[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





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





 Fish and Wildlife Service





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





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  

[[Page 55058]]


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

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.

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

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).

[[Page 55061]]

    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