[Federal Register Volume 79, Number 29 (Wednesday, February 12, 2014)]
[Proposed Rules]
[Pages 8416-8428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03133]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R1-ES-2013-0117; MO 92210-0-0008 B2]
RIN 1018-BA27


Endangered and Threatened Wildlife and Plants; Threatened Status 
for Lepidium papilliferum (Slickspot Peppergrass) Throughout Its Range

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Reconsideration of final rule and request for comments.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), amend and 
update, and provide and request further information in regard to, our 
October 8, 2009, final rule listing Lepidium papilliferum (slickspot 
peppergrass) as a threatened species throughout its range under the 
Endangered Species Act of 1973 (ESA or Act). We are addressing the 
Idaho District Court's remand of our rule because the Court asked us to

[[Page 8417]]

reconsider the definition of the ``foreseeable future'' in regard to 
this particular species. We announce the opening of a public comment 
period seeking input on our interpretation of the foreseeable future as 
it pertains specifically to L. papilliferum. We will also consider any 
new information regarding population status, trends, or threats that 
has become available since our last review of the status of the species 
in 2009.

DATES: We will consider comments received or postmarked on or before 
March 14, 2014. Please note that comments submitted electronically 
using the Federal eRulemaking Portal (see ADDRESSES) must be received 
by 11:59 p.m. Eastern Time on the closing date. Any comments that we 
receive after the closing date may not be considered in the final 
decision.

ADDRESSES: Comment submission: You may submit written comments by one 
of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for FWS-R1-ES-2013-0117, which is the 
docket number for this rulemaking. You may submit a comment by clicking 
on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R1-ES-2013-0117; 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 comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Acting State Supervisor, U.S. Fish and 
Wildlife Service, Idaho Fish and Wildlife Office, 1387 S. Vinnell Way, 
Room 368, Boise, ID 83709; telephone 208-378-5243; facsimile 208-378-
5262. If you use a telecommunications device for the deaf (TDD), call 
the Federal Information Relay Service (FIRS) at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

Purpose of This Document

    We are responding to the U.S. District Court for the District of 
Idaho's August 8, 2012, Memorandum Decision and Order vacating our 
October 8, 2009, final rule listing Lepidium papilliferum (slickspot 
peppergrass) as a threatened species (74 FR 52014) (2009 final listing 
rule) and remand of the rule to the Service for further consideration 
consistent with the Court's decision. 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.'' The 
Act does not define the term ``foreseeable future.'' With respect to 
the Service's finding of threatened status for L. papilliferum, the 
Court was supportive, stating that ``. . . the Service's finding 
underlying the above conclusion [that L. papilliferum is likely to 
become an endangered species within the foreseeable future] are (sic) 
supported by the administrative record and entitled to deference.'' 
Otter v. Salazar, Case No. 1:11-cv-358-CWD, at 50 (D. Idaho, Aug. 8, 
2012) (Otter v. Salazar). However, the Court took issue with the 
Service's application of the concept of the ``foreseeable future'' in 
the 2009 final listing rule. Although it found ``no problem with the 
agency's science,'' the Court stated that ``without a viable definition 
of foreseeable future, there can be no listing under the ESA.'' Otter 
v. Salazar, at 55. Based on this conclusion, the Court vacated the 2009 
listing determination and remanded it to the Secretary for further 
consideration consistent with the Court's decision.
    We are proposing to reinstate threatened status of Lepidium 
papilliferum under the Act with an amended definition of the 
foreseeable future, consistent with the Court's opinion and applied 
specifically to this species. We will also evaluate any new scientific 
information that may have become available since our 2009 final listing 
rule. This will ensure that our present determination remains based on 
the best scientific and commercial data available. We are seeking 
public comments on our amended definition of foreseeable future and to 
assist us in our evaluation of any new scientific information 
pertaining to this species.

The Basis for Our Action

    Section 4 of the Act and its implementing regulations (50 CFR 424) 
set forth the procedures for adding species to the Federal Lists of 
Endangered and Threatened Wildlife and Plants. A species may be 
determined to be an endangered or threatened species due to one or more 
of the five factors described in section 4(a)(1) of the Act: (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. Listing actions may 
be warranted based on any of the above threat factors, singly or in 
combination. Each of the factors relevant to Lepidium papilliferum is 
discussed below and in our 2009 final listing rule.

Public Comments

    We will base any final action on the best scientific and commercial 
data available. Therefore, we are seeking comments from the public, 
other concerned governmental agencies, Native American tribes, the 
scientific community, industry, or any other interested party 
concerning the reinstatement of threatened status for Lepidium 
papilliferum. We particularly seek comments concerning:
    (1) Our interpretation of the term ``foreseeable future'' and its 
application to our evaluation of the status of Lepidium papilliferum;
    (2) Our evaluation of new scientific information concerning the 
range, distribution, population size and trends, and threats to the 
species that has become available since publication of the 2009 final 
listing rule;
    (3) Our choice of the threshold of 80 to 90 percent loss of 
remaining unburned habitat as the point at which the species will be in 
danger of extinction (see discussion below under Factors Affecting the 
Species for details on our rationale supporting our conclusion);
    (4) Any additional scientific information concerning the range, 
distribution, population size and trends, or threats to the species 
that has become available since publication of the 2009 final listing 
rule that we have not already presented and considered here; and
    (5) Current or planned activities in the subject area that were not 
analyzed in the 2009 final listing rule and their possible effect on 
this species.
    We will consider all comments and information received during the 
comment period on this rulemaking during our preparation of a final 
determination. Comments previously submitted on the proposed listing of 
Lepidium papilliferum need not be resubmitted; they have already been 
incorporated into the public record and will be fully considered in the 
final decision.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information,

[[Page 8418]]

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 by one of the methods 
listed in ADDRESSES. We request that you send comments only by the 
methods described in ADDRESSES.
    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 this 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.
    In making a final decision on this matter, we will take into 
consideration the comments and any additional information we receive. 
Comments and materials received, as well as some of the supporting 
documentation used in the preparation of a final decision, will be 
available for public inspection on http://www.regulations.gov. All 
information we use in making our decision is available by appointment, 
during normal business hours, at the U.S. Fish and Wildlife Service, 
Idaho Fish and Wildlife Office, 1387 S. Vinnell Way, Room 368, Boise, 
ID 83709; telephone 208-378-5243; facsimile 208-378-5262 (see FOR 
FURTHER INFORMATION CONTACT).

Previous Federal Actions

    On July 15, 2002, we proposed to list Lepidium papilliferum as an 
endangered species (67 FR 46441). On January 12, 2007, we published a 
document in the Federal Register withdrawing the proposed rule (72 FR 
1622), based on a determination at that time that listing was not 
warranted (for a description of Federal actions concerning L. 
papilliferum between the 2002 proposal to list and the 2007 withdrawal, 
please refer to the 2007 withdrawal document). On April 6, 2007, 
Western Watersheds Project filed a lawsuit challenging our decision to 
withdraw the proposed rule to list L. papilliferum. On June 4, 2008, 
the U.S. District Court for the District of Idaho (Court) reversed the 
decision to withdraw the proposed rule, with directions that the case 
be remanded to the Service for further consideration consistent with 
the Court's opinion (Western Watersheds Project v. Kempthorne, Case No. 
CV 07-161-E-MHW (D. Idaho)).
    After issuance of the Court's remand order, we published a public 
notification of the reinstatement of our July 15, 2002, proposed rule 
to list Lepidium papilliferum as an endangered species and announced 
the reopening of a public comment period on September 19, 2008 (73 FR 
54345). To ensure that our review of the species' status was based on 
complete information, we announced another reopening of the comment 
period on March 17, 2009 (74 FR 11342). On October 8, 2009, we 
published a final rule (74 FR 52014) listing L. papilliferum as a 
threatened species throughout its range.
    On November 16, 2009, Idaho Governor C. L. ``Butch'' Otter, the 
Idaho Office of Species Conservation, Theodore Hoffman, Scott 
Nicholson, and L.G. Davison & Sons, Inc., filed a complaint in the U.S. 
District Court for the District of Columbia challenging the 2009 final 
listing rule under the Administrative Procedure Act and the Endangered 
Species Act. Subsequently, the issue was transferred to the U.S. 
District Court for the District Court of Idaho (Court), and the parties 
involved consented to proceed before a Magistrate Judge. On August 8, 
2012, the Court vacated the final rule listing Lepidium papilliferum as 
a threatened species under the Act, with directions that the case be 
remanded to the Service for further consideration consistent with the 
Court's opinion. Otter v. Salazar, Case No. 1:11-cv-358-CWD (D. Idaho). 
This document constitutes our reconsideration of the issue remanded by 
the Court.

Background and New Information

    A complete description of Lepidium papilliferum, including a 
discussion of its life history, ecology, habitat requirements and 
monitoring of extant populations, can be found in the October 8, 2009, 
final rule (74 FR 52014). However, to ensure that we are considering 
the best scientific and commercial data available in our final 
decision, here we present new scientific information that has become 
available to us since our 2009 determination of threatened status, and 
evaluate that new information in light of our previous conclusions 
regarding the status of the species.

New Information Related to the Proposed Listing of Lepidium 
papilliferum

    We are evaluating information presented in the 2009 final listing 
rule, as well as new information, regarding population status, trends, 
or threats that has become available since 2009, including current 
element occurrence (EO) data provided to us by the Idaho Fish and 
Wildlife Information System (IFWIS) database (formerly the Idaho 
Natural Heritage Program database), updated fire history data, the new 
rangewide Habitat Integrity and Population (HIP) monitoring data, 
information on current developments being proposed within the range of 
L. papilliferum, and the most current data on seed predation by Owyhee 
harvester ants (Pogonomyrmex salinus), as described in the Factors 
Affecting the Species section, below.
    Relatively limited new data regarding population abundance or 
trends has become available since our 2009 final listing rule. In 2011 
and 2012, the total number of Lepidium papilliferum plants counted was 
the lowest since 2005, when complete counts for this species were 
initiated, with 16,462 plants in 2011 and 9,202 plants in 2012 (Kinter 
2012, in litt.). Previously, the lowest total number of plants counted 
occurred in 2006, with 17,543 plants, and the highest count was in 
2010, with 58,921 plants (IDFG 2012, p. 5). Meyer et al. (2005, p. 21) 
suggest that L. papilliferum relies on years with extremely favorable 
climactic elements to resupply the seed bank (i.e., high bloom years 
with good weather), and during unfavorable years, it is dependent upon 
a persistent seed bank to maintain the population.
    In 2009, there were 80 extant Lepidium papilliferum EOs documented 
according to IFWIS data. Survey efforts over the past few years have 
located additional L. papilliferum occupied sites. According to IFWIS 
data, existing EOs have been expanded (and in some cases merged with 
other EOs to meet the definition of an EO, by grouping occupied 
slickspots that occur within 1 kilometer (km) (0.6 miles (mi)) of each 
other), and eight new EOs have been located. According to the most 
recent IFWIS data, there are now 87 extant L. papilliferum EOs 
(although it would seem there should be 88, the apparent discrepancy in 
numbers is due to the intervening merging and deleting of EOs between 
2009 and the present, as documented in the record). The discovery of 
some new occupied sites is not unexpected given not all potential L. 
papilliferum habitats in southwest Idaho have been surveyed. While the

[[Page 8419]]

discovery of these new sites is encouraging, they are located near or 
in the vicinity of existing EOs, and therefore do not expand the known 
range of the species; they are all subject to the same threats 
affecting the species, and their associated ranks indicate they are not 
high-quality EOs. The existing EOs have not been re-ranked since 2005; 
however, the ranks given to the new EOs include one BC, one BD, three 
C, two CD, and one D (IFWIS data from January 2013). See the Monitoring 
of Lepidium papilliferum Populations section in the 2009 final listing 
rule for a more detailed discussion of EOs.
    As discussed below in the section Factors Affecting the Species, 
the new information generally supports our 2009 conclusions on the 
present distribution of Lepidium papilliferum, its status and 
population trends, and how the various threat factors are affecting the 
species.

Foreseeable Future

    As indicated earlier, the Act defines a ``threatened species'' as 
any species (or subspecies or, for vertebrates, distinct population 
segments) that is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range. The Act does not define the term ``foreseeable future.'' In a 
general sense, the foreseeable future is the period of time over which 
events can reasonably be anticipated; in the context of the definition 
of ``threatened species,'' the Service interprets the foreseeable 
future as the extent of time over which the Secretary can reasonably 
rely on predictions about the future in making determinations about the 
future conservation status of the species. It is important to note that 
references to ``reliable predictions'' are not meant to refer to 
reliability in a statistical sense of confidence or significance; 
rather the words ``rely'' and ``reliable'' are intended to be used 
according to their common, non-technical meanings in ordinary usage. In 
other words, we consider a prediction to be reliable if it is 
reasonable to depend upon it in making decisions, and if that 
prediction does not extend past the support of scientific data or 
reason so as to venture into the realm of speculation.
    In considering threats to the species and whether they rise to the 
level such that listing the species as a threatened or endangered 
species is warranted, we assess factors such as the imminence of the 
threat (is it currently affecting the species or, if not, when do we 
expect the effect from the threat to commence, and whether it is 
reasonable to expect the threat to continue into the future), the scope 
or extent of the threat, the severity of the threat, and the 
synergistic effects of all threats combined. If we determine that the 
species is not currently in danger of extinction, then we must 
determine whether, based upon the nature of the threats, it is 
reasonable to anticipate that the species may become in danger of 
extinction within the foreseeable future. As noted in the 2009 
Department of the Interior Solicitor's opinion on foreseeable future, 
``in some cases, quantifying the foreseeable future in terms of years 
may add rigor and transparency to the Secretary's analysis if such 
information is available. Such definitive quantification, however, is 
rarely possible and not required for a foreseeable future analysis'' 
(M-37021, January 16, 2009; p. 9).
    In some specific cases where extensive data were available to allow 
for the modeling of extinction probability over various time periods 
(e.g., Greater Sage-grouse (75 FR 13910; March 23, 2010), the Service 
has provided quantitative estimates of what may be considered to 
constitute the foreseeable future. We do not have such data available 
for Lepidium papilliferum. Therefore, our analysis of the foreseeable 
future for the purposes of assessing the status of L. papilliferum must 
rely on the foreseeability of the relevant threats to the species over 
time, as described by the Solicitor's opinion (M-37021, January 16, 
2009; p. 8). The foreseeable future extends only so far as the 
Secretary can explain reliance on the data to formulate a reliable 
prediction, based on the extent or nature of the data currently 
available, and to extrapolate any trend beyond that point would 
constitute speculation.
    In earlier evaluations of the status of Lepidium papilliferum, the 
Service assembled panels of species and ecosystem experts to assist in 
our review through a structured decision-making process. As part of 
those evaluations, to help inform the decisions to be made by the 
Service managers, experts were asked to provide their best estimate of 
a timeframe for extinction of L. papilliferum, and were allowed to 
distribute points between various predetermined time categories, or to 
assign an extinction probability of low, medium, or high between time 
categories (e.g., 1 to 20 years, 21 to 40 years, 41 to 60 years, 61 to 
80 years, 81 to 100 years, 101 to 200 years, and 200 years and beyond). 
We note that this type of exercise was not intended to provide a 
precise quantitative estimate of the foreseeable future, nor was it 
meant to provide the definitive answer as to whether L. papilliferum is 
likely to become an endangered species within the foreseeable future. 
Rather, this type of exercise is used to help inform Service decision-
makers, and ultimately the Secretary, as to whether there is broad 
agreement amongst the experts as to extinction probability within a 
certain timeframe.
    In fact, the species experts expressed widely divergent opinions on 
extinction probabilities over various timeframes. As an example, in 
2006, the estimated timeframes for extinction from seven different 
panel members fell into every time category presented ranging from 21 
to 40 years up to 101 to 200 years. Because the species experts' 
divergent predictions were based on ``reasonable, best educated 
guesses,'' we did not consider the range of timeframes to represent a 
prediction that can be reasonably relied upon to make a listing 
determination. As noted in the Solicitor's opinion, ``the mere fact 
that someone has made a prediction concerning the future does not mean 
that the thing predicted is foreseeable for the purpose of making a 
listing determination under section 4 of the ESA'' (M-37021, January 
16, 2009; p. 10).
    In our 2009 final listing rule, we did not present species experts 
with predetermined potential timeframes within which to estimate 
extinction probability for the species. Rather, we asked peer reviewers 
to provide us with their estimated projection of a time period for 
reliably predicting threat effects or extinction risk for the species. 
In response, most peer reviewers declined, stating that such future 
projections were likely speculative. One peer reviewer suggested that 
given current trends in habitat loss and degradation, L. papilliferum 
``is likely at a tipping point in terms of its prospect for survival,'' 
and doubted that the species would persist in sustainable numbers 
beyond the next 50 to 75 years (74 FR 52055).
    As suggested in the Solicitor's opinion, for the purposes of the 
present analysis, we are relying on an evaluation of the foreseeability 
of threats and the foreseeability of the effect of the threats on the 
species, extending this time period out only so far as we can rely on 
the data to formulate reliable predictions about the status of the 
species, and not extending so far as to venture into the realm of 
speculation. Therefore, in the case of Lepidium papilliferum, we 
conclude that the foreseeable future is that period of time within 
which we can reliably predict whether or not Lepidium papilliferum is 
likely to become an endangered species as a result of the effects of 
wildfire, invasive nonnative

[[Page 8420]]

plants, and other threats to the species. As explained below, with 
respect to the principal threat factors, the foreseeable future for 
Lepidium papilliferum is at least 50 years.

Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR 424) 
set forth the procedures for adding species to the Federal Lists of 
Endangered and Threatened Wildlife and Plants. A species may be 
determined to be an endangered or threatened species due to one or more 
of the five factors described in section 4(a)(1) of the Act: (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. Listing actions may 
be warranted based on any of the above threat factors, singly or in 
combination.
    A detailed discussion and analysis of each of the threat factors 
for Lepidium papilliferum can be found in the final listing rule. For 
the purpose of this document, we are limiting our discussion of 
foreseeable future to the threats we consider significant in terms of 
contributing to the present or threatened destruction, modification, or 
curtailment of L. papilliferum's habitat or range. These include the 
two primary threat factors: altered wildfire regime (increasing 
frequency, size, and duration of wildfires), and invasive, nonnative 
plant species (e.g., Bromus tectorum (cheatgrass)); as well as 
contributing threat factors of planned or proposed development, habitat 
fragmentation and isolation, and the emerging threat from seed 
predation by Owyhee harvester ants (Pogonomyrmex salinus). Here we 
present a brief summary of each of the primary threats to L. 
papilliferum for the purposes of considering new information received 
since 2009 and of analyzing these threats in the context of the 
foreseeable future, in order to reconsider whether L. papilliferum 
meets the definition of a threatened species.
    In considering potential threatened species status for Lepidium 
papilliferum, it is useful to first describe what endangered species 
status (in danger of extinction throughout all or a significant portion 
of its range) for L. papilliferum would be. Lepidium papilliferum will 
be in danger of extinction (an endangered species) when the anticipated 
and continued synergistic effects of increased wildfire, invasive 
nonnative plants, development, and other known threats affect the 
remaining extant L. papilliferum habitats at a level where the species 
would persist only in a small number of isolated EOs, most likely with 
small populations and fragmented from other extant populations. 
Wildfire usually results in a mosaic of burned and unburned areas, and 
while some EOs may persist for a time in unburned habitat ``islands'' 
within burned areas, the resulting habitat fragmentation will cause any 
such EOs to be subject to a high degree of vulnerability, such that 
they may not have long-term viability. For example, wildfire often 
leads to a type conversion from native sagebrush-steppe to annual 
grassland, in which the habitat goes through successional changes 
resulting in grasslands dominated by invasive nonnative grasses, rather 
than the slickspot habitat needed by L. papilliferum. Therefore, 
although a few individuals of the species may continue to be found in 
burned areas, those individuals would be subject to the full impact of 
the threats acting on the species, and thus be highly vulnerable to 
extirpation, as detailed in the Summary of Factors Affecting the 
Species, below. In order to estimate when this might occur, we chose a 
threshold of 80 to 90 percent loss of or damage to the currently 
remaining unburned habitat (we are seeking public comment on the 
appropriateness of this choice of threshold). Should this loss of 80 to 
90 percent of current habitat happen, we believe that the remaining 10 
to 20 percent of its present habitat would be so highly fragmented that 
it would detrimentally affect successful insect pollination and genetic 
exchange, leading to a reduction in genetic fitness and genetic 
diversity, and a reduced ability to adapt to a changing environment. 
There would be little probability of recolonization of formerly 
occupied sites at this point, and remaining small, isolated populations 
would be highly vulnerable to local extirpation from a variety of 
threats. In addition, smaller, more isolated EOs could also exacerbate 
the threat of seed predation by Owyhee harvester ants, as small, 
isolated populations deprived of recruitment through their seed bank 
due to seed predation would be highly vulnerable to relatively rapid 
extirpation. All of these effects are further magnified by the 
consideration that L. papilliferum is a relatively local endemic, and 
presently persists in specialized microhabitats that have already been 
greatly reduced in extent (more than 50 percent of known L. 
papilliferum EOs have already been affected by wildfire). Therefore, if 
L. papilliferum should reach this point at which a further 80 to 90 
percent of its present remaining habitat is severely impacted by the 
effects of wildfire, invasive nonnative plants, and other threats, we 
predict it would then be in danger of extinction.
    We have analyzed and assessed known threats impacting Lepidium 
papilliferum, and used the best available information to carefully 
consider what effects these known threats will have on this species in 
the future, and over what timeframe, in order to determine what 
constitutes the foreseeable future for each of these known threats. In 
considering the foreseeable future as it relates to these threats, we 
considered information presented in the 2009 final listing rule, and 
information we have obtained since the publication of that rule, 
including: (1) The historical data to identify any relevant existing 
trends that might allow for reliable prediction of the future; (2) any 
information that suggests these threats may be alleviated in the near 
term; and (3) how far into the future we can reliably predict that 
these threats will continue to affect the status of the species, 
recognizing that our ability to make reliable predictions into the 
future is limited by the quantity and quality of available data. Below, 
we provide a summary of our analysis of each known threat, and discuss 
the information regarding the timing of these threats on which we base 
our conclusions regarding the application of the foreseeable future.

Altered Wildfire Regime

    The current altered wildfire regime and invasive, nonnative plant 
species were cited in the final listing rule as the primary cause for 
the decline of Lepidium papilliferum. The invasion of nonnative plant 
species, particularly annual grasses such as Bromus tectorum and 
Taeniatherum caput-medusae (medusahead), has contributed to increasing 
the amount and continuity of fine fuels across the landscape, and as a 
result, the wildfire frequency interval has been shortened from between 
60 to 110 years historically to less than 5 years in many areas of the 
sagebrush-steppe ecosystem at present (Wright and Bailey 1982, p. 158; 
Billings 1990, pp. 307-308; Whisenant 1990, p. 4; USGS 1999, in litt., 
pp. 1-9; West and Young 2000, p. 262). These wildfires tend to be 
larger and burn more uniformly than those that occurred historically, 
resulting in fewer patches of unburned vegetation, which can affect the 
post-fire recovery of native sagebrush-steppe

[[Page 8421]]

vegetation (Whisenant 1990, p. 4). The result of this altered wildfire 
regime has been the conversion of vast areas of the former sagebrush-
steppe ecosystem to nonnative annual grasslands (USGS 1999, in litt., 
pp. 1-9). Frequent wildfires can also promote soil erosion and 
sedimentation (Bunting et al. 2003, p. 82) in arid environments such as 
the sagebrush-steppe ecosystem. Increased sedimentation can result in a 
silt layer that is too thick for optimal L. papilliferum germination 
(Meyer and Allen 2005, pp. 6-7). Wildfire also damages biological soil 
crusts, which are important to the sagebrush-steppe ecosystem and 
slickspots where L. papilliferum occur, because the soil crusts 
stabilize and protect soil surfaces from wind and water erosion, retain 
soil moisture, discourage annual weed growth, and fix atmospheric 
nitrogen (Eldridge and Greene 1994 as cited in Belnap et al. 2001, p. 
4; Johnston 1997, pp. 8-10; Brooks and Pyke 2001, p. 4).
    Several researchers have noted signs of increased habitat 
degradation for Lepidium papilliferum, most notably in terms of exotic 
species cover and wildfire frequency (e.g., Moseley 1994, p. 23; Menke 
and Kaye 2006, p. 19; Colket 2008, pp. 33-34), but only recently have 
analyses demonstrated a statistically significant, negative 
relationship between the degradation of habitat quality, both within 
slickspot microsites and in the surrounding sagebrush-steppe matrix, 
and the abundance of L. papilliferum. Sullivan and Nations (2009, pp. 
114-118, 137) found a consistent, statistically significant, negative 
correlation between wildfire and the abundance of L. papilliferum 
across its range. Their analysis of 5 years of Habitat Integrity and 
Population (HIP) monitoring data indicated that L. papilliferum 
``abundance was lower within those slickspot [sic] that had previously 
burned'' (Sullivan and Nations 2009, p. 137), and the relationship 
between L. papilliferum abundance and fire is reported as ``relatively 
large and statistically significant,'' regardless of the age of the 
fire or the number of past fires (Sullivan and Nations 2009, p. 118). 
The nature of this relationship was not affected by the number of fires 
that may have occurred in the past; whether only one fire had occurred 
or several, the association with decreased abundance of L. papilliferum 
was similar (Sullivan and Nations 2009, p. 118).
    The evidence also points to an increase in the geographic extent of 
wildfire within the range of Lepidium papilliferum. Since the 1980s, 53 
percent of the total L. papilliferum management area acreage rangewide 
has burned, more than double the acreage burned in the preceding three 
decades (from the 1950s through 1970s) (Hardy 2013, in litt.). 
Management areas are units containing multiple EOs in a particular 
geographic area with similar land management issues or administrative 
boundaries as defined in the 2003 Candidate Conservation Agreement 
(State of Idaho 2006, p. 9). Based on available information, 
approximately 11 percent of the total management area burned in the 
1950s; 1 percent in the 1960s; 15 percent in the 1970s; 26 percent in 
the 1980s; 34 percent in the 1990s; and as of 2007, 11 percent in the 
2000s (data based on GIS fire data provided by BLM Boise and Twin Falls 
District; I. Ross 2008, pers. comm. and A. Webb 2008, pers. comm., as 
cited in Colket 2008, p. 33). Incorporating more recent data (fire data 
up to 2012), 12 percent of the total management area burned from 2000 
to 2009, with 1 percent burning from 2010 to 2012 (Hardy 2013, in 
litt.). Based on the negative relationship observed between fire, L. 
papilliferum, and habitat quality as described above, we conclude that 
this increase in area burned translates into an increase in the number 
of L. papilliferum populations subjected to the negative effects of 
wildfire.
    More specifically, an evaluation of Lepidium papilliferum EOs for 
which habitat information has been documented (79 of 80 EOs) 
demonstrates that most have experienced the effects of fire. Fifty-five 
of 79 EOs have been at least partially burned (14 of 16 EOs on the 
Boise Foothills, 30 of 42 EOs on the Snake River Plain and 11 of 21 EOs 
on the Owyhee Plateau), and 75 EOs have adjacent landscapes that have 
at least partially burned (16 of 16 EOs on the Boise Foothills, 39 of 
42 EOs on the Snake River Plain, and 20 of 21 EOs on the Owyhee 
Plateau) (Cole 2009, Threats Table).
    In the 2009 final listing rule, we presented a geospatial data 
analysis that evaluated the total Lepidium papilliferum EO area 
affected by wildfire over 50 years (from 1957 to 2007). This analysis 
found that the perimeter of previous wildfires had encompassed 
approximately 11,442 ac (4,509 ha) of the total L. papilliferum EO area 
rangewide (Stoner 2009, p. 48). However, in this analysis, areas that 
burned twice were counted twice. When we eliminate reoccurring fires 
and reanalyzed the data to account only for how much area burned at 
least once, we find that the perimeter of wildfires that had occurred 
over the same time period (1957-2007) encompassed approximately 7,475 
ac (3,025 ha), or 47 percent of the total L. papilliferum EO area 
rangewide (Hardy 2013, in litt.). At the time of the 2009 final listing 
rule (74 FR 52014; October 8, 2009), the total area of known EOs was 
estimated to be approximately 16,000 ac (6,500 ha) (this area reflects 
only the immediate known locations of individuals of L. papilliferum as 
recognized in the IFWIS database, and does not represent the much 
larger geographic range of the species).
    Since the 2009 listing, wildfires have continued to affect Lepidium 
papilliferum EOs and the surrounding habitat. Data collected over the 
past 5 years (from 2008 to 2012) indicates that there were 15 
additional fires that burned approximately 1,190 ac (482 ha) of L. 
papilliferum EOs, with approximately 850 ac (340 ha) located in areas 
that had not previously burned (Hardy 2013, in litt.). Using new fire 
information since 2009, and considering only impacts to new, previously 
unburned areas, we updated the geospatial analysis and found that over 
the past 55 years (1957-2012) the perimeters of 126 wildfires occurring 
within the known range of L. papilliferum have burned approximately 
8,324 ac (3,369 ha), or 53 percent of the total L. papilliferum EO area 
rangewide (Hardy 2013, in litt.).
    We recognize that caution should be used in interpreting geospatial 
information as it represents relatively coarse vegetation information 
that may not reflect that some EOs may be located within remnant 
unburned islands of sagebrush habitat within fire perimeters. However, 
it is the best available information and provides additional cumulative 
evidence that increased wildfire frequency is ongoing and, as detailed 
in the 2009 final listing rule, is likely facilitating the continued 
spread of invasive plant species and Owyhee harvester ant colony 
expansion, all of which continue to negatively affect Lepidium 
papilliferum and its habitat.
    In addition to the geospatial information, a review of the 
rangewide HIP transect data for evidence of fire history revealed that, 
of the 80 transects, 5 transects (6.25 percent) had partially burned 
(with approximately half of the area unburned), 13 (16.25 percent) were 
predominantly burned, and 18 (22.5 percent) had completely burned 
(Colket 2009, Table 5). Of the remaining 44 transects, 38 (48 percent) 
showed no effects from wildfire and 6 others (7.5 percent) were 
predominantly unburned.
    Climate change models also project a likely increase in wildfire 
frequency within the semiarid Great Basin region

[[Page 8422]]

inhabited by Lepidium papilliferum. Arid regions such as the Great 
Basin where L. papilliferum occurs are likely to become hotter and 
drier; fire frequency is expected to accelerate, and fires may become 
larger and more severe (Brown et al. 2004, pp. 382-383; Neilson et al. 
2005, p. 150; Chambers and Pellant 2008, p. 31; Karl et al. 2009, p. 
83). Under projected future temperature conditions, the cover of 
sagebrush in the Great Basin region is anticipated to be dramatically 
reduced (Neilson et al. 2005, p. 154). Warmer temperatures and greater 
concentrations of atmospheric carbon dioxide create conditions 
favorable to Bromus tectorum, thus continuing the positive feedback 
cycle between the invasive annual grass and fire frequency that poses a 
threat that is having a significant effect on L. papilliferum (Chambers 
and Pellant 2008, p. 32; Karl et al. 2009, p. 83). Under current 
climate-change projections, we anticipate that future climatic 
conditions will favor further invasion by B. tectorum, that fire 
frequency will continue to increase, and the extent and severity of 
fires may increase as well. If current projections are realized, the 
consequences of climate change are, therefore, likely to exacerbate the 
existing primary threats to L. papilliferum of frequent wildfire and 
invasive nonnative plants, particularly B. tectorum. As the 
Intergovernmental Panel on Climate Change (IPCC) projects that the 
changes to the global climate system in the 21st century will likely be 
greater than those observed in the 20th century (IPCC 2007, p. 45), we 
anticipate that these effects will continue and likely increase in the 
future. See Climate Change under Factor E, in the 2009 final listing 
rule for a more detailed discussion of climate change.
    To determine the rate at which wildfire is impacting L. 
papilliferum habitats and how far into the future we can reasonably 
predict the likely effects of wildfire on the species, we assessed the 
available data regarding the extent of L. papilliferum habitat that is 
likely to burn each year. As reported above, over the past 55 years 
(1957 to 2012), the perimeters of 126 wildfires occurring within the 
known range of L. papilliferum have burned approximately 8,324 ac 
(3,369 ha), or 53 percent of the total L. papilliferum EO area 
rangewide (Hardy 2013, in litt.). Thus the annual mean habitat impact 
due to wildfire over the past 55 years is estimated at 150 acres per 
year (ac/yr) (61 hectares per year (ha/yr)). As noted above, we have 
adjusted our analysis to avoid the potential ``double counting'' of 
areas that have burned more than once, and this rate is representative 
of the rate at which new (previously unburned) areas of L. papilliferum 
habitat are affected by wildfire. In the past 5 years alone (from 2008 
to 2012), there were 15 fires that burned approximately 1,190 ac (482 
ha) of L. papilliferum EOs, with approximately 850 ac (340 ha) located 
in areas that had not previously burned (Hardy 2013, in litt.). These 
data indicate that habitat impacts due to wildfire have averaged nearly 
170 ac/yr (69 ha/yr) in the past 5 years.
    At present, we estimate there are approximately 7,567 ac (3,064 ha) 
of L. papilliferum habitat remaining that have not yet been negatively 
impacted by fire. It is our best estimate that future rates of habitat 
impact will continue at the recently observed rate of between 150 ac/yr 
(61 ha/yr) and 170 ac/yr (69 ha/yr); we believe this is a conservative 
estimate, as it does not account for potentially greater rates of loss 
due to the likely effects of climate change and increasing coverage of 
Bromus tectorum. Based on the 55 years of accurate data regarding 
wildfire impacts accumulated so far, we can reasonably and reliably 
predict that this rate will continue into the future at least until the 
point when no unburned habitat for the species will likely remain, 
which is approximately 50 years (Figure 1; USFWS 2013, in litt.). Based 
on the observed rates of habitat impact due to wildfire, we can 
reliably predict that approximately 80 to 90 percent of the remaining 
L. papilliferum habitat not yet impacted by fire will be negatively 
affected by wildfire within roughly the next 36 to 47 years (Figure 1). 
Or, to look at it another way, within the next 36 to 47 years, only 10 
to 20 percent of remaining L. papilliferum habitat will likely be 
unaffected by wildfire.
    As discussed in more detail below in the Summary of Factors 
Affecting the Species, we conservatively conclude that, at this point, 
the species will be in danger of extinction. Thus, because we can 
reasonably predict that L. papilliferum is likely to become an 
endangered species in approximately 36 to 47 years, we consider that 
projection to occur within the foreseeable future, which is at least 50 
years based on the rate at which the primary effect of wildfire is 
expected to act on the species. Because of the synergistic interaction 
between wildfire and the invasion of nonnative plant species, by 
association, we assume that future colonization of L. papilliferum 
habitat by invasive nonnatives will proceed on approximately the same 
timetable (discussed further below).
    We recognize that our model (Figure 1; USFWS 2013, in litt.) is 
relatively simple, assuming, for example, that the impacts to habitat 
from wildfire will continue to occur at a constant rate over time, when 
in reality the extent of area affected by wildfire will vary from year 
to year. However, for our purposes of developing a reliable estimate of 
a timeframe within which L. papilliferum is likely to become 
endangered, we believe this projection makes reasonable use of the best 
scientific data available to predict the effects of wildfire on the 
species over time. As noted above, because of the close and synergistic 
association between the occurrence of wildfire and invasion by 
nonnative plants, followed by habitat loss and fragmentation, we 
believe this timeframe similarly applies to the primary threat of 
invasive nonnative plants and fragmentation and isolation as well.

[[Page 8423]]

[GRAPHIC] [TIFF OMITTED] TP12FE14.002

    In summary, wildfire effects have already impacted 53 percent of 
the total Lepidium papilliferum EO area rangewide. At the current rate 
of habitat impacted by wildfire, we anticipate that 80 to 90 percent of 
the remaining L. papilliferum habitat will be affected by wildfire 
within approximately the next 36 to 47 years. Because we can reliably 
predict that the threats of wildfire, and, by association, invasive, 
nonnative plant species, will cause the species to be in danger of 
extinction at this point, this time period of 36 to 47 years is within 
the foreseeable future.

Invasive, Nonnative Plant Species

    The rate of conversion from native sagebrush-steppe to primarily 
nonnative annual grasslands continues to accelerate in the Snake River 
Plain of southwest Idaho (Whisenant 1990, p. 4), and is closely tied to 
the increased frequency and shortened intervals between wildfires. The 
continued spread of Bromus tectorum throughout the range of Lepidium 
papilliferum, coupled with the lack of effective methods to control or 
eradicate B. tectorum, leads us to conclude that the extent and 
frequency of wildfires will continue to increase indefinitely, given 
the demonstrated positive feedback cycle between these factors 
(Whisenant 1990, p. 4; Brooks and Pyke 2001, p. 5; D'Antonio and 
Vitousek 1992, pp. 73, 75; Brooks et al. 2004, p. 678). Under current 
climate change projections, we also anticipate that future climatic 
conditions will favor further invasion by B. tectorum, that fire 
frequency will likely increase, and the extent and severity of fires 
may increase as well (Brown et al. 2004, pp. 382-383; Neilson et al. 
2005, p. 150; Chambers and Pellant 2008, pp. 31-32; Karl et al. 2009, 
p. 83, Bradley et al., in press, p. 5). As summarized in our 2009 final 
listing rule, ``. . . if the invasion of B. tectorum continues at the 
rate witnessed over the last century, an area far in excess of the 
total range occupied by L. papilliferum could be converted to nonnative 
annual grasslands within the foreseeable future'' (74 FR 52032).
    Invasive, nonnative plants have become established in Lepidium 
papilliferum habitats by spreading through natural dispersal (unseeded) 
or have been intentionally planted as part of revegetation projects 
(seeded). Invasive nonnative plants can alter multiple attributes of 
ecosystems, including geomorphology, wildfire regime, hydrology, 
microclimate, nutrient cycling, and productivity (Dukes and Mooney 
2003, pp. 1-35). They can also negatively affect native plants through 
competitive exclusion, niche displacement, hybridization, and 
competition for pollinators; examples are widespread among native taxa 
and ecosystems (D'Antonio and Vitousek 1992, pp. 63-87; Olson 1999, p. 
5; Mooney and Cleland 2001, p. 1).
    Invasive nonnative plant species pose a serious and significant 
threat to Lepidium papilliferum, particularly when the synergistic 
effects of nonnative, annual grasses and wildfire are considered. 
Invasive, nonnative, unseeded species that pose threats to L. 
papilliferum include the annual grasses Bromus tectorum and 
Taeniatherum caput-medusae that are rapidly forming monocultures across 
the southwestern Idaho landscape. Evidence that B. tectorum is likely 
displacing L. papilliferum is provided by Sullivan and Nations' (2009, 
p. 135) statistical analyses of L. papilliferum abundance and nonnative 
invasive plant species cover within slickspots. Working with 5 years of 
HIP data collected from 2004 through 2008, Sullivan and Nations found 
that the presence of other plants in slickspots, particularly invasive 
exotics such as Bassia prostrata (forage kochia), a seeded nonnative 
plant species, and Bromus tectorum, was associated with the almost 
complete exclusion of L. papilliferum from those microsites (Sullivan 
and Nations 2009, pp. 111-112). According to their analysis, the 
presence of B. tectorum in

[[Page 8424]]

the surrounding plant community shows a consistently significant 
negative relationship with the abundance of L. papilliferum across all 
physiographic regions (Sullivan and Nations 2009, pp. 131, 137), and a 
significant negative relationship with L. papilliferum abundance within 
slickspots in the Snake River Plain and Boise Foothills regions 
(Sullivan and Nations 2009, p. 112).
    Additionally, we have increasing evidence that nonnative plants are 
invading the slickspot microsite habitats of Lepidium papilliferum 
(Colket 2009, Table 4, pp. 37-49) and successfully outcompeting and 
displacing the species (Grime 1977, p. 1185; DeBolt 2002, in litt; 
Quinney 2005, in litt; Sullivan and Nations 2009, p. 109). Monitoring 
of HIP transects shows that L. papilliferum-occupied sites that were 
formerly dominated by native vegetation are showing relatively rapid 
increases in the cover of nonnative plant species (Colket 2008, pp. 1, 
33). Regarding Bromus tectorum in particular, vast areas of the Great 
Basin are already dominated by this nonnative annual grass, and 
projections are that far greater areas are susceptible to future 
invasion by this species (Pellant 1996, p. 1). In addition, most 
climate change models project conditions conducive to the further 
spread of nonnative grasses such as B. tectorum in the Great Basin 
desert area occupied by L. papilliferum in the decades to come (see 
Climate Change under Factor E, below).
    Geospatial analyses indicate that by 2008 approximately 20 percent 
of the total area of all Lepidium papilliferum EOs rangewide was 
dominated by introduced invasive annual and perennial plant species 
(Stoner 2009, p. 81). Because this analysis only considered areas that 
were `dominated' by introduced invasive species, it does not provide a 
comprehensive estimate of invasive species presence within the range of 
L. papilliferum. For example, the 2008 HIP monitoring results revealed 
that all 80 HIP transects monitored within 54 EOs had some (Colket 
2009, Table 4, pp. 37-49) nonnative, unseeded plant cover. The 2008 HIP 
monitoring results also revealed that, of the 80 HIP transects, 18 
transects had some level of nonnative, seeded plant cover (Colket 2009, 
Table 4, pp. 37-49). In addition, monitoring of HIP transects rangewide 
indicated that nonnative plant cover is continuing to increase at a 
relatively rapid pace (Colket 2008, pp. 1, 3). For example, Colket 
(2008, pp. 1-3) reported increases in nonnative plant species cover of 
5 percent or more over the span of 4 to 5 years in 28 percent of the 
HIP transects formerly dominated by native plant species. More recent 
data collected by the Idaho Department of Fish and Game (IDFG) since 
2009 indicates that the number of transects with a percent or more 
increase in nonnative cover since establishment of the transect has 
significantly increased from 40 transects in 2009 to 61 transects in 
2011 (IDFG 2012, pp. 12-13). In the 2012 report (p. 10), it was noted 
that ``many transects had far more than a 5% increase, and some were so 
heavily invaded that they were barely recognizable as slickspots.''
    Bradley and Mustard (2006, p. 1146) found that the best indicator 
for predicting future invasions of Bromus tectorum was the proximity to 
current populations of the grass. Colket (2009, pp. 37-49) reports that 
52 of 80 HIP transects (65 percent) had B. tectorum cover of 0.5 
percent or greater within slickspots in at least 1 year between 2004 
and 2008; nearly 95 percent of slickspots had some B. tectorum present. 
If current proximity to B. tectorum is an indicator of the likelihood 
of future invasion by that nonnative species, then Lepidium 
papilliferum is highly vulnerable to future invasion by B. tectorum 
throughout its range. If the invasion of B. tectorum continues at the 
rate witnessed over the last century, an area far in excess of the 
total range occupied by L. papilliferum could be converted to nonnative 
annual grasslands in the near future. First introduced around 1889 
(Mack 1981, p. 152), B. tectorum cover in the Great Basin is now 
estimated at approximately 30,000 mi\2\ (80,000 km\2\) (Menakis et al. 
2003, p. 284), translating into an historical invasion rate of 
approximately 300 mi\2\ (700 km\2\) a year over 120 years. In addition, 
climate change models for the Great Basin region also predict climatic 
conditions that will favor the growth and further spread of B. tectorum 
(See Climate Change under Factor E, in the 2009 final rule (74 FR 
52014; October 8, 2009) for a more detailed discussion of climate 
change).
    Given the observed negative association between the abundance of 
Lepidium papilliferum and invasive nonnative plants both within 
slickspot microsites and in the surrounding plant community, the 
demonstrated ability of some nonnative plants to displace L. 
papilliferum from slickspots, and the recognized contribution of 
nonnative plants such as Bromus tectorum to the increased fire 
frequency that additionally poses a primary threat to the species, we 
consider invasive nonnative plants to pose a threat that is having a 
significant effect on L. papilliferum. Currently, there are no feasible 
means of controlling the spread of B. tectorum or the subsequent 
increases in wildfire frequency and extent once B. tectorum is 
established on a large scale (Pellant 1996, pp. 13-14; Menakis et al. 
2003, p. 287; Pyke 2007). The eradication of other invasive nonnative 
plants poses similar management challenges, and future land management 
decisions will determine the degree to which seeded nonnative plants 
may affect L. papilliferum.
    In summary, data shows that all 80 HIP monitoring transects have 
some level of invasive nonnative plant species; that by 2008, 20 
percent of the total area of all Lepidium papilliferum EOs rangewide 
was dominated by introduced invasive plant species; and nonnative plant 
cover is continuing to increase at a relatively rapid rate. Given the 
synergistic relationship between wildfire and the spread of invasive 
nonnative plant species, such as Bromus tectorum, combined with the 
fact that broadscale eradication methods for controlling these threats 
have not been developed, we anticipate that 80 to 90 percent of the 
remaining Lepidium papilliferum habitat will be affected by invasive 
nonnative plant species, to the point where they are outcompeting L. 
papilliferum, on a timeframe similar to that of increased wildfire 
effects. As with the primary threat of wildfire, because we can 
reliably predict that the associated primary threat of invasive, 
nonnative plant species will cause the species to be in danger of 
extinction in approximately 36 to 47 years, this time period is within 
the foreseeable future.

Planned or Proposed Development

    Although the threat of development is relatively limited in 
geographic scope, the effect of development on Lepidium papilliferum 
can be severe, potentially resulting in the direct loss of individuals, 
and perhaps more importantly, the permanent loss of its unique 
slickspot microsite habitats. As described in the Background section of 
the 2009 final listing rule, L. papilliferum occurs primarily in 
specialized slickspot microsites. Slickspots and their unique edaphic 
and hydrological characteristics are products of the Pleistocene 
period, and they likely cannot be recreated on the landscape once lost. 
The potential, direct loss of slickspots to the effects from 
development, particularly those slickspots that are currently occupied 
by the species and provide the requisite conditions to support L. 
papilliferum, is therefore of great concern in terms of providing for 
the long-term viability of the species.

[[Page 8425]]

    Development can also affect Lepidium papilliferum through indirect 
effects by contributing to increased habitat fragmentation, nonnative 
plant invasion, human-caused ignition of wildfires, and potential 
reductions in the population of insect pollinators. Development of 
sagebrush-steppe habitat is of particular concern in the Boise 
Foothills region, which, although relatively limited in its geographic 
extent, supports the highest abundance of L. papilliferum plants per 
HIP transect (Sullivan and Nations 2009, pp. 3, 103, 134). Past 
development has eliminated some historical L. papilliferum EOs (Colket 
et al. 2006, p. 4), and planned and proposed future developments 
threaten several occupied sites in the Snake River Plain and Boise 
Foothills regions (see below). Most of the recent development effects 
have occurred on the Snake River Plain and Boise Foothills regions, 
which collectively comprise approximately 83 percent of the extent of 
EOs; development has not been identified as an issue on the Owyhee 
Plateau (Stoner 2009, pp. 13-14, 19-20).
    In the 2009 final listing rule (74 FR 52036), we were aware of 10 
approved or proposed development projects planned for these regions 
(State of Idaho 2008, pp. 3-5), which would affect 13 out of 80 EOs (16 
percent of EOs). However, many of these proposed developments and 
associated infrastructure projects are no longer being considered for 
implementation. Currently, we are aware of only three projects that 
could potentially affect Lepidium papilliferum and its habitat (Chaney, 
pers. comm. 2013a). The Spring Valley Planned Community (a.k.a., the M3 
Development), is a 5,600-ac (2,300-ha) development that is scheduled 
for initiating construction in 2013 in the foothills north of Eagle. 
Construction is planned for five phases over a 20-year period. It is 
expected that the development and its associated infrastructure on 
adjacent Federal lands will result in some effects to the species and 
its habitat at three EOs (52, 76, and 108) (Hardy, pers. comm. 2013). 
The Dry Creek Ranch Development is a 1,400-ac (570-ha) development 
located north of Hidden Springs in Idaho. It is proposed to be built in 
five phases over a 10-year period (Chaney, pers. comm. 2013b). This 
development appears to overlap slightly with EO 38 (a D-ranked EO). Due 
to the low quality of the development map, the amount of overlap is 
uncertain, although it appears to be a very small area relative to the 
size of the EO polygon (Chaney, pers. comm. 2013c). This area is 
currently proposed as a designated natural area of the development; 
therefore, direct effects associated with construction of the 
development are expected to be minimal.
    In addition, the Gateway West Transmission Line Project, which is 
scheduled to be constructed in phases from 2016 through 2021, would 
likely affect the species and its habitat, including proposed critical 
habitat, in southwestern Idaho. Although a final routing of the project 
has not yet been determined, the Gateway West Transmission Line Project 
could potentially affect 5 EOs within the project footprint and a total 
of 11 EOs within the Action Area (defined as the right-of-way footprint 
and the additional 0.5-mi (0.8-km) buffer (Tetra Tech 2013, p. 64)).
    Though these developments and associated infrastructure projects 
have not yet been constructed, they define the foreseeable future with 
respect to development. Given the current information, based on 
approved or proposed project plans and proposed construction timelines, 
we anticipate that approximately 17 percent of known Lepidium 
papilliferum EOs will be affected by development within the next 20 
years. This period of time represents the foreseeable future with 
respect to development, as this is the period of time over which we can 
reasonably predict development and associated infrastructure projects 
that will likely occur. The threat of development will have a negative 
effect on the species in combination with the primary threats of 
wildfire and invasive, nonnative plants. However, the effects of 
development are secondary to the effects on the species from the 
primary threats of an altered wildfire regime and invasive nonnative 
plants; thus, we do not anticipate that the threat of development alone 
will cause L. papilliferum to become an endangered species within this 
timeframe or significantly alter our prediction of when this species 
will become in danger of extinction.

Habitat Fragmentation and Isolation of Small Populations

    Lepidium papilliferum occurs in naturally patchy microsite 
habitats, and the increasing degree of habitat fragmentation produced 
by wildfires and development threatens to isolate and fragment 
populations beyond the distance that its insect pollinators are capable 
of traveling. Genetic exchange in L. papilliferum is achieved through 
either seed dispersal or insect-mediated pollination (Robertson and 
Ulappa 2004, pp. 1705, 1708; Stillman et al. 2005, pp. 1, 6-8), and 
plants that receive pollen from more distant sources demonstrate 
greater reproductive success in terms of seed production (Robertson and 
Ulappa 2004, pp. 1705, 1708). Lepidium papilliferum habitats separated 
by distances greater than the effective range of available pollinating 
insects are at a genetic disadvantage, and may become vulnerable to the 
effects of loss of genetic diversity (Stillman et al. 2005, pp. 1, 6-8) 
and a reduction in seed production (Robertson et al. 2004, p. 1705). A 
genetic analysis of L. papilliferum suggested that populations in the 
Snake River Plain and the Owyhee Plateau may have reduced genetic 
diversity (Larson et al. 2006, p. 17; note the Boise Foothills were not 
analyzed separately in this study).
    Many of the remaining occurrences of Lepidium papilliferum, 
particularly in the Snake River Plain and Boise Foothills regions, are 
restricted to small, remnant patches of suitable sagebrush-steppe 
habitat. When last surveyed, 31 EOs (37 percent) each had fewer than 50 
plants (Colket et al. 2006, Tables 1 to 13). Many of these small 
remnant EOs exist within habitat that is degraded by the various threat 
factors previously described. Small L. papilliferum populations are 
likely persisting due to their long-lived seed bank, but the long-term 
risk of depletion of the seed banks for these small populations and the 
elimination of new genetic input make the persistence of these small 
populations uncertain. Providing suitable habitats and foraging 
habitats for the species' insect pollinators is important for 
maintaining L. papilliferum genetic diversity. Small populations are 
vulnerable to relatively minor environmental disturbances such as 
wildfire, herbicide drift, and nonnative plant invasions (Given 1994, 
pp. 66-67), and are subject to the loss of genetic diversity from 
genetic drift and inbreeding (Ellstrand and Elam 1993, pp. 217-237). 
Smaller populations generally have lower genetic diversity, and lower 
genetic diversity may in turn lead to even smaller populations by 
decreasing the species' ability to adapt, thereby increasing the 
probability of population extinction (Newman and Pilson 1997, p. 360).
    Habitat fragmentation from the effects of development or wildfires 
has affected 62 of the 79 EOs for which habitat information is known 
(15 of 16 on the Boise Foothills, 35 of 42 on the Snake River Plain, 
and 12 of 21 on the Owyhee Plateau), and 78 EOs (all except one on the 
Owyhee Plateau) have fragmentation occurring within 1,600 ft (500 m) of 
the EOs (Cole 2009, Threats Table). Additionally, development projects 
are

[[Page 8426]]

planned within the occupied range of Lepidium papilliferum that would 
contribute to further large-scale fragmentation of its habitat, 
potentially resulting in decreased viability of populations through 
decreased seed production, reduced genetic diversity, and the increased 
inherent vulnerability of small populations to localized extirpation 
(See Development, above).
    In summary, the increasing degree of fragmentation of Lepidium 
papilliferum and its habitat is primarily produced by wildfires, loss 
and conversion of surrounding sagebrush-steppe habitats, and the 
effects of development. We can reliably predict that habitat 
fragmentation effects will continue at a rate similar to wildfire and 
other threat effects, such that 80 to 90 percent of the remaining L. 
papilliferum habitat will be affected within roughly the next 36 to 47 
years, which is, therefore, within the foreseeable future.

Owyhee Harvester Ants

    In recent years, concern has emerged over the potential detrimental 
effects of seed predation on Lepidium papilliferum by the Owyhee 
harvester ant (Robertson and White 2009). Robertson and White reported 
that Owyhee harvester ants can remove up to 90 percent of L. 
papilliferum fruits and seeds, either directly from the plant or by 
scavenging seeds that drop to the ground (Robertson and White 2009, p. 
9). A more recent study (Robertson and Crossman, 2012) corroborated the 
results from Robertson and White (2009), and goes further by showing 
that seed loss through predation by Owyhee harvester ants remains high 
(median = 92 percent), even when total seed output for individual 
plants is considered. For example, in one of their paired samples, they 
found 4,861 seeds beneath the control plant, but only 301 seeds beneath 
the plant exposed to ants. In another, they found 2,328 seeds beneath 
the control plant and 365 beneath the treatment plant. These results 
demonstrate that Owyhee harvester ants have the capacity to remove a 
large percentage of the seeds produced by L. papilliferum, even when 
seed output numbers in the thousands.
    Data also suggests that the number of Owyhee harvester ant colonies 
is increasing in the range of Lepidium papilliferum. In 2010, 
researchers recorded 842 harvester ant colonies across 15 study sites. 
Results from 2012 demonstrate that only 2 years later, that number has 
increased to 947 colonies, which represents a 12.5 percent increase, 
resulting from the loss of 133 colonies and the addition of 239 
(Robertson 2013, p. 4).
    Although Owyhee harvester ants are a native species, they are 
increasingly colonizing areas occupied by Lepidium papilliferum in 
response to the ongoing degradation of native sagebrush systems. The 
expansion of Owyhee harvester ant colonies coincides with the 
replacement of sagebrush by grasses, and the increase in seed predation 
as a consequence of harvester ants expanding into areas adjacent to 
occupied slickspots has the potential to significantly affect L. 
papilliferum recruitment and the replenishment of the seed bank, which 
could affect the long-term viability of L. papilliferum.
    Studies are currently underway to investigate Owyhee harvester ant 
colony dynamics within Lepidium papilliferum habitat. However, we 
currently lack enough data to develop a foreseeable future estimate for 
this threat at this time, although we expect the threat to continue to 
increase as the number of ant colonies continues to increase as a 
result of increased wildfire and the associated conversion of sagebrush 
to grasses.

Consideration of Conservation Measures

    The threats to Lepidium papilliferum are ongoing and acting 
synergistically to negatively affect the species and its habitat, and 
are expected to continue into the foreseeable future. Although 
conservation measures to address some of these threat factors have been 
considered by the Service, as described in the 2009 final listing rule, 
effective controls to address the increased frequency of wildfire and 
eradicate the expansive infestation of nonnative plants throughout the 
range of L. papilliferum are not currently available, nor do we 
anticipate that controls will become available anytime soon that are 
likely to be effective on a scale sufficient to prevent the species 
from becoming in danger of extinction in the foreseeable future.
    In addition to those conservation measures evaluated in the 2009 
final listing rule, we considered a relatively new conservation 
measure. Rangeland Fire Protection Associations (RFPAs) are currently 
being established in some parts of southern Idaho, where important 
habitat for Greater sage-grouse (Centrocercus urophasianus) (``sage-
grouse'') occurs. These RFPAs are designed to provide ranchers and 
landowners in rural areas with the necessary tools and training to 
allow them to assist with wildfire prevention and respond quickly to 
wildfire in areas containing sage-grouse habitat. One of these RFPAs, 
the Three Creek RFPA, has been established within the Lepidium 
papilliferum Owyhee Plateau physiographic region, where both L. 
papilliferum and sage-grouse co-occur. Benefits from first response to 
wildland fires that are realized to sage-grouse within this RFPA may 
also extend to L. papilliferum habitat in that area. Another RFPA, the 
Mountain Home RFPA, is located in the vicinity of L. papilliferum 
occupied habitat within the Snake River Plain physiographic region.
    Idaho Code Section 38-104 was amended during the 2013 legislative 
session to clarify the requirements and process for the establishment 
of the RFPAs (State Board of Land Commissioners, 2013). Applicants that 
meet the requirements of an RFPA enter into a Master Agreement with the 
State, which provides them with the legal authority to detect, prevent, 
and suppress fires in the RFPA boundaries. RFPAs also require a 
Cooperative Fire Protection Agreement between the individual RFPA and 
the appropriate Federal agency, which provides the RFPAs the authority 
to take action on Federal land (Houston 2013, pers. comm.; Glazier 
2013, pers. comm.). Although RFPAs have not yet demonstrated their 
ability to address the increased frequency of wildfire within the range 
of L. papilliferum, effective management of fire as a threat is often 
dependent on the timeliness of initial response efforts. Therefore, 
while RFPAs have not yet shown to be effective to offset the threats to 
the species to the point that it is not likely to become an endangered 
species within the foreseeable future, we view their formation as a 
positive conservation step for sagebrush-steppe habitat.

Summary of Factors Affecting the Species

    The current status of Lepidium papilliferum reflects the past 
effects from the threats described above that have already affected or 
degraded more than 50 percent of the species' unique habitats, as well 
as the continued and ongoing vulnerability of the species' slickspot 
habitats to these same threats. Because we still do not see strong 
evidence of a steep negative population trend for the species 
(consistent with what we described in our 2009 final listing rule (74 
FR 52051)), we believe that L. papilliferum is not in immediate danger 
of extinction. We do, however, conclude that L. papilliferum is likely 
to become in danger of extinction in the foreseeable future, based on 
our assessment of that period of time over which we can reasonably rely 
on predictions regarding the threats to the species. Our analysis has 
led us to conclude that future effects from the

[[Page 8427]]

synergistic and cumulative effects of increased wildfire, invasive 
nonnative plants, development, and other threat factors will affect the 
remaining L. papilliferum habitats at a level where the species would 
persist in only a small number of isolated EOs, with 80 to 90 percent 
of its remaining habitat impacted by these threats, and most likely 
with small populations and fragmented from other extant populations. At 
this point, we would consider the species to be in danger of 
extinction.
    Given the wildfire history that has affected approximately 53 
percent of the L. papilliferum habitat over the last 55 years (1957-
2012), combined with the ongoing, expansive infestation of invasive 
plants across the species' range, and the fact that no broad-scale 
Bromus tectorum eradication methods or effective means for controlling 
the altered wildfire regime have been developed, these threats to L. 
papilliferum can reasonably be anticipated to continue for at least 50 
years, and probably indefinitely. This information (in concert with the 
observed negative association between these ongoing and persistent 
threats and the species' distribution and abundance throughout its 
range, along with reasonable predictions about future conditions) leads 
us to the conclusion that at the current and anticipated rate of future 
habitat effects, L. papilliferum is likely to be in danger of 
extinction within the next 36 to 47 years, which is within the 
foreseeable future (the time period of at least 50 years, over which we 
can reliably predict the primary threat factors will continue to act 
upon the species). At this point, we believe 80 to 90 percent of its 
habitat will have been affected by the primary threats to the species, 
and L. papilliferum would likely persist only in a small number of 
isolated and fragmented populations.

Determination

    Based on an assessment of the best scientific and commercial data 
available regarding the present and future threats to the species, we 
conclude that threatened status should be reinstated for Lepidium 
papilliferum. The plant is endemic to southwest Idaho and is limited in 
occurrence to an area that totals approximately 16,000 ac (6,500 ha). 
The species' unique slickspot habitats are finite and are continuing to 
degrade in quality due to a variety of threats. The species' limited 
area of occurrence makes it particularly vulnerable to the various 
threats affecting its specialized microsite habitats, and more than 50 
percent of L. papilliferum EOs are already known to have been impacted 
from the effects of wildfire. The primary threats to the species are 
the effects of wildfire and invasive nonnative plants, especially 
Bromus tectorum. As stated in our 2009 final listing rule, we now have 
information indicating a statistically significant negative association 
between L. papilliferum abundance and wildfire, and between L. 
papilliferum abundance and cover of B. tectorum in the surrounding 
plant community. These negative associations are consistent throughout 
the range of the species. Wildfire continues to affect L. papilliferum 
habitat throughout the range at an annual rate higher than described in 
our 2009 final listing rule, and we expect this trend to continue and 
possibly further increase due to the projected effects of climate 
change. Furthermore, B. tectorum and other nonnative species continue 
to spread and degrade the sagebrush-steppe ecosystem where L. 
papilliferum persists, and we anticipate increased wildfire frequency 
and effects in those areas where nonnative plant species, especially B. 
tectorum, are dominant.
    Similar to our findings in our 2009 final listing rule, although we 
do not see strong evidence of a steep negative population trend for the 
species, it should be noted that the total number of Lepidium 
papilliferum plants counted in HIP monitoring in 2011 and 2012 were the 
lowest since 2005, when complete counts for the species were initiated, 
with 16,462 plants in 2011 and 9,202 plants in 2012. Above-ground 
numbers of L. papilliferum individuals can fluctuate widely from one 
year to the next; however, because the primary threats of wildfire and 
nonnative invasive plants, especially Bromus tectorum, are currently 
affecting the species throughout its limited range, the recent 2011 and 
2012 low population counts are of concern. All available information 
indicates that all the significant threats described in the 2009 final 
listing rule and this new analysis, including wildfire, nonnative 
invasive plants, development, and habitat fragmentation, will continue 
and likely increase into the foreseeable future. The projected future 
effects of climate change will further magnify the primary threats from 
wildfire and B. tectorum, and, by association with the resulting 
increase in grasses, the further expansion of Owyhee harvester ants. 
Although conservation measures to address some of these threat factors 
have been considered by the Service, effective controls to address the 
increased frequency of wildfire and eradicate the expansive infestation 
of nonnative plants throughout the range of the L. papilliferum are not 
currently available and are not likely to be available within the 
foreseeable future.
    As found in our 2009 final listing rule (74 FR 52052), we 
anticipate the continuation or increase of all of the significant 
threats to Lepidium papilliferum into the foreseeable future, even 
after accounting for ongoing and planned conservation efforts, and we 
find that the best available scientific data indicate that the negative 
consequences of these threats on the species will likewise continue or 
increase. Population declines and habitat degradation will likely 
continue in the foreseeable future to the point at which L. 
papilliferum will become in danger of extinction.
    Section 3 of the Act defines an endangered species as ``any species 
which is in danger of extinction throughout all or a significant 
portion of its range'' and a threatened species as ``any species which 
is likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range.'' Because we have 
not yet observed the extirpation of local Lepidium papilliferum 
populations or steep declines in trends of abundance, we do not believe 
the species is presently in danger of extinction, or meets the 
definition of an endangered species. However, as noted earlier, we do 
anticipate that L. papilliferum will become in danger of extinction 
when it reaches the point that its habitat has been so diminished that 
the species persists only in a small number of isolated EOs, with small 
populations that are fragmented from other extant populations. We 
conservatively estimate this point will be reached in approximately 36 
to 47 years, when 80 to 90 percent of its remaining habitat will have 
been affected based on the ongoing range of rates of L. papilliferum 
habitat impacted by fire, and the close association between fire and 
invasion by Bromus tectorum and other nonnative invasive plants. We 
can, therefore, reasonably assume that, without the unanticipated 
development of future effective conservation measures, the magnitude of 
the threats affecting L. papilliferum and its habitats will become 
progressively more severe, and that those threats, acting 
synergistically, are likely to result in the species becoming in danger 
of extinction within the next 36 to 47 years, which is within the 
foreseeable future as we have defined it here for the species. 
Therefore, we conclude that, under the Act, threatened status should be 
reinstated for L. papilliferum throughout all of its range,

[[Page 8428]]

and we seek public input on this determination. If, following 
consideration of public comments, we decide to list L. papilliferum 
under the Act, we will also pursue designating critical habitat for 
this species. For information and the opportunity to comment on that 
proposed rulemaking process, see our related document published 
elsewhere in today's Federal Register.

References Cited

    A complete list of all references cited in this rule is available 
on the Internet at http://www.regulations.gov . In addition, a complete 
list of all references cited herein, as well as others, is available 
upon request from the Idaho Fish and Wildlife Office, Boise, Idaho (see 
ADDRESSES).

Authors

    The primary authors of this document are the staff members of the 
Idaho Fish and Wildlife Office, U.S. Fish and Wildlife Service (see 
ADDRESSES).

Authority

    The authority for this action is the Endangered Species Act of 
1977, as amended (16 U.S.C. 1531 et seq.).

    Dated: January 14, 2014.
Stephen D. Guertin,
Deputy Director, U.S. Fish and Wildlife Service.
[FR Doc. 2014-03133 Filed 2-11-14; 8:45 am]
BILLING CODE 4310-55-P