Endangered and Threatened Wildlife and Plants; Proposed Threatened Status for Penstemon grahamii, 3158-3196 [06-363]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 71, Number 12 (Thursday, January 19, 2006)]
[Proposed Rules]
[Pages 3158-3196]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-363]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Proposed Threatened 
Status for Penstemon grahamii (Graham's beardtongue) With Critical 
Habitat; Proposed Rule

Federal Register / Vol. 71, No. 12 / Thursday, January 19, 2006 / 
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU49


Endangered and Threatened Wildlife and Plants; Proposed 
Threatened Status for Penstemon grahamii (Graham's beardtongue) With 
Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
determine threatened status for Penstemon grahamii (Graham's 
beardtongue), a plant species from Colorado and Utah, under the 
authority of the Endangered Species Act of 1973, as amended (Act). P. 
grahamii exists in a series of small populations that extend in a 
narrow band from Raven Ridge west of the town of Rangely in Rio Blanco 
County, Colorado, westward to the vicinity of Sand Wash near the point 
where Carbon, Duchesne, and Uintah Counties meet in Utah's Uinta Basin. 
Threats to the species include degradation of the species' habitat by 
oil and gas exploration, drilling and field development, and tar sand 
and oil shale mining. Off-road vehicle (ORV) use, overutilization by 
domestic and wild grazers, and overutilization for horticultural use 
may also affect some populations. These threats, in combination with 
small population sizes and limited distribution, result in species 
vulnerability to natural and human-caused stochastic events. This 
proposal, if made final, would implement Federal protection provided by 
the Act. In addition, we propose to designate 3,503.68 acres (2,102 
hectares) as critical habitat for P. grahamii in five units in Rio 
Blanco County, Colorado, and Duchesne and Uintah Counties, Utah.

DATES: Comments from all interested parties must be received by March 
20, 2006. Public hearing requests must be received by March 6, 2006.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. You may submit written comments and information to Henry Maddux, 
Field Supervisor, U.S. Fish and Wildlife Service, Utah Field Office, 
2369 West Orton Circle, West Valley, Utah 84119.
    2. You may hand-deliver written comments to our Office, at the 
above address.
    3. You may send comments by e-mail to fw6_
penstemongrahamii@fws.gov. Please see the Public Comments Solicited 
section below for file format and other information about electronic 
filing.
    4. You may fax your comments to the Utah Field Office at 801-975-
3331.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Utah Field Office, 2369 West Orton Circle, West Valley, 
Utah 84119 (801-975-3330).

FOR FURTHER INFORMATION CONTACT: John L. England at the above address 
(telephone 801-975-3330, extension 138; facsimile 801-975-3331).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    The Service expects any final rule resulting from this proposal to 
be as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:

Listing Rule

    We seek specific information on any available preliminary results 
from the recent lease nominations for research, development, and 
demonstration of oil shale recovery technologies on Bureau of Land 
Management (BLM) lands; success of ongoing oil shale or tar sands 
development projects, particularly in the Green River formation; 
available economic and technological analyses; and specific information 
detailing definitive effects of these operations to environmental 
resources, as primarily related to losses of plant individuals, loss or 
fragmentation of plant habitat, and loss or declines in plant 
pollinators. Despite recent policy direction (e.g., Energy Policy Act 
2005), the long-term technological and economic feasibility of oil 
shale and tar sands development are uncertain (Bartis 2005). Our final 
rule will more closely evaluate the technologies and economic certainty 
of oil shale and tar sand development within the Green River formation, 
and its potential to threaten P. grahamii. Similarly, although the 
Energy Policy Act of 2005 seems to set the stage for increased oil and 
gas drilling activities within P. grahamii habitat, we do not have 
information specific to ongoing or proposed actions in these areas, and 
we request any available information.

Critical Habitat

    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to this species;
    (2) Additional information concerning the range, distribution, and 
population size of this species, including the locations of any 
additional populations of this species;
    (3) Current or planned activities in the subject area and their 
possible impacts on this species;
    (4) Reasons why any habitat should or should not be determined to 
be critical habitat for this species pursuant to section 4 of the Act; 
and
    (5) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. In some circumstances, we would withhold 
from the rulemaking record a respondent's identity, as allowable by 
law. If you wish us to withhold your name or address, you must state 
this prominently at the beginning of your comment. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety. Comments 
and materials received will be available for public inspection, by 
appointment, during normal business hours (see ADDRESSES section).

Listing

Background

    Section 12 of the Act directed the Secretary of the Smithsonian 
Institution to prepare a report on those plants considered to be 
endangered, threatened, or extinct. On July 1, 1975, the Service 
published a notice in the Federal Register (40 FR 27823) accepting that 
Smithsonian report as a petition to list those taxa named therein under 
section 4(c)(2) (now 4(b)(3)) of the Act, and announced our intention 
to review the status of those plants. Penstemon grahamii was included 
in that report.
    On June 16, 1976, we published a proposed rule in the Federal 
Register (41 FR 24523) to designate approximately 1,700 vascular plant 
species, including Penstemon grahamii, as endangered pursuant to 
section 4 of

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the Act. The 1978 amendments to the Act required that all proposals 
over 2 years old be withdrawn. On December 10, 1979, we published a 
notice of withdrawal (44 FR 70796) of that portion of the June 16, 1976 
proposal that had not been made final, which included P. grahamii.
    On December 15, 1980, we published a revised notice of review for 
native plants in the Federal Register (45 FR 82480) designating 
Penstemon grahamii a category 2 candidate species. Category 2 
candidates were at that time defined as taxa for which information in 
the possession of the Service indicated the probable appropriateness of 
listing as either endangered or threatened, but for which sufficient 
information is not presently available to biologically support a 
proposed rule. During the late 1970s and early 1980s strong interest in 
oil shale development with its potential for extensive disruption of 
much of the species' known habitat accentuated our concern for the 
conservation of P. grahamii. However, the recent discovery of a 
Colorado population and the lack of surveys over the species' entire 
range caused us to delay action until that new information was 
developed.
    On November 28, 1983, we published a revised notice of review in 
the Federal Register (48 FR 53640) amending our 1980 notice of review. 
The 1983 amendment changed the candidate species status of P. grahamii 
to category 1. Category 1 candidates are defined as those taxa for 
which the Service has on file information on the biological 
vulnerability and threats to support the preparation of listing 
proposals. Recently completed status surveys demonstrating very small 
populations (Neese and Smith 1982; Shultz and Mutz 1979) coupled with 
ongoing concern for the conservation of the species' habitat from 
potential energy development resulted in this change in P. grahamii 
candidate status. We maintained P. grahamii as a category 1 candidate 
species in subsequent updated notices of review.
    In the February 28, 1996, notice of review (61 FR 7596), we 
discontinued the designation of category 1, 2, and 3 species. Most 
category 2 species were removed from the notice of review and most 
category 1 species were maintained as uncategorized candidate species. 
Penstemon grahamii was included as a candidate species. The Service 
made subsequent determinations of candidate species status for P. 
grahamii in Federal Register notices of review.
    Penstemon grahamii was petitioned three times for listing as 
endangered or threatened under the provisions of the Act. The first 
petition was the initial Smithsonian list of 1975 (see above). The 
second Petition was the Fund for Animal's petition of 1990. This 
petition included 401 species the Service had previously assigned 
Category 1 status in its previous notices of review. On October 8, 
2002, we received a petition specifically for P. grahamii from five 
separate parties, namely--the Center for Native Ecosystems, the 
Southern Utah Wilderness Alliance, the Utah Native Plant Society, the 
Colorado Native Plant Society, and the American Lands Alliance. This 
``second'' petition reiterated biological information and information 
on increased levels of threat, for the most part already in our files.
    We are under a court settlement to submit to the Office of the 
Federal Register, by January 9, 2006, a proposed rule to list Penstemon 
grahamii.

Species Information

    Edward Graham collected a distinctive Penstemon from a site west of 
the Green River and south of Sand Wash, in southern Uintah County, 
Utah, on May 27, 1933, and from a site north of Sand Wash on the 
following day (Graham, 1937). David Keck described the species, 
Penstemon grahamii, from Graham's collections in 1937 (Keck in Graham, 
1937). The genus Penstemon consists of dicotyledonous plants 
traditionally placed in the Figwort family (Scrophulariaceae). The 
genus Penstemon includes about 250 species and is almost exclusively 
North American in its distribution. The center of distribution of the 
genus is in the interior west of the United States, with Utah having 
over 70 species and Colorado over 60 (Welsh et al. 2003; Weber and 
Wittmann 2000; Cronquist et al. 1984). Thirty species occur in the 
Uinta Basin of northeastern Utah and adjacent Colorado, the local 
geological and floristic province of P. grahamii (Goodrich and Neese 
1986).
    Penstemon grahamii is an herbaceous perennial plant within the sub-
genus Cristati (N. Holmgren in Cronquist et al. 1984). The following 
description of P. grahamii is adapted from D. Keck (in Graham 1937), N. 
Holmgren (in Cronquist et al. 1984), and E. Neese (in Welsh et al. 
2003). Each plant has one to three stems arising from a taproot. These 
stems are 7-18 centimeters (cm) (2.8-7.0 inches (in)) tall. Leaves are 
borne in pairs opposite each other on the stem and are of two different 
forms (basal leaves and cauline leaves).
    Penstemon grahamii has an inflorescence (cluster of flowers) 
usually of 3 to 20 flowers, although occasionally just one or two 
flowers are present. The species' corolla (inner whorl of flower parts, 
the petals collectively) is bilaterally symmetrical with its petals 
fused into a floral tube. The corolla tube is 30-38 mm (1.2-1.5 in.) 
long and abruptly ventricose (enlarged on one side) towards the distal 
part of the tube. The corolla is strongly bilabitate (two lipped), the 
upper lip has two lobes and the lower lip has three lobes. The color of 
the corolla varies from light to dark lavender, or pinkish, with dark 
violet lines in the throat of the corolla tube. The species has four 
fertile stamens and one prominent infertile staminode (the infertile 
staminode is the classic floral characteristic of the Penstemon genus). 
The fertile stamens lie along the roof of the corolla. The linear 
staminode is densely bearded with short stiff golden orange pubescence 
on all surfaces along its entire length. The seed capsule is an 
inverted cordate (heart) shaped structure about 8-10 mm (0.03-0.04 in.) 
long. The species has 5-50 seeds per capsule.
    We have delineated all known locations with extant populations of 
P. grahamii into 109 occurrences. We grouped these occurrences into 
five units separated by unoccupied gaps in the species range. Available 
population data information is summarized for the broader units rather 
than each of the smaller occurrences (Shultz and Mutz 1979, Neese and 
Smith, 1982, Borland 1987, Franklin 1993, 1995, Colorado Natural 
Heritage Program 2005, Utah Natural Heritage Program 2005). In addition 
the consolidating occurrences at this scale provides for effective 
identification and naming of these sites to land owners and managers.
    The westernmost P. grahamii population habitat unit, named the Sand 
Wash Unit (Unit A) occurs in the vicinity of Sand Wash in southwestern 
Uintah and adjacent Duchesne Counties, Utah. This unit consists of 10 
separate occurrences with a population estimated at 135 individuals 
(Shultz and Mutz 1979, Franklin 1993, Utah Natural Heritage Program 
2005). This population unit has relatively small numbers (approximately 
2 percent of the species total) compared to those population units in 
the center of the species range. This unit is the most isolated of the 
species population units. This portion of the species population has 
minor morphological differences from the remainder of its population 
(Shultz and Mutz 1979) and may, due to geographic isolation, be 
genetically divergent from the remainder of the species population.
    A second P. grahamii population habitat unit, named the Seep Ridge 
Unit (Unit B), occurs approximately 17 miles

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(mi) (27 kilometers (km)) east of the Sand Wash population unit in the 
Willow and Bitter Creek drainages in the vicinity of Sunday School 
Canyon near the Seep Ridge road in south central Uintah County, Utah. 
This population habitat unit consists of 53 separate occurrences with 
an estimated population of 3,200 individuals (Shultz and Mutz 1979, 
Utah Natural Heritage Program 2005). This population habitat unit is 
the species largest with approximately 52 percent of the species total 
population.
    A third P. grahamii population habitat unit, named the Evacuation 
Creek Unit (Unit C), occurs approximately 10 mi (16 km) east of the 
Seep Ridge unit in the Asphalt Wash and Evacuation Creek drainages near 
the abandoned Gilsonite mining towns of Dragon and Rainbow. This 
population habitat unit is in southeastern Uintah County, Utah, and 
adjacent Rio Blanco County, Colorado, and consists of 31 separate 
occurrences with an estimated population of 2,550 individuals (Neese 
and Smith, 1982, Franklin 1995, Utah Natural Heritage Program 2005). 
This population unit is the species second largest with approximately 
41 percent of the species total population.
    A fourth P. grahamii population habitat unit, named the White River 
Unit (Unit D), occurs approximately 5 mi (8 km) north of the Evacuation 
Creek unit in Hells Hole and Weaver Canyons immediately south of the 
White River. This population habitat unit is in eastern Uintah County, 
Utah, and consists of 9 separate occurrences with an estimated 
population of 115 individuals (Neese and Smith, 1982, Franklin 1995, 
Utah Natural Heritage Program 2005). This population habitat unit is 
the species smallest with approximately 2 percent of the species total. 
This population unit is important as a link between the species to 
largest population units to the south and southwest and the species 
Colorado population to the northeast.
    A fifth population habitat unit, named the Raven Ridge Unit (Unit 
E), occurs approximately 7 mi (11 km) northwest of the White River unit 
along the west flank of Raven Ridge and north of the White River 
between Raven Ridge and the Utah border in extreme western Rio Blanco 
County, Colorado. This population habitat unit consists of 6 separate 
occurrences with an estimated population of 200 individuals (Borland 
1987, Colorado Natural Heritage Program 2005). This population habitat 
unit harbors approximately 3 percent of the species total population. 
This unit includes virtually the species entire population in Colorado 
(a portion of a small population occurs at the eastern margin of the 
Evacuation Creek population unit at the Colorado-Utah border). As in 
the case of the Sand Wash unit, the Raven Ridge unit is at the extreme 
end of the species range. As such this population is important for its 
representation of a portion of the full spectrum of the species genetic 
diversity.
    The 109 occurrences and five units of Penstemon grahamii 
collectively form the species' known range, which is distributed in a 
curved band about 10 km (6 mi) wide and about 128 km (80 mi) long. 
These units extend from the Sand Wash and adjacent Nine Mile Creek 
drainages near the point where Carbon, Duchesne, and Uintah Counties, 
Utah, meet; then easterly across southern Uintah County to near the 
Colorado border; then northerly to a point near the White River where 
the population band moves into Colorado to Raven Ridge, the eastern 
terminus of the species range (Shultz and Mutz 1979, Neese and Smith 
1982, Borland 1987, Franklin 1993, 1995, Colorado Natural Heritage 
Program 2005, Utah Natural Heritage Program 2005). The total documented 
population of Penstemon grahamii is estimated at approximately 6,200 
individuals (Shultz and Mutz 1979, Neese and Smith, 1982, Borland 1987, 
Franklin 1993 and 1995, Colorado Natural Heritage Program 2005, Utah 
Natural Heritage Program 2005). Approximately 60 percent of the species 
population is on BLM managed land with the remainder on non-Federal 
lands with state and private ownership.
    The species' habitat is a discontinuous series of exposed raw shale 
knolls and slopes derived from the Parachute Creek and Evacuation Creek 
members of the geologic Green River Formation. Most populations are 
associated with the surface exposure of the petroleum bearing oil shale 
Mahogany ledge (Cashion 1967, Shultz and Mutz 1979, Neese and Smith, 
1982, Franklin 1993, 1995). The trace of the Mahogany bed correlates 
very closely with the trace of Penstemon grahamii sites from the 
vicinity of Sand Wash near the Green River to Raven Ridge near the 
White River (Cashion 1967 (see map page 31), Shultz and Mutz 1979, 
Neese and Smith 1982 (see map overlay Vol. 5)).
    Penstemon grahamii is associated with a suite of species similarly 
adapted to xeric growing conditions on highly basic calcareous shale 
soils. The vascular plant species most commonly associated with P. 
grahamii include--Amelanchier utahensis (Utah serviceberry), Artemisia 
pygmaea (pygmy sage), Cercocarpus montanus, (mountain mahogany), 
Chamaechaenactis scoposa (Eastwood's chaenactis), Elymus salinus 
(Salina wild-rye), Ephedra torreyana (Mormon tea), Eriogonum corymbosum 
(Fremont's wild-buckwheat), Glossopetalon spinescens (Utah greasewood), 
Parthenium ligulatum (low feverfew), Tetradymia nuttallii (Nuttall's 
horse-bush), and Yucca harrimaniae (Harriman's yucca). P. grahamii 
sites at higher elevation are occasionally within sparse pinon-juniper 
woodland dominated by Juniperus osteosperma (Utah juniper) and Pinus 
edulis (Colorado pinon). P. grahamii sites at lower elevations are 
occasionally within a sparse desert shrubland dominated by Atriplex 
conferitfolia (shadscale). However, in both cases P. grahamii habitat 
is characterized by the sparsely vegetated raw shale surface indicative 
of the species habitat throughout its range. The following species are 
in part co-occurring with P. grahamii and are similarly endemic and 
totally restricted to the Green River Formation: Astragalus lutosus 
(Dragon milk-vetch), Aquilejia barnebyi (Barneby's columbine), Cirsium 
barnebyi (Barneby's thistle), Cryptantha barnebyi (Barneby's catseye), 
C. grahamii (Graham's catseye), C. rollinsii (Rollins's Catseye), 
Eriogonum Ephedroides (ephedra wild-buckwheat), and Penstemon 
sacariosus var. albifluvis (White River penstemon). Penstemon scariosus 
var. albifluvis is currently a Federal candidate species and most of 
the remainder of those in the above list were category 2 candidate 
species prior to 1996 (see discussion in following ``Previous Federal 
Action''). The plant community associated with P. grahamii forms a 
distinctive assemblage of plant species dominated by dwarf shrubs and 
mound-forming perennial herbaceous plants with relatively low plant 
cover. This plant community forms small enclosures within the broader 
plant communities that characterize the southeastern Uinta Basin 
(Shultz and Mutz 1979; Neese and Smith 1982; BLM 1987).
    Pollinators of Penstemon grahamii include the bees Anthophora 
lesquerellae, Osmia sanrafaelae, the sweat bees Lasioglossum sisymbrii 
and Dialictus sp., and the masarid wasp Pseudomasaris vespoides 
(Lewinsohn et al. 2005). In addition, a bumblebee of the genus Bombus 
(Bombus huntii) (V. Tepedino, pers. comm. 2005) visits the species (L. 
England, U.S. Fish and Wildlife Service, pers obs. 2003). The most 
consistent pollinator of these species is likely to be Pseudomasaris 
vespoides. This unusual wasp (it is a

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member of the only ``vegetarian'' wasp family known to science) is an 
extreme specialist of Penstemon flowers. It collects and feeds its 
offspring only Penstemon pollen, though it may visit other plant genera 
for nectar (Lewinsohn et al. 2005).
    The Natural Heritage Programs for the States of Colorado and Utah 
have assigned P. grahamii a global imperilment ranking of G2 and state 
imperilment rankings of S2. G2 and S2 rankings mean the species is 
imperiled at Global and State levels respectively. The International 
Union for the Conservation of Nature (IUCN) has given the species a 
ranking of ``Vulnerable''.

Summary of Factors Affecting the Species

    Section 4 of the Act and regulations (50 CFR part 424) promulgated 
to implement the listing provisions of the Act set forth the procedures 
for adding species to Federal lists. 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). These factors and their 
application to Penstemon grahamii Keck (Graham's beardtongue) are as 
follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

Energy Resources
    P. grahamii has been listed as a candidate species since 1980, in 
part due to the potential threat of increased energy development (U.S. 
Fish and Wildlife Service 2004). The habitat of P. grahamii is a series 
of knolls and slopes of raw oil shale derived from Green River geologic 
formation. Oil shale resources associated with the Green River 
formation underlie approximately 16,000 square miles (41,000 sq. km) 
and represent the largest known concentration of oil shale in the world 
(Dyni 2003; T. Lonnie, Senate Energy and Natural Resources Committee 
Oversight Hearing on Oil Shale Development Efforts, April 12, 2005). P. 
grahamii only grows directly on surface exposures of the richest oil 
shale bearing strata in the Mahogany ledge and closely associated 
strata, making the species highly vulnerable to extirpation consequent 
to exploitation of oil shale strata (Cashion 1967 [see map page 31]; 
Bureau of Mines 1988; U.S. Fish and Wildlife Service 2005; Shultz and 
Mutz 1979; Neese and Smith 1982 [see map overlay Vol. 5]).
    Impacts to the species from energy development have been largely 
avoided to date because energy development within the species habitat 
has been minimal. For example, under existing development scenarios 
only 5 of 109 known occurrences (4.6 percent) have oil and gas wells 
located within them (U.S. Fish and Wildlife Service 2005). Where 
development has occurred, BLM has provided conservation measures and 
moved well or pipeline locations to minimize effects, largely due to 
attention provided the species because of its candidate status and BLM 
sensitive species status (R. Specht, BLM, 2005, per. comm.). Similarly, 
oil shale and tar sands development, as projected decades earlier, have 
not yet reached their potential due largely to limitations of past 
technology and unfavorable economics. The first interest in oil shale 
extraction occurred in the latter years of and immediately following 
World War I, however limited accessibility and low economic viability 
resulted in declining interest. More recently in the 1970-1980s, BLM 
made oil shale resources on public lands available through the Oil 
Shale Prototype Program, which was designed to allow companies to 
develop and refine the technology for extracting oil from oil shale. 
Since then, during the mid-1980s and 1990s, interest in oil shale 
development continued to lag because of declining petroleum prices 
(World Energy Council 2005; U.S. Fish and Wildlife Service 2005; T. 
Lonnie, Senate Energy and Natural Resources Committee Oversight Hearing 
on Oil Shale Development Efforts, April 12, 2005). However, recent 
Federal policy direction, technological advances, world oil demand, and 
economics have increased the desirability to invest in oil shale and 
other energy development in Utah and Colorado:
Federal Policy Direction
    The Energy Policy Act of 2005 establishes that oil shale, tar 
sands, and other strategic unconventional fuels should be developed to 
reduce the nation's dependence on imported oil. Section 309(m)(1)(B) 
identifies the Green River Region, including the entire range of P. 
grahamii (U.S. Fish and Wildlife Service 2005), as a priority for oil 
shale and tar sand development.
    Provisions of the Energy Policy Act of 2005 may provide economic 
incentives for oil shale development. For example, previous Mineral 
Leasing Act of 1920 restrictions limited oil shale lease sizes to 5,120 
acres (ac) ( 2,072 hectares (ha)), and restricted leasing opportunities 
to just one lease tract per individual or corporation. Lease size 
restrictions effectively limited development because of a lack of 
available acreage to accommodate necessary infrastructure and 
facilities. The Energy Policy Act of 2005 now allows an individual or 
corporation to acquire multiple lease tracts up to 50,000 acres in any 
one state, removing the restrictions of the Mineral Leasing Act of 1920 
(Bartis 2005).
    Energy Policy Act of 2005 provisions require the Interior 
Department to complete a programmatic Environmental Impact Statement by 
February 2007 for a commercial leasing program for oil shale and tar 
sands resources on public lands. On December 13, 2005, the BLM 
published a notice of intent to prepare the document (70 FR 73791).
    The Energy Bill of 2005 enables leasing of oil and gas and tar 
sands separately, even when the two are found in the same area. 
Previously, the law required a combined tar sands/oil and gas lease, 
effectively delaying leasing and extraction of oil and gas in tar sand 
areas.
    BLM has established an Oil Shale Task Force to address access to 
unconventional resources such as oil shale on public lands; impediments 
to oil shale development on public lands; industry interest in research 
and development and commercial development opportunities on the public 
lands; and Secretarial options to capitalize on the opportunities.
    On June 9, 2005, BLM announced in the Federal Register its intent 
to initiate a program to facilitate research, development, and 
demonstration (RD&D) of oil shale recovery technologies on Federal 
lands (70 FR 33753). BLM recognizes this effort as a first step toward 
successful development of oil shale reserves. The Bureau of Land 
Management received 19 nominations for oil shale research and 
development projects; eight nominations were received for projects in 
the Uinta Basin of Utah (BLM 2005, U.S. Fish and Wildlife Service 
2005). Response to the RD&D request demonstrates significant interest 
in oil shale development (Bureau Land Management 2005).
Technological Advances
    Oil shale: ``Oil shale'' is hard calcareous shale, called marl, 
impregnated with an organic compound called kerogen, a precursor to 
synthetic petroleum. Organic kerogen within the oil shale rock can be 
heated and vaporized at high temperatures to form synthetic petroleum. 
Extraction occurs in a process called retorting which requires heating 
of the rock to about 900 degrees Fahrenheit (480 degrees Celsius) 
through in-situ or surface retorting methods. Surface retorting 
involves mining ore on the surface or

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underground, crushing it, and placing it in a retort; shale oil is 
removed and upgraded by the addition of hydrogen. There are currently 
no active commercial surface retorts in the United States. Oil-Tech 
currently operates a small, cost-effective commercial retort within the 
range of Penstemon scariosus var. albifluvis in Utah and plans to 
expand its operation to produce 20,000 barrels of oil per day in the 
next two years at a cost no greater than $30 per barrel (J. Savage, 
House Subcommittee on Energy and Mineral Resources, June 23, 2005). In-
situ retorting involves injection of a heat source into the rock strata 
to produce oil from the kerogen. Shale oil then flows to a well and is 
pumped to the surface. Shell Oil has successfully completed at least 
five field tests using a modified in-situ conversion process (Johnson 
et al. 2004a; S. Mut, Senate Energy and Natural Resources Committee 
Oversight Hearing on Oil Shale Development Efforts, April 12, 2005). 
Successful oil shale development has also recently occurred in 
Australia and the Republic of Estonia (T. Lonnie, Senate Energy and 
Natural Resources Committee Oversight Hearing on Oil Shale Development 
Efforts, April 12, 2005).
    Tar Sands: The tar sand resource rock layer is impregnated with a 
heavy oil substance called bitumen, exhibiting chemical characteristics 
similar to petroleum. (Blackett 1996). Current technologies for tar 
sands extraction involves either strip mining, as in the province of 
Alberta Canada (U.S. Department of Energy 1997), or 2.5-acre well 
spacing of surface extraction and injection facilities in addition to 
necessary access roadways and pipelines. (BIA 2002)
World Oil Demand and Economics
    The Office of Naval Petroleum and Oil Shale Reserves anticipates 
increased world demand for oil reserves with declining resource 
availability, driven largely by developing Asian economies (Bunger et 
al. 2004, Johnson et al. 2004b). Feasibility of oil shale and tar sands 
development relies largely on economic profitability which is directly 
tied to the price volatility of conventional petroleum and market 
demand. Renewed oil shale and tar sand interest is partly due to crude 
oil price spikes in 2004 and 2005 (Johnson et al. 2004b).
    Alberta's successful commercialization of tar sands serves as a 
model for a profitable oil shale industry in the United States (Johnson 
et al. 2004b).
    A recent report and model by Rand Corporation (Bartis et al. 2005) 
estimated that oil shale extraction costs would be approximately $75-90 
per barrel initially, and $30-$40 per barrel after a billion barrels of 
cumulative production. However, the report also concluded that recent 
advances in thermally conductive in-situ conversion may enable oil 
shale to compete with crude oil at prices under $40 per barrel. Shell 
Oil estimates in-situ retorting costs are estimated at $30 per barrel 
(Bartis et al. 2005). Ongoing oil shale and tar sands extraction 
operations in Alberta cost less than $20 per barrel (Johnson et al. 
2004b). Based on technical and economic considerations, the Rand report 
(Bartis et al. 2005) projects initial commercial operations to occur in 
6-10 years and production growth to commence in 12 years. Oil shale 
deposits of the Green River formation of Colorado, Utah, and Wyoming 
contain potentially recoverable kerogen (synthetic petroleum) in excess 
of 1 trillion barrels (Cashion 1967).
    As discussed, Federal government policies, technological advances, 
and economics are now in place to advance oil shale, tar sands, and oil 
and gas development in areas also occupied by P. grahamii. The level of 
threats to P. grahamii populations has consequently increased. Increase 
in threat is directly related to the overlap of energy resources and 
known P. grahamii occurrences.
    One hundred five of 109 (96 percent) P. grahamii occurrences are in 
the Parachute Creek member of the Green River formation, the remaining 
4 sites are in oil shale strata of the Evacuation Creek member of the 
Green River formation (U.S. Fish and Wildlife Service 2005; Shultz and 
Mutz 1979; Neese and Smith 1982). Oil-shale beds are most numerous and 
important in the Parachute Member of the Green River formation, but the 
underlying Evacuation Creek member also contains a few beds of oil-
shale (Pruitt 1961). The 105 occurrences in the Parachute Creek member 
harbor an estimated 6,100 individuals or 98 percent of the species' 
estimated population of 6,200 (U.S. Fish and Wildlife Service 2005; 
Shultz and Mutz 1979; Neese and Smith 1982). The BLM designated the 
East Tavaputs Plateau and the Southeast Uinta Basin as Oil Shale Lease 
Areas in the 1970s. These lease areas cover 60 of 109 P. grahamii 
occurrences (U.S. Fish and Wildlife Service 2005). In addition, BLM 
designated the ``PR'' Springs Tar Sand Area to identify shallow 
bituminous sand deposits within P. grahamii habitat. The PR Springs tar 
sand area covers 54 of 109 P. grahamii occurrences (49 percent) (U.S. 
Fish and Wildlife Service 2005). In total, 96 of 109 (90 percent) P. 
grahamii occurrences are located in high-value oil shale or bituminous 
(tar sand) areas, comprising approximately 5,700 of the species 6,200 
individuals (92 percent of the total known population) (U.S. Fish and 
Wildlife Service 2005).
    The entire range of P. grahamii is also underlain with deposits of 
traditional hydrocarbon resources, primarily natural gas. However, as 
previously described, active wells are only located at five P. grahamii 
occurrence locations. Thirty-nine active wells are within 1 mile (1.6 
km) of P. grahamii occupied habitat. Future oil and gas development 
within P. grahamii habitat is likely. Oil and gas development, 
especially within the PR Springs tar sand area, will likely increase 
particularly due to the new Energy Policy Act of 2005 stipulations that 
will allow oil and gas development separate from tar sands extraction. 
The combined oil and gas and tar sand leasing provisions in place 
before the Energy Policy Act of 2005 had effectively removed 
traditional oil and gas leasing from significant portions of Federal 
lands in P. grahamii's largest population in the Seep Ridge population 
unit and in the southern portion of the species Evacuation Creek 
population unit. Those restrictions are now removed. Of the 109 
occurrences of P. grahamii, 69 (63 percent) are currently leased for 
oil and gas drilling, or are within established oil and gas fields and 
have active oil and gas drilling and resource extraction programs. 
Ninety-six of the species 109 known occurrences (88 percent) are within 
active seismic exploration areas (BLM 2003).
    Two natural gas field development projects within the Vernal BLM 
Field Office, Resource Development Group (RDG) and Gasco, are being 
planned in areas with known occurrences of Penstemon grahamii. RDG, for 
which NEPA is scheduled to be completed in January of 2006, entirely 
encompasses one P. grahamii occurrence, overlaps portions of six 
occurrences, and is immediately adjacent to another six occurrences. 
The Gasco project, for which the draft EIS is scheduled to be available 
in spring 2006, entirely encompasses five known P. grahamii 
occurrences. Two additional natural gas field development projects are 
being proposed in suitable habitat for which field surveys for P. 
grahamii have not been completed to determine presence of the species. 
These projects are the Dominion Exploration and Production Inc. and Mak 
J Energy project at Big Pack Mountain and the Enduring

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Resources company project at Saddletree Draw.
    The biological assessment (BA) for the RDG project states that the 
project could include destruction of P. grahamii occupied habitat, 
individual plants, and potentially suitable habitat. It further states 
that project activities have the potential to directly eliminate 
populations if project construction sites occur on occupied habitat. 
However, in part because of the plant's candidate status, and the 
current proposed listing action, BLM has committed to conduct plant 
surveys and avoid populations and suitable habitat (BLM 2005). Indirect 
effects such as incidental spread of noxious and exotic weeds or soil 
erosion may be more difficult to control. The BA concludes that 
construction activities could make individual P. grahamii populations 
more susceptible to weed infestation, subsequently decreasing plant 
biodiversity and insect (pollinator) biodiversity. Disturbed areas tend 
to foster invasion by exotic plant species; existing roads and well 
pads in the area have a higher density of annuals than undisturbed 
areas (BLM 2005). Placement of facilities and infrastructure such as 
roads, pipelines, and well pads can change water flow and the effects 
of erosion and sedimentation. Shale soils that provide habitat and 
microclimates for P. grahamii can be lost or altered by deposition of 
sediments, eventually causing the localized loss of populations (BLM 
2005).
    The species current status as a candidate species has provided the 
species interim protection on BLM Federal lands from the low level of 
oil and gas activities that have occurred to date (BLM 1995, 2002, 
2003, 2005). The BLM reports that conservation stipulations for the 
species associated with well locations has prevented adverse 
modification of the species habitat and possible loss of P. grahamii 
individuals (R. Specht, BLM, 2005, per. com.). Conservation measures 
include moving well pad and pipeline locations to avoid direct impacts 
to the species. These measures are likely effective protection 
mechanisms, particularly at current low development rates. Increased 
energy development in P. grahamii habitat could increase the likelihood 
of direct loss of individual plants and increased habitat loss and 
fragmentation.
    Oil shale and tar sands technologies include surface strip mining, 
underground mining, or in-situ retorting. All of these technologies 
involve surface disturbing activities that could cause habitat loss 
(Bartis 2005), and subsequent direct loss of plants and fragmentation 
of occupied habitats. Open pit mining will result in extensive and 
permanent changes to surface topography, erosion patterns, subsurface 
water quality, and flora and fauna (Johnson et al. 2004b, Bartis 2005), 
and hence to habitat components associated with P. grahamii similar to 
those previously described for oil and gas drilling. In-situ oil shale 
retorting appears to be much less disruptive to the landscape than 
surface mining, but facilities associated with surface-based drilling 
will cause at least decade-long displacement of wildlife, plants, and 
habitats (Bartis 2005). Oil shale mining, including underground mining, 
will also require new roads; power distribution systems; water storage 
and supply facilities; construction staging areas; hazardous materials 
handling facilities; and residential, commercial, and industrial 
buildings (Bartis 2005). In-situ tar sand extraction can involve 2.5 ac 
(1 ha) or less well spacing (BIA 2002, Schamel 2004), which in addition 
to necessary access roads and pipelines, leaves little to no available 
habitat for wildlife and plant habitat.
    From a biological perspective, habitat loss and fragmentation can 
result in decreased population size and reduced colonization capacity 
of plant species. The probability of habitat restoration and natural 
re-colonization by plants is also low following fragmentation of 
habitats (Soon 2003). P. grahamii are naturally distributed with large 
distances between known occurrences. Additional fragmentation within 
known occurrences could negatively affect long-term survival of these 
populations. Many of the P. grahamii occurrences are very small, less 
than 100 individuals, and often as small as ten or less individuals per 
location.
    Reducing the size of occupied habitat patches through habitat loss 
or fragmentation can result in higher extinction probabilities due to 
environmental, demographic, or genetic random events and effects 
associated with smaller sizes of remnant habitat, greater isolation 
from neighboring populations, and increased amounts of `edge' habitat 
(Jules 1998, Soon 2003). A study of the effects of fragmentation on a 
common trillium (Jules, 1998) demonstrated that the extinction of local 
populations of the common plant Trillium ovatum was more likely as a 
result of declining populations near edges.
    Reduced connectivity of habitat patches reduces seed and pollen 
dispersal between habitats. Smaller and isolated populations produce 
fewer seeds and pollen; and the populations attract fewer and lower 
diversity of seed and pollen dispersers (Paschke et al. 2002, Lienert 
2003, Soon 2003). Regional survival of plant species is threatened by 
fragmentation because it reduces connectivity and gene flow (Soon 
2003).
    We have no way to determine the exact locations of oil shale and 
tar sand facilities, or the technologies that will be selected; 
however, it is apparent that increased development will result in 
direct and indirect effects to plants and their habitats. The 
correspondence of P. grahamii habitat with energy reserves, lease 
areas, and planned actions will likely mean that at least some portion 
of P. grahamii habitat and populations will be threatened by increased 
development. The Rand Report also concluded that despite mitigation, 
reclamation, and compensation efforts, long-term residual damage and 
disruption is likely, particularly if surface mining and retorting are 
among the selected technologies (Bartis 2005).
Other Activities
    Grazing may have localized effects to P. grahamii. One site of P. 
grahamii is believed to have been eradicated by livestock trampling. 
The Dragon Sheep bed site first recorded in a 1982 survey (Neese and 
Smith 1982) has not been relocated in recent years. This is an area of 
heavy sheep grazing, and trampling of its habitat is thought to have 
caused the possible extirpation of this population (J.L. England, pers, 
comm. U.S. Fish and Wildlife Service, 2003). However, no research has 
been conducted to document effects of grazing to P. grahamii, and we 
have no substantial information indicating it to be a population level 
threat.
    To date little ORV use has been observed in the species range. 
Federal and industry personnel are increasingly utilizing ORV in oil 
and gas field survey and site location development prior to the 
establishment of oil field road networks (Robert Specht, BLM, Vernal, 
Utah 2005, pers. comm.). However, we do not have any information 
indicating that ORV use is a threat to P. grahamii or its habitat.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Penstemon grahamii is a species of horticultural interest. The 
species is advertised on the internet and plants and seed are 
available. The Service, however, has no information concerning the 
impact of collection on wild populations in the species native habitat. 
In 2004, a Penstemon collector approached Red Butte Garden (the Utah

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State botanical garden located at the University of Utah) inquiring on 
how to obtain seeds of P. grahamii (J. Lewinsohn, pers. comm. 2004). 
Several internet sites identify P. grahamii as a desirable specimen 
plant. Given the rarity and beauty of this species, over-collection 
could be a problem for the species.

C. Disease or Predation

    Penstemon grahamii is grazed by wildlife, including rodents, 
rabbits, antelope, deer, elk, and insects (Shultz and Mutz 1979; Neese 
and Smith 1982; R. Specht, BLM, pers. comm., 2005; Lewinsohn, pers. 
comm., 2005). The species also is grazed by livestock, primarily sheep. 
Recent attempts to establish pollination studies and population 
monitoring plots for the species were complicated by the general lack 
of concentrations of individual plants large enough to conduct those 
studies (Lewinsohn, pers. comm. 2005). Lewinsohn also reported that all 
sites visited in southern Uintah County, Utah, were either too small or 
too heavily grazed to conduct suitable pollination studies. There are, 
however, no studies on the effects of grazing on this species.

D. The Inadequacy of Existing Regulatory Mechanisms

    No Federal or State laws or regulations specifically protect 
Penstemon grahamii. The species is not protected by the Convention on 
International Trade in Endangered Species of Wild Fauna and Flora 
(CITES). The BLM administratively recognizes this species for special 
management consideration, but does not have the legal authority to 
require Federal mineral lease holders to modify mineral recovery plans 
and on-the-ground actions solely to protect this species. Some 
populations occur on private lands, which were given mineral entry 
patents during the 1920s specifically because of oil shale values. 
There is no regulatory protection for the species on private lands.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    We note the presence of exotic weeds within occupied Penstemon 
grahamii sites. These exotic species include Bromus tectorum 
(cheatgrass) and Halogeton glomeratus (halogeton) (L. England, U.S. 
Fish and Wildlife Service, pers. obs. 2003). These invasive exotic 
species are most abundant along roads and well site locations (R. 
Specht, BLM, pers. comm. 2004). These species compete with P. grahamii, 
thereby further degrading habitat quality.
    Little is known concerning the species' pollination biology. The 
BLM is currently funding pollination biology studies (R. Bolander, BLM, 
pers. comm. 2005; J. Lewinsohn, pers. comm. 2005). Collections and 
observations of pollinators to the flowers of Penstemon grahamii have 
been limited over the past two flowering seasons because of the paucity 
of flowering plants. The most consistent pollinator of these species is 
likely to be the wasp Pseudomasaris vespoides (V. Tepedino Utah State 
University, pers. comm. 2005). Because flowers of P. grahamii appear to 
be very scarce, this plant species will usually be unable to support a 
viable population of Pseudomasaris vespoides. In all likelihood, 
successful reproduction by P. grahamii must depend on the occurrence of 
other concurrently blooming Penstemon species which support and keep 
abundant populations of Pseudomasaris vespoides in the area.
    Low population numbers and habitat fragmentation pose a threat to 
rare plant species' genetic potential to adapt to changing 
environmental conditions (Matthies et al. 2004). Three of the species 5 
population habitat units have 200 or fewer individuals in addition 8 
smaller occurrences with populations of 20 or fewer individuals are 
isolated and 10 km (6.2 mi) or more from the core area of the five P. 
grahamii population units. These smaller population sites of Penstemon 
grahamii may not be at levels that would ensure the species long-term 
demographic stability and genetic viability. The effects of habitat 
degradation and fragmentation caused by human activities in concert 
with the effects of deleterious natural phenomena, such as drought, may 
lead to the extirpations of local occurrences or possible extinction. 
At present there are no studies or information on these threats 
relative directly to P. grahamii.

Determination

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to Penstemon grahamii. Habitat destruction and degradation as a 
consequence of energy development throughout the species' range pose a 
serious threat to long-term viability. Habitat loss and fragmentation 
also will exacerbate threats arising from very low natural population 
numbers and restricted distribution; natural phenomena such as drought 
and wildlife grazing; livestock grazing; and horticultural collection. 
On the basis of the best available information, we are proposing to 
list Penstemon grahamii as a threatened species, and we herein propose 
this listing. Threatened status reflects the vulnerability of this 
species to factors that negatively affect the species and its limited 
and restricted habitat. While not in immediate danger of extinction, P. 
grahamii may have the strong potential to become an endangered species 
in the foreseeable future if present threats increase and projected 
energy development scenarios, especially oil shale and tar sand, occur.
    We are soliciting comments on this proposed rule and threats to the 
species. Despite recent policy direction (e.g., Energy Policy Act 
2005), the long-term technological and economic feasibility of oil 
shale and tar sands development are uncertain (Bartis 2005). We seek 
specific information on any available preliminary results from the 
recent lease nominations for research, development, and demonstration 
of oil shale recovery technologies on Bureau of Land Management (BLM) 
lands; success of ongoing oil shale or tar sands development projects, 
particularly in the Green River formation; available economic and 
technological analyses; and specific information detailing definitive 
effects of these operations to environmental resources, as primarily 
related to losses of plant individuals, loss or fragmentation of plant 
habitat, and loss or declines in plant pollinators. Similarly, we 
request any available information on ongoing or proposed oil and gas 
drilling activities within P. grahamii habitat.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness and 
conservation by Federal, State, and local agencies, private 
organizations, and individuals. The Act provides for possible 
cooperation with the States and requires that recovery actions be 
carried out for all listed species. The protection required of Federal 
agencies and the prohibitions against certain activities involving 
listed plants are discussed in ``Effect of Critical Habitat 
Designation'' for critical habitat and are further discussed, in part, 
below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation provision

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of the Act are codified at 50 CFR part 402. Section 7(a)(4) requires 
Federal agencies to confer with the Service on any action that is 
likely to jeopardize the continued existence of a species proposed for 
listing or result in destruction or adverse modification of proposed 
critical habitat. If a species is listed subsequently, section 7(a)(2) 
requires Federal agencies to ensure that activities they authorize, 
fund, or carry out are not likely to jeopardize the continued existence 
of the species or destroy or adversely modify its critical habitat. If 
a Federal action may affect a listed species or its critical habitat, 
the responsible Federal agency must enter into formal consultation with 
the Service.
    Federal agency actions that may require conference and/or 
consultation as described in the preceding paragraph include BLM 
leasing and permitting of oil and gas resources, oil shale, tar sands, 
Gilsonite, and other leasable minerals on lands under their 
jurisdiction. Additionally BLM must consult on livestock grazing leases 
and management, and roads and ORV travel regulations and management. 
Department of Energy actions involving oil and gas and oil shale 
development also may require conference and or consultation. Department 
of Transportation activities involving roads or highways within the 
species habitat also may require conference and/or consultation.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to threatened plants. 
All prohibitions of section 9(a)(2) of the Act, implemented by 50 CFR 
17.71 apply. These prohibitions, in part, make it illegal for any 
person subject to the jurisdiction of the United States to import or 
export, transport in interstate or foreign commerce in the course of a 
commercial activity, sell or offer for sale in interstate or foreign 
commerce, or remove and reduce the species to possession from areas 
under Federal jurisdiction. In addition, for plants listed as 
endangered, the Act prohibits the malicious damage or destruction on 
areas under Federal jurisdiction and the removal, cutting, digging up, 
or damaging or destroying of such plants in knowing violation of any 
State law or regulation, including State criminal trespass law. Section 
4(d) of the Act allows for the provision of such protection to 
threatened species through regulation. This protection may apply to 
this species in the future if regulations are promulgated. Seeds from 
cultivated specimens of threatened plants are exempt from this 
prohibition provided that their containers are marked ``Of Cultivated 
Origin.'' Certain exceptions to the prohibitions apply to agents of the 
Service and State conservation agencies.
    The Act and 50 CFR 17.72 also provide for the issuance of permits 
to carry out otherwise prohibited activities involving threatened 
plants under certain circumstances. Such permits are available for 
scientific purposes and to enhance the propagation and survival of the 
species. For threatened plants, permits also are available for 
botanical or horticultural exhibition, educational purposes, or special 
purposes consistent with the purposes of the Act. Penstemon grahamii is 
an extremely attractive plant and is known to be in cultivation. It is 
reasonable to expect a demand for the species for horticultural 
purposes. However the species is very rare in its natural environment. 
Trade permits may be sought, but should be granted for only activities 
contributing to the species overall conservation. Requests for copies 
of the regulations regarding listed species and inquires about 
prohibitions and permits may be addressed to U.S. Fish and Wildlife 
Service, 134 Union Blvd., Lakewood, Colorado 80228.

Critical Habitat

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    Attention to and protection of habitat is paramount to successful 
conservation actions. The role that designation of critical habitat 
plays in protecting habitat of listed species, however, is often 
misunderstood. As discussed in more detail below in the discussion of 
exclusions under ESA section 4(b)(2), there are significant limitations 
on the regulatory effect of designation under ESA section 7(a)(2). In 
brief, (1) designation provides additional protection to habitat only 
where there is a federal nexus; (2) the protection is relevant only 
when, in the absence of designation, destruction or adverse 
modification of the critical habitat would in fact take place (in other 
words, other statutory or regulatory protections, policies, or other 
factors relevant to agency decision-making would not prevent the 
destruction or adverse modification); and (3) designation of critical 
habitat triggers the prohibition of destruction or adverse modification 
of that habitat, but it does not require specific actions to restore or 
improve habitat.
    Currently, only 470 species, or 37 percent of the 1,264 listed 
species in the U.S. under the jurisdiction of the Service, have 
designated critical habitat. We address the habitat needs of all 1,264 
listed species through conservation mechanisms such as listing, section 
7 consultations, the section 4 recovery planning process, the section 9 
protective prohibitions of unauthorized take, section 6 funding to the 
States, the section 10 incidental take permit process, and cooperative, 
nonregulatory efforts with private landowners. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    In considering exclusions of areas proposed for designation, we 
evaluated the benefits of designation in light of Gifford Pinchot Task 
Force v. United States Fish and Wildlife Service. In that case, the 
Ninth Circuit invalidated the Service's regulation defining 
``destruction or adverse modification of critical habitat.'' In 
response, on December 9, 2004, the Director issued guidance to be 
considered in making section 7 adverse modification determinations. 
This proposed critical habitat designation does not use the invalidated 
regulation in our consideration of the benefits of including areas in 
this final designation. The Service will carefully manage future 
consultations that analyze impacts to designated critical habitat, 
particularly those that appear to be resulting in an adverse 
modification determination. Such consultations will be reviewed by the 
Regional Office prior to finalizing to ensure that an adequate analysis 
has been conducted that is informed by the Director's guidance.
    On the other hand, to the extent that designation of critical 
habitat provides protection, that protection can come at significant 
social and economic cost. In addition, the mere administrative process 
of designation of critical habitat is expensive, time-consuming, and 
controversial. The current statutory framework of critical habitat, 
combined with past judicial interpretations of the statute, make 
critical habitat the subject of excessive litigation. As a result, 
critical habitat designations are driven by litigation and courts 
rather than biology, and made at a time and under a time frame that 
limits our ability to obtain and evaluate the scientific and other 
information required to make the designation most meaningful.
    In light of these circumstances, the Service believes that 
additional agency discretion would allow our focus to return to those 
actions that provide the greatest benefit to the species most in need 
of protection.

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Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with limited ability to provide for public participation or 
to ensure a defect-free rulemaking process before making decisions on 
listing and critical habitat proposals, due to the risks associated 
with noncompliance with judicially imposed deadlines. This in turn 
fosters a second round of litigation in which those who fear adverse 
impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, and is very 
expensive, thus diverting resources from conservation actions that may 
provide relatively more benefit to imperiled species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA). These costs, which are not 
required for many other conservation actions, directly reduce the funds 
available for direct and tangible conservation actions.

Critical Habitat Background

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. Conservation, as defined under section 3 of the Act means 
to use and the use of all methods and procedures which are necessary to 
bring any endangered species or threatened species to the point at 
which the measures provided pursuant to the Act are no longer 
necessary. Such methods and procedures include, but are not limited to, 
all activities associated with scientific resources management such as 
research, census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot be otherwise relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands. Section 7 is a 
purely protective measure and does not require implementation of 
restoration, recovery, or enhancement measures.
    To be included in a critic