[Federal Register Volume 87, Number 22 (Wednesday, February 2, 2022)]
[Proposed Rules]
[Pages 5767-5778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02041]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2018-0055; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BD17


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for Chapin Mesa Milkvetch and Designation of Critical Habitat; 
Withdrawal

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; withdrawal.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), withdraw the 
proposed rule to list the Chapin Mesa milkvetch (Astragalus schmolliae) 
as a threatened species under the Endangered Species Act of 1973, as 
amended (Act). We concurrently withdraw the proposed rule to designate 
critical habitat for the species. This withdrawal is based on our 
conclusion that the conservation plan for Chapin Mesa milkvetch at Mesa 
Verde National Park, and its associated implementation plan, in 
addition to new standard operating procedures for fire management at 
Mesa Verde National Park, reduce the threats to the species such that 
it no longer meets the Act's definition of an ``endangered species'' or 
a ``threatened species.'' Therefore, we are withdrawing our proposal to 
list the Chapin Mesa milkvetch as a threatened species and our proposal 
to designate critical habitat for the species.

DATES: The proposed rule that published on September 17, 2020 (85 FR 
58224), to list the Chapin Mesa milkvetch as a threatened species and 
to designate critical habitat for the Chapin Mesa milkvetch is 
withdrawn on February 2, 2022.

ADDRESSES: Relevant documents used in the preparation of this 
withdrawal are available on the internet at http://www.regulations.gov 
at Docket No. FWS-R6-ES-2018-0055.

FOR FURTHER INFORMATION CONTACT: Ann Timberman, Western Colorado Field 
Supervisor, U.S. Fish and Wildlife Service, Colorado Ecological 
Services Office, 445 West Gunnison Ave., Suite 240, Grand Junction, CO 
81501; telephone 970-243-2778. Persons who use a telecommunications 
device for the deaf may call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Previous Federal Actions

    On September 17, 2020, we proposed to list Chapin Mesa milkvetch as 
a threatened species under the Act (16 U.S.C. 1531 et seq.), and to 
designate critical habitat (85 FR 58224). Please refer to that proposed 
rule for a detailed description of previous Federal actions concerning 
Chapin Mesa milkvetch prior to 2020. The September 17, 2020, proposed 
rule had a 60-day comment period, ending November 16, 2020. During this 
public comment period, we invited the public to comment on the proposed 
rule in light of draft conservation plans for the species from Mesa 
Verde National Park (Park) and the Ute Mountain Ute Tribe. Since 
publication of the proposed rule, the Park provided supplemental 
information to their plan that allowed the Service to conclude the plan 
is sufficiently certain to be implemented and effective, and we 
consider this in making our final listing determination, in accordance 
with the Policy for Evaluation of Conservation Efforts When Making 
Listing Decisions (PECE) (68 FR 15100; March 28, 2003).

Supporting Documents

    Prior to publishing the proposed listing rule (85 FR 58224; 
September 17, 2020), we conducted a species status assessment (SSA) for 
the Chapin Mesa milkvetch, with input and information provided by the 
Park, the Colorado Natural Heritage Program, and the Ute Mountain Ute 
Tribe. The results of this assessment are summarized in an SSA report, 
which represents a compilation of the best scientific and commercial 
data available concerning the status of the species, including the 
past, present, and future stressors to this species (Service 2021a, 
entire). Additionally, the SSA report contains our analysis of required 
habitat and the existing conditions of that habitat. After

[[Page 5768]]

publication of the September 17, 2020, proposed listing rule, we 
updated the SSA with newly available information, including the latest 
precipitation data and updated values for seedling survival in the 
burned subunit of the Chapin Mesa representative unit (Service 2021a, 
entire).
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we sought the expert opinions of six 
appropriate subject matter specialists regarding our SSA report for 
Chapin Mesa milkvetch. We received responses from five specialists. We 
incorporated the results of this peer review process into the final SSA 
report, which informed the underlying analysis and scientific basis for 
this finding.

Summary of Comments and Recommendations

    As stated above under Previous Federal Actions, on September 17, 
2020, we published a proposed rule to list Chapin Mesa milkvetch as a 
threatened species under the Act, and to designate critical habitat (85 
FR 58224). The proposed rule had a 60-day comment period, ending 
November 16, 2020. We also contacted appropriate State, Federal, and 
Tribal agencies and other interested parties and invited them to 
comment on the proposal. A newspaper notice inviting general public 
comment was published in The Journal, a newspaper servicing Cortez, 
Mancos, and Dolores, Colorado. We also sought peer review on the SSA 
report (see Supporting Documents, above). All substantive information 
regarding the listing of Chapin Mesa milkvetch that was provided during 
peer reviews and the comment period has been incorporated directly into 
this final determination or into our SSA report, as appropriate, or is 
addressed below. Comments concerning the proposed critical habitat 
designation for the species are not addressed here; given the decision 
to withdraw the listing proposal, no further assessment of the proposed 
critical habitat designation is necessary at this time.

Peer Review Comments

    We reviewed all comments we received from the peer reviewers for 
substantive issues and new information regarding Chapin Mesa milkvetch. 
The peer reviewers provided additional information, clarifications, and 
suggestions to improve the SSA report, which we incorporated directly 
into the SSA report, or address in the responses to comments below. We 
only address substantive comments from these reviewers below; we 
resolved minor editorial comments in the text of the SSA report.
    (1) Comment: One reviewer suggested that we needed more detail to 
describe the methods researchers used to collect the monitoring data we 
include in the SSA report.
    Our Response: The purpose of the SSA is to gather and compile 
information on the status of this species in order to assess its 
current condition and project the species' future condition. Adding 
detailed information on the monitoring methodologies our partners use 
is not necessary to assess the current and future conditions for this 
species in the SSA report, because these methods are adequately 
described in other papers. More details on monitoring methods are 
available in Anderson (2004), Rondeau et al. (2016), and Rondeau 
(2017), which are cited throughout our SSA report.
    (2) Comment: Some reviewers commented that we needed to incorporate 
additional quantitative data, as qualitative data cannot answer the 
questions that are most relevant to ensuring persistence and survival 
of the species.
    Our Response: Section 4 of the Act directs the Service to make 
determinations on whether any species is an endangered or a threatened 
species ``solely on the basis of the best scientific and commercial 
data available'' (16 U.S.C. 1533(b)(1)(A)). In the SSA, we used 
quantitative data when available, but, in some cases, qualitative data 
is the best available information. We used this quantitative and 
qualitative data to evaluate multiple metrics relevant to assessing the 
resiliency of each representative unit. In the case of Chapin Mesa 
milkvetch, given limited availability of quantitative data, we 
evaluated the level of intact native understory and presence of exotic 
plants qualitatively. However, even with qualitative evaluations for 
these metrics, we were able to evaluate the resiliency of each 
representative unit and summarize the current and future viability of 
the species (Service 2021a, pp. 32-41); we acknowledge the 
uncertainties inherent in this method in the SSA (Service 2021a, p. 
33). These evaluations of current and future viability, which were 
based on the best available scientific data, informed our determination 
of species' status.
    (3) Comment: One reviewer expressed concern that the only 
monitoring data included in the SSA report are from monitoring that has 
occurred on Chapin Mesa, and therefore does not cover the entire range 
of the species.
    Our Response: We agree that monitoring information from the rest of 
the species' range would be useful. However, section 4 of the Act 
directs the Service to make determinations whether any species is an 
endangered or a threatened species ``solely on the basis of the best 
scientific and commercial data available'' (16 U.S.C. 1533(b)(1)(A)). 
Monitoring data from other representative units are not available to us 
at this time.
    (4) Comment: One reviewer commented that the SSA has no discussion 
of current or future conservation actions being implemented.
    Our Response: When the SSA report was originally written (2018), we 
were not aware of any ongoing conservation actions. Following the 
completion of the first version of the SSA report, draft conservation 
plans from the Park and the Ute Mountain Ute Tribe became available 
that discussed future conservation activities. However, we had not yet 
evaluated these plans under our PECE policy, and the Park had not yet 
completed its implementation plan. We have since updated our discussion 
of conservation efforts in the SSA to incorporate relevant ongoing 
conservation activities and information from the Park's conservation 
plan and implementation plan for Chapin Mesa milkvetch at Mesa Verde 
National Park; these conservation efforts also informed updated 
analysis on species' status in this notice, in accordance with the 
provisions of the PECE policy (Service 2021b, entire).
    (5) Comment: One reviewer commented that Anderson (2004) includes a 
plausible boundary for the population south of the Park based on 
records and observations in the Ute Mountain Ute Tribal Park.
    Our Response: The Anderson (2004) plausible boundary on Ute 
Mountain Ute Tribal land was determined using an element occurrence 
record from the Colorado Natural Heritage Program from 1987, and was 
adapted to include major landscape features and jurisdictional 
boundaries, because surveyors were not granted access to Ute Mountain 
Ute land to conduct formal surveys. In order to accurately update or 
expand this element occurrence record polygon for the Ute Mountain Ute 
Tribal Park representative unit, we would need additional surveying on 
Tribal lands and access to survey results. These data are not available 
to us at this time; therefore, we consider the polygon used in the SSA 
report to represent the best available scientific information on the

[[Page 5769]]

location of the species on Ute Mountain Ute Tribal lands.
    (6) Comment: One reviewer suggested that the use of herbarium 
specimens could confirm the historical distribution of the species, as 
several regional herbaria hold specimens of Chapin Mesa milkvetch 
collected prior to the 1945 description.
    Our Response: We agree that such information could further confirm 
our existing understanding of the historical distribution of this 
species. However, the peer reviewer noted that the SSA's description of 
historical distribution, which was based on information from sources 
other than these herbarium records, was accurate, even without 
consideration of these early herbarium specimens. These early specimens 
were all collected from within or near Mesa Verde National Park, so 
they only further confirm the accuracy of the information we cited from 
other sources regarding where the species historically occurred. Thus, 
referencing these herbarium specimen is not necessary in our SSA since 
this additional detail would not have changed our understanding of the 
species' range and viability.
    (7) Comment: One reviewer commented that the reference to a 
personal communication from Clow (2017, pers. comm.) implies that 
survey work has been done recently on Ute Mountain Ute land.
    Our Response: The Tribe has communicated to us that Chapin Mesa 
milkvetch is present on Tribal land and we know that they have begun to 
conduct surveys on their Tribal lands; however, no survey data were 
provided to us for the SSA report or this final determination.
    (8) Comment: One reviewer suggested including information from 
literature on other species in the genus Astragalus, as many of the 
references used in the SSA report are not peer-reviewed, nor publicly 
available.
    Our Response: For the purposes of the SSA report, we considered 
references that are specific to Chapin Mesa milkvetch to be the best 
available information, even though some were not peer-reviewed. We 
considered information on closely related species, where applicable. We 
have reviewed and considered the suggested references on the Astragalus 
genus. Most of the references provided insights into other narrow 
endemics that were not closely related to Chapin Mesa milkvetch. 
However, one species, Astragalus microcymbus, occurs nearby and 
exhibits prolonged dormancy, like Chapin Mesa milkvetch; as such, we 
added this citation to the SSA report.
    (9) Comment: One reviewer suggested including additional climate-
related information from the Climate Change Vulnerability Assessments 
developed by the Colorado Natural Heritage Program and the Bureau of 
Land Management (CNHP 2021).
    Our Response: Because the species only occurs on Mesa Verde 
National Park and the Ute Mountain Ute Tribal Park, we used climate 
data specific to this region; therefore, we consider the information we 
used in the SSA report to be the best available scientific information 
on downscaled climate impacts. For more information on the climate 
change analysis we considered, see the discussion of future climate 
projections under Summary of Biological Status and Threats, below.
    (10) Comment: One reviewer requested that we add more detailed 
information about proposed fire management activities.
    Our Response: We have included a table in section 3.1 of the SSA 
report that describes existing and proposed impacts from fire 
management activities in Mesa Verde National Park (Service 2021a, pp. 
19-22).
    (11) Comment: One reviewer commented that post-fire mitigation 
could influence Chapin Mesa milkvetch if mitigation is conducted with 
herbicides on a large scale.
    Our Response: We consider the effects of post-fire herbicide 
application in Appendix A of the SSA report. While direct effects from 
herbicide use have occurred to individual Chapin Mesa milkvetch plants 
in the past, there has not been evidence of population-level effects. 
Additionally, the Park currently does not use herbicides on a large 
scale (NPS 2018, p. 11). Therefore, we do not consider herbicides to be 
a major driver of the species' condition and do not discuss them 
further in the SSA report. For more detail on herbicides, see Appendix 
A of the SSA report.

Public Comments

    We received several comments in support of listing Chapin Mesa 
milkvetch and designating critical habitat for the species. These 
comments offered general support but did not provide additional 
information for us to consider in our final listing decision. We 
address substantive comments we received from public commenters below.
    (12) Comment: The Ute Mountain Ute Tribe provided a comment stating 
their commitment to taking an active role in conservation and asked the 
Service to recognize the Tribe's right to manage plants and wildlife on 
Tribal lands. The Tribe also requested that the Service review their 
``Conservation Plan for the Chapin Mesa Milkvetch (Astragalus 
schmolliae)'' (Ute Mountain Ute Tribe 2020, entire). The Tribe also 
provided a list of conservation efforts that they have undertaken that 
benefit the species.
    Our Response: As requested, we reviewed the Tribal ``Conservation 
Plan for the Chapin Mesa Milkvetch (Astragalus schmolliae)'' (Tribal 
Plan). We commend the Tribe's commitment to conservation and appreciate 
the efforts they have already undertaken to aid the species. We find 
that this Tribal Plan, if implemented, would likely provide benefit to 
the species; although, due to uncertainty in future levels of 
implementation and effectiveness, future conservation efforts outlined 
in the Tribal Plan were not considered in our final listing decision. 
We do, however, recognize and value the conservation actions that the 
Ute Mountain Ute Tribe has already completed and is currently 
implementing to conserve this species, and we incorporated 
consideration of these activities in our final listing determination.
    (13) Comment: One commenter provided a comment in support of 
listing the species as endangered rather than threatened. They 
indicated that, as the species has only one potentially viable 
population that could be wiped out by a single catastrophic event 
(i.e., fire, fuel spill, illegal grazing) and as the species has low 
adaptability, the Service should list it as an endangered species 
rather than a threatened species.
    Our Response: An ``endangered species'' is defined by the Act as 
any species which is in danger of extinction throughout all or a 
significant portion of its range. Our determination about whether 
Chapin Mesa milkvetch warrants listing as endangered was informed by 
our analysis of the species' current condition in our SSA, rather than 
the projected future condition of the species, because the definition 
of an ``endangered species'' states that the species is in danger of 
extinction now. The species currently has a large representative 
subunit (the unburned Chapin Mesa subunit) that is considered highly 
resilient. Additionally, the species currently has more than one extant 
population; all four representative units are currently in moderate 
condition, providing for some additional redundancy and adaptive 
capacity. Therefore, we determine that the current risk of extinction 
is low, and the species is not currently in danger of extinction 
throughout its range. For more information on our determination that 
Chapin Mesa milkvetch does not

[[Page 5770]]

meet the Act's definition of an ``endangered species,'' see 
Determination of Species Status, below.
    However, even when we examine the projected future condition of the 
species, in light of the new information in the Park's conservation 
plan for Chapin Mesa milkvetch at Mesa Verde National Park, associated 
implementation plan, and wildfire emergency response procedure, we now 
find that Chapin Mesa milkvetch does not warrant listing as a 
threatened species under the Act. First, we conclude it is not 
plausible that a fuel spill or illegal grazing could occur to such an 
extent that it extirpates the entire Chapin Mesa milkvetch 
representative unit, particularly given its protected location on 
National Park and Tribal Park lands. Thus, we did not consider these 
stressors as part of our plausible future scenarios. Additionally, 
based on the Park's commitments to maintain and restore pinyon-juniper 
overstory, to conduct fire management such that it reduces the risk of 
catastrophic wildfire in the Park while also minimizing impacts to the 
species, and to quickly suppress fire, the resiliency, redundancy, and 
representation of Chapin Mesa milkvetch, including the resiliency of 
the Chapin Mesa representative unit, will likely remain the same or 
better than current condition into the foreseeable future; thus, the 
risk of extinction remains low for Chapin Mesa milkvetch into the 
foreseeable future. Therefore, after assessing the best available 
information, we conclude that Chapin Mesa milkvetch is not in danger of 
extinction throughout all of its range nor is it likely to become so in 
the foreseeable future. For more information on our determination that 
Chapin Mesa milkvetch does not meet the Act's definition of a 
``threatened species,'' see Determination of Species Status, below.

Background

    A thorough review of the taxonomy, range and distribution, life 
history, and ecology of the Chapin Mesa milkvetch is presented in the 
SSA report (Service 2021a, pp. 3-14; available at http://www.regulations.gov at Docket No. FWS-R6-ES-2018-0055) and is briefly 
summarized here. Chapin Mesa milkvetch is a narrow endemic, upright, 
perennial herb primarily found on the tops of mesas in southwestern 
Colorado in Montezuma County on land administered by the National Park 
Service (NPS) and the Ute Mountain Ute Tribe. Chapin Mesa milkvetch is 
a member of the family Fabaceae (legume family) and was known by the 
common name Schmoll's milkvetch prior to 2015. The stems of Chapin Mesa 
milkvetch are purplish below, green above, tall (45 to 60 centimeters 
(cm) (18 to 24 inches)), branching from the base, with short, stiff, 
appressed hairs (lying closely and flatly against the plant's surface) 
on the foliage. Leaves are pinnate with 11 to 13 linear leaflets, 1 to 
2 millimeters (0.04 to 0.08 inches) wide, and 1 to 3 cm (0.4 to 0.8 
inches) long. Flowers are yellowish-white or cream colored, and 12 to 
13 cm (4.7 to 5.1 inches) long with bracts that extend under the flower 
that have black hairs. The distinguishing characteristic of the species 
is the leathery pod (Service 2021a, pp. 3-4).
    Chapin Mesa milkvetch plants emerge in early spring and usually 
begin flowering in late April or early May. Flowering continues into 
early or mid-June; fruit set begins in late May and occurs through 
June; and, by late June, most fruits, while still attached to the 
plant, have opened and released their seeds (Service 2021a, p. 6). 
During very dry years, like many other Astragalus species, the plants 
can remain dormant with no above-ground growth (Colyer 2003 in Anderson 
2004, p. 11). Chapin Mesa milkvetch requires pollination by insects to 
set fruit; the flowers require a strong insect for pollination because 
the insect must force itself between the petals of the papilionaceous 
(butterfly-shaped) flowers (Green 2012, p. 2).
    The emergence and density of Chapin Mesa milkvetch are strongly 
tied to winter precipitation. Years with ``wet'' winters (precipitation 
falling primarily as snow) precede high density counts, and years with 
dry winters translate to low or no emergence (Rondeau 2017, p. 3). 
Climate requirements for seedling emergence and survival are not well 
known; however, we infer that spring moisture is also critical, as 
seedling survival relies on growing deep roots quickly (Rondeau 2017, 
p. 9). It is likely that winter moisture coupled with winter 
temperature is also important for seedlings due to available soil 
moisture for seedling survival (Rondeau 2017, p. 16).
    Chapin Mesa milkvetch's global distribution is constrained almost 
entirely to the Chapin Mesa within the Park and the Ute Mountain Ute 
Tribal Park in southern Colorado, with some outlying areas on 
neighboring Park Mesa and West Chapin Spur, both of which are within 
the boundaries of the Park (Rondeau 2017, p. 1). Chapin Mesa milkvetch 
habitat occupies approximately 2,000 acres (ac) (809 hectares (ha)) in 
the Park (CNHP 2010, pp. 12-19; Anderson 2004, pp. 25, 30). While the 
species has been observed on the Ute Mountain Ute Tribal Park, we do 
not know how much occupied habitat occurs there.
    The habitat for Chapin Mesa milkvetch is dense pinyon-juniper 
woodland of mesa tops, with deep, reddish, loess soil (Service 2021a, 
p. 7). Pinyon-juniper trees are easily killed by fires and are slow to 
regenerate (Romme et al. 2003, p. 344.). The historical fire regime of 
the pinyon-juniper woodlands on the mesa tops of the Mesa Verde area is 
characterized by lightning-caused, infrequent (around a 400-year 
rotation), stand-replacing fires, as opposed to low-severity, stand-
thinning fires (Romme et al. 2003, p. 338; Floyd et al. 2004, p. 286).
    The best available information indicates that the species consists 
of one large, interconnected population. Like many rare plants, Chapin 
Mesa milkvetch is globally rare, but is locally abundant throughout its 
occupied habitat (Rondeau 2017, p. 1). Regular monitoring has occurred 
in the Park since 2001 in established monitoring plots; however, the 
best available scientific information does not allow estimating a 
global population size or overall population density (Service 2021a, p. 
4). The existing monitoring reports provide insights into the levels of 
seedling survival in the Chapin Mesa representative unit, which we used 
to characterize resiliency in the SSA (Rondeau 2020, entire). They also 
provide information on the relationship between fire, seasonal 
precipitation, and various demographic characteristics (e.g., plant 
density and recruitment), which furthered our understanding of how and 
when wildfire impacts the plant (Rondeau 2020, entire). Finally, these 
monitoring reports provide information on plant density over time; 
levels of germination over time; amount of fruit production over time; 
age class ratios; and mortality rates over time in certain parts of the 
species' range (Rondeau 2020, entire).

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species is an ``endangered species'' or a ``threatened 
species.'' The Act defines an ``endangered species'' as a species that 
is in danger of extinction throughout all or a significant portion of 
its range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an

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``endangered species'' or a ``threatened species'' because of any of 
the following five factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the expected response by the species, 
and the effects of the threats--in light of those actions and 
conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species, then analyze the cumulative effect of all of 
the threats on the species as a whole. We also consider the cumulative 
effect of the threats in light of those actions and conditions that 
will have positive effects on the species, such as any existing 
regulatory mechanisms or conservation efforts. The Secretary determines 
whether the species meets the definition of an ``endangered species'' 
or a ``threatened species'' only after conducting this cumulative 
analysis and describing the expected effect on the species now and in 
the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Service can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction (see 84 FR 45020, August 27, 2019, p. 45027). Thus, a 
prediction is reliable if it is reasonable to depend on it when making 
decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics (50 CFR 424.11(d)). Data that are typically relevant to 
assessing the species' biological response include species-specific 
factors such as lifespan, reproductive rates or productivity, certain 
behaviors, and other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent a decision by 
the Service on whether the species should be listed as an endangered or 
threatened species under the Act. However, it does provide the 
scientific basis that informs our regulatory decisions, which involve 
the further application of standards within the Act and its 
implementing regulations and policies. The following is a summary of 
the key results and conclusions from the SSA report; the full SSA 
report can be found at Docket No. FWS-R6-ES-2018-0055 on http://www.regulations.gov.
    To assess Chapin Mesa milkvetch's viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency supports the ability of the species to withstand 
environmental and demographic stochasticity (for example, wet or dry, 
warm or cold years), redundancy supports the ability of the species to 
withstand catastrophic events (for example, droughts, large pollution 
events), and representation supports the ability of the species to 
adapt over time to long-term changes in the environment (for example, 
climate changes). In general, the more resilient and redundant a 
species is and the more representation it has, the more likely it is to 
sustain populations over time, even under changing environmental 
conditions. Using these principles, we identified the species' 
ecological requirements for survival and reproduction at the 
individual, population, and species levels, and described the 
beneficial and risk factors influencing the species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the species' life-history needs at 
the individual, population, and species level. The next stage involved 
an assessment of the historical and current condition of the species' 
demographics and habitat characteristics, including an explanation of 
how the species arrived at its current condition. The final stage of 
the SSA involved making predictions about the species' responses to 
positive and negative environmental and anthropogenic influences. 
Throughout all of these stages, we used the best available information 
to characterize viability as the ability of a species to sustain 
populations in the wild over time. We use this information to inform 
our regulatory decision.

Summary of Biological Status and Threats

    Below, we review the biological condition of the species and its 
needed resources, as well as stressors and conservation efforts that 
influence its condition, to assess the species' overall viability and 
the risks to that viability. To evaluate the biological status of the 
Chapin Mesa milkvetch both currently and into the future, we assessed a 
range of conditions to consider the species' resiliency, redundancy, 
and representation. Because Chapin Mesa milkvetch is considered to 
consist of one large population, for the purposes of our analysis, we 
divided the range of Chapin Mesa milkvetch into four representative 
units, which are further broken down into subunits (Service 2021a, p. 
24). The Chapin Mesa milkvetch needs multiple, sufficiently resilient 
subunits distributed across its range to maintain populations into the 
future and to avoid extinction (Service 2021a, pp. 7-13).
    We evaluated a number of stressors with the potential to influence 
the

[[Page 5772]]

health and resiliency of Chapin Mesa milkvetch populations, such as 
competition with nonnative, invasive plant species (i.e., cheatgrass, 
musk thistle, etc.); wildfire; drought; fire management activities; 
development of infrastructure; trampling; herbivory; and effects of 
climate change (Service 2021a, pp. 13-22). We found that the primary 
drivers influencing the species' condition are the increased frequency 
of large, high-intensity wildfires; increasing presence of invasive, 
nonnative plants, especially cheatgrass; and the interaction between 
these elements, as explained further under Summary of Factors 
Influencing Viability, below, and in the SSA report (Service 2021a, pp. 
27-33).
    As described above, we divided the range of Chapin Mesa milkvetch 
into four representative units (Chapin Mesa, West Chapin Spur, Park 
Mesa, and Ute Mountain Ute Tribal Park) (Service 2021a, p. 24). We 
considered representative units to be most resilient when (1) they do 
not contain nonnative, invasive species or infrastructure development; 
(2) the unit has sufficient pinyon-juniper canopy cover and intact 
native understory; (3) seedling survival is sufficient in the unit; and 
(4) winter and spring precipitation levels are sufficient in the unit 
(Service 2021a, pp. 24-33). Our analysis found that all four Chapin 
Mesa milkvetch analysis units currently have moderate levels of 
resiliency, with one large, unburned subunit in good condition.
    Given our uncertainty regarding the future effects of climate 
change, as well as the other stressors, we projected the future 
resiliency, redundancy, and representation of Chapin Mesa milkvetch 
under three plausible future scenarios. Our three future scenarios 
incorporate three climate scenarios developed by the North Central 
Climate Science Center in Fort Collins, Colorado, for the San Juan 
Basin in southwestern Colorado: (1) Hot and dry, (2) moderately hot, 
and (3) warm and wet (Rondeau et al. 2017, Appendix D, pp. 15-21). 
``Wet'' winters are correlated with high Chapin Mesa milkvetch density 
counts, while dry winters translate to low or no emergence of Chapin 
Mesa milkvetch in the spring (Rondeau 2017, p. 15). Data collected over 
14 years of monitoring reveal a strong correlation between winter 
precipitation (as snow) and the density of Chapin Mesa milkvetch plants 
(Rondeau 2017, p. 15). However, climate change models forecast warmer 
temperatures and a decrease in precipitation, or change in the timing 
and type of precipitation, as compared to historical levels, by 2035 
and through the end of the century (Rondeau et al. 2017, Appendix D, 
pp. 15-21; Service 2021a, pp. 34-35).
    We evaluated each of our three future scenarios in terms of how it 
would be expected to impact resiliency, redundancy, and representation 
of the species by the year 2035. We selected the year 2035 for our 
evaluation of future scenarios based on available climate projections 
specific to the San Juan Basin in southwestern Colorado, where Chapin 
Mesa milkvetch habitat occurs, and based on available analyses on the 
response of pinyon-juniper communities to these climate changes. These 
climate models used downscaled data that model the range of plausible 
future climate conditions for the region to project changes in certain 
climate variables over time, predict the impact of these changes in 
climate variables on wildfire frequency and extent, and illustrate the 
impact of these climate changes and increased wildfire risk on the 
specific pinyon-juniper communities that support Chapin Mesa milkvetch 
under three climate scenarios (i.e., (1) hot and dry, (2) moderately 
hot, and (3) warm and wet) (Rondeau et al, 2017, pp. 9-11; Appendix D, 
pp. 15-21). However, these downscaled analyses provided insight into 
the threat of wildfire and the response of pinyon-juniper communities 
only through the year 2035 (pp. 9-11).
    Under the same three climate scenarios, trends for temperature and 
precipitation projected through 2035 will continue through 2100 in 
southwestern Colorado (Appendix C, pp. 11-14); climate conditions could 
still range from warm and wet to hot and dry by 2100 (Rondeau et al. 
2017, Appendix C, pp. 11-14). More specifically, all three climate 
scenarios predict conditions will warm even further by 2100, although 
the extent to which the climate could warm by the end of the century 
varies between scenarios (Rondeau et al. 2017, Appendix C, pp. 12-13). 
Like the projections of climate conditions for 2035, these projections 
of climate conditions through 2100 present uncertainty as to the extent 
that precipitation patterns could change, with some scenarios 
predicting wetter conditions and others predicting drier conditions 
(Rondeau et al. 2017, Appendix C, p. 14). While projections for 
temperature and precipitation in southwestern Colorado are available 
further into the future than 2035, we do not know specifically how 
these conditions could alter wildfire frequency or extent in pinyon-
juniper communities in southwestern Colorado nor how these communities 
would respond to these climate conditions by the end of the century. 
Thus, the best available information on how potential future climate 
conditions could affect the specific ecological communities on which 
Chapin Mesa milkvetch depends consider this ecological response only 
through 2035 (Rondeau et al. 2017, pp. 9-11). Given the uncertainties 
regarding wildfire risk and species' response past 2035, future 
conditions further into the 21st century are less reliable and 
foreseeable (see 84 FR 45020, August 27, 2019, p. 45027). We can, 
however, make reliable predictions about the threats to and response of 
Chapin Mesa milkvetch through 2035.
    The future scenarios we evaluated for Chapin Mesa milkvetch through 
2035 are as follows (scenarios are discussed in greater detail in the 
SSA report (Service 2021a, pp. 34- 36)):
     Scenario 1 (``Optimistic''): Continuation of the current 
land management conditions under a ``warm and wet'' future climate 
change model;
     Scenario 2 (``Moderate''): Slight increase in fire 
management activities (i.e., fuels reduction) and infrastructure 
development under a ``moderately hot'' future climate change model; and
     Scenario 3 (``Pessimistic''): Significant increase in fire 
management activities and infrastructure development under a ``hot and 
dry'' future climate change model.
    Based on our analysis of future condition, the ``Pessimistic'' 
scenario is the only scenario under which resiliency could decrease for 
the species within the foreseeable future, primarily due to the 
increased risk of wildfire. Having a greater number of self-sustaining 
units distributed across the known range of the species is associated 
with an overall higher viability of the species into the future, as it 
increases redundancy. We anticipate that the largest Chapin Mesa 
milkvetch representative unit, Chapin Mesa, will continue to be 
occupied under all three future scenarios, but with reduced levels of 
resiliency under the ``Pessimistic'' scenario (Service 2021a, pp. 37-
41). This species inherently has, and has likely always had, a low 
level of redundancy and representation due to its endemism. Because 
there is only one large representative unit (Chapin Mesa) and three 
very small representative units (West Chapin Spur, Park Mesa, and Ute 
Mountain Ute Tribal Park), this species is at some risk from stochastic 
and catastrophic events and may have low adaptability to changing 
conditions (Service 2021a, p. 41). These future resiliency, redundancy, 
and representation projections in the SSA also do not take into account 
the

[[Page 5773]]

potential mitigating effects of the Park's conservation efforts, which 
we discuss in additional detail below.
    The SSA report (Service 2021a, entire) contains a more detailed 
discussion of our evaluation of the biological status of the Chapin 
Mesa milkvetch and the influences that may affect its continued 
existence. Our conclusions are based upon the best available scientific 
and commercial data.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the species. To assess the current and 
future condition of the species, we undertake an iterative analysis 
that encompasses and incorporates the threats individually and then 
accumulates and evaluates the effects of all the factors that may be 
influencing the species, including threats and conservation efforts. 
Because the SSA framework considers not just the presence of the 
factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative effects analysis.

Summary of Factors Influencing Viability

    As mentioned above under Regulatory Framework, 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. Potential 
stressors to the Chapin Mesa milkvetch that we evaluated include 
invasive, nonnative plants (Factor A); wildfires (Factor A); post-fire 
mitigation (Factor A); wildfire and fuels management (Factor A); 
trampling and herbivory (Factors A and C); development of 
infrastructure (Factor A); drought (Factor A and Factor E); and effects 
of climate change (Factor A and Factor E) (Service 2021a, pp. 13-22). 
There is no evidence that overutilization (Factor B) of Chapin Mesa 
milkvetch, disease (Factor C), or other natural or manmade factors 
affecting the species (Factor E) are occurring. Existing regulatory 
mechanisms (Factor D) are discussed further below.
    We evaluated each potential stressor, including its source, 
affected resources, exposure, immediacy, geographic scope, magnitude, 
and impacts on individuals and populations, and our level of certainty 
regarding this information, to determine which stressors were likely to 
be drivers of the species' current condition (Service 2021a, Appendix 
A). Our analysis found that the primary drivers of Chapin Mesa 
milkvetch current and future condition are the increased frequency of 
large, high-intensity wildfires; increasing presence of invasive, 
nonnative plants, especially cheatgrass; and the interaction between 
these elements, as explained further in the SSA report (Service 2021a, 
pp. 14-33). We offer a summary of the analysis here.
    Invasive, nonnative plants compete with Chapin Mesa milkvetch for 
space, nutrients, and water, and their invasion has been facilitated by 
the increased frequency of burns, as well as the creation of fire 
breaks, that has occurred within Chapin Mesa milkvetch habitat (CNHP 
2006, p. 4). Wildfire affects Chapin Mesa milkvetch and its habitat by 
eliminating the fire-sensitive pinyon-juniper woodlands and native 
understory that the species needs (Service 2021a, p. 15), thereby 
opening up habitat to be colonized by nonnative grasses and clonal 
shrub species. Pinyon-juniper woodlands that have been burned 
extensively by wildfires in the past two decades are being replaced by 
significant invasions of nonnative species (Floyd et al. 2006, p. 1). 
Cheatgrass was not found in unburned woodland monitoring plots, whereas 
cheatgrass invasion ranges from 8 to 58 percent cover in the burned 
monitoring plots (Rondeau 2017, p. 11). We do not have percent cover 
information on other invasive species within Chapin Mesa milkvetch 
habitat at this time. The abundance of grasses, especially cheatgrass, 
western wheatgrass (Pascopyrum smithii), and smooth brome (Bromus 
inermis), within the species' habitat is outside the natural range of 
variation, resulting in a lack of bare ground and biological soil 
crust, preventing natural succession or return to the pinyon-juniper 
woodland habitat that Chapin Mesa milkvetch needs, and also reducing 
the reproductive vigor of Chapin Mesa milkvetch (Rondeau 2017, pers. 
comm.).
    Cheatgrass and other invasive, nonnative plant species have already 
invaded different parts of the species' range to varying degrees. Five 
large, high-intensity fires have occurred in the Park and on a large 
portion of the adjacent Mesa Verde cuesta (i.e., long, sloping ridge) 
in the last two decades (Floyd et al. 2004, pp. 270, 283). A total of 
approximately 760.5 ac (307.8 ha) has burned out of the approximately 
2,000 ac (809 ha) of Chapin Mesa milkvetch habitat in the Park; this 
amounts to 38 percent of Chapin Mesa milkvetch habitat in the Park. 
Climate projections for the San Juan Basin, Colorado, where Chapin Mesa 
milkvetch occurs, include increased temperatures, more intense and 
longer lasting heat waves, a longer fire season with greater frequency 
and extent of fires, and an increased probability of drought, although 
the extent of these increases varies between climate models and depends 
partly on future management (Rondeau et al. 2017, p. 8). These factors 
could exacerbate the frequency and extent of catastrophic wildfires and 
the invasion of cheatgrass on Chapin Mesa milkvetch habitat in the 
future.
Conservation and Management Activities
    In this determination, we consider both existing ongoing 
conservation and management activities that benefit Chapin Mesa 
milkvetch and future conservation efforts that comply with the 
Service's PECE policy. The Service's PECE policy (68 FR 15100; March 
28, 2003) provides a policy framework and criteria for evaluating, 
within a listing determination, conservation efforts that have not yet 
been implemented or have not yet demonstrated whether they are 
effective. For us to consider that a formalized conservation effort 
contributes to forming a basis for not listing a species or for listing 
a species as a threatened species rather than an endangered species, we 
must find that the conservation effort is sufficiently certain to be 
implemented and effective so as to have contributed to the elimination 
or adequate reduction of one or more threats to the species identified 
through the section 4(a)(1) analysis.
    First, existing regulatory mechanisms (Factor D) and other ongoing 
management efforts by the NPS and Ute Mountain Ute Tribe provide 
benefits to Chapin Mesa milkvetch and lessen the influence of large, 
high-intensity wildfire, invasive species, and development on species' 
viability, as the species is located entirely within the Park and the 
Ute Mountain Ute Tribal Park. Both the Park and the Tribe already 
implement activities that reduce wildfire risk and preserve Chapin Mesa 
milkvetch habitat. For example, since we published the proposed listing 
rule for this species, the Park shared a wildfire emergency response 
procedure with the Service, which governs all wildfire response in the 
Park (NPS 2020, entire). According to the Park's wildfire emergency 
response procedure, the Park will immediately and fully suppress 
wildfires ``while minimizing damage to resources from fire or 
suppression

[[Page 5774]]

operations'' (NPS 2020, p. 2). The Park also has multiple on-site 
wildland firefighters, which facilitates quick response and suppression 
of fire (Spencer 2021, pers. comm). The Park will incorporate fire 
management measures currently in the conservation plan for Chapin Mesa 
milkvetch at Mesa Verde National Park, in the associated implementation 
plan, and in the wildfire emergency response procedure into a fire 
management plan by 2022 (Spencer 2021, pers. comm., p. 2; NPS 2020, 
entire).
    Ute Mountain Ute Tribe: In January 2020, the Ute Mountain Ute Tribe 
finalized a conservation plan (Tribal plan) for Chapin Mesa milkvetch, 
which was adopted by Resolution by the Ute Mountain Ute Tribal Council 
in February 2020 (Ute Mountain Ute Tribe 2020, entire). The Tribal plan 
identifies conservation strategies that the Tribe will use on the Ute 
Mountain Ute Indian Reservation to enhance the resiliency, redundancy, 
and representation of Chapin Mesa milkvetch. The Tribal plan calls for 
management decisions that mitigate direct and indirect impacts to the 
species and result in the distribution of the species across high-
quality, contiguous habitat spanning a range of ecological conditions. 
While we conclude that this Tribal plan, if implemented, would likely 
provide benefit to the species, due to uncertainty in future levels of 
implementation and effectiveness, future conservation efforts outlined 
in the Tribal plan were not relied upon in our final listing decision.
    However, we can consider the conservation actions that the Ute 
Mountain Ute Tribe has completed and is currently undertaking to 
conserve this species in our final determination, because conservation 
actions already implemented and shown to be effective are not subject 
to PECE. For example, in 2006, 2011, and 2018-2019, the Tribe created 
fire breaks on the northern end of Chapin Mesa within the Tribal Park 
to prevent the spread of large wildfires throughout the area (Ute 
Mountain Ute Tribe 2021, p. 2). The Tribe is also participating in a 
collaborative research project with the Park, the U.S. Geological 
Survey, and Northern Arizona University ``to identify strategies to 
enhance Pinyon-juniper resilience in the context of fuels management, 
wildfire, and climate change'' and is beginning to monitor the species 
on an annual basis (Ute Mountain Ute Tribe 2021, p. 1). Additionally, 
the fact that the species' habitat occurs within a Tribal Park provides 
additional protections, as the Tribe restricts human activities and 
land uses within this area (Ute Mountain Ute Tribe 2021, p. 2). The 
Tribal Park unit has limited road access in Chapin Mesa milkvetch 
habitat; however, this road is not often used, except for guided tours 
(Service 2021a, p. 31). This has likely limited the extent of any 
habitat loss or other human-caused disturbances to the species' habitat 
within the Tribal Park. Thus, both the Park and the Tribe are currently 
managing their lands in a way that also benefits the species.
    Future Conservation Effort: NPS Conservation Plan: In addition to 
the activities that the Park and Tribe currently implement to protect 
pinyon-juniper habitat and reduce wildfire risk, the Park also 
finalized and approved the ``Conservation Plan for Chapin Mesa 
milkvetch (Astragalus schmolliae) at Mesa Verde National Park'' (NPS 
2018, entire; referred to as ``conservation plan'') in September 2018, 
which details how the Park plans to conserve Chapin Mesa milkvetch in 
the future. To provide further clarity on the objectives and strategies 
in the conservation plan, the Park developed an implementation plan in 
February 2021 (NPS 2021, entire), which ``takes objectives outlined in 
the Chapin Mesa milkvetch Conservation Plan and outlines strategies to 
meet these desired objectives. The goal of [the implementation plan] is 
to provide a planned strategy to execute the Chapin Mesa milkvetch 
conservation plan'' (NPS 2021, p. 3). The conservation plan, and 
associated implementation plan, describe the Park's conservation effort 
through detailing clear objectives, the strategies the Park will 
implement to achieve the objectives, estimated timelines for carrying 
out the strategies, funding sources, and Park staff responsible for 
implementing each strategy. The implementation plan is a key component 
in our determination that future conservation efforts within the Park 
under the conservation plan meet the requirements of the PECE policy 
(see analysis below).
    The conservation plan's goal is to ``reduce threats and stressors 
to the species to ensure the resiliency, redundancy and representation 
of the species leading to a self-sustaining healthy population of 
Chapin Mesa milkvetch. The most intact habitat and densest occurrences 
will receive the highest level of protection coupled with restoration 
of altered habitat'' (NPS 2018, p. 24). Conservation actions in the 
conservation plan focus on identification and protection of intact 
habitat, limitation of development, wildfire prevention, prompt 
response to and restoration after wildfire, enhanced connectivity, 
control of invasive plant species, and support of pollinators.
    The Service evaluated the Park's conservation plan in accordance 
with the PECE policy (68 FR 15100; March 28, 2003). Based on our 
analysis (Service 2021b, entire), which is available at http://www.regulations.gov at Docket No. FWS-R6-ES-2018-0055 and which we 
summarize here, we concluded that the Park's conservation plan, and 
associated implementation plan, are sufficiently certain to be 
implemented and effective such that they could be considered as part of 
the basis for our final listing determination for the species. Using 
the criteria in PECE (68 FR 15100; March 28, 2003), we evaluated the 
certainty of implementation and effectiveness of conservation measures 
in the conservation plan, and associated implementation plan. We 
determined that the measures will be implemented and effective at 
eliminating or reducing threats to the species because they will 
protect intact pinyon-juniper habitat, reduce wildfire risk, and 
restore degraded habitat (Service 2021b, entire). We have a high degree 
of certainty that the measures will be implemented because the NPS has 
a strong track record of implementing conservation measures similar to 
those covered in the conservation plan, has the legal authority to 
implement the plan, has detailed the funding source for each planned 
activity, has provided an implementation schedule (i.e., the 
implementation plan), and has approved the conservation plan (Service 
2021b, entire). The Park has already dedicated portions of its base 
budget towards carrying out Chapin Mesa milkvetch conservation and 
monitoring (Spencer 2021, pers. comm., entire). The Park also has 
already leveraged partnerships to secure funding and support of 
projects that benefit the species (Spencer 2021, pers. comm., entire). 
In both the implementation plan and the Superintendent's January 2021 
letter to the Service, the Park indicates that it will use Park budgets 
and recreation fees to implement the majority of measures in the 
conservation plan, while pursuing additional funding through 
partnerships (NPS 2021, p. 3; Spencer 2021, pers. comm., entire).
    Further supporting the certainty of implementation, since the Park 
finalized and approved the conservation plan in September 2018, the 
Park has been implementing the strategies prescribed in the 
conservation plan, activities they summarize in a January 20, 2021, 
letter to the Service (Spencer 2021, pers. comm., entire). For example, 
the Park has identified key areas for Chapin Mesa conservation and is 
limiting disturbance

[[Page 5775]]

and development in these areas, has developed a wildfire emergency 
response procedure, has funded a genetic study of the species, is 
conducting soil analyses to determine suitable conditions for the 
plant, has drafted a livestock removal implementation plan, and is 
investigating methods to manage and restore pinyon-juniper habitat 
(Spencer 2021, pers. comm., pp. 1-3). Over the past 3 years, the Park 
has also successfully kept development below the limits established for 
each of the three different types of habitat described in the 
conservation plan, preserving important habitat for Chapin Mesa 
milkvetch. The conservation plan has sufficient monitoring and adaptive 
management provisions to ensure that all of the conservation measures 
are implemented as planned and are effective at reducing threats to the 
Chapin Mesa milkvetch.
    Due to the certainty of implementation and effectiveness of the 
conservation plan in accordance with PECE, we considered the 
conservation plan's impacts on the species in our listing 
determination. This conservation plan, and its associated 
implementation plan, alter our understanding of the range of plausible 
future scenarios presented in the SSA report; the projections of future 
resiliency, redundancy, and representation in the SSA report; and the 
risk associated with future stressors. In the SSA, Scenario 3 (the 
``Pessimistic'' scenario) is the only scenario that would result in 
worsened conditions for the plant. However, as we explain in additional 
detail below, based on the commitments and strategies in the PECE-
compliant conservation plan, we know that the negative impacts of fire 
management captured in the ``Pessimistic'' future scenario (Scenario 3) 
will not occur (Service 2021b, entire).
    In the September 17, 2020, proposed rule to list Chapin Mesa 
milkvetch as a threatened species (85 FR 58224), we expressed 
uncertainty regarding the benefits of the Park's management efforts, 
specifically how development and fuels management activities in the 
Park could impact the plant. In the proposed rule, we stated that 
management activities conducted within the Park, such as fuels and fire 
management, and the development of visitor-related infrastructure, may 
have direct and indirect impacts to the species (85 FR 58224, September 
17, 2020, p. 58230). In the proposed rule, we stated that while fuels 
reduction activities may help decrease the likelihood of catastrophic 
fires, they may also have detrimental impacts such as trampling, 
creating surface disturbances and altering ecological conditions, or 
facilitating nonnative species invasion, and that the development of 
existing infrastructure, such as roads, parking lots, a wastewater 
treatment facility, and buildings within the Park has resulted in a 
loss of approximately 2 percent of Chapin Mesa milkvetch habitat (85 FR 
58224, September 17, 2020, p. 58230). We also noted that several 
additional infrastructure and fire management projects were planned or 
under consideration within Mesa Verde National Park (85 FR 58224, 
September 17, 2020, p. 58230).
    The provisions in the Park's conservation plan now provide 
assurances that alleviate these concerns about potential negative 
impacts from development and fuels management. We know that any 
increases in development predicted under Scenarios 2 and 3 would be 
within the limits established in the conservation plan and any fire 
management activities would be carried out with conservation measures 
that minimize impacts to Chapin Mesa milkvetch (NPS 2018, pp. 24-30; 
NPS 2021, pp. 4-22). For example, the conservation plan only allows the 
Park to develop an additional 1.8 percent of Chapin Mesa milkvetch 
``Level 1'' habitat (intact, old-growth pinyon juniper woodland) (NPS 
2018, p. 27). Moreover, this development will incorporate minimization 
measures to reduce impacts of any development on the species and its 
habitat (Objectives 3 and 10 in NPS 2021, pp. 10-11, 21-22). The 
conservation plan also limits the areas in which the Park will conduct 
fuels treatments and details measures to minimize the impacts of these 
treatments; while fuels treatments can help prevent catastrophic fire, 
these activities can also incidentally negatively impact Chapin Mesa 
milkvetch habitat through trampling, facilitation of cheatgrass 
invasion, and small-scale burning of plants if Park staff members burn 
excess fuel on top of Chapin Mesa milkvetch habitat. The conservation 
plan dictates that the Park will only conduct fuels reduction 
management in an additional 19 percent of Chapin Mesa milkvetch habitat 
in the Park and that all of these treatments will include the adoption 
of minimization measures to protect Chapin Mesa milkvetch and its 
habitat, such as hand-carrying out fuels instead of pile burning, when 
possible (NPS 2018, p. 14; Objectives 4, 5, 6, 8, and 10 in NPS 2021, 
pp. 11-27, 18-19, 21-22). These minimization measures lessen the 
potentially negative side-effects that fuels management could have on 
Chapin Mesa milkvetch and its habitat and will result in a 50 percent 
reduction of impacts to the species from fuels management in the future 
(NPS 2018, p. 14; Objectives 4, 5, 6, 8, and 10 in NPS 2021, pp. 11-27, 
18-19, 21-22). By reducing the intensity of treatments and 
incorporating minimization measures, the fuels management detailed in 
the conservation plan will likely provide a net benefit to Chapin Mesa 
milkvetch because it will protect the species and its habitat from 
large-scale, stand-replacing wildfires while reducing direct impacts of 
treatments on the plant and its habitat.
    Furthermore, according to the implementation plan, the Park ``will 
not plan development or fuels management treatments on Park Mesa or 
West Chapin Mesa Spur so that these sites can be retained for future 
introductions or range expansions'' (NPS 2018, p. 27); in the 
conservation plan, the Park commits to developing a plan for 
reintroduction on Park Mesa (NPS 2018, pp. 30-31). The Park will 
research and pursue an ex situ conservation effort (NPS 2018, p. 33; 
NPS 2021, p. 27). Pending the outcomes of soil and habitat suitability 
studies, the Park is also preserving 6,264 acres on North Chapin Mesa, 
Park Mesa, and Moccasin Mesa in sufficient condition to allow for 
introduction if necessary (Spencer 2021, pers. comm., p. 2; NPS 2018, 
p. 31). If the Park deems reintroduction projects necessary and pursues 
them, this reintroduction could provide additional redundancy for the 
species in the future, though this remains uncertain and we did not 
rely on these potential increases in our analysis of species status 
(NPS 2021, pp. 11-12).
    Additionally, the conservation plan's provisions address the threat 
of nonnative, invasive vegetation that we identified as a concern in 
the proposed rule. The risk of invasion of nonnative vegetation is 
already low in areas with intact pinyon-juniper overstory. In the 
conservation plan, the Park commits to maintaining minimal disturbance 
and development in these areas with intact pinyon-juniper overstory to 
reduce the likelihood of nonnative plant invasion in these highly 
resilient areas. The Park also commits to recovering burned, degraded 
areas such that pinyon-juniper trees are restored ``to more than 10 
percent canopy cover'' and invasive plants are reduced ``to less than 5 
percent cover,'' further reducing the risk invasive vegetation poses to 
the species (NPS 2018, pp. 26, 29; NPS 2021, pp. 7-9, 19-21). The Park 
is collaborating with the Tribe to research effective methods of 
restoring pinyon-juniper habitat

[[Page 5776]]

(Spencer 2021, pers. comm., p. 3; NPS 2021, pp. 7-9).
    The September 17, 2020, proposed rule (85 FR 58224) also attributed 
risk of extinction in the foreseeable future to the high potential for 
a future catastrophic event, such as a catastrophic wildfire, that 
could affect all or a large portion of the species' range, given the 
species' inherently limited redundancy and the fact that 97 percent of 
the species' known range is concentrated in the Park. The conservation 
plan, implementation plan, and the Park's new standard operating 
procedures for wildfire management, which are documented in their 2020 
wildfire emergency response procedure, also shed new light on these 
concerns. As we explain above, the strategies and commitments in the 
conservation plan and implementation plan indicate that the management 
actions predicted in Scenario 3 will not occur in the future; we know 
that the Park will not do less invasive species control, will not 
significantly increase potentially detrimental fire management 
activities, will not significantly increase development, and will not 
open currently closed roads and trails (NPS 2018, pp. 24-30; NPS 2021, 
pp. 4-22). Scenario 3 was the only scenario in the SSA report that 
would result in worsened conditions for the species. However, while the 
provisions in the conservation plan ensure that the management 
components of this ``pessimistic'' future scenario will not occur, the 
``hot and dry'' climate conditions associated with this scenario could 
still happen (Service 2021a, p. 39). These climate conditions could 
increase the frequency of wildfire 8-fold and the amount of area burned 
11-fold, which partially influenced the worsened resiliency in this 
future scenario in the SSA (Rondeau et al. 2017, pp. 10-11, 15-17, 
Appendices C and D). However, these projected increased risks and 
impacts of catastrophic wildfire assume no fire management or 
prevention. Wildfire management and response measures in the Park's 
conservation plan, implementation plan, and wildfire emergency response 
procedure, which the Park has committed to incorporating into a long-
term fire management plan by 2022, ensure that the Park will take 
action to prevent fire, while minimizing impacts of this management on 
the species; they also ensure that the Park will respond to fire 
immediately with the intent to fully suppress it (NPS 2018, pp. 27-29; 
NPS 2020, entire; NPS 2021, pp. 12-17). These efforts decrease the 
potential influence of climate change and associated wildfire on the 
species in all future scenarios, further reducing the plausibility and 
likelihood of the resiliency outcomes of the ``Pessimistic'' future 
scenario, the only scenario in which the species' future resiliency 
would worsen relative to current condition.

Determination of Species Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of ``endangered species'' or 
``threatened species.'' The Act defines an ``endangered species'' as a 
species that is in danger of extinction throughout all or a significant 
portion of its range and a ``threatened species'' as a species that is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range. The Act requires 
that we determine whether a species meets the definition of an 
``endangered species'' or ``threatened species'' because of any of the 
following five factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Chapin Mesa milkvetch. Potential stressors to the Chapin Mesa 
milkvetch that we evaluated include invasive, nonnative plants (Factor 
A); wildfires (Factor A); post-fire mitigation (Factor A); wildfire and 
fuels management (Factor A); trampling and herbivory (Factors A and C); 
development of infrastructure (Factor A); drought (Factor A and Factor 
E); and effects of climate change (Factor A and Factor E) (Service 
2021a, pp. 13-22). There is no evidence that overutilization (Factor B) 
of Chapin Mesa milkvetch, disease (Factor C), or other natural or 
manmade factors affecting the species (Factor E) are occurring. 
Existing regulatory mechanisms (Factor D) are discussed above.
    We evaluated each potential stressor, including its source, 
affected resources, exposure, immediacy, geographic scope, magnitude, 
and impacts on individuals and populations, and our level of certainty 
regarding this information, to determine which stressors were likely to 
be drivers of the species' current condition (Service 2021a, Appendix 
A). Our analysis found that the primary drivers of the Chapin Mesa 
milkvetch's current and future condition are the increased frequency of 
large, high-intensity wildfires; increasing presence of invasive, 
nonnative plants, especially cheatgrass; and the interaction between 
these elements, as explained further in the SSA report (Service 2021a, 
pp. 13-22).

Status Throughout All of Its Range

    In our September 17, 2020, proposed rule to list Chapin Mesa 
milkvetch as a threatened species (85 FR 58224), we concluded that the 
species did not meet the definition of an endangered species under the 
Act. The new information we received since we published that proposed 
rule does not change our original conclusion regarding the species' 
current risk of extinction. We still find that the Chapin Mesa 
milkvetch is not currently in danger of extinction throughout its 
range. The species currently has a large representative subunit (the 
unburned Chapin Mesa subunit) that is considered highly resilient, 
based on the quality of habitat conditions for Chapin Mesa milkvetch. 
This large area of habitat (1,265 ac (512 ha)) in a highly resilient 
subunit likely provides the Chapin Mesa milkvetch some ability to 
withstand stochastic events, such as drought, that are within the 
normal range of yearly variation, and to complete its life cycle. 
Additionally, all four representative units are currently in moderate 
condition, providing for some additional redundancy and representation, 
given the relatively healthy status of multiple representative units 
across the species' range. Moreover, three of these four units occur on 
geographically separate mesa tops; the steep cliffs between these mesa 
tops provide natural fire breaks between the representative units, 
reducing the likelihood that a single wildfire could impact all four 
representative units at the same time. In addition to these natural 
fire breaks, the constructed fire break between the Park and the Ute 
Mountain Ute Tribal Park further enhances redundancy of the species, 
limiting the ability of a catastrophic wildfire to spread along Chapin 
Mesa and impact representative units in both the Park and on Tribal 
lands. Therefore, the risk of extinction now is low, and the species is 
not currently in danger of extinction throughout its range.
    The Act defines an ``endangered species'' as any species that is in 
danger of extinction throughout all or a

[[Page 5777]]

significant portion of its range and a ``threatened species'' as any 
species that is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range. As we discuss in detail under Summary of Biological Status and 
Threats, the best available information on how potential future climate 
conditions could affect the specific ecological communities on which 
Chapin Mesa milkvetch depends considers this ecological response only 
through 2035 (Rondeau et al. 2017, pp. 9-11). Given the uncertainties 
regarding wildfire risk and species' response past 2035, future 
conditions further into the 21st century are less reliable and 
foreseeable (see 84 FR 45020, August 27, 2019, p. 45027). We can, 
however, make reliable predictions about the threats to and response of 
Chapin Mesa milkvetch through 2035. We thus consider the foreseeable 
future for the Chapin Mesa milkvetch to be to the year 2035, given the 
available climate data specific to the San Juan Basin in southwestern 
Colorado, where Chapin Mesa milkvetch occurs, and based on the 
available analyses on the response of pinyon-juniper communities to 
these climate changes.
    Based on the new information in the Park's conservation plan, 
implementation plan, and wildfire emergency response procedure, we find 
that the Chapin Mesa milkvetch is not likely to become endangered 
within the foreseeable future throughout all of its range. First, we 
now know that any increases in development predicted under Scenarios 2 
and 3 would be within the limits established in the conservation plan 
and any fire management activities would be carried out with 
conservation measures that minimize impacts to Chapin Mesa milkvetch 
(NPS 2018, pp. 24-30; NPS 2021, pp. 4-22). More generally, we know that 
the Park's conservation plan and implementation plan indicate that the 
management components of Scenario 3 will not come to fruition; we know 
that the Park will not do less invasive species control, will not 
significantly increase potentially detrimental fire management 
activities, will not significantly increase development, and will not 
open currently closed roads and trails (NPS 2018, pp. 24-30; NPS 2021, 
pp. 4-22). Second, the Park's conservation plan, implementation plan, 
and new wildfire emergency response procedure, which the Park has 
committed to incorporating into a long-term fire management plan by 
2022, ensure that the Park will take action to prevent fire, while 
minimizing impacts of this management on the species; they also ensure 
that the Park will respond to fire immediately with the intent to fully 
suppress it (NPS 2018, pp. 27-29; NPS 2020, entire; NPS 2021, pp. 12-
17). These conservations efforts decrease the potential influence of 
climate change and associated wildfire on the species in all future 
scenarios, further reducing the plausibility and likelihood of the 
outcomes of Scenario 3, the only scenario in which the species' future 
condition would worsen relative to current condition.
    Given the Park's commitments in the conservation plan and 
implementation plan, which we describe in additional detail in Summary 
of Factors Influencing Viability above, it is likely that the 
resiliency of the representative units in the Park (Chapin Mesa, Park 
Mesa, and West Chapin Spur) will remain the same as current condition 
or improve in the foreseeable future due to habitat restoration efforts 
and management of wildfire risk. These maintained or improved levels of 
resiliency would continue to provide for reduced catastrophic risk and 
enhanced ability to adapt to future environmental change, especially 
considering the inherently limited range of this narrow endemic plant. 
The four extant representative units distributed across three 
geographically distinct mesa tops reduces the risk of losing all 
individuals in a catastrophic fire, especially considering that the 
separate mesa tops provide natural fire breaks that would prevent fire 
from spreading between representative units. The constructed fire break 
between Mesa Verde National Park and the Tribal Park further reduces 
the likelihood of fire spreading along Chapin Mesa, between the Park 
and Tribal land.
    Even though much uncertainty remains as to the condition of Chapin 
Mesa milkvetch occurrences on Tribal lands, both now and into the 
future, we analyzed the status of the species based on the best 
available information on the future of species' threats and 
conservation efforts. While the Tribe is actively providing 
conservation for the species, information about the future of the 
species' threats and conservation is currently only available and 
certain for the occurrences in the Park. However, the certainty of 
implementation and effectiveness of conservation efforts in the Park, 
in addition to the fire breaks between Mesa Verde National Park and the 
Tribal Park, provided confidence that the species would maintain 
sufficient levels of resiliency, redundancy, and representation into 
the foreseeable future, even without similarly certain future 
conservation commitments on Tribal lands.
    The Park's implementation plan, which was provided after we 
published the proposed rule, in addition to new standard operating 
procedures for fire management at the Park, documented in the wildfire 
emergency response procedure, thus reduce the likelihood of Chapin Mesa 
milkvetch becoming an endangered species in the foreseeable future. 
Therefore, based on the Park's commitments to maintain and restore 
pinyon-juniper overstory, to conduct fire management such that it 
reduces the risk of catastrophic wildfire in the Park while also 
minimizing impacts to the species, and to quickly suppress fire, the 
resiliency, redundancy, and representation of Chapin Mesa milkvetch 
will likely remain the same or better than current condition into the 
foreseeable future; thus, the risk of extinction remains low for Chapin 
Mesa milkvetch into the foreseeable future. Therefore, after assessing 
the best available information, we conclude that the Chapin Mesa 
milkvetch is not in danger of extinction now nor is it likely to become 
so in the foreseeable future throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. Having determined that the Chapin Mesa milkvetch is not in 
danger of extinction or likely to become so in the foreseeable future 
throughout all of its range, we now consider whether it may be in 
danger of extinction or likely to become so in the foreseeable future 
in a significant portion of its range--that is, whether there is any 
portion of the species' range for which it is true that both (1) the 
portion is significant; and (2) the species is in danger of extinction 
now or likely to become so in the foreseeable future in that portion. 
Depending on the case, it might be more efficient for us to address the 
``significance'' question or the ``status'' question first. We can 
choose to address either question first. Regardless of which question 
we address first, if we reach a negative answer with respect to the 
first question that we address, we do not need to evaluate the other 
question for that portion of the species' range.
    In undertaking this analysis for the Chapin Mesa milkvetch, we 
choose to address the status question first--we consider information 
pertaining to the geographic distribution of both the species and the 
threats that the species

[[Page 5778]]

faces to identify any portions of the range where the species is 
endangered or threatened.
    Chapin Mesa milkvetch is a narrow endemic that functions as a 
single, contiguous population and occurs within a very small area. As 
described in the SSA report (Service 2021a, pp. 4-5), the species' 
global distribution is constrained almost entirely to Chapin Mesa in 
southern Colorado, with some outlying subunits on neighboring Park Mesa 
and West Chapin Spur (Rondeau 2017, p. 1). Chapin Mesa milkvetch 
habitat occupies approximately 2,000 ac (809 ha) in the Park (CNHP 
2010, pp. 12-19; Anderson 2004, p. 25, 30). This species is considered 
to consist of one large, interconnected population, and like many rare 
plants, Chapin Mesa milkvetch is globally rare, but is locally abundant 
throughout its occupied habitat (Rondeau 2017, p. 1). Thus, there is no 
biologically meaningful way to break this limited range into portions, 
and the threats that the species faces affect the species throughout 
its entire range. This means that no portions of the species' range 
have a different status from its rangewide status. Therefore, no 
portion of the species' range can provide a basis for determining that 
the species is in danger of extinction now or likely to become so in 
the foreseeable future in a significant portion of its range, and we 
find the species is not in danger of extinction now or likely to become 
so in the foreseeable future in any significant portion of its range. 
This is consistent with the courts' holdings in Desert Survivors v. 
Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. 
Cal. Aug. 24, 2018), and Center for Biological Diversity v. Jewell, 248 
F. Supp. 3d, 946, 959 (D. Ariz. 2017).

Determination of Status

    We have reviewed the best available scientific and commercial 
information regarding the past, present, and future threats to the 
Chapin Mesa milkvetch, and we have determined that Chapin Mesa 
milkvetch does not meet the definition of an ``endangered species'' or 
a ``threatened species'' in accordance with sections 3(6) and 3(20), 
respectively, of the Act. Therefore, we are withdrawing our proposed 
rule to list the Chapin Mesa milkvetch as a threatened species and to 
designate critical habitat.

References Cited

    A complete list of references cited in this document and the Chapin 
Mesa milkvetch SSA report are available on the internet at http://www.regulations.gov at Docket No. FWS-R6-ES-2018-0055 and upon request 
from the Colorado Ecological Services Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this document are the staff members of the 
Colorado Ecological Services Office and the Mountain-Prairie Regional 
Office.

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the 
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-02041 Filed 2-1-22; 8:45 am]
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