[Federal Register Volume 78, Number 151 (Tuesday, August 6, 2013)]
[Proposed Rules]
[Pages 47590-47611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18334]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2013-0081; 4500030113]
RIN 1018-AY95


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for Graham's Beardtongue (Penstemon grahamii) and White River 
Beardtongue (Penstemon scariosus var. albifluvis)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to list 
Graham's beardtongue (Penstemon grahamii) and White River beardtongue 
(Penstemon scariosus var. albifluvis) as threatened species throughout 
their ranges under the Endangered Species Act of 1973, as amended 
(Act). If we finalize this rule as proposed, it would add Graham's and 
White River beardtongues to the List of Endangered and Threatened 
Plants under the Act and extend the Act's protections to these species 
throughout their ranges.

DATES: We will accept all comments received or postmarked on or before 
October 7, 2013. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES section, below) must be received by 
11:59 p.m. Eastern Time on the closing date. We must receive requests 
for public hearings, in writing, at the address shown in the FOR 
FURTHER INFORMATION CONTACT section by September 20, 2013.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R6-ES-2013-0081, which 
is the docket number for this rulemaking. Then, in the Search panel on 
the left side of the screen, under the Document Type heading, click on 
the Proposed Rules link to locate this document. You may submit a 
comment by clicking on ``Comment Now!'' If your comments will fit in 
the provided comment box, please use this feature of http://www.regulations.gov, as it is most compatible with our comment review 
procedures. If you attach your comments as a separate document, our 
preferred file format is Microsoft Word. If you attach multiple 
comments (such as form letters), our preferred format is a spreadsheet 
in Microsoft Excel.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R6-ES-2013-0081; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all information received on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Information Requested 
section below for more details).
    Any additional tools or supporting information that we may develop 
for this rulemaking will be available at http://www.fws.gov/mountain-prairie/species/plants/2utahbeardtongues/, at http://www.regulations.gov at Docket No. FWS-R6-ES-2013-0081, and at the Utah 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Larry Crist, Field Supervisor, U.S. 
Fish and Wildlife Service, Utah Ecological Services Field Office, 2369 
West Orton Circle, Suite 50, West Valley City, UT 84119; by telephone 
at 801-975-3330; or by facsimile at 801-975-3331. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act of 
1973, as amended (Act), if a species is determined to be an endangered 
or threatened species throughout all or a significant portion of its 
range, we are required to promptly publish a proposal in the Federal 
Register and make a determination on our proposal within one year. 
Listing a species as an endangered or threatened species can only be 
completed by issuing a rule. In the case of Graham's beardtongue, a 
June 9, 2011, court decision reinstated our January 19, 2006, proposed 
rule (71 FR 3158) to list Graham's beardtongue as a threatened species 
and ordered us to reconsider, with all deliberate speed, a new final 
rule with respect to whether this species should be listed as an 
endangered or threatened species under the Act. We have determined that 
enough new information exists to warrant a new proposed rule for the 
Graham's beardtongue.
    This rule consists of a proposed rule to list the Graham's 
beardtongue and White River beardtongue as threatened species under the 
Act.
    The basis for our action. Under the Act, we can determine that a 
species is an endangered or threatened species based on any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence.
    We have determined that energy exploration and development are 
threats to both Graham's and White River beardtongues. In addition, the 
cumulative impacts of increased energy development, livestock grazing, 
invasive weeds, small population sizes, and climate change are threats 
to these species. Therefore, these species qualify for listing under 
the Act, which can only be done by issuing a rule.
    We will seek peer review. We are seeking comments from 
knowledgeable individuals with scientific expertise to review our 
analysis of the best available science and application of that science 
and to provide any additional scientific information to improve this 
proposed rule. Because we will consider all comments and information we 
receive during the comment period, our final determinations may differ 
from this proposal.

[[Page 47591]]

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and effective as possible. Therefore, we request 
comments or information from other concerned governmental agencies, 
Native American tribes, the scientific community, industry, or any 
other interested parties concerning this proposed rule. We particularly 
seek comments concerning:
    (1) The species' biology, range, and population trends, including:
    (a) Biological or ecological requirements of these species;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns; 
and
    (d) Historical, current, and projected population levels and 
trends.
    (2) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Act (16 U.S.C. 
1531 et seq.), which are:
    (a) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to these species and regulations that may 
be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of these species, 
including the locations of any additional populations of these species.
    (5) Past and ongoing conservation measures for these species, their 
habitats or both.
    (6) Current or planned activities in the areas occupied by these 
species and possible impacts of these activities on these species.
    (7) Any information on the biological or ecological requirements of 
these species and ongoing conservation measures for these species and 
their habitats.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or threatened 
species must be made ``solely on the basis of the best scientific and 
commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We request 
that you send comments only by the methods described in the ADDRESSES 
section.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold personal identifying information 
from public review. However, we cannot guarantee that we will be able 
to do so. We will post all hardcopy submissions on http://www.regulations.gov. Please include sufficient information with your 
comments to allow us to verify any scientific or commercial information 
you include.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Utah Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Background--Graham's beardtongue

Previous Federal Actions

    For a detailed description of Federal actions concerning Graham's 
beardtongue, please refer to the January 19, 2006, proposed rule to 
list the species with critical habitat (71 FR 3158) and the December 
19, 2006, withdrawal of the proposed rule to list the species with 
critical habitat (71 FR 76024).
    The document we published on December 19, 2006 (71 FR 76024), 
withdrew the proposed listing and critical habitat rule for Graham's 
beardtongue that we published on January 19, 2006 (71 FR 3158). The 
December 19, 2006, withdrawal also addressed comments we received on 
the proposed rule to list Graham's beardtongue and summarized threats 
affecting the species. The withdrawal of the proposed rule was based on 
information provided during the public comment period. This information 
led us to conclude that the threats to Graham's beardtongue identified 
in the proposed rule, particularly energy development, were not as 
significant as previously believed and that currently available data 
did not indicate that threats to the species and its habitat, as 
analyzed under the five listing factors described in section 4(a)(1) of 
the Act, were likely to endanger the species in the foreseeable future 
throughout all or a significant portion of its range.
    On December 16, 2008, the Center for Native Ecosystems, Southern 
Utah Wilderness Alliance, Utah Native Plant Society, and Colorado 
Native Plant Society filed a complaint in the United States District 
Court for the District of Colorado challenging the withdrawal of our 
proposal to list Graham's beardtongue. The court ruled in favor of the 
plaintiffs on June 9, 2011, vacating our December 2006 withdrawal and 
reinstating our January 2006 proposed rule.
    The best available information for Graham's beardtongue has changed 
considerably since 2006, when the proposed rule was published and then 
withdrawn. We believe it is appropriate to publish a revised proposed 
listing rule to better reflect new information regarding Graham's 
beardtongue. A revised proposed critical habitat rule for the Graham's 
beardtongue is published elsewhere in today's Federal Register.

Species Information

Taxonomy and Species Description
    Graham's beardtongue was described as a species in 1937 as an 
herbaceous perennial plant in the plantain family (Plantaginaceae). For 
most of the year when the plant is dormant, it exists as a small, 
unremarkable basal rosette of leaves. During flowering the plant 
becomes a ``gorgeous, large-flowered penstemon'' (Welsh et al. 2003, p. 
625). Similar to other species in the beardtongue (Penstemon) genus, 
Graham's beardtongue has a strongly bilabiate (two-lipped) flower with 
a prominent infertile staminode (sterile male flower part)--the 
``beardtongue'' that typifies the genus. The combination of its large, 
vivid pink flower and densely bearded staminode with short, stiff, 
golden-orange hairs makes Graham's beardtongue quite distinctive. Each 
year an individual plant can produce one to a few flowering stems that 
can grow up to 18 centimeters (cm) (7.0 inches (in)) tall (with some 
exceptions), with one to 20 or more flowers on each flowering stem.
Distribution
    When we published the proposed listing rule in 2006, there were 109 
plant records, or ``points,'' across Graham's beardtongue's known 
range,

[[Page 47592]]

and the total species' population size was estimated at 6,200 
individuals. Point data represent a physical location where one or more 
plants were observed on the ground. Point data are usually collected by 
GPS and stored as a ``record'' in a geographic information system 
database.
    Since 2006, we have completed many surveys for this species. The 
range of Graham's beardtongue is essentially the same as it was in 
2006: a horseshoe-shaped band about 80 miles long and 6 miles wide 
extending from the extreme southeastern edge of Duchesne County in Utah 
to the northwestern edge of Rio Blanco County in Colorado (Figure 1). 
However, we have identified larger numbers of plants and a greater 
distribution of the species across its range. Data we compiled from the 
Vernal and Meeker Field Offices of the Bureau of Land Management (BLM), 
and Utah and Colorado Natural Heritage Programs (UNHP and CNHP) include 
4,460 points representing 31,702 plants. Most of these locations were 
documented after 2006. Although the overall number of plants has 
increased with additional surveys, this does not mean the total 
population is increasing. Rather, we now have a more complete picture 
of how many total Graham's beardtongue individuals exist, and this 
number likely has not changed substantially since the species was named 
in 1937. We assume that the current known range of this species has not 
change substantially from what it was historically.
BILLING CODE 4310-55-P
    Figure 1. Graham's beardtongue's range.

[[Page 47593]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.016

BILLING CODE 4310-55-C
    We mapped all plant points and grouped them into populations 
(Figure 1). First, we followed standardized methods used by the 
national network of Natural Heritage Programs, and identified the 
species' element occurrences (EO). EOs are plant points that are 
grouped together based on geographic proximity (NatureServe 2004, p. 
6). Natural Heritage Program criteria (NatureServe 2004, p. 6) 
classifies points into discrete EOs if they are within 2 kilometers 
(km) (1.2 miles (mi)) of each other and separated by suitable habitat. 
We did not always have specific habitat suitability information and in 
these cases relied on the 2-km (1.2-mi) distance as our primary 
classification factor. Next, we included updated survey information 
collected from 2006 to the present and determined the number of 
distinct EOs. Overall, we documented 24 EOs: 20 in Utah and 4 in 
Colorado. For the purpose

[[Page 47594]]

of this proposed listing rule, we consider EOs to be synonymous with 
populations and hereafter will use the term ``populations'' when 
describing the distribution of the species (Figure 1).
    New sites of Graham's beardtongue were found in May of 2013. 
Approximately 350 plants were counted, about 1 percent of the known 
population. Because the number counted was only about 1 percent of the 
total population, including these additional plants does not 
perceptibly change our threats analysis. We included the new points in 
our map (Figure 1). However, information from surveys during the 2013 
field season continues to be submitted. Once the field season is 
completed and we have finalized data, we will update the threats 
analysis using those data.
    The biggest change in the population size and distribution of 
Graham's beardtongue from the 2006 proposed rule to this proposed rule 
is that many additional surveys were conducted in the middle of the 
species' range (populations 10 through 20, see Figure 1), increasing 
the total population estimate for Graham's beardtongue fivefold. In 
particular, we now estimate that one population (referred to as 
population 20) comprises about 23 percent of the species' total 
population, compared to our estimate of only 2 percent in 2006. In 
2006, we noted that population 20 was an important connectivity link 
between the Utah and Colorado populations of this species, and we still 
consider this to be true, especially given the large number of plants 
found in this population.
    Approximately 59 percent of the total known population of Graham's 
beardtongue is on BLM-managed lands, with the remainder on non-Federal 
lands with State and private ownership (Table 1). This distribution is 
essentially unchanged from our 2006 finding. A land exchange between 
the BLM and the State of Utah planned for 2013 will decrease the number 
of known plants on Federal lands and increase the plants on State lands 
by 1 percent (see X. Inadequacy of Existing Regulatory Mechanisms below 
for more details).
    Table 1. Number of individuals of Graham's beardtongue by land 
owner.

------------------------------------------------------------------------
                                             Number of      Percent of
                                            individuals        total
------------------------------------------------------------------------
Federal.................................          18,678              59
Private.................................           8,137              26
State...................................           4,887              15
Tribal..................................               0               0
                                         -------------------------------
  Total.................................          31,702             100
------------------------------------------------------------------------

    Two sites of Graham's beardtongue within population 13 (see Figure 
1) were monitored from 2004 to 2012, and two additional sites within 
population 13 were monitored from 2010 to 2012. These sites were stable 
or slightly declining over the period of study (McCaffery 2013, p. 9). 
Recruitment for these sites of Graham's beardtongue was low and 
sporadic (McCaffery 2013, p. 11). In addition, Graham's beardtongue 
flowered sporadically, indicating that conditions were not always 
suitable for flowering to occur (McCaffery 2013, p. 9). Small 
population sizes and low recruitment make this species more vulnerable 
to stochastic events, and changes in stressors or habitat conditions 
may negatively impact the long-term growth of these sites (McCaffery 
2013, p. 9). No link was found between reproduction and precipitation 
on a regional level, but it is likely the correct environmental factors 
driving reproduction and survival have not been measured (McCaffery 
2013, p. 10). A combination of several factors could be driving 
population dynamics of Graham's beardtongue; for example, herbivory and 
climate could be interacting to influence reproduction. Plants at one 
of the study sites were negatively impacted by herbivory from tiger 
moth caterpillars (possibly Arctia caja utahensis) (see II. Grazing and 
Trampling, below), but a cool, wet spring in 2011 reduced herbivory on 
reproductive plants (Dodge and Yates 2011, pp. 7-8). Further studies 
are necessary to determine if herbivory or other factors are driving 
population dynamics of this species.
Habitat
    Graham's beardtongue is an endemic plant found mostly in exposed 
oil shale strata of the Parachute Creek Member and other unclassified 
members of the Green River geologic formation. Most populations are 
associated with the surface exposure of the petroleum-bearing oil shale 
Mahogany ledge (Shultz and Mutz 1979, p. 40; Neese and Smith 1982, p. 
64). Soils at these sites are shallow with virtually no soil horizon 
development, and the surface is usually covered with broken shale chips 
or light clay derived from the thinly bedded shale. About a third of 
all known point locations of plants in our files grow on slopes that 
are 10 degrees or less, with an average slope across all known points 
of 17.6 degrees (Service 2013, p. 2). The species' average elevation is 
1,870 meters (m) (6,134 feet (ft)), with a range in elevation from 
1,426 to 2,128 m (4,677 to 6,982 ft) (Service 2013, p. 4). Individuals 
of Graham's beardtongue usually grow on southwest-facing exposures 
(Service 2013, p. 1).
    Graham's beardtongue is associated with a suite of species 
similarly adapted to xeric growing conditions on highly basic 
calcareous shale soils, including (but not limited to) saline wildrye 
(Leymus salinus), mountain thistle (Cirsium eatonii var. eriocephalum), 
spiny greasebush (Glossopetalon spinescens var. meionandra), Utah 
juniper (Juniperus osteosperma), twoneedle pi[ntilde]on (Pinus edulis), 
and shadscale saltbush (Atriplex confertifolia) (UNHP 2013, entire). 
Graham's beardtongue co-occurs with eight other rare species that are 
similarly endemic and restricted to the Green River Formation, 
including White River beardtongue.
Biology
    Graham's beardtongue individuals may live 20 to 30 years; however, 
we do not know the plant's average lifespan (Service 2012a, p. 2). 
Graham's beardtongue is not as genetically diverse as other common, 
widespread beardtongues from the same region (Arft 2002, p. 5). 
However, populations 1 through 9 (see Figure 1) have minor 
morphological differences from the rest of the Graham's beardtongue 
population (Shultz and Mutz 1979, p. 41) and may, due to geographic 
isolation, be genetically divergent from the remainder of the species' 
population, although this hypothesis has never been tested.
    Graham's beardtongue usually flowers for a short period of time in 
late May through early July. Pollinators and flower visitors of 
Graham's beardtongue include the bees Anthophora lesquerellae, Osmia 
sanrafaelae, Osmia rawlinsi; the sweat bees Lasioglossum sisymbrii and 
Dialictus sp.; and the masarid wasp Pseudomasaris vespoides, which is 
thought to be the primary pollinator for Graham's beardtongue 
(Lewinsohn and Tepedino 2007, p. 245; Dodge and Yates 2008, p. 30). At 
least one large pollinator, Bombus huntii (Hunt's bumblebee), is known 
to visit Graham's beardtongue (71 FR 3158, January 19, 2006), which is 
not unexpected due to the relatively large size of Graham's 
beardtongue's flowers compared to other beardtongues.
    Graham's beardtongue has a mixed mating system, meaning individuals 
of this species can self-fertilize, but they produce more seed when 
they are cross-pollinated (Dodge and Yates 2009, p. 18). Thus, 
pollinators are important to this species for maximum seed and fruit 
production. Based on the size of the largest Graham's beardtongue 
pollinators (i.e., Hunt's bumblebee), we

[[Page 47595]]

expect they are capable of travelling and transporting pollen for 
distances of at least 700 m (2,297 ft) (Service 2012b, pp. 8, 12). 
Therefore, maintaining sufficiently large numbers and population 
distribution of Graham's beardtongue ensures cross-pollination can 
occur and prevents inbreeding depression (Dodge and Yates 2009, p. 18). 
Pollinators generally need a diversity of native plants for foraging 
throughout the seasons, nesting and egg-laying sites, and undisturbed 
places for overwintering (Shepherd et al. 2003, pp. 49-50). Thus, it is 
important to protect vegetation diversity within and around Graham's 
beardtongue populations to maintain a diversity of pollinators.

Background--White River beardtongue

Previous Federal Actions

    On November 28, 1983, White River beardtongue (as Penstemon 
albifluvis) was designated as a category 1 candidate under the Act (48 
FR 53640). Category 1 candidate species were defined as ``taxa for 
which the Service currently has on file substantial information on 
biological vulnerability and threat(s) to support the appropriateness 
of proposing to list the taxa as Endangered or Threatened species. . . 
. Development and publication of proposed rules on these taxa are 
anticipated, but because of the large number of such taxa, could take 
some years'' (48 FR 53641, November 28, 1983). In the February 28, 
1996, candidate notice of review (CNOR) (61 FR 7596), we abandoned the 
use of numerical category designations and changed the status of White 
River beardtongue to a candidate under the current definition. We 
maintained White River beardtongue as a candidate species in subsequent 
updated notices of review between 1996 and 2012, including the most 
recent CNOR published on November 21, 2012 (77 FR 69994).
    On September 9, 2011, we reached an agreement with plaintiffs in 
Endangered Species Act Section 4 Deadline Litig., Misc. Action No. 10-
377 (EGS), MDL Docket No. 2165 (D. DC), to systematically review and 
address the needs of all species listed in the 2010 CNOR, which 
included White River beardtongue.

Species Information

Taxonomy and Species Description
    White River beardtongue is an herbaceous perennial plant in the 
plantain family (Plantaginaceae). White River beardtongue is a shrubby 
plant with showy lavender flowers. It grows up to 50 cm (20 in) tall, 
with multiple clusters of upright stems. It has long, narrow, green 
leaves. Like other members of the beardtongue genus and like Graham's 
beardtongue, it has a strongly bilabiate (two-lipped) flower with a 
prominent infertile staminode (sterile male flower part), or 
``beardtongue.'' Blooming occurs from May into early June, with seeds 
produced by late June (Lewinsohn 2005, p. 9).
    White River beardtongue was first described as a new species, 
Penstemon albifluvis, in 1982 (England 1982, entire). In 1984, the 
taxon was described as variety P. scariosus var. albifluvis (Cronquist 
et al. 1984, p. 442). P. s. var. albifluvis has a shorter corolla and 
shorter anther hairs than typical P. scariosus. White River beardtongue 
is also unique from P. scariosus because it is endemic to low-elevation 
oil shale barrens near the White River along the Utah-Colorado border 
(see ``Habitat'' below for more information), while typical P. 
scariosus habitat occurs at higher elevations on the West Tavaputs and 
Wasatch Plateaus of central Utah (Cronquist et al. 1984, p. 442).
Distribution
    The historical range of White River beardtongue has not changed 
since the species was first described in 1982 (England 1982, pp. 367-
368). White River beardtongue was first discovered along the north bank 
of the White River one mile upstream from the Ignacio Bridge (England 
1982, pp. 367). The historical range was described as occurring from 
east central Uintah County, Utah, to Rio Blanco County, Colorado 
(England 1982, pp. 367).
    White River beardtongue's current range extends from Raven Ridge 
west of Rangely in Rio Blanco County, Colorado, to the vicinity of 
Willow Creek in Uintah County, Utah. The bulk of the species' range 
occurs between Raven Ridge and Evacuation Creek in eastern Utah, a 
distance of about 30 km (20 miles) (Figure 2) (CNHP 2012, entire; UNHP 
2012, entire). We acknowledge that herbarium collections from 1977 to 
1998 (UNHP 2012, entire) indicate that the species' range might extend 
farther west to Willow Creek, Buck Canyon, and Kings Well Road. 
However, we have not revisited these herbarium collection locations to 
confirm the species' presence; it is possible that the herbarium 
collections represent individuals of the closely related and nearly 
indistinguishable Garrett's beardtongue (Penstemon scariosus var. 
garettii). Therefore, we consider these to be unverified locations and 
exclude these records from further analysis of threats (Figure 2).
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[GRAPHIC] [TIFF OMITTED] TP06AU13.017

BILLING CODE 4310-55-C
    We do not have complete surveys for White River beardtongue and 
thus do not know the total population for this species. The best total 
population estimate is approximately 11,423 individuals, excluding the 
unverified locations. It is quite likely that the total population is 
higher, and it may be as high as 25,000 plants (Service 2012; Franklin 
1994), but we do not have survey data to confirm this higher population 
level. Therefore, we use the 11,423 population figure throughout our 
analysis in this proposed rule.
    Utah Natural Heritage Program and Colorado Natural Heritage Program 
data include 20 populations of White River beardtongue in Utah and 1 
population in Colorado (Figure 2; see our previous explanation of 
populations and EOs, or element occurrences, in the ``Distribution'' 
section for Graham's beardtongue, above). Based on updated survey 
information from the past few years, we conducted our own analysis in 
which we combined several of the existing EOs because of close 
proximity (see Species Information for Graham's

[[Page 47597]]

beardtongue, above, for more information). Overall, we delineated seven 
populations in the main portion of White River beardtongue's range. 
Approximately 62 percent of the known population of White River 
beardtongue occurs on BLM land, with the remainder occurring on State 
and private lands (Table 2).
    Table 2. Number of individuals of White River beardtongue by land 
owner.

------------------------------------------------------------------------
                                             Number of      Percent of
                                            individuals        total
------------------------------------------------------------------------
Federal.................................           7,054              62
Private.................................           3,093              27
State...................................           1,276              11
Tribal..................................               0               0
                                         -------------------------------
                  Total                           11,423             100
------------------------------------------------------------------------

    Two sites of White River beardtongue were monitored from 2004 to 
2012 (populations 1 and 6, see Figure 2), and one site was monitored 
from 2010 to 2012 (population 3, see Figure 2). At one site, plants 
declined over this time, and the other two sites increased slightly 
(McCaffery 2013, p. 8). White River beardtongue tended to flower each 
year regardless of new seedling recruitment, in contrast to Graham's 
beardtongue (McCaffery 2013, p. 9). Like Graham's beardtongue, White 
River beardtongue is vulnerable to stochastic events as well as 
increases in stressors or declining habitat conditions (McCaffery 2013, 
p. 9). Also like Graham's beardtongue, no link was found between 
reproduction and precipitation on a regional level (McCaffery 2013, p. 
10), but this should be studied on a more local scale. In 2009, a 
significant recruitment event occurred in two of the study populations 
(Dodge and Yates 2010, pp. 11-12). Many of these seedlings died between 
2009 and 2010, but the net result was an increase in population size by 
the end of the study (Dodge and Yates 2011, p. 6), and this pulse of 
recruitment had a strong influence on the estimate of population growth 
(McCaffery 2013, p. 10). Continued monitoring is necessary to determine 
how frequent recruitment occurs and how this influences the long-term 
trends of this species. In addition, like Graham's beardtongue, we need 
further studies to determine what factors are driving population 
dynamics of White River beardtongue.
Habitat
    White River beardtongue is restricted to calcareous (containing 
calcium carbonate) soils derived from oil shale barrens of the Green 
River Formation in the Uinta Basin of northeastern Utah and adjacent 
Colorado. It overlaps with Graham's beardtongue at sites in the eastern 
portion of Graham's beardtongue's range.
    White River beardtongue is associated with the Mahogany ledge. The 
habitat of White River beardtongue is a series of knolls and slopes of 
raw oil shale derived from the Green River geologic formation (Franklin 
1995, p. 5). These soils are often white or infrequently red, fine-
textured, shallow, and usually mixed with fragmented shale. These very 
dry substrates occur in lower elevations of the Uinta Basin, between 
1,500 and 2,040 m (5,000 and 6,700 ft). About one-fifth of all known 
point locations of White River beardtongue are on slopes of 10 degrees 
or less, with an average slope for all known points of 19.2 degrees 
(Service 2013, p. 3). The species grows at an average elevation of 
1,847 m (6,060 ft), with a range in elevation from 1,523 to 2,044 m 
(4,998 to 6,706 ft) (Service 2013, p. 4). White River beardtongue 
individuals usually grow on southwest-facing exposures (Service 2013, 
p. 1).
    Other species found growing with White River beardtongue include 
(but are not limited to) saline wildrye (Leymus salinus), mountain 
thistle (Cirsium eatonii var. eriocephalum), spiny greasebush 
(Glossopetalon spinescens var. meionandra), Utah juniper (Juniperus 
osteosperma), twoneedle pi[ntilde]on (Pinus edulis), and shadscale 
saltbush (Atriplex confertifolia) (UNHP 2013, entire), and many of the 
other oil shale endemics also found growing with Graham's beardtongue 
(Neese and Smith 1982, p. 58; Goodrich and Neese 1986, p. 283).
Biology
    This species is probably long-lived due to the presence of a 
substantial and multi-branched woody stem (Lewinsohn 2005, p. 3), and 
individual plants living for 30 years are known to occur (Service 
2012c, p. 3). Most plants begin to flower when the woody stem reaches 3 
to 4 cm (1 to 1.5 in.) in height (Lewinsohn 2005, p. 4), usually in May 
and June.
    The species is pollinated by a wasp, Pseudomasaris vespoides, and 
several native, solitary bee species in the genera Osmia, Ceratina, 
Anthophora, Lasioglossum, Dialictus, and Halictus (Sibul and Yates 
2006, p. 14; Lewinsohn and Tepedino 2007, p. 235). We consider these 
pollinators to be medium in size as compared to the larger pollinators 
generally associated with Graham's beardtongue (see Background-Graham's 
beardtongue, ``Biology'', above). White River beardtongue has a mixed 
mating system, meaning it can self-fertilize but produces more seed 
when it is cross-pollinated (Lewinsohn and Tepedino 2007, p. 234). 
Thus, pollinators are important to this species for maximum seed and 
fruit production.
    Based on the medium size of White River beardtongue pollinators, we 
expect the pollinators are capable of travelling at least 500 meters 
(1,640 ft) and thus are likely to move pollen across this distance 
(Service 2012b, pp. 8, 13). Although White River beardtongue has low 
flower visitation rates by pollinators, there is no evidence that 
pollinators are limiting for this species (Lewinsohn and Tepedino 2007, 
p. 235). It is important to maintain the diversity of pollinators by 
maintaining vegetation diversity for White River beardtongue because it 
stabilizes the effects of fluctuations in pollinator populations 
(Lewinsohn and Tepedino 2007, p. 236).
    We have very little information regarding the genetic diversity of 
White River beardtongue. This species, like Graham's beardtongue, is 
likely not as genetically diverse as other common, sympatric 
beardtongues (Arft 2002, p. 5).

Summary of Factors Affecting the Species

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations at 50 CFR part 424, set forth the procedures for adding 
species to the Federal Lists of Endangered and Threatened Wildlife and 
Plants. Under section 4(a)(1) of the Act, we may list a species based 
on any of the following five factors: (A) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; and (E) other natural or manmade 
factors affecting its continued existence. Listing actions may be 
warranted based on any of the above threat factors, singly or in 
combination. Stressors that fall under each of these factors are 
discussed below individually. We then summarize where each of these 
stressors or potential threats falls within the five factors.
    We consider a species viable if it can persist over the long term, 
thus avoiding extinction. A species can be conserved (and is thus 
viable) if it has the three Rs: Representation, resiliency, and 
redundancy (Shaffer and Stein 2000). 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

[[Page 47598]]

that 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 
methodology (Tear et al. 2005, p. 841).
    We participated in expert workshops--including experts from The 
Nature Conservancy, Red Butte Garden, UNHP, CNHP, the Service, the BLM, 
and the Natural Resources Conservation Service--in 2008 and 2012, to 
evaluate the best available scientific information for Graham's and 
White River beardtongues (The Nature Conservancy 2008, entire; Service 
2012c, entire). We used the information from these workshops to 
complete a species status assessment for both Graham's and White River 
beardtongues. We determined that both species need the following 
resources for viability:
     Suitable soils and geology
     Sufficient number of pollinators
     Intact associated and adjacent plant community (both 
within and outside of suitable or occupied habitat)
     Minimum reproductive effort or reproductive success
     Suitable microclimate conditions for germination and 
establishment
     Sufficient rain and temperatures suitable for breaking 
seed dormancy and successful reproduction (natural climate)
     Minimum habitat patch or population size
     Genetic diversity or heterozygosity
     Habitat connectivity and integrity
     Viable, long-lived seedbank
     Minimum number of individuals
     Minimum number of viable populations
    The list is the same for both Graham's and White River beardtongues 
because they grow in similar habitat in the same geographic area, even 
overlapping in places. However, specifics for each resource can differ 
between the two species.
    To determine the current and future status of Graham's and White 
River beardtongues, through our species status assessment we evaluated 
if these resource needs are currently met and how these resources are 
likely to change in the future. If the resources are not currently met 
or are predicted to be unmet in the future, we determined the cause of 
the resource insufficiency. The underlying stressor causing the 
resource insufficiency is then considered a threat to Graham's and 
White River beardtongues. We discuss these stressors in the following 
section.
I. Energy Exploration and Development
    Graham's and White River beardtongues are particularly vulnerable 
to the effects of energy development because their ranges overlap 
almost entirely with oil shale and tar sands development areas, as well 
as ongoing traditional oil and gas drilling.
    Impacts from energy exploration and development include the removal 
of soil and vegetation when unpaved roads, well pads, evaporation 
ponds, disposal pits, and pipelines are constructed (BLM 2008a, pp. 
448-449). Increased disturbance from these developments, coupled with 
climate change (see IX. Climate Change, below), will facilitate the 
invasion and spread of nonnative species such as cheatgrass (Bromus 
tectorum), halogeton (Halogeton glomeratus) and Russian thistle 
(Salsola tragus) (Brooks and Pyke 2001, entire; Grace et al. 2001, 
entire; Brooks 2003, p. 432; Friggens et al. 2012, entire), which can 
outcompete native plants and increase the risk of catastrophic 
wildfires (see VI. Wildfire and VII. Invasive Weeds, below).
    Energy developments also result in increased road traffic and 
consequent increases in dust emissions; for every vehicle travelling 
one mile (1.6 km) of unpaved roadway once a day, every day for a year, 
approximately 2.5 tons of dust are deposited along a 305-m (1,000-ft) 
wide corridor centered on the road (Sanders 2008, p. 20). Excessive 
dust can clog plant pores, increase leaf temperature, alter 
photosynthesis, and affect gas and water exchange (Sharifi et al. 1997, 
p. 842; BLM 2012a; Ferguson et al. 1999, p. 2), negatively affecting 
plant growth and reproduction.
    Roads may act as a barrier to bee movement by influencing bees to 
forage on only one side of the road (Bhattacharya et al. 2003, pp. 42-
43) or within isolated habitat patches (Goverde et al. 2002, entire). 
Although bees and other pollinators are quite capable of crossing roads 
or other human-disturbed areas, the high site fidelity of bumblebees 
makes them more apt to remain on one side of a disturbed area 
(Bhattacharya et al. 2003, p. 42). The implication of this type of 
pollinator behavior for rare plants is that the probability for 
outcrossing is reduced (Cane 2001, entire), thereby reducing genetic 
variability and reproductive success.
    Habitat loss or fragmentation from energy development can result in 
higher extinction probabilities for plants because remaining plant 
populations are confined to smaller patches of habitat that are 
isolated from neighboring populations (Jules 1998, p. 1; Soons 2003, p. 
115). Habitat fragmentation and low population numbers pose a threat to 
rare plant species' genetic potential to adapt to changing 
environmental conditions (Mathies et al. 2004, pp. 484-486). Smaller 
and more isolated populations produce fewer seeds and pollen, and thus 
attract fewer and a lower diversity of pollinators (Paschke et al. 
2003, p. 1,258; Lienert 2004, p. 62); for a more complete discussion, 
see section VIII. Small Population Size, below).
Oil Shale and Tar Sands
    The Energy Policy Act of 2005 (42 U.S.C. 13201 et seq.) establishes 
that oil shale, tar sands, and other strategic unconventional fuels 
should be developed to reduce the nation's dependence on imported oil. 
At 42 U.S.C. 15927(m)(1)(B), the Energy Policy Act identifies the Green 
River Region, including the entire range of Graham's and White River 
beardtongues, as a priority for oil shale and tar sand development. 
Provisions of the Energy Policy Act of 2005 provide economic incentives 
for oil shale development. For example, previous Mineral Leasing Act of 
1920 (30 U.S.C. 181 et seq.) restrictions limited oil shale lease sizes 
to 2,072 hectares (ha) (5,120 acres (ac)), and restricted leasing 
opportunities to just one lease tract per individual or corporation. 
Lease size restrictions effectively limited development because of a 
lack of available acreage to accommodate necessary infrastructure and 
facilities. The Energy Policy Act of 2005 now allows an individual or 
corporation to acquire multiple lease tracts up to 20,234 ha (50,000 
ac) in any one State, removing the restrictions of the Mineral Leasing 
Act of 1920 (Bartis et al. 2005, p. 48).
    As we discussed in our January 19, 2006, proposed rule (71 FR 
3158), Graham's beardtongue is closely associated with the richest oil 
shale-bearing strata in the Mahogany ledge, which makes the species 
highly vulnerable to extirpation from potential oil shale or tar sands 
mining (Shultz and Mutz 1979, p. 42; Neese and Smith 1982, p. 64; 
Service 2005, p. 5). This association is particularly true for the 
easternmost populations of Graham's beardtongue (populations 10-24, see 
Figure 1), where approximately 63 percent of all known Graham's 
beardtongue plants are directly associated with the Mahogany ledge 
where it outcrops or is less than 152 m (500 ft) below the surface 
(Service 2013, p. 5). White River beardtongue is also associated with 
the Mahogany ledge's oil shale-bearing strata. Approximately 69 percent 
of the known White River

[[Page 47599]]

beardtongue plants are directly associated with the Mahogany ledge 
where it outcrops or is less than 152 m (500 ft) below the surface 
(Service 2013, p. 5). This shallow overburden (the soil and other 
material that lies over a geologic deposit) becomes important when 
evaluating the type of mining (e.g., surface or subsurface) that will 
be used to extract the oil shale resource. As discussed below, surface 
mining, in which all surface vegetation and soils are removed, is 
likely the preferred extraction method in these areas.
    The feasibility of oil shale and tar sands development was 
uncertain when the original proposed listing rule was withdrawn in 2006 
(71 FR 76024, December 19, 2006). Our January 19, 2006, proposed rule 
(71 FR 3158) concluded that Graham's beardtongue was at risk due to the 
increased potential of energy development, both traditional and oil 
shale and tar sands. Our December 19, 2006, withdrawal of the proposed 
rule (71 FR 76024) concluded that oil shale and tar sands development 
was likely to occur first in the Piceance Basin in Colorado or in other 
areas that do not overlap with the range of Graham's beardtongue, and 
to use underground mining technologies that reduce surface disturbance. 
We further concluded that development of oil shale and tar sands 
resources in Graham's beardtongue habitat was not likely to occur, if 
at all, until at least 20 years into the future, and was uncertain due 
to technological and economic uncertainty. But as discussed below, it 
is now highly likely that oil shale and tar sands mining will occur 
across the ranges of both of these species in the near future.
    In 2012, the BLM issued an Oil Shale and Tar Sands (OSTS) Final 
Programmatic Environmental Impact Statement (PEIS) analyzing the 
impacts of designating public lands as available for commercial leasing 
for oil shale and tar sands development in Colorado, Utah, and Wyoming. 
The PEIS opens approximately 144,473 ha (357,000 ac) in Utah and 10,522 
ha (26,000 ac) in Colorado for oil shale leasing, and approximately 
52,609 ha (130,000 ac) in Utah for tar sands leasing (BLM 2012b, p. ES-
10). Although leasing has not yet occurred, it is highly likely to 
happen in the near future.
    In Utah, 40 and 56 percent, respectively, of Graham's and White 
River beardtongues' total populations overlap the designated oil shale 
and tar sands leasing areas on BLM lands (Service 2013, p. 6). Existing 
regulatory mechanisms only provide limited protection to the 
beardtongues on Federal lands (see X. Inadequacy of Existing Regulatory 
Mechanisms, below). We know of 18,678 Graham's beardtongue plants on 
BLM lands, and 12,831 of these (or 69 percent) overlap designated oil 
shale and tar sands leasing areas. Our data also show that of 7,054 
White River beardtongue plants known to occur on BLM lands, 6,389 (or 
91 percent) overlap with designated oil shale and tar sands leasing 
areas. Designated oil shale leasing areas in Colorado do not overlap 
any known populations for either Graham's beardtongue or White River 
beardtongue--in fact, designated oil shale areas in Colorado are at 
least 32 km (20 mi) away from the closest known populations (Service 
2013, p. 7).
    Oil shale and tar sands development on Federal lands is likely to 
indirectly impact Graham's and White River beardtongues by increasing 
habitat fragmentation, fugitive dust, and weed encroachment. A majority 
of all known Graham's beardtongue and White River beardtongue plants on 
BLM land occurs where the overburden over the richest oil-shale-bearing 
geologic stratum is shallow--either outcropping or less than 152 m (500 
ft) subsurface (Service 2013, p. 5). Surface strip mining in these 
areas is likely to be the preferred extraction method (BLM 2012b, p. A-
22), which would result in the complete loss of all surface vegetation. 
Although direct impacts to Graham's and White River beardtongues on 
Federal lands will be minimized because existing conservation measures 
protect plants by 91 m (300 ft), the existing conservation measures are 
inadequate to minimize impacts from the indirect effects listed above 
or to protect from accidental loss that may occur (see X. Inadequacy of 
Existing Regulatory Mechanisms, below). These indirect effects are 
likely to impact 40 and 56 percent of all known plants of Graham's and 
White River beardtongues, respectively. Neither species is likely to be 
able to sustain this amount of impact and still be able to persist into 
the future. Protection of Graham's and White River beardtongues will 
need to happen on a landscape level to be effective at protecting these 
species from indirect and cumulative impacts (see XI. Cumulative 
Effects from All Factors, below) of oil shale and tar sands 
development, and this type of protection is not currently afforded to 
either species.
    Furthermore, about 41 percent and 38 percent, respectively, of 
Graham's and White River beardtongues occur on State and private lands 
where they are afforded no protection. Oil shale and tar sands 
development here is highly likely to directly remove all individuals of 
these two species, in particular where these species overlap with the 
oil-rich Mahogany layer. We estimate that most known Graham's and White 
River beardtongues on State and private lands occur where the Mahogany 
layer outcrops or is less than 152 m (500 ft) below the surface (or 
approximately 26 and 28 percent of the total known populations of 
Graham's and White River beardtongues, respectively), making these 
areas more likely to be surface mined. As a result, these areas are the 
most vulnerable to direct loss if oil shale and tar sands development 
expands across the region. The remainder of all known plants on State 
and private lands is likely to be impacted by increased disturbance 
from oil shale and tar sands development, but at worst may be lost as 
well. In addition, land ownership throughout the Uinta Basin is a 
checkerboard of private, State, and Federal ownership. Total losses of 
Graham's and White River beardtongues on private and State lands will 
have additional, indirect impacts through habitat fragmentation on 
those individuals occurring on Federal lands.
    In the past, we concluded that oil shale and tar sands development 
was economically uncertain due to the highly volatile energy market (71 
FR 76024, December 19, 2006). Indeed, oil shale and tar sands are more 
expensive to produce than conventional oil (BLM 2011, entire). In 
addition, the amount of water required to process these oil sources was 
considered a technological limitation (BLM 2011, entire). Despite these 
difficulties, three oil shale projects or explorations are planned on 
private, State, and BLM lands in Uintah County, Utah. The first project 
is proposed by Enefit American Oil, which is wholly owned by the 
Estonian government. In 2011, Enefit acquired all of the assets owned 
by Oil Shale Exploration Company (BLM 2012b, p. A-76). This includes an 
oil shale research, development, and demonstration (RD&D) lease 
property on BLM land in the Uinta Basin, Utah. Enefit's planned 
operations include completing the RD&D project and expanding operations 
to the surrounding lands that they privately own. Enefit expects to 
begin construction of an industrial development complex in 2017, with 
commercial production online by 2020 (Bernard and Hughes 2012, p. 18; 
Bernard 2013, p. A-11).
    The Enefit project will develop oil shale operations on up to 
10,117 ha (25,800 ac) of private and State property using surface and 
subsurface mining techniques (Enefit 2012, p. 6). Surface mining will 
occur where the oil shale formation is outcropped or covered by

[[Page 47600]]

a minimal amount of overburden (Enefit 2012, p. 6), resulting in the 
removal of all soils and vegetation in the area. The project area 
overlaps 19 percent of all known Graham's beardtongue plants and 26 
percent of all known White River beardtongue plants (Service 2013, p. 
9). At worst, all of the Graham's and White River beardtongues plants 
growing in this project area will be lost. At best, the Enefit project 
will fragment habitat and reduce connectivity for both species. 
Populations 19 and 20 of Graham's beardtongue will be impacted, 
reducing gene flow between the Utah and Colorado populations of 
Graham's beardtongue. The Enefit project occurs in the heart of White 
River beardtongue's distribution, and all Utah populations (excluding 
the Colorado population, 7, see Figure 2) will become more highly 
fragmented with more isolated populations that are vulnerable to 
extinction.
    A second project will be conducted by Red Leaf Resources on Utah 
School and Institutional Trust Lands Administration (SITLA) land, 
within population 13 (see Figure 1) and overlapping 627 known Graham's 
beardtongue plants (about 2 percent of all known plants). Oil shale 
will be surface mined at the site, removing all soils and vegetation in 
the area. This project was initially planned to begin in 2013 (Bernard 
and Hughes 2012, entire), but is postponed awaiting the results of 
preliminary water monitoring (Loomis 2012, entire; Baker 2013, entire). 
The third project is an application by Ambre Energy to drill oil shale 
test wells on BLM land in the Vernal Field Office area, planned to 
begin in 2013. The applicant for this project proposes to drill 6 test 
wells, 3 of which occur in known Graham's beardtongue habitat, although 
individual plants will be avoided by 91 m (300 ft). Neither of these 
projects overlaps with White River beardtongue.
    Tar sands lease areas overlap 24 and 3 percent of the total known 
populations of Graham's and White River beardtongues, respectively. The 
impacts of tar sands mining will be similar to those from oil shale 
mining. However, we are aware of only one approved proposed tar sands 
project in the State of Utah (Loomis 2012, p. 1), and the project does 
not overlap with any known populations of Graham's beardtongue or White 
River beardtongue.
    In summary, the total impact of the currently planned oil shale 
development projects alone (Enefit, Red Leaf) is substantial. The 
likely loss of up to 21 percent (19 percent from Enefit and 2 percent 
from Red Leaf) of Graham's beardtongue and 26 percent (all from the 
Enefit project) of White River beardtongue will decrease the viability 
of both species by reducing total numbers and increasing habitat 
fragmentation, which will lead to smaller and more isolated populations 
that are prone to extinction (see VIII. Small Population Size, below). 
Moreover, the initiation of these projects (including the drilling of 
test wells on BLM lands) and the recent BLM leasing decisions indicate 
the renewed interest in oil shale and tar sands mining and the 
increased likelihood of development across the ranges of these two 
species. As described above, we estimate that 26 and 28 percent of all 
known Graham's and White River beardtongues occur on non-federal lands 
where the Mahogany layer outcrops or is less than 152 m (500 ft) below 
the surface (the number of Graham's beardtongue on non-federal lands 
will increase by 1 percent within the next year through a land 
exchange; see X. Inadequacy of Existing Regulatory Mechanisms, below) 
and are vulnerable to total loss if oil shale and tar sands development 
proceeds, which appears likely.
    On BLM lands, 40 and 56 percent of all known Graham's and White 
River beardtongues are located within potential oil shale and tar sands 
lease areas. Most also occur on Mahogany oil-shale ledge outcroppings 
or where the overburden is shallow, meaning that surface mining would 
be the preferable extraction methodology, with the resulting loss of 
all surface vegetation. By adding the number of plants likely to be 
impacted by oil shale and tar sands development across all landowners 
(Table 3), we estimate that as much as 82 and 94 percent of the total 
known populations of Graham's and White River beardtongues will be 
vulnerable to both direct loss and indirect negative impacts such as 
habitat fragmentation from oil shale and tar sands development. These 
levels of impact are likely to lead to severe declines in both species 
across their ranges.
    Table 3. Total percent of populations likely to be impacted by oil 
shale and tar sands development.

----------------------------------------------------------------------------------------------------------------
                                                       Graham's beardtongue           White River beardtongue
                                                 ---------------------------------------------------------------
                                                                            
                                                      plants          % total         plants          % total
----------------------------------------------------------------------------------------------------------------
BLM Oil Shale and Tar Sands Lease Areas.........          12,831              40           6,389              56
Private and State Lands.........................          13,024              41           4,369              38
                                                 ---------------------------------------------------------------
    Total.......................................          25,855              82          10,758              94
----------------------------------------------------------------------------------------------------------------
* Totals may not sum due to rounding.

Traditional Oil and Gas Drilling
    Historically, impacts to both beardtongue species from traditional 
oil and gas development were largely avoided because development within 
the species' habitat was minimal. However, the previously described 
Energy Policy Act of 2005 enables leasing of oil and gas and tar sands 
separately, even when the two are found in the same area. Previously, 
the law required a combined tar sands/oil and gas lease, effectively 
delaying leasing and extraction of oil and gas in tar sand areas 
because of concerns about conflicts between tar sands and traditional 
oil and gas development. Overall, the Energy Policy Act of 2005 
effectively opened the entire range of both species to leasing for oil 
and gas development and made that leasing more efficient and effective.
    The impacts of traditional oil and gas development on Graham's and 
White River beardtongues are expected to be high (BLM 2008b, p. 457). 
Although a high level of development within these species' habitats is 
not yet realized, we expect it to increase in the future. Most of the 
ranges of Graham's and White River beardtongues are underlain with 
deposits of traditional hydrocarbon resources, primarily natural gas 
(Service 2013, p. 8). In the past two decades, oil and gas production 
in Uintah County, Utah, has increased substantially. For example, oil 
production in Uintah County increased about 60 percent from 2002 to 
2012, and gas production increased about 25 percent over this same time 
period (Utah Division of Oil 2012, entire). Drilling activities in 
Uintah County continue to increase: The number of new wells drilled in 
Uintah

[[Page 47601]]

County was 316 in 2009, and 631 in 2012 (Utah Division of Oil 2012, 
entire).
    To quantify how much drilling has occurred within Graham's and 
White River beardtongues' habitat, we used the following methods to 
identify an analysis area for impacts to the species based upon the 
currently known plant locations and adjacent essential pollinator 
habitat. For Graham's beardtongue, we created an analysis area using 
known locations plus a distance of 700 m (2,297 ft) for pollinators. 
For White River beardtongue, we created an analysis area using known 
locations plus a distance of 500 m (1,640 ft) for pollinators. These 
distances (700 m and 500 m) were based on pollinator travel distance 
for important pollinators for each species (see Species Information, 
``Biology'' for each plant, above). We then calculated the number of 
wells currently drilled within these areas.
    Within the Graham's beardtongue analysis area, well drilling has 
occurred at a comparatively slow pace thus far: As of January 2013, 45 
well pads were developed or approved within the analysis area for 
Graham's beardtongue, and 35 of these are in Utah (Service 2013, p. 8). 
We do not know actual surface disturbance associated with each well, so 
we estimate 5 acres of surface disturbance per well pad (based on 
assumptions made in the Vernal BLM Resource Management Plan (RMP) (BLM 
2008b, p. 4-3)), including disturbance from associated roads and 
pipelines. Accordingly, we estimate that 103 ha (255 ac) of Graham's 
beardtongue habitat are disturbed from energy development, which is 
less than 1 percent of the total area included within the analysis area 
across the Graham's beardtongue's range.
    Development within the White River beardtongue analysis area is 
similar; as of January 2013, 13 well pads were developed or approved in 
the White River beardtongue analysis area, 8 of which are in Utah 
(Service 2013, p. 8). Using the methods described above, less than 1 
percent (26 ha (65 ac)) of the total area included within the White 
River beardtongue analysis area is likely disturbed by existing oil and 
gas activities.
    Approximately 33 percent of the analysis areas for Graham's 
beardtongue and 20 percent for White River beardtongue, respectively, 
on State and Federal land are leased for traditional oil and gas 
development (Service 2013, p. 11). At the time of this analysis, one 
planned seismic exploration project overlaps with habitat for both 
beardtongue species. The initiation of this project indicates that 
traditional oil and gas development will very likely increase in the 
habitat of both of these species. Our estimate of impacts is likely an 
underestimate because we do not have information about how much private 
land is planned for development.
    Although some oil and gas drilling to date has certainly impacted 
individuals of Graham's and White River beardtongues, development has 
not been at a high enough level to negatively impact the whole species. 
Additionally, neither Graham's beardtongue nor White River beardtongue 
currently appears to suffer from pollinator limitation (Lewinsohn and 
Tepedino 2007, entire; Dodge and Yates 2009, p. 12). Furthermore, 
populations monitored for 9 years are stable (Dodge and Yates 2011, 
entire). However, substantial numbers of Graham's and White River 
beardtongue individuals (and their habitat) occur in areas that are 
leased for oil and gas development (Table 4), and thus it is reasonable 
to conclude that the impacts of oil and gas activity will increase in 
the future as additional areas are developed.
    Table 4. Graham's and White River beardtongue known plants 
(rangewide) within leased oil and gas areas on both BLM and State lands 
(Service 2013, p. 11). These were calculated based on oil and gas 
leases alone and may include overlap with oil shale and tar sands. 
Percentages may not add due to rounding.

----------------------------------------------------------------------------------------------------------------
                                                       Graham's beardtongue           White River beardtongue
                                                 ---------------------------------------------------------------
                                                                            
                                                      plants          % total         plants          % total
----------------------------------------------------------------------------------------------------------------
BLM Leases......................................           8,829              14           2,547              11
State Leases....................................           4,269              13           1,278              11
                                                 ---------------------------------------------------------------
    Total.......................................          13,098              27           3,825              22
----------------------------------------------------------------------------------------------------------------

Summary of All Energy Development
    Several new oil shale projects are planned for the future (by 2020) 
within Graham's and White River beardtongue habitat. For the two 
projects occurring on private or State lands (Enefit and Redleaf) for 
which we have enough information to estimate impacts, substantial 
impacts are likely to occur for both species: Approximately 21 and 26 
percent of the total known populations of Graham's and White River 
beardtongues in the center of their ranges are vulnerable to direct 
loss and the effects of increased disturbance. These direct impacts 
will reduce the redundancy and representation of both species. Although 
the market for oil shale and tar sands may still be uncertain, the 
commencement of these projects indicates progress toward imminent 
future development of oil shale and tar sands resources within the 
range of these species.
    On BLM lands, approximately 40 and 56 percent of all known Graham's 
and White River beardtongue plants fall within areas that are open for 
oil shale and tar sands leasing, although these areas have not yet been 
leased. Twenty-seven and 22 percent of all known Graham's and White 
River beardtongue plants, respectively, fall within areas that are 
leased by the BLM and the State of Utah for traditional oil and gas 
development. Many, but not all, of these lease areas overlap with each 
other so that combined, we estimate that 50 and 66 percent of Graham's 
beardtongue and White River beardtongue, respectively, are on BLM lands 
within areas that are either leased for oil and gas development or open 
to leasing for oil shale and tar sands (Table 5).
    Table 5. Areas identified for energy development for Graham's 
beardtongue and White River beardtongue across all landowner types. 
Numbers are not additive because many of these areas overlap.

[[Page 47602]]



----------------------------------------------------------------------------------------------------------------
                                                       Graham's beardtongue           White River beardtongue
                                                 ---------------------------------------------------------------
                                                                            
                                                      plants        % of total        plants        % of total
----------------------------------------------------------------------------------------------------------------
Existing BLM oil and gas leases.................           4,389              14           1,260              11
Vernal BLM Field Office 2013 proposed leases....           2,458               8             130               1
Meeker BLM Field Office 2013 proposed leases....               1               0               2               0
BLM oil shale and tar sands lease areas.........          12,831              40           6,389              56
Total Number of Plants that Overlap with All              15,750              50           7,531              66
 Energy Types on BLM Lands or Leases............
Existing State of Utah oil and gas leases.......           4,269              13           1,278              11
Private and State lands (we assume all of these           13,024              41           4,369              38
 lands are open to energy development of any
 kind)..........................................
Total Number of Plants that Overlap with All              28,733              91          11,395             100
 Energy Types Across All Landowners.............
----------------------------------------------------------------------------------------------------------------

    Even though individuals of these species on BLM lands will be 
mostly protected from direct loss through the 91-m (300-ft) setback 
conservation measure, a majority of both species will still be 
susceptible to the indirect effects of energy development (with an 
additional 1 percent of Graham's beardtongue likely to experience 
direct impacts when the land exchange is finalized; see X. Inadequacy 
of Existing Regulatory Mechanisms, below). In total, we estimate that 
91 and 100 percent of Graham's and White River beardtongues are 
vulnerable to the impacts of all types of energy development across all 
landowners (Table 5). The indirect impacts from oil and gas 
development, such as habitat fragmentation and loss, are likely to 
reduce the resiliency of both species so that they cannot recover from 
most stressors. In conclusion, we consider energy exploration and 
development a future threat that will have a significant impact on both 
species.
II. Grazing and Trampling
    Invertebrates, wildlife, and livestock all graze directly on 
individuals of Graham's and White River beardtongues (Sibul and Yates 
2006, p. 9; Dodge and Yates 2010, p. 9; 2011, pp. 9, 12; UNHP 2012, 
entire). Grazers feed on all parts of the plant, including the seeds, 
damaging or destroying individual plants and effectively reducing their 
reproductive success.
    It is likely that livestock are not the primary grazers of Graham's 
or White River beardtongues. High rates of herbivory on both 
beardtongue species was reported in every year of a 9-year monitoring 
study (Dodge and Yates 2011, pp. 7, 9). The impact of this herbivory 
was to reduce fruit and seed production (Dodge and Yates 2011, pp. 7, 
9). The herbivory was attributed to rabbits, cattle, large mammals, 
deer, and invertebrates (Dodge and Yates 2011). In particular, tiger 
moth caterpillars (possibly Arctia caja utahensis, although this 
identification has not been positively confirmed) were noted on 
Graham's beardtongue plants at one site in 2009 and 2010 (Dodge and 
Yates 2011; Tepedino 2012). In these years, herbivory rates (measured 
by the number of plants browsed) were as high as 59 and 68 percent, 
respectively (Dodge and Yates 2011, p. 4). The grazing pressure 
fluctuates, however, as lower herbivory (28.6 percent) was noted in 
2011, and plants at this site rebounded in size and reproduction to 
match other sites that experienced little to no grazing (Dodge and 
Yates 2011, p. 4).
    The level of herbivory within all of the long-term monitoring plots 
for both beardtongue species fluctuated greatly over the course of the 
study. For Graham's beardtongue, across all monitoring sites and years, 
herbivory ranged from 4.7 to 84 percent; for White River beardtongue, 
herbivory ranged from 1.3 to 91 percent (Dodge and Yates 2011, entire). 
Herbivory appeared to decrease at times due to delayed plant 
development from the cool, wet springs of 2010 and 2011 (Dodge and 
Yates 2011, pp. 10-11). Despite high levels of herbivory, the 
populations were mostly stable over 9 years of monitoring (McCaffery 
2013a, p. 4). Presumably, beardtongues would be adapted to herbivory by 
native grazers, which may explain why populations continue to remain 
stable despite high levels of herbivory.
    Everywhere Graham's and White River beardtongues grow on BLM lands, 
they fall within a grazing allotment. This accounts for approximately 
59 percent of all known Graham's beardtongue plants and 62 percent of 
all White River beardtongue plants. Most Graham's beardtongue plants 
occur within approximately 19 allotments with both sheep and cattle 
use. Seasons of use vary considerably, with most allotments grazed over 
the winter (from November or December to April), although some 
allotments are grazed in the spring and summer (BLM 2008c, pp. J1-4). 
Most White River beardtongue plants occur within six allotments: four 
sheep allotments with a season of use from October to May, one sheep 
allotment (Raven Ridge in Colorado) grazed from November to February, 
and one cattle allotment with season of use from April to June and 
October to February (BLM 2008c, pp. J1-4). Grazing in the spring and 
summer are more likely to directly impact beardtongue individuals than 
grazing in the winter. In addition, sheep are more likely to graze on 
forbs than cattle (Cutler 2011, entire); thus beardtongue individuals 
within sheep allotments are more likely to be grazed than those in 
cattle allotments. On the other hand, grazing pressure may have less of 
an impact on the beardtongues than it has in the past--in the past 
decade, BLM has reduced the number of grazing sheep by half on many of 
the allotments (Cutler 2011, entire). Grazing also likely occurs across 
other landowners, although we do not have data on these other lands.
    Besides impacts from grazing, which we do not believe is negatively 
impacting Graham's or White River beardtongue at the species level, 
domestic livestock can impact rare and native plants by trampling them. 
As discussed in our 2006 proposed rule for Graham's beardtongue (71 FR 
3158, January 19, 2006), trampling from domestic livestock may have 
localized effects on this species. We believe one population of 
Graham's beardtongue was eradicated by livestock trampling (Neese and 
Smith 1982, p. 66). Winter sheep grazing is the principal use across 
the range of White River beardtongue habitat, where sheep trailing 
(walking) likely results in damage or loss of plants (Franklin 1995, p. 
6; UNHP 2012, entire). It is likely that some individuals of both 
beardtongue species, and particularly White River beardtongue as it 
tends to grow on slightly steeper slopes (see Species Information, 
``Habitat'' for both beardtongues above), are afforded some protection 
from

[[Page 47603]]

trampling by cattle where they grow on steep slopes, as cattle 
generally avoid steep slopes and primarily graze on gentle slopes. 
However, this would not prevent trampling by sheep, which are not 
deterred by steep slopes.
    Livestock grazing can negatively impact native plants indirectly 
through habitat degradation or by influencing plant community 
composition. Across the Colorado Plateau, livestock trampling and 
trailing breaks and damages biological soil crusts (Belnap and Gillette 
1997, entire); alters plant community composition (Cole et al. 1997, 
entire); spreads and encourages weed seed establishment (Davies and 
Sheley 2007, p. 179); increases dust emissions (Neff et al. 2008, 
entire); and compacts soils, affecting water infiltration, soil 
porosity, and root development (Castellano and Valone 2007, entire). 
Crusts are not known to be a major component of the soils that Graham's 
and White River beardtongues inhabit, but livestock likely have altered 
the physical features of the plants' habitats. Although we do not have 
data indicating how livestock grazing has indirectly impacted Graham's 
beardtongue or White River beardtongue habitat, the invasive species 
cheatgrass, purple mustard, halogeton, and prickly Russian thistle have 
been documented growing with both beardtongues (see VII. Invasive 
Weeds, below) (Fitts and Fitts 2009, p. 23; CNHP 2012, entire; Service 
2012a, entire; UNHP 2012, entire). We assume that grazing has caused 
ecological changes, including nonnative weed invasion and other 
physical changes, within beardtongue habitats. We make this assumption 
because of landscape-level ecological changes--such as annual weed 
invasion, plant community changes, and loss of biological soil crusts--
known to have occurred across the Colorado Plateau due to introduced 
grazers such as cattle, horses, and sheep (Mack and Thompson 1982, 
entire; Cole et al. 1997, entire). We do not know the extent and 
severity of these changes.
    In summary, herbivory and trampling from grazing on some locations 
of Graham's and White River beardtongues appear to be severe during 
some years, and it is likely that similar impacts occur across the 
ranges of the species. The documented effects of herbivory and 
trampling on Graham's and White River beardtongues to date are limited 
to a reduction in reproductive output in some years at specific sites 
and the possible loss of a historical population, rather than 
widespread impacts on habitat or population-level impacts on the 
species. Despite high levels of herbivory, populations appear to be 
stable. At present, we find that both species have sufficient 
resiliency, redundancy, and representation to recover from existing 
grazing and trampling impacts. Thus, we do not consider grazing to be a 
threat to these species. This factor should continue to be monitored, 
as the cumulative effects of livestock grazing, particularly habitat 
alteration, coupled with other disturbances may have a more severe 
negative effect on beardtongue species (see section XI. Cumulative 
Effects from All Factors, below, for more details). In particular, 
changing climate patterns may change the effects associated with 
herbivory from native grazers (see IX. Climate Change, below).
III. Unauthorized Collection
    In our 2006 proposed rule (71 FR 3158, January 19, 2006), we 
determined that unauthorized collection of Graham's beardtongue may 
occur, but we never explicitly stated whether we believed it posed a 
threat to the species. Indeed, Graham's beardtongue is a unique and 
charismatic species that is prized by collectors and, at least at one 
point in time, was available commercially online (71 FR 3158, January 
19, 2006). We know of no recent attempts to collect this species 
without proper authorizations. We are not aware of any instances where 
White River beardtongue was collected without proper authorizations 
that ensure species conservation. Although unauthorized collection may 
destroy some individuals, it is not likely to extirpate entire 
populations or lead to species-level impacts. Therefore, we do not 
consider unauthorized collection a threat to either beardtongue 
species.
IV. Off-Highway Vehicle Use
    The use of off-highway or off-road vehicles (OHVs) may result in 
direct loss or damage to plants and their habitat through soil 
compaction, increased erosion, invasion of noxious weeds, and 
disturbance to pollinators and their habitat (Eckert et al. 1979, 
entire; Lovich and Bainbridge 1999, p. 316; Ouren et al. 2007, entire; 
BLM 2008b, pp. 4-94; Wilson et al. 2009, p. 1). To date, little OHV use 
has occurred within the ranges of Graham's beardtongue and White River 
beardtongue. For example, unauthorized OHV use was observed at four 
locations within White River beardtongue occupied habitat 10 to 20 
years ago (UNHP 2012, entire). Federal and industry personnel were 
increasingly using OHVs in oil and gas field surveys and site location 
developments prior to 2008. However, since 2008, the revised Vernal 
Field Office Resource Management Plan (RMP) limits all vehicles to 
designated routes (BLM 2008c, p. 46). This protective measure provides 
conservation benefits within the habitat of Graham's and White River 
beardtongues. Given the low levels of documented unauthorized OHV use 
and the protections provided by the BLM Vernal RMP, we do not consider 
OHV use a threat to either beardtongue species.
V. Road Maintenance and Construction
    Roads that cross through rare plant habitat can destroy habitat and 
populations, increase road dust, and disturb pollinators (Trombulak and 
Frissell 2000, entire). We consider this issue separately from roads 
created for oil and gas development, discussed above (see I. Energy 
Exploration and Development, above), although the effects are the same.
    Many unpaved county roads cross through Graham's and White River 
beardtongue habitat, and most of these roads have existed for decades. 
Plants located near unpaved roads are prone to the effects of dust, 
fragmentation, and pollinator disturbance (see I. Energy Exploration 
and Development, above, for a thorough discussion of road effects). 
Conflicts can also arise from new paved roads or road upgrades, as 
described below.
    In 2012, Seep Ridge Road, a formerly unpaved county road crossing 
through occupied Graham's beardtongue habitat, was re-aligned and 
paved. At least 322 individuals were within 300 feet of the proposed 
right-of-way. This project resulted in direct impacts to at least 31 
Graham's beardtongue individuals that were transplanted out of the 
widened road right-of-way. The transplants will be revisited in 2013, 
but we do not expect any of them to have survived due to the drought 
conditions during the transplant (Dodge 2013, entire). The paving of 
Seep Ridge Road reduces the impacts of fugitive dust on the population 
of Graham's beardtongue bisected by the road. However, the widened road 
corridor directly decreased the number of plants on the east side of 
the road and may impede pollinator movement, leading to this population 
of Graham's beardtongue becoming more isolated. This patch may be more 
susceptible to extinction, although further study of this population 
and its genetic diversity should be undertaken.
    Two of the long-term monitoring plots for Graham's and White River 
beardtongues are immediately adjacent to unpaved roads, and these 
populations were stable over the 9 years of the study (Dodge and Yates 
2011, pp. 9, 12;

[[Page 47604]]

McCaffery 2013a, p. 4). However, one monitoring plot of White River 
beardtongue produces fewer flowers and fruits than other sites of White 
River beardtongue, potentially because of increased disturbance due to 
the nearby road (Dodge and Yates 2011, p. 12).
    In summary, road maintenance and construction can destroy habitat 
and fragment populations, but this impact is site-specific and does not 
occur across the entire range of the species. Besides the Seep Ridge 
Road project, these types of projects occur infrequently, and we are 
not aware of other road construction or maintenance projects that have 
occurred, or are proposed to occur, in areas where they would impact 
Graham's beardtongue or White River beardtongue. Therefore, we do not 
consider road maintenance and construction to be a threat to either 
beardtongue species.
VI. Wildfire
    In 2012, the Wolf Den Fire, believed to be started by dry 
lightning, burned 8,112 ha (20,046 ac) in Uintah County, including 394 
ha (974 ac), approximately 1.5 percent, of the area within 700 m (2,297 
ft) of known points of Graham's beardtongue and approximately 563 known 
plants (1.8 percent of the total known number of plants). No 
individuals of White River beardtongue were affected by this fire. 
Fires do not occur frequently in Graham's beardtongue or White River 
beardtongue habitat, but fire frequency and intensity is likely to 
increase with increased invasive weeds and climate change (see sections 
VII. Invasive Weeds, IX. Climate Change, and XI. Cumulative Effects 
from All Factors, below, for more information). At present, we do not 
expect wildfires at a large enough scale to pose a threat to either 
species. In addition, we do not yet know how these species respond to 
fire. It is likely that with patchy, low-intensity burns they would be 
able to re-sprout from their roots, which we have documented in the 
field for Graham's beardtongue (Brunson 2012, entire). We do not 
consider wildfire alone a threat to either species.
VII. Invasive Weeds
    We noted the presence of the invasive, nonnative weeds cheatgrass 
and halogeton in Graham's beardtongue habitat in our 2006 proposed rule 
(71 FR 3158, January 19, 2006). Prickly Russian thistle and purple 
mustard also occur in Graham's and White River beardtongue habitat 
(Service 2012c, entire). The weeds have not been noted as highly 
prevalent in the barren oil shale soils where the beardtongue species 
grow, although this has never been directly studied. However, these 
invasive weeds are numerous in the habitat and plant communities 
immediately adjacent to beardtongue species habitat, most notably along 
disturbances (for example, roads and well pads) (Service 2012c, 
entire).
    The spread of nonnative, invasive species is considered the second 
largest threat to imperiled plants in the United States (Wilcove et al. 
1998, p. 2). Invasive plants--specifically exotic annuals--negatively 
affect native vegetation, including rare plants. One of the most 
substantial effects is the change in vegetation fuel properties that, 
in turn, alters fire frequency, intensity, extent, type, and 
seasonality (Menakis et al. 2003, p. 282; Brooks et al. 2004, entire; 
McKenzie et al. 2004, entire). Shortened fire return intervals make it 
difficult for native plants to reestablish or compete with invasive 
plants (D'Antonio and Vitousek 1992, pp. 68-77). Invasive weeds can 
exclude native plants and alter pollinator behaviors (D'Antonio and 
Vitousek 1992, pp. 68-77; DiTomaso 2000, p. 257; Mooney and Cleland 
2001, pp. 74-75; Traveset and Richardson 2006, pp. 211-213). For 
example, cheatgrass outcompetes native species for soil, nutrients, and 
water (Melgoza et al. 1990, pp. 9-10; Aguirre and Johnson 1991, pp. 
352-353).
    Cheatgrass is a particularly problematic nonnative, invasive annual 
grass in the Intermountain West and, as discussed above, has been 
documented in Graham's and White River beardtongue habitat. If already 
present in the vegetative community, cheatgrass increases in abundance 
after a wildfire, increasing the chance for more frequent fires 
(D'Antonio and Vitousek 1992, pp. 74-75). In addition, cheatgrass 
invades areas in response to surface disturbances (Hobbs 1989, pp. 389-
398; Rejmanek 1989, pp. 381-383; Hobbs and Huenneke 1992, pp. 324-330; 
Evans et al. 2001, p. 1,308). Cheatgrass is likely to increase due to 
climate change because invasive annuals increase biomass and seed 
production at elevated levels of carbon dioxide (Mayeaux et al. 1994, 
p. 98; Smith et al. 2000, pp. 80-81; Ziska et al. 2005, p. 1,328).
    We have limited information on how much invasive weeds have 
impacted Graham's and White River beardtongues across their ranges, 
although it is likely that this is a factor that will increase in the 
future due to increased disturbance from oil and gas development, 
grazing (see II. Grazing and Trampling, above), and climate change. We 
do not currently consider invasive weeds alone to be a threat to either 
beardtongue species. However, with the amount of energy development 
that is likely to occur across the ranges of both species in the future 
(see I. Energy Exploration and Development, above), and given the 
likelihood that invasive species will increase with climate change (see 
XI. Cumulative Effects from All Factors, below), we conclude that 
invasive weeds are a future threat to these species.
VIII. Small Population Size
    We lack complete information on the population genetics of Graham's 
and White River beardtongues. Preliminary genetic analysis shows that 
both beardtongues have less diversity than more common beardtongue 
species that have overlapping ranges (Arft unpublished report 2002). As 
previously described (see Background, ``Biology'' for both plants, 
above), both species have mixed mating systems and are thus capable of 
producing seed through self-fertilization or cross-pollination. 
However, the highest number of seeds and fruits are produced when 
flowers are cross-pollinated (Lewinsohn and Tepedino 2007, pp. 233-
234). Increased disturbance and habitat fragmentation resulting in 
smaller population sizes could negatively impact both species because 
there would be fewer plants available for cross-pollination.
    Small populations and species with limited distributions are 
vulnerable to relatively minor environmental disturbances (Given 1994, 
pp. 66-67). Small populations also are at an increased risk of 
extinction due to the potential for inbreeding depression, loss of 
genetic diversity, and lower sexual reproduction rates (Ellstrand and 
Elam 1993, entire; Wilcock and Neiland 2002, p. 275). 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 (S.C.H. and Kohn 1991, pp. 4, 28; Newman and 
Pilson 1997, p. 360).
    Populations of either species with fewer than 150 individuals are 
more prone to extinction from stochastic events (McCaffery 2013b, p. 
1). Overall, it appears that Graham's beardtongue has many small 
populations scattered across its range, although the largest population 
(population 19, which will be impacted should the Enefit project 
continue as planned) contains more than 10,000 plants. Of the 24 
populations of Graham's beardtongue, approximately 15 contain fewer 
than 150 known plants. That means more than half the known populations 
are more prone to extinction from stochastic events due to small 
population size.

[[Page 47605]]

However, these populations account for 1 percent of the total known 
number of plants of Graham's beardtongue. Additionally, the numbers in 
our files do not necessarily represent complete population counts; some 
populations likely contain more plants and some fewer. On the other 
hand, its scattered distribution may contribute to Graham's 
beardtongue's overall viability and potential resilience. For example, 
small-scale stochastic events, such as the erosion of a hillside during 
a flood event, will likely impact only a single population or a portion 
of that population. Even larger, landscape-level events such as 
wildfires are not likely to impact the species as a whole (see section 
VI. Wildfire, above). We do not find that small population size is 
currently a species-level concern for Graham's beardtongue, although 
this is likely to change after oil shale development occurs (see XI. 
Cumulative Effects from All Factors, below).
    White River beardtongue has only seven populations, and two of 
these have fewer than 150 individual plants. These two smaller 
populations account for less than 1 percent of the total species' 
population. As with Graham's beardtongue, these counts are based on 
incomplete surveys and are not necessarily representative of actual 
conditions on the ground. In addition, large areas of suitable habitat 
remain unsurveyed, so this species may be more widely distributed and 
populations are likely to have different numbers of plants than 
presented here. However, this species' range is much smaller than that 
of Graham's beardtongue, and thus we conclude that White River 
beardtongue may be more prone to extinction from landscape-level 
events.
    In the absence of information identifying threats to the species 
and linking those threats to the rarity of the species, we do not 
consider small population size alone to be a threat. A species that has 
always been rare, yet continues to survive, could be well equipped to 
continue to exist into the future. This may be particularly true for 
Graham's and White River beardtongues. Many naturally rare species have 
persisted for long periods within small geographic areas, and many 
naturally rare species exhibit traits that allow them to persist, 
despite their small population sizes. Consequently, the fact that a 
species is rare does not necessarily indicate that it may be in danger 
of extinction in the future.
    Based on Graham's and White River beardtongues' current population 
numbers and preliminary demographic analyses showing populations are, 
for the most part, stable, we conclude that small population size is 
not currently a threat to these species. However, this may change in 
the future as energy development in these species' habitat increases 
and the populations become smaller and more fragmented (see section XI. 
Cumulative Effects from All Factors, below).
IX. Climate Change
    Our analyses under the Act include consideration of ongoing and 
projected changes in climate. The terms ``climate'' and ``climate 
change'' are defined by the Intergovernmental Panel on Climate Change 
(IPCC). ``Climate'' refers to the mean and variability of different 
types of weather conditions over time, with 30 years being a typical 
period for such measurements, although shorter or longer periods also 
may be used (IPCC 2007, p. 78). The term ``climate change'' thus refers 
to a change in the mean or variability of one or more measures of 
climate (e.g., temperature or precipitation) that persists for an 
extended period, typically decades or longer, whether the change is due 
to natural variability, human activity, or both (IPCC 2007, p. 78). 
Various types of changes in climate can have direct or indirect effects 
on species. These effects may be positive, neutral, or negative and 
they may change over time, depending on the species and other relevant 
considerations, such as the effects of interactions of climate with 
other variables (e.g., habitat fragmentation) (IPCC 2007, pp. 8-19). In 
our analyses, we use our expert judgment to weigh relevant information, 
including uncertainty, in our consideration of various aspects of 
climate change.
    Climate change is potentially impacting Graham's and White River 
beardtongues now, and could continue to impact these species into the 
future. Over the last 50 years, average temperatures have increased in 
the Northern Hemisphere and extreme weather events have changed in 
frequency or intensity, including fewer cold days and nights, fewer 
frosts, more heat waves, and more hot days and nights (IPCC 2007, p. 
30). In the southwestern United States, average temperatures increased 
approximately 1.5 degrees Fahrenheit ([deg]F) compared to a 1960 to 
1979 baseline (Karl 2009, p. 129). Climate modeling is not currently to 
the level of detail at which we can predict the amount of temperature 
and precipitation change precisely within the limited ranges of these 
two beardtongue species. Therefore, we generally address what could 
happen under current climate projections based upon what we know about 
the biology of these two species.
    Climate changes will continue as hot extremes, heat waves, and 
heavy precipitation will increase in frequency, with the Southwest 
experiencing the greatest temperature increase in the continental 
United States (Karl 2009, p. 129). Annual mean precipitation levels are 
expected to decrease in western North America and especially the 
southwestern States by mid-century (IPCC 2007, p. 8; Seager et al. 
2007, p. 1,181), with a predicted 10- to 30-percent decrease in 
precipitation in mid-latitude western North America by the year 2050 
(Milly et al. 2005, p. 1). These changes are likely to increase drought 
in the areas where Graham's and White River beardtongues grow.
    We do not have a clear understanding of how Graham's and White 
River beardtongues respond to precipitation, although generally plant 
numbers decrease during drought years and recover in subsequent seasons 
that are less dry. Graham's beardtongue may not respond as quickly as 
White River beardtongue to increased winter and spring moisture 
immediately preceding the growing season (Lewinsohn and Tepedino 2007, 
pp. 12-13). In addition, Graham's beardtongue flowering is sporadic and 
may be responding to environmental factors that we have not been able 
to measure in the field, such as precipitation. Graham's beardtongue 
may need more than one year of normal precipitation to recover from 
prolonged drought (Lewinsohn 2005, p. 13), although this hypothesis has 
not been tested. Conversely, current analyses indicate that there is no 
association between regional precipitation patterns and population 
demographics (McCaffery 2013a, p. 4), although regional weather 
stations used in the analysis are not likely to pick up site-specific 
precipitation that is more likely to influence these species' vital 
rates.
    That these beardtongues are adapted to living on such hot and dry 
patches of soils (even more so than other native species in the same 
area) may mean they are better adapted to withstand stochastic events 
such as drought. However, increased intensity and frequency of droughts 
may offer Graham's and White River beardtongues populations fewer 
chances to recover and may lead to a decline in both species. Some 
estimate that approximately 20 to 30 percent of plant and animal 
species are at increased risk of extinction if increases in global 
average temperature exceed 2.7 to 4.5[emsp14][deg]F (1.5 to 2.5 [deg]C) 
(IPCC 2007, p. 48). By the end of this century, temperatures are 
expected to exceed this range by

[[Page 47606]]

warming a total of 4 to 10[emsp14][deg]F (2 to 5 [deg]C) in the 
Southwest (Karl 2009, p. 129).
    Accelerating rates of climate change of the past 2 or 3 decades 
indicate that the extension of species' geographic range boundaries 
toward the poles or to higher elevations by progressive establishment 
of new local populations will become increasingly apparent in the 
relatively short term (Hughes 2005, p. 60). The limited range of oil 
shale substrate that Graham's and White River beardtongues inhabit 
could limit the ability of these species to adapt to changes in 
climactic conditions by progressive establishment of new populations. 
However, some experts believe that it may be possible for these species 
to move to other aspects within their habitat in order to adapt to a 
changing climate (Service 2012c, entire). For example, Graham's 
beardtongue is typically observed on west or southwest-facing slopes 
(see Species Information, ``Habitat'' for Graham's beardtongue, above). 
White River beardtongue exhibits a similar characteristic, although 
this species is more evenly distributed on different slope aspects (see 
Species Information, ``Habitat'' for White River beardtongue, above). 
It may be possible for these species to gradually move to cooler and 
wetter slope aspects (for example, north-facing hillsides) within oil 
shale soils in response to a hotter drier climate (Service 2012c, 
entire), but only if these types of habitat are within reasonable seed-
dispersal distances and only if these habitats remain intact with 
increasing oil and gas development.
    In summary, climate change is affecting and will affect temperature 
and precipitation events in the future. We expect that Graham's and 
White River beardtongues, like other narrow endemics, may be negatively 
affected by climate change-related drought. Current data are not 
reliable enough at the local level for us to draw conclusions regarding 
the impacts of climate change threats to Graham's and White River 
beardtongues. It is likely that the impacts of climate change will be 
more severe if oil and gas development destroy and fragment the habitat 
both species will need for refuge from an increasingly dry, hot 
climate, thus decreasing both species' resiliency, redundancy, and 
representation (see XI. Cumulative Effects from All Factors, below).
X. Inadequacy of Existing Regulatory Mechanisms
Federal
    Within Colorado, the Raven Ridge Area of Critical Environmental 
Concern (ACEC) was established, in part, to protect listed and 
candidate species, including Graham's and White River beardtongues (BLM 
1986, p. 2, BLM 1997, p. 2-17). The Federal Land Policy and Management 
Act (FLPMA) (43 U.S.C. 1701 et seq.) directs BLM, as part of the land 
use planning process, to give priority to the designation and 
protection of ACECs. FLPMA defines ACECs as ``areas within the public 
lands where special management attention is required . . . to protect 
and prevent irreparable damage to important historic, cultural, or 
scenic values, fish and wildlife resources or other natural systems or 
processes, or to protect life and safety from natural hazards'' (Sec. 
103(a)). Designation as an ACEC recognizes an area as possessing 
relevant and important values that would be at risk without special 
management attention (BLM 2008b, p. 4-426).
    Following an evaluation of the relevance and importance of the 
values found in potential ACECs, the BLM determines whether special 
management is required to protect those values and, if so, to specify 
what management prescriptions would provide that special management 
(BLM 2008b, p. 4-426--4-436). To protect listed and candidate species 
including the beardtongues, the Raven Ridge ACEC restricts motorized 
travel to existing roads and trails and includes a no surface occupancy 
(NSO) stipulation for new oil and gas leases within the ACEC (BLM 1997, 
p. 2-19, 2-44). The NSO designation prohibits long-term use or 
occupancy of the land surface for fluid mineral exploration or 
development to protect special resource values (BLM 2008c, p. 38). 
However, NSO stipulations do not apply to valid existing rights (BLM 
1997, pp. 2-31), which account for 14 and 11 percent of the total known 
populations for Graham's and White River beardtongues, respectively. 
For example, an area that was leased for mineral development before the 
ACEC was established would not be subject to the NSO stipulation and 
could potentially develop well pads and associated infrastructure 
within an ACEC.
    Eighty-seven percent (33 of 38) of all known Graham's beardtongue 
plants in Colorado occur within the Raven Ridge ACEC. About 2 percent 
(28 of 1,187) of the known White River beardtongue plants in Colorado 
also occur within the Raven Ridge ACEC. We expect the NSO stipulation 
will continue to provide sufficient protection to the plants in the 
ACEC. Twenty-one percent of the Raven Ridge ACEC is currently leased, 
and the NSO stipulations are in effect for this entire area. An 
additional 30 percent of the Raven Ridge ACEC was proposed for leasing 
in 2013, but the lease sale is now deferred for further analysis (BLM 
2013, entire). To date, no wells have been drilled or approved within 
the Raven Ridge ACEC (Service 2013, p. 12). There are no ACECs 
established for either Graham's beardtongue or White River beardtongue 
in Utah.
    Both species are listed as BLM sensitive plants in Colorado and 
Utah, which affords them limited policy-level protection through the 
Special Status Species Management Policy Manual 6840, which 
forms the basis for special status species management on BLM lands (BLM 
2008a, entire). The BLM currently gives candidate species the same 
protection as listed species, and for both beardtongue species, 
conservation measures incorporated by the Vernal Field Office include a 
91-m (300-ft) setback from surface-disturbing activities (BLM 2008c, p. 
L-16).
    If these species were not candidates or listed under the Act, 
Graham's and White River beardtongues would likely remain BLM-sensitive 
plant species. The BLM currently requires 46 m (150 ft) between surface 
disturbance and BLM-sensitive plant species (Roe 2011, pers. comm.). If 
kept in place, these conservation measures will provide some level of 
protection to these species. However, we do not consider this distance 
sufficient to effectively prevent negative impacts associated with 
surface-disturbing activities or to protect unoccupied habitat to serve 
as a refuge for either species with climate change (see, I. Energy 
Exploration and Development for a discussion of fugitive dust travel 
distances). Additionally, the 46-m (150-ft) buffer for sensitive plant 
species is not official policy for the Vernal Field Office and could 
potentially change with new management or under specific project 
scenarios.
    In 2007, a voluntary 5-year conservation agreement for Graham's 
beardtongue was signed by the Service, the BLM, and the Utah Department 
of Natural Resources (DNR). The agreement intended to create a program 
of conservation measures to address potential threats to Graham's 
beardtongue at the Federal, State, and local levels. The agreement 
includes the following conservation measures:
     Identify all occupied habitat of Graham's beardtongue.
     Census all occurrences of the species.
     Identify at least six permanent population monitoring 
sites throughout the species' range and conduct

[[Page 47607]]

population monitoring studies for Graham's beardtongue in each of those 
sites.
     Maintain Federal ownership of all occupied habitat.
     Avoid or minimize impacts to the species and its habitat 
from permitted surface disturbances, subject to valid existing lease 
rights and other valid existing rights.
    Since the conservation agreement was signed, the BLM has funded 
surveys for both species, adding 4,000 new Graham's beardtongue points 
and 400 new White River beardtongue points to our files. In addition, a 
monitoring program on several populations of both species was initiated 
in 2004, and was funded partially with BLM money, through 2012.
    However, BLM will not be able to retain Federal ownership of all 
occupied habitat, as recommended in the conservation agreement. The 
Utah Recreational Land Exchange Act of 2009 (Public Law 111-53, signed 
August 19, 2009) directed the exchange of lands within Grand, San Juan, 
and Uintah Counties, Utah, between the BLM and SITLA. The Act directs 
the Secretary of the Interior to convey to the State of Utah all 
rights, title, and interests to the Federal lands identified on the 
associated Grand County and Uintah County maps. Several of the parcels 
that will be transferred to SITLA include 346 known individual Graham's 
beardtongue plants within populations 13 and 16. We expect that more 
plants occur in these parcels than have been counted to date, so actual 
losses are likely to be higher. SITLA has not expressed an interest in 
protecting Graham's beardtongue on lands they manage (see discussion 
under ``State'' below) so any Graham's beardtongue individuals on 
parcels transferred to the State will be unprotected from energy 
development. These new SITLA lands occur in areas of high potential 
energy development (see I. Energy Exploration and Development, above). 
Although the land exchange is not yet final, we expect it to move 
forward as planned.
    FLPMA requires the BLM to develop and revise land-use plans when 
appropriate (43 U.S.C. 1712(a)). The BLM developed a new resource 
management plan (RMP) for the Vernal Field Office to consolidate 
existing land-use plans and balance use and protection of resources 
(BLM 2008c, pp. 1-2). Through the Vernal Field Office RMP, the BLM 
commits to conserve and recover all special status species, including 
candidate species (BLM 2008c, p. 129). However, the RMP special status 
species goals and objectives do not legally ensure that all Federal 
actions avoid impacts to Graham's beardtongue or White River 
beardtongue. Conservation measures implemented by the BLM have not 
fully prevented impacts (for example, well pad development or road 
maintenance and construction in occupied habitat as discussed 
previously in I. Energy Exploration and Development, and V. Road 
Maintenance and Construction) to Graham's beardtongue or White River 
beardtongue. Therefore, we conclude that increased energy development 
in Graham's and White River beardtongue habitat will increase the 
direct loss of habitat and decrease the long-term ability to implement 
more effective conservation measures (see I. Energy Exploration and 
Development, above).
    During oil and gas development activities that have occurred to 
date, the BLM minimized some impacts to Graham's beardtongue and its 
habitat through incorporation of conservation measures through section 
7 consultation under the Act. Under the Act, Federal agencies are 
required to conference on species that are proposed for listing, 
including Graham's beardtongue, if their actions are likely to 
jeopardize the species. In practice, the BLM has conferenced on 
Graham's beardtongue for any proposed projects within its habitat. 
Conservation measures include moving well pad and pipeline locations to 
avoid direct impacts to the species. These measures minimize direct 
impacts to the species, particularly at the current low rates of 
development that have occurred in the habitat.
    At current minimal levels of energy development (at the time of 
this analysis, 45 wells in Graham's beardtongue analysis area and 13 
wells in White River beardtongue analysis area), we conclude that 
existing conservation measures, such as a 91-m (300-ft) setback are 
sufficient to protect these species. However, additional energy 
development is very likely to occur across the ranges of these two 
species at a high level. Existing conservation measures are not 
sufficient to protect these species from the increased indirect 
effects, such as habitat fragmentation and pollinator disturbance, that 
will result from more energy development.
State
    No State laws or regulations protect rare plant species in either 
Utah or Colorado. Approximately 15 and 11 percent of all known plants 
of Graham's and White River beardtongues, respectively, occur on State 
land. After the land exchange, about 16 percent of all known Graham's 
beardtongue plants will be located on State lands.
    The 2007 Graham's beardtongue conservation agreement was signed by 
the Utah DNR, the Service, and the BLM (see the section above, 
``Federal,'' for a more thorough description of the conservation 
agreement). However, the agreement was not signed by local-level 
officials with Uintah County, or by SITLA, which manages most of the 
State lands where Graham's beardtongue is found. To date, SITLA has not 
required project proponents to protect Graham's beardtongue, White 
River beardtongue, or other rare or listed plant species on SITLA-
managed lands in the Uinta Basin where oil and gas development 
(traditional or oil shale and tar sands) exists.
Local
    As stated above, approximately 26 and 27 percent of all known 
plants of Graham's and White River beardtongues, respectively, occur on 
private lands. We are not aware of any city or county ordinances or 
zoning that provide for protection or conservation of Graham's and 
White River beardtongues and their habitats.
Summary of All Regulatory Levels
    In summary, we find that existing conservation measures instituted 
by the BLM do not sufficiently address the identified threats to 
Graham's and White River beardtongues. Both species are afforded some 
protection on BLM lands as candidate and proposed species; however, the 
minimal protection provided to date would be reduced if we find that 
Graham's and White River beardtongues do not meet the definition of an 
endangered or threatened species. For example, if both species were 
removed from the candidate species list, the BLM would likely reduce 
the 91-m (300-ft) distance between disturbance and known plant 
locations to 46 m (150 feet), which we do not believe would 
sufficiently protect the plants or their pollinators. Additionally, as 
a species without listing status, the BLM would not conference with the 
Service on projects impacting Graham's beardtongue or White River 
beardtongue. At current low levels of energy development, a 91-m (300-
ft) setback is sufficient to protect these species from negative 
impacts, but at full field development (one wellpad every 40 acres) or 
complete removal of vegetation and top soil (as would occur with oil 
shale or tar sands development), a 91-m (300-ft) setback distance is 
not sufficient to protect against landscape-level habitat 
fragmentation, loss of pollinator habitat and population connectivity, 
increased dust, and invasive weeds.

[[Page 47608]]

    There are no existing regulations at the State or local levels to 
protect either species from the identified threat of energy 
development. Neither Graham's nor White River beardtongues has 
regulatory protection for approximately 41 and 38 percent, 
respectively, of the total number of known plants, where they occur on 
State or private lands. As such, the plants will receive no regulatory 
protection from the future threat of energy development (and this will 
increase by 1 percent for Graham's beardtongue after the land exchange 
takes place) on State or private lands.
    Because of these issues, existing regulatory mechanisms are 
inadequate to protect the species from the threats we anticipate in the 
future, specifically energy development.
XI. Cumulative Effects From All Factors
    The stressors discussed above pertain to the 5 listing factors 
described in the Act:
    A. The present or threatened destruction, modification, or 
curtailment of habitat or range (energy exploration and development, 
off-highway vehicle use, grazing, road maintenance and construction, 
wildfire, invasive weeds);
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes (unauthorized collection);
    C. Disease or predation (grazing and trampling);
    D. The inadequacy of existing regulatory mechanisms; and
    E. Other natural or manmade factors affecting the species' 
continued existence (climate change, small population size).
    The combination of many of the factors described above is likely to 
increase the vulnerability of these species.
    We conclude that the future development of oil shale (and to a 
lesser extent, tar sands) alone is a threat to both Graham's and White 
River beardtongues. The impacts of this development include a reduction 
in population numbers, increased fragmentation, and habitat loss, 
impacting as much as 82 and 94 percent of the total known populations 
of Graham's and White River beardtongues, respectively. If we include 
potential impacts from traditional oil and gas development, then 91 and 
100 percent of Graham's and White River beardtongues, respectively, 
will be impacted by all types of energy development.
    Both species will experience a reduction in total population sizes, 
and may lose entire populations from oil shale development. Smaller 
populations, as discussed above (see VIII. Small Population Size) are 
more prone to extinction, and these smaller populations will also 
experience more severe effects of other factors. For example, 
incremental increases in habitat alteration and fragmentation from 
increased energy development (including oil shale, tar sands, and 
traditional oil and gas) will increase weed invasion and fugitive dust, 
as well as increase the severity of impacts from other factors such as 
grazing, as grazers become more concentrated into undisturbed areas, 
and road maintenance, as more roads are constructed.
    Climate change is likely to augment the ability of invasive, 
nonnative species to out-compete native plant species and also reduce 
the ability of native plant species to recover in response to 
perturbations. Climate change may also change the effects of grazing 
events from native grazers to the extent that reproduction of either 
beardtongue species is hindered so that populations are no longer 
resilient. This underscores the need to protect not only the associated 
plant communities within Graham's and White River beardtongue habitat, 
but those immediately adjacent to beardtongue habitat (Service 2012c, 
entire).
    Without cohesive, landscape-level regulatory mechanisms in place to 
protect Graham's and White River beardtongues from development on 
public lands, as development increases, habitat fragmentation and 
negative effects associated with it are likely to increase, despite 
site-specific conservation measures to protect these species. In 
conclusion, we find that energy development alone, especially oil shale 
and tar sands development, is a threat to these species. Additionally, 
the synergistic effects of increased energy development, livestock 
grazing, invasive weeds, small population sizes, and climate change are 
threats to these species.

Proposed Determination

Standard Under the Act

    Section 4 of the Act, and its implementing regulations at 50 CFR 
part 424, set forth the procedures for adding species to the Federal 
Lists of Endangered and Threatened Wildlife and Plants. Under section 
4(b)(1)(a), the Secretary is to make endangered or threatened 
determinations required by section 4(a)(1) solely on the basis of the 
best scientific and commercial data available to her after conducting a 
review of the status of the species and after taking into account 
conservation efforts by States or foreign nations. The standards for 
determining whether a species is endangered or threatened are provided 
in section 3 of the Act. An endangered species is any species that is 
``in danger of extinction throughout all or a significant portion of 
its range.'' A threatened species is any species that is ``likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range.'' Per section 4(a)(1) of the 
Act, in reviewing the status of the species to determine if it meets 
the definition of endangered or threatened, we determine whether any 
species is an endangered species or a threatened species because of any 
of the following five factors: (A) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; and (E) other natural or manmade 
factors affecting its continued existence.

Proposed Listing Status Determination

    After a review of the best available scientific information as it 
relates to the status of the species and the five listing factors 
described above, we have determined that Graham's and White River 
beardtongues meet the definition of threatened species (i.e., are 
likely to become endangered throughout all or a significant portion of 
their ranges within the foreseeable future).
    Graham's and White River beardtongues are currently stable species 
with relatively restricted ranges limited to a specific soil type. The 
existing numbers of individuals and populations are sufficient for 
these species to remain viable into the future. Population viability 
analyses show that monitored populations of both species are, for the 
most part, currently stable. However, we conclude that habitat loss and 
fragmentation from energy development, particularly oil shale and tar 
sands, are a future threat to Graham's and White River beardtongues 
(Factor A). Oil shale and tar sands overlap most of the known habitat 
of these species. As oil shale and tar sands projects proceed across 
the ranges of both species, up to 82 and 94 percent of the total known 
populations of Graham's and White River beardtongues could be impacted. 
Two proposed oil shale projects on State and private lands are likely 
to result in the direct loss of 21 and 26 percent of the total known 
populations of Graham's and White River beardtongues, and this 
development is likely to begin within the next few years. These 
projects will

[[Page 47609]]

increase habitat fragmentation and isolate populations of both species. 
The combined impacts of traditional oil and gas and oil shale and tar 
sands development is likely to be high because approximately 91 and 100 
percent of the total known populations for Graham's and White River 
beardtongues, respectively, overlap with all planned or potential 
energy development. In addition, there are no existing regulatory 
mechanisms that protect these species on State or private lands (Factor 
D), and the existing conservation measures on public lands will not 
afford sufficient protection from the indirect impacts of energy 
development. Cumulative impacts, such as increased development 
resulting in smaller, more fragmented populations that are more prone 
to extinction and increased invasion by nonnative weeds, are likely to 
be exacerbated by climate change (Factor E). As a result of these 
future threats, the viability of these species is likely to be severely 
diminished.
    The Act defines an endangered species as any species that is ``in 
danger of extinction throughout all or a significant portion of its 
range'' and a threatened species as any species ``that is likely to 
become endangered throughout all or a significant portion of its range 
within the foreseeable future.'' We have carefully assessed the best 
scientific and commercial information available regarding the present 
and future threats to these species, and have determined that Graham's 
and White River beardtongues meet the definition of threatened species 
under the Act. Substantial threats are not currently occurring. 
However, threats are likely to occur in the future, within the next 20 
years, at a high intensity and across both species' entire ranges. 
Because these threats place these species in danger of extinction at 
some point in the future and they are not in immediate danger of 
extinction, we find these species meet the definition of threatened 
species, not endangered species. Therefore, on the basis of the best 
available scientific and commercial information, we propose listing 
Graham's and White River beardtongues as threatened species in 
accordance with sections 3(20) and 4(a)(1) of the Act.

Significant Portion of the Range

    In determining whether a species is threatened or endangered in a 
significant portion of its range, we first identify any portions of the 
range of the species that warrant further consideration. The range of a 
species can theoretically be divided into portions an infinite number 
of ways. However, there is no purpose to analyzing portions of the 
range that are not reasonably likely to be both (1) significant and (2) 
threatened or endangered. To identify only those portions that warrant 
further consideration, we determine whether there is substantial 
information indicating that: (1) The portions may be significant, and 
(2) the species may be in danger of extinction there or likely to 
become so within the foreseeable future. In practice, a key part of 
this analysis is whether the threats are geographically concentrated in 
some way. If the threats to the species are essentially uniform 
throughout its range, no portion is likely to warrant further 
consideration. Moreover, if any concentration of threats applies only 
to portions of the species' range that are not significant, such 
portions will not warrant further consideration.
    If we identify portions that warrant further consideration, we then 
determine whether the species is threatened or endangered in these 
portions of its range. Depending on the biology of the species, its 
range, and the threats it faces, the Service may address either the 
significance question or the status question first. Thus, if the 
Service considers significance first and determines that a portion of 
the range is not significant, the Service need not determine whether 
the species is threatened or endangered there. Likewise, if the Service 
considers status first and determines that the species is not 
threatened or endangered in a portion of its range, the Service need 
not determine if that portion is significant. However, if the Service 
determines that both a portion of the range of a species is significant 
and the species is threatened or endangered there, the Service will 
specify that portion of the range as threatened or endangered under 
section 4(c)(1) of the Act.
    We evaluated the current range of Graham's and White River 
beardtongues to determine if there is any apparent geographic 
concentration of potential threats for either species. Both species are 
highly restricted in their ranges and the threats occur throughout 
their ranges. Having determined that both species are threatened 
throughout their entire ranges, we must next consider whether there are 
any significant portions of the ranges where the Graham's and White 
River beardtongues are in danger of extinction or likely to become 
endangered in the foreseeable future.
    We found no portion of the Graham's and White River beardtongues' 
range where potential threats are significantly concentrated or 
substantially greater than in other portions of their range. Therefore, 
we find that factors affecting these species are essentially uniform 
throughout their range, indicating no portion of the range of either 
species warrants further consideration of possible endangered or 
threatened status under the Act. Therefore, we find there is no 
significant portion of the Graham's and White River beardtongues' range 
that may warrant a different status.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and requires that recovery actions be carried out for all listed 
species. The protection required by Federal agencies and the 
prohibitions against certain activities are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act requires the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed and preparation of a draft and final 
recovery plan. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan identifies site-
specific management actions that set a trigger for review of the five 
factors that control whether a species remains endangered or may be 
downlisted or delisted, and methods for monitoring recovery

[[Page 47610]]

progress. Recovery plans also establish a framework for agencies to 
coordinate their recovery efforts and provide estimates of the cost of 
implementing recovery tasks. Recovery teams (comprised of species 
experts, Federal and State agencies, nongovernment organizations, and 
stakeholders) are often established to develop recovery plans. When 
completed, the recovery outline, draft recovery plan, and the final 
recovery plan will be available on our Web site (http://www.fws.gov/endangered), or from our U.S. Fish and Wildlife Service, Utah 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribal, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    If these species are listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the States of Utah and Colorado would 
be eligible for Federal funds to implement management actions that 
promote the protection or recovery of Graham's and White River 
beardtongues. Information on our grant programs that are available to 
aid species recovery can be found at: http://www.fws.gov/grants.
    Although Graham's and White River beardtongues are only proposed 
for listing under the Act at this time, please let us know if you are 
interested in participating in recovery efforts for this species. 
Additionally, we invite you to submit any new information on this 
species whenever it becomes available and any information you may have 
for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of the 
species or destroy or adversely modify its critical habitat. If a 
Federal action is likely to adversely affect a listed species or its 
critical habitat, the responsible Federal agency must enter into formal 
consultation with the Service.
    Federal agency actions within the species habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include: Oil and gas leasing, exploration, and permitting; 
oil shale research; authorization of transmission towers, pipelines, 
and power lines; reclamation actions; travel management; and 
authorization of road maintenance by the BLM. Other types of actions 
that may require consultation include construction and management of 
gas pipeline and power line rights-of-way by the Federal Energy 
Regulatory Commission or provision of Federal funds to State and 
private entities through Federal programs, such as the Service's 
Landowner Incentive Program, State Wildlife Grant Program, and Federal 
Aid in Wildlife Restoration program.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered and 
threatened plants. All prohibitions of section 9(a)(2) of the Act, 
implemented by 50 CFR 17.61 and 50 CFR 17.71, apply. These 
prohibitions, in part, make it illegal for any person subject to the 
jurisdiction of the United States to import or export, transport in 
interstate or foreign commerce in the course of a commercial activity, 
sell or offer for sale in interstate or foreign commerce, or remove and 
reduce the species to possession from areas under Federal jurisdiction. 
In addition, for plants listed as endangered, the Act prohibits the 
malicious damage or destruction on areas under Federal jurisdiction and 
the removal, cutting, digging up, damaging, or destroying of such 
plants in knowing violation of any State law or regulation, including 
State criminal trespass law. Certain exceptions to the prohibitions 
apply to agents of the Service and State conservation agencies. Utah 
does not have any law protecting listed species, and Colorado's 
Endangered Species law does not currently cover plants. Therefore, 
listing under the Act will offer additional protection to these 
species.
    The Act, 50 CFR 17.62, and 50 CFR 17.72 also provide for the 
issuance of permits to carry out otherwise prohibited activities 
involving endangered and threatened plants under certain circumstances. 
Such permits are available for scientific purposes and to enhance the 
propagation or survival of the species. We anticipate that the only 
permits that would be sought or issued for Graham's beardtongue or 
White River beardtongue would be in association with research and 
recovery efforts. Requests for copies of the regulations regarding 
listed species and inquiries about prohibitions and permits may be 
addressed to U.S. Fish and Wildlife Service, Ecological Services, P.O. 
Box 25486--DFC, Denver, CO 80225-0486 (telephone 303-236-4256; 
facsimile 303-236-0027).

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our listing determinations for these species are based on 
scientifically sound data, assumptions, and analyses. We will invite 
these peer reviewers to comment during the public comment period.
    We will consider all comments and information we receive during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests must be received within 45 days after the date 
of publication of this proposal in the Federal Register. Such requests 
must be sent to the address shown in the FOR FURTHER INFORMATION 
CONTACT section. We will schedule public hearing on this proposal, if 
any are requested, and announce the dates, times, and places of those 
hearings, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before the 
hearing.
    Persons needing reasonable accommodations to attend and

[[Page 47611]]

participate in a public hearing should contact the Utah Ecological 
Service Field Office at (801) 975-3330 as soon as possible. To allow 
sufficient time to process requests, please call no later than one week 
before the hearing date. Information regarding this proposed rule is 
available in alternative formats upon request.

Required Determinations

Clarity of the Rule

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

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

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969, need not be prepared in connection 
with listing a species as an endangered or threatened species under the 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244).

References Cited

    A complete list of all references cited in this rule is available 
on the Internet at http://www.regulations.gov at Docket No. FWS-R6-ES-
2013-0081 or upon request from Larry Crist, Field Supervisor, U.S. Fish 
and Wildlife Service, Utah Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT section).

Authors

    The primary authors of this proposed rule are the staff members of 
the U.S. Fish and Wildlife Service, Utah Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless 
otherwise noted.

0
2. In Sec.  17.12(h), add entries for ``Penstemon grahamii'' and 
``Penstemon scariosus var. albifluvis'' in alphabetical order under 
FLOWERING PLANTS to 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
 
                                                                      * * * * * * *
Penstemon grahamii...............  Graham's beardtongue  U.S.A. (UT, CO)....  Plantaginaceae.....  T               ...........           NA           NA
 
                                                                      * * * * * * *
Penstemon scariosus var.           White River           U.S.A. (UT, CO)....  Plantaginaceae.....  T               ...........           NA           NA
 albifluvis.                        beardtongue.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

    Dated: July 15, 2013.
Rowan W. Gould,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2013-18334 Filed 8-5-13; 8:45 am]
BILLING CODE 4310-55-P