[Federal Register Volume 81, Number 159 (Wednesday, August 17, 2016)]
[Rules and Regulations]
[Pages 55058-55084]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19528]
[[Page 55057]]
Vol. 81
Wednesday,
No. 159
August 17, 2016
Part IV
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Threatened Status for
Lepidium papilliferum (Slickspot Peppergrass) Throughout Its Range;
Final Rule
Federal Register / Vol. 81 , No. 159 / Wednesday, August 17, 2016 /
Rules and Regulations
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. 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: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
threatened status under the Endangered Species Act of 1973, as amended,
for Lepidium papilliferum (slickspot peppergrass), a plant species from
the State of Idaho. Lepidium papilliferum was added to the List of
Endangered and Threatened Plants as a threatened species through the
publication of a final rule on October 8, 2009. The Idaho District
Court subsequently vacated the listing of L. papilliferum and remanded
the final rule to the Service for the purpose of reconsidering the
definition of the ``foreseeable future'' in regard to this particular
species. The Court did not question the science underlying the
Service's determination of threatened status for the species. We have
reconsidered the definition of ``foreseeable future'' for L.
papilliferum in this final rule; therefore, it addresses the Court's
remand. The effect of this regulation is to reinstate threatened
species status of L. papilliferum on the List of Endangered and
Threatened Plants.
DATES: This rule becomes effective September 16, 2016.
ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and http://www.fws.gov/idaho. Some of the comments
and materials we received, as well as supporting documentation we used
in preparing this rule, are available for public inspection at http://www.regulations.gov, under Docket Number FWS-R1-ES-2013-0117. All of
the comments, materials, and documentation that we considered in this
rulemaking are available by appointment, during normal business hours
at: 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.
FOR FURTHER INFORMATION CONTACT: Dennis Mackey, 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
Why we need to publish a rule. Under the Endangered Species Act of
1973, as amended (ESA or Act), a species may warrant protection through
listing if it is endangered or threatened throughout all or a
significant portion of its range. Listing a species as an endangered or
threatened species can only be completed by issuing a rule.
This rule reaffirms the listing of Lepidium papilliferum (slickspot
peppergrass) as a threatened species throughout its range, as initially
published on October 8, 2009 (74 FR 52014).
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 remanding 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 (74 FR 52014, October 8, 2009).
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.
In order to ensure that our present determination remains based on
the best scientific and commercial data available, we have evaluated
any new scientific information that may have become available since our
2009 final listing rule (74 FR 52014, October 8, 2009), and re-
evaluated the status of Lepidium papilliferum under the Act with an
amended definition of the foreseeable future, consistent with the
Court's opinion and as applied specifically to this species.
The basis for our action. Section 4 of the Act and its implementing
regulations (50 CFR part 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 species 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. We
have determined that Lepidium papilliferum meets the definition of a
threatened species under the Act, based on the present or threatened
destruction, modification, or curtailment of its habitat and range due
to the increased frequency and extent of wildfires under a wildfire
regime modified and exacerbated by the spread of invasive nonnative
plants, particularly nonnative annual grasses such as Bromus tectorum
(cheatgrass). In addition, even under conservative projections of the
consequences of future climate change, the threats posed by wildfire
and the invasion of B. tectorum are expected to further increase into
the future. Other threats to the species include competition and
displacement by nonnative plant species, development, potential seed
predation by harvester ants, and habitat fragmentation and isolation of
small populations.
Public Comment. We sought comment on our interpretation of the
foreseeable future as it applies specifically to Lepidium papilliferum,
and solicited
[[Page 55059]]
any new scientific and commercial data that may have become available
since the publication of our October 8, 2009, final listing rule (74 FR
52014). The initial comment period on the reconsideration of final rule
for Lepidium papilliferum was open for 30 days, from February 12, 2014,
through March 14, 2014 (79 FR 8416, February 12, 2014). On April 21,
2014, we reopened the comment period for an additional 45 days, through
June 5, 2014 (79 FR 22076). In developing this final rule, we
considered all comments and information received during the comment
periods.
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 (74 FR 52014, October 8, 2009) 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).
On February 12, 2014, we published in the Federal Register a
proposed reconsideration of the final rule and request for comments (79
FR 8416). That document presented the Service's interpretation of the
term ``foreseeable future'' as it applies specifically to Lepidium
papilliferum and, based upon an evaluation of threats to the species
under this timeframe, proposed to reinstate threatened status for the
species. We sought public input on our definition of the foreseeable
future for L. papilliferum, as well as on our proposed determination to
reinstate threatened status for the species, during two public comment
periods. The first comment period opened with publication of the
reconsideration of final rule on February 12, 2014 (79 FR 8416), and
closed on March 14, 2014. On April 21, 2014, in response to a request
from the Idaho Governor's Office of Species Conservation, we reopened
the comment period for an additional 45 days (79 FR 22076); that
comment period closed on June 5, 2014.
Subsequent to the October 8, 2009, listing of Lepidium papilliferum
as a threatened species (74 FR 52014), but prior to the August 8, 2012,
Court vacatur of that final rule, we published a proposed rule to
designate critical habitat for L. papilliferum (76 FR 27184, May 10,
2011). We suspended rulemaking on the proposed critical habitat
following the Court's ruling vacating the listing. However, on February
12, 2014, concurrent with our publication of the proposed
reconsideration of the listing, we published a revision of the proposed
critical habitat for L. papilliferum (79 FR 8402; please see that
document for a summary of all comment periods associated with the
proposed critical habitat rule). We will finalize our critical habitat
designation for L. papilliferum subsequent to this rulemaking.
In this final rule, after considering all comments and information
received, we have concluded that threatened status should be reinstated
for Lepidium papilliferum, and reinstate its listing as a threatened
species on the Federal List of Endangered and Threatened Plants, as
originally published on October 8, 2009 (74 FR 52014).
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 listing 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 Listing of Lepidium papilliferum
We have evaluated information presented in the 2009 final listing
rule (74 FR 52014, October 8, 2009), 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 Lepidium 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 have become available since our 2009 final listing rule (74 FR
52014, October 8, 2009). In 2011, 2012, and 2013 the total number of
Lepidium papilliferum plants counted was the lowest since 2005, when
complete counts for this species were initiated (16,462 plants in 2011;
9,245 plants in 2012; and 6,351 in 2013) (Kinter 2012, in litt.; Kinter
2015, in litt.). In 2014, however, 45,569 total plants were counted,
which represented the third highest number of plants observed over the
10 years of HIP monitoring (Kinter 2015, 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 (Idaho
Department of Fish and Game (IDFG) 2012, p. 5). Meyer et al. (2005, p.
21) suggest that L. papilliferum relies on years with extremely
favorable climatic
[[Page 55060]]
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. The large differences
in abundance seen over the past few years is thus not unexpected, and
is consistent with our earlier observation that the extreme variability
in annual counts poses a challenge in terms of assessing trend
information (74 FR 52014, p. 52024; October 8, 2009).
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, some 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 11 new EOs have been located. According to the most recent
IFWIS data, there are now 91 extant L. papilliferum EOs. The discovery
of some new occupied sites is not unexpected, given that not all
potential L. papilliferum habitats in southwest Idaho have been
surveyed. While the 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. Furthermore, they are all
subject to the same threats affecting the species, and for the EOs that
have been ranked, 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. Three additional EOs are currently unranked
(IFWIS data from January 2015). See the Monitoring of Lepidium
papilliferum Populations section in the October 8, 2009, final listing
rule (74 FR 52014) for a more detailed discussion of EOs and an
explanation of the ranking system.
As discussed below in the section Factors Affecting the Species,
the new information is consistent with 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 species 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), available at https://solicitor.doi.gov/opinions/M-37021.pdf.
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).
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In our October 8, 2009, final listing rule (74 FR 52014), 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, October 8, 2009).
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 L. papilliferum is likely
to become an endangered species as a result of the effects of wildfire,
invasive nonnative plants, and other threats to the species. As
explained below, with respect to the principal threat factors, the
foreseeable future for L. papilliferum is at least 50 years.
Factors Affecting the Species
Section 4 of the Act and its implementing regulations (50 CFR part
424) set forth the procedures for adding species to the Federal Lists
of Endangered and Threatened Wildlife and Plants. The Service may
determine a species is an endangered species 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 2009 final listing rule
(74 FR 52014, October 8, 2009). 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, as identified in that final listing
rule. 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), both of
which are further exacerbated by climate change; 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 for L. papilliferum would be (in danger of extinction throughout
all or a significant portion of its range). 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, such
that the remaining populations would be incapable of interchange
sufficient to maintain the long-term existence of the species.
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 subject any such EOs to a high degree of vulnerability, such that
they will likely not be viable over the long term. For example,
wildfire often leads to a type conversion of 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 local extirpation and finally extinction, as detailed in
the Summary of Factors Affecting the Species, below.
In order to estimate when this situation (reaching the point of
endangerment) might occur, we chose a threshold of 80 to 90 percent
loss of or damage to the currently remaining unburned habitat. We based
this threshold on the rationale that should this loss of 80 to 90
percent of current habitat happen, we conclude the remaining 10 to 20
percent of L. papilliferum's 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 80 to 90 percent of its present remaining habitat, as yet
unburned, 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 to 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
[[Page 55062]]
(74 FR 52014, October 8, 2009), 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 effects of the identified threats; (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 2009 final listing rule (74 FR 52014, October
8, 2009) 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. As a result, the wildfire frequency interval has
been drastically shortened from a historical range of approximately 60
to over 300 years, depending on the species of sagebrush and other
site-specific characteristics, 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; Bukowski and Baker 2013,
p. 557). Not only are wildfires burning far more frequently, but these
wildfires tend to be larger and burn more uniformly than those that
occurred historically, resulting in fewer patches of unburned
vegetation, which affects the post-fire recovery of native sagebrush-
steppe 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 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, 63
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 2015, in litt.; note this
is a different calculation than the 53 percent of the total EO area
that has burned, cited below). 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 for Lepidium papilliferum (State of
Idaho 2006, p. 9). Based on previous 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 geographic information system (GIS) fire data
provided by the Bureau of Land Management (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 2015), 21 percent of the total management area has burned since
2000 (Hardy 2016, 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 October 8, 2009, final listing rule (74 FR 52014), 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 reanalyze 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 Lepidium papilliferum as recognized in
[[Page 55063]]
the IFWIS database, and does not represent the much larger geographic
range of the species, which can be thought of as the ``range map'' or
broad outer boundary encompassing all known occurrences of L.
papilliferum). For the purposes of this rulemaking, we used GIS to
calculate the area of known EOs using the most current EO data,
resulting in a more accurate area equaling 15,825 ac (6,404 ha).
Since the 2009 listing, wildfires have continued to affect Lepidium
papilliferum EOs and the surrounding habitat. Data collected from 2008
to 2014 indicates there were 25 additional fires that burned
approximately 1,834 ac (742 ha) of L. papilliferum EOs, with
approximately 864 ac (350 ha) located in areas that had not previously
burned (Hardy 2015, 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 59 years
(1957-2015), the perimeters of 147 wildfires occurring within the known
range of L. papilliferum have burned approximately 8,348 ac (3,378 ha),
or 53 percent of the total L. papilliferum EO area rangewide (Hardy
2016, in litt.).
We recognize that caution should be used in interpreting geospatial
information as it represents relatively coarse vegetation information,
and 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 October 8, 2009, final listing rule (74 FR 52014), is likely
facilitating the continued spread of invasive plant species and Owyhee
harvester ant colony expansion, all of which negatively affect Lepidium
papilliferum and its habitat.
In addition to the geospatial information, the most recent general
landscape assessment conducted during HIP transect monitoring revealed
that the landscape within 500 m (0.31 mi) of 54 transects (70 percent)
had lost cover of native Artemisia tridentata (sagebrush) due to fire
(IDFG 2013, p. 9).
The understanding of impacts from climate change has not changed
substantially since publication of the 2009 final listing rule (74 FR
52014, October 8, 2009). Climate change models project a likely
increase in wildfire frequency within the semiarid Great Basin region
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; Miller et al. 2011, pp. 179-184). Although there is not yet any
detectable upward trend in annual area burned, the findings of Baker
(2013, pp. 15-17) suggest that current fire rotations in the Snake
River Plain may be too short to allow recovery of sagebrush after fire.
Baker (2013, p. 17) attributes this to the cheatgrass-fire cycle, and
notes that fires on the Snake River Plain are becoming larger, due to
the extensive Bromus tectorum invasion in that region.
Warmer temperatures and greater concentrations of atmospheric
carbon dioxide create conditions favorable to the growth of B.
tectorum, thus continuing the positive feedback cycle between the
invasive annual grass and fire frequency that poses a threat that is
having a significant negative 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 and current
trends in the climate system--increasing temperature, increasing
duration and intensity of drought, decreasing snow-pack, increasing
heavy precipitation events, and other extreme weather--are likely to
continue through the 21st century (IPCC 2007, p. 45; IPCC 2013, p. 7),
we anticipate that these effects will continue and likely increase in
the future. See Climate Change under Factor E, in the October 8, 2009,
final listing rule (74 FR 52014) for a more detailed discussion of
climate change.
To determine the rate at which wildfire is impacting Lepidium
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 59 years
(1957 to 2015), the perimeters of 149 wildfires occurring within the
known range of L. papilliferum have burned approximately 8,348 ac
(3,378 ha), or 53 percent of the total L. papilliferum EO area
rangewide (Hardy 2016, in litt.). Thus the annual mean habitat impact
due to wildfire over the past 59 years is estimated at 141 acres per
year (ac/yr) (57 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.
At present, we estimate there are approximately 7,477 ac (3,025 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 least at the recently observed rate of 141 ac/
yr (57 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 59 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 2015, in litt.). Thus, 50 years
represents a minimum estimate of the foreseeable future for the threat
of wildfire. 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 an estimated 43 to 48 years
(Figure 1). Or, to look at it another way, within an estimated 43 to 48
years, only 10 to 20 percent of currently unburned L. papilliferum
habitat will likely remain unaffected by wildfire.
As discussed above (and in more detail below in the Summary of
Factors Affecting the Species), when Lepidium papilliferum reaches this
threshold, at which 80 to 90 percent of its present remaining unburned
habitat has become negatively affected by wildfire and associated
threats, then we conservatively conclude that the species will become
in danger of extinction (will meet the definition of an endangered
species). Thus, because we can reasonably predict that L. papilliferum
is likely to become an endangered species in, at the most,
approximately 43 to 48 years, we
[[Page 55064]]
consider that projection to occur within the foreseeable future, which
is at least 50 years based on extrapolation of the rate at which we
expect the primary effect of wildfire will 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).
This is a conservative estimate because threats to the species other
than wildfire and invasive species (e.g., development) are likely to
negatively affect at least some of the habitat that remains unburned
within the next 50 years, reducing or eliminating the ability of that
unburned habitat to support the species' life-cycle needs.
Consequently, the approximation of 43 to 48 years until only 10 to 20
percent of the species' habitat remains unburned is likely an
overestimate of the time it will take for the species to become
endangered.
We recognize that our model (Figure 1; USFWS 2015, in litt.) is
relatively simple, assuming, for example, that unburned habitats have
similar wildfire vulnerability, and that the impacts to habitat from
wildfire will continue to occur at a constant rate over time, when in
reality some habitats may differ in their resistance to wildfire and
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 Lepidium papilliferum is likely to become
endangered, we believe this projection uses 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.
[GRAPHIC] [TIFF OMITTED] TR17AU16.000
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 unburned L. papilliferum habitat will be affected by
wildfire within approximately the next 43 to 48 years. Because we can
reliably predict the threats of wildfire, and, by association,
invasive, nonnative plant species, through at least the next 50 years,
the estimated time period of 43 to 48 years in which we predict the
species will become endangered 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
[[Page 55065]]
the demonstrated positive feedback cycle between these factors
(Whisenant 1990, p. 4; D'Antonio and Vitousek 1992, pp. 73, 75; Brooks
and Pyke 2001, p. 5; Brooks et al. 2004, p. 678; Balch et al. 2013, pp.
177-179). 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 that 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., 2009 p. 5). As summarized in
our 2009 final listing rule (74 FR 52014, p. 52032), 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.
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 B. 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 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; IDFG 2013, p. 11). 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, similar to 2008 HIP monitoring results,
which were described in the 2009 final listing rule (74 FR 52014,
October 8, 2009), the 2012 results (which represent the most recent
published HIP data), revealed that all 80 HIP transects monitored
within 54 EOs had some nonnative, unseeded plant cover (Colket 2009,
Table 4, pp. 37-49; IDFG 2013, Table 4, pp. 29-30). The 2008 (Colket
2009, Table 4, pp. 37-49) HIP monitoring results also revealed that, of
the 80 HIP transects, 18 transects had some level of nonnative, seeded
plant cover (similar comparisons for nonnative, seeded plant cover was
not presented in the 2013 HIP monitoring report). In addition,
monitoring of HIP transects rangewide indicated that nonnative plant
cover is continuing to increase at a relatively rapid pace. 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 5
percent or more increase in nonnative cover since establishment of the
transects has significantly increased from 40 transects in 2009 to 61
transects in 2011 (IDFG 2012, pp. 12-13). In the 2013 report (IDFG p.
11), this number was down slightly with 52 transects documenting a 5
percent or more increase in nonnative cover; however, 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 listing rule (74
FR 52014, October 8,
[[Page 55066]]
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, entire; Weltz et al. 2014, p. 44A). 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 show 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 that 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 unburned L. 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, we
can reliably predict the trend of the associated primary threat of
invasive, nonnative plant species over at least the next 50 years.
Therefore, this threat will also cause the species to become in danger
of extinction in approximately 43 to 48 years, which 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 (74 FR 52014, October 8, 2009), 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.
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 in
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, October 8, 2009), we
were aware of 10 approved or proposed development projects planned for
these regions (State of Idaho 2008, in litt. 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 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
(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)).
While conservation measures incorporated into the proposed project
design are expected to avoid or minimize some adverse effects to
Lepidium papilliferum, not all adverse effects will be avoided (USFWS,
2013 entire) and portions of the project may occur in unburned habitat.
Though these developments and associated infrastructure projects
have not yet been constructed, they are at least at the proposed stage
and, thus, foreseeable. 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
[[Page 55067]]
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. However, any development that does occur
in unburned habitat will contribute to shortening that timeframe.
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 the plant's 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 already 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 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
unburned L. papilliferum habitat will be affected within an estimated
43 to 48 years, which is within the foreseeable future of 50 years for
the primary threats of wildfire and invasive, nonnative plant species.
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, pp. 14-15)
validated the results from Robertson and White (2009), and went further
by showing that seed loss through Owyhee harvester ant predation
remains high, with a median of 92 percent, even when considering total
seed output for individual plants. In one of their paired samples, they
found 4,861 seeds beneath the control plant and only 301 seeds beneath
the treatment plant (exposed to ants), while in another they found
2,328 seeds beneath the control plant, but only 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 thousands of seeds are produced.
Owyhee harvester ants are a native species, common in open grassy
areas throughout southwest Idaho, including areas occupied by Lepidium
papilliferum. Owyhee harvester ant colony expansion into areas adjacent
to occupied slickspots, and the associated increase in seed predation,
has the potential to significantly affect L. papilliferum recruitment
and the replenishment of the seed bank, which could in turn affect the
long-term viability of L. papilliferum. Due to the increased occurrence
of wildfire and the associated replacement of sagebrush by grasses
within L. papilliferum habitat, a study was initiated in 2010 to
monitor Owyhee harvester ant colony dynamics and to document if, and at
what rate, Owyhee harvester ants are increasingly colonizing areas
occupied by L. papilliferum. In 2010, researchers recorded 843
harvester ant colonies across 15 study sites, which coincided with L.
papilliferum EOs. Results from 2012 demonstrated that, only 2 years
later, that number had increased to 956 colonies. However, data
collected in 2014, following an extended period of drought in the
spring and summer of 2013, showed colony numbers had declined to 878
(Robertson 2015, p. 2). Robertson concluded that the lack of consistent
and substantial increases in colony numbers over the 5 years of
monitoring at these sites, as well as the strong relationship between
ant colony density and resources available at the sites, suggests that
the sites chosen for this study were already at or near carrying
capacities (Robertson 2015, p. 11). Robertson notes, however, that
carrying capacity is a function of resource availability, and changes
in resources likely will impact future colony recruitment and survival
(Robertson 2015, p. 11).
Owyhee harvester ant research within Lepidium papilliferum habitat
is ongoing. We lack enough data to develop a foreseeable future
estimate for this threat at this time, although we
[[Page 55068]]
expect the threat to increase as the number of ant colonies continues
to grow as a result of more wildfires 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
(74 FR 52014, October 8, 2009), effective controls on a large enough
scale 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.
The Conservation Agreement (CA) for Lepidium papilliferum between
the BLM and the Service was updated in 2014 (USBLM and USFWS 2014,
entire). Significant changes to that CA included allowing for livestock
trailing through EOs, proposed critical habitat, or occupied habitat on
existing roads or historic routes within the BLM's Four Rivers Field
Office area. It also added requirements to avoid use of potentially
invasive nonnative plant species such as Bassia prostrata (forage
kochia) in emergency stabilization and rehabilitation treatments and
fuel breaks within 0.8 km (1.5 mi) of EOs, as well as to require
rigorous monitoring and subsequent removal of B. prostrata if it
establishes outside of seeded areas. The 2014 CA also clarified
invasive nonnative plant species control requirements associated with
land use permits, leases, and rights-of-way that overlap EOs. While
these changes strengthen and clarify the CA, they are not sufficient to
offset the threats to the species to the point that it is not likely to
become an endangered species within the foreseeable future.
In addition to those conservation measures evaluated in the 2009
final listing rule (74 FR 52014, October 8, 2009) and those mentioned
above, 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. 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. The Mountain Home
RFPA, which was recently expanded in 2015 to include additional L.
papilliferum EOs, also covers a portion 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, in litt.).
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.).
The Service acknowledges that RFPAs are a positive conservation
step for sagebrush-steppe habitat, and we commend these efforts to
protect habitats against wildfires in those areas where RFPAs have been
designated; the Service has provided funding to help support RFPAs. One
of the primary benefits of the RFPAs, as identified by the Idaho
Department of Lands, is the protection of greater sage-grouse habitat.
Consequently, most of the currently designated RFPAs are associated
with greater sage-grouse habitat, and only approximately 34 percent of
Lepidium papilliferum EOs are currently located inside of any
designated RFPA boundaries. While benefits from first response to
wildland fires within sage-grouse habitats may also extend to L.
papilliferum habitat in those areas where the RFPA boundaries overlap
(34 percent), a majority (66 percent) of currently occupied L.
papilliferum habitat does not directly benefit from the sage-grouse-
associated wildfire protection measures of the RFPAs. Furthermore,
RFPAs within the range of L. papilliferum have been in effect for only
1 to 3 years and, as such, have not yet demonstrated their ability to
address the increased frequency or extent of wildfire across the range
of L. papilliferum.
Although 34 percent of Lepidium papilliferum habitat is within RFPA
boundaries, these areas are at a high risk of large catastrophic
wildfires based on ecological conditions (Chambers et al. 2014,
entire). This higher risk was analyzed in the resilience and resistance
(R&R) matrix developed by the Western Association of Fish and Wildlife
Agencies (WAFWA), in which they classified different ecological soil
and moisture regimes into categories (low, moderate, and high) of
resilience to disturbance and resistance to invasion by annual grasses
(Chambers et al. 2014, entire). Of the areas occupied by L.
papilliferum, 99 percent occur within areas classified as low R&R;
these low R&R areas tend to be prone to invasion by cheatgrass and are
at a higher risk of large catastrophic wildfires, thus the low R&R of
these areas is a challenge to wildfire management and post-fire
restoration.
In addition, RFPAs do not address the threat from existing invasive
nonnative plant species, the second of the two primary threats
identified for the species, and the conservation need for sagebrush-
steppe habitat restoration. Our analysis of the conditions for Lepidium
papilliferum over the foreseeable future takes into account the
synergistic and cumulative effects of increased wildfire, invasive
nonnative plants, development, and other threat factors that will
affect the remaining L. papilliferum habitats.
Effective management of wildfire as a threat is often dependent on
the timeliness of initial response efforts; therefore, while RFPAs have
not yet shown to be sufficiently 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. We continue to
support expanding and increasing the capacity of RFPAs, and encourage
greater wildfire protection measures and sagebrush-steppe restoration
in other areas with L. papilliferum habitats. However, the combination
of adequately addressing the two primary threats of wildfires and
invasive nonnative plant species will be necessary for long-term
conservation of L. papilliferum.
[[Page 55069]]
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 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, October
8, 2009)), 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 synergistic and
cumulative effects of increased wildfire, invasive nonnative plants,
development, and other threat factors, including climate change, will
affect the remaining L. papilliferum habitats such that the species
would persist in only a small number of isolated EOs, with 80 to 90
percent of its remaining unburned habitat impacted by these threats,
and most likely with small populations fragmented and isolated from
other remnant populations. At the point at which these conditions are
met, we would consider the species to then be in danger of extinction.
Given the wildfire history that has affected approximately 53
percent of the L. papilliferum habitat over the last 59 years (1957-
2015), combined with the ongoing, expansive infestation of invasive
nonnative 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 across the range of L.
papilliferum have been developed, these threats to L. papilliferum can
reasonably be anticipated to continue for at least 50 years, and
perhaps 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 become in danger of extinction
within the next 43 to 48 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).
Summary of Changes From the Proposed Reconsideration of the Final Rule
Based upon our review of the public comments and new relevant
information that has become available since the publication of our
proposed reconsideration of the final rule (79 FR 8416; February 12,
2014), we have reevaluated and made changes to the content of that
document as appropriate. Other than minor clarifications and
incorporation of additional information on the species' biology and
populations, this determination differs from the proposed
reconsideration document in the following ways:
(1) The State of Idaho disagreed with the Service's assertion that
RFPAs have not yet demonstrated their ability to address the increased
frequency of wildfire across the range of Lepidium papilliferum. The
State commented that increased fire response and suppression in L.
papilliferum habitat would undoubtedly alter the point at which the
plant would become endangered, and suggested our determination was no
longer valid because 2013 RFPA data was not factored into the Service's
foreseeable future analysis.
To address the State's concern, we re-calculated our foreseeable
future estimate (the rate at which wildfire is impacting Lepidium
papilliferum habitats), to include wildfire data from 2013 to 2015.
Therefore, instead of using the past 56 years of data (1957 to 2012),
we used the past 59 years of data (1957 to 2015) to assess how far into
the future we can reasonably predict the likely effects of wildfire on
the species. In the proposed reconsideration of the final rule, we
stated that we used 55 years of wildfire data based on a time period
between 1957 and 2012; we added the number of years incorrectly and
have corrected the number for this time period to be 56 years.
In our proposed reconsideration of the final rule (79 FR 8416;
February 12, 2014), we reported that, using the past 56 years of data,
the perimeters of 126 wildfires occurring within the known range of
Lepidium papilliferum burned approximately 8,324 ac (3,369 ha), or 53
percent of the total L. papilliferum EO area rangewide (Hardy 2013, in
litt.). As reported in this final rule, over the past 59 years (1957 to
2015), the perimeters of 149 wildfires occurring within the known range
of L. papilliferum have burned approximately 8,348 ac (3,378 ha), which
is 53 percent of the total L. papilliferum EO area rangewide (Hardy
2016, in litt.). Thus, the annual mean habitat impact due to wildfire
changed from 150 acres per year (ac/yr) (61 ha/yr) over a 56-year time
period to 141 acres per year (ac/yr) (57 ha/yr) over the past 59 years.
To be consistent, we also used the latest IFWIS EO data (January
2015) to calculate the Lepidium papilliferum habitat remaining that has
not yet been negatively impacted by wildfire. In our proposed
reconsideration of the final rule (79 FR 8416, February 12, 2014), we
reported that there were 87 EOs currently identified in the IFWIS
database (compared to 80 reported in 2009). However, we should have
reported that there were 88 total EOs. Since the proposed
reconsideration document was published, 3 more EOs have been identified
in the IFWIS database, bringing the total to 91 extant L. papilliferum
EOs. Using the latest EO data changed our estimate from approximately
7,567 ac (3,064 ha) to 7,479 ac (3,026 ha) of Lepidium papilliferum
habitat remaining that has not yet been affected by wildfire.
Based on the observed rates of habitat impact due to wildfire using
this longer time range and updated EO information, we can reliably
predict that approximately 80 to 90 percent of the remaining Lepidium
papilliferum habitat not yet impacted by wildfire will be affected
within approximately the next 43 to 48 years, which is a change and
refinement from the estimate of 36 to 47 years in the proposed
reconsideration of the final rule (79 FR 8416, February 12, 2014).
Considering the most recent wildfire data (2013 to 2015), as
requested by the State, did not alter our conclusion that Lepidium
papilliferum is likely to become in danger of extinction within the
foreseeable future. Therefore, we still conclude that the RFPAs have
not yet demonstrated their ability to address the increased frequency
of wildfire throughout the range of L. papilliferum. In addition, RFPAs
do not address the threat from existing invasive nonnative plant
species, the second of the two primary threats identified for the
species, and the conservation need for sagebrush-steppe habitat
restoration.
Based on the changes discussed above, we refined our graph in
Figure 1 to reflect this new information.
(2) We received comments regarding our use of a 5-year dataset that
resulted in the upper-bound calculation of 170 ac (69 ha) of habitat
burned per year presented in the proposed reconsideration of the final
rule (79 FR 8416, February 12, 2014). Some commenters stated that this
short
[[Page 55070]]
timeframe is arbitrary, as it is based on a small sample size, and
suggested that it should not be relied upon. We agree with the
commenters that our 5-year estimate is too short a timeframe to
accurately reflect the average impact of wildfire. Therefore, we
removed this upper-bound estimate from this final rule. However, we
believe our long-term estimate of an average future rate of 141 ac (57
ha) of habitat burned per year (based on the last 59 years) is a
reliable and reasonable estimate and represents the best available
data.
(3) In the Background and New Information section of the preamble,
we corrected our HIP plant count numbers and some HIP data analysis
based on new information received.
(4) In the Factors Affecting the Species section of the preamble,
we updated information in the Owyhee Harvester Ant section based on new
research results received.
(5) In the Factors Affecting the Species section of the preamble,
Altered Wildfire Regime section, we updated the HIP transect data
information to reflect the most recent results of the 2012 HIP
monitoring. Based on a public comment, we also updated this section to
include more recent climate change information, as well as more
recently described fire-return intervals.
(6) In response to a comment from the State of Idaho, we expanded
our discussion in the Consideration of Conservation Measures section of
the preamble to include additional information regarding RFPAs.
Summary of Comments and Recommendations
In our proposed reconsideration of the final rule published on
February 12, 2014 (79 FR 8416), and in the document reopening the
comment period (April 21, 2014, 79 FR 22076), we requested that all
interested parties submit written comments on our proposed
interpretation of the foreseeable future and reinstatement of
threatened status for Lepidium papilliferum. We contacted appropriate
Federal and State agencies, scientific experts and organizations, and
other interested parties, and invited them to comment on our proposed
reconsideration of the final rule. We did not receive any requests for
a public hearing. During these comment periods we received 11 comment
letters. We appreciate all public comments submitted and their
contributions to the improvement of the content and accuracy of this
document.
We received several comments related to the prior listing decision
published on October 8, 2009, such as comments regarding the taxonomy
of this species, population trend, and our analysis of threats as
described in the 2009 final listing rule (74 FR 52014). We also
received comments related to other issues that are outside the scope of
this rulemaking, such as comments related to the National Environmental
Policy Act. For the purposes of this rulemaking, we considered only
comments directly relevant to the proposed reconsideration of the final
rule for Lepidium papilliferum, as published on February 12, 2014 (79
FR 8416). Comments that did not provide new information or that were
related to issues outside the scope of this rulemaking are not
addressed here.
All substantive information provided has either been incorporated
directly into this final rule or addressed below.
Federal Agency Comments
We did not receive any comments from Federal agencies.
Comments From the State of Idaho
Comments received from the State regarding our proposed
reconsideration of the final rule for Lepidium papilliferum (79 FR
8416, February 12, 2014) are addressed below, and also in a written
response to the State of Idaho per section 4(i) of the Act that states,
``the Secretary shall submit to the State agency a written
justification for his failure to adopt regulations consistent with the
agency's comments or petition.''
(1) Comment: The State pointed out that in the proposed
reconsideration of the final rule (79 FR 8416, February 12, 2014), the
foreseeable future is determined to be ``at least 50 years''; however,
the phrase ``at least'' is not quantifiable nor does it provide any
sideboards for determining what number of years after 50 would be
considered foreseeable. The State argued that, for the purpose of
analyzing whether Lepidium papilliferum's risk of endangerment is
within the foreseeable future, 50 years is the threshold since ``at
least'' creates an equivocal timeframe.
Our Response: We consider the foreseeable future to be that period
of time within which we can make a reasonable prediction about the
future status of the species, based on the nature of the threats, how
the species is affected by those threats, and how those relevant
threats operate over time. In this case, one of the primary threats is
wildfire, and we can reasonably predict how that threat will operate
over time based on 59 years of fire data and the observed effects of
wildfire on Lepidium papilliferum. We defined the timeframe for when L.
papilliferum is likely to become in danger of extinction (endangered)
as that point in the future when only 10 to 20 percent of its
remaining, as-yet-unburned habitat persists unaffected by wildfire,
because we conclude that under those conditions the remaining habitat
will be too small and fragmented to provide for the persistence of the
species, such that the species will become in danger of extinction at
that time. Because L. papilliferum has not yet reached that point, we
can conclude that it is not currently in danger of extinction (i.e.,
not endangered). However, based on the best available data, we have
reasonably projected that the species is likely to reach that point
(when it will become in danger of extinction) in approximately 43 to 48
years.
Because we can reasonably predict the time period in the future at
which the species is likely to become endangered (as opposed to merely
speculating as to when it might occur), that point in time is by
definition within the foreseeable future. In turn, because we can
reasonably and reliably predict that this rate will then continue into
the future at least until the point when no unburned habitat for the
species will likely remain, which is approximately 54 years (Figure 1;
USFWS 2016, in litt.), 50 years represents a reasonable minimum
estimate of the foreseeable future. This led to our description of the
timeframe for the foreseeable future being ``at least'' 50 years
(simply rounding down from 54 years). Perhaps a better way of
explaining it is that we can reasonably predict the transition from
threatened to endangered status to occur within the next 50 years. The
number of years beyond 50 that would be considered foreseeable is a
moot point, since we have reasonably concluded that L. papilliferum
will become in danger of extinction prior to that time. We used the
term ``at least'' in an attempt to communicate the uncertainty around
the timeframe of 50 years, as we believe that setting a single endpoint
beyond that timeframe implies a degree of precision in defining the
foreseeable future that simply cannot be achieved with the best
available data.
(2) Comment: The State suggested that the Service did not follow
the District Court's guidance on appropriately defining Lepidium
papilliferum's foreseeable future, citing the following guidance from
the Court: ``remand may very well require additional fact-finding; the
Service may decide that an expert panel needs to be reconvened to offer
an opinion on what constitutes foreseeable future. . ..'' The State
commented that the Service chose to forego convening an expert panel
and
[[Page 55071]]
unilaterally concluded the foreseeable future to be at least 50 years,
and further predicted that the species would likely become endangered
in the next 36 to 47 years based on current and historical trend data
related to the major threats facing L. papilliferum, namely wildfire.
While the State agreed that this approach constitutes a valid
viewpoint, they felt that prior agency precedent related to L.
papilliferum indicates that this represents only one opinion in a field
where experts' opinions have varied greatly. They recommended the
Service exercise its discretionary authority to extend the proposed
listing determination by 6 months to convene a diverse panel of experts
in order to more accurately assess when the scientific community
believes the species is likely to become endangered. Several other
commenters recommended that, in order to properly analyze the impacts
of beneficial projects, such as Rangeland Fire Protection Associations
(RFPAs), the Paradigm Fuel Break Project, and State plans aimed at fire
prevention (such as the Idaho and Southern Montana Greater Sage-Grouse
Draft Land Use Plan Amendment and Environmental Impact Statement), we
should convene an expert panel, including fire and fuels specialists,
to determine future wildfire risk to L. papilliferum and analyze the
potential benefits of these activities on the longevity of the species,
and then reassess the foreseeable future.
Our Response: In accordance with section 4(b)(1)(A) of the Act, our
determination is based solely on the best scientific and commercial
data available. We recognize the potential value in convening expert
panels to assist in our status reviews, especially for issues where
significant uncertainty exists. We did not find that to be the
situation here. We based our definition of the foreseeable future
specific to Lepidium papilliferum on the best scientific data available
to us regarding the observed rate at which the primary threats are
acting on the species. This is a quantitative estimate and not a
qualitative opinion as the State suggests. With the availability of
this quantitative estimate to frame the foreseeable future, we did not
find that convening an expert panel for the purpose of soliciting
qualitative opinions was necessary. Please also see our discussion of
the outcome of earlier expert panels under ``Foreseeable Future,''
above.
(3) Comment: The State and the Idaho State Department of
Agriculture (ISDA) commented that the proposed reconsideration of the
final rule (79 FR 8416, February 12, 2014) does not adequately analyze
the RFPAs. The State suggested that a large portion of Lepidium
papilliferum habitat exists on rangeland currently covered by RFPAs.
The State also disagreed with the Service's assertion that RFPAs have
not yet demonstrated their ability to address the increased frequency
of wildfire within the range of L. papilliferum. They asserted that,
after just 2 years in existence, the RFPAs have proven successful,
offering that the Three Creek and Mountain Home RFPAs, both established
within L. papilliferum habitat, provided initial attack and/or
assistance on numerous wildfires during the 2013 wildfire season. They
added that, on many of these fires, the quick actions taken by the
RFPAs directly prevented additional acres from burning, which likely
would have included occurrences of L. papilliferum.
The State acknowledged that it is impossible to quantify the number
of acres saved due to the implementation of RFPAs, but felt the
information from 2013 illustrates the tangible progress the RFPAs are
making across their range. They contended that, since 2013 RFPA data
was not factored into the Service's foreseeable future analysis, the
determination is no longer valid, arguing that increased fire response
and suppression in L. papilliferum habitat would undoubtedly alter the
point at which the plant would become endangered. They added that, in
order to adequately support this determination, the Service would have
to provide information describing how recent wildfire reduction
measures within the species' range would not affect L. papilliferum's
timeline for becoming endangered. Several additional commenters also
commented that the proposed reconsideration of the final rule (79 FR
8416, February 12, 2014) did not adequately analyze the RFPAs and the
associated positive effects they have had in reducing the size of
wildfires in L. papilliferum habitats. One of these commenters stated
that currently there are 5 RFPAs comprising more than 250 private
citizens who are properly trained and equipped to provide initial
attack on over 4 million acres of private, State, and Federal land and
6 more RFPAs that are in the process of formation and training to be
ready for the 2015 wildfire season.
Our Response: The Service acknowledges that RFPAs are a positive
conservation step for sagebrush-steppe habitat, and we commend these
efforts to protect habitats against wildfires in those areas where
RFPAs have been designated. One of the primary benefits of the RFPAs,
as identified by the Idaho Department of Lands, is for the protection
of greater sage-grouse habitat. Consequently, most of the currently
designated RFPAs are associated with greater sage-grouse habitat.
However, only approximately 34 percent of L. papilliferum EOs are
currently located inside of any designated RFPA boundaries. While
benefits from first response to wildland fires within sage-grouse
habitats may also extend to L. papilliferum habitat in those areas
where the RFPA boundaries overlap (34 percent), a majority (66 percent)
of currently occupied L. papilliferum habitat does not directly benefit
from the sage-grouse-associated wildfire protection measures of the
RFPAs. Furthermore, RFPAs within the range of L. papilliferum have only
been in effect for 1 to 3 years and, as such, have not yet demonstrated
their ability to address the increased frequency or extent of wildfire
across the range of Lepidium papilliferum.
Although 34 percent of Lepidium papilliferum habitat is within RFPA
boundaries, these areas are at a high risk of large catastrophic
wildfires based on ecological conditions (Chambers et al. 2014,
entire). This higher risk was analyzed in the R&R matrix developed by
the WAFWA, in which they classified different ecological soil and
moisture regimes into categories (low, moderate, and high) of
resilience to disturbance and resistance to invasion by annual grasses
(Chambers et al. 2014, entire). Of the areas occupied by L.
papilliferum, 99 percent occur within areas classified as low R&R;
these low R&R areas tend to be prone to invasion by cheatgrass and are
at a higher risk of large catastrophic wildfires, thus the low R&R of
these areas is a challenge to wildfire management, particularly for
catastrophic wildfires.
Further, as the State pointed out, it is impossible to quantify the
number of acres saved due to implementation of the RFPAs. We did
consider, in response to the State's request, whether it was
appropriate to evaluate the potential effectiveness of RFPAs based on
wildfire data since their date of establishment, which varies from 2013
to 2015. However, relying on 1 to 3 years of wildfire data (the short
duration of time that RFPAs have been in effect) is too small a sample
size to determine if there is a long-term change in the rate of number
of acres burned as a result of RFPAs.
However, we have recalculated the foreseeable future by adding 2013
thru 2015 wildfire data and have updated this information in the
Factors Affecting the Species section of this final rule. Based on the
observed rates of habitat
[[Page 55072]]
impact due to wildfire using this longer time range and updated EO
information, we can reliably predict that approximately 80 to 90
percent of the remaining Lepidium papilliferum habitat not yet impacted
by wildfire will be affected within an estimated 43 to 48 years, which
is a change from the estimate of 36 to 47 years in our proposed
reconsideration of the final rule (79 FR 8416, February 12, 2014).
Therefore, considering the most recent wildfire data (2013 to 2015), as
requested by the State, did not alter our conclusion that L.
papilliferum is likely to become in danger of extinction within the
foreseeable future.
In addition, our analysis of the foreseeable future takes into
account the synergistic and cumulative effects of increased wildfire,
invasive nonnative plants, development, and other threat factors that
will affect the remaining L. papilliferum habitats. While RFPAs have
the potential to influence the overall effect of wildfires, they do not
address the threat from existing invasive nonnative plant species, the
second of two primary threats identified for the species, or the
conservation need for sagebrush-steppe habitat restoration.
Therefore, while we view the formation of RFPAs as a positive
conservation step for sagebrush-steppe habitat, RFPAs have not yet
shown to be sufficiently 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.
(4) Comment: The State and the ISDA commented that the proposed
reconsideration of the final rule (79 FR 8416, February 12, 2014) did
not adequately address the benefits derived from the Paradigm Fuel
Break Project. The State cited one of the objectives of the Paradigm
Project, to ``[p]rotect existing native shrub habitat for slickspot
peppergrass and greater sage-grouse, that would reduce the likelihood
of large-scale wildfire.'' They contended that, while a record of
decision for the Paradigm Project has not been issued, the project
still must be considered by the Service when analyzing the future
threat from wildfire since this project will have an appreciable effect
on the number and magnitude of fires within the project area and
associated Lepidium papilliferum habitat. Likewise, seven additional
commenters questioned why we did not analyze the effects the Paradigm
Fuel Break Project will have on the foreseeable future for L.
papilliferum. Five of these commenters suggested that the proposed
reconsideration of the final rule (79 FR 8416, February 12, 2014) did
not adequately address the benefits derived from the Paradigm Project.
Several of these commenters stated that this project will slow the
spread of wildfires and assist in fire suppression efforts. Several
commenters thought this would greatly extend or shift the foreseeable
future or entirely preclude the need to consider ESA listing for the
species. One commenter stated that it is not unreasonable to expect
this project will be implemented within the Service's 50-year timeline.
Conversely, two of the commenters stated that this project will
negatively impact L. papilliferum by introducing invasive nonnative
plants, such as Bassia prostrata, as fuel breaks across a large amount
of L. papilliferum habitat. One of these commenters stated that
existing B. prostrata seedings have already invaded L. papilliferum
habitat. The other added that, given the competitiveness of B.
prostrata and a lack of proper planning, the L. papilliferum habitat
near fuel breaks will soon be invaded by B. prostrata, and L.
papilliferum will become extinct.
Our Response: We are aware of the potential future long-term
benefits that may occur associated with compartmentalization of future
wildfires in this area. We also acknowledge, as discussed in detail
under Factor A of the 2009 final listing rule (74 FR 52037-52040,
October 8, 2009), the risks associated with seeded nonnative invasive
plant species like Bassia prostrata, in areas that support Lepidium
papilliferum. As such, we continue to encourage our partners to
minimize any potential adverse impacts of proposed fuel break projects
in the vicinity of L. papilliferum habitat. For example, guidance on
how to avoid or minimize potential effects of fuels management projects
on L. papilliferum and its habitat has been provided in the 2014
Conservation Agreement (CA) for L. papilliferum between BLM and the
Service, and we anticipate the BLM will adhere to the CA. Subsequent to
the publication of our proposed reconsideration of the final rule, the
Service coordinated with the BLM regarding strategies to avoid or
minimize potential effects of the proposed Paradigm Project on L.
papilliferum prior to the BLM signing the Decision Record for this
project on April 24, 2015. However, the Paradigm Fuel Break Project
only encompasses about 18 percent of the total area of L. papilliferum
habitat rangewide.
In addition, the Service is not aware of any long-term data
regarding suppression effectiveness of fuel breaks in areas of low R&R,
which is where more than 99 percent of L. papilleriferum occurs.
Moreover, our analysis of foreseeable future takes into account the
synergistic and cumulative effects of increased wildfire, invasive
nonnative plants, development, and other threat factors that will
affect the remaining L. papilliferum habitats. While the Paradigm
Project has the potential to influence the overall effect of wildfires
within a limited area of L. papilliferum habitat, it does not currently
address the threat from existing invasive nonnative plant species, one
of two primary threats identified for the species, or the conservation
need for sagebrush-steppe habitat restoration. Considering all of these
factors, it is unknown if the Paradigm Project will significantly alter
the rangewide foreseeability of threats to this species.
(5) Comment: The State and the ISDA commented that the Service did
not consider the benefits to Lepidium papilliferum associated with
recent sage-grouse planning efforts in Idaho. They pointed out that, as
with L. papilliferum, the primary threats to sage-grouse habitat are
wildfires and invasive species, and the Idaho and Southwest Montana
Subregional sage-grouse planning effort includes a wildfire management
component that focuses efforts on fire prevention, suppression, and
habitat restoration. The State suggested that some of the L.
papilliferum habitat will incidentally benefit from the protections
afforded to sage-grouse through this strategy, and given the overlap of
sage-grouse and L. papilliferum habitat, these planning efforts would
have a positive influence on L. papilliferum and its habitat. Five
additional commenters also had similar comments. Several commenters
questioned whether the Service has taken into consideration other State
plans aimed at fire prevention and habitat preservation, like the Idaho
and Southwestern Montana Greater Sage-Grouse Draft Land Use Plan
Amendment and Environmental Impact Statement. One commenter stated that
the two primary threats to L. papilliferum are also the primary threats
to the greater sage-grouse and the proposed reconsideration of the
final rule does not consider any of the organizations and tools that
have been created to protect against those threats, such as the
amendments to BLM Resource Management Plans (RMPs). This commenter
argued that factoring all of these benefits in will alter the
foreseeable future.
Our Response: The Service recognizes the future potential benefits
to sagebrush-steppe habitats associated with the BLM's efforts to
conserve greater sage-grouse through amendment of existing land use
plans, including
[[Page 55073]]
increased measures to limit wildfire impacts to sagebrush steppe
habitats and revegetation efforts. We considered several greater sage-
grouse conservation efforts that may provide benefits to Lepidium
papilliferum habitat, including the land use plan amendments, the Fire
and Invasives Team (FIAT) planning areas, and activities identified in
response to Secretarial Order (SO) 3336.
Less than 21 percent of the known area of Lepidium papilliferum
occurrences overlap with greater sage-grouse habitats where the BLM
will implement land use plan amendment conservation measures (including
habitat restoration and fire suppression actions). Furthermore,
conservation measures within the BLM land use plan amendment for sage-
grouse are largely directed at Priority and Important Habitat
Management Areas. Only 17 percent of the known L. papilliferum
occurrences overlap with designated Important Habitat Management Areas
(IHMA), 4 percent occur in General Habitat Management Areas, and none
of the remaining 83 percent of known L. papilliferum occurrences are
located in Priority Habitat Management Areas.
Although Lepidium papilliferum does occur in areas designated as
IHMA, the actions identified in the land use management plan amendments
were prioritized by the FIAT and are focused on providing benefits to
sage-grouse. Projects were prioritized to address breeding habitat for
sage-grouse within areas that are the most resistant and resilient to
wildfire. Only a very small area, approximately 1 percent of Lepidium
papilliferum EO acres, occurs in prioritized areas. The likelihood of
projects occurring in L. papilliferum EOs is very low and, therefore,
unlikely to provide a significant benefit to the species.
The SO 3336 commits to large-scale conservation to address fire and
invasive nonnative plants; however, the initial focus is on sagebrush
ecosystems and sage-grouse habitat. While the SO includes commitments
to ensure restoration will be initiated following wildfire, since
projects are prioritized relying on FIAT prioritization, areas where
Lepidium papilliferum occurs have not been identified as a priority.
Differences exist in the vulnerability of sage-grouse and Lepidium
papilliferum to landscape-level threats such as wildfire and invasive
nonnative plants. Greater sage-grouse are distributed across a much
wider range than L. papilliferum and occur in areas of varying
resilience to disturbance and resistance to invasion by annual grasses.
Due to the wider range and variety of habitat conditions, sage-grouse
rangewide are more capable of absorbing the impact of large wildfires.
Conversely, L. papilliferum has a narrow range, is found overwhelmingly
(99 percent of occurrences) in areas of low resilience to disturbance
and resistance to invasion by annual grasses, and could be heavily
impacted by a single catastrophic wildfire such as the 2015 Soda Fire
in southwestern Idaho and Eastern Oregon, which burned 283,000 ac
(114,000 ha) (National Interagency Fire Center 2015).
Further, sage-grouse conservation efforts have recognized the
difficulty in preventing wildfire and controlling invasive nonnative
plants in areas with low R&R (where 99 percent of Lepidium papilliferum
occurs) and have thus focused on implementing fire prevention and
restoration in areas within habitats with higher R&R.
As such, we do not anticipate the land use plan amendments will
significantly alter the rangewide foreseeability of threats to Lepidium
papilliferum. Based on our evaluation of the present threats to L.
papilliferum, we conclude that the species is likely to become in
danger of extinction within the foreseeable future after accounting for
the Federal land use plan amendments to the RMPs.
(6) Comment: The State asserted that the aforementioned current and
future conservation efforts in Idaho, along with the plant's inherent
lack of predictability, are sufficient to preclude a listing under the
ESA. They added that State management of slickspot peppergrass is
proven to be just as effective as Federal management when dealing with
ubiquitous threats like wildfire and invasive nonnative plant species.
They requested the Service withdraw the proposal to reinstate the
listing of Lepidium papilliferum as threatened under the ESA.
Our Response: In regard to the State's comment about current and
future conservation efforts, please see our responses to comments 3, 4,
and 5, above. Past population trend data were not used in making the
listing decision for Lepidium papilliferum as ``it would be
inappropriate to rely on this model to predict any future population
trajectory for L. papilliferum'' (see pp. 52022-52025 of the final
listing rule, 74 FR 52014; October 8, 2009). We acknowledge that above-
ground numbers of L. papilliferum individuals can fluctuate widely from
one year to the next; however, as stated in our 2009 final listing
rule, we have information indicating a statistically significant
negative association between L. papilliferum abundance and wildfire,
and between L. papilliferum abundance and cover of Bromus tectorum in
the surrounding plant community. Our analysis of the foreseeable future
for the purposes of assessing the status of L. papilliferum relies on
the foreseeability of the relevant threats to the species over time,
and the reasonably anticipated effects of those threats on the species
over time. As described here, we anticipate the continuation or
increase of all of the significant threats to L. 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. As described above,
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. Regarding the comment that State management of L.
papilliferum is just as effective as Federal management, we acknowledge
(as we did in the 2009 listing rule (74 FR 52014, October 8, 2009)) the
efforts of the State and other entities to implement conservation
measures for the species. However, the best available information leads
us to conclude that currently available management tools are not
capable of effectively reducing or ameliorating the primary threats
across the range of the species to the point where it does not require
listing under the ESA. Please refer to the Evaluation of Conservation
Efforts section of the 2009 final listing rule (74 FR 52014, October 8,
2009) for a more detailed discussion of our previous evaluation of
conservation efforts being made by the State of Idaho and other
entities to protect L. papilliferum.
(7) Comment: The State commented that, in order to support the
threatened determination, the Service extrapolates wildfire data from
the previous half-century in order to predict future wildfire trends.
The State expressed that it is overly simplistic to base a listing on
the assumption that, because on average 150 acres of habitat have
burned each year for the past 50 years, 150 acres will continue to burn
each year in the future, particularly when considering the proactive
measures mentioned in the previous comments above.
Our Response: We recognize that our model (Figure 1; USFWS 2015, in
litt.) is relatively simple, assuming, for example, that unburned
habitats have similar wildfire vulnerability, and that the impacts to
habitat from wildfire will continue to occur at a constant rate over
time, when in reality some habitats may differ in their resistance to
wildfire and
[[Page 55074]]
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 Lepidium 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. Regarding the reference to the conservation
measures, please refer to responses to Comments 3-6. In addition, 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; given these
considerations, we conclude that our estimate is relatively
conservative.
(8) Comment: The State commented that the Service's use of a 5-year
dataset that resulted in the 170 acres per year calculation is
unreliable and unreasonable because it is based on a small sample size,
during which Idaho experienced one of the worst fire seasons on record
(2012). They argued that using such a short window of years to predict
future trends is completely arbitrary and should not be relied upon.
Another commenter also felt that our burn rate calculation method for
determining the foreseeable future is too low and also flawed because
we assume a uniform fire rate based on an arbitrary 5-year period of
time. The commenter stated that the Service cannot ``reasonably and
reliably predict that this rate will continue,'' given current
understanding of accelerating climate change threats and effects, B.
tectorum effects, chronic grazing disturbance degradation effects, lack
of resiliency of Wyoming big sagebrush habitats, the magnitude of
damage that has already been done to these (no A-ranked sites even
remain) and the synergistic effects of all of these (and other)
threats, including drought and stochastic processes.
Our Response: To determine the rate at which wildfire is impacting
Lepidium 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. We used accurate, site-
specific historical fire data to generate an average impact of a highly
stochastic process. To do so, in the proposed reconsideration of the
final rule, we used two time periods, one more conservative (the last
56 years (to generate the 150 ac/yr (61 ha/yr) rate)) and one estimate
assuming potentially accelerated losses to fire, as based on
observations over the last 5 years (as an indicator of recent changes,
generating the 170 ac/yr (69 ha/yr) rate).
We agree with the commenters that our 5-year estimate is too short
a timeframe to accurately reflect the average impact of wildfire, and
we have removed this estimate from this final rule. However, we believe
our long-term estimate (updated in this final rule to reflect the last
59 years of data, which resulted in a change from 150 ac/yr (61 ha/yr)
to a rate of 141 ac/yr (57 ha/yr)) is a reliable estimate using the
best available scientific data. We also believe it 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. We do not narrowly predict that every year 141 ac (57
ha) will burn. We estimate that over the foreseeable future, on average
the impact of wildfire on unburned habitat will be 141 ac (57 ha) per
year.
We recognize that caution should be used in interpreting geospatial
information as it represents relatively coarse vegetation information,
which 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 October 8, 2009, final listing rule (74 FR 52014), is likely
facilitating the continued spread of invasive plant species and Owyhee
harvester ant colony expansion, all of which continue to negatively
affect L. papilliferum and its habitat.
(9) Comment: Both the State and ISDA commented that livestock use
should be removed from the list of threats to Lepidium papilliferum.
The Idaho State Office of Species Conservation argued that, based on
the Service's own analysis, mechanical damage to the plant and its
habitat ``does not pose a significant risk to the viability of the
species as a whole.'' They added that the threat from livestock is
essentially nullified when considering the associated benefits
livestock use can have on L. papilliferum and its habitat. ISDA added
that L. papilliferum listing would have more impact on ranchers on
public lands than any other group, and that wildfire and the spread of
invasive nonnative plant species, like Bromus tectorum, have done more
to move L. papilliferum toward listing than any other factor. Several
additional commenters made reference to livestock grazing as it relates
to the 2009 final listing rule (74 FR 52014, October 8, 2009). Some of
the commenters felt that it should be removed as a threat to L.
papilliferum. Other commenters felt it should be elevated from a
secondary to a primary threat. No new information was provided by these
commenters.
Our Response: For the purposes of this rulemaking, we addressed
only comments directly relevant to the proposed reconsideration of the
final rule, and, therefore, comments revisiting the listing decision
that was published on October 8, 2009 (74 FR 52014), if they did not
provide any new information that was not already considered, are not
addressed in this rule. We fully considered and evaluated livestock use
as a potential threat in the 2009 final listing rule (74 FR 52014,
October 8, 2009). Because we concluded at that time that livestock use,
as currently managed, is not a primary threat to the species, livestock
use was not identified as a primary threat to the species in our
proposed reconsideration of the final rule (79 FR 8416, February 12,
2014), and we did not include it in our foreseeable future discussion.
A detailed discussion and analysis of each of the threat factors for
Lepidium papilliferum can be found in the final listing decision for L.
papilliferum (published in the Federal Register on October 8, 2009 (74
FR 52014).
(10) Comment: The ISDA stated that the Service did not adequately
consider biological and innovative controls for invasive nonnative
plants as they relate to the foreseeable future of Lepidium
papilliferum. The ISDA suggested that the Service take these ongoing
research projects into consideration since invasive nonnative plant
species, such as Bromus tectorum, is one of the primary threats to L.
papilliferum, and these controls could likely be significantly reduced
as a threat to the species in the very near future.
Our Response: The Service is encouraged by the emerging invasive
nonnative plant controls. However, these invasive nonnative control
methods are still being developed and are not yet available on a
landscape scale, nor is effectiveness data currently available for
these controls, thus accounting for them in our foreseeable future
estimation would be no more than speculative. In addition, these
biological controls are currently only approved on an experimental
basis, not for widespread use, on Federal lands, where 87 percent of
the total occupied Lepidium papilliferum habitat is located. However,
we are hopeful that such methods may prove to be effective in the
control of the significant threat posed by invasive nonnative plants on
a landscape scale.
[[Page 55075]]
Comments From Tribes
(11) Comment: The Shoshone-Bannock Tribes commented that the
listing process must clearly recognize the Tribes' off-reservation
right to hunt, fish, and gather on unoccupied lands of the United
States, and requested that the listing state that the management shall
in no way impinge upon Treaty Rights as the Indians understood them.
They expressed that treaties of the Federal Government are the supreme
law of the land, and their Treaty Rights should be clearly stated
upfront and foremost in the listing process. They added that, under
Article 5 of the 1868 Treaty with the Eastern Band Shoshoni and Bannock
(15 Stat. 673), the Federal Government agreed that all cases of
depredation on person or property will be taken to the Commissioner of
lndian Affairs, now called the Assistant Secretary of the Interior for
Indian Affairs, for due consideration. The Tribes reiterated that the
Service has a trust responsibility to duly consider the vested rights
and interests of the Tribes.
Our Response: In response to the concerns expressed by the
Shoshone-Bannock Tribes and in accordance with Secretarial Order 3206,
we recognize our trust responsibility and treaty obligations toward
Indian tribes and tribal members. We also acknowledge that tribal trust
resources, either on or off Indian lands, are protected by a fiduciary
obligation on the part of the United States. Lepidium papilliferum is
not known to occur on tribal lands, and we are not aware of specific
tribal activities that may conflict with conservation of slickspot
peppergrass. However, if new information reveals a need to address
conflict between Tribal activities and the conservation needs of the
species, we will work with the Tribes, in accordance with our Federal-
Tribal trust responsibilities and obligations, to promote conservation
of the species and its habitat.
Public Comments
(12) Comment: One commenter argued that the Service did not analyze
the considerable new scientific information that highlights the grave
threats grazing disturbance poses to sagebrush ecosystems.
Specifically, the commenter stated that, in the Factors Affecting the
Species section of the proposed reconsideration of the final rule (79
FR 8416; February 12, 2014), the Service cites much too short
historical fire-return intervals for its estimation of fire frequency
and return intervals. The commenter suggested replacing the interval we
referenced (60-100 years) with the fire-return intervals used in the
greater sage-grouse 12-month finding, which included intervals up to
350 years (75 FR 13910, p. 14016; March 23, 2010).
Our Response: This commenter provided numerous documents for our
consideration. Many of the documents were previously submitted or had
already been cited and considered in the 2009 final listing rule (74 FR
52014, October 8, 2009). However, some of the information provided was
new information that has become available since our 2009 final listing
rule. Although this new information did not specifically address direct
or indirect impacts to Lepidium papilliferum and slickspots from
livestock use, the commenter provided many general references that
describe livestock impacts to sagebrush steppe habitats. After careful
consideration of the new information provided by the commenter, we
conclude that, while it supports and builds on information that we used
in the 2009 final listing rule, it does not alter our 2009 listing
determination. As we describe in the 2009 final listing rule, there are
potential negative impacts to L. papilliferum populations and
slickspots resulting from livestock grazing, but livestock use in areas
that contain L. papilliferum has the potential to result in both
positive and negative effects on the species, depending on factors such
as stocking rate and season of use. The new information submitted does
not alter our earlier conclusion that livestock use, as currently
managed, is not a primary threat to the species.
The commenter provided literature that discusses the role that
livestock grazing plays in contributing to annual grass cover. As
discussed in the 2009 final listing rule (74 FR 52014, October 8,
2009), we acknowledge there are some case studies from western North
America that suggest that grazing plays an important role in the
decrease of native perennial grasses and an increase in dominance by
nonnative annual species (as described in Reisner et al. 2013, which
was provided by the commenter). However, invasion by nonnative grasses
has been found to occur both with and without grazing in some areas.
Today, nonnative annual plants such as Bromus tectorum are so
widespread that they have been documented spreading into areas not
impacted by disturbance (Piemeisel 1951, p. 71; Tisdale et al. 1965,
pp. 349-351; Stohlgren et al. 1999, p. 45); therefore, the absence of
livestock use no longer protects the landscape from invasive nonnative
weeds (Frost and Launchbaugh 2003, p. 44), at least with respect to B.
tectorum.
The commenter also provided literature that discusses the value of
passive restoration in the form of reducing cumulative cattle grazing,
as a means of restoring habitats, as well as research that raises
concerns regarding proposals to use cattle grazing to control Bromus
tectorum in ecosystems where remnant bunchgrass communities persist. In
the 2009 final listing rule (74 FR 52014, October 8, 2009), we
described that with careful management, livestock grazing may
potentially be used as a tool to control B. tectorum (Frost and
Launchbaugh 2003, p. 43) or, at a minimum, retard the rate of invasion
(Loeser et al. 2007, p. 95), but that others have suggested that, given
the variability in the timing of B. tectorum germination and
development, and its ability to spread vegetatively, effective control
of B. tectorum through livestock grazing may be a challenge (Hempy-
Mayer and Pyke, 2008, p. 121).
In the 2009 final listing rule (74 FR 52014, October 8, 2009), we
also specifically recognized the potential for negative impacts to
Lepidium papilliferum populations and slickspots that may result from
seasonal, localized trampling events. However, with the implementation
of conservation measures to minimize potential direct and indirect
impacts of livestock to L. papilliferum, such as restricting livestock
access to areas occupied by L. papilliferum when slickspot soils are
wet, and thus most vulnerable to damage, we consider livestock use to
be a lesser threat to the species than the primary threats posed by the
altered wildfire regime and associated increase in nonnative, invasive
plant species within the range of L. papilliferum.
Evidence of the direct and indirect potential impacts to L.
papilliferum and slickspots from livestock use is still relatively
limited. We acknowledged in the 2009 final listing rule (74 FR 52014,
October 8, 2009) that the available data may not be adequate to detect
time-dependent issues associated with livestock use, as only 5 years of
HIP data were available when the analysis was conducted (Sullivan and
Nations 2009, p. 137). However, since the commenter did not provide any
new data specific to L. papilliferum, the HIP analysis presented in the
2009 final listing rule still represents the best species-specific data
available (as described in detail in ``Livestock Use'' under Factor A
in the Summary of Factors Affecting the Species section of the 2009
final listing rule).
Taking all of the new information into account, we still conclude
that livestock will have a negative impact on Lepidium papilliferum,
primarily
[[Page 55076]]
through mechanical damage to individual plants and slickspot habitats;
however, the current livestock management conditions and associated
conservation measures address this potential threat such that it does
not pose a significant risk to the viability of the species as a whole.
However, we continue to encourage the ongoing implementation of
conservation measures and associated monitoring to ensure potential
impacts of livestock trampling to the species are avoided or
significantly minimized. Because we limited 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, as identified in the
2009 final listing rule (74 FR 52014, October 8, 2009), and because we
concluded that the new information provided by the commenter does not
alter our previous conclusion that livestock use is a secondary threat
to L. papilliferum, we did not include an updated summary of livestock
use in this final rule. We have included the new references provided by
the commenter in our decision record, which can be accessed by
contacting the Idaho Fish and Wildlife Office (see ADDRESSES, above).
In reference to the commenter's request that we use more recently
described fire-return intervals, we have updated this reference in the
Factors Affecting the Species section of this final rule. However, it
should be noted that, in our calculation of foreseeable future, we
relied on empirical site-specific historical fire data, not general
sagebrush-steppe fire-return interval estimates.
(13) Comment: One commenter expressed that Bromus tectorum risk
mapping should be considered in this rule to determine foreseeable
future.
Our Response: We carefully reviewed the information provided by the
commenter. The commenter referenced a publication (Peterson 2007),
which provides a map of annual grasses in the Owyhee Uplands developed
in spring 2006. This is a dated, although still highly regarded, study.
However, because it does not adequately cover Lepidium papilliferum
habitat, we cannot use this information in a rangewide analysis for the
species. In addition, this is a single-year mapping effort, making
comparisons over time (as we did for our wildfire analysis) impossible.
In this rule, we noted a geospatial analysis conducted by Stoner (2009,
p. 81), which indicates that by 2008 approximately 20 percent of the
total area of all L. papilliferum EOs rangewide was dominated by
introduced invasive annual and perennial plant species. However,
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, and also cannot be used to determine the rate at which
invasive nonnative plant species are impacting L. papilliferum habitats
and how far into the future we can reasonably predict the likely
effects of invasive nonnative species on L. papilliferum. Because we
are unaware of any other site-specific Bromus tectorum or invasive
nonnative plant species data that has been repeated over time, and
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 as wildfire.
(14) Comment: One commenter felt that current management practices
are inadequate to protect or aid in the recovery of Lepidium
papilliferum. The commenter cited as an example that the Candidate
Conservation Agreement (CCA) for L. papilliferum states that water
troughs near EOs will be moved or turned off, and, according to the
commenter, this has not occurred. The commenter added that according to
HIP monitoring several sites have been negatively disturbed by hoof
action. Another commenter stated that the HIP monitoring for L.
papilliferum shows declines in populations across its entire range and
this decline is in spite of abundant spring moisture in 2013. The
commenter argued that this decline shows a lack of adequate regulatory
mechanisms to protect and conserve the species.
Our Response: We agree that, to date, we have not been notified of
any livestock troughs that have been removed or turned off for Lepidium
papilliferum conservation. However, HIP monitoring has detected a
decline in livestock trampling triggers tripped over the 10 years of
monitoring (the trampling ``trigger'' refers to a threshold for
trampling set in the CCA, which was developed by the State of Idaho,
BLM, and others in 2003, and is defined as breaking through the
restrictive layer under the silt surface area of a slickspot during
saturated conditions; State of Idaho et al. 2006, p. 9). The highest
number was eight triggers tripped in 2007; more recent years have shown
a low incidence of livestock triggers tripped (one livestock trigger
tripped in 2012, zero livestock triggers tripped in 2013, and two
livestock triggers tripped in 2014). While it is true that 2013 HIP
monitoring resulted in the lowest L. papilliferum plant numbers
observed in the 10 years of the HIP monitoring data available to date
(6,351 plants), the spring of 2013 was dry and warm. Total
precipitation from March through June 2013 in Boise, Idaho, was 2.49
inches (in) (6.32 centimeters (cm)). In contrast, March through June
2014 total precipitation was 5.36 in (13.6 cm) (National Weather
Service, 2015). The 2014 HIP monitoring resulted in 45,569 total plants
observed on HIP transects, the third highest number of plants observed
over the 10 years of HIP monitoring (Kinter 2015, in litt.). It appears
that the lower plant numbers in 2013 were likely related to climate
conditions, although we do recognize that habitat conditions for L.
papilliferum continue to decline across the range of the species.
(15) Comment: One commenter requested that additional factors be
considered in the foreseeable future determination, such as seedings of
invasive Bassia prostrata and Agropyron cristatum (crested wheatgrass)
on BLM, State, or private lands. This same commenter also stated that
our estimates of foreseeable future do not adequately address
synergistic effects of multiple threats and disturbances and they do
not address the non-linear rate of change in Lepidium papilliferum
habitats and the ecological process distortion already set in motion.
For example, the commenter suggested that slickspots with moderate
levels of weeds are exceedingly likely to have surfaces choked with
weeds as chronic livestock degradation continues. The commenter added
that habitat degradation, once a considerable amount of weeds are
present, is not reversible in slickspots.
Our Response: For the purpose of this rulemaking, we limited 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 Lepidium 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), as well as
the contributing threat factors of planned or proposed development,
habitat fragmentation and isolation, and the emerging threat from seed
predation by Owyhee harvester ants. As acknowledged in our proposed
reconsideration of the final rule (79 FR 8416, February 12, 2014), we
recognize that our model is relatively simple,
[[Page 55077]]
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.
Although a far more complex and exhaustive modeling effort might be
possible that would incorporate elements of variability and
stochasticity, the Act requires that we make our determinations based
on the best scientific and commercial data available (emphasis ours).
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 in the final rule (74 FR 52014, October 8, 2009), 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.
(16) Comment: One commenter suggested that a direct relationship
between climate change, wildlands fire, and Lepidium papilliferum
population dynamics is mostly conjecture and not supported by science.
The commenter stated that the climate change portion of this equation
is based on the General Circulation Model and the Parallel Climate
Model, which, like the Global Climate Models, apply to large areas, and
do not necessarily apply to local situations like the Owyhee Desert or
along the Snake River. The commenter added that the projected future
effects of climate change at this time are hypothetical, and the
effects of the stable climate over the past decade further complicate
climate change models, obscuring hypothetical primary threats from
wildfire and Bromus tectorum. Another commenter commented that the
Service did not consider new climate change information. The commenter
argued that impacts from wildfire will not occur over a constant rate,
particularly when climate change effects are considered, causing our
model to likely greatly overestimate the time period until Lepidium
papilliferum is endangered.
Our Response: The Service recognizes that climate change is an
important issue with potential effects to listed species and their
habitats. We also recognize there are scientific differences of opinion
on many aspects of climate change. In the 2009 final listing rule (74
FR 52014, October 8, 2009), we relied primarily on the IPCC 2007
synthesis document, which presents the consensus view of a large number
of experts on climate change, and which projected 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). According
to the more recent IPCC 2013 synthesis document (p. 7), which we have
incorporated into this final listing rule, current trends in the
climate system--increasing temperature, increasing duration and
intensity of drought, decreasing snowpack, increasing heavy
precipitation events, and other extreme weather--are likely to continue
through the 21st century.
Although current climate change effects are documented in the
western United States, the direct, long-term impact from climate change
to Lepidium papilliferum is yet to be determined, and new studies have
not significantly altered our understanding of how climate change is
likely to affect L. papilliferum and its habitat. However, while the
response of L. papilliferum to habitat changes resulting from climate
change remain difficult to predict, even under conservative projections
of the consequences of future climate change, we anticipate that in the
foreseeable future climatic conditions will favor further invasion by
Bromus tectorum, that fire frequency will continue to increase, and
that the extent and severity of fires may increase as well. The
positive correlations between these factors are well supported in the
peer-reviewed literature, as referenced in the final listing rule and
this final rule.
As stated elsewhere in this rule, for the purpose of this document,
we limited 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. We acknowledge that our foreseeable
future estimate does not account for potentially greater rates of loss
due to the likely effects of climate change and increasing coverage of
Bromus tectorum. Our estimate is, therefore, a conservative estimate.
However, we note that, even if revised calculations resulted in a
potentially shorter period of time before L. papilliferum reaches the
conditions under which we consider it to be endangered, our ultimate
determination, that it currently meets the definition of a threatened
species according to the Act, would remain the same. Our listing
determination would change only if new information regarding existing
threats or potential additional threats indicated that L. papilliferum
is currently in danger of extinction, and we have no scientific data at
this point in time to suggest that this is the case. A complete
description of the potential effects from climate change and our
evaluation of this threat is found in Factor E of the Summary of
Factors Affecting the Species discussion in the 2009 final listing
rule.
(17) Comment: One commenter expressed that it is unreasonable to
assume, without actual population estimates and without understanding
threats, that Lepidium papilliferum is in danger of extinction within
the next 36 to 47 years, or the foreseeable future. The commenter
questioned our description of the future endangered status for L.
papilliferum because actual rangewide population numbers are unknown.
The commenter went on to add that hypothesizing the number of years
(approximately 36 to 47 years) when 80 to 90 percent of its remaining
habitat will have been affected, based on the ongoing rates of L.
papilliferum habitat impacted by wildfire, is meaningless, because 100
percent of the range burns at regular intervals and actual populations
of L. papilliferum are unknown.
Our Response: The Act requires that we make listing decisions based
on the best scientific and commercial data available. As discussed
elsewhere in this document (see our response to Comment 6, above), past
population trend data were not used in making the listing decision for
Lepidium papilliferum, nor did we attempt to project population trends
into the future, as ``it would be inappropriate to rely on this model
to predict any future population trajectory for L. papilliferum'' (see
pp. 52022-52025 of the October 8, 2009, listing rule, 74 FR 52014).
Systematic rangewide surveys for L. papilliferum have not occurred.
However, occupied slickspot sites and EOs discovered since the 2009
listing have not added substantially to our knowledge of where the
species exists; these new sites all occur within the known range of the
species. Furthermore, we must make our determination on the basis of
the information available at this time, and the Act does not allow for
delay of our decision until more information about the species and its
habitat are available. While some uncertainty will always exist, the
existing information used in this final rule represents the best
available scientific information upon which to make a foreseeable
future determination for this species. We continue to encourage future
survey and monitoring work for this species and its habitat.
[[Page 55078]]
With regard to our estimate of when Lepidium papilliferum would
become an endangered species (in danger of extinction), we disagree
with the commenter's characterization of our evaluation as a
``hypothesis.'' Our estimated timeframe for determining when L.
papilliferum will reach the point when 80 to 90 percent of its
remaining unburned habitat will have been affected by fire is based on
empirical data collected over a period of 59 years, which allowed us to
project forward based on the average annual rate at which previously
unburned L. papilliferum habitat has been affected by wildfire. We
consider this to represent the best scientific data available with
regard to the likely rate at which the primary threat of wildfire, and,
by association, the rate at which invasive nonnative plants, will
affect the status of the species over time.
(18) Comment: One commenter questioned what we meant by ``complete
count'' of plants, and asked why we are attempting to list a species
when much land remains to be surveyed for Lepidium papilliferum. The
commenter cited the following statement in the proposed reconsideration
of the final rule (79 FR 8416, February 12, 2014): ``The discovery of
some new occupied sites is not unexpected given not all potential L.
papilliferum habitats in southwest Idaho have been surveyed.'' The
commenter added that there has never been a survey of proper sample
size to draw any conclusions regarding the dynamics of the L.
papilliferum population and suggested that, from what little has been
surveyed, the average number of plants per transect has increased over
the last several years compared to the early survey years.
Our Response: As described in the 2009 final listing rule (74 FR
52014, October 8, 2009), ``complete count'' refers to making a complete
count of all aboveground plants (each individual) observed on HIP
transects during annual monitoring from 2005 to the present (as opposed
to recording plant abundance as a range of values, which was done
during HII transect monitoring from 1998-2002). Comparison of the
average number of plants observed during HIP transect monitoring (2005-
present) with plant numbers collected during HII monitoring (1998-2002)
is problematic, as the two monitoring strategies used differing
methodologies. For example, for HII monitoring, the same slickspots
were not monitored each year within transects, and a range of plant
numbers, rather than recording complete counts as was done for the HIP
monitoring, was reported. In response to the comment that much of the
land remains to be surveyed for Lepidium papilliferum, please see our
response to Comment 17.
(19) Comment: One commenter questioned the biological reason for
the 80-90 percent threshold of habitat loss at which the species will
be in danger of extinction. They asked if the Service will
automatically declare Lepidium papilliferum in danger of extinction
when the 80-90 percent loss of unburned habitat is reached without
regard to the actual population size.
Our Response: Any change in status under the Act always requires a
public rulemaking and is never automatic. In accordance with section
4(a)(1)(b) of the Act, the Secretary determines whether any species is
an endangered species or threatened species because of any of the five
factors, which are described above under The Basis for Our Action. The
Secretary makes this determination based on the best scientific and
commercial data available at the time of the status review. In response
to the commenter's question regarding the biological reason for the 80-
90 percent threshold of habitat loss, we based this estimate on our
conclusion that at that point Lepidium papilliferum would most likely
become in danger of extinction, because in our best professional
judgment under these conditions the species would most likely persist
only in a small number of isolated EOs, most likely with small
populations that would be fragmented from other extant populations,
such that the remaining populations would be incapable of interchange
sufficient to maintain the long-term existence of the species. We
acknowledge that this is a qualitative assessment of the threshold,
based on fundamental principles of conservation biology, and that it
relies upon our best estimate of when these conditions would be met in
the future using the best available scientific data regarding the
action of the primary threats on the species and its habitat. There is
no precise mathematical formula available specific to L. papilliferum
(nor is there for any species) that provides for a definitive
quantitative assessment capable of pinpointing the exact moment in time
when the status of the species would transition to ``in danger of
extinction.'' We did not receive an alternative suggestion of what
might be more reasonable, nor did we receive any evidence that our
approach is incorrect.
(20) Comment: One commenter stated that the Service's statement
that ``[b]ecause we still do not see strong evidence of a steep
negative population trend for the species . . . we believe that
Lepidium papilliferum is not in immediate danger of extinction'' raises
the question of how ``immediate'' the danger of extinction must be in
order to qualify a species for listing as ``endangered'' rather than
``threatened.'' The commenter suggested that the Service's description
of threats to the species indicates that L. papilliferum is not merely
``likely to become an endangered species within the foreseeable
future,'' but is in fact ``in danger of extinction.'' Another commenter
agreed, stating the Service's foreseeable future estimate of 50 years
is overly optimistic. The commenter argued that L. papilliferum is
crossing the threshold to becoming an endangered species right now. The
commenter added that the Service may arrive at this conclusion if we
used the current wildfire return intervals for Wyoming big sagebrush
communities, and fully and fairly incorporated the broad spectrum of
livestock degradation effects to the sagebrush matrix and slickspots.
Our Response: In considering potential threatened species status
for Lepidium papilliferum, we described what endangered species status
(in danger of extinction throughout all or a significant portion of its
range) for L. papilliferum would be. As described in our proposed
reconsideration of the final rule (79 FR 8416, February 12, 2014), we
believe L. 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 in only a small number of
isolated EOs, most likely with small populations that would be
fragmented from other extant populations. 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. At present, we
estimate there are approximately 7,477 ac (3,025 ha) of L. papilliferum
habitat remaining that have not yet been negatively impacted by fire.
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 wildfire will be negatively
affected by wildfire within an estimated 43 to 48 years. Therefore,
while we conclude the species is not at immediate risk of extinction,
our analysis has led us to conclude that L. papilliferum is likely to
become an endangered species within the foreseeable future, based on
our
[[Page 55079]]
assessment of that period of time over which we can reasonably rely on
predictions regarding the threats to the species. Based on our analysis
of the best scientific and commercial data available, we have no
information to suggest that the status of L. papilliferum is such that
it is currently in danger of extinction, and we conclude that
threatened status is appropriate for this species.
For the purpose of this document, we limited 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 Lepidium 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); 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. We fully considered and evaluated livestock use as a
potential threat in the 2009 final listing rule (74 FR 52014, October
8, 2009); because we did not conclude that this activity poses a
primary threat to the species, we did not include it in our foreseeable
future discussion. As described in the section Factors Affecting the
Species of this document, we additionally considered any new
information that has become available regarding stressors to the
species since our 2009 final listing rule. As this new information was
largely congruent with our original determination, it did not lead us
to alter our conclusions with regard to those stressors that pose a
significant threat to the species at this time.
(21) Comment: One commenter stated that once the species is
diminished to the point that the Service deems it ``in danger of
extinction,'' 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. The commenter added that
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. The commenter was concerned that it will not be possible to
recover the species at that point.
Our Response: We acknowledge the commenter's concern, and note that
this very concept underlies the rationale for the ``threatened
species'' classification under the ESA--it provides for the
conservation of species before they are in danger of extinction, when
recovery is more difficult. The goal of the ESA is the recovery of
listed species to levels where protection under the ESA is no longer
necessary. As the commenter indicated, it is, in some cases, more
challenging to recover a species that meets the definition of
endangered than one that meets the definition of threatened. 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.'' In other words, the
primary statutory difference between a threatened species and an
endangered species is the timing of when a species may be in danger of
extinction, either presently (endangered) or in the foreseeable future
(threatened). Our analysis indicates that, although Lepidium
papilliferum is likely to become in danger of extinction in the
foreseeable future, it is not currently on the brink of extinction and
does not meet the definition of endangered. By listing this species as
threatened, we seek to prevent it from becoming endangered.
Furthermore, we will continue to review new information and monitor the
status of this species in order to evaluate whether changes to the
species' classification are appropriate in the future.
(22) Comment: One commenter inquired how EO ranks have changed
since 2006. The commenter stated that we did not provide current
mapping of sagebrush habitats or the criteria and vegetation mapping
methodology, based on current vegetation data, that we used to
establish a baseline. The commenter felt this was important, because
the Service requested comment on our choice of the 80 to 90 percent
threshold. The commenter requested the baseline status of all EOs in
2014.
Our Response: We did not provide mapping of sagebrush habitats
because our geospatial data analysis was specific to Lepidium
papilliferum EO area affected by wildfire over 50 years (from 1957 to
2007), not sagebrush habitats in general. ``Habitat'' in the referenced
sentence refers specifically to L. papilliferum habitat. In addition,
in our determination of the 80 to 90 percent threshold, we utilized
recent fire-history data, not Idaho Natural Heritage Program (INHP) EO
rankings. Our best scientific data available at this time are the 2005
INHP EO ranks. INHP is currently in the process of re-evaluating the EO
ranks; however, the updated ranks are not yet available. Please refer
to the Factors Affecting the Species section of our proposed
reconsideration of the final rule (79 FR 8416, February 12, 2014) for
more details on our rationale supporting our conclusion of the 80-90
percent threshold; see also our response to Comment 20, above.
(23) Comment: One commenter requested clarification on how we
estimated the approximately 7,567 ac (3,064 ha) of Lepidium
papilliferum habitat not yet negatively impacted by wildfire, and asked
if this estimate includes 2013 wildfires. The commenter also inquired
what vegetation mapping and site-specific information was used, when
and how it was collected, and what the boundary was of the total
habitat area being considered. The commenter also requested the mapping
information.
Our Response: We have updated our evaluation to reflect new fire
data that has become available since the publication of the proposed
reconsideration of the final rule, including data from 2013 to 2015.
This new information indicates that over a period of 59 years (1957 to
2015), the perimeters of 149 wildfires occurring within the known range
of Lepidium papilliferum have burned approximately 8,348 ac (3,378 ha)
(Hardy 2016, in litt.). We determined, using GIS, that there are
approximately 7,477 ac (3,025 ha) of L. papilliferum habitat remaining
that have not yet been negatively impacted by wildfire, by subtracting
the total area of L. papilliferum habitat that has burned (8,348 ac
(3,378 ha)) from the total L. papilliferum EO area of 15,825 ac (6,404
ha), which was calculated using the new fire information that has
become available since 2009, and considering only impacts to new,
previously unburned areas over the past 59 years (1957-2015). For a
more detailed explanation of how this was calculated, please refer to
the Summary of Factors Affecting the Species, Altered Wildfire Regime
section of this document (above).
In reference to the commenter's questions regarding the data and
mapping used in our analysis, we used L. papilliferum EOs from the
January 2015 IFWIS data export and wildfire data from the BLM up to and
including 2015. This information is located in our decision record,
which can be accessed by contacting the Idaho Fish and Wildlife Office
(see ADDRESSES, above).
(24) Comment: One commenter stated that we did not estimate the
acres of
[[Page 55080]]
occupied Lepidium papilliferum habitat that was burned before any
surveys had been conducted and EOs applied, with much of L.
papilliferum long ago wiped out by the combination of the fire effects,
BLM seeding of crested wheatgrass, Bassia prostrata or other exotic
species, and continued grazing disturbance with minimal post-fire rest.
The commenter inquired about how much of the land area of potential
habitat has burned, or has burned and then been aggressively seeded and
grazed. Furthermore, the commenter wanted to know how much of the
potential habitat experienced an increase in invasive nonnative species
as a consequence.
Our Response: We acknowledge that having more historical
information on the distribution and abundance of Lepidium papilliferum
before surveys were conducted and EOs identified would be helpful;
however, that information does not exist. We have based our
determinations on the best available scientific information; therefore,
we used current EO data only.
(25) Comment: One commenter stated that to base the foreseeable
future model solely on the burned acreage and not on the actual or
reliably estimated population parameters is unsupportable. The
commenter explained that the only way for a foreseeable future model to
be valid for a declining species is to first show that the population
is actually declining, and then have a significant rate of decline over
a scientifically determined large enough population sample size to be
able to draw valid conclusions.
Our Response: Projecting when a population reaches a certain level
requires accurate population numbers. As stated in our 2009 final
listing rule (74 FR 52014, October 8, 2009), past population trend data
were not used in making the listing decision for Lepidium papilliferum
as ``it would be inappropriate to rely on this model to predict any
future population trajectory for L. papilliferum'' (see pp. 52022-52025
of the 2009 final listing rule). In that rule we described that there
are many uncertainties associated with both the data and the model used
that preclude our ability to make such a projection, including the
great annual variability in aboveground numbers of L. papilliferum and
the confounding influence of the long-lived seedbank. Therefore, our
analysis of the foreseeable future for the purposes of assessing the
status of L. papilliferum relies on the foreseeability of the relevant
threats to the species over time. The primary threats of wildfire and
nonnative invasive plants, especially Bromus tectorum, are currently
affecting the species throughout its limited range, and we find that
using accurate, site-specific historical fire data is a more reliable
measure for predicting the conservation status of this species into the
foreseeable future.
In response to the comment regarding population declines, as stated
in our 2009 final listing rule (74 FR 52014, October 8, 2009), we 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. It is this significant correlation between these
threat factors and the population response of the species that obviates
the need for statistically significant population trend data and
enables us to rely on the reasonably foreseeable effects of these
threat factors acting on L. papilliferum to predict that it is likely
to become in danger of extinction within the foreseeable future.
(26) Comment: One commenter expressed that it is not firmly
established scientifically that the threats of wildfire and invasive
nonnative plants are currently affecting Lepidium papilliferum
throughout its range. The commenter stated that it is unknown whether
the ``hypothetical'' threats described in both the 2009 final listing
rule (74 FR 52014, October 8, 2009) and our proposed reconsideration of
the final rule (79 FR 8416, February 12, 2014), including development,
habitat fragmentation, and climate change, will increase into the
foreseeable future. The commenter added that populations will continue
to cycle. Low numbers have been attributed to unusually cold and wet
springs, while high population counts occur during extremely favorable
climactic elements that resupply the L. papilliferum seed bank and
populations. The populations will also cycle due to weather variables
that are not currently apparent. The commenter reiterated that there is
not strong evidence of a steep negative population trend for this
species, and noted that although the total number of L. papilliferum
plants counted in HIP monitoring in 2011 and 2012 were the lowest since
2005, these numbers can, according to Kinter (2012 in litt.), fluctuate
widely from one year to the next and are probably not great cause for
concern.
Our Response: As discussed in our response to Comment 25, above, we
agree that the extreme variability in plant numbers from year to year
precludes our ability to rely strictly on population trend data to
inform us as to the likely future status of the species. Section 4 of
the Act and its implementing regulations (50 CFR part 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.
Relatively limited new data regarding population abundance or
trends have become available since our 2009 final listing rule (74 FR
52014, October 8, 2009). As discussed in the section Factors Affecting
the Species of this final rule, 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. We acknowledge that, similar
to our findings in our 2009 final listing rule, we do not see strong
evidence of a steep negative population trend for the species. However,
as stated in our 2009 final listing rule, we have information
indicating a statistically significant negative association between L.
papilliferum abundance and wildfire, and between L. papilliferum
abundance and cover of Bromus tectorum in the surrounding plant
community. Our analysis of the foreseeable future for the purposes of
assessing the status of L. papilliferum relies on the foreseeability of
the relevant threats to the species over time. We anticipate the
continuation or increase of all of the significant threats to L.
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 at their current
rate or increase. These data indicate that 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.
We have analyzed and assessed known threats impacting L.
papilliferum, and used the best available information to carefully
[[Page 55081]]
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.
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 L.
papilliferum. Please refer to the Factors Affecting the Species section
of our proposed reconsideration of the final rule (79 FR 8416, February
12, 2014) for an analysis of the available data used in our
determination. Also refer to our response to Comment 25 for a
discussion of our decision to use wildfire data, as opposed to trend
data, to analyze the foreseeable future.
In regard to the commenter's statement concerning the 2011 and 2012
population counts, we acknowledge that aboveground numbers of L.
papilliferum individuals can fluctuate widely from one year to the
next. Demonstrating this fact, since the proposed reconsideration of
the final rule was published (79 FR 8416, February 12, 2014), we have
received 2 additional years of HIP monitoring data (2013 and 2014). The
2013 HIP monitoring resulted in the lowest L. papilliferum plant
numbers (6,351 plants) observed in the 10 years of the HIP monitoring
data available to date; however, the 2014 HIP monitoring resulted in
45,569 total plants observed on HIP transects, the third highest number
of plants observed over the 10 years of HIP monitoring (Kinter 2015, in
litt.). In our proposed reconsideration of the final rule, we had
stated that low counts of plants observed in 2011 and 2012 were
potentially a cause for concern. We do maintain that habitat conditions
for L. papilliferum continue to decline across the range of the
species; however, we agree with the commenter that such a statement
[that low numbers in any particular year may be a cause of concern] is
not appropriate, given that numbers of above-ground individuals of L.
papilliferum can vary so widely from one year to the next; therefore,
we have removed this statement from the final rule.
(27) Comment: One commenter suggested that wildfire damage to
biological soil crust and nonnative plants invading slickspots have a
potential connection that needs further analysis. The commenter
explained that volatile oils have been extracted from wild mustards in
the genus Lepidium, and mustard oil extracts can suppress growth of
other plant species due to the release of toxic substances. Garlic
mustard (Alliaria petiolata), another member of the mustard family
(Brassicaceae), to which Lepidium species belong, can phytochemically
suppress soil fungi and, thus, the release of mustard oil can,
therefore, impact the formation and maintenance of the soil crust. The
commenter suggested that Lepidium species can thus negatively impact
the soil crust, as opposed to the reverse scenario--soil crusts (or
lack thereof) having a negative impact on Lepidium species. In
addition, the commenter stated that Bromus tectorum is considered a
facultative host of arbuscular mycorrhizal fungi (AMF); however,
specific information about interactions between B. tectorum and AMF
remains unknown. For example, an invasive garlic mustard inhibits
ectomycorrhizal fungi, and is able to outcompete native plants.
Therefore, the commenter asked that the relationship between Lepidium
papilliferum, mustard oil, and L. papilliferum and B. tectorum
competition be researched before the Service concludes that B. tectorum
is outcompeting L. papilliferum.
Our Response: Evidence that Bromus tectorum is likely displacing
Lepidium 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, a seeded nonnative plant species,
and B. 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
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). The Act directs the Service to
make determinations based on the best available data at the time the
decision is being made.
(28) Comment: Regarding the statement in our proposed
reconsideration of the final rule (79 FR 8416, February 12, 2014): ``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,'' a commenter
felt this statement conflicts with what the Service proposed to do. The
commenter suggested that to extend past the bounds of our scientific
data is to venture into the realm of speculation, but the only data the
Service has was shown in table 2, and that data is based on too small a
sample size to say anything definitive about Lepidium papilliferum
population growth or decline. The commenter added that, even with the
poor survey size, there is nothing that will allow one to extrapolate
out 1 year, much less to 50 years.
Our Response: The proposed reconsideration of the final rule (79 FR
8416, February 12, 2014) did not contain a table 2. We also referred to
the October 8, 2009, final listing rule (74 FR 52014) to see whether
the commenter may have been referring to a table in that document;
however, table 2 in the 2009 rule shows a list of extant EO ranks
across the range of the species. Therefore, we are unclear to which
data the commenter is referring regarding this specific comment.
However, in response to the assertion that our decision is speculative,
we disagree. We have analyzed and assessed the known threats impacting
the species, and used the best available information to assess what
effects these threats will have on the species into the future, and
over what timeframe, in order to determine what constitutes the
foreseeable future as it relates to these threats. We believe our
analysis is reasonable and supported by the best available information.
(29) Comment: Two commenters stated that the Service did not
accurately consider the breadth of the economic impact that a listing
would have on local communities and ranchers. The commenters argued
that, despite the fact that the Service acknowledges that grazing is
not a significant threat to Lepidium papilliferum, the practical result
of a listing will be that grazing schemes will be altered, to the
detriment of the landscape and the economy.
Our Response: We acknowledge that some economic impacts are a
possible consequence of listing a species under the Act. However, the
statute does not provide for the consideration of such impacts when
making a listing decision. Section 4(b)(1)(A) of the Act specifies that
listing determinations be made ``solely on the basis of the best
scientific and commercial data available.'' Such costs are, therefore,
precluded from consideration in association with a listing
determination. The Act provides
[[Page 55082]]
for the consideration of potential economic impacts only in association
with the designation of critical habitat.
(30) Comment: The Idaho Power Company (IPC) commented that actions
the Service implements to protect Lepidium papilliferum could affect
their ability to meet future electrical energy needs, as IPC is
mandated to do, and affect ongoing operation and maintenance activities
that ensure the continued delivery of electrical energy in a safe and
reliable manner. In addition, IPC recommended that the Service consider
a number of proposed avoidance and minimization measures when
evaluating the potential effect of the Gateway West project on L.
papilliferum.
Our Response: The IPC was not specific as to what activities will
be directly impacted by the listing of Lepidium papilliferum, so we are
unable to address these concerns; however, we are committed to working
with IPC to design and manage their energy projects in ways that are
compatible with the needs of the species. Listed plant and animal
species receive protection under section 7 of the Act through the
requirements of sections 7(a)(1) and 7(a)(2). In cases where a
landowner (applicant) requests Federal agency funding or authorization
for an action that may affect a listed species, as will be the case
with multiple aspects of IPC's Gateway West project, the consultation
requirements of section 7(a)(2) of the Act apply. Under section
7(a)(2), Federal agencies must ensure, in consultation with the
Service, that any action they authorize, fund, or carry out is not
likely to jeopardize the continued existence of the species.
Also, under section 7(a)(1), all Federal agencies must utilize
their authorities in furtherance of the purposes of the Act by carrying
out programs for the conservation of listed species. If the outcome of
that consultation is a no jeopardy determination, the action can
proceed as proposed. If incidental take of a listed animal species is
anticipated as a result of that action, the action agency and the
applicant may also have to implement specific minimization measures and
reporting requirements pursuant to an Incidental Take Statement
provided with the consultation. Generally, the Service also provides
action agencies and applicants with conservation recommendations to
minimize or avoid adverse effects of the action on a listed species.
However, those recommendations are discretionary. If the outcome of the
consultation is a jeopardy determination, the Service works with the
action agency and applicant to revise the action in a manner that is
compatible with the survival and recovery needs of the listed species
and meets specific regulatory criteria that define the sideboards for
those revisions. Such revisions are referred to as ``reasonable and
prudent alternatives,'' and they are provided with the intention of
allowing the project to proceed, as stated above, in a manner that is
compatible with the survival and recovery needs of the listed species.
The Service appreciates the efforts of Federal Action agencies and
groups, such as the BLM Boise District Resource Advisory Council, in
identifying additional alternatives that avoid or minimize potential
impacts of proposed projects, such as the Gateway West Transmission
Line Project, on L. papilliferum. The Service has previously completed
a Conference Opinion regarding the potential effects of the proposed
Gateway West Transmission Line Project on L. papilliferum. We will
continue to work with BLM to determine if an additional section 7
conference is necessary for the updated Segments 8 and 9 routes
currently being considered for the Project. Both of the updated Project
segment routes continue to bisect habitat categories for L.
papilliferum. We are also available to provide technical assistance for
future renditions of the draft Mitigation and Enhancement Portfolio
associated with the updated Segment 8 and 9 route locations to ensure
that benefits for our trust resources, including species proposed or
listed under the Endangered Species Act, are maximized.
(31) Comment: The IPC went on to state that environmental monitors
will survey for and mark slickspots and aboveground populations of
Lepidium papilliferum within 50 feet of the construction area prior to
ground disturbance (including roads) in potential or occupied L.
papilliferum habitat. No construction shall occur within 50 feet of any
L. papilliferum plants or slickspots found by the environmental
monitor. Also, construction shall not occur within 50 feet of
previously known occupied L. papilliferum areas, based on Idaho Centers
for Diseases Control data, even if aboveground plants are not observed
by the environmental monitor. Within proposed critical habitat, impacts
to primary constituent elements, such as native sagebrush/forb
vegetation, will be avoided to the extent practicable. Seeding during
reclamation in areas of suitable habitat will use methods that minimize
soil disturbance such as no-till drills or rangeland drills with depth
bands. Reclamation will use certified weed-free native seed. Excess
soils will not be stored or spread on slickspots.
Our Response: As previously stated in our response to comment 30,
the Service encourages the implementation of conservation measures that
avoid or minimize adverse effects to species proposed or listed under
the ESA. On September 12, 2013, the Service completed section 7
conference on the effects of the proposed Gateway West Transmission
Line Project on Lepidium papilliferum, inclusive of the conservation
measures listed by the commenter. The Gateway West Transmission Line
Project Conference Opinion states that ``Factors that may affect L.
papilliferum and its habitat in the Project action area related to
Project construction, operations, maintenance, and decommissioning
activities include occasional damage to or loss of individual L.
papilliferum plants (including seeds) that cannot be avoided, damage to
or loss of some individual slickspot microsites that cannot be avoided,
unintentional fire ignition, Project-generated dust and soil movement,
removal of some remnant native vegetation, and the potential
introduction or spread of invasive nonnative plants.'' While
conservation measures incorporated into the Project design are expected
to avoid or minimize some adverse effects to the species, adverse
effects, including loss of habitat, are still expected to occur
associated with this Project. It is uncertain to what extent the final
update of Segments 8 and 9 for the Project will avoid or further
minimize adverse effects to L. papilliferum and its proposed critical
habitat.
Determination
We have carefully assessed the best scientific and commercial data
available regarding the present and future threats to the species, and
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 it requires for survival 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 negatively affected by wildfire. The primary threats
to the species are the effects of wildfire and invasive nonnative
plants,
[[Page 55083]]
especially Bromus tectorum. As stated in our October 8, 2009, final
listing rule (74 FR 52014), we 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 its
range, 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.
The best available scientific information indicates that all the
significant threats described in the October 8, 2009, final listing
rule (74 FR 52014) and in 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, the further
expansion of Owyhee harvester ants that are positively correlated to
the resulting increase in grass cover. Although conservation measures
to address some of these threat factors have been thoroughly considered
by the Service, effective controls to address the increased frequency
of wildfire and to eradicate the expansive infestation of nonnative
plants throughout the range of Lepidium papilliferum are not currently
available, and either are not likely to be available within the
foreseeable future or have not yet been shown to be sufficiently
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.
As found in our October 8, 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, and, therefore, does
not meet 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 43 to 48 years, when 80 to 90 percent of its remaining
habitat will have been affected, based on the observed 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 also reasonably and reliably predict that this
rate will continue into the future at least until the point when no
unburned habitat for the species remains, which is currently estimated
at approximately 50 years.
Therefore, we conclude that 50 years represents a minimum estimate
of the foreseeable future for the primary threat of wildfire. We can
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 43 to 48
years, which is within the foreseeable future as we have defined it for
the species. Therefore, we conclude that, under the Act, threatened
status should be reinstated for L. papilliferum throughout all of its
range, and reaffirm its inclusion in the Federal List of Endangered and
Threatened Plants.
Required Determinations
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 (NEPA; 42 U.S.C. 4321 et seq.), need not be
prepared in connection with listing a species as an endangered or
threatened species under the Endangered Species Act. We published a
notice outlining our reasons for this determination in the Federal
Register on October 25, 1983 (48 FR 49244).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes.
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
1973, as amended (16 U.S.C. 1531 et seq.).
[[Page 55084]]
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as follows:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
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. Amend Sec. 17.12(h) by adding the following entry to the List of
Endangered and Threatened Plants in alphabetical order under Flowering
Plants:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Scientific name Common name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Lepidium papilliferum........... Slickspot Wherever found.... T................. 74 FR 52013; 10/8/
peppergrass. 2009
81 FR [Insert
Federal Register
page where the
document begins];
8/17/2016
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
Dated: May 31, 2016.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016-19528 Filed 8-16-16; 8:45 am]
BILLING CODE 4333-15-P