Endangered and Threatened Wildlife and Plants; Determination of Status for the Gierisch Mallow and Designation of Critical Habitat, 49893-49919 [2012-20086]
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Vol. 77
Friday,
No. 160
August 17, 2012
Part III
Department of the Interior
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Fish and Wildlife Service
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Determination of Status
for the Gierisch Mallow and Designation of Critical Habitat; Proposed Rule
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Federal Register / Vol. 77, No. 160 / Friday, August 17, 2012 / Proposed Rules
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R2–ES–2012–0049;
4500030113]
RIN 1018–AY58
Endangered and Threatened Wildlife
and Plants; Determination of Status for
the Gierisch Mallow and Designation of
Critical Habitat
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service, propose to list as
endangered the Gierisch mallow and
propose critical habitat for the species
under the Endangered Species Act. This
action is being taken as the result of a
court-approved settlement agreement.
These are proposed regulations, and if
finalized, the effect of these regulations
will be to add the species to the List of
Endangered or Threatened Plants and to
designate critical habitat under the
Endangered Species Act.
DATES: We will accept comments
received or postmarked on or before
October 16, 2012. We must receive
requests for public hearings, in writing,
at the address shown in FOR FURTHER
INFORMATION CONTACT by October 1,
2012.
SUMMARY:
You may submit comments
by one of the following methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov and search for
Docket No. FWS–R2–ES–2012–0049,
which is the docket number for this
rulemaking. Then, in the Search panel
on the left side of the screen, under the
Document Type heading, click on the
Proposed Rules link to locate this
document. You may submit a comment
by clicking on ‘‘Comment Now!.’’
(2) By hard copy: Submit by U.S. mail
or hand-delivery to: Public Comments
Processing, Attn: FWS–R2–ES–2012–
0049; Division of Policy and Directives
Management; U.S. Fish and Wildlife
Service; 4401 N. Fairfax Drive, MS
2042–PDM; Arlington, VA 22203.
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ADDRESSES:
We request that you send comments
only by the methods described above.
We will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see the
Public Comments section below for
more information).
The coordinates, or plot points, or
both from which the critical habitat
maps are generated are included in the
administrative record for this
rulemaking and are available at (https://
www.fws.gov/southwest/es/arizona/),
https://www.regulations.gov at Docket
No. FWS–R2–ES–2012–0049, and at the
Arizona Ecological Services Field Office
(see FOR FURTHER INFORMATION CONTACT).
Any additional tools or supporting
information that we may develop for
this rulemaking will also be available at
the Fish and Wildlife Service Web site
and Field Office set out above, and may
also be included in the preamble and/
or at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Steve Spangle, Field Supervisor, U.S.
Fish and Wildlife Service, Arizona
Ecological Services Field Office, 2321
West Royal Palm Road, Suite 103,
Phoenix, AZ 85021; by telephone (602)
242–0210; or by facsimile (602) 242–
2513. Persons who use a
telecommunications device for the deaf
(TDD) may call the Federal Information
Relay Service (FIRS) at 800–877–8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
This document consists of a proposed
rule to list as endangered Sphaeralcea
gierischii (Gierisch mallow) and to
designate critical habitat for Gierisch
mallow. In this proposed rule, we will
refer to Sphaeralcea gierischii as
Gierisch mallow.
Why we need to publish a rule. Under
the Endangered Species Act, a species
may warrant protection through listing
if it is endangered or threatened
throughout all or a significant portion of
its range. In this proposal, we are
explaining why Gierisch mallow
warrants protection under the
Endangered Species Act. This rule
proposes to list the Gierisch mallow as
endangered throughout its range in
Mohave County, Arizona, and
Washington County, Utah, and proposes
Federal
to designate critical habitat for the
species. In total, approximately 5,189
hectares (ha) (12,822 acres (ac)) are
proposed for designation as critical
habitat in both Arizona and Utah.
The Endangered Species Act provides
the basis for our action. Under the
Endangered Species Act, we can
determine that a species is endangered
or threatened based on any of 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. Factors supporting the
proposed endangered status for Gierisch
mallow include:
• Habitat loss and degradation of
appropriate gypsum soils as a result of
mining operations and recreation
activities, including off-highway vehicle
(OHV) use, target shooting, and trash
dumping;
• Inadequate existing regulatory
mechanisms that allow significant
habitat-based impacts, such as
regulations governing mining
operations;
• The spread of nonnative, invasive
plant species such as Bromus tectorum
(cheatgrass) and B. rubens (red brome)
that can alter native vegetation and
promote conditions that support
wildfires; and
• Other natural or manmade factors,
including the small population size of
Gierisch mallow, natural environmental
variability, and climate conditions, such
as sustained drought.
This rule proposes designation of
critical habitat for Gierisch mallow.
Under the Endangered Species Act, we
designate specific areas as critical
habitat to foster conservation of listed
species. Future actions funded,
permitted, or otherwise carried out by
Federal agencies will be reviewed to
ensure they do not adversely modify
critical habitat. Critical habitat does not
affect private actions on private lands
absent Federal funding. We are
proposing the following areas as critical
habitat for Gierisch mallow:
State
Critical habitat unit
Arizona
Utah
Arizona
Unit 1. Starvation Point .....
Unit 2. Black Knolls ...........
0 ........................................
3,586 ha (8,862 ac) ..........
1,022 ha (2,526 ac) ..........
0 ........................................
316 ha (782 ac) ................
263 ha (651 ac) ................
1,339 ha (3,309 ac).
3,850 ha (9,513 ac).
Totals ..........................
3,586 ha (8,862 ac) ..........
1,022 ha (2,526 ac) ..........
580 ac (1,434 ac) ..............
5,189 ha (12,822 ac).
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Federal Register / Vol. 77, No. 160 / Friday, August 17, 2012 / Proposed Rules
We are preparing an economic
analysis. To ensure that we consider the
economic impacts of designating critical
habitat, we are preparing an economic
analysis of the proposed critical habitat
designation. We will publish an
announcement and seek public
comments on the draft economic
analysis when it is completed.
We will request peer review of the
methods used in our proposal. We will
specifically request that several
knowledgeable individuals with
scientific expertise in this species or
related fields review the scientific
information and methods that we used
in developing this proposal.
We are seeking public comment on
this proposed rule. Anyone is welcome
to comment on our proposal or provide
additional information on the proposal
that we can use in making a final
determination on the status of this
species. Please submit your comments
and materials concerning this proposed
rule by one of the methods listed in the
ADDRESSES section. Within 1 year
following the publication of this
proposal, we will publish in the Federal
Register a final determination
concerning the listing of the species and
the designation of its critical habitat or
withdraw the proposal if new
information is provided that supports
that decision.
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Public Comments
We intend that any final action
resulting from this proposed rule will be
based on the best scientific and
commercial data available and be as
accurate and as effective as possible.
Therefore, we request comments or
information from other concerned
governmental agencies, Native
American tribes, the scientific
community, industry, or any other
interested parties concerning this
proposed rule. We particularly seek
comments concerning:
(1) Biological, commercial trade, or
other relevant data concerning any
threats (or lack thereof) to this species
and regulations that may be addressing
those threats.
(2) Additional information concerning
the historical and current status, range,
distribution, and population size of this
species, including the locations of any
additional populations of this species.
(3) Any information on the biological
or ecological requirements of the species
and ongoing conservation measures for
the species and its habitat.
(4) Current or planned activities in the
areas occupied by the species and
possible impacts of these activities on
this species.
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(5) The reasons why we should or
should not designate habitat as ‘‘critical
habitat’’ under section 4 of the
Endangered Species Act of 1973, as
amended (Act) (16 U.S.C. 1531 et seq.)
including whether there are threats to
the species from human activity, the
degree of which can be expected to
increase due to the designation, and
whether that increase in threat
outweighs the benefit of designation
such that the designation of critical
habitat may not be prudent.
(6) Specific information on:
(a) The amount and distribution of
Gierisch mallow habitat;
(b) What areas, that were occupied at
the time of listing (or are currently
occupied) and that contain features
essential to the conservation of the
species, should be included in the
designation and why;
(c) Special management
considerations or protection that may be
needed in critical habitat areas we are
proposing, including managing for the
potential effects of climate change; and
(d) What areas not occupied at the
time of listing are essential for the
conservation of the species and why.
(7) Land use designations and current
or planned activities in the subject areas
and their possible impacts on proposed
critical habitat.
(8) Information on the projected and
reasonably likely impacts of climate
change on the Gierisch mallow and
proposed critical habitat.
(9) Any probable economic, national
security, or other relevant impacts of
designating any area that may be
included in the final designation; in
particular, we seek information on any
impacts on small entities or families,
and the benefits of including or
excluding areas that exhibit these
impacts.
(10) Whether any specific areas we are
proposing for critical habitat
designation should be considered for
exclusion under section 4(b)(2) of the
Act, and whether the benefits of
potentially excluding any specific area
outweigh the benefits of including that
area under section 4(b)(2) of the Act, in
particular for those areas that are
currently being mined for gypsum or
proposed to be mined for gypsum in the
foreseeable future.
(11) Whether we could improve or
modify our approach to designating
critical habitat in any way to provide for
greater public participation and
understanding, or to better
accommodate public concerns and
comments.
Please note that submissions merely
stating support for or opposition to the
action under consideration without
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49895
providing supporting information,
although noted, will not be considered
in making a determination, as section
4(b)(1)(A) of the Act directs that
determinations as to whether any
species is a threatened or endangered
species must be made ‘‘solely on the
basis of the best scientific and
commercial data available.’’
You may submit your comments and
materials concerning this proposed rule
by one of the methods listed in the
ADDRESSES section. We request that you
send comments only by the methods
described in the ADDRESSES section.
If you submit information via https://
www.regulations.gov, your entire
submission—including any personal
identifying information—will be posted
on the Web site. If your submission is
made via a hardcopy that includes
personal identifying information, you
may request at the top of your document
that we withhold this information from
public review. However, we cannot
guarantee that we will be able to do so.
We will post all hardcopy submissions
on https://www.regulations.gov. Please
include sufficient information with your
comments to allow us to verify any
scientific or commercial information
you include.
Comments and materials we receive,
as well as supporting documentation we
used in preparing this proposed rule,
will be available for public inspection
on https://www.regulations.gov, or by
appointment, during normal business
hours, at the U.S. Fish and Wildlife
Service, Arizona Ecological Services
Field Office (see FOR FURTHER
INFORMATION CONTACT).
Previous Federal Actions
The Gierisch mallow was included in
the June 25, 2007, petition by WildEarth
Guardians to the Service seeking the
listing of 475 species in the
southwestern United States. Based on
information we received in that petition
and information readily available in the
Service’s files, the Service added
Gierisch mallow as a candidate for
listing in the December 10, 2008,
Candidate Notice of Review (73 FR
75176). Species on the candidate list are
those fish, wildlife, and plants for
which we have sufficient information
on biological vulnerability and threats
to support the preparation of a listing
proposal, but for which development of
a listing regulation is precluded by other
higher listing priorities. Since 2008, the
listing priority number for Gierisch
mallow has been a 2, indicating a
species with threats that are both
imminent and high in magnitude in
accordance with our priority guidance
published on September 21, 1983 (48 FR
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43098). Gierisch mallow has remained a
candidate in subsequent Candidate
Notices of Reviews (74 FR 57804,
November 9, 2009; 75 FR 69222,
November 10, 2010; 76 FR 66370,
October 26, 2011).
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Background
It is our intent to discuss below only
those topics directly relevant to the
proposed listing of the Gierisch mallow
as endangered and the proposed critical
habitat designation.
Species Information
Gierisch mallow is a perennial,
flowering member of the mallow family.
It produces few to many stems from a
woody caudex (short, thickened, woody
stem that is usually subterranean or at
ground level). The stems are 43 to 103
centimeters (cm) (17 to 41 inches (in))
tall, and are often dark red-purple. The
foliage is bright green and glabrous (not
hairy). The leaf blades are 1.2 to 4
centimeters (cm) (0.47 to 1.57 inches
(in)) long; 1 to 5 cm (0.4 to 1.9 in) wide;
and usually longer than wide. The
leaves are usually flat and egg-shaped;
the leaf base is heart-shaped to truncate,
with 3 to 5 lobes. The inflorescence is
compound, with more than one flower
per node. The outer envelope of the
flower is 0.5 to 1.0 cm (0.2 to 0.4 in)
long, green, and uniformly glabrous, and
the orange petals are 1.5 to 2.5 cm (0.6
to 0.98 in) long (Atwood and Welsh
2002, p. 161).
Gierisch mallow was named as a
unique, distinct species in 2002
(Atwood and Welsh 2002, p. 159). This
species of mallow is distinguished from
similar species, such as Sphaeralcea
rusbyi (Rusby’s globemallow), by the
glabrous (smooth) foliage, few or no
stellate (star-shaped) hairs restricted to
the leaf margins, larger flowers, and
restricted range and habitat.
Another closely related species is S.
moorei (Moore’s globemallow);
distinguishing characters are the 3 to 5parted narrow lobes, bright green leaves,
and different habitat. As discussed by
Atwood and Welsh (2002, p. 159), the
genus Sphaeralcea consists of taxa
whose morphological distinctions are
compromised by overlap of many
characters. The characteristics of the
mature fruiting carpels (seed-bearing
structures) are one of the more
important distinguishing characters, but
specimens were rarely collected with
mature carpels. Atwood and Welsh
(2002, pp. 161–163) collected
globemallow species in northern
Arizona and southern Utah, and
reviewed previous collections. The
characteristics described in their 2002
taxonomic key allow for the
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discrimination of the related and similar
taxa known to occur in southern Utah
and adjacent northern Arizona, thus
making Gierisch mallow a species and,
therefore, a listable entity under the Act.
The work was published in the peerreviewed journal Novon, which
publishes short articles with the
primary purpose of the establishment of
nomenclature (scientific naming) of
vascular plants. Dr. Atwood and Dr.
Welsh are very familiar with the flora of
Utah; Dr. Atwood is the Collections
Manager of the S. L. Welsh Herbarium,
and Dr. Welsh is Emeritus Curator of
Vascular Plants at Brigham Young
University, Utah. After careful review of
the 2002 Atwood and Welsh publication
and its recognition by the Integrated
Taxonomic Information System (ITIS
2012) and its inclusion in the Utah Rare
Plant Guide (Utah Rare Plants 2012), it
is our conclusion that Gierisch mallow
is a valid species because the
characteristics described above can be
used to distinguish this species from
similar species. We also consider it a
separate species due to its acceptance in
peer-reviewed literature and recognition
by taxonomic authorities, as described
above.
Biology, Habitat, and the Current Range
Gierisch mallow is only found on
gypsum outcrops associated with the
Harrisburg Member of the Kaibab
Formation in northern Mohave County,
Arizona, and adjacent Washington
County, Utah (Atwood and Welsh 2002,
p. 161). The Harrisburg Member is the
most recent (topmost) exposed geologic
layer of the Kaibab Formation. The
Harrisburg Member is known for its
soils containing high levels of gypsum
(gypsiferous soils) (Biek and Hayden
2007, p. 58). The Kaibab Formation
comprises a continuous layer of exposed
limestone rock in the Grand Canyon
region (USGS 2012, p. 1). The
surrounding plant community is warm
desertscrub (Mojave desertscrub). Very
little is known about the life history of
the Gierisch mallow, as it was only
recently described. The species may be
perennial because it is woody at the
base and the same individuals have
been observed for more than one year.
It dies back to the ground during the
winter and re-sprouts from the base
during late winter and spring (January
to March), depending on daytime
temperatures and rainfall. Information
from the Bureau of Land Management
(BLM) indicates that many of the
Gierisch mallow populations occur on
hillsides or steep slopes. The
pollination system (self-pollinated or
obligate out-crosser), seed dispersal
mechanisms, and the conditions under
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which seeds germinate are not known.
Although we do not know how the
species is pollinated, other species of
the genus Sphaeralcea (globemallows)
are pollinated by Diadasia diminuta
(globemallow bee), which specializes in
pollinating plants of this genus.
Globemallow bees are considered
important pollinators for globemallows
(Tepedino 2010, p. 2). These solitary
bees, as well as other Diadasia species,
are known to occur within the range of
the Gierisch mallow (Sipes and
Tepedino 2005, pp. 490–491; Sipes and
Wolf 2001, pp. 146–147), so it is
reasonable to assume that they are
potential pollinators of Gierisch mallow
and other associated vegetation in the
surrounding community. Winter rainfall
in 2008 produced many seedlings of
Gierisch mallow, indicating that they
grow from seeds stored in the seed bank
(Hughes 2009, p. 13). Higher densities of
seedlings were located within known
locations in Arizona and Utah after
these winter rain events. Additionally,
young plants have been observed on two
reclaimed areas within an active
gypsum mine (Service 2008a, p. 1),
further indicating that seeds are stored
in the seed bank; however, we do not
know the long-term viability of these
plants due to the disruption of the
original soil composition. Furthermore,
Hughes (2011, p. 7) has documented a
decline in the numbers of plants in both
of the two reclaimed areas over the last
5 years.
We have no information on the
historical range of this species because
it is a newly discovered plant.
Currently, there are 18 known
populations of the Gierisch mallow
restricted to less than approximately
186 ha (460 ac) in Arizona and Utah.
The main populations in Arizona are
located south of the Black Knolls,
approximately 19.3 km (12 mi)
southwest of St. George, Utah, with the
southernmost population of this group
being on the edge of Black Rock Gulch
near Mokaac Mountain. There is another
population approximately 4.8
kilometers (km) (3 miles (mi)) north of
the Black Knolls, on Arizona State Land
Department (ASLD) lands near the
Arizona/Utah State line. The Utah
population is located on BLM lands
within 3.2 km (2 mi) of the Arizona/
Utah State line, near the Arizona
population on ASLD land.
There are no other known populations
of the Gierisch mallow. We theorized
that, because gypsum outcrops
associated with the Harrisburg Member
are scattered throughout BLM lands in
northern Arizona and southern Utah,
additional populations may exist. Dr.
Atwood and Dr. Welsh conducted
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extensive surveys in these areas because
numerous other rare plant species are
associated with these landforms
(Atwood 2008, p. 1). One record of a
Gierisch mallow from the Grand
Canyon-Parashant National Monument
was presented to us (Fertig 2012, p. 3);
however, after careful scrutiny, Johnson
and Atwood (2012, p. 1) determined
that this record is actually Rusby’s
mallow and not Gierisch mallow.
Status and Population Estimates
Atwood (2008, p. 1), and later Hughes
(Service 2008a, p. 1), estimated the
population size of the Gierisch mallow
from four of the Arizona locations.
These populations are referred to as
‘‘Hills.’’ There are a total of 18
populations rangewide, with seventeen
populations on lands managed by the
BLM, and 1 on lands managed by the
ASLD. Seventeen populations occur in
Arizona, and one occurs in Utah.
Atwood and Hughes’ population
estimates were simple visual estimates
and have only been conducted for four
of the 17 populations. These estimates
are presented in Table 1 for the areas
49897
surveyed in Arizona. Hughes (2012, pp.
12–14) established belt transects on four
of the ‘‘Hills’’ (Hills 1, 2, 4, and 5) and
began to count the number of
individuals. There is a population on
Hill 3, but there are no estimates for it.
Data in Table 1 are from files in BLM’s
St. George Field Office and the Service’s
Arizona Ecological Services Field
Office. The actual transect counts
appear in Table 1 in bold, in
parentheses. Surveys estimate total
population size to be between 7,000 and
12,000 individuals in Arizona.
TABLE 1—POPULATION NUMBERS FOR GIERISCH MALLOW FROM FOUR LOCATIONS IN ARIZONA
Site
Numbers 2001
Numbers 2003
Numbers 2007
Numbers 2008
Numbers 2009
Numbers 2010
Numbers 2011
Hill 1 (BLM) ............
Hill 2 (BLM) ............
Hill 4 (BLM) ............
150+ (100) ......
150+ (100) ......
No data ...........
(58) .................
(15) .................
(176) ...............
No data ...........
50 (37) ............
(65) .................
Hill 5 (ASLD) ..........
No data ...........
50 (30) ............
40 (31) ............
5,000–9,000
(180).
2,000–3,000
(115).
No data ...........
No data ...........
300 (155) ........
40 (23) ............
No estimate
(108).
No data ...........
200 (85) ..........
No data ...........
No estimate
(170).
No data ...........
*
*
No estimate
(136)
No data
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* These sites were visited in 2011, and Gierisch mallow plants were observed; however, no data were collected.
Total population size in Utah was
estimated to be approximately 200
individuals in 2005 (Franklin 2007, p.
1). In spring 2008 and 2009, Hughes
(2008a, p. 12; Hughes 2009, p. 15)
conducted more extensive surveys of
gypsiferous soils in Utah and estimated
the population to be between 5,000 and
8,000 individuals. The Service plant
ecologist and staff from the BLM’s
Arizona Strip Field Office visited all of
the known locations in February 2008
(Service 2008a, p. 1). Population
estimates were not made at this time
because the plants were just emerging
from winter dormancy, but there were
plants present at all of the known
locations visited.
Since surveys began, no new
populations have been found outside of
the known areas. In addition to the
information provided in Table 1,
Hughes (2008a, p. 12) reported counts
for transects on two rehabilitated sites
within the Western Mining and
Minerals, Inc., gypsum operation on and
near Hill 4, where 85 and 60 plants were
counted on the two transects in 2008.
These plants are reestablishing
themselves in the reclaimed areas from
the original seed bank. Hughes (2009, p.
14) counted 50 and 32 plants on these
sites in 2009. In 2011, Hughes (2012, p.
7) completed transect surveys on the
same reclaimed sites as he did in 2008
and 2009, and counted 67 plants on one
rehabilitated site and 1 plant on the
other rehabilitated site. We do not have
any information to indicate why there
was a substantial decrease in plant
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numbers at these reclaimed areas.
Because the Gierisch mallow it mostly
only found in gypsiferous soils, it is
possible that they are declining due to
disruption of the original soil
composition in these reclaimed soils.
Outside of the reclaimed areas, some
populations of the Gierisch mallow
appear to be fluctuating annually
according to data provided by Hughes
(2011, pp. 4–7). Some populations
appear to be decreasing, others have
shown slight increases, and some
populations have remained stable
(Hughes 2011, pp. 4–7).
Summary of Factors Affecting the
Species
Section 4 of the Act (16 U.S.C. 1533),
and its implementing regulations at 50
CFR part 424, set forth the procedures
for adding species to the Federal Lists
of Endangered and Threatened Wildlife
and Plants. Under section 4(a)(1) of the
Act, we may list a species based on 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; and (E)
other natural or manmade factors
affecting its continued existence. Listing
actions may be warranted based on any
of the above threat factors, singly or in
combination. Each of these factors is
discussed below.
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A. The Present or Threatened
Destruction, Modification, or
Curtailment of Its Habitat or Range
Because the Gierisch mallow has a
limited range and distribution,
including being found in a specific soil
composition (gypsum outcrops), it is
highly susceptible to habitat destruction
and modification. Specifically, habitat
destruction or modification resulting
from mining operations, recreational
activities, and wildfires associated with
the spread of nonnative grass species,
are threats to the Gierisch mallow.
Mining
Gypsum mining is an ongoing source
of habitat modification for the Gierisch
mallow in Arizona. Gypsum is used in
construction (including the
manufacturing of drywall), and for a
variety of agricultural purposes.
Gypsum deposits are found at various
depths within the Harrisburg Member.
Many of the most valuable gypsum
deposits are not at ground level. This
means that surface materials need to be
removed and stockpiled, while the
subsurface gypsum is mined. The
stockpiled surface material is then used
to reclaim the area after the gypsum has
been removed. Because all the topsoil is
temporarily removed, gypsum mining
temporarily removes the plant’s habitat
and any plants growing in the affected
area. Although the topsoil is replaced,
the original soil composition is altered;
therefore, the reclaimed soils do not
contain the original gypsum
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composition with which the plants are
associated.
There is an existing gypsum mining
operation (Black Rock Gypsum Mine) on
BLM land affecting the Hill 4
population, the largest population in
Arizona (Hughes 2009, p. 13). The
plants in the Hill 4 area are not
restricted to one hill, but are scattered
among several smaller hills that all
contain gypsum outcrops. One of the
larger deposits is currently being mined.
A large amount of soil has been
removed, but we cannot quantify how
much of the habitat this comprises at
this site, as we do not have access to
ASLD lands. Based on prior monitoring
before access was limited (Hughes 2008,
p. 13), there are other small hills within
the footprint of the mining claim that
support the Gierisch mallow; therefore,
we assume the Gierisch mallow
occupied the disturbed area. Western
Mining and Minerals, Inc., the mine
operator, has inquired about expanding
the current operation (Service 2008a, p.
1). The area they propose to expand into
currently supports the largest portion of
the Hill 4 population, estimated to be
between 5,000 and 9,000 plants (Hughes
2008, p. 14), which comprises almost
half of the entire population rangewide
and most of the population in Arizona.
The proposed expansion would remove
the entire population and its habitat on
Hill 4. An environmental assessment
(under the National Environmental
Policy Act 40, 42 U.S.C. 4321 et seq.) for
expansion of the quarrying activities
within the Black Rock Gypsum Mine
has been completed, and the Mining
Plan of Operation has been approved
(BLM 2008a). Because the demand for
gypsum has declined along with the
decrease in the housing market, mining
activity has not yet reached the
expansion area (Cox 2011a, pers.
comm.). Recent discussions with the
BLM indicate that the expansion could
happen as soon as 3 years from now or
may take up to 10 years, depending on
the housing market, but BLM believes
the expansion is very likely to happen
(Cox 2011a, pers. comm.).
There is another gypsum mine,
located near Hill 5, supporting another
large Arizona population
(approximately 2,000–3,000 plants).
This mine, operated by Georgia-Pacific,
is on ASLD lands and encompasses 178
ha (440 ac). Service biologists did not
receive permission to enter the site in
February 2008, but, through the site
boundary fence, did notice at least one
pile of spoils near the population,
indicating some recent surfacemodifying activity prior to the Service
biologists’ visit. The lease was first
issued in 2006, but Georgia-Pacific has
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not mined anything, due to the slowing
of the economy. The surface-modifying
activity observed in February 2008 was
likely a result of moving topsoil in
preparation to begin mining activities
(Dixon 2011, p. 1). Because the lease is
for 20 years, we expect that mining
operations will begin at some point
within the next 14 years, or when the
housing market improves. We presume
that habitat for the species would be
affected by the operation because the
technique for gypsum mining
necessarily involves removal of the
topsoil, eliminating, at least
temporarily, the species’ ability to
survive there. There are no known
protection measures for Gierisch mallow
or its habitat within the lease on State
trust lands.
In addition to the Georgia-Pacific
mine, there are several ASLD-issued
exploration permits in the area on ASLD
lands surrounding Hill 5. These are all
relatively new claims, and no significant
work has been done on them, yet some
drilling was completed, but no other
exploration or mining work has
occurred. With the depressed housing
market, the ASLD does not anticipate
any gypsum mining will occur until the
housing market improves (Dixon 2011,
p. 1).
Gypsum mining is a threat to this
species and its habitat. The mining
operation removes plants and habitat for
the duration of the mining activities,
and, post-mining, the reclaimed areas
may or may not be capable of
supporting the plants. A few Gierisch
mallows were seen on reclaimed areas
near Hill 4, but no information on the
density of plants before the disturbance
exists. Plants continue to be observed in
two reclaimed areas near Hill 4;
however, the numbers are relatively low
(Hughes 2012, pp. 6–7). Furthermore, it
is unknown if restored areas will
support the plants sufficiently to restore
populations to pre-mining levels;
restoration efforts with this species are
currently being planned within the
Black Rock Mine to assess the feasibility
of seeding reclaimed areas with Gierisch
mallow (Service 2008b, p. 1).
We conclude that the ongoing and
future gypsum mining activities, as
authorized by the BLM and the ASLD,
are a significant threat to this species.
Although there has been no mining
activity on ASLD lands since 2007, the
Service believes this inactivity is
temporary and that mining will resume
when the housing market improves in
the future. There will be a significant
reduction in the number of individuals
of the species when the Western Mining
and Minerals Inc., operation (Black
Rock Gypsum Mine) expands, and when
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mining activities resume at the GeorgiaPacific mine on lands managed by the
ASLD. Although Hills 4 and 5 comprise
only 2 of the 18 populations, over half
of all the known Gierisch mallow plants
are in these two areas. That would leave
the other Arizona locations and the one
Utah population, and those areas
support fewer plants. The loss of
suitable habitat at Hills 4 and 5 has
resulted in the loss of more than 50
percent of the existing populations. The
Service believes this would result in a
compromise to the long-term viability of
the species, due to reduced reproductive
potential and fragmentation. The
limited distribution of this species, the
small number of populations, the
limited amount of habitat, and the
species’ occurrence only in areas that
support high-quality gypsum deposits
lead us to conclude that mining is a
significant threat to the species.
Grazing
In general, grazing practices can
change vegetation composition and
abundance, cause soil erosion and
compaction, reduce water infiltration
rates, and increase runoff (Klemmedson
1956, p. 137; Ellison 1960, p. 24; Arndt
and Rose 1966, p. 170; Gifford and
Hawkins 1978, p. 305; Robinson and
Bolen 1989, p. 186; Waser and Price
1981, p. 407; Holechek et al. 1998, pp.
191–195, 216; and Loftin et al. 2000, pp.
57–58), leaving less water available for
plant production (Dadkah and Gifford
1980, p. 979). Fleischner (1994, pp.
630–631) summarized the ecological
impacts of grazing in three categories:
(1) Alteration of species composition of
communities, including decreases in
density and biomass of individual
species, reduction of species richness,
and changing community organization;
(2) disruption of ecosystem functioning,
including interference in nutrient
cycling and ecological succession; and
(3) alteration of ecosystem structure,
including changing vegetation
stratification, contributing to soil
erosion, and decreasing availability of
water to biotic communities.
Grazing occurs in most populations of
the Gierisch mallow in Arizona and
Utah on both BLM and ASLD lands.
Grazing is excluded from both the Black
Rock Gypsum Mine on BLM land and
the Georgia-Pacific Mine on ASLD land.
Gierisch mallow populations occur on
three BLM grazing allotments in
Arizona and one allotment in Utah. In
Arizona, the Black Rock, LambingStarvation, and Purgatory allotments all
contain populations of Gierisch mallow.
The Black Rock Allotment encompasses
15,250 ha (37,685 ac) that are grazed
year-round, but this allotment is on a
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deferred grazing system, which means
that pasture use is rotated so that each
pasture receives a set amount of rest
(non-use) every year. As previously
stated, there are an additional 1,152 ha
(2,846 ac) in this allotment that are
unavailable for grazing because of the
Black Rock Gypsum Mine. Gierisch
mallow occurs in both the ‘‘Lizard 1’’
and ‘‘Lizard 2’’ pastures within this
allotment, and both pastures are
typically used in the spring to allow the
livestock to utilize cheatgrass when it is
still green. These two pastures are
typically rotated, that is used every
other year so that one pasture receives
a full year of rest.
The Lambing-Starvation Allotment
encompasses 5,446 ha (13,457 ac) that
are grazed from November 16 through
May 15 every season and is also on a
deferred system. Gierisch mallow occurs
in two of the three pastures in this
allotment, the North Freeway and South
Freeway pastures. These two pastures
are also used in the spring, as the third
pasture is along the Virgin River and
contains critical habitat for the
endangered southwestern willow
flycatcher (Empidonax traillii extimus).
Because the third pasture contains
critical habitat for the southwestern
willow flycatcher, its use is restricted
seasonally, causing livestock to spend
more time in the two pastures
containing Gierisch mallow, including
during the spring growing season for the
Gierisch mallow. The LambingStarvation Allotment also contains
ASLD lands with a grazing lease;
however, the BLM oversees the
management of this allotment. The
Purgatory Allotment encompasses 1,985
ha (4,905 ac) in a single pasture that is
grazed from December 1 through May 31
every season. Only a small portion of a
Gierisch mallow population occurs
within this allotment. Information from
the BLM indicates that many of the
Gierisch mallow populations occur on
hillsides or steep slopes, and livestock
do not typically go up to these areas
looking for forage unless it is a dry year
(Roaque 2012a, p. 2). All three
allotments contain significant amounts
of nonnative, invasive annual grasses,
including cheatgrass and red brome,
although red brome appears to be more
prevalent. According to observations by
BLM range personnel, both cheatgrass
and red brome tend to not grow well in
gypsum outcrops in normal (dry)
rainfall years; however, they can be
abundant in Gierisch mallow habitat
during wet years. This was observed
after the fall 2010 and winter 2011 rains
(Roaque 2102b, p. 1).
In Utah, grazing occurs in the one
allotment that contains Gierisch mallow
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and its habitat. The Curly Hollow
Allotment is comprised of
approximately 9,105 ha (22,500 ac) of
BLM land and 2,226 ha (5,500 ac) of
Utah State trust land. This is a fourpasture allotment that is managed for
intensive grazing and a rest rotation
system similar to those described above.
Gierisch mallow only occurs in the
River Pasture, which is usually grazed
from November 1 through February 28
of each season. Recent wildfires had
burned much of the upper three
pastures; therefore, the River Pasture
has been grazed beyond February 28 for
several years to alleviate pressure on the
three upper pastures while the
vegetation recovered from the wildfire
in the absence of livestock grazing
(Douglas 2012a, p. 1). The three upper
pastures are now considered
rehabilitated, and grazing in the River
Pasture should resume with its normal
season of use from November 1 through
February 28. The general condition of
the range in the River Pasture is fair to
good (moderate cheatgrass spread);
however, portions near Sun River, and
the Astragalus holmgreniorum
(Holmgren milkvetch) (an endangered
plant) habitat, have been disturbed in
the past, resulting in a more significant
spread of cheatgrass and Malcolmia
africana (African mustard). Livestock
utilization on Gierisch mallow has not
been monitored by BLM’s St. George
Field Office, but conditions are
expected to be similar to livestock
utilization described above in Arizona
(Douglas 2012a, p. 1).
In addition to consumption, livestock
are known to trample plants. As noted,
livestock do not typically go up into
Gierisch mallow habitat on the BLM
allotments in Arizona and Utah due to
the steeper hillsides and slopes that this
plant is known to inhabit (Roaque
2012a, p. 2; Douglas 2012a, p. 1). Given
the grazing management described
above and the observations of how
infrequently livestock are in Gierisch
mallow habitat, trampling of plants does
not likely significantly impact the
overall viability of these populations.
Habitat degradation in the Mojave
Desert, through loss of microbiotic soil
crusts (soils containing algae, lichen,
fungi, etc.) due to livestock grazing, is
a great concern (Floyd et al. 2003, p.
1704). Grazing can disturb soil crusts
and other fundamental physical factors
in landscapes. For example,
climatologists and ecologists have
attributed increasing soil surface
temperatures and surface reflectivity in
the Sonoran Desert to grazing-related
land degradation (Balling et al. 1998 in
Floyd et al. 2003, p. 1704). Biological
soil crusts provide fixed carbon on
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sparsely vegetated soils. Carbon
contributed by these organisms helps
keep plant interspaces fertile and aids in
supporting other microbial populations
(Beymer and Klopatek 1991 in Floyd et
al. 2003, p. 1704). In desert shrub and
grassland communities that support few
nitrogen-fixing plants, biotic crusts can
be the dominant source of nitrogen
(Rychert et al. 1978 and others in Floyd
et al. 2003, p. 1704). Additionally, soil
crusts stabilize soils, help to retain
moisture, and provide seed-germination
sites. Soil crusts are effective in
capturing wind-borne dust deposits, and
have been documented contributing to a
2- to 13-fold increase in nutrients in
southeastern Utah (Reynolds et al. 2001
in Floyd et al. 2003, p. 1704). The
presence of soil crusts generally
increases the amount and depth of
rainfall infiltration (Loope and Gifford
1972 and others in Floyd et al. 2003, p.
1704).
In addition to loss of soil crusts,
grazing often leads to soil compaction,
which reduces water infiltration and
can lead to elevated soil temperatures
(Fleischner 1994, p. 634; Floyd et al.
2003, p. 1704). All of these soil
disturbances can increase erosion by
both wind and water (Neff et al. 2005,
p. 87). Because Gierisch mallow only
occurs in gypsum soil outcrops, this loss
of soil crust, increased soil compaction,
and potential increase in erosion may
lead to reduced fitness of individual
plants as nutrients decrease when
livestock enter and concentrate in these
areas during dry years. Additionally, it
is possible that individual plants,
especially seedlings, are not able to take
root in any unstable soils that result
from loss of soil crusts due to livestock
grazing. Increased erosion and
decreased water infiltration from loss of
soil crusts can lead to depletion of
gypsum and other specific soil features
that the Gierisch mallow requires. These
effects may be significant to Gierisch
mallow populations because grazing
occurs at some level throughout all
populations. Reduced fitness of
individual plants may lead to reduced
overall reproduction, which may lead to
decreases in the overall population.
Grazing can also lead to changes in
vegetation structure, including the
proliferation of nonnative, invasive
species such as cheatgrass and red
brome. Livestock have been implicated
in the spread of weeds (Brooks 2009, p.
105), and both abundance and diversity
of native plants and animals is lower in
grazed areas as compared to ungrazed
habitat in the Mojave Desert (Brooks
2000, p. 105). We do not know the
current density of these two nonnative
grass species within the Gierisch
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mallow populations; however, we do
know that both of these nonnative
species are prevalent throughout the
Mojave Desert in northwest Arizona and
southwest Utah, including throughout
all three allotments in Arizona and the
allotment in Utah (Roaque 2012a, pp. 1–
2; Douglas 2012, p. 1). While cheatgrass
and red brome appear not to favor
gypsiferous soils under normal (dry)
conditions, they can be abundant in
Gierisch mallow habitat during wet
years, as was recently observed (Roaque
2102b, p. 1). Red brome has also been
documented in similar gypsiferous soils
near Gierisch mallow populations after
wet years (Roth 2012, entire). The
proliferation of cheatgrass and red
brome can lead to competition with
Gierisch mallow for both water and
nutrients, which can lead to decreased
reproduction and fitness in individual
plants.
In addition to decreased reproduction
and fitness in established plants, the
spread of these two species can also
make the habitat less suitable for
establishment of new plants. If
cheatgrass and red brome reach high
densities throughout all of the Gierisch
mallow populations, this can lead to a
significant reduction in the proper
functioning of the habitat, which in turn
would lead to a reduction in fitness and
reproduction population-wide and an
overall population decline. Given the
limited distribution of Gierisch mallow
and the known abundance of cheatgrass
and red brome in its habitat, continued
proliferation of these two species into
Gierisch mallow habitat is likely to have
significant effects to the species and its
habitat. The number of populations may
be reduced and their current limited
distribution may become even more
limited. Additionally, the overall
resiliency of the species may be
significantly reduced, especially if the
spread of these nonnative grasses leads
to other stochastic events, such as
wildfire. Although grazing can help
promote the spread of nonnative weeds
such as cheatgrass and red brome, and
their spread is a threat to the Gierisch
mallow and its habitat, we do not know
how much livestock contribute to their
spread. The threat of wildfire resulting
from the spread of nonnative species
will be discussed in more detail in
‘‘Nonnative, Invasive Species’’ below.
In summary, livestock grazing can
have many effects on the plant and its
habitat, and on desert ecosystems in
general, particularly on soils. However,
livestock do not typically spend much
time in Gierisch mallow habitat, due to
the steeper hillsides and slopes that this
plant inhabits, unless drought
conditions cause livestock to search for
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forage on the steeper hillsides and
slopes. When livestock do enter
Gierisch mallow habitat, some limited
soil disturbance may occur, and
individual plants may be affected,
although we do not anticipate
population-level effects to the Gierisch
mallow. Livestock have been implicated
as a mechanism for the spread of
cheatgrass and red brome. Although we
do not know the extent to which
livestock spread these two nonnative
grasses, the spread of these grasses does
pose a threat to the Gierisch mallow.
Because of these potential effects from
livestock grazing, we anticipate grazing
to be a moderate threat to the species,
especially during drought years.
Recreation Activities
Mining operations in Utah do not
pose a threat to Gierisch mallow
population at this time, but there is
evidence of off-road vehicle (OHV)
activity in the area. Several of the
smaller hills were criss-crossed with
OHV tracks (Service 2008, p. 1), and
these areas are closed to OHV use off of
designated roads and trails (Douglas
2012b, p. 1); therefore, this is
considered unauthorized OHV use.
Washington County is projected to be
one of the fastest growing counties in
Utah, with a growth rate of 3.9 percent.
The population of St. George has grown
from 64,201 (2005) to 88,001 (2010), and
is expected to increase to 136,376 by
2020 (St. George Area Chamber 2010,
pp. 2–3). The surrounding open spaces
around St. George are popular for OHV
use because of the relatively flat terrain
and ease of access.
Vollmer et al. (1976, p. 121)
demonstrated that shrubs exposed to
repeated driving (continued use of the
same tracks) were severely damaged.
Both live and dead stems were broken
and pressed to the ground. Stems still
standing exhibited broken twigs or
shoots and leaves were dislodged.
Damage to about 30 percent of all shrubs
examined in tire tracks were scored at
100 percent damage. Vollmer et al.
(1976, p. 121) go on to state that
approximately 54 percent of the shrubs
in the tracks sustained 90 percent or
greater damage. The numbers of annual
shrubs growing in regularly driven ruts
were lower than in other areas (Vollmer
et al. 1976, p. 124). These data indicate
that individual Gierisch mallow plants
may be susceptible to the effects of OHV
use in this area. Plants may be damaged
to the point that they are no longer
viable and able to produce seed.
Seedlings may not be able to reach
maturity and reproduce if they are
crushed to point of significant damage.
As unauthorized OHV use increases in
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these areas and associated unauthorized
trails proliferate, this population may
experience an overall reduction in
fitness for the Gierisch mallow.
In addition to the direct effects to
vegetation, unauthorized OHV use can
have the same indirect effects that were
previously described by livestock
grazing, including soil compaction, loss
of soil crusts, erosion, and the
promotion and spread of nonnative
invasive species. Refer to the livestock
grazing discussion above for a complete
description of the effects to soil
composition and how those effects
impact Gierisch mallow and its habitat.
In summary, we consider continued
unauthorized OHV use (off of
designated roads) to be a potential threat
to this species and its habitat in Utah.
Continued unauthorized OHV use can
have a significant effect on the longterm viability of the Utah population of
the Gierisch mallow because habitat
degradation can be severe enough to
prevent reestablishment of new plants,
as well as removing mature,
reproducing plants from the population.
As stated above, Hughes (2009, p. 14)
estimated this population to be between
5,000 and 8,000 individuals in 2009.
While this is only one of 18 known
populations, this is the second largest
population of the plant and this
population includes almost half of the
total population, rangewide. This
population is important to the long-term
viability of the species. Given that this
large population only encompasses 1.01
ha (2.5 ac) and is easily accessible, these
activities may lead to enough Gierisch
mallow plants being crushed to reduce
the overall fitness of the population.
Therefore, we conclude that this activity
is a moderate threat to the species.
Other Human Effects
The same areas in Utah that are
subjected to unauthorized OHV use are
also used for target shooting and trash
dumping. Evidence of both of these
activities was present in Utah during the
February 2008 visit. There was one large
appliance dumped near the population,
obviously used for target practice
(Service 2008a, p. 1). People engaging in
target shooting near the population
degrade habitat by trampling the soil
and plants, and by driving vehicles on
the habitat to access areas for target
shooting. The unauthorized use of BLM
lands for these activities can contribute
to the degradation of habitat for the
Gierisch mallow by causing the same
direct and indirect effects described
above for OHV use. It is also possible
that trash dumping can lead to soil
contamination, which would most
likely not be beneficial to the species.
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The full extent of damage to soils may
not be evident until years or even
decades after the original disturbance
(Vollmer et al. 1976, p. 115). We did not
observe these activities near the Arizona
populations. Similar to the effects of
unauthorized OHV use, we consider
illegal trash dumping and impacts
associated with target shooting to be
moderate threats to this species and its
habitat in Utah.
Nonnative, Invasive Species
The spread of nonnative, invasive
species is considered the second largest
threat to imperiled plants in the United
States (Wilcove et al. 1998, p. 608).
Invasive plants—specifically exotic
annuals—negatively affect native
vegetation, including rare plants. One of
the most substantial effects is the
change in vegetation fuel properties
that, in turn, alter fire frequency,
intensity, extent, type, and seasonality
(Menakis et al. 2003, pp. 282–283;
Brooks et al. 2004, p. 677; McKenzie et
al. 2004, p. 898). Shortened fire return
intervals make it difficult for native
plants to reestablish or compete with
invasive plants (D’Antonio and Vitousek
1992, p. 73).
Invasive plants can exclude native
plants and alter pollinator behaviors
(D’Antonio and Vitousek 1992, pp. 74–
75; DiTomaso 2000, p. 257; Mooney and
Cleland 2001, p. 5449; Levine et
al.2003, p. 776; Traveset and
Richardson 2006, pp. 211–213). For
example, cheatgrass and red brome
outcompete native species for soil
nutrients and water (Melgoza et al.
1990, pp. 9–10; Aguirre and Johnson
1991, pp. 352–353; Brooks 2000, p. 92),
as well as modify the activity of
pollinators by producing different
nectar from native species (Levine et al.
2003, p. 776) or introducing nonnative
pollinators (Traveset and Richardson
2006, pp. 208–209). Introduction of
nonnative pollinators or production of
different nectar can lead to disruption of
normal pollinator interactions for the
Gierisch mallow.
Cheatgrass and red brome are
particularly problematic nonnative,
invasive annual grasses in the
intermountain west. If already present
in the vegetative community, cheatgrass
and red brome increase in abundance
after a wildfire, increasing the chance
for more frequent fires (D’Antonio and
Vitousek 1992, pp. 74–75; Brooks 2000,
p. 92). In addition, cheatgrass invades
areas in response to surface
disturbances (Hobbs 1989, pp. 389, 393,
395, 398; Rejmanek 1989, pp. 381–383;
Hobbs and Huenneke 1992, pp. 324–
325, 329, 330; Evans et al. 2001, p.
1308). Cheatgrass and red brome are
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likely to increase due to climate change
(see ‘‘Climate Change and Drought’’
discussion, below, under Factor E)
because invasive annuals increase
biomass and seed production at elevated
levels of carbon dioxide (Mayeux et al.
1994, p. 98; Smith et al. 2000, pp. 80–
81; Ziska et al. 2005, p. 1328).
Although cheatgrass and red brome
both occur in close proximity to
Gierisch mallow habitat, red brome is
more prevalent (Roaque 2012b, p. 1). As
previously described above, both
cheatgrass and red brome tend to not
grow well in gypsum outcrops in
normal (dry) rainfall years; however,
they can be abundant in the Gierisch
mallow habitat during wet years. Red
brome has also been documented in
similar gypsiferous soils near the
Gierisch mallow populations after wet
years (Roth 2012, entire). As we stated
above, we do not anticipate a high
degree of surface disturbances in the
Gierisch mallow habitats in the near
future from livestock grazing except
during drought years; however,
increased mining in Arizona and
unauthorized OHV use, target shooting,
and trash dumping in the Utah
population of the Gierisch mallow may
lead to significant amounts of surface
disturbance, providing conditions that
allow red brome to expand into and
increase in density within Gierisch
mallow habitat.
Invasions of annual, nonnative
species, such as cheatgrass, are well
documented to contribute to increased
fire frequencies (Brooks and Pyke 2002,
p. 5; Grace et al. 2002, p. 43; Brooks et
al 2003, pp. 4, 13, 15). The disturbance
caused by increased fire frequencies
creates favorable conditions for
increased invasion by cheatgrass. The
end result is a downward spiral where
an increase in invasive species results in
more fires, more fires create more
disturbances, and more disturbances
lead to increased densities of invasive
species. The risk of fire is expected to
increase from 46 to 100 percent when
the cover of cheatgrass increases from
12 to 45 percent or more (Link et al.
2006, p. 116). The invasion of red
brome, another nonnative grass, into the
Mojave Desert of the intermountain west
poses similar threats to fire regimes,
native plants, and other federally
protected species (Brooks et al. 2004,
pp. 677–678). Brooks (1999, p. 16) also
found that high interspace biomass of
red brome and cheatgrass resulted in
greater fire danger in the Mojave Desert.
Brooks (1999, p. 18) goes on to state that
the ecological effects of cheatgrass and
red brome-driven fires are significant
because of their intensity and
consumption of perennial shrubs.
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In the absence of cheatgrass and red
brome, the Gierisch mallow grows in
sparsely vegetated communities
unlikely to carry fires (see Biology,
Habitat, and the Current Range section).
Thus, this species is unlikely to be
adapted to survive high frequency fires.
As described in the Biology, Habitat,
and the Current Range section, the total
range of this species covers
approximately 186 ha (460 ac), and each
of the 18 populations occupies a
relatively small area, ranging between
0.003 ha (0.01 ac) and 38.12 ha (94.36
ac). A range fire could easily impact or
eliminate one or all populations and
degrade Gierisch mallow habitat to the
point that it will no longer be suitable
for the plant. The loss of one population
and associated suitable habitat would be
a significant loss to the species.
Therefore, the potential expansion of
invasive species and associated increase
in fire frequency and intensity is a
significant threat to the species,
especially when considering the limited
distribution of the species and the high
potential of the Gierisch mallow
population extinctions.
In summary, we know that invasive
species can impact plant communities
by increasing fire frequencies,
outcompeting native species, and
altering pollinator behaviors. Although
invasive species do not occur in high
densities in Gierisch mallow habitat
during normal (dry) rainfall years,
nonnative, invasive species, especially
red brome, can be very abundant in wet
rainfall years. Given the ubiquitous
nature of cheatgrass and red brome in
the Intermountain West and their ability
to rapidly invade dryland ecosystems
(Mack 1981, p. 145; Mack and Pyke,
1983, p. 88; Thill et al. 1984, p. 10), we
expect these nonnative species to
increase in the future in response to
surface disturbances from increased
mining activities, recreation activities,
and global climate change (see ‘‘Climate
Change and Drought’’ below). An
increase in cheatgrass and red brome is
expected to increase the frequency of
fires in Gierisch mallow habitat, and the
species is unlikely to survive increased
wildfires due to its small population
sizes and the anticipated habitat
degradation. Therefore, we determine
that nonnative, invasive species and
associated wildfires constitute a
significant threat to habitat of the
Gierisch mallow.
Summary of Factor A
Based on our evaluation of the best
available scientific information, we
conclude that the present and future
destruction and modification of the
habitat for the Gierisch mallow is a
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significant threat. Destruction and
modification of habitat for the Gierisch
mallow are anticipated to result in a
significant decrease in both the range of
the species and the size of the
population of the species.
Mining activities impacted Gierisch
mallow habitat in the past and will
continue to be a threat in the future to
the species’ habitat throughout its range.
All of the populations and habitat are
located on BLM and ASLD lands, which
have an extensive history of, and recent
successful exploration activities for,
gypsum mining. Two of the eighteen
populations are located in the
immediate vicinity of gypsum mining,
including the Black Rock Gypsum Mine
which has an approved Mining Plan of
Operation to expand into the largest
Gierisch mallow population. Gypsum
mining is expected to continue and
expand in the near future (Cox 2011b,
p. 1; Dixon 2012, p. 1). Considering the
small area of occupied habitat
immediately adjacent to existing
gypsum mines, anticipated future
mining will result in the loss of habitat
for these populations in the future, and
these two populations comprise more
than 50 percent of the entire species’
distribution.
Although livestock do not typically
eat Gierisch mallow, livestock grazing
can affect Gierisch mallow habitat more
significantly during drought years, as
livestock move into the Gierisch mallow
habitat searching for forage.
Additionally, livestock have been
implicated in spreading nonnative,
invasive species such as red brome and
cheatgrass, although we do not know
the extent to which livestock contribute
to the spread of these two nonnative
grasses.
Red brome and cheatgrass are
documented to occur in all 18
populations of the Gierisch mallow,
although mostly after wet rain years.
The threat of fire caused by annual
nonnative species invasions is
exacerbated by mining activities,
livestock grazing, and recreation
activities. Therefore, we conclude that
Gierisch mallow and its habitat face
significant threats as a result of habitat
loss and modification.
B. Overutilization for Commercial,
Recreational, Scientific, or Educational
Purposes
The Gierisch mallow is not typically
a plant of horticultural interest;
however, we do have information
regarding possible seed collection from
wild plants on BLM and ASLD
department lands for commercial sale
(Roth 2011, p. 1). Collection of seeds
from both BLM and ASLD is prohibited,
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and only the BLM offers a special
permit to collect seeds of candidate
species. Each respective land
management agency referred the matter
to its law enforcement branches.
Because collection is restricted, and
collection permits are only issued for
scientific research or educational
purposes by the Arizona Department of
Agriculture (Austin 2012, p. 1), we do
not expect collection to be a regular
occurrence. See Factor D discussion,
below, for a complete description of
when permits are issued for collection
of the Gierisch mallow. We are not
aware of any other instances when the
Gierisch mallow has been collected
from the wild other than as a voucher
specimen (specimen collected for an
herbarium) (Atwood and Welsh 2002, p.
161). Therefore, we conclude that
overutilization for commercial,
recreational, scientific, or educational
purposes is not a threat to the Gierisch
mallow now, and we have no
information to indicate that it will
become a threat in the future.
plant is typically located and because
the herbivory that does occur is mostly
limited to drought years when the plant
is not overly abundant. Although
herbivory is likely to continue to some
degree, especially during drought years,
recruitment from the seed bank has been
documented in recent years, indicating
that herbivory by livestock is not likely
to diminish the overall fitness and
reproductive ability of the larger
Gierisch mallow populations. Smaller
populations of the Gierisch mallow are
likely to be more susceptible to the
effects of herbivory during drought
years.
We have no information that disease
is affecting the plants. Therefore, based
on the best available information, we
conclude that disease is not a threat to
the Gierisch mallow, and that predation
(herbivory, along with some related
trampling) is a moderate threat during
drought years.
C. Disease or Predation
The flowering stalks of the Gierisch
mallow are eaten by livestock. All of the
Gierisch mallow populations on BLM
lands are within grazing allotments.
Herbivory has been documented by a
BLM ecologist (Service 2008a, p. 1), and
Atwood (2008, p. 1). Hughes has found
that the mallow is eaten during drought
years, when other forage is reduced or
unavailable. The plant is also grazed
during non-drought times, but not as
heavily. The Gierisch mallow plants
located near water sources (stock tanks
and drinkers) are also heavily browsed
(Hughes 2008b, p. 1) because livestock
tend to congregate near sources of water.
When Atwood (2008, p. 1) was
surveying the populations to collect
fruit of the Gierisch mallow during
drought years, Atwood was unable to
locate any fruit because all of the
flowering stalks had been consumed by
livestock. The effect of sporadic grazing
of plants is unknown, but persistent
grazing can reduce the reproductive
output of the plants, potentially
reducing the size of the smaller
populations, especially during drought
years. As previously described under
Factor A, livestock do not typically
spend significant amounts of time in
Gierisch mallow habitat, due to the
hillsides and steep slopes that the
Gierisch mallow typically inhabits,
although livestock will enter into
Gierisch mallow habitat during drought
periods.
Herbivory from livestock is not a
significant threat, because of the
steepness of the terrain on which the
Under this factor, we examine
whether existing regulatory mechanisms
are inadequate to address or alleviate
the threats to the species discussed
under the other factors. Section
4(b)(1)(A) of the Act requires the Service
to take into account ‘‘those efforts, if
any, being made by any State or foreign
nation, or any political subdivision of a
State or foreign nation, to protect such
species * * *.’’ In relation to Factor D
under the Act, we interpret this
language to require the Service to
consider relevant Federal, State, and
tribal laws, plans, regulations, and other
such mechanisms that may minimize
any of the threats we describe in threat
analyses under the other four factors, or
otherwise enhance conservation of the
species. We give strongest weight to
statutes and their implementing
regulations and to management
direction that stems from those laws and
regulations. An example would be State
governmental actions enforced under a
State statute or constitution, or Federal
action under statute.
Having evaluated the significance of
the threat as mitigated by any such
conservation efforts, we analyze under
Factor D the extent to which existing
regulatory mechanisms are inadequate
to address the specific threats to the
species. Regulatory mechanisms, if they
exist, may reduce or eliminate the
impacts from one or more identified
threats. In this section, we review
existing State and Federal regulatory
mechanisms to determine whether they
effectively reduce or remove threats to
the Gierisch mallow.
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D. The Inadequacy of Existing
Regulatory Mechanisms
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State Regulations
Over 90 percent of the species’ known
habitat and over 50 percent of known
populations are located on BLM and
ASLD lands in Arizona mining claims.
There are no laws protecting the
Gierisch mallow’s habitat on State or
private lands in Arizona. This species is
currently protected by the Arizona
Native Plant Act (ANPA). Since it
became a candidate species in 2008,
Arizona protects the Gierisch mallow as
‘‘Highly Safeguarded.’’ Plants in the
‘‘Highly Safeguarded’’ category under
the ANPA include ‘‘plants resident to
this State and listed as endangered,
threatened, or category 1 in the Federal
endangered species act of 1973’’ (ANPA
1997, p. 4). The ANPA controls
collecting, and limited scientific
collection of ‘‘Highly Safeguarded’’
species is allowed for research and
educational purposes (Austin 2012, p.
1), but the ANPA provides no protection
for plant habitat. Private landowners are
required to obtain a salvage permit to
remove plants protected by the ANPA;
however, there are no known private
lands containing the Gierisch mallow.
Furthermore, seed collection on ASLD
lands is prohibited, as described above
under Factor B, although there are no
ASLD regulations protecting habitat for
the Gierisch mallow. While the ANPA
may be effectively protecting the species
from direct threats, it is not designed to
protect the species’ habitat.
In addition to the Black Rock Gypsum
Mine on BLM lands in Arizona,
discussed below, the Georgia-Pacific
Mine on ASLD Land is in close
proximity to a large Gierisch mallow
population. The ASLD has fairly strict
reclamation provisions and bonding
requirements when they approve a
Mining Plan of Operation; however, any
decision that the ASLD makes on
whether or not to lease land is based
strictly on the benefit of the State Trust.
The ASLD would not deny a mine, or
any other project, based on the presence
of an endangered or threatened species;
however, they can have stipulations
written into the ASLD lease or the
mining company’s reclamation plan that
would require them to make allowances
for federally listed species (Dixon 2012,
p. 1). With listed plants, these
stipulations can include seed collection
or transplanting plants from the
footprint of the mine; however, because
the Gierisch mallow is not currently
listed, the ASLD does not currently have
to include these stipulations in
reclamation plans. Because the ASLD
does not have to require mitigation
stipulations to protect the Gierisch
mallow or its habitat, we conclude that
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this regulatory mechanism is
insufficient to protect the Gierisch
mallow from threats to its habitat
associated with mining on ASLD lands.
Federal Regulations
Mining Activities on BLM Lands
We have previously identified habitat
loss associated with gypsum mining as
a potential threat to the species. On
BLM-managed lands, this mining occurs
pursuant to the Mining Law of 1872 (30
U.S.C. 21 et seq.), which was enacted to
promote exploration and development
of domestic mineral resources, as well
as the settlement of the western United
States. It permits U.S. Citizens and
businesses to freely prospect hardrock
(locatable) minerals and, if a valuable
deposit is found, file a claim giving
them the right to use the land for mining
activities and sell the minerals
extracted, without having to pay the
Federal government any holding fees or
royalties (GAO 1989, p. 2). Gypsum is
frequently mined as a locatable mineral,
and gypsum mining is, therefore, subject
to the Mining Law of 1872. The BLM
implements the Mining Law through
Federal regulations, 43 CFR part 3800.
The operators of mining claims on
BLM lands must reclaim disturbed areas
(Cox 2012, p. 1). The BLM’s regulations
also require the mitigation of mining
operations so that operations do not
cause unnecessary or undue degradation
of public lands. Unnecessary or undue
degradation is generally referred to as
‘‘harm to the environment that is either
unnecessary to a given project or
violates specified environmental
protection statutes’’ (USLegal, 2012, p.
1). Furthermore, it is unclear what
specific activities would constitute
unnecessary or undue degradation in
relation to the Gierisch mallow and its
habitat.
The Gierisch mallow is listed as a
BLM sensitive species in both Arizona
and Utah. Sensitive species designation
on BLM lands is afforded through the
Special Status Species Management
Policy Manual #6840 (BLM 2008B,
entire) which states that on BLMadministered lands, the BLM shall
manage Bureau sensitive species and
their habitats to minimize or eliminate
threats affecting the status of the
species, or to improve the condition of
the species habitat (BLM 2008B, pp. 37–
38).
The BLM’s regulations do not prevent
the Black Rock Gypsum Mine’s
expansion into Gierisch mallow habitat,
but the BLM could require mitigation
measures to prevent unnecessary or
undue degradation from mining
operations. For example, the BLM
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required seed collection of the Gierisch
mallow by the mine operators to aid in
reestablishing the species in reclaimed
areas of the Black Rock Gypsum Mine
in the recently approved expansion of
the Black Rock Gypsum Mine.
The BLM has required seed collection
as a result of these operations; however,
we do not know if enough seeds can be
collected to reestablish pre-mining
population numbers in reclaimed areas.
We are unsure of the ability to
reestablish healthy populations in
reclaimed areas because the number of
plants observed growing from the seed
bank in reclaimed soils has decreased
since they were first observed.
Furthermore, we do not know the longterm viability of these plants or any
plants grown from collected seeds.
Therefore, we find that the BLM Federal
regulatory measures are not adequate to
address the loss of habitat caused by
gypsum mining.
E. Other Natural or Manmade Factors
Affecting Its Continued Existence
Small Population Size
As previously described (see the
Biology, Habitat, and the Current Range
section), the entire range of the Gierisch
mallow is located in an area of less than
186 ha (460 ac) throughout Arizona and
Utah. Within this range, each of the 18
individual populations’ habitat areas is
very small, ranging from 0.003 ha (0.01
ac) to 38.12 ha (94.36 ac). The Gierisch
mallow can be dominant in small areas
of suitable habitat, containing thousands
of individuals. However, the small areas
of occupation and the narrow overall
range of the species make it highly
susceptible to stochastic events that may
lead to local extirpations.
Mining, or a single random event such
as a wildfire (see Factor A), could
extirpate an entire or substantial portion
of a population given the small area of
occupied habitat. Species with limited
ranges and restricted habitat
requirements also are more vulnerable
to the effects of global climate change
(see the ‘‘Climate Change and Drought’’
section below; IPCC 2002, p. 22; Jump
and Penuelas 2005, p. 1016; Maschinski
et al. 2006, p. 226; Krause 2010, p. 79).
Overall, we consider small population
size and restricted range intrinsic
vulnerabilities to the Gierisch mallow
that may not rise to the level of a threat
on its own. However, the small
population sizes and restricted range of
this species increase the risk of
extinction to the Gierisch mallow
populations in conjunction with the
effects of global climate change (see
below) and the potential for stochastic
extinction events such as mining and
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invasive species (Factor A). Therefore,
we consider the small, localized
population size to exacerbate the threats
of mining, invasive species, and climate
change to the species.
Climate Change and Drought
Our analyses under the Act include
consideration of ongoing and projected
changes in climate. The terms ‘‘climate’’
and ‘‘climate change’’ are defined by the
Intergovernmental Panel on Climate
Change (IPCC). ‘‘Climate’’ refers to the
mean and variability of different types
of weather conditions over time, with 30
years being a typical period for such
measurements, although shorter or
longer periods also may be used (IPCC
2007, p. 78). The term ‘‘climate change’’
thus refers to a change in the mean or
variability of one or more measures of
climate (e.g., temperature or
precipitation) that persists for an
extended period, typically decades or
longer, whether the change is due to
natural variability, human activity, or
both (IPCC 2007, p. 78). Various types
of changes in climate can have direct or
indirect effects on species. These effects
may be positive, neutral, or negative,
and they may change over time,
depending on the species and other
relevant considerations, such as the
effects of interactions of climate with
other variables (e.g., habitat
fragmentation) (IPCC 2007, pp. 8–14,
18–19). In our analyses, we use our
expert judgment to weigh relevant
information, including uncertainty, in
our consideration of various aspects of
climate change.
Annual mean precipitation levels are
expected to decrease in western North
America and especially the
southwestern States by mid-century
(IPCC 2007, p. 8; Seager et al. 2007, p.
1181). Throughout the Gierisch
mallow’s range, precipitation is
predicted to increase 10 to 15 percent in
the winter, decrease 5 to 15 percent in
spring and summer, and remain
unchanged in the fall under the highest
emissions scenario (Karl et al. 2009, p.
29). The levels of aridity of recent
drought conditions and perhaps those of
the 1950s drought years will become the
new climatology for the southwestern
United States (Seager et al. 2007, p.
1181). Much of the Southwest remains
in a 10-year drought, which is
considered the most severe western
drought of the last 110 years (Karl et al.
2009, p. 130). Although droughts occur
more frequently in areas with minimal
precipitation, even a slight reduction
from normal precipitation may lead to
severe reductions in plant production
(Herbel et al. 1972, p. 1084). Therefore,
the smallest change in environmental
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factors, especially precipitation, plays a
decisive role in plant survival in arid
regions (Herbel et al. 1972, p. 1084).
As discussed above, the Gierisch
mallow has a limited distribution, and
populations are localized and small. In
addition, these populations are
restricted to very specific soil types.
Global climate change exacerbates the
risk of extinction for species that are
already vulnerable due to low
population numbers and restricted
habitat requirements. Predicted changes
in climatic conditions include increases
in temperature, decreases in rainfall,
and increases in atmospheric carbon
dioxide in the American Southwest
(Walther et al. 2002, p. 389; IPCC 2007,
p. 48; Karl et al. 2009, p. 129). Although
we have no information on how the
Gierisch mallow will respond to effects
related to climate change, persistent or
prolonged drought conditions are likely
to reduce the frequency and duration of
flowering and germination events, lower
the recruitment of individual plants,
compromise the viability of
populations, and impact pollinator
availability as pollinators have been
documented to become locally extinct
during periods of drought (Tilman and
El Haddi 1992, p. 263; Harrison 2001, p.
64). The smallest change in
environmental factors, especially
precipitation, plays a decisive role in
plant survival in arid regions (Herbel et
al. 1972, p. 1084).
Drought conditions led to a noticeable
decline in survival, vigor, and
reproductive output of other rare and
endangered plants in the Southwest
during the drought years of 2001
through 2004 (Anderton 2002, p. 1; Van
Buren and Harper 2002, p. 3; Van Buren
and Harper 2004, entire; Hughes 2005,
entire; Clark and Clark 2007, p. 6; Roth
2008a, entire; Roth 2008b, pp. 3–4).
Similar responses are anticipated to
adversely affect the long-term
persistence of the Gierisch mallow.
Periods of prolonged drought, especially
with decreased winter rains essential to
the survival and persistence of the
Gierisch mallow, are likely to decrease
the ability of this plant to produce
viable seeds. Additionally, prolonged
drought will likely diminish the ability
of seeds currently in the seed bank to
produce viable plants and for seedlings
to survive to maturity.
Climate change is expected to
increase levels of carbon dioxide
(Walther et al. 2002, p. 389; IPCC 2007,
p. 48; Karl et al. 2009, p. 129). Elevated
levels of carbon dioxide lead to
increased invasive annual plant
biomass, invasive seed production, and
pest outbreaks (Smith et al. 2000, pp.
80–81; IPCC 2002, pp. 18, 32; Ziska et
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al. 2005, p. 1328) and will put
additional stressors on rare plants
already suffering from the effects of
elevated temperatures and drought. This
is important to note with regards to the
Gierisch mallow because increases in
nonnative, invasive plants, including
increased seed production, are
anticipated to increase both the
frequency and intensity of wildfires as
described above in ‘‘Nonnative, Invasive
Species.’’ Additionally, these additional
stressors associated with increased
carbon dioxide are likely to increase the
competition for resources between the
Gierisch mallow and nonnative,
invasive plant species.
The actual extent to which climate
change itself will impact the Gierisch
mallow is unclear, mostly because we
do not have long-term demographic
information that would allow us to
predict the species’ responses to
changes in environmental conditions,
including prolonged drought. Any
predictions at this point on how climate
change would affect this species would
be speculative. However, as previously
described, mining and recreation
activities are threats (see ‘‘Mining’’ and
‘‘Recreation Activities’’ sections above),
which will likely result in the loss of
large numbers of individuals and maybe
even entire populations. Increased
surface disturbances associated with
mining and recreation activities also
will likely increase the extent and
densities of nonnative invasive species
and with it the frequencies of fires (see
‘‘Nonnative, Invasive Species’’ section
above). Given the cumulative effects of
the potential population reduction and
habitat loss (of already small
populations) associated with mining,
recreation, invasive species, and fire, we
are concerned about the impacts of
future climate change to the Gierisch
mallow.
In summary, the future effects of
global climate change and drought on
the Gierisch mallow are unclear.
However, because of the threats of
mining, grazing during drought years,
recreation, and nonnative species, the
cumulative effects of climate change
and drought may be of concern for this
species in the future. At this time, we
believe that the state of knowledge
concerning the localized effects of
climate change and drought is too
speculative to determine whether
climate change and drought are a threat
to these species in the future. However,
we will continue to assess the potential
threats of climate change and drought as
better scientific information becomes
available.
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Summary of Factor E
We assessed the potential risks of
small population size to the Gierisch
mallow. The Gierisch mallow has a
highly restricted distribution and exists
in 18 populations scattered over an area
that covers approximately 460 ac (186
ha). Individual populations occupy very
small areas with large densities of
plants. We conclude that stochastic
events could impact a significant
portion of a population. Small
populations that are restricted by habitat
requirements also are more vulnerable
to the effects of climate change, such as
prolonged droughts and increased fire
frequencies. Although small population
size and climate change make the
species intrinsically more vulnerable,
we are uncertain whether they would
rise to the level of threat by themselves.
However, when combined with the
threats listed under Factor A (mining
operations; livestock grazing; recreation
activities; and nonnative, invasive
species), and the lack of existing
regulatory mechanisms to alleviate
those threats, the small population size
and restricted range of the Gierisch
mallow are likely to significantly
increase the level of the abovementioned threats.
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Proposed Determination
We have carefully assessed the best
scientific and commercial information
available regarding the past, present,
and future threats to the Gierisch
mallow. We find that the species is in
danger of extinction due to the current
and ongoing modification and
destruction of its habitat and range
(Factor A) from the ongoing and future
gypsum mining operations, livestock
grazing, recreation activities, and
nonnative, invasive species. The most
significant factor threatening the
Gierisch mallow is the ongoing and
future gypsum mining that is likely to
remove more than 50 percent of the total
population of the Gierisch mallow. We
did not find any significant threats to
the species under Factor B. We found
that predation (herbivory) during
drought years to be a moderate threat
(Factor C). We also found that existing
regulatory mechanisms that could
provide protection to the Gierisch
mallow through mining operations
management by the BLM and ASLD are
inadequate to protect the species (Factor
D) from existing and future threats.
Finally, the small population size and
restricted range of this species also puts
it at a heightened risk of extinction
(Factor E), due to the significant threats
described above in Factors A, C, and D.
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The threats acting upon the
populations of Gierisch mallow are
intensified because of the species’ small
population size and limited range,
resulting in a high likelihood of
extinction for this species. The Gierisch
mallow is a narrow endemic species
with a very restricted range; the small
areas of occupied habitat combined with
the species’ strong association with
gypsum soils makes the species highly
vulnerable to habitat destruction or
modification through mining-related
and recreation activities as well as
livestock grazing during drought and
random extinction events, including
invasive species (and the inherent risk
of increased fires) and the potential
future effects of global climate change
(Factor A). Furthermore, two of the
largest populations of the Gierisch
mallow and its habitat will be
completely removed by mining
operations. Both of the mines have
approved Mining Plans of Operations
and permits from the respective land
management agencies (BLM and ASLD);
thus mining can occur at any time. Even
though these mining operations are not
currently active, when they begin
operation there will be no requirement
for notification of land-disturbing
activities that would impact or
completely remove these populations.
As previously stated, operation and
expansion of these two mines is
anticipated to extirpate more than 50
percent of known Gierisch mallow
plants, which are located in two
populations in Arizona. The existing
regulatory mechanisms are not adequate
to protect the Gierisch mallow from the
primary threat of mining, particularly
because the BLM has approved mining
operations with mitigation that we
consider ineffective at reducing threats.
Furthermore, the ASLD does not
consider the presence of a listed species
when approving a Mining Plan of
Operation. The ASLD has the ability to
require mitigation for the presence of a
federally listed species; however, there
is no current requirement because the
Gierisch mallow is not federally listed.
We consider this regulatory mechanism
to be ineffective as well. The
inadequacy of regulatory mechanisms
(Factor D), combined with the expected
turnaround of the housing market
(gypsum is an important component of
sheet rock for housing construction),
poses a serious threat to the continued
existence of the Gierisch mallow. The
small, reduced range (Factor E) of the
Gierisch mallow also puts it at a
heightened risk of extinction.
The elevated risk of extinction of the
Gierisch mallow is a result of the
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cumulative stressors on the species and
its habitat. For example, gypsum mining
is anticipated to extirpate more than
half of the known population of the
Gierisch mallow, especially since the
existing regulations cannot sufficiently
mitigate the effects of gypsum mining in
Gierisch mallow habitat. Livestock
grazing throughout the range of the
Gierisch mallow may affect the
population viability of the remaining
populations if periods of drought
continue and livestock continue to
consume the Gierisch mallow, including
seedlings, during drought periods.
Additionally, the risk of increased
wildfire frequency and intensity
resulting from increased nonnative,
invasive species has the potential to
extirpate several populations and,
possibly, contribute to the extinction of
the species. Climate change is
anticipated to increase the drought
periods and contribute to the spread of
nonnative, invasive species as well. All
of these factors combined heighten the
risk of extinction and lead to our finding
that the Gierisch mallow is in danger of
extinction and warrants listing as an
endangered species.
The Act defines an endangered
species as any species that is ‘‘in danger
of extinction throughout all or a
significant portion of its range’’ and a
threatened species as any species ‘‘that
is likely to become endangered
throughout all or a significant portion of
its range within the foreseeable future.’’
The threats will not start having serious
impact to the species in the future,
which would be the case with a
threatened species, but have already
commenced, have been negatively
impacting the species for some time,
and will continue to do so into the
foreseeable future. We find that the
Gierisch mallow is presently in danger
of extinction throughout its entire range,
based on the immediacy, severity, and
scope of the threats described above.
Therefore, on the basis of the best
available scientific and commercial
information, we propose listing the
Gierisch mallow as endangered in
accordance with sections 3(6) and
4(a)(1) of the Act.
Under the Act and our implementing
regulations, a species may warrant
listing if it is endangered or threatened
throughout all or a significant portion of
its range. The Gierisch mallow proposed
for listing in this rule is highly restricted
in its range and the threats occur
throughout its range. Therefore, we
assessed the status of the species
throughout its entire range. The threats
to the survival of the species occur
throughout the species’ range and are
not restricted to any particular
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significant portion of that range.
Accordingly, our assessment and
proposed determination applies to the
species throughout its entire range.
Listing the Gierisch mallow as a
threatened species is not the appropriate
determination because the ongoing
threats described above are severe
enough to increase the immediate risk of
extinction. The gypsum mining
operations are anticipated to resume full
operations and expansions in as few as
3 to 10 years, although the mining
operations could occur sooner. Grazing
is ongoing throughout the range of the
Giersich mallow, and climate change is
anticipated to cause more periods of
drought, when livestock graze more
heavily on the Gierisch mallow.
Additionally, red brome and cheatgrass
are abundant throughout the area, and
while they are typically more abundant
in the Gierisch mallow habitat after wet
years, recent wet years have left an
abundant crop of red brome in Gierisch
mallow habitat. Wildfires could occur at
any time as a result of the proliferation
of these invasive species. All of these
factors combined lead us to conclude
that the threat of extinction is high and
immediate, thus warranting a
determination of endangered rather than
threatened for the Gierisch mallow.
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, Tribal, and local
agencies; private organizations; and
individuals. The Act encourages
cooperation with the States and requires
that recovery actions be carried out for
all listed species. The protection
required by Federal agencies and the
prohibitions against certain activities
are discussed, in part, below.
The primary purpose of the Act is the
conservation of endangered and
threatened species and the ecosystems
upon which they depend. The ultimate
goal of such conservation efforts is the
recovery of these listed species, so that
they no longer need the protective
measures of the Act. Subsection 4(f) of
the Act requires the Service to develop
and implement recovery plans for the
conservation of endangered and
threatened species. The recovery
planning process involves the
identification of actions that are
necessary to halt or reverse the species’
decline by addressing the threats to its
survival and recovery. The goal of this
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process is to restore listed species to a
point where they are secure, selfsustaining, and functioning components
of their ecosystems.
Recovery planning includes the
development of a recovery outline
shortly after a species is listed,
preparation of a draft and final recovery
plan, and revisions to the plan as
significant new information becomes
available. The recovery outline guides
the immediate implementation of urgent
recovery actions and describes the
process to be used to develop a recovery
plan. The recovery plan identifies sitespecific management actions that will
achieve recovery of the species,
measurable criteria that determine when
a species may be downlisted or delisted,
and methods for monitoring recovery
progress. Recovery plans also establish
a framework for agencies to coordinate
their recovery efforts and provide
estimates of the cost of implementing
recovery tasks. Recovery teams
(comprised of species experts, Federal
and State agencies, non-government
organizations, and stakeholders) are
often established to develop recovery
plans. If this proposed rule is made
final, when completed, the recovery
outline, draft recovery plan, and the
final recovery plan would be available
on our Web site (https://www.fws.gov/
endangered), or from our Arizona
Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Implementation of recovery actions
generally requires the participation of a
broad range of partners, including other
Federal agencies, States, Tribal,
nongovernmental organizations,
businesses, and private landowners.
Examples of recovery actions include
habitat restoration (e.g., restoration of
native vegetation), research, captive
propagation and reintroduction, and
outreach and education. The recovery of
many listed species cannot be
accomplished solely on Federal lands
because their range may occur primarily
or solely on non-Federal lands. To
achieve recovery of these species
requires cooperative conservation efforts
on private, State, and Tribal lands.
If this species is listed, funding for
recovery actions will be available from
a variety of sources, including Federal
budgets, State programs, and cost share
grants for non-Federal landowners, the
academic community, and
nongovernmental organizations. In
addition, under to section 6 of the Act,
the State of Arizona would be eligible
for Federal funds to implement
management actions that promote the
protection and recovery of the Gierisch
mallow. Information on our grant
programs that are available to aid
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species recovery can be found at:
https://www.fws.gov/grants.
Although the Gierisch mallow is only
proposed for listing under the Act at
this time, please let us know if you are
interested in participating in recovery
efforts for this species. Additionally, we
invite you to submit any new
information on this species whenever it
becomes available and any information
you may have for recovery planning
purposes (see ADDRESSES).
Section 7(a) of the Act 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 designated.
Regulations implementing this
interagency cooperation provision of the
Act are codified at 50 CFR part 402.
Section 7(a)(4) of the Act 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) of
the Act 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 within the
species’ habitat that may require
conference or consultation or both, as
described in the preceding paragraph,
include management and any other
landscape-altering activities on Federal
lands administered by the BLM, such as
mining operations, livestock grazing,
and issuing special use permits.
The Act and its implementing
regulations set forth a series of general
prohibitions and exceptions that apply
to endangered plants. All prohibitions
of section 9(a)(2) of the Act,
implemented by 50 CFR 17.61, 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
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in knowing violation of any State law or
regulation, including State criminal
trespass law. Certain exceptions to the
prohibitions apply to agents of the
Service and State conservation agencies.
This species is currently protected by
the Arizona Native Plant Act (ANPA).
Since it became a candidate species in
2008, Arizona protects the Gierisch
mallow as ‘‘Highly Safeguarded.’’ Plants
in the ‘‘Highly Safeguarded’’ category
under the ANPA include ‘‘plants
resident to this State and listed as
endangered, threatened, or category 1 in
the Federal endangered species act of
1973’’ (ANPA 1997, p. 4). The ANPA
controls collecting, and limited
scientific collection of ‘‘Highly
Safeguarded’’ species is allowed (Austin
2012, p. 1), but the ANPA provides no
protection for plant habitat. Protection
under the Act as an endangered species
will, therefore, offer additional
protections to this species.
We may issue permits to carry out
otherwise prohibited activities
involving endangered and threatened
plant species under certain
circumstances. Regulations governing
permits are codified at 50 CFR 17.62 for
endangered plants, and at 17.72 for
threatened plants. With regard to
endangered plants, a permit must be
issued for the following purposes:
enhancement of propagation or survival
of the species.
It is our policy, as published in the
Federal Register on July 1, 1994 (59 FR
34272), to identify to the maximum
extent practicable at the time a species
is listed, those activities that would or
would not constitute a violation of
section 9 of the Act. The intent of this
policy is to increase public awareness of
the effect of a proposed listing on
proposed and ongoing activities within
the range of species proposed for listing.
The following activities could
potentially result in a violation of
section 9 of the Act; this list is not
comprehensive: Unauthorized
collecting, handling, possessing, selling,
delivering, carrying, or transporting of
the species, including import or export
across State lines and international
boundaries, except for properly
documented antique specimens of these
taxa at least 100 years old, as defined by
section 10(h)(1) of the Act.
Questions regarding whether specific
activities would constitute a violation of
section 9 of the Act should be directed
to the Arizona Ecological Services Field
Office (see FOR FURTHER INFORMATION
CONTACT). Requests for copies of the
regulations concerning listed plants and
general inquiries regarding prohibitions
and permits may be addressed to the
U.S. Fish and Wildlife Service,
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49907
Critical Habitat
have determined that the designation of
critical habitat would not likely increase
the degree of threat to any of the species
and may provide some measure of
benefit, we find that designation of
critical habitat is prudent for the
Gierisch mallow.
Prudency Determination
Section 4 of the Act, as amended, and
implementing regulations (50 CFR
424.12), require that, to the maximum
extent prudent and determinable, the
Secretary designate critical habitat at the
time the species is determined to be
endangered or threatened. Our
regulations at 50 CFR 424.12(a)(1) state
that the designation of critical habitat is
not prudent when one or both of the
following situations exist: (1) The
species is threatened by taking or other
activity and the identification of critical
habitat can be expected to increase the
degree of threat to the species; or (2) the
designation of critical habitat would not
be beneficial to the species.
There is no indication that the
Gierisch mallow threatened by
collection, and there are no likely
increases in the degree of threats to the
species if critical habitat were
designated. This species is not the target
of collection, and the areas we propose
for designation either have restricted
public access (mine sites) or are already
readily open to the public (BLM land).
None of the threats identified to the
species are associated with human
access to the sites, with the exception of
the threats associated with recreational
activities on BLM land. This threat, or
any other identified threat, is not
expected to increase as a result of
critical habitat designation because the
BLM cannot control unauthorized
recreational activities, and the
designation of critical habitat would not
change the situation.
In the absence of finding that the
designation of critical habitat would
increase threats to a species, if there are
any benefits to a critical habitat
designation, then a prudent finding is
warranted. The potential benefits of
critical habitat to the Gierisch mallow
include: (1) Triggering consultation
under section 7 of the Act, in new areas
for actions in which there may be a
Federal nexus where it would not
otherwise occur, because, for example,
Federal agencies were not aware of the
potential impacts of an action on the
species; (2) focusing conservation
activities on the most essential features
and areas; (3) providing educational
benefits to State or county governments,
or private entities; and (4) preventing
people from causing inadvertent harm
to the species. Therefore, because we
Background
It is our intent to discuss below only
those topics directly relevant to the
designation of critical habitat for the
Gierisch mallow in this section of the
proposed rule. For a complete
description of the life history and
habitat needs of the Gierisch mallow,
see the Species Information section
above.
Critical habitat is defined in section 3
of the Act as:
(1) The specific areas within the
geographical area occupied by the
species, at the time it is listed in
accordance with the Act, on which are
found those physical or biological
features
(a) Essential to the conservation of the
species and
(b) Which may require special
management considerations or
protection; and
(2) Specific areas outside the
geographical area occupied by the
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
that are necessary to bring an
endangered 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
requirement that Federal agencies
ensure, in consultation with the Service,
that any action they authorize, fund, or
carry out is not 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 the government or public
Endangered Species Permits, Southwest
Regional Office, P.O. Box 1306,
Albuquerque, NM, 87103–1306;
telephone (505) 248–6911; facsimile
(505) 248–6915.
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Federal Register / Vol. 77, No. 160 / Friday, August 17, 2012 / Proposed Rules
to access private lands. Such
designation does not require
implementation of restoration, recovery,
or enhancement measures by nonFederal landowners. Where a landowner
requests Federal agency funding or
authorization for an action that may
affect a listed species or critical habitat,
the consultation requirements of section
7(a)(2) of the Act would apply, but even
in the event of a destruction or adverse
modification finding, the obligation of
the Federal action agency and the
landowner is not to restore or recover
the species, but to implement
reasonable and prudent alternatives to
avoid destruction or adverse
modification of critical habitat.
Under the first prong of the Act’s
definition of critical habitat, areas
within the geographic area occupied by
the species at the time it was listed (in
this case, currently occupied areas) are
included in a critical habitat designation
if they contain physical or biological
features (1) which are essential to the
conservation of the species and (2)
which may require special management
considerations or protection. For these
areas, critical habitat designations
identify, to the extent known using the
best scientific and commercial data
available, those physical or biological
features that are essential to the
conservation of the species (such as
space, food, cover, and protected
habitat). In identifying those physical
and biological features within an area,
we focus on the principal biological or
physical constituent elements (primary
constituent elements such as roost sites,
nesting grounds, seasonal wetlands,
water quality, tide, soil type) that are
essential to the conservation of the
species. Primary constituent elements
(PCEs) are the elements of physical or
biological features that, when laid out in
the appropriate quantity and spatial
arrangement to provide for a species’
life-history processes, are essential to
the conservation of the species.
Under the second prong of the Act’s
definition of critical habitat, we can
designate critical habitat in areas
outside the geographic area occupied by
the species at the time it is listed (in this
case, outside currently occupied areas),
upon a determination that such areas
are essential for the conservation of the
species. For example, an area currently
occupied by the species but that was not
occupied at the time of listing may be
essential to the conservation of the
species and may be included in the
critical habitat designation. We
designate critical habitat in areas
outside the geographic area occupied by
a species only when a designation
limited to its range would be inadequate
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to ensure the conservation of the
species.
Section 4 of the Act requires that we
designate critical habitat on the basis of
the best scientific data available.
Further, our Policy on Information
Standards Under the Endangered
Species Act (published in the Federal
Register on July 1, 1994 (59 FR 34271)),
the Information Quality Act (section 515
of the Treasury and General
Government Appropriations Act for
Fiscal Year 2001 (Pub. L. 106–554; H.R.
5658)), and our associated Information
Quality Guidelines, provide criteria,
establish procedures, and provide
guidance to ensure that our decisions
are based on the best scientific data
available. They require our biologists, to
the extent consistent with the Act and
with the use of the best scientific data
available, to use primary and original
sources of information as the basis for
recommendations to designate critical
habitat.
When we are determining which areas
should be designated as critical habitat,
our primary source of information is
generally the information developed
during the listing process for the
species. Additional information sources
may include the recovery plan for the
species, articles in peer-reviewed
journals, conservation plans developed
by States and counties, scientific status
surveys and studies, biological
assessments, other unpublished
materials, or experts’ opinions or
personal knowledge.
Habitat is dynamic, and species may
move from one area to another over
time. We recognize that critical habitat
designated at a particular point in time
may not include all of the habitat areas
that we may later determine are
necessary for the recovery of the
species. For these reasons, a critical
habitat designation does not signal that
habitat outside the designated area is
unimportant or may not be needed for
recovery of the species. If we list the
Gierisch mallow, areas that are
important to the conservation of the
species, both inside and outside the
critical habitat designation, would
continue to be subject to: (1)
Conservation actions implemented
under section 7(a)(1) of the Act, (2)
regulatory protections afforded by the
requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their
actions are not likely to jeopardize the
continued existence of any endangered
or threatened species, and (3) the
prohibitions of section 9 of the Act if
actions occurring in these areas may
affect the species. Federally funded or
permitted projects affecting listed
species outside their designated critical
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habitat areas may still result in jeopardy
findings in some cases. These
protections and conservation tools
would continue to contribute to
recovery of this species. Similarly,
critical habitat designations made on the
basis of the best available information at
the time of designation would not
control the direction and substance of
future recovery plans, habitat
conservation plans (HCPs), or other
species conservation planning efforts if
new information available at the time of
these planning efforts calls for a
different outcome.
Physical or Biological Features
In accordance with section 3(5)(A)(i)
and 4(b)(1)(A) of the Act and regulations
at 50 CFR 424.12, in determining which
areas within the geographic area
occupied by the species at the time of
listing to designate as critical habitat,
we consider the physical or biological
features that are essential to the
conservation of the species and which
may require special management
considerations or protection. These
include, but are not limited to:
(1) Space for individual and
population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or
other nutritional or physiological
requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or
rearing (or development) of offspring;
and
(5) Habitats that are protected from
disturbance or are representative of the
historical, geographic, and ecological
distributions of a species.
We derive the specific physical or
biological features required for the
Gierisch mallow from studies of this
species’ habitat, ecology, and life history
as described below. We have
determined that the following physical
or biological features are essential for
the Gierisch mallow.
Space for Individual and Population
Growth and for Normal Behavior
The Gierisch mallow has a limited
distribution; it is only found in a small
area in Utah and Arizona. Within these
areas, the Gierisch mallow requires
appropriate soils, associated formations,
slope, drainage, and plant community
types within the landscape to provide
space for individual growth and to
provide food, water, air, light, minerals,
or other nutritional or physiological
requirements. In both Arizona and Utah,
the Gierisch mallow is found in
gypsiferous outcrops of the Harrisburg
Member of the Kaibab Formation. In
Arizona, these sites may be affiliated
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with the following gypsiferous soil
series:
• Nikey-Ruesh complex,
• Gypill-Hobog complex,
• Hobog-Tidwell complex,
• Hobog-Grapevine complex,
• Grapevine-Shelly complex,
• Hindu-Rock outcrop-Gypill
complex,
• Cave-Harrisburg-Grapevine
complex, and
• Grapevine-Hobcan complex
(Service unpublished data).
Sites in Utah are most affiliated with the
following soil series (Service
unpublished data, 2012, p. 1):
• Badland
• Fluvaquents and Torrifluvents, and
• Riverwash.
The Gierisch mallow occurs at
elevations from 821 to 1,148 m (2,694 to
3,766 ft) in Arizona and from 755 to 861
m (2,477 to 2,825 ft) in Utah. We could
not correlate the Gierisch mallow
occurrences to a specific range of slopes;
therefore, topography is not considered
to be an essential physical feature for
this species (Service unpublished data,
2012).
The Gierisch mallow occurs in
sparsely vegetated, warm desert
communities. All occupied habitat
49909
throughout its range occurs within the
landcover described as Mojave midelevation mixed desert scrub
(NatureServe 2011, p. 2). This
classification represents the extensive
desert scrub in the transition zone above
the Larrea tridentata (creosote)–
Ambrosia dumosa (white bursage)
desert scrub and below the lower
montane woodlands from 700 to 1800 m
(2,296 to 5,905 ft) that occur in the
eastern and central Mojave Desert. The
vegetation within this ecological system
is quite variable. A list of common
plants associated with the Gierisch
mallow habitat is included in Table 2.
TABLE 2—VEGETATION ASSOCIATED WITH THE GIERISCH MALLOW HABITAT (NATURESERVE 2011, P. 2)
Codominant and diagnostic
species
Coleogyne ramosissima
(Blackbrush).
Eriogonum fasciculatum
(Buckwheat).
Ephedra nevadensis (Nevada jointfir).
Grayia spinosa (Spiny
hopsage).
Woody plant species associates
Other common nonwoody species associates
Acacia greggii (Catclaw acacia) ......................................
Achnatherum hymenoides (Indian ricegrass).
Canotia holacantha (Crucifixion thorn) ...........................
A. speciosum (Desert needlegrass).
Ephedra nevadensis (Nevada jointfir) .............................
Muhlenbergia porteri (Bush muhly).
Ephedra torreyana (Desert Mormon tea) ........................
Eriogonum sp. (Various annual buckwheats).
Encelia farinosa (Brittlebush) ..........................................
Purshia stansburiana (Stansbury cliffrose) .....................
Gutierrezia sarothrae (Broom snakeweed).
Pleuraphis jamesii (James’ galleta).
Poa secunda (Sandberg bluegrass).
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Depending on the moisture regime,
the Gierisch mallow also can be
associated with native annuals that are
often ephemeral (seen only in the
spring) and, like many Mohave Desert
plant species, seasonally abundant
based on climatic conditions.
Therefore, based on the information
above, we identify gypsum soils found
in the Harrisburg Member of the Kaibab
Formation from 755 to 1,148 m (2,477
to 3,766 ft) and with the appropriate
native vegetation communities to be an
essential physical or biological feature
for this species.
Sites for Reproduction, Germination,
Seed Dispersal or Pollination
The Gierisch mallow is a native
species of sparsely vegetated, warm
desert communities. Although we do
not know how the species is pollinated,
other species of the genus Sphaeralcea
(globemallows) are pollinated by
Diadasia diminuta (globemallow bee),
which specializes in pollinating plants
of this genus. Globemallow bees are
considered important pollinators for
globemallows (Tepedino 2010, p. 2).
These solitary bees, as well as other
Diadasia species, are known to occur
within the range of the Gierisch mallow
(Sipes and Tepedino 2005, pp. 490–491;
Sipes and Wolf 2001, pp. 146–147), so
it is reasonable to assume that they are
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potential pollinators of the Gierisch
mallow and other associated vegetation
in the surrounding community. The
globemallow bee, along with other
solitary bees, nest in the ground, and
nests are commonly found in partially
compacted soil along the margins of dirt
roads in the western United States
(Tepedino 2010, p. 1). It is important to
protect those nesting sites and
associated natural habitat for the
globemallow bee and other potential
pollinators.
Natural habitat for the globemallow
bee and other potential pollinators
includes those appropriate vegetation
communities described above in Table
2. The lack of favorable natural habitat
can negatively influence pollination
productivity (Kremen et al. 2004, pp.
1116–1117). Sites for the Gierisch
mallow’s reproduction, germination,
and seed dispersal, and pollination
providers are found within the
communities described above. Because
the Gierisch mallow is potentially
pollinated by globemallow bees and
other insects, the presence of pollinator
populations is essential to the
conservation of the species. Preservation
of the mix of species and interspecific
interactions they encompass greatly
improves the chances for survival of
rare species in their original location
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and habitat (Tepedino et al. 1996, p.
245). Redundancy of pollinator species
is important because a pollinator
species may be abundant one year and
less so the next year. Maintaining a full
suite of pollinators allows for the
likelihood that another pollinator
species will stand in for a less abundant
one, and is essential in assuring
adequate pollination.
Bees have a limited foraging range
strongly correlated to body size
(Greenleaf, 2005, p. 17; SteffanDewenter and Tscharntke 1999, pp.
434–435). Fragmentation of habitat can
result in isolating plants from pollinator
nesting sites. When the distance
between plants and the natural habitats
of pollinators increases, plant
reproduction (as measured by mean
seed set) can decline by as much as 50
percent in some plant species (SteffanDewenter and Tscharntke 1999, pp.
435–436). Optimal pollination occurs
when there is abundance of individual
pollinators and a species-rich bee
community (Greenleaf 2005, p. 47).
Greenleaf (2005, p. 15) defines the
typical homing distance of a bee taxon
as the distance at which 50 percent of
individual bees of that taxon have the
ability to return to their home (nest,
etc.). Solitary bees of various species
have been documented to have foraging
distances ranging from 150 m (492 ft) to
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1,200 m (3,937 ft) (Gathmann and
Tscharntke 2002, p. 760; Greenleaf et al.
2007, p. 593).
Therefore, based on the information
above, we identify pollinators and
associated appropriate native plant
communities within 1,200 m (3,937 ft)
of occupied sites to be an essential
physical or biological feature for this
species.
Habitats Protected From Disturbance or
Representative of the Historical,
Geographic, and Ecological
Distributions of the Species
The species’ known range has not
contracted or expanded since the
species was described in 2002. All sites
contribute to ecological distribution and
function for this species by providing
representation across the species’
limited current range. It is important to
minimize surface-disturbing activities
throughout the limited range of the
Gierisch mallow. Surface disturbing
activities, such mining and recreation
activities (OHV and impacts related to
target shooting), remove the unique soil
composition and associated vegetation
communities that the Gierisch mallow
needs.
Additionally, it is important to have
areas in all the units free of nonnative,
invasive species, such as red brome and
cheatgrass. As previously discussed in
Factor A, above, both cheatgrass and red
brome tend to not grow well in gypsum
outcrops in normal (dry) rainfall years;
however, they can be abundant in
Gierisch mallow habitat during wet
years. Invasions of annual, nonnative
species, such as cheatgrass, are well
documented to contribute to increased
fire frequencies (Brooks and Pyke 2002,
p. 5; Grace et al. 2002, p. 43; Brooks et
al. 2003, pp. 4, 13, 15). The disturbance
caused by increased fire frequencies
creates favorable conditions for
increased invasion by cheatgrass. The
end result is a downward spiral, where
an increase in invasive species results in
more fires, more fires create more
disturbances, and more disturbances
lead to increased densities of invasive
species. The risk of fire is expected to
increase from 46 to 100 percent when
the cover of cheatgrass increases from
12 to 45 percent or more (Link et al.
2006, p. 116). The invasion of red brome
into the Mojave Desert of western North
America poses similar threats to fire
regimes, native plants, and other
federally protected species (Brooks et al.
2004, pp. 677–678). Brooks (1999, p. 16)
also found that high interspace biomass
of red brome and cheatgrass resulted in
greater fire danger in the Mojave Desert.
Brooks (1999, p. 18) goes on to state that
the ecological effects of cheatgrass and
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red brome-driven fires are significant
because of their intensity and
consumption of perennial shrubs.
Imprecise forecasts of the impacts of
climate change make the identification
of areas that may become essential
impractical at this time. Therefore, we
have not identified additional areas
outside those currently occupied where
the species may move to, or be
transplanted to, as a result of the
impacts due to climate change.
Based on the information above, we
identify areas free of disturbance and
areas with low densities or absence of
nonnative, invasive species to be an
essential physical or biological feature
for this species.
Primary Constituent Elements for the
Gierisch Mallow
Under the Act and its implementing
regulations, we are required to identify
the physical or biological features
essential to the conservation of the
Gierisch mallow in areas occupied at
the time of listing, focusing on the
features’ primary constituent elements.
We consider primary constituent
elements to be the elements of physical
or biological features that provide for a
species’ life-history processes and are
essential to the conservation of the
species.
Based on our current knowledge of
the physical or biological features and
habitat characteristics required to
sustain the species’ life-history
processes, we determine that the
primary constituent elements specific to
the Gierisch mallow are:
(1) Appropriate geological layers or
gypsiferous soils, in the Harrisburg
Member of the Kaibab Formation, that
support individual Gierisch mallow
plants or their habitat, within the
elevation range of 775 to 1,148 m (2,477
to 3,766 ft). Appropriate soils are
defined as:
• Badland,
• Fluvaquents and Torrifluvents,
• Riverwash,
• Cave-Harrisburg-Grapevine
complex,
• Grapevine-Hobcan complex,
• Nikey-Ruesh complex,
• Gypill-Hobog complex,
• Hobog-Tidwell complex,
• Hobog-Grapevine complex,
• Grapevine-Shelly complex, and
• Hindu-Rock outcrop-Gypill
complex.
(2) Appropriate Mojave desert scrub
plant community and associated native
species for the soil types at the sites
listed in PCE 1.
(3) The presence of insect visitors or
pollinators, such as the globemallow bee
and other solitary bees. To ensure the
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proper suite of pollinators are present,
this includes habitat that provides
nesting substrate for pollinators in the
areas described in PCE 2.
(4) Areas free of disturbance and areas
with low densities or absence of
nonnative, invasive plants, such as red
brome and cheatgrass.
With this proposed designation of
critical habitat, we intend to identify the
physical or biological features essential
to the conservation of the species,
through the identification of primary
constituent elements sufficient to
support the life-history processes of the
species. All units proposed to be
designated as critical habitat are
currently occupied by the Gierisch
mallow and contain the primary
constituent elements sufficient to
support the life-history needs of the
species.
Special Management Considerations or
Protection
When designating critical habitat, we
assess whether the specific areas within
the geographic area occupied by the
species at the time of listing contain
features that are essential to the
conservation of the species and which
may require special management
considerations or protection. The
features essential to the conservation of
this species may require special
management considerations or
protection to reduce the direct and
indirect effects associated with the
following threats: Habitat loss and
degradation from mining operations;
livestock grazing; recreation activities;
and invasive plant species. Please refer
to Factor A above for a complete
description of these threats.
Special management to protect the
features essential to the conservation of
the species from the effects of gypsum
mining include creating managed plant
preserves and open spaces, limiting
disturbances to and within suitable
habitats, and evaluating the need for
and conducting restoration or
revegetation of native plants in open
spaces or plant preserves containing
similar gypsum soils. Management
activities that could ameliorate these
threats include (but are not limited to)
seed collection from the Gierisch
mallow throughout its range, including
those plants within the footprint of each
mine. These seeds could be used to
begin propagation studies to determine
the long-term viability of plants growing
in reclaimed soils. Additionally, these
seeds could be used to begin
propagating plants to be planted in
other gypsum deposits and to augment
existing populations. Special
management may be necessary to
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protect features essential to the
conservation of the Gierisch mallow
from livestock grazing, including
fencing populations; avoiding activities,
such as water trough placement, that
might concentrate livestock near or in
occupied habitat; and removing
livestock from critical habitat during the
species’ growing and reproductive
seasons, especially during periods of
flowering and fruiting. Special
management that may be necessary to
protect the features essential to the
conservation of the Gierisch mallow
from recreational activities includes
directing recreational use away from
and outside of critical habitat, fencing
small populations, removing or limiting
access routes, ensuring land use
practices do not disturb the hydrologic
regime, and avoiding activities that
might concentrate water flows or
sediments into critical habitat.
Additionally, threats related to both
control of nonnative, invasive species
and fire suppression and fire-related
activities resulting from the spread of
nonnative, invasive species include:
• Crushing and trampling of plants
from fire suppression and treatment
activities;
• Damage to seedbank as a result of
fire severity;
• Soil erosion; and
• An increase of invasive plant
species that may compete with native
plant species as a result of wildfires
removing non-fire-adapted native plant
species or as a result of fire suppression
equipment introducing invasive plant
species.
Criteria Used To Identify Critical
Habitat
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Geographic Range Occupied at the Time
of Listing
As required by section 4(b)(2) of the
Act, we use the best scientific data
available to designate critical habitat.
We review available information
pertaining to the habitat requirements of
the species. In accordance with the Act
and its implementing regulation at 50
CFR 424.12(e), we consider whether
designating additional areas—outside
those currently occupied as well as
those occupied at the time of listing—
are necessary to ensure the conservation
of the species. We are proposing to
designate critical habitat in areas within
the geographic area occupied by the
species as described above in the
proposed rule to list the Gierisch
mallow and that contain one or more of
the identified primary constituent
elements. We are not currently
proposing to designate any areas outside
the geographic area occupied by the
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species, because occupied areas are
sufficient for the conservation of the
species.
Our rationale for not including areas
outside of the geographic range of
Gierisch mallow is twofold. One, the
areas designated as occupied contain
the physical and biological features
essential for the species. Secondly,
within the overall geographic range of
the species, there are some areas or
patches devoid of plants, as one would
expect. Therefore, it follows that within
the critical habitat units we are
proposing, there are areas without the
plant growing in them. Thus, even
though all units are occupied when
considering the appropriate scale for
critical habitat designation, there is still
room for more plants to grow. This
should provide room for expansion of
the existing populations. Should
recovery planning for this species
include actions to augment or establish
additional populations, the proposed
critical habitat units will provide for
enough habitat to allow for those
activities. Therefore, we conclude that
additional areas outside of the
geographic range of the Gierisch mallow
are not needed to conserve the species.
There is no information on the
historical range of this species; however,
it is possible that the gypsum hills
supported populations of the Gierisch
mallow before active mining (and
removal of the gypsum) began, but there
is no information that the species
occurred outside of its current range.
Currently, there are 18 known
populations restricted to less than
approximately 186 ha (460 ac) in
Arizona and Utah, combined. The main
populations in Arizona are located
south of the Black Knolls,
approximately 19.3 km (12 mi)
southwest of St. George, Utah, with the
southernmost population of this group
being on the edge of Black Rock Gulch
near Mokaac Mountain. There is another
population approximately 4.8 km (3 mi)
north of the Black Knolls, on ASLD
lands near the Arizona/Utah State line.
The Utah population is located on BLM
lands within 3.2 km (2 mi) of the
Arizona/Utah State line, near the
Arizona population on ASLD land.
Gypsum outcrops associated with the
Harrisburg Member are scattered
throughout BLM lands in northern
Arizona and southern Utah. Extensive
surveys were conducted in these areas
because numerous other rare plant
species are associated with these
landforms. Gierisch mallow plants were
not located in any other areas beyond
what is currently known and described
above (Atwood 2008, p. 1). In
identifying proposed critical habitat
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49911
units for Gierisch mallow, we proceeded
through a multi-step process.
Mapping
We obtained records of Gierisch
mallow distribution from BLM’s
Arizona Strip Field Office, BLM’s St.
George Field Office, and both published
and unpublished documentation from
our files. This information included
BLM hand-mapped polygons that
outlined Gierisch mallow habitats in
Arizona and Utah.
For all areas, survey data from 2001
to 2011 were available and evaluated to
identify the extent of occupied habitat
(provided by BLM). Although occupied
sites may gradually change, recent
survey results confirm that plant
distribution is similar to observed
distributions over the last 10 years.
Our approach to delineating critical
habitat units was applied in the
following manner:
(1) We overlaid Gierisch mallow
locations into a GIS database. This
provided us with the ability to examine
slope, aspect, elevation, vegetation
community, and topographic features,
such as drainages in relation to the
locations of Gierisch mallow on the
landscape. The locations of Gierisch
mallow, and their relationship to
landscape features, verified our
previous knowledge of the species and
slightly expanded the previously
recorded elevation ranges for Gierisch
mallow. We examined Gierisch mallow
locations in an attempt to identify any
correlation with aspect, slope, and
occurrence location for this species;
however we found no such correlation.
To better understand the relationship
of the Gierisch mallow locations to
specific soils, we also examined soil
series layers, aerial photography, and
hardcopy geologic maps. For Gierisch
mallow, we analyzed soil survey layers.
For Gierisch mallow locations in Utah,
we found that 26.02 percent of all
individuals rangewide (AZ and UT) are
associated with Badland, and 0.03
percent of all individuals are associated
with Fluvaquents and Torrifluvents soil
complexes. In Arizona, we found that
occupied sites are associated with the
following soil types (percentages are
rangewide):
• Nikey-Ruesh complex (3.14
percent),
• Gypill-Hobog complex (65.94
percent),
• Hobog-Tidwell complex (3.53
percent),
• Hobog-Grapevine complex (0.85
percent),
• Grapevine-Shelly complex (0.24
percent), and
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• Hindu-Rock outcrop-Gypill
complex (0.25 percent) (Service
unpublished data).
This provided us with several
polygons of occupied habitat spread
across the above soil series.
(2) To further refine our critical
habitat, we then included a 1,200 m
(3,937 feet) buffer around the polygons
of occupied habitat to ensure that all
potential pollinators would have a
sufficient land base to establish nesting
sites and to provide pollinating services
for Gierisch mallow, as described in
Primary Constituent Elements above.
Additionally, the 1,200 m (3,937 feet)
buffer included three other gypsiferous
soil types that also contain the
necessary habitat for the Gierisch
mallow. These soil types are the
• Riverwash,
• Cave-Harrisburg-Grapevine
complex, and
• Grapevine-Hobcan complex.
(3) We then drew critical habitat
boundaries that captured the locations,
soils, and pollinator habitat elucidated
under (1) and (2) above. Critical habitat
designations were then mapped using
Albers Equal Area (Albers) North
American Datum 83 (NAD 83)
coordinates.
When determining proposed critical
habitat boundaries, we made every
effort to avoid including developed
areas such as lands covered by
buildings, pavement, and other
structures because such lands lack
physical or biological features for
Gierisch mallow. The scale of the maps
we prepared under the parameters for
publication within the Code of Federal
Regulations may not reflect the
exclusion of such developed lands. Any
such lands inadvertently left inside
critical habitat boundaries shown on the
maps of this proposed rule have been
excluded by text in the proposed rule
and are not proposed for designation as
critical habitat. Therefore, if the critical
habitat is finalized as proposed, a
Federal action involving these lands
would not trigger section 7 consultation
with respect to critical habitat and the
requirement of no adverse modification
unless the specific action would affect
the physical or biological features in the
adjacent critical habitat.
We are proposing for designation of
critical habitat lands that we have
determined areas occupied at the time
of listing and contain sufficient
elements of physical or biological
features to support life-history processes
essential for the conservation of the
species. No lands outside of the
geographic area occupied at the time of
listing have been proposed for listing.
The area included in both units is large
enough and contains sufficient habitat
to ensure the conservation of Gierisch
mallow.
Proposed Critical Habitat Designation
We are proposing two units as critical
habitat for Gierisch mallow. Both units
are occupied and contain features that
are essential to the conservation of
Gierisch mallow. We mapped the units
with a degree of precision
commensurate with the available
information and the size of the unit. The
two areas we propose as critical habitat
are the Starvation Point Unit and the
Black Knolls Unit. The approximate
area of each proposed critical habitat
unit is shown in Table 3.
TABLE 3—PROPOSED CRITICAL HABITAT UNITS FOR GIERISCH MALLOW
[Area estimates reflect all land within critical habitat unit boundaries]
Critical Habitat unit
BLM AZ Federal
BLM UT Federal
AZ State Lands
Totals
Unit 1. Starvation Point .....
Unit 2. Black Knolls ...........
0 ........................................
3,586 ha (8,862 ac) ..........
1,022 ha (2,526 ac) ..........
0 ........................................
316 ha (782 ac) ................
263 ha (651 ac) ................
1,339 ha (3,309 ac).
3,850 ha (9,513 ac).
Totals ..........................
3,586 ha (8,862 ac) ..........
1,022 ha (2,526 ac) ..........
580 ac (1,434 ac) ..............
5,189 ha (12,822 ac).
Note: Area sizes may not sum due to rounding.
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We present brief descriptions of all
units, and reasons why they meet the
definition of critical habitat for Gierisch
mallow, as follows.
Unit 1: Starvation Point
This unit consists of approximately
1,339 ha (3,308.7 ac) and occurs on land
managed by both Utah BLM (1,022 ha;
2,526.46 ac) and ASLD (316 ha; 782.24
ac). This unit was occupied at the time
of listing and contains the features
essential to the conservation of the
species. Unit 1 contains two Gierisch
mallow populations, including the
second largest population. Unit 1 is
located west of I–15 as this highway
crosses the State line of Arizona and
Utah, and is bounded by the Virgin
River to the west and I–15 to the south
and east.
The features essential to the
conservation of the species may require
special management considerations or
protection to control invasive plant
species, to control habitat degradation
due to the recreation and mining
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activities that disrupt the soil
composition, and to maintain the
identified associated vegetation and
pollinators essential to the conservation
of the species. The portion of habitat
that occurs on ASLD occurs within the
footprint of the Georgia-Pacific Mine,
which could resume gypsum mining
operations in the near future. Grazing,
which can modify the primary
constituent elements and may require
special management, typically occurs
outside of the growing season for
Gierisch mallow in the one pasture on
BLM land within this unit; however,
recent wildfires in adjacent pastures in
this allotment have resulted in livestock
grazing occurring into the spring
growing season for Gierisch mallow.
These recently burned pastures have
since been rehabilitated, and livestock
grazing is anticipated to return to its
normal grazing rotation of November 1
to February 28 in the future (Douglas
2012, p. 1).
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Unit 2: Black Knolls
This unit consists of approximately
3,850 ha (9,513.30 ac) and occurs on
land managed by both Arizona BLM
(3,586.28 ha; 8,861.90 ac) and ASLD
(263.62 ha; 651.41 acres). This unit is
occupied at the time of listing and
contains the features essential to the
conservation of the species. Unit 2
contains the remaining 16 Gierisch
mallow populations, including the
largest population. Unit 2 is located
south of I–15 as this highway crosses
the State line of Arizona and Utah, and
is bounded by Black Rock Gulch to the
west and Mokaac Mountain to the south
and east.
The features essential to the
conservation of the species may require
special management considerations or
protection to control invasive plant
species, to control habitat degradation
due to mining activities that disrupt the
soil composition, and to maintain the
identified associated vegetation and
pollinators essential to the conservation
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of the species. The largest population of
Gierisch mallow occurs in the area of
the proposed expansion of the Black
Rock Gypsum Mine. As described in the
proposed listing discussion above,
grazing on BLM AZ lands typically
occurs during the growing season for
Gierisch mallow on all three BLM AZ
allotments and is expected to modify
the primary constituent elements,
although some of the pastures are in a
rest/rotation system in which a pasture
may see an entire year of rest before
being grazed again.
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Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires
Federal agencies, including the Service,
to ensure that any action they fund,
authorize, or carry out is not likely to
jeopardize the continued existence of
any endangered species or threatened
species or result in the destruction or
adverse modification of designated
critical habitat of such species. In
addition, section 7(a)(4) of the Act
requires Federal agencies to confer with
the Service on any agency action that is
likely to jeopardize the continued
existence of any species proposed to be
listed under the Act or result in the
destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit
Courts of Appeals have invalidated our
regulatory definition of ‘‘destruction or
adverse modification’’ (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F. 3d
1059 (9th Cir. 2004) and Sierra Club v.
U.S. Fish and Wildlife Service et al., 245
F.3d 434, 442 (5th Cir. 2001)), and we
do not rely on this regulatory definition
when analyzing whether an action is
likely to destroy or adversely modify
critical habitat. Under the statutory
provisions of the Act, we determine
destruction or adverse modification on
the basis of whether, with
implementation of the proposed Federal
action, the affected critical habitat
would continue to serve its intended
conservation role for the species.
If a Federal action may affect a listed
species or its critical habitat, the
responsible Federal agency (action
agency) must enter into consultation
with us. Examples of actions that are
subject to the section 7 consultation
process are actions on State, tribal,
local, or private lands that require a
Federal permit (such as a permit from
the U.S. Army Corps of Engineers under
section 404 of the Clean Water Act (33
U.S.C. 1251 et seq.) or a permit from the
Service under section 10 of the Act) or
that involve some other Federal action
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(such as funding from the Federal
Highway Administration, Federal
Aviation Administration, or the Federal
Emergency Management Agency).
Federal actions not affecting listed
species or critical habitat, and actions
on State, tribal, local, or private lands
that are not federally funded or
authorized, do not require section 7
consultation.
As a result of section 7 consultation,
we document compliance with the
requirements of section 7(a)(2) through
our issuance of:
(1) A concurrence letter for Federal
actions that may affect, but are not
likely to adversely affect, listed species
or critical habitat; or
(2) A biological opinion for Federal
actions that may affect, or are likely to
adversely affect, listed species or critical
habitat.
When we issue a biological opinion
concluding that a project is likely to
jeopardize the continued existence of a
listed species and/or destroy or
adversely modify critical habitat, we
provide reasonable and prudent
alternatives to the project, if any are
identifiable, that would avoid the
likelihood of jeopardy and/or
destruction or adverse modification of
critical habitat. We define ‘‘reasonable
and prudent alternatives’’ (at 50 CFR
402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner
consistent with the intended purpose of
the action,
(2) Can be implemented consistent
with the scope of the Federal agency’s
legal authority and jurisdiction,
(3) Are economically and
technologically feasible, and
(4) Would, in the Director’s opinion,
avoid the likelihood of jeopardizing the
continued existence of the listed species
and/or avoid the likelihood of
destroying or adversely modifying
critical habitat.
Reasonable and prudent alternatives
can vary from slight project
modifications to extensive redesign or
relocation of the project. Costs
associated with implementing a
reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require
Federal agencies to reinitiate
consultation on previously reviewed
actions in instances where we have
listed a new species or subsequently
designated critical habitat that may be
affected and the Federal agency has
retained discretionary involvement or
control over the action (or the agency’s
discretionary involvement or control is
authorized by law). Consequently,
Federal agencies sometimes may need to
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49913
request reinitiation of consultation with
us on actions for which formal
consultation has been completed, if
those actions with discretionary
involvement or control may affect
subsequently listed species or
designated critical habitat.
Application of the ‘‘Adverse
Modification’’ Standard
The key factor related to the adverse
modification determination is whether,
with implementation of the proposed
Federal action, the affected critical
habitat would continue to serve its
intended conservation role for the
species. Activities that may destroy or
adversely modify critical habitat are
those that alter the physical or
biological features to an extent that
appreciably reduces the conservation
value of critical habitat for Gierisch
mallow. As discussed above, the role of
critical habitat is to support life-history
needs of the species and provide for the
conservation of the species.
Section 4(b)(8) of the Act requires us
to briefly evaluate and describe, in any
proposed or final regulation that
designates critical habitat, activities
involving a Federal action that may
destroy or adversely modify such
habitat, or that may be affected by such
designation.
Activities that may affect critical
habitat, when carried out, funded, or
authorized by a Federal agency, should
result in consultation for the Gierisch
mallow. These activities include, but are
not limited to, actions that would
significantly alter soil composition that
Gierisch mallow requires, including but
not limited to mining operations,
livestock grazing, and special use
permits for recreation activities.
Exemptions
Application of Section 4(a)(3) of the Act
The National Defense Authorization
Act for Fiscal Year 2004 (Pub. L. 108–
136) amended the Act to limit areas
eligible for designation as critical
habitat. Specifically, section 4(a)(3)(B)(i)
of the Act (16 U.S.C. 1533(a)(3)(B)(i))
now provides: ‘‘The Secretary shall not
designate as critical habitat any lands or
other geographic areas owned or
controlled by the Department of
Defense, or designated for its use, that
are subject to an integrated natural
resources management plan prepared
under section 101 of the Sikes Act (16
U.S.C. 670a), if the Secretary determines
in writing that such plan provides a
benefit to the species for which critical
habitat is proposed for designation.’’
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There are no Department of Defense
lands within the proposed critical
habitat designation.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that
the Secretary shall designate and make
revisions to critical habitat on the basis
of the best available scientific data after
taking into consideration the economic
impact, national security impact, and
any other relevant impact of specifying
any particular area as critical habitat.
The Secretary may exclude an area from
critical habitat if he determines that the
benefits of such exclusion outweigh the
benefits of specifying such area as part
of the critical habitat, unless he
determines, based on the best scientific
data available, that the failure to
designate such area as critical habitat
will result in the extinction of the
species. In making that determination,
the statute on its face, as well as the
legislative history, are clear that the
Secretary has broad discretion regarding
which factor(s) to use and how much
weight to give to any factor.
Under section 4(b)(2) of the Act, we
may exclude an area from designated
critical habitat based on economic
impacts, impacts on national security,
or any other relevant impacts. In
considering whether to exclude a
particular area from the designation, we
identify the benefits of including the
area in the designation, identify the
benefits of excluding the area from the
designation, and evaluate whether the
benefits of exclusion outweigh the
benefits of inclusion. If the analysis
indicates that the benefits of exclusion
outweigh the benefits of inclusion, the
Secretary may exercise his discretion to
exclude the area only if such exclusion
would not result in the extinction of the
species.
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Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we
consider the economic impacts of
specifying any particular area as critical
habitat. In order to consider economic
impacts, we are preparing an analysis of
the economic impacts of the proposed
critical habitat designation and related
factors. Potential land use sectors that
may be affected by the critical habitat
designation include mining, livestock
operations, and OHV use, and recreation
activities. We also consider any social
impacts that might occur because of the
designation.
We will announce the availability of
the draft economic analysis as soon as
it is completed, at which time we will
seek public review and comment. At
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that time, copies of the draft economic
analysis will be available for
downloading from the Internet at
https://www.regulations.gov, or by
contacting the Arizona Ecological
Services Field Office directly (see FOR
FURTHER INFORMATION CONTACT). During
the development of a final designation,
we will consider economic impacts,
public comments, and other new
information, and areas may be excluded
from the final critical habitat
designation under section 4(b)(2) of the
Act and our implementing regulations at
50 CFR 424.19.
Exclusions Based on National Security
Impacts
Under section 4(b)(2) of the Act, we
consider whether there are lands owned
or managed by the Department of
Defense where a national security
impact might exist. In preparing this
proposal, we have determined that the
lands within the proposed designation
of critical habitat for the Gierisch
mallow are not owned or managed by
the Department of Defense, and,
therefore, we anticipate no impact on
national security. Consequently, the
Secretary does not propose to exert his
discretion to exclude any areas from the
final designation based on impacts on
national security.
Exclusions Based on Other Relevant
Impacts
Under section 4(b)(2) of the Act, we
consider any other relevant impacts, in
addition to economic impacts and
impacts on national security. We
consider a number of factors, including
whether the landowners have developed
any habitat conservation plans or other
management plans for the area, or
whether there are conservation
partnerships that would be encouraged
by designation of, or exclusion from,
critical habitat. In addition, we look at
any tribal issues, and consider the
government-to-government relationship
of the United States with tribal entities.
We also consider any social impacts that
might occur because of the designation.
We are not proposing any exclusions
at this time from the proposed critical
habitat designation under section 4(b)(2)
of the Act based on partnerships,
management, or protection afforded by
cooperative management efforts.
Peer Review
In accordance with our joint policy on
peer review published in the Federal
Register on July 1, 1994 (59 FR 34270),
we will seek the expert opinions of at
least three appropriate and independent
specialists regarding this proposed rule.
The purpose of peer review is to ensure
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that our proposed listing and critical
habitat designation are based on
scientifically sound data, assumptions,
and analyses. We have invited these
peer reviewers to comment during this
public comment period on our specific
assumptions and conclusions in this
proposed rule.
We will consider all comments and
information received during this
comment period on this proposed rule
during our preparation of a final
determination. Accordingly, the final
decision may differ from this proposal.
Public Hearings
Section 4(b)(5) of the Act provides for
one or more public hearings on this
proposal, if requested. Requests must be
received within 45 days after the date of
publication of this proposed rule in the
Federal Register. Such requests must be
sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will
schedule public hearings on this
proposal, if any are requested, and
announce the dates, times, and places of
those hearings, as well as how to obtain
reasonable accommodations, in the
Federal Register and local newspapers
at least 15 days before the hearing.
Required Determinations
Regulatory Planning and Review—
Executive Orders 12866 and 13563
Executive Order 12866 provides that
the Office of Information and Regulatory
Affairs (OIRA) will review all significant
rules. The Office of Information and
Regulatory Affairs has determined that
this rule is not significant.
Executive Order 13563 reaffirms the
principles of E.O. 12866, while calling
for improvements in the nation’s
regulatory system to promote
predictability, to reduce uncertainty,
and to use the best, most innovative,
and least burdensome tools for
achieving regulatory ends. The
executive order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes
further that regulations must be based
on the best available science and that
the rulemaking process must allow for
public participation and an open
exchange of ideas. We have developed
this rule in a manner consistent with
these requirements.
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act
(RFA; 5 U.S.C. 601 et seq.) as amended
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by the Small Business Regulatory
Enforcement Fairness Act (SBREFA) of
1996 (5 U.S.C. 801 et seq.), whenever an
agency must publish a notice of
rulemaking for any proposed or final
rule, it must prepare and make available
for public comment a regulatory
flexibility analysis that describes the
effects of the rule on small entities
(small businesses, small organizations,
and small government jurisdictions).
However, no regulatory flexibility
analysis is required if the head of the
agency certifies the rule will not have a
significant economic impact on a
substantial number of small entities.
The SBREFA amended the RFA to
require Federal agencies to provide a
certification statement of the factual
basis for certifying that the rule will not
have a significant economic impact on
a substantial number of small entities.
At this time, we lack the available
economic information necessary to
provide an adequate factual basis for the
required RFA finding. Therefore, we
defer the RFA finding until completion
of the draft economic analysis prepared
under section 4(b)(2) of the Act and
Executive Order 12866. This draft
economic analysis will provide the
required factual basis for the RFA
finding. Upon completion of the draft
economic analysis, we will announce
availability of the draft economic
analysis of the proposed designation in
the Federal Register and reopen the
public comment period for the proposed
designation. We will include with this
announcement, as appropriate, an initial
regulatory flexibility analysis or a
certification that the rule will not have
a significant economic impact on a
substantial number of small entities
accompanied by the factual basis for
that determination.
We have concluded that deferring the
RFA finding until completion of the
draft economic analysis is necessary to
meet the purposes and requirements of
the RFA. Deferring the RFA finding in
this manner will ensure that we make a
sufficiently informed determination
based on adequate economic
information and provide the necessary
opportunity for public comment.
Energy Supply, Distribution, or Use—
Executive Order 13211
Executive Order 13211 (Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use) requires agencies
to prepare Statements of Energy Effects
when undertaking certain actions. We
do not expect the designation of this
proposed critical habitat to significantly
affect energy supplies, distribution, or
use. Therefore, this action is not a
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significant energy action, and no
Statement of Energy Effects is required.
However, we will further evaluate this
issue as we conduct our economic
analysis, and review and revise this
assessment as warranted.
Unfunded Mandates Reform Act
(2 U.S.C. 1501 et seq.)
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.), we make the following findings:
(1) This rule would not produce a
Federal mandate. In general, a Federal
mandate is a provision in legislation,
statute, or regulation that would impose
an enforceable duty upon State, local, or
tribal governments, or the private sector,
and includes both ‘‘Federal
intergovernmental mandates’’ and
‘‘Federal private sector mandates.’’
These terms are defined in 2 U.S.C.
658(5)–(7). ‘‘Federal intergovernmental
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
upon State, local, or tribal governments’’
with two exceptions. It excludes ‘‘a
condition of Federal assistance.’’ It also
excludes ‘‘a duty arising from
participation in a voluntary Federal
program,’’ unless the regulation ‘‘relates
to a then-existing Federal program
under which $500,000,000 or more is
provided annually to State, local, and
tribal governments under entitlement
authority,’’ if the provision would
‘‘increase the stringency of conditions of
assistance’’ or ‘‘place caps upon, or
otherwise decrease, the Federal
Government’s responsibility to provide
funding,’’ and the State, local, or tribal
governments ‘‘lack authority’’ to adjust
accordingly. At the time of enactment,
these entitlement programs were:
Medicaid; Aid to Families with
Dependent Children work programs;
Child Nutrition; Food Stamps; Social
Services Block Grants; Vocational
Rehabilitation State Grants; Foster Care,
Adoption Assistance, and Independent
Living; Family Support Welfare
Services; and Child Support
Enforcement. ‘‘Federal private sector
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
upon the private sector, except (i) a
condition of Federal assistance or (ii) a
duty arising from participation in a
voluntary Federal program.’’
The designation of critical habitat
does not impose a legally binding duty
on non-Federal Government entities or
private parties. Under the Act, the only
regulatory effect is that Federal agencies
must ensure that their actions do not
destroy or adversely modify critical
habitat under section 7. While nonFederal entities that receive Federal
funding, assistance, or permits, or that
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otherwise require approval or
authorization from a Federal agency for
an action, may be indirectly impacted
by the designation of critical habitat, the
legally binding duty to avoid
destruction or adverse modification of
critical habitat rests squarely on the
Federal agency. Furthermore, to the
extent that non-Federal entities are
indirectly impacted because they
receive Federal assistance or participate
in a voluntary Federal aid program, the
Unfunded Mandates Reform Act would
not apply, nor would critical habitat
shift the costs of the large entitlement
programs listed above onto State
governments.
(2) We do not believe that this rule
would significantly or uniquely affect
small governments because the lands
being proposed for critical habitat
designation are owned by the State of
Arizona and the BLM. Neither of these
government entities fit the definition of
‘‘small governmental jurisdiction.’’
Therefore, a Small Government Agency
Plan is not required. However, we will
further evaluate this issue as we
conduct our economic analysis, and
review and revise this assessment as
warranted.
Takings—Executive Order 12630
In accordance with Executive Order
12630 (Government Actions and
Interference with Constitutionally
Protected Private Property Rights), we
will analyze the potential takings
implications of designating critical
habitat for Gierisch mallow in a takings
implications assessment. Critical habitat
designation does not affect landowner
actions that do not require Federal
funding or permits, nor does it preclude
development of habitat conservation
programs or issuance of incidental take
permits to permit actions that do require
Federal funding or permits to go
forward.
Federalism—Executive Order 13132
In accordance with Executive Order
13132 (Federalism), this proposed rule
does not have significant Federalism
effects. A Federalism summary impact
statement is not required. In keeping
with Department of the Interior and
Department of Commerce policy, we
requested information from, and
coordinated development of, this
proposed critical habitat designation
with appropriate State resource agencies
in Arizona and Utah. The designation of
critical habitat in areas currently
occupied by the Gierisch mallow
imposes no additional restrictions to
those currently in place and, therefore,
has little incremental impact on State
and local governments and their
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activities. The designation may have
some benefit to these governments
because the areas that contain the
physical or biological features essential
to the conservation of the species are
more clearly defined, and the elements
of the features of the habitat necessary
to the conservation of the species are
specifically identified. This information
does not alter where and what federally
sponsored activities may occur.
However, it may assist local
governments in long-range planning
(rather than having them wait for caseby-case section 7 consultations to
occur).
Where State and local governments
require approval or authorization from a
Federal agency for actions that may
affect critical habitat, consultation
under section 7(a)(2) would be required.
While non-Federal entities that receive
Federal funding, assistance, or permits,
or that otherwise require approval or
authorization from a Federal agency for
an action, may be indirectly impacted
by the designation of critical habitat, the
legally binding duty to avoid
destruction or adverse modification of
critical habitat rests squarely on the
Federal agency.
Civil Justice Reform—Executive Order
12988
In accordance with Executive Order
12988 (Civil Justice Reform), the Office
of the Solicitor has determined that the
rule does not unduly burden the judicial
system and that it meets the
requirements of sections 3(a) and 3(b)(2)
of the Order. We have proposed
designating critical habitat in
accordance with the provisions of the
Act. This proposed rule uses standard
mapping technology and identifies the
elements of physical or biological
features essential to the conservation of
the Gierisch mallow within the
designated areas to assist the public in
understanding the habitat needs of the
species.
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Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.)
This rule does not contain any new
collections of information that require
approval by OMB under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.). This rule will not impose
recordkeeping or reporting requirements
on State or local governments,
individuals, businesses, or
organizations. An agency may not
conduct or sponsor, and a person is not
required to respond to, a collection of
information unless it displays a
currently valid OMB control number.
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National Environmental Policy Act (42
U.S.C. 4321 et seq.)
Government-to-Government
Relationship With Tribes
We have determined that
environmental assessments and
environmental impact statements, as
defined under the authority of the
National Environmental Policy Act
(NEPA; 42 U.S.C. 4321 et seq.), need not
be prepared Species Act. We published
a notice outlining our reasons for this
determination in the Federal Register
on October 25, 1983 (48 FR 49244).
It is our position that, outside the
jurisdiction of the U.S. Court of Appeals
for the Tenth Circuit, we do not need to
prepare environmental analyses
pursuant to NEPA in connection with
designating critical habitat under the
Act. We published a notice outlining
our reasons for this determination in the
Federal Register on October 25, 1983
(48 FR 49244). This position was upheld
by the U.S. Court of Appeals for the
Ninth Circuit (Douglas County v.
Babbitt, 48 F.3d 1495 (9th Cir. 1995),
cert. denied 516 U.S. 1042 (1996)).
However, when the range of the species
includes States within the Tenth
Circuit, such as that of Gierisch mallow,
under the Tenth Circuit ruling in Catron
County Board of Commissioners v. U.S.
Fish and Wildlife Service, 75 F.3d 1429
(10th Cir. 1996), we will undertake a
NEPA analysis for critical habitat
designation and notify the public of the
availability of the draft environmental
assessment for this proposal when it is
finished.
In accordance with the President’s
memorandum of April 29, 1994
(Government-to-Government Relations
with Native American Tribal
Governments; 59 FR 22951), Executive
Order 13175 (Consultation and
Coordination with Indian Tribal
Governments), and the Department of
the Interior’s manual at 512 DM 2, we
readily acknowledge our responsibility
to communicate meaningfully with
recognized Federal Tribes on a
government-to-government basis. In
accordance with Secretarial Order 3206
of June 5, 1997 (American Indian Tribal
Rights, Federal-Tribal Trust
Responsibilities, and the Endangered
Species Act), we readily acknowledge
our responsibilities to work directly
with tribes in developing programs for
healthy ecosystems, to acknowledge that
tribal lands are not subject to the same
controls as Federal public lands, to
remain sensitive to Indian culture, and
to make information available to tribes.
We determined that there are no tribal
lands that are occupied by the Gierisch
mallow that contain the features
essential for conservation of the species,
and no tribal lands unoccupied by the
Gierisch mallow that are essential for
the conservation of the species.
Therefore, we are not proposing to
designate critical habitat for the Gierisch
mallow on tribal lands.
Clarity of the Rule
A complete list of references cited in
this rulemaking is available on the
Internet at https://www.regulations.gov at
Docket No. FWS–R2–ES–2012–0049 and
upon request from the Arizona
Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
We are required by Executive Orders
12866 and 12988 and by the
Presidential Memorandum of June 1,
1998, to write all rules in plain
language. This means that each rule we
publish must:
(1) Be logically organized,
(2) Use the active voice to address
readers directly,
(3) Use clear language rather than
jargon,
(4) Be divided into short sections and
sentences, and
(5) Use lists and tables wherever
possible.
If you feel that we have not met these
requirements, send us comments by one
of the methods listed in the ADDRESSES
section. To better help us revise the
rule, your comments should be as
specific as possible. For example, you
should tell us the numbers of the
sections or paragraphs that are unclearly
written, which sections or sentences are
too long, the sections where you feel
lists or tables would be useful, etc.
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References Cited
Authors
The primary authors of this package
are the staff members of the Arizona
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend
part 17, subchapter B of chapter I, title
50 of the Code of Federal Regulations,
as set forth below:
PART 17—[AMENDED]
1. The authority citation for part 17
continues to read as follows:
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Authority: 16 U.S.C. 1361–1407; 16 U.S.C.
1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–
625, 100 Stat. 3500; unless otherwise noted.
§ 17.12
List of Endangered and Threatened
Plants in alphabetical order under
‘‘Flowering Plants.’’
*
2. Amend § 17.12(h) by adding an
entry for ‘‘Sphaeralcea gierischii’’ to the
Species
Common name
Historic
range
*
Gierisch mallow .......
Scientific name
*
U.S.A (AZ, UT) ........
Family
Endangered and threatened plants.
*
*
(h) * * *
*
When
listed
Status
*
Critical
habitat
Special
rules
FLOWERING PLANTS
*
Sphaeralcea
gierischii.
*
*
*
3. In § 17.96, amend paragraph (a) by
adding an entry for ‘‘Sphaeralcea
gierischii (Gierisch mallow),’’ in
alphabetical order under the family
Malvaceae, to read as follows:
§ 17.96
Critical habitat—plants.
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(a) Flowering plants.
*
*
*
*
*
Family Malvaceae: Sphaeralcea
gierischii (Gierisch mallow)
(1) Critical habitat units are depicted
for Washington County, Utah, and
Mohave County, Arizona, on the maps
below.
(2) Within these areas, the primary
constituent elements of the physical or
biological features essential to the
conservation of Gierisch mallow consist
of the following components:
(i) Appropriate geological layers or
gypsiferous soils, in the Harrisburg
Member of the Kaibab Formation, that
support individual Gierisch mallow
plants or their habitat, within the
elevation range of 775 to 1,148 m (2,477
to 3,766 ft). Appropriate soils are
defined as:
(A) Badland,
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*
*
Malvaceae ............... E
*
*
(B) Fluvaquents and Torrifluvents,
(C) Riverwash,
(D) Cave-Harrisburg-Grapevine
complex,
(E) Grapevine-Hobcan complex,
(F) Nikey-Ruesh complex,
(G) Gypill-Hobog complex,
(H) Hobog-Tidwell complex,
(I) Hobog-Grapevine complex,
(J) Grapevine-Shelly complex, and
(K) Hindu-Rock outcrop-Gypill
complex.
(ii) Appropriate Mojave desert scrub
plant community and associated native
species for the soil types at the sites
listed in paragraph (2)(i) of this entry.
(iii) The presence of insect visitors or
pollinators, such as the globemallow bee
and other solitary bees. To ensure the
proper suite of pollinators are present,
this includes habitat that provides
nesting substrate for pollinators in the
areas described in paragraph (2)(ii) of
this entry.
(iv) Areas free of disturbance and
areas with low densities or absence of
nonnative, invasive plants, such as red
brome and cheatgrass.
(3) Critical habitat does not include
manmade structures (such as buildings,
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*
....................
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*
*
17.96(a)
NA
*
aqueducts, runways, roads, and other
paved areas) and the land on which they
are located existing within the legal
boundaries on the effective date of this
rule.
(4) Critical habitat map units. Data
layers defining map units were created
using Albers Equal Area (Albers) North
American Datum 83 (NAD 83)
coordinates. The maps in this entry, as
modified by any accompanying
regulatory text, establish the boundaries
of the critical habitat designation. The
coordinates or plot points or both on
which each map is based are available
to the public at the Service’s Internet
site (https://www.fws.gov/southwest/es/
Arizona/), Regulations.gov (https://
www.regulations.gov), at Docket No.
FWS–R2–ES–2012–0049, and at the
field office responsible for this
designation. You may obtain field office
location information by contacting one
of the Service regional offices, the
addresses of which are listed at 50 CFR
2.2.
(5) Index map follows:
BILLING CODE 4310–55–P
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(6) Unit 1: Starvation Point Unit,
Mohave County, Arizona, and
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Washington County, Utah. Map of Units
1 and 2 follows:
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is provided at paragraph (6) of this
entry.
*
*
*
*
*
Dated: August 6, 2012.
Eileen Sobeck,
Acting Assistant Secretary for Fish and
Wildlife and Parks.
[FR Doc. 2012–20086 Filed 8–16–12; 8:45 am]
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[Federal Register Volume 77, Number 160 (Friday, August 17, 2012)]
[Proposed Rules]
[Pages 49893-49919]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-20086]
[[Page 49893]]
Vol. 77
Friday,
No. 160
August 17, 2012
Part III
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; Determination of Status
for the Gierisch Mallow and Designation of Critical Habitat; Proposed
Rule
Federal Register / Vol. 77, No. 160 / Friday, August 17, 2012 /
Proposed Rules
[[Page 49894]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2012-0049; 4500030113]
RIN 1018-AY58
Endangered and Threatened Wildlife and Plants; Determination of
Status for the Gierisch Mallow and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to list as
endangered the Gierisch mallow and propose critical habitat for the
species under the Endangered Species Act. This action is being taken as
the result of a court-approved settlement agreement. These are proposed
regulations, and if finalized, the effect of these regulations will be
to add the species to the List of Endangered or Threatened Plants and
to designate critical habitat under the Endangered Species Act.
DATES: We will accept comments received or postmarked on or before
October 16, 2012. We must receive requests for public hearings, in
writing, at the address shown in FOR FURTHER INFORMATION CONTACT by
October 1, 2012.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov and search for Docket No. FWS-R2-ES-2012-0049,
which is the docket number for this rulemaking. Then, in the Search
panel on the left side of the screen, under the Document Type heading,
click on the Proposed Rules link to locate this document. You may
submit a comment by clicking on ``Comment Now!.''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R2-ES-2012-0049; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
The coordinates, or plot points, or both from which the critical
habitat maps are generated are included in the administrative record
for this rulemaking and are available at (https://www.fws.gov/southwest/es/arizona/), https://www.regulations.gov at Docket No. FWS-R2-ES-2012-
0049, and at the Arizona Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT). Any additional tools or supporting
information that we may develop for this rulemaking will also be
available at the Fish and Wildlife Service Web site and Field Office
set out above, and may also be included in the preamble and/or at
https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, U.S.
Fish and Wildlife Service, Arizona Ecological Services Field Office,
2321 West Royal Palm Road, Suite 103, Phoenix, AZ 85021; by telephone
(602) 242-0210; or by facsimile (602) 242-2513. Persons who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
This document consists of a proposed rule to list as endangered
Sphaeralcea gierischii (Gierisch mallow) and to designate critical
habitat for Gierisch mallow. In this proposed rule, we will refer to
Sphaeralcea gierischii as Gierisch mallow.
Why we need to publish a rule. Under the Endangered Species Act, a
species may warrant protection through listing if it is endangered or
threatened throughout all or a significant portion of its range. In
this proposal, we are explaining why Gierisch mallow warrants
protection under the Endangered Species Act. This rule proposes to list
the Gierisch mallow as endangered throughout its range in Mohave
County, Arizona, and Washington County, Utah, and proposes to designate
critical habitat for the species. In total, approximately 5,189
hectares (ha) (12,822 acres (ac)) are proposed for designation as
critical habitat in both Arizona and Utah.
The Endangered Species Act provides the basis for our action. Under
the Endangered Species Act, we can determine that a species is
endangered or threatened based on any of 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. Factors supporting the
proposed endangered status for Gierisch mallow include:
Habitat loss and degradation of appropriate gypsum soils
as a result of mining operations and recreation activities, including
off-highway vehicle (OHV) use, target shooting, and trash dumping;
Inadequate existing regulatory mechanisms that allow
significant habitat-based impacts, such as regulations governing mining
operations;
The spread of nonnative, invasive plant species such as
Bromus tectorum (cheatgrass) and B. rubens (red brome) that can alter
native vegetation and promote conditions that support wildfires; and
Other natural or manmade factors, including the small
population size of Gierisch mallow, natural environmental variability,
and climate conditions, such as sustained drought.
This rule proposes designation of critical habitat for Gierisch
mallow. Under the Endangered Species Act, we designate specific areas
as critical habitat to foster conservation of listed species. Future
actions funded, permitted, or otherwise carried out by Federal agencies
will be reviewed to ensure they do not adversely modify critical
habitat. Critical habitat does not affect private actions on private
lands absent Federal funding. We are proposing the following areas as
critical habitat for Gierisch mallow:
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Federal State
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Critical habitat unit Arizona Utah Arizona Totals
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Unit 1. Starvation Point........ 0................. 1,022 ha (2,526 316 ha (782 ac)... 1,339 ha (3,309
ac). ac).
Unit 2. Black Knolls............ 3,586 ha (8,862 0................. 263 ha (651 ac)... 3,850 ha (9,513
ac). ac).
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Totals...................... 3,586 ha (8,862 1,022 ha (2,526 580 ac (1,434 ac). 5,189 ha (12,822
ac). ac). ac).
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[[Page 49895]]
We are preparing an economic analysis. To ensure that we consider
the economic impacts of designating critical habitat, we are preparing
an economic analysis of the proposed critical habitat designation. We
will publish an announcement and seek public comments on the draft
economic analysis when it is completed.
We will request peer review of the methods used in our proposal. We
will specifically request that several knowledgeable individuals with
scientific expertise in this species or related fields review the
scientific information and methods that we used in developing this
proposal.
We are seeking public comment on this proposed rule. Anyone is
welcome to comment on our proposal or provide additional information on
the proposal that we can use in making a final determination on the
status of this species. Please submit your comments and materials
concerning this proposed rule by one of the methods listed in the
ADDRESSES section. Within 1 year following the publication of this
proposal, we will publish in the Federal Register a final determination
concerning the listing of the species and the designation of its
critical habitat or withdraw the proposal if new information is
provided that supports that decision.
Public Comments
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned governmental agencies,
Native American tribes, the scientific community, industry, or any
other interested parties concerning this proposed rule. We particularly
seek comments concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and regulations that may
be addressing those threats.
(2) Additional information concerning the historical and current
status, range, distribution, and population size of this species,
including the locations of any additional populations of this species.
(3) Any information on the biological or ecological requirements of
the species and ongoing conservation measures for the species and its
habitat.
(4) Current or planned activities in the areas occupied by the
species and possible impacts of these activities on this species.
(5) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Endangered Species Act of
1973, as amended (Act) (16 U.S.C. 1531 et seq.) including whether there
are threats to the species from human activity, the degree of which can
be expected to increase due to the designation, and whether that
increase in threat outweighs the benefit of designation such that the
designation of critical habitat may not be prudent.
(6) Specific information on:
(a) The amount and distribution of Gierisch mallow habitat;
(b) What areas, that were occupied at the time of listing (or are
currently occupied) and that contain features essential to the
conservation of the species, should be included in the designation and
why;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential
for the conservation of the species and why.
(7) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(8) Information on the projected and reasonably likely impacts of
climate change on the Gierisch mallow and proposed critical habitat.
(9) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation; in particular, we seek information on any impacts on small
entities or families, and the benefits of including or excluding areas
that exhibit these impacts.
(10) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act, in particular for those areas that are
currently being mined for gypsum or proposed to be mined for gypsum in
the foreseeable future.
(11) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is a threatened or endangered
species must be made ``solely on the basis of the best scientific and
commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We request
that you send comments only by the methods described in the ADDRESSES
section.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the Web site. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Please include sufficient information with your comments to allow us to
verify any scientific or commercial information you include.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Arizona Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Previous Federal Actions
The Gierisch mallow was included in the June 25, 2007, petition by
WildEarth Guardians to the Service seeking the listing of 475 species
in the southwestern United States. Based on information we received in
that petition and information readily available in the Service's files,
the Service added Gierisch mallow as a candidate for listing in the
December 10, 2008, Candidate Notice of Review (73 FR 75176). Species on
the candidate list are those fish, wildlife, and plants for which we
have sufficient information on biological vulnerability and threats to
support the preparation of a listing proposal, but for which
development of a listing regulation is precluded by other higher
listing priorities. Since 2008, the listing priority number for
Gierisch mallow has been a 2, indicating a species with threats that
are both imminent and high in magnitude in accordance with our priority
guidance published on September 21, 1983 (48 FR
[[Page 49896]]
43098). Gierisch mallow has remained a candidate in subsequent
Candidate Notices of Reviews (74 FR 57804, November 9, 2009; 75 FR
69222, November 10, 2010; 76 FR 66370, October 26, 2011).
Background
It is our intent to discuss below only those topics directly
relevant to the proposed listing of the Gierisch mallow as endangered
and the proposed critical habitat designation.
Species Information
Gierisch mallow is a perennial, flowering member of the mallow
family. It produces few to many stems from a woody caudex (short,
thickened, woody stem that is usually subterranean or at ground level).
The stems are 43 to 103 centimeters (cm) (17 to 41 inches (in)) tall,
and are often dark red-purple. The foliage is bright green and glabrous
(not hairy). The leaf blades are 1.2 to 4 centimeters (cm) (0.47 to
1.57 inches (in)) long; 1 to 5 cm (0.4 to 1.9 in) wide; and usually
longer than wide. The leaves are usually flat and egg-shaped; the leaf
base is heart-shaped to truncate, with 3 to 5 lobes. The inflorescence
is compound, with more than one flower per node. The outer envelope of
the flower is 0.5 to 1.0 cm (0.2 to 0.4 in) long, green, and uniformly
glabrous, and the orange petals are 1.5 to 2.5 cm (0.6 to 0.98 in) long
(Atwood and Welsh 2002, p. 161).
Gierisch mallow was named as a unique, distinct species in 2002
(Atwood and Welsh 2002, p. 159). This species of mallow is
distinguished from similar species, such as Sphaeralcea rusbyi (Rusby's
globemallow), by the glabrous (smooth) foliage, few or no stellate
(star-shaped) hairs restricted to the leaf margins, larger flowers, and
restricted range and habitat.
Another closely related species is S. moorei (Moore's globemallow);
distinguishing characters are the 3 to 5-parted narrow lobes, bright
green leaves, and different habitat. As discussed by Atwood and Welsh
(2002, p. 159), the genus Sphaeralcea consists of taxa whose
morphological distinctions are compromised by overlap of many
characters. The characteristics of the mature fruiting carpels (seed-
bearing structures) are one of the more important distinguishing
characters, but specimens were rarely collected with mature carpels.
Atwood and Welsh (2002, pp. 161-163) collected globemallow species in
northern Arizona and southern Utah, and reviewed previous collections.
The characteristics described in their 2002 taxonomic key allow for the
discrimination of the related and similar taxa known to occur in
southern Utah and adjacent northern Arizona, thus making Gierisch
mallow a species and, therefore, a listable entity under the Act. The
work was published in the peer-reviewed journal Novon, which publishes
short articles with the primary purpose of the establishment of
nomenclature (scientific naming) of vascular plants. Dr. Atwood and Dr.
Welsh are very familiar with the flora of Utah; Dr. Atwood is the
Collections Manager of the S. L. Welsh Herbarium, and Dr. Welsh is
Emeritus Curator of Vascular Plants at Brigham Young University, Utah.
After careful review of the 2002 Atwood and Welsh publication and its
recognition by the Integrated Taxonomic Information System (ITIS 2012)
and its inclusion in the Utah Rare Plant Guide (Utah Rare Plants 2012),
it is our conclusion that Gierisch mallow is a valid species because
the characteristics described above can be used to distinguish this
species from similar species. We also consider it a separate species
due to its acceptance in peer-reviewed literature and recognition by
taxonomic authorities, as described above.
Biology, Habitat, and the Current Range
Gierisch mallow is only found on gypsum outcrops associated with
the Harrisburg Member of the Kaibab Formation in northern Mohave
County, Arizona, and adjacent Washington County, Utah (Atwood and Welsh
2002, p. 161). The Harrisburg Member is the most recent (topmost)
exposed geologic layer of the Kaibab Formation. The Harrisburg Member
is known for its soils containing high levels of gypsum (gypsiferous
soils) (Biek and Hayden 2007, p. 58). The Kaibab Formation comprises a
continuous layer of exposed limestone rock in the Grand Canyon region
(USGS 2012, p. 1). The surrounding plant community is warm desertscrub
(Mojave desertscrub). Very little is known about the life history of
the Gierisch mallow, as it was only recently described. The species may
be perennial because it is woody at the base and the same individuals
have been observed for more than one year. It dies back to the ground
during the winter and re-sprouts from the base during late winter and
spring (January to March), depending on daytime temperatures and
rainfall. Information from the Bureau of Land Management (BLM)
indicates that many of the Gierisch mallow populations occur on
hillsides or steep slopes. The pollination system (self-pollinated or
obligate out-crosser), seed dispersal mechanisms, and the conditions
under which seeds germinate are not known. Although we do not know how
the species is pollinated, other species of the genus Sphaeralcea
(globemallows) are pollinated by Diadasia diminuta (globemallow bee),
which specializes in pollinating plants of this genus. Globemallow bees
are considered important pollinators for globemallows (Tepedino 2010,
p. 2). These solitary bees, as well as other Diadasia species, are
known to occur within the range of the Gierisch mallow (Sipes and
Tepedino 2005, pp. 490-491; Sipes and Wolf 2001, pp. 146-147), so it is
reasonable to assume that they are potential pollinators of Gierisch
mallow and other associated vegetation in the surrounding community.
Winter rainfall in 2008 produced many seedlings of Gierisch mallow,
indicating that they grow from seeds stored in the seed bank (Hughes
2009, p. 13). Higher densities of seedlings were located within known
locations in Arizona and Utah after these winter rain events.
Additionally, young plants have been observed on two reclaimed areas
within an active gypsum mine (Service 2008a, p. 1), further indicating
that seeds are stored in the seed bank; however, we do not know the
long-term viability of these plants due to the disruption of the
original soil composition. Furthermore, Hughes (2011, p. 7) has
documented a decline in the numbers of plants in both of the two
reclaimed areas over the last 5 years.
We have no information on the historical range of this species
because it is a newly discovered plant. Currently, there are 18 known
populations of the Gierisch mallow restricted to less than
approximately 186 ha (460 ac) in Arizona and Utah. The main populations
in Arizona are located south of the Black Knolls, approximately 19.3 km
(12 mi) southwest of St. George, Utah, with the southernmost population
of this group being on the edge of Black Rock Gulch near Mokaac
Mountain. There is another population approximately 4.8 kilometers (km)
(3 miles (mi)) north of the Black Knolls, on Arizona State Land
Department (ASLD) lands near the Arizona/Utah State line. The Utah
population is located on BLM lands within 3.2 km (2 mi) of the Arizona/
Utah State line, near the Arizona population on ASLD land.
There are no other known populations of the Gierisch mallow. We
theorized that, because gypsum outcrops associated with the Harrisburg
Member are scattered throughout BLM lands in northern Arizona and
southern Utah, additional populations may exist. Dr. Atwood and Dr.
Welsh conducted
[[Page 49897]]
extensive surveys in these areas because numerous other rare plant
species are associated with these landforms (Atwood 2008, p. 1). One
record of a Gierisch mallow from the Grand Canyon-Parashant National
Monument was presented to us (Fertig 2012, p. 3); however, after
careful scrutiny, Johnson and Atwood (2012, p. 1) determined that this
record is actually Rusby's mallow and not Gierisch mallow.
Status and Population Estimates
Atwood (2008, p. 1), and later Hughes (Service 2008a, p. 1),
estimated the population size of the Gierisch mallow from four of the
Arizona locations. These populations are referred to as ``Hills.''
There are a total of 18 populations rangewide, with seventeen
populations on lands managed by the BLM, and 1 on lands managed by the
ASLD. Seventeen populations occur in Arizona, and one occurs in Utah.
Atwood and Hughes' population estimates were simple visual
estimates and have only been conducted for four of the 17 populations.
These estimates are presented in Table 1 for the areas surveyed in
Arizona. Hughes (2012, pp. 12-14) established belt transects on four of
the ``Hills'' (Hills 1, 2, 4, and 5) and began to count the number of
individuals. There is a population on Hill 3, but there are no
estimates for it. Data in Table 1 are from files in BLM's St. George
Field Office and the Service's Arizona Ecological Services Field
Office. The actual transect counts appear in Table 1 in bold, in
parentheses. Surveys estimate total population size to be between 7,000
and 12,000 individuals in Arizona.
Table 1--Population Numbers for Gierisch Mallow From Four Locations in Arizona
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Site Numbers 2001 Numbers 2003 Numbers 2007 Numbers 2008 Numbers 2009 Numbers 2010 Numbers 2011
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Hill 1 (BLM)................. 150+ (100)...... 50 (30)......... (58)............ No data......... 300 (155)...... 200 (85)....... *
Hill 2 (BLM)................. 150+ (100)...... 40 (31)......... (15)............ 50 (37)......... 40 (23)........ No data........ *
Hill 4 (BLM)................. No data......... 5,000-9,000 (176)........... (65)............ No estimate No estimate No estimate
(180). (108). (170). (136)
Hill 5 (ASLD)................ No data......... 2,000-3,000 No data......... No data......... No data........ No data........ No data
(115).
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* These sites were visited in 2011, and Gierisch mallow plants were observed; however, no data were collected.
Total population size in Utah was estimated to be approximately 200
individuals in 2005 (Franklin 2007, p. 1). In spring 2008 and 2009,
Hughes (2008a, p. 12; Hughes 2009, p. 15) conducted more extensive
surveys of gypsiferous soils in Utah and estimated the population to be
between 5,000 and 8,000 individuals. The Service plant ecologist and
staff from the BLM's Arizona Strip Field Office visited all of the
known locations in February 2008 (Service 2008a, p. 1). Population
estimates were not made at this time because the plants were just
emerging from winter dormancy, but there were plants present at all of
the known locations visited.
Since surveys began, no new populations have been found outside of
the known areas. In addition to the information provided in Table 1,
Hughes (2008a, p. 12) reported counts for transects on two
rehabilitated sites within the Western Mining and Minerals, Inc.,
gypsum operation on and near Hill 4, where 85 and 60 plants were
counted on the two transects in 2008. These plants are reestablishing
themselves in the reclaimed areas from the original seed bank. Hughes
(2009, p. 14) counted 50 and 32 plants on these sites in 2009. In 2011,
Hughes (2012, p. 7) completed transect surveys on the same reclaimed
sites as he did in 2008 and 2009, and counted 67 plants on one
rehabilitated site and 1 plant on the other rehabilitated site. We do
not have any information to indicate why there was a substantial
decrease in plant numbers at these reclaimed areas. Because the
Gierisch mallow it mostly only found in gypsiferous soils, it is
possible that they are declining due to disruption of the original soil
composition in these reclaimed soils. Outside of the reclaimed areas,
some populations of the Gierisch mallow appear to be fluctuating
annually according to data provided by Hughes (2011, pp. 4-7). Some
populations appear to be decreasing, others have shown slight
increases, and some populations have remained stable (Hughes 2011, pp.
4-7).
Summary of Factors Affecting the Species
Section 4 of the Act (16 U.S.C. 1533), and its implementing
regulations at 50 CFR part 424, set forth the procedures for adding
species to the Federal Lists of Endangered and Threatened Wildlife and
Plants. Under section 4(a)(1) of the Act, we may list a species based
on 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; and (E) other natural or manmade
factors affecting its continued existence. Listing actions may be
warranted based on any of the above threat factors, singly or in
combination. Each of these factors is discussed below.
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
Because the Gierisch mallow has a limited range and distribution,
including being found in a specific soil composition (gypsum outcrops),
it is highly susceptible to habitat destruction and modification.
Specifically, habitat destruction or modification resulting from mining
operations, recreational activities, and wildfires associated with the
spread of nonnative grass species, are threats to the Gierisch mallow.
Mining
Gypsum mining is an ongoing source of habitat modification for the
Gierisch mallow in Arizona. Gypsum is used in construction (including
the manufacturing of drywall), and for a variety of agricultural
purposes. Gypsum deposits are found at various depths within the
Harrisburg Member. Many of the most valuable gypsum deposits are not at
ground level. This means that surface materials need to be removed and
stockpiled, while the subsurface gypsum is mined. The stockpiled
surface material is then used to reclaim the area after the gypsum has
been removed. Because all the topsoil is temporarily removed, gypsum
mining temporarily removes the plant's habitat and any plants growing
in the affected area. Although the topsoil is replaced, the original
soil composition is altered; therefore, the reclaimed soils do not
contain the original gypsum
[[Page 49898]]
composition with which the plants are associated.
There is an existing gypsum mining operation (Black Rock Gypsum
Mine) on BLM land affecting the Hill 4 population, the largest
population in Arizona (Hughes 2009, p. 13). The plants in the Hill 4
area are not restricted to one hill, but are scattered among several
smaller hills that all contain gypsum outcrops. One of the larger
deposits is currently being mined. A large amount of soil has been
removed, but we cannot quantify how much of the habitat this comprises
at this site, as we do not have access to ASLD lands. Based on prior
monitoring before access was limited (Hughes 2008, p. 13), there are
other small hills within the footprint of the mining claim that support
the Gierisch mallow; therefore, we assume the Gierisch mallow occupied
the disturbed area. Western Mining and Minerals, Inc., the mine
operator, has inquired about expanding the current operation (Service
2008a, p. 1). The area they propose to expand into currently supports
the largest portion of the Hill 4 population, estimated to be between
5,000 and 9,000 plants (Hughes 2008, p. 14), which comprises almost
half of the entire population rangewide and most of the population in
Arizona. The proposed expansion would remove the entire population and
its habitat on Hill 4. An environmental assessment (under the National
Environmental Policy Act 40, 42 U.S.C. 4321 et seq.) for expansion of
the quarrying activities within the Black Rock Gypsum Mine has been
completed, and the Mining Plan of Operation has been approved (BLM
2008a). Because the demand for gypsum has declined along with the
decrease in the housing market, mining activity has not yet reached the
expansion area (Cox 2011a, pers. comm.). Recent discussions with the
BLM indicate that the expansion could happen as soon as 3 years from
now or may take up to 10 years, depending on the housing market, but
BLM believes the expansion is very likely to happen (Cox 2011a, pers.
comm.).
There is another gypsum mine, located near Hill 5, supporting
another large Arizona population (approximately 2,000-3,000 plants).
This mine, operated by Georgia-Pacific, is on ASLD lands and
encompasses 178 ha (440 ac). Service biologists did not receive
permission to enter the site in February 2008, but, through the site
boundary fence, did notice at least one pile of spoils near the
population, indicating some recent surface-modifying activity prior to
the Service biologists' visit. The lease was first issued in 2006, but
Georgia-Pacific has not mined anything, due to the slowing of the
economy. The surface-modifying activity observed in February 2008 was
likely a result of moving topsoil in preparation to begin mining
activities (Dixon 2011, p. 1). Because the lease is for 20 years, we
expect that mining operations will begin at some point within the next
14 years, or when the housing market improves. We presume that habitat
for the species would be affected by the operation because the
technique for gypsum mining necessarily involves removal of the
topsoil, eliminating, at least temporarily, the species' ability to
survive there. There are no known protection measures for Gierisch
mallow or its habitat within the lease on State trust lands.
In addition to the Georgia-Pacific mine, there are several ASLD-
issued exploration permits in the area on ASLD lands surrounding Hill
5. These are all relatively new claims, and no significant work has
been done on them, yet some drilling was completed, but no other
exploration or mining work has occurred. With the depressed housing
market, the ASLD does not anticipate any gypsum mining will occur until
the housing market improves (Dixon 2011, p. 1).
Gypsum mining is a threat to this species and its habitat. The
mining operation removes plants and habitat for the duration of the
mining activities, and, post-mining, the reclaimed areas may or may not
be capable of supporting the plants. A few Gierisch mallows were seen
on reclaimed areas near Hill 4, but no information on the density of
plants before the disturbance exists. Plants continue to be observed in
two reclaimed areas near Hill 4; however, the numbers are relatively
low (Hughes 2012, pp. 6-7). Furthermore, it is unknown if restored
areas will support the plants sufficiently to restore populations to
pre-mining levels; restoration efforts with this species are currently
being planned within the Black Rock Mine to assess the feasibility of
seeding reclaimed areas with Gierisch mallow (Service 2008b, p. 1).
We conclude that the ongoing and future gypsum mining activities,
as authorized by the BLM and the ASLD, are a significant threat to this
species. Although there has been no mining activity on ASLD lands since
2007, the Service believes this inactivity is temporary and that mining
will resume when the housing market improves in the future. There will
be a significant reduction in the number of individuals of the species
when the Western Mining and Minerals Inc., operation (Black Rock Gypsum
Mine) expands, and when mining activities resume at the Georgia-Pacific
mine on lands managed by the ASLD. Although Hills 4 and 5 comprise only
2 of the 18 populations, over half of all the known Gierisch mallow
plants are in these two areas. That would leave the other Arizona
locations and the one Utah population, and those areas support fewer
plants. The loss of suitable habitat at Hills 4 and 5 has resulted in
the loss of more than 50 percent of the existing populations. The
Service believes this would result in a compromise to the long-term
viability of the species, due to reduced reproductive potential and
fragmentation. The limited distribution of this species, the small
number of populations, the limited amount of habitat, and the species'
occurrence only in areas that support high-quality gypsum deposits lead
us to conclude that mining is a significant threat to the species.
Grazing
In general, grazing practices can change vegetation composition and
abundance, cause soil erosion and compaction, reduce water infiltration
rates, and increase runoff (Klemmedson 1956, p. 137; Ellison 1960, p.
24; Arndt and Rose 1966, p. 170; Gifford and Hawkins 1978, p. 305;
Robinson and Bolen 1989, p. 186; Waser and Price 1981, p. 407; Holechek
et al. 1998, pp. 191-195, 216; and Loftin et al. 2000, pp. 57-58),
leaving less water available for plant production (Dadkah and Gifford
1980, p. 979). Fleischner (1994, pp. 630-631) summarized the ecological
impacts of grazing in three categories: (1) Alteration of species
composition of communities, including decreases in density and biomass
of individual species, reduction of species richness, and changing
community organization; (2) disruption of ecosystem functioning,
including interference in nutrient cycling and ecological succession;
and (3) alteration of ecosystem structure, including changing
vegetation stratification, contributing to soil erosion, and decreasing
availability of water to biotic communities.
Grazing occurs in most populations of the Gierisch mallow in
Arizona and Utah on both BLM and ASLD lands. Grazing is excluded from
both the Black Rock Gypsum Mine on BLM land and the Georgia-Pacific
Mine on ASLD land. Gierisch mallow populations occur on three BLM
grazing allotments in Arizona and one allotment in Utah. In Arizona,
the Black Rock, Lambing-Starvation, and Purgatory allotments all
contain populations of Gierisch mallow. The Black Rock Allotment
encompasses 15,250 ha (37,685 ac) that are grazed year-round, but this
allotment is on a
[[Page 49899]]
deferred grazing system, which means that pasture use is rotated so
that each pasture receives a set amount of rest (non-use) every year.
As previously stated, there are an additional 1,152 ha (2,846 ac) in
this allotment that are unavailable for grazing because of the Black
Rock Gypsum Mine. Gierisch mallow occurs in both the ``Lizard 1'' and
``Lizard 2'' pastures within this allotment, and both pastures are
typically used in the spring to allow the livestock to utilize
cheatgrass when it is still green. These two pastures are typically
rotated, that is used every other year so that one pasture receives a
full year of rest.
The Lambing-Starvation Allotment encompasses 5,446 ha (13,457 ac)
that are grazed from November 16 through May 15 every season and is
also on a deferred system. Gierisch mallow occurs in two of the three
pastures in this allotment, the North Freeway and South Freeway
pastures. These two pastures are also used in the spring, as the third
pasture is along the Virgin River and contains critical habitat for the
endangered southwestern willow flycatcher (Empidonax traillii extimus).
Because the third pasture contains critical habitat for the
southwestern willow flycatcher, its use is restricted seasonally,
causing livestock to spend more time in the two pastures containing
Gierisch mallow, including during the spring growing season for the
Gierisch mallow. The Lambing-Starvation Allotment also contains ASLD
lands with a grazing lease; however, the BLM oversees the management of
this allotment. The Purgatory Allotment encompasses 1,985 ha (4,905 ac)
in a single pasture that is grazed from December 1 through May 31 every
season. Only a small portion of a Gierisch mallow population occurs
within this allotment. Information from the BLM indicates that many of
the Gierisch mallow populations occur on hillsides or steep slopes, and
livestock do not typically go up to these areas looking for forage
unless it is a dry year (Roaque 2012a, p. 2). All three allotments
contain significant amounts of nonnative, invasive annual grasses,
including cheatgrass and red brome, although red brome appears to be
more prevalent. According to observations by BLM range personnel, both
cheatgrass and red brome tend to not grow well in gypsum outcrops in
normal (dry) rainfall years; however, they can be abundant in Gierisch
mallow habitat during wet years. This was observed after the fall 2010
and winter 2011 rains (Roaque 2102b, p. 1).
In Utah, grazing occurs in the one allotment that contains Gierisch
mallow and its habitat. The Curly Hollow Allotment is comprised of
approximately 9,105 ha (22,500 ac) of BLM land and 2,226 ha (5,500 ac)
of Utah State trust land. This is a four-pasture allotment that is
managed for intensive grazing and a rest rotation system similar to
those described above. Gierisch mallow only occurs in the River
Pasture, which is usually grazed from November 1 through February 28 of
each season. Recent wildfires had burned much of the upper three
pastures; therefore, the River Pasture has been grazed beyond February
28 for several years to alleviate pressure on the three upper pastures
while the vegetation recovered from the wildfire in the absence of
livestock grazing (Douglas 2012a, p. 1). The three upper pastures are
now considered rehabilitated, and grazing in the River Pasture should
resume with its normal season of use from November 1 through February
28. The general condition of the range in the River Pasture is fair to
good (moderate cheatgrass spread); however, portions near Sun River,
and the Astragalus holmgreniorum (Holmgren milkvetch) (an endangered
plant) habitat, have been disturbed in the past, resulting in a more
significant spread of cheatgrass and Malcolmia africana (African
mustard). Livestock utilization on Gierisch mallow has not been
monitored by BLM's St. George Field Office, but conditions are expected
to be similar to livestock utilization described above in Arizona
(Douglas 2012a, p. 1).
In addition to consumption, livestock are known to trample plants.
As noted, livestock do not typically go up into Gierisch mallow habitat
on the BLM allotments in Arizona and Utah due to the steeper hillsides
and slopes that this plant is known to inhabit (Roaque 2012a, p. 2;
Douglas 2012a, p. 1). Given the grazing management described above and
the observations of how infrequently livestock are in Gierisch mallow
habitat, trampling of plants does not likely significantly impact the
overall viability of these populations.
Habitat degradation in the Mojave Desert, through loss of
microbiotic soil crusts (soils containing algae, lichen, fungi, etc.)
due to livestock grazing, is a great concern (Floyd et al. 2003, p.
1704). Grazing can disturb soil crusts and other fundamental physical
factors in landscapes. For example, climatologists and ecologists have
attributed increasing soil surface temperatures and surface
reflectivity in the Sonoran Desert to grazing-related land degradation
(Balling et al. 1998 in Floyd et al. 2003, p. 1704). Biological soil
crusts provide fixed carbon on sparsely vegetated soils. Carbon
contributed by these organisms helps keep plant interspaces fertile and
aids in supporting other microbial populations (Beymer and Klopatek
1991 in Floyd et al. 2003, p. 1704). In desert shrub and grassland
communities that support few nitrogen-fixing plants, biotic crusts can
be the dominant source of nitrogen (Rychert et al. 1978 and others in
Floyd et al. 2003, p. 1704). Additionally, soil crusts stabilize soils,
help to retain moisture, and provide seed-germination sites. Soil
crusts are effective in capturing wind-borne dust deposits, and have
been documented contributing to a 2- to 13-fold increase in nutrients
in southeastern Utah (Reynolds et al. 2001 in Floyd et al. 2003, p.
1704). The presence of soil crusts generally increases the amount and
depth of rainfall infiltration (Loope and Gifford 1972 and others in
Floyd et al. 2003, p. 1704).
In addition to loss of soil crusts, grazing often leads to soil
compaction, which reduces water infiltration and can lead to elevated
soil temperatures (Fleischner 1994, p. 634; Floyd et al. 2003, p.
1704). All of these soil disturbances can increase erosion by both wind
and water (Neff et al. 2005, p. 87). Because Gierisch mallow only
occurs in gypsum soil outcrops, this loss of soil crust, increased soil
compaction, and potential increase in erosion may lead to reduced
fitness of individual plants as nutrients decrease when livestock enter
and concentrate in these areas during dry years. Additionally, it is
possible that individual plants, especially seedlings, are not able to
take root in any unstable soils that result from loss of soil crusts
due to livestock grazing. Increased erosion and decreased water
infiltration from loss of soil crusts can lead to depletion of gypsum
and other specific soil features that the Gierisch mallow requires.
These effects may be significant to Gierisch mallow populations because
grazing occurs at some level throughout all populations. Reduced
fitness of individual plants may lead to reduced overall reproduction,
which may lead to decreases in the overall population.
Grazing can also lead to changes in vegetation structure, including
the proliferation of nonnative, invasive species such as cheatgrass and
red brome. Livestock have been implicated in the spread of weeds
(Brooks 2009, p. 105), and both abundance and diversity of native
plants and animals is lower in grazed areas as compared to ungrazed
habitat in the Mojave Desert (Brooks 2000, p. 105). We do not know the
current density of these two nonnative grass species within the
Gierisch
[[Page 49900]]
mallow populations; however, we do know that both of these nonnative
species are prevalent throughout the Mojave Desert in northwest Arizona
and southwest Utah, including throughout all three allotments in
Arizona and the allotment in Utah (Roaque 2012a, pp. 1-2; Douglas 2012,
p. 1). While cheatgrass and red brome appear not to favor gypsiferous
soils under normal (dry) conditions, they can be abundant in Gierisch
mallow habitat during wet years, as was recently observed (Roaque
2102b, p. 1). Red brome has also been documented in similar gypsiferous
soils near Gierisch mallow populations after wet years (Roth 2012,
entire). The proliferation of cheatgrass and red brome can lead to
competition with Gierisch mallow for both water and nutrients, which
can lead to decreased reproduction and fitness in individual plants.
In addition to decreased reproduction and fitness in established
plants, the spread of these two species can also make the habitat less
suitable for establishment of new plants. If cheatgrass and red brome
reach high densities throughout all of the Gierisch mallow populations,
this can lead to a significant reduction in the proper functioning of
the habitat, which in turn would lead to a reduction in fitness and
reproduction population-wide and an overall population decline. Given
the limited distribution of Gierisch mallow and the known abundance of
cheatgrass and red brome in its habitat, continued proliferation of
these two species into Gierisch mallow habitat is likely to have
significant effects to the species and its habitat. The number of
populations may be reduced and their current limited distribution may
become even more limited. Additionally, the overall resiliency of the
species may be significantly reduced, especially if the spread of these
nonnative grasses leads to other stochastic events, such as wildfire.
Although grazing can help promote the spread of nonnative weeds such as
cheatgrass and red brome, and their spread is a threat to the Gierisch
mallow and its habitat, we do not know how much livestock contribute to
their spread. The threat of wildfire resulting from the spread of
nonnative species will be discussed in more detail in ``Nonnative,
Invasive Species'' below.
In summary, livestock grazing can have many effects on the plant
and its habitat, and on desert ecosystems in general, particularly on
soils. However, livestock do not typically spend much time in Gierisch
mallow habitat, due to the steeper hillsides and slopes that this plant
inhabits, unless drought conditions cause livestock to search for
forage on the steeper hillsides and slopes. When livestock do enter
Gierisch mallow habitat, some limited soil disturbance may occur, and
individual plants may be affected, although we do not anticipate
population-level effects to the Gierisch mallow. Livestock have been
implicated as a mechanism for the spread of cheatgrass and red brome.
Although we do not know the extent to which livestock spread these two
nonnative grasses, the spread of these grasses does pose a threat to
the Gierisch mallow. Because of these potential effects from livestock
grazing, we anticipate grazing to be a moderate threat to the species,
especially during drought years.
Recreation Activities
Mining operations in Utah do not pose a threat to Gierisch mallow
population at this time, but there is evidence of off-road vehicle
(OHV) activity in the area. Several of the smaller hills were criss-
crossed with OHV tracks (Service 2008, p. 1), and these areas are
closed to OHV use off of designated roads and trails (Douglas 2012b, p.
1); therefore, this is considered unauthorized OHV use. Washington
County is projected to be one of the fastest growing counties in Utah,
with a growth rate of 3.9 percent. The population of St. George has
grown from 64,201 (2005) to 88,001 (2010), and is expected to increase
to 136,376 by 2020 (St. George Area Chamber 2010, pp. 2-3). The
surrounding open spaces around St. George are popular for OHV use
because of the relatively flat terrain and ease of access.
Vollmer et al. (1976, p. 121) demonstrated that shrubs exposed to
repeated driving (continued use of the same tracks) were severely
damaged. Both live and dead stems were broken and pressed to the
ground. Stems still standing exhibited broken twigs or shoots and
leaves were dislodged. Damage to about 30 percent of all shrubs
examined in tire tracks were scored at 100 percent damage. Vollmer et
al. (1976, p. 121) go on to state that approximately 54 percent of the
shrubs in the tracks sustained 90 percent or greater damage. The
numbers of annual shrubs growing in regularly driven ruts were lower
than in other areas (Vollmer et al. 1976, p. 124). These data indicate
that individual Gierisch mallow plants may be susceptible to the
effects of OHV use in this area. Plants may be damaged to the point
that they are no longer viable and able to produce seed. Seedlings may
not be able to reach maturity and reproduce if they are crushed to
point of significant damage. As unauthorized OHV use increases in these
areas and associated unauthorized trails proliferate, this population
may experience an overall reduction in fitness for the Gierisch mallow.
In addition to the direct effects to vegetation, unauthorized OHV
use can have the same indirect effects that were previously described
by livestock grazing, including soil compaction, loss of soil crusts,
erosion, and the promotion and spread of nonnative invasive species.
Refer to the livestock grazing discussion above for a complete
description of the effects to soil composition and how those effects
impact Gierisch mallow and its habitat.
In summary, we consider continued unauthorized OHV use (off of
designated roads) to be a potential threat to this species and its
habitat in Utah. Continued unauthorized OHV use can have a significant
effect on the long-term viability of the Utah population of the
Gierisch mallow because habitat degradation can be severe enough to
prevent reestablishment of new plants, as well as removing mature,
reproducing plants from the population. As stated above, Hughes (2009,
p. 14) estimated this population to be between 5,000 and 8,000
individuals in 2009. While this is only one of 18 known populations,
this is the second largest population of the plant and this population
includes almost half of the total population, rangewide. This
population is important to the long-term viability of the species.
Given that this large population only encompasses 1.01 ha (2.5 ac) and
is easily accessible, these activities may lead to enough Gierisch
mallow plants being crushed to reduce the overall fitness of the
population. Therefore, we conclude that this activity is a moderate
threat to the species.
Other Human Effects
The same areas in Utah that are subjected to unauthorized OHV use
are also used for target shooting and trash dumping. Evidence of both
of these activities was present in Utah during the February 2008 visit.
There was one large appliance dumped near the population, obviously
used for target practice (Service 2008a, p. 1). People engaging in
target shooting near the population degrade habitat by trampling the
soil and plants, and by driving vehicles on the habitat to access areas
for target shooting. The unauthorized use of BLM lands for these
activities can contribute to the degradation of habitat for the
Gierisch mallow by causing the same direct and indirect effects
described above for OHV use. It is also possible that trash dumping can
lead to soil contamination, which would most likely not be beneficial
to the species.
[[Page 49901]]
The full extent of damage to soils may not be evident until years or
even decades after the original disturbance (Vollmer et al. 1976, p.
115). We did not observe these activities near the Arizona populations.
Similar to the effects of unauthorized OHV use, we consider illegal
trash dumping and impacts associated with target shooting to be
moderate threats to this species and its habitat in Utah.
Nonnative, Invasive Species
The spread of nonnative, invasive species is considered the second
largest threat to imperiled plants in the United States (Wilcove et al.
1998, p. 608). Invasive plants--specifically exotic annuals--negatively
affect native vegetation, including rare plants. One of the most
substantial effects is the change in vegetation fuel properties that,
in turn, alter fire frequency, intensity, extent, type, and seasonality
(Menakis et al. 2003, pp. 282-283; Brooks et al. 2004, p. 677; McKenzie
et al. 2004, p. 898). Shortened fire return intervals make it difficult
for native plants to reestablish or compete with invasive plants
(D'Antonio and Vitousek 1992, p. 73).
Invasive plants can exclude native plants and alter pollinator
behaviors (D'Antonio and Vitousek 1992, pp. 74-75; DiTomaso 2000, p.
257; Mooney and Cleland 2001, p. 5449; Levine et al.2003, p. 776;
Traveset and Richardson 2006, pp. 211-213). For example, cheatgrass and
red brome outcompete native species for soil nutrients and water
(Melgoza et al. 1990, pp. 9-10; Aguirre and Johnson 1991, pp. 352-353;
Brooks 2000, p. 92), as well as modify the activity of pollinators by
producing different nectar from native species (Levine et al. 2003, p.
776) or introducing nonnative pollinators (Traveset and Richardson
2006, pp. 208-209). Introduction of nonnative pollinators or production
of different nectar can lead to disruption of normal pollinator
interactions for the Gierisch mallow.
Cheatgrass and red brome are particularly problematic nonnative,
invasive annual grasses in the intermountain west. If already present
in the vegetative community, cheatgrass and red brome increase in
abundance after a wildfire, increasing the chance for more frequent
fires (D'Antonio and Vitousek 1992, pp. 74-75; Brooks 2000, p. 92). In
addition, cheatgrass invades areas in response to surface disturbances
(Hobbs 1989, pp. 389, 393, 395, 398; Rejmanek 1989, pp. 381-383; Hobbs
and Huenneke 1992, pp. 324-325, 329, 330; Evans et al. 2001, p. 1308).
Cheatgrass and red brome are likely to increase due to climate change
(see ``Climate Change and Drought'' discussion, below, under Factor E)
because invasive annuals increase biomass and seed production at
elevated levels of carbon dioxide (Mayeux et al. 1994, p. 98; Smith et
al. 2000, pp. 80-81; Ziska et al. 2005, p. 1328).
Although cheatgrass and red brome both occur in close proximity to
Gierisch mallow habitat, red brome is more prevalent (Roaque 2012b, p.
1). As previously described above, both cheatgrass and red brome tend
to not grow well in gypsum outcrops in normal (dry) rainfall years;
however, they can be abundant in the Gierisch mallow habitat during wet
years. Red brome has also been documented in similar gypsiferous soils
near the Gierisch mallow populations after wet years (Roth 2012,
entire). As we stated above, we do not anticipate a high degree of
surface disturbances in the Gierisch mallow habitats in the near future
from livestock grazing except during drought years; however, increased
mining in Arizona and unauthorized OHV use, target shooting, and trash
dumping in the Utah population of the Gierisch mallow may lead to
significant amounts of surface disturbance, providing conditions that
allow red brome to expand into and increase in density within Gierisch
mallow habitat.
Invasions of annual, nonnative species, such as cheatgrass, are
well documented to contribute to increased fire frequencies (Brooks and
Pyke 2002, p. 5; Grace et al. 2002, p. 43; Brooks et al 2003, pp. 4,
13, 15). The disturbance caused by increased fire frequencies creates
favorable conditions for increased invasion by cheatgrass. The end
result is a downward spiral where an increase in invasive species
results in more fires, more fires create more disturbances, and more
disturbances lead to increased densities of invasive species. The risk
of fire is expected to increase from 46 to 100 percent when the cover
of cheatgrass increases from 12 to 45 percent or more (Link et al.
2006, p. 116). The invasion of red brome, another nonnative grass, into
the Mojave Desert of the intermountain west poses similar threats to
fire regimes, native plants, and other federally protected species
(Brooks et al. 2004, pp. 677-678). Brooks (1999, p. 16) also found that
high interspace biomass of red brome and cheatgrass resulted in greater
fire danger in the Mojave Desert. Brooks (1999, p. 18) goes on to state
that the ecological effects of cheatgrass and red brome-driven fires
are significant because of their intensity and consumption of perennial
shrubs.
In the absence of cheatgrass and red brome, the Gierisch mallow
grows in sparsely vegetated communities unlikely to carry fires (see
Biology, Habitat, and the Current Range section). Thus, this species is
unlikely to be adapted to survive high frequency fires. As described in
the Biology, Habitat, and the Current Range section, the total range of
this species covers approximately 186 ha (460 ac), and each of the 18
populations occupies a relatively small area, ranging between 0.003 ha
(0.01 ac) and 38.12 ha (94.36 ac). A range fire could easily impact or
eliminate one or all populations and degrade Gierisch mallow habitat to
the point that it will no longer be suitable for the plant. The loss of
one population and associated suitable habitat would be a significant
loss to the species. Therefore, the potential expansion of invasive
species and associated increase in fire frequency and intensity is a
significant threat to the species, especially when considering the
limited distribution of the species and the high potential of the
Gierisch mallow population extinctions.
In summary, we know that invasive species can impact plant
communities by increasing fire frequencies, outcompeting native
species, and altering pollinator behaviors. Although invasive species
do not occur in high densities in Gierisch mallow habitat during normal
(dry) rainfall years, nonnative, invasive species, especially red
brome, can be very abundant in wet rainfall years. Given the ubiquitous
nature of cheatgrass and red brome in the Intermountain West and their
ability to rapidly invade dryland ecosystems (Mack 1981, p. 145; Mack
and Pyke, 1983, p. 88; Thill et al. 1984, p. 10), we expect these
nonnative species to increase in the future in response to surface
disturbances from increased mining activities, recreation activities,
and global climate change (see ``Climate Change and Drought'' below).
An increase in cheatgrass and red brome is expected to increase the
frequency of fires in Gierisch mallow habitat, and the species is
unlikely to survive increased wildfires due to its small population
sizes and the anticipated habitat degradation. Therefore, we determine
that nonnative, invasive species and associated wildfires constitute a
significant threat to habitat of the Gierisch mallow.
Summary of Factor A
Based on our evaluation of the best available scientific
information, we conclude that the present and future destruction and
modification of the habitat for the Gierisch mallow is a
[[Page 49902]]
significant threat. Destruction and modification of habitat for the
Gierisch mallow are anticipated to result in a significant decrease in
both the range of the species and the size of the population of the
species.
Mining activities impacted Gierisch mallow habitat in the past and
will continue to be a threat in the future to the species' habitat
throughout its range. All of the populations and habitat are located on
BLM and ASLD lands, which have an extensive history of, and recent
successful exploration activities for, gypsum mining. Two of the
eighteen populations are located in the immediate vicinity of gypsum
mining, including the Black Rock Gypsum Mine which has an approved
Mining Plan of Operation to expand into the largest Gierisch mallow
population. Gypsum mining is expected to continue and expand in the
near future (Cox 2011b, p. 1; Dixon 2012, p. 1). Considering the small
area of occupied habitat immediately adjacent to existing gypsum mines,
anticipated future mining will result in the loss of habitat for these
populations in the future, and these two populations comprise more than
50 percent of the entire species' distribution.
Although livestock do not typically eat Gierisch mallow, livestock
grazing can affect Gierisch mallow habitat more significantly during
drought years, as livestock move into the Gierisch mallow habitat
searching for forage. Additionally, livestock have been implicated in
spreading nonnative, invasive species such as red brome and cheatgrass,
although we do not know the extent to which livestock contribute to the
spread of these two nonnative grasses.
Red brome and cheatgrass are documented to occur in all 18
populations of the Gierisch mallow, although mostly after wet rain
years. The threat of fire caused by annual nonnative species invasions
is exacerbated by mining activities, livestock grazing, and recreation
activities. Therefore, we conclude that Gierisch mallow and its habitat
face significant threats as a result of habitat loss and modification.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
The Gierisch mallow is not typically a plant of horticultural
interest; however, we do have information regarding possible seed
collection from wild plants on BLM and ASLD department lands for
commercial sale (Roth 2011, p. 1). Collection of seeds from both BLM
and ASLD is prohibited, and only the BLM offers a special permit to
collect seeds of candidate species. Each respective land management
agency referred the matter to its law enforcement branches. Because
collection is restricted, and collection permits are only issued for
scientific research or educational purposes by the Arizona Department
of Agriculture (Austin 2012, p. 1), we do not expect collection to be a
regular occurrence. See Factor D discussion, below, for a complete
description of when permits are issued for collection of the Gierisch
mallow. We are not aware of any other instances when the Gierisch
mallow has been collected from the wild other than as a voucher
specimen (specimen collected for an herbarium) (Atwood and Welsh 2002,
p. 161). Therefore, we conclude that overutilization for commercial,
recreational, scientific, or educational purposes is not a threat to
the Gierisch mallow now, and we have no information to indicate that it
will become a threat in the future.
C. Disease or Predation
The flowering stalks of the Gierisch mallow are eaten by livestock.
All of the Gierisch mallow populations on BLM lands are within grazing
allotments. Herbivory has been documented by a BLM ecologist (Service
2008a, p. 1), and Atwood (2008, p. 1). Hughes has found that the mallow
is eaten during drought years, when other forage is reduced or
unavailable. The plant is also grazed during non-drought times, but not
as heavily. The Gierisch mallow plants located near water sources
(stock tanks and drinkers) are also heavily browsed (Hughes 2008b, p.
1) because livestock tend to congregate near sources of water. When
Atwood (2008, p. 1) was surveying the populations to collect fruit of
the Gierisch mallow during drought years, Atwood was unable to locate
any fruit because all of the flowering stalks had been consumed by
livestock. The effect of sporadic grazing of plants is unknown, but
persistent grazing can reduce the reproductive output of the plants,
potentially reducing the size of the smaller populations, especially
during drought years. As previously described under Factor A, livestock
do not typically spend significant amounts of time in Gierisch mallow
habitat, due to the hillsides and steep slopes that the Gierisch mallow
typically inhabits, although livestock will enter into Gierisch mallow
habitat during drought periods.
Herbivory from livestock is not a significant threat, because of
the steepness of the terrain on which the plant is typically located
and because the herbivory that does occur is mostly limited to drought
years when the plant is not overly abundant. Although herbivory is
likely to continue to some degree, especially during drought years,
recruitment from the seed bank has been documented in recent years,
indicating that herbivory by livestock is not likely to diminish the
overall fitness and reproductive ability of the larger Gierisch mallow
populations. Smaller populations of the Gierisch mallow are likely to
be more susceptible to the effects of herbivory during drought years.
We have no information that disease is affecting the plants.
Therefore, based on the best available information, we conclude that
disease is not a threat to the Gierisch mallow, and that predation
(herbivory, along with some related trampling) is a moderate threat
during drought years.
D. The Inadequacy of Existing Regulatory Mechanisms
Under this factor, we examine whether existing regulatory
mechanisms are inadequate to address or alleviate the threats to the
species discussed under the other factors. Section 4(b)(1)(A) of the
Act requires the Service to take into account ``those efforts, if any,
being made by any State or foreign nation, or any political subdivision
of a State or foreign nation, to protect such species * * *.'' In
relation to Factor D under the Act, we interpret this language to
require the Service to consider relevant Federal, State, and tribal
laws, plans, regulations, and other such mechanisms that may minimize
any of the threats we describe in threat analyses under the other four
factors, or otherwise enhance conservation of the species. We give
strongest weight to statutes and their implementing regulations and to
management direction that stems from those laws and regulations. An
example would be State governmental actions enforced under a State
statute or constitution, or Federal action under statute.
Having evaluated the significance of the threat as mitigated by any
such conservation efforts, we analyze under Factor D the extent to
which existing regulatory mechanisms are inadequate to address the
specific threats to the species. Regulatory mechanisms, if they exist,
may reduce or eliminate the impacts from one or more identified
threats. In this section, we review existing State and Federal
regulatory mechanisms to determine whether they effectively reduce or
remove threats to the Gierisch mallow.
[[Page 49903]]
State Regulations
Over 90 percent of the species' known habitat and over 50 percent
of known populations are located on BLM and ASLD lands in Arizona
mining claims. There are no laws protecting the Gierisch mallow's
habitat on State or private lands in Arizona. This species is currently
protected by the Arizona Native Plant Act (ANPA). Since it became a
candidate species in 2008, Arizona protects the Gierisch mallow as
``Highly Safeguarded.'' Plants in the ``Highly Safeguarded'' category
under the ANPA include ``plants resident to this State and listed as
endangered, threatened, or category 1 in the Federal endangered species
act of 1973'' (ANPA 1997, p. 4). The ANPA controls collecting, and
limited scientific collection of ``Highly Safeguarded'' species is
allowed for research and educational purposes (Austin 2012, p. 1), but
the ANPA provides no protection for plant habitat. Private landowners
are required to obtain a salvage permit to remove plants protected by
the ANPA; however, there are no known private lands containing the
Gierisch mallow. Furthermore, seed collection on ASLD lands is
prohibited, as described above under Factor B, although there are no
ASLD regulations protecting habitat for the Gierisch mallow. While the
ANPA may be effectively protecting the species from direct threats, it
is not designed to protect the species' habitat.
In addition to the Black Rock Gypsum Mine on BLM lands in Arizona,
discussed below, the Georgia-Pacific Mine on ASLD Land is in close
proximity to a large Gierisch mallow population. The ASLD has fairly
strict reclamation provisions and bonding requirements when they
approve a Mining Plan of Operation; however, any decision that the ASLD
makes on whether or not to lease land is based strictly on the benefit
of the State Trust. The ASLD would not deny a mine, or any other
project, based on the presence of an endangered or threatened species;
however, they can have stipulations written into the ASLD lease or the
mining company's reclamation plan that would require them to make
allowances for federally listed species (Dixon 2012, p. 1). With listed
plants, these stipulations can include seed collection or transplanting
plants from the footprint of the mine; however, because the Gierisch
mallow is not currently listed, the ASLD does not currently have to
include these stipulations in reclamation plans. Because the ASLD does
not have to require mitigation stipulations to protect the Gierisch
mallow or its habitat, we conclude that this regulatory mechanism is
insufficient to protect the Gierisch mallow from threats to its habitat
associated with mining on ASLD lands.
Federal Regulations
Mining Activities on BLM Lands
We have previously identified habitat loss associated with gypsum
mining as a potential threat to the species. On BLM-managed lands, this
mining occurs pursuant to the Mining Law of 1872 (30 U.S.C. 21 et
seq.), which was enacted to promote exploration and development of
domestic mineral resources, as well as the settlement of the western
United States. It permits U.S. Citizens and businesses to freely
prospect hardrock (locatable) minerals and, if a valuable deposit is
found, file a claim giving them the right to use the land for mining
activities and sell the minerals extracted, without having to pay the
Federal government any holding fees or royalties (GAO 1989, p. 2).
Gypsum is frequently mined as a locatable mineral, and gypsum mining
is, therefore, subject to the Mining Law of 1872. The BLM implements
the Mining Law through Federal regulations, 43 CFR part 3800.
The operators of mining claims on BLM lands must reclaim disturbed
areas (Cox 2012, p. 1). The BLM's regulations also require the
mitigation of mining operations so that operations do not cause
unnecessary or undue degradation of public lands. Unnecessary or undue
degradation is generally referred to as ``harm to the environment that
is either unnecessary to a given project or violates specified
environmental protection statutes'' (USLegal, 2012, p. 1). Furthermore,
it is unclear what specific activities would constitute unnecessary or
undue degradation in relation to the Gierisch mallow and its habitat.
The Gierisch mallow is listed as a BLM sensitive species in both
Arizona and Utah. Sensitive species designation on BLM lands is
afforded through the Special Status Species Management Policy Manual
6840 (BLM 2008B, entire) which states that on BLM-administered
lands, the BLM shall manage Bureau sensitive species and their habitats
to minimize or eliminate threats affecting the status of the species,
or to improve the condition of the species habitat (BLM 2008B, pp. 37-
38).
The BLM's regulations do not prevent the Black Rock Gypsum Mine's
expansion into Gierisch mallow habitat, but the BLM could require
mitigation measures to prevent unnecessary or undue degradation from
mining operations. For example, the BLM required seed collection of the
Gierisch mallow by the mine operators to aid in reestablishing the
species in reclaimed areas of the Black Rock Gypsum Mine in the
recently approved expansion of the Black Rock Gypsum Mine.
The BLM has required seed collection as a result of these
operations; however, we do not know if enough seeds can be collected to
reestablish pre-mining population numbers in reclaimed areas. We are
unsure of the ability to reestablish healthy populations in reclaimed
areas because the number of plants observed growing from the seed bank
in reclaimed soils has decreased since they were first observed.
Furthermore, we do not know the long-term viability of these plants or
any plants grown from collected seeds. Therefore, we find that the BLM
Federal regulatory measures are not adequate to address the loss of
habitat caused by gypsum mining.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
Small Population Size
As previously described (see the Biology, Habitat, and the Current
Range section), the entire range of the Gierisch mallow is located in
an area of less than 186 ha (460 ac) throughout Arizona and Utah.
Within this range, each of the 18 individual populations' habitat areas
is very small, ranging from 0.003 ha (0.01 ac) to 38.12 ha (94.36 ac).
The Gierisch mallow can be dominant in small areas of suitable habitat,
containing thousands of individuals. However, the small areas of
occupation and the narrow overall range of the species make it highly
susceptible to stochastic events that may lead to local extirpations.
Mining, or a single random event such as a wildfire (see Factor A),
could extirpate an entire or substantial portion of a population given
the small area of occupied habitat. Species with limited ranges and
restricted habitat requirements also are more vulnerable to the effects
of global climate change (see the ``Climate Change and Drought''
section below; IPCC 2002, p. 22; Jump and Penuelas 2005, p. 1016;
Maschinski et al. 2006, p. 226; Krause 2010, p. 79).
Overall, we consider small population size and restricted range
intrinsic vulnerabilities to the Gierisch mallow that may not rise to
the level of a threat on its own. However, the small population sizes
and restricted range of this species increase the risk of extinction to
the Gierisch mallow populations in conjunction with the effects of
global climate change (see below) and the potential for stochastic
extinction events such as mining and
[[Page 49904]]
invasive species (Factor A). Therefore, we consider the small,
localized population size to exacerbate the threats of mining, invasive
species, and climate change to the species.
Climate Change and Drought
Our analyses under the Act include consideration of ongoing and
projected changes in climate. The terms ``climate'' and ``climate
change'' are defined by the Intergovernmental Panel on Climate Change
(IPCC). ``Climate'' refers to the mean and variability of different
types of weather conditions over time, with 30 years being a typical
period for such measurements, although shorter or longer periods also
may be used (IPCC 2007, p. 78). The term ``climate change'' thus refers
to a change in the mean or variability of one or more measures of
climate (e.g., temperature or precipitation) that persists for an
extended period, typically decades or longer, whether the change is due
to natural variability, human activity, or both (IPCC 2007, p. 78).
Various types of changes in climate can have direct or indirect effects
on species. These effects may be positive, neutral, or negative, and
they may change over time, depending on the species and other relevant
considerations, such as the effects of interactions of climate with
other variables (e.g., habitat fragmentation) (IPCC 2007, pp. 8-14, 18-
19). In our analyses, we use our expert judgment to weigh relevant
information, including uncertainty, in our consideration of various
aspects of climate change.
Annual mean precipitation levels are expected to decrease in
western North America and especially the southwestern States by mid-
century (IPCC 2007, p. 8; Seager et al. 2007, p. 1181). Throughout the
Gierisch mallow's range, precipitation is predicted to increase 10 to
15 percent in the winter, decrease 5 to 15 percent in spring and
summer, and remain unchanged in the fall under the highest emissions
scenario (Karl et al. 2009, p. 29). The levels of aridity of recent
drought conditions and perhaps those of the 1950s drought years will
become the new climatology for the southwestern United States (Seager
et al. 2007, p. 1181). Much of the Southwest remains in a 10-year
drought, which is considered the most severe western drought of the
last 110 years (Karl et al. 2009, p. 130). Although droughts occur more
frequently in areas with minimal precipitation, even a slight reduction
from normal precipitation may lead to severe reductions in plant
production (Herbel et al. 1972, p. 1084). Therefore, the smallest
change in environmental factors, especially precipitation, plays a
decisive role in plant survival in arid regions (Herbel et al. 1972, p.
1084).
As discussed above, the Gierisch mallow has a limited distribution,
and populations are localized and small. In addition, these populations
are restricted to very specific soil types. Global climate change
exacerbates the risk of extinction for species that are already
vulnerable due to low population numbers and restricted habitat
requirements. Predicted changes in climatic conditions include
increases in temperature, decreases in rainfall, and increases in
atmospheric carbon dioxide in the American Southwest (Walther et al.
2002, p. 389; IPCC 2007, p. 48; Karl et al. 2009, p. 129). Although we
have no information on how the Gierisch mallow will respond to effects
related to climate change, persistent or prolonged drought conditions
are likely to reduce the frequency and duration of flowering and
germination events, lower the recruitment of individual plants,
compromise the viability of populations, and impact pollinator
availability as pollinators have been documented to become locally
extinct during periods of drought (Tilman and El Haddi 1992, p. 263;
Harrison 2001, p. 64). The smallest change in environmental factors,
especially precipitation, plays a decisive role in plant survival in
arid regions (Herbel et al. 1972, p. 1084).
Drought conditions led to a noticeable decline in survival, vigor,
and reproductive output of other rare and endangered plants in the
Southwest during the drought years of 2001 through 2004 (Anderton 2002,
p. 1; Van Buren and Harper 2002, p. 3; Van Buren and Harper 2004,
entire; Hughes 2005, entire; Clark and Clark 2007, p. 6; Roth 2008a,
entire; Roth 2008b, pp. 3-4). Similar responses are anticipated to
adversely affect the long-term persistence of the Gierisch mallow.
Periods of prolonged drought, especially with decreased winter rains
essential to the survival and persistence of the Gierisch mallow, are
likely to decrease the ability of this plant to produce viable seeds.
Additionally, prolonged drought will likely diminish the ability of
seeds currently in the seed bank to produce viable plants and for
seedlings to survive to maturity.
Climate change is expected to increase levels of carbon dioxide
(Walther et al. 2002, p. 389; IPCC 2007, p. 48; Karl et al. 2009, p.
129). Elevated levels of carbon dioxide lead to increased invasive
annual plant biomass, invasive seed production, and pest outbreaks
(Smith et al. 2000, pp. 80-81; IPCC 2002, pp. 18, 32; Ziska et al.
2005, p. 1328) and will put additional stressors on rare plants already
suffering from the effects of elevated temperatures and drought. This
is important to note with regards to the Gierisch mallow because
increases in nonnative, invasive plants, including increased seed
production, are anticipated to increase both the frequency and
intensity of wildfires as described above in ``Nonnative, Invasive
Species.'' Additionally, these additional stressors associated with
increased carbon dioxide are likely to increase the competition for
resources between the Gierisch mallow and nonnative, invasive plant
species.
The actual extent to which climate change itself will impact the
Gierisch mallow is unclear, mostly because we do not have long-term
demographic information that would allow us to predict the species'
responses to changes in environmental conditions, including prolonged
drought. Any predictions at this point on how climate change would
affect this species would be speculative. However, as previously
described, mining and recreation activities are threats (see ``Mining''
and ``Recreation Activities'' sections above), which will likely result
in the loss of large numbers of individuals and maybe even entire
populations. Increased surface disturbances associated with mining and
recreation activities also will likely increase the extent and
densities of nonnative invasive species and with it the frequencies of
fires (see ``Nonnative, Invasive Species'' section above). Given the
cumulative effects of the potential population reduction and habitat
loss (of already small populations) associated with mining, recreation,
invasive species, and fire, we are concerned about the impacts of
future climate change to the Gierisch mallow.
In summary, the future effects of global climate change and drought
on the Gierisch mallow are unclear. However, because of the threats of
mining, grazing during drought years, recreation, and nonnative
species, the cumulative effects of climate change and drought may be of
concern for this species in the future. At this time, we believe that
the state of knowledge concerning the localized effects of climate
change and drought is too speculative to determine whether climate
change and drought are a threat to these species in the future.
However, we will continue to assess the potential threats of climate
change and drought as better scientific information becomes available.
[[Page 49905]]
Summary of Factor E
We assessed the potential risks of small population size to the
Gierisch mallow. The Gierisch mallow has a highly restricted
distribution and exists in 18 populations scattered over an area that
covers approximately 460 ac (186 ha). Individual populations occupy
very small areas with large densities of plants. We conclude that
stochastic events could impact a significant portion of a population.
Small populations that are restricted by habitat requirements also are
more vulnerable to the effects of climate change, such as prolonged
droughts and increased fire frequencies. Although small population size
and climate change make the species intrinsically more vulnerable, we
are uncertain whether they would rise to the level of threat by
themselves. However, when combined with the threats listed under Factor
A (mining operations; livestock grazing; recreation activities; and
nonnative, invasive species), and the lack of existing regulatory
mechanisms to alleviate those threats, the small population size and
restricted range of the Gierisch mallow are likely to significantly
increase the level of the above-mentioned threats.
Proposed Determination
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the Gierisch mallow. We find that the species is in danger of
extinction due to the current and ongoing modification and destruction
of its habitat and range (Factor A) from the ongoing and future gypsum
mining operations, livestock grazing, recreation activities, and
nonnative, invasive species. The most significant factor threatening
the Gierisch mallow is the ongoing and future gypsum mining that is
likely to remove more than 50 percent of the total population of the
Gierisch mallow. We did not find any significant threats to the species
under Factor B. We found that predation (herbivory) during drought
years to be a moderate threat (Factor C). We also found that existing
regulatory mechanisms that could provide protection to the Gierisch
mallow through mining operations management by the BLM and ASLD are
inadequate to protect the species (Factor D) from existing and future
threats. Finally, the small population size and restricted range of
this species also puts it at a heightened risk of extinction (Factor
E), due to the significant threats described above in Factors A, C, and
D.
The threats acting upon the populations of Gierisch mallow are
intensified because of the species' small population size and limited
range, resulting in a high likelihood of extinction for this species.
The Gierisch mallow is a narrow endemic species with a very restricted
range; the small areas of occupied habitat combined with the species'
strong association with gypsum soils makes the species highly
vulnerable to habitat destruction or modification through mining-
related and recreation activities as well as livestock grazing during
drought and random extinction events, including invasive species (and
the inherent risk of increased fires) and the potential future effects
of global climate change (Factor A). Furthermore, two of the largest
populations of the Gierisch mallow and its habitat will be completely
removed by mining operations. Both of the mines have approved Mining
Plans of Operations and permits from the respective land management
agencies (BLM and ASLD); thus mining can occur at any time. Even though
these mining operations are not currently active, when they begin
operation there will be no requirement for notification of land-
disturbing activities that would impact or completely remove these
populations. As previously stated, operation and expansion of these two
mines is anticipated to extirpate more than 50 percent of known
Gierisch mallow plants, which are located in two populations in
Arizona. The existing regulatory mechanisms are not adequate to protect
the Gierisch mallow from the primary threat of mining, particularly
because the BLM has approved mining operations with mitigation that we
consider ineffective at reducing threats. Furthermore, the ASLD does
not consider the presence of a listed species when approving a Mining
Plan of Operation. The ASLD has the ability to require mitigation for
the presence of a federally listed species; however, there is no
current requirement because the Gierisch mallow is not federally
listed. We consider this regulatory mechanism to be ineffective as
well. The inadequacy of regulatory mechanisms (Factor D), combined with
the expected turnaround of the housing market (gypsum is an important
component of sheet rock for housing construction), poses a serious
threat to the continued existence of the Gierisch mallow. The small,
reduced range (Factor E) of the Gierisch mallow also puts it at a
heightened risk of extinction.
The elevated risk of extinction of the Gierisch mallow is a result
of the cumulative stressors on the species and its habitat. For
example, gypsum mining is anticipated to extirpate more than half of
the known population of the Gierisch mallow, especially since the
existing regulations cannot sufficiently mitigate the effects of gypsum
mining in Gierisch mallow habitat. Livestock grazing throughout the
range of the Gierisch mallow may affect the population viability of the
remaining populations if periods of drought continue and livestock
continue to consume the Gierisch mallow, including seedlings, during
drought periods. Additionally, the risk of increased wildfire frequency
and intensity resulting from increased nonnative, invasive species has
the potential to extirpate several populations and, possibly,
contribute to the extinction of the species. Climate change is
anticipated to increase the drought periods and contribute to the
spread of nonnative, invasive species as well. All of these factors
combined heighten the risk of extinction and lead to our finding that
the Gierisch mallow is in danger of extinction and warrants listing as
an endangered species.
The Act defines an endangered species as any species that is ``in
danger of extinction throughout all or a significant portion of its
range'' and a threatened species as any species ``that is likely to
become endangered throughout all or a significant portion of its range
within the foreseeable future.'' The threats will not start having
serious impact to the species in the future, which would be the case
with a threatened species, but have already commenced, have been
negatively impacting the species for some time, and will continue to do
so into the foreseeable future. We find that the Gierisch mallow is
presently in danger of extinction throughout its entire range, based on
the immediacy, severity, and scope of the threats described above.
Therefore, on the basis of the best available scientific and commercial
information, we propose listing the Gierisch mallow as endangered in
accordance with sections 3(6) and 4(a)(1) of the Act.
Under the Act and our implementing regulations, a species may
warrant listing if it is endangered or threatened throughout all or a
significant portion of its range. The Gierisch mallow proposed for
listing in this rule is highly restricted in its range and the threats
occur throughout its range. Therefore, we assessed the status of the
species throughout its entire range. The threats to the survival of the
species occur throughout the species' range and are not restricted to
any particular
[[Page 49906]]
significant portion of that range. Accordingly, our assessment and
proposed determination applies to the species throughout its entire
range.
Listing the Gierisch mallow as a threatened species is not the
appropriate determination because the ongoing threats described above
are severe enough to increase the immediate risk of extinction. The
gypsum mining operations are anticipated to resume full operations and
expansions in as few as 3 to 10 years, although the mining operations
could occur sooner. Grazing is ongoing throughout the range of the
Giersich mallow, and climate change is anticipated to cause more
periods of drought, when livestock graze more heavily on the Gierisch
mallow. Additionally, red brome and cheatgrass are abundant throughout
the area, and while they are typically more abundant in the Gierisch
mallow habitat after wet years, recent wet years have left an abundant
crop of red brome in Gierisch mallow habitat. Wildfires could occur at
any time as a result of the proliferation of these invasive species.
All of these factors combined lead us to conclude that the threat of
extinction is high and immediate, thus warranting a determination of
endangered rather than threatened for the Gierisch mallow.
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, Tribal, and local agencies; private
organizations; and individuals. The Act encourages cooperation with the
States and requires that recovery actions be carried out for all listed
species. The protection required by Federal agencies and the
prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Subsection 4(f) of the Act requires the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning includes the development of a recovery outline
shortly after a species is listed, preparation of a draft and final
recovery plan, and revisions to the plan as significant new information
becomes available. The recovery outline guides the immediate
implementation of urgent recovery actions and describes the process to
be used to develop a recovery plan. The recovery plan identifies site-
specific management actions that will achieve recovery of the species,
measurable criteria that determine when a species may be downlisted or
delisted, and methods for monitoring recovery progress. Recovery plans
also establish a framework for agencies to coordinate their recovery
efforts and provide estimates of the cost of implementing recovery
tasks. Recovery teams (comprised of species experts, Federal and State
agencies, non-government organizations, and stakeholders) are often
established to develop recovery plans. If this proposed rule is made
final, when completed, the recovery outline, draft recovery plan, and
the final recovery plan would be available on our Web site (https://www.fws.gov/endangered), or from our Arizona Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribal, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
under to section 6 of the Act, the State of Arizona would be eligible
for Federal funds to implement management actions that promote the
protection and recovery of the Gierisch mallow. Information on our
grant programs that are available to aid species recovery can be found
at: https://www.fws.gov/grants.
Although the Gierisch mallow is only proposed for listing under the
Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see ADDRESSES).
Section 7(a) of the Act 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 designated. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR part 402.
Section 7(a)(4) of the Act 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) of the Act 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 within the species' habitat that may require
conference or consultation or both, as described in the preceding
paragraph, include management and any other landscape-altering
activities on Federal lands administered by the BLM, such as mining
operations, livestock grazing, and issuing special use permits.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered plants.
All prohibitions of section 9(a)(2) of the Act, implemented by 50 CFR
17.61, 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
[[Page 49907]]
in knowing violation of any State law or regulation, including State
criminal trespass law. Certain exceptions to the prohibitions apply to
agents of the Service and State conservation agencies.
This species is currently protected by the Arizona Native Plant Act
(ANPA). Since it became a candidate species in 2008, Arizona protects
the Gierisch mallow as ``Highly Safeguarded.'' Plants in the ``Highly
Safeguarded'' category under the ANPA include ``plants resident to this
State and listed as endangered, threatened, or category 1 in the
Federal endangered species act of 1973'' (ANPA 1997, p. 4). The ANPA
controls collecting, and limited scientific collection of ``Highly
Safeguarded'' species is allowed (Austin 2012, p. 1), but the ANPA
provides no protection for plant habitat. Protection under the Act as
an endangered species will, therefore, offer additional protections to
this species.
We may issue permits to carry out otherwise prohibited activities
involving endangered and threatened plant species under certain
circumstances. Regulations governing permits are codified at 50 CFR
17.62 for endangered plants, and at 17.72 for threatened plants. With
regard to endangered plants, a permit must be issued for the following
purposes: enhancement of propagation or survival of the species.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of species
proposed for listing. The following activities could potentially result
in a violation of section 9 of the Act; this list is not comprehensive:
Unauthorized collecting, handling, possessing, selling, delivering,
carrying, or transporting of the species, including import or export
across State lines and international boundaries, except for properly
documented antique specimens of these taxa at least 100 years old, as
defined by section 10(h)(1) of the Act.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Arizona
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Requests for copies of the regulations concerning listed plants and
general inquiries regarding prohibitions and permits may be addressed
to the U.S. Fish and Wildlife Service, Endangered Species Permits,
Southwest Regional Office, P.O. Box 1306, Albuquerque, NM, 87103-1306;
telephone (505) 248-6911; facsimile (505) 248-6915.
Critical Habitat
Prudency Determination
Section 4 of the Act, as amended, and implementing regulations (50
CFR 424.12), require that, to the maximum extent prudent and
determinable, the Secretary designate critical habitat at the time the
species is determined to be endangered or threatened. Our regulations
at 50 CFR 424.12(a)(1) state that the designation of critical habitat
is not prudent when one or both of the following situations exist: (1)
The species is threatened by taking or other activity and the
identification of critical habitat can be expected to increase the
degree of threat to the species; or (2) the designation of critical
habitat would not be beneficial to the species.
There is no indication that the Gierisch mallow threatened by
collection, and there are no likely increases in the degree of threats
to the species if critical habitat were designated. This species is not
the target of collection, and the areas we propose for designation
either have restricted public access (mine sites) or are already
readily open to the public (BLM land). None of the threats identified
to the species are associated with human access to the sites, with the
exception of the threats associated with recreational activities on BLM
land. This threat, or any other identified threat, is not expected to
increase as a result of critical habitat designation because the BLM
cannot control unauthorized recreational activities, and the
designation of critical habitat would not change the situation.
In the absence of finding that the designation of critical habitat
would increase threats to a species, if there are any benefits to a
critical habitat designation, then a prudent finding is warranted. The
potential benefits of critical habitat to the Gierisch mallow include:
(1) Triggering consultation under section 7 of the Act, in new areas
for actions in which there may be a Federal nexus where it would not
otherwise occur, because, for example, Federal agencies were not aware
of the potential impacts of an action on the species; (2) focusing
conservation activities on the most essential features and areas; (3)
providing educational benefits to State or county governments, or
private entities; and (4) preventing people from causing inadvertent
harm to the species. Therefore, because we have determined that the
designation of critical habitat would not likely increase the degree of
threat to any of the species and may provide some measure of benefit,
we find that designation of critical habitat is prudent for the
Gierisch mallow.
Background
It is our intent to discuss below only those topics directly
relevant to the designation of critical habitat for the Gierisch mallow
in this section of the proposed rule. For a complete description of the
life history and habitat needs of the Gierisch mallow, see the Species
Information section above.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
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 that are necessary to bring
an endangered 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 requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not 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 the government
or public
[[Page 49908]]
to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographic area occupied by the species at the time it
was listed (in this case, currently occupied areas) are included in a
critical habitat designation if they contain physical or biological
features (1) which are essential to the conservation of the species and
(2) which may require special management considerations or protection.
For these areas, critical habitat designations identify, to the extent
known using the best scientific and commercial data available, those
physical or biological features that are essential to the conservation
of the species (such as space, food, cover, and protected habitat). In
identifying those physical and biological features within an area, we
focus on the principal biological or physical constituent elements
(primary constituent elements such as roost sites, nesting grounds,
seasonal wetlands, water quality, tide, soil type) that are essential
to the conservation of the species. Primary constituent elements (PCEs)
are the elements of physical or biological features that, when laid out
in the appropriate quantity and spatial arrangement to provide for a
species' life-history processes, are essential to the conservation of
the species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographic area
occupied by the species at the time it is listed (in this case, outside
currently occupied areas), upon a determination that such areas are
essential for the conservation of the species. For example, an area
currently occupied by the species but that was not occupied at the time
of listing may be essential to the conservation of the species and may
be included in the critical habitat designation. We designate critical
habitat in areas outside the geographic area occupied by a species only
when a designation limited to its range would be inadequate to ensure
the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. If we list the Gierisch mallow, areas that
are important to the conservation of the species, both inside and
outside the critical habitat designation, would continue to be subject
to: (1) Conservation actions implemented under section 7(a)(1) of the
Act, (2) regulatory protections afforded by the requirement in section
7(a)(2) of the Act for Federal agencies to ensure their actions are not
likely to jeopardize the continued existence of any endangered or
threatened species, and (3) the prohibitions of section 9 of the Act if
actions occurring in these areas may affect the species. Federally
funded or permitted projects affecting listed species outside their
designated critical habitat areas may still result in jeopardy findings
in some cases. These protections and conservation tools would continue
to contribute to recovery of this species. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation would not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if new information available at
the time of these planning efforts calls for a different outcome.
Physical or Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
regulations at 50 CFR 424.12, in determining which areas within the
geographic area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection.
These include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographic, and ecological
distributions of a species.
We derive the specific physical or biological features required for
the Gierisch mallow from studies of this species' habitat, ecology, and
life history as described below. We have determined that the following
physical or biological features are essential for the Gierisch mallow.
Space for Individual and Population Growth and for Normal Behavior
The Gierisch mallow has a limited distribution; it is only found in
a small area in Utah and Arizona. Within these areas, the Gierisch
mallow requires appropriate soils, associated formations, slope,
drainage, and plant community types within the landscape to provide
space for individual growth and to provide food, water, air, light,
minerals, or other nutritional or physiological requirements. In both
Arizona and Utah, the Gierisch mallow is found in gypsiferous outcrops
of the Harrisburg Member of the Kaibab Formation. In Arizona, these
sites may be affiliated
[[Page 49909]]
with the following gypsiferous soil series:
Nikey-Ruesh complex,
Gypill-Hobog complex,
Hobog-Tidwell complex,
Hobog-Grapevine complex,
Grapevine-Shelly complex,
Hindu-Rock outcrop-Gypill complex,
Cave-Harrisburg-Grapevine complex, and
Grapevine-Hobcan complex (Service unpublished data).
Sites in Utah are most affiliated with the following soil series
(Service unpublished data, 2012, p. 1):
Badland
Fluvaquents and Torrifluvents, and
Riverwash.
The Gierisch mallow occurs at elevations from 821 to 1,148 m (2,694
to 3,766 ft) in Arizona and from 755 to 861 m (2,477 to 2,825 ft) in
Utah. We could not correlate the Gierisch mallow occurrences to a
specific range of slopes; therefore, topography is not considered to be
an essential physical feature for this species (Service unpublished
data, 2012).
The Gierisch mallow occurs in sparsely vegetated, warm desert
communities. All occupied habitat throughout its range occurs within
the landcover described as Mojave mid-elevation mixed desert scrub
(NatureServe 2011, p. 2). This classification represents the extensive
desert scrub in the transition zone above the Larrea tridentata
(creosote)-Ambrosia dumosa (white bursage) desert scrub and below the
lower montane woodlands from 700 to 1800 m (2,296 to 5,905 ft) that
occur in the eastern and central Mojave Desert. The vegetation within
this ecological system is quite variable. A list of common plants
associated with the Gierisch mallow habitat is included in Table 2.
Table 2--Vegetation Associated With the Gierisch Mallow Habitat
(NatureServe 2011, p. 2)
------------------------------------------------------------------------
Other common
Codominant and diagnostic Woody plant species nonwoody species
species associates associates
------------------------------------------------------------------------
Coleogyne ramosissima Acacia greggii Achnatherum
(Blackbrush). (Catclaw acacia). hymenoides (Indian
ricegrass).
Eriogonum fasciculatum Canotia holacantha A. speciosum (Desert
(Buckwheat). (Crucifixion thorn). needlegrass).
Ephedra nevadensis (Nevada Ephedra nevadensis Muhlenbergia porteri
jointfir). (Nevada jointfir). (Bush muhly).
Grayia spinosa (Spiny Ephedra torreyana Eriogonum sp.
hopsage). (Desert Mormon tea). (Various annual
buckwheats).
Encelia farinosa Pleuraphis jamesii
(Brittlebush). (James' galleta).
Purshia stansburiana Poa secunda
(Stansbury (Sandberg
cliffrose). bluegrass).
Gutierrezia
sarothrae (Broom
snakeweed).
------------------------------------------------------------------------
Depending on the moisture regime, the Gierisch mallow also can be
associated with native annuals that are often ephemeral (seen only in
the spring) and, like many Mohave Desert plant species, seasonally
abundant based on climatic conditions.
Therefore, based on the information above, we identify gypsum soils
found in the Harrisburg Member of the Kaibab Formation from 755 to
1,148 m (2,477 to 3,766 ft) and with the appropriate native vegetation
communities to be an essential physical or biological feature for this
species.
Sites for Reproduction, Germination, Seed Dispersal or Pollination
The Gierisch mallow is a native species of sparsely vegetated, warm
desert communities. Although we do not know how the species is
pollinated, other species of the genus Sphaeralcea (globemallows) are
pollinated by Diadasia diminuta (globemallow bee), which specializes in
pollinating plants of this genus. Globemallow bees are considered
important pollinators for globemallows (Tepedino 2010, p. 2). These
solitary bees, as well as other Diadasia species, are known to occur
within the range of the Gierisch mallow (Sipes and Tepedino 2005, pp.
490-491; Sipes and Wolf 2001, pp. 146-147), so it is reasonable to
assume that they are potential pollinators of the Gierisch mallow and
other associated vegetation in the surrounding community. The
globemallow bee, along with other solitary bees, nest in the ground,
and nests are commonly found in partially compacted soil along the
margins of dirt roads in the western United States (Tepedino 2010, p.
1). It is important to protect those nesting sites and associated
natural habitat for the globemallow bee and other potential
pollinators.
Natural habitat for the globemallow bee and other potential
pollinators includes those appropriate vegetation communities described
above in Table 2. The lack of favorable natural habitat can negatively
influence pollination productivity (Kremen et al. 2004, pp. 1116-1117).
Sites for the Gierisch mallow's reproduction, germination, and seed
dispersal, and pollination providers are found within the communities
described above. Because the Gierisch mallow is potentially pollinated
by globemallow bees and other insects, the presence of pollinator
populations is essential to the conservation of the species.
Preservation of the mix of species and interspecific interactions they
encompass greatly improves the chances for survival of rare species in
their original location and habitat (Tepedino et al. 1996, p. 245).
Redundancy of pollinator species is important because a pollinator
species may be abundant one year and less so the next year. Maintaining
a full suite of pollinators allows for the likelihood that another
pollinator species will stand in for a less abundant one, and is
essential in assuring adequate pollination.
Bees have a limited foraging range strongly correlated to body size
(Greenleaf, 2005, p. 17; Steffan-Dewenter and Tscharntke 1999, pp. 434-
435). Fragmentation of habitat can result in isolating plants from
pollinator nesting sites. When the distance between plants and the
natural habitats of pollinators increases, plant reproduction (as
measured by mean seed set) can decline by as much as 50 percent in some
plant species (Steffan-Dewenter and Tscharntke 1999, pp. 435-436).
Optimal pollination occurs when there is abundance of individual
pollinators and a species-rich bee community (Greenleaf 2005, p. 47).
Greenleaf (2005, p. 15) defines the typical homing distance of a
bee taxon as the distance at which 50 percent of individual bees of
that taxon have the ability to return to their home (nest, etc.).
Solitary bees of various species have been documented to have foraging
distances ranging from 150 m (492 ft) to
[[Page 49910]]
1,200 m (3,937 ft) (Gathmann and Tscharntke 2002, p. 760; Greenleaf et
al. 2007, p. 593).
Therefore, based on the information above, we identify pollinators
and associated appropriate native plant communities within 1,200 m
(3,937 ft) of occupied sites to be an essential physical or biological
feature for this species.
Habitats Protected From Disturbance or Representative of the
Historical, Geographic, and Ecological Distributions of the Species
The species' known range has not contracted or expanded since the
species was described in 2002. All sites contribute to ecological
distribution and function for this species by providing representation
across the species' limited current range. It is important to minimize
surface-disturbing activities throughout the limited range of the
Gierisch mallow. Surface disturbing activities, such mining and
recreation activities (OHV and impacts related to target shooting),
remove the unique soil composition and associated vegetation
communities that the Gierisch mallow needs.
Additionally, it is important to have areas in all the units free
of nonnative, invasive species, such as red brome and cheatgrass. As
previously discussed in Factor A, above, both cheatgrass and red brome
tend to not grow well in gypsum outcrops in normal (dry) rainfall
years; however, they can be abundant in Gierisch mallow habitat during
wet years. Invasions of annual, nonnative species, such as cheatgrass,
are well documented to contribute to increased fire frequencies (Brooks
and Pyke 2002, p. 5; Grace et al. 2002, p. 43; Brooks et al. 2003, pp.
4, 13, 15). The disturbance caused by increased fire frequencies
creates favorable conditions for increased invasion by cheatgrass. The
end result is a downward spiral, where an increase in invasive species
results in more fires, more fires create more disturbances, and more
disturbances lead to increased densities of invasive species. The risk
of fire is expected to increase from 46 to 100 percent when the cover
of cheatgrass increases from 12 to 45 percent or more (Link et al.
2006, p. 116). The invasion of red brome into the Mojave Desert of
western North America poses similar threats to fire regimes, native
plants, and other federally protected species (Brooks et al. 2004, pp.
677-678). Brooks (1999, p. 16) also found that high interspace biomass
of red brome and cheatgrass resulted in greater fire danger in the
Mojave Desert. Brooks (1999, p. 18) goes on to state that the
ecological effects of cheatgrass and red brome-driven fires are
significant because of their intensity and consumption of perennial
shrubs.
Imprecise forecasts of the impacts of climate change make the
identification of areas that may become essential impractical at this
time. Therefore, we have not identified additional areas outside those
currently occupied where the species may move to, or be transplanted
to, as a result of the impacts due to climate change.
Based on the information above, we identify areas free of
disturbance and areas with low densities or absence of nonnative,
invasive species to be an essential physical or biological feature for
this species.
Primary Constituent Elements for the Gierisch Mallow
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of the Gierisch mallow in areas occupied at the time of
listing, focusing on the features' primary constituent elements. We
consider primary constituent elements to be the elements of physical or
biological features that provide for a species' life-history processes
and are essential to the conservation of the species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine that the primary constituent
elements specific to the Gierisch mallow are:
(1) Appropriate geological layers or gypsiferous soils, in the
Harrisburg Member of the Kaibab Formation, that support individual
Gierisch mallow plants or their habitat, within the elevation range of
775 to 1,148 m (2,477 to 3,766 ft). Appropriate soils are defined as:
Badland,
Fluvaquents and Torrifluvents,
Riverwash,
Cave-Harrisburg-Grapevine complex,
Grapevine-Hobcan complex,
Nikey-Ruesh complex,
Gypill-Hobog complex,
Hobog-Tidwell complex,
Hobog-Grapevine complex,
Grapevine-Shelly complex, and
Hindu-Rock outcrop-Gypill complex.
(2) Appropriate Mojave desert scrub plant community and associated
native species for the soil types at the sites listed in PCE 1.
(3) The presence of insect visitors or pollinators, such as the
globemallow bee and other solitary bees. To ensure the proper suite of
pollinators are present, this includes habitat that provides nesting
substrate for pollinators in the areas described in PCE 2.
(4) Areas free of disturbance and areas with low densities or
absence of nonnative, invasive plants, such as red brome and
cheatgrass.
With this proposed designation of critical habitat, we intend to
identify the physical or biological features essential to the
conservation of the species, through the identification of primary
constituent elements sufficient to support the life-history processes
of the species. All units proposed to be designated as critical habitat
are currently occupied by the Gierisch mallow and contain the primary
constituent elements sufficient to support the life-history needs of
the species.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographic area occupied by the species at the time of
listing contain features that are essential to the conservation of the
species and which may require special management considerations or
protection. The features essential to the conservation of this species
may require special management considerations or protection to reduce
the direct and indirect effects associated with the following threats:
Habitat loss and degradation from mining operations; livestock grazing;
recreation activities; and invasive plant species. Please refer to
Factor A above for a complete description of these threats.
Special management to protect the features essential to the
conservation of the species from the effects of gypsum mining include
creating managed plant preserves and open spaces, limiting disturbances
to and within suitable habitats, and evaluating the need for and
conducting restoration or revegetation of native plants in open spaces
or plant preserves containing similar gypsum soils. Management
activities that could ameliorate these threats include (but are not
limited to) seed collection from the Gierisch mallow throughout its
range, including those plants within the footprint of each mine. These
seeds could be used to begin propagation studies to determine the long-
term viability of plants growing in reclaimed soils. Additionally,
these seeds could be used to begin propagating plants to be planted in
other gypsum deposits and to augment existing populations. Special
management may be necessary to
[[Page 49911]]
protect features essential to the conservation of the Gierisch mallow
from livestock grazing, including fencing populations; avoiding
activities, such as water trough placement, that might concentrate
livestock near or in occupied habitat; and removing livestock from
critical habitat during the species' growing and reproductive seasons,
especially during periods of flowering and fruiting. Special management
that may be necessary to protect the features essential to the
conservation of the Gierisch mallow from recreational activities
includes directing recreational use away from and outside of critical
habitat, fencing small populations, removing or limiting access routes,
ensuring land use practices do not disturb the hydrologic regime, and
avoiding activities that might concentrate water flows or sediments
into critical habitat. Additionally, threats related to both control of
nonnative, invasive species and fire suppression and fire-related
activities resulting from the spread of nonnative, invasive species
include:
Crushing and trampling of plants from fire suppression and
treatment activities;
Damage to seedbank as a result of fire severity;
Soil erosion; and
An increase of invasive plant species that may compete
with native plant species as a result of wildfires removing non-fire-
adapted native plant species or as a result of fire suppression
equipment introducing invasive plant species.
Criteria Used To Identify Critical Habitat
Geographic Range Occupied at the Time of Listing
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. We review
available information pertaining to the habitat requirements of the
species. In accordance with the Act and its implementing regulation at
50 CFR 424.12(e), we consider whether designating additional areas--
outside those currently occupied as well as those occupied at the time
of listing--are necessary to ensure the conservation of the species. We
are proposing to designate critical habitat in areas within the
geographic area occupied by the species as described above in the
proposed rule to list the Gierisch mallow and that contain one or more
of the identified primary constituent elements. We are not currently
proposing to designate any areas outside the geographic area occupied
by the species, because occupied areas are sufficient for the
conservation of the species.
Our rationale for not including areas outside of the geographic
range of Gierisch mallow is twofold. One, the areas designated as
occupied contain the physical and biological features essential for the
species. Secondly, within the overall geographic range of the species,
there are some areas or patches devoid of plants, as one would expect.
Therefore, it follows that within the critical habitat units we are
proposing, there are areas without the plant growing in them. Thus,
even though all units are occupied when considering the appropriate
scale for critical habitat designation, there is still room for more
plants to grow. This should provide room for expansion of the existing
populations. Should recovery planning for this species include actions
to augment or establish additional populations, the proposed critical
habitat units will provide for enough habitat to allow for those
activities. Therefore, we conclude that additional areas outside of the
geographic range of the Gierisch mallow are not needed to conserve the
species.
There is no information on the historical range of this species;
however, it is possible that the gypsum hills supported populations of
the Gierisch mallow before active mining (and removal of the gypsum)
began, but there is no information that the species occurred outside of
its current range. Currently, there are 18 known populations restricted
to less than approximately 186 ha (460 ac) in Arizona and Utah,
combined. The main populations in Arizona are located south of the
Black Knolls, approximately 19.3 km (12 mi) southwest of St. George,
Utah, with the southernmost population of this group being on the edge
of Black Rock Gulch near Mokaac Mountain. There is another population
approximately 4.8 km (3 mi) north of the Black Knolls, on ASLD lands
near the Arizona/Utah State line. The Utah population is located on BLM
lands within 3.2 km (2 mi) of the Arizona/Utah State line, near the
Arizona population on ASLD land. Gypsum outcrops associated with the
Harrisburg Member are scattered throughout BLM lands in northern
Arizona and southern Utah. Extensive surveys were conducted in these
areas because numerous other rare plant species are associated with
these landforms. Gierisch mallow plants were not located in any other
areas beyond what is currently known and described above (Atwood 2008,
p. 1). In identifying proposed critical habitat units for Gierisch
mallow, we proceeded through a multi-step process.
Mapping
We obtained records of Gierisch mallow distribution from BLM's
Arizona Strip Field Office, BLM's St. George Field Office, and both
published and unpublished documentation from our files. This
information included BLM hand-mapped polygons that outlined Gierisch
mallow habitats in Arizona and Utah.
For all areas, survey data from 2001 to 2011 were available and
evaluated to identify the extent of occupied habitat (provided by BLM).
Although occupied sites may gradually change, recent survey results
confirm that plant distribution is similar to observed distributions
over the last 10 years.
Our approach to delineating critical habitat units was applied in
the following manner:
(1) We overlaid Gierisch mallow locations into a GIS database. This
provided us with the ability to examine slope, aspect, elevation,
vegetation community, and topographic features, such as drainages in
relation to the locations of Gierisch mallow on the landscape. The
locations of Gierisch mallow, and their relationship to landscape
features, verified our previous knowledge of the species and slightly
expanded the previously recorded elevation ranges for Gierisch mallow.
We examined Gierisch mallow locations in an attempt to identify any
correlation with aspect, slope, and occurrence location for this
species; however we found no such correlation.
To better understand the relationship of the Gierisch mallow
locations to specific soils, we also examined soil series layers,
aerial photography, and hardcopy geologic maps. For Gierisch mallow, we
analyzed soil survey layers. For Gierisch mallow locations in Utah, we
found that 26.02 percent of all individuals rangewide (AZ and UT) are
associated with Badland, and 0.03 percent of all individuals are
associated with Fluvaquents and Torrifluvents soil complexes. In
Arizona, we found that occupied sites are associated with the following
soil types (percentages are rangewide):
Nikey-Ruesh complex (3.14 percent),
Gypill-Hobog complex (65.94 percent),
Hobog-Tidwell complex (3.53 percent),
Hobog-Grapevine complex (0.85 percent),
Grapevine-Shelly complex (0.24 percent), and
[[Page 49912]]
Hindu-Rock outcrop-Gypill complex (0.25 percent) (Service
unpublished data).
This provided us with several polygons of occupied habitat spread
across the above soil series.
(2) To further refine our critical habitat, we then included a
1,200 m (3,937 feet) buffer around the polygons of occupied habitat to
ensure that all potential pollinators would have a sufficient land base
to establish nesting sites and to provide pollinating services for
Gierisch mallow, as described in Primary Constituent Elements above.
Additionally, the 1,200 m (3,937 feet) buffer included three other
gypsiferous soil types that also contain the necessary habitat for the
Gierisch mallow. These soil types are the
Riverwash,
Cave-Harrisburg-Grapevine complex, and
Grapevine-Hobcan complex.
(3) We then drew critical habitat boundaries that captured the
locations, soils, and pollinator habitat elucidated under (1) and (2)
above. Critical habitat designations were then mapped using Albers
Equal Area (Albers) North American Datum 83 (NAD 83) coordinates.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features for Gierisch mallow. The scale of the
maps we prepared under the parameters for publication within the Code
of Federal Regulations may not reflect the exclusion of such developed
lands. Any such lands inadvertently left inside critical habitat
boundaries shown on the maps of this proposed rule have been excluded
by text in the proposed rule and are not proposed for designation as
critical habitat. Therefore, if the critical habitat is finalized as
proposed, a Federal action involving these lands would not trigger
section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
We are proposing for designation of critical habitat lands that we
have determined areas occupied at the time of listing and contain
sufficient elements of physical or biological features to support life-
history processes essential for the conservation of the species. No
lands outside of the geographic area occupied at the time of listing
have been proposed for listing. The area included in both units is
large enough and contains sufficient habitat to ensure the conservation
of Gierisch mallow.
Proposed Critical Habitat Designation
We are proposing two units as critical habitat for Gierisch mallow.
Both units are occupied and contain features that are essential to the
conservation of Gierisch mallow. We mapped the units with a degree of
precision commensurate with the available information and the size of
the unit. The two areas we propose as critical habitat are the
Starvation Point Unit and the Black Knolls Unit. The approximate area
of each proposed critical habitat unit is shown in Table 3.
Table 3--Proposed Critical Habitat Units for Gierisch Mallow
[Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
Critical Habitat unit BLM AZ Federal BLM UT Federal AZ State Lands Totals
----------------------------------------------------------------------------------------------------------------
Unit 1. Starvation Point........ 0................. 1,022 ha (2,526 316 ha (782 ac)... 1,339 ha (3,309
ac). ac).
Unit 2. Black Knolls............ 3,586 ha (8,862 0................. 263 ha (651 ac)... 3,850 ha (9,513
ac). ac).
-------------------------------------------------------------------------------
Totals...................... 3,586 ha (8,862 1,022 ha (2,526 580 ac (1,434 ac). 5,189 ha (12,822
ac). ac). ac).
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for Gierisch mallow, as
follows.
Unit 1: Starvation Point
This unit consists of approximately 1,339 ha (3,308.7 ac) and
occurs on land managed by both Utah BLM (1,022 ha; 2,526.46 ac) and
ASLD (316 ha; 782.24 ac). This unit was occupied at the time of listing
and contains the features essential to the conservation of the species.
Unit 1 contains two Gierisch mallow populations, including the second
largest population. Unit 1 is located west of I-15 as this highway
crosses the State line of Arizona and Utah, and is bounded by the
Virgin River to the west and I-15 to the south and east.
The features essential to the conservation of the species may
require special management considerations or protection to control
invasive plant species, to control habitat degradation due to the
recreation and mining activities that disrupt the soil composition, and
to maintain the identified associated vegetation and pollinators
essential to the conservation of the species. The portion of habitat
that occurs on ASLD occurs within the footprint of the Georgia-Pacific
Mine, which could resume gypsum mining operations in the near future.
Grazing, which can modify the primary constituent elements and may
require special management, typically occurs outside of the growing
season for Gierisch mallow in the one pasture on BLM land within this
unit; however, recent wildfires in adjacent pastures in this allotment
have resulted in livestock grazing occurring into the spring growing
season for Gierisch mallow. These recently burned pastures have since
been rehabilitated, and livestock grazing is anticipated to return to
its normal grazing rotation of November 1 to February 28 in the future
(Douglas 2012, p. 1).
Unit 2: Black Knolls
This unit consists of approximately 3,850 ha (9,513.30 ac) and
occurs on land managed by both Arizona BLM (3,586.28 ha; 8,861.90 ac)
and ASLD (263.62 ha; 651.41 acres). This unit is occupied at the time
of listing and contains the features essential to the conservation of
the species. Unit 2 contains the remaining 16 Gierisch mallow
populations, including the largest population. Unit 2 is located south
of I-15 as this highway crosses the State line of Arizona and Utah, and
is bounded by Black Rock Gulch to the west and Mokaac Mountain to the
south and east.
The features essential to the conservation of the species may
require special management considerations or protection to control
invasive plant species, to control habitat degradation due to mining
activities that disrupt the soil composition, and to maintain the
identified associated vegetation and pollinators essential to the
conservation
[[Page 49913]]
of the species. The largest population of Gierisch mallow occurs in the
area of the proposed expansion of the Black Rock Gypsum Mine. As
described in the proposed listing discussion above, grazing on BLM AZ
lands typically occurs during the growing season for Gierisch mallow on
all three BLM AZ allotments and is expected to modify the primary
constituent elements, although some of the pastures are in a rest/
rotation system in which a pasture may see an entire year of rest
before being grazed again.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action that is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th
Cir. 2001)), and we do not rely on this regulatory definition when
analyzing whether an action is likely to destroy or adversely modify
critical habitat. Under the statutory provisions of the Act, we
determine destruction or adverse modification on the basis of whether,
with implementation of the proposed Federal action, the affected
critical habitat would continue to serve its intended conservation role
for the species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or authorized, do not require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, or
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the physical or
biological features to an extent that appreciably reduces the
conservation value of critical habitat for Gierisch mallow. As
discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the
species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the Gierisch mallow. These activities include, but are
not limited to, actions that would significantly alter soil composition
that Gierisch mallow requires, including but not limited to mining
operations, livestock grazing, and special use permits for recreation
activities.
Exemptions
Application of Section 4(a)(3) of the Act
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographic areas owned
or controlled by the Department of Defense, or designated for its use,
that are subject to an integrated natural resources management plan
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the
Secretary determines in writing that such plan provides a benefit to
the species for which critical habitat is proposed for designation.''
[[Page 49914]]
There are no Department of Defense lands within the proposed
critical habitat designation.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we identify
the benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise his discretion to
exclude the area only if such exclusion would not result in the
extinction of the species.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we are preparing an analysis of the economic
impacts of the proposed critical habitat designation and related
factors. Potential land use sectors that may be affected by the
critical habitat designation include mining, livestock operations, and
OHV use, and recreation activities. We also consider any social impacts
that might occur because of the designation.
We will announce the availability of the draft economic analysis as
soon as it is completed, at which time we will seek public review and
comment. At that time, copies of the draft economic analysis will be
available for downloading from the Internet at https://www.regulations.gov, or by contacting the Arizona Ecological Services
Field Office directly (see FOR FURTHER INFORMATION CONTACT). During the
development of a final designation, we will consider economic impacts,
public comments, and other new information, and areas may be excluded
from the final critical habitat designation under section 4(b)(2) of
the Act and our implementing regulations at 50 CFR 424.19.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense where a national
security impact might exist. In preparing this proposal, we have
determined that the lands within the proposed designation of critical
habitat for the Gierisch mallow are not owned or managed by the
Department of Defense, and, therefore, we anticipate no impact on
national security. Consequently, the Secretary does not propose to
exert his discretion to exclude any areas from the final designation
based on impacts on national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether the
landowners have developed any habitat conservation plans or other
management plans for the area, or whether there are conservation
partnerships that would be encouraged by designation of, or exclusion
from, critical habitat. In addition, we look at any tribal issues, and
consider the government-to-government relationship of the United States
with tribal entities. We also consider any social impacts that might
occur because of the designation.
We are not proposing any exclusions at this time from the proposed
critical habitat designation under section 4(b)(2) of the Act based on
partnerships, management, or protection afforded by cooperative
management efforts.
Peer Review
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. The purpose of peer review is to ensure
that our proposed listing and critical habitat designation are based on
scientifically sound data, assumptions, and analyses. We have invited
these peer reviewers to comment during this public comment period on
our specific assumptions and conclusions in this proposed rule.
We will consider all comments and information received during this
comment period on this proposed rule during our preparation of a final
determination. Accordingly, the final decision may differ from this
proposal.
Public Hearings
Section 4(b)(5) of the Act provides for one or more public hearings
on this proposal, if requested. Requests must be received within 45
days after the date of publication of this proposed rule in the Federal
Register. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule public hearings on this
proposal, if any are requested, and announce the dates, times, and
places of those hearings, as well as how to obtain reasonable
accommodations, in the Federal Register and local newspapers at least
15 days before the hearing.
Required Determinations
Regulatory Planning and Review--Executive Orders 12866 and 13563
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866, while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as
amended
[[Page 49915]]
by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 (5 U.S.C. 801 et seq.), whenever an agency must publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended the RFA to
require Federal agencies to provide a certification statement of the
factual basis for certifying that the rule will not have a significant
economic impact on a substantial number of small entities.
At this time, we lack the available economic information necessary
to provide an adequate factual basis for the required RFA finding.
Therefore, we defer the RFA finding until completion of the draft
economic analysis prepared under section 4(b)(2) of the Act and
Executive Order 12866. This draft economic analysis will provide the
required factual basis for the RFA finding. Upon completion of the
draft economic analysis, we will announce availability of the draft
economic analysis of the proposed designation in the Federal Register
and reopen the public comment period for the proposed designation. We
will include with this announcement, as appropriate, an initial
regulatory flexibility analysis or a certification that the rule will
not have a significant economic impact on a substantial number of small
entities accompanied by the factual basis for that determination.
We have concluded that deferring the RFA finding until completion
of the draft economic analysis is necessary to meet the purposes and
requirements of the RFA. Deferring the RFA finding in this manner will
ensure that we make a sufficiently informed determination based on
adequate economic information and provide the necessary opportunity for
public comment.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. We do not expect the designation of this proposed
critical habitat to significantly affect energy supplies, distribution,
or use. Therefore, this action is not a significant energy action, and
no Statement of Energy Effects is required. However, we will further
evaluate this issue as we conduct our economic analysis, and review and
revise this assessment as warranted.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule would not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because the lands being proposed for
critical habitat designation are owned by the State of Arizona and the
BLM. Neither of these government entities fit the definition of ``small
governmental jurisdiction.'' Therefore, a Small Government Agency Plan
is not required. However, we will further evaluate this issue as we
conduct our economic analysis, and review and revise this assessment as
warranted.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we will analyze the potential takings implications of designating
critical habitat for Gierisch mallow in a takings implications
assessment. Critical habitat designation does not affect landowner
actions that do not require Federal funding or permits, nor does it
preclude development of habitat conservation programs or issuance of
incidental take permits to permit actions that do require Federal
funding or permits to go forward.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this
proposed rule does not have significant Federalism effects. A
Federalism summary impact statement is not required. In keeping with
Department of the Interior and Department of Commerce policy, we
requested information from, and coordinated development of, this
proposed critical habitat designation with appropriate State resource
agencies in Arizona and Utah. The designation of critical habitat in
areas currently occupied by the Gierisch mallow imposes no additional
restrictions to those currently in place and, therefore, has little
incremental impact on State and local governments and their
[[Page 49916]]
activities. The designation may have some benefit to these governments
because the areas that contain the physical or biological features
essential to the conservation of the species are more clearly defined,
and the elements of the features of the habitat necessary to the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist local governments in long-
range planning (rather than having them wait for case-by-case section 7
consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. This
proposed rule uses standard mapping technology and identifies the
elements of physical or biological features essential to the
conservation of the Gierisch mallow within the designated areas to
assist the public in understanding the habitat needs of the species.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be
prepared Species Act. We published a notice outlining our reasons for
this determination in the Federal Register on October 25, 1983 (48 FR
49244).
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to NEPA in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, when the
range of the species includes States within the Tenth Circuit, such as
that of Gierisch mallow, under the Tenth Circuit ruling in Catron
County Board of Commissioners v. U.S. Fish and Wildlife Service, 75
F.3d 1429 (10th Cir. 1996), we will undertake a NEPA analysis for
critical habitat designation and notify the public of the availability
of the draft environmental assessment for this proposal when it is
finished.
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized,
(2) Use the active voice to address readers directly,
(3) Use clear language rather than jargon,
(4) Be divided into short sections and sentences, and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. We determined that there are no tribal
lands that are occupied by the Gierisch mallow that contain the
features essential for conservation of the species, and no tribal lands
unoccupied by the Gierisch mallow that are essential for the
conservation of the species. Therefore, we are not proposing to
designate critical habitat for the Gierisch mallow on tribal lands.
References Cited
A complete list of references cited in this rulemaking is available
on the Internet at https://www.regulations.gov at Docket No. FWS-R2-ES-
2012-0049 and upon request from the Arizona Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this package are the staff members of the
Arizona Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
[[Page 49917]]
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend Sec. 17.12(h) by adding an entry for ``Sphaeralcea
gierischii'' to the List of Endangered and Threatened Plants in
alphabetical order under ``Flowering Plants.''
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family Status When Critical Special
Scientific name Common name listed habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Sphaeralcea gierischii........... Gierisch mallow..... U.S.A (AZ, UT)...... Malvaceae........... E ........... 17.96(a) NA
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. In Sec. 17.96, amend paragraph (a) by adding an entry for
``Sphaeralcea gierischii (Gierisch mallow),'' in alphabetical order
under the family Malvaceae, to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Malvaceae: Sphaeralcea gierischii (Gierisch mallow)
(1) Critical habitat units are depicted for Washington County,
Utah, and Mohave County, Arizona, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of
Gierisch mallow consist of the following components:
(i) Appropriate geological layers or gypsiferous soils, in the
Harrisburg Member of the Kaibab Formation, that support individual
Gierisch mallow plants or their habitat, within the elevation range of
775 to 1,148 m (2,477 to 3,766 ft). Appropriate soils are defined as:
(A) Badland,
(B) Fluvaquents and Torrifluvents,
(C) Riverwash,
(D) Cave-Harrisburg-Grapevine complex,
(E) Grapevine-Hobcan complex,
(F) Nikey-Ruesh complex,
(G) Gypill-Hobog complex,
(H) Hobog-Tidwell complex,
(I) Hobog-Grapevine complex,
(J) Grapevine-Shelly complex, and
(K) Hindu-Rock outcrop-Gypill complex.
(ii) Appropriate Mojave desert scrub plant community and associated
native species for the soil types at the sites listed in paragraph
(2)(i) of this entry.
(iii) The presence of insect visitors or pollinators, such as the
globemallow bee and other solitary bees. To ensure the proper suite of
pollinators are present, this includes habitat that provides nesting
substrate for pollinators in the areas described in paragraph (2)(ii)
of this entry.
(iv) Areas free of disturbance and areas with low densities or
absence of nonnative, invasive plants, such as red brome and
cheatgrass.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(4) Critical habitat map units. Data layers defining map units were
created using Albers Equal Area (Albers) North American Datum 83 (NAD
83) coordinates. The maps in this entry, as modified by any
accompanying regulatory text, establish the boundaries of the critical
habitat designation. The coordinates or plot points or both on which
each map is based are available to the public at the Service's Internet
site (https://www.fws.gov/southwest/es/Arizona/), Regulations.gov
(https://www.regulations.gov), at Docket No. FWS-R2-ES-2012-0049, and at
the field office responsible for this designation. You may obtain field
office location information by contacting one of the Service regional
offices, the addresses of which are listed at 50 CFR 2.2.
(5) Index map follows:
BILLING CODE 4310-55-P
[[Page 49918]]
[GRAPHIC] [TIFF OMITTED] TP17AU12.000
(6) Unit 1: Starvation Point Unit, Mohave County, Arizona, and
Washington County, Utah. Map of Units 1 and 2 follows:
[[Page 49919]]
[GRAPHIC] [TIFF OMITTED] TP17AU12.001
(7) Unit 2: Black Knolls Unit, Mohave County, Arizona. Map of Units
1 and 2 is provided at paragraph (6) of this entry.
* * * * *
Dated: August 6, 2012.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-20086 Filed 8-16-12; 8:45 am]
BILLING CODE 4310-55-C
