
lower elevations currently occupied by P. debilis in our minimum convex 
polygon edges that we used for delineating pollinator habitat (step 2) 
or in our potential habitat analysis (step 3), because there are few 
plants in these more ephemeral wash-out habitat types and because these 
unusual habitat types do not seem to represent the species' typical 
habitat requirements. However, it should be noted that these unusual 
sites are still included within the boundaries of Unit 3 (as delineated 
by step 2).
    (4) From this potential habitat analysis (as delineated in step 3), 
we took the two continuous bands of potential habitat that include the 
areas where Penstemon debilis is currently found and added them to our 
existing polygons, including pollinator habitat (as delineated in step 
2). We did this by again creating a minimum convex polygon. This 
condensed all known populations into two currently occupied CHUs (Units 
3 and 4).
    (5) For currently unoccupied CHUs, we identified two areas where 
our potential habitat was intersected with Federal ownership (COMaP 
version 8--Theobald et al. 2010, spatial data). Our reasoning for 
identifying unoccupied units is described above.
    We are designating as critical habitat lands that we have 
determined were occupied at the time of listing and contain sufficient 
physical or biological features to support life-history processes 
essential for the conservation of Penstemon debilis, and lands outside 
of the geographical area occupied at the time of listing that we have 
determined are essential for the conservation of P. debilis.
    Four units were designated based on sufficient elements of physical 
or biological features being present to support P. debilis life 
processes. All units contained all of the identified elements of 
physical or biological features and supported multiple life processes.

Phacelia submutica

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

[[Page 48389]]

critical habitat boundaries shown on the maps of this final rule have 
been excluded by text in the rule and are not designated as critical 
habitat. Therefore, a Federal action involving these lands will not 
trigger section 7 consultation with respect to critical habitat and the 
requirement to avoid destruction and adverse modification unless the 
specific action would affect the physical or biological features in the 
adjacent critical habitat. In the case of Ipomopsis polyantha, because 
the plant is often found growing on partially developed sites, around 
buildings, or immediately adjacent to roads, we did not exclude 
buildings, pavement, and other structures.

Final Critical Habitat Designation

Ipomopsis polyantha

    We are designating four units as critical habitat for Ipomopsis 
polyantha. The critical habitat areas described below constitute our 
best assessment at this time of areas that meet the definition of 
critical habitat. Those four units are: (1) Dyke, (2) O'Neal Hill 
Special Botanical Area, (3) Pagosa Springs, and (4) Eight Mile Mesa. 
Table 1 shows the occupancy of the units.

Table 1--Occupancy of Ipomopsis polyantha by Designated Critical Habitat
                                  Units
------------------------------------------------------------------------
                                    Currently occupied? and occupied at
               Unit                           time of listing?
------------------------------------------------------------------------
1. Dyke..........................  Yes.
2. O'Neal Hill Special Botanical   No.
 Area.
3. Pagosa Springs................  Yes.
4. Eight Mile Mesa...............  No.
------------------------------------------------------------------------

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

                    Table 2--Designated Critical Habitat Units (CHUs) for Ipomopsis Polyantha
                             [Area estimates reflect all land within CHU boundaries]
----------------------------------------------------------------------------------------------------------------
         Critical habitat unit                 Land ownership                        Size of unit
----------------------------------------------------------------------------------------------------------------
1. Dyke................................  BLM.......................  42 ac (17 ha).
                                         Private...................  1,415 ac (573 ha).
                                         Archuleta County (County    5 ac (2 ha).
                                          Road right-of-ways
                                          (ROWs)).
                                         Colorado Dept. of           13 ac (5 ha).
                                          Transportation.
                                                                    --------------------------------------------
    Total for Dyke Unit................  ..........................  1,475 ac (597 ha).
2. O'Neal Hill Special Botanical Unit..  USFS-San Juan National      564 ac (228 ha).
                                          Forest.
3. Pagosa Springs......................  Town of Pagosa Springs....  599 ac (242 ha).
                                         Colorado Division of        28 ac (11 ha).
                                          Wildlife (CDOW).
                                         Private...................  5,560 ac (2,251 ha).
                                         Archuleta County (County    18 ac (7 ha).
                                          Road ROWs).
                                         Archuleta County (County    92 ac (37 ha).
                                          Land).
                                         Colorado Dept. of           50 ac (20 ha).
                                          Transportation (Highway
                                          ROWs).
                                         State Land Board (SLB)....  110 ac (44 ha).
                                                                    --------------------------------------------
    Total for Pagosa Spring Unit.......  ..........................  6,456 ac (2,613 ha).
4. Eight Mile Mesa.....................  USFS-San Juan National      1,146 ac (464 ha).
                                          Forest.
                                                                    --------------------------------------------
    Total..............................  ..........................  9,641 ac (3,902 ha).
----------------------------------------------------------------------------------------------------------------


    Note:  Area sizes may not sum due to rounding.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for Ipomopsis polyantha, below. 
The units are listed in order geographically west to east.
Unit 1: Dyke
    Unit 1, the Dyke Unit, consists of 1,475 ac (597 ha) of Federal and 
private lands. The Unit is located at the junction of U.S. Hwy 160 and 
Cat Creek Road (County Road 700) near the historic town of Dyke in 
Archuleta County, Colorado. Ninety-seven percent of this Unit is on 
private lands; of these private lands, 1 percent is within highway 
ROWs. Three percent is on Federal land managed by the BLM, through the 
Pagosa Springs Field Office of the San Juan Public Lands Center. This 
Unit is currently occupied.
    This Unit currently has all the physical and biological features 
essential to the conservation of the species including a collection of 
all three communities (barren shales, open montane grassland (primarily 
Arizona fescue) understory at the edges of open Ponderosa pine, or 
clearings within the Ponderosa pine and Rocky Mountain juniper and Utah 
juniper and oak communities), pockets of shale with little to no 
competition from other species, suitable elevational ranges from 6,720 
to 7,285 ft (2,048 to 2,220 m), Mancos shale soils, suitable climate, 
pollinators and habitat for these pollinators, and areas where the 
correct disturbance regime is present. Lands within this Unit are 
largely agricultural although some housing is present within the Unit. 
A large hunting ranch also falls within this Unit. While these lands 
currently have the physical and biological features essential to the 
conservation of Ipomopsis polyantha, because of a lack of cohesive 
management and protections, special management will be required to 
maintain these features in this Unit.

[[Page 48390]]

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

Penstemon debilis

    We are designating four units as critical habitat for Penstemon 
debilis. The critical habitat areas described below constitute our best 
assessment at this time of areas that meet the definition of critical 
habitat. Those four units are: (1) Brush Mountain, (2) Cow Ridge, (3) 
Mount Callahan, and (4)

[[Page 48391]]

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

 Table 3--Occupancy of Penstemon Debilis by Designated Critical Habitat
                                  Units
------------------------------------------------------------------------
                                    Currently occupied? and occupied at
               Unit                           time of listing?
------------------------------------------------------------------------
1. Brush Mountain................  No.
2. Cow Ridge.....................  No.
3. Mount Callahan................  Yes.
4. Anvil Points..................  Yes.
------------------------------------------------------------------------


                     Table 4--Designated Critical Habitat Units (CHUs) for Penstemon Debilis
                             [Area estimates reflect all land within CHU boundaries]
----------------------------------------------------------------------------------------------------------------
                                              Land ownership by type
    Critical habitat unit    --------------------------------------------------------        Size of unit
                                        Federal                     Private
----------------------------------------------------------------------------------------------------------------
1. Brush Mountain...........  1,437 ac (582 ha).........  0 ac (0 ha)...............  1,437 ac (582 ha).
2. Cow Ridge................  4,819 ac (1,950 ha).......  0 ac (0 ha)...............  4,819 ac (1,950 ha).
3. Mount Callahan...........  4,232 ac (1,713 ha).......  137 ac (55 ha)............  4,369 ac (1,768 ha).
4. Anvil Points.............  3,424 ac (1,386 ha).......  1,461 ac (591 ha).........  4,885 ac (1,977 ha).
                             -----------------------------------------------------------------------------------
    Total...................  13,912 ac (5,631 ha)......  1,598 ac (646 ha).........  15,510 ac (6,277 ha).
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

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

[[Page 48392]]

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

Phacelia submutica

    We are designating nine units as critical habitat for Phacelia 
submutica. The critical habitat areas described below constitute our 
best assessment at this time of areas that meet the definition of 
critical habitat. The nine units we designate as critical habitat are: 
(1) Sulphur Gulch, (2) Pyramid Rock, (3) Roan Creek, (4) DeBeque, (5) 
Mount Logan, (6) Ashmead Draw, (7) Baugh Reservoir, (8) Horsethief 
Mountain, and (9) Anderson Gulch. All units are currently occupied and 
were occupied at the time of listing. The approximate area of each CHU 
is shown in Table 5.

                                        Table 5--Designated Critical Habitat Units (CHUs) for Phacelia submutica
                                                [Area estimates reflect all land within CHU boundaries.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Land ownership by type
       Unit No./unit name       -------------------------------------------------------------------------------------------         Size of unit
                                            Federal                         State                        Private
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Sulphur Gulch...............  1,046 ac (423 ha)............  0 ac (0 ha).................  0 ac (0 ha).................  1,046 ac (423 ha)
2. Pyramid Rock................  15,429 ac (6,244 ha).........  0 ac (0 ha).................  1,892 ac (766 ha)...........  17,321 ac (7,010 ha)
3. Roan Creek..................  2 ac (1 ha)..................  0 ac (0 ha).................  52 ac (21 ha)...............  54 ac (22 ha)
4. DeBeque.....................  401 ac (162 ha)..............  0 ac (0 ha).................  129 ac (52 ha)..............  530 ac (215 ha)
5. Mount Logan.................  242 ac (98 ha)...............  0 ac (0 ha).................  35 ac (14 ha)...............  277 ac (112 ha)
6. Ashmead Draw................  1,110 ac (449 ha)............  0 ac (0 ha).................  166 ac (67 ha)..............  1,276 ac (516 ha)
7. Baugh Reservoir.............  169 ac (68 ha)...............  0 ac (0 ha).................  261 ac (106 ha).............  430 ac (174 ha)
8. Horsethief Mountain.........  3,614 ac (1,463 ha)..........  0 ac (0 ha).................  594 ac (240 ha).............  4,209 ac (1,703 ha)
9. Anderson Gulch..............  0 ac (0 ha)..................  192 ac (78 ha)..............  149 ac (60 ha)..............  341 ac (138 ha)
                                ------------------------------------------------------------------------------------------------------------------------
    Total......................  22,013 ac (8,908 ha).........  192 ac (78 ha)..............  3,278 ac (1,327 ha).........  25,484 ac (10,313 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

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

[[Page 48393]]

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

[[Page 48394]]

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

[[Page 48395]]

    Threats to Phacelia submutica and its habitat in this Unit include 
energy development, recreation (especially from OHV use), livestock and 
wild ungulate grazing and use, and nonnative invasive species, 
including Bromus tectorum and Halogeton glomeratus.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action that is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, Tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, Tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for Ipomopsis polyantha, 
Penstemon debilis, and Phacelia submutica. As discussed above, the role 
of critical habitat is to support the life-history needs of the species 
and provide for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the Ipomopsis polyantha, Penstemon debilis, and 
Phacelia submutica.
    For Ipomopsis polyantha these activities include, but are not 
limited to:
    (1) Actions that would lead to the destruction or alteration of the 
plants or their habitat; or actions that would result in continual or 
excessive disturbance or prohibit overland soil erosion on Mancos shale 
soils. Such activities could include, but are not limited to, removing 
soils to a depth that the seed bank has been removed, repeatedly 
scraping areas, repeated mowing, excessive grazing, continually driving 
vehicles across areas, permanent developments, the construction or 
maintenance of utility or road corridors, and ditching. These 
activities could remove the seed bank, reduce plant numbers by 
prohibiting reproduction, impede or accelerate beyond historical levels 
the natural or artificial erosion processes on which the plant relies 
(as described above in ``Physical and Biological Features''), or lead 
to the total loss of a site.
    (2) Actions that would result in the loss of pollinators or their 
habitat, such that Ipomopsis polyantha reproduction could be 
diminished. Such activities could include, but are not limited to, 
destroying ground or twig nesting habitat, habitat fragmentation that 
prohibits pollinator movements from one area to the next, spraying 
pesticides

[[Page 48396]]

that will kill pollinators, and eliminating other plant species on 
which pollinators are reliant for floral resources (this could include 
replacing native species that provide floral resources with grasses, 
which do not provide floral resources for pollinators). These 
activities could result in reduced fruit production for Ipomopsis 
polyantha, or increase the incidence of self-pollination, thereby 
reducing genetic diversity and seed production.
    (3) Actions that would result in excessive plant competition at 
Ipomopsis polyantha sites. Such activities could include, but are not 
limited to, revegetation efforts that include competitive nonnative 
invasive species such as Bromus inermis, Medicago sativa (alfalfa), 
Meliotus spp. (sweetclover); planting native species, such as Ponderosa 
pine, into open areas where the plant is found; and creating 
disturbances that allow nonnative invasive species to invade. These 
activities could cause I. polyantha to be outcompeted and subsequently 
either lost at sites, or reduced in numbers of individuals.
    For Penstemon debilis these activities include, but are not limited 
to:
    (1) Actions that would lead to the destruction or alteration of the 
plants or their habitat. Such activities could include, but are not 
limited to, activities associated with oil shale mining, including the 
mines themselves, pipelines, roads, and associated infrastructure; 
activities associated with oil and gas development, including 
pipelines, roads, well pads, and associated infrastructure; activities 
associated with reclamation activities, utility corridors, or 
infrastructure; and road construction and maintenance. These activities 
could lead to the loss of individuals, fragment the habitat, impact 
pollinators, cause increased dust deposition, introduce nonnative 
invasive species, and alter the habitat such that important downhill 
movement or the shale erosion no longer occurs.
    (2) Actions that would alter the highly mobile nature of the sites. 
Such activities could include, but are not limited to, activities 
associated with oil shale mining, including pipelines, roads, and 
associated infrastructure; activities associated with oil and gas 
development, including pipelines, roads, well pads, and associated 
infrastructure; activities associated with reclamation activities, 
utility corridors, or infrastructure; and road construction and 
maintenance. These activities could lead to increased soil formation 
and a subsequent increase in vegetation, alterations to the soil 
morphology, and the loss of Penstemon debilis plants and habitat.
    (3) Actions that would result in the loss of pollinators or their 
habitat, such that reproduction of Penstemon debilis could be 
diminished. Such activities could include, but are not limited to, 
destroying ground, twig, or mud nesting habitat; habitat fragmentation 
that prohibits pollinator movements from one area to the next; spraying 
pesticides that will kill pollinators; and eliminating other plant 
species on which pollinators are reliant for floral resources. These 
activities could result in reduced fruit production for P. debilis, or 
increase the incidence of self-pollination, thereby further reducing 
genetic diversity and reproductive potential.
    For Phacelia submutica these activities include, but are not 
limited to:
    (1) Actions that would lead to the destruction or alteration of the 
plants, their seed bank, or their habitat, or actions that would 
destroy the fragile clay soils where Phacelia submutica is found. Such 
activities could include, but are not limited to, activities associated 
with oil and gas development, including pipelines, roads, well pads, 
and associated infrastructure; utility corridors or infrastructure; 
road construction and maintenance; excessive OHV use; and excessive 
livestock grazing. Clay soils are most fragile when wet, so activities 
that occur when soils are wet are especially harmful. These activities 
could lead to the loss of individuals, fragment the habitat, impact 
pollinators, cause increased dust deposition, and alter the habitat 
such that important erosional processes no longer occur.
    (2) Actions that would result in excessive plant competition at 
Phacelia submutica sites. Such activities could include, but are not 
limited to, using highly competitive species in restoration efforts, or 
creating disturbances that allow nonnative invasive species, such as 
Bromus tectorum and Halogeton glomeratus, to invade. These activities 
could cause P. submutica to be outcompeted and subsequently either lost 
or reduced in numbers of individuals.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    No Department of Defense lands occur within the critical habitat 
designation. Therefore, we are not exempting lands from this final 
designation of critical habitat for Ipomopsis polyantha, Penstemon 
debilis, and Phacelia submutica pursuant to section 4(a)(3)(B)(i) of 
the Act.

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he

[[Page 48397]]

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

                        Table 7--Areas Excluded From Critical Habitat Designation by Unit
----------------------------------------------------------------------------------------------------------------
                                                                               Areas meeting     Areas excluded
                                                                               definition of      from critical
             Species                      Unit            Specific area      critical habitat     habitat in ac
                                                                                in ac (ha)            (ha)
----------------------------------------------------------------------------------------------------------------
Penstemon debilis...............  3, Mount Callahan..  Oxy lands..........            7,719 ac          3,350 ac
                                                                                    (3,124 ha)        (1,356 ha)
----------------------------------------------------------------------------------------------------------------

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

[[Page 48398]]

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

  Table 8--Incremental Impacts of the Critical Habitat Designation for Ipomopsis polyantha, Penstemon debilis, and Phacelia submutica by Species, Unit,
                                            and Activity (2012 Dollars, Assuming a 7 Percent Discount Rate).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Oil & gas -  Oil & gas -                  Agriculture                Species    Subtotal -   Subtotal -
   Unit              Unit name              Low-        High-    Transportation    & grazing    Recreation     mgmt        Low-        High-
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Critical Habitat Designation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Ipomopsis polyantha (Pagosa Skyrocket)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1...................  Dyke.....................           $0          $0         $9,370             $0           $0         $0       $9,370       $9,370
2...................  O'Neal Hill Special                  0           0              0              0        7,500          0        7,500        7,500
                       Botanical Area.
3...................  Pagosa Springs...........            0           0          3,330              0            0          0        3,330        3,330
4...................  Eight Mile Mesa..........            0           0              0              0        7,500          0        7,500        7,500
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Penstemon debilis (Parachute Beardtongue)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1...................  Brush Mountain...........       11,600     195,000              0              0            0          0       11,600      195,000
2...................  Cow Ridge................       35,500     599,000              0              0            0          0       35,500      599,000
3...................  Mount Callahan...........       10,900     184,000              0              0        2,130          0       13,000      186,000
4...................  Anvil Points.............        8,470     143,000              0              0        2,130          0       10,600      145,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                          Phacelia submutica (DeBeque Phacelia)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1...................  Sulphur Gulch............       37,300     629,000              0          1,590        1,060          0       39,900      632,000
2...................  Pyramid Rock.............      627,000  10,600,000              0          1,590        1,060          0      630,000   10,600,000
3...................  Roan Creek...............          398       6,720              0              0            0          0          398        6,720
4...................  DeBeque..................       13,100     221,000              0          1,590        1,060          0       15,800      224,000
5...................  Mount Logan..............            0           0              0          1,590        2,130          0        3,720        3,720
6...................  Ashmead Draw.............       44,700     755,000              0          1,590        1,060          0       47,400      757,000
7...................  Baugh Reservoir..........       18,200     307,000              0          1,590        1,060          0       20,800      310,000
8...................  Horsethief Mountain......       60,200   1,020,000              0         43,600        5,820          0      110,000    1,070,000
9...................  Anderson Gulch...........        1,150      19,500              0              0            0          0        1,150       19,500
                      Activity Subtotal........      868,000  14,700,000         12,700         53,200       32,500          0      967,000   14,800,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Areas Excluded
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Penstemon debilis
--------------------------------------------------------------------------------------------------------------------------------------------------------
3...................  Mount Callahan...........  ...........           0              0              0            0          0  ...........            0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Totals may not sum due to rounding.


[[Page 48399]]

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

[[Page 48400]]

stipulations for noxious weed control and revegetation efforts. The 
BMPs also limit collection of P. debilis (CNAP and Oxy 2012, Appendix 
E).
    As further evidence of the partnership between Oxy and CNAP and 
their commitment to the conservation of P. debilis, additional general 
BMPs were recently developed for the CNAs and adjacent lands, extending 
benefits to the species beyond the borders of the CNA designation. 
These BMPs include guidelines to:
    (1) limit surface disturbance by transporting water by pipelines 
instead of trucks, reducing visits to well-sites, maximizing drilling 
technology through high-efficiency rigs, directional drilling, multi-
well pads, coiled-tubing unit rigs to minimize disturbance, and 
limiting the number of rig moves and traffic;
    (2) conduct dust abatement activities during the growing season 
(April to September);
    (3) reclaim disturbances and re-vegetate areas with native plants, 
including forb species that would provide resources for pollinators at 
optimal times for seed germination and establishment, and track the 
success of this seeding with follow up seeding if necessary;
    (4) ensure that any straw bales used are weed free;
    (5) increase pollinator presence by creating nesting substrates;
    (6) conduct surveys in all accessible suitable habitat within 330 
ft (100 m) of a project disturbance;
    (7) protect any new populations of Penstemon debilis that are 
located, Oxy and CNAP would then protect these populations, with more 
than 75 individuals, through subsequent CNAs; and
    (8) conduct noxious weed control that limits the use of herbicides 
within specific distances of occupied habitat, but that also protects 
occupied habitat from invasive plants (CNAP and Oxy 2012, Appendix F).
Benefits of Inclusion
    If these private lands were included in the designation, section 
(7)(a)(2) consultations would occur on private (Oxy) lands only if 
there were proposed activities involving a Federal action. A Federal 
action would most likely arise for drainage crossings (Army Corps 
permits); other instances of a Federal action are unlikely because any 
Federal actions or funding would be extremely limited on lands owned by 
Oxy. There are no Federal minerals below Oxy lands that were proposed 
as critical habitat. Drainage crossings are generally far removed from 
Penstemon debilis habitat, making this action less likely.
    By including these lands in the critical habitat designation, it 
would be more widely known that these areas have the PCEs for Penstemon 
debilis.
Benefits of Exclusion
     Cooperative efforts for the management and conservation of 
Penstemon debilis will continue, and ongoing conservation partnerships 
will be strengthened.
     Oxy will continue implementing conservation actions for 
Penstemon debilis on their lands through CNA Agreement and BMPs. This 
provides a better level of protection from adverse modification or 
destruction of habitat that that provided through a consultation under 
section 7 of the Act. Furthermore, Oxy has an excellent track record 
protecting P. debilis.
     Pollinator and habitat BMPs will apply outside of specific 
Natural Areas.
    The exclusion would provide recognition for the proactive 
conservation efforts that have been implemented in practice by Oxy and 
CNAP.
Benefits of Exclusion Outweigh the Benefits of Inclusion
    Ongoing management of the Mount Callahan Natural Area since 1987, 
consistent with the conservation measures and BMPs, demonstrates a 
long-term commitment and partnership by Oxy and the CNAP. Furthermore, 
the Mount Callahan Saddle Natural Area was added in 2008 and the Mount 
Logan Mine Natural Area is being added in 2012, demonstrating an 
expansion of and commitment to conservation efforts, as discussed 
above. In addition, Oxy has agreed to extend their termination clause 
on the agreement from 3 months to 2 years, again, demonstrating a 
commitment to conservation of the species and partnership with CNAP.
    Oxy manages the majority of three of the four viable populations of 
Penstemon debilis. These populations all occur on private lands (over 
private minerals), where a Federal action will only seldom, if ever, 
provide protection through section (7)(a)(2) consultation. Without the 
cooperation of this important partner and their partnership with CNAP, 
the recovery of P. debilis will be much more difficult. We believe that 
the articles of designation and accompanying BMPs for P. debilis will 
benefit the species more than the occasional consultation that may 
occur because of a Federal nexus on these lands.
Exclusion Will Not Result in Extinction of the Species
    The partnership between Oxy and CNAP has given rise to an agreement 
that provides conservation strategies and measures consistent with 
currently accepted principles of conservation biology and provides 
better protection for Penstemon debilis from adverse modification or 
destruction of habitat than that provided through a consultation under 
section 7 of the Act as explained above. Because of the long-term 
partnership between Oxy and CNAP, implementation of their agreement, 
Oxy's long-term and excellent commitment to conserving the species, 
evidence that Oxy intends to continue implementing this agreement, and 
intentions to expand these commitments, there is a reasonable 
expectation that the agreement will be implemented into the future and 
we believe this exclusion will not result in the extinction of the 
species.

Required Determinations

Regulatory Planning and Review--Executive Orders 12866 and 13563

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The OIRA 
has determined that this rule is not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must publish 
a notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory

[[Page 48401]]

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

[[Page 48402]]

and a regulatory flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration.
    Critical habitat designation for the three plants is anticipated to 
affect oil and gas activities. However, the Service is more likely to 
recommend a series of project modifications that will allow for work 
within critical habitat, rather than complete avoidance of critical 
habitat. Therefore, reductions in oil and natural gas production are 
not anticipated. Furthermore, given the small fraction of projects 
affected, approximately three or fewer, project modification costs are 
not anticipated to increase the cost of energy production or 
distribution in the United States in excess of 1 percent, one of the 
nine thresholds contained in Executive Order 13211. Thus, none of the 
nine threshold levels of impact provided by OMB is exceeded. Therefore, 
designation of critical habitat is not expected to lead to any adverse 
outcomes (such as a reduction in oil and natural gas production or 
distribution), and a Statement of Energy Effects is not required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because it would not produce a Federal mandate 
of $100 million or greater in any year; that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The FEA concludes that incremental impacts may occur due to 
project modifications and administrative costs of consultation that may 
need to be made for oil and gas, transportation, grazing, and 
recreational activities; however, these are not expected to affect 
small governments to the extent described above. Consequently, we do 
not believe that the critical habitat designation would significantly 
or uniquely affect small government entities. As such, a Small 
Government Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we have analyzed the potential takings implications of designating 
critical habitat for Ipomopsis polyantha, Penstemon debilis, and 
Phacelia submutica in a takings implications assessment. As discussed 
above, the designation of critical habitat affects only Federal 
actions. Although private parties that receive Federal funding, 
assistance, or require approval or authorization from a Federal agency 
for an action may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.
    We believe that the takings implications associated with this 
critical habitat designation will be insignificant, even though private 
lands are included as well as Federal lands. Impacts of critical 
habitat designation may occur on private lands where there is Federal 
involvement (e.g., Federal funding or permitting) subject to section 7 
of the Act. Impacts on private entities also may result if the decision 
on a proposed action on federally owned land designated as critical 
habitat could affect economic activity on adjoining non-Federal land. 
Each action would be evaluated by the involved Federal agency, in 
consultation with the Service, in relation to its impact on these 
species' designated critical habitat. In the unexpected event that 
expensive modifications would be required to a project on private 
property, it is not likely that the economic impacts to the property 
owner would be such to support a takings action.
    The takings implications assessment concludes that this designation 
of critical habitat for Ipomopsis polyantha, Penstemon debilis, and 
Phacelia submutica does not pose significant takings implications for 
lands within or affected by the designation.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this rule 
does not have significant Federalism effects. A Federalism impact 
summary statement is not required. In keeping with

[[Page 48403]]

Department of the Interior and Department of Commerce policy, we 
requested information from, and coordinated development of, this 
critical habitat designation with appropriate State resource agencies 
in Colorado. We received three comments from the CNAP and have 
addressed them in the Summary of Comments and Recommendations section 
of the rule. The designation of critical habitat in areas currently 
occupied by Ipomopsis polyantha, Penstemon debilis, and Phacelia 
submutica imposes no additional restrictions to those currently in 
place and, therefore, has little incremental impact on State and local 
governments and their activities. The designation may have some benefit 
to these governments in that the areas that contain the physical or 
biological features essential to the conservation of the species are 
more clearly defined, and the elements of the features of the habitat 
necessary to the conservation of the species are specifically 
identified. This information does not alter where and what federally 
sponsored activities may occur. However, it may assist local 
governments in long-range planning (rather than having them wait for 
case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the applicable 
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are 
designating critical habitat in accordance with the provisions of the 
Act. This final rule uses standard property descriptions and identifies 
the elements of physical or biological features essential to the 
conservation of Ipomopsis polyantha, Penstemon debilis, and Phacelia 
submutica within the designated areas to assist the public in 
understanding the habitat needs of the species.

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA) (42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, when the 
range of the species includes States within the Tenth Circuit, such as 
that of Ipomopsis polyantha, Penstemon debilis, and Phacelia submutica, 
under the Tenth Circuit ruling in Catron County Board of Commissioners 
v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we 
undertake NEPA analysis for critical habitat designation (77 FR 18157).
    We completed NEPA analysis for this critical habitat designation. 
We notified the public of availability of the draft environmental 
assessment (Service 2012b, entire) for the proposed rule on March 27, 
2012 (77 FR 18157). The final environmental assessment, as well as the 
finding of no significant impact, is available upon request from the 
Field Supervisor, Colorado Ecological Services Office (see FOR FURTHER 
INFORMATION CONTACT section), at http://www.regulations.gov at Docket 
No. FWS-R6-2011-0040, or on our Web site at http://www.fws.gov/mountain-prairie/species/plants/3ColoradoPlants/index.html.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Act), we readily 
acknowledge our responsibilities to work directly with Tribes in 
developing programs for healthy ecosystems, to acknowledge that Tribal 
lands are not subject to the same controls as Federal public lands, to 
remain sensitive to Indian culture, and to make information available 
to Tribes. We determined that there are no Tribal lands occupied by 
Ipomopsis polyantha, Penstemon debilis, and Phacelia submutica at the 
time of listing that contain the features essential for conservation of 
the species, and no Tribal lands unoccupied by I. polyantha, P. 
debilis, and P. submutica that are essential for the conservation of 
the species. Therefore, we are not designating critical habitat for the 
I. polyantha, P. debilis, and P. submutica on Tribal lands.

References Cited

    A complete list of all references cited is available on the 
Internet at http://www.regulations.gov and upon request from the 
Western Colorado Ecological Services Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this rulemaking are the staff members of 
Western Colorado Ecological Services Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

0
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.


[[Page 48404]]



0
2. Amend Sec.  17.12(h) by revising the entries for ``Ipomopsis 
polyantha,'' ``Penstemon debilis,'' and ``Phacelia submutica'' under 
``Flowering Plants'' in the List of Endangered and Threatened Plants to 
read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
-------------------------------------------------------    Historic range           Family           Status      When listed    Critical       Special
         Scientific name               Common Name                                                                               habitat        rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                                                                      * * * * * * *
Ipomopsis polyantha..............  Pagosa skyrocket...  U.S.A. (CO)........  Polemoniaceae......            E           792      17.96(a)            NA
 
                                                                      * * * * * * *
Penstemon debilis................  Parachute            U.S.A. (CO)........  Plantaginaceae.....            T           792      17.96(a)            NA
                                    beardtongue.
 
                                                                      * * * * * * *
Phacelia submutica...............  DeBeque phacelia...  U.S.A. (CO)........  Hydrophyllaceae....            T           792      17.96(a)            NA
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.96, amend paragraph (a) by adding entries for ``Phacelia 
submutica (DeBeque phacelia)'' in alphabetical order under Family 
Hydrophyllaceae, ``Penstemon debilis (Parachute penstemon)'' in 
alphabetical order under Family Plantaginaceae, and ``Ipomopsis 
polyantha (Pagosa skyrocket)'' in alphabetical order under Family 
Polemoniaceae, to read as follows:


Sec.  17.96  Critical habitat--plants.

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

[[Page 48405]]

[GRAPHIC] [TIFF OMITTED] TR13AU12.000

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

[[Page 48406]]

[GRAPHIC] [TIFF OMITTED] TR13AU12.001


[[Page 48407]]


    (8) Unit 3: Roan Creek, Garfield County, Colorado. Note: Map of 
Unit 3 of critical habitat for Phacelia submutica is provided at 
paragraph (10) of this entry.
    (9) Unit 4: DeBeque, Mesa County, Colorado. Note: Map of Unit 4 of 
critical habitat for Phacelia submutica is provided at paragraph (10) 
of this entry.
    (10) Unit 5: Mount Logan, Garfield County, Colorado. Note: Map of 
Units 3, 4, and 5 of critical habitat for Phacelia submutica follows:
[GRAPHIC] [TIFF OMITTED] TR13AU12.002


[[Page 48408]]


    (11) Unit 6: Ashmead Draw, Mesa County, Colorado. Note: Map of Unit 
6 of critical habitat for Phacelia submutica is provided at paragraph 
(14) of this entry.
    (12) Unit 7: Baugh Reservoir, Mesa County, Colorado. Note: Map of 
Unit 7 of critical habitat for Phacelia submutica is provided at 
paragraph (14) of this entry.
    (13) Unit 8: Horsethief Mountain, Mesa County, Colorado. Note: Map 
of Unit 8 of critical habitat for Phacelia submutica is provided at 
paragraph (14) of this entry.
    (14) Unit 9: Anderson Gulch, Mesa County, Colorado. Note: Map of 
Units 6, 7, 8, and 9 of critical habitat for Phacelia submutica 
follows:
[GRAPHIC] [TIFF OMITTED] TR13AU12.003


[[Page 48409]]


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

[[Page 48410]]

[GRAPHIC] [TIFF OMITTED] TR13AU12.004

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

[[Page 48411]]

[GRAPHIC] [TIFF OMITTED] TR13AU12.005

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

[[Page 48412]]

[GRAPHIC] [TIFF OMITTED] TR13AU12.006

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

[[Page 48413]]

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[[Page 48414]]


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

[[Page 48415]]

[GRAPHIC] [TIFF OMITTED] TR13AU12.008

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

[[Page 48416]]

[GRAPHIC] [TIFF OMITTED] TR13AU12.009

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

[[Page 48417]]

[GRAPHIC] [TIFF OMITTED] TR13AU12.010

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

[[Page 48418]]

    (9) Unit 4: Eight Mile Mesa, Archuleta County, Colorado. Note: Map 
of Units 3 and 4 of critical habitat for Ipomopsis polyantha follows:
[GRAPHIC] [TIFF OMITTED] TR13AU12.011

* * * * *

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